author: LARRY G. SMITH, Judge.

text:
    Rodney Lamar McCULLOUGH, Appellant, v. STATE of Florida, Appellee.
    No. UU-390.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1980.

      Michael J. Minerva, Public Defender, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

McCullough was tried for robbery and trafficking in stolen property, both offenses growing out of a “purse snatching” incident in which appellant was charged with being both the perpetrator of the offense itself, and with presenting to a bank and cashing a bank money order taken from the purse. He was convicted of trafficking in stolen property under Section 812.019, Florida Statutes (1979), and acquitted on the robbery charge. In this appeal by McCullough several points are urged, one of which-error in admission of Williams Rule evidence-we find sufficient for reversal.

Williams v. State, 110 So.2d 654 (Fla.1959), cert. den. 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86, states, at page 663:

[EJvidence of any facts relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion. This rule we hold applies to relevant similar fact evidence ... even though it points to the commission of another crime.

This rule has been codified in the Florida Evidence Code, Section 90.404(2) as follows:

(2) OTHER CRIMES, WRONGS, OR ACTS.-
(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

The rule requires, in this case, consideration of whether evidence of appellant’s commission of an earlier purse snatching offense was properly admissible as “relevant similar fact evidence” to prove that appellant was the same person who committed the instant offense.

Upon examination of the facts of both offenses, we find insufficient similarity between the earlier crime and the present one to warrant admissibility under the quoted rule. The victim here, Ms. Martin, an elderly white female, was looking for an apartment near the campus of Florida State University, at mid-day. She asked a black male for directions to an apartment manager’s office, and he responded that it was downstairs. Ms. Martin was uncertain concerning the directions given and began looking at names on the mailboxes. The black male then grabbed her purse and ran.

The “similar offense” evidence presented by the state related to a crime committed during the evening hours about a year and a half earlier, at a McDonald’s Restaurant, located approximately two blocks east of the Florida State University campus, and on the opposite side of the campus from the place where Ms. Martin’s purse was taken. The victim of the offense at McDonald’s was a young, white female who had gone there with a girlfriend. As the two were walking from the car to the restaurant their attention was directed to the robber, standing in the parking lot, who said something both women heard. When the victim’s companion went inside the restaurant, the robber approached the victim and asked her what time it was. As she reached for her watch, he asked for her purse, then pulled it away from her and ran.

We find no similarities in the time, place, circumstances or manner in which the two offenses were committed as would tend, in reason, to establish that if appellant committed the first offense at McDonald’s he probably or most likely committed the second at the apartment building. While it is true-that both victims were white, female, and both perpetrators were black, male, these similarities are of virtually no probative value in identifying appellant, who could not be recognized by Ms. Martin at the trial as the person who snatched her purse. That both victims selected by the perpetrators were female is no more indicative of a pattern or scheme than it is of the fact that in the locality where the offenses occurred, only females customarily carry their purses outside their clothing, usually by means of hand or shoulder straps. There is no suggestion that only white females are victims of purse grabbing by black offenders, so that we must discount any probable connection of the two offenses based upon this factor. We are likewise not persuaded by the state’s argument that nonuse of a weapon of any kind would be a significant identifying feature, without other similar facts establishing some special plan or modus operandi. Finally, the fact that a black male committed both offenses does not tend, in our opinion, to prove that the perpetrators were one and the same, since we judicially know that color of the perpetrator alone bears no relationship to the incidence of this or any other crime.

In finding reversible error in the admission of the other crime evidence we are guided by the principles stated in Flowers v. State, 386 So.2d 854 (Fla. 1st DCA 1980), at page 855:

In order for evidence of one offense to be admissible on the issue of identity in a prosecution for another offense, the circumstances surrounding the commission of the two offenses must be more than just similar. Duncan v. State, 291 So.2d 241 (Fla. 2nd DCA 1974).

Upon our examination of other points presented, we have concluded that no error was committed by the trial judge in giving the instruction on the inference of guilt arising from the unexplained possession of recently stolen goods, Section 812.-022(2), Florida Statutes (1979). State v. Young, 217 So.2d 567 (Fla.1968), cert. den. 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101; Edwards v. State, 381 So.2d 696 (Fla.1980). There was no error in the trial judge’s denial of appellant’s motion for judgment of acquittal based upon insufficiency of the evidence, and we find no merit in the remaining points presented.

REVERSED and REMANDED for new trial.

ERVIN and SHIVERS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Johnny HUNTER, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. UU-487.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1980.

      Richard A. Belz, Florida Institutional Legal Services, Inc., Gainesville, for appellant.
    Jim Smith, Atty. Gen., Bruce Barkett, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

We dismiss this appeal since the appellant has neglected a clear point of entry to § 120.56 proceedings by filing a rule challenge before the Division of Administrative Hearings as required by § 120.-56(2), Florida Statutes (1979). As an inmate of a Florida correctional institute, the appellant is denied party standing for a § 120.57 proceeding. See Section 120.-52(10)(d), Florida Statutes (1979). However, this appeal is dismissed without prejudice to appellant’s right to initiate an administrative rule challenge proceeding under § 120.56. See Bowling v. Florida Department of Corrections, 389 So.2d 1031, rehearing denied with opinion, Case No. 00-468 (Fla. 1st DCA, November 7, 1980); Douglas v. Florida Department of Corrections, 388 So.2d 587, Case No. 00-426 (Fla. 1st DCA, August 26, 1980).

DISMISSED.

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


text:
    ST. JOE PAPER COMPANY, Appellant, v. SOUTHERN OIL EXPLORATION, INC., Appellee.
    No. WW-280.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1980.
    Richard Smoak of Isler, Brown, Smoak & Watson, Panama City, for appellant.
    Bill R. Hutto of Fitzpatrick, Syfrett & Hutto, Panama City, for appellee.
   PER CURIAM.

Appellant appeals the trial court’s order granting summary judgment on the issue of liability under a contract for the sale of oil and gas leases on lands owned by appellant in Gulf and Liberty Counties. We affirm.

The thrust of appellant’s argument is that the parties did not know the exact amount and description of the lands involved, therefore no agreement was proved on a critical part of the contract. Appellant argues that a material factual issue was in dispute and summary judgment was improper.

We find no merit in those contentions. The record shows that the contract related to oil leases of all lands owned by appellant in Gulf and Liberty counties. The exact determination of acreage was to be made from the public records in the two counties. The memoranda between the parties acknowledging the contract confirmed this. We find no material issue in dispute and hold that the trial court was correct in granting summary judgment on the issue of liability.

The order is accordingly affirmed.

WENTWORTH and JOANOS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: PER CURIAM. SCHWARTZ, Judge

text:
    Lionel LEISURE, d/b/a Lionel Playworld, Appellant, v. COLECO INDUSTRIES et al., Appellees. Michael LANHAM, Appellant, v. Lionel LEISURE, d/b/a Lionel Playworld, Appellee.
    Nos. 79-841, 79-1175 and 79-1206.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1980.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for Lionel Leisure.
    Adams & Ward and James W. Kaufman, Miami, for Coleco.
    Pattillo, MacKay & McKeever and L. Edward McClellan, Jr., Ocala, for Lanham.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The trial court properly refused appellant’s requested strict liability instruction. See Skaggs v. Clairol, Inc., 6 Cal.App.3d 1, 85 Cal.Rptr. 584 (Ct.App.1970). In so ruling, we reject appellant’s claim that appel-lee’s sale of the pool and slide as a unit constituted sale of a “product in a defective condition unreasonably dangerous to the user... . ”

The remarks made by counsel and the bench, if error, were harmless.

Affirmed.

SCHWARTZ, Judge

(specially concurring).

I would not reach the question of the applicability vel non of the strict liability doctrine, because the fact that the jury was charged on both negligence and breach of warranty rendered the failure to give the plaintiffs requested strict liability instruction no more than harmless error. Sansing v. Firestone Tire & Rubber Co., 354 So.2d 895 (Fla.4th DCA 1978), cert. denied, 360 So.2d 1250 (Fla.1978). I otherwise agree to affirmance.


text:
    Thania O. ESPINOSA, as Personal Representative of the Estate of Martha T. Castellanos, Deceased, Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, a foreign corporation, Appellee.
    No. 79-2116.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1980.
    Carlos Lidsky and Neil I. Marvanoff, Coral Gables, for appellant.
    Pyszka, Kessler & Adams and John C. Hamilton, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Behrmann v. Industrial Fire & Casualty Insurance Company, 374 So.2d 568 (Fla. 3d DCA 1979).

SCHWARTZ, Judge

(specially concurring).

I agree that Behrmann v. Industrial Fire & Casualty Ins. Co., 374 So.2d 568 (Fla. 3d DCA 1979) is controlling. Since my dissenting views, to which I still adhere, did not prevail in Behrmann, I concur in affirmance.


text:
    Joseph GMEREK and Sophia Gmerek, his wife, Appellants, v. Norman S. RACHLIN, Reva Rachlin and Aetna Casualty and Surety Company, Appellees.
    No. 79-2351.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1980.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Miami, for appellants.
    Stephens, Schwartz, Lynn & Chernay and Robert M. Klein, Miami, for appellees.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The trial court held, as a matter of law, that the owner of an automobile parked in a high crime area with the keys in the ignition is not liable to third persons injured in an accident involving said vehicle, which occurred some five-and-one-half months after the vehicle was stolen. We affirm.

Even if it was negligent to leave the keys in the ignition, under the principles announced in Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1978); Section 316.097, Florida Statutes (1975) we hold that the responsibility for such negligence must terminate at some time in the future and, at least, the owner of the automobile would not be liable for an accident occurring some five and one-half months after the automobile was stolen. It was not reasonable and probable that such a result would occur from the negligent act of leaving the keys in the ignition. Newton v. Davis Transport & Rentals, Inc., 312 So.2d 200 (Fla. 1st DCA 1975); Casey v. Corson & Gruman Company, 221 F.2d 51 (D.C.Cir.1955); Childers v. Franklin, 46 Ill.App.2d 344, 197 N.E.2d 148 (1964); Liberto v. Holfeldt, 221 Md. 62, 155 A.2d 698 (1959); Anno. 45 A.L.R.3d, §§ 6(b) and 9(b) and cases cited therein; and Cone v. Inter County Telephone and Telegraph Company, 40 So.2d 148 (Fla.1949), wherein the following is found:

“The responsibility of a tort-feasor for the consequences of his negligent acts must end somewhere, and under our legal system the liabily of the wrongdoer is extended only to the reasonable and probable, not the merely possible, results of a dereliction of duty.”

Therefore, for the reasons stated, the final summary judgment is affirmed.

Affirmed.


author: DANIEL S. PEARSON, Judge.

text:
    Isaac FELDMAN, Appellant, v. Zena K. FELDMAN, Appellee.
    No. 80-62.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1980.

      Weintraub, Weintraub, Seiden, Dudley & Press and Albert L. Weintraub, Miami, for appellant.
    Markus & Winter and Laurie S. Silvers, Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The portions of the final judgment of dissolution of marriage which awarded attorneys’ fees in the amount of $10,000 to the wife, Zena Feldman, and ordered Isaac Feldman to transfer to Zena twenty-six per cent of the operating capital of American Men’s Wear Clothing Company, Inc., are reversed upon holdings that (1) the failure of the wife to offer expert testimony to establish the reasonableness of the attorneys’ fees vitiates the award, Alexander Muss & Sons, Inc. v. Nelson, 366 So.2d 532 (Fla. 3d DCA 1979); Wilson v. Wilson, 362 So.2d 1030 (Fla. 3d DCA 1978); Segal v. Segal, 353 So.2d 894 (Fla. 3d DCA 1977); Lee v. Gilbert, Silverstein & Heilman, P. A., 350 So.2d 1147 (Fla. 3d DCA 1977); (2) the trial court, although well within its authority to order, as it did, the husband to transfer to the wife stock owned by him in American Men’s Wear Clothing Company, Inc., was not empowered to order the transfer of the assets of a corporation which was not a party to the litigation, see Couture v. Couture, 307 So.2d 194 (Fla. 3d DCA 1975).

Since the wife’s failure to offer expert testimony on the reasonableness of attorneys’ fees may have resulted from the trial court’s premature award of such fees, we remand this cause with directions that the wife be afforded an opportunity to present such testimony at a further hearing before the trial court. In all other respects, the final judgment of dissolution is affirmed.

Affirmed in part; reversed in part and remanded.


text:
    Michael John SOWA, Appellant, v. The STATE of Florida, Appellee.
    No. 80-137.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1980.
    Martin Lemlich, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. State v. Pizarro, 383 So.2d 762 (Fla. 4th DCA 1980); Allen v. State, 383 So.2d 674 (Fla. 5th DCA 1980).


text:
    Fidel J. QUINTANA, M.D., Appellant, v. Carmelina S. CARTER, as Personal Representative of the Estate of Luis Buena-Ventura Sing-Mirabel, Appellee.
    No. 80-270.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1980.
    Robinson & Greenberg and Daniel K. Bandklayder and Barry N. Greenberg, Miami, for appellant.

      Broad & Cassel and Patricia Lebow, Bay Harbor Island, Schwartz, Klein & Stein-hardt and Jay S. Weiss, Miami, for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Casas v. Rosell, 359 So.2d 491 (Fla. 3d DCA 1978).


text:
    Carl David GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 80-770.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1980.
    Carl Green, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Petitioner, Carl Green, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    STATE of Florida, Appellant, v. Melvin D. SHULL, Appellee.
    No. 78-2147/T4-231.
    District Court of Appeal of Florida, Fifth District.
    Dec. 10, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth G. Spillas, Asst. Atty. Gen., West Palm Beach, for appellant.
    Robert S. Sigman, Orlando, for appellee.
   NORRIS, WILLIAM A., Jr., Associate Judge.

In an amended information the state charged appellee with one count of second degree grand theft of a pistol and one count of dealing in stolen property, the same pistol. Appellee filed an unverified and un-sworn amended motion to dismiss pursuant to the provisions of Rule 3.190(c)(4), Florida Rules of Criminal Procedure, a so-called “c-4 motion.” The state filed a traverse to the c-4 motion, and thereafter the trial court granted the amended motion to dismiss as to both counts of the amended information. In dismissing the amended information the trial court erred and we reverse.

The express language of the rule, “[t]he facts on which such motion is based should be specifically alleged and the motion sworn to,” reveals the deficiency in appellee’s motion. The motion contained neither sufficient factual allegations nor were the purported facts sworn to. In support of the amended motion appellee did file a memorandum of law which alleged facts. However, these alleged facts were not sworn to and were thus insufficient compliance with the requirements of the rule. State v. Kling, 335 So.2d 614 (Fla. 2d DCA 1976); State v. McIntyre, 303 So.2d 675 (Fla. 4th DCA 1974); State v. Russo, 299 So.2d 40 (Fla. 4th DCA 1974).

While the procedural deficiency of the amended motion to dismiss requires reversal, we feel it is also appropriate to observe that assuming, arguendo, that the amended motion to dismiss had been sworn to and had incorporated all of the alleged facts in the supporting memorandum of law, the state’s traverse was sufficient to raise disputed material issues of fact regarding defendant’s knowledge and intent, thereby requiring a denial of the motion to dismiss. State v. Guyton, 331 So.2d 392 (Fla. 4th DCA 1976); State v. West, 262 So.3d 457 (Fla. 4th DCA 1972).

The order dismissing the amended information is reversed and the cause remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

DAUKSCH, C. J., concurs.

FRANK D. UPCHURCH, Jr., J., concurs without participation in oral argument.


author: COWART, Judge.

text:
    Hampesle Lee JOHNSON, Sr., Petitioner, v. STATE of Florida, Respondent.
    No. 80-1326.
    District Court of Appeal of Florida, Fifth District.
    Dec. 10, 1980.

      Hampesle Lee Johnson, Sr., pro se.
    No appearance for respondent.
   COWART, Judge.

The petitioner, Hampesle Lee Johnson, Sr., has filed a petition for writ of habeas corpus alleging that he was illegally found guilty of some unspecified criminal charge in July of 1980 and showing that he has heretofore filed two or more petitions for writs of habeas corpus in the circuit court, the last of which was denied on August 13, 1980. The petition in this court complains of various errors alleged to have occurred before or during his trial. Habeas corpus may not be used as a vehicle to raise for the first time issues that the petitioner could have raised during his trial and on appeal. Hargrave v. Wainwright, 388 So.2d 1021 (Fla.1980). Also, when a petitioner first files an original proceeding in the circuit court seeking a writ of habeas corpus, he cannot thereafter, on the same matter, properly file a petition for habeas corpus in a district court of appeal because such an original proceeding is not a proper remedy to seek review of the circuit court’s denial and, further, because the constitution gives concurrent jurisdiction over habeas corpus to the circuit court, district courts of appeal, and the supreme court, res judicata applies to prevent repetitious applications upon the same matter to successive courts. State ex rel. Scaldeferri v. Sandstrom, 285 So.2d 409 (Fla.1973); Lamberti v. Wainwright, 284 So.2d 202 (Fla.1973); Mitchell v. Wainwright, 155 So.2d 868 (Fla.1963); Florida Parole and Probation Commission v. Baker, 346 So.2d 640 (Fla. 2d DCA 1977).

The petitioner also files a motion for an appeal bond citing Rule 3.820(b), Florida Rules of Criminal Procedure. However, that rule relates to bail pending a review of a decision discharging a prisoner on habeas corpus and in this case the trial court did not discharge the petitioner. From petitioner’s petition and motion it appears that Rule 3.820(a), Florida Rules of Criminal Procedure, more appropriately applies and that rule provides that the custody of the prisoner shall not be disturbed pending review by the appellate court. Accordingly, the motion for bail is denied.

Without prejudice to any rights which the petitioner might have to seek review by appeal, the application for a writ of habeas corpus is

DENIED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . This court has jurisdiction to review by appeal under Fla.R.App.P. 9.030(b)(1)(A) the final order of the circuit court acting on the petition for writ of habeas corpus filed in the circuit court but such an appeal must be timely. Fla. R.App.P. 9.110(b). Although this successive writ for habeas corpus is, in one sense of the phrase, an improper remedy, we do not apply Fla.R.App.P. 9.040(c) and treat it as an appeal of the circuit court’s denial of his petition for habeas corpus because his petitions in the circuit court are facially insufficient and because the petition for habeas corpus in this court complains not of error in the circuit court’s denial of his writ of habeas corpus but of alleged errors in matters involving his criminal trial. To find a remedy for petitioner’s complaints we would be required to treat his petition as an appeal of his criminal conviction. Rule 9.040(c) does not require that we go that far. Petitioner in this case does not suggest that state action has thwarted an appeal of his conviction nor does he by his present petition to this court seek a belated appeal under Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967), cert. den. 391 U.S. 968, 88 S.Ct. 2040, 20 L.Ed.Zd 882 (1968), and Baggett v. Wainwright, 229 So.2d 239 (Fla.1969).


text:
    Claire WEISS, Appellant/Cross-Appellee, v. Max WEISS, Appellee/Cross-Appellant.
    No. 79-364.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1980.
    Rehearing Denied Dec. 24, 1980.
    Richard A. Kupfer, of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellant/cross-appellee.
    Young, Stern & Tannerbaum, North Miami Beach, and Larry Klein, West Palm Beach, for appellee/cross-appellant.
   PER CURIAM.

This is an appeal by the wife and a cross-appeal by the husband from a final judgment in a dissolution proceeding. At the time he filed the petition for dissolution, the husband was 86 years of age, and the wife was 62. The parties were married in December, 1970. It was the second marriage for the husband and the third for the wife, both having survived their previous spouses.

Since the only point worthy of discussion is the award of the wife’s interest in the home and furnishings of the parties to the husband as a special equity, we shall discuss only those facts relevant to that determination. When the parties were first married, they lived in the house in Hillside, New Jersey, where the husband had lived with his first wife. Thereafter they purchased a house in Palm Springs, California, sold the Hillside house and purchased a condominium in Freehold, New Jersey. Ultimately they sold the Freehold condominium and Palm Springs house and bought the house in Boca Raton, which is the subject matter hereof. Titles to the Palm Springs, Freehold and Boca Raton homes were in both parties’ names.

The trial court found and held, inter alia:

1. The funds used to purchase the marital homeplace in Boca Raton came solely from the Husband as a result of the sale of previous homes including the sale of the marital homeplace of the Husband and his deceased first wife. While the home was titled in the names of both the Husband and Wife, the evidence is clear that the Husband did not intend to make a gift to the Wife, and it was admitted that the Wife made no monetary contributions toward the purchase of the home. Since the funds for the purchase of the home originated from a source unconnected with the marital relationship and there was no gift intended by the Husband, the Court finds that the Husband has a special equity in the Boca Raton home equal to the total ownership of said home....

The record contains substantial competent evidence to sustain these findings. Consequently the trial court correctly concluded that the husband had a special equity in the Boca Raton home. Kaylor v. Kaylor, 390 So.2d 752 (Fla. 4th DCA 1980); Kellner v. Kellner, 388 So.2d 1274 (Fla. 4th DCA 1980); Aguiar v. Aguiar, 386 So.2d 280 (Fla. 4th DCA 1980); Duncan v. Duncan, 379 So.2d 949 (Fla.1980).

Accordingly, the final judgment is affirmed.

AFFIRMED.

BERANEK, HERSEY and GLICK-STEIN, JJ., concur.


author: DANAHY, Judge.

text:
    Jonell GREEN, Appellant, v. CITY OF TAMPA, Appellee.
    No. 78-2122.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1980.
    Laurence I. Goodrich, Tampa, for appellant.
    William J. Terry of Himes, Terry. & Ket-chey, P. A., Tampa, for appellee.
   DANAHY, Judge.

Jonell Green appeals a final summary judgment in favor of the City of Tampa. The basis for the judgment was a holding by the trial court that appellant’s cause of action was barred by section 95.24, Florida Statutes (1973), a one-year statute of limitation for negligence claims against a city which was repealed as of January 1, 1975. We reverse.

Appellant’s claim accrued on October 25, 1974, and thus was unbarred when section 95.24 was repealed on January 1, 1975. On that date section 768.28, Florida Statutes (1975), which waived sovereign immunity for cities and imposed a four-year statute of limitation, became effective. That section was specifically made prospective only, applying to incidents arising after January 1, 1975. Thus, section 768.28 could not be applied to save Green’s cause of action.

We hold that the controlling statute of limitation in this case is section 95.11(3)(a), as amended January 1, 1975. Section 95.-ll(3)(a) imposes a four-year limitations period for negligence actions generally. Application of this four-year time limit, which effectively extended Green’s time for commencing her claim to October 25, 1978, is not a retroactive application, does not impair a vested right, and violates no legislative mandate to the contrary. Mazda Motors of America, Inc. v. S. C. Henderson & Sons, Inc., 364 So.2d 107 (Fla.1st DCA 1978), cert. denied, 378 So.2d 348; Neff v. General Development Corporation, 354 So.2d 1275, 1276 n.1 (Fla.2d DCA 1978). Since Green’s suit was commenced on August 25,1977, it is not barred by a statutory limitation.

Therefore, we order the trial court to reinstate Green’s amended complaint and to proceed with the cause.

REVERSED AND REMANDED.

BOARDMAN, Acting C. J., and RYDER, J., concur.


author: OTT, Judge.

text:
    James Warren NICHOLS, Appellant, v. STATE of Florida, Appellee.
    No. 79-2325.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1980.
    James D. Eckert and C. J. Abernathy, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki and Peggy A. Quince, Asst. Attys. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was convicted of the possession and sale of cocaine. We reverse because the state failed to present proper evidence connecting appellant with the crime.

An undercover agent arranged to buy cocaine from one Knox. They proceeded to a motel and waited in a room until some unidentified person knocked and handed Knox a package of cocaine. Police officers staked out at the motel saw a red pickup truck drive in and park in back of the motel before the delivery took place. Shortly after the sale, officers observed appellant entering a bar a few doors up the street from the motel. They arrested him and a subsequent check revealed that the red pickup truck was registered in his name. In Knox’ car the police found a letter addressed to him at appellant’s residence on the south side of St. Petersburg.

At the trial, the state endeavored to close the obvious gaps in its case by introducing certain statements made by Knox. Knox himself did not appear to testify, but the undercover agent testified that Knox had told him that “his man,” who would be bringing the cocaine from the south side of St. Petersburg, had been arrested three years earlier for selling 85 pounds of marijuana. Another officer then took the stand and testified that he had arrested appellant three years earlier for selling 85 pounds of marijuana.

Knox’ out-of-court statements were obviously hearsay. The state attempted to avoid that obstacle by casting appellant and Knox as the principals of a conspiracy, thus rendering admissible the hearsay statements of co-conspirator Knox under that exception to the hearsay rule. The difficulty is that before any such statements are admissible, the alleged conspiracy itself must first be established by independent evidence, and the hearsay statements may not be used for that purpose. Briklod v. State, 365 So.2d 1023, 1026 (Fla.1979). In the case before us, only the statements of Knox connect appellant with the crime or with any conspiracy to commit it.

Appellant also attacks the admission of testimony concerning a previous crime-the sale of marijuana three years earlier. In view of our holding on the hearsay point we need not address that issue.

The judgment is reversed with instructions to the trial court to enter a judgment of acquittal. Briklod v. State, supra.

BOARDMAN, Acting C. J., and RYDER, J., concur.


text:
    Calvin Vincent EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. OO-275.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1980.

      Michael J. Minerva, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant raises three points in his appeal from a judgment of conviction of one count of robbery with a firearm, one count of burglary of a dwelling, and two counts of sexual battery. We affirm.

Appellant first argues that the trial court erred in reserving ruling on his motion for judgment of acquittal at the close of the State’s presentation of evidence. We find no error as to this point. Marshall v. State, 321 So.2d 114 (Fla. 1st DCA 1975). By proceeding with his case without requiring the court to rule on his motion of acquittal, appellant treated the motion as denied.

As to Point 2, appellant relies on McArthur v. Nourse, 369 So.2d 578 (Fla.1979), in arguing that it was error for the trial court to deny his motion for judgment of acquittal because the circumstantial evidence was insufficient to support a conviction. The evidence at trial revealed that the assailants were black and used a two-cell flashlight. One of the men wore red plaid cutoffs, and another wore rubber gloves. The officers investigating the crime testified that they visually followed two sets of footprints, one barefooted and the other with a specific shoe design, from a point outside a rear window of the house to an intersection across the street from the house. Approximately two hours after the crime occurred, a bloodhound named Wrinkles was put down at the barefoot track at the intersection. Wrinkles followed the trail which led to a parked vehicle in which appellant was sleeping. Appellant was black, barefooted, wearing red plaid cutoffs, and had a two-cell flashlight and a pair of rubber gloves in his possession.

Appellant argued that the evidence concerning the trailing of Wrinkles should not have been introduced because of Wrinkles’ young age. We disagree. At trial a proper predicate was laid for the admissibility of this evidence. Wrinkles’ former owner, as well as his present trainer, testified to the training methods used with Wrinkles and his prior record of tracking humans. Previously he had been used successfully on four or five different occasions to track escapees from jail. Wrinkles was a purebred registered bloodhound and he was put down on a trail which the officers had visually followed from the house to the point where he started. There was no hesitation on Wrinkles’ part in following the trail to appellant’s vehicle. See Tomlinson v. State, 129 Fla. 658,176 So. 543 (1937). See generally, Annot. 18 A.L.R.3d 1221 (1968).

Considering the circumstantial evidence of Wrinkles’ tracking in conjunction with appellant’s clothing, his being barefooted, and his possession of the gloves and flashlight, we find no error in the trial court’s denying the motion for acquittal and submitting this case to the jury. We find no departure from the requirements of McArthur v. Nourse, supra.

Appellant’s last point is that the court erred in allowing the prosecutor, on cross-examination, to inquire into the nature of appellant’s alleged homosexual acts committed with a neighbor during the night in question. Appellant, in offering an alibi, testified as to his homosexual relationship that night. As unsavory as this cross-examination may have been, we find no error in allowing the prosecutor to inquire into the relationship. Appellant placed his homosexual activities in issue when he testified on direct examination. The prosecutor had the right to cross-examine appellant concerning his direct testimony. G.C.O. v. State, 309 So.2d 608 (Fla. 2d DCA 1975). The extent of cross-examination is within the discretion of the trial judge and appellant has shown no abuse of this discretion.

Appellant’s conviction and sentence is affirmed.

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


text:
    MANNY’S DRESSES and Parliament Insurance Company, Appellants, v. Mercedes ARIAS, Appellee.
    No. TT-165.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1980.
    C. J. Budzinski, Hialeah, for appellants.
    Howard N. Pelzner and Joseph J. Finkel-stein, Miami, for appellee.
   PER CURIAM.

The order of the Deputy Commissioner merely states that the factors in Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968) have been considered, but findings of fact must be sufficiently stated, if a meaningful review is to be conducted. See Casings, Florida, Inc. v. Williams, 389 So.2d 705 (Fla. 1st DCA 1980); State of Florida, Sunland Training Center at Miami v. Caldwell, 388 So.2d 640 (Fla. 1st DCA 1980).

REMANDED for further consideration not inconsistent with this opinion.

ROBERT P. SMITH, Jr. and THOMPSON, JJ., and LILES, WOODIE A., Associate Judge (Retired), concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    Richard Scott MAURICE, Appellant, v. James I. MONTGOMERY and Dale Carson, Appellees.
    No. UU-29.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1980.

      Hugh A. Carithers, Jr., of Sheppard, Car-ithers & Weinbaum, P.A., Jacksonville, for appellant.
    Dawson A. McQuaig, Gen. Counsel, and William Lee Allen and Thomas E. Crowder, Asst. Counsel, Jacksonville, for appellees.
   ROBERT P. SMITH, Jr., Judge.

This is an appeal from a directed verdict entered by the trial court, at the close of plaintiff’s evidence. Appellant, plaintiff below, brought this suit against Appel-lee/MontgOmery, in his capacity as Chief of the Jacksonville Correctional Institution, and Appellee/Carson, as Sheriff of the City of Jacksonville. This action arose from an incident which occurred when plaintiff was incarcerated in the Jacksonville Correctional Institution.

Plaintiff was a “juvenile on court order,” i. e., one certified by court order to be prosecuted as an adult. He was housed in the Jacksonville Correctional Institution, in a cell with five other juveniles on court order, all of whom, including plaintiff, had previously been adjudged to have committed a crime. Plaintiff alleged that he was repeatedly homosexually raped by two of the juveniles with whom he was incarcerated.

The gist of plaintiff’s action is that he was negligently housed with other juveniles on court order, in violation of Rule 33-8.-05(2), Rules and Regulations of the State of Florida. Rule 33-8.05(2) provides:

Juveniles on court order shall not be placed in the same cell with any other adult or juvenile alleged to have committed, or who has been adjudged to have committed, a crime.

Defendants moved for a directed verdict at the close of plaintiff’s case on the grounds that since plaintiff was previously adjudicated a felon, he was to be treated as an adult for incarceration purposes and, therefore, did not come within the purview of the rule. The trial court apparently agreed with defendants’ reasoning, and granted their motion for directed verdict. We disagree and reverse.

Rule 33-8.05(2) applies only to county and municipal detention facilities, such as the Jacksonville Correctional Institution. Further, the only type of juvenile which can be housed in a county or municipal detention facility is a “juvenile on court order,” as all other juveniles are housed in facilities operated by the Department of Health and Rehabilitative Services, pursuant to § 39.11, Florida Statutes. Therefore, we construe the word juvenile in the rule as referring to “juveniles on court order.” Thus, we construe the rule as prohibiting juveniles on court order from being housed with any other adult or juvenile on court order who has been charged with or convicted of committing a crime. Of course, this requires that juveniles on court order be housed alone, both before and after standing trial.

In the instant case, the authorities at the Jacksonville Correctional Institution have traditionally made a distinction between those juveniles on court order who have been convicted of a crime, and those who have not yet gone to trial. Pre-trial juveniles on court order are housed alone, whereas those already convicted are housed with others of the same status. We see no basis for such a distinction under the rule.

We are mindful of the fact that had the drafters of the rule intended it to require that juveniles on court order not be housed with any other person, it would have been simple to state just that. However, while the wordiness of the rule may actually serve to obfuscate its purpose, we feel that the inclusion of the phrase: “alleged to have committed, or who has been adjudged to have committed, a crime,” was meant to clarify the intention that juveniles on court order not be housed with any other person, regardless of that person’s status. In other words, the rule was designed to prevent just the type of distinction made by the Jacksonville Correctional Institution, between pre-trial and post-conviction juveniles on court order.

For these reasons, we find that plaintiff did come within the purview of Rule 33-8.-05(2), Rules and Regulations of the State of Florida, and the trial court erred in directing a verdict for defendants. Accordingly, final judgment for defendants entered on the directed verdict is reversed and the cause is remanded for a new trial.

SHAW, J., concurs.

BOOTH, J., dissents without opinion.


author: WENTWORTH, Judge.

text:
    STATE of Florida, Appellant, v. Thomas Quinton BARNES, Appellee.
    No. UU-363.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1980.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellant.
    Michael J. Minerva, Public Defender; and Margaret Good, Asst. Public Defender, Tallahassee, for appellee.
   WENTWORTH, Judge.

This is an interlocutory appeal by the state from an order granting defendant Thomas Quinton Barnes’ motion to suppress illegally seized evidence.

The stipulated facts were as follows: Sheriff’s Deputy James Tucker was informed there was marijuana growing behind Barnes’ mobile home. From an adjoining neighbor’s property, during daylight hours, Tucker, using binoculars, saw a plant among other weeds and bushes in Barnes’ backyard, but could not identify the plant as marijuana. He therefore travelled to Lafayette County and borrowed a high-powered telescope from the Lafayette County Sheriff’s Department. Using this telescope, Tucker identified the plant as marijuana. Tucker left the area and returned at night with several officials, but without a search warrant. When Barnes walked home from a neighbor’s house to find out why the officers were there, he was arrested for possession of cannabis. The officers then went behind Barnes’ home and searched the yard, seizing one plant believed to be cannabis and four or five stems one-half inch in diameter and eight to ten inches long.

No reason was given for not obtaining a search warrant other than advice from the state attorney’s office that a warrant was not necessary. Between the officer’s daytime attempts to view the marijuana from the neighbor’s yard and his return at night with two additional officials, when the evidence was seized, a warrant could have been obtained. See Walter v. United States, - U.S. -, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). The state argues, however, that the plant was in plain view and could be seized without a warrant.

The law is clear that what a person knowingly exposes to the public is not the subject of fourth amendment protections. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). But the public to whom something is knowingly exposed must be “the ordinary run of people, not those who happen to possess powerful and sophisticated devices and the curiosity to use them to spy on their fellows.” United States v. Taborda, 491 F.Supp. 50 (E.D.N.Y.1980). Upon such analysis, the use of a high-powered telescope in the instant case distinguishes it from Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA 1978), cert. denied, 361 So.2d 833 (Fla.1978), in which the seizure from appellant’s yard of marijuana plants, visible to an officer standing in a neighboring yard, was not an intrusion into an area in which appellant had a reasonable expectation of privacy.

The plain view exception to the warrant requirement cannot in our opinion be used to justify the seizure of evidence clearly identifiable only through a telescope, the warrantless use of which constitutes an intrusion into an area not reasonably expected to be exposed to the public. “If government agents have probable cause to suspect criminal activity and feel the need for telescopic surveillance, they may apply for a [search] warrant.” United States v. Kim, 415 F.Supp. 1252 (D. Haw. 1976). Otherwise, we conclude such conduct is an intrusion into an area in which there is a reasonable expectation of privacy, accomplished by special equipment not in general use. Id.; cf. Walter v. United States, - U.S. -, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980).

We affirm the order appealed.

JOANOS, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: SHAW, Judge.

text:
    JR. FOOD STORES OF WEST FLORIDA, INC., d/b/a Tom Thumb Food Store # 109, Tom Thumb Food Store # 118, Tom Thumb Food Store # 116, Tom Thumb Food Store # 111, Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. VV-14.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1980.

      Thomas F. Woods and Felix A. Johnson, Jr., of Woods, Johnston & Erwin, Tallahassee, for appellants.
    Daniel C. Brown, Deputy Gen. Counsel, Tallahassee, for appellee.
   SHAW, Judge.

On April 6, 1978, while making a routine license inspection of appellant’s stores, a beverage agent found and confiscated a number of items which he determined to be illegal fireworks. The appellant was given a written reprimand and appeals the agency action on grounds that the selling of the items is not illegal because they do not fit within the definition of illegal fireworks under Chapter 791, Florida Statutes (1977). Appellant further contends that the statute is so vague as to be an unconstitutional delegation of legislative power to an agency-

The pertinent statute reads as follows:

791.01 “Fireworks” defined.-
(1) The term “fireworks” shall mean and include any combustible or explosive composition, or any substance or combination of substances, or, except as hereinafter provided, any article prepared for the purpose of producing a visible or an audible effect by combustion, explosion, defla-gration or detonation, and shall include blank cartridges and toy cannons in which explosives are used, the type of balloons which require fire underneath to propel the same, firecrackers, torpedoes, skyrockets, roman candles, daygo bombs, and any fireworks containing any explosives or flammable compound or any tablets or other device containing any explosive substance.
(2) The term “fireworks” shall not include sparklers, toy pistols, toy canes, toy guns, or other devices in which paper caps containing twenty-five hundredths grains or less of explosive compound are used, providing they are so constructed that the hand cannot come in contact with the cap when in place for the explosion, and toy pistol paper caps which contain less than twenty hundredths grains of explosive mixture, the sale and use of which shall be permitted at all times.

The hearing officer found that for the purposes of Chapter 791, the term “fireworks” means and includes any item prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration or detonation. The challenged finding of the hearing officer is in accord with legislative intent and no error has been shown in agency action adopting the hearing officer’s recommendation. When words of common usage appear in a statute they should be construed in their ordinary sense. Pedersen v. Green, 105 So.2d 1 (Fla. 1958). We do not find the statute so vague or overbroad as to leave in doubt the legislative proscription. We, therefore, reject the appellant’s “due process” challenge to the delegation of legislative authority to the Division of Alcoholic Beverages and Tobacco. The Division’s final order accepting the hearing officer’s recommended penalty is affirmed.

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


author: THOMPSON, Judge.

text:
    Robert L. KOHN, Appellant, v. Tom R. DAVIS, Appellee.
    No. VV-205.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1980.
   THOMPSON, Judge.

Kohn, an applicant for the position of Dean of Students at Columbia High School, brought this defamation action against Davis, an elected member of the Columbia County School Board, seeking damages for allegedly slanderous remarks made by Davis about Kohn during a duly convened meeting of the School Board at which his application was under consideration. The trial court dismissed the complaint with prejudice finding that the statements made by Davis were absolutely privileged. We affirm. See, Hauser v. Urchisin, 231 So.2d 6 (Fla.1970); McNayr v. Kelly, 184 So.2d 428 (Fla.1966); Johnsen v. Carhart, 353 So.2d 874 (Fla. 3d DCA 1977).

ROBERT P. SMITH, Jr., J., and WOOD-IE A. LILES (Ret.), Associate Judge, concur.


text:
    Raymond C. OLSON, D.D.S. and Chubb/Pacific Indemnity Company, Appellants, v. Charles WAGNER, Appellee.
    No. TT-391.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1980.
    Kent S. Pratt, of Law Office of Frank G. Cibula, Jr., West Palm Beach, for appellants.
    J. Michael Brennan of Brennan & Mus-chott, Ft. Pierce, for appellee.
   PER CURIAM.

Appellants, in their first point, have urged that the Deputy Commissioner erred in finding that the claimant received an injury by accident arising out of and in the course and scope of his employment. A review of the record indicates there was substantial competent evidence to support the deputy’s finding in this regard, so we affirm as to this point.

Appellants’ second point, however, in which they argue that the deputy erred in excusing the physicians for their failure to file medical bills and reports presents a troublesome point. The deputy’s order excuses the physicians’ filings “because of the nature of the case and the fact that they [the doctors] very rarely deal with workmen’s compensation matters”. § 440.13, Fla.Stat. (1977). There is no evidence that the doctors were unfamiliar with compensation matters; in fact, evidence suggests the contrary. The findings are inadequate to review whether or not the deputy could excuse the lack of filing for other reasons. We, therefore, remand the case to the deputy for further consideration. On remand, the deputy should determine whether good cause or waiver is otherwise present as urged by appellee. In making this determination, the deputy should consider the purposes behind the filing of timely reports and the question of prejudice, if any, caused by the failure to file timely reports. Torres v. Eden Roc Hotel, 238 So.2d 639 (Fla.1970); Jones v. Plantation Foods, 388 So.2d 590 (Fla. 1st DCA 1980). The deputy may take further evidence to make these findings.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

McCORD, SHIVERS and JOANOS, JJ., concur.


text:
    DOCUMATION, INC., and Utica Mutual Insurance Company, Appellants, v. Larry D. PENCE, Appellee.
    No. UU-19.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1980.
    Frank Marriott, Jr. of Gosney, Cameron, Parsons & Marriott, P.A., Daytona Beach, for appellants.
    Gavin D. Lee of Nance, Cacciatore & Sisserson, Melbourne, for appellee.
   PER CURIAM.

Affirmed. We note that claimant has included a petition for attorney’s fees in his answer brief. Although in this workers’ compensation case, we have found the points raised by appellant to be without merit, we deny the request for attorney’s fees because it was improperly filed. We have previously determined that Rule 9.400(b) of the Florida Rules of Appellate Procedure requires that a motion for attorney’s fees be filed separately. See Florida Dept. of Commerce v. Davies, 379 So.2d 1313 (Fla. 1st DCA 1980); Wallace v. Walton Context Building, 383 So.2d 729 (Fla. 1st DCA 1980); Munroe Memorial Hospital v. Thompson, 388 So.2d 1338 (Fla. 1st DCA 1980).

McCORD, SHIVERS and JOANOS, JJ„ concur. ■


author: SHIVERS, Judge.

text:
    Jackie O’Neal ADAMS et al., Appellants, v. Walter D. FISHER and Redwing Carriers, Inc., Appellees.
    No. UU-56.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1980.

      John L. Myrick of Myrick & McKenzie, Pensacola, for appellants.
    Artice L. McGraw and P. Michael Patterson, Pensacola, for appellees.
   SHIVERS, Judge.

This appeal is from an award of attorney’s fee by the trial court in Escambia County. This Court’s earlier case of Sohn v. Brockington, 371 So.2d 1089 (Fla. 1st DCA 1979) was heavily relied upon by the trial judge and both counsel on appeal.

On April 10, 1978, Jackie O’Neal Adams was injured in an automobile accident. Adams retained attorney Artice McGraw for legal representation. McGraw and Adams signed a contingent fee agreement. On May 9, 1978, Mr. Adams, through his attorney Mr. McGraw, filed suit against Walter D. Fisher and Redwing Carriers, Inc. McGraw filed some interrogatories, a request for admissions, took depositions, and directed correspondence to various individuals to determine certain facts in an effort to prepare the case for trial. On approximately September 21, 1978, Mr. Adams notified Mr. McGraw that he had decided to discharge him, apparently without cause. On that same date, Mr. Adams consummated a contingent fee agreement with attorney John L. Myrick. This agreement contained a clause providing for a fee equal to one third of the recovery, if the case was settled out of court.

Attorney McGraw filed a motion to establish an equitable charging lien on the proceeds of any settlement or award which was granted. Shortly thereafter, an out-of-court settlement for $60,000 was reached. Under the Myrick-Adams agreement, Mr. Myrick was to receive one third or $20,000 of this amount. In January of 1980, the trial judge conducted a hearing to determine the amount of fees to award attorney McGraw. Mr. McGraw presented expert testimony arguing that his work was worth at least 40% of the $20,000 fee, or $8,000. The 40% recovery was based on attorney McGraw’s securing of the medical report indicating Mr. Adams’ disability. This was characterized as a cornerstone of the case. Mr. Myrick presented expert testimony indicating that first attorney McGraw was entitled to compensation for between eighteen and twenty hours of work at a rate of $55 per hour, or a maximum of $1,100.

The parties agreed that whatever amount was to be awarded would have to be based on a quantum meruit basis. The trial judge so found and awarded Mr. McGraw $4,000, but the fees were ordered to be paid out of Mr. Myrick’s contingency fee. This order superseded the earlier order establishing a lien for attorney McGraw’s fees against the amount recovered by judgment or settlement. The Appellants in this case, represented by Mr. Myrick, have presented two issues. They contend the court erred in awarding Mr. McGraw’s fees as a part of Mr. Myrick’s total contingency fee, and that the court erred in not awarding a substantially lesser amount than $4,000.

Initially, we note that Mr. Adams had the absolute right to discharge his attorney, Mr. McGraw, at any time with or without cause despite the existence of a contingent fee agreement. A client has the right to discharge his counsel at any time. Levin v. Rosenberg, 372 So.2d 956, 958 (Fla. 3rd DCA 1979) reh. denied; Sohn v. Brockington, supra, at 1093 (Fla. 1st DCA 1979) reh. denied. “The reason for discharge is simply not relevant .. . since it is an implied condition of the contract that the client may terminate at will.” Sohn, supra, at 1093.

Upon discharge, the attorney has no right to collect his contingent fee. His fee is to be determined on a quantum meru-it basis. Sohn, supra, at 1093. To allow the discharged attorney to collect his contingent fee would be inequitable. It might cause the client to pay an excessive fee without receiving the full benefits of counsel in violation of the Florida Code of Professional Responsibility DR 2-106(A). This is demonstrated by the case of Rhoades v. Norfolk & Western Railway Co., 78 Ill.2d 217, 35 Ill.Dec. 680, 399 N.E.2d 969 (Ill.1979). Rhoades was injured while working for a railway company. He signed a 25% of recovery contingent fee agreement with an attorney to sue the railway company. Later the same day, he contacted the attorney and, without giving any reason, announced that he had decided not to sue. The attorney attempted to collect the 25% fee even though the only apparent work he had completed on the case was the completion of the form contingent fee agreement. A 25% fee for the discharged attorney in Rhoades would have been excessive.

The discharged attorney has the option of collecting his fee immediately based upon a quantum meruit basis or deferring his attempts to collect his fee until completion of the underlying litigation. Sohn, supra, at 1094. If he waits until completion of the litigation, his recovery could still be based on quantum meruit or on a percentage basis utilizing quantum meruit principles. The court would view the discharged attorney’s impact on the actual outcome of the litigation, and this becomes an essential factor which must be considered in determination of his fee. Id. The court must fix the fee on a quantum meruit basis and may not fix it on a percentage basis, if the client objects to the percentage lien. Sohn, supra, at 1094.

In the ease under consideration, Mr. McGraw opted to wait until’completion of the underlying tort action. At the completion of the trial, a fee of $4,000 was fixed by the trial judge. The trial judge based his order on the principles of quantum me-ruit. It has been stated that “the fee fixed must bear a just relation to the prevailing philosophy with reference to the value of the lawyers’ services and must bear some relation to the results secured.” Levin, supra, at 958. Additionally, the trial court must consider the impact that the discharged attorney’s work had on the case.

An appellate court’s function in reviewing an award of fees is to determine that the trial judge did not abuse his discretion and that his decision is based on substantial competent evidence. Sunrise v. West Broward Utilities, 311 So.2d 175 (Fla. 4th DCA 1975) reh. denied; Stadler v. Miami Bank & Trust Co., 100 Fla. 1658, 132 So. 648 (1931); Accord Tobias v. King, 84 Ill.App.3d 998, 40 Ill.Dec. 400, 406 N.E.2d 101, 104 (1980) (case involves contingency contract). We note that the trial judge specifically stated in his order that he considered the principles in Sohn v. Brockington, and the record. He heard expert testimony concerning the amount of fees and reviewed a detailed and explicit affidavit of services rendered by Mr. McGraw. He also was intimately aware of the work undertaken by all of the attorneys in this case, because he presided over all phases of the trial. We find that there was substantial competent evidence to support the award by the trial judge based on the test stated above.

However, it was error to assess the fee of the discharged attorney out of the fee recovered by the substituted attorney. Sohn, supra, at 1094. We noted in Sohn that:

The adoption of a rule limiting an attorney’s action exclusively to quantum me-ruit is unlikely to result in the wholesale discharge of attorneys by clients shopping for the least expensive fees. The clients who do so run the risk of being twice exposed to fees, once, to the discharged attorney for the reasonable value of services, which could conceivably be in excess of the contingent fee recovery, and again to the substituted attorney on the contract.

Id., at 1094.

Thus, the trial judge should have required Mr. Adams to pay Mr. Myrick his full contingent fee in accordance with their contract, and Mr. Adams should be required to pay Mr. McGraw for the quantum meruit value of his services. Such a rule insures the right of a client to discharge an attorney at any time with or without cause, but it also makes the client responsible for his actions. A client may end up paying fees in excess of the original contingent fee, once to the discharged attorney in quantum me-ruit and again to the substituted attorney on a new contingent fee contract. “Such payment, . . ., should certainly operate as a self-limiting factor on the number of attorneys so discharged.” Fracasse, supra, 6 Cal.3d at 791, 494 P.2d at 13-14, 100 Cal. Rptr. at 389-390. Although it was not done here, a client could contract to pay second attorney a contingent fee less the fee due first attorney.

Therefore, we affirm in part, but we reverse and remand to the trial judge for amendment of his order not inconsistent with this decision.

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

      . See, also Fracasse v. Brent, 6 Cal.3d 784, 791, 494 P.2d 9, 13, 100 Cal.Rptr. 385, 389 (1972), citing Martin v. Camp, 219 N.Y. 170, 114 N.E. 46 (1916). Inherent in the attorney-client relationship is the underlying foundation that holds that a client must rely almost entirely upon an attorney’s good faith in defending and protecting the client’s legal rights. Once the client’s good faith reliance is lost, for whatever reason, this should be sufficient cause for discharge of the attorney. Fracasse, Id.


text:
    Norman CLIVE, Jr., A. D. Holmes, Wayman P. Surcey, W. L. Buck, Vincent Canova and Allen Reddy, Appellants, v. Kenneth R. SCHROFF, Northeast Florida Area Local of the American Postal Workers Union AFL-CIO, Bulk Mail Center Local of American Postal Workers Union AFL-CIO, Appellees. NORTHEAST FLORIDA AREA LOCAL OF POSTAL WORKERS UNION AFL-CIO, Bulk Mail Center Local of American Postal Workers Union AFL-CIO, Appellants, v. Norman CLIVE, Jr., A. D. Holmes, Wayman P. Surcey, W. L. Buck, Vincent Canova and Allen Reddy, Appellees.
    Nos. UU-236, UU-300.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1980.
    David R. Lewis of Lewis, Paul, Isaac & Castillo, P.A., Jacksonville, for Norman Clive, Jr., A. D. Holmes, Wayman P. Sur-cey, W. L. Buck, Vincent Canova and Allen Reddy.
    Daniel D. Richardson, Jacksonville, for Northeast Florida Area Local of Postal Workers Union AFL-CIO, Bulk Mail Center Local of American Postal Workers Union AFL-CIO, and Kenneth R. Schroff.
   PER CURIAM.

AFFIRMED.

Pursuant to Fla.R.App.P. 9.400(b), Case No. UU-236 is remanded to the trial court for determination of appropriate attorney’s fees.

ERVIN, SHAW and WENTWORTH, JJ., concur.


text:
    Joan D. FLYNN, Appellant, v. Leo Michael FLYNN, Jr., Appellee.
    No. WW-78.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1980.
    T. Sol Johnson of Johnson, Green & Westmoreland, P. A., Milton, for appellant.
    David H. Levin of Levin, Warfield, Mid-dlebrooks, Mabie and Magie, P. A., Pensacola, for appellee.
   PER CURIAM.

Upon review of the record and briefs in this case, particularly considering the financial position of the parties, we determine that the trial judge’s award was within his broad scope of discretion and cannot be classified as unreasonable or arbitrary. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Affirmed.

McCORD, SHIVERS and JOANOS, JJ., concur.


author: DIXON, Chief Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Thomas GREEN.
    No. 67165.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 10, 1980.
    Dissenting Opinion Dec. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.

      Lloyd Frischhertz, New Orleans, for defendant-appellant.

      . “Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.” R.S. 15:493.

   DIXON, Chief Justice.

The defendant Thomas Green was charged by bill of information with armed robbery (R.S. 14:64). A first trial, held January 4,1979, ended in a mistrial because of jury deadlock. After a second trial on March 12, 1979, a jury of twelve found the defendant guilty as charged. He was sentenced to twelve years imprisonment at hard labor. Defendant appeals, giving nineteen assignments of error.

On July 24, 1978, at about 10:00 a. m., a young man entered Nicole’s One-Stop Grocery at 3145 Clouet Street, pointed a gun at the cashier, Betty Shipman, and demanded money. The robber emptied the cash register into a brown paper bag and fled. At about the same time, two New Orleans police officers, Officer Romallis Stukes and Sergeant Charles Hinton, were two blocks away from the store at the defendant’s residence, 3026 Metropolitan, investigating a robbery reported by the defendant the day before. The officers wanted to show Green photographs of suspects, but found no one home. They noticed that Green’s home had been ransacked and they stopped to ask a neighbor his whereabouts. They were about to enter their car and drive away when two men came from around the corner running in their direction. One turned and ran down an alley, but the other, who was carrying a brown paper bag, ran onto the porch of a house three or four houses down from where the policemen were standing. The police approached him, identified themselves and asked him his name and why he was funning. The man told them he was Green and said there was no particular reason for his running. He stated that he had just come from the store where he had cashed his mother’s check. He then said that he had cashed his check, then that he was going to cash his check. At one point, in response to the question, “What’s in the bag?” Green dropped the bag. Officer Stukes testified that the bag opened when it fell and he could see that it contained a lot of balled up money, food stamps and paper, just by peering into it. When asked about the other person who was running with him, Green denied any knowledge of him. The officers then asked Green to get in the car and go back where he came from to find out what was going on. Green claimed that he was forced into the car, but the officers pointed out that the back doors were never locked. As they drove around the corner they noticed a small crowd in front of the grocery store. Learning that the store had been robbed, the police asked Ms. Shipman to look at Green in the car. She identified him as the robber, but at the trial could not identify him, and admitted that her on-the-scene identification was not certain. The police then advised Green of his rights and told him he was under arrest.

Assignments of Error Nos. 1, 2 and 4

Defendant contends that the trial court erred in failing to suppress evidence seized from him, statements made by him and an identification made by the victim under suggestive circumstances. He argues that since the police had no right to stop and question him, all evidence and statements obtained were inadmissible at trial. In response to the state’s characterization of the stop as a “field interview,” defense counsel cites Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), in support of his contention that the police had no right to approach the defendant. In Brown, the United States Supreme Court reversed the conviction of a defendant who was arrested for failing to identify himself when stopped by the police. A Texas law made it a crime for a person to refuse to give his name and address to a policeman who lawfully stopped and requested the information. The Supreme Court held that: “When the officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment.” 443 U.S. at 50, 99 S.Ct. at 2640, 61 L.Ed.2d at 361. The Court found no circumstances preceding the officers’ detention of the defendant creating a reasonable suspicion that he was engaged in criminal conduct. The officers had stated that the man looked suspicious, but they were unable to point to any facts supporting that conclusion.

Here, the officers did not suspect defendant Green of any crime at the time that they first approached him. Officer Stukes testified:

“... we wanted to know why he was running, what was the problem.
We didn’t suspect him of anything at the time.
... it was out of curiosity to see just what was happening.”

This court has stated in State v. Shy, 373 So.2d 145, 147 (La.1979) that:

“... police officers do not need probable cause to arrest or reasonable cause to detain each time they attempt to converse with a citizen. The mere fact that the police approach a citizen and address him does not compel that citizen to respond to the inquiries or comply with their requests; legally, nothing prevents his choosing not to answer and walking away.... ”

The officers here, unlike those in Brown, did not try to compel the defendant to answer their questions. There is no indication in the record that Green was reluctant to identify himself or that he refused to answer the policemen’s questions. Moreover, there were circumstances preceding the stop which justified the questioning. While the officers did not suspect Green of criminal activity initially, their curiosity was piqued by the sight of the two young men running. Officer Stukes, who was familiar with the area, testified that this was unusual activity for the time of day. The officers had come to the area to investigate a robbery reported by Green; they had found his house open and ransacked. They were attempting to locate him when they saw the men approaching, and it was reasonable for them to speak to the defendant when they found out that he was the man they were seeking. Once he began to speak, his nervousness and contradictory responses aroused their suspicions; these suspicions were further increased when he dropped the bag and they discerned the money and papers in it. This court has recognized that police officers cannot arbitrarily and capriciously infringe on an individual’s right to be left alone; they “cannot actively create ‘street encounters’ unless they have knowledge of suspicious facts and circumstances ...” State v. Saia, 302 So.2d 869, 873 (La.1974). In this case the police did not actively create an encounter or unjustifiably intrude on the defendant’s privacy. The initial questioning was lawful, and the evidence was admissible. If the dropping of the sack of money was an abandonment, it could be lawfully seized. State v. Ryan, 358 So.2d 1274 (La.1978). If the dropping was accidental, the police had the right to look at the open sack of money and papers, and prudence required further inquiry. See State v. Mitchell, 344 So.2d 1026 (La.1977).

Defendant further contends that his answers to the police inquiries were inadmissible because he was not informed of his Miranda rights or of his rights under C.Cr.P. 218.1. There was no custodial interrogation until after defendant was identified at the store, at which time defendant was given the Miranda warnings. Therefore, the conversation between the police and defendant was admissible.

Defendant also alleges that Ms. Shipman’s identification of him should have been suppressed, as it was made under suggestive circumstances and in a custodial setting. The cashier never made a positive identification of the defendant so there was no real identification to suppress. The cashier said at both the motion to suppress hearing and at the trial that she was not sure that Green was the man who robbed her.

These assignments lack merit.

Assignment of Error No. 3

Defendant contends that the trial court erred in permitting statements made by him to the police at the time of the initial stop to be introduced into evidence at the trial, because the state failed to give written notice of its intent to use such statements, as required by C.Cr.P. 768. Defense counsel admits that he did get such notice before the first trial, but he argues that the absence of notice at the second trial caused him to change his trial strategy to the prejudice of defendant.

In State v. Hills, 337 So.2d 1155 (La.1976), this court held that article 768 did not require a second notice reiterating the state’s intention to use inculpatory statements and that defendant was not prejudiced by the state’s failure to reiterate the notice previously given. In this case, there is no indication that the failure to give the second notice substantially prejudiced defendant’s case.

This assignment is without merit.

Assignment of Error No. 5

The defendant claims that the trial court erred in sustaining the prosecutor’s objection to defense counsel’s opening statement. The state’s objection was that defense counsel was going beyond the scope of an opening statement by telling the jury that the state would not be able to prove the guilt of the defendant.

The trial judge’s ruling may have been unduly restrictive on defense counsel, but the record does not indicate that the defendant’s right to a fair trial was substantially prejudiced by the ruling.

This assignment lacks merit.

Assignments of Error Nos. 6 and 7

Defendant alleges that the verdict was contrary to the law and the evidence. He asserts that no rational trier of fact could have found, on the basis of the evidence presented, that defendant was guilty of the crime charged beyond a reasonable doubt, or that he was armed with a dangerous weapon, an essential element of the crime of armed robbery.

The defendant was found running with a bag containing money and papers stolen in an armed robbery. The store owner testified that $298.00 and some change was taken in the robbery; that was the amount found in the defendant’s possession. A receipt found in the bag was identified by the store owner as belonging to the store. The cashier said she was robbed at gunpoint by a young black man who was not wearing a shirt. The defendant had no shirt on. The defendant’s only explanation was that another man had dropped the bag while trying to jump a fence and he had picked it up; the men then chased him around the corner. The jury apparently did not find this to be a reasonable hypothesis of innocence. The evidence supports a finding of guilt beyond a reasonable doubt.

These assignments of error lack merit.

Assignments of Error Nos. 8 and 9

Defendant contends that the trial court should not have let Officer Stukes testify about the defendant’s conversation with the police because it constituted hearsay. (R.S. 15:434). At trial defense counsel objected to the admission of the remarks but did not specify a ground for his objection. Thus, the argument that the testimony includes hearsay is new and is not properly before this court. Grounds for objection must be stated at the time of the ruling and matters not urged at trial cannot be urged for the first time on appeal. (C.Cr.P. 841). Defense counsel alleged in a previous assignment of error that the statements were inculpatory; so characterized, they would be admissible as a recognized exception to the hearsay rule. State v. Trull, 382 So.2d 960 (La.1980); State v. Godeaux, 378 So.2d 941 (La.1979).

These assignments lack merit.

Assignment of Error No. 10

Defense counsel contends that the trial court erred in sustaining the state’s objection to his cross-examination of Officer Stukes. The grocery store owner, Ms. Carroll, had testified that $298.00 and some cents had been taken in the robbery. In an attempt to impeach her testimony, defense counsel asked Officer Stukes how much money Ms. Carroll had reported stolen.

The state argued that the defense did not lay a proper foundation for impeaching Ms. Carroll’s testimony because it never asked her whether or to whom she had made a report. Even if the statement was improperly excluded, the error was harmless as the matter was not crucial to determination of the defendant’s guilt or innocence. The exact amount of money taken was not a critical issue; rather, a receipt made out to the grocery which was found in the bag linked the bag with the robbery.

This assignment is without merit.

Assignment of Error No. 11

Defendant argues that the prosecution’s redirect examination of Officer Stukes raised issues that were prejudicial. Defense counsel specifically objected to testimony that the person running behind the defendant was found hiding under a house and was arrested. He claims that this testimony was designed to implant in the jury’s mind the idea that the second man was guilty and that the defendant was guilty by association.

As the state notes, defense counsel had already questioned Officer Stukes extensively about this second man during his cross-examination and tried to suggest that the second person was chasing rather than running with the defendant. Therefore, the state’s questioning was not improper in its scope. (R.S. 15:281). Moreover, as the state points out, the information that the second man had been arrested was not necessarily prejudicial to the defendant. It could have helped his case by suggesting that another suspect had been found in the neighborhood or by corroborating the defendant’s story that he had merely picked up the bag when it was dropped by one of two men who were trying to jump a fence and that he was then chased by one of them. The arrest of the second person was also relevant to the defendant’s allegation that he did not know the person running behind him. This court has consistently held that the trial judge is vested with wide discretion in determining the relevance of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Drew, 360 So.2d 500 (La.1978); State v. King, 355 So.2d 1305 (La.1978). There is no indication that the trial court abused its discretion here.

There is no merit in this assignment.

Assignments of Error Nos. 12 and 13

Defense counsel contends that the trial court erred in not excluding argumentative and prejudicial statements made by the prosecutor during her cross-examination of the defendant. Defense counsel particularly objected to the prosecutor’s comment, “All right, which is right, what you are telling us now, or what you told people then?” Defendant had made contradictory statements as to when he first learned that a robbery had been committed and the prosecutor was trying to find out which statement was correct. While much of the prosecutor’s cross-examination was aimed at impeaching the defendant, it did not contain any particularly prejudicial or inflammatory remarks.

Defense counsel also alleges that the trial court erred when it permitted the state to read from the transcript of the first trial a portion of defendant’s statement regarding a gun. However, defense counsel does not argue this error, and an examination of the statement does not suggest that it was prejudicial or inappropriate. Moreover, the trial court stopped the prosecutor and informed her that a proper foundation had not been laid and the issue was dropped.

These assignments of error lack merit.

Assignment of Error No. 14

Defendant contends that the trial court improperly allowed the prosecutor to cross-examine him regarding his association with the other person arrested in the robbery investigation. Defendant’s objection that the testimony was irrelevant was overruled. The questioning was intended to clarify the defendant’s claim that he did not know the other person running behind him and to impeach him by showing that he had made prior inconsistent statements. The trial court did not abuse its wide discretion in determining that the testimony was relevant.

This assignment is without merit.

Assignment of Error No. 15

Defendant argues that the trial court erroneously prohibited him from impeaching state’s witness Ms. Carroll when she was called by the state in rebuttal. The defendant had stated that he had never been in Nicole’s One-Stop Grocery before the robbery. Ms. Carroll then testified that she had seen the defendant in the store on two occasions before the robbery. When defense counsel tried again to raise the issue of how much money Ms. Carroll had reported as stolen, the state objected that this was improper cross-examination on rebuttal. The court sustained the exception and told defense counsel to limit his cross-examination to the matter discussed on rebuttal. The control of evidence presented on rebuttal is within the sound discretion of the trial judge, State v. Hills, 354 So.2d 186 (La.1977), and there was no abuse of discretion here.

This assignment lacks merit.

Assignment of Error No. 16

Defendant contends that the trial court erred in allowing the state, over defense counsel’s objections, to present matters in its closing rebuttal arguments which were not raised by the defense in its closing argument. (C.Cr.P. 774). Defense counsel specifically objects to a remark by the prosecutor that Officer Stakes was very conscientious in trying to locate the defendant regarding the robbery he had reported.

Since a full transcript of defense counsel’s closing argument is not included, it is impossible to determine if the statement exceeds the scope of proper rebuttal. However, even if the comment went beyond the permissible scope, it does not appear so prejudicial as to constitute reversible error. The prosecutor’s comment was a permissible inference from Officer Stakes’ testimony and does not justify reversal.

This assignment is without merit.

Assignment of Error No. 17

Defendant asserts that the prosecution for armed robbery was improperly initiated by bill of information rather than by grand jury indictment. He argues that a possible ninety-nine year sentence without benefit of probation, parole, or suspension of sentence is tantamount to life imprisonment and therefore the charge should be instituted by grand jury indictment. In State v. Williams, 341 So.2d 370 (La.1976), this court considered this matter and held that the institution of a prosecution for armed robbery by bill of information is proper. Defense counsel contends that the Williams decision is wrong and violates Article 1, § 15 of the Louisiana Constitution of 1974; however, he offers no new considerations to persuade this court to change its opinion.

This assignment has no merit.

Assignment of Error No. 18

Defendant states that his conviction by a non-unanimous jury is unconstitutional. He argues that the United States Supreme Court decision in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), holding that a conviction by a non-unanimous six person jury for a non-petty offense violates an individual’s right to trial by jury, also applies to twelve person juries. He contends that C.Cr.P. 782 is unconstitutional. The United States Supreme Court’s opinion in Burch is specifically limited to six person juries. That court has upheld the validity of non-unanimous verdicts for twelve person juries in Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) (nine-three verdict) and Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (ten-two verdict). This court has also held that the Louisiana jury rule violates neither the Sixth nor the Fourteenth Amendments. State v. Hodges, 349 So.2d 250 (La.1977); State v. Morgan, 315 So.2d 632 (La.1975).

This assignment lacks merit.

Assignment of Error No. 19

Defendant contends that the sentence of twelve years imprisonment is excessive and was imposed without proper regard to C.Cr.P. 894.1. That article establishes guidelines designed to help the courts “adapt the sentence to the offender as well as the offense.” State v. Jackson, 360 So.2d 842, 844 (La.1978). This court has held that where a judge imposes a sentence without adequately complying with the requirements of article 894.1, the sentence will be vacated and the case remanded for resen-tencing. State v. Touchet, 372 So.2d 1184 (La.1979); State v. Cox, 369 So.2d 118 (La.1979).

In this case, the trial judge stated that he had ordered and reviewed a presen-tence investigation report. This report revealed that there had been no charges against the defendant as a juvenile and no convictions against him as an adult. He noted a charge of burglary had been brought against the defendant in California but there was no disposition in the case. The judge said that the presentence report indicated to him that the defendant should be incarcerated for a substantial length of time. He said that he was taking into consideration letters recommending mercy from two ministers and the assistant principal of the defendant’s high school in imposing a sentence of twelve years imprisonment. He stated that a lesser sentence would deprecate the seriousness of the crime. We find that the sentence is appropriate and that the trial judge adequately complied with the requirements of C.Cr.P. 894.1.

Defendant’s conviction and sentence are affirmed.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent. When the police officers placed Thomas Green and the bag he had been carrying in the police car without Green’s consent, there unquestionably occurred a seizure for Fourth Amendment purposes. See Dunaway v. New York, 442 U.S. 200, 207, 99 S.Ct. 2248, 2253, 60 L.Ed.2d 824 (1979); Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). It is clear that the seizure was more than a Terry stop and could be supported only by probable cause. Dunaway v. New York, supra, 442 U.S. at 216, 99 S.Ct. at 2258.

      . “The redirect examination must be confined to the subject matter of the cross-examination and to the explanation of statements elicited on cross-examination; but the application of this rule is within the discretion of the trial judge, provided that the opportunity be not denied to recross on the new matter brought out on the redirect.” R.S. 15:281.

      . “A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” C.Cr.P. 894.1.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Benjamin RAMOS.
    No. 67344.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., David R. Paddison, Louise S. Korns, John L. A. Lenfant, IV, Asst. Dist. Attys., New Orleans, for plaintiff-ap-pellee.
    William P. Schuler, New Orleans, for defendant-appellant.
   DENNIS, Justice.

Defendant was charged and convicted of attempted first degree murder in violation of La.R.S. 14:27 and 14:30. He was sentenced to serve twenty years at hard labor. Se now raises seven assignments of error. We find none of his assignments meritorious and accordingly affirm his conviction. However, because of the trial judge’s failure to state for the record the considerations and the basis for the imposition of the sentence in accordance with La.C.Cr.P. art. 894.1(6) we must set aside the sentence and remand the case for resentencing.

On January 17,1978, a uniformed private security officer entered the Crystal Restaurant in New Orleans and was informed by one of the waitresses that the defendant, an occasional customer, was armed with a gun. The officer requested the defendant, Benjamin Ramos, to accompany him outside. The state witnesses testified that once outside, the defendant pulled a gun on the officer. The defendant, after initially misfiring, allegedly shot first at the officer who thereupon returned fire wounding the defendant. The defendant testified that he was never armed and was shot by the officer without provocation. The testimony of all the other witnesses supported the officer’s version of what transpired. Two guns were recovered by the police who were soon on the scene, and the other physical evidence also supported the state’s case.

The defendant raises three assignments of error regarding the allegedly improper selection of the petit jury venire. He first contends that Article 784 of the Code of Criminal Procedure was violated in that the selection of the petit jury venire did not take place in open court. Secondly, if the prosecution complied with Article 784, he challenges that article’s constitutionality on several grounds. Thirdly, he contends that his right to be present when the jury was “called” under Article 831(3) was violated. We decline to reach the merits of his three objections to the manner in which the petit jury venire was chosen because he failed to object timely. The proper procedural vehicle for alleging that the petit jury was improperly drawn is the motion to quash. La.C.Cr.P. art. 532(9). State v. Collins, 359 So.2d 174 (La.1979); State v. Durr, 343 So.2d 1004 (La.1977). Such objections can not be raised by a motion in arrest of judgment nor for the first time upon appeal. These assignments lack merit.

The defendant complains in assignment number four that he was not allowed to testify regarding his prior convictions on direct examination. Since the defendant was the sole defense witness, his testimony and credibility were vitally important to his case. His counsel attempted to have the defendant forthrightly admit his prior convictions to lessen the probable negative impact such revelations would have on cross-examination by the state. The state’s objection that the defense attorney was impeaching his own witness in violation of La.R.S. 15:487 was sustained by the trial judge. Clearly this was not an attempt to impeach the defendant’s credibility, just the opposite. Surely, the defense hoped that this forthright volunteering of damaging information would indirectly bolster the defendant’s credibility in the eyes of the jury. A more appropriate statutory basis for the state’s objection is La.R.S. 15:484-testimo-ny to establish the credibility of a witness is not admissible until that credibility has been attacked. Even assuming that the trial judge erred in sustaining the state’s objection, however, no substantial rights of the accused were affected. La.C.Cr.P. art. 921. This assignment lacks merit.

The defendant in assignment number five complains of prejudice suffered due to the prosecutor’s reference to his convictions for municipal offenses. The defendant admitted that he had been in municipal court “for tickets and being drunk.” The record does not indicate a contemporaneous objection by the defense, but defense counsel maintains that he did object and that the trial judge sustained the objection. It does not appear that the defendant has a valid complaint since the court ruled in his favor and no request for an admonition or mistrial was made. The trial judge was clearly correct in curbing the state’s inquiry into municipal offenses. A municipal offense is not a crime within the meaning of La.R.S. 15:495, which provides that “[ejvidence of conviction of crime” is admissible for impeachment of a witness’s credibility under prescribed circumstances. Crime is defined in La.R.S. 14:7 as “that conduct which is defined as criminal in this Code, or in other acts of the legislature, or in the constitution of this state.” It was intended to exclude from the designation “crime” all offenses established by municipal ordinances. See Reporter’s comment, L.S.A.-R.S. 14:7. This assignment lacks merit.

In assignment number six, the defendant argues that the court erred in not reducing its charge to writing and refusing to give the requested instruction on circumstantial evidence. The defense timely filed a motion for written charges. The minutes reflect that the judge ordered the charge to be taken by the court reporter. Article 801 of the Code of Criminal Procedure contains mandatory language giving the court no discretion to deny a timely request for written charges. There is nothing in the record, however; to show that the judge did not accede to the defense counsel’s request to reduce the charges to writing or that a copy of the charges were not timely delivered to the defense. Further, there was no objection by the defendant to any alleged denial by the court. Neither was there an objection to the content of the charges ultimately given to the jury. We decline to presume whether the trial judge failed to comply with the requirement of Article 801 in the absence of supporting evidence in the record or allegation of possible prejudice to the defendant.

As to the defendant’s assignment that his request for special charges was denied, we find that it too lacks merit. The minutes show that both requests for special charges by the defense were granted. Again the defendant failed to object to the court’s charges nor does he now contend that the court’s instruction in any way misstated the law. This assignment is meritless.

Lastly, the defendant alleges that the trial judge failed to follow the sentencing guidelines of La.C.Cr.P. art. 894.1, and in so doing, imposed an excessive sentence. The defendant was sentenced to twenty years at hard labor. The maximum sen* tence for attempted first degree murder is fifty years at hard labor. La.R.S. 14:27. The defendant had a prior criminal record. While the sentence does not appear to be manifestly excessive, we are unable to review the defendant’s argument fully because of the trial judge’s failure to articulate for the record his reasons for imposing the sentence. Article 894.1(C) (Supp.1977) entitles the defendant to such an articulation and represents a legislative attempt to guide the trial judge in thoughtfully imposing an appropriate sentence under the facts and circumstances of the particular case. See State v. Ortego, 382 So.2d 921 (La.1980). Also this serves as an important aid to this Court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Sepulvado, 367 So.2d 762, 769 (La.1979). We must remand for the trial court’s resen-tencing and articulation under Article 894.1.

Decree

Accordingly, defendant’s conviction is affirmed, but the sentence imposed is vacated and set aside, and the case is remanded to the district court with instruction to the trial judge to resentence defendant in accordance with Article 894.1.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.

CALOGERO, J., concurs; would simply affirm the conviction and sentence.