author: SHIVERS, Judge.

text:
    John Stokes JOINER, Appellant, v. STATE of Florida, Appellee.
    No. PP-123.
    District Court of Appeal of Florida, First District.
    May 1, 1980.
    Michael J. Minerva, Public Defender, Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Raymond Marky, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

Joiner, convicted after a jury trial of burglary of a dwelling, grand theft, possession of controlled substances, and possession of drug paraphernalia, seeks reversal of his convictions on the grounds that: (1) evidence of his prior criminal activities was improperly introduced by the state and his requested instruction on entrapment was erroneously denied; (2) evidence of his possession of drug paraphernalia was insufficient to withstand the motion for judgment of acquittal; (3) separate sentences for possession of controlled substances and grand theft were improper because his possession was part of the asportation necessary to sustain the grand theft charge; and (4) prejudicial comments made by the prosecutor during closing arguments destroyed Joiner’s right to a fair trial. After thorough review of the record and applicable law, we affirm.

Joiner burglarized a dwelling, stealing numerous items contained therein on December 13, 1978, while the premises were under police surveillance. Police officers stopped Joiner’s pick-up truck jointly occupied by Joiner, the driver, and Cliff Stone, a confidential informant, a short distance from the burglary scene. Prescription drugs, which had been stolen from the dwelling and which formed the basis for the possession of controlled substances charge, were found on the front seat of the truck near the driver’s side. A bent household spoon containing cocaine residue was found on the dashboard of the truck.

During opening arguments, Joiner announced that his defense would be based, in part, upon the theory that he had been induced to commit the burglary by the confidential informant, Stone. Based upon Joiner’s announced entrapment defense, the state introduced evidence during its case-in-chief as to Joiner’s involvement in other burglaries, his reputation as a thief, and his prior convictions. Joinder did not testify in his own behalf, but rather sought to establish his entrapment defense primarily through cross-examination of the state’s witnesses. At the conclusion of all the evidence, the trial court denied Joiner’s requested instruction on entrapment.

We find that the trial court properly refused the requested instruction on entrapment. Although entrapment may be established through cross-examination in the state’s case, Weaver v. State, 370 So.2d 1189 (Fla. 4th DCA 1979), the evidence here was insufficient to show that Joiner was instigated, induced, or lured into the commission of a crime which he had otherwise no intention of committing. Blackshear v. State, 246 So.2d 173 (Fla. 1st DCA 1971); Koptyra v. State, 172 So.2d 628 (Fla. 2d DCA 1965). Since the evidence was insufficient to raise the issue of entrapment, the court’s refusal to instruct on entrapment was proper. In light of Joiner’s announced reliance on an entrapment defense, evidence of Joiner’s predisposition to commit burglary was properly introduced in the state’s case-in-chief. Cf. Weaver v. State, supra.

Although the pick-up truck in which drug paraphernalia were found was jointly occupied by Joiner and Stone, we find that the evidence was sufficient to establish Joiner’s constructive possession. From their verdict, it is apparent that the jury believed Stone’s testimony that he had not placed the spoon in the pick-up truck and that Joiner had used a similar spoon which belonged to him to dissolve cocaine. These circumstances were sufficient to exclude any reasonable hypothesis except that of Joiner’s guilt. Cf. Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965). See also, Cummings v. State, 378 So.2d 879 (Fla. 1st DCA 1979).

We conclude that separate sentences for possession of controlled substances and grand theft were proper. Count II alleged that Joiner:

. did knowingly obtain or use, or did endeavor to obtain or to use a television set, two stereo systems, numerous record albums, assorted jewelry, assorted household appliances and utensils, of the value of $100.00 or more, .

The evidence established that property valued at more than $100.00 including two televisions, two stereo systems, a .22 rifle, power tools, kitchen appliances and accessories, and clothing, was taken from the dwelling. Prescription drugs, which formed the basis of the possession of controlled substances offense charged in Count IV, were also taken from the dwelling during the theft.

Joiner argues that separate sentences are improper under Section 775.-021(4), Florida Statutes (1977), because possession of the controlled substances was an essential element of the grand theft. Since Joiner, with the drugs in his possession, was seized only moments after he had left the scene of the burglary, he asserts that aspor-tation of the drugs, necessary to support the grand theft charge, was not completed; therefore, Joiner argues, the two crimes were not separate and distinct. We disagree. Section 775.021(4), Florida Statutes authorizes separate sentences for acts constituting violations of two or more criminal statutes committed in the course of one criminal transaction or episode. However, that section precludes sentencing on lesser included offenses arising out of the same criminal transaction as the higher offense. McClendon v. State, 372 So.2d 1161 (Fla. 1st DCA 1979).

Possession of controlled substances is clearly not a category (3) lesser included offense of grand theft under Brown v. State, 206 So.2d 377 (Fla.1968). Since the allegata of Count II does not comprehend all the elements of possession of controlled substances, possession of controlled substances can not be a category (4) lesser included offense of grand theft. Brown, supra at 383, clearly provides that to be a category (4) lesser included offense, the information must allege all of the elements of the lesser offense. Joiner’s argument that McClendon, supra, holds contrary is not persuasive. In McClendon, the defendant was convicted separately for grand larceny and robbery although the items charged as taken in the grand larceny were taken in the same continuous sequence of events as the item alleged to have been taken during the robbery. McClendon noted that larceny is a necessarily included offense of a robbery. It is well established that where several objects which are the subject of larceny are stolen at the same time, from the same place, and under the same circumstances with the same intent, only one larceny has been committed. Hearn v. State, 55 So.2d 559 (Fla.1951). To allow the State, under such circumstances, to divide this single offense into several larcenies would be viola-tive of the double jeopardy protections because there is only a single taking. Id. Since under the facts in McClendon, only a single larceny occurred and such larceny was necessarily included in the robbery offense, separate convictions and sentences for robbery and grand larceny were improper under either double jeopardy principles or Section 775.021(4). Florida Statutes (1977).

Although several comments made by the prosecutor during closing arguments appear improper, in view of Joiner’s lack of objection or motion for mistrial, we find the issue not properly preserved for appeal. In Cumbie v. State, 378 So.2d 1 (Fla. 1st DCA 1978), we held that a prosecutor’s challenged argument will be reviewed on appeal only when a timely objection is made. We recognize that the Fourth District has opined that a prosecutor’s closing arguments may be so prejudicial that a new trial may be granted regardless of lack of objection. Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979). However, our conclusion that the contemporaneous objection and motion for mistrial rule, enunciated in Clark v. State, 363 So.2d 331 (Fla.1978), applies to improper prosecutorial arguments is strengthened by the decision of the Supreme Court in State v. Cumbie, 380 So.2d 1031 (Fla.1980), which held that a motion for mistrial, made after jury instructions and retirement of the jury for deliberation, came too late to preserve for appeal Cum-bie’s objection to the prosecutor’s improper argument. Even if, as suggested in Peterson, supra, improper arguments may constitute fundamental error so as to obviate the requirement of an objection and motion for mistrial, we do not find the prosecutor’s comments here to be so irradicably prejudicial that the error could not have been waived by Joiner’s failure to object and to request a mistrial.

Accordingly, the judgments and sentences are affirmed.

MILLS, C. J., and ERVIN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Gerald D. CURTS, Appellant, v. W. K. DAUGHERTY and Travelers Insurance Company, Appellees.
    No. QQ-424.
    District Court of Appeal of Florida, First District.
    May 1, 1980.
    Ronald L. Bloom, of Smith, Davenport, Bloom & Harden, Jacksonville, for appellant.
    Charles Vocelle, of Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appel-lees.
   SHIVERS, Judge.

This appeal is from an Order of the Judge of Industrial Claims (JIC) denying appellant’s claim for workmen’s compensation benefits. The JIC found that claimant was not injured by accident arising out of and in the course of his employment with appellee Daugherty. This finding was based on the testimony of Raymond Dix. The JIC found that claimant’s present physical impairment related to an accident that occurred before July 2, 1976, sometime during 1973. The JIC did not resolve the conflicting medical evidence. We reverse and remand for the taking of additional evidence.

On March 9, 1973, claimant sustained an injury to his back that resulted in a 10% permanent partial disability rating. Claimant' was paid workmen’s compensation benefits for this injury and returned to construction work in less than six months.

Claimant alleged that he reinjured his back while working for Daugherty on July 2, 1976, the Friday before the July 4th holiday weekend. The following is a brief summary of claimant’s testimony. Between 4:30 and 5:00 p. m. he packed his tools in a cardboard box, placed a sheet of plastic over the tools to protect them from a light rain, and left the job site, the interior of a house under construction, to place the box filled with tools in his van. Between the house and the van, he slipped in an area that had been washed out by a heavy rain earlier that day. When he slipped, he went down on one knee, but he did not fall or drop his tools. He immediately felt a pain in his back. He loaded his tools in the side door of his white van and drove home in pain.

Because of the holiday weekend, claimant did not see a doctor until July 6, 1976. Claimant notified his employer of the alleged accident on July 6, 1976. Both the claimant and his wife testified as to claimant’s condition following the alleged accident.

Mr. Dix, a co-employee, was working as the job foreman on July 2, 1976. Mr. Dix’s testimony was that he and Mr. Daugherty, the employer, were talking in front of the house on the day and at the time of the alleged accident. Mr. Dix testified that it was not raining at the time of the accident, that he saw claimant make more than one trip between the house and the van, and that claimant loaded his tools in the rear door of claimant’s black van. Mr. Dix testified that he observed claimant at all times and that claimant did not slip.

The appellees paid claimant temporary total disability compensation from July 6, 1976 to May 30,1978, together with medical benefits which included the cost of surgery to claimant’s back.

Another employee of Daugherty was subpoenaed by the employer for the final hearing but did not appear. According to the testimony of Mr. Dix, Mr. Daugherty was standing in front of the house with Dix at the time of the alleged accident. Mr. Daugherty did not testify. Mr. Dix testified that claimant’s van was black. Claimant said it was white. Mr. Dix testified that claimant came out of a side door of the house under construction. Claimant said that he came out of a rear door and that the door Mr. Dix described had not been constructed on July 2, 1976. Mr. Dix testified it was not raining. Claimant testified it had rained heavily earlier in the day and that it was raining lightly at the time of the alleged accident. Certain weather reports referred to by claimant are not included in the record.

We recognize the role of and the responsibility of the Judge of Industrial Claims as the trier of fact. He based his ruling on the testimony of Mr. Dix. However, the conflicts in the testimony of appellant and that of Mr. Dix can be more justly resolved by the taking of additional evidence. This evidence may have a great bearing on the decision to be made by the Judge of Industrial Claims. To assure a just result and to assure that the issue as to whether claimant sustained an accident arising out of and in the course of his employment with Daugherty, the cause is remanded for the taking of additional evidence. Schafer v. St. Anthony’s Hospital, 327 So.2d 221 (Fla.1976).

ERVIN and SHAW, JJ., concur.

      . The issue of whether appellees are estopped to deny the fact of the injury will not be decided at this time, but see Painter v. Board of Public Instruction of Dade County, 223 So.2d 33 (Fla. 1969).


author: PER CURIAM.

text:
    The SCHOOL BOARD OF SARASOTA COUNTY, Florida, Appellant, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION et al., Appellees.
    No. 79-956.
    District Court of Appeal of Florida, Second District.
    May 2, 1980.

      Daniel H. Kunkel of Law Offices of Philip S. Mortensen, Sarasota, for appellant.
    Thomas W. Brooks, Gen. Counsel, Tallahassee, for appellee Florida Public Employees Relations Commission.
    C. Anthony Cleveland, Staff Atty., Tallahassee, for appellee Sarasota County Teachers Association.
   PER CURIAM.

The School Board of Sarasota County petitions for judicial review of an administrative decision of the Public Employees Relations Commission. It cites numerous alleged errors, including the conducting of an election under the circumstances of this case, failure of PERC to comply with statutory time requirements and the failure of PERC to designate certain employees as managerial or confidential.

The court finds that all of the points on appeal have been determined according to law and that PERC, in its handling of the cause, committed no reversible error, except as hereinafter set forth.

PERC did determine that the school board’s coordinator of evaluation services did not occupy either a managerial or confidential position. The evidence relating to that position was undisputed and clearly qualified the position as managerial, and such designation is hereby given such position. In all other respects, the orders are affirmed.

The request for attorney fees and costs is denied.

HOBSON, Acting C. J., OTT, J., and HENSLEY, ROBERT E., Associate Judge, concur.

      . We note that PERC exceeded the 90-day time limit for its final order in violation of Section 120.59, Florida Statutes. The school board argues that this delay resulted in severe prejudice in that the elections were scheduled during the last hectic week of the school year. PERC contends that the delay was necessary in order to respond to the 94 exceptions filed by the school board and the extensive arguments presented in the brief.
      The school board has not maintained that the elections were unfairly conducted because of the delay, but only that the timing was inconvenient to its personnel. We are unable to agree that the error was so prejudicial as to warrant a reversal and new election on that basis. This is true only because the school board was partially responsible for the additional time required to investigate the 94 exceptions. We once again caution PERC that it should make every effort to comply with the 90-day limitation in rendering its orders. If the complexity of the case appears to require more than 90 days, PERC has the option of requesting a stipulation for a waiver or extension of the time limit. § 120.59(1), Fla.Stat.


author: DANAHY, Judge.

text:
    Tomas BASTEN, a/k/a Sandy Lee, Appellant, v. STATE of Florida, Appellee.
    No. 79-1479.
    District Court of Appeal of Florida, Second District.
    May 2, 1980.

      Jack 0. Johnson, Public Defender, Bar-tow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Tomas Basten was indicted by the grand jury for first degree murder and robbery. Basten pleaded nolo contendere reserving the right to appeal the denial of his pretrial motion to suppress his confession. Pursuant to agreement, the trial court accepted his plea and adjudicated Basten guilty of both charges and sentenced him to concurrent terms of life imprisonment.

Basten recognizes that the Florida Supreme Court in Brown v. State, 376 So.2d 382 (Fla.1979) (filed after Basten entered his plea), held that a confession is not dis-positive as a matter of law and, therefore, that the denial of a motion to suppress a confession cannot be preserved for appeal based on a plea of nolo contendere. Basten contends, however, that the court should allow him to seek to withdraw his nolo plea as the appellant in Brown was allowed to do. We agree.

Accordingly, we dismiss this appeal and direct the trial court to allow Basten thirty days from the date of our mandate to file a motion to withdraw his plea and set aside the judgments and sentences under the procedure outlined in Pittman v. State, 382 So.2d 1227 (Fla.2d DCA 1980), and Arnold v. State, 379 So.2d 1003 (Fla.2d DCA 1980).

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

      . This court in Oesterle v. State, No. 79-1878, 382 So.2d 1293 (Fla.2d DCA April 18, 1980), held that Brown, supra, should not be interpreted to mean that the parties cannot, with the court’s approval, stipulate that the suppression of a confession is dispositive. The denial of a motion to suppress a confession will, in such an instance, be appealable after a plea of nolo contendere. The first district court of appeal reached the same conclusion in Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980).


author: McCORD, Judge.

text:
    Thomas E. WILKS, Appellant, v. SWIFT AND COMPANY, a foreign corporation, and Esmark, Inc., a foreign corporation, Appellees.
    No. PP-27.
    District Court of Appeal of Florida, First District.
    May 6, 1980.
    Brent M. Turbow and Arthur T. Boone, Jacksonville, for appellant.
    Gary A. Budd of Toole, Taylor, Moseley & Joyner, Jacksonville, for appellees.
   McCORD, Judge.

Appellant Wilks appeals from the trial court’s order dismissing his complaint as to appellee Esmark on the ground of lack of in personam jurisdiction. ' We find that the Florida long-arm statute does reach Esmark in this case and, therefore, we reverse.

Appellant filed a complaint against two foreign corporations — his employer, Swift and Swift’s parent company, Esmark— seeking relief from a denial of pension benefits. In its answer, Esmark moved to dismiss the complaint as to it, asserting insufficient contacts with the state. The record shows that Swift does business in Florida. The pension plan under which appellant was covered was entitled “Esmark Pension Plan.” The plan covered employees of Es-mark or any of its participating U.S. subsidiary companies, of which Swift was one. A printed pamphlet explaining the pension plan to employees is contained in the record. That pamphlet shows:

Esmark, Inc., administers the Plan and acts as the Plan fiduciary. The board of directors of Esmark, Inc., appoints the members of the Pension Board annually. The Pension Board consists of four members. This Board acts for Esmark, Inc., in administering the Plan. Although the Pension Board cannot alter the terms, conditions or benefits of the Plan, it does make the decisions regarding questions, interpretations and application of any Plan provisions.
All of the Plan’s funds are held in the Esmark, Inc., Pension Trust under a trust agreement with Bankers Trust Company of New York.

Appellant’s uncontradicted affidavit in the record shows that “all pension benefits were to be paid in Jacksonville.”

Section 48.193(l)(g), Fla.Stat., provides that a person submits himself to jurisdiction in this state if he “breaches a contract in this state by failing to perform acts required by the contract to be performed in this state.” Appellant’s complaint alleged that Esmark breached its contract with appellant regarding the pension plan, and his affidavit alleged that the pension benefits were to be paid in Jacksonville, Florida. Appellant’s pleadings were sufficient to subject Esmark to in personam jurisdiction in Florida pursuant to § 48.193(l)(g). In contending that the long-arm statute does not reach it, Esmark argues that the trustee of the pension plan trust may be a necessary party in this suit, a question which is not properly before us at this time and upon which we make no ruling; nevertheless, Esmark is a proper party at this point and is subject to jurisdiction in the State of Florida pursuant to the above-cited authorities.

REVERSED.

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


text:
    Jimmy E. DRIGGERS, Appellant, v. STATE of Florida, Appellee.
    No. PP-45.
    District Court of Appeal of Florida, First District.
    May 6, 1980.
    Jimmy E. Driggers, pro se.
    Jim Smith, Atty. Gen., Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

The record conclusively shows that the plea bargain in this case was only that, in exchange for appellant’s pleas of guilty to two counts of burglary, his sentences would run concurrently with any sentence he might receive in Alabama, where other charges were pending against him. There was no agreement that appellant’s sentences on the burglary counts would also run concurrently; therefore, the order of the trial court denying the motion to vacate sentence is affirmed.

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


author: WENTWORTH, Judge.

text:
    SOUTHERN CULVERT PIPE CO., Appellant, v. Robert D. OSWALT, Appellee.
    No. PP-315.
    District Court of Appeal of Florida, First District.
    May 6, 1980.

      J. Caleb Clarke, III, of Saveli, Williams, Cox & Angel, Atlanta, Ga., for appellant.
    Richard Oehler, Tampa, for appellee.
   WENTWORTH, Judge.

The appellant urges several points on appeal including a contention that the deputy commissioner erred in excusing claimant’s untimely notice of injury. § 440.185, Florida Statutes (Supp.1978). Although we affirm all points raised, the notice issue requires discussion.

On November 17, 1978, Oswalt experienced sharp pains while manually moving a steel beam off a forklift at work. His supervisor had assigned him the job of welding a jib crane, which involved moving beams weighing approximately 300 pounds with the forklift. The record supports the order which states

that the work was heavier than was required by his usual duties; that he had not been furnished a helper; that he was working outside on an unusually hot day, although he ordinarily worked inside; and that he was under time pressure to complete the job that day. Under these circumstances, I find that the claimant’s myocardial infarction did result from an unusual strain and exertion not routine to the type of work he was accustomed to performing. See Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962).

He had continuing pain, reported his symptoms, and his supervisor testified:

. he broke out in a sweat. So, I told Bob to go up in the plant and sit down and cool off a little bit . and I guess maybe thirty, forty-five minutes later I came back by and asked him if he was feeling any better and he said, “No.” So, I suggested that he call his wife and get transportation to go home

Mrs. Oswalt picked up her husband, went to the doctor’s office and then drove to the hospital where Oswalt’s heart attack was diagnosed and.treated. The next day she phoned the supervisor, advising him Oswalt had suffered a heart attack and was in the hospital. She also phoned a few days later to discuss insurance coverage but was told by one of the employer’s clerical staff, who was unaware of the foregoing events, that worker’s compensation coverage was unavailable because “it [the heart attack] didn’t happen on the job.”

After the Oswalts consulted an attorney, a formal claim for compensation was sent to appellant in late January 1979. In the order entered on the claim, the deputy found:

The claimant candidly admits that he did not give timely notice, but states that his failure to give notice was because he was unaware that his injury was compensable under the Workers’ Compensation Law. I find that he did give notice as soon as he reasonably realized that the injury was compensable; further, there is no evidence that the employer was prejudiced in any way by the late notice, (emphasis supplied)

The order would appear to be incorrect to the extent it finds lack of subjective realization of compensability to be an adequate excuse for noncompliance. 3 A, Larson. Workmen's Compensation Law, § 78.47 (1976). In the circumstances presented here, however, we find the employer had knowledge of all relevant facts affecting the basis for the claim job-related accident causing injury. The unrebutted facts show the employer knew that Oswalt became ill on the job while working on the jib crane; that he required hospitalization; and that a heart attack was diagnosed, all without significant delay. A short time later he inquired of the employer (through his wife) about worker’s compensation benefits for the heart attack. The inquiry in these circumstances was sufficient to put employer on notice of the injury when considered in conjunction with the other facts known to the employer. Cf. Tower King, Inc. v. Morris, IRC Order 2-3612 (Nov. 22, 1978). Further, as concluded by the deputy, there is no indication that the employer was prejudiced by the delayed formal notice. The employer was on notice of the injury and the ultimate conclusion on this issue was correct.

We note also that the self-executing nature of the worker’s compensation law imposes upon employers the obligation not to mislead an injured employee by information conveyed or omitted in response to his inquiry. See generally Baptist Village v. Newton, IRC Order 2-3551 (Oct. 2, 1978).

Affirmed.

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


author: MILLS, Chief Judge.

text:
    ORANGE STATE MARINE and Reliance Insurance Company, Appellants, v. Walter SNACK, Appellee.
    No. QQ-342.
    District Court of Appeal of Florida, First District.
    May 6, 1980.
    C. Thomas Ferrara of Pitts, Eubanks & Ross, Orlando, for appellant.
    Edward H. Hurt and Donna L. Bergh, Orlando, for appellee.
   MILLS, Chief Judge.

Orange State Marine, the employer, and Reliance Insurance Company, the carrier, appeal from an award of attorney’s fees by the Judge of Industrial Claims in a workers’ compensation case. We affirm.

After Walter Snack, the employee, filed a claim and an application for a hearing, the employer-carrier deposed him. Subsequently, a second application for hearing was filed and a second deposition was taken by the employer-carrier. At the time the depositions were taken, the claim had not been controverted nor had 21 days passed without payment. Thereafter, claim for compensation was withdrawn and three days later Snack’s attorney petitioned the Judge to establish a reasonable attorney’s fee for his attendance at the depositions, pursuant to Section 440.30, Florida Statutes (1978). A fee of $400 was awarded.

The employer-carrier urges that the factors considered in the order imply that the Judge awarded the fees pursuant to Section 440.34, Florida Statutes (1978), and that if the award was made pursuant to Section 440.30, the Judge erred in interpreting and applying the statute. It also urges that because the claim for compensation was voluntarily withdrawn before the petition for attorney’s fees was filed, the Judge lost jurisdiction to adjudicate and award attorney’s fees.

The petition for attorney’s fees expressly relied on Section 440.30 as the basis for the fees and there is nothing in the order indicating that the award was made on any other basis. Section 440.30 provides in pertinent part:

“If the claim has not been controverted or if 21 days have not passed without payment, then the carrier or employer taking the deposition shall pay the claimant’s attorney a reasonable attorney’s fee for attending said deposition.”

The employer-carrier concedes that under the facts of this case the attorney’s fee is justified if the strict language of the statute is applied. The statute is clear and unambiguous and it was properly applied by the Judge.

As for the jurisdictional challenge, the attorney’s right to a fee vests upon his attendance at a deposition which comes within the provisions of Section 440.30 and the Judge is not divested of jurisdiction to award the fee by the withdrawal of the claim.

The employer-carrier also challenges the amount of the fee. We have reviewed the record and the order and find no error.

AFFIRMED.

ERVIN and SHIVERS, JJ., concur.


text:
    KEN LONES LANDSCAPING, INC., and Middlesex Insurance Company, Appellants, v. J. B. TUCKER, Appellee.
    No. QQ-492.
    District Court of Appeal of Florida, First District.
    May 6, 1980.

      H. George Kagan of Miller & Hodges, Miami, for appellants.
    Mitchell J. Lipcon of Friedman & Lipcon, Miami, for appellee.
   McCORD, Judge.

Employer/carrier appeals from an order of the Judge of Industrial Claims which awarded appellee Tucker temporary total disability benefits for 68 weeks and compensation for a 5% permanent impairment of the right hand. We affirm in part and reverse in part.

On July 3,1974, Tucker was injured while working for employer, Ken Lones Landscaping, Inc., as a lawn maintenance man when he stuck the point of a yucca plant underneath his thumbnail. He received medical treatment for the puncture wound, but the wound failed to heal. On May 13, 1976, almost two years after the injury, Dr. Indgin first treated Tucker’s still infected thumb wound without success. Over a year later, in July 1977, Dr. Indgin diagnosed a lesion in the wound which he found to be a carcinoma. Thereafter, he referred Tucker to a surgeon, Dr. Stokley, who excised the diseased tissue.

Until he had the surgery, Tucker had continued to work for employer. His duties included spraying chemicals on plants. Those chemicals would often drip into the thumb wound, causing further irritation therein. In response to questioning as to whether the carcinoma was caused by the initial puncture wound, Dr. Indgin testified:

Well, there is a good possibility. Not just the initial puncture wound, because people receive puncture wounds very frequently without cancer development, but the fact that there was chronic infection there. In other words, there was a puncture wound and that led to the infection, and the chronic infection over the period of years probably, in my opinion, led to the carcinoma developing.

Dr. Indgin also testified:

“It’s hard to say whether the infection was the worst irritant or the foreign material from the splinter was the irritant.”

On May 15,1975, employer terminated its workers’ compensation insurance through appellant/carrier. Dr. Indgin testified that the cancer probably did not form until three to six months prior to the diagnosis thereof (almost two years after termination of the appellant/carrier’s coverage).

Tucker testified that he discussed the diagnosis of cancer in his thumb with his employer; that his employer advised him that he was covered by the employer’s insurance and to proceed with the surgery. Tucker testified that he was out of work for 16 months following his surgery; that he attempted to find work, but potential employers insisted on seeing a release from the physician, which he did not obtain until November, 1978. However, his testimony indicated that he had worked “a day here and there” during those 16 months. Tucker also testified that he suffers a stiffness in his thumb, and he demonstrated to the Judge of Industrial Claims how that stiffness affects his grip.

In his order, the Judge of Industrial Claims found that the carcinoma was com-pensable and that employer/carrier is liable for the medical expenses and consequent impairment Tucker suffers. The Judge of Industrial Claims found that, in view of the testimony that Tucker is having some trouble with the use of his hand and in view of the fact that his nail had been removed and a skin graft applied, Tucker has a 5% physical impairment of his right hand. The Judge of Industrial Claims concluded that Tucker was out of work from July 26,1977, to November 16, 1978, and, upon that finding, he declared that Tucker was entitled to temporary total benefits for that period of time.

Employer/carrier has raised the following four points in this appeal.

I. Whether the Judge of Industrial Claims erred in failing to find the claim barred by the running of the statute of limitations and in finding that treatment rendered by Drs. Indgin, Stokley, and South Miami Hospital was authorized.
II. Whether the Judge of Industrial Claims erred in finding the carcinoma causally related to the industrial accident of July 3, 1974.
III. Whether the Judge of Industrial Claims erred in awarding permanent disability to the right hand where injury was confined to the right thumb, a scheduled member for which permanent disability benefits are exclusively prescribed by § 440.15(3)(f), Fla.Stat.
IV. Whether the instant record fails, as a matter of law, to support an award of temporary total disability benefits from July 26, 1977, to November 16, 1978.

We affirm as to Points I and II. § 440.13(3)(b) and § 440.19(l)(a), Fla.Stat. (1977), provide that the statute of limitations for a workers’ compensation claim is two years after either (a) the date of accident or (b) the last payment of compensation benefits or (c) the last remedial medical treatment furnished by the employer. In the instant case, no two-year period passed from the time of the accident until the time of the claim during which Tucker did not receive remedial medical treatment. Therefore, his claim was timely. Tucker’s testimony is evidence that his employer was aware of the subsequent medical treatment he needed from Drs. Indgin and Stokley and from the South Miami Hospital due to the carcinoma and assured him that such treatment was covered. Further, Dr. Ind-gin submitted his bill and was paid by workers’ compensation insurance. Those facts support a finding that the doctors and the hospital were authorized.

As to Point II, carrier argues that the evidence shows that the repeated exposure to the chemicals after the accident was the cause of the cancer; that since the cancer was obviously caused by factors occurring after termination of coverage by this carrier, this carrier is not responsible for benefits accruing as a result of the cancer. However, Dr. Indgin’s testimony was competent, substantial evidence to support a conclusion that the carcinoma was a direct result of the initial wound and the subsequent lingering infection.

We reverse and remand on Point III. No evidence indicates that Tucker suffered an impairment to his hand that is greater than the usual hand impairment that results when a thumb is injured. Thus, the effect of the injury on the hand would have been covered by the scheduled compensation. The Judge of Industrial Claims should have limited the disability rating to the scheduled compensation for disability of the thumb itself as prescribed by § 440.-15(3), Fla.Stat. Compare Little River Bank and Trust Co. v. Neal, 154 So.2d 809 (Fla. 1963), and Town Garage, Inc. v. Shoemaker, IRC Order 2-3448 (1978). The cause is remanded on this point for reconsideration of impairment based solely upon the scheduled injury to the thumb.

We reverse and remand also on Point IV. Tucker’s own testimony established that he did work “a day here or a day there” during the time period from July 26, 1977, until November 16, 1978. Therefore, the Judge of Industrial Claims’ finding that Tucker was temporarily totally disabled during that period directly conflicts with the evidence. We remand for reconsideration on this point.

Affirmed in part, reversed in part, and remanded for reconsideration in light of this opinion.

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


text:
    Denise Duval BERDEAL, Appellant, v. Carlos G. BERDEAL, Appellee.
    Nos. 79-464, 78-2080.
    District Court of Appeal of Florida, Third District.
    May 6, 1980.
    Bailey & Dawes and William Berger, Miami, for appellant.
    Norman K. Schwartz, Miami Beach, and Carol Capri, Miami, for appellee.
    Before BARKDULL and HENDRY, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Schatz v. Schatz, 356 So.2d 892 (Fla.3d DCA 1978); Storer v. Storer, 353 So.2d 152 (Fla.3d DCA 1977); Herzog v. Herzog, 330 So.2d 116 (Fla.3d DCA 1976); Sections 61.13 and 61.16, Florida Statutes.


text:
    Octavio VALDES et ux., and Osvaldo Lopez et ux., Appellants, v. WESTERN KNAPP ENGINEERING COMPANY et al., Appellees.
    Nos. 79-534, 79-535.
    District Court of Appeal of Florida, Third District.
    May 6, 1980.
    Horton, Perse & Ginsberg, Carroll & Hal-berg, Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellees.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The plaintiffs appeal from a summary judgment holding that their claims, as against one of the defendants below, Western Knapp Engineering Company, were absolutely precluded by the running of the 12-year statute of limitation contained in Section 95.11(3)(c), Florida Statutes (1977). Subsequent to the entry of the order below, the supreme court held in Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla. 1979) that the statute could not constitutionally be applied to bar a cause of action which, like the one in this case, did not accrue until after the statutory period had already elapsed. In the light of the Sir-mons case, the appellee, Western Knapp, has candidly and commendably confessed error. Pursuant thereto, the judgment under review is

Reversed.


text:
    Santiago ROSELL, as Administrator of the Estate of Ebaldo M. Cruz, Appellant, v. MOTORS INSURANCE CORPORATION, Appellee.
    No. 79-1900.
    District Court of Appeal of Florida, Third District.
    May 6, 1980.
    Fernando F. Freire, Miami, for appellant.
    Kurzban & Kurzban and Steven M. Weinger, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. See Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Roehner v. Atlantic Coast Development Corp., 356 So.2d 1296 (Fla. 4th DCA 1978); Timmins v. Firestone, 283 So.2d 63 (Fla. 4th DCA 1973); Section 95.11(2)(b) Florida Statutes (1977) Fla.R. C.P. 1.110(d).


text:
    David J. SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 80-813.
    District Court of Appeal of Florida, Third District.
    May 6, 1980.
    David J. Smith, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, SCHWARTZ and PEARSON, DANIEL, JJ.
   PER CURIAM.

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


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Kent Arthur MURRAY, Jr., Appellee.
    No. 77-2575.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1980.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance for appellee.
   HERSEY, Judge.

This is an appeal by the state from an order dismissing Count Y of an Information. The charge involved is carrying a concealed firearm during the commission of a felony in violation of Section 790.07, Florida Statutes (1977).

As appellee prepared to board an early morning flight at Palm Beach International Airport he passed his' closed and locked briefcase through an x-ray security device located at the aircraft boarding gate. The x-ray attendant observed the outline of a pistol in the briefcase whereupon law enforcement officers seized the briefcase. Appellee was consequently detained and searched by a deputy sheriff who discovered a small packet of cocaine in one of appel-lee’s shoes. Appellee was charged with the felony of possession of cocaine and the felony of carrying a concealed weapon during the commission of a felony. Dismissal of the latter count produced this appeal.

We reiterate our previous holding that one who carries a firearm in a closed briefcase can be guilty of carrying a concealed firearm in violation of Section 790.-01(2), Florida Statutes (1977). Rogers v. State, 336 So.2d 1233 (Fla. 4th DCA 1976). Ipso facto, one who carries a firearm in a closed briefcase can be guilty of carrying a concealed weapon during the commission of a felony in violation of Section 790.07, Florida Statutes (1977).

The dismissal of the charge of carrying a concealed weapon during the commission of a felony was based upon the trial court’s interpretation of a portion of Section 790.25, Florida Statutes (1977), which provides in pertinent part:

EXCEPTIONS. — The provisions of ss. 790.05 and 790.06 shall not apply in the following instances and, despite said sections, it shall be lawful for the following persons to own, possess, and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes:
* * * St * sj:
(7) Any person traveling by private conveyance when the weapon is securely encased, or in a public conveyance when the weapon is securely encased and not in person’s manual possession; .

We hold that this exception (or, more properly, exemption) has no application to the facts of this case. That this is so is aptly demonstrated by examination of the language of the statute.

First, the exemption allows certain individuals under specified circumstances to be in possession of firearms without incurring the penalties for carrying or possessing them without a license. It does not, under any circumstances, permit carrying concealed firearms.

Second, there is no such thing as a license to carry a concealed firearm during the commission of a felony. Accordingly, there can be no exception to the requirement of a license.

Finally, Section 790.25(2)(a) specifically provides that the protections afforded by Section 790.25 “shall not apply to . any person using weapons or firearms in violation of . . . ” Section 790.07.

Having reached the conclusion that the exception does not apply, it is unnecessary to consider whether portions of Chapter 790 may be vulnerable to attack on constitutional grounds since the sections of the statute which apply here are clear and definite.

Therefore, we reverse the order of the trial court dismissing Count V of the Information and remand this cause to the trial court for such further proceedings as may be appropriate by virtue of this opinion.

REVERSED AND REMANDED.

BERANEK and HURLEY, JJ., concur.


text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellant, v. Karan HALL, an Individual, Appellee.
    No. 78-993.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1980.
    Nancy Little Hoffmann, and Robert D. Moses of Pomeroy, Betts & Wiederhold, Fort Lauderdale, for appellant.
    Wilton L. Strickland of Ferrero, Middle-brooks & Strickland, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed and remanded to the trial court for reconsideration in light of Dewberry v. Auto-Owners Insurance Company, 363 So.2d 1077 (Fla.1978).

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


author: BERANEK, Judge.

text:
    Lester LLOYD and Bea Lloyd, Appellants, v. POWELL BROTHERS, INC., Appellee.
    No. 79-1189.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1980.

      Nancy Little Hoffmann and Scott A. Di-Salvo, of Fazio, Dawson, Steinberg & DiSal-vo, Fort Lauderdale, for appellants.
    E. Bruce Johnson and Ronald A. FitzGer-ald of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   BERANEK, Judge.

Plaintiffs appeal from a final judgment entered on a jury verdict for the defendant in a personal injury action. Appellants contend that the evidence required that a verdict be directed against the appellee on the issue of whether a particular crane operator, who negligently injured plaintiff, was the employee of appellee or the borrowed servant of appellant’s own employer at the time of the injury. We have reviewed the record and the briefs and find that the borrowed servant issue was a proper one for submission to the jury on conflicting evidence. See Berrier v. Associated Indemnity Co., 142 Fla. 351, 196 So. 188 (1940), and Postal Telegraph & Cable Co. v. Doyle, 123 Fla. 695, 167 So. 358 (1936), modified 128 Fla. 707, 175 So. 515 (1937). We have examined appellants’ remaining point on appeal and find that error has not been demonstrated. The final judgment below is affirmed.

AFFIRMED.

ANSTEAD and HERSEY, JJ., concur.


text:
    Joseph E. BAXTER and Patricia A. Baxter, his wife, Appellants, v. SOUTHERN NATIONAL BANK OF BROWARD COUNTY, Appellee.
    No. 79-1852.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1980.
    Mary Ellen Shoemaker, Fort Lauderdale, for appellants.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, and Fischer, Moran & Johnston, P. A., Pompano Beach, for appellee.
   PER CURIAM.

Although the pleadings of the appellants were not well drafted, we believe they contained sufficient allegations to state a cause of action against the appellee bank for breach of contract. We find in the pleadings the following allegations:

1. That the appellants had a checking account with the bank and drew a check on said account payable to a named payee.
2. That the bank wrongfully paid the check to a different payee.
3. That as a result of the bank’s action the appellants suffered a loss of the amount for which the check was written.

Although these allegations appear at various places in a multi-count complaint, we believe they prevent the entry of an order of dismissal with prejudice. We do not believe the appellants’ pleadings stated a cause of action for punitive damages and therefore hold that the trial court was correct in striking that claim.

Accordingly, this cause is reversed and remanded with directions that appellants be allowed to file an amended complaint in accordance with the terms of this opinion.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


author: DOWNEY, Judge.

text:
    Marc SKORMAN, Petitioner, v. HOVNANIAN OF FLORIDA, INC., Respondent.
    No. 79-2575.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1980.

      Richard B. Burk, of Scott, Burk, Royce & Harris, P. A., Palm Beach, for petitioner.
    Thomas E. Kingcade, of Levy, Plisco, Perry, Shapiro, Kneen & Kingcade, P. A., Palm Beach, for respondent.
   DOWNEY, Judge.

Petitioner Marc Skorman seeks review by Petition for Writ of Certiorari of an order of the trial court dated November 28, 1979, requiring petitioner to produce copies of all correspondence between petitioner and his attorneys pertaining to the purchase of certain property and the good faith deposit which was put into escrow. Reference is made to certain interrogatories; however, the orders of November 29, 1979, and December 19,1979, under review relate only to respondent’s motion to produce.

The petitioner alleges that the parties entered into an agreement for purchase and sale of certain property pursuant to which the purchaser deposited the sum of $40,000 as good faith money with the law firm of Boose & Ciklin. The latter firm of attorneys represented petitioner in the transaction. The agreement, it is alleged, was subject to certain contingencies. When the contingencies failed to occur the deposit was returned to petitioner by the law firm of Boose & Ciklin pursuant to the agreement, and eventually this litigation ensued.

Respondent filed a motion requesting petitioner to produce, among other things:

“Copies of any and all correspondence between Marc Skorman and William Boose, III and/or Alan J. Ciklin pertaining to the purchase of this property or the good faith deposit which was put into escrow.”

Petitioner’s objection thereto was overruled and petitioner seeks review by Petition for Writ of Certiorari because he contends the correspondence referred to constituted privileged communications between attorney and client.

After receiving respondent’s response to the petition we issued an order relinquishing jurisdiction to the trial court for an in camera inspection of any correspondence between petitioner and his attorneys pertaining to the subject property or the escrow deposit for the purpose of determining whether the correspondence in question, or any of it, is privileged. The matter is now before us on petition to rehear that order. Petitioner contends no in camera inspection should be made, but if one is inevitable it should be made by a judge other than the one presiding over this case in order not to prejudice the resolution of the issues involved herein. We have granted the petition for rehearing in order to treat what we consider to be the focal question involved; i. e., whether the correspondence which respondent seeks to have produced falls within the protection of the attorney-client privilege and is thus immune from discovery.

Of course, not all communications between lawyer and client are privileged. According to Wigmore, the privilege attaches

“(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are at his instance permanently protected, (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.” 8 Wigmore, Evidence § 2292 (McNaughton rev. 1961)

Another definition of the privilege is contained in N.L.R.B. v. Harvey, 349 F.2d 900 (4th Cir.1965), wherein the court stated:

“ ‘The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.’ ” 349 F.2d at 904.

A review of the cases on the subject makes it clear that if a communication with a lawyer is not made with him in his professional capacity as a lawyer, no privilege attaches. Pollock v. U. S., 202 F.2d 281 (5th Cir.1954), cert. denied, 345 U.S. 993, 73 S.Ct. 1133, 97 L.Ed. 1401 (1953); Olender v. U. S., 210 F.2d 795 (9th Cir.1954), cert. denied, 352 U.S. 982, 77 S.Ct. 382, 1 L.Ed.2d 365 (1957); 8 Am.Jur.2d, Witnesses § 182. Thus, where a lawyer is engaged to advise a person as to business matters as opposed to legal matters, or when he is employed to act simply as an agent to perform some non-legal activity for a client the authorities uniformly hold there is no privilege. In Pollock, supra, the government called a lawyer as a witness to adduce proof of a taxpayer’s net worth. The lawyer objected to testifying on the grounds of privilege because the taxpayer was his client. The objection was overruled because the inquiry was restricted to showing certain acts in which the client deposited monies with the lawyer which were eventually used for making real estate investments. As that court put it, the lawyer was not acting in his professional capacity; his function was no different than it would have been if he were a broker or a banker.

In the present case Boose & Ciklin represented petitioner in this real estate transaction, including the preparation of the agreement between the parties. Boose & Ciklin were to hold the earnest money deposit in their trust account for disposition pursuant to the agreement, an ancillary function frequently performed by lawyers in the representation of their clients. Regardless of their acting as escrowee of the deposit money, the law firm continued to represent the petitioner and correspondence between them and their client which would ordinarily fall within the purview of the privilege should be none the less privileged because of the performance of that additional function. We believe such a conclusion is supported by the decision of the Supreme Court of Florida in Dominguez v. The Citizens Bank & Trust Company, 62 Fla. 148, 56 So. 682 (1911). In that case Dominguez sued The Citizens Bank and recovered a judgment. The bank assigned as error the refusal of the trial court to allow E. R. Gunby, a lawyer, to testify about communications between him and Dominguez when the latter consulted with him about his claim against the bank. Although Gunby was at that time Dominguez’ attorney, he advised Dominguez that he could not represent him in that case because he was also attorney for the bank. However, he offered to endeavor to obtain a settlement of the matter between them. Dominguez brought his books to Gunby’s office where Gunby reviewed them and attempted to advise Dominguez. When called as a witness by the bank, Gunby objected to testifying to any communications between Dominguez and him as being privileged. The court held:

“It is doubtless the law that, where an attorney represents both or all the parties in a transaction, conversations and transactions between such parties in the presence of the attorney and each other are not privileged conversations, but such attorney may be required to testify to such conversations and communications; but we think the better rule is that where the facts are such as they here appear to be, viz., that plaintiff went alone to see Mr. Gunby, as he says he did, because he was his retained attorney, and made statements to him in the absence of the other party, and which were apparently confidential, the trial judge committed no error in refusing to allow Mr. Gunby to testify.” 56 So. at 683.

We therefore conclude that any correspondence between petitioner and his lawyers relative to this transaction which is privileged under the principles heretofore discussed should not be produced. As this matter was presented to the trial court we can conceive of no way the trial judge could determine whether all or any of the correspondence referred to was privileged. He had no knowledge of the contents thereof. Thus, as a practical matter it seems to us that an in camera inspection should be held by the trial judge to determine whether some or all of the correspondence in question is privileged and thus not subject to the motion to produce. We reject the suggestion that the in camera inspection should be made by a trial judge other than the one presiding over this case. Such an inspection should have no more effect on the judge presiding over this case than, for example, a proffer of excluded evidence.

In view of the foregoing our order of March 17,1980, is vacated, the orders of the trial court being reviewed are quashed, and the cause is remanded to the trial court with directions to hold an in camera inspection of the correspondence in question and thereafter enter such order on the motion to compel production as is appropriate.

HERSEY and GLICKSTEIN, JJ., concur.

      . Throughout this record the petitioner’s name is spelled both Marc and Mark.


text:
    John CUNNINGHAM, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 80-430.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1980.
    John Cunningham, Jr., pro se, for appellant.
    No appearance for appellee.
   PER CURIAM.

This matter has been considered on the pro se appeal of the defendant from the denial of his 3.850 motion without a hearing. The appeal is considered pursuant to Florida Rule of Appellate Procedure 9.140(g). The judgment sought to be collaterally attacked in the trial court recites that the defendant was found guilty and sentenced for delivery of a controlled substance and for possession of the same controlled substance. See 15 Fla.Jur.2d, Criminal Law, Section 888; Drayton v. State, 372 So.2d 983 (Fla. 3d DCA 1979). We conclude that the record transmitted to this court does not conclusively show that the appellant is entitled to no relief and the order is, therefore, reversed and the cause remanded for an evidentiary hearing.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


author: GRIMES, Chief Judge.

text:
    STATE of Florida, Appellant, v. Paul James MURPHY, Appellee.
    No. 79-1435.
    District Court of Appeal of Florida, Second District.
    May 7, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Marc H. Saltón of Rock & Saltón, P. A., Holiday, for appellee.
   GRIMES, Chief Judge.

By this appeal, the state challenges the trial court’s order granting defendant Murphy’s motion to dismiss.

The state filed an information charging Murphy and two other defendants with a robbery in Pasco County. Murphy thereafter filed a motion to dismiss the information in which he alleged that the undisputed facts in the case did not establish a prima facie case of guilt against him. After a hearing, the court entered an order in which it dismissed the information. The court found that all of the evidence concerning the Pasco County robbery had been presented as Williams Rule evidence at a hearing on a motion to dismiss a charge against Mr. Murphy for a robbery in Pinel-las County. The court further found that because the Pinellas County judge had dismissed the Pinellas County charge after hearing the Pasco County evidence, it was bound by the Pinellas County judge’s decision under principles of res judicata.

The court erred in ruling that the Pinellas County judge’s decision was res judicata. The doctrine of res judicata will bar a prosecution only if the state has previously suffered an adverse judgment in a prosecution of the same defendant based upon the same cause of action. State v. Gunn, 381 So.2d 1186 (Fla.2d DCA 1980). The Pasco County case was a separate cause of action based upon different facts.

Appellee’s suggestion, made at oral argument, that the court below was really applying the broader doctrine of collateral estoppel is of no avail. While collateral estoppel can apply to different causes of action, it only serves to bind the parties in the second suit as to issues which were actually adjudicated in the first one. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Here, it cannot be said that this occurred. The court only received a stipulation that the Pinellas County judge had heard the evidence of the Pasco County robbery prior to having dismissed the Pinel-las County information. Williams Rule evidence of the Pasco County robbery, standing alone, could not possibly have convicted the defendant of the Pinellas County robbery. Thus, the court below could not rule as a matter of law that the Pinellas County judge had found that there was not a prima facie case against the defendant for the Pasco County robbery. The Pinellas County judge may have found that despite the presence of the Williams Rule evidence concerning the Pasco County robbery there simply was not enough other evidence to make out a prima facie case against the defendant on the Pinellas County robbery.

We reverse the order granting the motion to dismiss and remand the case for further proceedings consistent with this opinion.

SCHEB and CAMPBELL, JJ., concur.

      . Williams Rule evidence is evidence of other crimes which is admissible when relevant to prove a material fact in issue, such as proof of motive, intent, preparation, plan, knowledge or identity. See Williams v. State, 110 So.2d 654 (Fla. 1959).

      . See Busbee v. State, 183 So.2d 27 (Fla. 1st DCA 1966), in which the court noted, however, that res judicata could be applicable to some situations in which the second prosecution was not for the identical offense as the first.


author: RYDER, Judge.

text:
    Allen R. DENTON, a/k/a Allen Zollman, Appellant, v. STATE of Florida, Appellee.
    No. 79-1772.
    District Court of Appeal of Florida, Second District.
    May 7, 1980.

      Jack O. Johnson, Public Defender, Bar-tow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

The appellant was convicted of sexual battery, kidnapping, and robbery. He was sentenced to thirty years on the sexual battery charge. We affirm his conviction on all counts, however, we remand for a determination whether the appellant has been previously convicted of a felony in this state.

The appellant alleges the trial court erred in sentencing him to an excessive term for sexual battery. A defendant who has been convicted of a felony in Florida may be sentenced as an habitual felony offender. A habitual offender who is convicted of a felony in the second degree, may be sentenced to a term not exceeding thirty years. Section 794.011(5), Florida Statutes (1977), provides that sexual battery is a second degree felony. Therefore, if the appellant had been convicted previously of a felony, his sentence would not be excessive.

At the appellant’s sentencing hearing, defense counsel and the state attorney stated that the appellant had been convicted previously of a felony. The appellant, however, denied.this stating he believed the charge had been reduced to a misdemeanor. No document verifying the appellant’s status as a convicted felon was ever produced. Because we cannot determine from the record that the appellant was an habitual felony offender, we remand for clarification of this issue and if appellant is to be treated as an habitual felony offender and sentenced accordingly, then the trial court also is instructed to follow the procedure in relation thereto set forth in Eutsey v. State, 383 So.2d 219. If the trial court ascertains the appellant has not been convicted of a prior felony, it should enter an amended sentence for sexual battery not to exceed fifteen years.

AFFIRMED in part, but REMANDED for further proceedings consistent with this opinion.

GRIMES, C. J., and CAMPBELL, J., concur.


text:
    Stephen MAXWELL, Appellant, v. STATE of Florida, Appellee.
    No. 79-736.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1980.
    Richard L. Jorandby, Public Defender, Robert C. Fallon, and Bruce Zeidel, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Marion v. State, 287 So.2d 419 (Fla. 4th DCA 1974).

ANSTEAD, BERANEK and HERSEY, JJ., concur.


author: de la HOUSSAYE, Justice Ad Hoc.

text:
    STATE of Louisiana v. Wayne Robert FELDE.
    No. 66482.
    Supreme Court of Louisiana.
    April 7, 1980.
    Nathaniel Graves Thomas, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-respondent.
   de la HOUSSAYE, Justice Ad Hoc.

On November 15, 1976, defendant Wayne Robert Felde was charged with the crime of first degree murder of a Shreveport police officer in violation of La.R.S. 14:30. He pleaded not guilty and not guilty by reason of insanity. A sanity commission was appointed and its findings indicated the defendant was capable of assisting in his own defense. On February 21,1979, defendant’s court appointed counsel filed a Motion for a Change of Venue pursuant to Article 622 of the Louisiana Code of Criminal Procedure which was overruled. After defendant’s request for a change of court appointed defense counsel was denied, private counsel was retained by one of defendant’s sisters. Retained counsel filed a second Motion for a Change of Venue on August 31, 1979 and a Motion to Recuse the Caddo Parish judiciary on September 4, 1979. The Motion to Recuse was denied by Judge Gradon J. Kitchens, Jr. and writs to this Court on the motion were denied. State v. Felde, 375 So.2d 112 (La.1979). The second Motion for a Change of Venue was heard and denied by Judge James Clark on September 17, 1979. After three continuances, the trial date was set for January 9, 1980. On December 3, 1979, defendant filed a third Motion for Change of Venue and a Motion for a Continuance which were both denied by Judge Eugene W. Bryson, Jr. on December 24, 1979. Defendant filed for a Stay of District Court Proceedings on December 31, 1979 pending his application for Remedial Writs before this Court on the denial of his third Motion for a Change of Venue. We granted the writ and stayed the District Court proceedings in order to determine whether the pre-trial publicity of defendant’s trial warranted a change of venue as specified under La.C.Cr.Pr. Article 622. State v. Felde, 378 So.2d 1375 (La.1980).

Defendant asserted in his application that he was denied his constitutional rights to a fair and' impartial trial due to the continuing pre-trial publicity of his trial. See Louisiana Constitution of 1974, Article 1, Section 16. To prevent this asserted injustice, defendant filed a Motion for a Change of Venue of his trial on three different occasions throughout the lengthy preliminary stages of his prosecution. Louisiana Code of Criminal Procedure, Article 622 reads as follows:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

In order for a defendant to be entitled to have his trial moved to another parish he must prove more than a mere knowledge by the public of facts surrounding the offense. The burden of proof is on the defendant to show that there exists such prejudice in the collective mind of the community that a fair trial is impossible. State v. Sonnier, 379 So.2d 1336 (1979), on rehearing 379 So.2d 1368 (La.1980); State v. Matthews, 354 So.2d 552, (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977). Whether the defendant has made the requisite showing is a question addressed to the trial court’s sound discretion which will not be disturbed on review in the absence of an affirmative showing of error and abuse of discretion. State v. Sonnier, supra; State v. Matthews, supra; State v. Sheppard, supra.

A number of factors must be considered in determining whether to change venue. As this Court stated in State v. Bell, La., 315 So.2d 307: “Some relevant factors in determining whether to change venue are (1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.” State v. Bell, 315 So.2d 307, at 311 (La.1975).

In the present case, the defendant alleges the following facts surrounding his trial have tended to promote prejudice in the public mind: that the victim was a rookie policeman who had been on the force only eight months; that this incident was the first shooting of a police officer in the community in ten years; that there was a vast amount of publicity surrounding his prosecution and the subsequent prosecution and conviction of his sister who was charged in connection with the incident; that there were two subsequent shootings of other police officers during the preliminary stages of defendant’s prosecution in which the media coverage of all three shootings tended to promote an atmosphere of exaggerated law and order consciousness in the community; that the cumulative effect of these factors and the overwhelming amount of new coverage over the year of his prosecution created such an atmosphere as to render the attainment of a fair and impartial trial impossible.

Most of these facts were postulated to the court in defendant’s second Motion for a Change of Venue in September, 1979 before Judge Clark. Subsequent to the denial of that Motion, additional news coverage, pertaining to the conviction of defendant’s sister and the convictions of other individuals, was alleged to reinforce the emotionally charged atmosphere of defendant’s own trial. These subsequent facts prompted the filing of a third request for a venue change. As a result of this third filing, Judge Bry-son was called to review the evidence presented to Judge Clark and the events occurring after Judge Clark’s ruling in September, 1979. Judge Bryson included the seven factors enumerated in State v. Bell, supra and referred to the opinion of Judge Clark which divided the nature of publicity, one of the Bell factors, into four phases.

The first factor presented in Bell is the nature of pre-trial publicity and the degree circulated. Judge Clark had previously found the publicity extensive and widely circulated. Judge Bryson noted the first period or phase of media coverage included items of the shootings of the officer, reports and pictures of the accused and the officer’s funeral. Phase two concerned scattered coverage of defendant’s hospitalization, his plea and dissatisfaction with previous counsel. The third phase was defined as consisting of extensive news coverage of the filing of a second Motion for Change of Venue and the subpoenaing of numerous media personnel, of the filing of a Motion to Re-cuse all the judges in the first judicial district, and of the filing of a Motion to Close the Court to the Public. Judge Bryson noted that during this phase, defendant’s sister was tried and defendant had waived his Fifth Amendment rights to testify on her behalf at her trial. During the fourth phase, Judge Bryson discussed the filing of the third Motion to Change Venue in which there was no publicity connected with defendant’s case but publicity was found to surround the trials and convictions in the other police shooting cases. More media coverage was found when defendant’s counsel subpoenaed sixty-five newspaper representatives and personnel from television stations and issued subpoenas duces tecum ordering the production of media records, tapes and files.

After reviewing all evidence of these four phases, Judge Bryson determined that there was insufficient showing that the reports were inaccurate, inflammatory or unobjec-tive. The publicity was also determined to be generated either directly or indirectly by defense counsel in the filings presented to the court. The court found no connexity in the publicity generated by the other ongoing trials and the prosecution of the defendant.

The second test enumerated in State v. Bell, supra, is the connection of governmental officials and the release of the publicity. While police officials were found to have issued releases to the press, the reports were determined informational and no releases were issued by the District Attorney’s office.

Thirdly, the length of time between the dissemination of publicity and the trial was fourteen months. This period was ruled by Judge Bryson to be sufficient for any inflammatory effects to have subsided.

The charge of murder is the most serious offense in the law and it was not disputed as being an important factor for consideration by the court.

The area from which the jury was to be drawn was the Parish of Caddo, a community of about 250,000 persons.

The sixth factor analyzed was other events occurring in the community which could affect or reflect citizen attitudes. It was contended that the subsequent shootings of other police officers reflected an air of prejudice which would affect the ability to draw a fair and impartial jury. Judge Bryson found this contention to be erroneous and the assertion speculative in nature.

The final analysis concerned anything likely to affect the truth and veracity of the prospective jurors on voir dire. Testimony was presented by two experts in poll taking who indicated to the court that potential jurors would tend not to be truthful during voir dire. The court declined to give much weight to the testimony and found instead that the experts lacked personal observations of the community’s attitudes and personal knowledge of a voir dire examination. It should be noted that a “dry run” voir dire examination was not requested by defendant or performed by the court on its own motion. Other testimony presented at the hearing was from two attorneys who defended the individuals charged with the shootings of two other police officers. Their testimony revealed a feeling that jurors polled in each respective trial were less than candid in their voir dire examinations. Judge Bryson declined to find merit in their testimony, finding it to be biased in favor of their advocacy for their clients.

The trial judge held that defendant had failed to achieve his burden of proof to present evidence of prejudice existing in the public mind. In summary, the court found the defendant’s allegations to be no more than mere conjecture and speculation.

The extensive review of the evidence by the able trial judge in light of the tests enumerated in State v. Bell, supra presents a very close question to this Court. The trial court conducted a thorough and conscientious determination of lengthy and tedious proceedings. Our review of the transcripts indicates, however, that defendant made a sufficient showing of the great likelihood that prejudice was significantly possible in the community.

We note the extensive publicity occurred around certain filings of the defendant. We cannot agree, however, that all the activity might have been attributable to tactics used by defense counsel. The defense counsel had no bearing on the scheduling or determinations of two trials of others accused of police shootings, nor defendant’s choice to testify at his sister’s trial. While the flurry of media activity may have surrounded particular events, the activity of reporting was extensive and consistent for over a year. We note that over two hundred news articles were listed in the defendant’s brief. The articles continued to be published even during the filing of supplemental briefs after arguments were heard before this Court. The amount of publicity is indeed overwhelming and cause for review.

We also find the subsequent shooting of other police officers in the area, totaling three serious crimes in the community in one year, to be outstanding factors in the present case The publicity generated from these convictions on the eve of defendant’s trial is of relevance.

The fact that defendant’s sister was charged with buying the gun used in the murder and her sentence being publicized weeks before the defendant’s trial are also determinative of this Court’s ruling. The accounts of her conviction and sentence served as a cumulative effect upon the possible attitudes of the community toward the defendant’s innocence.

We also note that the state has not opposed a change of venue if it were in the interest of justice but has consistently requested that the trial begin expeditiously.

In summary, we determine the necessity for the change of venue to be predicated upon the following particular and unique facts of this case: the voluminous pre-trial publicity surrounding the defendant’s trial; the cumulative effects of publicity surrounding the trials of subsequent defendants involving the shooting of police officers and the trial of the defendant’s sister who was implicated in the present case which may have caused a connexity in the public’s mind on the innocence of defendant; and in the interest of judicial economy. We therefore find that under the particular facts of this case, the defendant has made a sufficient showing of a strong likelihood that prejudice may exist in the public mind. In the interest of judicial economy, we direct the district court to order a change of venue for defendant’s trial.

DECREE

IT IS THEREFORE ORDERED that the judgment of the district court be vacated and set aside and that the district court order a change of venue in this case.

      . Louisiana Constitution 1974, Article 1, Section 16:
      Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law. No person shall be compelled to give evidence against himself. An accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.


text:
    STATE of Louisiana v. George UPTON.
    No. 66216.
    Supreme Court of Louisiana.
    April 14, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Sonia D. Peters, Asst. Dist. Atty., for plaintiff-appellee.
    Jack D. Barnett, Shreveport, for defendant-appellant.
   PER CURIAM.

Defendant was charged by bill of information with the receiving of stolen goods valued in excess of five hundred ($500.00) dollars, a felony offense in violation of La. R.S. 14:69. On July 16, 1979, he entered a plea of guilty to the reduced charge of attempting to receive stolen goods, a misdemeanor offense under all circumstances. La.R.S. 14:27; 14:69. The trial court thereafter ordered a pre-sentence report. On September 18, 1979, it sentenced defendant to a year in the Parish Prison, the maximum term provided by the statute. The court suspended that sentence upon condition defendant spend six months in jail, and placed defendant on active probation for a period of three years. Defendant has appealed that sentence to this Court, urging that the trial judge erred in relying on prejudicial misinformation contained in the pre-sentence report, and erred further in denying him opportunity to offer evidence in rebuttal. We now vacate his sentence, although not on grounds urged by counsel, and remand for resentencing.

The defense alleges that immediately pri- or to sentencing, the trial court disclosed at least portions of the pre-sentence report. According to that report, defendant had failed to make good of his promise to help the authorities with their investigation of (unspecified) criminal activity in the parish. Counsel asked the court to continue the sentencing for purposes of presenting evidence that defendant had in fact fully cooperated with both federal and state agencies. He had in mind a particular parish deputy with whom, counsel alleged, defendant shared a special and confidential rapport. The Department of Probation and Parole, apparently, had failed to consult with this officer in preparing its report. “I would not like [defendant] to be sentenced,” counsel explained to the court, “on the basis of a report that is not only just merely incomplete, but lacks the critical information upon which the whole business of [defendant’s] entering a plea of guilty to this charge was based, and that is his complete cooperation with the law enforcement authorities from the very beginning of this investigation to the present time.”

Although sympathetic to the defense argument, the trial court refused to continue the sentencing. In the trial judge’s view, it “still [had] control over the time that [defendant] must spend in jail as a condition of probation and upon receipt of information which would tend to change the facts as set out in the pre-sentence investigation report, I will reduce further the time that [he] might be required to spend in jail.” Accordingly, the court proceeded to sentence defendant.

In challenging the ruling below, the defense relies on this Court’s decisions in State v. Bosworth 360 So.2d 173 (La.1978) and State v. Underwood, 353 So.2d 1013 (La.1978). As Bosworth cautions, 360 So.2d at 175, “[w]here in imposing a heavy sentence, the trial court relies upon pre-sen-tence information which is materially false or which furnishes invalid information, the defendant must be given an opportunity to deny or explain such substantially significant misinformation.”

Our review of the pleadings and proceedings in this case indicates, however, other defects in the sentencing below that will require remand of this case to the trial court. La.C.Cr.P. Art. 920(2). La.C.Cr.P. Art. 894 provides in pertinent part that “[w]hen a suspended sentence in excess of ninety days is imposed, the court may also place the defendant on [active] probation . for a period not in excess of two years [emphasis supplied].” To this extent, the trial court’s sentence of defendant to three years’ probation in this case is illegal. Moreover, while Art. 894 also provides for “such conditions [of probation] as the court may fix,” La.C.Cr.P. Art. 895 governing general conditions of probation for both misdemeanors and felonies specifically reserves the condition of time spent in jail (“not to exceed one year”) to “[f]elony cases.” La.C.Cr.P. Art. 895(B). To this extent also, the trial court’s sentence here is illegal.

We therefore vacate the sentence in this case and remand to the trial court for re-sentencing. La.C.Cr.P. Art. 882; State v. Wymore, 377 So.2d 283 (La.1980); State v. Delaney, 359 So.2d 976 (La.1978); State v. Jones, 341 So.2d 3 (La.1977). We note that remand here will allow the trial court to consider now the evidence the defense originally wished to present. As set forth above, the trial court indicated that it would entertain additional information on the specific question whether defendant had cooperated fully with the authorities after it had sentenced defendant to jail. We think it clear that the appropriate time for the trial judge to consider this information is before he renders sentence, as jail time itself may well hang in the balance.

SENTENCE VACATED AND REMANDED.

      . As we noted in State v. Hopkins, 367 So.2d 346 (La.1979), La.C.Cr.P. Art. 894 allows the trial court to suspend the imposition or execution of a misdemeanor sentence in whole or in part. For a one-year misdemeanor, the trial court may therefore sentence defendant to jail for six months and suspend the balance of the maximum term. The court may not, however, impose the maximum sentence of one year and then require, as a condition of extended probation, six months spent in jail. In that case, the accused may well spend (on probation revocation) more time in jail than the legislature has provided for the offense.


text:
    INSURANCE SERVICES OFFICE v. COMMISSIONER OF INSURANCE, State of Louisiana. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Sherman A. BERNARD, Commissioner of Insurance. ALLSTATE INSURANCE COMPANY v. Sherman A. BERNARD, Commissioner of Insurance, State of Louisiana.
    No. 66063.
    Supreme Court of Louisiana.
    Nov. 30, 1979.
   In re Sherman A. Bernard, Commissioner of Insurance, State of Louisiana, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 381 So.2d 515.

Denied. We cannot say that the Court of Appeal is in error.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    SUCCESSION of Sidney BROWN, Jr.
    No. 67211.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Effie J. Brown applying for writs of certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 379 So.2d 1172.

Writ granted.


author: DIXON, C. J., DENNIS, J.,

text:
    Mrs. Mabel SKINNER v. Roderick W. LACOMBE, and State of Louisiana through the Department of Transportation and Development (formerly the Department of Highways).
    No. 67121.
    Supreme Court of Louisiana.
    April 18, 1980.
   DIXON, C. J.,

agrees that the writ should be denied, for the reason that the “cause of action” or “cause” or the “juridical facts on which the demand is based” is the same in each suit — the collision. The new contention that the accident was caused by the overloaded truck is merely new evidence, and should not justify a new trial on the same accident. See 51 Tul.L.Rev. 611, 619-621, 635, 642.

DENNIS, J.,

concurs in denying the writ because the result is correct.

BLANCHE, J., recused.