text:
    Louise WILLIAMSON, Appellant, v. Jean KIRBY, Guardian of person and property of Mae W. Yearwood, a physical and mental incompetent, Appellee.
    No. 79-296.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1980.

      Robert E. Pyle, Lake Alfred, for appellant.
    No appearance for appellee.
   GRIMES, Chief Judge.

This is an appeal from a judgment cancel-ling a deed executed by Mae Yearwood which conveyed a remainder interest in her home in Ft. Meade to Louise Williamson. The nature of the case and most of the pertinent evidence can be gleaned from a reading of the trial court’s findings.

On October 14, 1976, Mae Yearwood, a 90 year old widow, conveyed her home in Fort Meade, to the Defendant, Louise Williamson, reserving a life estate to herself. In October, 1977, Mrs. Yearwood was declared incompetent due to senility and Plaintiff, Jean Kirby, was appointed her guardian. In this capacity, Mrs. Kirby brought this action, alleging that a confidential relationship existed between the parties to the deed; that the deed was without consideration; that Mrs. Yearwood was incapable of understanding the matter, extent and effect of the deed; that the Defendant was guilty of fraud and had exercised undue influence upon the grantor.
Mae Yearwood and Louise Williamson were close friends and neighbors for many years. The older lady could not drive and due to age and infirmity frequently needed assistance with her every day tasks. Mrs. Williamson was very helpful, caring for her when ill and aiding her in many ways, not the least of which was furnishing companionship and friendship.
In the Fall of 1976, Mrs. Yearwood was mentally competent, capable of understanding transactions and the effect of her acts. However, she had become forgetful and was easily confused. She relied upon Mrs. Williamson for aid and advice. She had no regular attorney.
She became angry at and mistrustful of members of her own family, none of whom lived in Florida, when one of them transferred her savings account to an out of State bank. When later she learned that a local real estate broker had shown her home to a potential buyer, she became frightened for her security and decided to convey her home to Mrs. Williamson.
There was no evidence of her receiving outside, independent advice from an attorney or other adviser other than Mrs. Williamson, prior to making her decision.
Although the testimony of Mrs. Williamson was to the contrary, the Court finds that Mrs. Williamson was the one who suggested attorney Edward Flood as he had recently represented her; that she made an appointment for them to see Mr. Flood; that she was present and participated in the conversation with him and that she assisted in concluding the transaction. Mr. Flood visited with Mrs. Year-wood sufficiently to satisfy himself as to her competence but was not consulted as to the advisability of the conveyance or as to alternative ways to prevent sale of her home. Mrs. Williamson then carried Mrs. Yearwood to the Courthouse to record the deed. There was no evidence of efforts by Mrs. Williamson to keep the transaction secret from Mrs. Yearwood’s family but neither did she tell them of the gift.
The conveyance was an outright gift with no future obligations by Mrs. Williamson for continued care or obligation to Mrs. Yearwood.
The Court further finds: That a confidential relationship existed between Mrs. Yearwood and Mrs. Williamson; that Mrs. Williamson fostered and encouraged the idea of conveying the property to her; and that she did exert an undue influence upon Mrs. Yearwood.
The same conclusion is reached regardless of whether a presumption of undue influence from the confidential relationship is invoked. Without the presumption the greater weight of the evidence established undue influence in the execution of the deed.

The court’s reference to the presumption of undue influence arising from a confidential relationship finds its basis in the legal principles set forth in the case of In re Estate of Carpenter, 253 So.2d 697 (Fla.1971). Carpenter involved the execution of a will but later cases have applied the same principles to inter vivos gifts. Majorana v. Constantine, 318 So.2d 185 (Fla.2d DCA 1975); Pate v. Mellen, 275 So.2d 562 (Fla.1st DCA 1973) (on rehearing). According to Carpenter, where a person contests a will upon grounds of undue influence, he has the burden throughout the proceedings of proving undue influence. However, because of the difficulty of meeting that burden, the law raises a presumption of undue influence if (a) the contestant is able to establish a confidential relationship between the testator and the beneficiary and (b) the evidence shows that the beneficiary was active in the procurement of the will. If the contestant is successful in raising the presumption, the beneficiary then has the burden of explaining his active involvement in the preparation of the will. He does not have the burden of disproving undue influence. If the explanation is reasonable, the presumption vanishes and it becomes the court’s responsibility to determine whether the contestant has established undue influence by the greater weight of the evidence. Such evidence may include not only the evidence initially presented to raise the presumption but any additional evidence which the parties have introduced.

Applying these principles to the facts of this case, we believe that even though the evidence was conflicting, there was substantial competent evidence to support the court’s conclusion that a confidential relationship existed and that Mrs. Williamson was active in the procurement of the conveyance. Thus, the guardian did establish a presumption of undue influence. At this point, however, we find it necessary to depart from the court’s conclusions. Mrs. Williamson’s reasons for being involved in the activities surrounding the conveyance were certainly, reasonable. Mrs. Yearwood was unable to get around by herself, and Mrs. Williamson lived next door and took care of most of her physical requirements. Further, Mrs. Williamson said she took Mrs. Yearwood to the lawyer for him to prepare the deed because Mrs. Yearwood asked her to. While this evidence may not have disproved undue influence in and of itself, it certainly provided the credible explanation required by Carpenter to dispel the presumption of undue influence.

We are then left with the question of whether the evidence as a whole was sufficient to support a finding of undue influence. As reluctant as we are to interfere with a trial judge’s finding of fact, we simply cannot find enough evidence in this record which together with all reasonable inferences to be drawn therefrom would support the conclusion that Mrs. Year-wood’s conveyance of her home was the product of undue influence exerted by Mrs. Williamson.

There is no indication that Mrs. Williamson ever took advantage of Mrs. Yearwood. In fact, the evidence suggests the contrary. Mrs. Yearwood and Mrs. Williamson had been friends and neighbors for many years. At one point Mrs. Yearwood gave Mrs. Williamson a power of attorney to take care of her affairs if she become ill, but Mrs. Williamson never sought to exercise any authority under the power. When Mrs. Year-wood suffered a stroke two months after the execution of the deed, Mrs. Williamson actually took her into her home. The only shadow of suspicion upon Mrs. Williamson which we can detect is in the court’s finding that despite her statement to the contrary, it was Mrs. Williamson who selected attorney Flood to prepare the deed. We find this discrepancy to have little importance particularly when we consider Mr. Flood’s testimony in depth. Flood first explained that he had known Mrs. Yearwood for about fifty years since she had taught him in the seventh grade. Then, as to whether Mrs. Yearwood was executing the deed of her own volition, Flood said:

Q. Mr. Flood, what did you do to determine whether Mrs. Yearwood had the presence of mind to know what she was doing?
A. Well, in the conversation which lasted probably an hour or two it was perfectly clear she knew what she was doing. She was as sharp as a tack.
Q. Now you have known her 50 years. Had she changed any substantially during the last few years?
A. No.
Q. Because of getting old?
A. No, no.
Q. Was there any hesitancy in your mind whether she knew the nature of what she was doing in executing the deed?
A. None whatsoever. She wanted to be sure that house was hers as long as she lived and then Mrs. Williamson’s. She didn’t want to go to a nursing home.
Q. You had known her enough years presumably you would have known if she in any way did not know what she was doing?
A. Yes, sir, I wouldn’t have done it if she had not been knowing what she was doing.

With respect to Mrs. Yearwood’s mentality, a psychiatrist who examined her six months after the execution of the deed in connection with a guardianship proceeding concluded that she was competent to manage her affairs even at that time. We also find it significant that Mrs. Yearwood reserved a life estate in the property. She did not deed away her home in fee simple thereby placing herself in a position of reliance upon the charity of others. For this ninety year old woman, the effect of the conveyance was the equivalent of leaving Mrs. Williamson the home in her will. There was nothing particularly unusual in this since Mrs. Yearwood’s husband had been dead for many years, she had no children, and none of her relatives lived in Florida.

While our courts must be vigilant to protect the aging against any form of overreaching, simply because an elderly person chooses to give her property to a friend instead of her relatives does not warrant cancelling the deed where as here there is no real proof of undue influence. Apropos to our conclusion, we refer to our opinion in Heasley v. Evans, 104 So.2d 854 (Fla.2d DCA 1958). That case involved a will rather than a deed, but the following quotation illustrates our understanding of undue influence.

Undue influence, as it is required for invalidation of a will,- must amount to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will. Mere affection, kindness, or attachment of one person for another may not of itself constitute undue influence.

104 So.2d at 857.

We reverse the judgment, and remand the case with directions to enter a judgment in favor of Mrs. Williamson.

SCHEB and OTT, JJ., concur.


source: Caselaw Access Project

author: OTT, Judge.

license: Public Domain

text:
    GEORGE FISCHER, LIMITED, Appellant, v. PLASTILINE, INC., and Liberty Mutual Insurance Company et al., Appellees.
    No. 79-403.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1980.

      William T. Atchley, Jr. and Mark E. Hun-gate of Fowler, White, Gillen, Boggs, Villa-real & Banker, P.A., St. Petersburg, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees.
   OTT, Judge.

Appellant is a Swiss corporation. It was served with process in the proceedings below by substituted service upon the Florida Secretary of State, under the provisions of Section 48.161 and 48.181, Florida Statutes. Its motion to quash the service was denied and it brings this appeal, claiming that certain irregularities in the service violated the statute. We affirm the order.

The record discloses that the process was duly served on the Secretary of State on April 4, 1978. On September 26, 1978, the required notice of such service, together with a copy of the process, was sent by certified mail, return receipt requested, in an envelope addressed to:

Mr. Hans Fry George Fischer, Ltd. 21751 West Nine Mile Road #232 Southfield, MI 48075

The letter was delivered to the Michigan address on September 29, 1978, where it was accepted and the return receipt was signed by one Win Hyde.

In support of its motion to quash, appellant presented the affidavit of one Hans R. Baumgartner, who declared that he is the President of George Fischer Corporation and “an employee” of George Fischer, Limited. He further averred (1) that 21751 West Nine Mile.Road, Suite 232 in South-field, Michigan is the home office of George Fischer Corporation, a totally separate' and distinct entity from George Fischer, Limited, (2) that the principal place of business of George Fischer, Limited is in Switzerland, and (3) that Mr. Hans Fry “does not maintain an office in the United States on behalf of George Fischer, Limited.”

Statutory provisions for substituted service of process are strictly construed. Esberger v. First Florida Business Consultants, 338 So.2d 561, 562 (Fla.2d DCA 1976). Accordingly, one who relies upon such service has the burden of proving its availability under the circumstances of his case. AB CTC v. Morejon, 324 So.2d 625, 627 (Fla.1976). Where one seeking to quash substituted service of process makes a prima facie showing of failure to comply with statutory directives, the burden of proof shifts to the party who invoked the long arm statute. Volkswagenwerk, Etc. v. McCurdy, 340 So.2d 544, 545-46[1] (Fla.lst DCA 1976). That burden can include an obligation “to show [the] connection between the defendant and the address to which [plaintiff] chose to send the letter containing process.” Green v. Nashner, 216 So.2d 492, 493[1, 2] (Fla.3d DCA 1968).

Applying those rules to the facts at bench, we think that when the face of a record reveals a mailing to a certain address, and a signed acceptance of that mail at that address, the party attacking the service bears a preliminary burden of establishing (1) that the addressee is not at that address and does not receive mail there, (2) the employment and duties (if known) of the person who accepted the mail, (3) that such person had no actual, implied or ostensible authority to accept mail for any addressee listed on the envelope in question , and (4) the circumstances under which mail for the addressee was accepted on the occasion in question.

Considered by that standard, appellant’s carefully-worded affidavit was clearly insufficient to make even a prima facie showing of failure to mail notice of service. Thus, the court below did not err in denying the motion to quash on that ground.

Appellant also calls our attention to the delay of almost six months before the notice of service was mailed. The statute directs such mailing “forthwith” after service upon the Secretary of State, and this court has held that a delay of only 34 days violated the statute. Paradis v. Cicero, 167 So.2d 248, 249[1] (Fla.2d DCA 1964).

Appellant did not urge this last ground in its motion to quash, and appellee objects to the attempt to raise it at this late date.

It is possible to find in the reported decisions a few general observations to the effect that jurisdiction of the person is a “fundamental” prerequisite to the validity of an order or judgment, and thus may be raised for the first time on appeal. See, e. g., Florio v. State, 119 So.2d 305, 309[3, 4] (Fla.2d DCA 1960). Close examination reveals, however, that in each such instance “subject matter” jurisdiction was in some way dependent upon personal jurisdiction over certain essential parties. We have found no case which would actually sanction deviation from the long-established rule that irregular service of process renders a decree merely voidable, and not void, so that failure to raise objection in the court from which the process issued operates as a waiver of such defect. Walker v. Carver, 93 Fla. 337, 112 So. 45, 46 (1927).

The order denying appellant’s motion to quash service of process is affirmed.

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

      . The motion to quash was accompanied by a motion to dismiss the complaint for failure to allege sufficient facts to show jurisdiction over appellant. That motion was granted with leave to amend. A similar motion with respect to the amended complaint was denied. On the ensuing appeal, this court affirmed without opinion (Case No. 79-848, October 3, 1979). Consequently, we are not concerned on this appeal with the question of the propriety of substituted service.

      . Here, there were co-addresses, Mr. Hans Fry and George Fischer, Limited. Appellant seems to believe that the notice and process referred to in § 48.161 must be sent to some officer of a corporation upon whom process may be served. We do not read the statute that way. It actually requires only that the documents be “mailed to the defendant”. Presumably, that can be done to any place in the world where postal service can provide a return receipt, which in the case of a corporate defendant can be signed by any clerical employee or agent authorized to do so.


author: SCHEB, Judge.

text:
    Rosalind RODGERS, Appellant, v. AUTO-OWNERS INSURANCE COMPANY, a corporation, Appellee.
    No. 79-609.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1980.
    Craig M. Spanjers of Stanley, Wines, Williams & Smith, Auburndale, for appellant.
    John W. Berry of Bernstein, Sherr, Hodges, Lancer & Vandroff, Sarasota, for appel-lee.
   SCHEB, Judge.

Appellant, Rosalind Rodgers, sued Auto-Owners Insurance Company, alleging that Auto-Owners breached its fire insurance contract by refusing to pay her claim for fire damages. At the conclusion of a jury trial, Rodgers moved for a directed verdict. The trial court denied her motion and the jury returned a verdict for Auto-Owners. Rodgers appeals contending the trial court erred in denying her motion. She argues that Auto-Owners failed to establish its defense that after her loss she made a material misrepresentation by denying knowledge of the origin of the fire. We agree and reverse.

In February 1977 a fire caused substantial damage to the building containing Rodgers’ residence and antique shop which were insured by Auto-Owners. Rodgers filed a claim, but Auto-Owners, after completing its investigation, refused to pay and Rodgers sued.

Although Auto-Owners did not interpose a defense of arson, it offered expert testimony of a state fire investigator that the fire was intentionally set. While it offered no direct evidence connecting Rodgers with the alleged arson, Auto-Owners produced circumstantial evidence which it contends was sufficient to enable the jury to conclude that Rodgers had knowledge of an impending fire. It maintained, therefore, that when Rodgers swore in her proof of loss that she had no knowledge of the origin of the fire that she made a material misrepresentation which voided coverage under the policy. Rodgers argues that the trial court erred in denying her motion for a directed verdict because the circumstantial evidence relied upon by Auto-Owners was insufficient as a matter of law to establish that she had knowledge of the origin of the fire.

Auto-Owners introduced evidence that Rodgers’ policy was scheduled to lapse for nonpayment of premium on the morning following the fire. In response to a notice from Auto-Owners that payment was due, Rodgers called her insurance agent on the day prior to the fire and obtained an extension of time to pay her premium. The insurance company , also established that in November 1976 and February 1977, Rodgers rented two large storage bins at a nearby warehouse and that a few weeks before the fire she placed a considerable number of items, including some of personal and sentimental value, in the bins. Further, Auto-Owners presented a witness who had helped Rodgers move items to the storage bins a few weeks before the fire. He testified that one bin was full following the move. Yet, Auto-Owners introduced photographs of the bin taken after the fire showing that it was not full. Additionally, the insurance company noted that Rodgers had apparently removed some of her personal papers from the building prior to the fire and that a few days after the fire she had negotiated a $1,000 bank loan. Auto-Owners next introduced a letter which Rodgers had written to her business partner about six weeks after the fire. In the letter Rodgers mentioned plans to rebuild the structure and to construct an addition to it. Finally, the insurance company showed an increase in the value of merchandise on hand at the store just prior to the fire.

Auto-Owners also emphasized two inconsistencies in Rodgers’ testimony which it considered crucial. First, Rodgers made a sworn statement to the company after the fire that she had not returned to her storage bins at the warehouse until about five months after the fire when she returned with adjusters for Auto-Owners. At trial, Auto-Owners called a clerk from the warehouse who testified that Rodgers had returned after the fire. Rodgers admitted that she may have gone to the warehouse after the fire but maintained that, if so, she had returned only to pay the rent and did not enter the bins. Second, Rodgers categorically denied burning any items at her premises in a pretrial discovery deposition. At trial Auto-Owners introduced a letter that Rodgers wrote to her business partner in April 1977 in which she asked him what she was to do with the “merchandise you forced me to discard, give away and burn up.” Rodgers treated this inconsistency as trivial, maintaining that she had merely burned some artificial flowers in the back yard at the premises.

Auto-Owners argues that the totality of these circumstances was legally sufficient to enable the jury to conclude that Rodgers had knowledge of the origin of the fire. Auto-Owners points to Rodgers’ concern that her policy might lapse. It adds that Rodgers’ securing a loan a few days after the fire indicates she was in financial difficulties and had reason to want the building burned so that she could collect on her policy with Auto-Owners. The insurance company argues that these facts, when coupled with her storage of a large quantity of goods shortly before the fire, create an inference that she knew that a fire would occur. It further contends that plans Rodgers referred to in her letter to her business partner were made in anticipation of the fire. It argues that these plans and Rodgers’ removal of many of her personal papers from the building prior to the fire strengthen the inference that she had knowledge of an impending fire. s,

Certainly the fact that Rodgers obtained an extension of her policy just prior to the fire is a suspicious circumstance. Nonetheless, this fact standing alone was not sufficient to establish Auto-Owners’ defense. Moreover, the jury could have inferred that Rodgers was in financial difficulty from her borrowing money shortly after the fire. Yet, it would have had to pyramid inferences to infer from this that she had knowledge that a fire was to occur. Such pyramiding of inferences is impermissible. See Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960). It is also not unusual for a person to borrow money after a disaster. It is noteworthy, however, that Auto-Owners presented no evidence that Rodgers was being pressed by creditors.

The circumstances relied upon by the insurance company do not prove that Rodgers -had knowledge that a fire was to occur. They are equally susceptible of other explanations. Hence, they do not prove Auto-Owners’ defense. Kendle v. Viera, 321 So.2d 572 (Fla.2d DCA 1975). For example, Rodgers, who considered herself a “pack rat,” said she had accumulated more merchandise than she could store at the premises. She testified that she was planning a formal opening of the store and had rented the nearby storage bins so she would have a quantity of items readily available. Moreover, at. trial Rodgers explained the alleged inconsistencies in her statements regarding the bins. She testified that she had been to the storage bins as recently as the day of the fire and had rearranged things. Further, the witness who testified the bin was not as full as before could not dispute this. Thus, the testimony regarding the bins was equally susceptible of the inference that Rodgers had rearranged them as of the inference that she had entered them since the fire and had lied.

With regard to the plans Rodgers mentioned in the letter to her business partner, she testified that they were plans for eventually enlarging the structure which she and her partner had discussed before the fire. As to the evidence that she had removed important documents from the building prior to the fire, Rodgers did lose a number of important papers in the fire including her deed, cancelled checks, and photographs.

Finally, while the inconsistencies emphasized by Auto-Owners go to Rodgers’ credibility, they are not material to her knowledge of an impending fire. For example, even if Rodgers did lie about not returning to the bins after the fire, this would not necessarily indicate that she had knowledge of the origin of the fire. It could just as likely reflect an apprehension that Auto-Owners would accuse her of removing items from the bins and then claiming that they were destroyed in the fire.

To establish its defense Auto-Owners had to prove that after the fire Rodgers knowingly and wilfully misrepresented facts material to the insurance company’s risk. United States Fire Insurance Co. v. Dickerson, 82 Fla. 442, 90 So. 613 (1921). The evidence presented by Auto-Owners was simply insufficient as a matter of law to prove that Rodgers had knowledge of the origin of the fire. Therefore, the court erred in failing to grant her motion for a directed verdict. Chrysler Airtemp v. Stevens, 346 So.2d 1236 (Fla. 2d DCA 1977); Budgen v. Brady, 103 So.2d 672 (Fla. 1st DCA 1958).

Auto-Owners presented an expert witness who established Rodgers’ loss at $26,680.70. In addition, Auto-Owners indicated in its brief that counsel stipulated to a damage figure which Auto-Owners would pay absent a valid contract defense. Counsel also stipulated that should the insurance company be found liable, interest at 6% per an-num would be added to the damage figure from the date of the proof of loss.

Accordingly, we reverse the judgment of the trial court and direct it to enter judgment in favor of Rodgers for $26,680.70, together with interest at 6% per annum from the date of the proof of loss.

GRIMES, C. J., and SHAFER, ROBERT T., Jr., Associate Judge, concur.

      . The policy provided that:
      [it] shall be void if whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.

      . Rodgers suggests that the trial court’s failure to instruct the jury as to the meaning of “material” may have caused the jury to conclude that she made “material” misrepresentations. In view of our opinion, we do not rule on this point.

      . Rodgers requests that we direct entry of a judgment for $26,680.70 so presumably the damage figure testified to by Auto-Owners’ witness is the stipulated figure.


author: PER CURIAM. BOOTH, Judge,

text:
    ALBERTSONS GROCERY AND DRUG STORE, Appellant, v. Donald JONES, Appellee.
    No. QQ-156.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1980.
    Bernard J. Zimmerman and Robert C. Barrett, of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    Gavin D. Lee of Nance, Cacciatore & Sisserson, Melbourne, for appellee.
   PER CURIAM.

AFFIRMED as modified:

WHEREFORE IT IS ORDERED

1. That the employer/carrier shall be responsible for providing the continued treatment of Dr. Hooshmand to the claimant together with related benefits as are reasonably required in the process of treatment and recovery from the injuries resulting from the compensable accident, from the date of the hearing forward in the manner and for the time provided by law.

2. I reserve jurisdiction for the determination of attorneys fees and costs.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    Ralph EVERLING, Appellant, v. HOLIDAY INN CLEARWATER CENTER and American Mutual Liability Insurance Company, Appellees.
    No. QQ-324.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1980.
    James M. Callan, Jr., Clearwater, for appellant.
    W. Robert Mann and David Paul Montgomery, of Mann & Fay, Bradenton, for appellees.
   PER CURIAM.

Affirmed.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: PER CURIAM.

text:
    Linda Joan JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-82.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1980.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Appellant Linda Joan Johnson was a juvenile at the time she committed an alleged offense of murder in the first degree. The juvenile division of the circuit court relinquished jurisdiction upon a finding: “That there is probable cause to believe that Linda Johnson did commit the crime of displaying or attempting to use a weapon while attempting or committing a felony in violation of Florida Statute 790.07, and the crime of First Degree Murder in violation of Florida Statute 782.04.” The appellant was tried in the criminal division of the circuit court on the charge of second degree murder. She was found guilty and sentenced to ten years in a state prison, with the provision that the final two years of the sentence should be served upon probation.

On this appeal, the appellant presents two points. The first urges reversal upon the argument that the criminal division lacked jurisdiction to try her because jurisdiction was relinquished for a trial for the crime of first degree murder, and she was actually tried for a separate crime of murder in the second degree. The second point urges error because of the trial court’s failure to sentence the appellant under the provisions of Section 39.111, Florida Statutes (Supp.1978), where the sentencing took place after the effective date of that statutory section.

The following chronology will be helpful to the understanding of the law applied. In October of 1977, the appellant, a 17-year old female, was arrested, and admitted to the stabbing of a man causing his death after he had followed her home at night and had ignored her requests to leave her alone. The appellant was arrested on a charge of first degree murder pursuant to the filing of a petition for delinquency. The State also charged her with the use of a weapon during the commission of a felony, and requested that the juvenile division waive its jurisdiction over her. After a hearing held on December 14, 1977, the juvenile division granted the State’s motion and transferred the cause to the criminal division of the circuit court. The State then determined that the charge of first degree murder was inappropriate and filed an information charging'the appellant with murder in the second degree. The trial in the circuit court’s criminal division commenced on September 27, 1978. No motion was made by the appellant to dismiss the information prior to trial, and the first mention of a possible defect in the order of transfer was pursuant to a motion to dismiss the information made just prior to the charge conference. The trial judge found the transfer of jurisdiction from the juvenile division sufficient. Thereafter, the same claimed defect was raised in a motion for arrest of judgment. This motion was also denied.

After the trial and before sentencing, the appellant requested that, in sentencing, the court apply the provisions of Section 39.111, Florida Statutes (Supp.1978). The trial court determined that the statute was not applicable because it became effective on October 1, 1978, and the criminal transaction for which the appellant was found guilty occurred in October of 1977.

It was held in State ex rel. Lugo v. Sepe, 296 So.2d 640 (Fla. 3d DCA 1974), that when a juvenile is charged by grand jury indictment with a violation of law punishable by death or life imprisonment (which charge is dismissed) and thereafter is charged by information with murder in the second degree, the criminal division of the circuit court lacks jurisdiction to try the juvenile on the lesser offense. In so holding, this court said:

“By § 39.02(5)(c), Fla.Stat., F.S.A., a juvenile charged by a grand jury indictment with violation of a Florida law punishable by death or life imprisonment is to be handled as if he were an adult, and not in the juvenile court jurisdiction. Here, however, the indictment by which he was so charged was dismissed, and the juvenile was charged with a different offense (second degree murder) by an information. In that circumstance the law does not provide for the juvenile to be treated as an adult . . [emphasis of the court]

In a similar case, E. H. N. v. Willis, 350 So.2d 829 (Fla. 1st DCA 1977), the Florida First District Court of Appeal held that a juvenile could not be tried by an adult court for alleged crimes committed while incarcerated for a prior violation of law for which jurisdiction had been transferred to the criminal division by the juvenile division because, with regard to the subsequent offenses, the juvenile division had not waived jurisdiction. "The court explained its holding as follows:

“. . .a child cannot be tried as an adult on a criminal charge unless the juvenile division has first waived jurisdiction and certified the case for trial as though the child were an adult. This is necessary as to a new criminal charge although the juvenile division has previously waived jurisdiction as to an earlier criminal charge and certified the case for trial as though the child were an adult.”

It is the appellant’s position that these cases are controlling in that it is the violation of law which is transferred and not the child. The language of the statute in effect at the time of the appellant’s transfer was Section 39.02(5)(a), Florida Statutes (1977). This section provides for the transfer of . . the case for trial.” The “case” at the time of the appellant’s transfer consisted of two violations of law: (1) murder in the first degree, and (2) the display of a weapon while committing a felony. Murder in the second degree is a lesser included offense of murder in the first degree. The case transferred, therefore, included murder in the first degree, as well as any lesser included offense on which a. court might find the appellant guilty. See Brown v. State, 206 So.2d 377 (Fla.1968).

We think this holding is not a departure from the law or the reasoning as set out in State ex rel. Lugo v. Sepe, supra, or E.H.N. v. Willis, supra. In each of these instances, the transferred case had been completed and the State attempted to initiate a new charge. In State ex reí. Lugo v. Sepe, the transfer was automatic because of the filing of a grand jury indictment, pursuant to Section 39.02(5)(c), Florida Statutes (1973). When the indictment was dismissed, that case was over. In E.H.N. v. Willis, the violations for which prosecution was attempted were new violations which had occurred after the transfer from the juvenile division. In neither instance could it be said that the “case” was transferred to the adult court.

We, .therefore, affirm the first point because jurisdiction of the case tried was effectively transferred to the criminal division of the circuit court.

The appellant’s second point argues that a statute changing the punishment prescribed should have been applied, and that because the statute became effective October 1, 1978, and the appellant was sentenced on January 3, 1979, the newly-enacted section was applicable. It has been decided that the prescribed punishment, for a criminal offense is a matter of substantive law. The judgment must be affirmed on this point upon authority of Castle v. State, 330 So.2d 10 (Fla.1976), which adopted the reasoning of the Florida Fourth District Court of Appeal in Castle v. State, 305 So.2d 794 (Fla. 4th DCA 1974).

Affirmed.

      . “If the judge finds, after a waiver hearing as provided in s. 39.09, that any child who is 14 years of age or older and who, if an adult, would be charged with a violation of Florida law should be tried as an adult, the judge may enter an order waiving jurisdiction and certifying the case for trial as if the child were an adult, and thereafter the child shall be subject to the jurisdiction of the appropriate court as if the child were an adult.”


text:
    FEDDERS DISTRIBUTING CORPORATION, Appellant, v. BIG FOUR INVESTMENT CORPORATION, Appellee.
    No. 79-842.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1980.

      Mateer, Harbert, Bechtel & Phalin and Steven R. Bechtel, Orlando, for appellant.
    Schuster & Stratton and Douglas D. Stratton, Miami Beach, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

The plaintiff appeals an order dismissing with prejudice Count III of its second amended complaint against defendant Big Four Investment Corporation.

The dismissed count alleges, inter alia, that on or about January 17, 1977, the defendant Big Four Investment Corporation entered into a “joint pay agreement” with the defendant Envirko Corporation, a copy of which is attached to the complaint. The record shows that the agreement was signed by Mr. Roswell Hahn, President of Envirko Corporation and it was the intention of Mr. Hahn and Mr. Fadoul to sign the joint pay agreement on behalf of their respective corporations and that each of them further intended that their respective corporations would be jointly and severally responsible for all payments due to plaintiff for air conditioning equipment being purchased from plaintiff.

Before answer, Big Four moved to dismiss Count III on the ground that the alleged agreement which was attached to plaintiff’s complaint was not excused by the defendant, Big Four Investment Corporation, in such a place on the document that would make Big Four liable under said document; therefore, there is no agreement upon which Count III of the second amended complaint can ever state a cause of action. The trial court agreed with such contention and entered the order dismissing the count with prejudice for failure to state a cause of action. It is from this order that plaintiff appeals.

We have considered the point on appeal in light of the complaint and the attached exhibit and have concluded that the motion to dismiss should have been denied. Government Employees Insurance Company v. Whellus, 319 So.2d 181 (Fla. 4th DCA 1975); Flye v. Jeffords, 106 So.2d 229 (Fla. 1st DCA 1958); Fla.R.Civ.P. 1.110(b).

The order appealed is reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    AAA MILLION AUTO PARTS, INC., Appellant, v. Alice AFFRON, Appellee.
    No. 79-844.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1980.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Kelly, Black, Black, Wright & Earle and Leon D. Black, Jr., Miami, for appellee.
    Before HENDRY and NESBITT, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal had its beginning in an eminent domain proceeding. The condemning authority made a partial taking of property in order to widen a thoroughfare. Buildings located thereon, leased to the appellant, were also partially taken. The parties here were co-defendants in the condemnation proceeding. Appellant, who conducted a business from the buildings, obtained a judgment for the resulting damages to his business. Appellee, as fee simple owner, settled her claim. A motion was presented to apportion the amount awarded, as damages in the settlement agreement, between the fee simple owner and the tenant. The trial court found that the tenant had elected to present its claim, for the remainder interest in the leasehold together with its claim for injury to its business, in the previous trial for business damages. On that basis, the trial court denied any allocation to the tenant with regard to his remainder interest in the lease. We agree.

A lessee is entitled to just compensation for the value of its remainder interest in its leasehold. Orange State Oil Company v. Jacksonville Expressway Authority, 110 So.2d 687 (Fla. 1st DCA 1959). Under the circumstances of this case, allocation for the loss of the “bonus value” or remainder interest in the lease would have permitted double recovery which should not be allowed on principles of justice and fair play. Giessner v. Duval County, 203 So.2d 330 (Fla. 1st DCA 1967).

Affirmed.


text:
    The STATE of Florida, Appellant, v. Inzel GAITOR, Appellee.
    No. 79-921.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1980.

      Janet Reno, State’s Atty., and Theda R. James, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

The State appeals the trial court’s dismissal of the case against Gaitor.

The defendant was arrested on June 14, 1978; the speedy trial time was due to expire on Monday, December 11, 1978. On Friday, December 8, the prosecutor informed the judge that time was about to run out. The judge suspended the trial which was in progress, and began jury selection for the Gaitor trial. After a while, it became apparent that there were only five persons remaining in the jury yenire; the defendant refused to be tried by a five-man jury. The trial court then, being aware that a three-week trial had been specially set to begin December 11, found that there were exceptional circumstances (insufficient number of jurors) to justify an extension of the speedy trial time. In his order, the trial judge stated that he extended the speedy trial time to the “first full week available for trial”, and assumed that the week of January 2,1979 was that week. The defendant objected to the extension. Due to the illness of a prosecutor, the specially set three-week trial did not take place. On Wednesday, December 13, 1978, the court advised counsel to be ready for trial on the following Monday, December 18; the trial court noted he was doing this because the week of December 18 had become the “first full week available for trial”.

On December 15, the State announced to the court that it would not be ready for trial on December 18, and requested that the case continue to be set for January 2, 1979. In January, defense counsel moved to dismiss the case because of the failure to try the defendant within the speedy trial rule or as scheduled on December 18, 1978. Ultimately, the trial judge granted the motion to dismiss on both grounds.

We sustain the dismissal on the failure of the State to try the defendant as scheduled on December 18, 1978, the “first full week available for trial”. It was within the power and discretion of the trial court to dismiss the action for failure of the State to go forward on said date, in that to further detain and incarcerate the defendant would have constituted a violation of her constitutional right to a speedy trial. In this connection, see the following authorities: State v. Cullen, 253 So.2d 861 (Fla.1971); Gereca v. State, 336 So.2d 709 (Fla. 4th DCA 1976); Suggs v. State, 358 So.2d 55 (Fla. 2d DCA 1978).

Therefore, the- order under review be and the same is hereby affirmed.

Affirmed.


author: HERSEY, Judge.

text:
    Vilda YATES, Appellant, v. BASS RANCH, INC., et al., Appellees.
    No. 79-696.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1980.
    N. Albert Bacharach, Jr. of Florida Rural Legal Services, Inc., Fort Pierce, for appellant.

      Tom W. Conely, III of Conely & Conely, Okeechobee, for appellees.
   HERSEY, Judge.

This was an action by appellant to quiet title in herself of nine acres in Okeechobee County. Appellant bases her claim on a Special Warranty Deed executed in 1977 by her mother, Lottie Sparkman. It is appellant’s position that her father and mother, Fred and Lottie Sparkman, acquired title to the real property by adverse possession pri- or to 1939. Fred Sparkman is now deceased. Appellee filed a counterclaim to quiet title based upon a Warranty Deed from Consolidated Land Company dated March 21, 1946.

The Sparkmans built a house on the property and maintained a “family” garden for growing vegetables and sugar cane. The' record indicates that approximately two acres of the nine acres in question were substantially occupied by the house and fenced-in garden. The case was tried by the court without a jury. Appellee introduced into evidence, over the objection of appellant, a document dated November 20, 1929, purported to have been signed by Fred Sparkman in the presence of two witnesses who also signed. Both witnesses are deceased. This document expressly provided that Sparkman was occupying the land under a tenancy at will as to the owner, Consolidated Land Company. The document was introduced through the testimony of one Patricia Lagoni, who was identified as the secretary and assistant treasurer and corporate secretary in charge of land development of Consolidated-Tomaka Land Company, formerly Consolidated Land Company. Ms. Lagoni testified that the document in question had been located among the corporate records of the corporation and that she had been employed by the corporation for twenty-seven and one-half years.

It is elementary that before any writing may be admitted into evidence its authenticity must be preliminarily proven by direct or circumstantial evidence. De-Long v. Williams, 232 So.2d 246 (Fla. 4th DCA 1970). Under current Florida law execution of a private writing may be proved by any competent evidence. Windle v. Sebol, 241 So.2d 165 (Fla. 4th DCA 1970). A seeming exception to the usual requirements for authentication exists where the writing has been in existence for many years and is unsuspicious in appearance and has been produced from a place of custody natural for such a document. McCormick on Evidence, § 223. Florida apparently recognized this exception in the early case of Sullivan v. Richardson, 33 Fla. 1, 14 So. 692 (1894). In applying the rule, our Supreme Court, in Clark v. Cochran, 79 Fla. 794, 85 So. 250 (1920), stressed the fact that the documents there in issue “came from a place where they would naturally be found if genuine . . . and there is no evidence of fraud or suspicious circumstances.” In Drake v. City of Fort Lauderdale, 227 So.2d 709, (Fla. 4th DCA 1969) we held proper the admission into evidence as an ancient document of a map which appeared to be regular on its face, bore a date resembling the rest of the document, and appeared to have been over thirty years of age, noting that the map came from proper custody. We have not found a Florida case holding that the ancient documents rule sufficient to authenticate a document and thus to warrant its admissibility also acts as an exception to the hearsay rule, as it does in a majority of the jurisdictions which have considered the question. Since the Florida Evidence Code, which took effect on July 1, 1979 and is therefore not applicable to this case, resolves the problem for litigants and their counsel, we hold for purposes of this appeal that the document in question, being an ancient document, qualifies as an exception to the hearsay rule and is therefore admissible to prove the truth of the matters asserted in the instrument to the effect that Fred Sparkman was a tenant at will.

It is clear then that the possession began as a tenancy at will. This placed the burden on appellant to show a termination of the voluntary nature of the tenancy, “for the law presumes that once a man goes into possession as a tenant, the relationship continues until the contrary is made to appear.” Little v. Kendrick, 152 Fla. 720, 12 So.2d 899, 900 (1943). The tenant’s 'disclaimer and disavowal of the landlord’s title must be conveyed to the landlord by clear, positive and distinct notice. Armstrong v. Wilcox, 57 Fla. 30, 49 So. 41 (1909). There was no evidence that appellant’s predecessors in title took any action to change the voluntary nature of the tenancy, or to put the landlord on notice that the tenancy was other than a permissive tenancy at will.

The certificate evidencing a tenancy at will referred to two acres of land, so that the question of title to the remaining seven acres is not put to rest by the foregoing analysis. In order to acquire title to land by adverse possession, the use of the land of another for the prescribed period must meet the following criteria:

1. It must be actual, continuous and uninterrupted;
2. It must be adverse under a claim of right; and
3. It must either be with the knowledge of the owner of the land or it must be so open, notorious and visible that notice of possession may be imputed to the owner.

We note that the law applicable here is Section 2936 of the Revised General Statutes (1920), since the operative possession occurred prior to 1939, at which time the statutory law was changed to require that one who claimed by adverse possession must have paid real property taxes during the period of adverse possession. That requirement does not apply here.

It was incumbent upon appellant to show either substantial enclosure of the property or usual cultivation or improvement. This requirement was imposed by Section 2936(2) of Revised General'Statutes of 1920. What constitutes a substantial enclosure is a question for the trier of fact. Wilson v. Tanner, 346 So.2d 1077 (Fla. 1st DCA 1977). The record is devoid of evidence of any enclosure except the small fence on the two-acre parcel. The same may be said of cultivation of the land. The trial court determined that appellant failed to meet the burden imposed by these requirements. There is nothing in the record to indicate that this Court should disturb the trial court’s finding in that regard.

We therefore affirm.

AFFIRMED.

LETTS and HURLEY, JJ., concur.


author: FARRINGTON, OTIS, Associate Judge.

text:
    STATE of Florida, Appellant, v. Brenda Louise ROBINSON, Appellee.
    No. 78-757/NT4-69.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 1980.

      Douglas Cheshire, Jr., State’s Atty. and Norman A. Tharp, Asst. State’s Atty., Ti-tusville, for appellant.
    David M. Porter, Public Defender, Titus- • ville, and Joan H. Bickerstaff, Asst. Public Defender, Cocoa, for appellee.
   FARRINGTON, OTIS, Associate Judge.

Appellee, Brenda Louise Robinson, was charged in Count II of an amended information with resisting, obstructing or opposing a municipal police officer, George T. Stenzel, in the lawful performance of a legal duty by offering or doing violence to the person of George T. Stenzel, by striking said officer with a blackjack contrary to Section 843.01, Florida Statutes (1977).

Upon motion of appellee under the provisions of Florida Rule of Criminal Procedure 3.190(c)(4), the trial judge dismissed Count II of the amended information based on his finding as a matter of law that George T. Stenzel, an off-duty uniformed Melbourne Policeman hired by the Melbourne Jai Alai Fronton, was not engaged in the lawful performance of his duties at the time of the alleged offense. This is an appeal by the state from the order dismissing Count II of the amended information.

The factual basis for the charge contained in the dismissed count as disclosed by a stipulated statement of facts included in the Record on Appeal is not in dispute.

On January 9, 1978, George T. Stenzel, a police officer of the City of Melbourne was working during off-duty hours as security officer at the Melbourne Jai Alai Fronton. His duties as security officer consisted of checking birthdate identifications and overlooking the general peace and quiet at the fronton. His wages were paid entirely by the fronton management. The Melbourne Jai Alai Fronton is within the city limits of Melbourne, Brevard County, Florida.

On that night Officer Stenzel and other off-duty Melbourne police officers hired by the fronton were wearing their Melbourne Police Department uniforms complete with badge and weapon. This part-time employment and the wearing of uniforms had been approved by the Melbourne Police Department authorities.

At about 7:30 of the evening in question a group of two men and two women (one of whom was appellee Brenda Louise Robinson) entered the front door of the fronton. Officer Stenzel was present when two other off-duty Melbourne policemen, Sgt. Young and Sgt. Malone, similarly employed by the fronton as part-time security officers, requested to see the identification of one of the men, who appeared to the officers to be too young to be admitted to the fronton. This man who will be referred to as the “first man” failed to produce identification as requested and was told either to produce identification proving his age or leave the fronton. After an argument the first man went outside to get his money back.

The other members of the group continued the argument during which the second man grabbed Sgt. Young. A scuffle ensued and the second man was placed under arrest for trespass. Sgt. Young, assisted by Sgt. Malone, escorted the arrested man from the fronton. They proceeded outside where they attempted to handcuff the arrested man. The first man reappeared and attempted to pull the officers away from the arrested man. Officer Stenzel came to the assistance of Sgt. Malone and Sgt. Young. While they were scuffling the appellee Brenda Louise Robinson removed a blackjack from Sgt. Malone’s rear pocket with which she struck Officer Stenzel several times.

The only question to be decided in this appeal is whether Officer Stenzel was engaged in the lawful execution of a legal duty at the time appellee Brenda Louise Robinson struck him with a blackjack. We hold that under the circumstances disclosed by the stipulated statement of facts the officer was engaged in the lawful execution of a legal duty and reverse.

In ruling that Officer Stenzel was not engaged in the lawful execution of his duties at the time he was assaulted, the trial judge relied on the case of Soverino v. State, 356 So.2d 269 (Fla.1978), wherein it is stated:

Because the public welfare is protected by the performance of these duties, the legislature in its wisdom has chosen to accord greater protection to one who performs these indispensable public services. When an officer is not performing his official duties, he is no longer protecting the public welfare and, consequently, the statute yields him no greater protection than that accorded to members of the general public.

Soverino involved a constitutional attack on a statute providing enhanced penalties for persons assaulting law enforcement officers engaged in the lawful performance of their duties, but did not involve any determination of what activity of the officer constituted lawful performance of his duty. That case is not valid authority for holding as a matter of law that Officer Stenzel was not engaged in the lawful execution of his duties at the time he was assaulted by appellee.

A full time police officer is authorized by Florida law during off-duty hours at the discretion of his superior officers to carry firearms and to perform those law enforcement functions that he normally performs during duty hours. In the case of State v. Williams, 297 So.2d 52 (Fla. 2d DCA 1974), involving a situation where a uniformed city policeman hired by the management of a dance hall to work during off-duty hours seized a handgun from a handbag which a patron sought to carry into the dance hall and arrested the patron, it was held that the officer acted as an officer of the city in makimg the seizure. It was stated in that opinion:

. The appellee stood in line and disclosed the contents of her handbag to an employee of the establishment, who, observing a handgun therein called Sergeant Philmore, an off-duty but uniformed officer of the City of Tampa, who seized the weapon and arrested appellee. . We agree with the trial judge that Sergeant Philmore acted as an officer of the City of Tampa.

We hold that Officer Stenzel’s “off-duty” status was not a limitation upon his right to exercise police authority in the presence of criminal activity. He was engaged in the lawful performance of his duty as a police officer of the City of Melbourne when he came to the assistance of Sgt. Young and Sgt. Malone who were struggling to maintain custody of the man they had arrested and were in the process of removing from the fronton premises.

The order appealed from is reversed and the ease remanded for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

MOORE,' JOHN H., II, and BERANEK, JOHN R., Associate Judges, concur.

      . 843.01 Resisting officer with violence to his person. — Whoever knowingly and willfully- resists, obstructs, or opposes any sheriff, deputy sheriff, officer of the Florida Highway Patrol, municipal police officer, ... or other person legally authorized to execute process, in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . Soverino v. State, supra, involved a challenge to the constitutionality of Sec. 784.07, Fla.Stat. (Supp.1976), which reclassified the offense of battery of a law enforcement officer “engaged in the lawful performance of his duties” from a misdemeanor of the first degree to a felony of the third degree. In that case the appellant after being arrested by a municipal police officer and transported to the police station to be booked, struck a law enforcement officer in the mouth. The Florida Supreme Court upheld the statute, rejecting the contention that it violated the appellant’s right of equal protection under the law by punishing more severely those who assault law enforcement officers or firefighters than those who commit the same act upon any other person.

      . Sec. 790.052, Fla.Stat. (1977).

      . See Wood v. State, 486 S.W.2d 771 (Crim.App.Tex.1972).


author: COBB, Judge.

text:
    Flozell BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 78-1610/T4-162.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 1980.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender and Jon May, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   COBB, Judge.

Appellant was charged with burglary of a dwelling in violation of Section 810.02(3), Florida Statutes (1977). At the jury instruction conference, appellant’s attorney requested an instruction on both first degree misdemeanor trespass and second degree misdemeanor trespass. The trial court refused to instruct on second degree misdemeanor trespass. The jury found appellant guilty of first degree misdemeanor trespass. Appellant contends that the trial court erred in refusing to instruct the jury on second degree misdemeanor trespass. We agree. Second degree misdemeanor trespass is a lesser included offense; therefore, the trial court should have given the requested instruction. Brown v. State, 206 So.2d 377 (Fla.1968).

Since the offense that the judge did not instruct on was not two or more steps from the offense that appellant was convicted of, the failure to give the requested instruction was not harmless error. Delaine v. State, 262 So.2d 655 (Fla.1972); State v. Abreau, 363 So.2d 1063 (Fla.1978).

REVERSED and REMANDED for new trial.

ORFINGER and SHARP, JJ., concur.


author: UPCHURCH, Judge.

text:
    SURFSIDE ESTATES, INC. v. WATERWAY HOMES, INC., Appellee.
    No. 78-2389/T4-279.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 1980.
    R. L. Russell, Orlando, for appellant.
    James R. Dressier, Cocoa Beach, for ap-pellee.
   UPCHURCH, Judge.

This is an appeal from a Final Judgment of the Circuit Court for Brevard County which had been entered after a jury awarded punitive damages of $9,000 and special damages of $396.15.

Appellant, Surfside Estates, Inc., sought to foreclose a mechanic’s lien against Appel-lee, Waterway Homes, Inc., pursuant to Chapter 713, Florida Statutes (1977). After the complaint was tried, the trial judge entered a final judgment for fees and costs in favor of Appellee. A jury trial of Appel-lee’s Counterclaim under section 713.31, Florida Statutes (1977), resulted in a judgment for Appellee.

The question is, whether it was prejudicial error for the court to admit into evidence, at the trial on Appellee’s counterclaim, the Final Judgment entered against Appellant on its lien foreclosure complaint.

At the trial, counsel for Appellee requested that the portion of the judgment “pertinent to this particular case” be read into evidence. Appellant objected on the ground that it was not relevant, but made no other objection. The court overruled the objection and read into evidence only the order and judgment portion of the final judgment. Appellant contends that this was highly prejudicial because the jury was told, in effect, that Appellant had no lien and therefore could only conclude that the lien was fraudulent.

Section 713.31(2)(c), Florida Statutes (1977), provides that a punitive damage award shall not exceed the difference between the amount claimed by the lienor and the amount actually due or to become due. Therefore, the amount “due or to become due”, as contained in the judgment, was relevant in the jury’s consideration of the amount of punitive damage and necessary.

Perhaps a better method could have been used for this purpose and any prejudice which may have resulted from the use of the language of the judgment been eliminated, but Appellant suggested none to the court. His objection on the grounds of relevancy was properly overruled. See Caldwell v. People’s Bank, 73 Fla. 1165, 75 So. 848 (1917).

AFFIRMED.

COBB, J., and MILLER, ROBERT P., Associate Judge, concur.

      . § 713.31(2)(c), Fla.Stat. (1977). An owner against whose interest a fraudulent lien is filed, or any contractor or subcontractor who suffers damages as a result of the filing of such a fraudulent lien, shall have a right of action for his actual damages occasioned thereby and for punitive damages. Such action may be instituted independently of other action, or in connection with a summons to show cause under § 713.21, or as a counterclaim or cross-claim to any action to enforce or to determine the validity of such lien. The lienor who files a fraudulent lien shall be liable to the owner in damages, which shall include court costs, clerk’s fees, and a reasonable attorney’s fee for services in securing the discharge of the lien, the amount of any premium for a bond given to obtain the discharge of the lien, interest on any money deposited for the purpose discharging the lien, and punitive damages in an amount not exceeding the difference between the amount claimed by the lienor to be due or to become due and the amount actually due or to become due.


author: SHARP, Judge.

text:
    Gordon Cecil SPHALER, Petitioner, v. Melvin COLMAN, Sheriff of Orange County, Respondent.
    No. 79-344.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 1980.

      Aldo Icardi, Winter Park, for petitioner.
    Michael Saunders, Asst. State’s Atty., Orlando, for respondent.
   SHARP, Judge.

The Petitioner filed a Petition for Writ of Habeas Corpus with this Court. He argues that the trial judge denied him bail under section 903.132, Florida Statutes (1979), and Rule 3.691(a) of the Florida Rules of Criminal Procedure, because of his previous felony conviction, and that as applied to him, the statute and rule are unconstitutional “ex post facto” laws. We disagree.

The Petitioner was found guilty of aggravated assault, false imprisonment, and possession of a firearm by a convicted felon on August 23, 1979. The Petitioner was allowed to post bond pending a pre-sentence investigation, and remain at liberty. Upon motion of the State Attorney, the Petitioner’s bail was revoked. The Petitioner filed an appeal of the conviction and application to set bail, which was denied. The trial judge stated as reasons for his denial the statute and rule cited above and the fact that the Petitioner had been convicted of a felony in 1961 and his civil rights were not restored.

The applicable statute became law in 1969 (amended 1976), and the rule was established in 1973 (amended 1977). Both provide that a person convicted of a non-capital offense may not be allowed bail pending an appeal if such person was previously convicted of a felony and if such person’s civil rights have not been restored. The actions of the Petitioner, which culminated in his 1979 conviction, took place on April 21, 1978. His prior felony conviction occurred in 1961.

The test for whether or not application of the cited rule and statute to the petitioner is unconstitutional because “ex post facto” in effect, depends on whether or not both felony offenses were committed prior to the effective date of the rule and statute.

The statute is not rendered ex post facto by providing enhanced punishments for a subsequent offense because of convictions occurring prior to the passage of the statute.

Cross v. State, 96 Fla. 768, 119 So. 380, 385 (1928). The Cross court quoted 1 Bishop's Criminal Law § 283 (9 Ed.), as the rationale for its decision:

“It has been repeatedly adjudged ‘that the previous commission of crimes may be considered in determining the punishment to be imposed, and in the creation of certain kinds of statutory offenses, without rendering a statute an ex post facto law.’ When both offenses however were committed before, the consequence is otherwise.” (Emphasis added).

Id. at 385.

In this case, the Petitioner was arrested for acts committed in 1978 and was convicted in 1979. The statute and rule cited above were in effect prior to 1978, and under their specific provisions, bail should not have been granted in this fact situation. Loudd v. State, 356 So.2d 1297 (Fla. 4th DCA 1978). Greene v. State, 238 So.2d 296 (Fla.1970), is not applicable because both the felonies involved in that case had been committed before the effective date of the statute sought to be applied.

The Petition for Writ of Habeas Corpus is hereby DENIED.

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

      . Art. II, § 3 Fla.Const. (1968); Art. I, § 10 U.S.Const.


author: PER CURIAM. DAUKSCH, Chief Justice,

text:
    James McCREADY, Appellant, v. The VILLAS APARTMENTS, Appellee.
    No. 79-661/T4-463.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 1980.
    Leslie King O’Neal, James W. Markel and Alan F. Scott, Jr., of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P. A., Orlando, for appellant.
    Bill McCabe, of Shepherd, McCabe & Cooley and Edmund T. Woolfolk, of Walker & Buckmaster, Orlando, for appellee.
   PER CURIAM.

James McCready appeals from an order which simply reads “The Motion of THE VILLAS APARTMENTS and INSURANCE COMPANY OF NORTH AMERICA, for Summary Judgment is granted.”

The appealability of that order has not been raised. We raise it on our own.

An order simply granting a motion for summary judgment is not a final judgment and is not an order that can be appealed. Pompano Paint Co. v. Pompano Beach Bank and Trust Co., 208 So.2d 152 (Fla. 4th DCA 1968); Bailey v. Allstate Insurance Company, 218 So.2d 761 (Fla. 2nd DCA 1969); Renard v. Kirkeby Hotels, Inc., 99 So.2d 719 (Fla. 3rd DCA 1958); Haddad, Partial ‘Final’ Judgments, 53 Fla.B.J. 204 (Oct.1979). Thus we must dismiss this appeal.

APPEAL DISMISSED, sua sponte.

CROSS, J., and McDONALD, PARKER LEE, Associate Judge, concur.

DAUKSCH, C. J., concurs specially with opinion.

DAUKSCH, Chief Justice,

concurring specially:

While I quite agree with the dismissal of this appeal, I suggest a change in the appellate rules to relax such a formalistic requirement to save the embarrassment and expense, not to mention the judicial labor, incurred in cases such as these. Why can’t we say the granting of a motion for summary judgment is just as appealable as the inevitable judgment itself if the order essentially meets the finality requirements? The case law, of course, is quite clear and a rule change is required, if desired.

Since we are acting sua sponte in this matter, I cannot help wonder aloud how one can sue “The Villas Apartments.” Is that the curious name of a natural person? I suspect not. It certainly is not a corporation because the word or one of the abbreviated indications is not there. Thus, the only way the appellee could be deemed a form of legal entity is if someone, either a corporation or a natural person, has filed under the Fictitious Name Statute to use the name “The Villas Apartments”. In such event, appellant should sue the one who registers the name, not the name.


text:
    The STATE of Florida, Appellant, v. Arturo GALLEGO, Appellee.
    No. 79-1956.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Janet Reno, State’s^ Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Peter Raben, Asst. Public Defender, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

This is an appeal by the state from an order excluding a witness from testifying at the trial because he did not attend a deposition set by the defendant. The defendant-appellee has confessed error in the order under review. Upon consideration of the confession of error, the brief of appellant, and the record, the order below is

Reversed.


text:
    STATE of Louisiana v. Lindy ROLAND et al.
    No. 65729.
    Supreme Court of Louisiana.
    Nov. 1, 1979.
   PER CURIAM.

Defendant Lindy Roland has been charged by bill of information with several counts of armed robbery in violation of La.R.S. 14:64. Prior to trial, pursuant to defense motion, the court ordered the state to produce proof that defendant’s prior convictions conformed to the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 28 L.Ed.2d 274 (1969) and State v. Lewis, 367 So.2d 1155 (La.1979), before the convictions could be used to impeach the credibility of defendant on cross-examination. The state objected to the ruling and filed an application for writs with this Court. Upon review of the state’s application and the opposition filed on behalf of defendant, we conclude that the ruling of the trial court must be reversed.

Louisiana’s rules of evidence permit use of prior convictions for the purpose of impeaching the credibility of witnesses, including criminal defendants. La.R.S. 15:495. However, the use for the impeachment purposes of a prior conviction void for failure to afford defendant his right to counsel, or otherwise so involuntary that the reliability of the conviction is impaired, deprives an accused of due process of law. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); State v. Bernard, 326 So.2d 332 (La.1976). Cf. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 37 L.Ed.2d 290 (1978); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The burden of proof rests with the defendant. See Loper v. Beto, supra; State v. Bernard, supra.

Our recent decisions in State v. Lewis, supra, and State v. Holden, 375 So.2d 1372 (La.1979), relative to the use of prior convictions to enhance subsequent penalties, were not intended to change the rules of law applicable to impeachment nor to shift any burden of proof in such situations to the state. Accordingly, the ruling of the trial court requiring the state to lay a predicate prior to the use of prior convictions for impeachment purposes -is reversed and set aside. However, upon remand the defendant shall be afforded an opportunity to establish the inadmissibility of any prior convictions.

For the reasons assigned the writ is granted and the case is remanded to the trial court for further proceedings.


text:
    STATE of Louisiana v. Clinton GONZALES.
    No. 65973.
    Supreme Court of Louisiana.
    Nov. 1, 1979.
   In Re: State of Louisiana, through the District Attorney, Harry F. Connick, applying for Certiorari, Prohibition and Mandamus, Orleans Parish, No. 271-782.

Granted. See State v. Roland, La., 379 So.2d 721, rendered this day.


text:
    STATE of Louisiana, Relator, v. Charles F. BOLTON, Respondent.
    No. 64937.
    Supreme Court of Louisiana.
    Nov. 12, 1979.
    Clyde D. Merritt, Asst. Director, New Orleans, Calvin Johnson, Orleans Indigent Defender Program,, for respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Richard J. Petre, Jr., Asst. Dist. Atty., Career Criminal Bureau, for relator.
   PER CURIAM.

The issue before us concerns the state’s burden of proof as to the voluntariness of an admitted plea of guilty in 1966. This prior conviction is an essential element in proof of the crime charged that the defendant, as a convicted felon, was in possession of a firearm. La.R.S. 14:95.1. The state has the burden of proving the prior conviction of a felony and that the accused’s firearm violation occurred within ten years of his completion of his sentence. State v. Williams, 366 So.2d 1369 (La.1978).

The issue before us was presented by a motion to quash the indictment. The motion was based upon the state’s admission that the present prior conviction can be proved only by a minute entry to the following effect: that in the Orleans Parish Criminal District Court on October 26, 1966 the defendant, attended by his named counsel, withdrew his plea of guilty, pleaded guilty to a felony drug offense, and was sentenced to five years at hard labor.

By his motion to quash, the defendant urges that the 1966 conviction cannot constitute a valid basis for proof of the prior conviction, an essential element. The defendant argues that a prior guilty plea cannot be proved to be valid and cannot be used to enhance punishment unless it is supported by a contemporaneous record of an examination by the trial court, which must affirmatively show its free and voluntary nature and contain an articulated and knowing waiver of certain constitutional rights to a trial of innocence or guilt.

The trial court sustained the motion to quash, accepting the defense argument that State v. Lewis, 367 So.2d 1155 (La.1979), mandated this result as required by the federal constitution. We granted certiorari to review this ruling, 373 So.2d 533 (La.1979).

Subsequent to the district court’s decision, we explained and somewhat modified Lewis. State v. Holden, 375 So.2d 1372 (La.1979). In so doing, we in part relied upon a post-Lew/s decision of the United States Supreme Court.

In Holden we held that, when the state intends to use a plea of guilty as a prior conviction in order to enhance punishment under La.R.S. 15:529.1:

(1) If taken before the decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the plea is valid, if voluntary and with counsel, without any need for articulated waiver of the constitutional rights subsequently required by Boykin to be articulated and expressly waived in order that a plea be considered to be knowing and made with a full understanding of its consequences.

(2) As to non-Louisiana and federal pleas of guilty:

The state may prove the conviction and its date by a certified copy of a minute entry (or an equivalent contemporaneously recorded or executed document) showing the plea and that the accused was represented by counsel. (The state must, of course, prove that the defendant in the plea and the present accused are the same person.)

The defendant has the burden of proving that the plea was involuntary or that (if taken subsequent to Boykin) he did not waive Boykin rights; he may do so in the enhancement proceedings only by the colloquy at the time of the plea of guilty, which must affirmatively show substantial defect in this regard. For any other collateral attack upon the prior plea, the defendant is relegated to any remedy he has in the court which took his plea.

(3)As to Louisiana state court pleas of guilty:

(a) The same rule as in (2) applies as to pleas taken on or before December 8, 1971, the date of finality of State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), a decision which mandated the so-called “Boykin ” requirements for state pleas of guilty.

(b) However, for pleas of guilty taken after December 8, 1971, in order to use the prior plea of guilty to enhance punishment in a subsequent proceeding, the state must, if objection is made to its voluntariness or to its being a knowing plea (due, e. g., to the absence of waiver of the Boykin rights), affirmatively show through (only) a contemporaneously recorded transcript that the plea was voluntary and made with an awareness of its consequences. State v. Lewis, 367 So.2d 1155 (La.1979); State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

It is true that Holden concerned only the proof of prior pleas of guilty in 'enhancement of sentence proceedings under La.R.S. 15:529.1. However, for the reasons therein set forth, the same principles apply when the state intends to prove a prior plea of guilty as an essential element of the crime, as in the present prosecution under La.R.S. 14:95.1.

Thus, in the present instance, the state may, as proof of the prior conviction itself, rely upon the minute entry showing a counseled plea of guilty to a felony in 1966 in a Louisiana state court, without further affirmative showing of its voluntariness or of a waiver of Boykin rights. See (1) and (3)(a) above. .

Accordingly, we reverse the ruling sustaining the motion to quash the indictment, and we remand this case to the district court for further proceedings in accordance with law.

REVERSED AND REMANDED.

SUMMERS, C. J., concurs.

       Chief Judge PAUL B. LANDRY, Retired, is sitting by assignment as Associate Justice Ad Hoc in place of TATE, J., upon this case.

      . The trial court had some reservations that the motion to quash was the proper procedural vehicle by which to raise the issue. At the urging of both the state and the defendant, it decided the issue on the merits, especially since arguably the issue of whether a crime was charged could have been raised by the motion, La.C.Cr.P. art. 532(1), if the state had furnished the information concerning the prior indictment by a bill of particulars instead of by stipulation, and since arguably the trial court could have taken judicial notice of the minute entry of the prior conviction in its own court, La.R.S. 15:422(7).


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    STATE of Louisiana v. Hazel GRISHAM.
    No. 65569.
    Supreme Court of Louisiana.
    Nov. 16, 1979.
   PER CURIAM.

Defendant Hazel Grisham was charged by bill of information with possession of Talwin (pentazocine), a controlled dangerous substance, in violation of La.R.S. 40:967. Defendant’s motion to quash the indictment, based upon the allegedly unlawful inclusion of pentazocine in the list of controlled dangerous substances and the lack of notice of its controlled status, was granted on August 29, 1979. The state has applied to this Court for a writ of review.

In State v. Hicks, 377 So.2d 86 (La.1979), we held that, assuming the authority of the Secretary of the Department of Health and Human Resources to add pentazocine to the list of controlled dangerous substances under La.R.S. 40:962(B), that action was ineffective prior to publication in the Louisiana Register on April 20, 1979. Therefore, at the time of defendant’s arrest on March 30, 1979, pentazocine was not a controlled dangerous substance, and its possession was not unlawful. See, State v. Hicks, supra.

Accordingly, the writ is denied; the trial court’s ruling sustaining defendant’s motion to quash was correct.


text:
    STATE of Louisiana ex rel. Manuel C. MOLERO v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 65467.
    Supreme Court of Louisiana.
    Nov. 23, 1979.
   PER CURIAM.

Relator Manuel Molero pled guilty in 1971 to multiple felony charges involving theft, R.S. 14:67, aggravated burglary, R.S. 14:60 and aggravated escape, R.S. 14:110(B). He received a total sentence of ten years’ imprisonment at hard labor. Defendant received his release from the state penitentiary at Angola on parole, January 3, 1974. At the time, the Department of Corrections calculated the balance of his sentence at six (6) years, eleven (11) months, and twenty-four (24) days. That unexpired term became due on April 11, 1978 when the department revoked defendant’s parole. Defendant now asks for the following credit against the balance of his sentence: four months spent in jail in the summer of 1976 awaiting a revocation hearing (which ended in release following a reprimand only); and the time spent in parish prison from January 9, 1978 to the final revocation date of April 11. In defendant’s view, he deserves not only “straight time” credit for the two episodes, but also “good time” earned at the rate of two days for every one. The Department of Corrections has given him no credit (straight or good time) for the months in 1976, and the straight time only (three (3) months, two (2) days) for the interval in 1978.

Defendant’s application is denied for the following reasons.

Of principal concern to the Court here is the possible loss of the “good time” privilege (assuming defendant properly earned it, as he alleges) in this second episode. The trial court did not specifically address the question in the ruling below. The issue turns, as does the 1976 problem, on the interpretation of R.S. 15:574.9(E) as amended by Acts 1974, No. 203:

When the parole of a parolee has been revoked by the board for the violation of the conditions of parole, the parolee shall be returned to the institution from which he was paroled and serve the remainder of his sentence as of the date of his release on parole, subject to consideration by the board of any commutation of the sentence, and any diminution of sentence earned for good behavior while in the institution. The parolee shall be given credit for time served prior to the revocation hearing whether such time is served in a local detention facility, state institution, or out-of-state institution, except that the parolee shall not receive credit for such time served prior to the revocation hearing where such hearing does not result in revocation, or the revocation is based on subsequent conviction of a crime, in which case the parolee will receive credit for time served for the subsequent conviction pursuant to Code of Criminal Procedure Article 880.

In discussing the 1976 question, the trial court noted that under R.S. 15:574.6, “[t]he parole term, when the board orders a prisoner released on parole, shall be for the remainder of the prisoner’s sentence, without any diminution of sentence for good behavior.” In rejecting defendant’s claims for 1976 credits (good as well as straight), the court concluded that “[sjince applicant’s parole term continued to run during his 1976 incarceration pending revocation hearing, R.S. 15:574.6 prohibits good-time credit during such period.”

Whatever the merits of denying any credit for the time served in 1976, the trial court here has misread R.S. 15:574.6. The statute addresses only the computation of the parole term, the amount of time a defendant spends outside prison subject to the supervision of the Department of Corrections. That determination, as parole eligibility in the first place, is made without regard to good time credits. The statute essentially provides that “good time” credits cannot shorten the length of the parole term as calculated in straight time on the basis of the sentence imposed.

But computation of the time actually served after parole has been revoked is another matter entirely. Good time credits will once again figure in the final (non-parole) release date. The Rules of the Louisiana Board of Parole thus provide that “[a] parolee returned to incarceration for a parole violation that does not include a new sentence for felony offense, will be required to serve the remainder of the sentence, subject to applicable commutation statutes or good-time credits." Under R.S. 15:574.-9(E), those good time credits will include the good time earned prior to parole. They will also include good time earned in the future, as the legislature has provided automatic forfeiture on parole revocation only of “. . . all good time earned on that portion of the sentence served prior to pa role up to a maximum of one hundred and eighty days.” R.S. 15:571.4(B).

R.S. 15:574.9(E) does not specify whether the measure of a parolee’s credit for time served awaiting final revocation is straight or good time. In view of defendant’s continued eligibility for good time credits after parole revocation, lenity favors the application of good time credit. In fact, as we understand the policy at Angola, if a prisoner is returned there to await revocation, the penitentiary will give him good time credit on his sentence. If, on the other hand, defendant remains incarcerated in a parish jail awaiting the hearing, the penitentiary will credit only straight time against the sentence. That result appears consistent with R.S. 15:571.4(B) which limits the awarding of good time by the Department of Corrections to inmates of the department’s adult corrections institutions, i. e. Angola and St. Gabriel’s only.

In this case, defendant’s original habeas application, and the order of the trial court denying relief reflect that defendant did not return to Angola until April 11, the date of his parole revocation. He thus appears entitled only to a credit of straight time served in the parish prison. As defendant got no more, and no less, than he was entitled to, he has no complaint here.

Accordingly, defendant’s application for supervisory writs is denied.

      . By Acts 1974, No. 203 (R.S. 15:574.9(E)), the legislature for the first time explicitly gave the defendant credit for time served awaiting final revocation. Prior legislation, Acts 1956, No. 66 § 1 and Acts 1968, No. 191, was silent on that point and on the question of time spent short of actual revocation. Acts 1968, No. 191 thus provided that the remainder of the sentence was subject only “to consideration by the board of any commutation of the sentence, the time he had served prior to his parole, any diminution of sentence earned for good behavior while in the institution." Defendant attacks denial of any credit in 1976 on ex post facto grounds, supposing that he had a right to such credit (at the time of the commission of his offenses), in the event of parole, that was then cut off by the 1974 legislation. But prior legislation had not specifically granted such credit, and as we understand the policy at Angola, the penitentiary did not give credit (straight or good) to a parolee for the time spent awaiting his hearing prior to 1974, whether or not the hearing ended in actual revocation. To this extent, the parolee is better off under the 1974 act than he was before, and we therefore find defendant’s ex post facto argument without merit.

      . As set forth in the Rules of the Louisiana Board of Parole “[g]ood time credits have no effect on parole eligibility.” In the normal course, a defendant becomes eligible for parole after serving one-third of his sentence. On a six year sentence for example, the defendant will thus become eligible for parole after two years without regard to his good time credits. His parole term, under R.S. 15:574.6, again without regard to any good time credit, is four years, the unexpired balance of the sentence on release.

      . R.S. 15:571.4(B) thus provides that:
      B. Upon the recommendation of the warden or superintendent of the adult correctional institutions of the Department of Corrections, the director of corrections may authorize the awarding of good time in the amount prescribed by law toward the diminution of sentence for inmates in the custody of the department of corrections. Recommendations for good time credit will be made on the basis of a thorough evaluation of the individual inmate’s behavior, work performance and efforts toward self-improvement. Good time for all sentences will be computed on the basis of twenty-five days per month for time actually served, which amount shall be applied toward diminution of sentence. Determination will be made on a monthly basis as to whether good time has been earned. Forfeiture of good time shall not exceed twenty-five days for any one month of time served. Good time which has been earned will not be forfeited except that an inmate who escapes from custody will forfeit all good time earned on that portion of the sentence served prior to escape. An offender who is returned to an institution due to revocation of parole will forfeit all good time earned on that portion of the sentence served prior to parole up to a maximum of one hundred and eighty days. Good time not earned during a particular month cannot be credited at a later time.


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    STATE of Louisiana ex rel. Ray STEVENS, Richard Lavigne and William Green v. Warden Hayden J. DEES, Dixon Correctional Institution, et al.
    No. 65314.
    Supreme Court of Louisiana.
    Nov. 26, 1979.
   PER CURIAM.

Relators, Stevens, Lavigne and Green, inmates in the custody of the Louisiana Department of Corrections, jointly filed a writ application seeking the Court’s review of the Nineteenth Judicial District Court’s denial of writs wherein they sought credit for time served which was assertedly due but was being denied them. C.Cr.P. art. 880. Relators Lavigne and Green have failed to present such support for their claims as would entitle them to the relief sought; accordingly, Lavigne’s and Green’s claims for relief are rejected. However, relator Stevens’ claim of denial of credit for time spent in custody prior to imposition of sentence could neither be substantiated nor refuted, due to conflicts found to exist in the records of the Calcasieu Parish Jail, which we hereinafter detail.

In an attempt to determine the accuracy of Stevens’ claim that he is due credit for time served from date of arrest, May 30, 1977, through date of transfer to the custody of the Department of Corrections, January 3, 1978, this Court contacted the Calca-sieu Parish Jail and was informed that the jail’s records did not reflect Stevens’ incarceration there during the period May 30, 1977 through December 12, 1977. On December 12, 1977 Stevens was sentenced and remained in the Calcasieu Parish Jail until January 3, 1978, the date he was transferred to L.D.C. facilities. Next an inquiry was made to the Clerk, 14th Judicial District Court, Parish of Calcasieu. That inquiry prompted submission to the Court of the Judge’s and District Attorney’s statement showing incarceration from April 28,1977 to May 4,1977 and from December 12, 1977 to the date of the statement (12-22-77). Also forwarded was a certificate from the Calcasieu Parish Jail showing that Stevens was incarcerated for the following periods: December 7, 1976 through December 12, 1976; September 2, 1977 through October 15, 1977 and October 20, 1977 through January 3, 1978. The certificate, however, erroneously calculated these periods to total forty days. This error prompted the Court to initiate further inquiry which resulted in further information being submitted by the Calcasieu Parish Jail. This time the jail certified that Stevens was incarcerated during the following periods: July 12, 1976 to August 26, 1976; December 7,1976 to December 17, 1976; April 28,1977 to May 4, 1977; and December 12, 1977 (date of sentencing) to January 3, 1978 (the date Stevens was transferred to LDC). A simultaneous request for information was made to Stevens’ attorney. The information the attorney’s staff submitted in response to the Court’s request was also elicited from Calcasieu Parish Jail personnel which informed the attorney’s staff that for the period about which it inquired, May 30, 1977 to December 12, 1977, incarceration of Stevens appeared to have been from 9-2-77 through 10-18-77 (a period reported to this Court in the first certificate from Calcasieu Parish Jail, but not in the second report forwarded).

Due to the numerous discrepancies appearing in the various reports made in response to its inquiries, the Court is unable to determine the merits of Stevens’ claim of denial of credit for time served. Thus, an evidentiary hearing is required to finally and accurately determine the amount of time served prior to imposition of sentence to which Stevens is entitled and of which he is being deprived (if any). Accordingly, Stevens’ writ is granted and it is ordered that the 14th Judicial District Court conduct an evidentiary hearing to the end that the time served by Stevens prior to imposition of sentence be accurately determined and ordered credited.