text:
    Michael IACONO, Appellant, v. The STATE of Florida, Appellee.
    No. 83-777.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order revoking appellant’s probation is affirmed with modifications.

We affirm the trial court’s finding of competency on the authority of Fowler v. State, 255 So.2d 513 (Fla.1971); Brock v. State, 69 So.2d 344, 346 (Fla.1954); and Pressley v. State, 261 So.2d 522 (Fla. 3d DCA 1972).

The trial court erred by including in its order, as grounds for revocation of probation, the following: that the defendant committed the offense of kidnapping and that he failed to submit monthly reports for February 1981 through January 1982; Willis v. State, 446 So.2d 210 (Fla. 3d DCA 1984); Clark v. State, 442 So.2d 1076 (Fla. 3d DCA 1983); Mack v. State, 342 So.2d 562 (Fla. 2d DCA 1977) (cannot revoke probation based on facts not alleged on the affidavit of violation); that the defendant failed to make cost supervision payments; Pope v. State, 444 So.2d 1161 (Fla. 3d DCA 1984) and cases cited therein (cannot revoke probation without a demonstration and finding of financial ability to pay); that the defendant changed his residence without the consent of his probation supervisor and failed to work diligently at a lawful occupation; Delgado v. State, 423 So.2d 603 (Fla. 3d DCA 1982) (the grounds for revocation must be supported by the evidence). These grounds are stricken from the order.

Since the remaining grounds for revocation are substantial, including the commission of new substantive offenses, the order of revocation is affirmed as modified. See Aaron v. State, 400 So.2d 1033, 1035 (Fla. 3d DCA), review denied, 408 So.2d 1095 (Fla.1981) and cases cited therein.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The ASSEMBLIES OF GOD, The General Council of the Assemblies of God, Appellants, v. Roberto GARRIDO and other Unknown Parties, Appellees.
    No. 83-1999.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Edward J. Winter, Jr., Miami Shores, for appellants.
    Mary Louise Dennis, Miami, for appel-lees.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

This is an appeal by the General Council of the Assemblies of God, the parent national organization of a congregational church, from an order which granted a motion to dismiss and dismissed its complaint with prejudice. The action sought to establish the plaintiffs title to realty in Dade County which had been owned by a local church affiliate, the Evangelical Pentecostal Church and Refugee Center, Inc. Attached to the complaint, inter alia, was a resolution of that .corporation which purported conditionally to transfer title to the parent and at least prima facie established the right of the plaintiff to recover. Since only the sufficiency of the complaint itself is in issue, 40 Fla.Jur.2d Pleadings § 70 (1982), and neither of the grounds apparently relied upon below, the claimed inau-thenticity of the resolution, 40 Fla.Jur.2d Pleadings § 175, and the alleged res judica-ta effect of certain prior actions which did not appear on the face of the complaint, Sanchez v. Mercy Hospital, 386 So.2d 42 (Fla. 3d DCA 1980); Frank v. Campbell Property Management, Inc., 351 So.2d 364 (Fla. 4th DCA 1977), may properly be considered on a motion to dismiss, the judgment below is reversed and the cause remanded for further proceedings consistent herewith.


text:
    Eugene Anthony CHESTNUT, Appellant, v. The STATE of Florida, Appellee.
    No. 84-98.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.

      Bennett H. Brummer, Public Defender and Gelber, Glass, Durant & Grande and N. Joseph Durant, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The trial court did not err in giving the jury an instruction on “principals” after closing arguments, even though the instruction had not been requested at the charge conference. See Jacobs v. State, 396 So.2d 713 (Fla.1981).

Affirmed.


text:
    A. Henry CRESWELL and June T. Creswell, as Personal Representatives of the Estate of William Joseph Creswell, a minor, deceased, etc., Appellants, v. JARTRAN, INC., Transport Indemnity Company, Abram Ezekiel Davis, and Florida Frozen Foods, Inc., Appellees.
    No. 83-2311.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Greene & Cooper and Joan N. Bolotin, Miami, Haggard & Kirkland, Coral Gables, for appellants.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Paul A. Carlson, Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Shelly H. Leinicke, Miami, for appellees.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Pritchard v. Peppercorn and Peppercorn, Inc., 96 So.2d 769 (Fla.1957); Nunziato v. P & L Auto Parts, Inc., 403 So.2d 1031 (Fla. 3d DCA 1981).


text:
    Alexander MACAW, Katherine Eugenia Macaw, his wife, and Coconut Grove Bank, Appellants, v. Stephen D. GROSS, Robert I. Weissler and Jeffrey M. Fine, Appellees. Robert I. WEISSLER, Appellant, v. Alexander MACAW, Katherine Eugenia Macaw, his wife, Coconut Grove Bank, Steven D. Gross and Jeffrey M. Fine, Appellees.
    Nos. 83-2637, 83-2658 and 83-2659.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.

      Goodwin, Ryskamp, Welcher & Carrier, and Kenneth Ryskamp; Alfred Gustinger, Jr., Miami, for appellants Macaw and Coconut Grove Bank.
    Broad & Cassel, Bruce D. Fischman and Steven W. Davis, Bay Harbor Islands, for appellees Gross, Weissler and Fine.
    Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, Eugene Stearns and Bradford Swing, Miami, for appellant Weis-sler.
    Goodwin, Ryskamp, Welcher & Carrier, and Kenneth Ryskamp, Alfred Gustinger, Jr., Miami, Broad & Cassel, Bruce D. Fisch-man and Steven W. Davis, Bay Harbor Islands, for appellees Macaw, Coconut Grove Bank, Gross and Fine.
    Before HUBBART, BASKIN arid FERGUSON, JJ.
   PER CURIAM.

Appellants seek reversal of final judgments granting partial release of mortgaged property. They base their claim on alleged inconsistencies in the mortgage documents.

The trial court’s interpretation of a contract will not be disturbed on appeal unless it is clearly incorrect and unsupported by the evidence. Liza Danielle, Inc. v. Jamko, Inc., 408 So.2d 735 (Fla. 3d DCA 1982). To ascertain the intention of the parties to a contract, the trial court must examine the whole instrument, not just particular portions, and reach an interpretation consistent with reason, probability, and the practical aspects of the transaction between the parties. Blackshear Mfg. Co. v. Fralick, 88 Fla. 589, 592, 593, 102 So. 753, 754 (1925). Because the trial court applied these principles and appellants have failed to demonstrate error, the judgments appealed are affirmed.

Affirmed.


text:
    Evan G. MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1961.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1984.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Penny H. Brill, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The Public Defender’s motion to withdraw is granted. The judgment and sentences are affirmed without prejudice to seek relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure, to correct the written sentence to have it conform to the oral pronouncement.

DOWNEY, HERSEY and DELL, JJ., concur.


author: GLICKSTEIN, Judge. ANSTEAD, Chief Judge,

text:
    Saul N. SHERMAN, D.C., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
    No. 83-1642.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1984.
    Henry B. Rothblatt, Fort Lauderdale, for appellant.
    Jerry Frances Carter, Staff Atty., Tallahassee, for appellee.
   GLICKSTEIN, Judge.

Appellant, a licensed chiropractor, appeals from a final order of the Department of Professional Regulation which fined him $1,000 for allegedly deceptive advertising. We reverse.

The Department of Professional Regulation filed an administrative complaint against appellant, contending that he wrongfully placed an advertisement in a newspaper of general circulation in Palm Beach County, advertising a Natural Holistic Health Fair to be held at a shopping mall. The complaint was based upon Rule 21D-15.01(2)(g), Florida Administrative Code, which provides:

(2) No chiropractor shall disseminate or cause the dissemination of any advertisement or advertising which is any way fraudulent, false, deceptive or misleading. Any advertisement or or [sic] advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading if it:
(g) Fails to conspicuously identify the chiropractor or chiropractors referred to in the advertising as a chiropractor or chiropractors.

The present case is a good illustration of differing value judgments. The majority consider the “advertisement” of the “Natural Holistic Health Fair” not to be the type of “advertisement!’ that the subject regulation was designed to proscribe.

The basis of our value judgment is primarily found in the fact that the advertisement, on its face, is for a fair, which needs no definition for this opinion. Instead of preserves and pies, health resources were to be displayed. We liken the chiropractic examinations being offered at the fair to the generic counseling being offered by lawyers on Law Day every year at shopping centers across the nation; whereas the latter involves the mind, the former involves the body.

The purpose of the subject regulation, in our view, was to prevent individual chiropractors from conducting their practices under fictitious trade names which did not identify who the practitioners were. It was not designed to preclude one branch of chiropractors from participating in a holistic fair and to advertise their participation on the Florida Chiropractic Council, nor to punish the officers thereof as being individually responsible, any more than The Florida Bar would seek to punish local bar association officers for the association’s advertisement of Law Day. The lawyer talking to the elderly shopper about wills and the chiropractor displaying some healing manipulation are not doing business under a fictitious trade name. We feel that support for our value judgment, however relative it may be, is in the language found in Friedman v. Rogers, 440 U.S. 1, 13, 99 S.Ct. 887, 896, 59 L.Ed.2d 100, 112 (1979), which describes the perils a similar proscription involving Texas optometrists was designed to prevent. Those perils originate with the practice of a profession — legal or medical — without disclosure of the identity of the individual engaged in the practice. To extend the intended protection of the public to the facts of this case is, in the judgment of the majority, artificial. Let us pose a case where the council members referred invitees at the fair to an individual or group of chiropractors who were practicing under a trade name without disclosing the practitioners’ identity. In such instance, all involved in such scheme would have the same dirt on their hands. However, in the instant case there is no evidence whatsoever of such complicity, evasiveness or otherwise sinister conduct. What if, instead of free examinations, the council had shown a film, or had two chiropractors perform a subluxation which did not involve an invitee to the fair, and then referred the invitee to an identified chiropractor. What deception exists in such instance?

It is said that legal principles arise out of factual contexts, not vacuums. It follows that once they have arisen, the principles should be applied to similar fact situations as long as the value judgments which underlie them still withstand scrutiny. Here, a valuable social concern which was faced in Friedman has been extended by appel-lee to a fact situation that is different in kind, not merely degree.

Although we reverse, we disagree with appellant’s contention that the subject rule under which he was charged was an unconstitutional abridgement of his free speech. In Friedman, the Supreme Court said with respect to the similar Texas rule affecting optometrists:

Rather than stifling commercial speech, § 5.13(d) ensures that information regarding optometrical services will be communicated more fully and accurately to consumers than it had been in the past when optometrists were allowed to convey the information through unstated and ambiguous associations with a trade name. In sum, Texas has done no more than require that commercial information about optometrical services “appear in such a form ... as [is] necessary to prevent its being deceptive.” Virginia Pharmacy [v. Virginia Citizens Consumer Council], 425 U.S. [748], at 772 n. 24, 96 S.Ct. [1817], at 1830 n. 24 [48 L.Ed.2d 346].

440 U.S. at 16, 99 S.Ct. at 897, 59 L.Ed.2d at 114. While concurring in the Friedman Court’s conclusion that the regulation is not unconstitutional and recognizing the societal concern which it addresses, we point out that the Friedman Court was split on the constitutionality issue because the Texas statute banned any trade name, even if the identity of the optometrist was made apparent in the trade name. Three justices thought the statute went too far when it made such a broad proscription. This illustrates the proposition that frequently appellate decisions are not a matter of who is right or wrong, but how many “who’s” there are on each side of debatable value judgments.

DOWNEY, J., concurs.

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

ANSTEAD, Chief Judge,

concurring specially:

I agree that the order imposing sanctions against the appellant should be reversed. While the appellant has framed the issues in constitutional terms I would reverse on much narrower grounds, that of sufficiency of the evidence to prove a violation of the rule in question. The facts are adequately set out in the majority opinion. I simply do not believe those facts, even when considered together with the reasonable inferences drawn therefrom in favor of the appellee, demonstrate a violation of the regulation in question. The regulation appears to be intended to prevent practitioners from advertising, i.e., soliciting patients to use their professional services, without identifying themselves. The regulation does not appear to extend to the factual situation involved herein whereby a number of generally related organizations (rather than individuals) combine together to put on a public activity to make the public aware of the organizations and their services. The fact that the fair may lead to business for the various participants involved does not, in my view, establish an obligation under the regulation in question to conspicuously identify the particular chiropractors that may participate. In addition, it is apparent that the appellant is being prosecuted in his representative capacity for the activities of the association of which he is a member. As noted in the majority opinion, it is difficult to resist analogizing appellant’s activities to those of a voluntary bar association. I simply do not believe the evidence supports a conclusion that appellant’s business was being promoted by the advertising.

      . The word "holistic” is defined in The American Heritage Dictionary 628 (1979) as follows:
      1. Of or pertaining to holism. 2. Explaining the importance of the whole and the interdependence of its parts.

      . In Thompson and Sebert’s excellent casebook, Remedies: Damages, Equity and Restitution (1983), which lawyers would do well to consider including in their law libraries because of the numerous provocative notes and comments, the co-authors reprinted Judge Brown’s opinion in Mutual of Omaha Insurance Company v. Russell, 402 F.2d 339 (10th Cir.1968). Judge Brown focused sharply on the concept here being discussed when he wrote:
      As in nearly all cases, an inquiry of this type involves consideration of the competing interests.

        Id. at 345.

      . The cited language is as follows:
      The possibilities for deception are numerous. The trade name of an optometrical practice can remain unchanged despite changes in the staff of optometrists upon whose skill and care and [sic] public depends when it patronizes the practice. Thus, the public may be attracted by a trade name that reflects the reputation of an optometrist no longer associated with the practice. A trade name frees an optometrist from dependence on his personal reputation to attract clients, and even allows him to assume a new trade name if negligence or misconduct casts a shadow over the old one. By using different trade names at shops under his common ownership, an optometrist can give the public the false impression of competition among the shops. The use of a trade name also facilitates the advertising essential to large-scale commercial practices with numerous branch offices, conduct the State rationally may wish to discourage while not prohibiting commercial optometrical practice altogether.

      . To be sure, on occasion there are rights and wrongs governing intermediate appellate court decision-making. For example, when the Florida Supreme Court has enounced a rule of law, upon which a myriad of decisions have been predicated, a district court exceeds its authority if it promulgates a contrary rule. See Jones v. Hoffman, 272 So.2d 529, 533-34 (Fla. 4th DCA) (Owen, J., dissenting), remanded, Hoffman v. Jones, 280 So.2d 431 (Fla.1973).


text:
    FLORIDA COMMUNITIES HUTCHINSON ISLAND, Sentinel Communities, Inc., Hutchinson Island Homes, Inc., and Zaremba Hutchinson Island, Inc., Petitioners, v. Peter ARABIA and Maria Arabia, Respondents.
    No. 84-600.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1984.
    George F. Bovie, III, of Crary, Buchanan, Bowdish & Bovie, Stuart, for petitioners.
    Sam T. Steger of McRoberts, Steger & Galante, P.A., Stuart, for respondents.
   PER CURIAM.

Petitioners are the owners of Unit 107-C in “Sandpebble,” a condominium in Martin County. Respondents filed suit against petitioners seeking rescission of an agreement to purchase Unit 107-C, together with damages for breach of contract and misrepresentation. The complaint was first amended to add a claim under the Interstate Land Sales Act, 15 U.S.C. § 1703, and again to request an equitable lien. A notice of lis pendens was filed with the second amended complaint.

Sandpebble moved to dissolve the lis pen-dens, or in the alternative, for an order requiring respondents to post bond. After hearing, the trial court ordered that “The defendant’s motion to dissolve lis pendens is denied provided, however, the defendant may obtain the dissolution of the lis pen-dens by posting an indemnity bond in the amount of $28,515.00 subject to the approval of this court.” The sum referred to in the order represents the respondents’ initial 10% deposit and other various fees connected with their purchase of the condominium unit.

Petitioners seek a writ of certiorari on the basis that the circuit court’s ruling as to the lis pendens constitutes a departure from the essential requirements of law. We agree and, therefore, grant the writ and quash the order.

The respondents concede that this action is not founded on a duly recorded instrument or on a mechanic’s lien claim. Therefore, they are not entitled to maintain the lis pendens as a matter of right. Cf. Florida Peach Corp. of America v. Lurie, 411 So.2d 339 (Fla. 5th DCA 1982). They argue, however, that the trial court acted within its discretion by allowing them to maintain the lis pendens without posting bond because the petitioners failed to show irreparable harm, and further, that the trial court had authority under section 718.202, Florida Statutes (1983) to require the petitioners to post the bond. We disagree with both of those contentions.

This action is governed by section 48.-23(3), Florida Statutes (1983):

(3) When the initial pleading does not show that the action is founded on a duly recorded instrument, or on a mechanic’s lien, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.

The issuance of injunctions, in turn, is controlled by Fla.R.Civ.P. 1.610, section (c) of which provides:

(c) BOND. No restraining order or preliminary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined or restrained. When any injunction is issued on the pleading of a municipality or the state or any officer, agency or political subdivision thereof, the court, in its discretion having due regard to the public interest, may require or dispense with the requirement of a bond, with or without surety, and conditioned as the circumstances may require.

The trial court had no authority to condition discharge of the notice of lis pendens upon posting of a bond by the petitioners under those statutes. Section 48.23 contemplates that the proponent of a notice of lis pendens may be required to post bond, the amount of which is within the sound discretion of the trial court. See Cam Corp. v. Goldberger, 368 So.2d 56 (Fla. 4th DCA), cert. denied, 378 So.2d 343 (Fla.1979). Where a complaint is not based on a duly recorded instrument or mechanic’s lien, a bond is mandatory if irreparable damage would result if a bond were not required. Glusman v. Warren, 413 So.2d 857 (Fla. 4th DCA 1982). In this case, irreparable harm would result if the respondents were allowed to maintain the lis pendens without posting a bond because the petitioners may be unable to sell the property after final judgment enters. Cf. Hallmark Manufacturing Inc. v. Lujack Construction Co., 372 So.2d 520 (Fla. 4th DCA 1979).

Therefore, the trial court’s failure to discharge the lis pendens, or alternatively, to require posting of a bond by respondents as a condition to maintenance of the lis pendens constituted a departure from the essential requirements of law.

We have also reviewed respondent’s argument under section 718.202, Florida Statutes (1983) and find it meritless. Accordingly, we grant the writ, and remand with instructions to dissolve the notice of lis pendens, or alternatively, for entry of an order requiring respondents to post an indemnity bond sufficient to protect the petitioners from damages and costs if the lis pendens is found to have been wrongfully continued.

DOWNEY, HERSEY and HURLEY, JJ., concur.


author: CAMPBELL, Judge.

text:
    William G. KEEN and Janet B. Keen, his wife, Appellants, v. Charles Anthony BERNARDO, Jr., Appellee.
    No. 83-2430.
    District Court of Appeal of Florida, Second District.
    July 18, 1984.
    Andrew J. Mirabole, Tampa, for appellants.
    R. Wade Wetherington of Gibbons, Tucker, Smith, Miller, Whatley & Stein, P.A., Tampa, for appellee.
   CAMPBELL, Judge.

Appellants, William G. Keen and Janet B. Keen, seek review of the order awarding attorney’s fees to appellee, Charles Bernardo, Jr. We affirm.

The issue on appeal is whether the trial court erred by finding there was a complete absence of a justiciable issue of fact or law as to appellee, and awarding him attorney’s fees pursuant to section 57.105, Florida Statutes (1981).

Appellant sold a 1980 Kenworth K-100 tractor to “Charles Bernardo” at his business address of Select Truck Broker, 6710 C.E. Hillsborough Avenue, Tampa, Florida. “Charles Bernardo” defaulted on his obligation under the contract. Appellants filed suit against “Charles Bernardo” and had process served on “Charles Bernardo” at his business address. Charles Bernardo, Jr., appellee, was served on December 27, 1982.

On December 28, 1982, Charles Bernardo, Jr. informed appellants’ attorney’s office that he was not a party to the contract upon which appellants were suing.

On January 7, 1983, appellants issued a summons for Charles Bernardo, Sr.

On January 12, 1983, appellee, Charles Bernardo, Jr. consulted an attorney. Ap-pellee’s attorney notified appellants’ attorney that the wrong person had been served. Appellee’s attorney filed an answer to the complaint and included the affirmative defense that Charles Bernardo, Jr. was not a party to the contract sued upon.

In a telephone conference on January 18, 1983, appellants’ attorney confirmed that Charles Bernardo, Sr., rather than Charles Bernardo, Jr., was the party that appellants intended to bring suit against. On January 24, 1983, appellants’ attorney wrote a letter stating that he intended to dismiss Charles Bernardo, Jr. from the lawsuit, but that he wished to take Charles Bernardo, Jr.’s deposition as a witness. He included a notice of taking deposition of Charles Bernardo, Jr.

On January 28, 1983, appellants were served with a motion for attorney’s fees on behalf of appellee.

On February 2, 1983, Charles Bernardo, Jr., represented by counsel, was deposed.

On February 3, 1983, the day after the deposition, appellants’ attorney filed a notice of voluntary dismissal of appellee.

On February 27, 1983, the trial court heard appellee’s motion for attorney’s fees. The court found a complete absence of a justiciable issue of law or fact, and entered an order awarding attorney’s fees of $250 to appellee.

Appellants claim that the justiciable issue as to who was the proper party in this action was resolved through the process of discovery, that is, by taking Charles Bernardo, Jr.’s deposition. Appellants claim it would have been unreasonable to expect appellants’ counsel to dismiss appellee from the suit on the basis of unverified statements. Appellants cite Greenberg v. Manor Pines Realty Corporation, 414 So.2d 260 (Fla. 4th DCA 1982) and Stevenson v. Rutherford, 440 So.2d 28 (Fla. 4th DCA 1983), to support their proposition.

We find that Stevenson v. Rutherford and Greenberg v. Manor Pines Realty Corporation are distinguishable on their facts. In Greenberg v. Manor Pines Realty Corporation, it was established through discovery that one defendant was improperly included in the action. The trial court’s award of attorney’s fees was reversed on appeal because the Fourth District Court of Appeal found that there was a justiciable issue which was resolved by the discovery. In Stevenson v. Rutherford, the plaintiff brought suit against a defendant whom he thought was the proper party to the action; however, when the deposition of that defendant was taken, it became clear he was not a proper party. The Fourth District Court of Appeal reversed the award of attorney’s fees because the claim did not appear to be baseless, and appellant did not seem to draw out the time for voluntary dismissal.

Here, appellants knew long before they deposed appellee that he was not a party to the contract which was the basis of their lawsuit. Appellants admitted that they intended to sue Charles Bernardo, Sr. They also acknowledged the problem when they served Charles Bernardo, Sr. with a subpoena. Therefore, as to Charles Bernardo, Jr., appellee, there was no justiciable issue in this case. Nonetheless, appellants failed to dismiss appellee from the case, which caused appellee to hire legal counsel and incur legal expenses.

For the reasons - stated above, we find that appellee is entitled to attorney’s fees pursuant to section 57.105, Florida Statutes, and affirm the award of the trial court.

RYDER, C.J., and LEHAN, J., concur.


text:
    Carole Jean MAYHEW, Appellant, v. STATE of Florida, Appellee.
    No. 84-285.
    District Court of Appeal of Florida, Second District.
    July 18, 1984.
    Robert B. Bennett, Jr., Sarasota, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Defendant pled no contest to possession of cannabis and phentermine. She reserved the right to appeal the trial court’s denial of her motion to suppress.

We find that the inventory search of defendant’s purse, which yielded the contraband, was proper. See State v. Barth, 434 So.2d 19 (Fla. 2d DCA 1983); State v. Forbes, 419 So.2d 782 (Fla. 2d DCA 1982). Accordingly, we reject the points raised by defendant.

Judgment and sentence affirmed.

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


author: SCHOONOVER, Judge.

text:
    STATE of Florida, Appellant, v. Edward A. COKER, Appellee.
    No. 83-2605.
    District Court of Appeal of Florida, Second District.
    July 18, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.

      Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellee.
   SCHOONOVER, Judge.

The state appeals from an order granting the appellee’s motion to dismiss. We reverse.

The appellee, Edward A. Coker, was charged with violating section 893.-13(3)(a)(l), Florida Statutes (1983), which makes it unlawful for any person: “(1) to acquire or obtain, or attempt to acquire or obtain, possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.”

Pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), the appellee filed a motion to dismiss the information on the ground that there were no material disputed facts and that the undisputed facts failed to establish a prima facie case of guilt. He alleged that on July 6, 1983, Dr. William Priest wrote and delivered to him a prescription for a controlled substance, vi-codin, which contains dihydiocodein. Ap-pellee filled the prescription that same day. The following day, appellee returned to the doctor’s office and requested a new prescription. He informed Dr. Priest that his mother had washed and destroyed the original prescription. The doctor refused to issue a new prescription. Appellee was subsequently arrested for attempting to obtain a controlled substance by fraud.

The motion to dismiss also admitted that appellee had been untruthful with Dr. Priest regarding the destruction of his prescription and that his untruthful statement had been made for the express purpose of obtaining another prescription for a controlled substance. The motion further alleged that appellee had never abandoned his attempt to obtain the new prescription.

The state filed a traverse for the sole purpose of adding facts. The traverse alleged that appellee had admitted lying to the doctor in order to obtain more vicodin, had not abandoned his attempt to obtain drugs by fraud, and had been unsuccessful in obtaining a new prescription only because of Dr. Priest’s suspicions.

The trial court granted the appellee’s motion to dismiss the information and this appeal timely followed.

An attempt to commit a crime consists of two essential elements: a specific intent to commit the crime, and an overt act, beyond mere preparation, done toward its commission. The intent and the act must be such that they would have resulted, but for the interference of some cause preventing the carrying out of the intent, in the completed commission of the crime. Adams v. Murphy, 394 So.2d 411 (Fla.1981). This definition has been incorporated into the General Attempt Statute, section 777.04, Florida Statutes (1983). Adams.

The appellee does not contend that the allegations in the motion and traverse fail to establish the necessary intent; rather, he argues that there was no overt act toward the commission of the offense.

Under the circumstances of this case, appellee’s untruthfulness with reference to the destruction of the prescription, made for the express purpose of obtaining another prescription, constituted an overt act done toward the commission of the crime; accordingly, the court erred in dismissing the charges filed against the appel-lee.

Preparation generally consists of devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement toward the commission after preparations are completed. 21 AM.JUR.2d Criminal Law § 159 (1981). The act must reach far enough toward accomplishing the desired result to amount to commencement of the consummation of the crime. Some appreciable fragment of the crime must be committed and it must proceed to the point that the crime would be consummated unless interrupted by a circumstance independent of the attemptor’s will. Robinson v. State, 263 So.2d 595 (Fla. 3d DCA 1972); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA), cert. denied, 207 So.2d 452 (Fla.1967). The act need not be, however, the ultimate, the last proximate, or the last possible act toward consummation of the crime. State v. Thomas, 438 S.W.2d 441 (Mo.1969).

If the appellee had been apprehended at his home while dressing to go to the doctor’s office, or while getting into his car to leave for the doctor’s office, he would have been involved in the preparation for, as opposed to the commission of, an overt act. See Mercer v. State, 347 So.2d 733 (Fla. 4th DCA 1977). Appellee’s untruthful statement to the doctor, however, was made with the express purpose of obtaining another prescription; he therefore committed an overt act toward the commission of a crime. Although the receipt of the prescription would not have amounted to receipt of the controlled substance, a prescription is the written representation of a drug; it enables its possessor to claim physical custody and control over the prescribed drug. United States v. Tighe, 551 F.2d 18 (3d Cir.), cert. denied, 434 U.S. 823, 98 S.Ct. 68, 54 L.Ed.2d 80 (1977). Therefore, even though appellee’s representation was not the last possible act toward consummation of the crime he was attempting to perpetrate, the crime would have been consummated had it not been interrupted by a circumstance independent of his will, i.e., Dr. Priest’s suspicions.

See State v. Logan, 59 Nev. 24, 83 P.2d 1035 (1938) (the defendant took a false prescription to a drug store, asked how much it would cost to have the prescription filled, left it with the clerk, and then departed); State v. Basinow, 121 N.H. 815, 435 A.2d 829 (1981) (the defendant photocopied a valid prescription in order to obtain more drugs than he was entitled to under the prescription); Schroer v. State, 159 Ind.App. 522, 307 N.E.2d 887 (1974) (the defendant responded to a call from a druggist to pick up a prescription delivered to the druggist by someone else).

Accordingly, the order dismissing the information filed herein is reversed and the cause is remanded for further proceedings consistent with this opinion.

RYDER, C.J., and LEHAN, J., concur.


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

text:
    STATE of Florida, Appellant, v. Wesley Keith CARTER, Appellee.
    No. 82-1439.
    District Court of Appeal of Florida, Fifth District.
    July 19, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    Walter H. Tedford, Jr., DeLand, for ap-pellee.
   FRANK D. UPCHURCH, Jr., Judge.

The state appeals from an order dismissing a count in an information filed against Wesley Carter.

On September 18, 1981, Carter, while operating his automobile, was involved in an accident which resulted in the death of Iris McDaniel Parish. He was ticketed at the scene (citation # 971-592Z) for driving under the influence of alcoholic beverages and for unlawful blood alcohol level, both in violation of section 316.193, Florida Statutes.

Carter attacked the sufficiency of citation # 971-592Z pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The state did not file a traverse to this motion to dismiss and on January 5, 1982, the county court entered an order dismissing the citation.

The state then filed an information against Carter, charging him with driving under the influence. On February 15, 1982, just before jury selection, the state nol prossed the charge. That same afternoon, the DUI charge was refiled against Carter, only to be nol prossed again on April 7, 1982.

On April 12, 1982, a two-count information was filed charging Carter in count I with driving while intoxicated resulting in a death (DWI/Manslaughter) and in count II with vehicular homicide. Carter filed a motion to dismiss count I on the grounds of prior acquittal and prejudicial delay. He later moved to dismiss count II.

An order of dismissal was entered on October 29, 1982, granting both motions and dismissing the two counts, though only the dismissal of count I (DWI/Manslaughter) is challenged here. In dismissing count I, the court agreed with Carter that the dismissal of citation #971-592Z constituted a former acquittal on the DWI/Manslaughter charge since both charges involved the same criminal episode.

The crucial question here is whether the county court’s dismissal of the DUI and UBAL charges contained in citation # 971-592Z, pursuant to Carter’s “C-4” motion, barred the state from proceeding with count I of the instant information.

Case law holds that after pre-trial dismissal on the merits pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), the state is not barred from refiling an information except- in limited circumstances. Refiling is permitted so long as it is not barred by: 1) double jeopardy, 2) by prior presentation of the identical issue by res judicata, 3) by a previous final order of dismissal with prejudice, or by 4) the statute of limitations. See State v. Davis, 243 So.2d 587 (Fla.1971); State v. Schafer, 376 So.2d 927 (Fla. 2d DCA 1979); State v. Gellis, 375 So.2d 885 (Fla. 3d DCA 1979). Clearly principles of double jeopardy would not bar such refiling since a pre-trial dismissal of a criminal case occurs before jeopardy attaches. Holloway v. State, 432 So.2d 649 (Fla. 1st DCA 1983); State v. Schafer.

As to the doctrine of res judicata, it applies only where, upon the refiling of the information, the trial court is confronted with the identical motion to dismiss together with the identical traverse or demurrer, or lack thereof, as the court was previously confronted with when it dismissed the first information. State v. Gellis. Then and only then is the court compelled to dismiss the second information on res judicata grounds as the identical issue has previously been litigated between the parties in the defendant’s favor. Id.

Res judicata, however, applies only to a second suit between the same parties based on the same cause of action. Brown v. State, 397 So.2d 320, 322 (Fla. 2d DCA 1981). In this regard, it differs from collateral estoppel which does not require the same cause of action, but requires the same parties and issues. Id. Therefore, while res judicata would apply if Carter were charged with DUI or UBAL again (and he filed an identical motion to dismiss as his earlier one and the state failed to traverse), here Carter was recharged with DWI/Manslaughter. Therefore, the state is barred from proceeding with this charge, if at all, under principles of collateral estop-pel.

In State v. McCord, 402 So.2d 1147 (Fla.1981), the supreme court held that collateral estoppel against the state is applicable to pre-trial orders in criminal cases only if jeopardy attached in the first proceeding. Here, Carter was never placed in jeopardy on the DUI and UBAL charges in county court and hence collateral estoppel does not bar the instant DWI/Manslaughter charge. See, e.g., State v. Jones, 425 So.2d 178 (Fla. 1st DCA 1983) (defendant not placed in jeopardy in probation revocation hearing and hence state not collaterally estopped from subsequently prosecuting defendant for aggravated battery, which charge was the basis for the revocation hearing which ended in defendant’s favor).

McCray v. State, 350 So.2d 1126 (Fla. 2d DCA 1977) and Humphries v. Wainwright, 584 F.2d 702 (5th Cir.1978), are somewhat similar to this case except for the crucial fact that the earlier acquittals occurred after jeopardy had attached. We conclude that in the instant case, prosecution was not barred by principles of double jeopardy, res judicata, or collateral estoppel.

Carter also argues that prosecutorial misconduct is present here and that this bars the DWI/Manslaughter charge. See United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Opager, 616 F.2d 231 (5th Cir.1980). The trial court made no finding of prosecutorial misconduct below. Furthermore, the mere fact that the state twice nol prossed DUI charges against Carter before the trials could begin is not of itself “egregious enough to warrant the serious sanction of prohibiting reprosecution.” See United States v. Garza, 603 F.2d 578, 580 (5th Cir.1979).

The portion of the order below dismissing count I of the information (charging DWI/Manslaughter) is reversed.

REVERSED.

DAUKSCH and SHARP, JJ., concur.

      . It is clear that the informations charging DUI, which were nol prossed by the state, were not acquittals and do not bar the instant charge under double jeopardy principles since jeopardy had not attached at the time the nol presses were entered. See Bucolo v. Adkins, 424 U.S. 641, 96 S.Ct. 1086, 47 L.Ed.2d 301 (1976). In both instances, the nol presses were entered by the state before jury selection ever began. See Rawlins v. Kelley, 322 So.2d 10 (Fla.1975).

      . No dismissal with prejudice or statute of limitations issues are raised here.

      . McCord dealt with an order suppressing evidence in the county court which the circuit court believed was binding upon it in a related charge against the defendant. Specifically, the defendant’s motion to suppress was granted in county court on misdemeanor charges of possession of narcotics and narcotic paraphernalia. These charges were then dismissed and the defendant was charged with felony possession of a concealed weapon and narcotics in circuit court. The circuit court suppressed the evidence under principles of collateral estoppel but the supreme court reversed, holding that since the defendant had never been placed in jeopardy in the county court, collateral estoppel did not apply.


author: COWART, Judge.

text:
    DOWDA AND FIELDS, P.A., and Alan B. Fields, Jr., Appellants, v. Donald R. COBB, Appellee.
    No. 83-827.
    District Court of Appeal of Florida, Fifth District.
    July 19, 1984.

      Alan B. Fields, Jr. of Dowda & Fields, Palatka, for appellants.
    Michael W. Jones of Baxley & Jones, Gainesville, for appellee.
   COWART, Judge.

This case involves an attorney’s charging lien on a judgment obtained by him for his client.

Appellants, original attorneys for appel-lee, brought suit on a promissory note and recovered judgment in favor of appellee, as judgment creditor, and against certain judgment debtors. When the judgment debtors filed a supersedeas bond and undertook to appeal, appellee discharged appellants as counsel and retained other counsel to represent appellee on that appeal. Appellants then filed in the original action a paper entitled Notice of Intent to Claim Charging Lien. Appellee moved the court to dismiss appellants’ attorney’s charging lien alleging that appellants were asserting a retaining lien on appellee’s file, that ap-pellee needed “his file” to defend the judgment debtors’ appeal and that appellants were not entitled to both an attorney’s charging lien and attorney’s retaining lien. Appellants denied the assertion of a retaining lien stating that it retained only its own office file which contained no papers or documents belonging to the appellee, all of which had been introduced as evidence in the original action. Appellants also moved the trial court to adjudicate and impress an attorney’s charging lien against the judgment that appellants, as counsel, had recovered in favor of appellee. By order dated April 19, 1983, the trial court ordered appellants to deliver their entire office file (with the exception of intra-office notices and memoranda) to successor counsel finding that appellants were “fully secured by the final judgment, the supersedeas bond and the charging lien filed by him in this action.” This is an appeal of the order of April 19, 1983.

In Florida, as in most states, an attorney has a possessory retaining lien on his client’s papers, money, securities and other property in his possession and, according to the circumstances, a charging lien on a judgment, award or decree secured by him, or other property recovered, for his client for fees and costs due him for services rendered to the client in recovering such judgment or property. The charging lien is not dependent upon possession, but is based on equitable principles; the client should not be allowed to appropriate the whole of a judgment, award or decree if the attorney who has secured it has not been compensated.

Attorneys normally maintain an office file relating to matters involving professional services performed for a particular client as to a particular matter. This is commonly referred to as that client’s file but it only relates to that client and the file and its contents is the personal property of the attorney. The attorney’s file may or may not contain documents or other property of the client. The attorney’s file may also contain information about a client’s affairs concerning which the attorney may have an ethical duty to communicate to successor counsel. There is no evidence or other indication that the attorney’s file in this case contained property of the client. The client’s promissory note had been reduced to final judgment and the litigation is over except for the appeal. No reason has been offered why appellants’ office file is needed by the client or successor counsel in order to defend the appeal, nor can we imagine one.

The promissory note contained a provision for payment of attorney’s fees and the judgment included sums on that account. However, the contractual provision for attorney’s fees is for indemnification of the contracting party and the judgment awards sums for attorney’s fees to the client, as judgment creditor, and not to the creditor’s attorneys. Likewise, the su-persedeas bond provides security for the client, as judgment creditor, but not for appellants, the creditor’s attorneys who recovered the judgment for the judgment creditor. The mere filing of a notice of intent to claim a charging lien in the pending original action by the attorney does not establish the attorney’s lien against the judgment nor give adequate constructive notice of the attorney’s charging lien to parties dealing with the client with respect to the judgment. Although there may be other proper remedies for enforcement of an attorney’s lien, it is commonly enforced against the judgment by summary proceedings in the original action. We reverse the order directing appellants to deliver their office files to successor counsel and direct that, after notice and opportunity to the client to be heard, the trial court hear and consider appellants’ motion to adjudicate a charging lien and, if an indebtedness for legal services is found to be due appellants from appellee and if that indebtedness is secured by an attorney’s charging lien against the final judgment, then the trial court should adjudicate the indebtedness and lien, and impress the judgment with that lien, instructing the clerk of the court to make a marginal notation on the recorded judgment so as to give constructive notice of appellants’ charging lien against the judgment.

REVERSED AND REMANDED WITH DIRECTIONS.

DAUKSCH, J., and COLEMAN, T.P., Associate Judge, concur.

      . See generally Chancey v. Bauer, 97 F.2d 293 (5th Cir.1938); Cooper v. McNair, 49 F.2d 778 (D.C.Fla.1931); Gray v. Hopkins-Carter Hardware Co., 32 F.2d 876 (5th Cir.1929); Wilkerson v. Olcott, 212 So.2d 119 (Fla. 4th DCA 1968); 7A C.J.S., Attorney and Client, § 358 (1980); Annot., Rights and Remedies of Client as Regards Papers and Documents On Which Attorney Has Retaining Lien, 3 A.L.R.2d 148 (1949).

      . See generally United States v. Transocean Airlines, Inc., 356 F.2d 702 (5th Cir.1966); Sinclair, etc., and Zavertnik, P.A. v. Baucom, 428 So.2d 1383 (Fla.1983); Winn v. City of Cocoa, 75 So.2d 909 (Fla.1954); Nichols v. Kroelinger, 46 So.2d 722 (Fla.1950); Greenfield Villages v. Thompson, 44 So.2d 679 (Fla.1950); In Re Warner's Estate, 160 Fla. 460, 35 So.2d 296 (1948); Miller v. Scobie, 152 Fla. 328, 11 So.2d 892 (1943); Scott v. Kirtley, 113 Fla. 637, 152 So. 721, 93 A.L.R. 661 (1933); Alyea v. Hampton, 112 Fla. 61, 150 So. 242 (1933); Pasin v. Kroo, 412 So.2d 43 (Fla. 3d DCA 1982); Miles v. Katz, 405 So.2d 750 (Fla. 4th DCA 1981); Conroy v. Conroy, 392 So.2d 934 (Fla. 2d DCA 1980); de la Cruz v. Brown, 338 So.2d 245 (Fla. 3d DCA 1976); Billingham v. Thiele, 107 So.2d 238 (Fla. 2d DCA 1958); 7A C.J.S., Attorney and Client § 359 (1980); Annot., Attorney’s Lien on Property Recovered For His Client, 93 A.L.R. 667, 696 (1934); 4 Fla.Jur.2d, Attorneys at Law § 158 (1978); Note, Attorney and Client: Attorney’s Charging Lien, 4 U.Fla.L.Rev. 58 (1951); 10 Williston on Contracts § 1285B (3d ed. 1967).

      . See Annot., Attorney’s Lien on Property Recovered — Remedies for Enforcement, 93 A.L.R. 667, 696 (1934).

      . In order for a charging lien to be imposed, there must first be a contract, express or implied, between the attorney and client. Greenfield Villages, Inc. v. Thompson, 44 So.2d 679 (Fla.1950); Scott v. Kirtley, 113 Fla. 637, 152 So. 721 (1933); Alyea v. Hampton, 112 Fla. 61, 150 So. 242 (1933).


text:
    Howard WILLIAMS, Appellant, v. The CITY OF MOUNT DORA, Florida, Appellee.
    No. 83-1354.
    District Court of Appeal of Florida, Fifth District.
    July 19, 1984.

      Christopher J. Smith, of Williams & Smith, Tavares, for appellant.
    Harlow C. Middleton, Mount Dora, for appellee.
   COWART, Judge.

This case presents the question of whether a public utility can require an applicant for service to pay a delinquent bill for service previously rendered to some other occupant or owner of a premises as a condition to continuing or reinstating service to the new applicant at the same premises.

Appellee, City of Mount Dora, Florida (municipal utility), operates a municipal electric utility in a certain geographic territory. In 1963 appellant, Howard Williams, and one Gordon Dake built a bowling alley near Mount Dora, Florida. Dake applied to the utility for electrical service and an account was opened in the name of Triangle Lanes, a fictitious or trade name, with no deposit being required. In 1964 appellant purchased Dake’s interest in the bowling alley business. In 1971 the appellant leased the bowling alley for ten years to one Ernie McRee and in 1981 sold the business to McRee taking back a purchase money second mortgage. In September, 1982, in lieu of foreclosure, appellant accepted a quitclaim deed from McRee and reacquired possession of the bowling alley.

During the entire period from 1963 through September, 1982, the electric account with the utility remained in the name of Triangle Lanes, as originally opened.

On September 28, 1982, the utility notified appellant that the electric bill for August, 1982, for over $4,000, was delinquent and the utility intended to terminate electric service to the premises. Appellant had a commitment to a bowling league for 36 weeks and immediately contacted the utility and explained that he was not responsible for the delinquent electric bill because the unpaid service was provided to the premises and used by McRee before appellant reacquired the premises. However, on behalf of the utility, the city mayor and city administrator told appellant that by ordinance the city utility required any person acquiring property to pay the delinquent electric bill of any previous owner or occupant. The city administrator did suggest that in two similar cases the city council had granted “variances” to the ordinance and had excused successor owners from paying prior delinquent bills of predecessors. The administrator further stated that because he, the administrator, had no authority to grant a variance appellant would have to pay the delinquent bill to avoid an immediate termination of service. As an alternative the administrator proposed that “he [Williams] would agree to pay the deposit [of $3,600] and have the account turned over into his name or whatever name he wanted, and we would then request a variance from the city council at the next city council meeting and abide by that decision.” To avoid termination appellant was required to sign the following document:

I, Mr. Howard Williams, agree to request a variance from City Council regarding the payment of an unpaid utility bill at Triangle Lanes, Account #5 32 01 03 600.
If this variance is not provided by City Council I agree to pay the unpaid utility billing for this account in return for having power transferred to my name on this date.

The city council denied the variance, appellant paid the delinquent bill “under protest” and brought a declaratory judgment action to recover the sums paid. The trial court denied appellant recovery and he appeals.

The parties argue various issues under several theories but the trial court held appellant liable on the basis of the writing quoted above explaining that the utility “had every right in the world” to shut off the electric service because it was delinquent and that to avoid that result appellant “made a bargain and he lost in that bargain.”

It is true, as the trial judge stated, that in the absence of statute or contractual agreement to the contrary, a public utility, such as the municipal utility in this case, like any private business furnishing regular services for periodic payment of monetary compensation, is entitled to terminate further service when the recipient breaches an agreement, express or implied, to pay for continued service. However, that is not the dispositive issue in this case.

The first issue is:

If a person is not legally liable for payment of a particular delinquent utility bill for services supplied to a certain premises, can the public utility legally refuse to supply service to that person at the same premises until the delinquent bill is paid?

We answer that question in the negative.

Within the geographic territory a public utility has undertaken to serve and concerning which it has the exclusive legal right to provide necessary services, a public utility has a legal duty to provide services on an equal basis to all users who apply for service at reasonable and non-discriminatory rates and deposits. The providing of utility services by a municipality is a private or proprietary function in the exercise of which the municipality is subject to the same legal rules applicable to private corporations. The fact that a municipal utility may enact its rules and regulations as ordinances does not itself give it rights or duties with respect to users any different than those possessed by private utility companies. Because utility service is vested with a public interest, and the public utility by law is given an exclusive monopoly over services vital to the public, users are entitled to the equal protection provisions of the law and utility service must be provided and administered in all respects fairly, reasonably, and free from opposition and discrimination. A public utility can attach no conditions to its duty to provide services which are unlawful, improper or personal to the user.

In the absence of an applicable and valid statute (and none has been cited or asserted in this case) liability for payment for utility services is based on usual contract law. While utility services may be provided at a particular premises it is a particular person, firm, corporation or other legal entity which is legally liable, on the basis of an express or implied contract, for payment of services rendered. To require an applicant for utility service to pay a debt for which the applicant is not legally liable is an impermissible condition.

The next issue is whether appellant was legally liable on any theory to the city for the utility service represented by the delinquent bill.

(1)If the utility had alleged and proved that the original account had been opened by appellant, he might be contractually liable for all service rendered to the premises without regard to who consumed, or bene-fitted from, the services provided. However, as noted above, the account was not opened by appellant but by Gordon Dake and then it was opened in a fictitious name. Because of the legal problem always created as to the entity, if any, legally liable on the account, it is never good business practice for a creditor to open or maintain an account receivable in a fictitious name.

(2) If the utility had alleged and proved that appellant and Dake were business partners and that Dake was acting on behalf of the partnership in opening the original utility account, appellant may have been liable on that basis.

(3) If the utility had alleged and proved that appellant had actually used, and bene-fitted from, the services supplied, his liability on the theory of implied contract (quantum meruit) might have been possible.

(4) If the utility had alleged and proved that, as part of the consideration for the reconveyance of the premises to appellant from McRee, appellant had agreed to assume and pay the electric bill in question, appellant may possibly have been liable to the city as a third party creditor beneficiary.

(5) As noted above, the trial court held appellant personally liable on the basis of the writing he was required to sign to prevent the utility from terminating electric service to the premises. By that agreement appellant agreed “to pay the unpaid utility billing for this account in return for having power transferred to my name on this date.” (emphasis supplied) The utility never told appellant, as it should have, that even if service under the existing account was terminated for delinquency, the city, as a public utility, had the duty, upon application by appellant, to open a new account with appellant and to supply him services at the premises on the same basis as to rates and deposits as offered and supplied all other consumers. It is obvious from the facts that appellant was wrongfully coerced to execute the writing and to assume a responsibility for a delinquent account for which it was not shown appellant was legally liable, as a condition to the opening of a new account in his name and that the only consideration he received for his promise was that to which he was already lawfully entitled. Therefore his writing is not binding on him.

REVERSED AND REMANDED for entry of judgment in favor of appellant.

DAUKSCH, J., and COLEMAN, T.P., Associate Judge, concur.

      . See generally Annot., "Liability of Premises, or Their Owner or Occupant, for Electricity, Gas, or Water Charges Irrespective of Who is the User," 19 ALR 3d 1227 (1968); 64 Am.Jur.2d, Public Utilities, §§ 60, 67 (1972). Also see section 166.045, Florida Statutes (Ch. 84-292, Laws of Fla., effective June 19, 1984).

      . See, e.g., Reid Development Corp. v. Parsippany-Troy Hills Twp., 10 N.J. 229, 89 A.2d 667 (1952).


author: ORFINGER, Judge.

text:
    Edward Lawrence KEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1496.
    District Court of Appeal of Florida, Fifth District.
    July 19, 1984.
    James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

A negotiated plea which includes an agreement that the defendant may be sentenced to imprisonment for a period of time in excess of the new sentencing guidelines (although within the minimum and maximum sentence limitations provided by law) is a clear and sufficient reason for departure from those guidelines. See Fla.R. Crim.P. 3.701(b)(6).

Notwithstanding that this sentence was imposed following the entry of a guilty plea, defendant has a right to appeal the sentence because of the departure from the guidelines. See § 921.001(5), Fla.Stat. (1983). However, because there was no error in the departure here, the sentence appealed from is

AFFIRMED.

DAUKSCH and COWART, JJ., concur.


author: DAUKSCH, Judge.

text:
    Brian D. CHANEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1855.
    District Court of Appeal of Florida, Fifth District.
    July 19, 1984.
    Brian D. Chaney, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a denial of a Motion for Post Conviction Relief under Florida Rule of Criminal Procedure 3.850. In that Motion appellant requested that the trial court conform his sentence to the requirements of the Supreme Court of Florida’s decision in Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981). Because the sentence is illegal, we vacate it and remand the cause to the trial court for resentencing in accordance with this opinion.

Chaney pleaded nolo contendere to robbery with a firearm. On April 3, 1981, the court adjudicated him guilty and sentenced him to a split sentence pursuant to Section 948.01(4), Florida Statutes. The sentence imposed was a period of incarceration of fifteen years followed by ten years on probation.

In his 3.850 motion, Chaney alleged that the sentence violated the dictates of Vil-lery. Chaney requested the court grant him relief as follows:

WHEREFORE, Movant prays that the Court grant all relief to which he may be entitled in this proceeding, including but not limited to: Correct my sentence by reducing the fifteen (15) year term of incarceration to a one (1) year term, or vacate the judgment of conviction.
2. Such other and further relief as the Court deems just and proper.

On November 22, 1983, the trial court entered an Order denying Chaney’s 3.850 motion. The Order stated these grounds as the basis for denial: “Sentence was based upon a plea agreement. Specific relief sought here is inappropriate.” After the court below denied his Motion for Rehearing, Chaney filed his appeal to this court.

In Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981), the Supreme Court of Florida held that incarceration, pursuant to the split sentence alternatives found in Chapter 948, Florida Statutes, which equals or exceeds one year is invalid. This rule is applicable to incarceration as a condition of probation (Section 948.03(3), Florida Statutes) and to incarceration followed by a specified period of probation (Section 948.01(4), Florida Statutes). The Supreme Court found that the rule it announced in Villery is required in order to construe the split sentence statutes consistently with the state’s parole policy. Florida’s parole policy is that every person who has been sentenced to a term of incarceration of one year or more shall be eligible for parole (Section 947.16, Florida Statutes). Persons who are required to serve a term of incarceration as a condition of probation, or before being released on probation, however, are never eligible for parole because in the first case they are never sentenced, or, in the second, because the terms of Section 948.01(4) so dictate. The Supreme Court, realizing that a trial judge could order a split sentence and thereby insure that a defendant never be released on parole, held that a split sentence may require incarceration for less than one year, but no longer.

In two recent decisions, the Supreme Court held that Villery applies to split sentences entered pursuant to negotiated plea agreements. Forbert v. State, 437 So.2d 1079 (Fla.1983); Brod v. State, 437 So.2d 152 (Fla.1983). Once the Court decided that Villery applies to split sentences ordered pursuant to plea agreements, it confronted the question of what relief a trial court should order in correcting the negotiated illegal sentence.

In Forbert, the defendant pleaded guilty to robbery in exchange for a split sentence of five years imprisonment followed by three years on probation. After a Villery motion to correct the sentence, the trial court resentenced Forbert to eight years in prison with credit for time served. The District Court of Appeal, Fourth District, affirmed but certified the following question to the Supreme Court as one of great public importance:

4. If the original sentence was imposed pursuant to and as part of a negotiated plea, in resentencing a defendant upon a Villery motion to correct an illegal sentence can the trial court impose a longer sentence of imprisonment than originally imposed without giving the defendant an opportunity to withdraw his negotiated plea?

437 So.2d at 1080. The Supreme Court answered in the negative, citing two of its prior decisions for the proposition that a defendant should be allowed to withdraw a plea of guilty where the plea was based on misunderstanding or misapprehension of the facts considered by the defendant in making the plea. Brown v. State, 245 So.2d 41 (Fla.1971); Rubenstein v. State, 50 So.2d 708 (Fla.1951). From that proposition, it follows, the Court reasoned, that when a defendant agrees to a plea bargain with the understanding that the sentence he or she receives in exchange for the plea is legal, when in fact the sentence is not legal, the defendant should be given the opportunity to withdraw the plea when later challenging the legality of the sentence.

The same question was certified to the Supreme Court in Brod v. State. The Court cited its decision in Forbert as dis-positive and again stated the rule:

... where the original “split-sentence” was imposed as part of a plea agreement and on resentencing the prisoner receives a term of imprisonment beyond the limits of incarceration contemplated by the plea agreement, the defendant should have the opportunity to withdraw his plea of guilty.

437 So.2d at 154.

Since the Supreme Court’s decisions in Forbert and Brod, a case reached the Third District Court of Appeal in a posture similar to that of the case at bar. In Santana v. State, 442 So.2d 1103 (Fla. 3d DCA 1983), the defendant moved to correct his sentence pursuant to Villery. The trial court granted the motion and resentenced defendant to a sentence of incarceration longer than the plea bargain called for. The Third District vacated the sentence and remanded the case to the trial court with directions to resentence the defendant.

There are several approaches a court may take when it resentences a defendant whose negotiated sentence is vacated because of a violation of Villery. As the Supreme Court pointed out in Forbert, the state may “exercise its option to accept the plea with the sentence reduced to a legal term.” Cleveland v. State, 394 So.2d 230 (Fla. 5th DCA 1981); See also Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981). If the state does not exercise this option, the trial court should choose one of two alternatives in resentencing the defendant. First, the court may allow the defendant to withdraw his plea, thereby reinstating the charges originally filed against him. Second, the court may resentence the defendant within the parameters of the plea bargain by either changing the period of incarceration which equals or exceeds one year to probation, or vacating the probation portion of the original sentence.

Accordingly, Chaney’s sentence is vacated because, it violates Villery, The case is remanded for resentencing. On remand, the sentencing court should allow the state the opportunity to accept Chaney’s original plea with the sentence reduced to a legal term. If the state elects not to exercise this option the sentencing court should allow Chaney to withdraw his plea or should resentence him within the parameters of the plea agreement by either changing the period of incarceration which equals or exceeds one year to probation, or vacating the probation portion of the original sentence.

Sentence vacated, remanded.

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

      . Villery applies retroactively. 396 So.2d 1107, 1111.


text:
    Michael VITAGLIANO, Appellant, v. STATE of Florida, Appellee.
    No. 84-416.
    District Court of Appeal of Florida, Fifth District.
    July 19, 1984.
    Michael Vitagliano, pro se.
    No appearance for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Michael Vitagliano appeals from an order denying relief under Florida Rule of Criminal Procedure 3.850.

In his pro se petition, Vitagliano alleges ineffective assistance of counsel at both the trial and appellate levels. As to his trial counsel, Vitagliano alleges a conflict of interest and claims that counsel did not devote sufficient time to the case.

Vitagliano does not allege any facts which establish a basis for his allegation of a conflict of interest. Further, he has not alleged any specific omissions on the part of trial counsel. Instead, Vitagliano only says that the Public Defender had numerous other clients and could not spend the time with him which was needed to set the ground work before trial. Vitagliano also alleges that counsel refused to honor his “specific request regarding trial tactics” but he does not say what tactics or defenses he requested which counsel neglected. These allegations are not sufficient. See Knight v. State, 394 So.2d 997, 1001 (Fla.1981); Daniels v. State, 450 So.2d 601 (Fla. 4th DCA 1984).

As to appellate counsel, Vitagliano again merely alleges that “numerous errors [were committed] at trial level” but that counsel failed to raise these issues on appeal. Vitagliano makes absolutely no attempt to specify any of these alleged errors. Such lack of specificity renders this allegation insufficient. The trial court was correct in summarily denying the petition. It was facially insufficient.

AFFIRMED.

COBB, C.J., and DAUKSCH, J., concur.