author: NATHAN, Judge.

text:
    Rosalie Ann GOLDMAN, Appellant, v. Milton George GOLDMAN, Appellee.
    No. 77-1434.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.
    Joseph Pardo, Miami, for appellant.
    Sinclair, Louis, Siegel & Heath and Paul A. Louis, Miami, for appellee.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

This is an interlocutory appeal by the wife in a dissolution of marriage action, from an order granting the husband’s petition for modification of final judgment, and requiring the wife to pay her own costs and attorneys fees; an order denying the wife’s motion to strike husband’s petition for modification; an order denying the wife’s motion to invoke the “clean hands” doctrine; an order granting the husband’s motion to strike the wife’s response to the petition for modification; and an order denying the wife’s petition for rehearing on the foregoing orders. We find no errors in these rulings of the trial court, with the exception of the order granting the husband’s petition for modification of final judgment.

Final judgment of dissolution of the marriage of Rosalie Ann Goldman and Milton George Goldman, was filed on June 28, 1974. The pertinent provisions of that judgment are,

“5. The husband shall pay to the wife as support for [the minor child] the sum of $300.00 per month commencing on July 1, 1974 until said child reaches her majority
6. . The husband shall pay as additional child support the tuition of the [private school] fees, and the cost of books, directly to this school, as long as the child shall attend that school.
9. The husband shall pay to the wife pursuant to F.S.A. 61.08 the sum of $350.00 per month as permanent alimony until the wife shall die or remarry. .
11. The husband shall also pay to the wife as partial lump sum alimony the sum of $35,000.00 which partial lump sum alimony shall be paid at the rate of $350.00 per month commencing on July 1, 1974 for one hundred (100) successive months, terminating November 1, 1982. The purpose of the award of this partial lump sum alimony is to provide to the wife an additional source of support from which she may rent an apartment for herself and the parties’ minor child herein.”

The record reflects that extensive testimony was heard on the husband’s petition for modification, following which the trial judge entered an order in which he found that there was a material and substantial change in the husband’s financial ability since entry of the final judgment. The court ordered that the final judgment be amended by reducing child support payments from $300.00 per month to $200.00 per month, effective as of October, 1976; deleting the requirement that the husband pay the minor child’s private school tuition; and abating the monthly payments of $350.00 as partial lump sum alimony to the wife for the one year period from October, 1976, through September, 1977.

We find that the trial court erred in ordering that the partial lump sum alimony payments of $350.00 per month be abated for one year for the reason that lump sum alimony creates a vested interest and cannot be modified. Compare Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976), and cases cited therein. The trial court found that the change in the financial position of the husband required monetary relief for the husband in addition to the reduction in child support payments and the elimination of the tuition obligation. However, any such modification should have been addressed to a reduction in the payment of permanent alimony, rather than an abatement for one year of the monthly payments of partial lump sum alimony.

Therefore, these proceedings are remanded to the trial court for further hearing on the petition for modification; for reinstatement and enforcement of the monthly payments of partial lump sum alimony, relating back to October, 1976; and for consideration of a reduction in the permanent alimony payments.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Hannah REYER, Appellee.
    No. 77-2040.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and Todd Cowart, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Brumer, Moss, Cohen & Rodgers, Miami, for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Appellant, defendant below, brings this appeal from an adverse order granting ap-pellee’s, plaintiff below, motion for a judgment on her complaint for a declaratory decree and requiring appellant to submit to arbitration. We affirm.

Appellant issued an automobile owners policy of insurance to appellee. This policy was in effect at all times material to this cause. The policy of insurance carried a supplementary uninsured-underinsured motorist endorsement with coverage limits of $300,000. On September 11, 1976, appellee was a passenger in an automobile involved in an accident, and, as a result of the accident, she sustained bodily injuries. The coverage limit of the driver’s automobile liability insurance policy at the time of the accident was $100,000. Appellee alleged that her injuries were so serious and permanent as to warrant the filing of an underin-sured motorist claim under her policy with appellant. Thereafter, on February 14, 1977, appellee sent a letter to appellant requesting arbitration under her policy. Upon Appellant’s refusal to arbitrate, ap-pellee filed her complaint for a declaratory decree. Subsequently, she moved for a judgment on the pleadings which the trial court, in the order appealed, granted. In this order, the trial court also ordered appellant to submit to arbitration.

At the hearing on appellee’s motion, the parties made the following primary contentions: Appellee contended that she was entitled to bring an underinsured motorist claim even though the driver’s insurance company had not tendered his policy limits. Appellant contended that the policy endorsement expressly provided that appellee was not entitled to make a claim and that they were under no obligation to make a payment until after the limits of liability under all bodily injury policies applicable at the time of the accident had been exhausted.

These contentions also give rise to the basic question raised by this appeal, i. e., whether, under Florida law for the purposes of uninsured-underinsured motorist coverage, an insurer and insured may enter into a bona fide contract (policy) provision which requires that the insured must pursue the uninsured-underinsured motorist to a judgment or settlement prior to proceeding against its own insurer. In our opinion, the proper answer to this question is no.

For the same reasons we set forth in Arrieta v. Volkswagen Insurance Co., 343 So.2d 918 (Fla. 3d DCA 1977), we believe that public policy, as indicated by the clear expression of legislative intent in Section 627.727, Florida Statutes (1975), prohibits an insurer from legally conditioning its obligation to afford uninsured-underinsured motorist coverage upon its insured’s first pursuing the third party tort-feasor to a settlement or judgment. Accord, Government Employees Insurance Co. v. Friedman, 344 So.2d 288 (Fla. 3d DCA 1977); and c.f. Great American Insurance Co. v. Pappas, 345 So.2d 823 (Fla. 4th DCA 1977) (uninsured motorist coverage includes concept of underinsured motorist coverage). Accordingly, the order appealed therein is affirmed.

Affirmed.


text:
    Samuel WEISS, etc., et al., Appellant, v. CITY OF MIAMI BEACH, Appellee.
    No. 77-2103.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.
    Rehearing Denied Oct. 6, 1978.
    Storace, Hall & Hauser and William S. Bischoff, Miami, for appellant.
    Joseph A. Wanick, City Atty., Lionel Bar-net, Miami Beach, for appellee.
    Before PEARSON and KEHOE, JJ., and PIERCE, WILLIAM C. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See the principles of law enunciated in City of Miami Beach v. Royal Castle System, Inc., 126 So.2d 595 (Fla.3d DCA 1961).


text:
    ART CONSTRUCTION COMPANY and Cosmopolitan Mutual Insurance Company, Appellants, v. Jack JACKSON, Appellee.
    No. 77-2213.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.
    Pyszka, Kessler, Adams & Solomon, Miami, for appellants.
    Errol S. Cornell, Coral Gables, for appel-lee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

The employer and its compensation insurer appeal the allowance of an attorney’s fee upon employee’s petition pursuant to Section 440.24, Florida Statutes (1977), to enforce a workman’s compensation award. The award was paid after the petition was filed and before the issuance of the rule nisi. The issue before the court was whether the tardy payment was caused by the insurance company or the claimant’s failure to submit proper bills. The trial court determined this issue adversely to the company and we find no basis for this court to substitute its judgment for that of the trial court. Cf. Lillard v. City of Miami, 220 So.2d 413 (Fla. 3d DCA 1969).

Affirmed.


author: PEARSON, Judge.

text:
    CALYPSO LOUNGE, INC., Appellant, v. SPITZER MANAGEMENT, INC., Appellee.
    No. 77-2406.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.
    Rehearing Denied Sept. 20, 1978.
    Milton E. Grusmark, Miami, for appellant.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Robert T. Wright, Jr., Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

The controlling question on this appeal is whether a landlord may, after the destruction of a building by fire, declare a forfeiture of the lease for default in the payment of rent due prior to the fire where the lease carried the following provision for rebuilding in the case of fire:

“In the event the building, in which the demised premises are located shall be rendered untenantable by fire . . . , the lease shall not be terminated, and the Lessors shall be obligated to rebuild. .. ."

The trial judge held that the covenant to pay rent took precedence and the lease was terminated. The appellant raises two issues on appeal, arguing that (1) the covenant to rebuild should have been enforced after a tender of the defaulted rent payments, and (2) the record conclusively established a waiver of the default in payment of rent. We hold that neither point presents error on this record, and we affirm.

The trial judge’s findings of fact are as follows:

“1. On January 11, 1976 a fire destroyed The Calypso Lounge, which lounge constituted the premises subject to the lease at issue in this case (‘the Lease’).
“2. When the fire occurred, Plaintiff, the lessee, was three months in arrears in the rental payments required by the Lease to be made to Defendant, the lessor, in breach of the Lease.
“3. Plaintiff was unable to pay its rent because at the time of the fire it was suffering losses in excess of $1,500 per month, had a capital deficit in excess of $40,000., and had never shown a profit during its six years of corporate existence.
“4. By February 13, 1976, Plaintiff had still not made the required payments under the Lease.
“5. Defendant determined to terminate the Lease for that reason, and thereupon authorized its counsel to advise Plaintiff that the Lease was terminated.
“6. Defendant’s counsel sent a letter dated February 13, 1976 to Plaintiff advising that the Lease was terminated for failure to pay the required rent.
“7. Plaintiff admitted receiving that February 13, 1976 letter.
“8. On February 14, 1976, Defendant received an Order from the Metropolitan Dade County Building and Zoning Department which required it to demolish those portions of the lounge still standing within 30 days of receipt of that Order.
“9. Pursuant to that Order, Defendant caused the remainder of the lounge to be demolished.”

The appellant tenant (the plaintiff) sought specific performance of the provision to rebuild and, alternatively, damages for the failure to rebuild. The trial court found that it would be inequitable to grant specific performance. This holding is in accordance with established law. See Schuetz v. Niziolek, 62 So.2d 704 (Fla.1953); and cf. Brownlee v. Sussman, 238 So.2d 317, 319 (Fla. 3d DCA 1970). The trial judge correctly held that the covenant to rebuild did not destroy the landlord’s right to forfeit the lease upon the tenant’s previous default in the payment of rent.

The record does not support plaintiff’s claim of a waiver of default for the nonpayment of rent.

Affirmed.

      . The trial judge held:
      “2. The Lease, when read and interpreted as a whole, does not forbid Defendant from terminating the Lease for any reason in the event of a fire, but merely forbids Defendant from terminating the Lease solely because of such a fire.”


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    Kenneth H. GROSS and James M. Ruff, Appellants, v. STATE of Florida, Appellee.
    No. 76-2286.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1978.
    Rehearing Denied Sept. 27, 1978.

      Melvyn Kessler, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   SCHWARTZ, ALAN R., Associate Judge.

The appellants were the pilot and co-pilot of a plane which, as a search initially inspired by the odor of marijuana emitting from it revealed, was carrying a very large quantity of cannabis when it surreptitiously landed and was detained at the Martin County Airport. They appeal their convictions, after a jury trial, for possession of more than five grams of cannabis. We affirm.

We hold that the evidence against both defendants was more than sufficient to support the charge of which they were convicted, see Davis v. State, 350 So.2d 834 (Fla. 2d DCA 1977); Shannon v. State, 320 So.2d 855, 856 (Fla. 1st DCA 1975), rev’d on other grounds, 335 So.2d 5 (Fla.1976); and that the warrantless search of the highly movable airplane was, under all the circumstances, entirely reasonable. Miranda v. State, 354 So.2d 411, 413-414 (Fla. 3d DCA 1978); State v. Toffolio, 349 So.2d 174 (Fla. 1st DCA 1977); Davis v. State, supra; Dixon v. State, 343 So.2d 1345 (Fla. 2nd DCA 1977); U. S. v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

The defendants’ final point concerns the fact that the prosecutor elicited, on direct examination of a customs agent who interviewed the defendants some thirty minutes after their detention, that both had refused to respond to his questions concerning their identity and activities. While this inquiry was indeed an impermissible comment on the defendants’ tacit invocation of their Fifth Amendment right to silence, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Bennett v. State, 316 So.2d 41 (Fla.1975), we must nonetheless reject the appellants’ contention on this issue on the authority of the Supreme Court’s recent and decisive opinion in Clark v. State (Fla.1978). The record plainly shows that the objection was waived below by virtue of the defendants’ failure, as Clark requires, to move for a mistrial because of the incident or even to secure a ruling from the Court on the simple objection which apparently was made.

Affirmed.

DOWNEY, C. J., and ANSTEAD, J., concur.


text:
    Aldo DiSORBO, as President of DiSorbo International, Inc., a Florida Corporation, Appellant, v. Mario DiSORBO, Appellee.
    No. 77-101.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1978.
    Joseph L. Daye, Fort Lauderdale, for appellant.
    Joseph M. Balocco of Sobo • & Wellens, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from a final judgment finding that appellee had a twenty (20) per cent stock interest in a certain Florida corporation and ordering the appellant to produce certain books and records of the corporation for inspection by appellee.

We have examined appellant’s three points and find two of them to be without merit. As to the third point, appellee has agreed that it is meritorious and, therefore, we reverse the final judgment as to point three and remand with directions to the trial court to enter an amended final judgment to provide for the appointment of an impartial and independent accountant to examine the aforesaid corporate books and records and to determine the value of ap-pellee’s stock interest in the corporation and report his findings to the trial court.

Affirmed in part, and reversed in part, and remanded with directions.

CROSS and BERANEK, JJ., and DURANT, N. JOSEPH, Associate Judge, concur.

ALDERMAN, C. J., participated only on oral argument.


author: ANSTEAD, Judge.

text:
    Johnny Lee GRUBBS, Appellant, v. STATE of Florida, Appellee.
    No. 77-853.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1978.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., and Kenneth G. Spillias, Legal Intern, West Palm Beach, for appellee.
   ANSTEAD, Judge.

The appellant is challenging a condition of his probation which requires that he consent to a search of himself or any vehicle or premises under his control, at any time, by any law enforcement officer. We have previously held that such a condition is lawful. Isaacs v. State, 351 So.2d 359 (Fla. 4th DCA 1977); Pace v. State, 350 So.2d 1075 (Fla. 4th DCA 1977). However, we feel this question is of great public interest and accordingly the following question is hereby certified to the Supreme Court:

Is a condition of probation requiring a probationer to consent to a search at any time, by any law enforcement officer, violative of the probationer’s rights under the Fourth Amendment of the United States’ Constitution or Article I, Section 12 of the Florida Constitution?

The judgment and order of probation are affirmed.

DOWNEY, C. J., and DAUKSCH, J., concur.


author: DOWNEY, Chief Judge.

text:
    PROFESSIONAL MEDICAL SPECIALTIES, INC., and Beverly M. Jones, personal representative of the Estate of Quentin R. Jones, Deceased, Petitioners, v. Aileen RENFROE, personal representative of the Estate of Tommie E. Renfroe, Deceased, et al., Respondents. The GARRETT CORPORATION, Air Research Manufacturing Division, Petitioner, v. Aileen RENFROE, personal representative of the Estate of Tommie E. Renfroe, Deceased, et al., Respondents.
    Nos. 78-659, 78-764.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1978.
    J. Thomas Cardwell of Akerman, Senter-fitt & Eidson, Orlando, for petitioner — The Garrett Corp.
    John C. Briggs of Robertson, Williams, Duane & Lewis, Orlando, for petitioners— Professional Medical Specialties, Inc., and Beverly M. Jones.
    George E. Adams of Adams & Hill, Orlando, Donald L. Salem of Luce, Forward, Hamilton & Scripps, San Diego, Cal., and Arthur Sherman of Sherman & Nordstrom, West Los Angeles, Cal., for respondents.
   DOWNEY, Chief Judge.

By petitions for writs of certiorari we have for review orders of the trial court denying motions to compel answers in a discovery deposition.

The action involved is one for wrongful death. Suit was commenced one day before the Statute of Limitations expired, but process was not served until six months later. Petitioners raised the Statute of Limitations as a defense and by way of discovery sought to garner the facts surrounding the delay in service of process so that they could assert that lack of due diligence in service of process nullified the filing of the suit before the Statute of Limitations had actually run. In order to prove those facts petitioners took the deposition of a lawyer for respondents. He refused to answer the questions propounded regarding the filing of this action and the Court refused to require him to do so. It is this latter judicial act we are asked to review.

There are numerous Federal cases holding due diligence in service of process is required in order to enable one to rely upon the act of filing suit to toll the running of the Statute of Limitations. The Second District Court of Appeal has held recently in Pratt v. Durkop, 356 So.2d 1278 (Fla. 2nd DCA 1978), that the timely filing of suit is all that is required to stop the statute from running. Neither the Supreme Court of Florida nor this Court has spoken to the precise question.

We are sorely tempted by expedition to resolve the question presented, but that is not a proper reason for granting certiorari. Expediency and the possible saving of time and expense do not constitute grounds for granting review of interlocutory orders by common law certiorari. Should we grant certiorari in discovery questions such as this, this Court would become inundated in the review of such a multitude of discovery questions that our present docket predicament could but worsen. Accordingly, we decline to grant the writ in this case because the issue presented can be resolved upon plenary appeal. We reaffirm the rule announced in Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975).

Petitions for writ of certiorari are DENIED.

ANSTEAD and LETTS, JJ., concur.


author: DANAHY, Judge.

text:
    Clark Dean CHAUDOIN, Appellant, v. STATE of Florida, Appellee.
    No. 77-1263.
    District Court of Appeal of Florida, Second District.
    Aug. 23, 1978.

      Ed Leinster, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Appellant and his brother James were tried together and found guilty of murder in the second degree and aggravated battery. Appellant urges three grounds for reversal of his conviction, one of which is that the evidence against him was insufficient as a matter of law. We find that point to have merit.

The charges against appellant and his brother arose from a shooting which resulted in the death of one victim and the wounding of another. The thrust of the state’s case was that the brother, James, pulled the trigger and that appellant aided and abetted James in that action.

The only evidence of appellant’s complicity was circumstantial. While the credibility of the witnesses and the weight of the evidence are matters within the sole province of the jury, it is the proper function of this court to review the evidence and determine whether it was sufficient as a matter of law to support the verdict of guilty. Williams v. State, 206 So.2d 446 (Fla. 4th DCA 1968).

In weighing the sufficiency of circumstantial evidence, the test to be applied is whether that evidence is not only consistent with guilt but also inconsistent with any reasonable hypothesis of innocence. Head v. State, 62 So.2d 41 (Fla.1952); Mayo v. State, 71 So.2d 899 (Fla.1954); Davis v. State, 90 So.2d 629 (Fla.1956). In reversing a conviction in Davis v. State, our supreme court said:

Evidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, it is not sufficient to sustain conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt. Even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence. So it is in the instant case we find implicit in the circumstantial evidence offered for conviction a possibility of innocence which is equally as strong as the possibility of guilt.

Id. at page 631.

We will summarize here all of the circumstances which the jury could have found from the evidence adduced at trial, viewed in the light most favorable to the state.

On the night in question, appellant and James entered the bar of the Old Town Inn and there confronted one Kenneth Bagwell. Bagwell was not a stranger to them; there were bad feelings between the Chaudoin brothers and Bagwell, and the brothers probably came to the bar for the purpose of seeking Bagwell out. They engaged in an argument with him concerning a shooting some two years previously, and James said to Bagwell that he had a grudge to settle. Appellant and James picked a fight with Bagwell in which both participated, although James was the prime instigator.

Observing appellant and James fighting with Bagwell, Charles Ross and Rupert’Tu-ten joined the fray. They and Bagwell succeeded in throwing the brothers out the front door of the bar. Outside, appellant punched Ross in the nose and then took something from his pocket which looked like a knife. Thereupon Ross went to his truck and got his revolver. He, Tuten and Bagwell then re-entered the bar, together with another bar patron who had joined the group outside.

Four to eight minutes later (the witnesses varied in their estimates) two gun shots were heard followed by approximately eight more. The first two shots were fired through the front doorway of the bar with the door open, the remainder through the closed wooden door. Bagwell was killed and Tuten wounded.

Just before the shots were fired, a witness saw the front door open and observed the silhouette of a man’s face, a streak of black hair, and a piece of what appeared to be pipe. (James’ hair is black; appellant’s hair is lighter). The same witness heard Bagwell say, just before the shots, “The sons of bitches have come back with guns.” Another witness heard “They’ve come back, they’ve got a gun.” A third witness heard “Get down, they’ve got a damn rifle.”

Upon hearing the shots, Ross exited the building through a side door with his revolver. As he did so he saw a person he could not identify running behind the building to his right. He went around to the front of the bar and there saw James standing twenty feet or more out in the parking lot with a rifle pointed at the front door and firing. He confronted James, whereupon James threatened to shoot him too. Ross then shot at James and James ran across the road to an orange grove. Ross waited, and about ten minutes later he saw James coming back. James said to Ross “I’m shot to pieces, don’t shoot any more.” Ross then told James to leave. James got in his truck and drove away. All this occurred in the parking lot in front of the bar, which was lighted. All this while, Ross looked for appellant but never saw him.

No one else saw appellant outside the bar after he and James were ejected and the ejecting group came back in. A witness who lived next door testified that he saw someone run across the road from the bar, and also saw someone on the corner of his lot by a telephone pole. He observed the latter individual get into a truck and pick up whoever it was that was running from the bar. The witness was not able to identify either individual. He testified that the man he described as running across the road was not carrying anything, but that the man behind the telephone pole had something in his hand which could have been anything.

Later, two rifles were recovered in some bushes outside the trailer in which appellant and James lived, and it was determined that shell casings found in the parking lot of the bar were fired from one of these. The purchase of that rifle was traced to James. No fingerprints were found on either weapon. There were ten shell casings found in the parking lot more than thirty feet from the front door of the bar.

On this evidence, the state presented its case to the jury that James was guilty of murder and aggravated battery for having actually done the shooting, and appellant was equally guilty for having aided and abetted James in the shooting.

In the commission of a crime, both the actor and one who aids and abets him are principals in the first degree and may be charged and convicted of the crime. Both are equally guilty. Section 777.011, Florida Statutes (1977). There are two essential conditions which must be met to result in the status of aider and abetter. Such a person is one who has the intent that the crime be committed and who, by acts or words, assists or encourages another in the actual commission of the crime. Ryals v. State, 112 Fla. 4, 150 So. 132 (1933). It is not necessary that the aider or abetter be physically present aiding and abetting his partner in the crime; it is sufficient if, pursuant to a previous understanding, he is sufficiently near and so situated as to abet or encourage, or to render assistance to, the actual perpetrator. Pope v. State, 84 Fla. 428, 94 So. 865 (1923).

As in any other criminal case, the guilt of an aider or abetter can be established by circumstantial evidence. Williams v. State, 206 So.2d 446 (Fla. 4th DCA 1968); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1974); Rosson v. State, 319 So.2d 64 (Fla. 2d DCA 1975). Such evidence, however, must meet the test first set forth above; that is, it must be both consistent with guilt and inconsistent with any reasonable hypothesis of innocence. Evidence which establishes nothing more than a suspicion, or even the probability of guilt, is not sufficient. Davis v. State, supra.

We hold that the evidence in this case does not meet the standard by which the sufficiency of circumstantial evidence is to be measured in a criminal prosecution. Certainly the evidence is consistent with the hypothesis of guilt put forth by the state—that appellant and James went to the bar at the Old Town Inn looking for Kenneth Bagwell and, acting in concert, picked a fight with Bagwell, against whom they had a grudge; that after they were ejected from the bar, appellant continued to act in concert with James by helping him to procure the rifle, opening the bar door so that James could shoot through it, and otherwise assisting in the shooting, after which James picked up appellant in the truck and drove away. However, several reasonable hypotheses of innocence are equally consistent with the evidence.

The fact that the bar door was opened by someone supports equally the conclusion that that someone was James as it does the conclusion that that someone was appellant. True, when James was seen by Ross standing outside with the rifle, he was some distance from the door. But there were two series of shots and he could have retreated after firing the first two shots through the open doorway and before firing the remainder through the door. The number and location of the shell casings do not foreclose the reasonableness of that conclusion. There is simply not enough to support the state’s argument that someone besides James must have opened the door and that person must have been appellant.

Even assuming that it could reasonably be inferred that the unidentified running figure outside the bar was appellant, that inference would establish only that appellant was present in the vicinity when the shooting took place. Mere presence at the scene of the crime, without more, is not sufficient to establish either an intent to participate or an act of participation. Ryals v. State, supra.

To find appellant guilty, an impermissible succession of inferences would be necessary. First, it would have to be inferred that appellant remained in the vicinity outside the bar after the fight. Second, that inference would have to be used to support the further inference that appellant’s purpose in remaining was to participate in the shooting and that he acted in furtherance of that purpose by some word or deed. Circumstantial evidence is not sufficient when it requires the pyramiding of assumption upon assumption in order to arrive at the conclusion necessary for a conviction. Gustine v. State, 86 Fla. 24, 97 So. 207 (1923).

The evidence in this case just as reasonably supports the inference that, although appellant may have remained in the vicinity, he did so with no intention whatsoever of participating in a shooting. Even if appellant was the running person seen by the witnesses, he could have been fleeing the scene to avoid any participation in the shooting. A willingness, indeed an eagerness, to fight does not necessarily equal a willingness to kill. Hard feelings against a person shared by two brothers may incite one to shoot but not necessarily incite the other to help him. Concerted action in a fist fight does not necessarily produce concerted action to kill. Conclusions of guilt from these circumstances are reasonable, but certainly do not exclude reasonable hypotheses of innocence.

The evidence was not sufficient to sustain appellant’s conviction and that conviction is, therefore, reversed. Recent decisions of the United States Supreme Court have established that the retrial of a defendant whose conviction has been reversed for insufficiency of the evidence would violate the double jeopardy clause of the United States Constitution, which is fully applicable to state criminal proceedings. Therefore, we are required to direct that appellant be discharged. Burks v. U. S., 437 U.S. -, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. -, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

Reversed with directions that appellant be discharged.

RYDER, Acting C. J., and PIERCE, WILLIAM C., J. (Ret.), concur.

      . The other two points raised by appellant concern the denial of a motion to suppress and an alleged discrepancy between the evidence and the statements in a bill of particulars furnished by the state. These points have been considered and rejected.

      . James’ separate appeal from his conviction has been affirmed by this court without opinion. Chaudoin v. State, No. 77-1241 (Fla. 2d DCA, June 30, 1978).

      . The testimony regarding the number and location of the shell casings, and the number of shots actually fired, is not at all clear.


author: MILLS, Judge.

text:
    Alton KELLY, Sandra Lee Kelly and Government Employees Insurance Company, Appellants, v. Alan C. KINSEY, Appellee.
    No. GG-21.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1978.

      Robert P. Gaines of Beggs & Lane, Pensacola, for appellants.
    James R. McAtee, Pensacola, for appellee.
   MILLS, Judge.

Appellants (Kelly) appeal from a final judgment entered on a jury verdict in a suit brought by appellee (Kinsey) seeking damages for personal injuries arising out of an automobile-motorcycle collision. This is the second appearance of this case before us. In Kinsey v. Kelly, 312 So.2d 461 (Fla. 1st DCA 1975), we reversed a judgment in favor of Kelly because the jury verdict was contrary to the manifest weight of the evidence.

Kelly contends the trial court erred in admitting certain opinion testimony of Dr. Bennett and contends that as a matter of law Kinsey was guilty of some negligence that was a legal cause of the collision. Kinsey contends the trial court erred in refusing to admit into evidence his request for admissions by which Government Employees Insurance Company, the Kellys’ liability carrier, admitted that it settled Kinsey’s motorcycle damage for $300.00.

The accident occurred at an intersection with a signal light. Ms. Kelly was in the left turn lane facing north. Kinsey was traveling south. Ms. Kelly made a left turn into the path of Kinsey’s motorcycle. Kinsey did not attempt to change his course, but he applied his brakes. He hit the right rear fender of the automobile. Had Kinsey turned two feet to the left, he would have avoided the collision.

The tibia and fibula of Kinsey’s right leg were fractured. As a result, his right leg is one-half inch shorter than the left.

An employment agency owner was of the opinion that Kinsey was a good candidate for employment as a combination radio-television announcer and advertising salesman. Dr. Bennett, a professor of finance, economics and statistics at the University of West Florida, was of the opinion that Kinsey would receive only two-thirds as much in annual earnings increase during his first ten years of employment in that field as the average person. This testimony was received over Kelly’s objection. When asked how he arrived at this conclusion, Dr. Bennett stated it was a judgment matter and he believed that Kinsey would be unable to work with the intensity necessary to achieve the average rate. He admitted that he had no personal knowledge of the physical activity required of a combination radio-television announcer and advertising salesman. Kelly’s motion to strike Dr. Bennett’s testimony was denied.

In order to qualify as an expert in a given area, a witness must show that he has acquired special knowledge of the subject matter by either education, training or experience. Upchurch v. Barnes, 197 So.2d 26 (Fla. 4th DCA 1967). Expert testimony may be given only by persons skilled in the subject matter of the inquiry. Mills v. Redwing Carrier, Inc., 127 So.2d 453 (Fla.2d DCA 1961). The opinion of an expert witness cannot be used to form the basis for a conclusion in the absence of evidence. Arkin Construction Company v. Simpkins, 99 So.2d 557 (Fla.1957). An opinion is worth no more than the reasons on which it is based. Le Fevre v. Bear, 113 So.2d 390 (Fla.2d DCA 1957).

It was not shown that Dr. Bennett had any expertise by either education, training or experience, in determining the effect of physical impairment on the ability of one engaged as a radio-television announcer and advertising salesman. It was not shown that he had qualifications in determining the effect of a one-half inch shorter leg on a radio-television announcer-salesman. Dr. Bennett’s assumption that Kinsey would receive annual increases only two-thirds as great as the average employee in the field during the first ten years employment was not supported by the evidence. There was no evidence that the injury to and impairment of Kinsey’s right leg would have any effect upon his earning capacity. The only reasons Dr. Bennett gave for his assumption were that it was a judgment matter or the use of common sense. These reasons caused his testimony to be speculative and to invade the province of the jury.

The effect of Dr. Bennett’s testimony is apparent from the verdict. Kinsey received his medical treatment from the United States Navy. A separate award was made to it for the expense it incurred in treating Kinsey. The amount awarded to Kinsey individually was $55,000.00.

Kinsey was in the hospital for six weeks. He then returned to his regular duty as a dental technician at a base pay of $539.00 per month. He has since been promoted to E6, and at the time of trial was an administrative assistant to the senior dental officer.

At the time of trial, he was spending about 50 percent of his working time on his feet. He had no difficulty doing the work, although he sometimes noticed soreness in his injured leg at night. He found that using a shoe with a lift made him more comfortable.

In view of this testimony, it is obvious that the jury verdict awarding $55,000.00 to Kinsey individually included in large part the figure given by Dr. Bennett as his opinion of the reduced earning capacity of Kinsey. That figure was $62,415.00 after reduction to present value at a discount rate of six percent. The jury was obviously influenced by Dr. Bennett’s testimony. It was error to admit that testimony into evidence and the error was harmful.

The evidence contained in the record clearly indicates that jury issues were raised as to negligence and comparative negligence. The trial court properly submitted these issues to the jury after correctly instructing the jury on the applicable law. We agree with the trial court that Kinsey was not guilty as a matter of law of any negligence legally causing the collision. There was substantial evidence from which the jury could and apparently did find that he was traveling within the speed limit, on his side of the road, and on a green light, when Kelly suddenly pulled in front of him, proximately causing the collision.

The trial court did not err in refusing to receive Kinsey’s request for admissions whereby. Government Employees Insurance Company admitted that it settled his property damage claim for $300.00. Hernandez v. Parrott, 346 So.2d 1213 (Fla.3d DCA 1977).

We reverse the judgment as to the damage issue and remand to the trial court for a new trial on the issue of damages only. In all other respects we affirm the judgment.

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


text:
    Dan Currie GILBERT, Appellant, v. STATE of Florida, Appellee.
    No. HH-490.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1978.
    Michael J. Minerva, Public Defender; Margaret Good and Louis Carres, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant appeals his grand larceny conviction, claiming that a statement made by the prosecutor in his closing argument constituted an improper comment on his constitutional right to remain silent. We agree and reverse.

The record reveals that the evidence against appellant was composed of (1) the testimony of a co-defendant who had turned State’s evidence, and (2) the testimony of a Pensacola police investigator who stated that inculpatory information against appellant had been given to him by third parties who did not testify at the trial. Appellant did not testify or present a defense. The prosecutor in his closing argument made the following statement:

“I submit to you that the McDaniels [the third parties mentioned in the investigator’s testimony] have done that sufficiently [corroborated the co-defendant’s testimony] in placing Gilbert in Pensacola at the time. And if Gilbert wasn’t in Pensacola, then I submit you probably have some alibi witnesses to tell us exactly where he was, but we don’t have that, and so I submit — ”

Appellant’s counsel objected and moved for a mistrial. The court denied the motion and gave the jury the following cautionary instruction:

“Ladies and gentlemen of the jury, the state attorney made a comment as to the defendants being placed in Pensacola, and made the further comment that should he not have been in Pensacola he probably could have had an alibi or some witnesses to testify. The defendant is not required in any criminal case to testify himself, produce any evidence in his own behalf, so I will caution you to disregard the inadvertent comment that the state attorney made, and let him proceed on his argument.”

Subsequently, appellant was found guilty by the jury and his motion for a new trial was denied.

We believe that in the circumstances of this case the comment made by the prosecutor and the judge’s subsequent cautionary instruction called an improper amount of attention to the appellant’s lack of an alibi defense and thereby violated his right to remain silent. The prosecutor’s remark may well have tipped the scales against appellant by leaving the jury with the impression that appellant had the burden to come forward with a defense and prove his innocence. That error was particularly harmful here where the State’s case was comprised of the vague, contradictory testimony of the co-defendant and little else. We believe appellant should be afforded a new trial.

The judgment and sentence are reversed and the cause remanded for a new trial.

McCORD, C. J., and MILLS and ERVIN, JJ., concur.


author: ERVIN, Judge.

text:
    The LEWIS STATE BANK, Appellant, v. ADVANCE MORTGAGE CORPORATION, a Michigan Corporation, Appellee.
    No. II-402.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1978.
    Rehearings Denied Oct. 10, 1978.

      John D. Buchanan, Jr., of Henry, Buchanan, Mick & English, M. Stephen Turner, of Thompson, Wadsworth, Messer, Turner & Rhodes, Tallahassee, for appellant.
    J. Michael Huey, of Huey, Camper & Guilday, Tallahassee, for appellee.
   ERVIN, Judge.

Lewis State Bank and Warrington Village Apartments, Ltd., appeal a final summary judgment entered in favor of third party defendant Advance Mortgage Company.

Warrington, a limited partnership, obtained a construction loan from Advance in the amount of $2,789,500 for the purpose of developing an apartment complex in Pensacola, Florida. The construction loan was insured by the Department of Housing and Development (HUD). One of HUD’s conditions to the issuance of insurance was that two percent of the face amount of the loan, or $55,790, be deposited with Advance as a working capital deposit. Warrington made a cash deposit at the time of closing. Later Warrington requested that Advance obtain permission from HUD to permit Warrington to substitute letters of credit for the cash deposit. HUD allowed the substitution provided that Advance furnish it with a certification stating that the letters were unconditional and irrevocable and issued by a banking institution. At War-rington’s request, on June 16, 1972, the Bank issued an irrevocable and unconditional letter of credit in the amount of $55,790 to Advance as beneficiary with an expiration date of August 10, 1973. Upon receipt of the letter of credit, Advance returned the cash deposit to Warrington.

Prior to the letter’s expiration, on June 17, 1973, Advance wrote Warrington advising that it was Warrington’s responsibility to maintain the letter in effect until such time as the deposit was no longer required by HUD. Advance also requested Warring-ton to arrange for an extension of the letter for a period of no less than 150 days. War-rington failed to respond to Advance’s requests and Advance contacted the Bank advising that unless the letter of credit was extended, Advance would sight draft it.

On August 9, 1973, following Advance’s request, the Bank replied, “We hereby extend our letter of credit ... to February 1,1974. . . . ” It further advised that it incorporated into the original letter of credit certain requirements that no draws be made for anything other than working capital as defined by correspondence from Advance to the Bank. The Bank requested that any claim for payment be accompanied by a letter specifying the expenses which should be paid from the funds disbursed. On August 14, 1973, Advance furnished to the Bank a definition of working capital.

On January 8, 1974, after the original note between Warrington and Advance had gone into default the previous November, Advance requested Warrington to obtain another extension of the letter which was to expire on February 1, 1974. When it received no response from Warrington, Advance, on January 22, 1974, sight drafted the letter. The Bank refused to honor the demand without additional information as to the use of the funds. The information was provided and on January 25, 1974, Advance again sight drafted the letter. On January 30, 1974, the Bank honored the draft and paid Advance the sum of $55,790. The Bank later filed a claim against War-rington on the promissory note in the sum of $55,790. Warrington filed an answer and third party complaint against Advance. The Bank also filed a cross-claim against Advance contending that Advance was unjustly enriched resulting from its sight draft of the letter since it failed to comply with the terms of the underlying correspondence which it alleged modified the original letter.

The lower court granted summary judgment in favor of Advance, holding that no new letter of credit was ever issued by the Bank; that the original letter was simply extended for a longer term; that the purpose of the correspondence and discussions between Advance and the Bank was to define the term “working capital deposit”; that the certification issued January 25, 1974 by Advance was not a documentary letter, and that the letter of credit, sight drafted by Advance, remained an irrevocable, unconditional letter which had not been altered to a conditional or documentary letter.

Appellants argue that the letter of credit was indeed altered; that Advance did not comply with the terms set out in the letter of August 14, 1973, or the letter of January 25, 1974, certifying that certain payments would be made once the letter of credit was honored. Since, contrary to the terms of the certification, the sums specified to be paid were in fact not so paid, the terms of the conditional letter of credit were not complied with, resulting in breach of the contractual provisions and unjust enrichment to Advance.

The crucial question for our consideration is whether it was the parties’ intention that the letter be modified so that no draws could be made against it unless the terms of the alteration were strictly complied with, or whether it was their intention that the letter be unchanged and that the underlying correspondence pertaining to “working capital deposit” was, as the lower court held, merely to define the term. We find nothing within the provisions of the Uniform Commercial Code which explicitly covers the situation involved. Certain sections, however, state general rules of construction to be applied to letters of credit.

Section 675.103, Fla.Stat. (1977) (UCC § 5 — 103), requires that a letter of credit clearly state whether it is revocable or irrevocable. “[I]n the absence of such statement [it] shall be presumed to be irrevocable.” The UCC comment to Section 5-103 observes that neither the definition of the letter of credit or any other section of the article concerns the issue of when a credit, not clearly labeled as either revocable or irrevocable, falls within one or the other category, and the issue is left to the courts for decision in the light of the facts, general law and general provisions of the code on course of dealing and usage of trade. Moreover the comment to Section 5-102(3) states that it recognizes in the present state of the law no statute can effectively codify all the possible law of letters of credit; therefore the second sentence of subsection (3) “makes explicit the court’s power to apply a particular rule by analogy to cases not within its terms, or to refrain from doing so.” The comment continues: “[U]nder Section 1-102(1) [] such application is to follow the canon of liberal interpretation to promote underlying purposes and policies.”

As a general rule, the interpretation of a written contract is a question of fact. See Dobson v. Masonite Corp., 359 F.2d 921, 923 (5th Cir. 1966); 3 Corbin, Contracts, § 554 at 219 (1960). Nevertheless, agreement on this point does not compel the conclusion that a jury question is always created when parties supposedly differ regarding the meaning of terms used in a writing. Professor Corbin makes the following analysis:

The question of interpretation of language and conduct — the question of what is the meaning that should be given by a court to the words of a contract, is a question of fact, not a question of law. There is no “legal” meaning, separate and distinct from some person’s meaning in fact.
We must bear in mind, however, that this question of fact is like other questions of fact in this: it may be a question that should be answered by the judge rather than by the jury. In cases in which it is so answered, it is probable that the interpreting judge may say that interpretation of language is a “question of law for the court.”
******
. If the words of agreement, whether oral or written, are definite and undisputed, and if there is no doubt as to the relevant surrounding circumstances, the interpretation of the words is ordinarily held to be a matter for the court. Even if these circumstances are in dispute, the evidence as to what they were may be so clear and convincing that the court would set aside a verdict contrary to that evidence. The result of these rules is that in very many cases where the contract is in writing the interpretation of its language has been held to be for the court and not for the jury. Id. at 219-25.

We agree with the trial court that under the circumstances of this case there was no genuine issue of material fact left to be resolved. All the parties were aware on June 16, 1972, when the Bank issued its irrevocable, unconditional letter of credit that the purpose of the letter’s terms was to comply with HUD’s requirement that the letter be unconditional and irrevocable, and that the sum pledged was to provide for a working capital deposit. The finding by the lower court that the purpose of the correspondence was to define and explain “working capital deposit” is entirely supported by the record. Indeed, the letter of August 14, 1973, that appellants contend defined the conditions which extended the letter of credit, quoted word for word from HUD’s commitment for insurance of advances, which was in existence at the time the first letter issued.

The lower court’s interpretation of the contract was in no way inconsistent with the actions of the Bank’s employees. Mr. McDaniel, senior vice-president for the Bank, testified that the letter of August 14, 1973 from Advance clarified the term “working capital under the federal housing administration’s commitment for insurance of advances. . . .” Before honoring Advance’s sight draft, Robert Wadley, the Bank’s former vice-president, contacted HUD officials concerning Advance’s expenses pertaining to the working capital clause and was advised those expenses were as contemplated in HUD’s commitment. The court’s interpretation of the letter that it remained irrevocable and unconditional is unquestionably supported by the evidence. The circumstances surrounding the transaction lead inevitably to the conclusion it was the parties’ intention “to permit the continued expansion of commercial practices through . . . agreement.” Section 671.102(2)(b).

It is true that Warrington did not expressly consent to the extension of the letter of credit prior to the Bank’s agreement to extend it on August 9, 1973. The original letter, which had an expiration date of August 10, 1973, had to be presented for payment by that date or would have been rendered ineffective. 9 CJS Banks and Banking § 178c (1938). Section 675.-106(2) (UCC § 5-106(2)) provides that “unless otherwise agreed once an irrevocable credit is established as regards the customer it can be modified or revoked only with the consent of the customer . . . .” Does the failure of the customer, Warrington, to consent to the extension before its issuance invalidate it? Warrington admits that it acquiesced in the extension subsequent to the issuance of the extended letter. In its brief, Warrington states: “At minimum, Warrington concurred in the extension in the bank’s action. Neither the extension itself nor the fee was protested, and War-rington gave a new promissory note to evidence the obligation under the extension.” Under general principles of equity it is clear that Warrington would be estopped by its later acquiescence from arguing it was excused from the terms of the extension on the ground that it did not expressly consent to the extension prior to the issuance. See 12 Fla.Jur., Estoppel and Waiver, § 44 (1957). While UCC Article 5 does not expressly make provision for circumstances to which waiver or estoppel might apply, the comment to Section 5-104 states that “[questions of mistake, waiver or estoppel are left to supplementary principles of law.” Additionally, Section 671.103 (UCC § 1 — 103) generally provides that unless displaced by particular provisions of the code, principles of law and equity and the law relative to estoppel, fraud, misrepresentations, etc., shall supplement the code’s provisions. Consequently general principles of equity, particularly those relating to waiver and estoppel, apply here. As a result War-rington, by its subsequent acts, is now es-topped from denying it consented to the letter of extension.

AFFIRMED.

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

      . The letter stated in part:
      In accordance with our telephone conversation, I wish to define the uses of the Working Capital Letter of Credit on the captioned project, as stated in the Federal Housing Administration’s “Commitment for Insurance of Advances”, paragraph Q)(2):

      Deposit to meet cost of equipping and renting the project subsequent to completion of the entire project or units thereof, and to be applied to taxes, mortgage insurance premiums, property insurance premiums and assessments required by the terms of the mortgage accruing subsequent to initial endorsement of the mortgage for insurance, and not included in the proceeds of the mortgage . . . $55,790.00.
      It is also agreed that any request for payment under this Letter will be accompanied by a letter specifying the expenses that will be paid with funds drawn.

      . Advance’s letter of certification stated:
      In connection with our Sight Draft in the amount of $55,790.00 drawn under documentary letter of credit dated June 16, 1972, we hereby certify to you that these funds shall be used in connection with FHA Project No. 063-44039 LDP located in Warrington, Florida, known as Warrington Village Apartments, LTD.
      Be advised that payments will be made as follows:
      FHA required Mortgage Insurance Premium $21,799.97
      Escrows from December 1, 1973 to February 1, 1974 Insurance, MIP and Reserve 13,557.66
      Real Estate tax escrow account for taxes due in year following completion of construction 2,475.77
      Balance for expenses for cost of equipping and renting the project subsequent to completion and other expenses for escrow accounts under terms of FHA Regulations on Working Capital 17.956.60 $55,790.00

      . Section 675.109(2), F.S. (1977), requires the issuing bank to examine the documents with care in order to assure they appear regular on their face.

      . “A letter of credit is governed by the same general principles of law as are all other contracts in writing.” 50 Am.Jur.2d, Letters of Credit, § 13, p. 409 (1970).

      . Section 675.102(3) (UCC 5-102(3)) provides:
      This chapter deals with some but not all of the rules and concepts of letters of credit as such rules or concepts have developed prior to this act or may hereafter develop. The fact that this chapter states a rule does not by itself require, imply or negate application of the same or a converse rule to a situation not provided for or to a person not specified by this chapter.

      . Section 1-102 states in part:
      (1) This code shall be liberally construed and applied to promote its underlying purposes and policies.
      (2) Underlying purposes and policies of this code are:
      (a) To simplify, clarify and modernize the law governing commercial transactions;
      (b) To permit the continued expansion of commercial practices through custom, usage and agreement of the parties;
      (c) To make uniform the law among the various jurisdictions, (e.s.)


author: SMITH, Acting Chief Judge.

text:
    Steven Allen BLAIR, Appellant, v. STATE of Florida, Appellee.
    No. HH-170.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1978.
    Leo A. Thomas, of Levin, Warfield, Mid-dlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Acting Chief Judge.

Blair appeals from a judgment of conviction and sentences entered on negotiated pleas of nolo contendere. The appeal has proceeded in accordance with the principles of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although the convictions are for “armed robbery” and “attempted armed robbery”, the information to which Blair pleaded made no charge that Blair used a firearm, deadly weapon, or other weapon in perpetrating the offenses. While the judgment must therefore be corrected to reflect the offenses charged, Blair was not misled in his understanding of the maximum imprisonment to which his pleas subjected him. He was correctly advised that robbery is punishable by imprisonment for a term not exceeding fifteen years. Sections 812.-13(2)(c), 775.082(3)(c), Florida Statutes (1977). The plea bargain contemplated that Blair would “receive no more than a fifteen-year sentence to serve ten and have five on probation . . . .” The sentences of ten years for robbery and five years for attempted robbery, to run concurrently, were within the parameters of both the bargain and the statutes.

The judgment is REVERSED and the case is remanded for entry of a corrected judgment imposing the same sentences. Appellant need not be present for entry of the corrected judgment.

MELVIN and BOOTH, JJ., concur.


text:
    Tony ANGELO, Appellant, v. STATE of Florida, Appellee.
    No. II-223.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1978.
    Gary Smigiel, Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., for appel-lee.
   SMITH, Acting Chief Judge.

An appeal from a conviction of conspiracy to commit grand larceny. The trial court excluded certain documentary evidence offered by appellant because appellant’s counsel failed to reveal it in reciprocal discovery before trial. Fla.R.Cr.P. 3.220. The trial court did not make full inquiry into whether the rule violation by appellant’s counsel was inadvertent or willful, whether it was trivial or substantial, and whether it had serious effect on the state’s ability to prepare for trial. Richardson v. State, 246 So.2d 771 (Fla. 1971). Yet neither did appellant’s counsel suggest the necessity for such an inquiry, or volunteer the information that the inquiry might have produced. Appellant was permitted without objection to testify concerning the documentary evidence and the facts evidenced thereby. Appellant was acquitted of grand larceny, the charge to which the evidence related. Other independent evidence supported his conspiracy conviction. Considering the whole record, the trial court’s failure to make a full Richardson inquiry was harmless error, if indeed it was error at all.

AFFIRMED.

MELVIN and BOOTH, JJ., concur.


text:
    AETNA FIRE UNDERWRITER’S INSURANCE COMPANY, Appellant, v. The SCHOOL BOARD OF GADSDEN COUNTY, Florida, Appellee.
    No. II-441.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1978.
    E. Harper Field of Keen, O’Kelley, Field & Ellis, Tallahassee, for appellant.
    Jackson G. Beatty, Tallahassee, for appel-lee.
   PER CURIAM.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the final judgment appealed from is AFFIRMED.

The court having considered the motion of counsel for the appellee for allowance of attorney’s fees for services rendered in connection with the instant appeal, it is

ADJUDGED that the sum of $1,000 is awarded as attorney’s fees for counsel for the appellee, Jackson G. Beatty, and for all of which judgment is hereby entered against Aetna Fire Underwriter’s Insurance Company and in favor of Jackson G. Beatty, for which let execution issue, such writ of execution to be issued by the clerk of the trial court.

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


text:
    Walter McCLOUD, Appellant, v. STATE of Florida, Appellee.
    No. JJ-166.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1978.
    Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Assti Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The direct and circumstantial evidence was sufficient to carry to the jury the issue of whether appellant knowingly committed a lewd and lascivious act in the presence of a child under the age of 14. Section 800.04, Florida Statutes (1977).

AFFIRMED.

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


author: SCHEB, Acting Chief Judge.

text:
    U. S. FIRE INSURANCE COMPANY, Appellant, v. PROGRESSIVE CASUALTY INSURANCE COMPANY and Phillip Hurlock, Appellees.
    No. 78-196.
    District Court of Appeal of Florida, Second District.
    Aug. 25, 1978.
    William A. Donovan of Pomeroy & Napier, Naples, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees.
   SCHEB, Acting Chief Judge.

Appellant/plaintiff U.S. Fire sued appel-lees/defendants Hurlock and his insurer Progressive, seeking contribution on the ground that Hurlock was comparatively negligent in an automobile accident which involved U.S. Fire’s insured, David Cooks-ley. The trial court awarded a summary final judgment in favor of Hurlock and Progressive. This appeal by U.S. Fire ensued.

Only one issue need be addressed. Was there a genuine issue of material fact which under Fla.R.Civ.P. 1.510 precluded entry of a summary final judgment in an action for contribution on the theory of comparative negligence? We think there was. We reverse.

The depositions before the court revealed that around 11:00 p. m. on May 20, 1974, David Cooksley was driving his Volkswagen south through Naples on U.S. 41, a four-lane highway divided by a median. He was accompanied by Edwardo Llorca, and they were headed toward Llorca’s house. As they approached the intersection at 22nd Avenue where they intended to turn left, the traffic light was green. Cooksley slowed his vehicle, entered the left-turn lane, and then proceeded to turn left into 22nd Avenue.

At the same time Phillip Hurlock was traveling north on U.S. 41 in his Pontiac Firebird. As Hurlock approached the 22nd-Avenue intersection he also had a green light. Just as he entered the intersection Cooksley’s car crossed in front of him. Hurlock applied his brakes, but was unable to avoid colliding with the right rear of Cooksley’s Volkswagen. Llorca sustained injuries to his leg which eventually required surgery.

Llorca brought suit against Cooksley and Hurlock and their respective insurers. Cooksley’s insurer, appellant U.S. Fire, negotiated a $15,000 settlement with Llorca which released the two drivers and their insurers. Following the settlement, U.S. Fire sued appellees Hurlock and Progressive seeking contribution on basis of Hur-lock’s comparative negligence. Hurlock and Progressive moved for summary judgment, contending the pleadings and depositions on file showed that Cooksley s negligence was the sole proximate cause of the accident. After a hearing the trial court granted the motion for summary judgment.

U.S Fire urges there remained a factual issue as to whether Hurlock had kept a proper lookout as he entered the intersection. Hurlock and Progressive counter that they were entitled to a judgment as a matter of law because Hurlock had the right to assume that Cooksley would obey the traffic laws, and he therefore had no duty t'o anticipate that Cooksley would not yield the right-of-way as he was required to by statute.

It is true that a motorist entering an intersection with a favorable traffic signal has the right to assume that others will obey the law and yield the right-of-way to him. Kerr v. Caraway, 78 So.2d 571 (Fla. 1955); MacNeill v. Neal, 253 So.2d 263 (Fla. 2d DCA 1971); Wagner v. Willis, 208 So.2d 673 (Fla. 2d DCA 1968). However, it is equally true that a motorist who proceeds into an intersection must also use reasonable care. As we said in MacNeill v. Neal, supra, at 264:

A motorist about to enter an intersection with the traffic signal in his favor has the right of way. He also has a right to assume others will obey the law and exercise due care to avoid an accident. However, even though he has a favorable light he must exercise reasonable care to determine that there is no impending traffic which would impede safe passage through the intersection. He has not exercised reasonable care once he knows or should have known that another motorist is going to run a red light and has a clear opportunity to avoid the collision. (Emphasis supplied, citations omitted.)

See also Mason v. Remick, 107 So.2d 38, 39 (Fla. 2d DCA 1958); Tackett v. Hartack, 98 So.2d 896 (Fla. 3d DCA 1957).

Hurloek, in his deposition, said that as he approached the 22nd-Avenue intersection he saw a police car stopped at the red light to his left, so he checked his speedometer to make sure he was going under the speed limit of 45 m. p. h. Hurloek said he was looking straight ahead as he entered the intersection, but that Cooksley’s car “just seemed to appear out of nowhere” and that he did not see it until it was a “car length” from his own vehicle. He immediately applied his brakes but claimed he could not avoid the impact.

Cooksley said in his deposition that he made the left turn into 22nd Avenue at 15 or 20 m. p. h. with his left turn signal on. He said he did not see Hurlock’s Pontiac until it was approximately three car lengths away, and by then it was too late to avoid the collision.

Llorca said in his deposition that both he and Cooksley noticed the policeman as they approached the intersection, and that, in fact, Cooksley had expressed concern that the officer might stop him. Llorca said he could not understand this, as Cooksley was not violating any traffic laws at the time. Llorca had seen Hurlock’s Pontiac approaching the intersection as Cooksley began his left turn, but thought Cooksley could make the turn. When it became obvious to him that Cooksley could not, Llorca told him to “step on it.” Unfortunately it was too late to avoid the collision. Llorca further stated that Hurlock’s car did not seem to slow down before the collision, nor did he remember hearing brakes squeal or a horn blow. However, he did remember seeing skid marks after the accident which he estimated to be some thirty feet in length.

Patrolman Paul Harris, the driver of the police car that was stopped at the red light, was also deposed. The officer said that after Cooksley began his left turn that “all of a sudden” Cooksley slowed down “almost to a pause,” and that Hurloek then slammed on his brakes.

Since Holl v. Talcott, 191 So.2d 40 (Fla.1966), appellate courts have closely scrutinized whether a movant has satisfactorily met the burden of conclusively showing the absence of any genuine issue of material fact. Moody v. Seaboard Coastline RR., 287 So.2d 707 (Fla. 2d DCA 1974); Fletcher Co. v. Melroe Mfg. Co., 261 So.2d 191 (Fla. 1st DCA 1972). And, of course, all facts and inferences are to be resolved against the party seeking a summary judgment and in favor of the party opposing it. Stringfellow v. State Farm Fire & Casualty Co., 295 So.2d 686 (Fla. 2d DCA 1974); Goodman v. Anthony, 269 So.2d 756 (Fla. 3d DCA 1972); Lescrynski v. Middlebrook, 260 So.2d 215 (Fla. 4th DCA 1972). Justice Sundberg, speaking for the majority in Wills v. Sears, Roebuck & Co., 351 So.2d 29, 30 (Fla.1977), recently commented upon the movant’s burden:

A party moving for summary judgment must meet a twofold requirement:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits [in support or opposition, or both], if any, show [1] that there is no genuine issue as to any material fact and [2] that the moving party is entitled to a judgment as a matter of law. Fla.R. Civ.P. 1.510(c).
In order to carry its burden as to the first of these requirements, the movant must show conclusively the absence of any genuine issue of material fact, Visingardi v. Tirone [193 So.2d 601 (Fla.1966)]; Holl v. Talcott, supra. The Holl court additionally stated that the burden on parties moving for summary judgment is greater than the burden which the plaintiff must carry at trial, because the movant must prove a negative — the nonexistence of a genuine issue of material fact. Id., at 43.

Historically courts have been especially cautious where summary judgments have been entered in negligence cases. As Justice Sundberg went on to say in Wills, supra, at 30:

Movant’s burden is even more onerous in negligence actions where summary judgment procedures historically have been employed with special care. Holl v. Talcott, supra; Stephens v. Moody, 225 So.2d 586 (Fla. 1st DCA 1969); Maury v. City Stores, Inc., 214 So.2d 776 (Fla. 3d DCA 1968); Suhr v. Dade County, 198 So.2d 837 (Fla. 3d DCA 1967). The necessity for exercise of such caution is emphasized by virtue of this Court’s adoption of comparative negligence, Hoffman v. Jones, 280 So.2d 431 (Fla.1973), and its recent abolition of assumption of risk as an absolute defense, Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). Unless a movant can show unequivocally that there was no negligence, or that plaintiff’s negligence was the sole proximate cause of the injury, courts will not be disposed to granting a summary judgment in his favor.

As can be seen from the above quote, the introduction of the doctrine of comparative negligence into our law in 1973 has accentuated thé degree of caution with which a trial court must view a motion for summary judgment.

In the case before us we do not feel that Hurlock and his insurer Progressive conclusively showed that Hurlock exercised reasonable care in approaching the 22nd-Avenue intersection. The finder of fact should be permitted to determine what, if any, degree of negligence should be attributed to Hurlock’s conduct.

Accordingly, the summary final judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

OTT and DANAHY, JJ., concur.

      . The traffic light did not have a turn arrow, but was of the general variety applying to all traffic.

      . Sections 316.075 and 316.122, Fla.Stat. (1973).


text:
    Paul Stephen SMITH, Appellant, v. STATE of Florida, Appellee.
    No. HH-140.
    District Court of Appeal of Florida, First District.
    Aug. 30, 1978.

      Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Smith appeals his conviction for the offense of sexual battery with the use of a deadly weapon. The issues in Smith’s appeal turn primarily upon the reliability of the victim’s in-court identification.

We must initially determine whether the pre-trial identification was impermis-sibly suggestive. If we so find, then the next question to answer is whether the misidentification gave rise to a substantial likelihood of irreparable misidentification, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), so that it could not be said that the later in-court identification was grounded upon a source independent of the prior tainted identification. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Cribbs v. State, 297 So.2d 335 (Fla. 2d DCA 1974).

Prior to trial Smith moved to suppress the photographic identification previously made by the victim. Supporting his motion was the deposition testimony of the victim who stated that during the evening following the sexual assault, she was shown six photographs of suspects. She picked the photograph of the one whom she thought might be her assailant, but was unable positively to identify it. The photograph of defendant was not among-the six then displayed to her. The following day she was shown four different pictures from which she selected that of defendant as the transgressor. She testified that prior to her identification, Deputy Sheriff Reaves told her he had recently taken into custody a suspect who fit “the description I gave him and that the guy had been in one of the pictures the night before and I had almost picked it up, but I wasn’t sure. He said that that guy’s picture was in this bunch, too.”

The description which the prosecutrix furnished the investigating officers was that her assailant, a white male, had a goatee and blond hair to his ears. While it does not appear in the record which of the six photographs the victim nearly made her identification, in our examination we find that the only photograph of a white male with light brown hair and a beard was that of state exhibit number five. Four of the other photographs displayed men with moustaches only. Another photograph was that of a person with dark brown hair cut above his ears and face clean shaven. The photograph of defendant, marked state exhibit three, identified by the victim as her assailant, was that of a white male with blond hair to his shoulders and a clean shaven face. This photograph was taken the day following the assault after defendant had surrendered himself in to the authorities. Strangely, of all the photographs displayed to the victim only that of defendant bore the caption: “Up to fifteen years state prison Fla. Statues [sic] — 843-11.”

We conclude that the pre-trial procedure employed by the authorities was impermissibly suggestive, and the court should have suppressed defendant’s photograph from admission into evidence. The gratuitous comments made to the victim by Deputy Reaves that the prosecutrix should disregard the suspect’s facial hair because hair might be changed could have had no effect other than to focus the victim’s attention upon the defendant’s photograph, showing defendant unbearded. It is clear from our observation of the ten photographs that state exhibit number five, shown to the victim the night of the crime, most closely resembled the photograph of defendant. The additional comments that the photograph of a suspect who had recently been taken into custody was in the later array and that this photograph most closely resembled the one of the suspect whom she had nearly selected the night before cannot be judicially condoned. The hazards of misidentification increase if the police indicate to the witness that one of the persons pictured committed the crime. Wall, Eye-Witness Identification in Criminal Cases, 74 — 77 (1965). The commentator also observed, “the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor — perhaps it is responsible for more such errors than all other factors combined.” Id. at 261. And, “[rjegardless of how the initial mis-identification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.” Simmons v. United States, 390 U.S. at 383-384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253. The prejudicial effect of the officer’s comments was compounded when we consider that of all the photographs displayed to the victim only that of defendant bore the caption indicating to the victim the defendant was either a convicted criminal or charged with a crime.

Having determined that the circumstances surrounding the pre-trial photographic display were impermissibly suggestive, we now determine that the suggestiveness inherent in the showup infected as well the in-court identification of defendant. The victim never made a “live” identification of defendant during trial. Instead, on three separate occasions, she identified Assistant Escambia County Attorney John Fleming, seated at counsel table, as the perpetrator. Her only identification in court of defendant as her assailant occurred when she selected the same photograph which she had picked prior to trial.

Had there been a pre-trial line-up, which there was not, and a subsequent in-eourt “live” identification, the pre-trial taint may well have been mitigated. Had the victim pointed out defendant during the trial as the perpetrator, and testified that her identification was then grounded primarily upon her recollection of the aggressor’s features at the time of the assault, the identification might rest upon an origin independent of the prior taint. United States v. Wade, supra. None of those factors, however, exists here. Contrast the circumstances in this case with those in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), in which the Supreme Court held admissible an in-court identification by a witness who had a fleeting but “real good look” at his assailant in the headlights of a passing car. The witness testified at the pre-trial suppression hearing that he identified one of the petitioners among the participants in a formal lineup. The Court held that such evidence could support a finding that the in-court identification was “entirely based upon observations at the time of the assault and not at all induced by the conduct of the lineup.” 399 U.S. 5-6, 90 S.Ct. at 2001, 26 L.Ed.2d at 394.

Here, of course, as previously recounted, the circumstances were vastly different. The only witness to the assault was the victim, and while the victim’s testimony needs no corroboration, it nevertheless must be carefully scrutinized so as to avoid an unmerited conviction. Moreover when the evidence is not substantial in character, a conviction will be reversed and a new trial ordered where such evidence is not satisfactory to establish the identity of an accused as the participant in a crime of which he has been found guilty. Tibbs v. State, 337 So.2d 788 (Fla. 1976).

This case is strikingly similar in its facts to the identification procedure which occurred in Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), where a witness was called to a police station to view a lineup. He was unable to identify the defendant as the robber despite a suggestive lineup. The police arranged a second showup, at which the witness could make only a tentative identification. Finally at yet another lineup, the witness was able to make a positive identification. Five men were in the lineup and defendant was the only person in the subsequent lineup who appeared at the prior confrontation. The United States Supreme Court stated it would apply the rule announced in Simmons v. United States, supra, and held that the identification procedure was so unnecessarily suggestive and conducive to irreparable misidentification as to result in a denial of due process. The court concluded that the suggestive elements in the identification procedure made it inevitable that the witness would identify defendant whether or not he was the man, saying: “This procedure so undermined the reliability of the eyewitness identification as to violate due process.” 394 U.S. at 443, 89 S.Ct. at 1129, 22 L.Ed.2d at 407.

Having considered the totality of the circumstances relating to the photographic identification of defendant both prior and during trial, we conclude that the identification procedure was so impermissi-bly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification. The cause is reversed and remanded for new trial.

MILLS, Acting C. J., concurs.

CAWTHON, VICTOR M., Associate Judge, dissents.

      . At trial the victim stated, during direct examination, that the only comment made to her by Deputy Reaves prior to her identification of defendant was that he wanted her to be sure of her identification, and she should look at the suspects’ eyes and other facial features because the hair could change.


author: MILLS, Acting Chief Judge.

text:
    DEPARTMENT OF REVENUE, State of Florida, Appellant, v. R. C. DIX, Sr., Appellee.
    No. II-295.
    District Court of Appeal of Florida, First District.
    Aug. 30, 1978.

      Robert L. Shevin, Atty. Gen., Edwin J. Stacker, Asst. Atty. Gen., for appellant.
    Delbridge L. Gibbs, of Marks, Gray, Con-roy & Gibbs, Jacksonville, for appellee.
   MILLS, Acting Chief Judge.

The issue before us is whether the assignment of a leasehold interest in real property, subject to existing mortgages, where the assignee makes the mortgage payments subsequent to the assignment, constitutes taxable consideration under the provisions of Section 201.02(1), Florida Statutes (1975), based upon the amount of the existing mortgages at the time of the assignment.

Appellee (Dix) took an assignment of leases, easements and agreements from Eastern Inns, Inc. The assignment assigned to Dix all of the interest of Eastern in a certain lease agreement. The assignment is subject to three mortgages, although there is no language in the assignment whereby Dix is to assume the indebtedness secured by the three mortgages. Since the assignment, Dix has made all payments on the mortgages. The assigned lease was between Wachovia Realty Investments, lessor, and Eastern, lessee, and was for a duration of 35 years. Under the lease, the lessee is obligated to make annual rental payments plus an additional rental payment based upon a percentage of the gross annual income. Along with the execution of the lease, the lessor extended a leasehold permanent loan to the lessee. The loan was secured by the mortgages. The lease provided that any default under the mortgages was a ground for default under the lease.

The instrument assigning the lease, easements and agreements to Dix was recorded in public records of Duval County, and no documentary stamps were attached to it. Appellant (Department of Revenue) issued a notice of proposed assessment alleging that Dix was liable for the payment of documentary stamp tax, surtax, penalty and interest in the amount of $10,515.42 pursuant to the provisions of Chapter 201, Florida Statutes. Dix brought suit under Chapter 86, Florida Statutes (1975), seeking declaratory relief from the proposed assessment. Both parties filed motions for summary judgment. The trial court entered a final summary judgment in favor of Dix. Among other things the court determined:

. . that the economic burden of making mortgage payments is coextensive with the economic burden of paying rent, and that the mortgages, therefore, do not form a ‘reasonably determinable consideration’ upon which to found a documentary stamp tax. See DeVore v. Gay, 39 So.2d 796 (Fla.1949).”

Section 201.02(1) imposes a documentary stamp tax on instruments which convey an interest in real property to another party for consideration, which must be an actual monetary consideration, or a consideration with a reasonably determinable pecuniary value. Rule 12A — 4.12(2), F.A.C., defines the term “consideration” to include a conveyance subject to mortgage debt, lien or encumbrance.

A lease is a conveyance of an interest in land within the purview of Section 201.02(1), however, leases are not ordinarily subject to documentary stamp taxes because the consideration is executory. In DeVore v. Gay, 39 So.2d 796 (1949), the Supreme Court established two rules: (1) documentary stamp taxes are limited to reasonably determinable considerations; and (2) rent is not a reasonably determinable consideration. The policy of the law is that no tax is due where the obligation to pay is contingent.

The amount of mortgage indebtedness assumed by an assignee clearly would be a reasonably determinable consideration and could support a documentary stamp tax. When there is a fee conveyance subject to a mortgage, as in Kendall House Apartments, Inc. v. Department of Revenue, 245 So.2d 221 (Fla.1971), there is a reasonably determinable consideration since the fee purchaser must pay the entire outstanding mortgage to protect his property. However, the assignees of leaseholds are not like fee purchasers. The assignee of a leasehold not assuming the mortgage need not pay the entire mortgage obligation to protect his leasehold. He need pay the mortgage to protect his interest only as long as his leasehold interest continues, and that interest may terminate in any of a multitude of ways. The economic burden of paying the mortgage is contingent upon continuation of the leasehold. It is execu-tory, and therefore cannot support a documentary stamp tax.

The Department argues that it does not seek to impose tax liability upon Dix based upon the rental payments, but only upon the amounts of the existing mortgages to which the assignment was subject. However, under the facts of this case, and as stated by the trial court, the economic burden of making mortgage payments is coextensive with the economic burden of paying rent, therefore, the mortgages do not form a reasonably determinable consideration upon which to found a documentary stamp tax under Section 201.02(1).

The final summary judgment appealed is affirmed.

ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Ollie L. WELLS and State Farm Mutual Automobile Insurance Company, Appellants, v. Carolyn D. THOMAS and Derrell C. Thomas, Appellees.
    No. JJ-237.
    District Court of Appeal of Florida, First District.
    Aug. 30, 1978.
    Joe J. Harrell, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellants.
    William Fisher, III, of Fisher, Bell, Hahn, Winn & Rubel, Pensacola, for appellees.
   PER CURIAM.

This appeal questions the correctness of a partial summary judgment rendered in favor of appellees.

The record on appeal fails to conclusively establish that there was no genuine triable issue of a material fact under the issues as made by the complaint and the answer thereto. Under these circumstances, appel-lees were not entitled to judgment as a matter of law, and the trial court erred in holding to the contrary. See Wills v. Sears, Roebuck and Company, 351 So.2d 29 (Fla. 1977).

The judgment appealed is reversed and the cause remanded to the trial court for the purpose of receiving evidence on the issues as made by the pleadings, and rendering final judgment thereon.

Reversed and remanded.

McCORD, C. J., and MILLS and BOYER, JJ., concur.


text:
    Karl SCHNICK, Appellant, v. STATE of Florida, Appellee.
    No. 77-1234.
    District Court of Appeal of Florida, Fourth District.
    Aug. 30, 1978.

      Richard L. Jorandby, Public Defender, and Harvey R. Schneider, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal challenging the legality of a search under Florida’s stop and frisk statute. We reverse.

At 9:45 p. m. on January 4, 1977, two Fort Lauderdale policemen received a radio call reporting a fight in the vicinity of the Ponderosa Bar. Upon arrival at the rear parking lot of the bar, two men, one of them appellant, Karl Schnick, were seen by the officers assisting a third man in a striped shirt, who was obviously drunk and appeared to have been in a fight. The officers proceeded on foot towards the rear entrance of the bar where they were met by several people who immediately reported that they had called the police about the fight. They pointed to the three men in the parking lot as having been the participants in the fight. One officer testified that the drunken man in the striped shirt was pointed out as the only one of the trio to have been a participant in the fight. Both officers testified that there had been no reports of any weapons having been involved in the fight and neither reported any indication at the scene that weapons were involved.

Immediately upon receiving the complaint from the people leaving the bar, the officers stopped the three men, ordered them up against nearby vehicles and searched them. The officers found a pocket knife and a “baggie” of marijuana in Schnick’s pocket. Schnick was charged with possession of marijuana. The subsequent investigation revealed that Schnick was not involved in the fight but was merely a bystander in the parking lot called upon by a friend to assist the drunk and injured fighter in the striped shirt. After unsuccessfully moving to suppress the marijuana, Schnick entered a plea of nolo con-tendere specifically reserving the right to challenge the search on appeal. He was adjudicated guilty and placed on two years probation.

The Florida “stop and frisk” law, Section 901.151, Florida Statutes (1975) provides in subsection (2) and (5):

(2) Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal laws of any municipality or country, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.
(5) Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefor offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such search discloses such a weapon or any evidence of a criminal offense it may be seized.

Under the provisions of Section 901.151(2), Florida Statutes (1975) the temporary detention of persons is authorized under circumstances which reasonably indicate such person has committed a crime. We believe that Schnick’s temporary detention was authorized under the statute.

Section 901.151(5), Florida Statutes (1975) sets out entirely separate and distinct requirements which must be met before a person may be searched. The right to search does not automatically follow once the right to detain is established. State v. Lundy, 334 So.2d 671 (Fla. 4th DCA 1976). Temporary detention, unlike arrest, does not itself authorize a search “incident to detention.” It is true in some instances that the same circumstances justifying the detention also establish probable cause to believe that a weapon is involved and hence justify a search. Wilson v. State, 324 So.2d 700 (Fla. 4th DCA 1976). But the search must be based on probable cause to believe that the detainee is armed with a dangerous weapon.

The circumstances here do not reveal probable cause to believe that Schnick was armed with a dangerous weapon. While one may speculate that a weapon could have been involved because the reported offense was a fight, such speculation is not sufficient to meet the probable cause requirements of Section 901.151(5). More importantly, the officers testified that there simply was no evidence that any weapons were involved either in the prior fight or in the confrontation in the parking lot. As candidly conceded by the officers, their plan was to search first and investigate later. Just as a valid arrest must precede a search incident to that arrest, so must probable cause to believe a weapon is involved precede a search incident to a temporary detention. See Martin v. State, 360 So.2d 396 (Fla.1978). A search cannot be justified by its fruits. Likewise, the search here is not justified by the fact that a pocket knife was actually found on Schnick.

The judgment of the trial court is hereby reversed with directions that the order denying the motion to suppress be vacated and any further proceedings be in accordance with the terms of this opinion.

REVERSED and REMANDED.

DOWNEY, C. J., and DAUKSCH, J., concur.


author: BASKIN, NATALIE, Associate Judge.

text:
    Henry Julius GREY, Appellant, v. STATE of Florida, Appellee.
    No. 77-1655.
    District Court of Appeal of Florida, Fourth District.
    Aug. 30, 1978.

      Jack A. Nants, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   BASKIN, NATALIE, Associate Judge.

This is an appeal from a conviction of involuntary sexual battery while the victim was physically helpless to resist and enhanced sentence as an habitual offender. We affirm the judgment, but remand for resentencing. The trial court failed to make findings as required under Florida Statute 775.084.

Florida Statute 775.084(3) states: “. . . the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term . . . and if the defendant is an habitual felony offender . .”
Florida Statute 775.084(3)(d):
“Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence
Florida Statute 775.084(3)(c):
“All evidence presented shall be presented in open court with full right of confrontation, cross-examination, and representation by counsel.”

Unless a finding that the enhanced sentence is necessary to protect the public from further criminal activity by Defendant is made, an enhanced sentence may not be imposed under the statute. Such a finding must be based on a preponderance of evidence.

Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976) states:

“Appellant next complains that the state adduced no proof whatsoever to show that imposition of sentence under 775.084 was necessary for the protection of the public from further criminal activity by appellant.
It is quite clear that not every subsequent felony offender must automatically be sentenced as a recidivist under 775.084, F.S.1975. A subsequent felony offender may be sentenced as a recidivist only if the court makes various findings in accordance with 775.084. Such findings must be based upon some evidence. Without such evidence in the record to justify the court’s findings, a defendant’s right to appellate review would be effectively stifled. . . .We think the invocation of such statutes requires the evidence relied upon by the trial court for the enhanced sentence be produced in open court so that the defendant has an opportunity to rebut the state’s contention. See Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).”

The trial court based its finding that Defendant should be taken off the streets upon Defendant’s four prior felony convictions presented at the sentencing by way of argument. Only the judgment and sentence on the escape conviction were admitted into evidence. The trial court also heard argument that the involuntary sexual battery occurred while the Defendant was in a work-release program as a prisoner of the State of Florida serving a sentence for escape. The trial court found that the two offenses were committed within less than five years.

Before ruling, the trial court stated: “The court further finds that the best interest of society (sic) that the Defendant be sentenced to multiple offender statute.”

Although a defendant’s prior record alone may be sufficient to justify a finding that he is likely to engage in further criminal activity upon his release from any incarceration imposed, Grimmett v. State, 357 So.2d 461 (Fla. 2d DCA 1978), the trial court has not indicated the basis for its enhanced sentence in the manner prescribed.

We agree with the decision in Phipps v. State, 352 So.2d 102 (Fla. 1st DCA 1977) that the finding need not be made in a written order. A finding announced at the sentencing hearing is sufficient to satisfy the statute.

The conviction is affirmed, the sentence is vacated, and the cause remanded for re-sentencing.

DAUKSCH and ANSTEAD, JJ., concur.