text:
    Noel CHANDLER and Robert Granger, Appellants, v. The STATE of Florida, Appellee.
    No. 77-2624.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Rehearing Denied Jan. 17, 1979.

      Hirschhorn & Freeman and Joel Hirsch-horn, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Steel, Hector & Davis and Talbot D’Al-emberte and Donald M. Middlebrooks, Miami, for Post-Newsweek Stations of Florida, Inc. as amicus curiae.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Appellants Noel Chandler and Robert Granger were the defendants to a four count information growing out of the burglary of Picciolo’s Restaurant, Miami Beach, Florida, on May 23, 1977. At the time of the filing of the information on July 1, 1977, the two defendants were police officers with the City of Miami Beach Police Department.

During the trial, the defendants filed various motions and challenges to Florida’s Experimental Canon 3 A(7). Pursuant to this canon, cameras were permitted to televise portions of the defendants’ trial. The challenges were overruled and requests to exclude live television coverage were denied. In addition, the defendants’ request to sequester the jury was also denied.

The trial in this case began on December 5, 1977. During the trial, evidence was presented to the effect that a few days prior to the burglary in question, defendant Chandler was one of several Miami Beach police officers who investigated another burglary at Picciolo’s Restaurant.

On Sunday, May 22, 1977, Picciolo’s Restaurant closed at 12:30 a.m., early on the morning of May 23, 1977. Upon reopening the restaurant at 8:00 a.m. on the morning of May 23rd, one of the cooks noticed that the floor safe, which had contained the previous day’s receipts, had been “drilled” and was empty. Also, a door leading outside was open.

During the trial, defense counsel sought a Writ of Body Attachment against Don Froschneider, who had been subpoenaed as a defense witness and whose testimony was said to be essential, inasmuch as he had brought a condensed cassette tape to the Miami Beach Police Department. This tape had been made by John Sion. The court stated that the condensed tape was not material except insofar as it might shed some light on when the original tape was made. Defense counsel argued that this was the reason, in fact, that he was seeking Froschneider’s testimony. Defendants here argue that this fact is especially important in light of their affirmative defense of alibi for the night in question.

The recording originally made by John Sion has an extremely interesting origin. During May, 1977, Sion, who lived with his mother in an apartment near Picciolo’s Restaurant, was awakened one morning (on an undetermined date) at 2:50 a.m., at which time he switched on his ham radio receiver and began reading a book. Upon hearing a conversation over the radio about “registers,” he thought that the conversation might concern a robbery and, therefore, he began taping the conversation. Sion was unable to give the exact date of the making of the tape, although he testified that he had discussed the matter with Froschneider on May 26, 1977. During their first conversation about the tape recording, Sion gave Froschneider the frequency numbers on which the conversation had been overheard and Froschneider wrote the numbers on a piece of paper. Froschneider contacted Sion about hearing the tape and Sion played the tape for him, but Froschneider had trouble understanding it. Therefore, Sion made a condensed version of the original tape, omitting the numerous pauses.

Miami Beach Police Office Charles Hayes testified that he had observed defendant Granger at about 3:00 a.m. on the morning of May 23, 1977, driving a marked Miami Beach Police vehicle. He testified that he observed Granger, who was in uniform, four or five times that morning within a two block radius of Picciolo’s Restaurant. During the direct examination of Hayes, the jury was excused for the purpose of inquiring into the admissibility into evidence of Sion’s original tape. The tape was played in its entirety. Hayes stated that he had previously heard the condensed version of the tape. Defense counsel objected to the admission of the original tape, arguing that there was no evidence linking it to the allegations contained in the information and that no testimony existed that the tape was made on May 23, 1977. The objection was overruled by the court and the tape was admitted into evidence. Upon, the jury’s return to the courtroom, the original tape was again played in its entirety for the jury. Hayes identified the voices on the tape as those of the two defendants. The tape contained numerous statements purporting to link the defendants to the burglary. On cross-examination, Hayes admitted remembering something about a complaint once made by Chandler and an Officer Wilson against him (Hayes) to the police supervisor. Upon objection by the prosecutor, the court limited any further inquiry into Chandler’s complaint against Hayes.

On June 17, 1977, state attorney office investigator William Riley secured the original tape from Sion. Both Sion and Riley initialed the tape and dated it. On July 12, 1977, Riley obtained the inner-mechanisms of several locks from Picciolo’s Restaurant, including the lock from the door which had been discovered open. The locks were submitted to the Public Safety Department Crime Lab for analysis and it was determined that there were scratches in the lock that had come from the exterior side of the opened door and which were relatively fresh. A locksmith, Earl Hall, concluded that as the marks had been made on the pins of the lock, the lock had been “picked.”

Police testimony revealed that Granger and Chandler did not work the shift from 11:00 p.m. on May 22, 1977, to 9:00 a.m. the following morning. Further testimony revealed that in May and June of 1977, because of the large number of police vehicles owned by the Department, some of the unused vehicles were kept on the street behind the station.

The chief maintenance engineer at La-Gorce Country Club testified that in January of 1977, defendant Chandler had approached him with regard to radio equipment and that Chandler had shown him two walkie-talkies on June 3, 1977.

Upon the prosecution’s resting its case, defense counsel moved for a judgment of acquittal on the basis of insufficient evidence and the lack of a prima facie case. Defense counsel further argued that the case of the prosecution consisted solely of inferences piled upon inferences. The court denied the motion and the defense proceeded with its testimony and evidence.

Donald Froschneider testified about his conversation with Sion concerning the tape recording and, although not recalling the exact date of the conversation, placed it at about Memorial Day (May 29) of 1977. He testified that he had listened to the condensed version of the tape at a subsequent time and that Sion had written down the frequency numbers on a piece of paper. He stated that he had brought the numbers to Lieutenant Webb of the Miami Beach Police Department, as well as the condensed version of the tape. Lieutenant Webb testified that he received the tape from Fros-chneider at the end of May, 1977, and that he immediately turned over the tape to Sergeant Morgan. Sergeant Morgan testified to receiving the tape from Lieutenant Webb on June 3, 1977, and that a piece of paper with numbers accompanied the tape, but he could not explain what happened to the piece of paper.

Sergeant Monteagudo of the Miami Beach Police Department testified that he received the condensed tape from Morgan on June 7, 1977, that he initialed it, which was standard police procedure, that he wrote the words “B and E, Granger and Chandler” on the tape but that later he obliterated the writing and subsequently turned the tape over to Martin Dardis of the state attorney’s office.

Defendants moved that the condensed tape be admitted into evidence but the prosecutor’s objection to that motion was sustained, and the defendants, therefore, renewed the motion, which was denied, at the conclusion of all the testimony.

Defendants sought to call Miami Beach Police Officer Robert Wilson, but the prosecution objected to any testimony by Wilson concerning a complaint by Wilson and Chandler against Hayes. Defendants submitted that the testimony involved two issues: (1) Hayes’s bias and prejudice and (2) the impeachment of Hayes’s prior statements in court. The court ruled that the testimony was inadmissible as it was independent evidence of bias and prejudice.

Defense counsel then proffered that Warren Holmes would testify that he was told by Sion that the original tape recording was made during the Memorial Day weekend. This testimony was excluded by the court over the defendants’ objection.

Sion’s mother, Helen Sion, testified that she had been present at the time that the recording was made and that this took place at the end of May, 1977, subsequent to an eye operation she had undergone. Records of the date of her operation were placed into evidence.

The wives of both defendants testified that they were with their respective husbands during the entire period of the evening of May 22nd to the morning of May 23, 1977, and that neither defendant left home after retiring to bed between 11 o’clock and midnight on the 22nd.

At the conclusion of all the testimony, the defense renewed its motion for judgment of acquittal, which was denied, and the case was submitted to the jury. During consideration, the jury requested (through a written note) that the condensed tape be sent into the jury room. The court denied this request because the condensed version of the tape had not been introduced into evidence. The defense had previously attempted to introduce, out of the presence of the jury, the testimony of an expert witness who would describe orally and corroborate by photographs the purposeful effort to obliterate certain writings on the face of the condensed tape. However, this evidence was excluded as not being relevant or material to the issues.

The jury returned a verdict of guilty against both defendants and the court entered judgments thereon. Defense counsel then requested a presentence investigation, but inasmuch as Count I was a misdemean- or, no presentence investigation would be allowed on that count. Defense counsel argued that sentencing on the misdemeanor should be deferred pending completion of the presentence investigation and that if the court sentenced the defendants on the misdemeanor alone, then the court would be required to deny bail pursuant to Fla.R. Crim.P. 3.691(a). The court agreed with defense counsel’s interpretation of this rule. Defense counsel then inquired whether the court would consider bail pending appeal if the defendants waived a pre-sentence investigation. The court agreed, and the defendants waived their right to a presentence investigation. Thereupon, the court sentenced the defendants on all charges and ordered that they be taken into custody on the ground that no notice of appeal had been filed and they were, therefore, not entitled to bail pending appeal. The following day, notice of appeal having been filed, the court set appeal bonds on both defendants. Post-trial motions were denied on the grounds that the court lacked jurisdiction. Subsequently, on December 29, 1977, this court temporarily relinquished jurisdiction to afford the trial court an opportunity to rule on the defendants’ post-trial motions. Pursuant to this court’s order, on January 4, 1978, the trial court conducted a hearing on, and denied, the motions.

The first point of the defendants urges error upon the trial court’s refusal to preclude television cameras from their trial. Experimental Canon 3 A(7), Code of Judicial Conduct of the State of Florida, was promulgated by the Florida Supreme Court pursuant to its inherent and constitutional power under Article V of the Florida Constitution. The canon establishes standards and criteria for the use of cameras and electronic recording devices in all of Florida’s courtrooms. The court, therefore, must be presumed to have considered that the adoption of the canon preserves the rights of the parties.

In determining that a one year trial program should be instituted, the Florida Supreme Court has determined that camera coverage of a trial does not, in and of itself, violate the federal and state constitutions. Petition of Post-Newsweek Stations, Florida, Inc., 327 So.2d 1 (Fla.1976), 337 So.2d 804 (Fla.1976), 347 So.2d 402 (Fla.1977), 347 So.2d 404 (Fla.1977). We, therefore, decline to discuss further the constitutionality per se of the canon, although we will, in view of the importance of the question involved, certify the decision to the Supreme Court of Florida as a question of great public interest.

We pass on to that portion of the defendants’ point which urges that matters occurring in their trial pursuant to the experimental canon deprived them of their right to a fair trial and was violative of due process of law. The defendants urge error with regard to two rulings allowing television cameras in the courtroom during their trial; error is urged (1) in declining to preclude television cameras from their trial and (2) in declining to sequester the jury. However, the defendants have not met their burden of showing from this record that either of these circumstances operated to deprive them of a fair trial.

We have examined the record in the light of the defendants’ contentions under this point and find no reason on this record to hold that the admission of television cameras into this particular trial caused the defendants any difficulty in the preparation or presentation of their case or deprived them of a impartial jury. Accordingly, we hold that no error is shown by the defendants’ first point.

The defendants’ second point urges that the trial court erred in denying their motion to suppress the tape recorded conversation.

Section 934.02(1), Florida Statutes (1977), defines “wire communication” as

“. . . any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of intrastate, interstate or foreign communications;”

It is clear that the tape recording in this case was not an interception of a communication transmitted by wire or cable furnished or operated by a common carrier. The defendants engaged in an “open air” conversation while using commercially-sold walkie-talkies or handie-talkies. John Sion heard the conversation by accident when he turned on his short-wave radio receiver. Sion was a private individual who lived in an apartment on the tenth floor of a highrise building near Picciolo’s Restaurant, where the conversation of the defendants took place. He had purchased his shortwave-band radio receiver from a commercial retailer of electronic equipment.

At trial, defendant Chandler testified that he and defendant Granger staged a bogus burglary on the air as a part of a wager to see whether anyone was listening. The trial court correctly concluded from the testimony that the defendants did not exhibit a justifiable expectation that their conversation would remain private.

Even without this justification, we would hold that the intercepted conversation is not prohibited by Chapter 934, Florida Statutes (1977).

The third point presented urges that it was prejudicial error for the trial court to deny the defendants’ offer into evidence of the condensed version of the taped conversation. It is argued that the condensed version was relevant because: (1) all voice identifications were made from it, and (2) the admission of the condensed version would have corroborated defendants’ alibi defense.

Trial courts enjoy a certain discretion in the ruling on the admissibility of evidence. Simply because a defendant thinks that tendered evidence might be beneficial does not make its rejection reversible error. Cf. the principle of law in Rodriguez v. State, 327 So.2d 903 (Fla. 3d DCA 1976). Nevertheless, where evidence tends in any way, even indirectly, to prove a defendant’s innocence, it is error to deny its admission. See Watts v. State, 354 So.2d 145 (Fla. 2d DCA 1978). The true test then is whether the tendered condensed version of the taped conversation was relevant to the defense presented. The defendants have failed to present to the trial court or to this court any reasonable theory upon which the admission of the condensed version of the tape would have helped prove their defense. The defendants did not deny having the conversations over the air. The disputed issue was whether the conversations were connected with the robbery with which they were charged. The contents of the condensed version had no relevancy to that issue.

It is suggested that markings or an erasure on the body of the frame holding the tape might have helped prove that the first tape was not made on the night in question. Insofar as this speculative possibility is concerned, we find no error in the trial court’s ruling. The alleged error complained of is not a limitation upon examination or cross-examination, but rather the failure to admit physical evidence.

The defendants’ fourth point contends that they were entitled to a judgment of acquittal pursuant tq their motion for a new trial because of the insufficiency of the evidence against them. We hold the evidence to be sufficient. It placed the defendants at the scene of the crime and the taped conversation tied them firmly to the crime as its perpetrators. The fourth point does not present error. See Lynch v. State, 293 So.2d 44, 45 (Fla.1974).

The defendants’ fifth point deserves a more detailed consideration. The defendants claim that they were deprived of the right of cross-examination and the introduction of evidence to show that one of the State’s witnesses, Officer Hayes, was hostile to them. Defense counsel was allowed to develop his theory that Hayes was prejudiced against Chandler and Granger because they had once made a complaint concerning Hayes to their shift officer. Also, during the presentation of the defendants’ case, Officer Wilson was precluded from going further into the matter. We hold that the defendants were allowed sufficient latitude both in their cross-examination and direct examination to present the matter for full consideration by the jury. It may well be that defendants would have liked to give the matter greater prominence but the trial court’s ruling was well within the range of the discretion granted to it by the holding of the Supreme Court of Florida in Eldridge v. State, 27 Fla. 162, 9 So. 448 (1891). See also Welch v. State, 342 So.2d 1070 (Fla. 3d DCA 1977); Dabney v. Yapa, 187 So.2d 381 (Fla. 3d DCA 1966); and H. I. Holding Company v. Dade County, 129 So.2d 693 (Fla. 3d DCA 1961). And cf. Irvin v. State, 66 So.2d 288, 294-295 (Fla.1953).

The sixth point claims error because there was no presentence investigation. See Florida Rule of Criminal Procedure 3.710. We hold that this rule is not applicable where the defendant specifically waives the investigation. See Rinaldi v. State, 343 So.2d 94 (Fla. 3d DCA 1977); and Johns v. State, 330 So.2d 526 (Fla. 1st DCA 1976). The defendants’ suggestion that the waiver was “forced” is without foundation on this record.

Having considered each point presented and finding no reversible error, the judgments and sentences are affirmed.

Affirmed.

      . Count I — Conspiracy to Commit a Felony (a misdemeanor)
      Count II — Burglary (a felony)
      Count III— Grand Larceny (a felony)
      Count IV— Possession of Burglary Tools (a felony)

      . In an earlier sworn statement, Sion had testified that he told Chief Investigator Martin Dar-dis of the state attorney’s office that he had taped the conversation during the Memorial Day weekend.

      . Prior to trial, the defendants filed a motion seeking to suppress the tape recording because no intercept order had been obtained and because of defendants had a reasonable expectation of privacy in their walkie-talkie conversations. The motion was denied.

      . Each defendant was sentenced as follows:
      Count I — one year imprisonment in the county jail.
      Count II — five years imprisonment in the state penitentiary (to run from the date of the expiration of the sentence in Count I).
      Count III — one year imprisonment in the state penitentiary and four years probation (to run from the expiration of the sentence imposed in Count II).
      Count IV — five years probation (to run from the expiration of the sentence — and probation — imposed in Count III).

      . “Whether the trial court erred in denying defendants’ various motions to declare Experimental Canon 3A(7) unconstitutional in refusing to preclude television cameras from defendants’ trial, and in declining to sequester the trial jury, all contrary to defendants’ Sixth and Fourteenth Amendment rights to a fair and impartial trial and due process of law.”

      . “Whether the trial court erred in denying defendants’ motion to suppress the tape recorded oral conversation where that conversation was intercepted and recorded in violation of Chapter 934, Florida Statutes (197[7]).”

      . Appellants’ fifth point attempts to show a multiplicity of errors. It is as follows:
      “Whether the trial court erred in restricting defense counsel’s cross-examination of prosecution witnesses and in his direct examination of defense witnesses and exclusion of certain defense exhibits thereby precluding any meaningful confrontation of the evidence presented by the prosecution as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 16, of the Constitution of the State of Florida.”
      We confine ourselves to the point as argued in the brief.

      . On cross-examination, Officer Hayes acknowledged that the defendant Chandler and Officer Wilson once complained that Hayes was taking coffee breaks and that Chandler, Wilson, and Hayes discussed the matter in a police car. Officer Hayes testified that he did not remember even the gist of the conversation. Officer Wilson was called as a witness by the defendant and after a lengthy discussion outside the jury’s presence, the trial court did not permit defense counsel to inquire into the details of this informal complaint.

      . ******
      “It is competent to show as a fact that a witness is hostile to the party against whom he testifies, and the jury can consider this hostility in estimating his testimony; but an inquiry into the conduct and acts of parties producing the hostility raises another and collateral issue, which should not be permitted to be gone into by the trial judge, otherwise there would be no limit to the investigation of any cause.” 9 So. at 452.


source: Caselaw Access Project

author: ANSTEAD, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Carl AURILIO, Eleanore Cinquina, Alfred Campagnuolo, and Joseph Di Pietro, Appellees.
    No. 77-36.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1978.
    Rehearing Denied Jan. 31, 1979.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, Larry S. Weaver and Marc E. Kirk, Asst. Public Defenders, West Palm Beach, for appellee Joseph Di Pietro.
    Robert S. McCain of McCain & Saccocio, Fort Lauderdale, for appellee Alfred Cam-pagnuolo.
    Robert L. Saylor of Saylor & Ingalsbe, North Palm Beach, for appellee Eleanore Cinquina.
   ANSTEAD, Judge.

This is an appeal challenging an order suppressing evidence obtained from wiretaps on various telephones used by the ap-pellees.

By successive applications, authorizations to intercept the communications of the ap-pellees, starting with Joseph Di Pietro, were secured over a period running from May 12,1975 to June 25,1975. Subsequently, appellees were charged in several counts with bookmaking and maintaining a gambling house. The appellees then filed motions to suppress which were granted in an order that found:

1. The electronic surveillance placed on the telephone line of-Joseph Di Pietro was maintained beyond the time that the authorized objective was reached by the State of Florida.
2. Several of the reports required to be filed by Section 934.09(6), Florida Statutes, were not filed by the State of Florida.
3. Each of the applications submitted to the Chief Justice of the Florida Supreme Court contained sufficient facts to establish probable cause that the offenses stated were being or were about to be committed by the individuals named and that the telephone lines named were being used to commit the offenses. However, the applications do not contain a full and complete statement of the facts concerning all previous applications involving the persons or telephone lines specified in the applications that were known to the persons making the applications.
4. Subsequent applications for authority to intercept failed to identify Defendants that had been previously intercepted as persons whose communications were going to be intercepted by such subsequent authorization. The agents of the State of Florida knew that the Defendants previously intercepted would be intercepted by the electronic surveillance resulting from the new authorizations.
5. The maximum punishment for conviction of bookmaking in the State of Florida is one year. Authorization for electronic surveillance of telephone lines is limited by Federal law to investigation of. crimes punishable by imprisonment for more than one year.

The state contends that the trial court either erred in its findings set out above, or erred in concluding that suppression was necessary as a result of such findings.

Wiretaps are authorized in Florida by Chapter 934, Florida Statutes (1975). This statute contains detailed provisions relating to the contents of applications for wiretaps, standards for issuance of wiretap authorizations, conduct of the taps, use of evidence derived from the taps, and grounds for suppression of wiretap evidence. The Florida Supreme Court has held that the statute is an exception to the federal and state constitutional right to privacy and must be strictly construed and narrowly limited in its application by the specific provisions set out by the legislature. In Re Grand Jury Investigation, 287 So.2d 43 (Fla.1973). Indeed, the statute itself recites the legislature’s findings of the need to protect the right of privacy while at the same time allowing necessary wiretaps as an aid to law enforcement. In addition, it must be noted that federal law has preempted the field of wiretaps, and any state law regulating the interception of wire communications must provide safeguards at least as stringent as those set out in the federal statute. State v. McGillicuddy, 342 So.2d 567 (Fla. 2d DCA 1977). Chapter 934 is, in fact, almost identical to its federal counterpart, Wire Interception and Interception of Oral Communications, 18 U.S.C.A. §§ 2510-2520 (1970).

With regard to the first finding concerning the Di Pietro tap the state contends that the tap was not maintained beyond the time the authorized objective was realized and further maintains that even if it was, only suppression of evidence obtained after reaching the objective would be required. The authorization order for the Di Pietro tap authorized the interception of wire and oral communications between Di Pietro and others

. consisting of the taking or receiving of bets or wagers upon the results of trials, or contests of skill, speed, power or endurance of man, beast, fowl or motor vehicle.

The only limitation as to time provided:

The period of time under which interception is authorized is not to exceed 30 (thirty) days from the date of this ORDER, and said interception pursuant to this ORDER shall not automatically terminate when the above described communications have first been obtained, but such interception shall be terminated upon attainment of the authorized objectives, or in any event 30 (thirty) days.

The application alleged the existence of a conspiracy to violate the Florida laws relating to bookmaking and gambling in an organized manner. The purpose of the wiretap, as stated in the application, was to determine the

existence of these unknown persons who are part of this conspiracy, and to obtain additional evidence against JOSEPH PATRICK DI PIETRO a/k/a PAT.

The Di Pietro tap commenced on May 12 and terminated on May 25. Appellee, Di Pietro, contends that the state knew the identity of the conspirators involved with Di Pietro even before the tap was started and in any case learned all of their identities by May 17. There was evidence that the applicant for the wiretaps knew the names of all of the appellees in connection with previous gambling investigations. However, there is no evidence that the applicant had already secured evidence that these individuals and Di Pietro were co-conspirators in an illegal gambling operation.

The Di Pietro tap was authorized for thirty days. It was terminated after thirteen days. No “authorized objectives” were actually set out in the order, and we do not believe the authorization was violated even if restricted to the objectives set out in the application. The applicant testified that he terminated the Di Pietro tap after the information he obtained became “redundant”, since the same people were detected placing calls to or from the Di Pietro telephone. We can see no violation of the terms of the authorization order. In addition, suppression of all wiretap evidence under circumstances where the tap is continued beyond the authorized objective is only mandated where the procedural requirements to minimize interception are blatantly ignored. Rodriguez v. State, 297 So.2d 15 (Fla.1974). The trial court specifically found that the police official involved herein acted in good faith. There is no evidence or finding that the official blatantly ignored the requirements in the authorization order for terminating the taps and hence minimizing the interception of Di Pietro’s line.

Similarly, there is no finding or evidence that the requirement for oral reports contained in the authorization order was “blatantly ignored” thereby mandating total suppression of all the wiretaps. Rodriguez, supra. It would appear that the provision was made for periodic reporting in Chapter 934 in order to aid the authorizing court in determining whether or not interceptions are being made in accordance with the authorization order and whether or not the intercept is being minimized. The statute does not make the reports mandatory, and we believe that failure to comply with such reporting requirements will not mandate suppression absent a showing of express prejudice by the appellees. U. S. v. Canon, 404 F.Supp. 841 (N.D.Ala.1975). No such showing was made here. In addition, the agent involved testified that he did make the required reports and there is no evidence in the record to the contrary. All of the applications in this case were made to the same judge and in each case information as to the prior wiretap was supplied. Hence, we cannot find, and appellees have not directed our attention to, any record support for the finding that the reports were not made in accordance with the authorizing judge’s instructions.

The trial court’s findings Nos. 3 and 4, supra, present more difficult questions. The trial court found that the applications did not contain a complete statement as to previous wiretap applications involving the persons whose communications were going to be intercepted or the identity of all such persons. This information is specifically required to be set forth in the application by Sections 934.09(l)(b) and (l)(e), The state does not challenge the correctness of the factual finding of non-compliance by the trial court, but rather argues that the failure to include this information- does not require suppression.

Neither side has cited any Florida decisions on this point and our research likewise fails to disclose any state decisions. However, the federal decisions appear to support the state’s position. U. S. v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977); U. S. v. Abramson, 553 F.2d 1164 (8th Cir. 1977). Donovan held that the failure to name all persons known to the applicant, whose communications might be intercepted on a requested tap, did not require suppression, since the naming requirement was not one of the statutory prerequisites which must be established for a judge to issue a wiretap authorization. Likewise, the Eighth Circuit in Abramson found that the failure to disclose in an application the fact that a previous wiretap had been suppressed did not warrant suppression of the subsequent tap. The Donovan court explained its reasoning:

As to § 2518(l)(b)(iv), the issue is whether the identification in an intercept application of all those likely to be overheard in incriminating conversations plays a “substantive role” with respect to judicial authorization of intercept orders and consequently imposes a limitation on the use of intercept procedures. The statute provides that the issuing judge may approve an intercept application if he determines that normal investigative techniques have failed or are unlikely to succeed and there is probable cause to believe that: (i) an individual is engaged in criminal activity, (ii) particular communications concerning the offense will be obtained through interception; and (iii) the target facilities are being used in connection with the specified criminal activity. That determination is based on the “full and complete statement” of relevant facts supplied by law enforcement authorities. If, after evaluating the statutorily enumerated factors in light of the information contained in the application, the judge concludes that the wiretap order should issue, the failure to identify additional persons who are likely to be overheard engaging in incriminating conversations could hardly invalidate an otherwise lawful judicial authorization. The intercept order may issue only if the issuing judge determines that the statutory factors are present, and the failure to name additional targets in no way detracts from the sufficiency of those factors.

As we have previously noted, Chapter 934 contains virtually the same provisions as the federal statute, so the Donovan and Abramson decisions are certainly persuasive. Three justices dissented in Donovan. The reasoning of a portion of the dissent seems especially applicable here:

The Court’s reasoning is doubly flawed. First, a judge is not required to issue a warrant if the prerequisites of § 2518(3) are satisfied; he may do so. Once he determines that the § 2518(3) requirements have been met, he still must decide whether the invasion of privacy by the proposed wiretap is justified under the circumstances. Second, what is at issue here is more than a simple list of names. Section 2518(l)(e) requires that the Government disclose to the court the history of all prior applications to intercept the communications of anyone named in a warrant application. A history of recent applications would at the least cause a judge to consider whether the application before him was an attempt to circumvent the restrictive rulings of another judge or to continue an unjustified invasion of privacy. The decision whether to issue the warrant would certainly be affected by such consideration. 97 S.Ct. at 678.

We have similar problems agreeing with the majority in Donovan. First, to agree, we must hold that the failure to comply with two important statutory requirements does not affect the validity of a wiretap application and an authorization issued pursuant thereto. Secondly, we cannot help but feel that a judge’s decision to issue a wiretap authorization would be seriously affected by the disclosure of the details of previous wiretap applications. In other words, a judge may well deny an application knowing previous wiretaps have failed or that past applications have been denied or knowing other similar pertinent information. Thus, while we may agree that the failure to disclose the names of all potential persons to be intercepted may not play a “substantive role” in the authorization process, we cannot reach the same conclusion with respect to the failure to disclose information about prior wiretaps. Accordingly, we feel the trial judge was correct in granting the motions to suppress on grounds three and four.

The final ground for suppression was that the wiretap authorizations involved offenses outside those provided for under federal and state law. Section 934.07 limits wiretap authorizations to investigations of:

. murder, kidnapping, gambling (when the same is of an organized nature or carried on as a conspiracy in violation of the laws of the state), robbery, burglary, grand larceny, prostitution, criminal usury, abortion, bribery, extortion, dealing in narcotic drugs or other dangerous drugs, or any conspiracy to commit any violation of the laws of this state relating to the crimes specifically enumerated above.

This statute must be read in conjunction with the federal wiretap statute, 18 U.S.C. § 2516(2), which in part provides that authorization may be obtained in a situation

when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses. (Emphasis supplied) 18 U.S.C. § 2516(2).

Although the limiting phrase is ambiguous as to the crimes to which it refers, we feel it was the intent of Congress to permit wiretaps as to certain specifically enumerated offenses plus other offenses, not specifically enumerated but which are punishable by imprisonment for more than one year. Contra, People v. Amsden, 82 Misc.2d 91, 368 N.Y.S.2d 433 (1975). Appellant contends that the application alleged an investigation of a gambling offense of an organized nature which was carried out as a conspiracy as required by Section 934.07. Section 934.07 has no requirement that the offense involved be punishable by imprisonment for more than one year, and we do not believe the federal statute requires such a provision. We believe, from a review of the sworn application, that there was sufficient preliminary information furnished to warrant an intercept authorization to investí-gate suspected gambling offenses as designated by Section 934.07 and as authorized by the federal statute.

Accordingly, since we find the trial court was correct in suppressing the wiretap evidence under findings Nos. 3 and 4, supra, the order of suppression is affirmed.

DAUKSCH and MOORE, JJ., concur.


author: PER CURIAM.

text:
    William Warren McCRARY, Appellant, v. August L. BOBENHAUSEN, Appellee.
    No. JJ-221.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1978.
    Rehearing Denied Jan. 31, 1979.
    Anthony F. Marinucci, Jacksonville, for appellant.
    David C. Goodman, Donald W. Matthews, Jacksonville, for appellee.
   PER CURIAM.

Appellant McCrary purchased, on January 28, 1976, a one-half interest in an income producing property from Charles Boucher and Teresa Boucher, his wife. The warranty deed was recorded on January 29, 1976. At the time of that transaction a law suit was pending by appellee Bobenhausen against the Bouchers. McCrary is not in a.T'y manner related to the Bouchers but is a close social acquaintance and was aware of the pending law suit. On April 29, 1976 Bobenhausen recorded a final judgment in the amount of $80,000.00 against the Bouch-ers. He then filed suit in Circuit Court seeking to set aside the warranty deed from the Bouchers to McCrary, relying upon the fraudulent conveyance statute, F.S. 726.01. Bobenhausen then moved for a summary judgment which was granted, that judgment being the subject of this appeal. There is evidence in the record, by way of affidavit, reflecting that McCrary was a bona fide purchaser for value, having paid a good and valuable consideration for the one-half interest in the property. Not every conveyance of property by one against whom a suit is pending is deemed fraudulent. As was stated in Headley et al. v. Pelham, 366 So.2d 60 (Fla. 1st DCA 1978):

“* * * The burden is upon one alleging fraud to prove it, the presumption being against the existence of fraud. Scott v. Dansby, 334 So.2d 331 (Fla. 1 DCA 1976). Such proof must be by clear and convincing evidence. Middleton v. Plantation Homes, 71 So.2d 503 (Fla. 1954). Whether fraud is present in a particular transaction is to be determined by the particular facts surrounding the conveyance. Stelle v. Dennis, 104 Fla. 384, 140 So. 194 (1932). * * *”

Appellee relies upon Jackson v. Citizens’ Bank & Trust Co., 53 Fla. 265, 44 So. 516 (1907), Whetstone v. Coslick, 117 Fla. 203, 157 So. 666 (1934), and Money v. Powell, 139 So.2d 702 (Fla. 2nd DCA 1962). Although the principles of law announced in those cases may well lend comfort to appellee were we here considering an appeal from a final judgment after trial, there is nothing in those cases to support a summary judgment entered on conflicting material evidence. The principles applicable to entry of summary judgments has been heretofore repeatedly announced by this court and no useful purpose will be accomplished by repetition here. (See, for example, Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA 1975).)

We hold that the summary judgment here appealed was prematurely and improvidently entered.

REVERSED AND REMANDED.

McCORD, C. J., and BOYER, J., concur.

MILLS, J., dissents.


author: DAUKSCH, Judge.

text:
    David VAN NOTE, Appellant, v. STATE of Florida, Appellee.
    No. 77-1738.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.
    Rehearing Denied Feb. 7, 1979.

      Kerry J. Nahoom, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and John C. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a judgment and sentence in a burglary and sexual battery case. We reverse and remand for a new trial.

During the trial judge’s preliminary remarks to the jury venire he said:

We are here to try a case. We are here to get a verdict in the trial of this case as to each charge. It takes a unanimous verdict from all six people that the defendant is guilty before he can be found guilty or that the Defendant is innocent before he can be found innocent as to each charge.
We don’t want a hung jury. It is possible to have a hung jury. It is conceivable you can’t reach a verdict, but we are not looking for that. We are looking for a verdict as to each charge, of guilty or innocent.
Do you all understand there is a possibility of three verdicts? Guilty, not guilty or that you can’t reach a verdict at all, at which time a mistrial will be declared and we’ll have to try the case over with another jury. That’s the possibility we have with a hung jury.

This “instruction” to the jury was unnecessary, improper and wrong. The giving of this “Allen ” charge was error but we decline to reverse on this error alone because defense counsel failed to object to the judge’s statement.

For the reasons stated by Justice Alderman in Clark v. State, and State v. Bostic, 363 So.2d 331, (Fla.1978), we determine the same procedures should be followed in this type of error as there. Of course, we should hope this type of error will not occur again but we do note the same error has caused appellate concern from the same judicial circuit at least twice before. Flynn v. State, 351 So.2d 377 (Fla. 4th DCA 1977); Kozakoff v. State, 323 So.2d 28 (Fla. 4th DCA 1975).

Some other matters have come to our attention which, when coupled with the foregoing, cause us to reverse the conviction and remand the case for new trial. Firstly, it was brought out at trial that the accused made a statement to the police after his arrest. Even though demand was made by the defendant for discovery of any statements, the prosecutor failed to adequately advise the defendant of the alleged statements. Secondly, the trial judge erroneously refused to conduct a voluntariness hearing in regard to the alleged statements before he allowed their admission at trial. Before a retrial the State may reply adequately to the defendant’s demand for discovery and the court may hold a voluntariness hearing if properly requested. McDole v. State, 283 So.2d 553 (Fla.1973); Lavigne v. State, 349 So.2d 178 (Fla. 1 DCA 1977).

Next we turn to a matter of the most grave consequences and which smack of the same type of police misconduct, or worse, as was condemned by our Supreme Court in Martin v. State, 360 So.2d 396 (Fla.1978). We commend the assistant attorney general who, at oral argument here, candidly conceded the impossibility outlined below.

The court allowed introduction of some photographs of the appellant taken by the police. A full inquiry into these photographs and their origin should be made first by the prosecutor and then, if necessary, by the court. It was pointed out to us that the alleged victim could not have seen the photographs she said she saw and initialed at 5:50 A. M. It is very possible perjury and subornation of perjury were committed and that cannot go uncorrected. It is probable someone gave these photographs to the witness not at 5:50 A. M. but at a later time and she then placed her initials and the “5:50 A. M.” upon them and testified she put them there at 5:50 A. M. The photographs were taken much after the time endorsed upon them. An appellate court has the right, nay, the duty, “to reject ‘inherently incredible and improbable testimony or evidence’ ”, and to call for a correction of the matter.

REVERSED AND REMANDED.

ANSTEAD, J., and BASKIN, NATALIE, Associate Judge, concur.

      . Allen v. United States of America, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      . Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


text:
    In re ESTATE of Stanton GRIFFIS, Deceased.
    No. 77-1860.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.
    Chester Bedell of Bedell, Bedell, Dittmar & Zehmer, Jacksonville, and Coe & Broberg, Palm Beach, for appellant Elizabeth K. Griffis.
    Freeman W. Barner, Jr. of Cromwell & Remsen, Riviera Beach and Edwin O. Simon of Redfearn & Simon, Miami and I. Ronald Horowitz, New York City, for appellee Nixon Griffis, Executor of the Estate of Stanton Griffis.
   DAUKSCH, Judge.

This is an appeal from an order denying attorney’s fees to successful contestant in a will case.

The case of In re Estate of Griffis, 330 So.2d 797 (Fla. 4th DCA 1976) established the manner in which the various beneficiaries were to be treated by the will of the late Stanton Griffis. In order for the last will of Mr. Griffis to be finally decided it was necessary for appellant, Elizabeth K. Grif-fis, to file suit and undergo protracted trial and appellate litigation. As it turned out, Elizabeth was able to obtain a benefit to herself.

More importantly, though, the ultimate will of Stanton Griffis was determined and the estate was benefitted. The benefit is that the beneficiaries whom Stanton Griffis intended are the ones who receive their legacies and bequests. For this the appellant is entitled to an attorney’s fee. Section 733.106(3), Florida Statutes, (1975); In re Estate of McCune, 223 So.2d 787 (Fla. 4th DCA 1969). It is not the fact that the beneficiary who contested the probate was successful but that by that contest the final will of the decedent was established and his estate property divided and distributed. In re Estate of Whitehead, 287 So.2d 9 (Fla.1973); In re Wilmott’s Estate, 66 So.2d 465 (Fla.1953); Johnson v. Burleson, 61 So.2d 170 (Fla.1952). It should be noted in the Whitehead, supra, ease the unsuccessful contestant was properly awarded an attorney’s fee. See also In re Estate of Jones, 352 So.2d 1182 (Fla. 2d DCA 1977); In re Estate of Weinstein, 339 So.2d 700 (Fla. 3d DCA 1976); In re Estate of Barret, 137 So.2d 587 (Fla. 1st DCA 1962); In re Estate of Farris, 113 So.2d 721 (Fla. 3d DCA 1959).

Appellant also complains about the award of interest on her bequest. She says it should have been given to her from the date it became payable to her which under the common law was one year after the death of the testator. While we have no current statute regarding the payment of this type of interest we did have Section 731.22, Florida Statutes (1973), repealed by Ch. 74 — 106 & Ch. 75-220, Laws of Florida. It would be helpful if the legislature would establish some guidelines for persons concerned to follow. Here the trial judge awarded interest only from the date of the issuance of the mandate in In re Estate of Griffis, supra. ■ For this, we cannot find an abuse of discretion and hold that the award of interest on bequests is within the sound discretion of the court.

The order disallowing attorney’s fees is reversed and this cause remanded for the award of attorney’s fees in an amount to be set by the trial judge. The order awarding interest is affirmed.

REVERSED in part, AFFIRMED in part and REMANDED.

CROSS, J., and LEFFLER, KENNETH M., Associate Judge, concur.


author:
PER CURIAM.
      DAUKSCH, Judge,

text:
    In the Interest of John Karl HAWK and Jeffery Robert Hawk, minors.
    No. 77-1568.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.
    J. Leonard Fleet of Fleet & Packar, Hollywood, for appellant-mother.
    Robert N. Fryer, Jr. of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for ap-pellee-father.
   PER CURIAM.

Affirmed.

CROSS and ANSTEAD, JJ., concur.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent. At the time the trial court was petitioned and he refused to accept jurisdiction the new Uniform Child Custody Jurisdiction Act, Section. 61.1302-1348, Florida Statutes (1977) had not taken effect so the trial court had jurisdiction and should have assumed it to hear the case. The fact that the, new statute gave the trial court the authority to refuse jurisdiction sometime after he had refused, and that law is now in effect, does not condone the unauthorized refusal. Because the trial judge had authority to and should have assumed jurisdiction at the time he was petitioned I would remand this matter for him to hear the case. The majority here must feel that because the law has changed since the court entered its improper order then we should affirm that action. I disagree because if the trial court had assumed jurisdiction, as it properly should have, the new statute would not have divested him of jurisdiction.


author: ERVIN, Judge.

text:
    Walter J. SEWARD, Petitioner, v. DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, State of Florida, Respondent.
    No. II-64.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1978.
    Rehearing Denied Feb. 2, 1979.
    Edward S. Jaffry, of Horne, Rhodes, Jaf-fry, Stephens, Bryant, Horne & Chapman, Tallahassee, for petitioner.
    L. Keith Pafford, Tallahassee, for respondent.
   ERVIN, Judge.

Petitioner appeals from a declaratory statement issued by the Division of Retirement holding, inter alia, that Chapter 121 was applicable to a ’determination whether he remained totally and permanently disabled.

Petitioner was a law enforcement officer with the Dade County Sheriff’s Department and a member of the State and County Officers Employee Retirement System (SCOERS), created by Chapter 122, Fla. Stat. (1967), in December, 1968, when he was injured in a work-related accident. In March, 1970, he was injured in another work-related accident, an automobile crash.

On October 1, 1970, Chapter 121, Fla. Stat., the Florida Retirement System Act, which consolidated existing retirement systems (including Chapter 122), became effective. The Act provided that officers or employees of the state or its subdivisions employed after December 1, 1970, would not be eligible for membership in SCOERS (§ 121.011(2)(a), Fla.Stat. (1977)), that Chapters 122 and 238 were consolidated into Chapter 121 and that administration of those chapters was to be under Chapter 121. Section 121.011(2)(b). Section 121.011(3)(a) provided that rights of individuals, as petitioner, who were members of existing retirement systems, would not be impaired and their benefits under Chapters 122, 238 or 321 could not be .reduced, due to the enactment of Chapter 121, “except that if an eligible member of a retirement system . elects between April 15, 1971 and June 1, 1971, inclusive, to transfer to the Florida retirement system, he shall be transferred . . . and shall be subject to the provisions of the Florida retirement system . . . and at retirement have his benefits calculated in accordance with . . . s. 121.091.”

Petitioner transferred his membership in SCOERS to membership in the Florida Retirement System (FRS), effective December 1, 1970. In June, 1971, he applied for an “in line of duty” disability retirement as a result of. the March, 1970, automobile accident. He and his employer reached a workmen’s compensation “wash out” settlement in July, 1972, in which it was stipulated that the parties had been in dispute over the degree of petitioner’s permanent partial disability and wage earning loss. According to retirement system policy at that time, petitioner’s lump sum award was computed under § 122.34, Fla.Stat. (1977), of SCOERS; however, petitioner’s benefits under that section were incorrectly computed according to the totally disabled schedule, and petitioner was awarded 45% rather than 35% of his final compensation.

On January 5, 1976, the Division of Retirement notified petitioner that he was to be reexamined pursuant to the provisions of § 121.091(4)(e). After investigation, the Division concluded that petitioner was no longer totally and permanently disabled and notified him that future benefits would be terminated. At a deposition prior to termination of benefits, petitioner’s doctor testified that petitioner could perform supervisory work not involving lifting or vigorous activity. Moreover, it was shown that, since his retirement, petitioner had held four jobs in the security field and, at the time of the investigation, was chief of security at a Miami golf and racquet club.

Petitioner filed a petition for declaratory statement with the Division asking (1) whether Chapter 121 (FRS) or Chapter 122 (SCOERS) was applicable in evaluating his right to disability retirement benefits; (2) whether it was the petitioner’s or the Division’s burden of proof at a disability reexamination, and (3) depending upon which section was found to apply, under what circumstances would petitioner be considered no longer disabled. The Division issued a declaratory statement that petitioner’s reexamination was controlled by FRS and § 121.091(4); that petitioner had the burden of proof at a reexamination hearing under § 120.57(1); and that “no longer disabled” in § 121.091(4)(e) meant the FRS member was no longer prevented from rendering useful and efficient service as an officer or employee because of a medically determinable physical or mental impairment. The statement asserted that an individual whose benefits were improperly computed under § 122.34 of SCOERS could petition for a hearing under § 121.-23(2). Petitioner then filed this petition for review contesting each of the agency’s statements.

We agree with petitioner that his reexamination proceedings should be governed by § 122.34(11). The plain meaning of § 121.-011(3)(a) is that the only members of SCOERS whose benefits can be reduced or rights impaired because of Chapter 121 are those who transferred to the FRS between April 15, 1971, and June 1, 1971. Petitioner’s transfer to FRS was effective December 1, 1970.

Moreover,, the burden of proof at petitioner’s hearing is upon the state. The Division makes much of the fact that this case involves the termination of disability benefits and that in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Supreme Court held that social security disability recipients were not denied procedural due process because they had the burden of proof in termination of benefits hearings. However, Title 2 of the Social Security Act, 42 U.S.C. § 423(d)(5), was construed as placing a continuing burden of proof on disability beneficiaries. There is no similar provision in Ch. 122 which places the burden on SCOERS members. In Amico v. Division of Retirement, 352 So.2d 556 (Fla. 1st DCA 1977), this court stated unequivocally: “When . . . payment of disability retirement benefits begins, the burden of proof on the contested issue before the Commission is on the Division of Retirement.”

Finally, the petition for a declaratory statement asked under what circumstances petitioner may be considered no longer disabled according to the provisions (either of Ch. 121 or of Ch. 122) found applicable to the first question. Since we hold the Division’s finding, that Ch. 121 governs petitioner’s hearing, is erroneous, we do not discuss its other findings as to disability under Ch. 121.

As to petitioner’s question concerning under what circumstances, pursuant to Ch. 122, he may be considered no longer disabled, we leave that for resolution by the hearing officer.

The declaratory statement is REVERSED.

MILLS, Acting C. J., and MELVIN, J., concur.

      . Section 120.565, Fla.Stat. (1977), provides for declaratory statements by agencies concerning the applicability of any statute or of any of the agency’s rules or orders, and states also “disposition of [the] petitions shall be final agency action.”

      . Rule 22B — 4.07(1) provided:
      A member of an existing retirement system which provided for disability in line-of-duty benefits, who transferred to the Florida Retirement System and subsequently becomes disabled as a result of an illness or injury incurred in line of duty while he was a member of the existing retirement system, shall be eligible to receive whatever disability benefits he would have been eligible for under his existing retirement system had he not transferred to the Florida Retirement System.

      . Which provides that the director of the Division of Retirement “may require periodic reexaminations at the expense of the retirement fund . . . .”

      . That section provides that members who do not accept the Division’s determination after a reexamination are entitled to a hearing before the State Retirement Commission pursuant to § 120.57(1).

      . See discussion in Balino v. Dep’t. of Health & Rehabilitative Services, 348 So.2d 349, 351 at n. 2 (Fla. 1st DCA 1977). The section of the federal act discussed in Mathews, supra, stated: “An individual [may] not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require.” 42 U.S.C. § 423(d)(5).


author: PEARSON, Judge.

text:
    Clifford E. RICE, Appellant, v. INSURANCE & BONDS, INC., Appellee.
    Nos. 78-327, 78-328 and 78-429.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1979.
    Wicker, Smith, Blomquist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellant.
    Corlett, Merritt, Killian & Sikes and Gerald R. Rosser, Miami, for appellee.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   PEARSON, Judge.

The issue presented on these appeals is whether recovery upon an oral contract between the plaintiff, an insurance agent, and the defendant, an insurance agency, is barred by the statute of frauds. The three appeals present the same issue and were apparently taken out of an overabundance of caution.

The agreed statement of facts is that after jury verdict in favor of the plaintiff for $55,727.21, the trial court granted the defendant’s post-trial motion for directed verdict, and this appeal was taken by the plaintiff. The basis of the court’s ruling was that the oral contract was not enforceable because of the statute of frauds.

The facts were that the plaintiff, Clifford Rice, was a life insurance agent who decided to become a casualty insurance agent and, therefore, went to school and received his license. He talked with Mr. Paine of defendant agency, Insurance & Bonds, Inc., about becoming an agent and writing business in the Florida Keys. Paine and Rice subsequently entered into an agreement, which is the subject of this suit.

The agreement was that Rice would pay all of his own expenses, costs, social security, withholding taxes, etc. Paine would “show him the ropes” about writing and servicing casualty policies. Rice would service Paine’s policies in the Keys. With any policies Rice wrote through his own solicitation or through referral of Paine, the commission would be split fifty-fifty through the life of the policy and renewals. The policies Rice wrote belonged to him and after Rice and Paine ceased working together, Rice would still own these accounts and would receive the dailies, although they would continue to split the commissions fifty-fifty on renewals throughout the life of the policy.

This agreement worked well for three and one-half years, until Paine decided to fire Rice. Thereafter, Paine refused to turn over the dailies to Rice, and also refused to turn over Rice’s half of the commissions on renewals. This suit followed.

During trial, Paine testified about the agreement:

“Q. But then your testimony, on the other hand is that if he developed an account solely and only on his own, that was his account. He owned it. He had the right to take it with him; to transfer it to another agency; to transfer it to another company if the customer would permit. Is that right?
“A. [by Mr. Paine] Yes, providing he developed it with no help from any of my accounts or references, right, as I still have no objection to that. He can still have those accounts and he can have the records as they expire. I am paying him a commission on them until they expire.”

The testimony was that the policies written by an agent are referred to as a “book of business,” and have a saleable value. This “book of business” is frequently sold by agents wishing to move, retire, etc., and purchased by other agents wishing to expand their business. The testimony was to the effect that the normal purchase price of a “book of business” is one and one-half times the annual premium income.

Witness Allen Pither testified as an expert on the value of the “book of business” in this case. He testified that the key factor in determining its value is the type of policy involved, because some types, such as automobile policies, are less likely to be renewed with the same company, while other types, such as homeowners policies, have a very high rate of renewal. Accordingly, he broke the business down to the amount of commissions written for the various types of policies and he applied the renewal frequency to each type in order to get the expected value of commissions throughout the renewal life of the policies. From this, he computed the value of the “book ■ of business” and thereby calculated the fair value of the “book of business” in this instance to be $55,744. The amount of the verdict returned by the jury was $55,727.21.

There is no question of the existence of the contract or its terms. Plaintiff Rice, as appellant, urges that the court erred in holding that the statute of frauds was applicable to this contract because it is an executed contract and, therefore, exempt from the application of the statute by the holdings in Grossman v. Levy’s, 81 So.2d 752 (Fla.1955); McDowell v. Ritter, 153 Fla. 50, 13 So.2d 612 (1943); Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla.2d DCA 1975); and Miami Beach First National Bank v. Shalleck, 182 So.2d 649 (Fla.3d DCA 1966).

The main focus of defendant’s argument is that the plaintiff has admitted by evidence he introduced that the contract was a continuing one with portions of the contract to be performed after the termination of the relationship. In his proof of the terms of the contract, plaintiff offered into evidence a letter from Mr. Paine, the active member of the defendant agency, which included the language: “As I advised you, your accounts belong to you and we will pay commission on your accounts until they expire, so long as you service the account.”

The important distinction here is that plaintiff is not suing for commissions on accounts. His complaint claims damages for the defendant’s wrongful solicitation of business belonging to the plaintiff. These allegations, which the jury found to be true, amount not to an action for wrongful termination of the contract but to the misappropriation of an asset admittedly belonging to the plaintiff. Under these circumstances, the evidence that if the defendant had not terminated the relationship, there would have been additional duties on each party, does not constitute plaintiff’s action as one founded on an unenforceable contract.

In Tobin & Tobin Insurance Agency, Inc. v. Zeskind, 315 So.2d 518 (Fla.3d DCA 1975), the agency brought an action to recover commissions on an oral agreement to split commissions. The trial court held, and this court affirmed the holding, that the action to enforce the contract was barred by the statute of frauds. We think that holding does not bar recovery in the present case because this is not an action to recover commissions but to recover damages for property retained by the agency.

Does the fact that the oral arrangement between the parties contained the provision that the plaintiff owned his personally-produced accounts make an action to recover damages for the appropriation of the accounts an action on the contract? We hold that it does not, because the enforcement of the contract was not necessary in order for the jury to find that the plaintiff owned the accounts. The plaintiff introduced letters from the defendant which acknowledged plaintiff’s ownership of his accounts. Defendant properly argues that these letters are not a contract; they are, however, sufficient to prove ownership of the accounts.

We hold that the contract was executed with regard to the ownership of the accounts. As such, the plaintiff was entitled to the jury verdict. In Grossman v. Levy’s, 81 So.2d 752 (Fla.1955), the court held that a contract within the statute of frauds is not a nullity, and that because the statute pertains exclusively to the remedy, the contract may be the basis for proof in a lawsuit that does not seek its enforcement.

We have considered the argument of the defendant that the directed verdict can be supported by a finding that the damages proved were too speculative to amount to proper proof. We hold that this argument is untenable upon this record.

The judgment upon the directed verdict is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

      . The parties agree that the trial court applied Section 725.01, Florida Statutes (1977), which is:
      “No action shall be brought . . . upon any agreement . that is not to be performed within the space of 1 year from the making thereof, . . . unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized.”

      . Cf. the principle of law in Star Fruit Co. v. Eagle Lake Growers, Inc., 160 Fla. 130, 33 So.2d 858, 860 (1948):
      “ ‘The gist of a conversion has been declared to be not the acquisition .of the property of the wrongdoer, but the wrongful deprivation of a person of property to the possession of which he is entitled. A conversion consists of an act in derogation of the plaintiffs possessory rights, and any wrongful exercise or assumption of authority over another’s goods, depriving him of the possession, permanently or for an indefinite time, is a conversion.’ 53 Am.Jur., p. 822.”


author: BOYER, Acting Chief Judge.

text:
    Jodie ARMSTRONG and Catherine Armstrong, Appellants, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellee.
    No. FF-274.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1979.
    Robert G. Kerrigan, of Kerrigan & Es-tess, Pensacola, for appellants.
    Robert P. Gaines, of Beggs & Lane, Pensacola, for appellee.
   BOYER, Acting Chief Judge.

Appellants, who were plaintiffs in the trial court, here seek reversal of a summary final judgment entered in favor of the defendant there, appellee here.

In 1974 one Patricia Carroll complained to appellee Southern Bell that she was receiving harassing telephone calls. Florida Statute 365.16 proscribes the use of a telephone to annoy, abuse, threaten or harass any person at the called number. Subsection (4) of that statute provides that:

“All- telephone companies in this state shall cooperate with the law enforcement agencies of this state in using their facilities and personnel to detect and prevent violations of this statute.”

Mrs. Carroll suspected appellant Catherine Armstrong as being the source of the calls complained of. A device which records the number dialed was thereupon connected with the Armstrong telephone line for a period of one week. The device was attached to a terminal in the office of Southern Bell’s Pensacola Security Manager. Both the Security Manager and his secretary had access to the terminal in his office. Any one with a head set and a pair of alligator clips could have eavesdropped on the Armstrong line through the terminal in the security office, but there is no evidence in the record that such ever occurred.

Appellants filed a complaint and later an amended complaint alleging that on July 17,1974 employees of appellee directed that an illegal electronic surveillance device be placed upon their telephone line, thereby entitling them to a cause of action pursuant to Florida Statute 934.10. That statute provides in material part that:

“Any person whose wire or oral communication is intercepted, disclosed or used in violation of this chapter shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use, such communications * * ”

F.S. 934.03, Florida Statutes 1973, provides in material part:

“(1) Except as otherwise specifically provided in this chapter, any person who: (a) Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication; * * * shall be guilty of a felony * * * ”

F.S. 934.02(2), Florida Statutes 1973, defined oral communication to mean “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation”. The word “intercept” is defined to mean “the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device”. Webster defines aural as “of or pertaining to the ear or the sense of hearing”.

The record is clear sub judice that the device attached to appellants’ telephone lines did not itself have the capability of intercepting nor recording the contents of any oral communication. The device only recorded, by electrical impulses, telephone numbers called from the telephone to which attached. The device did not even indicate whether or not the called number responded. In other words, the device did not even indicate whether or not a communication ensued.

Although, as above mentioned, the device afforded a connection by which eavesdropping or recording equipment could have been attached no evidence was ever obtained that anyone ever actually made such a connection or that anyone actually ever listened to any conversation or communication or ever attempted so to do.

Upon such state of the record the learned trial judge granted a motion for summary judgment in favor of the defendant, appel-lee here, saying:

“The above cause came on for hearing upon defendant’s motion for summary judgment. A careful review of the depositions and exhibits on file reveals that a very thorough and determined effort on the part of plaintiffs has failed to develop or create an issue of fact to be submitted to the jury. The evidence is without dispute that defendant’s employees monitored plaintiffs’ line for approximately seven days but made no attempt to intercept oral communications. There was no violation of either the Federal or the State Statutes, and plaintiffs concede there is no cause of action for invasion of privacy under present law. Defendant has established that there is no genuine issue of fact or law, and it is, therefore “ORDERED AND ADJUDGED that defendant’s motion for summary judgment is hereby granted * * * ”.

The existence of a dispute as to matters not material to disposition of the case will not preclude entry of a summary judgment. Our careful examination of the entire record reveals no issue of any material fact. Appellants stress a variance between contradictory statements made by a material witness wherein he first stated that the device attached to appellants’ telephone lines was incapable of having a listening device or tape recorder attached to it but later stated that such device did indeed have such a capability, though denying that the capability was ever used. Although such statements were clearly contradictory they did not create an issue of material fact in the case sub judice because the question here is not whether or not the device was capable, either itself or via modification, of intercepting or recording oral communications but whether or not it in fact did so. In the latter respect the record stands un-contradicted that no oral communication was ever intercepted.

The trial court’s holding that the use of a device which merely records the numbers dialed from a telephone is not a violation of the statute is amply supported by case authority. Similar statutes have been construed in the same manner by courts of other jurisdictions. Indeed, the point seems to be so well settled that appellants do not even argue in their brief that the use of the device that merely records the number dialed is contrary to the provisions of the statute.

Essentially it is appellants' position, apart from their argument that the contradictory statements as to nonmaterial facts should have prevented entry of summary judgment, that since they are without ■ knowledge as to whether or not in fact Chapter 934 Florida Statutes was violated by appel-lee and since knowledge as to those facts is reposed only in the minds of appellee’s employees, summary judgment was improper and the credibility of the Southern Bell employees who stated that no oral communication was ever intercepted should be submitted to a jury. We are acquainted with no such rule of law.

We find that the recitals by the learned trial judge in the summary final judgment here appealed are amply supported by the record and that the record reveals nothing to the contrary. We accordingly hold that the summary final judgment here appealed should be and is

AFFIRMED.

ERVIN and MILLS, JJ., concur.

      . The statute also prohibits the use of a tele- ' phone for any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy or indecent, but those proscriptions are not here material.

      . Regarding the concession that there has been no invasion of privacy under present law, no constitutional attack has been presented directed toward the relevant statutes.

      . See Young v. Gibbs Sanitation Service, Inc., 328 So.2d 857, (Fla. 1st DCA 1976), cert. denied, 342 So.2d 1105 (Fla.1977).

        . Bixler v. Hiiie, 80 Wash.2d 668, 497 P.2d 594 (Wash.1972); People v. Schneider, 45 Misc.2d 680, 257 N.Y.S.2d 876 (Sup.Ct.1965); United States v. Giordano, 416 U.S. 505, 553, 94 S.Ct. 1820, 1844, 40 L.Ed.2d 341 (1974) and United States v. Southwestern Bell Telephone Company, 8 Cir., 546 F.2d 243 (1976). See also United States v. New York Telephone Company, 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376.


author: SMITH, Judge. BOYER, Judge, PER CURIAM. BOYER, Judge,

text:
    MASSEY-FERGUSON, INC., Appellant, v. SANTA ROSA TRACTOR COMPANY, INC., a Florida corporation, Appellee.
    No. EE-384.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1979.
    Rehearing Denied Jan. 29, 1979.

      Daniel C. Perri of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.
    Louis K. Rosenbloum and S. Jack Car-routh of Levin, Warfield, Middlebrooks, Ma-bie, Rosenbloum & Magie, Pensacola, for appellee.
   SMITH, Judge.

Massey-Ferguson, Inc., appeals from a judgment of the Circuit Court of Santa Rosa County assessing $38,312 compensatory and $50,000 punitive damages in favor of Santa Rosa Tractor Co., Inc., against Massey-Ferguson for the alleged wrongful termination of Santa Rosa’s dealership contract in Massey-Ferguson tractors and parts. At the close of all evidence in a jury trial, the trial court directed a verdict for Santa Rosa, finding as a matter of law that Massey-Ferguson violated contract provisions requiring 90 days’ notice by Massey-Ferguson for termination without cause. The case was submitted to the jury on the issue of damages only.

Massey-Ferguson’s appeal questions the directed verdict, the amount of compensatory damages, the propriety of punitive damages, and trial court rulings which excluded defensive evidence offered by Massey-Ferguson. We hold that the trial court erred in excluding Massey-Ferguson’s offer in evidence of a letter signed and delivered to Massey-Ferguson by Vernie Barnes, Santa Rosa’s president and principal stockholder. The letter, dated April 4, 1972, stated:

the undersigned herein submit our intentions to terminate the relationship between the 2 companies within 30 days from the date of this notice.
It would be appreciated if we could settle our affairs at the earliest possible date.

Please govern yourself accordingly. Had the letter been admitted, it would have made a jury issue on the question of whether the contract was terminated by mutual consent, foreclosing a directed verdict.

There is no contention by Santa Rosa that the letter was irrelevant. Indeed, Santa Rosa’s counsel stated, in arguing for its exclusion, that “this document would seriously jeopardize our case.” Santa Rosa’s complaint was that Massey-Ferguson came unannounced to Santa Rosa’s place of business in March and April, 1972, declared the business closed, and boxed and removed Santa Rosa’s inventory of parts and equipment. The letter tended to support one of Massey-Ferguson’s theories of defense, that the dealership agreement was terminated by mutual consent. Although the jury might have considered the letter inconsequential, because many parts had already been boxed for shipment on April 4, the jury could have taken a different view: that the letter consented to the termination and to Massey-Ferguson’s removal of equipment pledged to it and of parts which Mas.sey-Ferguson was contractually obliged to repurchase upon termination of the dealership.

The letter was not excluded because it was thought to be irrelevant. It was excluded on the ground that it tended to prove matters not pleaded by Massey-Ferguson. Massey-Ferguson’s answer simply denied Santa Rosa’s complaint that Massey-Ferguson wrongfully terminated the dealership and took away the parts and equipment. Massey-Ferguson did not plead either that Santa Rosa had previously breached the agreement — an omission fatal to Massey-Ferguson’s attempt to show cause for ending the dealership without notice or consent — or that the dealership agreement was terminated by mutual consent of the parties or by notice from Santa Rosa to Massey-Ferguson. Massey-Ferguson’s failure to plead its intended defenses was itself the product of counsel’s prior oversight in failing to plead responsively until just before trial. Massey-Ferguson’s long-standing motion to dismiss the complaint, for failure to attach the contract had immediately been satisfied by the filing of the contract; but the motion to dismiss was never brought for hearing or superseded by an answer. A few days before trial, a judge other than the trial judge denied Santa Rosa’s motion for default on the condition that Massey-Ferguson not attempt to raise affirmative defenses that might delay the scheduled trial.

In these circumstances, the trial court cannot be faulted for excluding Massey-Ferguson’s proffered evidence that Santa Rosa previously breached the contract by selling tractors out of trust. Massey-Ferguson correctly argues here, as did the defendant in Babe, Inc. v. Baby's Formula Service, Inc., 165 So.2d 795, 798 (Fla. 3d DCA 1964), that “in order for the plaintiff to maintain its contract action, it must first establish performance on its part of the contractual obligations thereby imposed.” Plaintiff’s performance is a “condition precedent” to his action for defendant’s breach, Babe at 798 and cases cited in n. 4, which should be alleged and proved prima facie. See Trawick, Florida Practice and Procedure, § 617 at p. 76 (1978 ed.); Carson, Florida Common Law Pleading Practice and Procedure, p. 76 (rev. ed. 1940); Cran-dall, Florida Common Law Practice, § 65 (1928). The deficiency of Santa Rosa’s complaint in failing to allege its performance was not urged by motion to dismiss. Nevertheless, whether plaintiff’s prior breach of the contract sued on is regarded as an affirmative defense or, more properly, as a denial with particularity of a general allegation that conditions precedent to the action have been performed or have occurred, Fla.R.Civ.P. 1.120(c), Massey-Ferguson’s responsive pleading contained no hint that Massey-Ferguson would assert that Santa Rosa materially and previously breached the contract. The trial judge aptly stated:

The purpose of pleadings is to make issues. The purpose of issues is for people to know what they’ve got to meet and get ready to meet it.

Thus, though a material omission from Santa Rosa’s complaint contributed to the pleading debacle confronting the trial judge, and though Santa Rosa’s counsel knew through discovery that Massey-Ferguson acted because it thought Santa Rosa breached the contract, the trial court correctly held that craftsmanship in pleadings is yet an essential part of litigation and that evidence of Santa Rosa’s asserted breach should be excluded.

The exclusion of Santa Rosa’s April 4,1972 letter is another matter. Of course, Massey-Ferguson should have pleaded as an “avoidance or affirmative defense” that its contractual obligations were discharged by Santa Rosa’s consent to or notice of termination. Fla.R.Civ.P. 1.110(d). Yet “[a]n affirmative defense that is waived by failure to plead it can be resurrected by trying it with consent of the parties . . . .” Trawick, supra, § 14-6 at p. 210. Fla.R. Civ.P. 1.190(b) provides:

“If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended to conform with the evidence and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice him in maintaining his action or defense upon the merits.”

Santa Rosa’s April 4, 1972, letter to Massey-Ferguson was admissible because its efficacy and the circumstances of its execution and delivery were first placed in issue at trial by Santa Rosa, during the direct examination of its president and principal stockholder, Mr. Barnes. Santa Rosa’s counsel asked his client:

Q Did Mr. Bristo [of Massey-Ferguson] ever serve any kind of letter on you or give you any kind of written notice whatsoever that he was closing you down — from Massey-Ferguson Tractor Company?
A Yes, sir, he did.
Q What was that?
A He gave me a letter.
Q What letter?
A That he was going to close me down. Q Was it from Massey-Ferguson?
A I couldn’t tell you.
Q Mr. Barnes, I know you may not remember things as well — did you sign a letter later on, yourself, after he’d shut you down and packed up your stuff?
A Yes, sir.
Q Is that the letter you are referring to? A Yes, sir, that’s it.
Q That’s a letter you signed.
A Yes, sir.
* * * * * *
Q I hand you at this time what purports to be a letter dated April 4, 1972, addressed to Regional Manager, Massey-Ferguson, Inc., 5193 Peachtree Industrial Boulevard, Chamblee, Georgia 30341, and it has a place for your signature. I’ll ask you to look at that letter and see if you can identify it.
A No, sir.
Q You can’t identify it?
A No, sir, I can’t.
Q Did Mr. Bristo, the representative from Massey-Ferguson, bring you a letter and ask you to sign it?
A Yes, sir.
Q When did he bring it to you and ask you to sign it?
A It was about the last week of March — somewhere in there.
Q How long was it before he moved out your equipment?
A He done had the majority of it boxed up.
Q When he asked you to sign that letter, did he move your equipment out right after that?
A Yes, sir.
Q Within a day or two?
A Five to seven days. Something like that.
Q Five to seven days after he asked you to sign the letter?
A Yes, sir.
Q When he asked you to sign the letter had he already packed up your stuff and told you you were out of business?
A Yes, sir.

On cross-examination, Massey-Ferguson’s counsel interrogated Mr. Barnes as follows:

Q Mr. Barnes, did you sign a letter dated April 4,1972, which terminates the contract with Massey-Ferguson?
A Yes, sir.
Q I show you — is this the particular letter?
A That looks like my signature, yes, sir.
Q Do you know who prepared this letter?
A Mr. Calvin Wilson’s office.
Q Who is he?
A He was our attorney at the time.
* * * * * *
Q Did you consult with Mr. Calvin Wilson, your attorney?
A My attorney called me and asked me to sign that letter — that it would save my credit and give me a chance to settle with .
Q Would you please start over. I don’t think anybody heard you that time— I’m sorry.
A It would give me a chance to settle with Massey-Ferguson, and to save my credit.
Q Why was your credit in jeopardy?
A I don’t think it was.

On redirect examination, Santa Rosa’s counsel interrogated Mr. Barnes as follows:

Q Mr. Barnes, you said that your attorney wrote a letter that you signed, is that correct?
A Yes, sir.
Q What was the letter about?
A About closing it down.
Q About closing the Santa Rosa Tractor Company down?
A That’s right.
Q When was the first knowledge you had about this letter? Was it before or after Mr. Bristo came and closed you down and packed your equipment?
A It was after he had it packed.

It is plain from the interrogation that Santa Rosa’s counsel was surprised by his client’s initial confusion and his unanticipated answer to a question concerning a letter from Massey-Ferguson. Yet it seems plain that the clarifying questions caused the letter to be identified and authenticated and that Santa Rosa’s counsel elicited testimony concerning its purport and the circumstances of its execution, and so opened the door that had theretofore been shut tight against any effort by Massey-Ferguson to defend itself. Tactical inadvertence had initially slammed the door against Massey-Ferguson; and tactical inadvertence opened it a crack. The trial court pressed the consequences of Massey-Ferguson’s pleading lapse too far by denying Massey-Ferguson the benefit of the exhibit after Santa Rosa exploited the letter for its own purposes during Mr. Barnes’ direct examination. The unpleaded affirmative defense of mutual termination was thus tried by consent; the April 4, 1972, letter should have been admitted; and a jury issue was thereby presented, foreclosing a directed verdict on liability for Santa Rosa.

The proffered exhibit was admissible for yet another reason. Santa Rosa sought and received an award of punitive damages, assessed by the jury at $50,000. Punitive damages are not awardable on contract claims absent the defendant’s commission of “some intentional wrong, insult, abuse or gross negligence which amounts to an independent tort.” Although Santa Rosa’s complaint alleged no independent tort, its brief characterizes the tort as “trespass”, referring to its allegation that Massey-Ferguson “willfully and maliciously came upon plaintiff’s place of business without authority” and removed plaintiff’s parts and equipment. In the light of Massey-Ferguson’s contractual right to enter Santa Rosa’s premises, its contractual obligation to repurchase Santa Rosa’s parts and equipment upon termination, and Santa Rosa’s allegation that Massey-Ferguson refused to repurchase, the claim of tortious conduct, justifying punitive damages, is slim indeed. But if the claim was sufficient in law, it drew into question, in a highly generalized and imprecise way, the matter of Massey-Ferguson’s bona fides. In such circumstances, any evidence offered by the accused defendant, tending to justify or explain its allegedly malicious conduct, is admissible. Santa Rosa’s letter of April 4, 1972, signed by its president and delivered on the advice of Santa Rosa’s own lawyer, was such evidence; it tended to show a plausible reason for Massey-Ferguson’s conduct thereafter. Given a lawsuit which counsel presented in an undisciplined state, the trial judge’s effort to impose order by evidentiary rulings was understandable and commendable; but he erred in excluding from evidence the one document that the jury might have considered an amelioration of Massey-Ferguson’s allegedly outrageous conduct.

On two grounds, therefore, the Santa Rosa letter was admissible and its exclusion was prejudicial. The case is REMANDED for new trial after a complete overhaul of the pleadings.

REVERSED.

McCORD, C. J., concurs.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

In my view there was no judicial error. Those matters which involved conflicting evidence were properly resolved by the jury. I would affirm.

ON PETITION FOR REHEARING

PER CURIAM.

The Petition for Rehearing is denied.

McCORD, C. J. and SMITH, J., concur.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

The majority reversed on pleading and evidentiary issues. As I indicated in my brief dissent, in my view there was no judicial error. Appellee, Santa Rosa Tractor Company, Inc., has now filed a Motion for Rehearing, which I would grant. I yet adhere to my original view that no error has been demonstrated. However, in any event, as pointed out in appellee’s Motion for Rehearing, the majority opinion grants relief far beyond that indicated even by the majority opinion. First, the majority remands “for new trial after a complete overhaul of the pleadings”. No party has requested an opportunity to “overhaul the pleadings”. Both parties were represented at, and prior to, trial by competent experienced attorneys. Even under our lax modern day procedures, the issues to be tried are still framed by the pleadings. I find no basis in the record, particularly in the absence of a motion or request, for repleading. Further, as pointed out in the Motion for Rehearing and, in my view, as demonstrated by the majority opinion itself, the exclusion of the letter discussed so thoroughly in the majority opinion could properly have affected only the award of punitive damages. Therefore there is no basis in the record for granting a complete new trial. At most, appellant is only entitled (because of the exclusion of the mentioned letter) to have set aside the award of punitive damages. However, even as to punitive damages, the record reveals (as does the majority opinion) that the thrust and contents of the excluded letter were before the jury in question and answer form, thereby rendering the letter itself cumulative. Accordingly, even if the learned trial judge did err in excluding the letter (with which conclusion I do not agree) that exclusion was harmless error. (See Coral Plaza Corp. v. Hersman, 220 So.2d 672 (Fla. 3rd DCA 1969) cert. denied 229 So.2d 867 and Delano Hotel, Inc. v. Gold, 126 So.2d 301 (Fla. 3rd DCA 1961). See also Petroleum Carrier Corporation v. Gates, 330 So.2d 751 (Fla. 1st DCA 1976).)

I would grant appellee’s Petition for Rehearing, recede from our prior holding, and affirm the final judgment here appealed.

      . Santa Rosa’s counsel stated in argument at trial that Mr. Bristo, Massey-Ferguson’s principal agent, testified in his deposition “that the reason he closed Mr. Barnes down — the Santa Rosa Tractor Company down — was because he sold the Wells tractor and the Perez tractor out of trust. That would have been a splendid affirmative defense for counsel if he had decided to allege it. He did not, and he cannot now come into court and try to prove affirmative defenses not alleged in his answer.”

      . Griffith v. Shamrock Village, 94 So.2d 854, 858 (Fla.1957); Henry Morrison Flagler Museum v. Lee, 268 So.2d 434 (Fla. 4th DCA 1972); MacDonald v. Penn Mutual Ins. Co., 276 So.2d 232 (Fla. 2d DCA 1973); Country Club of Miami Corp. v. McDaniel, 310 So.2d 436 (Fla. 3d DCA 1975).