author: LE BLANC, Justice.

text:
    216 La. 828
    WIER v. GLASSELL.
    No. 39093.
    Supreme Court of Louisiana.
    Feb. 13, 1950.

      James G. Dubuisson and Edward Dubuis-son, Opelousas, for plaintiff-appellant.
    DeBaillon-, Bailey , & Mouton, Lafayette, for defendant-appellee.
   LE BLANC, Justice.

This is a suit in which the plaintiff, H. J. Wier, seeks to have himself recognized as, and declared to be the owner of a one-sixteenth (1/16) overriding royalty on, in and of all of the oil and gas prodiiced and saved by the defendant, Alfred C. Glassell, Jr., his heirs, transferees and assigns from eleven different tracts of land all situated in the Parish of St. Landry, Louisiana, and fully described in the prayer of his petition.

He alleges that on April 8, 1940, he assigned to the defendant, a resident of the Parish of Caddo, Louisiana, five, and on March 28, 1940, he assigned seven certain oil, gas and mineral leases of which he was the owner, affecting all of the properties covered by the said leases, as fully appears in acts of assignment duly recorded in the Conveyance Records in the Parish of St. Landry, copies of ’which are annexed to his petition; that the terms and conditions are fully set out in the said acts of assignment and that the principal consideration in each was the reservation by himself of an overriding royalty of l/16th of all of the oil and gas produced and saved from the properties, less any oil and gas used and consumed for fuel’and 'power in the development of and in operating the same.

He alleges that the meaning of the language of the clause in which the consideration was expressed, and the intent in using that language ■ was that he, as. assignor, was reserving to himself, and defendant, as assignee, was granting to him a l/16th overriding royalty on and all the oil and gas which might be produced and saved from the properties covered by the leases described in the said assignment, under the said leases, or any other leases which the defendant might take, buy or' procure on the same properties.

Plaintiff avers that the execution date of all of the five leases assigned on April 8, 1940, was March 26, 1940, and as the primary term was five years, their expiration date was March 26, 1945. The execution date of seven leases assigned on March 28, 1940, was March 25, 1940 and as the primary term of the first of these seven leases was three years, its expiration date was March 25, 1943. The primary term of the other six of said leases was five years and their expiration date was therefore, March 25, 1945. With regard to all twelve leases, the lessee thereunder could keep them alive by payment of the rentals or otherwise, and that defendant, as the owner of the leases by virtue of the assignment, did -pay the rentals due, annually, through the last rental payment date, thereby keeping the said leases alive for the full period of their primary terms.

He then alleges that before March 26, 1945, the expiration date of the primary term of each of the first five leases mentioned, defendant acquired top leases on all the property covered by the first three by taking, directly, and in his own name from the respective owners of the lauds covered by the said three leases, three new leases covering the said lands for a primary term of five years and nine months and had the same recorded in the Conveyance Records of the Parish of St. Landry, and that similarly, before March 26, 1945, the date of the termination of the fourth of the said five leases affected by the said assignment, the defendant acquired a top lease.on the property covered by said lease by. assignment, from one Fr.itz Muller, which the said Muller had taken from the owner of the property for a primary term of five years and nine months, and had the same recorded in the Conveyance Records of St. Landry Parish. ‘ •

The petition then recites that before March 25, 1943, before the termination of the primary term pf the first of the seven leases mentioned, defendant acquired a top lease by assignment from Fritz Muller who had taken a lease from the property owner, and that with.regard to thisj as well as the other’ lease which Muller assigned to him, the said Muller was acting for the defendant as his agent.

With reference to the second lease assigned by Mullfer, it is alleged that the defendant acquired the same in breach ‘of faith with petitioner because the day before Muller took the lease from the property owner, he, plaintiff, telephoned defendant and informed him that he had an opportunity to preserve and perpetuate the lease , which had been assigned) by some arrangement with the Pan American Production Company, which company had told him that it would begin operations for the drilling of an oil well on the property covered by that lease before the expiration of the primary term, and that the said defendant then asked him to go out and take a new lease from the property owner for their joint interest, but when he went to see the property owner on the following day he discovered that the said Muller had already taken a top lease and had had the same recorded, thereby preventing him from going forward with his opportunity to deal with the Pan American Production Company.

. Plaintiff then goes, on to recite that the terms of the said assignments by him to the defendant, in which he expressly reserved the l/16th overriding royalty were in accordance with and in confirmation of the custom, usage, and practice prevailing in the business of buying, selling and assigning oil, gas and mineral leases, rights and royalties, under which custom and practice it is recognized that the assignor retains thé ownership ■ of the reserved royalty in the property affected not only under those leases themselves but under any subsequent lease of the said property which may be acquired or taken by the assignee.

He alleges further that he and the defendant have been engaged for many years in the business of taking, buying, selling and assigning oil, gas and mineral leasés, rights and royalties and that they are and were at the time of the execution of the assignment of these leases entirely familiar with the custom, usage and practices prevailing in the oil business and that in making the said assignment, they contracted in the light of and with reference to the said custom, usage and practice. Further that in the business of. taking, buying, selling- and assigning said leases, rights'and royalties, it is generally and universally considered to be, and it is in fact, .unethical, inequitable, immoral and illegal for the assignee of a lease in which the assignor has reserved an overriding royalty to take a top lease on the property affected by the assigned leases and that if the purpose of taking such a top lease is to circumvent or otherwise defeat said overriding royalty, said effort is completely unavailing, and the overriding royalty is unaffected thereby.

Finally plaintiff alleges that had not the defendant taken the top leases he would have been able to protect and preserve his interests, represented by his overriding royalty by himself acquiring new leases or making arrangements for their preservation by having drilling operations commenced or otherwise, and that he was ready ' and willing to' so protect and preserve his interest and would have done so had not defendant’s conduct made that impossible.

Defendant filed an exception of no right or cause of action whereupon plaintiff filed. a supplemental and amended petition in which he alleges that since the institution of his suit, defendant has drilled two oil wells on two of the tracts covered by the leases described in his original petition which two wells resulted in the production of oil in paying quantities and have continued to produce up to the present time, the amount of production, not being known to him but the defendant being fully informed as to all such facts. He then avers' in detail further contacts on his part by telephone conversations with and letters to the defendant expressing his desire to be kept fully informed with regard to the-said leases as he wanted to protect his interest in the same at all times and that therefore the defendant was warned by him prior to the expiration of certain of the leases that he would stand upon his rights under the assignments therefor and that he would not yield or submit to a scheme which would defraud him of his royalty interest in all of the said leases.

Defendant renewed his exception of rib right or causé of action and the case was then submitted in the District Court on’the said exception. Judgment was rendered in favor of the defendant dismissing the plaintiff’s suit at his costs and from that judgment plaintiff prosecutes this appeal.

The foregoing statement of the pleadings might make it appear that the issues in this case are somewhat complicated but the real question that is involved concerns the right of the assignor of an oil, gas or mineral lease, who, as his principal consideration, reserved an overriding royalty interest in the oil or gas to be produced from the leased property, to exact or demand from the assignee, the same royalty interest reserved by him after the lease which had been assigned had expired by its own terms and the production of oil on the property covered is the result of a subsequent lease taken by the assignee. Stated in another form it may be asked: Does the existence of such an overriding royalty depend upon the existence of the lease itself to which it is attached and consequently expires -\yith the termination of that lease, or does it.attach to the land itself and continue to exist and to be attached to any future leases taken by the assignee on the same property ?

It may be proper to state at the outset that the agreements by which the leases were assigned, although styled and referred to as “assignments”, they are really acts of sub-leases of the various leases which plaintiff- had taken on the properties involved,- to the defendant who then became a- sub-lessee. The -distinction between the two is pointed out in the case of Roberson v. Pioneer Gas Co., 173 La. 313, 137 So. 46, 48, 82 A.L.R. 1264, wherein it is stated that:

“in .an assignment) the assignor transfers his entire interest in the lease in so far as it affects the property on which the lease is assigned; whereas, in a sublease, the original lessee, or sublessor, retains an interest in the lease in so far as it affects the property subleased—by imposing some obligation upon the sublessee in favor of the sublessor, such as an obligation to pay additional rent to the sublessor.”

Act No. 205 of 1938,.provides:

“ * * * that oil, gas and other mineral leases, and contracts applying to and affecting such leases or the right to reduce oil, gas or other minerals to possession, together with the rights, privileges and obligations resulting or flowing therefrom, are hereby defined and classified as real rights and incorporeal immovable property * *

Thus, we are here dealing with contracts relating to an incorporeal immovable, the transfer of which, under Article, 2275 of the Revised Civil Code, “must be in writing”.

The sub-leases in this case are in writing and certified copies are annexed by the plaintiff to his petition. Regardless therefore of what he has alleged with reference to them, they are controlling over his allegations and in construing them the court is limited to what is contained in them unless it should decide that there ate some ambiguous terms and clauses for the interpretation of which it might have to resort to some other means of construction.

With these thoughts in mind, we proceed to a consideration of plaintiff’s first contention that is, that the royalty reservation, being the principal consideration expressed in the agreements, his sole purpose and intent was to participate in the production from a development by the. defendant of the lands covered by the lease. This is so, he contends, because the agreements each provide that the royalty reserved was to be a l/16th “qf all. of the oil and gas produced and saved from the property covered by the lease herein described.” However, in order to arrive at the intent of the parties, it is necessary to refer to all of the pertinent language by which the assignment and transfer was made instead of limiting ourselyes to only a few words or phrases in the agreement.

After reciting that in consideration of the sum of $100 and other valuable considerations, the assignor sells, assigns, transfers and delivers to the assignee, his successors and assigns, all of his rights and interests in all of- the following described oil, gas and mineral leases covering the properties involved, and which are fully described, the agreement stipulates that,

“ * * * as a further consideration for the execution of this assignment, assignor reserves as an overriding royalty one-sixteenth (1/16) of all of the oil and gas-, produced and saved from the property covered by the-lease herein described, less any oil or gas used and conserved for fuel and power in all development and operating said property, * *

Further, it is provided as follows:

“This overriding royalty shall be due assignor if, as and when said oil and gas are, produced and saved as aforesaid, and the assignee herein shall be under no obligations to keep,and preserve the said lease in. force or effect nor to conduct any operations thereon. However, in the event the-said assignee or his successors and assigns, shall elect not to pay the rental on any of' the property described in said lease, for any reason whatever, then the assignee-herein binds and obligates himself to so-notify assignor in writing and within thirty (30) days prior to the due date of the next rental, re-assign such lease or leases to-the said assignor.”

The language is clear and does not. warrant the construction plaintiff would-.' have the Court place on it, that because of the manner in which the reservation is ex-, pressed, that is, that the royalty reserved', was to be of the oil and gas produced and. saved from the property, that that meant, it was reserved as to the oil and gas produced and saved from the property, not-, only under the leases that were being assigned, but under any future leases of the.: ;same property as well. Th'e wording of the reservation indicates just the contrary ■intention, for it is expressly stated'that the royalty is a one'-sixteenth',“of all of the -oil ■and gas produced and saved from the property covered by the lease herein described” (Italics ours). It cannot .be impliecl in •any manner, from the language, used by them, that the parties ever intended contracting with respect to future leases covering the properties described in the leases. Moreover, the defendant by the terms of the agreement was relieved of the obligation of keeping even those leases in effect, if he did not care to do so. By his own allegations, however, plaintiff shows that defendant elected to keep them alive by paying the rental, and in- doing so he relieved himself of the other obligations he had contracted which were (1) to notify plaintiff in writing, in the event he did not, and (2) within thirty days., re-assign the lease or leases to him.

In Calcasieu Oil Company, Inc. v. Yount-Lee Oil Company, 174 La. 547, 141 So. 55 a contention somewhat similar to the one here presented was made by the holder of a'royalty interest. The royalty had been transferred by the land owner to 'an agent, Calcasieu Development Company, Inc., in consideration of the latter having leased his land. The agent claimed its royalty interest still existed in a subsequent lease obtained by the owner of the former lease under which the royalty had been created and which had become forfeited for nonpayment of rentals. Production came after the subsequent lease had been taken and, as does the plaintiff in this case, the agent claimed its share on the ground that, by the language of the deed transferring its royalty interest, it had acquired an actual interest in the land and was entitled to its proportionate share of the royalty accruing to the land as one of the instances of ownership and not as the mere assignee of a portion of the royalty rights. The language in the deed transferring the royalty interest to the agent was somewhat similar to the language in the assignments in the case before us, as the expression in the transfer of the interest conveyed was one of an interest in and of the oil, gas and other minerals, “on, in and under' 'the property.” Further stipulations in the deed showed that the conveyance was made subject to the oil, gas and mineral lease that had been-granted by the vendor ánd that the mineral interest being transferred was to be paid out of the %th interest which the vendor was to receive under the terms of the-said léase. '

This court found that the intent of the parties was “awkwardly expressed” in the deed but nevertheless held that the meaning was clear. It then stated as follows:

“It se'éms plain that the royalty interest to be paid the lessors (vendors) under the ‘terms of said lease’, means only the lease which the lessor’s agent, Calcasieu De-velopmerit 'Company, Inc., negotiated and executed in favor of Charles G. Hooks, which lease was subsequently acquired by the Calcasieu? Oil Company, Inc.; that such interest was to be paid under all the terms of the lease, inclüding that for the forfeiture of the lessee’s rights, and that if, under the terms of the lease, without any fraud or-collusion on the part of the lessors, the lease was terminated by the forfeiture of the lessee’s rights, no royalties are due the lessors, and, as a consequence, none are due its transferees.”

Likewise, in the instant case, it may be said . that the' royalty reserved by the assignor out of. the oil and gas produced and saved from the property covered “by the lease herein described” meant only from the lease he was then transferring and assigning; that such royalty was to be paid under all the terms of that lease and when it terminated, all rights of royalty expired with it.

Aside from the language of the assignment and the custom and practice alleged by plaintiff, it would seem that royalty, by its very nature, when created by a lessee, is dependent for its existence upon the lease under which it is created. In Vincent v. Bullock, 192 La. 2, 187 So. 35, 39, this court approvingly quoted the definition of the term royalty from Corpus Juris, Vol. 54, page 1107, as

“ * * * a share of the product or profit reserved by the owner for permitting ano.ther to use the property * * * the compensation provided for the privilege, of drilling for oil and gas, and consists of a share in the oil and gas produced under existing leases * * *.” (Our Italics.)

The same language is used in the more .recent edition, 58 Corpus Juris Secundum, Mines and Minerals, page 537, § 213. The opinion Vincent v. Bullock also quotes at length from “Mineral Rights in Louisiana” by Mrs. Harriet Spiller Daggett in which she refers to royalty as being “an appendage” to the right on which it depends for its continued existence. That same authority was used in the recent case of Continental Oil Co. v. Landry, 215 La. 518, 41 So.2d 73, 75, where, in contrasting mineral rights and royalty, it is stated:

“The owner of the mineral right has the right of ingress to, and egress from, the land, the right to produce the minerals, the right to participate in the bonuses and delay rentals paid under the terms of any lease. On the other hand, the owner of a royalty right has none of these rights, nor is his consent even necessary for the execution of a lease by the mineral owner, his right being to share in production if and when it is had. Of these two rights it has been correctly said by one of the authorities on the oil and gas law of this state that the royalty right is but an appendage of the right of the mineral owner, and depends upon the continued existence of the right to which it is an appendage. It cannot have a life of its own, any more than could interest exist apart from the note ox debt to which it is attached. See Daggett, Mineral Rights in Louisiana (1939), p. 173.” (Our Italics.)

The overriding royalty reserved by the plaintiff in the present case was a right created by the lease in which he was the lessee and which he assigned to the defendant. It depended on the continued existence of that lease to which it was an appendage. It could have no greater life than the lease itself and consequently upon the termination of the lease it became extinguished and the defendant was at liberty to deal with the owners of the property and' obtain new leases either in his own name or through an agent. The. allegation in-plaintiff’s petition that in respect to some of the leases subsequently obtained by Fritz Muller, Muller was acting as defendant’s agent, adds nothing to his right or cause of action.

The view we take of the language- and meaning of the agreements themselves under which plaintiff assigned the lease and! of their nature, makes it easy for us to-dispose of plaintiff’s contention regarding the custom, usage and practice that prevails in the oil business, in the light of which he alleges that he and the defendant entered into these contracts. If we had', doubt as to the meaning of the terms of the agreements and found ambiguity in any of their clauses, it might well be that plaintiff’should be permitted to resort to parol proof of such custom as he alleges, but we find nothing ambiguous in their language-nor in the terms and conditions they contain. On the other hand, the royalty interest which plaintiff is seeking to have himself recognized as the owner of, being-an incorporeal immovable, and being in. writing, all as heretofore pointed out, it is clear that parol evidence would not be admissible to show that the parties intended, to contract with reference to future leases, as well as the leases that .were being assigned, nor, indeed, with regard to any other intention than the one expressed in the. contracts of assignment themselves. To. permit parol evidence of the nature such as plaintiff would want to elicit under the allegations of his petition would be to permit him to prove title to an incorporeal, immovable by parol and this he could not do in view of the specific provisions of Articles 2275 and 2276 of the Revised Civil. Code.

This brings us now to a consideration of plaintiff’s last contention which seems to be based on the “Constructive trust” theory which implies the violation of some fiduciary relation. Certainly no-such relation arose out of, or appears from. the assignments themselves and were plaintiff to attempt to prove breach of trust-by parol, he would be met with the same rule-of evidence against proving title to an im— movable by such proof. All his allegations with regard to his having been denied the opportunity of acquiring new leases himself because of the top leases taken by defendant, adds nothing to his petition and neither does the fact that in some instances, defendant’s top lease was taken during the' last months of the primary term of the assigned leases, after the last rental due hád been paid. The answer to all of this, it strikes us, is that plaintiff had conveyed to the defendant all of his rights, title and interest in those leases and had reserved to "himself, o»Zy a share in "any production that might develop during their existence. Had •production come in those instances where the top leases were taken within a few months of the expiration of the primary term, his overriding royalty would have'" «come into being as to those; but that did" not happen' and he is therefore in "no better position' with regard to these than with regard to any of the other leases.- •

Counsel for plaintiff stresses the element" of fraud and bad faith growing out of "defendant’s alleged breach of trust. Assuming however, that the allegations of the pe-. tition with regard to" these matters are -allegations of fact and not merely conclusions of the pleader, they would avail plaintiff nothing for here again, a rule of evidence would apply against him. In Scurto v. Le Blanc, 191 La. 136, 151, 184 So. 567, 572 it was held that,

“ * * * although parol evidence is admissible for a plaintiff to prove that he was divested, by fraudulent means, of a title to real estate which he once owned, parol evidence is not admissible — even when fraud is alleged — to establish a title •to real estate in one who did not previously •own the property. * *

See also Cernich v. Cernich, 210 La. 421, 27 So.2d 266. Plaintiff here is not claiming that he has been divested of the royalty he had reserved under the leases he had assigned to the defendant but what he is seeking to do is to have a royalty right," similar to the one he had reserved, impressed on the top leases subsequently taken by the defendant, as, he contends, these top leases were obtained through fraud and breach of trust, for the purpose of defeating his rights. What he is attempting to do-is, in effect, to establish a new title-to - a royalty right "and this, in view of the authority cited, he cannot do even though fraud be alleged.

Counsel’s argument on this phase of the case addresses itself strongly to equitable considerations but where there is express law governing the issues that are presented, the court will not resort to equity in ' deciding them. Revised, Civil, Code,, Article 21. , . .

For the reasons stated, the judgment ap- ■ pealed from’ is affirmed at the costs of the plaintiff; -appellant herein.


source: Caselaw Access Project

author: McCALEB, Justice.

license: Public Domain

text:
    216 La. 849
    STATE ex rel. HARZ v. CITY OF NEW ORLEANS.
    No. 39678.
    Supreme Court of Louisiana.
    Jan. 9, 1950.
    Rehearing Denied Feb. 13, 1950.

      John T. .Charbonnet, Gordon B. Hyde, New Orleans, for relator.
    Sidney C. Schoenberger, New Orleans, ■for respondent.
   McCALEB, Justice.

Relator, a physician," seeks to restrain the City of New Orleans from interfering with his operation of a retail drug business on premises owned by him, bearing municipal number 509 Nashville Avenue, situated in an “A” residential district under the Comprehensive Zoning Law of the .City of New Orleans (Ordinance Nq. 11,302. C.C.S. as amended). He alleges that, he commenced using the property for commercial purposes in 1921 utilizing the rear-portion of the building as a medical office- and conducting a retail drug business in. the front under the name of “Purity-Pharmacy”; .that the property was constantly and continuously used in this manner until April 25th 1949, when representatives of the city ordered him to cease further conduct of -his retail drug business for the reason that he was operating a nonconforming .venture in a residential • district that the demand is not well founded and. that, in order that he might not suffer irreparable injury, the city should be .enjoined from interfering with him in the operation of his drug store. On the showing-made in the petition, the judge issued a. temporary restraining order coupled with, a rule for the City to show cause why the relief prayed for should not be granted.

In due course, the city appeared and defended its action (in demanding that relator desist from attempting to operate a drug; stpre) averring that, whereas he had previously conducted a pharmacy, he had discontinued the use of the premises as such during the early part of 1943; that the-" premises remained closed from that time until April 15th, 1949, when he attempted' to renew operations, and that his action in-so doing was unlawful as he had lost the-right to employ the premises for a nonconforming commercial purpose.

At the -hearing, the parties stipulated that: the evidence to be taken would be considered as on a trial of the merits and it was. further agreed that, in view of the defense of the city, the only question in contest was-whether the premises had been used as a drug store from sometime in 1943 to April 1949. After hearing the evidence touching-on this question; the judge, being convinced, that the defense of the city was well taken,, dissolved the restraining order and dismissed the suit. Relator thereafter obtained a suspensive and devolutive appeal" but, before the record was lodged here, he-applied for remedial writs contending that the remedy by appeal was inadequate -as. the. city was threatening to close his business, before the matter could be heard in. this court. ■ Believing that injustice might: ■occur, we issued a writ of certiorár-i directing the judge to transmit the record so that the validity of the proceedings could be speedily ascertained and directed that, .in the meantime, all matters be stayed until a hearing could be had here on the rule nisi, which has now been submitted to us for decision.

The 'Comprehensive Zoning Law of New Orleans forbids the operation of commercial enterprises in a residential district. However, by paragraph (b) of Section 10, buildings that were being used for commercial purposes at the time the ordinance was ■enacted, may Continue to be so used provided the existing nonconforming use be not expanded and paragraph (c) declares: “No building or part thereof, used in whole or in part for non-conforming commercial or -industrial purposes and located in a Residence or Apartment District * * . * according to the provisions of this ordinance, which thereafter becomes and remains vacant for a continuous period of six (6) calendar months shall again be used except in •conformity with the regulations of the district in which such building is situated; •-* * *»

In the case at bar, it is conceded that relator operated the Purity Pharmacy long prior to the passage of the ordinance and that he was entitled to continue the commercial use provided the property did not become and remain vacant for a continuous period of six months. The word “vacant” is defined by the ordinance to mean that the-building has not been occupied or used, '.bona fide, for a nonconforming commercial purpose for six months and “Neither the intention of the owner nor that of anybody ■else to use a building or lot or part of either for any non-conforming commercial or industrial use, nor the fact that said building or lot or part of either may have been sused by a makeshift or pretended- non-conforming commercial or industrial use shall be taken into consideration in interpreting •■and construing the word ‘vacant’ as used in' this ordinance * * * ”.

Hence, the sole question for decision is •one of fact, i. e., whether relator discontinued the bona fide operation of the P-urity'Pharmacy from'1943 until April 1949, as contended by the city.

From' 1921 untii the early part of 1943, the Purity Pharmacy was an active drug store, relator employing a registered pharmacist and two other' employees. However, it was established by relator’s admission ánd by other evidence that, in the early part of 1943, relator discontinued the services of his employees; that he locked the front doors of the pharmacy, smeared the show windows with a white chalky substance and placed a sign across the front . of the building bearing the words “Closed for the Duration”; that, thereafter, relator did not obtain either a -city or state license to operate the pharmacy; that he did not even apply for one until April 25th, 1949, when the city refused to issue him a retail license to operate the drug store; that he made no sales tax returns; that the telephone -located in the pharmacy was discontinued in January or February 1943 and was not again reinstalled until April of 1949. ‘ ,

Despite these facts, which clearly indicate ; an abandonment of the drug store business for the duration of the war, relator insists that he was nevertheless operating a pharmacy inside the premises. He'testifies that, during the period between May 1943 and April 1949, he filled prescriptions each day and that his customers would use a door located- in a driveway on the side of the property as an entrance and exit in doing business with him. In support of his statement, he submitted a number of his own .prescriptions which he claims were filled at the prescription counter of the pharmacy and the testimony of 12 witnesses (all of whom were either his patients or friends), who stated that they had a number of times, between 1943 and 1949, gone to the Purity Pharmacy entering by the side door; that relator filled prescriptions for them during these visits and that they occasionally made small purchases of patent medicines and other merchandise.

Conversely;, the city produced three witnesses living in the immediate vicinity of the premises who testified that, as far as they knew, the Purity Pharmacy was .closed; that it was a generally accepted fact in the neighborhood that it bad discontinued business; that the front door was locked, the windows chalked out, th.e sign on the door “Closed for the Duration”; that they had no knowledge that the place could be entered by a side.door from the driveway and that they -had never seen .anyone use this door to gain access to tire drug store. .

'The judge of the lower court, who had the .advantage of seeing and hearing the witnesses, resolved that relator’s evidence was insufficient to overcome the admitted closing of the pharmacy to the public and the notice that the property was to remain closed for the duration of the war. For our part;, w.e fail to -detect manifest error in his conclusion on this question of fact. At best, relator’s evidence reveals merely a makeshift operation which the- ordinance specifically excludes from consideration in determining whether the property has been vacated.

In their brief to this court, counsel for relator do not argue the facts of the case but request that we continue the stay order in effect until there is a final judgment rendered on the appeal taken from the judgment below. Apparently, counsel misunderstand the purpose for which’a writ of certiorari is granted. The writ is defined by Article 855 of the Code of Practice to be an order directed to an inferior judge “commanding him to send * * * a certified copy of the proceedings in a suit pending before him, to the end that their validity may be ascertained.” Obviously, when the record is sent to this court in compliance with the writ and the respondent 'judge afid adverse party are ordered to show cause Why the relief prayed for by relator should not be granted, the hearing on the rule to show cause involves a review of the errors allegedly committed below; Indeed, it was only because relator complained of error, coupled with the’ fact that he did not have an adequate remedy by appeal, that this court exercised its supervisory jurisdiction. The fact that relator had prosecuted the appeal is without bearing upon the determination of the issues on the rule nisi. T. Hofman-Olsen, Inc., v. Northern Lumber Mfg. Co., 160 La. 839, 107 So. 593; Wachsen v. Commission Council, 162 La. 823, 111 So. 177 and Welsh v. Board of Levee Com’rs, 168 La., 1037, 123 So. 705.

Here, after an examination of the record, we are convinced that the judge was not in error in refusing to issue an injunction. In such circumstances, it is clear that to do other than recall the preliminary writ and discharge the rule would not be in keeping- with the purpose for which the writ was originally granted. Compare Waggoner v. Grant Parish Police Jury, 198 La. 798, 4 So.2d 833, where it was found on a hearing-.of the rule nisi that -there was considerable doubt as to the validity of the judgment under' investigation and that, since an appeal was then pending in the same matter, the stay order would be extended until the case could be heard and finally decided on the appeal.

The writ of certiorari issued' herein is recalled and the rule to show ca-use is discharged.


author: HAMITER, Justice.

text:
    216 La. 857
    STATE v. FUTCH.
    No. 39685.
    Supreme Court of Louisiana.
    Feb. 13, 1950.

      Charles E. Barham,' Ruston, Ármand 'F. Rabun, James T. Spencer,- Farmerville. for defendant-appellant.
    Bolivar- E.‘ Kemp, Jf., Atty. Gen., M. E. Culligan, Ass’t. Atty. Gen., Ragan D. Madden, District Atty., Rustori, for appellee..
   HAMITER, Justice.

The defendant, P. T. Futch, was tried by a jury of five, under ah indictment charging-that between April 5, 1944, and December 12, 1948, both dates inclusive, he , “* * * did wilfully, feloniously and unlawfully commit a series of thefts of money aggregating the sum of Forty’ One Thousand, One Hundred Ninety & 70/100 ($41,190.70) Dollars, then belonging to and being the property of the Union Parish Police Jury- and while he, the said P. T. Futch, was occupying the office of Secretary-Treasurer of the Union Parish Police Jury and while he, the said P. T. Futch, was entrusted by the Union Parish Police Jury with monies belonging to the said Union Parish Police Jury.”

The jury returned a verdict of guilty as-charged, but it recommended that mercy be shown by the court. Thereafter defendant was sentenced to serve a period of seven, years and six months at hard labor in the-State Penitentiary.

On this appeal defense counsel presented for our consideration two bills of exceptions. and also a motion that was ’filed here, the latter' of which contains a prayer that a new trial be granted or that the case be remanded for the reception of évídence respecting the qualifications of one of .the jurors.

When the district judge overruled defense counsel’s challenge for cause of the prospective juror, A. R. Cook, it having been predicated on the contention that he had a fixed opinion relative to the guilt or innocence of the accused, the first bill of ■exceptions was reserved. Mr. Cook was then challenged peremptorily.

The ruling, in our opinion, was correct. The law on the subject is well stated in State v. Henry, 200 La. 875, 9 So. 2d 215, 219, as follows:

“It is specifically declared in the Code of Criminal Procedure that a partial juror may be challenged for cause ‘but an opinion as to guilt or innocence of the accused, which is not fixed, or has not been deliberately formed, or that would yield to evidence, or that could be changed, does not disqualify the juror/ Article 351. It is only where a prospective juror’s opinion.as to the guilt or innocence of the accused is so fixed that it would influence his verdict that he may be considered' disqualified because of such opinion and challenged for cause. State v. Brette, 6 La.Ann. 652; State v. Carriere, 141 La. 136, 74 So. 792; State v. Scruggs, 165 La. 842, 116 So. 206; State v. Carter, 167 La. 1080, 120 So. 864; State v. Flores, 169 La. 22, 124 So. 132. Even though he has formed an opinion as -.to the guilt or innocence of the accused from discussions participated in or from reading about the same in the newspapers, the prospective juror is competent if, having no prejudice against the accused, he can lay aside that opinion. Particularly is this so where he states under oath that he is able to and will try the case only on the evidence adduced during the course thereof. State v. Roberson, 159 La. 562, 105 So. 621. Furthermore, a prospective juror’s competence or incompetence cannot be limited to isolated answers given during the course of bis examination. It must be judged from bis entire examination. State v. Ford, 42 La.Ann. 255, 7 So. 696; State v. Rodriguez, 115 La. 1004, 40 So. 438; State v. Owen, 126 La. 646, 52 So. 860; State v. Briggs, 142 La. 785, 77 So. 599.”

From ofir study of the entire transcription of Mr. Cook’s examination we are satisfied that he was not prejudiced against the accused and that he entertained no deliberately formed or unyielding ’ opinion on the question of guilt or innocence. Our appreciation of the examination accords with the views announced by the district judge in his per curiam, it reciting in part as follows:

“ * * * He had no bias or prejudice in the case and had had no dealings with the defendant. Like every one else most in the parish he had read in the newspapers about this matter and had heard it discussed generally and casually in his community and while he did answer defense counsel that he had an opinion and. a fixed opinion, his answers as a whole show that he only had a casual opinion, if any at all, as to the guilt or innocence 'of the accused. ■ He said he had only réad about the matter in the newspapers and had heard" it discussed but that no one had talked directly to him about it. Three or four times, including about twice in this transcript of the note of the testimony, the prospective juror repeatedly told the court that whatever he had thought about this case and whatever opinion he had and what'he had'read and heard he could and would completely lay aside and forget, and try the case solely and only from the evidence produced on the trial of the case and the law as given by the court, and that he would accept the law that every defendant is presumed innocent and would require the State to prove the defendant guilty’ beyond a reasonable doubt.”

A portion of the examination of the prospective juror, to which reference is made in-the last quoted sentence of the per curiam, reads:

'“Q. And you will give the defendant the benefit of all reasonable doubt and will presume him to be innocent unless proven guilty beyond a reasonable doubt? A. That is right.
“The Court: ... Mr. Cook, the law;, of course, presumes that, every defendant is innocent until his guilt-is .established to the jury’s satisfaction and beyond a reasonable doubt, and the court, will so charge you. You will accept 'that charge and apply it in this case if you are accepted as a juror ?
“Mr. Cook: That is right.
“The Court: Now, you stated a few minutes ago something about you having heard about this case. . Can you, and will you, if you are accepted as a juror, completely forget and lay aside what you have heard and. try this case solely and only from the evidence you. hear from the witnesses and the law as charged you by the court ?
“Mr. Cook: Yes, sir.
* - * * * * *
“The Court: And will you entirely forget about your present opinion? ,
“Mr. Cook: Oh, sure; yes, sir.
“The Court: And you would do that?
“Mr. Cook: Yes,'sir.
“The Court: And you would take the law as charged you by the court and the evidence from the witnesses and solely that, could make up your verdict in this case ?
“Mr. Cook: Yes, sir.”

The case of State v. Breedlove, 199 La. 965, 7 So.2d 221, relied on by defense counsel, is distinguishable in that the prospective juror therein, unlike the one here, appeared to be prejudiced and also he held a deliberately formed opinion.

The other bill of-exceptions is likewise without merit. When the State attempted to prove that the alleged offense occurred in Union Parish (in which the trial was taking place) defense counsel objected to the evidence for the reason that in the opening -statement to the jury the State’s attorney did not announce an expectation to make such proof. The objection was overruled and bill No. 2 reserved. Article 333 of the. Code of Criminal Procedure requires an opening statement by the district attorney “explaining the nature of the charge and the evidence by which he expects to establish the same”. In his opening statement to -the jury , in this; case,- a copy of which is ip the record, the State’s Attorney -outlined- in , detail the-several transactions forming the basis of the charge; and he commented that the-accused, as shown by the indictment, committed the offense, “while acting- in his. official capacity as Secretary-Treasurer of your Parish Police. Jury, and within the-jurisdiction of this Parish during his term; of office.” This .would seem to .be a substantial compliance with the mentioned procedural requirement. But if insufficient,, it is neither alleged nor shown that defendant was prejudiced thereby; in fact, in oral' argument here, his counsel conceded that he had sustained no injury.

Defense counsel, as before shown, have-moved in writing in this court for a new-trial or, in the alternative, for a remand of the case for the purpose of receiving-evidence respecting the qualifications of one of the jurors who served at the trial.. The motion, supported by. affidavits, alleges; that the juror, Bert Stansbury, cannot read or write, and that this fact was not known to defendant or his counsel until' after sentence had been passed and orders; of appeal granted.

No authority has been cited by defense counsel which either directs or; permits our entertaining jurisdiction of such a motion, and we are aware of none. However, even had it been tendered in- the district court before sentence the motion could' not be granted. To challenge after verdict the qualifications of a juror it must appear that he was examined on his voir dire as to the asserted disqualification and that he-answered falsely. Article 355 of Code of Criminal Procedure; State v. Foster, 150 La. 971, 91 So. 411; State v. Lewis, 161 La. 696, 109 So. 391. And defense counsel do not contend in their motion that they-so examined the juror, Stansbury. They do-show, it is true, that all of the jurors (after having been accepted by the State , and defense) were tested by the Deputy Clerk of Court as to their qualifications when sworn,, and that all answered that they were above-the age of 21 years, domiciled in and residents of Union Parish, not under any indictment, or interdiction, and able to read and write the English language. However, such a'test is not intended to, and-it does' not, relieve the attorney trying the case of his duty to ascertain by a voir dire examination the qualifications of those tendered for jury service. State v. Bryan, 175 La. 422, 143 So. 362; State v. Peyton, 194 La. 681, 194 So. 715.

" For the reasons assigned the conviction and sentence are affirmed.


text:
    216 La. 867
    HAMILTON v. DABBS.
    No. 39727.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Gatlin & Hill, New Orleans, for appellant.
    Connor, Durham & Clarke, James Thomas Connor, New' Orleans, for plaintiff-appellee.
   HAMITER, Justice.

Plaintiff (appellee) 'has' moyed to dismiss the instant appeal of defendant, the motion being predicated on" the contention that a previous appeal was taken and abandoned by appellant.'

From the record it appears that on June 9, 1949, defendant secured an order for a suspensive appeal from a judgment theretofore rendered against him, and on the same day he furnished the required bond. However, the transcript under that order and bond (the appeal was returnable here July 15; 1949) was never filed in this court..

On November 17, 1949; from the sáme judgmént, defendant ’ applied for and'' obtained the devolutive 'appeal presently before us. ' ■

The motion to dismiss must be sustained. The established jurisprudence of this-court is that where a suspensive appeal has been abandoned by a failure to file the transcript within three judicial days after the return day (if ,no extension of time has been, granted) the appellant cannot after-wards take a devolutive appeal from the same judgment. To this effect, and involving a factual situation ' identical with that here, is each of the following: Ducournau v. Levistones, 4 La.Ann. 30; Collins v. Monticou, 9 La.Ann. 39; Redmond v. Mann, 24 La.Ann. 149; Laussade v. Maury, 31 La.Ann. 858; Hymel v. Illinois Central Railroad Company, 116 La. 42, 40 So. 525; Dupierris v. Sparicia, 164 La. 290, 113 So. 851, 852.

In the last mentioned case, we stated:

“The counsel for appellant contends 'that the first appeal ¡bond was given for' a suspensive appeal, and. the failure to bring up the transcript of that appeal could not be considered an abandonment of the devolutive appeal-.
“The jurisprudence is otherwise.
“Where an appeal, whether suspensive' or devolutive, has been perfected by giving the required bond and the appellant fails to file the transcript within the time prescribed by law or the order of court, the right of appeal itself is lost.
“The authorities cited and relied on by counsel were cases where the appeal had not been perfected by giving the bond.
“Of course, there is no appeal to be abandoned until the bond is executed. ******
“In the instant case the defendant complied with the first order of appeal by giving the bond, and, having failed to file the transcript in time, she could not thereafter renew the appeal, and it makes no difference whether the abandoned appeal was suspensive or devolutive.”

The appeal is dismissed.


author: PER CURIAM.

text:
    STATE ex rel. DABBS v. YARRUT, Judge. In re DABBS.
    No. 19507.
    Court of Appeal of Louisiana. Orleans.
    Feb. 27, 1950.
    Gatlin & Hill, New Orleans, for relator.
    Connor, Durham & Clarke, New Orleans, for respondent.
   PER CURIAM.

Arthur Dabbs has applied for a writ of mandamus to force the lower court to grant to him a devolutive appeal to this court from a judgment for $500.00 rendered against him in the matter entitled, “Albert D. Hamilton vs. Arthur Dabbs, doing business as Arthur Dabbs Auto Sales,” No. 288-366 of the docket of the Civil District Court for the Parish of Orleans, the judgment having been signed on June 1, 1949.

Relator took .two previous appeals from the same judgment. On June 9, 1949, he secured an order for a suspensive appeal, returnable to the Supreme Court, and on the same day furnished the required bond. This appeal was never lodged in the Supreme Court.

On November 17, 1949, defendant applied for and obtained an order for a devolutive appeal returnable to the Supreme Court, and ultimately the transcript was filed under docket No. 39,727.

On February 13, 1950, - La. —, 44 So.2d 896, the Supreme Court dismissed the said devolutive appeal, for the reason that where a suspensive appeal has been perfected by giving bond, but abandoned by failure to file the transcript within three judicial days after the return day (if no extension of time has been granted), the appellant cannot afterwards take a de-volutive appeal from the same judgment.

On February 14, 1950, Dabbs sought to appeal devolutively from the same judgment to this Court. The appeal was refused by the judge below, hence, this application for mandamus.

Relator contends that the matter involves a .demand not in excess of $2000.00, which is below the maximum amount of which the Supreme Court has jurisdiction, and, therefore, his two previous appeals, which were taken to a court without jurisdiction, amounted to no appeal at all, and that he is entitled to appeal to this court, which has jurisdiction. We are cited to the case of Opelousas St. Landry Bank & Trust Co. v. Fontenot et al., 173 La. 430, 137 So. 339, in which it was held that an appeal taken to the wrong court virtually amounts to no appeal at all, and may be ignored by the party taking it, and another appeal, notwithstanding the first one, may be timely taken and perfected to the proper court even though the first appeal was dismissed because the transcript was not filed in time.

The suit against relator was brought by a plaintiff who avers he purchased an automobile from relator, in which suit he seeks a rescission of the sale because of fraud, and further judgment in the sum of $2774.85.

Relator’s position is that under the evidence adduced at the trial, under no circumstances could a judgment of more than $2000.00 have been rendered, and that as the amount involved at the moment of the submission of the case did not exceed that sum, this court and not the Supreme Court had appellate jurisdiction.

The amount demanded and the prayer of the petition bring the matter within the jurisdiction of the Supreme Court. Const. 1921, art. 7, sec. 10. There were no pleadings filed nor stipulations made which so limit the issues as to place a part of plaintiff’s demand beyond the realm of dispute, a part sufficient in amount to take the demand out of the jurisdiction of the Supreme Court.

In determining its jurisdiction, an appellate court does not possess the power or authority to trench upon the merits of the case. We have no concern with the question whether the evidence is sufficient only to support a judgment of $2000.00 or less. The amount originally claimed, which is the amount in dispute, is the criterion for ascertaining appellate jurisdiction.

In Templeman v. Templeman Bros., 161 So. 48, 49, we said:

“ * * * when the matter was submitted below the sum in dispute was the amount originally claimed, to wit, $3,000.00, and, so far as the record shows, this is still the amount in dispute.
“We find no remittitur, or stipulation reducing the claim of $504.'98 and, within the legal delays, appellee might by answer to the appeal, request that the judgment be increased to the amount originally prayed for. C.P. art. 890.”

Having no jurisdiction of this litigation, the writs applied for are refused, and relator’s application is dismissed at his cost.

Application for writ of mandamus denied.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    Barbara Terry KLEIN, Appellant, v. Robert Ivan KLEIN, Appellee.
    No. 82-2362.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    Rehearing Denied and Motion for Clarification Granted Nov. 17, 1983.
    John M. Bernazzoli of DeTardo, Longo & Bernazzoli, Hollywood, for appellant.
    James A. Herb of Rohan Kelley, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The former wife brings this appeal to challenge awards of alimony, child support and property distribution which, she contends, are so paltry and inequitable as to constitute a gross abuse of discretion. We agree and reverse.

This was a twenty-six and a half year marriage which resulted in four children, one of whom is still a minor. The wife worked as a homemaker and did not hold employment outside the home. Today, she is without job skills. The husband’s level of income could be termed “moderate” for most of the marriage. In recent years, however, he has enjoyed a period of rapid professional advancement with commensurate salary increases. The precise amount of his income was a subject of dispute at trial, but it approximates $55,000 per year or about $4,500 per month.

The final judgment of dissolution awarded the wife $450 per month as permanent periodic alimony and $450 per month for child support. Additionally, it required the wife and minor child to vacate the marital residence — in return for which, the wife was awarded $35,000 as her one-half interest in the home’s equity. The final judgment contained additional provisions which are not relevant to the parties’ day-to-day existence.

Florida has come to view marriage as an “equal partnership” which, upon dissolution, is subject to equitable distribution. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). In this process, “a trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be ‘shortchanged.’ ” Id. at 1204. We need not belabor the facts of this case. It suffices to say that they portray a graphic example of a spouse who has received far less than her fair share. In addition to the fact that the wife and minor child have been dispossessed of the marital residence, the husband is required to provide less than twenty per cent of his gross income toward their support. In this instance, the wife has been both shortchanged and subjected to severe misfortune. No reasonable person could conclude otherwise.

Dissolution proceedings entail a process of melding separate, but related, provisions into a unified plan for the division of marital assets. “[I]t follows, therefore, that when a trial judge is found to be in error as to some aspect of his disposition, the cause should be remanded with sufficient authority that he may again exercise broad discretion to modify the related matters within his original plan for division and support as may be necessary in order to do equity and justice between the parties in view of the changes required by the appellate opinion.” Goss v. Goss, 400 So.2d 518, 519 (Fla. 4th DCA 1981), quoting Eagan v. Eagan, 392 So.2d 988, 990 (Fla. 5th DCA 1981). Accordingly, we reverse the final judgment of dissolution in its entirety and remand for further proceedings.

REVERSED AND REMANDED.

HURLEY and DELL, JJ., concur.

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

ANSTEAD, Chief Judge,

concurring specially:

I agree that the wife was shortchanged. However, instead of directing the trial court to try again, I would remand with directions that the alimony award of $450.00 monthly be doubled to $900.00 and that the marital home be partitioned, absent an agreement of the parties to the contrary, with the husband to be responsible for all expenses of maintenance, including mortgage, taxes, etc., pending the sale. In all other respects I would leave the trial court award intact.

BY ORDER OF THE COURT:

ORDERED that Appellee’s motion for clarification is granted. This court’s opinion of October 12, 1983, does not affect the decretal provision of the final judgment which dissolved the parties’ marriage.


author: ORFINGER, Chief Judge. SHARP, Judge,

text:
    Ralph Nelson HENSHAW, Petitioner, v. Thomas C. KELLY, etc., et al., Respondents.
    No. 82-605.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 1983.
    Rehearing Denied Nov. 10, 1983.

      Joseph C. Jacobs and J. Lawrence Johnston of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioner.
    William K. Howell, Jr., Sr. Asst. County Atty., DeLand, for respondents.
   ORFINGER, Chief Judge.

Petitioner Henshaw requests the issuance of a writ of certiorari directed to a decision of the circuit court sitting in its review capacity. We have jurisdiction. Fla.R. App.P. 9.030(b)(2)(B).

Petitioner’s employment as a deputy sheriff of Volusia County was terminated by the County Manager following a hearing before the County’s Personnel Board. Hen-shaw sought review of this action in the circuit court. The circuit court denied relief in a detailed order which we recite in full.

ORDER DENYING CERTIORARI

This cause came on for hearing on petitioner’s Petition for Writ of Certiorari and supplement thereto to review the recommendation and findings of fact of the Personnel Board of Volusia County and the termination letter dated August 10,1979 of Thomas Kelly, County Manager, which terminated petitioner: The court has reviewed the entire record beginning with the original termination letter from Sheriff Duff to petitioner dated June 6,1979, the Personnel Board’s recommendation for petitioner’s suspension to Manager Kelly, the manager’s termination letter, the transcript and exhibits from petitioner’s hearing before the Personnel Board held July 30 to August 3,1979, and the tape recorded deliberations and findings of fact of the Personnel Board. The court has further considered the briefs, memoranda of law, and arguments of counsel for the respective parties.

Synopsis of the Facts

Petitioner Henshaw was a senior officer of the Volusia County Sheriff’s Department with the rank of Lieutenant when he was terminated by Respondent Sheriff Duff on June 6, 1979 by a letter which placed petitioner on notice of numerous causes for his dismissal. In accordance with the county’s Personnel Rules, petitioner requested and was afforded a hearing before the county’s Personnel Board. The board exonerated him of some of the charges against him but found that he was responsible for several serious violations of law or policies of the Sheriff’s Department. The board recommended suspension for six months without pay, but the county manager, under his authority granted by the Personnel Rules, terminated petitioner by letter of August 10, 1979.

The court finds as follows:

1. The parties earlier filed cross motions for summary judgment on matters in dispute not requiring the preparation of a transcript of the lengthy Personnel Board hearing. Petitioner essentially maintained, first, that the county’s Personnel Rules (a county ordinance) did not authorize the manager to modify the Personnel Board’s recommendation that petitioner be suspended by determining to affirm petitioner’s termination by the sheriff. Second, petitioner maintained that the manager’s termination of petitioner when the Personnel Board had recommended suspension departed from the essential requirements of law and ignored the findings of fact of the Personnel Board.

2. The court reviewed the county’s Personnel Rules and determined that they provide that an employee disputing action by his superior is entitled to an evidentiary hearing before the county’s Personnel Board. The board is obligated, after a hearing, to make findings of fact and recommendations to the county manager. Rule 13 is clear that the manager may modify the disciplinary action recommended by the board if he determines, after review of the board’s findings and recommendation, that the recommendation “was not well founded or too severe and may direct that it be cancelled or modified.” Rule 13 further characterizes the board’s transmission to the manager as “findings and advisory opinion” and further characterizes (in two places) the manager’s action as “final”. The manager’s termination letter of August 10, 1979 states, “Though I accept the foregoing findings of fact, I do not accept the recommendation that termination is too severe. It is my determination that your actions clearly warranted termination.” The court found that the manager had authority to determine that the board’s recommendation of suspension was not well founded and to modify the discipline recommended by approval of the petitioner’s termination.

3. Regarding petitioner’s position that the manager ignored the Personnel Board’s findings and recommendation, the court found such position to be without merit based upon the recitations in the termination letter and two affidavits of the county manager dated February 4, 1980 and January 26,1981. The affidavits were furnished the court by petitioner and were uncontro-verted. They show that the manager made his decision to terminate petitioner solely upon the tape recorded deliberations and findings of fact of the Personnel Board together with the recommendation of the board. The affidavit of January 26, 1981 states:

“4. The Board’s findings of fact and deliberations were tape recorded at the close of Mr. Henshaw’s hearing, and I was informed of their existence. I asked a personnel technician to set up the tape recording at the point where the Board’s deliberations began, and I then listened to the tape recording. I did not listen to or consider any other portion of the hearing, as I am required by the Personnel Rules to base my decisions only on the Board’s advisory opinion and findings of fact.
“5. In listening to the tape recording, I found that the board had determined four separate instances of improper conduct and had discussed the facts of a fifth incident.
“6. After careful consideration of these findings of fact, I decided that the board’s recommendation of a six months’ suspension was not too severe, in fact, I decided that it was far too lenient considering the gravity of the offenses. In my opinion, the board’s recommendation for disciplinary action was not well founded and, accordingly, I decided that the action should be modified to provide for termination of Mr. Henshaw.”

4. The court held that the manager’s action was in accordance with authority granted by the county’s Personnel Rules and that, rather than ignoring the findings of fact and recommendation of the board, he gave them careful consideration. Accordingly, the court denied petitioner’s Motion for Summary Judgment. The court found as a matter of law that the manager acted within his authority pursuant to the Personnel Rules and other applicable law, and that his exercise of such authority was not a departure from the essential requirements of law. Summary Judgment was entered in favor of respondents on these issues.

5. Petitioner’s second major contention, that there was a lack of competent substantial evidence to support the findings made by the Personnel Board, required a transcript of the hearing and transmission of the exhibits placed in evidence, together with the board’s tape recorded deliberations and findings of fact. The parties submitted briefs setting forth their positions, and oral argument was heard on February 23, 1981. Petitioner again raised the issue of the manager’s authority under the Personnel Rules and asserted again that the manager ignored the recommendation and findings of the Personnel Board. These issues have previously been determined by the summary judgment in favor of respondents.

6. Petitioner raised a new issue in his brief, maintaining that construction of the Personnel Rules to authorize his dismissal would invalidate the Personnel Rules under the provisions of the county’s charter, Chapter 70-966, Laws of Florida. Petitioner asserts that Charter Section 1006 provides for “review” by the Personnel Board of personnel actions of the charter government established under the rules and regulations of the merit system (Personnel Rules). Because the manager is the chief executive of the county government, petitioner maintains that he cannot impose a sanction (termination) more severe than recommended by the Personnel Board. Petitioner cites certain “annotations” to the charter made by a charter study commission; however, such annotations are not a part of the charter and thus cannot be construed as requirements to be followed by the County Council in promulgation of the Personnel Rules ordinance. The annotations are not persuasive at any rate. Generally, they comment that the Personnel Board’s members do not hold nor are they candidates for public office or employment and are thus immune to “special or political interest.” Petitioner erroneously concludes that the manager has such “special or political interest”. Nothing in the annotations or the charter itself suggests that the Personnel Board is “superior” to the manager nor that the board’s review of the employee grievances must be final nor that the recommendations of the board may not be modified by the manager. In fact, the board’s powers are not set by the charter. Charter Section 1003.3 provides:

“The personnel board shall have all of the powers and duties as described in the merit system rules and regulations as adopted by the council.”

The annotation does suggest that it is the intent of the charter to insulate the board from special or political interest. Likewise, the charter itself, at Section 404, specifically insulates the appointed manager from political influence by prohibiting the County Council from interference with the performance of the duties of the manager and his staff. The “political interests” of the manager to which petitioner refers do not exist.

None of the procedures under the Personnel Rules are unusual, a departure from the essential requirements of the law, a denial of due process, or in violation of the County Charter.

7. Petitioner’s last contention is that the board’s findings of fact are not supported by competent substantial evidence sufficient to sustain either the sanction recommended by the Personnel Board or imposed by the manager.

a) Petitioner was afforded a five day evi-dentiary hearing before the Personnel Board. Prior to the hearing, he was allowed discovery, was notified of the names and addresses of witnesses the sheriff intended to call and was afforded the opportunity to have his witnesses subpoenaed by the Personnel Board. He was represented by counsel at all times and was allowed to call witnesses on his behalf and to cross examine witnesses against him and to introduce documentary evidence. Review of the transcript reveals that petitioner was truly afforded a due process hearing. The board members, though not judicially trained, gave petitioner full opportunity to defend himself and to present evidence. Closing arguments were allowed at the conclusion of the hearing.

b) The Personnel Board then deliberated and discussed the charges and the evidence produced and made certain findings of fact. Such deliberations were tape recorded and were a part of the consideration of the manager before he rendered his decision. The recording is a part of the record herein. It is not an essential requirement of law or of the county’s Personnel Rules that the board make formal written findings as to each factual determination. The tape recorded deliberations and findings of fact are no less substantial and effectual merely because they were not transcribed. The court is impressed with the board’s deliberations; they show attentiveness, a careful consideration of the testimony, and attention to the demeanor of the witnesses. The board found in favor of petitioner on several of the charges against him and were ever mindful that the burden of proof was on the county. The board gave every benefit of the doubt to petitioner.

c) The board found as fact regarding the petitioner the following as set forth accurately in the manager’s termination letter:

“1. That you fired a firearm into the ceiling of a service station on State Road 15A near DeLand (a public place) in the company of a number of motorcyclists and that such conduct was a violation of the law.
“2. That though it was not proven that you had actually smoked marijuana, you had knowledge of the use of illegal drugs by others and failed to take proper action or make written reports to the Sheriff’s Department.
“3. That you engaged in a public altercation in the ABC Lounge in De-Land which caused the management to obtain the services of both the DeLand Police Department and the Sheriff’s Department to require you to leave the premises.
“4. That you interfered with the arrest of Martin Fedora by a DeLand police lieutenant.”

The board further discussed certain violent and unusual conduct by petitioner on May 6,1978 which involved numerous members of the DeLand Police Department and the Sheriff’s Department together with members of petitioner’s family and other citizens. It is clear to the court that but for petitioner’s position as a sheriff’s lieutenant, he would have been arrested as a result of his conduct. Two of the three members of the board thought that the bizarre conduct was improper but could not agree on whether it indicated permanent instability.

d) The court has reviewed the transcript of the petitioner’s hearing and finds that some of the evidence is in conflict but finds that there was competent substantial evidence to support the foregoing findings of fact. It is not the province of this court to reevaluate conflicting evidence as such action would amount to an improper granting of a trial de novo. Campbell v. Vetter, 392 So.2d 6 (Fla. 4th DCA 1981); Hardin v. North Miami Beach, 364 So.2d 843 (Fla. 3d DCA 1978). Unlike the Campbell case, the instant case was not permeated with hearsay; on the contrary, the testimony was primarily by eyewitnesses or participants in the various events. Orders of administrative boards or officers are presumed correct and petitioner has the burden on certiorari review of proving the opposite. Petitioner here has failed to do so. See: Gulf Coast Motor Line v. Hawkins, 376 So.2d 391 (Fla.1979).

ACCORDINGLY, certiorari is hereby denied.

Our function in reviewing an order of the circuit court which in turn reviewed an administrative order is to determine if the circuit court afforded procedural due process and applied the correct law. City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982). Without receding from or otherwise distinguishing City of Deerfield Beach, the Florida supreme court in Combs v. State, 436 So.2d 93 (Fla.1983), has again addressed the scope of certiorari review of an appellate decision of the circuit court. In Combs, the supreme court said:

Hence the phrase “departure from the essential requirements of law” should not be narrowly construed so as to apply only to violations which effectively deny appellate review or which pertain to the regularity of procedure. In granting writs of common-law certiorari, the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error. Since it is impossible to list all possible legal errors serious enough to constitute a departure from the essential requirements of law, the district courts must be allowed a large degree of discretion so that they may judge each case individually. The district courts should exercise this discretion only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.
It is this discretion which is the essential distinction between review by appeal and review by common-law certiorari. See Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974). A district court may refuse to grant a petition for common-law certiorari even though there may have been a departure from the essential requirements of law. See Mystan Marine, Inc. v. Harrington, [339] 337 So.2d 200 (Fla.1976). The district courts should use this discretion cautiously so as to avert the possibility of common-law certiorari being used as a vehicle to obtain a second appeal.

The record clearly shows that a full, due process hearing was afforded petitioner. The circuit court order finds it to be so, and nothing in the record refutes that finding. The board found petitioner guilty of at least some of the charges levelled against him by the sheriff and recommended a six-month suspension. The County Charter and Personnel Rules, however, make the County Manager the final arbiter of disciplinary proceedings, and he has the final say in the penalty. We should not assume his duties.

Section 13.02 of the Volusia County Personnel Rules provides, in pertinent part:

G. Upon receipt of the findings and advisory opinion of the Personnel Board concerning the appeal, the County Manager shall put in writing the course of action he intends to follow. The decision of the County Manager, with due consideration to the findings and advisory opinions of the Personnel Board, shall be final and the employee shall have no further right of administrative appeal.
H. In cases of disciplinary actions, the County Manager may decide, after consideration of the Board’s finding and opinion, that the disciplinary action was not well founded or too severe and may direct that it be can-celled or modified.

The County Manager is thus not bound by the advisory opinion of the Personnel Board, but he may sustain, modify, reverse or enhance disciplinary action taken against any County employee by his or her immediate superior, as the circumstances of the case may warrant. Cf. Victor v. Stierheim, 380 So.2d 1319 (Fla. 3d DCA 1980).

The circuit court afforded procedural due process and applied the correct law. City of Deerfield Beach v. Vaillant, supra. Certiorari here should thus not be used as a means of obtaining a second appeal. We find no violation of a clearly established principle of law which results in any miscarriage of justice, so we deny the writ. Combs, supra.

Certiorari DENIED.

COBB, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I respectfully dissent in this case because I think at least one substantial breach of the petitioner’s due process rights occurred in this proceeding. Therefore, the lower court erred in not quashing the decision reviewed and requiring a new hearing. Apparently, the granting of a writ of common law certiorari in these cases is only proper if a reversal is in the offing. See Combs v. State, 436 So.2d 93 (Fla., 1983) [8 F.L.W. 289].

The record shows that the county manager in this case reviewed not only the taped discussion of the personnel board, but made the board’s findings of fact for it. The Volusia County Personnel Rules clearly provide that the board is the fact-finder, and that it should submit its findings to the county manager. In this case, the manager actually wrote the findings, although he had not heard any of the evidence nor read any summary of it. This would ordinarily constitute a departure from the requirements of administrative due process. Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C.Cir.1970); Ideal Farms, Inc. v. Benson, 181 F.Supp. 62 (D.C.N.J.1960). However, in this case, after listening to the tapes, I agree the manager fairly summarized the board’s views, and therefore, there was no departure from the essential requirements of law.

However, the manager also read the sheriff’s investigative report concerning Hen-shaw. The sheriff, who acted the role of prosecutor in this disciplinary proceeding, furnished the report to the manager. The report admittedly contained adverse statements by persons who were not called as witnesses at the hearing, and conclusions by attorneys and administrators who were involved in presenting the case against Hen-shaw. The report was not part of the record. Henshaw was given no chance to refute the damaging statements in the report before the county manager decided to increase his punishment from suspension to firing.

In proceedings where a due process type of hearing is required, the finder of fact must make its determination on the basis of the record and evidence presented at the hearing. 2 K. Davis, Administrative Law Treatise, § 10:2 (2d ed. 1979). The person entitled to a due process type of hearing must be given an opportunity to confront and cross-examine adverse witnesses. 2 K. Davis, supra, at § 12:9. Ex parte contacts defeat both basic principles.

This is why ex parte contacts with decision makers are condemned upon proof that they were made, without necessity to show prejudice. Camero v. United States, 375 F.2d 777 (Ct.Cl.1967); cf. State v. Hohl, 431 So.2d 707 (Fla. 2d DCA 1983); § 120.66, Fla.Stat. (1981). In this case, the county manager stated in an affidavit filed with the circuit court (the “appellate court”) that he had read the ex parte report, but he did not rely upon it in making his decision. But prejudice enough is apparent because the manager imposed a much harsher sanction than did the board. I think a pile of affidavits could not untaint the broth in this case. It should be thrown out, and the soup commenced again.

      . § 13.02(H), Volusia County Personnel Rules.


author: THOMPSON, Judge. ERVIN, Chief Judge,

text:
    Altha B. GILLESPIE, Appellant, v. STATE of Florida, Appellee.
    No. AK-364.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1983.
    Rehearing Denied Nov. 30, 1983.

      Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   THOMPSON, Judge.

Gillespie appeals his conviction and sentence for sexual battery by using or threatening to use a deadly weapon in violation of § 794.011(3), Fla.Stat. (1981). We affirm.

Of the seven points raised on appeal, only the point contending the trial court committed reversible error by refusing to instruct the jury on the lesser included offense provided in § 794.011(4)(b) merits discussion.

Citing Lomax v. State, 345 So.2d 719 (Fla.1977) and State v. Abreau, 363 So.2d 1063 (Fla.1978), Gillespie contends the trial court committed per se reversible error in failing to instruct the jury, as requested, on the lesser included offense of sexual battery by threatening to use force or violence likely to cause serious personal injury, § 794-011(4)(b). Gillespie was charged and convicted of sexual battery by using or threatening to use a deadly weapon, to wit: a knife in violation of § 794.011(3), Fla.Stat. The only evidence in the case is that Gillespie committed a sexual battery by using or threatening to use a deadly weapon, to wit: a knife. Gillespie makes no contention on appeal that a deadly weapon was not used in the commission of the offense. Section 794.011(4)(b) is a category 2 lesser included offense which is not necessarily included in the offense for which Gillespie was charged. If there was any evidence whatsoever that a deadly weapon was not used then it would have been reversible error for the trial judge to have refused to instruct on the lesser included offense. However, in this case, there was no evidence that a knife was not used and it was therefore proper for the trial judge to refuse to instruct on the lesser included offense.

Prior to 1981 the Florida Rules of Criminal Procedure and their predecessor statutes were interpreted by the Supreme Court in Brown v. State, 206 So.2d 377 (Fla.1968) and in later cases to require instructions on attempts and on all lesser degrees of an offense even when there was no evidence of the lesser included offense or the attempt. Gillespie’s reliance on Lomax and Abreau is misplaced because they were prior to the 1981 amendment to the Florida Rules of Criminal Procedure and were controlled by Brown.

Florida Rule of Criminal Procedure 3.510 was amended in 1981 to provide that a judge shall not instruct the jury on an attempt to commit an offense if there is no evidence to support such an attempt and the only evidence proves a completed offense. In re Florida Rules of Criminal Procedure, 403 So.2d 979 (Fla.1981). It was further amended to provide that “[t]he judge shall not instruct on any lesser included offense as to which there is no evidence.” Id. In approving these recommended changes to Rule 3.510, the Supreme Court said:

We do not view these changes as invasions by the trial judge into the province of the jury — our concern in Lomax v. State, 345 So.2d 719 (Fla.1977). In Lo-max a trial judge refused to give a requested lesser offense instruction solely because there was ample evidence to support a guilty verdict on the higher offense. This is to be distinguished from the instant changes, which will eliminate the need to give a requested lesser offense, not necessarily included in the charged offense, when there is a total lack of evidence of the lesser offense. (emphasis added).

In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, 431 So.2d 594, 597 (Fla.1981). More recently in the case of Bell v. State, 437 So.2d 1057 (Fla.1983) the Supreme Court held:

In a single count indictment or information on the charge of trafficking, a trial judge, being satisfied that there is sufficient evidence to support the trafficking charge, must so instruct the jury on that charge. Also, the judge must instruct on the lesser included offense of sale and possession if evidence exists of these offenses. (emphasis added).

The amended Rule 3.510(b) and the comments of the Supreme Court in approving this amendment make it absolutely clear that no instruction should be given on a lesser included offense that is not a neces-, sarily lesser included offense of the crime charged when there is no evidence of the lesser included offense.

Juries are finders of fact. They should and do have a wide latitude in finding the facts. Even if the evidence is overwhelming that the defendnt is guilty of the crime with which he is charged, the court must give a charge on a lesser included offense as to which there is any evidence. However, the jury has no right to exercise its “pardon” power if there is no evidence of attempt or of a lesser included offense and no instruction on attempt or lesser included offense should be given in such a situation because it would merely confuse the jury.

The judgment and sentence is AFFIRMED.

WIGGINTON, J., concurs.

ERVIN, C.J., dissents.

ERVIN, Chief Judge,

dissenting.

Although there was clearly evidence before the jury from which it could infer that the defendant coerced the victim to submit to a sexual battery by threatening her with a knife, the majority now apparently concludes that because a knife was used, there can be no evidence that the threatening display of the knife involved as well the use of force or violence likely to cause serious personal injury in violation of section 794.-011(4)(b). In all due respect to the majority, this holding is a rather bizarre interpretation of the effect of the amendment to Florida Rule of Criminal Procedure 3.510(b), precluding an instruction “on any lesser included offense as to which there is no evidence.” (e.s.) The purpose behind the rule’s amendment was to make it consistent with the newly adopted schedule of lesser included offenses, which, like rule 3.510(b), went into effect on October 1, 1981. In re Florida Rules of Criminal Procedure, 403 So.2d 979 (Fla.1981).

The Standard Jury Instructions in Criminal Cases lists the offense provided for in subsection (4)(b) as a category 2 lesser offense — one that may or may not be included depending on the charge and the evidence— to section 794.011(3), the offense for which defendant in the case at bar was convicted. In adopting the schedule of lesser included offenses, the supreme court commented that it was “an authoritative compilation upon which a trial judge should be able to confidently rely.” In the Matter of Use by the Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 597 (Fla.1981). Although it has been held that the approval of the schedule was never intended to bind trial courts rigidly in all circumstances, Smith v. Mogelvang, 432 So.2d 119 (Fla. 2d DCA 1983), the supreme court has clearly intimated that a deviation from it may risk error. In my judgment the deviation in the case at bar was unwarranted.

Two requisites must be satisfied in determining whether subsection (4)(b) may be considered a category 2-lesser included offense to subsection (3): the document charging the greater offense must allege all the elements of the lesser offense and the proof must support the allegation of the lesser offense. See Gay v. State, 432 So.2d 602 (Fla. 2d DCA 1983). There can be little question that the information in the case below meets the first of the two requisites. It alleges that the defendant committed “a sexual battery upon and without the consent of [victim], a person over the age of 11 years, and in the process thereof used or threatened to use a deadly weapon, to wit: a knife, contrary to the provisions of section 794.011(3), Florida Statutes.” (e.s.)

The only substantial question remaining is whether the evidence presented meets the second criterion. The majority’s opinion quotes from In the Matter of Use by the Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d at 597, to bolster its thesis that no instruction need be given in cases in which “there is a total lack of evidence of the lesser offense.” The supreme court’s opinion, however, distinguished cases in which there was no evidence to support a charge on lesser included offenses and those cases that did, citing Lomax v. State, 345 So.2d 719 (Fla.1977), as an example of the latter. Thus, in Lomax, we find that the trial court erred in failing to give instructions on assault with intent to commit robbery and attempted robbery as lesser included offenses to that of robbery. The Lomax opinion in turn cited with approval its former opinion in State v. Terry, 336 So.2d 65 (Fla.1976), in which it was held to be error for the trial court to refuse requests for instructions on assault and battery and bare assault as lesser offenses to assault with intent to commit murder in the first degree. In each of the above cases I find that the court implicitly recognized that both the evidence and elements of the lesser offenses were present in the greater offense charged — but not necessarily the converse.

Cases decided after the October, 1981 amendment to Florida Rule of Criminal Procedure 3.510(b), precluding instructions on lesser offenses “as to which there is no evidence,” reflect a similar pattern as in Lomax and Terry. Thus, in State v. Gibson, (Fla., February 17, 1983), the supreme court was confronted with the question of whether separate sentences and convictions could be imposed for both robbery with a firearm and display of a firearm during the commission of a felony. The court’s analysis of the problem turned on whether display of a firearm could be considered a lesser offense to the greater. In holding that it was, the court made the following observations:

The elements of the less serious crime in question here are (1) displaying a firearm (2) while committing or attempting to commit a felony. Thus the lesser crime of displaying a firearm while committing a felony is not a necessarily included offense of [simple] robbery. Where, however, the charge is robbery enhanced or aggravated by the carrying of a firearm, as is the case here, then the greater offense of armed robbery requires proof of all the facts required to be proved to establish the lesser offense of possession of a firearm during the commission of a felony, plus more. Therefore, the latter offense is a lesser included offense of the former.

8 FLW at 77. This analysis is altogether pertinent here. The greater offense of sexual battery by use or threat of use of a deadly weapon requires also proof of all the facts required to prove the lesser offense of sexual battery by coercing the victim to submit by threatening to use force or violence likely to cause serious personal injury-plus the additional fact of the use of a deadly weapon..

Although Harris v. State, 338 So.2d 880 (Fla. 3d DCA 1976), was decided before rule 3.510(b)’s amendment, its analysis of whether the offense proscribed by section 794.-011(5) — sexual battery by the use of force not likely to cause serious personal injury— can be considered a lesser offense to subsection (3) is altogether pertinent to the issue at bar. There the court observed:

From the wording of subsection 3, it is clear that the legislature intended that it apply to two situations, one of which involves sexual battery with the use or threat of use of a deadly weapon. When a defendant is charged under this provision, it is unnecessary for the State to allege or prove the use of actual physical force in any degree. Want of consent under such circumstances stems from fear created by display of the deadly weapon, and not from physical force.

338 So.2d at 882 (e.s.). Accord Bragg v. State, 433 So.2d 1375 (Fla. 2d DCA 1983).

Consequently, notwithstanding that the Third District did not have the precise question now before us as to whether the offense prohibited by subsection (4)(b) was a lesser included offense to subsection (3), it implied that subsection (4)(b) was an offense that might be included within the greater, in that proof of the lesser offense is satisfied by proof showing that the will of the victim to resist is overcome by a threat to use a deadly weapon. In my judgment this is simply another way of saying that the threatening display of a deadly weapon involves also the threat to use force or violence likely to cause serious personal injury.

Recently the Florida Supreme Court in Bell v. State, 437 So.2d 1057 (Fla.1983), clarified its rule regarding the imposition of separate convictions and sentences for offenses that arise from the same transaction. It observed that “[f]or double jeopardy purposes lesser included offenses are tantamount to the greater offense charged if all the constituent essential elements of such lesser offenses are included within the elements of such greater offense.” 437 So.2d at 1058 (e.s.). The court pointed out that several tests are utilized to determine whether offenses may be considered distinct or the same. One such test involves deciding whether the elements constituent in one statute are sufficiently similar to the elements of another. Id. Thus, if one statutory offense includes all of the elements of the other, both offenses are considered the same for double jeopardy purposes. 437 So.2d at 1060. In concluding that sale and possession of drugs are lesser offenses to trafficking in drugs, the court stated:

By including sale and possession of drugs within the trafficking statute, it is apparent that the legislature intended to facilitate trafficking prosecutions through the use of alternative methods of proof rather than attempting to provide for multiple convictions and punishments for criminal conduct which is basically unitary.

Id.

In examining the statutory offense provided in section 794.011(3), it seems reasonably clear to me that it contains all of the elements present in subsection (4)(b). In my judgment the legislature has, in enacting subsections (3) and (4)(b), simply provided alternative methods of proof for punishing criminal conduct which is basically unitary.

I therefore consider that both the crime charged and the requested lesser offense involve a threat, and the fact that threat of use of a deadly weapon was charged is not inconsistent with a finding that the same conduct of appellant constituted a threat of force or violence likely to cause serious personal injury. Accordingly, if an instruction on section 794.011(4)(b) had been given, and if appellant had been convicted of that crime, the conviction could not have been for a crime not charged in the information. Cf. Hicks v. State, 362 So.2d 730 (Fla. 3d DCA 1978); Smith v. State, 365 So.2d 405 (Fla. 3d DCA 1978).

I otherwise agree with the majority that none of the remaining points raised on appeal requires reversal.