author: SHARP, Judge.

text:
    McDAY CORPORATION, et al., Appellants, v. COLONIAL PENN COMMUNITIES, INC., et al., Appellees. COLONIAL PENN COMMUNITIES, INC., et al., Appellants, v. COLONIAL PENN GROUP, INC., etc., et al., Appellees.
    Nos. 83-1042, 83-1243 and 84-106.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 1984.
    Rehearings Denied Jan. 11, 1985.
    Sylvia J. Walbolt and John J. Cunningham, Jr., Tampa and Alan C. Sundberg, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, and Katz, Squite-ro & Linden, Miami, for McDay Corporation and Coast Mortgage and Realty Investors.
    Ted R. Brown and Miranda Franks, of Maguire, Voorhis & Wells, P.A., Orlando, for Colonial Penn Commmunities, Inc. and Colonial Penn Group, Inc.
   SHARP, Judge.

The McDay Corporation and Coast Mortgage and Realty Investors (hereinafter collectively referred to as Buyer) appeal from a final judgment determining that Colonial Penn Communities, Inc. was entitled to retain Buyer’s $250,000.00 deposit made on a purchase and sale agreement with Colonial, because Buyer breached its agreement with Colonial by failing to close on August 30, 1982. We reverse because the record shows that Buyer did not breach the purchase and sale agreement by failing to close on that date. Accordingly, we also affirm the denial of attorney’s fees to ap-pellees in Case Number 84-106 and we reverse the attorney’s fee awarded to ap-pellees in Case Number 83-1243.

Buyer contracted to purchase a mobile home park which had been developed by Colonial in Lake County, Florida, with various other associations, including the National Retired Teacher Association (N.R.T. A.). As part of this arrangement, Colonial and N.R.T.A. entered into an agreement which obligated Colonial to perform a variety of services and functions with regard to the mobile home park. Colonial’s duties as embodied in the N.R.T.A. agreement exceeded those enumerated in the leases entered into by Colonial and the lessees of the park.

Buyer sought to prevent itself from assuming any of Colonial’s duties contained in the N.R.T.A. agreement by inserting the following clause in the purchase and sales agreement:

Buyer and Seller further agree that Buyer, by acquiring the property, is not acquiring Seller’s obligations under the Teachers Agreement, that said agreement shall not be extended or affirmed hereby and that Buyer should not otherwise be bound by its provisions, covenants and conditions.

Further, in the purchase contract there was a warranty by Colonial to the Buyer that there was no litigation as to the property that would involve the Buyer regarding Seller’s operation of the park either before or after the closing.

(g) To Seller’s knowledge, there is no litigation as to the Property that would involve the Buyer, and Seller agrees to indemnify and hold Buyer harmless from any and all damage, loss, cost and expense, including reasonable attorney’s fees, which Buyer may sustain or incur incident to any litigation existing or which may arise prior or subsequent to Closing with respect to any action or failure to act as to the Seller of the Property and the operation thereof which occurred prior to Closing, except for litigation between Buyer and Seller, or otherwise, arising out of or in connection with this Agreement or the transactions contemplated hereby.

After the purchase and sale contract had been signed, the mobile home tenants filed a lawsuit against Colonial and the Buyer, seeking an injunction against the sale, and a declaration that the services to the park would remain at the same level after the closing.

Three days before closing, the trial court issued a preliminary injunction against Colonial ordering that all of the services being delivered to the lessees be maintained at the same level as they existed on March 1, 1982, the date of the purchase and sale agreement. When Buyer refused to close because of this litigation, Colonial brought suit and the trial court found that Buyer violated the sales agreement by not closing on the contract date.

We think that there existed valid reasons for excusing Buyer’s performance on the closing date. At that time, Colonial was embroiled in a lawsuit with its tenants to determine the level of services it was obligated to provide under the terms of the leases. The fact that a preliminary injunction was issued indicates a strong possibility that the tenants would be successful on the merits on their theory that the leases entered into between themselves and Colonial were modified so as to incorporate the terms of the N.R.T.A. agreement by the course of conduct between Colonial and its tenants.

Rather than compelling the Buyer to venture out into this sea of litigation, it should have been allowed to prudently wait out the storm before closing. In sum, a buyer should not be required to buy a lawsuit, particularly one it foresaw and had adequately protected itself against in the purchase contract. Cf Walker v. Close, 98 Fla. 1103, 125 So. 521 (1929); Annot, 57 A.L.R. 1253 (1928). Accordingly, the judgments appealed in Case Numbers 83-1042 and 83-1243 are reversed; and Case Number 84-106 is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

DAUKSCH, J., concurs.

COWART, J., dissents without opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Raymond Francis HANS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1751.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1984.
    Rehearing and Rehearing En Banc Denied Feb. 7, 1985.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the conviction but remand to the trial court for an order stating with individual particularity the facts upon which it relied in retaining jurisdiction, as required by Section 947.16(3)(a), Florida Statutes (1983), and Robinson v. State, 458 So.2d 1132 (Fla. 4th DCA 1984).

GLICKSTEIN and HURLEY, JJ., and GOLDMAN, MURRAY, Associate Judge, concur.


text:
    EAU GALLIE PLACE, LTD., a Florida Limited Partnership, American Shopping Centers, Inc., General Partner, Appellant, v. MID-STATE PAVING COMPANY, INC., a Florida corporation, Appellee.
    No. 84-1445.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 1984.
    Gregory F. Reis of Adams, Hill & Ful-ford, Orlando, for appellant.
    Stephen M. Martin of Martin & Martin, P.A., Lakeland, for appellee.
   PER CURIAM.

Affirmed. See Mendez v. George Hunt, Inc., 191 So.2d 480 (Fla. 4th DCA 1966).

BOARDMAN, A.C.J., and GRIMES and SCHEB, JJ., concur.


text:
    E.M.V.-L., Appellant, v. M.M.C., Appellee.
    Nos. 83-2267, 84-1692.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Rehearing Denied Dec. 19, 1984.
    Dennis Alan Richard of Richard & Richard, Miami, for appellant.
    Bruce W. Jolly of Shailer, Purdy & Jolly, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal by the putative father from a final judgment of paternity and from post-trial motions. We affirm and write, having considered and rejected all of appellant’s arguments, only to inform the bench and bar that we join with our companion courts in approving the admissibility of the results of Human Leukocyte Antigen (HLA) test as evidence of blood comparison on the issue of paternity. McQueen v. Stratton, 389 So.2d 1190 (Fla. 2d DCA 1980); Carlyon v. Weeks, 387 So.2d 465 (Fla. 1st DCA 1980). The test is recognized as having substantial probative value in determining paternity. See Bailey v. Richardson, 412 So.2d 69 (Fla. 1st DCA 1982).

GLICKSTEIN, HURLEY and BARRETT, JJ., concur.


author: LETTS, Judge.

text:
    Edward Lee WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 84-124.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

We affirm this cause, but remand for resentencing.

Under Florida Rule of Criminal Procedure 3.701(b)(6), clear and convincing reasons for departure must be articulated in writing. Conceding that the written requirement may be satisfied by transcription into the record, see Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984), there still remains the need for articulation of what it is that is clear and convincing. We do not believe this need was satisfied here and we remand with directions that:

1. The trial judge may not depart from the guidelines because a harsher sentence will act as a “deterrent to others.” We agree that punishment should be a deterrent, but there is no cause to suppose that a sentence may be enhanced for this reason alone. If that were so, all punishments would automatically be aggravated, the very antithesis of what the guidelines were designed to accomplish.

2. The trial judge may not take into account prior “criminal activity.” However, he may consider prior criminal convictions. See Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984) and Mischler v. State, 458 So.2d 37 (Fla. 4th DCA 1984).

There is no scoresheet included in this record so that we have no way of knowing if a “double dipping” sentence was imposed. See Davis v. State, supra. However, the problem of departing the guidelines for prior convictions which have already been factored in on the scoresheets is of great concern to us. We have certified this question to the Supreme Court in Davis v. State, supra, and it would be less than fair if we failed to do the same here. Accordingly, believing the matter to be of great public importance we ask our mentors in Tallahassee the following question:

IF THE SCORESHEETS MAKE PROVISION FOR PRIOR CONVICTIONS, CAN THOSE CONVICTIONS ALSO CONSTITUTE CLEAR AND CONVINCING REASONS FOR AGGRAVATED PUNISHMENT OUTSIDE THE GUIDELINES?

AFFIRMED AND REMANDED FOR RESENTENCING.

DOWNEY and HURLEY, JJ., concur.


author: COBB, Chief Judge. COBB, Chief Judge.

text:
    Eric Antonio BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 84-493.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 1984.
    On Rehearing Jan. 17, 1985.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Chief Judge.

This appeal challenges the correctness of our determination in the case of Spurlock v. State, 449 So.2d 973 (Fla. 5th DCA 1984). Therein, we held that a youthful offender who has completed that portion of his sentence involving prison incarceration is subject to a revocation proceeding held by the trial court for misconduct occurring during the community control portion of the offender’s split sentence. Our holding was based on the provisions of sections 958.14 and 948.06(1), Florida Statutes (1983). Those provisions read as follows:

958.14 Violation of community control program. — A violation or alleged violation of the terms of a community control program shall subject the youthful offender to the provisions of s.948.06(l). 948.06 Violation of probation or community control; revocation; modification; continuance.—
(1) Whenever within the period of probation or commúnity control there is reasonable ground to believe that a probationer or offender without warrant wherever found and shall forthwith return him to the court granting such probation or community control. Any committing magistrate may issue a warrant, upon the facts being made known to him by affidavit of one having knowledge of such facts, for the arrest of the probationer or offender, returnable forthwith before the court granting such probation or community control. Any parole or probation supervisor, any officer authorized to serve criminal process, or any peace officer of this state is authorized to serve and execute such warrant. The court, upon the probationer or offender being brought before it, shall advise him of such charge of violation and, if such charge is admitted to be true, may forthwith revoke or modify the probation, place the probationer into a community control program, or continue the probation. If probation is revoked, the court shall adjudge the probationer guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation, or the offender into community control. If such violation of probation or community control is not admitted by the probationer or offender, the court may commit him or release him with or without bail to await further hearing, or it may dismiss the charge of probation or community control violation. If such charge is not at that time admitted by the probationer or offender and if it is not dismissed, the court, as soon as may be practicable, shall give the probationer or offender an opportunity to be fully heard on his behalf in person or by counsel. After such hearing, the court may revoke, modify, or continue the probation or community control or place the probationer into community control. If such probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control.

In the instant case, the defendant below, Eric Bradley, was adjudged guilty of armed robbery in 1981 and, as a youthful offender, committed to the custody of the Department of Corrections for the maximum six-year term, the first four years to be served in prison, followed by two years of community control. During his community control, an affidavit of violation was filed against him alleging subsequent criminal offenses. The trial judge held a hearing, determined that Bradley had violated the terms of his community control, and entered an order of revocation, following which a sentence of fifteen years, with credit for time served, was imposed.

On appeal Bradley contends that a defendant serving a split sentence pursuant to section 958.05(2), Florida Statutes, is under the exclusive jurisdiction of the Parole and Probation Commission when he violates the terms of his release under a community control program. He recognizes that this position is contrary to our holding in Spurlock and urges that we reconsider and recede therefrom. He relies primarily upon two cases: Clem v. State, No. 81-2243 (Fla. 4th DCA Aug. 31, 1983) [8 FLW 2135], rehearing pending, and Lollis v. State, 449 So.2d 430 (Fla. 2d DCA 1984), review denied, 453 So.2d 45 (Fla.1984).

The provisions of section 958.10, Florida Statutes (1983), seemingly lend support to Bradley’s argument:

958.10 Community control program; maximum term.—
(1) A youthful offender, when placed in a community control program upon release from imprisonment by parole or by accumulation of statutory gain-time allowances, shall be supervised in the program for a period not to exceed either 2 years or the balance of the maximum term to which he was sentenced, whichever is less; and the release shall be under such conditions as may be set by written order of the Parole and Probation Commission.
(2) During the period spent in the community control program, the youthful offender shall perform the terms and conditions of his release agreement and shall be subject to revocation or modification of the release agreement as if he were on parole. The provisions of s. 945.30 shall apply to youthful offenders released on parole or by accumulation of statutory gain-time allowances, except those youthful offenders within or without the state under an interstate compact adopted pursuant to chapter 949.

It is apparent under subsection (1) above that the four-year sentence of imprisonment imposed by the trial court may be interrupted by parole release, thereby commencing the two-year community control program at an earlier date. A community control program, as described in section 958.03(2), means “an individualized program of restriction or noninstitutional confinement for youthful offenders placed in the community in lieu of commitment to the custody of the department and for youthful offenders subsequent to release from the custody of the department as provided by law.”

Under subsection (2) of section 958.10, quoted above, it is stated that the youthful offender’s release from imprisonment to the community control program is subject to revocation “as if he were on parole.” This implies exclusive jurisdiction of the Probation and Parole Commission to revoke or not revoke the release. But section 958.14, which is subsequent in location in the statutes to section 958.10, explicitly states that a youthful offender who violates the terms of his community control release shall be subject to the provisions of section 948.06(1) — which explicitly authorizes the court which granted the community control release to revoke it and then to “impose any sentence which it might have originally imposed .... ” This can only mean, in this context, that the sentence of imprisonment can be the remaining balance of the original six-year sentence imposed, after consideration of the time actually served.

In Spurlock we rejected the conclusion of Clem v. State, supra, but noted that a rehearing was pending in that case. Rehearing was granted and the Fourth District is now in accord with our opinion in Spurlock. See Clem v. State, 462 So.2d 1134 (Fla. 4th DCA 1984). A contrary view has been taken, however, by the Second District in Lollis v. State, 449 So.2d 430 (Fla. 2d DCA 1984), wherein it was held that there can be no “probation” for a youthful offender following imprisonment, and section 958.14 does not apply to youthful offenders serving in a community control program begun pursuant to section 958.10 after a period of imprisonment. Such an offender, under Lollis, is solely under the supervisory authority of the Parole and Probation Commission, and his release to community control cannot be revoked by the trial court. On their face, sections 958.14 and 948.06(1) make no distinction between those youthful offenders serving in a community control program after imprisonment and those who enter community control directly.

Given the explicit and unambiguous language of sections 958.14 and 948.06(1), we adhere to our holding in Spurlock to the effect that a youthful offender released to community control following a sentence of imprisonment is subject to the supervisory authority of the trial court, and the latter has the power to revoke his release. In so holding, we acknowledge conflict with Lol-lis.

The second issue on this appeal concerns an excessive sentence under the mandatory sentencing provision of section 958.-05(2), Florida Statutes (1983), which provides for a maximum six-year term. The state concedes this error; hence we remand for resentencing in this regard.

AFFIRMED in part; REVERSED in part; and REMANDED.

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

ON MOTION FOR REHEARING

COBB, Chief Judge.

Pursuant to appellant’s motion for rehearing, we herewith certify that our decision herein is in direct conflict with Lollis v. State, 449 So.2d 430 (Fla. 2d DCA), dismissed, 453 So.2d 45 (Fla.1984). See Fla.R. App.P. 9.030(a)(2)(A)(vi).

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

      . See § 958.05(2), Fla.Stat. (1979).

      . See sections 181 and 182 of Volume 49, Florida Jurisprudence 2d, Statutes, pages 219-22, relating to the construction of irreconcilable statutes and the prevalence of a specific statute over a general one.


text:
    John Michael FERENC, Appellant, v. STATE of Florida, Appellee.
    No. 83-1467.
    District Court of Appeal of Florida, Fifth District.
    Dec. 11, 1984.
    Rehearing Denied Jan. 10, 1985.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

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


text:
    Louis ELLIS and Vivian Ellis, Appellants, v. Paul HAM and Progressive American Insurance Company, Appellees.
    No. 84-1078.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Rehearing Denied Feb. 6, 1985.
    Sneed & Messer, P.A. and Roger N. Mes-ser, Fort Pierce, for appellants.
    Dewey H. Varner, Lake Worth, for ap-pellees.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

We reverse upon a finding that although the evidence regarding the alcohol intake and blood alcohol level of Ellis, a passenger in an automobile at the time of an accident, was marginally relevant on the issue of credibility, it was inadmissible at trial because the danger of unfair prejudice substantially outweighed the probative value of the evidence. § 90.403, Fla.Stat. (1981).

Reversed and remanded for a new trial.


text:
    Bernard KANDEL and Jacqueline E. Kandel, Appellants, v. COMEAU BUILDING, INC., et al., Appellees.
    No. 84-116.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1984.
    Rehearing and Clarification Denied Feb. 5, 1985.
    John B. Powell of Powell, Tennyson & St. John, P.A., West Palm Beach, for appellants.

      Moira K. Lasch of Baskin & Steingut, and Richard L. Martens of Boose, Ciklin & Martens, West Palm Beach, for appellees.
   PER CURIAM.

We are of the opinion that the defendants, Bernard Kandel and Jacqueline E. Kandel, even though denominated as sub-lessees, were given an option to renew the lease in question by the lessor, which renewal option was reflected by Addendum No. 2 dated November 12,1980. Moreover, it clearly appears that the Kandels validly exercised their option and are entitled to its benefits.

The judgment on appeal is

REVERSED.

LETTS, DELL and WALDEN, JJ., concur.


author: SHIVERS, Judge.

text:
    Robert BRIMMER, Appellant, v. STATE of Florida, Appellee.
    No. BA-11.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1984.
    Robert Brimmer, pro se, for appellant.
    No appearance for appellee.
   SHIVERS, Judge.

Appellant appeals the trial court’s denial of his RCrP 3.850 motion for post-conviction relief. In his motion, appellant alleged that he was intoxicated at the time he entered his pleas of guilty to grand theft and aggravated battery, that the trial court failed to honor the sentencing part of the plea bargain, and that appellant was denied effective assistance of counsel. The trial court denied appellant’s motion, attaching to its order a copy of the plea of guilty and negotiated sentence form executed by appellant and copies of the transcripts of the plea and sentencing hearings. We affirm.

First, appellant’s allegation that he was intoxicated at the time he entered his pleas is affirmatively refuted by the plea of guilty and negotiated sentence form executed by appellant at the time he entered his pleas of guilty. See generally O’Quinn v. State, 364 So.2d 775, 776 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 460 (Fla.1979). In this form, appellant acknowledged that he was not under the influence of any drug, substance or condition which would interfere with his understanding and appreciation of his pleas and the consequences thereof.

Next, we find that appellant waived any right to now complain about the trial court’s failure to honor the sentencing part of the plea bargain. Sub judice, after negotiations with the State, appellant pled guilty to grand theft and aggravated battery in exchange for an agreed maximum sentence of one year in the county jail to be followed by five years probation. Sentencing was set for a hearing to be held in three weeks. The trial judge advised appellant that if he did not show up at the sentencing hearing when scheduled, appellant’s pleas of guilty would stand, but that the maximum of one year in the county jail would be off.

Appellant failed to show up at the scheduled sentencing hearing. When appellant did finally show up at a subsequently scheduled hearing, defense counsel informed the trial court that he had advised appellant of the trial court’s position that the sentencing part of the plea negotiations was no longer in force and that appellant could receive up to the maximum penalty of twenty years. Defense counsel further informed the trial court that he had asked appellant whether he wanted him (defense counsel) to try and withdraw appellant’s pleas of guilty and that appellant had requested that he not. After presentation of testimony in aggravation and mitigation of appellant’s sentences, appellant was sentenced to five years on the grand theft charge and ten years on the aggravated battery charge, these sentences to run concurrently.

Under the circumstances detailed above, we find, as previously noted, that appellant waived any right to now assert that the trial court failed to honor the sentencing part of the plea bargain. Here, appellant had full knowledge at the sentencing hearing of the trial court’s position that it was not bound by the sentencing part of the plea bargain and that it could impose within its discretion up to the maximum penalty allowed by law. Notwithstanding, appellant chose not to try to withdraw his previously entered pleas of guilty and, instead, chose to rely on the mercy of the court. Appellant may not now be heard to complain because the trial court’s mercy, or lack thereof, did not live up to appellant’s expectations. See generally Glover v. State, 9 FLW 2271 (Fla. 1st DCA 1984) (this court stating that where the defendant has full knowledge of the breach of a plea agreement prior to the imposition of sentence such that the defendant could have readily moved for withdrawal of his/her plea before the sentence, the defendant will not be heard afterwards to complain).

Finally, we find that the tactical decision to plead guilty in this case was not “outside the wide range of professionally competent assistance.” Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984).

Accordingly, the order on appeal is AFFIRMED.

WENTWORTH and NIMMONS, JJ., concur.


author: MILLS, Judge.

text:
    Tyrone Martinez HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. BA-250.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1984.
    Rehearing Denied Jan. 30, 1985.
    Tyrone Martinez Howard, pro se.
    No appearance for appellee.
   MILLS, Judge.

Howard appeals from the summary denial of his Rule 3.850 motion for postconviction relief. We affirm.

In his motion, Howard alleges numerous grounds, including ineffective assistance of counsel based on counsel’s alleged failure to procure two vital witnesses for trial. With regard to all but the latter ground, we agree with the trial court that they could have been raised on direct appeal and so may not properly be raised in a subsequent motion for postconviction relief. See Alday v. State, 431 So.2d 714 (Fla. 1st DCA 1983).

However, the trial court was incorrect in holding that the allegation of ineffective assistance of counsel was inappropriately raised in this 3.850 motion. In fact, inadequacy of counsel cannot be raised for the first time on direct appeal since it is a matter which has not previously been ruled on by the trial court. State v. Barber, 301 So.2d 7, 9 (Fla.1974). The proper medium by which to raise the issue is by motion under Rule 3.850. See Whitaker v. State, 433 So.2d 1352, 1353 (Fla. 3d DCA 1983). Nevertheless, the question remains of whether Howard stated sufficient factual information regarding the alleged ineffective assistance so as to render the motion facially sufficient. If allegations of ineffective assistance of counsel are not adequately detailed, further inquiry by the trial court is not required. See Watkins v. State, 413 So.2d 1275, 1276 (Fla. 1st DCA 1982). We find that Howard’s motion fails on this point.

A movant alleging ineffective assistance of counsel must fulfill these requirements: 1) the specific omission or overt act upon which the claim is based must be detailed in the appropriate pleading; 2) the defendant must show that this specific omission or overt act was a substantive and serious deficiency measurably below that of competent counsel; and 3) the defendant must show that this specific, serious deficiency, when considered under the circumstances of the individual case was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. Knight v. State, 394 So.2d 997, 1001 (Fla.1981). Failure to meet these standards will support the summary denial of a Rule 3.850 motion alleging ineffective assistance of counsel. See Moore v. State, 431 So.2d 713 (Fla. 1st DCA 1983).

Howard has failed to meet the first standard upon which all the others rely; namely, he did not provide the details of the specific omission upon which the claim is based. The motion alleges that “[p]eti-tioner was denied the right to effective assistance of court-appointed counsel by virtue of the fact , that counsel was unprepared for trial, through the lack of investigation.” Howard provides some elaboration on this statement in an attached memorandum of law when he states that “his attorney was not prepared for trial do [sic] to the lack of investigation and preparation for trial, petitioner made defense counsel' awear [sic] of the fact that he had two very important witnesses to testify in his behalf namely (Ruth and Raymond Jones).” However, he does not describe the circumstances under which counsel was made aware of the witnesses, what they would have testified to, or any factual'details surrounding them. We must therefore find that Howard did not provide sufficient details of the omission on which his claim is based, falling short of the Knight standards. A summary denial of his motion was proper.

We note that the motion was not denied on the basis outlined above however, but on the incorrect ground of failure to raise ineffective assistance of counsel on appeal. We nevertheless affirm, based on the principle that “[e]ven though the trial judge may have denied relief upon the wrong principle, it appears that his decision was correct ... and therefore under the doctrine that even if the wrong reasons were given, the right result is obtained, the order ... should be affirmed.” Whitney v. State, 184 So.2d 207, 209 (Fla. 3d DCA 1966).

SHIVERS and WENTWORTH, JJ., concur.


text:
    Peter MELO and Lilia G. Cuadrado, Appellants, v. A1A WATERPROOFING AND INSULATION, INC., a Florida corporation, Appellee.
    No. 84-1637.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Rehearing Denied Feb. 6, 1985.

      Britton, Cohen, Cassel, Kaufman & Schantz and Mark D. Cohen, North Miami, for appellants.
    Michael J. Fingar, Miami, for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See John Crescent, Inc. v. Schwartz, 382 So.2d 383 (Fla. 4th DCA), rev. denied, 389 So.2d 1113 (Fla.1980).


author: ERVIN, Chief Judge.

text:
    Kenneth M. PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. AV-289.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1984.
    Rehearing Denied Jan. 28, 1985.
    Michael E. Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Cos-tas, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   ERVIN, Chief Judge.

Patterson appeals two sentences which he claims were violative of the sentencing guidelines law. We agree with the first contention raised, asserting that because the record is silent as to whether appellant knowingly and intelligently waived his protection against the imposition of ex post facto laws by selecting guideline sentencing, the sentences must be vacated.

Patterson was charged with the offenses of burglary of a dwelling while arming himself with a dangerous weapon, sexual battery with the use of a deadly weapon upon a person over the age of eleven years, and aggravated battery. He was found guilty by a jury of all three offenses as charged on September 30, 1983. Five days thereafter, he was given 75 years on the sexual battery count (a non-guideline sentence in that the offense was a life-felony, see Section 921.001(4)(a), Florida Statutes), 20 years on the burglary count, and three- and-one-half years on the aggravated battery count. As to the latter two sentences, imposed under the guidelines, the court departed from the recommended range. Defense counsel challenged the constitutionality of the guidelines and objected throughout sentencing. Although all the offenses occurred before October 1, 1983, and Section 921.001(4)(a), Florida Statutes, requires that a defendant must affirmatively select guideline sentencing as to all non-capital and life felonies which are committed prior to October 1, 1983, the court nonetheless found it could impose such sentences as to the two offenses in question, because the defendant did not elect otherwise.

The lower court’s holding was clearly erroneous. The statute places the burden on the defendant to affirmatively select guideline sentencing — not the contrary. See Randolph v. State, 458 So.2d 64 (Fla. 1st DCA 1984) (in the absence of a defendant’s affirmative selection of guideline sentencing, she must be sentenced in accordance with the procedure in effect prior to the adoption of sentencing guidelines). Contrast Jones v. State, 459 So.2d 1151 (Fla. 1st DCA 1984) (defendant clearly selected guideline sentencing, notwithstanding the failure of the record to disclose that in making such selection, defendant was aware she was waiving her right to consideration for parole).

The two sentences imposed pursuant to the guidelines are reversed and vacated, and the cause is remanded to the trial court for resentencing as to them.

WENTWORTH, J., concurs.

BOOTH, J., dissents.


author: WIGGINTON, Judge.

text:
    Bob GRAHAM, Governor of the State of Florida, Appellant, v. Randolph P. MURRELL, An Assistant Public Defender, Appellee.
    No. AW-375.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1984.

      Jim Smith, Atty. Gen., and James A. Peters, Asst. Atty. Gen., Tallahassee, for appellant.
    Randolph P. Murrell, Asst. Public Defender, Tallahassee, for appellee.
    Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, Miami, for amicus curiae Fla. Public Defender Ass’n.
   WIGGINTON, Judge.

Appellee, an assistant public defender, filed an amended complaint for declaratory judgment, seeking a declaration from the court that chapter 83-256, section 1, Laws of Florida (1983), amending section 27.-56(l)(a), Florida Statutes, is unconstitutional. Chapter 83-256, section 1, amended section 27.56(l)(a) to include the following language:

At the sentencing hearing or at such stage in the proceedings as the court may deem appropriate, the public defender, the special assistant public defender, or the private attorney representing such defendant shall move the court to assess attorney’s fees and costs against the defendant.

Upon motion filed by appellee, the trial court entered final summary judgment, declaring chapter 83-256, section 1, to be unconstitutional as violating the separation of powers doctrine embodied in article II, section 3, of the Florida Constitution. We affirm.

The challenged legislation invades the province of the judiciary, and thereby violates the separation of powers doctrine, for two reasons. First, it creates a rule of practice and procedure; the legislature has no constitutional authority to enact any law relating to practice and procedure. In re Clarification of Florida Rules of Practice and Procedure (Florida Constitution, Article V, Section 2(a)), 281 So.2d 204 (Fla.1973). By enacting such a law, the legislature directly intrudes upon the Florida Supreme Court’s constitutional power to adopt rules for the practice and procedure in all courts, as defined by article V, section 2(a). Johnson v. State, 308 So.2d 127 (Fla. 1st DCA 1975).

The question of whether a rule relates to substantive law or to practice and procedure was discussed at great length by Justice Adkins in his concurring opinion in In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1972), in which he stated:

Practice and procedure encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion.

Id., at 66. Applying the above definition to the instant case, it is clear that chapter 83-256, section 1, sets forth the mechanics to appellee’s realizing his substantive right to fees created by section 27.56. Consequently, it is a law clearly relating to practice and procedure and thus void, unless the Florida Supreme Court has formulated a rule conforming with the perceived intent of the legislature framed by the enactment, thereby adopting the statute as its own. See In re Clarification; State v. Smith, 260 So.2d 489 (Fla.1972); and Johnson v. State; cf., Carter v. Sparkman, 335 So.2d 802, 806 (Fla.1976); and Wooten v. State, 332 So.2d 15, 18 (Fla.1976).

By Florida Rule of Criminal Procedure 3.720(d)(1), the supreme court adopted the 1979 version of section 27.56 and in particular subsection (7), which grants discretion to the trial court to deem at what stage of the proceedings it would be appropriate to determine the value of the public defender’s services. Subsection (7) has remained unchanged, despite the legislature’s 1983 amendment of subsection (1), yet the present rules of criminal procedure make no provision for that amendment. Consequently, as the court has made no effort to adopt the amendment as its own, the enactment is void.

Second, the legislative effort invades the province of the judiciary by impermissibly attempting to regulate the conduct of attorneys. The legislature is without any authority to directly or indirectly interfere with or impair an attorney’s exercise of his ethical duties as an attorney and officer of the court. An attorney cannot be put “in the untenable position of choice between a violation of a statute or a violation of a specific Canon [of Ethics] insofar as they clearly conflict.” Times Publishing Company v. Williams, 222 So.2d 470, 475 (Fla. 2d DCA 1969) (emphasis in original).

Appellee’s professional conduct is governed by the Code of Professional Responsibility which was promulgated by the supreme court. In re The Florida Bar, 316 So.2d 45 (Fla.1975). Canon 7 of the Code requires appellee to represent his client zealously and within the bounds of the law. Yet, despite his ethical obligations, the legislature would have appellee request the court to assess costs and attorney’s fees against his client. By so doing, the legislature has forced appellee onto the horns of an ethical dilemma. This it may not constitutionally do.

For the above-stated reasons, we affirm the trial court’s finding that chapter 83-256, section 1, is unconstitutional.

AFFIRMED.

JOANOS and NIMMONS, JJ., concur.


author: NIMMONS, Judge.

text:
    Purvis Lee WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. AY-244.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1984.
    Rehearing Denied Jan. 21, 1985.

      Michael Allen, Public Defender, and Andrew Thomas, Asst. Public Defender, for appellant.
    Jim Smith, Atty.' Gen., and Gregory C. Smith, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Williams was convicted of lewd, lascivious or indecent assault upon a child less than 14 years of age under Section 800.04, Florida Statutes (1983).

He claims that he was entitled to a mistrial when, on cross-examination by defense counsel, a state witness mentioned that the defendant had been in prison at some time during the preceding four years. We find no error inasmuch as the witness’ testimony was responsive to a defense question. See Lawson v. State, 360 So.2d 786 (Fla. 2nd DCA 1978).

The defendant also complains about the trial judge’s imposition of a sentence outside the sentence range called for by the guideline’s scoring apparatus. The reasons given for departing from the guidelines, were that: (1) the offense was committed by a stepfather on his stepdaughter; and (2) the defendant threatened the victim’s natural father who was a witness for the state.

With respect to the first reason, we have no difficulty in sustaining it as clear and convincing. A lewd and lascivious assault upon a ten-year-old child is bad enough. But for a child to be subjected to such by one in familial authority to whom the child should be able to rely upon for protection and sanctuary from such vile conduct constitutes, by any standard, a substantial aggravating circumstance.

We turn now to the second reason for guidelines departure. According to the testimony of the victim’s natural father, after the victim advised him of what the defendant had done to her, the father reported it to the authorities. A few days later, in a telephone conversation between the defendant and the victim’s father concerning the offense, the defendant suggested that the father meet the defendant on Fifth Avenue and he would “blow away” the father, and that the defendant would come to the father’s place of employment if the father did not meet him on the street. The father advised the police authorities and the security personnel at his place of employment of the defendant’s threat. Apparently, no effort was made to carry out the threat. Although the defendant took the stand and testified, he was not asked about the above referred telephone conversation. However, he did state that he had never threatened the victim’s natural father.

We are of the view that the defendant’s threats made to the victim’s father, as reflected by evidence duly received at trial, is a legitimate aggravating circumstance which may be taken into account in determining the defendant’s sentence. Certainly, prior to the advent of sentencing guidelines, there would have been no question about such being a legitimate sentencing consideration. We do not believe that the guidelines preclude such factor being regarded as a reason for guidelines departure.

We reject the notion that both of the reasons given are precluded by Rule 3.701(d)(ll) which, at the time of the defendant’s sentencing in March, 1984, provided:

Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.

Under a strict interpretation of this rule, one can certainly make a plausible argument that nothing that occurred during the criminal episode, including relevant and material events occurring subsequent to the actual offense, could be considered by the trial judge in departing from the guidelines unless conviction of a specific offense resulted. We recently rejected such a construction in Garcia v. State, 454 So.2d 714, 716 (Fla. 1st DCA 1984). We do so again.

AFFIRMED.

JOANOS and WIGGINTON, JJ., concur.

      . For purposes of the instant issue, we speak of "familial” authority in a broad enough context to include a stepfather-stepdaughter relationship, particularly where, as here, the child resides with the stepfather.

      . This rule was amended in The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.899—Sentencing Guidelines), 451 So.2d 824 (Fla.1984). The effective date of the amendment was July 1, 1984. See Chapter 84-328, Laws of Florida. But our resolution of the instant case would be the same under the amended rule.


author: ZEHMER, Judge.

text:
    Edith WILLIAMS and Tommy Williams, her husband, Appellants, v. The NEW YORK TIMES, INC., d/b/a Lake City Reporter, and Kathi Fichera, Appellees.
    No. AY-464.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1984.

      Penelope Saxon Ingber, Stephen A. Rap-penecker, P.A., Gainesville, for appellants.
    Dan Paul and Steven M. Kamp, Paul & Burt, Miami, for appellees.
    Richard J. Ovelmen, Gen. Counsel, Miami, The Miami Herald Pub. Co., and Parker D. Thomson, Sanford L. Bohrer, and Laura Besvinick, Thomson, Zeder, Bohrer, Werth, Adorno & Razook, Miami, for ami-cus curiae.
   ZEHMER, Judge.

Kathi Fiehera, a reporter for the local newspaper in Columbia County, the Lake City Reporter, wrote a news article about the trial and conviction of Edward R. Shade for committing the offense of sexual battery against appellant Edith Williams. Mrs. Williams and her husband (plaintiffs below) have appealed the summary judgment entered against them in their civil action for damages allegedly caused by ap-pellees’ identification of Mrs. Williams in the news article. We affirm.

The frightening and sordid episode giving rise to this action occurred in 1979, when Mrs. Williams, a white woman living without any semblance of public notoriety with her husband and daughter in the family home in White Springs) was thrust involuntarily into the public arena of newsworthy events as a result of being assaulted and raped by Shade, a black man, in her home in full view of her five-year-old daughter. Her assailant was prosecuted, and although she was not able to directly identify him, she was a principal witness at the trial, which was fully open to the public. No effort was made by the court, the prosecutor, or Mrs. Williams to keep her name, as victim of the crime, confidential. A number of black persons who knew the defendant attended the trial and made comments characterizing the proceeding as purely racial. When the accused was found guilty, the atmosphere in and around the courthouse became openly hostile toward Mrs. Williams, with many of the blacks shouting that the defendant was convicted only because he was black and Mrs. Williams was white. Appellee Fich-era was present throughout the trial. After Shade’s conviction, she wrote in her news article, among other things, that “the trial became a racial issue when White •Springs blacks charged that the jury’s verdict was reached only because Edward R. Shade is black and the victim, Edith Williams, is white.” The article likewise disclosed the names of Mrs. Williams’ husband and young daughter, and quoted Mrs. Williams’ favorable comments on the outcome of the trial.

Subsequent to publication of the article, members of the black community conducted demonstrations, described as “hostile,” in the street immediately adjacent to Mrs. Williams’ home and, according to the plaintiffs, she and her family were threatened and harassed to such an extent they were ultimately forced to move away from White Springs. The plaintiffs’ suit against the appellees alleged several theories of action: (1) violation of section 794.03, Florida Statutes, (2) negligence, (3) invasion of privacy, loss of consortium, and (4) the admittedly new theory that appellees became liable for damages because they published the plaintiffs’ name “in reckless disregard for the physical safety of a rape victim.” On this appeal, plaintiffs seek reversal of the summary judgment primarily on the ground that the law and material disputes in the evidence support their right to a jury trial on this latter theory.

Plaintiffs do not contend that the newspaper article was false or defamatory, nor do they contend on appeal that publication of Mrs. Williams’ name in the newspaper violated her right to privacy. They recognize that the decisions in Doe v. Sarasota-Bradenton Florida Television Co., 436 So.2d 328 (Fla. 2d DCA 1983), and Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), establish appellees’ legal right to publish the name of a-rape victim whose identity has been disclosed in public documents or at a public trial. Rather, plaintiffs contend that appellees should be liable for damages for publishing the news article in reckless disregard for the physical safety of the plaintiffs because the reporter and newspaper should have known that publication of Mrs. Williams' identity in an article discussing not just the outcome of the criminal trial but circumstances characterized as racial strife would likely cause harm to Mrs. Williams and her family. Appellants did not contend at oral argument that appellees had actual knowledge or intent that their publication would cause the alleged harm to plaintiffs; nor did they allege that the article incited others to riot or commit other unlawful acts against plaintiffs. It was not even contended that the persons demonstrating near plaintiffs’ home were committing unlawful acts.

Although plaintiffs’ novel theory appears to sound in negligence, plaintiffs insist it is more in the nature of conduct sufficiently reckless to constitute an intentional violation of their rights guaranteed by the Florida Constitution. Plaintiffs cite no case law upholding this legal cause of action, but rely on the alleged constitutional right of all natural persons to enjoy life and liberty and to pursue happiness free from unwarranted physical danger, article I, section 2, Florida Constitution, and the constitutional right of access to court for the redress of injury, article I, section 21, Florida Constitution. These constitutional rights, plaintiffs say, must be balanced against appel-lees’ First Amendment right to freedom of the press, and the circumstances shown in this case tip that balance in favor of plaintiffs’ right to recover.

After careful consideration of the briefs and oral argument, we find no error in the trial judge’s order granting summary judgment. We conclude that any cause of action for damages against appellees under the circumstances alleged is barred by the decisions in Doe v. Sarasota-Bradenton Florida Television Co., supra, and Cox Broadcasting Corp. v. Cohn, supra. Mrs. Williams’ name was a matter of public record, and appellees had no duty to withhold publication of her name. While we are quite sympathetic to plaintiffs’ plight and their desire to obtain some means of indemnity for the damages they have suffered, nevertheless we must decline to fashion a wholly new cause of action holding a newspaper and its reporter liable in damages for publishing the rape victim’s name under the circumstances shown in this case.

This is not to say that the media are always immune from liability for the consequences of publishing a rape victim’s name. Our holding is strictly limited to the facts of this case. To some extent, a balancing of the news media’s First Amendment right to freedom of the press against the state’s interest in facilitating the prosecution of sexual battery cases, as well as the need for protecting victims and witnesses involved in criminal cases, must be made in all cases; but whether publication of the names of crime victims may lawfully be prohibited apart from the media’s exercise of self-restraint is a matter for decision on a case-by-case basis, preferably at the time of and by the court having jurisdiction over the criminal prosecution. Cox Broadcasting Co. v. Cohn, supra; Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Doe v. Sarasota-Bradenton Florida Television Co., supra.

While appellees clearly acted within their legal rights, we also caution, as did Judge Campbell in the well-written opinion in Doe v. Sarasota-Bradenton Florida Television Co., supra, that, whenever the media have the clear right to publish the identity of rape victims already disclosed by public documents or in public trials, the media should be constantly alert to the potential harm that may result from such publication, particularly where, as here, naming the victims involved is unnecessary to the essential elements of the story being presented. The fact that the media may have a constitutional right to publish names does not mean they should exercise the right in every case. As stated in Doe, “[I]t would behoove the media to engage in their own balancing test with an eye to avoiding harm such as may have occurred here.” 436 So.2d at 332.

AFFIRMED.

SMITH and BARFIELD, JJ., concur.

      . The conviction of Shade was affirmed on appeal. Shade v. State, 400 So.2d 850 (Fla. 1st DCA 1981).


author: JOANOS, Judge.

text:
    Peter STERN, individually and as a stockholder of Eagle Marine, Inc. of Savannah, Appellant, v. Norman DEJONG, individually and as President and Director of Eagle Marine, Inc. of Jacksonville and Eagle Marine Inc. of Miami, and Eagle Marine, Inc. of Savannah; Eagle Marine, Inc. of Jacksonville; Eagle Marine, Inc. of Miami; Eagle Marine, Inc. of Savannah, Appellees.
    No. AZ-81.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1984.
    Rehearing Denied Jan. 23, 1985.
    G.J. Rod Sullivan, Jr., Donovan, Maloof, Culp & Kennedy, Jacksonville, for appellant.
    Harry B. Mahon, Mahon & Farley, Jacksonville, for appellees.
   JOANOS, Judge.

Stern appeals from a final judgment granting appellee’s motion for directed verdict and dismissing, with prejudice, his action to have full faith and credit given to a Georgia judgment. We reverse.

The trial court's dismissal was based upon the unavailability of one of the parties, Eagle Marine, Inc. of Miami. Eagle Marine, Inc. of Miami had been involuntarily dissolved by Florida’s Secretary of State more than three years prior to Stern’s filing his complaint in Florida.

Florida courts are bound to recognize and give full faith and credit to a properly authenticated judgment or decree rendered by a sister state. U.S. Const, art. IV, § 1. The judgment or decree from the other state forms the basis for the cause of action, and the validity of the claim upon which the foreign judgment was entered is not open to inquiry. Trauger v. A.J. Spagnol Lumber Company, Inc., 442 So.2d 182 (Fla.1983).

We are unpersuaded by Stern’s argument that the Georgia judgment is against appellees jointly and severally, thereby readily allowing a cause of action against less than all of the obligors. Judgments are to be interpreted so as to effectuate their intended purpose and construed in light of the entire record. “[T]he legal effect, rather than the mere language used, governs the construction of a judgment.” Boynton v. Canal Authority, 311 So.2d 412 (Fla. 1st DCA 1975). In the absence of the Georgia trial record, we have considered the language of the trial court’s judgment and the consideration and interpretation of the Georgia appellate court in affirming the judgment to conclude that the Georgia judgment imposed joint liability upon appellees.

At common law, if one of the joint obli-gors died before the joint obligation was discharged, the surviving obligors alone could be sued. Corlett v. Oliver, 107 Fla. 403, 144 So. 877 (1932); Phillippi Creek Homes, Inc. v. Arnold, 174 So.2d 552 (Fla. 2nd DCA 1965). We see no reason to make a distinction between a deceased joint obli-gor and a “dead” corporation. Stern’s common law right to collect from the surviving joint obligors would not be extinguished, as appellees argue, by his inability to maintain an action against a “dead” obligor. We, therefore, reverse for this reason.

The trial court’s final judgment of dismissal is reversed and this cause is remanded with the previously issued order of partial summary judgment reinstated.

WIGGINTON and NIMMONS, JJ., concur.

      . Section 607.297, Fla.Stat. provides:
      607.297 Survival of remedy after dissolution. — The dissolution of a corporation either:
      (1) By the issuance of a certificate of dissolution by the Department of State;
      (2) By a decree of court; or
      (3) By expiration of its period of duration shall not take away or impair any remedy available to or against such corporation or its directors, officers, ■ or shareholders for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within 3 years after the date of such dissolution. Any such action or proceeding by or against the corporation may be prosecuted or defended by the corporation in its corporate name. The shareholders, directors, and officers shall have power to take such corporate or other action as shall be appropriate to protect such remedy, right, or claim. If such corporation was dissolved by the expiration of its period of duration, such corporation may amend its articles of incorporation at any time during such period of 3 years so as to extend its period of duration.

      .The Georgia trial court’s final judgment provided:
      That Plaintiff [Stern] recover against the Defendants, NORMAN DEJONG, individually and as President and Director of Eagle Marine, Inc. of Jacksonville, Eagle Marine, Inc. of Miami, Eagle Marine, Inc. of Savannah, and Eagle Marine, Inc. of Savannah, Eagle Marine, Inc. of Jacksonville, and Eagle Marine, Inc, of Miami, in the sum of 138,011.16, plus interest and costs of this action.

      . The Georgia appellate court stated:
      [T]he evidence showed that DeJong was the sole or majority stockholder of all the Eagle Marine corporations. Moreover, the record is replete with evidence showing that DeJong operated these corporations interchangeably as if they were one. Therefore, the evidence did not demand a verdict in favor of any one, individual corporate appellant.

      . In Bahl v. Fernandina Contractors, Inc., 423 So.2d 964 (Fla. 1st DCA 1982), we concluded that the common law precluded legal action against a corporation which had been dissolved more than three years before the cause of action arose.


text:
    Eugene AMBRISTER, Appellant, v. STATE of Florida, Appellee.
    No. AV-158.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1984.
    Rehearing Denied Feb. 1, 1985.
    Michael E. Allen, Public Defender; P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

Appellant was convicted on a charge of carrying a concealed firearm, and raises two points on appeal. Appellant alleges the trial court erred first, in denying his motion for judgment of acquittal, and second, in refusing to instruct the jury on his defense of necessity. We affirm on the first point and reverse on the second.

The charge against appellant stemmed from information given to Officer Schultz of the Tallahassee Police Department by a confidential informant, regarding appellant’s alleged involvement in drug sales. The confidential informant was directed by the police to go to appellant’s residence and purchase cocaine. The officers watched appellant’s residence as the informant went inside. Shortly thereafter, appellant and the informant left the residence. The informant reported to the. officers that he had observed small packets of white powder in appellant’s possession and that appellant had said he did not have time to go through with a narcotics transaction. Following this exchange with the informant, the officers followed appellant ás he drove to an apartment complex. Appellant parked his car and sat in it for approximately ten minutes. The officers watched as appellant went to a door on the second floor of the complex, knocked, and engaged in a short conversation with the person who opened the door. Appellant then ran down the stairs to his car and sped out of the parking lot. The officers followed. At trial, the officers described appellant’s driving as evasive. Finally, appellant stopped his car at his grandfather’s residence.

During his trial, appellant testified that the informant went to his house with a message purportedly from a party referred to as Buckethead. According to this message, Buckethead wanted appellant to look at some gold he [Buckethead] was trying to buy. The informant was supposed to meet appellant at Buckethead’s apartment complex, so appellant sat in his car and waited. Finally, appellant went to the apartment, where Buckethead’s wife told him Bucket-head was not at home and no one else had been there. At that point, appellant decided the whole affair was an attempt to rob him. He ran to his car and drove away. When he realized he was being followed, he drove past his own house and stopped at his grandfather’s place.

Officers Schultz and Slovenky, in plainclothes and an unmarked car, pulled up behind appellant’s car. Appellant got out of his car — taking his pistol which had been on the front seat — with him. When appellant got out of his car, the pistol was in his hand. When he recognized Officer Schultz, he put the pistol in his pocket because “you just don’t carry a gun in front of the police.”

Appellant’s testimony, corroborated by Officers Schultz and Slovenky, was that Officer Slovenky had drawn his gun. Appellant did not know Officer Slovenky, so it was not until he recognized Officer Schultz that he realized he was dealing with the police. When appellant saw Officer Schultz he called him by name and immediately told the officer that he [appellant] had a gun in his pocket. Appellant explained to the officers that he thought he “was being ripped off,” and asked them to have somebody check his house. The officers searched appellant’s vehicle, his brown money pouch, and the Georgia Street area (appellant's residence) — but no cocaine was found.

Appellant was tried on the charge of having a concealed firearm. At the close of the state’s case appellant’s counsel moved for judgment of acquittal, contending that the state had not presented a prima facie case against appellant. Defense counsel argued also that appellant had acted reasonably under the concept of necessity when the firearm was found on his person. The motion for judgment of acquittal was denied.

The trial court denied defense counsel’s request for jury instruction dealing with the common law defense of necessity. The jury found appellant guilty of carrying a concealed firearm.

A defendant who moves for judgment of acquittal “admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974). The test for submitting a case to the jury is whether “there is room for a difference of opinion between reasonable men as to the proof of facts from which an ultimate fact is sought to be established, or whether there is room for such differences as to the inferences which might be drawn from conceded facts.” Id.

At the close of the state’s case, the jury had heard testimony from Officers Schultz and Slovenky that prior to appellant’s arrest, he recognized Officer Schultz and called him by his first name. Appellant then told the officers that he had a gun in his pocket. The officers conducted a pat down, discovered the gun in appellant’s jacket pocket, and effected the arrest. Both officers testified that appellant said he thought “he was being ripped off” until he recognized Officer Schultz.

Appellant’s motion for judgment of acquittal was premised on the view that the state failed to present a prima facie case of guilt, since appellant had acted reasonably under the circumstances when he placed the gun in his jacket pocket and informed the officers of its presence. The evidence adduced by the state established that appellant had a gun in his pocket at the time of his arrest. In addition, the officers testified that appellant was carrying $550.00 in a brown money pouch. Thus, the state proved possession of a concealed firearm, but there was also evidence from which there could arise a genuine difference of opinion as to the reasonableness of appellant’s conduct in placing the gun in his pocket. On these facts the trial court did not err in denying appellant’s motion for judgment of acquittal. The state’s evidence was sufficient to support the charge of possession of a concealed firearm, but the question of the reasonableness of appellant’s conduct when he realized that his confrontation was with the police was properly left to the jury.

The second point raised on this appeal is that the trial court erred in refusing to give the requested jury instruction on appellant’s theory of defense. This claim has merit. A defendant is entitled to have the jury instructed on the rules of law applicable to his theory of defense when there is any evidence introduced at trial which supports that theory of defense. Smith v. State, 424 So.2d 726, 732 (Fla.1982); Bryant v. State, 412 So.2d 347 (Fla.1982). See also: Pope v. State, 458 So.2d 327 (Fla. 1st DCA 1984), Solomon v. State, 436 So.2d 1041 (Fla. 1st DCA 1983); Holley v. State, 423 So.2d 562 (Fla. 1st DCA 1982); Muro v. State, 445 So.2d 374, (Fla. 3rd DCA 1984).

In this ease there is record evidence which supports appellant’s theory of defense. Both arresting officers testified that appellant was carrying $550.00 in cash, both officers testified that appellant fled the apartment complex as though he were being chased, and both officers testified that appellant told them he thought he had been set up for a robbery. Appellant explained that when he realized his confrontation was with armed police officers, he felt it was incumbent upon him to get the gun he was carrying out of sight to avoid the risk of being shot. On this issue, appellant analogized his situation to that of appellant in Mungin v. State, 458 So.2d 293 (Fla. 1st DCA 1984), where this court found the defense of necessity was available because Mungin did not have time to reflect on the consequences of possession of a weapon by an inmate. Appellant maintains that he, like Mungin, did not have time to reflect on the consequences of concealing the firearm. In addition, as the officers walked toward him appellant told them that there was a gun in his pocket.

There was sufficient evidence in this record to support appellant’s theory of defense. Therefore, it was error to deny appellant s requested jury instruction on necessity.

We reverse appellant’s conviction and remand with directions that appellant shall be granted a new trial with benefit of the requested instruction.

WIGGINTON and BARFIELD, JJ., concur.

      . Appellant was manager of a disco/lounge/poolroom. He carried a pistol with him when closing, because at night he took money from the business to his home, in order to deposit it the next morning.


text:
    Herbert McKINNEY and Clifford McKinney, Appellants, v. STATE of Florida, Appellee.
    No. AU-356.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1984.
    Rehearing Denied Jan. 30, 1985.

      Michael E. Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., Thomas Bateman III, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Herbert and Clifford McKinney, who are brothers, appeal their conviction, after a joint trial, of armed robbery, kidnapping and aggravated assault. We affirm.

Appellants were convicted following the robbery of Tom’s Quick Mart in Wakulla County, Florida. Two black men entered the store, both with guns; one held the gun on the store’s customers while the other obtained the money from the clerk. The men left. Clifford and Herbert were later identified by the customers and clerk, from a line-up and at trial, as the perpetrators of the crime.

The brothers do not challenge the validity and accuracy of these eyewitness identifications. Rather, they argue that the trial court erred in admitting a “similar fact” incident, otherwise known as Williams’ Rule evidence, pursuant to Section 90.-404(2), Florida Statutes (1983). The subject incident occurred earlier on the evening of the robbery with which appellants were charged. A black male, later positively identified as Herbert, entered Roberts’ Food Store, located approximately six miles from the site of the robbery. He made a small purchase, then “hung around” the store, where its owner was carrying the day’s cash receipts in his pocket. Herbert was accompanied by a second black male, never identified, who remained in a white car outside, and was seen holding a shotgun. The owner left the store with his wife and drove home. Herbert and his companion followed them and parked outside their house. After approaching the house and telling the owner they had “run out of gas,” the two black men left. The subject robbery occurred soon after their departure.

Clifford and Herbert allege that the trial court erred in permitting the presentation of this Williams’ Rule evidence, because the incident described was not sufficiently similar to the crime with which they were charged. Clifford further alleges that the admission of this evidence was erroneous as to him because the State’s evidence did not adequately connect him to the incident. He also asserts error in the trial court’s refusal to sever his trial from Herbert’s, based on the prejudice caused by the admission of the incident, in which his involvement was not shown.

First of all, we hold that it was error to admit this incident as Williams’ Rule evidence. This holding is based on the lack of any relevance to the crime charged. We do not agree with Clifford’s argument that he was not adequately connected to the incident by the State’s evidence, as required by Norris v. State, 158 So.2d 803, 804 (Fla. 1st DCA 1964). The white car which waited for Herbert outside of Roberts’ store was identified by expert testimony as Clifford’s. The man in the car had a shotgun similar to that Clifford was seen to possess at the robbery. We find this sufficient to connect Clifford to the incident so as to render it admissible against him, assuming its relevance to the crime charged. However, the incident does not appear to us to have any bearing on the subsequent robbery. It involved no robbery, attempted or threatened, nor any circumstances similar to the Tom’s robbery. We cannot agree, therefore, that the incident demonstrates “identity, opportunity, intent, preparation [or] plan” in relation to the robbery charged, and it was error to admit it for that purpose.

We nevertheless affirm on this point, because we find the error harmless. Clifford and Herbert were identified as the perpetrators of the robbery, both from a line-up and at trial, by eyewitnesses thereto. “[W]here the proof of guilt is clear and convincing so that even without the collateral evidence introduced in violation of the Williams rule, then the violation of the rule may be considered harmless.” Clark v. State, 378 So.2d 1315, 1316 (Fla. 3d DCA 1980); accord Holland v. State, 432 So.2d 60 (Fla. 1st DCA 1983). We find this to be the case here and affirm.

We also find no error in the trial court’s refusal to sever Clifford’s trial from Herbert’s, based on his assertion of prejudice resulting from the admission of the Williams Rule evidence. We have already demonstrated that Clifford’s connection with the incident was adequately shown by the State and that the admission thereof, though erroneous, was harmless error. “[Mjotions for severance are addressed to the sound discretion of the trial judge. Therefore it is incumbent upon a defendant who appeals a denial of his motion for severance to show at least a likelihood that he did not get a fair trial because of the denial.” Tifford v. State, 334 So.2d 91, 94 (Fla. 3d DCA 1976). Because Clifford has not met this burden, we affirm on this point as well.

AFFIRMED.

SHIVERS and WENTWORTH, JJ., concur.


text:
    Jerry Mitchell LAWRENCE, Appellant, v. STATE of Florida, Appellee.
    No. BA-109.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1984.
    Courtney Johnson and William J. Sheppard, Jacksonville, for appellant.
    No appearance for appellee.
   MILLS, Judge.

Lawrence appeals from an order summarily denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm.

By alleging his guilty plea was induced by his attorney’s promise that the sentence imposed would be concurrent rather than consecutive when in fact the sentence was consecutive, Lawrence makes a legally sufficient postconviction challenge to the vol-untariness of his plea. Holman v. State, 326 So.2d 50 (Fla. 2d DCA 1976). But after reviewing the portions of the plea and sentencing transcript attached to the order, we find the record conclusively shows Lawrence is entitled to no relief.

Pursuant to a plea bargain, Lawrence withdrew his plea of not guilty to burglary of a structure and pleaded guilty. Lawrence’s attorney announced at the sentencing hearing that the plea was with the understanding that the maximum sentence imposed would be five years and that the plea would effect a complete disposition of all pending charges. The State concurred. The trial court sentenced Lawrence to five years imprisonment, the sentence to run consecutive to any other sentence being served.

Lawrence cites three cases for the proposition that a defendant’s statements on the record showing he understood the consequences of his plea and voluntarily pleaded guilty do not conclusively show he is entitled to no relief. Costello v. State, 260 So.2d 198 (Fla.1972); Brown v. State, 245 So.2d 41 (Fla.1971); Young v. State, 453 So.2d 1388 (Fla. 1st DCA 1984).

In Costello, the defendant denied on the record that he had been promised a life sentence in exchange for a guilty plea to first degree murder. Nevertheless, the defendant’s assertion by way of postconviction motion, together with his trial counsel’s affidavit that he had indicated to Costello that he would not receive the death penalty, required Costello be allowed to withdraw his guilty plea. In Costello, however, an evidentiary hearing had already been conducted at the trial level. The issue presented in the case before us is therefore different from the issue in Costello.

Brown and Young are distinguishable because in both those cases misunderstanding and mutual mistake could be inferred from the record. No such inference is possible here.

Lawrence’s other contentions are without merit.

AFFIRMED.

SHIVERS and WENTWORTH, JJ., concur.


author: WENTWORTH, Judge.

text:
    Herman JOHNSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AW-172.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1984.
    Rehearing Denied Jan. 14, 1985.
    See also Fla.App., 462 So.2d 860.

      Michael E. Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Thomas H. Bate-man, III, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a sentence imposed, after a guilty plea, for the offense of robbery with a firearm. Although appellant has raised several issues on appeal, we find the only point of reversible error to be the court’s failure to provide a written statement of reasons for departing from the presumptive guideline sentence established pursuant to Fla.R.Crim.P. 3.701. For this limited reason we therefore vacate the sentence imposed.

Appellant pled guilty to a charge of robbery with a firearm for a 1982 offense and expressly elected to be sentenced pursuant to the provisions of Fla.R.Crim.P. 3.701. The application of Rule 3.701 in these circumstances requires only that appellant “affirmatively selects” to be sentenced pursuant to the rule, see § 921.001(4)(a), Florida Statutes, and such affirmative selection does not require any advisement by the court as to parole ineligibility. See Jones v. State, 459 So.2d 1151 (Fla. 1st DCA 1984); Coates v. State, 458 So.2d 1219 (Fla. 1st DCA 1984); Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984).

In imposing a sentence outside the presumptive guideline range the court noted appellant’s “utter disregard for the property rights [and] welfare and safety” of others. The court further explained that:

... [T]his robbery was out of the ordinary in that three people, not including yourself and co-defendants, were placed in extreme danger .... The amount of money that was taken was substantial. ... [Y]ou not only placed the lives of yourself and your co-defendant in danger but that of innocent parties ....

Such conduct was a sufficient reason for departure from the presumptive guideline sentence, and was properly considered, in accordance with Rule 3.701(b)(3), as “circumstances surrounding the offense.” See Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984); Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984); see also Murphy v. State, 459 So.2d 337 (Fla. 5th DCA 1984).

Appellant asserts that the extent of the departure from the presumptive guideline sentence-in the present case does not correspond wi& the severity of the stated reasons for departure. However, the sentence imposed does not exceed the statutory maximum and the court’s departure from the presumptive guideline sentence is permissibly predicated upon the circumstances of appellant’s offense. No further limitation of the trial court’s sentencing discretion is imposed by either statute or rule, and we therefore- decline to otherwise review the extent of a permissible departure from the presumptive guideline sentence. Accord, Whitlock v. State, 458 So.2d 888 (Fla. 5th DCA 1984); Hanky v. State, 458 So.2d 1143 (Fla. 5th DCA 1984); cf., Swain v. State, 455 So.2d 533 (Fla. 1st DCA 1984).

Although the court did indicate a permissible basis for departing from the presumptive guideline sentence, such reasons were stated orally and no separate written explanation was provided. A written statement is expressly required by Fla. R.Crim.P. 3.701(d)(ll). In Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984), at footnote 2 it was indicated that such written statement is essential and an oral pronouncement will not suffice. Accord, Millett v. State, 460 So.2d 489 (Fla. 1st DCA 1984); contra, Webster v. State, 461 So.2d 965 (Fla. 2d DCA 1984); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); Harvey v. State, 456 So.2d 926 (Fla. 4th DCA 1984). The court’s departure from the presumptive guideline sentence thus may not be predicated upon its oral pronouncement; on remand, should the court again depart from the presumptive guideline sentence, it must express the reason for such departure in writing.

Appellant’s sentence is hereby vacated and the cause remanded for resentencing.

MILLS and SHIVERS, JJ., concur.


text:
    James Edward DANIELS, Appellant, v. The STATE of Florida, Appellee.
    No. 84-795.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 1984.
    Bennett H. Brummer, Public Defender, and Marti A. Rotheiiberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The sole issue on appeal is whether the trial court erred in calculating the defendant’s sentence under the sentencing guidelines, Rule 3.701, Florida Rules of Criminal Procedure.

The defendant pled guilty to burglary of a dwelling and was placed on probation. He subsequently pled nolo contendere to violations of that probation and elected to be sentenced under the sentencing guidelines, specifically reserving the right to appeal the calculation of points under the guidelines.

The trial court revoked defendant’s probation, adjudicated him guilty of burglary of a dwelling and sentenced him to 30 months’ incarceration. The court calculated that the defendant should be charged with 71 points, arrived at by charging 30 points for the primary offense of burglary of a dwelling, a second degree felony; 18 points for a prior record of a single second degree felony (the burglary to which defendant had pled guilty); 5 points for a prior conviction for a category 5 offense (the burglary); a total of 8 points for a prior record of a third degree felony and two misdemeanors; and 10 points for legal constraint at the time of the offense (the probation).

It is the defendant’s contention on appeal, as it was in the trial court, that the trial court erred in charging him with other than the 30 points for the primary offense. The state acknowledges that the defendant was incorrectly charged with 18 points for a prior record; 5 points for a prior conviction for a category 5 offense; and 10 points for legal constraint at the time of the offense. With the exception of the defendant’s challenge to the 8 points scored for prior record of a third degree felony and two misdemeanors, which calculation does not appear from the record to be erroneous, we find that the defendant’s contention has merit. Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984); Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984); § 921.-001(4)(a), Fla.Stat. (1983).

Therefore, in accordance with the law and the state’s concession of error, we vacate the sentence imposed and remand the case to the trial court for resentencing.

Sentence vacated and case remanded.


text:
    Lynwood WHITE, Appellant, v. STATE of Florida, Appellee.
    No. AU-305.
    District Court of Appeal of Florida, First District.
    Dec. 26, 1984.
    Rehearing Denied Feb. 4, 1985.

      Michael E. Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory G. Cos-tas, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a judgment of conviction and sentence for the offense of possession of a firearm by a convicted felon. We find that appellant has presented no point of reversible error and we therefore affirm the judgment and- sentence appealed.

Prior to trial appellant filed motions seeking to preclude “any mention of the nature of” a prior conviction. The court denied appellant’s motions and at trial, over appellant’s objection, a certified copy of a prior judgment of conviction for escape was introduced into evidence. Appellant asserts that the jury was thus impermissi-bly apprised that he was in custody before his earlier offense.

In State v. Williams, 444 So.2d 13 (Fla.1984), the court indicated that a defendant “would undoubtedly be prejudiced by the introduction of ... the details of the nature” of a prior offense. However, Williams did not expressly recede from or otherwise qualify Parker v. State, 408 So.2d 1037 (Fla.1982), which established that a certified copy of a prior conviction may be introduced into evidence if such prior conviction is an essential element of a charged offense. Unlike the present case and Parker, in which the charged offense was possession of a firearm by a convicted felon, Williams was an escape prosecution which required proof of lawful custody rather than a prior conviction. The present case is thus controlled by Parker, and since appellant’s prior conviction is an essential element of the charged offense it was permissible to introduce into evidence a certified copy of such prior conviction.

After trial appellant became aware that a juror had, during a trial recess, undertaken an independent view of the scene of the charged offense. The court was made aware of this circumstance and, with the participation of counsel for both appellant and the state, hearings were held with the juror in question and the jury foreman. The court determined that the offending juror had made a cursory view of the premises and drawn a sketch thereof in the jury room.

Jurors may not, of course, receive any information or evidence that has not been introduced at trial. See e.g., Bottoson v. State, 443 So.2d 962 (Fla.1984); Russ v. State, 95 So.2d 594 (Fla.1957). However, such impropriety warrants a mistrial only if prejudice resulted. See Bottoson, supra; Russ, supra. Similarly, Fla.R.Crim.P. 3.600(b)(2) provides for a new trial where the jury received any evidence out of court, but only where the “substantial rights of the defendant were prejudiced thereby.” In the present case the court’s inquiry revealed that the offending juror’s personal view of the scene was of but momentary duration, without substantial informative value, and did not taint the jury’s deliberative process. It was thus ascertained that the impropriety was not of such a character as to probably influence the jury or otherwise raise a presumption of prejudice. The asserted impropriety may accordingly be considered harmless and does not require a mistrial. Compare Russ, supra.

Appellant having failed to present any point of reversible error, the judgment and sentence appealed are hereby affirmed.

SHIVERS and NIMMONS, JJ., concur.


author: ORFINGER, Judge.

text:
    Carl Ray SONGER, Appellant, v. CITRUS COUNTY, FLORIDA, Appellee.
    No. 83-1430.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.
    Joseph Jordan, P.A., West Palm Beach, for appellant.
    Larry M. Haag, Citrus County Atty., In-verness, for appellee.
   ORFINGER, Judge.

Contrary to appellant’s assertion, there is nothing in sections 27.53, 925.035 or 925.-036, Florida Statutes (1983) which authorizes the imposition of attorney’s fees on a county for the representation of a criminal defendant in post-conviction collateral proceedings. Therefore the trial court was correct when it declined to assess attorney’s fees and expenses against Citrus County for the work done by appellant’s attorney in filing a motion to vacate the imposition of the death penalty and in appealing the denial of that motion. The order denying assessment of fees against Citrus County is therefore

AFFIRMED.

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


author: WALDEN, Judge.

text:
    MICHELIN REIFENWERKE, A.G., Appellant, v. Susan Ann ROOSE, and Michelin Tire Corporation, Appellees.
    No. 81-1878.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Rehearing Denied Feb. 1, 1985.

      Larry Klein, West Palm Beach, for appellant.
    Christian D. Searcy of Montgomery, Ly-tal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso, West Palm Beach, for appellees.
   WALDEN, Judge.

The trial court granted plaintiff’s motion to amend her complaint by interlineation thereby adding Michelin Reifenwerke, A.G. as a party defendant. The addition related back to the time of filing the original complaint. The relation back nullified the Statute of Limitations which had run as to this new defendant prior to the time of the order. The stated basis for the order was “misnomer” and to correct an ambiguity in the captioning of the case. Michelin Reif-enwerke, A.G. appeals. We reverse.

The husband of Susan Ann Roose was killed in an automobile accident due to an allegedly defective automobile tire. Mrs. Roose sued Michelin Tire Corporation, a foreign corporation, for wrongful death alleging that it manufactured the tire. Michelin Tire Corporation answered and generally denied the allegations not admitted, which denial necessarily included a denial that it manufactured the tire. At the time the answer was filed this defendant did not know the identity of the tire manufacturer. Much later this defendant conducted discovery and inspected the tire which was in plaintiff’s possession. It then learned in November, 1979, for the first time that it did not manufacture the tire. The answer included a number of affirmative defenses of a kind that one would expect a manufacturer to make. Thus, the answer was inconsistent as sanctioned by Florida Rule of Civil Procedure 1.110(g). In any event, the state of the pleadings was such as to put the burden of proving that Michelin Tire Corporation manufactured the tire upon the plaintiff.

Interrupting in the interest of clarity, there are three corporations involved in this action:

1. Defendant, Michelin Tire Corporation, an American (New York) corporation.

2. Defendant, Michelin Reifenwerke, A.G., a West German corporation.

3. Compagnie Generate des Establiss-ments Michelin, a French corporation.

(Hereafter the above corporations will be referred to by their nationality).

The American and German companies are wholly owned subsidiaries of the French company.

Reflecting the essential calendar of events:

1. The accident occurred on May 1, 1978.

2. Suit was filed in July, 1979.

3. The American company answered in August, 1979.

4. The Statute of Limitations expired on May 1, 1980.

5. The American company moved for a summary judgment apparently in June or July, 1980, on the grounds that it did not manufacture the tire.

6. Plaintiff moved to amend by interlin-eation on October 10, 1980, to add the German company as a defendant because it in fact manufactured the tire.

7. The order being appealed was entered on September 18, 1981.

Historically and as an aside, the appealed order did more than grant plaintiffs motion to amend by interlineation. Because of the American company’s disregard of the court’s discovery orders of January 28, 1981, and April 14, 1981, the court struck the American company’s “defense of who manufactured the tire.” That portion of the order has not been appealed. From the recitals it does not appear that the plaintiff’s discovery efforts were commenced until after the Statute of Limitations had run. Consequently, it cannot be said that the American company frustrated or thwarted the plaintiff’s efforts to timely discover the identity of the tire manufacturer.

As we analyze it, the only factor supportive of plaintiff’s position is the fact that the American and German companies are subsidiaries of the French company. Absent this linkage plaintiff would not even have an argument in our opinion as concerns misnomer. Is this enough to support jurisdiction over the German company? We think not under the circumstances of this case.

Bound as we are by the record presented, we notice among other things, the following critical facts:

1. The American and German companies are totally separate, distinct entities and do not share any common officers, directors or employees.

2. The American company manufactures tires and all of its plants, facilities and offices are located in the United States.

3. The German company manufactures “Sears” brand tires which are sold to Sears in Europe. All of its plants, facilities and offices are located in West Germany, and it only does business in Europe.

4. The French company does not manufacture tires. There are no common officers, directors, managers or employees as concerns the three companies.

5.The German company was not informed of this lawsuit until January, 1981, which date was after the Statute of Limitations had run.

Not usually, there is charge and counter-charge found in the briefs.

A. The German company suggests that plaintiff was remiss, in the fact of the answer denying manufacture, in failing to timely discover the correct identity of the manufacturer. We tend to agree. There are numerous discovery measures in the rule book which could have been employed but were not. The complaint states that it was a Sears tire but it does not appear that plaintiff asked Sears the name of the manufacturer. The tire face says it was made in West Germany. The tire’s D.O.T. number is a matter of public record, which number indicates that it was manufactured by the German company. The tire, of course, was in plaintiff’s possession.

For as much as the record reflects, plaintiff did nothing on this account until the matter was brought home to plaintiff by the other side’s motion for summary judgment.

B. Plaintiff suggests that the American company was remiss in not advising plaintiff of the identity of the correct manufacturer when the American company learned of it in November, 1979. Accepting that the American and German companies are separate and distinct entities, and the other facts of this case, we disagree and say that the American company was not legally obliged to do more than it did, which was to deny manufacture and thus put the burden of developing the case on plaintiff.

C. Plaintiff suggests most strongly that the action of the American company in refusing to make discovery prejudiced them. Assuming that it did, the American company was visited with sanctions as above mentioned and we hardly see how its actions in the case should serve as a basis for punishing the German company, a separate entity.

We have examined the several cases relied upon by plaintiff, Mrs. Roose, and find them to be distinguishable or inapplicable to the facts in this case. The rather common thread found in them, not present here, is that the newly added party had early knowledge of the litigation, that is to say, prior to the running of the Statute, and knew or should have known that the plaintiff had made a mistake or was guilty of a misnomer as concerns the correct identity of the defendant so that the added party was deemed to have suffered no prejudice by being tardily brought in or substituted as a party.

In sum, we hold:

1. Service of process was not obtained upon the German company.

2. There was no misnomer subject to correction and relation back so as to avoid the Statute of Limitations.

We reverse upon authority of Johnson v. Taylor Rental Center, Inc., 458 So.2d 845 (Fla. 2d DCA 1984); Louis v. South Broward Hospital District, 353 So.2d 562 (Fla. 4th DCA 1977), dismissed 359 So.2d 1217 (Fla.1978); Hughes Air Corporation v. Maricopa County Superior Court, 114 Ariz. 412, 561 P.2d 736 (1977); Volkswagenwerk Atkiengelselischaft v. McCurdy, 340 So.2d 544 (Fla. 1st DCA 1976).

REVERSED.

DOWNEY and HURLEY, JJ., concur.


text:
    Keith MYERS, Appellant, v. STATE of Florida, Appellee.
    No. 84-237.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. This is an appeal challenging the trial court’s ruling on a motion to suppress. The evidentiary basis for the court’s ruling consists solely of the testimony of two police officers who responded to a noise disturbance call at a motel in the early morning hours and encountered the appellant in shorts but without a shirt walking around the premises with a “blaster” type radio. One of the officers knew appellant and knew he did not reside at the motel. While the officers were questioning appellant about his identification, appellant gave his purse to the officers indicating that they could look inside since they were “going to do so anyway.” Illicit drugs were found inside the purse. The trial court found the initial detention lawful and further found that the appellant consented to the search of his purse. Upon review of the record we must confess that we are somewhat skeptical of the evidence of consent. However, the only evidence presented was the testimony of the officers. Further, the officers’ credibility was for the trial court to assess. Despite our misgivings we conclude that there is competent, substantial evidence to support the trial court’s findings. Having made that determination, we cannot disturb the trial court’s ruling. Jordan v. State, 384 So.2d 277 (Fla. 4th DCA 1980).

ANSTEAD, C.J., and BARKETT, J., concur.

GLICKSTEIN, J., concurs in result.


text:
    Johnny Lee HOOKS, Appellant, v. STATE of Florida, Appellee.
    No. 84-348.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Rehearing Denied Jan. 31, 1985.
    Richard L. Jorandby, Public Defender, and Ellen Morris and Richard B. Greene, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the judgment of conviction and sentence except that we reverse that portion of the sentence assessing costs on the authority of Jenkins v. State, 444 So.2d 947 (Fla.1984).

We reject the appellant’s claim of harmful error in the rejection of certain evidence of the appellant’s knowledge of prior acts of violence by the victim. In view of the other evidence on this issue actually received we believe the trial court’s ruling constituted harmless error. We also find no error in the receipt of evidence of a prior altercation between the appellant and the victim. See Kennedy v. State, 385 So.2d 1020 (Fla. 5th DCA 1980). Likewise, we reject appellant’s claim that the trial court erred in enhancing appellant’s sentence. See Miller v. State, 438 So.2d 83 (Fla. 4th DCA 1983); contra Smith v. State, 445 So.2d 1050 (Fla. 1st DCA 1984).

ANSTEAD, C.J., and GLICKSTEIN and BARKETT, JJ., concur.


text:
    Mark LAVALLEE, Appellant, v. STATE of Florida, Appellee.
    No. 84-598.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Rehearing Denied Feb. 6, 1985.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Bruner v. State, 398 So.2d 1005 (Fla. 1st DCA 1981).

HERSEY, HURLEY and BARKETT, JJ., concur.