text:
    Michael FERGUSON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-272.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.

      Weiner, Robbins & Tunkey and Frederick S. Robbins, Miami, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD (Ret.), Associate Judge.
   HENDRY, Judge.

The major issues presented by this appeal are whether there was sufficient evidence introduced at trial by the prosecution to support the convictions of the defendant/appellant on the charges of second degree murder and unlawful possession of a firearm by a convicted felon.

The record reveals that Ferguson and a male companion were customers at a bar/disco establishment in the early morning hours of October 29, 1977. Shortly after they arrived, a dispute arose with the “bouncer” at the bar regarding the defendant’s lack of proper identification documents and the return of the admission charge to the upstairs discotheque. The bouncer escorted the men outside the bar and a violent fight broke out between the defendant and the bouncer; ultimately, the defendant suffered a gunshot wound in the mouth, and the bouncer was shot in the neck and died. At trial, an officer of the City of Miami Police Department, Identification Section, testified that a knife was found on the person of the deceased. The medical examiner assigned to the case testified that the wound to the neck was the cause of death; that the victim was six feet, two inches tall and weighed over two hundred and fifty pounds; that there were powder burns on the victim’s neck, indicating that he was shot at close range; that the powder burn evidence was consistent with the statements made by the defendant and his companion that Ferguson was in close contact with the deceased while struggling over a gun. The testimony elicited from other employees of the bar was corroborative of the recitation of events as given by defendant and his companion, covering the time they were in the bar to the point when they were escorted outside by the bouncer. As to the actual incident directly leading to the death of the bouncer, which transpired outside of the confines of the bar, there were no witnesses to corroborate or impeach the testimony of the defendant and that of his companion, which were essentially the same. They both stated that the deceased had a gun handle protruding from his trouser pocket and that once the three of them were outside the bouncer started poking at the defendant’s face, grabbed him around the neck, pushed him to the sidewalk and began to choke him; that during the struggle, the bouncer’s gun fell out of his trouser pocket; that the bouncer retrieved the gun, pointed it at the defendant while they were still lying on the cement; that they struggled over it, and the bouncer shot the defendant in the mouth; that the defendant grabbed for the gun, which was still in the hand of the deceased. The defendant stated that the bouncer’s other hand was still on the defendant’s neck; that in the struggle the defendant turned the deceased’s hand with the gun in' it toward the deceased and pulled the trigger a number of times. The defendant testified that he had not had any intention to kill the bouncer; that he was not aiming for any part of the decedent’s body; and that he “just wanted to get away from him.” The defendant testified that after the incident he picked up the gun and ran. The employees, who were inside the building, testified that when they heard the shots they looked out and saw the defendant running away from the scene with blood splattered over him, they also saw the companion walking away. The defendant was apprehended shortly thereafter by police officers, who testified that upon arriving at the scene the deceased was lying on the ground and a black man was running off; that when the defendant was apprehended he was bleeding from a wound in the mouth; and that a gun was found near the defendant.

Appellant points out that in the prosecutor’s closing argument he stated that “the state had to prove its case through circumstantial evidence,” and the trial judge instructed the jury that “if the circumstances are susceptible of two reasonable constructions, one indicating guilt and the other innocence, you must accept that construction indicating innocence.” We must agree with the appellant that because of the fact that the state had no witnesses to testify about the actual shooting incident, since it presented no evidence whatsoever to contradict the only two eyewitnesses’ (the defendant and his companion) version of what occurred, and the defense’s version is a clearly reasonable construction of the events indicating innocence, we cannot uphold the conviction on the charge of second degree murder. See McArthur v. State, 351 So.2d 972 (Fla.1977); Driggers v. State, 164 So.2d 200 (Fla.1977); Davis v. State, 90 So.2d 629 (Fla.1956); Mayo v. State, 71 So.2d 899 (Fla.1954), and Wright v. State, 348 So.2d 26 (Fla. 1st DCA 1977). The defendant’s testimony of the occurrence is consistent with the theory of self-defense, even though the circumstantial evidence presented by the prosecution may suggest a possibility of guilt. The court in McArthur, supra, stated, with regard to circumstantial evidence in a murder case, at 977 and 978:

“Based on the non-scientific conflicting evidence, we cannot accept the state’s view that all reasonable hypotheses of innocence are incompatible with the record.”
* * * * * *
“Both sides introduced fairly complex scientific evidence to explain or defeat appellant’s hypothesis of an accidental shooting.”
* * * * * *
“From the totality of scientific and nonscientific evidence at appellant’s trial, we are forced to conclude that the prosecution’s proof of Mr. McArthur’s intentional murder was not inconsistent with his accidental death. The jury could reasonably have concluded, and obviously did conclude, that it was more likely that appellant murdered her husband than that she did not. Yet ‘even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence.’ On this record appellant’s innocence has not been disproved . . . The state simply did not carry its burden of proof. Our jurisprudence and the justice of the cause require that the conviction entered below be reversed . . . .”

In the cause sub judice, we must conclude that the state did not carry its burden of proof; clearly, as a matter of law, there was insufficient evidence of the appellant’s guilt to support his conviction for second degree murder. The evidence contained in this record, consisting of witness testimony from the appellant’s companion, the bar employees, police officers, and the medical examiner is reasonably consistent with the version of events which appellant has conveyed.

As to the Ferguson’s conviction for possession of a firearm by a convicted felon, we must also reverse. The state failed to present what is required to sufficiently prove the prior conviction. See, Dowling v. State, 210 So.2d 280 (Fla. 2d DCA 1968) [the necessary elements to be proved being the information, the plea of the accused, the jurisdiction of the court, the verdict of the jury, and the judgment and sentence of the court], and State v. Dixon, 193 So.2d 62 (Fla. 2d DCA 1966) [the “proof must be technical and specific.”]

Reversed and remanded with directions to discharge the defendant as to the judgments and sentences herein appealed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph BALLIRO, Anthony Lamattina, and Rose Lamattina, Appellants, v. Gladys GOLDMAN, Appellee.
    No. 79-404.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Rehearing Denied Feb. 15, 1980.
    Fink & Golden and Richard K. Fink, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for ap-pellee.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Voorheis v. Barnsley, 116 Fla. 191, 156 So.2d 234 (1934); Claffey v. Serafino, 338 So.2d 270 (Fla.2d DCA 1976); Perry v. University Cabs, Inc., 344 So.2d 914 (Fla.3d DCA 1977); Allen v. Wright, 350 So.2d 111 (Fla. 1st DCA 1977); Westinghouse Credit Corporation v. Steven Lake Masonry Inc., 356 So.2d 1329 (Fla.4th DCA 1978).


text:
    Mary LLERENA, Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Appellee.
    No. 79-1044.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.

      Guillermo F. Mascaro, Coral Gables, and Charles V. Peppier, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and Steven D. Simpson, Miami, for appellee.
    Before HAVERFIELD, C. J., and SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Plaintiff, Mary Llerena, appeals an order of involuntary dismissal upon defendant insurer’s motion in an action to recover damages under an insurance policy.

Lumbermens Mutual Casualty Company (Lumbermens hereinafter), appellee, issued to the appellant, Mary Llerena, an automobile liability insurance policy which, inter alia, provided collision coverage on her automobile. With respect to this coverage the policy required that “proof of loss” be filed within 91 days of the date of the loss. Within 60 days following the filing of proof of loss either the insurer or the insured may demand an appraisal be made of the damages to the insured’s vehicle.

In June 1977, shortly after coverage went in effect, Llerena’s vehicle was damaged in an automobile accident. Lumbermens estimated the damage to the vehicle to be about $2,500 and on February 15, March 3, and May 3, 1978, tendered to counsel for Llerena a draft for $2,397.70 in payment for the damages. Counsel for Llerena rejected these offers of settlement as being insufficient to cover the loss which her counsel claimed to be $4,308.40. In December-1978 Llerena filed suit against Lumber-mens for damages. Thereafter Lumber-mens submitted to Llerena a proof of loss for the same amount as the previous settlement offers and demanded an appraisal. In its answer Lumbermens alleged that Llere-na failed to comply with the conditions precedent to the payment of her claim in that she failed to submit a proof of loss and to submit the claim appraisal. Llerena was permitted to file an amended complaint alleging that all conditions precedent had been waived by Lumbermens. Thereafter Lumbermens moved for involuntary dismissal of the action. After a hearing, the trial court entered an order of involuntary dismissal whereby Llerena’s complaint was dismissed without prejudice. Llerena appeals the dismissal order. We reverse.

The law is well established that when an insurer admits liability in an una-greed amount, formal proof of loss is thereby waived and the time in which the insurer is required to demand appraisal under the terms of the subject policy begins to run from the time the insurer admits liability. Bear v. New Jersey Ins. Co., 138 Fla. 298, 189 So. 252 (1939); English and American Ins. Co. v. Swain Groves, Inc., 218 So.2d 453 (Fla. 4th DCA 1969); American Bankers Ins. Co. of Fla. v. Terry, 277 So.2d 563 (Fla. 3d DCA 1973).

The submission of the first settlement offer on February 15, 1978, along with its draft for $2,397.70 constituted an admission of liability on the part of Lum-bermens. At that juncture Lumbermens waived the requirement of any formal proof of loss and the time in which it was required to demand appraisal under the policy (60 days) began to run. Thus, we conclude the trial court erred in entering the order of involuntary dismissal. We further note that the amended complaint alleged the defense of waiver and estoppel, and it was error to enter a dismissal pursuant to Fla.R. Civ.P. 1.420(b) prior to evidence being presented with respect to these issues. See Akdoruk v. Advanced Jet Systems, Inc., 296 So.2d 656 (Fla. 3d DCA 1974).

For the reasons stated the dismissal order is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.

      . The collision coverage contained a $100 deductible.


text:
    Sarah Ann KOZUSNIK, Appellant, v. Leonard SELKOWITZ, Appellee.
    No. 79-2110.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Rehearing Denied Feb. 15, 1980.
    R. Stuart Huff, Coral Gables, for appellant.
    Weinstein & Bavly and Arthur J. Mor-burger, Miami, for appellee.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

This petition for writ of certiorari seeks review of a judgment of the Circuit Court in its appellate capacity, which first dismissed, as frivolous, petitioner-appellant’s appeal from an order of the County Court and second remanded the cause for the assessment of attorneys’ fees in the trial court. The order of the County Court granted a defendant’s motion to strike an amended complaint; it did not enter a judgment. As such, it was not a final order and was, therefore, not appealable. See Roberts v. Knoll, 169 So.2d 496 (Fla. 2d DCA 1964); Altiere v. Atlantic National Bank of West Palm Beach, 155 So.2d 386 (Fla. 2d DCA 1963); and Shotkin v. Deehl, 148 So.2d 538 (Fla. 3d DCA 1963).

The Circuit Court properly dismissed the appeal, but, nevertheless, that decision must be quashed because it concerned the merits, and the merits were not presented by an appeal over which the Circuit Court had jurisdiction. We hold that this is a distinction which is material because there has been no final judgment in the trial court. Accordingly, the right to amend or file a new action in the trial court still exists in the petitioner.

The judgment of the Circuit Court is quashed.

It is so ordered.


text:
    James A. MAY a/k/a Theodore Clifford Chase, Appellant, v. The STATE of Florida, Appellee.
    No. 80-69.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Rehearing Denied Feb. 15, 1980.
    James A. May, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before PEARSON, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


author: DAKAN, STEPHEN LEE, Associate Judge. BERANEK, Judge,

text:
    Anthony NICHOLO, Appellant, v. STATE of Florida, Appellee.
    No. 78-602.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1980.
    Rehearing Denied Feb. 13, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, and Rene E. Lamar, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAKAN, STEPHEN LEE, Associate Judge.

Defendant appeals the denial of his Motion to Suppress physical evidence and a statement made subsequent to his arrest. Following the denial of this Motion to Suppress, he entered a plea of no contest and was sentenced, preserving his right to raise the issue of the denial on appeal.

The record indicates that police officers relying on a tip from an informant, stopped the Defendant in the beach area of Ft. Lauderdale and searched him. According to the officers, the informant told them that Defendant had in his possession certain stolen credit cards. The informant told the officers that he “believed” that the Defendant had “rolled someone to get them”. Acting solely on this information, the officers stopped Defendant on the sidewalk, retrieved his wallet from his pocket, and upon examination of the contents, found what later turned out to be stolen credit cards. Defendant was then arrested and “patted down”. This resulted in the officers finding a room key for a nearby Ramada Inn.

The officers took Defendant to the Ramada Inn. One of the officers testified that Defendant asked him if the officer would be willing to go by the Ramada Inn and pick up his belongings from his room before he was taken to jail. Defendant did not dispute the fact that the officers took him to the hotel, but indicated it was their idea and not his. In any event, upon arriving at the hotel, one of the officers remained in the lobby with Defendant, while others went upstairs to Defendant’s room for the purpose of securing his belongings. In the room they had found some merchandise in paper shopping bags with credit card receipt slips stapled to the outside. Apparently these credit card slips contained the name of the victim of the credit card theft. These items were also taken and placed into evidence.

Defendant was placed in a patrol car and on the way to the police station, according to the officers, he confessed to breaking into the victim’s automobile and stealing the credit cards. The trial judge denied Defendant’s Motion to Suppress the credit cards, the merchandise and slips found in the hotel room, and Defendant’s oral statement to the police officer. On appeal, Defendant appears to be concerned with the reliability of the information of the informant in support of the original search. Defendant argues that there was not sufficient information developed by the officer to form any “probable cause” for the search because the informant was not asked how he acquired the information he relayed to the officers and the officers made no effort to verify this information prior to searching Defendant. Defendant seems to feel that the reliability of the information together with the reliability of the informant himself is the key to the search.

The right of persons to be free from unreasonable searches and seizures is protected by the Fourth Amendment to the Constitution of the United States and Section 12 of Article I, Constitution of the State of Florida. To justify the warrant-less search by the officers in this case, the State must show that this search falls within one of the exceptions to the protections of the United States and Florida Constitutions. Certainly the original evidence produced from Defendant’s wallet was not incident to a lawful arrest, since the Defendant was not under arrest at the time he was searched. Likewise, there is no evidence that Defendant consented, either expressly or by his actions, to the initial stop and search. There is no contention by either the State or Defendant, nor is there any evidence to support a contention that this search was conducted within the permitted boundaries of Section 901.151, Florida Statutes, known as the “Stop and Frisk law” nor was the search otherwise justified under the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Other recognized exceptions to the constitutional protection against warrantless searches, such as the so-called “plain view” cases and the automobile search cases which have their genesis in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), are not applicable to the facts of this case. In this case, as in Martin v. State, 360 So.2d 396 (Fla.1978), the war-rantless search conducted by the officer was not incident to the arrest of the Defendant, but simply a search to obtain the evidence necessary for the arrest. The search should have been suppressed. See also, State v. Lundy, 334 So.2d 671 (Fla. 4th DCA 1976).

There seems to be some confusion about the effect of the information provided by the confidential informant in this case. This informant’s name was never disclosed, and he did not testify.. Defendant argues that even though he may have proved reliable in the past, the information given to the officer was not sufficient to support a search under the cases following the tests of the Aquilar-Spinelli doctrine. The State argues that this information was sufficient to provide “probable cause” for the search. We feel both positions are incorrect as to the issue in this case. The reliability of an informant and the credibility of the informant’s information are necessary to support a search warrant if this information is presented to a magistrate. This information is also critical in support of a warrantless arrest on the basis of a confidential informant’s information. Neither happened in this case. Although the informant’s information was the basis for the officers’ search, the warrantless search was not an exception to the protection of the Fourth Amendment and Section 12, Article I of the Florida Constitution. This Court need not discuss the issue of whether the informant’s information was sufficient to support “probable cause”.

The State argues that even if the initial search was unlawful and the evidence seized as a result of that search suppressed, the State still had sufficient evidence to convict the Defendant; therefore he may not prevail in this appeal. This argument is apparently based on the later seizing of the merchandise and credit slips from Defendant’s room. We feel this argument also fails. The key to Defendant’s room in the Ramada Inn was seized as a result of the arrest after the warrantless search. Had the Defendant not been improperly searched, and, therefore, improperly arrested, the key would never have been discovered. It is admitted, even by the officers, that at the time Defendant was taken to the hotel he was in custody and was on his way to jail. At best he gave permission for the officers to go to his room, (since he was not to be given that option) and retrieve his belongings. There was certainly no “consent search” of his room. Even the State does not argue that this case would fall within the so-called “plain view” doctrine so as to justify the seizing of the items. More importantly, but for the warrantless search and improper arrest, police officers would not have been in Defendant’s room. See Lundy v. State, supra. This would also apply to the confession later obtained by officers. See, e. g. Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977).

The decision of the trial court, denying Defendant’s Motion to Suppress the credit cards, the items taken from his hotel room, and his subsequent statements to the police officers, is hereby reversed, and the cause remanded for further proceedings.

ANSTEAD, J., concurs.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting:

I respectfully dissent. The trial judge heard the evidence offered on the motion to suppress and resolved the conflicts therein. The police officers knew the confidential informant personally. The confidential informant told the police that defendant had stolen some credit cards and that he had the cards with him. The confidential informant accompanied the police to where the defendant was and pointed him out. The police officer, knew defendant personally and had seen him on numerous prior occasions in the same area. On all prior occasions, defendant had been dressed in dirty street clothes. On this particular day, defendant was dressed in new and expensive clothing and jewelry. Under all of the circumstances, I believe the trial court could have resolved the conflicts in the evidence against the defendant and reached a conclusion that probable cause existed. See, State v. Doherty, 240 So.2d 332 (Fla. 4th DCA 1970). I would affirm.


author: MOORE, Judge.

text:
    Allen C. CLARK, as Tax Collector for Palm Beach County, Florida, Petitioner, v. Stobie INMAN et al., Respondents.
    No. 79-2121.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1980.
    William C. Owen, Jr. of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for petitioner.
    No appearance for respondents.
   MOORE, Judge.

By petition for common law certiorari we are asked to review an interlocutory order of the circuit court denying petitioner’s motion to limit service of pleadings. Petitioner contends that the denial of his motion constitutes a departure from the essential requirements of law that will result in material injury throughout the remainder of the proceedings and for which there is no adequate remedy by appeal after- final judgment. We grant certiorari and quash the order under review.

Petitioner, as tax collector for Palm Beach County, Florida, acting pursuant to the procedure authorized by Section 197.-086, Florida Statutes, 1977, filed a petition in the Circuit Court of Palm Beach County requesting an order ratifying and confirming the issuance of tax warrants. The named defendants were 390 delinquent taxpayers. Because the defendants were • so numerous, petitioner filed a motion pursuant to Fla.R.Civ.P. 1.080(c) to limit service of pleadings by each party to only those parties having an interest in the particular parcel of personal property to which each such pleading applies. The trial court denied the motion.

Petitioner then filed a petition seeking to invoke the certiorari jurisdiction of this Court. Thereafter, this Court issued an order directing respondents to show cause why such relief should not be granted and respondents have failed to file a response.

The statutory procedure authorized by Section 197.086(1) Florida Statutes (1977) expressly provides for the filing of a single petition in the circuit court in which the names and addresses of the delinquent personal property taxpayers are listed. The clerk of the circuit court is then required to notify each of the delinquent taxpayers by certified mail that a petition has been filed. As noted previously, in the instant case there are 390 such taxpayers. It is apparent that each taxpayer is interested only in that portion of the proceedings which directly affects his or her liability and has no interest in the portion of the proceedings which affects only another taxpayer. However, under the present posture, not only is petitioner forced to serve a copy of each pleading on every defendant, but also, each defendant filing a response to the petition would be obligated under the rules of civil procedure to serve a copy of such response (and all other pleadings) on every other party, i. e. every other defendant as well as upon the petitioner. Rule 1.080(c) of the Florida Rules of Civil Procedure is designed to prevent just such an onerous and unnecessary burden. Consequently, we find that the trial court’s denial of petitioner’s motion to limit service of pleadings constituted a departure from the essential requirements of law that would result in material injury throughout the remainder of the proceedings if not remedied.

We recognize that this court has consistently held that it will not grant certiorari to consider alleged errors committed in interlocutory orders when an adequate remedy is available by appeal after final judgment. Scheuer v. Wille, 370 So.2d 1166 (Fla. 4th DCA 1979); Lynch v. City of Deerfield Beach, 369 So.2d 1042 (Fla. 4th DCA 1979); Professional Medical Specialties, Inc. v. Renfroe, 362 So.2d 397 (Fla. 4th DCA 1978); Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976). However, if petitioner in the instant cause is forced to serve a copy of each pleading upon all 390 defendants, the harm will have been done and an appeal after final judgment would serve no useful purpose. Therefore, petitioner does not have an adequate remedy on plenary appeal.

Accordingly, certiorari is granted, the order under review is quashed and the cause remanded to the circuit court for entry of an order reasonably limiting service of pleadings pursuant to Fla.R.Civ.P. 1.080(c).

DOWNEY, C. J., and BERANEK, J., concur.


text:
    Robert S. ALDERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 78-2291.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 1980.
    Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender and Dennis Lopez, Legal Intern, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the revocation, but remand for correction of the order by deletion of any reference to condition four. Appellant need not be present for this purpose.

HOBSON, Acting C. J., BOARDMAN and OTT, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    Eustasio LOPEZ, Appellant, v. CARBOT CONSTRUCTION and Peninsular Fire Insurance Company, Appellees.
    No. QQ-161.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1980.
    Richard A. Sadow of Sadow & Lynne, North Miami, for appellant.
    John F. McMath, P. A., Miami, for appel-lees.
   PER CURIAM.

AFFIRMED.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author:
PER CURIAM.
      BOOTH, Judge,

text:
    Bessie Mae CARTER, Appellant, v. CITRUS CENTRAL, INC., and Professional Administrators, Inc., Appellees.
    No. QQ-166.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1980.
    David M. Hammond of Meyers, Mooney & Adler, Orlando, for appellant.
    Donna C. Wyatt of Cooper & Rissman, Orlando, for appellees.
   PER CURIAM.

Affirmed.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    FLORIDA HOSPITAL and New Hampshire Insurance Company, Appellants, v. Evelyn COON, Appellee.
    No. QQ-182.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1980.
    Paul W. Smalbein of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Daytona Beach, for appellants.
    David M. Hammond of Meyers, Mooney & Adler, P. A., Orlando, for appellee.
   PER CURIAM.

Affirmed.

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

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    MEDICAL CENTER OF KISSIMMEE and Insurance Company of North America, Appellants, v. Marie EGGERS, Appellee.
    No. QQ-209.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1980.
    Michael A. Miller and Donna L. Bergh, Orlando, for appellants.
    John M. Kest of Billings, Frederick, Wooten & Honeywell, P. A., Orlando, for appel-lee.
   PER CURIAM.

AFFIRMED.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    William WHITTED, Appellant, v. CITY OF SARASOTA and Employer’s Insurance Management, Appellees.
    No. QQ-231.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1980.
    James P. Judkins, of Davis & Judkins, Tallahassee, for appellant.
    John J. O’Riorden, of Dickinson, O'Rior-den, Gibbons, Quale, Shields & Carlton, P. A., Sarasota, for appellees.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and MeCORD, J., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: ORFINGER, Judge.

text:
    Rosemary SIRIANNI, Petitioner, v. Melvin C. COLEMAN, Sheriff of Orange County, Respondent.
    No. 79-383.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 1980.

      Frank E. Merrick of Law Offices of James M. Russ, Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for respondent.
   ORFINGER, Judge.

This is a Petition for Writ of Habeas Corpus wherein the Petitioner requests that this court set reasonable bail pending her re-trial on a charge of first degree murder.

Petitioner was indicted for first degree murder and held for trial without bail. After four days of deliberation, the trial jury could not reach a verdict, so on November 10, 1979, the trial judge declared a mistrial and discharged the jury.- The case has been re-set for trial on January 21, 1980. Following the mistrial, Petitioner’s counsel filed in the trial court a motion for admission to bail which, at the time the Petition for Writ of Habeas Corpus was filed here, had not been heard. However, a supplement to the Petition was filed showing that the trial court heard and denied the motion.

In denying the motion for bail, the trial court found, among other things, that there was substantial evidence that defendant carefully planned to kill the victim; that there was evidence of inculpatory statements made by defendant; that defendant had filed a document alleging insolvency; that defendant had no known ties to Florida or the local community, but had her roots elsewhere, and that defendant would be a poor risk if allowed to go free on bail pending her re-trial. He concluded that the proof was evident and the presumption great that defendant was guilty of murder in the first degree as charged, and he thereupon denied bail.

Neither the defendant nor the State offered additional evidence at the bail hearing. The State said it relied on the evidence and proofs presented at the trial. The defense did not object to this procedure, and it did not present to this court a transcript of the trial. The defendant asserts that the fact of the mistrial because the jury could not agree is sufficient evidence that the proof of guilt is not evident and that the presumption of guilt is not great. She also asserts that the State has the burden of showing that the proof of guilt is evident and the presumption is great. We disagree with both positions.

Until adjudged guilty, all persons charged with a crime are entitled to release on reasonable bail unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great. Art. I, Sec. 14, Fla.Const. (Deck of Rights); Rule 3.130, Fla.R.Cr.P. Where charged with a capital or life felony, the defendant has the burden of showing that the proof of guilt is not evident or the presumption great. Larkin v. State, 51 So.2d 185 (Fla.1951); State ex rel. Loper v. Stack, 291 So.2d 207 (Fla. 4th DCA, 1974). The defendant does not carry that burden simply by showing that her first trial resulted in a mistrial; the mistrial is merely one of the many factors to be considered by the trial judge in determining whether bail should be granted. Nix v. McCallister, 202 So.2d 1 (Fla. 1st DCA, 1967).

There is an excellent discussion of the history of bail in capital cases to be found in Arthur v. Harper, 371 So.2d 96 (Fla. 4th DCA 1978). There the court also held that a defendant charged with a capital or life felony had the burden of showing that the proof of guilt was not evident or the presumption great, and that in the absence of such showing, he was not entitled to bail as a matter of right. The court went further, however, and for the first time in Florida, held that even where proof of guilt was evident or the presumption great, the trial court had the discretion to release a defendant charged with such crime on reasonable bail. It emphasized that such release should not be routinely granted, “. but rather a heavy burden should be placed upon the defendant to clearly demonstrate that he is entitled to bail despite the gravity of the offense and the nature of the punishment he faces.” We need not decide if we will go as far as the Arthur court, because the defendant offered no testimony at the bail hearing upon which the trial court could have exercised its discretion. Instead, she relied solely upon the mistrial, and as we have already noted, this was not sufficient. To the contrary, the trial court found factors which would have prevented it from exercising its discretion to grant bail (assuming such discretion exists). The defendant is insolvent. She has no ties to the community where the trial is to be held; and she would be a “poor risk” if allowed to go free on bail, pending her re-trial.

The trial court specifically found, based on the evidence and proofs presented at the trial, that the proof of guilt was evident and the presumption of guilt was great. The defendant has failed to demonstrate that these findings are erroneous. The petition for writ of habeas corpus is

DENIED.

UPCHURCH and SHARP, JJ., concur.


text:
    QUALITY INN and Reliance Insurance Company, Appellants, v. Thomas E. GRUDECKI, Appellee.
    No. QQ-122.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1980.
    Patrick J. Murphy of Earle, Yanchuck & Thompson, P. A., Sarasota, for appellants.
    Thomas D. Masterson of Masterson, Rogers, Patterson, Masterson & Lowe, P.A., St. Petersburg, for appellee.
   PER CURIAM.

Affirmed.

MILLS, C. J.,' and McCORD, J., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    TECHNICOLOR GRAPHIC SERVICES, INC., and Fireman’s Fund Insurance Company, Appellants, v. Robert BRELAND, Appellee.
    No. QQ-175.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1980.
    Thomas M. Burke of Rumberger, Kirk & Caldwell, Orlando, for appellants.
    David M. Hammond of Meyers, Mooney & Adler, Orlando, for appellee.
   PER CURIAM.

Affirmed. See Magic City Bottle and Supply Co. v. Robinson, 116 So.2d 240 (Fla.1959).

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 278 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    Wayne Omar THOMPSON, Appellant, v. CITY OF TAMPA, Self-Insured, Appellee.
    No. QQ-265.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1980.
    Wayne Omar Thompson, pro se.
    James A. Sheehan, Tampa, for appellee.
   PER CURIAM.

Affirmed.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: LARRY G. SMITH, Judge.

text:
    John Lee MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. OO-19.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1980.

      Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Richard W. Prospect and Doris E. Jenkins, Asst. Attys. Gen., for appellee.
   LARRY G. SMITH, Judge.

Appellant appeals his conviction by a jury of the offense of grand theft. We reverse.

The information charged an offense under Section 812.014, Florida Statutes (1977), as follows:

“JOHN LEE MARTIN, on the 25th day of July, 1978 in the state and county aforesaid did unlawfully and feloniously obtain and use $200.00 cash of D. M. Brooks with the intent to deprive D. M. Brooks of a right to the cash or a benefit therefrom and to appropriate the cash to defendant’s own use, contrary to Florida Statutes 812.014.”

Appellant agreed to partially construct a small building for P. M. Brooks on property owned by Brooks. The agreement called for a down payment of $200.00, and payment of the sum of $150.00, plus delivery to appellant of a steam pressure washer on completion of the building. All materials to be used in the partial construction were to be furnished by appellant. A written memorandum briefly setting out the terms was signed by the parties on July 15, 1978, and Brooks’ son gave appellant a check for $200.00 on that date, which appellant promptly took and cashed at a nearby store. Although Brooks and his son testified the $200.00 was advanced to appellant to buy materials, both the written agreement and the check referred to the sum of $200.00 as a down payment.

The written agreement made no mention of the time for commencement of construction or completion of the building. Appellant had no materials delivered to the job site, never began construction, nor has he returned the $200.00 down payment. Testimony of Brooks and his son established that appellant was to begin construction one or two days after the payment of $200.00 and signing of the memorandum. Toward the middle or latter part of August 1978, Brooks had a telephone conversation with appellant in which appellant renewed his promise to start and complete the building within the next ten days or so, which was agreeable to Brooks. However, before appellant made any move to begin construction, and without any further contact from Brooks or demand for return of the down payment, a warrant for arrest of appellant on charge of grand theft was issued, and this prosecution began.

Appellant testified in his own defense that Brooks understood that he was working on another job at the time he made the agreement which would prevent him from starting immediately; that he fully intended to perform the contract, but had remained otherwise occupied on other business; that contrary to the testimony of Brooks, he had offered to return the down payment to Brooks during the August telephone conversation and that he was still willing to do so, but when the warrant was issued that “stopped everything”, because the case was then in charge of the court.

Appellant relies for reversal upon his contention that his motions for judgment of acquittal made at the close of the State’s, case, and at the conclusion of all testimony, should have been granted, relying primarily upon Ricard v. State, 181 So.2d 677 (Fla. 3rd DCA 1966), and Edwards v. State, 226 So.2d 140 (Fla. 2nd DCA 1969). In Ricard the State proved that the victim gave the defendant money to open an account in Jamaica for the purpose of aiding the victim’s Cuban husband in his attempt to obtain a visa to that island. The victim later discovered the money was not needed and demanded its return. The money had not been deposited in the bank in Jamaica, but defendant concealed this fact from her, and even prepared in her presence a “fake” cablegram for transmission to the Jamaica bank, although there was no equipment for sending cables in defendant’s office at that time. No money was ever sent to a bank in Jamaica. Defendant testified that it was impossible to send money to Jamaica, and that he instead used a correspondent in Mexico City, to whom he sent the money. Later it developed that he was unable to contact his correspondent in Mexico City. In reversing Ricard’s conviction, the court determined that since the evidence upon which the State relied proved only that the defendant received the money, and that no bank account was ever opened, the evidence was insufficient to establish defendant’s guilt beyond all reasonable doubt, there being no proof that the defendant appropriated the money to his own use, or that of another person other than the true owner.

Similarly, in Edwards v. State, supra, several persons gave the defendant money for the purpose of acquiring a radio station. A corporation was to be formed and the monies were to be deposited into a corporate bank account by the defendant. The State proved that the money was given to the defendant, and that no bank account was ever opened. However, there was no proof that defendant had expended any of the money. It was held that the State failed to establish a prima facie case of grand larceny, and the court therefore reversed the conviction, holding that the lower court should have granted the motion for directed verdict at the close of the State’s case.

Although the proof in the instant case may be said to suffer from the same deficiency as in the Ricard and Edwards cases, we find other authorities upon which to base reversal of the conviction. We first note that under the amendments to the larceny statute, Section 812.014, Florida Statutes (1977), a variety of offenses relating to the unlawful appropriation of property are now included in the single crime called “theft”. Thus, under the “definitions” section (Section 812.012(2)(a), (b), (c), (d), 1 and 2), the offense now includes any unauthorized use, obtaining property by fraud, conduct previously known as stealing, larceny, embezzlement, misapplication, misappropriation, conversion, or obtaining money or property by false pretenses, fraud or deception; and other conduct similar in nature. We therefore have considered the evidence to determine its sufficiency to prove the crime of “theft” in any of its forms.

As in Youngker v. State, 215 So.2d 318 (Fla. 4th DCA 1968), the evidence here will not sustain a conviction of larceny in the common law sense because no “taking” has been shown. The money was voluntarily given to appellant pursuant to his contract with P. M. Brooks. Although appellant failed to perform the contract, there was no unlawful “taking” of the money. The Youngker case also considered whether the defendant could have been convicted under the statute proscribing the obtaining of property “by color or aid of fraudulent or false representations or pretense” (Section 811.021, Florida Statutes (1963)). The State argued there, as here, that at the time the defendant made his promises he did not intend to perform them; ergo, the defendant made a false representation of his then present intentions. The Youngker court rejected these contentions, stating that the most the evidence showed was that the defendant “made unfulfilled promises to pay for certain labor and materials”. The court pointed out that a false representation of a past or existing fact is essential to a conviction under the statutes; and, a promise to do something in the future, even though it be a false promise, is not a representation of a past or existing fact and will not support a conviction for false pretenses. We find this to be the settled law in this State. Colangelo v. State, 320 So.2d 826 (Fla. 4th DCA 1975); Waterman v. State, 317 So.2d 469 (Fla. 4th DCA 1975); Scarlett v. State, 25 Fla. 717, 6 So. 767 (Fla.1889).

We also find the evidence insufficient to constitute a crime under the theory of “conversion”, or “embezzlement”, or crimes of a like nature. In Berney v. State, 38 So.2d 55 (Fla.1948), a case factually similar to this one, the evidence proved that defendant entered into a written contract to supply all materials and labor to erect a completed building according to certain plans and specifications. Under the contract, an initial payment of $2,500.00 became due on the date of signing. Pursuant to the contract the contracting party paid to defendant the sum of $1,135.00 as a part of the initial payment, upon the representation that defendant would use the money for the purpose of purchasing steel to be used in the building. Instead of purchasing the steel, the defendant pocketed the sum advanced and disappeared without returning the money, furnishing materials to or commencing work on the building. The Supreme Court of Florida reversed defendant’s conviction of embezzlement, stating, among other things:

“The State has failed to prove that the money was property belonging to the prosecuting witness, because under the facts of the case the money paid over did not retain its character as property of the prosecuting witness after it had been placed in the hands of the appellant, but became, in law, the property of the appellant as partial payment on the contract; . ” (opinion page 57)

In view of the insufficiency of the proof, under the foregoing authorities, we reverse appellant’s conviction of grand theft. It becomes unnecessary for us to consider the remaining point on appeal.

The judgment of conviction and sentence appealed from are hereby reversed, and appellant is ordered discharged.

ROBERT P. SMITH, Jr., and WENT-WORTH, JJ., concur.

      . It is noted, however, that the case went to the jiiry on instructions describing the offense only in general terms as used in the enacting clause proscribing the offense, Section 812.014, Florida Statutes. The court charged the jury:
      “A person is guilty of theft if he knowingly obtains or uses or endeavors to obtain or use the property of another with intent,
      A. To deprive the other person of a right to the property or a benefit therefrom, or
      B. To appropriate the property to his own use or to the use of any other person not entitled thereto.
      ******
      “The intention to commit grand theft, that is to feloniously appropriate another’s property to his own use or to deprive the owner permanently of his property, is a question of fact to be determined by the jury and is an essential element in the crime of grand theft.”


text:
    Doyle M. DUNCAN, Appellant, v. STATE of Florida, DEPARTMENT OF INSURANCE BRADENTON SERVICE OFFICE, DIVISION OF RISK MANAGEMENT, Appellees.
    No. QQ-125.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1980.

      Richard A. Bokor, Tampa, for appellant.
    John J. O’Riorden of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota, for appellees.
   PER CURIAM.

Affirmed. Richards Department Store v. Donin, 365 So.2d 385 (Fla.1978).

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    SPECIAL DISABILITY TRUST FUND, Appellant, v. B & F LAND DESIGN CORPORATION and American Mutual Liability Insurance Company, Appellees.
    No. QQ-133.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1980.
    Claire D. Dryfuss and Peter K. Mislovic, Tallahassee, for appellant.
    Thomas R. Trompeter and Underwood, Giller, Karcher, Reinert & Valle, P. A., Miami, for appellees.
   PER CURIAM.

The Special Disability Trust Fund seeks review of the order of the judge of industrial claims wherein the judge granted the carrier’s claim for reimbursement under Section 440.49, Florida Statutes (1977). The carrier concedes that the provision in the decretal portion of the order requiring the Fund to pay the costs of the proceedings is erroneous. Accordingly, that provision is hereby deleted. The carrier further concedes that the first paragraph of the decretal portion of the order reflects a scrivener’s error which should be modified. That portion is accordingly modified to reflect the following:

the pro-rata share shall be that percentage which the amount over 17% of the body as a whole bears to the 70% disability now suffered by the claimant, or 53/70’s said benefits or 75.5%.

We note that these errors could properly have been called to the attention of the judge. As modified, the order is affirmed.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    STARCRETE INTERNATIONAL INDUSTRIES, and Firemen’s Fund Insurance Company, Appellants, v. Rafael A. LOPEZ, Appellee.
    No. QQ-340.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1980.
    Robert Marvin Todd of Lyle & Skipper, St. Petersburg, for appellants.

      L. C. Schowe, St. Petersburg, for appel-lee.
   PER CURIAM.

Affirmed.

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

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    POTLATCH CORPORATION, Appellant, v. Sylvester A. STEVENS and Unemployment Appeals Commission, Division of Employment Security, Appellees.
    No. OO-81.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1980.
    Stephen A. Hould of Smathers & Thompson, Jacksonville, for appellant.
    James R. Parks and John L. Briscoe, Tallahassee, for appellees.
   PER CURIAM.

The commission’s order is supported by substantial competent evidence. The notice of hearing issued by the appeals referee had no tendency to mislead the employer' concerning the issues to be determined or the employer’s opportunity and need to produce a witness with knowledge of the September 15, 1978 occurrence which led to Stevens’ discharge. The appeals referee’s finding was, in effect, that Stevens did not willfully violate safety rules but rode the “jack” temporarily to avoid damage to the employer’s paper stock being transported through swinging doors. The order is

AFFIRMED.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    Julian A. PARRISH, Ottis C. Parrish, Ray G. Dennis, and Elsie Dennis, Appellants, v. Thomas SWEARINGTON, Appellee.
    No. 00-144.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1980.
    Bill A. Corbin, Blountstown, for appellants.
    Steven Seliger, Tallahassee, for appellee.
   PER CURIAM.

The appellant, Julian A. Parrish a registered real estate broker, and his wife, Ottis C. Parrish, owned, by the entireties, a large tract of land in Calhoun County, Florida. In August of 1977, the appellee, Thomas Swearington, entered into an oral agreement with the appellant, Julian Parrish, to purchase a portion of said land and, pursuant to the agreement, Swearington made a down payment of $240, moved his family onto the property where they have continuously resided, and made monthly payments of $49.78 towards the purchase price. Julian and Ottis Parrish subsequently sold to Ray G. Dennis and Elsie Dennis a large tract of land which included the land occupied by Swearington. The trial judge found that Swearington was entitled to specific performance of his oral agreement and ordered the appellants, Julian A. and Ottis C. Parrish, to execute a writing setting forth the terms of said agreement.

It is well-established law in Florida that a husband and wife owning property in an estate by the entireties must join in any conveyance thereof. Neither spouse alone can do anything to alter the tenancy of identifiable property held by the entireties. Although it is true that the estate held by spouses in an estate by the entireties is one per tout et non per my, they are still two owners of the property, and both must join in a conveyance of it and since an estate by the entireties is vested in husband and wife as one person, neither spouse can sell, forfeit or encumber any part of the estate without the consent of the other, nor can one spouse alone lease it or contract for its disposition. 17 Fla.Jur., Husband and Wife, § 27, pp. 86-87.

The record before us will not support the circuit judge’s finding that “an oral agreement exists between plaintiff and defendants, Julian A. and Ottis C. Parrish .” There is an absence of competent substantial evidence that Ottis Parrish was a party to, participated in, or was aware of the agreement between her husband and the appellee. The challenged order, if it is to survive, must find support in some theory of law other than joinder of spouses in conveyance of jointly held property. The principle of estoppel may be invoked against a married woman who knowingly permits her husband to manage or control her property, or allows him to deal with it so as to induce others to believe that he is acting as her authorized agent. 17 Fla.Jur. Husband and Wife, § 38. The instant record is not demonstrative of such a relationship however as evidenced by the Parrishes’ denial of any such arrangement and the appellee’s inability to produce evidence to the contrary:

Q. (By Mr. Corbin) Do you have any information to offer the court concerning this alledged (sic) agency agreement between Julian and Otis (sic) ?
A. (By Swearington) No, sir.
Q. You have no other information to supply the court?
A. No.
Q. Do you have any similar information concerning an agency agreement between Julian Parrish and Jerry C. Parrish?
A. No, sir.
Q. Do you have any information to offer the court concerning the same type agency agreement between Julian Parrish and Norma B. Parrish?
A. No, sir.
Q. Do you know anybody that has any information concerning these al-ledged (sic) agency agreements?
A. No, sir.

We are unable to find in the present record any competent evidence that will support a finding that Ottis Parrish joined with her husband in an oral agreement to convey jointly owned property. We are also unable to find any basis for departing from the general law of Florida which precludes one spouse from conveying property held by the entireties without the consent of the other spouse. The order is accordingly reversed and the cause is remanded to the circuit judge for further consideration in light of this opinion thereby rendering moot the remaining issues.

ERVIN, SHAW and WENTWORTH, JJ., concur.


text:
    Roger Warren STONER, Appellant, v. Bill GUNTER, Insurance Commissioner and Treasurer, Appellee.
    No. OO-462.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1980.

      Roger Warren Stoner, pro se.
    Edward L. Kutter, Tallahassee, for appel-lee.
   PER CURIAM.

The Insurance Commissioner’s declaratory statement, interpreting section 626.837, Florida Statutes (1979), in its application to appellant Stoner, does not violate APA rulemaking requirements. The meaning ascribed to the statute by the Insurance Commissioner is supported by the text and statutory history, and no error in the declaratory statement is shown.

AFFIRMED.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    ITT CONTINENTAL BAKING COMPANY and Liberty Mutual Insurance Company, Appellants, v. Eufemio CHAVEZ, Appellee.
    No. QQ-61.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1980.
    Ted R. Manry, III, and Richard A. Valeri, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    Lawrence H. Samaha, Tampa, for appel-lee.
   PER CURIAM.

AFFIRMED.

ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.

BOOTH, J., dissents.


text:
    Jesse C. CHESTER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1135.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1980.
    Jesse C. Chester, in pro. per.
    Jim Smith, Atty. Gen., and Susan C. Minor, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850, this court having required response by the State and having considered the record presented and the State’s response and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


text:
    INTERNATIONAL AIRPORT HOTEL SYSTEM, INC., a Florida Corporation, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, et al., Appellees.
    No. 79-256.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1980.
    Steel, Hector & Davis and Darrey A. Davis, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and Robert L. Krawcheck, Asst. County Atty., Steven A. Schultz, Miami, for appellees.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The final summary judgment under review which, in turn, incorporates a prior summary judgment order on one aspect of this case, is affirmed based on the authorities and reasoning stated by the trial court in said final judgment and order.


text:
    Manuel Armando POZO, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1022.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1980.
    George Nicholas, John H. Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Salas v. State, 246 So.2d 621 (Fla. 3d DCA 1971); Sheff v. State, 329 So.2d 270 (Fla.1976); Smith v. State, 363 So.2d 21 (Fla. 3d DCA 1978); Sections 901.15, 901.151, Florida Statutes (1977).


text:
    In re ESTATE OF Joseph HEIN, Deceased. Helen HEIN, Appellant, v. Harold HEIN, Appellee.
    No. 79-1053.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1980.

      Bartel & Shuford and Stanley Jay Bartel, Miami, for appellant.
    Truett & Watkins, Miami, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. In re McDougald’s Estate, 149 Fla. 468, 6 So.2d 274 (1942); Pancoast v. Pancoast, 97 So.2d 875 (Fla. 2d DCA 1957); In re Parker’s Estate, 110 So.2d 498 (Fla. 1st DCA 1959); In re Mullen’s Estate, 133 So.2d 468 (Fla. 2d DCA 1961).


text:
    Elena Z. VILLASANA and Leslie Villasana Cortes, Appellants, v. Stanley H. DRILLICK and Beatrice Drillick, his wife, and Florida Master Antenna System, Inc., Appellees.
    No. 79-1247.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1980.
    Rehearing Denied Feb. 15, 1980.
    Weinstein & Bavly and Arthur J. Mor-burger, Miami, for appellants.
    Stanley L. Seligman and Kenneth F. San-dler, Hollywood, for appellees.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Snowden v. Sprouse, 375 So.2d 901 (Fla. 1st DCA 1979); Warth Paint Co., Inc. v. Jackson, 368 So.2d 443 (Fla. 3d DCA 1979).


text:
    Priscilla McMASTER, Wife, Appellant, v. Joseph Robb McMASTER, Husband, Appellee.
    No. 77-2643.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1980.

      Bruce W. Parrish, Jr., of O’Connell & Cooper, West Palm Beach, for appellant.
    Gene Moore, Boynton Beach, for appellee.
   MOORE, Judge.

The parties to this dissolution of marriage action were married approximately eight years and had one child, age six, at the time of the dissolution. The appellant-wife appeals from the final judgment, which was modified on rehearing. She argues alternatively that the court should have awarded her the husband’s interest in the marital home as lump sum alimony or it should have granted her exclusive possession of the marital home. We reverse in part.

In the final order, as modified, the trial court awarded -«the wife, among other things, the custody of the child, alimony of $90.00 per week and child support of $35.00 per week. She was awarded possession of the marital home only until the parties reached an agreement regarding its sale, or until the property was judicially partitioned. The husband was ordered to pay all mortgage payments, insurance and taxes on the marital home until it was sold or partitioned, at which time he was to be credited for the principal reduction of the mortgage.

Under appropriate circumstances, a wife may be awarded the husband’s interest in a marital home as lump sum alimony. Our review of the record in the instant case fails to indicate any justification for such an award. Nevertheless, it is well established that a wife may be entitled to exclusive use and occupancy of the marital home formerly held as a tenancy by the entirety, as long as she remains unmarried and uses the home as a residence for herself and minor children who are dependent upon the parties for support. Bianchini v. Bianchini, 374 So.2d 620 (Fla. 4th DCA 1979); Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977).

We recognize that the trial court was dealing with a difficult situation because the upkeep of the marital home was expensive and, in his opinion, not within the means of the parties. In addition, the home was being wasted. Nevertheless, the record reflects that the husband had a gross income of approximately $750.00 per week, out of which he was ordered to pay the alimony, child support, mortgage payments, insurance and taxes. On the other hand, the wife was unemployed and had no income. In view of their respective financial positions, the trial court should have awarded the wife exclusive use and occupancy of the marital home for as long as she remains unmarried and continues to use the home as a residence for herself and the minor, dependent, unmarried child. In our judgment, the trial court abused its discretion in limiting the wife’s exclusive use and occupancy only until the parties agreed to a sale of the property or until the property was judicially partitioned. See Singer v. Singer, supra.

During the course of the proceedings in the trial court a lien for attorneys fees was impressed upon the proceeds of any recovery by the wife in favor of her former attorneys who withdrew during the course of the litigation. The parties have now stipulated that the lien should be quashed and voided. Accordingly, on remand, the trial court should quash and void the lien in favor of appellant’s former attorneys.

In all other respects, the final order of dissolution of marriage, as modified on rehearing, is affirmed, and this cause is remanded to the trial court with directions to enter an amended final judgment consistent with the views expressed herein.

REVERSED IN PART and AFFIRMED IN PART.

LETTS, J., and MIETTE K. BURN-STEIN, Associate Judge, concur.


text:
    Raymond CRESPO, Appellant, v. STATE of Florida, Appellee.
    No. 78-785.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1980.
    Rehearing Denied Feb. 20, 1980.
    Richard L. Jorandby, Public Defender, and Sara Bresky Blumberg, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals contending that the admission of certain Williams Rule evidence of other crimes was improper and requires reversal of his conviction below. We affirm.

The transcript of testimony discloses that no adequate objection to the testimony in question was made. Defendant did file a motion in limine regarding this testimony which was denied prior to trial. The rule requiring a contemporaneous objection at trial under such circumstances is firmly established. Jones v. State, 360 So.2d 1293 (Fla. 3d DCA 1978); O’Berry v. Wainwright, 300 So.2d 740 (Fla. 4th DCA 1974). We are thus unable to consider defendant’s arguments unless the admission of the evidence in question constituted fundamental error. We conclude that such is not the case. Marion v. State, 287 So.2d 419 (Fla. 4th DCA 1974). Also see Clark v. State, 363 So.2d 331 (Fla.1978). We thus conclude that the appellant has failed to demonstrate reversible error and the judgment and conviction below is affirmed.

AFFIRMED.

BERANEK, HERSEY and HURLEY, JJ., concur.


text:
    LASSITER CONSTRUCTION CO., INC., f/k/a Lee Lin Builders, Inc., Appellant, v. ST. LUCIE COUNTY, etc., Appellee.
    No. 78-1572.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1980.

      Alexander Myers and James R. Rich of Christiansen, Jacknin & Myers, Palm Beach, for appellant.
    C. R. McDonald, Jr., and Jacqueline L. Russakis of McDonald, Kenney & Russakis Professional Association, Fort Pierce, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY, C. J., and ANSTEAD and MOORE, JJ., concur.


text:
    Maria STEWART, Appellant, v. Coleman B. STEWART, Appellee.
    No. 78-1908.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1980.
    Harry G. Carratt of Morgan, Carratt & O’Connor, Fort Lauderdale, for appellant.
    Walter M. Dingwall of Dingwall & Morgan, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY, C. J., and ANSTEAD and MOORE, JJ., concur.


text:
    Ronald Allen OGLE, Appellant, v. Barbara Lee OGLE, Appellee.
    No. 78-2604.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1980.
    Alan S. Fishman of Robert D. Hurth, P. A., Fort Lauderdale, for appellant.
    Barry P. Billington of Thomas & Billing-ton, Pompano Beach, for appellee.
   PER CURIAM.

AFFIRMED.

BERANEK, HERSEY and GLICK-STEIN, JJ., concur.


text:
    Carmin SUNDIN, Appellant, v. STATE of Florida, Appellee.
    No. 78-2744.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1980.
    Richard L. Jorandby, Public Defender, and Denise J. Banjavic, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

BERANEK, HERSEY and GLICK-STEIN, JJ., concur.


text:
    Darlene Calhoun KEELS, Appellant, v. STATE of Florida, Appellee.
    No. 79-499.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1980.
    Richard L. Jorandby, Public Defender, and Martin H. Colin, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

BERANEK, HERSEY and GLICK-STEIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Johnny Lee BURTON, Appellee.
    No. 79-1026.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1980.
    Michael J. Satz, State’s Atty., Seventeenth Judicial Circuit, and Patti England-er, Asst. State’s Atty., Fort Lauderdale, for appellant.
    J. David Bogenschutz of Varón & Stahl, P.A., Hollywood, for appellee.
   PER CURIAM.

Affirmed.

DOWNEY, C. J., and ANSTEAD and MOORE, JJ., concur.


text:
    Harry HARTMAN and Marilyn Hartman, Petitioners, v. Leonard COHEN, etc., Respondent.
    No. 79-1999.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1980.
    Jerry B. Schreiber, Miami, for petitioners.
    J. T. Haley of Friedman, Britton, Cohen, Kaufman, Zinkow, Benson & Schantz, Miami, for respondent.
   PER CURIAM.

By order of November 21, 1979, this court directed that the respondent show cause why the petitioners’ petition for writ of certiorari should not be granted. The respondent has filed no response. The petitioners seek relief from an order denying their motion to dissolve a lis pendens or alternatively to require the posting of a bond. Our review of the record filed herein reveals no basis for a valid lis pendens to be filed. For that reason, and the respondent having failed to otherwise show cause why the petition should not be granted, it is hereby ordered that the petition is granted and the order of August 16, 1979, is hereby quashed and this cause is remanded to the trial court for further proceedings consistent herewith.

ANSTEAD, LETTS and BERANEK, JJ., concur.


author: SHARP, Judge.

text:
    Sonney HEATH, Appellant, v. STATE of Florida, Appellee.
    No. 77-2670/T4-35.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 1980.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, and Denise Banjavic, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   SHARP, Judge.

This appeal is from a conviction of first degree murder entered on December 9, 1977. The appellant was sentenced to a minimum of 25 years to life, with credit for time served. The conviction was based on a nolo contendere plea with reservation of the right to appeal the trial court’s denial of the appellant’s Motion to Suppress a Confession. As was done in Brown v. State, 376 So.2d 382 (Fla.1979), this cause is remanded to the Circuit Court for the purpose of affording the appellant the opportunity of withdrawing his plea of nolo contendere, and pleading anew, if he so desires. See Rouch v. State, 378 So.2d 1302 (Fla. 5th DCA 1980); and Berry v. State, 378 So.2d 1303 (Fla. 5th DCA 1980).

REMANDED TO TRIAL COURT.

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


author: COBB, Judge.

text:
    John Anthony HADDOCK, Appellant, v. STATE of Florida, Appellee.
    No. 78-1291/T4-136.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 1980.

      Richard L. Jorandby, Public Defender, and Larry S. Weaver, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   COBB, Judge.

Appellant was convicted of aggravated battery and appeals from the judgment and sentence. The four issues raised are: (1) whether the trial court erred in refusing to instruct the jury on the law of circumstantial evidence upon appellant’s request; (2) whether the trial court erred in denying appellant’s motion to dismiss and in allowing the jury to consider the charge of aggravated battery; (3) whether the jury verdict was contrary to the evidence and the law; and (4) whether the trial court erred in denying a motion to discharge for violation of the speedy trial rule.

Appellant was sleeping in his girlfriend’s apartment when he was awakened by a scream. He rushed to the dining room, where he was struck on the head by the intruder, an ex-boyfriend. Appellant fought back, grabbed a knife and stabbed the ex-boyfriend.

The ex-boyfriend retreated out the back door and ran. Appellant gave chase. After running approximately 340 feet, the victim turned to fight. Appellant stabbed him again. The victim died. A medical expert testified that the victim could have run the 340 feet after receiving two fatal stab wounds.

Appellant was taken into custody on July 25, 1977. On September 19, 1977, the Grand Jury returned an indictment charging appellant with manslaughter. On December 16, 1977 a joint motion for continuance and waiver of speedy trial was filed. On February 10, 1978, the state filed a two-count information charging appellant with manslaughter and aggravated battery. Appellant’s motion to discharge and motion to dismiss were denied on March 3 and 8, 1978, respectively. On March 10, 1978, appellant was tried by jury and convicted of aggravated battery as charged in Count II of the information.

We find no reversible error concerning the first three points raised on appeal, but agree with appellant that reversal is required based on the speedy trial rule.

As for the first point on appeal, the record shows that two eyewitnesses, appellant and the girlfriend, testified. Where such direct evidence is available it was not reversible error for the trial court to refuse to charge on circumstantial evidence. State v. Anderson, 270 So.2d 353 (Fla.1972).

Appellant’s argument that the trial court erred by instructing the jury on the charge of aggravated battery is based on Martin v. State, 342 So.2d 501 (Fla.1977), where the court held that in homicide cases, proper instructions are limited to those charges involving lawful and unlawful homicide. The present case is distinguishable. In Martin, there was a one-count charge of manslaughter and an aggravated assault occurred as part of the same crime that culminated in the death of the victim. Here, appellant was charged with two separate crimes in a two-count information. It was proper for the jury to consider whether a lawful or unlawful homicide occurred and whether a subsequent aggravated battery occurred. See Evans v. State, 197 So.2d 323 (Fla.3d DCA 1967).

Appellant argues that since the jury did not find an unlawful homicide, it is inconsistent for the jury to find that the act causing the death was an aggravated battery. However, as the state points out, the jury could have found that the fatal stab wounds occurred during the initial struggle inside the house, but that this homicide was not unlawful. The jury could also have reasonably concluded that appellant’s struggle with the victim outside the house constituted a separate crime of aggravated battery. In determining whether there is sufficient evidence to support the conclusion of the trier of fact, an appellate court need only find substantial, competent evidence to support the verdict. Fernandez v. State, 328 So.2d 508 (Fla.3d DCA 1976), cert. denied, 341 So.2d 1081 (Fla.1976); Donnell v. State, 326 So.2d 256 (Fla.3d DCA 1976).

We agree with appellant that there was no waiver of the right to a speedy trial under Fla.R.Crim.P. 3.191 as to the aggravated battery count. There was a waiver of speedy trial as to the indictment for manslaughter, which could have carried over to a subsequently filed information charging manslaughter. In State v. Boyd, 368 So.2d 54 (Fla.2d DCA 1979) the court held that where the defendant waived speedy trial, the waiver applied to a subsequently filed information which charged defendant with the same criminal conduct as did two original informations. This case is distinguishable since the aggravated battery conviction here must be considered based on a separate crime in order to sustain the jury’s verdict as well as the aggravated battery instruction. Since appellant was not brought to trial within 180 days of being taken into custody, the motion for discharge should have been granted. The aggravated battery conviction is reversed.

REVERSED and REMANDED for discharge of defendant.

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


author: UPCHURCH, Judge.

text:
    Robin Lee DANIELS, Petitioner, v. The Honorable Thomas E. KIRKLAND, Circuit Judge, in and for the Ninth Judicial Circuit of Orange County, Florida, Respondent.
    No. 79-141.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 1980.
    James K. Freeland, Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for respondent.
   UPCHURCH, Judge.

This is an original proceeding on suggestion for Writ of Prohibition which raises questions under Section 914.04, Florida Statutes (1977).

Robin Lee Daniels had been charged with burglary in two counts by information filed in the Circuit Court of Orange County. He had also been charged in the County Court of that County with the misdemeanor of false official statement. By order dated July 20, 1979, the felony charges and the misdemeanor were consolidated in the Circuit Court for trial.

Petitioner Daniels, by motion, sought to have all charges dismissed on the grounds that he had been granted immunity under Florida Statute 914.04. He had been served by the State Attorney with an investigative subpoena and required to testify concerning the burglaries with which he was subsequently charged.

Prohibition is ordinarily an appropriate remedy in these circumstances. Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977). The State contends that it is not appropriate because petitioner perjured himself and therefore transactional immunity never attached.

Two questions are presented. First, does the defendant by committing perjury during the investigative statement thereby waive the immunity granted by the Statute? Second, does the immunity also apply to the perjury?

At the time of filing the information in the Circuit Court, petitioner had not been convicted of perjury, or the misdemeanor, false official statement. Section 914.04 is specific:

. no person, having been duly served with a subpoena . . ., shall be excused from attending and testifying ., but no person shall be prosecuted or subjected to any penalty or forfeiture for or an account of any transaction, matter, or thing concerning which he may so testify or produce evidence,

The Assistant State Attorney acknowledges that he advised Daniels that having been served with an investigative subpoena he was required to testify, but that he would be immune from prosecution.

If we accept the State’s position, Daniels would be tried in a single trial for the burglaries revealed by the investigation and the official false statement made during that investigation. The jury could possibly conclude that petitioner was guilty of the burglaries, but innocent of the false statement. In that event, there should have been no prosecution because there was no perjury and therefore, no waiver.

The State is not obligated to use this Statute, but once it elects, ahd testimony or other evidence is compelled, immunity from penalty or prosecution is afforded to the witness. This immunity does not apply to prosecution for false statement made during that investigation. Gordon v. State, 104 So.2d 524, 532 (Fla.1958).

As to the burglaries charged by the State in the information filed June 19, 1979, which burglaries were alleged to have occurred between January 17, 1979 and January 20, 1979, the petitioner has been immunized from prosecution; therefore, we must issue our Writ of Prohibition and require the trial court to enter judgment for the petitioner on those charges. We decline to prohibit prosecution for the charge of false official statements because no immunity attached as to that alleged misconduct. Writ of Prohibition is issued and we remand this cause for further proceedings not inconsistent herewith.

Writ of Prohibition issued.

DAUKSCH, C. J., concurs.

CROSS, J., dissents without opinion.

      . State ex rel. Foster v. Hall, 230 So.2d 722, 723 (Fla. 2d DCA 1970).


text:
    Joseph F. WOJTAN, Appellant, v. HERNANDO COUNTY, etc., Appellee.
    No. 79-150/T2-9.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 1980.

      H. Shelton Philips, of Kaleel & Kaleel, P.A., St. Petersburg, for appellant.
    Samuel R. Neel, III, of McClain & Walk-ley, Tampa, for appellee.
   ORFINGER, Judge.

This is an action for damages wherein Appellant alleged that on June 2, 1976, the Appellee county carelessly and negligently maintained a certain county road and its shoulders which it had a duty to maintain in good, safe, condition; that because of Ap-pellee’s negligence the Appellant, while operating a motor vehicle along said roadway, was injured.

The trial court granted a motion for judgment on the pleadings on the ground that Appellant had neither alleged nor demonstrated a duty owed to him that was different from .the duty owed to the citizens of the county in general. Final judgment on the pleadings was entered, and from this judgment Appellant appeals.

Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), was not available to the trial judge at the time he ruled in this case and that decision makes it clear that the maintenance of a roadway and its shoulders is “operational level activity” for which sovereign immunity for tort liability has been waived under § 768.28, F.S.

The final judgment is reversed and the cause is remanded to the trial court for further proceedings in accordance herewith.

REVERSED and REMANDED.

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


text:
    Harold J. COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 79-453.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 1980.

      Harold J. Cooper, in pro. per.
    No appearance for appellee.
   COBB, Judge.

This appeal is from a summary denial of a Florida Rule of Criminal Procedure 3.850 motion for reduction of sentence. Cooper alleged that in 1966 he was given an indeterminate sentence of six months to fifteen years for the crime of breaking and entering with intent to commit grand larceny, that his sentence did not include credit for 170 days served prior to sentencing, and that he was held in jail the entire period solely because of indigency.

A defendant who was indigent and unable to post bond during the term of his incarceration prior to sentencing must be given credit for jail time when the maximum sentence was imposed. Hill v. Wainwright, 465 F.2d 414 (5th Cir. 1972); Cf. Cobb v. Bailey, 469 F.2d 1068 (5th Cir. 1972) (non-bailable offense affords no constitutional right for credit where indigency is irrelevant). Even if a defendant is sentenced to less than the maximum, the inability of an indigent criminal defendant to make bond should not result in extending the duration of his imprisonment beyond the statutory maximum. Matthews v. Dees, 579 F.2d 929 (5th Cir. 1978) (held petitioner entitled to credit for portion of pre-sentence confinement so that total incarceration would not exceed twenty years, where petitioner was sentenced to nineteen years, twenty years being the maximum); see also Ham v. State of North Carolina, 471 F.2d 406 (4th Cir. 1973). There is a federal constitutional right not to be subjected to imprisonment beyond the statutory maximum solely because of indigency. See Williams v. Illinois, 399 U.S. 235, at 241-242, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). “[I]t is the excess of total imprisonment over the statutory maximum with which the courts are concerned.” Matthews v. Dees, supra at 931; see also Wilson v. State, 358 So.2d 31 (Fla. 4th DCA 1978); Gelis v. State, 287 So.2d 368, 369 (Fla. 2d DCA 1973).

We hold that the summary denial of Cooper’s petition for postconviction relief was erroneous. Accordingly, the order denying hearing is vacated and this cause is remanded with directions that the trial court, within thirty days from the date hereof, determine the indigency issue and, if appropriate, correct the sentence by crediting the 170 days.

VACATED and REMANDED.

UPCHURCH and SHARP, JJ., concur.


text:
    Mark COOPER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2304.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 1980.
    Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and NESBITT, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on March 28, 1978 356 So.2d 911 (Fla.3d DCA 1978) affirming the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 377 So.2d 1153, by its opinion and judgment filed November 21, 1979 and mandate now lodged in this court, quashed this court’s judgment with directions.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on April 13,1978 is withdrawn the judgment of this court filed in this cause on March 28, 1978 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment and sentence appealed from herein is reversed and the cause is remanded to the trial court for a new trial. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Appellate Procedure Rules).