text:
    Felix RUIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1244.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven L. Bo-lotin, Asst. Atty. Gen., for appellee.

      Before NESBITT, BASKIN and DANIEL PEARSON, JJ.
   NESBITT, Judge.

By this appeal, the defendant challenges: (1) the sufficiency of the evidence to support revocation of his probation; and (2) the failure of the trial court to make the required findings of fact that he was an habitual offender so as to subject him to an enhanced penalty pursuant to Section 775.-084, Florida Statutes (1977).

On June 9, 1976, the defendant entered a negotiated plea to an information charging him with: (a) attempted breaking and entering and (b) assault and battery, for which he received a split sentence of six months in the Dade County Stockade followed by a three-year period of probation.

On April 18, 1978, an amended affidavit of violation of probation was filed against the defendant charging him with: (1) being an accessory after the fact to the offense of murder; and (2) burglary of a home. Following an evidentiary hearing on the probation violations, the trial court found him guilty on both grounds of probation violations, as alleged. A review of the record satisfies us that the state sustained its burden in establishing evidence as to both grounds by the greater weight of the evidence. Wheeler v. State, 344 So.2d 630 (Fla.2d DCA 1977).

Following revocation of probation, the state, in a separate proceeding, and by written notice, charged the defendant with being an habitual offender and alleged that an extended prison term was necessary for the protection of the public as required by Section 775.084(3), Florida Statutes (1977); see Grey v. State, 362 So.2d 425 (Fla.4th DCA 1978). In that proceeding, the state adduced proof demonstrating a sufficient basis so as to permit the trial court to sentence the defendant to an enhanced sentence as an habitual offender. Grimmett v. State, 357 So.2d 461 (Fla.2d DCA 1978); Chukes v. State, 334 So.2d 289 (Fla.4th DCA 1976).

In Eutsey v. State, 383 So.2d 219 (Fla.1980), our Supreme Court upheld the constitutionality of the enhanced sentence prescribed by Section 775.084, supra. In Eutsey, the Court held that the requisite findings as a basis for the enhanced sentence need not be made in writing but may orally be dictated in the record. The record in this case discloses neither written findings nor oral findings sufficient to support the imposition of an enhanced sentence upon the defendant for the protection of the public against further criminal activity. For this deficiency, we must reverse and vacate the ten-year sentence imposed upon the defendant with the direction that the trial court make the requisite findings of fact and appropriately resentence the defendant.

Relying upon Jenrette v. State, 373 So.2d 718 (Fla.3d DCA 1979) and Engel v. State, 353 So.2d 593 (Fla.3d DCA 1977), the state contends that the defendant’s failure to expressly preserve this point in the trial court requires our affirmance of the sentence and relegates the defendant to apply to the trial court for appropriate relief pursuant to Florida Rule of Criminal Procedure 3.850. Defendant, however, relies upon Noble v. State, 353 So.2d 819 (Fla.1977), where our Supreme Court held that once the jurisdiction of a district court attaches and an error in sentencing in the trial court is raised, it should be considered and determined. The defendant did preserve the point in the trial court. Application of Noble is significant in this case because of the defendant’s challenge to the sufficiency of the evidence to support the revocation of his probation.

As we did in Abraham v. State, 382 So.2d 382 (Fla.3d DCA 1980), we recognize that despite the holding in Noble v. State, supra, it will be more expeditious and represent a considerable saving in time, effort, and expense for questions relating only to sentences to be presented to the trial court for post conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850.

Accordingly, the revocation of the defendant’s probation is affirmed. However, the judgment prescribing an enhanced sentence is reversed and vacated and the cause remanded to the trial court to make the requisite findings in order to support an enhanced sentence to be imposed upon the defendant in accordance with the habitual felony statute, Section 775.084, supra; Eutsey v. State, supra; Whaley v. State, 382 So.2d 802 (Fla.1st DCA 1980); King v. State, 369 So.2d 1031 (Fla.4th DCA 1979).

Affirmed in part; reversed in part and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    INTERNATIONAL CENTER OF THE AMERICAS, INC., a Florida Corporation, Sol W. Meyerson and Bernice Ann Meyerson, Appellants, v. CHEMICAL BANK, a banking corporation, Appellee.
    No. 79-1233.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Greene & Cooper and Marc Cooper, Miami, for appellants.
    Britton, Cohen, Kaufman, Benson & Schantz and Joseph I. Davis, Jr., Miami, for appellee.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

In May, 1976, appellee sought to foreclose a real estate mortgage, which secured a principal indebtedness of three-quarters of a million dollars. A promissory note, a copy of which was attached to the appellee’s complaint, evidenced the corporate appellant’s obligation to repay that sum, plus interest, to one Security National Bank, a stranger to the foreclosure action. Neither was the note produced by appellee, nor was an explanation for that omission offered. Nevertheless, the trial court granted appel-lee’s motion for summary judgment. Appeal was taken from that grant, and we herein reverse.

A promissory note is a negotiable instrument, and as such, entitles a holder in due course to payment thereunder, irrespective of the payor’s claim that he has discharged his obligation by payment to someone else. § 673.305, Fla.Stat. (1980). Therefore, absent presentment of the note, or explanation of his failure to make such, a putative obligee is not entitled to foreclose upon the security for the debt. Downing v. First National Bank of Lake City, 81 So.2d 486, 488 (Fla.1955). In such a situation, affidavits may not be used to remedy the fault, for want of attachment of sworn or certified copies of the note referred to therein. Ferris v. Nichols, 245 So.2d 660 (Fla. 4th DCA 1971); Fla.R.Civ.P. 1.510(e).

Since we find that the issue was timely raised below, and that the defense was not waived, as urged by appellee, and since a genuine issue of material fact exists, to wit: The possession of the note or rights thereunder, we reverse the final summary judgment of the trial court, as violative of Fla.R.Civ.P. 1.510(c).

Reversed.


author: BARKDULL, Judge.

text:
    FRATERNAL ORDER OF POLICE, MIAMI LODGE 20, and AFSCME Local 1907, Appellants, v. CITY OF MIAMI, Appellee.
    No. 79-1473.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Weinsoff & Weinsoff and Alan Eichen-baum, Miami, for appellants.
    George F. Knox, Jr., City Atty. and J. Michael Haygood, Asst. City Atty., for ap-pellee.

      Before BARKDULL and BASKIN, JJ., and EZELL, BOYCE, F., Jr. (Ret.), Associate Judge.
   BARKDULL, Judge.

The appellants, as plaintiffs, filed a declaratory decree action seeking a ruling that Sections 447.301(2) and 447.309(5), Florida Statutes (1977) were unconstitutional, naming the City as a defendant because of its actions under the statutes in collective bargaining agreements with certain of their employees. The City filed a motion to dismiss, alleging that the plaintiffs had been given notice of and, in fact, that plaintiffs filed a memorandum of law in an action before the Public Employees Relations Commission that had lately been pending wherein the City sought a request for declaratory statement. The trial court granted the motion to dismiss upon the ground that it lacked subject matter jurisdiction, the plaintiffs being limited to their right of appeal of the final agency action of PERC to a district court of appeal pursuant to Section 447.504, Florida Statutes (1977).

We reverse upon the authority of Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979) and the reasoning contained therein. In the instant case the matter was not ripe for a determination that the PERC proceedings were in fact res adjudicata and prevented the instant independent action. Nothing in the plaintiffs’ complaint referred to the agency action; extraneous matters are not to be brought in by a motion to dismiss [see: Stone v. Stone, 97 So.2d 352 (Fla. 3d DCA 1957); Hembree v. Reaves, 266 So.2d 362 (Fla. 1st DCA 1972); Stern v. First National Bank of South Miami, 275 So.2d 58 (Fla. 3d DCA 1973); Beach Roundhouse Town Corp. v. Skinner, 356 So.2d 881 (Fla. 3d DCA 1978)] and such would be appropriate to be filed as an affirmative defense.

In the cited ease (Coulter, supra) the plaintiff referred to the agency action in his complaint; this is not the situation in the instant case. Therefore, when the matter is returned to the trial court if the City, upon appropriate pleading, urges the affirmative defense of res adjudicata or lack of subject matter jurisdiction because of the appellants’ failure to pursue the appellate remedies from the PERC action, as provided by Section 447.504, Florida Statutes (1977), it will then be incumbent upon the trial judge to analyze the agency action to determine whether it is the type that an aggrieved party must appeal pursuant to Section 447.-504, Florida Statutes (1977), or whether it is the type wherein an aggrieved party may bring in an independent action. The test to establish this alleged unconstitutionality is amply outlined in the opinion in Coulter, supra.

Reversed and remanded, with directions to the trial court to require the City to file an answer, and then for the trial court to take such further proceedings as it deems appropriate under the issues as then framed.

Reversed and remanded, with directions.

      . Hereinafter referred to as PERC.


author: DANIEL PEARSON, Judge.

text:
    ALLIED FIDELITY INSURANCE COMPANY, and Jose Ramon Ruiz, Appellants, v. The STATE of Florida, Appellee.
    No. 79-1521.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.

      Bierman, Sonnett, Beiley & Shohat, Miami, and Benedict P. Kuehne, W. Palm Beach, for appellants.
    Janet Reno, State’s Atty., and John P. Durant, Asst. State’s Atty., for appellee.
    Before SCHWARTZ, NESBITT and DANIEL PEARSON, JJ.
   DANIEL PEARSON, Judge.

At a hearing on June 19, 1979, the trial court orally ordered that a $105,000 bond posted by Allied Fidelity Insurance Company (Allied) to insure the appearance of Jose Ramon Ruiz (Ruiz) in a pending criminal case be forfeited. On July 17, 1979, Allied and Ruiz filed a notice of appeal from that order. The order appealed from was neither a written order, Sparks v. State, 262 So.2d 251 (Fla. 4th DCA 1972), nor a final order, Huie v. State, 92 So.2d 264 (Fla.1957), and for both reasons the order was not appealable to this court.

Thereafter, on September 17,1979, pursuant to this forfeiture, a final judgment against Allied and in favor of the State was entered. Allied moved to set this judgment aside on the ground that the circuit court lacked jurisdiction to enter this final judgment while Allied’s appeal was pending in this court.

In April 1980, the State moved to dismiss Allied’s appeal. We denied the State’s motion since the record before us contained a reference to an appealable final judgment having been entered on September 17,1979. By order entered May 8, 1980, we directed Allied to furnish forthwith a copy of that final judgment. It was our view that in light of the later entry of the appealable final judgment we would treat the premature notice of appeal as vesting us with jurisdiction as of the time the final judgment was entered. Williams v. State, 324 So.2d 74 (Fla.1975); W. B. D., Inc. v. Howard Johnson Company, 382 So.2d 1323 (Fla. 1st DCA 1980).

It now has been made to appear that on November 14, 1979, the circuit court vacated the final judgment pending the outcome of this appeal. Therefore, once again the appellants are without an appealable final order. Accordingly, we relinquish jurisdiction to the circuit court for the purpose of reinstating its final judgment and transmitting the record containing such reinstated final judgment to this court within thirty (30) days from this order.


author: NESBITT, Judge.

text:
    Richard H. M. MAIDMAN, not Individually but as Trustee under that Certain Land Trust Agreement, Dated December 19, 1975, known as Trust Number 2, Appellant, v. JOMAR HOTEL CORPORATION, Appellee.
    No. 79-1626.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.

      Shutts & Bowen, Miami, and Gregory P. Borgognoni, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for ap-pellee.
    Before SCHWARTZ, NESBITT and DANIEL PEARSON, JJ.
   NESBITT, Judge.

The dispositive issue in this appeal is whether the trial court had subject matter jurisdiction in a proceeding wherein it answered the questions propounded to it by a bankruptcy judge of the United States District Court in and for the Southern District of New York. We find that it did not and reverse.

It appears that the appellant (Maidman) was a “debtor in possession” in a Chapter XII bankruptcy proceeding before the U.S. District Court. One of Maidman’s creditors, the appellee (Jomar), entered into a lease with the receiver of the Barcelona Hotel located in Miami Beach. A question arose in the Chapter XII proceeding regarding Jomar’s right to possession of the hotel. The bankruptcy court partially rescinded its stay order and deferred to the Circuit Court of the Eleventh Judicial Circuit [Miami] so as to allow Jomar to obtain an interpretation of the lease from that court where a mortgage foreclosure proceeding on that property was then pending. Although Maidman was a party to the mortgage foreclosure proceeding, Jomar was not. Counsel for Jomar filed a motion for clarification directly in the foreclosure proceeding attaching copies of the bankruptcy court’s order and questions to be answered. On June 29, 1979, the circuit court entered an order of clarification in accordance with the bankruptcy court’s request. On July 3, 1979, counsel for Jomar filed a motion for rehearing on the order of clarification reciting: “that a question of due process and proper notice has been raised.” On July 16, 1979, Maidman responded by moving to strike the motion for rehearing for a clarification of the lease on the grounds that: (1) neither Maidman nor counsel had been served with the original motion or moving papers; and (2) Jomar, not being a party to the foreclosure proceedings, lacked standing to seek a declaratory judgment because it had not obtained leave to intervene pursuant to Florida Rule of Civil Procedure 1.230.

Simultaneous with the filing of its motion to strike, Jomar filed a petition to remove the controversy to the United States District court for the Southern District of Florida pursuant to 28 U.S.C. §§ 1441 and 1446. Bond was properly posted and notice was given to the interested parties. Jomar’s motion for rehearing on the clarification of the lease was granted by the trial court on July 17, 1979 in the form of an amended “Order on Clarification of Lease and Addendum” from which this appeal is taken. On August 16, 1979, the federal court in Miami remanded the proceeding to the state court.

Maidman complains here of the unorthodox proceeding in that Jomar did not obtain leave to intervene pursuant to Florida Rule of Civil Procedure 1.230; failed to file or serve a complaint for declaratory judgment, and failed to serve pleadings pursuant to Florida Rule of Civil Procedure 1.080(a).

We need not and do not reach these questions because a reversal is required for want of subject matter jurisdiction. Under 28 U.S.C. § 1446, a petition for removal divests the state court of subject matter jurisdiction notwithstanding the lack of notice, knowledge, and in spite of subsequent remand of a case. Cavanagh v. Cavanagh, 380 A.2d 964 (R.I. 1977) (and authorities cited therein); Artists’ Representatives Association v. Haley, 26 A.D.2d 918, 274 N.Y. S.2d 442 (1966); 25 A.L.R.2d 1045 (1952).

Accordingly, the amended Order on Clarification of Lease and Addendum entered by the circuit court on July 17, 1979 answering certain questions propounded to it by the bankruptcy court of the Southern District of New York is reversed.


author: MOORE, Judge.

text:
    Leroy WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 78-365.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Ondi-na Felipe and Kenneth G. Spillias, Asst. Attys. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

The defendant appeals a conviction of battery upon a law enforcement officer. He contends, in part, that the trial court erred in denying his motion for appointment of psychiatrists to determine his competency to stand trial, which was filed pursuant to Florida Rule of Criminal Procedure 3.210. We affirm.

Approximately two weeks prior to trial, defense counsel filed a “motion for appointment of psychiatrists,” which provided in pertinent part:

That Defendant’s present demeanor and conduct casts grave doubt upon Defendant’s mental condition which, together with a past conduct history, and which, together with the nature and quality of the act with which Defendant stands charged, would lead counsel to believe that Defendant is incompetent to plead, incompetent to stand trial and incompetent to aid and assist counsel in the preparation and presentation of his defense.

At the hearing on this motion, defense counsel did not present any testimony or evidence in support of the allegations made in the motion. Rather, counsel represented to the court that he had difficulty communicating with appellant, that appellant looked “vague and somewhat spacey” and that appellant seemed “strange and disorganized.” The court did not feel this was sufficient basis for appointing a psychiatrist to examine appellant and, therefore, denied the motion.

Florida Rule of Criminal Procedure 3.210(a) provides, in pertinent part:

(a) Mental Competence to Stand Trial or to Be Sentenced.
(1) A person accused of a crime who is incompetent to stand trial shall not be proceeded against while he is incompetent. A person is incompetent to stand trial within the meaning of this Rule if he does not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or if he has no rational as well as factual understanding of the proceedings against him.
(2) If before or during trial the Court, of its own motion, or upon motion of counsel for the defendant or for the State, has reasonable ground to believe that the defendant is not mentally competent to stand trial or if at the time of sentencing, the Court, of its own motion or upon motion of counsel for the defendant, has reasonable ground to believe that the defendant is mentally incompetent to be sentenced, the Court shall immediately fix a time for a hearing to determine the defendant’s mental condition.
(4) For the purpose of any hearing held pursuant to subdivision (a), (b), or (c), the Court may appoint not more than three disinterested experts to examine the defendant and testify as to his or her mental condition at such hearing. If the Court does so, the Clerk shall notify the prosecuting attorney and counsel for the defendant of such appointment and shall give the names and addresses of the experts so appointed. Other evidence concerning the defendant’s mental condition may be introduced at the hearing by either party. (Emphasis supplied)

Thus, under this rule, if upon motion by the defense counsel the court has reasonable grounds to believe that the defendant is not mentally competent to stand trial, the court must immediately fix a time for a hearing to determine the defendant’s mental condition. Concomitant with this, the court may appoint experts to examine the defendant. Hence, the issue in this case is whether the court had reasonable grounds to believe that appellant was not mentally competent to stand trial, for if the court did not have such reasonable grounds, it had no duty to hold a competency hearing nor to appoint experts.

Of course, the trial court may consider representations of counsel in deciding whether to order a psychiatric examination. Jones v. State, 362 So.2d 1334 (Fla.1978). But a vague and unsubstantial assertion of a need for a psychiatric evaluation by defense counsel is not sufficient to show error upon the court’s refusal of such an examination. Coney v. State, 348 So.2d 672 (Fla. 3d DCA 1977). The appellate decisions which have overruled the trial court’s denial of a motion for psychiatric examination have uniformly involved records where defense counsel presented something more than a bare or vague assertion of incompetency. See, e. g., Pedrero v. State, 262 So.2d 737 (Fla. 2d DCA 1972), on remand 271 So.2d 201 (Fla. 2d DCA 1973); Mitchell v. State, 289 So.2d 418 (Fla. 2d DCA 1974), on remand 311 So.2d 181 (Fla. 2d DCA 1975); Meeks v. State, 289 So.2d 479 (Fla. 3d DCA 1974); Boggs v. State, 375 So.2d 604 (Fla. 2d DCA 1979).

Support for this position can also be found in Federal decisions dealing with the constitutional right not to be tried while incompetent and with the Federal rule dealing with mental competency to stand trial. 18 U.S.C.A., Section 4244. For example, in Jordan v. Wainwright, 457 F.2d 338 (5th Cir. 1972), the petitioner, a Florida prisoner serving a 20 year sentence for robbery, raised as grounds for habeas corpus relief the failure of the trial court to hold a competency hearing where defense counsel had raised the issue by pre-trial motion. The Fifth Circuit affirmed the district court’s denial of habeas corpus relief, stating:

We note that the motion asserted only that counsel had difficulty communicating with his client. No showing was made of prior hospitalization for or diagnosis of mental difficulties or of prior adjudication of incompetency. No evidence of any kind was proffered to support the motion. The trial judge denied it stating that he had observed the petitioner closely throughout previous court appearances and actual trials, and knew him to be a keen witted person, competent to stand trial.
The teaching of Pate v. Robinson, 1966, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, is that the due process clause of the Fourteenth Amendment to the U. S. Constitution requires that state criminal trials not proceed against incompetents.
But no sanity hearing is mandated by Pate v. Robinson by a naked suggestion that the defendant may be incompetent. Evidence must be presented which is sufficient to raise a “bona fide doubt” as to the defendant’s competency to stand trial,

The constitutional standard of “bona fide doubt” is at least, on a facial level, indistinguishable from the “reasonable ground to believe” test in Florida Rule of Criminal Procedure 3.210(a). Pedrero v. Wainwright, 590 F.2d 1383 (5th Cir. 1979). Consequently, we believe that a defendant requesting a competency hearing pursuant to Rule 3.210(a) must likewise proffer more than a “naked suggestion” of incompetency.

The Federal rule dealing with mental incompetency provides, in part, that if upon motion the court has reasonable cause to believe that the defendant is mentally incompetent, the court must appoint at least one psychiatrist to examine him. 18 U.S. C.A., Section 4244. However, there must be a factual showing of “reasonable cause” to support the motion. United States v. Hall, 523 F.2d 665 (2d Cir. 1975); United States v. McEachern, 465 F.2d 833 (5th Cir. 1972), cert. denied 409 U.S. 1043, 93 S.Ct. 539, 34 L.Ed.2d 494 (1972).

We recognize that in ruling on a motion to determine a defendant’s competency to stand trial, the question before the court is whether there is reasonable ground to believe the defendant may be incompetent, not whether he is incompetent. The latter issue should be determined after a hearing. Nevertheless, in the instant case, we believe defense counsel’s vague and unsupported claim of appellant’s incompetency was not sufficient to mandate a competency hearing and the appointment of psychiatrists. The record does not reflect that counsel even made an effort to have appellant appear before the court for the court to observe his conduct.

Further, we note that counsel has not pointed to any conduct on appellant’s part during trial which would supplement the information (or lack thereof) contained in the pre-trial motion. In fact, in reviewing the record, it is evident from appellant’s testimony at a hearing on a motion to suppress immediately prior to trial that he was coherent. Consequently, we find no error in denying the motion.

Appellant’s second point on appeal is without merit.

AFFIRMED.

ANSTEAD and BERANEK, JJ., concur.

      . In Chapter 79-336, Laws of Florida (1979), effective October 1, 1979, the Legislature repealed Rule 3.210 and made the appointment of experts mandatory where the court has reasonable ground to believe that the defendant is incompetent to stand trial. See, Sections 918.-15 and 925.10, Florida Statutes (1979). On October 9, 1979, the Florida Supreme Court adopted those portions of Chapter 79-336 which are procedural in nature. In re Transition Rule 23 Competency to Stand Trial and Be Sentenced: Insanity as a Defense, 375 So.2d 855 (Fla.1979).


author: ANSTEAD, Judge.

text:
    LEADERSHIP HOUSING SYSTEMS OF FLORIDA, INC., Appellant, v. T & S ELECTRIC, INC., Appellee.
    No. 78-1480.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.

      Michael D. Stewart of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    George E. Mastics of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, and Robert M. Klein of Stephens, Schwartz, Lynn & Cherney, P. A., Miami, for appellee.
   ANSTEAD, Judge.

This is an appeal from a final summary judgment entered against the appellant, Leadership Housing Systems of Florida, Inc., on its claim for contractual indemnity against appellee, T & S Electric, Inc.

An employee of appellee was injured on a construction project wherein appellant was the owner and appellee the electrical contractor. The employee claimed appellant negligently caused his injury and recovered a judgment against appellant based on a verdict finding the appellant 70% negligent and the appellee 30% negligent. The employee’s damages were reduced accordingly and judgment for the reduced amount entered against appellant.

Appellant filed an indemnity claim against appellee predicated on the following provision in their construction contract:

INDEMNIFICATION (Except due to Owner’s sole negligence)
(a) Contractor shall forever indemnify and save harmless Owner, its officers, directors and employees, from any obligation, liability, lien, claim, demand, cause or causes of action whatsoever, or loss whatsoever due to or arising out of or claimed to arise out of the performance by contractor of the contract and/or the doing or failing to do anything by the contractor, his agents, servants, employees or invitees. . . .

The trial court entered a final summary judgment against appellant on the basis that this provision did not clearly provide that appellee would indemnify appellant for damages caused by appellant’s own negligence.

An indemnity agreement will not be construed to allow a person to be indemnified for damages caused by his own negligence unless the contract clearly and expressly stated that such liability is undertaken by the indemnitor. Charles Poe Masonry v. Spring Lock Scaffold, 374 So.2d 487 (Fla.1979); University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla. 1973); Walter Taff Bradshaw & Associates, P.A. v. Bedsold, 374 So.2d 644 (Fla.4th DCA 1979). Also see Alba v. Pelican Marine Divers, Inc., 391 F.Supp. 954 (E.D.La.1975).

We agree with the trial court that the contract provision set out, supra, does not constitute a clear and express agreement by appellee to indemnify appellant for damages caused by appellant’s own negligence. The final summary judgment was therefore appropriate.

Since we affirm the granting of final summary judgment in favor of appellee we need not consider appellant’s contention that the court erred in denying its motion for summary judgment on the same claim.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

DOWNEY and HERSEY, JJ., concur.


author: BERANEK, Judge.

text:
    CONTEMPORARY INTERIORS, INC., Appellant, v. FOUR MARKS, INC., Plantation Square, Inc., Pat Wiken and Charles Thomas, d/b/a Wiken-Thomas Interiors, Appellee.
    No. 79-1419.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.

      Nicholas R. Friedman, Miami, for appellant.
    Michael K. Feldman of Nelson & Feld-man, P.A., Bay Harbor Islands, for appellee, Four Marks, Inc.
   BERANEK, Judge.

This is an interlocutory appeal by defendant, Contemporary Interiors, Inc., from the trial court’s grant of plaintiff’s request for a temporary injunction. Four Marks’ complaint alleged that on April 18, 1978, it entered into a shopping center lease with defendant, Plantation Square, Inc., wherein Plantation agreed that Four Marks, Inc., would be the only flooring sales store in the shopping center. Plantation Square is alleged to have subsequently leased another store in the shopping center to appellant, Contemporary Interiors, Inc. The purpose of this lease was for sale of furniture and accessories and other items related to interi- or design. Plaintiff alleged this subsequent lease violated the terms of its lease by essentially giving Contemporary Interiors permission to sell flooring, thereby interfering with plaintiff’s established property rights. After a hearing the trial court temporarily enjoined Contemporary Interiors from selling any type of flooring, enjoined Plantation Square from entering any leases permitting flooring stores and ordered plaintiff to post a $100 bond. We reverse.

To support the award of a temporary injunction, a party must prove (1) irreparable harm, (2) a clear legal right, (3) an inadequate remedy at law, and (4) considerations of the public interest. State Department of Health and Rehabilitative Services v. Artis, 345 So.2d 1109 (Fla. 4th DCA 1977). Moreover, since a temporary injunction is an extraordinary remedy, it should be granted sparingly and only after the moving party has alleged and proven facts entitling it to relief. Jennings v. Perrine Fish Market, Inc., 360 So.2d 434 (Fla. 3d DCA 1978). Plaintiff’s complaint alleges it will suffer irreparable harm because of defendant’s interference with its “property rights,” but contains no ultimate facts to this effect. This general allegation of irreparable harm is clearly insufficient. Dania Jai Alai Intern., Inc. v. Murua, 375 So.2d 57 (Fla. 4th DCA 1979). Furthermore, although plaintiff introduced evidence at the hearing indicating defendant, Plantation Square, Inc.’s, breach of the contractual provision in question, it presented no evidence regarding its allegation of irreparable harm. We additionally point out that while plaintiff may have a valid cause of action against Plantation Square for breach of contract, nothing in the record supports a clear legal right against plaintiff’s co-tenant, Contemporary Interiors, who is the appellant here.

We conclude that the trial court erred in granting the temporary injunction. Same is hereby dissolved and the case remanded to the trial court for further proceedings consistent herewith. Since we reverse the injunction, we need not reach the issue of the sufficiency of the bond.

REVERSED AND REMANDED WITH INSTRUCTIONS.

LETTS, C. J., and MOORE, J., concur.


text:
    Eddie George JONES, Appellant, v. STATE of Florida, Appellee.
    No. 80-823.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Eddie George Jones, appellant, pro se.
    No appearance on behalf of appellee.
   BERANEK, Judge.

This is a pro se appeal by the defendant pursuant to Rule of Appellate Procedure 9.140(g), governing appeals from summary denials of Florida Rule of Criminal Procedure 3.850 motions for post-conviction relief. When a trial court denies a 3.850 motion without an evidentiary hearing, Florida Rule of Appellate Procedure 9.140(g) sets the standard for review as follows:

Unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing.

The appellate record considered by this court in determining the conclusive demonstration of non-entitlement to relief consists of copies of the defendant’s 3.850 motion, the order denying it, and any motions for rehearing and orders on such motions.

To appreciate the appellate procedure under subsection (g) of Rule of Appellate Procedure 9.140, it is necessary to consider the trial court procedure outlined in Rule of Criminal Procedure 3.850. This rule states in relevant part:

If the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief, the motion shall be denied without a hearing. In those instances when such denial is not predicated upon the legal insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the order. (Emphasis supplied.)

In the present case, the trial court entered a rather detailed order denying defendant’s 3.850 motion without an evidentiary hearing. In doing so, the trial court recited that the “file” had been fully reviewed, but attached no portions of it. As such, the case comes before this Court with a record consisting solely of the defendant’s motion alleging ineffective assistance of counsel and the trial court’s order denying it. The trial court further noted that the defendant had previously appealed to the Fourth District Court of Appeal, which affirmed without opinion. In ruling on the specific issue of the ineffective assistance of counsel, the trial court found the allegation to be without merit and stated that, “The Fourth District Court of Appeal with the benefit of the entire transcript, by its per curiam affirmations has found against the contention of ineffective representation of counsel.” In so ruling, the trial court erred. It is true that the defendant took a prior appeal to this Court which was the subject of a per curiam affirmance issued December 19, 1979. Thereafter, the record on appeal, consisting of the trial transcript and other documents, was returned to the trial court and, we presume, reviewed by the trial court in ruling on the allegation of ineffective assistance of counsel.

It is clear that a criminal defendant cannot initially raise ineffective assistance of counsel on a direct appeal from his conviction. State v. Barber, 301 So.2d 7 (Fla. 1974); Randall v. State, 346 So.2d 1233 (Fla.3d DCA 1977). Instead, the issue should be raised initially in a 3.850 motion before the trial court. We sympathize with the trial judge. In this case, Judge Thomas Coker, Jr., presided over the defendant’s trial where he was found guilty, convicted and sentenced. A full appeal was then had before this District Court and Judge Coker’s conviction of defendant was affirmed without opinion. Judge Coker, via defendant’s 3.850 motion, was then asked to review counsel’s effectiveness in a trial he previously presided over and which this Court affirmed. Defendant subsequently appealed Judge Coker’s ruling to this Court. Obviously, multiple appeals and post-trial proceedings involving the same conviction are a major cause of the ever-increasing caseload in the criminal system on both trial and appellate levels. Despite this, we are bound to follow the rules cited above as promulgated by the Florida Supreme Court.

In this case, the defendant has made allegations of a factual nature, which, if true, may present a situation involving ineffective assistance of counsel. It is necessary for the trial court to rule on these allegations after an evidentiary hearing and we reverse solely for this reason. Meeks v. State, 382 So.2d 673 (1980). In doing so, we think it worthwhile to quote from the committee note which accompanies Florida Rule of Criminal Procedure 3.850.

The committee perceives that denial of a motion will either be based on the insufficiency of the motion itself or on the basis of the file or record which the trial court will have before it. The proposal provides for a simplified expeditious disposition of appeals in such cases. It is to be noted, however, that in those cases where the record is relied upon as a basis for denial of the motion, it may in exceptional cases involve a substantial record but the advantages of this procedure seem to justify coping with the unusual or exceptional case. It is the opinion of the .committee that trial courts will in any order of denial based upon the insufficiency of the motion or on the face of the record, set forth specifically the basis of the court’s ruling with sufficient specificity to delineate the issue for the benefit of the appellate courts.

The committee note reflects the effect of the rule in creating additional work for the already heavily burdened trial bench. Despite this, we believe observance of the committee’s recommendations is advisable and would have the effect of shortening the inevitable appellate proceedings in the long run. Trial courts have some degree of discretion in the procedure to be employed in considering 3.850 motions. Initially, the facial sufficiency of the motion should be considered in light of subsections (a) through (e) and Rule of Criminal Procedure 3.987. If the motion is facially adequate and not a successive motion, then it should be considered in conjunction with the files and records in the case. If “the motion and the files and records” show conclusively a lack of merit, no evidentiary hearing is necessary and it may be summarily denied. If summarily denied, the portions of the files and records relied upon must be attached to the order. Meeks v. State, supra. If the motion cannot be disposed of in such manner, then the rule requires an evidentiary hearing. At this hearing, the trial court must “determine the issues and make findings of fact and conclusions of law with respect thereto.” The order below is reversed and the cause remanded for an evi-dentiary hearing solely on the issue of ineffective assistance of counsel.

REVERSED AND REMANDED.

HERSEY and HURLEY, JJ., concur.


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

text:
    Peter Jeffery PINNOCK, Appellant, v. STATE of Florida, Appellee.
    No. 79-377/T4-413.
    District Court of Appeal of Florida, Fifth District.
    June 11, 1980.

      Gene R. Stephenson, Casselberry, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard H. Combs, Asst. State’s Atty., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a judgment of conviction for armed robbery entered by the Circuit Court for Orange County. Appellant moved to dismiss the information pursuant to the interstate agreement on detainers (re: speedy trial) defined in section 941.45, Florida Statutes (1979). The trial court denied the motions and appellant entered a plea of nolo contendere reserving the right to seek appellate review.

On May 9, 1978, an information was filed in Orange County charging the appellant with armed robbery. At that time, appellant was imprisoned in the Federal Correctional Institution in Memphis, Tennessee. On June 20, 1978, appellant executed a document requesting disposition of the charges against him. This was received by the State Attorney and the Circuit Court on July 5, 1978. On August 5, 1978, the State Attorney executed a Prosecutor’s Acceptance of Temporary Custody Offered in Connection with a Prisoner’s Request for Disposition of a Detainer. On August 25, 1978, physical custody was surrendered to Florida authorities. On January 9, 1979, appellant moved the trial court to dismiss the charges against him pursuant to the Interstate Agreement on Detainers.

“Detainers” are often used when a person accused of a crime in one state is already in custody in another. The Interstate Agreement on Detainers, to which Florida became a party by its enactment of section 941.45 Florida Statutes (1979), had as its purpose the development of a uniform procedure among the several states and the protection of prisoners from those practices discussed in United States v. Ford, 550 F.2d 732 (2d Cir. 1977). See also Gaddy v. Turner, 376 So.2d 1225 (Fla. 2d DCA 1979).

The record clearly shows appellant was not brought to trial within 180 days after the required notice was received by the State Attorney and the appropriate court as required by the statute.

Appellee contends that section 941.45 conflicts with Rule 3.191, Florida Rules of Criminal Procedure, and therefore is unconstitutional. It should be noted, however, that the court’s order denying appellant’s motion did not hold the statute unconstitutional. It is the state’s position that appellant’s rights are governed strictly by subsection (a)(1) of that rule which states:

The time periods established by this section shall commence when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.

Appellant contends there is no material conflict between the rule and the statute.

Section 941.45(3)(a) is analogous to the provisions of Rule 3.191(b)(3) insofar as they both cover instances where a prisoner outside the jurisdiction of Florida courts can request a speedy trial on charges arising in Florida. A comparison of the rule and the statute reflects that both apply to prisoners outside of the state charged with a crime in Florida; both provide for a speedy trial upon demand; both provide (under the facts here) substantially similar time periods (six months under the rule and 180 days under the statute); both provide for discharge or dismissal if there is no state compliance within the prescribed period. Under the rule, the prisoner is entitled to a speedy trial upon demand filed with the court and upon service on the prosecuting attorney. Such person is then entitled to trial within the periods of time established by section (b)(2), commencing “after the prosecuting attorney has filed a detain-er or has otherwise attempted to secure the presence of the accused for trial or within a reasonable time as determined by the court if the prosecutor has not acted in response to the demand for trial. . . .” (Emphasis added.) Under the statute, the time commences “after he shall have caused to be delivered to the prosecuting officer and the appropriate court . . . written notice. . . . ” (Emphasis added.)

The First District Court of Appeal, in O'Bryan v. State, 326 So.2d 83, 88 (Fla. 1st DCA 1976), resolved any apparent uncertainty as to when the time period commences under the rule by stating, “when a foreign prisoner responds to a detainer by demanding a speedy trial or when a Florida prosecutor responds to a trial demand by filing a detainer, Dickey [v. Circuit Court, Gadsen County, Quincy, Fla., 200 So.2d 621 (Fla.1967)] and the Rule assures that the Florida trial will be had within six months, subject to the Rule’s extension and waiver provisions.” See also Dickey v. State, 215 So.2d 772 (Fla. 1st DCA 1968), rev’d. 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26.

Whether under the rule or the statute, it is clear that at the very latest the period began on July 5,1978. Appellant’s motions to dismiss were brought on January 9 and January 25, 1979, both of which are more than 180 days or six months after delivery and receipt of the demand to the court and to the State Attorney. The difference in time, 180 days under the statute and six months under the rule, is not a significant difference for purposes of this appeal and cannot therefore be said to present a justiciable issue.

We therefore hold that appellant’s motion to dismiss should have been granted.

We REVERSE and REMAND for discharge of appellant.

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

      . § 941.45, Fla.Stat. (1979). Agreement on De-tainers. — The interstate compact known as the “Agreement on Detainers” is enacted into law and entered into by the state as a party, and is of full force and effect between the state and any other states joining therein in the form substantially as follows:
      (1) Policy and purpose. — The party states find that charges outstanding against a prisoner, detainers based on untried indictments, in-formations, or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, in-formations, or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.


text:
    M. A., a child, Appellant, v. STATE of Florida, Appellee.
    No. 79-481.
    District Court of Appeal of Florida, Second District.
    June 13, 1980.

      Jack 0. Johnson, Public Defender, and Charles L. Stutts, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The trial court adjudicated M.A. a juvenile delinquent upon finding him guilty of second degree murder. At the beginning of the adjudicatory hearing, the court denied M.A.’s motion for a separate hearing on the voluntariness of a confession. M.A. contends this was a denial of due process of law. We affirm.

The state filed a petition praying that M.A. be adjudged a juvenile delinquent because he had strangled a young companion. Due to habeas corpus proceedings in this court, the trial court had to schedule the adjudicatory hearing on very short notice.

At the commencement of the hearing, M.A. orally moved to suppress various statements he had made to the police, explaining that short notice of the hearing had prevented him from filing and noticing a written motion. The state objected to the form and timeliness of the motion. The court denied the motion subject to determining the voluntariness of the statements when the state might attempt to introduce them at the hearing. After commencement of the hearing, but before he or the state had presented any evidence pertaining to the statements, M.A. moved for an eviden-tiary hearing on their voluntariness. The state objected to the duplication this would cause. The court denied the motion but agreed that as the state called its witnesses, defense counsel could voir dire each of them regarding the voluntariness of the statements.

As the hearing proceeded the court ruled the statements were voluntarily made, and admitted evidence concerning them. At the conclusion of the hearing, it found M.A. guilty of second degree murder and adjudicated him a delinquent.

M.A. now appeals contending that the trial court erred in not conducting a separate evidentiary hearing on the volun-tariness of M.A.’s statements. He relies on Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), for the proposition that procedural due process requires separate determinations of the voluntariness of a confession and guilt. In Jackson the Supreme Court held that in jurisdictions where the jury determines voluntariness of confessions as well as the guilt of the accused it is prejudicial error to permit a jury to consider both issues simultaneously. The court reasoned that such an arrangement makes it practically impossible to insure that the deliberations concerning the volun-tariness of the defendant’s confession are not infected by the evidence of his guilt, particularly where a heinous, atrocious crime has been committed.

While we can see the desirability of conducting separate hearings on the voluntariness of a confession and the issue of guilt, we do not believe that the reasoning of Jackson is equally valid where a judge performs both functions. In holding that a judge may determine both voluntariness and guilt in a single proceeding, the Seventh Circuit Court of Appeals stated:

[T]he Court’s opinion in Jackson reveals that its holding was premised largely on its concern that lay jurors were unable to separate considerations going solely to the voluntariness of a confession from matters affecting its reliability as proof of the defendant’s guilt or innocence. However, a trial judge, unlike a juror, is trained by learning and experience to segregate evidence bearing on a confession’s voluntariness from evidence bearing on its reliability and the defendant’s culpability.

United States v. Illinois, 546 F.2d 1298, 1304 (7th Cir. 1976). Further, United States v. Illinois appears to represent the majority view. United States v. Martinez, 555 F.2d 1269 (5th Cir. 1977); In re Appeal in Maricopa County Juvenile Action No. J-84357, 118 Ariz. 284, 576 P.2d 143 (1978); People v. Fultz, 32 Ill.App.3d 317, 336 N.E.2d 288, 300-03 (1975); State v. Hutchinson, 260 Md. 227, 271 A.2d 641, 646 (1970); People v. Brown, 24 N.Y.2d 168, 299 N.Y.S.2d 190, 247 N.E.2d 153, 155 (1969); Akers v. Commonwealth, 216 Va. 40, 216 S.E.2d 28, 31 (1975); cf. State v. Jarvi, 3 Or.App. 391, 474 P.2d 363, 364 (1970); contra, United States v. Rundle, 268 F.Supp. 691 (E.D.Pa.1967), aff’d. on other grounds, 405 F.2d 1037 (3d Cir. 1969); United States v. Cavell, 254 F.Supp. 154 (M.D.Pa.1966).

As in United States v. Illinois, the courts of Florida presume that, in nonjury cases, trial judges base their verdicts on admissible evidence and disregard inadmissible evidence. United States v. Masri, 547 F.2d 932 (5th Cir.) (applying Florida law), cert. denied, Ghalayini v. United States, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249, cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977); see Jalbert v. State, 95 So.2d 589 (Fla.1957).

We have examined and we reject M.A.’s other point on appeal.

AFFIRMED.

GRIMES, C. J., and SCHEB and OTT, JJ., concur.

      . Florida Rule of Juvenile Procedure 8.130(b)(1) requires that motions to suppress be in writing and filed prior to the adjudicatory hearing. The trial court, however, may waive the writing requirement for good cause shown, and the filing requirement if the juvenile did not have an opportunity to file the motion before the hearing or was not aware of the grounds for the motion. As noted, the court scheduled the hearing on very short notice which prevented filing a written motion prior to the hearing.

      . Holding a separate hearing, even if just prior to trial, has several advantages. First, it avoids the awkwardness of the court admitting a confession during the testimony of the first witness on voluntariness, subject to the possibility of having to strike the confession after other witnesses testify on voluntariness. Second, though it did not occur in this case, a separate hearing will assure that when the defendant wishes to testify only concerning voluntariness of his confession, there will be less confusion over whether he is submitting his testimony on the merits or simply giving evidence on volun-tariness. Needless to say, under the latter circumstances, the court must limit cross-examination to the issue of voluntariness.


text:
    Jeffrey LUXENBURG, Appellant, v. STATE of Florida, Appellee.
    No. LL-371.
    District Court of Appeal of Florida, First District.
    June 13, 1980.

      Charles G. Brackins and Jeffrey L. Mel-don of Meldon & Brackins, Gainesville, for appellant.
    Jim Smith, Atty. Gen., and Doris E. Jenkins, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant pleaded nolo contendere, reserving his right to appeal, to a charge of possessing more than 100 pounds of cannabis with the intent to sell. Only one of his points merits discussion, and on that point we reverse.

In April 1978 appellant passed a Hamilton County agricultural inspection station. Inspector R. M. Shope pursued and stopped him for failure to have his vehicle inspected. Shope asked appellant to open the rear of the truck and to open one of a number of boxes in the back. Appellant voluntarily did so, and Shope saw a black plastic bag in one of the boxes.

On Shope’s instructions, appellant returned to the inspection station. While paperwork related to appellant’s failure to stop for inspection was being filled out, Shope once again asked appellant to open the truck and the same box. Shope testified at the suppression hearing that appellant said something to the effect that the boxes contained electronic equipment; after opening the box, appellant “shuffled the paper [inside the box] around . . . .” At that point, Shope said “let’s quit dillydallying around,” reached in and grabbed the bag, slit it open with a knife, and found marijuana inside the bag. The inspector never indicated at the hearing that he smelled marijuana or otherwise had probable cause to believe the bag contained contraband. Appellant testified he opened the truck and box because he thought he was being required to by “an officer of the law.”

Appellant contends the search of the bag was illegal because he did not consent to it, and we agree. Appellant’s consent was limited each time to opening the truck and the box; his actions in no way authorized Shope to grab the bag and tear it open. Gonterman v. State, 358 So.2d 595 (Fla.1st DCA 1978). Shope did not smell marijuana; see Flynn v. State, 374 So.2d 1041 (Fla.1st DCA 1979). The inspector did not ask for permission to take the bag out of the box or to examine it. In Rose v. State, 369 So.2d 447 (Fla.1st DCA 1979), the defendant refused a request to inspect boxes contained in his truck, but a supervisor, without further request, reached inside one of the boxes, discovering marijuana. As we said in Rose, at 448, “[w]hile it is true that appellant was cooperative in opening the camper top to his truck, it is equally true that he had indicated his lack of consent to a further search of the closed boxes.”

Although the refusal of consent in this case is not as explicit as in Rose, Gonterman, and Villari v. State, 372 So.2d 522 (Fla.1st DCA 1979), we nevertheless find the search improper. Appellant’s actions by no means suggested he voluntarily allowed Shope to tear into the plastic bag. As we said in Powell v. State, 332 So.2d 105, 107 (Fla.1st DCA 1976), waiver of the right to be free from unreasonable searches and seizures must be clearly established:

A distinction is recognized . . .between submission to the apparent authority of an officer and unqualified consent. Mere acquiescence in a search is not necessarily a waiver of a valid search warrant.

That the consent was limited is inferable from appellant’s actions after opening the box the second time. By his order to “stop dilly-dallying around” and by his immediate seizure of the bag without permission and without probable cause to do so, the inspector effectively gave appellant no time to object and went beyond the consent to search he had been granted.

REVERSED.

MILLS, C. J., and LARRY G. SMITH and SHIVERS, JJ., concur.


text:
    Seevola LITTLES, Appellant, v. STATE of Florida, Appellee.
    No. MM-127.
    District Court of Appeal of Florida, First District.
    June 13, 1980.
    Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Littles, convicted of armed robbery and attempted second-degree murder, appeals contending the court erroneously denied his motion to dismiss, which was predicated upon the argument that the offense of attempted second-degree murder does not exist under Florida law. We affirm.

An attempt consists of a specific intent to commit the crime, and a separate overt, ineffectual act done towards its commission. E. g., Hutchinson v. State, 315 So.2d 546 (Fla. 2d DCA 1975). Second-degree murder is defined as:

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, .

§ 782.04(2), Fla.Stat. (1977). Littles argues that a charge of attempted second-degree murder is fatally inconsistent and defective because it requires proof that the defendant intentionally committed an unintentional act.

Although this argument has not been addressed by the appellate courts in this state concerning the offense of attempted second-degree murder, the courts have repeatedly rejected the similar assertion that the offense of assault with intent to commit a felony, to wit: murder in the second degree, does not exist under Florida law. E. g., Knight v. State, 42 Fla. 546, 28 So. 759 (1900); Pyke v. State, 47 Fla. 93, 36 So. 577 (1904); Feagle v. State, 55 Fla. 13, 46 So. 182 (1908); Harvell v. State, 155 Fla. 556, 20 So.2d 801 (Fla.1945); Dallas v. State, 170 So.2d 486 (Fla. 2d DCA 1965); Wood v. State, 251 So.2d 556 (Fla. 1st DCA 1971). Since the crime of assault with intent involves specific intent, as does an attempt, the rationale of the aforementioned cases clearly supports the conclusion that the crime of attempted second degree murder exists in Florida.

Furthermore, Littles’ contention hinges on the erroneous premise that intent is synonymous with premeditated design. Premeditated design to effect the death of a human being is more than simply an intent to commit homicide; it is “ . a fully formed and conscious purpose to take human life, formed upon reflection and deliberation, entertained in the mind, both before and at the time of the homicide.” McCutchen v. State, 96 So.2d 152 (Fla.1957). Thus, one could be convicted of attempted second degree murder upon a showing of (1) intent to cause the death of a human being, but without premeditation, and (2) an overt act in furtherance of that intent.

AFFIRMED.

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


text:
    SUNLAND TRAINING CENTER and Division of Risk Management, Appellants, v. Barbara IRVING, Appellee.
    No. PP-321.
    District Court of Appeal of Florida, First District.
    June 13, 1980.
    Anthony J. Salzman of Jones & Langdon, P. A., Gainesville, for appellants.
    Thomas W. Davis of Barton & Cox, Gainesville, for appellee.
   PER CURIAM.

Claimant, at the time of her industrial injury, was receiving wages of $153.86 a week with the State of Florida contributing an amount equal to approximately 9% of her wages into a retirement fund. The deputy commissioner combined weekly wages and the amount contributed by the State into the fund and arrived at an average weekly wage of $167.20.

The sole issue on appeal is whether the deputy erred in computing claimant’s average weekly wage. The Florida Industrial Relations Commission was called upon to resolve the identical issue in Sunland Training Center v. Thomas, IRC Order 2-3917 (Sept. 19,1979). The Commission concluded that “[a]ny contributions made by the State toward claimant’s retirement could be regarded as compensation only if they had a real present-day value to claimant, that is, either he was free to withdraw funds at will or that vesting was assured.” The claimant meets neither of these contingencies. The order below is accordingly reversed and the deputy commissioner is directed to calculate claimant’s benefits based upon an average weekly wage of $153.86.

Reversed and remanded for the entry of an order consistent with this opinion.

McCORD, BOOTH and SHAW, JJ., concur.


text:
    Marvin D. BAKER, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. UU-151.
    District Court of Appeal of Florida, First District.
    June 13, 1980.

      Marvin D. Baker, pro se for petitioner.
    No appearance for respondent.
   PER CURIAM.

This cause is before us as a petition for an extraordinary remedy. Petitioner requests review of the proceedings of the Florida Parole and Probation Commission in determining petitioner’s presumptive parole release date. This Court, pursuant to Rule 9.040(c), Fla.R.App.P., treats petitioner’s claim as one for mandamus. See Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.1974).

The Objective Parole Criteria used to determine a presumptive release date is basically a two-part system. The first part consists of fairly routine calculations. The inmate’s prior history of crime or terms in prison [prison criminal history] are converted to a numerical value or “salient factor score . Rule 23-19.04, Florida Administrative Code. This score is then charted against the type of crime for which the inmate was most recently sentenced, termed the “offense characteristic”, Rule 23-19.01, to arrive at a matrix range, Rule 23-19.05. A hearing examiner panel of the Commission recommends a time within this range. The establishment of a date within this range allows for relatively little discretion. The only discretion that should be exercised occurs in the determination of where within the limited range the prisoner’s release date will fall. The second part of the Objective Parole Criteria primarily concerns decisions beyond the matrix range. The Florida Statutes and the Commission rules allow the Commission, upon proper showing of “good cause”, to go outside the calculated guidelines and extend an inmate’s term by reason of aggravating circumstances far beyond the length of time his salient factor score and offense characteristic rating indicate he should serve.

Petitioner claims that the Commission has provided him with no reasons for its decision to choose the longest term of months in its guidelines matrix range to apply to petitioner. He further asserts that when the Commission determined his matrix range using armed robbery as the offense characteristic, it was precluded from extending petitioner’s term for the aggravating factor of “shots fired” as this is using the same factor — use of a weapon — to determine the initial matrix range as well as to “aggravate” beyond that range, in violation of Section 947.165(1), Florida Statutes (1979).

This Court finds petitioner’s first contention has little merit. Chapter 947 of Florida Statutes does not explicitly require the Parole and Probation Commission to explain in writing its choice of terms within the Guidelines. Only if a factor influences the Commission to aggravate an inmate’s term beyond the Guidelines must a written explanation of that factor be given. Sections 947.172(2), (3), Florida Statutes (1979); Department of Parole and Probation Commission Rules, Ch. 23-19, Objective Parole Criteria Rule 23-19.01, Florida Administrative Code (“Guidelines”).

Petitioner’s second claim deserves closer examination. Section 947.165(1) states in relevant part: “Factors used in arriving at the salient factor score and the severity of offense behavior category shall not be applied as aggravating circumstances.” This is, in part, why the reason for a decision outside the Guidelines requires a “statement in writing . . . specifying individual particularities.” Section 947.172(2), (3). The statement of particularities should clearly let the inmate know why he was aggravated. In the instant ease, the explanation was simply “shots fired — six months”.

The first task in reviewing a case of this kind is to look specifically to whether the explanation of the aggravating circumstances is sufficient to satisfy the statutory requirement. If the explanation proves to be sufficient, this Court may then determine if any statutes or Guideline rules were violated when each particular aggravating factor was applied. Absent a violation of any statute or rule, this Court can review no further under mandamus, as the writ will not lie in any review by this Court of the discretionary acts of the Commission. Moore v. Parole and Probation Commission, supra; Solomon v. Sanitarians’ Registration Board, 155 So.2d 353 (Fla.1963).

The written explanation, containing “individual particularities”, serves a number of purposes. The Commission Guidelines require that an inmate be given an opportunity to respond to aggravating factors under consideration by the hearing examiner panel. Rule 23-19.01(1). Clearly no adequate response can be posed to the Commission if the inmate is not clearly informed concerning the aggravation to which he is responding. The Guidelines further require that allegations which are vague, unsupported or come from an unreliable source are not to be considered as aggravating factors. Id. In addition, charges for which an inmate was acquitted after trial are not to be used in aggravation. Rule 23-19.01(2). These are valuable protections afforded an inmate, as various rules of evidence which prohibit the use of probative evidence at criminal trials may have no application to parole hearings. Unsubstantiated hearsay and vague allegations may often be contained in a presentence investigation report used by the Commission which the inmate generally has the opportunity neither to review nor rebut. An adequate explanation is thus imperative to determine the basis of any aggravation and prevent the improper use of certain factors. Furthermore, § 947.-173, Florida Statutes, allows an inmate to request review of his presumptive parole release date if he “ . . . shows cause in writing, with individual particularities . .” Without a sufficient explanation by the Commission concerning the particular reasons for an inmate’s aggravation, he has little to work with in appealing the Commission’s original decision, thus severely limiting the effective use of appeal.

It is clear that the statutory provisions and the Commission’s own rules indicate the significance and necessity of an adequate explanation of any and all factors considered by the Commission in extending an inmate’s term, by reason of aggravating circumstances, beyond the Guideline matrix range. Precisely what degree of specificity is adequate will vary greatly from case to case. However, in all cases, (1) the Commission must at least distinguish the aggravating circumstances relied on from factors which determine the offense characteristic and, if the offense is not specifically listed in the Guidelines, it too must be explained by the Commission sufficiently to indicate the basis of comparison with an offense listed, Rule 23-19.05; (2) the Commission must distinguish the aggravating circumstances from the factors used in computing the salient factor score; and (3) the explanation must be adequate to afford an inmate insight into why his term to be served was aggravated beyond the matrix range. An explanation meeting the above criteria should allow an inmate and a reviewing court to determine that the case received individualized consideration and the presumptive parole release date was established within the boundaries the statutes and Guidelines placed upon the Commission’s discretion.

Returning to the aggravating factor in the case before us, “shots fired”, we find this explanation meets the above criteria. While two words would in most cases be wholly insufficient to afford an inmate insight into precisely why his term prior to parole was aggravated, this particular case appears to be an exception to that rule. “Shots fired” is a very telling phrase. The possibility of serious bodily injury or death is clearly greater when shots are fired from a weapon than the simple term armed robbery would indicate. The actual use of a gun is more serious than the threat of its use, and aggravating for such a circumstance, clearly not an abuse of discretion, appears to be satisfactorily explained with this simple phrase. While petitioner is correct in claiming that the aggravating circumstance of “shots fired” necessarily includes the use of a weapon, his argument that the shots have thus already been calculated in his original matrix is not a valid one, as the logic obviously flow only one way. The use of a weapon as an element in armed robbery does not necessarily include “shots fired”. Thus, the aggravation is not cumulative to the offense characteristic matrix calculation.

For the reasons stated above, this Court finds that the actions of the Florida Parole and Probation Commission did not violate Chapter 947, Florida Statutes, nor were they inconsistent with the Commission’s established Guidelines. Accordingly, this petitioner can be granted no relief and his petition is dismissed.

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


text:
    David Nathaniel BURTON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2076.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Bennett H. Brummer, Public Defender, and Robert R. Schrank, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Susan C. Minor, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

Affirmed. See: Eutsey v. State, 383 So.2d 219 (Fla.1980); Compare: Ruiz v. State, 384 So.2d 723 (Fla. 3d DCA 1980).


text:
    Samuel Lee BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-855.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Susan C. Minor, Asst. Atty. Gen., for appellee.

      Before HUBBART, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. State v. Freeman, 380 So.2d 1288 (Fla.1980); Johnson v. State, 366 So.2d 418 (Fla.1978).


text:
    Elliot L. MILLER, Appellant, v. CENTRAL NATIONAL BANK OF MIAMI, Appellee.
    No. 79-1818.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Elliot L. Miller, Miami, in pro. per.
    William A. Ingraham, Jr. and Bertram A. Sapurstein, Miami, for appellee.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

Affirmed. McClausiand v. Davis, 204 So.2d 334 (Fla.2d DCA 1967); County of Pinellas v. Clearwater Federal Savings and Loan Association, 214 So.2d 525 (Fla.2d DCA 1968); S. D’Antoni, Inc. v. Greater Atlantic and Pacific Company, Inc., 496 F.2d 1378 (5th Cir. 1974). Compare: General Motors Acceptance Corporation v. Wall, 239 F.Supp. 433 (W.D.N.C.1965).


text:
    Helen Friedman COWART and Allied Fidelity Insurance Company, an Indiana Corporation, Appellants, v. The STATE of Florida, Appellee.
    No. 79-1871.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Stone, Sostchin & Gonzalez, Miami, and Maria Carmen Dominquez, for appellants.
    Janet Reno, State’s Atty., and John P. Durant, Asst. State’s Atty., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. See State v. Sponheim, 366 So.2d 143 (Fla. 2d DCA 1979); Resolute Insurance Company v. State ex rel. Dade County, 289 So.2d 456 (Fla.3d DCA 1974); South American Fire Insurance Company v. State ex rel. Dade County, 270 So.2d 374 (Fla. 3d DCA 1972).


text:
    Juan A. ARAGON et al., Appellants, v. UNIVERSITY OF FLORIDA COLLEGE OF LAW and Joseph R. Julin, Appellees.
    No. 80-223.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.

      Stephen L. Raskin, Miami, for appellants.
    Thomas S. Biggs, Jr. and Ashmun Brown and Joseph B. Cramer and Robert J. Den-son, Gainesville, for appellees.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

Affirmed. Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla. 1977); Wainwright v. Pan-Am Tobacco Corp., 380 So.2d 1066 (Fla.3d DCA 1980).


text:
    DYNAMATRON, INC. d/b/a Genuine Bearing Babbitting Services, Appellant, v. OVERSEAS EQUIPMENT CO., INC., Appellee.
    No. 80-258.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Fromberg, Fromberg & Roth and Michael A. Berke, Miami, for appellant.
    Frank M. Marks, Miami, for appellee.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

Affirmed. Fla.R.Civ.P. 1.540(b)(1).


author: CAMPBELL, Judge.

text:
    Michael J. WOODRUFF, Appellant, v. STATE of Florida, Appellee.
    No. 79-1309.
    District Court of Appeal of Florida, Second District.
    June 18, 1980.
    Jack T. Edmund, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant, Michael J. Woodruff appeals a judgment of guilt and sentence to ten years in prison after a plea of nolo contendere. Appellant had entered his plea reserving his right to appeal the trial court’s order denying his motion to suppress. Appellant concedes that he has no right to appeal the denial of the motion to suppress since that is a nondispositive issue.

Appellant’s plea was entered prior to the Florida Supreme Court’s opinion in Brown v. State, 376 So.2d 382 (Fla.1979); therefore, this case is remanded to the trial court with instructions that appellant be afforded an opportunity to seek to withdraw his plea. See Mangum v. State, 384 So.2d 52 (Fla. 2d DCA 1980); Pittman v. State, 382 So.2d 1227 (Fla. 2d DCA 1979), on rehearing (Fla. 2d DCA 1980), rehearing denied (Fla. 2d DCA May 8, 1980).

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


text:
    Alan Dwight BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 79-2027.
    District Court of Appeal of Florida, Second District.
    June 18, 1980.
    Jack 0. Johnson, Public Defender, and David A. Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged with possession of morphine, possession of methaqualone, and possession of cannabis in excess of five grams. He pled nolo contendere to each of the three counts, yet the trial court entered one sentence of two years imprisonment. Each count constituted a separate offense; therefore, a single general sentence is improper. Dorfman v. State, 351 So.2d 954 (Fla.1977); Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975).

There being no merit to the other points raised on this appeal, we affirm appellant’s convictions. However, we vacate appellant’s sentence and remand for resentenc-ing. Appellant need not be present for this purpose.

GRIMES, C. J., and BOARDMAN and DANAHY, JJ., concur.


author: OTT, Judge.

text:
    Dale B. HARRISON, Appellant, v. Bruce ROSS, Appellee.
    No. 80-600.
    District Court of Appeal of Florida, Second District.
    June 18, 1980.
    R. Scott Cross and James L. Richard of Matthies & Cross, P. A., Ocala, for appellant.
    W. G. Bostick, Jr. of Law Offices of David B. Kesler, P. A., St. Petersburg, for appellee.
   OTT, Judge.

This is an interlocutory appeal from an order denying appellant’s motion for change of venue from Pinellas County to Marion County. The record before us contains no facts to indicate that venue can properly lie in Pinellas County. However, we are reluctant to reverse since it clearly appears that counsel made many factual representations to the trial court that are not a part of record.

Accordingly, we set aside the order appealed from and remand to allow the trial judge to conduct such additional hearings, require affidavits or otherwise afford an opportunity to the parties to properly supplement the record with those facts necessary to an appropriate ruling on the motion.

GRIMES, C. J., and HOBSON, J., concur.


author: DAUKSCH, Chief Justice.

text:
    Edward Lowell CANADA, Petitioner, v. STATE of Florida, Respondent.
    No. 80-542.
    District Court of Appeal of Florida, Fifth District.
    June 18, 1980.
    Edward Lowell Canada, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for respondent.
   WRIT OF HABEAS CORPUS

DAUKSCH, Chief Justice.

Upon the Petition for Writ of Habeas Corpus and the Response filed by the Attorney General, it is ordered that the petition is granted and the Honorable Richard B. Keating, Judge of the Ninth Judicial Circuit, is hereby appointed as Commissioner of this court to take such testimony and receive such evidence as is necessary to determine the facts and resolve any factual disputes as may exist pertaining to petitioner’s allegation he was sentenced illegally and is being held illegally. Since petitioner alleges he is now being held illegally, the Commissioner is requested to enter his findings and a recommended remedy within ten (10) days hereof.

PETITION FOR WRIT OF HABEAS CORPUS IS GRANTED.

ORFINGER and COBB, JJ., concur.


author:
CALOGERO, Justice.

      BLANCHE, Justice (dissenting). DENNIS, Justice,

text:
    LOUISIANA STATE BAR ASSOCIATION v. G. Emitte CORE.
    No. 62547.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.
    Harold J. Lamy, Chairman, New Orleans, Roland J. Achee, Shreveport, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Leonard Puhrer, Alexandria, Edgar H. Lancaster, Jr., Tallulah, Alfred S. Landry, New Iberia, A. Russell Roberts, Metair-ie, John B. Scofield, Lake Charles, Thomas 0. Collins, Jr., New Orleans, for Louisiana State Bar Ass’n, Committee on Professional Responsibility, plaintiff-petitioner.
    G. Emitte Core in pro. per.
   CALOGERO, Justice.

A petition for disciplinary action against the respondent attorney G. Emitte Core was instituted by the Louisiana State Bar Association through its Committee on Professional Responsibility following a formal investigatory hearing conducted in accordance with its Articles of Incorporation.

The Committee charged respondent that:

“In your capacity as an attorney at law, you did render a title opinion to the Capital Bank & Trust Company of Baton Rouge, Louisiana, on or about November 21, 1972 for the purpose of obtaining a loan from said bank for your client and relative, Howard Carber, and his company, Big River Equipment Company, Inc. The contents of this title opinion were false and you knowingly misrepresented the truth in order to mislead the said Capital Bank & Trust Company, all in violation of Disciplinary Rule 1-02 [1-102] of the Code of Professional Responsibility of this Association.”

In the year 1972 Core and his law firm, Core, Mills & Roberts, represented the Capital Bank and Trust Company of Baton Rouge on occasional legal matters, including collections. They also owed the bank approximately $100,000.00 in connection with the development of a subdivision. Simultaneously Core was involved in a joint venture in subdivision development with one Howard Carber a contractor who was his aunt’s husband.

When Carber found himself short on cash Core introduced him to an officer at the Capital Bank and arranged for Carber’s corporation, Big River Equipment Company, Inc., a loan of $6,000.00 secured by collateral mortgage on a piece of real estate. Car-ber used the loan proceeds to meet Big River Equipment Company’s payroll. It is unclear from the record whether Carber used this money to pay employees working on the subdivision project Carber was developing in partnership with Core’s law firm, but Core benefitted from the loan at least indirectly because Carber at that time was the general contractor on all of Core’s subdivision projects.

In connection with the loan Core examined title to the property to be mortgaged, rendered a title opinion in which he recited that he had examined the appropriate mortgage and conveyance records, that in his opinion the title of Big River Equipment Company, Inc. to certain described property was valid and merchantable and that no encumbrances primed the bank’s $6,000.00 collateral mortgage coincidentally passed before him as notary public.

In fact at that time the bank’s purported first collateral mortgage was primed by $10,000.00 and $16,000.00 mortgages and a $789.07 judgment. Nor did the title opinion acknowledge that Carber’s corporation owned only an undivided one-half interest in the property being mortgaged. (The other half of the property was owned by Car-ber’s wife who was Core’s aunt.)

Core was aware of the three encumbrances (See Footnote 2) at the time he issued the title opinion. He claims, however, that he also knew that none of them represented extant obligations. He contends that the $10,000.00 note had been paid and was in Carber’s possession; he asserts that the $16,000.00 note was at all times in Carber’s possession (or in Carber’s attorney’s possession) and in fact had never been used; and he claims that he knew that the $789.07 judgment had been paid in full except for some $17.00 in court costs.

It presumably was to be a simple matter for Core to secure the $10,000.00 and $16,-000.00 mortgage notes from his uncle and cancel the three encumbrances. However, as it turned out he was unable to effect the cancellations because as his joint business venture with Carber soured, Carber refused to produce the notes.

Furthermore, when the bank prepared to foreclose on the property they found they were unable to proceed via executiva because the resolution authorizing Carber to execute the collateral mortgage on behalf of Big River Equipment Company, Inc., recited in the title opinion as being made part of the recorded notarial act of mortgage was in fact not made part of the recorded notarial act. Rather than proceeding via ordinaria against Carber the bank sued Core and his law partners. The trial court dismissed the action against Core and his law firm on grounds of prematurity, whereupon the Capital Bank by supplemental and amending petition added Big River Equipment Company, Inc. and Howard F. Carber as parties defendant.

The Court of Appeal upheld the trial court’s ruling on the prematurity issue but held that St. Paul’s Insurance Company, Core’s malpractice insurer, would not be liable for any judgment against Core and his partners because Core’s conduct constituted fraud which was not covered under the malpractice insurance policy. Capital Bank & Trust Company v. Core, 343 So.2d 284 (La.App. 1st Cir. 1977).

It was not until July, 1978, that the bank received payment in full on the loan (from Core).

After the finality of the Court of Appeal opinion and the denial of writs by this Court on May 11, 1977, the Committee on Professional Responsibility, after receiving a complaint, conducted a preliminary investigation and concluded that an investigatory hearing was required. The Bar Association conducted a hearing on January 23, 1978, concluded that Core was guilty of misconduct, and filed a petition for disciplinary action on June 27, 1978. We appointed a Commissioner to conduct a formal hearing. The Commissioner held a hearing on February 1, 1979, and filed his findings of fact and conclusions of law with this Court.

The Commissioner found the following facts. At the time respondent gave his title opinion he had not made a formal check of the mortgage and conveyance records of the clerk’s office to ascertain the record status of the property. At that time he in fact knew that the encumbrances noted above were of record affecting the property and that the rendered title opinion to the contrary was false.

Even after learning the difficulty the bank was having in getting Carber to pay the notes and knowing that Carber was refusing to produce the notes for cancellation, respondent made no effort to advise Capital Bank of its inferior mortgage ranking on the property. At the time of the rendition of the title opinion, the $10,000.00 note had been paid in full, but the mortgage had not been cancelled and respondent was aware of that fact. Carber apparently held the $16,000.00 collateral mortgage note which had never been used, but this mortgage also had not been cancelled by Carber on advice of counsel (other than Core). The judgment for $789.07 had been paid in full, but it had not been cancelled primarily because $17.00 in court costs remained to be paid. The bank learned of these encumbrances only after going to another attorney to collect the debt.

The Commissioner concluded, however, that respondent could not have been and thus was not in bad faith and had not intentionally tried to take advantage of the bank because such was unlikely considering that Core was doing collection and other legal work for the bank and owed the bank approximately $100,000.00. He concluded that Core’s actions in rendering the title opinion were done carelessly, negligently, and unprofessionaily, but that they were not done dishonestly or with the intent to purposefully mislead the Capital Bank and Trust Company. After considering the appropriate legal principles governing disciplinary proceedings the Commissioner recommended that the following action be taken:

“1) Respondent be ordered to pay to Capital Bank & Trust Company (or to Capital Bank's bonding or insurance company, if such a firm has paid to Capital Bank the amount of this outstanding indebtedness) the $6,000.00 amount of its 'Carber' note, plus an amount equal to the monies expended by Capital Bank & Trust Company in efforts to obtain collection of the amount due under the note less what a normal and uncontested foreclosure proceeding would cost for attorney fees and court costs.

“2) That, unless Respondent proceeds and accomplishes the recommended action in Recommendation ‘1)' above and a written evidence of satisfaction from Capital Bank & Trust Company is received by the office of the Louisiana State Bar Association with copies going to the Clerk of the Louisiana Supreme Court within fifteen (15) days from the date the order is issued, Respondent be ordered suspended until such letter of satisfaction be received from Capital Bank & Trust Company.

“3) That a reprimand be given to Respondent.”

Core’s having now paid the bank loan in full makes the first two recommendations moot. Therefore the only portion of the Commissioner’s recommendation still viable is that respondent Core be given a reprimand.

The Bar Association takes issue with the finding of the Commissioner that the respondent’s actions were not done dishonestly. They contend that the evidence discloses a series of intentional acts by the respondent, resulting in the issuance of a knowingly false title opinion, resulting in financial difficulty, problems and financial losses for Capital Bank. They take exception to the Commissioner’s recommendation that defendant be given a reprimand and urge us to consider disbarring or suspending respondent from the practice of law.

The Bar Association’s recommendations are surely prompted in part by the Court of Appeal’s holding that Core’s legal malpractice insurer was not liable to the bank under the policy because Core’s conduct constituted fraud.

While the Court of Appeal’s determination in this latter regard is seemingly fully contrary to the Commissioner’s finding, it is not entirely so. The Court of Appeal pointed out that under the definition of fraud as set forth in La.Civ.Code art. 1847, specific intent to harm or cause loss is not an indispensable element. Because La.Civ.Code art. 1847 is couched in the disjunctive, fraud may constitute artifice with design to cause inconvenience to another, opined the Court of Appeal, in effect.

Here, respondent rendered a false title opinion and certified the accuracy of it. He knew from his discussion with the bank officer that the bank loaned the $6,000.00 to Carber with the understanding that they would receive a first mortgage, capable of execution by summary process. There is no question that the bank suffered great inconvenience and delay in recovering the money loaned by not being able to foreclose. However, we accept the Commissioner’s finding that respondent did not act with ill motive or dishonest intent.

Respondent at the time the title opinion was rendered and the mortgage was executed probably believed that cancellation of the recorded judgment and mortgages would later be cancelled without significant delay. Respondent probably did not contrive a false title opinion for the purpose of helping Carber procure the loan without the promised security, and his self-serving silence when Carber refused to cooperate, while improper, does not alone establish ill motive at the time of the rendition of the opinion.

On the other hand, Core’s certification that Carber’s corporation had the full undivided interest in the property when it in fact was only an undivided one-half, and his assurance that the appropriate corporate resolution had been passed, made part of the notarial act, and was of record when it was not, was the grossest sort of dereliction, especially when coupled with his not disclosing to Capital Bank his (minimally) indirect interest in the loan.

We conclude that respondent’s conduct constituted at least gross and wanton negligence reflecting an absolute disregard of his duty competently and professionally to handle a legal matter entrusted to him, if not a contrivance to cause inconvenience to a client.

Respondent’s misconduct is sufficiently serious to require greater punishment than a reprimand. We therefore order G. Emitte Core suspended from the practice of law for a period of six months.

Decree

For the foregoing reasons it is ordered that G. Emitte Core, respondent herein, be suspended from the practice of law and his license to practice be revoked for a period of six months and that he pay all costs herein.

RESPONDENT SUSPENDED FOR SIX MONTHS.

BLANCHE and DENNIS, JJ., dissent with reasons.

DIXON, J., concurs.

BLANCHE, Justice (dissenting).

Core’s actions were not, in my opinion, fraudulent. They are more properly described as witless and lacking in either perception or understanding. He was dealing with his uncle-in-law and a bank client whom he undoubtedly wanted to keep. Considering time, the exigencies of the situation and his relationship with both parties, Core evidently rationalized that there was no need to complicate matters by clearing a title to the property and certifying the same when his uncle-in-law would be certain to pay the bank.

I would agree with the commissioner’s report.

DENNIS, Justice,

dissenting.

I respectfully dissent. The misconduct of giving a knowingly false and fraudulent title opinion to a client in a situation where the client could be and eventually was injured by such conduct is totally against the ethical standards which attorneys are required to maintain. In addition, the misconduct is aggravated by the fact that defendant, at least indirectly, benefited personally from the loan made on the basis of his false title opinion. Therefore, I believe that a suspension of six months is too lenient.

       Honorable Edward A. de la Houssaye III participated in this decision as an Associate Justice Pro Tempore.

      . He stated in the title opinion:

        “We have made an examination of the appropriate indexes in the official Conveyance and Mortgage records of the Parish of East Baton Rouge, Louisiana, and it is our opinion, based on this examination, that the title of: Big River Equipment Company, Inc. to the following described property is valid and merchantable: Tracts 1 and 2, being two acre tracts located on Denham Road, Parish of East Baton Rouge, Louisiana (Emphasis added.)

      “Subject to the following exceptions, in addition to any lien that may be created by the filing of the current tax rolls: 1) Collateral mortgage in the sum of $6,000.00 in favor of any future holder or holders, executed by Big River Equipment Company, Inc. on the 29th day of November, 1972, passed before G. Emitte Core, Notary Public, payable at Capital Bank & Trust Company, Baton Rouge, Louisiana, and recorded as Original 82, Bundle 8174.” (Emphasis added.)

      . A subsequent title examination by another law firm showed the following encumbrances on the mortgaged property were on the public records at the time Core gave his title opinion:
      1) A mortgage of record executed by Howard Carber, et al., in favor of any future holder or holders in the amount of $10,000.00 payable at Fidelity Bank dated 7/1/70 and recorded in MOBT-324, Folio 717, Original 61, Bundle 7337, which mortgage was assumed by Titian Carrolton, Inc. in MOB 2379, Page 233, Original 70, Bundle 7606 on 5/31/71.
      2) Outstanding mortgage of record executed by Titian Carrolton, Inc. in favor of any future holder or holders in the amount of $16,-000 recorded on 5/31/71 in MOB 2379, Folio 235, Original 71, Bundle 7606 in the records of the Clerk and Recorder of mortgages for East Baton Rouge Parish.
      3) Judgment recorded in Judgment Book 76, Page 270, rendered in Suit No. 139,126 in favor of Perkins Machinery, Inc. and against Howard Carber d/b/a Big River Construction Company in the amount of $789.07 recorded on April 13, 1979.

      . We denied writs sought by Capital Bank & Trust Company at 345 So.2d 504 (La.1977).

      . The Commissioner’s precise language is as follows:
      “That Respondent’s actions in rendering the false Title Opinion were done carelessly, negligently, and unprofessionaily, but were not done dishonestly or with the intent to purposefully mislead the Capital Bank & Trust Company. It is felt that it is inconceivable that an attorney would, in bad faith, render a false title opinion while being subject to $100,000 in loans being demanded and ‘called’ for, losing legal business and otherwise intentionally ruining the then good relationship with Capital Bank.” (Emphasis provided.)

      . The Commissioner recited the following legal principles:

      “Louisiana State Bar Association Articles of Incorporation, Article 16 (EC9-6) provides:
      ‘Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect for the law and for the courts and the judges thereof; to observe the code of professional responsibility; to act as a member of a learned profession, one dedicated to public service; to cooperate with his brother lawyers in supporting the organized bar through the devoting of his time, efforts and financial support as his professional standing and ability reasonably permit; to conduct himself so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of his clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.’ (Emphasis added.)
      “In the case of Louisiana State Bar Association vs. Emmette Batson, 359 So.2d 70 (La. 1978), the Supreme Court, through Chief Justice Sanders, at 359 So.2d 73 stated:
      ‘Attorneys in this State are held to a very high standard of conduct. An attorney must avoid the appearance of impropriety as well as impropriety itself.’ (Citing numerous cases.) (Emphasis added.)
      “In the case of Brasseaux vs. Girouard, 214 So.2d 401 (La.App. 3rd Cir. 1968), writ refused, then Judge and now Justice Tate, speaking for the Court of Appeal as found at 214 So.2d 404, stated as follows:

        ‘As an inherent attribute of his profession, an attorney may not represent different interests which are hostile, or in conñict with one another. The Cannons of Ethics of both national and state bar associations forbid the representation of conflicting interest, except with consent of opposing parties and then only in limited circumstances. They further provide that the obligation to represent the client with undivided fidelity outlasts the lawyers employment.’ (Emphasis added.)
      “Bad faith, fraudulent purpose, negligence, action, or inaction may be elements justifying disciplinary action by the Louisiana Supreme Court. Louisiana State Bar Association vs. Ruiz, 261 La. 409, 359 [259] So.2d 895, 899 (1972).
      “The primary objective of disciplinary action is to protect the courts and the public. No greater penalty should be imposed than that which is required to accomplish this purpose. Louisiana State Bar Association vs. Stinson, 368 So.2d 791, [971] 794 [974] (La.1979).
      “Louisiana State Bar Association Disciplinary Rule DR1-102 dealing with ‘Misconduct’, states as follows:
      ‘(A) A lawyer shall not (1) violate a disciplinary rule; (2) circumvent a disciplinary rule through actions of another; (3) engage in illegal conduct involving moral turpitude; (4) engage in conduct involving dishonesty, fraud, deciept, or misrepresentation; (5) engage in conduct that is prejudicial to the administration of justice; (6) engage in any other conduct that adversely reñects on his fitness to practice law.’ (Emphasis added.)

        “Disciplinary Rule, DR5-101 dealing with ‘Refusing employment when the interest of the lawyer may impair his independent professional judgment’ states as follows:
      ‘(A) Except with the consent of client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property or personal interests.’ (Emphasis added.)

        “Disciplinary Rule, DR6-101 dealing with ‘Failing to Act Competently’ states as follows:
      ‘(A) A lawyer shall not (1) handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it; (2) handle a legal matter without preparation adequate in the circumstances; (3) neglect a legal matter entrusted to him.’ ” (Emphasis added.)

      . La.Civil Code art. 1847 provides in pertinent part:
      “Fraud as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantages to the one party, or to cause an inconvenience or loss to the other." (Emphasis provided.)