author: PER CURIAM. NATHAN, Judge,

text:
    John BOWLES et al., etc., Appellants, v. D. MITCHELL INVESTMENTS, INC., et al., Appellees.
    No. 77-205.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Rehearing Denied Nov. 22, 1978.
    See 365 So.2d 1028.
    Bailey & Dawes and Guy B. Bailey, Jr., Brown, Malman & Salmon and Philip A. Murphy, Jr., Miami, for appellants.
    Leo Greenfield, North Miami, for appel-lees.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

This is an appeal by two of three plaintiffs in a mortgage foreclosure action from a final judgment which limited the sum recoverable by imposing a penalty for usury. Although multiple issues were presented for our consideration, we need only consider the single dispositive issue of whether the court was correct in its finding that the testimony of plaintiffs’ accountant reflected a particular sum as the total interest paid or due from the commencement of the loan until its stated maturity date.

The record reflects that on January 8, 1975, three plaintiffs, Baker Mortgage Company, Cameron-Brown Investment Group and Beneficial Standard Mortgage Investors, filed a complaint to foreclose a mortgage which was originally arranged between Baker and the defendant, D. Mitchell Investments, Inc., on July 6, 1972. On November 8,1973, in consideration of an additional loan from Baker, Mitchell delivered a supplemental promissory note to Baker together with a modification to the mortgage. Plaintiffs Cameron and Beneficial participated with Baker in making the loans. Since May, 1974, the defendant was in default.

At trial, the primary issue to be resolved was whether or not the loan was usurious. Plaintiffs stipulated that the principal sum due on the mortgage loan was $3,242,000.00, and defendant conceded that the interest received, taken or extracted did not equal or exceed 25% per annum. Voluminous testimony was taken during a three-day trial. Some six months after the conclusion of the trial, the court rendered its final judgment. The trial judge made the following findings of facts:

1. On or about July 6, 1972, Baker, acting on behalf of itself as a participant and as agent for Cameron, entered into a construction loan transaction with Mitchell. The loan was evidenced by a promissory note dated July 6,1972, under which the sum of $2,000,000.00 was to be advanced. The note was secured by a mortgage of like date on the property . The note provided for payment of interest at 9% per annum, or 4% above the prime rate of [a certain bank], whichever amount was greater. Baker participated in the loan to the extent of $200,000.00 while Cameron participated to the extent of $1,800,000.00.
2. On November 8, 1973, Baker, acting on behalf of itself as a participant and as agent for Cameron and Beneficial, entered into a “Modification to Mortgage Deed” with Mitchell, and increased the mortgage loan to $3,250,000.00, which increase was then evidenced by an additional note for $1,250,000.00, dated November 8, 1973. This note provided for payment of interest of 14% per annum, or 4% above the prime rate of [the bank], whichever was the higher rate.
3. Advances were made under the mortgage and construction loan agreement of July 6, 1972, as modified by the agreement of November 8,1973, until the total sum of $3,242,000.00 was advanced to Mitchell.
4. Baker, a professional mortgage lender, continued to handle all the matters pertaining to the placing and servicing of said loan and the increase thereof, and was a participant in the loan to the extent of $200,000.00 while Cameron and Beneficial, both professional mortgage lenders, each participated equally in the ownership of the balance of the loan and advanced equal funds in connection with the funding of same.
5. Although the notes did not become due until May 8,1975, in May of 1974, the loan went into default and as of October 28, 1974, Baker on behalf of itself and its participants, made demand for past due interest, then unpaid in the sum of $252,-554.54, together with the unpaid principal amount of $3,242,000.00.
6. The total interest as computed by the Plaintiffs as being paid or due from the date of commencement of the loan up to and including the maturity date of the loan of May 8, 1975, as reflected by the testimony of the Plaintiffs’ accountant, was $996,055.09, of which sum $534,324.73 was paid.
7. With the exception of an accountant who was called by the Plaintiff, whose testimony was relied upon by this Court to determine the rate of interest charged, no single witness or officer of any of the three Plaintiff companies has testified or endeavored to explain or refute in any manner the testimony establishing the usurious nature of the transaction.
8. It has been established by unrefuted, clear and convincing testimony, that Baker, acting as a participant and as the authorized agent of Cameron and Beneficial, received, and in some instances divided with Cameron and Beneficial, the following additional fees, commissions, payments or extractions, each of which should be added to the interest paid or demanded:
A. A 2% discount to Baker and/or Cameron _$ 40,000.00
B. A disbursement fee to Baker_$ 2,000.00
C. A title insurance kickback to Baker, in excess of the cost of the title policy written by Baker_$ 7,184.50
D. A discount fee divided between Cameron and Beneficial _$ 48,750.00
E. A disbursement fee to Baker_$ 8,125.00
P. An administration fee to Baker $ 500.00
G. An application fee to Baker_$ 12,500.00
H. A brokerage commission fee to Baker, by way of a note and second mortgage on the property_$ 65,000.00
I. Improvements made to Baker’s office and paid for by Mitchell ... $ 3,000.00
J. Pee received by Baker and admitted by Affidavit as an extra interest charge _$ 15.500.00
Total additional charges_8202.550.50
(Citations omitted)
9.When the foregoing charges or extractions are added to the total interest paid, demanded or extracted, as reflected previously, in the amount of $996,055.09, the sum paid, demanded or extracted, as interest is the amount of $1,198,605.59. The maximum sum allowable as interest at 15% per annum for the sums outstanding from time to time, for the period of the loan as testified to by the Plaintiffs’ witness is the sum of $1,006,157.47.
10. The sums paid, demanded or extracted, exceed the maximum permitted by Florida Statute, by $192,442.62. The total cumulative interest, fees, commissions and extractions paid, demanded or extracted, when reduced to a percentage, yields a true rate of interest on the sums outstanding from time to time of 18.2% per annum.
11. That the taking of such interest, fees, commissions and/or extractions, is contrary to the provisions of Chapter 687, Florida Statutes, and is in violation thereof. The penalties as therein provided should be assessed against the Plaintiffs. (Emphasis supplied)

The court ruled that the plaintiffs hold a valid first mortgage on the property in the principal sum of $3,242,000.00. It then ordered that all interest on the principal balance be forfeited; that judgment be rendered in favor of the defendant on the usury counterclaim in the sum of $1,473,-750.44, double the amount of the interest paid, demanded or extracted, which sum is to be offset from the principal; and that the net sum due from the defendant to the plaintiffs in the amount of $1,768,249.56, shall be paid within 60 days, failing which the clerk of the court is to sell the property at public auction.

Examination of the final judgment reveals the following pertinent data:

1. The total interest “as computed by the Plaintiffs as being paid or due" was_$ 996,055.09
2. The total “additional charges” were $ 202,550.50
3. The total interest “paid, demanded or extracted” was_$1,198,605.59
4. The total allowable interest was_$1,006,157.47
5. The excess of the sums “paid, demanded or extracted” over the sums allowable was _$ 192,442.62

The conclusion that the sums “paid, demanded or exacted” exceeded the allowable interest was premised on figures the court found were supplied by plaintiffs’ accountant, Mr. Murdock. Plaintiffs, appellants herein, vigorously refute this finding. They argue that Murdock did not actually testify that the sum of $996,055.09 was the total interest they considered due but rather this figure was based upon computations orchestrated by defense counsel during cross-examination. Since no usury would have occurred if the total interest sought was $192,442.62 less than that computed by the court, it is essential that we examine Mur-dock’s testimony. After a review of Mur-dock’s direct and cross-examination testimony, we cannot agree with plaintiffs’ contention that the figures relied upon by the trial court in determining the subject transaction to be usurious were orchestrated by defense counsel. Although Mr. Murdock initially maintained that the $252,554.45 figure represented the total unpaid interest due as of May 8, 1975, after extensive cross-examination by able defense counsel, he finally recanted and admitted that the above figure represented only the interest due as of December 2, 1974 as evidenced by the following colloquy:

‡ ‡ *
“Q. Now, in making your computation as to what was due May 8 of 1975, did you consider that $252,554.55 of past due interest up to December 2 of 1974?
“A. Yes, I did.
“Q. Well, do I misunderstand then that your computation shows $252,554.55 as of May 8 of 1975?
“A. Yes.
“Q. Well, the complaint says at December 2, 1974, that amount was due, does it not?
“A. Yes, it does.
“Q. Then would not the interest be computed by adding on a daily per diem basis from December 2, 1974? You have until May 8 of 1975.
* * * * * *
“THE COURT: Do you understand the question?
“THE WITNESS: Yes, sir, I do.
“Q. [By Mr. Greenfield] Would it not?
“A. No, it would not.
“Q. You would not compute the interest in that fashion by adding to the amount that was due on December 2, 1974, on a per diem basis up to the date of May 8 of 1975?
“A. No sir.
“Q. Why not?
“THE WITNESS: Our review of Baker Mortgage’s records was for the fact, since this loan was on a variable rate to determine if we were entitled to additional interest, to determine if the interest was in excess of fifteen percent.
As a consequence, the last billed portion was deemed to be the appropriate amount of interest due.
“Q. So are you telling me that you found that the books of Baker reflected that as a matter of fact he was demanding and had collected interest in excess of fifteen percent?
“A. No, I didn’t say that he had.
“Q. Well, you have reduced down the amount that Mr. Baker computed, have you not?
“A. No, sir, I did not reduce the amount that Mr. Baker computed. The last amount billed for the books and records of Baker Mortgage Company is equivalent to the $252,000 as indicated.
“Q. As of December 2, 1974, is that correct?
“A. Our review was conducted as of 2-28-1975.
“Q. But at that time the indication in his books and records were that there was $252,554.55 due on December 2, 1974, is that not correct?
“A. That’s correct.
“Q. Would you tell us what the computation would be from December 2, 1974, up to May 8 of 1975, at the daily per annum interest rate of, I think, it is $1,333 per day?
[Emphasis Supplied]
******
“THE COURT: December 2, 1974, through May 8, 1975, sir.
“THE WITNESS: Sir, that would be 157 days at a rate of thirteen thirty-two thirty-three, and it would equal $209,-175.81.
“Q. [By Mr. Greenfield] When you add the $252,554.55 to the $209,175.81, what do you get, Mr. Murdock?
“A. Would you give me the first number again, please?
“Q. $252,554.55.
“A. $461,730.36.”

Furthermore, the record reflects the use by defense counsel of the $1,333 as the per diem rate of interest to compute the remainder of the outstanding interest due as of May 8, 1978 was the per diem interest rate computed by the plaintiffs as reflected in the affidavit of proof filed by plaintiffs ($1,332.33 to be exact).

In addition, this affidavit indicates that the unpaid interest through August 31,1975 amounts to $568,682.80. If as plaintiffs argue the total interest due as of the maturity date (May 8, 1978) is $252,554.55, then the interest due (computed on the per diem rate of $1,332.33) would only be $405,-772.50 in contrast to plaintiffs own figure of $568,682.80. The figures reflected in this affidavit lend support to defense counsel’s contention that the $252,554.55 did not represent the outstanding interest due as of May 8.

In the final analysis, we conclude there is competent substantial evidence as set out above to support the trial court’s determination of usury and, therefore, under the holdings in Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972), Shaw v. Shaw, 334 So.2d 13 (Fla.1976), and more recently Delgado v. Strong, 360 So.2d 73 (Fla.Sup.Ct. opinion filed June 8, 1978), we must affirm the judgment inasmuch as it is not the province of this court to reevaluate the evidence or substitute our judgment for that of the trial court.

Affirmed.

NATHAN, Judge,

dissenting.

This is an appeal by two of three plaintiffs in a mortgage foreclosure action from a final judgment which limited the sum recoverable by imposing a penalty for usury. Although multiple issues were presented for our consideration, we reach only a single point. The definitive issue is whether the court was correct in its finding that the testimony of plaintiffs’ accountant reflected a particular sum as the total interest paid or due from the commencement of the loan until its stated maturity date. Despite the presumption of correctness with which such finding arrives in this court, a careful review of the crucial testimony reveals that the trial court misconstrued it. As a result, the finding which specifically states that the total interest found to be paid or due was “computed by the Plaintiffs” and was “reflected by the testimony of the Plaintiffs’ accountant,” was erroneous.

The record reflects that on January 8, 1975, three plaintiffs, Baker Mortgage Company, Cameron-Brown Investment Group and Beneficial Standard Mortgage Investors, filed a complaint to foreclose a mortgage which was originally arranged between Baker and the defendant, D. Mitchell Investments, Inc., on July 6, 1972. On November 8,1973, in consideration of an additional loan from Baker, Mitchell delivered a supplemental promissory note to Baker together with a modification to the mortgage. Plaintiffs Cameron and Beneficial participated with Baker in making the loans. Since May, 1974, the defendant was in default.

At trial, the primary issue to be resolved was whether or not the loan was usurious. Plaintiffs stipulated that the principal sum due on the mortgage loan was $3,242,000.00, and defendant conceded that the interest received, taken or extracted did not equal or exceed 25% per annum. Voluminous testimony was taken during a three-day trial. Some six months after the conclusion of the trial, the court rendered its final judgment. The trial judge made the following findings of facts:

1. On or about July 6, 1972, Baker, acting on behalf of itself as a participant and as agent for Cameron, entered into a construction loan transaction with Mitchell. The loan was evidenced by a promissory note dated July 6, 1972, under which the sum of $2,000,000.00 was to be advanced. The note was secured by a mortgage of like date on the property. . The note provided for payment of interest at 9% per annum, or 4% above the prime rate of [a certain bank], whichever amount was greater. Baker participated in the loan to the extent of $200,000.00 while Cameron participated to the extent of $1,800,000.00.
2. On November 8, 1973, Baker, acting on behalf of itself as a participant and as agent for Cameron and Beneficial, entered into a “Modification to Mortgage Deed” with Mitchell, and increased the mortgage loan to $3,250,000.00, which increase was then evidenced by an additional note for $1,250,000.00, dated November 8, 1973. This note provided for payment of interest of 14% per annum, or 4% above the prime rate of [the bank], whichever was the higher rate.
3. Advances were made under the mortgage and construction loan agreement of July 6, 1972, as modified by the agreement of November 8,1973, until the total sum of $3,242,000.00 was advanced to Mitchell.
4. Baker, a professional mortgage lender, continued to handle all the matters pertaining to the placing and servicing of said loan and the increase thereof, and was a participant in the loan to the extent of $200,000.00 while Cameron and Beneficial, both professional mortgage lenders, each participated equally in the ownership of the balance of the loan and advanced equal funds in connection with the funding of same.
5. Although the notes did not become due until May 8,1975, in May of 1974, the loan went into default and as of October 28, 1974, Baker on behalf of itself and its participants, made demand for past due interest, then unpaid in the sum of $252,-554.54, together with the unpaid principal amount of $3,242,000.00.
6. The total interest as computed by the Plaintiffs as being paid or due from the date of commencement of the loan up to and including the maturity date of the loan of May 8, 1975, as reflected by the testimony of the Plaintiffs’ accountant, was $996,055.09, of which sum $534,324.73 was paid.
7. With the exception of an accountant who was called by the Plaintiff, whose testimony was relied upon by this Court to determine the rate of interest charged, no single witness or officer of any of the three Plaintiff companies has testified or endeavored to explain or refute in any manner the testimony establishing the usurious nature of the transaction.
8. It has been established by unrefuted, clear and convincing testimony, that Baker, acting as a participant and as the authorized agent of Cameron and Beneficial, received, and in some instances divided with Cameron and Beneficial, the following additional fees, commissions, payments or extractions, each of which should be added to the interest paid or demanded:
A. A 2% discount to Baker and/or Cameron _$ 40,000.00
B. A disbursement fee to Baker _$ 2,000.00
C. A title insurance kickback to Baker, in excess of the cost of the title policy written by Baker_$ 7,184.50
D. A discount fee divided between Cameron and Beneficial _$ 48,750.00
E. A disbursement fee to Baker_$ 8,125.00
F. An administration fee to Baker _ _ $ 500.00
G. An application fee to Baker_$ 12,500.00
H. A brokerage commission fee to Baker, by way of a note and second mortgage on the property_$ 65,000.00
I. Improvements made to Baker’s office and paid for by Mitchell_$ 3,000.00
J. Fee received by Baker and admitted by Affidavit as an extra interest charge _$ 15.500.00
Total additional charges_$202,550.50
(Citations omitted)
9.When the foregoing charges or extractions are added to the total interest paid, demanded or extracted as reflected previously, in the amount of $996,055.09, the sum paid, demanded or extracted, as interest is the amount of $1,198,605.59. The maximum sum allowable as interest at 15% per annum for the sums outstanding from time to time, for the period of the loan as testified to by the Plaintiffs’ witness is the sum of $1,006,157.47.
10. The sums paid, demanded or extracted, exceed the maximum permitted by Florida Statute, by $192,442.62. The total cumulative interest, fees, commissions and extractions paid, demanded or extracted, when reduced to a percentage, yields a true rate of interest on the sums outstanding from time to time, of 18.2% per annum.
11. That the taking of such interest, fees, commissions and/or extractions, is contrary to the provisions of Chapter 687, Florida Statutes, and is in violation thereof. The penalties as therein provided should be assessed against the Plaintiffs. (Emphasis supplied)

The court ruled that the plaintiffs hold a valid first mortgage on the property in the principal sum of $3,242,000.00. It then ordered that all interest on the principal balance be forfeited; that judgment be rendered in favor of the defendant on the usury counterclaim in the sum of $1,473,-750.44, double the amount of the interest paid, demanded or extracted, which sum is to be offset from the principal; and that the net sum due from the defendant to the plaintiffs in the amount of $1,768,249.56, shall be paid within 60 days, failing which the clerk of the court is to sell the property at public action.

Examination of the final judgment reveals the following pertinent data:

1. The total interest “as computed by the Plaintiffs as being paid or due” was_$ 996,055.09
2. The total “additional charges” were $ 202,550.50
3. The total interest “paid, demanded or extracted” was_$1,198,605.59
4. ' The total allowable interest was_$1,006,157.47
5. The excess of the sums “paid, demanded or extracted” over the sums allowable was _$ 192,442.62

The conclusion that the sums “paid, demanded or extracted” exceeded the allowable interest was premised on figures the court stated were supplied by plaintiffs’ accountant. Plaintiffs, appellants herein, vigorously refute this finding, and contend that the accountant whose evidence is at issue did not testify that the sum of $996,-055.09 was the total interest plaintiffs considered due. Since no usury would have occurred if the total interest sought were $192,442.62 less than that computed by the court, it is critical to this cause that we examine the accountant’s testimony.

When counsel for the plaintiffs called the witness, Mr. Murdock, to the stand, the following pertinent colloquy ensued:

Q At my request, have you computed the amounts of money that were charged in this matter, computed the amounts demanded, and computed the per diem and then all of the other computations to determine the amounts of money that were charged if the Court rendered an order today?
A Yes, I have.
Q [By Mr. Bailey] Now, sir, Mr. Mur-dock, would you then please explain to the Court the interest that has been charged and is due, and explain how you arrived at these numbers?
A . . . . Interest due at the maturity of the loan amounted to $252,554.55, and using a per diem after that date of thirteen thirty-two thirty-three, additional interest is due, $559,578.60, making a total due as of June 30, $812,133.15.
Q Yesterday in an attempt to stipulate on numbers in this case, you sat down with Mr. Leader and went over his computations.
A Yes, I did.
Q Does the $812,000 figure that you have there bear any relation to the million seven thousand dollar figure that he testified about in court yesterday?
A No, it doesn’t.
The figure that he offered the Court yesterday was through the maturity of the loan, one million seven thousand, as I remember.
Q The maturity of the loan being what date?
A 5-8-1975.
Q May 8, 1975?
A Right.
Q What is your corresponding number as to what amounts were actually called for here?
What is your number that is comparable to that thousand or that million seven thousand dollars?
A As allowable, you mean?
Q Yes, sir. He said the maximum allowable in his opinion would have been a million seven thousand some odd dollars.
What is the figure that is actually demanded here to be paid?
Q . The total interests collected, assuming Mr. Greenfield is right, that there are two different loans, the total interest collected in the first loan was $305,757.91?
A The total interest collected on the second loan is $228,566.82, making a grand total of $534,324.73.
THE WITNESS: Going on and just coming down about another quarter, two computations below this number, we pick up with that number through 5-8 as collected. $534,324.73, then to that we add that bill through 5-8,1975, of $252,554.55, making a total bill and collected of $786,-879.28.
Q Did I ask you for purposes of this computation to assume that the charges, that all of the charges of Mr. Greenfield’s claims are interest, to assume that those items are interest?
A Yes, you did.
Q And that is the number alleged additional interest there, $204,600?
A Yes, it is.
Q And the total, then, giving Mr. Greenfield his argument, for purposes of argument, the total would be $991,479.28, right?
A Yes, it would.
Q Now, that is less, is it not, than the million seven thousand dollars that Mr. Leader opined yesterday would be a matter of usurious interest?
A Yes, it is.
Q Then, I think you have told us before that the computations below and the words MAT on your notation there, mean maturity?
That computation of the $559,000 is what?
A The $559,000 represents the per diem interest at $1,332.33 after maturity through June 30, 1976.
Q So that the total interest due today, if you add' that per diem charge to the amount claimed at the time this lawsuit was commenced, you would come up with the figure of $812,133.15?
A That’s correct.

Upon cross examination by defendant’s counsel, the following pertinent testimony was given:

Q When you computed the amount presently due, did you make a computation of how much interest is due as of May 8, 1975?
A Yes, I did.
Q How much was that amount?
A That amount was $252,554.55.
Q Is that the computation of what is due on the combination of both loans as of May 8, 1975?
A Yes, sir, that’s correct.
Q You are sure, now?
A Yes, sir.
Q Did you ever have occasion to read the complaint upon which this suit is brought?
A Yes, I have reviewed the complaint.
Q When did you review it?
A The first time that I had seen the complaint was yesterday afternoon.
Q Did you review Paragraph 3 of the complaint? Would you read it, please?
A ‘As of May, 1974, defendants have been in default under the above referenced loan documents by having failed to pay interest thereon as required by the above referred to loan documents. Following numerous demands for the past due interest on October 28, 1974, plaintiff, Baker Mortgage Company, sent a Notice of Default to both defendants (Exhibit K hereto). As of December 2, 1974, defendants owed plaintiffs $252,-554.55 in past due interest, together with the principal sum of $3,242,000.’
Q Now, in making your computation as to what was due May 8, 1975, did you consider that $252,554.55 of past due interest up to December 2 of 1974?
A Yes, I did.
Q Well, do I misunderstand then that your computation shows $252,554.55 as of May 8, of 1975?
A Yes.
Q Well, the complaint says at December 2,1974, that amount was due, does it not?
A Yes, it does.
Q Then would not the interest be computed by adding on a daily per diem basis from December 2, 1974? You have until May 8 of 1975.
Q You would not compute the interest in that fashion by adding to the amount that was due on December 2, 1974, on a per diem basis up to the date of May 8, 1975?
A No, sir.
THE WITNESS: Our review of Baker Mortgage’s records was for the fact, since this loan was on a variable rate to determine if we were entitled to additional interest, to determine if the interest was in excess of fifteen percent.
As a consequence, the last billed portion was deemed to be the appropriate amount of interest due.
Q So are you telling me that you found that the books of Baker reflected that as a matter of fact he was demanding and had collected interest in excess of fifteen percent?
A No, I didn’t say that he had.
Q Well, you have reduced down the amount that Mr. Baker computed, have you not? ■
A No, sir, I did not reduce the amount that Mr. Baker computed. The last amount billed for the books and records of Baker Mortgage Company is equivalent to the $252,000 as indicated.
Q As of December 2, 1974, is that correct?
A Our review was conducted as of 2— 28-1975.
Q But at that time the indication in his books and records were that there was $252,554.55 due on December 2, 1974, is that not correct?
A That’s correct.
Q Would you tell us what the computation would be from December 2, 1974, up to May 8 of 1975, at the daily per annum interest rate of, I think, it is $1,333 per day?
A Your Honor, I object to that as calling for speculation. It was never done.
THE COURT: Overruled.
THE WITNESS: Sir, that would be 157 days at a rate of thirteen thirty-two thirty-three, and it would equal $209,175.81.
Q [By Mr. Greenfield] When you add the $252,554.55 to the $209,175.81, what do you get, Mr. Murdock?
A $461,730.36.
Q [By Mr. Greenfield] Now, Mr. Mur-dock, when you take that number that we have now arrived at, $461,736, and you add it to the interest paid of $534,324.73, what is the total of that?
A You asked me to add the $534,324.73 and the $461,730.36, is that correct?
Q Yes, sir.
A I get $996,055.09.
Q So, that the total of that interest collected and the interest computed from the complaint, and giving effect to the per diem rate forward, is a total of $996,-055.09, correct?
A Would you repeat that again please?
Q A total of the interest collected of $534,324.73 plus the interest as alleged in the complaint of $252,554.55, and giving effect to the per diem rate, and bringing that current to May 8, of 1975, gives a total of $996,055.09, is that correct?
A Yes, it does.
Q And using the same computations or the same processes, Mr. Leader’s total number was $949,789.53, was it not?
A Sir, I don’t remember that number.
Q You have no recollection of the number at all?
A I remember it was something like fifty-seven less than the total allowable of $1,007,000.
Q So that if you took your interest allowable of $1,006,187.46 as against the $996,055.09, which we now have here, you only have a difference of some ten thousand, is that correct?
A That would be correct.
Q So that any charges under these computations, any charges which would be imposed upon the loan in excess of $10,-000 would have brought the yield or the return, or the interest which the loan would yield in excess of fifteen percent, is that right?
A Yes, sir. The answer is yes.

Examination of the above quoted testimony shows that the figures adduced by Mr. Murdock on his own were:

Total interest collected through May 8, 1974-$534,324.73
Total interest due between May 8,1974, and May 8,1975 -$252.554.55 Total collectible interest through maturity $786.879.28

When the “additional charges” of $202,-550.50 are added to this figure, the sum reached is $989,429.78, which is well below the agreed upon allowable sum of $1,006,-157.47.

On the other hand, on cross examination, the figures adduced were:

1. Total interest collected through May 8,1975 _$534,324.73
2. 3. Interest claimed as of December 2,1974 _$252,554.55 Additional interest due from December 2, 1974, to May 8, 1975, based on a per diem charge of $1,332.33 _ .$461,730.36 $209.175.81 allegedly
4. Total interest / demanded _$996.055.09

When the “additional charges” are added to this figure, the sum reached is $1,198,605.59, or $192,448.12 over the allowable interest. It was this computation which the trial court relied upon and which is stated, in the final judgment, to be Mr. Murdock’s testimony.

We are unable to agree with the trial court that these figures represent the testimony of plaintiffs’ accountant. On the contrary, the figures were derived from defense counsel’s cross examination of Mr. Murdock, and were based, not on the witness’ methods of computation, but upon computations orchestrated by defense counsel. In essence, the witness, when arriving at these figures, was performing as a mechanical computer, the programmer having been defense counsel.

It would be both unfair and inaccurate to characterize Mr. Murdock’s mechanical responses to counsel’s questions as plaintiffs’ computations of the interest to be charged. The misleading implication of finding Number 6 is that plaintiffs’ accountant construed the loan documents to obligate defendants for unpaid interest of $461,730.36, when in fact, he stated that his conclusion was that $252,554.55 remained due at the maturation date of the loan. Insofar as it describes the crucial computation as a reflection of the testimony of plaintiffs’ accountant, the trial court’s finding contradicts the testimony which it cites, and upon which it assertively relies.

By this opinion, we make no determination as to the correctness of either method of computation, nor do we reach any of the other points raised by appellants because these arguments may become moot if, on remand, the trial court determines the transactions were not usurious. We decide today only that the final judgment does not reflect a fair characterization of the evidence therein relied upon. Indeed, the precise issue to be determined upon remand is the actual interest remaining due and payable at the maturity date of the loan. We therefore reverse the decision of the trial court and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.

      . We note the existence of a minor, inconsequential arithmetical error of $5.50 in the court’s figures. The difference between $1,198,605.59 and $1,006,157.47 is $192,448.12.

      . The court’s figures.

      . ******
      “BEFORE ME, the undersigned authority, personally appeared JOHN L. BAKER who, by me being first duly sworn upon oath, deposes and says:
      “1. That the Affiant is President of the Plaintiff, BAKER MORTGAGE COMPANY, and Affiant has personal knowledge of all the circumstances and allegations of fact set forth and described in the Complaint in the said Cause and knows and herein states that same are true and correct.
      “2. That with respect to the mortgage which Plaintiffs seek to foreclose in this Cause, the following amounts are due:
      “(a) Unpaid principal balance on said mortgage and note as of May 7, 1975: $3,242,000.00 “(b) Unpaid interest through August 31, 1975: 568,682.80
      “(c) Interest on said principal balance is accruing at the rate of 15% per annum which is a per diem of: $ 1.332.33
      “(d) Clerk’s filing fee: 25.00
      “(e) Sheriffs fees for service of process 225.00
      “(f) Abstracting: 75.00”
      * * * * * *
      [Emphasis Supplied]

      . $1,332.33 per diem interest rate _x 115 number of days from May 8 - 153,217.95 August 31, 1975 + 252.554.55 $405,772.50

       Judge Nathan’s opinion was written as a majority opinion but did not receive a majority vote. Because of his untimely demise, his opinion is filed in its original form as a dissent.

      . We note the existence of a minor, inconsequential arithmetical error of $5.50 in the court’s figures. The difference between $1,198,605.59 and $1,006,157.47 is $192,448.12.

      . The court’s figures.

      . Appellants contend that the computation based on a per diem charge of $1332.33 is irrelevant, because this charge is derived from a post-maturity rate of interest which is higher than that allowed for pre-maturity interest. They contend the figure should have been used only to compute interest due from date of maturity to date of trial. Moreover, appellants contend that the interest claimed in their complaint as being due on December 2, 1974 does not represent an appropriate starting point for additional computation of interest.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Ronald CURRENS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1534.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.
    Rehearing Denied Nov. 29, 1978.
    Edward M. Kay of Varón, Stahl, Kay & Roderman, Hollywood, succeeded by Larry G. Turner, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

This appeal challenges the denial of a motion to suppress evidence after which the appellant entered a plea of no contest to charges of possession of marijuana and hashish. He was convicted and sentenced.

At approximately 1:30 A. M., a police officer observed a sports car, legally parked, with the windows closed and engine off. The car contained three occupants, including appellant. After passing the car, the officer stationed himself at a vantage point where he could observe the car for approximately three to four minutes. Seeing no unusual activity, the officer drove his motorcycle up to and adjacent with the car at which point the appellant, noticing the officer, made a quick motion with his hand between his legs. Appellant was ordered out of his vehicle and upon exiting same the officer observed what appeared to be marijuana on the floor of the vehicle. Appellant was arrested for possession of marijuana which was seized pursuant to the arrest.

We find that under these circumstances the officer did not have a sufficient reason for ordering appellant to leave his vehicle. The officer could investigate appellant’s presence in the legally parked vehicle only if he had “a founded or reasonable suspicion which requires further investigation to determine whether its [the car’s] occupants have committed, are committing, or are about to commit a crime.” Lower v. State, 343 So.2d 410 (Fla. 2d DCA 1977). Having observed the vehicle for approximately three to four minutes and seeing no suspicious activity, the officer had no reason to approach the vehicle or its occupants. Upon the officer’s arrival, appellant’s quick movement of his hand between his legs did not, in and of itself, constitute such a founded or reasonable suspicion, nor did it constitute probable cause to enable the officer to order appellant out of his car for the purpose of conducting an investigation. There was no indication that appellant was involved in any criminal activity, nor was there any reason to believe that the safety of the officer or the public was endangered.

As the officer’s initial detention of appellant was illegal, the subsequent seizure of the marijuana is similarly illegal because had it not been for the initial approach without justification the marijuana would never have been discovered. As this Court stated in Thomas v. State, 297 So.2d 850 (Fla. 4th DCA 1974):

“The stop here can only be classified as an exploratory one based on unfounded suspicion.”

Accordingly, the motion to suppress should have been granted. We therefore find that the trial court erred in denying the motion to suppress and reverse the conviction and sentence and remand with instructions to discharge the appellant. Bailey v. State, 319 So.2d 22 (Fla.1975); Bennett v. State, 350 So.2d 14 (Fla. 4th DCA 1977); Vollmer v. State, 337 So.2d 1024 (Fla. 2d DCA 1976); Lower, supra.

REVERSED AND REMANDED.

DOWNEY, C. J., concurs.

RIVKIND, LEONARD, Associate Judge, dissents without opinion.


author: PER CURIAM.

text:
    Richard Karl GOETHEL and Benjamin Sardinas, Appellants, v. FIRST PROPERTIES INTERNATIONAL, LTD., a Swiss Corporation, Trader’s Cove Communities No. One Corp., a Florida Corporation, Trader’s Cove Communities Unit No. Two Corp., a Florida Corporation, Trader’s Cove Communities Unit No. Three Corp., a Florida Corporation, Trader’s Cove Communities Unit No. Four Corp., a Florida Corporation, West Volusia Holding Company, a Florida Corporation, and Willow Run Farm, Inc., a Florida Corporation, Appellees.
    Nos. 77-2300 to 77-2303.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.

      Goethel & Garcia Vidal and Richard Karl Goethel, Coral Gables, for appellants.

      Smith & Bennett and Carlton F. Bennett, Orlando, for appellees.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

The plaintiffs, Richard Karl Goethel and Benjamin Sardinas, have brought four appeals from several interlocutory orders in a proceeding in an action brought against defendants First Properties International, Ltd.; Trader’s Cove Communities No. One Corp.; Trader’s Cove Communities Unit No. Two Corp.; Trader’s Cove Communities Unit No. Three Corp.; Trader’s Cove Communities Unit No. Four Corp.; West Volu-sia Holding Company; and Willow Run Farm, Inc. The appeals have been consolidated for all appellate purposes. They are as follows:

Case No. 77-2300 — An appeal from an order holding the plaintiffs in contempt of court for their failure to abide by a previous order of the trial court directing the return of a certain promissory note to the defendants.

Case No. 77-2301 — An appeal from an order denying plaintiffs’ motion to stay and motion to set supersedeas bond entered by the trial court on October 31, 1977.

Case No. 77-2302 — An appeal from an order granting defendants’ motion to set aside final judgment and defaults.

Case No. 77-2303 — An appeal from an order granting the defendants emergency relief entered by the trial court on the fourteenth day of October, 1977. (This order granted to the defendants relief including the return by the plaintiffs to the defendants of a note. The failure to return the note resulted in the order for contempt appealed in case number 77-2300, above.)

The appeal from the order granting the motion to set aside final judgment and defaults (Case No. 77 — 2302) must be considered first because its validity is essential to the validity of all the other orders to be considered.

A short chronology of the events leading up to the setting aside of the defaults is necessary for further discussion of the case. The plaintiffs filed a complaint for damages against the defendant corporations claiming a right to recover for services performed by an attorney and certified public accountant. The plaintiffs attempted to secure service against Trader’s Cove Communities No. One Corp., Trader’s Cove Communities Unit No. Two Corp., Trader’s Cove Communities Unit No. Three Corp., Trader’s Cove Communities Unit No. Four Corp., West Volusia Holding Company and Willow Run Farm, Inc., by service on Robert A. Little, “as a former Director/Trustee.” This service, pursuant to Section 48.101, Florida Statutes (1977), was made on January 28, 1977, and process was served on him as a member of the last board of directors of said corporations. A notice of appearance was filed by counsel for Little on February 24,1977. On March 2, 1977, the attorney for Little filed an answer and served a copy on appellant Goethel who was attorney of record for the plaintiffs. On March 4th, the plaintiffs made a motion for entry of defaults and final judgment and, upon examination of the court file, the trial court entered the defaults and a final judgment based upon affidavits. It appears that the answer filed on behalf of Little was not in the eouit file at the time of the entry of the default, although it had previously been stamped as filed by the clerk of the court.

Acting upon the final judgment entered after the entry of default by the court, the plaintiffs proceeded to enforce their judgment and executed upon personal properties belonging to the defendant corporations on May 17, 1977. Thereafter, several motions for relief from default judgment were filed on behalf of the defendant corporations. Extensive hearings were had, at the conclusion of which the trial judge entered his order granting the second amended motion to set aside final judgment and defaults. The court found that the judgments were void in their entirety and, pursuant thereto, vacated the writs issued for the enforcement of the judgments.

The principal question presented is whether the trial judge abused his discretion in setting aside the final judgments when, as claimed by the appellants, the motions to set aside the judgments were not made within a reasonable time after their entry and because no meritorious defense was tendered. An examination of the record, which is presented to us but which does not contain a transcript of all the hearings, convinces us that the appellants have not met their burden of showing an abuse of discretion. Especially important in this determination is the fact that the record contains evidence that Attorney Goethel knew, or should have known, that there was no communication between Little, who was served as a surviving director, and Adam Phillips, who was the sole stockholder and real party in interest in the corporations sued. Second, it should be pointed out that the Florida Rules of Civil Procedure provide that a defendant may plead at any time up to the entry of the default. See Fla.R. Civ.P. 1.500(c). The record clearly shows the filing of an answer prior to a default. This fact alone constituted a basis for the setting aside of the defaults and the final judgments entered pursuant thereto. Appellants’ contentions that the appellees should be denied their day in court because of their failure to move within a reasonable time is simply not born out by the record inasmuch as it appears that the motions to set aside the defaults were made shortly after the discovery of the true situation. The answer filed by Little, although not a real party in interest, was sufficient to preclude the entry of a default and sufficient to meet the contention that a party moving for relief from default must show a meritorious defense. See Travelers Insurance Company v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977).

We, therefore, conclude that based upon the principal appeal, the order of the trial court setting aside the defaults, and the final judgments entered pursuant thereto, are affirmed. See Country Clubs of Sarasota, Ltd. v. Zaun Equipment, Inc., 350 So.2d 539, 543 (Fla. 1st DCA 1977); and Gordon v. Vaughan, 193 So.2d 474 (Fla. 3d DCA 1967).

In Case No. 77-2301, an appeal from an order denying appellants’ motion to stay and motion to set supersedeas bond entered hy the trial court, we find no abuse of discretion. See Sexton v. Panning Lumber Company, 260 So.2d 898, 903 (Fla. 4th DCA 1972).

The appeal in Case No. 77-2303, from an order of the trial court granting the appellees’ emergency relief, is affirmed upon authority of the general rule that the trial court has control of its own proceedings and, upon a finding of clear error, may withhold such proceedings pending action to correct the error. See F. & B. Ceco, Inc. of Florida v. Galaxy Studios, Inc., 216 So.2d 75 (Fla. 3d DCA 1968); and Bowen v. Manuel, 144 So.2d 341 (Fla. 2d DCA 1962).

The appellant Goethel served as corporate counsel and as an officer and director of the dissolved corporations. The appellant, Sardinas, was an accountant for the corporations. They contend that it was reversible error for the court to enter its order granting emergency relief providing that the defendant corporations might, by posting a cash bond, require the return to the corporations of their books, records and personal property held by the two appellants. The appellants’ briefs maintain that this order subverted their rights as an attorney and a certified public accountant to a retaining and charging lien over personal property belonging to the corporations and coming into the hands of the appellants in their respective capacities. See Herold v. Hunt, 327 So.2d 240 (Fla. 4th DCA 1976). We think it is established that an attorney’s retaining lien and an accountant’s right to retain certain property under Section 473.-191, Florida Statutes (1977), cannot be applied to deprive a dissolved corporation of the means of defending the claims of a former attorney and a former accountant against the corporation’s assets. In the case at hand, the trial court made specific findings of fact that the appellants were adequately secured by the bond provided and that the personal property ordered to be returned was necessary to the defense of the cause. Cf. the various cases at annot. 3 A.L.R.2d 148 (1949). It must be recognized that the claims of lien of the attorney and accountant were equitable in nature. See Nichols v. Kroelinger, 46 So.2d 722 (Fla. 1950). They cannot be used as a sword to force an inequitable situation. Therefore, we hold that the trial court was not in error in allowing the substitution of cash deposited in the registry of the court for the property upon which the plaintiffs claimed a lien. Cf. the principles of law in Sorin v. Shahmoon Industries, Inc., 20 Misc.2d 149, 191 N.Y.S.2d 14, 23 (1959); and Maysonett v. H. J. Butler Bros., Inc., 205 Misc. 430, 132 N.Y.S.2d 124 (1954).

The appeal in Case No. 77-2300, from an order holding the plaintiff (Goe-thel) in contempt of court for his failure to abide by a previous order of the trial court which directed the return of a certain promissory note to the defendants, is moot inasmuch as it appears that Goethel has delivered the note and has been discharged from contempt. Upon the affirmance of the order for the return of the note, the appeal of the order holding the plaintiff in contempt is of no further importance in the ultimate determination of this cause. Thereupon, these consolidated appeals are affirmed.

Affirmed.

      . Missing from the record are transcripts of the hearings held on July 29, 1977; September 15, 1977; October 21, 1977; October 26, 1977 (5 p.m. hearing); and October 27, 1977.


author: ANSTEAD, Judge.

text:
    George BROWN, as Administrator of the Estate of Mabel Garnet Brown, Deceased, Appellant, v. Roger D. CREWS, M.D. and Argonaut Insurance Company, Appellees.
    No. 76-2270.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.
    Rehearing Denied Nov. 29, 1978.
    Joel T. Daves, III of Burdick & Daves, West Palm Beach, for appellant.
    Marjorie D. Gadarian of Jones, Paine & Foster, P.A., West Palm Beach, for appel-lees.
   ANSTEAD, Judge.

This is an appeal from a judgment entered in a medical negligence case pursuant to a directed verdict which was granted in favor of the appellees, Roger D. Crews, M.D. and Argonaut Insurance Company.

Mabel Brown, then 60 years old, came under the care of Dr. Crews in early 1973 for weight loss and anemia. Mrs. Brown had a history of being chronically ill. She was hospitalized by Dr. Crews for testing and treatment, and thereafter a diagnosis of diabetes was rendered. Shortly before discharge from the hospital, Dr. Crews treated Mrs. Brown with a drug known as Dymelor, described as an oral hypoglycemic designed to reduce the amount of sugar in the blood. Upon discharge on March 20, 1973, she was given a prescription for Dymelor and instructed to see Dr. Crews in his office in two or three weeks.

On April 9 Mrs. Brown saw Dr. Crews at his office and related that she was not feeling well. He recommended she go back into the hospital but she refused. Immediately upon exiting the doctor’s office, she discussed with her sister-in-law, who had accompanied her, the fact that she had been taking the wrong medication. In fact, by the druggist’s error, she had been given Diamox, a diuretic, instead of Dymelor, when she had her prescription filled. This mistake was discovered on April 9, the day she went to see Dr. Crews, although he subsequently denied knowledge of the mistake. On the same day she secured the correct medication and took it until April 11,1973, when she lapsed into a coma. She was hospitalized on that date in a markedly dehydrated condition with a profoundly low blood sugar level. She died on May 23, 1973, without ever awakening from the coma. Dr. Crews testified that her death was secondary to profound hypoglycemia, a condition involving a marked decrease in her blood sugar level.

As to the April 9 visit, Dr. Crews testified that he would not have allowed Mrs. Brown to resume taking Dymelor without strict hospital supervision if he had known she had been taking the wrong medication previously. Another physician testified about the use of Dymelor as follows:

The fact that the mistake was discovered and she began taking Dymelor and then is admitted to a hospital with a blood sugar of 29 percent definitely shows she reacted adversely to the Dymelor.
But I would have to conclude from what you have told me, if it is the truth, that the Dymelor that she took the last two days was far more contributory to her death than the Diamox she took for the three weeks prior to that.

Considering the testimony of Dr. Crews together with the testimony of the other physician quoted above, it could be concluded that Mrs. Brown’s hypoglycemic condition was at least partially attributable to her adverse reaction to the Dymelor which she resumed taking on April 9.

The question is whether these circumstances create a sufficient issue of fact to prevent a directed verdict from being entered on the issue of negligence as to Dr. Crews. We believe they do. According to his own testimony, Dr. Crews would not have allowed Mrs. Brown to resume the use of Dymelor without hospital supervision. There is evidence that the resumption of the Dymelor did have an adverse effect on Mrs. Brown. The only question remaining is whether there is any evidence that Dr. Crews learned of the error in filling the prescription on April 9. He denies it. However, the mistake was not discovered until Mrs. Brown went into his office on the 9th. Immediately upon exiting his office she disclosed the mistake to her sister-in-law, and the prescription was corrected later on the same day. On the motion for directed verdict the appellant was entitled to have not only the evidence, but also all proper inferences therefrom, construed in his favor. One of those inferences was that Mrs. Brown learned of the mistaken prescription from Dr. Crews on the April 9th office visit. That being so, we believe it was error for a directed verdict to be granted.

Accordingly, this cause is hereby reversed and remanded for a new trial in accordance with this opinion.

DOWNEY, C. J., and LETTS, J., concur.


author: RYDER, Judge.

text:
    Wiley JONES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-1770.
    District Court of Appeal of Florida, Second District.
    Oct. 11, 1978.
    Rehearing Denied Nov. 2, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant was charged, tried and convicted of first degree murder. He was sentenced to life imprisonment. He now appeals alleging, inter alia, that the trial judge erred in failing to instruct the jury as to the essential elements of the crime of robbery during an instruction on homicide committed during the perpetration of a felony. The offense allegedly occurred on November 13, 1974.

In Florida under Section 782.04, Florida Statutes (1973), the unlawful killing of a human being shall be murder in the first degree and punishable by death in either of two circumstances: (1) “When perpetrated from a premeditated design to effect the death of the person killed or any human being . . .,” or (2) “When committed in the perpetration of, or in the attempt to perpetrate, any . . . robbery, . . .” The latter circumstance is commonly referred to as the felony-murder rule.

Section 813.011, Florida Statutes (1973), the statute then in force, defines robbery when one, by force, violence, or assault, or putting in fear feloniously robs, steals and takes away from the person or custody of another, money or other property which may be the subject of larceny.

Upon review of the record in this case, the facts and evidence developed during the trial make the application of the felony-murder rule most appropriate, and there is ample evidence from which it could be found by a jury that appellant committed a homicide in the perpetration of the felony of robbery.

The trial court gave the jury an instruction on the felony-murder rule and named the felony of robbery, but did not define robbery. At the conclusion of instructions to the jury by the trial court, the state attorney and the defense attorney approached the bench at the request of the trial judge who asked the state attorney and defense attorney whether or not any further instructions should be given to the jury. Out of the hearing of the jury, the prosecuting attorney indicated to the court that although it had instructed on the felony-murder rule, it had omitted defining the essential elements of the felony. He requested that the trial court thereafter define robbery to the jury. The defense attorney was silent in this respect and merely expressed concern in another area. The trial court declined to define robbery, indicating that any further instructions might confuse the jury.

Thereafter, the jury was instructed to deliberate and later returned a verdict of guilty as charged. This timely appeal followed.

The attorney general argues that, inasmuch as the defense attorney did not request this instruction, no error occurred. Appellant responds that such an instruction is so basic that a request need not be made and points to the well-reasoned Supreme Court opinion of Robles v. State, 188 So.2d 789 (Fla.1966).

Seldom has this court come upon two cases as similar as the Robles case and the one sub judice. As did the Robles court, so does this court hold that proof of the elements of the underlying felony would be necessary in order to convict one under the felony-murder rule and thus the trial court was obliged to instruct the jury concerning them whether or not requested to do so. See Robles v. State, supra, and cases cited therein.

In view of our decision, it is unnecessary to discuss appellant’s second point on appeal.

For the reasons above expressed, the judgment and sentence are REVERSED and the cause is REMANDED for a new trial.

GRIMES, C. J., and HOBSON, J., concur.


text:
    COMMERCIAL UNION INSURANCE COMPANY and Otis Elevator Company, Appellants, v. BAYFRONT MEDICAL CENTER, Appellee.
    No. 78-2.
    District Court of Appeal of Florida, Second District.
    Oct. 11, 1978.
    Rehearing Denied Nov. 27, 1978.

      William D. Slicker of Lyle, Skipper, Wood & Anderson, St. Petersburg, for appellants.
    Stephen C. Chumbris of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Petersburg, for appellee.
   RYDER, Judge.

Appellants/third party plaintiffs Commercial Union Insurance Company and Otis Elevator Company appeal the entry of final summary judgment against them and in favor of appellee/third party defendant Bayfront Medical Center on the third party complaint for indemnity and contribution. We affirm in part and reverse in part.

We affirm the summary judgment for appellee/third party defendant on Count II which sought contribution pursuant to Section 768.31, Florida Statutes (1975). See Seaboard Coast Line Railroad Company v. Smith, 359 So.2d 427 (Fla.1978); Armor Elevator Company, Inc. v. Elevator Sales & Service, Inc., 360 So.2d 1129 (Fla. 3d DCA 1978).

We reverse the summary judgment for appellee/third party defendant on Count I which sought indemnity on the theory that appellee Bayfront was an active tort feasor, whereas appellant Otis’ negligence, if any, was passive. It is axiomatic that on motion for summary judgment, the burden of proof is on the moving party to show the absence of any genuine issue of material fact, and all doubts and inferences must be resolved against the movant. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Booth v. Mary Carter Paint Company, 182 So.2d 292 (Fla. 2d DCA 1966). In third party suits for indemnity, summary judgments should not be granted for the third party defendant unless no version of the facts could support the indemnity claimed. Home Indemnity Company v. Edwards, 360 So.2d 1112 (Fla. 1st DCA 1978).

The record herein clearly reveals the existence of issues of material fact regarding the active or passive nature of the negligence of the parties, and the trial court thus erred in its entry of summary judgment on the indemnity count. These questions of fact should be resolved by the jury as trier of fact and not by the court on summary judgment. Home Indemnity Company v. Edwards, supra; Florida Power Corporation v. Taylor, 332 So.2d 687 (Fla. 2d DCA 1976).

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND this cause for further proceedings consistent herewith.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.


author: SMITH, Acting Chief Judge.

text:
    CORRY CONSTRUCTION CO., INC., Appellant, v. HECTOR CONSTRUCTION COMPANIES, INC., Will-O-Wick, Inc., and Royal Indemnity Co. of New York, Appellee.
    No. II-45.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1978.

      Charles L. Cetti of Cetti & McGraw, Pensacola, for appellant.
    Robert P. Gaines of Beggs & Lane, Pensacola, for appellee.
   SMITH, Acting Chief Judge.

Corry, a mechanic’s lien claimant under Chapter 713, Florida Statutes (1977), appeals from a circuit court judgment dismissing Corry’s claim against Royal Indemnity Co. on a transfer bond provided under Chapter 713.24. Corry previously was awarded a final judgment against Will-O-Wick, Inc., the apparent owner of the project to which Corry furnished labor and materials, establishing a Chapter 713 lien in the amount of $19,768.34, including costs and attorney’s fees assessed under Section 713.29. The October 1974 judgment against Will-O-Wick, Inc. became final, as Will-O-Wick, Inc. did not appeal; and Corry was granted leave to file a further complaint in the same action against Royal Indemnity Co., on account of its transfer bond.

In answer to Corry’s amended complaint, Royal Indemnity Co. urged that Corry had no claim against the transfer bond because the present record title holder of the improved real property, Will-O-Wick Apartments, an Illinois limited partnership, had not been a party to the earlier suit and was not bound by the judgment. Evidence at the subsequent trial before the court demonstrated that Will-O-Wick, Inc., the original owner to whom Corry provided a notice of intent to claim a lien in December 1972, deeded the subject property to Will-O-Wick Apartments in April 1973. Corry’s claim of lien filed in May 1973 erroneously claimed Will-O-Wick, Inc. as owner. Notwithstanding the transfer of title, the partnership Will-O-Wick, joined by appellee Royal Indemnity Co. as surety, executed a transfer bond in favor of Corry in August 1973, reciting Corry’s filing of a claim of lien in May 1973, “against certain real property owned by WILL-O-WICK APARTMENTS, an Illinois Limited Partnership,” and reciting the partnership’s desire to discharge the claim of lien by giving a bond pursuant to Section 713.24.

The judgment exonerating Royal Indemnity Co. recited that there was insufficient evidence showing “the necessary privity to hold Will-O-Wick Apartments, a limited partnership, responsible for the judgment entered against Will-O-Wiek, Inc. . . .” Apparently the trial court was of the view that Royal Indemnity Co.’s liability depended on a showing that Corry’s claim of lien was directly enforceable against the partnership Will-O-Wick, or that the insularity of the corporate Will-O-Wick should be penetrated and its liability attached to the partnership.

On appeal, Corry first urges that its claim of lien need not be directly enforceable against the limited partnership for Corry to recover against Royal. Corry notes that the lien transfer bond was conditioned solely upon Corry obtaining a judgment in satisfaction of its claim of lien, not a judgment against the owner of the property. In the alternative, Corry urges that the limited partnership should be bound by the judgment against Will-O-Wick, Inc. Corry argues that the notice of intent to claim a lien, filed in December 1972, effectively commenced the proceeding to foreclose Cor-ry’s lien before the conveyance to the limited partnership, and that the partnership had actual knowledge of the claim of lien at the time of the conveyance. In opposition, Royal does not defend the court’s finding of no privity. Royal urges that Corry, having given no notice to the limited partnership of its intention to claim a lien, having failed to claim a lien as against the limited partnership, and having failed to obtain a judgment enforcing its lien against the limited partnership, has no claim under the Royal Indemnity Co. bond.

We consider that the judgment below must be affirmed for two reasons. First, Corry’s lien did not attach to the improved real property before Will-O-Wick, Inc. conveyed that property to the limited partnership, Will-O-Wick Apartments. Thus the partnership’s interest has priority over the lien. Section 713.07(3) provides that a mechanic’s lien “shall have priority over any conveyance, encumbrance or demand not recorded against the real property prior to the time such lien attached as provided herein, but any conveyance . recorded prior to the time such lien attaches shall have priority over such liens.” As a subcontractor, Corry’s lien’s priority is governed by Section 713.07(2) which provides that a lien shall attach and take priority at the time the owner files a notice of commencement, or, absent such a filing, at the time the claim of lien is recorded. Corry does not contend that Will-O-Wick, Inc. filed a notice of commencement. The record on appeal shows only that Corry filed a claim of lien on May 21, 1973. The record also contains copies of the warranty deed conveying the property in question from the corporate Will-O-Wick to the limited partnership. That deed bears a notation that it was filed and recorded in Escambia County on April 16, 1973, more than a month before Corry’s claim of lien was filed. As a result, the limited partnership's interest is not subject to sale to satisfy Corry’s claim. See Page Heating & Cooling, Inc. v. Goldmar Homes, Inc., 338 So.2d 265 (Fla. 1st DCA 1977).

Corry urges that the limited partnership is bound by the judgment against Will-O-Wick, Inc. because the partnership had actual knowledge of a lien on the property when the deed was executed. But under the statute a grantee's knowledge, actual or constructive, is irrelevant. A lien has priority if it attaches to the real property, as provided in the statute, before a conveyance is recorded. In this case, the conveyance preceded the attachment.

Second, even if Corry had filed its claim of lien before the conveyance, Corry could not foreclose the limited partnership’s interests in the improved real property because Corry commenced the foreclosure action after the conveyance, and the limited partnership was not made a party. It is fundamental that a grantee is not bound by a judgment against the grantor in a suit commenced after the conveyance when the grantee was not joined as a party. Stokely v. Conner, 80 Fla. 89, 85 So. 678 (1920). A suit to foreclose a mechanic’s lien commences, as with any other suit, “when the complaint or petition is filed” in court, Fla.R. Civ.P. 1.050; not, as Corry urges, when a subcontractor files a notice of intent to claim a lien with the owner.

Since more than one year has elapsed since Corry filed its claim of lien, Corry cannot now begin an action against the limited partnership. Section 713.22(1) requires that actions to enforce a claim of lien commence within one year after the claim of lien is recorded. At the end of the statutory one year period, the right of action is extinguished. Regal Wood Products, Inc. v. First Wisconsin Nat. Bank of Milwaukee, 347 So.2d 643 (Fla. 4th DCA 1977); Harris Paint Co. v. Multicon Properties, Inc., 326 So.2d 43 (Fla. 1st DCA 1976).

Corry urges that the existence of the lien transfer bond relieves Corry of any requirement to establish a valid claim of lien against the record title holder. We do not agree. It is true that Royal’s bond explicitly expressed its obligation to “pay any judgment or decree to the satisfaction of the lien for which said Claim of Lien was recorded,” referring to Corry’s May 21, 1973, claim of lien which was enforced by the final judgment entered October 4, 1974 against Will-O-Wick, Inc. The transfer bond filed by the limited partnership and Royal had the effect prescribed for such a bond by Section 713.24, releasing the property of any lien resulting from Corry’s furnishing of labor and materials and its filing of appropriate notices and claims. But the statute does not release the lien claimant from the requirement to prove all the conditions precedent to the perfection and enforcement of his lien against the improved real property. Resnick Developers South, Inc. v. Clerici, Inc., 340 So.2d 1194 (Fla. 4th DCA 1977); McGuire v. Consolidated Electrical Supply, Inc., 329 So.2d 411 (Fla. 4th DCA 1976).

The judgment is AFFIRMED. Corry’s motion for fees on account of appellate legal services is DENIED.

MELVIN and BOOTH, JJ., concur.


author: KEHOE, Judge.

text:
    Malcolm ROBBINS, Appellant, v. Joaquin F. BLAYA, Appellee.
    No. 77-2136.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Rehearing Denied Dec. 1, 1978.
    Reid & Heeke, Palm Beach, for appellant.
    Miller & Russell and Edgar Miller, Miami, for appellee.
    Before PEARSON, HENDRY  and KE-HOE, JJ.

       Judge Hendry participated in the decision in this case but did not hear oral argument.

   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from a final summary judgment dated September 23, 1977, in favor of appellee. We must reverse because there were justiciable issues of fact which existed that could not be properly resolved by reference to a separate divorce action. Fla.R.Civ.P. 1.510. Accordingly, the final summary judgment appealed is reversed and the cause is remanded for further proceedings in the trial court.

Reversed and remanded.


text:
    MOUNT SINAI HOSPITAL OF GREATER MIAMI, INC., Appellant, v. Elizabeth TURNER and William Turner, her husband, Appellees.
    No. 77-2184.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Rehearing Denied Dec. 1, 1978.
    Adams & Ward and Amy Shield Levine, Miami, for appellant.
    Sams, Anderson, Gerstein & Ward; Greene & Cooper, Miami, for appellees.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The order granting a new trial, from which this appeal was filed by the defendant, Mount Sinai Hospital of Greater Miami, Inc., is affirmed on the authority of Saborit v. Deliford, 312 So.2d 795 (Fla.3d DCA 1975); Brown v. McArthur Dairies, Inc., 280 So.2d 520 (Fla.3d DCA 1973); Cuervo v. Garcia, 246 So.2d 579 (Fla.3d DCA 1971); Barker v. Randolph, 239 So.2d 110 (Fla.1st DCA 1970); Grabow v. Lehrer, 224 So.2d 767 (Fla.3d DCA 1969). The cross assignments of error filed by appellees are held to be without merit.

Affirmed.


text:
    Robert L. BLUM, etc., et al., Appellants, v. KOHLMEYER & COMPANY, etc., et al., Appellees.
    No. 77-2244.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Rehearing Denied Dec. 1, 1978.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellants.
    Jepeway, August, Gassen & Pohlig and Richard C. Milstein, Miami, for appellees.
    Before PEARSON, HENDRY and HUB-BART , JJ.

         Judge Hubbart participated in the decision in this case but did not hear oral argument.

   PER CURIAM.

Appellants/defendants/lessors appeal from a final judgment rendered in favor of appellee/plaintiff/lessee in an action grounded upon constructive eviction and breach of the implied covenant of quiet enjoyment. The action, itself, was occasioned by appellee and its sub-lessee, both brokerage firms, having to vacate the leasehold located in appellants’ luxury apartment-hotel complex on Miami Beach, because of a zoning violation. After a non-jury hearing, the trial judge entered a money judgment in favor of appellee/lessee consisting of (1) an amount representing a security deposit which appellants/lessors failed to return to appellee plus interest thereon, and (2) an amount covering the loss sustained by appellee because of certain improvements made to the leasehold by both appellee and its sub-lessee.

While appellants have raised certain points on appeal, including the contention that the trial judge erred in failing to require appellee to join the sub-lessee as an indispensible party plaintiff to the suit, after a careful review of the record in light of the controlling principles of law, it is our opinion that the final judgment should be affirmed.

Affirmed.

      . See City of Miami Beach v. Arthree, Inc., 269 So.2d 699 (Fla. 3d DCA 1972); cert. den. 276 So.2d 166 (Fla.1973); 300 So.2d 65 (Fla. 3d DCA 1973); cert. den. 414 U.S. 859, 94 S.Ct. 70, 38 L.Ed.2d 109 (1974), where the City of Miami Beach zoning ordinance prohibiting service stores, etc., in apartment houses was declared not to be unreasonable and unconstitutional.


author: HENDRY, Judge.

text:
    Bernard ZIMMERMAN, Joseph S. Wohl, Abraham Morgenstern, Harry Toffel and Murray Bellow, Appellants, v. Jo Nell NILSSON, Dr. Mortimer Schaffer and Albert H. Sherman and Nathan Newman, Trustee, Appellees.
    No. 77-2338.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Rehearing Denied Dec. 1, 1978.
    Pallot, Stern, Proby & Adkins and Adolfo Podrecca, Miami, for appellants.
    Schoninger & Siegfried and Steven M. Siegfried, Miami, for appellees.
    Before HAYERFIELD, C. J., and PEARSON and HENDRY, JJ.

       Chief Judge Haverfield participated in the decision in this case but did not hear oral argument.

   HENDRY, Judge.

Appellants/defendants appeal from an amended final judgment rendered in favor of appellees/plaintiffs in an action for payment of a real estate brokerage commission.

In 1973, appellants, the owners of approximately five hundred acres of unimproved land located in Broward County, Florida, entered into a brokerage agreement with appellees. In pertinent part, the agreement provided that:

“To induce you (appellants) to proceed with negotiations for the sale of the above property to Samuel J. Fountas and to enter into a contract of sale, the undersigned confirms that we (appellees) have been acting as real estate brokers in connection with such transaction and that our understanding with respect to compensation that may be payable to us in connection with such sale is and shall be as follows:
“We agree that no brokerage commission or compensation of any nature shall be payable to us unless and until a deed has been executed and delivered and the full purchase price received and all other terms of said agreement of sale have been complied with; at which time we agree to accept in payment of all brokerage commissions and compensations due us the sum of $350,000 payable as follows: one-third on closing, one-third on the first anniversary of the closing and the balance on the second anniversary of the closing.
“If for any reason whatsoever, whether due to the default of the Owner or the default of the Purchaser, willful or otherwise, the deed is not delivered and the full purchase price is not paid and/or the conditions of the contract of sale have not been completely fulfilled, then in such event no brokerage commission or compensation shall be payable . . . ”

Subsequently, a contract of sale of the property was executed by appellants and the purchaser. The contract of sale provided for a purchase price of $2,000,000.00 in cash at the closing and the balance in the form of a purchase money note secured by a purchase money mortgage. The note was in the amount of $5,000,000.00 payable in five equal annual installments, commencing one year after the date of closing.

Title closed on the property on January 25, 1974, and the first installment of the brokerage commission was paid at that time, pursuant to the above agreement. When the first payment under the note and mortgage became due in January, 1975, the purchaser could not make the $1,000,000.00 payment. As a consequence of the purchaser’s failure to make payment, appellants did not tender the second installment of the brokerage commission. Appellees thereupon initiated an action in the trial court for the remaining portion of their commission. Subsequent to a non-jury trial, judgment was entered in favor of appellees for the balance of the commission and appellants have appealed from that judgment.

Appellants’ primary point on appeal centers around an interpretation of the above brokerage agreement. Appellants argue that appellees are not entitled to receive the balance of the brokerage commission because the full purchase price of the property had not been paid. Appellants argue that because the purchaser of the property defaulted on the note and mortgage obligation, the full purchase price was never received by appellants and a condition precedent to the payment of the commission never fulfilled.

Appellees, on the other hand, argue that the full purchase price of the property was, in fact, paid to appellants. Appellees contend that, along with the initial downpayment of $2,000,000.00, the purchase money note and mortgage executed by appellants and the purchasers constituted payment of the full purchase price. In support of their contention, appellees point to the fact that had the full purchase price of the property not been paid to appellants, then appellants would not have paid appellees part of the latters’ commission, pursuant to the schedule contained in the agreement.

The trial judge agreed with appellees’ position and entered judgment which included lengthy findings of fact and conclusions of law. In part, those findings are set forth below:

“The broker’s contract (Plaintiff’s exhibit # 1) states that the commission becomes payable when a deed is executed and delivered and the full purchase price received and all other terms of the sale agreement complied with. The Defendants contend that the deed was executed and delivered, and the mortgage documents were duly signed and recorded, the cash at closing was paid, but the default in the mortgage subsequent to the closing violates the terms of the contract of sale and the purchase price is therefore not paid and the Plaintiffs are not entitled to the balance of their commission.
“The contract of sale (Plaintiff’s exhibit # 2 in evidence) referred to in the broker’s agreement provided for the conveyance of title and method of payment. The seller was to execute a mortgage. A mortgage is a security instrument given for the purpose of securing a debt or the performance of a duty. The mortgage is merely incidental to the obligation that it secures. Johns v. Gilliam, [134 Fla. 575] 184 So.[2d] 140 (1938).
“A purchase money mortgage is a mortgage given by the purchaser of real estate to the vendor to secure the payment of its purchase price. The vendor takes the promissory note and purchase price, in whole or part. Thus, the conditions of the broker’s agreement (exhibit # 1) and the contract for sale (exhibit # 2) have been fully met. The property was sold by deed and the purchase price paid (part in cash and part by a purchase money mortgage).”

The trial judge also found that certain correspondence between appellants and some of appellees, subsequent to the purchaser’s default, concerning a deferment of the commission did not constitute a novation and/or a modification of the brokerage agreement.

After a careful review of the record, we conclude that the trial judge’s findings were based upon substantial, competent evidence and, as such, the judgment of the trial court is hereby affirmed. DeLalio v. Food Palace, Inc., 330 So.2d 835 (Fla. 3d DCA 1976).

Affirmed.

      . The trial judge did not so find, but we nevertheless note, that this attempted deferment of the commission lends additional support to the contention of appellees that all conditions precedent to the payment of the commission had been met and after the closing, the monies were then due and owing according to the schedule contained in the brokerage agreement.


text:
    Ramon Rafael MACHADO and Adelaida Garcia Machado, Appellants, v. The STATE of Florida, Appellee.
    Nos. 77-2498, 77-2499.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Rehearing Denied Dec. 1, 1978.

      Kogen & Kogan and Geoffrey C. Fleck, Miami, for appellants.
    Robert L. Shevin, Atty. Gen. and Steven L. Bolotin and Joel D. Rosenblatt, Asst. Attys. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   HENDRY, Judge.

Appellants, defendants in the trial court, were both charged by information with aiding or assisting in conducting a lottery, possession of lottery paraphernalia, and possession of Tottery tickets. In addition, appellant Ramon Machado was charged with carrying a concealed firearm and the unlawful possession of a firearm during the commission of a felony. Subsequent to a non-jury trial, appellant Ramon Machado was adjudicated guilty and sentenced on counts one, two, and three of the information to five years probation with a condition of six months incarceration. A Two Thousand ($2,000.00) Dollar fine was imposed as well. On count four, he was sentenced to a consecutive six month prison term and on count five, to a concurrent two years probation conditioned upon a concurrent six month period of incarceration. Adelaida Machado was sentenced on counts one, two, and three, to five years probation conditioned upon serving a jail sentence of sixty days, and ordered to pay a fine of Two Thousand ($2,000.00) Dollars.

Appellants challenge their convictions on several grounds: firstly, appellants contend that the trial court erred in failing to grant their motion to suppress evidence seized from appellants’ residence pursuant to an allegedly insufficient search warrant in violation of the fourth and fourteenth amendments to the United States Constitution and section twenty-two of the Declaration of Rights of the Florida Constitution; secondly, appellants argue that a motion to suppress evidence seized from their persons pursuant to their warrantless arrests following a stop of their vehicle was erroneously denied; thirdly, that the trial court erred in failing to grant Ramon Machado’s motions for judgment of acquittal at the close of the state’s case and after all the evidence, in that the state failed to prove appellant’s possession of any lottery tickets or paraphernalia or that he aided or assisted in conducting a lottery; and finally, that the court erred in failing to grant Ramon Machado’s motion for judgment of acquittal in that the state failed to prove that appellant carried a concealed firearm or carried a firearm during the commission of a felony. We shall address ourselves to each of the above contentions.

POINT I

Appellant’s basic contention is that the search warrant was issued upon an insufficient affidavit. The affidavit, however, was executed by three detectives, all of whom possessed extensive experience over a period of many years in the investigation of illegal lotteries and had developed an expertise on the subject. The affidavit contained a detailed description of how a lottery organization operates.

Based on their knowledge of these lottery procedures, and on their combined experience as investigators in this case, the detectives stated that it was their belief that the facts revealed by their investigation showed a pattern of activity common to the operation of an illegal lottery, “with the transfer of Tottery tickets’ from the lower level to the higher level of the organization and ultimately to the central collection point where the lottery operation is conducted” i. e., appellants’ residence. The affidavit then recited in detail, the observation made by the officers during the investigation which consisted, in part, of surveillance of various activities, including activities of appellants, conducted on numerous occasions from April 19, 1977 to May 25, 1977.

On six different occasions during the investigatory period, the detectives observed transactions which appeared, in the light of their experience, to be lottery “pick-ups.” On four of these occasions, the individuals involved in the actual transaction were either followed to appellants’ residence after the transactions, or observed leaving the residence and directly proceeding to the site of the “pick-ups.” On one of the two remaining occasions, appellant Ramon Macha-do was actually seen meeting with the individuals involved in the “pick-up” in an apartment previously rented by appellants. On the final occasion, the individuals were seen entering the apartment and appellants’ automobile was observed parked nearby.

Based upon this detailed affidavit, a search warrant was issued for lottery tickets, pads, paraphernalia, and currency used in conjunction therewith. The warrant was subsequently carried out, resulting in the seizure of numerous items of the above from appellants’ residence.

We believe that the affidavit, viewed by one familiar with the procedures of a lottery operation, contained sufficient facts to establish probable cause. Accordingly, the trial court correctly denied appellants’ motion to suppress the items seized from the residence.

It is well settled that a trial court’s ruling on a motion to suppress comes to an appellate court clothed with a presumption of correctness and it is incumbent upon this court to interpret the evidence and all reasonable inferences capable of being drawn therefrom in a light most favorable to sustain the trial court’s conclusion. McNamara v. State, 357 So.2d 410 (Fla. 1978). It is the probability of criminal activity, and not a prima facie showing of such activity, which is the standard of probable cause. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Smith, 233 So.2d 396 (Fla. 1970). The probability of criminal activity must be viewed in light of the factual and practical considerations of everyday life upon which reasonable and prudent men act. Paula v. State, 188 So.2d 388 (Fla.2d DCA 1966). Where, as here, the issuance of a search warrant was based upon an affidavit which contained personal observations of experienced law enforcement officers of activities, generally known to the officers as activities followed by those engaged in lottery operations, the probability of criminal activity was present. Probable cause of criminal activity having been demonstrated, the validity of the search warrant is upheld. See State v. Smith, supra; and Whisnant v. State, 303 So.2d 397 (Fla.3d DCA 1974).

POINT II

Appellants’ second point challenges the correctness of the trial judge’s denial of appellants’ motion to suppress evidence seized pursuant to an arrest of appellants in their vehicle. We find that the arrest of appellants and subsequent search incident to that arrest was justified under the circumstances.

Appellants’ car was stopped by police officers and appellants were placed under arrest for aiding and assisting in the conducting of a lottery. Incident to the arrest, appellant Adelaida Machado’s purse was searched revealing various items of lottery paraphernalia, including a “summary sheet.”

The law is clear that a warrantless search incident to an arrest is lawful, if probable cause exists for the arrest; and any evidence obtained therefrom is admissible in a court of law. Dixon v. State, 343 So.2d 1345 (Fla.2d DCA 1977); see also Section 901.15, Florida Statutes (1977). The record clearly reveals that the arresting officers had probable cause to believe that appellant Ramon Machado was the “lead man” or “banker” of a lottery organization and that Adelaida Machado assisted Ramon in the operation. This belief, as mentioned under POINT I, was based on observations made by the officers during surveillance and their familiarity with the patterns of illegal lottery operations. Additionally, one of the arresting officers was aware of Ramon Machado’s past involvement in lottery operations, a relevant factor in determining probable cause. State v. Blanco, 339 So.2d 1137 (Fla.2d DCA 1976).

It is appellants’ argument that the arresting officers had ample time to secure a warrant for appellants’ arrests, nevertheless, an otherwise proper arrest without a warrant is not invalidated by the fact that there may have been sufficient time to have obtained a warrant. State v. Perez, 277 So.2d 778 (Fla.1973); State v. Rameriz, 284 So.2d 241 (Fla.4th DCA 1973).

Accordingly, appellants’ arrest being predicated upon probable cause, the search incident thereto, which revealed lottery paraphernalia introduced into evidence at appellants’ trial, was legal and the motion to suppress the evidence was properly denied.

POINT III

Appellants contend that the trial court erroneously denied Ramon Machado’s motions for judgment of acquittal on the charges of aiding or assisting in conducting a lottery, possession of lottery paraphernalia, and possession of lottery tickets. His basic contention is that, notwithstanding the fact that numerous lottery items were found at his residence, there was no proof that he had knowledge, dominion, or control of the contraband.

When a defendant moves for a judgment of acquittal, all facts in evidence adduced and every conclusion drawn therefrom favorable to the State is admitted. Garmise v. State, 311 So.2d 747 (Fla.3d DCA 1975). A motion for judgment of acquittal should not be granted unless it is apparent that no legally sufficient evidence has been submitted upon which the trier of fact could reach a finding of guilt. Gar-mise v. State, supra.

Sub judice, the contraband was found on premises which were in joint possession of appellants. In such a situation, proof must be established that appellant Ramon Machado knew of the contraband’s presence and maintained control over it. This proof may consist either of evidence establishing actual knowledge by appellant, or evidence of incriminating circumstances from which the trier of fact might lawfully infer knowledge. Davis v. State, 350 So.2d 834 (Fla.2d DCA 1977); Frank v. State, 199 So.2d 117 (Fla.1st DCA 1967).

The record reveals that the items, clearly identifiable as lottery paraphernalia, were found in many accessible locations in appellants’ residence. These items were recovered from the master bedroom, the master bedroom closet, a triple dresser in the master bedroom, a kitchen closet, and a kitchen drawer. When the location of the contraband in the home is viewed in conjunction with appellant’s involvement with the lottery operation, as discussed under POINT I, the circumstances were such as to raise the inference that Ramon Machado had knowledge of the presence of the lottery tickets and paraphernalia. See Lattimore v. State, 214 So.2d 771 (Fla.3d DCA 1968).

POINT IV

Appellants’ final point claims error on the part of the trial judge in denying appellant Ramon Machado’s motion for judgment of acquittal on the charges of carrying a concealed firearm, and the unlawful possession of a firearm during the commission of a felony. Appellants argue that the state failed to prove the offenses because it did not prove that the pistol introduced into evidence as that taken from appellant Ramon Machado at the time of his arrest in the automobile was actually a “firearm” as defined by Section 790.001(6), Florida Statutes (1977).

Apparently, it is appellants’ contention that the state must prove that a firearm is operable before it can be defined as such. Yet, Section 790.001(6) defines firearm as:

“. . . any weapon (including a starter gun) which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun . . . ”

Clearly, operability is not a determinative factor in defining a firearm. Additionally, the two arresting officers described the weapon at trial as a “9 mm automatic pistol, loaded,” and a pistol is a firearm. Rogers v. State, 336 So.2d 1233 (Fla.4th DCA 1976); Davis v. State, 215 So.2d 626 (Fla.3d DCA 1968). Further, the weapon was introduced into evidence and the trial judge, as trier of fact, had ample opportunity to inspect the gun and make a determination as to whether Section 790.001(6) was applicable. The trial judge impliedly ruled that the pistol was in fact a “firearm” and, in so doing, correctly denied appellant’s motions for judgment of acquittal.

We have reviewed all points raised by appellants in their briefs, in light of the controlling principles of law, and have concluded that no error has been shown. Accordingly, appellants’ convictions and sentences are hereby affirmed.

Affirmed.


text:
    Thomas Keller WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 78-365.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Rehearing Denied Dec. 1, 1978.
    Angelo A. Ali and Mark R. Baer, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   PER CURIAM.

Affirmed. Walden v. State, 310 So.2d 426 (Fla.3d DCA 1975); Roberts v. State, 250 So.2d 918 (Fla.2d DCA 1971); Fast v. State, 221 So.2d 203 (Fla.3d DCA 1969).


text:
    Thomas WILSON, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 78-1841.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Thomas Wilson, Jr., in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


text:
    Donald J. SMITH, Appellant, v. Jerry R. HUSSEY and Walter R. Talley, Appellee.
    No. 78-62.
    District Court of Appeal of Florida, Second District.
    Nov. 1, 1978.
    John W. Hamilton of Ware & Hamilton, St. Petersburg, for appellant.
    Robert C. Miller, Bradenton, for appellee Hussey.
    Donald V. Bulleit and James C. Hadaway of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Petersburg, for appellee Talley.
   PER CURIAM.

This is an appeal from entry of a summary judgment in favor of appellee/defendant Hussey, an attorney charged with malpractice in the representation of his former client, appellant/plaintiff Smith. Hussey pled the statute of limitations as an affirmative defense. In his motion for summary judgment Hussey alleged that Smith’s complaint had not been filed within the applicable statute-of-limitations period. The trial court granted Hussey a summary judgment on this basis, specifically finding that Smith became aware of Hussey’s alleged negligence on September 22, 1972, and that the two-year limitation period of § 95.11(4)(a), Fla.Stat. (1975) barred his suit filed on September 14, 1976. We reverse.

In Smith’s affidavit in opposition to the motion for summary judgment he stated that he became aware on September 22, 1972, that his property rights were in jeopardy because of Hussey’s alleged negligence. However, Hussey continued to represent his former client and, according to Smith’s affidavit, continued to assure him that the matter would be satisfactorily resolved. Accordingly, there was a factual question as to when Smith knew or should have known that Hussey’s handling of the case constituted malpractice, and thus there was a factual issue as to when the statute of limitations commenced running. As a result, the trial court should not have determined the matter on summary judgment, but rather, should have left the question to the trier of fact. Edwards v. Ford, 279 So.2d 851 (Fla.1973); Pinkerton v. West, 353 So.2d 102 (Fla. 4th DCA 1977); Schetter v. Jordan, 294 So.2d 130 (Fla. 4th DCA 1974).

In view of what we have said, we remand this case for further proceedings.

HOBSON, Acting C. J., and SCHEB and OTT, JJ., concur.