author: PER CURIAM.

text:
    Lena A. BARTOCCI, Petitioner, v. Neno J. BARTOCCI, Respondent.
    No. 51288.
    Supreme Court of Florida.
    Jan. 12, 1978.
    Frank A. McClung, Brooksville, for petitioner.
    Joseph E. Johnston, Jr., of the Law Offices of Joseph E. Johnston, Jr., Brooksville, for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. The Writ was issued; and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the Writ must be and is hereby discharged and the Petition for Writ of Certiorari is dismissed.

It is so ordered.

OVERTON, C. J., and ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Florida, Appellant, v. Alan Ross VINACKE, Appellee.
    No. 51648.
    Supreme Court of Florida.
    Jan. 12, 1978.
    Robert L. Shevin, Atty. Gen. and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellant.
    John C. Englehardt, of Butler & Engle-hardt, Orlando, for appellee.
   PER CURIAM.

Affirmed. Rollins v. State, 354 So.2d 61 (Fla.1978).

ADKINS, Acting C. J., and BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Morgan F. JONES, Respondent.
    No. 52794.
    Supreme Court of Florida.
    Jan. 12, 1978.
    David G. McGuenegle, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline.

On November 10, 1977, The Florida Bar filed its Petition alleging:

“Respondent’s executed plea, received by The Florida Bar on October 10,1977, is a conditional guilty plea to the grievance committee report and record in exchange for a public reprimand to be published in the Southern Reporter and taxation of costs against him in the amount $262.31.
“Respondent who practices in Jacksonville, Florida, was retained in August or September 1974, to represent Ted Hardie Bennafield, whose wife had filed a petition for dissolution of marriage on July 25, 1974, in Tampa, Hillsborough County, Florida. In this petition she requested child support, alimony, attorneys fees and partition of the real property. Mr. Ben-nafield paid respondent a total of $250 to represent his interests in the case. Respondent filed an answer for his client by mail on September 10, 1974, in which his client did not oppose the dissolution but contested the other matters including his ability to pay support, alleged his wife was employed and that the property had been purchased solely in his name.
“Thereafter, the respondent failed to advise his client that the case had been set down for final hearing in Tampa on December 4, 1974. Neither he nor his client attended that hearing and the court was not notified in advance they would not be present. At hearing, the court entered an order granting the requested dissolution of marriage, ordered Mr. Bennafield to transfer his interest in the real property to his ex-wife as lump sum alimony, directed him to pay $10 a week in child support for his minor child along with a $1 collection fee weekly and ordered him to pay his ex-wife’s attorneys fee in the amount of $300 and $75 for court costs.
“After entry of the court’s order on January 15,1975, Mr. Bennafield was furnished a copy of the order by respondent and also advised by the court where to pay the child support. Mr. Bennafield’s subsequent contacts with respondent proved unsatisfactory and no post judgment relief was requested through or obtained by respondent for his client. Thereafter, these proceedings arose. The grievance committee found respondent’s conduct violated Disciplinary Rules 1— 102(A), 6-101(A) and 7-101(A) of The Florida Bar’s Code of Professional Responsibility.”

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, Morgan F. Jones, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of two-hundred and sixty-two dollars and thirty-one cents ($262.31) are hereby taxed against the Respondent.

It is so ordered.

OVERTON, C. J., and ENGLAND, HATCHETT, KARL and DREW (Retired), JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Ronnie James LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 76-909.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1977.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, and Laura Sistrunk, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY, J., and DEAN, ROY E., Associate Judge, concur.

ANSTEAD, J., dissents, with opinion.

ANSTEAD, Judge,

dissenting:

I would reverse for a new trial. During cross-examination of a state’s witness, Detective Winger, defense counsel elicited the following testimony:

“Q. And after you advised him that you were not going to ask him any questions, he didn’t say anything, did he?
A. No.”

Shortly thereafter, on redirect examination by the prosecutor, the following took place:

“Q. Did he ever give you any explanation whatsoever as to a shooting?
A. No, sir.”

At this point defense counsel moved for a mistrial on the grounds that this exchange constituted an improper comment on the defendant’s right to remain silent. The trial court denied the motion but, the next morning, gave the jury a lengthy instruction to disregard such testimony. The trial court recognized the error and did his best to correct it by the detailed instruction to the jury.

On appeal the state contends that the error was harmless, in view of the question asked by the defense. I cannot agree. The Florida Supreme Court has ruled that the harmless error doctrine should not be applied to these situations. Bennett v. State, 316 So.2d 41 (Fla.1975). And, even if such doctrine could be applied, I cannot accept the state’s argument that the questions by the defense and the state were the same. Obviously, the implication of the state’s question was that the defendant had an obligation to give an explanation of the incident involved and that he never gave such an explanation. This is reversible error by the state. Farese v. State, 328 So.2d 548 (Fla. 1st DCA 1976).


text:
    CONTINENTAL MORTGAGE INVESTORS, a Massachusetts Business Trust, Appellant, v. SAILBOAT KEY, INC., a Florida Corporation, Appellee.
    No. 75-1686.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.
    Rehearing Denied Feb. 10, 1978.

      Sibley, Giblin, Levenson & Glaser, Miami, Richard H. M. Swann, Coral Gables, for appellant.
    Lapidus & Hollander, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

The mortgagee, Continental Mortgage Investors, appeals an adverse judgment of $1,321,924.06 plus costs in favor of the mortgagor, Sailboat Key, Inc., in this foreclosure action based upon a determination that a loan agreement was usurious.

Burton Goldberg, president of Sailboat Key, Inc., entered into negotiations on behalf of Sailboat Key with Continental Ad-visors for financing the acquisition and development of an island in Biscayne Bay known as Fair Isle. Continental Advisors, which is based in Coral Gables, is the advis- or of appellant, Continental Mortgage Investors (hereinafter referred to as CMI), a Massachusetts business trust with offices in Boston. On December 30, 1969 CMI sent a loan commitment letter to Sailboat Key setting out the following terms: (1) a 24-month loan in the principal amount of $3,350,000 bearing interest at 14% per an-num; (2) a 2% discount on the face amount of the loan to be taken by CMI (i. e., $67,000); (3) as additional consideration, receipt by CMI of 50% of the stock of the borrower, Sailboat Key, Inc.; (4) the right of first refusal on construction loans; (5) designation of the laws of Massachusetts as governing; (6) a 1% commitment fee to be paid by borrower upon acceptance of the commitment; however, upon closing the loan within 30 days of the date thereof, the 1% fee would be credited against the discount of the loan. Burton Goldberg paid CMI the commitment fee of $33,500 on behalf of Sailboat Key. All the necessary documents were prepared by CMI’s advisor in Florida, and on January 22, 1970, in the Boston offices of CMI, the parties executed these documents which included a loan agreement, a note secured by a first mortgage, personal guarantees of Burton Goldberg and his wife and stock pledge agreements. The 1% commitment fee was credited against the discount of the loan, and CMI began disbursing the funds to Sailboat Key. In August 1971 the loan was in default for Sailboat Key’s failure to make the interest payments on the due dates and the parties reached the following settlement agreement: (1) CMI to advance an additional $400,000 for which Sailboat Key would execute a note; (2) CMI to sell all of its Sailboat Key stock to Burton Goldberg for $10,000; and (3) CMI to release its right of first refusal on all construction financing for the sum of $740,000 ($190,000 payable on or before November 30, 1971 and the remainder due on November 1, 1976). In accordance with the above terms, on October 22, 1971 the parties executed a modification of loan agreement. Sailboat Key then executed a $400,000 note and $740,000 note (which bore no interest) secured by mortgages in favor of CMI which further agreed to subordinate $550,000 of the $740,-000 indebtedness in favor of an institutional lender providing $6,000,000 in financing. Thereafter, Sailboat Key borrowed $6,000,-000 from Fidelity Mortgage Investors to refinance its land development loan, and on November 5, 1971 paid CMI all the funds advanced by it totaling $2,691,412.17 and the $190,000 due under the terms of the $740,000 note.

Subsequently, Fidelity Mortgage Investors and others filed a mortgage foreclosure action naming as defendants, among others, CMI and Sailboat Key. CMI as holder of a subordinated mortgage in the amount of $740,000 filed a cross-claim against Sailboat Key which answered and raised the defense of usury. Sailboat Key also cross-claimed against CMI for return of the principal amount paid and double the amount of interest exacted on the ground that CMI had received interest at a rate in excess of 25%. CMI answered the cross-claim and pled as defenses: (1) that Massachusetts law is applicable and under the laws of Massachusetts, the loan, is not usurious; (2) that the 50% stock of Sailboat Key it received cannot be considered interest because the value thereof depended upon the success of the venture within the meaning of Section 687.-03, Florida Statutes (1975); (3) that the modification of the loan agreement of October 22, 1971 released CMI from any claims or defenses with respect to the loan; (4) that Sailboat Key is barred by the statute of limitations; and (5) that Sailboat Key cannot raise the defense of usury pursuant to Section 687.11(4), Florida Statutes (1974). Upon motion therefor, the cross-claims of CMI and Sailboat Key were severed from the main action. Sydney Lefcourt, certified public accountant, was appointed special master to make findings of fact with regard to the interest computations. CMI then voluntarily dismissed its cross-claim to foreclose the mortgage securing the $740,-000 note. The special master in his report determined that the interest on the actual principal amount loaned exceeded 15% without considering the issue of whether the receipt of the 50% equity interest in Sailboat Key by CMI represented additional interest. CMI filed exceptions to the report and a hearing was held thereon and on Sailboat Key’s cross-claim. After hearing the testimony presented, the trial judge concluded that (1) Florida law and not Massachusetts law was applicable because the only purpose in selecting Massachusetts law was to evade Florida’s usury laws; (2) a 2% or $67,000 discount was taken and CMI’s bookeeping records so indicated; (3) Sailboat Key is not barred by the statute of limitations as the statute had not yet begun to run; (4) the stock in Sailboat Key which CMI received as additional consideration was valued at $987,500 when CMI took it and is considered as interest; (5) CMI did not provide funds for actual construction of the project and had the right, not the obligation, to make such a loan which it declined to make; (6) in fact, CMI forced Sailboat Key to repurchase the stock from CMI (the 50% equity interest in the project) for $750,000; and (7) the $10,000 received for the stock, and the $190,000 payment on the $740,000 note were additional interest on the loan. The trial judge concluded that the 2% discount, the $10,000 cash payment and the $740,000 note are additional interest which resulted in an interest rate in excess of 25%. He then determined that the proper penalty is twice the amount of interest actually exacted and entered judgment for $1,321,924.06 plus costs in favor of Sailboat Key and further held that CMI could not recover the $550,000 balance on the $740,000 note.

A threshold question raised in this appeal is whether the laws of Massachusetts as appellant contends, or the laws of Florida as appellee argues is applicable to the instant transaction.

An exception to the general rule that a contract valid under its governing law is valid everywhere is the rule that where the enforcement of the agreement would violate the fixed, settled or strong public policy of the state in which the action is brought, it will not be enforced by that state. See 15A C.J.S. Conflict of Laws § 4(10) (1967); 17 C.J.S. Contracts § 16 (1963); and Davis v. Ebsco Industries, Inc., 150 So.2d 460 (Fla. 3d DCA 1963); Bond v. Koscot Interplanetary, Inc., 246 So.2d 631 (Fla. 4th DCA 1971). The public policy of a state is the law of the state whether found in its constitution, statutes, judicial records or otherwise. See 17 C.J.S. Contracts § 16e (1963) and Davis, supra; C & D Farms, Inc. v. Cerniglia, 189 So.2d 384, 386 (Fla. 3d DCA 1966); Bond, supra. The public policy in this state with respect to usurious contracts and corporations is found in Florida Statute 687.02 (1975) which dates back to 1955 and provides that “any contract whereby a corporation undertakes to pay an interest rate higher than fifteen per annum is hereby declared usurious.” The prime purpose of the usury law is to protect needy borrowers by penalizing unconscionable moneylenders. Stubblefield v. Dunlap, 148 Fla. 401, 4 So.2d 519 (1941). The contract in this case is far in excess of the maximum 15% rate (which will be discussed in detail infra), and to apply Massachusetts law and enforce this agreement would violate Florida’s well settled and strong public policy.

There is a second compelling reason to hold Massachusetts law inapplicable. Where parties have expressly designated the governing law, the only question for the court to determine is whether they acted in good faith or in bad faith for the purpose of evading the law of the place to which their contract is really referable. See 45 Am. Jur.2d Interest And Usury § 21 (1969). Thus, if a contract of loan secured by a lien on real estate is made with the intent and purpose to evade the usury laws of the jurisdiction where the real estate is situated, its laws will govern. 91 C.J.S. Usury § 4(8) (1955); 45 Am.Jr.2d Interest and Usury § 31 (1969) and Thomson v. Kyle, 39 Fla. 582, 23 So. 12 (1897); Beacham v. Carr, 122 Fla. 736, 742, 166 So. 456, 459 (1936). With respect to the issue of whether the parties acted in good or bad faith in their designation of the governing law, effect will be given to their intention only insofar as that intention is directed to the law of the place that has a real and vital connection with the transaction. 45 Am.Jur.2d Interest and Usury § 21 (1969); May v. United States Leasing Corporation, 239 So.2d 73 (Fla. 4th DCA 1970). Which state has a real and vital connection with the transaction is a question of fact to be determined by the trier of the facts. See May, supra. The judge determined that Massachusetts had no real connection with this transaction and the choice of Massachusetts law was a scheme to evade Florida’s usury law and to exact greater interest than Florida law allows. This determination was based upon the following findings of fact:

“The testimony, unopposed, reflects that the loan was to a Florida borrower upon security of Florida real estate. The loan was negotiated in Florida. The loan documents were prepared in Florida by the Advisor to the Trust which approved all loans. The Advisor was located in Florida and was headed by a Florida lawyer. The money was disbursed to the borrower in Florida. The only connection with Massachusetts was that the borrower, its attorney and CONTINENTAL’S officer who handled the transaction took all of the loan documents which had been prepared in Florida, got on a plane at Miami International Airport and flew to Logan Airport in Boston, Massachusetts. There they got off the plane, went to the offices of CONTINENTAL MORTGAGE INVESTORS, signed the documents, took the documents with them, got back on the plane and flew back to Miami. The documents provided that Massachusetts law should apply.”

The record substantiates these findings and, therefore, the trial judge was correct in holding Florida law applicable. Cf. Continental Mortgage Investors v. Village By The Sea, Inc., 252 So.2d 833, 835 (Fla. 4th DCA 1971).

CMI contends that the charge by the lender and the payment by the borrower of a 1% commitment fee is not an interest payment and cannot be included as interest in the computation to determine the rate of interest charged by the lender.

CMI argues that the trial judge erred in finding that a 2% as opposed to a 1% discount was charged and collected because the 1% commitment fee was credited against the discount as provided in the commitment letter of December 30, 1969 which reads in pertinent part:

* * * * * *
“14. Commitment Fee:
“A commitment fee of 1% of the loan amount shall be paid by the Borrower upon accepting this commitment, along with an executed copy of this letter. “If within 30 days from the date of this letter the loan is closed in accordance with the terms and conditions as set forth herein, the above fee shall be credited against the discount of the loan. If, through no fault of the Lender, the loan is not closed in accordance with this letter, the fee shall be deemed fully earned by Continental Mortgage Investors.”
******

While we agree with appellant that a commitment fee is not a charge for the use of money and cannot be categorized as interest, the events of the instant case demonstrate that, in fact, no commitment fee ultimately was charged. Although what was initially termed a commitment fee was paid by the borrower, the loan was closed within 30 days. Accordingly, CMI credited the fee to the 2% loan discount and, in effect, waived the commitment fee. The bookkeeping records of CMI also reflect a discount of 2%.

Appellant next urges as error, including in the computation of the interest its receipt of an equity position in the project of the borrower.

Pursuant to the terms of the loan agreement, CMI received 50% of the outstanding capital stock of Sailboat Key, Inc. Based upon the uncontested testimony, the judge found that at the time the stock was issued to CMI the parties agreed that the total value of all the Sailboat Key stock was $1,975,000 and, therefore, the value of CMI’s 50% equity was $987,500. CMI basically contends that the value of the equity in the project which it received (a so called “equity kicker”) substantially depended upon the success of the venture and should have been excluded from the calculation of interest as provided in Section 687.03(4), Florida Statutes (1974).:

“(4) If a loan exceeds $500,000 then, for the purposes of this chapter, interest on that loan shall not include the value of property charged, reserved, or taken as an advance or forbearance, the value of which substantially depends on the success of the venture in which are used the proceeds of that loan. Stock options and interest in profits, receipts, or residual values are examples of the type of property the value of which would be excluded from calculation of interest under the preceding sentence.”

We remain unconvinced that the trial judge erred. First, the statute gives as examples of “equity kickers” stock options and interest in profits, etc., not shares of stock. Second, the value of the property must substantially depend upon the success of the venture. Here, the uncontroverted evidence showed the stock received by CMI was worth $987,500 at that time and this value did not depend upon the success of the venture.

CMI for the next two points on appeal contends that (1) the penalty for charging usury of double the amount of interest paid is not applicable to a corporate borrower, and (2) a corporate borrower of a sum in excess of $500,000 may not plead usury defensively or affirmatively. As authority for the above contentions CMI cites to Tel Service Co. v. General Capital Corporation, 227 So.2d 667 (Fla.1969) and Section 687.11, Florida Statutes (1975):

“687.11 Interest rates; individuals secondarily liable on corporate obligations.
“(1) No individual secondarily liable as endorser, guarantor, surety, or otherwise on any corporate obligation shall be required, in any proceeding for collection of interest in the courts of this state, to pay any interest in excess of 10 (10%) percent per annum, and any interest claimed therein against such individual in excess of 10 (10%) percent per annum shall be forfeited; and no corporation, in any such proceeding in the courts of this state where the interest is proven to exceed 15 (15%) percent per annum, shall be required to pay any interest, and in such event all interest shall be forfeited.
“(2) All laws or parts of laws in conflict herewith and all other statutory penalties for usury applicable to loans to corporations are hereby repealed.
* * * * ’ * *
“(4) The provisions of this section shall not apply to obligations which exceed $500,000.”

CMI argues that pursuant to subsection (4) passed by the legislature in 1974, there is no penalty whatsoever because the loan to Sailboat Key exceeded $500,000. We find this interpretation erroneous. First, the title of the act in no way indicates that the act was meant to repeal usury on loans to corporations. Second, Section 687.11, Florida Statutes (1974) is to be construed so that it is meaningful and harmonizes in all of its parts with all sections of Chapter 687, Florida Statutes. See Wilensky v. Fields, 267 So.2d 1 (Fla. 1972). Bearing this in mind, we construe subsection (4) to mean that the penalty for usury applicable to loans to corporations in the amount of $500,000 or less is forfeiture of the interest as provided in subsection (1). . See Tel Service Co., supra. However, where the usurious transaction involves a loan to a corporation in excess of $500,000, then the penalty will be as provided elsewhere in Chapter 687, to wit: Section 687.04, Florida Statutes (1975), which provides a penalty of double the amount of the interest. To adopt CMI’s view would be to negate subsection (1) of Section 687.11 with respect to loans in excess of $500,000 and also Section 687.03(1) and (4), Florida Statutes (1976) with respect to corporations which borrow in excess of $500,000. Finally while this appeal was pending, the Florida Supreme Court has decided this question adverse to CMI. See Woodgate Development Corporation v. Hamilton Investment Trust, 351 So.2d 14 (Fla. Supreme Court Case No. 50,027, opinion filed June 9, 1977).

In this case the interest exacted is in excess of 25% and in view of our construction of subsection (4), the question then arises of whether there is also a forfeiture of principal pursuant to Section 687.-071(7), Florida Statutes (1975) effective since October 1, 1969. For the reason cited in Wilenksy v. Fields, 267 So.2d 1 (Fla. 1972), supra, we hold there is not forfeiture of the principal.

In Wilensky the parties had entered into the usurious transaction prior to the enactment of Section 687.071, Florida Statutes in 1969 and finding this statute to be criminal in nature, the Supreme Court refused to apply it retroactively. The Court reasoned:

“. . . Section 687.071 was enacted to provide criminal penalties where extensions of credit were made in violation of that section.
“[6] Article I, Section 10, Florida Constitution, 1968, provides that no ex post facto law shall be passed. An ex post facto law is ‘one which, in its operation, makes that criminal which was not so at the time the action was performed, or which increases the punishment, or, in short, which in relation to the offense or its consequences alters the situation of a party to his disadvantage.’ Higginbotham v. State (Fla. 1924) 88 Fla. 26, 101 So. 233.” Wilensky, supra, at 5.

Although Section 687.071, Florida Statute (1969) was unquestionably effective in January 1970 when the parties in this cause entered into their loan agreement, Section 687.11(4), Florida Statutes (1974) had not been enacted and, thus, the penalty was limited to forfeiture of interest. To hold that CMI is also subject to the penalty of forfeiture of the principal would, in essence, be giving Section 687.071, Florida Statutes (1969) retroactive effect in violation of Article I, Section 10, Florida Constitution (1968). See Wilensky, supra; Padgett v. First Fed. Sav. § L. Ass’n of Lake Worth, 297 So.2d 101 (Fla. 4th DCA 1974), cert. discharged 329 So.2d 313 (Fla. 1976). Thus, the trial judge was correct in determining the proper penalty to be a forfeiture of double the interest exacted.

CMI for its next point argues that Sailboat Key’s claim is barred by the 2-year statute of limitation in that the $3,350,000 note and the $190,000 on the $740,000 note were paid on November 5, 1971, and Sailboat Key did not file its claim charging usury until December 1974. We cannot agree.

The statute of limitation begins to run from the date that the last installment becomes due and payable. General Capital Corporation v. Tel Service Co., 212 So.2d 369 (Fla. 2d DCA 1968). Where a usurious contract is renewed by the giving of a renewal or substituted contract, the usury follows into and becomes a part of the latter contract. Wenck v. Insurance Agents Finance Corporation, 99 So.2d 883, 886 (Fla. 3d DCA 1958). In the case sub judice the parties entered into a two year loan agreement in 1970 which was usurious. Subsequently, they entered into a substituted contract in October 1971 and the last payment due thereunder was November 1, 1976. The usury followed into and became a part of this substituted contract under which the last payment was not due until November 1, 1976. The statute of limitation had not begun to run upon the filing of Sailboat Key’s usury claim. Furthermore, the defense of usury is always available as a defense where the lender, as here, brings an action to enforce the contract. See Beekner v. L. P. Kaufman, Inc., 145 Fla. 152, 198 So. 794 (1940).

Lastly, CMI contends that the trial court erred in finding that CMI had a corrupt intent to charge more than the legal rate of interest.

The trial judge found the requisite corrupt intent on the part of CMI. There is competent substantial evidence in the record to support this finding and we cannot and shall not substitute our judgment for that of the trier of the fact. See Shaw v. Shaw, 334 So.2d 13 (Fla. 1976); Vance v. Florida Reduction Corporation, 263 So.2d 585 (Fla. 1st DCA 1972).

On cross-appeal Sailboat Key argues that the trial judge erred in not applying the penalty of forfeiture of the principal pursuant to Section 687.071(7), Florida Statutes (1969). In light of our discussion with respect to this issue, the cross-claim lacks merit.

Affirmed.

      . The special master found that the $740,000 note was not given for the consideration of CMI’s release of its right of first refusal to provide the construction financing since CMI had already declined; but rather, in reality, was the difference between the negotiated figure of $750,000 for the repurchase of the stock and the $10,000 cash payment by Sailboat Key.

      . $ 393,962.03 interest charged
      67,000.00 2% discount
      10,000.00 payment for stock
      190,000.00 payment on $740,000 note
      $ 660,962.03
      _x 2
      $1,321,924.06

      . which has no usury statute applicable.

      . Financial Fed. Sav. & L. Ass’n v. Burleigh House, Inc., 305 So.2d 59 (Fla.3d DCA 1974).

      . “CHAPTER 74-232
      “House Bill No. 3955
      “AN ACT relating to the usury laws; amending 687.03 and 687.11; providing an explanation of which loans are deemed for $500,000 or more, clarifying method of calculating interest under Chapter 687 and property included with definition; relating to guarantors; and providing an effective date.
      “Be It Enacted by the Legislature of the State of Florida:

      “Section 2. Section 687.11, Florida Statutes, is amended by adding a new subsection (4) to read:
      “687.11 Interest rates; individuals secondarily liable on corporate obligations.—
      “(4) The provisions of this section shall not apply to obligations which exceed $500,000.”


text:
    ELECTRONIC SHOWCASE, INC., a Florida Corporation, and Raymond L. Williams, Appellants, v. KPF ENTERPRISES, INC., a Florida Corporation, W. H. Kiser, and Bernie Fraden, Appellees. ELECTRONIC SHOWCASE, INC., a Florida Corporation, and Raymond L. Williams, Appellants, v. TELEDYNE ACCEPTANCE CORPORATION, Appellee.
    Nos. DD-142, DD-143.
    District Court of Appeal of Florida, First District.
    Sept. 30, 1977.
    A. G. Condon, Jr. of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for appellants.
    Donald H. Partington of Clark, Parting-ton, Hart & Hart, George Phillips, Pensacola, for appellees.
   PER CURIAM.

AFFIRMED on the authority of Butts v. Dragstrem, 349 So.2d 1205 (Fla. 1st DCA 1977).

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


text:
    Rupert B. HARTMAN, Ethel J. Hartman, and Emil C. Krisch, Appellants, v. W. O. UNSWORTH BUILDERS, INC., a Florida Corporation, Appellee.
    No. 76-1782.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1977.
    Gary E. Massey of Brock, Massey & Walden, Altamonte Springs, for appellants.
    Lawrence R. Steiner of Levine & Cohen, P.A., Orlando, for appellee.
   PER CURIAM.

This is an appeal from a final judgment in favor of the appellee, W. 0. Unsworth Builders, Inc., for damages for breach of a construction contract and foreclosure of a mechanic’s lien. We find that the record supports the judgment as to damages for breach of contract but does not support the foreclosure of the mechanic’s lien. The record shows that the contract was terminated in January of 1974; but a claim of lien was not filed until August 7,1974, well past the time in which a lien may be filed.

Accordingly, the judgment is reversed in part and affirmed in part and remanded to the trial court with directions to enter judgment in accordance with the terms of this decision.

CROSS, ANSTEAD and DAUKSCH, JJ., concur.


author: ALDERMAN, Chief Judge. PER CURIAM.

text:
    Marion Alvertis YEARTY, Appellant, v. STATE of Florida, Appellee.
    No. 77-21.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.
    Rehearing Denied Feb. 7, 1978.

      Philip G. Butler, Jr., of Foley, Colton & Butler, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler and Glenn H. Mitchell, Asst. Attys. Gen., West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

The defendant appeals his conviction for shooting into a building in violation of Section 790.19, Florida Statutes (1975). The only issue raised is whether the trial court erred in denying defendant’s motion to suppress. We hold that the defendant failed to meet his burden of showing that the error complained of injuriously affected his substantial rights.

The defendant pled not guilty. After a jury was empaneled the defendant filed a written motion to suppress. The trial court, out of the presence of the jury, held a suppression hearing and denied the motion. The trial then proceeded and the jury returned a verdict of guilty. The defendant provided us with a transcript of the suppression hearing, but failed to give us a transcript of the trial.

Even if we were to conclude that the trial court erred in denying defendant’s motion to suppress, without the trial transcript we cannot be sure, and cannot presume, that the error injuriously affected the substantial rights of the defendant. This case is distinguishable from the situation where a defendant, after an adverse ruling on his motion to suppress, withdraws his plea of not guilty and enters a plea of nolo conten-dere, reserving his right to appeal. In that situation the only testimony presented is at the suppression hearing. In the present case the defendant did not change his plea; instead he elected to proceed with the trial, he was found guilty and now he is appealing his conviction.

AFFIRMED.

CROSS and DAUKSCH, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Apellant contends that his attorney and the attorney for the State, prior to the preparation of the record-on-appeal, orally agreed between themselves that a transcript of the trial proceedings was not ne-cesary for this appeal, that the State would accept the statement of facts as set out in appellant’s brief, and that the State would not raise the issue of “harmless” error. This court was not advised. Appellant now seeks a rehearing and an opportunity to supplement the record. We deny rehearing because, even accepting the facts as set out in appellant’s brief, we find that the trial court did not err in denying appellant’s motion to suppress.

REHEARING DENIED.

ALDERMAN, C. J., and CROSS and DAUKSCH, JJ., concur.

      . Section 924.33, Florida Statutes (1975), provides:
      No judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.


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

text:
    Loran V. CARLTON, Petitioner, v. STATE of Florida, DIVISION OF OCCUPATIONS, DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION and John K. Freeman, Respondents.
    No. GG-172.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1977.
    On Rehearing Feb. 8, 1978.

      Stanley Bruce Powell of Douglass & Powell, Tallahassee, for petitioner.
    Howard Hadley, Winter Garden, and Louis B. Guttman, III, Winter Park, for respondents.
   PER CURIAM.

By petition for certiorari the petitioner, Loran C. Carlton, a real estate salesman, seeks review and reversal of a final order of the respondent Florida Real Estate Commission finding that petitioner had “actively concealed his personal interest” in a parcel of property of which he was the procuring cause of the execution of a contract to purchase by one Virgil Norris for which infraction the respondent Commission imposed the maximum penalty allowed by law, suspension of his license for a period of two years. A hearing officer submitted a recommended order containing findings and conclusions. The Commission accepted the findings but rejected the conclusions. It is clear that the public records revealed that petitioner had an interest in the subject property as did the abstract and title insurance binder ultimately submitted to the prospective purchaser. Although it is apparent that petitioner was guilty of a “technical” violation the record does not establish a conscious effort to deceive nor does it reflect such conduct as to justify imposition of the maximum penalty allowed by law. (See Poirier v. Division of Health, Department of Health and Rehabilitative Services, 351 So.2d 50 (Fla. 1st DCA 1977), opinion filed August 5, 1977, authorities therein cited.) Accordingly, the petition is granted but the order of which review is sought is approved and affirmed except as to the period of suspension which is hereby reduced to one year.

IT IS SO ORDERED.

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

ERVIN, J., concurring and dissenting.

ERVIN, Judge,

concurring and dissenting.

I concur in this court’s decision there was competent and substantial evidence in support of the Commission’s finding that petitioner had concealed his personal interest in a parcel of property of which he was the procuring cause of the purchase contract. I disagree, however, with the portion of the decision reducing petitioner’s suspension to a period of one year. Section 475.25(1), Florida Statutes (1975), permits the Commission to suspend a registrant for a period not exceeding two years. This the Commission did within the exercise of its discretion. Section 120.68(12) prohibits us from substituting our judgment for that of an agency on an issue of discretion. We have reviewed the agency’s order and have found competent substantial evidence supports the findings made; however by reducing the penalty imposed we are in effect substituting our discretion for that of the agency.

As stated in Erwin v. State, Dept. of P. & O. R., etc., Bd. of Dentistry, 320 So.2d 2, 6 (Fla. 2nd DCA 1975), “Where the penalty is imposed by a peer group of professionals and is within the allowable range, [the courts are]' reluctant to disturb it.” True, in Poirier v. Division of Health, Department of Health and Rehabilitative Services, 351 So.2d 50 (Fla. 1st DCA 1977), opinion filed August 5, 1977, we recently reduced the agency’s order suspending petitioner’s license from one year to 90 days, however, we did not sustain the agency’s findings which approved all the charges filed against petitioner; we set aside a portion of the order finding the petitioner permitted the selling and fitting of hearing aids by suspended or unregistered persons. Here we have affirmed in all respects the agency’s findings. To hold as the majority has done is, in my opinion, an unwarranted incursion by our court into an area appropriately reserved to agency discretion. I would deny the petition for review and affirm the order of the Commission as entered.

ON PETITION FOR REHEARING

ERVIN, Judge.

We have reconsidered our per cu-riam opinion filed November 23, 1977, in light of the authorities cited in the petition for rehearing, and conclude that the petition should be granted. We now determine that Section 120.68(12); Florida Statutes (Supp.1976), prohibits judicial review of a penalty imposed by an agency unless abuse of discretion clearly appears from the record. It is impossible to state with precision a general rule locating the outer perimeters of appropriate agency discretion. This may only be done on a case-by-case basis. We previously recognized that judicial review to reduce penalties imposed extends to situations where an agency’s findings were in part reversed. Poirer v. Division of Health, Department of Health and Rehabilitative Services, 351 So.2d 50 (Fla. 1st DCA 1977).

In different contexts we have limited circuit courts’ jurisdiction to enjoin agency action except in most extraordinary circumstances, State ex rel. Dept. of General Serv. v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977), and their jurisdiction to render declaratory judgments in cases involving agencies. School Bd. of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977). The 1974 APA similarly requires that we proceed cautiously and with restraint in reviewing an agency’s imposition of penalties. Having determined there was competent and substantial evidence in support of the findings made by the Commission, we may not now substitute our judgment for that of the agency on an issue of discretion.

Petition for rehearing is granted and the order of the Commission affirmed.

MILLS, J., concurs.

BOYER, Acting C. J., dissents.

BOYER, Acting Chief Judge,

dissents.

I respectfully dissent. I would adhere to our original opinion.


author: LETTS, Judge.

text:
    James GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 76-1562.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 1977.
    Rehearing Denied Feb. 14, 1978.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, and Marc R. Goldstein, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

The convicted appellant appeals because of the State’s failure to furnish him with the name of a rebuttal witness upon the appellant’s demand for discovery.

We reverse.

In this case the appellant took the stand in his own defense and testified that a fellow passenger in his car had thrown certain incriminating evidence in the form of bankbooks out of the window of the moving vehicle. Thereafter a rebuttal witness was put on the stand who testified that the incriminating bankbooks were found neatly concealed behind a house and not adjacent to any road. This rebuttal testimony, which obviously demonstrated the unlikelihood of material thrown from a moving vehicle being discovered hidden in a neat pile, was objected to on the basis that the name of this witness had not been provided to the defendant. During argument on this objection, the following colloquy ensued between the court and the prosecutor:

THE COURT: I don’t see it in here, Mr. Midelis.
MR. MIDELIS: Your Honor, I believe that our office should have filed an amended answer to discovery.
THE COURT: Well, maybe they should have.
MR. MIDELIS: Well, all right, sir. It should have been filed in the courthouse. The State’s position, Your Honor, in the alternative is that the rebuttal witness does not have to be listed to the particular defense. That the defendant has testified—
THE COURT: I think you are correct in—
MR. MIDELIS: Pardon?
THE COURT: You are correct in that respect.
MR. MIDELIS: All right, sir. And we would rely upon that ruling.
THE COURT: All right.

From the above mentioned colloquy it would appear that neither the court, nor the defendant, was furnished the amended answer to the original demand for discovery which, other reference to the record reveals, was filed in the clerk’s office on the afternoon before trial. No reason was given, or enquired into, why Walker’s name was not given in answer to the original discovery demand. Accordingly, we must reverse upon the authority of Hardison v. State, 341 So.2d 270 (Fla. 2 DCA 1977), wherein the court stated:

The trial court has the discretion to determine whether failure to comply with Fla.R.Crim.P. 3.220 would result in harm or prejudice to the defendant. However, the trial court may exercise its discretion only after it has made an adequate inquiry into the circumstances surrounding the noncompliance. Smith v. State, 319 So.2d 14 (Fla.1975); Richardson v. State, 246 So.2d 771 (Fla.1971). The trial court failed to make such an inquiry. Contrary to the state’s assertion, rebuttal witnesses are not exempt from the operation of the discovery rules. Frazier v. State, 336 So.2d 435 (Fla. 1 DCA 1976). (Emphasis supplied).

See also Flynn and Story v. State, 351 So.2d 377 (Fla. 4 DCA 1977), Opinion filed November 1, 1977.

We also recognize, and agree with, the recent ruling of the Third District that failure to supply the names of rebuttal witnesses will not constitute reversible error if after enquiry is made no prejudice is shown. Holman v. State, 347 So.2d 832 (Fla. 3 DCA 1977). At first blush Holman would lend support to affirmance in the case now before us, because the defense was well aware of the identity of the rebuttal witness, a policeman led to the neatly stacked bankbooks by the appellant himself. The problem remains that the facts showing lack of prejudice in this case were gleaned from the record by this court and not brought forth by way of explanation before the trial judge. By contrast in Holman, the circumstances were enquired into and “noted” by the trial court. This being so, the necessary adequate enquiry under Hardison, supra, and Flynn, supra, was not complied with in this case. Indeed, as the above quoted colloquy establishes, it would appear that the trial judge was persuaded simply that Fla. R.Crim.P. 3.220 is not applicable to rebuttal witnesses. This was error.

In summation, and for future guidance, we will require that the circumstances of failure to supply the names of rebuttal witnesses always be enquired into before such testimony is admitted. The results of such enquiry may reveal no prejudice so that no sanctions need be imposed or may reveal some other cogent reason why the State was hitherto unable to supply the name.

REVERSED.

ANSTEAD, J., concurs.

CROSS, J., dissents without opinion.


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

text:
    Bill G. CARTEE, Payne H. Midyette, Jr., J. Lewis Hall, Jr., Ryals E. Lee, William M. Morgan, and T. Edwin Chason, d/b/a Winewood Investments, a Florida general partnership, Appellants, v. The FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. FF-316.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1977.
    Rehearing Denied Feb. 7, 1978.

      W. Dexter Douglass of Douglass & Powell, Tallahassee, for appellants.
    Robert L. Shevin, Atty. Gen., Sydney H. McKenzie, III, and David K. Miller, Asst. Attys. Gen., for appellee.
   ERVIN, Judge.

Winewood Investments appeals an order granting motion to dismiss its amended complaint for failure to state a cause of action. Winewood began discussions with then HRS Secretary O. J. Keller concerning expansion of HRS’ tenancy at the Wine-wood Office Park. These discussions are evidenced by a letter of intent to lease two buildings sent by Keller to Winewood in June, 1974, and a lease signed in August, 1974. Paragraph XVIII of the lease agreement specifically provided in part: “The obligations of the lessee under this lease agreement are subject to the availability of funds lawfully appropriated annually for its purposes by the Legislature of the State of Florida.” In a letter of understanding supplementing the lease, it was stated:

“1. The provision ... is interpreted as meaning that funds are available only to the extent that funds now available to the Department from the Legislature for lease purposes are increased beyond amount needed for increase of existing leases, such increase being funds available for the lease on Buildings 9 and 10.”

Winewood alleges it relied on this commitment in obtaining financing for the building construction; that HRS was responsible for submitting staffing patterns and other data to the Department of General Services for its approval, and to include in its yearly proposed budget a request for the space and funding called for by the lease. Winewood also alleges it was induced to construct the building on the basis of HRS’ request and relied on HRS’ good faith duty to fulfill its own requirements. Only a small fraction of the space under the proposed lease was included in the HRS budget proposal to the legislature. By March, 1975, it was apparent HRS would be unable to occupy the building, but Wine-wood continued construction in the belief an arrangement with other agencies of the state could be worked out. This was unsuccessful and at the time amended complaint was filed the office building was empty and in immediate danger of foreclosure.

Count I of the amended complaint alleges the lease is a valid obligation between the parties and was breached by HRS due to its non-performance. Count II alleges an agreement to lease, and a refusal by HRS to make a proper lease in breach of that agreement. Count III alleges the breach of HRS’ duties not to frustrate the conditions precedent constitutes an independent cause of action for breach of contract, a bilateral contract between the parties being implied in fact.

Although worded differently in the three counts, the complaint states a cause of action for breach of the leasing agreement between the parties. The agreement is alleged; HRS’ breach of the contract is alleged due to HRS’ failure to seek DGS approval and legislative funding. Resulting damages are properly alleged.

HRS responds the representations and expressions of intent by its officials cannot operate to bind the legislature and that Winewood’s construction of the building was not done in reasonable reliance upon such representations. HRS buttresses its argument by asking that we notice two factors: First, the 1975 session of the legislature was preoccupied with a shortage of state revenue caused by the recession, and second, HRS was reorganized and dispersed by Chapters 75-48, 75-49 and 75-280, Laws of Florida (1975). Such matters, however, are in the nature of defenses to the complaint. We cannot at this stage state as a matter of law HRS was justified in not pursuing its duties under the agreement to lease. Nor can we say as a matter of law Winewood was not justified in relying upon HRS to procure funding. Finally, we cannot say as a matter of law Winewood’s damages were not caused by the failure of HRS to actively seek those funds.

We repeat the usual appellate caveat: This opinion should not be taken as a comment upon the merits. We hold only a cause of action has been stated for breach of contract.

We have considered Counts IV, V and VI of the amended complaint and find the trial judge committed no error in dismissing those counts with prejudice.

The final judgment is AFFIRMED in part, REVERSED in part and REMANDED for further proceedings not inconsistent with this opinion.

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

ON PETITION FOR REHEARING

ERVIN, Judge.

Appellees in their petition for rehearing rely upon Section 216.311, Florida Statutes (1975), prohibiting any agency of the state from entering into an agreement to spend any monies in excess of the amount appropriated to the agency unless specifically authorized by law, and providing that any agreement in violation of the Section is void. Appellee also cites certain United States Supreme Court opinions, Chase v. United States, 155 U.S. 489, 15 S.Ct. 174, 39 L.Ed. 234 (1894); Leiter v. United States, 271 U.S. 204, 46 S.Ct. 477, 70 L.Ed. 906 (1926) and Goodyear Tire and Rubber Co. v. United States, 276 U.S. 287, 48 S.Ct. 306, 72 L.Ed. 575 (1928), which construed a statute of Congress similar to Section 216.311, and held any purported lease without an appropriation was void and no action could be maintained thereon. Ap-pellee did not argue in its brief, nor in oral argument, these additional authorities which were for the first time relied on in its petition for rehearing. We will not entertain them now. Fla.App.R. 3.14b. Cf. Pricewise Buying Group v. Nuzum, 343 So.2d 115, 117 (Fla.1st DCA 1977).

The petition for rehearing is DENIED.

MILLS, J., concurs.

BOYER, Acting C. J., concurring specially.

BOYER, Acting Chief Judge,

concurring specially.

I concur in denial of the petition for rehearing but not because appellee failed to raise certain authorities or arguments, now belatedly presented, in its brief. I am simply of the view, that even considering those authorities and arguments, our. original opinion is correct.


author: RAWLS, Judge. McCORD, Chief Judge,

text:
    STATE of Florida DEPARTMENT OF REVENUE, Appellant, v. MIAMI NATIONAL BANK, a National Banking Association, and Southeast First National Bank of Miami Springs, a National Banking Association, Appellees.
    No. CC-187.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1977.
    Robert L. Shevin, Atty. Gen., and Caroline C. Mueller, Asst. Atty. Gen., for appellant.
    Harvie S. Duval of Papy, Levy, Carruth-ers & Poole, Coral Gables, James D. Little and Andrew J. Mirabito, of Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for appellees.
   RAWLS, Judge.

We are here confronted with a documentary stamp tax assessment by appellant, Department of Revenue. The following factual situation was given as an example and agreed upon by the parties:

A borrows $10,000 from the bank. A signs a promissory note for $10,000 and affixes documentary stamps thereto representing the full $10,000.
Subsequently, A borrows an additional $5,000 from the bank. A signs a promissory note for $15,000 — the amount of the $15,000 representing the original borrowed amount of $10,000 plus the newly borrowed amount of $5,000. The bank attaches the old note for $10,000 to the new note and A affixes documentary stamps representing the $5,000 increase.

The trial court held that the renewal portion of the example note was not subject to documentary stamp taxation, since it fell within the exemption provisions of Section 201.09, Florida Statutes; hence this appeal by the Department of Revenue.

In a well-reasoned opinion the trial court stated:

“. . . Plaintiff and Intervening Plaintiff [appellees] are national banking associations engaged in, among other things, the loaning of money pursuant to execution of a promissory note. In the course of dealing with Plaintiffs’ customers, additional monies would be loaned over and above the amount previously borrowed for which the proper amount of documentary stamp taxes were paid. The first transaction is not at issue here. The problem arises when the first loan is renewed and the amount of the loan is increased. The practice of Plaintiffs has been to execute a single promissory note representing the total indebtedness and affixing thereto documentary stamps representing only the amount of the increase and attaching the prior note which is stamped renewed.
4. The Defendant Florida Department of Revenue [appellant] assessed Plaintiffs for documentary stamp taxes and penalties on these notes on the ground that the renewal notes did not fall within the exemption for renewal notes contained in Section 201.09, Florida Statutes. Plaintiffs filed suit for declaratory judgment as to the validity of the tax assessment and the penalty. Section 201.09, Florida Statutes, provides in part as follows:
Renewal of existing promissory note; exemption. — When any promissory note is given in renewal of any existing promissory note — such renewal note shall not be subject to taxation under this chapter if such renewal note has attached to it the original promissory note with canceled stamps affixed thereon showing full payment of the tax due thereon.
The Department of Revenue’s Regulation 12A-4-54 entitled ‘Exempt Transactions’ in sub-paragraph (d) is as follows:
Tax is due on additional advances, whether or not such additional advances increase the current obligation beyond the original mortgage, and promissory notes used in connection with the original obligation and the additional advances are taxable.
This regulation by the Department of Revenue could reasonably cause the taxpayer to believe that additional advances are taxable but that the existing indebtedness is not again taxed in order to comply with the Florida Statute 201.09. In the present case, taxes were paid on the additional advances as well as on the original notes and since the notes had the same maker and the same payees, the taxpayer would be put in the position of paying double taxation on the entire indebtedness if the Department of Revenue prevailed. Every taxpayer should pay his taxes but no taxpayer should be required to pay double solely because of a procedural requirement.
It is clear that the intent of the legislature in enacting Florida Statute 201.09 was to exempt renewal notes from taxes. Since the taxes have been paid on the original note and have been paid on the addition to the original note, the taxpayer has fully met his tax obligation to the State.
The Court is of the opinion that the case of State of Florida, Department of Revenue v. McCoy Motel, Inc., 302 So.2d 440 [Fla. 1st DCA 1974], is distinguishable from the facts in this case and is not controlling. The notes in each instance under consideration in this case involved identical payees with additional advances to such payee. The McCoy case dealt with consideration of a wrap-around mortgage involving different payees. . ."

We agree with the reasoning of the trial court and that the McCoy case is so distinguishable.

We further note that appellees’ position is in accordance with Attorney General Opinion 063-141 rendered to a former Comptroller of the State of Florida, the purpose of which opinion was the guidance of the state in determining the tax status of just such obligations as here involved.

Since appellant urges that the trial court failed to quote that portion of F.S. 201.09 which requires that the entire obligation sub judice be taxed, we quote the statute in toto:

“201.09 Renewal of existing promissory note; exemption. When any promissory note is given in renewal of any existing promissory note, which said renewal note only extends or continues the identical contractual obligations of the original promissory note and evidences part or all of the original indebtedness evidenced thereby, not including any accumulated interest thereon and without enlargement in any way of said original contract and obligation, such renewal note shall not be subject to taxation under this chapter if such renewal note has attached to it the original promissory note with canceled stamps affixed thereon showing full payment of the tax due thereon.”

Upon a careful examination of the statute it becomes readily apparent that the $10,000 portion of the stipulated example is a “renewal note” which does nothing more than extend or continue “the identical contractual obligation of the original promissory note” and that it “evidences part or all [all, in this stipulated example] of the original indebtedness.” It is also apparent that, as to the original debt, there is no “enlargement in any way of said original contract and obligation.” It therefore necessarily follows that the renewal portion of “such renewal note shall not be subject to taxation” under Chapter 201 F.S. because, as the example recites, there is attached to the renewal note “the original promissory note with canceled stamps affixed thereon showing full payment of the tax due thereon.”

Pursuant to Fla.App. Rule 2.1, subd. a (5)(b) we certify that this decision passes upon a question of great public interest.

AFFIRMED.

BOYER, J., concurs.

McCORD, C. J., dissents.

McCORD, Chief Judge,

dissenting.

After reciting the factual situation, the majority opinion quotes the opinion of the trial court as stated in the trial court’s judgment. The fallacy of the trial court’s reasoning is revealed in that portion of § 201.09, Florida Statutes, which is omitted from the trial court’s opinion. I quote the statute in full as follows and underline the portion which was omitted from the trial court’s opinion.

“Renewal of existing promissory note; exemption. When any promissory note is given in renewal of any existing promissory note, which said renewal note only extends or continues the identical contractual obligations of the original promissory note and evidences part or all of the original indebtedness evidenced thereby, not including any accumulated interest thereon and without enlargement in any wav of said original contract and obligation, such renewal note shall not be subject to taxation under this chapter if such renewal note has attached to it the original promissory note with canceled stamps affixed thereon showing full payment of the tax due thereon.”

When we apply the statute, without omitting the underlined portion above, to the factual situation as stated initially in the majority opinion, it is crystal clear that the $15,000 renewal note given in lieu of the $10,000 note is not covered by the exemption. It does not only extend or continue the identical contractual obligations of the original promissory note without enlargement in any way of said original contract and obligation. It clearly enlarges the obligation from $10,000 to $15,000, and thus the exemption does not apply. Since the wording of the statute is not ambiguous, there is no basis for resolving an ambiguity. We are not privileged to judicially legislate by amending the clear words of the statute.

The ruling in the case sub judice should be controlled by our opinion in State, Department of Revenue v. McCoy Motel, Inc., 302 So.2d 440 (Fla. 1 DCA 1974), where we said:

“To rule that a note which includes the obligation of another note (and does not fall within the exemption of § 201.09, supra) is exempt from the tax would fly in the face of the very terms of the statute which taxes renewal notes — § 201.08(1), supra. It was clearly the legislative intent of § 201.08(1), supra, to tax a renewal note for the full amount of the obligation if it included the obligation of another note and was not covered by the exemption of § 201.09, supra. Here the second note obviously enlarged the obligation of the first note, is therefore not exempt under § 201.09, supra, and is therefore taxable for the full amount of its obligation — $3,500,000.
Appellee cites opinions of the Attorney General of Florida in support of its argument that a tax is not due on that portion of the obligation which includes the obligation of the previous note, but these opinions do not deal with situations such as that presented here. They relate to renewal notes which come within the ex: emption of § 201.09, supra — second notes which do not increase the obligation of the original note (or notes) and which are renewed by the second note. In the case sub judice, as heretofore stated, the second note not only encompasses the obligation of the original note but increases it. It does not merely ‘extend or continue the identical contractual obligations’ of the first note, but enlarges it.
Appellee contends that under the ruling of one of the Attorney General’s opinions which it cites, it could have negotiated a loan of $1,650,000 with Alison, could have executed a promissory note therefore and paid the documentary tax on only the $1,650,000. It argues that had it done so and thereafter executed a single note in place of that note and the second note, without changing the terms and conditions of the two notes, it could not be argued that a documentary tax was due on the substituted note. It contends that the procedure adopted by it in the instant case achieved the same result and therefore should be taxed only on the amount of the increased obligation. We make no ruling on the legal effect of the hypothetical transaction posed by appellee as such case is not before us, but even if the result under the hypothetical transaction presented by appellee is as appellee states, such contention is without merit in relation to the case sub judice. We may not concern ourselves with what might have been had appellee handled this transaction in a different way. Appellee evidently had a reason for handling the transaction as it did. The Supreme Court, in response to a similar contention in North American Company v. Green, Fla., 120 So.2d 603, said:
‘We are not privileged to make the taxability of a transaction dependent upon any consideration of some alternative procedure which might not have been taxable.’ ”

§ 201.08(1), Florida Statutes (1975), referred to in the above quotation, states as follows:

“On promissory notes, non-negotiable notes, written obligations to pay money, assignment of salaries, wages, or other compensation, made, executed, delivered, sold, transferred, or assigned in the state, and for each renewal of the same on each one hundred dollars of the indebtedness or obligation evidenced thereby, the tax shall be fifteen cents on each one hundred dollars or fraction thereof. Mortgages which incorporate the certificate of indebtedness, not otherwise shown in separate instruments, are subject to the same tax at the same rate.” (Emphasis supplied.)
I would reverse.


author: MELVIN, Judge.

text:
    Kenneth A. PLANTE, Dempsey J. Barron, Phillip D. Lewis, Jack D. Gordon and Jon C. Thomas, Petitioners, v. The FLORIDA COMMISSION ON ETHICS, Respondent.
    No. HH-431.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1977.

      Tobias Simon, Charles L. Carlton, and Richard C. McFarlain, Tallahassee, for petitioners.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., and Douglas C. Kearney, Asst. Atty. Gen., for respondent.
   MELVIN, Judge.

Petitioners, Senators Kenneth A. Plante, Dempsey J. Barron, Phillip D. Lewis, Jack D. Gordon, and Jon C. Thomas (hereinafter the Senators), seek review of an order of the Florida Commission on Ethics dated October 21, 1977, which purported to find probable cause to establish breach of public trust in that the Senators had violated Article II, § 8(a) and (h) of the Florida Constitution and sought to refer such finding to the President of the Senate for official action.

Complaints were filed with the Florida Commission on Ethics alleging that the Senators had violated Article II, § 8(a) and (h), Florida Constitution by failing “ . . .to file full and public disclosure of financial interests as required by the Florida Constitution”. After investigations of the complaints were conducted by the Commission, a public hearing was held on October 21, 1977, where the Commission voted to take the aforementioned actions.

Article II, § 8(f), Florida Constitution establishes an independent commission with the duty “ . . . to conduct investigations and make public reports on all complaints concerning breach of public trust by public officers or employees not within the jurisdiction of the judicial qualifications commission”. The Florida Commission on Ethics is the statutory commission brought into existence by Chapter 112, Part III, Florida Statutes. Article II, § 8(h), Florida Constitution provides that, until otherwise provided by law, the independent commission referred to in Article II, § 8(f), Florida Constitution shall mean the Florida Commission on Ethics. No legislation has been enacted which would purport to implement the provisions of Article II, § 8, Florida Constitution. •

Petitioners and respondent agree that no provision of Chapter 112, Part III, Florida Statutes is applicable to the issue before this court — namely, the authority of the Commission to do other than conduct an investigation and make a public report.

Article III, § 2, Florida Constitution provides that the Senate shall be the sole judge of the qualifications, elections, and returns of its members. The Senate has the power to punish or expel one of its members, Article III, § 4, Florida Constitution. Under Article III, § 5, Florida Constitution, the Senate is empowered to compel the production of documents relating to any matter under investigation by the Senate or any of its committees. Thus, the Senate has the sole power to determine if a Senator should be seated, unseated or otherwise disciplined.

The separation and independence of the executive, judicial and legislative branches of government is well-established and is one of the basic principles upon which our system of government is founded. One branch of government does not have the authority to dilute or destroy the powers vested in another branch. Just as the executive or judicial branch has no authority to determine the qualifications of a Senator to be seated, the Florida Commission on Ethics has no power to make this determination, or to enter a finding of probable cause.

Article II, § 8, Florida Constitution in no way dilutes the power vested in the Senate to serve as the sole body with authority to pass judgment on the discipline or qualifications of one of its members.

It, therefore, follows that under Article II, § 8, Florida Constitution, generally known as the Sunshine Amendment, the Florida Commission on Ethics has the authority to conduct an investigation of complaints alleging a violation of Article II, § 8, Florida Constitution and to make public its report by distribution to all news media or by filing the same with the Secretary of State as it may choose. The Commission has no authority to find probable cause that a member of the House or Senate has violated the Constitution.

When the provisions of the Constitution, as adopted by the citizenry of Florida, are clear and unambiguous, they are to be read and enforced as written. Rights thereunder are protected by the judiciary, the branch that also serves as a protector of the right of free speech and free press when challenged, without regard to popularity of the issue or lack thereof.

That portion of the order of the Florida Commission on Ethics purporting to find probable cause of a violation by the petitioners of Article II, § 8(a) and (h), Florida Constitution and purporting to direct the filing of such finding as an official document with the President of the Senate transcends the constitutional grant of power to the Commission and as such it is void. The stay order heretofore entered is now adjudged to be permanent.

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


author: HUBBART, Judge.

text:
    Joseph A. (Joey) BUCHER, etc., et al., Appellants, v. DADE COUNTY and Continental Casualty Company, Appellees.
    No. 76-1168.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Feb. 6, 1978.

      Bartel, Levine & Shuford and Paul J. Levine, Miami, for appellants.
    Rentz, McClellan & Haggard and L. Edward McClellan, Jr., Jospeh W. Downs III, Miami, for appellees.
    Before HUBBART, J., and CHARLES CARROLL (Ret.) and LESTER, M. IGNATIUS, Associate Judges.
   HUBBART, Judge.

This is a negligence action involving a beach accident in which summary judgment was entered for the defendant Dade County and its insurer. The plaintiff appeals.

The issue involved in this appeal is whether Dade County has a duty to warn people who use its beaches of the presence of small sandy inclines under the shallow water near the beach, which inclines are constantly filling and changing with the tides. We hold that the county has no such duty and affirm.

On the morning of July 15, 1974,' the plaintiff who was a fifteen year old boy went on an outing with members of his high school marching band to Haulover Beach in Dade County, Florida. The beach was owned and operated by Dade County. The plaintiff was in and out of the water on the beach for about 2V2 hours all morning. At approximately 11:40 a.m. he returned to the water where he had been playing part of the morning to wash off. As he entered the water, his foot slipped into a small sandy incline causing him to fall head first into the water. He struck his head and fractured his neck resulting in a partial permanent paralysis from the neck down.

The depth of the incline into which the plaintiff slipped in shallow water just off the beach was estimated to be either four to five inches or one foot. The angle of the incline was 45° and was the product of the changing tides which causes various configurations in the sand under the water near the sandy beach. These configurations vary and change with the tides resulting in inclines from two inches to one or two feet in depth existing along the beach at all times.

The plaintiff filed an amended complaint against inter alia Dade County and its insurer Continental Casualty Co. alleging that the county was negligent in failing to warn the plaintiff of the hidden incline in the water by posting proper signs warning of such alleged dangerous condition. Dade County did not defend this case on the theory of sovereign immunity, but denied any negligence in the cause. After extensive discovery which revealed the above facts surrounding the accident, Dade County and its insurer moved for summary judgment. The trial court granted the motion and this appeal follows.

The law is clear that the proprietor of a bathing beach, including a governmental entity not otherwise immune from liability, has a duty to exercise due care for the safety of those invited there and to warn such people of hidden dangerous conditions of which the proprietor has knowledge or of which, through the exercise of reasonable care, he should have knowledge. Such a proprietor, however, is not the insurer of the safety of the beach and must only exercise a duty of reasonable care to those people using the beach. Payne v. City of Clearwater, 155 Fla. 9, 19 So.2d 406 (1946); Ide v. City of St. Cloud, 150 Fla. 806, 8 So.2d 924 (1942).

In the instant case, it is clear that the incline into which the plaintiff slipped is a natural condition of the shoreline which is constantly changing due to the tides. The plaintiff had in fact been playing part of the morning without incident in the area in which he eventually fell. The water was very shallow in that area and the sloping incline was no more than one foot in depth. Under these conditions, we cannot say that this condition was so dangerous that the county should have warned swimmers thereof. Such a danger should be taken as obvious to all those who use the beach. Indeed, this is the first such accident which has ever been reported on Haulover Beach and it could not in any way have been foreseen. See Wamser v. City of St. Petersburg, 339 So.2d 244 (Fla.2d DCA 1976); Jones v. Hinkson, 313 S.W.2d 415 (Ky.Ct.App.1958).

Affirmed.


author: HENDRY, Chief Judge.

text:
    Edward H. WARNER et al., Appellants, v. Robert F. CALDWELL et al., Appellees.
    No. 76-1185.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.

      Frates, Floyd, Pearson, Stewart, Richman & Greer and William S. Frates and James D. Little, Brinkley & McNemey, Ft. Laud-erdale, for appellants.
    Smathers & Thompson and Earl D. Wal-din, Jr., Joseph P. Averill, Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, Miami, for appellees.
    Before HENDRY, C. J., and NATHAN and KEHOE, JJ.
   HENDRY, Chief Judge.

This appeal is taken by appellants, plaintiffs below, from an adverse judgment entered pursuant to a jury verdict rendered in favor of appellees, defendants below. The judgment resulted in the exoneration of appellees from liability as guarantors on two notes held by appellants, as trustees of Wachovia Realty Investments.

Taken in the light most favorable to the successful appellees, the facts are as follows: Caldwell Plaza Ltd., sought financing for the construction of an office building. Through the services of a mortgage broker, they received a commitment for the needed construction funds from Wachovia Mortgage Company, the advisor to Wachovia Realty Investments. The loan was to be made to a corporate entity, so Caldwell Plaza Corporation was organized and shares of stock sold to both the former general and limited partners of Caldwell Plaza Ltd., as well as other interested investors.

Pursuant to the commitment letter, the lender required a satisfactory “fixed-cost” construction contract with an acceptable general contractor, secured by a “dual-obli-gee” bond. (This requirement was later formalized in the construction loan agreement executed by appellants and Caldwell Plaza Corporation and by reference, made a part of the guaranty agreement). The commitment letter further provided that the construction loan was to be funded pursuant to the conditions and requirements of a permanent loan commitment from New York Life Insurance Company of $2,670,-000.00. In addition, Wachovia required the personal guaranty of the various stockholders, and their respective wives, prior to funding the loan.

[For purposes of this opinion, it is most important to segregate the various guarantors into two distinct groups. Group I consists of Messrs. Gamble, Gilroy and Win-ningham, the architects of the project. Group II consists of Robert E. and Carolyn H. Caldwell, Jack R. and Aurie Brock, Franklyn S. and Thelma S. Collins, Dorothy T. Groom and Joseph J. Groom, Jr., as Executors of the Estate of Joseph J. Groom, Stanley and Marian Sneider, William J. and Lila K. Washata.]

Pursuant to the direction of appellant, a guaranty agreement was prepared and signed by both the members of Group I and Group II. That agreement, in pertinent part, is as follows:

“GUARANTY AGREEMENT “WHEREAS, the undersigned have requested WACHOVIA REALTY INVESTMENTS, an unincorporated Business Trust organized under the laws of the State of South Carolina, pursuant to a Declaration of Trust dated December 10, 1969, as amended, on file in the office of the Secretary of State of South Carolina (hereinafter called W.R.I.) to extend credit to CALDWELL PLAZA CORPORATION, a Florida corporation (hereinafter called Borrower) for a real estate mortgage loan in a total amount of $3,300,000.00 to be evidenced by two notes, one in the principal sum of $3,300,-000.00 and a ‘gap financing’ note in the principal sum of $630,000.00, secured by two real estate Mortgages and a Building Loan Agreement and W.R.I. has extended such credit and/or may in the future extend credit by reason of such request and in reliance upon this guaranty;
“NOW, THEREFORE, in consideration of such credit extended and/or to be extended by the W.R.I. to the Borrower, the undersigned jointly and severally hereby unconditionally guarantee to W.R.I. and its successors, endorsees and assigns the punctual payment when due, with such interest as may accrue thereon either before or after any maturity thereof, of the aforesaid two notes in the face amount of $3,300,000.00 and $630,000.00 given by the Borrower to W.R.I. of even date, and further unconditionally guarantee payment of other monies due or which may become due thereon, and the due and punctual performance and observance by the Borrower of all the other terms, covenants and conditions of the aforesaid two notes and the two Mortgages, the Building Loan Agreement and any other instruments securing same, whether according to the present terms thereof, at any earlier or accelerated date or dates as provided therein, or pursuant to any extension of time or to any change or changes in the terms, covenants and conditions thereof now or at any time hereafter made or granted.
“The undersigned consent that the whole or any part of the security now or hereafter held for the aforesaid two notes of the Borrower may be exchanged, compromised, or surrendered from time to time; that the time or place of payment of the aforesaid indebtedness of the Borrower or of any securities therefor may be changed or extended, in whole or in part, to a time certain or otherwise, and may be renewed or accelerated, in whole or in part; that the Borrower may be granted indulgences generally; that any of the provisions of any note or other instrument evidencing any of the aforesaid indebtedness of the Borrower or any security therefor may be modified or waived; that any party liable for the payment thereof (including but not being limited to any co-guarantor) may be granted indulgences or released; that neither the death, bankruptcy nor disability of any one or more of the guarantors shall affect the continuing obligation of any other guarantor, and that no claim need be asserted against the personal representative, guardian, trustee in bankruptcy or receiver of any deceased, incompetent, bankrupt or insolvent guarantor; and that any deposit balance to the credit of the Borrower or any other party liable for the payment of the aforesaid indebtedness of the Borrower or liable upon any security therefor may be released, in whole or in part, at, before and/or after the stated, extended or accelerated maturity of the aforesaid indebtedness of the Borrower, all without notice to or further assent by the undersigned, who shall remain bound thereon, notwithstanding any such exchange, compromise, surrender,, extension, renewal, acceleration, modification, indulgence or release.”

The wives of the guarantors of Group I, however, did not sign the agreement, in contravention of the commitment letter.

Appellants actually extended credit to Caldwell Plaza Corporation on March 28, 1972. In the interval between the signing of the above guaranty agreement and the actual extension of credit, there were several material occurrences. First, after the guaranty agreement was forwarded to appellants on March 7, 1972, there was concern because the wives of the Group I guarantors had not signed the agreement. Appellants thereupon sent a second agreement to Group I signatories requesting them to execute a “non-transfer of assets” agreement. This agreement was submitted to the attorney of Group I, who thereupon prepared a modified offer of guaranty, which was signed by the three guarantors and forwarded to appellants’ house counsel by letter, dated March 20, 1972. This agreement is set forth as follows:

“AGREEMENT
“THIS AGREEMENT, made and entered this 17th day of March, 1972, by and between CLINTON GAMBLE, WILLIAM A. GILROY and JOHN WIN-NINGHAM, hereinafter collectively referred to as Guarantors, parties of the first part, and WACHOVIA REALTY INVESTMENTS, an unincorporated Business Trust organized under the laws of the State of South Carolina, pursuant to a Declaration of Trust dated December 10,1969, as amended, on file in the office of the Secretary of the State of South Carolina, hereinafter referred to as Lender, party of the second part:
“WITNESSETH:
“WHEREAS Lender has agreed to make a loan to CALDWELL PLAZA CORPORATION, a Florida corporation in the total sum of THREE MILLION THREE HUNDRED THOUSAND DOLLARS ($3,300,000.00) to be evidenced by two notes, one in the principle sum of $3,300,000.00 and a “gap financing” note in the principal sum of $630,000.00 secured by two real estate mortgages and a building loan agreement pursuant to its loan commitments to CALDWELL PLAZA CORPORATION dated January 17, 1972 and January 19, 1972; and
“WHEREAS Guarantors together with certain other parties, jointly and severally have agreed to guarantee the payment of said loan by a guarantee agreement; and
“WHEREAS Guarantors are desirous of limiting the term of their liability under said note obligations and under said guaranty agreement to that period of time during construction and up until the time that the New York Life Insurance Company exercises its mortgage loan commitment and acquires said $3,300,-000.00 mortgage from WACHOVIA REALTY INVESTMENTS: and
“WHEREAS WACHOVIA REALTY INVESTMENTS is agreeable to the term liability limitation of Guarantors providing that Guarantors will agree that they will not sell, trade, convey or transfer any of their personal assets, directly or indirectly, to their spouses or any of their relatives of the first, second or third degree without first obtaining the consent of the Lender;
“NOW THEREFORE, in consideration of the mutual promises herein contained on each party’s part to be kept performed and in consideration of the sum of One Dollar cash in hand paid by each party to the other, the receipt and sufficiency of which are hereby acknowledged, the parties hereto promise and agree with the other as follows:
“1. In the event of a conflict between the terms and conditions of this agreement and any other agreement heretofore entered into between the parties hereto, including by way of illustration and not in limitation, that instrument entitled ‘Guarantee Agreement’ heretofore executed by Guarantors in favor of Lender, this agreement entered this day shall govern and control the rights and obligations of the parties with respect to each other concerning the things herein set forth.
“2. Lender agrees that the period of time within which the Guarantors shall be liable under the ‘Guarantee Agreement’ heretofore executed by Guarantors in favor of Lender shall be that period of time beginning with the disbursement by Lender of the first monies under the notes which Guarantors have guaranteed and ending on the date that the New York Life Insurance Company or any other such lender shall acquire the permanent mortgage loan on the subject property. Guarantors agree that in consideration of the limited period of time they are liable under the Guaranty Agreement, that they will not during such limited period sell, trade, convey or transfer any of their personal assets, directly or indirectly, to their spouse or to any other relative of the first, second or third degree without first obtaining the consent of the Lender, to the end that their personal assets will be available to satisfy their proportionate part of the aforementioned loan made by Lender to CALDWELL PLAZA CORPORATION and as guaranteed by them.
“IN WITNESS WHEREOF the parties have hereunto set their hands and seals the day and the year first above written.”

As the building of the project progressed, it became increasingly evident that the allotted funds would be insufficient to complete the work. In May of 1972, the fixed-cost contract executed by Caldwell Plaza Corporation and the bonded contractor, Bartlett Construction Company, was terminated and appellants agreed to an arrangement wherein Caldwell was permitted to form a corporation and complete the project on a “cost-plus” basis, without bond.

The liability on the existing Bartlett bond was reduced from $2,850,000.00 to $2,263,-000.00. The authorization to terminate the “fixed-cost” contract and reduce the bond was made by appellants without the consent of the various guarantors.

In October of 1973, New York Life Insurance Company acquired the permanent mortgage loan. Subsequently, in February of 1974, New York Life declared a default in the permanent loan by Caldwell Plaza Corporation and foreclosed its first mortgage. The foreclosure effectively “wiped out” the second mortgage security interest of appellants, i. e., the $630,000.00 “gap” financing note referred to in the guaranty agreement. In June of 1974, appellants demanded payment on this note from the guarantors. When payment was refused, appellants filed suit seeking to enforce the guaranty agreement.

At trial, appellees basically relied upon two lines of defense. Group I claimed that they were relieved of any liability on the first guaranty by virtue of appellants “accepting” their second “offer” of guaranty. As set forth above, by the terms of the second guaranty, the liability of Messrs. Gamble, Gilroy and Winningham ceased when New York Life Insurance Company acquired the permanent mortgage loan.

The guarantors comprising Group II, not having signed the second “offer” of guaranty, argued that they were relieved from liability on the guaranty by virtue of the fact that appellants had reduced the security bond without the consent of appellees and had terminated the “fixed-cost” construction contract, replacing it with a “cost-plus” contract, without bond, all contrary to the terms of the building loan agreement which was expressly made a part of the guaranty agreement.

After a jury trial which lasted five days, verdicts were returned in favor of the various guarantors. Final judgment was entered pursuant to the verdict, and this appeal follows:

After carefully reviewing the record, briefs and arguments of counsel, it is our opinion that there was competent substantial evidence for the jury to find for the various guarantors based upon their respective defenses. As such, and for the following reasons, the final judgment is hereby affirmed.

Firstly, it is important to note that the rules applicable to contracts, generally, likewise apply to contracts of guaranty and therefore, in order to have a binding contract, it is necessary, among other things, to have the guarantor’s offer of guaranty accepted by the creditor. See 38 Am.Jur.2d Guaranty, § 1 (1968). Secondly, a careful review of the contract of guaranty reveals that the bargained for act was the actual lending of money by appellant (creditor) to the primary debtor (Caldwell Plaza Corporation). As such, this was a unilateral contract whereby the “offer” of guaranty was not accepted until the time of the actual funding of the loan. 7 Fla.Jur. Contracts § 3 (1956). Sub judice, there was competent substantial evidence for the jury to find that the second “offer” of guaranty, limiting the liability of the Group I guarantors, was communicated to appellants prior to the actual bargained for act and was, in fact, the “offer” accepted by appellants. Thus, Messrs. Gamble, Gilroy and Winning-ham were relieved of liability on the guaranty when New York Life funded its permanent loan commitment.

As for the Group II guarantors, there was competent substantial evidence for the jury to award a verdict in their favor based upon appellants’ impairment of the security, i. e., reduction of the bond, and change in the terms of the construction contract without the assent of the guarantors. Notwithstanding language in the guaranty agreement to the effect that the contract of guaranty would be “unconditional”, beyond the duties imposed in the contract of guaranty, the law imposes on the creditor an obligation not to deal with the debtor, or any security for the debt, in such a manner as to harm the interest of the guarantors. Dorsey v. Maryland National Bank, 334 So.2d 273 (Fla. 3d DCA 1976). With the above in mind, we cannot say as a matter of law, that a jury could not relieve the guarantors of their responsibility on the guaranty by virtue of the aforementioned acts of appellants.

Notwithstanding the facts as interpreted by the jury, appellants have raised a number of points on appeal. As to those points which we believe deserve comment, a discussion follows.

Appellants claim that where, as here, a guaranty agreement calls for both the absolute and unconditional guarantee of payment, that guarantee cannot be limited or qualified by reference to evidence outside of the agreement, itself. Sub judice, the guaranty, itself, specifically made reference to the building loan agreement and therefore, it was not error for the trial judge to allow the Group I guarantors to refer to a breach of said agreement as a defense to their liability on the guaranty. Schaeffer v. Gilmer, 353 So.2d 847 (Fla. 1st DCA 1977), opinion filed August 4, 1977.

Appellants next contend that the trial court erred in its various instructions to the jury. After carefully reviewing the instructions as a whole, however, we cannot say that the jury was misled as to the effect of the law to be applied to the actual situation before it and accordingly, find that no error has been committed. Mohasco Industries, Inc. v. Maxwell Company, Inc., 425 F.2d 436 (5th Cir. 1970); Keyser v. Brunette, 188 So.2d 840 (Fla. 2d DCA 1966); Taran v. Sea Coast Appliance Distributors, Inc., 164 So.2d 274 (Fla. 3d DCA 1964); Royal Kitchen Cabinet Corporation v. Palcic, 111 So.2d 42 (Fla. 3d DCA 1959).

Finally, appellants claim error on the part of the trial judge in both admitting certain exhibits into evidence during the course of the trial and taxing certain costs against appellants after the trial’s conclusion. Both the imposition of costs after judgment and the admission and/or exclusion of evidence during the course of the trial are matters largely within the discretion of the trial judge and will not be disturbed on appeal without a clear showing of abuse of that discretion. General Capital Corporation v. Tel. Service Co., 239 So.2d 134 (Fla. 2d DCA 1970); 2 Fla.Jur. Appeals, § 337 (1963). Appellants have not demonstrated that the trial- court clearly abused its discretion in either of the above areas.

Accordingly, the judgment appealed from is affirmed.

Affirmed.

NATHAN-, J., dissents.


text:
    Robert L. NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-2316.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1977.
    Rehearing Denied Feb. 14, 1978.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Massey v. State, 348 So.2d 1244 (Fla. 1st DCA 1977).

CROSS, LETTS and MOORE, JJ., concur.


text:
    Samuel PEARSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-908, 77-909 & 77-845 consolidated.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.
    Rehearing Denied Feb. 14, 1978.

      Jack 0. Johnson, Public Defender, Bar-tow, and Stephen 0. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Pursuant to plea negotiations appellant was sentenced to life probation for robbery (case number 76-6325, appeal number 77-845), fifteen years in prison for another count of robbery (case number 76-7080, appeal number 77-908), and five years in prison for giving false information to obtain unemployment compensation (circuit court number 76-5178, appeal number 77-909). All three sentences are to be served concurrently.

In this appeal appellant argues that the trial court erred by simultaneously placing him on probation and sentencing him to prison. However, we interpret the sentences so that appellant’s life probation does not commence until he is released from prison on the other two charges.

As so interpreted, the judgments appealed from are affirmed, but these cases are remanded for resentencing of appellant. The sentences in circuit court case numbers 76-7080 (appeal number 77-908) and 76-5178.(appeal number 77-909) do not specifically set forth the period of credit time to be allowed as required by Section 921.-161(1), Florida Statutes (1975); Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Moreover, the phrase “at hard labor” in the sentences is improper. Brooks v. State, supra. The appellant does not have to be present at resentencing.

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


author: DAUKSCH, Judge.

text:
    Leonard BENEBY, Appellant, v. STATE of Florida, Appellee.
    No. 76-2220.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1978.
    Rehearing Denied Feb. 14, 1978.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellant was convicted of possession of heroin after a jury trial in which it was revealed he and another were preparing to shoot-up when the police appeared. At trial a policeman was asked by the prosecutor the purpose for his having been in the area at the time of the arrest. He answered, “Well, there had been several narcotic arrests made in that area; and the bar at 22nd and Sims has quite a reputation for narcotics in that area. That was the reason we went up there in that alley.” Appellant objected as he did when the prosecutor on opening statement said the area in which Appellant was arrested was “an area that is known to be inhabited by drug users.” Defense counsel on both occasions moved for a mistrial. The Motions were denied and we must decide whether the place the Appellant was arrested was relevant or material to the issue of the guilt of the accused and; if not, was the error in admitting the testimony and allowing the prosecutorial statements so harmful as to warrant a new trial.

In Young v. State, 141 Fla. 529, 195 So. 569 (1939), our Supreme Court alludes to the duty of the prosecutor in trying a criminal case. In that case, as in probably hundreds of others, we are reminded the prosecutor has a serious responsibility “not only to faithfully represent the state but to see that justice is done. His duty is twofold, and it cannot be said that he represents a great State only and should remain oblivious to the legal rights of the defendant.” Young then refers to Roach v. State, 108 Fla. 222, 146 So. 240 (1933). That bears reading, as well. We add that our society depends upon the protection of the individual by the government in order to preserve the very government in which all of us are the individuals. We add further there is absolutely no evidence the prosecutor here wilfully tried to mislead the jury.

The Appellant urges that it is irrelevant where he was when he possessed the heroin and immaterial to the issue of his guilt. We agree. Young, supra. He also contends he did not put his reputation or character in issue therefore the State had no business bringing it up. We agree. Roti v. State, 334 So.2d 146 (Fla.2d DCA 1976).

The State counters with the quite incredible argument that the Williams Rule applies. Williams v. State, 110 So.2d 654 (Fla.1959). We have reread Williams to confirm that case has to do with past similar crimes committed by the Defendant which were introduced to show identity, intent or an established plan, scheme or design. If similar fact evidence is to be deemed admissible it must be relevant to a fact in issue. The facts in issue in this case are the possession of heroin and the identity of the drug as heroin. The fact that the policeman knew the scene as being within a reputed narcotics area doesn’t tend to prove anything in issue and could only serve to unduly prejudice the jury. This case surely does not fall within the Williams Rule and we suggest the only reason the evidence was submitted by the State was to show bad character or propensity — just what Williams forbids.

The evidence of the guilt of the Defendant is clear but the entire transcript is red-lighted by the improprieties mentioned. Therefore we must add our emphasis by reversing for a new trial.

REVERSED and REMANDED.

CROSS and ANSTEAD, JJ., concur.

      . All that is necessary is venue, Broward County, unless an alibi or statement of particulars is involved and then only location — not the characterization of the location.