author: BOYER, Judge. SMITH, Judge,

text:
    SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Petitioner, v. DEPARTMENT OF REVENUE, Respondent.
    No. II—38.
    District Court of Appeal of Florida, First District.
    Sept. 28, 1978.

      Donald W. Wallis and William H. Adams, III, of Mahoney, Hadlow & Adams, Jacksonville, for petitioner.
    Robert L. Shevin, Atty. Gen., Harold Pur-nell, Asst. Atty. Gen., and John D. Moriarty, Tallahassee, for respondent.
   BOYER, Judge.

By this petition, Southern Bell (petitioner here) seeks review of the decision of the Department (respondent here) determining that Southern Bell was subject to sales tax on transactions between it and artists who produced art work used in advertisements appearing in the yellow pages of Southern Bell telephone books and that the exemption contained in F.S. 212.08(7)(e) was inapplicable.

Pursuant to F.S. 212.07(9) the Department assessed a tax, penalty, and interest against Southern Bell based on alleged purchases by Southern Bell of tangible personal property on which no sales tax had been collected by the vendors. The sales tax was assessed on transactions between Southern Bell and artists who produced art work used in advertisements appearing in the yellow pages of Southern Bell telephone books.

The art work which Southern Bell acquired for use in the yellow pages fell into three different categories: (1) stock art, (2) speculative art, and (3) finished art. Southern Bell conceded in the proceedings below that it purchased stock art as tangible personal property and that those purchases were subject to the sales tax. However, Southern Bell contends that its transactions with artists who created speculative art and finished art were personal service transactions which involved sales as inconsequential elements for which no separate charges were made and thus were exempt from sales tax by virtue of F.S. 212.08(7)(e).

Prior to the final hearing, the parties entered into a stipulation of facts which defines the three types of art work. Stock art is previously created art work which is inventoried by dealers who publish cata-logues describing the stock art. When Southern Bell purchases stock art, it acquires possession of papers bearing reproductions of previously prepared drawings, designs, or other representations of objects which are created by the company that sells the stock art, and are reproduced in quantity. Speculative art and finished art are created by artists with whom Southern Bell contracts. Speculative art refers to rough drawings created by artists at the specific request of the yellow pages salesperson. After a salesperson investigates the general nature of a prospective advertiser’s business he gives this information to the artist who by himself or in collaboration with the salesperson creates an artistic design to show how an advertisement for the business might appear in the yellow pages. The design may be accepted or rejected by the prospective advertiser. If it is accepted, Southern Bell gives it back to the same or another artist with the request that finished art be created. Southern Bell becomes obligated to pay the artist who created the speculative art whether or not the design is accepted or rejected. The amount of the fee is measured by the size of the design and is not affected by whether or not the artist’s work is used by Southern Bell. The fee is not broken down into separate amounts for the services performed and the tangible personal property transferred to Southern Bell. Finished art refers to designs which are actually photographed for use in particular yellow pages advertisements. While speculative art is a mock-up of the entire design of the advertisement, including the lettering, finished art consists of only the artistic design or illustration. Finished art is precisely drawn as opposed to being merely sketched as in the case of speculative art. Southern Bell photographs the finished art and it is the photograph — not the finished art itself— which is placed in the yellow pages advertisement. The fee for finished art is either a flat fee or based upon the amount of time spent by the artist and is not affected by the use which Southern Bell makes of finished art. The artists who prepare either speculative art or finished art furnish all the materials used in the creation of the design and the relative value of the materials used ranges from 1% to 6% of the amount paid by Southern Bell to the artist.

It is Southern Bell’s position that theoretically the artists could perform the services for which they are engaged without transferring any property to Southern Bell. In the case of speculative art, the artist could accompany the yellow pages salesperson on a visit to a prospective advertiser or the prospective advertiser could accompany the salesperson to the artist’s studio. In the case of finished art, Southern Bell could photograph the finished art at the studio of the artist. However, Southern Bell contends both of those methods are economically impractical.

It is the Department’s contention that Southern Bell purchased title and exclusive possession to the art work, since that is the only way Southern Bell could obtain the benefit of the product.

The Administrative Hearing Officer found that the transactions involved the furnishing of personal services and that no separate charge was made for the tangible personal property which was transferred. However, the Officer concluded that since it would not be economically feasible for Southern Bell to avail itself of the artist’s services without taking possession of the material on which the services were performed the transfer of tangible personal property was not an inconsequential element of the transaction. Accordingly, the Officer concluded that the personal service exemption did not apply in this case. The Department approved the recommended order. This petition for review ensued.

The Department imposed tax liability on petitioner pursuant to F.S. 212.07(9) which reads in part:

“Any person who has purchased at retail, used, consumed, distributed, or stored tangible personal property, . and cannot prove that the tax levied by this chapter has been paid to his vendor or lessor shall be directly liable to the state for any tax, interest, or penalty due on any such taxable transactions.”

Petitioner seeks an injunction from the tax pursuant to F.S. 212.08(7)(e) on the grounds that the transactions sought to be taxed by the Department are fundamentally contracts for “services”. The foregoing statute provides an exemption for “. . . professional ... or personal service transactions which involve sales as inconsequential elements for which no separate charges are made.”

We agree with petitioner that the exemption set forth in F.S. 212.08(7)(e) applies to the transactions involved. When Southern Bell buys speculative and finished art, it is really purchasing the artist’s idea and the fact that the idea is transmitted on tangible personal property is an inconsequential element of the transaction.

We reach this decision after considering several factors, viz:

(1) Whether or not the property to be transferred as a result of the transaction is already in existence or whether it is produced in the course of the services rendered.

(2) The value of the individual effort involved in the transaction as compared to the value of the property transferred.

(3) Finally, whether or not it is essential to the transaction that the specific tangible personal property be created.

Applying those factors to this case we find that the art work (not stock art) transferred to Southern Bell was created solely in the context of the particular transactions and not prior to them. The value of the services performed for Southern Bell was much greater than the value of the tangible personal property transferred to Southern Bell. Finally, taking possession of the material on which the services were rendered was not essential to Southern Bell’s realization of the value of the artist’s services because the designs created by the artist could be disassociated from the tangible personal property even though it might not have been economically feasible to do so.

Our decision finds support in this court’s decision in Askew v. Bell, 248 So.2d 501 (Fla. 1st DCA 1971). In that case, the court held that a court reporter, who for a fee records a judicial or administrative proceeding, or takes down and transcribes testimony, is engaged in rendering a service and the transcript which he furnishes to the persons who employ him is a mere incident of that service. The Askew court held that such a transaction would be subject to sales tax only when transcripts are sold to third persons who are not parties to the proceeding for which the court reporter was engaged.

Similarly, in Nova Computing Services v. Askew, D.O.A., (the department’s Case No. 76-1475: March 1, 1977), the Department enacted a rule construing computer software (punched cards, paper tape and typed sheets) to be tangible personal property and subject to sales tax. Pursuant to F.S. 120.-56, Nova filed a petition challenging the validity of the rule. The Administrative Hearing Officer in that case found that when computer software is sold it is the computer information which is transferred, and that the magnetic tape or punch cards which contain the information are only the means or method of transmitting it from the originator" to the user. He further found that the tangible property (i. e. punch cards) involved in the process was an inconsequential element for which no separate charges were made; the consequential element being intangible property (computer information) which was not subject to the sales tax on tangible personal property under chapter 212, Florida Statutes. Therefore, he concluded that Nova and other similar corporations were selling services to their customers which were exempt from sales tax pursuant to F.S. 212.08(7)(e).

The hearing officer’s order in the above mentioned proceeding constituted final agency action and was not appealed by the Department. (A copy of that order may be obtained from the Director, Division of Administrative Hearings, Tallahassee, Florida.) Although the order is not binding on this court, we find it to be persuasive to our decision.

We conclude that the personal service exemption does apply in this case. The petition for review is granted. The final order rendered by the Department is vacated and the case is remanded to the Department to enter an order consistent with the views expressed herein.

BLACK, SUSAN H., Associate Judge, concurs.

SMITH, J., dissents.

SMITH, Judge,

dissenting:

The Department’s assessment rests on a hearing officer’s findings that speculative and finished art acquired by Southern Bell, like the stock art which concededly is taxable when sold, are not “inconsequential elements” of the transactions by which artists’ personal services are engaged. Section 212.08(7)(e), Florida Statutes (1977). I believe the hearing officer’s findings are correct as a matter of fact and as a matter of law.

The majority’s view will command respect from philosophers who hold that all things palpable are but shadows of some ideal. In a sense every work of art, indeed every wheel and lever, is a design separable from the tangible property in which it is embodied. But as the question is what Southern Bell has purchased — the image in the artist’s mind or the one he drew with ink on paper — I cannot believe that the thing acquired is “the artist’s idea and the fact that the idea is transmitted on tangible personal property is an inconsequential element of the transaction.” If it were true that “the designs created by the artist could be disassociated from the tangible personal property” in which the designs are manifested, a Caruso record would be sold as wax and a Tolstoy novel as wood pulp, inconsequential elements of the artistry which created them, and hence nontaxable.

The hearing officer found as a fact that the end purpose of Southern Bell’s transactions with artists is the acquisition of drawings, rough or finished, to show to prospective advertisers or to reproduce in the yellow pages. In my view our inquiry ends when we have found substantial competent evidence to support that finding. See Green v. Sgurovsky, 133 So.2d 663 (Fla. 3d DC A 1961); Federated Dep't Stores, Inc. v. Kosydar, 45 Ohio St.2d 1, 340 N.E.2d 840 (1976). I cannot grasp the majority’s distinction between the taxable sale of stock art and the nontaxable sale of speculative or finished art. In either case Southern Bell has characterized the transaction by specifying what is useful to it, and in either case the thing specified is a tangible drawing, valuable in itself, which Southern Bell uses and discards or retains as its own. Thus distinguished are the lawyer’s brief and the physician’s written prescription, which are but the means by which personal services are provided. Thus distinguished are the court reporter’s transcripts and the punch cards and magnetic tapes of a computer service, which have only paper value apart from the information or events they record. See Askew v. Bell, 248 So.2d 501 (Fla. 1st DCA 1971); Commerce Union Bank v. Tidwell, 538 S.W.2d 405 (Tenn.1976); State v. Central Computer Services, Inc., 349 So.2d 1160 (Ala.1977).

A different case might be presented if Southern Bell’s artists licensed the use of their skill for particular purposes on particular occasions, as by drawing in chalk upon an advertiser’s blackboard, then reclaiming their proprietary images by erasure. Compare Washington Times-Herald, Inc. v. District of Columbia, 94 U.S.App.D.C. 154, 213 F.2d 23 (1964), with District of Columbia v. Norwood Studios, Inc., 118 U.S.App.D.C. 358, 336 F.2d 746 (1964). But in my view this case is no different than if Southern Bell had acquired a Rembrandt to hang in its executive office.

I would affirm.


source: Caselaw Access Project

author: ERVIN, Judge.

license: Public Domain

text:
    ST. JOHN’S ASSOCIATES, a partnership, Appellant, v. Robert A. MALLARD, Property Appraiser of Duval County, Florida, et al., Appellee.
    No. HH-235.
    District Court of Appeal of Florida, First District.
    Oct. 3, 1978.

      Gerald W. Weedon and Francis P. Conroy of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., David K. Miller, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

St. John’s appeals a final judgment in a declaratory judgment action holding that the assessment of taxes upon its leasehold interest is valid.

On May 19, 1972, St. John’s, a private partnership for profit, leased 12V2 acres of land on Blount Island in the City of Jacksonville, Florida, from the Jacksonville Port Authority (JPA), a public body. St. John’s expended approximately $180,000 in improving the leasehold property by leveling, draining, paving and erecting facilities upon it. Later, St. John’s subleased the property for a specified periodic rent. The present sub-lessee is R. G. Hobelman and Company, Inc. which uses the property to service and store imported Volks wagon automobiles pending their shipment by the importer for sale to its customers. St. John’s pays JPA a monthly rental of $1,896 for the lease of the property. In turn it receives a monthly rental of $6,136 from Hobelman.

St. John’s contends that its leased property is entitled to tax exempt status because it performs the same function which its lessor is authorized by law to do. The answer to the question whether the exemption applies hinges upon the pertinent taxing statutes and. decisions interpreting those statutes. Section 196.001, Florida Statutes (1971), provides:

Property subject to taxation. — Unless expressly exempted from taxation, the following property shall be subject to taxation in the manner provided by law:
(1) All real and personal property in this state and all personal property belonging to persons residing in this state; and
(2) All leasehold interests in property of the United States, of the state, or any political subdivision, municipality, agency, authority, or other public body corporate of the state.

The specific exemption provided by law which St. John’s relies upon is stated in Section 196.199(2)(a) as follows:

(2) Property owned by the following governmental units, but used by nongovernmental lessees, shall only be exempt from taxation under the following conditions:
(a) Leasehold interests in property of the United States, of the state or any of its several political subdivisions, or of municipalities, agencies, authorities, and other public bodies corporate of the state shall be exempt from ad valorem taxation only when the lessee serves or performs a governmental, municipal, or public purpose or function, as defined in s. 196.-012(5). . . . (emphasis supplied)

A governmental, municipal or public purpose or function is defined in Section 196.-012(5) as follows:

(5) Governmental, municipal, or public purpose or function shall be deemed to be served or performed when the lessee under any leasehold interest created in property of the United States, the state or any of its political subdivisions, or any municipality, agency, authority, or other public body corporate of the state, is demonstrated to perform a function or serve a governmental purpose which could properly be performed or served by an appropriate governmental unit, or which is demonstrated to perform a function or serve a purpose which would otherwise be a valid subject for the allocation of public funds. . . . (emphasis supplied)

St. John’s argues it serves a governmental, municipal, or public purpose by performing a function which could properly be performed pursuant to statute by its lessor, a governmental unit; therefore its leasehold should be exempt from ad valorem taxation. It relies upon Ch. 63-1447, Laws of Florida, a special act creating the Jacksonville Port Authority, as showing a legislative intent that the function performed by St. John’s is for a public purpose. Among other things JPA is empowered by Section 3 of Ch. 63-1447 to make and execute leases for the use and occupation of the property and projects under its control on such terms and conditions as the authority may determine. St. John’s continues that since “project”, as defined by Section 2 of the act, includes shipping facilities of all kinds, warehouses, motor terminals, etc., that St. John’s was delegated by JPA the same statutory authority to lease project facilities which JPA had been conferred. Moreover, St. John’s continues, there is nothing in its lease with JPA inconsistent with the statutory powers granted to JPA since it was restricted by the terms of the lease from using the premises for any purpose other than export-import automobile activities relating to the development of water borne commerce in the port of Jacksonville. Therefore, since a governmental, municipal or public purpose is performed when the lessee carries out a function which could properly be performed by the appropriate governmental unit, Section 196.012(5), its use of the land complies with the statutory definition and its leasehold interest is exempt.

St. John’s relies upon Hillsborough County Aviation v. Walden, 210 So.2d 193 (Fla.1968); Dade County v. Pan American World Airways, Inc., 275 So.2d 505 (Fla.1973); Hertz v. Walden, 299 So.2d 121 (Fla. 2d DCA 1974), affirmed 320 So.2d 385 (Fla.) and Opa-Locka v. Metropolitan Dade County, 247 So.2d 755 (Fla. 3d DCA 1971) for its position that if the use of the premises leased is predominantly public in nature as an indispensable facility supporting the operation of the public facility, the exemption will be allowed even if the use was for private purposes incidental to the predominant public use. Those cases set forth a public purpose test permitting a private party to qualify for an exemption if its use of the property was essential to some public purpose, and if the same functions could be performed by using public funds. For example, in Dade County v. Pan American World Airways,, supra, the Florida Supreme Court held that Pan Am’s overhaul base, reservations and accounting office, flight simulation building at Miami International Airport were tax exempt because the projects were primarily and predominantly for the public benefit, even though there may have been some incidental private purpose. And, once a project meets the test of public purpose, an incidental private purpose loses its identity and is merged within the term public purpose.

It should be noted that the court in Pan American Airways was asked to construe statutes different from those now before us. There the court interpreted the effect of Section 196.25(2)(c), Florida ■ Statutes (1969), which permitted the exemption from taxation of leasehold interests to corporations for profit in property owned by the state or other governmental unit “for a consideration in the performance by the public body of a public function or public purpose authorized by law . . . Section 196.25 was repealed by § 15 to Ch. 71-133, and the legislature, in § 16 to the same act, amended Chapter 192 by enacting § 192.010, later renumbered as Section 196.-001.

We conclude that a more recent line of cases militates against St. John’s argument that an exemption exists. E. g., Straughn v. Camp, 293 So.2d 689 (Fla.1974); Williams v. Jones, 326 So.2d 425 (Fla.1975); Volusia County v. Daytona Beach Racing, etc., 341 So.2d 498 (Fla.1976). Therefore the test formerly applied in those cases relied upon by St. John’s i. e., predominant public use, no longer has continuing efficacy and we must look instead to the use actually made of the property leased to determine its tax exempt status.

Legislative declarations such as those in Ch. 63-1447 do not necessarily make the function a commercial lessee performs governmental. It is rather the actual use made of the leased property which determines whether it is taxable under the constitution. Cf. Straughn v. Camp, supra. Governmental functions or duties relate to the administration of government or some element of sovereignty, Daly v. Stokell, 63 So.2d 644 (Fla.1953), while proprietary functions are those undertaken for public benefit and involve no exercise of sovereignty. City of Miami v. Oates, 152 Fla. 21, 10 So.2d 721 (1942). If the function is in fact proprietary — it matters not what statutory authorization is given the governmental unit — the leased property does not obtain its tax exempt benefit. Williams v. Jones, supra. In Williams v. Jones, supra, commercial and residential lessees of publicly owned property on Santa Rosa Island from the Santa Rosa Island Authority filed suits against the county appraiser, challenging assessment of their leaseholds for ad valorem property tax purposes, contending that their property was exempt from taxation. The governmental unit had been authorized by special act, Section 2, Ch. 24,500, Laws of Florida, Special Acts 1947, to develop Santa Rosa Island. The act permitted the Escambia County Commissioners, either by themselves or by lease with others, to construct and operate golf courses, hotels, restaurants, theaters, tourist camps, etc. The commercial lessees contended, as does the taxpayer here, that the operation of their facilities constituted a governmental, public purpose or function and that the leaseholds were exempt from ad valorem taxation pursuant to Section 196.012(5). The Supreme Court rejected the taxpayers’ arguments, stating:

The operation of the commercial establishments represented by appellants’ cases is purely proprietary and for profit. They are not governmental functions. If such a commercial establishment operated for profit on Panama City Beach, Miami Beach, Daytona Beach, or St. Peters-burg Beach is not exempt from tax, then why should such an establishment operated for profit on Santa Rosa Island Beach be exempt? No rational basis exists for such a distinction. The exemptions contemplated under Sections 196.012(5) and 196.199(2)(a), Florida Statutes, relate to “governmental-governmental” functions as opposed to “Governmental-proprietary” functions. With the exemption being so interpreted all property used by private persons and commercial enterprises is subjected to taxation either directly or indirectly through taxation on the leasehold. Thus all privately used property bears a tax burden in some manner and this is what the Constitution mandates. Id. at 433. (Emphasis in original.)

Here, as in Volusia County v. Daytona Beach, Racing, etc., supra, and Williams v. Jones, supra, the lessee does not serve a governmental purpose. St. John’s derives a net annual income of $51,000 from its lease with Hobelman. The use of the property by Hobelman is to service and store imported Volkswagon automobiles pending the automobiles’ shipment by the importer (Volks-wagon of America) for sale to its customers. St. John’s, a private partnership for profit, and its lessee, Hobelman, a private corporation for profit, compete with other private enterprises in Jacksonville. St. John’s and Hobelman’s operations were no less proprietary and for profit than were those of Day-tona Beach Racing and Recreation Facilities District or the commercial lessees on Santa Rosa Island.

AFFIRMED.

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

      . A fact which the court specifically observed in Volusia County v. Daytona Beach Racing, etc., 341 So.2d 498, 502, n. 5 (Fla.1976): “Section 196.001, Florida Statutes (1975), supersedes the statutory provisions considered in Dade County v. Pan American World Airways, Inc., . . .


author: SCHEB, Acting Chief Judge.

text:
    Alfred Jerome PINDER, Appellant, v. STATE of Florida, Appellee.
    No. 77-1527.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 1978.
    As Modified on Denial of Rehearing Nov. 17, 1978.

      Jack 0. Johnson, Public Defender, and Paul C. Helm, Assistant Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

Defendant Pinder appeals from his judgments and sentences for first-degree murder, sexual battery, and burglary. We affirm his convictions for murder and sexual battery, but reverse his conviction for burglary.

Defendant was charged by indictment with breaking into the apartment of an elderly woman in the early morning hours of July 19, 1976, committing sexual battery upon her, and murdering her. After a lengthy trial the jury found defendant guilty of all three charges. The trial court sentenced him to life imprisonment for first-degree murder, thirty years for sexual battery, and thirty years for burglary. All sentences were to run consecutively.

Defendant contends that his convictions must be reversed because the circumstantial evidence upon which they were based was not legally sufficient. Of course, the test to be applied in judging the sufficiency of circumstantial evidence is “whether that evidence is not only consistent with guilt but also inconsistent with any reasonable hypothesis of innocence.” Chaudoin v. State, 362 So.2d 398 at 399 (Fla.2d DCA 1978). Accord, McArthur v. State, 351 So.2d 972 (Fla.1977); Davis v. State, 90 So.2d 629 (Fla.1956). We have examined the evidence in great detail and we are satisfied that it was sufficient to meet this standard.

Defendant also contends that the double jeopardy clause of the fifth amendment precluded him from being convicted of sexual battery and burglary in addition to first-degree murder. He bases his argument on two recent cases from the United States Supreme Court.

In the first case, Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the defendant was prosecuted for the misdemeanor offense of joyriding. He pled guilty to the charge and received a short jail term. The State of Ohio subsequently convicted him in a second trial of auto theft on the basis of the same criminal episode. The defendant’s claim of double jeopardy was rejected by the Ohio courts, but upheld by the Supreme Court. Justice Powell, speaking for the Court, held that the defendant’s conviction of joyriding barred his subsequent prosecution for auto theft, because “the lesser offense — joyriding—requires no proof beyond that which is required for conviction of the greater — auto theft.” 432 U.S. at 167, 97 S.Ct. at 2226.

In Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), the defendant was convicted of felony-murder on the basis of his participation in a robbery during which the victim was killed. Thereafter he was prosecuted and convicted of robbery on the basis of the same incident. The Court, in a brief per curiam opinion, held that when “conviction for a greater crime, murder, cannot be had without conviction for the lessor crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction for the greater one.” 433 U.S. at 682, 97 S.Ct. at 2912.

Defendant points out that even though the indictment charged him with premeditated murder, there was absolutely no evidence of premeditation introduced at trial. Therefore, he contends, the jury must have found him guilty on the basis of its conclusion that he had killed the victim while perpetrating one of the felonies listed in § 782.04(1), Pla.Stat. (1975). Florida law holds that a conviction of first-degree murder can be sustained by evidence of felony-murder, even though the defendant was charged with premeditated ' murder. Knight v. State, 338 So.2d 201 (Fla.1976); Ables v. State, 338 So.2d 1095 (Fla. 1st DCA 1976). Here there was no evidence of premeditation. Therefore, we must agree with defendant that the jury could have only found him guilty of first-degree murder on the basis of the evidence that he killed the victim during the perpetration of the burglary, or sexual battery.

When a conviction of first-degree murder is based solely on the jury’s finding that an unlawful killing was committed by the defendant while engaged in the perpetration of one of the felonies enumerated in § 782.04(1), as was the case here, proof of the underlying felony is, of course, indispensable to the murder conviction. This being true, we hold that under the rationale of Brown v. Ohio and Harris v. Oklahoma defendant Pinder could not have been convicted of felony-murder and the underlying felony on which that murder conviction was based.

The only significant difference between the instant case and Harris v. Oklahoma is that in Harris the defendant was convicted of felony-murder in one trial and robbery in another, whereas here defendant was convicted of felony-murder and the underlying felonies all in one trial. In our opinion this difference does not distinguish the instant case from Harris.

Over one hundred years ago the Supreme Court announced in Ex Parte Lange, 18 Wall. 163, 173, 21 L.Ed. 872, 878 (1874):

For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? Why is it that, having once been tried and found guilty, he can never be tried again for that offense? Manifestly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value? Is not its intent and its spirit in such a case as much violated as if a new trial had been had and, on a second conviction, a second punishment inflicted?
The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.

This principle has been reaffirmed many times over the years, usually with a. quote from Ex Parte Lange. See, e.g., United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232, 241 (1975); North Carolina v. Pearce, 395 U.S. 711, 717—718, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 665 (1969).

The state argues that Harris v. Oklahoma is inapplicable and contends this case is controlled by two decisions of the Supreme Court of Florida.

First, in Slater v. State, 316 So.2d 539 (Fla.1975) the defendant was prosecuted and convicted in a single trial of both robbery and first-degree murder. On his direct appeal to the supreme court he contended, inter alia, that he could not be sentenced for both robbery and murder. The supreme court rejected this argument, holding that the defendant could be validly convicted and sentenced for both crimes.

In State v. Adams, 335 So.2d 801 (Fla.1976), the defendant was found guilty of robbery and felony-murder. The supreme court held on the authority of Slater that the defendant could be convicted and sentenced for both crimes.

Admittedly these cases are on point. However, they were decided before Brown v. Ohio and Harris v. Oklahoma. We think that these United States Supreme Court decisions require that where (as here) the defendant is convicted of felony-murder, and there is no evidence of premeditation other than the fact that the killing occurred during the perpetration of the underlying felony, he cannot also be convicted and sentenced for the underlying felony. To this extent we feel that Slater and Adams no longer are controlling precedents.

A different panel of this court faced an almost identical question recently. In Ennis v. State, 364 So.2d 497 (Fla.2d DCA 1978), the defendant was charged with felony-murder and robbery, and convicted of both in a single trial. The majority held that under § 775.021(4), Fla.Stat. (1977) the defendant could not have been sentenced for robbery, since that statute prohibits a defendant from being sentenced for a lesser-included offense as well as the greater offense. The majority found that robbery was a category (4) lesser-included offense under Brown v. State, 206 So.2d 377 (Fla.1968), because, as Judge Boardman noted, “its commission was alleged in the charging language of the murder count and was proved at trial.” Ennis v. State, supra, at 500. In the course of his opinion Judge Boardman considered the cases we have discussed, and specifically rejected the argument that Slater and Adams were overruled by Harris v. Oklahoma and Brown v. Ohio. However, in a specially concurring opinion Chief Judge Grimes expressed a belief that Harris v. Oklahoma may have implicitly overruled the Florida Supreme Court cases.

The somewhat unsettled state of the law on the aspect of double jeopardy presented by this case and the decision of this court in Ennis v. State, supra, has persuaded us to certify this question to the Supreme Court of Florida as being one of great public interest.

One further problem needs to be addressed. Both burglary and sexual battery are among the felonies enumerated in § 782.04(1). So, proof of an unlawful killing committed by one engaged in the perpetration of either of these felonies will support a conviction of first-degree murder. This being so, it was not necessary in the instant case for the state to prove both sexual battery and burglary to sustain the felony-murder conviction, but only one of the two. Therefore, we need not vacate defendant’s convictions on both of these charges. We choose to vacate the conviction and sentence for burglary, as it is the less serious of the two.

Finding no merit to the other points raised by defendant, his convictions and sentences for sexual battery and first-degree murder are affirmed; however, his conviction and sentence for burglary are vacated. The following question is certified to the Supreme Court of Florida as being one of great public interest:

CAN A DEFENDANT BE CONVICTED AND PUNISHED FOR BOTH FIRST-DEGREE MURDER AND AN UNDERLYING FELONY ENUMERATED IN § 782.04(1) WHERE:
(A) THE DEFENDANT IS CHARGED WITH PREMEDITATED MURDER AND ONE OR MORE OF THE FELONIES ENUMERATED IN § 782.04(1); and
(B) THE EVIDENCE TO SUSTAIN THE MURDER CONVICTION IS FURNISHED SOLELY BY PROOF THAT THE KILLING OCCURRED AS A RESULT OF COMMISSION OF ONE OF THE SAID FELONIES?

OTT and DANAHY, JJ., concur.

      . Although we are reversing the burglary conviction, we note in passing that the thirty-year sentence imposed on that charge was excessive. The burglary count of the indictment alleged that defendant “did unlawfully enter or remain in a certain dwelling . . . with the intent to commit an offense therein, in violation of Florida Statute 810.02(3).” Since there was no allegation that defendant was armed or committed an assault during the course of the burglary, the crime charged was only a second-degree felony. § 810.02(3), Fla.Stat. (1975). The maximum period of imprisonment for a second-degree felony is fifteen years. § 775.-082(3)(c), Fla.Stat. (1975); see Averheart v. State, 358 So.2d 609 (Fla. 1st DCA 1978).

      . The double jeopardy clause is made applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Florida Constitution also contains a double jeopardy clause in Art. 1, § 9.

      . § 775.021(4) is inapplicable to the instant case because sexual battery and burglary do not fit into any of the categories of lesser-included offenses as defined in Brown v. State. Though at first glance these crimes may appear to be category (4) lesser-included offenses of felony-murder, they cannot be so construed because to be a category (4) there must not only be proof that the lesser offense is included in the greater but also an allegation in the charging document to this effect. Brown v. State, supra, at 383. The indictment in the instant case charged defendant with premeditated murder and did not contain an allegation (as did the Ennis indictment) that the killing had been committed during the perpetration of one of the felonies enumerated in § 782.04(1). Therefore, sexual battery or burglary could not be lesser-included offenses under Brown v. State.


author: BASKIN, NATALIE, Associate Judge.

text:
    Donald B. HUNT, Barbara J. Hunt, his wife, Douglas W. McKenzie and Elaine P. McKenzie, his wife, Appellants, v. Francis V. HILAND and Mary G. Hiland, his wife, Appellees.
    No. 77-43.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    Rehearing Denied Feb. 7, 1979.

      Fredric M. Hitt, Altamonte Springs, for appellants.
    Jed Berman of Felder & Berman, Winter Park, for appellees.
   BASKIN, NATALIE, Associate Judge.

This is an appeal from a Final Judgment in Lessors’ favor. The trial court held Lessees violated their lease by failing to pay rent and denied Lessees’ counter-claim for wrongful eviction damages.

The facts were presented for appeal by stipulated statement. Lessees occupied a home improvement store pursuant to a written lease executed September 28, 1973. The premises were subleased for the month of June, 1974, and payment was received by Lessors for June. No July payment was received by the Lessors although it had been paid by Sublessees to Lessee.

On July 23, 1974, after unsuccessful conferences attempting to renegotiate the lease, Lessors changed the locks on the empty premises thereby excluding Lessees.

Lessees contended the lease was breached by the Lessors’ acts locking them out of the premises prior to the giving of written three-day notice. Written notice was not sent by an attorney for the Lessors until August 18, 1974. The trial court held this notice was sufficient.

Lessors contended the lease required payment on the first of each month without demand and, therefore, a written notice of default was not required as a -condition precedent to enforcement of the lease. In addition, they asserted Lessees had actual notice the rent was overdue from phone calls and conferences with Lessors. Lessors maintained the premises were abandoned, giving them the right to reenter.

We disagree and reverse.

The lease executed by the parties requires the payment of rent in advance without demand on the first day of each month.

In paragraph 19, the lease states:

“The happening of any one or more of the following listed events (hereafter referred to singly as ‘EVENT OF DEFAULT’ and plurally as ‘EVENTS OF DEFAULT’ shall constitute a breach of this lease agreement on the part of LESSEE, namely:
b. The failure of Lessee to pay any rent payable under this lease agreement and the continued failure to pay the same for three (3) days or more after written notice of such failure of payment given to Lessee by Lessor.”

Paragraph 19 also provides for actions which the Lessor may take upon the happening of any event of default at his election, in writing. It states:

“Upon the happening of any event of default, Lessor, if he shall so elect, may (1) terminate the term of this lease agreement, or (2) terminate Lessee’s right to possession and occupancy of the premises without terminating the term of this lease, or (3) pursue any remedies provided by the. laws of the State of Florida for the repossession of the premises and/or the collection of the rent, and in the event Lessor shall exercise such right of election the same shall be effective as of the date of the event of default upon written notice of Lessor’s election given by the latter to Lessee at any time after the date of such event of default.”

Under the clear terms of the lease, the default comes into being only upon the happening of two events: the failure of Lessee to pay any rent payable under the lease agreement and the continued failure tolfe-v the same for three days or more after written notice of such failure of payment given to Lessee by Lessor. We find that those events did not occur in accordance with the lease agreement prior to Lessors changing the locks. Since the event of default had not occurred, Lessors’ election of remedies was premature on July 23rd as well as on August 18th. The parties are bound by the terms of the lease and by Chapter 83, Florida Statutes. Ardell v. Milner, 166 So.2d 714 (Fla. 3rd DCA 1964); Waits v. Orange Creek Turpentine Corporation, 123 Fla. 31, 166 So. 449 (1936). The written notice of default held sufficient by the trial court was sent some three weeks later, on August 18th.

The remaining support for the trial court’s conclusion was its finding that Lessees had abandoned the premises. This finding is unsupported by the testimony. The parties were engaged in discussions concerning the lease precluding an inference that Lessees had intended to abandon the premises.

Reversed and remanded for proceedings consistent with this opinion.

DAUKSCH, J., concurs.

ANSTEAD, J., dissents without opinion.

      . The trial court found, in part:
      1. “The Court finds that the plaintiff attorney’s letter of August 18, 1974 fulfills the written notice requirement of paragraph 19(b) of the Lease Agreement, and that the defendants had been in default under the lease from July 1, 1974.
      2. The Court finds that the terms of the lease set out in paragraphs 19 & 21 were not conditions precedent to the existence or enforcement of the lease, but that the lease may be enforced directly by actual notice being given that a default had occurred and that the plaintiff did proceed according to law. The default is clear, actual notice was given by phone, direct conference and by the letter of August 18, 1974 and the plaintiff did not waive any rights he had under the lease by any of his actions.
      3. The Court finds that the defendants breached and abandoned the lease and the plaintiff was entitled to take the second course of action available to a landlord when a tenant breaches or abandons his lease as set out in Diehl v. Gibbs, 173 So.2d 719 (Fla. 1st DCA 1965); that is, ‘he may retake possession of the premises for the account of the tenant, holding the tenant in general damages for the difference between the rentals stipulated to be paid and what, in good faith, the landlord is able to recover from a reletting.’
      4. There is due and owing the plaintiff $4200 in general damages under the lease.”


author: MINER, Associate Judge.

text:
    Miles J. BIELEK and O. Constance Bielek, his wife, Appellants, v. DRS. BIELEK, BIRELY AND SALERNO, P. A., et al., Appellees.
    No. 76-2283.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1978.
    Rehearing Denied Feb. 1, 1979.

      Carl V. Wisner, Jr., Fort Lauderdale, for appellants.
    Donald B. Medalie, of Medalie & Starr, Fort Lauderdale, for appellees.
   MINER, Associate Judge.

This is an appeal from a final judgment of the Circuit Court of Broward County, Florida.

At all times material hereto the plaintiff-appellee, Drs. Bielek, Birely & Salerno, P.A., was a professional association comprised of Miles J. Bielek, Beverly R. Birely and George R. Salerno. The defendant-appellant, Miles J. Bielek, was the lessor of certain commercial property where the plaintiff conducted its business.

In the spring of 1974, the members of the professional association became embroiled in a dispute. Thereafter, the defendant tried to evict the plaintiff from the demised premises. The plaintiff then brought suit to determine its rights under the lease. In addition, the plaintiff obtained a 90-day injunction against further eviction proceedings.

On July 12,1974, the parties entered into an agreement which guaranteed the plaintiff’s right to remain on the premises until the dispute was settled. If the case was decided in favor of the defendant, the plaintiff agreed to vacate the premises within 60 days after judgment was rendered. Despite the provisions of this agreement, the plaintiff moved to a new business location before the trial.

At trial before the Court, the plaintiff was awarded relocation expenses and damages for the increased cost of the new leasehold. On appeal, the defendant urges that these damages were improperly granted because the plaintiff voluntarily left the demised premises. We agree.

If a tenant is wrongfully evicted, he may bring an action against the landlord for damages. Young v. Cobbs, 83 So.2d 417 (Fla.1955). In the instant case, however, there was no wrongful eviction. The defendant could not and. did not evict the plaintiff because the parties’ written agreement protected the plaintiff’s right to remain on the premises. Although the plaintiff may have feared that the case would be decided adversely to its interests, the decision to move was made solely by the plaintiff.

The plaintiff voluntarily surrendered the leasehold estate and voluntarily incurred the cost of relocation and increased rental payments. Under these facts, there was no basis for awarding damages for wrongful eviction or for any other cause of action upon which the plaintiff may have been relying. Accordingly, the award of damages for rental losses totalling $36,-552.37 and relocation expenses totalling $17,432.78 is hereby stricken.

We find the other issues raised by the appellant to be without merit. We affirm the decision of the Circuit Court as modified herein.

ANSTEAD and LETTS, JJ., concur.


author: DAUKSCH, Judge.

text:
    S. R. DeWITT, Jr. and Rhodell Murray, Appellants, v. Rollin W. ZIMMERMAN, as Sheriff of Brevard County, State of Florida, Appellee.
    No. 77-488.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 1978.
    Rehearing Denied Feb. 7, 1979.
    John M. Starling of Crofton, Holland, Starling, Harris & Severs, P. A., Titusville, for appellants.
    Joseph R. Moss, Cocoa, for appellee.
   DAUKSCH, Judge.

On appeal is an order dismissing a complaint. At the hearing on the motion to dismiss the complaint the judge heard evidence which led him to believe the plaintiff DeWitt was not entitled to relief as a matter of law. Perhaps the trial judge is correct about his legal conclusion but we must reverse because it is improper to consider anything but the complaint itself when deciding a motion to dismiss the complaint for failure to state a cause of action. Reed v. Sampson, 349 So.2d 684 (Fla. 4th DCA 1977). The order dismissing the DeWitt complaint is reversed and the trial court is affirmed as to all other points on appeal.

REVERSED in part, AFFIRMED in part.

BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur.


author: RYDER, Judge.

text:
    Pamela Smith KROENKE, Appellant, v. STATE of Florida, Appellee.
    No. 78-982.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 1978.
    Rehearing Denied Jan. 8, 1979.

      Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty., Gen., Tampa, for appellee.
   RYDER, Judge.

Pamela Smith Kroenke appeals her placement on probation for armed burglary. She raises two points on appeal, one of which has merit and requires that the cause be remanded for further proceedings.

Appellant pled nolo contendere to the charge against her pursuant to a plea bargain that she would be placed on probation for five years with the special condition that she make restitution of the property taken in the instant burglary and two others. The trial court provided in its order that the amount of restitution was to be determined by appellant’s probation officer.

Our supreme court held in Fresneda v. State, 347 So.2d 1021 (Fla.1977), that before restitution is ordered, the defendant must be given notice of the proposed restitution order and an opportunity to be heard as to the amount. Here, appellant obviously had notice, but the required hearing as to amount was not held. Instead the court delegated the authority to determine the amount to appellant’s probation supervisor. This was improper.

Accordingly, the cause is remanded with instructions to hold a hearing as to the amount of restitution as required by Fresneda. Appellant’s other point having, been determined to be without merit, the order placing appellant on probation is in all other respects affirmed.

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


author: SCHEB, Judge.

text:
    Margaret GROSS, Appellant, v. Joseph E. SIMANONOK, Appellee.
    No. 78-1502.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 1978.
    Rehearing Denied Jan. 8, 1979.

      W. Daniel Kearney of Kearney & Mulock, Bradenton, for appellant.
    Joseph E. Simanonok, pro se.
   SCHEB, Judge.

Appellant/defendant Margaret Gross challenges the trial court’s order vacating a final summary judgment entered in her favor. We hold that the trial court was without authority to vacate the judgment, and therefore we reverse.

On July 10,1978, appellee/plaintiff Sima-nonok filed a motion to vacate the final summary judgment entered in this case on December 8, 1975. In the 1975 judgment the court had refused to enforce a contract for sale of Gross’ homestead to Simanonok because the contract had not been witnessed by two persons. No appeal was taken from the judgment. In his 1978 motion to vacate Simanonok sought to have the judgment vacated on two grounds. First, he contended that since this court held in Carroll v. Dougherty, 355 So.2d 843 (Fla. 2d DCA 1978) that it is not necessary to have witnesses to contracts to convey homestead property, the order granting summary judgment was erroneous. Second, he alleged that Gross had misrepresented to the trial court before the summary judgment was entered that she intended to retain her homestead, when, in fact, she sought to avoid the contract with Simano-nok in order to sell her property to a third party.

Gross moved to strike the motion to vacate, arguing that this court’s holding in Carroll, rendered subsequent to the summary judgment, afforded no grounds to vacate that judgment. On July 27, 1978, the trial judge granted Simanonok’s motion to vacate. This timely interlocutory appeal by Gross ensued with a cross-appeal by Sima-nonok.

Although Carroll v. Dougherty, supra, is now the law in Florida, the 1975 judgment, not having been timely appealed, became res judicata. A mistaken view of the law is a judicial error as distinguished from “mistake, inadvertence, surprise, or excusable neglect” and is therefore not one of the circumstances contemplated in Fla.R. Civ.P. 1.540 under which final judgments may be set aside. Fiber Crete Homes, Inc. v. Division of Administration, Department of Transportation, 315 So.2d 492 (Fla. 4th DCA 1975). Moreover, Simanonok’s allegation of misrepresentation is refuted by the record which was before the trial court on entry of final summary judgment. Therefore, Simanonok was not entitled to relief on either ground and the court erred in vacating the judgment.

We note that on August 24, 1978, three days after this appeal was filed, the trial court vacated the July 27, 1978 order and entered an amended order denying Si-manonok relief. By cross-appeal Simano-nok attacks the validity of this amended order. We agree that the amended order (while correct in substance) was of no effect and must be vacated since the trial court was without jurisdiction to alter the July 27, 1978 order once this appeal was filed. Burke v. Burke, 336 So.2d 1237 (Fla. 4th DCA 1976).

Accordingly, the August 24, 1978 amended order is vacated; the July 27,1978 order is reversed; and the cause is remanded to the trial court for entry of an order denying Simanonok’s request for relief.

HOBSON, Acting C. J.(jand DANAHY, J., concur.


author:
BOOTH, Judge.
      SMITH, Acting Chief Judge,

text:
    Patsy Ruth EDDY, Appellant, v. Jack Harry EDDY, Appellee.
    No. JJ-192.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1978.
    Rehearing Denied Feb. 7, 1979.

      Allison E. Folds of Fagan, Crouch, Anderson, & Folds, Gainesville, for appellant.
    David Lacroix, and Peter K. Sieg of Brill & Sieg, Gainesville, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the judgment of the Circuit Court, Alachua County, dissolving the marriage of the parties. The sole issue presented is the adequacy of the award of alimony to the wife.

The lump sum award of alimony in this case to a wife of 29 years and mother of three children, is a $75,000.00 interest in a $314,400.00 note and mortgage partially owned by the husband. However, this award, payable for the next 17 years with a semi-annual payment of $2,250.00, is out of harmony with the efficacy of the cause.

The husband has assets of $219,000.00 to $325,000.00 and lists himself as self-employed in the cattle-raising business with no income other than the more than $14,000.00 per year he receives from leases and mortgages on properties he owns.

The husband’s affidavit lists $41,898.90 in liabilities, with $25,265.00 owed to lending institutions and $15,433.90 owed to his Daddy. The balance of liabilities is $1,200.00 in assorted bills. The husband’s testimony at trial, however, was that the amount owed on obligations other than those to his own family had been reduced by approximately $15,000.00 below the amount shown on the financial affidavit. Other obligations of appellee to his family were conveniently satisfied by a transfer of the marital domicile and other properties totaling more than 100 acres to his Daddy less than three weeks prior to the final hearing on dissolution. The trial court awarded the wife no interest in these transferred properties.

The wife has $5,250.00 financial worth and has taken a job earning take-home pay of $86.44 per week as a waitress. She was married at age 16, has no high school diploma and limited work experience outside the home. The wife received no interest in the family residence and was only awarded lump sum alimony payable as indicated above. If she survives to age 62, she will receive the principal interest in the note and mortgage awarded. However, in the 17-year interim, the amount paid to her, approximately $385.00 per month, is insufficient in view of the past and present circumstances of the parties and of the needs of the wife.

In Douglas v. Douglas, 361 So.2d 212, 214 (Fla. 2nd DCA 1978), the court held:

We recognized that marital partners are to be treated on an equal basis; however, we noted that in a long-term marriage the trial court should consider the extent to which the wife has sacrificed her opportunity to pursue a career in order to care for the home and family, thereby aiding the husband in advancement of his career. We further recognized that the career opportunities for a woman in her forties who has been a homemaker all her married life are not nearly as promising as those of a man of comparable age who has been involved in a business career. Under similar factual situations other district courts of appeal have utilized similar reasoning. [Cases cited].

Accordingly, the award of alimony is REVERSED and the cause REMANDED for entry of a judgment which makes more realistic provisions for the needs of the wife. The appellant’s motion for appellate attorney fees is provisionally granted. Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

MELVIN, J., concurs.

SMITH, Acting C. J., dissents.

SMITH, Acting Chief Judge,

dissenting:

I am unable to join in the court’s retrial of this case on appeal. What is clear from this record is that the husband has a $160,-256 interest in two mortgage notes payable seventeen years after they were given, and that the chancellor has awarded the wife $75,000 of that interest, including a proportionate share of the annual income. According to the view of the evidence which I consider must be taken on appeal, the husband’s other assets have been depleted by an unprofitable cow operation and by paying debts to his father, living expenses, temporary alimony, child support, and the wife’s attorney’s fees. Only by treating the husband’s recent conveyance of land to his father as fraudulent, rather than as satisfaction of debts attested by both of them, can the husband’s ability to pay be appreciably increased. The chancellor did not regard the conveyance as fraudulent, and in my opinion we have no authority to do so. I would affirm.


text:
    STATE of Florida, Appellant, v. James Joseph ERP and Joseph J. Murphy, Appellee.
    No. 77-1837.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 1978.
    Rehearing Denied Jan. 31, 1979.
    Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellant.
    Raymond E. Ford, Fort Pierce, for appel-lee-James Erp.
    Joseph T. Garlovsky, Daytona Beach, for appellee-Joseph J. Murphy.
   DAUKSCH, Judge.

.On appeal is an order granting a new trial. While we agree the trial court was correct in granting the new trial and perhaps the question of the arrest, search and seizure should be reconsidered we cannot now hold U. S. v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) is determinative in this matter. For that reason we affirm the order granting the new trial but do not rule Chadwick to be law of the case.

AFFIRMED and REMANDED.

LEFFLER, KENNETH M.,' Associate Judge, concurs.

CROSS, J., concurs only in conclusion.


author: GRIMES, Chief Judge.

text:
    Beverly A. WEBBER and Edwin Webber, her husband, Appellants, v. Steven C. JORDAN and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 78-201.
    District Court of Appeal of Florida, Second District.
    Dec. 6, 1978.
    As Modified on Denial of Rehearing Jan. 9, 1979 and Jan. 10, 1979.

      Steven C. Ruth, of Piper, Esteva, Pennell, Karvonen & Lewis, St. Petersburg, for appellants.
    William C. Kaleel, Jr. of Kaleel & Kaleel, St. Petersburg, for appellees.
   GRIMES, Chief Judge.

This is an appeal from a final judgment in a negligence action.

The plaintiffs below were husband and wife. The wife was injured in an accident as she rode in an automobile driven by her husband. She brought suit for her injuries against the drivers of the two other automobiles involved and their insurance carriers. The husband was not hurt, but he joined in the suit to claim medical and other expenses related to his wife’s injuries and the loss of her services, comfort, society and attention, commonly known as consortium. One of the drivers obtained a directed verdict which is not in dispute on this appeal. The plaintiffs’ claims against Jordan, the remaining driver, were submitted to the jury on special verdicts.

Though concluding that the wife had not sustained a permanent injury, the jury found that she had incurred more than $1,000 of medical expenses as a result of the accident, thereby meeting the threshold requirements of Section 627.738(2), Florida Statutes (1975). The jury then found Jordan negligent and further found that his negligence was the legal cause of injuries to the wife. They awarded her damages of $6,500. The jury, however, found Jordan not guilty “of negligence which was a legal cause of loss, injury or damage” to the husband. Realizing the inconsistency in the verdicts against the husband and for the wife, the court submitted three written interrogatories to the jury. These questions and the jurors’ answers were as follows:

1. Do you find that [defendant] was not guilty of any negligence? Yes or no.
2. Or did you find that [defendant] was guilty of negligence, but that [plaintiff husband] suffered no damages? Yes or no.
3. Did you include the medical expenses in the award to [plaintiff wife]? Yes or no.

Thereupon, the court entered a final judgment for the wife in the amount of $6,500 but against the husband on his derivative claim.

The plaintiffs/appellants argue that if Jordan was liable to the wife, then he must be liable , to the husband to some extent. Consequently, the plaintiffs suggest that the judgment with respect to both of them be set aside and that a new trial be granted on all claims. The defendants/appellees argue that since the medical expenses were included in the wife’s claim, the jury could have properly concluded that the husband simply suffered no other damages as a result of the accident;

We might agree with the defendants were it not for the substantial, undisputed evidence presented in support of the husband’s claim for loss of consortium. The record reflects that the wife suffered a severe whiplash injury of the cervical and dorsal spine, a possible injury to a lumbar disc, and a chip fracture of the callus of the bone in the right foot. She remained in a wheelchair for over two months after the accident, and the husband incurred $655 in maid service while the wife was disabled. Several doctors treated the wife, and she incurred medical expenses of $3,195.23. Admittedly the wife had suffered from back trouble before the accident, and, obviously the jury must have discounted some of the wife’s complaints. Nevertheless, it cannot be said that the husband suffered no damages other than medical expenses as a result of the accident. Consequently, the husband is entitled to a new trial with respect to his other damages. Loftin v. Anderson, 66 So.2d 470 (Fla.1953); Kinne v. Burgin, 311 So.2d 695 (Fla.3d DCA 1975); Fejer v. Whitehall Laboratories, Inc., 182 So.2d 438 (Fla.3d DCA 1966); Thieneman v. Cameron, 126 So.2d 170 (Fla.3d DCA 1961). See Griffis v. Hill, 230 So.2d 143 (Fla.1970), which reaffirms the principle that an appellate court may set aside a verdict which as an end result is so grossly inadequate that it shocks the conscience of the court.

The plaintiffs rely upon Noll v. Byorick, 108 So.2d 67 (Fla.3d DCA 1959), for the proposition that the wife’s judgment should also be set aside and the case retried in its entirety. In Noll an injured wife obtained a $15,000 verdict, but the jury did not award any damages to her husband on his derivative claim. The court pointed out that in light of uncontroverted evidence of substantial medical expenses and loss of consortium, the husband was entitled to a new trial on damages. The court went on to hold that because the amount of damages which could be awarded to the husband and wife were so closely aligned, an injustice would result if the husband were to present his claim alone to a subsequent jury. In Thieneman v. Cameron, supra, however, the same court explained that it had only been necessary in the Noll case to retry the entire issue of damages because it was impossible to determine whether certain expenses recoverable by the husband had been included in the wife’s award. Hence, a retrial of the wife’s claim for damages was required in order to prevent a possible double recovery of certain elements of damage. These facts are not present in the instant case because of the jury’s response that medical expenses were specifically included within the wife’s award. Moreover, unlike Noll, the defendants here do not seek a retrial of the wife’s claims. Essentially the same reasoning leads us to conclude that Coppola v. Ballard, 314 So.2d 6 (Fla.4th DCA 1975), and McNash v. Oxenhandler, 288 So.2d 304 (Fla.4th DCA 1974), are not on point.

We find the plaintiffs’ technical argument that the medical expenses should have been included in the husband’s verdict rather than in the wife’s verdict unconvincing. Even though the jury was instructed that the medical expenses were part of the husband’s claim, a composite exhibit of medical bills introduced into evidence was entitled “Medical Expenses of Beverly Web-ber” and the separate bills had her name on them. Furthermore, the plaintiffs have not suggested any prejudice resulting from the fact that the medical expenses were included in the wife’s judgment rather than in the husband’s judgment. In spite of technical imperfections, if a jury’s intent can be divined from the face of the verdict, then we believe the verdict should be upheld.

Correll v. Elkins, 195 So.2d 27 (Fla.1st DCA 1967), is distinguishable because in that case there was no way to know whether the wife’s medical expenses had been included as part of the wife’s verdict. Hatchell v. Hayes, 157 So.2d 855 (Fla.1st DCA 1963), would be more nearly on point for the plaintiffs except for the fact that this decision was quashed on other grounds by the supreme court in Hayes v. Hatchell, 166 So.2d 146 (Fla.1964). While it never became necessary for the supreme court to pass on the point for which Hatchell is cited here, whatever remains of the district court’s opinion can hardly be viewed as compelling precedent.

Accordingly, the judgment against the husband is reversed and the case remanded for a new trial on all damages claimed by him as a result of the accident, excepting the medical expenses of $3,195.23. Because the jury never reached the question of whether the husband was guilty of any negligence which was a legal cause of the accident, the case will have to be retried on this issue. The new jury should be instructed that Jordan was guilty of negligence which was a legal cause of damages of the husband. If the jury concludes that the husband was also negligent, then they must determine the applicable percentages of negligence to be applied against the total amount of the damages. The judgment for the wife is affirmed.

BOARDMAN and SCHEB, JJ., concur.


author: PER CURIAM.

text:
    KINETICS CORPORATION, a Florida Corporation, and Wallace L. Minto, Petitioners, v. William Randolph KLEIN, Respondent.
    No. 78-1641.
    District Court of Appeal of Florida, Second District.
    Dec. 6, 1978.
    Rehearing Denied Jan. 10, 1979.
    Robert P. Rosin of Rosin, Abel, Band, Rosin & Brown, Sarasota, for petitioners.
   PER CURIAM.

Certiorari denied without prejudice to argue the issue presented herein on appeal, if any, from final judgment.

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


author: BOARDMAN, Judge.

text:
    Calvin CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 77-1052.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 1978.

      Lester W. Jennings, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   ON PETITION FOR REHEARING

BOARDMAN, Judge.

The state has filed a petition for rehearing asserting that our opinion was in error as to certain facts upon which that opinion was based and that we misapplied the relevant law. We disagree and, therefore, the petition for rehearing is denied. However, in an abundance of caution and to avoid misinterpretation and misunderstanding, we withdraw our original opinion and substitute the following as the opinion of the court which merely amplifies our initial position.

This is an appeal from the judgment and sentence entered in the second trial of appellant/defendant Calvin Carter for rape in violation of 794.01, Florida Statutes (1973). We reversed the judgment and sentence entered in the first trial and remanded for a new trial. See Carter v. State, 332 So.2d 120 (Fla. 2d DCA 1976). In this appeal appellant raises six points. Only that point directed to the admissibility of the identifications of appellant by three witnesses merits discussion. This issue was not raised in the first appeal.

Appellant contends that the trial court erred in allowing testimony from the prose-cutrix, her husband, and her father-in-law as to identification of Carter over timely objection alleging that the out-of-court processes used to identify appellant were impermissibly suggestive and affected the reliability of their in-court testimony.

After carefully reading the entire record, we affirm the trial court’s finding of admissibility as to the identification made during trial by the husband. We reverse the trial court’s ruling denying the motion to suppress testimony concerning the pretrial identification process by all three witnesses and the finding of admissibility as to the identifications made during trial by the prosecutrix and the father-in-law;

Testimony introduced at the hearing on the motion to suppress and at trial revealed the following facts.

The prosecutrix was acquainted with appellant prior to the rape. She worked in an auto parts store in the same city where appellant worked as a mechanic at a garage. The prosecutrix stated that she had heard appellant’s voice at least once (R.692) before the rape, and appellant said she would have heard him talk at least fifty times because he had to go to the auto parts store several times a week and would usually ask the girls working there if they wanted a Coke (R.290, 953-55). Furthermore, both appellant and the prosecutrix said they had had a conversation prior to the rape about some property the prosecutrix and her husband had for sale (R.707,1095). The rapist talked to the prosecutrix during the rape, but spoke in a whisper. When she first spoke to the police about the incident early the afternoon following the crime, she said that she could not identify her assailant, that there was nothing about the man by which she could identify him, and that she did not think he had known her prior to the rape.

The husband and father-in-law both knew appellant and had heard him talk before the rape occurred. Just prior to the time the prosecutrix was raped, the father-in-law received a telephone call requesting a repair truck. The husband, on another telephone, overheard the conversation. The husband knew Carter well enough prior to the rape to have picked his voice out in a lineup. The husband commented to his wife immediately after receiving the call that the caller sounded like Carter. While the husband and father-in-law were looking for the alleged broken down truck and it was becoming more and more apparent that the call was a hoax, they discussed the identity of the caller, who had not identified himself by name. The husband stated that the voice sounded like that of Carter. The father-in-law was uncertain as to whether it sounded like that of appellant or appellant's brother. However, the husband, who was interviewed by the police ten or eleven hours after the rape, did not mention his belief that Carter was the caller.

The voice identification lineups were held some six months after the rape and over five months after appellant was arrested and charged with the crime. All three of the witnesses were aware that appellant had been charged with the rape and expected him to be in the lineups. There is no showing made in the record that the characteristics of appellant’s voice were similar to those of other participants in the lineup.

In the lineup procedure used for identification by the prosecutrix the participants stood behind a sheet in a doorway and repeated in a whisper a sentence spoken by the rapist during the course of the rape. Both the prosecutrix and her husband had by this time formed the opinion that Carter was the rapist. The prosecutrix’s husband was present in the room with the prosecu-trix, and she stated that although her husband did not indicate which voice to choose she may have looked at him while the participants were speaking. Counsel for appellant at that time was one of the lineup participants. No one acting on appellant’s behalf was in the room with the prosecutrix while the lineup was being conducted. The prosecutrix knew and had heard several of the voices and had varying degrees of familiarity with the nine men in the lineup (R.31-33, 39) including appellant’s prior to the time the lineup was conducted (R.837-838). She identified appellant’s voice as that of her assailant at the lineup.

In the lineup procedure used for identifications by the husband and father-in-law the same nine participants repeated into a telephone a statement made by the caller the night of the rape. The witnesses listened to the statements on the telephones in separate rooms. Each witness was to indicate on a sheet of paper after the number of each participant whether he was the caller. They were also to note the name of any participant whose voice they knew. Both men recognized appellant’s voice as that of the caller and identified him by name. They also recognized the voices of some of the other participants. The testimony of the husband and the father-in-law was equivocal as to what point in time prior to the lineup that they considered Carter the probable assailant and that they could positively identify the caller’s voice as that of Carter.

At trial Ralph Cunningham, an investigator for the state attorney’s office, testified as a witness for the state that he had interviewed appellant a few days after the rape and tape recorded the interview without appellant’s knowledge. He then prepared a tape recording of the voices of appellant and several other persons and played it for the three witnesses for identification of the rapist. We cannot tell from the record how many other voices were included or how the test was administered to. each of the witnesses. Consequently, we cannot gauge the suggestiveness of the procedure nor the impact it had on future identifications. The husband and father-in-law identified appellant’s voice as that of the man who called for wrecker service the night of the rape, and the prosecutrix identified appellant’s voice as that of the rapist. The state proffered this evidence to the court, but it was not admitted.

Due process considerations preclude the admission of testimony concerning an out-of-court identification where the procedure engendered a substantial likelihood of misidentification in view of the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In making a determination of the admissibility of an out-of-court or in-court identification the trial court must consider the totality of the circumstances to evaluate whether there is such a substantial likelihood of misidentification that the identification is rendered unreliable. Justice Powell speaking for the majority in Neil v. Biggers enumerated five factors relating to this determination: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention;' (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the identification procedure; and (5) the length of time between the crime and the identification procedure. See also Baxter v. State, 355 So.2d 1234 (Fla. 2d DCA 1978).

The critical circumstances involved in the determination of the reliability of the out-of-court identification by the prosecutrix are: the six and one-half month span of time between the rape and the lineup; the brevity of the two or three minute encounter between the prosecutrix and the rapist during the rape; the prose-cutrix’s inability to identify appellant as the rapist at the time of the rape despite her acquaintance with him; the difference in the distances between the prosecutrix and the rapist during the rape and during the lineup; the manner a whisper was mimicked in the lineup; and the suggestion built into the lineup by the prosecutrix’s prior acquaintance with some of the participants, by her knowledge that Carter was charged with the rape, and by formulation in her mind and in the minds of others she knew that Carter was the rapist. We must say that under these circumstances the lineup was so suggestive as to engender an unreliable and, therefore, inadmissible identification. In such a situation the burden is on the state to show that any in-court identification was not tainted by the out-of-court lineup. E. g., Cribbs v. State, 297 So.2d 335 (Fla. 2d DCA 1974). There is no dispute as to the fact that the prosecutrix testified that her only basis for her identification of appellant was hearing him speak in the voice lineup. Accordingly, neither her testimony pertinent to the out-of-court identification nor an in-court identification by her is admissible.

The lineup process used for the out-of-court identification by the husband and the father-in-law suffers many of the same infirmities addressed in discussion of the other procedure. We hold that in these circumstances this procedure also was substantially likely to cause misidentification. Based on Neil v. Biggers, identifications resulting from these lineups are unreliable and inadmissible. However, there was evidence as to the husband from his testimony as to his comments to his wife and father that there was an independent basis to substantiate his belief that the caller was Carter. At trial, of course, the jury may be persuaded by the defense that the identification was mistaken. See Simmons v. United States, supra; State v. Ciongoli, 313 So.2d 41 (Fla. 4th DCA 1975). Further, it is for the jury to decide whether the caller was in fact the rapist. The father-in-law’s testimony does not pass the independent basis test because he clearly testified that he was not certain that Carter was the caller until the lineup despite his long-held suspicion that Carter was the assailant. Accordingly, neither witnesses’ testimony as to telephone identification procedure nor testimony by the father-in-law as to the identification of the caller is admissible. The husband may testify as to the identification he made of the caller on the night of the rape.

The judgment and sentence are reversed, and the case is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

GRIMES, C. J., and OTT, J., concur.


text:
    Patsy T. HAMBRICK, as personal representative of Ronald Hambrick, Deceased, for the benefit of Patsy T. Hambrick, Lori Ann Hambrick, a minor, Rhonda Jean Hambrick, a minor, Ronald Hambrick, Jr., a minor, Mark Elliott Hambrick, a minor, Wendy Lynn Hambrick, a minor, and the Estate of Ronald Hambrick, Deceased, Appellants, v. Malcolm E. BEARD, as Sheriff of Hillsborough County, Florida, John R. Clamon, and R. L. Rodriguez, Appellees.
    No. 78-569.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 1978.
    Rehearing Denied Jan. 8, 1979.

      J. Thomas Wright of Herce, Martinez & Associate, Tampa, for appellants.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellees.
   BOARDMAN, Judge.

On May 20, 1977, appellants/plaintiffs filed a two-count complaint seeking damages against appellees/defendants, Malcolm E. Beard, John Clamon, and R. L. Rodriguez, pursuant to the Florida Wrongful Death Act, Section 768.16-.27 (1977). The action concerned the death of Ronald Ham-brick which occurred on May 21, 1975. On June 20, 1977, appellants’ attorney submitted a claim for damages by letters to Malcolm Beard, sheriff of Hillsborough County, and to Bill Gunter, commissioner of insurance. .Appellees filed a motion to dismiss alleging, among other things, failure of appellants to comply with the statute of limitations. After a hearing the trial court entered an order of dismissal with prejudice, and on May 23, 1978, final judgment was entered.- This appeal of that final' judgment was timely filed.

Whether appellants complied with the statute of limitations is the sole issue for our determination.

Section 95.11(4)(d) of the Florida Statutes dictates that a wrongful death action shall be brought within two years of the date of the death at issue. Section 768.28 provides for a limited waiver of sovereign immunity. Section 768.28(6) stipulates that an action shall not be instituted against the state or one of its agencies or subdivisions until the claim is presented to the affected unit of government and the Department of Insurance and the claim is then denied. The statute further provides if no extrajudicial action is taken on the claim within six months it is deemed a denial of the claim. The claimant must present his claim within three years of the accrual of the claim. Unless there is a shorter statute of limitations for a particular cause of action, the complaint must be filed within four years of the accrual- of the cause of action. Fla. Stat. § 768.28(11) (1977). '

It is not disputed that the complaint was filed within two years of Ronald Ham-brick’s death. Appellees strongly urge that the statute of limitations was not tolled by this filing, however, because appellants failed to present their claim to the sheriff of Hillsborough County and the Department of Insurance prior to filing the complaint. There was no right to bring the action until the claim was presented as required by the statute, therefore, the complaint was not effective for purposes of compliance with the statute of limitations when it was filed. It did not become effective until June 20,1977, when the claim was presented to Beard and Gunter. Since this date exceeded the two-year statute of limitations appellees argue that the cause of action was barred. We do not agree.

Section 768.28(1) waives immunity from suit for the state and its agencies and subdivisions. State agencies and subdivisions include “the executive departments, the legislature, the judicial branch, and the independent establishments of the state; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities.” Fla.Stat., § 768.28(2). According to the plain and obvious meaning of Section 768.28(6) it does not apply to individuals. It is clear that only governmental units are included in this section of the statute. In Johnson v. Wilson, 336 So.2d 651, 652 (Fla. 1st DCA 1976) the First District Court of Appeal held that a sheriff is “not a municipality, is not the State of Florida, and is not a political subdivision.” We go further and note that a sheriff is a public officer, not the executive, legislative, or judicial branch, an independent establishment of the state, or a corporation. Accordingly, Section 768.-28(6) is not applicable to an action brought against the defendants named in the complaint in the case before us.

The complaint was timely filed under Section 95.11, Florida Statutes. Therefore, it was error for the trial court to dismiss the complaint for failure to comply with the statute of limitations.

Due to our resolution of this issue it is not necessary to address the other point raised on appeal.

REVERSED and REMANDED for further proceedings consistent with this opinion.

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

      . Although not raised we do comment that appellants’ acts of filing their claim with the sheriff of Hillsborough County and the Department of Insurance in an attempt to comply with Section 768.28(6) has no effect on their right to contest its applicability.

      . Appellees have not argued that the complaint is not effective until the claim is denied even though such an argument logically follows their analysis.

      . We do not consider the applicability of another section of the statute, Section 768.28(9), to these appellees. Appellees may have immunity from suit based on their position as public officers or they may have waived any immunity by the acquisition of liability insurance, but that issue is not before us.

      . This opinion does not address the effect of this difference on a wrongful death action brought against the state or one of its agencies or subdivisions which is filed within two years of the date of death but prior to compliance with Section 768.28(6).


author: McCORD, Chief Judge.

text:
    Julian C. HEADLEY, II, Phillip A. Poole, Lillian H. Poole, James D. Hartsfield and M. D. Lamb, Jr., Appellants, v. Stanley L. PELHAM, Appellee.
    No. HH-216.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1978.

      James P. Judkins, of Davis & Judkins, Tallahassee, for appellants.
    Gene D. Brown, of Brown & Hart, Tallahassee, for appellee.
   McCORD, Chief Judge.

This appeal is from a final judgment in foreclosure finding that the lien of appellee on which he sought foreclosure against certain property was superior to a judgment lien of appellants. We affirm.

On July 19, 1972, appellee Stanley Pel-ham loaned the sum of $20,000 to Pelham Enterprises, Inc., a corporation founded by his brother, Bruce, the loan being evidenced by a cancelled check in the amount of $20,-000. It was to be repaid with interest at the rate of 8%. Appellee had no interest in Pelham Enterprises at that time. Thereafter, Pelham Enterprises merged with Heritage Group, Inc., a corporation in which ap-pellee’s brother Bruce owned 49% of the stock, and Heritage assumed the obligations of Pelham Enterprises. Subsequently, Woodrun Properties, Inc., became a subsidiary of Heritage with Heritage owning 90% of the Woodrun stock.

Appellee’s $20,000 loan was originally secured by a second mortgage on property owned by Pelham Enterprises located on Hartsfield Road. When that property was sold, the security was changed to a second mortgage on other property located on Belmont Road. The loan was being repaid by Pelham Enterprises in periodic installments and with the merger, Heritage continued the payments. Later, the property on Belmont Road was sold, and appellee gave up his security interest in that property in exchange for assignment of a contract for deed previously given by Woodrun to Mr. and Mrs. Dugan covering the property which is the subject matter of this suit. At this time, appellee owned 1% of the stock of Heritage and 5% of the stock of Woodrun.

In the latter part of 1975, the Dugans decided that they desired a note and mortgage in lieu of their contract for deed and were informed that the contract for deed had been assigned to appellee. Appellee agreed to the change, and a promissory note and mortgage from the Dugans in favor of appellee were executed and delivered on January 28, 1976. On January 26, 1976, the escrow agent appointed at the time of the execution of the contract for deed delivered Woodrun’s deed to the Dugans and the Dugans’ mortgage to appellee was recorded on January 29, 1976.

At the time when Woodrun became a subsidiary of Heritage, it owned property it had purchased from Mrs. L. K. Edwards which was encumbered by a first mortgage to Mrs. Edwards securing a note in the approximate amount of $1,000,000. Appellants held a second mortgage on that property securing a note of approximately $600,-000. On April 1, 1975, Woodrun defaulted on the Edwards note and she foreclosed. On December 15, 1975, Woodrun defaulted on appellants’ note, and they then cross-claimed against Woodrun in Edwards’ foreclosure action. Final judgment was entered in favor of appellants against Wood-run in the amount of $564,770.56 plus interest and attorney’s fees on March 16, 1976, and was recorded on that date. Appellants’ second mortgage lien against the Woodrun property was extinguished by Edwards’ foreclosure of the first mortgage.

Reverting back to the appellee-Dugan transaction, the Dugans on May 24, 1976, recorded the warranty deed which had been delivered to them on January 26, 1976. Subsequently, the Dugans defaulted on their note to appellee, and appellee instituted this foreclosure action on the property involved in that transaction. Appellants were made parties to this action because of their judgment, and they counterclaimed against appellee alleging that the lien of their judgment against Woodrun was superior to appellee’s mortgage lien; that appellants’ claim to the subject property should be declared superior to appellee’s claim. The trial court ruled against that contention and entered final judgment in favor of appellee. This appeal was taken from that ruling.

Appellants contend that appellee cannot defeat the lien of appellant’s judgment because any interest appellee received in the property from Woodrun is in violation of § 608.55, Florida Statutes (1973). The pertinent provisions of that statute cited by appellants are as follows:

“No corporation which shall have refused to pay any of its notes or other obligations when due, nor any of its officers or directors, shall transfer any of its property to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, or upon any other consideration than the full value of the property paid in cash.
‘ * * * * * * .
Every person receiving by means of any such prohibited act or deed any property of a corporation shall be bound to account therefor to its creditors or stockholders.
* * * * * *
Every transfer or assignment or other act done in violation of the foregoing provision of this section shall be void except as herein before provided. . . . ”

Appellants argue that at the time Wood-run transferred its interest in the Dugan contract to appellee, Woodrun was heavily indebted, insolvent and unable to pay its debts; that under the above statute the transfer by Woodrun of its interest in the Dugan contract to appellee, one of its stockholders, was void, and thus appellants’ judgment is superior to appellee’s mortgage which was obtained as a result of Wood-run's transfer to appellee of its interest in the contract for deed. In response, appellee points out and the trial court apparently found that there was no evidence that at the time of the transfer Woodrun had refused to pay its obligations when due or that the transfer was payment for a debt for which the consideration therefor was less than the full value of the property paid in cash. The proof required under the above statute is something more than a showing that the corporation had unpaid debts. See Venice East, Inc. v. Manno, 186 So.2d 71 (Fla. 2 DCA 1966), where our sister court of the Second District, holding § 608.-55 afforded no relief to plaintiffs under the facts of that case, stated:

“There is sufficient evidence in the record to show that plaintiffs had not paid all its obligations when due and had postponed payment on several bills. There was no showing, however, that plaintiffs had absolutely refused to pay these debts. ‘Refused’ and ‘failed’ are not necessarily synonymous. We concede that there might be instances where repeated postponement would actually amount to refusal, but we do not feel this to be the case here . It has been held that where a corporation may be in straitened financial circumstances and have difficulty meeting its obligations, it has not necessarily reached the extreme position of refusing to pay within the meaning of the statute [citations omitted]. In the instant case there seems to be no doubt that at the time the conveyances were made to the defendants, plaintiff corporations were in straitened financial circumstances, but we do not feel that they had refused to pay their obligations within the meaning of § 608.55, Fla.Stat., F.S.A., and thus plaintiffs are afforded no relief under the statute.”

Appellants further contend that the conveyance by Woodrun of security to appellee for appellee’s original $20,000 loan to Pelham Enterprises, Inc., for which Wood-run assumed responsibility was a fraudulent conveyance barred by § 726.01, Florida Statutes. That statute voids transfers of property by a debtor with intent to hinder or frustrate a creditor from collecting his debt. The burden is upon one alleging fraud to prove it, the presumption being against the existence of fraud. Scott v. Dansby, 334 So.2d 331 (Fla. 1 DCA 1976). Such proof must be by clear and convincing evidence. Middleton v. Plantation Homes, 71 So.2d 503 (Fla.1954). Whether fraud is present in a particular transaction is to be determined by the particular facts sur-' rounding the conveyance. Stelle v. Dennis, 104 Fla. 384, 140 So. 194 (1932). The trial judge, in considering all of the circumstances surrounding the transactions in this case, determined that fraud did not exist. We agree. Appellee had originally loaned Pelham Enterprises, Inc. (a corporation in which he had no interest at the time) the sum of $20,000. That loan was first secured by a second mortgage on certain property owned by Pelham Enterprises. As previously outlined, the security for this debt was subsequently changed with appellee’s consent in order that Pelham Enterprises, Inc., and other corporations allied with it could sell the property covered by the security. There is nothing in the evidence to show appellee was placed in any better financial position by the changes in his security or that he was given any preferential treatment.

As a final point, appellants assert that their judgment lien against Woodrun creates in them a superior lien on the subject'property. There is a fallacy in appellants’ contention, however. Appellants’ judgment is not against the Dugans but is against Woodrun. At the time of the entry of their judgment on March 16, 1976, title to the subject property was not in Woodrun but was vested in the Dugans. Appellants stipulated that the deed was delivered to the Dugans on January 26, 1976. Title, of course, passed upon transfer of the deed, and appellants have not attacked that deed. Thus, appellants’ judgment lien has not attached to the subject property. Appellants had constructive notice of the Dugans’ interest in this property by virtue of the contract for deed which had been executed and recorded on August 14, 1974, and the Dugans’ subsequent mortgage of the property to appellee (containing full covenants of warranty) which was recorded on January 29, 1976.

AFFIRMED.

BOYER, J., and McLANE, RALPH M., Associate Judge, concur.

      . The contract for deed had been executed and recorded on August 14, 1974.

      . The mortgage was inadvertently dated January 23, 1975, through mistake as the result of the mortgage having been prepared in 1975 and dated 1975 but not having actually been executed until 1976.


text:
    James R. OLIPHANT, Appellant, v. STATE of Florida, Appellee.
    No. 77-1963.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 1978.
    Rehearing Denied Jan. 29, 1979.
    Jack 0. Johnson, Public Defender, Paul C. Helm, Asst. Public Defender, and David Wm. Boone, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   ON PETITION FOR REHEARING

PER CURIAM.

Petition for rehearing is granted, and our original opinion is withdrawn.

Reversed. See State v. Oliphant, 351 So.2d 418 (Fla.2d DCA 1977).

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


text:
    Robert RINDOM, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2411.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Rehearing Denied Jan. 30, 1979.
    Hirschhorn & Freeman and Joel Hirsch-horn, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, J., and CHARLES CARROLL (Ret.), and TYSON, ROBERT W., Jr., Associate Judges.
   PER CURIAM.

Affirmed. State v. Butler, 325 So.2d 55 (Fla. 3d DCA 1976); State v. Hanigan, 312 So.2d 785 (Fla. 2d DCA 1975); Lawson v. State, 251 So.2d 683 (Fla. 3d DCA 1971).