author: ENGLAND, Justice.

text:
    RANDLE-EASTERN AMBULANCE SERVICE, INC., Petitioner, v. Elena VASTA, etc., Respondent.
    No. 51946.
    Supreme Court of Florida.
    May 18, 1978.
    Rehearing Denied July 24, 1978.
    Stephens & Schwartz and Richard M. Gale, Miami, for petitioner.
    Joe N. Unger of the Law Offices of Joe N. Unger, Miami, Podhurst, Orseck & Parks, Miami, and Wolfson, Diamond, Logan & Edge, Miami Beach, for respondent.
   ENGLAND, Justice.

Under the rules governing trial practice in Florida, a plaintiff may voluntarily dismiss his or her lawsuit at practically any time during the course of trial simply by announcing that fact. The effect of doing so is to terminate the litigation instantaneously, without prejudice however to plaintiff’s commencing a wholly new lawsuit against the same defendant if the right to do so has not been exercised before and is not barred by the statute of limitations.

The Third District Court of Appeal recently considered what would happen if a plaintiff who had taken a voluntary dismissal later realized that the opportunity to relitigate with the defendant was foreclosed, and attempted to correct the earlier tactical error by asking the trial judge for permission to be relieved of the dismissal. The district court held that plaintiff could be relieved of her dismissal, although it recognized that the Fourth District Court of Appeal had come to the opposite conclusion some six years earlier. At the aggrieved defendant’s request, we granted certiorari to review the district court’s decision in order to reconcile the conflicting appellate decisions. Subsequent to the submission of the case here, the First District Court of Appeal rejected the view espoused by the Third District and adopted the view of the Fourth District.

The critical issue separating the district courts is whether a plaintiff’s volitional dismissal divests a trial court of jurisdiction to entertain a later request to be relieved from the dismissal. The Fourth District (now joined by the First District) has expressed the view that the trial court loses jurisdiction to proceed in any way beyond the announcement of dismissal, even though the trial judge might have pending, when the announcement of dismissal is made, a motion made by one of the parties which would conclude or resolve the litigation. The Third District’s contrary view is that the trial court retains jurisdiction, on the theory that the plaintiff’s voluntary dismissal merely provides a shortcut for terminating the proceeding which is tantamount to the entry of an order by the trial judge for the same purpose. Since the plaintiff’s dismissal is considered equivalent to a trial court’s order, the Third District views the act of the plaintiff as a “proceeding” from which our rules provide relief in cases of mistake, inadvertence, or excusable neglect.

The right to dismiss one’s own lawsuit during the course of trial is guaranteed by Rule 1.420(a), endowing a plaintiff with unilateral authority to block action favorable to a defendant which the trial judge might be disposed to approve. The effect is to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of “jurisdiction”. If the trial judge loses the ability to exercise judicial discretion or to adjudicate the cause in any way, it follows that he has no jurisdiction to reinstate a dismissed proceeding. The policy reasons for this consequence support its apparent rigidity.

Our rules prevent several filings and dismissals against a defendant for the same claim, and they provide authority for defendants to recoup their court costs when a voluntary dismissal has been taken. There is no recompense, however, for a defendant’s inconvenience, his attorney’s fees, or the instability to his daily affairs which are caused by a plaintiff’s self-aborted lawsuit. Nor is there any recompense for the cost and inconvenience to the general public through the plaintiff’s precipitous or improvident use of judicial resources.

The benefit of the dismissal privilege must carry with it commensurate responsibility — responsibility for counsel, as an officer of the courts, to ascertain the need for and the consequence of a voluntary dismissal before removing a client’s cause from the adjudicatory process which counsel has set in motion. Correlative with this responsibility must be the risk, like so many others which attend counsel’s judgmental decisions in the course of a trial, that the action taken may prove prejudicial to the ultimate success of the litigation. It has never been the role of the trial courts of this state to relieve attorneys of their tactical mistakes. The rules of civil procedure were never designed for that purpose, and nothing in Rule 1.540(b) suggests otherwise.

We approve the view of the First and Fourth District Courts of Appeal that a voluntary dismissal under Rule 1.420(a)(l)(i) divests the trial court of jurisdiction to relieve the plaintiff of the dismissal. The decision below is quashed and this case is remanded for proceedings consistent with this opinion.

It is so ordered.

OVERTON, C. J., and SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

      . Fla.R.Civ.P. 1.420(a)(1)(i).

      . Randle Eastern Ambulance Serv., Jnc. v. Vasta, 345 So.2d 1084 (Fla. 3d DCA 1977).

        . Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA 1970).

      . Art. V, § 3(b)(3), Fla.Const.

      . Anderson v. Lovejoy, 354 So.2d 951 (Fla. 1st DCA 1978), pending on cert., No. 53,472 (Fla.).

      . See Gate City, Inc. v. Arnold Constr. Co., 243 So.2d 637 (Fla. 4th DCA 1971). This view as to the effect of a voluntary dismissal was preferred by Massey and Klock in their 1972 survey of civil procedure developments. 26 U. Miami L.Rev., 469, 532 n. 424 (1972).

      . The district court below adopted the reasoning of its previous decision in Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970), in which the theory of continuing jurisdiction was first evolved.

      . Fla.R.Civ.P. 1.540(b).

      . Fla.R.Civ.P. 1.420(a)(1).

      . Fla.R.Civ.P. 1.420(d).

      . Fla.Bar Integr.Rule, preamble (b).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Barry William BRUNELLE, Appellant, v. STATE of Florida, Appellee.
    No. 52535.
    Supreme Court of Florida.
    May 26, 1978.
    Rehearing Denied July 24, 1978.
    Charles R. Stepter, Jr. of Fishback, Davis, Dominick & Simonet, Orlando, for appellant. y
    Robert L. Shevin, Atty. Gen., Tallahassee, ar.d Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This cause is before us on direct appeal from a final judgment of the Circuit Court of Orange County, inherently upholding the constitutionality of Section 787.02, Florida Statutes (1975). We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution. Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439 (Fla.1959).

Appellant was charged in a three count information with two counts of false imprisonment in violation of Section 787.02, Florida Statutes (1975), and one count of solicitation to commit prostitution or lewdness contrary to Section 796.07(3)(b), Florida Statutes (1975). After receiving a statement of particulars, the appellant filed three motions to dismiss directed to the information. The first motion sought dismissal on the grounds that the appellant had been illegally detained and arrested. Appellant then filed a motion to dismiss pursuant to Fla.R.Crim.P. 3.190(c)(4), alleging that there were no material disputed facts and the undisputed facts did not establish a prima facie case on any of the three counts. The final motion to dismiss filed by appellant was directed solely to the counts charging false imprisonment and alleged that Section 787.02, Florida Statutes (1975), is facially unconstitutional in that it is vague, indefinite and ambiguous. The trial court, following a hearing on the motions, entered an order denying all three motions, thus inherently upholding the constitutionality of Section 787.02, Florida Statutes (1975). The appellant thereafter pled nolo contendere to all three counts and was adjudicated guilty of each. On appeal, appellant assigns as error the trial court’s denial of his motions to dismiss.

Section 787.02, Florida Statutes (1975), provides:

“(l)(a) ‘False imprisonment’ means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against his will with any purpose other than those referred to in § 787.01.
“(b) Confinement of a child under the age of 13 is against his will within the meaning of this section if such confinement is without the consent of his parent or legal guardian.
“(2) Whoever commits the offense of false imprisonment shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.”

The appellant’s constitutional attack is directed at the language of subsection (l)(a) of the statute and is grounded in a comparison of the wording found in that subsection with the wording of subsection 787.01(l)(a), Florida Statutes (1975), enacted simultaneously with the statute in question, wherein the Legislature defined “kidnapping” as “forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority . . .” The gravamen of appellant’s argument is that the kidnapping statute is clearly written in the disjunctive with the adverbs “forcibly,” “secretly” and “threat” all modifying the verbs “confining,” “abducting” and “imprisoning”; that the false imprisonment statute transposes the words “threat” and “secretly”; and that this verbal transposition by the same Legislature which enacted the two statutes as part of a single act has created confusion and renders the false imprisonment statute vague and ambiguous because it is not possible to determine by reading the statute whether “force” or “threat” are always necessary elements when false imprisonment is charged.

The test to be employed in determining whether a penal statute is unconstitutionally vague or ambiguous and, thus, violative of due process was recognized by this Court in State v. Wershow, 343 So.2d 605 (Fla.1977), wherein, quoting from Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934), we opined:

“ . . . [A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”

From an examination of Section 787.02, Florida Statutes (1975), we hold that the wording of the statute is sufficiently explicit to inform those who are subject to its provisions what conduct on their part will render them liable to its penalties. More specifically, we find that subsection (l)(a) of Section 787.02, Florida Statutes (1975), is not “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” A reading of subsection (l)(a) clearly indicates that it is written in the disjunctive with the adverbs “forcibly,” “threat” and “secretly” all being intended to modify the verbs “confining,” “abducting,” “imprisoning” and “restraining.” The appellant’s contention that the transposition of “threat” and “secretly” has created an unconstitutionally vague and ambiguous statute is simply without merit.

Appellant also argues that the trial court’s denial of his motions to dismiss pursuant to Fla.R.Crim.P. 3.190(c)(4) and on the grounds of illegal detention and arrest was error. We have carefully listened to oral argument, examined and considered the record in light of the briefs with the result that we find appellant’s remaining allegations of error to be without merit.

Accordingly, the judgment and sentence are affirmed.

OVERTON, C. J., and BOYD, ENGLAND and SUNDBERG, JJ., concur.

HATCHETT, J., concurs in result only.


author: ADKINS, Justice.

text:
    SPECIAL DISABILITY TRUST FUND, Petitioner, v. Alexander VAN GIESON, Broward County Transit Authority, Niagara Fire Insurance Company c/o Underwriters Adjusting Company and the Florida Industrial Relations Commission, Respondents. Alexander VAN GIESON, Cross-Petitioner, v. SPECIAL DISABILITY TRUST FUND, Broward County Transit Authority, Niagara Fire Insurance Company c/o Underwriters Adjusting Company and the Florida Industrial Relations Commission, Cross-Respondents.
    No. 52621.
    Supreme Court of Florida.
    May 31, 1978.
    Rehearing Denied July 24, 1978.
    Steven W. Huss and Kenneth H. Hart, Jr., Tallahassee, for Special Disability Trust Fund.
    Carl E. Jenkins, Stephen W. Bazinsky of Walton, Lantiff, Schroeder & Carson, Fort Lauderdale, for Broward County Transit and Niagara Fire c/o Underwriters.
    Jay M. Levy of Nachwalter, Christie & Falk, Miami, for Alexander Van Gieson.
   ADKINS, Justice.

We have for review by certiorari an order of the Industrial Relations Commission affirming an order of the Judge of Industrial Claims which denied the Special Disability Trust Fund’s motion to be made or joined as a party to the claim of the injured employee against the employer/carrier when the employer/carrier’s claim of right to reimbursement was pending with the Fund at the time of the hearing on a proposed lump sum settlement. The Judge of Industrial Claims had noticed the Special Disability Trust Fund of the hearing on the proposed lump sum settlement.

The Industrial Relations Commission departed from the essential requirements of the law. Special Disability Trust Fund v. Tropicana Products, Inc., 358 So.2d 1 (Fla.1978). The order is quashed and this case is remanded for further consideration in accordance with the views expressed in Special Disability Trust Fund v. Tropicana Products, Inc., supra. Cross-Petition is denied.

OVERTON, C. J., and BOYD, ENGLAND and HATCHETT, JJ., concur.


author: SUNDBERG, Justice.

text:
    Hortensio DELGADO and Nellie Geraldine Delgado, his wife, Petitioners, v. Robert R. STRONG and Julie Y. Strong, his wife, Respondents.
    No. 52304.
    Supreme Court of Florida.
    June 8, 1978.
    Rehearing Denied July 25, 1978.
    Kenneth G. Stevens of Dale & Stevens, Fort Lauderdale, for petitioners.
    James W. Knight, Jr. of Huebner, Shaw & Bunnell, and Nancy Little Hoffmann, Fort Lauderdale, for respondents.
   SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Fourth District, reported at 348 So.2d 56, which is alleged to be in conflict with Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972), the latter case setting forth the rule that an appellate court may not substitute its judgment for that of a trial court by reevaluating the evidence. Jurisdiction vests in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

For the reasons hereinafter enunciated we quash the decision of the District Court of Appeal, Fourth District.

The facts of this case are reflected in the trial judge’s recitation of the evidence introduced at a hearing on petitioners’ complaint to foreclose a mortgage against respondents:

This cause raised the issue as to the rights of a mortgagee [petitioners] to accelerate a mortgage by reason of the failure of the mortgagor [respondents] to obtain insurance, deliver the policy to the mortgagee, and/or communicate to the mortgagee the status of mortgagor’s efforts in obtaining and delivery of insurance. The facts, as revealed by the testimony and exhibits introduced, show that the mortgagors purchased a parcel of industrial property from the mortgagees in August, 1973, and that thereafter said premises were not insured as required by the terms of the mortgage until March 14, 1974. The evidence discloses that the mortgagors were unaware of their duty to insure or the fact it was not insured until approximately March 8, 1974, when plaintiffs’ attorney advised the mortgagors that they were in default and that they did not have insurance currently in force. At this time mortgagors obtained the first policy of insurance, effective March 14, 1974. In the early part of May, 1974, the mortgagors and the mortgagees both received a Notice of Cancellation of the March 14, 1974 policy, which notice of cancellation became effective at noon on May 30, 1974. In early May, Mortgagors consulted the Coral Ridge Insurance Agency and requested such agency to write a new policy on the subject property. An application and letter requesting insurance were prepared and forwarded to the insurance carrier, which application requested the insurance effective May 31, 1974. The mortgagors offered testimony that an “oral binder” was issued effective May 30, 1974. On June 7, 1974, the plaintiff mortgagees consulted with their attorney and as a result caused this suit to be filed on June 13, 1974, alleging that a breach of the mortgage had occurred by reason of the defendants failing to provide insurance in accordance with the mortgage agreement and accelerating the balance of the mortgage. On June 14, 1974, the plaintiffs, not being aware of the alleged “oral binder” from Coral Ridge Insurance Agency, obtained their own insurance at a net cost of $200.00 (after credit for return of the premium after cancellation of the foregoing policy). On July 12, 1974, the Coral Ridge Insurance Agency was advised by telephone that Aetna Insurance Company, to whom the application had been made, would not write the policy because the application did not cover and the defendants did not wish to insure the personalty on the subject property. This telephone conversation was subsequently confirmed by letter from Aetna Insurance to Coral Ridge Insurance Agency dated July 15, 1974.
Service of process on the defendants was obtained in this cause by an elisor on August 7, 1974. On August 7, 1974, the Coral Ridge Insurance Agency wrote a letter to the plaintiffs advising that they were covered by a binder and that Aetna Insurance Company would issue the policy of insurance “very shortly,” notwithstanding the fact that Aetna by its letter of July 15, 1974, had already declined to write the coverage and considered the matter a “closed issue.” On August 23, 1974, Coral Ridge Insurance Agency requested coverage by New York Central Mutual Fire Insurance Company, as a result of which an insurance policy was delivered to the plaintiffs on November 14, 1974, with coverage commencing May 31, 1974, at noon Standard Time.
Based upon the foregoing, the trial court made the following findings:
1. A technical default occurred by the failure of the defendants [respondents] to insure the subject property from noon May 30, 1974 to noon May 31, 1974.
2. It was the duty and burden of the defendants to obtain insurance and to deliver some written evidence of such insurance, in the form of a binder or policy to the plaintiffs [petitioners] as of May 30, or at least within a reasonable time thereafter.
3. The evidence is undisputed that between May 30, 1974 and June 13, 1974 (the date on which suit was filed), the defendants failed to communicate the existence of the alleged “oral binder” to the plaintiffs, nor was a copy of same ever reduced to writing by Coral Ridge Insurance Agency. Such failure constitutes a breach of the defendants’ obligation under the mortgage to furnish a policy of insurance “to be held by, and payable to, said mortgagee[s].”
4. It is extremely doubtful from the evidence and the Court, therefore, cannot find that the subject property was covered by insurance from July 15, 1974, to August 23, 1974.
5. The plaintiffs were justified in believing that the security for their mortgage was in jeopardy, and they were justified in accelerating the balance due on the mortgage and in obtaining their own insurance. The plaintiffs were also justified in consulting their attorneys and filing suit to protect their mortgage security.
6. The Court finds that the delivery of the New York Central Mutual Fire Insurance Company policy on November 14, 1974, did not constitute delivery within a reasonable time.
7. The Court also notes that there was a total lack of communication between the parties and that the defendants individually and their agents failed to notify the plaintiffs that insurance was being sought or otherwise to keep them informed of their progress in obtaining insurance.
8. The Court further finds that it was the duty and burden of the defendants to take the affirmative action to obtain insurance, to deliver the insurance policy to the plaintiffs, and to communicate their efforts and progress in accomplishing such ends.

Accordingly, the trial judge entered a final judgment of foreclosure in favor of petitioners.

It is well-established that courts of equity may refuse to foreclose a mortgage when an acceleration of the due date would render the acceleration unconscionable and the result would be inequitable and unjust. Clark v. Lachenmeier, 237 So.2d 583 (Fla.2d DCA 1970); Campbell v. Werner, 232 So.2d 252 (Fla. 3d DCA 1970); Schechtman v. Grobbel, 226 So.2d 1 (Fla. 2d DCA 1969). Consistent with this principle, courts have denied foreclosure of a mortgage where breach of the mortgage was merely a technical one and such breach did not place the security in jeopardy. See Martin v. McGee, 82 So.2d 736 (Fla.1955); Schechtman v. Grobbel, supra. However, the presumption of correctness which surrounds a final judgment on review, Cohen v. Mohawk, Inc., 137 So.2d 222 (Fla.1962); Williams v. Williams, 85 So.2d 225 (Fla.1955); Staton v. Staton, 231 So.2d 531 (Fla. 1st DCA 1970); American Fidelity Fire Insurance Co. v. Clark, 174 So.2d 106 (Fla. 3d DCA 1965), compels the conclusion that the trial judge in the case sub judice properly applied this principle in determining the propriety of a judgment of foreclosure in favor of petitioners. Our conclusion is buttressed by the foregoing findings of the trial judge: Although he determined that “[a] technical default occurred by failure of the [respondents] to insure the subject property,” he further found that petitioners “were justified in believing that the security for their mortgage was in jeopardy, and they were justified in accelerating the balance due on the mortgage. . . .” The effect of these findings of fact, coupled with entry of final judgment of foreclosure in favor of petitioners, is a determination that despite the technical nature of respondents’ default, the security was in fact placed in jeopardy and, accordingly, foreclosure was proper. In short, the chancellor exercised his discretion based on his assessment of the testimony and evidence and based on an application of the correct rule of law.

On appeal, however, the District Court of Appeal, Fourth District, reversed the final judgment and remanded the cause. An obvious reevaluation of the evidence in a efe novo consideration thereof, contrary to the rule of Westerman v. Shell’s City, Inc., supra, is apparent in the district court’s holding that “the trial judge erred in entering final judgment of foreclosure of a mortgage on a harmless technical breach for it would be inequitable and unjust.” This holding necessarily involves a finding, in clear contradiction of that of the trial court, that the security was not in fact placed in jeopardy as a result of respondents’ breach. There being no express or apparent finding of an abuse of discretion by the trial court, the action of the appellate court is not justified.

Accordingly, the petition for writ of cer-tiorari is granted, the decision of the District Court of Appeal, Fourth District, is quashed, and this cause is remanded to that court with instructions to reinstate the judgment of the trial court.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD and HATCHETT, JJ., concur.


author: PER CURIAM. DOWNEY, Chief Judge, DAUKSCH, Judge,

text:
    Artis J. KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 77-76.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1978.
    Rehearing Denied June 7, 1978.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, Appellate Division, Asst. Public Defender, and Nikki Ann Clark, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Paul H. Zacks and John Cecilian, Asst. At-tys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

DOWNEY, C. J., concurs specially, with opinion in which CROSS J., concurs.

DAUKSCH, J., dissents with opinion.

DOWNEY, Chief Judge,

specially concurring:

A composite drawing of appellant was admitted into evidence at the trial. Appellant also offered in evidence a composite drawing of a co-defendant, but it was rejected. Through inadvertence the rejected composite found its way into the jury room together with the other properly admitted exhibits. Without the first suggestion of any prejudice accruing therefrom, appellant seeks reversal of his conviction because the jury was able to consider a composite of a co-defendant which appellant unsuccessfully attempted to have admitted into evidence. Surely it was error to allow the non-admitted exhibit into the jury room, but harmless within the meaning of Section 59.041, Florida Statutes (1977).

Accordingly, I agree that the judgment appealed from should be affirmed.

DAUKSCH, Judge,

dissenting:

I respectfully dissent. The trial judge sent to the jury room a composite drawing of a face which drawing was not in evidence. Whether or not the jury was improperly motivated to convict the Appellant is not for me to say. I cannot know if the Appellant was injured by this error but it is error. Smith v. State, 95 So.2d 525 (Fla.1957). F.R.Crim.Prac. 3.400(d). State ex rel. Pryor v. Smith, 239 So.2d 85 (Fla. 1 DCA 1970).

I would reverse for a new trial.


author: McCORD, Chief Judge.

text:
    William C. KEEBLER, Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. GG-441.
    District Court of Appeal of Florida, First District.
    May 25, 1978.

      Prank D. Newman, of Newman & Peterson, DeLand, for appellant.
    Robert L. Shevin, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., for appellee.
   McCORD, Chief Judge.

The question presented on this appeal is whether the documentary stamp tax upon a deed given to a mortgagee in lieu of foreclosure should be based upon the amount of the indebtedness which is extinguished by the deed or upon the value of the property conveyed. The Department of Revenue, in its final order, ruled that the consideration was the amount of the debt which was extinguished rather than the value of the land and that the tax must be paid upon the amount of debt extinguished. Petitioner here seeks review of that order. Under the particular facts of this case as will be hereinafter related, we reverse.

Petitioner sold the property here involved to one Norris. To pay for the property, Norris gave petitioner a purchase money mortgage for $665,000 and obtained a $200,-000 loan from Barnett Bank for which he gave a mortgage in that amount and petitioner subordinated his mortgage to the mortgage with Barnett Bank. Subsequently, Norris was unable to make payments on either mortgage, and petitioner initiated foreclosure proceedings. Norris then gave petitioner a quit claim deed to the property which petitioner accepted in satisfaction of the debt, petitioner assuming the $200,000 mortgage to Barnett Bank on which only interest had been paid. Evidence was presented and respondent, in its final order, found that the actual market value of the property was only $450,000 at the time of the execution of the deed in lieu of foreclosure. Evidence that Norris was insolvent at the time of the transfer was presented, and there was no evidence to the contrary. The fact that petitioner extinguished a debt to him of $665,000 and assumed a $200,000 mortgage in consideration for property worth only $450,000 is further evidence that the debt was uncollectible. Documentary stamp tax and documentary surtax stamps were affixed to the quit claim deed based upon the consideration for the deed being the actual market value of the property— $450,000. The hearing officer of the Department of Administrative Hearings found that the consideration was the amount of the extinguished and assumed debt — $865,-000. Respondent likewise reached this result in its final order and directed payment of the tax on $865,000.-

In Indian River Orange Groves v. Dickinson, 238 So.2d 125 (Fla. 1 DCA 1970), this Court had before it an appeal of a somewhat similar case but one which did not contain all of the elements that are now contained in this case. There, when the mortgagor was unable to pay the amounts due, the mortgagee accepted from the mortgagor a warranty deed in lieu of foreclosure. The mortgagee treated the deed as having been executed for a nominal consideration and paid only the minimum amount of documentary stamp tax. The Comptroller of the State of Florida contended the tax should have been paid upon the unpaid balance of the mortgage debt, which was due at the time the conveyance was made. This Court agreed and, in agreeing, adopted and quoted with approval the construction placed upon the statute by the trial court as follows:

“Immediately before the execution of the deed the mortgagee owned a debt owing to it and secured by a purchase money mortgage on real estate. In the absence of allegation and proof to the contrary it must be assumed that the mortgaged property was of a value at least equal to the debt. This being the case, the debt owing to the mortgagee had an actual value equal to its face value. * * * ” (Emphasis supplied.)

In the case sub judice, we have the added element not present in Indian River Orange Groves that the mortgaged property was not equal to the debt. Here the value of the mortgaged property at the time of the transfer is established to be $450,000. In accepting this quit claim deed of property worth $450,000 and assuming a $200,000 mortgage to the Barnett Bank and extinguishing a $665,000 debt to himself, petitioner obviously considered the debt to be uncollectible. Under these circumstances, shall we say that the consideration for the transaction was the $865,000 uncollectible debt or was it the value of the property— $450,000? Obviously, the consideration was the value of the property — $450,000. Reversed.

ERVIN and MELVIN, JJ., concur.


text:
    Miguel SEGARRA, Appellant, v. The STATE of Florida, Appellee.
    No. 77-531.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Rehearing Denied July 20, 1978.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY and BARKDULL, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the defendant, Miguel Segarra, from an order of revocation of probation, and a sentence to fifteen years in the state penitentiary.

The record reflects that defendant was charged by information with burglary. As a result of plea negotiations, it was agreed that defendant would plead guilty and that the maximum sentence he could receive would be five years in prison. This five year cap was stated on the record by the trial judge, and is reflected in writing on the court file jacket.

Following a pre-sentence investigation, the trial judge placed defendant on five years probation with two conditions: (1) that he serve one year in the county jail, and (2) that he complete TASC, a drug rehabilitation program. . Subsequently, an affidavit of violation of probation was filed and an evidentiary hearing was held. At the conclusion of the hearing, the trial judge found that defendant was “unsatisfactorily terminated” from the TASC program. An order of revocation of probation was entered and defendant was sentenced to fifteen years imprisonment.

The thrust of this appeal is that the trial court erred in imposing a sentence of fifteen years on violation of probation, where there had been an agreed maximum sentence of five years as a part of plea negotiations accepted and approved by and between defendant, prosecutor and judge. We agree.

The state urges us to base our decision in this case on the body of law emanating from Section 948.06, Florida Statutes (1975), which provides in pertinent part that if probation is revoked, the trial court shall

. . impose any sentence which it might have originally imposed before placing the probationer on probation.”

In the leading Florida case, the Supreme Court held that a defendant placed on probation may be sentenced to imprisonment by the trial, judge for the same period of years as the court could have imposed originally. State v. Jones, 327 So.2d 18 (Fla.1976), as modified by State v. Holmes, 360 So.2d 380 (Fla.1978).

While we recognize this to be the law of Florida, we do not find it to be directly applicable in the context of the instant case because the primary issue before us is not what the trial court might do in the absence of plea negotiations, but rather, the effect of plea negotiations and the agreed limitation of sentence. In this case, defendant’s plea resulted from plea negotiations and rested on the trial court’s and the prosecutor’s promise that five years was the maximum penalty which he ctiuld receive.

As a general rule, in sentencing a defendant whose plea of guilty was the result of negotiations, the trial court must either impose a sentence in accordance with the plea bargain or vacate the judgment and allow withdrawal of the plea. Adams v. State, 328 So.2d 48 (Fla. 1st DCA 1978). As stated in Wood v. State, 357 So.2d 1060 (Fla. 1st DCA 1978), case no. HH-49, opinion filed April 21, 1978, the court may consider a bargained plea to have been tendered in reliance on a particular disposition and on the protective benefits of Florida Rules of Criminal Procedure 3.171 and 3.172.

In the case before us, the record shows that the negotiations were not based on the defendant being placed on probation. Rather, the agreement was that in exchange for entering a plea of guilty to the charge of burglary, the sentence imposed would be no greater than five years imprisonment. Under the circumstances presented, we hold that the maximum sentence which the trial court “might have originally imposed before placing the probationer on probation,” was five years, pursuant to the plea negotiations which were approved by the court. Therefore, extending this reasoning to its logical conclusion, the maximum sentence which the court could impose upon violation of defendant’s probation, was five years.

Accordingly, we reverse the sentence and remand the cause to the trial court with instructions to reduce the fifteen year sentence to no more than five years with credit for time served. The other point raised by defendant is deemed without merit and will not be discussed.

Reversed and remanded.


author: HENDRY, Judge.

text:
    FORTE TOWERS, INC., Forte Apartments, Inc., Forte Towers East, Inc., Forte Towers South, Inc., Triton Properties, Ltd., a limited partnership, Isadore Hecht, et al., Appellants, v. CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellee.
    No. 77-1553.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Rehearing Denied July 20, 1978.
    Storace, Hall & Hauser and William S. Bischoff, Miami, for appellants.
    Ritter & Ritter, Coral Gables, for appel-lee.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellants/plaintiffs appeal from an adverse summary final judgment rendered in favor of appellee/defendant in an action which challenged the validity of the City of Miami Beach’s rent control ordinance. We affirm.

Appellants filed an action against appel-lee challenging the validity of the latter’s rent control ordinance on the following grounds, to-wit: (1) that during the time that the ordinance was in effect, a housing emergency did not exist and thus, rent control was unjustified; (2) that pursuant to the dictates of the ordinance, the permitted rate of return on a landlord’s investment was confiscatory and violative of the due process clause of the Florida and United States Constitution; and (3) that the ordinance had been improperly applied to the luxury housing market.

Basing his decision on the companion cases of Lifschitz v. City of Miami Beach, 339 So.2d 232 (Fla. 3d DCA 1976), cert. den. 348 So.2d 949 (Fla.1977) and Muss v. City of Miami Beach, 339 So.2d 236 (Fla. 3d DCA 1976), cert. den. 348 So.2d 950 (Fla.1977), appeal dismissed [for want of a substantial federal question] 434 U.S. 944, 98 S.Ct. 469, 54 L.Ed.2d 306 (1977), the trial judge entered a summary final judgment in favor of appellee on the alternative theories of res judicata and/or collateral estoppel. Appellants now take the instant appeal contending that, sub judice, res judicata and/or collateral estoppel are inapplicable and there remains genuine issues of material fact unresolved in the trial court thus precluding the entrance of summary judgment.

After carefully reviewing the record, briefs and arguments of counsel, in the light of the applicable and controlling principles of law, it is our opinion that the trial judge was correct in entering summary final judgment, however, his reasoning for so doing was erroneous.

The doctrines of res judicata and estoppel by judgment can only be applied when the parties in the present lawsuit are the same as the parties in the former action, or the present parties are in privity with the parties in the former action. Seaboard Coast Line Railroad Company v. Cox, 338 So.2d 190 (Fla.1976); Shearn v. Orlando Funeral Home, Inc., 88 So.2d 591 (Fla.1956); Smith v. Florida East Coast Railway Company, 151 So.2d 70 (Fla. 3d DCA 1963). The parties plaintiff in the Lifschitz and Muss cases were neither the same as appellants nor in privity with them. As such, any reliance upon the doctrines of res judicata and/or collateral estoppel was misplaced.

Notwithstanding the above, however, it is our opinion that the summary final judgment should nevertheless be affirmed. The law is quite clear that if an order or judgment of the trial court can be sustained upon any theory or principle of law, an appellate court will affirm the order or judgment even though the trial judge based his ruling upon erroneous reasoning. In Re Estate of Yohn, 238 So.2d 290 (Fla.1970); First National Bank of Clearwater v. Morse, 248 So.2d 658 (Fla. 2d DCA 1971); Berkman v. Miami National Bank, 143 So.2d 535 (Fla. 3d DCA 1962).

As mentioned above, the three basic contentions of appellants in attacking the rent control ordinance were that genuine issues of material fact existed as to whether or not an emergency housing situation did in fact exist; if so, whether or not said emergency applied to the luxury housing market; and whether the rate of return afforded appellants, as landlords, was confiscatory and violative of the State and Federal Constitution.

It is our opinion that the issues raised by appellants at trial, and on appeal, were either expressly or impliedly answered contrary to their positions in the Lifschitz and Muss decisions. Therefore, the same issues having been previously resolved against appellants, summary judgment, as a matter of law, was proper.

Accordingly, summary final judgment is hereby affirmed.

Affirmed.


text:
    William K. OLIVER, Petitioner, v. STATE of Florida, Respondent.
    No. 77-510.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Rehearing Denied July 19, 1978.
    Philip G. Butler, Jr., of Foley, Colton & Butler, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Upon consideration of the record as it exists before us and briefs of the respective parties, we determine that the circuit court in its appellate capacity departed from the essential requirements of law by reversing an order of the county court on a factual matter without a transcript of the trial proceedings. Johnson v. Town of Eatonville, 203 So.2d 664 (Fla. 4th DCA 1967). Accordingly, we grant certiorari, quash the order of the circuit court, and remand with directions to reinstate the order of the county court.

Certiorari granted, order quashed, and remanded.

CROSS, ANSTEAD and DAUKSCH, JJ., concur.