author: PER CURIAM. OTT, Judge,

text:
    Theodore J. DeLISI, Appellant, v. Jim SMITH, Attorney General, Appellee.
    No. 80-1916.
    District Court of Appeal of Florida, Second District.
    July 29, 1981.

      A. J. Barranco, Jr., and Steven Kellough of Law Offices of A. J. Barranco, Jr., P. A., Miami, and Michael H. Bloom, Coconut Grove, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary L. Conover, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is a case of first impression involving the forfeiture aspects of the Florida RICO (Racketeer Influenced and Corrupt Organization) Act.

On June 25, 1980, the state filed an information in Hardee County against appellant and others alleging violations of the RICO Act. Three days later, the attorney general filed a civil action in Hardee County for forfeiture, injunction and other relief against the same persons. The complaint, as it related to appellant, alleged that he had planned and participated in several large airplane importations of cannabis into Florida which constituted violations of the RICO Act. The complaint also included the following allegations:

27. Defendants owned or acquired, and therefore presently own, hold, or claim title to or an interest in, real and personal property, including money, that was used in the course of, or intended for use in the course of the activities described in Paragraphs 16 through 26, above.
28. Defendants have acquired, and presently own, hold, or claim title to or an interest in, real and personal property, including money, that was derived from or realized through the activities described in Paragraphs 16 through 26, above.
29. Defendants have used or invested proceeds derived, directly or indirectly, from the activities described in Paragraphs 16 through 26, above, to acquire title to, or a right, interest, or equity in real property.
30. Defendants have used or invested proceeds derived, directly or indirectly, from the activities described in Paragraphs 16 through 26, above, to establish or operate various enterprises as defined in Section 943.461(3), Fla.Stat. (1979).

The complaint sought, among other things, the forfeiture “of all property and other things of value, real or personal, including money, used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation of the RICO Act.”

On the day he filed the complaint, the attorney general also filed an ex parte application for preliminary relief. Pursuant to the application, the court entered an order requiring all the defendants to submit a list of their property and directing them

to refrain from disposing of, transferring, assigning, relocating, dissipating or otherwise altering the status of any of their properties without prior approval of the Court, except that Defendants are permitted to make normal disbursements from the accounts of their lawful business interests (corporate, partnership, joint venture or sole proprietorship) for the normal daily operation of such business interests, and to make normal disbursements for day to day living expenses.

Appellant filed a motion to quash this temporary injunction. Following a hearing, the court vacated the reporting requirements of its order but declined to disturb the prohibition against the transfer of assets. Pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B), appellant now seeks review of this denial.

Those portions of the RICO statute pertinent to our consideration are as follows:

(2) All property, real or personal, including money, used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation of a provision of ss. 943.46-943.464 is subject to civil forfeiture to the state. The state shall dispose of all forfeited property as soon as commercially feasible. If property is not exercisable or transferable for value by the state, it shall expire. All forfeitures or dispositions under this section shall be made with due provision for the rights of innocent persons. The proceeds realized from such forfeiture and disposition shall be promptly deposited in the treasury of the state and immediately credited to the General Revenue Fund of the state.
(5) The Department of Legal Affairs, any State Attorney, or any state agency having jurisdiction over conduct in violation of a provision of this act may institute civil proceedings under this section. In any action brought under this section, the circuit court shall proceed as soon as practicable to the hearing and determination. Pending final determination, the circuit court may at any time enter such injunctions, prohibitions, or restraining orders, or take such actions, including the acceptance of satisfactory performance bonds, as the court may deem proper.

Appellant makes a broad-ranging attack upon the proceedings below, but he primarily contends that the state failed to demonstrate an evidentiary basis for the temporary injunction. He points out that although he has been restrained from disposing of any property, the attorney general has not made a showing of which of his property comes within the purview of the forfeiture statute. Since he did not appeal the original temporary injunction but filed a motion to quash instead, we will direct our attention to the propriety of the order entered in response to that motion.

There was no evidence presented by either side at the hearing. After appellant’s attorney made a legal argument directed to deficiencies in the injunction, the following colloquy occurred between him and the court:

THE COURT: Just a second, sir, you’re asking me to determine that Judge Green’s order was improperly entered I assume?
MR. KELLOUGH: Yes, sir.
THE COURT: No, sir, I’m not going to do that. If you’re asking me to sit as an appellate court on Judge Green—
MR. KELLOUGH: I’m asking you to quash it.
THE COURT: No, sir, denied.

Thus, in the present posture of the case, the attorney general continues to have the benefit of a temporary injunction without ever having presented any testimony in support thereof. At the time of the hearing, Florida Rule of Civil Procedure 1.610 pertaining to injunctions stated in pertinent part:

(c) Motion to Dissolve. Any party against whom an injunction has been granted may move to dissolve it at any time.
(d) Evidence. Either party may present evidence at any hearing on an application for or motion to dissolve an injunction. On hearing the court may grant, dissolve or continue the injunction or may require bond.

The rule did not indicate who has the burden of presenting evidence. However, it is well settled that a temporary injunction is an extraordinary remedy which a court should grant only after the movant has proven sufficient facts entitling it to relief. Dania Jai Alai International, Inc. v. Murua, 375 So.2d 57 (Fla.4th DCA 1979); Jennings v. Perrine Fish Market, Inc., 360 So.2d 434 (Fla.3d DCA 1978); Bemas Corporation v. City of Jacksonville, 298 So.2d 467 (Fla.1st DCA 1974). Therefore, it follows that at the first hearing directed toward the propriety of such an ex parte order, the burden must fall upon the party seeking to support the order.

Accordingly, we reverse the order denying the motion to quash. However, because of the novelty of the RICO Act and because of the irreparable harm which might result if we were to vacate the temporary injunction at this time, we have chosen to leave it intact and remand the case for an evidentiary hearing on the motion to dissolve. At this hearing, the attorney general will have the burden of making a prima facie case that he will be successful in his suit. He will also have to make some showing that the property which he wishes to prevent appellant from disposing of was “used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation of” the RICO Act. Without proof, the mere assertion that all of appellant’s property is subject to forfeiture will not do.

Reversed and Remanded.

BOARDMAN, A. C. J., and GRIMES, J., concur.

OTT, J., dissents with opinion.

OTT, Judge,

dissenting.

I dissent.

While I concur with the rationale and analysis of the law in the majority opinion, I disagree with the result. I would dismiss the appeal or at least refuse to hear or act thereon while appellant remains a fugitive from justice.

This case, together with a codefendant’s appeal from the same order, was referred to the trial court for a hearing and findings as to whether or not appellant and his code-fendant had violated the temporary injunction in question. The commissioner found the codefendant had made transfers of property in violation of the restraining order and we thereupon dismissed his appeal. Keidaish v. Smith, 400 So.2d 90 (Fla. 2d DCA 1981). While the commissioner did not find that appellant had made any property transfers in violation of the restraining order, he did find — and the evidence clearly supported it — that appellant had fled the jurisdiction.

Proceedings for forfeiture under the provisions of the Florida RICO Act are grounded upon criminal activity. The restraining order was duly entered by a court of competent jurisdiction and was personally served on the appellant, together with the petition and supporting documents. Having fled the jurisdiction of the courts of this state he is not subject to enforcement of the court orders and, in my opinion, is therefore not entitled to any consideration of his appeal from the restraining order of the lower court.

I see no real distinction between appellant and any other criminal defendant who flees while appealing the denial of his motion to suppress the evidence or his conviction and sentence after trial.

      . The 1981 amendment to the rule now specifies that the party who obtained the ex parte restraining order must go forward at the hearing if he is to sustain the order.

      . Once the court has entered or sustained a temporary injunction following an adversary hearing, the burden of proof would shift to the movant on any subsequent motion to dissolve.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ahmed M. ELMARIAH, Appellant, v. ASSOCIATES FINANCIAL SERVICES CORPORATION, Appellee.
    No. 81-89.
    District Court of Appeal of Florida, Second District.
    July 29, 1981.
    Peter N. Meros of Meros, Coit, Edman, Meros, Smith & Meros, P.A., St. Petersburg, for appellant.
   PER CURIAM.

This is an appeal from a final judgment entered against the appellant in a suit on a promissory note. In its order mandating the recovery of $21,781.17 in principal, court costs and attorney’s fees, the trial court noted that the appellant and his attorney were not present at the final hearing. Appellant, on receipt of the final judgment, moved for rehearing and argued that neither he nor his attorney received notice of the final hearing. Appellee did not submit any counter-affidavits in rebuttal to the notice issue raised. Noting that the court file contained a notice of the hearing and a certificate of service on appellant’s attorney, the court summarily denied the appellant’s motion for rehearing without taking any evidence as to whether or not appellant or his attorney had actual notice of the final hearing. We reverse.

The question of whether or not notice was received by the appellant or his attorney is of sufficient import to justify an evidentiary hearing. Leonard v. Leonard, 397 So.2d 425 (Fla.2d DCA 1981). Thus, the trial judge abused his discretion in summarily denying the motion for rehearing. We note, however, that a better procedure was available to the appellant for relief from the final judgment order pursuant to Florida Rule of Civil Procedure 1.540.

Accordingly, we REVERSE and REMAND to the lower court for the purpose of holding an evidentiary hearing on the issue of notice.

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


text:
    Jodi Ann JAMELE, Appellant, v. STATE of Florida, Appellee.
    No. 81-141.
    District Court of Appeal of Florida, Second District.
    July 29, 1981.
    Michael B. Steeves, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment but vacate the sentence imposed because a general sentence is impermissible. Worth v. State, 380 So.2d 553 (Fla.2d DCA 1980). On remand it should be noted that the two year probation was a proper sentence for the charge of possession of cocaine but not as to the charges of possession of marijuana and possession of drug paraphernalia as these each carry a maximum sentence of one year. See §§ 893.13(l)(f), 893.13(3)(a)4, and 893.-13(3)(b). We remand and direct the trial court to impose a separate sentence for each offense.

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


text:
    James L. HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 81-561.
    District Court of Appeal of Florida, Second District.
    July 29, 1981.
    Jerry Hill, Public Defender, Bartow and Eula Tuttle Mason, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was found guilty of violating his probation in case no. 73-3638, possession of paraphernalia, case no. 74-2247, resisting arrest without violence, and ease no. 74— 2248, loitering.

At the time the appellant violated his probation in these three cases, the maximum time of probation had expired. Therefore, the lower court was in error in finding him guilty of violating probation in these three cases.

The appellant was also found guilty of violating his probation in three other cases, nos. 73-3639, 74-2246, and 74-1872. The finding of guilty of violating probation and the sentences thereon in these three cases are affirmed, as the maximum time of probation had not expired.

The finding of guilty of violating probation and the sentences thereon in cases nos. 73-3638, 74 — 2247, and 74 — 2248 are reversed.

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


text:
    Vernell KING, Appellant, v. STATE of Florida, Appellee.
    No. AB-260.
    District Court of Appeal of Florida, First District.
    July 29, 1981.
    Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., Tallahassee, for appellee.
   LILES, W00DIE A., Associate Judge (Retired).

Vernell King was charged with the crime of grand theft on July 1, 1980. He remained in jail awaiting trial until July 28, 1980, when he was released on his own recognizance pursuant to Section 903.03(1), Florida Statutes (1979). When King failed to appear for pretrial conference on August 5,1980, the release on his own recognizance was revoked and a capias with a bond was issued. King was apprehended in November, 1980. He was charged with failure to appear before the court, in violation of Section 843.15, Florida Statutes (1979).

A motion was filed on his behalf to dismiss the charge of failure to appear for the reason that since King was released on his own recognizance, he could not be charged with a violation of Section 843.15, since that section dealt only with defendants released on bail as opposed to released on their own recognizance. The trial judge denied the motion to dismiss. Defendant entered a plea of nolo contendere, reserving the right to appeal the denial of the motion to dismiss, and received a sentence of two years imprisonment.

Appellant now urges that we reverse the trial judge, since the harshest penalty he could receive would be a conviction of indirect criminal contempt. He bases that argument on the language contained in Section 843.15(2), which provides:

Nothing in this Section shall interfere with or prevent the exercise by any court of its power to punish for contempt.

We believe the trial court properly denied the motion to dismiss for the reason that the judge was empowered by Section 903.03(2)(a) to release a person charged with a crime on his own recognizance, and the fact that the defendant failed to keep his word that he would appear as ordered does not allow him to also escape a prosecution simply because he did not have either a cash bond or a surety company.

It is true that Chapter 843, Florida Statutes, speaks in terms of forfeiture of security as does Chapter 903. This does not, however, exclude punishment for defendants who are released on their own recognizance when the very term recognizance carries with it a promise as opposed to a surety. To rule otherwise would have a chilling effect upon trial judges releasing those charged with a crime without surety and would render Section 903.03(2)(a) a nullity.

For the foregoing reasons, we AFFIRM.

McCORD and SHIVERS, JJ., concur.


text:
    A-1 BLOCK COMPANY and U. S. Fidelity & Guaranty Company, Appellants, v. FLORIDA ROCK INDUSTRIES, INC. and Underwriters Adjusting Company and Willie Denmark, Appellees.
    No. VV-123.
    District Court of Appeal of Florida, First District.
    July 29, 1981.
    John R. Gierach of Gierach & Ewald, P. A., Orlando, for appellants.
    Ronald S. Webster of Whittaker, Pyle, Stump & Webster, Orlando, for appel-lees/Florida Rock Industries, Inc. and Underwriters Adjusting Co.
    Edward H. Hurt, Orlando, for appel-lee/Willie Denmark.
   PER CURIAM.

Appellants challenge a workers’ compensation order requiring appellants to reimburse Florida Rock Industries, through their adjusting service, Underwriters Adjusting Company, for a portion of the permanent disability payments, costs and attorney’s fees due claimant. On review, we find the order is inadequate to afford this court a basis for intelligent review. We reverse and remand for entry of a more definitive order covering the points that must be established to support an award of permanent partial disability resulting from claimant’s June 5, 1978 accident. Cohen-Ager, Inc., and Midland Insurance Co. v. Pierce, IRC Order 2-3173 (1977).

Claimant suffered an acute myofascial strain to the lower back while employed with A — 1 Block Company on June 5, 1978. He was conservatively treated by Dr. Cox until January 2, 1979. Dr. Cox felt claimant had reached maximum medical improvement, from that injury on July 7, 1978, and although claimant required palliative treatment after that date, Dr. Cox was of the opinion claimant suffered no permanent residual impairment.

On March 6, 1979, while employed with Florida Rock Industries, claimant again injured his low back. Dr. Cox conservatively treated claimant until July 1979. Claimant then came under the care of Dr. Stanford. Dr. Stanford felt claimant reached maximum medical improvement on November 5, 1979, with a five percent (5%) permanent partial impairment.

Claims for compensation were filed for both accidents. Florida Rock Industries filed a notice of controversy between carriers requesting reimbursement from A-l Block for any or all benefits provided claimant by Florida Rock Industries. At the final hearing on January 7, 1980, claimant withdrew his claim against A — 1 Block with regard to the June 5, 1978 accident. Florida Rock Industries advised the deputy commissioner that it was not withdrawing its notice of controversy. The deputy reserved ruling on the notice of controversy and proceeded with the hearing on the remaining claim. Subsequent to that hearing, an order issued finding claimant had sustained a twenty-eight percent (28%) loss of wage earning capacity. The appropriate compensation was awarded along with costs and attorney’s fees. The deputy specifically reserved jurisdiction to determine what portion of that award would be paid by A — 1 Block pursuant to the notice of controversy between carriers.

A hearing on the notice of controversy was held April 10, 1980. The parties stipulated that the depositions given by claimant and the depositions of Dr. Stanford and Dr. Cox, with their attached medical reports, would be entered into evidence. A-l Block objected to the introduction of Dr. Cox’s medical reports as they were not attached to his deposition. The deputy accepted the doctor’s reports to assist him in evaluating the overall issues over that objection. No live testimony was taken at the hearing.

On April 17, 1980, the deputy entered the appealed order, finding A-l Block and its carrier responsible for one-fourth of claimant’s disability, the same being attributable to the June 5, 1978 accident. The deputy also ordered A-l Block and its carrier to pay one-fourth of the attorney’s fees and costs which had been assessed against Florida Rock Industries. There is no indication in the order whether the deputy considered this seven percent (7%) disability of the body as a whole (one-fourth of the twenty-eight percent (28%) disability previously found) to be an anatomical disability rating or a loss of wage earning capacity. There are no findings of fact included in the order to support either conclusion. There is no medical testimony in the record of a permanent anatomical disability resulting from the first accident. While the deputy could, under the law in effect at the time, find physical impairment in the absence of medical testimony to that effect, there must be other competent, substantial evidence to support such a finding. C. A. Carroll Construction Company and Fidelity & Casualty Co. of New York v. Long, 397 So.2d 751 (Fla. 1st DCA 1981). Here, claimant had returned to work after the first injury and therefore had reestablished some wage earning capacity. There are no findings of fact in the order supporting a conclusion that claimant’s wage earning capacity had been diminished. Without a recital of whether the disability results from physical impairment or is due to a loss of wage earning capacity, and the findings of ultimate fact supporting the conclusion, there is nothing for the appellate court to review. Florida Manor and Gallagher Bassett Insurance Service v. Gunther, IRC Order 2-2883 (1975).

We also note the deputy commissioner did not determine whether the March 6, 1979 accident was a new injury, an aggravation of the 1978 injury, and if so the extent of the aggravation, or merely a recurrence or natural progression of the 1978 injury. Without such determinations, the question of apportionment cannot be settled. Iowa National Mutual Insurance Co. v. Webb, 174 So.2d 21 (Fla.1965). When a claimant has suffered two compensable accidents, the carrier on the first accident is responsible only for the permanent physical impairment independently caused by the first injury. Marden Manufacturing Co. and Fireman's Fund Insurance Co. v. Florida Farm Bureau Casualty Insurance Co. and Brown, IRC Order 2-3894 (1979).

With regard to appellants’ assertion that it was error for the deputy commissioner to admit into evidence the medical reports of Dr. Cox, we find the evidence contained therein is cumulative in nature and merely elaborates on the opinions Dr. Cox gave in his deposition. Assuming it was error to admit the records, reversal is not required.

Accordingly, the cause is reversed and remanded to the deputy commissioner for entry of an order more clearly defining the basis of the finding that Florida Rock Industries is entitled to reimbursement from A — 1 Block for one — fourth of the disability payments, costs and attorney’s fees due claimant.

REVERSED AND REMANDED.

McCORD and LARRY G. SMITH, JJ., and LILES, WOODIE, A., Associate Judge (Retired), concur.


author: McCORD, Judge.

text:
    Horace PITTMAN, Appellant, v. STATE of Florida, Appellee.
    No. WW-87.
    District Court of Appeal of Florida, First District.
    July 29, 1981.
    Joseph L. Hammons, Pensacola, for appellant.
    Jim Smith, Atty. Gen., Miguel Olivella, Jr., Asst. Atty. Gen., for appellee.
   McCORD, Judge.

This appeal is from an order denying appellant’s motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. Alternatively, appellant requests that we treat this appeal as a petition for writ of habeas corpus and grant full appellate review of his conviction pursuant to Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967), cert. denied, 391 U.S. 968, 88 S.Ct. 2040, 20 L.Ed.2d 882. We affirm and deny habeas corpus relief.

Appellant was convicted in 1977 of extortion. After final judgment, appellant retained a new attorney, and that attorney filed a motion for new trial and motion in arrest of judgment. Ultimately, appellant filed a notice of appeal after the trial court denied his motions. Because it was determined that the 30-day appeal period had lapsed, this Court dismissed Pittman’s appeal, stating in part:

The state’s motion to dismiss Pittman’s appeal as untimely raises the question of whether the beginning of the 30-day appeal period in this criminal case was postponed by the filing of a motion in arrest of judgment within 15 days after the adjudication of guilt but 65 days after rendition of the jury verdict. The trial court entertained the motion in arrest of judgment but denied it on the merits; hence Pittman’s appeal. We hold that Fla.R.Crim.P. 3.590 requires the filing of any motion in arrest of judgment within four days after the verdict in a jury trial, or by leave of the court within 15 days after the verdict; that the trial court is without power to entertain a Rule 3.590 motion in arrest of judgment thereafter; that absent a timely motion in this case, the appeal time began upon rendition of the judgment and sentence; and that this appeal must be dismissed.

Pittman v. State, 370 So.2d 1207 at 1207 (Fla. 1st DCA 1979), cert. dismissed, 375 So.2d 911 (Fla.1979).

Appellant has now retained another attorney and filed this motion for post-conviction relief, contending that he had been prosecuted on an improperly amended information; that the prosecutor had made improper comments at trial, thereby denying him a fair trial; that his due process rights have been impaired due to a conflict of interest involving the state attorney; and that the trial court erred in denying a post-trial motion; that the statute, which he was accused of violating, was unconstitutional. The trial court, in denying the motion for post-conviction relief, found that each of the alleged errors was or should have been apparent to appellant at trial. Since these errors could have been raised on direct appeal, relief pursuant to Rule 3.850, Florida Rules, of Criminal Procedure, is not available. Merrill v. State, 364 So.2d 42 (Fla. 1st DCA 1978), cert. denied, 372 So.2d 470 (Fla.1979); Dismuke v. State, 388 So.2d 1324 (Fla. 5th DCA 1980). Upon our review of the record, we find no error in the trial court’s denial of the motion.

In support of appellant’s alternative prayer that we treat this appeal as a petition for writ of habeas corpus, pursuant to Hollingshead v. Wainwright, and grant full appellate review, he contends that his appeal was frustrated by state action. Pittman argues that the trial judge should have immediately dismissed his motions for new trial and arrest of judgment as untimely filed. Instead, the trial judge told his attorney to submit briefs and notify the state of the motions. As appellant points out, this was a statement made by the judge in the hallway of the courthouse when his attorney saw the judge, introduced himself, advised the judge that he would be representing appellant, and told the judge that he had filed the motions.

The standards for granting a delayed full appellate review by writ of habe-as corpus, as noted in Hollingshead, supra, are set out in Baggett v. Wainwright, 229 So.2d 239 at 241 (Fla.1969), writ discharged, 235 So.2d 486 (Fla.1970). Baggett requires that the criminal defendant must in some way make known his desire to appeal. This generates a duty on the part of the state to accord the defendant the necessary incidents of an appeal. Once the duty is generated, the direct appeal must be frustrated by “state action,” which has been defined as the failure on the part of “a responsible state official in the state’s system of justice to take proper steps toward affording the necessary incidents of an appeal.” Baggett, supra, at 242.

Appellant’s failure to file a notice of appeal within the jurisdictional time limit is not chargeable to the trial judge. Appellant was free to file a notice of appeal during that time limit. He was not required to await a ruling of the trial judge on his untimely filed motions. The actions taken by appellant immediately following the entry of his judgment and sentencing do not indicate a desire to appeal his conviction. There was no state action on the part of the trial judge that frustrated a direct appeal by appellant. The test for state action, as announced in Baggett v. Wainwright, was not met.

The trial court’s order denying post-conviction relief is affirmed, and the petition for writ of habeas corpus seeking a delayed full appellate review is denied.

ROBERT P. SMITH, C. J., and ERVIN, J., concur.


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

text:
    CONTAINER CORPORATION OF AMERICA, a corporation, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, Appellee.
    No. XX-231.
    District Court of Appeal of Florida, First District.
    July 29, 1981.
    Mattox S. Hair, Tracey I. Arpen, Jr. and Bridget P. Beisner of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellant.
    Philip A. Webb, III, Douglas E. Myers, Jr., of Webb, Swain & Watson, Jacksonville, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Container Corporation appeals from a partial summary judgment requiring Container to indemnify Seaboard for any judgment plaintiff Bryan, Seaboard’s injured switchman, may recover against Seaboard as a result of falling over a scrap rail that was left sticking out of the ground near the side track by which Seaboard trains served Container. We affirm.

Without regard for any nondelegable duties owed by Seaboard to its employees, the obligations between Seaboard and Container are fixed by their contract, which provided that the side trackage was Container’s and that Container “will bear the cost and hereby assumes the duty of maintaining said trackage in safe condition . . . . ” Container further assumed “the duty of keeping the right of way adjacent . . . clean and free of all ... objects which may be hazardous or dangerous to those engaged in the operation of” Seaboard’s trains, and expressly agreed to indemnify Seaboard for any judgment arising out of an injury “caused by or contributed to by the failure” of Container to maintain the track and right of way.

Container, referring to Seaboard’s alleged negligence in failing to provide switchman Bryan a safe place to work, urges that any concurring negligence of both contracting parties in maintaining the premises should result in an equal sharing of the loss, by virtue of the further agreement that:

[Container] will indemnify and hold [Seaboard] harmless for loss, damage or injury from any act or omission of [Container], his employees or agents, to the person or property of the parties hereto and their employees, and to the person or property of any other person or corporation, while on or about the track, and if any claim or liability other than from fire shall arise from the joint or concurring negligence of both parties hereto, it shall be borne by them equally, (emphasis supplied.)

Giving all terms of the contract some reasonable meaning, we think it clear, as did the circuit judge, that as between the parties Container obligated itself to maintain the trackage and adjacent right of way, and to indemnify Seaboard for any failure resulting in third party injury, even if that third party should also have an independent right of action against Seaboard. Compare, City of Jacksonville v. Franco, 361 So.2d 209 (Fla. 1st DCA 1978), cert. dism., 367 So.2d 1122 (Fla.1978). Under the clause relied on by Container, concurring negligence by Seaboard in operating its train or in other respects independent of trackage maintenance would result in joint liability “borne by them equally.” No such negligence by Seaboard is alleged or intimated in this case.

We likewise reject Container’s contention that Seaboard’s alleged long-standing knowledge of and acquiescence in the dangerous condition changes Container’s liability. Florida Power Corp. v. Taylor, 332 So.2d 687 (Fla. 2d DCA 1976), cited to us by appellant for the proposition that such acquiescence bars indemnity, is not applicable. Taylor involved application of common-law notions of indemnity, not indemnification by contractual agreement. Taylor's statement, 332 So.2d at 692, that

indemnity will not be permitted, even when based on an agreement, to one who has acquiesced in a dangerous condition through long continued awareness,

was a denial that Canal Authority owed Florida Power common law indemnity, arising from Canal Authority’s failure to perform some (unspecified) contractual duty, if Florida Power so long acquiesced in its nonperformance as to be considered actively negligent by common law principles; we trust that statement is not to be read as qualifying an unqualified indemnity agreement.

AFFIRMED.

JOANOS and THOMPSON, JJ., concur.


text:
    ZAYRE CORPORATION and American Mutual Insurance Companies, Appellants, v. Betty E. MOLL and the Division of Workers' Compensation of the Department of Labor and Employment Security, Appellees.
    No. XX-408.
    District Court of Appeal of Florida, First District.
    July 29, 1981.
    Donald F. Harrington, Miami, for appellants.
    Michael D’Agostino, Coconut Grove, for appellees.
   PER CURIAM.

The employer/carrier presents the following points on appeal: (1) that the deputy commissioner erred in his determination of the proper periods for awarding temporary partial disability, temporary total disability, and permanent partial disability; (2) that the deputy erred in finding the claimant 74% PPD; and (3) that the deputy erred in his calculation of attorney’s fees.

In view of the discrepancies between the evidence presented at the hearing and the deputy’s order, to which the claimant readily admits, we reverse and remand this cause for a redetermination of the proper periods for awarding TTD and TPD. Further, since the attorney’s fee was based solely on the statutory formula for benefits secured, it, too, should be redetermined on the basis of the reduced award. Otherwise, the order appealed from is affirmed.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED for proceedings consistent with this opinion.

McCORD and SHIVERS, JJ., and LILES, WOODIE A. (Ret.), Associate Judge, concur.


text:
    James Harry TOBIN, Appellant, v. STATE of Florida, Appellee.
    No. AB-422.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1981.
    James Harry Tobin, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of the lower court’s denial of his Fla.R.Crim.P. 3.850 motion for post-conviction relief. We agree with the lower court’s conclusion that appellant is not entitled to Rule 3.850 relief.

Appellant was convicted of several offenses contained in a multiple-count information, and sentenced to a total of 10 years imprisonment for some offenses, followed by 30 years probation for various other offenses. In Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla. 1981) (revised opinion), the Florida Supreme Court ruled that the maximum period of incarceration which may be imposed as a condition of probation is up to, but not including, one year. The Villery court further indicated that this rule also applies to incarceration followed by a specified period of probation. However, we conclude that Villery applies only where incarceration and probation are imposed for the same offense, and does not prohibit incarceration for a year (or more) followed by a period of probation imposed for a separate offense, as in the present case.

The order appealed is affirmed.

SHAW, WENTWORTH and THOMPSON, JJ., concur.

      . Note the Villery court’s suggestion that the legislature “never contemplated the concurrent operation of parole and probation for the same offense.... [e. s.]


text:
    William R. MULDROW, Appellant, v. G. Daviss STARR and Barbara G. Starr, his wife, et al., Appellees.
    No. AD-15.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1981.
    William R. Muldrow, pro se.
    John C. Cooper, of Douglass, Davey & Cooper, for appellees.
   PER CURIAM.

Muldrow appeals an order dismissing his complaint with prejudice as to all defendants except G. Daviss Starr and his wife Bargara G., and as to them, dismissing the complaint without prejudice and with leave to amend. After due consideration of the record on appeal and the briefs of the parties, we affirm the order of the trial court in all respects except as to the dismissal with prejudice of Count X and defendant Samuel Givens. The allegations against the other defendants dismissed with prejudice are frivolous and vexatious, almost totally defying reasonable comprehension, and involve statements made in court proceedings and matters resolved in prior litigation. However, as to Count X, involving defendant Samuel Givens, appellant’s allegations may involve matters that have not been litigated before and may arguably have merit if properly pleaded.

Accordingly, the order is affirmed in part and reversed in part and the trial court is directed to enter an amended order dismissing Count X without prejudice and with leave to amend.

MILLS, ERVIN and LARRY G. SMITH, JJ., concur.


text:
    Anthony SAWYER, Appellant, v. STATE of Florida, Appellee.
    No. XX-303.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1981.
    Rehearing Denied Aug. 21, 1981.

      Michael Allen, Public Defender and Melanie Hines Alford, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Sawyer, convicted of first degree murder on a nolo contendere plea appeals his sentence urging that the trial judge erred in retaining jurisdiction without specifying his reason for doing so as required by Section 947.16{3)(a) Florida Statutes (1979). This issue was not presented to the trial court and in our opinion constitutes a procedural error, not a fundamental one. See Dunman v. State, 400 So.2d 838 (Fla. 5th DCA 1981); Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980). Although it might be more expeditious in the short run for us to decide the issue, see Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981), we decline to do so because this is precisely the type of issue which can and should be resolved by trial judgeswith minimal legal andjudicial labor.

Noble v. State, 353 So.2d 819 (Fla.1977) does not compel a contrary result. Noble does not require that an appellate court correct all sentencing errors on direct appeal whether preserved or not, only those which are fundamental.

Accordingly, the appeal is dismissed without prejudice for Sawyer to raise this issue by motion pursuant to Florida Rule of Criminal Procedure 3.850.

MILLS, ERVIN and LARRY G. SMITH, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Joseph S. TUDOR, Appellee.
    No. 81-330.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Reversed on the authority of Ensor v. State, 403 So.2d 349 (Fla.1981) and remanded for further proceedings.


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

text:
    Bobby L. SHRUM, Appellant, v. STATE of Florida, Appellee.
    No. 80-303.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 1981.
    Robert Augustus Harper, Jr., Gainesville and James A. Shook, Ocala, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.,

This is an appeal from a judgment of second degree murder and a sentence of life imprisonment. Appellant contends that the trial court erred in failing to give an instruction on third degree murder. He also alleges that the trial court erred in failing to conduct a Richardson inquiry concerning the state’s violation of Florida Rule of Criminal Procedure 3.220. We find no error and AFFIRM.

Appellant was charged with first degree murder and thus was entitled to have the jury advised on all degrees of unlawful homicide. Brown v. State, 124 So.2d 481 (Fla.1960). Had appellant objected, the trial court’s failure to instruct on third degree murder would have been reversible error. See Hunter v. State, 389 So.2d 661 (Fla. 4th DCA 1980).

Here, however, appellant explicitly waived the third degree murder instruction.

In Brown, the supreme court found that failure to instruct on a lesser degree of homicide in the first degree murder trial did not constitute fundamental error requiring reversal even in the absence of a proper objection in the trial court. The court recognized the possibility of fundamental error, stating:

[1]n order to be of such fundamental nature as to justify a reversal in the absence of timely objection the error must reach down to the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.

124 So.2d 484.

Where a defendant has specifically waived an instruction, however, there is no error because the waiver may have been intended as a tactical move, and the court has merely acceded to defendant’s waiver.

Appellant also contends that the court should not have' permitted the testimony of a witness, Wayne Mills, without a Richardson inquiry when the state had failed to comply with the discovery requirements of Florida Rule of Criminal Procedure 3.220(a)(l)(i), which provides:

(a) Prosecutor’s Obligation:
(1) After the filing of the indictment or information, within fifteen days after written demand by the defendant, the prosecutor shall disclose to defense counsel and permit him to inspect, copy, test and photograph, the following information and material within the state’s possession or control:
(i) The names and addresses of all persons known to the prosecutor to have information which may be relevant to the offense charged, and to any defense with respect thereto.

In response to appellant’s demand for discovery, the state supplied him with Mills’ address in Inverness, Florida. The state later learned that Mills was in Ohio and failed to advise the defense of this new information.

In Kilpatrick v. State, 376 So.2d 386 (Fla. 1979), the Florida Supreme Court recognized that rule 3.220 imposes a continuing mandatory duty on the prosecution to disclose the specific, relevant information requested.

In the case before us, the trial court did not specifically announce it was holding a Richardson inquiry but proceeded to make an inquiry into the circumstances surrounding the state’s failure to provide the proper address. The court, in effect, determined that the violation was substantial, declaring: “It appears that he is a very important witness.” The court also concluded that the violation was not willful, stating: “I don’t believe that the state has purposely hidden this witness by any means at all.” The court then permitted appellant’s counsel to depose the witness stating that after the deposition it would consider the appropriate remedy. Following the deposition, the court offered to grant appellant a continuance or even a mistrial. Defense counsel, however, refused these alternatives and demanded that the witness be excluded from testifying at trial. The court denied this request.

Appellant argues that the trial court committed reversible error in failing to conduct an appropriate inquiry. In support of his contention, appellant cites Fasenmyer v. State, 383 So.2d 706, 708 (Fla. 1st DCA 1980), wherein the court stated:

[Fjailure to hold a Richardson inquiry after discovery violations by either the state or the defense is reversible error. Smith v. State, 372 So.2d 86 (Fla.1979). There appear to be no exceptions to the rule. See Boynton v. State, 378 So.2d 1309 (Fla. 1st DCA 1980); Henderson v. State, 372 So.2d 217 (Fla. 1st DCA 1979); Miller v. State, 373 So.2d 377 (Fla. 2d DCA 1979); Thompson v. State, 374 So.2d 91 (Fla. 2d DCA 1979).

See also Kilpatrick v. State at 389.

The factual bases for the holdings in those cases are dissimilar from the case before us. In Fasenmyer, the court not only failed to hold an inquiry to determine whether the testimony would prejudice the defense, it also denied the defense motion for a recess to investigate testimony which the witness would give. All other witnesses had been released and defense counsel was unable to recall Fasenmyer’s wife to rebut some of the witness’ testimony.

In Kilpatrick, the court permitted, without inquiry, an undisclosed rebuttal witness to testify. The trial court ruled that it was not necessary to disclose the names of witnesses who would be used only for rebuttal. On appeal, the court held that failure to conduct the inquiry mandated reversal.

In the case before us, the court was satisfied that appellant was prejudiced and that the omission on the part of the state was not willful. The court then offered the defense an opportunity to depose the witness and offered to continue the trial or to grant a mistrial. Appellant took the afforded opportunity to depose the witness but declined a continuance or mistrial and demanded that the testimony be excluded.

Rule 3.220(j)(l) delineates the sanctions a trial judge may impose. While exclusion of a witness is permitted, it is not mandated. The most important facet of the inquiry is “what effect, if any, did [the failure to disclose] have upon the ability of the defendant to properly prepare for trial.” Richardson at 775. Here the court granted appellant all reasonable opportunity to properly prepare for trial. The breach of rule 3.220 does not entitle a defendant, as a matter of right, to exclude a witness from testifying. As the court stated in Richardson:

The rule [3.220(j)(l)] was designed to furnish a defendant with information which would bona fide assist him in the defense of the charge against him. It was never intended to furnish a defendant with a procedural device to escape justice. Yet such a result would be inescapable if the state’s non-compliance with the rule necessarily required the exclusion of the non-listed witnesses from testifying.

246 So.2d at 774.

AFFIRMED.

ORFINGER and COWART, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . This rule provides:
      (I) If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order such party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.


author: DAUKSCH, Chief Judge.

text:
    Victor Lee FULLER, Appellant, v. STATE of Florida, Appellee.
    No. 80-719.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 1981.

      James B. Gibson, Public Defender, and Ronald K. Zimmett, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a sentence. The appellant, because of his age and because he met the other statutory criteria, was entitled to be sentenced as a youthful offender under section 958.04, Florida Statutes (1979). Abram v. State, No. TT-193 (Fla. 1st DCA April 14, 1981) [1981 F.L.W. 879]; Warren v. State, 391 So.2d 775 (Fla. 4th DCA 1980); Killian v. State, 387 So.2d 385 (Fla. 2d DCA 1980).

When this question was raised below, apparently the trial court felt that because the appellant was first placed on probation, then violated it and came up for sentencing that he was not entitled to the benefits of the statute. We can find no legal basis or logic for that conclusion, especially since our Supreme Court has ruled in Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981) that placing a person on probation is not a sentence.

SENTENCE REVERSED AND REMANDED FOR RESENTENCING.

COBB and SHARP, JJ., concur.


author: COBB, Judge.

text:
    STATE of Florida, Appellant, v. George Wayne SHEPPARD, Appellee.
    No. 80-1414.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 1981.
    Jim Smith, Atty. Gen., Tallahassee and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellant.
    Andrew A. Graham of Reinman, Harrell, Silberhorn, Moule & Boyd, P. A., Melbourne, for appellee.

      . In his brief, Sheppard admits the traverse places into issue the location of contact, but argues the state has no evidence to support its position. Because a jury question exists, Sheppard’s motion should not have been granted. State v. Green, No. 80-1427, - So.2d - (Fla. 5th DCA July 15, 1981) [1981 FLW 1693]; Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla.1977); State v. DeJerinett, 283 So.2d 126 (Fla. 2d DCA), cert. denied, 287 So.2d 689 (Fla.1973).

   COBB, Judge.

The appellee, George Wayne Sheppard, was charged with vehicular homicide in connection with an automobile-motorcycle accident. He moved to have the information against him dismissed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The trial court granted the motion, and the state appeals. We reverse.

At the time of the accident, both Sheppard and the decedent-motorcyclist were traveling eastbound on a four-lane (two lanes eastbound, two lanes westbound) highway. In his (c)(4) motion, Sheppard acknowledged that he was weaving within the left-hand lane of the eastbound side; he did not, however, admit he was weaving from the left lane into the right lane and back. Sheppard then alleged in paragraph 3(d) that:

The Decedent riding an eastbound motorcycle passed the Defendant on the right [in the right-hand lane] and cut in front of the Defendant to [sic] quickly causing the right front of the automobile to strike the rear of the Decedent’s motorcycle.

The state traversed the motion, admitting all of Sheppard’s allegations with the exception of paragraph 3(d), which it specifically denied. The state then alleged the following additional facts:

(1) While travelling the mile that preceded the accident point, Sheppard weaved constantly from the right lane to the left and returning;
(2) The weaving was continuous;
(3) The decedent in the right lane had just passed Sheppard when Sheppard sped up rapidly and cut over to the right lane, causing the accident;
(4) Sheppard continued for about 900 feet with the motorcycle under his car before he stopped;
(5) Sheppard had been drinking and appeared to witnesses to be under the influence of alcohol.

At the hearing on the motion, the discussion centered around (1) whether Sheppard’s conduct was the proximate cause of the accident; and (2) whether Sheppard’s conduct amounted to “recklessness” under the vehicular homicide statute. The state attorney doubted any of his witnesses could testify to the exact location of contact. The trial judge took the position that Sheppard could not be responsible for the death if the point of contact was the left-hand lane. Apparently finding the state could produce no evidence of location and, therefore, proximate causation, and, further, that Sheppard’s conduct did not amount to recklessness, the trial court granted the motion to dismiss.

On appeal, the state argues several grounds for reversal. Having considered all of them, we reverse because the state’s traverse creates factual issues as to both proximate cause and recklessness. Because material factual issues exist, the trial court erred by granting Sheppard’s (c)(4) motion.

The first factual issue concerns the point of contact between Sheppard’s automobile and the decedent’s motorcycle. At the hearing on the motion to dismiss, Sheppard’s attorney argued the state was unable to prove that Sheppard weaved into the decedent’s lane at the point of contact and that, therefore, the state could not prove the proximate cause of death. Evidence or its lack, however, is not properly considered on a (c)(4) motion, and the court must look only to the prima facie sufficiency of the alleged facts. Jones v. State, 392 So.2d 18 (Fla. 1st DCA 1980); State v. Bryant, 373 So.2d 708 (Fla. 3d DCA 1979); State v. J. T. S., 373 So.2d 418 (Fla. 2d DCA 1979); State v. West, 262 So.2d 457 (Fla. 4th DCA 1972). The state’s traverse alleges Sheppard weaved over to the right lane, the decedent’s lane, sped up and hit the decedent. These allegations create a jury issue as to where on the road the contact occurred. Such issue is not properly resolved on a motion to dismiss.

Similarly, a factual issue exists with respect to whether Sheppard was “reckless” as proscribed by the vehicular homicide statute. Upon the additional facts alleged in the state’s traverse, it cannot be said that, as a matter of law, Sheppard was not reckless. Again, resolution of such an issue is within the province of the trier of fact. Under the circumstances, the trial court erred by granting Sheppard’s motion. State v. Green, 400 So.2d 1322 (Fla. 5th DCA 1981); Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla.1977); State v. DeJerinett, 283 So.2d 126 (Fla. 2d DCA), cert. denied, 287 So.2d 689 (Fla.1973).

Because the state in its traverse alleged facts which, if believed, would support the conclusion that Sheppard was reckless and that his recklessness was the proximate cause of the motorcyclist’s death, the order granting Sheppard’s (c)(4) motion is reversed, and the cause remanded for further proceedings.

REVERSED and REMANDED.

ORFINGER and COWART, JJ., concur.

      . Section 782.071, Florida Statutes (1979), provides:
      “Vehicular homicide” is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.


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

text:
    SUN FIRST NATIONAL BANK OF ORLANDO, as Personal Representative of the Estate of John J. McCRONE, Deceased, Appellant, v. Ann SANTARSIERO, Appellee.
    No. 80-1481.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 1981.
    Carter A. Bradford of Bradford, Tharp & Fletcher, Orlando, for appellant.
    James S. Byrd, Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from an order extending the time within which appellee might file an independent action on her claim against the estate. The personal representative had filed an objection to the claim.

The court found that good cause, as provided in the statute, had been shown. The hearing on the petition was not transcribed and no record reflecting the evidentiary basis for the court’s finding has been presented for review.

The lower court’s ruling comes to us clothed with a presumption of correctness. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980). Without a record to demonstrate an abuse of discretion by the trial court, we must assume that facts were presented which support the decision.

AFFIRMED.

COBB and SHARP, JJ., concur.


text:
    David Marvin LEE, Appellant, v. STATE of Florida, Appellee.
    No. 81-93.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 1981.
    James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence pursuant to appellant’s plea of guilty. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On April 16, 1981 this court gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. Any question of the voluntariness of a plea should be presented first to the lower court. The motion of the Public Defender to withdraw is granted and the appeal is hereby DISMISSED.

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

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


author: WATSON, Justice. MARCUS, Justice LEMMON, Justice, PER CURIAM. DENNIS, Justice, LEMMON, Justice,

text:
    STATE of Louisiana v. Carl Ray FOY and Arthur Berry.
    No. 80-K-1814.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Dissenting Opinion Jan. 30, 1981.
    On Rehearing July 2, 1981.
    Raymond L. Cannon, Indigent Defender Program, Tallulah, for defendants-relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James D. Caldwell, Dist. Atty., Crawford A. Rose, Asst. Dist. Atty., for plaintiffs-respondents.
   WATSON, Justice.

Defendants’ application for supervisory writs was granted to consider their contention that this prosecution by the State places them twice in jeopardy for the offense of simple burglary.

Defendants, Carl Ray Foy and Arthur Berry, were arrested for breaking into the Tallulah High School. They pleaded guilty in the Tallulah Mayor’s court to violation of three city ordinances including Section 12-71 of the City Code, burglary. Each was sentenced to a fine of $100 or thirty days in jail on the burglary charge. Defendants paid the fines.

Subsequently, the State charged defendants with simple burglary of the Tallulah High School in violation of LSA-R.S. 14:62. The trial court denied a motion to quash the informations on the basis of double jeopardy, adopting the State’s argument that the Mayor’s court did not have jurisdiction over the felony offense of burglary. LSA-Const. 1974, Art. 6 § 9(A)(1) provides that ,![n]o local governmental subdivision shall . . . define and provide for the punishment of a felony. . . ”. The trial court concluded that the Legislature’s definition of simple burglary as a felony offense had preempted the authority of a local government to punish the same conduct.

LSA-Const. 1974, Art. 1 § 15 provides that “[n]o person shall be twice placed in jeopardy for the same offense.. . ”. Multiple punishments for the same offense are prohibited. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). When the same conduct violates two statutory provisions, the offenses are identical for double jeopardy purposes unless each requires proof of an additional fact that the other does not. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Doughty, 379 So.2d 1088 (La.,1980).

Section 12-71 of the City Code of Tallulah provides that burglary “. . . is the unauthorized entering of any vehicle, watercraft, dwelling or other structure, movable or immovable, with the intent to commit any forcible felony or any theft therein.” The ordinance tracks the language of LSA-R.S. 14:62 and therefore defines the same offense as the state law. LSA — C.Cr.P. art. 596; State v. Doughty, supra. The fact that one provision is a city ordinance and the other a state statute does not defeat double jeopardy protection. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970).

The State contends that the Mayor’s court in Tallulah had no jurisdiction over the offense of burglary, because of LSA — C. Cr.P. art. 595 which provides that “[a] person shall not be considered as having been in jeopardy in a trial in which . . . [t]he court was illegally constituted or lacked jurisdiction . . . ”. The article embodies a fundamental principle of double jeopardy law. Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084 (1907).

LSA-R.S. 33:401, states that:

“The mayor and board of alderman of every municipality shall have the . . . power:
$ ‡ jfc * $ #
“(6) To make all police regulations necessary for the preservation of good order and the peace of the municipality; and to prevent injury to, destruction of, or interference with public or private property.”

LSA-R.S. 33:441 provides for the establishment of Mayor’s courts in municipalities “with jurisdiction over all violations of municipal ordinances,” and LSA-R.S. 33:401(A)(32) authorizes punishment for each such violation by a fine of up to $200 or 30 days in jail. “. . . Mayor’s courts are courts which have jurisdiction to conduct trials, determine guilt, and impose sentences including fines and imprisonment for breach of municipal ordinances.” Sledge v. McGlathery, 324 So.2d 354 at 356 (La.,1975).

LSA-R.S. 33:401(A)(6), supra, and municipal ordinances passed under its authority, and presumed valid. Cf., State v. Skinner, 358 So.2d 280 (La.,1978); State v. Everfield, 342 So.2d 648 (La.,1977). A defendant in custody for violation of an ordinance enacted by authority of LSA-R.S. 33:401(A)(6) has standing to contest the constitutionality of that statute under LSA-Const. 1974, Art. 6 § 9(A)(1). LSA-C. Cr.P. art. 362. The State does not. State v. Suire, 319 So.2d 347 (La.,1975).

The Mayor’s court of Tallulah exercised jurisdiction within its statutory limits. Defendants have paid their fines for violation of a municipal ordinance and they have been discharged from custody. Their prosecution in the Mayor’s court has ended. Double jeopardy protection prevents the State from litigating a collateral constitutional question, as a prelude for retrying them under a different statute and punishing them a second time for the same offense. Brown v. Ohio, supra; State v. Doughty, supra.

Accordingly, the judgment of the trial court is reversed and the motion to quash is sustained; the charge of simple burglary in violation of LSA-R.S. 14:62 against defendants is dismissed.

REVERSED AND RENDERED.

MARCUS and LEMMON, JJ., dissent and assign reasons.

BLANCHE, J., dissents.

MARCUS, Justice

(dissenting).

Since La.Const. art. 6, § 9(A)(1) (1974) prohibits the City of Tallulah from enacting an ordinance defining and providing for the punishment of a felony, I do not consider that the mayor’s court had jurisdiction to accept a guilty plea to a violation of the ordinance in question. Hence, defendants were not in jeopardy since the court lacked jurisdiction. La. Code Crim.P. art. 595. Accordingly, I respectfully dissent.

LEMMON, Justice,

dissenting.

A reasonable interpretation of La.Const. art. 6, § 9 (1974) prohibits a municipality not only from imprisoning a person at hard labor, but also from prosecuting a person for conduct which the Legislature has determined to be serious enough to warrant imprisonment at hard labor. Thus, the state has preempted the field in prosecuting such conduct.

The majority interpretation is dangerous. Carried to its extreme, that interpretation would allow a municipality to enact an ordinance prohibiting the specific intent killing of a human being and would thereafter permit a murderer, who is a political crony of the mayor, to rush to the mayor’s court and plead guilty to a misdemeanor, thereby precluding prosecution in state court. Perhaps this extreme example poses no real threat, but between the black and white extremes are various shades of gray that offer abundant opportunities for abuse. The constitution prevents such abuse by denying to municipal governments the authority to enact ordinances such as the one that formed the basis for prosecution in the mayor’s court in this case. I would hold that defendant has not previously been in jeopardy because the mayor’s court lacked jurisdiction to prosecute him. C.Cr.P. art. 595.

ON REHEARING

PER CURIAM.

On rehearing, the original opinion of this court is reinstated.

DENNIS, J., concurs with reasons.

BLANCHE, J., dissents.

LEMMON, J., dissents and assigns reasons.

MARCUS, J., dissents for reasons assigned in his dissent on original hearing.

DENNIS, Justice,

concurring.

I respectfully concur.

The underlying question which caused us to grant a rehearing is the one noted but not answered by Justice Tate in his concurring opinion in State v. Suire, 319 So.2d 347, 351 (La.1975):

“One of the few limitations on the power of local governmental bodies prohibits them from enacting ordinances which ‘define and provide for the punishment of a felony.’ Article VI, Section 9(A)(1). The issue thereby posed is whether the constitutional intent was to limit the power of municipalities to impose imprisonment at hard labor for a violation of a municipal regulation, or whether instead the intent was to exempt from local regulation any conduct which the state legislation punishes as a felony.”

I voted to grant a rehearing because of the state’s argument in its application for rehearing that we cannot continue as in the past to rely on co-ordinated law enforcement policies to avoid the possibility of abuse represented by offenders who rush to municipal courts to plead guilty and avoid more serious punishment in state court. However, after an extensive examination of the transcripts of the constitutional convention debates, I frankly cannot find any solid evidence that it was the intention of either the delegates or the voters to exempt from local regulation all conduct which the state legislation punishes as a felony. Instead, on the present record, I am forced to conclude that the constitutional intent was merely to limit the power of municipalities to the imposition of punishment without hard labor for a violation of a municipal regulation.

I feel that it should be noted, however, that the abuses referred to in the state’s application for rehearing and oral argument on rehearing indicate a possible need for legislative attention to the problem of concurrent state and local jurisdiction of criminal prosecutions based on felonious conduct.

LEMMON, Justice,

dissenting.

La.Const. Art. VI, § 9 (1974) denies a local governing body the authority to “define and provide for the punishment of a felony”. This case presents the issues of (1) whether Section 9 renders unconstitutional the ordinance under which defendants were convicted and (2) whether the proceedings in the Mayor’s Court placed defendants in jeopardy, thereby precluding further prosecution for the burglary. The underlying question is whether a municipality can adopt an ordinance tracking the language of a state statute which defines a felony offense and thereby effectively preclude the state from prosecuting those whom the mayor prosecutes first.

In State v. Suire, 319 So.2d 347 (La.1975) similar issues were presented in the context of the provision of the Louisiana Constitution of 1921. This court held that the municipal ordinance which defined and punished aggravated battery (a felony under R.S. 14:34) was validly enacted, so that defendant’s conviction in the Mayor’s Court for aggravated battery under the ordinance effectively barred his prosecution for aggravated battery under the state statute. This result was supported by well established principles of double jeopardy. See Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084 (1907); C.Cr.P. arts. 591, 596, 597. In a special concurring opinion in the Suire case, Justice Tate (then a member of this court and a former member of the convention which framed the Louisiana Constitution of 1974) noted the differences between the applicable language of the 1921 Constitution and the 1974 Constitution.

The language of the present constitutional provision which proscribes the municipal enactment of an ordinance “defining and punishing a felony” was obviously designed to accomplish two related goals. The first, of course, was to prohibit a municipality from providing for imprisonment at hard labor as a punishment for conduct which is proscribed by municipal ordinance. Cities traditionally have enacted ordinances which prohibit various activities involving the control of domestic animals, the disposition of trash, the regulation of traffic, and the like. See R.S. 33:401, by which the Legislature has authorized municipal governments to enact “police regulations necessary for the preservation of good order and the peace”. La.Const. Art. VI, § 9 (1974) assures that persons convicted of violating such ordinances will not be subject to imprisonment at hard labor or to the other attendant consequences 'of a felony conviction.

The constitutional provision also may be interpreted as intending to assure preemption by the state of prosecution for criminal conduct which the Legislature has determined to be serious enough to warrant imprisonment at hard labor. In light of the double jeopardy implications of municipal prosecutions for such crimes, if constitutionally valid, this is arguably the only reasonable construction of the provision. If the intention of the constitution is that only the Legislature may provide for imprisonment at hard labor as a punishment for specific conduct, then it is logical when the Legislature determines that certain conduct should expose a person to such imprisonment, the municipal government should be precluded from deciding that such conduct should be less severely penalized. Waller v. Florida, above.

The Code of Criminal Procedure formerly provided that prosecution under municipal ordinances did not preclude prosecution under a “law enacted by the Louisiana Legislature”. See C.Cr.P. art. 597; former R.S. 15:275. It was not until after the United States Supreme Court’s decision in Waller (which held that trial on a municipal ordinance violation, which resulted in imposition of a jail sentence, precluded prosecution on state felony charges based on the same act when the ordinance violation was an included offense of the felony charge) that C.Cr.P. art. 597 was amended to reflect Louisiana’s present statutory position. See Act 1972, No. 648. Prior to the 1970 Waller decision there was no reason for the constitution to preclude such overlapping of criminal prosecutions. However, the Waller decision arguably provided the impetus for including in the 1974 Constitution a prohibition against a municipal government’s defining as a misdemeanor any conduct defined as felonious by the Legislature.

Moreover, it is logical to construe the provision in the present constitution as intended to prevent the possibility that a person, situated similarly to the defendants in the present case, can rush into a mayor’s court, plead guilty, pay a fine, and effectively insulate himself from prosecution for a crime punishable by a substantial period of imprisonment at hard labor.

The ordinance under which the defendants were charged before the Mayor’s Court defines burglary in the same terms as those used by the Legislature in R.S. 14:62. The ordinance is therefore unconstitutional, because the municipality, by defining as a misdemeanor that conduct which the Legislature has already defined as a felony, has enacted an ordinance beyond its constitutional authority. To allow a municipality to enact such an ordinance would be to allow the municipality to confer upon a defendant the option to plead or to be tried for the same conduct either as a misdemeanor or as a felony.

A mayor’s court has jurisdiction to receive guilty pleas in cases of violations of valid municipal ordinances. R.S. 33:441. However, since a municipality cannot constitutionally confer jurisdiction by enacting an ordinance which defines and punishes a felony, the Mayor’s Court lacked jurisdiction to prosecute the defendants in this case. Under C.Cr.P. art. 595(1) and (3) double jeopardy does not preclude the state prosecution sought to be dismissed.

The trial court properly denied the motion to quash.

      . As in Suire, 319 So.2d 349, n. 2, there is no evidence of a collusive effort to avoid State prosecution.

      . The district attorney, under La.Const. Art. V, § 26 (1974), has “entire charge” of prosecutions by the state. He has no such control over the prosecutions by the municipality in the mayor’s court under municipal ordinances. As will be amplified more fully, in cases involving conduct which the Legislature has branded as felonious, the district attorney is vested constitutionally with responsibility for the prosecution. See Guidry v. Roberts, 335 So.2d 438 (La.1976). The majority’s result in this case might tend to undermine what appears to have been the district attorney’s intended power and responsibility.

      .This is obviously a necessary measure. Otherwise, a local government could, for example, enact an ordinance defining criminal trespass or first offense driving under the influence of alcohol as a felony. Even though such cases may be prosecuted by the district attorney, La.Const. Art. V, § 26 (1974), in the district court, La.Const. Art. V, § 16 (1974), such a local ordinance would have the same effect as the enactment of a “local felony”, something which the Legislature may not do under La. Const. Art. Ill, § 12(A)(10) (1974). The combined effect of the articles is to provide that conduct, which may be defined as an offense only in a particular municipality, may only be penalized as a misdemeanor.

      . This proscription does not totally eliminate the problem. The municipality could define and prohibit a lesser included misdemeanor offense. Prosecution by municipal authorities for the lesser offense (in the absence of collusion) arguably bars prosecution by the district attorney for the greater felony offense. C.Cr.P. art. 596(1).

      . The ordinance also provides for a relatively minor penalty when compared to the penalty provided by the Legislature for the same conduct. The maximum penalty of a municipal ordinance is set forth in R.S. 33:401(A)(32) which provides as follows:

        “To pass all ordinances and to enforce the same by fine not to exceed two hundred dollars or imprisonment not exceeding thirty days, or both, provided that ordinances prohibiting the operation of a motor vehicle by a person under the influence of intoxicating liquor or narcotic drugs may provide for a punishment not to exceed a fine of five hundred dollars or imprisonment not exceeding sixty days, or both.”
      The penalty provided by R.S. 14:62 for simple burglary is imprisonment with or without hard labor for not more than twelve years.

      . On original hearing, the majority treated the municipal conviction as “presumptively valid” and not subject to “collateral attack” by the state. If valid at all, the “collateral attack” argument is not persuasive in this case, since defendants (1) did not contest their guilt in an adversary trial and (2) received only a fine (which presumably may be refunded). Whether the “collateral attack” argument is valid in a case of a contested determination of guilt or of a sentence of imprisonment is not here presented. Some courts, however, have held that jeopardy has not attached, even if the defendant has actually been deprived of liberty or property, when the court was without jurisdiction. See Commonwealth v. Lovett, 374 Mass. 394, 372 N.E.2d 782 (1978); Parks v. State, 41 Md.App. 381, 397 A.2d 212 (Md.1979).