author: WENTWORTH, Judge.

text:
    STATE of Florida ex rel. CITY OF GAINESVILLE, Petitioner, v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Respondent.
    No. AC-427.
    District Court of Appeal of Florida, First District.
    Jan. 12, 1982.
    Rehearing Denied Feb. 11, 1982.

      David LaCroix, Gainesville, for petitioner.
    Herbert Webb, Gainesville, for respondent.
    David E. Cardwell, Lakeland, amicus curiae.
   WENTWORTH, Judge.

This cause is before us on petition for a writ of mandamus by which the state, on behalf of the City of Gainesville, challenges respondent’s refusal to make payments into a community redevelopment trust fund. Respondent, the St. Johns River Water Management District, is a special taxing district which, in the circumstances of this case, we conclude, may not be compelled to make the contested redevelopment payments.

The City of Gainesville, pursuant to Chapter 163, Florida Statutes, adopted a community redevelopment plan which includes the revitalization of certain properties within respondent’s geographical jurisdiction. The city also established a redevelopment trust fund to which, pursuant to § 163.387, Florida Statutes, affected taxing authorities are required to annually appropriate the ad valorem tax increment resulting from increased property valuation due to the redevelopment project. Respondent has refused to appropriate this increment to the redevelopment trust fund, contending that such an appropriation would exceed the constitutional limit of its taxing authority as a special taxing district.

Article VII, section 9(a), Florida Constitution, allows the legislature to authorize special districts, among other taxing entities, to levy ad valorem and other taxes “for their respective purposes ” [e.s.]. Florida law has long established that a special taxing district may not be created with general taxing authority, and may be empowered to levy only those taxes bearing a substantial relation to the special purpose of the taxing district. In the present case the city’s development plan has not been shown to have any relation to water management purposes or concerns. We therefore conclude that respondent, as a special taxing district created for water management purposes, is prohibited by article VII, section 9(a), Florida Constitution, from levying taxes for, or making tax appropriations to, the redevelopment trust fund involved in this case.

Petitioner has suggested that the § 163.-387, Florida Statutes, ad valorem tax increment appropriation is merely a measurement formula which does not require the levy or allocation of ad valorem taxes, and which may be financed by funds from other sources. We are not persuaded by this argument, which ignores the financial realities of the tax increment appropriation imposed by § 168.387, and which attempts to accomplish indirectly that which may not constitutionally be done directly. Although State v. Miami Beach Redevelopment Agency, 392 So.2d 875 (Fla.1981), held that such an appropriation is not necessarily “payable from ad valorem taxation” within the context of article VII, section 12, Florida Constitution, that case did not involve an article VII, section 9 challenge, and the required appropriation was clearly related to the purpose of the taxing entity in the Miami Beach case.

The parties present additional issues with respect to interpretation of the millage restrictions in article VII, section 9(b), Florida Constitution, and as to statutory priority between § 163.387(2) and the provisions of § 373.503, Florida Statutes, which permit taxes by the respondent district solely for purposes related to water management. We find that resolution of these issues is unnecessary because of the primacy of the constitutional restraints in article VII, section 9(a), supra, which prevent enforcement of the literal terms of § 163.387(2) against respondent. We need not rely on either the similar restrictive language of Chapter 373, Florida Statutes, or the more complex terms of article VII, section 9(b), although both provisions appear to be entirely consistent with section 9(a) as above construed.

Since we conclude that the § 163.387 redevelopment ad valorem tax increment appropriation may not be required of the respondent special taxing district, created for a purpose unrelated to and not shown to substantially benefit from community redevelopment, we decline to grant the relief requested. Accordingly, the petition for a writ of mandamus is denied.

SHAW and THOMPSON, JJ., concur.

      . Okaloosa County Water and Sewer Dist. v. Hilburn, 160 So.2d 43, 45 (Fla.1964): “We have many times held that taxes raised for the purpose of one governmental unit may not be employed to accomplish the performance of the functions of another....”

        Consolidated Land Co. v. Tyler, 101 So. 280, 281 (Fla.1924): “[I]t is within the law-making power of the Legislature ... to impose particular taxes upon property within the district . . . when the formation of the district has at least some special or peculiar relation to benefits or advantages to accrue.... ”

        Amos v. Mathews, 126 So. 308, 322 (Fla.1930): “ ‘A particular district or locality cannot lawfully be taxed for the cost of an undertaking which results only in a general public benefit.’ But a single project in some instances may constitute a dual purpose, and therefore may justify a levy of taxes appropriate to the purpose. ...”

        See also, State ex rel. Milton v. Dickenson, 33 So. 514 (Fla.1902); cf., Crowder v. Phillips, 1 So.2d 629 (Fla.1941).

      . § 163.387 Redevelopment trust fund.—

      (2) Upon the establishment of a redevelopment trust fund as herein provided, each taxing authority except school districts shall annually appropriate to such fund a sum which is no less than the increment of ad valorem tax revenues as defined and determined in paragraphs (l)(a) and (b) accruing to said taxing authority.

      . § 373.503 Manner of taxation.—
      (1) It is the finding of the Legislature that the general regulatory and administrative functions of the districts herein authorized are of general benefit to the people of the state and should fully or in part be financed by general appropriations. Further, it is the finding of the Legislature that water resources programs of particular benefit to limited segments of the population should be financed by those most directly benefited. To those ends, this chapter provides for the establishment of permit application fees and a method of ad valorem taxation to finance the activities of the district.
      (2)(a) The Legislature declares that the millage authorized for water management purposes by s. 9(b), Art. VII of the State Constitution shall be levied only by the water management districts set forth in this chapter and intends by this section to prevent any laws which would allow other units of government to levy any portion of said millage. However, this does not preclude such units of government from financing and engaging in water management programs if otherwise authorized by law.
      (b) Pursuant to s. ll(a)(21), Art. Ill of the State Constitution, the Legislature hereby prohibits special laws or general laws of local application pertaining to the allocation of any portion of the millage authorized for water management purposes by s. 9(b), Art. VII of the State Constitution to any unit of government other than those districts established by this chapter.

      (3) The districts may levy ad valorem taxes on property within the district solely for the purposes of this chapter and of chapter 25270, Laws of Florida, 1949, as amended

      [e.s.] 1980 Supp., as amended s. 6, ch. 80-259, Laws of Florida.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FROMBERG, FROMBERG & ROTH PROPERTIES, INC., a Florida corporation, Appellant, v. SPRINGTREE I, LTD., a Florida limited partnership; Springtree II, Ltd., a Florida limited partnership; Springtree III, Ltd., a Florida limited partnership; and Property Professionals, Inc., a Florida corporation, Appellees.
    No. 81-516.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Fowler, White, Burnett, Hurley, Baniek & Strickroot and Rodger Traynor, Jr., Miami, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and William C. Hearon, Miami, for appellees.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Plaintiff seeks review of a final order involuntarily dismissing its complaint seeking specific performance of a contract to purchase three parcels of real estate owned by three different limited partnerships, encompassing a project consisting of 226 units for a purchase price of $3,900,000.00. We affirm.

There was never a meeting of the minds as to all the terms of the agreement. The agreement provided that there would be attached to it, as Exhibit H, a proposed “wrap around” mortgage. The parties never agreed on the terms of such a mortgage, which was to be in the amount of $3,400,-000.00 and, therefore, there was never a meeting of the minds; ergo, no contract.

The provision relating to the “wrap around” mortgage was an integral part of the contract; it was never agreed to; it was obviously an essential element, particularly when the property was titled in three different ownerships and encumbered by five existing mortgages.

Counsel for the appellant relies heavily on the 1929 case of Fox v. Korshinsky, 97 Fla. 503, 121 So. 560 (1929). We find this case not to be applicable to the case at bar. In the cited case the total price was $3,000.00; there was one ownership, one vacant parcel, and specific deferred annual payments. In the instant case, the total cost, the multiplicity of titles, the number of existing mortgages, together with the problems incident to the “wrap around” mortgage as contrasted to the three annual payments, clearly demonstrates a distinction between the cited case and the case sub judice.

e Therefore, for the reasons above stated, the final order of involuntary dismissal under review be and the same is hereby affirmed.,

Affirmed.

      . Both parties seek attorneys’ fees for services rendered in this court. We deny same because the basis for the attorneys’ fees is the contract which, by this , opinion, we have found never came into existence; therefore, no binding contract between the parties and, as a consequence, no right to attorneys’ fees.

      . If we did not affirm because of no contract, we would affirm because the plaintiff did not have “clean hands” having given a check as a deposit on the contract knowing that it had no funds in the bank to cover it. Busch v. Baker, 79 Fla. 113, 83 So. 704 (1920); Dale v. Jennings, 90 Fla. 234, 107 So. 175 (1925); Faber v. Landman, 123 So.2d 405 (Fla.2d DCA 1960); 22 Fla.Jur.2d, Equity, § 50.


author: SCHWARTZ, Judge.

text:
    MEEKINS-BAMMAN PRESTRESS, INC., a Florida corporation, Appellant, v. BETTER CONSTRUCTION, INC., a Florida corporation, Appellee.
    No. 81-525.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Rehearing Denied Jan. 29, 1982.

      Bamman & Bowman and Daniel S. Mandell, Pompano Beach, for appellant.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks and Gary S. Brooks, Miami, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

Meekins-Bamman Prestress, Inc. (Mee-kins) appeals from an adverse judgment rendered after á non-jury trial because of its refusal to perform a purported agreement to supply Better Construction, Inc. with the concrete roof structure for a school building upon which Better had successfully bid. Upon the conclusion that no enforceable contract between Meekins and Better ever came into being, we reverse the judgment below.

The instrument sued upon is a printed Meekins form, filled in with typewriting to reflect the details of the particular job. Omitting the portions which are irrelevant to the decisive issue, which is the very existence of a valid agreement, the document, directed — as in a business letter — to “Better Construction”, states, “Thank you for your acceptance of [typed] our proposal [printed]” of $56,000 for the concrete forms. Other printed provisions expressly state:

The above quotation is subject to acceptance by the addressee, and approval by an officer of Meekins-Bamman Prestress, Inc. within thirty (30) days of the above date.
***** *
Note that this proposal is a quotation and does not become a Contract until accepted by the Purchaser (or an officer of the accepting corporation) and approved as a Contract by Meekins-Bamman Prestress, Inc... .

The bottom of the document, after the signature lines, contains the printed request:

PLEASE SIGN AND RETURN ALL COPIES IMMEDIATELY.

We will forward one (1) approved copy to you.

The document was prepared by a Meekins sales representative named Richard Chatel-lier, who was not an officer of the corporation. The Meekins half of the signature portion appears as follows:

RICHARD CHATELLIER [typed] MEEKINS-BAMMAN PRESTRESS, INC.
By: /s/ Richard Chatellier_ Approved: Meekins-Bamman Prestress, Inc.
By_-_, 197_
Title___

In that form, the proposal was transmitted to Better which “accepted” it through its vice-president, Ortega. Although, as the foot of the agreement directed, copies of the document were then returned to Mee-kins, the defendant never filled in the “Approved, Meekins ... By” blanks nor otherwise expressed its “approval” of the agreement as required by its specific terms. Because of Meekins’ failure to deliver the materials for the specified price, Better successfully sued for the $7,400 difference between that figure and the next lowest bid for the same work. This result cannot stand.

It is universally held that a document such as the one involved in this case, which specifically conditions the contractual effectiveness of a proposal by a projected seller upon its own subsequent approval, constitutes no more than a solicitation to the prospective purchaser to make an offer itself. As is said in 1 A. Corbin, Contracts § 88 (1963):

When one party solicits and receives an order or other expression of agreement from another, clearly specifying that there is to be no contract until ratification or assent by some officer or representative of the solicitor, the solicitation is not itself an offer; it is a request for an offer. The order that is given upon such a request is an offer, not an acceptance. The soliciting party is not specifying a mode of acceptance when he specifies assent or ratification ‘at the home office’ as a prerequisite. The party complying with the request, by giving the order or otherwise, is making an offer. ...

Since the offer thus deemed to have been made by Better was not accepted — or, in the words of the instrument, “approved”— by the offeree Meekins, it follows that no binding agreement was ever formed. This conclusion is mandated by general principles of offer and acceptance, 11 Fla.Jur.2d Contracts § 24 (1979), as they have been particularly applied to equivalent legal situations. Oliver Farm Equipment Sales Co. v. Walters, 109 Ind.App. 551, 37 N.E.2d 9 (1941); McWhorter v. Employers Mutual Casualty Co., 28 Wis.2d 275, 137 N.W.2d 49 (1965); 77 C.J.S. Sales § 28b (1952); see also, Goodwin v. Jacksonville Gas Corp., 302 F.2d 355, 362 (5th Cir. 1962); 11 Fla.Jur.2d Contracts § 139 (1979); compare, Knickerbocker Fine Cars, Inc. v. Peterson, 118 So.2d 639 (Fla. 3d DCA 1960).

The appellee argues, however, that it was entitled to rely upon Chatellier’s “apparent authority” to enter into a contract on Meekins’ behalf. This contention cannot be sustained. In the first place, the record is devoid of any evidence that, as required to uphold such a claim, Meekins itself took any affirmative action to mislead Ortega into the belief that Chatellier, a non-officer, possessed the ability to bind his principal. See Taco Bell of California v. Zappone, 324 So.2d 121 (Fla. 2d DCA 1975), and cases cited. Second, and more significant, the apparent authority claim is belied and negated on the face of the instrument itself, which — although presented to Better with Chatellier’s signature already upon it — nevertheless stated that it did not become a contract unless it was, obviously thereafter, approved by an .officer of Mee-kins. Under these circumstances, Better cannot be heard to say that Chatellier’s signature was enough.

[Wjhere an order for goods taken by a salesman stipulates, or is understood to require, that it is to be approved by the seller principal, or that it is subject to approval by the home office, the order does not become a contract of sale until it is so approved, unless such condition is waived by the seller; and, where the order signed by the buyer shows on its face that it is subject to approval of the seller principal, the buyer is bound to know that it is not binding until it is so approved, [e. s.j

77 C.J.S. § 28b, supra, at nn.78-81. Accord, e.g., Oliver Farm Equipment Sales Co. v. Walters, supra; B.A. Eckhart Milling Co. v. Illinois Doughnut & Cake Co., 314 Ill.App. 196, 40 N.E.2d 826 (1942); Waxelbaum v. Schloss, 131 App.Div. 826, 116 N.Y.S. 42 (1909); McWhorter v. Employers Mutual Casualty Co., supra. In Knickerbocker Fine Cars, supra, this court, in dealing with an agreement it deemed decisively different from the present one, stated the law which is directly applicable here.

Appellant cites a number of cases from other jurisdictions, encyclopedias and texts to the effect that an order taken by a salesman will not immediately create a contract if confirmation by the salesman’s principal is expressly or impliedly made a term or condition of the agreement. For the purpose of this case, we can assume that the foregoing generality is applicable in Florida. The statement of a general proposition will not, of itself, solve a particular problem. In the cases cited by appellant in support of the generality, the instrument contained words like the first part of the sentence in the instant paper, but did not contain the second part. Had the instrument here read, ‘This order is not binding unless authorized by an officer of the company,’ and stopped there, appellant’s cases would be in point. In the face of such language (if the purported buyer is made aware of them) these cases hold that the buyer is in no position to assert that the circumstances justified him in presuming that the agent has the requisite authority. In short, an agent’s authority which might otherwise be apparent is made unapparent by the words of the instrument and the words are effective for this purpose if the one dealing with the agent

can fairly be charged with knowledge of the existence and usual meaning of the words. This is expressly the way the court dealt with the problem in Oliver Farm Equipment Sales Co. v. Walters, 109 Ind.App. 551, 37 N.E.2d 9, 11, a case cited by the appellant. The court there reasoned:

‘The real question before us is, do the facts in the instant case warrant a conclusion that such apparent or ostensible agency existed and could properly be relied upon by the appellee at the time of the so called “order"?
‘We think the so-called “order” or contract between Bledsoe and the appellee completely negatives and nullifies the idea that the appellee thought he was dealing with one (Bledsoe) who had authority to bind the appellant for it contained the specific provision that I agree that this order is subject to acceptance by * * * and this contract shall be of no effect whatever until such acceptance in writing is given.’

118 So.2d at 640-41.

Better also claims that the location of the words “Approved: Meekins. Bamman Prestress, Inc.” directly, rather than two or three spaces under the line on which Chatel-lier signed implies that it was he who had given that approval. Again, this view would render much of the language of the proposal (as well as the “By_,” and “Title_” spaces which follow “Approved: Meekins... ”) entirely meaningless. Such an interpretation is unacceptable. See Jacobs v. Parodi, 50 Fla. 541, 39 So. 833 (1905). Considering the document as a whole, see, Jackson v. Parker, 153 Fla. 622, 15 So.2d 451 (1943), it is obvious that Chatellier’s name and signature appear only in his capacity as the employee making the proposal and that the document had later to be “Approved ... By ...” a Meekins officer who never did so. We cannot hold that the entire legal meaning of the instrument is completely altered by the simple and plainly inconsequential nonexistence of three millimeters of empty space.

The judgment under review is reversed and the cause remanded with directions to dismiss the complaint with prejudice.

Reversed.

      . This was because a miscalculation had caused an underestimate of the amount of concrete required and therefore the cost of the job. Our disposition of the case makes it unnecessary to consider Meekins’ alternative contention that the unilateral mistake entitled it to rescind any resulting obligation. Compare State Board of Control v. Clutter Construction Corp., 139 So.2d 153 (Fla. 1st DCA 1962), cert. denied, 146 So.2d 374 (Fla.1962) and Florida Cranes, Inc. v. Florida East Coast Properties, Inc., 324 So.2d 721 (Fla. 3d DCA 1976) with

        Graham v. Clyde, 61 So.2d 656 (Fla.1952) and Lassiter Construction Co. v. School Board for Palm Beach County, 395 So.2d 567 (Fla. 4th DCA 1981).

      2. As does the one involved in this case.


author: BOARDMAN, Judge.

text:
    Ricky Inez GRIMSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 81-1106.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Ricky Inez Grimsley appeals the revocation of his probation. The trial court found him to have violated conditions (7), requiring appellant to comply with the instructions of his probation supervisor, and (9), requiring him to make restitution, as well as failing to comply with section 945.30, Florida Statutes (1979), requiring him to contribute $10.00 per month toward the cost of his supervision. Appellant was given a split sentence of three years in prison to be followed by one year on probation.

The trial court had adjudicated appellant insolvent at the time of entry of the order of probation, and there was no evidence presented concerning whether or not appellant was able to make restitution or pay the costs of supervision. Thus revocation on those grounds was improper. Cox-on v. State, 365 So.2d 1067 (Fla.2d DCA 1979).

The finding of a violation of condition (7), failure to comply with the probation supervisor’s instructions to report monthly to the Sheriff’s Office in Clewi-ston, is supported by substantial, competent evidence but is a technical violation. Nevertheless, it is clear to us from the court’s comments that the trial court was incensed at appellant’s complete lack of effort to contact his probation supervisor and his complete indifference to his obligations under his probation order and that the technical nature of this violation was not a mitigating factor in the eyes of the trial court. We are satisfied that the trial court would have revoked appellant’s probation on this ground alone.

Accordingly, appellant’s judgment and sentence is AFFIRMED. However, this af-firmance is without prejudice to appellant’s raising the illegality of his sentence under Villery v. Florida Parole & Probation Com mission, 396 So.2d 1107 (Fla.1980), by way of a Florida Rule of Criminal Procedure 3.850 motion filed in the trial court.

HOBSON, A.C.J., and OTT, J., concur.


text:
    Dean C. HALL, Appellant, v. FLORIDA PAROLE & PROBATION COMMISSION, Appellee.
    No. AF-375.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1982.
    Dean C. Hall, pro se, for appellant.
    Rosa H. Carson, Asst. Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for appellee.
   WENTWORTH, Judge.

The Commission in this case moves to dismiss an appeal commenced by notice filed August 18, 1981, from a Commission order dated July 14, 1981. That order denied a petition filed June 17, 1981, for review of a prospective parole release date apparently established initially on January 21, 1981. Appellant had previously petitioned the Commission for review of that PPRD on February 13, 1981, and by action on March 18, 1981, review was granted by reduction of the salient factor score without change in the release date. We dismiss the appeal because we agree with the Commission’s contention that “Proper review could have been sought from the Commission within 60 days of Commission action taken March 18, 1981. Appellant failed to do so and' now is precluded from prosecuting these issues on appeal to this court.”

The Commission correctly notes that the new information asserted by appellant as grounds for review on June 17, 1981, consisted of additional proof on an issue argued in his review petition of February 13, 1981, and denied by order of March 18, which was not timely challenged. Appellant’s petition was clearly not within the statutory conditions for a right of review under § 947.-173-174(1), Florida Statutes. It presented no issue other than asserted error in the factual predicate for the earlier order which was not appealed, and the Commission properly rejected the petition, on the ground of untimeliness, by an order which does not provide any basis for the appellant’s argument here on the merits of prior final agency action. § 947.16(4), § 947.-174(2), Florida Statutes.

The motion is granted and the appeal is dismissed.

McCORD and LARRY G. SMITH, JJ., concur.


text:
    SHANDS TEACHING HOSPITAL & DIVISION OF RISK MANAGEMENT, Appellant, v. Lynn Kathleen SHARP, Appellee.
    No. VV-401.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1982.
    Anthony J. Salzman, of Jones & Lang-don, Gainesville, for appellant.
    Ause Brown, Gainesville, for appellee.
   WENTWORTH, Judge.

The appellant employer asserts absence of competent substantial evidence to support a May 21,1981, workers’ compensation order (1) determining that maximum medical improvement occurred on July 2, 1979, (2) awarding 20% permanent partial disability compensation based on diminution of wage earning capacity, and (3) awarding fees and costs. We affirm.

The claimant Sharp was injured in December 1978 when she slipped in a puddle and fell while working as an operating room technician, in which employment she had been engaged about 15 years. She was paid temporary disability compensation for periods ending May 24, 1979. Appellant then denied permanent disability compensation, and her claim was heard on April 21, 1980.

The argument that maximum medical improvement occurred earlier than July 2, 1979, relates only to the award of temporary disability compensation for five and a half weeks beyond the time when it was voluntarily paid, up to May 24. Claimant had been released by her treating physician to attempt a return to work during this time, and she had unsuccessfully attempted nursing duties on one occasion. She was also, according to reports in evidence, continued on medication and traction on her final visit of April 17, 1979, and was later referred for orthopedic consultation for continued pain. The date fixed by the deputy for termination of temporary disability, July 2, 1979, was the date on which that consultant examined her and reported that he “would recommend continued conservative treatment.” The deputy’s rejection of an earlier maximum medical improvement date is supported by that evidence, together with her, physician’s testimony, by deposition on May 24, 1979, that he expected her symptomatic condition would improve further so “it will get to where this is manageable from her standpoint.”

Although the evidence and findings are marginal in support of the award for earning capacity loss, we conclude that the order can be affirmed on this issue also based on its “finding from the testimony of the claimant and the testimony of Dr. Freeman and Dr. Mann.” The latter, physician had knowledge of her condition prior to the accident, and the treating physician acknowledged that her residual from the com-pensable injury was the last “cog on the gear wheel” in her neck joint condition. As to her physical ability to do her former nursing work he stated he “would qualify that as I have here that from time to time she may be very uncomfortable doing that.” He gave a qualified opinion that she had no objective indication of anatomic dysfunction, but as to specific restrictions on her physical activity he responded she should “avoid doing activities that . . . make the neck be more sore and . . . lifting with the arms and shoulders are one of the key things. . . . ” He acknowledged that operating room technicians do have to lift fairly heavy instrument loads and as to her pain from such activity he said:

I was concerned that this was probably very true because this is the type of thing that usually will aggravate a neck problem of her type, but as far as being disabled, I think it is a matter of pain tolerance. If she could grit her teeth and suffer whatever pain she gets from doing that — she wasn’t disabled to do that.

The medical evidence as a whole was thus consistent with claimant’s testimony as to continued marked difficulty in physical activity, and as to causal connection between the accident and that limitation, we conclude that the record adequately indicates the existence of some physical impairment as a necessary predicate for the award of compensation for permanent partial disability based on 20% diminution of wage earning capacity under the statute applicable to this 1978 accident.

We note also a lack of precision, to say the least, in evidence bearing on the measurement of the degree of claimant’s loss of earning capacity. Such issues, however, are within the deputy’s area of special competence as factfinder, and necessarily involve factors unique to claimant’s employment history and general credibility. We accordingly decline to second guess his assessment on that point.

The order is therefore affirmed.

ROBERT P. SMITH, Jr., C.J., and MILLS, J., concur.


author: PER CURIAM. ERVIN, Judge,

text:
    J. Edwin WHITE, Appellant, v. Miley MIERS, Jeanette Clark, and Capital Realty Associates, Inc., a Florida corporation, Appellees.
    No. AD-478.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1982.
    Rehearing Denied Feb. 11, 1982.

      Barry S. Richard of Roberts, Miller, Bag-gett, Laface, Richard & Wiser, Tallahassee, for appellant.
    John K. Folsom of Folsom & Steinmeyer, Harry Lewis Michaels, Tallahassee, for ap-pellees.
   PER CURIAM.

AFFIRMED.

BOOTH and THOMPSON, JJ., concur.

ERVIN, J., dissents with written opinion.

ERVIN, Judge,

dissenting.

Although the Florida Supreme Court will not grant certiorari review from a per cu-riam affirmance (PCA) without opinion, I nevertheless feel that I have an obligation to the parties before this court to state my reasons for dissent. This is an appeal from the lower court’s order dismissing the appellant’s complaint with prejudice. The majority’s PCA obviously approves the dismissal. I do not.

In 1979, the plaintiff/appellant brought an action against Miley Miers Realty, Inc. and Miley Miers individually, alleging defendants breached a realty contract due to their failure to share with appellant a real estate commission. The trial court directed a verdict in favor of Miers individually, finding that there was insufficient evidence to hold that Miers in his individual capacity was a party to the contract. The ease proceeded to trial against the corporation and the jury rendered a verdict for the appellant against it.

In December, 1980, the appellant filed another complaint against Miers individually, Jeanette Clark, an associate of Miers, and Capital Realty Associates, Inc., a successor corporation to Miley Miers Realty, Inc., alleging in Count I that Miers and Clark converted a portion of the commission belonging to the appellant, and in Count II that Miley Miers Realty, Inc. was dissolved and Capital Realty Associates, Inc. was formed shortly after the verdict as a scheme to defraud the appellant of his portion of the commission; that both corporations were the alter ego of Miers, and, because of defendants’ fraud, appellant sought to pierce the corporate veil. The trial court dismissed Count II of the complaint without prejudice. The appellant did not elect to amend the second count, maintaining on appeal its correctness as originally pled. He did, however, move to amend Count I of the complaint in order to allege a theory of restitution for unjust enrichment. The trial court then granted summary judgment for Miers and Capital Realty on Count I, which included the proposed amendment on res judicata grounds. The court also dismissed with prejudice the proposed amendment to Count I and Count II for failure to state a cause of action. All counts against Clark were dismissed with prejudice for failure to state a cause of action.

In my judgment the principle of res judi-cata is inapplicable as a bar to the later causes of action as there was not the required identity as to them with the prior cause. See Gordon v. Gordon, 59 So.2d 40 (Fla.1952); Prall v. Prall, 58 Fla. 496, 50 So. 867 (1909); McGregor v. Provident Trust Co., 119 Fla. 718, 162 So. 323 (1935); State v. Dubose, 152 Fla. 304, 11 So.2d 477 (1943); Donahue v. Davis, 68 So.2d 163 (Fla.1953); Daniel v. Dept. of Transportation, 259 So.2d 771 (Fla. 1st DCA 1972); Reynolds v. Reynolds, 117 So.2d 16 (Fla. 1st DCA 1959). In the instant case, notwithstanding facts reflecting that the 1978 law suit and the later complaint arose out of the same transaction, the first trial involved only a breach of contract action, while Count I of the later complaint alleged conversion and unjust enrichment, which sounded in tort and equity respectively. Although the doctrine of collateral estoppel (sometimes referred to as estoppel by judgment), rather than res judi-cata, can be applied as a bar when the respective causes of action are different, Carol City Utilities, Inc. v. Dade County, 183 So.2d 227 (Fla.3d DCA 1976), collateral estoppel only bars a later action involving facts that were actually litigated in the earlier litigation. Gordon v. Gordon, supra; Carol City Utilities, Inc. v. Dade County, supra. The only issue determined in the prior case was that Miley Miers was not liable in his individual capacity because he was not a party to the contract. This finding, in my view, would only preclude a contractual action, and would have no bearing on an individual’s liability as to tortious acts or acts involving a breach of fiduciary duty. Clearly the elements necessary to prove conversion and unjust enrichment, the theories later advanced, were not litigated at the previous trial.

I believe also that all the counts of the complaint state a cause of action. Although the complaint and the attempt to amend it were not artfully drafted, they do, in my judgment minimally state the ultimate facts necessary to obtain relief under modern and liberal rules of pleading. See Fla.R.Civ.P. 1.110(b).


author: DANIEL S. PEARSON, Judge.

text:
    Ralph G. BOALT, Jr., Appellant, v. CITY COMMISSIONERS, CITY OF MIAMI, a municipal subdivision of the State of Florida, Appellee.
    No. 81-770.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.

      R. Stuart Huff and Gregg J. Ormond, Coral Gables, for appellant.
    George F. Knox, Jr., City Atty. and Mark A. Valentine, Asst. City Atty., for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Boalt’s application for a zoning variance was denied by the City’s Zoning Board and the denial affirmed by the City Commission. Boalt filed a complaint in the Circuit Court seeking review of the denial of the zoning variance by a trial de novo. The City, contending that Boalt was not, as a matter of law, entitled to this method of review, moved for judgment on the pleadings. The trial court granted the City’s motion, and Boalt appeals.

The trial court’s ruling was bottomed on its determination that the City Commission had not elected to be bound by the provisions of Section 163.250, Florida Statutes (1979), which provides for review of the decisions of boards of adjustment (here the City Commission) by a trial de novo, at the election of the party seeking such review. In order to make that determination, the trial court had to find that the City had not taken “formal suitable action declaring its election to proceed under the provisions of [Chapter 163],” as required by Section 163.-315, Florida Statutes (1979), and had not exercised “any or all of the powers granted under the provisions of [Chapter 163] ... [by the] passage of an appropriate ordinance to that effect by the governing body.” See § 163.175(1), Fla.Stat. (1979).

Boalt contends that the action required by Sections 163.315 and 163.175 was in fact taken by the City when, in 1973, it passed Ordinance No. 8198 dealing with variances and providing for the method of appeal from adverse variance decisions. That ordinance states, in pertinent part:

“Any person or persons, jointly or severally, aggrieved by any action of the City Commission, affirming, modifying, or reversing a decision of the Zoning Board, or any officer, department, board, commission or bureau of the City may seek recourse to the courts as provided by the laws of Florida.” (emphasis supplied).

The narrow question before us is whether the emphasized language in the ordinance effectively adopts Section 163.250. We decide it does.

In Bell v. City of Sarasota, 371 So.2d 525 (Fla. 2d DCA 1979), the City of Sarasota had sought review in the Circuit Court of a Board of Adjustment decision granting a variance. The court of appeal found the City’s petition for review a permissible exercise of the right given an aggrieved party under Section 163.250, because the City had passed an appropriate ordinance effective to adopt Section 163.250. The subject ordinance, Section 43-11 of the City of Sarasota Code, read:

“Any person or persons, jointly or severally, aggrieved by any decision of the Board of Adjustment, or any officer, department, board, commission or bureau of the City may apply to the circuit having jurisdiction in Sarasota County for judicial relief within thirty (30) days after rendition of the decision by the Board of Adjustment in accordance with state law.” (emphasis supplied).

In our view, an ordinance providing for review “in accordance with state law,” held by the court in Bell to effectively adopt Section 163.250, is indistinguishable from Ordinance No. 8198 providing for recourse “as provided by the laws of Florida.”

The decision of the Second District Court of Appeal in Board of Adjustment of City of Fort Lauderdale v. Kremer, 139 So.2d 448 (Fla. 2d DCA 1962), equally supports our decision that the language used by the City of Miami in Ordinance No. 8198 was effective to adopt Section 163.250. There the party aggrieved by a Board of Adjustment variance decision was allowed review by trial de novo in the Circuit Court. The City Charter provided:

“Any person or persons, jointly or severally, aggrieved by any decision of the Board of Adjustment, may present to the Circuit Court of the county by an action in chancery for declaratory decree or equitable relief of complaint or petition duly verified in the manner provided by law and setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality, provided same is filed within thirty (30) days after such decision.” (emphasis in original).

The appellate court, endorsing the de novo review employed by the trial court, held that the emphasized language “petition duly verified in the manner provided by law” constituted a sufficient adoption of the de novo review procedures set forth in then Chapter 176.16, Florida Statutes, the predecessor to and functional equivalent of Section 163.250.

The City argues that the words “as provided by the laws of Florida” were intended to give an aggrieved party the right to proceed only by common law certiorari. But the unstated logic of Bell and Kremer is that the words “in accordance with state law” or “in the manner provided by law” must refer to the review procedures provided by statute or be virtually meaningless. That is so because no “law” is needed to give a Circuit Court jurisdiction to review by common-law certiorari the administrative action of a city.

“[B]y definition, certiorari review is not direct appellate review and is not provided for by law, but, entirely to the contrary, is only available, at the discretion of the court, when there is no other right to review provided by law.” G-W Development Corporation v. Village of North Palm Beach Zoning Board of Adjustment, 317 So.2d 828, 831 (Fla. 4th DCA 1975).

What the law does provide, however, is the statutory review in Section 163.250 either by way of statutory certiorari or de novo trial.

“In the case of appellate review of administrative decisions by statutory certio-rari, the ‘review’ is sometimes even broader and may be, as was the case with Ch. 176 ‘in the nature of a trial de novo.’ Dade County v. Carmichael, 165 So.2d 227, 229 (Fla. 3d DCA 1964).” G-W Development Corporation v. Village of North Palm Beach Zoning Board of Adjustment, supra, at 830.

Thus, what is provided by law is, at the election of the party aggrieved, a de novo trial or certiorari as a matter of right, not, as in the case of common law certiorari, as a matter of discretion. An ordinance that gives an aggrieved party the right to seek recourse as provided by law gives nothing at all if, as the City says, it allows an aggrieved party to seek review by common law certiorari. A fundamental principle of statutory construction teaches that we may not presume the City intended to promulgate a useless ordinance. See Dickinson v. Davis, 224 So.2d 262 (Fla.1969); G. A. v. State, 391 So.2d 720 (Fla. 1st DCA 1980); Department of Revenue v. The Merritt Square Corporation, 334 So.2d 351 (Fla. 1st DCA 1976).

The City cites no case, and our research has disclosed none, which even suggests that the language of Ordinance No. 8198 was ineffective to adopt Section 163.250. The holdings in Thompson v. City of Miami, 167 So.2d 841 (Fla.1964); City of Lakeland v. Florida Southern College, 405 So.2d 745 (Fla. 2d DCA 1981); Grefkowicz v. Metropolitan Dade County, 389 So.2d 1041 (Fla. 3d DCA 1980); City of Apopka v. Orange County, 299 So.2d 657, 660 (Fla. 4th DCA 1974) (rehearing), upon which the City relies for the proposition that the statutory procedure of Section 163.250 is inapplicable, are all based on the singular and critical fact that no action had been taken by the county or municipality to adopt the method of review provided by statute. That is not the case here.

Reversed and remanded for a trial de novo.

      . The City now concedes that Boalt was entitled to certiorari review in the Circuit Court and that the trial court was authorized to treat the complaint as a petition for certiorari and should not have dismissed Boalt’s action with prejudice. We would, of course, be compelled to reverse the judgment on this ground alone were it not that we decide that Boalt was entitled to the exact relief he sought, a trial de novo.

      . Section 163.250 provides:
      “Judicial review of decisions of board of adjustment. — Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any officer, department, board, commission, or bureau of the governing body, may apply to the circuit court in the judicial circuit where the board of adjustment is located for judicial relief within 30 days after rendition of the decision by the board of adjustment. Review in the circuit court shall be either by a trial de novo, which shall be governed by the Florida Rules of Civil Procedure, or by petition for writ of certiorari, which shall be governed by the Florida Appellate Rules. The election of remedies shall lie with the appellant.”

      . Our holding that the City of Miami’s passage of Ordinance No. 8198 effectively adopted Section 163.250 makes it unnecessary to address Boalt’s argument that the review rights accorded by Section 163.250 cannot constitutionally be dependent on the City’s decision to adopt that statute.

      . Unlike Boalt, the City of Sarasota did not seek a trial de novo, but, alleging that there was a lack of substantial competent evidence to support the Board’s action, sought review by certiorari. It is apparent from Bell, however, that had the City of Sarasota, as the party seeking review, elected to seek a trial de novo, it could have availed itself of this statutory alternative.

      . Section 176.16, Florida Statutes, read:
      “Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board or bureau of the governing body of said municipality, may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within thirty days after the filing of the decision in the office of the board.”
      While Section 176.16 does not, as does Section 163.250, expressly refer to “de novo” proceedings, the “statutory certiorari” right given by Section 176.16 is, as distinguished from common law certiorari, a de novo review. Board of Adjustment of City of Fort Lauderdale v. Kremer, supra.


author: DOWNEY, Judge.

text:
    Tommy YESBICK, Appellant, v. STATE of Florida, Appellee.
    No. 80-1537.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.
    Rehearing Denied Feb. 11, 1982.

      Dennis M. Zitzer of Barnett, Glass & Berkson, Chicago, Ill., for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant Tommy Yesbick seeks review of a judgment adjudicating him guilty of possession of cocaine and possession of methequalone and sentencing him to two consecutive five-year terms in prison and a fine of $10,000.

The evidence reflects that the police executed a search warrant on a residence in Pompano Beach. After knocking on the door the officers entered the residence and found Gail Stadler, Thomas Capozzi, Gloria Jean Yesbick, and Tommy Yesbick inside. None of the four individuals had physical possession of any controlled substance, but various controlled substances were found in different locations in the house, some in plain view, some not. Gail Stadler testified that she and Tom Capozzi came to the duplex in which appellant lived to be shown cocaine which they were going to “front.” They were shown cocaine by appellant, who told Stadler that it was cocaine, and she testified that neither she nor Capozzi had brought the cocaine with them. She related that appellant and Capozzi tested the cocaine with a “hot box” in the kitchen, and described appellant weighing the cocaine and putting approximately one ounce of it in a baggie. Appellant also gave her on consignment some quaalude tablets, which she and Capozzi were also going to front.

Detective Sergeant Andrew Grieco testified that two hot boxes were found in the duplex. Gail Stadler testified that there was another hot box in the house belonging to appellant which was not used apparently because it did not work.

Appellant poses six points for our consideration. We have fully considered all of them but will discuss only three.

On the date set for trial appellant moved for a continuance on the ground that his lawyer was involved in another case in New York. Appellant had already had at least three other continuances, and witnesses had been brought from out of state for the trial. Predictably, the trial judge was irritated by the conduct of appellant’s counsel. After argument on the motion for continuance, which was granted, the State apprised the court that appellant had sent a message through a third party to Gail Sta-dler, a State witness, that she better not be available for trial. The trial court treated this information as a motion to revise appellant’s bond and held a hearing after which appellant’s bond was increased from $15,000 to $100,000. Thereafter, appellant filed a motion for disqualification of Judge Tyson with supporting affidavits. The grounds for disqualification were that the affiants had a well grounded fear that Judge Tyson was prejudiced against appellant. The ground for the alleged fear of prejudice was that the judge was prejudiced against appellant’s counsel for his failure to appear on the trial date and the judge’s action in increasing appellant’s bond based on evidence of appellant’s threats against a State witness. The trial judge found the motion was legally insufficient and we agree. The record does not justify the alleged fear of prejudice expressed in the affidavits. Nor do we believe the trial judge overstepped his bounds in commenting on the motion and affidavits. It is axiomatic that a trial judge may not pass upon the truth of the facts alleged nor adjudicate the question of disqualification. Bundy v. Rudd, 366 So.2d 440 (Fla.1978); Management Corp. of America, Inc. v. Grossman, 396 So.2d 1169 (Fla. 3d DCA 1981). That rule was not violated here; the trial judge passed on the sufficiency of the motion for disqualification — he did not pass on its merits.

Appellant next questions the State’s ad-duction of evidence that appellant had sold a controlled substance to State witness Sta-dler on a date other than the date of the arrest. Appellant contends that Stadler and her boy friend, Capozzi, came to appellant’s home to sell drugs to appellant. The State’s theory of the case was that Stadler and Capozzi came to appellant’s home to buy drugs. In support of that theory Sta-dler testified that she and Capozzi had come to appellant’s home to look at his stock of contraband because they were going to sell contraband for appellant. After viewing the merchandise, they bought none from appellant. Part of the contraband found by the police upon their search of the house were quaaludes in Capozzi’s briefcase which Stadler said were part of the previous purchase from appellant.

Appellant contends the testimony regarding the previous purchase of quaa-ludes from him violates the rule in Williams v. State, 110 So.2d 654 (Fla.1959). We disagree. Evidence which has a reasonable tendency to establish the crime charged is not inadmissible because it points to another crime committed by the defendant. The evidence of the other transaction is quite relevant in this case because it explains appellant’s continuing relationship with Stadler and Capozzi and their reason for being at appellant’s home. It also tends to corroborate Stadler’s testimony that appellant was the seller and refutes appellant’s theory of the case.

Finally, appellant suggests the sentence imposed on him demonstrates the trial judge penalized him for going to trial and thereby the judge abused his discretion in sentencing. Appellant points out that he was sentenced to ten years in prison, while his codefendants, who pleaded guilty, all received less severe punishment than did appellant. Capozzi was sentenced to only four years and three months in prison and three years’ probation with the last three years of the prison sentence stayed. Gloria Stevens Poma (Yesbick) was given five years’ probation, and Stadler received two years’ probation. On the basis of that disparity in the sanctions imposed, appellant contends he was penalized for exercising his constitutional rights to a jury trial. Appellant relies upon such cases as Gallucci v. State, 371 So.2d 148 (Fla. 4th DCA 1979), and Gillman v. State, 373 So.2d 935 (Fla. 2d DCA 1979), reversed on other grounds, State v. Gillman, 390 So.2d 62 (Fla.1980), for the proposition that the trial court may not impose a heavier sentence upon a defendant as a penalty for availing himself of his constitutional right to a trial by jury. However, those eases do not support appellant’s contention vis-a-vis this case. In Gal-lucci and Gillman the trial judges made statements in the record which indicated that they might treat those who insisted on a trial differently than those who pleaded guilty. There are any number of reasons the trial judge may have found to justify the more severe sentence for appellant. He may have found appellant to be the prime mover here; and the evidence reflected that this was not appellant’s first drug related crime.

Having thoroughly examined all of appellant’s contentions, we fail to find any demonstration of reversible error.

AFFIRMED.

GLICKSTEIN, J., and PEARSON, DANIEL S., Associate Judge, concur.


author: DELL, Judge.

text:
    Roger Lee GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 80-1983.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.

      Zebedee W. Wright, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Appellant, Roger Lee Green, was indicted for the first degree murder of Gregory Woods and for the aggravated assault of Marie Parillo. He was tried before a jury and convicted on both the counts. He appeals his conviction and asserts as error the trial court’s failure to grant his motion to sever the trial of the first degree murder count from that of the charge for aggravated assault upon Marie Parillo; that the verdict finding him guilty of first degree murder is based solely upon circumstantial evidence and is insufficient as a matter of law; and that the court erred in failing to either grant his motion to strike or alternatively a mistrial because three or four members of the jury, during a view of the scene of the crime, went outside the area permitted for the view.

Marie Parillo, the victim of the aggravated assault, was returning to her hotel room at about 8:30 P.M. on January 26,1980. As she drove her car into the parking lot, she observed another automobile with its engine running. A man was standing by the car and appeared startled when Parillo entered the parking lot. Parillo says that she saw him following a short elderly man who had gray pants and a light shirt. She parked her car and sat there because she was afraid to get out. When appellant got back into his car, Parillo decided to get out of her car. As she walked past his car to get to the door of the motel, she heard someone say, “Hey” or “Lady” or “Hold it,” and when she turned around there was a gun pointed at her head. She looked at him, screamed very loudly, grabbed open the door and ran down the hall and upstairs to her room. She stated that she was in fear of her life.

Parillo testified that when she entered the lot, there was no one in the parking lot other than the appellant and the elderly man that was killed. Ms. Parillo positively identified the appellant, both at the lineup and in court as the person who held the gun to her head. She identified his clothing and identified his automobile. The witness, Kleffman, testified that he was in his room at about 8:30 P.M. when he heard a woman scream. Five to ten seconds later he heard a shot. He went to the parking lot and observed the driver’s door open with a body lying by the car. Appellant asserted an alibi as his defense and presented a witness who testified that he was home at the time the shooting occurred. The murder case is based wholly on circumstantial evidence. The assault case is based upon direct evidence.

Appellant contends his motion to sever should have been granted because the offenses were improperly charged in a single indictment, or alternatively, to promote a fair determination of his guilt or innocence. Fla.R.Crim.P. 3.152(a)(1), (2).

Granting or denying a motion for severance is normally a discretionary matter for the trial court. The test on appeal is whether the trial court abused its discretion. Crum v. State, 398 So.2d 810 (Fla.1981); Menendez v. State, 368 So.2d 1278 (Fla.1979). The objective of fairly determining a defendant’s innocence or guilt should have priority over other relevant considerations such as expense, efficiency and convenience. Crum, supra.

The offenses herein were properly charged in a single indictment because they were connected in an episodic sense; that is, they were part of the same criminal course of conduct and occurred within 10 seconds of each other. See Paul v. State, 385 So.2d 1371 (Fla.1980), partially adopting Paul v. State, 365 So.2d 1063, 1065 (Fla. 1st DCA 1979) (Smith, J., dissenting).

Appellant cites Kilgore v. State, 271 So.2d 148 (Fla.2d DCA 1972), for the proposition that where there might conceivably be cogent and compelling reasons inveighing against consolidation, a court should be chary in ordering a defendant to stand trial upon two joint felonies before the same jury. In Kilgore, the defendant was charged with second degree murder and with carrying a concealed firearm. He claimed self defense in the murder charge. The court stated that by consolidating these charges, the defendant was caught in an inescapable vise, for by taking the stand to lay the factual predicate for self defense, he was forced to virtually admit he was carrying a concealed weapon.

The same court distinguished Kilgore in a case where no such prejudice was shown. Rodgers v. State, 325 So.2d 48 (Fla.2d DCA 1975). Therein, the defendant was charged with nine different crimes in four separate informations. Notwithstanding that the offenses were committed against different victims, these offenses were properly joined in a single information because they occurred within a half hour period and were part of the same continuing criminal escapade.

Likewise, denial of a motion to sever a charge of first degree murder with a firearm from a charge of possession of a firearm by a convicted felon was proper where the evidence of possession was intertwined with and a part of the evidence of the act of shooting. Dedmon v. State, 400 So.2d 1042 (Fla. 1st DCA 1981).

The appellant herein is not caught in an inescapable vise. His defense to the murder charge was alibi, which he attempted to establish by the testimony of other witnesses. Even if the charges had been severed, Ms. Parillo would still have been called as part of the evidence placing appellant at the scene at the time in question. Similarly, the alibi evidence presented in the murder ease would have been equally effective in a separate trial for the aggravated assault which occurred within ten seconds of the murder, and so the appellant was no more compelled to take the stand to defend the aggravated assault charge than he was to take the stand to defend the murder charge. Where there is no doubt that even if the cases had been tried separately there would have been no difference in the state’s evidence, the substantial rights of the defendant have not been injuriously affected and the judgment should not be reversed. Zeigler v. State, 402 So.2d 365 (Fla.1981).

Appellant’s contention that his conviction is based solely upon circumstantial evidence and that the evidence was insufficient as a matter of law is without merit.

It is well established that when the government relies on circumstantial evidence, the circumstances, when taken together, must be of a conclusive nature and tendency, leading, on the whole, to a reasonable and moral certainty that the accused and no one else committed the offense charged. It is not sufficient that the facts create a strong probability of and be consistent with, guilt. They must be inconsistent with innocence. Hall v. State, 90 Fla. 719, 107 So. 246 (1925). Circumstantial evidence must eliminate all reasonable hypothesis of innocence. Terzado v. State, 232 So.2d 232 (Fla. 4th DCA 1970).

In the present case, the appellant was identified by Marie Parillo as being the only other person in the parking lot other than the decedent, Gregory Woods. When Parillo was assaulted, she screamed and ran into the motel and according to the witness, Kleffman, it was only five to ten seconds after she screamed that he heard a shot and immediately thereafter observed a car with a body lying next to it. Parillo testified that when she first observed the appellant, he was following behind the decedent and appeared startled when he became aware of her presence and shortly thereafter assaulted her with a gun. Appellant’s alibi defense was a question of fact for the jury to determine. Williams v. State, 206 So.2d 446 (Fla. 4th DCA 1968).

The test to be applied on a motion for judgment of acquittal and review of that denial is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt, but rather whether the jury might reasonably so conclude. Duran v. State, 301 So.2d 486 (Fla.3d DCA 1974). The jury, sub judice, concluded that appellant was the murderer. The evidence presented to the jury was sufficient as a matter of law.

Appellant asserts as his last point on appeal that the trial court erred when it failed to strike the jury’s view or in the alternative, to grant a mistrial, because three or four of the jurors exceeded the scope of the jury view of the scene. There was an agreement between the State and the defense that the jurors would walk around the entire area of the motel but would not go into the motel building. Apparently several of the jurors went inside the motel building. Appellant asserts that he was prejudiced because the jurors exceeded the scope of their view of the scene. The trial court found no prejudice.

The crimes happened in the motel parking lot. The time sequences were based upon the testimony of witnesses not upon measured distances. There was nothing that occurred inside the motel that the jurors could have observed which would have been of any consequence.

Accordingly, the judgments and sentences of the trial court are affirmed.

LETTS, C. J., and HERSEY, J., concur.


text:
    In the Interest of W. L. F., a child.
    No. 81-434.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.
    Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s counsel has filed a brief consistent with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We have carefully reviewed the record and the brief filed on behalf of the appellant and find that there is substantial competent evidence to support the verdict and judgment. See, Tibbs v. State, 397 So.2d 1120 (Fla.1981). Accordingly, the judgment and conviction is affirmed and counsel for the appellant’s motion to withdraw is granted.

LETTS, C. J., and HERSEY and DELL, JJ., concur.


text:
    Howard F. SCOTT, Appellant, v. Linda M. SCOTT, Appellee.
    No. 81-94.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 1982.

      Horton, Perse & Ginsberg and Mallory H. Horton, Tew, Spittler & Berger, Miami, for appellant.
    Gars, Dixon & Shapiro and Sandy Karlan, Miami, for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Linda Scott is in her early thirties, possessed of good health, a bachelor’s degree in psychology, and a master’s degree in business administration, the latter obtained during the course of this ten-year marriage. During the marriage, she was consistently employed in responsible positions and quite clearly has the present prospect of earning no less than $18,000 a year should she choose to work full time. Howard Scott is an attorney, whose after-tax income in each of the several years preceding the divorce was somewhere between $25,000 and $30,-000 annually. The Scotts have a three-and-one-half-year-old daughter who attends a private school during the day and, by the parties’ agreement, spends about three days a week with the father. The only significant asset owned by the parties is the marital residence, which has an equity of about $75,000.

The final judgment of dissolution, inter alia, requires the husband to pay (a) $150 a week in child support, medical and hospitalization insurance for the child, and one-half of medical expenses not covered by insurance, plus one-half of the child’s day care and present private school expenses; (b) rehabilitative alimony of $50 a week for two years; (c) mortgage payments of approximately $600 per month on the marital residence, with the wife to have exclusive possession of the house until she remarries, chooses to move out, or the child reaches her majority; (d) the outstanding debts of the parties in the amount of approximately $36,000; and (e) the wife’s attorneys’ fees and costs to be later determined.

Viewing the foregoing provisions as a whole, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we conclude that they are well beyond the demonstrated needs of the wife and child and the financial ability of the husband. Parham v. Parham, 385 So.2d 107 (Fla.3d DCA 1980). We reverse and remand this cause to the trial court to make a complete redetermination of the interrelated financial provisions of the judgment, with the further direction that the award of exclusive possession of the marital residence to the wife be reconsidered in light of all the circumstances, see Duncan v. Duncan, 379 So.2d 949 (Fla.1980), including the need to liquidate this asset to satisfy outstanding debts, the ongoing cost of the marital residence measured against other shelter, and the potential length of time, here nearly fifteen years, before a sale can occur.

In the event that upon remand the case does not come before the trial judge who entered the judgment below, a new trial should be had on the financial aspects of the judgment. That part of the judgment dissolving the marriage and awarding custody is affirmed.

Affirmed in part; reversed in part and remanded.

      . The judgment expressly states that the mortgage payments are not to be considered as additional alimony to the wife. If that is the case, then these payments must be considered child support. Thus, the husband is effectively ordered to pay child support of more than $300 a week for a three-and-one-half-year-old child.


text:
    W. B. LEONARD, Appellant, v. Sann LEONARD, Appellee.
    Nos. 78-608, 78-954, 78-1424 and 78-2772.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, for appellant.
    James P. O’Flarity of Law Offices of James P. O’Flarity, P. A., Palm Beach, for appellee.
   OPINION ON MOTION FOR STAY OF MANDATE

PER CURIAM.

The appellant has filed a motion to stay the issuance of our mandate pending disposition of his application for certiorari in the Supreme Court. In his motion the appellant contends that he is entitled to deduct the temporary alimony payments he made pending appeal from the amount of lump sum alimony he was originally ordered to pay the appellee now that the lump sum alimony award has been affirmed. He further asserts that our issuance of mandate will preclude him from receiving meaningful review of that issue in the Supreme Court. Although in this appeal the husband challenged the authority of the trial court to award the temporary alimony, and by our affirmance we have obviously rejected such contention, 405 So.2d 732, we are of the view that the issue as to whether the husband would be entitled to credit has not yet been resolved by an appropriate order of the trial court. The motion for stay of mandate is denied.

DOWNEY, ANSTEAD and HURLEY, JJ., concur.


author:
COLE, Associate Justice Ad Hoc.
     DIXON, Chief Justice LEMMON, Justice,

text:
    STATE of Louisiana v. Darold COMEAUX.
    No. 81-K-1214.
    Supreme Court of Louisiana.
    Nov. 16, 1981.

      Joseph A. Koury, Constance A. Koury of Koury & Koury, Lafayette, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Charles Brandt, Asst. Dist. Atty., for plaintiff-respondent.
   COLE, Associate Justice Ad Hoc.

On September 26, 1980, the defendant, Darold Comeaux, was charged by way of two separate affidavits with aggravated assault (Docket No. Sc. 21,685) and simple battery (Docket No. Sc. 21,686) on one Joseph Robin in violation of La.R.S. 14:37 and 14:35. The defendant was arraigned on October 16, 1980, and when the two docket numbers were announced by the prosecutor defense counsel stated, “We waive arraignment and enter a plea of not guilty.” The court then inquired whether the defense had any motions and the reply was, “I doubt that I’ll have any motions, judge.” A trial date was then set by the court.

On November 28, 1980, the state, over defense objection, first proceeded with trial of the aggravated assault charge alone. The objection was that this procedure denied him his right to trial by jury. Although defendant again had the opportunity to do so, he made no motions. After hearing the evidence, the trial court rendered a guilty verdict as to aggravated assault. Defendant then re-urged his objection to trying these offenses separately, but agreed to stipulate with the state that the same evidence would be presented on the simple battery charge. A guilty verdict was thereupon rendered on this charge. The trial court has stayed all proceedings, including sentencing, pending this court’s review.

FACTS

At approximately 9:00 P.M. on September 24, 1980 Darold Comeaux drove up to a service station owned and operated by Joseph Robin and located in Lafayette, Louisiana. Comeaux waited at a self service island for a few minutes, then exited his car and indignantly entered the station. Once inside the station he threw a twenty dollar bill on the counter and demanded someone pump the gas for him. Robin, who was inside the station with two of his employees, Charles Williams and Christopher Gros-sie, responded this was a self service station and that he, Comeaux, did not have to spend his money there. Comeaux then started pushing Robin and calling him derogatory names. Robin told him to leave the premises. Comeaux grabbed the twenty dollar bill, reached for the door but turned around and swung at Robin, missing him. Robin then hit Comeaux in the face a couple of times and Comeaux reached inside his jacket as though trying to pull out a gun. At that, Robin dropped his hands. Comeaux then landed two hard punches to Robin’s face and asked Robin if he had enough. Robin replied, “Yes, please leave my premises.” Comeaux then reached into his coat, pulled out his revolver, pointed it at Robin and said “because I’d kill you, old man.” Grossie stepped in between the two and said he would pump the gas. Comeaux gave Robin some napkins to wipe the blood from his face and Williams gave him a towel. Comeaux put the gun back in his coat, paid for the gas, and left. Robin received stitches for a cut around his eye. One of the attendants obtained the license number from Comeaux’s car and the police thereafter apprehended him.

ASSIGNMENT OF ERRORS NOS. 1, 2 AND 3

Defendant assigns first as error the trial court’s failure to inform him of his right to a trial by jury at the time of arraignment. The argument is predicated on the proposition the defendant is entitled to a jury trial where he is subjected to the possibility of imprisonment for a period greater than six months if convicted of two offenses arising out of the same transaction or course of conduct yet charged by way of separate affidavits. Defendant emphasizes both the aggravated assault charge and the simple battery charge arise from the same incident, both charges were tried consecutively before the same judge, and the same prosecutor merely resubmitted the evidence addressed at the first trial for the trial on the second offense. Defendant also contends the charges were initially joined at arraignment. However, this is not so. Each charge was given its own case number from the outset.

In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the United States Supreme Court held the Sixth Amendment, as applied to the states through the Fourteenth, requires that defendants accused of “serious crimes” be afforded the right to trial by jury. Subsequently, the court defined “serious crimes” as those in which the possible penalty exceeds six months’ imprisonment. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). These principles are reflected in Article I, § 17 of the 1974 Louisiana Constitution, which provides in pertinent part:

“ * * * A case in which the punishment may be confinement at hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict.”

La.C.Cr.P. Art. 779 was enacted pursuant to this constitutional provision and subsequently amended to require a unanimous verdict as follows:

“A. A defendant charged with a misdemeanor in which the punishment may be a fine in excess of five hundred dollars or imprisonment for more than six months shall be tried by a jury of six jurors, all of whom must concur to render a verdict. “B. The defendant charged with any other misdemeanor shall be tried by the court without a jury.”

In City of Monroe v. Wilhite, 255 La. 838, 233 So.2d 535 (1970), cert. denied, 400 U.S. 910, 91 S.Ct. 136, 27 L.Ed.2d 150 (1970), this court stated the right to a jury trial is tested by the punishment authorized for each particular offense. It was held the two offenses which were consolidated for trial pursuant to La.C.Cr.P. Art. 706 did not require a jury trial under La.C.Cr.P. Art. 779 because neither of the two carried a greater punishment than a fine of $500.00 or six months imprisonment. See also, State v. Robertson, 310 So.2d 619 (La.1975).

In State v. McCarroll, 337 So.2d 475 (La.1976), this court overruled the holding in City of Monroe v. Wilhite, supra, in light of Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974) and Art. I, § 17, La.Const. (1974). In Codispoti the defendants had been tried before a judge on several charges of contempt which had arisen from their criminal trial. The con-tempts against each defendant “was tried seriatim in a single proceeding, and the trial judge not only imposed a separate sentence for each contempt but also determined that the individual sentences were to run consecutively rather than concurrently, a ruling which necessarily extended the prison term to be served beyond that allowable for a petty criminal offense.” 418 U.S. at 516, 94 S.Ct. at 2693. The court then noted “In terms of the sentence imposed . .. each contempt was tried for what was the equivalent to a serious offense and was entitled to a jury trial.” Id. The United States Supreme Court then rejected the reasoning which supported this court’s decision in City of Monroe v. Wilhite, supra:

“We find unavailing respondent’s contrary argument that petitioners’ con-tempts were separate offenses and that, because no more than a six months’ sentence was imposed for any single offense, each contempt was necessarily a petty offense triable without a jury. Notwithstanding respondent’s characterization of the proceeding, the salient fact remains that the contempts arose from a single trial, were charged by a single judge and were tried in a single proceeding. The individual sentences imposed were then aggregated, one sentence taking account of the others and not beginning until the immediately preceding sentence had- expired.” Id.

Since the defendants in McCarroll were convicted of multiple counts of aggravated assault and simple battery and most of their sentences were directed to run consecutively, this court reasoned that Codispoti required a jury trial and the defendants did not intelligently waive the same. This court then went on to also base its decision on the 1974 Louisiana Constitution, as follows:

“A jury trial was also required in this case by the wording of our constitutional provision, supra, which hinges the right not upon the penalty carried by the particular charge for which an accused is tried, but upon the punishment which may be imposed in each case. La.Const. Art. I, § 17 (1974). Therefore, where two or more charges are joined for trial the right to a jury must be determined by the total punishment which may be imposed in that case.”

Two distinctions between the present case and McCarroll are noteworthy. First, in McCarroll and in Codispoti consecutive sentences aggregating more than six months were actually imposed. Secondly, McCarroll involved multiple counts in a single bill of information whereas the present case involves two separate affidavits and two separate trials.

The first distinction, between potential sentences and those actually imposed, does not bar review of the more fundamental issue presented. In State v. Nettleton, 367 So.2d 755 (La.1979), this court held the trial court erred in denying defendant a jury trial on four charges which apparently were to be consolidated for trial, since the aggregate fines which could be imposed on conviction of those four charges exceeded $500.00. In such a circumstance, we concluded La.C.Cr.P. Art. 779 required a jury trial. In State v. Grimble, 397 So.2d 1254 (La.1981), this court further held the trial court may not curtail the accused’s jury trial right in advance by agreeing to limit the sentence in the event of conviction. Also, in Duncan v. Louisiana, supra, the United States Supreme Court did not concern itself with the actual sentence, but only with whether the possible jail sentence exceeded six months. We now expressly hold, assuming other criteria are satisfied, the possibility of being subjected to imprisonment for a period greater than six months overrides consideration of the actual sentence imposed, or an agreed limitation upon the possible sentence, when determining whether the right to a jury trial exists.

The second distinction between McCarroll and the present case, i.e., multiple counts in a single bill of information as compared to separate affidavits for separate charges, raises the primary question of whether the defendant under the facts of this case was, at time of arraignment, entitled to a jury trial. The salient facts of this case are: defendant’s conduct resulted in multiple charges; a separate affidavit was filed and maintained for each charge; and, a separate trial was scheduled for each charge (there was no consolidation at arraignment).

Article I, § 17 of the 1974 Louisiana Constitution in pertinent part provides: “A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict.” (Emphasis added.) In determining whether a right to a jury trial attaches pursuant to this provision, this court has focused on the maximum penalty which may be imposed in each case. State v. Grimble, supra; State v. Jones, 396 So.2d 1272 (La.1981); State v. Nettleton, supra; State v. McCarroll, supra. The “maximum penalty” has been computed by aggregating the penalties which may be imposed upon conviction of each count of a single indictment or bill of information brought before the court in a single trial or proceeding. State v. Grimble, supra; State v. Jones, supra; State v. McCarroll, supra.

A “case” is formally delineated by the bill of information, indictment or affidavit. The case docket number is derived from the affidavit, bill of information or indictment. Cases may be subsequently consolidated pursuant to motion and offenses in an indictment or bill of information may be subsequently severed for separate trial if either party is prejudiced. See La.C.Cr.P. Art. 706 and 495.1; see also, Fed.R.Cr.P. 13. Unless the court orders such consolidation or severance the “case” remains as originally delineated.

The defendant herein was charged by way of two separate affidavits. Two case docket numbers were assigned to the offenses of aggravated assault and simple battery. At arraignment, the two docket numbers were called out by the prosecution as the matters then to be taken up by the court. Even though both offenses arose from the same incident, there are separate and distinct elements to each offense and each offense was tried separately. It is clear these are two separate cases. The fact defendant was notified by way of a single summons and arraigned on both charges at the same time merely indicates judicial efficiency and does not detract from the formal delineation of the two cases. These offenses continued to be embodied in two separate cases even after defendant’s objection and the penalties are not to be aggregated to determine whether a right to a jury trial attaches pursuant to La.Const., Art. I, § 17. There being no right to trial by jury at the time of arraignment, there can be no error in failing to inform the defendant of such a right.

Assignment of Error No. 1 is without merit.

In Assignment of Error No. 3, the defense argues the trial court erred in allowing the state to sever the offenses and in not ordering consolidation and trial by jury upon defense counsel’s objection. Defendant contends the state deliberately deprived him of his right to a jury trial because the offenses charged herein could have been properly brought in one bill of information. He complains his right to a jury trial should not depend on the prosecutor’s or court’s discretion in deciding how to charge a defendant and whether cases should be consolidated. Defendant works from the assumption the two cases were somehow informally consolidated at arraignment. Therefore he posits an objection was all that was needed when the state indicated it intended to try the aggravated assault charge first.

The transcript of the arraignment proceeding indicates the prosecutor called out the docket numbers of both charges in open court. Since the defendant waived formal arraignment the transcript of this proceeding is not very enlightening as to how these cases were purportedly consolidated. Moreover, the trial court ruled there was no joinder of offenses or consolidation of cases here. The trial court was correct and, therefore, the severance complained of did not occur and could not have occurred.

A review of the colloquy concerning the state’s decision to try these cases separately and defense counsel’s response thereto is enlightening. The state indicated it would try the aggravated assault charge first unless defense counsel wished to try both charges at once. Defense counsel made no immediate response but then later objected the state was deliberately depriving his client of a jury trial.

Defendant now proposes the court should have ordered the cases consolidated even though no such motion was made. However, La.C.Cr.P. Art. 706 predicates the consolidation of cases only on a defense motion. See, La.C.Cr.P. Art. 706, Official Revision Comment (b). The trial court is not empowered to order consolidation on its own motion. Moreover, the trial court would have to take such actions based on its own intuition.

Defense counsel contends defendant is completely at the mercy of the prosecutor and the court because of the state’s power to charge by way of separate affidavits and the court’s discretion to deny a motion for consolidation. He asserts the prosecutor and court could forever avoid a trial by jury simply by filing a separate affidavit for each charge. The flaw in this argument is that it is premised on the assumption the prosecutor and court have unbridled power to charge by way of separate offenses or deny motions to consolidate. To the contrary, both the state and the trial court are constrained by the United States Constitution, the Louisiana Constitution of 1974 and the Louisiana Code of Criminal Procedure. This court reviews the wielding of power and safeguards against its abuse. Thus in State v. Jones, supra, this court reversed a conviction where the trial court granted the state’s motion to sever offenses solely for the purpose of depriving defendant of a jury trial.

In this case, if the defendant had moved to consolidate the offenses then the trial court would be constrained to order consolidation unless the state could show a legitimate prosecutorial end in opposing consolidation. This court held in Jones that depriving a defendant of a jury trial is not a legitimate prosecutorial end. However, in the current posture of this case, we are left to speculate as to why the state proceeded by way of two separate affidavits. The motion for consolidation needed to be made at the trial court level. Only then could the possible issues involved be properly put in perspective. Defense counsel’s mere objection does not suffice.

We find no merit in Assignment of Error No. 3.

In Assignment of Error No. 2 defense argues the trial court erred in holding a motion for consolidation was necessary to preserve the defendant’s right to trial by jury. Defendant contends a formal motion is not necessary to accomplish consolidation, that the trial court informally consolidated these cases and that he did not waive the fundamental right to a jury trial by failing to use “magic words” to preserve it.

Defense counsel makes a convoluted argument apparently predicated on the assumption the cases herein were consolidated. He directs attention to the trial court’s “Ruling on Motion in Arrest of Judgment,” wherein the trial court supposedly held a motion for consolidation was necessary to preserve the defendant’s right to trial by jury. There is no such holding in the trial court’s ruling. Rather, the court merely questioned whether a motion to consolidate could have constituted a waiver of the right to trial by jury. There is no such holding because defense counsel made no such motion. If he would have motioned to consolidate these two cases pursuant to La.C.Cr.P. Art. 706, then the trial court could have ruled on this unanswered question. See, State v. Nettleton, supra, Marcus’ dissent; State v. Bufalo, 346 So.2d 1107 (La.1977); Joseph, Work of Appellate Courts 1976-77, 38 La.L.Rev. 541 (1978). Since no such ruling was made by the trial court, the issue is not properly before this court. However, it is noted that “preserving the right to a jury trial” assumes the right has already attached. The question, more properly, is whether the right to a jury trial would attach if cases were consolidated where such a right might not have previously existed.

We find no merit in Assignment of Error No. 2.

ASSIGNMENT OF ERROR NO. 4

It is argued the trial court erred in denying defendant’s motion in arrest of judgment. Defendant contends the motion in arrest of judgment should have been granted on two grounds. First, he contends the affidavit charging aggravated assault is fatally defective because of its vagueness and failure to name the victim. Second, the defendant re-urges his arguments, supra, on his right to a jury trial in support of this motion.

The affidavit is not as vague as defendant maintains, and it does in fact name the victim. It states in pertinent part,

. . that on or about the 24th day of September, A.D., 1980 and within the Territorial Jurisdiction of said Court in Lafayette Parish, Louisiana, one Darrell Comeaux did commit an aggravated assault with a dangerous weapon, to-wit: a blue steel revolver, on one Joseph Robin, at 2727 N.W. Evangeline Thurway, (sic) Lafayette, Louisiana, in violation of the provisions of R.S. 14:37.”

The language utilized varies slightly from the possible forms of charging offenses which are enumerated in La.C.Cr.P. Art. 465, but it does convey to the defendant the nature and elements of the crime charged.

The Louisiana Constitution of 1974 requires in all prosecutions the accused be informed of the nature and cause of the accusation against him. La.Const. Art. I, § 13. Under this general mandate this court has determined that an affidavit, bill of information or indictment must be clearly and concisely stated. It must contain all the elements of the crime intended to be charged in sufficient particularity to enable the defendant to prepare for trial, to allow the court to determine the propriety of the evidence which is submitted upon the trial, to impose the correct punishment on a verdict of guilty, and finally to afford the defendant protection from subsequent prosecutions for the same offense. State v. Dozier, 258 La. 323, 246 So.2d 187 (1971). In addition, La.C.Cr.P. Art. 473 requires the identification of the victim when the name of the person injured is substantial and not merely descriptive. The affidavit in the present case meets the requirements set out in State v. Dozier, supra, and La.C.Cr.P. Art. 473.

A proper reading of the affidavit reveals Darold Comeaux is charged with committing an aggravated assault, the dangerous weapon he allegedly used is a blue steel revolver, and the aggravated assault was committed on Joseph Robin. Defense counsel’s contrary reading — that neither the victim nor the dangerous weapon appears on the affidavit — strains the imagination. This alleged defect was raised for the first time on appeal. The defendant has not claimed any surprise or shown any prejudice due to this alleged defect. A technical insufficiency in an indictment may not be raised for the first time after conviction where the indictment fairly informed the accused of the charge against him and the defect does not prejudice him. State v. Russell, 397 So.2d 1319 (La.1981); State v. Dowling, 387 So.2d 1165 (La.1980); State v. Turner, 337 So.2d 1090 (La.1976); State v. Anderson, 332 So.2d 452 (La.1976).

Defendant’s claim that the motion in arrest of judgment should have been granted due to an alleged violation of his right to a jury trial was extensively discussed above.

We find no merit in Assignment of Error No. 4.

ASSIGNMENT OF ERROR NO. 5

Defense counsel argues the trial court did not have jurisdiction over the matter. Defendant contends since he was entitled to a jury trial a City Court did not have jurisdiction to hear the matter. Having concluded defendant, under the facts of this case, was not entitled to a jury trial, it follows the City Court did have jurisdiction.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 6

Defense counsel argues the defendant was tried twice for the same offense and therefore raises the claim of double jeopardy. It is contended the aggravated assault was an attempted battery and defendant should not be convicted of both offenses where they arise from the same incident with the same victim. In support of his contention, defendant recites the state merely resubmitted the evidence from the first trial to substantiate the charges in the second trial.

Defendant’s argument falters when the definition of “assault” is applied to the facts of the present case. La.R.S. 14:36 provides:

“Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.”

Here the aggravated assault occurred when Comeaux brandished the revolver. He thereby intentionally placed Robin in reasonable apprehension of being shot. The simple battery charge arose when Comeaux struck Robin, before he ever drew his revolver. It is clear that although the offenses arose from the same incident they are separate offenses with separate elements to each offense.

In State v. Solomon, 379 So.2d 1078 (La.1980), this court made the following review of general principles applicable to double jeopardy:

“Both the Louisiana and the United States Constitutions provide that no person shall be twice put in jeopardy of life or liberty for the same offense. U.S. Const, amend. 5; La.Const. art. 1, sec. 15 (1974). Article 596 of the Louisiana Code of Criminal Procedure states that double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial, (emphasis added.)
Thus, defendant submits for our review whether the burglary charge and theft conviction are the “same offense” for double jeopardy purposes.
“This Court has adopted the ‘same evidence’ test to determine the identity of offenses. This test holds that two offenses are the same for double jeopardy purposes if the same evidence is required for the conviction of each offense. If one offense requires proof of additional facts which the other does not, then the accused may be tried and convicted on both offenses unless the gravamen of the second offense is essentially included within the offense for which first tried, in which case the second prosecution is barred because of former jeopardy. State v. Nichols, 337 So.2d 1074 (La.1976); State v. Didier, 262 La. 364, 263 So.2d 322 (1972).”

Applying this analysis to the facts of the present case it is apparent there are two different offenses for double jeopardy purposes. The aggravated assault charge requires proof of the gun being brandished whereas the simple battery charge requires proof of Comeaux actually hitting Robin. Although the same body of evidence was presented on each charge, different and distinct parts of the defendant’s course of conduct were required to prove each charge.

We find Assignment of Error No. 6 to be without merit.

For the reasons assigned, the convictions of Darold Comeaux are affirmed and we remand for sentencing.

AFFIRMED AND REMANDED.

DIXON, C. J., dissents with reasons.

LEMMON, J., dissents and assigns reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Here defendant is charged with two offenses out of the same encounter between two men. He was arraigned on both charges at the same time. Twelve days later over defendant’s objection (that he was entitled to a jury) he was tried and convicted of aggravated assault; then, on a stipulation, the judge found him guilty of battery on the evidence previously heard. This was a serious offense, and the judge will probably (he stayed proceedings pending our action) sentence defendant to well over six months in jail. Defendant is exposed to one year in jail. He ought to be able to get the jury trial to which he is entitled.

LEMMON, Justice,

dissenting.

The majority holds that the trial judge did not err in refusing to consolidate the two affidavits for trial because defendant did not make a motion to consolidate. However, defendant did object to separate trials under separate affidavits, and that objection clearly was the equivalent of a request for consolidation. C.Cr.P. Art. 706.

Although the Code provides that the granting of a defense motion to consolidate is discretionary, the denial of the motion solely for the purpose of avoiding a jury trial is an abuse of discretion. See State v. Jones, 396 So.2d 1272 (La.1981). Furthermore, I believe there is no logical distinction, with respect to the Louisiana constitutional right to trial by jury, between tandem trials before the same judge and a single trial of joined misdemeanor counts. See State v. Grimble, 397 So.2d 1254 (La.1981) (Lemmon, J., dissenting). Nevertheless, I still adhere to the view, expressed in dissent in Grimble, that the trial court may deny a jury trial in a case of joined misdemeanors (with individual maximum penalties not exceeding the jury trial limit) by deciding and committing in advance of trial not to impose a penalty exceeding a $500 fine or six months imprisonment. By such a self-imposed limitation the court effectively determines in advance that consecutive sentences will not be imposed in a “case” which involves offenses arising out of “the same act or transaction” or “constituting parts of a common scheme or plan”. C.Cr.P. Arts. 493 and 883. Therefore, the “case” is not one in which defendant is entitled to trial by jury.

Except for Grimble, the trial court in this case could have granted the motion to consolidate and still denied a jury trial by imposing the described limitation on sentence exposure. Because Grimble precluded that procedural alternative, either the state should have dismissed one charge or the trial court should have consolidated the affidavits.

       Judges Grover L. Covington, Luther F. Cole and J. Louis Watkins, Jr. of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc., joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . There is some discrepency as to what was said exactly and how long Comeaux displayed the revolver. Although Robin testified it was only a few seconds, Williams stated it was a minute or two and Grossie stated it was five minutes. Comeaux did not testify.

      . In Nettleton, the state elected to charge the multiple offenses in separate Bills of Information but, unlike the present case, it appears the offenses were deemed consolidated and to be tried in a single proceeding.

      . La.C.Cr.P. Art. 779 entitles a defendant to a jury trial when charged with a misdemeanor in which the punishment may be a fine in excess of $500.00 or imprisonment for more than six months. La.Const. of 1974, § 17 only entitles a defendant to a jury trial in a case where the punishment may be imprisonment for more than six months, without mention of any fine.

      .La.C.Cr.P. Art. 883 authorizes consecutive sentences for two or more offenses based on the same act or transaction. The offenses of aggravated assault and simple battery each carry a maximum sentence of six months imprisonment. La.R.S. 14:35 and 14:37. The defendant in the present case is therefore subject to a possible one year term of imprisonment upon conviction of these two offenses.

      . Under this posture had jurors been utilized, it would have been necessary to impanel two separate juries for two separate trials. Art. I, § 17 requires that “a case” be tried before “a jury.”

      . Defendant points to State v. Robertson, 310 So.2d 619 (La.1975), in support of his contention that cases can be informally consolidated. In both State v. Robertson, supra, and State v. Laurent, 290 So.2d 809 (La.1974), the cases were consolidated without motion or objection from the defendants. However, the holdings in Robertson and Laurent seem to indicate that it is harmless error for the trial court to order consolidation on its own motion where defendant does not object and no prejudice is shown. However, in the present case, the trial court stated that there was no joinder of offenses or consolidation of cases. Moreover, the record is void of any indication that these cases were ever consolidated.