text:
    J. G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-209.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 1981.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Alan Lipson, Asst. Atty. Gen., for appellee.
    Before BASKIN and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Booker v. State, 397 So.2d 910 (Fla.1981); Greer v. State, 354 So.2d 952 (Fla.3d DCA 1978); Fitzgerald v. State, 203 So.2d 511 (Fla.2d DCA 1967).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harold C. VANSCYOC, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1637.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 1981.
    Harold C. Yanscyoc, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Petitioner, Harold C. Yanscyoc, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial, in part, of his motion for post-conviction relief under Florida Rule of Criminal Procedure 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.


text:
    Jethro PITTS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1950.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 1981.
    Jethro Pitts, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

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


author: ORFINGER, Judge.

text:
    Marcus Ray DESIN, Appellant, v. STATE of Florida, Appellee.
    No. 80-627.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 1981.
    James B. Gibson, Public Defender, James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant was found guilty by the trial court of possession of burglary tools. He contends on appeal that possession of a bolt cutter for the admitted purpose of breaking into a newspaper vending machine which rests out in the open on a public sidewalk cannot violate the subject statute because the act would neither constitute a burglary nor a trespass under Chapter 810, Florida Statutes (1979). Appellant was unsuccessful in asserting this position in the trial court. We affirm.

We agree with appellant that the act of breaking into a vending machine which sits out in the open on a public sidewalk does not constitute “burglary” as defined by statute. Section 810.02, Florida Statutes (1979), defines burglary as:

Entering or remaining in a structure or 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, (emphasis added).

The vending machine here is neither a “structure” nor a “conveyance.”

Appellant contends that since there was no proof of intent to commit a burglary, and no proof of intent to commit a trespass proscribed by the other portions of Chapter 810, no crime has been proved. The State contends that the phrase “any burglary or trespass” found in section 810.02 encompasses any trespass, not just those trespasses proscribed by chapter 810.

Looking at the plain language of the statute, there is nothing in it to indicate that the legislature intended to limit the meaning of the word “trespass” only to those trespasses proscribed in Chapter 810, because had it meant that it could have easily said just that, and would not have used the phrase “any .. . trespass.” Trespass has had a well defined common-law meaning, viz: an unlawful interference with one’s person, property or rights. Black’s Law Dictionary, 1347 (5th ed. 1979). As applied to personal property, trespass has been defined as the unlawful interference, however slight, with another’s enjoyment of his personal property. 32 Fla.Jur. Trespass, § 4 (1960). Therefore, we conclude that the obvious intent of the legislature was to include any trespass, statutory or common-law, within the ambit of section 810.06.

This conclusion is not reached without great difficulty, however, because this interpretation makes possession of the tool with which to commit a crime a felony under some circumstances where the actual commission of the crime is a misdemeanor. For example, even were we to follow appellant’s reasoning that only the trespasses in chapter 810 are covered by the burglary tool section, trespass over posted land (section 810.09), with certain exceptions, is a misdemeanor of the first degree. Section 810.12 makes the unauthorized entry into posted land with a machine, tool, motor vehicle or draft animal prima facie evidence of intent to trespass. If such trespass is committed with a jeep, does the jeep become a “burglary tool” as defined by section 810.06 because it is a machine used to commit a trespass? The same problem arises with respect to any of the statutory trespass statutes, whether included in chapter 810 or in other statutory provisions. Because of the questions raised by this interpretation, and because we find it to be of great public importance, we certify to the Supreme Court, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), the following question:

Does section 810.06, Florida Statutes (1979), encompass: (a) only those trespasses included within said chapter 810; or (b) any statutory trespass; or (c) any statutory or common-law trespass, when it proscribes the possession of any tool, machine or implement with intent to use or permit such to be used to commit “any burglary or trespass.”

Judgment AFFIRMED. Question CERTIFIED.

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

      . § 810.06, Fla.Stat. (1979):
      Whoever has in his possession any tool, machine or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree.

        . § 810.011. As used in this chapter:
      (1) “Structure” means any building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereon.
      (2) “Conveyance” means any motor vehicle, ship, vessel, railroad car, trailer, aircraft or sleeping car.

      . Other examples making certain acts “trespass” can readily be found in the statutes. We point out that no challenge has been made to the constitutionality of section 810.06, and so that question is not considered.


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

text:
    TELEPHONE UTILITY TERMINAL COMPANY, INC., a Florida Corporation, F. Lee Hinebaugh and Robert S. Larsen, Appellants, v. EMC INDUSTRIES, INC., a Delaware Corporation, Appellee.
    No. 80-906.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 1981.
    David E. Terry of Baker & Hostetler, Orlando, for appellants.
    Del G. Potter of Del G. Potter, P.A., Mount Dora, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants, defendants below, appeal from a summary final judgment. Counts I-IX of the complaint sought recovery on nine promissory notes from Telephone Utilities Terminal Company (TUTCO) as maker and Larsen and Hinebaugh as guarantors. Counts X-XV covered loans to TUTCO not evidenced by promissory notes, each count representing a loan made on a different day. Count XVI sought recovery from all defendants for the monies loaned to TUT-CO delineated by counts X-XV on the basis that the defendants breached their agreement to execute notes and guaranties concerning these monies. EMC dismissed without prejudice appellants Larsen and Hinebaugh as to counts X-XVI.

EMC moved for summary judgment concerning the notes and guaranties and served this motion only to the attorney for defendants Hinebaugh and Larsen. The trial court granted judgment against defendants on all of the counts.

The first question presented was whether summary judgment as to counts I-IX was error where EMC failed to produce the original notes or account for their absence.

In the case of a negotiable promissory note, any holder in due course is entitled to payment thereunder even though the payor may claim he has discharged his obligation to someone else. § 673.305, Fla.Stat. (Supp. 1980); International Center of the Americas v. Chemical Bank, 384 So.2d 725 (Fla.3d DCA 1980). Thus, “production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” § 673.307(2), Fla.Stat. (Supp.1980).

In Ferris v. Nichols, 245 So.2d 660, 662 (Fla. 4th DCA 1971), the fourth district stated that;

Except in the unusual case where the suit is on a lost or destroyed note, the instrument sued on should be produced in order to entitle the holder to recovery.

Requiring production of the instrument protects the payor from being later liable to a holder in due course where the original payee fraudulently obtained payment in an action using a copy of the note.

EMC cites Coquina Ridge Properties v. East West Company, 255 So.2d 279 (Fla. 4th DCA 1971) as authority for its position that the original copy of the note is not necessary. An examination of the case reflects that the court stated simply that unless the issue is raised in the trial court, it cannot be raised on appeal. The question of how a plaintiff can prove he is a holder in due course without the original note was not addressed. We hold that it was error for the trial court to enter judgment on counts I-IX without production of the original notes.

The next question raised is whether summary judgment as to counts X-XVI was proper as to TUTCO. TUTCO was not served with the motion for summary judgment or notice of hearing. The record reflects that the motion was sent only to the attorney for defendants Larsen and Hine-baugh; and fails to show that the motion was sent to defendant TUTCO. This means that the plaintiff did not meet the requirements of Florida Rule of Civil Procedure 1.510(c).

EMC contends that Larsen and Hinebaugh were officers of the defendant corporation and that their attorney had been served with a copy of the motion. The record reveals, however, that the attorney had appeared for defendants Larsen and Hinebaugh in their individual capacity only. Knowledge acquired by corporate officers while acting for themselves and not for the capacity of the corporation cannot be imputed. C & H Contractors, Inc. v. McKee, 177 So.2d 851 (Fla.2d DCA 1965). Without service of the motion on TUTCO, the trial court could not render summary judgment against it.

Appellants question whether the court erred in allowing EMC to recover on the notes and guaranties when the notes did not show that documentary stamps had been paid.

The copies of the notes attached to the complaint did not show the documentary stamps. Appellants first raised the question of the stamps after entry of summary judgment by filing a motion to dismiss and a motion for rehearing. At the hearing on the motion, the point was not argued and no ruling directed to this point is part of the record. Appellants cannot raise the point for the first time on appeal. See Jones v. Neibergall, 47 So.2d 605 (Fla.1950). However, because this matter is being reversed on other grounds, appellants may raise the point by appropriate pleadings in the trial court.

REVERSED and REMANDED to the trial court for proceedings consistent with this opinion.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . If a payor pays on a copy of a note pursuant to a judgment and later a holder in due course presents the original note, the payor could not claim satisfaction. § 673.305. See also Liles v. Myers, 38 N.C.App. 525, 248 S.E.2d 385 (1978).


author: SHARP, Judge.

text:
    STATE of Florida, Appellant, v. Jimmy STEWART, Appellee.
    No. 80-1278.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellant.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellee.
   SHARP, Judge.

The State appeals from the dismissal of an information which charged Stewart with second degree murder in connection with the stabbing death of his girlfriend. Stewart was the only other person present at the time of the stabbing, and in his sworn (c)(4) motion, he claimed the injury to the decedent was accidental, inflicted either by himself or by the decedent to herself, while they were struggling over a knife in bed. Although the State demurred to the (c)(4) motion, thereby admitting the facts alleged therein, the State argues that other factors present in the (c)(4) motion and in the record are sufficient to counter Stewart’s version that the stabbing was accidental. We agree and reverse.

As this court has repeatedly held in the context of a (c)(4) motion, this procedure is no substitute for a trial, and if any facts or inferences therefrom establish a prima facie case against the defendant, it should not be granted. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981); State v. Cramer, 383 So.2d 254 (Fla. 2d DCA 1980). The trial court assumed the defendant’s version of the victim’s death as “accidental” must be accepted as true, and therefore second degree murder could not be proven. However, it is not infrequent that the defendant and the murder victim are the only people present at a crime scene. The state is certainly not precluded from trying to prove second or even first degree murder, based on the circumstances of the death. The general standard is that where the evidence is circumstantial, a conviction cannot stand unless the evidence is inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972 (Fla. 1977). However, if the circumstances show the defendant’s version is false, the defendant’s version may be rejected. See McArthur v. State; Mayo v. State, 71 So.2d 899 (Fla. 1954); Holton v. State, 87 Fla. 65, 99 So. 244 (1924).

Here the victim met her death as the result of a clean and forceful thrust of a knife, some four inches deep, through her heart. The type of wound and the direction of the blow are sufficient alone to cast considerable doubt on the defendant’s stories concerning an accidental cutting. Wrestling over the knife with such force that such a wound resulted was an act clearly imminently dangerous to the victim, and it also demonstrated Stewart’s lack of regard for human life. In this case this is particularly true because the record established facts indicating the victim was in a state of immobility and physical helplessness at the time of her stabbing. Her blood test showed she was highly intoxicated and when found dying by her mother, the victim’s lower garments were around her knees. There was no blood on the floor or furniture and only a small quantity on the bedsheets. These circumstances strongly suggest the decedent was lying immobile in bed when she was stabbed, and she never moved again.

REVERSED.

DAUKSCH, C. J., and COBB, J., concur.

      . Fla.R.Crim.P. 3.190(c)(4).

      . Fla.R.Crim.P. 3.190(d).

      . Fla.R.Crlm.P. 3.190(c)(4).


author: MOORE, Judge.

text:
    DIVISION OF ADMINISTRATION, STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, Appellant, v. LAKE OF THE WOODS, INC., Alexander D. Iannacone, et al., Appellees.
    No. 79-2002.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 1981.

      Margaret-Ray Kemper, Appellate Atty., L. Fred Reedy, Trial Atty., and H. Reynolds Sampson, Gen. Counsel, State of Fla. Dept, of Transp., Tallahassee, for appellant.
    Robert C. Byrne of Brigham, Reynolds, Byrne & Moore, P.A., Miami, for appellee, Alexander D. Iannacone.
   MOORE, Judge.

This is an appeal by the Florida Department of Transportation from an award of damages for the loss of business which resulted from the State’s condemnation of land on which the appellee operated a restaurant. We reverse.

The condemnation occurred in 1977 and was necessitated by the widening and improvement of a portion of State Road 84 lying in the western portion of Broward County. For the purposes of this appeal we need only trace the history of this land from 1971. At that time, it was the site of a restaurant operated by one of appellee’s predecessors. In 1973, the restaurant was sold to a party who later defaulted on the purchase agreement and the initial owner instituted repossession proceedings. In October, 1974, the original owner obtained possession of the restaurant and proceeded to refurbish its interior. During this period the restaurant was closed and no business was conducted. On December 31, 1974, ap-pellee entered into an agreement to purchase the equipment in the restaurant and to assume the renewable lease on the property. Appellee thereafter operated the restaurant from February, 1975 until September, 1977, when the condemnation occurred.

As a result of the condemnation, appellee was awarded business damages pursuant to Section 73.071, Florida Statutes (1977). Appellant contends that such award was erroneous on two grounds. First, the Department of Transportation maintains that the restaurant did not qualify as an “established business” under the aforementioned statute. Second, it is asserted that the trial court erred in allowing the jury to determine appellee’s entitlement to damages rather than making such determination itself. Because we find the former claim dispositive we need not reach the latter.

The crucial issue to this appeal is whether appellee’s restaurant was an “established business of more than five years’ standing” at the time of condemnation. Section 73.-071(3)(b), Florida Statutes (1977); only then can appellee be entitled to business damages.

Factually, this case is nearly identical to Hodges v. Division of Administration, 323 So.2d 275 (Fla.2nd DCA 1975). In that case a motel and marina, including a bar and grill, was in operation from 1956 to 1971 at which time it went out of business. The property had been vacant for five months when it was purchased by the Hodges who once again established the property as a motel and marina. Much of the inventory which was used by the motel’s prior operators was also used by the Hodges. It was necessary, however, for the Hodges to acquire a new liquor license and some other equipment in order to begin operation. Less than five years after the Hodges reopened, the property was condemned. There, as here, the issue was whether the enterprise was an established business of five years standing prior to the condemnation. The Second District Court of Appeal held that it was not, stating:

In this case we believe the Hodges’ acquired only a business place and not an established business as contemplated by the statute. “Business, . . . does not, generally speaking, mean property. It means the activity, the energy, the capacity, the opportunities by which results are reached — a condition rather than fixed tangible objects from which conditions arise.” Atlanta Realty Company v. Sloan, 1955, 91 Ga.App. 370, 85 S.E.2d 635. On the other hand, a place of business is simply a location where business is transacted. McCall v. State ex rel. Daniels, 1945, 156 Fla. 437, 23 So.2d 492. When the Hodges’ acquired the property there was no going concern. They purchased only the property and paid nothing for good will. Hodges, supra, at 277.

We find this analysis highly persuasive and directly applicable to the present dispute. When appellee took possession of the restaurant it had been closed for approximately two and one-half months. Appellee did not open his restaurant until one and one-half months after that. He changed the name of the establishment and had it remodeled. Additionally, it was necessary for appellee, as the Hodges, to acquire a new license to sell alcoholic beverages. It is also significant that appellee assumed no obligations of the predecessor restaurants, nor did he purchase any accounts receivable.

We conclude from these facts that appel-lee clearly did not purchase an “established business”. Rather, he simply embarked upon a new commercial venture which happened to be situated where prior ventures of a like nature had been situated. Such is a common happenstance in the world of business. Appellee acquired only a structure in which to conduct business and not an on-going concern which is the type of progression contemplated by the statute. Consequently, appellee’s restaurant, which operated from 1975 until the condemnation in 1977, was not “an established business of more than five years’ standing”.

We hold that appellee was not entitled to any business damages and the judgment below is reversed.

BERANEK, J., and KAPNER, LEWIS, Associate Judge, concur.


text:
    Coleman R. ROSENFIELD and Telsa Rosenfield, his wife, Appellants, v. Gladys L. ROSENFIELD, Appellee.
    No. 80-782.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 1981.
    L. J. Cushman and Hilton R. Carr, Jr., of Law Offices of Hilton R. Carr, Jr., Miami, for appellants.
    Lawrence J. Meyer of Meyer, Leben, Fix-el & Cantor, P.A., Hollywood, for appellee.
   PER CURIAM.

This is an appeal from a non-final order in a partition action pursuant to Florida Rule of Appellate Procedure 9.130(a)(4). The appellants challenge an order, entered after a judgment of partition and an order approving the sale, which required “satisfaction of liens and judgments” from the proceeds of the sale.

On appellants’ request, we relinquished jurisdiction to the trial court to reconsider the appealed order. Relying on the trial court’s order granting reconsideration, we affirm.

The sole issue remaining for our consideration is whether the trial court properly required satisfaction from the proceeds of the partition sale of a Federal Internal Revenue Service lien. We find that the trial court had the authority to order such satisfaction. See Burney v. Dedge, 56 So.2d 715 (Fla.1952). Furthermore, appellants’ contention that the Federal tax lien did not attach to an estate by the entireties is erroneous. The lien attached before the entireties estate was created. The lien was recorded in July 1975 and the entireties estate was not created until May 1976.

AFFIRMED.

ANSTEAD, MOORE and GLICKSTEIN, JJ., concur.


author: LETTS, Chief Judge.

text:
    STATE of Florida, Appellant, v. Ronald KADERBAK, David Moyal, Thomas Dull, Robert Bailey, Marcus Bailey and Charles Izenstark, Appellees.
    No. 80-1072.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 1981.
    Jim Smith, Atty. Gen., Tallahassee, Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    William S. Isenberg of Law Offices of Harlan Street, P.A., North Miami, for ap-pellees.
   LETTS, Chief Judge.

This cause is reversed upon the authority of our revised opinion in Rizzo v. State ex rel. City of Pompano Beach, 396 So.2d 869 (Fla. 4th DCA 1981).

We recognize the perfunctory nature of this reversal, but believe the applicable issues are all adequately discussed in the Rizzo opinion. Accordingly, while we recognize that a complete discussion of the particular facts would be of interest to the individual parties, we are compelled by time constraints to refrain from writing protracted opinions when we are convinced they will add nothing to the body of the law.

REVERSED AND REMANDED.

MOORE and GLICKSTEIN, JJ., concur.

      . We note no petition for certiorari has been filed in the supreme court.


text:
    Richard ZAINO, Appellant, v. STATE of Florida, Appellee.
    No. 80-1662.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 1981.
    Douglas N. Duncan of Foley & Colton, P.A., West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See, State v. Benitez, 395 So.2d 514 (Fla. 1981).

ANSTEAD, MOORE and BERANEK, JJ., concur.


author: PER CURIAM. LETTS, Chief Judge,

text:
    CAUSEWAY LUMBER COMPANY, INC., Appellant, v. ASSOCIATED FLORIDA CONTRACTORS, INC., et al., Appellees.
    No. 80-2178.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 1981.
    Robert H. Anderson, II, of Coleman, Leonard & Morrison, Fort Lauderdale, for appellant.
    No appearance for appellees.
   PER CURIAM.

In the final judgment being appealed, the trial court denied the award of late charges against the corporate appellee (which did not appear) and the award of attorneys’ fees against both appellees. It appears that the reason for these denials may have been for the lengthy delays in the prosecution of this action. We can find no other basis for the denials in the record.

In our opinion all of the delays should not be attributed to appellant’s counsel. Accordingly, we reverse that portion of the final judgment denying the awards of late charges and attorneys’ fees, affirm the balance of the final judgment and remand to the trial court for the award of late charges and attorneys’ fees.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

GLICKSTEIN and HURLEY, JJ., concur.

LETTS, C. J., dissents in part with opinion.

LETTS, Chief Judge,

dissenting in part:

I dissent.

Resort to the record reveals that the protracted delay in obtaining a final judgment in this case was principally attributable to the inattention of counsel. Indeed the trial judge had to write a letter demanding action. This inattentiveness we now reward with interest and late charges! I must protest this aspect of the majority opinion.


text:
    Michael T. LANG, Appellant, v. Patricia Ann LANG, Appellee.
    No. 81-887.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 1981.

      Mark R. Boyd of Walsh, Theissen & Boyd, Fort Lauderdale, for appellant.
    No appearance on behalf of appellee.
   PER CURIAM.

We affirm that portion of the trial court’s order which found appellant/former-husband in contempt for failing to pay $3,321.00 in child support. Calculation of the amount due is a factual determination which, in this case, is supported by the record. Furthermore, appellant has failed to demonstrate an abuse of discretion by the trial court in its refusal to consider a post-hearing tender of cancelled checks. The burden of establishing newly discovered evidence is extremely high, and we concur with the trial court’s implied finding that appellant failed to satisfy this burden. See Dade National Bank of Miami v. Kay, 131 So.2d 24 (Fla.3d DCA), cert. denied, 135 So.2d 746 (Fla.1961).

However, relying upon Strauser v. Strauser, 303 So.2d 663 (Fla. 4th DCA 1974), we reverse that portion of the trial court’s order which states that if appellant fails to comply with the repayment schedule, “an Order of Commitment for the arrest of . . . [appellant] will issue without further notice or hearing.”

Accordingly, the order is affirmed in part and reversed in part and the cause is remanded with instructions to strike the automatic commitment provision from the order.

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


text:
    John A. HALEY, Appellant, v. STATE of Florida, Appellee.
    No. 81-482.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1981.
    Jerry Hill, Public Defender and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, defendant below, appeals from the trial court’s order adjudicating him guilty of burglary of a structure and sentencing him to two years in the state prison to be followed by three years probation.

The defendant argues that his sentence is illegal under Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981) and also asserts that he was not given credit on the sentencing order for one day of time served contrary to section 921.-161(1), Florida Statutes (1979). We agree.

The sentence is illegal under Villery. Although the judge did recommend that the defendant be treated under chapter 917, Florida Statutes, in a minimum security facility for the two years he was sentenced to imprisonment, the defendant would not be eligible for treatment under chapter 917 as he was not convicted of a sexual offense. As a result, the defendant is sentenced to imprisonment for two years to be followed by three years probation, a sentence patently illegal under Villery.

Accordingly, the defendant’s illegal sentence is stricken and the case is remanded to the trial court so that the defendant may be resentenced in accordance with this court’s opinion in Lewis v. State, 402 So.2d 482, (Fla.2d DCA, 1981).

The defendant also must be given credit for time served on the sentencing order as required by section 921.161(1). The trial court is directed to give credit for time served on the order when the judge resen-tences the defendant to rectify the Villery problem.

The conviction is affirmed but the sentence is stricken and the cause is remanded for resentencing.

REMANDED.

SCHEB, C. J., and DANAHY and CAMPBELL, JJ., concur.


text:
    BAKE LINES TRUCKING, INC. and Maryland Casualty Company, Appellants, v. Nick CHESTER, Appellee.
    No. VV-280.
    District Court of Appeal of Florida, First District.
    Oct. 1, 1981.

      Harry D. Robinson, West Palm Beach, for appellants.
    R. Scott Boundy of High, Stack, Lazenby, Bender, Palahach & Lacasa, Miami, for ap-pellee.
   PER CURIAM.

The employer/carrier raise three points for review in this appeal from a workers’ compensation order. We find merit with two points, and accordingly reverse.

The claimant was injured when a truck he was driving for the employer crashed through a road barricade. This case was originally heard on June 6, 1977. The then Judge of Industrial Claims (JIC) found that claimant had reached MMI from his injuries on December 3, 1976, with no permanent disability as a result of the accident; and that claimant suffered from a pre-existing heart condition which was not aggravated by the accident and was not disabling. On appeal, the IRC reversed, finding that there was no competent substantial evidence to support the JIC’s finding that claimant’s heart condition was not aggravated by the accident. The Florida Supreme Court denied certiorari. On remand, the deputy commissioner took further testimony and entered the order from which this appeal is taken.

The deputy commissioner’s finding that the claimant reached MMI from his injuries on June 6, 1977 (the date of the original hearing), is not supported by competent, substantial evidence in the record. The deputy commissioner apparently based this finding on the claimant’s testimony at the final hearing that his condition had been more or less under control since the June, 1977 hearing. Lay testimony, especially that of the claimant, may be considered in determining the date of MMi. Modufab Corp. v. Callaway, 284 So.2d 684 (Fla. 1973). However, in a complex medical situation, as here, where there is no medical opinion ruling out continued improvement, a claimant’s testimony cannot replace a treating physician’s expert opinion as to when temporary disability ends and permanent disability commences. Sunland Training Center v. Hicks, IRC Order 2-3443 (1978).

In the present case, only one physician, Dr. Shapiro, was deposed for both the original hearing and the final hearing. Dr. Shapiro’s deposition testimony clearly indicates that the claimant had not reached MMI as of June 6, 1977, but had continued to improve up to the date of Dr. Shapiro’s final deposition, i. e., March 24, 1980. Dr. Fox was the only other physician to testify regarding the claimant’s heart condition. At the time of the original hearing, he gave no indication that claimant’s condition would not continue to ameliorate. Thus, there was no medical opinion ruling out continued improvement in claimant’s condition; and, to the contrary, there was expert medical testimony indicating that claimant had in fact improved. The deputy commissioner, therefore, erred in fixing the date of MMI at June 6, 1977.

We also find error in the deputy commissioner’s award of rehabilitative TTD benefits to the claimant. No claim for such benefits had been made prior to the hearing, and the Division of Labor was not given an opportunity to evaluate claimant prior to an award being made. Section 440.15(2)(b), Florida Statutes (1975), specifically provides for rehabilitative TTD benefits. However, the deputy commissioner is prohibited from assuming jurisdiction over a rehabilitation program until the Division of Labor has had an opportunity to evaluate the injured worker and advise all parties as to any rehabilitation program to be funded out of the Workers’ Compensation Administration Fund. Keith v. City of Altamonte Springs, 344 So.2d 555 (Fla.1975). In addition, the employer/carrier had no opportunity to prepare and present a concerted defense to a claim for rehabilitative TTD benefits, since no claim was made for such benefits. Attkisson-Bankston, Inc. v. Davignon, IRC Order 2-2722 (1975).

Accordingly, the order is reversed as to the award of the rehabilitative TTD benefits and the date of MMI, and the cause is remanded with directions for the deputy commissioner to set a date of MMI which is consistent with the expert medical testimony.

SHIVERS, SHAW and THOMPSON, JJ., concur.

      . Chester v. Bake Lines Trucking, Inc., IRC Order 2-3625 (1978).

      . 377 So.2d 167 (Fla.1979).


text:
    B.R.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. YY-178.
    District Court of Appeal of Florida, First District.
    Oct. 1, 1981.
    Rehearing Denied Oct. 22, 1981.
    Michael E. Allen, Public Defender, Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

B.R.S. appeals an adjudication of delinquency for loitering and prowling, contrary to Section 856.021 (1979), Florida Statutes. We agree with the appellant that the trial court erred in denying his timely motion for judgment of acquittal. Because we conclude that the state’s evidence was insufficient, we will not rule on the appellant’s alternate contention that the deputy sheriff did not have a “founded suspicion” to justify appellant’s initial detention.

The state’s case in chief was based entirely on the testimony of a deputy sheriff who had stopped the appellant about 2:45 a. m., coming out of an alleyway. The trial court refused to allow defense counsel to ask the deputy whether he had read the appellant his Miranda rights before requiring him to explain his presence in the area where he was apprehended. Without the Miranda predicate, the deputy’s crucial testimony concerning the appellant’s inconsistent explanations should have been excluded. See State v. Ecker, 311 So.2d 104, 110 (Fla. 1975). And once those explanations are excluded, there being no other competent, substantial evidence supporting the appellant’s guilt, the court’s adjudication of delinquency must be

REVERSED.

MILLS, ERVIN and LARRY G. SMITH, JJ., concur.


text:
    John Herman BAUM, Appellant, v. STATE of Florida, Appellee.
    No. YY-446.
    District Court of Appeal of Florida, First District.
    Oct. 1, 1981.
    Rehearing Denied Oct. 16, 1981.
    Michael E. Allen, Public Defender and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

An appeal from a judgment of conviction for possession of illegal narcotics, entered after appellant had entered a plea of nolo, conditioned upon his right to appeal the denial of his motion to suppress which alleged that the affidavit attached to the search warrant failed to describe with particularity the place to be searched.

Although the description in the affidavit of the premises to be searched was color-ably ambiguous, the premises (apartment number eight in a certain apartment building) were nevertheless sufficiently described in the search warrant. Additionally, the search warrant did not incorporate the description in the affidavit by reference. It has been held that it is the description in a search warrant, not the language in the affidavit, which determines the place to be searched. Booze v. State, 291 So.2d 262 (Fla.2d DCA 1974); United States v. Kaye, 432 F.2d 647. (D.C. Cir. 1970).

Following the advice of the United States Supreme Court in United States v. Ventresea, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), that courts should not apply hypertechnical constructions to warrants, but should rather construe them in a common sense fashion, we agree that the allegations in both the affidavit and the search warrant support the trial court’s implicit finding that the informer purchased the drugs only in apartment number eight. See also State v. Heape, 369 So.2d 386 (Fla.2d DCA 1979), and State v. Houser, 364 So.2d 823 (Fla.2d DCA 1978).

AFFIRMED.

ERVIN, SHAW and THOMPSON, JJ., concur.


author: SHAW, Judge.

text:
    Mercedes DUVALLON, Petitioner, v. STATE of Florida, Respondent.
    No. ZZ-303.
    District Court of Appeal of Florida, First District.
    Oct. 1, 1981.
    Mercedes Duvallon, in pro. per.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for respondent.
   SHAW, Judge.

The petitioner, in protesting what she considered judicial and police corruption, picketed in front of the Capitol and across the street from the Supreme Court building “dressed” in a 44.5" X 28" piece of cardboard suspended by a cord around her neck. She was arrested by two Tallahassee police officers and charged with exposure of sexual organs. Her subsequent conviction in the Leon County Court was affirmed by the Circuit Court without opinion. She now petitions this court for a writ of common law certiorari. We have jurisdiction. Article V, section 4(b)(3), Florida Constitution (1972); Rule 9.030(b)(2)(B), Fla.R.App.P.

At common law, indecent exposure was a public nuisance and punishable as a misdemeanor. It was viewed as an offense against religion and morality, involving “open and grossly scandalous lewdness.” Rex v. Sedley, [1663] 1 Sid. 168, is often cited by commentators as support for this view. Today, the common law crime has been supplanted by statutory offenses in almost every jurisdiction in this country. These statutes vary somewhat as to wording, but a survey of the case law indicates that many of the same elements of the common law crime have been retained.

Section 800.03, Florida Statutes (1971) represents Florida’s effort at supplanting the common law offense. The statute has changed very little since its inception, but the interpretation placed upon it has been subject to continual revision, due to the change in public attitude. The supreme court in State ex rel. Swanboro v. Mayo, 155 Fla. 330, 19 So.2d 883, at 884, (1944), points out that “(a)n act which might have been considered by the general public a few years ago as an indecent exposure of the person and lewd and lascivious in its character might today be not frowned upon, nor condemned by upright, honorable and virtuous people.” This change of attitude is illustrated by the fact that until recent times the waltz and the two-step were considered by a great many worthy and high-minded people as lewd and lascivious devices calculated to promote the works of the devil.

The gravamen of the Florida statute is to make it unlawful for any person to expose or exhibit his sexual organs in a vulgar or indecent manner in any public place or private premises of another, so as to be seen. In addition, the statute makes it an offense to go or be naked in such place. The Florida Supreme Court has recognized that the term “vulgar or indecent manner” must be construed as necessarily relating to a lascivious exhibition of those private parts of a person which common propriety requires to be customarily kept covered in the presence of others. Lascivious means that the exposure or exhibition must be “lewd” involving “an unlawful indulgence in lust, eager for sexual indulgence.” Chesebrough v. State, 255 So.2d 675, at 677, 678 (Fla.1971). This is in accord with the general rule that statutes dealing with crimes of moral turpitude generally require proof of intent as an essential element. Florida signals its intent that there be intentional conduct by use of the term “in a vulgar or indecent manner.”

The trial court determined that the petitioner was “for all intents and purposes naked and the very act of being naked for the purpose of demonstrating or protesting in such a public location where all ages might see her is vulgar and indecent.” Respondent directs our attention to the statutory phrase “or to go or be naked in such place” and urges that we affirm the conviction in light of this finding. In other words, the respondent equates the petitioner’s unconventional attire with nakedness and argues that we accept the trial court’s conclusion that to picket while so arrayed is, without more, vulgar or indecent. We disagree. In Hoffman v. Carson, 250 So.2d 891 at 893 (Fla.1971), the Supreme Court, in defining “vulgar or indecent manner,” makes the following observation:

Because of the nature of the statute, the terms in question must be construed as necessarily relating to a lascivious exhibition of those private parts of a person which common propriety requires to be customarily kept covered in the presence of others. This construction necessarily applies also to the language, ‘or so to expose or exhibit his person in such place, or to go or be naked in such place.’

We take this language to mean that in order for nudity to be prosecutable under section 800.03, Florida Statutes, there must be a lewd or lascivious exhibition or exposure of the sexual organs.

We find no evidence in the present record that the petitioner exposed or exhibited her sexual organs in such a manner. The arresting officer testified that the placard allowed exposure of her bare backside and the sides of her breasts, but he saw nothing lewd or lascivious about her conduct.

The petitioner’s behavior was, at a minimum, bizarre, but it falls short of being a vulgar and indecent exposure of her sexual organs. We, therefore, quash the order of conviction as a departure from the essential requirements of law.

Certiorari granted.

WENTWORTH and THOMPSON, JJ., concur.

      . 3 Wharton’s Criminal Law § 317 (Torcía, C., 14th ed. 1980).

      . Annot., Criminal offense predicated upon indecent exposure, 94 A.L.R.2d 1353 § 10 (1964).

      . 800.03 EXPOSURE OF SEXUAL ORGANS—
      It shall be unlawful for any person to expose or exhibit his sexual organs in any public place or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or so to expose or exhibit his person in such place, or to go or be naked in such place. Provided, however, this section shall not be construed to prohibit the exposure of such organs or the person in any place provided or set apart for that purpose. Any person convicted of a violation hereof shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.


author: WENTWORTH, Judge.

text:
    Hattie HOLMES, Appellant, v. ALACHUA COUNTY ADULT CORRECTIONAL INSTITUTE and Professional Administrators, Appellees.
    No. TT-62.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1981.
    Thomas W. Davis, of Barton & Cox, Gainesville, for appellant.
    Dennis R. Long, Gainesville, for appel-lees.
   WENTWORTH, Judge.

By this appeal from a workers’ compensation order claimant asserts error in the deputy’s determinations as to underpayment of temporary disability compensation, amount of average weekly wage, date of maximum medical improvement, and denial of an attorney’s fee. We affirm.

The critical issues between the parties are concerned with alleged untimeliness of appellee’s payment of permanent disability compensation on June 18, 1979. The disputed wage issue was then conceded and permanent disability compensation paid, within 21 days after a medical report of May 31, 1979. That report noted that the date of maximum medical improvement was September 20, 1978, and fixed a 10% impairment rating at the time of the report. The record does not reflect earlier availability of any other basis for final medical assessment of permanency after maximum medical improvement, and the March 1979 claim for such benefits did not supply the deficiency. In those circumstances the fact that wage computation was disputed, and permanent disability compensation was delayed after the point ultimately established for maximum medical improvement, does not require the award of fees. The deputy could properly conclude that delayed payment of benefits was not attributable to that dispute or other employer/earrier fault.

Although temporary disability benefits had been paid at an incorrect rate from April 16, 1978, until October 28, 1978, the amount of the accrued deficiency on September 20, 1978, appears to have been amply corrected by the continued payment of temporary disability compensation for the following weeks until October 28, for which period compensation of that class would not, according to this record, be due. No issue is presented as to computation of permanent benefits paid retroactively according to stipulation of the parties, and the record does not support appellant’s contention that there was resistance or delinquency in payment of medical bills so as to require award of an attorney’s fee.

The order appealed is affirmed.

ROBERT P. SMITH, C. J., and MILLS, J., concur.


text:
    STATE of Florida, Appellant, v. Erling Knud Ove HANSEN, Jr., Appellee.
    No. WW-366.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1981.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., for appellant.

      Michael J. Minerva, Public Defender, Lynn A. Thompson, Asst. Public Defender and Baya Harrison, III of Fuller, Johnson & Harrison, Tallahassee, for appellee.
   WENTWORTH, Judge.

The state appeals the dismissal of one count in an indictment that had charged Hansen with a capital-felony violation of section 794.011(2), Florida Statutes. The judge determined the foregoing statute was ambiguous when compared with section 794.011(3), and he resolved this perceived ambiguity in favor of the defendant by dismissing the count. We find no fatal ambiguity in these subsections, so we reverse.

The pertinent parts of section 794.011 provide:

(2) A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony....
* 5(5 * * * *
(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....

On the day of the alleged sexual battery, the victim was approximately 11 years and 3 months old. She was within the plain language of section (2) of the statute addressing victims “11 years of age or younger.” Section 794.011(3), addressing victims “over the age of 11 years,” unequivocally protects victims who are not within the first defined class because they have reached 12 years of age. Any other construction of the latter language, to extend it to persons throughout the year during which they are 11 years old and not yet 12 years old, would entirely nullify the words in section (2) extending its penalty to offenses against “a person 11 years of age,” since one who enters that class by reaching 11 years of age would simultaneously pass the eleventh birthday. The legislature could achieve that intent only by limiting section (2) to persons under 11 years of age, which of course is contrary to the statute as written. We are unwilling either to so emasculate the terms employed or to find the law fatally ambiguous when the two sections, read together, clearly describe the line of demarcation and eliminate any ambiguity which might exist if section (3) stood alone.

The case, in our opinion, presents an instance where, in the choice of maxims of statutory construction, the plain meaning rule makes unnecessary the application of strict construction principles which would govern an ambiguity not resolved by the language itself in context. See Annotation, 73 A.L.R.2d 874 (1960). We recognize, however, that our conclusion is in direct conflict with that reach by the District Court of Appeal, Fourth District. State v. Carroll, 378 So.2d 4 (Fla. 4th DCA 1980); Wright v. State, 390 So.2d 118 (Fla. 4th DCA 1980). See also Buford v. State, 403 So.2d 943, (Fla. 1981), which invalidates the imposition of a sentence of death under the statute here in question.

Accordingly, this cause is reversed and remanded to the trial court for proceedings not inconsistent with this opinion.

MILLS, J., and VIRGINIA Q. BEVERLY, Associate Judge, concur.


author: BOARDMAN, Judge.

text:
    Ana S. ALVAREZ, Appellant, v. Oscar F. ALVAREZ, Appellee.
    No. 81-8.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.

      Ralph M. Güito, Jr., Tampa, for appellant.
    Ted R. Manry, III, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   BOARDMAN, Judge.

Ana S. Alvarez (the wife) appeals portions of the final judgment of dissolution of her marriage to Oscar F. Alvarez (the husband). We affirm in part and reverse in part.

Following the filing of the wife’s petition for dissolution, the parties agreed to a property settlement. This agreement was not reduced to writing, but was presented to the trial court by the husband's counsel in the presence of both parties and the wife’s counsel.

As to the personal property, the agreement, as stated by the husband’s counsel and uncontradicted by the wife’s counsel, was that the wife was to receive “all of the household furniture, furnishings, and equipment contained in the dwelling house on that property . . . . ” However, the proposed final judgment which the husband’s counsel subsequently submitted to the trial court included a provision that the husband was to receive the stereo and stereo equipment contained in a swimming pool cabana adjacent to the marital home, but on the same property. The wife objected, correctly noting that there had been no mention of the stereo during the presentation and discussion of the property settlement before the trial court and adding that she had never agreed to the husband’s receiving the stereo. Subsequent to the hearing, the trial court decided this issue in favor of the husband, awarding him the stereo, for reasons which are not clear in the record. This appeal followed timely.

There are two possible bases for the trial court’s disposition of the stereo, both of which in our view are, however, erroneous. The first, upon which the husband relies, is that the reason this issue was not considered in the verbal settlement agreement was that the building containing the stereo was separate from, but adjoining, the dwelling house itself. This argument is without merit. Among the definitions of the term “dwelling house” contained in Black’s Law Dictionary, 596 (4th Ed. 1968) is “the apartment or building, or group of buildings, occupied by a family as a place of residence.” The definition is expanded upon as follows: “ ‘Dwelling house’ is a very flexible term. Its meaning depends not only on context, but on the determination of the courts not to permit public policy or justice to be defeated by a word. ‘Dwelling house’ often means any building within the curtilage.” Id.

The second possible basis for the trial court’s ruling may have been a misconception that the stereo had in fact been mentioned in the agreement. In fact, only the husband’s stereo record collection had been agreed upon. The stereo itself was brought up for the first time in the husband’s proposed final judgment. We tend to agree with the wife that the fact that the husband’s record collection was specifically provided for in the agreement renders it highly unlikely that the failure to include the stereo was an unintended oversight. It appears from the record to be an afterthought by the husband. We would also point out that although the stereo is worth at least one thousand dollars, the husband’s income is substantial, and he is better able to purchase another should he be so inclined than is the wife, who has a limited income. Since the husband did not raise and resolve this matter before agreeing to a property settlement, we think that, in fairness, he should not be permitted to vary the agreement at this late date.

The other point raised by appellant wife is without merit.

Accordingly, the portion of the final judgment of dissolution awarding the husband the stereo and stereo equipment is stricken. The judgment is affirmed in all other respects.

AFFIRMED in part and REVERSED in part.

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

      . Only the distribution of personal, not real, property is in issue on this appeal.


author: HOBSON, Judge.

text:
    Charles ZULLA, Appellant, v. STATE of Florida, Appellee.
    No. 81-403.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.

      Jerry Hill, Public Defender, and Kathe Kates Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

Appellant entered a plea of nolo conten-dere to the charge of resisting an officer with violence. He was adjudicated guilty and sentenced to two years imprisonment. Appellant argues that the trial court erred in not giving him credit for time spent in the Solano County, California jail pursuant to a Florida detainer pending his return to Florida to answer this charge. We agree.

Section 921.161(1), Florida Statutes (1979) provides:

A sentence of imprisonment shall not begin to run before the date it is imposed but the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence. [Emphasis added.]

A review of Florida decisions indicates that only two districts have interpreted this section. The First District in Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974) held that this statute is not applicable to periods of time incarcerated in other states. The Fourth District in Southard v. State, 363 So .2d 178 (Fla. 4th DCA 1978), considered the Kurlin decision, but declined to reach a conclusion for the following reasons:

Appellant has failed to demonstrate either in the trial court or before this court that he was, in fact, incarcerated in California pursuant to a Florida detainer. The record is void of any official reference to any incarceration in California, whether it be pursuant to a Florida de-tainer or California charges. It being the burden of the appellant to demonstrate error, we therefore find that he has failed to sustain the burden.

Sub judice, appellant has sustained his burden by supplementing the record with official verification of his incarceration in California pursuant to a Florida detainer. We choose not to follow the Kurlin decision and hold that where properly documented, credit for all time spent in foreign jails should be given. Justice Boyd wrote in Argersinger v. Hamlin, 236 So.2d 442 (Fla.1970), “from the inside all jails look alike.”

We are aware that the lower court did not have benefit of some of the communications from Solano County, California when it heard the motion to reconsider the sentence. Accordingly, we affirm the conviction, but remand for reconsideration of sentence so that credit for time spent in California can be given.

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


author: BOARDMAN, Acting Chief Judge.

text:
    Eskell H. KITCHEN, Appellant, v. Edith D. KITCHEN, Appellee.
    No. 81-260.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.

      J. Thomas Wright, Tampa, for appellant.
    Robert A. Herce of Herce & Martinez, Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Eskell H. Kitchen (the husband) appeals a final judgment granting the motion for judgment on the pleadings filed by Edith D. Kitchen (the wife) on the husband’s petition for modification of the final judgment of dissolution of the parties’ marriage. The issue before us is whether the husband was required to file a reply within twenty days after service of the wife’s affirmative defense under Florida Rule of Civil Procedure 1.140(a). We answer in the negative and reverse.

Originally the husband sought dissolution of the parties’ marriage, and the parties subsequently filed a stipulated property settlement agreement. Final judgment of dissolution, which followed the agreement essentially verbatim and included disposition of the marital property, an award of permanent periodic alimony to the wife, and a requirement that the husband assume responsibility for certain outstanding debts, was later entered in due course.

Thereafter, the husband filed the instant petition for modification of the final judgment, alleging changed circumstances involving a substantial reduction in his income and the wife’s having obtained employment. The wife filed a motion to dismiss the petition on the ground that the modifications sought involved matters covered by the property settlement agreement, which motion was denied. She then filed an answer, raising the ground stated in her motion to dismiss as an affirmative defense.

Seven months later the wife filed a motion for judgment on the pleadings, asserting that since the husband had filed no reply to her affirmative defense as required by Florida Rule of Civil Procedure 1.100(a), there was no issue of material fact and she was entitled to judgment as a matter of law. The husband then filed a response to the wife’s affirmative defense denying all of her allegations except the allegation that the parties had entered into the property settlement agreement. The wife moved to strike this response. After hearing, the trial court granted both the wife’s motion to strike and her motion for judgment on the pleadings. This appeal followed timely.

Rule 1.100(a) provides in pertinent part: “If an answer . . . contains an affirmative defense and the opposing party seeks to avoid it, he shall file a reply containing the avoidance. No other pleadings shall be allowed.”

Rule 1.110(e) provides in pertinent part: “Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.” “Avoiding” an affirmative defense is different from a denial of that affirmative defense, and a denial is neither required nor permitted by the rules.

The issue now before us was discussed at length in Moore Meats, Inc. v. Strawn, 313 So.2d 660 (Fla.1975). Pertinent portions of the opinion read as follows:

Florida’s “Dean of Rules” is the Honorable Henry P. Trawick, Jr., who served long and devotedly on the Supreme Court Committee on Rules of Civil Procedure and as Chairman thereof. He is the author of Trawiek’s Florida Practice and Procedure and has highlighted the answer [on the point in question] .... Mr. Trawick in an enlightening article “To Reply or Not to Reply?” published in the December 1973 Florida Bar Journal pointed out:
“. .. The rule is crystal clear . . .:
“. . . Every law student should learn that two classes of defensive pleas in bar exist. The first is a plea by way of traverse. This means a denial of an ultimate fact pleaded in the preceding pleading. The second class of defensive plea is one by way of confession and avoidance. All affirmative defenses are pleas by way of confession and avoidance. They admit the allegations of the plea to which they are directed and allege additional facts that avoid the legal effect of the confession. For example, the plea of contributory negligence that was formerly available admitted the negligence of the pleader and alleged that the opposing party was also guilty of negligence. Under the substantive law then in effect, proof of contributory negligence was a complete defense.”
. . . Circuit Judge David U. Strawn in an order of great clarity ruled:
“FRCP 1.100(a) only requires a reply to an affirmative defense when the opposing party seeks to avoid that defense. The rule specifically does not require a reply merely to deny the allegations of the defense or to show that the pleader lacks knowledge of the truth of those allegations.”

Id. at 661—662.

The distinction between denial and avoidance and the interpretation of the rules made by Mr. Trawick and the Moore Meats court have been followed in several cases, e. g., Equibank v. Penland, 344 So.2d 629 (Fla. 1st DCA 1977); Miller v. Smith, 341 So.2d 1021 (Fla. 4th DCA 1977); Pickard v. Miggins, 311 So.2d 686 (Fla. 3d DCA 1975), and we are in accord with all of the foregoing authorities.

Under the holding in Moore, it is only when “new matter” is sought to be asserted to avoid the affirmative defense that a reply is required. Consequently, where, as here, the plaintiff does not seek to avoid the substantive allegation of the defendant’s affirmative defense, he need not file, indeed, is precluded by the rules from filing, a reply.

The wife relies on Tax v. Reiser, 328 So.2d 517 (Fla. 4th DCA 1976), in which the plaintiffs filed a personal injury action resulting from a fall on leased premises. By amended answer the defendants affirmatively alleged that the exculpatory clause of the written lease constituted an absolute defense. The plaintiffs did not reply to this defense, and the trial court granted summary judgment against them. The Fourth District Court of Appeal affirmed, stating:

The record before the trial court reflects that the written lease was not effective on its face until December 1,1972. The record is silent as to whether there was some other agreement between the parties covering the period between November 21, 1972, [the date the accident occurred] and December 1, 1972, which could have rendered the exculpatory clause inapplicable. Thus there may well be a genuine issue of material fact existing between the parties hereto. However, appellants did not reply to the affirmative defense as they were required to do by Rule 1.100(a) RCP. Therefore entry of the summary judgment was appropriate.

Id. at 518. We see no conflict between this case and the authorities cited supra, however, nor do we find the facts in Tax v. Keiser analogous to the facts involved here.

Accordingly, the final judgment in favor of the wife is REVERSED and the cause is REMANDED for further proceedings consistent with this opinion.

OTT and RYDER, JJ., concur.

      . Ironically, the affirmance was without prejudice to the plaintiffs “to move for leave to file a reply, if they are able,” to the defendants’ affirmative defense, the appellate court noting that the trial court erred in refusing to allow the plaintiffs to file a belated reply. Thus Tax v. Keiser would tend to support a reversal here even if we were to find the wife’s arguments on the merits correct, inasmuch as the husband here filed a tardy reply to the wife’s affirmative defense.

      . Lest this decision be misinterpreted or misconstrued, we mention that we neither reach nor decide the merits of the husband’s petition for modification.


author: HOBSON, Acting Chief Judge.

text:
    Jeffrey Lance TIERNEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-958.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.
    Raymond E. LaPorte, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant Jeffrey Lance Tierney appeals his conviction and sentence for burglary of a dwelling, grand theft of personal property and unauthorized temporary use of a motor vehicle. In particular, appellant argues that the trial court erred in failing to grant his motion to suppress incriminating statements made by appellant while in custody.

At trial, Deputy Sides of the Pasco County Sheriff’s Department testified that he and Deputy Coast arrested appellant in an abandoned house. The deputies handcuffed appellant and read him Miranda warnings from a card. Deputy Sides testified that, at that time, appellant stated that he understood his rights, that he did not want to talk to the deputy and that he wanted an attorney. Appellant told Deputy Sides the name of his attorney and Deputy Sides attempted to contact him.

Deputy Sides further testified before the jury that, some one and one-half hours after appellant’s arrest, he arrived at the sheriff’s office booking area and observed appellant handcuffed to a wall-ring. Deputy Sides proceeded past appellant and sat down at a nearby desk to type up a probable cause affidavit in order to book appellant’s codefendant, Tavernier. Deputy Sides stated that appellant was extremely upset at the time. After typing for a few minutes, Deputy Sides swiveled around in his desk chair, facing appellant, and stated:

T’m going to level with you. I’m going to tell you exactly what the other defendant, Mr. Tavernier, had told me.’ This is what I did.
* * * * * *
Well, I turned around in my chair, scooted back to my typewriter, started typing. The defendant said to me, ‘I hit the place, but I’m not taking the rap by myself.’ He said, ‘Mr. Tavernier drove that car just as much as I drove it. Mr. Tavernier took just as many articles out of that home as I took. I’m not taking the rap for this thing by myself.’ This is, in essence, what Mr. Tierney stated to me.

Appellant argues that the admission of the inculpatory statement, made over his objection, violated the principles of the Miranda decision as well as the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States.

The issue before us is whether the remarks made by Deputy Sides to appellant constitute “custodial interrogation” within the meaning of Miranda and whether appellant’s inculpatory statements were made in response to “custodial interrogation.” The United States Supreme Court addressed this issue in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The Court discussed “interrogation” in the context of the Miranda opinion and stated:

‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.
We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, to term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

100 S.Ct. at 1689, 1690.

Clearly, appellant was not subjected to express questioning by Deputy Sides. The issue is whether Deputy Sides should have known that his remarks were reasonably likely to elicit an incriminating response. The case of Toliver v. Gathright, 501 F.Supp. 148 (E.D.Va.1980), is directly on point. The District Court stated:

Confronting an accused with incriminating evidence is a common and traditional method of prompting a recalcitrant suspect to confess. That it is also frequently an effective tactic may be judged from the volume of cases involving confessions so induced. As the trial judge noted, and as Weaver surely knew, it is a ‘common reaction’ for an accused to respond to incriminating evidence by speaking. Faced with evidence indicating that the police already believe him to be guilty, an accused may conclude that he has nothing to lose by making a statement, or may fear that silence will be taken as an admission of guilt.

In applying the Innis test to the facts of the instant case, we have concluded that Deputy Sides, regardless of his underlying intent, should have known that his remarks to appellant were reasonably likely to elicit an incriminating response. Thus, the admission of the inculpatory statements were in violation of the principles of Miranda and Innis. We hereby reverse the judgment of conviction entered against appellant and remand this cause for a new trial.

REVERSED and REMANDED.

OTT and CAMPBELL, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: CAMPBELL, Judge.

text:
    Linda Baker McINTYRE, Petitioner, v. Kenneth E. McINTYRE, Respondent.
    No. 81-1305.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.
    Marsha G. Rydberg of Taub & Williams, Tampa, for petitioner.
    Paul B. Johnson of Gregory, Cours, Pan-iello, Johnson, Hayes & Hoft, Tampa, for respondent.
   CAMPBELL, Judge.

Petitioner, wife in a dissolution of marriage action, seeks relief by writ of certiora-ri from an order requiring her personal psychiatrist to surrender her medical records to a court-appointed psychologist. She contends that this is a violation of the psychotherapist-patient privilege found in section 90.503, Florida Statutes (1979). We agree and grant the writ.

In the action below both parties alleged that they were fit and proper to have the care, custody and control of their minor children, while denying that their spouse was so suited. The court appointed a psychiatrist and a psychologist to examine each of the parties. The court-appointed psychologist informed the court that it would be helpful for him to review the records of the wife’s personal psychiatrist before he made his custody recommendation. He further informed the trial judge that this review would be in the best interests of the court, the parties and the children. The wife objected on the basis of the psychotherapist-patient privilege and the lower court overruled her objection.

Section 90.503(4)(c), Florida Statutes (1979), provides:

(4) There is no privilege under this section:
(c) For communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense ....

Two Florida districts have held in child custody disputes that a spouse does not make his or her mental condition “an element of his or her defense” simply by seeking custody. See Mohammad v. Mohammad, 358 So.2d 610 (Fla. 1st DCA 1978), and Roper v. Roper, 336 So.2d 654 (Fla. 4th DCA. 1976). The court in Roper noted:

We recognize that in a child custody case the mental health of a parent may be a relevant issue. Where this issue is raised the trial court must maintain a proper balance, determining on the one hand the mental health of the parents as this relates to the best interest of the child, and on the other maintaining confidentiality between a treating psychiatrist and patient. The court in this case has an alternate tool which may accomplish both purposes. Upon proper motion the court may order a compulsory psychiatric examination.

Id. at 656-57.

In the case sub judice the trial judge used this alternate tool by appointing the psychiatrist and psychologist. Unless there is a radical change in the proceedings similar to Critchlow v. Critchlow, 347 So.2d 453 (Fla. 3d DCA 1977), where the wife was committed for mental treatment during a child custody dispute, this alternate tool of court-appointed experts should eliminate any need to breach the psychotherapist-patient privilege. We are sympathetic with the trial judge’s dilemma and recognize that his ruling was directed only towards the best interests of the children. However, since he had appointed both a psychiatrist and a psychologist to examine both the parties here, we see no necessity to invade the wife’s privilege with her personal psychotherapist. Accordingly, the trial court’s order requiring the wife’s psychiatrist to submit records to the court-appointed psychologist is reversed and the case is remanded for further proceedings consistent with this opinion.

SCHEB, C. J., and DANAHY, J., concur.


author:
WATSON, Justice.
     LEMMON, Justice,

text:
    STATE of Louisiana v. Dock SMITH.
    No. 80-KA-2557.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Parmer, Dist. Atty., William J. Knight, Abbott J. Reeves, Herbert R. Alexander, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Wendell E. Tanner, Slidell, for defendant-appellant.
   WATSON, Justice.

Defendant, Dock Smith, pled guilty to carnal knowledge of a juvenile in violation of LSA-R.S. 14:80. He was sentenced to four years at hard labor. On appeal, Smith contends the sentence is excessive; the sentencing guidelines of LSA-C.Cr.P. art. 894.1 were not followed; and the trial court erred in not allowing him to show mitigating factors.

PACTS

On June 15,1979, Dock Smith, then twenty years of age, had sexual intercourse with Amy W., then aged twelve, while escorting Amy to her home.

The trial court ordered a pre-sentence investigation report and reviewed the report before the sentencing. No evidence or argument was adduced on behalf of Smith at the sentencing hearing.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that his four year sentence is excessive and the trial court failed to properly apply the sentencing guidelines of LSA-C.Cr.P. art. 894.1.

The trial court noted the circumstances of the offense and took cognizance of the defendant’s clean record and steady employment history. Several of the sentencing guidelines of LSA-C.Cr.P. art. 894.1 B were considered. The trial court noted that the defendant’s conduct had caused harm to the victim. She had an abortion, as well as mental and emotional difficulties. The trial judge stated that he was unable to determine whether there was provocation or inducement by the victim. Attacks by Smith’s family on the victim’s character and truthfulness could not be verified. It was noted that the victim could not be compensated for this crime. In light of the type of crime committed, the other factors under LSA-C.Cr.P. art. 894.1 B were found inapplicable. The trial judge stated that a lesser sentence would deprecate the seriousness of the crime and said he had been informed defendant’s attitude “is not the best”.

Defendant asserts that the trial court erroneously failed to consider certain significant factors of LSA-C.Cr.P. art. 894.1 B. The trial court did take notice of defendant’s clean record [paragraph (7)]. The court did not indicate whether Smith’s bad attitude made it likely he would commit another crime [paragraph (9)]. The trial court did not state for the record his consideration of the following relevant factors;

“(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
“(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
“(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
“(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.”

The defendant asserts that each of these considerations weighed in his favor and that the sentence imposed is excessive.

The excessiveness of a sentence is a question of law reviewable by this court under its appellate jurisdiction. State v. Gulden, 399 So.2d 194 (La., 1981); State v. LaFleur, 391 So.2d 445 (La., 1980); State v. Sepulvado, 367 So.2d 762 (La., 1979). Sep-ulvado established that the trial court should state specific reasons for a sentence in order that it may be adequately reviewed. The trial judge is not required to articulate every mitigating and aggravating circumstance presented in LSA-C.Cr.P. art. 894.1. However, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the individual defendant. State v. Guiden, supra; State v. Franks, 373 So.2d 1307 (La., 1979).

A sentence is excessive and unconstitutional if it is grossly out of proportion to the severity of the crime or amounts to the needless imposition of pain and suffering. State v. Goode, 380 So.2d 1361 (La., 1980); State v. Bonanno, 384 So.2d 355 (La., 1980). The sentence here does not appear excessive on its face.

State v. Sepulvado, supra, which dealt with review of a sentence for carnal knowledge of a juvenile, noted the following:

“. .. [A] penitentiary sentence of the maximum five years might easily be justified for a mature man who had seduced a frightened and confused twelve-year-old girl, under circumstances falling just short of rape, and who had exhibited similar behavior in the past but showed little hope of reformation. Yet such a penalty might be excessive if applied to a love-struck teenager, of otherwise unblemished character and record, who commits the offense in the course of a teenage romance.

In light of the parties’ relative ages and the traumatic effect upon the victim, a four year sentence is not excessive.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Smith contends that the trial court erred in failing to allow defendant the opportunity to show mitigating factors before sentence was imposed.

The sentencing proceeding was brief. Neither the defendant nor his counsel said anything. No objection was made to the sentence. Defense counsel did not request that he or the defendant be allowed to present evidence of mitigating factors. In the absence of any request by defendant or his counsel, the trial judge’s failure to afford such an opportunity is not error.

This assignment of error lacks merit.

For the foregoing reasons, the sentence is affirmed.

AFFIRMED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

Although the Code of Criminal Procedure has not expressly recognized the defendant’s “right of allocutus”, I disagree that the burden is on the defendant to interrupt the judge during sentencing in order to assert his right to present evidence or argument. Rather, fundamental fairness dictates that the trial judge, prior to imposing the sentence and articulating the reasons therefor, afford defendant an opportunity to present evidence or argument relevant to the sentence, particularly when (as in this case) the trial judge contemplates basing the sentence on a presentence investigation report which the defendant has not otherwise had an opportunity to rebut. See Fed.R.Cr.P. 32(a); Rule 613, Uniform Rules of Criminal Procedure. Only by doing so can the trial court insure a fully-informed exercise of sentencing discretion.

I would vacate the sentence and remand for a proper and complete sentencing hearing.

       Judges Frederick Stephen Ellis, Morris A. Lot-tinger, Jr., and Elven E. Ponder of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Justices Calogero, Dennis, Watson and Lem-mon.

      . LSA-R.S. 14:80 provides:
      “Carnal knowledge of a juvenile is committed when:
      “(1) A male over the age of seventeen has sexual intercourse, with consent, with any unmarried female of the age of twelve years or more, but under the age of seventeen years, when there is an age difference of greater than two years between the two persons; or
      “(2) A person over the age of seventeen has anal or oral sexual intercourse, with consent, with a person of the age of twelve years or more, but under the age of seventeen years, when there is an age difference of greater than two years between the two persons. “Lack of knowledge of the juvenile’s age shall not be a defense. Emission is not necessary; and penetration, however slight, is sufficient to complete the crime.

        “Whoever commits the crime of carnal knowledge of a juvenile shall be imprisoned, with or without hard labor, for not more than ten years.”

      . LSA-C.Cr.P. art. 894.1 B provides:
      “B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      “(1) The defendant’s criminal conduct neither caused nor threatened serious harm; “(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      “(3) The defendant acted under strong provocation;
      “(4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      “(5) The victim of the defendant’s criminal conduct induced or facilitated its commis-
      “(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      “(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      “(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur; “(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      “(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      “(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.”

      . LSA-C-Cr.P. art. 894.1.

      . Under LSA-R.S. 14:80 the maximum possible sentence is ten years with or without hard labor.

      . State v. Sepulvado, 367 So.2d at 767.

      . For an interesting discussion of the legislative history of the right to speak before sentence see C.Cr.P. Art. 871, Comment (c). The present statutes must be construed in light of our constitutional duty to review the trial court’s exercise of sentencing discretion.

      . See, for example, the illustrative sentencing colloquy in the Louisiana Judge’s Benchbook, Criminal Proceedings, Imposition of Sentence, Louisiana Judicial College, 1980.
      Ideally, in serious cases in which a severe sentence may be imposed, the trial court should order a presentence investigation and should afford defense counsel (as well as the defendant himself) an opportunity to supply information to the probation officer preparing the report. See C.Cr.P. Art. 875. Again ideally, the trial court should thereafter furnish defense counsel the information contained in the report or afford him an opportunity to review the report (with the exception of those portions reflecting sources of confidential information), thereby assuring accuracy and the inclusion of information as to favorable or mitigating factors that defendant claims will aid the court in determining sentence. C.Cr.P. Art. 877. This review should, of course, be permitted at a time before the trial court decides what the proper sentence should be.
      Because the trial court’s sentencing function is highly discretionary, it is very important that defense counsel be afforded an opportunity and invited to submit favorable information before the judge makes up his mind regarding the correct sentence. This may not be required by the Code, but is certainly not prohibited, and such a procedure may be necessary if this court is to perform adequately the constitutionally mandated function of reviewing the exercise of discretion in sentencing.
      As long as the trial court does not consider inappropriate factors and affords an opportunity to submit favorable material, as well as to respond to or rebut unfavorable material, this court should affirm a sentence, except in a most unusual and extreme case. Because this wide deference is due to the trial court’s exercise of sentencing discretion, that sentence must be arrived at by a procedure which affords to the defendant a fair opportunity to present his case. See Justice Calogero’s excellent discussion of the need for a sentencing hearing in State v. Telsee, 388 So.2d 747 (La., 1980).