author: GRIMES, Chief Judge.

text:
    J. W. HAMM, Appellant, v. STATE of Florida, Appellee.
    No. 79-1093.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1980.
    Jack O. Johnson, Public Defender and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

The issue before us is whether a prisoner can collaterally attack the imposition of a long prison term as a condition of probation.

At a nonjury trial, the court found appellant guilty of possession of a firearm by a convicted felon and placed him on probation for fifteen years with the condition that he spend fourteen years in prison. Appellant did not file a timely appeal. Later, he filed a pro se motion pursuant to Florida Rule of Criminal Procedure 3.850 in which he complained of the propriety of the long prison term that the court had made a condition of his probation. The court denied the motion, and he now appeals that denial. Because of the potential impact of our decision on not only appellant but others who may be in a similar position, we requested briefs from the state and public defender.

In Olcott v. State, 378 So.2d 303 (Fla.2d DCA 1979), this court followed the lead of Shead v. State, 367 So.2d 264 (Fla.3d DCA 1979), and held that it was impermissible to impose six years in prison as a condition of fifteen years probation. However, Olcott was a direct appeal from the order of probation. Thus, in defending the denial of appellant’s motion, the state refers to the general principle that a defendant cannot raise those matters which he could have raised on appeal by a motion to vacate. Yanks v. State, 273 So.2d 401 (Fla.3d DCA 1973).

On the other hand, appellant points out that when the court placed him on probation the Third District Court of Appeal had not yet issued the Shead opinion and that as a consequence there were no appellate decisions in Florida which questioned the propriety of a long prison term as a condition of probation. He then cites cases for the proposition that a defendant can properly seek relief pursuant to a post-conviction motion when courts have made new law since the time of the trial and appeal. E. g., Lee v. State, 217 So.2d 861 (Fla.4th DCA 1969). Appellant’s argument is well taken provided that the error of which he complains is fundamental.

While attempting to determine whether a particular error is fundamental is often difficult, it has been said that fundamental error “goes to the foundation of the case or goes to the merits of the cause of action.” Sanford v. Rubin, 237 So.2d 134, 137 (Fla. 1970). The essence of our Olcott decision was that in the absence of legislative authority, a judge cannot impose a long mandatory jail term which precludes the potential for parole. Assuming the decision in Olcott was correct, we believe that the court’s use of a long prison term as a condition of probation was an error of fundamental dimension, and we think that it would be unacceptable to prevent appellant from obtaining Olcott’s benefits. Therefore, we hold that appellant’s motion made a prima facie showing of fundamental error for which he is entitled to consideration under Florida Rule of Criminal Procedure 3.850.

We reverse the denial of the motion to vacate and remand the case for an eviden-tiary hearing and such other proceedings as may be appropriate. Because we certified Olcott to the supreme court as a decision of great public interest, we will also certify this case on the same basis so that the supreme court will be in a position to set all of these related issues at rest.

BOARDMAN and RYDER, JJ., concur.

      . For a further discussion of what constitutes fundamental error, see Clark v. State, 336 So.2d 468 (Fla.2d DCA 1976).

      . We find strong support for our decision in the fact that the supreme court deemed an illegal sentence to be such a fundamental error that the court specifically included it in Rule 3.850 as a ground for relief. While a probation order is not technically a sentence, it is much like a sentence. It represents the punishment one receives for transgressing the laws of our state.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David GRYZIK and Donald Hood, Appellants, v. STATE of Florida, Appellee.
    Nos. NN-327, NN-328.
    District Court of Appeal of Florida, First District.
    March 4, 1980.
    Rehearing Denied April 2, 1980.

      Maurice Graham of Brimmell & Graham, Fort Lauderdale, for appellants.
    Jim ■ Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

Gryzik and Hood appeal their convictions for possession of marijuana contending that the trial court erred in denying their motions to suppress on numerous grounds, including the ground that Agricultural Inspector Leonard Pease was not authorized to stop the truck in which appellants were riding because Pease violated the prohibition against dual office holding and therefore, was not an agricultural inspector at the time of the stop since this office would have been vacated as a matter of law. Appellants also contend that there was an impermissible comment on silence and that there was no valid consent to the search. We affirm on all points.

On May 17, 1978, the appellants were stopped by Inspector Pease when the truck bypassed an agricultural inspection station. After receiving consent to inspect, Pease smelled the strong odor of marijuana and saw four large black plastic bags in the truck. After requesting appellants’ return to the station, the truck sped away and a chase ensued with Pease and a highway patrolman in pursuit. They apprehended appellants, searched the truck, and seized the contraband. At the suppression hearing, Pease testified that in March, 1978, after being commissioned as an agricultural inspection officer, he was also appointed part-time deputy sheriff.

First, appellants urge that the common law doctrine of incompatibility precludes Inspector Pease from holding the above offices simultaneously. However, we find the doctrine of incompatibility to be inapplicable here. The rule is:

Incompatibility exists “where in the established governmental scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation to another.” ... If the duties of the two offices are such that when “placed in one person they might disserve the public interests, or if the respective offices might or will conflict even on rare occasions, it is sufficient to declare them legally incompatible.”

O’Connor v. Calandrillo, 117 N.J.Super. 586, 285 A.2d 275, 277 (Super.Ct.Law Div.1971) affirmed, 121 N.J.Super. 135, 296 A.2d 326 (Super.Ct.App.Div.1972), cert. denied, 412 U.S. 940, 93 S.Ct. 2775, 37 L.Ed.2d 399 (1973). Upon careful review of the statutory duties and powers existing in each office, we fail to perceive any incompatibility.

Secondly, appellants argue that Article II, Section 5(a) of the Florida Constitution prohibits dual office holding. The constitutional provision reads in pertinent part: “No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein”.

Although Pease did not take the oath of office as deputy sheriff, we will assume that the appointment to the office of deputy sheriff triggers application of the constitutional prohibition. Ordinarily, acceptance of one office while holding another office results in a vacancy of the first office. In re Advisory Opinions to the Governor, 76 Fla. 417, 79 So. 874 (1918). The constitutional prohibition provides no sanction for its violation and it is apparent that the general rule was adopted from the generally accepted common law rule that by the acceptance of an incompatible office, the officeholder had made a binding election which ipso facto vacated the first office. E. g., O’Connor v. Calandrillo, supra, 285 A.2d at 278. Although Florida recognizes this rule, it appears Florida also recognizes that in such a situation the officer becomes a de facto officer as to the first office.

In State v. Byington, 168 So.2d 164 (Fla. 1st DCA 1964), affirmed 178 So.2d 1 (Fla.1965), an executor of a will challenged the county court judge’s jurisdiction to enter orders directed to the executor on the ground that the judge was disqualified to act because of a constitutional provision requiring automatic retirement at age seventy. Article V, § 17(1), Fla.Const. This court reasoned:

It is obvious, therefore, that if by virtue of the constitution he became disqualified, immediately upon his 70th birthday, to perform de facto as well as de jure any judicial function in the subject estate, that disqualification is general in character and invalidates all other acts performed by him as county judge since that date.
The writ of prohibition has a narrow scope of operation and may not be resorted to if other adequate remedies are available. .
Quo warranto is an appropriate and adequate remedy to determine the right of an individual to hold a public office. See 27 Fla.Jur., Quo Warranto, Sec. 17, and cases there cited. Where quo war-ranto is an adequate remedy, it is the only proper remedy and will preclude issuance of a writ of prohibition as a substitute. .
Prohibition goes only to the question of the lower court’s jurisdiction. It is available to prevent the exercise of jurisdiction where none exists and where the court exceeds its power. It is apparent here that even if the respondent as a county judge does fall within the automatic retirement provision of the Florida Constitution, such does not ipso facto impair the jurisdiction of his office or the validity of his exercise thereof. Affording relator’s position its greatest possible effect, the respondent’s status is changed only from that of a de jure judge to a de facto judge, which in no way impairs his jurisdiction. The official acts of a de facto judge are as valid as if he is an officer de jure. State ex rel. Hawthorne v. Wiseheart, 158 Fla. 267, 28 So.2d 589 (1946).
It will not be presumed that the attorney general will fail to perform his duty to bring an action of quo warranto if alerted and the circumstances warrant. It does not appear that he has been so requested herein or that the relator has sought permission to bring the action in his name. See 74 C.J.S. Quo Warranto § 4, p. 182.
We conclude, therefore, that prohibition does not lie upon the second basis suggested by the relator. Under the circumstances, it is unnecessary at this time to pass upon the question of the constitutional right of Judge Byington to continue in office subsequent to attaining the age of 70 years and we decline to do so.

168 So.2d at 174-175. The Supreme Court, entertaining jurisdiction because the decision initially construed a controlling provision of the Florida Constitution, affirmed this court’s decision stating that the “appellant has failed to demonstrate that the trial judge has exceeded or proposes to exceed his jurisdiction. Any order which he ultimately enters will be subject to appropriate review on the merits.” 178 So.2d at 1.

More specifically, in McGhee v. City of Frostproof, 289 So.2d 751 (Fla. 2d DCA 1974), a defendant sought to disqualify a presiding judge alleging that the judge was a dual officeholder under the constitutional prohibition at issue here. There, although the petitioner requested a grant of a writ of certiorari to decide whether the judge could lawfully hold two positions in a city government, the court found that “it is patent that appellant sought to review the actions of the city judge in failing to recuse herself upon timely motion therefor.” Accordingly, although the petition appeared to sound in quo warranto, the court noted that this remedy could be instituted only by the Attorney General or by a person claiming title to the office. The court addressed the applicability of other remedies:

As to prohibition, such writ only lies to prohibit a judicial or quasi-judicial officer from acting in excess of his jurisdiction. This isn’t the case here since, even if the allegations in the petition are true, the city judge would merely be a de facto judge rather than a de jure judge; and such fact would neither impair the jurisdiction of her office nor the validity of the exercise thereof, (footnote omitted)

289 So.2d at 752. The court declined to reach the merits, but rather reversed and remanded the case for further proceedings to permit the circuit judge to review the propriety of the city judge’s actions in failing to recuse herself.

Similarly, it is obvious that this proceeding does not in any way involve a direct attack upon Inspector Pease’s right to continue in either office. Rather, appellants seek a declaration that Pease was without jurisdiction to act an an agricultural inspector on May 17, 1978. Pursuant to the cases discussed herein, we have determined that even if Pease was in violation of the dual officeholding prohibition, he was acting within his jurisdiction when he carried out the duties of his office, i. e., stopping appellants for bypassing an agricultural inspection station. § 570.15, Fla. Stat. (1977). Moreover, the application of the above rule best serves the public interest and welfare which is the paramount factor in determining the effects of violating the constitutional prohibition which is in essence an expansion of the common law rule of incompatibility. Here we deem it appropriate that Pease’s right to continue in office be challenged directly by an ouster proceeding; it should not be determined in a collateral proceeding where the sole effect would be to suppress evidence in a criminal case.

In sum, if we were to recognize the validity of appellants’ claim, the public’s keen interest in having the laws of this state dutifully executed would be thwarted by a rule regarding the effect of Article II, Section 5, which, ironically, exists to preserve and protect a public interest unrelated to the interests of appellants in suppressing evidence in these collateral-type proceedings.

Accordingly, although we might speculate that Pease may have to vacate one of his positions in a proper proceeding, the constitutional provision requiring that result should not and will not be interpreted to require invalidation of Pease’s actions as an agricultural inspection officer, particularly when such actions occurred prior to any proper proceeding and when he was otherwise duly qualified to act under the laws of this state. The other points raised by the appellants do not require discussion.

AFFIRMED.

MILLS, C. J., and McCORD and BOOTH, JJ., concur.

      . The facts supporting the finding of consent are even more compelling than the facts in Bagocus v. State, 359 So.2d 885 (Fla. 1st DCA 1978), which found consent in an agricultural inspection case.

      . For examples of incompatibility see, Kaufman v. Pannuccio, 121 N.J.Super. 27, 295 A.2d 639 (Super.Ct.App.Div. 1972), certification denied, 62 N.J. 192, 299 A.2d 726 (Sup.Ct.1972) (involving city councilman and assistant tax assessor; city councilman and police lieutenant; incompatibility because councilmen could control budget and alter duties of the other offices); Fauci v. Lee, 38 Misc.2d 564, 237 N.Y.S.2d 469 (1963) affirmed, 19 A.D.2d 777, 242 N.Y.S.2d 630 (1963) (involving Police Justice and Family Court Judge, where such judge may be on the county court which may hear appeals from the police court decisions); Tucci v. Nyquist, 66 Misc.2d 808, 322 N.Y.S.2d 476 (1971) (involving member of Board of Education of a school district and office of member of Board of Trustees of a public library established and supported by the school district, problem concerned simultaneous representation of competing interests because the Board of Trustees was authorized to contract for library services with the school district); O’Connor v. Calandrillo, supra, (involving police sergeant and city commissioner; secretary of board of assessors and commissioner; advisor of veterans affairs and commissioner; incompatibility because the dual office holders would have full control over the affairs of the municipality in all phases of government, including salary and office qualifications).

      . This rule has been applied in a number of jurisdictions. See Annot., 100 A.L.R. 1162, 1187 (1936). See also, In Matter of F.C., 484 S.W.2d 21, 24 (Mo.App.1972), where, in discussing the common law rule of incompatibility, the court refused to invalidate the action of a juvenile officer, who filed a petition against a juvenile, based upon the grounds of incompatibility with his public office of prosecuting attorney. The court stated:
      [T]he surrender of the first office which is implied in the common law rule does not invalidate the acts of the occupant of the first office so far as third persons and the public are concerned, but that occupant becomes a de facto officer until ousted by proper process. .
      Thus even if validly applicable, the common law principle of incompatibility of offices does not vitiate judicial jurisdiction to proceed on a petition filed by a de facto juvenile officer acting under the color of section 211.081, V.A.M.S.

      . For example, O’Connor v. Calandrillo, supra, recognized the common law rule that acceptance of incompatible offices vacates the first office, but stated:
      This rule, however, should not be applied inalterably in all fact situations. The public interest and welfare should be the paramount and controlling factor. To declare the office of commissioner vacant in each instance would frustrate the public will expressed in the elective process and compel the incumbent to accept the lesser post to which he was appointed, without the approval of the voters of the community. If the three commission offices were declared vacant, the absence of an available quorum on the board would involve substantial confusion and expense brought about by the requisite interim appointment of commissioners by the Governor and a special election thereafter. . Such a result would appear to be an inappropriate subordination of reason to rule,
      Instead, the court ruled the second post vacated. See also, Kaufman v. Pannuccio, supra (where dual officeholder was given 30 days to elect either position).

      . We observe that there is no dispute concerning whether Inspector Pease was otherwise duly qualified to act as an agricultural inspection officer on May 17, 1978. Compare Holloway v. State, 342 So.2d 966 (Fla.1977), and cases cited therein. See also, § 570.151, Fla. Stat. (1975).


author: HUBBART, Judge. SCHWARTZ, Judge

text:
    Ricardo REDONDO, Appellant, v. The STATE of Florida, Appellee.
    No. 79-116.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.

      Henry R. Carr, Miami, and Peter Kutner, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   HUBBART, Judge.

The central issue presented for review is whether Fla.Std. Jury Instr. (Crim.) 2.11(d) (para. 10) on self defense [concerning the defendant’s lack of a duty to retreat when “unlawfully attacked in his own home or on his own premises”] applies in an aggravated battery and possessory firearm case when the defendant presents evidence at trial tending to show that he was assaulted with a deadly weapon while lawfully engaged in his occupation at a place of business owned by his employer. We hold that the above instruction lies in such a case and the failure to give same in this cause constitutes reversible error requiring a new trial as to both the battery and firearm convictions.

I

The facts pertinent to the above issue are as follows. The defendant Ricardo Redon-do who was charged in a two-count information with aggravated battery [§ 784.045, Fla.Stat. (1979)] and unlawful possession of a firearm while engaged in the commission of a felony [§ 790.07(2), Fla.Stat. (1979)], in the Circuit Court for the Eleventh Judicial Circuit of Florida. Upon the defendant’s plea of not guilty, the case was tried in the trial court before a jury. The evidence adduced at trial tended to show that on July 3, 1978, at approximately 11:00 p. m. the defendant was at work employed as a clerk in a U-Totem store in Miami, Florida. The defendant and his wife, who was also a U-Totem employee at the time, were stationed behind the counter of the store next to the cash register. The complainant Jeffery Jessup and his companion George DiNisco entered the store at that time to purchase some beer. After removing a six-pack of beer from the cooler, Jessup and DiNisco went to the check-out counter to pay for the intended purchase. The versions of the episode conflict at this point.

The defendant testified that Jessup became angry upon learning the price of the beer and began using some profane language in front of the defendant’s wife who had rung up the purchase. When asked to refrain from the use of such language, the defendant testified that Jessup picked up a bottle of beer from the six-pack on the counter, lifted it above his head and attempted to hit the defendant with it. Upon observing these actions, the defendant pulled out a gun from a bag under the cash register and shot Jessup in the chest.

Mr. Jessup testified at trial that while he was at the counter with his six-pack of beer, the defendant became very upset for some reason, that the defendant began waving a brown paper bag at Jessup trying to hit Jessup in the face, that the defendant put his hand in the bag which he was waving, that Jessup believed the defendant had a weapon in the bag and grabbed a bottle out of the six-pack on the counter to defend himself. At this point, Jessup testified that the defendant shot Jessup in the chest. Jessup admitted engaging in profanity at the counter but testified that he never had an opportunity to raise the bottle at the defendant. After the defendant had fired the gun, the defendant allegedly stated to Jessup, “I’m going to kill you.” Thereafter, Jessup stated that he ran out of the store.

Mr. DiNisco, complainant’s companion, testified that Jessup became angry at the counter when he realized what the price of the beer was, that DiNisco did not understand what Jessup said to the defendant and his wife, that thereafter he heard the defendant tell Jessup, “How dare you curse in front of a lady,” indicating the defendant’s wife at the cash register, that the defendant became more upset and attempted to hit Jessup in the head with a paper bag, screaming, “God damn you. I’ll kill you,” that thereafter the defendant attempted to strike Jessup with a paper bag four or five times, that the defendant thereafter opened the paper bag, pulled out a gun and shot Jessup in the chest. DiNis-co testified that Jessup had armed himself with a bottle taken out of a six-pack on the counter prior to the defendant taking the gun out of the paper bag, but that Jessup had never raised the bottle above his waist level. DiNisco testified that thereafter Jessup ran out of the store with the defendant in pursuit screaming.

Based on the above testimony, the defendant requested the trial court to charge the jury in accord with Fla.Std. Jury Instr. (Crim.) 2.11(d) (para. 10) on self defense concerning the defendant’s lack of a duty to retreat when unlawfully attacked in his own home or on his own premises. That standard jury instruction reads as follows:

“One unlawfully attacked in his own home or on his own premises has no duty to retreat and may lawfully stand his ground and meet force with force, including deadly force, if necessary to prevent imminent death or great bodily harm to himself or another.”

The state objected to the above instruction on the ground that the instruction was only applicable to a home and not to business premises. The trial court sustained this objection and declined to give the instruction to the jury.

The court did charge the jury in accord with Fla.Std. Jury Instr. (Crim.) 2.11(d) (para. 9) as follows:

“If attacked by another, even though the attack is wrongful, he has the legal duty to retreat if by doing so he can avoid the necessity of using deadly force without increasing his own danger, but a person placed in a position of imminent danger, of death or great bodily harm to himself by the wrongful attack of another has no duty to retreat if to do so would increase his own danger of death or great bodily harm.”

The trial court also instructed the jury on other appropriate self defense instructions, none of which pertained to the duty to retreat.

The jury acquitted the defendant on the aggravated battery charge, but returned a verdict of guilty on the lesser included offense of simple battery [§ .784.03,. Fla.Stat. (1979)]. The jury also returned a verdict of guilty on the charge of possession of a firearm during the commission of a felony. The trial court entered a judgment upon both convictions, but subsequently, upon proper motion and hearing, arrested the judgment of conviction as to possession of a firearm during the commission of a felony. The trial court concluded that because the jury had acquitted the defendant of the underlying felony, to wit: aggravated battery, the conviction on the said firearm charge was inconsistent with such acquittal.

The defendant appeals the conviction of simple battery. The state cross-appeals the arrest of judgment on the firearm conviction.

II

It is the established law of this state that a person may use deadly force [i. e., “force which is likely to cause death or great bodily harm,” § 776.06, Fla.Stat. (1979)] to repel an unlawful attack upon himself if “he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself . . ..” § 776.012 Fla.Stat. (1979). Moreover, Florida, in accord with a strong minority of jurisdictions throughout the country, has imposed an additional requirement that the defender against such a violent attack has a duty to avoid the difficulty and retreat from the affray, before using deadly force, if he can do so consistent with his own safety without exposing himself to death or great bodily harm. The policy reason behind this retreat rule is to insure more fully that human life will not be taken by a person who is unlawfully attacked except as a last resort to save himself from imminent death or great bodily harm. Pell v. State, 97 Fla. 650, 665, 122 So. 110, 116 (1929); Linsley v. State, 88 Fla. 135, 101 So. 273, 275 (1924) (court syllabus no. 1); Doke v. State, 71 Fla. 633, 71 So. 917, 918 (1916) (court syllabus no. 1); Owens v. State, 64 Fla. 383, 60 So. 340 (1912) (court syllabus no. 2); King v. State, 54 Fla. 47, 44 So. 941, 942 (1907) (court syllabus no. 1); Danford v. State, 53 Fla. 4, 43 So. 593 (1907) (court syllabus no. 1); W. LaFave & A. Scott, Jr., Criminal Law 395-396 (1972); Perkins on Criminal Law, 1005-1012 (2d ed. 1969).

An exception to the general duty to retreat before using deadly force in self defense has long been recognized in this state. The Florida Supreme Court in Danford v. State, 53 Fla. 4, 13, 19, 43 So. 593, 596-597, 598 (1907), states that exception as follows:

[A] man violently assaulted in his own house, or on his premises near his house, is not obliged to retreat, but may stand his ground and use such force as may appear to him as a cautious and prudent man to be necessary to save his life or to save himself from great bodily harm, (citation omitted). .
The doctrine that a man assaulted on his own premises is under no duty to retreat, but may stand his ground and resist the assault with whatever force may be necessary, even to the taking of life, has its origin in the common-law theory that a man’s house was his castle, (citation omitted). This doctrine has been by some courts extended to the premises immediately adjoining the dwelling house, and other buildings, such as an office or place of business.

Indeed, the prevailing rule throughout the country among those jurisdictions which, like Florida, have adopted a general duty to retreat doctrine is that a defendant is under no duty to retreat prior to using deadly force in self defense when violently attacked in his home or business premises, which includes inter alia his place of employment while lawfully engaged in his occupation. Annot., 41 A.L.R.3d 584, 589-602 (1972); Perkins on Criminal Law 1009-1012 (2d ed. 1969). We adopt this prevailing rule as the law in this state. In our view, business or employment premises should enjoy the same sanctity as a home for self defense purposes as in each instance the person attacked has a proprietary or near proprietary interest in the place where he is assaulted which is cloaked with a certain privacy protection; a person ought not be required, when attacked, to flee from such hallowed ground. Moreover, our normal solicitude for the life of the attacker is somewhat dampened when he chooses such historically protected premises on which to make his murderous assault.

In the instant case, the defendant testified that he was lawfully engaged in his occupation as a clerk at a U-Totem store when he was unlawfully assaulted by a customer with a deadly weapon to wit: a bottle, Blitch v. State, 194 So.2d 1 (Fla. 3d DCA 1967); Dey v. State, 182 So.2d 266 (Fla. 2d DCA 1966), that this attack was preceded by the customer’s obscene criticism of the store’s price of a product, and that the defendant used deadly force, to wit: a gun, in order to protect himself against what he reasonably believed to be a threat of death or serious bodily harm. Based on this evidence, the trial court was required to give an instruction on self defense and in fact did so. Taylor v. State, 301 So.2d 123 (Fla. 4th DCA 1974).

As part of the general instructions on self defense, the trial court was also required to give an instruction as delineated in Fla.Std. Jury Instr. (Crim.) 2.11(d) (para. 10) concerning the defendant’s lack of a duty to retreat when unlawfully attacked on his own premises. Such an instruction was proper because the defendant was allegedly at his place of employment lawfully engaged in his occupation when he was unlawfully assaulted by a customer with a deadly weapon. “The right to stand one’s ground without retreating when violently assaulted in his own home or on his own premises, in a difficulty which he did not provoke, should form an element of the instructions on the law of self-defense in cases where there is evidence tending to show such a state of facts.” Pell v. State, 97 Fla. 650, 665, 122 So. 110, 116 (1929). The failure to give such an instruction constitutes, in our view, reversible error in this cause which requires the grant of a new trial upon remand. Hedges v. State, 172 So.2d 824 (Fla.1965); Watkins v. State, 197 So.2d 312 (Fla. 4th DCA 1967).

III

As to the state’s cross-appeal, we have no difficulty in reversing the arrest of judgment on the firearm conviction. Although this conviction is technically inconsistent with the battery conviction, such inconsistency can form no basis for upsetting either conviction herein as the jury under our system of law is entitled to return inconsistent verdicts in a criminal case. Frazier v. State, 294 So.2d 691 (Fla. 1st DCA 1974). For the reasons already developed, however, it is our view that the trial court improperly declined to instruct the jury, as requested, on the law of self defense with reference to the duty to retreat. As self defense was asserted by the defendant on both the battery and firearm charges, this instructional error deprived the defendant of a fair trial on both charges, and accordingly, a new trial as to both convictions thereunder is in order.

IV

The conviction for simple battery is reversed and the cause remanded for a new trial on the charge of simple battery. The arrest of judgment as to the possession of a firearm during the commission of a felony conviction is reversed and the cause is remanded for a new trial on such charge.

Reversed and remanded.

SCHWARTZ, Judge

(specially concurring).

I entirely agree with Judge Hubbart’s excellent opinion. It may be in order, however, briefly to highlight why a retrial, rather than reinstatement of the guilty verdict, is required on the charge of possession of a firearm in the commission of a felony. The reason is simply that the denial of the retreat instruction prejudicially affected the jury’s finding that the defendant had committed the felony of aggravated battery (or indeed any crimé) at the time of the incident. Of course the fact that the jury “pardoned” Redondo by convicting him only of the lesser-included misdemeanor of simple battery does not preclude its finding, in passing upon the other alleged offense, that he had actually committed the underlying felony. Frazier v. State, 294 So.2d 691 (Fla. 1st DCA 1974). Such a determination may not be upheld, however, when, as here, it is based upon erroneous instructions.

      . There is, on the other hand, no such duty to retreat when the defender uses non-deadly force to defend himself against an unlawful assault. “It seems everywhere agreed that one who can safely retreat need not do so before using non-deadly force.” W. LaFave & A. Scott, Jr., Criminal Law 395 (1972). “If he does not resort to a deadly force, one who is assailed may hold his ground whether the attack upon him be of a deadly or some lesser character. Although it might be argued that a safe retreat should be taken if thereby the use of any force could be avoided, yet . . . the logic of this position never has been accepted when moderate force is used in self-defense.” State v. Abbott, 36 N.J. 63, 174 A.2d 881, 885 (1961). Indeed all the duty to retreat cases in Florida have involved homicides in which deadly force was employed by the person asserting self defense. 16 Fla.Jur. “Homicide” § 60 (1957).

      . A retrial of the charge of aggravated battery would, of course, be barred on double jeopardy grounds as the jury upon the first trial necessarily acquitted the defendant on such a charge by returning a verdict of guilty on the lesser offense of battery. Greene v. City of Gulfport, 103 So.2d 115 (Fla.1958); Sands v. State, 328 So.2d 563 (Fla. 3d DCA 1976).

      . It is obvious that this is what the jury did. If Redondo, as it concluded, committed a battery, it must have been an aggravated battery as defined by § 784.045(1)(b), F.S., since a “deadly weapon,” a firearm, was used. And it is easy to see the reason this happened. As the jury was told, a conviction for aggravated battery with a firearm carries with it a minimum mandatory three-year sentence under § 775.087(2). While the possession offense, proscribed by § 790.07(2), is a second degree felony, it involves no such requirement. Clearly, the jury did not believe the circumstances called for Redondo to serve no less than three years in the state penitentiary without parole. I have previously commented, in Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976) affirmed, 340 So.2d 928 (Fla.1976); and Lee v. State, 368 So.2d 395 (Fla. 3d DCA 1979) (Schwartz, J., specially concurring), upon the illogicality of the Florida doctrine which requires instructions on lesser included offenses for which there are no factual bases. In this case, this rule has led to the jury’s overruling of a legislative decision because of its feeling that the result clearly required by the statute was too harsh to be applied to the facts before it. Only the supreme court can determine whether the “jury pardon” policy which permits such a conclusion should remain in effect. See also Judge Letts’ thoughtful remarks in Keenan v. State, 379 So.2d 147 (Fla. 4th DCA 1980); cf. Holloway v. State, 379 So.2d 953 (Fla.1980) (Boyd, J., dissenting).


author: HUBBART, Judge.

text:
    CITY OF MIAMI BEACH, Appellant, v. TOWN OF BAY HARBOR ISLANDS, Bal Harbor Village, City of North Bay Village and Metropolitan Dade County Water and Sewer Board, Appellees.
    No. 79-261.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.

      John A. Ritter, City Atty., Andrew Mori-ber, Chief Deputy City Atty. and Beth Ellen Spiegel, Asst. City Atty., for appellant.
    Robert A. Ginsburg, County Atty. and Stanley B. Price, Asst. County Atty., Joseph H. Weil, Lewis Horwitz, Alan S. Gold, Miami, for appellees.
    Before PEARSON and HUBBART, JJ., and CHAPPELL, BILL G., Associate Judge.
   HUBBART, Judge.

The central issue involved in this appeal is whether a trial court is authorized to award attorneys fees to the prevailing party in a civil contempt proceeding as against a municipality under Section 57.105, Florida Statutes (1979). We hold that the trial court is so authorized by the above statute, but only where “the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.” As no such finding was made by the trial court in the order under review, we reverse the order insofar as it assesses attorneys fees and remand for further proceedings; we affirm the instant order, however, insofar as it assesses costs.

A

It is the established law of this state “that attorneys fees may be awarded a prevailing party only under three circumstances, viz: (1) where authorized by contract; (2) where authorized by a a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into court a fund or other property.” Kittel v. Kittel, 210 So.2d 1, 3 (Fla.1967), quoted with approval in Estate of Hampton v. Fairchild-Florida Construction Co., 341 So.2d 759, 761 (Fla.1976). By statute, a trial court is authorized to “award a reasonable attorneys fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.” § 57.105, Fla.Stat. (1979).

In the instant case, we have for review an order of the trial court awarding attorneys fees and costs to the prevailing parties [Town of Bay Harbor Islands, Bal Harbour Village, City of North Bay Village, and Metropolitan Dade County] in a civil contempt proceeding brought against the City of Miami Beach for willful disobedience of a prior court injunction, which had prohibited the passage of a certain city ordinance. Fla.R.App.P. 9.130(aX4). Our review of the record reveals serious doubt as to whether there was any justiciable issue of either law or fact raised by the City of Miami Beach as the losing party in the contested contempt proceeding. The City of Miami Beach appeared to be in unmistakable contempt of the prior court injunction. If no such justiciable issue was raised by the City of Miami Beach in the contempt action, Section 57.105, Florida Statutes (1979), clearly authorized the assessment of attorneys fees against the city, and this result is unchanged by the fact that the losing party herein is a governmental entity. The statute in question makes no exception for governmental entities such as municipalities.

Ordinarily, then, we would be inclined to affirm the attorneys fee award herein but for the fact that the order under review is technically deficient. It contains no finding, as required by statute, that “there was a complete absence of a justicia-ble issue of either law or fact raised by the losing party.” § 57.105, Fla.Stat. (1979). In the absence of such a finding, we are compelled to reverse, but based on the showing in this record, we are constrained to remand the cause to the trial court to make the appropriate finding under the statute which the evidence will sustain. Moreover, it should be noted that there was no other basis besides the above statute for an award of attorneys fees in this cause.

B

We see no merit whatever in the appeal from the assessment of costs in this case. The City of Miami Beach was without question accorded due process by the trial court in every respect. Its contentions to the contrary are rejected as having no merit whatever. City of Miami v. Murphy, 137 So.2d 825 (Fla.1962); § 57.041, Fla.Stat. (1979).

C

The order under review is affirmed insofar as it assesses costs against the City of Miami Beach. The order under review is reversed insofar as it imposes attorneys fees against the City of Miami Beach and the cause is remanded to the trial court with directions to make an appropriate finding based on the record as to whether there was any justiciable issue of either law or fact raised by the City of Miami Beach as the losing party in the subject contested contempt proceeding and thereafter to assess or deny attorneys fees depending on the finding entered based on the views expressed in this opinion.

Affirmed in part; reversed and remanded in part.


author: LARRY G. SMITH, Judge.

text:
    REALTY MANAGEMENT CORPORATION, Appellant, v. Shelton KEMP, Director, State of Florida Department of Labor and Employment Security, Division of Employment Security, Appellee.
    No. MM-427.
    District Court of Appeal of Florida, First District.
    March 5, 1980.

      David L. Cook of Young, van Assenderp, Varnadoe & Benton, Tallahassee, and James M. Blue of Hogg, Allen, Rice, Norton & Blue, Tampa, for appellant.
    Ollie Evans and Alex Littlefield, Jr., Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

Realty Management Corporation appeals an order of the appellee, Florida Department of Labor and Employment Security, Division of Employment Security, finding that Realty is liable for unemployment compensation contributions with respect to earnings of its salesmen, and that the Division is not estopped to collect unemployment compensation contributions from Realty retroactive to July 1, 1972. The issues are whether Realty’s salesmen were compensated “solely by way of commission”, which is classified as exempt employment under Section 443.03(5)(7 )(16), Florida Statutes (1975); and if such employment is not exempt, is the Division estopped to collect taxes due for prior years back to July 1, 1972, because the Division advised Realty that it did not owe taxes, and refunded to Realty taxes already paid by it for the same period. We affirm the Division’s order, finding Realty liable for the tax, and finding insufficient basis for estoppel against the Division.

The statute exempts from “employment” for which the tax must be paid

“(16) Service performed by an individual or a person as a real estate salesman or agent, if all such service performed by such individual or such person is performed for remuneration solely by way of commissions.” (Section 443.03(5)(7 )(16), Florida Statutes (1975))

Determination of the issues requires consideration of the manner in which Realty compensated its salesmen. Realty allowed its salesmen to receive a weekly “draw” against future commissions earned by them on sales of real estate. It contends that the compensation paid to its salesmen was nevertheless “solely by way of commission”, pointing out that it reserved the right and did on occasion terminate the draw privilege if a salesman performed poorly, a salesman had the option to receive a draw or not, and salesmen have in fact continued in Realty’s employment after having their draw privileges discontinued. Appellee responds by pointing out that although a salesman’s draw was charged against commissions he earned, if he terminated his employment before earning commissions equal to the total of the draws received, he was not required to repay the excess to Realty. Thus, the draw could not be considered exclusively as an advance against future commissions, nor as a “loan”, since it was not repayable even if not earned. Only in the event a salesman later returned to Realty’s employment, after being discharged or voluntarily leaving, would Realty continue to charge the salesman with the amount of unearned draws received.

We agree with the Division’s contention that Washington National Insurance Company v. Employment Security Commission, 61 Ariz. 112, 144 P.2d 688 (1944), points the way to a decision adverse to Realty. This is so because Arizona’s unemployment compensation act contained language identical to Florida’s, and under similar facts the Arizona court found that the employees were not paid “solely by way of commission” so as to exempt the employer from contributions for the unemployment tax. In the Washington National case insurance agents received an advance against future commissions based upon an agreement with their employer. The court found that the payment of a fixed sum for a period of thirteen weeks, without regard to the amount of insurance sold each particular week, did not constitute payment solely by commission, particularly in view of the fact that amounts so paid were merely chargeable against possible earnings, and there was no fixed personal responsibility for repayment. We have examined the authorities cited by Realty, including Dimmitt-Rickoff-Bayer Real Estate Co. v. Finnegan, 179 F.2d 882 (8th Cir. 1950), cert. den. 340 U.S. 823, 71 S.Ct. 57, 95 L.Ed. 605 (1950), and Standard Life and Accident Insurance Co. v. U.S., 75-1 C.C.H.T.C. § 9352 (W.D.Okl. 1975), and other authorities on this point. However, we do not consider these authorities controlling, since they appear to turn primarily upon the question whether the salesmen or agents were employees or independent contractors. Furthermore, it is clear that resolution of the employee-independent contractor question requires consideration of many factors, the method of compensation being only one. Realty did not present evidence on this issue in the proceeding below, and cannot raise the independent contractor question for the first time on appeal. 3 Fla.Jur.2d, Appellate Review, § 299, p. 359. Also, in Dimmitt, there was no draw system available as in the instant case.

Turning to the estoppel issue, which we have concluded also must be decided adversely to appellant-Realty, we must consider the factual circumstances in some detail. Since 1972 Realty has used real estate salesmen to sell property, and until 1975 Realty paid unemployment contributions as required by Chapter 443, Florida Statutes, on the earnings of its salesmen. In 1975, after an inquiry by Realty and a conference with a Division employee, the Division advised Realty by letter dated January 23, 1975, that its employment of salesmen on a commission, with an optional draw against commissions, was exempt employment, so that Realty was not liable for the unemployment compensation tax. Upon receipt of this advice, Realty discontinued payment of the tax. In addition, the Division refunded to Realty all contributions made by it since 1972, as did the federal government. Realty’s liability for the tax later became an issue when a discharged salesman applied for, and in October, 1976, was held entitled to unemployment compensation benefits. Subsequent to this determination, the Division reconsidered Realty’s tax status and determined that Realty was in fact liable for the tax, including the amount previously refunded by the Division. Realty’s account, which had been placed on “inactive status”, was reactivated by the Division, and on March 31, 1977, the Division issued a written demand upon Realty for the unpaid contributions. Realty then initiated the proceedings which resulted in the order appealed here.

Realty bases its estoppel claim upon the fact that it changed its position by discontinuing payment of the tax after the 1975 letter absolving it of liability for the tax, and upon the further fact that it acted in reliance upon the Division’s representation as to its tax liability by continuing its employment plan permitting its salesmen to receive draws against commissions. Realty argues, not without some justification, that equity and fairness would dictate that it be relieved of back taxes from July, 1972, to October, 1976, the time when Realty was again made aware of its tax liability, after receiving contrary advice from the Division in January, 1975. Realty reasons that had it been advised that its tax liability arose solely because of the draws allowed its salesmen, it would have discontinued the practice, thus avoiding any liability for the tax. Although we are sympathetic to Realty’s predicament, we nevertheless are compelled by established law to reject its estop-pel argument.

Prior decisions of this court have firmly established the rule that the state can be estopped, but only under exceptional circumstances. Greenhut Construction Company v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971). Such exceptional circumstances were found present in George W. Davis & Sons, Inc. v. Askew, 343 So.2d 1329 (Fla. 1st DCA 1977). In that case a taxpayer was relieved of tax liability arising from its failure to collect admissions taxes from its fishing customers during a period of time between conflicting decisions of this court first declaring the tax void, and subsequently declaring it valid. Without a lengthy recitation of the unusual facts and court decisions involved in the George W. Davis case, we think that case is clearly distinguishable from the present one, so that its holding does not support Realty’s claim of estoppel. There, as the court pointed out, the tax was one the taxpayer-boat operator was required to collect from its customers, for the state. The taxpayer, said the court, was in a sense a “collecting agent for the state” (George W. Davis, supra, at 1332). The court carefully pointed out that the tax being sought was not one which the taxing authority, “through error or mistake in interpreting the law” (at 1332), failed to assess against a taxpayer and upon later discovering the error, seeks to require the taxpayer to pay what he should have paid at the previous time. By contrast, here Realty was relieved of the tax through error or mistake in interpreting the law, and the Division thereafter merely sought to require Realty to pay what it should have, and in fact did pay during prior years, until it received the erroneous advice from the Division. Moreover, in the George W. Davis case, the court decision relied upon was such that during the time that decision was effective, the boat operator had no authority to collect the tax, and had it continued to collect the admissions tax in the face of a court decision holding the tax void, it would have been collecting money which did not belong to the state. Most significantly, as the court stated, there was no way in which the boat operator could “reverse time and go back and collect this tax from its past patrons” (George W. Davis, at 1332). Here, the tax contribution is one due from Realty, not third persons, and there are no exceptional circumstances remotely comparable to the George W. Davis case. We find no unusual detriment to Realty by reason of the demand for return of the refund it received from the state in 1975 for prior tax payments. Furthermore, although for the year 1975, and until October, 1976, Realty might justifiably have assumed that its method of operation created no tax liability, no change in its position actually occurred, other than its failure to remit the tax. True, it might have altered its method of compensating its salesmen so as to avoid tax liability; but we do not consider that its failure to do so is sufficient to constitute such a detriment as is required for estoppel against the state. Realty might have avoided all liability for the tax by changing its method of operation, but by the same token, by not changing Realty continued to reap whatever benefits it evidently expected to receive when it adopted the draw system of compensation in the first instance. We conclude, as did the Division, that estoppel does not apply against the state under the circumstances presented. See also Department of Revenue v. Hobbs, 368 So.2d 367, 368 (Fla. 1st DCA 1979), where we noted that George W. Davis “[stood] on its own exceptional facts”, and that “administrative officers aré not estopped through mistaken statements of the law”. (Id. at 369).

We note, however, that because of the special circumstances involved, penalties and interest were not and will not be assessed, provided Realty pays the contributions due under and within the time specified in the Division’s order.

For the foregoing reasons, the order appealed is affirmed.

ERVIN, J., concurs.

BOOTH, J., dissents.


author: OTT, Judge.

text:
    Sam P. FERLITA, Appellant, v. STATE of Florida, Appellee.
    No. 78-1587.
    District Court of Appeal of Florida, Second District.
    March 5, 1980.
    Larry C. Hoffman and J. Chesney Carson, Clearwater, for appellant.
    Leslie M. Conklin, Asst. County Atty., Clearwater, for appellee.
   OTT, Judge.

Appellant is a bail bondsman. He posted surety bonds in several cases in which the bail was declared forfeited when the defendant failed to appear. The clerk of the circuit court later entered judgment against the surety on each bond and the bondsman appeals. We vacate those judgments.

The narrow question presented here is whether the clerk had power to enter a judgment under Section 903.27, Florida Statutes (1973) where the state attorney did not file a certified copy of the order of forfeiture, but instead merely presented his “memorandum” that the bail had been ordered forfeited.

Forfeitures are not favored in Florida and statutes allowing them are strictly construed. Resolute Insurance Co. v. State, 269 So.2d 770 (Fla. 3d DCA 1972); South American Fire Insurance Co. v. State, 270 So.2d 374 (Fla. 3d DCA 1972). Consequently, the statutory prerequisites established by the legislature for the orderly estreature and collection of bail bonds are to be “mandatorily followed.” Ramsey v. State, 225 So.2d 182 (Fla. 2d DCA 1969). An order of forfeiture must be in writing and a certified copy thereof must be filed in the office of the clerk of the circuit court. When the specified procedure has been complied with, the clerk is authorized to enter a judgment against the surety. Ramsey, supra, at 185-86.

In the case at bench, the court below has ruled that the irregular procedure adopted by the state attorney and the circuit court clerk constituted “substantial compliance” with the statutory mandate. On the record before us, devoid as it is of any factor which would have prevented strict compliance with the essential requirements of the statute, we cannot agree with that conclusion.

In considering this aspect of the case, we begin with the truistic axiom that “strict compliance” requires a showing of strict compliance. Green v. Nashner, 216 So.2d 492 (Fla. 3d DCA 1968). Where strict compliance is required, the statute must be followed exactly in order to give the court jurisdiction to enter a judgment, and if there is a failure to do so, the purported judgment is void. McGee v. McGee, 156 Fla. 346, 22 So.2d 788 (1945). Substantial compliance is normally acceptable only where strict compliance has been rendered impossible by some cause for which the party charged with strict compliance is not responsible, such as the conduct of the other party. See, e. g., Zarcone v. Lesser, 190 So.2d 805 (Fla. 3d DCA 1966); Lendsay v. Cotton, 123 So.2d 745 (Fla. 3d DCA 1960). Particularly applicable to the case at bench is the rule that the doctrine of substantial compliance “leaves no room for dispensing with the directive provisions which are set out in a statute as the steps necessary to be taken.” Conway v. Spence, 119 So.2d 426 (Fla. 3d DCA 1960).

Moreover, we think that even more literal adherence is required when a statute spells out the steps to be taken before the clerk of a court is authorized to enter a judgment. A clerk acts in a purely ministerial capacity, and has no discretion to pass upon the sufficiency of documents presented for filing. Albert M. Travis Co. v. Atlantic Coast Line R. Co., 102 Fla. 1117, 136 So. 884 (1931) rehearing denied 102 Fla. 1117, 139 So. 141; Corbin v. State ex rel. Slaughter, 324 So.2d 203 (Fla. 1st DCA 1976). His power to act must clearly appear from a particular statute and the record to which it applies. Pan American World Airways v. Gregory, 96 So.2d 669 (Fla. 3d DCA 1957).

Considered in the light of those rules, we think that a circuit court clerk is powerless to enter a judgment under Section 903.27 unless and until he has received and filed a certified copy of an order of forfeiture. The filing of this initial document is the act which gives the circuit court jurisdiction to proceed under the statute, and if the clerk attempts to act prematurely the judgment so entered is not merely voidable, but void. Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926). While we can find no precedent precisely on point, several parallel situations come to mind. The most analogous example is the power of a clerk to enter a default judgment. If the record does not reflect the statutory prerequisites to the clerk’s power to act, the judgment so entered is void. Brauer v. Paddock, 103 Fla. 1175, 139 So. 146 (1932); St. Lucie Estates v. Palm Beach Plumbing Supply Co., 101 Fla. 205, 133 So. 841 (1931); Kroier v. Kroier, 95 Fla. 865, 116 So. 753 (1928).

The judgments are vacated and the cases are remanded to the circuit court for further proceedings consistent with the statute and this opinion.

SCHEB, Acting C. J., and RYDER, J., concur.

      . Section 903.27 reads in pertinent part as follows:
      (1) If the forfeiture is not paid or discharged within thirty days and the bond is secured other than by money and bonds authorized in § 903.16 the state attorney . shall file a certified copy of the order of forfeiture with the clerk of the circuit court for the county where the order was made. The clerk shall enter a judgment against the surety for the amount of the penalty and issue execution.

      . The statutory scheme for estreature was designed to apply to different courts. Resolute Insurance Co. v. State, 289 So.2d 456 (Fla. 3d DCA 1974). When the case in which bail has been forfeited is pending in an inferior court, its order of forfeiture is the circuit court’s first encounter with the matter. That situation both explains and lends significance to the statutory requirement that a certified copy of the order must be presented and filed. Since the legislature has not seen fit to specify a different requirement when only the circuit court is involved, we will not devise one on our own initiative.


author: HOBSON, Judge. GRIMES, Chief Judge,

text:
    Stafford LAKE, Appellant, v. STATE of Florida, Appellee.
    No. 78-1910.
    District Court of Appeal of Florida, Second District.
    March 5, 1980.
    Rehearing Denied March 18, 1980.

      Jack 0. Johnson, Public Defender, and Michael S. Becker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

Appellant, Stafford Lake, was charged by information with two counts of involuntary sexual battery in violation of Section 794.-011(3), Florida Statutes (1977). Count II of the information charged that appellant “did commit a sexual battery . . . and did threaten to use deadly weapons, to wit: a knife and firearm . . . .”

At trial, the court instructed the jury as to the essential elements of the crime of sexual battery with a deadly weapon or actual physical force likely to cause serious personal injury. The court further defined “sexual battery” and “consent.” The court went on to state that a lesser included offense of involuntary sexual battery with a deadly weapon is “involuntary sexual battery with a weapon.” In the portion of the jury charge which dealt with possible penalties, the court stated:

The law provides that the maximum penalty for the offense as charged, that involuntary sexual battery with a deadly weapon set forth in Count One and Count Two of the information is life imprisonment. . . . The possible penalty with a weapon, involuntary sexual battery with a weapon, ... is thirty years.

After deliberations, the jury returned a verdict of not guilty as to Count I, and as to Count II, “guilty of involuntary sexual battery with a weapon, as included in Count II of the information filed herein.” The court then adjudicated appellant guilty of sexual battery with a weapon and sentenced him to. thirty years imprisonment.

Appellant argues that his conviction for sexual battery with a weapon must be reversed because Section 794.011 does not proscribe or delineate that crime. He concedes, however, that he voiced no objection to the State’s requested instruction on sexual battery with a weapon nor to the trial court’s decision to give such an instruction. We cannot agree with appellant’s argument and, for reasons set out hereinafter, we affirm the conviction and sentence entered against him.

Upon a careful reading of the record in this cause, we have concluded that the court did not err in its instruction to the jury. Obviously, everyone involved understood that the court had defined the offense of sexual battery with a weapon as a lesser included offense of sexual battery with a deadly weapon. This was confirmed when the court instructed as to the possible penalties involved and again at the sentencing when the court asked the prosecutor, “What is the maximum?” The prosecutor replied, “Thirty years, Your Honor.”

Section 794.011(3) proscribes the crime of sexual battery with a deadly weapon or the actual use of physical force likely to cause serious personal injury. This offense is a life offense punishable under Section 775.082 by a term of imprisonment for life or for a term of years not less than thirty. Section 794.011(4)(b) proscribes the crime of sexual battery by threatening to use force or violence likely to cause serious personal injury on the victim. This offense is a first-degree felony punishable under Section 775.082(3)(b) by a term of imprisonment not exceeding thirty years. The word “weapon” is defined as “an instrument of offensive or defensive combat; something to fight with; anything used, or designed to be used in destroying, defeating, or injuring, an enemy, as a gun, a sword, a shield, etc.” Webster’s New International Dictionary, Second Edition (1957), at 2892. In the context of the trial, the use of a weapon to commit the sexual battery was the equivalent of the threat of using force and violence likely to cause serious personal injury. We find nothing confusing in the trial court’s instruction and the form of the verdict returned by the jury. Appellant was simply convicted of a lesser included offense of the charge in the information. This conviction is supported by ample evidence presented by the State and as we stated in McClanahan v. State, 377 So.2d 240 (Fla. 2d DCA 1979), “The trial court has a right to determine whether the jury intended to convict the defendant of an offense for which judgment could be entered on the information.”

We find no reversible error in the judgment and sentence entered against appellant. It is necessary, however, that the judgment form be corrected to reflect that appellant was found guilty of involuntary sexual battery by threatening to use force or violence likely to cause serious personal injury on the victim, as included in Count II of the charging document.

We remand this cause to the trial court for entry of a corrected adjudication. We affirm the sentence rendered by the trial court.

SCHEB, J., concurs.

GRIMES, C. J., concurs specially with opinion.

GRIMES, Chief Judge,

concurring specially.

I concur in the result that the court has reached.

The following side-bar conference which took place at the time of closing argument is most revealing:

THE COURT: On the verdict forms I goofed up when we were in chambers having our discussion. The lesser included is not with a weapon. The lesser included is by threatening to use force or violence likely to cause great bodily harm. In other words, we were discussing with a weapon and without a firearm or with a weapon. What the statute says is with a firearm which would be as charged. And then the lesser would be by threatening to use force or violence likely to cause serious personal injury. In other words, that is a first degree felony as opposed to a life felony but I wanted to mention it to you because that is what the statute states, as well as the instruction.
Obviously the verdict forms should comply with what the law is.
MS. HOFFENBERG: In other words you are not going to submit the force and violence?
THE COURT: Yes, I am. In other words, it will be as charged and then with force and violence and then the other lesser included. There will be two involuntary sexual battery charges, one with a weapon, one by force or violence.
MS. HOFFENBERG: The only thing I have a problem with there is no force or violence alleged in the information at all, nothing about force or violence. There is no allegation in other words to support coming back with a verdict like that. I think we stated in chambers it would be a deadly weapon and use of a weapon.
MR. BERGMAN: Your Honor, I would love to have that but as a precaution I would just as soon not have it. We have alleged that the basis for the rape was that she consented as a result of fear and the fear not being through force or violence. But rather we have alleged specifically through threatening with a deadly weapon. I am afraid of that.
THE COURT: So you think we were right the first time without a weapon or with a weapon?
MR. BERGMAN: Yes, Your Honor. I wouldn’t want to take a chance on it. I think it seems to come logically together.
THE COURT: Back to the drawing board as it was with a weapon as included.

Ironically, we are now considering judicial error, even though the court followed the procedure requested by both appellant’s counsel and the state attorney.

With respect to appellant’s contention that he was convicted of a nonexistent crime, it is evident that everyone involved treated threatening to use a weapon to commit sexual battery as being tantamount to threatening to use force and violence likely to cause serious personal injury. Moreover, because appellant’s counsel insisted on the threatening to use a weapon charge, appellant cannot now complain that the crime proscribed by Section 794.-011(4)(b), Florida Statutes (1977), may not be a lesser included offense under the crime charged in Count II. Ray v. State, 374 So.2d 1002 (Fla. 2d DCA 1979); Jones v. State, 358 So.2d 37 (Fla. 4th DCA 1978). Substantial justice was obtained through the verdict, and appellant cannot point to harmful error.


author: BOARDMAN, Acting Chief Judge.

text:
    Vicente RODRIGUEZ, a/k/a Vincente Rodriguez, a/k/a Vicente Rodriguez, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 79-19.
    District Court of Appeal of Florida, Second District.
    March 5, 1980.
    Jack 0. Johnson, Public Defender, Bar-tow, and Thomas J. Sherwood, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Vicente Rodriguez, a/k/a Vincente Rodriguez, a/k/a Vicente Rodriguez, Jr., appeals his conviction and sentence for robbery with a firearm. We affirm the conviction but remand for correction of the sentence.

The only point appellant raises which has merit is his contention that the trial court erred in retaining jurisdiction for the first third of his sentence pursuant to Section 947.16(3), Florida Statutes (1978 Supp.).

The date of the offense with which appellant was charged was February 13, 1978. The effective date of the amendment to Section 947.16 allowing the trial court to retain jurisdiction to review a parole release order during the first third of the sentence of a person convicted of any of the enumerated crimes, including robbery, was June 19, 1978. Appellant was convicted and sentenced on September 20, 1978.

We agree with appellant that Section 947.16(3), Florida Statutes (1978) is an ex post facto law as applied to him. An ex post facto law, which is prohibited by Article I, Section 10, Florida Constitution, is defined as “[o]ne which, in its operation, makes that criminal which was not so at the time the action was performed, or which increases the' punishment, or, in short, which in relation to the offense or its consequences alters the situation of a party to his disadvantage.” Higginbotham v. State, 88 Fla. 26, 31, 101 So. 233, 235 (1924) (emphasis added). The challenged amendment to Section 947.16 clearly does alter appellant’s situation to his disadvantage.

A law is ex post facto when applied to an offense which occurred before the law became effective. State v. Gale Distributors, Inc., 349 So.2d 150 (Fla.1977). “[T]he significant event as far as judging the ex post facto effect is the date of the offense rather than the conviction.” Greene v. State, 238 So.2d 296, 301 (Fla.1970). Inasmuch as appellant’s offense was committed prior to the effective date of the statute in question, application of this law to him would be ex post facto in effect and therefore cannot apply to him.

Accordingly, appellant’s conviction and sentence are affirmed; however, the cause is remanded with directions to delete from the sentence the trial court’s reservation of jurisdiction.

SCHEB and CAMPBELL, JJ., concur.


text:
    Angelo PEDROSO, Appellant, v. STATE of Florida, Appellee.
    No. 79-414.
    District Court of Appeal of Florida, Second District.
    March 5, 1980.
    Jack O. Johnson, Public Defender, Bar-tow, and Susan G. Sexton, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Angelo Pedroso appeals from the revocation of his probation on the grounds that the trial court erred by revoking the appellant’s probation on several grounds which were not proven. While we partially agree with the appellant’s contention, we find no need to reverse. One ground relied upon by the trial court in revoking the appellant’s probation was the appellant’s unauthorized entry into Universal Car Loading and Distributing Company in Tampa, Florida. There was sufficient evidence to satisfy the conscience of the court that the appellant violated both Section 810.08, Florida Statutes (1977), and condition (4) of his probation by this offense. See Bernhardt v. State, 288 So.2d 490 (Fla.1974). A second ground for the revocation order was that the appellant violated the special condition of his probation order requiring him to make child support payments. The appellant pleaded guilty to this violation; it is well-settled that a guilty plea “is an in-court confession and an agreement for the court to enter a judgment of conviction.” Robinson v. State, 373 So.2d 898, 902 (Fla.1979). We find no error in the lower court’s revocation of the appellant’s probation on this ground.

Accordingly, we affirm the revocation of appellant’s probation on the grounds that he violated condition (4) of his probation by the unauthorized entry into the Universal Car Loading and Distributing Company building, and that he violated the special condition of his probation by failing to make child support payments. We strike from the revocation order the finding that the appellant violated conditions (2) and (7) and the finding that he violated the second “special condition” of his probation. The order, judgment and sentence are affirmed in all other respects.

GRIMES, C. J., and RYDER and DAN-AHY, JJ., concur.


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    ELLA K. VETROVEC, Appellant, v. Laddie VETROVEC and Bruce Vetrovec, Appellees.
    No. 79-1234.
    District Court of Appeal of Florida, Second District.
    March 5, 1980.
    N. Alfred Winn, St. Petersburg, for appellant.
    William R. Hanley, St. Petersburg, for appellees.
   GRIMES, Chief Judge.

Following the filing of a petition for administration of the Estate of Albert Vetro-vec in the probate division of the Pinellas County circuit court, a son and two grandchildren of Mr. Vetrovec filed a suit for declaratory judgment against Ella K. Vet-rovec in the civil division of that court. Therein they contended that as survivors of Mr. Vetrovec they were entitled to certain savings accounts and stock which they held jointly with him. Mrs. Vetrovec, who was the stepmother and stepgrandmother of the plaintiffs, was also the personal representative of Mr. Vetrovec’s estate, but they did not sue her in that capacity. She filed a motion to dismiss which the court granted, ruling that the probate court should determine the matter.

Mr. Vetrovec’s son and one of the grandsons then filed a petition in the probate court for determination of the ownership of the stock and savings accounts. In response, Mrs. Vetrovec filed an affidavit which stated that her deceased husband had purchased all of the stock and had established all the savings accounts with his own funds, that he had kept possession and control of these assets solely to himself throughout his life and that he never intended to make gifts of any part of them at any time. Following a hearing, the court ruled that the petitioners as surviving joint owners were entitled to the stock and savings accounts. From this order, Mrs. Vetro-vec makes a timely appeal.

At the hearing the attorneys made arguments concerning the impact of the presumption which arises from title being placed in joint names, the effect of the lack of delivery of the assets, and the applicability of certain statutes pertaining to joint savings accounts. However, it is clear that the court dismissed the petition for an entirely different reason. The court said:

I feel that the estate — I’ll say that the P.R. had an opportunity to present any proof in the other lawsuit that there should be a reason why these assets, which are numbered in the inventory 4 through 12, should not pass according to the title the way they were drawn, such as joint with the son, Laddie, and joint with the grandson, Bruce. I feel that the estate, in failing to correct the title in that lawsuit, abandoned their efforts to bring it into the estate as an estate asset, and, therefore, I’m going to grant the petition and direct that the lady turn over the assets.

The court erred in ruling that by failing to assert her position in the first lawsuit Mrs. Vetrovec waived the right to defend against the claims made in the later proceedings. In the first place, she was not' originally sued in her representative capacity. More significant, however, is the fact that in ruling that the probate division should handle the claims instead of the civil division, the civil division judge specifically stated that “there has been no determination on the merits of this matter.” Consequently, Mrs. Vetrovec did not suffer an adverse ruling in the first case, and there was nothing to indicate that she had abandoned her position.

We reverse the order dismissing the petition and remand the case for a determination on the merits.

SCHEB and RYDER, JJ., concur.


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    STATE of Florida, Appellant, v. Benjamin SANDERS, Appellee.
    No. 79-1749.
    District Court of Appeal of Florida, Second District.
    March 5, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and Charles L. Stutts, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Appellee Benjamin Sanders was charged by information with sexual battery. Appel-lee filed a motion to dismiss on the ground that the alleged victim had testified on deposition that appellee had not successfully achieved penetration of her vagina. The state filed a traverse to the motion, admitting the allegations of the motion, but adding the additional fact that the victim would testify at trial that appellee had achieved penetration. The trial court granted the motion to dismiss. We reverse.

A motion to dismiss pursuant to Rule 3.190(c)(4) should not be granted when the state has placed material facts in issue through a traverse to the motion. See Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla.1977). The state admitted that the victim made one statement under oath denying penetration, but asserted that she would recant this statement at a later time. The traverse suffices to place a material fact in issue. The victim’s prior inconsistent statement does not prevent her from testifying at trial that her assailant achieved penetration; rather the prior inconsistent statement goes merely to the credibility of the witness. The prior statement may be used by appellee to impeach the witness, but it may not serve as a basis for excluding the victim’s testimony that penetration was achieved.

Inasmuch as the state’s traverse was sufficient to place a material fact in issue, the trial- court erred in granting the motion to dismiss. We REVERSE and REMAND for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and BOARD-MAN and OTT, JJ., concur.


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    Jacqueline Loretta ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-1774.
    District Court of Appeal of Florida, Second District.
    March 5, 1980.
    Jack 0. Johnson, Public Defender, and Judith L. James, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The revocation of the appellant’s probation is affirmed upon the failure of the appellant to file monthly reports, in violation of condition (2) of her probation order, and upon the failure of the appellant to contribute to the costs of her probation, in violation of condition (11) of her probation order. We strike from the revocation order the finding of violation of condition (7). The order, the judgment and the sentence are affirmed in all other respects.

SCHEB, Acting C. J., and OTT and CAMPBELL, JJ., concur.