text:
    Sherl Lanette RAYBUCK, n/k/a Sherl Furman Anaclerio, Appellant, v. Franklin Arnold RAYBUCK, Appellee.
    No. 83-1283.
    District Court of Appeal of Florida, Second District.
    June 20, 1984.

      Veronica E. Donnelly of Donnelly & MeCue, Bradenton, for appellant.
    No appearance for appellee.
   HOBSON, Judge.

Sheri Lanette Raybuck, n/k/a Sheri Fur-man Anaclerio (mother), movant below, appeals a final order 1) denying her motion to hold Franklin Arnold Raybuck (father) in contempt of court for his failure to pay arrearages of child support for the parties’ minor child; 2) deciding that the father does not have to pay child support for a period in which the child stayed with him; and 3) allowing the father a credit against arrearages for the period in which the child stayed with him. We affirm in part and reverse in part.

In 1976 the trial court rendered a final judgment which dissolved the parties’ marriage, awarded custody of the parties’ seven-year-old son to the mother, allowed the father reasonable visitation privileges, and required him to pay a weekly sum for child support. The judgment did not provide that the father would be relieved of his responsibility of making child support payments during periods in which he exercised reasonable visitation rights. In 1983 the mother filed a motion to hold the father in contempt of court for his failure to pay arrearages of child support. After conducting an unrecorded hearing, the court issued its final order which held 1) that, although the final divorce decree ordered the father to pay weekly child support, he did not have to pay child support for an eleven-week period in which the son stayed at his home; 2) that, based on a subtraction of the amount for eleven weeks of child support payments, he owed a lesser amount of arrearages; and 3) that he was not in contempt of court.

The trial court erred both in deciding that the father did not have to pay child support for the eleven-week period in which the parties’ son stayed at his home and in allowing him a correspondent setoff. Past due child support payments constitute vested property rights which are not subject to modification. Pottinger v. Pottinger, 133 Fla. 442, 182 So. 762 (1938); Panganiban v. Panganiban, 396 So.2d 1156 (Fla. 2d DCA 1981); Fox v. Haislett, 388 So.2d 1261 (Fla. 2d DCA 1980); Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977); Petrucci v. Petrucci, 252 So.2d 867 (Fla. 3d DCA 1971). Hence, absent compelling circumstances or a valid defense, a trial court lacks the authority to retrospectively cancel or reduce past due child support payments. Panganiban; Fox; Patterson; Teta v. Teta, 297 So.2d 642 (Fla. 1st DCA 1974). Compelling circumstances did not exist in the case at bar for the court’s reduction in arrearages, and the father did not have an appropriate defense. We note that it has been held that a payor parent is not entitled to reimbursement for child support payments made while the child is staying with the payor parent and while the other parent still has legal custody. Martinez v. Martinez, 383 So.2d 1153 (Fla. 3d DCA 1980). Cf. Tash v. Oesterle, 380 So.2d 1316 (Fla. 3d DCA 1980); Patterson.

As regards future due child support payments, the trial court erred in implicitly modifying the child support provision of the final divorce decree to mean that the father need not make child support payments while he exercises reasonable visitation privileges. A payor parent must continue to make child support payments pursuant to the child support provision of a final divorce judgment until he files a motion for modification and such motion is favorably acted upon. Fox; Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977). Here, the father never submitted such a motion.

The trial court, however, did not err in refusing to find the father in contempt of court. Imposition of contempt as a sanction against a parent who defaults on payment of child support is a discretionary matter, not a matter of right. Fox; Moreland v. Moreland, 358 So.2d 907 (Fla. 1st DCA 1978); Smithwick. The court below did not abuse its discretion by not imposing this sanction. Cf. Pottinger; Fox; Boyle v. Boyle, 194 So.2d 64 (Fla. 3d DCA 1967).

Accordingly, we reverse the portions of the final order which state that the father does not have to pay child support for the period in which the son stayed at his home and which allow him to set off from the amount of arrearages the sum for eleven weeks of child support payments. We affirm the portion denying the mother’s motion to hold the father in contempt.

AFFIRMED in PART and REVERSED in PART.

OTT, C.J., and SCHEB, J., concur.


source: Caselaw Access Project

author: DANAHY, Judge.

license: Public Domain

text:
    Mark Anthony LIVOLSI, Appellant, v. STATE of Florida, Appellee.
    No. 83-1292.
    District Court of Appeal of Florida, Second District.
    June 20, 1984.

      Dennis J. Rehak, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

This appeal is from an order denying appellant’s motion for postconviction relief which was entered after an evidentiary hearing. We affirm in part, reverse in part, and remand.

Appellant was charged in count 1 with “battery upon a law enforcement officer, to wit ... a Lee County Animal Control Officer” in violation of section 784.07, Florida Statutes (1981), and in count 2 with “unlawfully, wantonly, or maliciously shoot[ing]/t-hrowpng] a glass bottle at, within or into a public vehicle located at ... which was then and there being used or occupied by a person(s)” in violation of section 790.19, Florida Statutes (1981). Appellant filed a motion to dismiss count 1 on the ground that the county animal control officer is not a law enforcement officer. The trial court denied this motion. Appellant then entered pleas of nolo contendere to counts 1 and 2 without reserving the right to appeal any dispositive legal issue. The trial court accepted the pleas. In a general order applicable to both counts, the court withheld adjudication, placed appellant on probation for a period of five years, and imposed two special conditions of probation “as to Count 1.”

Approximately nine months later appellant filed a motion to withdraw his pleas, alleging inter alia two basic grounds. First, he urged that the information was fatally defective because it failed to state an offense and thus failed to confer jurisdiction upon the trial court. Second, he asserted that his pleas were involuntary because he was not properly advised by counsel prior to tendering his pleas. After a hearing on appellant’s motion, the trial court acknowledged that in view of the statutes, county ordinance and prevailing case law the county animal control officer was not in fact a law enforcement officer. The court found, therefore, that count 1 failed to charge an offense. The court also acknowledged that when appellant entered his plea as to count 1 he was under a misapprehension of the law and that, therefore, the plea as to count 1 was not entered knowingly and voluntarily. Finally, the trial court found that count 2 of the information was sufficient to charge appellant with the crime of throwing a deadly missile and that appellant had entered his plea to that count knowingly and voluntarily. For these reasons, the court granted appellant’s motion to withdraw his plea to count 1 but denied his motion to withdraw his plea to count 2. However, in allowing withdrawal of the plea as to count 1, the court failed to modify the general order of probation so as to vacate that portion concerning count 1.

We find no merit in appellant’s first contention that the trial court lacked jurisdiction to enter the order solely for the crime charged in count 2. Our examination of the information reveals that the state charged a felony substantially as defined in the statute. Thus, jurisdiction was established in the circuit court. Specifically, the information refers to section 790.19, Florida Statutes (1981), and tracks the statutory language. See State v. Gray, 435 So.2d 816 (Fla.1983); State v. Butler, 418 So.2d 1221 (Fla. 2d DCA 1982); State v. DiGuillio, 413 So.2d 478 (Fla.2d DCA), petition for rev. denied, 419 So.2d 1196 (Fla.1982). The descriptive details of a “glass bottle” rather than a “missile ... or other hard substance” were clearly within the terms of the statute. See Zachary v. State, 269 So.2d 669 (FIa.1972); Catanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971). Therefore, at no time was appellant misled or embarrassed in the preparation of his defense or exposed to double jeopardy. See Gray; Butler; DiGuillio. Although the state could have more precisely alleged the offense, no essential element was totally omitted or left to inference to cause the information to be fatally defective. See Gray; Tucker v. State, 417 So.2d 1006 (Fla. 3d DCA 1982); Asmer v. State, 416 So.2d 485 (Fla. 4th DCA 1982); Green v. State, 414 So.2d 1171 (Fla. 5th DCA), petition for rev. denied, 422 So.2d 842 (Fla. 1982); State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980); Haselden v. State, 386 So.2d 624 (Fla. 4th DCA 1980); State v. Taylor, 283 So.2d 882 (Fla. 4th DCA 1973). And, because the alleged defect is not jurisdictional and was not timely challenged in the trial court, appellant cannot raise it for the first time here. See Fla.R.Crim.P. 3.190(c); Gaskin v. State, 420 So.2d 366 (Fla. 1st DCA 1982), appeal dismissed, 424 So.2d 761 (Fla.1983); Tucker; Asmer; Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982); Fields; Haselden; Taylor; Catanese; Ward v. State, 236 So.2d 187 (Fla. 1st DCA 1970).

Likewise, we find no merit in appellant’s second contention. The trial court did not abuse its discretion in denying appellant’s motion to withdraw his plea to count 2. Our examination of the transcript of the plea colloquy reveals that appellant’s plea to count 2 was independent of his plea to count 1 and stood on its own. It is clear that before the court accepted appellant’s pleas, it conducted a thorough inquiry as required in order to establish the voluntariness and factual basis for each plea. See Williams v. State, 316 So.2d 267 (Fla.1975). There is no question that appellant at the time was alert, intelligent, and fully understood the nature of the offense charged in count 2 and the consequences of entering his plea. Nor is there any doubt he entered the plea to that count based on his best interest. The record, therefore, supports the trial court’s finding that appellant’s plea of convenience to count 2 was freely and voluntarily entered. See Carter v. State, 369 So.2d 968 (Fla. 3d DCA 1979); Stovall v. State, 252 So.2d 376 (Fla. 4th DCA 1971).

While we therefore affirm the order of the court which denied appellant’s postconviction relief as to count 2, we nevertheless find it necessary to reverse and remand this cause for resentencing. We do so because the order of probation as originally rendered and still in effect is illegal and must be vacated. As things now stand, a probationary term remains imposed for count 1. Because the court allowed appellant’s plea to count 1 to be withdrawn, and because the court found the allegations of count 1 do not set out an offense, the court should have vacated that portion of the order which pertains to count 1. See Fla.R.Crim.P. 3.170(f); Frederick v. State, 419 So.2d 736 (Fla. 3d DCA 1982); Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981). Additionally, the probation order leaves a general “sentence” in effect. Pearson v. State, 371 So.2d 569 (Fla. 4th DCA 1979). The order, predicated upon two findings of criminal activity, failed to distinguish whether one or both counts constituted the basis for placing appellant on a single term of five years probation. As such, it is a general order of probation and is invalid. Cervantes v. State, 442 So.2d 176 (Fla.1983); Pearson.

Accordingly, we AFFIRM the order in part but REVERSE and REMAND for correction of the sentence.

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

      . Appellant filed his motion pursuant to Florida Rule of Criminal Procedure 3.850.

      . The pertinent portion of section 790.19, Florida Statutes (1981), provides:
      Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied ... shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.


author: OTT, Chief Judge.

text:
    BLOSAM CONTRACTORS, INC., a/k/a Blossam Construction, a Florida corporation, and National Fire Insurance Company of Hartford, a Connecticut corporation, Appellants, v. Randy JOYCE, d/b/a Backhoe of Florida, Appellee.
    No. 83-2030.
    District Court of Appeal of Florida, Second District.
    June 20, 1984.

      Peter P. Murnaghan, C. Kenneth Stuart, Jr., and John C. Bales of Holland & Knight, Tampa, for appellants.
    David H. Galloway of Edwards, Sawyer & White, Plant City, for appellee.
   OTT, Chief Judge.

Blosam Contractors, Inc., a general contractor on a municipal construction project, and its surety, National Fire Insurance Company of Hartford, appeal from an adverse final judgment in favor of a sub-subcontractor, Randy Joyce, d/b/a Backhoe of Florida, on the sub-subcontractor’s action to recover on a payment and performance bond. The sole issue is whether Backhoe complied with the forty-five-day notice provision of section 255.05(2), Florida Statutes (1981), a prerequisite to recovery against the general contractor and the surety. We hold that Baekhoe complied with the notice provision and therefore affirm.

Blosam entered into an agreement with the Winter Haven Housing Authority to construct certain public housing projects. In accordance with section 255.05(1), Blo-sam obtained a payment and performance bond with a surety insurer. A portion of the construction work was subcontracted to Cherokee Underground, Inc. Cherokee in turn entered into an agreement with Backhoe to provide certain labor and equipment for the project. Baekhoe commenced furnishing such labor and equipment on February 8, 1982. Baekhoe subsequently mailed a notice to the contractor indicating that it intended to look to the bond for protection. The notice was sent to “Blo-sam Construction” by certified mail to an address posted at the work site. The return receipt was dated March 25, 1982, the forty-fifth day after Baekhoe began furnishing labor and materials for prosecution of the work. Jacquelyn Shepard, a payroll clerk, signed the receipt. In the normal course of handling Blosam’s incoming mail, the notice was forwarded to Donald Smith, Blosam’s comptroller and treasurer, the following day for appropriate action. In a letter dated March 30, 1982, Blosam (by Smith) tacitly admitted receipt of the notice by requesting monthly statements from Baekhoe concerning the subcontractor’s account. At trial, Blosam admitted that it received actual notice of Backhoe’s intention to look to the bond for protection.

Based on these facts, the trial court determined that Baekhoe complied with the first or forty-five-day notice requirement of section 255.05(2).

On appeal, Blosam seeks reversal of the trial court’s determination on the ground that the notice was defective. Specifically, Blosam asserts that the notice failed to strictly comply with the notice provisions of the Mechanics’ Lien Law, section 713.01, et seq., Florida Statutes (1981), because the mailing was not addressed to an officer, director, managing agent, or business agent of Blosam.

The chief purpose of section 255.-05(1) is to protect subcontractors and suppliers on public construction projects by providing them with an alternate remedy to the mechanics’ lien available on private construction projects. City of Fort Lauderdale v. Hardrives Co., 167 So.2d 339 (Fla. 2d DCA 1964). Section 255.05(2) protects the contractor and the contractor’s surety from having to account to unknown subcontractors and suppliers. School Board of Palm Beach County v. Vincent J. Fasano, Inc., 417 So.2d 1063 (Fla. 4th DCA 1982). One of the keys to protecting the contractor and the surety is the requirement of prompt notice of a claimant’s intention to rely on the bond for protection. Without specifying the manner in which service must be accomplished, section 255.-05(2) requires the claimant to “furnish the contractor” with such notice within forty-five days after beginning to furnish labor, materials, or supplies for the prosecution of the work.

In order to resolve ambiguities in section 255.05, the courts have looked to the Mechanics’ Lien Law and the Miller Act, 40 U.S.C. 270a et seq., for guidance. See Miller v. Knob Construction Co., 368 So.2d 891 (Fla. 2d DCA), cert. denied, 378 So.2d 346 (Fla.1979). However, reliance on the Mechanics’ Lien Law and/or the Miller Act as interpretive aids of section 255.05 is not always necessary nor is it mandated by the statute. See generally Winchester v. Florida Electric Supply, Inc., 161 So.2d 668 (Fla. 2d DCA 1964). Whether the notice provisions of section 255.05(2) have been satisfied must be decided on a case-by-case basis with the purpose of the notice requirement borne in mind.

On the facts before us, it is unnecessary to rely on other legislative enactments to determine whether Backhoe furnished the contractor with the forty-five-day notice mandated by section 255.05(2) in a timely fashion. Backhoe’s notice was received in Blosam’s office within the forty-five-day period. In fact, Blosam concedes that the service by mail would have fully complied with the statutory notice provisions of the Mechanics’ Lien Law had the letter simply been addressed to the officer who received it. The fact that the notice was addressed to the corporation itself rather than to an officer, director, managing agent, or business agent is inconsequential in the case sub judice, since the notice was sent to the contractor at the address it had posted at the work site and the notice was actually promptly received by Blosam’s comptroller. Moreover, the notice fully and completely informed Blo-sam of the sub-subcontractor’s existence and its intention to rely on the bond. The purpose of the forty-five-day notice requirement, i.e., providing the contractor with notice of potential claimants on the bond, was satisfied. Accordingly, we hold that the notice furnished to Blosam by Backhoe complied with the notice requirements of section 255.05(2).

Even if we agreed with appellants, which we do not, that section 713.-18(1) provides the exclusive means for service of the notices required in section 255.-05(2), we would nevertheless affirm on the ground that the mailing, which was addressed to the corporation rather than to an officer, director, managing agent, or business agent, substantially complied with the requirements of section 713.18(l)(c) under the facts of this case. See Bowen v. Merlo, 353 So.2d 668 (Fla. 1st DCA 1978) (fact that notice was mailed by regular mail rather than by certified mail did not render notice defective under section 713.18(l)(c) since owner received actual notice of the claim of lien); see generally United States v. Barlows Commercial Construction Co., 567 F.Supp. 464 (D.D.C.1983) (actual notice sufficient to satisfy Miller Act although notice provided by subcontractor’s supplier was not in strict compliance with the Act’s notice provisions). Continental Home Parks Inc. v. Golden Triangle Asphalt Paving Co., 291 So.2d 49 (Fla. 2d DCA), cert. denied, 295 So.2d 632 (Fla.1974), relied upon by appellants, is distinguishable because in that case there was no allegation that any responsible official of the corporation ever received the notice. Bowen v. Merlo, supra.

AFFIRMED.

DANAHY and LEHAN, JJ., concur.

      . Section 255.05(2), Florida Statutes (1981), provides:
      A claimant, except a laborer, who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 45 days after beginning to furnish labor, materials, or supplies for the prosecution of the work, furnish the contractor with a notice that he intends to look to the bond for protection. A claimant who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 90 days after performance of the labor or after complete delivery of the materials or supplies, deliver to the contractor and to the surety written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. No action for the labor, materials, or supplies may be instituted against the contractor or the surety unless both notices have been given. No action shall be instituted against the contractor or the surety on the bond after 1 year from the performance of the labor or completion of delivery of the materials or supplies.

      . It is undisputed that Baekhoe complied with the second or ninety-day notice requirement of section 255.05(2).

      . Section 713.18(1) provides the following methods for service of notices, claims of lien, affidavits, assignments, and other instruments under the Mechanics’ Lien Law:
      (a) By serving in the manner provided by law for the service of process.
      (b) By actual delivery to the person to be served; or, if a partnership, to one of the partners; or, if a corporation, to an officer, director, managing agent, or business agent thereof.
      (c) By mailing the same, postage prepaid, by registered or certified mail to the person to be served at his last known address and evidence of delivery.
      (d) If none of the foregoing can be accomplished, by posting on the premises.


author: LEHAN, Judge. SCHOONOVER, Judge,

text:
    William Edward RICE, Appellant, v. STATE of Florida, Appellee.
    No. 83-2195.
    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 Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

We reverse defendant’s conviction. The issue of the voluntariness of defendant’s confession was addressed by the trial court at the hearing on defendant’s motion to suppress the confession. But it is not unmistakably clear from the record that the trial judge’s denial of the motion to suppress was predicated upon his conclusion that the confession was voluntary. Peterson v. State, 372 So.2d-1017, 1021 (Fla.2d DCA 1979), aff'd, 382 So.2d 701 (Fla.1980).

The procedure to be followed by a trial court in this type of situation is stated by the Florida Supreme Court in Peterson as follows:

When the admission of a confession is an issue because of a factual controversy as to its voluntariness, it is the responsibility of the trial judge to first find that it was voluntary before submitting it to the jury.... When the trial judge admits into evidence a statement or confession to which there has been an objection, on review the record must reflect with unmistakable clarity that he found that the statement or confession was, by the preponderance of the evidence, voluntary .... If an independent review of the record fails to disclose with unmistakable clarity that the trial judge found that the statement was voluntary ... or if it appears that he imposed upon the state a lesser burden of proof than preponderance of the evidence in weighing the question of voluntariness, it is reversible error.

382 So.2d at 702.

We have considered whether under these types of facts the trial court’s failure to make such a finding unmistakably clear should be harmless error. The argument could go: Even if, as it appears, the trial court left the determination of voluntariness to the jury, the record shows that the state proved by a preponderance of the evidence that the confession was voluntary, which would have allowed the jury to hear the confession and make their own judgment about it; therefore, there is only harmless error because the effect of the trial court’s ruling was the same as the effect of a proper ruling on voluntariness, i.e., admitting the confession into evidence for consideration by the jury. However, we cannot say in this case, which involved conflicting evidence on voluntariness, that the trial judge would necessarily have ruled that the confession was voluntary. Also, we cannot ignore the foregoing specific language of the Florida Supreme Court that the record “must reflect with unmistakable clarity that he found that the statement or confession was, by the preponderance of the evidence, voluntary.” That is, the requirement is not that the trial court send the issue of voluntariness of the confession to the jury; the requirement is that the trial court must first make a finding (even though not necessarily specific) that by the preponderance of the evidence the confession was voluntary. Of course, thereafter when the issue is before the jury, the jury may disregard certain evidence and, accordingly, may in effect overrule the trial court’s finding. But the fact that, as indicated in this court’s Peterson opinion, 372 So.2d 1019 n. 1, the jury also is to make a determination as to volun-tariness does not relieve the trial court of the obligation to first make the foregoing determination.

The conclusion having been reached that we must find reversible error, there remains the matter of the disposition of this case henceforth. We were tempted to use a method of disposition under which the case would be remanded for a court determination of voluntariness. This type of method could include the following: (1) if upon remand the trial court finds that the confession was not shown by the preponderance of the evidence to have been voluntary, defendant should be allowed the opportunity to withdraw his nolo contendere plea; (2) if upon remand the trial court finds that the confession was shown by the preponderance of the evidence to have been voluntary, then there would be no reason to permit the defendant to withdraw his plea, and the conviction would stand. That type of disposition might be argued to be appropriate since the plea was made in this case after the denial of defendant’s motion to suppress the confession, i.e., at the time when defendant knew, as he would know upon remand if the trial court makes the foregoing determination of voluntariness, that absent his plea the issue of voluntariness is determinable by the jury. However, Greene v. State, 351 So.2d 941 (Fla. 1977), which requires remand for a new trial, is controlling. Greene disapproves of the foregoing possible method of disposition on the basis of due process concerns.

REVERSED AND REMANDED FOR A NEW TRIAL.

OTT, C.J., concurs.

SCHOONOVER, J., dissents with opinion.

SCHOONOVER, Judge,

dissenting.

I respectfully dissent. A trial court’s ruling on a motion to suppress comes to this court with a presumption of correctness. Therefore, we must interpret the evidence, reasonable inferences, and deductions derived therefrom in a manner most favorable to upholding the ruling. McNamara v. State, 357 So.2d 410 (Fla.1978).

An independent review of the record in the case sub judice fails to reveal anything that would overcome this presumption. Furthermore, the record reflects that the trial judge met the requirements of Peterson, even though he did not use the magic word “voluntary” when denying the appellant’s motion to suppress. See Antone v. State, 382 So.2d 1205, cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980). I, accordingly, would affirm.

      . With regard to, and with respect for, the dissenting opinion, there is a difference of views between the majority and the dissent as to what the record reflects. The majority view is that an independent review of the record does not, in the words of Peterson, "disclose with unmistakable clarity that the trial judge found that the statement was voluntary....” Whether or not we feel that the trial judge would or could, from the evidence, make such a ruling is not the issue under the case law, including Antone v. State, 382 So.2d 1205, cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980). The case law seems clear that the fact that the able trial judge in this case denied the motion is not basis to use a presumption of correctness to conclude that it was unmistakably clear that he made the requisite finding. The record reflects that in a dialogue with the attorneys after he had read over the jury instructions and had raised with the attorneys the issue of "whether or not this [vol-untariness of the confession] is a jury question as opposed to the court ruling at this time,” the trial judge denied the motion to suppress and stated, "It is a matter which can properly go before the jury to determine the matter of vol-untariness.” Accordingly, the requisite unmistakable clarity does not appear. The conclusion could well be drawn that the matter was left to the jury.


author: COBB, Judge.

text:
    David Kim HARGIS, Appellant, v. STATE of Florida, Appellee.
    No. 83-585.
    District Court of Appeal of Florida, Fifth District.
    June 21, 1984.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and" Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

The appellant, Hargis, pled nolo con-tendere to violating his probation on two burglary charges. He appeals, first claiming his sentencing was violative of section 775.14, Florida Statutes (1983) and, second, contending that the probationary portion of a sentence violative of the Villery case is “void” and therefore cannot be legally violated (even though Hargis expressly declined to seek vacation of the sentence via 3.850). These two assertions are wholly without merit.

The appellant also contends, however, that his sentencing hearing was defective because the trial court violated Florida Rule of Criminal Procedure 3.720, which provides in pertinent part:

As soon as practicable after the determination of guilt and after the examination of any presentence reports the sentencing court shall order a sentencing hearing. At the hearing the sentencing court shall:
(b) Entertain submissions and evidence by the parties which are relevant to the sentence....

At the sentencing hearing, Hargis’ trial counsel attempted to present a five-minute tape, consisting of the comments of three witnesses, for consideration prior to imposition of sentence. The following colloquy occurred:

MR. LEVIN: Judge, I know this is a bit unusual request, and I have to be candid. I was retained just last week on this case.
There were three people who wanted to be heard, and I was not able to produce them for one was in California, one is in Marianna, Florida, and one is traveling around the country.
I’ve prepared a short tape recorded comments that are, I mean, five minutes total length of the three. I’d ask the Court to at least hear those before—
THE COURT: You could have given me the tape last night. I would have listened to it.
MR. LEVIN: I was not aware the Court had facilities, even, to hear it. It’s, I promise you, very, very brief.
THE COURT: I’m not going to take the time. I expect these things to come to me ahead of time.
Norman, you’ve been here long enough to know what my rules are with regard to other testimony. First, you got to file the motion if you want to have them live.
In this situation, since I don’t have a rule concerning tape recordings, it’s very innovative. I like the idea. You should have given me the tape. I could have listened to it last night. I could have gotten all the information.
I’m not going to take the time.
MR. LEVIN: I would like to summarize. Can I summarize?
THE COURT: (Shakes head.)

Rule 3.720(b) makes it mandatory for a trial court to entertain submissions and evidence which are relevant to the sentence. If the trial court refuses to allow a defendant to present matters in mitigation, the case must be remanded for a sentencing hearing and resentencing. Miller v. State, 435 So.2d 258 (Fla. 3d DCA 1983); Riley v. State, 423 So.2d 576 (Fla. 2d DCA 1982).

In Miller, the defendant was not prepared to offer mitigating factors immediately after the trial and requested a continuance. The trial court denied this request. The Third District affirmed the sentence, noting that the defendant was given an opportunity to present matters in mitigation, but that he was unprepared to do so. The court held that Rule 3.720(b) only requires that the defendant be given an “opportunity” to present matters in mitigation and that no abuse was shown in the denial of the motion for continuance. See also Cheatham v. State, 346 So.2d 1218 (Fla. 3d DCA 1977) (court not compelled under Rule 3.720 to grant the defendant a continuance prior to sentencing).

In the instant case, the evidence sought to be introduced consisted of a tape of recorded comments by three individuals. The defense counsel said that he was submitting this tape in lieu of their live testimony, since the parties could not be present. No motion for continuance to enable the defendant to procure the parties was made. The trial court denied the request to listen to the tapes, primarily because they were not presented before the hearing. The court also refused to allow defense counsel to summarize the tapes. The defendant was given an opportunity to testify at the hearing.

The trial court’s actions contravened Rule 3.720, particularly since the trial court refused to even hear a summary of the proposed evidence. The evidence might well be inadmissible as hearsay or as irrelevant; however, without a proffer of the evidence, this court is unable to determine that. See Brown v. State, 431 So.2d 247 (Fla. 1st DCA 1983).

The convictions are affirmed, but the sentences are reversed and the cause remanded for resentencing.

AFFIRMED in part; REVERSED in part; and REMANDED.

DAUKSCH and SHARP, JJ., concur.

      . Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981).


author: COWART, Judge.

text:
    CHEROKEE ENTERPRISES, INC., Appellant, v. Susan ROGERS, et al., Appellees.
    No. 83-751.
    District Court of Appeal of Florida, Fifth District.
    June 21, 1984.
    James R. Dressier, Cocoa Beach, for appellant.
    James T. Walker of Brennan, McAliley, Hayskar, McAliley & Jefferson, P.A., Fort Pierce, for appellees.
   COWART, Judge.

This case involves the vicarious liability of the owner of a motor vehicle for damages to a third party caused by the negligent operation of the vehicle by a thief who stole it from the owner’s bailee.

Appellee Susan Rogers, the owner, delivered possession of her automobile to one George Rose, as bailee, so that he could drive it a few days to determine if he wished to buy it. Later, after drinking alcoholic beverages with a stranger, the bailee passed out and the stranger stole the bailee’s wallet and the keys to the bailed automobile from the bailee’s pants pocket and then stole the automobile and negligently operated it and collided with and damaged appellant’s trenching machine. Appellant appeals a summary judgment entered in favor of the owner and her insurance company. We affirm.

Of course, appellee, as owner, would have been vicariously liable for damages caused by the negligent operation of her automobile by her bailee, Southern Cotton Oil Company v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Appellee, as owner, would have also been liable for damages caused by the negligent operation of her automobile by a thief whom the owner had negligently permitted to steal her automobile such as by leaving her keys in the ignition lock, Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977), or in an open glove compartment, Schwartz v. American Home Assurance Company, 360 So.2d 383 (Fla.1978). See also Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467 (Fla. 1978). However we know of no Florida case that has held an automobile owner vicariously liable for a bailee’s negligence in failing to prevent a bailed vehicle from being stolen from the bailee as distinguished from the owner’s vicarious liability for the bailee’s negligent operation of the vehicle. Pearson v. St. Paul Fire and Marine Insurance Company, 187 So.2d 343 (Fla. 1st DCA 1966), and Commercial Carrier Corporation v. S.J.G. Corporation, 409 So.2d 50 (Fla. 2d DCA 1981), review denied, 417 So.2d 328 (Fla. 1982), hold to the contrary, and we follow those cases.

AFFIRMED.

COLEMAN, T., Associate Judge, concurs.

DAUKSCH, J., concurs in conclusion only, without opinion.


author: PER CURIAM. COWART, Judge,

text:
    Tony Lorenzo PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1276.
    District Court of Appeal of Florida, Fifth District.
    June 21, 1984.
    James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellant Div., Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH, and COBB, JJ., concur.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

We are affirming Perry’s conviction of attempted first degree murder which was obtained under jury instructions authorizing a conviction if the jury found an attempt to commit a premeditated first degree murder or if a death had resulted from the commission of the armed robbery or the armed burglary of a dwelling of which Perry was also charged.

Notwithstanding the matters argued in the dissent in Amlotte v. State, 435 So.2d 249 (Fla. 5th DCA 1983), there is no difficulty in this case with Perry’s conviction of attempted murder because the allegations in the charging document and the proof at trial were adequate to show that Perry’s attempted murder of his victim actually consisted of what was, in fact, an aggravated battery committed with a specific intent to kill the victim, notwithstanding that the attempted murder was committed incidental to an on-going armed burglary (of which Perry was also convicted) and that Perry also committed an armed robbery of the victim (for which Perry was also convicted). See Taylor v. State, 444 So.2d 931 (Fla.1983). Also see the separate opinion in Baker v. State, 431 So.2d 263 (Fla. 5th DCA 1983).

If Perry’s attempted murder victim had died the evidence would have supported a charge and conviction of premeditated murder (§ 782.04(l)(a)l., Fla.Stat.). Accordingly, there need be no double jeopardy problem in this case such as is involved when there is a conviction of felony murder and of the underlying felony. See Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984).


author: PER CURIAM. DAUKSCH, Judge,

text:
    Grace B. GARBADE, Appellant, v. PUBLIX SUPER MARKETS, INC., et al., Appellees.
    No. 83-1325.
    District Court of Appeal of Florida, Fifth District.
    June 21, 1984.
    Thomas E. Whigham of Stenstrom, McIntosh, Julian, Colbert & Whigham, P.A., Sanford, and Marcia K. Lippincott, P.A., Orlando, for appellant.
    Joseph W. Thomas, II of Cooper, Riss-man and Weisberg, P.A., Orlando, for ap-pellee Publix Super Markets, Inc.
    Leslie King O’Neal of Markel, McDo-nough & O’Neal, Orlando, for appellee The Mace Rich Co.
   PER CURIAM.

AFFIRMED.

COWART, J., and COLEMAN, T., Associate Judge, concur.

DAUKSCH, J., concurs in part and dissents in part with opinion.

DAUKSCH, Judge,

concurring in part; dissenting in part:

In my opinion the complaint against ap-pellee Publix sufficiently alleges negligent conduct which caused injury to appellant. Perhaps a summary judgment or a directed verdict or a jury verdict may befall the plaintiff because she is unable to support her allegations but she has alleged enough. I would reverse the order dismissing the complaint as to Publix.


text:
    Edward CAFFIN, Appellant, v. Rena Francis Crawford CAFFIN, Appellee.
    No. 83-1566.
    District Court of Appeal of Florida, Fifth District.
    June 21, 1984.

      J. Richard Staley, Orange City, for appellant.
    No appearance for appellee.
   COWART, Judge.

We construe the modification award of exclusive possession of the husband’s one-half interest in the prior marital home to the wife for life to be the adjudication of a spousal support obligation (of shelter in kind) which is always subject to modification on a showing of a substantial change in circumstances. As construed, we uphold this support award because it is based on a finding by the trial court of the wife’s need and the husband’s ability which is a factual finding with a presumption of correctness. See Kuvin v. Kuvin, 442 So.2d 203 (Fla. 1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Duncan v. Duncan, 379 So.2d 949 (Fla.1979); Cone v. Cone, 449 So.2d 867 (Fla. 5th DCA 1984). See also Silver and Pollock, Awards of Exclusive Possession of Marital Residence, 58 Fla.Bar J. 301 (1984).

AFFIRMED.

ORFINGER, C.J., and STROKER, R.J., Associate Judge, concur.


author: DIXON, Chief Justice.

text:
    KENNER INDUSTRIES, INC. v. SEWELL PLASTICS, INC. and Joe N. Guy Company, Inc.
    No. 83-C-2128.
    Supreme Court of Louisiana.
    May 14, 1984.
    Mack E. Barham, John F. Whitney, Constant G. Marquer, III, Barham & Churchill, New Orleans, for plaintiff-applicant.
    Steven F. Griffith, Sr., New Orleans, for defendant-respondent.
   DIXON, Chief Justice.

Kenner Industries, Inc. brings this suit for payment on a subcontract and for recognition of a subcontractor’s lien. Defendant, Joe N. Guy Company, Inc., contracted with defendant, Sewell Plastics, Inc., to build a 100,000 square foot addition onto Sewell’s warehouse in Reserve, Louisiana. Guy arranged for Kenner to provide the needed fill for the job site.

In July, 1979 Kenner and Guy agreed that Kenner would “furnish pump sand delivered to the job site and necessary labor and equipment to spread and compact in place to within 95% standard proctor method of testing. Unit Price $4.20 compacted in place.” The subcontract was written on Guy’s standard contract form and noted an approximate total contract sum of $63,000. It was amended on August 13, 1979 to include stripping an area 295' X 485' for a lump sum additional amount of $4,200.

After the work began, Kenner billed Guy monthly for the cubic yards of sand delivered to the job site. Guy paid the first invoice, less 10% retainage, without objection or inquiry. It did not pay the subsequent invoices.

After all the sand had been delivered and compaction was completed to Guy’s satisfaction, Guy announced that it would not pay any additional monies for the sand, contending that the contract was either a lump sum contract, or one calling for payment per compacted cubic yards, measured in place.

Kenner sued to have its subcontractor’s lien recognized, and for $99,678.96, the remainder of its charge for the sand, plus 25% attorney’s fees, legal interest and costs of court. Guy answered, tendering payment of $3,058.02, and claiming that Kenner, with that tender, had been paid in full.

The trial judge noted that “it is the industry custom in this area to charge by the truckload,” but concluded that this contract called for Kenner to be paid “$4.20 per cubic yard for each compacted yard in place.” He relied on expert testimony presented at trial to determine the number of compacted yards of sand under the building, and cast the defendants to pay for 18,475.4 cubic yards of compacted sand, less whatever had already been paid by defendant Guy.

The trial judge additionally awarded to Kenner $2,520 ($4.20 per cubic yard for 600 cubic yards of sand, measured as delivered) for sand used to construct a road across a field to the job site, because the defendant had barred Kenner’s use of the only ingress and egress to the job site. The court of appeal affirmed, 437 So.2d 1191 (La.App. 1983), finding no error in the trial court’s conclusion that the contract was not ambiguous.

“Agreements legally entered into have the effect of laws on those who have formed them.” C.C. 1901. Courts are bound to give legal effect to agreements according to the true intent of the contracting parties. C.C.1945. That intent is determined by the words of the contract when they are clear and explicit and lead to no absurd consequences. C.C.1945.

When the intent is not clear, it may be discerned by the manner in which the parties execute their agreement. C.C.1956. If doubt or obscurity exists because one party failed to give an explanation he ought to have given, the construction most favorable to the other party shall be adopted. C.C.1958.

The meaning of the contract language in dispute, “unit price $4.20 compacted in place,” is not clear or unambiguous. It does not indicate the unit of measurement to be used, although the parties do not dispute that cubic yards was intended. Nor does it indicate the time and place the cubic yard unit was to be measured— whether when and as delivered, as is the industry custom, or after it has been compacted in place, as the defendant contends.

In March, 1979 an employee of Guy called Kenner and obtained a price quotation for 20,000 cubic yards of sand delivered. He later called Kenner back to ask Kenner’s total price for delivering, spreading and compacting the sand. He was told $4.20 per yard.

In July, 1979 Kenner and Guy signed an agreement for delivering, spreading and compacting sand at $4.20 per yard. Ken-ner then entered a subcontract with Scott Jackson to pay him $3.80 per cubic yard, measured by delivered truckloads, for the sand, labor and equipment to complete the fill and compaction.

Jackson began delivering sand in August, 1979. Guy soon determined that approximately one-half of the area to be filled was covered with a muddy topsoil that needed to be removed before the fill was added. On August 13 Guy and Kenner agreed to a change order.

According to the written change order, Kenner was to remove four inches of topsoil from an area 295' X 485', and then to remove the soil from the site. Testimony at trial indicates that the area cleared was 225' X 203' and varied in depth from four to eight inches. The charge for this additional work, $4,200, did not include any amount to pay for sand to replace the soil removed.

When they began delivery, Jackson’s trucks entered and left the job site through Sewell’s main entrance and parking lot. Because of the congestion this caused, Se-well asked Jackson to use another route from the road, crossing a field. Finding his trucks getting stuck in the soft earth, Jackson asked for and was given oral permission from Guy to create a sand road across the field. Jackson’s trucks then entered through the parking lot, and left across the field.

Jackson also dumped sand around the perimeter of the building site to allow machinery working at the site to have a firm surface on which to sit. There was no change in the subcontract for these additional uses of sand.

On August 20 Kenner billed Guy for 15,708 cubic yards of sand, and for the mucking out authorized by the change order. Guy paid the invoice, retaining 10%, even though the invoiced amount was greater than the total price indicated on the contract, and even though Guy knew the job was far from complete. Kenner billed Guy again on September 19, October 22 and November 21, each time billing for the number of cubic yards of sand delivered.

Kenner contends that it expected to be paid for each cubic yard of sand delivered, as is the industry custom. Consistent with that belief, it obligated itself to pay according to delivered cubic yards. It did not object when the mucking out increased the area to be filled, or when sand was delivered outside the perimeter of the building. Kenner expected to be paid for delivered cubic yards, wherever and however the sand was put to use at the site.

The record shows that when payment for sand is to be made per compacted cubic yard, prior to providing a price quotation, the sand hauler will measure the site to determine the volume of the area to be filled. He will then convert that volume into the number of cubic yards of sand he must deliver, since he will pay for the sand by the truckload or by the delivered cubic yard. The difference in volume between sand on the truck and compacted sand could be 50% to 80%.

Kenner did not attempt to learn the measurements of the area to be filled, or attempt to estimate the number of delivered cubic yards which would be necessary to provide a needed number of compacted cubic yards.

Kenner kept a count of the number of yards delivered to the site, and indicated that number on each invoice presented for payment. Although Kenner was not being paid, it continued to pay Jackson weekly, by the truckload, for sand delivered.

Guy contends that it intended to pay per compacted cubic yard. However, Guy did not provide Kenner with plans for the building, or discuss with Kenner the characteristics of the fill site. It did not measure the site before agreeing to pay for the fill, and, until this litigation was brought, it displayed no intent to determine the exact number of compacted yards of sand in the fill area.

The intent of a party as it entered an agreement can be determined by the manner in which it operates under the agreement. C.C.1956; Book v. Schoonmaker, 210 La. 94, 102, 26 So.2d 366, 369 (1946). As Kenner submitted invoices to Guy, Guy collected from Kenner the individual truck trip tickets showing how much sand was delivered to the site. By concerning itself with the individual truck trip tickets, Guy indicated an intent to pay Kenner per delivered cubic yard. It waited until the job was finished to announce that the invoices based on cubic yards delivered would not be honored.

Guy accepted and paid the first invoice submitted, paying for delivered cubic yards. With that first invoice, Guy was put on notice that Kenner expected to be paid per delivered cubic yard. It should have sought clarification then instead of acquiescing in that expectation by making payment. Guy’s silence indicated assent to Kenner's interpretation of the contract. RTL Corporation v. Manufacturer’s Enterprises, Inc., 429 So.2d 855 (La.1983).

Guy argues that “compacted in place” is repeated in the contract language, coupled with the unit price, to show that “compacted” relates to the unit price. They argue that “unit price $4.20 compacted in place” means “$4.20 per compacted cubic yard measured in place.” It could as easily mean that the $4.20 unit was a cubic yard of sand on the truck, which was to be placed and compacted. The latter interpretation is more defensible, given the actions of the parties and the evidence presented at trial.

The customs of the industry may be considered when construing ambiguous contracts. Henry v. The Ballard & Cordell Corp., 418 So.2d 1334, 1340 (La.1982). The trial judge was not incorrect in finding that it is the custom of the industry in this area to charge by the truckload; his result is supported by testimony at trial. Any deviation from industry custom should have been expressly stated in the agreement.

Guy prepared the subcontract and had the opportunity to make clear that payment for the sand would be based on compacted units. "... the ambiguity or contradiction which existed in the language of the contract must be construed against the party who prepared the contract....” Kuhn v. Stan A. Plauche Real Estate Co., 249 La. 85, 93, 185 So.2d 210, 213 (1966).

Kenner has asked that we recognize its lien against Sewell under the Private Works Act, R.S. 9:4801 ff. Guy opposed the lien, arguing that Kenner failed to properly itemize its claim. The lien instruments in the record detail the substance of the contract, the unit price and the total due, and describe each invoice. The affidavit sufficiently identifies the amount and nature of the obligation. Defendant’s opposition is without merit.

Kenner has also demanded 25% attorney’s fees, claiming that the suit is one on open account. To the contrary, this is a one time construction contract. The parties did not agree to a course of dealings over a period of time, but agreed that Kenner, in accord with a particular contract, would do a particular job. Amending the original contract did not create an open account. Kenner is not entitled to attorney’s fees under R.S. 9:2781. See Herb’s Machine Shop, Inc. v. The John Mecom Company, 426 So.2d 762 (La.App.1983); O.J. Rivero Towing Company v. Coastal Flex Co., Inc., 414 So.2d 1384 (La.App. 1982).

For the reasons assigned, it is ordered that the judgment appealed from be annulled and set aside, and that there now be judgment in favor of Kenner Industries, Inc. and against Joe N. Guy Company, Inc. and Sewell Plastics, Inc. in the amount of $99,678.96 with legal interest from date of demand, and further that there be judgment recognizing Kenner’s lien and privilege against Sewell Plastics, Inc. dated December 7, 1979 and filed in the records of the Clerk of Court for the Parish of St. John the Baptist on December 11, 1979, bearing numbers 70362 and 70363, all at the cost of defendants Joe N. Guy Company, Inc. and Sewell Plastics, Inc.

      . Subcontract between Joe N. Guy Company, Inc. and Kenner Industries, Inc. to furnish work required for construction of an addition to Se-well Plastics, Inc. dated July 12, 1979.

      . Kenner has paid $133,830.08 to Jackson Services under its subcontract and owes $14,869.12, the 10% retainage, for 38,184 cubic yards of sand. The dollar amounts include $3,240 paid and $360 owed for work done pursuant to a change order not in dispute here.


author: MARCUS, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Clyde P. MARTIN, Jr.
    No. 83-B-0578.
    Supreme Court of Louisiana.
    May 14, 1984.
    Thomas 0. Collins, Jr., Richard A. Deas, Wood Brown, III, New Orleans, Robert J. Boudreau, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Peé, Metairie, Roland J. Aehee, Shreveport, Gerard F. Thomas, Natchitoches, Counsel for relator.
    Clyde P. Martin, in pro. per.
   DISCIPLINARY PROCEEDINGS

MARCUS, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted this disciplinary proceeding against Clyde P. Martin, Jr., a member of said association. The committee conducted an investigation of respondent’s alleged misconduct in accordance with article 15, section 3 of the articles of incorporation of the association. The committee by certified mail dated June 7, 1982 sent respondent notice of six separate specifications of misconduct which would be heard at a formal investigatory hearing to be held on July 8, 1982.

Specification No. 1 alleged:

You were retained to pass an act of sale and prepare mortgages on behalf of Gerald J. Dicharry, Jr. Said mortgage and act was to be recorded to effect the transfer of property and to secure loan made from the New Orleans Engineering District Federal Credit Union to Mr. Dicharry. Despite payment of your fee and repeated demands, you have failed, refused and neglected to file the act of sale on the mortgage, causing injury and damage to your client. All in violation of Disciplinary Rules 1-102 [] and 9-102 [] of the Code of Professional Responsibility for this Association.

Specification No. 2 alleged:

You were retained to pass an act of sale and prepare mortgages on behalf of Frank J. Andel, Jr. Said mortgage and act was to be recorded to effect the transfer of property and to secure loan made from the New Orleans Engineering District Federal Credit Union to Mr. An-del. Despite payment of your fee and repeated demands, you have failed, refused and neglected to file the act of sale on the mortgage, causing injury and damage to your client. All in violation of Disciplinary Rules 1-102 and 9-102 of the Code of Professional Responsibility for this Association.

Specification No. 3 alleged:

You were retained to pass an act of sale and prepare mortgages on behalf of Paul Duplantis. Said mortgage and act was to be recorded to effect the transfer of property and to secure loan made from the New Orleans Engineering District Federal Credit Union to Mr. Duplantis. Despite payment of your fee and repeated demands, you have failed, refused and neglected to file the act of sale on the mortgage, causing injury and damage to your client. All in violation of Disciplinary Rules 1-102 and 9-102 of the Code of Professional Responsibility for this Association.

Specification No. 4 alleged:

You were retained to pass an act of sale and prepare mortgages on behalf of Melvin B. Collins. Said mortgage and act was to be recorded to effect the transfer of property and to secure loan made from the New Orleans Engineering District Federal Credit Union to Mr. Collins. Despite payment of your fee and repeated demands, you have failed, refused and neglected to file the act of sale on the mortgage, causing injury and damage to your client. All in violation of Disciplinary Rules 1-102 and 9-102 of the Code of Professional Responsibility for this Association.

Specification No. 5 alleged:

You were retained to pass an act of sale and prepare mortgages on behalf of Oscar Rowe. Said mortgage and act was to be recorded to effect the transfer of property and to secure loan made from the New Orleans Engineering District Federal Credit Union to Mr. Rowe. Despite payment of your fee and repeated demands, you have failed, refused and neglected to file the act of sale on the mortgage, causing injury and damage to your client. All in violation of Disciplinary Rules 1-102 and 9-102 of the Code of Professional Responsibility for this Association.

Specification No. 6 alleged:

You were retained to pass an act of sale and prepare mortgages on behalf of Normand R. Sheeren. Said mortgage and act was to be recorded to effect the transfer of property and to secure loan made from the New Orleans Engineering District Federal Credit Union to Mr. Sheeren. Despite payment of your fee and repeated demands, you have failed, refused and neglected to file the act of sale on the mortgage, causing injury and damage to your client. All in violation of Disciplinary Rules 1-102 and 9-102 of the Code of Professional Responsibility for this Association.

At respondent’s request, the hearing date was continued and respondent was notified by certified letter dated October 15,1982 of the new hearing date of November 17,1982. Respondent did not appear at the formal investigatory hearing held on the scheduled date in accordance with article 15, section 3(b) of the articles of incorporation; nor was he represented by counsel.

Based on the evidence adduced at the formal investigatory hearing, the committee, by a majority vote, was of the opinion that respondent had been guilty of a violation of the laws of this state relating to the professional conduct of lawyers and to the practice of law of sufficient gravity as to evidence a lack of moral fitness for the practice of law; that, specifically, respondent was guilty of the misconduct set forth in Specifications Nos. 1, 2, 3, 4, 5 and 6. On March 15, 1983, the committee instituted in this court a suit for disciplinary action against respondent under the provisions of article 15, section 4(c) of the articles of incorporation. The petition was duly served upon respondent, but he failed to answer the petition. Thereafter, on motion by the committee, we appointed Rufus C. Harris, Jr. commissioner to take evidence and to report to this court his findings of fact and conclusions of law. Louisiana State Bar Association Articles of Incorporation art. 15, §§ 6(b) & 6(d).

A hearing before the commissioner was conducted on October 11, 1983. Although respondent had been notified by certified letter dated September 23, 1983 of the hearing date, he neither appeared nor was represented by counsel. The committee introduced into evidence, without objection, the entire record of the earlier investigatory hearing. Upon termination of the hearing, the commissioner filed with this court his written report wherein he stated his findings of fact and conclusions of law and recommended a two-month suspension from the practice of law as the appropriate disciplinary action. The committee filed its concurrence in the commissioner’s findings of fact and conclusions of law, but filed an opposition to the commissioner’s recommendation of appropriate disciplinary action, arguing that this court should consider a longer period of suspension than two months. Respondent did not except to the commissioner’s report. After oral argument before this court, at which respondent neither appeared nor was represented by counsel, the matter was submitted for our determination on the record before the commissioner.

The bar association has the burden of establishing by clear and convincing evidence that respondent was guilty of the alleged specifications of misconduct. Louisiana State Bar Association v. Dowd, 445 So.2d 723 (La.1984).

Respondent was retained in 1979 by the New Orleans Engineering District Federal Credit Union to pass by notarial act five acts of mortgage and one act of sale and mortgage and to record the mortgages in the mortgage office and register the sale in the conveyance office. In each of the six specifications of misconduct, the mortgagors paid respondent his fees for the preparation, passage and recordation of the acts and advanced him money to cover the rec-ordation costs. Although respondent did prepare and pass all of the acts in question, he did not record or register any of them despite repeated requests to do so by the mortgagee credit union and several of the mortgagors. To date, respondent has not taken any action to conclude the work contracted for or to return the monies advanced him for said work.

Based upon the evidence in the record before the commissioner, we find that respondent was guilty on all six counts of neglecting a legal matter entrusted to him in violation of DR 6-101(A)(3) of the Code of Professional Responsibility.

We must now decide what disciplinary action is appropriate in this matter. Although the commissioner recommended a two-month suspension from the practice of law, the committee in its brief to this court argued that a one-year suspension would be a more appropriate sanction in this case. The purpose of lawyer disciplinary proceedings is not primarily to punish the lawyer but rather to maintain appropriate standards of professional conduct to safeguard the public, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the Code of Professional Responsibility. The discipline to be imposed will depend on the seriousness of the offense involved and the facts and circumstances of each case. The court will take into account both aggravating and mitigating circumstances. Louisiana State Bar Association v. Dowd, supra; Louisiana State Bar Association v. Bubert, 421 So.2d 831 (La. 1982).

In the case at bar, respondent neglected six legal matters entrusted to him for which he had been advanced fees and recordation costs and has presented no evidence of mitigating circumstances. In fact, he has failed to cooperate with either the committee or the commissioner in the investigation of this matter; nor has he filed a brief or made any appearance in this court. This court has held that a lengthy suspension is appropriate when a defendant in a lawyer disciplinary proceeding fails to cooperate because that “lack of cooperation indicates he has no intention of reforming his conduct.” Louisiana State Bar Association v. Thompson, 427 So.2d 1144 (La.1983). Furthermore, respondent received six public reprimands in 1982 from the Louisiana State Bar Association for six previous counts of failing to record mortgages and register sales after having accepted payment for the performance of such services. However, in the instant case, the record does show that, as of the date of the investigatory hearing, no party was injured as a result of respondent’s failure to record the acts in question.

In view of respondent’s lack of cooperation in this matter and his history of professional misconduct, we find that a six-month suspension from the practice of law is the appropriate penalty in this case.

DECREE

For the reasons assigned, it is ordered that Clyde P. Martin, Jr. be suspended from the practice of law in the State of Louisiana for the period of six months. Respondent is to bear all costs of these proceedings.

      . DR 1-102. Misconduct.
      (A) A lawyer shall not:
      (1) Violate a Disciplinary Rule.
      (2) Circumvent a Disciplinary Rule through actions of another.
      (3) Engage in illegal conduct involving moral turpitude.
      (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
      (5) Engage in conduct that is prejudicial to the administration of justice.
      (6) Engage in any other conduct that adversely reflects on his fitness to practice law.

      . DR 9-102. Preserving Identity of Funds and Property of a Client
      (A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
      (1)Funds reasonably sufficient to pay bank charges may be deposited therein.
      (2)Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
      (B) A lawyer shall:
      (1) Promptly notify a client of the receipt of his funds, securities, or other properties.
      (2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
      (3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
      (4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

      . DR 6-101. Failing to Act Competently
      (A) A lawyer shall not:

      (3) Neglect a legal matter entrusted to him. Although the specifications of misconduct as set forth in the committee’s petition for disciplinary action only charged respondent with violating DR 1-102 and DR 9-102, not DR 6-101(A)(3), such omission is of no moment. Formal and technical pleadings are not essential in disciplinary proceedings against an attorney. All that is required is that the charges against the defendant shall be so specific as to fairly inform him of the misconduct of which he is accused. In re Fallon, 204 La. 955, 16 So.2d 532 (1943); In re Reed, 203 La. 1008, 14 So.2d 818 (1943). The specifications of misconduct alleged that respondent "failed, refused and neglected to file" the documents in question, clearly notifying respondent that he was being accused of misconduct constituting a violation of DR 6-101(A)(3), that is, of neglecting a legal matter entrusted to him. Moreover, the commissioner established in his findings of fact that there was sufficient evidence in the record to support such an allegation. He found that "[t]he uncontro-verted testimony at the hearing show[s] that Clyde P. Martin was engaged ... to prepare and record first and second mortgages and, in one instance, to prepare an act of sale and, despite having been requested on numerous occasions to do so, by telephone and by letters, failed to file such instruments." The commissioner also determined in his conclusions of law that respondent was guilty of neglecting a legal matter entrusted to him. The commissioner concluded that "[respondent] has failed in a number of instances to appropriately record security devices to protect the clients and other parties. He has shown a wanton indifference to his clients and his law practice in general by failing to answer letters, appear at hearings and to perform his duties as a lawyer."


author: PER CURIAM. LEMMON, J.,

text:
    STATE of Louisiana v. Ronnie WILLIAMS.
    No. 84-KK-0590.
    Supreme Court of Louisiana.
    May 25, 1984.
   PER CURIAM.

Defendant, charged by bill of informa-. tion with armed robbery, in violation of La.R.S. 14:64, moved in the district court to suppress the identifications made at a corporeal line-up conducted on November 3, 1983. The trial judge denied the motion after a hearing on February 22, 1984 and the Fourth Circuit has found “no error in the ruling. . . .” State v. Williams, 452 So.2d 182 (La.App. 4th Cir.1984). On defendant’s application, we have stayed the proceedings before trial to review the judgments below.

The line-up in this case was conducted after a preliminary examination held on September 20,1983 marked the initiation of adversarial judicial proceedings against defendant. Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); cf., Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). However, at the hearing on the motion to suppress, the state failed to establish either that an attorney was present at the line-up or that defendant made a knowing and intelligent waiver of his right to the assistance of counsel. Daigre v. Maggio, 705 F.2d 786 (5th Cir.1983); State v. Frisco, 411 So.2d 37 (La.1982); cf., United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149 (1967).

Accordingly, the state may not present at trial any evidence of the November 3 line-up. See, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). The ruling of the trial court is therefore reversed, the motion to suppress is granted, and this case is remanded for all proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

LEMMON, J.,

concurs. The state at trial may use an in-court identification by the victim upon proving by clear and convincing evidence that the identification had an independent source. United States v. Wade, above.


text:
    STATE of Louisiana v. Kevin WISE.
    No. 84-KH-1041.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Kevin Wise, applying for Remedial Writs to the Criminal District Court, Parish of Orleans.

Denied.


author: PONDER, Judge.

text:
    STATE of Louisiana v. Douglas H. CREEL.
    No. KA 84 0005.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    William J. Burris, Asst. Dist. Atty., Franklinton, for plaintiff.
    Thomas Ford, Covington, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant, Douglas H. Creel, charged with and convicted of simple escape in violation of La.R.S. 14:110(A), was sentenced to serve five years at hard labor, the sentence to run consecutively with the sentence defendant was previously serving. Defendant appealed the conviction and filed two briefs, one prepared by defendant’s court-appointed attorney and the other prepared by the accused in proper person.

The attorney’s brief alleged only error patent on the face of the record. We find no such error.

In the second brief, defendant argues that he was denied compulsory process during his trial because he was not allowed to introduce evidence that an officer on duty at the jail, where defendant was in custody, accepted $900.00 and allowed him to leave the jail, instructing him not to return. In effect, defendant is urging that he did not escape, as defined in La.R.S. 14:110(A), because he was given permission to leave.

La.R.S. 14:110(A)(1) defines simple escape as follows:

“The intentional departure, ... of a person imprisoned, committed, or detained, from a place where such person is legally confined or from a designated area of a place where such person is legally confined....”

Even if defendant paid the officer to be released from custody, defendant’s departure from the jail was a simple escape as defined in the statute. Defendant departed from the jail, where he was legally confined, with complete awareness of his actions and with full knowledge that he had been sentenced to the Department of Corrections for five years at hard labor. The testimony taken at trial established that no one with proper authority had given defendant permission to leave the premises. Furthermore, a bribe to someone for assistance in leaving a place where a person is legally detained is not a defense to the crime of simple escape.

For these reasons, the conviction and sentence are affirmed.

AFFIRMED.


author: SAVOIE, Judge.

text:
    Lloyd GUILLOT and Karen Sellers Guillot v. FISHERMAN’S PARADISE, INC., Flying Bridge Marina, Inc., Gilbert L. Dozier, and Gerald Strickland.
    No. 15037.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 1983.
    On Rehearing Jan. 12, 1984.
    Daniel J. McGee, Mamou, Duro J. Duple-chin, Jr., Patterson, for plaintiffs-appellants Lloyd Guillot and Karen Sellers Guillot.
    Charles M. Raymond, Baton Rouge, for Fisherman’s Paradise, Inc.
    Felix Weill, Baton Rouge, for Gilbert L. Dozier (Individually).
    Thomas H. Watts, Baton Rouge, for Flying Bridge Marina, Inc.
    Before PONDER, SAVOIE and CRAIN, JJ.
   SAVOIE, Judge.

This case is on remand from our Supreme Court, 437 So.2d 840, to fix damages in favor of the plaintiffs, Mr. and Mrs. Guillot, for the wrongful death of their two-year-old son.

The record contains little evidence indicating the nature of the relationship between plaintiffs and their son. Accordingly, we assume their relationship to have been the normal relationship between parents and their two-year-old child. Based on this assumption, we find that an award of $25,000 per parent is appropriate. Meaux v. Wiley, 325 So.2d 655 (La.App. 3rd Cir. 1975); Clifford v. Recreation and Park Commission of East Baton Rouge, 289 So.2d 373 (La.App. 1st Cir.1973), writ denied, 293 So.2d 168 (La.1974); Tatum v. Parish of East Baton Rouge, 244 So.2d 913 (La.App. 1st Cir.1971), writ refused, 258 La. 364, 246 So.2d 683 (La.1971).

Accordingly, we award $25,000 each, in favor of Lloyd Guillot and Karen Sellers Guillot, and against defendant, Fisherman’s Paradise, Inc., together with legal interest from the date of judicial demand. Defendant is to pay all costs. Judgment is so rendered.

JUDGMENT RENDERED.

ON REHEARING

This case came up for rehearing on the issue of quantum. Previously, this court awarded $25,000.00 to each parent for the wrongful death of their two-year old son.

Re-examination of the specific facts and circumstances surrounding the death of this minor lead us to believe that the original award was too low, particularly in light of recent jurisprudence. Therefore, in order to have our award congruous therewith, we modify our previous award and hereby grant an award of $50,000.00 each in favor of Lloyd Guillot and Karen Sellers Guillot.

Accordingly, judgment is hereby rendered in favor of Lloyd Guillot in the sum of Fifty thousand and no/100 ($50,000.00) Dollars and Karen Sellers Guillot in the sum of Fifty thousand and no/100 ($50,-000.00) Dollars, and against defendant, Fisherman’s Paradise, Inc., together with legal interest from date of judicial demand. Defendants are to pay all costs.

JUDGMENT SO RENDERED.

      . Service was never obtained on Gerald Strickland and, therefore, he is not a proper party defendant in this suit. Similarly, Gilbert Dozier is no longer a proper party defendant in this suit. With respect to Gilbert Dozier, the trial court granted a judgment of dismissal in his favor pursuant to C.C.P. art. 1810 and this judgment has not been appealed. On October 7, 1975, Fisherman's Paradise, Inc. purchased all the outstanding stock and assets of Flying Bridge Marina, Inc. and assumed responsibility for all debts. Accordingly, Fisherman's Paradise, Inc. is the sole remaining defendant herein.

      . Service was never obtained on Gerald Strickland and, therefore, he is not a proper party defendant in this suit. Similarly, Gilbert Dozier is no longer a proper party defendant in this suit. With respect to Gilbert Dozier, the trial court granted a judgment of dismissal in his favor pursuant to C.C.P. art. 1810 and this judgment has not been appealed. On October 7, 1975, Fisherman's Paradise, Inc. purchased all the outstanding stock and assets of Flying Bridge Marina, Inc. and assumed responsibility for all debts. Accordingly, Fisherman’s Paradise, Inc. is the sole remaining defendant herein.