author: CHARLES CARROLL, Associate Judge. BARKDULL, Judge,

text:
    The STATE of Florida, Appellant, v. Stanley Edward ESHUK, Appellee.
    No. 76-546.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Rehearing Denied July 27, 1977.

      Richard E. Gerstein, State Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, for appellee.
    Before HENDRY, C. J., BARKDULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

By a four-count information the appellant-defendant Stanley Eshuk was charged with (1) sale or delivery of a controlled substance, Cannabis, to one Dennis Staut on April 24, 1974; (2) possession, or delivery without consideration, of a quantity of such substance on said date; (3) sale or delivery of such a substance to Dennis Staut on April 30, 1974; and (4) possession of such substance on April 30, 1974.

Prior to trial the defendant filed a motion to dismiss for alleged improper governmental conduct, based on circumstances which are set out below. The motion was denied by the trial judge before whom it was heard. Thereafter trial of the defendant was commenced before another judge. Because of a necessity therefor which arose, a mistrial was declared. Thereupon, by oral motion, the defendant renewed his prior motion for dismissal. After a further hearing thereon, the court entered an order of dismissal as follows: “This cause having come before the court upon the defendant’s oral motion to dismiss, and the court having heard argument of counsel, it is hereby Ordered and Adjudged that the defendant’s oral motion to dismiss is hereby granted.”

The State has appealed therefrom. We find error and reverse. The governmental conduct which prompted the court to enter the foregoing order, in our opinion was not such as should have brought about that result.

The above charges against the defendant followed sale of Cannabis by the defendant to an undercover police officer, Dennis Staut, who negotiated and consummated the purchase thereof from the defendant, in the presence of an informant, Michael Woosley, after the officer had been introduced to the defendant by Woosley.

Detective Staut and another police officer of the Department of Public Safety of Dade County arranged for Woosley’s assistance as an informant after Woosley had been arrested by police of the City of Opa-Locka' on suspicion of having committed several burglaries. There was a dispute as to whether the Metro officers had promised Woosley that if he worked with them the matters thus under investigation would be dropped. The officers contended they did not. There was no evidence of any formal action of that character. It does appear that such investigation was not progressed during the times involved here.

According to testimony of Officer Staut given at the trial, the transaction for which the defendant subsequently was arrested and so charged and prosecuted was as follows. The informant Woosley, and officer Staut posing as a civilian, encountered Eshuk in a bowling alley. There Woosley, who was known to Eshuk, introduced Staut to Eshuk. Staut inquired of Eshuk as to what he had to sell. Eshuk led them outside to his motor van parked nearby. There he and Staut, in the presence of Woosley, discussed quantity and price of Cannabis which Eshuk produced, contained in a plastic bag. A sample taken therefrom was placed in a vial and delivered to Staut (for testing, etc.). That occurred on April 24, 1974. On April 30, Woosley called Eshuk who fixed a time and place for a meeting later on that day. There Woosley and Staut met with Eshuk in his van at which time Staut purchased the Cannabis from Eshuk (one pound) for which he paid the agreed price. Thus the case against Eshuk, such as it was, was made and completed by April 30, 1974.

Woosley was not paid for his services in that transaction which consisted of introducing the officer to the defendant, being present at the first meeting of the parties in Eshuk’s van, and contacting Eshuk regarding the time and place of the second meeting and being present there. It appears that sometime after consummation of the Eshuk sale transaction, the informant performed some services involving similar type transactions of the police with other persons for each of which he was compensated for his services. In some instances, he was so paid after making such an introduction, and in others after an officer had made a purchase as a result of such an introduction. Those later services of Woos-ley had no relation to Eshuk, or to the case against him.

The only governmental misconduct that could affect this case was that which took place before or at the time of the Eshuk sale and delivery in the transactions of April 24 and April 30, 1974. What the informant himself may have done after those dates, and the action or non-action of the officers in relation thereto and their use of the informant in some other unrelated matters after April, could have no bearing on the case theretofore made against Eshuk.

First, as to the conduct of the officers relating to the case made against the defendant in April, 1974, the officers of the Public Safety Department of Dade County used the assistance of the informant Michael Woosley in the transaction with Eshuk after Woosley had been arrested by police of the city of Opa-Locka on suspicion of burglary, and while such investigation was not being pressed. No immunity was granted to Woosley with respect to such prior matter or matters, and under the law he remained subject to prosecution therefor if such should become warranted when further investigated.

Second, as to subsequent conduct of the informant and the officers, after April, and unrelated to the case previously made against Eshuk, some weeks after the completion of the above described sale transaction with the defendant, the informant burglarized the defendant’s apartment in Opa-Locka and took some articles therefrom (spoons of the kind used in sniffing cocaine, and a jar of mushrooms). When that occurrence was reported to Metro Officer Staut by an Opa-Locka detective, according to Staut he told the Opa-Locka detective he was free to proceed on that matter as he felt was required. The State Attorney’s office determined against instituting prosecution of Woosley at that time, because of a policy not to do so at a time when Woosley was to be a witness in the case which had been made in April against Eshuk. No immunity was granted to Woosley in that connection, and under the law he remained subject to prosecution therefor at a later time. In breaking into the defendant’s apartment, Woosley acted on his own and not with knowledge of or at any direction by the officers. That break-in had no reference to the prior April offense of the defendant. Since trial of the defendant would involve only evidence of the April sale, therefore, aside from its obvious inad-missability, nothing found or obtained by Woosley on that break-in could have any relevancy or bearing with reference to the defendant’s prosecution for said April transaction. Clearly that incident did not represent any governmental action taken for the purpose of obtaining a conviction of Eshuk for the prior offense. The commission of crimes by the informant which were unrelated to the transaction for which the defendant was charged and to be tried, and even the failure or delay in prosecuting the informant therefor, did not violate any right of the defendant or otherwise form basis for dismissal. See United States v. Acosta, 526 F.2d 670 (5th Cir. 1976).

Also, after the April sale transaction with the defendant and prior to the defendant being brought to trial, Staut and another Metro officer similarly used the assistance of Woosley as an informant on matters involving some other persons, and on each such occasion the informant was paid for his services. How Woosley was used (after April) and how or what he was paid for such subsequent services, unrelated to Eshuk, was immaterial in this case.

The difficulty which those charged with law enforcement have in controlling local traffic in drugs is such that use of confidential informants as was done in this instance, if not essential to success, is of material assistance. Necessarily, the practice is general. Frequently such informants are persons who are on probation, or may be subject to pending criminal prosecutions, or under investigation of criminal offenses. Use of an informant in such status is not a violation of a defendant’s constitutional rights, although it has led to a firm rule that when such an informant who has been so used testifies in a case he may be cross-examined regarding any such matters, as bearing on his bias or on his interest with respect to the testimony which he gives in the case.

In arguing in support of the dismissal order, the appellee states rules pronounced in Federal eases that limitations of the constitution will be effective when the government activity in question violates some protected right of the defendant, and that fundamental rights guaranteed to a citizen by the fifth and fourteenth amendments to the constitution may not be violated by law enforcement agents in an attempt to convict a defendant. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); Williamson v. United States, 311 F.2d 441 (5th Cir. 1963); United States v. Mahoney, 355 F.Supp. 418 (E.D.La.1973).

Those cases relied on by the appellee do not furnish authority to hold that where the undercover officer was introduced to Eshuk by an informant who was subject to an investigation for certain prior offenses, not then being pressed, that was governmental misconduct in violation of constitutional rights of Eshuk, or was governmental conduct so outrageous that due process principles absolutely barred the prosecution.

In Rochin v. California, supra, the conduct which prompted reversal of a cocaine possession conviction was that when the defendant, on apprehension, swallowed evidence consisting of a capsule of cocaine, the officers attempted forcibly to retrieve the capsule from the defendant’s mouth, and, failing in that, forcibly required the defendant to submit to having the capsule extracted by a stomach pump. The distinction between that and the present case is apparent.

United States v. Russell, supra, did not involve government misconduct. The question there was one of entrapment.

In Hampton v. United States, supra, the defendant appealed following conviction based on a sale by him to undercover federal agents of heroin which had been supplied to the defendant by an informant. Although the defendant had admitted his predisposition to commit the offense, he claimed error for failure of the court to charge the jury that, notwithstanding his admitted predisposition to make the sale, if the jury should find the heroin which he sold had been supplied to him by an informant he should be acquitted. The judgment was affirmed.

In Williamson v. United States, supra, an informant engaged by government officers was sent out to attempt to make a “buy” of illicit whiskey from either of two designated persons known to the officers to be main dealers therein, “Big Boy” Williamson and his half-brother. The informant was promised a fee of $200 if he could make a purchase of illicit whiskey from “Big Boy”, and $100 if he could make such a purchase from the half-brother. Acting alone, the informant arranged a purchase of 179 gallons of illicit whiskey from “Big Boy”. One Low-rey, who transported the whiskey to the place of the sale and delivery, also was charged. “Big Boy” Williamson and Low-rey were convicted, and appealed. The judgment was reversed, the majority expressing the opinion that to offer to pay an informant a substantial sum ($200 in that instance) as a contingent fee if the informant could make a case against the defendant was a practice too likely to involve entrapment or other conduct violative of the defendant dealer’s constitutional rights. This case clearly differs from Williamson. Here the informant was not dispatched to make a purchase of contraband from a specified individual. The part of the informant in the Eshuk transaction in this case was not such as might be considered to lead to entrapment, and was not legal entrapment. See United States v. Joseph, 533 F.2d 282, 285-286 (5th Cir. 1976); United States v. Onori, 535 F.2d 938, 942 (5th Cir. 1976). In the latter case, regarding Williamson in which the informant who made the government’s case had been promised a specified sum of money for successfully incriminating the defendant, the court in Onori stated: “Williamson has been subsequently limited to require reversal of a conviction only when the specific defendant was picked out for the informers efforts by a government agent. See, e. g., United States v. Joseph, 533 F.2d 282, 285 (5th Cir. 1976)” [and citing other cases].

In Joseph, where the use of informants was similar to the use of the informant in this case, the court held Williamson was not applicable, and in explanation thereof said:

“ * * * But in Williamson the government paid a contingent fee to an informant for producing evidence against a particular defendant. Here, however, the informants were paid for setting up drug purchases by the undercover agents with no particular persons as the target of the buying efforts. Agents Roberson and Lewis went with the two informants and attempted to buy from whomever might be found who would enter into a transaction. This factor takes the case outside the ambit of the Williamson doctrine”. [citations omitted].

The limitation placed on the Williamson rule relating to employment of an informant on a contingent fee basis by the later cases of Joseph and Onori renders without merit the argument of the appellee that the dismissal in this case should be upheld on authority of Williamson on the theory that the use of the informant in the Eshuk transaction, without pay, actually was on a contingent fee basis because it was understood by the officers that if he should establish his credibility and value in the initial transaction in which he was used he would be used and paid for later such transactions. Assuming that could be considered as a contingent compensation arrangement in the Eshuk transaction, the limited Williamson rule is not applicable to the facts of this case. United States v. Joseph, supra.

In United States v. Mahoney, supra, a District Court decision, a seaman importing marijuana was arrested leaving ship. The seaman offered to cooperate, to aid the government officers in apprehension of his customers with whom he would arrange dealings with the confiscated marijuana which was returned to him for that purpose. He was permitted to do so, resulting in an arrest of his customer. The defendant moved to dismiss, claiming that putting the confiscated marijuana back on the market by allowing it to be so used by the informant amounted to governmental misconduct such as to justify and require dismissal of the prosecution. The motion to dismiss was denied, without prejudice to submit the defense at trial. The question there was whether such use of the confiscated marijuana amounted to “an intolerable degree of governmental participation in the criminal enterprise”.

The use made of the informant incident to the transaction for which Eshuk was arrested in the instant case (introducing the officer and witnessing the sale made to the officer) did not violate any constitutional right held by the defendant. The use made of the informant incident to the sale transaction in this case was no more than routine procedure in such matters. This case did not involve any unfair method or spectacular use of an informant.

When Woosley, who knew Eshuk, introduced Eshuk to Staut what difference could it make whether Woosley was “clean” or was in trouble with the law? The nature of Woosley’s part in the Eshuk transaction was such that the fact that he was on probation and had been under investigation for certain other crimes, would furnish no basis in law to regard the officer’s “buy” from Eshuk as having been made in violation of Eshuk’s constitutional rights. Those circumstances had no relevance to the “buy” which was made in this case.

Moreover, the existence of such circumstances relating to the status of the informant with regard to the law would be available to the defendant to be shown in evidence, to bear on the bias or self-interest of the informant as to his testimony if given at trial. Morrell v. State, 297 So.2d 579 (Fla. 1st DCA 1974); Fulton v. State, 335 So.2d 280 (Fla.1976); United States v. Acosta, 526 F.2d 670 (5th Cir. 1976).

In summary, we hold that the use of an informant to introduce the undercover officer to the defendant in this case, which otherwise would not be a violation of any constitutional right of the defendant, did not become so because of the fact that the informant had a criminal background or even if he had criminal charges pending against him, and therefore was no ground for dismissal. United States v. Joseph, supra; United States v. Onori, supra. Further we hold that the subsequent conduct of the informant and the officers in relation thereto and his use by the officers in other cases, all of which occurred after and unrelated to the April sale transaction with the defendant, were no basis or reason in law to cause the dismissal of this prosecution of Eshuk for the completed April transaction upon which it was based.

Accordingly, the dismissal order appealed from is hereby reversed, and the cause remanded for further proceedings.

BARKDULL, Judge,

dissenting.

I respectfully dissent. The trial judge dismissed a criminal prosecution because of improper conduct on the part of law enforcement officers and a paid informant. One Woosley was arrested by the Opa-Loc-ka police for a series of burglaries. In exchange for getting these charges dropped, he offered to make drug cases against other persons. The Public Safety Department was contacted; two police officers interviewed Woosley and took him on as a paid informant if he proved useful. Subsequent to this employment, the confidential informant arranged a meeting between the Public Safety Department officers and the defendant Eshuk. As a result of the buy in the Eshuk transaction, the confidential informant proved his credibility to the officers, and he then commenced to make other cases for which he was paid $50.00 each.

I recognize that confidential informants may be used and paid for information relating to a crime already committed; however, I think it would be a grievous error to encourage the payment of confidential informants on a contingent basis for acts they are to arrange in the future and, therefore, I would affirm the action of the trial judge. See: Williamson v. United States, 311 F.2d 441 (5th Cir. 1962).

      . During the portion of the trial which was held, Staut, the undercover officer who dealt with Woosley, testified that prior to the Eshuk transaction there was no discussion as to what amount of money would be paid to him; that nothing was paid to Woosley for his assistance in the instant case; and as to the reason he was not paid, Staut testified: “He was a brand new confidential informer, and I had not yet established his credibility. Therefore, I did not deem it necessary to pay him at this time until I could establish his real credibility”.
      Further, when Staut was asked whether he at any time discussed with Woosley protection for him as to any crimes he should commit while working with the officers, Staut answered; “No, I did not. In fact 1 informed him that we do not condone any illegal activity by our confidential informers”.
      Staut testified that after Opa-Locka detective Burgin informed him of the subsequent burglary of Eshuk’s apartment by Woosley, he asked Woosley about it, and Woosley admitted it. When Staut was asked what he did after obtaining such information, he testified: “I told Detective Burgin to go ahead and handle the case how ever he had to handle it. If he had to arrest Michael Woosley, he should arrest him”. When asked why he himself did not present charges against Woosley for the burglary, Staut testified, “The Opa-Locka Police Department investigates their own burglaries. I deemed Detective Burgin to be a competent detective, and he was handling the case at the time; therefore, there was no reason for me to become involved”.
      Staut also testified that prior to using Woos-ley as an informer his department was informed by Opa-Locka police they had a man there who had information regarding narcotics traffic who might be of help; that he went there at his sergeant’s request; that Opa-Locka police told him Woosley was there because stolen property had been found in the place where he and six other persons were residing, that they had no prosecutable case against Woosley for stolen property, and “that they had no charges pending on Mr. Woosley, that he was going to walk out that evening, and they were not going to arrest him”; that Woos-ley’s Metro record was checked, and showed he had been arrested in 1972, and no charges were pending against him; that following the buy from Eshuk, some time after similar cases had been made against other persons with Woosley’s assistance, Woosley had informed Staut that his identity as an officer had become known to such persons; and that thereupon it was determined to arrest Eshuk and such other persons, fearing they might depart; that when he informed the Opa-Locka police that such arrests were about to be made there, was when he learned about the burglary of Eshuk’s apartment by Woosley; that the arrests of Eshuk and some others were made on or about June 10, 1974.


source: Caselaw Access Project

author: HUBBART, Judge.

license: Public Domain

text:
    SOUTH FLORIDA APARTMENT ASSOCIATION, INC., Appellant, v. S. A. DANSYEAR, Appellee.
    Nos. 76-679 and 76-1124.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Rehearing Denied July 20, 1977.
    Storace, Hall & Hauser and Andrew C. Hall, Miami, for appellant.
    Jacobi & Seidler and Raymond M. Sei-dler, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

This case is an appeal from a final judgment entered in favor of the appellee, S. A. Dansyear, in the amount of $12,000 in his action to recover on an alleged debt against the appellant, South Florida Apartment Association, Inc. The appellant assigns as error the trial court finding in favor of the plaintiff and contends that the action herein is barred by the statute of frauds. Section 725.01, Florida Statutes (1975). We affirm.

The final judgment in favor of the appellee recites that a trial was conducted and testimony taken thereon in the trial court. The appellant has failed to include a transcript of this testimony in the record on appeal. Fla.App. Rules 3.6 d(2), e, f. In lieu thereof, the appellant has failed to file a stipulated statement of facts containing the substance of the testimony at the time of the trial in this cause. Fla.App. Rule 3.6 h. It is the responsibility and duty of the appellant to provide the appellate court with a record sufficient to review the matter assigned as error. Gleim v. Gleim, 176 So.2d 610 (Fla.3d DCA 1965) and cases collected. In the absence of such a trial record, we find it impossible to determine whether the evidence at trial established the defense of the statute of frauds as a matter of law. This court, accordingly, has no alternative but to assume that the trial court ruled correctly and affirm the decision below. Reicheck v. Florida Bond and Mortgage Co., 237 So.2d 83 (Fla.4th DCA 1970); Belfield v. Lochner, 162 So.2d 668 (Fla.2d DCA 1964).

The appellant also appeals from an order denying its motion for rehearing on a prior order requiring the appellant to post a supersedeas bond. We dismiss this appeal sua sponte. This court has no jurisdiction to entertain such an appeal since a motion to review a supersedeas order under Fla. App. Rule 5.10 is the proper method to seek appellate relief from an arbitrary or unreasonable supersedeas order. No such motion was filed in this case. Moreover, the super-sedeas order complained of is not included in the record on appeal.

Affirmed as to the appeal from the final judgment; dismissed as to the appeal from the order denying the motion for rehearing on the supersedeas order.


author: PER CURIAM. NATHAN, Judge,

text:
    William Allan MOBLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-704.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Rehearing Denied July 27, 1977.

      Richard G. Taylor, Richard M. Gale, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by William Allan Mob-ley from an adjudication of guilty of perjury in an official proceeding under Section 837.02, Florida Statutes (1975) .

Mobley basically contends that the prosecution failed to prove an essential element of the perjury charge, to wit: that his alleged testimony was made under oath. See Hirsch v. State, 279 So.2d 866 (Fla. 1966).

The issue presented for our determination is where the official transcript of the proceedings raises some doubt as to whether the defendant was, in fact, sworn before testifying, may the prosecution call witnesses who were present at those proceedings to testify that the defendant was so sworn.

Jerry Rayzor, manager of the Top Hat Health Studio, was charged with operating a massage parlor without a license and maintaining a house of prostitution in State v. Rayzor. Several months prior to the Rayzor trial, an undercover female detective with an electrical monitoring device hidden on her person went to the studio on the pretext of seeking employment. She interviewed with Mobley, proprietor of the studio and appellant herein, who instructed her on her duties including massage and the solicitation of certain lewd and lascivious acts. At the Rayzor trial, Mobley testified that (1) the studio is not and never has purported to be a massage parlor, (2) he never authorized any lewd, lascivious or illegal acts of prostitution at the studio and (3) the studio employees are not instructed to solicit or procure any lewd, lascivious or illegal acts of prostitution. As a result, Mobley was informed against for allegedly giving perjured testimony at the Rayzor trial.

The court reporter who took the official record of the proceedings in the Rayzor trial was called to testify in the instant case and read Mobley’s testimony from his transcribed notes. His notes failed to reflect that Mobley was sworn or placed under oath prior to testifying. However, the notes did demonstrate that at the commencement of the Rayzor proceedings with Mobley as a witness present in the courtroom, the trial judge stated:

“All right, everybody in the ease of Razor [sic] come forward and let’s swear the witnesses.”

In addition, two police officers who had been witnesses at the Rayzor trial testified that they were present in the courtroom when Mobley was called to testify and they observed him taking the stand and being sworn. At the conclusion of the perjury trial, the jury found Mobley guilty as charged.

Mobley argues that the trial court erred in permitting the two officers to testify that he was sworn at the Rayzor trial where the official transcript of those proceedings failed to so reflect and, therefore, the State failed to prove his testimony was given under oath. We cannot agree.

Long ago the principle of law was established that in a perjury prosecution, any witness present at the alleged swearing may be questioned fully as to all the facts and circumstances connected with the alleged swearing of the defendant in order that it may be determined whether or not the defendant was sworn. Markey v. State, 47 Fla. 38, 37 So. 53 (1904); Leaptrot v. State, 51 Fla. 57, 40 So. 616 (1906). Thus, the trial judge properly permitted the officers who were present at Mobley’s swearing to so testify.

Furthermore, to entertain the suggestion that the trial judge who presided over the Rayzor proceedings is the only party who could testify to the fact that Mobley was sworn is to insinuate that the testimony of the police officers with respect to this issue is unworthy of belief thereby invading the province of the jury to accept the testimony believed to be true and to reject that which it concludes is not worthy of belief. See Jefferson v. State, 298 So.2d 465 (Fla. 3d DCA 1974). On appeal this court will not substitute its judgment on such matters for that of the jury. Jefferson, supra, and cases cited therein.

We have also considered Mobley’s second point on appeal and find it lacking- in merit.

Affirmed.

NATHAN, Judge,

dissenting:

I respectfully dissent and would reverse the conviction and sentence for perjury. The record in the original proceedings was silent as to whether the defendant was sworn. A court speaks only by its record, and when that is deficient the remedy is by correction to make the record speak the truth and not by attempt to supply the omission by evidence aliunde. Perkins v. Mayo, 92 So.2d 641 (Fla.1957). Approval of the procedure employed by the State in this case violates the best evidence rule. See North Beach Yellow Cab Company v. Village of Bal Harbour, 135 So.2d 4 (Fla. 3d DCA 1961).

In my opinion, the trial judge in the original proceedings is the only practical source of supplementing the record with the information as to whether the defendant was sworn before testifying. However, the State failed to pursue this avenue, and chose to rely solely on the testimony of two police officers to supply an omission to the record on that material point. Where, as in this perjury case, the swearing of the witness is an essential element of the offense, justice requires that such alteration of the record be properly made by the trial judge presiding over the original proceedings. Moyer v. Moyer, 114 So.2d 638 (Fla. 3d DCA 1959).

For these reasons, I would revérse and remand for a new trial.

      . “837.02 Perjury in official proceedings
      “(1) Whoever makes a false statement, which he does not believe to be true, under oath in an official proceeding in regard to any material matter shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.”


author: PER CURIAM.

text:
    In re ESTATE of Andrew G. BROWN, Deceased. Lorraine W. BROWN, as Administratrix, C.T.A. of the Estate of Andrew G. Brown, Appellant, v. Elizabeth HANGER, a/k/a Beth Hanger, Appellee.
    Nos. 76-830-76-832.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.

      Knight, Peters, Hoeveler, Pickle, Nie-meller & Flynn and J. T. Blackard, Miami, for appellant.
    Starr W. Horton and Robert C. Claiborne, Miami, for appellee.
    Before BARKDULL and HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

By these consolidated appeals, Lorraine W. Brown, as administratrix, C.T.A. of the estate of Andrew G. Brown, respondent in the trial court, seeks review of an adverse summary final judgment and order denying motion for leave to file amended answer.

The essential facts are that after the will of Andrew G. Brown was admitted to probate, Elizabeth Hanger filed a petition for transfer of personal property alleging that between 1968 and 1971, Dr. Brown had given her stock securities as a gift inter vivos or a gift causa mortis. She sought an order which would satisfy the transfer agents’ requirements pursuant to the rules of the Securities and Exchange Commission. Brown filed an answer and affirmative defenses denying that the stock certificates were given to Hanger as a gift. Hanger moved for summary judgment which the court granted, finding that Hanger was the recipient of a valid gift of the stock certificates. Final judgment was entered in which the court declared Hanger to be the owner of the stock, and authorized the transfer of the shares to her.

Brown primarily contends that the court erred in entering summary judgment because Hanger failed to carry the burden of establishing the absence of a genuine issue of material fact in that there is conflicting evidence concerning the validity of Dr. Brown’s signature; and the evidence fails to establish either a gift inter vivos or a gift causa mortis. We agree and reverse on the authority of Kline v. Pyms Suchman Real Estate Company, 303 So.2d 401 (Fla. 3d DCA 1974); DeMaggio v. Brasserie Restaurant, 320 So.2d 49 (Fla. 3d DCA 1975). See also 13 Fla.Jur., Evidence, Section 319, which recites with approval the admissibility of the nonexpert opinion of the widow as to the authenticity of her deceased husband’s signature.

Reversed and remanded.


text:
    C. J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 76-990.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Arthur Joel Berger, Asst. Atty. Gen., and Gregg Spieler, Legal Intern, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Prior to a hearing on a petition for delinquency, the respondent filed a written motion, sworn to by his attorney, to suppress identification testimony of the victim of the alleged crime. The trial judge refused to accord the respondent a hearing on this motion prior to trial.

The motion was legally sufficient to allege an impermissible suggestion by the prosecuting attorney to the complaining witness as to the identification of the defendant. Therefore, the motion being legally sufficient, the trial judge should have accorded the defendant a hearing on this motion prior to trial of the cause. See: T. C. v. State, 336 So.2d 17 (Fla. 1st D.C.A. 1976).

Therefore, this matter is reversed and returned to the trial court for a new trial, at which time the defendant shall be accorded a pre-trial hearing on his motion to suppress.

Reversed and remanded, with directions.


text:
    Bruce Randolph GORDON and Allstate Insurance Company, Appellants, v. Danilo GOODRICH, Appellee.
    No. 76-1106.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Rehearing Denied July 20, 1977.

      Talburt, Kubicki & Bradley and Robert J. Dickman, Miami, for appellants.
    No appearance by counsel for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

This appeal is taken from an order granting appellee’s (plaintiff-counterdefendant) motion for voluntary dismissal over appellants’ (defendants-counterplaintiffs) objection.

Appellee filed a complaint against appellants for injuries sustained in an automobile accident. Appellants subsequently answered the complaint and filed a compulsory counterclaim against appellee. At the day of the trial, during noon recess and after the jury had been empanelled, appel-lee moved for leave to take a voluntary dismissal of the complaint, pursuant to Fla. R.Civ.P. 1.420(a)(2). Appellants’ attorney objected to the voluntary dismissal and advised the court that the counter-claimants stood ready to proceed with the trial on the counterclaim. Nevertheless, the court granted the voluntary dismissal and by order, dismissed appellant’s counterclaim on the grounds that said counterclaim sought damages less than the court’s jurisdictional amount. In addition, the court directed that the action on the counterclaim (for property damage) be brought in the county court in and for Monroe County, Florida. From the above order, this appeal follows.

Florida. R.Civ.P. 1.420(a)(2) provides, in part, that:

“If a counterclaim has been served by a defendant prior to the service upon him of the plaintiff’s notice of dismissal, the action shall not be dismissed against defendant’s objections unless the counterclaim can remain pending for independent adjudication by the court.” [Emphasis added.]

In dismissing appellants’ counterclaim on the ground that the recovery sought would be less than the jurisdictional amount required by the circuit court, we believe the learned trial judge committed reversible error.

Initially, we note that a counterclaim will not be dismissed for failure to meet the jurisdictional amount of the circuit court, as long as the original claim upon which the counterclaim is based exceeds the jurisdictional amount of said court. Columbus Mills, Inc. v. Dionne, 328 So.2d 467 (Fla. 2d DCA 1976). Once the circuit court has jurisdiction over the claim and counterclaim, a subsequent dismissal of the claim will not divest the circuit court of jurisdiction over the counterclaim, even though said counterclaim, in and of itself, does not meet the jurisdictional amount of the circuit court. See National Juice Corporation v. Gilligan, 63 So.2d 914 (Fla.1953).

Accordingly, that portion of the order dismissing the counterclaim is reversed and the cause is hereby remanded with directions to reinstate the counterclaim upon the trial docket. Johns v. Puca, 143 So.2d 568 (Fla. 2d DCA 1962). That portion of the order granting appellee’s motion for voluntary dismissal pursuant to Fla.R.Civ.P. 1.420(a)(2), is affirmed.

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


text:
    Maria VINAS and Simon C. Vinas, her husband, Appellants, v. PILOT FREIGHT CARRIERS, INC., a Florida Corporation, Michael J. Mas, and State Farm Automobile Insurance Company, Appellees.
    No. 76-1113.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Rehearing Denied July 20, 1977.
    Weissenborn, Burr & Hyman and Leonard F. Burr, Miami, for appellants.
    Greene & Cooper and Marc Cooper, Cor-lett, Merritt, Killian & Sikes, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. International Sales-Rentals Leasing Company v. Nearhoof, 251 So.2d 349 (Fla. 3d DCA 1971); Consolidated Mutual Insurance Company v. Hampton Shops, Inc., 332 So.2d 101 (Fla. 3d DCA 1976). Compare Delta Rent-A-Car, Inc., v. Rihl, 218 So.2d 469 (Fla. 4th DCA 1969).


text:
    CARA A SCHOOL UNIFORMS, INC., d/b/a Cara "A", Appellant, v. VICTORIA FABRICS CORP., a Florida Corporation, Appellee.
    No. 76-1148.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Joseph A. Ferrara and Richard L. Zapf, Coral Gables, for appellant.
    Faunce, Fink & Forman and Gerald For-man, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

The defendant counter-plaintiff, Cara A School Uniforms, Inc., doing business as Cara A, was sued upon an open account for goods sold and delivered. Cara A cross-claimed alleging that due to late delivery and delivery of defective materials, it lost profits. After a trial before the court without a jury, judgment was entered for the plaintiff, Victoria Fabrics Corporation, in an amount less than its full claim. This appeal is from that judgment.

The evidence is conflicting and complex. The only substantial question presented is whether the evidence is sufficient to support the findings of the trier of fact. We hold that the evidence is sufficient. See Hill v. Coplan Pipe & Supply Co., Inc., 296 So.2d 567 (Fla. 3d DCA 1974).

Appellant’s point urging that the trial judge, as the trier of fact, had a duty to explain how he reached the amount of the verdict is without merit. Cf. Coker v. Hayes, 16 Fla. 368 (1878); and Velsor v. Allstate Insurance Company, 329 So.2d 391 (Fla. 2d DCA 1976).

Appellant’s remaining points have been examined in the light of the argument and the record and found not to present reversible error.

Affirmed.


text:
    GRAYBAR ELECTRIC COMPANY, INC., Petitioner, v. STATE of Florida, DEPARTMENT OF REVENUE, Respondent.
    No. 76-1932.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Rehearing Denied July 28, 1977.
    George A. Buchmann, South Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., and Patricia S. Turner, Asst. Atty. Gen., Tallahassee, for respondent.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

The Florida Department of Revenue, through the Governor and the Cabinet of the state of Florida, adopted an order assessing a sales tax against a corporation in Florida for certain sales of merchandise made by the corporation for foreign export. The corporation petitions this court for a writ of certiorari to review this order.

The issue presented for review is whether goods manufactured in Florida and sold to a corporation outside the continental United States are subject to a Florida state sales tax when the seller delivers the goods in Florida to the purchaser’s wholly owned subsidiary corporation possessing a state-issued export sales tax number who thereafter causes the goods to be delivered to a common carrier for shipment to the foreign purchaser. We hold that in the absence of formal state export licensing procedures, such a sales tax is unauthorized under section 212.06(5)(a), Florida Statutes (1975), because the goods were delivered for export to a “licensed exporter.”

The petitioner, Graybar Electric Co., Inc., is a wholesale electric distributing company in Florida. Two of its foreign customers are Triumpho Electric, Inc. in the Virgin Islands and Grand Bahama Development Co., Ltd. in the Bahamas. For exporting purposes, Triumpho owns Caribbean Supply Co., a subsidiary corporation formed in Florida. Grand Bahama owns America Devco, Inc., a subsidiary corporation also formed in Florida for exporting purposes. The Florida Department of Revenue issued an export sales tax number to both Caribbean Supply Co. and America Devco, Inc. It is undisputed that the state of Florida has no other procedures by which these subsidiary corporations could become licensed exporters.

Between November 1, 1973 and February 28, 1975, Graybar sold electrical equipment in the amount of $237,634.57 to Triumpho in the Virgin Islands and sold similar equipment in the amount of $21,407.55 to Grand Bahama in the Bahamas. In each case, Graybar made the deliveries of the merchandise in Florida to Caribbean Supply Co. and America Devco, Inc., respectively, who in turn caused the merchandise to be placed on a common carrier for shipment to the respective foreign purchasers. The merchandise was stored in warehouses in Miami for a short time prior to export. There were also sales of merchandise made by Graybar to other foreign purchasers but the sales tax imposed thereon is not questioned here.

The Florida Department of Revenue assessed a sales tax against Graybar on the above sales. Graybar contested the tax and a hearing was held by an administrative hearing officer in which the tax assessment was upheld. Sections 120.565, 120.57, Florida Statutes (Supp.1976). The hearing officer made certain findings of fact and submitted a recommended order. This order was subsequently adopted by the Governor and Cabinet of the state of Florida acting as head of the Florida Department of Revenue. Graybar has filed this petition for writ of certiorari to review the order only insofar as it assesses the sales tax in question as to the Triumpho and Grand Bahama sales.

Section 212.05, Florida Statutes (1975), imposes a sales tax on the sale of certain tangible goods in Florida. Section 212.-06(5)(a), Florida Statutes (1975), provides that this tax shall not be imposed upon export goods under certain conditions, to wit:

“It is not the intention of this chapter to levy a tax upon tangible personal property imported, produced or manufactured in this state for export, provided that tangible personal property shall not be considered as imported, produced or manufactured for export unless the importer, producer or manufacturer delivers the same to a licensed exporter for exporting, or to a common carrier for shipment outside the state or mails the same by United States mail to a destination outside the state . . .” [Emphasis added].

The Florida Supreme Court in McGilvray v. O’D. Askew, 340 So.2d 475 (Fla.1976) (Opinion filed December 9, 1976), has interpreted this statute to create a presumption that tangible personal property cannot be considered export goods exempt from the state sales tax unless one of three conditions obtain: (1) the property is delivered to a licensed exporter for exporting, or (2) the property is delivered to a common carrier for shipment out of the state, or (3) the property is mailed by the United States mails outside the state. The presumption created is rebuttable by the taxpayer upon a showing of any one of the above three conditions, in which case the property would not be subject to the state sales tax.

We deal here with the first condition which defeats the state sales tax on export goods, to wit: property delivered to a “licensed exporter for exporting. . . .” There is no dispute that the merchandise delivered by Graybar to Caribbean Supply Co. and America Devco, Inc. was made for export purposes to effect a sale by Graybar to foreign purchasers outside the continental United States. The only contested question is whether Caribbean Supply Co. and America Devco, Inc. are “licensed exporter^]” within the meaning of the above statute.

The Florida Department of Revenue issues export sales tax numbers to exporting companies in Florida which apparently has the effect of exempting such companies from the state sales tax when they hold goods for foreign export. The Department of Revenue has adopted no other procedures by which an exporter can be licensed by the state. Having issued appropriate export sales tax numbers to Caribbean Supply Co. and America Devco, Inc., we believe that the Department of Revenue is in no position to claim that these companies are not in fact licensed exporters since there is no other procedure, by which they could become so licensed. They are recognized as exporters by the state and in the absence of any other formalized procedures, it is our view that these companies are licensed exporters within the meaning of Section 212.-06(5)(a), Florida Statutes (1975). Accordingly, the tangible personal property delivered to them by Graybar for foreign export is not subject to the state sales tax.

Graybar has also contended that the sales tax herein violates Article I, Section 10, Clause 2, of the United States Constitution which provides as follows:

“No State shall, without the consent of the Congress, lay any impost or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws . . . .”

Graybar relies on the following authorities in support of its position: Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80 (1946); State ex rel. Sunair Electronics, Inc. v. Green, 177 So.2d 490 (Fla.1st DCA 1965), affirmed 180 So.2d 464 (Fla.1965); Gough Industries, Inc. v. State Board of Equalization, 51 Cal.2d 746, 336 P.2d 161 (1959).

We find it unnecessary to reach the constitutional question presented since the tax imposed herein is unauthorized under Florida law. Only if the tax was permissible under Florida law would it be proper for this court to address the constitutional question.

Mr. Justice Brandéis stated the applicable law in his concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936):

“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.” Id. at 347, 56 S.Ct. at 483. [Emphasis added].

Florida follows the same rule of judicial restraint in deciding questions of constitutional dimension. The Florida Bar v. Rayman, 238 So.2d 594 (Fla.1970); In re Estate of Sale, 227 So.2d 199 (Fla.1969). We, accordingly, decline to reach the constitutional issue presented here since the case can be disposed of on another ground which presents solely a question of statutory construction.

The petition for certiorari is granted, the order under review is quashed as it relates to the tax imposed upon Graybar Electric Co. for the sale of tangible personal property to Triumpho Electric Co., and Grand Bahama Development Company, Ltd., and the cause is remanded for proceedings consistent with this opinion.


author: HENDRY, Chief Judge.

text:
    Clarence JACKSON and Rosa Jackson, his wife, Appellants, v. BISCAYNE MEDICAL CENTER, INC., a Florida Corporation, Michael Sussman, Individually and Argonaut Insurance Company, a California Corporation, Appellees.
    No. 77-233.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.

      Stanley L. Seligman, Hollywood, and Michael Gross, Miami, for appellants.
    Vernis & Bowling, Coconut Grove, and Richard Blank, Miami, for appellees.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   HENDRY, Chief Judge.

Appellants appeal an order dismissing their complaint. We reverse, in part.

The complaint was based upon the factual allegation that appellant Clarence Jackson was wrongfully removed from appellee Biscayne Medical Center, Inc., without medical authorization. In seven counts, the complaint alleged negligence, negligent training, false arrest, malicious prosecution, assault and battery, slander and breach of contract.

Appellees filed a motion to dismiss the complaint based upon both a failure to comply with the “medical liability mediation panel” prerequisite of Section 768.133, Florida Statutes (1975), now renumbered Section 768.44, Florida Statutes (1976 Supp.), and a failure to state a cause of action. The above motion was granted and this appeal follows.

Initially, we note that the order of dismissal did not state the grounds upon which it was based. We are therefore faced with the task of determining which, if any, of the counts can proceed without first being submitted to mediation, pursuant to the aforementioned statutory section. Those counts that may proceed must then be tested to determine whether or not, taking all material allegations as true and viewing them in light of the applicable substantive law, any count states a cause of action. Hochman v. Lazarus Homes Corporation, 324 So.2d 205 (Fla. 3d DCA 1975).

As for counts I and II, couched in terms of negligence and negligent training of hospital employees, respectively, we are of the opinion that the complained of acts giving rise to those counts are within the purview of Section 768.44, Florida Statutes (1976 Supp.) and must first be submitted to a medical liability mediation panel before being maintained in a court of law in this state. See Mount Sinai Hospital of Greater Miami, Inc. v. Wolfson, 327 So.2d 883 (Fla. 3d DCA 1976).

Counts III through VII, however, have no connection with medical negligence (malpractice). Appellant was allegedly falsely arrested and maliciously prosecuted for trespassing at the hospital. In an attempt to remove appellant from the hospital premises, employees of the hospital allegedly assaulted and battered appellant, and slandered him while he was being arrested for trespassing. Also alleged as a specific count was breach of contract by appellee, for the wrongful removal of appellant from the hospital.

We are of the opinion that the above counts, as alleged, do not fall within the scope of Section 768.44, Florida Statutes (1976 Supp.). Appellees contend that since all of the complained of acts arise from one “transaction,” i.e., the alleged wrongful removal of appellant from the hospital without medical authorization, each count should be subject to the mediation prerequisite. We disagree. None of the remaining causes of action deal with medical malpractice. Simply stated, they are all intentional acts, allegedly committed by hospital employees on hospital premises, while within the scope of their employment. The fact that these acts originate, rather remotely, from a hospital-patient relationship, will not bring them into the ambit of medical malpractice. To hold otherwise would lead to the absurd result that every wrongful act committed by a hospital employee in a hospital surrounding amounts to medical malpracticé. Certainly, our Legislature did not desire those results. It is therefore our view, that the trial judge erred in dismissing counts III through VII on the basis that they should have proceeded pursuant to the mediation prerequisite of Section 768.44, Florida Statutes (1976 Supp.).

In addition, after carefully reviewing the allegations of Counts III through VII, we are of the opinion that those counts do state valid causes of action. We note that as to count IV, malicious prosecution, appellees stated in their motion to dismiss that no cause of action was pled because the case against appellant was “nolle prossed.” The law is, however, clear, that the essential prerequisite to bringing an action of malicious prosecution — a bona fide termination of prosecution in favor of a plaintiff — is satisfied if there is either an adjudication on the merits in a judicial proceeding or, if there is a nolle prosequi or declination to prosecute entered in good faith by the prosecutor. Davis v. McCrory Corporation, 262 So.2d 207 (Fla. 2d DCA 1972).

Appellees further stated in their motion that count III, false arrest, could not be prosecuted against appellee, Biscayne Medical Center, because the hospital never arrested appellant. Notwithstanding the above contention, the courts of Florida have equated the torts of false arrest and false imprisonment, stating that the difference is one of terminology. Johnson v. Weiner, 155 Fla. 169, 19 So.2d 699 (1944); 32 Am.Jur.2d, False Imprisonment, § 2 (1967). In that appellee did allegedly exercise unlawful restraint upon appellant, detaining him against his will, and did procure the arrest of appellant, we hold that a cause of action does lie against appellees — though said count might have been more descriptively styled as one for false imprisonment, rather than false arrest. See Washington County Kennel Club, Inc. v. Edge, 216 So.2d 512 (Fla. 1st DCA 1968).

Accordingly, the order of dismissal is affirmed, as it applies to counts I and II, negligence and negligent training; however, as it applies to counts III through VII, the order of dismissal is reversed and remanded for further proceedings not inconsistent herewith.

Affirmed in part; reversed and remanded in part.


text:
    Edward V. PIKULSKI a/k/a E. V. Pikulski, Appellant, v. Virginia Lee HOFFMAN et al., Appellees.
    No. 76-336.
    District Court of Appeal of Florida, Second District.
    June 15, 1977.
    Elwood P. Safron, Safron & Rooney, Pun-ta Gorda, for appellant.
    Archie M. Odom, Farr, Farr, Haymans, Moseley & Odom, Punta Gorda, for appel-lees.
   PER CURIAM.

Appellant brought this appeal from a final judgment quieting title to a certain tract of realty in favor of appellees. This action initially commenced with appellant’s filing an action for adverse possession with color of title. Appellees subsequently filed a counterclaim seeking a final judgment quieting their title to the land in question. At the close of appellant’s presentation of his case at trial, the court allowed appellant to amend his action to add' a claim for adverse possession based on the establish-., ment of a boundary by acquiescence. At the conclusion of the nonjury trial, the court found that appellant had failed to establish the allegations of his complaint; that appellees had established the allegations of their counterclaim; and thus adjudged that appellees are the fee simple owners of the property at issue, as described in the final judgment, and quieted appel-lees’ title thereto. Appellant’s motion for rehearing was denied, and this appeal ensued.

While this case first gave us pause, involving several complex issues of fact and law which required a thorough study of the record and briefs submitted herein, we are of the view that the trial court was correct in its findings of fact and conclusions of law. No reversible error is apparent.

In view whereof, the final judgment appealed from should be, and it is hereby, affirmed.

McNULTY, Acting C. J., and GRIMES and OTT, JJ., concur.


author: McNULTY, Acting Chief Judge.

text:
    J. Ed STRAUGHN, as Executive Director of the Florida Department of Revenue, James L. Roden, as the Tax Assessor of Polk County, Florida, and Hobson Strain, as the Tax Collector for Polk County, Florida, Floyd Woods, Jack Simmers, Charles E. Whitten and Edwin Thompson, as all of the members of the Tax Adjustment Board of Polk County, Florida, Appellants, v. K & K LAND MANAGEMENT, INC., a corporation, Appellee.
    Nos. 76-1129, 76-1130.
    District Court of Appeal of Florida, Second District.
    June 15, 1977.

      Robert L. Shevin, Atty. Gen., and Zollie M. Maynard, Jr., Asst. Atty. Gen., Tallahassee, for appellants Straughn and Dept, of Revenue.
    Michael D. Martin, Lakeland, for appellant Roden.
    Ernest J. Rice and Lee Bennett of Lowndes, Peirsol, Drosdick & Doster, Orlando, for appellee.
   McNULTY, Acting Chief Judge.

We renew our acquaintance with the parties to this cause. Again, the question is whether K & K Land Management is entitled to a “green belt” assessment of certain lands — this time for the taxable year 1974.

The undisputed relevant facts are that K & K Land Management purchased approximately 350 acres of producing citrus grove. Twenty-five acres thereof were subsequently developed into an amusement attraction known as Circus World, but the remainder of the citrus grove was continued on as before the purchase. The total purchase price of the entire 350 acre tract was approximately six times the previously assessed agricultural assessment, thus bringing into play the following provisions of Section 193.461(4)(c), Florida Statutes (1973):

“Sale of land for a purchase price which is three or more times the agricultural assessment placed on the land shall create a presumption that such land is not used primarily for bona fide agricultural purposes. Upon a showing of special circumstances by the landowner demonstrating that the land is to be continued in bona fide agriculture, this presumption may be rebutted.” (Italics supplied.)

The proceedings below were to determine whether the presumption under this subsection was rebutted as to that portion of the tract being continued on as a producing citrus grove. The trial judge concluded that the presumption was rebutted and that the grove was entitled to a “green belt” assessment. We agree.

To begin with, we have recently held in Waiden v. Tuten that for entitlement to an agricultural assessment the “green belt” law now requires a “good faith commercial agricultural use” of the land in question and that a profit motive is a relevant criterion in determining whether an agricultural use is in fact a good faith commercial agricultural use. Here, the court expressly found, and there was ample evidence to support it, that insofar as the grove operation itself was concerned, it constituted a bona fide commercial agricultural operation. The precise question herein, however, is whether the grove operation itself can stand on its own feet for purposes of entitlement to a “green belt” assessment therefor or, because of the exorbitant purchase price paid for the entire tract (admittedly, ultimately to be developed fully as a tourist attraction), the statutory presumption must prevail even as against the bona fide grove use in the absence of a showing that a reasonable return on the total investment is contemplated or possible from such grove use. Appellants would answer this question in the affirmative but we cannot agree.

Again referring to Walden v. Tuten, supra, we opined in that case that the primary legislative purpose of the “green belt” law was “to encourage continued agricultural use by assisting a farmer-owner to make a reasonable profit from such use, vis-á-vis, a like profit should it be put to a nonagricul-tural use.” We expand that opinion to conclude that it was the laudable legislative purpose additionally to encourage continued bona fide commercial agricultural use in general, commercial agrarian use being in society’s best interest.

The “profit motive” we spoke of in Tuten doesn’t necessarily mean that a profit need immediately be sought on the total investment, i. e., the purchase price for an entire tract of land. The purchase price may well have contemplated that the land is to be held for speculation or for a future nonagri-cultural use, but the statute obviously permits this so long as the land, or at least some of it, is nevertheless presently put to a bona fide commercial agricultural use. Moreover, a potential profit to be made solely from the claimed commercial agricultural use may indeed only sustain such agricultural use itself or, perhaps, it may simply help carry the lands or reduce the investment until such time as the full speculative profits on the purchase price can be realized; but that doesn’t mean that such agricultural use should be any less a legislatively encouraged agricultural use. Tax assessors and, in turn, the courts are well equipped to separate truth from sham on the issues of bona fides in such agricultural use and the extent thereof, giving due regard to the criteria set forth in Section 193.461(3)(b), Florida Statutes.

In short, we hold that an agricultural use of land may stand on its own feet insofar as entitlement to a “green belt” assessment is concerned; and appellants’ contention to the contrary — that economic factors (here, a reasonable return on the overall purchase price for the entire tract) must outweigh actual physical use factors — is without merit.

In view whereof, the judgment appealed from should be, and it is hereby, affirmed.

GRIMES and SCHEB, JJ., concur.

      . See Straughn v. K & K Land Management, Inc., 326 So.2d 421 (Fla.1976); Straughn v. K & K Land Management, Inc., 342 So.2d 1107 (Fla.2d DCA 1977).

      . 347 So.2d 129 (Fla.2d DCA 1977), Opinion filed June 8, 1977.

      . Section 193.461, Florida Statutes (1973) as amended in 1972.

      . Note 2, at p. 131.

      . See Straughn v. K & K Land Management, Inc., 326 So.2d 421 (Fla.1976).


author: OTT, Judge.

text:
    Pamela S. FREELAND, formerly known as Pamela S. Purcifull, Appellant, v. Lee Morton PURCIFULL, Appellee.
    No. 76-1589.
    District Court of Appeal of Florida, Second District.
    June 15, 1977.

      Douglas A. Wallace, Bradenton, for appellant.
    No appearance for appellee.
   OTT, Judge.

Appellant/former wife appeals an order modifying the final judgment of dissolution of marriage which relieved the appel-lee/former husband from making any alimony payments beyond a certain date.

The marriage of the parties was dissolved in 1973. The final judgment of dissolution incorporated a property settlement agreement which provided for the payment to appellant of $250 a month for five years or until her remarriage. In October of 1975, the lower court reduced the amount of support to $195 a month pursuant to a stipulation of the parties. On May 26, 1976 the husband filed a petition to terminate or reduce alimony payments on the ground that the financial circumstances of the parties had changed substantially since the entry of the final judgment of dissolution. The husband alleged that the wife was no longer in need of alimony payments and that he was not financially able to make the payments.

The trial court granted the petition. Appellant claims that this was error. We agree and reverse.

There is no question that the husband is on the verge of bankruptcy. However, the evidence concerning the husband’s substantial monthly expenses furnishes no legal rationale for a termination of his support obligations to his wife. In Scott v. Scott, 285 So.2d 423, 424-25 (Fla. 2d DCA 1973) the court held that “[wjhere the amount of alimony is based upon agreement a heavier burden rests upon a party seeking a modification than would otherwise be required.” See Quinn v. Quinn, 307 So.2d 848, 848-49 (Fla. 2d DCA 1975); Tsavaris v. Tsavaris, 307 So.2d 845, 847 (Fla. 2d DCA), cert. denied, 322 So.2d 914 (Fla.1975).

The husband lives alone in a four bedroom, three bath house which he purchased and furnished after the final judgment of dissolution of marriage. Moreover, 'the majority of his substantial indebtedness — over and above his house and furniture payments — was also incurred after the dissolution of marriage.

To justify a modification of alimony or support payments the change of circumstances including financial circumstances of one or both of the parties must be substantial. Chastain v. Chastain, 73 So.2d 66 (Fla. 1954); See Section 61.14(1), Florida Statutes (1975); Quinn v. Quinn, supra; DeFrancisco v. DeFrancisco, 273 So.2d 780 (Fla. 2d DCA 1973).

At the time of dissolution the wife’s earnings were approximately $8,900. The fact that she now makes $11,900 is not sufficient to bar the continued receipt of alimony payments. The mere fact of an increase in the wife’s income does not amount to a substantial change in circumstances. Accord, Reese v. Reese, 330 So.2d 89 (Fla. 1st DCA 1976). More important is the fact that the husband’s income has risen during the same period from $15,700 to $21,300. Although the court is sympathetic with the financial plight of the husband, a modification or termination of an agreement to pay alimony is not justified where the husband’s inability to pay is caused by matters within his control. Cf., Gamse v. Gamse, 291 So.2d 620 (Fla. 3d DCA 1974).

Reversed.

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


author: SCHEB, Judge.

text:
    KELLER BUILDING PRODUCTS OF SARASOTA, INC., Appellant, v. PAN AMERICAN ALUMINUM CORP. et al., Appellees.
    No. 77-310.
    District Court of Appeal of Florida, Second District.
    June 15, 1977.
    Eurich Z. Griffin and Michael F. Nuecht-erlein of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.
    No appearance for appellee.
   SCHEB, Judge.

In this appeal we consider whether venue of a third party complaint lies in the county where the principal action is pending, despite the fact that venue for the third party action, if brought independently, would lie in another county. We conclude that absent a showing of great inconvenience to the third party defendant, venue is proper where the principal action is pending.

The principal litigation involved a suit in Sarasota County by a condominium association against the owner-developer of the realty, and Gulf Contracting which built the condominium. The suit sought damages for alleged defects in construction of the building. Gulf Contracting brought in several of its sub-contractors, including Keller, as third party defendants. The contractor contended that Keller used unsuitable materials and installed the windows in an un-workmanlike manner. Keller, as third party defendant, in turn, filed what it styled as a “Fourth Party Complaint,” seeking indemnity from its supplier Pan American, a corporation with its principal place of business in Dade County. Appellant Keller charged Pan American with negligent design and breach of implied warranty in respect to the windows it furnished for installation in the condominium. •

Appellee Pan American moved to dismiss on grounds that the fourth party complaint failed to allege a cause of action against it, and further, that venue against Pan American was improperly laid in Sarasota County. The trial judge dismissed without leave to amend, but did not set forth the reason for his ruling. Our review of Keller’s complaint convinces us it states a cause of action for indemnity against the supplier, Pan American. See Fla.R.Civ.P. 1.180. We conclude the trial court’s unstated basis for denial must have been on the question of venue. This conclusion is buttressed by the fact that the trial court did not grant leave to amend.

The three views as to venue requirements in third party actions are summarized in Dorr-Oliver, Inc. v. Linder Industrial Machinery Co., 263 So.2d 287 (Fla. 3d DCA 1972). Under the first view the venue requirement of an independent action applies, i. e., venue must be established for third party claims just as if they are brought independently. The second view holds that a third party proceeding growing out of the same subject matter is ancillary to the original action, and therefore, an independent test of the third party claim for venue is not necessary. Under the third view, venue in a third party action is ordinarily ancillary to the principal litigation, but the granting or denial of leave to prosecute is within the sound discretion of the trial court.

The Third District Court of Appeal adopted this third view in Dorr-Oliver. We agree with our sister court.

Although the independent test of the first view creates certainty and definiteness, it does not achieve the laudable objective of avoiding multiple actions. Whenever possible the subject matter of litigation should be determined in one lawsuit. The Third District in Central Truck Lines, Inc. v. White Motor Corp., 316 So.2d 579, 580 (Fla. 3d DCA 1975), stated the philosophy of third party practice when it said:

The general purpose of third party practice is to avoid two actions which should be tried together in order to save the time and expense involved in duplication of evidence, to obtain consistent results from identical or similar evidence and to do away with the serious handicap to a defendant of a time difference between a judgment against him and a judgment in his favor against the third party defendant. 3 Moore’s Federal Practice, Third Party Practice § 14.04. Also see Authors’ Comment to Rule 1.180, RCP.

Yet, to always consider venue as ancillary to the principal suit as required by the second view would remove from the trial judge needed flexibility. There are times when manifest inconvenience would likely result from requiring a party to litigate at the place of the principal action, and the trial court should have some latitude to control venue in such cases.

We think the third view is both sound and workable. Under this approach the trial judge still retains discretion to govern the litigation. However, as stated in Dorr-Oliver, the trial court should not deny third parties the right to bring actions at the venue of the original proceedings unless the party seeking abatement shows that great inconvenience would result.

Here there was no showing of any inconvenience by Pan American, and inconvenience will not be presumed. We hold, therefore, the trial judge abused his discretion in dismissing the fourth party complaint by Keller.

Accordingly, Keller’s complaint is reinstated and this cause is reversed for further proceedings consistent with this opinion.

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

      . Though the complaint is styled a “Fourth Party Complaint,” we feel it is in essence a third party complaint and treat it as such. However, it will be referred to as a fourth party complaint to avoid confusion with the other third party complaint.


author: RAWLS, Acting Chief Judge.

text:
    Leslie SLAY, Appellant, v. STATE of Florida, Appellee.
    No. BB-481.
    District Court of Appeal of Florida, First District.
    June 17, 1977.
    James Ron Shelley, Public Defender, Jon W. Searcy and Lewis R. Lindsey, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   RAWLS, Acting Chief Judge.

Slay was charged by a two-count information with aggravated assault and sexual battery.

The record clearly reveals that Slay withdrew his plea of not guilty and pled nolo contendere to the aggravated- assault count pursuant to a plea arrangement whereby he was to be placed on probation. The trial court accepted the terms of the plea arrangement, cautioned Slay on the consequences of probation violations, and then announced that sentencing would be set for a later date. Slay, who was then in jail for contempt of a child support decree, was released on his own recognizance with the trial court’s admonition that he would be returned to jail if he failed to support his children.

Eleven months later, Slay went before the trial court for sentencing. After discussing Slay’s alleged drinking problems and his continuing failure to support his children, the trial court, without affirmatively offering Slay an opportunity to withdraw his plea of nolo contendere, adjudged him guilty of aggravated assault and sentenced him to 30 months imprisonment.

Slay argues that the 11-month delay between his plea and the imposition of sentence constituted a denial of due process, and that the trial court erred in failing to affirmatively offer him an opportunity to withdraw his negotiated plea prior to the imposition of sentence. We agree and reverse.

When a defendant is adjudged guilty of a criminal offense, the trial court should either sentence him or place him on probation. However, when the trial court elects to suspend imposition of sentence upon a defendant, it must place him on probation under the supervision and control of the Florida Department of Offender Rehabilitation. Thus, it was error for the trial court to suspend imposition of sentence for a period of eleven months without placing Slay on probation pursuant to Chapter 948, Florida Statutes.

Slay’s plea of nolo contendere to aggravated assault was pursuant to a plea bargain whereby the state recommended that he be placed on probation. This agreement was concurred in by the trial court. Having later reached the contrary determination that incarceration was appropriate, the trial court should have affirmatively offered Slay an opportunity to withdraw his plea prior to the imposition of sentence.

Reversed and remanded with directions that either the trial court impose probation in accordance with the plea bargain or vacate the judgment and offer appellant an opportunity to withdraw his nolo conten-dere plea.

SMITH and ERVIN, JJ., concur.

      . The sexual battery count was later nolle prossed.

      . In announcing sentence, the trial court stated: “. . . [Although he was not on a supervised probation under sentence of probation, he was definitely in a probationary status as far as the court is concerned.” The trial court went on to say: “. . . [I]t would be the court’s position that he was out on a probationary status and that he has definitely violated that."

      .There may be justifiable delay in either sentencing or placing a convicted individual on probation for procedural reasons such as the determination of motions and other matters arising between verdict and judgment, or for the purpose of gaining information necessary to the imposition of a just sentence, or during the pendency of other charges, or for other good and valid reasons. Bateh v. State, 101 So.2d 869 (Fla. 1st DCA 1958), cert. disch. 110 So.2d 7 (Fla.1959). See also Helton v. State, 106 So.2d 79 (Fla.1958).

      . Sec. 948.01(5), Fla.Stat. (1975), provides: “(5) In no case shall the imposition of sentence be suspended and the defendant thereupon placed on probation unless such defendant be placed under the custody of said [department].”

      . Fla.R.Crim.P. 3.171(c); Thomas v. State, 327 So.2d 63 (Fla. 1st DCA 1976); and Adams v. State, 328 So.2d 48 (Fla. 1st DCA 1976). accident or with respect to any injury to person or property shall, at the time of taking such statement, furnish to the person making such statement a true and complete copy thereof. Any person having taken, or having possession of any written statement or a copy of such statement, by any injured person with respect to any accident or with respect to any injury to person or property shall, at the request of the person who made such statement or his personal representative, furnish the person who made such statement or his personal representative a true and complete copy thereof. No written statement by an injured person shall be admissible in evidence or otherwise used in any manner in any civil action relating to the subject matter thereof unless it shall be made to appear that a true and complete copy thereof was furnished to the person making such statement at the time of the making thereof, or, if it shall be made to appear that thereafter a person having possession of such statement refused, upon request of the person who made the statement or his personal representatives to furnish him a true and complete copy thereof. (Emphasis added).


text:
    Robert J. PRESLEY, Appellant, v. STATE of Florida, Appellee.
    No. 75-330.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Emmett A. Moran, Altamonte Springs, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Robert J. Presley, seeks reversal of a summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850. His motion alleged that the state knowingly used perjured testimony at the trial. Such allegation is not conclusively refuted by the record. Consequently, it was sufficient to have entitled appellant to an evidentiary hearing thereon. Rayburn v. State, 203 So.2d 212 (Fla.2d DCA 1967); Dutchville v. State, 209 So.2d 696 (Fla.2d DCA 1968).

Accordingly, we reverse the appealed order and remand the cause with instructions to conduct an evidentiary hearing on the aforesaid allegation and to make findings of fact and conclusions of law with respect thereto.

Reversed and remanded, with instructions.

CROSS, ANSTEAD and DAUKSCH, JJ., concur.


author: MAGER, Chief Judge. ANSTEAD, Judge,

text:
    The GREYHOUND CORPORATION, Appellant, v. Joyce A. CLARK, and Alfred Clark, her husband, Appellees.
    No. 76-82.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Rehearing Denied July 25, 1977.
    Marjorie D. Gadarian of Jones, Paine & Foster, P. A., West Palm Beach, for appellant.
    Patrick C. Massa of Cone, Owen, Wagner, Nugent, Johnson & McKeown and Larry A. Klein, West Palm Beach, for appellees.
   MAGER, Chief Judge.

Upon review and due consideration of the briefs and record herein we are of the opinion that the trial court’s order granting plaintiff-appellee’s motion for new trial has not been shown by defendant-appellant to be inconsistent with the pronouncements in Cloud v. Fallis, 110 So.2d 669 (Fla.1959).

To the extent that any portion of the order granting new trial was based upon the court’s reasoning regarding the applicability of section 92.33, Florida Statutes (1975), such portion may be deemed to be surplusage. In connection with the new trial we hold that section 92.33 is inapplicable to a tape-recorded statement of an injured party. The admissibility of the tape recording and any reference thereto would be determined by the usual customary rules of evidence relating to admissibility.

AFFIRMED, as modified.

DOWNEY, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

I believe the trial court abused his discretion in ordering a new trial. There was no error in the admission of evidence concerning a tape-recorded statement of the appel-lee, Joyce A. Clark, and an examination of the record does not support the finding that the verdict was contrary to the manifest weight of the evidence. The verdict and judgment should be reinstated.

      . 92.33 Written statement concerning injury to person or property; admission as evidence

      Every person who shall take a written statement by any injured person with respect to any


author: DOWNEY, Judge.

text:
    Edward MERCER, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-230, 76-1105.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.

      Richard L. Jorandby, Public Defender, Frank B. Kessler and Tatjana Ostapoff, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

The sole question we deem necessary to discuss on these consolidated appeals has to do with the sufficiency of the evidence to demonstrate an overt act so as to prove the charge of attempted robbery.

The key testimony against appellant, Mercer, came from Henson, an employee of a gasoline station. Henson testified that Mercer had been a customer at the gasoline service station for some months. On several occasions prior to September 21, 1975, Mercer had discussed with him the operation of the gas station, including the handling of the money and the shift transition in the morning. Mercer also learned that the manager had the only key to the safe. On the night of September 21,1975, Mercer stopped in the station and talked to Henson. He sought to enlist Henson’s help in robbing the station the following day. Henson refused, and Mercer left, but not before telling Henson: he was going to rob the station about 8:30 the next morning; he would have a machine gun; and he would shoot anyone who got in his way. Right on time the next day Mercer and another man drove into the station at 8:30 a. m. Mercer asked if the manager was there. Henson replied that he was not, and Mercer advised Henson he and his companion would return at 9:30 a. m.

Although Mercer had mentioned the possibility of robbing the station before September 21, 1975, Henson had not taken him seriously. However, after Mercer departed at 8:30 on September 21st, Henson called the manager of the station and advised him of the threatened robbery and the manager notified the police. Shortly thereafter a deputy sheriff arrived at the station and interviewed Henson. During the interview, the deputy saw Mercer’s car cruise by the station. The deputy pursued the car and stopped it several miles away where a frisk of the occupants revealed two live shotgun shells in Mercer’s pocket. A search of the car revealed a sawed off shotgun and a shaving kit that contained gloves, binoculars, shoelaces, a rubber band, a knife, and a woman’s stocking which was knotted on the end.

Mercer attacks his conviction of attempted robbery on the ground that the court erred in not granting a judgment of acquittal because the evidence did not show any overt act in furtherance of the robbery. As this court stated in Cooper v. Wainwright, 308 So.2d 182, 184-185 (Fla. 4th DCA 1975)

“. . . the crime of attempted robbery requires the formation of an intention to commit the crime of robbery and the doing of some physical act intended to accomplish the commission of the crime ... On the issue of criminal intent the jury may consider the accused’s conduct before, during and after the alleged attempt, along with any other relevant circumstances.”

The overt act necessary to fulfill the requirements of attempted robbery, or an attempt to commit a crime, must be adapted to effect the intent to commit the crime; it must be carried beyond mere preparation, but it must fall short of executing the ultimate design. Gustine v. State, 86 Fla. 24, 97 So. 207 (1923); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA 1967).

Applying those principles to the facts of this case, had Mercer been apprehended on September 21, 1975, at his home while loading the shot gun into his ear just prior to leaving for the gas station, we suppose everyone would agree he was involved at most in preparation, and such preparation does not reach the level of an attempt. However, given the backdrop of the previous night’s threat, when Mercer drove into the station at 8:30 a. m. and inquired if the manager was there, we believe the jury could properly find that the announced scheme to rob the station had matured to the point where it met the minimum standards necessary to constitute an attempt to commit a robbery. The robbery failed for want of a manager! Henson evinced no doubt as to Mercer’s purpose in being there that morning. He testified: “At 8:30. They were going to do it right then if the manager had been there.” In the face of Mercer’s announced intention the night before to rob the station the next morning at 8:30 a. m.; his arrival at the appointed time; his inquiry as to the manager’s presence should lead all but the most naive to conclude that he was there to separate the station’s operators from their money.

With regard to the overt act necessary to constitute an attempt, the case at bar is not unlike the case of People v. Moran, 18 Cal. App. 209, 122 P. 969 (1912). There the appellant was found guilty of an attempt to commit robbery. The thrust of his appeal was that the evidence showed only acts of preparation; it failed to demonstrate any overt act toward the commission of a robbery. The court held that:

“The evidence tends to show that either appellant or his codefendant, at between 1 and 2 o’clock in the morning, pushed open the swinging doors of a saloon situate on Kentucky street, thrust his head within, and seeing that there were about 12 men in the saloon, withdrew and crossed the street and joined his codefendant. The two men walked away, but were immediately followed by an officer to whom they had been pointed out. The defendants were followed by the officer for about two blocks, when they took refuge in a lumber yard, where, after a search of five or six minutes, they were found by the officer hiding behind a pile of lumber. Each defendant wore around his neck a handkerchief, with holes so fashioned that it might serve as a mask to conceal the features. Appellant had upon his person a loaded pistol. His companion had upon his person cartridges, and a pistol was shortly after-wards found, by a second officer, concealed where defendants were apprehended.
“The facts in evidence were ample to justify the conclusion that the person who pushed open the saloon door did so for the purpose and with the intent to enter the saloon, and with force and violence feloniously take from the possession of the inmates such money as they might have upon them. The pushing open the door and the partial entry through the same were overt acts that went beyond mere acts of preparation. They were such overt acts as amounted to an attempt to commit the intended crime within the doctrine laid down in People v. Stites, 75 Cal. 570, 17 P. 693. The large number of persons in the saloon prevented the consummation of the robbery.”

The other point on appeal, which concerns the propriety of the order denying appellant’s motion to suppress evidence, is without merit. Accordingly, we hold that there is adequate evidence in the record to support the denial of appellant’s motion for judgment of acquittal and to support the judgment and sentence appealed from.

AFFIRMED.

MAGER, C. J., and LETTS, J., concur.