author: McCORD, Acting Chief Judge.

text:
    F. M. “Bubba” FISHER et al., Appellants, v. SUN OIL COMPANY et al., Appellees.
    Nos. X-422, X-467 to X-471.
    District Court of Appeal of Florida, First District.
    March 30, 1976.
    Rehearing Denied April 27, 1976.

      Robert L. Shevin, Atty. Gen., Joseph C. Mellichamp, III, and Larry Levy, Asst. Attys. Gen., and Gerald L. Brown, of Wells, Brown, Catón & Brady, P. A., Pensacola, for appellants. #
    Peter J. Winders, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, W. Spencer Mitchem, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, and A. L. Johnson and T. Sol Johnson, of Johnson, Johnson & Green, Milton, for appellees.
   McCORD, Acting Chief Judge.

This is an appeal from a final summary judgment in an action brought by appellees against appellants seeking declaratory, in-junctive and other relief as to appellees’ liability for 1973 ad valorem taxes on certain oil, gas and mineral leasehold interests which each appellee held covering certain land in Santa Rosa County. The leases in question were the type known as “Producer’s 88” leases, a standard form of lease used in the oil and gas industry. Each lease, as to the land covered by it, grants generally to the lessee the right of exploring, drilling, mining and operating for, producing and owning oil, gas, sulfur and all other minerals. Each contains additional provisions which grant an easement for exploration and production of minerals and further provides for termination of the lease.

Appellants contend that the Legislature, by § 193.481(1), Florida Statutes, directed that such a lease be treated as an interest in real property and subject to ad valorem taxation by the county in which the land lies. § 193.481(1) provides as follows:

“Whenever the mineral, oil, gas, and other subsurface rights in or to real property in this state shall have been sold or otherwise transferred by the owner of such real property, or retained or acquired through reservation or otherwise, such subsurface rights shall be taken and treated as an interest in real property subject to taxation separate and apart from the fee or ownership of the fee or other interest in the fee. Such mineral, oil, gas and other subsurface rights, when separated from the fee or other interest in the fee, shall be subject to separate taxation. Such taxation shall be against such subsurface interest and not against the owner or owners thereof or against separate interests or rights in or to such subsurface rights.” •

The trial court, citing Miller v. Carr, 137 Fla. 114, 188 So. 103 (1939), and Fla., 193 So. 45 (1940), concluded- that the leases “are licenses to explore and produce oil, gas and minerals and do not constitute interests or possessory interests in real property.” He found that the leases were essentially the same as those in issue in Miller v. Carr “in which the Supreme Court held that such an instrument did not constitute a conveyance of the oil in place, but merely granted the right to produce oil from the land.” The trial judge went on to say:

“The plaintiffs’ forms of lease constitute the grant of an incorporeal hereditament which passes only the right to produce oil, gas and minerals, without severance, either actual or constructive of the title to the minerals in place and without passing any title until the subject matter is removed from the earth. See Coastal Petroleum Company v. Secretary of the Army of the United States of America, U.S.Dist.Ct. So.Dist. Co. of Fla., Case No. 68-951-Civ.Ca. and 69-699-Civ.Ca. (unrepo-rted). ,
The defendants contend that when in the course of a 1963 amendment to the predecessor of Section 193.481, the words ‘not to include a leasehold interest in said subsurface rights’ were deleted from the statute, this evidenced a legislative intent to subject oil, gas and mineral leases to separate taxation. The court is not persuaded that such a legislative intent was indicated, particularly in light of the entire amendment and the rules of strict construction against taxing statutes. The case of Miller v. Carr, supra, had been decided many years before, and had the legislature intended to tax oil, gas and mineral leases as property interests separate from the fee, it would have been a simple matter to have enacted the appropriate statutory language to do so. The court is of the view that the judiciary should not construe statutes in such a manner as to impose taxation without a clear legislative mandate.”

It is our view that the trial court was correct.

It should initially be pointed out that Article VII, Section 1, of the Florida Constitution provides:

“(a) No tax shall be levied except in pursuance of law. No state ad valorem taxes shall be levied upon real estate or tangible personal property. All other forms of taxation shall be preempted to the state except as provided by general law.” (emphasis supplied)

Under the foregoing provision of the Constitution, the counties may levy ad valorem taxes upon real estate and tangible personal property in the county but all other forms of taxation are preempted to the state unless by general law the county is given authority to levy such other taxes. Oil under the ground before severance is real property -owned by the owner of the mineral fee and not by one holding a mineral lease. Miller v. Carr, supra.

In Miller v. Carr the Supreme Court had before it a suit against the executor of a Will for enforcement of an alleged oral contract by the decedent to devise an interest in royalties from an oil lease upon his property in Pennsylvania. The Supreme Court in its opinion said:

“. . . The lessee had under the terms of the lease the right and privilege only of taking the oil from the land and none other. . . . The weight of authority appears to be that royalties under an oil or gas lease, when the oil is severed from the land, is personal property. ... «
It is not alleged in either of the first two counts that the decedent had by a proper instrument in writing severed his ownership of the land and of the oil therein, if that can be done; and as at the death of the decedent, oil that had not then in fact been severed from the lands was a part of the realty, and descended to his heirs, and could not pass by oral contract to devise

When the case appeared before the Supreme Court a second time upon an amended complaint, the court held:

“As we construe the lease, it was a contract for the use of the realty for the purposes therein specified. It passed the right to produce oil from the land and nothing more.”

It is, thus, apparent under the law as established in Miller that these leases are only a right to search for and to sever oil from real property, if found. They are not an interest or estate in real property. Nor are they personal property. See Park-N-Shop Inc. v. Sparkman, Fla., 99 So.2d 571 (1957). Thus, they are not subject to ad valorem taxation unless the Legislature by the aforesaid statute has clearly made them so.

Land is not only divisible horizontally, but is also divisible vertically. Dick inson v. Davis, Fla., 224 So.2d 262 (1969). The fee may be split into a surface estate and a mineral estate by conveyance or by a reservation of the mineral fee in the conveyance of a surface fee (or vice versa) so that the result is a fee in the surface estate and a separate fee in the mineral estate. An oil, gas and mineral lease, however, is not a conveyance of the mineral fee and is not an interest in or to real property under the pronouncements of Carr, supra. The owner of an unsplit fee can, of course, execute a mineral lease just as he can execute a lease of the surface, but this does not divest him of the mineral fee any more than a lease of the surface divests him of the surface fee. Likewise, the owner of the mineral fee who does not own the surface fee can execute a mineral lease and this likewise does not divest him of the mineral fee. Had the Legislature in the statute used the term “leasehold interest in subsurface rights,” we would have an unambiguous statute. By using the term “subsurface rights,” however, we have an ambiguity. Perhaps the Legislature intended it to include a leasehold interest, but from the terminology used, such is far from clear. As pointed out by the court below, § 193.221, Florida Statutes, 1961, (predecessor to § 193.481) specifically excluded leasehold interests in subsurface rights from imposition of the tax. It said:

“Whenever the mineral, oil or other subsurface rights in real property, not to include a leasehold interest in said subsurface rights . . .” (emphasis supplied)

Appellant argues that by amending “not to include a leasehold interest in said subsurface rights” out of the statute the Legislature intended that a leasehold interest in subsurface rights was to be taxed. That argument, however, loses its force when we note that with thei dropping of the phrase regarding leasehold rights, the Legislature in the same act, Chapter 63-355, Florida Statutes, added the last sentence of the section:

“Such taxation shall be against such subsurface interest and not against the owner or owners thereof or against separate interests or rights in or to such subsurface rights.” (emphasis supplied)

Appellant contends that this sentence was simply put in to show that the tax is one in rem rather than against the person. It appears to us, however, upon considering the statute as a whole, and particularly the" last phrase underlined above, that the reference throughout the statute to subsurface rights was intended to refer to the mineral fee estate, as such estate would be subject to separate interests or rights- — • namely mineral leases, royalties, etc. From the terminology used, it appears logical that the Legislature intended that taxation of mineral fee estates be in accordance with general standards governing taxation of surface or unsevered estates in real property by directing that the tax be in rem against each estate in the property as a whole, and not against lesser dependent rights carved out of the whole.

To add to the confusion, the Supreme Court used the terms “mineral rights” when we believe it meant “mineral fee” or “mineral estate” in its opinion in Cassaday v. Consolidated Naval Stores Company, Fla., 119 So.2d 35 (1960) [which held original § 193.221, Florida Statutes (Chapter 57-150, Acts of 1957) unconstitutional on grounds not pertinent here] and in its opinion in Dickinson v. Davis, Fla., 224 So.2d 262 (1969) [which held re-enacted § 193.221, Florida Statutes (Chapter 63-355) constitutional]. Our conclusion is based upon the fact that only the mineral fee was involved in the two foregoing cases; and we, therefore, do not believe the Supreme Court by its use of such term intended to there rule that mineral leases were interests in or to real property (the fee) and thereby subject to ad valorem taxation under the statute without clear and specific legislation authorizing same. That question was not before the court. The term “mineral rights” is often used in reference to the “mineral estate” or “mineral fee” and, for example, the terms were interchangeably used by this court in P & N Investment Corp. v. Florida Ranchettes, Inc., Fla.App. (1st), 220 So.2d 451 (1969), and Kirk v. Smith, Fla.App. (1st), 253 So.2d 492 (1971). This becomes even more definite when we consider in para materia certain sections of Chapter 211, Florida Statutes.

§ 211.02, Florida Statutes, levies an excise tax upon the severing of oil or gas from the ground. Thus, the lessee of an oil, gas and minerals lease must pay this severance tax to the state as he removes the oil from the ground. Under this statute, 80% of the tax goes to the state for the use of the general revenue fund and the remaining 20% goes to the county in which the oil and gas is produced “for the use of the general revenue fund of the board of county commissioners.” ' The statute states that it is the intention of the Legislature that the county’s portion is “to compensate the county in which oil and gas is produced for the loss of ad valorem taxes by reason of the provision of this chapter, and to make it possible for the board of county commissioners of such county to provide the additional public services that will be required in a county where oil and gas are produced.” In addition, 211.13 provides:

“. . . The several [property appraisers] of this state and of the cities therein, when assessing the value of any land for ad valorem taxes, shall not increase the value thereof by reason of the fact that there may be oil and gas under the surface of such land, inasmuch as it is impossible under known valuation methods to accurately ascertain the true value of oil and gas in place and taxation thereof is more certainly accomplished after its capture or severance from the earth or water . . .”

In view of the foregoing and the ambiguities which we have alluded to in § 193.481, Florida Statutes, we at least have strong doubts that the Legislature specifically intended that oil, gas, and mineral leases be subject to ad valorem taxation. Appellant tax assessor evidently also had such doubts when the Legislature amended § 193.481(1), Florida Statutes in 1963 as the assessment here challenged was not made until 1973. If real estate or tangible personal property leases are to be made subject to ad valorem taxation, the authority therefor must be clear and not merely inferred. It is a cardinal rule that a statute imposing taxes must be clear and specific and will be liberally construed in favor of the taxpayer, State ex rel. Riverside Bank v. Green, Fla., 101 So.2d 805 (1958); Overstreet v. Ty-Tan, Inc., Fla., 48 So.2d 158 (1950).

We have considered the opinion of the District Court of Appeal, Second District, in Straughn v. Amoco Production Company, Fla.App.2d, 309 So.2d 39 (1975), and respectfully disagree therewith.

Pursuant to the provisions of Article V, Section 3(b)(3), Constitution of Florida, 1968 Revision, and the decision of the Florida Supreme Court in Zirin v. Charles Pfizer & Co., 128 So.2d 594 (Fla.1961), this Court does hereby determine and certify the decision in the above cause to be one which passes upon a question of great public interest.

MILLS and SMITH, JJ., concur.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    William J. HALL and Janet E. Hall, Appellants, v. Jack J. HOLTON and Zurich Insurance Company, Appellees.
    No. 75-587.
    District Court of Appeal of Florida, Second District.
    March 26, 1976.
    As Corrected on Denial of Rehearing April 28, 1976.

      John L. McFadyen, St. Petersburg, Kenneth M. Wilkinson, and John A. Lloyd, Jr., P. A., St. Petersburg, for appellants.
    Jeffrey S. O’Brien and C. S. Carrere of Harrison, Greene, Mann, Rowe & Stanton, St. Petersburg, for appellees.
   GRIMES, Judge.

This is an appeal from a summary judgment entered against a policeman who fell through the floor of an abandoned building while he was checking it out for vagrants.

Appellee, Holton, owned a building located in the path of the proposed extension of Interstate 4. The building had been abandoned and allowed to run down because it was going to be condemned by the Department of Transportation. On several occasions prior to the accident, Holton had been notified by the St. Petersburg Building Department to repair the floors because they were rotten. Holton did not make the repairs because the Department of Transportation told him that doing so would only increase the condemnation value of the property. Holton knew the building had often been the sleeping place of vagrants and other street people. He said he had caused the doors to be locked and the lower windows to be boarded up in an effort to try to keep these people out of the building.

In the dark early morning hours of the day the accident occurred, appellant, Hall, in the course of his duties as a police officer, went into the building through an unlocked rear door because he thought he had seen a light coming from a second story window. Finding nothing, he left but returned after it became light to further pursue his investigation. While on the second floor, the plaintiff fell through the floor and was injured.

The court entered summary judgment on two grounds:

(1) Holton violated no duty to Hall who occupied the status of an uninvited licensee; and

(2) The defense of assumption of risk was a complete bar to Hall’s recovery.

We shall discuss both of these points in turn.

Determining the legal status occupied by a policeman while on the land of another has always been troublesome. Most jurisdictions have held policemen to be licensees, primarily upon the theory that it would place too much of a burden on landowners to classify them as invitees. See 86 A.L.R.2d 1184. The Supreme Court of Florida adopted this principle by dictum in Fred Howland, Inc. v. Morris, 1940, 143 Fla. 189, 196 So. 472. Thereafter, in Romedy v. Johnston, Fla.App.1st, 1967, 193 So.2d 487, the First District Court of Appeal held that a fireman was a licensee and assumed that a policeman occupied the same category. Finally, in Adair v. The Island Club, Fla.App.2d, 1969, 225 So.2d 541, this court squarely held that a policeman was a licensee. Thus, there is no Florida case which has held that a policeman occupies any higher status than a licensee. In spite of the foregoing authorities, Hall argues that the more recent case of Wood v. Camp, Fla. 1973, 284 So.2d 691, had the effect of elevating his status to that of an invitee. We cannot accept this contention because there is no showing that he was either expressly or impliedly invited to Holton’s building. Since the issue is not before us, we express no opinion on whether Hall would have been an invitee under the rationale of Wood had the record reflected such an invitation.

Therefore, the court correctly categorized Hall as an uninvited licensee. But upon this record does this mean that he must suffer summary judgment against him as a matter of law? The duty owed to a licensee is to refrain from wanton negligence or wilful misconduct which would injure him, to refrain from intentionally exposing him to danger and to warn him of a defect or condition known to the landowner to be dangerous when such danger is not open to ordinary observation by the licensee. Post v. Lunney, Fla.1972, 261 So.2d 146. Even though Hall knew the building was run down, there were no holes in the floor, and the record does not sufficiently indicate that Hall should have known that the floor wouldn’t hold his weight. On the other hand, Holton had been specifically advised that the floors were rotten, but he had taken no steps to repair them. While Holton testified that he had directed the doors to be locked and bolted, Hall said he entered the building through an unlocked rear door. There were no signs posted to warn of the danger. Thus, it appears that there were issues of fact as to (1) whether there existed a dangerous condition known to the owner but not open to ordinary observation which placed upon him a duty to warn, and if so, (2) whether the owner adequately fulfilled this duty.

Our discussion of this issue could be terminated at this point were it not for the fact that in defining the duty owed to a licensee at least two Florida cases have added a caveat to the effect that before the duty to warn of a hidden danger arises, the presence of the licensee on the premises must be known by the owner. City of Boca Raton v. Mattef, Fla.1956, 91 So.2d 644; Romedy v. Johnston, supra. While such statements only constituted dicta in both cases, we would readily concede that a strict requirement of knowledge makes good sense in many circumstances. For example, a person who finds himself on another’s premises as a result of an emergency has usually been categorized as a licensee. Restatement of Torts 2d, § 330, comment e. Yet, if the landowner has no reason to believe he is coming, it would be an undue burden to require him to warn of all dangerous but hidden conditions on the property even assuming this could be accomplished. Logic would dictate the application of the same rule with respect to a policeman who happens to be crossing an owner’s premises while chasing a person who has just burglarized a neighboring home. Where, however, the circumstances are such that one might reasonably expect the presence of a licensee at the site of a hidden but dangerous condition on his premises, we think that it is not too much to ask that the landowner erect signs or take other suitable precautions to warn the licensee when he comes. Thus, we construe the requirement of knowledge of the licensee’s presence to include those circumstances where the owner could reasonably anticipate that the licensee would be on his premises. See 62 Am.Jur.2d, Premises Liability, § 84.

As related to the instant case, the police, themselves, had advised Holton that vagrants were making themselves at home in his unoccupied building. He also knew that for this reason the police were making periodic inspections of the premises. Thus, Holton has not satisfied his summary judgment burden of demonstrating that he had no reason to anticipate the presence of police officers in his building. Smith v. Avis Rent-A-Car System, Inc., Fla.App.2d, 1974, 297 So.2d 841.

Notwithstanding the foregoing analysis, if assumption of the risk is still an absolute bar to liability in Florida, Hol-ton makes a persuasive argument that the doctrine precludes recovery by Hall as a matter of law. The question posed is whether Florida law on the doctrine of assumption of risk has been changed by Hoffman v. Jones, Fla.1973, 280 So.2d 431. In that case, the Supreme Court observed that its decision would prompt an inquiry concerning its effect upon the assumption of risk doctrine but specifically declined to pass on the question until the issue was directly presented. Since that time, the question has been faced by the other three district courts of appeal. Two of them have held that assumption of risk merges with and becomes a phase of comparative negligence. Parker v. Maule Industries, Inc., Fla.App.1st, 1975, 321 So.2d 106; Rea v. Leadership Housing, Inc., Fla.App.4th, 1975, 312 So.2d 818. The Third District Court of Appeal took a contrary view in Dorta v. Blackburn, Fla.App.3d, 1974, 302 So.2d 450. The issue is likely to be soon resolved by the Supreme Court. In the meantime, we are persuaded to align this court with the position taken by the First and Fourth Districts.

The relationship between assumption of risk and contributory negligence has long been the subject of discussion and of no little controversy. In view of the impending Supreme Court determination of this issue, little purpose would be served here by a lengthy discussion of the problem. Therefore, we will content ourselves to cite with approval and to include some pertinent quotations from the case of Meistrich v. Casino Area Attractions, 1959, 31 N.J. 44, 155 A.2d 90. That case, which is the lead case for an annotation on the subject at 82 A.L.R.2d 1218, provides better than any other source we have found an incisive analysis of the development and the proper function of what has become known as the doctrine of assumption of risk.

In that case, the New Jersey court limited its discussion to those cases in which the injury or damage was neither intended nor expressly contracted to be non-actionable. The court then observed that in the area which was left, the term assumption of risk had two distinct meanings. Thus, the court stated:

“. . . In one sense (sometimes called its ‘primary’ sense), it is an alternate expression for the proposition that defendant was not negligent, i.e., either owed no duty or did not breach the duty owed. In its other sense (sometimes called ‘secondary’), assumption of risk is an affirmative defense to an established breach of duty. In its primary sense, it is accurate to say plaintiff assumed the risk whether or not he was ‘at fault,’ for the truth thereby expressed in alternate terminolgy is that defendant was not negligent. But in its secondary sense, i. e., as an'affirmative defense to an established breach of defendant’s duty, it is incorrect to say plaintiff assumed the risk whether or not he was at fault.”

In analyzing the distinction, the court first referred to the master-servant relationship which is the area in which the assumption of risk doctrine originally developed. If the servant chose to become employed in what was essentially an inherently dangerous type of work, he was said to have assumed the risk and could not recover if he were injured. The court pointed out that this was really another way of saying that the master was not negligent and that before the servant could recover he had to prove that the injury was caused by a risk other than the one inherent in a well-run establishment, to wit: that the master was negligent. The court called this assumption of risk in its primary sense. Another example given is where a passenger in a common carrier is thrown by the movement of the vehicle. If the movement is not unusual for that type of vehicle, it may be said that the passenger assumed the risk (in the primary sense) but, in fact, it is more accurate to say that under those circumstances the common carrier was not negligent. If, on the other hand, the passenger can prove an unusual (negligently created) jerk or jar, he will have proved negligence on the part of the defendant and the simple fact that he chose to ride on the vehicle should not bar his recovery.

The New Jersey court said that assumption of risk in its secondary sense was a mere phase of contributory negligence, holding that the total issue was whether a reasonably prudent man in the exercise of due care (a) would have incurred the known risk, and (b) if he would, whether such a person in light of all of the circumstances, including the appreciated risk, would have conducted himself in the manner in which the plaintiff acted. Thus, the court stated that there was no reason to consider assumption of the risk in its secondary sense as something distinct from contributory negligence, and where the thought is projected in that aspect, the terminology of assumption of risk should not even be used. In summary, the court stated:

“In short, each case must be analyzed to determine whether the pivotal question goes to defendant’s negligence or to plaintiff’s contributory negligence. If the former, then what has been called assumption of risk is only a denial of breach of duty and the burden of proof is plaintiff’s. If on the other hand assumption of risk is advanced to defeat a recovery despite a demonstrated breach of defendant’s duty, then it constitutes the affirmative defense of contributory negligence and the burden of proof is upon defendant.”

In the face of the long-established law in Florida on assumption of risk, we would not be in a position to embrace the reasoning of the New Jersey court absent Hoffman v. Jones. In many respects, Hoffman v. Jones, supra, was a social decision rather than a legal decision. It recognized the harshness of contributory negligence and concluded that a more just determination of controversies dictated the adoption of comparative negligence whereby the injured party is penalized only to the extent of his own fault. This decision points the way to the same conclusion with respect to assumption of risk. Since the circumstances which comprise contributory negligence are so similar to those which have heretofore been characterized as assumption of the risk in its secondary sense, it would be an anomaly to now hold that assumption of the risk is a total bar to recovery. If what Meistrich refers to assumption of the risk in its primary sense is now considered only in relationship to the breach of duty on the part of the defendant (to avoid confusion it would be preferable no longer to use the term, assumption of risk, in those words), there is no need for a separate affirmative defense. Thus, that defense which used to be known as assumption of risk in its secondary sense now merges with comparative negligence, and in those instances where reasonable men can differ, the finder of fact is entitled to consider all of the facts and circumstances in order to determine the extent to which the plaintiff may be at fault.

Since we hold that assumption of risk merges with comparative negligence and since the record does not affirmatively demonstrate that Hall was 100% negligent, the court erred in barring Hall from recovery as a matter of law on the theory of assumption of risk.

The summary judgment is reversed, and the case is remanded for further proceedings consistent herewith.

McNULTY, C. J., and SCHEB, J., concur.


author: MILLS, Judge.

text:
    David ATLAND and Stephen Wayne Johns, Appellants (Defendants), v. STATE of Florida, Appellee (State).
    No. Y-396.
    District Court of Appeal of Florida, First District.
    March 5, 1976.
    Rehearing Denied April 27, 1976.

      Richard W. Ervin, III, Public Defender; Ronald A. Mowrey, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for appel-lee.
   MILLS, Judge.

By way of petition for writ of habeas corpus and as provided by Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967), the defendants are provided a full appellate review.

The defendants pled nolo contendere to five charges of possession of stolen property, reserving the right to appeal the denial of their motion to suppress evidence.

The issue before us is whether the trial court erred in the denial of the motion to suppress.

While on routine patrol, two Jefferson County deputies drove down a newly cut dirt road in a heavily wooded area. After driving a short distance, they entered a recently cleared area where they saw a number of partially disassembled late model cars with no evidence of license tags.

While walking about the clearing to check the cars for tags and serial numbers, they noticed large amounts of new and used atuomotive parts, tools, tires, torches, gauges, transmissions and other goods, scattered about the clearing and in the cars.

Although it was determined that the cars were not stolen, one of the deputies recalled that several of the items that he saw were similar to those recently reported to the sheriff as stolen. He called the sheriff who brought individuals to the scene who had reported similar items stolen. The individuals identified the goods as property stolen from them. Without a warrant, the sheriff arrested the defendants and seized the goods.

The defendants contend that although the goods were in an open filed, they were constitutionally protected, and that the search was made without probable cause and exigent circumstances.

Fourth Amendment protection to persons, houses, papers, and effects does not extend to an open field. Hester v. United States, 265 U.S, 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); Phillips v. State, 177 So.2d 243 (Fla.App. 1st, 1965). The goods which were ultimately seized were in an open field or clearing exposed to and accessible to the public. Fourth Amendment protection was not afforded the defendants.

When an officer, engaged in performing his duties, sees goods that he has probable cause to believe are stolen, he may seize the goods without a warrant and the goods are admissible in evidence. It is not a search to observe and to seize goods placed where they may be seen by an officer where he has a legal right to be. State v. Parnell, 221 So.2d 129 (Fla.1969). In the case before us, the deputies, while performing their duties, saw goods readily observable which they had probable cause to believe were stolen. Under the circumstances a warrant was unnecessary, and the evidence seized was admissible in evidence.

The trial court properly denied the defendants’ motion to suppress.

Affirmed.

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


author: BARKDULL, THOMAS E, Associate Judge.

text:
    Baron H. ASHER, Appellant, v. Francis P. MONACO, and Jacksonville Sharks, Inc., Appellees.
    No. Y-466.
    District Court of Appeal of Florida, First District.
    March 16, 1976.
    Rehearing Denied April 27, 1976.
    Paul R. Stern, Daytona Beach, for appellant.
    John R. Godbee, Jr., Deland, for appel-lees.
   BARKDULL, THOMAS E, Associate Judge.

By this action, we are called upon to review a final summary judgment in favor of the appellant (who was the plaintiff in the trial court) awarding him $82,428.36 against Jacksonville Sharks, Inc., for alleged wrongful termination of an employment contract as a football coach for the Jacksonville Sharks, Inc., of the World Football League.

The plaintiff assigns error in the failure to enter a judgment against the appellee, Francis P. Monaco (defendant in the trial court), contending that the contract was originally with Monaco and, even though assigned to the corporation, Monaco remained secondarily liable for the compensation. The Jacksonville Sharks have cross-assigned error and urge that the trial judge erred in failing to find that the contract was one terminable at will by either of the parties.

The contract was prepared, in part, by an attorney for Monaco and also by Asher, who is a graduate of an accredited law school. The contract, in pertinent parts, reads as follows:

“2. TERM. Subject to the provisions of the Renewal Options on the part of either Party hereto, as hereinafter set-out, the term of the Contract shall begin on the date first set out above and shall terminate One (1) Year from said date.”
“6. OPTION TO RENEW. Either PARTY to this Contract shall have the option of renewing this contract under all the terms as provided for herein for an additional year commencing January 20, 1975, upon giving to the other party hereto thrity (30) days notice before the expiration hereof in writing of his or their intention to renew for the year commencing January 20, 1975. At the end of the first renewal year, either Party hereto shall have the right to or option to renew this contract under all the terms as provided for herein for a third year commencing January 20, 1976, upon giving to the other Party hereto thirty (30) days notice before the expiration of the first renewal year of this contract, the intention of these renewal options being to give Head Coach at least three (3) years, if he so desires, to fulfill the task of building a winning team for Employer, and to give to Employer the sole right to Head Coaches services of a professional football nature for a three year period if Employer so desires. * * * Head Coach shall be entitled to receive from Owner and Owner shall pay to Head Coach all unpaid salary that would have been paid to Head Coach for the entire three year period, and Head Coach shall be entitled to receive any other benefits heretofore or hereinafter set out just as if Head Coach had actually completed three full years as Head Coach for Owner, including the exercise of all options granted to Head Coach herein. In such event, Head Coach shall be entitled immediately to seek and accept any other employment of any anture whatsoever without diminishing his rights herein. It is expressly understood and agreed by the parties hereto that during the term of this contract and any renewals thereof, Head Coach shall be answerable directly to Francis P. Monaco only or his successor as Managing Owners.”

We hold, first, that the contract was for a set period of one year, with the option at the consent of both parties to continue the contract for an additional three years. The appellee, Monaco, has urged that there was a novation and, therefore, he was released from any liability on the original employment agreement. The record indicates that Asher was employed in January of 1974 by Monaco, pursuant to an oral agreement. Between January and May he received his compensation in the form of checks drawn on a corporate account registered in the name of the Florida Sharks, Inc. In May, the parties executed the contract, parts of which are quoted above, and back-dated it to January, 1974. On the same day they executed an assignment to the Jacksonville Sharks, Inc. It is this assignment which Monaco contends constituted a novation. It was executed by all the concerned parties and reads as follows :

ASSIGNMENT OF EMPLOYMENT CONTRACT
“For value received, Francis P. Monaco, by and with the consent and agreement of Baron H. (Bud) Asher, for themselves, their heirs, personal representatives and assigns, hereby transfers and assigns the above and foregoing Employment Contract to Jacksonville Sharks, Inc., a Florida Corporation, and said Corporation by a unanimous vote of the Board of Directors has authorized the said Corporation to accept said Employment Contract, and hereby conven-ants and agrees that Paragraph Nine (9) hereof, is a Contract by and among the undersigned made for the purpose of a Contract made for the benefit of a third party, to wit: Francis P. Monaco, his heirs, personal representatives and assigns, this _ day of _, A.D. 1974.”

We find that the terms of the assignment are ambiguous and the responsibilities of the respective parties under the employment agreement, after the assignment, are confused. Therefore, we find it was error for the trial judge to enter a summary judgment holding that there was a release of liability as to Monaco and this matter should be returned to the trial court for a trial on the issues to determine the intention of the parties at the time of the execution of the agreements. Rock-Weld Corporation of Puerto Rico v. Rock-Weld Equipment Corp. of Florida, Fla.App.1966, 184 So.2d 186; Commercial Trading Company, Inc. v. Zero Food Storage, Inc., Fla.App.1969, 199 So.2d 109; Westchester Fire Insurance Company v. In-Sink-Erator, Fla.App.1971, 252 So.2d 856; Morton v. Morton, Fla.App. 1975, 307 So.2d 835.

As previously noted, we construe the employment agreement to be for a fixed term of one year. Therefore, any ultimate liability thereby fixed upon either the corporation or Monaco or both should be limited to damages recoverable for breach of the employment contract during the first year.

Reversed and remanded, with directions.

RAWLS, Acting C. J., and MELVIN, WOODROW M., Associate Judge, concur.


text:
    Norman O. REESE, Appellant (husband), v. Carol H. REESE, Appellee (wife).
    No. W-199.
    District Court of Appeal of Florida, First District.
    March 19, 1976.
    Rehearing Denied April 27, 1976.

      Arthur T. Boone and Gordon H. Lee, Jacksonville, for appellant.
    Keith M. Deal and Gregory K. Crews, Jacksonville, for appellee.
   MILLS, Judge.

The husband appeals from an order denying his petition for modification of a final judgment entered in a divorce case.

The issue is whether the trial court erred in refusing to set aside the permanent alimony awarded to the wife by the judgment.

The judgment, which was entered in 1967, adopted the terms of a stipulation and agreement which’ provided that the husband would pay alimony of $600.00 a month to the wife for life. At that time, the husband had a taxable income of $40,000.00 a year. The wife was unemployed. The husband was required to pay $250.00 a month for the support of a minor son. In addition, the wife was made irrevocable beneficiary of the proceeds from a pension plan provided by the husband’s professional association.

Seven years later, at the modification hearing, the evidence disclosed that the husband’s taxable income had increased to $46,000.00, although he was suffering from hypertension which required that he reduce the number of hours he worked. The wife was employed and earned a net of $160.09 a week for ten months of the year. Additional education was required for her to maintain this earning capacity. She was in good health and had a master’s degree in speech therapy. The son, for whom the husband was required to pay $3,000 a year support, had reached majority and become self-supporting. The wife agreed that she be eliminated as the irrevocable beneficiary of the husband’s pension plan. The wife testified, without contradiction, that she and the husband entered into the stipulation and agreement with the understanding that it would be necessary for the wife to become employed in order to supplement the permanent alimony.

Under these circumstances, the trial court did not abuse its discretion in denying the petition for modification and in refusing to set aside the alimony payable to the wife. The husband did not show a substantial change in his circumstances. In fact, the evidence showed the husband’s financial condition had improved. Although the wife’s financial condition had also improved, this was contemplated by the parties at the time the stipulation and agreement was signed by them.

AFFIRMED.

BOYER, C. J., and MELVIN, WOODROW M., Associate Judge, concur.


author: BOYER, Chief Judge.

text:
    Thomas Jefferson TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. Y-254.
    District Court of Appeal of Florida, First District.
    April 13, 1976.
    Bartley K. Vickers of Mahon, Farley & Vickers, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Appellant, defendant below, appeals his conviction of breaking and entering with intent to commit a misdemeanor (petit larceny), and the refusal of the trial court to allow defense counsel in his closing argument to relate his version of the facts to the instructions of law anticipated to be given by the court.

The evidence at trial revealed that on February 8, 1975, Emily Sue Grimsley returned to her trailer home in Hillard, Florida, and noticed that her trailer had been broken into and that a television, tape deck, and two speakers were missing. The Nassau County Sheriffs Office was contacted and dispatched three deputies to the scene. The investigation resulted in the discovery of some footprints near the trailer leading to a little marshy area where a television set, stereo, and two speakers were found. The deputies secreted themselves and observed the scene for approximately an hour and one-half, at which time they saw a car being parked across the road from the marshy area where the property was found. Two persons got out of the car but returned after a few moments. Deputy Ellis, who was the only officer on the scene at the time, was unable to identify the two persons or state whether they were male or female. After the two persons got back into the car, it remained in place for a minute or two, then pulled off. The officers began pursuit. They then observed items being thrown out of the window of the car. At about the same time, the officers turned on their blue lights in an attempt to stop the vehicle. From the time that the officers turned on their blue lights, the vehicle which contained appellant and three companions traveled between one-fourth to one-half mile and reached speeds in excess of 70 miles per hour.

After the vehicle was stopped, the deputies observed two males and two females in the car. Appellant, who was the driver, was wearing trousers which had dry cuffs while the other male occupant of the car had trousers with wet cuffs. Officer Ellis stated that one could not walk in the marshy area where the stolen property was without getting one’s pants legs wet. The deputies recovered the items which had been thrown out of the vehicle which were identified as a stereo speaker, a stereo, and television set. Another stereo speaker was found in the backseat of the vehicle.

After denial of his motion for directed verdict as to the breaking1 and entering charge, appellant testified. He claimed that on the night in question, Terry Crider appeared at appellant’s home and asked him to drive Crider to Hillard. On the way, Crider asked appellant to pull off the road. Appellant surmised that Crider had to respond to a call of nature. When Cri-der got out of the car, walked over to the marshy area, and began bringing the items of property back to the car, appellant claims that he told Crider that he wanted no part of it. As appellant pulled off, Cri-der started throwing the property out of the window. Appellant further testified that when he saw the police lights behind him, he pulled off the road and stopped, at which point he was arrested.

The facts in this case are clearly distinguishable from those in our recent case of Palmer v. State, Fla.App.1st 1975, 323 So.2d 612. In that case, the inference based upon the unexplained possession of recently stolen goods was found to be applicable because of the visibility of stolen goods, the defendant’s control of the car while driving, and the presence of other evidence in the record that defendant was, and had been, acting in concert with his companions. In the instant case, the evidence is entirely consistent with appellant’s version of events. He claims that he did not have anything to do with attaining the stolen property. The testimony of Deputy Ellis supports that assertion, in light of the fact that the stolen property was in a marshy area, and anyone retrieving the property would have dampened his (or her) clothes. Deputy Ellis further testified that appellant’s pants legs were dry while those of the other male occupant of the car were wet. Finally, the record fails to indicate that appellant in any manner acted in concert with his companions.

Also distinguishable is State v. Young, Sup.Ct.Fla.1968, 217 So.2d 567, cert. den. 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101. In the Young decision, as in Palmer v. State, supra, the issue was whether the trial court’s instruction to the jury concerning the inference respecting the unexplained possession of recently stolen goods was proper. The court in Young approached the problem in the light of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In the Young case, even the District Court decision, which was quashed by the Forida Supreme Court, recognized that the evidence was sufficient to sustain the conviction and support the presumption. (See Young v. State, Fla.App.4th 1967, 203 So.2d 650, 652) In the case sub judice, our examination of the record clearly reveals that the evidence was not so sufficient. The following language in Harrison v. State, Fla. App.1st 1958, 104 So.2d 391, is particularly appropriate:

“When circumstantial evidence is relied upon for conviction in a criminal case, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused, and no one else, committed the offense. If the facts in proof are equally consistent with some other rational conclusion than that of guilt, the evidence is insufficient. If the evidence leaves it indifferent as to which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be. It is the actual exclusion of each other reasonable hypothesis 'which clothes mere circumstances with the force of proof. Circumstantial evidence which leaves nothing more than a suspicion that the accused committed a crime is not sufficient to sustain a conviction.” (104 So.2d at 394-395) (Emphasis the Courts)

Also, here apropos is the observation by the author of the Harrison opinion:

“We are fully aware of the burden which our system of jurisprudence places upon those charged with enforcement of the law. In the absence of positive evidence resort must be frequently made to circumstances. When evidence of this kind is relied upon for conviction, it should be acted upon with extreme caution. Our responsibility in such cases — • human liberty being involved — is doubly great. The cloak of liberty and freedom is far too precious a garment to be trampled in the dust of mere inference compounded. As was stated in Adams v. State, this court is fully cognizant of the rule that conviction may be had upon circumstantial evidence alone, and although the State’s burden does not extend to an absolute metaphysical and demonstrative certainty in proving a crime by circumstantial evidence, it must be sufficient as to every essential element of the crime charged to meet the requirement of the rule as set forth above. When measured in a light most favorable to the State, the evidence adduced in this case is not sufficient to close the gap to the reasonable hypotheses of innocence; and is therefore insufficient to sustain conviction.” (104 So.2d 391 at 395) (footnotes omitted)

While we find that we must reverse appellant’s conviction on the basis of insufficiency of the evidence, we also deem it desirable for the guidance of the Bench and Bar alike to comment on the second point raised by appellant. In his closing argument, appellant’s counsel attempted to argue application of the facts of the’case to the law to be charged by the court. As he was telling the jury what the trial court would instruct them concerning circumstantial evidence, the prosecutor objected on the ground that counsel should not lecture the jury on what the law is. The trial court sustained the objection. The state did not contend that the defense attorney had misstated the applicable law. While it is not the prerogative of an attorney in his closing arguments to instruct the jury on the law, it is entirely appropriate for an attorney in closing argument to relate the applicable law to the facts of the case. One of the purposes in having a conference on jury instructions before closing arguments is to allow the attorneys to be aware of the law so that they will be able to properly relate the law to the facts in their argument. An attorney should therefore be allowed to explain to the jury those instructions which are relevant to his theory of the case and to emphasize any portion of the jury charge that he feels to be pertinent. Certainly, no attorney should misstate the law, and should he do so then opposing counsel has the right to (and should) object.

Because the evidence was insufficient to support appellant’s conviction, we reverse his conviction and order him discharged.

Reversed with directions.

RAWLS and McCORD, JJ., concur.


author: PER CURIAM. BOYER, Chief Judge MILLS, Judge

text:
    E. W. MORING, Appellant, v. G. Ulmer MILLER et al., Appellees.
    No. X-109.
    District Court of Appeal of Florida, First District.
    March 30, 1976.
    Rehearing Denied April 27, 1976.

      Grover C. Robinson, Jr., of Robinson & Robinson, Pensacola, for appellant.
    J. Klein Wigginton, of McClure & Wig-ginton, Tallahassee, and Henry C. Hamilton, Monticello, for appellees.
   PER CURIAM.

Although it is impractical to recite in detail the complicated factual situation revealed by the voluminous record on appeal, a brief narration of the pertinent facts is necessary.

Appellant, plaintiff below, developed a new variety of pecan tree and contracted with Simpson Nursery Company (of which appellee Stuart C. Simpson was a partner) in 1959, whereby Simpson was to obtain and pay for the patent on the plant as well as develop, propagate, produce, and market the variety. Appellant received $500 for the patent right and, by agreement, was to receive 25 cents per tree for each tree sold by appellees during the first 10 years of the term of the patent, and 10 cents per tree royalty for each tree sold during the remainder of the patent term. After the patent was obtained, appellant executed an assignment of the patent rights to Simpson, “for its own use and behoof, and for its legal representatives and assigns.” In 1963, Simpson sold its assets, including its contract with appellant, and the patent relating to the pecan tree developed by appellant (the Pensacola Cluster) to A. L. Dickerson, the successor owner of Simpson Nursery, Inc. and Gro-Plant Industries, Inc. After appellant became aware of the assignment, he continued to receive and accept reports concerning the sale of the Pensacola Cluster and royalty payments from the successor assignees. Appellant finally became dissatisfied with the arrangement, feeling that the number of Pensacola Cluster pecan trees actually sold was greater than the number of trees upon which his royalty payments were based; whereupon he filed his complaint in 1967, alleging that appellees had breached their contract with him by failing to properly account for and pay to him the royalties due, and in failing to diligently advertise and promote the sale of nursery stock as required by the contract. Appellant also prayed for an accounting. A non-jury trial held on appellant’s prayer for an accounting was held in 1972 and resulted in an order denying the right to an accounting. In 1974, a jury trial was held on the issue of breach of contract. The final judgment, in which appellant was awarded damages totaling less than $2,000 plus interest, reflected a finding by the trial court that the liability of Stuart C. Simpson should be limited to the period of time prior to October 1, 1963, and a directed verdict limiting the jury to a consideration of the damages due appellant from appellees Miller and Simpson as trustees under the reorganization of Gro-Plant Industries, Inc., for the growing season of 1971-72.

In its order of October 8, 1973, the trial court ruled that appellee Stuart C. Simpson would not be liable under his agreement with appellant subsequent to the date of the sale of assets to Alvin L. Dickerson (October 1, 1963). In so ruling, the trial court erred. Whether or not Simpson’s contract with appellant was assignable, such assignment did not relieve Simpson of liability under the original contract with appellant. (6 Am.Jur.2d 293, “Assignments”, Section 110; 6A CJS Assignments § 97, p. 753.) Appellees claim that there was a complete novation when appellant became aware of the assignments of his agreement, and continued to receive and accept reports and royalty payments from the successor assignees. However, the law is well settled that in order to constitute a novation, the parties must agree to a contract which is intended to take the place of a prior obligation. (23 Fla.Jur. 486, “Novation”, Section 4) In general terms, mere acceptance of the obligation of the assignee without any intention to relieve the original debtor is not, in and of itself, sufficient to constitute a novation. (61 ALR2d 755 (1958)) There is no indication in the record that the parties intended that appellee Simpson be relieved from liability under the original contract. In the absence of such evidence, as a matter of law, there was no novation. (See Evans v. Borkowski, Fla.App.2d 1962, 139 So.2d 472))

Regarding the trial court having directed a verdict as to the limit of recovery for the growing seasons 1963 through 1974 (with the exception of the year 1971-72), there was no competent, substantial evidence upon which the jury could base a verdict for such period. Any verdict rendered by the jury for such period would necessarily be based upon speculation and conjecture. The trial court’s ruling as to this point was correct.

The other points raised by appellant have been carefully considered and are found to be without merit.

Accordingly, we reverse for a new trial as to the liability of the estate of Stuart C. Simpson with the same directions as were previously applied by the trial judge unless competent, substantial evidence is introduced at the new trial as to the damages for the periods in question.

McCORD, J., concurs.

BOYER, C. J., concurs in part and dissents in part.

MILLS, J., dissents.

BOYER, Chief Judge

(concurring in part and dissenting in part).

I concur that the learned trial judge erred in limiting, the liability of Stuart C. Simpson, individually, to the period of time prior to October 1, 1963. However, in my view, the learned trial judge also erred when he refused to permit the jury to assess damages for failure to pay royalties for the growing seasons between 1964 and 1974, except for the season of 1971-72.

Apparently, the court found that appellant had presented no competent and substantial evidence to establish the amount claimed by him, other than the actual findings agreed to by appellees. Although the evidence in support of appellant’s claim was not overwhelming, it was sufficient to require submission to the jury. The record reveals that appellees had misplaced certain portions of their business records, and the numerous business documents that were available to appellant were, to say the least, confusing. However, the record reflects sufficient testimony from which a jury could have found damages in a far greater amount than that contained in the trial court’s directed verdict. Specifically, James Estes, Franklin County Extension Director and appellant’s son-in-law, testified that in 1968, while ón a visit to a nursery which carried the Pensacola Cluster variety, one of appellee’s salesmen informed him that the Cluster was selling extremely well, and that one million of the Clusters had been sold in Texas and Mississippi and 16,000 had- recently been sold in the state of New Mexico. While ap-pellees have attempted to downgrade this testimony as mere puffing by a salesman, the fact remains that a jury might well have accepted it as true. Thus, the trial court should not have entered its order granting appellees’ motion for directed verdict, where there existed conflicting evidence from which a jury composed of reasonable persons might have arrived at a different result than the trial court. (See Mathis v. Lambert, FlaApp.3d 1973, 274 So.2d 601)

I further concur in affirmance as to all points raised by appellant except as to the point discussed in the majority opinion and as to the point discussed in the foregoing paragraph hereof.

MILLS, Judge

(dissenting):

I dissent. I would affirm the judgment in all respects.


author: RAWLS, Acting Chief Judge.

text:
    Frank J. ROMANO, Appellant, v. George PANDAPAS, Appellee.
    No. X-405.
    District Court of Appeal of Florida, First District.
    March 23, 1976.
    Rehearing Denied April 27, 1976.

      Sam Spector and Cynthia S. Tunnicliff, Tallahassee, for appellant.
    David A. Monaco, of Raymond, Wilson, Karl, Conway & Barr, Daytona Beach, for appellee.
   RAWLS, Acting Chief Judge.

The primary issue in this appeal is whether appellant Romano (buyer) is entitled to specific performance pursuant to a real estate contract entered into with ap-pellee Pandapas (seller).

The buyer contends that the trial court erred by entering summary judgment for the seller; that it should have entered summary judgment in his behalf, or at least found that a material issue of fact is present.

In December of 1972, Romano, who lived in Illinois, contacted a real estate agent in Daytona Beach about purchasing a parcel of land that adjoined land he owned in Volusia County, Florida. The realtor advised Romano that the subject property had been on the market two months ago at thirty-two hundred and fifty dollars per acre. The realtor then contacted Panda-pas, who was vacationing with his wife and children at Sun Valley, Idaho, by telephone and advised that he had a potential buyer for the property. Pandapas asked the realtor what he thought it was worth, and the reply was “thirty-two fifty” an acre. Pandapas then told the realtor to “get a contract, see how it looked.” The realtor prepared an option contract and sent it to Romano. Upon examining the option contract forwarded by the realtor, Romano discovered that it included not only the property of Pandapas but also property owned by Romano. The contract ff was redrafted by Romano, who executed same, and forwarded it to the realtor. The realtor then called Pandapas, who was still in Idaho, Pandapas telephoned his attorney, Paul E. Raymond, in Daytona Beach, asked him to examine the contract, and asked Raymond to sign it as “his attorney or agent”. Raymond examined the contract, made some changes by adding to it certain restrictions and exceptions contained in the title, signed it “George Pan-dapas by Paul Raymond his attorney and agent”, and returned it to the realtor.

On New Year’s Eve or New Year’s Day (1973), Pandapas, who was still vacationing at Sun Valley with his family, told his wife that he had agreed to sell the subject property, and she at this time did not approve or disapprove. Pandapas returned to Daytona Beach on January 5, 1973. Pandapas testified that on January 8, 1973, he received a telephone call from a Mr. Townsend, a realtor, and that the following conversation transpired:

"... since Mr. White is going to buy Mr. Romano’s property, they may be interested in mine and I sighed and said, ‘It’s tough, you will have to speak to Mr. Romano. That property is under contract.’ And I asked him at that time what Mr. Romano is selling his property for and he said something in the vicinity of nine thousand dollars an acre.”

In continuing his testimony, Pandapas stated:

“That night, when I talked to my wife, I told her that I had had a kick in the teeth that day. I found the property which I had contracted to sell for thirty-two hundred an acre might be worth considerably more and I told her what Jimmy Townsend told me whereupon she hit the roof, said she would not go along with it, and threatened to call her lawyer and find out what her position is.
“Whereupon, I asked for a copy of the option contract to find out how somehow I could get out of it because it put me in a very embarrassing situation.
“After considerable thinking, I asked Mr. Raymond if there is someway we could notify Mr. Romano that I can’t go through with the transaction.
“That is when the telegram went out to Mr. Romano.”

The option contract provided February 21, 1973, as the closing date. Romano and his attorney met with Raymond (Pandapas’ attorney) on that date in Daytona Beach and discussed closing the transaction. Raymond advised Romano that Mrs. Pan-dapas would not join in the conveyance, but that Mr. Pandapas would convey whatever interest he had. Romano took the position that he was entitled to a conveyance from Pandapas with abatement in the purchase price for Mrs. Pandapas’ inchoate dower rights. Negotiations between the parties continued for several weeks thereafter, but no accord was reached since Romano insisted that he was legally entitled to abatement and Pandapas refused to convey for any sum less than the contract terms. In May of 1973, Romano instituted the instant suit seeking specific performance. Shortly thereafter, a legislative enactment repealed the statutory provision which provided for inchoate dower effective October 1, 1973. Romano then advised Pandapas that he would accept his conveyance without abatement, which offer was refused on the grounds that the time for performance of the contract had expired. Romano subsequently amended his complaint removing his objection to Pan-dapas’ conveyance without the wife’s join-der. Summary judgment was later entered by the trial court in favor of Pandapas.

In Knox v. Spratt, 23 Fla. 64, 6 So. 924 (1887), the Supreme Court stated:

“The doctrine that, in case the vendor is unable to comply with the contract by reason of not having legal title to all the land sold, yet that the vendee is entitled to a specific performance of the contract for such as is in the power of the vendor to convey, with compensation for the residue, is undoubted.” (emphasis supplied)

This doctrine is reiterated in Fisher v. Miller, 92 Fla. 48, 109 So. 257 (1926), wherein the wife’s inchoate dower interest was the primary question. The Supreme Court, in quoting extensively from Pome-roy’s Specific Performance, adopted the view that specific performance with abatement was available to a vendee without notice that the vendor is married. In so holding, the court unequivocally stated: “The marriage status should not be used as a shield to prevent the enforcement of the just obligation of a man who presents no other excuse to justify his nonperformance.” (emphasis supplied) Paradise Pools v. Genauer, 104 So.2d 860 (Fla.App.3d 1958), is squarely in point. There, the appellate court, citing Fisher, supra, held that the vendee was entitled to specific performance of an option contract with the vendor with an abatement of the purchase price in the absence of a release of the wife’s dower, if the vendee was not charged with notice or knowledge of the marital status of the vendor.

Romano’s complaint alleged that he had no knowledge that Pandapas was married at the time the option agreement was entered into. Pandapas answered that he was without knowledge as to this allegation and affirmatively alleged that Romano had a duty to inquire as to his marital status. Depositions of the parties, attorney Raymond, and an affidavit of the realtor wholly fail to prove any knowledge on the part of Romano as to Pandapas being married. The initial agreement was prepared by the realtor, forwarded to Romano at his office in Chicago, and examined by Raymond. Although Raymond was fully aware that his client Pandapas was married, the initial contract was in the sole name of Pandapas, as seller. Romano revised the contract, primarily as to description, and forwarded same back to the realtor together with the agreed upon earnest money. Prior to executing the contract, Raymond added certain title exceptions which were subsequently initialed by Romano. The final contract did not mention Pandapas’ marital status. Pandapas testified in his deposition: “I asked Mr. Raymond to execute the agreement in my behalf, feeling confident when the time came to close a deal, I would persuade my wife to provide the necessary signature.” He further testified that prior to this instance, his wife had never refused to sign a deed or contract and that the reason for her refusal to sign the instant contract was “simply that she didn’t want me to sell the land at that price.”

A review of this record leads one to the inescapable conclusion that Pandapas’ refusal to convey to Romano was founded solely upon his belief that the sales price was far below what he might have been able to obtain. This conclusion is buttressed by the actions of Pandapas in asking Raymond to find some way that he could refuse to go through with the transaction, which resulted in the telegram sent to Romano. The hard fact that screams from this record is that Pandapas has used his marital status as a shield to prevent the enforcement of his just obligation.

Pandapas argues that the matter of abatement has utterly no relevance to the present facts since Romano amended his complaint and dropped the demand of abatement. This argument fails for three reasons: 1) At the time suit was instituted, Romano, as a matter of law, was entitled to specific performance from Panda-pas with abatement; 2) the well established rule as stated in Goodfriend v. Druck, 289 So.2d 710 (Fla.1974), was applicable; and 3) the amended complaint continued to claim abatement “if Defendant dies during the pendency of this litigation, Plaintiff demands an abatement in the purchase price equal to the incohate dower of Defendant’s surviving spouse.” Also urged by Pandapas is the following provision of the option contract pertaining to title to the property if found uninsurable: “Seller agrees to use diligence to make it insurable and shall have 45 days in which to do so, or at the written request of purchaser, seller shall deliver title in its existing condition.” Pandapas contends that this provision relieved him of having to convey his interest with abatement.

As stated above, this record is replete with evidence that Pandapas not only failed to use diligence to make the title insurable, but to the contrary, he exerted every effort available to him to escape his just obligation. Pandapas knew he was married at the time he entered into the contract; Pandapas knew that his wife would be required to join in the conveyance, and he thought that she would so join. Equity and good conscience entitled Romano to specific performance of the subject property.

REVERSED with directions to enter judgment in favor of appellant Romano for specific performance.

MILLS and SMITH, JJ., concur.

      . Pandapas had listed the property prior to December, 1972, with other brokers for approximately three thousand dollars per acre.

      . The following telegram prepared by Raymond over the signature of his client, Pan-dapas, was sent to Romano on January lb, viz: “Re proported [sic] agreement dated December 21, 1&72 I conclude that it is void and without effect due to lack of mutuality and consideration and also for other reasons. George I. Pandapas.”

      . The Supreme Court stated: “ . . . an appellate court, in reviewing a judgment on direct appeal, will dispose of the case according to the law prevailing at the time of the appellate disposition.”


author: PER CURIAM.

text:
    Peter CASTELLANOS and Leyda Castellanos, Appellants, v. HIALEAH-MIAMI SPRINGS FIRST STATE BANK, a Florida Banking Corporation, Appellee.
    No. 75-456.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Rehearing Denied April 27, 1976.
    A. M. Schwitalla, Miami, for appellants.
    Taylor, Brion, Buker, Hames & Greene and Arnaldo Velez, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellants, defendants and counterplain-tiffs below, appeal a final judgment of the trial court in favor of appellee, plaintiff and counterdefendant below. Also, appellants appeal from an order of the trial court denying their motion for a rehearing.

On January 24, 1975, after a nonjury trial, the trial court entered a final judgment in favor of appellee on its complaint for damages and against appellants on their counterclaims. Appellee’s complaint was predicated upon appellants’ failure to pay an installment when due on a security agreement — retail installment sale contract.

It is a well settled principle that a judgment of the trial court is generally presumed to be correct. Correlatively, the one who asserts error on appeal has the burden of showing it. Such burden can only be met by making reversible error clearly, definitely, and fully to appear. Failure to meet the burden impels the conclusion that there is no error in the record and the judgment appealed must be affirmed. See Leggett v. Seaboard Coast Line R. Co., Fla.App.1969, 221 So.2d 16; Garner v. Gulf Federal Sav. & Loan Asso., Fla.App.1969, 218 So.2d 192, and 2 Fla. Jur., Appeals § 316 and the cases cited therein.

We have considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final judgment and order appealed are affirmed.

Affirmed.


text:
    C. T. BECKHAM and Henry Brilliant, Appellants (Defendants), v. Hugh HOLBORN, Appellee, Cross Appellant (Plaintiff), v. TRANSLINEAR, INC., a corporation, Cross Appellee (Defendant).
    No. X-368.
    District Court of Appeal of Florida, First District.
    April 2, 1976.
    Rehearing Denied April 27, 1976.
    C. Wayne Alford and John F. Fannin of Milam & Wilbur, Jacksonville, for appellants.
    David R. Lewis of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for ap-pellee.
   MILLS, Judge.

By interlocutory appeal, plaintiff seeks reversal of the trial court’s order granting Translinear’s motion to quash the service of process on it. Beckham and Brilliant abandoned the interlocutory appeal taken by them.

Plaintiff, a Florida resident, brought suit against the defendant, a Texas corporation, seeking the return of $30,000.00 he paid to defendant for stock which it developed later was not registered for sale in Florida as required by Chapter 517, Florida Statutes. Plaintiff alleged in his complaint that he purchased the stock from the defendant in Florida, and that the defendant engaged in a business venture in Florida. Plaintiff obtained service of process on the defendant under the “long arm statute”, Section 48.181, Florida Statutes.

In support of the defendant’s motion to quash, several of its corporate officers gave affidavits that defendant had not engaged in any business venture in Florida, that the stock was sold to and delivered to plaintiff in Texas, and that as a convenience to plaintiff, an officer accepted plaintiff’s check in payment of the stock while in Florida on another matter.

In opposition to the motion to quash, plaintiff, by way of affidavit and deposition, stated that he agreed to buy the stock in Florida, that the stock was delivered to him in Florida, and that he delivered his check in payment of the stock in Florida. In addition, he stated that prior to the purchase and over a period of time officers of defendant carried on extensive negotiations with plaintiff for the sale of the stock while carrying on other business of the defendant in Florida. That after concluding the sale of the stock, the corporate officers of defendant were carried to Miami by plaintiff to check on a business interest defendant had there, and in which the plaintiff was involved under a contract with defendant.

Defendant did not file counter affidavits in rebuttal of plaintiff’s affidavit and deposition. The Florida long arm statute, Section 48.181, Forida Statutes, provides in pertinent part as follows:

“The acceptance by . all foreign corporations, ... of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry on a business or business venture in the state, or to have an office or agency in the state, constitutes an appointment by the . . . foreign corporations of the secretary of state of the state as their agent on whom all process in any action or proceeding against them, or any of them, arising out of any transaction or operation connected with or incidental to the business or business venture may be served. The acceptance of the privilege is signification of the agreement of the persons and foreign corporations that the process against them which is so served is of the same validity as if served personally on the persons or foreign corporations.”

Each case presented under the long arm statute must be resolved on the basis of the facts revealed by the record in that particular case. Wm. E. Strasser Construction Corp. v. Linn, 97 So.2d 458 (Fla.1957).

The long arm statute is only limited by its terms and the due process requirement that one have certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed 95 (1945).

The trial court concluded that there was insufficient evidence to show that Translinear conducted a business or business venture in Florida in respect to the sale of its stock to plaintiff. There was substantial competent evidence to support the trial court’s decision. We will not disturb it.

Interlocutory appeal dismissed.

RAWLS, Acting C. J., and McCORD, J., concur.


text:
    William A. CRISSMAN et al., Appellants, v. Kay F. DEDAKIS, Appellee.
    No. Y-86.
    District Court of Appeal of Florida, First District.
    April 13, 1976.

      Ferrin C. Campbell, Crestview, and D. Michael Chesser, Fort Walton Beach, for appellants.
    Michael William Mead and James W. Middleton, Fort Walton Beach, for appel-lee.
   BOYER, Chief Judge.

The final judgment here appealed, by which restrictive covenants as to part but not all of appellee’s property were removed, concluded two consolidated actions. In the first suit, filed by appellee as a class action, it was alleged that a substantial change had occurred in the neighborhood of appellee’s property justifying removal of the restrictive covenants. A default was entered and a declaratory decree followed. The second action was initiated by appellants, a class of property owners in Shali-mar Park Subdivision, wherein appellee’s property is located, seeking to have set aside the declaratory judgment previously entered. The two cases were consolidated and tried as a single action.

The trial judge found that although there had been no changes in the conditions within the subdivision materially affecting same, radical changes had occurred outside the subdivision in the general area and in close proximity “which were sufficient to neutralize the protection of the restrictive covenants”.

No useful purpose will be accomplished by here reciting the extensive and uncontroverted evidence of drastic changes in the zoning and uses of the properties, though outside Shalimar Park Subdivision, adjacent to and virtually surrounding ap-pellee’s property. Suffice to say, the evidence is more than ample to support the findings of the learned trial judge. He held, and we agree, that in order to warrant the granting of relief from restrictive covenants it is only necessary that the change in circumstances materially affecting the lands for which relief is sought be in the immediate neighborhood of those lands but not necessarily within the confines of the same subdivision.

In Allen v. Avondale Co., 1938, 135 Fla. 6, 185 So. 137, the Supreme Court of Florida said:

“This Court has repeatedly held that change in the circumstances and the neighborhood materially affecting the lands will warrant the granting of relief from restrictive covenants such as are here brought in question. [citations omitted]” (185 So. 138)

The evidence also revealed that the relief afforded appellee would have no detrimental effect upon the other properties in the subdivision.

Unlike appellants in Allen v. Avondale Co., supra, appellee, in the case sub judice, was one of the original owners of property within Shalimar Subdivision, and all of the changes in the surrounding and adjoining neighborhood took place subsequent to her acquisition. Further, while in the Allen case the restrictive covenants had only “about 14 months to run” those involved sub judice had no expiration date.

In Barton v. Moline Properties, Inc., 1935, 121 Fla. 683, 164 So. 551, 103 A.L.R. 725, the Supreme Court of Florida stated the applicable law as follows:

“Such restrictions were therefore subject to the general rule applicable to restrictive covenants of this kind that, where the time during which a restrictive covenant is to endure has not been expressly limited by the parties, it should be implied that some reasonable limitation adapted to the nature of the case was intended, and that such restrictions as the stated covenants imposed on the use of any particular grantee’s property, being in derogation of the otherwise free use and enjoyment of same, should be construed as extending for no longer period of time than the nature of circumstances and purpose of their imposition would indicate as reasonable for the duration of their enforcement without undue and inequitable prejudice to the property rights purchased and acquired by the original grantee and his successors in ti-tie, subject to such restrictive covenants, [citations omitted]
“In cases like this, each particular controversy over the term of duration of restrictive covenants on property uses must be decided on the equities of each particular situation as it is presented. The test for determining such equities is ordinarily whether or not the original purpose and intention of the parties to such restrictive covenants can be reasonably carried out, in the light of alleged materially changed conditions which are claimed to have effectually frustrated their object without fault or neglect on the part of him who seeks to be relieved by decree in equity from their further observance. [citations omitted] The doctrine to be applied in such cases is that expressed in the maxim ‘lex non cogit ad impossibilia,’ and it is particularly in point in cases wherein no specified reasonable term for the duration of restrictive covenants has been definitely set forth in the covenants themselves. (164 So. 556, emphasis added)
“. . . Where, however, it appears that such covenant or restriction is for the exclusive benefit of and that it is still of substantial value to the dominant lot, notwithstanding the changed condition of the neighborhood in which the said lot is situated, a court of equity will restrain its violation. . . .” (164 So. 557)

The evidence and applicable principles of law support the final judgment here appealed.

AFFIRMED.

McCORD and MILLS, JJ., concur.


author: McNULTY, Chief Judge.

text:
    PINELLAS COUNTY, a political subdivision of the State of Florida, Appellant, v. CITY OF PINELLAS PARK, a Florida Municipal Corporation, and City of Largo, a Florida Municipal Corporation, Appellees.
    No. 75-210.
    District Court of Appeal of Florida, Second District.
    April 7, 1976.
    W. Gray Dunlap, County Atty., Clear-water, and John T. Allen, Jr., Sp. Counsel, St. Petersburg, for Pinellas County.
    Edward D. Foreman and Jeffrey L. Myers of Foreman & Myers, and Robert P. Renfrow, St. Petersburg, for appellee City of Pinellas Park.
   McNULTY, Chief Judge.

Appellee, City of Pinellas Park, a wholesale customer of appellant county’s water system, filed a complaint herein seeking a declaratory judgment and injunctive relief under its water contract with the county entered into in 1964. Appellee City of Largo intervened seeking like relief under its contract with the county entered into in 1960.

The Pinellas Park contract contained a provision providing for an annual rate revision by the county effective each January 1. A formula was also established whereby the purchase price was to be the county’s actual cost of producing and delivering water to Pinellas Park. The Largo contract did not contain any specific provision for revising rates at any given time but, as to a purchase price, it provided that the county would charge the city the “standard municipal wholesale rate which may from time to time be fixed and determined by the county.”

Despite the annual January 1 provision of the Pinellas Park contract, the county notified the city in May of 1974 that it was increasing its rates effective July 1, 1974. This action ensued. After like notice to Largo, it intervened herein.

The basic thrust of both cities below was that the new rates sought to be charged by the county were unreasonable, discriminatory, arbitrary and capricious, that they bore no relationship to the actual cost of operating and supplying water to them and that the “actual cost” provision of the Pi-nellas Park contract was an enforceable limitation on the county’s rate-fixing powers. In addition, the City of Pinellas Park contended that the specific annual revision date of January 1 as provided for in the contract was binding and that the county could not revise the rates until the next ensuing January 1.

The county, on the other hand, argued that the new rates were indeed reasonable and equitable, that the new rates were necessary to maintain the water system in a “self-liquidating” position as required by the special act creating the system, and that the contract formula of “actual cost” could not be enforced as against the duty imposed upon it by the act to revise the rates “from time to time” on an “equitable basis.” Additionally, and for the same reasons, the county insisted that it was not bound by the provisions of the Pinellas Park contract specifying an annual date for revision of rates.

After full trial on these issues, the trial court held:

(1) That the new rates were valid and equitable.
(2) That as between the City of Pinel-las Park and the county the new rates met not only the criteria of the contractual formula but also the criteria mandated by the special act of 1953, supra.
(3) That the annual revision date in the Pinellas Park contract was reasonable and enforceable.
(4) That the rate formula in the City of Largo contract, to wit: the “standard municipal wholesale rate” could not be effective until equally applicable to Pinellas Park, and was therefore also governed by the January 1 revision date as aforesaid.

The court thereupon enjoined the county from effectuating and charging the new rates prior to January 1, 1975.

The county appeals the finding of the trial court that the annual revision date of January 1 is valid and enforceable. Both cities cross-appeal the finding that the new rates were reasonable and equitable. Pi-nellas Park additionally appeals the holding that the “actual costs” formula was met.

We affirm the finding of the trial court that the revised rates are reasonable and equitable. There was more than sufficient competent substantial evidence to support these conclusions.

We also affirm the finding that the new rates met the criteria of the contractual formula and the holding that they also met the criteria mandated by the special act of 1953, supra. The real dispute between the cities and the county with respect to the “formula” rate is that the county based the new rates on certain calculations of costs which cranked in bond retirement charges, expenses of operation, maintenance, renewal of the system and assessment of costs for tangible assets. The cities contend that many of these criteria are not predicated on audits of actual costs but are projections made on estimates. The cities also argue that the new rates inflate the actual costs and result in disproportionate charges to wholesale customers inuring to the benefit of retail customers. The record clearly supports the trial judge’s resolution of the parties’ differences in the matter.

With respect to the criteria mandated by the special act, the court was equally correct in that the evidence supports a finding of compliance by the county of its continuing statutory duty to revise rates on an “equitable” basis, that is to say, fairly and reasonably between and among all current classes of retail and wholesale customers. In any case, this duty cannot be inflexibly limited or frustrated by contract so the special act itself would control even if it conflicted with the provisions of the contract.

Coming now to the annual January 1 revision date in the Pinellas Park contract, we also agree with the trial judge that such a revision date is not violative of the special act nor is it an ultra vires limitation or restriction on the county’s continuing duty under the act to revise the rates “from time to time whenever necessary.” The question is one of reasonableness ; and there are any number of reasons why the cities and the county would seek to agree to a reasonable periodic date for a revision of rates so that mutual fiscal considerations, purchasing and maintenance considerations, new hookup projections and budgeting and taxing conveniences might be accommodated. The fixing of such a date, having a rational basis in reasonable mutual convenience, is not a “limitation” or a freezing of the county’s continuing duty to revise rates; rather, indeed, such a provision may be said affirmatively to promote the performance of that duty by providing a known schedule periodically to revisit it. The provision is a valid, reasonable and enforceable one and the trial court was correct in giving it effect.

We must differ with the trial judge with respect to the City of Largo, however, and can find no basis to preclude the county from exercising its proper function in revising the rates as against that city. The mere fact that it had contracted with the City of Largo to charge them “standard municipal wholesale rates” didn’t require that the county wait until all cities which may be affected by such rate be charged it. The record reflects that there are • five major municipal wholesale customers of the county system some of which (depending upon their contracts with the county in which there are annual revision dates similar to the one herein with Pinel-las Park) will be amenable to the new “standard” rates at differing times. Largo’s contract has no such revision date and we can see no justification for giving Largo the benefits of someone else’s contract nor imposing upon the county an obligation, vis-a-vis Largo, which it has not undertaken.

We have considered the other points argued by the parties and find them to be without merit.

In view whereof, the judgment appealed from should be, and it is hereby, affirmed insofar as it relates to th'e contract between the appellant county and the appellee City of Pineallas Park; it should be, however, and it is hereby, reversed insofar as it related to the contract between the county and the City of Largo, and the revised rates of the county should be effective as against the City of Largo as of July 1, 1974. The case is remanded for further proceedings not inconsistent herewith.

HOBSON and SCHEB, JJ., concur.

      . Chapter 29442, Laws of Florida, Special Acts 1953.

      . Chapter 29442, Laws of Florida, Special Acts 1953, § 4(4).

      . See City of Clearwater v. Bonsey (Fla.App. 2d, 1965), 180 So.2d 200. Cf. City of Safety Harbor v. Pinellas County (Fla.App.2d 1969), 218 So.2d 528.

        .Cf. City of Safety Harbor v. Pinellas County, id.


text:
    The STATE of Florida, Appellant, v. James McKNIGHT, Appellee.
    No. 75-789.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Richard E. Gerstein, State Atty., and Milton Robbins, Asst. State Atty., for appellant.
    Phillip A. Hubbart, Public Defender, and Karen Gottlieb, Asst. Public Defender, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellant, the prosecution below, brings this appeal from an order of the trial court dated May 2, 1975, granting appellee’s, defendant below, motion to dismiss and discharge. Appellant contends that, based on the facts of this case, the trial court erred in granting appellee’s motion to dismiss and discharge because he had not been given a speedy trial as required by Rule 3.191, Florida Rules of Criminal Procedure, 33 F.S.A.

In accordance with the well recognized rules that an order of the trial court on appeal is generally presumed to be correct and the one who asserts error has the burden of showing it, we have carefully considered the record, all points in the briefs, and arguments of counsel in light of the controlling principles of law and Rule 3.191, Florida Rules of Criminal Procedure, 33 F.S.A., and conclude that no reversible error has been demonstrated.

We find the trial court properly determined that appellee, although agreeing to the several extensions of time requested by appellant, did not waive his right to a speedy trial pursuant to Rule 3.191, Florida Rules of Criminal Procedure, 33 F.S.A. None of the delays were caused by appel-lee, but rather were occasioned solely by appellant for its benefit.

Affirmed.


text:
    William PANASUK, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1307.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Joseph Mincberg, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for ap-pellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456; State v. Padilla, Fla.App. 1970, 235 So.2d 309; State v. Ebert, Fla.App.1971, 251 So.2d 38.


text:
    Leroy WALKER, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 75-273.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Rehearing Denied April 26, 1976.

      Alan E. Weinstein and Mark Krasnow, Miami Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant was indicted for the crime of rape. On a competency hearing prior to trial he was held to be competent to stand trial. On trial before a jury he was found guilty, was so adjudged by the court and sentenced to imprisonment for a term of years. He appealed. We have considered the several contentions presented by the appellant, in the light of the record, briefs, argument and the applicable law, and hold no reversible error has been made to appear.

Denial of the defendant’s motion for production of the testimony given by the victim before the grand jury was not error. The appellant’s contention that he had a constitutional right to have the grand jury testimony of a prospective trial witness produced in such case was answered to the contrary by Minton v. State, Fla.1959, 113 So.2d 361, 363. Nor is such required by the provisions of Rule 3.220 RCrP. Soloman v. State, Fla.App.1975, 313 So.2d 119. No sufficient predicate therefor was shown. Minton v. State, supra; State v. Drayton, Fla.App.1969, 226 So.2d 469, 475.

It was not error to deny the defendant’s motion for mistrial following the prosecutor’s offer to permit the defendant to introduce into evidence, out of order, a certain investigation report not otherwise admissible. It appears that in the course of defendant’s cross examination of a state witness, an employee of the county public safety department, the attorney for the defendant asked the witness whether a produced photograph of a weapon was taken from a certain distance. When the witness answered in the negative, defendant’s counsel showed the witness a document and asked him if it was his report. At that point the prosecutor requested that the item be marked for identification, which was done. The prosecutor then stated, “I have no objection to that being admitted in evidence out of turn”, to which the defendant’s counsel responded: “We appreciate your generosity, but we are not offering it at this time, Judge”.

The appellant argues that the occurrence referred to above operated to deny him a fair trial, contending it placed him in a position where his failure to introduce the item in evidence could have been regarded by the jury as an intentional withholding of relevant evidence by the defendant. The trial court viewed the matter as nonprejudicial, and we agree. Moreover the motion for mistrial was not preceded by an objection and request for an instruction to disregard. See Mabery v. State, Fla.App. 1974, 303 So.2d 369, 370.

The court did not commit error in the giving of an “Allen Charge”, after the jury reported it was in disagreement. State v. Bryan, Fla.1974, 290 So.2d 482, 484.

After the verdict of guilty was returned, the defendant requested that the jurors be examined with reference to a remark said to have been overheard earlier in the case, attributed to an alternate juror, whereby the alternate had offered to pay one of the jurors to let him take the juror’s place, indicating he was in favor of conviction. Although apprised of that incident prior to submission of the case to the jury, the defendant’s attorney remained silent regarding the matter until after the adverse verdict was returned. In United States v. Curry, 5 Cir.1973, 471 F.2d 419, it was held that an attorney for a party cannot permit juror misconduct to go unnoticed, thereby sewing a defect into the trial, and later claim its benefit. See Williams v. State, Fla.App.1958, 101 So. 2d 877. The alternate juror’s request to a juror was refused by the latter. Investigation as to whether the incident had influential impact on the juror concerned would involve speculation and conjecture, and for that reason its omission was justified, within the court’s discretion. First National Bank in Tarpon Springs v. Bliss, Fla. 1952, 56 So.2d 922. Dealing with conduct of jurors is a matter in which the trial court has discretion. Mizell v. New Kingsley Beach, Inc., Fla.App.1960, 122 So.2d 225.

Certain remarks by the prosecutor in final argument prompted a motion for mistrial which the court, in our view thereof, properly denied. Objection and motion for correctional instruction were lacking. Morris v. State, 100 Fla. 850, 130 So. 582; Mabery v. State, supra. No fundamental error was involved.

Fingerprints found in the victim’s residence' (on a jalousie pane which had been removed from the door; on its jalousie clips; on the inside of the door near the doorknob; on the inside of the screen door; on a door leading to the kitchen; and on a credit card found on the bed in the bedroom) were found to be those of the defendant. The fingerprint evidence and testimony relating to them were introduced. No error occurred in that regard. The defendant was not known by the victim, and had not been in the victim’s residence on any prior occasion. See Bryant v. State, Fla.1970, 235 So.2d 721; State v. Perry, Fla.App.1974, 297 So.2d 638.

There was competent substantial evidence for the jury to find against the defendant on his plea of not guilty by reason of insanity, giving due regard to the burden of the state incident thereto and the required quantum of proof. Resolution of conflicts in the evidence was within the province of the jury.

The judgment is affirmed.


text:
    Clarence Marvin YOUNG, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1338.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Phillip A. Hubbart, Public Defender, and Alan L. Postman, Special Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Brian H. Leslie, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See: Oatman v. State, Fla.App.1974, 289 So.2d 431; State v. Kelley, Fla.App.1975, 322 So.2d 581.


text:
    Albert Lee ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1472.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Phillip A. Hubbart, Public Defender and Gerald D. Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and J. Robert Olian, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Data v. State, Fla.App. 1973, 278 So.2d 334.