author: GRIMES, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Wayne M. STEWART, Christopher N. Girard, John A. Tudor, Appellees.
    No. 76-140.
    District Court of Appeal of Florida, Second District.
    May 10, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    John T. Cook, South Pasadena, for appel-lee Tudor.

      Philip J. Padovano of Ruiz & Padovano, St. Petersburg, for appellee Girard.
    J. Richard Rahter, St. Petersburg, for appellee Stewart.
   GRIMES, Acting Chief Judge.

This appeal turns upon the interpretation of Patterson v. State, 313 So.2d 712 (Fla.1975).

The appellees were charged in circuit court with selling marijuana. Upon the authority of Patterson, the court dismissed the information as being insufficient to charge a felony because it failed to negate the elements of the marijuana misdemeanor offense described by Section 893.13(1)(f), Florida Statutes (1975).

In Patterson the defendant was charged with and convicted of the sale of marijuana. The conviction was affirmed on appeal. The defendant then filed a motion to correct and reduce the sentence arguing that the state had failed to charge him with the commission of a felony so that a one year sentence for a misdemeanor was the maximum penalty allowed. The motion was denied, and this ruling was also affirmed. On certiorari from the latter decision, the supreme court agreed with the defendant’s position and remanded for resentencing for the conviction of a misdemeanor.

According to the stipulated facts in Patterson, there was no evidence of a prior narcotics conviction, there was less than five grams involved and there was no consideration given for the marijuana. Therefore, under Section 893.13(l)(f) it was proper for the defendant to be convicted of no more than a misdemeanor. The difficulty with Patterson as it pertains to our review in the instant case lies in the following statement of the supreme court:

It is Petitioner’s view, and we agree, that, sub judice, the verdict of guilty only of “SALE OF DANGEROUS DRUG AS CHARGED IN THE 2ND COUNT”, is insufficient to show that the jury found Petitioner guilty of a felony. The second count of the information specifically charges that Petitioner
“ . . . on the 11th day of May, 1972, in the County of Duval and the State of Florida, did then and there unlawfully and knowingly sell and dispense a certain dangerous drug, to-wit: Cannabis, commonly known as Marijuana, contrary to the provisions of Section 404.02(1), Florida Statutes.”
We have carefully examined the briefs and the record in the case and have heard oral argument by the parties. We conclude that the Petitioner is correct in his argument (1) that the information was insufficient to charge a felony since it failed to allege (a) that he had been previously convicted of a violation of the Drug Abuse Law, or (b) that the delivery was for a consideration, or (c) that the amount of marijuana delivered exceeded five grams; and (2) that under these circumstances, the case should be remanded for sentencing under the misdemeanor provision of the statute.

In essence, the supreme court has said that in order to charge the felony sale of marijuana not only must there be a sale alleged but the information must also allege that the sale was not without consideration. Yet, how can it ever be that a sale could occur in the absence of consideration?

The state attempts to distinguish Patterson on the basis that the charge in that case was made under Section 404.02(1), Florida Statutes (1971), which prohibited only the delivery of marijuana. This contention falls short because the word “delivery” was defined in Section 404.01(4), Florida Statutes (1971), to mean “selling, dispensing, giving away, leaving with or supplying in any other manner” and the Patterson information specifically alleged a sale.

The marijuana cases cited in Patterson are distinguishable because in those cases the informations did not allege a sale. But, try as we will, we cannot distinguish the holding of Patterson, and we are bound to follow it under the dictates of Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Because this point is likely to arise again and because it occurs to us that the supreme court may wish to revisit the language of its opinion in Patterson, we have decided to certify as a question of great public interest the following:

IN ORDER TO CHARGE A FELONY, MUST AN INFORMATION ALLEGING THE SALE OF MARIJUANA ALSO ALLEGE THAT (a) THE DEFENDANT HAS BEEN PREVIOUSLY CONVICTED OF A VIOLATION OF THE DRUG ABUSE LAW, OR (b) THE DELIVERY WAS FOR A CONSIDERATION, OR (c) THE AMOUNT OF MARIJUANA INVOLVED EXCEEDED FIVE GRAMS?

AFFIRMED.

OTT and RYDER, JJ., concur.

      . The information referred only to Section 893.-13, Florida Statutes (1975), but we must assume the charge was laid under Section 893.-13(l)(a) which reads in part:
      (l)(a) Except as authorized by this chapter and chapter 500, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. .

      . The pertinent portion of this section reads: (f) If the first offense is the possession or delivery without consideration of not more than 5 grams of cannabis, that person shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 and s. 775.083. .

      . Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972), one of the cases upon which the supreme court’s conflict certiorari jurisdiction in Patterson was predicated, contained the following statement in a footnote:
      Additionally, we are aware that it is a felony to “sell,” i. e., deliver for a consideration, any amount of cannabis, .


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    OAKWOOD MANOR, INC., a Florida Corporation, Appellant, v. Joyce ECK, James A. Spanos and John Meshad, as last officers, directors and trustees of the assets of S & E Enterprises, Inc., a dissolved corporation of the State of Florida, and Interstate Fire Insurance Company, a corporation, Appellees.
    No. 77-1743.
    District Court of Appeal of Florida, Second District.
    May 10, 1978.

      Clyde H. Wilson of Wilson & Wilson, Chartered, Sarasota, for appellant.
    Gerald C. Surfus of Stinnett, Surfus & Martin, P. A., Sarasota, for appellees.
   GRIMES, Judge.

This is an appeal from a final judgment denying a claim for damages for the improper issuance of a temporary injunction.

On January 28, 1971, S & E Enterprises, Inc. (S & E) sued to enjoin appellant (Oak-wood) from breaching an oral contract permitting S & E to sell mobile homes at Oakwood’s trailer park and to recover damages. The following day S & E obtained a temporary injunction without notice enjoining Oakwood from interfering with S & E’s sale of mobile homes on Oakwood’s property. S & E posted a $10,000 injunction bond to cover all costs, damages and attorneys’ fees sustained by Oakwood as a consequence of S & E “improperly suing out the injunction.” Oakwood filed motions to dismiss the complaint, to dissolve the injunction, and to restore the parties to the status quo ante.

Oakwood’s motion to dissolve the injunction and motion for restoration were called up for hearing on February 5,1971. Pursuant to stipulation of the parties, the court entered an order dated February 9, 1971, directing S & E to vacate certain offices on Oakwood’s property, to stop bringing any more mobile homes onto Oakwood’s property, to move a certain trailer from one lot to another, and to turn over to Oakwood all office and recreation building keys in its possession. The court also made the temporary injunction reciprocal by enjoining S & E from interfering with the operation of Oakwood’s trailer park and Oakwood’s rental and sale of mobile homes thereon.

On October 4, 1971, S & E filed a notice of voluntary dismissal, but on October 8, 1971, Oakwood filed a motion asserting that the voluntary dismissal was unauthorized under Fla.R.Civ.P. 1.420 because S & E’s $10,000 bond had been deposited with the court. The court granted Oakwood’s motion and reinstated the suit.

On August 31, 1972, the court granted Oakwood’s motion to dismiss the complaint with leave to amend within twenty days. When S & E failed to file an amended complaint within the requisite time, Oak-wood filed a new motion to dismiss. On November 26, 1973, the court entered final judgment, reciting that since no amendment or further pleading had been filed by S & E “this action be and the same is dismissed and that Plaintiff take nothing by this action and that Defendant go hence without day and recover its costs against Plaintiff to be hereinafter taxed by the Court.”

On February 19, 1974, Oakwood filed a complaint seeking to recover damages on the injunction bond. A bench trial was held on August 29, 1977. The court concluded the trial with the following observation:

There is in this case, of course, the time of the hearing and the order that Judge Silvertooth signed, it appeared that the parties had agreed to most everything in this particular action, keeping the injunction, having an injunction in effect on the other side as well. I understand that there have been all of these other cases involved, apparently; but the Court really doesn’t find that it was improperly done.
I would find for the Defendants in this particular case. I understand that there were a lot of other things involved and all that, but in this particular ease, why, I just don’t think that it is improper.

The court appears to have concluded that Oakwood could not now claim damages because its counsel had stipulated that the injunction against Oakwood should remain in effect. We believe this is an erroneous interpretation of the order of February 9, 1971, which specifically stated that the court was not passing upon the merits of the motion to dissolve the injunction. The stipulated order did not rescind the- temporary injunction against Oakwood, but simply placed the injunction upon a reciprocal basis and required S & E to take certain mitigating actions with respect to its right to sell mobile homes on Oakwood’s property. The stipulation and the order thereon cannot be construed as an agreement by Oakwood to permit S & E to use its property or as an admission by Oakwood that S & E was entitled to the injunction.

Oakwood argues that rather than remanding for a determination of whether the temporary injunction was improperly obtained, we should direct the entry of a judgment for Oakwood because the original injunction suit was ultimately dismissed. However, the attorney who represented S & E in the injunction suit testified that he first sought to voluntarily dismiss his suit, and then allowed it to be dismissed for failure to amend, because by that time all of S & E’s mobile homes had been sold and S & E had suffered no damages. Admittedly, the dismissal for failure to amend constituted an adjudication of the suit on the merits under Fla.R.Civ.P. 1.420(b), but this does not necessarily mean that the temporary injunction was improperly issued in the first place. Obviously, there may be circumstances under which a temporary injunction is properly obtained but because it has accomplished its purpose, or due to changed conditions beyond the control of the plaintiff, the injunction is later dissolved as moot. Thus, in Scott v. Frank, 121 Iowa 218, 96 N.W. 764, 765 (1903), the court said:

To sustain an action for damages it must be made to appear that such injunction was wrongful in its inception, or at least was continued owing to some wrong on the part of plaintiff. If rightfully awarded, but afterwards properly dissolved because of matters done or arising subsequent to its issuance, there can be no recovery of damages.

See also M. Blatt Co. v. Southwell, 259 N.C. 468, 130 S.E.2d 859 (1963); Mengel Co. v. Local 4-443, International Woodworkers, 220 Miss. 317, 70 So.2d 613 (1954).

We have not overlooked National Surety Co. v. Willys-Overland, Inc., 103 Fla. 738, 740, 138 So. 24, 25 (Fla.1931), in which our Supreme Court said:

The general rule in this state, as is apparently true elsewhere, where the rules are similar, is that a dissolution of an injunction upon the merits operates as an adjudication that it was improperly issued.

In that case the temporary injunction had been judicially determined to have been erroneously issued from the beginning. It may be that the dismissal of an injunction suit, without more, would constitute a pri-ma facie showing of an adjudication that the temporary injunction obtained therein had been improperly issued. Cf. Wood, Wire & Metal Lathers, International Local No. 216 v. Brown & Root, Inc., 157 F.Supp. 342 (S.D.Ala.1957). Here, however, it can be safely said that in dismissing the suit the court was not purporting to pass upon the propriety of the temporary injunction.

The judgment is reversed, and the case is remanded for a determination of whether the temporary injunction was improperly obtained, and if so, for the award of damages.

BOARDMAN, C. J., and HOBSON, J., concur.


author: RYDER, Judge.

text:
    Mae ROBERTS, Petitioner, v. Patricia JARDINE, Respondent.
    No. 78-474.
    District Court of Appeal of Florida, Second District.
    May 10, 1978.
    W. Donald Cox of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for petitioner.
    E. Clinch Kavanaugh, III of Smythe & Kavanaugh, Bradenton, for respondent.
   RYDER, Judge.

Petitioner seeks review of two orders of the trial court which compel discovery, arguing the orders are in violation of her Fifth Amendment right against self-incrimination. We agree with her in part and grant certiorari, reversing one order and affirming the other.

At the bottom of this controversy is respondent’s claim that petitioner had made a tape recording of a certain telephone conversation between the parties without respondent’s knowledge. Mr. William J. Terry, petitioner’s attorney in a previous action, played this recording during a deposition of respondent in said action in which petitioner was the plaintiff and the respondent was a witness. Upon learning of the existence of the tape, respondent filed a civil action for damages alleging that petitioner had intercepted their telephone conversation by means of an electronic or mechanical device in violation of Section 934.-10, Florida Statutes (1977).

Thereafter, respondent served interrogatories on petitioner inquiring into the circumstances surrounding the alleged interception ' of the telephone call. Petitioner refused to answer these interrogatories on the ground that any answer she gave might incriminate her.

Respondent also served petitioner with a request for documents and other related things in which she specifically asked for a copy of the tape recording referred to above as well as any other recordings of conversations between respondent, petitioner and/or William J. Terry. Petitioner also did not comply with this request.

Subsequently, on motion of respondent, the trial court entered two orders compelling discovery. In the first order the court required petitioner to answer interrogatories and stated that if she failed to answer the court might enter a default judgment. In the second order the court directed peti-. tioner to comply with the request for discovery or suffer a default judgment.

We think that the trial court erred in entering its order compelling petitioner to answer interrogatories on pain of the entry of a default judgment. As petitioner correctly points out, the interception of telephone conversations by electronic or mechanical means carries a criminal as well as a civil penalty. Section 934.03, Florida Statutes (1977). Accordingly, the court cannot compel petitioner to answer respondent’s interrogatories as the answers relating to her alleged interception of the telephone conversation might incriminate her. U.S.Const. Amend. V; Article I, Section 9, Florida Constitution. Moreover, the court cannot punish her for exercising her privilege against self-incrimination by entering a default judgment. Of course, for failure to answer, the court may impose less severe sanctions such as striking her testimony. Annest v. Annest, 49 Wash.2d 62, 298 P.2d 483 (1956). See generally Stockham v. Stockham, 159 So.2d 481 (Fla. 2d DCA 1963), aff’d, 168 So.2d 320 (Fla.1964); Penn Communications Specialties, Inc. v. Hess, 65 F.R.D. 510 (E.D.Pa.1975).

We do not, however, find any error in the court’s second order as it relates to the production of the alleged tape recording of the conversation between petitioner and respondent. Petitioner has waived any privilege she might have with regard to the contents of that tape because she published those contents by permitting the playing of the tape during the deposition of respondent. See Raffield v. State, 333 So.2d 534 (Fla. 1st DCA 1976).

The correctness of the court’s second order as it concerns other recordings which might be in petitioner’s possession is not considered here. Petitioner has not represented to us that any such recordings exist, thus, we see no need to proceed further.

REVERSED in part, AFFIRMED in part and REMANDED for further proceedings consistent with this opinion.

BOARDMAN, C. J., and HOBSON, J., concur.


author: SMITH, Judge.

text:
    CITY OF PENSACOLA, Florida, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION, Respondent.
    No. HH-88.
    District Court of Appeal of Florida, First District.
    May 11, 1978.

      John-Edward Alley and Richard R. Parker of Alley & Alley, P.A., Tampa, for petitioner.
    I. Jeffrey Pheterson, Staff Atty. and William E. Powers, Jr., Gen. Counsel, Tallahassee, for respondent.
   SMITH, Judge.

The provisions and procedures of the local option ordinances of the City of Pensacola were previously approved by the Public Employees Relations Commission (PERC) as being substantially equivalent to those set forth in Chapter 447, Part II, Florida Statutes (1975). Pensacola now petitions for review of a PERC order directing Pensacola to amend its local option ordinances to bring its provisions and procedures into substantial compliance with amendments to Chapter 447 by Chapter 77-343, Laws of Florida. PERC has authority to enter an order of the character complained of, Section 447.603, Florida Statutes (1977). The order did not perform rulemaking functions in violation of Section 120.54, Florida Statutes (1977), but was subject to the requirements of Section 120.57(2), applicable to an agency determining the substantial interests of a party in proceedings not involving a disputed issue of material fact. See General Development Corp. v. Div. of State Planning, Dep’t of Admin., 353 So.2d 1199, 1209 et seq. (Fla. 1st DCA 1978). Inasmuch as the only issue presented by Pensacola is one of law, which we here decide, PERC’s failure in this instance to comply with certain requirements of Section 120.57(2) was not a material error impairing the fairness of the proceedings or the correctness of the action taken by the agency. Section 120.-68(8).

The prayer of the petition for review is DENIED.

BOYER, Acting C. J., and BLACK, SUSAN, Associate Judge, concur.


author: PER CURIAM.

text:
    John M. BICKERSTAFF, Appellant, v. Hope E. BICKERSTAFF, Appellee.
    No. HH-319.
    District Court of Appeal of Florida, First District.
    May 11, 1978.
    Rehearing Denied June 22, 1978.

      D. Chanslor Howell, of Howell & Deas, P. A., Jacksonville, for appellant.
    Harold B. Haimowitz, P. A., Jacksonville, for appellee.
   PER CURIAM.

Husband appeals here the trial court’s failure to grant him a special equity in a house owned by the parties as tenants by the entireties in a dissolution proceeding. We find merit in his argument and reverse. We are cognizant of the Florida Supreme Court’s pronouncement in Ball v. Ball, 335 So.2d 5 (Fla.1976), that generally “record title speaks for itself” in such situations and the property becomes a tenancy in common upon dissolution. However, we are also aware of other language in that opinion holding that a special equity is created in property “by an unrebutted showing . that all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship.” The evidence showed clearly in this case that the husband furnished the entire down payment for the house in question from funds he had inherited separately from his mother. From there on the house was self-supporting as a rental property and wife made absolutely no financial contributions to it. Husband paid all of the mortgage payments, property taxes, insurance premiums and repair costs. He testified that he had played no part in the preparation of the deed which had titled the property in both parties’ names and had not intended a gift of the property to the wife. Wife testified that it had always been her understanding that husband had intended a gift to her when he purchased the property. But as this court recently stated in Merrill v. Merrill, 357 So.2d 792 (Fla. 1st DCA 1978): “We cannot read Ball v. Ball ... as holding that a word or two of testimony by the recipient spouse, to the effect that the other intended a gift, obliterates the special equity resulting from an unrebutted showing that the grantor spouse acquired the property from sources entirely independent of the marriage.” We do not read the court’s statement in Merrill that the question of donative intent is for the chancellor as binding us to a trial court’s ruling where as here there is no credible evidence of such an intent below. Husband was entitled to the special equity under the evidence presented here.

Wife’s cross appeal disputing the adequacy of a $5,000 attorney’s fee award which her attorney had already accepted is without merit.

The judgment appealed by the husband is reversed. The judgment cross appealed by the wife is affirmed.

■ Wife’s motion for appellate attorney’s fees is denied.

MILLS, Acting C. J., and MELVIN and ERVIN, JJ., concur.


text:
    Bill ARFLIN, Petitioner, v. STATE of Florida, Respondent.
    No. II-347.
    District Court of Appeal of Florida, First District.
    May 11, 1978.
    James L. Harrison, of Harrison & Snyder, Jacksonville, for petitioner.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petition for writ of certiorari is DENIED.

MILLS, Acting C. J., and ERVIN and MELVIN, JJ., concur.


author: BOYER, Judge.

text:
    William David EPLEY and Pauline Epley, husband and wife, Appellants, v. WASHINGTON COUNTY, a political subdivision of the State of Florida, and State of Florida Department of Transportation, Appellees.
    No. GG-164.
    District Court of Appeal of Florida, First District.
    May 12, 1978.
    W. Paul Thompson of Thompson, Adkin-son & Beasley, Defuniak Springs, for appellants.
    Gerald Holley, Chipley and Ronald W. Brooks, Tallahassee, for appellees.
   BOYER, Judge.

Appellants Epley filed a complaint in the Circuit Court of Washington County naming Washington County and the Department of Transportation as parties defendant, alleging that certain culverts had been improperly maintained and that as a direct and proximate result of the negligent maintenance by the defendants water was caused to back up onto Epleys’ property and damage their home located thereon. The Department of Transportation filed a motion to dismiss asserting sovereign immunity and the failure to allege the existence of a duty owed by the Department of Transportation to Epley. Washington County filed a motion to dismiss on the ground that the complaint failed to allege compliance with Florida Statute 768.28(6) which provides in material part that:

“An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the department of insurance, within three years after such claim accrues and the department of insurance or the appropriate agency denies the claim in writing. . . ”

On July 13, 1976 the Circuit Judge entered an order reciting that the case had come on to be heard on the motions of both defendants “and it appearing that the complaint is one sounding in tort and has failed to allege compliance with the provisions of Florida Statute 768.28(6), it is, thereupon, ordered and adjudged that said complaint filed herein be, and the same is, hereby dismissed with leave, however, to amend within twenty days from July 13, 1976.”

The Epleys apparently thereupon undertook to comply with F.S. 768.28(6) but filed no amended complaint. Instead, their attorney filed a notice of hearing on March 25,1977, calling up for hearing on April 26, 1977, the motions to dismiss which had been filed by the two defendants, apparently intending to adduce at said hearing evidence of compliance with the above mentioned statute.

On April 29, 1977 the trial judge entered the order here appealed, reciting as follows:

“THIS MATTER first came before the Court on July 13, 1976, on motions to dismiss the Plaintiffs’ Complaint, filed by the Defendants, State of Florida Department of Transportation and Washington County, a subdivision of the State of Florida. After having heard the arguments of counsel, and being duly advised in the premises, this Court found the Plaintiffs had failed to allege compliance with the provisions of Florida Statutes 768.28(6), and entered an Order dismissing the Complaint, but granting Plaintiffs leave to amend within twenty days from July 13, 1976.
“The Defendants’ motions to dismiss (which were directed to the original Complaint) were again called up by Plaintiffs for hearing on April 26, 1977. The matter came on for hearing as set, and Defendants moved to dismiss or quash the notice of hearing, urging that the matter was no longer before the Court and that Plaintiffs’ action was barred by their failure to file a timely appeal from the Order of July 13, 1977, or to file an Amended Complaint within twenty days in compliance with such Order. Plaintiffs took the position that although no Amended Complaint had been filed, the requirements of Florida Statutes 768.28(6) had been met by filing written notice of claim with the Florida Department of Transportation, in August of 1976.
“Having considered the Court file, as well as the respective arguments of counsel, the Court is duly advised in the premises and finds as follows:
“1. On July 13, 1976, the Court entered an Order dismissing Plaintiffs’ Complaint, with leave to amend within twenty days.
“2. As of April 26,1977, Plaintiffs had failed to submit an Amended Complaint in accordance with the provisions of the above-referenced Order.
“3. Rule 3.2(b) of the Florida Appellate Rules requires that appeals from:
‘. . . final decisions, orders, judgments or decrees shall be commenced within 30 days of the final decision, order, judgment or decree appealed from, unless some shorter period of time is specifically provided by these rules.’
“4. This Court’s Order dismissing the Complaint on July 13, 1977, constituted an appealable final judgment, Snyder v. Gulf American Corporation, 224 So.2d 405, 406 (2nd D.C.A.1969), from which no appeal was taken.
“IT IS HEREBY ORDERED AND ADJUDGED AS FOLLOWS:
“By virtue of Plaintiffs’ failure to appeal this Court’s Order dismissing their Complaint, or to file an amendment in accordance with the provisions of such Order, said dismissal became final upon expiration of the applicable time periods and the matter is no longer before the Court. Plaintiffs’ notice bringing this matter on for hearing be and the same is hereby quashed.”

The issue to be resolved is whether nor not an order dismissing a complaint with right to amend during a specific period constitutes a final appealable order at the expiration of that period if no amendment is timely filed. Snyder v. Gulf American Corporation, cited and relied upon by the trial judge, is not applicable. In that case the trial judge, on motion to dismiss, dismissed a second amended complaint with prejudice. No amendment was allowed nor was one filed. The plaintiff filed a motion for rehearing within ten days from the date of the order. The issue in that case, as stated by the court, was whether a motion for rehearing of an order dismissing a complaint with prejudice tolls the time for filing a notice of appeal. The court held that the dismissal of a complaint with prejudice was a final appealable order and that a motion for rehearing filed within ten days thereafter tolled the time for appeal. As already recited, the order of dismissal sub judice was not with prejudice, but with privilege to amend. In that regard it is similar to the factual situation which existed in Hancock v. Piper, 186 So.2d 489 (Fla.1966), which we find to be controlling.

In the Hancock case the complaint was dismissed with leave to amend within twenty days. No amendment was filed within that period of time. When the amended complaint was finally filed the defendants moved to dismiss for lack of jurisdiction, the twenty days having elapsed. Upon that, motion being denied they took an interlocutory appeal to the District Court which affirmed. Conflict certiorari was granted by the Supreme Court. In a well reasoned opinion that court held:

“ * * * that an order dismissing a cause but granting additional time in which to file an amended complaint is nothing more than an interlocutory order and that the court still has control of the litigation.
“Judged by this standard the order sub judice was not a final order, and a formal judgment after the termination of the twenty-day period was required to make it so.” (186 So.2d at page 490)

Applying the above quoted holding to the facts sub judice, the order dismissing the complaint but granting additional time in which to file an amended complaint was nothing more than an interlocutory order and the court still had control of the litigation. The learned trial judge therefore erred in holding that the “said dismissal became final upon expiration of the applicable time periods and the matter is no longer before the court” and in quashing the notice of hearing.

The propriety of abating an action after complaint is filed while complying with F.S. 768.28(6), or proving compliance by evidence rather than pleading, are not issues which were raised by the parties, therefore they are not addressed by us.

' Reversed and remanded for further proceedings not inconsistent herewith.

McCORD, C. J., and MELVIN, J., concur.


text:
    Kenneth GONTERMAN, Appellant, v. STATE of Florida, Appellee.
    No. II-23.
    District Court of Appeal of Florida, First District.
    May 12, 1978.
    James W. Reilley and Zelma L. Berger, of counsel, of Reilley, Bell & Wineberg, Chicago, Ill., and Marlin M. Feagle, Lake City, of counsel, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Did the trial court err in refusing to suppress marijuana found in appellant’s vehicle during a search at a Florida agricultural inspection station? We conclude it did and reverse.

Appellant, driving north on 1-75 in a camper-truck, failed to stop at the Hamilton County inspection station. The agriculture inspector on duty radioed this information to another inspector, who stopped appellant about three miles north of the station and asked him if he could “take a look inside” the truck. Appellant agreed, went to the rear of the truck and opened the window. The inspector looked inside the vehicle with his flashlight, saw what appeared to be a mattress and a box, then asked appellant if he could look inside the box and appellant answered, “I’d rather not.” The inspector then told appellant he would have to go back to the station for further inspection. Appellant testified that at the station the inspector arrested him for bypassing the station and then repeatedly asked him (at least six times) for permission to search the vehicle. The inspector stated that he only asked twice, but admitted that he had told appellant “we could search the vehicle with or without a warrant, but we’d rather get his permission, if at all possible.” Appellant finally gave what the inspector interpreted as consent, and the search revealing the marijuana was performed. Appellant later conditionally pled nolo conten-dere to the charge after his suppression motion was denied.

Appellant’s consent was not voluntary. It is clear that appellant initially consented only to a limited “flashlight” search of the vehicle. The inspector realized that the scope of the consent was so limited; otherwise he would not have asked for additional permission to search. There was no contraband within plain view which would have justified further intrusion. Nor did the inspector have probable cause to believe, as he admitted during the hearing, that any of the articles seen within the truck contained illegal drugs. The “consent” obtained at the station was clearly involuntary under this court’s rulings in Sarga v. State, 322 So.2d 592 (Fla. 1st DCA 1975), and Powell v. State, 332 So.2d 105 (Fla. 1st DCA 1976).

Here the appellant acquiesced to the search only after the inspector (1) arrested him for bypassing the station, (2) stated that he had the authority to search with or without appellant’s permission (which authority he did not have in the absence of a warrant, see Powell, supra, and Section 570.15(1)(b), Florida Statutes (1975)) and (3) made repeated requests for the consent. State v. Drake, 343 So.2d 1336 (Fla. 1st DCA 1977), is not to the contrary because there the inspector had not expressed an intention to obtain a warrant if consent were refused.

REVERSED.

MILLS, Acting C. J., and ERVIN and MELVIN, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Peter Horace BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 77-95.
    District Court of Appeal of Florida, Second District.
    May 12, 1978.

      Jack 0. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and William I. Munsey, Jr. and Mary Jo Gallay, Asst. Attys. Gen., Tampa, for appel-lee.
   HOBSON, Acting Chief Judge.

In this appeal we are presented with the issue of whether the legal removal of suspects from an automobile renders illegal a protective search which would have been proper had the suspects remained in the vehicle. Under the circumstances and reasoning enunciated below we hold this to be a valid protective search.

Based upon the testimony elicited at the hearing on the motion to suppress, the trial court was entitled to find the following facts:

Appellant and a man named Thomas drove their borrowed Cadillac automobile into the parking lot of a convenience store at 8:00 at night. They sat in the car for approximately one hour. Thomas entered the store, made a small purchase, and returned to the vehicle. The men continued to sit in the car. Fearing that a robbery may occur, the cashier in the store had the sheriff’s department notified. Deputies Harrison and Smith, and Police Chief Miller responded to the call.

When Chief Miller’s marked cruiser entered the parking lot, appellant quickly exited his vehicle and nervously ran to the cruiser. He informed Chief Miller that the Cadillac would not start. Appellant returned to the Cadillac with Chief Miller to attempt to start the vehicle. Meanwhile, Deputy Harrison interviewed the cashier. The Cadillac started, but stalled when appellant removed his foot from the accelerator. Harrison joined Chief Miller at the driver’s door of the Cadillac. Thomas appeared to be extremely nervous. As appellant again exited the Cadillac, the officers noticed a pronounced bulge in the waistline of Thomas’ jacket. Fearing that the bulge may have been caused by a pistol, the officers commanded Thomas to remain still. As Harrison approached the passenger side of the vehicle in which Thomas was sitting, Thomas quickly shoved his hand under the armrest which divided the front seats. Harrison had Thomas step out of the automobile. Harrison patted down the outside of Thomas’ clothing and discovered that the bulge was not caused by a weapon. Harrison reached under the armrest and retrieved a plastic bag containing tinfoil packets of heroin. The two men were placed under arrest and the operator of the Cadillac, appellant, consented to a full search of the vehicle. Appellant instructed the officers in opening the broken trunk latch. This search of the car’s trunk produced a large amount of heroin and other incriminating evidence.

The state does not contend that, at the time of the search under the armrest, the officers had probable cause to arrest the suspects. Hence, this search cannot be justified as a search incident to an arrest. The state does not contend that, at the time of this search, the officers had probable cause to believe that contraband or seizable evidence was in the vehicle. Hence, this search cannot be justified as a probable cause search. The state does not contend that, at the time of the search under the armrest, the officers had consent to search. Hence, this search cannot be justified as a consent search. The state does contend that the search was justified as a reasonable protective search. In ruling on the merits of this contention, we must determine 1) whether a protective search was warranted under the circumstances; and 2) whether the search exceeded the permissible scope of a protective search.

We first consider whether a protective search was warranted. Searches for weapons which may be used to assault an investigating police officer or other persons came under the careful scrutiny of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). There the Court recognized that, consistent with Fourth Amendment principles, “a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for the purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Id. 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906, 907. Since a “policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect,” id., the police officer may conduct a limited protective search for concealed weapons when “an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others.” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).

The Court described the appropriate circumstances warranting an investigative stop and protective search as “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety.” Terry v. Ohio, supra, 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911. The police officer’s conclusions must be based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably indicate that criminal activity is afoot and that the suspects) are armed and dangerous. Terry v. Ohio, supra.

In the case at bar, we find that the investigation and a protective search were warranted by the circumstances. Armed robberies at night of convenience stores have become quite common occurrences. The officers were summoned at night to investigate a potential robbery of a convenience store. At the scene, the officers were informed that the two suspects had been sitting in the car for a considerable length of time, and for no apparent reason. When appellant saw the police cruiser arrive, he hastened to the cruiser and attempted to explain the suspects’ activity. This explanation came under suspicion when their car started. Both suspects, especially Thomas, seemed extremely nervous. Both police officers noted a pronounced bulge about the waistline of the jacket worn by Thomas. The officers feared that the bulge was caused by a weapon. When the police officers commanded Thomas to remain still, Thomas shoved his hand under the armrest as if to conceal or retrieve something.

These observations led the police officers to reasonably conclude, in light of their experience, that criminal activity was. afoot and that the suspects with whom the officers were dealing may have been armed and dangerous. Throughout the course of the investigation, the officers were known to the suspects to be policemen. The officers’ reasonable inquiries, and the initial stages of the encounter, did nothing to dispel the officers’ reasonable fear for their own safety and the safety of others. They therefore were entitled, for their own safety and the safety of others, to conduct a carefully limited search to discover weapons which might be used in an assault against them. Terry v. Ohio, supra, 392 U.S. at 30, 88 S.Ct. at 1885, 20 L.Ed.2d at 911.

We must now determine whether the search extended beyond the scope of a protective search. In recognizing the legality of protective searches without probable cause, the Supreme Court in Terry pointed out that the “sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” 392 U.S. at 29, 88 S.Ct. at 1884, 20 L.Ed.2d at 911. The sanction imposed for improperly conducted protective searches is that the “evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation.” Id., 392 U.S. at 29, 88 S.Ct. at 1884, 20 L.Ed.2d at 910.

In Terry, the Court had “no serious problem” finding that patting down the outside of the suspects’ clothing and reaching into their pockets when a weapon was felt was a search confined “strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered weapons.” Id., 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911. In Adams v. Williams, supra, the circumstances warranted the investigating officer’s action in immediately reaching into the suspect’s waistband to seize a pistol.

It soon became clear that the principles of Terry v. Ohio justify a protective search and seizure beyond the person of the suspect. The protective search area may extend to areas within the suspect’s immediate control; that is, the area from which the suspect may obtain a weapon with which to assault the investigating officers. Commonwealth v. Silva, 366 Mass. 402, 318 N.E.2d 895, 900 (1974) [citing Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969)]; Young v. United States, 140 U.S.App.D.C. 333, 435 F.2d 405 (1970). Where a suspect remains in the automobile “a reasonable self-protective search under proper circumstances need not be confined to a personal frisk of the occupants of the vehicle, but should extend to the area of the car reasonably accessible to the occupants. Such area should at least include the front seat and floor of the vehicle.” State v. Malbeck, 552 P.2d 1092, 1094 (Wash.App.2d 1976).

The Florida case of Lyles v. State, 312 So.2d 495 (Fla. 1st DCA 1975) is in accordance with this authority. In Lyles, police officers had reason to suspect that the vehicle in which Lyles was seated was stolen. A police officer approached the vehicle to compare its motor vehicle identification number with that of the stolen vehicle. While making this comparison, the officer noticed Lyles reach under a nearby armrest. Immediately, and while Lyles was still seated beside the armrest, the officer reached into the vehicle and under the armrest. The officer retrieved a small plastic bag containing a white powder and an envelope containing heroin. The court upheld the search under the principles of Terry v. Ohio. The court found that the officer had adequate reason to suspect that a weapon had been hidden under the armrest next to Lyles. The court also found that the scope of the search was properly limited to only the armrest. The court went on to state: “Even though no weapon was discovered, it is the reasonableness of the officer’s belief that governs and not the actual existence of the weapon.” 312 So.2d at 496.

The scope of protective searches has been extended beyond a strict construction of “the immediate control of the suspect.” In United States v. Thomas, 314 A.2d 464 (D.C.Ct.App.1974), the court was faced with the narrow issue: “Did removal of the suspects from their car make unreasonable the search which would have been reasonable had they remained in it?” The court concluded that it did not. The court stated, “The principles enunciated in that case (Terry v. Ohio) are wholly consistent with the concept that an automobile’s passenger compartment may be the subject of a limited search, in circumstances such as those presented here, for the protection of officers who otherwise might be endangered if the occupants were permitted to reenter the vehicle at the end of the investigative inquiry.” (Emphasis added) 314 A.2d at 468.

It is important to note that protective searches incident to an investigative stop involve the danger that the suspect will return to a vehicle in which a weapon may be hidden, since the investigating officer may not have probable cause to arrest the suspect. This danger, inherent in investigative stops, has been widely recognized. See, for example, Commonwealth v. Silva, supra; United States v. Powless, 546 F.2d 792 (8th Cir.1977), cert. denied 430 U.S. 910, 97 S.Ct. 1185, 51 L.Ed.2d 588; Johnson v. United States, 367 A.2d 1316 (D.C.Ct.App.1977). In an early case on this point, United States v. Green, 151 U.S.App.D.C. 35, 465 F.2d 620 (1972), the United States Court of Appeals for the District of Columbia Circuit justified this extension of protective searches on the basis that the area would be accessible to the suspect if the suspect should break away and attempt to flee, or should the suspect be allowed to re-enter the vehicle after completion of the investigation. The court pointed out that the danger to the police officers is a real danger.

“Although appellant asserts that it is ‘incredulous’ that he would open fire on the officers after they had permitted him to re-enter his vehicle, we note that the possibility is not as remote as one might think. [The court then quoted statistics.] As one court has observed [State v. Coles, 20 Ohio Misc. 12, 249 N.E.2d 553, 559 (1969)], the cemeteries and police stations contain living epitaphs of those dedicated traffic officers who failed to take reasonable precautions for their own protection.’ Moreover, the arrestee may not be the respectable citizen we would like him to be, but rather he may be an individual who may have good reason to avoid prolonged encounter with the police, thereby resulting in resort to a weapon or attempted escape.” 151 U.S.App.D.C. at 40, 465 F.2d at 625.

We hasten to add that in each of these cases, the police received some specific and reliable information or observed some act of an occupant of the vehicle indicating concealment, which gave rise to a well-founded suspicion that a weapon may be concealed in the passenger compartment of the vehicle.

We hold that under proper circumstances a police officer making a valid investigative stop involving an automobile may conduct a carefully limited search of areas accessible to occupants of the vehicle and in which the officer has, based upon specific and articulable facts, well-founded reason to believe an accessible weapon is hidden. This protective search may take place even though the occupants have been temporarily removed from the vehicle. The protective search must be limited to circumstances in which the investigating officer has received some reliable information, or has observed some furtive gesture, indicating the presence of a weapon in a particular and accessible area of the vehicle. The protective search must be limited to that particular area. The protective search must be conducted in a manner reasonably calculated to uncover weapons only. This extension of the scope of a protective search applies only where, at the time of the search, it appears that the suspect should be allowed to return to his vehicle.

Applying these principles and limitations to the case at bar, we find that the search under the armrest did not transgress the permissible scope of a protective search. The police officers were called to investigate a potential robbery, the circumstances of which we have determined to more than justify the reasonable suspicion that criminal activity may be afoot and that the suspects may be armed and dangerous. The investigating officers saw a bulge in Thomas’ waistband. Their experience caused them to reasonably suspect that under the circumstances the bulge may be caused by a weapon. When they ordered Thomas to remain still and Deputy Harrison approached, Thomas made sudden movements as if to conceal something under the armrest. Thomas’ furtive gesture about the armrest focused the officers’ reasonable suspicions of the presence of an available weapon under the armrest. After Deputy Harrison verified that Thomas had no weapon on his person, the officer was warranted in searching the area which Thomas’ action indicated a weapon may be concealed. If present, the weapon would have been immediately available to either appellant or Thomas if either man were permitted to re-enter the vehicle. It must be remembered that until the search under the armrest, the officers were without probable cause to arrest the suspects. The search was based upon specific and articula-ble facts giving rise to well-founded suspicion that a weapon was present under the armrest. The search was limited to only that small particular area of the car which the suspect's furtive gesture indicated may conceal a weapon. The search was limited to a manner no more extensive than was necessary to disclose any weapon hidden under the armrest. Consequently, the search under the armrest fell within the scope of a protective search. The police officer acted reasonably in his search under the armrest. Accord, Commonwealth v. Almeida, 366 N.E.2d 756 (Mass.1977).

We do not consider our decision to be in conflict with the decision in State v. Skrobacki, 331 So.2d 376 (Fla. 1st DCA 1976). In that case the police had probable cause to arrest the suspect, and did arrest the suspect, prior to a search of his vehicle. There was little likelihood that the suspect was going to be permitted to return to his vehicle.

The search of the remainder of the vehicle was performed upon appellant’s consent. Appellant has not shown this consent to be unknowing or involuntary.

Appellant has failed to demonstrate reversible error. The trial court’s denials of appellant’s motion to suppress and motion for new trial were proper. Accordingly, appellant’s conviction is hereby

AFFIRMED.

GRIMES and RYDER, JJ., concur.


text:
    Jessie DAY, Appellant, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, Joel T. Smith, and Betty Mae Smith, Appellees.
    No. 77-1431.
    District Court of Appeal of Florida, Second District.
    May 12, 1978.
    Michael Foster of Wagner, Cunningham, Vaughan & Genders, P. A., Tampa, for appellant.
    Benjamin H. Hill, III and R. Wayne Miller of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellee Florida Ins. Guaranty Association.
   PER CURIAM.

Plaintiff Day seeks to appeal an order which states “the Defendant, Florida Insurance Guaranty Association’s Motion for Final Summary Judgment be and the same is hereby granted.” This is not a final decision, order, judgment or decree within the contemplation of Fla.R.App.P. 3.2(b). Likewise, this case is not one which formerly would have been cognizable in equity so the order is not subject to an interlocutory appeal. Fla.R.App.P. 4.2(a).

Therefore, we have no jurisdiction, and this appeal is hereby dismissed sua sponte. Rizzuto v. DiPaolo, 357 So.2d 490 (Fla. 2d DCA, opinion filed Apr. 19, 1978); Arnold v. Brady, 178 So.2d 732 (Fla. 2d DCA 1965).

GRIMES, Acting C. J., and RYDER and DANAHY, JJ., concur.


author: ERVIN, Judge.

text:
    WESTERN WORLD INSURANCE COMPANY, INC., a corporation, Appellant, v. The TRAVELERS INDEMNITY COMPANY, a corporation, Appellee. WESTERN WORLD INSURANCE COMPANY, INC., a corporation, Appellant, v. Jimmy Lee CLARK and Jesse Lee Moore, etc., Appellees.
    Nos. FF-434, FF-442.
    District Court of Appeal of Florida, First District.
    May 16, 1978.

      Luke G. Galant of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    M. Carroll Cayer, George Stelljes, Jr. of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellees.
   ERVIN, Judge.

Western World, the general liability insurer of Clark and Moore Security Service, appeals judgments entered in favor of ap-pellees indemnifying them for a judgment entered against them in the amount of $5,000 resulting from an action brought against them by Willie Howard Thomas, a party not involved in this appeal. Thomas sued Clark and Moore for assault and battery and appellee Travelers, Clark and Moore’s surety on a $5,000 performance bond issued pursuant to Sections 493.08 and 493.09, Florida Statutes (1975). The complaint was later amended to add Western World, which settled the claim against it with Thomas for $12,500 and obtained a release. The release provided that any further liability of Clark and Moore would be limited to the sum of $5,000, the maximum amount authorized under the security bond. After a non-jury trial, judgment was entered in favor of Thomas for $5,000. Travelers paid the judgment and the court subsequently directed that Travelers recover $5,000 from Clark and Moore. Travelers and Clark and Moore filed complaints against Western World for its failure to defend and for payment of the $5,000 paid by Travelers to Thomas. The court found that the policy issued by Western World obligated it to provide a defense to its insureds, Clark and Moore. It held Western World was liable to Clark and Moore for attorney’s fees incurred by Clark and Moore after Western World withdrew from the original suit filed by Thomas. The court also found that had Clark and Moore paid the $5,000 judgment directly to Thomas, it would be entitled to recover from Western World the amount paid, and as a result of payment, Travelers was subrogated to the rights of Clark and Moore and entitled to recover $5,000 from Western World.

Western World argues it is against public policy to allow an assured’s bonding company to recover from the s§,me assured’s general liability carrier because the law of suretyship allows the surety indemnification from its principal after the surety has paid the loss. We reject this argument.

The statutory bond issued by Travelers does not impose any duty upon the surety to defend its principal in the event suit is brought against the principal for breach of one of the conditions of the performance bond. The insurance policy issued by Western World, on the other hand, specifically commits the insurer to “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . caused by an occurrence . .” It was specifically required to defend Clark and Moore and to pay up to the maximum amount of coverage provided to its insureds, Clark and Moore, for injuries sustained by any person arising from certain named offenses committed in the course of the insureds’ business. The distinctions between a general liability insurance policy and a statutory penal bond are obvious. “[T]he usual view, grounded in commercial practice, [is] that suretyship is not insurance.” Pearlman v. Reliance Ins. Co., 371 U.S. 132, 140 n.19, 83 S.Ct. 232, 236, 9 L.Ed.2d 190 (1962); United States v. Markowitz Bros. Inc., 383 F.2d 595, 599 (9th Cir.1967). The surety on a bond is lending its credit to make certain, if the conditions of the bond are violated, that the aggrieved party will be protected in the event the principal is financially unable to comply with the conditions of the bond. If the principal can satisfy the obligation, the surety need not respond. The surety, unlike the liability insurer, however, is entitled to be indemnified by the one who should have performed the obligation. Cf. Anderson v. Trueman, 100 Fla. 727, 130 So. 12 (1930). Clark and Moore, by paying a premium which resulted in the purchase of a liability insurance policy from Western World, in effect made themselves financially responsible to meet their obligations under the terms of the bond. The maximum amount of coverage afforded to Clark and Moore through their liability insurance policy was far in excess of the total judgments recovered by Thomas. Since it is clear under the law of general suretyship that the surety, Travelers, may be indemnified from its principal, Clark and Moore, for the judgment paid to Thomas, Travelers has the right to be subrogated to any rights which Clark and Moore have against their insurance carrier.

Western World additionally argues that since the policy expressly excludes liability assumed by Clark and Moore under any contract or agreement, it is thereby insulated from liability to the amount of $5,000, which Clark and Moore were obligated to their surety in the event of payment. We agree with the lower court’s determination that the assumption of liability by a principal to its surety must be pursuant to an express contract or agreement. While the bond furnished by Travelers is a contract or an agreement, it did not contain any express assumption of liability by the insureds. Clark and Moore’s liability arose as a matter of law from a theory of indemnification. The general rule is that an exclusion, such as the one here, refers only to contractually created liability, and has no effect upon the general liability of the insured arising by operation of the law. Ohio Cas. Ins. Co. v. Flanagin, 44 N.J. 504, 210 A.2d 221, 231 (1965); Larson Construction Co. v. Oregon Automobile Ins. Co., 450 F.2d 1193 (9th Cir. 1971); Cf. Home Ins. Co. v. Southport Terminals, Inc., 240 So.2d 525 (Fla. 2d DCA 1970). See particularly 12 Couch on Insurance, section 44:446 et seq. (2d Ed.1964).

Clark and Moore’s petition for attorney’s fees on appeal is granted and the cause remanded to the trial court for the assessment of an appropriate award. Traveler’s petition for fees is denied. We agree with the trial court that Travelers is neither an insured nor a named insured, as contemplated by Section 627.428, Florida Statutes (1975), entitling it to a fee.

AFFIRMED.

MILLS, Acting C. J., and EDWARDS, WILLIAM F., Associate Judge, concur.

      . Requiring a security service, as a condition to licensing, to obtain a bond in the amount of $5,000 payable to the Governor of the State of Florida.


author: BOYER, Acting Chief Judge. ERVIN, Judge,

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. EDWARD M. CHADBOURNE, INC., Appellee.
    No. GG-190.
    District Court of Appeal of Florida, First District.
    May 16, 1978.
    H. Reynolds Sampson and George L. Waas, Tallahassee, for appellant.
    Thurston A. Shell of Shell, Fleming, Davis & Menge, Pensacola, for appellee.
    Raymond L. Syfrett of Syfrett, Hutto & Paulk, Panama City, Hume F. Coleman, F. Alan Cummings and Bruce Stone of Holland & Knight, Tampa, amicus curiae.
   BOYER, Acting Chief Judge.

Appellee Chadbourne is an asphalting contractor which does business with the Department of Transportation. This dispute involves the amount owed under a paving contract after legislative enactment of Section 337.143, Florida Statutes (1975) and its subsequent amendment in 1976.

This is an appeal from an amended summary final judgment, in which the learned trial judge recited his reasoning as follows:

“This cause came on to be heard on motions for summary judgment filed by both parties, both parties agreed before the Court that no issues of fact were to be decided and that the sole issue before the Court was a question of law, and the Court having considered the pleadings, exhibits, affidavits and stipulation before the Court, and after hearing the argument of counsel and reviewed the briefs submitted by counsel, finds:
“1. That the case indeed will be decided by which act of the legislature applies, Section 337.143, F.S.1974, or the same section as amended by the 1976 legislature.
“2. The 1974 Florida legislature passed a bill directing the defendant to adjust the unit price for bituminous materials used in contracts for roadway' construction for which bids had been received by the defendant before April 1, 1974, and for which such materials had not been used on road construction contracts before December 1, 1973. The act further required contractors accepting the provisions of the act to submit all such contracts to the terms of the act.
“3. Following the adoption of the act, the defendant promulgated the necessary rules to implement the legislative will and sent the plaintiff proper notice of such implementation.
“4. The plaintiff elected to submit all of its contracts to the defendant for re-computation in accordance with the statute and rules then in effect. For the three contracts then completed within the statutory time frame the defendant paid the plaintiff additional compensation on two of them and deducted from the contract price of the other.
“5. The Leonard Street contract, the subject of plaintiff’s complaint, was completed by the plaintiff and accepted by the defendant. Whereupon, under new rules promulgated by the defendant, the defendant declined to pay the statutory adjustment. It was agreed at the hearing that if the 1974 statute applies, the defendant owes the plaintiff $31,255.38.
“6. This suit was filed in 1975. Following an unsuccessful appeal on a venue question, the defendant answered and counterclaimed, pleading the 1976 statute as a defense and in its counterclaim demanded reimbursement from the plaintiff for the sums previously paid to the plaintiff under the 1974 statute.
“7. The legislature could not force the plaintiff to accept the terms of the 1974 statute, for to do so would have been contrary to the United States and Florida constitutions as an impairment of a valid and existing contract. The legislature did not attempt to do so, but gave contractors a choice. The plaintiff chose to participate, taking the good with the bad. The 1976 legislature amended the statute involved, again giving contractors a choice. The plaintiff did not elect to participate, instead relying on its rights under the 1974 statute.
“8. The defendant now seeks to recover in its counterclaim the amounts previously paid to plaintiff under the 1974 statute and rules. The plaintiff elected to come under that statute, and the defendant made payments called for by law. The defendant cannot now seek reimbursement for that which was lawfully paid to plaintiff. It is therefore,
“ADJUDGED that:
“1. The defendant’s motion for summary judgment on its counterclaim is denied.
“2. The plaintiff’s motion for summary judgment is granted and that the plaintiff do have and recover of and from the defendant a judgment for $31,255.38, plus interest to date of $3,644.37 and court costs of $26.50, for a total of $34,-926.25.”

The record reveals that in 1974, in response to rising prices caused by the energy crisis, the Florida legislature enacted Section 337.143 (Chapter 74-262, Laws of Florida), directing the Department to adjust the unit price for bituminous materials used in contracts for roadway construction for which bids had been received by the Department before April 1, 1974. As recited by the trial judge, the contractor could choose to proceed either under his established contract price or could have his compensation adjusted monthly by the Department, based upon the current price index for asphalt. The act did not apply to material used before December 1, 1973. Contractors which accepted the act’s provisions were required to submit all such contracts to the terms of the act. Chadbourne elected to submit all its contracts to the Department for recomputation. For the three contracts submitted, the Department paid Chadbourne additional compensation on two of them and deducted from the contract price of the other. The contract here under dispute was completed by Chadbourne and accepted by the Department. The Department however refused to make final payment relying upon a 1976 amendment to Section 337.143 (Chapter 76-174, Laws of Florida). That amendment was enacted for the purpose of preventing windfall profits. For example, an asphalt contractor might have entered into a long-term agreement with his supplier before the energy crisis occurred. Despite the low price actually paid for asphalt, the contractor could still under the 1974 act have the benefit of higher current asphalt prices, as adjusted monthly by the Department. The 1976 amendment was designed to avoid such results.

Chadbourne filed suit and the Department counter-claimed seeking reimbursement for sums previously paid under the 1974 statute. The trial judge entered the summary final judgment above quoted, and this appeal followed.

As held by the trial judge, the legislature could not have forced Chadbourne to accept the terms of the 1974 statute, for to do so would be contrary to the United States and Florida constitutions as an impairment of a valid and existing contract. Chadbourne chose, however, to participate, taking the good with the bad. The trial judge construed the 1976 amendment as again giving contractors a choice. We agree. Since Chadbourne did not elect to participate, his payment must be determined under the 1974 act. Having elected to participate under the 1974 act, but having exercised his right not to participate under the 1976 act, the latter did not affect the contracts which were submitted pursuant to the 1974 act prior to the enactment of the 1976 act.

The Department argues the 1974 act did not vest rights in asphalt contractors which would preclude further legislative action. We agree, except as to contracts submitted prior to the further legislative action.

The Department also contends that the subject statute offends Article VII, Section 10, Florida Constitution which provides:

“Pledging Credit Neither the state nor any county, school district, municipality, special district, or agency of any of them, shall become a joint owner with, or stockholder of, or give, lend or use its taxing power or credit to aid any corporation, association, partnership or person; . . ”

The Department has standing to contest the validity of a statute affecting it. (State v. Love, 99 Fla. 333, 126 So. 374 (1930)).

The quoted provision of our constitution requires a public purpose for any use of the taxing power of the state. It is settled law that the primary purpose of any governmental undertaking must be public in nature, even though the undertaking may incidentally benefit private corporations or individuals. (State ex rel. Ervin v. Cotney, 104 So.2d 346 (Fla.1958); Bannon v. Port of Palm Beach District, 246 So.2d 737 (Fla.1971)). A governmental undertaking having the converse effect will be struck down. “Incidental benefits accruing to the public from the establishment of some private enterprise is [sic] not sufficient to make the establishment of such enterprise a public purpose . . . ” (Adams v. Housing Authority of City of Daytona Beach, 60 So.2d 663, 669 (Fla.1952)).

However, fixing payment according to a monthly asphalt price index is a double edged sword. At the time F.S. 337.143 was enacted prices were volatile and unstable, capable of dropping abruptly should the oil embargo have failed. The statute then would have operated to the benefit of the state should asphalt prices have plunged. We reject the constitutional attack.

We . have considered the other points raised by the Department and find them too to be without merit.

AFFIRMED.

MILLS, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissents.

I disagree with the majority’s affirmance since I am of the opinion Section 337.143 fails to state a public purpose and therefore violates Article VII, Section 10 of the Florida Constitution. The statute applied only to contracts for which bids had already been received. Prior to the passage of Ch. 74-262, the terms of the individual contracts had been already set. The statute was passed not to increase the quality of roads or the number of miles paved, but had the effect of increasing the prices fixed for existing contracts by tying the price of asphalt, containing as it does petroleum, to post-oil embargo prices. No rational contractor would accept a statutory price indexing scheme for all his contracts unless he was assured an increase in payment.

The possibility of a drop in oil prices so low that payments would dip below the original price bid is remote indeed. This certainly was not the legislative intent as evidenced by Ch. 74-262:

WHEREAS, the price of bituminous material has substantially increased during the past months due partly to the worldwide energy crises, and the situation now and in the future appears to be very volatile and unstable, and
WHEREAS, a contractor has no control over the rapidly increasing prices of bituminous material after he has successfully bid on a road construction project with the Department of Transportation, and after entering into binding contracts for the supply of bituminous material, and
***** *
WHEREAS, contractors on projects for which bids were received by the Department of Transportation prior to April 1, 1974 will suffer irreparable economic harm and injury in performing their contracts upon the failure of the Legislature to enact this law, NOW THEREFORE .... (e.s.)

If any doubt remains as to the purpose behind Section 337.143, note the statutory language added in 1976:

(1) Recognizing that the unprecedented increase in the cost of petroleum products seriously affects a vital segment of the construction industry* legislative intent was, and is, to protect, by this act, said industry from irreparable economic harm and injury.

It is clear the argument that plunging prices may produce a windfall to the state is an after the fact justification. The primary purpose of this statute is to provide extra payment to contractors who have done no extra work in return. Any benefit to the public is only incidental.

Chapter 74-262 includes a finding that “irreparable harm” would result from the performance of existing contracts. A search of the legislative history of the bill does not reveal the basis for this conclusion. A finding of “irreparable harm” is akin to a judicial function, requiring evidence, consideration of precedent and the arguments of affected parties. The Supreme Court of Washington struck down a similar finding in an act as an invalid legislative incursion into powers reserved to the judiciary. That act, .in providing relief to road builders, found performance of existing contracts was “economically impossible.”

I would not go so far to say the Florida law is constitutionally defective because of the finding in the preamble of “irreparable harm.” But, at the same time, I would not consider the law valid as fulfilling a primary public purpose simply because of such language. Compare Tampa v. State, 155 Fla. 177, 19 So.2d 697 (1944). The only defense an asphalting contractor would normally have after nonperformance would be economic impossibility due to changed circumstances. This is a legal determination, based on the individual facts and circumstances. Even if we equate “irreparable harm” with impossibility, the act has validity only if we presume asphalting contractors en masse would default on their contracts. Obviously such a remote scenario would result in roads not being built and contracts unfulfilled. Otherwise contractors would be liable for their nonperformance. I am loathe to accept any implied legislative finding of impossibility since it is premised upon so tenuous a potentiality. No doubt consumers and other business groups have also suffered from rising oil prices, but have made do without legislative relief.

I would reverse and find Section 337.143 unconstitutional.

      . City of Tacoma v. O’Brien, 85 Wash.2d 266, 534 P.2d 114 (1975).


text:
    Samuel AVERHEART, Appellant, v. STATE of Florida, Appellee.
    No. GG-202.
    District Court of Appeal of Florida, First District.
    May 16, 1978.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant appeals a jury conviction of burglary of a dwelling. He urges that the sentence imposed thereon of life imprisonment is excessive.

Count II of the information alleged in pertinent part that:

“Samuel Averheart, ... did unlawfully enter remain (sic) in a certain dwelling, located at 20 North Reus Street . the property of Pearl Bartlett as owner or custodian thereof, with the intent to commit an offense therein, to wit: Sexual Battery, contrary to Section 810.02(3), Florida Statutes.”

Count I of the information alleged that appellant on the same date committed sexual battery upon Pearl Bartlett and that in the course thereof, he used or threatened to use a deadly weapon or he used actual physical force likely to cause serious personal injury, contrary to Section 794.011(3), Florida Statutes (1975). Appellant does not challenge the judgment and sentence imposed on this count.

Section 810.02, Florida Statutes (1975), provides in part:

“(1) ‘Burglary’ means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, .
(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in § 775.082, § 775.-083, or § 775.084, if, in the course of committing the offense, the offender:
(a) Makes an assault upon any person.
(b) Is armed, or arms himself within such structure, with explosives or a dangerous weapon.
(3) If the offender does not make an assault or is not armed, or does not arm himself, with a dangerous weapon or explosive as aforesaid during the course of committing the offense and the structure entered is a dwelling or there is a human being in the structure or conveyance at the time the offender entered or remained in the structure or conveyance, the burglary is a felony of the second degree, punishable as provided in § 775.-082, § 775.083, or § 775.084. Otherwise, burglary is a felony of the third degree punishable as provided in § 775.082, § 775.083, or § 775.084.”

Count II of the information herein charged appellant with burglary of a dwelling under Section 810.02(3), a second degree felony. It contained no allegations of the aggravating circumstances set forth in Sections 810.02(2)(a) or 810.02(2)(b). The allegation that an assault occurred in the course of the commission of the burglary may not be inferred from other counts of the information. Under Section 810.02(3) which is applicable herein, appellant could be sentenced to no more than fifteen years imprisonment. Accordingly, the judgment of conviction is affirmed. The sentence imposed for Count II, burglary of a dwelling is set aside and the cause is remanded to the trial court for sentencing as provided by Section 810.02(3).

MILLS, Acting C. J., and ERVIN and MELVIN, JJ., concur.


text:
    Mahmood MOHAMMAD, Appellant, v. Shala MOHAMMAD, Appellee.
    No. EE-235.
    District Court of Appeal of Florida, First District.
    May 17, 1978.
    Opinion Revised on Rehearing June 26, 1978.

      Jean Laramore, Tallahassee, for appellant.
    J. Klein Wigginton, of McClure, Wiggin-ton, Campbell & Owen, Tallahassee, for ap-pellee.
   BOYER, Judge.

By this appeal, the husband (appellant here) seeks review of several portions of a final judgment of dissolution of marriage.

The parties were married in Iran in 1965 after the husband had completed medical school and the wife had graduated from high school. At the time of their marriage, the parties entered into an antenuptial agreement fixing the property rights of both parties in the event of divorce. The parties moved to the United States and eventually in 1973 moved to Tallahassee where the husband commenced the practice of obstetrics and gynecology. The wife did not work during the marriage: However, she is currently attending college and is studying to become an x-ray technician.

The parties have two children, a daughter, age 4, and a son, age 11, the custody of whom the parties are litigating. The trial court ordered both parties to submit to a mental examination by a court appointed psychiatrist, who reported his findings and conclusions to the court. The husband moved to compel discovery of psychiatric reports relating to the mental condition of the wife. The trial judge granted the motion but refused the husband access to the records of the wife’s psychiatrist, Dr. Wray.

The husband’s income for 1974 was $74,-053.00 and $120,636.00 for 1975. His projected income for 1976 was $153,666.96. He has a $10,000.00 interest in a joint land venture, joint interest with his wife in the marital home, a joint checking account with the wife for $5,000.00 a personal account of $2,500.00, and a corporate savings account of $30,000.00.

During the final hearing, several friends, neighbors, doctors and clinical psychologists testified on the issue of custody and both parties’ fitness to have custody. Later, the court entered a final judgment awarding the wife custody of the children, child support, lump sum alimony, periodic alimony, a car, one-half of the parties’ $5,000.00 savings account and attorneys fees.

The record on appeal reveals an amended petition for dissolution of marriage to which is attached as an exhibit an antenuptial agreement entitled “Marriage Contract Deed” entered into by the parties in Iran. In her answer appellee admitted the signing of the antenuptial agreement and admitted that a copy thereof was attached to the amended petition. Appellant’s first assignment of error urges that the trial court erred in denying appellant the opportunity to present any evidence pertaining to said antenuptial agreement and in refusing to enforce same. The transcript of the testimony reveals the following:

“Direct Examination by Mrs. Laramore:

“Q. Dr. Mohammad, you entered into a marriage contract with your wife in another country, did you not?
“A. That’s right.
“Q. And what were the terms of this marriage contract?
“The Court: That is wholly without my consideration, this antenuptial agreement that was entered into under the laws of another country. That is not going to have one bit of bearing whatever on what I intend to do.
“Mrs. Laramore: I’m sorry, Your Honor has not said that before. I did not know.
“The Court: Well, I thought I made that plain earlier, that I wasn’t going to be bound in this proceeding by any antenup-tial agreement entered into under the laws of another country which was the tradition and culture of that country. I’m sorry if I didn’t make that plain. I’ll make it plain now.
“Mrs. Laramore: I’m sorry, I would not have asked.
“The Court: No, I thought I made myself plain on that. I read the antenuptial agreement. It’s in the 'file I suspect somewhere.”

Although the better practice would have been to have made a proffer of the ante-nuptial agreement or at least have it marked for identification, the allegations of the amended petition and answer established it as a fact and it is clear from the testimony that the attitude of the trial judge was such as to place a chilling effect upon any further attempts by appellant’s counsel to have it considered.

The real issue presented by appellant’s first point is whether or not a change in circumstances after a marriage vitiates an otherwise valid antenuptial agreement. However, because of the refusal of the trial judge to permit evidence relative to the circumstances of the parties at the time the antenuptial agreement was entered into or, indeed, any evidence at all relative to the antenuptial agreement, we are unable to reach that issue on appeal. It is obvious, though, that by virtue of the refusal of the trial court to admit the evidence appellant has been deprived of an opportunity to have the issue resolved. We, accordingly, reverse and direct that the appellant be afforded an opportunity to adduce evidence relative to the antenuptial agreement, the circumstances of the parties at the time the agreement was entered into, the circumstances of the parties at the time of the dissolution, and any other evidence relative to the antenuptial agreement, its validity and enforceability.

Another point which requires our consideration relates to the testimony (or sought testimony) of Dr. Wray. The record reveals that prior to the commencement of the dissolution action Mrs. Mohammad sought the services of Dr. Robert Wray, a psychiatrist. During the progress of the case, over the objection of Dr. Mohammad’s attorney, the trial judge obtained copies of various reports made by Dr. Wray relative to Mrs. Mohammad but refused to admit them into evidence and refused to permit their inspection by the attorneys for the parties. Dr. Wray was not called as a witness at the final hearing because Mrs. Mohammad invoked her psychiatrist-patient privilege of confidentiality, which was sustained by the trial judge.

We are acquainted with no law nor rule of evidence which permits a trial judge in a dissolution proceeding, in the absence of agreement of the parties, to consider matters not in evidence and not available to the attorneys for the respective parties. As to the privilege, our sister court of the Third District in Critchlow v. Critchlow, 347 So.2d 453 (Fla. 3rd DCA 1977), considering a case factually similar to that sub judice, said:

“In addition, this case falls within the exception to the privileged communication between a psychiatrist and his (or her) patient as set out in Section 90.-242(3)(b), Florida Statutes (1975):
“90.242 Psychiatrists as witnesses; nondisclosure of communications with patient
“(3) There shall be no privilege for any relevant communications under this section:
******
“ ‘(b) In a criminal or civil proceeding in which the patient introduces his mental condition as an element of his claim or defense, or, after the patient’s death, when said condition is introduced by any party claiming or defending through or as a beneficiary of the patient. Laws 1965, c. 65-404, § 1, eff. June 25, 1965.’
“In her petition for dissolution of marriage, Cynthia alleges that she is a fit and proper person to have custody of Kelli. After her voluntary commitment to the hospital for mental treatment, John filed a motion for leave to amend his counter-petition to reflect that Cynthia is not a fit and proper person to have custody because of her current emotional instability. At a hearing on this motion to amend, the issue of Cynthia’s mental condition was injected into the proceedings and Cynthia’s counsel (upon ore tenus motion) agreed to the appointment of a psychiatrist to examine her and John, and to render a professional opinion as to which party is best suited to have custody thereby introducing Cynthia’s mental condition as an element of her claim for Kelli’s custody.
“We also find that Roper v. Roper, 336 So.2d 654 (Fla. 4th DCA 1976) relied upon by Cynthia is not controlling because in the instant case, in contrast to Roper, Cynthia’s mental health is a highly relevant issue.
“Further, in a dissolution of marriage proceeding where the issue of child custody is presented it is incumbent upon the chancellor to evaluate, among other crucial factors, the mental health of each of the parents in making a final custody determination which is in accord with the best interest of the minor child or children. See Section 61.13(3)(g), Florida Statutes (1975). In light of Cynthia’s voluntary commitment for treatment of her mental condition, Cynthia’s mental health is vital to a proper determination of permanent custody and, therefore, Section 90.242, Florida Statutes (1975) creating the patient-psychiatrist privilege cannot be invoked under the facts in this child custody case.
“Accordingly, the protective order appealed is reversed and the cause remanded to the trial court to enter an order authorizing John to take the depositions of Cynthia’s treating physicians; but limiting the scope of those examinations to communications, diagnosis and treatments insofar as Cynthia’s mental and emotional state relates to her fitness as a mother.” (347 So.2d at pages 454-455)

While we agree with our sister court, under the facts of that case, that opinion is not dispositive of the case sub judice. F.S. 90.242(3)(b), excepts from the privilege communications between a psychiatrist and his patient in a criminal or civil proceeding in which the patient introduces his mental condition as an element of his claim or defense. Unlike the Critchlow case, appellee in the case sub judice did not introduce her mental condition as an element of her claim or defense. In Critchlow the wife alleged that she was a fit and proper person to have custody of the child. She thereafter was committed to a mental hospital for treatment. Thus, her mental condition became a highly relevant issue. In the case sub judice, appellee’s mental condition was introduced by appellant as an element of his claim, and appellee’s mere denial of appellant’s allegations did not waive the statutory privilege. If such were the case, the privilege would be meaningless because a party could always inject such element into the case and thereby destroy the opposing party’s statutory privilege.

Until such time as the issues relative to the enforceability of the antenuptial agreement have been resolved there is no occasion for us to address the other issues presented on this appeal relative to alimony.

Neither is there any occasion for our consideration of the issues relative to the requirement of child support beyond the age of 18 years, nor those issues relative to attorney’s fees in the trial court, until such time as the issue of child custody is properly determined upon appropriate evidence. The record reveals that more than a year and a half has elapsed since the final hearing which gave rise to the final judgment here appealed. We recognize that circumstances may well have changed in that period of time. Further, on the state of the record before us it would be virtually impossible for the learned trial judge, wise and experienced though he be, to correct, nunc pro tunc, the deficiencies noted by us in the proceedings without conducting a de novo hearing on the issue of child custody. The best interest of the children, not procedural niceties, is, of course, the pole star of custody proceedings. We accordingly reverse for a de novo hearing on the issue of custody, at which hearing the parties may, if they so desire, introduce specific portions of the record of the prior hearing or “fresh” evidence, or both, subject, of course, to the application of the appropriate rules of evidence.

Appellee’s motion for attorney’s fees incident to this appeal is provisionally granted, to be fixed by the trial court in accordance with this court’s opinion in Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

AFFIRMED IN PART AND REVERSED IN PART and remanded for further proceedings consistent herewith.

McCORD, C. J., and MELVIN, J., concur.


author: McCORD, Chief Judge.

text:
    Roland L. ROUSSELLE, Appellant, v. B & H CONSTRUCTION CO., INC., Appellee.
    No. FF-342.
    District Court of Appeal of Florida, First District.
    May 17, 1978.
    Fred Butler, Jacksonville, for appellant.
    Walter R. Stedeford, Jacksonville, for ap-pellee.
   McCORD, Chief Judge.

This is an appeal from final judgment impressing a mechanic’s lien upon appellant’s property. We reverse.

Appellee, who was plaintiff below, brought suit to foreclose a mechanic’s lien against appellant alleging that appellee had performed a contract made with appellant but that appellant had not paid $3,952.50 of the $12,425 contract. Appellant filed an answer denying that he owed the balance due and also filed a counterclaim alleging that (1) appellee failed to perform the work in a manner that would “match” appellant’s existing building as was agreed upon in the contract and that appellee’s performance was so unskillful and defective that appellant would have to expend over $5,334 to correct the defects, and (2) the defects in the work performed constituted breach of contract on the part of appellee for which appellant is entitled to damages. The cause was tried before the judge without a jury.

The written contract entered into between the parties which was prepared by appellee provided that appellee would construct an addition on appellant’s existing building in “a manner which will match your present building.” The undisputed evidence shows that upon appellee’s commencement of work, it was immediately determined that the addition must be reduced in size to remain within appellant’s property lines so as not to encroach into adjacent property. In the course of the construction, however, appellee constructed the eaves so that they extended two to three inches over a retaining wall and encroached on the adjacent landowner’s property diverting rainwater onto a neighbor’s land. Also without consulting appellant, appellee constructed a sloping roof on the addition instead of a flat roof as was on the existing building. Further, appellee installed wooden fascia on the addition rather than steel fascia as was on the existing structure. Appellee used brick in the construction which did not match the brick of the original building, and appellee poured foundation for the brick work in such a manner that the foundation from front to back of the addition varied by several inches. Because of this, the brick work to the bottom of the windows on the westerly side of the building was several inches out of level which resulted in the brick mason having to install varying thicknesses of mortar and parts of brick under each window along the side of the wall. This created an unsightly appearance and requires that appellant later tear out the wall and rebuild it in a workmanlike manner. In addition the stucco installed on the addition cracked while the stucco on the main building was not cracked.

Appellee’s chief construction officer admitted that he constructed the addition with a sloped roof without consulting appellant; that the wood fascia did not match the steel fascia on the existing structure, and that he constructed the eaves so that they encroached over defendant’s property line. Appellant produced expert witnesses who testified with particularity as to the costs of correcting the defective work and that such costs would be in excess of $5,000.

The trial court made only general findings that the equities were with appel-lee and against appellant and there was due to appellee the $3,952.50 balance on the contract plus attorneys fees and costs. It also made a general finding that the equities on appellant’s counterclaim were with appellee and against appellant and that appellant should take nothing in his counterclaim. An appellate court will not substitute its judgment for that of the trial court on questions of fact if there is competent substantial evidence to support the judgment. Lowery v. Rosenberg, 147 So.2d 321 (Fla. 1 DCA 1962). However, it is apparent from the undisputed evidence contained in the record in this case that the court’s judgment is not grounded on competent, substantial evidence. Perhaps the trial judge felt that the doctrine of substantial performance was applicable here. That doctrine is not applicable, however, where a contractor has willfully breached the terms of his contract or has intentionally failed to comply with the specifications. In such case, the owner is entitled to be awarded the cost of making the work conform to the contract and specifications. See 13 Am. Jur.2d, Building and Construction Contracts, § 81 at pp. 83-84.

Reversed and remanded with directions to the trial court to reevaluate the evidence in the light of this opinion and fix appellant’s damages on his counterclaim.

BOYER and MILLS, JJ., concur.


text:
    Eldridge A. McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. II-106.
    District Court of Appeal of Florida, First District.
    May 17, 1978.

      Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Patti Englander and George R. Georgieff, Asst. Attys. Gen., for appellee.
   PER CURIAM.

Information alleged that appellant committed robbery and that in the course of committing the robbery, he carried a firearm, contrary to Section 812.13(2)(a), Florida Statutes (1975). Appellant was convicted of robbery while carrying a weapon, Section 812.13(2)(b), Florida Statutes (1975), and was sentenced to thirty years imprisonment. Appellant contends that the evidence was insufficient to establish that he carried a weapon in the course of committing the robbery.

The evidence adduced by the State established that during the commission of the robbery appellant carried a cigarette lighter which was shaped like a gun. We do not believe the cigarette lighter constituted a “weapon” for the purposes of the aggravated penalty provided for in Section 812.13(2)(b), Florida Statutes (1975).

Robbery is a second degree felony punishable by a maximum term of imprisonment of fifteen years. Sections 812-13(2)(c); 775.082(3)(c), Florida Statutes (1975). The Legislature has provided that if a firearm or other deadly weapon is utilized in the robbery, then the offense is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life. Section 812.13(2)(a), Florida Statutes (1975). Further, if a weapon is utilized during the course of the robbery, the offense is a first degree felony punishable by imprisonment not exceeding thirty years. Sections 812.13(2)(b), 775.082(3)(b), Florida Statutes (1975). Thus, it is apparent that the Legislature intended that punishment be more severe where a criminal uses a firearm or weapon capable of inflicting great bodily harm to assist him in the robbery. The purpose of these provisions in part, is to discourage the use of such firearms or weapons during a robbery.

Section 790.001(13), Florida Statutes (1976 Supp.), defines the term “weapon” as “any dirk, metallic knuckles, slingshot, bil-lie, tear gas gun, chemical weapon or device, or any other deadly weapon except a firearm or common pocket knife.” The cigarette lighter is not a “weapon” as previously defined unless it is classifiable as a “deadly weapon.” Although a cigarette lighter might be so classified if, by its use or threatened use, death or great bodily harm is likely to be produced, the evidence herein did not so establish. The cigarette lighter was merely pointed at the victim as if it were a gun.

Accordingly, the judgment and sentence for robbery while armed with a weapon is reversed and the cause is remanded for entry of judgment of robbery under Section 812.13(2)(c) and for imposition of sentence thereunder.

MILLS, Acting C. J., and ERVIN and MELVIN, JJ., concur.

      . For example, if the object were used as a bludgeon, depending on its size and weight, an object, such as a cigarette lighter, might be classified as a deadly weapon.