author: GLICKSTEIN, Judge.

text:
    In re The FORFEITURE OF 1978 CADILLAC 4-DOOR, VIN # 6D69S8E648768; and 1977 Cadillac Seville, VIN # 569R70486077.
    No. 83-2560.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.
    Philip J. Montante, Jr., Pompano Beach, for appellant-City of Pompano Beach Police Dept.
    Dennis L. Schaefer of Dell & Schaefer, Hollywood, for McKenzie.
    William C. Davell and James D. Camp, III, of Rogers, Morris & Ziegler, Fort Lauderdale, for appellee-Sun Bank of South Florida, N.A.
   GLICKSTEIN, Judge.

This is an appeal of a final order, granting appellee’s motion to tax attorney’s fees against the City of Pompano Beach Police Department in favor of the lienholder, Sun Bank/South Florida, N.A., after entry of a final judgment of forfeiture of a 1978 Cadillac to the police department. We reverse because of the failure (a) to raise the issue of attorney’s fees due the lienholder in a timely, proper manner in the absence of any contract properly introduced into evidence and (b) to prove the essential elements at the hearing upon the motion. Had these deficiencies been avoided, the lienholder would have been entitled to the fees it was awarded.

The basis for any claim for an attorney’s fee would have been the security agreement executed by the purchaser of the vehicle in favor of the dealer and assigned to the bank. There was no statutory predicate for the award of the fee. Brown v. Gardens by the Sea South Condominium Association, 424 So.2d 181 (Fla. 4th DCA 1983), controls. In that case we expressed a lack of enthusiasm for existing distinctions in this area but allowed an attorney’s fee because (a) all of the parties and the trial court expressly recognized at the pretrial conference that the entitlement to such fee was clearly an unresolved issue pver which the trial court expressly reserved jurisdiction, and (b) the statute under which the action was brought expressly provided for such fee, absolving the pleader of the necessity to plead entitlement.

Here, appellant had no notice that an attorney’s fee was being sought when, after a number of pleadings, it abandoned its contest of the lien and expressly acknowledged and acquiesced in liability for the principal amount of the unpaid lien. The basis for the lien was not introduced into evidence at the final hearing on the merits. Appellant was then served with a post-judgment motion thereon notwithstanding (1) the absence of mention thereof in the pleadings nor at the final hearing, (2) the failure to introduce the security agreement, and (3) the absence of retention of jurisdiction in the final judgment for such award.

At the hearing on the motion, which was clearly based upon an unattached security agreement, appellee’s counsel was asked by the trial judge how much time he had spent on the case. Counsel responded to the question. He was not under oath at the time the question was asked nor did he ever take the stand to attest to his client’s incurring of the fee nor the work that he performed. An expert did testify as to his opinion of what a reasonable fee would be. We have stated on a number of occasions that proof of attorney’s fees requires the testimony of the attorney performing the services as well as that of the expert. See Cohen v. Cohen, 400 So.2d 463 (Fla. 4th DCA 1981). There, we gave the attorney an opportunity to do it properly on remand. We do not do so here because of the absence of any notice to appellant in the pleadings or otherwise, prior to or at the time of entry of final judgment that such fee was being sought as well as the absence of a statutory predicate for the lien-holder’s action.

We fail to see any relevance of the fact that this was a forfeiture proceeding. That is only the setting in which an attorney’s fee has been claimed. The proceeding itself neither adds to nor detracts from the claim and there is no statute which serves as the keystone for the claimed fee. Our companion court awarded an attorney's fee in a forfeiture setting in City of Orlando v. Sun Bank, N.A., 428 So.2d 769 (Fla. 5th DCA 1983). The court expressly recited that the note and security agreement which had been introduced into evidence provided for such fee. It is obvious to us that if the security agreement had not been provided, no award would have been made. In this case, the security agreement was not attached to any pleading, although the post-judgment motion referred to it. Nor was it introduced into evidence nor made part of the record of the main hearing or the post-judgment hearing, unlike Orlando.

In its opinion in the Orlando case the Fifth District Court of Appeal relied upon State v. One 1976 Pontiac Firebird, 168 N.J.Super. 168, 402 A.2d 254 (1979). Like Florida, New Jersey has in its statutes a version of the Uniform Controlled Dangerous Substances Act. The New Jersey statute states the secured property seized under it remains subject to the interest of the secured party. In reference to award of attorney’s fees to the secured party, the New Jersey court held that, where the loan agreement states, in the event a suit or other proceedings are taken under the security agreement, the secured party may collect costs and attorney’s fees as allowed by the court in a judgment thereon, and provides further for reasonable attorney’s fees in the event of default, the attorney’s fee is an integral part of the secured lien. The state’s argument it was not a party to the original contract was of no avail. The court held the state would be liable for attorney’s fees incurred by the secured party in these circumstances. But for the circumstances in this case, we would do the same. Appellant argues that it was not a party to the security agreement and that any costs should be borne by the original purchaser if the secured party is to shed them. However, if the vehicle is collateral for the attorney’s fee as part of the overall lien, whoever has the benefit of the vehicle (or its value) logically should be liable. It is true appellant did not buy the vehicle from the original lienee, but it is her successor in interest. As such, it took the bad with the good. Appellant here is saved by circumstances, not by its lack of privity with the lienor.

HERSEY and DELL, JJ., concur.


source: Caselaw Access Project

author: HOBSON, Acting Chief Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Harry JUSTICE, Appellee.
    No. 83-2126.
    District Court of Appeal of Florida, Second District.
    June 27, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Diane E. Billings of Schultz & Walsh, P.A., Bradenton, for appellee.
   HOBSON, Acting Chief Judge.

The state seeks reversal of the lower court’s order granting the defendant’s motion to dismiss. We reverse.

On May 18, 1981, the defendant, Harry Justice, was placed on three years probation for committing the offenses of burglary of a structure and grand theft. On January 11, 1983, an information was filed against Justice alleging that he had committed burglary and grand theft. One week later an affidavit of probation violation was filed alleging that the defendant violated condition (5) of his probation by committing the same burglary offense charged in the information.

On August 19, 1983, the court conducted the probation revocation hearing and concluded that the state failed to show that the defendant committed the act and found that the state did not meet its burden to satisfy the conscience of the court. The defendant then filed a motion to dismiss the information, contending that the information involved an identical transaction which was the subject of the probation revocation hearing and that the doctrine of collateral estoppel required dismissal. The trial court granted the motion and the state appealed.

On appeal the state argues that Green v. State, 450 So.2d 509 (Fla. 3d DCA 1984) and State v. Jones, 425 So.2d 178 (Fla. 1st DCA 1983), support reversal. We agree.

In State v. Jones, the state appealed the trial court’s order granting the defendant’s motion to dismiss an information charging the defendant with aggravated battery. The motion alleged that an affidavit of violation of probation had previously been filed charging, in the same language used in the information, that the defendant had violated her probation by committing the aggravated battery. The motion to dismiss further alleged that at the probation revocation hearing the court found that the defendant had not violated her probation. Just as in the case before us the motion, which was successfully argued, alleged that the subsequent criminal prosecution was barred by the doctrine of collateral estoppel. On appeal, the court reversed, stating:

Collateral estoppel applies against the State only after a defendant is put in jeopardy in the first proceeding. State v. McCord, 402 So.2d 1147 (Fla.1981); State v. Kling, 335 So.2d 614 (Fla. 2d DCA 1976). Jeopardy attaches only when the defendant has been subject to the risks of a determination of guilt. Kling, at 616. Since appellant was not placed in jeopardy in the probation revocation hearing,2 she is not entitled to rely on the doctrine of collateral estoppel in the subsequent criminal prosecution.
2- A probation revocation is a sentencing function, not a trial. Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947); Young v. State, 305 So.2d 307 (Fla. 3rd DCA 1974), cert. den. 317 So.2d 762 (Fla.1975); McNeely v. State, 186 So.2d 520 (Fla. 2nd DCA 1966). Jeopardy occurs when a person is put upon trial under an indictment or information sufficient in form and substance to sustain a conviction before a court of competent jurisdiction, and a jury has been sworn and charged or the court begins to hear the evidence. See, State v. R.E.F., 251 So.2d 672 (Fla. 1st DCA 1971), affm'd 265 So.2d 701 (Fla.1972). Since appellee’s probation revocation hearing concerned only her sentence for a prior offense, she may not be said to have been put in jeopardy for the instant offense. Further, the trial judge’s refusal to revoke probation cannot be equated with an adjudication of the criminal charge, since the trial judge is vested with broad discretion to revoke, modify, or continue probation even if the charge is admitted or proved. Section 948.06, Florida Statutes.

Id. at 179.

As footnote 2 of Jones points out, the defendant at the probation revocation hearing was not put in jeopardy for the instant offenses of burglary and grand theft because the revocation hearing concerned only the sentence for the prior offense.

Approximately one year after Jones was decided,, the Third District Court of Appeal considered Green v. State. In Green, the defendant, who was on probation for another offense, was charged with certain offenses that were also named in the affidavit of probation violation. At the probation revocation hearing the court “found that the evidence failed to eliminate his doubt and was insufficient to justify revocation of Green’s probation.” 450 So.2d at 509. The defendant then moved for dismissal of the information upon the ground of collateral estoppel. The defendant’s motion was denied and the case proceeded to trial, resulting in guilty verdicts of the charged offenses. On appeal, our sister court affirmed the trial court’s order. In so doing, the court relied on State v. Jones as well as State v. McCord, 402 So.2d 1147 (Fla. 1981), which held that collateral estoppel applies against the state under fifth amendment protections against double jeopardy only if jeopardy attached to the first proceeding. The Green court concluded that because a probation revocation proceeding is, in reality, a deferred sentencing hearing and probation review does not subject a defendant to jeopardy, a subsequent criminal prosecution does not violate the constitutional prohibition against double jeopardy. The court certified to the Florida Supreme Court, however, the following as a question of great public importance:

When, in a probation proceeding, the trial judge finds the evidence is insufficient to prove the criminal offense asserted as the ground for revocation, is the state collaterally estopped from trying the defendant for the same criminal offense?

Applying the rationale and holdings of Jones and Green to this case, we hold that the state is not collaterally estopped from prosecuting the defendant for the same criminal offense which was the subject of the defendant’s probation revocation proceeding at which a finding was made by the trial court that the state did not meet its burden to satisfy the conscience of the court that the defendant committed the charged act. Accordingly, we reverse and certify the same question certified in Green.

REVERSED.

CAMPBELL and SCHOONOVER, JJ., concur.

      . In fact, the record shows that the grand theft charge was not alleged in the affidavit of probation violation nor was it specifically addressed at the probation revocation hearing.


author: COBB, Judge.

text:
    Gloria Jean Harrison NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 83-357.
    District Court of Appeal of Florida, Fifth District.
    June 28, 1984.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

The defendant below, Gloria Neal, was indicted for the first-degree murder of her husband, Ronald “Doc” Neal, and the aggravated battery of one Bernice Golden. The facts adduced at trial revealed a stormy marital relationship between Gloria and Doc, with several violent physical altercations. It was Gloria’s contention that she was the victim of repeated spouse abuse by a bullying husband. The last altercation erupted at a tavern located in Midway, Florida, the community where the Neals both lived, although they had been separated at that time for two years.

Doe was drinking at the tavern. Gloria arrived in the company of one Calvin Means. She carried a concealed pistol. An argument ensued, and Doc first knocked Means unconscious, then knocked Gloria down. She got up, saying, “I’ll be back, I’ll kill you,” and left the tavern. Sometime later (estimates from five to thirty minutes) she came back and commenced shooting at Doc, who ran from the tavern with Gloria in pursuit. Three or four shots were fired, at least two inside the tavern. Doc was hit twice and died; Bernice Golden was struck once and survived.

The police later arrested Gloria at her cousin’s house nearby. The arresting officer inquired about the ' gun, and Gloria opened her sweater and showed the officer that she carried it in her brassiere. The officer took the gun from her. On the way to the police station, she inquired about Doc’s condition, stating that she had shot him and he had hit her. At trial, defense counsel did not object to the admission of this statement. However, over defense objection, the trial court admitted into evidence a taped confession taken later at the police station. At trial, the defendant testified. She emphasized that Doc had continually physically abused her, and on the night of the shooting he had hit Calvin Means and her. According to Gloria, she shot Doc because she was very upset about the hitting.

Presented with the foregoing evidence, the jury returned guilty verdicts on second-degree murder and aggravated battery. The court, based on these verdicts, then made a finding of guilt regarding a violation of probation on a previous charge of arson against Gloria Neal. The trial court adjudicated her guilty of the second-degree murder and aggravated battery and sentenced her to ten-year terms on each, to run concurrent with each other. As to the violation of probation, the trial court sentenced the defendant to a concurrent five-year prison term, and retained jurisdiction over the entire five-year sentence.

We must reverse for a new trial because of the arbitrary and unreasonable action of the trial judge in announcing, during the charge conference, that closing arguments would be limited to twenty-five minutes for each side. Both defense counsel and the state objected, to no avail. Defense counsel, emphasizing that her client was on trial for first-degree murder, requested a forty-five minute limit. This was refused.

In May v. State, 89 Fla. 78, 103 So. 115 (1925), the Florida Supreme Court said:

But the limitation of the time for argument must of necessity, within reasonable bounds, rest in the discretion of the trial court. This is the general rule. The right may be waived, but, when requested, reasonable time must be allowed. The question to be determined is what is reasonable time, and this depends upon the facts and circumstances of each case. No hard and fast rule can be prescribed. But, if it appears that the time for argument is unreasonably limited, such action will be held an abuse of discretion, requiring a reversal of the judgment for new trial.

May, 103 So. at 116. The May court held that a twenty-minute limitation of closing argument deprived the defendant of a fair trial where he faced a possible twenty-year imprisonment upon conviction. The court also pointed out that although the facts at trial were not complicated, there were sharp conflicts in the evidence on material issues. Both the state and the defendant called several witnesses and the testimony at trial consumed “several hours.”

The instant case took a full day of jury selection, two full days of testimony and an added day for jury deliberation. Gloria Neal was charged with first-degree murder which, upon conviction, would result in a minimum mandatory twenty-five year prison term. §§ 775.082(1) and 782.-04(l)(a), Fla.Stat. (1981). The conviction for second-degree murder carries a possible penalty of life imprisonment. § 782.04(2), Fla.Stat. (1981). In fact, Gloria Neal was sentenced to ten years imprisonment as to the murder, not to mention the concurrent ten-year sentence for the second charge of aggravated battery. Additionally, the court retained jurisdiction over the first five years of each sentence. While the facts as to what occurred at the scene of the crime were fairly simple, there was sharp disagreement concerning the question of premeditation, and this case raised the novel and complex spouse abuse defense, combining theories of self-defense and temporary insanity. We believe that May mandates a new trial in the instant case. See also Cooper v. State, 106 Fla. 254, 143 So. 217 (1932).

In view of the necessity for a new trial, we also note that it was error to admit the defendant’s taped confession. This confession came after Gloria Neal had thrice requested the assistance of counsel after Miranda warnings. The interrogation officer continued to discuss the case with her and did not attempt to secure the requested attorney. The confession was not given in direct response to interrogation, but we believe it to have been induced by the continued discussion of the case by the detective and his advice to Neal to confess. This violated Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The third point raised by appellant is that the order revoking her probation on attempted arson imposes a five-year prison term with retention of jurisdiction over all five years. This contravenes the applicable statute, section 947.16(3), Florida Statutes (1982 Supp.), in two respects: first, retention can be for only one-third the sentence; second, the applicable statute allows for retention of jurisdiction by the trial court only for certain enumerated offenses — and attempted arson is not one of them.

The state responds that this issue cannot be raised on appeal because it was not presented to the trial court. This argument in regard to sentencing errors of the nature herein concerned was recently rejected by the Florida Supreme Court in State v. Rhoden, 448 So.2d 1013 (Fla.1984). See also Weston v. State, 452 So.2d 95 (Fla. 1st DCA 1984).

The judgments and sentences for second-degree murder and aggravated battery are reversed, as is the revocation order and judgment thereon dated February 16, 1983. This cause is remanded for a new trial on the charges of second-degree murder and aggravated battery, and a new probation revocation hearing in regard to the prior attempted arson charge.

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

      . The state did not seek the death penalty.

      . Neal was arrested on December 26, 1981. She was sentenced on February 16, 1983. Under the law in effect on the date of Neal’s arrest, a trial court could retain only up to one-third of a sentence. By a 1982 amendment to section 947.16(3), effective April 20, 1982, a trial court was authorized to retain up to one-half. This 1982 amendment, however, was short-lived. The legislature, by Laws 83-131 § 9, changed the maximum retention period back to one-third, effective June 15, 1983.
      Notwithstanding that the one-half retention was in effect at the time of Neal’s sentencing, the trial court could only have retained up to one-third, which was the law in effect at the time of the offense. To allow retention up to one-half would be an ex post facto application of the 1982 amendment. See: Hayes v. State, 448 So.2d 84 (Fla. 2d DCA 1984) [9 FLW 846]; Reid v. State, 440 So.2d 651 (Fla. 2d DCA 1983).


author: ORFINGER, Chief Judge.

text:
    Bennie JESS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-431.
    District Court of Appeal of Florida, Fifth District.
    June 28, 1984.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

Defendant appeals from a denial of his motion for discharge on speedy trial grounds, following a plea of nolo conten-dere in which he reserved for appeal the denial of his dispositive motion. We affirm.

Defendant was a prisoner at Marion Correctional Institution in Marion County, Florida when he escaped from there on August 12, 1980. A capias was issued for his arrest on August 29, 1980. Defendant was arrested in Georgia on January 12, 1982 on Georgia charges. The record discloses that on May 12, 1982 he was transferred from Camilla, Georgia to Apalachee Correctional Institution in Sneads, Florida, and that the following day, he was transferred to Baker Correctional Institution at Olustee, Florida. There is nothing in the record to show the disposition of the Georgia charges or the reason for his transfer to Florida. The record is clear, however, that no one notified Marion County officials that defendant was back in Florida.

In September of 1982, defendant had a parole interview and was informed that the escape charge was still pending. Defendant wrote a letter to the Clerk of the Court in Marion County to inquire about the status of the escape charge. On November 4, 1982, defendant was served with the August 29, 1980 capias at Baker Correctional Institution and the following day was booked into the Marion County Jail.

In his motion for discharge, defendant contends that speedy trial time began to run on his escape charge when he was returned to Florida on May 12, 1982. If he is correct, then the motion for discharge should have been granted because he was not brought to trial on the escape charge within 180 days of that date. On the other hand, the State contends that under the facts here, the time did not begin to run until November 4, 1982, when defendant was served with the capias on the arrest charge.

Florida Rule of Criminal Procedure 3.191(a)(1) states that every person charged with a crime by indictment or information shall without demand be brought to trial within 180 days if the crime charged is a felony. That section of the rule also provides that the time period established by the speedy trial rule commences when a defendant is taken into custody. “Custody” is defined in Florida Rule of Criminal Procedure 3.191(a)(4) as follows:

For purposes of this Rule, a person is taken into custody, (i) when the person is arrested as a result of the conduct or criminal episode which gave rise to the crime charged, or (ii) when the person is served with a notice to appear in lieu of physical arrest.

As applied to persons confined to jail outside of Florida, Rule 3.191(b) now provides:

A person who is in Federal custody or incarcerated in a jail or correctional institution outside the jurisdiction of this State or a subdivision thereof, and who is charged with a crime by indictment or information issued or filed under the laws of this State, is not entitled to the benefit of this Rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending and until written notice of this fact is filed with the court and served upon the prosecutor. For such persons, the time period under (a)(1) commences on the date the last act required under this section occurs....

Jess was in a Georgia jail on Georgia charges. There is nothing in the record to indicate that Jess was returned to Florida because of the escape charge. On the contrary, the record is much more susceptible of the inference that he was returned to complete his unserved sentence. He was not returned to Marion County from where he had escaped, but was returned to Apala-chee in Jackson County, and the next day was sent to Baker in Baker County, as part of the general prison population. Marion County officials were not aware of the fact that Jess had been returned to Florida until they received a communication from him inquiring about the escape charge, following which they served the outstanding capi-as and took him into custody on that charge. At the earliest therefore, speedy trial began to run here when the capias was served on Jess and he was taken into custody on this charge. Because 180 days had not elapsed between that date and the time Jess filed his motion for discharge, the trial court correctly denied the motion.

AFFIRMED.

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

      . The State agrees that there were no circumstances which tolled the running of speedy trial time, if the time started to run when defendant contends it did.


author: COWART, Judge.

text:
    STATE of Florida, Appellant, v. Allen D. GENNARI, Appellee.
    No. 83-733.
    District Court of Appeal of Florida, Fifth District.
    June 28, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellant.
    Flem K. Whited, III, Daytona Beach, for appellee.
   COWART, Judge.

This case involves the authority under section 901.15, Florida Statutes (1983), of a law enforcement officer to arrest a person without a warrant.

A waitress in a restaurant telephoned the police and reported that she had seen marijuana before and that she had seen what looked like, and she believed to be, marijuana in the possession of a person in the restaurant. When the police officer arrived the waitress pointed out the defendant as that person. The officer searched the defendant, found marijuana, and arrested him. After arresting the defendant, the officer, having earlier observed the defendant attempting to kick his knapsack under his seat, searched the knapsack and discovered more marijuana. The trial court suppressed the seized evidence and the State appeals. We reverse.

The fact that the police officer in describing his search of the person of the defendant stated he “patted him down and found the narcotics in his right pocket” did not bring into relevancy the stop and frisk doctrine and statute (§ 901.151, Fla.Stat. (1983)) which limits the officer’s right to make a limited search (pat down or frisk) only when the officer has probable cause to believe the detained person is armed with a dangerous weapon.

Under the facts here, even before the search or pat down, the officer had reason to believe (probable cause) that a felony had been, or was being committed and reason to believe that the defendant had committed or was committing it, or that the defendant was committing a felony or misdemeanor in the presence of the officer, and, therefore, pursuant to section 901.15, Florida Statutes (1981), the officer was authorized to make an arrest of the defendant without a warrant.

Appellee relies on State v. Lundy, 334 So.2d 671 (Fla.4th DCA 1976). The facts in Lundy are very similar to the facts in this case. The Lundy court stated:

The search of the defendant’s person was not incident to a lawful arrest, because at the time of the search defendant had not been arrested.
334 So.2d at 672.

Accordingly, the Lundy court proceeded to consider whether the circumstances were sufficient to justify temporarily detaining Lundy and found that they were. The Lundy court then considered whether there was probable cause for the officer to believe that Lundy was armed with a dangerous weapon so as to authorize a lawful frisk (pat down or limited search), found there was not, and, consequently, held that the trial court had properly suppressed the evidence seized as a result of what was considered an illegal search incidental to a lawful detention. We do not read Lundy to reach or address the exact question in this case; that is, whether the facts gave the officer probable cause to arrest the defendant without a warrant. State v. King, 405 So.2d 770 (Fla.5th DCA 1981), did not consider Lundy. However, to the extent that Lundy holds that a search cannot be incidental to an arrest if it precedes the arrest, King appears to be in conflict with Lundy. As to this point of law we follow King and express conflict with Lun-dy.

Accordingly, we hold State v. King, 405 So.2d 770 (Fla.5th DCA 1981), is in point, the search of the defendant’s person and knapsack were incidental to a lawful arrest and the seizure of the marijuana was lawful, the arrest was legal, and the evidence should not have been suppressed,

REVERSED AND REMANDED.

ORFINGER, C.J., and FRANK D. UP-CHURCH, Jr., J„ concur.

      . Probable cause "includes the knowledge of such facts and circumstances that rise to a level which would warrant an individual of reasonable caution to believe that an offense was being, or is being, committed." Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). See also State v. Jones, 417 So.2d 788 (Fla. 5th DCA 1982). As to reasonable suspicion justifying detention and inquiry, see State v. Hunt, 391 So.2d 760 (Fla. 5th DCA 1980).


author: COLEMAN, T.P., Associate Judge.

text:
    Henry HARVEY, d/b/a Hi Neighbor Store, Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, DEPARTMENT OF BUSINESS REGULATION, Appellee.
    No. 83-1217.
    District Court of Appeal of Florida, Fifth District.
    June 28, 1984.
    Aaron A. Green, P.A., Gainesville, for appellant.
    Louisa E. Hargrett, Tallahassee, for ap-pellee.
   COLEMAN, T.P., Associate Judge.

This is an appeal from a final order of the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, (DABT), revoking appellant’s alcoholic beverage license. The license revocation was based upon findings that the appellant’s “Hi Neighbor Store” was used for gambling purposes, for the sale of narcotics and was a public nuisance in violation of Sections 893.13(2)(a)(5), 849.08, and 823.10, Florida Statutes (1981).

A hearing examiner from the Division of Administrative Hearings conducted a hearing on March 10, 1983. The hearing examiner made recommended findings of fact and law in support of his conclusion that the alcoholic beverage license of the appellant should be revoked. DABT entered an order adopting all the hearing officer’s recommended findings of fact and all but one of his recommended findings of law. The recommendation that the appellant’s license be revoked was also accepted and adopted.

The sole issue presented on this appeal is whether the decision to revoke the appellant’s beverage license was supported by substantial competent evidence in the record.

The appellant maintains that the findings of fact below were insufficient because they did not comport with the standard of proof required for license revocation proceedings. Prior to the adoption of Florida’s Administrative Procedure Act it had been held that the burden of proof required in such proceedings was by “clear and convincing evidence”. Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). Subsequent to the enactment of the Administrative Procedure Act it has been held that the burden to be met is that of “substantial competent evidence”. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

In his recommended order the hearing officer applied the former standard; DABT did not accept that finding of law in its order. The apparent effect of the DABT’s order is to reject “clear and convincing evidence” as the standard to be applied in such proceedings, substituting in its stead the requirement that a revocation must be based upon “substantial competent evidence”. Since the hearing officer appears to have applied the higher standard of proof no prejudice has resulted to the appellant. The evidence presented clearly substantiates the findings of the hearing officer, accepted by DABT, finding that numerous violations of law took place on the premises of the Hi Neighbor Store.

The appellant contends that there was no evidence upon which it could be found that he was the licensee during the periods of time in question.

There was introduced into evidence a certified copy of a beverage license issued to the Appellant for the period of October, 1982, through September 30, 1983. This was a “renewal” license. Offenses were found to have been committed on the premises on various dates between June 22, 1981, and July 6, 1982.

All of the offenses except one were found to have been committed on or after July 10, 1981. On that date the appellant, in response to an inquiry from a Deputy Imperial, said that a “Michael McIntyre” worked for him as a manager of the premises. The only reasonable implication of this statement is that the appellant was the owner of the business, hence the licensee, on July 10,1981. It was reasonable for the hearing officer to conclude, therefore, that the appellant was the licensee on that date of the renewal license. It is also noted that counsel for appellant continuously referred to him as the licensee during the hearing.

The order of the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, is affirmed.

AFFIRMED.

DAUKSCH and COWART, JJ., concur.


text:
    William FREDERICK, Appellant, v. STATE of Florida, Appellee.
    No. 83-1432.
    District Court of Appeal of Florida, Fifth District.
    June 28, 1984.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

The issue in this case is whether or not the state can rely on the burglary presumptive intent statute, section 810.07, Florida Statutes (1981), when it has charged an intent to commit a specific offense. The Second District has held that the state, under such circumstances, may not rely on the presumption. T.L.J. v. State, 449 So.2d 1008 (Fla. 2d DCA 1984); Bennett v. State, 438 So.2d 1034 (Fla. 2d DCA 1983). The Third District takes the opposite position, based upon the following rationale:

If the state were precluded from using the presumption by virtue of charging the intent to commit a specific offense, there would be no incentive for the state to ever enumerate the particular offense. We hold, therefore, that when the state charges that the defendant did intend to commit a specific offense after the breaking and entering, it may avail itself of section 810.07.

L.S. v. State, 446 So.2d 1148, 1149-50 (Fla. 3d DCA 1984).

We agree with the Third District, and certify conflict with the Second District. See Fla.R.App.P. 9.030(a)(2)(A)(vi). Therefore, we affirm appellant’s revocation of probation because of his adjudication of guilt of the crime of burglary.

AFFIRMED.

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

      . Section 810.07, Florida Statutes (1981), provides:
      Prima facie evidence of intent. — In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense.


author: PER CURIAM.

text:
    Gregory Terrance TOWNER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1472.
    District Court of Appeal of Florida, Fifth District.
    June 28, 1984.
    James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

ORFINGER, C.J., and DAUKSCH, and FRANK D. UPCHURCH, Jr., JJ., concur.


author: SHARP, Judge.

text:
    Willie Lee ROSE, Appellant, v. STATE of Florida, Appellee.
    No. 82-1556.
    District Court of Appeal of Florida, Fifth District.
    June 28, 1984.

      James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ON MOTION FOR REHEARING

SHARP, Judge.

The opinion previously issued on March 22, 1984, is withdrawn, and the following opinion is substituted in its stead.

Rose appeals his judgment adjudicating him guilty of robbery and his sentence of ten years imprisonment. We previously reversed and remanded this cause because the record that was before us established that the acting circuit court judge was without jurisdiction to try the matter on the second day of trial and to subsequently sentence Rose. By a timely motion for rehearing, the state has belatedly advised us of the existence of appropriate orders granting the acting circuit court judge the authority to act on the questioned days. The state’s motion and exhibits are supported by an affidavit from the circuit court clerk. Because the acting circuit court judge had jurisdiction over this case, and because no other error is demonstrated, the final judgment and sentence are affirmed.

AFFIRMED.

DAUKSCH and FRANK D. UP-CHURCH, JJ„ concur.

      . § 812.13(2)(c), Fla.Stat. (1981).


text:
    William Lee McCORKLE, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. 84-716.
    District Court of Appeal of Florida, Second District.
    June 29, 1984.
    William Lee McCorkle, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

Petitioner filed a petition for writ of ha-beas corpus asking for a belated direct appeal in two cases. We deny the petition. In one of the cases, petitioner pleaded nolo contendere without reserving the right to appeal any issue. Petitioner pleaded guilty in the other case. In neither of the cases did Petitioner file a motion to withdraw his plea or to attack the voluntariness of his plea. In both cases the sentences imposed were within the maximum allowed by law. Therefore, petitioner has no right to a direct appeal in either case.

The petition for writ of habeas corpus is DENIED.

. RYDER, A.C.J., and DANAHY and LE-HAN, JJ., concur.


text:
    Edward R. ROZELL v. LOUISIANA ANIMAL BREEDERS COOPERATIVE, INC., et al.
    No. 82-C-2380.
    Supreme Court of Louisiana.
    June 30, 1983.
   Correction for opinion published at 434 So.2d 404 at page 408 of vote of DENNIS and LEMMON, JJ.

DENNIS and LEMMON, JJ., concurred and will assign reasons.


author:
LEMMON, Justice.
     CALOGERO, Justice,

text:
    STATE of Louisiana v. Gerald A. BOSWORTH.
    No. 80-KA-1619.
    Supreme Court of Louisiana.
    April 2, 1984.
    Rehearing Denied July 17, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.
    Robert Glass, Glass & Reed, New Orleans, for defendant-appellant.
   LEMMON, Justice.

This seemingly simple case, which involves a plea of guilty to the crime of contributing to the delinquency of a juvenile, has resulted in a series of hearings in the district court and a series of opinions by this court. In the most recent decision, this court on rehearing conditionally affirmed the denial of a motion to set aside the guilty plea on various grounds, but remanded the case to the trial court to conduct a hearing on whether the plea was based in any significant degree on an alleged promise by the district attorney to recommend probation. Defendant has now appealed from an adverse decision by the trial court after the hearing. We affirm the conviction and sentence, concluding that defendant failed to bear his burden of proof regarding the plea bargain and is therefore not entitled to have the plea set aside.

Defendant was indicted in January, 1977 on two counts of contributing to the delinquency of a juvenile by supplying marijuana to his 16-year old niece. La.R.S. 14:92. After his arrest, defendant publicly admitted the truth of the charges in a published newspaper article. Defendant later retained an experienced criminal lawyer and entered pleas of not guilty and not guilty by reason of insanity, but ultimately entered into a plea bargain. (For a full history of the case, see Bosworth III, on rehearing.) Pursuant to the agreement, defendant entered a guilty plea to one count on August 24, 1977, and the district attorney dismissed the other count. After the guilty plea, the trial judge ordered a pre-sentence investigation.

Present counsel for defendant enrolled in the ease after the guilty plea, but prior to the sentencing. Upon learning that the trial judge intended to sentence defendant to a term of imprisonment at hard labor, counsel requested access to the presen-tence investigation report. When the trial judge refused, this court granted supervisory writs and ordered that the report be disclosed to counsel (subject to deletion of the source of certain confidential communications, if any). See Bosworth I, 360 So.2d 173.

The trial judge, after conducting a sentencing hearing, sentenced defendant to one year imprisonment at hard labor. On appeal, this court affirmed the conviction, but set aside the sentence and remanded the case to the trial court for resentencing, concluding that the trial judge erred in treating the offense as a felony rather than a misdemeanor. See Bosworth II, 373 So.2d 152.

While the case was pending in the trial court on the remand for resentencing, defendant filed a motion to set aside the guilty plea on the grounds (1) that he did not enter the plea knowingly and intelligently and (2) that former defense counsel labored under a conflict when he advised defendant to plead guilty. After conducting a hearing, the trial judge denied both motions and resentenced defendant to one year in the parish prison, which was the maximum sentence for the offense as a misdemeanor at the time of its commission. However, because the trial judge had stated during the hearing that no one from the district attorney’s office had recommended probation to him, defense counsel immediately filed for reconsideration of the ruling on the motion to withdraw the plea, adding the additional ground that the plea was induced in substantial part on the promise of the district attorney to recommend probation and that the district attorney had failed to do so. Although the trial judge scheduled a hearing on the motion, no evidence was presented on the scheduled date, and the trial judge denied the motion after hearing argument. Defendant then appealed from the sentence and from the denial of the various motions to set aside the guilty plea.

On original hearing on appeal, this court affirmed the denial of the various motions to set aside the guilty plea, but remanded for resentencing on the basis that the trial judge abused his discretion by sentencing defendant to a term in excess of six months, because the Legislature, subsequent to the commission of the crime, had reduced the maximum penalty to six months. On defendant’s application, this court granted a rehearing. In the decision on rehearing, the court again affirmed the denial of the motions to set aside the guilty plea on the two grounds initially raised, but noted that neither defendant nor the district attorney was present at the hearing relative to the motion based on the allegedly breached plea bargain. Because this court could not determine from the record the merits of defendant’s claim that such an agreement had in fact been made and breached, the case was remanded to the trial court for a hearing at which defendant would have the burden to prove that his plea was based in a significant degree on a promise by the district attorney to recommend probation and that the promise had not been fulfilled. See Bosworth III, 415 So.2d 912.

On remand, the trial judge conducted another hearing and denied relief. Hence this appeal.

At the hearing on remand, the district attorney categorically denied making a promise to recommend a suspended sentence. The original defense attorney, although asserting that the district attorney had made this promise, could not remember whether the alleged promise was made before or after the plea of guilty. Only defendant was sure that the alleged promise to recommend probation was part of the bargain. However, his testimony not only was self-serving, but also was based on recollections of seven-year old events. Resolving the conflicting testimony, the trial judge answered in the negative the question posed by our remand order on rehearing in Bosworth III (whether such a prose-cutorial promise was made). We agree that defendant simply failed to establish at the hearing on remand that the district attorney had promised to recommend probation prior to defendant’s entering the plea as an inducement to encourage defendant to forego his trial rights.

At the close of the hearing, however, defense counsel argued that a resolution of the credibility issue in favor of the district attorney’s version of the facts would not determine the ultimate question of the validity of defendant’s plea. Counsel contended that the judge should further determine whether defendant’s former attorney was ineffective in creating in his client’s mind the substantial misimpression that the district attorney would recommend probation. For several reasons, we agree that the trial judge did not abuse his discretion in refusing to grant relief on that basis five years after the entry of the plea.

The trial judge at the hearing on September 17, 1982 was required to determine, on the basis of evidence of events which occurred prior to August 24, 1977, whether (1) defendant, prior to his guilty plea, in fact believed that the district attorney would recommend probation, (2) whether that belief was a reasonable one under the overall circumstances, and (3) whether that belief (if it in fact existed) played a substantial role in inducing defendant to enter a guilty plea.

Defendant retained present counsel about four months after the plea was entered (about January, 1978), but prior to imposition of the initial sentence in October, 1978. In January and February, 1978, former counsel wrote two letters (introduced in the record in the present proceedings) to present counsel, in which he stated that the district attorney “did, to the best of my knowledge state that he would make a recommendation of a suspended sentence”. However, the February 2, 1978 letter also alerted newly-retained counsel to the fact that the district attorney had recently stated that he did not recall any such promise and that “he did not want to make a recommendation of a suspended sentence because he did not want to get ‘in the middle’ ”. That letter indicated that the prosecutor merely took a neutral stance on the question of sentence.

Defense counsel also obtained, prior to the initial imposition of sentence, a copy of the presentence report, which contained the district attorney’s statement that “he would not publicly criticize the sentencing judge in this case if Gerald Bosworth was not given a jail sentence”. Defendant and present counsel therefore must have been aware, relatively soon after the plea was entered and certainly before the initial sentence was imposed, that the district attorney was not going to recommend probation and that the original defense attorney may have mistaken the prosecutor’s “no opposition” attitude toward a suspended sentence for a promise to affirmatively recommend probation. At any rate, despite the questionable status of the recommendation, defense counsel did not make any effort at the time to determine whether a positive prosecutorial recommendation had been made or, alternatively, to withdraw the plea.

This failure to act before sentencing indicates either that defendant did not regard the alleged promise to recommend probation as a substantial factor in his decision to enter the plea or that defendant was satisfied with the prosecutor’s “no opposition” position. Had defendant really relied in any significant degree on the alleged promise, he was certainly on notice prior to imposition of the initial sentence that some misunderstanding may have occurred.

The trial judge’s conclusion that the alleged promise did not serve as a substantial inducement for the plea is also supported by the fact (noted in our earlier opinion in Bosworth III) that defendant from the very beginning conceded that he permitted and encouraged the use of marijuana by the juvenile. As noted in the earlier decision, once former defense counsel investigated the possibility of an insanity defense and determined that none existed, defendant never intended to contest his guilt, but rather planned to enter a plea of guilty and to seek sentencing leniency based on admission of his guilt, his contrition, his rehabilitation, and the likelihood that such conduct would not recur.

Furthermore, defendant himself admitted that his primary interest at the outset was to have the offense reduced to the status of a misdemeanor. That result was accomplished in his second appeal to this court (Bosworth II). Moreover, it is undisputed that the trial judge from the beginning declined to make any commitment concerning the ultimate sentence, although defendant and initial defense counsel both hoped for a sentence of probation.

Finally, we recognize that guilty pleas, being convictions, should be afforded a great measure of finality. See Blackledge v. Allision, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). The plea presently under attack was entered in August, 1977. Prior to the September 8, 1978 sentencing hearing, defendant and defense counsel were aware of the fact that the district attorney was going to do no more than adopt a “no opposition” position on the question of probation. They were also aware that initial defense counsel had the impression that the prosecutor would make an affirmative recommendation regarding probation. Nevertheless, the subject of the prosecutor’s recommendation was not raised until years later. Defendant’s failure to pursue this matter at the time of initial sentencing led the trial judge to the reasonable conclusion that any such agreement was not a substantial factor in defendant’s decision to plead guilty.

Accordingly, the trial court’s refusal to allow the defendant to withdraw his plea is affirmed.

CALOGERO, J., dissents and assigns reasons.

WATSON, J., dissents believing that there was a sufficient showing of an un-kept plea bargain.

CALOGERO, Justice,

dissenting.

I would reexamine this Court’s previous determination that the defendant’s guilty plea, taken without advisement as to his privilege against self-incrimination, is constitutionally valid, and would hold that same guilty plea not valid for the reasons expressed in my dissent in State v. Bosworth, 415 So.2d 912 at 928, 929 (La.1982).

       Blanche, Justice, recused.

      . See State v. Bosworth, 360 So.2d 173 (La. 1978), in which this court granted a presentence writ and ordered disclosure of the presentence report (Bosworth I); State v. Bosworth, 373 So.2d 152 (La.1979), in which this court held on appeal from the defendant’s initial sentence of one year imprisonment at hard labor that the offense of contributing was a misdemeanor, not a felony (Bosworth II); and State v. Bosworth, 415 So.2d 912 (La.1982), in which this court affirmed defendant’s guilty plea, but ordered the sentence reduced from one year to a maximum of six months without hard labor and remanded for the hearing on allegations that the district attorney had breached his obligation under the plea agreement (Bosworth III).

      .Defendant arguably was not entitled to an appeal from the denial of his motion to set aside guilty plea, since the case had been remanded solely for the purpose of resentencing as a misdemeanor. However, the court treated all issues as properly raised on appeal.

      . Defense counsel had filed a motion to limit sentencing alternatives to a maximum of six months in parish jail in September, 1978, prior to the initial sentencing.

      . The trial court additionally sentenced defendant to serve six months in the parish jail.

      . The trial judge stated for the record in denying defendant's motion to withdraw the plea that he interpreted the prosecutor’s “no opposition” statement in the presentence report as reflecting a favorable inclination toward a suspended sentence. He further stated that he placed much more emphasis on the recommendation for leniency made by the judge of the United States District Court for whom defendant had served as a clerk.

      . As late as May 6, 1980, defendant filed an affidavit acknowledging that he "shared marijuana" with his niece, but denying giving her or any of her friends any other illegal drugs.

      . Defendant was deeply concerned about the effect of a felony conviction on his license to practice law.

      . A defendant is not entitled to withdraw a plea simply because his hopes for probation were not realized, even if counsel’s advice encouraged those hopes. See State v. Lockwood, 399 So.2d 190 (La.1981); State v. Deakle, 372 So.2d 1221 (La.1979); State v. Delgado, 388 So.2d 384 (La.1980). This is particularly true in this case, since defendant was an experienced attorney who was represented by experienced defense counsel. He was aware of the risks and possible advantages of entering a guilty plea. Defendant clearly believed that the best of his unpleasant choices was to enter the plea. Despite the confusion over the prosecutor’s sentencing recommendation, defense counsel competently advised his attorney-client.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Darnell BROWN.
    No. 83-KA-0579.
    Supreme Court of Louisiana.
    May 14, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William Campbell, Asst. Dist. Atty., for plaintiff-appellee.
    M. Craig Colwart, Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   CALOGERO, Justice.

Defendant-appellant in this criminal prosecution attacks the trial court’s overruling his motion to quash for the state’s failure to commence his second trial timely. For the reasons which follow, this ruling will be reversed. The motion to quash is meritorious.

The history of this prosecution is a bit lengthy. On July 31, 1978, defendant Darnell Brown was charged by bill of information with simple burglary, a violation of La.R.S. 14:62. By a five to one vote, a six person jury found him guilty as charged. Thereafter Brown was adjudicated a third felony offender and sentenced to twenty-two years at hard labor. On appeal, this Court affirmed. State v. Brown, 371 So.2d 746 (La.1979). Then defendant applied for, and was granted writs of certiorari, by the United States Supreme Court. Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980). In June of 1980, the United States Supreme Court reversed and remanded the case to this Court for further proceedings, for the reason that Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1980) was retroactively applicable to this Brown prosecution and that, thus, a five of six jury conviction of Brown was unconstitutional. Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980). (See appendix to this opinion.)

On remand, and acting on the mandate of the United States Supreme Court, this Court in a per curiam opinion ordered a new trial on September 12, 1980. State v. Brown, 387 So.2d 1180 (La.1980). In July, 1981, defendant Brown entered a plea of not guilty. On September 30,1981, he filed a motion to quash based upon untimely prosecution. When the trial court denied that motion, defendant withdrew his former plea and entered a plea of guilty, reserving his right to appellate review of the denial of the motion. State v. Crosby, 338 So.2d 584 (La.1976). On December 17, 1981, defendant was sentenced to serve ten years at hard labor, with credit for time served. This appeal followed.

The procedural history of this case prior to this Court’s action on September 12, 1980, is found in the appendix to this opinion.

The sole issue presented by this appeal is whether the defendant Darnell Brown's prosecution after the United States Supreme Court’s reversal, and this Court’s responsive judgment with remand to the district court for retrial, was untimely. La. C.Cr.P. art. 582 provides:

When a defendant obtains a new trial or there is a mistrial, the state must commence the second trial within one year from the date the new trial is granted, or the mistrial is ordered, or within the period established by Article 578, whichever is longer.

Defendant’s alternate contention is that the state had to commence his second trial within one year from September 12, 1980, the date this Court handed down its per curiam opinion which remanded his case to the district court for a new trial. The state on the other hand argues that the prescriptive period did not begin until October 31, 1980, the date of a district court minute entry in this case:

Louisiana Supreme Court, No. 63171. ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES. “CONVICTION AND SENTENCE REVERSED AND SET ASIDE AND REMANDED FOR A NEW TRIAL” Decree received and filed in record.

Then, argues the state, the prescriptive period was suspended when the defendant filed his motion to quash on September 30, 1981, until the trial court denied the motion on November 23, 1981, so that the defendant’s subsequent guilty plea entered on December 17, 198Í, was within the time limitations allowed for prosecution.

Neither defendant’s September 12th contention, nor the state’s October 31st contention, is correct. Nonetheless defendant’s position on the expiration of the time limit within which to reprosecute prevails, for September 26, 1980, is the date from which to measure the one year. A litigant has fourteen days after judgment in this Court within which to apply for a rehearing. Supreme Court Rule IX (effective January 1, 1978); La.C.Cr.P. art. 922. And the judgment becomes final when the rehearing is denied, or the fourteen day period lapses without an application for rehearing. State v. Washington, 430 So.2d 641 at 645 (La.1983), citing State v. Washington, 386 So.2d 1368 (La.1980). In this case rehearing was not applied for after this Court ordered a new trial on September 12, 1980. Consequently, this Court’s ordering, or granting, a new trial and remanding the case to the district court for that purpose became final fourteen days after rendition of that judgment. State v. Lonigan, 298 So.2d 739 (La.1974). Adding one year (La.C.Cr.P. art. 582) and fourteen days (La.C.Cr.P. art. 922) to September 12, 1980, the state had until September 26, 1981 in which to begin the second trial.

The state contends that prescription only began to run on October 31, 1980, because it was only on that day that the trial court was notified that a retrial was required.

To so argue, the state relies upon La.C.Cr.P. art. 923 which provides:

When a decision of an appellate court becomes final, the clerk of court shall transmit a certified copy of the decree to the court from which the appeal was taken. When the judgment is received by the lower court, it shall be filed and executed. (Emphasis provided.)

Thus, reading together the provisions of La.C.Cr.P. arts. 916, 922, supra, and 923, the state asserts that

... since the judgment of the Supreme Court did not become final until fourteen days after the rendition of its decree, and since the judgment could not have been executed prior to recordation on October 31, 1980, prescription could not have begun to run anew [until that date].” (Emphasis provided.)

We do not agree that La.C.Cr.P. art. 923 affects the starting time of the prescriptive period in La.C.Cr.P. art. 582.

In State v. Morgan, 306 So.2d 701 at 702 (La.1975), this Court stated that “[t]he word ‘execution’ as it relates to criminal sentences, is defined as ‘the process of performing a judgment or sentence of a court.’ ” La.C.Cr.P. art. 923, then, is an article of implementation. The filing and execution of a judgment granting a new trial occurs after that new trial has been granted. La.C.Cr.P. art. 923 just addresses what shall be done once a judgment has been rendered: “it shall be filed and executed.”

The prescriptive period in La.C.Cr.P. art. 582 does not begin only at the time the judgment is filed in the clerk’s office. Were it so, the article would state as much. La.C.Cr.P. art. 582 recites, instead: “... the state must commence the second trial within one year from the date the new trial is granted. (Emphasis provided.) The two critical entities under the article are thus the state and the court which grants the new trial.

When a motion for a new trial is filed in the district court, the trial judge may grant the new trial, at which point the time begins to run under La.C.Cr.P. art. 582. Once the case is appealed, however, the trial court is without jurisdiction to entertain a motion for a new trial unless the case is remanded to that court for that purpose. La.C.Cr.P. art. 853; State v. Molinario, 383 So.2d 345 (La.1980). In the case of this defendant, Darnell Brown, the remand to the district court was not for the purpose of having the trial court entertain a motion for a new trial, but rather to conduct a new trial ordered by this Court. The trial court could not have denied the defendant a new trial at that juncture. The defendant had already been afforded relief in the form of a reversal and had been granted a new trial by this Court in keeping with its instructions from the United States Supreme Court. Because trial may not take place at the appellate level, the case was remanded to the district court for carrying out the judgment of this Court.

In summary, when a case on appeal is reversed and a new trial ordered as a result, the appellate court is the one granting the new trial and the prescriptive period set forth in La.C.Cr.P. art. 582 begins upon that court’s judgment’s becoming final, irrespective of any clerical or posting delays that may occur in the process of remanding the case back to the district court. Washington, supra; Lonigan, supra. We therefore conclude that the time to begin counting the one year period began on September 26, 1980, the date of finality of the judgment of this Court in State v. Brown, 387 So.2d 1180 (La.1980).

The state’s failure to commence the defendant’s second trial by September 26, 1981, does not fully resolve the matter, however. Prescription is interrupted if a defendant flees the jurisdiction with the purpose of avoiding detection, apprehension or prosecution. La.C.Cr.P. art. 579(1). The time limit may also be interrupted if a defendant’s presence for trial cannot be obtained by legal process or for “any other cause beyond the control of the state.” La.C.Cr.P. art. 579(2). Likewise, prescription is suspended where a defendant files motions to quash or “other preliminary plea[s].” La.C.Cr.P. art. 580.

Here, however, the defendant was at all pertinent times in the custody of the Department of Corrections at Angola. Thus, his presence for trial was available by legal process at the request of the state. As a matter of fact, the state filed one writ of habeas corpus ad prosequendum, which resulted in defendant’s appearance for arraignment. Additionally, no motions were filed on his behalf which would have interrupted the running of the time limits for retrial. Darnell Brown filed a pro se motion to fix a trial date, but a defendant’s action to set the case for trial does not interrupt the running of the prescriptive period within which the state is to commence trial. State v. Walgamotte, 415 So.2d 205 (La.1982).

The record clearly establishes that defendant filed no pre-trial motions which would have suspended the running of the time limit. The sole defense pleading filed from September 26, 1980 through September 26,1981 was a pro se motion by defendant, petitioning the trial court to fix a date for his second trial. It was probably in response to this motion that the state filed a writ of habeas corpus ad prosequendum in July of 1981 (i.e., approximately ten months after this Court ordered a new trial). Defendant’s presence was obtained, and he was arraigned on July 15, 1981. Thereafter, the record reflects that no other writs were filed by the state as would have been necessary to secure defendant’s presence for retrial in New Orleans.

On September 30, 1981, after the expiration of the time period, defendant filed a motion to quash based on a claim of prescription.

A motion to quash is the proper procedural vehicle for challenging an untimely commencement of trial. La.C.Cr.P. arts. 581 and 532(7); State v. Taylor, 439 So.2d 410 (La.1983); State v. Walgamotte, 415 So.2d 205 (La.1982).

In Taylor (prosecution for second offense DWI), 439 So.2d at 412, this Court stated:

... Once a motion to quash has been filed for untimely prosecution the state is under a heavy burden to show a legal cause for the delay. State v. Nations, 420 So.2d 967 (La.1982); Walgamotte, supra; State v. Guidry, 395 So.2d 764 (La.1980); State v. DeVito, 391 So.2d 813 (La.1980) (On Rehearing); State v. Driever, 347 So.2d 1132 (La.1977).

In this case, the record is devoid of justifiable reason or excuse for delay on the part of the state.

The defendant was entitled to rely upon La.C.Cr.P. arts. 582 and 922 which, when read together, require the commencement of a second trial within one year from the date when the order for a new trial becomes final. Defendant’s motion to quash was meritorious and should have been granted by the trial court. Taylor, supra.

DECREE

For the foregoing reasons the trial court’s denial of defendant’s motion to quash the indictment is reversed. The defendant’s motion to quash his indictment for simple burglary is sustained. The defendant is ordered released from any further detention or prosecution concerning this burglary charge.

REVERSED.

APPENDIX

The following facts are drawn from the various opinions in the case:

On July 20, 1978, defendant was apparently apprehended by police inside the residence of one Mrs. Dorsch. A back window had been broken and police found defendant packing Mrs. Dorsch’s belongings into boxes and pillow cases. On July 31, 1978, he was charged by bill of information with simple burglary, La.R.S. 14:62. At the time of the offense, Louisiana’s Constitution provided that such crimes should be tried by a jury of six, five of whom must concur to render a verdict.

Prior to trial Brown filed a motion to quash the petit jury based on the contention that, should his jury return a less than unanimous verdict, his due process rights under the Sixth and Fourteenth Amendments to the United States Constitution would be violated. The motion requested either a jury of twelve, or that the trial court require the unanimous vote of the six person panel. The court denied the motion, and on August 23, 1978, defendant went to trial with a six person jury. That same day, by a five to one vote, defendant was convicted. Defendant renewed his opposition to the verdict in a motion for a new trial, which was denied. The state filed a multiple bill under La.R.S. 15:529.1 to which defendant entered a guilty plea. Thereafter, the trial court adjudicated Brown a third felony offender and sentenced him to twenty-two years at hard labor.

On April 17, 1979, one month before this Court considered Brown’s appeal, the United States Supreme Court handed down its decision in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), sustaining challenges to provisions of Louisiana’s Constitution and Code of Criminal Procedure which sanctioned convictions for non-petty offenses by a non-unanimous verdict of a six person jury.

On May 21, 1979, this Court considered Brown’s appeal in light of the then recent decision in Burch v. Louisiana, supra, and affirmed, reasoning that “the rule of Burch, supra, should not be applied retroactively to juries empaneled prior to the date of the Burch decision.” State v. Brown, 371 So.2d 746 at 748 (La.1979).

Thereafter, defendant applied for and was granted writs by the United States Supreme Court. Brown v. Louisiana, 444 U.S. 990, 100 S.Ct. 520, 62 L.Ed.2d 419 (1979). On June 16, 1980, that Court rendered its decision, stating, “we think it apparent that the rationale behind the constitutional rule announced in Burch mandates its retroactive application.” Brown v. Louisiana, 447 U.S. 323 at 332, 100 S.Ct. 2214 at 2221 (1980).

On remand here, this Court, on September 12,1980, set aside Brown’s 1978 conviction and sentence. State v. Brown, 387 So.2d 1180 (La.1980). The Court stated at 387 So.2d 1180-1181:

Accordingly, in compliance with the mandate of the Supreme Court of the United States, that conviction and sentence of defendant Brown are reversed and set aside, and the case is remanded to the district court for a new trial before a jury of six persons, with the jury to be instructed that the verdict should be unanimous.

      . La.C.Cr.P. art. 578 provides:
      Except as otherwise provided in this Chapter, no trial shall be commenced:
      (1) In capital cases after three years from the date of institution of the prosecution;
      (2) In other felony cases after two years from the date of institution of the prosecution; and
      (3) In misdemeanor cases after one year from the date of institution of the prosecution.
      The offense charged shall determine the applicable limitation.

      . The defendant’s outset contention was that the prescriptive period for the commencement of trial began with the date of the United States Supreme Court’s action, and therefore the one year limitation within which to commence his second trial would have expired even earlier than September 12, 1981. This contention is wrong, if for no other reason than that the United States Supreme Court did not grant a new trial or order one, but merely sent the case back to this Court for “further proceedings consistent with this opinion."

      .La.C.Cr.P. art. 922(B) in effect at that time provides
      "A judgment rendered by the supreme court becomes final when the delay for applying for a rehearing has expired and no application therefor has been made.”

      . The state’s contention that it was not notified of this Court's action in this case until October 31, 1980, is puzzling, for the following reasons. The mandate from the United States Supreme Court was forwarded to this Court on July 28, 1980. On August 1, 1980, the Clerk of this Court forwarded a copy of that mandate with an appropriate cover letter to all parties involved: the Clerk of Criminal District Court; the judge of Criminal District Court, Division "F”; Orleans Parish District Attorney (attorney for the State of Louisiana) and attorneys for the defendant. On September 12, 1980, the per curiam opinion of this Court was issued. The practice in this Court at that time was to mail copies of the opinion when rendered to all interested parties, including the state. Then, after the expiration of the rehearing delays, the Clerk of this Court would mail to the clerk of the pertinent court, in this case the Criminal District Court for Orleans Parish, a notice of the finality of the judgment. The record of this case in this Court reflects that the finality of judgment notice was sent to the Clerk of Criminal District Court on October 3, 1980. Furthermore the certified copy of the trial court record lodged in this Court for purposes of this appeal evidences that a copy of this Court’s decision in Brown, No. 63,171 [it is reported at 387 So.2d 1180 (La. 1980) ], bears the stamp of the trial court’s general docket clerk, her signature, and the date of "Oct. 3, 1980,” as well as a handwritten entry "Filed 10-31-80,” bearing illegible initials.

      . La.C.Cr.P. art. 916 provides in pertinent part: "The jurisdiction of the trial court is divested and that of the appellate court attaches, upon the entering of the order of appeal.”

      . Two years from the date of the initial prosecution of Brown on simple burglary charges (July 31, 1978) had expired at the time this Court’s judgment granting him a new trial became final (September 26, 1980) so that one year from this latter date was the longer time period and the appropriate one to apply under La.C.Cr.P. art. 582.

      .La.Const. art. 1 § 17 provided, in pertinent part,
      A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict.
      Because the crime for which defendant was charged was punishable "with or without hard labor,” under the then applicable law Brown was entitled to a six person jury, five of whom had to agree in order to convict.

      . The motion to quash was grounded upon a claim under Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978).

      . In Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), (prosecution for two counts of exhibiting obscene motion pictures, La.R.S. 14:106(G), one defendant (Wrestle, Inc.) was convicted unanimously but the other (Burch) was convicted by a five to one vote. On appeal to this Court, the defendants argued that a conviction standing on a less than unanimous vote of a six person jury violated their federal constitutional rights under the Sixth and Fourteenth Amendments. This Court acknowledged that the issue was a close one, but nevertheless affirmed (with Dixon, C.J., dissenting).

        The six-person jury will still presumably engage in the longer deliberations involving more communication that the court found adequately enhances greater verdict reliability and better community representation, despite (see Johnson) the elimination of the requirement for unanimity in verdict. Or at least this court, indulging in the presumption of federal constitutionality which must be afforded to provisions of our state constitution, so concludes as to this close issue. State v. Wrestle, 360 So.2d 831 (La.1978).
      On writs to the United States Supreme Court, Wrestle, Inc. was found to lack standing. As to Burch, however, the Court agreed with his contention that a non-unanimous verdict of a six person panel violated an accused’s right to a trial by jury. Stating that "it is inevitable that lines must be drawn somewhere ...” the Supreme Court reversed. 441 U.S. at 138, 99 S.Ct. at 1627.


text:
    In re Brian T. TREACY.
    No. 84-OB-1154.
    Supreme Court of Louisiana.
    June 21, 1984.
   Petition to File a Late Application for Admission to the Louisiana State Bar Association.

ORDER GRANTING PETITIONER PERMISSION TO FILE AN APPLICATION FOR ADMISSION TO THE LOUISIANA STATE BAR ASSOCIATION

I.

Petitioner in the above captioned matter has applied to this Court for permission to file late to take the July, 1984 Louisiana State Bar Examination.

II.

This court grants permission to the petitioner to file his application immediately with the Louisiana State Bar Association.

BLANCHE, J., dissents from the order.