author: MILLS, Associate Judge.

text:
    Bill SNEAD, a/k/a Bill Sneed, Appellant, v. STATE of Florida, Appellee.
    Nos. HH-487, NT 1-3.
    District Court of Appeal of Florida, Fifth District.
    June 28, 1982.
    Rehearing Denied Sept. 7, 1982.

      Michael J. Minerva, Public Defender, Louis G. Carres, Asst. Public Defender, and Stephen Lindsey Gorman, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Carolyn M. Snurkowski, and David P. Gauldin, Asst. Attys. Gen., for appellee.
   ON MOTION FOR REHEARING GRANTED

MILLS, Associate Judge.

This case first came here on interlocutory appeal, raising the issue, when did speedy trial time begin to run. We held the time commenced to run on 16 September 1975. Snead v. State, 346 So.2d 546 (Fla. 1st DCA 1976).

Following Snead’s conviction for first degree murder and sentence to life imprisonment, the case returned to us on full appeal. We reversed the trial court because the record furnished us at that time showed that Snead should have been discharged because speedy trial time had run before his first trial commenced. Snead v. State, 373 So.2d 41 (Fla. 1st DCA 1979), withdrawn from publication, rehearing pending.

The State filed a motion for rehearing raising issues and presenting evidence which were not supported by the record filed with us. This motion was accompanied by a motion to supplement the record. The issues and evidence were of such a nature that we were compelled to relinquish jurisdiction and remand this case to the trial court with instructions to determine at an evidentiary hearing whether Snead received a timely trial or whether he waived the speedy trial rule.

Following the evidentiary hearing, the trial court correctly concluded that Snead received a timely trial. We have not considered this ruling, however, because the trial court located and had transcribed the pretrial proceedings held before it resulting in its denial of Snead’s motion for discharge. These proceedings were not included in the initial record, thus, were not considered by us in arriving at our initial opinion. Having the entire record before us, we vacate our opinion of March 1979 and affirm the trial court’s refusal to discharge Snead.

The complete record now before us clearly shows that Snead agreed that the speedy trial time be tolled from 6 December 1975 to 19 January 1976. It reflects also that the trial was continued at Snead’s request from 19 January 1976 to 14 April 1977, during the pendency of certiorari proceedings instituted by Snead in the Supreme Court, thus, tolling the speedy trial time.

The speedy trial time began to run on 16 September 1975 when Snead was indicted. It was tolled from 6 December 1975 to 14 April 1977 when the Supreme Court issued its mandate in the certiorari proceeding. Speedy trial time began to run again on 14 April 1977 and ran until 11 July 1977 on which date Snead’s first trial commenced. The State, therefore, brought Snead to trial within 171 days or within the 180 day speedy trial limitation.

Although the State developed at the evi-dentiary hearing that Snead was actually imprisoned pursuant to a criminal judgment of guilt on 26 March 1975 and was serving a one-year sentence at the time he was indicted for this crime, we have not considered the State’s speedy trial time argument on this point. This issue was not initially presented to the trial court and the date the speedy trial time began was adjudicated by our decision in the first Snead case.

We must point out that the ultimate decision in this case would not have been delayed if Snead’s counsel had done their duty of presenting this Court with a record complete enough for it to consider the issues raised by the appeal or if the State’s counsel had done their duty by supplying the record which Snead’s counsel failed to do. The Appellate Rules require no less. Considerable time, money, and effort could have been saved by all concerned. Such dereliction of duty brings criticism of the Justice System and rightfully so. This can be avoided in many cases if counsel will merely comply with the Appellate Rules and be familiar with the record in their cases.

We have set aside our initial decision in this case because we were led into an erroneous decision by the failure of the parties to present a complete record. It would be unfair to reverse a trial court because the parties failed to bring up a complete record which would have shown that the trial court was correct. Our initial decision was based upon erroneous and misrepresented facts due to lack of a complete record which when received by us clearly shows the trial court properly denied Snead’s motion for discharge. See State v. Pierce, 370 So.2d 410 (Fla. 1st DCA 1979).

It was unnecessary that we address in our initial decision the other issues raised by Snead because we held that he should be discharged. Now it is necessary that we determine them. We affirm in each instance.

Snead contends the trial court erred in denying his motions to suppress his identification by witness Louise Hannah Tomlinson (Hannah) because of the influence of hypnotism in her identification.

The first trial of this case ended in a mistrial. Snead filed a motion to suppress prior to the mistrial which the trial court denied. Prior to the retrial of the case, Snead filed a similar motion to suppress. The record filed with us does not disclose that the trial court ruled on this motion.

At the retrial, the witness, Hannah, identified Snead without objection. On cross examination Snead developed that Hannah had undergone hypnosis prior to trial, however, Hannah testified that her identification was based on independent recollection before and after the hypnosis. The credibility of this witness was for the jury and the jury obviously believed her testimony.

Although Snead filed a motion to suppress prior to each trial and although the initial motion was denied, he was required to object to Hannah’s testimony when it was offered at trial. The filing of the motions and the denial of the initial motion are not tantamount to a proper and timely objection to the testimony at trial. Notwithstanding that the testimony may have been inadmissible, it is admissible unless timely objected to at trial. The failure of Snead to object to Hannah’s testimony identifying him amounts to a waiver of objection. Robertson v. State, 94 Fla. 770, 114 So. 534, 535 (1927).

Snead next contends the evidence was not sufficient to support his conviction, therefore, the trial court erred in denying his motions for judgment of acquittal.

The testimony of Hannah identifying him and the testimony of two fellow inmates that they heard his confession were not only sufficient but substantial evidence in support of the jury’s verdict of guilty. The trial court correctly denied the motions for judgment of acquittal.

Snead argues that the trial court erred in denying his motion to present evidence of the results of a psychological stress evaluation taken of him at the request of the Sheriff of St. Johns County.

Snead states that the sheriff agreed to drop the charges against him if he took the test and beat it. He advises that he beat the test. Snead admits the test results would be inadmissible absent a stipulation, however, he concludes there was an oral stipulation. This argument has no merit because the sheriff had no authority to stipulate and even if he had authority, it was not binding because it was not in writing. Rule 2.060(g), Florida Rules of Judicial Administration.

Snead makes an argument that the trial court erred in denying his motion to suppress two photographs taken of him on 15 March 1975 and a watch taken from him on 16 March 1975.

He has not preserved this issue for appeal. The trial court did not rule on this motion. Snead is required to obtain the trial court’s adverse ruling and present this Court with a record necessary to determine the error raised by him. State v. Anderson, 329 So.2d 424 (Fla. 3d DCA 1976). He did not do this. Nevertheless, the two photographs were not used at trial and the objection to the watch was a general objection which is insufficient.

Snead urges that the assistant state attorney who signed the indictment was without authority to sign the indictment because he had become a city commissioner at the same time he was an assistant state attorney. See Section 99.012(2), Florida Statutes (1975).

The authority of an assistant state attorney to sign an indictment may not be tested by an appeal. This must be done by quo warranto. Therefore, Snead has waived his right of review on this issue. Carey v. State, 349 So.2d 820 (Fla. 3d DCA 1977).

We affirm the judgment of the trial court.

McCORD, Associate Judge, and MELVIN, WOODROW M. (Retired), Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joe Allen CHAPMAN, Appellant, v. Bonnie Lou Brodie Chapman LAMM, Appellee.
    No. 79-1550.
    District Court of Appeal of Florida, Third District.
    June 28, 1982.
    Elizabeth S. Baker and Stephen Maher, Legal Services of Greater Miami, Inc., Miami, Carres, Gamble & Hamilton and Kathy Hamilton, Coral Gables, for appellant.
    Rubin & Friedman, Miami, Boyd & Smith and Joseph R. Boyd and W. Crit Smith, Tallahassee, Chriss Walker, Dept, of Health and Rehabilitative Services, Child Support Enforcement, Tallahassee, for appellee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on August 5, 1980 (388 So.2d 1048) reversing the order of the Circuit Court of Dade County, Florida, in the above styled appeal, and

WHEREAS, on review of this court’s judgment by notice of appeal, the Supreme Court of Florida (413 So.2d 749) by its opinion and judgment filed March 11, 1982 and mandate now lodged in this court affirmed the results of this court’s judgment, but, for the reasons expressed, the opinion is affirmed in part and disapproved in part.

NOW, THEREFORE, It is Ordered that the mandate of this court issued in this cause November 7, 1980 is withdrawn, the opinion and judgment of this court filed August 5, 1980 insofar as it is in conflict with or fails to conform to the views expressed in the said opinion and judgment of the Supreme Court of Florida aforesaid is withdrawn and vacated, and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The opinion and judgment of this court, except as withdrawn and vacated aforesaid, is adhered to. Costs allowed shall be taxed in the trial court (Rule 9.400 (a), Florida Rules of Appellate Procedure).


text:
    Anderson BECK, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2225.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Bennett H. Brummer, Public Defender and Meah Rothman Tell, Sp. Appointed Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Remanded for correction of sentence in accordance with Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981).

The judgment of conviction is AFFIRMED.


author: SCHWARTZ, Judge.

text:
    Vernal E. MALCOLM, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2298.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   SCHWARTZ, Judge.

Malcolm’s convictions for the sale and possession of marijuana are reversed for a new trial because the trial court erroneously admitted evidence of the defendant’s involvement in another drug investigation and a previous similarly unrelated sale at the premises where the one in question allegedly occurred. State v. Norris, 168 So.2d 541 (Fla.1964); Dillman v. State, 411 So.2d 964 (Fla. 3d DCA 1982), and cases cited; Beneby v. State, 354 So.2d 98 (Fla. 4th DCA 1978), cert. denied, 359 So.2d 1220 (Fla.1978); Roche v. State, 326 So.2d 448 (Fla.2d DCA 1976); see Williams v. State, 110 So.2d 654 (Fla.1959); Sec. 90.404(2), Fla. Stat. (1981).

There is no merit in the state’s position on appeal, which concedes error but claims that the issue was not preserved below. The record shows both that, prior to the taking of testimony, defense counsel timely moved to “strike” or exclude evidence of any criminal activity other than that charged in the information and that, at the end of the trial, he unsuccessfully moved for a mistrial on grounds which, while clumsily expressed, were sufficient, as the trial judge’s comments in denying the motion demonstrate, fairly to apprise the lower court of the Williams-rule violation which has been asserted on appeal. See, Williams v. State, 414 So.2d 509 (Fla. Case no. 58,704, opinion filed, May 13,1982). Finally, we cannot find that the error was harmless.

Reversed.

      . The motion was denied as premature on the stated basis that such evidence might become admissible if the Williams criteria were later satisfied. This ruling was clearly erroneous. Evidence of “collateral crimes” should be considered presumptively inadmissible and excluded unless the state can affirmatively establish its propriety. See Sec. 90.404(2)(b), Fla.Stat. (1981). In this case, it admittedly could not do so. The adoption of the contrary procedure, as below, results in the jury’s hearing the clearly prejudicial evidence in question, subject to its being later “stricken” with only an accompanying instruction — of legendary ineffectiveness— that it should be disregarded. However (if, as here, the contention is appropriately preserved), only a new trial serves to remedy the situation which has been thus created.
      The same observation applies to what occurred when three police officers testified below. In each case, the first reference to other offenses was met with an objection on Wil-I/ams-rule grounds; in each case, the court then reserved ruling; in each case, only after the offending testimony had been presented to the jury, the objection was sustained when, as was inevitable from the outset, the state failed to “connect it up.” It was wrong to proceed as if the court did not know what everyone in the courtroom must have realized — that the other crimes evidence could not have been permissible in this trial. Moreover, although we need not directly decide the point, since the practical effect of reserving ruling was under these circumstances the same as overruling the objections, it may be that reversible error was committed (and simultaneously preserved for appellate purposes) simply because the objections were not, as they should have been, immediately sustained.

      . Apparently in order to convince us to the contrary, the state’s brief in this case contains the following impertinent statement:
      Immediately prior to trial, defense counsel indicated the defendant’s willingness to plead guilty to the three pending charges. (T. 4-7). When the court indicated it was only prepared to accept the plea to the single case before it, the plea offer was withdrawn (T. 8) and the trial commenced. (T. 9).
      We consider this reference both as an attempt improperly to influence the court and, in its unstated assumption that it might have that effect, as an insult either to our intelligence or our integrity. We have a right to and do expect more from any counsel who appears before us, particularly one who represents the state of Florida.


author: NESBITT, Judge.

text:
    ORANGE MOTORS OF CORAL GABLES, INC., a Florida corporation, Appellant, v. RUEBEN H. DONNELLEY CORPORATION and Fritchman Associates, Inc., Appellees.
    No. 81-517.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.

      Shalle Stephen Fine, Miami, for appellant.
    Shutts & Bowen and Gregory P. Borgog-noni and Eric B. Meyers, Miami, for appel-lees.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   NESBITT, Judge.

The plaintiff, Orange Motors of Coral Gables, Inc. (Orange Motors), commenced an action against Rueben H. Donnelley Corporation for negligence in failing to print Orange Motor’s listing in the yellow pages of Southern Bell’s directory. In August of 1977, Orange Motors obtained leave of the court to join Fritchman Associates, Inc. (Fritchman), a Connecticut corporation, for its participation in the negligent act. When Fritchman failed to timely file an answer or other responsive pleading to the amended complaint, Orange Motors procured a default judgment as to liability pursuant to Florida Rule of Civil Procedure 1.500.

Fritchman filed a motion for relief from the default judgment, pursuant to Florida Rules of Civil Procedure 1.500(d) and 1.540(b)(4), upon the grounds that: (a) service of process was invalid in that plaintiff, in attempting to utilize the method of substituted service, failed to file the requisite affidavit of compliance in accordance with Section 48.161, Florida Statutes (1977); and (b) insufficient facts were alleged in the complaint to justify the use of substituted service over a nonresident doing business in Florida. § 48.181, Fla.Stat. (1977).

Ultimately, the trial court vacated the default, quashed service of process, and dismissed the complaint for failure to allege sufficient facts to justify personal jurisdiction. By agreed order, Orange Motors was given leave to file an amended complaint and did so.

Orange Motor’s first argument on appeal is the impropriety of the court’s order vacating the default. We entirely agree with the trial court’s determination that the default judgment was void. In Rever v. Lapidus, 151 So.2d 61 (Fla. 3d DCA 1963), this court held that the affidavit required by Section 47.30, Florida Statutes (1963) (the predecessor to Section 48.161, supra), is jurisdictional and completion of service without it is not sufficient. Secondly, the plaintiff’s bare allegation that the defendant was “doing business in Florida” is insufficient to render the defendant amenable to substituted service of process under Section 48.181, supra. See Connell v. Ott Research & Development, Inc., 377 So.2d 219 (Fla. 3d DCA 1979); Bradford White Corp. v. Aetna Insurance Company, 372 So.2d 994 (Fla. 3d DCA 1979).

We reject appellant’s argument that the defendant’s motion for a continuance filed after the motion to set aside the default constituted a waiver of defendant’s claim of lack of jurisdiction. While it is certainly true that a defendant may not make a general appearance and later repudiate it by attacking the court’s jurisdiction over him, where the defendant first challenges the court’s jurisdiction and then makes a general appearance, no waiver has occurred. White v. Nicholson, 386 So.2d 74 (Fla. 2d DCA 1980). Consequently, we affirm the order of the trial court which vacated the default judgment.

After the second amended complaint was filed by Orange Motors, Fritchman filed a motion to dismiss. The court granted the motion and dismissed the complaint, thus rendering the order final for purposes of appellate review. Gries Investment Company v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980).

Two distinct issues as to the amenability of the defendant to the jurisdiction of the court were raised in the defendant’s motion to dismiss. The first objection challenged the sufficiency of the service of process inasmuch as the complaint was mailed to the counsel for the defendant, but not to the defendant. Because plaintiff’s previous service of process was quashed, plaintiff was required to treat the second amended complaint as the original pleading and serve the defendant. Drake v. Scharlau, 353 So.2d 961, 965 (Fla. 2d DCA 1978). Failure to do so requires quashal of the service of process.

Defendant’s second contention in its motion to dismiss was that the plaintiff failed to allege sufficient facts to justify jurisdiction under the substituted service of process statute, Section 48.181, supra, or the long-arm statute, Section 48.193, Florida Statutes (1979). The proper method by which to raise such an issue is by motion to abate. Elmex Corporation v. Atlantic Federal Savings and Loan Association of Fort Lauderdale, 325 So.2d 58 (Fla. 4th DCA 1976).

The motion, in essence, must be treated as admitting all facts properly pleaded pertinent to the conduct and activities of the defendant in the forum state and constitutes an assertion that as a matter of law such facts are nevertheless legally insufficient to demonstrate the applicability of the long-arm statute.

325 So.2d at 61. Gauging the complaint by the law in effect at the time the complaint was filed, we would be compelled to agree with the trial court’s determination that the complaint was legally insufficient to allege jurisdiction under either the substituted service statute or the long-arm statute. Connell v. Ott Research & Development, Inc., supra. However, we find that the trial court’s dismissal without leave to amend was incorrect under the circumstances of this case. Amendments to pleadings should be freely allowed, see Fla.R. Civ.P. 1.190(a), until the privilege has been abused. While it has been held that three attempts to amend the complaint are enough, see Alvarez v. DeAguirre, 395 So.2d 213 (Fla. 3d DCA 1981), the plaintiff has amended his complaint as to this defendant only one time. We find there would be no prejudice at this early stage in the proceedings in allowing the plaintiff another opportunity to amend.

Our determination of this case would be complete at this point, but for Florida Rule of Civil Procedure 1.070(i), effective January 1,1981, under which the second amended complaint would sufficiently allege jurisdiction (see n. 1). In light of this rule, we see no reason for dismissing the second amended complaint, and causing the plaintiff to file the same pleading under the caption, third amended complaint.

Consequently, we find that while the trial judge was correct in dismissing the complaint under the then applicable law, we reverse the order dismissing the complaint. We affirm as to the quashal of service of process.

Affirmed in part, reversed in part.

      . At the time the complaint was filed, Florida Rule of Civil Procedure 1.070(i) was not yet in effect. That rule provides:
      When service of process is to be made under statutes authorizing service on nonresidents of Florida, it is sufficient to plead the basis for service in the language of the statute without pleading the facts supporting service.

      . We recognize that the Supreme Court, in Public Gas Company v. Weatherhead Company, 409 So.2d 1026 (Fla.1982), has held that a notice of appearance does not constitute a general appearance thereby waiving the defendant’s right to challenge the jurisdiction of the court. However, we distinguish that case from the present in that a motion for continuance at least requests temporal relief and is therefore more than a “neutral and innocuous piece of paper.”

      . Decisions concerning what constituted doing business under Section 48.181 should apply to Section 48.193(l)(a). See Trawick’s Florida Practice and Procedure § 8-16.1 (1981).

      . Of course, if leave to amend had been properly denied, the plaintiff would be unable to benefit from the new rule which became effective after the filing of the second amended complaint.


text:
    Mark Anthony HILBURN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-600.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Bennett H. Brummer, Public Defender and Juan Ramirez, Jr., Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and John F. Ro-benalt, Asst. Atty. Gen., for appellee.
    Before HENDRY, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

The appellant was adjudicated guilty of burglary pursuant to a jury verdict finding him guilty of such charge.

Appellant seeks reversal of his conviction and sentence on the grounds that: (1) the court erred in denying appellant’s motion for mistrial and for a Richardson hearing based on the State’s failure to disclose the name of a witness and produce physical evidence; and (2) the court erred in denying his motion for a new trial based on newly discovered evidence.

We have carefully reviewed the record and considered appellant’s points on appeal and have concluded that no reversible error has been demonstrated. Clark v. State, 379 So.2d 97 (Fla.1979), cert. denied, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981); Leeman v. State, 357 So.2d 703 (Fla.1978); Cooper v. State, 336 So.2d 1133 (Fla.1976).

The judgment and sentence appealed are affirmed.

Affirmed.


text:
    PUBLIC HEALTH TRUST OF DADE COUNTY, Florida, an agency and instrumentality of Dade County, Florida, which operates Jackson Memorial Hospital, Appellants, v. PRUDENTIAL INSURANCE COMPANY, Shirley J. Miller, Mil Air and Heat, Inc., Appellees.
    Nos. 81-720, 81-721.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.

      Hayt, Hayt & Landau and Alan M. Fisher, Kenneth E. Cohen, Miami, for appellants.
    Lane, Mitchell & Harris and C. Robert Murray, Jr., Miami, for appellees.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We reverse the final order granting summary judgment in favor of Prudential Insurance Company upon a holding that there did exist material issues of fact for jury consideration. Travelers Insurance Company v. Zimmerman, 309 So.2d 569 (Fla. 3d DCA 1975).

The affirmative defense of fraud is usually considered a jury question and is not ordinarily appropriate for summary judgment proceedings. Hermes v. Anton, 300 So.2d 46 (Fla. 3d DCA 1974); Automobile Sales, Inc. v. Federated Mutual Implement and Hardware Insurance Company, 256 So.2d 386 (Fla. 3d DCA 1972).

Reversed and remanded for further proceedings.


text:
    AMERICAN MOTORISTS INSURANCE COMPANY, Appellant, v. Shaughn C. BENNETT, Appellee.
    No. 81-818.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy, Daniels & Hicks, and Sam Daniels, Miami, for appellant.
    Anderson & Moss, Greene & Cooper, and Marc Cooper, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Rejecting each of the insurer’s points on appeal, we find no error in the trial court’s entry of summary judgment that the applicable uninsured motorist limits were $1,000,000, the amount of the underlying liability coverage, Travelers Ins. Co. v. Spencer, 397 So.2d 358 (Fla. 1st DCA 1981); Ellison v. Anderson, 74 So.2d 680 (Fla.1954); Inman v. Club on Sailboat Key, Inc., 342 So.2d 1069 (Fla. 3d DCA 1977); or its submission to the jury of the issue of whether the plaintiff was a resident of the household of his father, the named insured, and was thus an additional insured under the applicable policy. See General Guaranty Ins. Co. v. Broxsie, 239 So.2d 595 (Fla. 1st DCA 1970); State Farm Mutual Automobile Ins. Co. v. Elkins, 52 Cal.App.3d 534, 125 Cal.Rptr. 139 (1975); see generally, Puente v. Arroyo, 366 So.2d 857 (Fla. 3d DCA 1979), cert. denied, 376 So.2d 75 (Fla.1979), and cases cited.

Affirmed.


text:
    Epifanio CABRERA, Appellant, v. The STATE of Florida, Appellee.
    No. 81-981.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

State attorney may enter a nolle prosequi of a count in the information at any time before a defendant’s plea of guilty is accepted by the court. See Reyes v. Kelly, 224 So.2d 303 (Fla.1969). Appellant’s remaining contentions are without merit.

Affirmed.


text:
    George Claude DEMONTIGNY, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1081.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Max B. Kogen and Loren H. Cohen, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Spencer v. State, 133 So.2d 729 (Fla.1961); E. Y. v. State, 390 So.2d 776 (Fla. 3d DCA 1980); Smith v. State, 363 So.2d 21 (Fla. 3d DCA 1978); Zamora v. State, 361 So.2d 776 (Fla. 3d DCA 1978); Stunson v. State, 228 So.2d 294 (Fla. 3d DCA 1969).


text:
    FAR WEST BOTANICALS, INC., a Florida corporation, Appellant, v. Pieter RAAMS and Raams Botanicals, B. V., formerly Far West Botanicals Europe, B. V., a Netherlands corporation, Appellees.
    No. 81-1228.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.

      Rosenberg, Rosenberg, Reisman & Glass and James E. Glass, Miami, for appellant.
    Arky, Freed, Stearns, Watson & Greer and Bradford Swing, Miami, for appellees.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The parties, by appeal and cross-appeal, seek to overturn a final judgment entered after a non-jury trial. The judgment contains the following findings of fact:

“1. Far West is a Florida corporation engaged in the business of growing tropical plants in Central America for resale in the United States and Europe. Mr. Raams was formerly a resident of the Netherlands but now resides in Dade County, Florida. Mr. Raams formed and owns Far West ‘Europe’ which is now known as Raams Botanicals, B.Y.
“2. In 1976, Mr. Raams became an employee of Far West and continued as an employee of Far West until April, 1979. Far West complied with the terms of the employment agreement with Mr. Raams and during the entire course of his employment, and for sometime thereafter paid him an agreed weekly paycheck of either $500.00 or $1,000.00 and other employee benefits such as group insurance. Mr. Raams had been employed as the sales manager for Far West in Europe and prior to his termination he had continued to act as sales manager for Far West and had utilized Far West ‘Europe’ as a sales agent for the products of Far West and had collected accounts for and on behalf of Far West.
“3. During the course of his employment, Mr. Raams had control of all of the books and records and the accounts receivable and accounts payable of Far West pertaining to the sales of tropical plants by Far West in Europe. In terminating and winding up their affairs, Mr. Ritter of Far West met with Mr. Raams and his accountant to go over all of the accounts and thereafter Mr. Ritter and Mr. Raams met with an attorney in Holland who prepared a written agreement which was thereafter executed by all parties including Mr. Raams on his own behalf and on behalf of Far West ‘Europe’. “4. The signed agreement was predicated upon a schedule of accounts which had been prepared by Mr. Raams’ accountant. The schedule of accounts reflected that there was approximately Dfl. 1.266.700 ($633,350 U.S.) collected or to be collected by Mr. Raams and Far West ‘Europe’ and paid over to Far West. In the agreement, Mr. Raams and Far West ‘Europe’ acknowledged ‘for the sake of good order’ that as of March 27, 1979, Far West ‘Europe’ was indebted to Far West in ‘an amount of about Dfl. 1.000.00’ ($500,000 U.S.). The parties also acknowledged that Far West ‘Europe’ was to pay an indebtedness to other suppliers which again ‘for the sake of good order’ was ‘an amount of about Dfl. 38.000’ ($19,000 U.S.)
“5. After executing the agreement, Mr. Raams and Far West ‘Europe’ continued to collect the accounts receivable and in addition collected other invoices for sales of Far West products after March 31, 1979, and collected other monies which was [sic] to have been remitted to Far West. Total collections by Mr. Raams and Far West ‘Europe’ exceed Dfl. 900.-000 ($450,000 U.S.). In addition, Mr. Raams and Far West ‘Europe’ forgave the collection of other accounts so that the account debtors could credit monies to Mr. Raams and Far West ‘Europe’. Mr. Raams and Far West ‘Europe’ did not collect all of the accounts reflected on the schedule of accounts and certain accounts remain unpaid.
“6. Of the monies collected by Mr. Raams and Far West ‘Europe’, they only paid over to Far West a sum slightly in excess of Dfl. 3000,000 [sic] ($150,000 U.S.). From time-to-time, Far West called upon Mr. Raams to pay over the sums of money which he did not do and thereafter Far West commenced collecting certain of the accounts directly and also paid creditors who claimed against Far West.
“7. After taking into consideration the collections made by Mr. Raams, the credits he issued, the collections made by Far West and the sums of money paid to creditors of Far West, there remains due and owing to Far West from Mr. Raams and Far West ‘Europe’ the sum of $115,-600.00.”

The appellant points out that if, as the trial court ostensibly found, Raams collected in excess of $450,000 to be remitted to the appellant, and only paid over slightly in excess of $150,000, then the appellant should be entitled to a judgment for the difference, since the credits issued by Raams to account debtors were for the benefit of Raams, not Far West Botanicals, Inc., and the collections made by the appellant were distinct from and over and above moneys collected by Raams already due the appellant. On the other hand, the appellees argue that quite apart from this internal inconsistency, the predicate finding of the trial court respecting collections made by Raams does not in the first instance reflect a net amount due the appellant which is supported by the evidence, and that the figures found by the trial court in the record and in the final judgment bear no resemblance to accounting information and documents and other evidence before the court.

Two things are certain. The final judgment is incorrect; and it is not possible on the record before us to determine how the trial court arrived at the amount said to be due. The matter is even more confounded by the trial court’s subsequent order amending the final judgment, which in pertinent part reads:

“a. Taking the evidence in the light most favorable to the Defendant and using the figures supplied by the Defendant which have any credibility it is clear that the Defendant collected 876,648.70 Dfl of accounts receivable belonging to the Plaintiff; and either wire transferred, paid expenses, made property transfers or paid to suppliers the sum of 670,021.29 Dfl. There is no credible evidence that Defendant has any further set-offs to the amount collected. This leaves a deficit due Plaintiff of 206,627.45 Dfl or $103,-313.70.
“b. This Court’s Judgment of February 9, 1981, is hereby amended so that in place of the figure $115,600.00 wherever it appears in said Judgment there shall be inserted the figure $103,338.86.”

The figures contained in this order are nowhere to be found in the record, conflict with figures elsewhere “found,” and, finally, are arrived at by “taking the evidence in the light most favorable to [Raams],” which, we need hardly say, is not the appropriate standard for viewing evidence in the context of fact-finding.

We cannot simplistically conclude, as appellant would have us do, that the trial court merely credited instead of debited Raams with certain ascertainable amounts, and we need only reverse the credits to solve the problem. If, indeed, this was the error of the trial court, it may upon our remand correct the judgment. But if, as we believe the case to be, and as the trial court apparently believed, the complex financial transactions between the parties require a more complete development with the aid of an an accountant, then the trial court should order that that be done and receive such further evidence as is necessary, or order the case retried from the outset.

Reversed and remanded.

      . The appellant contends this agreement was an account stated. The trial court did not find one to exist, and the agreement lacks the required certainty (e.g., “for the sake of good order”) as to the object or extent of the obligation so as to make an account stated. See Gendzier v. Bielecki, 97 So.2d 604 (Fla.1957). More importantly, even if Raams acknowledged owing about $500,000 at that time, the issue here is how much of that was paid thereafter in one form or another to Far West Botan-icals, Inc.

      . At the close of the evidence, the trial court stated:
      “THE COURT: I should have followed my instincts, gentlemen. My instincts said that this matter should have been tried before a certified public accountant so he could take an accounting because that is all this Court really ordered to be done, have an accounting taken, an accounting between these parties and the business transactions between them as to who may owe money to whom. I could have set out the guidelines for that accounting had anybody wanted me to do that and the guidelines would have been strictly the business transactions between the parties.”


text:
    Earl GREENWELL, Appellant, v. Steve CUIFFO, Judy Ann Cuiffo, Stephen O. Cuiffo, Sr., Julie Cuiffo, Kimberly Investment Corp., Inc., a Florida corporation, Caeser’s Vineyard, Inc., a Florida corporation, Robert Gordon, S & B Purebred Farms, Inc., a Florida corporation and Jackie Weinberg, Appellees.
    No. 81-1295.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Hugh F. Quinn, Miami, for appellant.
    David M. Goldstein, North Miami, for ap-pellees.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

We reverse the dismissal of the cause for lack of prosecution because we find that the filing of interrogatories and a notice of hearing were sufficient record activity to justify denial of the defendant’s motion to dismiss. Thomas v. Personal Representative of Estate of DeLoach, 400 So.2d 204 (Fla. 1st DCA 1981); American Salvage and Jobbing Company, Inc. v. Salomon, 367 So.2d 716 (Fla. 3d DCA 1979).

Neither is there a finding in the order of dismissal that the plaintiff was willfully delaying prosecution of the matter so as to support dismissal under the inherent power of the court to control its docket. Latimore v. Matthews, 340 So.2d 1261, 1262 (Fla. 3d DCA 1976); Kenet v. Stein, 326 So.2d 36 (Fla. 3d DCA 1976).

Reversed and remanded.


text:
    Jose COLLADO, Appellant, v. C & C CATTLE COMPANY, INC., and Joseph L. Carlile, Appellee.
    No. 81-1536.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.

      Goldstein Professional Ass’n and Caron Balkany Goldstein, Miami, for appellant.
    No appearance for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

We reverse the order of the trial court granting defendant’s motion to dismiss for lack of prosecution pursuant to Fla.R.Civ.P. 1.420(e), since it affirmatively appears from this record that notice of taking of the defendant’s deposition was filed five days prior to the filing of the motion to dismiss. The computation of the time period is based on the one-year period prior to the filing of the motion to dismiss. American Salvage and Jobbing Company, Inc. v. Salomon, 367 So.2d 716 (Fla. 3d DCA 1979); Flack v. Kuhn, 277 So.2d 593 (Fla. 4th DCA 1973); see also Barnes v. Boss, 386 So.2d 812 (Fla. 3d DCA 1980).

Reversed.


text:
    Dennis O’CONNOR, Appellant, v. Mary Louise O’CONNOR, Appellee.
    No. 81-1695.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Dennis O’Connor, in pro. per.
    William A. Daniel, Jr., Miami, for appel-lee.

      Before BARKDULL and BASKIN, JJ., and PEARSON, TILLMAN, (Ret.), Assoeiate Judge.
   PER CURIAM.

Even though an original combined motion and notice of hearing may have been lost or misplaced, the evidence supports a finding that the appellant, did in fact, actually receive a copy of said motion and notice and therefore the trial court had jurisdiction to render the original order, finding the appellant in contempt. It also appears that at least as to three of the four items for which the appellant was found in contempt he had purged himself by compliance with the order prior to the matter recurring before the trial court on his motion for rehearing etc. and therefore the error urged as to these items is moot. Dehoff v. Imeson, 153 Fla. 553, 15 So.2d 258 (1943); Goethel v. First Properties International, Ltd., 363 So.2d 1117 (Fla. 3rd DCA 1978); Gulf Life Insurance Company v. Newell’s Incorporated, 226 So.2d 858 (Fla. 4th DCA 1969); In Re Estate of Lindsay, 207 So.2d 736 (Fla. 4th DCA 1968); 3 Fla. Jur.2d, Appellate Review § 287.

As to the fourth item, the requirement to pay certain dental bills of the children, no contempt enforcement was ever actually occasioned and none can be enforced in the future without a hearing before the trial court by the express wording of one of the orders under review.

Therefore, finding no error either in the entry of the original order of contempt, or the order on rehearing, we affirm.

Affirmed.

      . We have not overlooked Keezel v. State, 358 So.2d 247 (Fla. 4th DCA 1978) involving a criminal contempt, but, find the reasoning not persuasive in this civil contempt matter, wherein the appellant is an attorney.


text:
    Albert Ellis ROMERO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1725.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Nathaniel L. Barone, Jr., Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Appellant, 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.

Affirmed.


text:
    Franklin FIEDELHOLTZ and Audrey Fiedelholtz, Appellants, v. JUSTIN BUILDING CORPORATION, Appellee.
    No. 81-2493.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    David S. Wieder, Miami, for appellants.
    Sheldon R. Rosenthal, Miami, for appel-lee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Elison v. Goodman, 395 So.2d 1201 (Fla. 3d DCA 1981); K/F Development & Investment Corp. v. Williamson Crane & Dozer Corp., 367 So.2d 1078 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 350 (Fla.1979); see Dober v. Worrell, 401 So.2d 1322 (Fla.1981).


text:
    T. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2647.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

The finding of the trial court that T. M. was guilty of burglary and petty theft is reversed. There is no evidence in this record that the respondent participated in the burglary or ever had possession of the fruits thereof. G. C. v. State, 407 So.2d 639 (Fla. 3d DCA 1981); J. L. B. v. State, 396 So.2d 761 (Fla. 3d DCA 1981); D. M. v. State, 394 So.2d 520 (Fla. 3d DCA 1981); P. R. v. State, 389 So.2d 1078 (Fla. 3d DCA 1980).

Reversed and remanded with instruction to discharge.


text:
    Maryce L. PROUT, Appellant, v. Norman PROUT, Jr., Appellee.
    No. 82-264.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Joshua D. Bash, Hollywood, for appellant.
    Highsmith & Strauss and Philip E. Glat-zer, Miami, for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   NESBITT, Judge.

After a childless marriage of twenty-five years, the parties were divorced by final judgment entered on January 31, 1977, which judgment awarded the wife rehabilitative alimony in the amount of $100 per week for a period of five years. On November 19, 1981, the wife filed a supplemental complaint praying for a modification of alimony. She alleged a change in circumstances created by the recent onset of blindness caused by diabetes. The husband filed a motion to dismiss which was granted.

The husband attempts to support the order appealed from on the basis that the original final judgment contained a provision which stated:

[A]ny change of the parties’ circumstances will not be considered in view of the parties’ being married to one another for so great a length of time.

He argues that the wife’s failure to appeal this provision is a bar to her subsequent attempt to modify alimony. We disagree and reverse.

By the enactment of Section 61.14, Florida Statutes (1979), the Legislature has expressed the public policy of the state favoring a modification of alimony in accordance with the changed circumstances of the parties. See § 61.14(3), Fla.Stat. (1979). That policy is strong enough, that even in the absence of a reservation of jurisdiction, the circuit court, upon application, may modify its award of alimony. See Pujals v. Pujals, 414 So.2d 228 (Fla. 3d DCA 1982) and cases cited therein. In considering a similar problem, the Supreme Court, in Chastain v. Chastain, 73 So.2d 66, 68 (Fla.1954), stated:

There was no appeal from the final decree of divorce awarding alimony and the time for appeal has long since expired. The needs, abilities and faculties of the parties were settled in that final decree and are now res adjudicata, except that of modifying the decree as to alimony in accordance with the public policy of the State as it existed and as it is now declared to be by F.S. § 65.15, F.S.A. [now renumbered as 61.14]

Because of this significant public policy and its expression in the statute, we are compelled to reject the husband’s contention that the wife is estopped to claim a change of circumstances. It is well settled law that estoppel cannot operate to displace a statute or public policy. Montsdoca v. Highlands Bank & Trust Co., 85 Fla. 158, 95 So. 666 (1923); Corporation De Gestion Ste-Foy, Inc. v. Florida Power and Light Company, 385 So.2d 124 (Fla. 3d DCA 1980); 32 Fla.Jur.2d Judgments and Decrees § 97 (1981); 22 Fla.Jur.2d Estoppel and Waiver § 6 (1980). In the present case, to give effect to the husband’s contentions would be to ignore the express policy of this state.

For the foregoing reasons, the order dismissing the supplemental complaint for modification with prejudice is reversed with directions to reinstate for further proceedings.

Reversed and remanded with directions.


text:
    E. J. SALES & SERVICE, INC., a Florida corporation, Appellant, v. SOUTHEAST FIRST NATIONAL BANK OF MIAMI, an association organized under the laws of the United States, Appellee.
    No. 82-695.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Malone, Harrison & Beers, and James H. Harrison, Orlando, for appellant.
    Britton, Cohen, Kaufman & Schantz and Lincoln Diaz-Balart, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

Alleging that E. J. Sales & Service, Inc., a Florida corporation, had taken possession of a sum of money which, at the later-revoked request of a customer of the bank, had been mistakenly wired by Southeast First National Bank of Miami to an E. J. Sales account in Orlando, the bank sued E. J. Sales in the Dade County Circuit Court. Its two-count complaint to recover that amount was based on the alternative theories of money had and received and conversion, respectively. E. J. Sales now appeals from an order denying its motion to transfer venue to Orange County. We reverse.

Since E. J. Sales’ place of business is in Orange County, and it has no office whatever here, venue may properly be laid in Dade County under Sec. 47.051, Fla.Stat. (1979) only if this is “where the cause of action accrued.” The contrary is true. Under this provision, a cause of action is deemed to accrue “where the act creating the right to bring an action occurred.” Gaboury v. Flagler Hospital, Inc., 318 So.2d 642, 644 (Fla. 4th DCA 1975); see, Windsor v. Migliaccio, 399 So.2d 65 (Fla. 5th DCA 1981). Whether the theory asserted is that E. J. Sales had and received, see 7 C.J.S. Assumpsit, Action of, § 10 b (1980), or tor-tiously converted, Gaboury v. Flagler Hospital, Inc., supra; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Bank of Melbourne and Trust Co., 238 So.2d 665 (Fla. 4th DCA 1970), funds rightfully belonging to Southeast, it is clear that the act which gave the bank the right to get the money back was its acquisition by the defendant. See also, St. Laurent v. Resort Marketing Associates, Inc., 399 So.2d 362 (Fla. 2d DCA 1981); American International Food Corp. v. Lesko, 358 So.2d 250 (Fla. 4th DCA 1978). Since that took place in Orange County, that is where the claim “accrued” and where this action must therefore be maintained.

The bank relies on cases which hold that an action for breach of an agreement to make payment accrues where payment is due, that is, in the absence of a contrary provision, in the county where the payee resides. E.g., Engineered Storage Systems, Inc. v. National Partitions & Interiors, Inc., 415 So.2d 114 (Fla. 3d DCA Case no. 82—489, opinion filed, June 15, 1982) and cases cited; American Fidelity Fire Ins. Co. v. Allied General Contractors, Inc., 365 So.2d 442 (Fla. 3d DCA 1978). These authorities have no application to this situation in which the parties had no contractual relationship with each other at all and the defendant is alleged only to have failed to perform an implied duty to return funds to which it was allegedly not entitled. See American International Food Corp. v. Lesko, supra.

For these reasons, the order below is reversed with directions that the cause be transferred to Orange County.

Reversed.

      . Pursuant to Fla.R.App.P. 9.130(a)(3)(A).

      . Notwithstanding the trial judge’s misplaced reliance on Sec. 47.101, Fla.Stat. (1979), Section 47.051 alone controls the issues in this case. It provides:
      Actions against corporations. — Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located, [e.s.]


text:
    ELECTRIC INSURANCE COMPANY, Appellant, v. Kenneth VINCENT and Jean M. Vincent, Appellees.
    No. 82-828.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellant.
    Rentz & Haggard, Daniels & Hicks and Patrice A. Talisman, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. See F. L. Stitt & Co. v. Powell, 94 Fla. 550, 114 So. 375 (1927); Adams v. Adams, 376 So.2d 1204 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1109 (Fla.1980), and cases cited; Lumbermens Mutual Casualty Co. v. Quintana, 366 So.2d 529 (Fla. 3d DCA 1979); see also, Jockey Club, Inc. v. Bleemer, Levine & Associates Architects and Designers, Inc., 413 So.2d 433 (Fla. 3d DCA 1982).


text:
    Antonio TORROS and Alberto Torros, Appellants, v. STATE of Florida, Appellee.
    No. 82-138.
    District Court of Appeal of Florida, Second District.
    June 30, 1982.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellants Antonio and Alberto Torros challenge a special condition of their probation providing: “If found to be an illegal alien, you are to be deported to Cuba.” They correctly point out that deportation is a federal matter, see Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). The trial court thus had no authority to order their deportation, and the provision therefor must be stricken. The trial court may, however, recommend to the appropriate federal authorities that appellants be deported if the court deems it advisable.

Accordingly, the special condition that appellants be deported if found to be illegal aliens is stricken from the order placing them on probation. The order is otherwise affirmed.

HOBSON, Acting C. J., and BOARD-MAN and OTT, JJ., concur.


text:
    Robert Edward GLANTON, Appellant, v. STATE of Florida, Appellee.
    No. 81-710.
    District Court of Appeal of Florida, Second District.
    June 30, 1982.
    Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We withdraw our opinion of May 28,1982 and substitute the following in its stead:

Appellant, Robert Edward Glanton, was found guilty of attempted burglary of a structure and attempted grand theft. The trial court withheld adjudication of guilt and placed him on four years probation with credit for time served.

On appeal, appellant argues that his sentence is improper because it is a general sentence for two separate offenses. Dorfman v. State, 351 So.2d 954 (Fla.1977); Pearson v. State, 371 So.2d 569 (Fla. 4th DCA 1979). As does the state, so do we agree with appellant’s argument.

But subsequent to our prior opinion, this court has receded from an opinion holding that a conviction for the nonexistent crime of “attempted grand theft” could be valid. Jordan v. State, 416 So.2d 1161 (Fla. 2d DCA June 11, 1982). It is now clear that conviction for such a nonexistent crime is a nullity. Achin v. State, - So.2d -, Case No. 59,840 (Fla. Jan. 21, 1982).

Although this point was not raised below or argued on appeal, we think it only fair to apprise the trial court on remand that it may sentence appellant solely on a conviction of attempted burglary of a structure.

REVERSED and REMANDED.

GRIMES, A. C. J., and RYDER and DANAHY, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Juan ACEBO, Appellant, v. STATE of Florida, Appellee.
    No. 81-1173.
    District Court of Appeal of Florida, Second District.
    June 30, 1982.

      John H. Lipinski, Miami, and Raymond R. Pines, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Samuel Robert Mandelbaum, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Juan Acebo appeals a final judgment and sentence for conspiring to traffic in metha-qualone and for trafficking in methaqua-lone. He argues, inter alia, that the trial court erred in denying his motion to suppress evidence seized by authorities during warrantless searches of the trunk of a car in which he was a passenger and of a companion car stopped several minutes before. The State contends that he does not have “standing” to contest either search. The State is correct and therefore we affirm.

Fourth amendment rights are personal rights which may not be vicariously asserted. See, e.g., Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-25, 58 L.Ed.2d 387 (1978); Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973). Regardless of the apparent unconstitutionality of a search, the proponent of a motion to suppress has the burden of establishing that he had a legitimate expectation of privacy in the area searched. See Rakas, 439 U.S. at 130, n.1, 99 S.Ct. at 424, n.1; State v. Hutchinson, 404 So.2d 361, 365-66 (Fla. 2d DCA 1981).

Generally, an important consideration in deciding whether the proponent has carried his burden by establishing that he had a legitimate expectation of privacy in the area searched is whether he demonstrated an ownership interest or other lawful property interest in the area searched. See Rakas, 439 U.S. at 143-44, n.12, 99 S.Ct. at 430, n.12. The record does not show that Acebo had a lawful property interest in either car. Further, the record does not reveal that he had even a lawful property interest in the seized items. Nothing else in the record indicates that he had a legitimate expectation of privacy in the cars or seized items. Thus, his assertion that the searches violated his constitutional rights must fall. See Rakes.

Acebo’s other arguments on appeal are without merit.

AFFIRMED.

BOARDMAN and SCHOONOVER, JJ., concur.

      . Seized from the trunk of the car in which Acebo was a passenger were an aircraft-type radio, four aircraft strobe lights, four flashlights, and a .44 revolver. Seized from the other car were eight boxes of narcotics, a flight log, three weapons, two weapon clips, a weapon box, and a walkie-talkie radio.


author: RYDER, Judge.

text:
    Ronald G. GIBBS, Appellant, v. STATE of Florida, Appellee.
    No. 81-2394.
    District Court of Appeal of Florida, Second District.
    June 30, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert J. Krauss, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Upon review of the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error; therefore, the revocation of appellant’s probation is affirmed.

At the violation of probation hearing, the court orally sentenced the appellant to a period of imprisonment not to exceed three years. However, the written judgment and sentence fails to specify that appellant was sentenced to an indeterminate period of six months to three years imprisonment. See § 921.18, Florida Statutes (1981).

We REMAND for the purpose of conforming the written sentence with the court’s oral pronouncement at sentencing; otherwise, AFFIRMED. Appellant need not be present for this purpose.

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


text:
    Carl Edward BOREN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1234.
    District Court of Appeal of Florida, Fifth District.
    June 23, 1982.
    James B. Gibson, Public Defender, and Cynthia Karl Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

See Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982).

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