author: OTT, Judge.

text:
    John POPOVIC and Martha Popovic, Appellants, v. FLORIDA MECHANICAL CONTRACTORS, INC., a Florida Corporation, Appellee.
    No. 77-425.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.
    John P. Cardillo and William D. Keith of Monaco & Cardillo, Naples, for appellants.
    Charles L. Bigelow, Jr. of Bigelow & Winesett, Fort Myers, for appellee.
   OTT, Judge.

Appellant/landlord sued the appel-lee/tenant for unpaid rentals and taxes pursuant to a written commercial lease of a warehouse. The tenant defended on the grounds that the landlord unreasonably withheld consent for a sublease of the premises. The trial court upheld this affirmative defense of the tenant and ruled that it constituted an absolute defense to the landlord’s action on the lease. We reverse.

The tenant initially was the owner of the premises in question (a large warehouse and yard) and negotiated a sale thereof to the landlord in June 1975 with a 5 year written leaseback arrangement.

The provisions of the lease agreement insofar as pertinent to this decision were as follows:

4. Repairs. Tenant shall take good care of the leased premises and shall, at Tenant’s sole cost and expense, make all repairs in and to the leased premises, interior and exterior, ordinary and extra-ordinary, structural and otherwise . . . and at the end or other expiration of the term, Tenant shall deliver up the leased premises to the Landlord in good order and condition. .
5. Real Estate Taxes, etc. Tenant shall, during the term of this Lease . pay and discharge as soon as the same shall become due and payable all real estate taxes. . [and other charges or impositions not here material.]
6. Net Lease. This is to be a “Net” Lease with the intent hereunder that the Landlord shall not be subjected to any expenses in connection with the use, maintenance or ownership of the premises at any time during the term of this Lease. Landlord shall not be required to provide any services or do any act in connection with the leased premises except as specifically provided herein, and the rent, additional rent, and other charges reserved hereunder shall be paid to Landlord without any claim on the part of Tenant for diminution or abatement, . and the fact that Tenant’s use and occupancy of the leased premises may be disturbed or prevented from any cause whatsoever shall not in any way suspend, abate, or reduce the rental to be paid hereunder except as otherwise specifically provided in this Lease.
8. Alterations. Tenant shall have the right to make changes or alterations to the building on the leased premises, subject to prior written consent of the Landlord, which said consent shall not be unreasonably withheld.
9. Assignment and Subletting. Tenant or its successors shall have the right to assign or sublet the leased premises in whole or in part after having first obtained the prior written consent of the Landlord which consent shall not be unreasonably withheld upon condition, however, that Tenant herein shall continue to remain liable notwithstanding such assignment or sub-lease for the future performance of all the terms, covenants and conditions of this Lease and provided, further, that in the event of an assignment or in the event of a sub-lease of more than 50% of the leased premises, the assignee or sub-lessee in each and every instance shall agree in writing, duly executed and acknowledged in form for recording, to perform all of the terms, covenants and conditions on the Tenant’s part to be performed hereunder and shall assume payment of such portion of the rental and additional rental and other charges hereunder. . . . Such assumption agreement, together with a copy of such assignment or sub-lease shall be delivered to the Landlord within five days after the date of execution thereof. No assignment or sub-lease . shall have any validity except upon compliance with the conditions herein set forth.
13. Default or Desertion by Tenant. If the leased premises, . . . shall become vacant or deserted . or if default be made in the payment of rent or any item of additional rent . . . and said default shall continue for a period of ten days after written notice to Tenant; or if Tenant shall assign this Lease or sublet the premises except as hereinabove provided for . or if default be made in the performance of any of the terms, covenants, and conditions in this Lease contained on the part of Tenant to be kept or performed . . . and if [such] . . . default shall continue for a period of thirty days after written notice and demand Landlord may terminate this Lease . . . but ■ Tenant shall remain liable as herein-above or hereinafter provided . and Tenant shall pay at the same time as the rent becomes payable under the terms hereof, a sum equivalent to the rent and additional rent reserved herein, and Landlord may relet the premises or any part or parts thereof . . . without releasing Tenant from any liability. . The failure ... of Landlord to relet the premises or any part thereof shall not release or affect Tenant’s liability.
18. [After providing for the types and quantities of insurance and the type companies] . . . Tenant shall have the privilege of procuring all of such insurance through its own sources. Tenant shall deliver to Landlord the aforesaid policies of insurance (except that Tenant may deliver certificates evidencing such insurance in the event blanket policies have been issued), with proof of payment of the premiums therefor, at or before the commencement of the terms hereof. .
21. No Waiver. Failure on the part of Landlord or Tenant to complain of any action or non-action on the part of the other shall not be deemed to be a waiver of any of their respective rights hereunder. .
24. Default by Landlord. Anything in this Lease to the contrary notwithstanding, it is specifically agreed that there shall be no enforceable default against Landlord unless notice of such default be given by Tenant to the Landlord in which Tenant shall specify the default or omission complained of, and Landlord shall have thirty days after receipt of such notice in which to remedy such default.
[Emphasis added.]

At the trial an exchange of letters was stipulated into evidence as follows:

(1) A letter dated October 21,1975 in which the landlord notified the tenant that it had “. . . not received a copy of [the insurance policies] or any other proof that same is in existence and I would appreciate your furnishing me with satisfactory evidence that the insurance is in full force and effect. . . . ”

(2) A letter dated November 3, 1975 in which the landlord notified the tenant that it [the tenant] . . does not appear presently to be occupying the leased premises, but that, in fact, the premises appear to have been sublet to another tenant — not only without the prior written consent of [landlord], but also without even the courtesy of a consultation thereon.” [Emphasis in original.]

(3) A letter dated December 2, 1975 in which the tenant replied that “. . .as soon as the sublease has been finalized, we will submit it for acceptance. . . .”

(4) A letter dated December 12, 1975 in which the landlord requested the tenant to advise of its intentions as to the property and the progress, if any, on a potential sublease.

(5) A letter dated January 6, 1976 in which the tenant advised the landlord that due to the severe downturn in its business it had no further need for the warehouse space; that it had a prospective sublessee on the same terms and conditions as the original lease “. . . provided he [sublessee] could obtain consent to divide the warehouse into individual storage units which he could, in turn, sublease. . . . should the space not be needed by him in his business.” In this letter the tenant advised that it understood that the landlord did not “. . . desire to go along with the assignment or subleasing of the premises . unless the monthly rental is increased by $500.00. This would seem . to be an arbitrary position and in violation of the lease.”

(6) A letter dated January 19, 1976 in which the landlord advised the tenant that a sublease to the proposed sublessee on the same terms and conditions as the original lease would be satisfactory but that it “. . . would not be willing to consent to Mr. Ross’ division of the warehouse into individual storage units.” The letter further suggested a sublease of only a portion of the premises if that was all the sublessee required. (This, in effect, denied or corrected any arbitrary demand for rental increase but flatly refused consent to the proposed alterations.)

(7) A letter dated March 9, 1976 in which the ‘landlord requested a response to its letter of January 19, 1976.

(8) A letter dated March 12, 1976 in which the tenant advised the landlord that it considered landlord’s . . arbitrary refusal of a sub-lease or assignment to Tom Ross [as] a breach of the lease. . . .”

(9) A letter dated March 17, 1976 in which the landlord denied any breach of the lease agreement on its part, but on the contrary asserted that the tenant had “. . . failed to make both the February and the March Lease payments and there is, therefore, presently due and owing . . . rental in the sum of $2,450.00. ... in default of paragraph 2 of the Lease agreement (and that) pursuant to paragraph 13 thereof, please accept this letter as written notice of said default.” The letter further advised that landlord had received a second notice of payment due for the 1975 taxes and demanded payment of same by no later than March 31. The letter concluded by advising that if the rental arrearage was not paid within 10 days of the receipt of the letter suit would be instituted for all sums due and owing or that might become due and owing pursuant to the lease agreement.

In addition, the tenant conceded the following facts in its own testimony at trial:

1. That it had vacated the premises and turned possession of the total property over to a proposed sublessee in October 1976 without notifying the landlord or securing his prior written approval and without furnishing a fully executed and recordable sublease proposal. The tenant did claim that it had prepared a sublease and submitted it to the proposed sublessee (Ross) but that Ross failed to execute it.
2. That although it claimed to have procured all of the insurance required by the lease it conceded that it had never furnished the landlord with the policies, certificates, proof of payment of premiums or any other evidence of insurance in full force and effect as demanded by landlord’s letter of October 21, 1975.
3. That it had never paid the 1975 taxes.
4. That at the time it sold the property and leased it back there were roof repairs needed together with repair of resulting interior damage. Neither had been accomplished.

The above uncontradicted facts clearly establish that the tenant not only failed to comply with paragraph 9 of the lease which required the prior written consent (or refusal) of the landlord to a written and fully recordable sublease, but it was also technically in violation of paragraph 4 (repairs), paragraph 5 (taxes), paragraph 13 (vacating the premises and placing another in possession), and paragraph 18 (proof of insurance). This is hardly a position entitling the tenant to the relief requested. Since, however, the parties and the trial court chose to address solely the question of whether the facts established an unreasonable refusal of the landlord to a sublease (more accurately an unreasonable refusal to consent to alterations by the proposed sub-lessee) we turn our attention to a consideration of that issue on its merits.

An examination of the record reveals that the tenant has failed to carry the burden of establishing that the landlord’s withholding of consent to the sublease was unreasonable or arbitrary. Although the tenant contends that the reason the landlord withheld consent was to get more rent, there is meager evidence in this regard. The only evidence even suggestive to this effect is the testimony of Ross (the prospective subtenant) who testified that Popovic (the landlord) stated that if Ross turned the property into a mini-warehouse that the rent would go up. When considered in the light of all the other testimony the most that can be said is that the landlord refused — at least without some adjustment in rent — to consent to any such alteration of the premises by the proposed sublessee. We note in passing that no executed and recordable sublease commitment and assumption was submitted on this or any other basis.

Other aspects of the record strongly indicate that the landlord’s withholding of consent was far from arbitrary if not eminently reasonable.

The tenant subpoenaed Ross to the final hearing. His testimony may be summarized as follows:

1. He had only been in the plumbing supply business approximately 9 or 10 months (since January 1975); that his inventory was at its peak at the time of the sublease negotiations; he was unsure how it would work out; that he had never operated a mini-warehouse; and that he didn’t know what would be involved in and had not made a specific proposal on altering the premises to such an operation.
2. He thought a sublease of the premises would be profitable if he had the conversion option available with no rental increase and, under such conditions, would have been willing to enter into a sublease.
3. That the landlord told him he would not consider the change without a rental increase.

The landlord’s deposition, taken before trial, established that he found Ross in possession when he went to collect the November 1975 rental payment; that while questioning Ross as to his occupancy he learned essentially all of the above and, in addition, that Ross was not doing well in the plumbing business, was also considering going into the furniture business and that he [Ross] could not handle the lease with just his plumbing business; that he [the landlord] had been in the construction business all his life, had worked on and operated warehouses before, was quite familiar with modifying premises to mini-storage units and that it required extensive structural changes to the building, required complete demolition and rebuilding of the interior to restore the building to its original (or any other) purpose.

At trial there was no evidence offered by the tenant to the contrary.

In Whitman v. Pet, Incorporated, 335 So.2d 577 (Fla. 3d DCA 1976) our sister court had occasion to consider whether the landlord had unreasonably withheld consent to an assignment of the lease. The assignment portion of the lease stated as follows;

Tenant shall not have the right to . assign . . . sublease or in any manner dispose of this Lease or any estate or interest therein without the previous written consent of the Landlord, which consent shall not be unreasonably withheld ....

The lease contained an actual proviso requiring any successor to be of substantially the same quality as the tenant. When the tenant attempted to assign to another, the landlord notified the tenant of its termination of the lease. The Third District Court of Appeal found that although the prospective assignee was financially sound, the evidence strongly suggested that the prospective assignee was not of the same quality as the assignors. In doing so it reversed the contrary conclusion of the trial court.

In Johnson v. Jaquith, 189 So.2d 827 (Fla. 4th DCA 1966) the Fourth District Court of Appeal held for the lessor for similar reasons. That court reversed the lower court’s finding that the lessor had unreasonably refused to consent to the assignment of the lease. The lease provided that “ ‘the lease shall be fully assignable provided, however, that the consent of the [lessor] is obtained to such assignment, which consent, however, shall not be unreasonably withheld.’ ” What occurred was that the lessee informed the lessor that it might wish to assign the premises. Then, about three months later, the lessee informed the lessor that the premises had been assigned. Along with this communication was a check from the assignee for the rent. The lessor refused to consent to the assignment on the ground that the premises were a mess, and more importantly, that the lessor was unsure that the assignee would be able to meet the obligations under the lease. The court held that the lessor acted reasonably in stating that it would have accepted the assignment if the assignee could establish its solvency (which it never did). The court noted that the lessee’s offer to guarantee payment of the rental (explicitly required in that case) was insufficient since that agreement was not one for the lessee to remain personally liable for breach of the other lease covenants.

We think it axiomatic that the landlord has the right to expect reasonably prompt and reliable performance of all lease covenants — rental payments being only one— and that this is directly related to the evidence as to the dependability, solvency and stability of the actual occupant. This is particularly true in a total performance lease of the type employed in this instance.

In Whitman, the court described the role of the appellate court in such a case:

Generally, an appellate court will not set aside the findings of fact by the trial court in a non-jury case unless there is no substantial evidence to sustain them, or they are contrary to the manifest weight of the evidence or the legal effect of the evidence, or are induced by an erroneous view of the law. 335 So.2d at 579; See Holland v. Gross, 89 So.2d 255 (Fla.1956); Jaquith, supra.

Both the Whitman and Jaquith cases held that the burden of proof was upon the lessee to prove that the lessor had unreasonably withheld its consent to assignment of the lease.

Generally speaking, courts of other jurisdictions have rejected refusals to consent where arbitrary, unreasonable or unfair on their face. For example, in Chanslor-Western Oil & Development Co. v. Metropolitan Sanitary Dist., 131 Ill.App.2d 527, 266 N.E.2d 405 (1970) the court held that racial grounds for refusal were unreasonable. Cf., Krieger v. Helmsley-Spear, Inc., 62 N.J. 423, 302 A.2d 129 (1973) wherein refusal because the proposed subtenant was then a tenant occupying office space in another building owned by landlord was held unreasonable.

Similarly, refusal of consent based upon a religious or moral objection of the landlord has been viewed as unreasonable or arbitrary. See American Book Co. v. Yeshiva University Development Foundation, Inc., 59 Misc.2d 31, 297 N.Y.S.2d 156 (Sup.Ct. 1969).

Clearly the landlord, in this instance, did not withhold consent on a patently arbitrary ground. In the absence of such there must be competent substantial evidence of circumstances that establish the refusal as unreasonable. See, e. g., Moore v. Bannister, 269 So.2d 291 (La.App.1972) where the lessor had been aware of the sublease for several months prior to raising any objection, knew the sublessee was a “reputable, substantial businessman” who was paying more than double the original rent for the same business use of the premises.

We hold that the uncontroverted essential facts of this case fail to establish either an arbitrary or an unreasonable refusal.

Reversed and remanded for further proceedings consistent with this opinion.

SCHEB, Acting C. J., and DANAHY, J., concur.


source: Caselaw Access Project

author: PER CURIAM. GRIMES, Judge,

license: Public Domain

text:
    CHURCH OF SCIENTOLOGY OF CALIFORNIA, a California Corporation, and Southern Land Development & Leasing Corporation, a Delaware Corporation, Appellants Cross-Appellees, v. Paul M. WADE and Sophie G. Wade, his wife, et al., Appellees Cross-Appellants.
    No. 77-578.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.

      Clyde H. Wilson, Jr. and H. Wayne Floyd of Wilson, Wilson & O’Connell, Sarasota, for appellants/cross-appellees.
    John W. Hamilton of Ware & Hamilton, St. Petersburg, for appellees/cross-appel-lants Paul and Sophie Wade.
   PER CURIAM.

Appellants/cross-appellees/defendants, Church of Scientology of California and Southern Land Development & Leasing Corp., appeal the final judgment entered in favor of appellees/cross-appellants/plain-tiffs, Paul M. and Sophie G. Wade.

Appellees brought suit against appellants for constructive eviction, breach of the implied covenant of quiet enjoyment, and breach of a written lease. There is competent, sufficient evidence to support the conclusion that appellees were constructively evicted in March of 1976, from the leased premises in the old Fort Harrison Hotel in which they operated a gift shop. The issue of damages presents more difficulty.

Appellees pled for damages resulting from lost profits and the lost value of the leasehold. The court expressly found that appellees had failed to establish these damages by the greater weight of the evidence. The court did award relocation costs of $18,400, but the only evidentiary predicate for these damages is found in the following testimony of one of appellees concerning the opening of a new shop at 426 Cleveland Street.

Q What is the general overall picture of the Daisy Shop, 426 Cleveland Street?
A I can give you a figure for the net gross for the entire period of operations through December 1st, December 31st of 1976 from the day of opening which is May something. Is this regarding the investment, that is to say the cost of building the shop, putting in the fixtures and increased inventory.
Q How much was that, sir?
A Net loss, approximately $6,500.
THE COURT: I think the question was, what was the start of the cost, the cost to move to re-equip the new shop— things of that nature?
A I misunderstood the question. Disregarding the fixtures and their value that were removed from the Fort Harrison and ultimately used in the new shop, material and labor totaled approximately $18,400. . . .

The matter was not further pursued even though the $18,400 figure obviously included the costs incident to opening the new gift shop which had a floor space almost ten times as large as the old one.

Aside from the fact that relocation costs were never claimed by appellees and the proof thereof lay solely in the foregoing colloquy, we cannot see how such costs could constitute a proper element of damage in the ease of constructive eviction under a short term lease. Here the lease would have expired of its own accord eleven months later at which time appellees would have been faced with having to pay relocation costs without prospect of reimbursement. In the words of Justice Holmes before he became a member of the United States Supreme Court:

Whether the defendant moved in July or in September, he would have had to pay the cost of moving his machinery; therefore he cannot attribute the payment to the plaintiff’s breach of contract, if there was one, in failing to furnish steam, and thus obliging him to go elsewhere before the end of his tenancy. The instruction that the defendant could not recoup for this item was correct.

Eddy v. Coffin, 149 Mass. 463, 21 N.E. 870 (1889); accord, Besinger v. McLoughlin, 257 Wis. 56, 42 N.W.2d 358 (1950); Knapp v. Guerin, 144 La. 754, 81 So. 302 (1919); Pierce v. Hedden, 105 La. 294, 29 So. 734 (1901). Even if the issue of relocation costs had been tried and the amount of those costs had been established, the most appel-lees would have been entitled to recover was eleven months’ interest on what it would cost to relocate to comparable premises.

Accordingly, the final judgment is reversed and set aside. We have considered the other points raised on appeal and cross-appeal by appellants and appellees and hold they are without merit.

REVERSED.

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

GRIMES, J., concurs in part, dissents in part.

GRIMES, Judge,

concurring in part, dissenting in part.

I concur in the conclusion that appellees were constructively evicted but were not entitled to recover relocation costs. On the other hand, I believe their claim for loss of profits merits further consideration. In support of this claim the appellees testified that they tried to keep the store open under adverse circumstances for about four months and finally closed it in order to avoid further losses. They reopened in a new location two months later but incurred a loss for the period of time in which the lease would have remained in effect. They presented the testimony of a certified public accountant who gave his opinion as to profits they would have earned had they been able to stay in the old location for the balance of the term of the lease. The appellants presented no rebuttal testimony on the subject but did subject the accountant to a thorough cross-examination. Clearly, the court was not bound to accept the figures claimed by the appellees. However, from a study of the testimony as a whole, I am convinced that the appellees suffered at least some loss of profits as a result of their constructive eviction.

Accordingly, I would recognize appellees’ cross-appeal to the extent of remanding the case for further proceedings directed toward a new award of damages at which the court could, in its discretion, consider the prior record and any additional testimony which might be presented.


author: GRIMES, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Richard Michael DAVIS, Appellee.
    No. 77-1075.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   GRIMES, Acting Chief Judge.

By this appeal the state seeks to have this court determine the propriety of a ruling that the alteration of the numbers of a Federal Reserve note and the subsequent attempt to spend the same as a note of a higher denomination does not constitute an offense under Section 831.09, Florida Statutes (1977).

Appellee was charged with uttering a forged bill in violation of Section 831.09. The information alleged that he had altered the numeral 2 on a two dollar bill to read “20” and attempted to use the bill as payment for admission to the Garden Drive-In Theatre in Pinellas County, Florida. At the hearing on appellee’s motion to dismiss, which was stipulated as being filed under Fla.R.Crim.P. 3.190(c)(4), it was explained that a zero had been pasted next to the two on all four corners of both sides of the bill. In support of his motion, appellee’s attorney argued that an altered two dollar bill was not one of the items covered by Section 831.09. The court expressed the view that a two dollar bill was within the purview of the statute but dismissed the charge upon the authority of State v. Peterson, 192 So.2d 293 (Fla. 2d DCA 1966).

In Peterson this court held that the alteration of the numerals but not the written numbers on a bank check did not constitute the uttering of a forged instrument under Section 831.09. Our ruling was premised on the fact that Section 674.19(1), Florida Statutes (1965), relating to negotiable instruments, provided that where there is a discrepancy between the sum payable which is expressed in words and that which is expressed in figures, the sum denoted by the words controls. Thus, it was reasoned that a forgery could not have occurred if the alteration of the figures, but not the words on the check, did not change the obligations or rights of the parties.

Section 674.19(1) was later repealed upon the passage of the Uniform Commercial Code, but the substance of the statute has been retained in Section 673.118(3), Florida Statutes (1977). However, Section 673.103, Florida Statutes (1977), which is part of the same chapter specifies that this chapter does not apply to money. Since the instant case involves money rather than a check, the rationale upon which Peterson was decided does not apply. The question is not whether the Garden Drive-In was obligated to accept the altered bill as a twenty, but whether the appellee, in the words of the statute, uttered or tendered in payment as true an altered bill with intent to defraud. Cf. State v. Charles, 341 So.2d 539 (Fla. 2d DCA 1977). This is a question of fact for the jury to decide.

There remains the question of whether Section 831.09 includes this two dollar bill because the statute does not refer to currency or money. The statutory wording “issued as aforesaid” clearly refers to the language of Section 831.07, Florida Statutes (1977), which reads “a bank bill or promissory note . . . issued by an incorporated banking company established in this state, or within the United States.” These two sections as well as many others in Chapter 831 were originally enacted in 1868 as part of the same legislative act, and the language remains substantially unchanged. It must be remembered that much of the currency then in use consisted of bank notes or bills issued by authorized banks, but that today the bulk of our currency consists of Federal Reserve notes.

The only reported decision we have found which bears on this issue is Commonwealth v. Saville, 353 Mass. 458, 233 N.E.2d 9 (1968). In a comprehensive analysis of a statute much like ours, the Massachusetts Supreme Court held that Federal Reserve notes are “issued by an incorporated banking company.” We reach a similar conclusion and hold that Federal Reserve notes are included within the enumeration of instruments described in Section 831.09.

REVERSED.

SCHEB and DANAHY, JJ., concur.

      . Uttering forged bills. — Whoever utters or passes or tenders in payment as true, any such false, altered, forged or counterfeit note, or any bank bill or promissory note, payable to the bearer thereof or to the order of any person, issued as aforesaid, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud any person, shall be guilty of felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . The court in State v. West, 262 So.2d 457 (Fla. 4th DCA 1972), assumed that a counterfeit ten dollar bill was within the scope of a similarly worded statute, but did not specifically pass on the question.

      . Our interpretation is buttressed by a study of the balance of Chapter 831 in which numerous statutes on forgery and counterfeiting employing similar language are obviously directed toward paper currency. The legislature undoubtedly intended for these laws to cover paper money.


author: PER CURIAM.

text:
    Robert P. AMACHER and Brian Amer, Appellants, v. Marcus KEEL and Elsie Keel, Appellees.
    No. 77-1556.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.
    Malcolm V. McKay of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, Tampa, for appellants.
    Harvey A. Schonbrun, Tampa, for appel-lees.
   PER CURIAM.

Appellants filed a complaint seeking to establish an equitable lien on real property owned by appellees. Following the dismissal of the complaint, the appellants filed an amended complaint. The trial court dismissed the amended complaint and appellants now appeal that order. We believe their arguments have merit and reverse.

In their amended complaint, appellants alleged that appellees were the owners of property which they assigned to appellants, California attorneys, as security for a $24,-000 debt for legal services and for amounts due in connection with truck leasing and operation. They alleged that appellees had failed to pay various debts on demand. Unlike the complaint, the amended complaint did not allege an equitable lien on the land but referred to an equitable lien on the proceeds of any subsequent sale of the land. Nevertheless, the case must have been disposed of below upon the theory of an equitable lien upon the real property because in its order of dismissal the trial court found that appellants were not entitled to an equitable lien, citing Mason v. Antonacci, 342 So.2d 546 (Fla. 3d DCA 1977). Upon examination of Mason, we find language therein which supports the court’s ruling. However, we do not believe that Mason correctly states the law of Florida as our supreme court has expressed it.

In Margarum v. J. S. Christie Orange Co., 37 Fla. 165, 19 So. 637 (1896), a corporation executed a mortgage in favor of the appellant to secure a bond indebtedness the corporation owed to the appellant. The trial court dismissed the appellant’s complaint seeking foreclosure on the ground that the instrument had no subscribing witnesses and was, therefore, not properly executed. In reversing the trial court, the supreme court said,

. [T]here can be no doubt from the instrument itself that the parties designed it as a security for the payment of the bonds; and the court of chancery has often held that an equitable mortgage may be created by an unsuccessful effort to make a valid mortgage deed, or by pledging specific property for the payment of a debt.

37 Fla. at 171, 19 So. at 639. Accord, Holmes v. Dunning, 101 Fla. 55, 133 So. 557 (1931).

We think that here, as in Margarum, the assignment executed by appellees expressed an intent that the property named in the assignment serve as security for a debt. Therefore, even if the assignment was legally insufficient to create a lien or mortgage, it would serve to create an equitable lien.

The court in Mason v. Antonacci, supra, seems to limit the holding of Margarum to cases where the debt is in some way connected with the property subject to the lien. In other words, in the case at bar appellants would not be entitled to an equitable lien because they did not allege that the legal services or the trucking operations added to the value of the real property which was the subject of the assignment. However, we are unable to find any authority which supports the reasoning of Mason where, as here, there is a written agreement, and we decline to follow it.

Accordingly, we reverse the order of the trial court dismissing appellants’ amended complaint and remand the case for further proceedings consistent with this opinion.

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

      . The assignment reads as follows:
      ASSIGNMENT
      * * * * * *
      FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, the undersigned do hereby assign to ROBERT P. AMACHER and BRIAN AMER (doing business as AMACHER & AMER, Attorneys at Law), all of our right, title and interest in and to the real property, or proceeds thereof, located in Hillsborough County, Florida, and described in that certain action known as OTTIS T. BEATTY ET AL. VS. ELSIE VIRGINIA KEEL ET AL., PARTITION — 75-7903.
      This Assignment is given for security purposes, to secure a debt to AMACHER & AMER in the principal sum of $24,000.00, and it is understood and agreed that any cash received over and above said amount is reserved to ELSIE KEEL.
      Dated this 25th day of February, 1976, at Downey, California.
      /s/ Marcus Keel
      MARCUS KEEL
      /s/ Elsie Keel
      ELSIE KEEL


text:
    Leroy M. HALL, Appellant, v. STATE of Florida, Appellee.
    No. 77-1616.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.
    Jack 0. Johnson, Public Defender, Paul C. Helm, Asst. Public Defender, and Carole Ann Grayson, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

On this appeal Leroy Hall seeks credit for the time he spent in the state hospital at Chattahoochee under commitment as a mentally disordered sex offender. We hold he is entitled thereto and remand for correction of his sentence.

Appellant was originally charged with first degree murder. On May 7, 1973, pursuant to a plea bargain, he pled guilty to the lesser-included offense of second degree murder. Under the plea bargain, he was to be committed to the state hospital as a mentally disordered sex offender.

Appellant was committed to the state hospital, but was subsequently returned and brought before the court for sentencing on August 16, 1977. At sentencing the trial court refused to give him credit for the time he spent in the state hospital.

Section 917.218, Florida Statutes (1977) (Chapter 77-312, Section 24, Laws of Florida), which became effective July 1, 1977, provides:

All time spent in the formal custody of the state and in admission procedure by an offender in the mentally disordered sex offender program shall be considered credit for time served for any sentence imposed on the sex offense or attempted sex offense committed prior to the date the offender was convicted.

Because this statute was in effect at the time of appellant’s sentencing, appellant is entitled to the benefit of it. See Hamilton v. State, 306 So.2d 600 (Fla.2d DCA 1975).

We find appellant’s other point to be without merit. Accordingly, the judgment is affirmed, but the cause is remanded with directions to give appellant credit for the time he spent in the mentally disordered sex offender program.

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


text:
    Willard Dana WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 77-1715.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Martha J. Cook, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error; therefore the judgment appealed is affirmed.

The two points raised by appellant are the propriety of the appellant’s sentence to confinement at hard labor and the allegation that appellant was sentenced to the county jail for a term of eighteen months incarceration.

While it appears from the record that appellant was convicted of possession of heroin and properly committed to the custody of the Florida Department of Offender Rehabilitation, the transcript of the sentencing hearing and the judgment and sentence form indicate that a clerical error was made in indicating appellant’s proper place of incarceration.

To be imprisoned “at hard labor” is improper because no existing state statute provides for its imposition as a sentence for any offense. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974).

Remanded for the purpose of striking the language “at hard labor” and for correcting sentence to indicate commitment to the Department of Offender Rehabilitation; otherwise, appellant’s conviction is affirmed.

Appellant need not be present for this purpose.

HOBSON, Acting C. J., and SCHEB and DANAHY, JJ., concur.


text:
    ALPHA ELECTRIC SUPPLY, INC., Appellant, v. F. FEASTER, INC. and United States Fidelity and Guaranty Company, Appellees.
    No. 77-2052.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.

      Robert H. Roth of Roth & Weiss, Orlando, for appellant.
    Robert S. Edwards of Edwards, Sawyer & White, Plant City, for appellees.
   PER CURIAM.

Appellant filed a two-count complaint. It brings this interlocutory appeal from an order dismissing count one with prejudice and dismissing count two with leave to amend. We reverse.

Appellant’s complaint asserted that appellant furnished materials to a subcontractor in connection with the construction of a shopping center. The general contractor furnished a payment bond pursuant to Section 713.23, Florida Statutes (1975), which provides in part as follows:

The payment bond required to exempt an owner under parts I and II of this chapter and chapter 85 shall be furnished by the contractor in at least the amount of the original contract price before commencing the construction of the improvement under such direct contract. Such bond shall be executed as surety by a surety insurer authorized to do business in Florida and shall be conditioned that such contractor shall promptly make payments to all persons supplying him labor, materials and supplies used directly or indirectly by said contractor, subcontractor or subsubcontractor in the prosecution of the work provided in said contract. . . Any lienor shall have direct right of action on such bond against the surety . . . . (emphasis added).

When appellant did not receive payment in full, it filed a claim of lien pursuant to the Mechanics’ Lien Law, Part I of Chapter 713, Florida Statutes (1975). Thereupon, the general contractor filed a transfer bond pursuant to Section 713.24, which provides in part as follows:

(1) Any lien claimed under part I may be transferred, by any person having an interest in the real property upon which the lien is imposed or the contract under which the lien is claimed, from such real property to other security by . . . :
(b) Filing in the clerk’s office a bond executed as surety by a surety insurer licensed to do business in this state . to be in an amount equal to the amount demanded in such claim of lien, plus interest thereon at 6 percent per year for 3 years, plus $100 to apply on any court costs which may be taxed in any proceeding to enforce said lien. . . . Upon . . . filing such bond, the clerk shall make and record a certificate showing the transfer of the lien from the real property to the security . . . . Upon filing the certificate of transfer, the real property shall thereupon be released from the lien claimed, and such lien shall be transferred to said security.

The surety on the payment bond and the surety on the transfer bond are the same. Appellant brought this suit against the general contractor (principal on both bonds) and the surety. Count one of the complaint demanded judgment pursuant to the transfer bond and count two demanded judgment pursuant to the payment bond.

The trial judge dismissed count one on the ground that, a payment bond having been furnished by the general contractor (shown only by the allegations in count two), appellant could have no mechanic’s lien and, therefore, no right of action on the transfer bond. As to count two, the trial judge dismissed that count with leave to amend on the ground that appellant failed to join an indispensable party; i. e., the subcontractor to whom appellant furnished the materials.

In Resnick Developers South, Inc. v. Clerici, Inc., 340 So.2d 1194 (Fla. 4th DCA 1976), both a payment bond and a transfer bond were involved. Suit was brought on the transfer bond and the court there held that the subcontractor was not entitled to recover on that bond because a payment bond had been furnished in proper form and meeting all requirements of the statute. We agree with the decision of our sister court.

Thus, proof of the existence of a payment bond meeting all of the conditions of Section 713.23, Florida Statutes (1975) is a complete defense to a suit on a subsequently filed transfer bond pursuant to Section 713.24. The record does not establish whether the payment bond in the case at bar met all the requirements of the statute. Appellees sought to impose this defense by their motion to dismiss. We believe the defense was prematurely raised and should be asserted affirmatively by allegations showing that the payment bond did, in fact, meet all the conditions of Section 713.23. But see Hunt Truck Sales and Service, Inc. v. Bonanza Construction, Inc., 353 So.2d 612 (Fla. 4th DCA 1977). While appellant cannot recover on both counts, it is entitled to proceed, at this early stage of the litigation, on both counts. A party may state as many separate claims as he has, regardless of consistency. Fla.R.Civ.P. 1.110(g).

We further hold that appellant’s subcontractor is not an indispensable party to a suit on the payment bond, which is the subject of count two. Cf. Bybee v. Stearn, 95 So.2d 529 (Fla.1957) (general contractor is not an indispensable party in suit by subcontractor to foreclose mechanic’s lien against owner). Appellant must, of course, establish its right to recovery, including the fact that appellant furnished materials to the subcontractor pursuant to a contract between appellant and the subcontractor, and that the subcontractor is indebted to appellant for the materials so furnished. No doubt the presentation of such evidence will involve the subcontractor. However, appellant’s right of recovery under Section 713.23 clearly is a direct right against the principal and surety under the payment bond, and joinder of the subcontractor is not required.

Reversed and remanded with instructions to reinstate the complaint and for further proceedings not inconsistent with this opinion.

SCHEB, Acting C. J., and OTT and DAN-AHY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jerry CROOKS, Appellee.
    No. 77-2065.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., _ . i, . j > Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. See State v. Opitz, 357 So.2d 409 (Fla.2d DCA 1978) and Sowell v. State, 342 So.2d 969 (Fla.1977) as to constitutionality of Section 775.087(2), Florida Statutes (Supp.1976).

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


text:
    James Luther TRUMBLE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 78-65.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.
    Jack 0. Johnson, Public Defender, and Susan G. Sexton, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Martha J. Cook, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant entered a plea of nolo conten-dere without reserving the right to appeal. Therefore, we dismiss his appeal. Section 924.06(3), Florida Statutes (1977).

HOBSON, Acting C. J., and SCHEB and DANAHY, JJ., concur.


text:
    Norma Jean GOERLICH, Appellant, v. Richard E. GOERLICH, Jr., Appellee.
    No. 78-317.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.

      William Murrell, Jr. of William Murrell, Jr., Orlando, for appellant.
    John M. Edman of Meros, Coit, Edman & Meros, St. Petersburg, for appellee.
   PER CURIAM.

Appellant/wife Norma Jean Goerlich appeals an interlocutory order dismissing her counterpetition for modification of alimony. We reverse.

The final judgment of dissolution of marriage entered on February 22,1977 provided among other things

that the Petitioner, RICHARD E. GOER-LICH, JR., be and he is hereby directed to pay to the Respondent, NORMA JEAN GOERLICH, as and for alimony, the sum of Five Hundred ($500.00) Dollars per month, for a term of two (2) years, payable on the date of the month of the entry of this Final Judgment. He will thereafter pay the sum of Four Hundred ($400.00) Dollars per month as alimony for a period of three (3) years and thereafter shall pay the sum of Two Hundred ($200.00) Dollars per month as alimony for a term of four (4) years. .

In May 1977 appellee/husband Richard E. Goerlich, Jr. filed a petition for modification of the final judgment seeking custody of the two children born of the marriage. Appellant filed a counterpetition for an increase in alimony payments based on an increased need for medical treatment and care. Pursuant to a motion filed by appel-lee the trial court dismissed the counterpe-tition stating that

the agreement of the parties dictated into the Record of this Court and included in the Final Judgment of Dissolution of Marriage as amended constituted a property settlement agreement under the laws of the State of Florida and as such is not subject to modification by the Wife for alimony.

Appellee contends that the provision requiring “alimony” payments was not an award of alimony in the technical sense but rather was payment of money in settlement of the property rights of appellant. We do not agree with his contention. For an award of money to be considered a property settlement and not alimony it must clearly appear to be so from the final judgment. See Brisco v. Brisco, 355 So.2d 506 (Fla.2d DCA 1978). The fact that an alimony award is made by the trial court in concert with a property settlement cannot be considered as conclusive evidence that the payments are part of the property settlement. In this case the language of the final judgment strongly implies that the agreement stipulated to by the parties referred to only a portion of the disputed property and did not constitute an exhaustive disposition of the properties nor a complete determination of each party’s property rights. We therefore hold that the final judgment included an alimony award which is subject to modification under certain conditions.

Section 61.14, Florida Statutes (1977) authorizes the modification of alimony during the period of time in which the alimony provisions are executory. Lee v. Lee, 309 So.2d 26 (Fla.2d DCA 1975). In the case before us the final judgment provided that alimony payments would be made for ten years. Consequently, the trial court may at any time during that period modify the alimony award.

Accordingly, we reverse the order of dismissal appealed and remand the cause for further proceedings.

REVERSED and REMANDED.

BOARDMAN, C. J., and RYDER and DANAHY, JJ., concur.

      . As indicated above the parties did not execute a written agreement, and the transcript of this hearing is not included in the record on appeal.


text:
    Paul Timothy SUGGS, Appellant, v. STATE of Florida, Appellee.
    No. 78-717.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.
   PER CURIAM.

Paul Timothy Suggs takes this appeal from the denial of his pro se motion denominated “Motion to Vacate, Set Aside, or Correct Sentence; Hearing, Appeal Rule 3.850.” Appellant does not challenge the legality of the judgments or sentences against him. Rather, he seeks a reduction in his ten-year sentences for armed robbery and attempted first degree murder on the basis of certain factors which might be construed as mitigating.

Such relief is properly sought under Fla. R.Crim.P. 3.800, and not under Fla.R. Crim.P. 3.850. No appeal lies from the denial of a motion for reduction of a legal sentence filed pursuant to Fla.R.Crim.P. 3.800. Parker v. State, 214 So.2d 632 (Fla. 2d DCA 1968).

Accordingly, this appeal is dismissed.

HOBSON, A. C. J., and SCHEB and DANAHY, JJ., concur.


author: McCORD, Chief Judge.

text:
    THE FLORIDA BAR, Petitioner, v. Gerald A. LEWIS, as Comptroller of the State of Florida, and the Department of Revenue, Respondents.
    No. GG-160.
    District Court of Appeal of Florida, First District.
    May 18, 1978.

      Carl R. Pennington, Jr. and Everett Anderson of Pennington, Wilkinson & Sauls, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen. and Patricia S. Turner, Asst. Atty. Gen., for respondents.
   McCORD, Chief Judge.

This is a petition of the Florida Bar for review of an order of the Department of Revenue which ruled that petitioner was liable for certain documentary stamp taxes and penalty on a promissory note executed to the Barnett Bank of Tallahassee which was secured by a mortgage executed on the same date as the note. We reverse.

§ 201.08(1), Florida Statutes, imposes a tax upon promissory notes made, executed, delivered, sold, transferred, or assigned in the state. § 201.01, Florida Statutes, provides in pertinent part as follows as to the levy, collection, and payment of such tax:

There shall be levied, collected and paid the taxes specified in this chapter, for and in respect to the several documents . described in the following sections, ... by any person, who makes, signs, executes, issues, sells, removes, consigns, assigns, or ships the same, or for whose benefit or use the same are made, signed, executed, issued, sold, removed, consigned, assigned or shipped in the state, . . . ”

“The bank’s standard form of mortgage which accompanied the note petitioner executed provides that the mortgagor will pay all taxes, stamp tax, or other charges assessed under the mortgage. Upon recording the mortgage and note, documentary stamps were not affixed to either document. Thereafter, the Department of Revenue assessed tax and penalty on the transaction under the statutes referred to above. The bank then required petitioner to pay the assessment and penalty pursuant to the terms of the mortgage and petitioner paid under protest. The question below and the question presented here is whether or not a refund should be granted.

Petitioner contends that as an arm of the judiciary, the Florida Bar is constitutionally immune from direct taxation by the legislature under the separation of powers doctrine and that the legislature may not impose indirectly a tax that would be constitutionally prohibited if imposed directly. Respondent contends (and the hearing examiner and final order adopting same so found) that petitioner could and did contractually bind itself to pay the excise tax which it otherwise would not have been obligated to pay; that the foregoing statute imposes the tax on both parties to the transaction, and petitioner assumed the obligation by its contract.

The Preamble to the Integration Rule of the Florida Bar adopted by the Supreme Court of Florida and as amended to January 1, 1967, provides in pertinent part as follows:

“(a) The Florida Bar, a body created by and existing under the authority of this Court, is charged with the maintenance of the highest standards and obligations of the profession of law, and to that end is vested by this Court, in the exercise of its inherent powers over The Florida Bar as an official arm of this Court with the necessary powers and authority.” (Emphasis supplied.)

See also Dacey v. Florida Bar, Inc., 414 F.2d 195 (5th Cir. 1969). Article II, § 3, of the Florida Constitution provides:

“Branches of Government. The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”

The Florida Bar is an arm and part of the judiciary, one of the three co-equal departments of state government. While the Constitution does not expressly provide that the legislature may not tax the judiciary, the purpose of the framers or adopters of the Constitution may be shown by implication as well as by express provision, and what is implied in a Constitution is as effective as that which is expressed. See State ex rel. Church v. Yeats, 74 Fla. 509, 77 So. 262 (1917); State ex rel. Nuveen v. Greer, 88 Fla. 249, 102 So. 739 (1924); Amos v. Matthews, 99 Fla. 1, 126 So. 308 (1930). Constitutional restraint may be found either in the express language employed or in the purpose clearly, though impliedly, evidenced thereby. Amos v. Matthews, supra. To hold that the legislature has the power to tax the judiciary would make a mockery of the separation of powers provision of the Constitution. The judiciary, and the Florida Bar as part of the judiciary, is immune from taxation.

We must turn now to the proposition of whether or not the particular transaction between the tax immune Florida Bar and the Barnett Bank of Tallahassee is a taxable transaction. It is common knowledge that lenders universally require borrowers to assume the burden of any taxes imposed upon a loan transaction. If a borrower is to obtain a loan, he must agree to pay the taxes on the transaction. This is such common practice that the Court can and we do take judicial notice of it. It is apparent under these circumstances that the legislative act, if applied to a transaction between a lender and a tax immune body, constitutes an indirect tax upon the tax immune body. As stated by the Supreme Court in State ex rel. Powell v. Leon County, 133 Fla. 68, 182 So. 639 (1938),

“It is fundamental and elementary that the legislature may not do that by indirect action which it is prohibited by the Constitution to do by direct action.”

To impose a tax upon a note given by a tax immune arm of goverriment is an unconstitutional application of the foregoing statute.

Reversed.

BOYER and MILLS, JJ., concur.


text:
    Michael W. DOHERTY, Individually and on behalf of David Lee Doherty, a minor and William Joseph Doherty, Appellants, v. Jane JONES, Ray A. Lindsey a/k/a Lindsey Battery Service, and Lindsey Auto Mart, Inc., Appellees.
    No. II-99.
    District Court of Appeal of Florida, First District.
    May 18, 1978.
    Rehearing Denied June 12, 1978.
    Stephen Marc Slepin of Slepin & Schwartz, Tallahassee, for appellants.
    Dominic M. Caparello of Thompson, Wadsworth, Messer, Turner & Rhodes, Tallahassee, and George P. Daniels of Isler, Higby, Brown, Smoak & Watson, Panama City, for appellees.
   PER CURIAM.

AFFIRMED. Palmer v. R. S. Evans, Jacksonville, Inc., 81 So.2d 635 (Fla.1955); Escobar v. Bill Currie Ford, Inc., 247 So.2d 311 (Fla.1971).

SMITH, Acting G. J., and ERVIN and BOOTH, JJ., concur. - .


author: SMITH, Acting Chief Judge.

text:
    Thomas WALKER and Joanne G. Walker, Appellants, v. WOODGATE DEVELOPMENT CORP. et al., Appellees.
    No. HH-354.
    District Court of Appeal of Florida, First District.
    May 19, 1978.
    W. Ralph Durrance, Jr., Tallahassee, for appellants.
    Carl R. Pennington, Jr. and Everett P. Anderson, of Pennington, Wilkinson & Sauls, Tallahassee, for appellees.
   SMITH, Acting Chief Judge.

This appeal presents several complex questions concerning the Securities Act of 1933, 15 U.S.C. § 77e. While the judgment from which the appeal was taken is ostensibly a summary judgment, it is evident that the trial court, presented with motions for summary judgment both by appellants and by appellees, undertook at the instance of the parties to decide all factual issues in the light of the entire record. No claim is made by appellants that issues of fact should not have been resolved by the trial judge when the case was submitted. On less than a full record of the proceedings below, we are invited by appellants to overturn the factual findings made by the trial court. We decline to decide the complex questions presented on such a record. The judgment is

AFFIRMED.

ERVIN and BOOTH, JJ., concur.


author: BOOTH, Judge.

text:
    James CHADWICK and Karen Ann Chadwick, Appellants, v. STATE of Florida, Appellee.
    No. HH-383.
    District Court of Appeal of Florida, First District.
    May 19, 1978.
    Stephen S. Poche, Moore & Anchors, Niceville, for appellants.
    Robert L. Shevin, Atty. Gen., Michael H. Davidson, Asst. Atty. Gen., for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the orders of the Circuit Court, Okaloosa County, withholding adjudication of guilt and placing defendants on probation. Defendants pleaded nolo contendere to possession of more than 5 grams of marijuana, but with express reservation of their right to appeal the denial of their motion to suppress evidence allegedly obtained under an invalid search warrant.

The warrant for the search of the particular premises described issued on the affidavit of the investigator, G. B. Bishop. Bishop affirmed he had reason to believe, and did believe, that narcotics or dangerous drugs were being kept and used on the premises, and:

“That the facts tending to establish the grounds for this application and the probable cause of affiant believing that such facts exist are as follows:
Mr. Perry Thomas, lot 21, 1287 Pine Street, Seminole, FI., who is the owner and landlord of the mobile home described above. Within the last ten days stated to this investigator that on April 16,1977 while performing repairs on the above described mobile home,, (sic) Mr. Thomas observed what he recognized as Marijuana plants growing in several different containers located in the rear of the above described location. Mr. Thomas is retired from the U.S. Air Force with approximately (21) twenty-one years service in the Security Police field. Mr. Thomas stated to this investigator that he had received instruction in Narcotics and in the identification of marijuana and could identify marijuana.”

The contention is that the foregoing affidavit is insufficient because it does not allege, or show facts indicating that the named informant is “reliable.”

We disagree and uphold the search. The affidavit, when read in the “commonsense manner” dictated by the United States Supreme Court in United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), sufficiently indicates (1) the information is reliable, and (2) the affiant has reason to believe in the truthfulness of that information. No more is necessary to satisfy the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and its progeny.

In U. S. v. Burke, 517 F.2d 377 (2nd Cir.1975), the court was faced with a challenge to an affidavit by a named informant. The contention there, as in this case, was that there was an inadequate showing of probable cause because the affidavit contained no recital that the named informant was known to be reliable. The court, after reviewing the Aguilar/Spinelli precedents, made the following analysis (517 F.2d at 380, 381):

“Apart from the question of the precise standing of Spinelli after United States v. Harris, 403 U.S. 573, 581-83, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) . . . there has been a growing recognition that the language in Aguilar and Spinelli was addressed to the particular problem of professional informers and should not be applied in a wooden fashion to cases where the information comes from an alleged victim of or witness to a crime
******
Viewed in the light of these decisions, the affidavit was sufficient; it made evident that Thompson had been in the bedroom of Burke’s apartment and had talked with Burke about the gun, or at least that he had said so. See United States v. Sultan, supra [2 Cir.], 463 F.2d [1066] at 1068. To be sure, it would have been better if the affidavit had recited how Thompson had come to see and hear what he did and still better if there had been an affidavit by Thompson himself, . “a ‘ “substantial basis” for crediting the hearsay.’ United States v. Harris, supra, 403 U.S. at 581, 91 S.Ct. [2075] at 2080 (plurality opinion).” United States v. Sultan, supra, 463 F.2d at 1069. It is true also that Thompson could have been lying to the affiants, that the affiants could have been lying to the judge, or both. But such risks are inherent in any system allowing, as it must, that search warrants may be issued on something less than a full trial of the existence of probable cause.”

The Fifth Circuit, in U. S. v. Darensbourg, 520 F.2d 985 (5th Cir.1975), was also faced with an affidavit which had failed to attest to the reliability of the informant. The court stated:

“It is true that the affidavit did not describe the named informant, a fifteen-year old boy, as previously reliable, or as having given information in the past resulting in successful prosecutions, etc. It did, however, provide the name and address of the juvenile informant and thus lay the spectre of the anonymous troublemaker. (sic) In addition, it gave detailed information about the guns, what robbery they were used in, and where they were located. Such detail may base an inference that the informant gained his information in a reliable way. Spinelli v. United States, 393 U.S. 410, 417, 89 S.Ct. 584, 589, 21 L.Ed.2d 637, 644, .. . (1969), and so satisfy the alternative test under Aguilar’s second prong: . . . ”

This court, in Rowe v. State, 355 So.2d 826 (Fla. 1st DCA 1978) upheld the validity of an affidavit based on information given by a named private citizen informant who stated he had seen a quantity of marijuana packaged in large plastic bags and subdivided into smaller 16 oz. bags at the motel where he worked. The affiant verified that he was familiar with the current practices regarding the storage and transportation of marijuana and the facts related by the informant were consistent with those practices. The court found that the Aguilar/Spinelli standard was ultimately concerned with the probable reliability of an informant’s information rather than that informant’s credibility generally and stated:

“[0]ther recited facts lend reliability to Crawford’s hearsay: he is an identified employee of an Orange Park motel; he personally observed the marijuana; he saw it on the motel premises where, as an employee, he had reason to be observant and to report truthfully what he saw; his description of the marijuana observed was detailed and in that detail was consistent with the officer’s knowledge of the appearance of marijuana and the common forms in which it is packaged. All in all, the hearsay bears hallmarks of reliability.”

Analyzing the probable reliability of the information here, we find that instead of a conclusive statement that the affiant believed the informant was reliable, the affidavit recited facts tending to establish that reliability: (1) the name and address of the informant, (2) an explanation of his connection to the information, (3) the details of his actual observation of the illegal drugs, and (4) information about the informant’s background which justified the affiant’s belief that he could in fact recognize illegal drugs. This is the kind of information useful to the “neutral and detached magistrate” in determining whether the informant’s report provides sufficient probable cause to justify a search.

We find that there was sufficient detail and plausibility in the information here to credit the hearsay. The fact that a named private citizen is previously unknown to the police does not allow the inference that the citizen is therefore unreliable or untruthful — on the contrary. Clearly the public interest is served by private citizens who are willing to identify themselves and to report criminal activity. The fact that the informant is identified by name and address “thus lay[s] the spectre of the anonymous troublemaker,” (Darensbourg, supra at 988) though as noted in Rowe, supra, does not in itself establish credibility. When the information is as precise and credible as that here, we conceive that constitutional guarantees are not offended by allowing a search based on that information.

AFFIRMED.

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


text:
    J. B. MURPHY, Jr., Appellant, v. ESCAMBIA COUNTY, a political subdivision of the State of Florida, and the State of Florida, Appellee.
    No. II-16.
    District Court of Appeal of Florida, First District.
    May 19, 1978.

      Barry W. Beroset, of Murphy & Beroset, Pensacola, for appellant.
    John W. Fleming and Patricia D. Wheeler, Pensacola, for appellee.
   PER CURIAM.

Appellant disputes here the reasonableness of a fee he received for his services as a court-appointed attorney to a criminal defendant charged with first degree murder in Escambia County. Appellant testified that he spent 51V2 hours in the representation of the client; and that his efforts produced a nolle prosequi of the charge against the defendant. Appellant’s experts, after reviewing the file on the case, estimated a reasonable fee to be between $5,000 and $7,000. The court awarded $1,085, apparently in accordance with a recommended schedule sent out by the Escam-bia County Administrative Judge which provided that fees in court-appointed cases were to be computed on the basis of $20 per hour for office and $30 per hour for court time, and that the maximum would be $1,000 “except in unusual circumstances.”

The relevant statute, Section 925.035, Fla. Stat. (1977), now provides:

“If the court appoints an attorney other than the public defender, the attorney shall be allowed reasonable compensation for representing the defendant, as determined by the court.”

Appellant contends that his fee was not reasonable because (1) it did not match his experts’ testimony and (2) because it was set in accordance with a maximum fee schedule adopted arbitrarily by the Escam-bia County circuit judges without authorization from the Legislature. The county responds that the judge did not necessarily set the fee according to the schedule, since it was $85 over the recommended maximum. The county also points out that it was not given the opportunity to cross-examine appellant’s experts, or produce its own, because it was not given notice of the hearing on appellant’s fee and indeed did not come into the matter until appellant served his motion for rehearing on the county after the first hearing had already been held. Appellant served the State Attorney with notice of the original hearing but not the county.

We find merit in both parties’ arguments. The county was clearly denied due process when appellant failed to notify it of the original fee hearing. The State Attorney, with no responsibility for paying the fee, did not appear at the hearing; what resulted then was essentially an ex parte proceeding at which appellant presented the testimony of himself and his own experts.

Appellant was entitled to a “reasonable” fee, not one set in accordance with a judicially-imposed schedule. Inflexible fee schedules are not currently favored in the law. Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975). The Legislature in eliminating the maximum fee of $750 and providing that compensation in such cases be “reasonable ., as determined by the court” intended an individualized analysis of the appropriate fee by the trial judge in each particular case. To allow a schedule to dictate the fee would contravene this intent. Nevertheless, “Attorneys rendering services pursuant to appointment by the court as assistant public defenders . should not expect, nor are they entitled as a matter of right to receive compensation in amounts commensurate with that which would normally be paid for similar services emanating from a voluntary attorney-client relationship.” Gant v. State, 216 So.2d 44 (Fla. 1st DCA 1968). We therefore reverse the judgment and remand the case for a de novo hearing on a “reasonable” fee with proper notice to all interested parties and with proper consideration to all factors bearing on the question of “reasonable” compensation on the facts presented.

REVERSED and REMANDED.

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

      . There was formerly a $750 maximum fee in court-appointed cases. Section 925.035, Fla. Stat. (1975). The change to a “reasonable” fee was made in Ch. 76-287, Laws of Florida, effective October 1, 1976.


author: RYDER, Judge.

text:
    Ruth HARRIS, Appellant, v. Raymond William FILMON, Appellee.
    No. 77-1947.
    District Court of Appeal of Florida, Second District.
    May 19, 1978.
    Charles S. Carrere of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Peters-burg, for appellant.
    No appearance for appellee.
   RYDER, Judge.

This is an appeal from a dismissal of an action for failure to prosecute. Appellant contends the dismissal was improper because she was not afforded prior notice or hearing. We agree and reverse.

On January 10, 1973 appellant and her husband filed a complaint against appellee for damages arising out of an automobile accident. The case eventually went to trial and the jury returned a verdict in favor of appellant on May 3, 1976. The appellant, on May 7,1976, filed a motion for new trial alleging the damages awarded were grossly inadequate. This motion was denied on June 30, 1976. Months later, on November 2, 1977, without prior notice or hearing thereon, the trial court dismissed the case with prejudice.

Fla.R.Civ.P. 1.420(e) requires notice and a hearing before a case can be dismissed for failure to prosecute. Since the trial court afforded appellant neither notice nor hearing, its order dismissing the case was improper and must be reversed. See Franklin Acceptance Corp. v. Superior Electrical Industries, Inc., 167 So.2d 116 (Fla.3d DCA 1964).

REVERSED and REMANDED for further proceedings not inconsistent with this opinion.

BOARDMAN, C. J., and DANAHY, J., concur.


author: PER CURIAM. ERVIN, Judge,

text:
    Richard DESPRES, Appellant, v. Gregory M. PAGEL, Appellee.
    No. HH-161.
    District Court of Appeal of Florida, First District.
    May 22, 1978.

      William G. Babcock and James R. Birk-hold, Gainesville, for appellant.
    Sara B. Anderson, Jacksonville, for appel-lee.
   PER CURIAM.

This appeal from the trial court’s order denying relief under Fla.R.Civ.P. 1.540 fails because, notwithstanding the disturbing implications in the prior record of proceedings before the circuit court, no evidence was submitted at the June 1977 hearing on which we can hold that relief on the ground of excusable neglect was required as a matter of law.

AFFIRMED.

SMITH, Acting C. J., and BOOTH, J., concur.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

Despres appeals the court’s judgment awarding adoption of his natural child to appellee Pagel, the second husband of Despres’ former wife. In January, 1976, Pagel petitioned for adoption of the child, alleging abandonment by Despres who was then in prison at Cross City, Florida. Despres filed a sworn answer denying abandonment, stating that on numerous occasions in 1974 and before, he had attempted to keep a relationship with the child which was frustrated by the mother; that until his incarceration in 1974, he made offers of child support, and that on one occasion, following his imprisonment, he sought permission to visit the child. His answer requested that the adoption petition be set aside, that his answer be considered by the court, that a hearing be held where he could appear and give testimony, and that he be appointed counsel because he was indigent. Notice of trial was sent to Despres in prison on July 12, 1976, setting a trial for September 13, 1976. No ruling was made by the court on Despres’ request for counsel and nothing was done to secure his attendance. In August, Despres filed another pro se answer which was identical to the first. On September 15, 1976, the court held trial on the petition, entered a finding of abandonment by the father, and ordered the adoption, noting that the natural father did not appear in person or through counsel. A copy of the judgment was sent to Despres in prison in Cross City. In April, 1977, a legal aide lawyer moved the court to set aside the final judgment under Fla.R.Civ.P. 1.540(b) alleging that Despres, through excusable neglect, was unable to attend the hearing because he was incarcerated, he had no attorney and was without sufficient knowledge to petition for a writ of habeas ad testificandum or to move the court for an order to compel his transportation. The court ordered a hearing on the motion, and Despres with his lawyer were heard by the court in June, 1977. Following the hearing an order was entered denying the motion for relief, reciting only that the court had heard argument.

Fla.R.Civ.P. 1.540(b) grants a party relief from a judgment on the grounds, inter alia, of mistake, inadvertence, surprise or excusable neglect. In my judgment, Despres’ failure to seek a hearing on his request to present testimony should be considered a mistake. Mistake is defined in Black’s Law Dictionary, 1152 (Rev. 4th ed. 1968) as “some unintentional act, omission or error arising from ignorance, surprise, imposition, or misplaced confidence . . . .” Despres was simply ignorant of the law’s requirement that he must set for hearing, or file a petition for writ of habeas corpus ad testificandum, his request to present evidence at the adoption proceeding.

Many cases have permitted defaults vacated or judgments set aside due to excusable neglect or mistake by counsel. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9 (1942); Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971). In Kalin, following an attorney’s failure, despite notice, to attend pretrial conference, a trial court proceeded ex parte and entered judgment in favor of the plaintiff. The defendant’s counsel sought to set aside the judgment on the ground of mistake, alleging that his secretary had not properly noted the date in his diary book. In reversing the order denying the motion, the Fourth District Court of Appeal noted that the failure of counsel to attend pre-trial conference should not serve as a predicate upon which to punish a litigant and that the rights of parties to the possession of property ought not be summarily determined without a trial on the merits. If Rule 1.540(b) allows relief to a party resulting from his lawyer’s excusable neglect or mistake, it is inconceivable that Despres should be held to a higher standard of care than that of an attorney disciplined in the complexities of the law.

An adoption proceeding which seeks to take a child from the natural father in the absence of his consent is a drastic action, one which should be granted only with caution and only after facts are presented showing clearly and convincingly that the petition has merit. Cf. Durden v. Henry, 343 So.2d 1361 (Fla. 1st DCA 1977). Chapter 63 “contemplates that ... a natural parent should be afforded a full and complete opportunity to object to an adoption in an adversary proceeding in which the rights of the parent should be accorded due recognition.” Wiggins v. Rolls, 100 So.2d 414, 416 (Fla.1958). The majority holds that due to Despres’ failure to request a hearing, he in effect forfeited the right to present evidence showing he had not abandoned his child. I cannot believe Rule 1.540(b) does not encompass the relief later sought by him. I think the court had before it a sufficient record from which ignorance of the law could be inferred, and the denial of the relief requested, in my opinion, was an abuse of discretion. I would reverse the judgment of adoption and remand for a trial on the merits, with directions Despres be afforded the opportunity to appear and give testimony.


text:
    Patricia J. MORELAND, Appellant, v. John W. MORELAND, Jr., Appellee.
    No. HH-488.
    District Court of Appeal of Florida, First District.
    May 24, 1978.

      Joseph Q. Tarbuck, Pensacola, for appellant.
    Louis K. Rosenbloum, of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   PER CURIAM.

Upon considering the briefs, the record, and the oral argument, we find that the trial court did not abuse its discretion in the modification order here appealed. The termination of husband’s permanent alimony obligation to wife is supported by the evidence of wife’s improved financial circumstances since the time of the final divorce decree in 1963, irrespective of any change in husband’s financial abilities since that time.

The trial court did not abuse its discretion in refusing to enforce the child support arrearages by the extraordinary remedy of contempt under the rule of Wilkes v. Revels, 245 So.2d 896 (Fla. 1st DCA 1970), cert. denied, 247 So.2d 437 (Fla. 1971) and Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977). As stated in Wilkes, the wife’s remedy for recovery of the child support arrearages is now limited to a judgment enforceable by ordinary civil proceedings.

The judgment is AFFIRMED.

McCORD, C. J., and SMITH and BOOTH, JJ., concur.


text:
    Donald Melvin LYNN, Appellant, v. Ruth R. LYNN, Appellee.
    No. II-46.
    District Court of Appeal of Florida, First District.
    May 24, 1978.
    Theodore J. Troxel, of Kinsey & Troxel, Pensacola, for appellant.
    Nancy T. Gilliam, Pensacola, for appellee.
   PER CURIAM.

The trial court in a dissolution judgment ordered husband/appellant to pay child support to a child born during the marriage who both parties admitted was not biologically appellant’s child. We reverse. There is no legal duty to provide support for a child who is not a party’s natural or adopted child and for whose care the party has not contracted. Taylor v. Taylor, 279 So.2d 364 (Fla. 4th DCA 1973); Bostwick v. Bostwick, 346 So.2d 150 (Fla. 1st DCA 1977).

REVERSED.

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


author: SCHEB, Judge.

text:
    Robert SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 78-215.
    District Court of Appeal of Florida, Second District.
    May 24, 1978.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

This appeal is from the summary denial of Robert Smith’s motion to vacate and set aside his sentence pursuant to Fla.R.Crim.P. 3.850. Appellant Smith contends that his probation should be reinstated because it was revoked solely on the basis of his robbery conviction, which this court reversed on appeal. Appellant’s allegations, if true, would entitle him to the relief sought, and they are not refuted by the record. We therefore reverse and remand for an evi-dentiary hearing.

On December 2, 1974, appellant was placed on probation for two and a half years for the offense of grand larceny. On June 30, 1975, an affidavit and warrant were filed charging him with violating his probation in that he “was arrested on 20th day of June, 1975 by officers of the Sarasota Sheriff’s Office and charged with Robbery.” He was tried by jury on the robbery charge on September 22-24, 1975, and was convicted as charged. On October 31, 1975, appellant pled “nolo contendere” to the charge of violating his probation; his probation was revoked, and he was sentenced to five years in prison. The robbery conviction was reversed on appeal. Bell v. State, 338 So.2d 1328 (Fla.2d DCA 1976). On August 29, 1977, appellant’s motion for discharge on the robbery charge was granted.

Appellant subsequently filed the instant motion to vacate and set aside his sentence, alleging that the revocation of his probation was predicated solely on his invalid robbery conviction and that his probation should be reinstated. The motion was denied without a hearing.

If, as appellant alleges, his probation was revoked solely on the basis of his invalid robbery conviction, the revocation cannot stand. Jackson v. State, 314 So.2d 175 (Fla.2d DCA 1975). The record before this court does not refute appellant’s allegations. The notes of the probation revocation hearing have not been transcribed and, for reasons unconnected with this case, a certified transcript is probably not obtainable.

Because the available record does not refute appellant’s allegations, we find it necessary to vacate the trial court’s order and remand for an evidentiary hearing. Estevez v. State, 206 So.2d 697 (Fla.2d DCA 1968). The trial court shall determine whether there was sufficient evidence (other than appellant’s robbery conviction) before the court at the original revocation hearing to support a finding that appellant violated his probation. If there was not, appellant’s probation must be reinstated. However, such reinstatement shall be without prejudice to filing a new affidavit and warrant, and conducting a new probation revocation hearing.

Reversed and remanded.

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


text:
    Joseph Booe BATEMAN, Appellant, v. Cleo Christine BATEMAN, Appellee.
    No. II-47.
    District Court of Appeal of Florida, First District.
    May 25, 1978.
    Alan B. Fields, Jr. of Dowda & Fields, Palatka, for appellant.
    James S. Dunning, Jr. of Hedstrom, Dunning & Smith, Palatka, for appellee.
   PER CURIAM.

The trial court determined the money issues in this marriage dissolution proceeding by considering a transcript of the parties’ testimony before a hearing examiner and the parties’ written submissions. That record does not contain substantial competent evidence supporting the judgment that appellee wife is in need of permanent periodic alimony, nor that she needs $75 per week. Without prejudice to further proceedings, that part of the judgment is REVERSED; and it is otherwise AFFIRMED. Appellee’s motion for an allowance of fee money for her attorney’s appellate services is PROVISIONALLY GRANTED. Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

BOYER, Acting C. J., and SMITH and BOOTH, JJ., concur.


author: CALOGERO, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Charone TITUS.
    No. 59052.
    Supreme Court of Louisiana.
    May 16, 1977.
    Dissenting Opinion May 24, 1978.

      Sargent Pitcher, Jr., Pitcher & French, Ltd., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara . Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., John W. Sinquefield, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   CALOGERO, Justice.

Charone Titus was charged by bill of information with distribution of a controlled dangerous substance, to-wit: heroin, in violation of La.R.S. 40:966. After trial by jury, defendant was found guilty as charged and was sentenced to life imprisonment at hard labor under the provisions of the Louisiana Habitual Offender Law, La. R.S. 15:529.1. On appeal, defendant relies on three assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1.

Defendant contends that the trial court erred in admitting into evidence the heroin purchased by an undercover agent from him in that there was a break in the chain of custody. Specifically he argues that, since the envelopes containing the drug were unsealed and several individuals other than those who testified at trial had access to the evidence, an inference is raised that the evidence may have been tampered with prior to trial.

Albert Burns, the undercover narcotics agent who purchased the substance from defendant, testified that the packets were placed in sealed envelopes, which were initialed by him and his partner and delivered to Jimmy Jones, the evidence officer for the narcotics division. Jones testified that upon receipt of the evidence envelopes, they were stored in the division’s evidence locker until they were delivered to the crime laboratory. In addition he identified his signature on the lab analysis form which was turned into the laboratory when the evidence was surrendered, as well as receipts given to him at that time by Paul Cobb, the director of the laboratory. Cobb then testified that the evidence was stored in the evidence locker of the crime laboratory until it was tested by Irving Johnson, Jr. Johnson testified that he obtained the evidence from the locker and returned it there after the testing was complete. The envelopes were slit open by him in order to gain access to the drug for analysis purposes. Subsequently he removed the evidence from the locker and brought it to court where it was delivered to the district attorney who introduced it in evidence at a prior hearing. The testimony of the court reporter and of the secretary of the clerk of court indicated that after the drug was received in evidence it was stored in a locked evidence room from which it was removed on the day of trial.

The law does not require that evidence as to custody eliminate all possibilities that the object has been altered, but rather it suffices if custodial evidence establishes that it is more probable than not that the object is the one connected with the case. State v. Kinchen, 342 So.2d 174 (La.1977); State v. Singleton, 311 So.2d 881 (La.1975); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

A reading of the pertinent portions of the record reveals that the custodial evidence presented by the state adequately established the chain of custody. Defendant’s contention that the chain was broken when the evidence envelopes were unsealed is without merit for it has been held that there is no sacramental requirement that the envelopes be sealed. Rather the lack of seals is merely a factor which bears on the weight of the evidence, a matter properly within the cognizance of the jury. State v. Rittiner, 341 So.2d 307 (La.1976); State v. Martin, 250 La. 705, 198 So.2d 897 (1967). Nor does his contention that access to the evidence by several individuals destroys the chain of custody have merit. This argument was raised and rejected in State v. Kelly, 296 So.2d 819 (La.1974). The chain of custody established possession of the evidence from the date of purchase by the undercover agent through analysis and up to its introduction at trial. Other problems with the evidence are left to the jury for its. consideration.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2.

Defendant argues that the trial court erred in accepting Irving Johnson, Jr., as an expert in the field of chemical analysis of controlled dangerous substances. He contends that Johnson lacked the requisite experience and knowledge which are essential to qualify as an expert in this field and therefore he argues that his objection was improperly overruled. Additionally he submits that it was error to allow an expert to base his opinion on the findings of another expert.

At trial Johnson, a criminologist with the Louisiana State Police Crime Laboratory, testified that he had earned a B. S. degree in chemistry from Louisiana State University and had worked in private industry for nineteen years during which period he held positions with several chemical companies. For the past six years he had been employed at the crime laboratory and had worked primarily in the area of the analysis of controlled dangerous substances. He testified that he had conducted thousands of tests on these substances and had qualified as an expert on numerous occasions.

Louisiana Revised Statutes 15:466 provides:

“The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.”

The competence of a witness to testify as an expert is a question of fact for the trial judge who is given wide discretion in passing on the qualifications of an expert. Such great weight is accorded to his ruling that it will not be disturbed in the absence of a clear showing of an abuse of discretion. State v. Hill, 332 So.2d 475 (La.1976); State v. Gomez, 319 So.2d 424 (La.1975); State v. Traylor, 311 So.2d 847 (La.1975); State v. Thorson, 302 So.2d 578 (La.1974).

The trial court’s ruling that Johnson qualified as an expert in the field of chemical analysis and identification of controlled dangerous substances was justified in light of his experience and training. Further the issue of Johnson’s expertise in this field was examined in State v. Kinchen, 342 So.2d 174 (La.1977), where it was decided that the trial court’s ruling was amply supported by the evidence. There was therefore no abuse of discretion on the part of the trial judge.

Next defendant contends that the witness was improperly permitted to base his opinion on the findings of another expert in that one of the tests upon which his opinion was based involved the use of a reference curve which was drawn by another expert. Johnson testified that, although the reference curve was made in the laboratory, it conformed to other curves published in the literature. Defendant cites State v. Rogers, 324 So.2d 358 (La.1975), in support of his position.

In State v. Rogers, supra, we held that an officer who was not sufficiently knowledgeable in the field of determining the speed of a vehicle by means of skid marks was improperly permitted to qualify as an expert, and that he could not testify on the basis of a template which had been prepared by experts and which was used to compute vehicle speed. We did not dispute, however, that a properly qualified expert witness might well refer to a chart which he understood so as to arrive at his expert opinion. Officer Johnson, therefore, being properly qualified as an expert in the field of chemical analysis and identification of controlled dangerous substances, could properly be allowed to base his expert opinion on the use of a reference curve.

ASSIGNMENT OF ERROR NO. 3.

Defendant contends that the trial court erred in overruling his motion for a mistrial. He argues that a statement made by the district attorney which offered defendant an opportunity to submit to a lie detector test was intentionally uttered to prejudice him and thereby mandated the granting of a mistrial.

The facts which gave rise to the prosecutor’s statement are these. In the presence of the jury, defendant called to the stand his alleged coconspirator, Ronald Williams, who testified that he had been arrested and charged with selling heroin. Defendant then questioned him as to the disposition of the charge, to which Williams replied that he had spent three months in jail and had taken a lie detector test. Immediately the state objected to the testimony as irrelevant. Defendant argued that this line of questioning was the only means by which the jury could be apprised of the fact that no like offer to take a lie detector test had been made to defendant. It was contended that it was unfair to allow a co-conspirator to be freed on the basis of lie detector test results without affording defendant the same opportunity. At this point the state offered to administer a lie detector test to defendant at state expense during a trial recess if he would agree to submit the results to the jury. Asserting that the district attorney’s statement was irreparably prejudicial to him, defendant moved for a mistrial. His motion was denied.

The results of a lie detector test remain inadmissible in Louisiana when offered by either party, either as substantive evidence or as relating to the credibility of a party or a witness. State v. Governor, 331 So.2d 443 (La.1976). Likewise inadmissible is the willingness or unwillingness of a person to submit to such an examination. State v. Refuge, 270 So.2d 842 (La.1972). However, if evidence of a lie detector test is admitted, a reversal will be required only if the defendant has been prejudiced by its introduction in evidence. State v. Refuge, supra.

Defendant’s contention is that the Code of Criminal Procedure requires that a mistrial be ordered in this case because the district attorney’s statement constituted both intentionally prejudicial conduct making it impossible for the defendant to obtain a fair trial (C.Cr.P. art. 775), and direct or indirect reference to the failure of the defendant to testify in his own defense (C.Cr.P. arts. 770, 775).

With respect to the prejudicial conduct argument, we are not prepared to find the district attorney’s admittedly unusual offer was prejudicial to defendant when considered in light of defense counsel’s inappropriate assertions which prompted it. The prosecutor responded and not unreasonably, to a situation which had been intentionally structured by defense counsel. Furthermore, there was no indication that defendant was prejudiced in the eyes of the jury for, while he was belatedly offered the opportunity which his counsel had complained he had been unfairly denied, there was no indication from the colloquy which followed that defendant was required to respond by either accepting or rejecting the state’s offer. Under the circumstances we do not find that defendant was prejudiced or denied a fair trial.

With respect to the argument that the prosecutor referred directly or indirectly to the failure of defendant to testify in his own defense, we find that contention equally non-meritorious. The prosecutor’s statement or “offer” was not a direct or indirect allusion to defendant’s not testifying in his defense. While the comment might broadly be interpreted to highlight defendant’s opportunity to speak up, albeit under lie detector test circumstances, there was no indication that defendant had refused, or was refusing to do so.

Assignment number three lacks merit.

For the foregoing reasons the conviction and sentence of defendant Titus are affirmed.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

This Court continues to hold that polygraph test results are inadmissible in criminal trials, State v. Governor, 331 So.2d 443 (La.1976); State v. Corbin, 285 So.2d 234 (La.1973), and that the willingness or unwillingness of a person to submit to such an examination is likewise inadmissible. State v. Refuge, 270 So.2d 842 (La.1972).

The State’s offer, in the presence of the jury, to allow the defendant to submit to a polygraph examination, with a stipulation that the jury be allowed to learn of the results, was particularly improper in view of the above cited jurisprudence. The State’s belated and highly suspect offer to allow the defendant to submit to a polygraph examination came perilously close to prohibited comment on his failure to take the stand. See, La.C.Cr.P. art. 770. In any event, the State, by its offer, called upon the defendant to respond to its “challenge,” either by submitting or refusing to submit to the examination. The defendant was thus compelled to give testimony against himself, either by taking the polygraph examination, or tacitly by refusing to do so.

That the State’s attorney felt himself outmaneuvered by questionable trial tactics of defense counsel does not justify his resort to highly prejudicial “self help.” Certainly the defendant was entitled to an admonition that the remarks of counsel were improper, and that the disposition of the case of State v. Ronald Williams was irrelevant to the present case. La.C.Cr.P. art. 771. The State was not entitled, in my view, to ignore the proper procedures for remedying any prejudice it might suffer as a result of defense counsel’s questionable conduct by subverting the defendant’s right to a fair trial.

I respectfully dissent.