author: COWART, Judge.

text:
    William MONARCA, Appellant, v. STATE of Florida, Appellee.
    No. 81-227.
    District Court of Appeal of Florida, Fifth District.
    April 14, 1982.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

Appellant was charged in a two count indictment with first degree burglary (§ 810.02, Fla.Stat. (1979)) and sexual battery (§ 794.011, Fla.Stat. (1979)). Pursuant to guilty verdicts on both counts, the trial court sentenced appellant to concurrent thirty year terms on each count. Appellant now appeals, contending that: (1) the trial court erred in admitting certain hearsay testimony over objection; (2) separate convictions and sentences on both counts are barred by double jeopardy; and (3) the trial court erred in sentencing appellant as an adult without following the procedures set out in section 39.111(6), Florida Statutes (1979). We affirm.

At trial, the State presented the testimony of the prosecutrix, who testified to the following events. On the Sunday morning in question, she took a shower in preparation to go out shopping. As she stepped from the shower, the appellant grabbed her and held a pair of her sewing scissors to her throat. Appellant then dragged her into the bedroom, threw her on the bed and proceeded to rape her twice. He then asked her where her phone was and she told him it was in the kitchen. As he dragged her into the kitchen, she broke his grasp and ran out the back door screaming. Her neighbors arrived and some started chasing the appellant through the, neighborhood, while others stayed with her. The police arrived in a matter of minutes and an officer proceeded to take her to the local hospital. However, before reaching the hospital, the officer was informed the police had a suspect in custody on a neighboring street. The officer and the victim turned around and went back to the neighboring street, where she positively identified the appellant. The officer then took her immediately to the hospital, where she was treated by a doctor and nurse, who took several tests. The State also presented the testimony of the nurse who had talked to the victim when she arrived at the hospital. The defense objected to allowing the nurse to repeat statements of the victim, arguing that whatever statements the victim made to the nurse about the events were “too distant in time.” The trial court overruled the objection and allowed the nurse to repeat various statements concerning the assault that the prosecutrix had made to the nurse. Finally, the State also established that the prosecutrix’s sewing shears were found in the woods near her house and introduced into evidence the results of laboratory tests.

The appellant was the only witness to testify for the defense. He testified that he was taking a walk on the morning of the arrest and was passing the back of the victim’s house when she beckoned him inside. Although he admitted having intercourse with the victim, he asserted it was by mutual consent. He stated he ran from the house because she suddenly began screaming and yelling and he did not know why.

We hold the trial court did not err in allowing the nurse to testify. Generally, when the charge is one of rape, Florida has recognized a “first complaint” exception to the hearsay rule. Under this exception, the prosecutrix’s testimony was corroborated by evidence that she complained of the outrage soon after its commission. Ellis v. State, 25 Fla. 702, 6 So. 768 (1889). This evidence was permissible, not to prove the crime itself, but to rebut the inference of consent which might be drawn from prolonged silence of the prosecutrix. Technically, this exception only went to the fact that the prosecutrix complained; the exception did not include detailed statements of the circumstances. Ellis. However, this technical distinction has relaxed with time and the substance of the prosecutrix’ complaint, where it occurred shortly after the crime, has been admitted under the more general res gestae exception to the hearsay rule. See, e.g., Irvin v. State, 66 So.2d 288 (Fla.1953), cert. denied, 346 U.S. 927, 74 S.Ct. 316, 98 L.Ed. 419 (1954); Fitter v. State, 261 So.2d 512 (Fla. 3d DCA 1972); Thomas v. State, 220 So.2d 638 (Fla. 3d DCA 1969); Gray v. State, 184 So.2d 206 (Fla. 2d DCA 1966).

In determining whether a statement is part of the res gestae, four factors have been noted:

1) the time gap between the statement and the [incident], 2) the voluntary nature of the declaration, 3) the self-serving nature of the statement, and 4) the de-clarant’s physical and mental condition at the time of the statement.
Appell v. State, 250 So.2d 318, 321 (Fla. 4th DCA), cert. denied, 257 So.2d 257 (Fla.1971).

While time is an important factor, the spontaneity of the utterance is probably most controlling. Thus, res gestae is not limited only to those statements made simultaneously with the act in question.

All declarations and acts of the parties to a transaction which are contemporaneous with and accompany it, and are calculated to throw light upon the motives and intention of the parties to it, are admissible as parts of the res gestae. A more liberal statement of the rule as announced by many recent decisions is that, not only such declarations and acts as accompany the transaction are admissible as parts of the res gestae, but also such as are made or performed under such circumstances as will raise a reasonable presumption that they are the spontaneous utterance or act created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they were the result of premeditated design.
Washington v. State, 118 So.2d 650 (Fla. 2d DCA 1960).

These general philosophies of the res gestae exception to the hearsay rule are carried over into the present evidence code, section 90.803, Florida Statutes (1979). Thus in the instant case, since the proxecutrix’ statements to the nurse were sufficiently close in time to the occurrence of the events and occurred under such circumstances that they could reasonably be presumed to be spontaneous, they were admissible under the res gestae exception to the hearsay rule.

Appellant next contends that he could not be convicted and sentenced for sexual battery where the sexual battery was an “essential element” of the first degree burglary. Although not articulated by the appellant, the issue really turns on the application of the double jeopardy clause.

The double jeopardy clause of the fifth amendment to the U. S. Constitution protects against multiple punishments for the same offense. Therefore, when a person is charged with violating several statutes during the course of a single series of events, the several statutes must be analyzed to determine whether they constitute the same offense or not. The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment is set out in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). There, it was stated:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one - is whether each provision requires proof of an additional fact which the other does not.

284 U.S. at 304, 52 S.Ct. at 182.

In Preston v. State, 397 So.2d 712 (Fla. 5th DCA 1981), this court, citing Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), recognized that the Blockburger test emphasizes the statutory elements of the two crimes. Thus, the statutes must be analyzed to determine whether each statute requires proof of an element which the other statute does not.

The instant case involves the crimes of first degree burglary and sexual battery. Section 810.02, Florida Statutes (1979), provides, in part:

(1)“Burglary” means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in § 775.082, § 775.-083, or § 775.084, if, in the course of committing the offense, the offender:
(a) Makes an assault upon any person.
(b) Is armed, or arms himself within such structure, with explosives or a dangerous weapon.

Consequently, to prove a first degree burglary the State must prove a defendant (1) entered or remained in a (2) structure or a conveyance with (3) the intent to commit an offense and that (4) during the course of the offense the offender (5) made an assault upon any person. Correspondingly, section 794.011, Florida Statutes (1979), proscribes the offense of sexual battery and states, in part:

(3) A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury shall be guilty of a life felony, punishable as provided in § 775.082, § 775.083, or § 775.084.

Additionally, section 794.011(l)(f) defines sexual battery as:

(f) “Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery shall not include acts done for bona fide medical purposes.

To prove a sexual battery under these provisions, the State must prove (1) the victim was over the age of 11 years, (2) did not give consent, (3) was forced to submit to (4) oral, anal, or vaginal (5) penetration by the (6) sexual organ of the defendant and (7) during the course thereof the defendant uses (a) a deadly weapon or (b) actual physical force likely to cause serious personal injury. Comparing the elements that must be proved under each statute, it can clearly be seen that first degree burglary requires proof of elements that sexual battery does not (e.g., entering or remaining, structure or conveyance, intent to commit a felony) and sexual battery contains certain elements not included in first degree burglary (e.g., the various acts constituting sexual battery, nonconsent of the victim, age of the victim). Thus, there is no constitutional (double jeopardy) prohibition from charging, convicting, adjudicating, and punishing the appellant for both crimes.

The next question to be considered is whether there is any statutory prohibition for punishing appellant for both crimes. Section 775.021(4), Florida Statutes (1979), provides:

(4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

Under this statute, appellant should be sentenced for each statutory offense unless one can be considered a lesser included offense of the other. Clearly neither of the crimes involved in the instant case are a necessarily lesser included offense of the other as defined in Brown v. State, 206 So.2d 377 (Fla.1968). Neither is either crime in the instant case a permissive lesser included offense of the other. Under category 4 of Brown, one crime is only a permissive lesser included offense of the other crime if the allegata of the charge and the probata at trial are the same. In the instant case count I of the indictment charged that the appellant

on the 5th day of October, 1980, in The County of Brevard, and State of Florida, did then and there unlawfully enter or remain in a STRUCTURE, to wit: A DWELLING, located at ... the property of [the victim] as owner or custodian, with intent to commit an offense therein, to wit: SEXUAL BATTERY, and in the course of committing said offense made an assault on [the victim] contrary to Sections 810.02(1). and 810.02(2)(a), Florida Statutes, ....

Thus, the allegata of count I only charged appellant with committing an assault. Therefore the sexual battery alleged in Count II was not charged as an element in count I and could not be considered a category 4 lesser included offense of count I.

Not only is the allegata insufficient, the proof at trial for both charges was different. The State proved at trial that appellant (1) physically grabbed the victim, (2) threatened her with sewing shears, (3) raped her by vaginal penetration and (4) raped her by anal penetration. Any one of these four acts could, in and of itself, prove the assault charged in count I. Therefore, the sexual battery charge of count II was neither a necessary nor permissive lesser included offense of count I and appellant’s convictions and sentences for both counts should be affirmed.

As to appellant’s last issue, a review of the transcript of the sentencing hearing establishes that appellant never objected to the trial court’s failure to follow the procedures set out in section 39.111(6), Florida Statutes (1979). Thus appellant has waived this issue for appellate purposes. See Greene v. State, 403 So.2d 1126 (Fla. 5th DCA 1981); Rubasky v. State, 401 So.2d 894 (Fla. 5th DCA 1981); Dunman v. State, 400 So.2d 838 (Fla. 5th DCA 1981).

The judgments and sentences are affirmed without prejudice to appellant raising his alleged sentencing error with the trial court pursuant to Florida Rule of Criminal Procedure 3.850.

AFFIRMED.

ORFINGER and SHARP, JJ., concur.

      . At trial, the results of these tests and others were admitted into evidence. The results substantiated that the victim had recently had intercourse with a male who had the same blood type as appellant and that foreign pubic hairs found on the victim were indistinguishable from samples taken from appellant.

      . See, e.g., Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Ianelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975).

      . Section 794.011(l)(f) defines sexual battery in terms which include additional activities not relevant to the instant discussion.

      . This conclusion is most clearly illustrated in the prior double jeopardy analysis. If crime A does not contain an additional element absent from crime B, then crime A is, by definition, a necessary lesser included offense of crime B. It follows that if crime A does contain an element not required by crime B, then crime A is not a necessary lesser included offense of crime B.

      . The simplest construction of section 775.-021(4) would be to read the phrase “excluding lesser included offenses” as referring only to necessarily lesser included offenses. There is a direct and absolute correlation between the concept of necessarily lesser included offenses and separate offenses for double jeopardy purposes. If a crime is a necessarily lesser offense of another, then it would constitute double jeopardy to punish for both offenses; if a crime is not a necessarily lesser offense of another, then it does not constitute double jeopardy to punish for both offenses. Therefore, construing the subject phrase as referring only to necessarily lesser included offenses would allow convictions and sentencing for every criminal act committed that would not offend double jeopardy principles. Alternatively, if the phrase “excluding lesser included offenses” is construed to include category 4, permissive lesser included offenses, the statute still does not violate double jeopardy principles but it is no longer exactly coextensive. In fact, such a construction allows a defendant to be convicted but not sentenced for certain criminal acts he commits and could constitutionally be punished for, a construction totally inapposite to the purpose of the statute itself.

      . Although the state must allege the particular felony the defendant intended to commit inside the structure, all the elements of the named felony do not need to be alleged nor proved; it is the intent to commit a felony, not the felony, which is an element of the crime of burglary.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Florida, Appellant, v. Buster Dean BROWN, Appellee.
    No. 81-515.
    District Court of Appeal of Florida, Fifth District.
    April 14, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellant.
    Richard S. Rhodes, Orlando, for appellee.
   COWART, Judge.

The State appeals an order discharging appellee under the speedy trial rule, Florida Rule of Criminal Procedure 3.191, as it existed prior to its amendment effective January 1, 1981.

This case was on a docket set for trial the week of March 23, 1981, which was near the end of the speedy trial period. On that date an associate of appellee’s defense counsel appeared before the trial court, and when the court indicated an intent to set this case for trial on the 24th, stated that defense counsel would be out of town until the 24th and would prefer the case be tried on the 25th or 26th. Pursuant to this statement, the court put trial off until the 25th. On the 25th the State requested a continuance because a key witness was unavailable for trial. The State’s motion for continuance was granted and the ease postponed to a time which was beyond the speedy trial rule period. The trial court granted appel-lee’s motion for discharge under the speedy trial rule and the State appeals.

We agree with the State’s contention that the request of defense counsel’s associate on March 23 to set off the trial from the 24th to the 25th constituted a motion for a continuance waiving appellee’s speedy trial rule rights under Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), as any defense request to postpone a case for any period of time, whatever called, constitutes a motion for a continuance waiving speedy trial rule rights under Butterworth. State v. Brown, 394 So.2d 218 (Fla. 5th DCA 1981).

REVERSED and remanded for further proceedings.

COBB and SHARP, JJ., concur.

      . The Florida Bar, In re Rules of Criminal Procedure, 389 So.2d 610 (Fla.1980); See Holmes v. Leffler, 411 So.2d 889 (Fla. 5th DCA 1982).


author: PER CURIAM.

text:
    Wilbert BLUE, Appellant, v. STATE of Florida, Appellee.
    No. 81-549.
    District Court of Appeal of Florida, Fifth District.
    April 14, 1982.
    James B. Gibson, Public Defender, and Julianne Piggotte McLarty, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

DISMISSED.

See Robinson v. State, 373 So.2d 898 (Fla.1979).

DAUKSCH, C. J., and SHARP and CO-WART, JJ., concur.


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

text:
    James CRAWFORD and Florence Crawford, his wife, Appellants, v. DEPARTMENT OF MILITARY AFFAIRS OF the STATE OF FLORIDA, and James R. Williams, Jr., Appellees.
    No. 81-694.
    District Court of Appeal of Florida, Fifth District.
    April 14, 1982.

      James 0. Cunningham of Billings, Morgan & Cunningham, Orlando, and Marcia K. Lippincott, Sanford, for appellants.
    Jim Smith, Atty. Gen., and Pamela L. Lutton, Asst. Atty. Gen., Tallahassee, for appellee Dept, of Military Affairs of Florida.
    Colonel Richard G. Weinberg, St. Augustine, for appellee Florida Nat. Guard.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants appeal from a final summary judgment entered in favor of the Department of Military Affairs, finding that the Department was not liable for injuries sustained by the appellants when they were struck by a truck operated by a member of the Florida National Guard. We REVERSE.

Appellants’ complaint alleged that James R. Williams, an enlisted member of the Florida National Guard, was a state employee and that he had negligently operated a military truck which collided with their car. The accident occurred in February, 1979. Appellees denied that Williams was a state employee and alleged that he was on weekend training known as inactive duty training and was under the training and control of the United States Army.

The broad question presented is whether a Florida National Guardsman, on inactive duty training which is mandated by the federal government, was, at the time of the accident, an employee of the state of Florida for whose negligent acts the state has waived sovereign immunity under section 768.28, Florida Statutes (1979).

We note initially that on December 29, 1981, Public Law 97-124 was enacted by the federal government to amend the Federal Tort Claims Act (specifically 28 U.S.C. § 2671) to provide that the phrase “employee of the government” includes National Guard personnel engaged in federal training. This amendment was enacted in light of numerous cases such as Maryland v. United States, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205 (1965) which had held that guardsmen, engaged in weekend training, were not federal employees for purposes of the Federal Tort Claims Act but rather are viewed as employees of the states for purposes of tort liability. Via this amendment, Congress determined as a matter of policy that federal liability for damages arising out of the acts or omissions of guardsmen during federal training is appropriate. H.R.Rep.No.97-384, 97th Cong., 1st Sess., reprinted in [1982] U.S.Code Cong. & Ad. News, 2692, 2695.

This amendment is inapplicable to the instant case, however, since it applies only to claims arising on or after December 29, 1981, and here appellants were injured in February, 1979. Therefore, we must determine whether prior to December 29, 1981, a Florida guardsman on weekend training was considered a state employee under section 768.28.

The Florida National Guard is an organization of the state militia, section 250.02(2), Florida Statutes (1979), and is within the Department of Military Affairs. § 250.05, Fla.Stat. (1979). Section 768.28, which provides for a waiver of sovereign immunity for the state and its agencies and subdivisions, defines these latter two terms to include “independent establishments of the state.” Section 250.05 speaks of the Department of Military Affairs as an agency of the state government and the Florida Supreme Court has held that the National Guard is an arm of the state government. State v. Florida State Improvement Comm., 47 So.2d 627 (Fla.1950). Therefore, it is clear that these two entities fall within the ambit of section 768.28. See Op.Att’y-Gen. Fla. 79-62 (1979).

The Commander in Chief of the Florida National Guard is the Governor of the State. Art. TV, § 1, Fla.Const.; § 250.06, Fla.Stat. (1979). The state headquarters are under the administration of the state Adjutant General who is appointed by the Governor subject to confirmation by the state senate. The Adjutant General is charged with the supervision, training, instruction and discipline of the Florida National Guard. In addition, actual command over guardsmen during federal training activities is maintained by the state.

The federal government, however, maintains an interest in the training of guard personnel. For instance, weekend training is mandated by 32 U.S.C. § 502(a). Guardsmen are paid during this period by the federal government, 37 U.S.C. § 206 and are covered by federal disability compensation. 32 U.S.C. § 318-19. In addition, here, the military truck being driven by Williams was owned and supplied by the United States Army.

While these factors indicate an extensive federal presence in weekend training activities, courts have traditionally ruled that such guardsmen are viewed as employees of the states for tort liability purposes. Maryland v. United States. See also Storer Broadcasting Co. v. United States, 251 F.2d 268 (5th Cir. 1958). In Maryland v. United States, the Supreme Court explained:

Their [National Guardsmen] appointment by state authorities and the immediate control exercised over them by the states make it apparent that military members of the Guard are employees of the states, and so the courts of appeal have uniformly held.

85 S.Ct. at 1298.

In light of these cases construing the pre-1981 Federal Tort Claims Act and in view of the fact that actual control over guardsmen on weekend training is maintained by state officials, we hold that Williams was a state employee for purposes of tort liability at the time of the accident in question.

It is the direction and control of an employee that is the main test in determining the relationship of employer and employee. Gidney Auto Sales v. Cutchins, 97 So.2d 145 (Fla.3d DCA 1957). Here, section 250.10(l)(b) indicates that direction and control lie on the state level since it provides that the Adjutant General, appointed by the Governor, is charged with the supervision, training, instruction and discipline of the Florida National Guard. The fact that guardsmen are paid by the United States and are required by federal law to attend weekend training are factors to be considered in determining employment, but they are not controlling.

While the federal government must provide uniform and standardized training for the guard units of the states so that in time of national need they may operate cohesively, the interest of an individual state is no less compelling for its own defense. The mere fact that a guardsman on weekend training fulfills a federal function does not change the relationship between the state and the guardsman.

In summary, we conclude that at the time of the accident here, Williams was a state employee for whose negligent acts the state has waived sovereign immunity under section 768.28. We therefore REVERSE and REMAND for trial.

DAUKSCH, C. J., and COWART, J., concur.

      . The state militia is provided for in Article X, section 2, Florida Constitution.

      . This section provides in relevant part that:
      Under regulations to be prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, each company, battery, squadron, and detachment of the National Guard, unless excused by the Secretary concerned, shall—
      (1) assemble for drill and instruction, including indoor target practice, at least forty-eight times each year; and
      (2) participate in training at encampments, maneuvers, outdoor target practice, or other exercises, at least fifteen days each year.

      . Despite this conclusion, the federal government, under 32 U.S.C. § 715 does provide that the Secretary of the Army, in his discretion, may pay up to $25,000 to persons who are injured by National Guardsmen on weekend training.

      . We recognize that in Atkins v. State Department of Hwy. Safety, etc., 383 So.2d 313 (Fla. 1st DCA 1980), the First District held that a National Guardsman not in active state service is not an employee of the state for purposes of the Worker’s Compensation Act. The court noted that compensation for injuries received during training is provided for by the federal government (32 U.S.C. § 318-19) in an amount equal to or equivalent to the benefits accorded by Worker’s Compensation. Here, appellants have no federal remedy except the discretionary award referred to in footnote 3.


author: SHARP, Judge.

text:
    STATE of Florida, Appellant, v. Gary Louis FREEMAN, J. C. Conyers, Appellees.
    Nos. 81-913 to 81-915.
    District Court of Appeal of Florida, Fifth District.
    April 14, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellant.
    James B. Gibson, Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellees.
   SHARP, Judge.

The State brings a consolidated appeal from orders discharging defendants Con-yers and Freeman because of failure of the State to bring them to trial within one hundred eighty (180) days of their arrests. We reverse.

Conyers and Freeman were both arrested in 1980. On March 11, 1981, both filed motions seeking extensions of their trial dates because their attorneys were unable to depose all of the material witnesses in preparation for trial. The motions sought to .“preserve” the defendants’ “right to a speedy trial.” On March 11, 1981, the court entered orders granting a continuance and resetting the trial for Conyers on June 10, 1981 and for Freeman on June 9, 1981. On March 23, 1981, the trial judge entered an additional order “extending” the speedy trial time, in Freeman’s case (but not Con-yers’) until June 9, 1981. Freeman’s trial date was continued again by the State and reset by the court for June 30, 1981. Con-yers filed a motion for discharge on June 30, 1981, and Freeman filed his on June 25, 1981.

We think the speedy trial time, in both cases, had not run at the time the defendants filed their respective motions for discharge because both filed motions which sought a postponement of the original trial dates, which were timely under the Rule. The case law is well-established that a defendant who seeks a postponement under the pre-1981 Amendment to Rule 3.191, “waives” the initial one hundred eighty (180) day time limit, and thereafter, it is necessary for a defendant to file a demand for trial or motion to discharge in order to commence the running of the other time periods under the Rule. Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); State v. Moss, 395 So.2d 561 (Fla. 5th DCA 1981). We do not deem material in Freeman’s case, whether or not the second order called the judge’s action an “extension” rather than a “continuance,” because the subsequent order did not vacate the first, and substantive rights should not turn on semantics. State ex rel. Lee v. Harper, 372 So.2d 1012 (Fla. 1st DCA 1979). Neither Conyers nor Freeman asserted or attempted to establish violation of their constitutional right to speedy trial.

For the reasons stated herein, this case is

REVERSED AND REMANDED.

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

      . Fla.R.Crim.P. 3.191.

      . Fla.R.Crim.P. 3.191 (1981) does not apply to Conyers and Freeman because they were arrested in 1980. See Holmes v. Leffler, 411 So.2d 889 (Fla. 5th DCA 1982).

      . Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); State v. Moss, 395 So.2d 561 (Fla. 5th DCA 1981); State v. Register, 380 So.2d 543 (Fla. 5th DCA 1980); State v. Kurtz, 354 So.2d 890 (Fla. 4th DCA 1978).

      . Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).


text:
    Jesse Lare FERRELL, Appellant, v. STATE of Florida, Appellee.
    No. 81-927.
    District Court of Appeal of Florida, Fifth District.
    April 14, 1982.

      James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

Appellant pled guilty to first degree murder under a plea bargain that he would receive a life sentence with a 25 year mandatory minimum. Trial defense counsel then filed a notice of appeal and filed a statement of judicial acts to be reviewed under Florida Rule of Appellate Procedure 9.140(d) as “Defendant-Appellant requests appeal.” The public defender was appointed and ordered a complete transcript and record, reviewed it for error, found none, and filed an Anders brief and motion to withdraw. As is customary, this court extended appellant an opportunity to himself file an additional brief. Appellant then filed a document claiming that witnesses against him lied and attacking his plea and his trial counsel. Of course, appellant, not being trained in law, does not know that the matters that can be presented on an appeal following a guilty plea are very limited and that most of them, and all of the matters of which he complains, must come to the appellate court following the denial of post-trial motions made to the trial court. See, e.g., Griffin v. State, 403 So.2d 623 (Fla. 5th DCA 1981), and cases cited therein. This is one of many such appeals that should never have been filed and it is

DISMISSED.

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

      . Section 775.082, Florida Statutes (1977), provides that a person convicted of a capital felony and punished by life imprisonment shall be required to serve no less than 25 years before becoming eligible for parole. The written judgment and sentence in this case did not refer to this provision of law. While the effect of the statute does not depend upon any recital in the judgment and sentence, a reference to this provision in life sentences imposed under this statute would be the better practice.

      . See Lawrence v. State, 385 So.2d 167 (Fla. 5th DCA 1980).


author: DANAHY, Judge.

text:
    Larry J. PAGE, Appellant, v. STATE of Florida, Appellee.
    No. 81-274.
    District Court of Appeal of Florida, Second District.
    April 14, 1982.

      Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Appellant appeals from his conviction and sentence for grand theft. He contends that the trial judge erred when he failed to conduct a Richardson hearing after the state violated a rule of criminal procedure during trial. We find no reversible error and affirm.

It is a cardinal rule that, except in a case of fundamental error, an appellate court will not consider an issue unless it was specifically raised at the trial level as the legal basis for an objection or motion. Steinhorst v. State, 412 So.2d 332 (Fla.1982); Castor v. State, 365 So.2d 701 (Fla.1978); State v. Barber, 301 So.2d 7 (Fla.1974).

Appellant cites on this appeal the state’s violation of a specific procedural rule and, also for the first time, cites Richardson and the doctrine first enunciated in that case. We find no error of a fundamental nature under the circumstances here. The contention presented orally to the trial judge is not the same as the point appellant now urges as reversible error. Therefore, the trial judge had no opportunity to focus on and consider the issue that appellant now presents to us. We will not consider the point which appellant asserts for the first time here.

We have considered appellant’s other point and find it to be without merit. See Perry v. State, 356 So.2d 342 (Fla. 1st DCA 1978); Pitts v. State, 333 So.2d 109 (Fla. 1st DCA 1976); Johnson v. State, 178 So.2d 724 (Fla. 2d DCA 1965).

AFFIRMED.

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

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


text:
    Rollie James MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 81-734.
    District Court of Appeal of Florida, Second District.
    April 14, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, and Shawn L. Briese, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s probation revocation order. The court orally found that Miller breached condition (1) by failing to file a monthly report, and condition (5) by violating a law while remaining at liberty. The order, however, recites that he only breached condition (1). We therefore remand the cause with directions to amend the order or the oral finding in order that they confirm with each other and with the intent of the court.

AFFIRMED and REMANDED.

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


text:
    Steven Wayne BEVINS, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-1205, 81-1208.
    District Court of Appeal of Florida, Second District.
    April 14, 1982.
    Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s convictions for burglary. We note, however, that one of the two concurrent sentences specified 266 days credit for jail time while the other authorized 226 days credit for jail time. The record reflects that 266 days elapsed between the date appellant was arrested and the date he was sentenced. Accordingly, we remand the case bearing trial court number 80-881CF with directions that the court make the appropriate correction for jail time credit.

GRIMES, A. C. J., and OTT and SCHOONOVER, JJ., concur.


author: SCHOONOVER, Judge.

text:
    Ronald Lee STEVENS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1242.
    District Court of Appeal of Florida, Second District.
    April 14, 1982.

      Jerry Hill, Public Defender, Bartow, and Robert J. Krauss, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

Appellant pled nolo contendere to two charges of burglary and reserved his right to appeal the denial of his motion to suppress evidence seized as a result of a war-rantless inventory search of his automobile. We reverse.

The appellant left his automobile, bearing license plates which were not registered to that vehicle, unattended in the Snell Isle section of St. Petersburg on November 25, 1980. When he returned to the vehicle and was not able to explain his presence in the area to the satisfaction of two officers of the St. Petersburg Police Department, he was arrested for loitering. He was immediately handcuffed, the keys to his motor vehicle were taken from his possession, and an inventory search of the vehicle was commenced without his permission. The search of the trunk of the automobile resulted in the discovery of three paper bags containing property later identified as stolen property.

The appellant was not informed that the automobile would be impounded unless he could provide for a reasonable alternative to the impoundment. Officer Mahoney of the St. Petersburg Police Department testified that it was the standard procedure of his department, if a subject was arrested and his vehicle was on city property, to have the vehicle towed away and inventoried by using a standard inventory form.

Since the officers did not follow the requirements set forth in Miller v. State, 403 So.2d 1307 (Fla.1981), their search was improper, and the motion to suppress should have been granted.

The supreme court held in Miller that when the owner or possessor of a vehicle is present, as in this case, the arresting officers must advise him or her that the motor vehicle will be impounded unless he or she can provide a reasonable alternative to im-poundment. The court held that such a consultation is not required when the vehicle is unattended, or its owner is not reasonably available or is mentally incapacitated, but none of these exceptions are applicable to this case. Additionally, the state does not contend that any other exception to the requirement of obtaining a search warrant is applicable here.

An arrestee does not have to be advised of all available alternatives to im-poundment, but since the primary purpose of impoundment and an inventory search is for the securing and protection of the vehicle’s contents, it necessarily follows that when he is reasonably available he should be consulted concerning the impoundment. Sanders v. State, 403 So.2d 973 (Fla.1981).

In the ease sub judice, the court, without the benefit of the Miller and Sanders decisions, held that the impoundment and inventory search was proper because the vehicle could not have been lawfully driven from its parking place without valid license plates. However, the appellant should have been allowed an opportunity to choose another reasonable way to protect his own property, e.g., having it towed to a destination of his choice by the company of his choice.

We accordingly reverse and remand with instructions to discharge the defendant on the charges which were the subject matter of this appeal.

DANAHY, A. C. J., and CAMPBELL, J., concur.


text:
    Daniel James LYLES, Appellant, v. STATE of Florida, Appellee.
    No. 81-1428.
    District Court of Appeal of Florida, Second District.
    April 14, 1982.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen.,.Tampa, for appellee.
   SCHOONOVER, Judge.

This is an appeal from a judgment adjudicating the appellant guilty of the sexual battery of his four-year-old stepdaughter, Heather Kelly, and a sentence of life imprisonment entered thereon. We reverse.

The incident in question occurred during the late evening hours of August 29, 1980. Heather was left alone in an orange grove overnight and returned to her home by the appellant at approximately 10:15 a. m. the next day. Shortly thereafter she was questioned by Deputy Lee of the Highlands County Sheriff’s Department. The family photo album was displayed to her, but she could not identify the perpetrator to the satisfaction of Deputy Lee. She was then taken to the hospital, and a physical examination revealed that she had lacerations in the vaginal area and that her hymen was torn.

At approximately 1:55 p. m. Heather was questioned by Sgt. Monica Sauls at the request of Deputy Lee. In response to questioning, Heather stated that her daddy had messed her up and that it was done in the oranges by the graveyard. Since she called both her father and her stepfather daddy, the family photo album was displayed to her and she identified the appellant. The album was admitted into evidence and Sgt. Sauls was allowed to state which picture Heather had chosen. On the basis of the statements made to her, Sgt. Sauls was allowed to draw the conclusion that the crime took place in Highlands County.

Heather did not testify at trial.

The appellant contends that it was error to allow Sgt. Sauls to testify, over objection, to statements made to her by Heather and also to draw conclusions from that testimony.

The appellee contends that the statements were admissible under the common law complaint theory or pursuant to the spontaneous statement exception to the hearsay rule.

We agree with the appellant’s contention that it was error to admit the testimony.

The statements were clearly hearsay. Section 90.801(l)(c), Florida Statutes (1979), provides:

“Hearsay” is an out-of-court statement, other than one made by a declarant who testifies at the trial or hearing, offered in court to prove the truth of the matter contained in the statement.

Hearsay testimony is generally inadmissible for several reasons. First, the declarant is not testifying under oath. Second, the declarant is not in court for the trier of fact to observe his or her demeanor. Third, and of prime importance, the declarant is not subjected to cross-examination in order to test the truth of the statement. State v. Freber, 366 So.2d 426 (Fla.1978).

Section 90.801(2)(c), Florida Statutes (1979), provides that a statement is not hearsay if the declarant testifies at the trial and is subject to cross-examination concerning the statement and the statement is one of identification of a person made after perceiving him. This statute does not support the appellee’s position because Heather did not testify at trial.

Under the facts of this case, we hold that the statements made by Heather to Sgt. Sauls were not admissible under the common law complaint theory advanced by the appellee. It is true that an outraged female should seek the first opportunity to complain, and the fact that she does complain is submitted to the jury as evidence. However, her detailed statement of the circumstances cannot be testified to by the party to whom she made the statement. The complaint itself is admissible to rebut any inference of consent which might be drawn from the prolonged silence of the victim, but not to prove the crime. Custer v. State, 159 Fla. 574, 34 So.2d 100 (1948).

There was no evidence that Heather complained to her grandfather, her mother, her grandmother, Deputy Lee, or Sgt. Sauls. Sgt. Sauls was allowed to repeat the detailed circumstances of the event obtained through interrogation of Heather.

The appellee’s contention that the statements were admissible as spontaneous statements or excited utterances is also without merit.

Section 90.803(1), (2), Florida Statutes (1979), providing for hearsay exceptions, defines these statements as follows:

(1) SPONTANEOUS STATEMENT. —A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.
(2) EXCITED UTTERANCE. — A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

It is clear that Heather’s statements were not made while she was perceiving the event or condition or immediately thereafter, or even at her first opportunity.

The supreme court in the case of Huntley v. State, 73 Fla. 800, 75 So. 611 (1917), held that it was error for a child’s mother to detail assertions claimed to have been made to her by her child who had been assaulted, even though the defense counsel did not object to the testimony at the time of trial. In the Huntley case, the court held that the statements were not spontaneously made by way of complaint but in response to a scolding interrogation by the mother. In the case sub judice, Heather made no spontaneous statements, but only responded to questions by a police officer.

In order for the spontaneous statement exception to the hearsay rule to be applicable, there must be some occurrence startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting. The utterance must have been made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance, and the utterance must relate to the circumstances of the occurrence preceding it. The Government of the Virgin Islands v. Dyches, 507 F.2d 106 (3rd Cir. 1975), cert. denied, 421 U.S. 917, 95 S.Ct. 1579, 43 L.Ed.2d 783 (1975). Additionally, the burden is upon the state to lay a proper predicate for the admission of such testimony by showing either by the child’s condition or by her own testimony that special circumstances exist. Since Heather did not testify at the trial, it was incumbent upon the state to show by Heather’s condition that she did not have an opportunity to reflect or deliberate. The state failed to meet its burden in the case sub judice.

There was no testimony to show that Heather was dazed, excited, or hysterical, or that she was anything other than calm. The statement was not made until several hours after she had been returned to her home and was not made to her mother or grandmother, but brought out by interrogation. According to her grandfather, she was normal and playing in the yard at the time the police officer came to investigate the incident. The doctor who examined her stated that she was not visibly upset and was in fact withdrawn.

The appellee’s reliance on Beausoliel v. United States, 107 F.2d 292 (D.C.Cir.1939), is misplaced. In that case, a mother was allowed to testify as to her conversations with her daughter shortly after the incident in question. However, the child also testified at the hearing. Additionally, the declarations of the child were made under such circumstances and so recently after the occurrence that the idea of reflection or deliberation was precluded. In the case sub judice, Heather did not testify, and the state laid no other predicate to show that Heather was under the stress of excitement caused by the event at the time the statement was made.

In view of our holding concerning Heather’s statements, it is not necessary to consider the appellant’s other points on appeal.

We reverse and remand for a new trial.

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


author: BOARDMAN, Judge.

text:
    Linda SWARTZ, Appellant, v. Neil T. SWARTZ, Appellee.
    No. 81-1673.
    District Court of Appeal of Florida, Second District.
    April 14, 1982.

      James V. Lobozzo, Jr., Sebring, for appellant.
    Nicholas G. Schommer, Sebring, for ap-pellee.
   BOARDMAN, Judge.

Linda Swartz appeals the trial court’s order setting aside a prior final judgment of dissolution and granting a rehearing on all matters except the dissolution of marriage itself. The former husband, a serviceman, who was represented by counsel during the dissolution proceeding, contends that he was prejudiced by reason of his being a member of the military service in that he could not be present at the original hearing on the petition for dissolution. However, the husband and his attorney received notice of the hearing and simply failed to appear, and a default judgment was entered against the husband. When a serviceman is prejudiced by reason of his military service, the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.App. § 520, provides that the judgment entered against him is voidable. On that basis, the original final judgment was vacated and a new trial ordered.

A review of the record shows that the husband has clearly failed to demonstrate prejudice resulting from his military service and therefore is not entitled to relief from final judgment pursuant to the Soldiers’ and Sailors’ Civil Relief Act. A key factor in determining prejudice is the diligence with which a serviceman takes advantage of the opportunities to preserve the rights afforded him during the course of the litigation. Robbins v. Robbins, 193 So.2d 471 (Fla. 2d DCA 1967). Here, although the husband received prior notice of each and every step taken in the Florida proceeding, he simply made no effort to preserve his rights at the proper time(s) once he was aware of the ongoing litigation.

In Robbins, the husband was denied the protections of the Civil Relief Act because he failed to abide by a separation agreement regarding child support and custody, then took no action until the wife called the matter up for hearing on her counterclaim. In the case sub judiee, the husband knowingly disobeyed the final judgment by retaining custody of his daughter and refusing to return her; moreover, he did not take any legal action until his income was garnished to enforce child support payments.

A serviceman applying for suspension of legal proceedings under the Civil Relief Act must exercise good faith; inexcusable noncompliance with an agreement related to child support and family responsibilities is presumptive evidence of bad faith. Robbins at 473.

The husband here is not entitled to the equitable relief of a hearing because his rights were not prejudicially affected as a result of military service; any disadvantage to him resulted from his own intentional and informed actions. It was not the intent of Congress in passing the Soldiers’ and Sailors’ Civil Relief Act to protect persons who wilfully disregard court orders.

Accordingly, we REVERSE the trial court’s order and REMAND for reinstatement of the original final judgment.

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