text:
    The STATE of Florida, Appellant, v. Roberto MENDOZA, Appellee.
    No. 83-1738.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellee.

      Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Mendoza, a person over the age of eighteen, was charged, tried and convicted of the offense of sexual battery of a person eleven years of age or younger, a violation of Section 794.011(2), Florida Statutes (1981). The trial court sentenced Mendoza to life imprisonment, requiring him to serve a minimum mandatory prison term of twenty-five years before becoming eligible for parole.

After his conviction was affirmed on appeal, see Mendoza v. State, 427 So.2d 212 (Fla. 3d DCA 1983), Mendoza moved in the trial court to correct his sentence, asserting that since the death penalty can no longer be imposed for sexual battery, the offense is no longer a capital crime punishable by a denial of eligibility of parole for twenty-five years. The trial court granted Mendoza’s motion and changed the sentence to a term of imprisonment of thirty years. The State appeals.

Having recently held that notwithstanding that sexual battery is not a capital crime in the sense that it may result in the imposition of the death penalty, it must nonetheless be punished by life imprisonment with the requirement that the defendant serve no less than twenty-five years before becoming eligible for parole, see State v. Jimenez, 443 So.2d 204 (Fla. 3d DCA 1983), we reverse the thirty-year sentence imposed and remand the cause for the imposition of the sentence originally and correctly imposed as being mandated by Section 775.082(1), Florida Statutes (1981). As we did in State v. Jimenez, we certify to the Supreme court the following question as being one which will have a great effect on the administration of justice throughout the state:

Must a defendant convicted of a violation of Section 794.011(2), Florida Statutes (1981), be sentenced to life imprisonment with the requirement that he serve no less than twenty-five years before becoming eligible for parole, as provided in Section 775.082(1), Florida Statutes?

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITY OF MIAMI, Appellant, v. UNITED STATES FIDELITY AND GUARANTY, Appellee.
    No. 83-1987.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Jose Garcia-Pedrosa, City Atty. and Gise-la Cardonne, Asst. City Atty., for appellant.
    Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane and Shelley H. Leinicke, Fort Lauderdale, for appel-lee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We treat the motion for summary reversal filed by the appellee, United States Fidelity and Guaranty, as a confession of error and, upon the authority of VanBibber v. Hartford Accident and Indemnity Company, 439 So.2d 880 (Fla.1983); Kaminsky v. Travelers Indemnity Company, 443 So.2d 206 (Fla. 3d DCA 1983); Geller v. Kent Insurance Company, 442 So.2d 1034 (Fla. 3d DCA 1983) and Randel v. General Insurance Company, 439 So.2d 986, 987 (Fla. 3d DCA 1983), reverse the order under review and remand the cause to the trial court with directions to reinstate the appellee as a party defendant on the appellant’s crossclaim.

Reversed and remanded with directions.


author: PER CURIAM:

text:
    Glenn Michael TUPICA, Appellant, v. STATE of Florida, Appellee.
    No. 82-2536.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 1984.
    Philip J. Padovano, Tallahassee, and Richard B. Mateer, P.A., Boca Raton, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM:

Appellant appeals his conviction of attempted trafficking in cocaine. We find no merit in any of the arguments presented to us and affirm. See Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976), and Nichols v. State, 248 So.2d 199 (Fla. 4th DCA 1971).

AFFIRMED.

ANSTEAD, C.J., and BERANEK and WALDEN, JJ., concur.


text:
    Shanker S. AGARWAL and Pushpa Agarwal, Appellants, v. BANK OF FLORIDA IN SOUTH FLORIDA, Manuel Olazabal and Jose I. Caballero, Appellees.
    No. 83-116.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 1984.
    Robert A. Plafsky of Ruden, Barnett, McClosky, Schuster & Russell, P.A., Fort Lauderdale, for appellants.
    Karen B. Bernstein of Blank, Rome, Co-misky & McCauley, Miami, for appellee Bank of Florida in South Florida.
   PER CURIAM.

REVERSED. Upon review of the record we conclude that an issue of material fact does exist as to the appellee bank’s alleged responsibility for the appellants’ inability to timely meet their obligations under the mortgage instrument sued upon. Accordingly, the entry of summary judgment was error.

ANSTEAD, C.J., and BERANEK and WALDEN, JJ., concur.


author: HERSEY, Judge.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Gerald G. ROBERTS, Appellee.
    No. 83-423.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 1984.
    Michael B. Davis of Walton Lantaff Schroeder & Carson, West Palm Beach, for appellant.
    Carl M. Mathison, Jr., West Palm Beach, and Larry Klein of Law Offices of Larry Klein, West Palm Beach, for appellee.
   HERSEY, Judge.

This appeal involves construction of the phrase “different named insureds” as used in Section 627.4132, Florida Statutes (1979), the anti-stacking statute. That section provides:

If an insured or named insured is protected by any type of motor vehicle insurance policy for liability, uninsured motorist, personal injury protection, or any other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. However, if none of the insured’s or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not be added to or stacked upon that coverage. This section shall not apply to reduce the coverage available by reason of insurance policies insuring different named insureds.

In September of 1980 Gerald Roberts, the appellee, was injured by the negligence of an uninsured motorist. He collected uninsured motorist coverage under a State Farm policy which listed the vehicle involved in the accident and which had as named insureds “Gerald or Mildred Roberts.” Appellee also has an Allstate policy for uninsured motorist coverage in which the named insureds are “George or Gerald Roberts” and which lists a 1976 Ford (not involved in this accident) as the only insured vehicle.

Allstate sought a declaratory decree as to its rights and obligations under appel-lee’s Allstate policy. The trial court entered judgment in favor of appellee on the coverage issue “[sjince George Roberts is a named insured under this Allstate policy and is not a named insured under either of the State Farm policies.” Thus, the court concluded “there are different named insureds.”

The trial court thus applied one of two possible constructions of the phrase. It assumes that if a policy lists any named insured not included as a named insured in another policy then “there are different named insureds.” The preferable construction, and the one supported by the weight of authority, is that if one named insured is common to two or more policies then there are not different named insureds within the meaning of this exception to the anti-stacking statute. South Carolina Ins. Co. v. Kokay, 398 So.2d 1355 (Fla.1981).

In holding to the contrary the trial court found that Lowry v. State Farm Mut. Ins. Co., 421 So.2d 668 (Fla. 3d DCA 1982) is distinguishable. We disagree. In Lowry two insurance policies were issued by State Farm Mutual. One was issued to Joseph Lowry as named insured and the other was issued to Joseph and Mrs. Lowry as named insureds. The court concluded that “to permit stacking in this instance would be in violation of Section 627.4132, Florida Statutes (1977), which prevents stacking separate policies involving the same named insured.” 421 So.2d at 669. The 1977 version of the statute is the same as the 1979 version. See State Farm Mut. Automobile Ins. Co. v. Taylor, 434 So.2d 37 (Fla. 5th DCA 1983), which involves similar facts, the 1979 statute, and follows Lowry, and State Farm Mut. Automobile Ins. Co. v. Northrop, 437 So.2d 706 (Fla. 1st DCA 1983) wherein the first district held on the narrow issue of statutory construction that it agrees with Lowry that Section 627.4132, Florida Statutes (1979) prohibits stacking of uninsured motorist coverage in these circumstances.

Following Lowry, Taylor and Northrop and consistent with Kokay, we hold that stacking of uninsured motorists’ coverage is prohibited where, as here, a named insured under one policy is also a named insured under a second policy the coverage under which is sought to be stacked onto the coverage of the first policy. Accordingly we reverse and remand for the entry of judgment consistent with this opinion.

REVERSED AND REMANDED.

DOWNEY and BERANEK, JJ., concur.


text:
    Nicholas J. MARCOLAS, Appellant, v. Evalyn T. MEARS, Appellee.
    No. 83-556.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 1984.
    William A. Fleck of Cohen, Scherer & Cohn, P.A., Lake Worth, for appellant.
    C. Harris Dittmar and Timothy J. Corri-gan of Bedell, Dittmar, DeVault, Pillans & Gentry, Jacksonville, for appellee.
   PER CURIAM.

This cause is affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

ANSTEAD, C.J., and LETTS and HERSEY, JJ., concur.


text:
    Raymond W. SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1332.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 1984.

      Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of McCray v. State, 416 So.2d 804 (Fla.1982).

DOWNEY, HURLEY and DELL, JJ., concur.


text:
    HUB FINANCIAL CORPORATION and Mark A. Varea, Appellants, v. The RACQUET CLUB OF FORT LAUDERDALE ASSOCIATION, INC., a Florida corporation, not-for-profit, et al., Appellees.
    No. 83-1812.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 1984.
    Robert H. Anderson, II, of Robert H. Anderson, II, P.A., Fort Lauderdale, for appellants.
    Daniel S. Rosenbaum of Becker, Polia-koff & Streitfeld, P.A., Fort Lauderdale, for appellee, Racquet Club.
   PER CURIAM.

Affirmed. See Mercer v. Raine, 443 So.2d 944 (Fla.1983); A.H. Robins Co. v. Devereaux, 415 So.2d 30 (Fla. 3d DCA 1982); and Cem-A-Care of Florida, Inc. v-. Automated Planning Systems, 442 So.2d 1048 (Fla. 4th DCA 1983).

DOWNEY, GLICKSTEIN and DELL, JJ., concur.


text:
    Gonzalo DEQUESADA, Petitioner, v. STATE of Florida, Respondent.
    No. 83-1875.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1984.

      R.E. Fernandez, Tampa, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and M. Ann Garrison, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

Gonzalo Dequesada petitions this court for a writ of certiorari regarding an order of the Pinellas County Circuit Court dismissing his appeal of an order of the Pinel-las County Court denying his petition for a writ of error coram nobis. We deny the petition.

After successfully completing the terms and conditions of probation imposed upon him for a misdemeanor battery conviction in the county court, Dequesada filed a petition for a writ of error coram nobis in the county court seeking relief from the conviction. He set forth several allegations in the petition concerning ineffective assistance of counsel at the pretrial and trial stages. In support of some of the allegations, he attached portions of the trial transcript and a few affidavits. Following a hearing on the petition, the county court rendered a bifurcated order denying it. Citing Weir v. State, 319 So.2d 80 (Fla. 2d DCA 1975), the court decided in the first part of its order that when a defendant who is no longer in custody seeks post-conviction relief, his remedy may be by way of a writ of error coram nobis. However, in the second part of its order, it rejected the sufficiency of each of Dequesada’s allegations, holding that he had not carried his burden of proving ineffective assistance of counsel under the standards set forth in Knight v. State, 394 So.2d 997 (Fla.1981), and Ford v. State, 407 So.2d 907 (Fla.1981), so as to justify an evidentiary hearing.

A three-judge panel of the circuit court filed a per curiam order dismissing Deque-sada’s appeal of the county court’s order on the ground that, because Dequesada has fulfilled the terms and conditions of probation, the question of ineffective assistance of counsel has been rendered “moot.” It therefore did not address the question of whether the county court correctly rejected Dequesada’s allegations of ineffective assistance of counsel, as he had sought.

Dequesada subsequently submitted a petition for a writ of certiorari in this court.

We agree with Dequesada that the circuit court erroneously dismissed his appeal of the county court’s order. The county court correctly held that a petition for a writ of error coram nobis is the vehicle whereby a defendant who is no longer in- custody may seek post-conviction relief. See Weir. The fact that Dequesa-da has served the terms and conditions of probation does not render the issue of ineffective assistance of counsel “moot.” If ineffective assistance of counsel were proved, the conviction might ultimately be expunged from his criminal record, thereby eliminating the stigma of the conviction.

Even though the circuit court wrongfully dismissed Dequesada’s appeal, the granting of a writ of certiorari would be a pointless act. As the county court held, a review of Dequesada’s allegations of ineffective assistance of counsel, as well as a perusal of the attached affidavits and portions of the trial transcript which he submitted in support of some of the allegations, shows that the allegations are substantively insufficient.

Accordingly, we deny Dequesada’s petition for a writ of certiorari.

CERTIORARI DENIED.

HOBSON, A.C.J., and BOARDMAN and RYDER, JJ., concur.


author: DAUKSCH, Judge.

text:
    Robert Earl DILYERD, Appellant, v. STATE of Florida, Appellee.
    No. 82-1127.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 1984.

      James B. Gibson, Public Defender, David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a conviction for possession of a controlled substance. Because the trial court erred in denying the motion to suppress the controlled substance we reverse the conviction and order appellant discharged.

The facts as stated by appellant and ap-pellee in their briefs are that a deputy sheriff saw a car, occupied by appellant in the driver’s seat and another person next to him, parked on private property owned by a person who had complained about teenagers partying in the area. The deputy called for assistance and the two deputies approached the car on foot, one at each side, and ordered the occupants to get out. The occupants complied and, while they were standing away from the car, one deputy began to search the car because when he approached the car he saw the passenger “appeared to be doing something with his hand on the floorboard of the car.” Because of these movements and the possibility that appellant or the passenger might have a weapon stashed in the car, the search was conducted and cocaine and drug paraphernalia were found and seized. Although it is conceded that there is a perception that the search and seizure law and fourth amendment rights are somewhat complex, we suggest there are certain guidelines which are clear and certainly must be consistently followed by police and courts. Starting with the state and federal constitutions, which are paramount over the drug laws, it is firmly established that all persons are entitled to be free from unreasonable searches and seizures. U.S. Const. amend. IV; Fla. Const. art. I, § 12. The definitions and interpretations of what searches are “unreasonable” are numerous, but certain firmly established guidelines are extant. Police may search an automobile when there is probable cause to believe that it contains contraband or fruits or instrumen-talities of crime. Incidental to a lawful custodial arrest of an occupant the police may search the passenger compartment of an automobile. When police are authorized to take a car into protective custody an “inventory search” is permitted. Certain other warrantless searches, such as border searches, are permitted but otherwise the search of a vehicle must be based on a warrant.

Florida’s stop and frisk statute is not applicable to cars, only persons, and is certainly not applicable here because no probable cause existed to believe either person had a weapon. Furtive stuffing of unknown objects under the seat of a car may make one curious or even suspicious about what was being handled but it does not give the police a right to search based on probable cause.

This search appears to have been a hunting expedition to see what could be found and the assertion that it was to protect the officers, who had not and were not going to arrest, rings hollow. The safety of the officers was established when the persons were required to move outside the car and away from the supposed danger zone. Because there is no basis upon which this search and seizure can be sustained and because suppression of illegally seized evidence is the only current remedy for unlawful seizures (and is the specific remedy applied in the stop and frisk statute) and because no conviction is possible without the drug evidence, we reverse the conviction and order appellant discharged.

We recognize a conflict with State v. Brown, 395 So.2d 1202 (Fla. 3d DCA 1981), but suggest that the authorities cited therein do not squarely support that court’s holding. We are of the opinion the facts in State v. Brown, 395 So.2d 1202 (Fla. 3d DCA 1981) are distinguishable from Brown v. State, 358 So.2d 596 (Fla. 2d DCA 1978) even though one cites the other as authority. In the earlier Brown case the trial judge could have reasonably found that probable cause existed to believe the defendants were armed and were about to commit a robbery. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Here, and in the later Brown case, we see no facts which would indicate the existence of probable cause. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), cited by the court in the later Brown case, involved a frisk of a person who exhibited a pronounced, weapon-like bulge in his jacket. There was no search of a car after suspicious furtive movements in the car. That case is not on point. Stevens v. State, 354 So.2d 110 (Fla. 3d DCA 1978) is aligned with State v. Brown, 395 So.2d 1202 (Fla. 3d DCA 1981) and vice versa. The court declared in Stevens: “While the officer did not articulate that he was fearful that the defendant had a weapon, the facts of the case are such that he was reasonably justified in conducting the search to protect his person.” Since the officer was not concerned about the defendant’s having a weapon, and the other facts set out in the opinion do not lead to any probable cause regarding a crime or contraband or a weapon, we must assume there were other facts. If not, then we are also in conflict with Stevens.

REVERSED.

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

      . See § 933.19, Fla.Stat. (1981).

      . See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

      . Section 901.151, Florida Statutes (1981) provides:
      (1) This section may be known and cited as the "Florida Stop and Frisk Law.”
      (2) Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.
      (3) No person shall be temporarily detained under the provisions of subsection (2) longer than is reasonably necessary to effect the purposes of that subsection. Such temporary detention shall not extend beyond the place where it was first effected or the immediate vicinity thereof.
      (4) If at any time after the onset of the temporary detention authorized by subsection (2), probable cause for arrest of person shall appear, the person shall be arrested. If, after an inquiry into the circumstances which prompted the temporary detention, no probable cause for the arrest of the person shall appear, he shall be released.
      (5) Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.
      (6) No evidence seized by a law enforcement officer in any search under this section shall be admissible against any person in any court of this state or political subdivision thereof unless the search which disclosed its existence was authorized by and conducted in compliance with the provisions of subsections (2)-(5).


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

text:
    STATE of Florida, Appellant, v. Brian L. ADAMSON, Appellee.
    No. 82-1652.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    James C. Weart, P.A., Sanford, for appel-lee.
   FRANK D. UPCHURCH, Jr., Judge.

The state appeals from an order ruling that section 316.1932(l)(a), Florida Statutes (1982) is unconstitutional. This section provides that “[t]he refusal to submit to a chemical breath ... test upon the request of a law enforcement officer as provided in this section shall be admissible into evidence in any criminal proceeding.”

Appellee Adamson was arrested in August, 1982, and charged with driving under the influence of alcoholic beverages. He refused to submit to a breathalyzer test after being requested to do so by the arresting officer.

We find South Dakota v. Neville, — U.S. -, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (which was issued while this case was pending on appeal) to be controlling and therefore reverse the trial court’s order. See also Pardo v. State, 429 So.2d 1313 (Fla. 5th DCA 1983).

REVERSED.

DAUKSCH and SHARP, JJ., concur.


text:
    Peter LEE, Appellant, v. STATE of Florida, Appellee.
    No. 82-1656.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 1984.

      Edward I. Matz, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a conviction of battery. Appellant was charged with aggravated battery by use of a “deadly weapon, to wit: Tae-Kwon-Do.” Tae-Kwon-Do is a method of combat. Appellant urges the trial court erred in refusing to direct a verdict as to the aggravated battery charge because there was no proof regarding the use of a deadly weapon to commit the battery. It is an interesting question but we cannot answer it because appellant was convicted not of aggravated battery, but of battery. The question is moot. Appellant requests a new trial on battery but he has been fairly tried and convicted of that offense. The evidence is sufficient and he does not challenge the sufficiency of the evidence as to the battery conviction.

As a second point on appeal appellant argues the court erred in allowing evidence regarding the injuries suffered at the hands of appellant. The aggravated battery statute provides for alternative methods of violating it. The state chose to charge this appellant with violating it by use of a deadly weapon and not by causing bodily harm. In fact, a reading of the charging document reveals the appellant had been charged in both ways — bodily harm and deadly weapon — but the bodily harm part was crossed out. The case went to the jury as a deadly weapon case, so it is immaterial to the charge that the victim was injured. L.D. v. State, 355 So.2d 816 (Fla. 3d DCA 1978). It may very well be error to admit evidence which is not material to a charge, especially if the evidence is emotional, inflammatory or meant to mislead. However, because the evidence is quite clear that the battery was committed and we cannot determine that the jury was, or could have been, inflamed enough to reach an unjust or incorrect verdict or that the accused was unduly prejudiced, any error was harmless. Compare McGriff v. State, 417 So.2d 300 (Fla. 3d DCA 1982); See Eaton v. State, 307 So.2d 915 (Fla. 3d DCA 1975).

AFFIRMED.

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

      . Section 784.045, Florida Statutes (1981) provides:
      (1) A person commits aggravated battery who, in committing battery:
      (a) Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or
      (b) Uses a deadly weapon.


text:
    James Oliver EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1741.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 1984.

      James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen.-, Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

We find that sufficient evidence was presented to justify revocation of appellant’s probation on the grounds that he failed to report to his probation officer, inform him of his correct address and whereabouts and attend a work program as he had agreed to do. However, we strike from the revocation order the finding that appellant violated condition two of his probation which required him to pay the cost of supervision since no evidence was presented showing that he had the ability to make such payments. See Cephas v. State, 412 So.2d 935 (Fla. 2d DCA 1982); Deason v. State, 404 So.2d 1140 (Fla. 4th DCA 1981).

AFFIRMED.

ORFINGER, C.J., and SHARP, J., concur.


text:
    Josephine CLUTTS, et al., Appellants, v. Lester H. TODD, et al., Appellees.
    No. 83-764.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 1984.
    Irving F. Morse, Clermont, for appellants.
    Sandra P. Stockwell, Tavares, for appel-lees.
   PER CURIAM.

AFFIRMED on the authority of ITT Bayonier, Inc. v. Wadsworth, 346 So.2d 1004 (Fla.1977).

ORFINGER, C.J., COBB, J., and CYC-MANICK, M.F., Associate Judge, concur.


text:
    Horacio ALVAREZ, Appellant, v. SHARON HOTEL and Corporate Group Services, Appellees.
    No. AS-441.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1984.
    Jay M. Levy, of Hershoff & Levy, Miami, for appellant.
    George O’Brien, Miami Shores, and Steven Kronenberg, of Adams, Kelley & Kro-nenberg, Miami, for appellees.
   PER CURIAM.

AFFIRMED. Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983).

SHIVERS, JOANOS and THOMPSON, JJ., concur.


author: SHIVERS, Judge.

text:
    FLORIDA POWER AND LIGHT CO., Self-Insured, Appellant, v. John T. MULKERRIN, Appellee.
    No. AT-6.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1984.
    Albert E. Harum, Jr., P.A., Miami, for appellant.
    Richard L. Wagenheim, of Golding & Wagenheim, Fort Lauderdale, for appellee.
   SHIVERS, Judge.

In this workers’ compensation case the self-insured employer appeals an order of the deputy commissioner which awards the claimant interest on past due compensation and penalties. Appellant argues that the deputy commissioner erred by making no findings of fact or conclusions of law concerning the imposition of the penalty. We agree and, therefore, reverse and remand on that point.

The order sub judice states simply, “The Claimant is entitled to penalties in the amount of 10% on past due compensation in the amount of $2,665.60, which computes to a total amount due of $266.56.” The order makes no findings of fact or conclusions of law relative to this award. In Stardust Motel v. St. Claire, 418 So.2d 1151 (Fla. 1st DCA 1982), this court stated:

The imposition of the proper penalty should not be left to inference, but should be set forth in a finding by the DC that states the ultimate facts and conclusions supporting the imposition of the penalty. The DC has the same obligation to state the ultimate facts and conclusions supporting the imposition of a penalty as he has in regard to any other award of benefits.

Id. at 1151-1152. See also Fairmont Re-Bar Fab v. White, 438 So.2d 991 (Fla. 1st DCA 1983); Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981).

Accordingly, the order is reversed and the cause remanded for the deputy commissioner to make findings of fact and conclusions of law concerning the penalty imposed. In all other respects the order appealed is affirmed.

JOANOS and THOMPSON, JJ., concur.


text:
    PALM BEACH CROWN LIQUORS, and Scott Wetzel Services, Appellants, v. Kenneth SMITH, Appellee.
    No. AT-81.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1984.
    Thomas W. Conroy, of Conroy & Sim-berg, P.A., Hollywood, for appellants.
    Kevin F. Richardson, of Law Offices of Shelton Clyatt, Jr., P.A., West Palm Beach, for appellee.
   PER CURIAM.

The deputy commissioner’s order sub ju-dice contains a scrivener’s error. Paragraph number 1 in the decretal portion of the order awards wage loss benefits from December 1, 1980. The correct date for the commencement of wage loss benefits should be December 1, 1982, and the order is hereby modified to reflect the correct date. As modified, the order is

AFFIRMED.

SHIVERS, JOANOS and THOMPSON, JJ., concur.


text:
    EXXON COMPANY, U.S.A., Appellant, v. Frank ORLANDO, Appellee.
    No. AT-162.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1984.

      Barry L. Pemsler of Richard & Pemsler, Miami, for appellant.
    Peter S. Schwedock of Pelzner, Schwe-dock, Finkelstein & Klausner, P.A., Miami, for appellee.
   McCORD, GUYTE P., Jr. (Retired), Associate Judge.

In this workers’ compensation appeal the employer contends that the deputy erred in approving for claimant a lump-sum advance of $23,686. We agree and reverse.

Before approving such an advancement, the deputy must determine that it is in the best interest of the claimant, is reasonable under the circumstances of the case, and will not materially prejudice the rights of the employer/carrier. §§ 440.-20(12)(a) and (d), Fla.Stat. (1981). The operative inquiry is whether the advancement is in “the best interest of the person entitled to compensation,” and the mere fact that the claimant can receive a higher interest rate upon the advanced funds, and thus a better return on his expected benefits, is insufficient to demonstrate that the lump-sum payment is in his best interest, see Court of Flags v. Outland, 382 So.2d 443, 444 (Fla. 1st DCA 1980), just as it is insufficient to demonstrate material prejudice to the employer/carrier. See Sanford v. Alachua County School Board, 425 So.2d 112, 114 (Fla. 1st DCA 1982). Since the claimant has advanced no substantial justification for this lump-sum payment other than that he can receive this higher interest rate, we must conclude that the award is not supported by substantial competent evidence.

REVERSED and REMANDED for further proceedings consistent with this opinion.

MILLS and WENTWORTH, JJ., concur.


author: MILLS, Judge.

text:
    Caroline OUELLETTE, Appellant, v. TREASURE ISLE, INC., and Whiting National Services, Appellees.
    No. AT-164.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1984.

      Susan R. Whaley of Macfarlane, Ferguson, Allison & Kelly; Larry Anzalone, Tampa, for appellant.
    Steven T. Northcutt of Levine, Freedman, Hirsch & Levinson, Tampa, for appel-lees.
   MILLS, Judge.

In this workers’ compensation action, claimant Ouellette appeals from the deputy commissioner's order granting the employer/ carrier’s petition for modification. We reverse.

Following an industrial accident on 9 August 1978, the employer/carrier voluntarily accepted Ouellette as permanently and totally disabled because of resulting psychological^ problems. In the course of treatment, Ouellette complained to her psychiatrist about difficulty urinating. On 10 October 1979, Ouellette’s psychiatrist referred her to Dr. Crowell, a urologist.

The employer/carrier contested Ouel-lette’s claim for the costs of Dr. Crowell’s continuing services. A hearing was held and based on Dr; Crowell’s deposition, taken in May 1980, the deputy commissioner found Ouellette’s urinary problem related to the accident. The employer/carrier was ordered to pay for treatment of the problem.

In October 1982, however, the employer/carrier received a medical report from Dr. Crowell describing Ouellette’s problem as a “neurogenic bladder.” This description prompted the employer/carrier to file a petition for modification.

Dr. Crowell’s deposition was again taken, this time on 13 April 1988. Based on this deposition, the deputy commissioner modified the original order pursuant to Section 440.28, Florida Statutes (1981), for mistake of fact. Among other things, the deputy commissioner found:

The precise issue here sought to be litigated was previously decided by Order dated June 11, 1980, and the employer/carrier was ordered to furnish further treatment by Dr. Crowell. Dr. Crowell, after further treatment of the claimant, has now decided that the claimant’s neu-rogenic bladder is probably not psychogenic in nature and is probably not causally related to the injury of August 9, 1978. Therefore, the prior Order was based upon a mistake of fact and should be modified pursuant to Section 440.28, F.S.; the employer/carrier should not be required to furnish further treatment for the claimant’s neurogenic bladder.

Ouellette filed a motion for rehearing seeking to convince the deputy commissioner that Dr. Crowell did not say the urinary problem was not caused by the industrial accident or that Ouellette’s problem was entirely neurogenic. At the hearing on this motion, Dr. Crowell testified live.

Following the hearing, the deputy commissioner issued another order upholding his decision not requiring the employer/carrier to pay for further treatment of the urinary problem. This appeal ensued.

Modification for mistake of fact pursuant to Section 440.28 is not proper if the evidence relied upon merely increases the quantum and probative force of evidence supporting a conclusion contrary to that reached by the prior determination. Hall v. Seaboard Maritime Corp., 104 So.2d 384 (Fla. 1st DCA 1958). Modification for mistake of fact based on a change in the treating physician’s opinion as to causation is justified “where the state of the medical art advances to the point that new evidence becomes available which was not and could not have been previously known.” Hughes v. Denny’s Restaurant, 328 So.2d 830 (Fla.1976).

In his 1980 deposition, Dr. Crowell could not say whether the problem was psychogenic or neurogenic. Yet the deputy commissioner obviously thought his testimony provided sufficient evidence of causal relation at that time.

The gist of his testimony in 1983 (both live and by deposition) is that he thinks the problem is at least partly neuro-genic. The testimony does not show Dr. Crowell was mistaken in his earlier diagnosis, only that he now believes there is some neurogenic problem, whereas in 1980 he could not say one way or the other.

In this case, the change in the treating physician’s opinion resulted from the fact that Ouellette’s urinary problem had continued for several years. This alone does not satisfy the Hughes standard. Modification for mistake of fact was improper.

REVERSED.

WENTWORTH, J., and McCORD, Guyte P., Jr., (Ret.), Associate Judge, concur.


author: SCHEB, Acting Chief Judge.

text:
    James MROZOWSKI, Appellant, v. STATE of Florida, Appellee.
    No. 83-826.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1984.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

The state charged James Mrozowski by information with attempted second degree murder. He entered a plea of nolo conten-dere to the lesser included offense of aggravated battery. He was adjudicated guilty of that offense, and on March 11, 1983, the court sentenced him to ten-years imprisonment. The court retained jurisdiction over one-half of his sentence, pursuant to section 947.16(3) Florida Statutes (Supp. 1982).

Mrozowski contends that in accepting his plea the trial court erred in failing to inform him that it could retain jurisdiction over one-half of any sentence imposed. He is correct. State v. Green, 421 So.2d 508 (Fla.1982); Brown v. State, 434 So.2d 21 (Fla. 2d DCA 1983); Fairweather v. State, 432 So.2d 688 (Fla. 2d DCA 1983).

Accordingly, we reverse and remand to the trial court. On remand the court must either strike that portion of the judgment and sentence retaining jurisdiction over one-half of Mrozowski’s sentence or allow him to withdraw his plea.

SCHOONOVER and LEHAN, JJ., concur.


author: CAMPBELL, Judge.

text:
    Gary C. KELLEY, Appellant, v. Susan M. KELLEY, Appellee.
    No. 83-995.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1984.
    Linda R. Allan, St. Petersburg, for appellant.
    Wayne O. Smith, St. Petersburg, for ap-pellee.
   CAMPBELL, Judge.

Appellant/husband, Gary C. Kelley, seeks reversal of a final judgment of dissolution of marriage, arguing to this court two points on appeal:

I. WHETHER THE TRIAL COURT ERRED BY FAILING TO AWARD THE HUSBAND SPECIAL EQUITY IN THE MARITAL HOME?
II. WHETHER THE TRIAL COURT FAILED TO CONSIDER THE HUSBAND’S ABILITY TO PAY IN ITS AWARDS OF CHILD SUPPORT AND ALIMONY CONSTITUTING AN ABUSE OF DISCRETION?

We find appellant’s first point to be without merit as the trial judge’s action on that point has support in the record.

Appellant’s second point, however, causes us sufficient concern to require reversal of the trial judge. The financial ability of the husband to make all of the payments in the amount ordered by the trial judge is not supported by the record.

At the time of the dissolution, the evidence showed the wife earned between $100 to $120 per week. The only direct evidence of the husband’s earnings was his financial affidavit which indicated his net weekly take-home pay was $250. The wife testified that she had reviewed bank statements and records which caused her to estimate the husband’s weekly income at $300. The trial judge ordered the husband to pay $35 per week for child support for each of two children, for a total of $70 per week. The effect of the dissolution was to leave the parties owning the marital home as tenants in common. The wife was awarded exclusive possession of the home until such time as she remarried or the youngest child attains majority, whichever should first occur. The husband was ordered to pay the mortgage payments on the marital home in the amount of $417 per month, which figures out to $96.23 per week. An undeveloped lot in Hamilton County, Florida was ordered sold and the proceeds divided between the parties. The wife was awarded sole ownership of jointly owned stocks of the approximate value of $1,300. The husband’s weekly obligations under the final judgment amount to $166.23, to be paid from a weekly income of $250 to $300. The husband is therefore left with $83.77 to $133.77 on which to provide himself with a place to live and the other necessities of life. The wife and children are provided with the home to live in and the weekly amount of $70 child support and her income of $100 to $120.

Admittedly, the financial circumstances of the parties, under the best of conditions, leaves much to be desired. However, we feel the requirements upon appellant are beyond his clearly demonstrated ability to pay. This is one of those cases where we conclude that remanding to the trial court for modification would not accomplish a great deal. The trial judge has assuredly done the best he considered could be done. Accordingly, we reluctantly exercise our prerogative and reverse and remand to the trial court with instructions to amend the final judgment only to the extent that each party shall be ordered to pay one-half the mortgage payments on the marital home. Otherwise, the final judgment shall remain the same.

Reversed and remanded with instructions.

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


author: SCHOONOVER, Judge.

text:
    Walter C. HEINRICH, as sheriff of Hillsborough County, Florida, Appellant, v. Clifton Darnel MILLER, Appellee.
    No. 83-1099.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1984.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellant.
    No appearance for appellee.
   SCHOONOVER, Judge.

The appellant, Walter C. Heinrich, Sheriff of Hillsborough County, Florida, has appealed an order dismissing his petition for forfeiture of a motor vehicle pursuant to the Florida Contraband Forfeiture Act. We find that if the appellant can prove the allegations of his petition, he is entitled to the relief requested, and accordingly, we reverse.

The appellant’s petition and attached affidavit allege that a detective with the Hillsborough County Sheriff’s Department, on three separate occasions, received cocaine from the appellee, Clifton Darnel Miller. On each of these occasions, the cocaine was delivered to the detective in the vehicle subject to these forfeiture proceedings.

The appellee’s answer to the petition stated that the vehicle was not significantly involved in the furtherance of an illegal drug trafficking operation, and therefore the forfeiture proceedings should be dismissed.

The trial court, without allowing the appellant to present any evidence supporting the allegations contained in his petition, dismissed the proceedings with prejudice. In the written order, the court assumed that the sheriff could establish all of the allegations contained in his complaint. However, the court ruled that, since the cocaine, 1.6 grams, could have been concealed in a pocket, a coat, or carried around in a paper bag, there was an insufficient nexus between the motor vehicle and the furtherance of an illegal drug trafficking operation.

If the appellant can prove the allegations of his petition, he is entitled to have the motor vehicle forfeited under the Florida Contraband Forfeiture Act. The fact that the cocaine was of such a quantity that it could be carried in the appellee’s pocket, coat, or a paper bag is not material under the current act. Hardcastle v. Kratz, 443 So.2d 1027 (Fla. 2d DCA 1983); Naples Police Dept. v. Small, 426 So.2d 72 (Fla. 2d DCA 1983); State v. Peters, 401 So.2d 838 (Fla. 2d . DCA 1981).

We accordingly reverse and remand for proceedings consistent herewith.

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


text:
    O.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 83-1232.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1984.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, O.B., appeals his adjudication of delinquency for robbery. We affirm on the authority of S.B. v. State, 392 So.2d 592 (Fla. 2d DCA 1981).

OTT, C.J., and BOARDMAN and CAMPBELL, JJ., concur.


text:
    C.W. McKEE, Jr., Appellant, v. TOURTELOT BROTHERS, INC., Appellee.
    No. 83-1310.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1984.

      Joseph W. Fleece, III, of Belcher & Fleece, P.A., St. Petersburg, for appellant,
    Sharon A. Meininger, St. Petersburg, for appellee.
   PER CURIAM.

Affirmed. Under the facts of this case, the listing agreement between a real estate broker and a property owner contained an enforceable provision for payment of a fee to the broker upon termination of the agreement by the property owner.

OTT, C.J., and BOARDMAN and LE-HAN, JJ., concur.


text:
    Darrell L. CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1853.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1984.
   PER CURIAM.

Darrell L. Chapman appeals from an order summarily denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised two allegations in his motion.

The trial court was correct in denying appellant’s initial allegation that he was denied effective assistance of counsel.

However, appellant’s second allegation that his plea was involuntarily entered into, in that he was on psychotropic drugs and not of a sound mind, if true, may entitle appellant to relief. The trial court, nonetheless, failed to conduct an evidentiary hearing or attach portions of the record which refute this allegation.

Accordingly, we reverse in part the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to appellant’s second allegation and attach to its order those portions of the record which conclusively show that appellant is not entitled to relief or hold an evidentiary hearing and then rule on appellant’s second allegation as stated in his motion. See Fla.R.Crim.P. 3.850; see also, Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Gunn v. State, 379 So.2d 431 (Fla. 2d DCA 1980).

Affirmed in part, reversed in part, and remanded.

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


text:
    James FULLER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-2138.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1984.
   SCHEB, Acting Chief Judge.

James Fuller, Jr. challenges the trial court’s summary denial of his motion seeking postconviction relief under Florida Rule of Criminal Procedure 3.850.

Fuller was convicted of several offenses and sentenced on December 29, 1982. He contends that some of the crimes for which he was convicted may be lesser included offenses of his other convictions. This allegation, if true, would entitle him to relief under Rule 3.850. However, it is impossible for us to determine the merit of his contentions without the aid of, at least, the charging documents), and possibly other portions of the record. Watkins v. State, 413 So.2d 1275 (Fla. 1st DCA 1982). Therefore, it was error for the trial court to fail to either conduct an evidentiary hearing or to attach the necessary supporting documents to its order.

Accordingly, we reverse the trial court’s denial of Fuller’s motion and remand the case to the trial court. On remand the court may either again summarily deny the motion and attach to its order those portions of the record which conclusively show defendant is not entitled to relief, or it may hold an evidentiary hearing and then rule on the ground alleged in Fuller’s motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982), and VanBever v. State, 405 So.2d 474 (Fla. 5th DCA 1981). To obtain further review Fuller must appeal the new ruling of the trial court.

SCHOONOVER and LEHAN, JJ., concur.


author: RYDER, Judge.

text:
    In re STATE ATTORNEY’S OFFICE INVESTIGATIVE SUBPOENA DATED NOVEMBER 2, 1983. Peter D. RINGSMUTH, Petitioner, v. STATE of Florida, Respondent.
    No. 83-2309.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1984.

      Dennis J. Rehak, Fort Myers, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for respondent.
   RYDER, Judge.

Peter D. Ringsmuth, an attorney at law, has filed a petition for writ of certiorari seeking review of the trial court’s order that Ringsmuth must disclose the identity of a client. We have jurisdiction. Article V, Section 4(b), Florida Constitution; Fla.R. App.P. 9.030(b).

The parties have provided a stipulated record to this court. The record reveals that Fort Myers Police Detective Hilton Daniels investigated a burglary which occurred on October 20, 1983. As he conducted the scene investigation, Daniels found a business card of petitioner Rings-muth. On the back of the card appeared a handwritten notation: November 8, 1983, 1:30 p.m.

On November 2, 1983, Ringsmuth was served with a state attorney’s office investigative subpoena. Ringsmuth appeared at the office of the state attorney where he was asked to disclose the identity of the person who was to have an appointment with him at 1:30 p.m. on November 8, 1983. Ringsmuth refused to answer the question and immediately invoked the attorney/client privilege.

A hearing was convened before Judge James R. Thompson who, thereafter, found that: there existed an attorney/client relationship between Ringsmuth and the undisclosed client; the client must have consulted Ringsmuth about a matter which arose before the burglary, and the card and date thereon concerned that matter and not the burglary; “since there was logically no confidential communications relating to the burglary that involved the case incident to the November 8, 1983 date, the attorney/client privilege did not apply to the burglary incident.” The court concluded that because no attorney/client privilege surrounded the burglary incident, Rings-muth must disclose the identity of the client. The court ordered Ringsmuth to disclose the name of the client or seek appellate review.

The principal thrust of the petitioner’s argument is that the attorney/client privilege protects communications between an attorney and his client, section 90.502, Florida Statutes (1981), and there is no evidence that the client had not discussed the bur- ' glary with Ringsmuth after its commission and before Ringsmuth was served with the investigative subpoena. The conclusion is then drawn that while the identity of a client generally is not privileged, in this case disclosure would destroy the confidential relationship between Ringsmuth and the client regarding the preexisting situation as well as the burglary. Anderson v. State, 297 So.2d 871 (Fla. 2d DCA 1974), and Ex Parte Enzor, 270 Ala. 254, 117 So.2d 361 (1960), are cited in support of Ringsmuth’s position.

The state answers that the attorney/client privilege attaches to confidential communications which are not intended to be disclosed to third persons who are. not furthering the rendition of legal services. Mobley v. State, 409 So.2d 1031 (Fla.1982). It is argued that requiring Ringsmuth to identify his client will not amount to a revelation of any confidence or privileged information. The state reiterates the general rule that a client’s identity is not privileged. Anderson, supra; see Frank v. Tomlinson, 351 F.2d 384 (5th Cir.1965), cert. denied, 382 U.S. 1028, 86 S.Ct. 648, 15 L.Ed.2d 540 (1966). The privilege presupposes the attorney/client relationship, but does not attach to its creation. See generally, Annot., 16 A.L.R.3d 1047 (1967); 81 Am.Jur.2d Witnesses § 213 (1976).

It is, indeed, an accurate general rule that the identity of a client is not privileged. Anderson, supra. In this case, that principle applies. There has been no allegation made by the petitioner that he and his client have actually discussed the alleged burglary, or that the petitioner rendered legal advice or services to the client in regard to the burglary. Thus, it cannot be said that to require petitioner Ringsmuth to reveal his client’s name would result in implicating the client in criminal activity for which legal advice was sought from Ringsmuth. See In Re Grand Jury Proceedings in the Matter of Fine, 641 F.2d 199 (5th Cir.1981). As nothing in the record gives any support for the petitioner’s argument, the circuit court properly ordered Ringsmuth to identify his client.

The petition for writ of certiorari is denied.

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


author: ZEHMER, Judge.

text:
    NORTH BROWARD HOSPITAL DISTRICT, Petitioner, v. HUMANA OF FLORIDA, INC., d/b/a Women’s Hospital of Boca Raton, and Department of Health and Rehabilitative Services, Respondents.
    No. AV-56.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1984.
    Parker, Hudson, Rainer, Dobbs & Kelly, Atlanta, Ga., and Gibbs & Zei, P.A., Fort Lauderdale, for petitioner.
    Jay Adams, Asst. Gen. Counsel, Dept, of Health & Rehabilitative Services, and John H. French, Jr., of Messer, Rhodes & Vick-ers, Tallahassee, for respondents.
   ZEHMER, Judge.

North Broward Hospital District (NBHD) seeks review of a hearing officer’s order denying its petition to intervene in an ongoing Department of Health and Rehabilitative Services (HRS) administrative proceeding.

NBHD attempts to invoke our jurisdiction pursuant to article V, section 4(b), Florida Constitution; section 120.68(1), Florida Statutes (1981); and rule 9.100, Florida Rules of Appellate Procedure. All of these jurisdictional vehicles relate to appellate review of “agency action.” It has recently been held by this court that orders of hearing officers, subject to limited exceptions, do not constitute “agency action.” Department of Professional Regulation ¶. Honorable Sharyn L. Smith, No. AU-248 (Fla. 1st DCA, Jan. 26, 1984); Department of Professional Regulation v. Williams, 444 So.2d 502 (Fla. 1st DCA 1984); Department of Professional Regulation v. LeBaron, D.D.S., 443 So.2d 225 (Fla. 1st DCA 1983); Beckum, O.D. v. Department of Health and Rehabilitative Services, 443 So.2d 227 (Fla. 1st DCA 1983); Boedy v. Department of Professional Regulation, 428 So.2d 758 (Fla. 1st DCA 1983). The issue raised by NBHD regarding the correctness of the hearing officer’s denial of its petition to intervene should be addressed by HRS before it is addressed here. If the agency disagrees with the hearing officer’s recommendation, then judicial review will be unnecessary; if the agency accepts the hearing officer’s recommendation, then we will have for our review “agency action” pursuant to section 120.68(1), Florida Statutes. This court has previously held that an agency order denying a petition to intervene is final agency action reviewable under section 120.68(1). Laborers International Union of North America, Local 666 v. Public Employees Relations Commission, 336 So.2d 450 (Fla. 1st DCA 1976).

In accordance with Boedy, supra, we remand to HRS for a period of twenty days and direct that HRS enter an order either accepting or rejecting the hearing officer’s order denying the petition to intervene. Upon the filing with this court of a certified copy of the department’s order, our jurisdiction will again attach and the petition for review will be considered as addressed to the department’s dispositive order if that order denies the petition to intervene, or the petition will be dismissed as moot should the department grant the petition to intervene.

ERVIN, C.J., and NIMMONS, J., concur.


author: GLICKSTEIN, Judge.

text:
    COTTON STATES MUTUAL INSURANCE COMPANY, Petitioner, v. TURTLE REEF ASSOCIATES, INC. a Florida corporation, Respondent.
    No. 83-262.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 1984.

      Gregory M. Keyser of Paxton, Crow, Bragg, & Austin, P.A., West Palm Beach, for petitioner.
    Hubert R. Lindsey, West Palm Beach, for respondent.
   GLICKSTEIN, Judge.

By petition for writ of certiorari, Cotton States Mutual Insurance Company seeks review of a non-final order granting respondent Turtle Reef Associates, Inc.’s motion to compel production of the contents of an independent insurance investigator’s file compiled during his investigation of Turtle Reef’s claim. Cotton States contends the contents of the file are work product and therefore privileged.

The work product privilege attaches to statements and materials prepared by a party’s investigator or insurer only if these were prepared in contemplation of litigation. See Alachua General Hospital, Inc. v. Zimmer USA, Inc., 403 So.2d 1087 (Fla. 1st DCA 1981); Shawmut Van Lines, Inc. v. Small, 148 So.2d 556 (Fla. 3d DCA 1963). Mere likelihood of litigation does not satisfy this qualification. Because the applicable rule, Florida Rule of Civil Procedure 1.280(b)(2), closely resembles Federal Rule of Civil Procedure 26(b)(3), we look to federal case law for guidance.

In United States v. El Paso Company, 682 F.2d 530, 542 (5th Cir.1982), the court of appeals drew attention to the advisory committee note to the federal rule, which states materials assembled in the ordinary course of business or pursuant to public requirements unrelated to litigation are excluded from work product. In Carver v. Allstate Insurance Company, 94 F.R.D. 131 (S.D.Ga.1982), it is stated that an insurance company’s claims investigation in its early stages is conducted in the ordinary course of business; the object is to determine whether to honor the claim or resist it, and whether to seek subrogation against a third party. In Carver, reports produced early on by a claims representative were not privileged, whereas subsequent reports of a senior claims representative, assigned when it was established the extent of loss was great and when arson was suspected, were privileged because they were prepared in anticipation of litigation.

Here Cotton States retained an independent claims investigator, Donald D. Webb, to investigate Turtle Reef’s claim. The trial judge cannot recall whether, when, he heard Turtle Reef’s motion to compel, he inspected the file Webb had compiled. Although Webb’s description of his file’s contents, given at deposition, suggests his investigation was of the preliminary kind that insurance company’s conduct in the ordinary course of business, we are not prepared to make this determination sight unseen. Accordingly we remand to the trial court so that the contents of Webb’s file may be inspected and a determination made consonant with the federal case law cited herein.

ANSTEAD, C.J., and WALDEN, J., concur.


text:
    F. Craig CLEMENTS, as Personal Representative of the Estate of Francis Craig Clements, Jr., deceased, and Joyce Lois Clements, deceased, Appellant, v. BOCA AVIATION, INC., a Florida corporation, et al., Appellees.
    No. 83-644.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 1984.
    Dixon, Dixon, Hurst & Nicklaus; Head-ley & Headley; and Sam Daniels and Patrice A. Talisman of Daniels & Hicks; Miami, for appellant.
    Howard Barwick and David M. Wiegand of Law Offices of Howard E. Barwick, P.A., Miami Shores, for appellee Boca Aviation, Inc.
   PER CURIAM.

We believe the trial court erred in excluding interrogatories and answers thereto as to the policy of Boca Aviation, Inc. to require certain minimum flying experience on the part of persons renting its aircraft. Reese v. Seaboard Coastline Railroad, 360 So.2d 27 (Fla. 4th DCA 1978), cert. dismissed, 366 So.2d 884 (Fla.1978). Because there is evidence that this policy was violated and that the violation may have had some causal connection to the accident in question, we cannot conclude that the error was harmless. Accordingly, we reverse and remand for a new trial.

ANSTEAD, C.J., and DOWNEY and HERSEY, JJ., concur.


text:
    Larry WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 83-806.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 1984.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beách, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Although we are of the view that the trial court should not have stated to a prosecution witness upon completion of her testimony, “Thank you, Miss Smith. Good luck to you,” we do not believe such remark mandated a mistrial. Cf. Blake v. State, 336 So.2d 454 (Fla. 3d DCA 1976) and People v. Roby, 38 Mich.App. 387, 196 N.W.2d 346 (1972). In our view any error could have been cured by an instruction to the jury, but no such instruction was requested. We also find no error in the other issues raised.

Accordingly, the judgment and sentence are affirmed.

ANSTEAD, C.J., and BERANEK, J., concur.

WALDEN, J., dissenting without opinion.


text:
    Daniel HUDSON, a/k/a David Sands, Appellant, v. STATE of Florida, Appellee.
    No. 83-1356.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 1984.
    Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Evidence of similar facts is admissible for any purpose if relevant to any material issue, other than propensity or bad character, even though such evidence points to commission of another crime. Drake v. State, 400 So.2d 1217 (Fla.1981); Williams v. State, 110 So.2d 654 (Fla.1959); Section 90.404(2)(a), Florida Statutes (1982). Our review of the record also reveals that the State did in fact establish ownership and identity of the stolen property by competent, substantial evidence. Johnson v. State, 353 So.2d 889 (Fla. 3d DCA 1977). See also, State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980).

AFFIRMED.

GLICKSTEIN and WALDEN, JJ., concur.

ANSTEAD, C.J., dissents without opinion.


author: WATSON, Justice. CALOGERO, Justice.

text:
    R.J. D’HEMECOURT PETROLEUM, INC., et al. v. Shirley McNAMARA, Secretary of the Department of Revenue and Taxation, State of Louisiana.
    No. 83-CA-1231.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    Rehearing Denied Feb. 2, 1984.

      Frank J. Uddo, New Orleans, for plaintiff-appellee.
    Howard M. Romaine, Baton Rouge, for defendant-appellant.
   WATSON, Justice.

In this class action suit by Louisiana retail gasoline merchants, plaintiffs asked that LSA-R.S. 47:353 be declared unconstitutional as to them and occupational license taxes paid under protest be refunded. The trial court declared the law unconstitutional and ordered the refunds. LSA-R.S. 47:2110. The Secretary of the Louisiana Department of Revenue and Taxation has appealed.

At the outset of trial, all parties stipulated to the class as being all retail gasoline merchants who paid the occupational license tax under protest for the years 1979 and 1980 (Tr. 3). A list of such merchants was placed into the record (S-l).

A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. Placid Oil Company v. AM. Dupont Corporation, 244 La. 1075,156 So.2d 444 (1963). Stipulations between the parties in a specific case are binding on the trial court when not in derogation of law. Wickliffe v. Cooper and Sperrier, 161 La. 417, 108 So. 791 (1926). Such agreements are the law of the case. The class action was appropriate.

In declaring LSA-R.S. 47:353 unconstitutional, the trial court found that its interaction with federal “margin of profits” regulations produced a discriminatory effect upon retail gasoline merchants in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution and Art. I, § 3, Louisiana Constitution of 1974.

Under Section 353, the tax becomes larger as gross sales increase. Although the wholesale price of gasoline soared in 1979 and 1980 due to cutbacks in supply by oil producing countries, plaintiffs’ retail profits were curtailed by federal limitations. Plaintiffs claim that these federal limits on their profits distinguish them from other retail merchants resulting in a discriminatory tax burden from the occupational license tax.

Statutory classifications do not violate equal protection guarantees if they bear a rational relation to a legitimate governmental purpose. Statutes are subject to a higher level of scrutiny if they interfere with the exercise of a fundamental right or employ a suspect classification. Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). The tax on retail gasoline merchants does neither.

Legislators have broad latitude in creating tax classifications. In Regan v. Taxation with Representation of Washington, — U.S. - at -, 103 S.Ct. 1997 at 2002, 76 L.Ed.2d 129 at 138 (1983) the court stated:

“ ‘The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized. ... in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.’ Madden v. Kentucky, 309 U.S. 83, 87-88, 60 S.Ct. 406, 407-408, 84 L.Ed. 590 (1940) (footnotes omitted).”

State taxes with the collateral effect of restricting or even destroying a business or occupation have been sustained. Lehnhausen v. Lake Shore Auto Parts, 410 U.S. 356, 360, 93 S.Ct. 1001, 1004, 35 L.Ed.2d 351, 355 (1973).

In Acorn v. City of New Orleans, 377 So.2d 1206 (La., 1979) there was a constitutional challenge to a city ordinance which imposed a one hundred dollar annual charge on each parcel of real property separately listed on the tax rolls. Although the tax had a disproportionate impact on owners of small and large tracts, the city ordinance was upheld:

“The Equal Protection Guarantee of the Fourteenth Amendment does not take from the States all power of classification. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, [2567], 49 L.Ed.2d 520. Most laws classify, and many affect certain groups unevenly, even though the law itself treats them no differently from all other members of the class described by the law. When the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern. New York Transit Authority v. Beazor, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587; Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, [1732], 32 L.Ed.2d 285. Cf. James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678. The calculus of effects, the manner in which a particular law reverberates in a society, is a legislative and not a judicial responsibility. ...” 377 So.2d at 1216-1217.

To be unconstitutional, a classification must be manifestly arbitrary and unreasonable, and not possibly so. Gulf States Utilities Co. v. Traigle, 310 So.2d 78 (La., 1975). A discriminatory purpose is not presumed. Parties attacking a statute must bear the burden of proving clear and intentional discrimination. Louisiana & Arkansas Railway Company v. Goslin, 300 So.2d 483 (La., 1974).

These service station owners lost profits because the product they sold cost more and there was a diminished quantity available for sale. This situation was exacerbated by federally imposed profit limitations. However, no evidence has been offered that other retail merchants subject to the tax did not suffer from similar adverse circumstances. Thus, these retail gasoline merchants have failed to distinguish themselves from other retail merchants. The pressures of the market place could have acted in the same manner as the federal profit controls to limit other retailers’ gross profits.

The statute creates a class of retailers taxed on a sliding scale based on gross profits. It has a rational relationship to a legitimate government purpose, raising revenue. While the tax may have a disproportionately greater impact upon retailers subject to federal profit controls, no violation of equal protection has been proven.

For the reasons assigned, the judgment of the trial court is reversed and plaintiffs’ suit is dismissed.

REVERSED.

APPENDIX

LSA-R.S. 47:353 provides:

“For every business of selling merchandise, soda water, ice cream, confections, soda pop, coca-cola, cherocola, grapico, or other similar soft drinks or beverages or refreshments, at retail; or for the business of operating a restaurant, tea room, coffee house or other eating house, establishment or place where any charge whatsoever is made for any food, drink or service, whether attached to or conducted separate and apart from any oth- ■ er business; or for the business of operating vending machines or weighing machines, except those operated for the cooling and vending of bottled soft drinks, not otherwise provided for by this chapter, or by special laws, whether the business be conducted as principal, agent on commission or otherwise, the license shall be based on the gross sales. The amount of this license shall be as shown in the following table:
“If the Gross Sales are:
Annual License Shall Be: As Much As But Less Than Th
$ 5 0 5,000
10 5,000 10,000
15 10,000 15,000
20 15,000 20,000
25 20,000 25,000
30 25,000 30,000
35 30,000 40,000
50 40,000 50,000
60 50,000 75,000
90 75,000 100,000
120 100,000 150,000
180 150,000 200,000
250 200,000 250,000
300 250,000 300,000
As Much As But Less Than The Annual License Shall Be:
300,000 400,000 360
400,000 500,000 500
500,000 600,000 650
600,000 750,000 800
750,000 1,000,000 900
1,000,000 1,500,000 1,200
1,500,000 2,000,000 1,800
2,000,000 2,500,000 2,400
2,500,000 3,000,000 3,000
3,000,000 3,500,000 3,600
8,500,000 4,000,000 4,200
4,000,000 4,500,000 4,800
4,500,000 5,000,000 5,400
5,000,000 . 6,000
“For each separate establishment where more than one such establishment is kept or conducted by the same person, there shall be a separate license, as herein fixed, provided that in the case of a business or operating coin vending or weighing machines, a separate license shall not be required for each place or establishment where the machines are operated. No license shall be imposed under this Chapter for selling or serving food or drink for charitable or religious purposes.
“In calculating the gross sales at retail gasoline filling and service stations, the taxpayer shall exclude therefrom that part of the purchase price paid by him for gasoline, motor fuels, or lubricating oils as shall equal the manufacturer’s or dealer’s license, privilege, or excise tax levied by federal or state statutes on the manufacturing, handling, storing, selling or consuming of gasoline, motor fuels or lubricating oils; but nothing herein contained shall be construed as amending, altering, or modifying any other section of this Chapter.”

The Occupational License Tax scheme is contained in LSA-R.S. 47:341-47:405. Effective January 1, 1982, the power to collect annual occupational license taxes was transferred from the State to the governing authority of each local governmental subdivision.

LSA-R.S. 47:341(B) now provides:

“The annual license tax imposed on any individual, corporation, partnership, or other legal entity shall not exceed the tax which could have been imposed pursuant to Article YI, Section 28 of the Constitution of Louisiana and to R.S. 47:342-47:405 on such individual, corporation, partnership, or other legal entity by a local governmental subdivision on December 31, 1981, and such tax shall be subject to all exemptions, limitations, and provisions of law which were in effect on December 31, 1981.”

LSA-R.S. 47:1576 provides:

“A. A right of action is hereby created to afford a remedy at law for any person aggrieved by the prohibition of courts restraining the collection of tax, penalty, interest, or other charges imposed in this Subtitle. The person resisting the payment of any amount found due by the collector, or of enforcement of any provisions of this Subtitle, • shall remit the amount found due to the collector and at that time shall give the collector notice of his intention to file suit for the recovery thereof. Upon receipt of this notice, the amount remitted shall be placed in an escrow account and held by the collector or his duly authorized representatives for a period of thirty days. If suit is filed within the thirty-day period for the recovery of such amount, the funds in the escrow account shall be further held pending the outcome of the suit. If the person prevails, the collector shall refund the amount to the claimant, with interest at the rate of six percent per annum covering the period from the date the funds were received by the collector to the date of refund.
“B. This Section shall afford a legal remedy and right of action in any state or federal court having jurisdiction of the parties and subject matter, for a full and complete adjudication of any and all questions arising in the enforcement of this Subtitle as to the legality of any tax accrued or accruing or the method of enforcement thereof. In such action, service of process upon the collector shall be sufficient service, and he shall be the sole necessary and proper party defendant in any such suit.
“C. This Section shall be construed to provide a legal remedy in the state or federal courts, by action at law, in case such taxes are claimed to be an unlawful burden upon interstate commerce, or the collection thereof, in violation of any Act of Congress or the United States Constitution, or the Constitution of the state of Louisiana, or in any case where jurisdiction is vested in any of the courts of the United States.
“D. Upon request of a person and proper showing by such person that the principle of law involved in an additional assessment is already pending before the courts for judicial determination, such person, upon agreement to abide by the decision of the courts, may remit the additional assessment under protest, but need not file an additional suit. In such cases the tax so paid under protest shall be placed in an escrow account and held by the collector until the question of law involved has been determined by the courts and shall then be disposed of as therein provided.”

This provision was amended by two different acts of the 1982 legislative session.

ON APPLICATION FOR REHEARING

CALOGERO, Justice.

I would grant a rehearing to reexamine the constitutionality of La.R.S. 47:353 as it applied to gasoline retailers in 1979 and 1980.

Although La.R.S. 47:353 on its face treated all retailers evenhandedly in setting annual fees for occupational licenses, its effect on gasoline retailers during the time in question resulted in their having to sustain a more severe tax burden than did all other respective retailers during the same time period. This more severe burden was not, in my view, rationally related to any legitimate state end and so ran counter to the equal protection guarantees of the state and federal constitutions.

The apparent governmental purpose in instituting the occupational license tax was to raise state tax revenues. The means of a graduated fee schedule for retailers was designed to place the responsibility for higher license fees on those having higher total gross sales. The rationale behind the scheme was that those enjoying higher gross sales more than likely would enjoy higher profits and therefore should be made to pay a higher occupational tax. However, higher gross sales for the gas retailer during the pertinent tax periods involved in this litigation did not mean that he enjoyed higher profits because of the federal “margins of profit” regulations imposed upon him. The impact on the gas retailers of the upward sliding scale for occupational license fees was at least substantially disproportionate vis a vis other retailers since, among retailers, the gasoline retailer alone was affected by this margin of profits regulation. As a consequence, it cannot be said that gas retailers and other retailers were similarly situated. Unlike the scheme as applied to other retailers, there was no rational connection between the gross sales of the gas retailers and their ability to pay increased occupational license fees. Their profit per gallon was static notwithstanding substantially increasing gas prices.

Accordingly, because La.R.S. 47:353 during the time in question affected not only those retailers to whom higher gross sales meant higher profits, but also those retailers (gasoline) to whom higher gross sales did not mean higher profits (because of the imposition of the federal margin of profits regulation), the statutory classification may have been overinclusive and so subject to an equal protection challenge. It is for these reasons I would grant a rehearing.

      . See appendix to this opinion.

      . LSA-R.S. 47:2110 provides, in pertinent part:
      "A. No court of this state shall issue any process whatsoever to restrain the collection of an ad valorem tax imposed by the state, or by any political subdivision thereof, under authority granted to it by the legislature or by the constitution. Any person resisting the payment of any' amount of tax found due, or the enforcement of any provision of the tax laws in relation thereto, shall pay the amount found due to the officer designated by law for the collection of such tax and shall give the officer notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by. the officer for a period of thirty days. If suit is filed within such time for the recovery of the tax, such amount so segregated shall be further held pending the outcome of the suit. If the taxpayer prevails, the officer shall refund the amount to the taxpayer with interest at the rate of two per centum per annum for the period from the date such funds were received by the officer to the date of such refund."

      . LSA-Const. Art. V, § 5(D) provides:
      “In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional....”
      See Southland Corp. v. Collector of Revenue for Louisiana, 318 So.2d 23 (La., 1975).

      . LSA-C.C. art. 2291 provides:
      “The judicial confession - is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
      “It amounts to full proof against him who has made it.
      “It can not be divided against him.
      “It can not be revoked, unless it be proved to have been made through an error in fact.
      “It can not be revoked on a pretense of an error in law.”

      . The argument that LSA-R.S. 47:1576 provides an exclusive means by which taxpayers may judicially dispute tax assessments is pretermit-ted. The parties here are bound by. their stipulation.

      . 10 C.F.R. Section 212.93 places a ceiling on the maximum cents per gallon profit which can be earned by retail gasoline merchants. Regardless of the price per gallon at which the gasoline is ultimately sold, a retailer cannot earn in profit more than the federally imposed limit. In June, 1979, the price margin was fixed at 15.4 cents a gallon. In December, 1979, it was adjusted to 16.1 cents; in June, 1980, to 16.8 cents, and in December, 1980, to 17.7 cents (Tr. 15).

      . The trial court found it unnecessary to determine whether a 1979 amendment to LSA-R.S. 47:351 affected the constitutionality of Section 353. LSA-R.S. 47:351, as amended, reduces the taxes paid by petroleum wholesalers by fifty percent until such time as federal margin-of-profit controls on gasoline áre no longer applicable to the taxpayer's business. Such federal controls were lifted in February, 1981. (Tr. 15)

      . The retail gasoline merchants offered two witnesses, one of whom the trial court accepted as an expert in gasoline retail merchandising:
      "Q. Now, Mr. Bonnaffons, have you formed an opinion as to the effect of the occupational license tax as it was in effect in 1979 and 1980 on the gasoline retailers?
      “A. Yes, sir, I have.
      "Q. Would you please tell it to the Court?
      "A. Well, I think that it is grossly unfair and it has been discriminatory because we were probably the only category of business who suffered such an increase in an occupational license tax because of actions of foreign countries, for example.* * * ” (emphasis added) (Tr. 23)

      . 10 C.F.R. § 212.93 set a ceiling on the cents per gallon profit that gasoline retailers could earn, regardless of the selling price per gallon. Therefore while the margin of profit allowed gas retailers per gallon under the federal regulations rose almost imperceptibly during 1979 and 1980, the price of that gallon of gasoline (and therefore the gross sales of gasoline retailers) increased over 100 percent.


author: CALOGERO and LEMMON, JJ.,

text:
    STATE of Louisiana ex rel. Ronald S. MONROE v. Ross MAGGIO, Warden, Louisiana State Penitentiary, Angola.
    No. 83-KP-2651.
    Supreme Court of Louisiana.
    Jan. 3, 1984.
   In re: Ronald S. Monroe applying for Stay of Execution, Continuance of Eviden-tiary Hearing and Supervisory Writs of Review to the Criminal District Court, Parish of Orleans, Number 261-647, Section “F”.

Denied.

CALOGERO and LEMMON, JJ.,

would grant the requested stay, grant a continuance of one month and order a full eviden-tiary hearing on the newly discovered evidence issue. The ostensible admission, or confession, by another to the crime (one Stinson) has been uncovered by the defense only recently. That confession, admittedly to a cellmate, was revealed to Pontiac Michigan police in 1980. Because the death penalty is so final, surely no harm would come from continuing this matter one month to allow the defense to produce witnesses from Michigan, and having the trial court evaluate this evidence.


author: DIXON, C.J., and LEMMON, J.,

text:
    STATE of Louisiana v. Daryl SYLVESTER.
    No. 83-K-2340.
    Supreme Court of Louisiana.
    Jan. 6, 1984.
   In Re: DARYL SYLVESTER, applying for writ of Certiorari and/or Review to the Third Circuit Court of Appeal, Number CR83-214; 14th Judicial District Court, Parish of Calcasieu Number 4330-80.

Case Below: 438 So.2d 1277

Denied. The result is correct.

DIXON, C.J., and LEMMON, J.,

concur in the denial. R.S. 15:48 is misquoted and misapplied by the Court of Appeal in Assignment # 1. Nevertheless, the victim’s dangerous character was well established, and the error was harmless.


author: LEMMON, J.,

text:
    STATE of Louisiana v. James E. COTTEN.
    No. 83-K-2341.
    Supreme Court of Louisiana.
    Jan. 6, 1984.
   In Re: James E. Cotten, applying for Certiorari, or Writ of Review, to the Court of Appeal, First Circuit, No. 83-KJ-0012; 19th Judicial District Court, Parish of E. Baton Rouge, No. 12-81-577.

Case Below: 438 So.2d 1156.

Denied.

LEMMON, J.,

concurs. Any detriment to defendant resulting from the state’s failure to produce information about prior arrests does not warrant reversal, in the light of the overwhelming evidence which includes defendant’s confession.


author: CALOGERO, Justice,

text:
    Patricia Discon, Wife of Thomas A. KEHOE v. KEHOE DAY CAMP AND SWIMMING SCHOOL, INC., Catharine E. Kehoe; Thomas A. Kehoe and Mrs. Charles V. Kehoe.
    No. 83-CC-2437.
    Supreme Court of Louisiana.
    Jan. 6, 1984.
   In Re: ESTATE OF MRS. CHARLES Y. KEHOE; CATHARINE E. KEHOE AND THOMAS A. KEHOE applying for Remedial Writ to the 24th Judicial District Court, Parish of Jefferson No. 271-733, from the Fifth Circuit Court of Appeal No. 83-C-743.

Denied. The result is correct.

CALOGERO, J., concurs with reasons.

MARCUS and LEMMON, JJ., would grant the writ.

CALOGERO, Justice,

concurring.

Plaintiffs amended petition and memorandum in an opposition to defendant’s peremptory exceptions and motion for summary judgment sufficiently establish in my view that plaintiff seeks the recovery of a community asset [funds resulting from the sale of properties formerly belonging to Kehoe Day Camp and Swimming School, Inc.] in possession of defendants Catharine, Thomas and Mrs. Charles Y. Kehoe as opposed simply to an accounting for corporate assets by the corporate officers. Furthermore, while I don’t believe that plaintiff can secure a money judgment in her favor against the defendants Catherine and Mrs. Charles Kehoe, nor against her husband Thomas Kehoe [her ultimate entitlement in the pending partition proceedings is to only her share of the community which existed between her and her husband Thomas after all debts or other liabilities are paid], I nonetheless concur in the Court’s denial of this writ application because under La.C.C.P. art. 686 “[e]ither spouse is the proper plaintiff, during the existence of the marital community, to sue to enforce a community right, ...”


author: DIXON, C.J., and CALOGERO, J.,

text:
    STATE of Louisiana v. Anthony M. REIMONENQ.
    No. 83-KP-2453.
    Supreme Court of Louisiana.
    Jan. 6, 1984.
   In Re: ANTHONY M. REIMONENQ applying for a Writ of Certiorari, Prohibition and Mandamus to the Criminal District Court Parish of Orleans No. 260-737, from the 4th Circuit Court of Appeal No. K-1590.

Denied.

DIXON, C.J., and CALOGERO, J.,

would grant the writ. Article 880 requires that the defendant be given credit for time served in custody “prior to the imposition of sentence.” If defendant had been given such credit, his term of probation would have been served before the occurrence which triggered the revocation. The revocation should be set aside and defendant discharged.


author: MARCUS, BLANCHE & LEMMON, JJ.,

text:
    Mary G. CLONEY v. Kenneth G. SMITH, Dwight Brawtigam, XYZ Insurance Company and Aetna Insurance Company.
    No. 83-C-2497.
    Supreme Court of Louisiana.
    Jan. 6, 1984.
   In Re: AETNA INSURANCE COMPANY, applying for Supervisory Writs of Review, Mandamus and Certiorari to the Fifth Circuit Court of Appeal, Number 83-CA-396; 24th Judicial District Court, Parish of Jefferson, Number 252,225.

Case below: 441 So.2d 342.

Denied.

MARCUS, BLANCHE & LEMMON, JJ.,

would grant the writ. Cloney appears to have been at least contributorily negligent. In any event, penalties and attorney fees should not have been allowed. See Hart v. Allstate Ins. Co., 437 So.2d 823 (La.1983).


author: DIXON, C.J., LEMMON, Justice,

text:
    STATE of Louisiana v. Ellis HAYNES.
    No. 83-KK-2596.
    Supreme Court of Louisiana.
    Jan. 6, 1984.
   In Re: ELLIS HAYNES, applying for Writs of Certiorari, and or Review, from the First Circuit Court of Appeal, Parish of East Baton Rouge, Number KW 83 1372, to the Nineteenth Judicial District, Court, Number 8-83-544.

Denied.

LEMMON, J., concurs and assigns reasons.

DIXON, C.J.,

dissents from this action and would grant the writ. C.Cr.P. says in Art. 701, that “Failure to institute prosecution [within 60 days] shall result in release of the defendant...” No “just cause” for the delay has been shown here. There is no reasonable way to interpret this law except to order the release of the defendant. He should be tried, and tried speedily. That is the object of the statute.

CALOGERO and DENNIS, JJ., would grant the writ.

LEMMON, Justice,

concurring in the denial of the writ application.

The trial judge should have set an immediate hearing on the application, which was essentially one for habeas corpus, and should have released defendant unless just cause was shown for the failure to file an indictment or information. La.C.Cr.P. Art. 701. However, the indictment was filed before the November 10 hearing, and defendant was no longer entitled to be released. Any illegal detention between September 9 (the 60th day after arrest) and November 2 (the date of indictment) should be treated as an issue of civil damages.


author: DIXON, Chief Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Rudolph R. SCHOEMANN.
    No. 82-B-2142.
    Supreme Court of Louisiana.
    Jan. 16, 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. Pee’, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Jr., Natchitoches, for relator.
    Matt Greenbaum, New Orleans, for respondent.
   DIXON, Chief Justice.

The Committee on Professional Responsibility of the Louisiana State Bar Association brought this disciplinary proceeding against Rudolph R. Schoemann, a practicing attorney for approximately thirty years. Respondent attorney had pleaded guilty to willful evasion of income taxes in violation of 26 U.S.C. § 7201. He was sentenced in federal court to serve three years, at least one hundred twenty days of which to be in a jail-type institution or treatment type facility.

Mr. Schoemann served seven weeks at the Federal Correctional Institution at Fort Worth, Texas and served seven weeks at the Community Residential Center in New Orleans. The remainder of his sentence was suspended. Upon his release, Mr. Schoemann was placed on three years active probation and was required to make restitution to the government as a special condition of the probation.

The federal grand jury indictment charged Mr. Schoemann with willfully and knowingly attempting to . evade and defeat a large part of the income tax due and owing by him to the United States of America for the calendar years 1974, 1975 and 1976. He filed a false and fraudulent return stating his taxable income for 1974 to be zero when it was actually $50,728.14, and stating his self employment tax to be $261.80, when in fact $7,591.02 was due and owing.

For calendar year 1975, he reported taxable income of $5,969.91 instead of $98,-993.22, the true amount, and reported $154.13 in tax due when he owed $33,-601.00.

For calendar year Í976, he reported a taxable income of zero, with zero in tax owing, when in fact he owed $41,465.14 in taxes on taxable income of $95,099.85.

Mr. Schoemann pleaded guilty to willful evasion of income taxes for the calendar year 1975, the second count of the indictment. He was suspended from federal practice from April, 1982 until June, 1983.

The willful attempt to evade or defeat income tax liability, commonly referred to as income tax evasion, 26 U.S.C. § 7201, is a felony, punishable by a fine of $10,000 ($100,000 for offenses committed after September 3, 1982) and imprisonment for five years. The elements of the crime include a substantial income tax deficiency, willfulness and some affirmative act constituting an attempt to evade or defeat the tax. United States v. Afflerbach, 547 F.2d 522, 524 (10th Cir.1976), cert. den. 429 U.S. 1098, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977).

The Committee on Professional Responsibility has determined that this is a serious offense, and that disciplinary proceedings are warranted. Articles of Incorporation, LSBA, Art. 15, § 8.

The primary purpose of disciplinary proceedings is not to punish the attorney, but rather to maintain appropriate standards of professional conduct in order to safeguard the public, to preserve the integrity of the legal profession, and to deter other attorneys from engaging in violations of the Code of Professional Responsibility. The discipline to be imposed will depend upon the seriousness of the offense and the facts and circumstances peculiar to the case, examined in light of the purpose of disciplinary proceedings and taking into account both aggravating and mitigating circumstances. Louisiana State Bar Association v. Bubert, 421 So.2d 831, 833 (La.1982).

Mr. Schoemann’s actions constituted a violation of the Code of Professional Responsibility. Disciplinary Rule 1-102(A)(4) states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Income tax evasion is a form of dishonesty by which the government is fraudulently deprived of taxes lawfully due it for purposes of the national defense and the public good. Commission of this felony by an attorney tends to lessen public confidence in the legal profession and to encourage disrespect for the law. Louisiana State Bar Association v. O’Halloran, 412 So.2d 523, 526 (La.1982).

Mr. Schoemann freely admits that his acts were intentional and not the result of an oversight. He does, however, offer evidence of mitigating circumstances.

Mr. Schoemann was divorced from his wife in 1969, losing custody of his four children. He experienced deep depression, had serious health problems and sought to commit suicide. He began an association with a woman who had emotional and legal problems and represented her in her legal matters for little compensation. His practice suffered as a consequence.

Mr. Schoemann claims that his tax evasion was motivated by two factors. He felt unfairly treated in an earlier IRS audit, and sought to retaliate against the IRS. Secondly, believing that his problems would lead to his death, he evaded his income taxes to place money in a trust fund that would provide for his children after his death.

Mr. Schoemann's conviction did not result from his practice as an attorney, nor were any of his clients or their funds involved. Before these events, Mr. Schoe-mann enjoyed a very good reputation in the legal community. Since then, he has expressed his regret and has taken steps to restore his reputation. He has made arrangements to make restitution to the government, and has hired a certified public accountant to assist him. He has obtained psychiatric treatment for his emotional problems.

The commissioner assigned- to conduct the hearing in this matter recommended that Mr. Schoemann be placed on probation for one year, and that the petition for disciplinary proceedings be dismissed after that year if he showed substantial progress in resolving his personal, physical, financial and psychological problems.

The Committee on Professional Responsibility rejected that recommendation, noting that Mr. Schoemann’s personal tragedies do not obviate the necessity for discipline, given the seriousness of this offense. We agree with the committee that Mr. Schoe-mann should be suspended from the practice of law for one year for his violation of DR 1-102 and for his willful tax evasion. Mr. Schoemann committed a serious breach of the law and of the disciplinary rules that govern the conduct of this state’s attorneys. Such behavior should not go unpunished. Nevertheless, there are strong mitigating factors present which should moderate the punishment.

It is therefore ordered that respondent Rudolph R. Schoemann be suspended from the practice of law for a period of one year, and be cast with the cost of these proceedings.