author: FRANK D. UPCHURCH, Jr., Judge. COWART, Judge,

text:
    James Sylvester THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1687.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 1985.

      James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Thomas appeals from judgments and sentences for robbery with a firearm and possession of a short barreled shotgun.

The first point we address is whether the trial court erred in denying Thomas’ motion to suppress. Thomas contends that the photographic evidence used to identify him as one of the assailants was obtained as the result of an illegal arrest. We have reviewed the record and find sufficient competent evidence to support the trial court’s determination that the arrest was proper. Accordingly, we affirm Thomas’ convictions.

The next point we address is whether the trial court erred in departing from the recommended guideline sentence. Thomas was sentenced to concurrent terms of fifteen years for robbery and five years for possession of a short-barreled shotgun. The recommended sentence under the guidelines was nine years. The only reason the court gave for departing from the sentencing guidelines is reflected in the following colloquy:

MR. TEDFORD [defense counsel]: Mr. Thomas has been advised of all of this. He had asked me one focal question which would be, being advised that the Court would, if he elected guidelines, go outside of them. He was curious as to what the criteria would be for going outside. At our bench conference, the Court indicated that the criteria for going outside of the guidelines would be attitude and demeanor of the Defendant during the trial and in Court appearances, also the fact that the Codefendant had entered a guilty plea and was sentenced to fifteen years. And that there is a case law setting forth that the Codefendant should be treated equally. As a consequence, the Court would impose a sentence not less than fifteen, even if the guidelines were elected.
THE JUDGE: I can tell you that the Codefendant who pled and got fifteen years will not get more than Mr. Thomas. Mr. Thomas will get under way— which ever way he goes will receive not less than fifteen years.

No reason for departure was given on the guidelines scoresheet nor did the court provide any other explanation transcribed in the record. The co-defendant’s score-sheet was not made a part of the record.

On appeal, the state has argued that “it is a well-known axiom of law that equally culpable defendants should receive equal sentences,” citing Demps v. State, 395 So.2d 501 (Fla.1981) and Slater v. State, 316 So.2d 539 (Fla.1975). Without analyzing the applicability of those cases to the state’s argument, it is obvious that they are not applicable to sentences calculated under the guidelines. Florida Rule of Criminal Procedure 3.701(b)(4) states:

The severity of the sanction should increase with the length and nature of the offender’s criminal history.

Here, if the co-defendant had an extensive criminal history and Thomas did not, it would not be appropriate to give Thomas a sentence outside the guidlines simply because it was indicated in the co-defendant’s case.

In sum, the trial court erred in departing from the guidelines for the sole reason that Thomas’s co-defendant had received a fifteen year sentence. Accordingly, we affirm the appealed convictions, but vacate the sentences and remand for resentencing to the presumptive or recommended guideline sentence or to a departure sentence imposed in accordance with the sentencing guidelines.

Judgments AFFIRMED; sentences REVERSED and cause REMANDED for re-sentencing.

SHARP, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

This departure sentence should be affirmed on authority of Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); Hackney v. State, 456 So.2d 1209 (Fla. 5th DCA 1984); Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984); Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984).

      . Fla.R.Crim.P. 3.701.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gloria J. TEARDO, Appellant, v. Thomas F. TEARDO, et al., Appellees.
    No. 84-116.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 1985.
    Edward Gay, Orlando, for appellant.
    Michael J. Appleton, Graham, Marlowe & Appleton, Winter Park, for appellees Richard K. Buchanan and Allison H. Buchanan.
    No appearance for appellee Thomas F. Teardo.
   PER CURIAM.

Property held as an estate by the entireties is not subject to the lien of a judgment against one tenant alone. Winters v. Parks, 91 So.2d 649 (Fla.1956); Vaughn v. Mandis, 53 So.2d 704 (Fla.1951); State ex rel Molter v. Johnson, 107 FLa. 47, 144 So. 299 (1932); Ohio Butterine Company v. Hargrave, 79 Fla. 458, 84 So. 376 (1920); Liberman v. Kelso, 354 So.2d 137 (Fla. 2d DCA 1978); Bendl v. Bendl, 246 So.2d 574 (Fla. 3d DCA 1971). The rule applies when the judgment is for arrears in alimony due to an ex-wife as with any other judgment.

AFFIRMED.

ORFINGER, SHARP and COWART, JJ., concur.


author: SHARP, Judge.

text:
    Anthony Dale DOMINGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 84-506.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 1985.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Dominguez argues the trial court improperly calculated his score sheet in sentencing him under the new Sentencing Guidelines, Florida Rule of Criminal Procedure 3.701, because it reclassified the crimes for which he was being sentenced, based on his being found to be a habitual offender. § 775.084, Fla.Stat. (1983). We agree that error occurred and we vacate the sentence and remand for resentencing.

At the sentencing hearing the state offered a score sheet totalling 143 points, which would have placed Dominguez in the presumptive sentence range of five and one-half to seven years in prison. The state then withdrew the score sheet and substituted one with a total of 171 points, which carried a presumptive sentence of nine to twelve years. The judge imposed a twelve year sentence under the Guidelines.

The additional points were added to Dominguez’ score sheet because the state contended as a habitual offender, the crimes should be enhanced by raising the crimes by a degree. The enhancement had the effect of making Dominguez’ armed burglary conviction, normally a first degree felony, scored as a life felony. His conviction for possession of a firearm, normally a second degree felony, was scored as a first degree felony. The two remaining offenses — carrying a concealed weapon, section 790.02, Florida Statutes (1983); and second degree grand theft, section 812.014, Florida Statutes (1983), both third degree felonies — were scored as second degree felonies. The trial judge made findings consistent with determining that Dominguez was a habitual offender, and imposed a Guidelines sentence based on a total of 171 points.

We think the trial court erred in increasing the point count for the crimes in calculating the Guidelines sentence, on the basis of the habitual offender statute. Section 775.084 provides:

“Habitual offender” means a defendant for whom the court may impose an extended term of imprisonment....
* * * * * *
(4)(a) The court, in conformity with the procedure established in subsection (3) and upon a finding that the imposition of sentence under this section is necessary for the protection of the public from further criminal activity by the defendant, shall sentence the habitual offender as follows:
1. In the case of a felony of the first degree, for life.
2. In the case of a felony of the second degree, for a term of years not exceeding 30.
3.In the case of a felony of the third degree, for a term of years not exceeding 10....

This statute has long been construed as a penalty enhancement statute. Washington v. Mayo, 91 So.2d 621 (Fla.1957). It merely prescribes longer sentences, but does not reclassify the offenses enhanced as being new substantive offenses. Eutsey v. State, 383 So.2d 219 (Fla.1980); see also Small v. State, 428 So.2d 337 (Fla. 2d DCA 1983); Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979).

Thus the provision in the Sentencing Guidelines, In Re Amendment to Rules of Criminal Procedure, 451 So.2d 824, 828 (Fla.1984), which states that “if an offender is convicted under an enhancement statute, the reclassified degree should be used as the basis for scoring the primary offense in the appropriate category,” does not apply to the habitual offender statute. It does not reclassify crimes as higher substantive crimes; it merely prescribes longer penalties. Cuthbert v. State, 459 So.2d 1098 (Fla. 1st DCA 1984).

We therefore vacate the sentence imposed on Dominguez in this case, and we remand for resentencing. At that time the trial court may sentence Dominguez pursuant to the Guidelines, including a departure sentence. Gann v. State, 459 So.2d 1175 (Fla. DCA 1984); Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984).

SENTENCE VACATED AND REMANDED.

COBB, C.J., and FRANK D. UP-CHURCH, J., concur.

      . § 775.084, Fla.Stat. (1983).

      . § 810.02(2)(b), Fla.Stat. (1983).

      .§ 790.23, Fla.Stat. (1983).

      . The judge did not evidence any intention in departing from the Guidelines. Fla.R.Crim.P. 3.701(d)(ll).

      . Compare section 775.087, Florida Statutes (1983), which does reclassify offenses.
      The committee note to Rule 3.701(d)(10) states:
      If an offender is convicted under an enhancement statute, the reclassified degree should be used as the basis for scoring the primary offense in the appropriate category.
      The committee notes have been adopted by the Florida Supreme Court as part of the rules. See The Florida Bar: Amendment to Rules of Criminal Procedure, 451 So.2d 824 (FIa.1984). The commission's comment to the committee note, which has not been adopted by the supreme court, originally provided that:
      The legislature has also provided that enhanced penalties may be imposed under specific circumstances (§ 775.084, Fla.Stat. (1981), habitual offender, § 775.087, Fla.Stat. (1981), use of a weapon or firearm in commission of a felony, and § 775.0845, Fla.Stat. (1981), wearing a mask while committing an offense). Thus, a felony of the first degree may be reclassified as a life felony, a felony of the second degree reclassified as a felony of the first degree, and a felony of the third degree reclassified as a felony of the second degree.
      As stated by the court in Cuthbert v. State, 459 So.2d 1098 (Fla. 1st DCA 1984), the comment by the Guideline Commission was “patently erroneous.” Id. at n. 2 at 1099.
      Apparently recognizing its mistake, the Guidelines Commission eliminated the above quoted comment. Sentencing Guidelines Commission, Minutes of the Sentencing Guidelines Commission Meeting, 3 (Mar. 16, 1984). In striking the language, the commission stated "the elimination of that language should make clear that the extended term provision of the habitual offender statute is separate and distinct from the provisions of those statutes which permit enhancement by reclassification of felony degree.”

      . The powers of a sentencing judge under the habitual offender statute present an interesting problem of the interplay between provisions of the habitual offender statute and the Sentencing Guidelines. As stated in Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984), the original committee note to rule 3.701(d)(ll) recognized the existence of statutory alternatives to the sentencing guidelines. Thus, based on this committee note, this court held that a sentence under the Youthful Offender Act, Chapter 958, Florida Statutes (1983), was exempt from the operation of the Guidelines. Hackney v. State, 456 So.2d 1209 (Fla. 5th DCA 1984). However, this committee note was eliminated by the Florida SUpreme Court. In Re Amendment to the Rules of Criminal Procedure. In eliminating that committee note, the court stated
      the committee note to 3.701(d)(ll) which discusses statutory alternatives, has been completely eliminated. While these statutory alternatives are acknowledged, the sentencing court is required to explain the Guideline departure when an alternative program is used.
      451 So.2d at n. 12 at 824. However, as we have pointed in Gann v. State, 459 So.2d 1175 (Fla. 5th DCA 1984), a finding that a defendant is an habitual offender invariably constitutes a clear and convincing reason for departure under rule 3.701(d)(ll). See also Cuthbert; Brady.


text:
    Pete Russell MINTON, Appellant, v. STATE of Florida, Appellee.
    No. 84-696.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 1985.
    James B. Gibson, Public Defénder, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

DISMISSED. See Wells v. State, 390 So.2d 808 (Fla. 5th DCA 1980).

COBB, C.J. and DAUKSCH and CO-WART, JJ., concur.


author: WENTWORTH, Judge.

text:
    HOLDER CONSTRUCTION CO. & Travelers Insurance Co., Appellants, v. Charles SAMUEL & Gulf Constructors International & Michigan Mutual Ins. Co., Appellees.
    No. AZ-169.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1985.

      John J. O’Riorden, Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellants.
    James T. Earle, Jr., Riden, Watson & Goldstein, St. Petersburg, for appellees.
   WENTWORTH, Judge.

Holder Construction and Travelers Insurance appeal a workers’ compensation order by which they were ordered to pay medical bills and disability benefits upon a determination that “claimant’s continuing problems and his need for continuing remedial and palliative care relate to the 1981 accident with Holder Construction.” Holder and Travelers assert that claimant’s present symptomatology is due to a new injury sustained in another employment. We find that the record contains competent substantial evidence which supports the deputy’s conclusion to the contrary, and we therefore affirm the order appealed.

While working for Holder Construction in 1981 claimant sustained a back injury which required hospitalization. Upon eventually being released from active medical care claimant obtained cleaning employment in a nursing home and part-time work picking fruit. Claimant testified that both of these employments were beyond his physical capabilities and that he was eventually fired from the nursing home job because he missed so much time from work due to his continuing back problem. Claimant further testified that since his 1981 accident he has continued to experience severe and disabling low back pain and muscle spasms, with somewhat less symp-tomatology during the time he was working at the nursing home. After being discharged from this job claimant then obtained employment with Gulf Construction, although he suspected that such work would be beyond his physical capabilities. While so employed for ten days in 1983 claimant again began to experience severe back pain and advised his foreman that his back “gave out.”

Claimant testified that his present back symptomatology is essentially the same as that which he has continued to experience, in varying degrees of severity, since his 1981 industrial accident. In seeking medical treatment in 1983 claimant referred to a “new incident” when his back “gave out.” However, upon considering claimant’s symptomatology since 1981 the physician suggested that claimant’s present condition is “a continuation from the original accident” and a “resumption of his original complaint.”

The acceptance of such evidence and medical testimony is a determination within the ambit of the deputy’s fact-finding authority, as delineated in Grillo v. Big “B” Ranch, 328 So.2d 429 (Fla.1976), and Crowell v. Messana, 180 So.2d 329 (Fla.1965). There is an adequate evidentiary predicate to support the deputy’s determination that claimant’s condition is a continuation of the symptomatology of the 1981 injury, and that Holder and Travelers, the 1981 employer and carrier, are thus responsible for claimant’s compensable medical treatment and disability benefits.

The order appealed is affirmed.

MILLS and SHIVERS, JJ., concur.


author: DAUKSCH, Judge.

text:
    Danny L. LACKEY, etc., et al., Appellants/Cross-Appellees, v. LITTLE ENGLAND, INC., etc., Appellee/Cross-Appellant.
    Nos. 83-1657, 83-1659.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 1985.
    R. Stephen Miles of Miles & Cumbie, P.A., St. Cloud, for appellants/cross-appel-lees Lackey and Miller.
    Shawn G. Rader of Lowndes, Drosdick, Doster & Kantor, P.A., Orlando, for appel-lee/cross-appellant Little England.
   ON MOTION FOR REHEARING

DAUKSCH, Judge.

We withdraw our prior opinion and substitute in its stead the following.

This is an appeal from a judgment granting appellee an agricultural classification for ad valorem tax purposes. Appellants are the property appraiser and the state department of revenue.

The property involved has been cattle land for many years. It is a part of a county which was almost all agriculturally oriented until Walt Disney World and other tourist industries began. Little England was to be a tourist attraction and it bought the subject land for that purpose. Until it would become operational Little England leased its property to the Overstreets, a ranching family from way-back, on a periodic basis for cattle grazing and some citrus production. During the years involved here Jennings Overstreet leased the land and without question used it for agricultural purposes.

The issue is whether agricultural use of nonagricultural zoned land permits an agricultural classification when the landowner obtains the change in zoning from agricultural to non-agrieultural.

Section 193.461(4)(a)3, Florida Statutes (Supp.1982) requires the property appraiser to “... reclassify the following lands as nonagricultural: ... Land that has been zoned to a nonagricultural use at the request of the owner subsequent to the enactment of this law ...”

This statute is clear and unequivocal but its meaning has been interpreted, in conjunction with another portion of the statute, by our supreme court.

In Markham v. Fogg, 458 So.2d 1122 (Fla.1984), that court held:

As to the final prong of the test, the landowner has no right of rebuttal to the mandatory reclassification of the subject property. This is not fatal, however, because the instant statute can be read in pari materia with Section 193.461(3)(b). After property has been reclassified under subsection (4)(a)3 as non-agricultural, the landowner is not precluded from presenting evidence under subsection (3)(b) to show that his property is indeed being used primarily for bona fide agricultural purposes. That later subsection lists several factors that may be shown by the landowner and if sufficient the property would then be classified agricultural. The procedure, in essence, would be the same as if subsection (4)(a)3 itself were rebuttable. For this reason, it clearly satisfies the third prong of the due process test.

Markham at 1126.

Apparently in order to satisfy due process concerns, the Florida Supreme Court has construed section 193.461(4)(a)3, Florida Statutes, as allowing the landowner to regain his agricultural classification even after the mandatory reclassification resulting from rezoning. He does this by showing “that his property is indeed being used primarily for bona fide agricultural purposes.” In the instant case, there is no question concerning the fact that Jennings Overstreet used the 450 acres concerned in the direct appeal for agricultural purposes.

The appellant contends that language quoted above from Markham is “self-contradictory.” Nevertheless, we are bound to follow and apply it. Therefore, we have granted rehearing and have issued this opinion to be in accord with Markham. We have withdrawn our prior opinion which found the statute to be mandatory and replaced it with this opinion which, under Markham, allows the mandatory classification to be changed.

The order appealed is AFFIRMED.

COBB, C.J., and ORFINGER, J., concur.


author: DELL, Judge.

text:
    Raymond S. HURLEY and related interests, Appellants, v. Henry H. SLINGERLAND, Jr., et al., Appellees.
    No. 81-966.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1985.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, and Michelle E. Kramish, Boca Raton, for appellants.

      Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, and Lavalle, Wochna, Rutherford & Brown, P.A., Boca Raton, for appellee, Slingerland.
   DELL, Judge.

Appellant Raymond S. Hurley appeals from an order directing the receiver in a partnership dissolution proceeding to pay appellees $439,772.02. Appellant challenges only that part of the award which constitutes interest.

In 1971, appellant and several other individuals entered into a limited partnership agreement with appellee. Appellee became a limited partner and agreed to fund the partnership with $220,000. The agreement provided:

CAPITAL. The limited partnership shall initially be funded with a deposit of Two Hundred Twenty Thousand Dollars ($220,000.00) which shall consist of a cash contribution by Parties “B”, for which Parties “A” and “C”,[] together with each of their wives (except the wife of Davis), agree to guarantee the repayment of sixty-two and one-half percent (6272%) of said $220,000.00, (i.e., One Hundred Thirty-Seven Thousand Five Hundred Dollars ($137,500.00) and shall execute a Promissory Note (or Promissory Notes totaling said sum if requested by Henry H. Slingerland, Jr.), which shall be due and payable three (3) years from the date of the execution of this Agreement. In the event Parties “B” have not received said $137,500.00 within three years of the execution of this agreement, then and in that event Parties “B” or any of them may demand payment of such sum from Party “A” and Parties “C” proportional to their percentage of ownership.

The partnership then executed a promissory note in the amount of $220,000.00 and the general partners guaranteed 62V2% of that amount. The note provided for zero interest until maturity (April 26, 1974) and for interest of 10% per annum compounded monthly thereafter.

In April, 1973, appellee brought suit for dissolution of the partnership and alleged self dealing on the part of appellant, Hurley. Appellee sought the appointment of a receiver, an accounting, and a distribution of any amounts due him. He attached a copy of the partnership agreement to his amended complaint. The trial judge appointed a special master to hear the evidence. The special master made his findings and recommendations which the trial court approved. The parties appealed. While on remand, appellee moved for disbursement of his $220,000 capital contribution plus interest. The special master found:

As part of the original limited partnership arrangement, the Plaintiff [Slinger-land] was promised return of his initial capital investment of $220,000 plus interest at ten percent (10%) per annum.

The trial court approved the special master’s recommendation and ordered the receiver to distribute the sum of $220,000 plus interest computed at the rate provided for in the note. The order directed the receiver to pay appellee $439,772.02.

Appellant raises several points on appeal. He contends first, that the trial court erred in awarding interest because appellee sued upon the partnership agreement, which does not expressly provide for interest, and did not specifically plead an action based upon the note; second, that the loan made to the partnership was usurious; and third, that appellee is not entitled to interest under the note because he received the $220,-000 in 1973 and agreed to leave that sum with the receiver in lieu of posting a bond.

We find no merit in appellant’s first point on appeal. The partnership agreement expressly provided for the execution of a promissory note. The note was executed by the partnership and provided the terms of repayment. Taken together, the note and the partnership agreement comprised the entire understanding between the parties. Therefore, the master properly considered the terms of the note in determining that the partnership arrangement entitled appellee to $220,000 plus 10% interest. Appellant has failed to demonstrate that the master’s findings were clearly erroneous or that he misconceived the legal effect of the evidence. Accordingly, the trial court properly approved his findings. See Dent v. Dent, 438 So.2d 903 (Fla. 4th DCA 1983); Sitomer v. Sitomer, 397 So.2d 373 (Fla. 4th DCA 1981).

Next, appellant argues that the transaction was usurious. We disagree. The interest provided for upon default did not constitute a usurious amount. See Connecticut Mutual Life Insurance Co. v. Fisher, 165 So.2d 182 (Fla. 3d DCA 1964). Further, the general partners guaranteed only 62V2% of the face amount of the note. Since a portion of appellee’s investment was at risk, we hold the transaction was not usurious. See Diversified Enterprises, Inc. v. West, 141 So.2d 27 (Fla. 2d DCA 1962).

Finally, appellant argues that appel-lee is entitled to no interest because the note was paid in full in 1973 and appellee voluntarily left the $220,000 with the receiver in lieu of a bond. We have not found where appellant presented this argument to the special master, and appellant concedes that he did not raise it as an exception to the master’s report. Understandably, the trial court did not resolve this issue and we will not consider it for the first time on appeal. See State ex rel. Andreu v. Canfield, 40 Fla. 36, 23 So. 591 (1898).

Therefore the judgment of the trial court is affirmed in all respects.

AFFIRMED.

ANSTEAD, C.J., and HERSEY, J., concur.

      . The term "Parties B” refers to appellee. The term "Parties A and C” refers to the general partners.

      . See Slingerland v. Hurley, 388 So.2d 587 (Fla. 4th DCA 1980), appeal dismissed, 394 So.2d 1152 (Fla.1980). This court affirmed in part, reversed in part and remanded the case for further findings of fact not related to the issues on this appeal.

      . The note provided:
      Interest for each calendar month shall be accrued on the first day of said month and shall be computed on the unpaid balance of the principal and interest existing on the last day of the preceding month. This note shall be considered in default when any payment required to be made hereunder shall not have been made within 30 days following its due date and shall remain in default until said payment shall have been made. While in default, this note shall bear interest at the rate of 10% per annum in lieu of the rate herein-before specified.


text:
    Carlos DiPAOLA, Appellant, v. STATE of Florida, Appellee.
    No. 83-2102.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1985.

      Chanmng E. Brackey and David R. Smith, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Carlos Di Paola was charged by Information with trafficking in cocaine (Count I) and delivery of cocaine (Count II). He appeals his conviction of trafficking (Count I) and possession of cocaine (a lesser included offense of the charge of delivery of cocaine, Count II).

With one exception the matters complained of by appellant, Di Paola, either do not constitute error or the error, if any, was harmless.

Appellant correctly points out that the trial court failed to instruct the jury that it could find him guilty, as to Count I, of the lesser included offense of possession of cocaine.

Possession of cocaine under Section 893.-13(l)(e), Florida Statutes (1983), is a category 1 (one step removed) lesser included offense of trafficking in cocaine under Section 893.135(l)(b), Florida Statutes. Fla. Std. Jury Instr. (Crim.), p. 274.

Failure to give an instruction on the next immediate lesser included offense is per se reversible error. State v. Abreau, 363 So.2d 1063 (Fla.1978).

We disagree with the state’s position that there was no evidence to support a finding of possession (which would implicate Rule 3.510(b), Florida Rules of Criminal Procedure).

The conviction and sentence on Count II is affirmed. We reverse as to Count I and remand for new trial.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED FOR NEW TRIAL.

ANSTEAD, C.J., and HERSEY and HURLEY, JJ., concur.


text:
    BROWARD COUNTY, Appellant, v. MOBIL OIL CORPORATION, et al., Appellees.
    No. 84-630.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1985.
    Susan F. Delegal, Deputy Gen. Counsel and John Franklin Wade, Asst. Gen. Counsel, Fort Lauderdale, for appellant.
    Allan M. Rubin, Allan M. Rubin, P.A., Hollywood, for appellee-Mobil Oil Corp.
   PER CURIAM.

Affirmed on the authority of D.O.T. v. Coulter, 43 Fla.Supp. 32 (Leon Cir.1973).

ANSTEAD, C.J., and LETTS and DELL, JJ., concur.


text:
    Violet T. YOUNG, Appellant, v. ROCKLAND INDUSTRIES, INC., Ellis Chingos, Delray Plaza, Inc., etc., Commercial Contractors, Inc., a corporation, Cherokee Utilities, Inc., a Florida corporation, and Cincinnati Insurance Company, an Ohio corporation, Appellees.
    No. 84-1016.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1985.
    Ronald R. Swartz of Steen & Swartz, P.A., Tampa, for appellant.
    William C. Dick and Michael T. Hand, Orlando, for appellee Cincinnati Ins. Co.
   PER CURIAM.

Reversed and remanded for further proceedings on the authority of Beasley v. Girten, 61 So.2d 179 (Fla.1952) and Crystal Lake Golf Course v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971). This reversal is without prejudice to the entry of lesser sanctions than the entry of default against the appellant or her counsel.

ANSTEAD, C.J., and DOWNEY and HURLEY, JJ., concur.


author: OTT, Acting Chief Judge.

text:
    Edward BEN, Appellant, v. STATE of Florida, Appellee.
    No. 84-583.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 1985.

      Jerry Hill, Public Defender, Bartow, and Deborah K. Brueekheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Acting Chief Judge.

A jury convicted the appellant for robbery. He appeals the trial court’s denial of his motion for judgment of acquittal, arguing that he was not guilty of robbery because there was no force used until after the actual taking. We disagree and affirm.

Appellant was observed by Holcomb, a Maas Brothers security guard, as he selected several shirts and took them into the men’s fitting room. Holcomb followed the appellant into the fitting room and observed him stuff the shirts under his pants. The appellant then left the store with a woman companion. Holcomb approached them, identified himself, and tried to talk with them. At this time, the woman went south and the appellant ran west. Holcomb pursued and grabbed appellant, who punched Holcomb in the face and continued west. Holcomb again pursued and caught the appellant. Upon being tackled a second time, the appellant kicked Holcomb several times. Appellant was then caught by a police officer in the parking lot as he tried to get into a car driven by his woman companion.

Appellant argues that his motion for judgment of acquittal should have been granted because the taking of the shirts was completed at the time he started to fight with Holcomb, and as such, there had been no force used in the actual taking. He contends that the principles enunciated in Colbey v. State, 46 Fla. 112, 35 So. 189 (1903), should still be applied. In Colbey, the defendant pickpocket was caught by his victim, who grabbed and tussled with the defendant until the police apprehended him. The supreme court held that the evidence did not meet the force or violence required by the robbery statute. The court reasoned:

If the defendant struggled or clinched with Bousman in an effort to overpower him for the purpose of enabling him to secure the money in the pocket, there would be such force as the statute contemplates, but the force used merely in an effort to escape from the grasp of Bousman or to avoid arrest would not be such force as is contemplated by the statute.

46 Fla. at 114, 35 So. 190.

The robbery statute under which appellant was convicted, however, provides that: “[a]n act shall be deemed ‘in the course of committing the robbery’ if it occurs in an attempt to commit robbery or in flight after the attempt or commission.” § 812.13(3), Fla.Stat. (1981) [Emphasis added]. We agree with our sister court in the third district that the amended statute changes the rule enunciated in Colbey. See Stufflebean v. State, 436 So.2d 244 (Fla. 3d DCA 1983).

We further agree that:
Pursuant to the new statute, force or threat is considered to be contemporaneous with the taking if that force or threat of force is used to overcome a victim’s resistance to an attempted aspor-tation ... [W]here an offender gains possession of property without force and with intent to deprive the true owner of its use, but the victim gives instant and uninterrupted protest or pursuit in an effort to thwart a taking, and the offender then assaults the victim in order to complete a taking of the property and make good an escape, the offense is robbery. This construction of Section 812.-13, supra, we think, is precisely what the legislature intended.

Id. at 245-246. See also Royal v. State, 452 So.2d 1098, 1100 (Fla. 5th DCA 1984) (en banc).

We add that it seems to us a bit strained to differentiate between an appropriation before, as opposed to after, the overt act of violence. The real question is whether violence was employed to effectuate the theft.

Here, appellant used force against the security guard after the taking but while he was trying to escape with the goods from the store parking lot. We hold that this was robbery within the meaning of section 812.13, Florida Statutes (1981).

Appellant’s other point on appeal is without merit.

Accordingly, the appellant’s conviction and the trial court’s denial of his motion for judgment of acquittal are AFFIRMED.

DANAHY and SCHOONOVER, JJ., Concur.


author: JOANOS, Judge.

text:
    James R. HATCHER, Appellant, v. PANAMA CITY NURSING CENTER, INC., a Florida corporation, Appellee.
    No. AX-467.
    District Court of Appeal of Florida, First District.
    Jan. 8, 1985.
    Edwin W. Held, Jr., Fischette, Parrish, Owen & Held, Jacksonville, for appellant.
    Steven A. Werber, Commander, Legler, Werber, Dawes & Sadler, Jacksonville, for appellee.
   JOANOS, Judge.

Dr. James R. Hatcher has appealed the •trial court’s final order which granted summary judgment to appellee (defendant in the lower tribunal), and denied Dr. Hatch-er’s claim for specific performance of an agreement for the sale of Panama City Nursing Center, Inc., to him. The issues that have been raised on appeal are (1) whether the acceptance and negotiation of the return of the earnest money deposit constituted, as a matter of law, a rescission of the contract or terminated the seller’s obligations under the terms of the contract; (2) whether under the circumstances of this ease equity will allow relief from a principle of law; and (3) whether the trial court erred in granting the seller’s motion for summary judgment on the claim for damages. We affirm in part and reverse in part.

Mr. Ronald Langley, president of Panama City Nursing Center, Inc., contracted with Dr. James Hatcher of Baton Rouge, Louisiana, for the sale of Panama City Nursing Center, Inc., to Dr. Hatcher. Throughout the negotiations Dr. Hatcher was represented by his Louisiana counsel, Mr. Donald Bradford, and by Florida counsel, Mr. Thomas Turner. The agreement required an earnest money deposit of $10,-000.00 and contained a liquidated damages clause which provided (1) if the seller defaulted on the sale, it would return the earnest money deposit and would pay an additional $10,000.00 as liquidated damages to the purchaser; and (2) if the purchaser defaulted, the seller would retain the $10,-000.00 earnest money deposit as liquidated damages. The agreement further provided that the purchaser would have the right to inspect the roof and the heating, ventilation and air conditioning equipment prior to the closing. In addition, the seller warranted that, to the best of seller’s knowledge, the property was in good repair.

Pursuant to the agreement, Dr. Hatcher had the roof of the nursing home facility inspected. This inspection revealed that one portion of the roof was in very poor condition. The estimated cost of repair submitted to Dr. Hatcher was $43,500.00. This report and repair cost estimate was forwarded to Mr. Langley. Dr. Hatcher attempted to negotiate a sharing of the costs of the roof repair, but Mr. Langley’s position was that the property was for sale “as is.” Following failure of any agreement concerning the roof repair costs, Dr. Hatcher agreed to accept the nursing home in an “as is” condition.

At about the time Dr. Hatcher was preparing to close the sale, Mr. Langley returned the earnest money deposit. On advice of Mr. Bradford, his Louisiana counsel, Dr. Hatcher sent the Langley cheek (representing the earnest money deposit) to Bradford who, in turn, forwarded the check to Mr. Turner in Florida, with directions that the check would be retendered to Langley — since Dr. Hatcher intended to go forward with the agreement. Mr. Turner did not retender the check because he [Turner] received a letter from Mr. Langley which stated that the Hatcher/Panama City agreement was terminated. When the check was returned to Dr. Hatcher a second time, he deposited it, on advice of counsel, allegedly in order to mitigate damages.

Subsequent to negotiation of the check which represented the return of his earnest money deposit, Dr. Hatcher filed a suit seeking specific performance of the contract. Panama City Nursing Center, Inc., moved for summary judgment alleging (1) the negotiation of the earnest money deposit constituted a rescission of the contract as a matter of law, and (2) the negotiation of the earnest money deposit constituted an accord and satisfaction as a matter of law. The trial court granted appel-lee’s motion for summary judgment, holding that Dr. Hatcher’s “acceptance and negotiation of the check returning the earnest money deposit constituted a rescission of the contract as a matter of law, and terminated all obligations of the parties under the contract.”

Research has not disclosed a Florida case which holds, as the trial court did in this case, that acceptance and negotiation of the return of an earnest money deposit constitutes a rescission as a matter of law, nor have the parties herein cited such a case. Nevertheless, there is a general principle of law that parties to a contract may stipulate what the consequences of a breach shall be and if the stipulation is reasonable, it will control and exclude all other consequences. Greenstein v. Greenbrook, Ltd., 413 So.2d 842 (Fla. 3d DCA 1982); 11 Fla.Jur.2d Contracts § 220 (1979). In Dillard Homes, Inc. v. Carroll, 152 So.2d 738 (Fla. 3d DCA 1963), the court held that where a contract fixed the deposit as liquidated damages in the event of a default by the purchaser, retention of the deposit by the seller would be the exclusive remedy. So long as a limitation of remedy provision in a contract is “mutual, unequivocal and reasonable,” the limitation has been upheld by the courts of this state. Greenstein, at 844. See also: Black v. Frank, 176 So.2d 113 (Fla. 1st DCA 1965).

In the case here under review, the parties expressly limited damages to $10,-000.00 in the event of the breach of either party, with the additional proviso of return of earnest money to the purchaser in event of seller’s default. Although the contract does not provide that specific performance would not be available in the event of breach, it does provide expressly that should “Purchaser’s actual damages exceed TEN THOUSAND AND NO/100 ($10,000) DOLLARS, Purchaser is limited to the amount of $10,000.00 and shall apply such amount in satisfaction of Purchaser’s claim.” The contract expressly limits the seller’s damages “to the amount of the earnest money deposit,” i.e. $10,000.00.

In light of the “well established rule that trial court decisions are presumptively valid and should be affirmed, if correct, regardless of whether the reasons advanced are erroneous,” we find that the trial court did not err in granting defendant/appel-lee’s motion for summary judgment on the claim for specific performance. Vandergriff v. Vandergriff, 456 So.2d 464 (Fla.1984); 3 Fla.Jur.2d Appellate Review § 296 (1978).

With regard to the second point raised in this appeal, we reject appellant’s argument that he is entitled to specific performance of the contract because the seller allegedly acted in bad faith. The record reflects that appellant was represented by counsel at all steps of contract negotiation and execution. The contract contains a “mutual, unequivocal and reasonable” limitation of damages provision in the event of breach of either party. There is nothing in this record that suggests unequal bargaining position of the parties. We find no error in the trial court’s rejection of appellant’s claim for specific performance based on the seller’s bad faith.

We do find the trial court erred in awarding summary judgment on the Count III issue of damages. The contract provided that in the event of seller’s breach, the buyer was entitled to a return of his earnest money deposit and an additional $10,-000.00 as payment of liquidated damages. Since there is still an issue as to which party breached the agreement, we reverse and remand on point three, with directions to the trial court to make a determination regarding breach. If the trial court determines that the seller breached the agreement, the trial court shall enter an order directing the seller to pay $10,000.00 as liquidated damages.

Affirmed in part, reversed in part and remanded with directions.

WIGGINTON and BARFIELD, JJ., concur.


author: NIMMONS, Judge.

text:
    Glenn Edward DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. AZ-352.
    District Court of Appeal of Florida, First District,
    Jan. 8, 1985.

      William R. Slaughter, II, Slaughter & Slaughter, Live Oak for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Davis appeals from an order denying, without hearing, his Fla.R.Cr.P. 3.850 motion which was based upon ineffective assistance of his trial counsel by reason of counsel’s conflict in representing both Davis and a codefendant. We reverse.

Davis failed to pull his vehicle into a state agricultural inspection station. He was stopped and asked to return to the station where he was unable to open the back of his truck. A deputy sheriff arrested Davis because he could smell marijuana coming from the truck. The back of the truck was forced open, and six bales of marijuana weighing 266 pounds were found. Small amounts of cocaine were found in the front of the truck. Davis and his passenger, Kenneth Mathews, were charged with trafficking in cannabis and possession of cocaine.

Davis and Mathews were represented by the same trial counsel who filed a motion for severance. The motion was granted. At Davis’ trial, the jury found him guilty of the marijuana trafficking charge but not guilty of the possession of cocaine charge. On his direct appeal, this Court affirmed the judgment in Davis v. State, 430 So.2d 974 (Fla. 1st DCA 1983), “without prejudice to appellant’s right to file a motion for postconviction relief.” Appellant had attempted to raise on the direct appeal the same point now raised in the instant 3.850 proceeding.

In denying the defendant’s 3.850 motion, the trial court stated in his order:

This court has reviewed the entire file, to include transcripts of all pre-trial and trial proceedings in this cause, and after such review, this court finds nothing in the record to substantiate the defendant’s claim that his attorney had a conflict of interest in representing both the defendant and a co-defendant other than any possible conflict that is always present in representing co-defendants and to which the defendant was obviously aware, made no objection thereto and thereby waived the same. The record is devoid of any indication that the attorney actively represented conflicting interests, and there is nothing in the record to demonstrate that the attorney’s dual representation of the defendant and a co-defendant actually affected the adequacy of the attorney’s representation of the defendant.

We do not agree with the trial court.

On February 8, 1982, the trial court heard a motion to suppress filed on behalf of Davis and a motion to dismiss filed on behalf of codefendant Mathews. After the court’s denial of the motions at the conclusion of the hearing, defense counsel referred to the existence of a conflict in his continued representation of both defendants:

Judge, I don’t know how your trial calendar is, but there will be a motion filed for severance in this case based on statements and also based on facts — (interrupted)
* * * * # sf:
Judge, basically on this — obviously there is a conflict in this case and I need to file particular motions and file them properly before this court. I am certain the rule on these motions — the denial of the motion to suppress and the denial of the motion to dismiss changes the factual situation in this case. Whereby I believe that one of the defendants will become a witness for the other if the cases are tried separately, but I will have to file that motion (inaudible) and with getting another counsel because at this stage I would have a conflict.
sfc * # * * *
I believe one of the defendants will be testifying on behalf of the other to the fact that he had no knowledge to the case plus all the statements. I have to analyze it since there will be another lawyer in the case.

Defense counsel did not file a motion to withdraw from the representation of either defendant. However, on February 18, 1982, he did file on behalf of codefendant Mathews a motion for severance. The motion asserted, among other things: (1) that a severance was necessary “to promote a determination of the individual guilt or innocence of [Mathews]”; (2) that there was “no direct evidence that Mathews knew of the presence of contraband in the vehicle driven by [Davis]”; (3) that “the vehicle containing contraband was driven by and authority over it was at all times exercised by [Davis];” (4) that “there exists an inherent conflict in the defense of [Mathews] and [Davis] as to who had control of the contraband”; and (5) that “Davis has informed counsel that he, Davis, would testify at a separate trial that Mathews did not know of the existence of any contraband, nor did Mathews have the ability to control any contraband.”

Counsel had also obtained from Davis an affidavit which was attached to Mathews’ severance motion. Davis’ affidavit stated:

If the trials of Mathews and myself were severed, I would testify at his trial that he did not know the pickup truck contained marijuana and he did not know that there was a vial of cocaine under my (driver’s) seat. I would also testify that I had sole and complete control of the pickup and its contents and that Mathews had no ability or authority to use, dispose of or possess the pickup or any of its contents.

The affidavit also recited that he would not testify to the above facts if the defendants were jointly tried.

When the trial court, prior to commencement of the trial, considered the motion for severance, the state attorney indicated that if Davis were to acknowledge in open court that the signature on the affidavit was his, the state would not oppose a severance, but that the state fully intended to introduce the affidavit into evidence at Davis’ trial. Thereupon, the court suggested that defense counsel present Davis in open court for the purpose of confirming the affidavit. Counsel did and the following colloquy occurred:

[Defense Counsel]: For the record, this is Glen Davis appearing here pursuant to the request of the Court. We are here on the renewal of the Motion for Severance. Do you want me to ask him questions or do you?
THE COURT: I want you to read this because what I am going to do is ask that (sic) your signature and is this true and correct, and I am going to put you under oath on that if you want to testify to it. You don’t have to.
First of all, let me tell you that you certainly don’t have to testify or confirm any of this. And anything you do say can and will be used against you in court in any trial of your case or the co-defendant or anyone else. So, with that in mind let me swear you in and let your attorney ask you what he wants to ask you.
GLENN EDWARD DAVIS, after being duly sworn, then testified as follows:
EXAMINATION BY [DEFENSE COUNSEL].
Q State your full name.
A Glenn Edward Davis.
Q You have read this affidavit filed in this case?
A Yes, sir.
Q Are the contents true and correct?
A Yes, sir.
Q Is that your signature there?
A Yes, sir.
[DEFENSE COUNSEL]: No further questions.
THE COURT: No problem. Anything the State wants to ask regarding the affidavit?
EXAMINATION BY [STATE ATTORNEY]:
Q. Mr. Davis, you understand that this affidavit is being introduced or filed in the case of your co-defendant?
A Yes, sir.
Q And you recognize as the Judge previously indicated that that statement can and will be in all probability used against you in your own trial?
A Yes, sir.
THE COURT: No problem then.

The court then granted Mathews’ motion for severance, and the trial commenced as to the defendant Davis.

During the state’s case-in-chief, the state introduced into evidence, over defense counsel’s objection, Davis’ affidavit. Counsel’s objection was on the basis that “there has been no showing that the affidavit was done freely and voluntarily and the fact that it was done more or less under compulsion that he would testify on behalf of an innocent person.” The propriety of the introduction of the affidavit into evidence was the subject of one of Davis’ points on his direct appeal which, as we have noted, was resolved against Davis.

The right to counsel under the Sixth Amendment to the United States Constitution and Article I, Section 16 of the Florida Constitution encompasses the right to assistance of counsel whose loyalty is not divided between clients with conflicting interests. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Baker v. State, 202 So.2d 563 (Fla.1967); Turner v. State, 340 So.2d 132 (Fla. 2nd DCA 1976).

Dual representation does not in itself violate the constitutional guarantee unless it gives rise to a conflict of interest. In order to establish a violation of the Sixth Amendment guarantee, where no objection to dual representation is made at trial, it must be shown that an actual conflict of interest adversely affected his attorney’s performance. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

In Cuyler the Supreme Court, in discussing the Court’s prior decision in Glasser, supra, and Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), stated:

Glasser established that unconstitutional multiple representation is never harmless error. Once the Court concluded that Glasser’s lawyer had an actual conflict of interest, it refused “to indulge in nice calculations as to the amount of prejudice” attributable to the conflict. The conflict itself demonstrated a denial of the “right to have the effective assistance of counsel.” 315 U.S., [60] at 76, 86 L.Ed. 680, 62 S.Ct. 457 [at 467], Thus, a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. See Holloway, supra, [435 U.S. 475] at 487-491, 55 L.Ed.2d 426, 98 S.Ct. 1173 [at 1180-1182]. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. See Glasser, supra, at 72-75, 86 L.Ed. 680, 62 S.Ct. 457 [at 465-467].

446 U.S. at 349, 100 S.Ct. at 1718.

There can be little doubt that Davis’ defense counsel encountered a serious conflict of interest in attempting to represent both defendants. And it is equally clear that, instead of seeking to withdraw as counsel, he forged ahead and actively represented the competing interests of his clients which actually affected the adequacy of his representation of Davis. We can hardly imagine a more obvious example of the sacrifice of the interests of one client for the enhancement of the interests of the other.

As a practical matter, the principal, if not the only, issue involved in the state’s case against Davis pertained to his knowledge of the presence of the subject drugs in the vehicle. The chances for counsel’s successfully defending Davis by putting the state to its burden of proving knowledge and control were greatly diminished, if not eliminated, by counsel’s furnishing the state with what amounted to a virtual admission of guilt on the part of Davis.

The state seems to suggest that the court’s summoning Davis into the courtroom and eliciting from him acknowledgment of his execution of the affidavit and his understanding that the affidavit could be used against him in his upcoming trial somehow constituted a knowing waiver of his attorney’s conflicting loyalties. On the contrary, what the trial court did in the instant case fell far short of demonstrating such a waiver.

If defense counsel were not going to initiate withdrawal from his representation of Davis, he should have at least more directly advised the court of the conflicting interests so that the court could make the kind of inquiry which would lead to either a proper waiver or substitution of counsel. But where, as here, the trial court knows, or reasonably should know, that a particular conflict exists, the court should initiate the inquiry. See Cuyler, supra, at 347. Although many conflict situations will not be apparent to the trial court such that it would not be reasonable to expect the court to take the initiative, it is not unreasonable to impose such an obligation on the trial court where the conflict is apparent and the conflict-burdened attorney has, for whatever reason, neither removed himself from the conflict nor initiated a proper judicial inquiry leading towards waiver.

For the foregoing reasons, we conclude that Davis was deprived of his Sixth Amendment right to the effective assistance of counsel and that there was no valid waiver thereof. Accordingly, the subject order is reversed and this cause is remanded for the entry of an order vacating and setting aside the judgment and sentence and for a new trial.

SHIVERS and WENTWORTH, JJ., concur.

      . Counsel on appeal was not trial counsel.

      . In a case such as this, the state had the burden of proving that the accused knew of the presence of the substance and that he had the ability to exercise control over it. Sindrich v. State, 322 So.2d 589 (Fla. 1st DCA 1975).

      . No witnesses were called on behalf of the defense.


author: THOMPSON, Judge.

text:
    DESERET RANCHES, a self-insured, Appellant, and Corporate Group Service, Appellant/Cross-Appellee, v. Jerry CROSBY, Appellee, and Florida Farm Bureau Insurance Company, Cross-Appellant.
    No. BA-26.
    District Court of Appeal of Florida, First District.
    Jan. 8, 1985.

      James B. Cantrell, Sparks, Cooper & Leklem, Orlando, for appellant Deseret Ranches and appellant, cross-appellee Corporate Group Service.
    Joseph T. Farrell, Simmermon & Farrell, Orlando, for appellee Jerry Crosby.
    James M. Hess, Driscoll, Langston, Kane & Hess, Orlando, for appellant Deseret Ranches and cross-appellant, Fla. Farm Bureau Ins. Co.
   THOMPSON, Judge.

The self-insured employer, Deseret Ranches, and its servicing agent, Corporate Group Service (CGS), appeal an order requiring CGS to pay claimant temporary partial disability (TPD) benefits from August 28, 1983 to November 21, 1983, and wage loss benefits from November 21, 1983 through April 1, 1984, and ordering the employer’s former carrier, Florida Farm Bureau Insurance Company (FFB) to reimburse CGS for 50 percent of all benefits paid. FFB cross-appeals. We affirm in part and reverse in part.

Jerry Crosby, the claimant, began work for Deseret Ranches as a cowboy in 1978. In May 1981 the horse he was riding slipped, falling against a fence with claimant and injuring claimant’s lower back. At the time of this accident the employer’s insurance carrier was FFB. Following this accident, Crosby continued to work, saw Dr. Luke, a chiropractor, for two months, and then also became a patient of Dr. Far-rar, an orthopedic surgeon. Dr. Luke stated that Crosby reached maximum medical improvement (MMI) as of July 1981. Dr. Farrar placed the date of MMI at May 1982.

In October 1982 claimant had a second accident when the horse he was riding stepped in a hole and fell, throwing him off. At the time of this second accident, the employer was self-insured and the servicing agent was CGS. The second accident primarily injured Crosby’s neck and shoulder. Claimant returned to Dr. Luke that same month and continued treatment with him until December 1983. In January 1983 Crosby also returned to Dr. Farrar, complaining initially of neck pain, although in late January claimant began having trouble with his lower back. From January 1983, until Dr. Farrar saw claimant for the last time in December 1983, his primary complaint was of lower back pain. Dr. Farrar stated that he did not “see enough to warrant the assignment of any impairment” for claimant's lower back. He reserved judgment as to any possible permanent impairment due to the neck injury.

Dr. Bott examined claimant one time in June 1983 at the request of CGS. He evaluated Crosby with regard to both injuries and found no permanent impairment referrable to either accident. He explained that under the AMA Guidelines claimant was not impaired but that under the Orthopedic Surgeon’s Manual (OSM) Crosby would have approximately a 2 percent permanent impairment rating with regard to his neck.

Dr. Maxwell also examined claimant only one time, in November 1983, when Crosby was referred to him by the Vocational Rehabilitative Service. He found that claimant had reached MMI and gave him a 5 percent permanent impairment rating attributable to both injuries. He stated that he had “considered” both the AMA Guidelines and the OSM in assessing the impairment rating.

The deputy commissioner (deputy) accepted Dr. Maxwell’s testimony and found that Crosby had sustained a 5 percent permanent impairment which was attributable 50 percent to each accident. Accordingly, he ordered the two insurers, FFB and CGS, to share the cost of the benefits awarded equally.

On appeal, both FFB and CGS urge that the deputy improperly accepted and relied upon Dr. Maxwell’s testimony over the other medical testimony. We cannot agree. Drs. Farrar, Bott and Maxwell all agreed that any permanent impairment which Crosby suffered does not fall within the range of the AMA Guides, and two of the doctors acknowledge a low rating under the OSM. When an injury is not covered by the AMA Guides “it is not error for the deputy to rely on medical testimony of permanent impairment based upon other generally accepted medical standards.” Trindade v. Abbey Road Beef ’n Booze, 443 So.2d 1007, 1011 (Fla. 1st DCA 1983).

On both appeal and cross-appeal FFB and CGS argue, inter alia, that the deputy erred in apportioning the cost of all benefits between them, 50 percent each. Cross-appellant FFB correctly asserts that the deputy erred in ordering it to reimburse CGS for 50 percent of the TPD benefits payable to claimant. Following his first accident, for which FFB was the carrier, Crosby continued to work while undergoing medical treatment although some slight modifications to his job were suggested by Dr. Farrar. He was discharged in May 1982 as having no permanent impairment. Approximately five months later, in October 1982, claimant had his second accident. As in Hayward Trucking, Inc. v. Aetna Insurance Co., 445 So.2d 385 (Fla. 1st DCA 1984), the servicing agent at the time of the second accident, CGS, should be solely responsible for any TPD benefits payable subsequent to the second accident. Accordingly, the portion of the deputy’s order requiring FFB to reimburse CGS for 50 percent of all TPD benefits paid is reversed.

The apportionment of the permanent impairment rating between the two accidents and corresponding apportionment of the cost of wage loss benefits between the two carriers is proper. A deputy may apportion any permanency a claimant has after he has attained MMI. Hayward Trucking, 445 So.2d at 387. None of the doctors who testified were able to apportion Crosby’s impairment between his two injuries with any degree of certainty, although all agreed that both accidents were clearly troublesome. A 50-50 apportionment under these circumstances seems to be a fair solution.

Therefore, the deputy’s finding that claimant sustained a permanent impairment is affirmed, as is the deputy’s order that FFB reimburse CGS for 50 percent of the cost of the wage loss benefits awarded. That portion of the deputy’s order requiring FFB to reimburse CGS for 50 percent of the TPD benefits awarded is reversed.

ERVIN, C.J., and BOOTH, J., concur.


author: SHIVERS, Judge.

text:
    TREND REALTY OF GAINESVILLE, INC., Appellant, v. Fred B. BULLARD, Jr., Marion E. Forsman, Julian H. Lifsey, and Frank W. Palmer, Appellees.
    No. AX-100.
    District Court of Appeal of Florida First District.
    Jan. 8, 1985.
    John F. Roscow, III, Scruggs & Carmichael, and C. Gary Moody, Gainesville, for appellant.
    Herbert T. Schwartz, Schwartz & Wilson, Gainesville, for appellees.
   SHIVERS, Judge.

Trend Realty of Gainesville, Inc. (the realtor) appeals final order of the trial court directing a verdict for Fred B. Bullard, Jr., et al. (the owners).

Upon perusal of the record and after able oral arguments by counsel for both sides, we conclude that it was improper for the trial court to direct a verdict. We reverse since there are questions of evidence that should be considered and determined by a jury in reaching a verdict. The evidence as a whole, with all reasonable deductions to be drawn therefrom, does not point to but one possible conclusion.

We find conflicting evidence on at least three important points:

1. Whether Julian H. Lifsey, one of the joint venturers or partners, had authority to bind the other joint venturers or partners in negotiating the terms of a contractual agreement.

2. Whether the terms of the “Purchase Agreement” dated July 8, 1981, signed by Philip I. Emmer, as purchaser, were agreed to by Julian H. Lifsey.

3. Whether there was agreement on Article 7.07 of the “Purchase Agreement.”

In reviewing a directed verdict the appellate court must consider the evidence in a light most favorable to the party moved against. Although the evidence is conflicting, the evidence taken in a light most favorable to appellant realtor shows that Lifsey and Emmer came to an agreement concerning every item of the transaction, despite the fact that this was a complex transaction. It was error to direct a verdict against the appellant where the jury could lawfully have returned a verdict for the appellant on the issues.

REVERSED and REMANDED.

THOMPSON and ZEHMER, JJ„ concur.


author: DIXON, C.J.,

text:
    Eugene BARRIFFE, Jr., and Errol Ware v. Luis ORTIZ and Alma Ortiz.
    No. 84-CC-2126.
    Supreme Court of Louisiana.
    Dec. 17, 1984.
   IN RE: Ortiz, Luis et al, Applying for Stay, SUPERVISORY OR REMEDIAL WRITS Parish of Orleans Civil District Court Div. “J” Number 82-19655; ; to the Court of Appeal, Fourth Circuit, Number C-3158

Denied.

DIXON, C.J.,

concurs in the denial. The prayer for extraordinary relief appears, at this time, to be premature. In the event of issuance of process for execution of the judgment, relators may again petition for relief.


author: DIXON, Chief Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. John M. STANDRIDGE, Respondent.
    No. 84 B 2187.
    Supreme Court of Louisiana.
    Jan. 4, 1985.
   ORDER

DIXON, Chief Justice.

Considering the petition of Respondent, John M. Standridge, and the recommendations of the Louisiana State Bar Association through its Committee on Professional Responsibility:

IT IS HEREBY ORDERED that John M. Standridge be and is suspended from the practice of law on the ground of medical incapacity and disability until the further order of this Court.

IT IS HEREBY FURTHER ORDERED that all pending disciplinary proceedings against John M. Standridge be held in suspense.


text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. Robert D. EDWARDS, Respondent.
    No. 82-B-2240.
    Supreme Court of Louisiana.
    Jan. 4, 1985.
   ORDER

The foregoing Petition, the premises, and the law considered

IT IS ORDERED, ADJUDGED, AND DECREED

That Robert D. Edwards be allowed to surrender his license to practice law; that the name of Robert D. Edwards be stricken from the Rolls of Attorneys; and that Robert D. Edwards be and hereby is disbarred on his consent effective May 19, 1983; and that the cost of these proceedings are taxed to Robert D. Edwards.


text:
    STATE of Louisiana ex rel., Johnny LAWRENCE v. SEVENTH JUDICIAL DISTRICT COURT, PARISH OF CONCORDIA.
    No. 84-KH-1954.
    Supreme Court of Louisiana.
    Dec. 3, 1984.
   In re Lawrence, Johnny, applying for mandamus, Parish of Concordia, 7th Judicial District Court, Div. “B”.

Granted. The district court is ordered to act, if it has not already done so, on the post conviction petition submitted in August, 1984.


text:
    STATE of Louisiana ex rel., John W. ALLEN v Hon. Miriam WALTZER, Judge, Criminal District Court, Parish of Orleans, Section “A”.
    No. 84-KH-2020.
    Supreme Court of Louisiana.
    Dec. 5, 1984.
   In re Allen, John W., applying for writ of mandamus, Parish of Orleans, Criminal District Court, Div. “A”, No. 257-653.

Granted. The district court is ordered to act, if it has not already done so, on the post conviction petition submitted in October, 1984.


text:
    STATE ex rel. David NELSON a/k/a Melvin P. Andry v. Hon. Frank A. MARULLO, Judge, Section “D”, Criminal District Court.
    No. 84-KH-1431.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Nelson, David a/k/a, Andry, Melvin P., applying for writ of mandamus, Parish of Orleans, Criminal District Court, Div. “D”, No. 285-773.

Granted. The district court is ordered to act on the pending application within 15 days.


text:
    STATE ex rel. Johnny AUGUSTINE v. Charles C. FOTI, Jr., Sheriff.
    No. 84-KH-1472.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Augustine, Johnny, applying for habeas corpus, Parish of Orleans, Criminal District Court, Div. “G”, No. 281-414.

Granted. The district court is ordered to act on the petition filed in January, 1984, if it has not yet acted.


text:
    STATE of Louisiana ex rel. Mark STEVENS v. STATE of Louisiana.
    No. 84-KH-1516.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Stevens, Mark, applying for remedial writs, Parish of Orleans, Criminal District Court, Div. “H”, No. 288-282.

Granted. The district court is ordered to act on the pending motion for correction of illegal sentence.


text:
    STATE ex rel., John Showers SHAVERS v. STATE of Louisiana, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 84-KH-1802.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Shavers, John Showers, applying for mandamus, Parish of Orleans, Criminal District Court, Div. “G”, No. 293-236.

Granted. The district court is ordered to act on the motion for transcripts by January 5, 1985.


text:
    STATE ex rel. Obadiah STEPHENSON v. Honorable William V. REDMANN, Judge, 4th Circuit Court of Appeals, Hon. Frank J. Shea, Judge, and Clerk of Criminal District Court, Parish of Orleans.
    No. 84-KH-1914.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Stephenson, Obadiah, applying for remedial writ to the Court of Appeal, Fourth Circuit, No. K-2936; Parish of Orleans, Criminal District Court, Div. “G”, No. 215-703.

Granted. The district court is ordered to act on relator’s post conviction petition on or before December 17, 1984.


text:
    STATE of Louisiana v. Michael K. WHALEN.
    No. 84-KK-1944.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Whalen, Michael K., applying for writ of review, City Court of Denham Springs, Div. “ ”, No. 4-83-1345; to the Court of Appeal, First Circuit, No. KW(A)/0812, Livingston Parish.

Granted. Remanded to the Court of Appeal for briefing, argument and opinion.


text:
    STATE ex rel. Maurice SMITH v. Hon. Rudolph F. BECKER, III, Judge and the Clerk of Court, Section “E”, Criminal District Court, Parish of Orleans, State of Louisiana, New Orleans, Louisiana.
    No. 84-KH-1973.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Smith, Maurice, applying for writ of certiorari and/or review, Parish of Orleans, Criminal District Court, Div. “E”, No. 251-120.

Granted. Boykin transcript ordered furnished relator.


text:
    STATE ex rel. Albert GOLDSMITH v. STATE of Louisiana et al., Mrs. Wehdolyn Hampton of the Department of Mental Health and Human Resources.
    No. 84-KH-2009.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Goldsmith, Albert, applying for mandamus, Parish of Orleans, Criminal District Court, Div. “G”, Nos. 299-885, 299-958, 298-142.

Granted for the purpose of transferring to the trial court for consideration.


text:
    STATE of Louisiana v. Richard B. BRUCE.
    No. 84-KH-1098.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Court of Appeal, 4th Circuit, filing order of transfer to reconsider this Court’s order of September 14, 1984, 456 So.2d 153, transferring this application to Court of Appeal, 4th Circuit, Parish of Orleans, No. 257-252.

Granted for the purpose of transferring to the Court of Appeal, 4th Circuit, for action.


text:
    STATE ex rel. James R. THOMAS v. STATE of Louisiana.
    No. 84-KH-0668.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re James R. Thomas, applying for reconsideration of writ denial of November 2, 1984, 458 So.2d 916, to the 19th Judicial District Court, Parish of East Baton Rouge, No. 58817, Section “I”.

Reconsideration denied.


text:
    Charles Joseph CERTAIN v. EQUITABLE EQUIPMENT COMPANY and Allen-Bradley Company.
    No. 84-C-1571.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Certain, Charles Joseph, applying for reconsideration of writ denial of November 9, 1984, 459 So.2d 535, to the Court of Appeal, Fourth Circuit, Number 13150-CA; Parish of Orleans, Civil District Court, Division F, No. 77-8335.

Denied. Judgment is final. CCP 2166.


text:
    Raymond DURR et al. v. James BLUE et al.
    No. 84-C-1961.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Blue, James et al., Blue, Hazel, applying for writ of certiorari to the Court of Appeal, Third Circuit, No. 83-716; Parish of Natchitoches, 10th Judicial District Court, Div. “A”, No. 45554.

Prior report: 454 So.2d 315.

Not considered, not timely filed.


text:
    STATE ex rel. Gilbert J. SMITH v. Frank C. BLACKBURN, Wdn., Louisiana State Penitentiary.
    No. 84-KH-1974.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Smith, Gilbert J., applying for remedial writs, Parish of Rapides, 9th Judicial District Court, Div. “C”, No. 52-943.

Not considered. The application does not comply with Rule X § 5(a) LA Supreme Court Rules.


text:
    STATE ex rel. Bruce Wayne HARDY v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 84-KH-1976.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Hardy, Bruce Wayne, applying for writ of certiorari and/or review; Parish of Jefferson, 24th Judicial District Court, Div. “0”, No. 81-1189.

NOT CONSIDERED. The application does not comply with this Court’s Rule X, § 5(a) nor with the requirements of the Uniform Application for Post Conviction Relief.


text:
    STATE ex rel. Steven WHATLEY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-1999.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Whatley, Steven, applying for writ of certiorari and/or review, writ of habeas corpus and writ of mandamus, Parish of Orleans, Criminal District Court, Div. “A”, No. 236-161.

Not considered. See Rule 10 Sec. 5(a).


text:
    STATE ex rel. Kenneth S. RAINES v. Hon. Douglas NEHRBASS, Judge, 15th Judicial District Court, Parish of Lafayette Courthouse, Lafayette, La.
    No. 84-KH-2002.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Raines, Kenneth S., applying for writ of certiorari and/or review, Parish of Lafayette, 15th Judicial District Court, Div. “B”, No. 45316; to the Court of Appeal, Third Circuit, No. K-84-871.

Not considered. Rule X § 5(a).


text:
    STATE of Louisiana ex rel. Alfred LABOSTRIE, Sr. v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-2450.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Alfred LaBostrie, Sr., applying for writ of certiorari from the Criminal District Court, Parish of Orleans, No. 251-261.

Denied.


text:
    STATE of Louisiana ex rel. Roy T. MEJIA v. STATE of Louisiana.
    No. 84-KH-0709.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Roy T. Mejia, applying for supervisory writ, to the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 57774.

Denied.


text:
    STATE of Louisiana ex rel. Michael McCLOUD v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0744.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Michael McCloud, applying for writs of certiorari, habeas corpus and mandamus, from the Fourth Judicial District Court, Parish of Ouachita, No. 38117.

Denied.


text:
    STATE of Louisiana ex rel. Claude WOODS and Joseph Woods v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0748.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Claude Woods and Joseph Woods, applying for writ of certiorari and habeas corpus, to the Eighteenth Judicial District Court, Parish of West Baton Rouge, No. 39945.

Denied.


text:
    STATE of Louisiana ex rel. Jake D. JOHNSON, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0970.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Jake D. Johnson, Jr., applying for writ of habeas corpus to the Twentieth Judicial District Court, No. 1-80-235, Parish of East Feliciana.

Denied.


text:
    STATE of Louisiana ex rel. Clarence VARISTE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0984.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Clarence Variste, applying for supervisory writs to Criminal District Court, Parish of Orleans, No. 260-273.

Denied.


text:
    STATE of Louisiana ex rel. Curtis J. MARTIN v. STATE of Louisiana.
    No. 84-KH-1004.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Curtis J. Martin, applying for supervisory and remedial writs from the Criminal District Court, Parish of Orleans, Section “F”, No. 291-837.

Denied.


text:
    STATE of Louisiana ex rel. Ronald L. BONNET v. Hon. Allen J. BERGERON, Commissioner, 19th Judicial District Court, East Baton Rouge Parish.
    No. 84-KH-1035.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Ronald L. Bonnet, applying for writ of mandamus, to the 19th Judicial District Court, Parish of East Baton Rouge, No. 273947.

Denied. Moot.


text:
    STATE ex rel. Vecy BATES, Jr. v. SIXTH JUDICIAL DISTRICT COURT FOR the PARISH OF TENSAS, State of Louisiana, et al.
    No. 84-KH-1068.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Vecy Bates, Jr., applying for writ of review and writ of mandamus, to the 6th Judicial District Court, Parish of Tensas, No. 29822.

Denied.


text:
    STATE ex rel. Eddie Lee JOHNSON v. Charles C. FOTI, Jr., Sheriff.
    No. 84-KH-1074.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Eddie Lee Johnson, applying for remedial writ to the Criminal District Court, Parish of Orleans, No. 263-814.

Denied.


text:
    STATE ex rel. Lawrence BROCK v. John T. KING, et al.
    No. 84-KH-1077.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Lawrence Brock, applying for remedial writs to the Criminal District Court, Parish of Orleans, No. 286-473.

Denied.


text:
    STATE of Louisiana ex rel. Cedric ROBINSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-1160.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
    Reconsideration Denied Jan. 14, 1985.
   In re Cedric Robinson, applying for supervisory writs to the Criminal District Court, Parish of Orleans, No. 277-476, Section “F”.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE ex rel. David HENSLEY v. CRIMINAL DISTRICT COURT, SECTION C, Judge Jerome Winsberg.
    No. 84-KH-1216.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re David Hensley, applying for remedial writ to the Criminal District Court, Parish of Orleans, Section C, No. 296-899; Fourth Circuit Court of Appeal, No. K-2118.

Denied.


text:
    STATE of Louisiana ex rel. Richard STETSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-1228.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Richard Stetson, applying for writs of certiorari, prohibition, and mandamus to the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 74-538, Division “G”.

Denied.


text:
    STATE ex rel. Harold SNEED v. Hon. Rudolph BECKER, III, Judge, Orleans Criminal District Court.
    No. 84-KH-1229.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Harold Sneed, applying for writ of certiorari or review to the Criminal District Court, Parish of Orleans, No. 279-921.

Denied. Appeal is in process of being prepared.


text:
    STATE of Louisiana ex rel. Royal A. EVERY v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 84-KH-1340.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Royal A. Every, applying for writ of certiorari, prohibition, mandamus and habeas corpus to the Criminal District Court, Parish of Orleans, Section E, No. 250-228.

Denied.


text:
    STATE of Louisiana ex rel. Melvin MOORE v. Hon. E. Joseph BLEICH, Judge, Third Judicial District Court.
    No. 84-KH-1373.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Melvin Moore, applying for writ of certiorari and review to the Third Judicial District Court, Parish of Union, No. 26365.

Denied.


text:
    STATE of Louisiana ex rel. Glenn CONSTANTINE v. C. Paul PHELPS, Secretary, Louisiana Department of Corrections.
    No. 84-KH-1480.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Constantine, Glenn, applying for writ of certiorari, writ of review, prohibition & mandamus, Parish of Orleans, Criminal District Court, Div. “A”, Nos. 252-538, 262-845.

Denied.


text:
    VERSAILLES ARMS APARTMENTS v. Patricia WHEELER.
    No. 84-C-1559.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Wheeler, Patricia, applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. CA-1532; First City Court, Div. “B”, No. 222-464, Orleans Parish.

Prior report: 452 So.2d 326.

Denied. Result is correct.

CALOGERO, J., would grant the writ.


text:
    STATE ex rel. Norris J. NASH, II v. Hon. G. Bradford WARE.
    No. 84-KH-1602.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Nash, Norris J., II, applying for writ of certiorari, writ of review, Parish of Acadia, 15th Judicial District Court, Div. “A”, Nos. 34489, 34479.

Denied.


text:
    STATE ex rel. Herbert WOMACK v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary, Criminal District Court, Section “J”, Parish of Orleans.
    No. 84-KH-1627.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Womack, Herbert, applying for writ of habeas corpus, Parish of Orleans, Criminal District Court, Div. “J”, No. 248-192.

Denied.


text:
    STATE ex rel. Clarence BUCKLEY v. Ross MAGGIO, Jr, Warden, Louisiana State Penitentiary.
    No. 84-KH-1705.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Buckley, Clarence, applying for writ of certiorari, writ of review, Parish of Orleans, Criminal District Court, Div. “C”, No. 275-592.

Denied.


text:
    STATE of Louisiana v. Ronald TAUZIER and Glenn Tauzier.
    No. 84-KH-1727.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Tauzier, Ronald et al., Tauzier, Glenn, applying for remedial writs, Parish of St. Tammany, 22nd Judicial District Court, Div. “C”, No. 73474.

Denied.


text:
    STATE ex rel. Claude WOODS v. BLACKBURN, Warden.
    No. 84-KH-1740.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Woods, Claude, applying for remedial writ, Parish of West Feliciana, 20th Judicial District Court, Div. “B”, No. W-75-2-61.

Denied.


text:
    STATE ex rel. John MOSE v. N. Burl CAIN, Warden, et al.
    No. 84-KH-1800.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Mose, John, applying for writ of certiorari, writ of review, supervisory, Parish of Avoyelles, 12th Judicial District Court, Div. “ ”, No. 45-0555.

Denied.


text:
    STATE of Louisiana, ex rel. James L. HUMPHREY v. Arthur J. PLANCHARD, Honorable Trial Judge.
    No. 84-KH-1806.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Humphrey, James L., applying for writ of certiorari, Parish of Calcasieu, 14th Judicial District Court, Div. “E”, No. 5635-78.

Denied.


text:
    STATE of Louisiana v. Louis PROSPER.
    No. 84-K-1817.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Louis Prosper, applying for writs of certiorari, and/or review, to the Court of Appeal, Fourth Circuit, No. KA-1279; Criminal District Court, Parish of Orleans, No. 294-288.

Denied.


text:
    Baptiste W. BRUNNER v. Judy Gerstner, wife of Baptiste W. BRUNNER.
    No. 84-CC-1840.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Gerstner, Judy, applying for writ of certiorari and stay; Parish of Jefferson, 24th Judicial District Court, Div. “F”, No. 297-070; to the Court of Appeal, Fifth Circuit, No. 84-C-504.

Denied.

DIXON, C.J., and CALOGERO, J„ would grant the writ.


text:
    STATE of Louisiana v. Willie Williamson KELLY.
    No. 84-K-1844.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Kelly, Willie Williamson, applying for writ of certiorari, stay, prohibition and mandamus to the Court of Appeal, Second Circuit, No. 16317-KA; Parish of Ouachita, 4th Judicial District Court, Div. “E”, No. 41402.

Prior report: 456 So.2d 642.

Denied.


text:
    STATE of Louisiana v. Harold James JACKSON.
    No. 84-K-1846.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Harold James Jackson, applying for writ of review to the Court of Appeal, Second Circuit, No. 16206-KA; Parish of Caddo, 1st Judicial District Court, Div. “E”, No. 123202.

Prior report: 454 So.2d 1220.

Denied.


text:
    STATE of Louisiana v. Donald R. McLELAND.
    No. 84-K-1848.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re McLeland, Donald R., applying for writ of review to the Court of Appeal, Second Circuit, No. 16300-KA; Parish of Caddo, 1st Judicial District Court, Div. “G”, No. 122687.

Prior report: 456 So.2d 638.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Phillip WILLIAMS, Sr.
    No. 84-K-1850.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Williams, Phillip Sr., applying for writ of review to the Court of Appeal, Second Circuit, No. 16179-KA; Parish of Caddo, 1st Judicial District Court, Div. “E”, No. 123856.

Prior report: 454 So.2d 1211.

Denied.


text:
    STATE of Louisiana v. Ira LOYD.
    No. 84-K-1851.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Loyd, Ira, applying for writ of review to the Court of Appeal, Second Circuit, No. 16325-KA; Parish of Caddo, 1st Judicial District Court, Div. “B”, No. 119322.

Prior report: 455 So.2d 687.

Denied.

LEMMON, J., would grant the writ as to assignment of error # 2.


text:
    STATE of Louisiana v. Elizabeth CHRISEOL.
    No. 84-K-1852.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Chriseol, Elizabeth a/k/a, applying for writ of review to the Court of Appeal, Second Circuit, No. 16453-KA; Parish of Ouachita, 4th Judicial District Court, Div. “B”, No. 40620.

Prior report: 457 So.2d 326.

Denied.


text:
    STATE of Louisiana v. Bill WILLIAMS, Jr. and Mary Ann Williams.
    No. 84-K-1892.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Williams, Bill Jr. et al., Williams, Mary Ann, applying for writ of review to the Court of Appeal, Third Circuit, No. CR83-901; Parish of Vernon, 30th Judicial District Court, Div. “A”, No. 37518.

Prior report: 457 So.2d 902.

Denied.


text:
    STATE of Louisiana v. Michael I. NELSON.
    No. 84-K-1904.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Nelson, Michael I., applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. KA-2010; Parish of Orleans, Criminal District Court, Div. “A”, No. 294-725.

Prior report: 458 So.2d 527.

Denied.


text:
    STATE of Louisiana v. Jerry EARL.
    No. 84-K-1931.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Earl, Jerry, applying for writ of certiorari, prohibition and mandamus to the Court of Appeal, Second Circuit, No. 16595-KA; Parish of Madison, 6th Judicial District Court, Div. “A”, No. 41483.

Denied.


text:
    Steve FOX and Scott Bailey v. DON SIEBARTH PONTIAC, INC.
    No. 84-C-1946.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Fox, Steve et ah, Bailey, Scott, applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. 83-899; City Court of Lake Charles, Div. “A”, No. 82-1094, Calcasieu Parish.

Prior report: 458 So.2d 575.

Denied.


text:
    Donna Elaine ELLIOTT, Individually and as the Administratrix of the Estate of William Stafford Elliott and Cindy Ann Elliott, Individually and Anthony R. Gilbert, Individually and as the Administrator of the Estate of Howard Morris Gilbert and Timothy F. Gilbert, Individually v. Prescilla Ann MERRITT, Oliver Chevrolet, Inc., the St. Mary’s Parish Police Jury, Billy R. Butler, Loylis Duhon, Wilson T. Gautreaux, Cyrus Giroir, Jr., Lawrence Michel, Jr., the State of Louisiana, Department of Transportation and Development (Office of Highways), General Agents Insurance Company of America, Inc., Indiana Lumbermens Mutual Insurance Company of Indianapolis, Indiana, and Liberty Mutual Insurance Company.
    No. 84-C-1949.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Elliott, Donna Elaine etc. et al., Elliott, William Stafford, Elliott, Cindy Ann, Gilbert, Anthony R., Gilbert, Howard Morris, Gilbert, Timothy F., applying for writ of certiorari to the Court of Appeal, First Circuit, No. 83-CA-1065; Parish of St. Mary, 16th Judicial District Court, Div. “B”, No. 65726.

Prior report: 457 So.2d 1216.

Denied.


text:
    BOURGEOIS, DUPUIS, WRIGHT, & COHEN CERTIFIED PUBLIC ACCOUNTANTS v. James A. HAYES, Steven J. Durio, & Oliver Richard, III.
    No. 84-C-1951.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Bourgeois, Aubrey et al., Dupuis, James H., Wright, John, Cohen, Brad, applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. 83-838; Parish of Lafayette, 15th Judicial District Court, Div. “A”, No. 82-5245.

Prior report: 457 So.2d 231.

Denied.


text:
    STATE ex rel. Louis CHANSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 84-KH-1955.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Chanson, Louis, applying for writ of habeas corpus, Parish of St. Tammany, 22nd Judicial District Court, Div. “A”, No. 34043.

Denied.


text:
    Glenna C. GLOVER v. Milton J. SOWADA.
    No. 84-C-1956.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Glover, Glenna C., applying for writ of certiorari to the Court of Appeal, Fifth Circuit, No. 83-CA-763; Parish of St. John the Baptist, 29th Judicial District Court, Div. “B”, No. 12556.

Prior report: 457 So.2d 101.

Denied.


text:
    Leroy J. STARK, II v. EUNICE SUPERETTE, INC.
    No. 84-C-1958.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Leroy J. Stark, II, applying for writs of certiorari and/or review, prohibition and mandamus to the Third Circuit Court of Appeal, No. 83-918; 27th Judicial District Court, Parish of St. Landry, No. 84618-1.

Prior report: 457 So.2d 291.

Denied. The result is correct.


text:
    AMERICAN WHOLESALE JEWELERS, INC. v. AMERICAN DRUGGIST INSURANCE COMPANY, INC., et al.
    No. 84-C-1959.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re American Wholesale Jewelers, Inc., applying for writ of certiorari, mandamus, prohibition and/or writ of review to the Court of Appeal, Third Circuit, No. 83-866; 15th Judicial District Court, Parish of Acadia, No. 48815.

Prior report: 457 So.2d 244.

Denied.


text:
    Billy G. HALLEY v. Brenda Scoggins HALLEY.
    No. 84-C-1964.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Halley, Billy G., applying for writ of certiorari and/or review to the Court of Appeal, Second Circuit, No. 16157-CA; Parish of Union, 3rd Judicial District Court, Div. “A”, No. 25543.

Prior report: 457 So.2d 108.

Denied.


text:
    Charlotte Hoffman Inzinna, Wife of Joseph John INZINNA v. Joseph John INZINNA.
    No. 84-C-1966.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Inzinna, Joseph John, applying for writ of certiorari and/or review, writ of prohibition and mandamus to the Court of Appeal, Fifth Circuit, No. 88-CA-853; Parish of Jefferson, 24th Judicial District Court, Div. “D”, No. 237-838.

Prior report: 456 So.2d 691.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Glen D. SANDERS v. MID-SOUTH TRUCKING, INC.
    No. 84-C-1968.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Sanders, Glen D., applying for writ of certiorari and/or review to the Court of Appeal, Second Circuit, No. 16,537-CA; Parish of Caddo, 1st Judicial District Court, Div. “C”, No. 294063.

Prior report: 458 So.2d 988.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Lonnie R. WILLIAMS v. CLERK OF COURT, 14TH JUDICIAL DIST. COURT, PARISH OF CALCASIEU.
    No. 84-KH-1971.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Williams, Lonnie R., applying for mandamus, Parish of Calcasieu, 14th Judicial District Court, Div. “D”, No. 83-2644.

Denied.


text:
    STATE of Louisiana v. Perry M. YELVERTON a/k/a Perry M. Garland.
    No. 84-KH-1972.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Yelverton, Perry M. a/k/a, Garland, Perry M., applying for remedial writs, Parish of Orleans, Criminal District Court, Div. “E”, No. 298-520.

Denied.


text:
    Helen Francis ROBINSON v. TAKAKYO IKARI, Nanking Restaurant, Inc. and Insurance Company of North America.
    No. 84-C-1983.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Robinson, Helen Francis, applying for writ of certiorari and/or review to the Court of Appeal, Second Circuit, No. 16477-CA; Parish of Caddo, 1st Judicial District Court, Div. “B”, No. 291-433.

Prior report: 457 So.2d 180.

Denied.

DIXON, C.J., and BLANCHE and WATSON, JJ., would grant the writ.


text:
    The BANK OF NEW ORLEANS AND TRUST COMPANY v. MONCO AGENCY, INC.
    No. 84-C-1987.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Bank of New Orleans & Trust Co., applying for writ of certiorari and/or review to the Court of Appeal, Fourth Circuit, No. CA-1375; Parish of Orleans, Civil District Court, Div. “B”, No. 82-5076.

Prior report: 457 So.2d 221.

Denied.

CALOGERO, DENNIS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana v. James W. TODD.
    No. 84-KK-1989.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Todd, James W., applying for writ of certiorari and/or review, stay, writ of prohibition and mandamus, Parish of Lafayette, City Court of Lafayette, Div. “B”, No. DT-84-97; to the Court of Appeal, Third Circuit, No. K84-945.

Denied.

CALOGERO, J., would grant the writ.


text:
    Freddie Lee WILSON v. L.C. JACOBS, et al.
    No. 84-C-1995.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Wilson, Freddie Lee, applying for writ of certiorari and/or review, supervisory writ to the Court of Appeal, Second Circuit, No. 16476-CA; Parish of Jackson, 2nd Judicial District Court, Div. “A”, No. 18906.

Prior report: 459 So.2d 64.

Denied.


text:
    CUNNINGHAM, Bereniece V. v. FRANKLIN PARISH SCHOOL BOARD; Charles Harris, President, and Ricky Womack, Jerry Peters, Millicent Bridges, Bill Bradley, Jimmie Hoover, Sam Haggatt, Shirley Blount, W.C. Campbell, and Clen Rollins, Members.
    No. 84-C-1996.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Cunningham, Bereniece V., applying for writ of certiorari and/or review, Court of Appeal, Second Circuit, No. 16485-CA; Parish of Franklin, 5th Judicial District Court, Div. “C”, No. 21390.

Prior report: 457 So.2d 184.

Denied.


text:
    Joe M. LEE v. FORD MOTOR COMPANY, et al.
    No. 84-C-1997.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Lee, Joe M., applying for writ of certiorari and/or review to the Court of Appeal, Second Circuit, No. 16512-CA; Parish of Claiborne, 2nd Judicial District Court, Div. “C”, No. 28247.

Prior report: 457 So.2d 193.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana, ex rel. Ernest LEWIS v. Clerk of Court, E.A. LOMBARD, Criminal District Court, Parish of Orleans.
    No. 84-KH-2001.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Lewis, Ernest, applying for writ of mandamus, Parish of Orleans, Criminal District Court, Div. “A”, Nos. 186-942, 186-943, 186-944, 186-978, 186-946.

Denied.


text:
    Dorothy Nick, Wife of/and Harold J. O’REILLY v. PRAT’S TRAVEL AGENCY, INC., Greyhound World Tours, Greyhound Lines, Inc. and the Herbert Schneider Corporation.
    No. 84-C-2006.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Nick, Dorothy et vir, O’Reilly, Harold J., applying for writ of certiorari and/or review to the Court of Appeal, Fourth Circuit, No. CA-1566; Parish of Orleans, Civil District Court, Div. “J”, No. 79-5720.

Prior report: 457 So.2d 24.

Denied on showing made.

CALOGERO, MARCUS and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. James O. GILMORE v. CRIMINAL DISTRICT COURT AT SECTION “B”, Matthew S. Braniff, Judge, Clerk of Court, Section “B”, Criminal District Court.
    No. 84-KH-2010.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Gilmore, James 0., applying for writ of mandamus, Parish of Orleans, Criminal District Court, Div. “B”, No. 293-386.

Denied. Moot.


text:
    STATE ex rel. George CLAIBORNE v. STATE of Louisiana.
    No. 84-KH-2011.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Claiborne, George, applying for remedial writs, Parish of Orleans, Criminal District Court, Div. “A”, No. 301-514; to the Court of Appeal, Fourth Circuit, No. K-3028.

Denied.


text:
    STATE of Louisiana v. Mark S. THEVENOT.
    No. 84-KK-2013.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Thevenot, Mark S., applying for supervisory writs, Parish of Jefferson, 24th Judicial District Court, Div. “K”, No. 842-230; to the Court of Appeal, Fifth Circuit, No. 84-K-584.

Denied.


text:
    Mary Cotton, Wife of Ralph B. STURGEON v. Ralph B. STURGEON.
    No. 84-CC-2068.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Cotton, Mary Sturgeon, applying for writ of certiorari and/or review, stay, Parish of Jefferson, 24th Judicial District Court, Div. “L”, No. 295-120; Court of Appeal, Fifth Circuit, No. 84-C-643.

Granted. The trial court is ordered to grant a reasonable continuance, but may make arrangements for provisional custody pending the hearing if he deems it necessary.


text:
    STATE of Louisiana ex rel. Keith Kevin HORTON v. Hon. Frank J. SHEA, Judge, Sec. “G”, Criminal District Court, Parish of Orleans.
    No. 84-KH-0855.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Keith Kevin Horton, applying for writ of mandamus to the Criminal District Court, Parish of Orleans, No. 275-566.

Granted. The trial court is ordered to act on relator’s petition.


text:
    STATE ex rel. L.J. THOMAS v. Ross MAGGIO, Jr. Wdn., L.S.P.
    No. 84-KH-1386.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Thomas, L.J., applying for writ of habeas corpus and mandamus, Parish of Orleans, Criminal District Court, Div. “G”, No. 283-992.

Granted. The district court is ordered to rule on the pending application within 15 days.


text:
    Marilyn June Sturrock SIBLEY, Individually and as Natural Tutrix of the Estates of Her Minor Children Shelia K. Sibley and Ashley D. Sibley v. GIFFORD-HILL & COMPANY, INC., et al. Charles M. GILL, Sr. v. Pearly SIBLEY d/b/a PC Welding Service Louisiana Power & Light Co. & Western World Ins. Co.
    No. 84-C-1891.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Sibley, Marilyn Sturrock et al., Gill, Charles M. Sr., applying for writ of review to the Court of Appeal, First Circuit, Nos. 83-CA-0912, 83-CA-913; Parish of Tangi-pahoa, 21st Judicial District Court, Div. “A”, Nos. 58331, 60165. "

Prior report: 456 So.2d 684.

Granted.


text:
    Lester Arcard ESCO v. Henry SMITH, Fremin Smith, William Bass, Randy Dixon, State of Louisiana, Through the Department of Highways, Universal Iron Works, Inc., D & G Rental & Sales, Inc., Lubie Guidry d/b/a Houma Shipbuilders, Inc., Houma Shipbuilders, Inc., Louisiana Power & Light Company, Crum and Forster Insurance Companies and/or one of its subsidiaries.
    No. 84-C-1930.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Esco, Lester Arcard, applying for writ of certiorari to the Court of Appeal, First Circuit, No. 83-CA-1055; Parish of Terrebonne, 32nd Judicial District Court, Div. “A”, No. 50676.

Prior report: 457 So.2d 786.

Granted.