text:
    John E. PETERSON, Rolf R. Mossbacher and Bay County Citizens for Neighborhood Preservation, Inc., Appellants, v. FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, and International Paper Realty Company, Appellees.
    No. KK-252.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1980.
    Jerry W. Gerde, of Davenport, Johnston, Harris, Gerde & Harrison, Panama City, for appellants.
    C. Laurence Keesey, Dept, of Community Affairs, Roy C. Young of Smith, Young & Blue, Tallahassee,-for appellees.
   MILLS, Chief Judge.

Peterson, et al. appeal from final agency action of the Division of State Planning, whose authority as state land planning agency has now been assumed by the Department of Community Affairs (Department), denying their petition for formal hearing under Section 120.57(1), Florida Statutes (1977). The petition was filed after the Department issued a binding letter to International Paper Realty Corp. (IPRC) pursuant to Section 380.06(4)(a), Florida Statutes (1977), determining that a 90-acre tract of land in Bay County was not a development of regional impact (DRI).

The issue which is dispositive of this appeal is whether Peterson, et al. had standing under Section 380.06(4)(a) to demand a Section 120.57(1) hearing. We agree with the Department that they did not and affirm.

IPRC is the owner of a 90-acre tract of land, Pretty Bayou Tract, in Bay County. The tract is 17 miles from the nearest Bay County boundary. Peterson, et al. are homeowners whose property is near or adjacent to the tract. IPRC proposes to develop the Pretty Bayou Tract as a residential area with a total of 534 dwelling units.

Peterson, et al. began writing the Department in December 1978 to express their contention that the proposed development would be a DRI. During the course of the correspondence, they alleged, among other things, that the development would adversely impact upon St. Andrews Bay and Robinson Bayou which bordered the development area; that the destruction of certain wetlands would be ecologically harmful; and that the project would have a multi-county impact because it would be competing with similar developments in other counties.

On 6 January 1978, the Department received from IPRC a request for a binding letter of interpretation as to whether the proposed development would be a DRI. A formal evidentiary hearing was not requested by IPRC. On 6 February, Peterson, et al. filed with the Department documents entitled “Appearance as Parties” and “Petition to Intervene” alleging that they would be affected by the proposed project and by any agency action on it. On 22 February, the petition to intervene was supplemented by adding that the petition was filed in accordance with Section 120.57(1). The Department responded on 7 March by letter stating that the “request for a formal hearing pursuant to Section 120.57(1), Florida Statutes, is hereby denied.”

On 27 March, Peterson, et al. filed a “request for formal hearing under Chapter 120.57(1), F.S.” By letter dated 12 April, the Department stated that it could not act on their request of 27 March, that the binding letter of 14 March complied with the initial steps of an informal proceeding under Section 120.57(2)(a)l, that the proceeding could be continued through the remaining steps of the informal process, and that there was inadequate information on the face of the pleadings to allow the Department to determine whether there were disputed issues of material fact.

On 18 April, Peterson, et al. responded that an informal proceeding would be inappropriate and that a formal hearing was again requested. They asked that if the request were denied, it be denied in an “order” form appealable to this court. On 25 April, by letter sent to Peterson, et al., the Department denied the Section 120.-57(1) hearing on the ground that a proper petition for a formal hearing had not been filed, but granted them a Section 120.-57(2)(a) hearing and gave them 20 days in which to submit any written evidence regarding the binding letter issued on 14 March. Peterson, et al. were informed that the hearing would be before the then division director and would be recorded.

On 15 May, Peterson, et al. filed a “Petition for Formal Hearing” which complied with the requirements of a petition for a Section 120.57(1) hearing. IPRC responded to the petition by arguing that the binding letter of 14 March was final agency action and the Department no longer had jurisdiction to grant a hearing on the matter.

On 22 May, the Department informed Peterson, et al. that the binding letter of 14 March was final agency action as to their request for a formal hearing.

Peterson, et al. appeal from the 22 May letter.

Peterson, et al. are not entitled to party status under Section 380.06(4)(a). They have no substantial interests that will be determined or affected by the Department’s issuance of a binding letter. Their standing must be considered in light of Chapter 380.

Only DRIs are subject to the requirements of Section 380.06, and developers need a means of determining whether their projects constitute a DRI. The Legislature has provided that if a developer is in doubt whether his proposed development would be a DRI he may request a binding letter of interpretation issued by the Department. Only the Department and the developer participate in the issuance of a binding letter. There is no legislative authority for other persons to obtain standing in such proceedings.

The legislature intended that the Department provide quick resolution of the developer’s doubts by requiring that a binding letter issue within 60 days of the request. A binding letter only determines whether a proposed development is a DRI; it is not a permit to begin any development activity and does not protect the developer from any state, federal, or local restrictions applicable to its development. It does not supplant any local requirements. It does not insulate the developer from the jurisdiction or permitting requirements of other federal, state, or local agencies.

The intervention of parties not contemplated by the legislature would bring about delay and inhibit developers from seeking a binding letter. Without the developer’s cooperation, many actual DRIs would escape consideration.

Further, Peterson, et al. have no substantial interest in the issuance of the binding letter. They do not state how or why a finding that the IPRC’s project is a DRI would affect their homes differently than the finding that the project is not a DRI. They have not shown any injury and have merely raised the possibility of some future speculative injury resulting from construction of the IPRC development. The Department’s binding letter, however, is not even a permit or license to begin construction.

The “adverse effect” of the agency decision upon Peterson, et al. is nonexistent.

The fact that the Department received information from Peterson, et al. and utilized such information does not constitute their recognition as parties to the proceeding. Despite the fact, however, that Peterson, et al. were not proper parties and had not alleged a substantial interest in the proceedings, the Department offered them an opportunity to present any evidence or information they desired in an informal proceeding. They refused to accept this opportunity.

Peterson, et al. had no enforceable right of their own volition to participate as formal parties to the binding letter proceeding. Suwannee River Area Council Boy Scouts of America v. Department of Community Affairs, 384 So.2d 1369 (Fla. 1st DCA 1980). They rejected the opportunity to offer evidence and present information at an informal proceeding. See United States Service Industries-Florida v. Florida Department of Health and Rehabilitative Services, 383 So.2d 728 (Fla. 1st DCA 1980). The record before us clearly shows that the Department fully complied with the statutory requirements of Chapter 380 in issuing the binding letter determining that the Pretty Bayou Tract development was not of regional impact.

We affirm the order appealed.

ROBERT P. SMITH, Jr., J., and MITCHELL, HENRY CLAY, Jr., Associate Judge, concur.


source: Caselaw Access Project

author: SHAW, Judge.

license: Public Domain

text:
    Billy Eugene RETHERFORD, a/k/a Boe Lee Harper, Appellant, v. STATE of Florida, Appellee.
    No. MM-316.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1980.

      John D. C. Newton, II, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., for appellee.
   SHAW, Judge.

Appellant was charged in a three-count information with the possession of barbiturates with intent to distribute, possession of marijuana with intent to distribute, and possession of hashish with intent to distribute in violation of Section 893.13, Florida Statutes. The trial court imposed separate, concurrent five-year sentences on each of the three counts.

Appellant contends that the possession of hashish and the possession of marijuana are the same crime, to wit: the possession of cannabis. To impose two separate sentences for the single offense is therefore illegal. We agree.

The applicable statute defines cannabis as:

“Cannabis” means all parts of the plant of the species Cannabis sativa, L., including all varieties thereof, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. It does not include the mature stalks of the plant; fiber produced from the stalks; oil or cake made from the seeds of the plant; any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake; or the sterilized seed of the plant which is incapable of germination. Section 893.02(2), Florida Statutes, (1977).

Hashish, by name, is not an enumerated controlled substance listed in Chapter 893. Casey v. State, 330 So.2d 41 (Fla. 1st DCA 1976). It is, however, the extracted resin of the plant Cannabis sativa, and fits within the above definition of “cannabis”. It appears, therefore, that possession of hashish is punishable only by virtue of the fact that it is, by definition, cannabis.

Section 893.13(l)(f), Florida Statutes (1977), is a penalty section which provides that:

If the first offense is the possession or delivery without consideration of not more than 5 grams of cannabis, that person shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 and s. 775.083. For purposes of this subsection, “cannabis” shall not include the resin extracted from the plant Cannabis sativa, L., or any compound, manufacture, salt, derivative, mixture, or preparation of such resin.

The net effect of the subsection is to make delivery or possession of less than 5 grams of cannabis, by a first offender, a misdemeanor except when the cannabis is in its resin form. Possession or delivery then becomes a felony regardless of amount. Marshall v. State, 381 So.2d 276 (Fla. 5th DCA 1980). The subsection merely delineates when the offender can be sentenced for a felony as opposed to a misdemeanor. In this instance the distinction is academic in that the appellant was convicted of possession of more than 5 grams of marijuana and possession of hashish. He may, therefore, be sentenced as a felon, but not for two separate felonies resulting from possession of cannabis in two different forms. Brainard v. State, 380 So.2d 1302 (Fla. 2d DCA 1980); accord, Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974).

Accordingly, we vacate appellant’s sentence for possession of hashish with intent to distribute and remand to the trial court for proceedings consistent with this opinion.

McCORD and BOOTH, JJ., concur.


author: MILLS, Chief Judge.

text:
    MORGAN YACHT CORPORATION/BEATRICE FOODS and Gallagher Bassett Insurance Company, Appellants, v. Neil J. EDWARDS, Appellee.
    No. QQ-149.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1980.
    Thomas D. Masterson of Masterson, Rogers> Patterson, Masterson & Lowe, P.A., St. Petersburg, for appellants.
    Neil j Awards, pro se.
   MILLS, Chief Judge.

Appellants (E/C) appeal an order of a Judge of Industrial Claims denying their motion to set aside an order approving a settlement obtained by appellee’s (claimant) fraud and misrepresentations because the Judge concluded he lacked authority to set aside the order. We do not agree and reverse.

Claimant injured his right shoulder in an industrial accident on 27 June 1978. The injury was diagnosed as a partial tear of the right rotator cuff. The shoulder injury, merging with a prior left arm amputation, resulted in claimant’s being rated at 30% permanent partial disability of the body as a whole. He filed a claim for benefits.

Claimant and E/C reached a settlement by joint petition and stipulation agreeing to a 45% permanent partial disability to 'the body and $2,325 as future medical expenses. This stipulation was entered into based on the claimant’s testimony that he had not previously had an injury to his right shoulder and that he was unable to find employment after 200 unsuccessful attempts. The settlement was approved at a hearing on 27 November 1978.

Subsequently, E/C learned that claimant had previously injured his right shoulder in an automobile accident and this injury had been diagnosed as a torn right rotator cuff. Also, at the time the joint petition and stipulation was entered, claimant was employed at an annual salary of $10,700.

Based on this information, E/C filed a motion to modify and/or rescind the joint petition and order because the settlement and the order based thereon resulted from claimant’s misrepresentations. A hearing was held on E/C’s motion. The JIC found that claimant lied at the settlement hearing about his employment status, the origin and cause of his injury, fraudulently concealed the origin of his injuries, and fraudulently induced E/C to settle his claim. The JIC found however that he had neither statutory nor inherent authority to set aside a judgment obtained by fraud. E/C’s motion was denied and dismissed with prejudice.

The order under attack clearly and unequivocally finds that the settlement and order approving the settlement were brought about by claimant’s misrepresentations and fraud. It would be inconceivable to give a Judge of Industrial Claims authority to approve á settlement but no authority to rescind his action when it is based on misrepresentations and fraud.

It is our opinion that a Judge of Industrial Claims has this authority. Section 440.-33(1), Florida Statutes (1977), provides that a Judge of Industrial Claims has authority to do all things conformable to law which may be necessary to discharge the duties of the office. Setting aside orders based on flagrant fraud and misrepresentations as present in this case is an authority granted by Section 440.33(1).

The order appealed is reversed and the order approving the settlement is vacated and set aside.

McCORD and BOOTH, JJ., concur.


author: PER CURIAM.

text:
    HOUSING BY VOGUE and Liberty Mutual Insurance Company, Appellants, v. Otis HENDON, Appellee.
    No. RR-42.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1980.
    Steven H. Gray of Green, Simmons, Green, Hightower & Gray, P.A., Ocala, for appellants.
    Stephen A. Rappenecker, P.A., Gaines-ville, for appellee.
   PER CURIAM.

Appellants challenge the deputy’s order modifying a previous compensation order based on mistake of fact. The deputy found that claimant now had epileptic seizures which were a result of the previous industrial accident. He, therefore, found that claimant was temporarily and totally disabled since the date of the accident. This finding was based upon the testimony of Dr. Cauthen.

Appellants argue that since testimony as to claimant’s epileptic condition was in the record of the first hearing, when claimant was found to have no permanent head injury, a finding of mistake of fact was erroneous. We agree that the record does not support a finding of mistake of fact. However, we find that the record does support a change of condition. Dr. Cauthen’s testimony reveals that claimant’s seizures were more severe and much more frequent than those manifested prior to the first hearing. Therefore, we hold the modification was proper based upon a change of condition. See Rush Tractor Co., Inc. v. Keene, IRC Order 2-3298 (Dec. 21, 1977), cert. denied, 355 So.2d 515 (Fla.1978).

As to all other points the order is affirmed. The order is clarified as follows: The carrier is to provide the claimant such medical care and attention as the nature of his injury and the process of his recovery might require under the direction of Dr. Joseph C. Cauthen from July 31, 1979 forward.

ERVIN and SHAW, JJ., and WOODROW M. MELVIN, (Retired) Associate Judge, concur.


text:
    Thomas F. RAYFIELD, Appellant, v. WOMETCO ENTERPRISES, INC., and Hartford Accident & Indemnity Company, Appellees.
    No. RR-78.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1980.
    Edward Sehroll, Miami, for appellant.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellees.
   PER CURIAM.

Appellant and appellees both appeal from a workers’ compensation order awarding certain benefits to appellant. We find error in one point raised by appellees.

The first order of the Judge of Industrial Claims in the cause was reviewed by the Industrial Relations Commission and remanded with the following single instruction:

To make further definitive findings and arrive at a correct permanent disability rating attributable to the accident of September 20, 1973, based on the present record.

On remand, the Judge of Industrial Claims reconsidered the evidence and concluded, among other things, that maximum medical improvement occurred on a date different from that found in the original order. Ap-pellees assert that the establishment of a new maximum medical improvement date was beyond the scope of the remand and, therefore, was improper. We agree and reverse that portion of the order. After careful consideration of the other points raised, we find no further error.

Affirmed in part and reversed in part.

MILLS, C. J., and McCORD and WENT-WORTH, JJ., concur.


author: WENTWORTH, Judge.

text:
    ARLEN REALTY, INC., et al., Appellants, v. The PENN MUTUAL LIFE INSURANCE COMPANY, Appellee.
    Nos. SS-401, SS-425.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1980.
    John D. Milton, Jr. of Martin, Ade, Birch-field & Johnson, Jacksonville, for appellants.
    Robert T. Hyde, Jr., Jacksonville, of Broad & Cassel, Bay Harbor Island, for appellee.
   WENTWORTH, Judge.

Appellants seek review of a mortgage foreclosure by a summary judgment which we affirm. Appellants allege, among other points, that appellee has not established the predecessor in title’s ownership and possession of the subject property at the time of transfer to appellee.

Upon motion for summary judgment it is the movant’s burden to demonstrate, by admissible evidence, the nonexistence of any genuine issue of material fact. Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla.1965). In the present case the predecessor in title, joined as a party defendant, admitted in a responsive pleading his prior ownership and possession of the subject property. Fla.R.Civ.P. 1.510(c) provides that, upon motion for summary judgment, the trial court may consider the pleadings in determining whether any genuine issue exists as to any material fact. Gard, Fla. Evidence, Vol. 1 (1980), Comment to Rule 10:12, suggests that admissions by a predecessor in title are generally admissible against a subsequent grantee.

Appellants did not respond to appellee’s motion for summary judgment and have not affirmatively .challenged the predecessor in title’s ownership and possession of the subject property. Although the predecessor in title no longer held any interest in the property at the time he admitted his prior ownership and possession, in the circumstances of this case his admission was properly considered, upon motion for summary judgment, as against his co-defendants, the appellants.

The order appealed is AFFIRMED.

McCORD, J., and -WOODIE A. LILES (Ret.), Associate Judge, concur.


author: PER CURIAM. BOOTH, Judge,

text:
    Eileen BRENNAN, Petitioner, v. PROFESSIONAL PRACTICES COUNCIL, an Agency of the State of Florida, Respondent.
    No. VV-67.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1980.
    Michael R. N, McDonnell, Tallahassee, for petitioner.
    Hugh Ingram, James D. Little, Tallahassee, for respondent.
   PER CURIAM.

The petitioner, an English teacher in a Santa Rosa County middle school, seeks a writ of prohibition preventing the Professional Practices Council from sending an “assistance reviewer” to petitioner’s classroom to evaluate her teaching. The principal at petitioner’s school requested the assistance reviewer (an English teacher in a Leon County middle school) to observe, report on petitioner’s strengths and weaknesses in the classroom and suggest ways to improve petitioner’s teaching. The review was not for disciplinary or dismissal purposes. Petitioner asserts there was no statutory authority for the PPC’s actions. We agree with the PPC that, since no proceeding has been held or is threatened to be held, and since the PPC is not wielding any quasi-judicial power in the acts complained of, there is no basis for issuing a writ of prohibition. See State ex rel. Swearingen v. Railroad Commissioners, 79 Fla. 526, 84 So. 444 (1920).

The suggestion for writ of prohibition is denied.

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

BOOTH, J., dissenting with opinion.

BOOTH, Judge,

dissenting:

I would issue writ of prohibition. State ex rel. Greenberg v. State Board of Dentistry, 297 So.2d 628, 635 (Fla. 1st DCA 1974), cert. diss. 300 So.2d 900 (Fla.1974).


author: LARRY G. SMITH, Judge.

text:
    Kenneth HODGES, Appellant, v. STATE of Florida, Appellee.
    No. LL-252.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1980.
    Joseph S. Farley, Jr., and Lacy Mahon, Jr. of Mahon, Mahon & Farley, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

Hodges appeals a judgment and sentence finding him guilty of sexual battery with the use of force not likely to cause personal injury, as proscribed by Section 794.011(5), Florida Statutes (1978). We find no error in the trial court’s denial of appellant’s proffer concerning prior consensual sexual activity by the victim, under Section 794.-022, Florida Statutes; no reversible error in the allegedly improper comment by the prosecutor in closing argument; and no error on the part of the trial court in failing to instruct the jury on the offense of attempt to commit sexual battery with the use of physical force and violence not likely to cause serious personal injury, under Section 794.011(5), Florida Statutes.

On cross-examination of the victim, defense counsel sought to elicit testimony concerning her prior sexual conduct, and upon proffer, out of the presence of the juiy, the victim testified that she had had sex once in the last three or four weeks before she was raped by appellant; that she was not dating anyone regularly, but that her former boyfriend had permitted her to stay at his residence until she could make arrangements to live elsewhere, and that she had slept with him one night. She further denied ever having anything to do with a certain named individual, and denied that she was having sex with four or five other men. The trial court denied defense counsel’s request to present the proffered testimony to the jury.

The trial judge ruled correctly. Section 794.022(2), provides that specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in prosecutions under Section 794.011, Florida Statutes; however, under the statute (Section 794.022(2)), when consent by the victim is at issue (as it became in this case), such evidence may be admitted if it is first established to the court outside the presence of the jury “that such activity shows such a relation to the conduct involved in the case that it tends to establish a pattern of conduct or behavior on the part of the victim which is relevant to the issue of consent.” The evidence presented by the State in its case in chief, prior to the proffer, disclosed that appellant, while riding in his car with the witness, Wardrup, picked up the victim who was hitchhiking and who stated that she wanted to go to Main Street to see some kin people and then wanted to ride to her home. According to Wardrup, the victim made no sexual advances toward him or appellant while he was in the car, and that the victim was not on dope, although appellant asked him to tell the authorities that the girl was on dope. Wardrup was let out of the car at his home, following which appellant took the victim to a wooded area, where the alleged sexual battery occurred. The victim denied that she gave appellant permission to make advances, stated that appellant threatened to kill her, and that she was crying and screaming during the assault. In his statement given to an officer of the Jacksonville Sheriff’s Department, appellant denied having sexual intercourse with the victim. When appellant took the stand in his own defense, he testified that the victim willingly had sex with him.

We agree with the ruling of the trial judge that the proffered testimony fails to show such a relation to the conduct involved in the case that it tends to establish a pattern of conduct or behavior on the part of the victim which is relevant to the issue of consent. Such a determination obviously involves the exercise of judgment on the part of the trial court, sitting as a trier of the facts in determining admissibility of evidence under the statute. Here, one episode of sexual intercourse three or four weeks before the assault hardly establishes a “pattern of conduct or behavior” on the part of the victim; and the evidence of having slept with her boyfriend on one occasion bears no relation to the issue of whether the victim consented during this hitchhiking encounter. Evidence merely disclosing prior sexual activity or looseness of morals in that regard is not admissible under the statute. In order to be admissible, the evidence must be of such a nature as to give rise to a reasonable assumption that because the victim engaged in a certain disclosed pattern of conduct or behavior, the victim probably consented to the same activity with the accused. In this respect, the test for admissibility is much like that for admission of “other crime” evidence under Williams v. State, 110 So.2d 654 (Fla.1959), and its progeny. The proffered conduct simply fails to meet the test required by the statute.

The prosecutor’s unobjected to comment in closing argument that the defendant had failed to show that the State’s witnesses ever lied does not constitute fundamental error, and is not subject to review. State v. Cumbie, 380 So.2d 1031 (Fla.1980).

Finally, we find no merit in appellant’s contention that the statements of the trial judge concerning instructions she intended to give were misleading, and appellant’s failure to object to the instructions as given precludes review under Florida Rule of Criminal Procedure 3.390(d). In this case the original information, filed March 15, 1978, charged the offense of sexual battery by use of physical force and violence not likely to cause serious personal injury, Section 794.011(5), Florida Statutes. However, on July 10,1978, an amended information in the same case was filed charging sexual battery by coercing the victim to submit by threatening to use force or violence likely to cause serious personal injury, Section 794.-011(4)(b), Florida Statutes. It is clear that the case proceeded to trial on the amended information, and the offense of sexual battery by the use of physical force and violence not likely to cause serious personal injury was treated as a lesser included offense. The trial judge gave jury instructions on the offense charged, that is, sexual battery by threatening to use force likely to cause serious personal injury, attempted sexual battery by threatening to use force likely to cause serious personal injury, sexual battery with the use of force not likely to cause serious personal injury, battery, and assault. No objection was made to the trial court’s failure to instruct on the offense of attempt to commit sexual battery with the use of force not likely to cause serious personal injury, nor was any objection made to the verdict form which contained only the offenses upon which jury instructions were given.

Our decision is guided by the recent decision of the District Court of Appeal, Fifth District, in Carter v. State, 380 So.2d 541 (Fla. 5th DCA 1980). In Carter the appellate court affirmed defendant’s conviction of sexual battery with the use of force not likely to cause serious personal injury, based upon a jury instruction, given without objection, treating this offense as a lesser included offense of the crime charged, viz, sexual battery by threatening to use physical force or violence likely to cause serious personal injury, under Section 794.011(4)(b). In this case, as in Carter, there was proof of force as required for the offense under Section 794.011(5), and the trial court without objection treated the offense under Section 794.011(5) as a lesser included offense of the crime charged. An instruction was given in this case on the offense of attempt to commit the crime charged, under Section 794.011(4)(b), which satisfies Rule 3.510, Rules of Criminal Procedure, requiring an instruction on the attempt to commit the offense charged. Appellant does not raise the issue that was argued in Carter, supra, that he was convicted of an offense for which he was not charged; and appellant’s brief contains no reference to conflict between Carter and Grange v. State, 371 So.2d 723 (Fla. 1st DCA 1979), on the issue of whether the offense under Section 794.011(5) is a lesser included offense of sexual battery under Section 794.011(4)(b).

The judgment and sentence are AFFIRMED.

McCORD and SHIVERS, JJ., concur.


text:
    Francis Howard JAMES, Appellant, v. STATE of Florida, Appellee.
    No. OO-194.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1980.

      Michael J. Minerva, Public Defender, and Thomas S. Keith, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

James, convicted of kidnapping with a firearm, aggravated assault with a firearm, and possession of a short-barreled shotgun, appeals, urging that aggravated assault with a firearm is a category IV lesser included offense of kidnapping with a firearm. We agree.

In Brown v. State, 206 So.2d 377 (Fla.1968), the Supreme Court defined four types of lesser included offenses. Category IV encompasses those which may or may not be included in the greater offense depending upon the allegations of the information and the proof at trial. To determine if an offense falls within category IV, one first looks at the information to determine if all essential elements of the lesser offense are charged. If these are present, the proof is then examined to see if it supports the allegations. Kimbrough v. State, 356 So.2d 1294 (Fla. 4th DCA 1978).

Here, Count I of the information charged that defendant:

[W]ithout lawful authority did then and there forcibly, secretly, or by threat, confine, abduct, or imprison another person, to wit: . . . , against [his] will, with the intent to inflict bodily harm upon or to terrorize the victim or any other person and while perpetrating or attempting to perpetrate the offense had in his possession a firearm or destructive device, to wit: a shotgun, .

This count charges all elements of aggravated assault: an intentional threat to do violence, the apparent ability to harm, and the use of a deadly weapon. The proof showed that appellant confined his victim by threatening him with a loaded shotgun. The allegations and the proof here combine to make aggravated assault with a firearm a lesser included offense of kidnapping with a firearm. Separate sentences are therefore precluded by § 775.021(4), Fla.Stat. (1977).

Accordingly, James’ sentence for aggravated assault with a firearm is vacated and the cause remanded for correction. The defendant need not be present for such correction.

ERVIN and SHAW, JJ., and MELVIN, WOODROW, M. (Retired), Associate Judge, concur.


text:
    William David COMBS, Appellant, v. Beverly Renee COMBS, Appellee.
    No. PP-14.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1980.
    Stephen R. Heller, Jacksonville, for appellant.
    Brent D. Shore, Jacksonville, for appellee.
   PER CURIAM.

This is the appeal of an order denying modification of the appellant’s right to visitation and awarding the appellee $35.00 in attorney’s fees. The denial of the modification is affirmed. The award of the attorney’s fees, however, is not supported by the record. Accordingly, the award of attorney’s fees is reversed.

LARRY G. SMITH and SHIVERS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    Robert Clark WRIGHT, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. PP-247.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1980.
    Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

The judgment and sentence is affirmed except to the extent that the provision “at hard labor,” appearing in the terms of the sentence, is surplusage and is hereby stricken. Ussery v. State, 350 So.2d 839 (Fla. 1st DCA 1977).

ROBERT P. SMITH, Jr. and SHIVERS, JJ., and ERNEST E. MASON (Ret.), Associate Judge, concur.


text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION; DIVISION OF RISK MANAGEMENT, Appellants/Cross-Appellees, v. Wesley MATTHEWS, Appellee/Cross-Appellant.
    No. PP-417.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1980.

      Jon D. White, Pensacola, for appellants/cross-appellees.
    Norton Bond, Pensacola, for appel-lee/cross-appellant.
   PER CURIAM.

The carrier, in an attempt to recoup what it considered overpayment made as a result of the claimant’s receipt of social security benefits, reduced the claimant’s weekly compensation benefits. The Department of Transportation presents a timely appeal of the Deputy Commissioner's order directing reimbursement.

The deputy correctly determined that the Department could not retroactively reduce benefits because of the claimant’s receipt of lump sum social security benefits. He erred, however, in allowing recoupment of excess payments made by the carrier after the commencement of social security benefits but prior to the Department’s election to take appropriate weekly deductions. The order is accordingly reversed as to the issues raised in Points 2 and 3. Florida Power & Light Co. v. Adkins, 377 So.2d 57 (Fla. 1st DCA 1979) and Department of Transportation v. Lindsey, 383 So.2d 956 (Fla.App.1980). The cause is remanded to the deputy for the entry of an order that comports with the Adkins and Lindsey decisions.

LARRY G. SMITH and SHAW, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    MUNFORD, INC., Appellant, v. Diane NICHOLSON, Appellee.
    No. QQ-470.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1980.
    Jeffrey C. Bassett of Barron, Redding, Boggs, Hughes & Fite, Panama City, for appellant.
    James F. McKenzie of Myrick & McKenzie, P. A., Pensacola, for appellee.
   PER CURIAM.

The order is affirmed except as to the award of interest to which the appellee confesses error. Paragraph C. of the decre-tal portion of the order is accordingly stricken and the cause is remanded to the Judge of Industrial Claims with directions that he reconsidered his award of interest in light of § 440.20(7), Florida Statutes.

LARRY G. SMITH, and SHAW, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    Sandra K. CULLIMORE, Appellant, v. BARNETT BANK OF JACKSONVILLE, a banking institution, Appellee.
    No. TT-484.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1980.
    David R. Lewis of Lewis, Paul, Isaac & Castillo, P. A., Jacksonville, for appellant.
    Leo O. Myers, George L. Hudspeth of Mahoney, Hadlow & Adams, Jacksonville, for appellee.
   MILLS, Chief Judge.

Barnett Bank of Jacksonville filed a complaint for foreclosure against Sandra K. Cullimore. Process was served by a deputy sheriff who went to Cullimore’s apparent residence, identified herself, read the summons and complaint in a loud voice, and then tacked the summons to the door. Cul-limore filed a motion to quash service, urging that service was improper pursuant to 48.031, Florida Statutes (1979).

At the hearing on the motion the deputy testified that she had tried to effect service on several occasions and had left cards asking Cullimore to call her, but received no calls. She testified that she talked with neighbors and they verified that Cullimore lived at that home. Cullimore objected to the testimony concerning what the neighbors had said as hearsay.

When she went to the home on the day in question to make service, she called the dispatcher to run a check on the license tag of the car parked in the carport and the dispatcher said that the car was registered in Cullimore’s name. Cullimore objected to the content of the dispatcher’s communication as hearsay. The deputy further stated that she heard noises inside the home which ceased when she knocked on the door and no one came to the door. She then radioed the dispatcher to telephone Cullimore and testified that the dispatcher radioed back and said that he had called and had talked to Cullimore who identified herself and said she would not answer the door because she was too busy. The deputy testified that the dispatcher said he had informed Cullimore that there was a police officer at the door. This was the third piece of hearsay evidence objected to by Cullimore.

Having received that communication from the dispatcher, the deputy went back to the door and delivered the summons in the manner noted above. The deputy stated that she was satisfied in her own mind that Cullimore was at homa

Before discussing the law applicable to the above facts, we note that counsel have not favored the court with a statement of the issues presented for review, Rule 9.210(b), Fla.R.App.P.; but we glean from the arguments in the briefs that they are: (1)should the hearsay testimony have been excluded, and (2) if it should have been excluded, was the admissible testimony sufficient evidence to support the trial court’s determination that process was properly served?

Appellee Barnett Bank contends that there are two exceptions to the hearsay rule that are applicable. The first is that a statement is not hearsay if it is a statement of identification of a person made after perceiving him. Section 90.801(2)(c), Florida Statutes (1979). The second is that a report made during the course of a regularly conducted business activity is admissible. Sections 90.803(6) and 90.803(8), Florida Statutes (1979).

The statement of identification exception is inapplicable because the direct evidence here establishes that the deputy never saw or spoke to Cullimore and that exception requires that the declarant testify at the trial or hearing. Only the dispatcher is alleged to have talked with Cullimore for purposes of identification and he did not testify.

The business records exception is likewise inapplicable because there were no records or reports offered into evidence; there was only testimony concerning communications made between the dispatcher and the deputy. Accordingly, we conclude that the hearsay testimony should have been excluded.

Turning to the issue of the sufficiency of admissible evidence, we point out that Section 48.031, Florida Statutes (1979), requires that original process be served on the party personally or by leaving copies of the complaint “at his usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.”

In Haney v. Olin Corporation, 245 So.2d 671 (Fla. 4th DCA 1971), service was found to be proper where the sheriff saw the defendant before the defendant fled to his house and slammed the door. There, the sheriff went up to the house, knocked on the door, rang the doorbell, identified himself in a loud voice, announced his purpose, and then read the summons and complaint aloud and left a copy on the front steps. Here, there was no initial identification of Cullimore.

The deputy did testify that she heard noises inside the house, but there is no evidence that she knew those noises were made by a person, let alone that they were made by a person 15 years of age or older.

The facts in Dowd Shipping, Inc. v. Lee, 354 So.2d 1252 (Fla. 4th DCA 1978), are similar to those here, but distinguishable. There, after the sheriff could not get a response at the designated house, he personally telephoned and established that the defendant was present in that house before returning to read the summons in a loud voice and tacking it to the door. Unfortunately, the facts in this case are that the deputy had the dispatcher place the call and report back.

Once the content of what the dispatcher reported is excluded as hearsay, all that is left in evidence is that a call was made. This is, of course, insufficient evidence of the facts that are required to be established under the statute.

REVERSED and REMANDED.

McCORD and WENTWORTH, JJ., concur.


text:
    Robert E. KUENSTLER, Jr., Appellant, v. Arland M. ANDREASEN, Appellee.
    No. UU-91.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1980.
    Robert E. Kuenstler, Jr. pro se.
    Herman D. Laramore, Marianna, for ap-pellee.
   ORDER RELATING TO RECORD ON APPEAL

PER CURIAM.

This is an appeal from a final order determining a dispute as to possession and title to certain real property in favor of Appellee (Defendant and Counter-Plaintiff below). No report or transcript of the trial proceedings was made, for neither party secured the attendance of a court reporter at trial. Appellant thus prepared and served upon Appellee a substitute statement of the proceedings. Appellee did not serve any objection or proposed amendments thereto; however, he did move to strike the document on the ground that he had not certified it. Appellant then filed with the trial court a motion to settle and approve his statement of the proceedings without amendment. Appellant’s motion was denied by the trial judge, who ruled that he could not sufficiently recall the proceedings to approve or reconstruct a record thereof. Appellant now moves the court to recognize his statement of the proceedings as if it had been settled and approved pursuant to Florida Rule of Appellate Procedure 9.200(b)(3). He moves, in the alternative, that the Court direct Appellee to review the document and submit any objections or proposed amendments thereto to the trial court for settlement of differences and ultimate approval in accordance with the above-cited Rule.

We are of the view that the ends of justice will be better served by a second attempt to reconstruct a record of the trial proceedings. There is no requirement in the above-cited Rule that Appellee certify Appellant’s statement of the proceedings prior to its approval by the trial court and subsequent inclusion in the record. Rather, we think the cited Rule requires Appellee to make specific objections and proposed amendments (if he has any) going to the factual basis of Appellant’s document. Such a requirement is consonant with Ap-pellee’s duty to assist in the preparation of the record and thus insure that the appeal be decided on its merits. The trial judge should then act as arbiter of any factual dispute between the parties. In remanding this cause, we are not unmindful of the trial judge’s professed inability to recall the proceedings, and he may or may not have sufficient recollection to settle specific disputes as to objections or proposed amendments filed by Appellee. Such is unknown at this point, however, because Appellee has not complied with the Rule. A second attempt should be made to reconstruct the record of the trial proceedings which substantially complies with Florida Rule of Appellate Procedure 9.200(b)(3).

Accordingly, for the reasons expressed above, this Court remands jurisdiction in this cause to the trial court with directions that Appellee be required to file specific objections and proposed amendments (if any) to Appellant’s statement of the proceedings and then for the trial court to take such further measures as are necessary and proper in accordance with Florida Rule of Appellate Procedure 9.200(b)(3).

McCORD, SHIVERS and WENT-WORTH, JJ., concur.

      . Florida Rule of Appellate Procedure 9.200(b)(3):
      If no report of the proceedings was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within 10 days of service. Thereafter the statement and any objections or proposed amendments shall be submitted to the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.


author: EVANS, VERNON W., Jr., Associate Judge.

text:
    FLORIDA POWER CORPORATION, a Florida Corporation, Appellant, v. ADVANCE MOBILE HOMES, INC., a Florida Corporation, Appellee.
    No. 79-173.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 1980.

      Darryl M. Bloodworth, Sylvia H. Walbolt, and J. Brent Walker of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Orlando and Tampa, for appellant.
    Jack B. Nichols and Harold L. Downing of Nichols & Associates, P. A., Orlando, for appellee.
   EVANS, VERNON W., Jr., Associate Judge.

Appellant, Florida Power Corporation, has presented several points on appeal. In its first point, appellant contends that the action in the lower court was premature in that the appellee had failed to exhaust its administrative remedies before initiating the action.

The dispute between the appellant-utility and the appellee-customer arose out of conversations between representatives of the two companies in 1973 concerning future underground electrical installations at ap-pellee’s mobile home park. It was not until 1976 that appellee had substantially completed its expansion and at that time a dispute arose as to whether the appellant-utility was required to make a complete underground installation at once in what was called Phase II of the mobile home park or whether it was required only to make the installations in increments to the extent necessary for the foreseeable future and what the charges would be, if any, for such underground installation. The appel-lee brought this suit claiming a breach of contract allegedly arising out of the 1973 conversations. One of the appellant’s affirmative defenses dealt with the failure of the appellee to exhaust its administrative remedies before initiating the action and consequently in the litigation the appellant sought a summary judgment and later a directed verdict at the trial on this defense. The lower court denied both motions and submitted the issues to the jury and the jury returned a verdict in favor of the appellee for $456,000.00. Appellant’s post-trial motions were denied and this appeal ensued. The appellee has not at any time, either in the court below or here, contended that it had exhausted its administrative remedies, but rather its position has been that it was under no legal obligation to do so.

The Florida Public Service Commission has been given exclusive jurisdiction to regulate the public utilities of this state. Ch. 366, Fla.Stat. (1979). Storey v. Mayo, 217 So.2d 304 (Fla.1968). The Commission has been given comprehensive and exclusive jurisdiction to both regulate the public utilities, and, through its rules to set forth extensive procedures to be followed in resolving the very dispute which started this litigation. For example, Chapter 25-26 of the Florida Administrative Code deals with electrical utilities and applicants for service. Rule 25-26.83 deals specifically with electrical underground extensions, and the rule further provides that any disputes arising thereunder should be referred to and resolved by the Commission. Rates and charges for services or installations by utilities are without a doubt matters coming exclusively within the primary jurisdiction of the Commission. In Richter v. Florida Power Corp., 366 So.2d 798 (Fla. 2d DCA 1979) the court said: “We hold that the PSC does have exclusive jurisdiction to decide [whether the consumer was overcharged]. The PSC is best equipped to investigate the consumers’ allegations, and, if necessary, to establish the mechanism whereby refunds could be made . .

It has been consistently held that where an administrative remedy is provided by statute, relief must be sought by exhausting this remedy before the courts will act. Florida Welding and Erection Service, Inc. v. American Mutual Insurance Co. of Boston, 285 So.2d 386 (Fla.1973). Oldham v. Foremost Dairies, Inc., 128 So.2d 568 (Fla.1961); Kaufman v. Machiedo, 357 So.2d 793 (Fla. 3d DCA-1978) cert. denied, 364 So.2d 888 (Fla.1978); Atlantic Gas Corp. v. REC Centers, Inc., 305 So.2d 791 (Fla. 4th DCA 1975); Pushkin v. Lombard, 279 So.2d 79 (Fla. 3d DCA 1973), cert. denied, 284 So.2d 396 (Fla.1973).

Upon a review of the record on appeal and after consideration of the briefs and oral arguments of counsel, we are convinced that the appellee-plaintiff failed to exhaust administrative remedies before initiating this action and therefore the trial court erred in denying both the appellant’s motion for summary judgment and motion for directed verdict made upon the trial of the case.

In the light of this holding, the remaining points on appeal and cross-appeal require no determination.

Accordingly this cause is reversed and remanded to the trial court with directions to enter an order of dismissal.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . Rule 25-26.83 of the Florida Administrative Code: “When the application of these rules appears impracticable or unjust to either party, or discriminatory to other customers, the utility or applicant shall refer the matter to the Corn-mission for special ruling or for the approval of special conditions which may be mutually agreed upon prior to commencing construction.”


author: SHARP, Judge.

text:
    Walter FRITZ, Sam Upington and Boyle Engineering Corporation, Petitioners, v. NORFLOR CONSTRUCTION COMPANY, Respondent.
    No. 80-299.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 1980.

      Hugh M. Palmer of Bull & Palmer, Orlando, for petitioners.
    Ronald W. Sikes of Welbaum, Zook, Jones & Williams, Orlando, for respondent.
   SHARP, Judge.

Walter Fritz and Sam Upington, employees of Boyle Engineering Corporation, and Boyle Engineering Corporation apply to this court for issuance of a writ of certiorari to review the lower court’s order and sub-poenaes requiring them to produce certain documents prepared by the corporation and currently in its custody. We grant the petition for writ of certiorari because Boyle, Fritz and Upington are not parties to the law suit, and the subpoena and order are not limited to production of documents and Fritz and Upington’s possession or control.

Norflor Construction Corporation filed a petition for writ of mandamus pursuant to Chapter 119, Florida Statutes (1979) against the City of Winter Garden to obtain inspection of records concerning the Winter Garden Wastewater Treatment Facility being constructed by Norflor. Section 119.-07(l)(a) provides in part:

Every person who has custody of public records shall permit the records to be inspected and examined by any person desiring to do so, at reasonable times, under reasonable conditions, and under supervision by the custodian of the, records or his designee.

Norflor claimed the City failed to make , available for its inspection all of the records prepared by Boyle Engineering, as the City engineer, pertaining to the treatment facility-

The lower court found that the City failed to make all of the public records pertaining to the treatment plant available to Norflor for inspection. Such documents included: “any correspondence from the Environmental Protection Agency, daily diaries, photographs, estimates of project costs, design calculations, design documents, daily reports, monthly reports to the Environmental Protection Agency, inter-office memoranda regarding the subject property and any other such memoranda just to the file.” It also found that Boyle was an “agency” of the city for purposes of these ' proceedings. Pursuant to the court’s judgment the City produced the balance of the requested records in its possession.

In an effort to obtain inspection of records not in the City’s possession and control, Norflor served Fritz and Upington with subpoenaes duces tecum requiring them to appeal at depositions and bring with them for inspection an extensive list of records, memoranda, and reports “in the possession of Boyle Engineering Corporation” concerning the treatment facility. Fritz and Up-ington filed objections on the grounds that they are not parties to the mandamus suit, and they are not the custodians of the Boyle Engineering documents listed in the sub-poenaes. The court then ordered Fritz and Upington to submit to the depositions and to produce the listed documents. Dorothy Russell, a secretary employed by Boyle Engineering, was also served with a similar subpoena duces tecum.

We have certiorari jurisdiction because Fritz and Upington are not parties to the mandamus proceeding, and they have no method of relief available to them through appeal. In requiring Fritz and Up-ington to produce records and documents of Boyle Engineering, which are not in their possession or under their control, the lower court’s order departed from the essential requirements of law. In Re Dahl’s Estate, 125 So.2d 332 (Fla.2d DCA 1960); Gay v. City of Gainesville, 186 So.2d 41 (Fla. 1st DCA 1966); Ormond Beach First National Bank v. Montgomery Roofing Company, 189 So.2d 239 (Fla. 1st DCA 1966), cert. denied 200 So.2d 813 (Fla.1967). The order and subpoena should only require production of documents which the deponent has in his possession, or which are under his control and supervision.

The petitioners also contend that the order and subpoena depart from the essential requirements of law because Norflor is seeking to enforce its rights against persons who are not parties to the mandamus action. Because the petitioner successfully established a right to inspect public documents in the possession of the City of Winter Garden does not subject the rest of the populace of Orange County to compulsory disclosure of records under Chapter 119. We agree with the lower court’s determination that Boyle is an “agency” under section 119.011(2) insofar as it performed services for the City as the City Engineer, relating to the treatment plant. It could therefore be required to disclose any “public records” it may have in a proper proceeding. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So.2d 633 (Fla. 1980). However, Norflor should first request Boyle to allow it to inspect the records. If Boyle refuses, then, Boyle could be made a party to the mandamus suit, or a new petition could be filed against it. In such a proceeding, Boyle should be permitted to challenge whether or not the matters and records sought constitute “public records”, or whether some items are “preliminary materials” and thus not subject to forced disclosure under Ch. 119.

To be contrasted with ‘public records’ are materials prepared as drafts or notes, which constitute mere precursors of governmental ‘records’ and are not, in themselves, intended as final evidence of the knowledge to be recorded. Matters which obviously would not be public records are rough drafts, notes to be used in preparing some other documentary material, and tapes or notes taken by a secretary as dictation. Inter-office memoran-da and intra-office memoranda communicating information from one public employee to another or merely prepared for filing, even though not a part of an agency’s later, formal public product, would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business.

379 So.2d at 640.

As the Supreme Court points out in the Shevin case, it may be necessary to determine the nature of the material which falls in the middle of the “public” versus “nonpublic” records spectrum on a “case by case” basis, after an-m camera inspection by the circuit judge.

In the context of a proceeding naming Boyle as a party, Boyle’s rights and those of its employees can be properly dealt with. The finding that Boyle is an “agency” within the meaning of Chapter 119, and thus subject to the disclosure act, does not dispense with the necessity to treat Boyle as a separate and distinct party to the mandamus proceeding. See State ex rel. Boulevard Mortgage Company v. Thompson, 113 Fla. 419, 151 So. 704 (1933); Leonard Bros. Transfer & Storage Co. v. Carter, 127 Fla. 198,172 So. 924 (1937); State ex rel. Franklin County v. Lee, 137 Fla. 658, 188 So. 775 (1939).

REVERSED and REMANDED.

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

      . Chapter 119, defines “public records” as: “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” § 119.-011(1), Fla.Stat. (1979).

      . “Agency” is defined as: “any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.” § 119.011(2), Fla.Stat. (1979).

      . § 119.07, Fla.Stat. (1979).


author: SCHEB, Chief Judge.

text:
    C. Wesley KENT, III, Appellant, v. The CONNECTICUT BANK AND TRUST COMPANY, N. A., a National Banking Association, Appellee.
    No. 80-11.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 1980.
    Eric S. Ruff and James V. Stewart of Law Offices of William Randolph Klein, Sarasota, for appellant.
    Harry W. Haskins and Gregory W. Hoot-man of Dickinson, O’Riorden, Shields & Carlton, Sarasota, for appellee.
   SCHEB, Chief Judge.

C. Wesley Kent, III, appeals from the trial court’s final order dismissing his complaint seeking damages for alleged defamation by the Connecticut Bank and Trust Company. We hold that the court erred in dismissing Counts II and IV of that complaint.

In Kent’s second amended complaint he alleged that the Bank wrongfully and negligently filed a suit in circuit court charging that he was delinquent by $2,227.67 on his credit card account. Kent stated that the circuit court was without subject matter jurisdiction because the amount claimed by the Bank was less than $2,500. Subsequently, the Bank voluntarily dismissed its suit.

Kent also alleged that the Bank’s attorney, within the scope of his employment, communicated by telephone with Kent’s employer and falsely, wilfully and wantonly told the employer that Kent was a delinquent debtor. Kent contended that the Bank’s suit, attendant newspaper publicity and the false statements the Bank made to his employer were defamatory. He alleged that they caused him to suffer embarrassment, loss of his business reputation, and loss of his position as a trust officer with a Sarasota bank, together with the retirement pension he would eventually have received.

In Count II of his second amended complaint, Kent sought compensatory damages for the alleged slanderous statements the Bank made in the telephone conversation with his employer. In Count IV he repeated some of the allegations of the prior counts, but sought punitive as well as compensatory damages. The Bank moved to dismiss Kent’s second amended complaint on the ground that the alleged publications were absolutely privileged as part of a judicial proceeding. The trial court granted the motion and dismissed the complaint with prejudice. Kent filed this appeal.

In Count II Kent alleged that the Bank’s attorney wilfully and wantonly made defamatory statements concerning him in a telephone conversation with his employer. The Bank, however, contends that any defamatory statements made by its attorney to Kent’s employer were absolutely privileged because they were relevant to the subject matter of the suit it had filed against Kent. Had the statements been made in the course of a judicial proceeding and relevant to the subject matter of that proceeding, the Bank would be correct. Budd v. J. Y. Cooch Co., 157 Fla. 716, 27 So.2d 72 (1946); Matthews v. State, 359 So.2d 18 (Fla. 2d DCA 1978). Kent alleged, however, that the circuit court in which the Bank filed its suit was without subject matter jurisdiction because the claim was for less than $2,500. Art. V, § 5(b), Fla.Const.; §§ 26.012(2)(a), 34.01(1), Fla.Stat. (1977). We assume that the Bank filed its suit in the circuit court in good faith on the basis that attorney’s fees which it sought would be included in the jurisdictional amount. They are not, however. § 34.01(1), id.

Had the Bank properly filed the suit in county court, all relevant statements in the course of that proceeding would have been absolutely privileged. However, we choose to follow the majority view of the few states which have considered the question. The courts in these states have concluded that if the court in which a case is filed has no jurisdiction, then the proceeding is not judicial and no absolute privilege attaches to statements made in the course of the proceeding, irrespective of the good faith of the party in filing the suit. See Sowder v. Nolan, 125 A.2d 52 (D.C.1956); Parker v. Kirkland, 298 Ill.App. 340, 18 N.E.2d 709 (1939); Di Blasio v. Kolodner, 233 Md. 512, 197 A.2d 245 (1964); Hager v. Major, 353 Mo. 1166, 186 S.W.2d 564 (1945); Annot., 158 A.L.R. 592 (1945); contra, Runge v. Franklin, 72 Tex. 585, 10 S.W. 721 (1889). These cases generally involved quasi-judicial proceedings where it was not always clear whether the administrative body involved had jurisdiction. Nevertheless, we think the majority rule to be sound because otherwise the slandered party might have no opportunity to clear himself. Consequently, accepting the allegations of Kent’s complaint as true, the circuit court did not have subject matter jurisdiction of the Bank’s suit. Therefore, its suit did not constitute a judicial proceeding and was not privileged. Hence, the trial court erred in dismissing Count II.

Count IV, as noted, repeats some of the allegations of the prior counts, and adds a prayer for punitive damages. Kent pled malice in Count II and, consequently, properly pled his case for punitive damages. See Matthews v. DeLand State Bank, 334 So.2d 164 (Fla. 1st DCA 1976). The court, therefore, improperly dismissed Count IV.

We find no merit in the contention that the court erred in dismissing Counts I and III. Hence, we affirm the trial court’s dismissal of those counts. We reverse, however, as to its dismissal of Counts II and IV. We remand for further proceedings consistent with this opinion.

GRIMES and DANAHY, JJ., concur.

      . Those allegations of Counts I and III incorporated in Counts II and IV remain viable as allegations of the reinstated counts.


text:
    Patricia HALL, Appellant, v. Andrew C. HALL, Appellee.
    No. 86-1473.
    District Court of Appeal of Florida, Third District.
    Aug. 26, 1980.
    Melvyn B. Frumkes, Marsha B. Elser, Miami, for appellant.
    Barranco, Darlson, Daniel & Bluestein, Miami, for appellee.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Upon the appellee’s confession that the trial court’s order changing temporary custody of the parties’ minor children from the appellant to the appellee was made without adequate notice, in the absence of the appellant being represented, and upon inadequate testimony, the trial court’s order rendered June 13, 1980, is vacated and the cause remanded for further proceedings.


author: BERANEK, Judge.

text:
    Daniel Patrick GAINEY, Appellant, v. STATE of Florida, Appellee.
    No. 79-1462.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.
    Richard L. Jorandby, Public Defender, and Martin Colin, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appealed, contesting the denial of his motion to suppress certain physical evidence obtained at the time of his arrest. After denial of his motion to suppress, the defendant entered a plea of nolo contendere reserving his right to appeal the court’s ruling on suppression. We have reviewed the entire record and the briefs of the parties and seriously question whether the ruling on the motion to suppress is dispositive of the case. Since an appeal by a defendant in an Ashby nolo plea situation is allowable only if the issue raised is dispositive, we relinquish jurisdiction to the trial court for a period of forty days with directions to determine whether the ruling on the motion to suppress was dispositive. Brown v. State, 376 So.2d 382 (Fla.1979); State v. Ashby, 245 So.2d 225 (Fla.1971). The trial court is requested to enter an order on this issue. Thereafter, it shall be appellant’s responsibility to supplement the record by filing a certified copy of the court’s order and advising this court in writing of the necessity of our resuming jurisdiction for the purpose of deciding the appeal. See Gray v. State, 379 So.2d 435 (FLa. 2d DCA 1980).

JURISDICTION RELINQUISHED FOR STATED PURPOSE.

LETTS, C. J., and GLICKSTEIN, J., concur.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Michael A. ROBERTSON.
    No. 65957.
    Supreme Court of Louisiana.
    March 3, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-respondent.
    Paul L. Katz, Orleans Indigent Defender Program, New Orleans, for defendant-relator.
   MARCUS, Justice.

Michael A. Robertson was charged in separate bills of information with armed robbery in violation of La.R.S. 14:64 (No. 271-816) and receiving stolen things in violation of La.R.S. 14:69 (No. 271-823). Defendant entered pleas of not guilty to both informa-tions at the arraignment. After the trial judge denied certain pretrial motions, defendant withdrew his former plea of not guilty to the information charging him with armed robbery and entered a plea of guilty as charged (No. 271-816). The trial judge accepted the guilty plea and ordered a pre-sentence investigation. Subsequently, defendant was sentenced to serve twenty years at hard labor.

Defendant filed a motion to quash the information charging him with receiving stolen things (No. 271-823) claiming that the prosecution for this offense violated his right not to be twice placed in jeopardy for the same offence., The trial judge denied the motion. Upon defendant’s application, we granted certiorari under our supervisory jurisdiction to review the correctness of this ruling.

The information charging defendant with receiving stolen things states in pertinent part that defendant did procure, receive and conceal a thing of value, to-wit: “A 1978 Ford T Bird of the value of Six Thousand ($6,000.00) Dollars . . . belonging to Patricia Rico . . . which said thing of value had been theretofore the subject of a theft, under circumstances which indicate” that defendant “knew, and had good reason to believe, . . . was the subject of a theft.” The information charging defendant with armed robbery set forth in pertinent part that defendant “while armed with a dangerous weapon, to-wit: a pistol, robbed one Patricia Rico of Six Thousand and Twenty ($6,020.00) Dollars in property and lawful money.” Hence, the 1978 Ford T Bird valued at six thousand dollars which is the subject of the charge of receiving stolen things was part of the same property allegedly taken by defendant during the armed robbery to which charge defendant had previously pleaded guilty and was sentenced.

The issue before us is whether a defendant can be prosecuted for receiving stolen things, after having been convicted and sentenced for armed robbery, where the thing received and the object of the theft in the armed robbery are the same. We think not.

Armed robbery, for which defendant was previously convicted, is defined as

the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

La.R.S. 14:64. Theft, one of the elements of armed robbery, is defined as

the misappropriation of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

La.R.S. 14:67. In the instant case, defendant is charged with receiving stolen things, which is defined as

the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had reason to believe that the thing was the subject of one of these offenses.

La.R.S. 14:69.

La.Code Crim.P. art. 482(A) provides:

An indictment for theft may also contain a count for receiving stolen things, and the defendant may be convicted of either offense. Where two or more persons are jointly indicted for these offenses, any or all of the persons indicted may be found guilty of either of the offenses charged. The district attorney shall not be required to elect between the two offenses charged.

Official Revision Comment (a) to the above article provides:

This article, following Art. 246 of the 1928 Code of Criminal Procedure, ‘provides for a situation where the state is frequently in justifiable doubt as to which crime will be established by the evidence adduced at the trial. A receiver of stolen things (R.S. 14:69) will be guilty of theft (R.S. 14:67), rather than receiving, if it develops that he procured or in any way participated in the stealing of the goods. This article authorizes the charging of these distinct crimes in separate counts. It is for the jury to determine which charge is supported by the evidence; therefore, the article expressly states that the prosecuting officer shall not be required to elect between the two offenses charged.

In State v. Williams, 359 So.2d 115 (La.1978), we held that in a prosecution under an indictment charging both theft and receiving stolen goods, the defendant may be convicted of either theft or receiving stolen things, but not both.

In the instant case, defendant was not charged in the same indictment with both theft and receiving stolen things. Rather, defendant was convicted of armed robbery which includes theft as an essential element thereof and is now charged in a separate information with receiving stolen things; the object of the theft in the armed robbery conviction and the thing received in the receiving stolen things charge are the same.

In enacting art. 482(A), the legislature was concerned about the dilemma faced by the prosecutor in cases where he could not be certain prior to trial whether defendant had stolen the goods or had merely received them. If the prosecutor elected to charge defendant with theft and at trial proved receiving stolen things but not theft, the defendant would be immune by virtue of his double jeopardy rights from prosecution for receiving stolen things. Conversely, had the prosecutor charged receiving stolen things and proved theft instead, the defendant could not subsequently be charged with theft. As the comment to art. 482 notes, the article “provides for a situation where the state is frequently in justifiable doubt as to which crime will be established by the evidence adduced at the trial.” By allowing these two offenses to be joined in the same indictment, the comment further states that the “prosecuting officer shall not be required to elect between the two offenses charged.” Rather, “[i]t is for the jury to determine which charge is supported by the evidence.”

For the same reasoning that caused the enactment of art. 482(A), we conclude that where a defendant is charged in separate indictments with theft, or a crime in which theft is an essential element thereof (e. g., armed robbery), and receiving stolen things, and the object of the theft and the thing received are the same, a defendant can be found guilty of either crime but not both. We are supported in this conclusion by the comment to art. 482 which states: “A receiver of stolen things (R.S. 14:69) will be guilty of theft (R.S. 14:67), rather than receiving, if it develops that he procured or in any way participated in the stealing of the goods.” (Emphasis added.) In other words, both charges cannot be supported by the same facts.

In the instant case, since defendant has been convicted of armed robbery, which includes theft as an essential element thereof, he cannot be convicted of receiving stolen things as a matter of law. Hence, the trial judge erred in denying defendant’s motion to quash the information. We must reverse.

DECREE

For the reasons assigned, the ruling of the trial court is reversed and set aside; defendant’s motion to quash the information charging him with receiving stolen things is sustained.

       Chief Judge Paul B. Landry, retired, participated in this decision as an Associate Justice Ad Hoc. ■

      . When the motion was filed, defendant had not yet been sentenced by the court on his plea of guilty to armed robbery (No. 271-816). La. Code Crim.P. art. 592 provides: “When a defendant pleads guilty, jeopardy begins when a valid sentence is imposed.” Accordingly, defendant’s claim of double jeopardy was premature as he had not been placed in jeopardy for the first time. However, defendant has since been sentenced on his plea of guilty to armed robbery; therefore, we will consider the claim of double jeopardy asserted in his motion to quash the information charging him with receiving stolen things.

      . 377 So.2d 844 (La. 1979).

      . In the factual situation where a defendant steals goods that were previously stolen and he knew or had reason to believe that they were stolen, his conduct could violate both crimes. However, in such a situation a defendant could not be convicted of both theft, or a crime in which theft is an essential element thereof, and receiving stolen things because we have held that a defendant cannot be twice punished for the same conduct. City of Baton Rouge v. Jackson, 310 So.2d 596 (La. 1975); State v. Didier, 262 La. 364, 263 So.2d 322 (1972); State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972).


author: DIXON, Justice DENNIS, Justice,

text:
    STATE of Louisiana v. August WALKER, Jr.
    No. 65459.
    Supreme Court of Louisiana.
    March 3, 1980.
   In Re: August Walker, Jr., Applying for Writs of Certiorari, Juvenile Court for the Parish of Jefferson, No. 48,225.

Treating defendant’s appeal to this Court as an application for writs and finding no merit in the assigned errors, the application is denied.

DIXON, J., would grant and assigns reasons.

CALOGERO, J., would grant.

DENNIS, J., would grant and assigns reasons.

DIXON, Justice

(dissenting).

I respectfully dissent.

This is a criminal prosecution for the violation of a criminal statute. Defendant was sentenced to six months in jail or to pay $750. He was entitled to counsel under Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) and Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). See Louisiana State Board of Medical Examiners v. Bates, 258 La. 1049, 249 So.2d 127 (1971), where we held that defendant in a contempt proceeding (for violation of an injunction) was entitled to trial by jury because the contempt was punishable by imprisonment for more than six months.

DENNIS, Justice,

dissenting.

I respectfully dissent and would hear the merits of August Walker’s plea that he will be illegally imprisoned without benefit of counsel in this civil contempt proceeding.

The majority finds that he is entitled to no relief from his imprisonment without counsel because it interprets Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) as requiring a person to have an attorney only when his liberty is deprived in a criminal proceeding. I disagree respectfully.

Four United States circuit courts of appeals have considered the exact issue raised in this case. Each has concluded that due process requires that the right of an indigent to appointed counsel “must be extended to a contempt proceeding, be it civil or criminal, where the defendant is faced with the prospect of imprisonment.” United States v. Anderson, 553 F.2d 1154, 1155 (1977); In re Di Bella, 518 F.2d 955, 959 (2nd Cir. 1975); In re Kilgo, 484 F.2d 1215 (4th Cir. 1973); Henkel v. Bradshaw, 483 F.2d 1386 (9th Cir. 1973); United States v. Sun Kung Kang, 468 F.2d 1368 (9th Cir. 1972). The Supreme Court in Argersinger v. Hamlin, supra, held that counsel must be provided for a defendant in any case where the accused may be imprisoned if found guilty. Although it is clear that this decision applies to criminal cases, Justice Douglas’s majority opinion, as well as the concurring opinions of Chief Justice Burger and Justice Powell, with whom Justice Rehnquist concurred, suggest that where a court action may result in a deprivation of liberty, due process requires that the person facing loss .of liberty be represented by counsel.

As the Court of Appeal in Anderson observed:

“Deprivation of liberty has the same effect on the confined person regardless of whether the proceeding is civil or criminal in nature. We agree with the decisions cited above and hold that the Constitution requires that counsel be appointed for indigent persons who may be confined pursuant to a finding of civil contempt. * * *”


text:
    Alan Dale STEADMAN v. Marie M. STEADMAN.
    No. 66780.
    Supreme Court of Louisiana.
    March 28, 1980.
   Boris F. Navratil, of Breazeale, Sachse & Wilson, Baton Rouge, for applicant, Marie M. Steadman.

In re Marie M. Steadman, applying for Certiorari, or writ of Review, to the Court of Appeal, First Circuit, No. 12,929, Parish of East Baton Rouge.

Granted.


text:
    STATE of Louisiana v. Larry Joe PHILLIPS.
    No. 67536.
    Supreme Court of Louisiana.
    May 12, 1980.
   In Re: Richard B. Stricks, applying for Writs of Supervisory Review and for a Stay Order, Orleans Parish, No. 259-425 “D”.

Granted in part and denied in part. See order.

Granted in part and denied in part. The ruling that Stricks shall serve without compensation is reversed, until further proceedings put the matter at issue. Otherwise the writ is denied, reserving unto the relator whatever rights he may have to collect a fee.


author:
BLANCHE, Justice.
     WATSON, Justice,

text:
    Kathryn Lynn Roberts VON BECHMAN v. Franklin B. VON BECHMAN.
    No. 66327.
    Supreme Court of Louisiana.
    May 19, 1980.

      Donna W. Lee, Luse & Lee, Baton Rouge, for plaintiff-respondent.
    John C. Miller, Kantrow, Spaht, Weaver & Walter, Baton Rouge, for defendant-applicant.
   BLANCHE, Justice.

Plaintiff and defendant were married on November 19, 1977 in Birmingham, Alabama and, subsequently, moved to Baton Rouge, Louisiana. Less than one year later, Mrs. Von Bechman left the marital domicile. On October 17, 1978, she filed suit for separation from bed and board alleging cruel treatment by her husband of such a nature as to render further living together insupportable. The defendant reconvened seeking a separation based upon abandonment.

In her petition, Mrs. Von Bechman alleged cruel treatment in that her husband failed to engage in any conjugal relations with her. The evidence at trial, however, was that they had engaged in sexual intercourse about once each month, and that there was additional “sexual contact” on a more frequent basis. Although Mr. Von Bechman never refused to have sex with his wife and stated that when asked, he would try to accommodate her, both parties admitted that their sexual relations usually resulted from the advances of Mrs. Von Bech-man. Her testimony shows that she believed her marriage was empty and that she felt deprived of her husband’s love and affection. Based upon these facts, the trial judge granted a separation from bed and board in favor of the wife. The First Circuit Court of Appeal affirmed this ruling.

As noted by the court of appeal, cruelty, in any form which renders living together insupportable, is a proper legal ground for separation from bed and board. It has been held that a persistent refusal to engage in sexual union, in the absence of consent or sickness or grave fault may constitute cruel treatment within the meaning of C.C. art. 138(3). Phillpott v. Phillpott, 285 So.2d 570 (La.App. 4th Cir. 1973); Denbo v. Denbo, 345 So.2d 1257 (La.App. 1st Cir. 1977).

We are willing to continue the rule enunciated by these decisions, but decline to decide whether the frequency or infrequency of sexual activity between the parties to the marriage could constitute cruel treatment. Without knowledge of the many considerations between the parties upon which such a sensitive and delicate act may be dependent, we would regard any judgment we may have on this subject as arbitrary. In order to satisfy the requirements of this rule, Mrs. Von Bechman argues in brief that persistent failure to initiate sexual, or any physical, contact on the part of her husband amounted to a persistent failure and refusal to engage in the conjugal relationship. This argument lacks logic and is disproved by the fact that Mr. Von Bech-man did respond to his wife’s advances. The court of appeal noted that the wife herein may have expected something more from marriage than the mere acquiescence of a marital partner and thus, was unhappy and disappointed in the marriage, but we do not regard these unfulfilled expectations as grounds for a separation. Before the conduct complained of here can constitute cruel treatment within the meaning of C.C. art. 138(3), there must be a persistent and unjustified refusal to engage in sexual intercourse. We find the trial court erred in granting Mrs. Von Bechman a separation on these grounds.

Mr. Von Bechman, in reconvention, brought suit against Mrs. Von Bechman for separation based upon abandonment. Before a separation grounded upon abandonment may be granted, it must be proven that one of the parties withdrew from the marital domicile without lawful cause to do so, and that the withdrawing party has constantly refused to return. C.C. art. 143; Clary v. Clary, 341 So.2d 628 (La.App. 4th Cir. 1977); Chamblee v. Chamblee, 340 So.2d 378 (La.App. 4th Cir. 1976). For this reason, in order to obtain a separation grounded upon abandonment, a party cannot merely show that the spouse left the common dwelling and then rely upon the spouse’s failure to prove a case grounded upon fault. Bergeron v. Bergeron, 372 So.2d 731 (La.App. 4th Cir. 1979).

In the instant suit, the husband has failed to prove an essential element of abandonment, i. e. Mrs. Von Bechman’s constant refusal to return. The uncontradicted testimony of Mrs. Von Bechman was that although her husband was not pleased with her initial departure for financial reasons, he nevertheless told her that he was much happier once she had left. Further, both Mr. and Mrs. Von Bechman testified that he changed the locks on the family home approximately one month after Mrs. Von Bechman left. Mr. Von Bechman never requested that his wife return and testified that if she had offered to do so, he would only have been willing to sit down and discuss it with her.

Civil Code art. 145 provides that abandonment is to be proved as any other fact in a civil suit. Thus, from the actions and declarations of the parties, proof may be inferred that one spouse has constantly refused to return to the matrimonial domicile. However, no such inference is created here. The import of the testimony of both parties is that their remaining apart was by mutual consent and was based upon their recognition of the substantial problems with their relationship. For this reason, we are unable to conclude that Mrs. Von Bechman’s action constituted a constant refusal to return. Having failed to prove an essential element of abandonment, the husband’s re-conventional demand was properly dismissed by the trial court.

For the reasons assigned, the judgment of the trial court dismissing Mr. Von Bech-man’s suit is affirmed. The judgment in Mrs. Von Bechman’s suit is reversed and it is ordered that her suit will be dismissed.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

DIXON, C. J., concurs in part and dissents in part for reasons assigned by WATSON, J.

WATSON, J., concurs in part and dissents in part, assigning reasons.

WATSON, Justice,

concurring in part and dissenting in part:

The majority correctly holds that the trial court erred in granting the wife a separation on the contention of cruel treatment. However, in my view the majority is wrong in dismissing the husband’s suit for separation on the ground of abandonment. Unlike some of the other legal reasons for which a party may claim a separation in Louisiana, abandonment is relatively easy to prove or disprove; either the party left the matrimonial domicile without legal cause or did not.

There is no requirement, as the majority implies, that the abandoned party request that the other return to the matrimonial domicile. Once the abandonment occurs, the injured party may and often does take the position that the party who left is not welcome back.

The fact alluded to by the majority that Mr. Von Bechman stated, following his wife’s departure, that he was happier than before does not nullify the fact that she left. The reason (or lawful cause for leaving) advanced was his failure to initiate sexual activity. But the majority holds that Mr. Von Bechman was not required to be eager but only willing.

Therefore, under the facts of the present case Mr. Von Bechman is entitled to a separation.

I respectfully concur in part and dissent in part.

       Honorable Frederick S. Ellis participated in this decision as Associate Justice Ad Hoc.


text:
    Natchez Joseph MORICE, Jr. v. Liselotte Schroth MORICE.
    No. 67783.
    Supreme Court of Louisiana.
    June 16, 1980.
    Judgment of the Court of Appeal reversed, and judgment of the trial court reinstated.
    Robert G. Creely, Amato & Creely, Gret-na, for plaintiff-applicant.
    Richard J. McGinity, McGinity & McGinity, New Orleans, for defendant-respondent.
   PER CURIAM.

After the wife filed a suit for separation in Orleans Parish, the husband filed a suit for separation in Jefferson Parish. The wife made a general appearance in the Jefferson Parish suit before filing an exception of lis pendens, which was overruled because she had waived the objection. C.C.P. art. 925.

The wife then excepted to the Jefferson Parish court’s jurisdiction over the subject matter. The trial court overruled the exception, but on the husband’s application for supervisory writs the intermediate court reversed, citing State ex rel. Marston v. Marston, 67 So.2d 587 (La.1953), for the proposition that the court which first obtains jurisdiction over the subject matter retains it to the exclusion of all others.

We reverse and reinstate the judgment of the trial court.

The Marston case (decided before the adoption of the Code of Civil Procedure) did not involve an exception to the jurisdiction over the subject matter. That case involved a timely filed exception of lis pen-dens which had been overruled, and this court ordered that the exception be maintained, using the language relied on by the intermediate court in the present case.

In the present case both courts had jurisdiction over the subject matter, and neither suit was subject to dismissal because of lack of jurisdiction. The party filing first could have only obtained dismissal of the second suit by filing a timely exception of lis pen-dens, and the Marston case would have been controlling. However, since the defendant in the second suit did not file a timely exception of lis pendens, any plaintiff may continue the prosecution of any suit until rendition of the first final judgment, which shall be conclusive of all suits. C.C.P. art. 531.

Accordingly, the judgment of the court of appeal is reversed, and the judgment of the trial court is reinstated.

DENNIS, J., not participating.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Carey CORAN.
    No. 66489.
    Supreme Court of Louisiana.
    June 23, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Ma-moulides, Dist. Atty., Abbott J. Reeves, Stephen T. Wimberly, Asst. Dist. Attys., for plaintiff-relator.
    Phillip L. Kitchen, New Orleans, for defendant-respondent.
   CALOGERO, Justice.

We granted the state’s application for writs in this case to determine whether the district court erred in setting aside a bond forfeiture on the ground that the notice requirements of R.S. 15:85 had not been complied with. We now conclude that the trial court was correct. The writ is therefore recalled, and the judgment setting aside the forfeiture affirmed.

Carey Coran was arrested for possession of heroin with intent to distribute. On February 6, 1979 bond was set at $20,000. Cottonbelt Insurance Company, respondent herein, through its agent, a Mr. P. Altobel-lo, posted bond as surety on behalf of Cor-an. Coran failed to appear for arraignment on March 9, 1979. On March 14, 1979 a judgment was rendered against Coran as principal and Cottonbelt Insurance Company as surety, forfeiting the bond. On March 19, 1979 personal service of the notice of the bond forfeiture was purportedly made upon Cottonbelt at 213 So. White Street, New Orleans, Louisiana. No other service of notice of the judgment of forfeiture was made or attempted.

R.S. 15:85 provides the procedure for forfeiture of bonds in the district court. After a defendant fails to appear at the time fixed, and after the hearing of proper evidence including service or attempted service upon defendant and the surety, a judgment shall be entered decreeing the forfeiture of the bond against the defendant and his surety. Notice of the forfeiture must be mailed to the surety as follows:

“. . . After hearing the fact of such failure to appear in the court minutes, the clerk of court shall promptly mail notice of the forfeiture to the surety on the bond whose address is on the face thereof and shall execute an affidavit of the mailing and place it in the record. A copy of the notice also shall be mailed to the agent of the surety who posted the bond. Mailing the notice to the agent alone shall not constitute compliance with this Section. . . . ” R.S. 15:85.

At the hearing on the motion to set aside the bond forfeiture, Cottonbelt argued that the service of notice of forfeiture at 213 So. White Street was service at the office of, and therefore upon, the agent for the surety and not upon the surety itself as required by the statute. Cottonbelt argued that the address on the face of the bond for the surety was Suite 304, 10001 Lake Forest Boulevard, New Orleans and that the .address at which service was made, 213 So. White Street, was that of the agent for the surety.

As it appears in the record, the bond form proper bears only one address — 213 So. White Street. That address appears adjacent to the name of the agent for the surety, P. Altobello, and not on the line next to the entry “Cottonbelt Insurance.” That line is left blank. A power of attorney which was attached to the bond, however, and which authorizes the agent for Cottonbelt to act on its behalf is an executed printed form which bears the Lake Forest address. Cottonbelt argues that the power of attorney upon which the Lake Forest address appears was and is attached (stapled) to the front of the bond, and thus the Lake Forest address “is on the face thereof.” The state, on the other hand, contends that the only address which appears on the face of the bond is 213 So. White Street and that service at that address constitutes full compliance with R.S. 15:85.

Although the copy of the bond which appears in the state’s application for writs does not have the power of attorney attached, Cottonbelt in brief and in oral argument represents that the original of the bond in possession of the Clerk of Court for the Twenty-Fourth Judicial District Court has the power of attorney stapled to the front of the bond. The state effectively concedes that the original bond has the power of attorney stapled or attached to the front of the bond, for it does not deny that this is the case; rather the state makes arguments notwithstanding.

Under R.S. 15:85 the requirements for notice of a judgment of forfeiture of a bond are quite specific. Notice of the forfeiture must be sent to the surety whose address appears on the face of the bond and a copy of the notice must be sent to the agent of the surety who posted the bond. The statute specifically provides that notice to the agent alone shall not constitute compliance with the statute. The statute clearly contemplates the mailing of two notices of the forfeiture of the bond.

In the instant case the only notice of forfeiture of the bond was to the address which appeared near the bottom of the bond form adjacent to the name of the agent for the surety — 213 So. White Street. And while the address of Cottonbelt did not appear on the line adjacent to its name near the bottom of the bond form, the address of its home office was clearly evident on the power of attorney attached to the front of the bond. The fact that the address of the surety appeared only on the attached power of attorney and not on the bond form adjacent to its name does not excuse the state from complying with the requirement that both the surety and the agent be mailed notice of the forfeiture of the bond at the addresses which appear on its face.

Although not argued in its application for writs or in its brief, the state in oral argument contended that it did in fact serve the surety on the bond and not just its agent, for the power of attorney attached to the bond authorized the agent to act as surety. By virtue of the power of attorney, the agent was the surety on the bond, it contends.

This argument is without merit. The power of attorney attached to the bond only authorizes the agent to act for the surety in posting the bond; it does not make the agent the surety for purposes of the bond. The power of attorney specifically limits the agent to act on its “behalf” in posting appearance bonds. The distinction between an agent acting on behalf of a surety under a power of attorney and the surety itself is recognized in R.S. 15:85’s requirement that the surety as well as the agent on the bond be notified of a judgment forfeiting the bond and that notice to an agent alone is not sufficient.

Because notice of the bond forfeiture was not served upon the surety, Cottonbelt, whose address at Suite 304, 10001 Lake Forest Boulevard, New Orleans, Louisiana 70127 appears on the face of the bond, Cottonbelt’s motion to set aside the bond forfeiture was properly granted.

Decree

For the foregoing reasons the judgment of the district court setting aside the bond forfeiture is affirmed.

AFFIRMED.

      . The following is a facsimile of the bottom portion of the photostat of the bond as it appears in the record:
      “. . . and shall not depart' without the leave of the said Court, until the final trial and conviction or acquittal of the said Carey P. Coran and shall keep the peace in the meantime, then this recognizance to be void; otherwise to remain in full force and effect.

      .

      . We do not have to decide here what the law means, or how it applies, in the situation in which there does not appear on the face of the bond any address other than the agent’s.

      . The power of attorney provides that Cotton-belt “by these presents does make, constitute and appoint the below named agent its true and lawful Attorney-in-Fact for it and its name, place and stead, to execute, seal and deliver for and on its behalf and as its act and deed, as surety, a bail bond only. .