text:
    LEONARD L. FARBER COMPANY, INC., a New York Corporation, Appellant, v. Hilda JAKSCH, a widow, and Vandermark, Inc., a Florida Corporation, Appellees.
    No. 75-838.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1976.
    Rehearing Denied Aug. 27, 1976.
    Henry Burnett of Fowler, White, Burnett, Hurley, Banick & Knight, P.A., Miami, for appellant.
    Martin J. Sperry of Carey, Dwyer, Austin, Cole & Selwood, P.A., Fort Lauder-dale, for appellees.
   ALDERMAN, Judge.

Leonard L. Farber Company, Inc., the cross-claimant below, timely appeals a final judgment denying its cross-claim for indemnity against the cross-defendant, Van-dermark, Inc. The original plaintiff, Hilda Jaksch, is not involved in this appeal.

Farber, as owner and lessor of a shopping mall, and Vandermark, as lessee, were jointly sued by Jaksch, who sustained injury when she slipped on a piece of sausage lying on a common walkway within the mall. The complaint alleges that Vander-mark was negligent in the procedure used in dispensing free samples of the sausage and that Farber was negligent in failing to reasonably maintain the public area of the mall. The slip and fall occurred a few feet from the entrance to Vandermark’s store.

Farber’s cross-claim for indemnity is based upon the terms of the written lease agreement between the parties. The cross-claim also alleges damages as a result of Vandermark’s failure to provide liability insurance for the benefit of Farber, as provided under the lease.

Prior to the trial, the negligence action was settled with each defendant paying $10,000 to Jaksch, without prejudice to their respective rights against each other.

The pertinent provisions of the lease agreement provide:

“37. INDEMNITY: (a) Lessee shall indemnify LESSOR and save it harmless from suits, actions damages, liability and expense in connection with loss of life, bodily or personal injury or property damage arising from or out of any occurrence in, upon or at or from the Demised Premises or any part thereof, or occasioned wholly or in part by any act or omission of Lessee; its agents, contractors, employees, servants, invitees, licensees or concessionaries, including the sidewalks and common areas and facilities within the Shopping Center development ; * * * ”
“Addendum to Paragraph 37 — Anything contained in Paragraph 37 hereof to the contrary notwithstanding, Lessor shall not be relieved of any liability resulting solely from the negligence of Lessor or of its agents or employees.”
“38. INSURANCE: Lessee shall maintain at its own cost and expense * * * (b) PUBLIC LIABILITY INSURANCE on an occurrence basis with minimum limits of liability in an amount of Five Hundred Thousand ($500,000) Dollars for bodily injury * *
“40. INSURED’S WAIVER, NOTICE: Any insurance procured by Lessee as herein required shall be issued in the name of Lessor and Lessee by a company licensed to do business in the state where the Shopping Center is located * * * »

It should be understood that the issues on this appeal are limited to contractual indemnity. Farber is not asserting or seeking a right of contribution against a joint tort-feasor. No claim is made under the active-passive tort-feasor doctrine. Farber is seeking indemnity for its loss under the “hold harmless” provisions of the Lease Agreement.

The present case is distinguishable from University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973). There tht Supreme Court held that an agreement to indemnify landlord “against any and all claims” did not disclose an intention to indemnify for consequences arising solely from the negligence of the landlord. The court stated that the “. basic objective in construing the indemnity provision is to give effect to the intent of the parties involved”, and found that the use of the general terms, “indemnify . against any and all claims”, did not disclose an intention to indemnify for consequences arising solely from the negligence of the indemnitee. The court adopted the rationale of previous Florida cases which hold that an indemnity agreement which indemnifies against the indemnitee’s own negligence must state this in “clear and unequivocal” language. Gulf Oil Corp. v. Atlantic Coastline R.R. Co., 196 So.2d 456 (Fla.App.2nd 1967), cert. denied, 201 So.2d 893 (Fla.1967); Florida Power & Light Co. v. Elmore, 189 So.2d 522 (Fla. App.3rd 1966), cert. denied, 200 So.2d 810 (Fla.1967); Nat Harrison Associates, Inc. v. Fla. Power & Light Co., 162 So.2d 298 (Fla.App.3rd 1964).

The indemnity agreement in this case clearly did not intend to indemnify Farber for consequences arising solely from its own negligence. This is apparent from the Addendum to Paragraph 37, which specifically states that “. . . Lessor shall not be relieved of any liability resulting solely from the negligence of Lessor or of its agents or employees.”

In the present case, both parties concede that their joint liability to the original plaintiff was occasioned in part by the negligence of the Lessee, Vandermark, and in part by the negligence of the Lessor, Farber. The question then is whether the language, “. . . occasioned wholly or in part by any act or omission of Lessee, .” is sufficiently “clear and unequivocal” to make the Lessee liable to indemnify Lessor for their joint liability, where the joint liability resulted from the negligence of both the Lessor and the Lessee. We believe that it is. To avoid the obvious meaning of Paragraph 37, Vander-mark argues that the “in part” language means any act or omission of Lessee with a third person, other than the Lessor. To reach this conclusion the court would have to read a meaning into the contract contrary to its express language. In our opinion the language of the agreement is clear and unequivocal and discloses the intention of the parties to have the Lessee hold the Lessor harmless.

Farber’s second point is based upon the provisions of Paragraphs 38 and 40, requiring Vandermark to provide liability insurance for the benefit of Farber. Van-dermark admits that it did not obtain liability insurance coverage in Farber’s name. However, Vandermark argues that it had no duty under the lease to indemnify Far-ber for Farber’s own negligence, therefore Farber sustained no damages as a result of Vandermark’s technical breach of the lease. This argument must fail in view of the court’s finding that Vandermark, under the terms of the lease, did have a duty to indemnify.

Reversed and remanded with instructions that judgment be entered against Vander-mark and in favor of Farber.

WALDEN, J., and BERANEK, JOHN R., Associate Judge, concur.


source: Caselaw Access Project

author: SCHWARTZ, ALAN R„ Associate Judge.

license: Public Domain

text:
    Robert John CORLEY, Appellant, v. STATE of Florida, Appellee.
    No. 76-44.
    District Court of Appeal of Florida, Second District.
    July 16, 1976.
    Rehearing Denied Aug. 27, 1976.
    Kenneth Garber, Fort Myers, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHWARTZ, ALAN R„ Associate Judge.

On this appeal from a conviction for second degree murder, we reverse for a new trial because of the trial court’s erroneous exclusion of preferred testimony that the only identifiable fingerprints on a vodka bottle found on a couch near the victim’s body were those of an unidentified third person and had been made neither by the decedent nor the defendant. The evidence was plainly admissible in support of the defense that the crime was committed by someone other than the defendant and the failure to admit it cannot, in light of the entire record, be considered harmless. Commonwealth v. Loomis, 270 Pa. 254, 113 A. 428 (1921); State v. Cooper, 2 N.J. 540, 67 A.2d 298 (1949); see Willoughby v. State, 154 Miss. 653, 122 So. 757 (1929); cf. Dargans v. State, Fla. App.2nd, 1972, 259 So.2d 782; cases collected, Annot., Evidence — Finger, Palm, or Footprint, 28 A.L.R.2d 1115, 1133-1135. The cases cited by the state, e. g., Wilkerson v. State, Fla.App.2nd, 1970, 232 So.2d 217, all of which deal with the quite different issues of the admissibility and sufficiency of fingerprint evidence introduced by the prosecution to establish guilt, are not in point.

The other issues raised by the defendant merit little discussion. The trial judge did not abuse his discretion in determining the victim’s eight-year-old daughter was competent to testify. Bell v. State, Fla.1957, 93 So.2d 575; Davis v. State, Fla.App.3rd, 1972, 264 So.2d 31, 32; Harrold v. Schluep, Fla.App.4th, 1972, 264 So. 2d 431, 434-435. And, on this record, there was no error in the exclusion of police reports which indicated that the victim had made complaints concerning alleged break-ins and attacks upon her where she formerly lived, well prior to the incident in question. A different result would of course follow if, at the retrial, the defendant is able to demonstrate a connection between the fingerprints on the vodka bottle and a person identified in one or more of the reports.

REVERSED and REMANDED.

McNULTY, C. J., and BOARDMAN, J., concur.


author: PER CURIAM.

text:
    Bobby Lee BLASH, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1793.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Phillip A. Hubbart, Public Defender, and Elliott Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Brian H. Leslie, Dept, of Legal Affairs, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFÍELD, JJ.
   PER CURIAM.

Affirmed. See DeLaine v. State, Fla. App.1970, 230 So.2d 168; and with regard to the sufficiency of curative instructions, see Morris v. State, 100 Fla. 850, 130 So. 582 (1930); Falcon v. State, Fla. 1969, 226 So.2d 399; and Burkhead, v. State, Fla. App.1968, 206 So.2d 690.


author: McCORD, Judge.

text:
    Albert L. SPILLERS, etc., et ux., Appellants, v. FIVE POINTS GUARANTY BANK, a Florida Banking Corporation, Appellee.
    No. AA-357.
    District Court of Appeal of Florida, First District.
    July 20, 1976.
    Rehearing Denied Aug. 25, 1976.
    Robert V. Palmer, David U. Tumin, Jacksonville, for appellants.
    Edward McCarthy, Jr., of Freeman, Richardson, Watson, Slade, McCarthy & Kelly, Noah H. Jenerette, Jr., Jacksonville, for appellee.
   McCORD, Judge.

This action was brought in the court below by Five Points Guaranty Bank against Albert L. Spillers, etc., et ux., to foreclose a security agreement, pledge agreement and real estate mortgage. This is an interlocutory appeal from an order granting the bank’s motion to strike the Spillers’ affirmative defenses and to dismiss portions of the Spillers’ counterclaim.

On April 1, 1975, the Spillers gave the bank a renewal note in the amount of $49,-664.02 payable in 30 days. It was secured by a financing statement covering all equipment, furniture, fixtures and inventory of the Spillers’ business, a life insurance policy, and a third mortgage on real estate. The bank’s complaint sought foreclosure and the Spillers filed an answer admitting execution of a pledge agreement, a third mortgage, and an amended pledge agreement but setting up four affirmative defenses alleging invalidity of the instruments sued upon and a counterclaim. The first affirmative defense alleged that the Spillers proposed to the bank that the Spil-lers hold an art sale in the bank with the proceeds going to pay off the bank loan but that the bank president induced them to sign a pledge agreement to the effect that they could not remove their paintings from the bank until the indebtedness was paid in full; that he induced their agreement by threatening to put them out of business and by verbal abuse. The second affirmative defense alleged that the third mortgage on their home, given to obtain an extension on their loan, was obtained by the bank through verbal abuse and threats to close down their business; that these acts were committed when the bank president knew of Albert Spillers’ poor physical and mental health. The third affirmative defense alleged that the bank induced the Spillers to sign the amended pledge agreement permitting the bank to sell the paintings held as collateral to anyone at any price through threats and verbal abuse. The fourth affirmative defense alleged that the amended pledge agreement was void under the provisions of § 679.501, Florida Statutes (a provision of the Uniform Commercial Code). The Spillers’ counterclaim, seeking $500,000 damages, alleged that the bank had sold paintings under the original pledge agreement to preferred customers at discount prices and had induced the Spillers to sign the amended pledge agreement to legitimatize the violations and had intentionally inflicted emotional distress upon the Spillers. The court below granted the bank’s motion to dismiss the four affirmative defenses and portions of the counterclaim.

The Spillers have raised three points on this appeal. First, they contend that threats to enforce rights through the institution of court proceedings render a contract void or voidable, depending upon the circumstances; that the allegations of their first, second and third affirmative defenses are sufficient defenses against the bank’s foreclosure suit. While it is true that threats to enforce legal rights may constitute duress under certain circumstances, they do not constitute duress when the threat is to enforce existent legal rights. Duress would only occur when the threatened enforcement is to enforce rights which in fact are nonexistent. This would occur when the contract sought to be enforced is illegal as in the two cases cited by the Spillers in their brief — Singleton v. Foreman, 435 F.2d 962 (5th Cir. 1970); and Wise v. Midtown Motors, 231 Minn. 46, 42 N.W.2d 404 (1950). It appears that in the case sub judice, however, the Spillers simply borrowed money from the bank and signed various security documents to secure their obligation as it was renewed from time to time. They were “coerced” into signing the various documents only in the sense that they had a choice of either signing them in return for renewals of their obligation or refusing to sign. A refusal could, of course, cause them to default on their obligation thereby putting the bank in position to accelerate the obligation and foreclose on their stock in trade, thus putting them out of business. While this was a type of coercion, it was not such coercion as gives rise to duress and undue influence because the bank had a legal right to follow the course of action it took. The affirmative defenses and counterclaim relying on duress and undue influence are devoid of allegations that the bank did anything which it did not have a legal right to do. The general law on this point is stated in 25 Am.Jur.2d, Duress and Undue Influence § 18 (1966), which we quote in part as follows:

“As a general rule, it is not duress to threaten to do what one has a legal right to do. Nor is it duress to threaten to take any measure authorized by law and the circumstances of the case.
* * * * * *
“Thus, it is the established rule that it is not duress to institute or threaten to institute civil suits, or take proceedings in court, or for any person to declare that he intends to use the courts wherein to insist upon what he believes to be his legal rights. . . . Under the foregoing principles, the fact that a threat was made to resort to legal proceedings to collect a claim which was at least valid in part constitutes neither duress nor fraud such as will avoid liability on a compromise agreement. A threat to resort to remedies given by a contract, or to sue on a past-due note and to foreclose the lien securing such a note, or to foreclose, or exercise the power of sale in a mortgage, . is not such duress as to justify rescission of a transaction induced thereby.”

The U. S. Court of Appeals, Fifth Circuit, in Kohen v. H. S. Crocker Co., 260 F.2d 790 (1958), pointed out:

“. . . Business compulsion is not established merely by proof that consent was secured by the pressure of financial circumstances . . . The doctrine of business compulsion cannot be predicated upon a demand which is lawful, upon doing or threatening to do that which a party has a legal right to do.”

In support of this proposition, the Court of Appeals quoted from Williston on Contracts, Rev.Ed., Vol. 5, at § 1606, as follows:

“The pressure must be wrongful, and not all pressure is wrongful. The law provided certain means for the enforcement of their claims by creditors. It is not duress to threaten to take these means.”

As to the allegations of the Spillers relating to abusive and insulting language, the general law is stated in 74 Am.Jur.2d, Torts § 32 (1974), as follows:

“It is a general rule that a cause of action may not be predicated upon mere rudeness or lack of consideration of one person for another.”

It would follow that rudeness and lack of consideration for another does not constitute either a defense to an action for enforcement of a legal obligation or a cause of action in its own right. We find no error in the dismissal of the Spillers’ first three affirmative defenses and their counterclaim.

The Spillers’ point two relates to their fourth affirmative defense. This defense alleges that the amended pledge agreement is violative of the Uniform Commercial Code § 679.501, Florida Statutes, to the extent that it purports to authorize the bank to dispose of the Spillers’ paintings (held as collateral) for any price or prices unilaterally decided upon by the bank and is therefore void and unenforceable. The aforesaid statute, however, relates only to defaults. While the Spillers may have been in default under an agreement prior to the amended pledge agreement and may thereby have had a valid defense had action been brought based upon that default, it affirmatively appears from the allegations of the Spillers that they executed an amended pledge agreement authorizing the action that was taken. It, thus, appears that the Spillers destroyed any previous defense they may have had on this point by the execution of the amended pledge agreement.

Finding, pursuant to Florida Appellate Rule 4.2 c, that the interlocutory appeal is without substantial merit, it is dismissed.

BOYER, C. J., and RAWLS, J., concur.


author: PER CURIAM. DOWNEY, Judge

text:
    Early WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 75-895.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1976.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, and Paul M. Herman, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William M. Grodnick, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

In light of the Supreme Court of Florida’s recent decisions in Shannon v. State, 335 So.2d 5, opinion filed June 30, 1976 and Bennett v. State, 316 So.2d 41 (Fla. 1975), and this court’s decision in Bostic v. State, 332 So.2d 349 (Fla. 4 DCA 1976), the testimony elicited during direct examination by the State reflecting the defendant’s silence after his arrest and Miranda warnings constituted fundamental reversible error. Accordingly, the judgment and sentence of conviction are reversed and the cause remanded for a new trial.

REVERSE AND REMAND.

MAGER, C. J., and WALDEN, J., concur.

DOWNEY, J., concurs specially, with opinion.

DOWNEY, Judge

(concurring specially).

In this case a police officer called as a witness for the state, testified that he informed appellant of his constitutional rights at the time of appellant’s arrest and that appellant did not want to talk at that time. After being taken to the police station, the appellant was again informed of his constitutional rights. At that time appellant voluntarily made an incriminating statement. The court received that statement into evidence.

The majority has decided to reverse on authority of cases holding that it is reversible error for the state to produce evidence that tells the jury a defendant remained silent after being advised of his constitutional rights. I have no quarrel with those cases. However, under the circumstances of the present case, I do not think they are applicable here because the appellant made a voluntary inculpatory statement at the police station after remaining silent at the time of his arrest. I think that the subsequent voluntary statement dissipated any harm which the testimony relative to the earlier silence might have inflicted on appellant because harm results from improper inferences a jury might make from testimony concerning a defendant’s silence upon being given constitutional warnings.

Here any inferences the jury might make as to appellant’s initial silence were insignificant in light of appellant’s voluntary inculpating statement.

Were it not for this court’s decision in Breniser v. State, 267 So.2d 23 (Fla. 4th DCA 1972) (in which the defendant’s subsequent voluntary inculpatory statement was held not to dissipate the prejudice arising from testimony as to his earlier silence), I would dissent in this case. While I disagree with the holding in the Breniser case, I feel constrained to follow it. I therefore concur in the decision to reverse the judgment of conviction in this case.

      . “Not only is evidence of silence at the time of arrest generally not very probative of a defendant’s credibility, but it also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendant’s previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest.” United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 2138, 45 L.Ed.2d 99 (1975).


text:
    CINCINNATI INSURANCE COMPANY et al., Appellants, v. David Martin PUTNAM and Century Federal Savings and Loan Association of Ormond Beach, etc., et al., Appellees.
    No. 75-1873.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1976.

      Hugh M. Palmer of Welbaum, Zook, Jones & Williams, Orlando, for appellants.
    Kenneth A. Studstill of Kenneth A. Studstill, P. A., Titusville, for appellees.
   PER CURIAM.

Upon due consideration of the briefs, record on appeal and oral argument we are of the opinion that a genuine issue of material fact exists with regard to appel-lee Putnam’s claim of lien for architectural services against the surety, Cincinnati Insurance Company, appellant. The trial court correctly determined that appellee Putnam was not required to give notice of claim of lien to the owner, Royal Oak Properties, Inc., appellee, as provided by section 713.06(2), Florida Statutes, by virtue of an exemption granted for professional services as set forth in section 713.03(3), Florida Statutes. Royal Oak, owner, had previously entered into a contract with Brody Construction, Inc., appellee-contractor, for the construction of condominiums. Cincinnati, appellant-surety, executed a performance and payment bond with Brody as principal and Royal Oak as obligee.

In our opinion in order for Putnam as a supplier of architectural services for the project to be entitled to enforce his claim of lien by direct action against Cincinnati, surety, under section 713.23, Florida Statutes, it was necessary for Putnam to establish that he was in privity with Royal Oak, the obligee under the bond. The liability of the surety is ordinarily measured by the liability of the principal (Brody) and generally the surety is not liable if the principal is not liable. 30 Fla.Jur., Surety-ships, sec. 14; F.S. § 713.23. If Putnam’s agreement to furnish architectural services was with Royal Oak Properties then Cincinnati as surety for Brody would not be liable to Putnam; however, if it were shown that Putnam’s agreement was with Brody then Putnam’s action against Cincinnati would be proper and in accordance with section 713.23, Florida Statutes. Herein lies the genuine issue of material fact that must be resolved before the liability of Cincinnati can be determined. Accordingly, the summary final judgment is reversed and the cause remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

MAGER, C. J., ALDERMAN, J., and WILLIAMS, W. C., Ill, Associate Judge, concur.


text:
    Jack GILLEN, Appellant, v. Paul D. VENABLE d/b/a Galaxy Publications and Ann Smart, Appellees.
    No. 76-30.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1976.
    Jack Gillen, in pro. per.
    William A. Jacob, Jacob & Benson, Orlando, for appellee.
   PER CURIAM.

Upon review of the record and briefs in this case we are of the opinion that the trial judge erred in denying appellant’s Motion to Vacate and Set Aside Judgment pursuant to Rule 1.540(b), Fla.R.Civ.P. The Amended Final Judgment entered below is vacated and the case remanded for further proceedings consistent with this opinion.

Reversed and remanded.

MAGER, C. J., and WALDEN and ALDERMAN, JJ., concur.


text:
    Alexander DiCAPRIO, Petitioner, v. John POLK, Sheriff of Seminole County, Florida and Abbott Herring, State Attorney, Eighteenth Judicial Circuit, Respondents.
    No. 76-1221.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1976.
    John W. Tanner, John W. Tanner, P. A., Daytona Beach, for petitioner.
   PER CURIAM.

The petitioner presently being held without bond in Seminole County on an alleged probation violation seeks release from such incarceration pursuant to sections 949.10 and 949.11, Florida Statutes, and has filed a petition for habeas corpus for such purpose. The petition alleged that he was being held without bond in Seminole County on a temporary revocation of his probation and that no parole revocation hearing has been held in accordance with section 949.11, Florida Statute. A rule to show cause having heretofore been issued and the State having failed to file any response whatsoever to the allegations of the petition on the date specified in such rule, it is the opinion of the court that defendant shall be forthwith released from incarceration in Seminole County and shall remain at liberty unless and until compliance with section 949.11, Florida Statute. Grose v. Stack, 286 So.2d 220 (Fla. 4th DCA 1973).

Petition for habeas corpus GRANTED.

MAGER, C. J., and DOWNEY and ALDERMAN, JJ., concur.

      . “949.11 Hearing. — Any person whose parole or probation agreement is revoked pursuant to § 949.10 shall be given a hearing pursuant to § 947.23 or § 948.06. The hearing shall be held within ten days from the date of such arrest, the provisions of § 947.23 or § 948.06 notwithstanding. Failure of the commission or the court to hold the hearing within ten days from the date of arrest shall cause the immediate release of such person from incarceration on the temporary revocation.”


text:
    Nancy D. DAVIS, Appellant, v. James Sheldon DAVIS, Appellee.
    No. 75-94.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 1976.

      Richard B. Moritz, Largo, for appellant.
    Ño appearance for appellee.
   PER CURIAM.

The final judgment of dissolution previously entered in this cause awarded the minor children to the wife and set forth certain visitation rights. The judgment also contained the following provisions:

“8. That neither party may remove the children from the State of Florida without the prior written consent of the other or leave of Court based upon a specified plan and return date.”

Thereafter, the wife filed a motion for approval of a plan to visit her brother with the children in the State of New York for several days in the summer. Since the husband did not agree with the trip, the matter was called up for hearing. The husband’s objection centered around his claim that the wife’s brother was a homosexual. A psychiatrist testified that even if it be assumed that the brother was a homosexual, it would not harm the children if they accompanied the wife for a few days’ visit at the brother’s home. Thereupon, the court approved ' the trip plan.

The following December the wife filed a motion requesting the court’s approval for her to take the children with her to visit her mother in South Carolina. Once again the husband declined to agree, so a hearing was held before a different judge. Presumably fed up with the haggling between the parties and without further testimony concerning the possible effects upon the children of their association with the wife’s brother, the court entered an order approving the trip to South Carolina but modifying the final judgment by directing that at no time or place should the wife permit the children to be exposed to the company of the wife’s brother and a cousin from Virginia who was also said to be a homosexual.

We find it necessary to reverse the order for two reasons. First, in the absence of a petition for modification and any testimony in support thereof, the court did not have the right to modify the final judgment. The association with the wife’s brother or cousin was not before the court at that time, since the proposed trip to South Carolina did not involve a visit with them. Second, another judge had already heard testimony and ruled that association with the wife’s brother for a few days would not adversely affect the children. There was no new evidence presented indicating a change in the circumstances which would dictate a contrary ruling a few months later.

The order modifying the final judgment is hereby reversed.

HOBSON, Acting C. J., and BOARD-MAN and GRIMES, JJ., concur.


author: BOARDMAN, Judge.

text:
    NATIONAL BANK OF SARASOTA, Appellant, v. J. T. DUGGER, Sr., et al., Appellees.
    No. 75-1580.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 1976.
    Phillip A. Wolff of Kirk, Pinkerton, Sparrow, McClelland & Savary, Sarasota, for appellant.
    Henry P. Trawick, Jr., of Millican, Traw-ick & Griffis, Sarasota, for appellees, J. T. Dugger, Sr., and John T. Dugger, Jr.
   BOARDMAN, Judge.

This is an appeal from a judgment holding that the perfected security interest of the appellant/defendant in certain tangible personal property is inferior to the purchase money mortgage of the appellees/plaintiffs, J. T. Dugger, Sr. and John T. Dugger, Jr. (Duggers), on the same personalty.

The facts of this case are not disputed. The Duggers sold a parcel of real property and a motel situate thereon to William and Regina Baker (Bakers). The Bakers executed a purchase money mortgage in favor of the Duggers on the realty and certain personalty consisting of furnishings, fixtures, and other items used in the motel. The mortgage was recorded in the official records January 18,1973. The Duggers did not file a financing statement on the personalty pursuant to the Uniform Commercial Code (UCC), and did not perfect their security interest. On April 24, 1973, appellant made an unsecured loan to the Bakers. The loan was renewed February 1, 1974, and at the same time the Bakers executed a second mortgage on the realty in favor of the appellant. This second mortgage was recorded February 6, 1974. On July 8, 1974,' the Duggers filed an action to foreclose their purchase money mortgage on the realty, and filed a notice of lis pendens listing the realty and the personalty included by paragraph 13 of the mortgage. Appellant was joined as a party defendant, and on July 10,1974, was served with a copy of the summons and notice of lis pendens. On July 11, 1974, appellant acquired a security agreement from the Bakers on the furniture, fixtures, and equipment, and on the inventory and soft goods used at the motel. The following day, appellant filed and recorded a financial statement with the Circuit Court of Sarasota County and with the Secretary of State on July 15, 1974.

This case is one of first impression in Florida. The question is whether an unper-fected security interest recorded prior to filing notice of lis pendens prevails over a subsequently perfected security interest. We have been unable to find a case from Florida, or any other jurisdiction, in which the precise issue presented here was considered and decided.

The trial court found that the question was governed by O'Bryan v. Dr. P. Phillips & Son, Inc., 1936, 123 Fla. 302, 166 So. 820. In O’Bryan a quitclaim deed was executed two weeks before notice of lis pendens was filed, but the deed was not recorded until j after the notice was filed. The Supreme Court of Florida held that the holders of the deed were bound by the lis pendens. We point out that in O’Bryan the holders of the deed waited seven years after the foreclosure and sale before asserting their interest, and the appellees’ title had vested by adverse possession. O’Bryan did not overrule Bowers v. Pearson, 1931, 101 Fla. 714, 135 So. 562, wherein the Florida supreme court held that the filing of notice of lis pendens affects only transfers and assignments made after commencement of the suit and after the notice is filed. We have no quarrel with the law pronounced in the cited cases, but we do not believe that these pre-Code decisions are applicable to the facts presented here.

This is not a typical priority dispute between security interests because the perfected security interest of the appellant is clearly in a superior position vis-a-vis the unperfected security interest of the Dug-gers. See F.S.A. 679.9-312(5)(b). The UCC has established a system according to which conflicting security interests in the same collateral are assigned priority in order of perfection, which can be accomplished by filing a financing statement. See F.S.A. §§ 679.9-302(1), 679.9-312(5)(b). The UCC priority scheme is purely a race provision— first in time, first in line. See J. White & R. Summers, Uniform Commercial Code 906 (1972). To reach the conclusion that the Duggers’ interest is superior to that of appellant, we would have to hold that merely filing notice of lis pendens is a method of perfection. We do not construe the UCC to so provide.

The Duggers contend that because the appellant had knowledge of their prior interest, its subsequently acquired interest is inferior. We disagree. Knowledge is irrelevant under the controlling Code provision. See J. White & R. Summers, supra, at 906 & n. 4 citing UCC § 9-312(5), comment 4, ex. 3.

We are impressed by the comments to Article 9 of the Code, specifically adopted in Florida, effective January 1, 1967, that the purpose of the UCC is to provide “a simple and unified structure [treating personal property security law] within which the immense variety of present-day secured financing transactions can go forward with less cost and with greater certainty.” F.S.A. § 679.9-101, comments. An introductory provision to the UCC states that the

(2) [underlying purposes and policies of this code are:
(a) To simplify, clarify and modernize the law governing commercial transactions;
(b) To permit the continued expansion of commercial practices through custom, usage and agreement of the parties;
(c) To make uniform the law among the various jurisdictions.
[F.S.A. § 671.1-102],

The legislature of this state by adopting the UCC and the comments thereto has elected to implement this purpose. In order to maintain nationwide consistency and uniformity in commercial transactions, we think that the better view is that the UCC perfection scheme is not subordinate to the doctrine of lis pendens.

We repeat that the sole issue presented here is whether the filing of lis' pendens suspends operation of the UCC procedure. We hold that the UCC priority scheme has precedence and that rights created by that system cannot be cut off or defeated by filing a notice of lis pendens. The Duggers have not filed a UCC financing statement although they have recorded their mortgage on the personalty. Their interest would be superior to another un-perfected security interest later in time, but not against any perfected security interest. Filing notice of lis pendens does not of itself create any interest in the property, nor does it create any superior rights for the litigant who files the notice. Freligh v. Maurer, Fla.App.2d, 1959, 111 So.2d 712; 1958 Op.Atty.Gen., 058-135, filed April 21, 1958. Lastly, we must then look to the underlying interests of the appellant and the Duggers. The Duggers have an unper-fected security interest and the appellant has a perfected security interest. Consequently, the appellant’s security interest is superior.

We, therefore, reverse the order of the trial court and remand for the entry of an appropriate order consistent with this opinion.

REVERSED and REMANDED.

HOBSON, Acting C. J., and GRIMES, J., concur.

      . Appellant is not a lien creditor. See F.S.A. §" 679.9-301(3).


author: PEARSON, Judge.

text:
    Lillian WILISCH, Appellant, v. Theodore WILISCH, Appellee.
    Nos. 75-1256 to 75-1261.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.

      Helliwell, Melrose & DeWolf and William E. Sadowski, Miami, for appellant.
    Headley & Sudduth; Sam Daniels, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PEARSON, Judge.

The appellant, Lillian Wilisch, is the former wife of the appellee, Theodore Wilisch. She was the plaintiff in the trial court in an action for partition of real property which had been held as an estate by the entirety but which, subsequent to a dissolution of marriage entered in 1971, had been held in common. As will later be discussed in the statement of facts, several appeals by Mrs. Wilisch have been consolidated here. Although five points are presented and will be dealt with, the most important is whether the trial court erred in denying partition.

In approaching a statement of the facts, it is helpful to consider the circuit court cases separately.

In 1971, the wife, after some 35 years of marriage, filed an action for divorce against defendant. Her complaint did not seek findings of special equities, contributions relative to two parcels of real property then owned by the parties, or a partition of the properties.

At the time of their divorce, the parties owned two parcels of real property. The fist was their marital residence, which includes an efficiency apartment that produces rental income. The second was a twenty-unit apartment building, which naturally produces substantial rental income.

The final judgment of divorce does not contain any findings of special equities of the parties in, or to, the two parcels of real property they owned jointly while married. The court did not reserve jurisdiction to consider such matters. The court did charge each parcel with provisions for the division of the use and income of the properties, as follows: (1) the wife was awarded “permanent exclusive use of the home of the parties;” (2) the husband was to manage a twenty-unit apartment house owned by the parties and was entitled to a salary of $388.44 a month — the same amount the wife testified she was earning; and (3) the apartment rentals and the rent from the efficiency unit at the home were to be equally divided after deducting expenses (including the husband’s salary). No appeal was taken from the final judgment of divorce.

Beginning in May of 1972, disputes arose between the parties regarding the former husband’s management of the apartment building as a result of his alleged failure to comply with the terms of the final judgment. The former wife filed a petition for modification, a motion for order adjudging defendant in contempt and an amended petition for modification. In the amended petition, she sought payment for her share of the profits from the operation of the apartment building. The court granted plaintiff’s petition and ordered the defendant to comply with the terms of the final judgment and to pay plaintiff her share of the apartment income.

In September, 1972, Mrs. Wilisch brought an action for a partition of the two parcels of real property which she and her husband owned as tenants in common, with each owning an equal, undivided interest. The defendant’s answer contained a simple denial of some of the allegations in the complaint and, furthermore, asserted as an affirmative defense “that the rights of the parties as to the two parcels were determined by this Honorable Court in its Final Decree of Divorce . . and that “the plaintiff is estopped from maintaining the instant action [to seek a partition].”

On February 4,1974, after an evidentiary hearing, the court entered an order in which he ruled that:

1. The court would permit a partition but would not allow a sale of the property on the Courthouse steps.
2. The court would appoint a Commission consisting of three individuals.
3. The Commission was to present its recommendations after considering the Divorce Decree, the circumstances surrounding the Divorce Decree and such equities and contributions as to which the parties may present evidence.

The plaintiff, former wife, moved the court for permission to amend her complaint for partition in order to pray for consideration in the partition judgment of the money she claimed that the defendant had not paid her from the proceeds of the operation of the apartment house. The motion to amend the complaint was denied and error is assigned upon this ruling.

After a hearing at which the parties presented both argument and evidence, the commissioners submitted their recommendations. Two of the commissioners recommended a sale of the properties and a distribution of the proceeds so that the former wife would receive a slightly smaller percentage of the proceeds of the sale than the percentage of the former husband. The third commissioner recommended a distribution in kind with the wife receiving only the residence property.

On September 25,1974, after the commission had submitted its reports, the former husband filed a petition for modification in the divorce case. The relief sought by this petition was a modification of the final judgment of divorce to include findings of special equities of the parties in relation to the two parcels of property involved in the partition suit.

The sole ground for this petition was the defendant’s contention that the plaintiff’s testimony taken in the course of the partition case concerning her income at the time of that hearing “was at such wide variance from that sworn to by the Plaintiff at the final hearing for divorce as to have been designed to consciously mislead this Honorable Court in the entry of its Final Judgment of Divorce,” and, consequently, “. as to have amounted to a fraud upon the. Court.” Furthermore, it argued that testimony in the partition proceeding indicated, that the two properties had been purchased j through the defendant’s efforts and resources, that he had intended for the apartment building to replace ¿he business in which he had been involved until that time and from which he had derived his support. Plaintiff moved to strike the petition on the ground that it was barred by RCP 1.540 because it was not filed within one year from the entry of the final judgment. Error is assigned upon this ruling.

From this point forward, the court treated the partition proceeding and the modification proceeding together and consolidated them. All subsequent pleadings, orders, etc., were filed under both case numbers.

Thereafter, plaintiff filed a motion to disqualify the judge upon the ground that he was proceeding upon his memory of the testimony in the divorce case prior to the final judgment and, therefore, was a witness in the cause. No transcript of the testimony was available.

Ultimately, on July 3, 1975, the court entered an amended order denying plaintiff’s claim for partition and her petition for payment of her accrued share of the profits from the apartment house, and granting the defendant’s petition for modification of the judgment of divorce and an order denying plaintiff’s motions for rehearing and for disqualification. The judgment provides:

* * * * * *
“In the alternative and in the event the parties do not comply with the above Order within thirty (30) days from the date hereof, the Petition for Partition will be and the same is hereby denied, and the final Decree of Divorce shall be, and is hereby amended to provide that the Husband is allowed a salary for the management and operation of the rental apartments of $541.67 per month, commencing on the date the aforesaid Final Decree of Divorce was originally signed.
“All future income from the rental apartments shall be paid to the Husband until all monies due him under this Order shall have been paid.
“Except as otherwise herein provided, all pending Petitions and Motions filed in these causes should be, and the same are hereby denied.
“The Court will entertain a Motion by the Husband for attorneys fees and to tax costs and retain jurisdiction, to implement the terms of this Order.”
******

Lillian Wilisch has presented six points. The first urges that it was error to deny partition to her as a joint owner of one-half of the property. The second claims that the court erred in denying plaintiff’s motion for disqualification of the trial judge. The third urges that it was error to enter an order reserving jurisdiction to allow the former husband an attorney’s fee. The fourth assigns as error the denial of the wife’s motion to amend her complaint to ask for consideration of the claimed delinquent payments due from the operation of the apartment house. The fifth urges that it was improper for the court to allow an increased amount to the husband for the management of the apartment house (a) retroactively to the time of the judgment of divorce, and (b) for future payments. The sixth point is moot.

As to the partition of the two parcels of real property, we feel, as evidently the trial judge did, that such a solution would be the best way to terminate the litigation between these two unfortunate persons. However, the trial judge, in his amended order, refused to order partition. The law would have supported an order partitioning these properties to the parties on a fifty-fifty basis. See the general rule in Kollar v. Kollar, 155 Fla. 705, 21 So.2d 356 (1945). However, the question of the basis for the partition is moot in view of the fact that partition has been denied. The question is: Was it error to refuse to order a partition? We hold that the trial judge must be sustained on this aspect of his judgment because each of the properties was, under a reasonable interpretation of the divorce judgment, charged with special claims arising out of that judgment. In the instance of the residence property, the court charged the property not only with the right of the wife to live therein, which right she may have been deemed to have waived, but also charged the property with the husband’s right to collect the rents from the efficiency apartment. In the instance of the apartment house, the property was charged with the right of the husband to maintain it as his business, that is, to manage it and deduce a salary therefrom.

It has been established in many cases that the court may refuse partition and may not partition over objection of the parties benefited where property is charged with rights established in a judgment of dissolution of marriage. See Bergh v. Bergh, Fla.App.1961, 127 So.2d 481; and Banfi v. Banfi, Fla.App.1960, 123 So.2d 52.

It was not error for the trial judge to deny the motion for his disqualification. The former wife relied upon the provisions of Fla.Stat. § 38.02, which is, in pertinent part:

“In any cause in any of the courts of this state any party to said cause . may at any time before final judgment . show by a suggestion filed in the cause that the judge before whom the cause is pending . . . is a material witness for or against one of the parties to said cause . . . Such suggestions shall be filed in the cause within thirty days after the party filing the suggestion, or his attorney . . . learned of such disqualification ... If the truth of any suggestion appear from the record in said cause, the said judge shall forthwith enter an order reciting the filing of this suggestion, the grounds of his disqualification, and declaring himself to be disqualified in said cause ... If the judge finds that the suggestion is true, he shall forthwith enter an order reciting the ground of his disqualification and declaring himself disqualified in the cause; if he finds that the suggestion is false, he shall forthwith enter his order so reciting and declaring himself to be qualified in the cause.”
* * * * * *

A trial judge does not become a material witness in a cause merely because he has knowledge of what occurred before him in a prior proceeding. See Wingate v. Mach, 117 Fla. 104, 157 So. 421 (1934); and cases cited at 22 A.L.R.3d 1198 et seq. Cf. State ex rel. Ferrara v. Sandler, 152 Fla. 517, 12 So.2d 298 (1943).

There is no basis in this record for the allowance of an attorney’s fee to the former husband in these combined proceedings. There was no partition; therefore, there is no statutory authority for an attorney’s fee even if the court had proceeded under Fla.Stat. § 64.081. If the judgment is considered as a modification of the judgment in dissolution of marriage, the financial resources of these parties do not support an award of an attorney’s fee to the husband. Cf. Spears v. Spears, Fla.App. 1975, 311 So.2d 397. We note, further, in support of our holding, that the husband’s pleadings do not contain a prayer for attorney’s fees.

No reversible error appears upon the court’s denial of plaintiff’s motion to amend her complaint for partition because we have held that it was not error to deny the partition of the properties.

The court did modify the final judgment dissolving the marriage. In the order appealed, he increased the former husband’s “take” or “salary” from the rentals of the apartment house from $388.44 per month to $541.67 per month. The court made its ruling retroactive to the date of the judgment dissolving the marriage.

We hold that the court did err in its modification of the final judgment of dissolution. The former husband argues that the modification was properly made pursuant to Fla.Stat. § 61.14. This statute does not authorize a trial judge to retry the financial provisions of a judgment dissolving a marriage. The court may, upon a showing that “the circumstances or the financial ability of either party has changed,” decrease or increase “the amount of support, maintenance, or alimony.” The final judgment dissolving the marriage contained only the following provisions relative to support, maintenance or alimony: (1) The wife was awarded the permanent, exclusive use of the home and the husband was directed to pay for repairs necessary at that time out of the rental income from the jointly-owned properties. (2) The wife was awarded $4,500 as lump sum alimony. The remainder of the judgment pertained to a statement of the joint ownership of the properties and a settlement of the management of the properties and division of the profits from the properties.

In the amended order appealed, the court found that the wife’s testimony at the time of the dissolution of marriage in 1971, concerning the amount of her earnings, was incorrect. The record of the trial of the modification petition conclusively shows that she gave the amount of her net or “take home” salary rather than the amount of her gross salary. The court also found that the amount of her present salary is substantially more than it was at the time of the dissolution. These findings are not a sufficient basis for a revision of the parties’ rights in the jointly-held property. The court may, upon a showing of change of circumstances upon a proper petition, change the amount allowed as a management fee for jointly-held property. Here, the trial court has attempted, by a retroactive order, to amend the judgment nunc pro tunc to provide that the husband may increase his management fee from $388.44 per month to $541.67 per month and that the husband may keep all rental income until he has made up the accrued difference between the two amounts. The husband did not prove a change in circumstances or that a greater management fee was required by changed conditions.

The accrued amounts payable monthly to the former wife from the profits of the jointly-held properties are vested in her. They may not be cancelled or amended except upon a showing of fraud pursuant to RCP 1.540. Cf. Thomas v. Greene, Fla. App.1969, 226 So.2d 143. The former husband’s petition to modify cannot be considered a petition for relief pursuant to RCP 1.540 because it was filed long after the one year period allowed in the rule and because it is insufficient to allege fraud. Further, the record does not support a finding of fraud.

We conclude, therefore, that the trial judge was without jurisdiction to amend the judgment retrospectively as to the rights of the parties in and to the jointly-owned properties. We conclude further that there is no basis in the record for a prospective modification of the judgment of dissolution.

The amended order dated July 3, 1975, is reversed and the cause remanded with directions to the court to take testimony upon, and to require an account of, the unpaid amounts due the former wife under the judgment and, upon approval of the account, to order the payment of the sums due to the appellant, former wife, and to carry out such further proceedings as are not inconsistent with the views expressed herein.

Reversed and remanded with directions.

      . The trial judge, in his order, offered a partition if the parties would agree to it. This partition followed the recommendation of the third commissioner as to an 80%/20% distribution of the property. The proposal was never acted upon.

      . Prior to June 6, 1975, the statute read:
      “When the parties have entered into, or hereafter enter into, an agreement for payments for, or instead of, support, maintenance, or alimony, whether in connection with a proceeding for dissolution or separate maintenance or with any voluntary property settlement, or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party has changed since the execution of such agreement or the rendition of the order, either party may apply to the circuit court of the circuit in which the parties, or either of them, resided at the date of the execution of the agreement or reside at the date of the application, or in which the agreement was executed or in which the order was rendered, for a judgment decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances and the financial ability bf the parties, decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the agreement or order.”
      * * * * # *


text:
    Ronald Allen WILLIAMS and Gregory Jean Brown, Appellants, v. The STATE of Florida, Appellee.
    No. 75-1441.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Gordon v. State, 312 So.2d 809 (Fla.3d DCA 1975).


text:
    Dona Kay WATERMAN, Appellant, v. Atton PIERSON and Dora Pierson, his wife, Appellee.
    No. 75-1476.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Sandow & Brod, Miami, for appellant.
    Horton, Perse & Ginsberg, Miami, for appellee.

      Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Affirmed upon the authority of the rules stated in Daniell v. Sherrill, Fla.1950, 48 So.2d 736, 739-740, 23 A.L.R.2d 1410, and the cases and other authorities cited therein.


text:
    C. M. I. and A. R., Juveniles, Appellants, v. The STATE of Florida, Appellee.
    No. 75-1512.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Phillip A. Hubbart, Public Defender, and Julian Mack, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    .Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Appellants were adjudicated delinquent by the Circuit Court Juvenile Division of Dade County. The adjudication was based upon a finding that C. M. I. was guilty of larceny and buying, receiving or concealing stolen property. The court found that A. R. was delinquent because of his participation in buying, receiving or concealing stolen property.

Both appellants contend that the court erred in adjudicating them delinquent because there was insufficient proof adduced at trial to establish an essential element of the offense, to-wit, that appellants had knowledge that the property was stolen.

We have carefully reviewed the record on appeal and have concluded that there is no merit in such contention. State v. Graham, 238 So.2d 618 (Fla.1970).

Appellant, C. M. I., raises an additional point in his appeal. He argues that the trial court erred in adjudicating him delinquent because he was found guilty of both larceny and buying, receiving or concealing stolen property. We agree and reverse that portion of the order appealed that finds him guilty of larceny. However, the adjudication of delinquency with reference to buying, receiving or concealing stolen property stands affirmed. A conviction of both larceny and buying, receiving or concealing stolen property is inconsistent in law where, as here, the same property is involved. The state concedes that this was error. Bargesser v. State, 95 Fla. 401, 116 So. 11 (1928); R. A. B. v. State, 316 So.2d 312 (Fla.3d DCA 1975).

Affirmed in part and reversed in part.


text:
    Bernard O’SULLIVAN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1549.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Phillip A. Hubbart, Public Defender, and Karen Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Sidney M. Pertnoy, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

Appellant, Bernard O’Sullivan, appeals from a judgment and sentence entered after appellant was found guilty in a non-jury trial of buying, receiving or concealing stolen property.

O’Sullivan contends that the trial court erred in finding him guilty because there was insufficient evidence adduced to support the conviction. We do not agree.

The necessary ingredient of the offense of receiving stolen property, knowing it to have been stolen, is knowledge on the receiver’s part at the time he receives the thing stolen, that the property is stolen, or of such fact as would put a person of ordinary intelligence and caution on inquiry. Seymour v. State, 246 So.2d 155 (Fla.3d DCA 1971).

It is fundamental that an appellate court does not sit as a trier of fact. Where there are conflicts in the evidence in a non-jury trial, it is within the province of the trial judge to reject any testimony he finds to be untrue and to accept and rely upon that which he finds to be worthy of belief. Hoover v. State, 212 So.2d 95 (Fla.3d DCA 1968). Accord Crum v. State, 172 So.2d 24 (Fla.3d DCA 1965).

The record discloses that the case was fully and fairly tried, and that the judgment is supported by the evidence. No reversible error having been made to appear, the judgment and sentence are affirmed.

Affirmed.


author: HENDRY, Judge.

text:
    EGIDI INDUSTRIAL PARK CORPORATION, a Florida Corporation, Appellant, v. WIDE OPEN SPACES, INC., a Florida Corporation, and Second National Bank of North Miami, a United States Banking Corporation, Appellees. EGIDI INDUSTRIAL PARK CORPORATION, a Florida Corporation, Appellant, v. WIDE OPEN SPACES, INC., et al., Appellees.
    Nos. 75-1615, 75-1816, 76-119 and 76-120.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Leo Greenfield, North Miami, for appellant.
    Michael Colodny, North Miami, Jerald I. Rosen, Coral Gables, for appellees.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   HENDRY, Judge.

Appellant, defendant and cross-claimant below, brings these consolidated appeals from the following three orders of the trial court: (1) an order dated September 25, 1975, granting appellee’s Second National Bank of North Miami (Bank), defendant and cross defendant below, motion to dismiss appellant’s cross-claim, (2) an order dated December 22, 1975, denying appellant’s motion for supersedeas and setting of supersedeas bond, and (3) an order dated December 23, 1975, denying appellant’s motion for cancelling and vacation of sale. Further, appellant appeals from an adverse final judgment dated October 24, 1975, in favor of appellee Wide Open Spaces, Inc.

Appellant purchased certain real property from appellee Wide Open Spaces, Inc., by paying cash in the amount of $148,000 and giving a purchase money note and mortgage for the amount of $162,000. Appellee Bank held a junior security interest in the property. Following appellant’s default on its debt to appellee Wide Open Spaces, Inc., it filed a foreclosure action on the mortgage, joining appellee Bank as an inferior lien holder.

Appellant’s answer to the foreclosure action contained a cross-claim against appel-lee Bank for, among other things, equitable relief seeking specific performance of an oral agreement, between the Bank and appellant, whereby the Bank was to advance it funds for certain purposes. Among these purposes, were funds to pay the debt to appellee Wide Open Spaces, Inc. Appellee Bank’s motion to dismiss the cross-claim was granted and the trial court specifically found that appellant had an adequate remedy at law. It should be noted that appellee Wide Open Spaces, Inc., was not a party to the oral agreement between appellant and appellee Bank.

After a hearing, appellee Wide Open Spaces, Inc., moved for final summary judgment which was granted on October 24, 1976. Subsequently, the trial court denied appellant’s motions for supersedeas and setting supersedeas bond and for cancellation and vacation of the foreclosure sale. From these orders and final judgment, appellant appeals.

Appellant contends, basically, that the trial court’s orders and final judgment were clearly erroneous and manifestly against the weight of the evidence and the applicable law.

Judgments and orders of the trial court come to this court clothed with a presumption of correctness and the burden of showing error is on the one who asserts it. See, e. g., Fernandez v. Arocha, 308 So.2d 45 (Fla.3d DCA 1975); Leggett v. Seaboard Coast Line R. Co., 221 So.2d 16 (Fla.App.1st DCA 1969); and 2 Fla.Jur., Appeals §§ 314 and 316. In the instant case, we have carefully considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the orders and final judgment appealed are affirmed,

Affirmed,


text:
    PROTECTIVE NATIONAL INSURANCE COMPANY OF OMAHA, Appellant, v. Bienvenido BERGOUIGNAN and Marta Bergouignan, his wife, Appellees.
    No. 76-85.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.

      Rentz, McClellan & Haggard, Miami, for appellant.
    Samuel J. Hannon, Miami, for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

This interlocutory appeal is from a summary judgment as to liability. The plaintiffs, Bienvenido Bergouignan and Marta Bergouignan, claimed personal injury protection benefits from the insurance company of Mario Cuellar. Cuellar was the owner of a vehicle in which the Bergouignans were passengers. Bienvenido Bergouignan owned an uninsured motor vehicle.

The defendant insurance company maintained that both Bienvenido and Marta were barred from personal injury protection benefits because of Bienvenido’s ownership of the uninsured motor vehicle. The trial judge, in his summary judgment, held that neither of the Bergouignans was barred.

On appeal, the insurance company admits the correctness of the trial judge’s holding as to Marta Bergouignan but maintains that Bienvenido is barred pursuant to Pla.Stat. § 627.736. The trial judge was correct as to Marta Bergouignan. See Gateway Insurance Company v. Butler, Fla. App.1974, 293 So.2d 738. As to Bienvenido Bergouignan, the statute clearly excludes him as the owner of an uninsured motor vehicle.

Affirmed in part, reversed in part and remanded.


author: HOBSON, Judge.

text:
    Frank PEPPEREL, Appellant, v. STATE of Florida, Appellee.
    No. 75-714.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 1976.
    John B. Cechman of Goldberg, Rubinstein & Buckley, Fort Myers, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

Appellant appeals a judgment and sentence on a conviction of lewd and lascivious conduct upon a female child under the age of fourteen without intent to commit rape.

The original information charged the appellant with one count of involuntary sexual battery upon a person twelve years of age and in the process thereof used or threatened to use a deadly weapon or actual physical force likely to cause serious personal injury. Count two charged that appellant did unlawfully handle, fondle or make an assault upon a female child under the age of fourteen in a lewd, lascivious or indecent manner without intent to commit rape. On the day before trial the state filed an amended information, without the consent of the court, amending count one of the original information to involuntary sexual battery using in the process thereof physical force and violence not likely to cause serious personal injury. The amended information restated count two in the identical language as was set forth in the second count of the original information.

The amended information was served on appellant the morning of trial. The appellant immediately orally moved to quash the amended information, which was granted by the court. Over the appellant’s objections the trial proceeded on the original information. At the close of the state’s case the court granted appellant’s motion for directed verdict as to count one but denied his motion as to count two. The jury returned a verdict of guilty as to count two and thereafter he was adjudged guilty and sentenced.

It is the appellant’s position that the court erred in refusing to quash the original information because the filing of the amended information vitiated the original information the same as if it had been formally dismissed by order of the court.

In support of the appellant’s contention he cites Wilcox v. State, Fla.App.4th 1971, 248 So.2d 692. The Wilcox case is readily distinguishable from this case. In Wilcox the defendant was charged with having received or aided in the concealment of certain stolen property which was described as a 1968 Cadillac Eldorado belonging to the Ft. Lauderdale Lincoln-Mercury Company. Thereafter the state filed a motion to amend the information, which motion was granted by the court. The amended information charged the defendant with having received or aided in the concealment of stolen property described as a 1968 four-door sedan DeVille belonging to Slaton Rent-A-Car Company. Upon oral motion by the state to withdraw the amended information, the trial court entered an order granting the same. When the case was called for trial the defendant objected to being tried on the original information. The objection was overruled and the defendant was tried and found guilty of the charge contained in the original information.

In Wilcox the court stated:

“A comparison of the amended information with the original indicates that the amended information charges a totally different crime than that charged in the original information.”
* * * * * *
“The filing of an amended information which purports to be a complete restatement of an offense has the effect of vitiating the original information as fully as though it had been formally dismissed by order of court. See Alvarez v. State [157 Fla. 254, 25 So.2d 661] supra, and Armstrong v. United States, 9 Cir. 1926, 16 F.2d 62. Consequently when the state announced its intent to abandon the amended information and secured an order permitting same, the state was left without a charge against the defendant, and the trial court erred in requiring the defendant to proceed to trial without the filing of a new information and compliance with all procedural steps that would be pertinent to an original information.
“We cannot sanction the procedure that was here followed as harmless error. Aside from the theoretical difficulty in holding that the withdrawal of the amended information ‘revives’ the original information, the procedure here employed contains a serious potential for the imposition of surprise and the consequent denial of a fair trial.”

Although the amended information as to count one herein charged a different crime than that charged in the original information, it charged the identical crime in count two that was charged in the original information. The appellant was granted a directed verdict as to count one in this case; therefore, he cannot be heard to complain. However, as count two of the amended information was identical to count two of the original information, the appellant could not have been surprised and consequently was not denied a fair trial. Moreover, the state failed to acquire the court’s permission to file the amended information.

The other points on appeal have been carefully considered and found to be without merit.

For the foregoing reasons the judgment and sentence appealed are AFFIRMED.

MeNULTY, C. J., and GRIMES, J., concur.


author: DOWNEY,. Judge.

text:
    Ira Belle BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 74-1203.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Raymond E. Ford, Fort Pierce, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, by C. Marie Bernard, Asst. Atty. Gen., and Marsha G. Madorsky, Legal Intern, West Palm Beach, for appellee.
   DOWNEY,. Judge.

By information the State of Florida charged Mattie Lou Thompson, Ira Belle Bryant and Walter J. Bryant with (1) bribery, and (2) with aiding or assisting in the setting up, promoting or conducting of a lottery.

Mattie Lou Thompson’s conviction of the second count was affirmed by this court on March 5, 1976, in Case No. 74-1321, 330 So.2d 33. The conviction of Walter J. Bryant on both counts was affirmed this date in Case No. 74-1202.

Our consideration of the record in this case leads us to the conclusion that there was sufficient evidence, if believed by the jury, to find appellant guilty of Count II of the information. However, there is absolutely no evidence of any sort reaching the quality necessary to convict appellant of the bribery count.

Accordingly, the conviction and sentence on Count I for bribery is reversed and the conviction and sentence on Count II is affirmed.

AFFIRMED in part and REVERSED in part.

WALDEN, C. J., and ULMER, RAY E„ Jr., Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Tommy Lee CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 75-550.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., and Robert L. Bogen, Legal Intern, West Palm Beach, for appellee.
   DOWNEY, Judge.

Once again we feel compelled to reverse a judgment and sentence of conviction because the prosecution transgressed appellant’s rights at trial by adducing testimony at trial that appellant invoked his Fifth Amendment privileges after being arrested and refused to talk to the police.

After being arrested at the scene the police advised appellant of his constitutional rights. He was then asked what he was doing hiding on a canal bank in close proximity to the scene of the robbery and near some of the incriminating physical evidence. Appellant responded that he had a good reason to be there but preferred not to discuss it with the police. The arresting officer testified to the foregoing conversation without objection. Nevertheless, we think this is fundamental error. Jones v. State, 200 So.2d 574 (Fla.3d DCA 1967).

This is but another variation of the rule laid down by the Supreme Court of Florida in Bennett v. State, 316 So.2d 41 (Fla.1975). See also Jones v. State, 200 So.2d 574, above; Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976), and Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976). The state argues that the Bennett rule is not applicable because appellant did not stand mute— he did talk to the police. We reject this contention. Appellant told the police he had a good reason for being there but would tell them nothing further. In other words, he chose to stand on his Fifth Amendment privilege. As the Court stated in Miranda v. Arizona, 384 U.S. 436, 468 (note 37), 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694:

“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.” (Emphasis added.)

Accordingly, the judgment and sentence appealed from are reversed and the cause is remanded for a new trial.

WALDEN and CROSS, JJ., concur.


author: WALDEN, Chief Judge.

text:
    Alvin Lee GARRETT, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-620, 75-1009.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Richard L. Jorandby, Public Defender, and Frank Kessler and Mitchell J. Beers, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard and Basil Diamond, Asst. Attys. Gen., West Palm Beach, for appellee.
   WALDEN, Chief Judge.

Defendant was convicted of larceny of an automobile (Case No. 75-620). Defendant was then convicted of being a subsequent felony offender (Case No. 75-1009). He appeals both of these convictions in this consolidated appeal.

First, we reverse defendant’s conviction of larceny of an automobile on two grounds. First, the court reversibly erred in permitting Meg Burke to testify, despite the fact that her name was not furnished to the defense until the day of trial. The court failed to make adequate inquiry into the circumstances surrounding the state’s . failure to provide the witness’ name before the day of trial. Richardson v. State, 246 So.2d 771 (Fla.1971).

Secondly, the trial court reversibly erred in denying defendant’s requested jury instruction on temporary unauthorized use of a motor vehicle. Temporary unauthorized use is a necessarily lesser included offense of larceny of an automobile, Cox v. State, 243 So.2d 611 (3rd D.C.A.Fla.1971); Wright v. State, 216 So.2d 229 (2nd D.C.A. Fla.1968). Being a necessary included lesser offense, Brown v. State, 206 So.2d 377 (Fla.1968), the trial court was required to give instructions thereon, State v. Terry, Fla., 336 So.2d 65. Opinion filed February 25, 1976.

We also reverse defendant’s conviction as a subsequent felony offender. The court should have granted defendant’s motion to dismiss this information. His being a subsequent felony offender was based upon his conviction of larceny of an automobile, from which he had taken an appeal (Case No. 75-620, the other portion of this consolidated appeal, supra). Since defendant had taken an appeal, his conviction of larceny of an automobile was not final and, therefore, could not be relied upon to convict him as a subsequent felony offender until affirmed by the appellate court. Joyner v. State, 158 Fla. 806, 30 So.2d 304 (1947). Defendant’s second point in this case is moot in light of the foregoing.

In conclusion, we reverse defendant’s convictions of larceny of an automobile and of being a subsequent felony offender and remand for a new trial, as to case No. 620 only.

REVERSED AND REMANDED FOR A NEW TRIAL IN CASE NO. 620.

REVERSED AS TO CASE NO. 1009.

DOWNEY, J., and ULMER, RAY E., Jr., Associate Judge, concur,


text:
    Eddie Allen MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 75-1520.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.

      Richard L. Jorandby, Public Defender, and James R. Bean, III, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

This appeal involves the propriety of the trial court’s granting the state’s motion for additional peremptory challenges over and above those allowed by Fla.R.Crim.P. 3.350.

Appellant was charged in a single count information with second degree murder. He was convicted of aggravated assault and sentenced to five years in prison.

During the voir dire examination of the jury at a point where the state had exhausted its ten peremptory challenges, the state moved the court to grant each side three additional peremptory challenges. Appellant, who at that time had only used five of his peremptory challenges, objected to the motion. It appears that since the homicide allegedly occurred during a homosexual advance by the victim upon appellant, the trial court felt that there were “extenuating circumstances” provided by subsection (e) of Rule 3.350 enabling him to authorize additional peremptory challenges.

In the circuit court both the court and the parties all treated this case as though subsection (e) of the rule was applicable. On appeal, the parties continue to treat this case as though subsection (e) applies, appellant relying upon Sanders v. State, 328 So.2d 268 (Fla. 1st DCA 1976). Our reading of the entire rule leads us to conclude that subsection (e) does not apply because there was only one information and only one count therein. In our view subsection (a) of the rule applies to the present case. Sanders v. State, supra, concerned a two count information and thus involved subsection (e). However, one of the principles set forth in the Sanders case pertains equally to subsection (a), and it is that principle which requires reversal here. Thus, the trial court erred by granting the state more than the ten peremptory challenges permitted by subsection (a) of the rule.

Accordingly, we reverse the judgment and remand the cause for a new trial.

CROSS and ALDERMAN, JJ., concur.

      .“If an indictment or information contains two or more counts or if two or more indictments or informations are consolidated for trial, the defendant shall be allowed the number of peremptory challenges which would be permissible in a single case, but in the interest of justice the judge may use his judicial discretion in extenuating circumstances to grant additional challenges to the accumulate maximum based on the number of charges or cases included when it appears that there is a possibility that defendant may be prejudiced. The State shall be allowed as many challenges as are allowed the defendant.”

      . “Each party shall be allowed the following number of peremptory challenges: “(a) Ten, if the offense charged is punishable by death or imprisonment for life; * * * ”

      . The trial court has no discretion to grant the state a greater number of peremptory challenges than any part of Fla.R.Crim.P. 3.350 permits. See, generally, cases cited at Annot: Peremptory Challenges — Number, 95 A.L.R.2d 957, § 7.


text:
    STATE of Florida, Appellant, v. Columbus JACKSON, Appellee.
    No. 76-1039.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Robert L. Shevin, Atty. Gen., Tallahassee, David H. Bludworth, State’s Atty., and John Scarola, Asst. State’s Atty., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Steven H. Parton, Sp. Asst. Public Defender, for appellee.
   PER CURIAM.

AFFIRMED.

CROSS and ALDERMAN, JJ., concur.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge

(dissenting).

This appeal is from the following order:

“This matter was before the Court on the Defendant’s Motion to Suppress April 21st, 1976. The Defendant was represented by Assistant Public Defender David Horvath and the State was represented by Assistant State Attorney Jack Scarola.
“The facts disclose that a West Palm Beach Detective assigned to the Vice Section of the Police Department received information that the defendant was dealing in narcotics. The officer looked through his departmental records and located a parking meter violation. The Court does not recall how current the parking meter warrant was, but it appeared that it was not a fresh warrant. The officers waited until the defendant arrived home before serving this parking meter warrant. Following the arrest, they told the defendant that they had information that he was dealing in narcotics and asked if he would give permission for them to look around. The defendant agreed that they could look around and they subsequently discovered the materials that constitute the basis of this prosecution.
“The State concedes the pretextual aspects of this search.
“A number of interesting search and seizure doctrines are involved. For example, not every illegal arrest will vitiate a subsequent voluntary consent to search; Vice Officers may not use a pretextual misdemeanor arrest, ordinarily reserved to uniformed police officers, in order to search a suspect; officers should not use an arrest warrant for the person as a substitute for an opportunity of gaining entrance into a home in order to search (although there is enough case authority that it can be said that sometimes they can and sometimes they cannot); submission to the majesty or the authority of a law is also a factor bearing on consent; and, finally, there is the factual consideration of whether or not the totality of the circumstances perceived by the Trial Court reflects police harassment and overreaching or reflects only police ingenuity and obedience to their mandate to enforce the laws.
“Upon review of the arguments and authorities presented orally and by mem-oranda, the Court is of the opinion that this is another one of those very close cases so common in this area of the law.
“Based on the Court’s perception of the evidence and authorities before it, the Court limits its ruling to the peculiar and special facts of this precise case and finds that the evidence seized should be suppressed for the purpose of the substantive charge, but that the exclusionary rule should not be applied insofar as the evidence relates to the Violation of Probation.
“ACCORDINGLY, it is so ordered.
“The Court attaches to this Order and incorporates by reference the memoranda filed by the litigants as the appropriate applicable law as cited therein.
“DONE AND ORDERED at West Palm Beach, Palm Beach County, Florida, this 11th day of May, 1976.”

On appeal it is still undisputed that (a) the police located the arrest warrant for the parking meter violation in order to have a reason for going to appellant’s home; (b) the arrest under that warrant was valid; and (c) the defendant knowingly and voluntarily gave the police permission to search his residence.

Since the Constitutions of the United States and the State of Florida prohibit only unreasonable searches, the appellate question is whether the appellee’s consent to the search rendered it reasonable despite the reason the police served the arrest warrant when they did. I think it does.

“Under the Fourth Amendment the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, may not be violated. But a defendant can consent to a search of his property, and a search made as a result of such consent or with his acquiescence does not violate this amendment.” United States v. Jones, 204 F.2d 745, 749 (7th Cir. 1953).

See too James v. State, 80 So.2d 699 (Fla. 1955).

I am aware of the heavy burden the state must meet in proving a defendant consented to a search. See Bailey v. State, 319 So.2d 22 (Fla.1975); Mobley v. State, Fourth District Court of Appeal, 335 So.2d 880, 1976. But in the present case the appellee, during the hearing on his motion to suppress, unequivocally and unhesitatingly acknowledged his completely voluntary consent to the search in question. Such acknowledgment is proof above and beyond the burden set forth in the Bailey and Mobley cases, especially since appellee also acknowledged he is no novice in criminal proceedings.

I would distinguish Harding v. State, 301 So.2d 513 (Fla.2d DCA 1974), upon which appellee relies for affirmance, on the following grounds: (a) the arrest warrant served in that case was for a person other than Harding; (b) Harding did not consent to the search.

For the foregoing reasons, I would reverse the order under review and remand the cause for further proceedings.


author: JOHN GALE, Associate Judge.

text:
    John Henry MOBLEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-721.
    District Court of Appeal of Florida, Fourth District.
    July 23, 1976.
    Rehearing Denied Aug. 27, 1976.

      Richard L. Jorandby, Public Defender, and J. Roy Bean III, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   JOHN GALE, Associate Judge.

Defendant seeks review of his conviction for robbery and possession of a short-bar-relled shotgun and the 20 year imprisonment and consecutive 10 year probation sentence imposed.

Defendant was suspected of having participated in an armed (shotgun) robbery of a grocery store. Pursuant to Officer Kramer’s request, defendant and his stepmother voluntarily went to police headquarters for questioning the day after the robbery. Defendant was eighteen years of age, and Officer Kramer excluded the stepmother from the room in which the defendant was being questioned. Defendant denied participation in the robbery and denied Officer Kramer’s request for permission to search his apartment. Thereupon, defendant was given his Miranda rights, and another request for permission to search the apartment was made. When defendant again refused, Officer Kramer stated that he had probable cause for his arrest, and that he would “go ahead and place him under arrest and proceed the following day to get a search warrant to search his room.” Defendant then said, “Let’s go ahead and go,” whereupon a search of the apartment was made which revealed the presence of a sawed-off shotgun in a suitcase under defendant’s bed. Unbeknownst to defendant, a search warrant had already been applied for and denied for failure to adequately identify the premises to be searched.

Defendant plead nolo contendere to the charges against him reserving for appellate review the propriety of the denial of his motion to suppress.

The main issue thus presented is whether a warrantless search can be justified as lawful upon the basis of consent when that “consent” has been given only after the official conducting the search has asserted that he would get a search warrant the next day anyway.

The exceptions to the requirement of the Fourth and Fourteenth Amendments, that a search be conducted only under the color of a proper warrant issued upon probable cause, have been well established and delineated. The Supreme Court of the United States has held that unless it falls within one of these recognized exceptions, a “search conducted without a warrant issued upon probable cause is ‘per se unreasonable.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). One of the established exceptions is a search which is conducted pursuant to consent. The Supreme Court of Florida has held that where a defendant has been properly advised of his constitutional rights and has consented to the search, the search may not be unreasonable when “. . . considering all of the circumstances.” Grimes v. State, 244 So.2d 130, 133 (Fla.1971). However, the issue which presents itself is whether the consent has been freely and voluntarily given. In this regard it is important to note that the Supreme Court of Florida has recently held, in Bailey v. State, 319 So.2d 22 (Fla.1975), that in order to support a finding of consent, evidence of such consent to search without a warrant must be clear and convincing. In the case sub judice, the state has failed to come forth with such clear and convincing proof.

It has been repeatedly held in Florida that:

“. . . [I]t is encumbent upon the state to establish clearly a waiver of search and seizure rights and: ‘A distinction is recognized . . . between submission to apparent authority of an officer and unqualified consent. Mere acquiescence in a search is not necessarily a waiver of a valid search warrant. Rather, for an occupant to waive his rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search, being cognizant of his rights in the premises . . . Carter v. State, 238 So.2d 681, 683 (Fla.1st DCA 1970), quoting from Talavera v. State, 186 So.2d 811, 814 (Fla.2d DCA 1966).
“[I]f this consent is obtained by the use of force or pressure, or where superior authority had any place in the obtaining of the consent, the consent is no consent at all, and the constitutional guarantees against unreasonable searches and seizures have been violated.” Pekar v. United States, 315 F.2d 319 (5th Cir. 1963).

Such violations are especially prevalent, according to that court, where there is a disparity of position, such as between a government agent and the defendant. James v. State, 223 So.2d 52 (Fla.4th DCA 1969).

Some of the factors which have been used to determine whether a consent to search was voluntary, include: youth of the accused, his lack of education, or his low intelligence. Mack v. State, 298 So.2d 509, 511 (Fla.2d DCA 1974). The question is one of “. . . fact to be determined from totality of all of the circumstances.” Schneckloth, 412 U.S. at 228, 93 S.Ct. 2041. While it has been held in Mack v. State, supra, that advising the subject of a search of his right of refusal is not required, the subject’s knowledge to refuse consent is a factor to be taken into account by the courts. Schneckloth, supra; State v. Othen, 300 So.2d 732 (Fla.2d DCA 1974); Mack v. State, supra.

The present case is factually distinguishable from the Mack case, in that the appellant here has very little education and he was barely eighteen at the time of the search in question. In Mack, the defendant was twenty-four years old and was college educated. Both in terms of maturity and experience it may be said that the present appellant was in a much more impressionable and vulnerable position than the defendant in Mack. It should also be noted that the present appellant was in police headquarters at the time that consent was sought, a potentially coercive situation in itself.

The court in United States v. Boukater, 409 F.2d 537 (5th Cir.1969), in distinguishing certain other decisions, points out that “. . . voluntary consent can rarely, if ever, be inferred where the suspect denies his guilt because a man who denies his guilt would not actually be willing for the police to search for contraband he knows will be discovered.” Boukater, at 539. In accord with this reasoning, it would seem absurd to conclude that the present appellant knowingly, freely and voluntarily consented to the search of his apartment at a time when he was advocating his innocence. The reasonable and logical conclusion would be that appellant told the police to go ahead, after denying his consent twice, as a result of emotional and psychological coercion and duress which was precipitated by the totality of circumstances in this case. The appellant was vulnerable to this type of coercion because of his age and limited education. Further, appellant had been separated from his stepmother during the questioning so as to increase the duress under which he was placed. Clearly, appellant was confronted with a situation in which he believed that the police would gain entrance to his room, despite his protests. Thus, the circumstances indicated to him that he was alone against the forces of the state. Certainly, these circumstances do not evidence an absence of coercion.

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and cases cited on page 1792. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. In the case sub judice, the State has failed to prove conclusively that the warrantless search was validated by a knowing and voluntary consent. Therefore, it was error to deny appellant’s motion to suppress.

Accordingly, the judgment and sentence herein appealed is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

REVERSED AND REMANDED.

MAGER, C. J., and CROSS, J., concur.


text:
    Roger W. LESHER and Joan Woodcock v. GLASS MOTOR COMPANY, INC., et al.
    No. 48712.
    Supreme Court of Mississippi.
    July 27, 1976.
    Strickland & Owen, Gulfport, for appellants.
    Bryant & Stennis, James M. McCarthy, Daniel, Coker, Horton, Bell & Dukes, Pete H. Carrubba, Gulfport, Page, Mannino & Pcresich, Biloxi, for appellees.
    Before INZER, P. J., and SUGG and LEE, JJ.
   Appeal from Circuit Court, Harrison County; J, Ruble Griffin, Judge.

AFFIRMED.


text:
    William Archie FIELDS v. STATE of Mississippi.
    No. 49190.
    Supreme Court of Mississippi.
    July 27, 1976.
    McKoin & Johnson, Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by J. B. Gar-retty, Special Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   Appeal from Circuit Court, Harrison County; Floyd J. Logan, Judge.

AFFIRMED.


text:
    NORTH MISSISSIPPI SAVINGS AND LOAN ASSOCIATION v. FIRST SAVINGS AND LOAN ASSOCIATION OF NEW ALBANY.
    No. 48740.
    Supreme Court of Mississippi.
    July 27, 1976.
    Sullivan, Smith & Hunt, Clarksdale, for appellant.
    Perry, Phillips, Crockett & Morrison, Jackson, Joseph T. Wilkins, III, New Albany, for appellee.
    Before GILLESPIE, C. J., and SUGG and WALKER, JJ.
   Appeal from Chancery Court, Union County; J. D. Doty, Chancellor.

AFFIRMED.


text:
    Robert PEGUES et al. v. Rufus H. COFER et al.
    No. 48742.
    Supreme Court of Mississippi.
    July 27, 1976.
    Basil Richmond, Oxford, for appellants.
    Upshaw, Dale, Dorizas & Calhoun, Jackson, for appellees.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   Appeal from Chancery Court, Lafayette County; William H. Anderson, Chancellor.

AFFIRMED.


text:
    Mack NUNN v. Mrs. Judy MOODY.
    No. 48735.
    Supreme Court of Mississippi.
    July 27, 1976.
    Rehearing Denied Aug. 24, 1976.
    Laurel G. Weir, Philadelphia, for appellant.
    Hathorn & Hathorn, Louisville, for ap-pellee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

AFFIRMED.


text:
    Leo Frank MYERS, Jr. v. Nadine Q. MYERS.
    No. 48749.
    Supreme Court of Mississippi.
    July 27, 1976.
    Rehearing Denied Aug. 24, 1976.
    T. E. Davidson, Jackson, for appellant.
    Barnett, Montgomery, McClintock & Cunningham, Ross Barnett, Jr., Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   Appeal from Chancery Court, Madison County; E. G. Cortright, Chancellor.

AFFIRMED.