author: McNULTY, Chief Judge.

text:
    William Clinton CHANDLER, Appellant, v. Dorothy Ricketts CHANDLER, Appellee.
    No. 75-1300.
    District Court of Appeal of Florida, Second District.
    April 2, 1976.
    Rehearings Denied May 7, 1976.

      George W. Phillips, Tampa, for appellant.
    C. Eugene Jones of Ginsburg, Ross, Dent & Byrd, P.A., Sarasota, for appellee.
   McNULTY, Chief Judge.

This action for change of custody was filed and tried in Dade City, Pasco County, wherein a judgment of dissolution of the marriage between the parties hereto was entered several years previously. Counsel for the appellee ex-wife was a Sarasota attorney who, at the conclusion of the child custody proceeding (which ended in favor of the ex-wife), was awarded a $3,000 fee. The ex-husband appeals that award. We reverse.

The foregoing award was improper for two reasons. First, it is patent that the fee was based on the ex-wife’s attorney’s own commendably candid computation of thirty hours of time and labor spent, sixteen of which were for travelling from Sarasota to Dade City. Now, there is no real dispute but that the other fourteen hours were reasonably necessary in defense of the original custody award; so we are faced with the question of whether travel time is properly included in an award of attorneys’ fees. We think not. We are aware of no authority for including it and, indeed, Canon 2 of the Code of Professional Responsibility indicates to the contrary when, among other factors properly to be considered in determining a reasonable fee, it cites the fee “customarily charged in the locality for similar legal services.” In the absence of a showing that there is no local legal expertise on the issues involved in the matter (obviously not the case here), this factor should not, as it was here, be overlooked. ■ Certainly a reasonable fee for local counsel would not contemplate the inclusion of travel time as compensable time. It would be incongruous, to say the least, if in the ordinary case nonlocal counsel should fare better insofar as his fees may be assessed against the other party.

On the latter point, we emphasize that we do not hold that a party may not employ any counsel, from any place, he chooses so long as that counsel qualifies to practice law in this state. Nor do we limit in any way the fee arrangement between them. We do circumscribe, however, the portion thereof assessable against his adversary.

The second infirmity in the fee awarded in the instant case is that it was based on the deposition of a Sarasota attorney, who was deposed in Sarasota and who based his opinion on the reasonableness of a fee payable to the ex-wife’s attorney on the standards, amenities and practices in Sarasota County. It need not be mentioned here, we suppose, that it differed greatly from the testimony of a local attorney in Dade City that a reasonable fee there for the same services would be approximately $1,000. Within the purview of the same criteria set forth in Canon 2 alluded to above, it’s patent, we think, that a fee awarded in Dade City but predicated on Sarasota standards was error.

In view of the foregoing, therefore, the order appealed from should be and it is hereby reversed, and the cause is remanded for further proceedings not inconsistent herewith.

HOBSON and SCHEB, JJ., concur.

      . See, Code of Professional Responsibility, Canon 2, DR 2-106(B) (3).

      . Id.


source: Caselaw Access Project

author: PEARSON, Judge.

license: Public Domain

text:
    Irving B. LEVENSON and Robert Revitz, as Trustees, Appellants, v. BARNETT BANK OF MIAMI and Barnett Winston Investment Trust, Appellees.
    Nos. 75-1342, 75-1431.
    District Court of Appeal of Florida, Third District.
    April 6, 1976.

      Sibley, Giblin, Levenson & Ward, Joseph Pardo, Miami, for appellants.
    Mahoney, Hadlow, Chambers & Adams and John Aurell, Rosenberg, Rosenberg, Riesman & Glass, Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PEARSON, Judge.

These interlocutory appeals are from two successive orders in the same cause. They have been consolidated in this court. The first order entered during the course of trial treated objections of the defendant Barnett Winston Investment Trust to evidence presented as a motion to strike and thereupon stated that

“ . . . any testimony or evidence previously introduced, proffered or offered in this case relating or pertaining to the financial structure or condition of the Defendant Barnett Winston Investment Trust is hereby stricken from the record of this case, and the Court will not accept or consider any further testimony or evidence in connection with any such issue.”

The second order continued the trial of the cause and reserved ruling on plaintiffs’ motion to amend their complaint pending final outcome of the first interlocutory appeal and further granted defendants’ motion for the return to them of certain evi-dentiary matters produced pursuant to a court order. The main thrust of the appeals is that the court erred in refusing to allow the introduction of evidence of the financial ability of the defendants to perform under a commitment to lend the plaintiff $6,000,000.

The following background facts appear without controversy in the record: The plaintiffs entered into a written contract with the Barnett Winston Investment Trust for a $6,000,000 loan to be disbursed two and one-half years after the commitment. The plaintiffs paid a $30,000 initial commitment fee. In addition, the plaintiffs paid, by an irrevocable letter of credit, a $60,000 fee which is variously labeled by the plaintiffs as a standby fee and by the defendants as a portion of the commitment fee. It was agreed between the parties that the $60,000 fee was to be returned if the loan went through and retained by Investment Trust if it did not go through. The loan did not go through because of plaintiffs’ default in failing to complete the building which was to be the subject of the permanent mortgage.

Plaintiffs brought an action entitled “Complaint for Injunction” by which they sought and obtained an injunction against the delivery of the $60,000 additional fee to the Investment Trust. The injunction prohibited the payment of the irrevocable letter of credit pending suit. At trial, the plaintiffs tendered and obtained the introduction of evidence under a continuing reservation of objections by the defendant. This evidence had two aspects. First, there was evidence that the Investment Trust had not earmarked funds or sources of funds for use in the event the plaintiffs met the conditions of the commitment and were entitled to receive the $6,000,000 loan. Second, there was evidence that the Investment Trust, during the period between the making of the commitment and its expiration, would have been unable to deliver the $6,000,000 loan if the conditions for the loan had been met as provided for in the commitment letter.

After hearing testimony as set out above, the court reached the conclusion that the failure vel non to earmark and the inability vel non to make the loan were irrelevant to the issue of the entitlement of the Investment Trust to the $60,000 additional fee. Upon this conclusion, the interlocutory order first appealed was entered.

The plaintiffs, as appellants, urge that under the law set forth by this court in Financial Fed. Sav. & L. Ass’n v. Burleigh House, Inc., Fla.App. 1974, 305 So.2d 59, it was incumbent upon the Investment Trust, in order to earn the fees, to earmark funds for the payment of the loan in the event the plaintiffs complied with the conditions of the commitment. The following section of that opinion is relied upon as authority for this position:

“Hereunder, we first considered the trial judge’s treatment of the $78,000 commitment fee as interest. A commitment fee is not a charge for the use of money but rather a purchase of the right to secure a loan of money by a prospective borrower. In other words, it is a consideration for the lender’s setting áside or earmarking funds which are committed to be loaned in the future. Thus, we hold that the trial judge erred in categorizing as interest the one point ($78,000) commitment fee which the record in the case sub judice amply supports as being reasonable in that a one point commitment fee is customary and the acceptable practice in the trade.”

This court’s opinion in Burleigh House held that a commitment fee was improperly included by the trial court as a part of the interest paid upon a loan in a case where the borrower was claiming usury. The statement in that opinion of justification for a commitment fee was not intended to lay down a principle of law holding that in each case where a commitment agreement is made funds or sources of funds must be earmarked for the completion of that particular loan. Accordingly, we reject such an interpretation of that opinion, if it could reasonably be so interpreted.

We find no rule of law which requires the earmarking of particular funds or particular sources of funds for the completion of a loan agreed to under a commitment to loan. Therefore, we conclude that so much of plaintiff’s evidence which sought the establishment of the fact that funds were not so earmarked was properly stricken by the trial court because this did not present a reason for plaintiffs’ failure to pay the fees.

Turning now to the second aspect of the evidence which was stricken by the trial court in the first appealed order, the record reveals the evidence to be relevant to plaintiffs’ contention that the commitment letter and the agreement to pay the additional fee was, in fact, a void agreement because no consideration existed for the payment of the additional fee. It is well established that a party may not recover on a contract which he himself has rendered incapable of performance by his own inability to perform the promise given. Cf. Stokes v. Baars, 18 Fla. 656 (1882). “Before one can declare a forfeiture of sums due under a contract, he himself must first have complied with all terms under the contract.” Midstate Hauling Co. v. Watson, Fla.App.1965, 172 So. 2d 262, 266. For the Investment Trust to “compl[yj with all terms under the contract,” it must show more than the mere indicia of its ability to perform; that is to say, the Investment Trust cannot simply assert that because it holds itself out in the everyday business world as a lender of money it, therefore, is capable of fulfilling that lending function in a particular instance.

The basic premise of appellee’s argument on this point is that the $30,000 initial commitment fee and the irrevocable letter of credit for $60,000 are a unit and are together the commitment fee paid as consideration for the Investment Trust’s promise to make the loan if and when the plaintiff-borrowers comply with the terms of the promise to loan. If this is true, then the $30,000 initial commitment fee and the $60,000 irrevocable letter of credit will be judged by the same standards in determining whether defendant’s evidence presented a legal cause for the exercise of the court’s equitable powers to prevent the final payment under the letter of credit. The defendant relies upon the holding in Goldman v. Conn. General Life Ins. Co., 251 Md. 575, 248 A.2d 154 (1968), and cases cited therein, for an affirmance of the trial court’s conclusion that evidence of the Trust’s ability to perform was irrelevant. In the cited case, the court was concerned with a $17,000 fee exacted by Connecticut General as compensation for a commitment to make a loan. The court recognized that many cases hold that a lender has a right to retain a commitment fee when the borrower fails to avail himself of the lender’s undertaking. But the decision of the Maryland court concerned a different ground in that it held that under the facts of the case the payment by the borrower to Connecticut was a consideration for Connecticut’s commitment letter. In other words, the payment was consideration for a promise. We are impressed with the reasoning of the Maryland court and think that it is governing with regard to the initial payment' of the $30,000 commitment fee.

Are we justified then in applying any other reasoning to the second ($60,000) fee which the Trust described as having the same consideration ? 'One distinguishing factor between the initial fee and the irrevocable letter of credit is that the agreement between the parties provided that “the $60,000 commitment-standby fee will be returned to you [borrowers] without interest upon due compliance by you of all the covenants and conditions herein and upon disbursement of the loan.” We are aware that some commitment fees are returned to the borrower at the time the loan is consummated. See Boston Road Shopping Center, Inc. v. Teachers Ins. & Annuity Ass’n of America, 13 A.D.2d 106, 213 N. Y.S.2d 522 (1961), affirmed 11 N.Y.2d 831, 227 N.Y.S.2d 444, 182 N.E.2d 116 (1962). Nevertheless, we think there is some significance to the fact that in the present instance the fee to be charged is broken into two parts. It is reasonable, and supported by the facts in this case, that the $30,000 initial fee was the amount that the Investment Trust found necessary to charge in order to protect itself from the expenses and the time consumed by its employees in determining that the loan to the borrower was proper under its rules and regulations and good business practice. If this is true, then the purpose for the $60,000 refundable, “standby fee” was that it served as compensation for the Investment Trust’s holding itself in readiness to make the loan or as a liquidated damages provision in event the borrower failed to proceed with the business transaction.

The Supreme Court of Florida has held in Hutchison v. Tompkins, Fla. 1972, 259 So.2d 129, that where the court is presented with a situation where damages are not readily ascertainable at the time the contract is drawn, a provision for forfeiture of a deposit will be considered as liquidated damages, reserving to the court, in the exercise of its equitable powers, the power to grant relief from that provision insofar as it is inequitable at such time as actual damages are ascertained.

We hold that there is a basis for distinction between the two payrqents and that they need not be considered as one unified provision for a simple commitment fee. This position is reinforced by the fact that the Trust has itself labeled the second fee as a “standby fee.” The ordinary meaning of the word standby involves the holding of oneself in readiness. Therefore, the trial court will be entitled to determine whether or not the Investment Trust did, in fact, hold itself in readiness. Accordingly, we conclude that the order striking so much of plaintiff’s evidence that sought to establish the fact that the defendant was unable to carry through with its promise to make the $6,000,000 loan was error.

The second interlocutory appeal urges error upon the trial court’s order entered after the first interlocutory appeal. This order has several aspects which will be briefly discussed. Initially, the plaintiffs argue that the trial court was without jurisdiction to enter the second appealed order because of the pendency of the first appeal. We find no merit in this position because the trial court has jurisdiction to proceed with the trial of the cause even though an interlocutory appeal has been taken on some other aspect of the case. See Sunrise Beach, Inc. v. Phillips, Fla.App.1965, 181 So.2d 169. We find no provision in the second order which constitutes a judgment upon any of the matters raised in the interlocutory appeal.

The second point presented in the second interlocutory appeal claims error upon the trial court’s order directing the return of copies of certain documents obtained through discovery. It is claimed that the copies of these documents constituted work product of the attorneys and, therefore, could not be ordered returned. We find no merit in this position inasmuch as the conduct of discovery is a matter within the broad discretion of the trial court and will be reviewed in the appellate court only when a showing is made that the discovery order departs from the essential requirements of law. See Meiklejohn v. American Distributors, Inc., Fla.App. 1968, 210 So.2d 259. In the instant case, it is apparent that the court was concerned with the necessity to protect the defendant from what may prove to be unfounded claims. The balancing of a right of a party to discovery as against the unnecessary embarrassment to the party moved against is a matter properly considered by the trial court in its orders on discovery procedure. No error has been demonstrated under this point.

The third attack upon the second interlocutory order claims error upon the trial court’s denial of plaintiffs’ motion for leave to amend their complaint specifically to raise the issue of defendants’ financial capacity to make the $6,000,000 loan. The trial court having reserved ruling on the motion, as has previously been discussed, plaintiff is entitled to raise the issue of the impossibility of performance of the defendant’s promise to loan the $6,000,000. Therefore, the court was in error when it failed to allow the amendment of the complaint in this particular. In addition, plaintiffs urge that they should have been allowed to amend their complaint to assert a claim for the return of the original commitment fee of $30,000 upon the same ground. The claimed right to the return of the $30,000 commitment fee has previously been considered and, in accordance with that holding, we now hold that the court did not commit error when it failed to allow the amendment of the complaint in this particular.

The fourth matter argued by the appellant on the second interlocutory appeal claims error upon the trial court’s order changing the amount of the injunction bond. We have previously considered the amount of the injunction bond upon a motion to review supersedeas in this case and we find no error in the court’s order.

Accordingly, the first interlocutory order appealed which struck plaintiffs’ evidence on the issue of the defendants’ ability to comply with its promise to lend $6,000,000 is. reversed. The court’s order which struck evidence upon the issue of defendants’ failure to earmark funds or specific sources of funds for the $6,000,000 loan is affirmed. The issues raised in the second interlocutory appeal are found to be without merit and the orders appealed are affirmed except for the order which denied plaintiffs leave to amend their complaint to allege defendants’ inability to make the $6,000,000 loan as a basis for their claim that the $60,000 letter of credit should not be enforced. The denial of the leave to amend with regard to the $30,000 commitment fee is affirmed.

Affirmed in part and reversed in part.

      . This evidence was supported only by a general allegation in the complaint that the Investment Trust had failed to abide by its agreement. A later motion to amend the complaint was denied.


author: PER CURIAM.

text:
    STATE of Florida, Plaintiff, v. Carlos GUTIERREZ et al., Defendants.
    No. 75-1778.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for plaintiff.
    Burns & Arnovitz, Miami Beach, for defendants.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Pursuant to Rule 4.6, Florida Appellate Rules, 32 F.S.A., pertaining to certified questions, and the holding in Moeller v. Doe, Fla.App.1975, 309 So.2d 611, we decline to answer the certified question propounded to us by the circuit court. See Iorio v. State, Fla.App. 1974, 297 So.2d 116; and State v. Kanter, Fla.App.1973, 273 So. 2d 772.

Certified question denied.


text:
    The STATE of Florida, Plaintiff, v. Herbert U. MARTIN and Jerome P. Friedman, Defendants.
    No. 76-319.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Richard E. Gerstein, State Atty., and Alan E. Krueger and George Volsky, Asst. State Attys., for plaintiff.
    Virgin & Whittle, Miami, and James G. Gilmour, Coral Gables, for defendants.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

We decline to answer the certified questions propounded under Rule 4.6, Florida Appellate Rules. See Schwob Co. of Florida v. Florida Industrial Commission, 1942, 152 Fla. 203, 11 So.2d 782; Jaworski v. City of Opa Locka, Fla.1963, 149 So.2d 33.


text:
    Fred W. PHILLIPS, Appellant, v. Mary S. PHILLIPS, Appellee.
    No. 75-1240.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Robert V. Shea, Coral Gables, for appellant.
    Gaine & Gaine, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Ruhnau v. Ruhnau, Fla. App.1974, 299 So.2d 61.


author: BOYER, Chief Judge.

text:
    CHUNG-LING YU, Petitioner-Appellant, v. Marshal CRISER et al., Respondents-Appellees.
    Nos. Z-14, Z-25.
    District Court of Appeal of Florida, First District.
    March 19, 1976.
    Rehearing Denied April 14, 1976.

      Jon D. Caminez, Tallahassee for petitioner-appellant.
    Robert D. Bickel, University Atty., Fla. State University, and Herbert D. Sikes, Tallahassee, for respondents-appellees.
   BOYER, Chief Judge.

In these consolidated actions, petitioner challenges the method by which his employment as a non-tenured assistant professor of mathematics at Florida State University was terminated. His petition for writ of certiorari challenges the final order of FSU President Marshall which upheld petitioner’s termination. Petitioner has also filed a notice of interlocutory appeal from the Leon County Circuit Court order which stayed proceedings on all issues with respect to petitioner’s breach of contract action until this Court ruled on the issues raised in President Marshall’s order.

Petitioner was employed at FSU from September, 1969, until June, 1975. In September of 1974, petitioner filed his complaint in the Leon County Circuit Court, seeking damages and a decree of specific performance granting tenure based on breach of contract and violations of his constitutional and civil rights. When respondents filed a motion to dismiss the complaint on the ground that petitioner had not exhausted his administrative remedies, the parties signed a stipulation, dated November 15, 1974, in which petitioner agreed to submit his employment grievances to a Florida State University faculty committee which was to conduct a hearing pursuant to existing State University System Rules of Procedure Governing Faculty Grievances. The parties requested the court to abstain from any further consideration of the case until February 1, 1975. According to the stipulation, neither petitioner nor respondents waived their right to challenge the binding effect of any decision rendered by the university under the aforementioned procedure. On February 10, 1975, the parties received notice of a formal adjudicative hearing to be held 15 days later. The letter of notice informed petitioner’s counsel that, as requested, the complaint would be heard by the Faculty Professional Relations Committee rather than a hearing examiner, and that the committee would be advised on matters of procedures and proof by a part-time hearing examiner appointed by the university. In a letter written in response to the hearing notice, petitioner’s counsel acknowledged the receipt of notice and appeared to agree to the suggested procedures, requesting the additional requirement that the hearing examiner be acceptable to petitioner and be a person who had no association with the university or who had not worked for the university in the past.

At the hearing itself, both sides presented numerous witnesses whose testimony will not be summarized in great detail herein. Suffice it to say that the witnesses called by petitioner testified that petitioner’s work was satisfactory and that he should not have been terminated. Witnesses for respondents testified that the decision to terminate petitioner was not premised upon his national origin, union activities nor his civil suit filed in the Leon County Circuit Court relating to this matter but rather entirely upon an objective consideration of petitioner’s performance in comparison to the performance of other persons employed by Florida State University’s mathematics department. In its final report, the faculty committee found that petitioner’s termination was not based on his national ancestry nor union activities and recommended that the termination be sustained because petitioner had failed to carry his burden to establish that his termination was based on constitutionally impermissible reasons. FSU President Marshall sustained the faculty committee’s findings in his final order which petitioner challenges in his petition for writ of certiorari.

Two other orders are pertinent to our discussion of this cause. On June 3, 1975, the Division of Administrative hearings issued an order finding that it did not have jurisdiction to consider petitioner’s complaint requesting a formal hearing pursuant to F.S. § 120.57(1), On June 18, 1975, the Leon County Circuit Court Judge, ruling on respondents’ motion to dismiss petitioner’s breach of contract action filed in September of 1974, entered an order holding that because petitioner’s suit was dependent upon the question of wrongful termination, proceedings on the complaint filed by petitioner in the circuit court should be stayed pending the results of this Court’s review of the administrative action taken by Florida State University. Petitioner has filed a notice of interlocutory appeal from that circuit court order.

Petitioner initially argues that the Faculty Professional Relations Committee and the Board of Regents were without subject matter jurisdiction over 'the instant dispute. His jurisdictional objections may be placed into two categories. First, petitioner asserts that certain procedures employed by the Faculty Committee were taken in direct contravention of Florida’s Administrative Procedures Act. Second, he maintains that the Leon County Circuit Court erroneously refrained from ruling on petitioner’s complaint which contained contractual and constitutional issues upon which only a circuit court may rule.

We must, as a threshold matter, determine whether the 1973 version of the Administrative Procedures Act or the APA as revised applies. Resolution of that question will define our scope of review on petitioner’s claim of procedural irregularity. If we find that the APA as contained in Florida Statutes, 1973, is applicable, we need only decide whether the FSU Faculty Committee met the “minimum requirements” in adjudicating petitioner’s legal rights, duties, privileges and/or immunities. (See F.S. (1973) § 120.20) The APA, as revised, imposes more exacting requirements on state agencies. Moreover, the legislature clearly expressed an intent in revising the APA to make uniform the adjudicative procedures used by state administrative agencies by replacing other procedural schemes found in the Florida Statutes with the provisions of the APA. (F.S. (1974 Supp.) § 120.72(1)) An Agency may be exempted from the provisions of the APA only by express order of the Administration Commission and after a public hearing. (F.S. (1974 Supp.) § 120.63) .It is thus significant whether the instant proceeding should have been governed by the APA as it existed in 1973 or by the revised APA.

The revised APA gives us an indication as to which version of the APA applies. F.S. (1974 Supp.) § 120.72(2) provides:

“All administrative adjudicative proceedings begun prior to January 1, 1975, shall be continued to a conclusion under the provisions of the Florida Statutes, 1973, except that administrative adjudicatory proceedings which have not progressed to the stage of a hearing may, with the consent of all parties and the agency conducting the proceeding, be conducted in accordance with the provisions of this act as nearly as is feasible.”

Therefore, if the administrative adjudicative proceedings began prior to January 1, 1975, then the 1973 APA is applicable. Turning our attention to the record of the instant case, we focus upon the stipulation signed by the parties on November 15, 1974. That stipulation, in unmistakable terms, indicates petitioner’s desire to have his employment grievances heard by the appropriate Florida State University faculty committee in a hearing held pursuant to the State University System Rules and Procedure Governing Faculty Grievances. We are of the view that the stipulation is of such character as to constitute the beginning of the administrative adjudicative process for the purpose of F.S. § 120.72(2). Although the notice of hearing was issued and the hearing was held subsequent to January 1, 1975, nevertheless, the parties had clearly signaled their intent to invoke the university’s administrative system. Indicative of petitioner’s intent is his letter written in response to the formal notice of hearing wherein he accepted the proposed procedures with the additional suggestion that the hearing examiner have no previous ties with the university.

Petitioner claims that the revised APA should govern the instant proceedings because of the reservation of rights provision of the stipulation entered into between the parties, and certain state university system rules of procedure which appear to delineate the initiation of the administrative adjudicative proceedings as the date that the formal notice of hearing is issued. First, the reservation of rights found in the stipulation logically preserves the rights of both parties to seek appropriate judicial review of the findings of fact and conclusions of the agency. Placing the reservation of rights within the context of the entire stipulation, we find that it would be inconsistent with the obvious intent of the parties to accept petitioner’s argument concerning the reservation, to wit: that petitioner reserved his right to challenge the very validity of the university administrative process. To the contrary, that stipulation manifests the parties’ desire to rely on the university administrative system. Second, the State University System Rules of Procedure cited by petitioner to establish that the adjudicative proceedings did not begin until after January 1, 1975, are not applicable. For the purpose of determining when the adjudicative proceedings commenced under the APA, a consideration of the intent and actions of the parties is necessary. As already discussed, the key document in this regard is the November, 1974 stipulation whereby the parties plainly expressed their desire to place petitioner’s employment dispute before the appropriate university faculty committee. That expression of intent was sufficient to constitute an initiation of adjudicative proceedings, as the Division of Administrative Hearings found in its June 3, 1975 order.

Analyzing the instant proceedings by the standards found in the 1973 version of the APA, the validity of the procedures employed by the university becomes apparent. Specifically, petitioner’s assertion that the panel which made the proposed recommendation of petitioner’s termination was unlawfully constituted under the APA is without merit. The faculty committee, aided by a part-time hearing examiner, fulfilled the “minimum requirements” established by Chapter 120, F.S., 1973, and afforded petitioner every opportunity to present witnesses and evidence on his behalf.

Petitioner makes a further jurisdictional claim based on the contention that only the circuit court could rule on his breach of contract and constitutional allegations, and that the action of the circuit court in staying the breach of contract action pending a decision by this Court was clearly erroneous in view of the circuit court’s exclusive jurisdiction over breach of contract action. (See Fla.Const. (1958 Rev), Art. V, § 5(b) and § 20(c)(3), and F.S. § 26.012(2)(a)) However, claims such as those raised by petitioner in this case are properly determined by the academic community. (Cornwell v. University of Florida, Fla.App. 1st 1975, 307 So.2d 203) The evaluation of professionals involves judgment peculiarly possessed by those expert in the various academic disciplines. (Green v. Texas Tech University, 5th Cir.1974, 474 F.2d 594) Even constitutional issues raised in the context of a claim of unjustified termination should be heard within the institution before an administrative tribunal. (Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L. Ed.2d 570 (1972)) The circuit court properly suspended the judicial process pending final resolution of the issues raised before the faculty committee. (State ex rel. Shevin v. Tampa Electric Company, Fla.App.2d 1974, 291 So.2d 45) The university has the inherent authority to determine disputes concerning the evaluation of its faculty, but it also has been delegated specific authority by statute. (F.S. §§ 240.-001, 240.042, and 241.731) Petitioner cannot compel the relitigation of his claims once they have been determined by the university in a preliminary hearing complying with all procedural and substantive due process safeguards, merely by couching such claims in breach of contract or constitutional language. (U. S. v. Utah Construction Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966))

In the final argument relating to subject matter jurisdiction, petitioner claims that the recommendations of the faculty committee failed to deal with his contractual claims but merely decided whether he received the procedural protections to which he was entitled. Examination of the subcommittee’s recommended order leads us to the conclusion that petitioner’s contractual claims were fully considered. While the subcommittee did note that evidence of petitioner’s competence was irrelevant, this subcommittee, quite properly, did consider thoroughly the determinative question, i. e., whether petitioner was terminated for constitutionally impermissible reasons. The voluminous record in the case taken in conjunction with the subcommittee’s extensive findings of fact totally refute petitioner’s assertion that his contractual claims were not fully considered.

Petitioner next raises the sufficiency of the evidence. After a meticulous examination of the record on appeal, we conclude that the findings by the faculty subcommittee are supported by competent substantial evidence. Petitioner did not carry his burden of demonstrating that the decision to terminate him was motivated by considerations of national ancestry, of his union activities, nor of his appeal of the original decision taken in 1972 not to promote him. The record supports the finding that all evaluations of petitioner were based upon his teaching, research, and service, considered along with the needs of the mathematics department. In terminating petitioner, the university .adhered to its own rules. Petitioner was evaluated in terms of his performance of his assigned duties and responsibilities as required by F.S. § 241.731(1). Nor does the record support his allegations that he was neither afforded counseling nor formal warning of possible discharge prior to receiving notification of the non-renewal of his appointment.

Finally, petitioner urges that no act taken by the faculty evaluations committee is binding because the Government in the Sunshine Act (F.S. § 286.011(1)) was violated. That issue is raised for the first time on appeal, not having been raised by petitioner at any time below. The record on appeal is silent as to whether the Government in the Sunshine Act was violated. No testimony was introduced on the matter by either side, and no complaint was filed with a judicial body of original jurisdiction. Consequently, we find it inappropriate to consider the Government in the Sunshine Act issue at this time.

The petition for writ of certiorari directed to FSU President Marshall’s final order is denied, and the order of the Leon County Circuit Court appealed herein is affirmed.

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

      . Although petitioner expressed his intent to attack the division’s order in his petition for writ of certiorari, he has subsequently indicated in his brief that he has abandoned any attack of that order.


text:
    Robert Lewis BENTON, Appellant, v. STATE of Florida, Appellee.
    No. 75-1376.
    District Court of Appeal of Florida, Second District.
    April 14, 1976.

      Jack O. Johnson, Public Defender, and Dennis P. Maloney, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged in a two-count information with assault to murder (first degree) with a deadly weapon and having or using a firearm while in the commission of a felony. Appellant pled nolo contendere to both counts. Following a presentence investigation, the court adjudicated appellant guilty and sentenced him to five years imprisonment as to Count One (assault to murder). The trial judge adjudged appellant guilty as to Count Two (use of firearm) and, noting that the sentence in Count Two would be merged into the sentence on Count One, placed Count Two on the absentee docket.

The firearm used in commission of the offense charged in Count Two was the same weapon used during the commission of the assault charged in Count One. It is now well settled by case law of this state that where two offenses are facets of the same criminal transaction, the court can only impose one sentence and that for the higher offense after conviction for both offenses. Hence, any sentence imposed as to Count Two is improper.

Accordingly, the trial court is directed to correct its records by deleting from the judgment and sentence the reference as to Count Two being placed on the absentee docket. In all other respects the judgments and sentence are

AFFIRMED.

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


text:
    Anthony FERRARI and Arlene Ferrari, his wife, Appellants, v. Charles BIRDSONG and Ann Birdsong, his wife, Appellees.
    No. 75-824.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.

      Koppen & Watkins, Miami, for appellants.
    Byrd V. Duke, Jr., North Miami, for ap-pellees.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Anthony Ferrari and his wife sued Charles Birdsong and his wife on a written agreement of the Birdsong’s to hold the Ferraris harmless on a claim for a real estate brokerage commission. The Birdsongs answered claiming that the agreement was void as being without consideration because it was exacted by the Ferraris as a condition for the performance of the contract to buy the real property after the terms of the purchase were fully determined by written contract but not fully performed by the Ferraris. After a trial before the court without jury, judgment was entered for the Birdsongs and this appeal followed.

We affirm upon authority of the holding in F. L. Stitt & Co. v. Powell, 94 Fla. 550, 114 So. 375 (1927). See also 17 Am.Jur.2d Contracts § 461; and Spann v. Baltzell, 1 Fla. 301, 46 Am.Dec. 346 (1847).

Affirmed.


text:
    FIRST GULF BEACH BANK AND TRUST COMPANY, as Executor of the Last Will and Testament of Bertha Ellen Weller, Deceased, Appellant, v. Leo GRUBAUGH, an Individual, Appellee.
    No. 74-394.
    District Court of Appeal of Florida, Second District.
    April 9, 1976.

      John T. Allen, Jr., St. Petersburg, and James E. Elliott, St. Petersburg Beach, for appellant.
    Philip W. Dann of Baird & Dann; and Belcher & Fleece, St. Petersburg, for ap-pellee.
   PER CURIAM.

This is an appeal from a summary judgment enforcing a contract to make a will. The pertinent facts are fairly set forth in the final judgment as follows:

“Based upon the affidavits, interrogatories, and other material properly before this court, the uncontroverted facts are found to be as follows: Bertha Ellen Weller died testate, a resident of Pinel-las County, Florida, on June 3, 1971. Defendant, First Gulf Beach Bank and Trust Company, is the duly appointed and acting executor of Bertha Weller’s last will which leaves Plaintiff herein an amount equal to 7% of the residuary estate.
“During July of 1964, Plaintiff received a letter in the handwriting of Bertha Weller and bearing her signature, informing him that
what money I have I shall spend to be taken care of. [Wjhoever [sic] will take care of me will get all that I have. ... If you would be willing to give me a room and let your home be mine, I would be willing to pay you well and to give you all that I have left at the end. Whoever takes care of me would get all that I have except that I have to make out a will to give something to the church and [to pay] my funeral expenses.
Shortly after his receipt of the above quoted letter, Plaintiff departed from his home in Rochester, N. Y., and returned several days later with Bertha Weller who thereupon began living with Plaintiff in a room of her own specially modified at Plaintiff’s expense to accommodate her.
“The decedent resided with Plaintiff, his wife, and children for approximately one year before departing with the understanding that she could return at any time she desired. Her departure was occasioned by the fact that her health, which had been poor upon her arrival in Rochester a year earlier, had improved considerably during her residency with Plaintiff and she therefore was no longer dependent upon others for care and provisions. Plaintiff assisted her in locating other housing in which she remained for approximately eight months or until March of 1966 when she moved to St. Petersburg where she remained until her death.
“On October 27, 1964, Bertha Weller executed in Rochester a last will and testament which provided:
FIFTH: Of my net estate I give, devise and bequeath .
a) Eighty percent (80%) to my nephew, Leo Grubaugh ... to have and to hold the same absolutely and forever provided my said nephew shall care and provide for me in a proper and fitting manner in his home from the time that I determine that I need such care because of failing health until my death, (emphasis added)
The will further left 15% to Highland Park Baptist Church and 5% to Detroit Bible College.
“It is undisputed that the will of October 27, 1964 is in writing, bears the signatures of two subscribing witnesses, and was signed by Bertha Weller.
“This court is of the opinion that there exists no genuine issue as to any material fact relative to the allegations contained in the pleadings herein; that the will of October 27, 1964, is a memorandum sufficient to satisfy the requirements of Florida Statute § 731.051; that the contract entered into by Bertha Weller and Plaintiff was valid under the law of New York and that it is, so far as it is reflected in the will of October 27, 1964, enforceable in the courts of this state; and that Plaintiff is entitled to a summary judgment as a matter of law.”

The will of October 27, 1964, referred to by the court, was subsequently revoked, and Mrs. Weller died leaving a will in which the plaintiff-appellee was named the beneficiary of 7% of the net estate.

Appellant contends that the judgment must be reversed because it affirmatively appears that the alleged contract to make a will was not executed in conformity with the requirements of Fla.Stat. § 731.051 (1971), which reads as follows:

“731.051 Agreements to make a will, requirements.—
(1) No agreement to make a will of real or personal property or to give a legacy or make a devise shall be binding or enforceable unless such agreement is in writing signed in the presence of two subscribing witnesses by the person whose executor or administrator is sought to be charged.
(2) This section shall apply to agreements made on, after or prior to January 1, 1958.”

Obviously, there was no compliance with the specific requirements of the statute. Even if Mrs. Weller’s letter to appellee could be considered an agreement,, it fell short of the requirements of the statute because it was not signed in the presence of two subscribing witnesses. The issue turns on whether, as in the case of the statute of frauds, there are circumstances short of literal compliance which could be said to satisfy the statute.

The Florida courts have discussed this statute on several prior occasions, though sometimes by way of dicta. Where several defenses had been raised to a suit for enforcement of an oral contract to make a mutual will in Hagan v. Laragione, Fla.App.2d, 1964, 170 So.2d 69, this court stated:

“Defenses # 3 and # 5 contend that, since this estate consists of a large amount of real property, the enforcing of this alleged oral agreement would be violative of Fla.Stat., Secs. 689.01 and 725.01, F.S.A., which require conveyances or contracts to convey realty to be in writing. The appellees contend that the appellant is estopped from raising the statute of frauds because the appellant’s decedent accepted the full benefits of her first husband’s will, i. e., the alleged oral agreement has already been partly performed. 37 C.J.S. Frauds, Statute of § 100, provides:
‘ * * * Also it is immaterial whether or not an agreement to make a joint will or mutual or reciprocal wills is evidenced by a writing sufficient to give it validity under the statute of frauds where the survivor elects to, and does, accept the full benefits accruing to him under the joint will or the will of the other party.’
See also 169 A.L.R. 9 and Keith v. Culp, supra [Fla.App., 111 So.2d 278]. Thus it was not error to strike these defenses.
“Defense # 4 states that if, as was pleaded in the alternative, the alleged contract was not entered into until 1958, then Fla.Stat., Sec. 731.051, F.S.A., quoted above, is applicable. This contention cannot be sustained. The doctrines of part performance and estoppel enunciated in the last paragraph except this contract from the provisions of Fla.Stat., Sec. 731.051, F.S.A., as well as the other statutes of frauds. Keith v. Culp, supra.” •

In Fletcher v. Williams, Fla.App.1st, 1963, 153 So.2d 759, the court held that a defense predicated upon the failure to comply with Fla.Stat. § 731.051 was an affirmative defense which could not be raised by a motion to dismiss the complaint. In dissenting, Judge Sturgis said:

“As I understand the case, the Statute of Frauds has nothing to do with the issue, and the problem of the plaintiffs, which in my opinion they failed to solve, was to allege sufficient facts to state a cause of action upon which relief could be granted, notwithstanding the provisions of F.S. § 731.051, F.S.A.
“F.S. Section 731.051, F.S.A., both invalidates a contract of the type sued on and absolutely bars its enforcement. It establishes a substantive public policy and for that reason is not personal to the party affected in any given case.

The Third District Court of Appeal seems to agree with Judge Sturgis’ view of the statute. In Talmudical Academy of Baltimore v. Harris, Fla.App.3d, 1970, 238 So.2d 161, the court denied a petition for certiorari seeking review of the dismissal of a complaint attempting to enforce a written promise to make a bequest where the trial judge had relied upon the provisions of Fla.Stat. § 731.051. As in the instant case, the promise had been made in another jurisdiction, so the court first addressed itself to this issue by stating:

“Appellant urges that the section is not applicable because the copy of the cause of action attached to the complaint shows that the written promise was made in the State of Maryland. This argument is founded upon the principle that the validity of a contract will ordinarily be determined under the law of the place where it is made.' See Castorri v. Milbrand, Fla.App.1960, 118 So.2d 563. Section 731.051 is a part of the Florida probate law. It does not deal with the validity of an agreement but with the enforceability of the agreement in the courts of this state. As such it is a part of the public policy of the state dealing with the kind of claim against an estate that will be allowed or enforced by the courts of the state. It is therefore procedural in nature and is applicable to all actions such as the present one brought in this state. Cf. Fincher Motors, Inc. v. Northwestern Bank & Trust Co., Fla. App.1964, 166 So.2d 717.”

On the question of unenforceability in the face of the statute, the court said:

“Appellant’s second point urges a departure from the essential requirements of law in that the claimed premature action of the trial judge deprived the plaintiff of an opportunity to show either through a further pleading or at trial that § 731.051, Fla.Stat., F.S.A., is inapplicable by showing circumstances which would create an issue as to an exception to the statute. Appellant equates the provisions of the statute to various sections of the Statute of Frauds, § 725.-01, Fla.Stat., F.S.A., (Cf. Fletcher v. Williams, Fla.App.1963, 153 So.2d 759, 761) where exceptions to the unenforce-ability of certain oral promises have been engrafted upon the statute by judicial opinions. See cases cited at 15 Fla. Jur.Frauds, Statute of § 14.
“Appellant does not cite a recognized exception to the applicability of § 731.-051. Our research reveals only one possible exception. See Hagan v. Laragione, Fla.App.1964, 170 So.2d 69, 71. Under this circumstance we cannot hold that trial judge departed from the essential requirements of law by failing to begin a process of judicial attrition.”

See also City of Hope v. Levin, Fla.App. 3d, 1972, 266 So.2d 59.

The most recent analysis of the statute is found in Donner v. Donner, Fla.App.3d, 1974, 302 So.2d 452, in which the majority of the court held that a written but unwit-nessed separation agreement in which a husband agreed to make a will containing certain devises and bequests to his wife and child was held to be enforceable in spite of the statute. Significantly, however, the basis for this decision was that since the agreement had been ratified and approved in an Alabama divorce judgment and later upheld by a New York court in a suit attacking its validity, these adjudications were res judicata and entitled to full faith and credit so as to preclude those claiming under the husband’s new will from contending that the contract to make a will was unenforceable under the statute. On this point, the court said:

“We also do not think that under the circumstances of this case, Fla.Stat. § 731.051, F.S.A. serves as a bar to the enforceability of the contract because of the absence of two subscribing witnesses. Appellants rely heavily on Talmudical Academy of Baltimore v. Harris, Fla. App.1970, 238 So.2d 161. That case stands for the proposition that in an action to enforce a contract to give a legacy or make a devise, the contract will be unenforceable unless such agreement is in writing signed in the presence of two subscribing witnesses. This court held that Section 731.051 is part of the Florida probate law and the public policy of this state relating to the enforceability of claims against an estate.
“The crucial distinction between the Talmudical Academy case and the instant case is that in the former case the promisee was suing for the first time in a Florida court to enforce a contract which was valid only in a sister jurisdiction. There had been no prior judicial proceedings in that case such as there have been in the cause sub judice.”

Judge Carroll dissented because he felt that the Alabama and New York proceedings were not res judicata since the circumstances that gave rise to the defense did not occur until the husband died without having made a will in accordance with his agreement. He carefully analyzed the distinction between Fla.Stat. § 731.051 and the Statute of Frauds as follows:

“Oddly, because he was not called upon for any performance, Edward'Donner in his brief made the argument that the judgment should be affirmed on the ground that the Florida statute against enforceability was abrogated by partial performance. What performance, or by whom, was not stated. The brief of the appellee Beatrice Donner did not advance that contention. However, part performance would not operate to vitiate this statute which bars enforcement, although we are aware of a statement to the contrary in an opinion by the second district court of appeal, as a dictum since that case did not concern § 731.051 because the agreement involved there was made prior to the time the statute became effective. See Hagan v. Lara-gione, Fla.App.1964,170 So.2d 69.
“Prior to the enactment of § 731.051 Fla.Stat., F.S.A. requiring such agreements to be in writing with subscribing witnesses in order to be enforceable in Florida, agreements of that nature which were oral or in writing (without subscribing witnesses) were enforceable. As to those earlier cases, where an agreement to make a will involved a devise of real estate, it was necessary for such agreement to be in writing signed by the party to be charged in order to satisfy the statute of frauds. When such an agreement to devise real property was oral, but was performed or partly performed by the promisee, it was held that the performance could take the oral agreement out of the statute of frauds, as in the case of an agreement for a conveyance. Then, even without subscribing witnesses, there was no provision of law against its enforcement.
“The present statute is in a different category. It is a part of the Florida Probate Law, and, as in the case of wills where the statutory requirements for a valid will must be met in order for it to be admitted to probate, the statute in question prescribes requirements which are necessary for an agreement to make a will, in order for such an agreement to be valid and enforceable in Florida. To hold that part performance by the prom-isee of an otherwise unenforceable agreement to make a will would make it enforceable against the executors of the promisor would defeat the purpose and intent of the legislation. This is so because in most instances where a person enters into an agreement with another to make a will containing devises or bequests to the latter, it is done in return for some consideration supplied by, or undertaking on the part of the other person, such as to care for the promisor, and in most such instances there is performance, ’or some performance by the promisee. But it was for the purpose of precluding the enforceability of agreements of that kind, unless they were in writing and with subscribing witnesses, that § 731.051 was enacted.”

Ohio, which is one of the few states other than Florida with a special statute on contracts to make a will, construes its statute in the same manner as our Third District Court of Appeal views Fla.Stat. § 731.051. Originally, Ohio only had a general statute of frauds (GC § 8621). Then, in 1935 the legislature enacted GC § 10504-3 which dictates that an agreement to make a will must be in writing but does not require it to be witnessed. Referring to the new statute in Sherman v. Johnson, 1953, 159 Ohio St. 209, 112 N.E.2d 326, the Ohio Supreme Court said :

“That section requires that, in order to be valid and effective, a will must comply with certain definite formalities. The reason for such formalities is to prevent the diversion of a decedent’s estate from those who would take it under the statutes of descent and distribution except in instances where the decedent has clearly and deliberately expressed an intention to so divert it. If, by contract, the decedent can accomplish the same result, there would be a risk of so diverting his estate, not only without complying with those formalities but also perhaps without even any written agreement. Section 10504-3a was obviously designed to guard against this and to avoid the risk that future court constructions of Section 8621 would not sufficiently accomplish that purpose.”

Upon reflection, we are persuaded that Fla.Stat. § 731.051 is not a typical statute of frauds. The statute of frauds already applied to contracts to make devises of realty. By the passage of a separate statute containing different wording, we believe the legislature had more in mind than simply extending the statute of frauds to contracts for bequests of personalty. Fla.Stat. § 731.051 is specifically intended to require that one who contracts to make a will should do so with substantially the same formalities as when he executes his will. To permit part performance or an unwitnessed writing to obviate the statute would be to thwart its obvious purpose. We hereby recede from anything to the contrary which appears in Hagan v. Laragione, supra.

While Mrs. Weller’s will of October 27, 1964, was witnessed, it did not constitute an agreement to make a will which would be enforceable in the face of the statute. See Wilson v. Dunkle, 1955 Ohio Com.Pl.1955, 132 N.E.2d 483.

Since our opinion is dispositive of the case, the appellant’s other points will not be discussed. The summary judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

McNULTY, C. j., and HOBSON and GRIMES, JJ., concur.


author: CHARLES CARROLL, Associate Judge.

text:
    COMMUNITY NATIONAL BANK & TRUST CO., and Bache & Co., Inc., Appellants, v. Joseph VIGMAN et al., Appellees.
    Nos. 75-1543, 75-1558.
    District Court of Appeal of Florida, Third District.
    April 6, 1976.
    Rehearing Denied April 26, 1976.

      Mershon, Sawyer, Johnston, Dunwody & Cole and H. Michael Madsen, Fowler, White, Burnett, Hurley, Banick & Knight and Thomas E. Ashe, Miami, for appellants.
    Horton, Perse & Ginsberg, Dunn & Johnson, Miami, for appellees.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), .Associate Judge.
   CHARLES CARROLL, Associate Judge.

These interlocutory appeals by the defendants are from an order denying their motions to dismiss the second amended complaint for want of jurisdiction. The ground urged in the trial court by the defendants, and reasserted by them here is that the action is predicated on a liability or duty created by the Securities Exchange Act of 1934, and therefore would be maintainable only in a United States district court. We find merit therein, and reverse.

An initial complaint filed by the appellees on January 12, 1973, against Community National Bank & Trust Company, herein referred to as the bank, and Bache & Co., Inc., herein referred to as the broker, was dismissed with leave to amend, by a consent order.

The first amended complaint alleged that a meeting of the plaintiff Joseph Vigman and representatives of the bank and the broker resulted in an arrangement whereby the bank lent large sums of money to Vig-man on certain designated dates in 1968 and 1969 to be used for the purchase of securities through the broker; that the loans were evidenced by demand notes; that the amounts loaned by the bank to Vigman were so used, and the securities thus purchased were delivered to and held by the bank as collateral for the loans. It was alleged that the loans made for such purpose and the purchases of securities therewith were, and were known by defendants to be in violation of the margin limitations or credit restrictions imposed by the Securities Exchange Act of 1934 and regulations promulgated thereunder, citing 15 U.S.C. A., § 78a, and regulations T and U, 12 C. F.R. 220-221; that some of the securities purchased through the broker with said loan monies had been acquired in the names of the other plaintiffs, relatives of Joseph Vigman; and that “due to fluctuations in the market” losses were sustained which the plaintiff sought to recover from the defendants.

The defendants answered, and each filed a motion to dismiss for want of jurisdiction, on the ground mentioned at the outset of this opinion. The defendants motions to dismiss were granted, and an order was entered dismissing the amended complaint with leave to file a second amended complaint.

The subsequently filed second amended complaint repeated the allegations as to the meeting, and the arrangement by which registered securities were purchased through the broker with sums loaned by the bank to Vigman for that purpose, with the purchased securities pledged to the bank as collateral for the loans.

In place of the allegation in the first amended complaint that the activities of the bank and the broker incident to the purchase of the securities were in violation of the Securities Exchange Act of 1934 and regulations thereunder, it was alleged in the second amended complaint that such activities were not “customary and ordinary”, and that because of a decline in value of the securities purchased losses were sustained by plaintiff.

Additionally it was alleged that such activity of the bank constituted a fraud on plaintiffs, and that the loans by the bank were made for the purpose of increasing the bank’s business and to gain the profit to be derived therefrom. Regarding the defendant broker it was alleged the broker stood in a fiduciary relationship to the customer and was negligent by recommending purchases of securities on that risky basis, and did so for the purpose of promoting increased trading to create commissions. Included was a count by which the plaintiffs sought to rescind the bank loans as having been made in violation of Chapter S17, Fla.Stat., F.S.A. relating to Sale of Securities. In connection therewith no offer was made by the plaintiffs to return the parties to the status quo.

Although not expressly so alleged, the complaint furnishes basis to infer that after the purchased securities which were held as collateral for the loans declined in value, the loans were called, the devalued collateral was sold and proceeds thereof applied in part payment of the bank loans, leaving certain balances on the loans owed to the bank, which represented the losses sustained by the plaintiffs on their investments, for which plaintiffs sought recovery from the defendants. The defendants moved to dismiss the second amended complaint for want of jurisdiction in the state court to entertain the action. Their motions to dismiss were denied and these interlocutory appeals by the defendants ensued.

In the Securities Exchange Act of 1934 (15 U.S.C.A., § 78g), for the “purpose of preventing the excessive use of credit for purchase or carrying of securities”, a limit was placed on the percentage of the cost or value of securities for which credit could be extended to a customer dealing in registered securities on margin (fixed by the Act at 55% with some exceptions, and with authority conferred on the Board of Governors of the Federal Reserve system to vary the same from time to time, by promulgated regulations). Violation thereof by a broker was made unlawful by subsection (c) of § 78g, and by subsection (d) of § 78g it was made unlawful for a bank to extend or maintain credit to one in excess of such limitation, for the purchase or carrying of any security.

Section 78aa of Title 15 U.S.C.A., relating to “Jurisdiction of Offenses and Suits”, provides that the United States district courts have exclusive jurisdiction of violations of the chapter or the rules and regulations thereunder, and of “all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder”.

Section 78bb of Title 15 U.S.C.A. states that “The rights and remedies provided by this chapter shall be in addition to any and all other rights and remedies that may exist at law or in equity”.

The procedure in which the parties participated in the security purchases by the plaintiffs avoided and circumvented the excessive credit and margin limitation provisions of the Securities Exchange Act of 1934 applicable to the bank and the broker, and served to enable the customer to purchase securities on a basis equivalent to 100% margin. Plaintiffs chose to invest in the securities on that high risk basis, rather than by a safer method of investment in accordance with and observance of the investor-protective provisions of the Securities Exchange Act of 1934, and its regulations. Obviously the plaintiffs were gambling on a rise in the market value of the securities they purchased in that unprotected manner.

The determinative question as to the existence or non-existence of jurisdiction in the state court is whether the basis on which plaintiffs sought to recover for their investment losses was by reason of the defendants’ participation in the stock purchases in certain respects which were in violation of the provisions of the Securities Exchange Act of 1934 and its regulations, relating to excessive credit and margin in stock purchases (although the federal act was not cited in the complaint), in which event the state court would be without jurisdiction; or whether by the second amended complaint the plaintiffs stated causes of action against the defendants for recovery of their said losses, for violation by the defendants of duties imposed on them by existing law, apart from and not related to the liability of the defendants which may exist from their activities with reference to the transaction which were violations of provisions and duties under the Securities Exchange Act of 1934 and regulations thereunder, in which case the state court would have jurisdiction.

On consideration of the arguments of the opposing parties with reference to the foregoing, we find merit in the contention of the appellants that the second amended complaint represents an effort by the plaintiffs to recover from defendants for violations and breach of duties created and imposed on defendants by the Securities Exchange Act of 1934 with reference to the stock purchases, and does not separately state a cause of action, upon which the defendants could be held responsible to the plaintiffs’ for the losses on their investments, for breach by defendants of any duty imposed on them by existing law apart from liability under the federal act, for their conduct in the matter. Therefore, the state court was without jurisdiction to entertain such action.

Aside from the cause of action against the defendants because of violation of provisions of the Securities Exchange Act of 1934 and regulations thereunder, the other matters alleged against the defendants in the second amended complaint were not separately actionable. Most were linked to the violations of the federal act.

For a bank to engage in making loans to a customer in furtherance of the bank’s business and for profit is not a violation of any duty imposed by “existing law” or by the common law. The allegation that making loans to the plaintiffs for the purpose of purchasing registered securities was a fraud upon them by the bank was not accompanied by allegations of circumstances constituting fraud. Rule 1.120(b), F.R.C.P.

The claim presented in the second amended complaint that the broker was liable to the plaintiffs for facilitating plaintiffs’ purchases of registered securities in the method utilized and the bare allegations that the broker was a fiduciary and that its recommendation of securities for purchase was negligent, were insufficient to state a cause of action independent of the violations of the federal act.

The allegation, as to certain of the purchased securities (not described, that the broker guaranteed they would be sold at a profit was insufficient. That could not reasonably be construed as a guarantee that there would not be any fluctuations in the market value of such securities. It was not alleged that any time limit was fixed, or that the securities could not have been sold at a profit if they had been kept by plaintiffs, as they could have been if plaintiffs had not failed to furnish needed additional collateral to prevent the pledged securities from being disposed of upon forced sale by the bank at a time when they were devalued due to a fluctuation in the stock market.

Likewise the claim of liability against the broker for having so acted in the transactions for the purpose of increasing its business to create commissions, that is, for “churning”, had reference to a matter which would be a violation of the Securities Exchange Act of 1934, the jurisdiction for action upon which would be in the United States district courts.

If the broker violated a duty by permitting its customer to purchase securities through it on the basis of excessive credit extended by the bank, its liability therefor, if any, was not created by existing law, aside from the Securities Exchange Act of 1934.

No cause of action was stated against the bank for rescission of the loans. The conduct of the bank in the transactions was not in violation of the state statute referred to in the complaint (Ch. 517, Fla. Stat, F.S.A.). By § 517.25 thereof jurisdiction in the state court over civil suits instituted in connection with sale of securities exists only when “not in conflict with the Constitution or laws of the United States”. Therefore, to the extent that the transactions involving excessive credit or undercollateralized loans made by the bank for the purchase of the securities are relied on as a basis for action against the bank under the cited Florida statute, there would be no jurisdiction therefor in the state court, because it would be in conflict with the federal law whereby action therefor is maintainable only in the federal courts.

Accordingly we hold the defendants’ motions to dismiss the second amended complaint for want of jurisdiction should have been granted. The order denying those motions is reversed.

      . In illustration thereof the following was alleged :
      “6. In practice the tripartite arrangement between the Plaintiffs and the Defendants, BACHE AND CO., INC., and COMMUNITY NATIONAL BANK AND TRUST CO., worked as follows: If the Plaintiffs purchased $100,000.00 worth of stock on a given day, a bank would put up the money as a loan requiring Mr. Vigman to sign demand notes; Mr. Vigman would place his order for stock purchases with BACHE AND CO., INC., which would acquire the stock and de- ■ liver same to the bank as collateral for the loan or, in the alternative, would give the bank a “letter of intent” guaranteeing that the stock acquired with the borrowed money would be delivered to the bank as collateral for said loan.”

      . In addition to filing the interlocutory appeals the defendants filed a suggestion in prohibition and petitions for certiorari. The latter were dismissed by this court, leaving the appeals pending. Jurisdiction for these appeals from the interlocutory order denying defendants’ motions to dismiss rests on the tenuous ground that the inclusion in one count of a claim for rescission gave the action the character of one formerly cognizable in equity. See Rule 4.2a, F.A.R.

      . Where the facts disclosed in a complaint show the action is predicated on defendants’ violations of restrictions or duties imposed by the Securities Exchange Act of 1934 or regulations thereunder, the failure of the complaint to refer thereto or expressly to charge the defendants with the violations thereunder, will not operate to avoid the provision of the federal act by which jurisdiction for any ac-tioa so founded lies exclusively in the United States district courts. Webster v. Steinberg, 1968, 84 Nev. 426, 442 P.2d 894; Herron Northwest, Inc. v. Danskin, 1970, 1 Wash.App. 818, 464 P.2d 435 (reversed on other grounds, Wash., 476 P.2d 702). Cf. Johnson v. McNeill, 151 Fla. 606, 10 So.2d 143.


text:
    Jerry WITTENBERG, Appellant, v. George TILFORD and Ann Marie Tilford, his wife, Appellees.
    No. 75-2034.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Carey, Dwyer, Austin, Cole & Selwood, and David L. Swimmer, Miami, for appellant.
    Alfred Gustinger, Jr., Miami, for appel-lees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This interlocutory appeal is taken from an order denying appellant Jerry Witten-berg’s motion to dismiss and quash service of process. The plaintiff attempted to secure service upon this defendant pursuant to Fla.Stat. § 48.071. No other type of process was issued. The proof before the court demonstrates without issue that the defendant was not, at the time of the service of process, engaged in a business within this State. Therefore, the order appealed must be reversed and the cause remanded with directions to quash the attempt of service of process upon the appellant. Cf. Meiselman v. McKnight, Fla.App.1969, 226 So.2d 437.

Reversed and remanded.


text:
    Pedro CASTILLO, Appellant, v. The STATE of Florida, Appellee.
    No. 75-876.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for ap-pellee.
    Before HENDRY and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See State v. Davis, Fla.1971, 243 So.2d 587; State v. De Jerinett, Fla.App.1973, 283 So.2d 126; and State v. Giesy, Fla.App.1971, 243 So.2d 635.


author: BOARDMAN, Judge.

text:
    Evelyne R. BECHTEL, Appellant, v. ESTATE of V. Richard BECHTEL, Deceased, Appellee.
    No. 75-439.
    District Court of Appeal of Florida, Second District.
    April 14, 1976.

      Michael R. N. McDonnell of Brown, Smith, Young & Pelham, Tallahassee, for appellant.
    B. Clarke Nichols of Vega, Brown & Nichols, Naples, for appellee.
   BOARDMAN, Judge.

The question for determination in this appeal is whether bearer bonds found in a safe deposit box leased in the names of decedent/husband, Bechtel, and/or his wife, were held by them as tenants by the entirety. The trial court held they were and that the decedent’s surviving spouse became owner as a matter of law. We reverse.

Bechtel died intestate on October 4, 1967, with an estate valued at over $2,000,000. He was survived by his wife and a son from a former marriage. Upon his death $550,000 in bearer bonds were found in the safe deposit box in the Bank of Naples leased by the decedent on December 18, 1962. Although the lease agreement indicated that the box was for the use of Bechtel and/or his wife, she did not actually sign the lease until after his death. Nothing in the lease referred to the ownership of the contents of the box. According to decedent’s wife, there were two keys to the safe deposit box. One of these keys was nominally hers; however, she testified it was “. . . the rule of the house . . .” that she could not open the safe deposit box. Although both keys were kept in her husband’s desk, she never opened the box, either alone or in the company of her husband. After Bechtel’s death, the keys could not be found and it was necessary that the box be drilled open. The contents of the box consisted of stocks in decedent’s name, stocks in his wife’s name and the bearer bonds mentioned above.

Upon Bechtel’s death, his wife, acting as administratrix, declared the bonds to be property held by them as tenants by the entirety. Thus, they were not included in the inventory filed in the probate proceeding. An objection to inventory was filed by the appellant who asserted that the bearer bonds should have been included as assets of the estate. Appellant is the former wife of the decedent’s son, and is an interested party by virtue of a divorce settlement in which the court awarded her a 40% interest in her former husband’s share of his father’s estate.

A hearing was held on the objection. Over appellant’s objection, decedent’s wife was permitted to testify that the decedent had suffered a heart attack three years prior to his death and at that time had told her not worry because the negotiable bonds were available to take care of her when he died. The court rejected appellant’s objection to said testimony on two grounds. The court found that there was a waiver of the Dead Man’s Statute (Fla.Stat. § 90.-05) during the taking of a deposition and that “. . . the more modern approach .” is to allow the trier of the facts to give the testimony “. . . such weight as it may be worth.” The court subsequently entered an order denying the objection to the inventory and finding that the bonds were owned by the decedent and his wife as tenants by the entirety at the time of the decedent’s death and thereby, as a matter of law, became the property of his wife.

Appellant contends that the trial court erred in finding that the bonds were held as an estate by the entirety.

After a careful review of the entire record and briefs of counsel, we agree with appellant. It is well settled in this jurisdiction that a tenancy by the entirety must possess unity of possession (joint ownership and control) ; unity of interest (the interest must be the same); unity of title (the interest must originate in the same instrument) unity of time (the interest must commence simultaneously); and the unity of marriage. First National Bank of Leesburg v. Hector Supply Co., Fla. 1971, 254 So.2d 777. Each of these unities must be present in order to uphold the ruling of the trial court. However, with the exception of the “unity of marriage,” the other characteristics of a tenancy by the entirety are not present in this case. The mere leasing of a safe deposit box is insufficient, standing by itself, to create a joint tenancy or a tenancy by the entirety in its contents. See 40 A.L.R.3d 462 (1971). This is particularly true where, as here, decedent’s wife did not exercise any control over the box and its contents and where the safe deposit box lease was silent as to the ownership of the contents. Compare Lilly v. Schmock, 1941, 297 Mich. 513, 298 N.W. 116, and Graham v. Barnes, 1927, 259 Mass. 534, 156 N.E. 865, with Bauernschmidt v. Bauernschmidt, 1903, 97 Md. 35, 54 A. 637, and Frey v. Wubbena, 1962, 26 Ill.2d 62, 185 N.E.2d 850. Cf., Canova v. Florida National Bank of Jacksonville, Fla.1952, 60 So.2d 627. The fact that a person may have the right of access through a written instrument to the contents of a safe deposit box does not mean, absent such language in the lease agreement, that said person has a right to the ownership of the contents found in the box. See In re Brown, Sur.Ct., Kings County, 1914, 86 Mise. 187, 149 N.Y.S. 138, and In re Wilson's Estate, 1949, 404 Ill. 207, 88 N.E.2d 662. We have been unable to find a Florida case in which this precise question has been decided. We are convinced that the law enunciated in the above-cited cases is ample decisional authority to support our position with regard to this issue.

Appellant in her second point asserts that the trial court erred in finding that there was a valid waiver of the Dead Man’s Statute. Upon examination of the record, we do not believe it shows that there was a waiver of the protection of the Dead Man’s Statute by appellant. The alleged waiver is said to have occurred during the taking of a deposition of decedent’s wife when, in a nonresponsive answer to a question by appellant’s attorney, she volunteered that the decedent made a statement to her approximately three years prior to his death that the bonds in issue would provide for her needs. The question, as posed, did not amount to an inquiry into a transaction with the decedent that would have constituted a valid waiver. This unsolicited testimony as to decedent’s intent should not have been considered by the trial judge to have constituted a waiver of the protection of the statute. See Fla.Stat. § 90.05. In any event, the mere taking of a deposition will not waive the protection of the aforesaid statute. Bordacs v. Kimmel, Fla.App.3d, 1962, 139 So.2d 506; Small v. Shure, Fla.1957, 94 So.2d 371.

Concluding as we do that the bonds in question were owned by the decedent and upon his death should have been included in the inventory of his assets filed in the estate, we hold that the trial court erred in holding otherwise. Accordingly, we reverse and remand this case to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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


text:
    Hazel E. Wallman BARTH, Appellant, v. FLORIDA STATE CONTRACTORS SERVICE, INC., Appellee.
    No. 74-329.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Prunty, Ross, DeLoach & Olsen, Miami, for appellant.
    Fink & Syna, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered in this cause on October 22, 1974 (302 So.2d 476) affirming the judgment of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of said judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed January 21, 1976, 327 So.2d 13 and mandate now lodged in this court quashed this court’s judgment and remanded the cause;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on November 18, 1974 is withdrawn, this court’s judgment filed October 22, 1974 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the judgment of the circuit court is reversed and the cause is remanded for jury trial on appellant’s counterclaim. Costs allowed shall be taxed in the trial court (Rule 3.16b, F.A.R.).


author: PER CURIAM. DOWNEY, Judge

text:
    Carl SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 74-1204.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1976.
    Rehearing Denied May 5, 1976.

      Richard L. Jorandby, Public Defender, and Martin H. 'Colin, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Linda Collins Hertz, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

Appellant appeals his conviction of resisting arrest without violence. Omitting as unnecessary a statement of the facts, we conclude that appellant’s arrest was illegal and that he was entitled to a judgment of acquittal at the close of all of the evidence. The judgment is reversed and the cause remanded with directions to discharge appellant.

REVERSED and REMANDED.

CROSS and OWEN, JJ., concur,

DOWNEY, J., dissents, with opinion.

DOWNEY, Judge

(dissenting).

I would affirm the judgment of conviction because I think the arrest was lawful.

Regarded in the light most favorable to the verdict, the record shows the following events occurred. Officer Gregory, while on routine patrol, received a call to investigate an automobile accident. He went to the place specified and spoke with the owner of a car that had been struck by another while the first was parked. The owner told him a car had backed into his and then had left the scene of the accident. He could not give the officer the license plate number of the offending car, but he did give him a description of that car and told him that the last name of its occupants was Scott. At that point the owner saw appellant coming down the street with two companions. He told Gregory that appellant was in the car, but he did not know if he was the driver or the passenger. Gregory (who was in uniform) then approached appellant and told him he was an officer making a police investigation into a hit and run accident in which appellant and his brother were involved, “and [he] would like to talk to them about it.” Appellant put his hand in the air and told Gregory “he didn’t have to tell [Gregory] a fucking thing and to keep away from him.” Gregory told appellant he was not interested in giving anybody a ticket but merely wanted to complete an accident investigation form. Appellant doubled up his fist and told Gregory “to keep the fuck away from him, and he didn’t have to tell [Gregory] a fucking thing.” Gregory then asked appellant for some identification. Appellant doubled up his fist and went into a fighting stance and told [Gregory] to keep [his] “fucking hands off of him.” Gregory then told appellant “that he was under arrest for using loud and profane language and failing to give information at the scene of an accident, and [Gregory] put [his] left hand on appellant’s elbow.” Appellant “jerked away and told [Gregory] to keep [his] mother-fucking hands off him, and it would take somebody a lot bigger than [Gregory] to put him in jai[1].” Appellant then “swung at [Gregory]” and a struggle ensued during which appellant tried several times to get Gregory’s gun. Appellant slipped out of Gregory’s grasp “and tried to walk away again.” When Gregory again tried to subdue him, appellant again told Gregory to keep his “fucking hands off of [appellant].” Appellant reached toward his own back pocket in a manner that led Gregory to think that appellant was going to pull a weapon. Whereupon Gregory drew his own gun and made the appellant bring his hands into the open. Appellant told Gregory: “go ahead, that’s all you want to do, is shoot a black man.” After ascertaining that appellant was not armed, Gregory holstered his gun and again tried to subdue appellant. Finally, after using mace, Gregory managed to subdue and handcuff appellant. During the struggle a very large crowd had gathered.

The record demonstrates Officer Gregory knew that the driver of a motor vehicle involved in an accident has a duty to report the accident and if the driver is unable to make such a report then a passenger has the duty to make it. § 316.062, F. S. Gregory had reasonable grounds to believe that the appellant was either the driver or a passenger in a vehicle involved in an accident. He was therefore clearly involved in lawful investigation at the time the incidents leading to appellant’s arrest took place.

It is established that the state has the burden of proving that the arrest with which an individual is charged with resisting was a lawful arrest. Rosenberg v. State, Fla.App. 1972, 264 So.2d 68. Whether the present arrest is lawful depends upon whether the officer had substantial reason to believe the appellant was committing misdemeanor in his presence. City of Miami v. Albro, Fla.App.1960, 120 So.2d 23. Thus the dispositive question in this case is: Was the appellant’s arrest lawful, i. e., was appellant’s arrest based upon probable cause ? In my opinion it was.

The state urges that the arrest was lawful under § 847.04, F.S., which makes it a misdemeanor for anyone who has reached the age of discretion to use “profane, vulgar and indecent language, in any public place . . ..” Regarded in the light most favorable to the verdict, the evidence is consistent with the theory that appellant was arrested under § 847.04.

The Supreme Court of Florida held that § 847.04 is constitutional in State v. Mayhew, Fla. 1974, 288 So.2d 243. The defendant in that case had been “informed against for the use of profane, vulgar, and indecent language, to wit: ‘mother-f-,” in a public place so as to be heard by others, contrary to the provisions of Section 847.04, Florida Statutes, and for resisting arrest with violence contrary to the provisions of 843.01, Florida Statutes, F.S.A.” Id. at 245.

On motion by the defendant the trial court dismissed the information on the ground that § 847.04, F.S., was unconstitutional on its face.

The Supreme Court reversed:
“We disagree with the trial court and find that the statutory provision in question is neither impermissibly vague nor unnecessarily overbroad, nor does it violate the First Amendment to the Constitution of the United States.” Id. at 246.
“The enactment of Section 847.04, Flordia Statutes, F.S.A. is a valid exercise of the state’s police power and may reasonably be construed as expedient for the protection of public safety, public welfare and public morals, in order to maintain public decency and order.” Id. at 248.
“The language sought to be proscribed by Section 847.04, Florida Statutes, F.S. A., falls within the narrowly limited classes of speech described by the Supreme Court in Chaplinsky which ‘. . . include the lewd and obscene, the profane, the libelous, and the insulting or “fighting words” — those which by their utterance inflict injury or tend to incite an immediate breach of the peace.’ In accordance with the policy of this Court to construe a statute when possible in a manner supportive of its constitutionality, we find that the language sought to be prohibited by Section 847.-04, Florida Statutes, F.S.A., is that which would necessarily incite a breach of the peace.” Id. at 251.
The court went on to say that
“Since the record before us does not indicate in what context the words ‘mother f_’ were used, we cannot at this time determine whether they are incorporated within the language sought to be proscribed by this statute.” Ibid.

However, the court remanded the cause with instructions to reinstate the information charging violation of § 847.04 and § 843.01.

I would distinguish Phillips v. State, Fla.App.1975, 4 DCA, 314 So.2d 619, on the basis that the defendant there was arrested upon a charge of breaching the peace in violation of § 877.03 F.S. 1973. Here the appellant was arrested upon a charge of using loud and profane language and failing to give information at the scene of an accident. It appears to me that the officer was in the lawful execution of his legal duty here and that appellant’s conduct was a clear violation of § 847.04 F.S. 1973.

In light of the holding in the Mayhew case, it was proper for the jury in the present case to conclude (a) that Officer Gregory had reasonable grounds to arrest appellant under authority of § 847.04, and (b) that appellant’s resistance to that arrest was unlawful. Compare City of Cincinnati v. Karlan, 35 Ohio St.2d 34, 298 N.E.2d 573, 578 (1973); vacated 416 U.S. 924, 94 S.Ct. 1922, 40 L.Ed.2d 280; reaffirmed 39 Ohio St.2d 107, 314 N.E.2d 162 (1974); cert. denied, 419 U.S. 1056, 95 S. Ct. 640, 42 L.Ed.2d 654. I do not think White v. State, Fla.1976, 330 So.2d 3, requires a different result.

I would therefore affirm the judgment and sentence in this cause.