author: McNULTY, Chief Judge.

text:
    Clark Summer VELSOR and Georgia Lee Velsor, Appellants, v. ALLSTATE INSURANCE COMPANY and Ronald Miller, Appellees.
    No. 74-1263.
    District Court of Appeal of Florida, Second District.
    March 17, 1976.
    Rehearing Denied April 19, 1976.

      William R. Hapner, Mulholland & Hap-ner, and David A. Maney, Gordon & Ma-ney, Tampa, for appellants.
    Edward M. Waller, Jr., Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellees.
   McNULTY, Chief Judge.

This negligence action comes to us in an unusual posture. Appellant, Mrs. Velsor, sought damages from appellees for injuries sustained by her in an automobile accident. Mr. Velsor sought necessarily incurred medical expenses for his wife’s injuries and for his loss of consortium. After trial, the jury first returned a verdict in the amount of $10,000 for the wife but awarded “zero” damages for the husband. The trial court told the jury that if they found the wife had been compensably injured, then the husband would be entitled to recover some medical expenses as the evidence may have demonstrated. The court thereupon fully re-instructed the jury on the question of damages legally recoverable by the wife and the husband and sent them back to reconsider the verdict. In less than fifteen minutes the jury returned with their verdicts; again in the amount of $100,000 for the wife but this time in the amount of $35,000 for the husband.

The trial judge had the jury removed from the courtroom and told counsel that he was of the view that the jury had ignored his instructions and that he was going to set aside the verdicts and grant a new trial. Plaintiffs’ counsel objected and requested that the jury be polled.

The jury was returned and the judge asked the foreman how they arrived at the first verdict. The foreman replied that it had included “doctor bills and hospital bills and for her suffering and everything, but we didn’t include anything for him.” The second verdict of $35,000 for the husband, he said, was for the husband’s “suffering.” The court then inquired of juror number two who stated that with respect to the second verdict of $35,000 for the husband that “. . . for him it is for the doctor (sic) bill and the aggravation he had to go through while she was sitting in the hospital.” No further inquiry was made of any of the other jurors by the court. Instead he discharged the jury and thereafter obviously believing that the jury had erroneously failed to reduce the verdict for the wife by the amount of the medical bills, he entered a written order granting a new trial concluding that:

“The jury’s failure to follow the Court’s instruction was patently obvious. Interrogation of the foreman and one other juror confirmed the confusion in the minds of the jurors. This confusion permeates the entire verdict. If the members of the jury couldn’t understand who was entitled to recover medical expenses after being instructed thereon three times, then the Court seriously questions if they could understand the instructions on comparative negligence.”

We think the court erred. He expressed no dissatisfaction with the size of the verdict nor did he suggest in any way that the verdict was against the manifest weight of the evidence. Rather, he sought to inquire into the reasoning processes of the jury in arriving at their final verdicts. This is impermissible in that it seeks to impeach the verdict by the very matters which inhere in it, viz., the subjective decision-making process of the jury. If a verdict is pronounced in the presence of all jurors which presumptively has satisfied the enlightened conscience of each of them it is against public policy to inquire into the motives and influences by which their deliberations were governed. The rule is founded on the sound policy of preventing litigants or the public from invading the privacy of the jury room.

The situation here is inapposite to those instances in which there is improper contact with, or conduct by, a juror or in those cases of verdicts arrived at by prior commitment to quotients or lot. Such cases involve matters extrinsic to the verdict; and inquiry or impeachment is proper in such cases for the reason that neither the individual thought processes, calculations or judgments of the jurors are revealed thereby nor are matters inquired into which form a proper predicate for the verdict. The errors, if any, do not therefore inhere in the verdict.

The proper procedure for the trial court to have followed here, we think, was merely to poll the jury as requested by plaintiffs. If each juror indicated his assent to the verdicts ultimately arrived at, and affirmed that they were his verdicts, the court ought not have gone any further. If he determined thereafter, of course, a new trial or remittitur was appropriate for sufficient reasons within the discipline of Cloud v. Fallís, it would certainly be a different matter. But we are not faced with that situation now.

In view whereof, the order appealed from should be, and it is hereby, reversed; and the cause is remanded with directions that the trial court reinstate the verdicts and enter appropriate judgments thereon.

GRIMES and SCHEB, JJ., concur.

      . Compare Cloud v. Fallís (Fla.1959), 110 So.2d 669.

      . See McAllister Hotel, Inc. v. Porte (Fla. 1960), 123 So.2d 339; Astor Electric Service v. Cabrera (Fla.1952), 62 So.2d 759; Coker v. Hayes (Fla.1878), 16 Fla. 368.

      . See Marks v. State Road Department (Fla. 1954), 69 So.2d 771.

      . Id. See also 32 Fla.Jur., Trial § 273 (1960).

      . See n. 3, supra. See also 32 Fla.Jur., Trial § 274 (1960).

      . (Fla.1959), 110 So.2d 669.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    J. G. PLUMBING SERVICE, INC., Appellant, v. COASTAL MORTGAGE COMPANY, a Florida Corporation, et al., Appellees.
    No. 75-1540.
    District Court of Appeal of Florida, Second District.
    March 24, 1976.
    Rehearing Denied April 19, 1976.

      Tim H. Warren of Icard, Merrill, Cullis, Timm & Furen, Sarasota, for appellant!
    Robert P. Rosin of Rosin, Abel, Band & Rosin, Chartered, Sarasota, for appel-lee, Coastal Mortgage.
   GRIMES, Judge.

This case involves the question of whether a construction mortgage lender on an unfinished construction project runs the risk of unpaid subcontractors and ma-terialmen obtaining liens upon the undis-bursed loan funds because of its failure to promptly notify them of a default in the mortgage.

Goba Construction Company (Goba), the owner/contractor of a condominium project, brought suit against Coastal Mortgage Company (Coastal), its construction mortgage lender, for specific performance, reformation, damages and other relief. Coastal responded to the complaint with a counterclaim to foreclose its mortgage on the unfinished project. J. G. Plumbing Service, Inc. (Plumbing), a plumbing subcontractor which had filed a mechanic’s lien, was joined as a defendant in the mortgage foreclosure.

Plumbing included certain affirmative defenses in its answer to Coastal’s claim for mortgage foreclosure and filed a counterclaim of its own against Coastal. Upon Coastal’s motion, the court entered an order striking the affirmative defenses and dismissing the counterclaim. Plumbing appeals this order.

The essence of the affirmative defenses and the counterclaim is that Plumbing is entitled to an equitable lien in the undis-bursed construction loan proceeds because Coastal knew of Goba’s defaults upon which it based its foreclosure action but delayed in asserting its rights thereby allowing Plumbing to continue to supply services, materials and labor to the job so as to enhance the value of the property upon which Coastal intended to foreclose. In support of its position, Plumbing relies strongly upon Fred S. Conrad Const. Co. v. Continental Assur. Co., Fla.App.1st, 1968, 215 So.2d 45, in which somewhat similar allegations were held to state a cause of action against a construction mortgage lender.

The parties to this appeal differ in their interpretation of the Conrad opinion in one material respect. Coastal construes the language of the opinion as indicating that the housing project for which the money had been loaned was completed. Plumbing points out that nowhere in the opinion is it specifically stated that the construction was finished. Plumbing further suggests that it makes no difference whether construction has been completed, but this is a proposition with which we cannot agree.

If all of the funds called for under the loan agreement have not been disbursed by the time construction has been completed, the construction lender then has more security than it bargained for. Should a default then occur, the mortgage lender will be in the position of being able to foreclose upon (and perhaps buy in) a completed building even though it has not yet disbursed all of the construction loan money. Under these circumstances, the Fourth District Court of Appeal recently held that a contractor who had completed the construction in accordance with his construction agreement was entitled to an equitable lien against the undisbursed balance of construction loan funds under the construction loan agreement. Morgen-Oswood & Associates, Inc. of Florida v. Continental Mortgage Investors, Fla.App.4th, 1975, 323 So.2d 684. In essence, that was a case in which relief was granted in order to avoid an unjust enrichment.

We do not believe that this principle can be extended to a situation where the default occurs before the construction contemplated by the loan agreement has been completed. Under these circumstances, the construction lender is left with the remedy of foreclosing upon a partially completed building. More often than not, the market value of a partially constructed building will be substantially less than the total cost of the labor and material which has already been incorporated into its construction. Under these circumstances, it cannot be said that the mortgagee has been unjustly enriched. To adopt the rule urged by appellant would place upon construction lenders the unwarranted duty of affirmatively keeping all of the subcontractors and materialmen advised of the status of the mortgage and might even discourage a mortgage lender from working with its mortgagor so as to enable him to correct his default and to complete the job.

We recognize that Plumbing alleged that included in the undisbursed construction loan funds held by Coastal is the 10% re-tainage for work completed by Plumbing. We further recognize that in Crane Co. v. Fine, Fla.1969, 221 So.2d 145, the Supreme Court held that a company whose specially fabricated materials were furnished to a plumbing subcontractor and incorporated into a building was entitled to an equitable lien against funds due the plumbing subcontractor which had been withheld by the general contractor as retainage prior to the time that the plumbing subcontractor had abandoned the plumbing j ob. However, the court said:

“. . . We emphasize that this opinion is not to be interpreted as holding that a materialman is entitled to seek an equitable lien merely because his materials are incorporated in the improvement. We hold only that, because of the special and peculiar equities shown by the record in this particular case, the plaintiff should not be foreclosed from seeking an equitable lien merely because he was entitled to but failed to perfect his statutory materi-alman’s lien.”

It is significant that the “hold-back” fund in Crane was in the hands of the contractor, and there was no construction mortgage lender in the picture. This distinction was illustrated in Hall’s Miscellaneous Ironworks, Inc. v. All South. Inv. Co., Fla.App. 1st, 1973, 283 So.2d 372, in which the court affirmed the dismissal of a subcontractor’s counterclaim for a superior equitable lien against land which was the subject of a mortgage foreclosure and into which its building materials had been incorporated. According to the allegations of the counterclaim, the subcontractor had been fraudulently induced by the owner/contractor to refrain from filing a notice of commencement which would have preserved its right to claim a mechanic’s lien against the property superior to the mortgage which was not executed until two weeks before the project was abandoned. The court recognized that the subcontractor’s allegations may have set forth special or peculiar equities sufficient to state a claim .for an equitable lien against the property but held that in the absence of allegations that the mortgagee participated in the fraud, the lien of the mortgage was superior to any claim of lien by the subcontractor.

In the context of the instant case and consistent with Hall’s, we readily agree that a construction lender should not be per- , mitted to affirmatively mislead subcontractors and materialmen so as to induce them to continue to work upon and supply materials to the job to their detriment. A construction lender who falsely advises a ma-terialman or subcontractor that the mortgage is not in default must suffer the consequences if further work and materials are incorporated into the project in reliance thereon. Such action would be equivalent to the fraud and misrepresentation which the courts have traditionally sought to remedy where possible through the imposition of an equitable lien. See Schraub v. Charest, Fla.App.3d, 1973, 277 So.2d 814.

Here, Plumbing alleged that it was without knowledge of any default or pending foreclosure “but to the contrary were told that the project would be completed, thereby causing damage to J. G. Plumbing.” However, there is no allegation that it was Coastal which told Plumbing that the project would be completed. Therefore, we hold that neither Plumbing’s affirmative defenses nor its counterclaim legally state a cause of action against the unpaid balance of the construction loan fund. If Plumbing can prove affirmative deception on the part of Coastal, it will have an opportunity to do so upon proper allegations, because the order from which this appeal was taken gave leave to amend.

AFFIRMED.

McNULTY, C. J., and HOBSON, J., concur.


author: PER CURIAM.

text:
    Cecil A. ROSS, Jr., Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-292.
    District Court of Appeal of Florida, First District.
    April 1, 1976.
    Richard W. Ervin, III, Public Defender, and Ronald A. Mowrey, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

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

Accordingly, the judgment and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    J. D. SASNETT, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-329.
    District Court of Appeal of Florida, First District.
    April 1, 1976.
    Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

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

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J. and MILLS and Mc-CORD, JJ., concur.


text:
    James W. RUMPH, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-386.
    District Court of Appeal of Florida, First District.
    April 1, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, and James W. Rumph, in pro. per., for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

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

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: MILLS, Judge.

text:
    Theo George FOTIANOS et al., Appellants (Defendants), v. STATE of Florida, Appellee (State).
    No. W-482.
    District Court of Appeal of Florida, First District.
    April 1, 1976.

      Selig I. Goldin and Larry G. Turner of Goldin & Turner, Gainesville, for appellants.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for ap-pellee.
   MILLS, Judge.

The defendants appeal from judgments of conviction and sentence based on jury-verdicts finding defendants Fotianos, North-up, and Soto guilty of the possession of more than five grams of marijuana, and finding defendant Martin guilty of the possession of less than five grams of marijuana.

The issues raised by this appeal are:

1. Whether the Internal Revenue Service illegally conveyed information to the Florida Department of Law Enforcement which violated defendants’ constitutional rights.

2. Whether the implanting of an electronic beeper on defendants’ motor vehicle violated their constitutional rights.

3. Whether the warrantless search and seizure by the police was based on probable cause and exigent circumstances.

4. Whether the trial court erred in refusing to permit the defendants to adduce evidence that there were three species of cannabis.

5. Whether the trial court erred in allowing a chemist to testify that the vegetable matter he examined was cannabis sativa L.

6. Whether the evidence adduced by the State demonstrated that the defendants possessed more than five grams of marijuana.

7. Whether the evidence adduced by the State was sufficient to sustain the convictions of Fotianos and Martin.

8. Whether the trial court erred in receiving into evidence the plastic bag of marijuana found on Martin.

One of the defendants, using a fictitious name, attempted to purchase a cashier’s check for a sum in excess of $10,000.00. He lacked identification and a social security number. For those reasons, the bank refused to sell him a cashier’s check, and reported the incident to the Internal Revenue Service. The Internal Revenue Service reported the incident to the Florida Department of Law Enforcement which began the investigation which led to the arrest of the defendants and the seizure of the marijuana.

The defendants moved the court to supress the marijuana seized, contending that the Internal Revenue Service violated the Currency and Foreign Transactions Reporting Act, 31 U.S.C.A. § 1051 et seq., by conveying the information to the Florida Department of Law Enforcement, which constituted a violation of their constitutional rights. Therefore, their arrest and the seizure of the marijuana were illegal. The trial court denied the motion.

The Internal Revenue Service did not violate the Act. This was not the type of transaction covered by the Act, because there was not a completed payment, receipt, or transfer of United States currency. 31 U.S.C.A. § 1081. Therefore, there was no constitutional infringement of defendants’ rights, and the arrests and seizure were legal.

Without the consent of the defendants, and without the prior approval of a court, the police implanted an electronic beeper on defendants’ van. Thereafter, the movements of the van were monitored by an airplane flying above the van and receiving the beeper signals. In addition, the police also kept the van under visual surveillance by following it in motor vehicles. When the airplane had to withdraw to refuel, the police vehicles continued to follow the van to its destination.

The defendants moved the court to suppress the marijuana seized, contending their constitutional rights were infringed by the implanting of the electronic beeper. The motion was denied.

Although the implanting of an electronic beeper on a motor vehicle may be unconstitutional under some circumstances, U. S. A. v. Holmes et al., 521 F.2d 859 (5th Cir. 1975), under the circumstances in the case before us independent visual surveillance was maintained of the van by the police. Therefore, because the surveillance of the defendants’ van was maintained visually and independently of the beeper, th'e subsequent seizure of marijuana was not the “fruit of the poisonous tree”. Wong Sun v. U. S. A., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

As a result of the information furnished the Florida Department of Law Enforcement by the Internal Revenue Service, an investigation was begun which resulted in the arrest of the defendants, and the seizure of a large amount of marijuana. Surveillance of a new unfurnished Winnebago van was begun which indicated that the owner was Soto. According to police information, Fotianos, who was seen about the Winnebago, was heavily involved in drug operations. The police followed the Winnebago, along with an accompanying Dodge van and Ford truck, from Gaines-ville to a Gulf County campground. Under cover of night, the Winnebago and two accompanying vehicles departed the campground and entered an area where marijuana had been discovered recently which led to a round-the-clock, mass surveillance of the area. At the time the Winnebago and accompanying vehicles entered the suspect area, the Winnebago rode high and level. When they emerged from the suspect area, the Winnebago was riding low and appeared to be heavily loaded. The police followed the vehicles to a road block which was set up in Leon County. The vehicles were stopped, and a search revealed large amounts of marijuana in the Winnebago and Dodge. The Winnebago was driven by Soto, the Dodge was driven by Northup, and the Ford truck was driven by Fotianos and occupied by Martin. The truck driven by Fotianos was carrying cans of gasoline. Fotianos’ fingerprints were found on the Dodge, and the fingerprints of Soto and Northup were found on all of the vehicles.

The defendants’ vehicles were searched, and the marijuana seized, without a warrant. They moved the court to suppress the marijuana, contending the warrantless search and seizure was without probable cause and exigent circumstances. The court denied the motion. We agree.

Under the facts of this case, the police had sufficient information to believe that the defendants were in the Gulf County area to pick up marijuana. The police observed that the Winnebago was riding high and level immediately before it disappeared into the suspect area. Upon recontact with it after it emerged, they noticed that it was riding low and was heavily weighted down. This fact together with the previous facts presented probable cause to stop the vehicles and to search them for marijuana, without a warrant. U. S. A. v. Summerville, 477 F.2d 393 (5th Cir. 1973).

The court granted the State’s motion to exclude the defendants’ expert testimony concerning the polytypic nature of cannabis.

The court did not err in refusing to permit the defendants to adduce evidence that there were three species of cannabis. Section 893.02(2), Florida Statutes, does not limit itself to cannabis sativa L. It refers to any other species or varieties of cannabis. In addition, the statute provides a sufficient description of what was intended to be prohibited to give notice to all persons of the illegality of the actions of the defendants. Walker v. State, 318 So. 2d 519 (Fla.App.3d, 1975).

The court did not err in allowing a chemist to testify that the vegetable matter he examined was marijuana. The responsibility of determining the qualifications and range of subjects on which an expert witness may be allowed to testify rests with the trial court. Its determination will not be disturbed on appeal unless there is a clear showing of abuse of discretion. Seaboard Air Line Railroad Co. v. Lake Region Packing Ass’n, 211 So.2d 25 (Fla. App. 4th, 1968). Defendants made no such showing.

The evidence adduced by the State was sufficient to prove that the defendants possessed more than five grams of illegal marijuana. One exhibit contained 2,327 grams, and the other exhibit contained 1,968 grams. Although these were gross weights, before removing the mature stalks required by Section 893.02(2), Florida Statutes, the amount was so great that it would be impossible to arrive at any conclusion other than the illegal marijuana exceeded five grams. This is an instance mentioned by the court in Samet v. State, 284 So.2d 450 (Fla.App.3d, 1973), where the trier of fact could readily conclude that a certain property met a weight requirement.

Based on the facts ■ previously stated, there was substantial competent evidence to support the conviction of Fotianos.

The court did not err in receiving into evidence the plastic bag of marijuana found in Martin’s coat pocket, and the jury’s verdict finding Martin guilty of the lesser included offense of possession of less than five grams of marijuana was supported by the evidence.

The judgments are affirmed.

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


author: WALDEN, Chief Judge.

text:
    Kathleen C. ROBINSON, Petitioner, v. INDUSTRIAL RELATIONS COMMISSION et al., Respondents.
    No. 75-2004.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1976.
    Rodney W. Bryson, of Bryson & Ber-man, Miami, for petitioner.
    Kenneth H. Hart, Jr., General Counsel, Tallahassee, and James R. Parks, Miami, for respondent Florida Dept, of Commerce Div. of Employment Security.

      Alan Douglas Greene, of Bruckner, Greene & Manas, Miami, for respondent The Hertz Corp.
   WALDEN, Chief Judge.

This is a petition for writ of certiorari, addressed to a decision of the Industrial Relations Commission which denied petitioner’s claim for unemployment compensation. We grant the petition, quash the order under review, and remand with instructions to grant petitioner unemployment compensation benefits.

We employ the facts found in the letter from the employer, Hertz, to the Department of Commerce:

“Mrs. Robinson was employed by Hertz since June, 1969. She became pregnant and worked until her ninth month of pregnancy. After following proper Hertz procedure, she applied for a Maternity Leave of Absence, with all intentions of returning to work three months after the birth of her child.
“Before she left her position, we transferred another employee to cover Mrs. Robinson’s position during her leave. Several days prior to September 26, 1974, I requested that Mrs. Robinson begin her leave since she had properly trained her replacement and I felt she was too far along in her pregnancy to continue working.
“Again, following proper Hertz procedure, at the termination of her Leave of Absence, she requested to return to work. At the time of Mrs. Robinson’s request to return to work, due to economic conditions and a cutback in employees, we could not reemploy Mrs. Robinson. At this time we gave her notice that she had been terminated.” (Emphasis supplied.)

The foregoing is in exact accord with the testimony given in the administrative proceeding.

Regardless of this record, the Appeals Referee found:

"... record and evidence of the instant case clearly show that the claimant voluntarily left her employment without good cause attributable to the employer, within the meaning of the law set forth above. Claimant discontinued work after September 26, 1974, for personal reasons due to her pregnancy. Accordingly, the claimant should be disqualified from receiving benefits.”
The question is:
Whether an employee who is terminated by her employer because of economic conditions eliminating available jobs following an employer-approved maternity leave of absence has “voluntarily left her employment without good cause attributable to her employer” within the meaning of Florida Statute 443.06(1) (1973)?

It is our view that the maternity leave, approved as it was by the employer, has no bearing upon the issue. In our judgment her employment was terminated for the reason stated by the employer, “. . . due to economic conditions and a cut back in employees. . . . ”

And so we hold that petitioner did not voluntarily leave her employment without good cause attributable to her employer. Thus, she is entitled to receive unemployment compensation. See Southern Bell Telephone & Telegraph Company v. Administrator, Division of Employment Security of the Department of Labor, 253 La. 519, 211 So.2d 634 (La.1968); Western Electric Company, Inc. v. Director of Division of Employment Security, 340 Mass. 190, 163 N.E.2d 154 (Mass.1960).

We record that Respondents waived their right to file a brief and thereby we were not given the benefit of their views and rationale in justification of the reviewed order.

Certiorari is granted, the order is quashed, and the cause remanded with instructions to grant Petitioner unemployment compensation benefits.

PETITION GRANTED, with instructions.

DOWNEY, J., and LEE, THOMAS E., Associate Judge, concur.


author: PEARSON, Judge.

text:
    METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. Theodore R. SCHULTHEIS, Appellee.
    No. 75-556.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Rehearing Denied April 22, 1976.
    Stuart Simon, County Atty., and Stephen P. Lee, Asst. County Atty., for appellant.
    Taylor, Brion, Buker, Hames & Greene, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PEARSON, Judge.

Dade County appeals from a final judgment on a petition for writ of certiorari brought in the circuit court by Theodore R. Schultheis seeking review of a resolution of the Board of Commissioners of Dade County refusing to rezone property owned by Schultheis. The circuit court found that the County Commission departed from the essential requirements of law and ordered as follows:

* * * * * *

“ . . . Respondent’s Resolution No. Z-l 18-74 is quashed, and Respondent is ordered and directed to forthwith rezone petitioner’s property to a zoning classification of not less than RU-4L.”
* * * * * *

In setting out a summary of the facts shown by the record made before the County Commission, the trial judge stated:

“Petitioner is the owner of approximately 15 acres of the land located in a block of approximately 40 acres bounded on the North by Southwest 90th Street, on the East by Southwest 77th Avenue, on the South by Southwest 94th Street and the West by Southwest 79th Avenue. Petitioner sought to rezone this property from EU-M (single family, one-half acre estates) to RU-4L (limited apartment house-23 units per acre).
“The record shows that the East half of this block, approximately 20 acres, was rezoned in July of 1967 by the County Commissioners of Dade County from EU-M (single family, one-half acre estates) to RU-4L (limited apartment house-23 units per acre) and RU-3M (minimum apartment house-12.9 units per acre). There is presently constructed upon this portion of the block an apartment house complex with a density of 17 units per acre. The Petitioner’s 15 acres abuts this complex. The remaining 5 acres to the South of Petitioner’s property is presently used for a dog kennel and nursery school under a non-conforming use. Across Southwest 79th Avenue, to the West of Petitioner’s property, is Kendallwood Elementary School and an office building. On the North across Southwest 90th Street, is a 10-acre tract facing North Kendall Drive, a heavily ■ traveled thoroughfare, which is zoned R1 (single family residences). This 10-acre tract is vacant and in its natural state. Adjoining it to the East is another tract of approximately 10 acres which was rezoned as late as November 19, 1973 to RU-3M and BU-2 (business-medium) for a multiple purpose complex which would include an office building, apartments, townhouses and restaurant. There is no EU-M zoning either abutting the Petitioner’s property or across the street from it.
“The Court also finds from the Record that the general area to the East of Petitioner’s property is one of high intensity use. Approximately one mile to the East is Dadeland Shopping Center, a regional shopping center. Likewise, to the East of Southwest 77th Avenue are apartment complexes, highrises and office buildings.
“The Petitioner employed professional land planners to develop an apartment project in the block which would be compatible with the present zoning and uses. This plan was submitted to the County Commission whereby the density would be limited to 17 units per acre, the same as the apartment complex to the East, with low density one-story villa type apartments fronting along Southwest 79th Avenue directly across from the elementary school. Professional appraisers testified, among other things, that the proposal was a reasonable use of Petitioner’s land and the Court so finds.”
;K * ‡ Jk >{e ‡

The county has, upon its appeal, attempted to re-argue its position taken in the trial court. We think that the summary of the record as set forth by the trial judge is essentially correct and that it supports his conclusion that petitioner is entitled to a rezoning of the fifteen acre tract. The County’s position that the applicability of the present zoning is a “fairly debatable” issue and, therefore, should be left to the legislative body is not substantiated by the record. It is clear that the development of the area has been such that the petitioner would have been deprived of the beneficial use of his property if the present stated zoning was to be perpetuated.

The question then becomes one of whether the trial judge was correct in designating the zoning classification “RU-4L” (limited apartment house-23 units per acre) as the lowest reasonable use for the property. We agree with the County that there is nothing in the record to support such a conclusion by the trial judge. Tacitly, the petitioner also admits this fact because the force of his argument is that he does not intend to use the 23 units per acre classification in all its virility but that he has voluntarily submitted a plan which calls for 17 units per acre. Inasmuch as we find that the record will not support a determination by the trial court that the petitioner is entitled to a zoning classification of RU-4L and nothing less, we are faced with the situation of whether we should return the, matter to the trial court with directions to leave the ultimate zoning classification to the legislative authority or designate at this stage in the litigation a zoning classification which is supported by the record.

It is our conclusion that in an attempt to give to petitioner and the County a speedy determination of this litigation, we should adopt the latter course. We, therefore, hold that this record will support a finding by the trial judge that any zoning classification not less liberal than that of RU-3M would be an arbitrary and unreasonable exercise of police power. The zoning designation RU-3M permits multiple family developments and is in accord with that granted by the County to neighboring property. Accordingly, the judgment appealed is reversed and the cause remanded for the entry of a judgment in accordance with the views herein expressed.

Reversed and remanded.

      . See the general proposition of law in Village of Pembroke Pines v. Zitreen, Fla.App. 1962, 143 So.2d 660, 663.

      . See Larkins v. Metropolitan Dade County, Fla.App.1970, 237 So.2d 343.


text:
    Michael LEFF, Appellant, v. Eva LEFF, Appellee.
    No. 75-1501.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Rehearing Denied April 22, 1976.
    William John Mason, Miami, for appellant.
    Pettigrew & Bailey, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed on authority of Bergh v. Bergh, Fla.App. 1961, 127 So.2d 481.


text:
    William Dewey SKINNER, a/k/a Donald Gene Skinner, Appellant, v. STATE of Florida, Appellee.
    No. 75-255.
    District Court of Appeal of Florida, Second District.
    March 26, 1976.
    Rehearing Denied April 22, 1976.

      Jack O. Johnson, Public Defender, Bar-tow, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Horton v. Mayo, 153 Fla. 611, 15 So.2d 327 (1943).

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


text:
    Leo A. FURLONG, Jr., et al., Appellants, v. FIRST NATIONAL BANK OF HIALEAH, a United States Banking Corporation, Appellee. DALCAMP, INC., Appellant, v. FIRST NATIONAL BANK OF HIALEAH, a United States Banking Corporation, Appellee.
    Nos. 75-660, 75-697.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Rehearing Denied April 22, 1976.

      Weissenborn, Burr & Hyman and Gary M. Carman, Hacker & Phelps, Miami, for appellants.
    Podhurst, Orseck & Parks, Miami, for appellee.
    Before HAVERFIELD and NATHAN, JJ„ and CHARLES CARROLL (Ret.), Associate Judge,
   PER CURIAM.

Leo A. Furlong, Jr. and Dalcamp, Inc., defendants, appeal a summary final judgment for the First National Bank of Hialeah, plaintiff, in a mortgage foreclosure action. We reverse.

The transactions material to the issues raised in this appeal appear as follows: On December 1, 1972 Dalcamp deposited $45,000 with Furlong for the purchase of mineral deposits in place at $11,000 per acre on approximately 40 acres of real property controlled and held by Furlong. The agreement provided that Dalcamp, as buyer, would deliver to Furlong, as seller, a purchase money mortgage payable in $35,000 quarterly installments and that upon receiving the downpayment and each quarterly payment, Furlong would release from the mortgage of the mineral deposits, three acres for each payment. On April 13, 1973 Furlong executed and delivered to First National Bank of Hialeah a $500,000 promissory note and mortgage payable quarterly encumbering the same 40 acres upon which Dalcamp held the contract to purchase the minerals, together with a hypothecation security agreement wherein Furlong assigned his rights contained in the December 1, 1972 deposit receipt agreement to the Bank. On May 1, 1973, in exchange for a warranty deed to the mineral deposits, Dalcamp executed and delivered to Furlong a $366,870.77 promissory note and purchase money mortgage which provided for the agreed acreage mineral releases. In June 1973 Furlong defaulted on his payments to the Bank and on November 28, 1973 at the Bank’s insistence, Furlong assigned the Dalcamp note and mortgage to the Bank. In July 1974 the Bank filed suit to foreclose the April 13, 1973 mortgage. Dalcamp also was joined in the foreclosure action because of its interest in the subject property by virtue of its deed to the mineral deposits. Defendants Dal-camp and Furlong alleged as an affirmative defense that the Bank refused to execute the mineral releases from the encumbrance of the April 13, 1973 mortgage upon the tendering of the quarterly payments by Dalcamp. As a result of the Bank’s refusal to execute the releases, Dalcamp was unable to sell the mined mineral deposits and thereupon refused to make further payments under the terms of the note and mortgage causing the mortgage to fall into default. Following pretrial discovery, the Bank’s motion for summary judgment was granted and a final decree of foreclosure was entered. Furlong and Dalcamp appeal.

Defendants who are appealing from summary final judgment are entitled to have the record reviewed so that every reasonable inference is drawn in their favor; whereas, plaintiff, the moving party, has the burden of conclusively showing the absence of genuine issues of material fact. If the existence of such issues or the possibility of their existence is reflected in the record or the record even raises the slightest doubt in this respect, the summary judgment must and will be reversed. Williams v. Florida Realty & Management Company, Fla.App.1973, 272 So.2d 176. The defendants in their affirmative defenses raise genuine issues of material fact with regard to the oral and documentary evidence presented in support of their contention that the Bank, upon inducing Furlong to execute the April 13, 1973 mortgage, note and hypothecation agreement, was relying upon Dalcamp (by virtue of its agreement of December 1, 1972 with Furlong) to meet the quarterly payments from the proceeds of the sale of the mined minerals which could only be effectuated upon the Bank granting the releases.

Further, we must reject the Bank’s argument that the parol evidence rule prevents the defendants from varying the terms of the April 13, 1973 mortgage by demonstrating that the Bank agreed to the granting of the releases from the encumbrances of the mortgage upon the making of the payments. First, defendants allege there is documentary evidence as well as oral testimony to support this contention. Second, parol evidence is admissible to establish a contemporaneous oral agreement which induced the execution of a written contract, though it may vary, change or reform it, provided that the oral agreement is shown by clear, precise and indubitable evidence. Mallard v. Ewing, 121 Fla. 654, 164 So. 674 (1935); Healy v. Atwater, Fla.App.1972, 269 So.2d 753.

Accordingly, the summary final judgment and final decree of foreclosure is reversed and the cause remanded to the trial court for further proceedings not inconsistent herewith.

Reversed and remanded.


text:
    Donald LOMISON, Appellant, v. Mary H. LOMISON, Appellee.
    No. 75-1447.
    District Court of Appeal of Florida, Second District.
    March 26, 1976.
    Rehearing Denied April 22, 1976.
    John L. Riley, of Riley, Schowe & Salts-man, St. Petersburg, for appellant.
    Paul A. Kaleel, of Kaleel & Kaleel, St. Petersburg, for appellee.
   PER CURIAM.

Appellee/wife filed petition for dissolution of marriage and prayed, among other things, for temporary alimony and temporary attorney’s fees from the appellant/husband. The trial court ordered the husband to pay appellee $645 as tempo-ary alimony and awarded her attorney a temporary fee of $350. The said sums were to be paid within a day certain. The husband did not comply with the order of the court. Subsequently, he was found to be in willful contempt for his failure to comply with the court’s order. He was sentenced to serve 15 days in the county jail, with the right to purge himself of the contempt by paying the monetary awards stated above.

The appellant filed this timely interlocutory appeal and assigned as error the award to the wife of the sum of $645 as temporary alimony and allowance of $350 as temporary attorney’s fees to her attorney and the order adjudging him to be in contempt of court.

Appellant has failed to show clearly any error of the trial court either in the monetary allowances or in finding that he willfully refused to pay such sums as adjudged. The record filed here of the proceedings in the trial court is incomplete and, consequently, we are unable to ascertain any specific reasons which demonstrate appellant’s inability to comply with the order of the court. For the above reasons, the order to pay temporary support monies and the order of contempt are

AFFIRMED.

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


text:
    Anne L. PETTERSEN, Appellant, v. George PETTERSEN, Appellee.
    No. 74-1643.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Anne L. Pettersen, in pro. per.
    Walter Urchisin of Urchisin & Murphy, P. A., Deerfield Beach, for appellee.
   PER CURIAM.

This is an appeal from a final judgment of divorce. The appellant has failed to demonstrate reversible error.

AFFIRMED.

WALDEN, C. J., and CROSS and MA-GER, JJ., concur.


author: PER CURIAM. WALDEN, Chief Judge

text:
    Charles L. JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1747.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Richard L. Jorandby, Public Defender, and Elliot R. Brooks, Asst. Public Defender, and Maxine V. E. Reynolds, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

OWEN and DOWNEY, JJ., concur.

WALDEN, C. J., dissents with opinion.

WALDEN, Chief Judge

(dissenting):

Defendant was convicted of attempted grand larceny based upon circumstantial evidence. I would reverse because the evidence was insufficient as a matter of law to support the judgment because the essential allegations of the charge were not proven “beyond and to the exclusion of every reasonable doubt.” Criminal Florida Standard Jury Instruction 2.03.

The rule by which we are bound in circumstantial evidence cases is:

“to take the view . . . must [sic] favorable to the government, and to question whether the reasonable inferences to be drawn from such evidence are inconsistent with every reasonable hypothesis of innocence.” Williams v. State, 206 So.2d 446 (4th DC A Fla.1968).

Also, Criminal Florida Standard Jury Instruction 2.13 correctly portrays the same requirement in more detail:

“2.13 CIRCUMSTANTIAL EVIDENCE

“Elements of Proof

“1. The circumstances themselves must be proved beyond a reasonable doubt;
“2. The circumstances must be consistent with guilt and inconsistent with innocence;
“3. The circumstances must be of such a conclusive nature and tendency that you are convinced beyond a reasonable doubt of defendant’s guilt (the fact to be proved).
“If the circumstances are susceptible of two equally reasonable constructions, one indicating guilt and the other innocence, you must accept that construction indicating innocence.”

Here there was a reasonable hypothesis of innocence. The stolen property was 1,269 feet of telephone cable. No one observed the taking and defendant was never placed closer than five miles to the theft site.

A state’s witness testified that defendant told him in a bar that he had found some cable by the side of the road and enlisted the aid of the witness in retrieving it. The two of them went to the location of the cable, which was five or more miles from the theft site. They began to tow it with a truck. The length of this cable was at most only half the length of the cable stolen' and there is no testimony as to what happened to the missing cable or how the cable recovered by defendant and the witness came to be located five or more miles distant from the job site.

An officer observed the defendant and the witness helper dragging the cable. Defendant explained falsely that he was relocating the cable for a plumbing company. When the officer returned after a checkout, defendant had abandoned the cable.

The essential elements of the charge to be proven were:

(1) Did unlawfully get possession and control of the property of Southern Bell by taking without Southern Bell’s consent ;
(2) with the intent to permanently deprive the owner of the possession of the property.

On the one hand, from the proofs it could be that defendant was guilty by the naked reason of his unexplained possession of recently stolen property, State v. Young, 217 So.2d 567 (Fla.1968).

On the other hand, as a hypothesis of innocence, and at least equally acceptable, someone other than defendant took the 1,269 feet of cable and abandoned half or more of it alongside the road, after transporting it some five or more miles from the place of taking. The defendant discovered it abandoned there and went to a bar to get someone to help him salvage it.

I think there was a legal insufficiency of proofs and would reverse upon authority of McGuire v. State, 288 So.2d 271 (4th DCA Fla.1974); Lockett v. State, 262 So. 2d 253 (4th DCA Fla.1972); Garcia v. State, 227 So.2d 209 (2nd DCA Fla.1969); Lampley v. State, 214 So.2d 515 (3rd DCA Fla.1968) ; Williams v. State, 206 So.2d 446 (4th DCA Fla.1968).

I therefore dissent.


author: DOWNEY, Judge.

text:
    H. McGUIRE et al., Appellants, v. CONSOLIDATED ELECTRICAL SUPPLY, INC., a Florida Corporation, Appellee.
    No. 75-54.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Ralph Paul Douglas, Pompano Beach, for appellants H. McGuire and Marilyn McGuire.

      Richard A. Sherman, Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellant Royal Globe Ins. Co.
    Kenneth W. Wright, Sutton, Wright & Smith, Orlando, for appellee.
   DOWNEY, Judge.

Appellants H. McGuire and Marilyn McGuire owned a tract of land in Broward County, Florida, which they conveyed to McGuire Development Corporation on April 13, 1973. Just prior to that time ap-pellee, a materialman, commenced furnishing materials to a subcontractor for the improvement of a portion of said tract.

On April 25, 1973, McGuire Development Corporation as owner filed a “notice of commencement.” On May 4, 1973, appel-lee sent to appellants Mr. and Mrs. McGuire a “notice to owner” stating that it was furnishing material to the job. On October 25, 1973, appellee filed a claim of lien stating the property was owned by Mr. and Mrs. McGuire. Suit was commenced against the McGuires to foreclose the mechanic’s lien and in due course the lien was transferred to a bond posted by the owner of the property, McGuire Development Corporation. Appellant Royal Globe Insurance Company, the surety on the said bond, was made a party defendant.

Although on numerous occasions appellee was put on notice that appellants Mr. and Mrs. McGuire were not the owners of the property, the true owner, McGuire Development Corporation, was never made a party to the suit. The case went to trial against the appellants (Mr. and Mrs. McGuire and Royal Globe Insurance Company), and final judgment was entered against them for $7076.51.

Since appellee was a materialman furnishing materials to a subcontractor and there was no privity of contract between appellee and either the appellants or McGuire Development Corporation, appellee can only prevail by proving it was entitled to foreclose a mechanic’s lien against the property in question. But regarding, argu-endo, appellee’s lien as valid, the lien could not be successfully foreclosed unless the property owner was made a party to the suit. It is appropriate here to point out that nowhere in this litigation did appellee suggest any fraud on the part of Mr. and Mrs. McGuire, nor did it attempt to pierce the corporate veil of McGuire Development Corporation. So we are faced with a judgment against Mr. and Mrs. McGuire individually by one not in privity with them arising out of an alleged mechanic’s lien on property owned by a corporation not a party to the suit. In no event was appellee entitled to a judgment against Mr. and Mrs. McGuire. Even if appellee had been successful in proving its entitlement to a lien against the property in question, it would have no right in this case to subject the McGuires individually to a judgment.

We also hold the judgment against the bonding' company was improper. The record shows the property was owned by the McGuire Development Corporation, which is not a party to the suit. In order to remove the lien from its property McGuire Development Corporation put up a bond with appellant Royal Globe Insurance Company as surety. Appellee thereupon made the surety a party to the suit without the principal being made a party. Ordinarily, the liability of a surety is measured by the liability of the principal. The surety liability is generally coextensive with that of the principal. 30 Fla.Jur., Suretyship & Guaranty, § 14. Since the bond was never offered in evidence we cannot determine whether appellee could maintain this suit against the surety without the principal being made a party. In any event, the removal of a mechanic’s lien from property by a bond pursuant to § 713.24, F.S.1973, does not change the lien claimant’s burden to prove he is entitled to payment under the mechanic’s lien law. See Kleinman v. Bal Harbour Towers, Inc., Fla. 1967, 198 So. 2d 830.

Accordingly, the judgment against appellants H. McGuire and Marilyn McGuire, his wife, and Royal Globe Insurance Company, is reversed with directions to enter judgment in favor of appellants.

WALDEN, C. J., and OWEN, J., concur.


author: MAGER, Judge.

text:
    Evelyn FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 75-243.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Richard L. Jorandby, Public Defender, and James R. Bean, III, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   MAGER, Judge.

Upon due consideration of the briefs and record on appeal we are of the opinion that the legal issues raised in this appeal have been laid to rest by the Supreme Court in its recent decisions of State v. Jones, Fla., 327 So.2d 18, opinion filed January 14, 1976 and Ivey v. State, Fla., 327 So.2d 219, opinion filed February 11, 1976.

These decisions essentially hold that trial courts have both the general and specific authority to impose a split sentence probation alternative, i. e. imprisonment as condition for probation; and that upon a finding that probation has been violated trial courts are authorized to impose any sentence that might have been originally imposed. State v. Jones, supra.

In the instant situation appellant, in 1971, was originally placed on probation with six months incarceration in the county jail as a condition of said probation for the offense of breaking and entering with intent to commit a felony. In 1974, upon finding that appellant violated the terms and conditions of probation the court imposed an 8-year sentence. No appeal was taken from that order; instead appellant filed a motion to vacate and set aside sentence challenging the split sentence probation alternative which motion was denied resulting in the instant appeal.

Although we conclude that the issues raised are without merit because of the above cited cases, we note that the record reflects that appellant was not given credit for time spent in the county jail pursuant to the split sentence probation order which credit is required under the aforementioned cases. Accordingly, the cause must be remanded for the purpose of giving appellant credit for time served in the county jail as a special condition of the initial probation sentence; in all other respects the judgment below is affirmed.

In passing we cannot help but observe what appears to this court to be the imposition of an unduly harsh sentence under the circumstances, i. e. eight years in the state prison. At the time of the commission of the offense and the entry of probation, appellant was seventeen years old; at the time of the revocation of her probation she was twenty years old. The stated basis for the order of revocation was appellant’s failure to submit one of the written monthly reports; failure to remain gainfully employed; and the failure to report to her probation supervisor. No criminal activity was indicated.

Although the transcript of the probation revocation hearing is contained in the record on appeal, the sufficiency of the evidence to support the revocation was not raised on direct appeal nor in this appeal. Therefore, it is not appropriate for the court to consider this issue nor can we inquire into the legality of a sentence that is within the limits provided by law. Nevertheless, we are not precluded from commenting on what the record reflects, albeit gratuitous or dicta; in this regard, we wonder whether society and the defendant are best served by the particular sentence imposed on the basis of the “violations” involved.

We realize that we do not view the particular case from the same vantage point as the trial court; our analysis is based on what is often referred to as the “cold-type transcript”. As such, our comments covering the severity of sentence are colored by a form of detached objectivity that may tend to overlook pragmatic considerations. Hopefully, however, this detachment (and its ensuing pronouncements) will serve to further — rather than hinder — the cause of justice. Having sufficiently belabored the point and in recognition of our own appellate limitations which is of little comfort to the defendant, we affirm and remand the cause for further proceedings consistent herewith.

AFFIRMED, in part; REVERSED, in part, with directions.

WALDEN, €. J., and CROSS, J., concur.


text:
    E. Paul WININGER, Appellant, v. Rudolph LEOPOLD et al., Appellees.
    No. 75-702.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Vincent Meade, Jr., Fort Lauderdale, for appellant.
    John A. Thabes, of Saunders, Curtis, Gi-nestra & Gore, Fort Lauderdale, for appel-lees-Leopold.
   PER CURIAM.

This is an appeal of a summary final judgment entered in favor of appellees, Rudolph Leopold, Johanna Leopold, Theodore Andrews and Mary L. Andrews, and against appellant, E. Paul Wininger, in an action to determine title to a certain parcel of property.

The pleadings and affidavits reveal that there is a genuine issue of material fact precluding summary judgment; specifically, whether the deletion of appellant’s name from a warranty deed dated June 3, 1969 conveying the property occurred prior to or after the delivery of said deed. Since fact issues exist, summary judgment was prematurely entered and we, therefore, reverse and remand for further proceedings consistent with the views herein expressed. Rule 1.510(c) Fla.RCP (1975); Leaks v. Adeimy, 195 So.2d 47 (Fla.App. 1967).

Reversed and remanded for further proceedings.

CROSS and DOWNEY, JJ., and SCHULZ, GEORGE E., Associate Judge, concur.


author: PER CURIAM. MAGER, Judge

text:
    Herman BIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 75-407.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.

      Richard L. Jorandby, Public Defender, and Maxine V. E. Reynolds, Sp. Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged with possession of burglary tools proscribed by Fla.Stat. § 810.06 (1973). Upon review of the briefs and record we conclude that the evidence was insufficient to support a finding that the common tools found in the possession of appellant were then possessed “with intent to use or employ . . . the same [in a burglary].” The judgment is reversed and the court directed to discharge appellant.

REVERSED and REMANDED.

CROSS and OWEN, JJ., concur.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting).

The order of the trial court adjudicating the defendant guilty of possession of burglary tools best reflects the essence of my dissent and is hereinafter set forth:

“The State charged that Mr. Biggs and a co-defendant, Richard Lee Harvey, possessed burglary tools on the 14th day of June, 1974. Earlier this year Mr. Biggs’ co-defendant was tried by a jury and found not guilty. Mr. Biggs waived Trial by Jury and proceeded to trial on Friday, November 15th, 1974.
“The testimony reflected that Mr. Biggs was the driver of a Pontiac vehicle which was observed on a rural access road leading to a business known as the Pineridge Nursery from a highway west of Boca Raton, Palm Beach County, and known as Powerline Road. The officer testified that he observed Mr. Biggs’ Pontiac and a Chevrolet vehicle apparently parked together at around 2:30 a. m. on the morning of June 14th.
“The officer endeavored to stop the two cars after they left the rural access road and turned south on Powerline Road. He stopped the Pontiac, but, because he was unaccompanied by a supporting vehicle, there was not another car to stop the Chevrolet and this second car turned on the highway and proceeded north.
“The Deputy instructed Mr. Biggs and his passenger to remain at the scene and went in pursuit of the Chevrolet, which subsequently drove off of the road. The two occupants of the Chevrolet fled and were not apprehended.
“The Deputy then proceeded south only to find that the Pontiac was underway in a southerly direction once again. He radioed ahead to the Broward County Sheriff’s Office and they stopped the Pontiac vehicle and Mr. Biggs.
“From the Pontiac the officer retrieved two pairs of gloves, screwdrivers, a knife and pliers, all from the floorboard section of the passenger side of the vehicle. The officer also found a walkie-talkie on the passenger side of the Pontiac. A corresponding walkie-talkie was taken from the Chevrolet. The officer testified that both walkie-talkies were in working order.
“From the trunk of the Pontiac the officer secured tin cutters and large bolt cutters.
“The defendant’s testimony was that he believed the tools and gloves in the front seat were the property of his companion and that the walkie-talkie was the property of his little brother. He stated that the tin cutters and bolt cutters in his trunk were his equipment which he used in his part-time work at the Acme Scrap Metal business and the May Air Conditioning business, both of which establishments are located near to his residence in Pompano in Broward County.
“The defendant’s argument seems to be based primarily on the fact that in order to be guilty of this particular offense, the State must establish that the tools are associated with some immediate or nearby illegal activity either past or threatened.
“The defendant relied on the following cases: Burnette v. State, 258 So.2d 470 (3rd DCA 1972); Mesenbrink v. State, 231 So.2d 852 (3rd DCA 1970); Diaz v. State, 82 So.2d 135 (Fla. 1955) (Chief Justice Drew’s dissenting opinion); Rinehart v. State, 114 So.2d 487, (2nd DCA 1959) and Foster v. State, 286 So. 2d 549 (Fla. 1973).
“The defendant’s emphasis is that in the possessory offense here under consideration, it is of the essence that the evidence justify the trier of facts in the finding that the accused possessed the tools in question with the intent to employ them in the commission of burglary or related crime.
“The flight of an accused shortly after a crime is committed permits the trier of the fact to reach an inference that the accused was implicated therein; this is an inference and not a presumption. 13 Fla.Jur. Evidence, §§ 95 and 138. As Mr. Justice O’Connell quoted from an earlier Florida case in Daniels v. State, 108 So.2d 755, 760 (Fla. 1959):
'* * * The rule is that, when a suspected person in any manner endeavors to escape, or evade a threatened prosecution, by flight, concealment, resistance to a lawful arrest, or other ex post facto indication of a desire to evade prosecution, such fact may be shown in evidence as one of the series of circumstances from which guilt may be inferred. (Citations omitted)’
“While the circumstances of the defendant’s unrebutted testimony about the presence of the tools in his car and the nature of his work and the fact that his co-defendant has been found not guilty by a trial jury are all factors which weigh in his favor, I am persuaded beyond a reasonable doubt that the State has overcome its burden of proving that this defendant had a fully formed, conscious intent and purpose to use or employ, or to allow some other person to use or employ, the implements disclosed by the evidence for the purpose of cutting through, forcing or breaking open some building, vault, safe or other depository in order to steal therefrom money or property.
“In addition to flight on the part of the defendant is the successful flight and concealment of the parties in the Chevrolet vehicle and, most significantly of all, perhaps, the presence of the two operating walkie-talkies, one of which was found in each car. The testimony of the defendant that he was hunting in the vicinity of this nursery for rabbits is not creditable in the view of the Court.
“This Court is not unmindful that the doctrine of constructive possession is undergoing appellate change and metamorphosis; see, for example: Thomas v. State, 297 So.2d 850 (4th DCA 1974) and Atkins v. State and Mann v. State, Cases 73-1311 and 73-1312, 4th DCA, Opinion filed October 18th, 1974 [301 So.2d 459],
“Still, it continues to be the law of this State that the trier of the fact can find that possession is either sole or joint.
“ACCORDINGLY, the Court finds that the defendant is guilty beyond all reasonable doubt of possession of burglary tools as charged in the Information.
Based on the foregoing I would affirm.


text:
    Madeline M. OEST, Appellant, v. Henry OEST, Appellee.
    No. 75-616.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    William M. Layton, of Gamot & Stau-der, West Palm Beach, for appellant.
    Robert H. Springer, of Kohl, Springer, Springer & Vassallo, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

WALDEN, C. J., and CROSS, J., concur.

MAGER, J., dissents.

MAGER, Judge

(dissenting):

The record contains sufficient evidence bearing upon the health and employment prospects of the appellant-wife to support her claim for permanent alimony. Therefore, the award of rehabilitative alimony under these circumstances was an abuse of discretion and was not consistent with the rationale expressed in Patterson v. Patterson, 315 So.2d 104 (Fla.App.1975) and Herbert v. Herbert, 304 So.2d 465 (Fla. App.4th 1974). I would reverse and remand with instruction that the trial court enter judgment entitling the wife to permanent alimony.


text:
    Lisa Marie WOLFF, Appellant, v. Richard R. WOLFF, Appellee.
    No. Y-76.
    District Court of Appeal of Florida, First District.
    Feb. 25, 1976.
    Rehearing Denied April 15, 1976.

      John W. Tanner, Daytona Beach, for appellant.
    Richard Kane, Daytona Beach, for ap-pellee.
   BARKDULL, THOMAS H., Jr., Associate Judge.

By this appeal, we are called upon to review the correctness of a final judgment rendered in a marriage dissolution proceeding. The only issues preserved for review are the award of the custody of a 28-month old little girl to her father. There are other points urged for reversal by the appellant hut, in light of the ultimate disposition of this appeal, we find they are either moot or without merit. See: Mueller v. Mueller, Fla.App. 1975, 307 So.2d 195.

In his final judgment, the trial judge awarded custody of the 28-month old daughter to the father although finding both parties to be fit parents. Said award of custody was, in part, predicated upon a finding that the mother was about to depart the State. Thereafter, the mother timely filed a petition for rehearing, pointing out that she had changed her plans on relocation and would remain in the State of Florida. Notwithstanding this, the trial judge refused to modify his custody award. This has been urged as error by the appellant, because one of the findings upon which he supported the original award of custody was no longer correct as a matter of fact.

We reverse, and return the matter to the trial judge for purposes of considering the proper custody of this female child of tender age, in light of the mother’s pronounced intention to remain in the State of Florida, and to also take into consideration the principles enunciated by the Supreme Court of Florida in Dinkel v. Dinkel, Fla. 1975, 322 So.2d 22, which was not available to the trial judge at the time of the entry of the final judgment or the order denying the petition for rehearing. The appellee relies heavily on Anderson v. Anderson, Fla.App. 1974, 289 So.2d 463, cert. discharged Fla., 309 So.2d 1, but we do not find that the factual situation in the present case, as indicated by the findings of fact by the trial judge, bring this cause within the factual background of Anderson v. Anderson, supra. Therefore, we find the cases distinguishable.

Reversed and remanded, with directions.

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

ON PETITION FOR REHEARING

BARKDULL, THOMAS H., Jr., Associate Judge.

The appellee having filed a petition for rehearing and a motion for clarification of this court’s opinion dated February 25, 1976, which motion has been joined in by the appellant; the court having further considered the record and opinion, the petition for rehearing be and the same is hereby denied. But, in order that there be no doubt as to the intention of this court’s earlier opinion the same is hereby clarified by remanding the cause to the trial judge for the purpose of reconsideration of the entire award of custody of the minor child.

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

       * * * * *
      “4. An award of permanent custody to the petitioner would mean the child would be moved to Gaithersburg, Maryland, where petitioner hopes to live with her fiance, C. W. Shuffle, after their marriage. This would substantially impede reasonable visitation by the respondent. On the other hand, an award of permanent custody to the respondent forces a difficult decision upon the petitioner between her marital plans and close proximity to her infant daughter. The Court must resolve this unfortunate impasse.”
      * * * * *


author: SMITH, Judge.

text:
    HUMANA OF FLORIDA, INC., a Florida Corporation, Appellant, v. O. J. KELLER, as the Secretary of Health and Rehabilitative Services of the State of Florida and Medical Center of Kissimmee, Inc., a Florida Corporation, Appellees.
    No. Z-223.
    District Court of Appeal of Florida, First District.
    April 2, 1976.
    F. Perry Odom, Richard W. Ervin and Robert J. Angerer, of Ervin, Varn, Jacobs & Odom, Tallahassee, for appellant.
    E. Harper Field of Keen, O’Kelley & Spitz and James N. McConnaughhay, Tallahassee, William P. Wooden, of Wooden, Stark, McLaughlin & Sterner, Indianapolis, Ind., and Robert M. Eisenburg, Jacksonville, for appellees.
   SMITH, Judge.

Humana of Florida, Inc., seeking declaratory and injunctive relief, complained in the circuit court that a bureau under the jurisdiction of defendant Secretary of the Department of Health and Rehabilitative Services had issued a certificate of need for construction of defendant Medical Center of Kissimmee, Inc.’s new 132-bed hospital notwithstanding that no public hearing on the question of necessity has been had. Secs. 381.494(5) (b), (6)(b), F.S.1973. The circuit court dismissed Humana’s complaint on the ground that Humana’s only remedy was to file a petition for certiorari in a district court of appeal, as provided by § 120.31(1), F.S.1973, within 30 days after the certificate issued. Rule 4.5c(l), F.A.R. Humana appeals, insisting that an alternative remedy of injunctive relief is available to it under ch. 120, F.S.1973.

The Health Facilities Planning Act, § 381.493-.497, F.S.1973, to promote the coordination of capital expenditures for health care facilities, prescribes a uniform method of processing applications by health care institutions desiring to expand health care facilities in a local community. The procedural protections afforded existing institutions and other interested parties include a public hearing by the appropriate areawide planning council, in which applicants and other interested parties are given reasonable notice and are allowed “to present their positions”, after which written findings and recommendations by the council are filed as a public record. Sec. 381.494(5). The process culminates in the issuance or denial of a certificate of need. Sec. 381.494(6) (d). Because no areawide planning council existed for the Kissimmee area, it became the responsibility of the bureau of community medical facilities planning to request that the bureau of comprehensive health planning process the application and provide the prescribed public hearing. Sec. 381.494(6) (b). No hearing was afforded in this instance, but a certificate of need nevertheless issued.

The Secretary urges that the public hearing procedure is not mandatory and that, in the absence of a hearing, the expiration of 90 days from the filing of an application for certification operates as approval of the application. See § 381.-494(5)(e). We reject that argument. A statutory requirement for notice and hearing cannot be mooted by bureau delay or evasion.

The Administrative Procedure Act, prior to its amendment effective January 1, 1975, provided for review of quasi-judicial orders of administrative agencies by certio-rari in the appropriate district court of appeal. Sec. 120.31(1), F.S.1973. The Secretary urges that Humana, not having timely sought certiorari review, lost whatever remedy it may have had. But the hallmark of a quasi-judicial order is that it is entered upon the “record of ... an adversary hearing pursuant to due and proper notice in which the rights of the parties affected are adjudicated . . . .” Bay Nat’l Bank and Trust Co. v. Dickinson, 229 So.2d 302, 306 (Fla.App. 1st, 1969). It is precisely because no hearing was had in this matter that the issuance of the certificate of need lacked quasi-judicial character. It therefore was “appropriate” to attack it “by mandamus, prohibition or injunction.” Sec. 120.31(4), F.S.1973; Teston v. City of Tampa, 143 So.2d 473, 476 (Fla.1962):

“If the order is quasi-judicial, that is, if it has been entered pursuant to a statutory notice and hearing involving quasi-judicial determinations, then it is subject to review by certiorari. De Groot v. Sheffield, Fla., 95 So.2d 912; Bloomfield v. Mayo, [119 So.2d 417 (Fla.App. 1st, I960)]. Otherwise, remedy by equity suit and injunction is appropriate.”

In the circumstances alleged by Humana’s complaint, the circuit court was the appropriate forum to evaluate Hu-mana’s asserted right to an administrative hearing on the question of need. If Hu-mana’s position is upheld, an injunction is appropriate. Because Humana’s entitlement to equitable relief is not fully developed on this record, we intimate no view of whether Humana may be estopped from complaining by having had actual notice of the pending certification and of imminent construction of the facility, and by having inordinately delayed its complaint.

REVERSED.

BOYER, C. J., and COX, JOHN S., Associate Judge, concur.


text:
    DIVISION OF CORRECTIONS, STATE PAROLE AND PROBATION COMMISSION of the State of Florida, Appellant, v. Phillip TAMARGO, Appellee.
    No. 75-1102.
    District Court of Appeal of Florida, Second District.
    March 24, 1976.
    Rehearing Denied April 21, 1976.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Howard L. Garrett, of Garrett & Garrett, Tampa, for appellee.
   PER CURIAM.

The Division of Corrections, State Parole and Probation Commission of the State of Florida, appeals from an order granting relief under a petition for writ of habeas corpus brought by appellee, Phillip Tamargo.

On February 25, 1971, appellee had been sentenced to 5 years imprisonment. On February 1, 1974, he was released under “mandatory conditional release” pursuant to Fla.Stat. § 944.291 (1975). Appellee had accumulated 540 days of “statutory” gain time and 137 days of “extra” gain time. He was also given an additional 74 days of “terminal” gain time. At the time of his release appellee refused to sign a consent certificate or to verbally agree to the conditions of the mandatory conditional release. On May 5, 1975 he was arrested for a violation of the terms of his release.

In his petition for habeas corpus, appel-lee contended that Fla.Stat. § 944.291 (1973), which purported to give the Parole and Probation Commission control over him from the time of his release until the expiration of his sentence was inapplicable, unconstitutional, or illegal as it applied to him. This was because he had never consented to the release.

The circuit court found that appellant had not consented to his release as required by Fla.Stat. § 947.17 (1973). The court also concluded the mandatory conditional release provision was inherently wanting in fairness in that prisoners who had accumulated less than 180 days gain time were excluded. This resulted in model prisoners being supervised while those who had failed to accumulate 180 days gain time were released without supervision. Appellant was ordered to release ap-pellee at the expiration of his sentence, less statutory and extra gain time. Appellant was free to exercise its discretion in revoking the 74 days of terminal gain time.

We reverse. The reliance on the failure of appellee to consent to his release as a basis for refusing to permit revocation of more than the terminal gain time is based on the erroneous assumption that ap-pellee was on parole. Consent was required for a person to be placed on parole under § 947.17(1), Fla.Stat. (1973) , However, appellee was not on parole. Under Fla.Stat. § 944.291 (1973) a prisoner released early because of statutory gain time was to “be deemed as if released on parole” until the expiration of his sentence. Mandatory conditional release is clearly distinguishable from parole in that it is a matter of right. The Division of Corrections computes a prisoner’s gain time which is partially prescribed by statute and release is mandatory. Parole is at the discretion of the Parole and Probation Commission. See Birch v. Anderson, 1965, 123 U.S.App.D.C. 153, 358 F.2d 520, for a discussion of a similar federal statute.

Apparently the trial court did not actually find the exclusion of prisoners with less than 180 days gain time unconstitutional but merely declined to apply it to appellee due to its “inherent unfairness.” The exclusion in the federal statute, 18 U. S.C. § 4163, has been justified on the grounds that 180 days is insufficient time for any possible rehabilitation and any revocation of release at that time serves only to disrupt the “civilian” life of the releasee and embitter him. Birch v. Anderson, supra. There being a valid basis for the distinction, its “fairness” is a consideration for the legislature.

Accordingly, the order appealed from is reversed.

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

      . The consent requirement has been abolished. Fla.Stat. § 947.17 (1975).

      . Neither party noted that the exclusionary provision was revised effective July 1, 1974. The statute now requires supervision of re-leasees except those “who, at the time of sentence, could not have earned at least one hundred eighty (180) days’ gain time.” Fla.Stat. § 944.291(2) (1975) (Emphasis added).


author: HENDRY, Judge.

text:
    The STATE of Florida, Appellant, v. Daniel ANDERSON, Appellee.
    No. 75-1043.
    District Court of Appeal of Florida, Third District.
    March 30, 1976.
    Richard E. Gerstein, States Atty., and John Lipinski, Asst. States Atty., for appellant.
    Phillip A. Hubbart, Public Defender, and Bennett A. Brummer, Asst. Public Defender, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   HENDRY, Judge.

Appellant, the prosecution below, brings this appeal from an order of the trial court dismissing appellee as a defendant in a cri-ninal case for appellant’s failure to disclose the name of a confidential informant.

On September 23, 1974, an information was filed charging appellee with numerous narcotics offenses. Subsequently, appellee filed an unsworn motion to compel the disclosure of the identity of a confidential informant. After a hearing on the motion, the trial court entered an order dated May 2, 1975, requiring the disclosure. On May 28, 1975, appellant stated to the trial court that it would not abide by the order for disclosure; and, on the same day, the trial court on its own motion dismissed the case as to appellee. From the order of dismissal, appellant brings this appeal.

Appellant contends that the trial court erred in entering the order because, basically, (1) appellee did not properly carry the burden of proof or set forth allegations sufficiently to warrant a dismissal for appellant’s failure to disclose the identity of the confidential informant, and (2) the trial court denied it the opportunity to contest the unsupported allegations of appellee which resulted in the trial court’s order.

Appellee contends, among other things, that the trial court’s order came to this court on appeal clothed with a presumption of correctness and the record on appeal supports the trial court’s order. See, e. g., Rodriquez v. State, Fla.App.1966, 189 So. 2d 656; and Savage v. State, Fla.App.1963, 156 So.2d 566.

The general rule in respect to the identity of a confidential informant is that the state has a privilege of nondisclosure, and the burden is on a defendant claiming an exception to the rule to show why disclosure should be compelled. See State v. Davis, Fla.App.1975, 308 So.2d 539; and Rule 3.220(c)(2), Florida Rules of Criminal Procedure, 33 F.S.A. Among the fac-to,rs which might require disclosure are whether a defendant’s identity is in issue and whether the informant was an active participant in the offense charged against a defendant. See Monserrate v. State, Fla.App.1970, 232 So.2d 444; and Spataro v. State, Fla.App.1965, 179 So.2d 873.

In the instant appeal, the order of the trial court requiring disclosure, upon which the trial court based its order of dismissal reads in pertinent part as follows:

“This cause having come on to be heard on the defendant’s Motion to Compel Identity of Confidential Informant and the Court being fully advised that:
“1. The identity of the defendant is in issue.
“2. Numerous judicial hearings were had by this Court and its predecessor Court to determine the person before the Court alleged to be James Williams was in fact the defendant in this case.
“3. The confidential informant was a witness to the acts alleged in the information and the lack of his testimony would be prejudicial to the defendant on the issue of identity and the other alternative defenses available to the defendant and cited in his motion.
“It is hereby
“CONSIDERED, ORDERED AND ADJUDGED, pursuant to the authority of English v. State, 301 So.2d 813 (Fla. 2nd dist. 1974), that the State of Florida produce the name and last known residence and business address of the confidential informant.
“DONE AND ORDERED this 2 day of May, 1975, nunc pro tunc to the 18th day of April, 1975.”

It is apparent from this order that the trial court based its decision on judicial proceedings not only shown within the record on appeal, but also on certain judicial proceedings which are not shown within the record on appeal. Thus, while appellant has filed an incomplete record, it seeks to reverse the trial court on the grounds that the record is insufficient to support the trial court’s actions. Further, appellant seems to concede, by the following statement on page 19 of its brief, that the question of the identity of appellee was raised in the trial court:

“It is true that there was a question of identity raised in the lower court on April 11, 1975. It appears that the Defendant was arrested as being one James Williams. It also appeared that Judge Whitworth determined he was not James Williams and was released.” [References to record on appeal deleted.]

The rule is that questions of sufficiency of evidence cannot be raised by an appellant where he files an incomplete record. See Nelson v. State, Fla.1956, 85 So.2d 832; and Royal Flair, Inc. v. Cape Coral Bank, Fla.App.1971, 251 So.2d 895.

We have reviewed the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law and have concluded no reversible error has been shown. This case is distinguishable from State v. Jones, Fla. App.1975, 323 So.2d 595, where the record disclosed no evidentiary showing was made before the trial court that the testimony of the confidential informant would have been of such essential relevancy as to justify a required disclosure. Here, the record on appeal, to the extent that it is complete, supports the trial court’s order of dismissal; to the extent that the record is not complete, for the reasons stated and upon the authorities cited, we must presume that the trial court’s order of dismissal is correct. Therefore the order appealed is affirmed.

Affirmed.


text:
    DANIELI CORPORATION, a Florida Corporation, et al., Petitioners, v. Angelo RUSSO, Respondent.
    No. 75-2164.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    John R. Hargrove, of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for petitioners.
    Paul B. Erickson, of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for respondent.
   PER CURIAM.

Petitioners, Danieli Corporation, Danieli Marketing and June Martino, have filed a petition for writ of certiorari seeking review of an order denying protective relief and requiring production of income tax returns and other financial data.

A review of the proceedings reveals that except as to petitioner Martino, all of the points raised in petitioners’ brief deal with objections never presented to or ruled upon by the trial court; under these circumstances it cannot be said that petitioner has demonstrated his entitlement to extraordinary relief by certiorari. See 2 Fla.Jur., Appeals, § 82; 5 Fla.Jur., Certiorari, § 26; Dairyland Insurance Company v. McKenzie, 251 So.2d 887 (Fla.App. 1st 1971). However, with respect to petitioner Martino the production of her income tax returns is irrelevant to any of the issues framed in the complaint and the required production thereof constituted a departure from the essential requirements of law. Tallahassee Democrat, Inc. v. Pogue, 280 So.2d 512 (Fla.App. 1st 1973); Ernst & Ernst v. Reedus, 260 So.2d 258 (Fla. App. 3d 1972); see also Trawick’s Fla. Practice & Procedure, 1975 ed., §§ 16-3 and 16-10.

Accordingly, certiorari is denied as to petitioners Danieli Corporation and Dani-eli Marketing. Certiorari is granted as to petitioner Martino and the challenged order is quashed insofar as it denies protection of the income tax returns of petitioner Martino.

CROSS and MAGER, JJ., concur.

WALDEN, C. J., concurs in part; dissents in part, with opinion.

WALDEN, Chief Judge

(concurring in part and dissenting in part) :

I concur in the denial of certiorari as to Petitioners Danieli Corporation and Dan-ieli Marketing. I dissent as concerns granting certiorari to Petitioner Martino. It is my view that from the pleadings the discovery of her income tax return is altogether relevant and legally proper.

Thus, I would deny certiorari as to all petitioners.

      . The complaint seeks damages for an alleged breach of contract by the corporate petitioners and seeks compensatory and punitive damages against all petitioners for the alleged willful misrepresentation as to the financial stability of the corporate petitioners. The discovery of the personal income tax return of petitioner Martino has no relevancy whatsoever to these issues.

      . Petitioners were not represented by the present counsel on appeal.


text:
    Stephen Joseph MARUCA et al., Appellants, v. The STATE of Florida, Appellee.
    No. 75-878.
    District Court of Appeal of Florida, Third District.
    April 6, 1976.

      Varón, Stahl & Kay, Hollywood, for appellants.
    Robert L. Shevin, Atty. Gen. and Ira Loewy, Asst. Atty. Gen., and Steven D. Ginsburg, Legal Intern, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

An information was filed charging Stephen Joseph Maruca, Joseph Nunze Marrow and Harry Williams Roth in Count One with conspiracy to commit breaking and entering a building and grand larceny; in Count II with attempted breaking and entering a building; and in Count III with possession of burglary tools. The defendants were tried without a jury and found guilty as charged on all counts of the information. Each defendant was sentenced to concurrent five year terms in the state penitentiary on each of the three counts.

The evidence showed that on January 15, 1975, at approximately 8:15 p. m., Glen Lehman, a North Miami Beach fireman, while returning from a call, observed two men standing at the door of a closed and darkened stamp and coin store located in the area of 163rd Street and 18th Court, “doing something with the lock.” He observed a third man “standing down the street just a little ways from the doorway, you know, looking around just walking a little bit and looking in different directions.” Lehman stopped by the North Miami Beach police station to report the possibility that the men were breaking in. He identified the three men as all wearing jackets and he stated that one of the men was white, but he was unable to see whether the other two were white or black. The police put out a BOLO (be on the lookout) call and within minutes, Officer Washa arrived at the scene. He stopped the three defendants, who were wearing jackets, near the stamp store and asked what they were doing. They claimed to be walking around the block. Officer St. Germain arrived shortly thereafter and asked the three men to wait while Officer Washa checked the building. The building check revealed that one of the locks on the stamp store door was missing and that part of it was on the ground. A screwdriver was found near the broken lock. Officer St. Germain, who had been standing with the three men, had found a vice grip which was apparently dropped by Marrow. St. Germain then proceeded to pat down Marrow to see if he had a weapon, and found a radio scanner tuned to the North Miami Beach Police frequency. There was also a pair of golf gloves in Marrow’s pocket. Later, when the police searched the cars driven to the area by Marrow and Roth, alleged burglary tools were discovered in both cars.

The defendants moved to suppress the evidence seized as a result of the searches of their persons and of the cars. Following a lengthy hearing, the motion was denied, the cause proceeded to a non-jury trial and all three defendants were found guilty, convicted and sentenced.

The thrust of their appeal is that the trial court erred in denying their motion to suppress because without a description of the alleged attempted burglars, there was no probable cause to arrest these three defendants. If there was no probable cause, then the arrest was illegal, the body search was illegal and the evidence seized therefrom should be suppressed.

As stated in United States v. Rias, 5th Cir. 1975, 524 F.2d 118, 120-121:

“The courts have recognized the right of a police officer to stop and detain an individual under certain circumstances. E. g., Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. McCann, 465 F.2d 147 (5th Cir. 1972), cert. denied sub nom., Kelly v. United States, 412 U.S. 927, 93 S.Ct. 2747, 37 L.Ed.2d 154 (1973). The circumstances required to justify such action, however, must be sufficient to enable a police officer reasonably to suspect that the particular individual is involved in criminal activity. United States v. McCann, supra, at 158; see Terry v. Ohio, supra, 392 U.S. at 30, 88 S.Ct. 1868, 20 L.Ed.2d at 911. In Adams, the Court stated: ‘A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. 407 U.S. at 146, 92 S.Ct. at 1923, 32 L.Ed.2d at 617 .. . .”

In our opinion, the facts known to the officers at the time Officer Washa stopped the defendants and St. Germain arrived on the scene, were sufficient to warrant the conclusion that these three men were involved in criminal activity. Compare the facts sub judice with those in United States v. Rias, supra.

Thus, with grounds sufficient for suspicion, the officers had cause to stop the men. Therefore, the search was legal and the fruits thereof were not subject to a motion to suppress. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441. Accordingly, the convictions are affirmed.

The remaining points on appeal will not be discussed as they are without merit.

Affirmed.


text:
    LAKE FOREST, INC. v. BON MARCHE HOMES, INC. BON MARCHE HOMES, INC. v. LAKE FOREST, INC.
    No. 57732.
    Supreme Court of Louisiana.
    April 9, 1976.
   In re Bon Marche Homes, Inc. applying for Writ of Review.

Application not considered. Aside from the untimeliness of the application (see Rule X5(b) as amended effective January 15, 1976), the issues raised herein are reviewable by an appeal taken from the trial judgment of the trial court.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Willie SEALS and Leroy Smith.
    No. 57845.
    Supreme Court of Louisiana.
    April 13, 1976.
   In re: Willie Seals and Leroy Smith applying for Supervisory Writs, Writ of Certiorari and stay order. ■

Writ granted. The ruling of the trial judge is set aside and the appeal is maintained in forma pauperis.

SUMMERS, J.,

dissents. I do not agree that the ruling of the trial judge should be overturned by this ex parte chamber order without a hearing.


text:
    Mrs. Emmett R. FLAHERTY v. GULFCO LIFE INSURANCE CO.
    No. 57761.
    Supreme Court of Louisiana.
    April 13, 1976.
   In re: Gulfco Life Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Avoyelles. 327 So.2d 436.

Writ denied. On the facts found, the result is correct.

SUMMERS, J., is of the opinion the writ should be granted.

CALOGERO, J., dissents from the denial.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. DUGAS & LEBLANC, LTD., et al.
    No. 57744.
    Supreme Court of Louisiana.
    April 13, 1976.
   In re: Dugas and LeBlanc, Ltd., et al, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Assumption, 327 So.2d 594.

Writ denied. The result is correct.

SUMMERS, J.,

is of the opinion the writ should be granted.


text:
    FIRST FEDERAL SAVINGS AND LOAN ASSN. OF CONCORDIA, VIDALIA, Louisiana v. Clebert C. SMITH, in his Capacity as Commissioner of Financial Institutions, State of Louisiana and Monroe Bldg. and Loan Assn., Monroe, Louisiana.
    No. 57736.
    Supreme Court of Louisiana.
    April 9, 1976.
   In re United Federal Savings and Loan Assn, formerly First Federal Savings and Loan Assn, of Concordia, Vidalia applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 327 So.2d 657.

Writ denied. The result is correct.

SUMMERS, J.,

is of the opinion the writ should be granted. There is a serious contention that La.R.S. 6:852(C) is unconstitutional as an unlawful delegation of legislative authority.


text:
    STATE of Louisiana v. J. R. DERBES.
    No. 57765.
    Supreme Court of Louisiana.
    April 13, 1976.
   In re: J. R. Derbes applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.

CALOGERO, J., takes no part.


author: TATE, J.,

text:
    Earl BRENNECKE et al. v. TRANSPORTATION INSURANCE COMPANY et al.
    No. 57754.
    Supreme Court of Louisiana.
    April 13, 1976.
   In re: Earl Brennecke, et al, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 326 So.2d 580.

Writ refused. The issues are factual. On the facts found by the Court of Appeal, there is no error of law in its judgment.

TATE, J.,

is of the opinion that a writ should be granted in view of the dissenting opinion, to determine whether the trier of fact’s conclusion should not have been upheld, since not in manifest error.