S. R. DEWITT, JR. AND RHODELL MURRAY, APPELLANTS,
v.
ROLLIN W. ZIMMERMAN, AS SHERIFF OF BREVARD COUNTY, STATE OF FLORIDA, APPELLEE
DAUKSCH, Judge.
On appeal is an order dismissing a complaint. At the hearing on the motion to dismiss the complaint the judge heard evidence which led him to believe the plaintiff DeWitt was not entitled to relief as a matter of law. Perhaps the trial judge is correct about his legal conclusion but we must reverse because it is improper to consider anything but the complaint itself when deciding a motion to dismiss the complaint for failure to state a cause of action. Reed v. Sampson, 349 So. 2d 684 (Fla. 4th DCA 1977). The order dismissing the DeWitt complaint is reversed and the trial court is affirmed as to all other points on appeal.
REVERSED in part, AFFIRMED in part.
BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur.
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Holland v. Anheuser Busch, Inc., 643 So. 2d 621 (Fla. 2d DCA 1994)…udgment in which the court may rely on facts adduced in depositions, affidavits, or other proofs.”) Although the trial court may ultimately be correct, it was inappropriate to make such a legal conclusion on a motion to dismiss. DeWitt v. Zimmerman, 366 So. 2d 46 (Fla. 4th DCA 1978). Accord Cherry v. Pirrello, 324 So. 2d 158 (Fla. 3d DCA 1972). We have not overlooked Anheuser’s arguments that we should treat its motion to dismiss as a mislabeled motion for summary judgment or that Holland acquiesced in the…
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Goodson v. State, 400 So. 2d 791 (Fla. 2d DCA 1981)…rial court did not furnish advance notice that restitution may be imposed as a condition of probation. To the extent that our decision may be inconsistent with statements made in Stokes v. State, 377 So. 2d 766 (Fla. 2d DCA 1979); Kroenke v. State, 366 So. 2d 46 (Fla. 2d DCA 1979); DiOrio v. State, 359 So. 2d 45 (Fla. 2d DCA 1978); Latti v. State, 364 So. 2d 828 (Fla. 2d DCA 1978), we recede from such statements. Accordingly, we affirm the order placing the appellant on probation with the special condition…
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E. Y. v. State, 390 So. 2d 776 (Fla. 3d DCA 1980)…restitution order as well as an opportunity to be heard as to the amount. Additionally, the authority to determine the amount cannot be delegated to the probationer’s supervisor. McClure v, State, 371 So. 2d 196 (Fla. 2d DCA 1979); Kroenke v. State, 366 So. 2d 46 (Fla. 2d DCA 1978), cert. denied, 374 So. 2d 99 (Fla.1979). For the foregoing reasons, the appellant’s adjudication of delinquency is affirmed; the order delegating judicial authority to the juvenile’s counselor to determine the amount of restituti…
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- Reed v. Sampson, 349 So. 2d 684 (Fla. 4th DCA 1977)