author: WENTWORTH, Judge.

text:
    Aubrey McPHADDER, Appellant, v. STATE of Florida, Appellee.
    No. AV-474.
    District Court of Appeal of Florida, First District.
    June 13, 1984.
    P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., John Tiedemann, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant was charged with two counts of selling alcoholic beverages without a license, and two counts of maintaining a place where alcohol was sold without a license in violation of § 562.12. The case was tried in the circuit court, and the jury returned guilty verdicts on the latter two counts.

The caption of the amended information stated that the charges against appellant were felonies, and the factual allegations for each count were that appellant, “having previously been convicted of a violation of the Beverage Law of the State of Florida,” violated § 562.12. That statute classifies as a misdemeanor the sale of alcohol, or maintenance of a place where alcohol is sold, without a license. However, § 562.45 provides that any person who has been convicted of a beverage law violation and is thereafter convicted of a further violation shall be guilty of a third degree felony.

Analogizing this case to Phillips v. State, 438 So.2d 886 (Fla. 1st DCA 1983), appellant argues that the allegations of the amended information were insufficient to invoke the jurisdiction of the circuit court, that the deficiency is fundamental and therefore his conviction must be reversed.

In Phillips, the court found that labeling the information “Felony Petit Theft” was insufficient to invoke circuit court jurisdiction when the body of the information alleged facts which would only constitute misdemeanor petit theft, and referenced § 812.014(2)(c). Section 812.014(2)(c) defines petit theft as a misdemeanor but goes on to provide that:

... Upon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony of the third degree.

In holding that the deficiency was so fundamental that the circuit court did not have jurisdiction, the court explained:

To omit the historical fact of prior convictions from the charging language of an information such as this is to charge only a petit theft and is said to be a jurisdictional defect,_

Id. at 887, 888.

Unlike Phillips, the historical fact of the prior conviction in this case was alleged in the charging language of the information, albeit in conclusory terms devoid of the specific facts constituting the prior conviction. Thus, we find this case distinguishable from Phillips, and controlled instead by the recent Supreme Court decision in State v. Lindsey, 446 So.2d 1074 (Fla.1984).

In Lindsey, the defendants had been charged with burglary in the course of which the offenders committed an assault. The fourth district reversed the convictions on that charge holding that the information was deficient in that it did not allege facts constituting the assault but merely stated that an assault was committed upon the occupant of the house. Lindsey v. State, 416 So.2d 471 (Fla. 4th DCA 1982). In reversing the district court, the Supreme Court reiterated the rule that:

An information must be quashed for vagueness on a motion to dismiss only if it is “so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.”

Lindsey at 1075.

As in Lindsey, the information in this case charged ultimate, conclusory facts. Also as in Lindsey, the defendant here had available to him the modern, more liberal discovery rules to prevent any handicap in the preparation of his defense. Since the information in Lindsey was found to be sufficient to withstand the defendant’s motions to dismiss, it follows that the information in this case was sufficient to invoke the jurisdiction of the circuit court.

Appellant’s remaining point on appeal asserts that fundamental error occurred when the investigating officer testified that he had received information that alcoholic beverages were being sold in the area. Citing Collins v. State, 65 So.2d 61 (Fla.1953), and Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981), appellant argues that the officer’s testimony was inadmissible hearsay. Assuming, without deciding, that Collins and Postell are applicable to the broad statement at issue here, we hold that any error which might have occurred was harmless in light of the overwhelming evidence against appellant, and the fact that both he (through his testimony) and his attorney (in his opening statement) provided the jury with essentially the same information, i.e., that it was generally known that there were a lot of “bootleg” houses “in the area.”

Affirmed.

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

      . The caption read as follows:
      AMENDED INFORMATION FOR
      I. SALE OF ALCOHOLIC BEVERAGES WITHOUT A LICENSE (FELONY)
      II.MAINTAINING A PLACE WHERE ALCOHOLIC BEVERAGES ARE SOLD WITHOUT A LICENSE (FELONY)
      III. SALE OF ALCOHOLIC BEVERAGES WITHOUT A LICENSE (FELONY)
      IV. MAINTAINING A PLACE WHERE ALCOHOLIC BEVERAGES ARE SOLD WITHOUT A LICENSE (FELONY)

      . Section 562.12(1) provides:
      562.12 Beverages sold with improper license, or without license, or held with intent to sell prohibited.—
      (1) It is unlawful for any person to sell alcoholic beverages without a license, and it is unlawful for any licensee to sell alcoholic beverages except as permitted by his license, or to sell such beverages in any manner except that permitted by his license; and any licensee or other person who keeps or possesses alcoholic beverages not permitted to be sold by his license, or not permitted to be sold without a license, with intent to sell or dispose of same unlawfully, or who keeps and maintains a place where alcoholic beverages are sold unlawfully, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

      . Section 562.45(1) provides:
      562.45 Penalties for violating Beverage Law.—
      (1) Any person willfully and knowingly making any false entries in any records required under the Beverage Law or willfully violating any of the provisions of the Beverage Law, concerning the excise tax herein provided for shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. It is unlawful for any person to violate any provision of the Beverage Law, and any provision of the Beverage Law for which no penalty has been provided shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; provided, that any person who shall have been convicted of a violation of any provision of the Beverage Law and shall thereafter be convicted of a further violation of the Beverage Law, shall, upon conviction of said further offense, be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.-084.

      .Section 812.014 provides in part:
      812.014 Theft.—
      (1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
      (a) Deprive the other person of a right to the property or a benefit therefrom.
      (b) Appropriate the property to his own use or to the use of any person not entitled thereto.
      (2)(a) If the property stolen is of the value of $20,000 or more, the offender shall be guilty of grand theft in the first degree, punishable as a felony of the second degree, as provided in ss. 775.082, 775.083, and 775.084.
      (b) It is grand theft of the second degree and a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and 775.084, if the property stolen is:
      1. Valued at $100 or more, but less than $20,000.

      (c) Theft of any property not specified in paragraph (a) or paragraph (b) is petit theft and a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Upon a second conviction for petit theft, the offender shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.-082 or s. 775.083. Upon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and 775.084.

      . Section 810.02 provides in part:
      810.02 Burglary.—
      (1) "Burglary" means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
      (2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.-084, if, in the course of committing the offense, the offender:
      (a) Makes an assault or battery upon any person.

      . Unlike this case, the defendants in Lindsey had filed motions to dismiss which were denied.

      . The failure to cite the particular statute which the defendant is alleged to have violated is not grounds for dismissal if such omission did not mislead the defendant to his prejudice. Fla.R. Crim.P. 3.140(d)(1). In this case the omitted statutory citation was not the statute appellant allegedly violated but was the statute elevating the violation to a felony.

      . At issue in both Postell and Collins was the admissibility of hearsay statements, the inescapable inferences of which were that a non-testifying witness had furnished the police with direct evidence of the defendants' guilt. In this case, the statement that the police had information that alcoholic beverages were being sold "in the area” is comparatively innocuous.


source: Caselaw Access Project

author: ZEHMER, Judge.

license: Public Domain

text:
    Michael HOUCK, Appellant, v. GUETTLER & SONS and Aetna Insurance Company, Appellees.
    No. AW-295.
    District Court of Appeal of Florida, First District.
    June 13, 1984.
    J. David Parrish of Hurt & Parrish, P.A., Orlando, for appellant.
    James M. Hess and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appel-lees.
   ZEHMER, Judge.

Claimant appeals from the deputy commissioner’s order denying his claim for $631 in travel expenses incident to taking depositions in Greenville, South Carolina. That such expenses are not ordinarily recoverable as taxable costs is too well established to require citation. Claimant has not shown that the deputy failed to follow the correct rule of law under the circumstances of this case. The circumstances shown do not warrant recovery under the holding in S & H Fabricating v. Wamley, 423 So.2d 435 (Fla. 1st DCA 1982). Claimant’s appeal is completely lacking in merit, and this provision of the order is affirmed.

The employer and carrier cross-appeal the deputy’s order awarding claimant a $350 attorney’s fee based on the estimated cost of employing a South Carolina attorney to attend the depositions. In a joint stipulation, claimant agreed with the employer and carrier to $10,000 as reasonable compensation for all services by claimant’s attorney in this case. The stipulation recited that “the parties have considered the amount of benefits obtained, the time spent, the novelty of the issues involved in [sic] the complexity of the case.” Claimant subsequently filed his claim for extraordinary travel expenses incurred for the South Carolina depositions. The filing of that claim, properly disallowed, did not authorize the deputy to go beyond the parties’ stipulation and award claimant additional attorney’s fees in lieu of the claimed expenses.

AFFIRMED IN PART AND REVERSED IN PART.

SMITH and JOANOS, JJ., concur.


author: PER CURIAM.

text:
    Albert P. ELEBASH, Jr., Appellant, v. Judy H. ELEBASH, Appellee.
    No. 83-91.
    District Court of Appeal of Florida, Fifth District.
    June 14, 1984.

      Donald J. Sasser of Johnston, Sasser, Randolph & Weaver, West Palm Beach, for appellant.
    Walter T. Rose, Jr., of Rose & Weller, Cocoa Beach, for appellee.
   PER CURIAM.

This case involves “shared parental responsibility” under section 61.13, Florida Statutes (1983).

As it had the authority to do, the trial court declined to follow a marital settlement agreement between the parties re: lating to child custody, visitation and support. The agreement provided for joint custody with the children’s actual physical residence to alternate or rotate or shift between the parties every other weekday and every other weekend. The final judgment dissolving the marriage awarded the care, custody, and control of the minor children to the mother and then contained the following three paragraphs:

Custody as herein adjudicated shall be construed to mean ultimate responsibility over specific aspects of the children’s welfare as follows: primary physical residence, which shall be with the custodial parent; education; medical, dental and other remedial care, both emergency and elective; discipline and rules of conduct; religious training; clothing and manner of dress; social and recreational planning and participation. The Court finds said assignment of responsibilities to be necessary in this particular family and in the best interests of the children.
Other than as set forth herein the parties shall continue to share the rights and responsibilities of child rearing, the Court finding that such shared parental responsibility is in accordance with the best interest of the children.
Both Petitioner and Respondent as parents of the children herein named, owe a duty of financial support, to contribute toward the physical necessities and needs of the minor children, which is shared parental responsibility, any language contained in Chapter 409, Florida Statutes, to the contrary notwithstanding.

The father appeals and argues that placing the ultimate responsibility on the wife as to the most important aspects of child rearing violated section 61.13, Florida Statutes (1983). We cannot agree. Section 61.13(2)(b)2.a. expressly provides that in ordering shared parental responsibility the court may grant one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those aspects between the parties based on the best interests of the child. The shared parental responsibility statute states some new philosophy, codifies and clarifies some existing legal concepts as to the.responsibilities of both parents to their children but does not abrogate or overrule prior case law relating to judicial discretion and the various aspects of the specific needs of children and the many alternative methods of making legal provision for their needs. Even under the statutory provision for shared parental responsibility the controlling and guiding rule is still the best interests and welfare of the child and the trial court still exercises a judicial discretion in determining what is best and how it can best be achieved in the particular case based on the evidence presented.

Neither do we find that the trial court abused its discretion. Despite the close proximity of the two residences in question and the fact that the children had been rotating their residences, sometimes on a daily basis, there was ample evidence to support the trial judge’s finding that the plan sought by the father and provided in the settlement agreement “to achieve a near mathematically equal division of the children’s lives, moving them back and forth on a daily basis in order to enjoy a ‘joint custody,’ deprives them of that stability, security, and comfort which is so necessary in the lives of young children and which is associated with the home and the order and discipline of one single authority.”

The shared parental responsibility statute does not mandate that the physical residence of the minor children be rotated between parents and such rotation is presumptively not in the best interest of children. See Frey v. Wagner, 433 So.2d 60 (Fla. 3d DCA 1983). Also see Strickland v. Wedekind, 436 So.2d 250 (Fla. 5th DCA 1983); Alonso v. Alonso, 432 So.2d 174 (Fla. 3d DCA 1983).

The final judgment in this case shows the careful and conscientious consideration of the trial judge of both the provisions of the shared parental responsibility statute and of the best interests' and welfare of the children in this case and we specifically approve it. We expressly hold that the shared parental responsibility statute does not eliminate, or limit, the trial court discretion to provide for the best interest and welfare of children as to their custody, visitation, and support. We again hold that the ultimate test in determining the custody award is the best interests and welfare of the child as contemplated by section 61.13(2)(b)2.a. and (3), Florida Statutes (1983), and that when the trial judge’s discretion relating to custody has been exercised in a reasonable manner it should not be disturbed on appeal. See Gorman v. Gorman, 400 So.2d 75 (Fla. 5th DCA 1981). Neither do we find an abuse of discretion in setting the amount of child support, in not now setting the exact time of termination of child support, in not requiring the wife to remain in a certain location for five years or in awarding attorney’s fees.

AFFIRMED.

ORFINGER, C.J., COWART, J., and WATSON, R.O., Associate Judge, concur.

      . Query. Does the last sentence in section 61.-13(2)(b)l. limit section 61.13(3)(j) and prohibit the trial judge in determining custody to consider the age of the child as a relevant factor? Does this abolish the “tender years" doctrine?

      . Whether a child is a dependent beyond the age of 18 years should be determined by the court, if requested, at the time of attainment of majority by each child. Cyr v. Cyr, 354 So.2d 140 (Fla. 2d DCA 1978).


author: DAVIS, S. JOSEPH, Jr., Associate Judge.

text:
    Lawton GAY, Appellant, v. Don R. MORELAND, etc., Appellee.
    No. 83-545.
    District Court of Appeal of Florida, Fifth District.
    June 14, 1984.

      William N. DeCarlis, P.A., Gainesville, for appellant.
    John M. Green, Jr., of Green, Simmons, Green, Hightower' & Gray, P.A., Ocala, for appellee.
   DAVIS, S. JOSEPH, Jr., Associate Judge.

This is an appeal from a final order of forfeiture of a motor vehicle under the provision of section 932.704, Florida Statutes (1981).

The appellee Sheriff of Marion County, on December 17, 1982, filed a complaint requesting the trial court to issue a rule to show cause why a 1979 Ford Thunderbird automobile should not be forfeited to the Appellee. The complaint alleged the automobile was used as an instrumentality in a kidnapping and aggravated assault. An affidavit in support of the complaint asserted that appellant Gay, while occupying the described vehicle in Marion County forced one James Dye at gun point to return to Sumter County where he was chained to a tree, beaten and robbed.

Notice of forfeiture proceedings pursuant to section 932.704(2), Florida Statutes (1981) was published in the Ocala Star Banner and mailed to appellant Gay, advising that appellee would appear before the trial judge on February 2, 1983, for the purpose of filing a rule to show cause why the vehicle should not be forfeited upon proof that it was used in violation of Florida laws dealing with contraband.

A hearing was held on February 2, 1983, at which no one appeared or filed responsive pleadings on behalf of the appellant. On February 4, 1983, the trial court entered final order of property forfeiture finding that (1) the vehicle was used in violation of the forfeiture provisions of section 932.704, Florida Statutes (1981), and (2) proper notice pursuant to section 932.-704(2), Florida Statutes (1981) was given to appellant and all others claiming an interest in the property and that neither the appellant nor any other claimant appeared to assert a claim or interest in the vehicle; and then entered a default against all parties claiming an interest in the automobile and forfeited it to appellee.

On March 1, 1983, appellant filed a motion to set aside the order of forfeiture claiming it was void because (1) no order on the rule to show cause was issued, (2) of misrepresentation in the appellee's affidavit supporting forfeiture, (3) a valid defense existed, and (4) of excusable neglect in responding to complaint and notice. Attached to the motion was a proper answer denying that the vehicle was used in violation of the forfeiture statute. The court denied this motion.

Appellant received the complaint and notice while he was in jail under $500,000 bond on various criminal charges. According to appellant’s testimony, he assumed these papers related to the criminal charges pending against him and that his attorneys had received copies which were filed by him with 300 to 400 sheets of other papers in his possession at the jail relating to the pending criminal charges.

The appellant now asserts the default should be set aside because (1) he had a meritorious defense and excusable neglect; (2) there was misrepresentation in the appellee's affidavit. As to the second point, the affidavit contained apparent hearsay but no fraud or misrepresentation is shown because the affiant qualified his statement by stating “... the information contained within this affidavit is either known by the undersigned or is based upon the undersigned’s investigation and supported by evidence addressed during such investigation.” It is obvious from the affidavit that the affiant obtained the information as to use of the vehicle from a source other than first hand knowledge.

A trial court may properly grant a motion to vacate a default judgment where the movant establishes a meritorious defense and legal excuse for failure to comply with Fla.R.Civ.P. 1.500(b). An absence of either precludes the setting aside of the default judgment. L.B.T. Corp. v. Camacho, 429 So.2d 88 (Fla. 5th DCA 1983); T.P.M. Constructors, Inc. v. Twin Coast Title, Inc., 425 So.2d 580 (Fla. 5th DCA 1982), rev. denied, 434 So.2d 889 (Fla.1983). A showing of gross abuse of discretion is necessary on appeal to justify reversal of a lower court’s ruling on a motion to vacate a default judgment. Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977); L.B.T.; T.P.M.

Appellant’s answer denying the allegation that the car was involved in the criminal activity and the record showing appellant may have had two similar vehicles and that the Sheriff had seized the wrong one established a meritorious defense. The remaining question then is whether appellant’s negligence in taking no action on the forfeiture papers which were delivered to him in jail constitutes excusable neglect.

The role of the appellate court in determining whether the trial court erred in ruling on a motion to vacate was stated by the Second District in Garcia Ins. Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla. 2d DCA 1977), as follows:

Our task is to successfully combine two deeply-held propositions under Florida law: That there exists a “long-standing policy of liberality towards vacating of defaults” — North Shore Hospital, Inc. v. Barber, 143 So.2d 849, 852 (Fla.1962); and, that “a showing of gross abuse of a trial court’s discretion is necessary on appeal to justify reversal of the lower court’s ruling on a motion to vacate [a default].”

See also B.C. Builders Supply Co., Inc. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981).

In the instant case, excusable neglect can be seen in appellant’s confusion over the forfeiture documents. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Renuart-Bailey-Cheely Lumber and Supply Co. v. Hall, 264 So.2d 84 (Fla. 3d DCA 1972). Since the forfeiture relates to the criminal charges, it can easily be seen that confusion would arise. Appellant’s misapprehension is akin to that one misplacing a document, which has been held to be sufficient to allow for excusable neglect. These factors, combined with the fact that appellant acted diligently in moving to vacate the default when he found out about it and his presentation of a meritorious defense lead to the conclusion that the trial court abused its discretion, and that the order denying the motion to vacate should be reversed.

Even if the trial court did not abuse its discretion, it should not have entered the default and final judgment, because the appellant did not fail to comply with Fla.R. Civ.P. 1.500(b) in that he was not required to plead or defend by Florida Rules of Civil Procedure, statute, or order of court. In reaching this conclusion, we must examine the procedural requirements of section 932.704, Florida Statutes (1981), which heretofore have been unclear, but have now been clarified by recent appellate decisions.

This court in the case In Re: Forfeiture of One 1976 Chev. Corvette, 442 So.2d 307 (Fla. 5th DCA 1983), adopted detailed procedures for forfeiture actions which were enumerated in two cases, In Re: Forfeiture of United States Currency in the Amount of $5,300, 429 So.2d 800 (Fla. 4th DCA 1983), and In Re: Forfeiture of Appx. $48,900 in U.S. Currency, 432 So.2d 1382 (Fla. 4th DCA 1983).

In the case of In Re: Forefeiture of United States Currency in the Amount of $5,300, the court set out the following procedures for forfeiture actions:

[Fallowing all the statutory notice requirements, the seizing agency should file a verified petition for a rule to show cause with the appropriate circuit court. The petition should be drawn in accordance with the provisions of Florida Rule of Civil Procedure 1.110(b). The seizing agency should then apply to the court ex parte for the issuance of the rule. If the petition states a cause of action for forfeiture the rule should issue without the necessity of taking testimony. The rule to show cause should be served on all persons claiming ownership as well as those claiming a security interest, along with a copy of the petition for rule to show cause. It should require those persons claiming an interest in the property to file a responsive pleading and to appear at time and place certain to show cause why the property should not be forfeited. The responsive pleading should admit or deny or explain the petition’s material allegations and should assert any affirmative defenses, all as provided by Florida Rule of Civil Procedure 1.110(c) and (e). Failure to respond will entitle the seizing authority to default as provided by Florida Rule of Civil Procedure 1.500. It is at that time that the forfeiture hearing will take place with respective parties presenting their evidence in accordance with the issues drawn by the pleadings with recognition of their respective burdens of proof, [emphasis supplied].

429 So.2d at 803.

The appellant was never served with a rule to show cause issued by the trial court nor afforded the opportunity to file responsive pleadings or appear and show cause why the vehicle should not be forfeited, and was therefore, denied procedural due process.

The judgment of forfeiture is reversed and this cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED

ORFINGER, C.J., and COWART, J., concur.


author: ORFINGER, Chief Judge.

text:
    DECO PURCHASING & DISTRIBUTING CO., INC., Appellant/Cross-Appellee, v. Mary PANZIRER, Individually, Appellee/Cross-Appellee, and Harry A. Ward, III, as Successor Personal Representative of the Estate of Jay Robert Panzirer, Appellee/Cross-Appellant, and Florida National Bank at Orlando, N.A., Appellee.
    No. 83-567.
    District Court of Appeal of Florida, Fifth District.
    June 14, 1984.

      Davisson F. Dunlap and Robert L. Young of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Orlando, for appellant/ cross-appellee.
    Frank G. Finkbeiner of Carr & Finkbeiner, P.A., Orlando, for appellee/cross-appel-lee Panzirer.
    C. Brent McCaghren of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for appellee/cross-appellant Ward.
    No appearance for appellee Florida Nat. Bank.
   ORFINGER, Chief Judge.

This appeal is from a final judgment in favor of defendant, Mary Panzirer on a claim for restitution filed by plaintiff, Deco Purchasing & Distributing Co., Inc. Because we find a total absence of competent, substantial evidence to support the trial court’s judgment, we reverse.

It is clear and uncontradicted that Jay Panzirer requested and received from Deco an advance of his monthly consulting fee for April, May and June, 1982. He died on March 31, 1982, before the check for the advance was written, and before he was able to render any services for which the fee was paid. The check was received by Panzirer’s secretary after his death, and in accordance with his instructions, was deposited into an account in the joint names of Panzirer and his wife Mary, the appellee here.

One who contracts to render personal services is discharged by death from rendering such services, but restitution must be made of all monies paid to him in advance for the period in which the agreed services had not been rendered. 6 Corbin on Contracts, § 1368. Because Panzirer died on March 31, and the advance was for three months beginning April 1, no services were or could be rendered, and Deco is entitled to restitution. There was a complete failure of consideration, and in such instance, restitution of the monies paid is a proper remedy. Southeast First National Bank v. Taines, 339 So.2d 275 (Fla. 3d DCA 1976).

Whether the action be referred to as one for restitution or one for “money had and received,” an action may, in general, be maintained whenever one has money in his hands belonging to another which in equity and good conscience, he ought to pay over to that other. Moss v. Condict, 154 Fla. 153, 16 So.2d 921 (1944); First State Bank of Fort Meade v. Singletary, 124 Fla. 770, 169 So. 407 (1936); Moore Handley, Inc. v. Major Realty Corporation, 340 So.2d 1238 (Fla. 4th DCA 1976). Because the check was deposited to an account owned jointly by Jay Panzirer and his wife Mary, she now has the funds which rightly belong to Deco.

The judgment is reversed and the cause is remanded with directions to enter judgment for Deco. In the light of this ruling, the cross appeal by the successor personal representative of Jay Panzirer’s estate agreeing that the money does not belong to Mary but contending that it is an asset of the estate, is moot.

REVERSED and REMANDED.

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


author: COBB, Judge. COWART, Judge,

text:
    Buford A. GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1228.
    District Court of Appeal of Florida, Fifth District.
    June 14, 1984.

      Buford A. Green, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

The defendant, Buford A. Green, filed a pro se motion dated July 13, 1983, with the trial court “pursuant to Rule 3.800(a) and/or 3.850, Florida Rules of Criminal Procedure,” asking that his credit for 407 days served be applied to two concurrent sentences rather than merely one. He asserted this failure by the trial court rendered the sentence illegal. This motion was denied by an order dated July 19, 1983, with the trial court expressly finding that the 407 days were credited to the sentence in a companion case.

The state does not challenge the timeliness of this appeal; however, the dissent does. The certificate of service on the July 19, 1983, order is undated. Assuming, arguendo, that the trial judge mailed the order to the defendant on the same day, said defendant had through August 6, 1983, to move for a rehearing — fifteen days under Rule 3.850, which expressly provides for rehearing of denial of a motion thereunder, and three more days under Florida Rule of Criminal Procedure 3.070, or a total of eighteen days.

On August 5, 1983, the defendant filed with the trial court a “Motion for Clarification of Sentence,” setting forth an elaboration of the original motion. A fair reading of this pro se motion requires that it be construed as a motion for rehearing. The motion for rehearing, therefore, was timely and tolled the rendition date of the order of July 19, 1983. The trial court, by order rendered on August 10, 1983,' denied the “Motion for Clarification of Sentence” and the appellant filed a timely notice of appeal with this court on August 19, 1983. We, therefore, consider the appeal on the merits.

In the recent case of Martin v. State, 452 So.2d 938 (Fla. 2d DCA 1984), it was held that where a defendant receives jail time credit on one concurrent sentence, he must receive it on the other. The authority cited in Martin for that proposition is Bevins v. State, 412 So.2d 456 (Fla. 2d DCA 1982), which dealt merely with the miscalculation of credit time in a case where the trial court clearly intended dual credit time.

We covered this point in our en banc opinion in Amlotte v. State, 435 So.2d 249 (Fla. 5th DCA 1983), wherein we said:

We cannot agree with the appellant that concurrent sentences for identical terms of years compel presentence jail time credit on each sentence. Nothing in section 921.161, Florida Statutes (1981), requires, or even suggests, this construction. We held in Fenn v. State, 418 So.2d 286 (Fla. 5th DCA 1982), that where there are two sentences for two crimes, the credit for presentence jail time need not be allocated to both of those sentences. We made no attempt in Fenn to distinguish between consecutive and concurrent sentences.
The appellant’s reliance on the Florida Supreme Court case of Jenkins v. Wainwright, 285 So.2d 5 (Fla.1973), is misplaced. The sentence in that case, which was imposed at a time when the granting of credit for time served was discretionary with the trial judge, was ambiguous, and the Supreme Court’s opinion merely dealt with the reasonable interpretation of the intent of the sentencing judge. In the instant case, the intent is unambigu-ous_

435 So.2d at 252. See also Miller v. State, 297 So.2d 36 (Fla. 1st DCA 1974).

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

On July 15, 1983, appellant filed a “Motion to Allow Credit for Jail Time.” See § 921.161(1), Fla.Stat. The motion alleged it was under Rule 3.800(a) “and/or” 3.850, Florida Rules of Criminal Procedure. The motion also alleged that the sentencing court gave appellant credit for the 407 days confinement in jail against a sentence in case number 81-919-CFJ, but that appellant wanted credit for the same 407 days jail time against a concurrent sentence imposed in a companion case (No. 81-1087-CFJ). The trial judge promptly denied the motion by a final and appealable order dated and rendered July 19, 1983. On August 5, 1983, appellant filed a “Motion for Clarification of Sentence,” again arguing for credit for the 407 days jail time against the sentence in case number 81-1087-CF. The trial judge promptly denied that motion by order rendered August 10, 1983. On August 19, 1983, appellant filed his notice of appeal of the order of July 19, 1983.

The motion for jail time credit was properly filed under Rule 3.850, not 3.800(a), therefore, it is appealable under Rule 9.140(g), which rule provides the appeal shall be commenced as prescribed in Rule 9.110. The latter rule provides that the jurisdiction of this court is invoked by filing a notice of appeal with the clerk of the lower tribunal within thirty days of rendition of the order to be reviewed. Excluding the day of the act or event from which the designated period of time begins to run, that is, July 19, 1983 (the date the order to be reviewed was rendered), the last day of the thirty day appeal period included August 18, 1988, which was not a Saturday, Sunday or legal holiday. Accordingly, the notice of appeal filed August 19, 1983, was untimely and ineffective to invoke the jurisdiction of this court and this appeal should be dismissed.

In order to avoid this conclusion and to reach the merits the majority opinion construes defendant’s “Motion for Clarification of Sentence” to be “a timely motion for rehearing” of the appealed order dated July 19,1983, so that under Florida Rule of Appellate Procedure 9.020(g) the order of July 19, 1983, will not be deemed rendered until disposition of the “Motion for Clarification of Sentence” which occurred when the latter order was denied by order dated August 10, 1983. The defendant’s “Motion for Clarification of Sentence” dated August 3, 1983, and filed August 5, 1983, is set forth in full below. The question is: Can that document be fairly read to be intended to seek a rehearing of the appealed order of July 19, 1983, or is it an independent motion made for the purpose of requesting the trial court to issue an order directing the Department of Corrections to accept and treat the original sentence in ease number 81-1087-CF as credited with 407 days of county jail time credit?

Florida Rule of Appellate Procedure 9.020(g) defers rendition of orders for appeal purposes only when “an authorized and timely motion” for certain specified judicial relief, has been filed in the lower trial tribunal. Rule 3.020 authorizes the criminal rules to be construed to secure simplicity in procedure but that rule does not “authorize” the use of motions not authorized by the criminal rules themselves in order to defer rendition under Rule 9.020(g).

The defendant’s “Motion for Clarification of Sentence,” which the majority opinion calls a motion for rehearing, is not a motion for rehearing, not adequate to defer rendition of the appealed order, and not effective to postpone expiration of the time for appeal in this case. Accordingly, this court does not have jurisdiction and this appeal should be dismissed.

      . By prior order of this court, requested by appellant, we treated this appeal as one from the summary denial of a 3.850 motion. See Fla.R.App.P. 9.140(g). We know of no reason why an illegal sentence violative of section 921.-161(1), Florida Statutes (1983), could not be attacked at the trial level by either a 3.850 motion or a 3.800(a) motion.

      . Rule 3.850 provides in pertinent part:
      The prisoner may file a motion for rehearing of an order denying a motion under this rule within fifteen days of the date of service of the order. The clerk of the court shall promptly serve upon the prisoner a copy of any order denying a motion for post-conviction relief or denying a motion for rehearing noting thereon the date of service by an appropriate certificate of service.

        See Williams v. State, 392 So.2d 323 (Fla. 1st DCA 1980), petition for review dismissed, 399 So.2d 1147 (Fla.1981).

      . Rule 3.070 states:
      Additional Time after Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period.

      . See Fla.R.Crim.P. 3.020.

      . A defendant is entitled to both a legal sentence and to credit for jail time credit under § 921.-161(1), Fla.Stat. Both Rule 3.800(a) and Rule 3.850 are appropriate for the correction of an illegal sentence. A motion under Rule 3.850 is also appropriate to secure jail time credit. Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981). However, because Rule 3.800(a) relates only to the correction of an illegal sentence it is not appropriate as the basis for a motion to secure jail time credit against a legal sentence. An illegal sentence is a sentence not authorized by law. Section 921.161, Florida Statutes, merely provides that a defendant is entitled to certain credits on his sentence. Failure to give such statutory credits against a lawful sentence does not cause that legal sentence to become an illegal sentence. An illegal sentence should be vacated, not credited with jail time. Jail time credit is appropriate only against a legal sentence. Calling a legal sentence that is entitled to credit an "illegal” sentence does not make it an "¡llegar sentence.

      . The defendant’s motion is as follows:
      MOTION FOR CLARIFICATION OF SENTENCE
      COMES NOW the Defendant, BUFORD A. GREEN, pro se, and hereby moves this Honorable Court as aforesaid, alleging the following in support thereof:
      1. That according to Judgment and Sentenced papers filed in open Court April 28, 1983, Defendant was sentenced to five years in the above-styled cause, with credit for 407 days for time he had been incarcerated prior to imposition of said sentence. The two case numbers in this cause were consolidated into one single count for sentencing purposes.
      2. That according to Defendant’s records maintained by the Florida Department of Corrections at the place of Defendant’s incarceration, Reception & Medical Center at Lake Butler, Florida, there are to (sic) sets of Judgment and Sentence papers in Defendant's file relating to this cause. One set is identical to that heretofore described. However, the other set imposes sentences for two counts, one for each case number, of five years each, to run concurrently. Credit for 407 days of prior incarceration is given for Case No. 81-919-CF, but no credit is given for Case No. 81-1087-CF.
      3. That the Department of Corrections, in establishing Defendant’s release date from incarceration, is using the second-described set of Judgment and Sentence papers, which has the effect of denying Defendant credit for such jail time as he has spent in conjunction with Case No. 81-1087-CF, and is in violation of the intent of the Court in this cause.
      4. That the action by the Department of Correction in using the second-described set of Judgment and Sentence papers serves to wreak great hardship on the Defendant, and prevents him from consideration for such available programs as work release for an additional 407 days, in violation of the intent of this Court in sentencing the Defendant.
      5.That the Defendant has served 407 days in connection with Case No. 81-1087-CF, the large part in regard to a one year period of incarceration as a condition of Defendant’s probation on this charge, the violation of which -is the cause of Defendant’s present incarceration.
      WHEREFORE, Defendant prays this Honorable Court to issue an Order directing the Florida Department of Corrections to accept as valid the Judgment and Sentence papers filed in this Court on April 28, 1983, imposing a single five year sentence in the above-styled cause, with credit for prior time incarcerated in the amount of 407 days.
      Respectfully submitted,

        /%/ Buford A. Green BUFORD A. GREEN Defendant, pro se.

      .It is reported that Abraham Lincoln liked to ask, "if you called a dog’s tail a leg, how many legs would a dog have?” When the answer was "five,” Lincoln would reply: “No; a dog has four legs — calling a dog’s tail a leg does not make it a leg!” In referring to the fact that the law always looks to the truth and the substance of a thing and not its name or form the Florida Supreme Court in Underwood v. Underwood, 64 So.2d 281, 288 (Fla.1953), stated, "it is not what it is called but what it is that fixes its legal status. It is the substance and not the form which is controlling.” There is a moral in Lincoln’s little joke and legal principle in the quote from Underwood. Also see Jones v. State, 423 So.2d 520 (Fla. 5th DCA 1982).

      . Unauthorized motions do not delay rendition of orders. See Crippen v. Sunland Center, 372 So.2d 63 (Fla.1979); Joseph v. State, 437 So.2d 245 (Fla. 5th DCA 1983); Smith v. Weede, 433 So.2d 992 (Fla. 5th DCA 1983); Manna Provisions Co. v. Blume, 417 So.2d 832 (Fla. 1st DCA 1982); City of Melbourne v. Floyd, 415 So.2d 758 (Fla. 5th DCA 1982); Hofer v. Gil De Rubio, 409 So.2d 527 (Fla. 5th DCA 1982); Guzman v. State, 364 So.2d 523 (Fla. 2d DCA 1978).


author: THOMPSON, Judge.

text:
    John PETTWAY, Petitioner, v. Louie L. WAINWRIGHT, as Secretary, Department of Corrections, Respondent.
    No. AY-387.
    District Court of Appeal of Florida, First District.
    June 15, 1984.
    John Pettway, petitioner, pro se.
    Shirley A. Walker, Asst. Atty. Gen., Tallahassee, for respondent.
   THOMPSON, Judge.

Pettway filed a “Petition for Judicial Review of Administrative Action” seeking review of action taken by the Department of Corrections (DOC) which denied him incentive gain-time during the last 45 days of his incarceration and thereby extended his incarceration by approximately 20 days. We treated this petition for review as a petition for writ of mandamus/habeas corpus and ordered the DOC to show cause why the petition should not be granted. After considering DOC’s response and Pettway’s reply thereto on May 24, 1984, we granted the petition for writ of habeas corpus and ordered the DOC to release Pettway. At that time we stated that this opinion would follow.

DOC contends that the grant of incentive gain-time is optional, not mandatory, because § 944.275(4)(b), Fla.Stat. (1983), states that the DOC “may” grant incentive gain-time. DOC therefore contends that under the statute it has discretion to award or not to award incentive gain-time. While it is true that the statute is not mandatory and the DOC may deny incentive gain-time, the DOC must uniformly grant or deny incentive gain-time unless there is some justification and authority for classifying and treating some prisoners different from other prisoners. The DOC argues that it needs a cut-off date for granting incentive gain-time in order to determine a definite release date sufficiently in advance of a prisoner’s release and in order to properly prepare for the prisoner’s release. While this might be a justifiable basis for adopting a rule authorizing such a procedure, no such rule has been adopted. Until the DOC adopts a rule in accordance with the Administrative Procedure Act and affected parties have had an opportunity to contest the validity of such a rule, the DOC is without authority to arbitrarily deny incentive gain-time to prisoners during their last month or more of incarceration.

ERVIN, C.J., and WIGGINTON, J„ concur.


text:
    STATE of Florida, Appellant, v. Bobby L. DIXON, Appellee.
    No. 83-2038.
    District Court of Appeal of Florida, Second District.
    June 15, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    No appearance for appellee.
   PER CURIAM.

Appellant, State of Florida, contends that the trial court erred by granting the motion to dismiss Count I of the amended information. We agree.

Appellee, Bobby L. Dixon, was charged by amended information with trafficking in drugs in Count I, possession and sale of a controlled substance in Counts II and III, and conspiracy to traffic in Count IV. Defense counsel filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The state filed a traverse specifically denying paragraphs six, seven, nine and ten of the motion to dismiss. Those paragraphs related only to the material elements of Count I. The trial court granted the motion to dismiss as to Count I with leave for the state to file an amended traverse. The state filed a motion for rehearing and an amended traverse. Upon reconsideration, the trial judge commented that he had accepted guilty pleas on Counts II, III and IV, and that those pleas might be withdrawn if the court changed its ruling on Count I. The trial judge also noted that appellee maintained his innocence as to Count I, although he had admitted guilt on the other counts. The trial court then reaffirmed the dismissal of Count I.

When a defendant files a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), and the state, in response, files a traverse which places the factual issues in dispute, the trial court is obligated to deny the motion to dismiss. State v. Cook, 354 So.2d 909 (Fla.2d DCA 1978), cert. dismissed, 359 So.2d 1212 (Fla.1978); State v. Power, 369 So.2d 96 (Fla.2d DCA 1979); Fla.R.Crim.P. 3.190(d) (1984).

Here, in response to a motion to dismiss, the state filed a traverse and an amended traverse which were sufficiently specific so as to create a factual dispute. Therefore, the motion to dismiss Count I of the information should have been denied in this case. It appears that the trial judge dismissed Count I based on circumstances outside of the traverse; namely, the possibility that the defendant’s guilty pleas would be withdrawn.

For the foregoing reasons, we reverse and remand to the trial court for proceedings in accordance with this opinion.

HOBSON, A.C.J., and GRIMES and CAMPBELL, JJ., concur.


author: PER- CURIAM.

text:
    Charles P. ZAFFARESE, Appellant, v. STATE of Florida, Appellee.
    No. 82-1663.
    District Court of Appeal of Florida, Fourth District.
    June 20, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER- CURIAM.

Zaffarese was convicted of possession of cannabis in an amount exceeding 20 grams under section 893.13(l)(e), Florida Statutes (1983). He was sentenced to five years in prison and ordered to pay a $5,000 fine pursuant to section 775.0835, Florida Statutes (1983). We find the various points on appeal to be without merit and therefore affirm the conviction and sentence of incarceration.

However, we strike the fine imposed under section 775.0835, as that statute applies only when a person is convicted of a crime resulting in death or injury to another person. See Moore v. State, 422 So.2d 1069 (Fla. 2d DCA 1982). Recognizing that the trial court would have authority under section 775.083(l)(c) to impose a $5,000 fine against Zaffarese, who was convicted of a third degree felony, we remand this case to the trial court for resentencing in a manner consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART.

HURLEY and WALDEN, JJ., and NORRIS, WILLIAM A., Jr., Associate Judge, concur.


author: DANAHY, Judge.

text:
    Barbara URSIN, Appellant, v. LAW ENFORCEMENT INSURANCE COMPANY, LTD., a foreign corporation, Florida Sheriff's Self-Insurance Fund, Aubrey Rogers, individually and as Sheriff of Collier County, Florida, Al Beatty, individually and as Deputy Sheriff of Collier County, Florida, and George Snider, individually and as Deputy of Collier County, Florida, Appellees.
    No. 83-938.
    District Court of Appeal of Florida, Second District.
    June 20, 1984.
    John B. Cechman of Goldberg, Rubinstein & Buckley, Fort Myers, for appellant.
    Gayle Smith Swedmark of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellees Rogers, Beatty and Snider.
   DANAHY, Judge.

Once again we face the difficult task of determining whether sovereign immunity-bars recovery' by a plaintiff in a suit to recover damages for personal injuries. In this case, the plaintiff has sued the Sheriff of Collier County and two of his deputies. The trial judge held that sovereign immunity protects the defendants from liability in this case and dismissed the complaint with prejudice. In so holding, the trial judge followed the precedents established by this court. Based on those precedents, we affirm.

Since this case was decided on a motion to dismiss, we treat all allegations of the complaint as true. The plaintiff was kid-naped and sexually molested by a man named Earl Baumgardt. In January of 1978, Baumgardt was sentenced to a total of twenty years in prison as a result of his convictions for rape, kidnaping and robbery. He was then committed to the Mentally Disordered Sex Offenders (MDSO) program.

In the latter part of 1980, Baumgardt was returned to Collier County for a hearing on the clarification of his status as an MDSO. Thus he was returned to the custody of the Collier County Sheriff. While awaiting a hearing on his MDSO status, Baumgardt was made a trustee at the Collier County jail and assigned to the trustee kitchen detail. On January 13, 1981, he walked away and within minutes had kid-naped the plaintiff, who was an employee at the Collier County Courthouse. Baum-gardt forced the plaintiff to drive to Lee County, where he sexually molested her. The plaintiff has alleged that Baumgardt’s actions caused her grievous physical and emotional injuries.

The plaintiff’s complaint was in two counts. Count 1 alleged that Baumgardt was negligently assigned to a trustee kitchen detail by the defendant deputy sheriffs while Baumgardt was in the custody, care and control of the sheriff and these two deputies. Count 2 alleges that the Sheriff of Collier County negligently failed to instruct, supervise and control his deputies. All defendants filed motions to dismiss and their motions were granted by the trial judge who dismissed the case. This appeal followed.

We hold that sovereign immunity bars recovery by the plaintiff in this suit. We reach that conclusion based upon the decisions of this court in Rodriguez v. City of Cape Coral, 451 So.2d 513 (Fla. 2d DCA 1984); City of Cape Coral v. Duvall, 436 So.2d 136 (Fla. 2d DCA 1983) (review by supreme court pending); Everton v. Willard, 426 So.2d 996 (Fla. 2d DCA 1983) (review by supreme court pending). In reaching our decision, we acknowledge that it expressly and directly conflicts with the decision of our sister court in Smith v. Department of Corrections, 432 So.2d 1338 (Fla. 1st DCA 1983).

AFFIRMED.

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


author: HOBSON, Judge.

text:
    Lee Grant BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1257.
    District Court of Appeal of Florida, Second District.
    June 20, 1984.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James Dysart, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

Appellant, Lee Grant Butler, challenges the judgment and sentence finding him guilty of violating his probation. We affirm and remand.

On November 23, 1981, appellant was charged with one count of grand theft. He pled guilty to the charge. On August 9, 1982, the trial court adjudicated him guilty and placed him on probation for three years. Among other conditions of probation, appellant was ordered to:

(1) Not later than the fifth day of each month, you will make a full and truthful report to your Probation Officer on the form provided for that purpose.
(2) You will pay the State of Florida the amount of Ten Dollars ($10) per month toward the cost of your supervision unless otherwise waived in compliance with Florida Statutes.
(3) You will not change your residence or employment or leave the county of your residence without first procuring the consent of your Probation Officer.
(4) You will neither possess, carry or own any weapons or firearm without first securing the consent of your Probation Officer.
(5) You will live and remain at liberty without violating any law. A conviction in a court of law shall not be necessary in order for such a violation to constitute a violation of your probation.
(6) You will not use intoxicants to excess; nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used.
(7) You will work diligently at a lawful occupation and support any dependents to the best of your ability, as directed by your Probation Officer.
(8) You will promptly and truthfully answer all inquiries directed to you by the Court or the Probation Officer, and allow the Officer to visit in your home, at
.your employment site or elsewhere, and you will comply with all instructions he may give you.

On October 15, 1982, an affidavit was filed alleging that appellant had violated his probation. A supplemental affidavit followed. It was alleged in these affidavits that appellant violated the following conditions of his probation: (1) failing to submit monthly reports; (3) changing residence without permission; (5) driving while intoxicated and with a suspended license; being charged with aggravated battery upon Angela Whitest; being charged with aggravated battery and obstruction by false information (for which he was later tried in circuit court case No. CF82-3651); and (8) failing to report to his probation officer after having been so directed.

On April 26, 1983, at the revocation hearing the trial court indicated that Butler was guilty of violating conditions (5) and (6) of his probation by the obstruction by false information “by his own admission” and by drinking at an unlicensed liquor house. The court orally pronounced that Butler’s probation was being revoked on the basis of the violation of condition (5), to wit, obstruction by giving false information. However, the written order of revocation probation indicates that appellant violated the conditions of his probation by (1) failing to submit monthly reports; (3) changing residences without permission; (5) living at liberty without violating any law in that petitioner was arrested on 10/1/82 and charged with DWI and driving with a suspended license; and (8) failing to report to his probation officer after being so directed. After revoking Butler’s probation, the court sentenced him to four years imprisonment with credit for time served.

Appellant’s counsel, concluding that there was no meritorious argument to support the contention that the trial court committed reversible error, filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, within the brief, appellant’s counsel points out that certain technical errors, none of which affect the outcome of this case, appear in the trial court’s written order revoking appellant’s probation. We agree.

First, the record indicates that no evidence of the violation stated in the written order revoking appellant’s probation was presented at the hearing; rather, it appears that the court relied on appellant’s testimony and other evidence concerning unlawful drinking and obstruction by false information presented at appellant’s trial in circuit court case No. CF82-3651. Thus, we remand this cause to the trial court to correct the written order by omitting these violations as the basis of appellant’s revocation of probation. See Geri v. State, 415 So.2d 782 (Fla. 1st DCA 1982).

Second, the trial court’s oral pronouncement at the revocation of probation hearing that appellant’s unlawful drinking at an unlicensed liquor house, which was in part the basis of appellant’s probation revocation, was error. The court cannot revoke probation for conduct not charged in the affidavit of probation violation. Hodges v. State, 370 So.2d 78 (Fla. 2d DCA 1979).

Finally, although not raised by appellant’s counsel, the trial court’s written order of revocation of probation does not conform to its oral pronouncement finding appellant guilty of violating his probation by obstructing justice by giving false information. Thus, on remand, the trial court is also directed to correct the written order to conform to this oral pronouncement. Sparkman v. State, 445 So.2d 1115 (Fla. 2d DCA 1984).

Accordingly, we remand the cause to the trial court to correct the written order of probation revocation consistent with this opinion. We affirm the judgment and sentence in all other respects.

AFFIRMED and REMANDED.

OTT, C.J., and DANAHY, J., concur.


text:
    John D. KAYLOR, Petitioner, v. Louie T. MIMS, Sheriff of Polk County, Florida, Respondent.
    No. 84-506.
    Court of Appeal of Florida, Second District.
    March 9, 1984.
    Stevan T. Northcutt, Tampa, for petitioner.
    Joseph P. Mawhinney, Bartow, for respondent.
   ORDER

Counsel for petitioner has filed a Petition for Writ of Habeas Corpus seeking petitioner’s release following incarceration for contempt of court. It appearing that petitioner was denied due process of law, in that he was not apprised of the nature of his contempt nor afforded an opportunity to be heard and defend the allegations; see Strauser v. Strauser, 303 So.2d 663 (Fla. 4th DCA 1974); and it further appearing that the trial judge failed to make the required finding that petitioner presently had the ability to comply with the order and wilfully refused to do so: see Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); upon consideration, it is

ORDERED that petitioner be forthwith released from incarceration.


text:
    J.B., a Child, Petitioner, v. Larry LUMPEE, Superintendent of the Hillsborough Regional Detention Center, and The Honorable James P. Calhoun, Circuit Judge of the Thirteenth Circuit, in and for Hillsborough County, Respondents.
    No. 84-588.
    Court of Appeal of Florida, Second District.
    March 22, 1984.
    Mark R. Wolfe, Davis G. Anderson, Jr., Tampa, for petitioner.
   ORDER

This case is before us upon the Petition for Writ of Habeas Corpus filed by J.B., a child, and the response filed by the State of Florida to the rule to show cause heretofore entered by this Court.

Upon consideration it appears that the petitioner is held in secure detention under an extension order of the Circuit Court entered on March 20, 1984, pursuant to the authority granted in Chapter 39.032(6)(d), Florida Statutes (1983).

It further appears from the record of the Circuit Court proceedings that there was no competent evidence upon which the court could predicate a finding of good cause to extend the detention care of the child for more than twenty-one (21) days without an adjudicatory hearing. Therefore, it is

ORDERED that the Petition for Writ of Habeas Corpus is granted and the child, J.B., shall forthwith be released from detention care to await further proceedings in the Circuit Court.


author: DIXON, Chief Justice. WATSON, Justice,

text:
    STATE of Louisiana v. Wilson CHARLES.
    No. 82-KA-2215.
    Supreme Court of Louisiana.
    April 2, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Mike Harson, Car-rol L. Spell, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Bertrand DeBlanc, Lafayette, for defendant-appellant.
   DIXON, Chief Justice.

Defendant Wilson Charles was charged by indictment on March 27, 1980 with the March 8, 1980 attempted forcible rape of his four year old niece. After trial by jury, he was found guilty as charged and sentenced to twenty years at hard labor, without benefit of probation or parole for one year.

On the evening of March 8, 1980, the victim and her eight brothers and sisters, aged three to thirteen, were home alone while their parents were attending a wake. By 10:00 p.m. they had fallen asleep while watching television.

Only two witnesses testified at trial. The twelve year old (at the time of the offense) testified that she awoke at her four year old sister’s crying, to see her twenty-five year old uncle, clad only in a shirt, standing over the four year old removing her pants. The twelve year old and a brother fought the uncle until their father drove up. As the father entered the house, he saw the defendant, naked except for a shirt and with penile erection, run from a bedroom. When the children told the father what happened, the father said he accosted the defendant, who took a swing at the father. The father then attacked defendant, cutting him with a knife.

There was no evidence that the child victim was physically injured.

In his first assignment of error, the defendant complains that the trial court erred in finding him presently sane and able to stand trial. For two weeks in 1977 the defendant had been a patient at the Central Louisiana State Hospital at Pineville. Because of this institutionalization, the defendant requested that a sanity commission report upon his present mental capacity to proceed to trial.

Two physicians were appointed to the commission on May 23, 1980, but no date was set for the sanity hearing. The defendant filed a second prayer for the appointment of a sanity commission on July 17, 1980 and the same two physicians were again appointed. As before, no date was set for the hearing. The defendant was examined by these physicians on July 29, 1980 and on August 13, 1980.

The sanity hearing was finally held on March 2, 1982, the date on which the case had been set for trial, and some nineteen months after the commission had examined the defendant and submitted their reports. Defense counsel requested an instanter subpoena to have the two members of the sanity commission attend the hearing. His request was granted.

“Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” C.Cr.P. 641.

The law presumes the defendant’s sanity. R.S. 15:432. The defendant bears the burden of establishing by a clear preponderance of the evidence that, as a result of his mental infirmity, he is incompetent to proceed to trial. State v. Brown, 414 So.2d 689, 694 (La.1982).

At the sanity hearing, the trial judge heard the testimony of the two physicians who had examined the defendant. Neither physician supported the defendant’s claim of mental incapacity to proceed. Both doctors testified that they had found defendant able to assist in his defense when they examined him; however, neither could say whether or not the defendant was presently competent to stand trial.

The defendant introduced into evidence a certified copy of the records of his 1977 hospitalization at Central Louisiana State Hospital. The defendant had been diagnosed as having moderate mental retardation with behavioral reaction. His I.Q. was measured at 47. No other evidence or testimony was presented to show defendant’s incapacity to understand the proceedings against him or to assist in his defense.

“... while subnormal intelligence is a relevant factor in assessing a defendant’s present capacity to stand trial, it is not of itself dispositive of the issue.... ” State v. Brogdon, 426 So.2d 158, 168 (La.1983).
“Mere weakness of mentality or subnormal intelligence does not of itself constitute legal insanity....
A conclusion that one is mentally retarded or defective or diseased does not of itself establish present insanity. However, when mental retardation or defect or disease, alone or in combination, is so severe that a defendant is unable to understand the object, nature, and consequences of the proceedings against him, to communicate with counsel in a meaningful manner, to recall and relate the circumstances connected with the offense, to testify in his own behalf, and to assist reasonably and rationally in a defense of the charge against him, that defendant is, within the contemplation of our law, presently insane and unable to stand trial.” State v. Augustine, 252 La. 983, 995-97, 215 So.2d 634, 638-39 (1968).

The defendant did not provide sufficient evidence in support of his contention that he was incapable of standing trial, and the trial judge was not in error in finding the defendant presently sane and able to stand trial.

Defendant claims that the trial judge based his decision on sanity examinations that were almost two years old at the time of the hearing. He contends that he was not given the opportunity to have his present mental capacity determined.

Defendant had the opportunity to be examined by a physician of his choice, or to be re-examined by the members of the sanity commission. He had the opportunity to develop other evidence in support of his contention of incapacity.

Mental retardation is a static condition not likely to fluctuate over time. State v. Bennett, 345 So.2d 1129, 1139 (La.1977). It is highly probable that the defendant’s condition had not changed since the examinations, and that the trial judge could reasonably rely on those reports. The defendant presented no evidence to suggest that his condition changed since the 1980 examinations.

If the defense counsel was aware of a deterioration in his condition that could render defendant presently incapacitated, he had the burden of bringing such evidence to the attention of the trial judge. The trial judge held that the defendant had not met his burden of proof, and, on the record before us, he was not in error in finding the defendant presently sane.

The defense had requested a continuance to allow re-examination of the defendant. However, he presented no evi-, dence to support a need for re-examination. "... The trial court is required to order a mental examination of the defendant only when it has reasonable ground to doubt the defendant’s mental capacity to pro-ceed_” State v. Volson, 352 So.2d 1293, 1294 (La.1977); C.Cr.P. 643. The trial judge was not in error in denying the continuance for this purpose.

The defendant contends that the trial judge should have granted a continuance to avoid trial of the case on the same day as the sanity hearing. As the trial court found, counsel was appointed to represent the defendant on March 18, 1980. He had received notice of trial from the clerk of court. He might have requested a sanity hearing in advance of trial. There was no showing of good grounds for a continuance. The trial judge was not in error in proceeding with trial.

The defendant has assigned as Error No. 3 the denial of his motion for a new trial. He contends that the evidence was not sufficient to support a conviction; that there was no evidence of an overt act, an essential element of the crime of attempt.

To prove a crime of attempt, the prosecutor must show that the defendant had a specific intent to commit a crime, and that he did “an act for the purpose of or tending directly toward the accomplishing of his object.” R.S. 14:27. The defendant. has not challenged the finding of specific intent to commit forcible rape, but only the evidence of an overt act.

Both trial witnesses testified that the defendant was not wearing pants or underwear while in the company of these young children. The victim’s sister testified that, when the victim’s crying woke her and her brother, the defendant was trying to pull the victim’s pants off. Defendant’s erect penis was exposed when seen by the victim’s father.

Any rational trier of fact could have found that the defendant, under the circumstances described above, performed an overt act in furtherance of the rape of this child. The standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) has been met.

This assignment of error is without merit.

Defendant argues that there is error patent on the face of the record. He notes that he first raised the issue of his possible mental incapacity on May 20, 1980, by his request for the appointment of a sanity commission. He claims that all steps taken in this criminal prosecution from that date until the date of the sanity hearing on March 2, 1982 are invalid.

Not all errors discoverable on the face of the proceedings are reversible errors. “... Whether a patent error, like other statutory error, requires reversal must be evaluated in light of the potential impact on the fairness of the proceedings.” State v. White, 404 So.2d 1202, 1205 (La.1981).

The defendant was arraigned on June 19, 1980 and pleaded not guilty. There is no prejudice in such a plea. See State v. Watson, 423 So.2d 1130, 1134 (La. 1982). The law supplies “not guilty” as the default plea should the defendant refuse to plea or otherwise fail to plea. The “not guilty” plea may be subsequently changed to a plea of “guilty,” or a plea of “not guilty and not guilty by reason of insanity.”

The defendant did not contemporaneously object to the arraignment occurring before the sanity hearing, and could be said to have waived the objection. The trial judge was not made aware of the outstanding order appointing the sanity commission, and was not given an opportunity to prevent or cure any error. State v. Herrod, 412 So.2d 564, 566 (La.1982). The arraignment did not prejudice the defendant.

After the trial judge began jury selection on March 2, 1982, the state moved to amend the indictment to correct the number of the statute under which the defendant was charged. The trial judge permitted the amendment. The defendant then requested a new arraignment under the amended indictment.

Even if the June 19, 1980 arraignment were invalid, the March 2, 1980 arraignment, which followed the finding that the defendant was competent to stand trial, is valid. His plea was not changed at the second arraignment, and he has shown no prejudice from the earlier proceeding.

The defendant asserts that the trial court erred in denying a post arraignment continuance to allow him fifteen days in which to file pretrial motions. He claims that he is entitled to the fifteen days under C.Cr.P. 521. This code article was added to the law in 1978 in an effort to standardize the time for filing pretrial motions. 39 La.L.Rev. 262, 267 (1978). It was not meant as a guarantor of a new substantive right, as it expressly allows the court to fix a different time in which motions are to be filed.

Counsel was present in court when the grand jury returned its indictment charging the defendant with attempted forcible rape. Counsel filed a motion for reduction of bail, which was ordered, and filed motions for the appointment of a sanity commission on May 20, 1980 and on July 17, 1980, which were granted. On January 13, 1981, defendant’s earlier trial date, defense counsel’s oral motion for a continuance was granted.

Counsel requested a continuance immediately after the March 2, 1982 arraignment, and after it was denied, was permitted to amend his motion. Defense counsel has taken advantage of his opportunities to file pretrial motions in this case, and has not identified any motion that he unsuccessfully sought to file.

At no time did counsel give the court reason for a continuance, other than a desire for more time to prepare for trial. The defense counsel received adequate notice of trial.

This assignment is without merit. State v. Howard, 414 So.2d 1210 (La.1982).

The conviction and sentence are affirmed.

WATSON, J., concurs with reasons.

WATSON, Justice,

concurring.

I respectfully concur, while admitting some doubt about placing a heavy burden of proof on a defendant having an I.Q. of forty-seven to show that he lacked the mental capacity to proceed, that is, that he understood the nature of the charges against him and was able to assist counsel in his defense. It would have been much better to have had a supplementary examination by the physicians who had examined him some nineteen months before trial.

      . "A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor." C.Cr.P. 712.

      . "The criminal prosecution shall be resumed if the court determines that the defendant has the mental capacity to proceed.” C.Cr.P. 648(A).

      .The defendant has not briefed an Assignment of Error No. 2. Assignments of error neither briefed nor argued are deemed abandoned. State v. Williams, 362 So.2d 530, 531 (La.1978).

      . "The defendant’s mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. When the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed." C.Cr.P. 642.

      . “A defendant shall plead when arraigned. If he stands mute, refuses to plead, or pleads evasively, a plea of not guilty shall be entered of record. When a defendant is a corporation and fails to appear for arraignment when summoned, a plea of not guilty shall be entered of record.” C.Cr.P. 554.

        . "Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.” C.Cr.P. 555.

      . “A defendant may at any time withdraw a plea of not guilty and plead guilty, subject to the limitations stated in Articles 556 through 559.” C.Cr.P. 560.

      . "The defendant may withdraw a plea of "not guilty" and enter a plea of "not guilty and not guilty by reason of insanity,” within ten days after arraignment. Thereafter, the court may, for good cause shown, allow such a change of plea at any time before the commencement of the trial.” C.Cr.P. 561.

      . "An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
      The requirement of an objection shall not apply to the court’s ruling on any written motion." C.Cr.P. 841.

      . "When there is a variance between the allegations of an indictment or bill of particulars which state the particulars of the offense, and the evidence offered in support thereof, the court may order the indictment or bill of particulars amended in respect to the variance, and then admit the evidence." C.Cr.P. 488.

      . “Pretrial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court at arraignment upon a showing of good cause why fifteen days is inadequate.
      Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions." C.Cr.P. 521.