text:
    Jesse Lamar HALL, Appellant, v. STATE of Florida, Appellee.
    No. 80-1069.
    District Court of Appeal of Florida, Fifth District.
    May 13, 1981.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

The Public Defender has filed an Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), motion and brief representing to this court that no reversible error appears and requesting leave to withdraw as counsel for appellant. This court gave appellant thirty days within which to file a brief in his own behalf. None was filed. We have reviewed counsel’s brief and examined the record and find the appeal is without merit. Appellant entered a negotiated plea of nolo contendere with no reservation of any right of appeal; then, without any effort to withdraw his plea, he promptly filed this appeal. He cannot appeal under these circumstances. Section 924.06(3), Florida Statutes (1979); Fla.R.App.P. 9.140(b); Robinson v. State, 373 So.2d 898 (Fla.1979); Cassiani v. State, 384 So.2d 47 (Fla. 1st DCA 1980); Counts v. State, 376 So.2d 59 (Fla.2d DCA 1979).

The Public Defender’s motion to withdraw is granted and the appeal is DISMISSED.

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


source: Caselaw Access Project

author: COWART, Judge.

license: Public Domain

text:
    David E. BALLARD, Petitioner, v. Honorable Frank N. KANEY, Circuit Judge, Ninth Judicial Circuit of Florida, Respondent.
    No. 81-122.
    District Court of Appeal of Florida, Fifth District.
    May 13, 1981.
    Ed Leinster, Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for respondent.
   COWART, Judge.

Petitioner seeks a writ of prohibition to prevent the respondent trial judge from presiding over any further criminal prosecution of him because he was not tried within 180 days of his arrest as directed by Florida Rule of Criminal Procedure 3.191(a)(1).

During the 180 days after petitioner’s arrest he participated in plea bargaining and on the 184th day entered a negotiated conditional plea of guilty which was later rejected by the court pursuant to a condition of the plea agreement. On the 422nd day after his arrest petitioner moved for a continuance. Mere participation in plea bargaining does not waive speedy trial rights. Stuart v. State, 360 So.2d 406 (Fla.1978), State v. Bragg, 367 So.2d 1066 (Fla. 4th DCA 1979). See also Mellman v. Rudd, 389 So.2d 706 (Fla. 1st DCA 1980). When the speedy trial rule period has run the right of the accused to discharge is not affected by acts which might have earlier constituted a waiver.- Muller v. State, 387 So.2d 1037 (Fla. 3d DCA 1980); Llanusa v. Glickstein, 376 So.2d 45 (Fla. 4th DCA 1979); White v. State, 338 So.2d 256 (Fla. 4th DCA 1976); Hammock v. State, 330 So.2d 522 (Fla. 1st DCA 1976).

Davis v. State, 386 So.2d 1287 (Fla. 3d DCA 1980), and State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA 1978), cited by respondent, are distinguishable because in those cases the plea was entered before the speedy trial rule period had expired.

This court has held that prohibition is a proper remedy to bar further prosecution when a discharge has been erroneously denied after a violation of speedy trial rule rights. Bates v. Keating, 396 So.2d 1172 (Fla. 5th DCA 1981). Accordingly the petitioner is discharged and the writ of prohibition is

GRANTED.

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


author: COBB, Judge.

text:
    Chris COLUMBO, Petitioner, v. Ronald A. LEGENDRE, Temporary Circuit Judge, Ninth Judicial Circuit; and Florida State Department of Health and Rehabilitative Services, Respondents.
    No. 81-485.
    District Court of Appeal of Florida, Fifth District.
    May 13, 1981.
    Norman J. Smith of Brinson, Smith & Heller, P. A., Kissimmee, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for respondent Legendre.
    Samuel Patterson Stafford, Asst. Dist. Counsel, Orlando, for respondent Dept, of Health and Rehabilitative Services.
   COBB, Judge.

The petitioner for prohibition, Chris Co-lumbo, is the principal of Denn John Middle School from which M.L.C., a fourteen-year-old minor, was suspended for ten days on April 14, 1981. The preceding day, in a juvenile dependency proceeding held under Chapter 39, the respondent Ronald A. Legendre, as “temporary” circuit judge, had adjudicated the minor to be dependent, placed him in the temporary custody of the Florida State Department of Health and Rehabilitative Services (H.R.S.), and included the following directive in the judgment:

Said child shall attend school starting April 14,1981, with no unexcused absences. DENN JOHN MIDDLE SCHOOL IS ORDERED TO ACCEPT THE SAID CHILD.

Neither Columbo nor the Osceola County School Board was a party to the dependency proceeding, nor was either notified of it prior to April 14, 1981. On that day, Co-lumbo was requested by H.R.S. to admit M.L.C. to the school based on the above order. On that same day, however, a ten-day school suspension order became effective against M.L.C.; therefore, Columbo refused the minor admission to school. Thereupon, H.R.S., the custodian of the child at that point, undertook to enforce the court’s order against the school. The respondents herein, however, do not challenge the procedural validity of the school suspension order.

Immediately upon Columbo’s refusal of admission, he was served with a motion by the state attorney, acting on behalf of H.R.S., seeking to have him held in contempt for violating the terms of the court order.

Columbo seeks prohibition, arguing that the sole and exclusive authority to operate the public schools has been granted to the district school board by the Legislature and the Constitution of Florida. Art. IX, Sec. 4, Fla.Const.; §§ 230.01, 230.03, 230.22(1) and (2), 230.23(6)(c) and (d), and 230.35, Fla.Stat. (1979). He contends that the court order of April 13, insofar as it was directed to the school, was void for lack of jurisdiction “in that the court has no authority to set aside, overrule, or otherwise interfere with a pub-’ lie school suspension except when the issue of the validity of that suspension has been raised and adjudicated.” See Canney v. Board of Public Instruction of Alachua County, 231 So.2d 34 (Fla. 1st DCA 1970); and State ex rel. Dept. of Health & Rehabilitative Services v. Sepe, 291 So.2d 108 (Fla.3d DCA 1974).

The respondents argue, inter alia, that the petitioner has an adequate remedy at law by direct appeal at such time as he may be actually adjudicated in contempt, which has not yet occurred. We do not agree. Here, the petitioner is threatened with contempt for failure to comply with a patently void order entered by the trial court without any vestige of jurisdiction. See State ex rel. Wainwright v. Booth, 291 So.2d 74 (Fla.3d DCA 1974), cert. denied, 300 So.2d 257 (Fla.1974); Walters v. Blanton, 126 Fla. 428, 171 So. 230 (1936). Neither Columbo nor the school board had notice or opportunity to be heard. See State ex rel. O’Dare v. Kehoe, 189 So.2d 268 (Fla.3d DCA 1966), cert. denied, 200 So.2d 812 (Fla.1967). We agree with the position asserted by the petitioner, although we do not find section 57.-105, Florida Statutes (1979), regarding assessment of attorney fees to be applicable to this cause.

Accordingly, the writ of prohibition is granted and the respondents, Ronald A. Le-Gendre, as Temporary Circuit Judge, Ninth Judicial Circuit, and the Florida State Department of Health and Rehabilitative Services, are hereby directed to refrain from any further attempt to enforce the provision of the court judgment of April 13, 1981, quoted above, against the petitioner, Chris Columbo.

GRANTED.

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


author: PER CURIAM.

text:
    Lancey WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1332.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Rehearing Denied Aug. 12, 1981.

      Alan H. Schreiber, Public Defender, Stuart M. Lerner, Channing E. Brackey and Richard M. Saccocio, Asst. Public Defenders, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Marc E. Kirk and Stewart J. Bellus, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Lancey Williams was found guilty of murder in the second degree and sentenced to seventy-five years in prison.

Appealing from that conviction and sentence, Williams asserts that nine prejudicial errors committed by the trial court deprived him of a fair trial. Upon consideration of each of the nine points raised by appellant and after review of the record we determine that none of appellant’s arguments is sufficiently meritorious to warrant, a new trial. However, Williams’ contention that the trial court erred in failing to make a specific finding as to the voluntariness of his confession does merit our discussion.

The standard of review to determine whether a trial .court has properly discharged its duty to determine that a confession was given freely and voluntarily is set out in the opinion of Justice McDonald in Peterson v. State, 382 So.2d 701, 702 (Fla.1980):

When the admission of a confession is an issue because of a factual controversy as to its voluntariness, it is the responsibility of the trial judge to first find that it was voluntary before submitting it to the jury. This simply follows the rule that it is the duty of the trial judge to determine the admissibility of all evidence. When the trial judge admits into evidence a statement or confession to which there has been an objection, on review the record must reflect with unmistakable clarity that he found that the statement or confession was, by the preponderance of the evidence, voluntary and made in accordance with Miranda. If an independent review of the record fails to disclose with unmistakable clarity that the trial judge found that the statement was voluntary and in accordance with other constitutional requirements, or if it appears that he imposed upon the state a lesser burden of proof than preponderance of the evidence in weighing the question of voluntariness, it is reversible error.
The trial judge can make this task easier by reciting his conclusionary findings, but the failure to do so is not fatal when the record, with unmistakable clarity, demonstrates that he understood his responsibilities and properly fulfilled them.

The appellant takes the position that the trial court was required to specifically state on the record or in a written order that he found appellant’s confession was “voluntary.” In essence appellant claims that the actual word “voluntary” must be used by the trial judge before the confession may be admitted in evidence. However, the Florida Supreme Court has rejected this “magic word” argument:

[D]ue process is not offended when the issue of voluntariness is specifically before the judge and he determines that the statements are admissible without using the magic word “voluntary.”

Antone v. State, 382 So. 1205, 1213 (Fla.1980).

In our view the record in this case does reflect, with unmistakable clarity, that the trial court determined that appellant’s confession was voluntary prior to admitting the statements into evidence. In fact, at trial, appellant’s counsel acknowledged that the trial court had already considered and rejected the objections raised in the motion to suppress that the statements were not given voluntarily. The only problem that has caused confusion on this issue is the lack of a written order in the record denying appellant’s motion to suppress the confession.

This oversight having been brought to our attention at an earlier stage of these proceedings, we relinquished jurisdiction to the trial court for the purpose of establishing whether an order had been issued previously.

Although no written order was ever located, the trial judge’s secretary filed an affidavit stating that an order denying the motion to suppress and reflecting the reasons therefor had been signed by the judge and filed by her with the clerk although the clerk had no record of such an order. A three-day hearing on appellant’s motion to suppress, involving extensive evidence and lengthy arguments by counsel as to the voluntariness and admissibility of the statements concluded on April 27, 1977, and the trial judge, although not recalling whether his ruling was conveyed to counsel orally or in writing, did recall ruling on the motion and finding that the confession was given voluntarily. The trial judge thereupon, in an attempt to reconstruct what had taken place previously, entered a written order nunc pro tunc to April 29, 1977, the date before trial that he found he had ruled on the issue, finding that appellant’s statements had been given voluntarily.

We point out that the claim that the trial court had not ruled on the voluntariness issue was raised for the first time by a motion filed on February 22, 1979, almost two years after appellant’s trial. We hold that this belated attempt to take advantage of the absence of a written order does not succeed, particularly in view of the record which clearly indicates that the trial court fulfilled its duty and found that appellant’s statements were voluntary before admitting them into evidence. We therefore affirm appellant’s conviction and sentence.

AFFIRMED.

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


text:
    Leslie BELL, by and through her next friend, Betty Neil, Appellant, v. Don MALACOATE, Llani Collins Marsh and Aetna Insurance Company, Appellees.
    No. 79-977.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Robert L. Switkes of Law Offices of Norman K. Schwarz, P.A., Miami Beach, for appellant.
    Linda M. Rigot of Ress, Gomez, Rosenberg & Howland, P. A., North Miami, for appellees.
   PER CURIAM.

Plaintiff appeals from a summary judgment entered in favor of the defendant in a comparative negligence case. Since the testimony of two witnesses was in direct conflict with that of the minor plaintiff, we find that this is a classic case in which a summary judgment should not be entered. While the jury might very well choose to believe the two non-party witnesses rather than the plaintiff, this is not an appropriate case for summary judgment. The trial court necessarily chose either to disbelieve or disregard the testimony of the plaintiff/child. The summary judgment is, therefore, reversed.

BERANEK and HURLEY, JJ., concur.

HERSEY, J., concurs in result only.


author: BERANEK, Judge.

text:
    Jonathan BLUNT, Appellant, v. STATE of Florida, Appellee.
    No. 79-1133.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals his conviction and sentence for attempted sexual battery. We affirm. Defendant asserts the court erred in denying admission into evidence of testimony regarding the victim’s past sexual conduct. We conclude that the testimony was properly excluded under the rationale of Hodges v. State, 386 So.2d 888 (Fla. 1st DCA 1980), wherein the court stated in relevant part:

[T]he evidence must be of such a nature as to give rise to a reasonable assumption that because the victim engaged in a certain disclosed pattern of conduct or behavior, the victim probably consented to the same with the accused.

The testimony here showed only that the victim had been previously raped and previously had illegitimate children. This did not meet the requirements of Section 794.-022(2), Florida Statutes (1979).

Defendant also contends error occurred in the State’s closing argument. The prosecutor, with obvious reference to defendant, said: “Animals belong in cages.” In response, defense counsel stated, “I object.” No grounds, argument or explanation were stated, and the trial court never ruled. There was no motion for mistrial nor request for any curative instruction. The argument of the State Attorney was improper, but defense counsel was also remiss in failing to properly object and in failing to make the slightest attempt at securing a ruling. Under the circumstances, we conclude State v. Cumbie, 380 So.2d 1031 (Fla.1980); and Mead v. State, 381 So.2d 743 (Fla. 3d DCA 1980), require an affirmance of this point. See LeRetilley v. Harris, 354 So.2d 1213 (Fla. 4th DCA 1978).

Defendant’s last argument is that the court erred in denying his requested jury instruction on absence of flight when the police arrived. We find no error in this regard and the judgment below ,is thus affirmed.

AFFIRMED.

HERSEY and HURLEY, JJ., concur.


author: MOORE, Judge.

text:
    Floyd DUDLEY, Appellant, v. STATE of Florida, Appellee.
    No. 79-1288.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

The appellant appeals a fifteen year prison sentence entered upon revocation of probation. His sole contention on appeal is that the trial court erred in not certifying him for a hearing pursuant to Section 917.-14, Florida Statutes (1977) to determine whether he was a mentally disordered sex offender. We agree with this contention and reverse the sentence in accordance with our opinion in Durbin v. State, 385 So.2d 172 (Fla. 4th DCA 1980).

The appellant was placed on probation in 1974 after having pled guilty to a charge of indecent assault upon a child. Two psychiatrists were appointed by the court to examine the appellant. Although one of the psychiatrists reported that appellant was mildly retarded, neither one believed him to be a mentally disordered sex offender at that time.

In 1976, the appellant’s probation was extended as a result of his having been found guilty of committing a burglary. The probation was again extended in 1978 when appellant was found guilty of having failed to comply with the special conditions of his probation. As a special condition of the extended probation, the appellant was required to participate in a live-in drug rehabilitation program. In January, 1979, appellant was charged with violating his probation by kidnapping and sexually battering a thirteen year old male. Two psychiatrists were again appointed to examine the appellant. Although both agreed that the appellant was competent to stand trial, one of the psychiatrists (who had also examined appellant in 1974) stated that appellant needed to be in a rehabilitative program that was more psychiatrically oriented than those in which he had participated in the past. The other psychiatrist reported:

There is no doubt that the subject does have a sexual deviation and must be considered to be a mentally disordered sex offender, being free of a major mental disorder but being preoccupied with and motivated towards sex, this being apparently his third episode of homosexual pedophilia.
Although there is some question whether he could benefit from the sex offender’s program in the Division of Mental Health state hospital system, a more proper evaluation should be done by the hospital staff to consider him for such a program and without further testing, it is my opinion that he would qualify marginally for such a program at this time.

With this evidence before him, the trial court should have certified the appellant for a hearing to determine whether he was a mentally disordered sex offender and the failure to do so was an abuse of discretion. Accordingly, the sentence imposed upon the appellant is reversed and this cause is re-. manded with direction to conduct such a hearing. See, Durbin, supra.

REVERSED and REMANDED.

ANSTEAD and GLICKSTEIN, JJ., concur.


author: DOWNEY, Judge.

text:
    James Allen WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1830.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.

      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Puhlic Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was charged in Count I with first degree murder, in Count II with attempted first degree murder, and Count III with armed robbery. He was convicted of second degree murder, attempted first degree murder, and robbery and subjected to consecutive sentences of 99 years, 30 years, and life.

Appellant entered the mobile home of Lionel and Germaine Goudreau. Appellant was armed with a pistol and demanded money. He took Lionel’s wallet and, after fruitless attempts to get more money, he said: “You don’t have any money. I am going to shoot you and you are going to die.” He then shot both Lionel and Ger-maine. Lionel died, but Germaine recovered.

Appellant contends the trial court erred in allowing cumulative fingerprint witnesses. However, at trial defense counsel conceded the allowance of such cumulative expert witness testimony was discretionary, and appellant has failed to demonstrate any abuse of discretion on the part of the trial court in permitting the cumulative expert witness testimony. In addition, the State had the burden of proof regarding the similarity of fingerprints and thus cumulative testimony appears reasonable.

Another asserted trial error involved allowing the State to adduce evidence from one of its fingerprint experts showing that he had been first hired in the case by the defense. Appellant also complains that the State asked Germaine if her husband was dead, to which she answered in the affirmative. No error has been demonstrated by these rulings.

Appellant’s second point contends that the trial court erred in sentencing appellant for the robbery conviction since robbery was the basis for the jury’s finding the appellant guilty of second degree murder and attempted first degree murder. Appellant relies mainly on State v. Pinder, 375 So.2d 836 (Fla.1979). There the Supreme Court held that a defendant cannot be convicted of and punished for first degree murder and two other felonies where the evidence to sustain the murder conviction was furnished solely by proof that the homicide occurred as a result of the commission of an underlying felony or felonies. However, the Court went on to point out that:

Had there been evidence of premeditation. .. there would be no question that Pinder could have been convicted of the first-degree murder, burglary, and the sexual battery because, in that event, proof of the felony would not have been necessary to sustain the murder conviction. 375 So.2d at 839.

In the present case the evidence to sustain the second degree murder conviction and the attempted first degree murder conviction did not come from proof that the homicide and the attempted homicide occurred solely as a result of the commission of the robbery. . Proof of the homicide and the attempted homicide came from Mrs. Gondreau, who testified that the appellant, at gunpoint, took Mr. Gondreau’s wallet which contained “a little money.” Appellant then looked through Mrs. Gondreau’s handbag and her sewing basket, searching for money. After these acts appellant then told Mr. and Mrs. Gondreau he was going to shoot and kill them. He then shot both Mr. and Mrs. Gondreau, killing him and wounding her. Under these circumstances the trial court properly adjudicated appellant guilty of robbery and properly imposed sentence for the robbery as well as the second degree murder and the attempted first degree murder. State v. Pinder, supra. Thus, appellant’s reliance on Pinder for reversal of the conviction and sentence on the robbery count is misplaced.

The judgments and sentences appealed from are affirmed.

AFFIRMED.

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


text:
    In the Interest of R. R., a child.
    No. 79-2602.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Elton H. Schwarz, Public Defender, and Moría R. Malmad, Asst. Public Defender, Fort Pierce, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from an adjudication of delinquency and an order placing appellant on probation. The juvenile was charged with burglary of a conveyance under Section 810.02(1), Florida Statutes (1979), and found guilty of petit theft under Section 812.014, Florida Statutes (1979). On appeal it is asserted that petit theft is not a lesser included offense of burglary of a conveyance. We agree and reverse the adjudication. Pursuant to Section 924.34, Florida Statutes (1979), we conclude the evidence showed appellant was guilty of trespass of a conveyance under Section 810.08(1), Florida Statutes, which was a necessarily lesser included offense of the crime charged. The matter is remanded to the trial court with instructions to enter judgment accordingly.

REVERSED AND REMANDED.

BERANEK, HERSEY and HURLEY, JJ., concur.


author: ANSTEAD, Judge.

text:
    In the Interest of S. R. P., a child.
    No. 80-287.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant:
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

The appellant, a juvenile, claims error by the trial court in refusing to accept her plea of guilty to delinquency charges and in allowing the state to voluntarily dismiss those charges so that the state could proceed against her by filing an information in the criminal court. Finding no authority for the filing of an interlocutory appeal under these circumstances, we have nevertheless determined that we will treat the notice as a petition for writ of certiorari.

After the state filed juvenile charges the prosecutor advised the trial court that he intended to file a nolle prosse of the juvenile charges and proceed against the appellant as an adult by filing an information in the criminal court. In an attempt to avoid the state’s action, the appellant asked the trial court to accept a guilty plea before the state could file a nolle prosse. The trial court refused. We find no error.

The decision to file a nolle prosse is essentially vested solely in the discretion of the state. State v. Braden, 375 So.2d 49 (Fla.2d DCA 1979). In addition, under the provisions of Section 39.04(2)(e)(4), Florida Statutes (1979), a state attorney is vested with discretionary authority to file an information and seek adult sanctions against a juvenile on charges that may also constitute the basis for a juvenile petition. The trial court here has done nothing more than recognize the discretionary authority of the state as outlined above. We do not believe the case of Reyes v. Kelly, 224 So.2d 303 (Fla.1969), relied on by appellant, is to the contrary. That case held that a trial court may not arbitrarily refuse to accept a guilty plea. We find no such arbitrary refusal here.

The petition for writ of certiorari is denied.

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


author: DOWNEY, Judge. ANSTEAD, J.,

text:
    BOCA RATON LAND DEVELOPMENT, INC., Appellant, v. John B. SPARLING and George H. Sparling, III, Appellees.
    No. 80-1050.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Joel D. Kenwood of Baskin & Sears, Palm Beach, for appellant.
    Robert A. Eisen of Reynolds & March-banks, Boca Raton, for appellees.
   DOWNEY, Judge.

Boca Raton Land Development, Inc. (hereafter the corporation) began this proceeding as an interlocutory appeal from an order of the trial court discharging a lis pendens. John B. Sparling and George H. Sparling, III, filed a motion to strike the interlocutory appeal. This court denied the motion, but ordered that the matter proceed as a petition for writ of certiorari. Cooper Village Inc. v. Moretti, 383 So.2d 705 (Fla. 4th DCA 1980).

The corporation filed an action in the circuit court to quiet its title to certain described real property. The complaint describes the manner in which the corporation asserts it deraigned title to said property and claims that it is the lawful owner thereof. The complaint goes on to allege that Lawrence W. Urbanek, purporting to act as the corporation’s president, fraudulently executed a deed conveying the property to himself; however, Urbanek never was the president of the corporation, and the conveyance was without authority or consideration. Finally, the complaint alleges that the Sparlings were mere nominees for Ur-banek and that the Sparlings knew, or should have known, of the fraud perpetrated by Urbanek.

Upon filing the complaint, the corporation also filed a notice of lis pendens. Several months after the suit was commenced the Sparlings filed a motion to discharge the notice of lis pendens. After a hearing on said motion at which George Sparling, III, testified .the court entered an order discharging the lis pendens. These proceedings followed.

The authority governing the filing and discharge of a lis pendens is Section 48.23, Florida Statutes (1979). The statute provides essentially that no action in any state or federal court operates as a lis pen-dens until a notice of the action is recorded in the office of the clerk of the circuit court of the county wherein the property is located. The filing of an appropriate notice constitutes a bar to the enforcement against the property of any liens and levies unrecorded at the time of the filing of the notice of lis pendens unless a lienholder intervenes in the cause. A notice of lis pendens is effective for a period of one year “unless the relief sought is disclosed by the initial pleading to be founded on a duly recorded instrument, or on a mechanic’s lien claimed against the property involved except when the court extends the time on reasonable notice and for good cause shown.” Section 48.23(2), Florida Statutes (1979). When the initial pleading does not show the action was founded on a duly recorded instrument, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.

The corporation contends that the initial pleading in this cause shows the action is founded on duly recorded instrument, the deed purportedly conveying the property in question to Urbanek. Furthermore, the corporation takes the position that a proper interpretation of the statute compels the following conclusion: when the initial pleading shows an action is founded upon a duly recorded instrument a plaintiff is entitled to the maintenance of a lis pen-dens as a matter of right; thus, the provision authorizing the court to control and discharge the lis pendens as the court may grant and dissolve an injunction never comes into play.

In our judgment, the corporation’s contentions are sound. We therefore conclude that the trial judge erred in discharging the lis pendens. Whether the corporation will be successful in its suit is not the test to determine the validity of the lis pendens. Under the circumstances of the case, the corporation was entitled to maintain the lis pendens, and the court was powerless to control or discharge it. Chapman v. L & N Grove, Inc., 244 So.2d 154 (Fla. 2nd DCA 1971).

Accordingly, we grant the petition for writ of certiorari, quash the order under review, and remand the cause to the trial court with directions to reinstate the notice of lis pendens.

LETTS, C. J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, J.,

dissenting:

I cannot agree that the petitioners’ action was predicated on a recorded instrument. Rather, the action was predicated on a claim of fraud and sought to void the deed conveying the property in question to Urba-nek. This is quite the contrary of predicating an action on that deed. Under these circumstances I believe the trial court was authorized to treat this matter as he would a claim for injunctive relief, and finding no abuse of discretion in the trial court’s action, I would affirm the order discharging the lis pendens. See Beefy King International, Inc. v. Veigle, 464 F.2d 1102 (5th Cir. 1972).


text:
    GORY ASSOCIATED INDUSTRIES, INC., a corporation, Appellant, v. Donald GRIFFIN, Frank Wallin, and other persons and firms in concert with them, Appellees.
    No. 80-2211.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.

      William H. Benson and Paul M. May of Britton, Cohen, Kaufman, Benson & Schantz, Fort Lauderdale, for appellant.
    Joel L. Kirschbaum of Esler & Kirsch-baum, P. A., Fort Lauderdale, for appellee, Griffin.
   BERANEK, Judge.

This is an interlocutory appeal from an order of December 9, 1980, which denied plaintiff/appellant’s request for a temporary injunction. The hearing occurred just prior to recent amendments to Florida Rule of Civil Procedure 1.610 governing temporary restraining orders. We conclude the trial court erred in excluding certain evidence offered by plaintiff and further that. the denial of the requested temporary injunction constituted an abuse of discretion. The order below is reversed and the matter remanded with instructions.

The defendant/appellee signed an employment contract with Elcor Corporation on March 1, 1978, which contained a valid one-year covenant not to compete applicable to both Elcor Corporation and its affiliates. Immediately thereafter, appellee was transferred to the plaintiff corporation, Gory Associated Industries, Inc. Appellee served as an officer of Gory until his termination on November 6, 1980. The Gory corporation filed a sworn complaint on November 10, 1980, alleging Gory was a wholly owned subsidiary of Elcor. The complaint alleged appellant had substantially breached the covenant not to compete and that such breach was continuing. A temporary injunction was sought and denied by order of the trial court after a full eviden-tiary hearing. The president and another corporate officer were called to testify as to the “affiliate” status of the two corporations. This testimony was excluded based upon the “best evidence” rule. In so ruling, the court erred. There was no issue as to the content of any document and indeed appellee did not directly deny the affiliate status of the corporations in his answer to the complaint. Appellee, himself a corporate officer, merely answered that he was without knowledge of the intercorporate relationship while his own testimony at the hearing clearly indicated he signed the contract with Elcor and was immediately “transferred” to Gory.

The contract provided in relevant part:

A. “COMPANY” means Elcor Corporation and its AFFILIATES.
B. “AFFILIATE” means any corporation or joint venture that (a) is owned or controlled by, (b) owns or controls, or. (c) is owned or controlled by the corporation owning or controlling, Elcor Corporation. For the purpose of this definition, ownership, directly or indirectly, of 50% of the capital stock having the right to vote for directors of the corporation or 50% of the equity interest of a joint venture shall constitute ownership or control thereof.

The court erred in excluding the testimony of the appellant’s witnesses based on a “best evidence” objection. In re Mobilift Equipment of Florida, Inc., 415 F.2d 841 (5th Cir. 1969); Hubbell v. State, 312 So.2d 470 (Fla. 4th DCA 1975). However, even without testimony, we conclude that all the unrebutted evidence clearly showed the two corporations were affiliates within the meaning of the contractual provision.

We have reviewed all the pleadings and testimony presented and conclude there was more than adequate evidence to necessitate issuance of the requested temporary injunction. Contemporary Interiors, Inc. v. Four Marks, Inc., 384 So.2d 734 (Fla. 4th DCA 1980). Appellee was actively engaged in organizing a competing business and he testified he would open the new business soon if not enjoined from doing so. Denial of the injunction under these circumstances was an abuse of discretion.

The order below is reversed and the matter remanded for the issuance of a temporary injunction and such further appropriate orders as may be necessary regarding bond and related matters.

REVERSED AND REMANDED.

HERSEY and HURLEY, JJ., concur.


text:
    DON GREENE PROVISIONS, INC., and American Mutual Insurance Company, Appellants, v. John West McKINSEY and The Division of Workers’ Compensation, Appellees.
    No. WW-362.
    District Court of Appeal of Florida, First District.
    May 13, 1981.
    Donald F. Harrington, P. A., Miami, for appellants.
    Ira Pozen, Miami, for appellees.
   PER CURIAM.

Appellant was alleged to have been injured in the course of his employment. He obtained an attorney but then disappeared. His attorney informed the carrier that his client could not be found. After several attempts to proceed, the deputy commissioner finally determined that claimant did in fact have a compensable injury and that twenty-one days having expired since the claim, claimant’s attorney was entitled to a $300.00 fee pursuant to Section 440.34(1), Florida Statutes.

Employer/carrier urges that there is no basis for an attorney’s fee in that Section 440.34, Florida Statutes (Supp.1978), only provides for fees when a claim has been successfully prosecuted and an award of compensation has been made. We agree and reverse with directions to vacate and set aside the attorney’s fee award.

REVERSED.

SHIVERS and WENTWORTH, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


author: SHAW, Judge.

text:
    FLORIDA POWER CORPORATION, a Florida Corporation, Appellant, v. SOUTHEASTERN REALTY AND INVESTMENT PROPERTIES, INC., Appellees.
    No. YY-131.
    District Court of Appeal of Florida, First District.
    May 13, 1981.
    Gayle Smith Swedmark of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellant.
    Robert D. Mendelson of Gardner, Shelfer, Mendelson, Duggar & Thompson, Tallahassee, for appellees.
   SHAW, Judge.

The appellant corporation (Florida Power), decided to sell a large parcel of real estate located in Leon County, Florida. The job of marketing the property was delegated to the corporation’s real estate department which is under the direction of T. C. (Bud) Weaver. Pursuant to instructions from the corporation, Ron Solanes, property manager for Florida Power, placed an advertisement in the Wall Street Journal giving notice of the corporation’s desire to sell. Michael Krebsbach, a real estate salesman for Southeastern Realty and Investment Properties, Inc. (Southeastern), contacted Solanes and was furnished, by letter, additional information relative to the property. Solanes’ letter stated, inter alia, that the asking price was $1100 per acre, that a number of prospects would be contacted throughout the country and that the letter should not be construed as an exclusive listing to Krebsbach’s company or as a commitment to sell to any one individual or corporation. Upon receipt of the letter, Krebsbach brought the information to the attention of Bruce Mclver, the president of Southeastern, who in turn contacted So-lanes for permission to show the property to prospective purchasers. It was agreed that in addition to the $1100 per acre asking price, Mclver could add a 10% real estate commission. Mclver showed the property to prospective purchasers and relayed their interest to Solanes. During a telephone conversation between Mclver and Solanes the question of owner financing arose and the prospective purchasers had their attorney draft an option contract and submit it along with a $50,000 binder made payable to Florida Power. On December 7, 1979, Mclver, Solanes, Weaver and Blair Clark, an attorney for Florida Power, met and agreed that the option contract was not acceptable, but that the cash offer was firm. It was also agreed that Florida Power would retain the $50,000 binder check until an option to purchase or a contract for sale and purchase of 1,308 acres more or less on Lake Talquin was fully executed by Florida Power as optionor or seller and by Paul E. Williams and Fred G. Shelfer as optionees or buyers. Mclver was informed that a contract acceptable to Florida Power would have to be prepared. The meeting was concluded with the understanding that Florida Power would draft such a contract. On December 20, 1979, Mclver called So-lanes for a status report and was informed that the property had been taken off the market and was no longer for sale.

Southeastern filed an action to recover on a nonexclusive, oral brokerage contract to pay -a real estate commission. The complaint alleged that Southeastern produced purchasers ready, willing and able to purchase upon Florida’s Power terms and that Southeastern was informed by Florida Power that it was declining to sell the property. An answer and affirmative defenses was filed in which it was alleged that the offer presented to Florida Power by Southeastern was substantially different from the terms suggested by Florida Power as being acceptable; that Southeastern offered an option agreement and not a purchase agreement; that Southeastern’s efforts constituted a mere offer which defendant had a right to reject without being liable for a commission; that the property manager, Solanes, was not authorized to enter into a brokerage agreement with Southeastern; that no brokerage agreement would be binding on the corporation unless authorized by appropriate officers; that the alleged contract was unilateral in nature; and that Florida Power withdrew its solicitation of offer before Southeastern performed.

We agree with appellant that the trial court erred in granting summary judgment on behalf of Southeastern where, as in this instance, the pleadings and record reflect conflicting issues of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Hopkins v. Gibson Furniture, Inc., 312 So.2d 499 (Fla. 2d DCA 1975); Jerry Norris, Inc. v. Ackel, 311 So.2d 712 (Fla. 4th DCA 1975); Fontainebleau Hotel Corp. v. Southern Florida Hotel and Motel Association, 294 So.2d 390 (Fla. 3d DCA 1974). Unresolved issues exist relative to the extent of Solanes’ authority to bind Florida Power, the nature and extent of Southeastern’s involvement, and whether Florida Power, by taking the property off the market, defeated an otherwise valid sales agreement.

In light of such unresolved genuine issues of material fact, we reverse the order and remand the cause to the trial judge for further proceedings.

MILLS, C. J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


author: PEARSON, DANIEL S., Judge.

text:
    WEBB GENERAL CONTRACTING, INC., Appellant, v. PDM HYDROSTORAGE, INC. and Federal Insurance Company, Appellee.
    No. 81-618.
    District Court of Appeal of Florida, Third District.
    May 13, 1981.

      Jansen & DeGance and Joseph DeGance, Fort Lauderdale, for appellant.
    Anderson & Moss and Karen A. Gievers, Miami, for appellee.
    Before HENDRY, BASKIN and PEARSON, DANIEL S., JJ.
   ON MOTION TO DISMISS CROSS-APPEAL

PEARSON, DANIEL S., Judge.

Webb General Contracting, Inc., PDM Hydrostorage, Inc. and Federal Insurance Company were co-defendants in a suit brought against them by Benson Electric, Inc. Webb cross-claimed against PDM and Federal alleging breach of contract; PDM and Federal cross-claimed against Webb alleging Webb’s agreement to indemnify them for legal services rendered and costs incurred in defending against Benson’s suit. On February 25, 1981, the trial court entered a final judgment in favor of Webb pursuant to a jury verdict on the cross-claim against PDM and Federal. On the same day, the trial court entered a final judgment in favor of PDM and Federal against Webb on their indemnity cross-claim.

On March 26, 1981, Webb took a timely appeal to this court from the judgment entered against it. Within ten days thereafter, see Fla.R.App.P. 9.110(g), but beyond the jurisdictional thirty days allowed for filing a direct appeal from the judgment entered against it, see Fla.R.App.P. 9.110(b), PDM and Federal filed a timely notice of cross-appeal seeking review of the separate judgment entered against them. Webb has moved to dismiss this cross-appeal.

We grant Webb’s motion and dismiss PDM and Federal’s cross-appeal. The rule allowing for a cross-appeal contemplates an appeal from the same judgment from which the original appeal is taken. Wolfe v. City of Miami, 114 Fla. 238, 154 So. 196 (1934); Brown v. Vancleave, 86 Ky. 381, 6 S.W. 25 (1887). See also 4 Am.Jur.2d, Appeal and Error § 178 (1962). The function of a cross-appeal is to call into question error in the judgment appealed, which, although substantially favorable to the appel-lee, does not completely accord the relief to which the appellee believes itself entitled. It is not the function of a cross-appeal to seek review of a distinct and separate judgment, albeit rendered in the same case below, favorable to the appellant. Accordingly, in order for PDM and Federal to appeal the February 25, 1981, judgment entered against them, it was incumbent upon them to file a notice appealing that judgment within thirty days from its rendition. Even assuming, arguendo, that PDM and Federal could have effectively appealed this judgment through a “notice of cross-appeal,” see, e. g., Brown v. Winn-Dixie Stores, Inc., 267 So.2d 78 (Fla.1972); Hollimon v. State, 232 So.2d 394 (Fla.1970), such a notice would have had to be timely filed. The cross-appeal taken by PDM Hydrostorage, Inc. and Federal Insurance Company is

Dismissed.


author: CAMPBELL, Judge.

text:
    STATE of Florida, Appellant, v. Gerald James BUFFETT, Appellee.
    No. 80-1921.
    District Court of Appeal of Florida, Second District.
    May 13, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellee.
   CAMPBELL, Judge.

This is an appeal from the granting of the defendant-appellee’s motion to dismiss the state’s information and to discharge him for the state’s failure to bring him to trial within the terms of the speedy trial rule. Fla.R.Crim.P. 3.190. Appellee was charged by direct information on April 9, 1980, with grand theft of a motor vehicle in violation of section 812.014(2)(b), Florida Statutes (1979). On April 18, May 21, June 10, and July 22, 1980, he requested and was granted continuances for the purpose of preparing for trial, each time waiving speedy trial to the next agreed upon trial date. On July 22, the trial date was set for October 14, 1980. On October 14, the case was continued until October 15. On October 15, before trial began, appellee filed a motion to dismiss the information, alleging that it failed to include the specific word “knowingly” in charging him with obtaining or using, or endeavoring to obtain or use the alleged motor vehicle. Appellee further moved to discharge on speedy trial grounds, alleging that the failure to allege “knowingly” in the information was a fundamental defect and, therefore, the trial court had been without jurisdiction and the previous speedy trial waivers were null and void, relying on Waters v. State, 354 So.2d 1277 (Fla.2d DCA 1978), and Radford v. State, 360 So.2d 1303 (Fla.2d DCA 1978).

Thereafter, with apparent caution, appellant moved to amend the information to add the word “knowingly.” The court denied the motion to amend and granted ap-pellee’s motion to dismiss and discharge, concurring with appellee’s reliance on Waters and Radford. That reliance by the appellee and the trial court was misplaced. In Waters, the defendant pled guilty in circuit court to an information charging him with receiving stolen property. The information did not allege the value of the property. When the factual basis for accepting the guilty plea was outlined, no motion was made of value and no evidence of value was before the court. After being placed on probation and subsequently found guilty for violation of probation, the defendant appealed, alleging lack of subject matter jurisdiction in the circuit court for failure to allege value. This court vacated the order placing the defendant on probation and the subsequent order modifying that probation, holding that since no value was alleged the information only charged a misdemeanor and the circuit court did not have jurisdiction, thereby rendering its proceedings void.

Radford was also an appeal following a conviction where this court followed the Waters reasoning in considering an information which failed to allege the defendant “knowingly” committed a battery upon a law enforcement officer. The necessity of the use of the word “knowingly” there was predicated on the fact that the defendant must “know” that the person upon whom he commits a battery is a law enforcement officer in order for the offense to be a felony. Otherwise, a simple battery is a misdemeanor. Radford is further removed factually from our case in that the information there concluded with the reference that the crime charged was “in violation of Florida Statute 784.03” which is the misdemean- or statute.

Here, the caption of the information informs that it is for “Grand Theft In the Second Degree F.S. 812.014(2)(b).” The body of the information charges that the defendant “did unlawfully obtain or use, or endeavor to obtain or use” the alleged vehicle “and in so doing intended either to deprive” the owner of the vehicle or appropriate it to the use of appellee or some other person not entitled to it “contrary to the form of the Statute.” Section 812.014 provides that a person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or use, the property of another with intent to deprive the owner of the property or to appropriate it to the defendant or any other person not entitled to the property. It is difficult to see that the addition of the word “knowingly” to the requirement of “with intent” adds anything to the statute. Putting the two together, “knowingly, with intent” seems to be a mere repetition. We, therefore, conclude that the word “knowingly,” though included in the statute, is not a necessary allegation in the information before us in light of the other wording of the information. Our conclusion is supported by Williams v. State, 370 So.2d 1143 (Fla.1979), and State v. Allen, 362 So.2d 10 (Fla.1978). In construing the predecessor statute which did not include the term “knowingly,” the Williams court determined that the use of the term “endeavors” was a sufficiently specific averment of an overt act constituting criminal intent. If it is a sufficient averment for that purpose, it seems to us to naturally follow that it is sufficient to imply “knowledge.” In State v. Allen, the court also considered section 812.014 as it existed before the word “knowingly” was added. A predecessor larceny statute had required commission of the offense “with unlawful intent.” In the statute before the court in State v. Allen, the word “unlawful” had been deleted. The court held that deletion of the term “unlawful” did not have the effect of eliminating the element of specific criminal intent, which to us necessarily includes the element of knowledge. The court in State v. Allen seemed to recognize this by again construing the term “endeavors” as meaning “an overt act manifesting criminal intent, rather than merely the formulation of a mental intent.” 362 So.2d at 12.

Even if, contrary to our opinion, the word “knowingly” was necessary to the information, we feel the trial judge was in error in refusing the appellant the right to amend prior to the commencement of the trial. Lackos v. State, 326 So.2d 220 (Fla.2d DCA 1976), Tobler v. Beckett, 297 So.2d 59 (Fla.2d DCA 1974), Law v. State, 292 So.2d 596 (Fla.2d DCA 1974).

We, therefore, reverse and remand for treatment consistent herewith.

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