author: CAMPBELL, Acting Chief Judge.

text:
    James R. ENDRESS, Appellant, v. STATE of Florida, Appellee.
    No. 83-2295.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1985.
    Rehearing Denied March 29, 1985.
    Norman S. Cannella of Norman S. Can-nella, P.A., Tampa, and Bennie Lazzara, Jr., of Bennie Lazzara, Jr., P.A., Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Acting Chief Judge.

Appellant appeals his conviction of first degree murder and resulting sentence to life imprisonment without eligibility for parole for twenty-five years. We affirm.

Appellant raises three points on appeal. One of his points concern the scope of the testimony of an expert witness. A Dr. Miller, an associate Hillsbor-ough County Medical Examiner, was called and qualified as a medical expert to establish the cause of death of the victim. His opinion was that death was by strangulation, caused by multiple injuries on the victim’s neck. In addition, he offered his opinion as to the number of possible assailants and their relative strength compared to the victim. We conclude that the matters concerning which the expert testified were within his expertise. The trial court has broad discretion concerning the range of subject matter upon which experts may testify and absent clear showing of error, that exercise of discretion will not be disturbed on appeal. Johnson v. State, 393 So.2d 1069 (Fla.1980).

Another of appellant’s points also rests largely within the trial court’s discretion. That point dealt with the trial court, at the state’s request, calling a witness favorable to the state as the court’s witness. The witness’s trial testimony was expected to contradict previous statements given to defense counsel. It was within the trial court’s discretion, under those circumstances, to call the witness as the court’s witness. McCloud v. State, 336 So.2d 257 (Fla.1976); Delanie v. State, 362 So.2d 689 (Fla. 2d DCA 1978).

Appellant’s remaining point concerns the trial court’s refusal to suppress certain of his statements made subsequent to his arrest. While there are cases which fall on both sides of the issue of suppression under somewhat similar circumstances, we feel that the circumstances of this case clearly support the trial court’s refusal to suppress.

Appellant was arrested at approximately 7:15 a.m., on October 28, 1981, for a homicide that had occurred at a motel within the city limits of Tampa on October 13, 1981. At the time of the homicide, appellant was a resident of the motel. Appellant is an adult male. Prior to his arrest, his father had requested that the Tampa police not question appellant until the father could talk with him at the Tampa Police Department. The arresting officers honored the father’s request. They also advised appellant of his constitutional rights at the time of his arrest and he indicated he understood those rights. Later, appellant was booked into the Hillsborough County Jail on a charge of first degree murder. The homicide investigation continued to be within the jurisdiction of the Tampa Police Department, even though appellant was booked into the Hillsborough County Jail in the custody of the Hillsborough County Sheriff.

After being booked into the Hillsborough County Jail, a Detective Hunt with the sheriff’s office, noticed on a booking slip that appellant was in jail on the charge of first degree murder. Detective Hunt had been good friends with appellant and his family for better than ten years. They were active members of the same church. After seeing the booking slip, Detective Hunt sought permission for a personal visit with appellant to inquire of his well-being.

Detective Hunt had not been in communication with any law enforcement agencies connected with the homicide. The key point is that he did not interrogate appellant concerning the crime for which he was charged. He visited with him twice. On one or both occasions, appellant voluntarily told Detective Hunt about purchasing a “street gun” at another person’s request and keeping a portion of the money furnished for the purchase. When Detective Hunt realized appellant might be telling him something about the crime, he advised him not to talk about it. He did not advise him of his constitutional rights because he did not interrogate him and did not want to be involved in the criminal investigation.

This court has held that even under circumstances where there is the equivalent of an interrogation, it is not necessary to readvise a defendant of constitutional rights where there has been such advice previously given and understood. State v. Williams, 386 So.2d 27 (Fla. 2d DCA 1980). We conclude from the record before us, however, that Detective Hunt’s visits with appellant did not rise to the level of interrogation. Halliwell v. State, 323 So.2d 557 (Fla.1975); Ashley v. State, 265 So.2d 685 (Fla.1972); Spikes v. State, 405 So.2d 430 (Fla. 3d DCA 1981). The statements voluntarily made to him were therefore admissible.

Finding no error in regard to any of appellant’s three points on appeal, we affirm.

LEHAN, J., and PACK, R. WALLACE, Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dan GARDENER, Appellant, v. STATE of Florida, Appellee.
    No. 84-2.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1985.
    Linnes Finney, Jr. of Gary, Williams & Walker, Fort Pierce, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., and Katherine V. Blan-co, Asst. Attys. Gen., Tampa, for appellee.
   PER CURIAM.

The defendant, Dan Gardener, appeals a final judgment adjudicating him guilty of the sale of cocaine in violation of section 893.13(l)(a)(l), Florida Statutes (1981). We affirm.

We deem it appropriate to discuss only one of defendant’s points on appeal: that the trial court erred in departing from the sentencing guidelines. The sentencing guideline worksheet indicated that the defendant had a total of 65 points which, under the guidelines, called for a recommended sentence of any non-state prison sanction. However, the court departed from the guidelines and imposed a 30-month sentence with five years probation to follow and fined the defendant $10,000 plus $500 as the surcharge required by section 960.25, Florida Statutes (1981).

In departing from the guidelines, the trial judge, in accordance with rule 3.701(d)(ll), delineated in a written statement his reasons for departure:

The defendant is a teacher. He sold cocaine. Tapes indicate he was doing business on school property. He talked about laughing all the way to the bank indicating pure greed and utter disregard for the high position of trust given to him, especially in the eyes of his children students.

On appeal, the defendant argues that pursuant to rule 3.701(d)(ll), factors relating to the offense should not be included in computing the sentence. We disagree. In Smith v. State, 454 So.2d 90, 91 (Fla. 2d DCA 1984), this court concluded that rule 3.701(d)(ll) “does not prohibit the court from considering aggravating circumstances and actions of the accused in the commission of the offense ... as a basis for departure from the guidelines.” See also Mischler v. State, 458 So.2d 37 (Fla. 4th DCA 1984).

The defendant also argues that the departure from the guidelines was based on his social status, in violation of rule 3.701(b)(1), Florida Rules of Criminal Procedure. This argument is also without merit. The trial judge in his written statement did not base the reasons for departure on the defendant’s social status, i.e., the fact that he was a schoolteacher; rather, the principal basis for departure was the defendant’s abuse of his position of trust.

AFFIRMED.

GRIMES, A.C.J., and OTT and LEHAN, JJ., concur.


author: THOMPSON, JAMES R., Associate Judge.

text:
    Leonard J. RAMSEY, Appellant, v. STATE of Florida, Appellee.
    No. 84-804.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1985.
    James Marion Moorman, Public Defender, Bartow, and Allyn Gaimbalvo, Asst. Public Defender, Clearwater, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   THOMPSON, JAMES R., Associate Judge.

The appellant, Leonard J. Ramsey, seeks reversal of the sentence imposed by the trial court which departed from the sentencing guidelines. Fla.Rule Crim.P. 3.701. On appeal Ramsey argues that the trial court erred in sentencing him outside the recommended guidelines because the court gave no reasons at sentencing or with the judgment and sentence to justify the departure. We agree. Florida Rule of Criminal Procedure 3.701(d)(ll) provides that any sentence outside the guidelines must be accompanied by a written statement delineating the reasons for departure. Although this court recognizes that reasons for departure stated in the transcript may satisfy this requirement, see Webster v. State, 461 So.2d 965 (Fla. 2d DCA 1984), in this case no reasons were given by the lower court in a written statement or orally at the sentencing hearing.

We note that the failure of the appellant’s counsel to contemporaneously object to the sentence imposed does not vitiate the appellant’s right to appeal. Rhoden v. State, 448 So.2d 1013 (Fla.1984).

Accordingly, we vacate the appellant’s sentence and remand for resentencing to the presumptive sentence or to a departure sentence imposed in accordance with the sentencing guidelines.

RYDER, C.J., and OTT, J., concur.


text:
    Janis ENGLISH, formerly known as Janis E. Galbreath, Appellant, v. Henderson E. GALBREATH, Appellee.
    No. 84-945.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1985.

      Sarah Richardson of Rahdert, Anderson & Richardson, St. Petersburg, for appellant.
    Anthony P. Gránese, Clearwater, for ap-pellee.
   CAMPBELL, Acting Chief Judge.

Appellant, the former wife, appeals the trial court’s order denying her motion for contempt directed toward appellee, the former husband, for his failure to pay monthly “lump sum alimony” payments. The “lump sum alimony” payments were provided for in an agreement entered into between the parties in anticipation of their dissolution of marriage action. The agreement was approved and incorporated into the final judgment of dissolution of marriage. The trial judge who entered the final judgment was not the same judge as denied the contempt proceeding. The ap-pellee has since filed bankruptcy proceedings. He contended at the contempt hearings, and here, that the “lump sum alimony” payments were not, in fact, alimony for support but were nonmodifiable property settlement payments that are unenforceable by contempt. The trial judge in the contempt proceedings agreed and refused to enforce the payments. We reverse.

The agreement between the parties provided that the “parties desire to settle all questions of alimony, property rights and any other issues....” It had a section labeled “Alimony” which provided that:

The husband shall pay to the wife the sum of $1,400 per month for a period of 121 months, commencing May 15, 1981. The parties intend that these payments represent lump sum alimony of $169,-400.00 payable monthly and that they be deductible to the husband in accordance with the provisions of the Internal Revenue Code. It is further intended that these payments not be modifiable nor contingent upon the occurrence of any event.

It also had a section labeled “Real Property,” and another, “Division of Property Between Parties.” The agreement acknowledged that there was no equity in either of the two parcels of real property owned by the parties and provided that the appellant would convey all of her interest in the marital home and the husband’s medical office building to him. The husband assumed the liabilities thereon.

The other section on property simply provided that the parties had already divided all items of personal property. The husband was to have custody of the parties’ minor child. There were no other provisions for support or alimony. The financial statements reflect the wife had no income and the husband a gross monthly income of $5,000.00. His financial affidavit also reflected “average support paid” of $1,400.00 per month.

While the use of terms such as “alimony,” “support” or “property settlement” are not necessarily conclusive of the intent of the parties, they do have weight in determining the intent. Howell v. Howell, 207 So.2d 507 (Fla. 2d DCA 1968); Woodworth v. Woodworth, 385 So.2d 1024 (Fla. 4th DCA 1980). There is nothing in the record to indicate that this agreement was an exchange of property rights or obligations so as to override the expressed intent of the parties.

This case is remarkably similar to Masters v. Masters, 443 So.2d 388 (Fla. 2d DCA 1983), where we held there was no evidence to support a finding that a provision for lump sum alimony was anything other than what it was labeled. We reach that same conclusion here. See also Zuccarello v. Zuccarello, 429 So.2d 68 (Fla. 3d DCA 1983); McCombes v. McCombes, 440 So.2d 683 (Fla. 1st DCA 1983). The alimony being lump sum alimony payable in installments, it was, therefore, vested in the wife and nonmodifiable. Philipose v. Philipose, 431 So.2d 698 (Fla. 2d DCA 1983); Frye v. Frye, 385 So.2d 1383 (Fla. 2d DCA 1980). Alimony payments, even though they be lump sum payable in installments, are enforceable by contempt proceedings. Howell v. Howell; Zuccarello v. Zuccarello; McCombes v. McCombes. We are not, by this decision, determining that the appel-lee should be held in contempt, but only that the remedy of contempt is available upon a proper finding by the trial court. Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); McCombes v. McCombes.

We are disposed to address one additional problem in this c'ase. While lump sum alimony is vested and nonmodifiable in total amount, we have held that the manner of payment may be subject to modification by the court. Philipose v. Philipose. The parties by their agreement, however, have seemed to preclude a modification in the manner of payments. As we have observed, the agreement provides that “these payments not be modifiable_” (Emphasis supplied.) Even so, we conclude that the parties having once agreed the payments are not modifiable, are not precluded from now agreeing that the manner of payment of the total vested lump sum amount may be modified.

Reversed and remanded for treatment consistent herewith.

LEHAN, J., and PACK, R. WALLACE, Associate Judge, concur.


author: LOGAN, Paul E., Associate Judge.

text:
    WARREN HUNNICUTT, JR., INC., a Florida corporation, Appellant, v. Lawrence GLEASON, Appellee.
    No. 83-1582.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1985.

      Janet H. Thurston of Jacobs, Robbins, Gaynor, Hampp, Burns, Cole & Shasteen, P.A., St. Petersburg, for appellant.
    No Appearance for appellee.
   LOGAN, Paul E., Associate Judge.

Appellant, Warren Hunnicutt, Jr., Inc., appeals the final judgment of the trial court in this action concerning commissions due the corporation for its real estate services. We affirm in part and reverse and remand in part.

Appellant first contends that following its case-in-chief, the judge improperly dismissed a count of the amended complaint alleging that appellant was entitled to a commission for the sale of a building by the defendant on the theory that appellant was the “procuring cause” of the deal. On this point we affirm.

During the spring of 1979 appellee Gleason became aware of Taft Broadcasting’s desire to acquire, for lease or purchase, commercial property in Tampa. Gleason became aware of Taft’s interest through prior dealings with appellant’s salesman Alan Gordon and Taft Broadcasting. Gleason contacted Gordon to have him suggest to Taft that a deal be structured involving some property Gleason knew Taft had bid on unsuccessfully. Gordon passed the information on to Taft, and Taft contacted Gleason, who set out to purchase the subject property, to build a building, and to realize the negotiated deal.

Appellant Hunnicutt, through salesman Gordon, entered into a real estate brokerage commission contract with appellee Gleason on June 27, 1979. The contract provided that Gleason was to pay Hunni-cutt $15,000 within 15 days of closing the loan on the build-to-suit building that Gleason was constructing for Taft Broadcasting. Gleason agreed to pay, in addition, 7.5% of the gross monthly payments received pursuant to the terms of a final contract with Taft.

Due to a downturn in the national economy and problems encountered by Gleason in obtaining financing, Gleason tendered to appellant only half of the commission due under the brokerage contract and none of the agreed upon percentage of the rental. On or about September 1,1980, Taft moved into the building constructed by Gleason. Approximately eight days later Gleason sold the building to a Taft subsidiary. For this sale .appellant Hunnicutt has argued that it is entitled to a commission as the “procuring cause.” In addition, Hunnicutt sued Gleason for the remainder of the commission that had actually been agreed to by contract.

A broker who is the “procuring cause” of a sale of real estate is entitled to a commission. Howard v. Boner, 385 So.2d 699 (Fla. 1st DCA 1980); Banks Real Estate Corp. v. Gordon, 353 So.2d 859 (Fla. 3d DCA 1977); Leon Realty, Inc. v. Hough, 310 So.2d 767 (Fla. 1st DCA 1975). To recover under this theory the broker must bring the parties together and cause the sale as a result of continuous negotiations he instigated. Leon Realty, Inc., 310 So.2d at 769. A seller cannot defeat the broker’s right to a commission by unilaterally excluding him from the negotiations. National Airlines, Inc. v. Oscar E. Dooly Associates, Inc., 160 So.2d 53, 55 (Fla.1964).

In this case the trial judge correctly dismissed the plaintiff’s “procuring cause” count for failure to establish a prima facie case. Our thorough review of the record shows that the plaintiff’s evidence essentially was that a Taft subsidiary purchased the Gleason building eight days after taking possession. There was no evidence that the sale resulted from continuous negotiations instituted by Mr. Gordon, nor that the defendant in any way attempted to interfere with the broker’s efforts to ensure that the sale was consummated. Although there was testimony as to Gordon’s contacts with Gleason, this testimony related to efforts to consummate the lease transaction for which appellant was to receive a commission by contract, and not to any of Gordon’s efforts to procure the actual sale of the building. Gordon admitted that no further commissions on the lease rentals were due once the building was sold. Moreover, appellant never contended that by selling the building, Gleason wrongfully deprived appellant of the balance of its commission on the lease rentals.

In its second and third points on appeal, plaintiff argues that the trial court erred by failing to award it costs and prejudgment interest for damages resulting from the defendant’s breach of the written real estate commission contract. Plaintiff prevailed on count I of the complaint, and the judge awarded it $7,500 as the balance of the unpaid commission and $95.50 for seven and a half percent of the collected rental. These damages were fixed by a contract and were liquidated; therefore, prejudgment interest should have been awarded. Town of Longboat Key v. Carl E. Waddell & Son, 362 So.2d 719 (Fla. 2d DCA 1978). Finally, the judge failed to provide for taxation of costs in favor of the prevailing party as required by section 57.041, Florida Statutes (1983). On remand, the trial judge should amend the judgment to reflect the awards, prejudgment interest and costs.

Affirmed in part, reversed in part, and remanded.

RYDER, C.J., and GRIMES, J., concur.


author: FRANK, Judge.

text:
    Nestor TENORIO, Appellant, v. STATE of Florida, Appellee.
    No. 83-1773.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1985.

      James Marion Moorman, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   FRANK, Judge.

The appellant challenges an order, entered pursuant to Rule 3.830 of the Florida Rules of Criminal Procedure, adjudicating him guilty of four acts of direct criminal contempt for which he received a sentence of four consecutive six-month terms. The appellant pleaded guilty to three of the four acts of contumacy. The appellant contends he was entitled to a jury trial for the reason that the aggregated sentences exceeded six months. See Aaron v. State, 345 So.2d 641 (Fla.1977). We disagree and affirm the determinations of guilt. The sentences are also affirmed with the exceptions dealt with below.

Contrary to the appellant’s claim that his behavior in the presence of the court constituted but a single act, thus rendering a sentence without a jury trial in excess of six months constitutionally impermissible, the trial court correctly concluded that four temporally distinct episodes of contumacious conduct occurred, i.e. the expression of an obscenity directed to the court at or near the courtroom’s doorway, the repetition of the obscenity when the appellant was brought into the courtroom, and two separate acts of kicking “buckets of files” from the clerk’s desk. Here, unlike the factual setting in Butler v. State, 330 So.2d 244 (Fla. 2d DCA 1976), it cannot be said that the appellant’s actions may be treated as a single act. The record discloses they plainly were not. Moreover, the physical and verbal outbursts did not occur in the context of a verbal contest between the court and the contemnor which would in any degree warrant a belief that the court provoked the conduct forming the basis for the judgments of guilt and the separate sentences. Cf. Skelton v. Beall, 133 So.2d 477 (Fla. 3d DCA 1961).

The appellant properly points out, however, that the trial court failed to set forth facts in the judgments upon which the adjudications of guilt are based. Osborne v. State, 430 So.2d 551 (Fla. 2d DCA 1983), requires that the technical error be corrected.

Finally, one of the court’s sentencing orders erroneously imposes a sentence “for a term of Hillsborough.” It is obvious that a typographical error occurred. Upon remand, the written sentence as to paragraph 4 of the charging instrument should be corrected to conform to the trial court’s oral pronouncement of a term of six months to be served consecutively on each of the four paragraphs of that instrument.

Accordingly, we affirm the sentences and remand for the correction of the technical errors in accordance with this opinion.

OTT, A.C.J., and BOARDMAN, EDWARD F., (Ret.) J., concur.

      . Notwithstanding that the trial court initiated the contempt proceeding under Rule 3.830, it neither adjudicated nor punished the acts of contumacy summarily. Rather, the trial court accorded the appellant the procedural safeguards provided in Rule 3.840.


author: SCHEB, Acting Chief Judge.

text:
    Carl BOND, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 84-1090.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1985.
    James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

Defendant was convicted and sentenced for attempted sexual battery of a child under the age of eleven and for handling and fondling of a child under the age of fourteen. He was sentenced to concurrent thirty-year terms of imprisonment, and the court retained jurisdiction for a period of ten years on each charge. On appeal defendant’s only challenge is to his sentences.

The offense of handling and fondling a child under the age of fourteen is a second-degree felony, section 800.04, Florida Statutes (1983), and is punishable by a maximum sentence of fifteen years imprisonment. § 775.082(3)(c). Therefore, we vacate defendant’s thirty-year sentence for the handling and fondling charge and remand to the trial court for correction of that sentence. We also strike the retention of jurisdiction on the handling and fondling charge. Section 947.16(3) limits the trial court’s retention of jurisdiction to “the first one-third of the maximum sentence imposed.” See Martin v. State, 452 So.2d 938 (Fla. 2d DCA 1984). We otherwise affirm each of defendant’s convictions and his sentence on the attempted sexual battery charge.

LEHAN and FRANK, JJ., concur.


text:
    Donald E. LYONS, Appellant, v. STATE of Florida, Appellee.
    No. 84-1137.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1985.
    James Marion Moorman, Public Defender, Bartow, and L.S. Alperstein, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We reverse defendant’s sentence. The trial court did not state clear and convincing reasons for his departure from the sentencing guidelines. Fla.R.Crim.P. 3.701(d)(ll). In fact, the trial court said he would state his reasons in a later written order, but apparently no such order was entered.

The transcript of the sentencing hearing shows that the trial court gave some indication of his reason for departure. The transcript may be a proper substitute for separately stated written reasons. Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984). However, we do not conclude that the indications given at the hearing were clear and convincing reasons for departure. Those indications appear to have done no more than refer to elements of the offense for which defendant was convicted.

Reversed and remanded for resentenc-ing.

SCHEB, A.C.J., and LEHAN and FRANK, JJ., concur.


text:
    Anne B. BLAKISTONE, Appellant, v. John R. BLAKISTONE, Appellee.
    No. 84-1372.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1985.

      Brenda Coker Wilson, Faerber & Wilson, Naples, for appellant.
    Jeffrey C. Quinn and Louis Erickson, Sparkman, Erickson & Quinn, Naples, for appellee.
   PER CURIAM.

Appellant Anne Blakistone appeals from the final judgment of dissolution of marriage. As her primary point on appeal, appellant contends the trial court’s $50,000 lump sum alimony award is insufficient to meet her needs and should be supplemented with permanent periodic alimony. We agree.

The parties were married for forty-two years with appellee serving as the breadwinner and appellant performing the traditional role of homemaker. The sixty-five-year-old appellant has a high school education but has not worked in forty-four years. Appellee, on the other hand, is a college graduate who has worked as a mortgage analyst and real estate appraiser.

At the time of the final hearing, both parties each possessed well over $200,000 in assets. The parties’ financial affidavits, however, reveal a substantial disparity in incomes. While appellee generates income, including two government pensions, of approximately $81,000 a year, appellant derives only $15,000 a year from the investment of her cash and the dividends from her stock. Moreover, appellant’s investment income fails to cover her living expenses.

We think these circumstances demonstrate the need of appellant for and the ability of appellee to provide permanent periodic alimony. We realize, of course, that appellant has other assets of significant value, but the law does not require her to deplete those assets to maintain the standard of living she enjoyed while married. De Cenzo v. De Cenzo, 433 So.2d 1316 (Fla. 3d DCA 1983); Holley v. Holley, 380 So.2d 1098 (Fla. 2d DCA 1980); Gordon v. Gordon, 204 So.2d 734 (Fla. 3d DCA 1967).

Accordingly, we remand the cause to the trial court for an award of permanent periodic alimony in an amount the trial court determines necessary. Additionally, the trial court should reserve jurisdiction to allow either party to petition the court for modification of the award. The final judgment of dissolution is otherwise affirmed.

CAMPBELL, A.C.J., and SCHOON-OVER, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.


text:
    Joel Don ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 84-1848.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1985.
   PER CURIAM.

Appellant Joel Don Adams appeals the summary denial of his Motion to Correct Sentence pursuant to Florida Rule of Criminal Procedure 3.800. He was convicted of armed robbery, kidnapping, sexual battery (three counts), attempted first degree murder, and possession of a firearm by a convicted felon. He sought correction of his sentence because the court retained jurisdiction for one-third of his sentence (a period of 65 years) without stating with individual particularity his justifications for so doing as required by Section 947.16(3)(a), Florida Statutes. The trial judge denied the appellant’s motion on the basis that he had previously denied a motion to correct illegal sentence and that this court had decided this issue in affirming the judgment and sentence on February 17, 1984. Adams v. State, 447 So.2d 1357 (Fla. 2d DCA 1984). We affirm.

The appellant contested the legality of his sentence in this appeal and in two previous Rule 3.800 motions in the trial court. Although neither the trial judge nor this court has ever considered the illegality of the court’s retaining jurisdiction over the defendant without stating the justification with individual particularity, the appellant could have raised this issue on direct appeal. He is now precluded from raising this issue via a Rule 3.800 motion. Pedroso v. State, 420 So.2d 908 (Fla. 2d DCA 1982). See also State v. Snow, 462 So.2d 455 (Fla.1985).

The trial court’s denial of the Rule 3.800 motion is therefore affirmed.

SCHEB, A.C.J., and OTT and DANAHY, JJ., concur.


text:
    Allen Eugene BARTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 84-2481.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1985.
   SCHEB, Acting Chief Judge.

This appeal is from the trial court’s summary denial of a motion seeking post-conviction relief under Florida Rule of Criminal Procedure 3.850.

Defendant pled nolo contendere to charges of robbery and possession of a firearm in the commission of a felony. He was sentenced to two concurrent five-year terms of imprisonment. He alleges that his plea was unlawfully induced or not made voluntarily with an understanding of the consequences of his plea. The supporting facts in his motion allege that the terms of his plea bargain were not complied with. Defendant’s allegation, if true, would entitle him to relief. The trial court, however, failed to conduct an evidentiary hearing or attach relevant portions of the record which refute the allegation as required by rule 3.850.

Accordingly, we reverse the trial court's denial of defendant’s motion and remand the case to the trial court. On remand the trial court may either again summarily deny the motion and attach to its order those portions of the record which conclusively refute defendant’s allegation or hold an evidentiary hearing and then rule on defendant’s motion. See Fla.R. Crim.P. 3.850. See also Gurchick v. State, 428 So.2d 738 (Fla. 2d DCA 1983); Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982). To obtain further review defendant must appeal the new ruling of the trial court.

LEHAN and FRANK, JJ., concur.


text:
    James Robert WHELAN and Airport Rent-A-Car, Inc., Appellants, v. Mae W. ROBERTS, Appellee.
    No. 84-1706.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1985.
    John M. Camillo of Margaman & Camillo, Fort Lauderdale, for appellants.
    Mark J. Leeds of Thomas & Pearl, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed on the authority of Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976), and Keener v. Dunning, 238 So.2d 113 (Fla. 4th DCA 1970). This cause is remanded for an award of costs pursuant to Rule 1.420(d), Florida Rules of Civil Procedure.

REVERSED AND REMANDED.

DOWNEY, HURLEY and BARKETT, JJ., concur.


author: CALOGERO, J., DENNIS, J.,

text:
    Beverly Vicknair, Wife of/and Floyd VICKNAIR v. HIBERNIA BUILDING CORP. & United States Fidelity and Guaranty Co.
    No. 84-C-2114.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Vicknair, Beverly et vir, Vicknair, Floyd, Applying for Writ of Certiorari and/or Review; to the Court of Appeal, Fourth Circuit, No. CA-1473, 459 So.2d 685; Parish of Orleans Civil District Court Div. “A”, No. 77-16405.

Granted. The judgment of the Court of Appeal is vacated and set aside; the case is remanded to the Court of Appeal for decision.

DIXON, C.J., dissents from the order.

CALOGERO, J.,

concurs. Plaintiff sought a rehearing in the Court of Appeal. Defendant sought a rehearing in the Court of Appeal. The Court of Appeal granted a rehearing, but not timely. This action by this Court accords with the desires of the parties and the Court of Appeal. Were that not the case I would simply grant the writ.

DENNIS, J.,

dissents and would deny the application for the reasons noted by him in 84-C-2123.


author: LEMMON, Justice,

text:
    STATE of Louisiana v. David S. ODELL.
    No. 84-KA-0921.
    Supreme Court of Louisiana.
    Feb. 1, 1985.
    For majority opinion of the Court, see La., 458 So.2d 1304.
   LEMMON, Justice,

dissenting.

The majority takes the position that the sentencing limitation of La.R.S. 13:2501.1(J) (and, by implication, of La.C.Cr.P. Art. 493.1) applies only when the district attorney chooses to charge a series of related misdemeanors in a single bill of information or affidavit and not when the defendant consolidates joinable misdemeanors which were charged in separate documents. Under this position, the district attorney has the option either (1) to charge related misdemeanors in a single document, thereby limiting defendant’s sentencing exposure to six months and avoiding a jury trial, or (2) to charge joinable misdemeanors in separate documents, thereby continuing defendant’s sentencing exposure at the combined total of the statutory maximum penalties specified for each offense. The district attorney, by choosing the first option, gives up the greater sentencing exposure but avoids a jury trial. If the district attorney chooses the second option, the defendant may consolidate the joinable misdemeanors and thereby secure a jury trial, but his penalty exposure is not reduced. Since the choice rests solely with the district attorney, the defendant cannot utilize the statute to secure the benefit of limited sentencing exposure.

I disagree with the majority’s position both on the basis of statutory interpretation and on the basis of basic fairness to the defendant. The intent of the Legislature was to limit the sentencing exposure of a defendant charged with several joina-ble misdemeanors and thereby permit the trial of multiple non-serious offenses in a single proceeding without a jury. The purpose was to obviate the need for a jury trial by limiting sentencing exposure for misdemeanors properly tried in a single proceeding, whether the limitation resulted from the district attorney’s initial charging decision or from the granting of a defense motion to consolidate. The statute should be interpreted in accordance with this intent and purpose, and the sentencing limitation should also be applied when the defendant properly consolidates the offenses for trial.

This statutory construction also accords with principles of fundamental fairness. If the district attorney can utilize the statute to join several misdemeanors so as to avoid a jury trial, the defendant must in fairness be allowed to consolidate joinable misdemeanors so as to secure the sentencing limitation afforded by the statute (although application of the statute would preclude a jury).

I would hold the statute constitutional, but would further hold that the trial court’s action in granting defendant’s motion to consolidate had the same effect of reducing the penalty exposure as though the offenses had initially been charged in a single affidavit. Therefore, defendant was not entitled to a trial by jury, and the traffic court did not lack jurisdiction to try the case. I would affirm the denial of the motion to quash.

      . Once the offenses have been consolidated for trial upon motion of the defendant, the procedure thereafter shall be the same as if the prosecution were under a single indictment. La.C. Cr.P. Art. 706.

      . This construction also comports with the statutory and jurisprudential position that concurrent (as opposed to consecutive) sentences should normally be imposed in cases of multiple offenses (particularly non-serious offenses) arising from a common scheme or from the same act or transaction. See La.C.Cr.P. Art. 883; State v. Underwood, 353 So.2d 1013 (La.1977); State v. Cox, 369 So.2d 118 (La.1979). As this court stated in Cox:

      "As we stated in State v. Underwood, 353 So.2d 1013, 1019 (La.1977), ‘Based on American theory and practice concurrent rather than consecutive sentences are the usual rule, at least for a defendant without criminal record and in the absence of a showing that the public safety requires a longer sentence.’ We there noted that one reason advanced to permit joinder and trial of two or more offenses, at the same time was to facilitate the imposition of concurrent rather than consecutive sentences. 353 So.2d 1019 (footnote 6).
      “See: American Bar Association Standards Relating to Sentencing Alternatives and Procedures, Standard 3.4 (1968); American Law Institute Model Penal Code, Section 7.06 (1962); National Advisory Commission on Criminal Justice Standards and Goals, Corrections Standard 5.6; National Council on Crime and Delinquency, Model Sentencing Act 2d, Section 17 (1972), reprinted at 18 Crime and Delinquency 335 at 367 (1972); and official commentaries following each such statement of sentencing principle.
      "These standards contemplate the normal imposition of concurrent standards, with consecutive sentences to be imposed only under certain circumscribed conditions. As succinctly summarized by Commentary c, Standard 3.4 ABA Standards Relating to Sentencing Alternatives and Procedures, at p. 177 (Approved Draft, 1968):
      “ 'The function of the consecutive sentence should be similar to the function of the sentence imposed on habitual or dangerous offenders. Because of his repeated criminality the offender who has rendered himself subject to multiple sentences may pose the same type of unusual risk of the safety of the public. It would thus appear that he should be treated in a similar fashion.'” (Emphasis supplied.) 369 So.2d at 123-24.
      The effect of joinder or consolidation of non-jury triable misdemeanors is thus essentially the same as requiring concurrent sentences in such cases. That is, the maximum total sentencing exposure for several offenses committed in the same occurrence or transaction is the same as that provided for any one of the offenses.
      La.C.Cr.P. Art. 493.1 and La.R.S. 13:2501.1 deal with the joinder (and, I believe, consolidation) only of non-felonious offenses. Therefore, it is logical to assume that the Legislature intended to limit statutorily the penalty exposure in order to avoid a jury trial for these kinds of cases, since under the jurisprudence (and practice) the likelihood of concurrent sentences was very high even if the cases were prosecuted separately.

      .Although the Louisiana Constitution does not itself deprive city, parish, municipal and traffic courts of jurisdiction to try misdemeanor offenses which, because of the penalty exposure, require a jury trial under La. Const. Art. I § 17 (1974), the statutes defining the jurisdiction of those courts may limit them to the trial of non-jury triable misdemeanor offenses. The Constitution only requires that felony cases be tried in district court, La. Const. Art. V § 16 (1974), but statutes creating the lower courts may not provide for jury trials of non-felony offenses, and those courts are thereby deprived legislatively of the authority to try misdemeanor cases requiring trial by jury.
      It would be anomalous for the Legislature to design a situation whereby a defendant could effectively defeat the authority of the court to try him by moving to consolidate. It is more reasonable to assume that the provisions of La. R.S. 13:2501.1(J) and La.C.Cr.P. Art. 493.1 were designed to eliminate the need for jury trials by limiting penalty exposure whenever the offenses are to be tried in a single proceeding, thereby permitting the various city, municipal, parish and traffic courts to continue to handle cases of multiple joinable misdemeanor offenses.


author: CALOGERO, J.,

text:
    Frances May Bua LOCOCO v. Dr. Santo J. LOCOCO.
    No. 85-C-0062.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Lococo, Santo J. Dr., Applying for Writ of Certiorari and/or Review; to the Court of Appeal, Fourth Circuit, Number CA-1796; Parish of Orleans, Civil District Court, Div. “D”, Number 83-10422.

Prior report: 462 So.2d 893.

Denied.

CALOGERO, J.,

concurs in the denial being in agreement with Judge Redmann’s concurring opinion in the Court of Appeal.

DIXON, C.J., and DENNIS, J., would grant the writ.


author: BOWES, Judge.

text:
    James P. McNAMARA v. Kenneth A. KUEBEL.
    No. 84-CA-187.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.
    Rehearing Denied Feb. 20, 1985.
    Writ Denied April 12, 1985.
    Edward J. Armbruster, III, Baldwin & Haspel, New Orleans, for plaintiff-appellant.
    Frank A. Tessier, Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, for defendant-appellee.
    Before KLIEBERT, BOWES and CUR-RAULT, JJ.
   BOWES, Judge.

Plaintiff has appealed a ruling of the District Court granting summary judgment in favor of the defendant. We affirm in part, reverse in part, and remand, as follows hereinafter.

James McNamara, a licensed real estate salesman, joined the staff of Kenneth A. Kuebel Real Estate in March, 1980. He was a salaried employee who handled property management functions. On July 10, 1980, Kuebel wrote to the Louisiana Real Estate Commission, apparently at McNamara’s request, requesting that plaintiff’s license be transferred to Kenneth A. Kue-bel Real Estate Company (in accordance with La.R.S. 37:1441, infra). The requested transfer fee of $25.00 accompanied the letter.

The license itself, for reasons not ascertainable from the record before us, was not transferred until December 23, 1980. McNamara asserts that he was unaware that his license had not been transferred as of July. Kuebel, as sponsoring broker, held McNamara’s license until February 26, 1981, when plaintiff left defendant’s employ.

The instant lawsuit involves a claim for commissions allegedly due to McNamara from leases which plaintiff claims to have negotiated while an employee of Kuebel. McNamara claims that he regularly earned commissions, that Kuebel had previously paid him these commissions, and that Kue-bel arbitrarily ceased these payments, necessitating the institution of this lawsuit.

Kuebel claims that he occasionally paid McNamara bonuses, that he paid him a commission on only one, or possibly two, leases, and that there was no written agreement obligating him to pay commissions. Kuebel further filed a reconventional demand for certain monies advanced to plaintiff and for payment of a real estate commission on a sale of land to a partnership in which McNamara owns an interest.

In the motion for summary judgment, Kuebel’s affidavit alleged that the leases from which McNamara claims a commission were executed either before December 23, 1980, or after plaintiff ceased working for defendant. McNamara did not present evidence to dispute those dates, stating instead that he did not retain a copy of the leases and had no documentary evidence as to their dates. Attached to the motion for summary judgment was a letter from the Louisiana Real Estate Commission certifying that McNamara was a licensed salesperson during the following periods: March 14, 1978 — January 19, 1979; May 10, 1979 — June 13, 1979; June 21, 1979— April 7, 1980; and December 23, 1980— February 26, 1981. The basis for the motion was La.R.S. 37:1445:

§ 1445. Unlicensed persons cannot recover brokerage charges
No action or suit shall be instituted, nor recovery be had, in any court of this state by any person for compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provisions of this Chapter, to other licensed brokers or licensed salesmen unless such person was duly licensed under this Chapter as a broker or salesman prior to the time of offering to perform any such act or service or procuring any promise to contract for the payment of compensation for any such contemplated act or service.

The trial court found that on July 10, 1980, the date of Kuebel’s letter to the commission, that McNamara was not licensed and, therefore, there was no license to transfer; that McNamara was not licensed on any of the dates of the leases save for one, the General Electric lease; and that as to that lease, McNamara was not employed by Kuebel when the lease was confected. Applying 37:1445, the court found that an unlicensed person cannot recover the relief sought by the plaintiff and dismissed his suit.

On appeal, plaintiff alleges that defendant should be estopped from denying that he, McNamara, was a licensed real estate agent, that he should be allowed to recover a commission with respect to a lease executed after leaving Kuebel’s employ, and that the summary judgment should be reversed.

La.R.S. 37:1441 states:
§ 1441. Return of license, transfer, termination
A. When any associate broker or salesman shall terminate his association with a broker by whom he is sponsored, the sponsoring broker shall within five days of receiving such notification, hand deliver or send by registered or certified mail to the commission the associate broker or salesman’s license. No associate broker or salesman shall act as such, either directly or indirectly, under authority of such license after the date the license has been dispatched to the commission. Such associate broker or salesman, upon acceptance of sponsorship by another licensed broker, shall be entitled to transfer the license upon written request and payment of the required fee, but not more than one license shall be issued to any associate broker or salesman for the same period of time. Whenever the commission, under the provisions of this Chapter, is entitled to suspend or revoke an associate broker or salesman’s license or whenever an application for transfer has been filed, the commission or its duly authorized representative may demand that the sponsoring broker immediately deliver to the commission the license of any associate broker or salesman, and the sponsoring broker shall comply with such demand, (emphasis supplied)

We interpret the above-quoted laws to mean that a person may obtain a valid real estate sales license, but is unable to act in the capacity of a “real estate salesperson” absent a sponsoring broker. That is, a salesperson may act as such only when his license is in the possession of a sponsoring broker, and not when it is in the hands of the commission. Therefore, under 1445, no recovery for compensation may be had by a real estate salesperson not sponsored by a broker at the time the fee is claimed — such is the meaning of the phrase “duly licensed under this Chapter.”

However, Kuebel knew or should have known that the license had not been transferred to him between July and December. Yet the record is devoid, of any indication that Kuebel informed McNamara of the true situation; rather, it is obvious that Kuebel continued to employ McNamara in the dual capacity of supervisor and agent. Kuebel therefore derived an advantage from having McNamara act in the capacity of agent, without the corresponding obligation to recompense, because of the technical application of law. While we emphasize that our application of law above is correct, we cannot in equity hold that Kuebel could have employed McNamara to act as agent and yet be immune to payment of compensation for those services. Such a concept violates the principle of Civil Code Article 1965 prohibiting unjust enrichment.

There is no evidence in the record to support the trial judge’s conclusion that there was no license to transfer; and if there was a license to transfer, there are many questions to be answered concerning it, such as why it was not routinely transferred to Kuebel, what part Kuebel played in this, whether he should have done something to remedy this situation or at least notify McNamara that such transfer had not been accomplished, and whether McNamara was to be paid by Kuebel solely as a salaried employee, or as a combination of salaried employee and commissioned salesman. These are all questions of material fact which preclude disposition of this case by summary judgment. The cases to this effect are legion.

Accordingly, since McNamara’s petition seeks damages as well as commissions, McNamara has stated a cause of action in equity or damages, which must be tried on the merits on that issue and related ones stated in this opinion.

For the foregoing reasons, the decision of the trial court is reversed in part and amended to state that the portion of plaintiff’s suit for commissions is dismissed and that the portion of the suit which states a cause of action in damages is remanded to the trial court for further proceedings. Costs of the appeal are taxed to each party.

REVERSED IN PART, AMENDED AND REMANDED.


author: KLEES, Judge. REDMANN, Chief Judge,

text:
    Frances May Bua LOCOCO v. Dr. Santo J. LOCOCO.
    No. CA-1796.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 1984.

      Trudy H. Oppenheim, P.C., New Orleans, for plaintiff-appellant Frances May Bua Lococo.
    Frederick J. Gisevius, Jr., Jane M. Gisevi-us, Law Office Frederick J. Gisevius, Jr., New Orleans, for defendant-appellee Dr. Santo J. Lococo.
    Before REDMANN, C.J., and KLEES and WILLIAMS, JJ.
   KLEES, Judge.

The plaintiff, Frances May Bua Lococo, filed suit against her former husband, Dr. Santo J. Lococo, alleging a breach of his fiduciary duty to maintain and preserve certain community properties under his exclusive management and control during the period of time between the termination of the community and the actual partition of the former community. The plaintiff was awarded the properties in question by virtue of a judgment partitioning the community property. The defendant filed exceptions of res judicata and prescription, which were sustained by the trial court. The plaintiff appeals the judgment dismissing her suit on the pleas of prescription and res judicata. The issues on appeal are 1) whether the prescriptive period of C.C. Art. 2369 is applicable to bar plaintiff’s suit, and 2) whether this suit has the same object as the partition proceeding, thereby rendering it res judicata.

The plaintiff and the defendant were separated after many years of marriage on August 8, 1978, at which time the plaintiff filed a petition for separation. The defendant managed the considerable community assets subsequent to that time and up until the judicial partition of the community assets. The judgment of separation was rendered on March 24, 1980, thereby terminating the community retroactive to the date of the filing of the original petition. C.C. Art. 155. The judgment partitioning the assets of the former community was rendered on November 4, 1982 after a trial on the merits. The plaintiff now alleges that after accepting her part of the community assets, she discovered that certain properties were in a state of disrepair and taxes were left unpaid during the years that the defendant managed the property.

We do not believe that C.C. Art. 2369 has any application in this case, nor after much research into the legislative history of Act. 790 of 1979 have we been able to determine exactly in what situation C.C. Art. 2369 applies. Once the community of acquets and gains was terminated by, in this case, judgment of separation from bed and board, the defendant and plaintiff became co-owners in indivisión of those assets formerly belonging to the community. Either party then had an absolute right to demand a partition of the property. C.C. Arts. 1289 and 1308. The action of partition is not subject to an exception of libera-tive prescription. See Rasbury v. Baudier, 370 So.2d 659 (La.App. 4th Cir.1979) and Nix v. Nix, 385 So.2d 503 (La.App. 1st Cir.1980). If C.C. Art. 2369 is to have any application to this case, it must be presumed that its authors intended for a spouse having control of community property at the termination of a community property regime to occupy the position of a co-owner under the general law of property. Thus, a spouse ought to be accountable for any loss or deterioration of the things under his or her control attributed to his or her fault and for the fruits produced by the things since the termination of the community property regime. LSA-C.C. 2369 Comment (e).

As a co-owner of the property, if the defendant undertook the task of managing the “affairs of others” (the one-half interest in the properties belonging to the plaintiff as co-owner) when he managed the properties from the time of separation until the partition with the tacit approval of the plaintiff, the defendant would owe a fiduciary obligation to the plaintiff based upon the principle of negotiorum gestio. LSA-C.C. 2295. The duty owed by a negotio-rum gestor is that a prudent administrator. LSA-C.C. 2298. Any serious deterioration of the properties under his management, absent a sufficient explanation of the causation thereof, indicates a breach of that fiduciary duty. Thus, the defendant would have to account to and compensate the plaintiff for losses or damages incurred due to his mismanagement or negligence. Beavers v. Stephens, 341 So.2d 1278 (La.App. 3rd Cir.1977); Smith v. Succession of Smith, 298 So.2d 146 (La.App. 1st Cir.1974).

A suit for breach of fiduciary duty is a personal action subject to liberative prescription of ten years. LSA-C.C. 3499. Therefore, plaintiff has brought her suit well within the ten year prescriptive period. The exception of prescription should have been denied by the trial court.

The next question is then whether the relief prayed for by the plaintiff is an issue that was dealt with in the judicial partition conducted in accordance with La.R.S. 9:2801. We think not.

The exception of res judicata is applicable only when there is (1) an identity of the parties, (2) an identity of the cause of action, and (3) an identity of the thing demanded. LSA-C.C. 2286. Slocum v. Daigre, 424 So.2d 1074 (La.App. 3rd Cir.1982); Barnette v. Develle, 289 So.2d 129 (La.1974); Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978); Mitchell v. Bertolla, 340 So.2d 287 (La.1976); Sewell v. Argonaut Southwest Insurance Co., 362 So.2d 758 (La.1978).

It can be argued that there is an identity of the thing demanded in that in the prior case the property was valued and then partitioned and now plaintiff seems to want to have the value changed. Judgment was rendered whereby the property was divided between the plaintiff and the defendant with certain values put on the property which plaintiff accepted. However, the cause was not the same in the prior suit as in the present suit. In the present case, the plaintiff is contending that the negligence or mismanagement of the properties from the time of separation until the partition by the defendant caused the loss. There was no such issue presented in the first case.

We find after careful review of the record there is an identity of parties but there is no identity of cause or of the thing demanded. Therefore, the exception of res judicata should have been overruled.

Accordingly, for the foregoing reasons, the judgment on the exceptions of prescription and res judicata is reversed and the case remanded for a trial on the merits. Costs are to be borne by defendant/appel-lee.

REVERSED AND REMANDED.

REDMANN, C.J., concurs.

REDMANN, Chief Judge,

concurring.

I subscribe to the majority’s view that plaintiffs claim is neither prescribed nor a thing adjudged. I would add that the petition fails to state a cause of action, but leave to amend should be granted.

Plaintiff alleges (or suggests) in her petition three kinds of damage she has suffered relative to the immovables she received in the partition of the former community. First, she alleges that she is obliged to spend money to repair physical deterioration of the properties resulting from defendant’s failure to maintain them. Second, she suggests (without expressly alleging) that she has been obliged to spend money to pay unpaid ad valorem taxes that defendant should have paid. Third, she suggests that she is obliged upon the termination of leases to refund to her tenants in the properties damage deposits that defendant collected but “refused to turn over ... and in fact informed plaintiff that he has used ... for ... taxes, repairs and similar items.”

Plaintiff’s claims thus all relate to, and arise out of the partition of, the formerly co-owned property.

A full accounting at the time of the partition should have noted unpaid real estate taxes and liability for damage deposits, and would have made some provision regarding them as debts in common. If the partition neglected to treat these items, it may be that plaintiff has a cause of action against defendant for contribution of half of, or for supplemental partition of, the unpartitioned debts in common. (See C.C. 2103, 2161, 1384, 1394, etc.) But plaintiff’s petition does not, in its present form, state such a cause of action because it does not allege that the accounting did not account for those items.

The other element plaintiff claims — deterioration by defendant’s failure to maintain and repair — is also inadequately alleged. The petition does allege that the defendant “insisted that he manage” properties; but I deem that insufficient to allege that the defendant was the only one of the two co-owners who had any right or obligation to maintain the property — a duty to the plaintiff to attend to the physical repair and maintenance of their common property. And the petition alleges deterioration because of mere failure by the ex-husband to repair and maintain, rather than because of deliberate or negligent damage by him. That states no claim because failure to spend rent money on maintenance and repairs means more money divided between the former co-owners in the partition. In the absence of allegation of special consequential damage, the value of the property not properly maintained is equal to the value of the property not properly maintained plus the cost of proper maintenance. The petition thus does not allege facts from which one could conclude that defendant’s failure to maintain caused destruction of a value greater than the saving in unspent maintenance costs.

I therefore concur in overruling the exceptions of prescription and res judicata, but would supply and maintain an exception of no cause of action with leave to amend.


author: GUIDRY, Judge.

text:
    Patricia Lee Gardner MORGAN, Plaintiff-Appellant, v. Bob Wilson MORGAN, Jr., Defendant-Appellee.
    No. 84-27.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Harrington & Harrington, Eric R. Harrington, Natchitoches, for plaintiff-appellant.
    William R. Boone, Many, for defendant-appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   GUIDRY, Judge.

This is a suit for separation, based upon abandonment and cruel treatment, and for alimony pendente lite, filed by Patricia Lee Gardner Morgan, against Bob Wilson Morgan, Jr. The defendant reconvened, alleging cruel treatment on the part of the plaintiff in causing the separation. On November 29, 1983, the trial court granted the separation based upon the fault of both parties. Plaintiff was granted $250.00 per month alimony pendente lite. Plaintiff appeals.

The parties were married in 1965 in Oklahoma. In 1972, using funds acquired from the defendant’s work as a long-haul truck driver, they purchased “Old Yeller Marina” near Zwolle, Louisiana. Marital discord, comprised of arguments and mutual recriminations, commenced prior to their moving to Louisiana and continued until their ultimate separation. This disharmony was exacerbated by strained relations between the defendant and the plaintiff's son. In 1980, Bob was forced to return to the long-haul trucking business, since the marina was not sufficiently profitable to ensure a comfortable living. To this end, he purchased a truck and trailer rig. At about this same time, Bob learned that he had prostate cancer, which required surgery and continued treatment. Patricia served as business manager throughout the course of the marriage, and, in addition, managed the marina. On March 6, 1983, defendant left the marital domicile at the marina with a declared intent never to return.

ISSUES

(1) Appellant contends that the trial court erred in assigning fault to both parties; she contends that the fault was assignable solely to the defendant-appellee.

(2) Appellant contends that the trial court’s award of $250.00 per month alimony pendente lite was insufficient based upon the extent of her need and the defendant-appellee’s ability to pay.

TRIAL COURT’S DETERMINATION OF FAULT

The parties’ testimony at trial with regard to the issue of fault was contradictory in many respects. Patricia testified that Bob abandoned her on March 6, 1983, and that she gave him absolutely no cause to do so. She stated that when he came home from his frequent road trips, he refused to speak to her, refused to give her presents on her birthday or on Christmas, and refused to go on vacations which she had planned for them. She further stated that he humiliated her publicly, would not get along with her son, and refused to take her to see her son when he was hospitalized in Texas.

Conversely, Bob testified that he was fully justified in leaving the marital domicile without intent to return, since Patricia had refused to have sexual relations with him since 1979. He denied that he humiliated her publicly, and attributed his poor relationship with her son to his disobedience of parental authority.

Patricia categorically denied withholding sexual relations from Bob and attributed the lack of sexual relations to his impotence occasioned by his prostate cancer. Bob asserted that the decline in their sexual relations began long before his prostate condition arose and denied that this condition caused him to be impotent.

The trial court held that both parties were mutually at fault.

La.C.C. Arts. 138 and 141 state, inter alia:

“Art. 138. Separation from bed and board may be claimed reciprocally for the following causes: ... (3) on account of ... cruel treatment, or outrages of one of them towards the other, if such ... ill treatment is of such a nature as to render their living together insupportable
Art. 141. A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation....”

For a separation based upon mutual fault, the fault of each party must be sufficient, standing alone, to award the other spouse a separation. Langton v. Langton, 442 So.2d 1308 (La.App. 3rd Cir.1983); Watson v. Watson, 442 So.2d 1310 (La.App. 3rd Cir.1983), writ denied, 445 So.2d 450 (La.1984). In addition, the fault must be an independent contributing cause of the separation. Watson v. Watson, supra. Denial of sexual intercourse to one’s spouse, unjustifiably and persistently, constitutes ill treatment within the meaning of La.C.C. Art. 138 and is a legal ground for separation. Taddonio v. Kinney-Taddonio, 428 So.2d 486 (La.App. 4th Cir.1983).

On the issue of fault, the trial judge stated as follows in his written reasons for judgment:

“Constant arguments were chronic between them for some time.
On occasion Mr. Morgan would complete a truck run and arrive back at his base in Lone Star, Texas, and call Mrs. Morgan to come get him. She refused to do this on 3 or 4 occasions and he would remain in Lone Star, sleeping in his truck, until the next trip. This caused needless separations. She was constantly critical of him when they were together. He was also critical of her. He testified that she refused to engage in marital relations with him since October, 1982.
The situation was intolerable for both. Mr. Morgan abandoned her on December 19, 1982, and has not returned.
The facts support that the conduct of each would entitle the other to a legal separation, and accordingly, the Court finds mutual fault.”

We have carefully considered the evidence in this case in light of the rule of appellate review set forth in Canter v. Koehring Company, 283 So.2d 716 (La.1973), and conclude that the trial court did not clearly err in its grant of a separation on the ground of mutual fault.

ALIMONY PENDENTE LITE

The trial court awarded alimony to plaintiff in the sum of $250.00 per month. Plaintiff-appellant contends that the award is insufficient.

The record reflects that Patricia is in control and possession of the Old Yeller Marina, which is free of any liens or mortgages. The marina is not too profitable but it does provide a home and some support for Patricia. In addition, Patricia has some savings and possession and control of a $10,000.00 certificate of deposit. Bob is a long-haul truck driver who owns and operates his own truck. Normally, he clears $1000.00 per month after expenses, which include food and lodging. However, in 1983, he suffered a net loss of some $15,-000.00 due to a plethora of maintenance problems with the truck. He incurs heavy maintenance, repair, fuel, and truck note expenses. Bob also owns a one-half interest in 80 acres of land in Oklahoma, which, in 1982-1983, generated some $2500.00 in mineral royalties, and he owns another mineral interest which generates $100.00 per year royalties. Bob regularly incurs medical expenses as a result of his prostate cancer and other health problems.

La.C.C. Art. 148 states:

“If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.”

Alimony pendente lite is a duty of support one spouse owes the other stemming from the contract of marriage. Arceneaux v. Arceneaux, 426 So.2d 745 (La.App. 3rd Cir.1983). The spouse is entitled to be maintained in the manner accustomed during marriage if the other spouse has the means. The trial court is vested with much discretion in fixing alimony pendente lite, and its determination will not be disturbed absent a clear abuse of this discretion.

In the instant case, it is clear that neither party is in a particularly sound financial condition. The defendant is struggling to keep his business afloat, and any further financial burden would appear unreasonable. While the marina is not too profitable, it, at least, provides Patricia with a home and a reasonably consistent source of income. Under the present award, the financial support provided by the defendant to the plaintiff appears to be the same as before the separation. The award appears to be reasonable. Cf. Harrington v. Campbell, 413 So.2d 297 (La.App. 3rd Cir.1982). No abuse of discretion by the trial court is apparent.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs are assigned to the plaintiff-appellant.

AFFIRMED.


author: PRATHER, Justice, for the Court:

text:
    Robert PAYNE v. STATE of Mississippi.
    No. 54904.
    Supreme Court of Mississippi.
    Nov. 7, 1984.

      John T. Cotter, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PRATHER, Justice, for the Court:

The constitutionality of sentence is challenged by this appeal from the Jackson County Circuit Court. Robert Payne was convicted of possession of a controlled substance, marijuana, with intent to distribute, and sentenced to seven years in the Mississippi Department of Corrections of which two years would be suspended upon payment of a $3,000.00 fine.

Payne assigns as error:

(1) the trial court’s refusal to grant a mistrial for a reference during his trial to another publicized crime in the community, and

(2) the unconstitutionality of his sentence under Mississippi Constitution, Article 3, Section 30.

I.

Should a mistrial have been declared for a witness’s reference during testimony to another publicized crime within the community?

The question arose during the cross-examination by defense counsel of the narcotics officer of the Jackson County Sheriff’s office. The officer testified that he entered the defendant’s apartment by permission of the cotenant, Glenda Wiggins. After she advised him the defendant was asleep in the bedroom, the officers awakened the defendant who was not fully clothed. The defendant’s pants were picked up by the officer, and the pockets were searched to determine if the pants contained a weapon. The following colloquy between defense counsel and narcotics officer ensued:

Q. Could he have lunged for his pants and pulled a gun out of them?
A. Yes sir, that’s possible that he could have.
Q. How many police were standing next to him when you went through his pants?
A. What if I hadn’t gone through his pants, handed them back to him and he had had a weapon in there? You don’t need another thing like Glen Rivers happening here.
BY MR. COTTER: Your Honor, I have to move for a mistrial on that. That’s totally irrelevant and has no bearing whatsoever on this case and if that’s not grounds for — I have to move for a mistrial.
BY MR. GUIROLA: Your Honor, the question was larged (sic) argumentative and he got the answer that ... He just got his hook caught.
BY MR. COTTER: Your Honor ...
BY THE COURT: Just a minute. There has been mention of some incident. There hasn’t been any details about what that incident is. At this time I’m going to tell the jury to disregard the last statement by the witness, it has nothing to do with this particular case. You will totally disregard it from this point on and certainly during any deliberations by the jury.
BY MR. COTTER: Your Honor, once again though, for the record, I want to move for a mistrial.
BY THE COURT: Motion for a mistrial will be overruled. Proceed.

The remark to which an objection was made is solely the words “Glen Rivers.”

The trial judge stopped the proceedings, and he specifically instructed the jury to disregard the statement. Nothing more about Glen Rivers was mentioned during the trial.

However, the defendant in his brief explains that Glen Rivers refers to the name of a police officer who was shot by a black male accused of selling marijuana, an incident which received an abundance of press publicity.

This Court has held that a criminal trial shall be single and of one offense, and the prosecution cannot aid the proof by showing that the defendant committed other crimes. Harrington v. State, 336 So.2d 721 (Miss.1976). The rule does have exceptions. See Younger v. State, 301 So.2d 300 (Miss.1974); Hosey v. State, 300 So.2d 453 (Miss.1974); Clanton v. State, 242 Miss. 734, 137 So.2d 180 (1962).

However, it is not clear from this record whether or not this defendant was involved in the “Glen Rivers” incident. We don’t have to resolve this question, however, because of the trial judge’s remedial remarks to the jury.

There is an abundance of case law stating that it is presumed that jurors follow the instructions of the court. Whitlock v. State, 419 So.2d 200 (Miss.1982); Evans v. State, 422 So.2d 737 (Miss.1982); Edwards v. State, 413 So.2d 1007 (Miss.1982); Holifield v. State, 275 So.2d 851 (Miss.1973). We therefore conclude that the admonitions of the trial judge were adequate to remove any prejudicial effects from the jury’s minds. Carrol v. State, 391 So.2d 1000 (Miss.1980).

There was no reversible error in the trial judge’s handling of this procedural matter to insure Payne’s receiving a fair and impartial trial.

II A.

Was the sentence imposed constitutionally invalid under the Mississippi Constitution, Article 3, Section 30 which states that “(t)here shall be no imprisonment for debt.”

The crime for which the defendant was indicted, tried and convicted, possession of a controlled substance with intent to distribute, carries a maximum sentence of imprisonment for not more than twenty (20) years, or fine not more than thirty thousand ($30,000) or both. Mississippi Code Annotated section 41-29-139(b)(2) (1972) (Supp.1984). Payne’s sentence was to “serve seven (7) years in the Mississippi Department of Corrections of which two (2) years is suspended upon condition that fine of $3,000.00 is paid ...”

The defendant’s assertion here is that an imprisonment for a fine is tantamount to imprisonment for a debt in violation of Article 3, Section 30 of the Mississippi Constitution. This position is merit-less as the constitutional section does not extend to a pecuniary obligation imposed by the state as a punishment for crime. The constitution is a prohibition of imprisonment for a personal obligation from one person to another, other than civil contempt of court. Ex Parte Diggs, 86 Miss. 597, 38 So. 730 (Miss.1905).

II B.

We are compelled, nonetheless, to remand this ease for resentencing due to plain error in the sentencing order. Mississippi Supreme Court Rule 6(b); Glover v. State, 419 So.2d 588 (Miss.1982); Burnett v. State, 285 So.2d 783 (Miss.1973). We address, for the benefit of the bench and bar, two distinct problems with the sentencing order:

(1) Whether the imposition of the additional two year imprisonment upon nonpayment of the fine constitutes an impermissible discrimination against indigents in violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution, and

(2) Whether the partial suspension of the sentence after five (5) years of imprisonment violates the directive of Mississippi Code Annotated section 47-7-33 (1972).

The sentencing order provides that the defendant shall “serve seven (7) years in the Mississippi Department of Corrections of which two (2) years is suspended upon condition that a fine of $3,000.00 is paid....” We have previously held that a court may not first fine a defendant and then, because of his indigency, convert the fine into a jail sentence for failure of the defendant to make immediate payment of the fine. Nelson v. Tullos, 323 So.2d 539 (Miss.1975). The discrimination based upon indigency which we condemned in Nelson is present as well in a sentence which expressly conditions the length of imprisonment upon the ability to make immediate payment of a fine. Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Frazier v. Jordan, 457 F.2d 726 (5th Cir.1972). In furtherance of this same principle, our statutory authority in Mississippi Code Annotated section 99-19-20(2) expressly provides that a defendant “shall not be imprisoned if the defendant is financially unable to pay a fine and so states to the court in writing, under oath, after sentence is pronounced, and the court so finds....” Therefore, attention is called to an equal protection challenge in sentencing.

The record, however, does not reflect that Payne is in fact indigent; nor does it reflect that the sentencing court was aware of any alleged indigency. We, therefore, conclude that the equal protection question is premature. Harris v. United States, 440 F.2d 240 (D.C.Cir.1971). If an indigency situation is involved, Mississippi Code Annotated section 99-19-20(2) (Supp.1983) sets forth procedure to request installment payments where warranted.

II C.

Additionally, this imposed sentence attempts to permit suspension of two years of the term upon payment of a fine of $3,000.00. The pertinent statute which lists the alternatives available to a court when a fine is imposed provides:

When any court sentences a defendant to pay a fine, the court may order (a) that the fine be paid immediately, or (b) that the fine be paid in installments to the clerk of said court or to the judge, if there be no clerk, or (c) that payment of the fine be a condition of probation, or (d) that the defendant be required to work on public property for public benefit under the direction of the sheriff for a specific number of hours, or (e) any combination of the above.

Mississippi Code Annotated section 99-19-20(1) (Supp.1983). Under this authority a court may impose a fine to be paid immediately or in installments, but no alternative is given to condition a lesser term on payment of a fine.

Another statute is also applicable here which provides that any circuit or county court, after conviction or a plea of guilty, (except in certain stated cases) shall have the power “to suspend the imposition or execution of sentence, and place the defendant on probation ..., except that the court shall not suspend the execution of sentence of imprisonment after the defendant shall have begun to serve such sentence. Mississippi Code Annotated section 47-7-33 (1972). (Emphasis added). A circuit court has no authority nor jurisdiction to suspend the execution of a sentence of confinement after it has been affirmed by this Court. See Denton v. Maples, 394 So.2d 895 (Miss.1981).

Implicit in a reading of both of these statutory sections is the obvious interpretation that a sentence must be made definite at the time of imposition. This sentence is not definite. It seeks to allow a court to suspend sentence at any time prior to completion of the term, in violation of Mississippi Code Annotated section 47-7-33 (1972). A court must elect at the time of imposition of sentence to simultaneously suspend imposition or execution of the sentence. But a trial court is without authority to suspend a term of two years after the defendant has begun serving the sentence (Mississippi Code Annotated section 47-7-33 (1972)) or after affirmance by this Court. Denton, supra.

We, therefore, reverse this case for reason of an indefinite sentence and remand to the trial court for resentencing. Upon imposition of a definite sentence, the conviction is affirmed.

REMANDED FOR RESENTENCING NOT INCONSISTENT WITH THIS OPINION.

PATTERSON, C.J., and BOWLING, HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.

WALKER and ROY NOBLE LEE, P.JJ., dissent.