text:
    Joseph P. D’ALESSANDRO, etc., Petitioner, v. John H. SHEARER, Jr., etc., Respondent. In Re Jerry CROOKS, Case No. 77-466CF. Joseph P. D’ALESSANDRO, etc., Petitioner, v. John H. SHEARER, Jr., etc., Respondent. In Re William OPITZ, Case No. 77-183CF.
    Nos. 53124, 53143.
    Supreme Court of Florida.
    June 30, 1978.
    Joseph P. D’Alessandro, State’s Atty., in pro per.
    Louis S. St. Laurent, Chief Asst.. State’s Atty., and Patricia A. Kerwin, Asst. State’s Atty., Fort Myers, for petitioner.
    John H. Shearer, Jr., in pro per.
   BOYD, Justice.

The State Attorney for the Twentieth Judicial Circuit petitioned this Court for an alternative writ of mandamus to compel the Honorable John Shearer, Lee County Circuit Judge, to perform his legal duty under Section 775.087(2), Florida Statutes. We issued the writ and have received the Judge’s response. We have concluded that a final writ should be issued.

The statute requires that any person convicted of certain enumerated criminal offenses, among them robbery, and who had a firearm in his possession at the time of the crime, “shall be sentenced to a minimum term of imprisonment of three calendar years . . . adjudication of guilt or imposition of sentence shall not be suspended, deferred or withheld, nor shall the defendant be eligible for parole or statutory gain-time . . . prior to serving [the] minimum sentence.” Section 775.087(2)(b), Florida Statutes. In two cases before Judge Shearer, State v. Crooks and State v. Opitz, the defendants, charged with robbery with a firearm, pleaded guilty as charged. The record shows that Judge Shearer refused to order the mandatory minimum sentences because he believed them to be unconstitutional, despite awareness of our decision upholding the statute against constitutional attack. See Sowell v. State, 342 So.2d 969 (Fla.1977).

In the return and accompanying brief, Judge Shearer defends his inaction with the explanation that he believes he has performed his duty under the statute since he sentenced both defendants to five-year terms of imprisonment. The orders of judgment and sentence bear out that the five-year sentences were imposed. We give Judge Shearer the benefit of the doubt as to his intention. Still, the orders do not recite that the defendants are subject to the mandatory minimum sentence of three years imprisonment. Without such a recitation the authorities will not be on notice that the case calls for service in prison of a minimum of three years. And, even if they received notice by other means, without a judicial order it would be questionable whether minimum service was required. This cause is remanded to respondent with directions to vacate the prior sentences and impose sentences requiring three years of imprisonment on each defendant before possible eligibility for release, as provided in Section 775.087(2), Florida Statutes.

It is so ordered.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sheldon SPECTOR, Appellant, v. STATE of Florida, Appellee.
    No. 53164.
    Supreme Court of Florida.
    June 30, 1978.
    Tobias Simon and Jennifer Hurst, Miami, for appellant.
    No appearance for appellee.
   PER CURIAM.

Reversed and remanded for new trial. Section 812.14(3), Florida Statutes, is unconstitutional and may not be applied in a proceeding following remand of the cause. MacMillan v. State, 358 So.2d 547 (Fla.1978).

It is so ordered.

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

ENGLAND, J., dissents.


text:
    STATE of Florida, Appellant, v. Bernard Olan HOTALING, Appellee.
    No. 53385.
    Supreme Court of Florida.
    June 30, 1978.
    Robert L. Shevin, Atty. Gen., Tampa, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Richard Lee Buckle, Bradenton, for ap-pellee.
   PER CURIAM.

Affirmed. MacMillan v. State, 358 So.2d 547 (1978).

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

ENGLAND, J., dissents.


author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Sidney KATES, Respondent.
    No. 53643.
    Supreme Court of Florida.
    June 30, 1978.
    John A. Weiss, Asst. Staff Counsel, Tallahassee, for complainant.
    No appearance for respondent.
   PER CURIAM.

In this disciplinary proceeding the referee has filed with the Court his report recommending that respondent be found guilty of professional misconduct, suspended from the practice of law for a period of ninety days, and thereafter placed on probation for an additional period of six months under prescribed terms. Neither the Bar nor respondent has filed a petition for review.

We have examined the record and conclude that the referee’s findings are amply supported by clear and convincing evidence. In accordance with Integration Rule 11.-09(3)(f), we therefore approve and adopt the disciplinary recommendations of the referee. Respondent is hereby suspended from the practice of law for a period of ninety days, to be followed by supervised probation for six months during which time respondent shall file monthly with staff counsel of The Florida Bar a caseload report showing the names and current status of matters which respondent has agreed to undertake on behalf of clients, including information as to cases disposed of during the month. Respondent is further directed to pay the costs of these proceedings in the amount of $449.50.

It is so ordered.

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

BOYD, J., concurs in part and dissents in part with an opinion.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in respondent’s ninety-day suspension from the practice of law, but I dissent to the six month supervised probation upon resumption of his practice.

       The referee’s recommended procedure for the supervised probation, however, is slightly modified as reflected in this opinion.


author: ALDERMAN, Justice.

text:
    STATE of Florida, Appellant, v. CITY OF DAYTONA BEACH, Florida, Appellee.
    No. 53839.
    Supreme Court of Florida.
    June 30, 1978.

      Stephen L. Boyles, State’s Atty., and Jeffrey L. Dees, Asst. State’s Atty., Daytona Beach, for appellant.
    John C. Chew, City Atty., Frank Gum-mey, III, Asst. City Atty., Daytona Beach, and John F. Kelly and Frank L. Watson of Freeman, Richardson, Watson, Slade, McCarthy & Kelly, Jacksonville, for appel-lee.
   ALDERMAN, Justice.

We have for review by direct appeal the final judgment of the Circuit Court, in and for Volusia County, validating certain refunding bonds of the City of Daytona Beach which include not exceeding $22,000,-000 water and sewer revenue bonds, series 1978, and not exceeding $16,000,000 special obligation bonds, series 1978A.

The State of Florida, through the State Attorney for the Seventh Judicial Circuit, challenges this validation on the grounds that Chapter 132 and Chapter 159, Florida Statutes (1977), apply to the proposed refunding bonds and the proposed refunding plan violates Sections 132.11 and 159.13; that the proposed issue does not constitute a “project” within the meaning of Section 166.101(8), Florida Statutes (1977); and that the special obligation bonds are not payable in the same manner as the outstanding bonds, as required by Section 166.-101(6), Florida Statutes (1977). We find these points to be without merit and affirm the judgment of the trial court validating these bonds.

Pursuant to Chapter 166, Florida Statutes (1977), the City of Daytona Beach, by Ordinance No. 78-43, authorized the refunding of presently outstanding obligations of the City payable from revenues of the combined water and sewer system. The ordinance, which provided for water and sewer revenue bonds not exceeding $22,-000,000 to be applied to refund the principal, interest and redemption premiums in respect to the presently outstanding obligation, states that the issuer has previously issued the refunded bonds of which $19,-810,000 principal amount would be outstanding as of January 2, 1978; that the refunding program will be advantageous because it will permit the elimination of burdensome covenants and will result in a realization of interest savings with respect to the aggregate sewer system indebtedness; that an amount sufficient to effect the refunding will be deposited in an irrevocable escrow account established for the benefit of the holders of the refunded bonds and invested in federal securities not redeemable at the option of the obligor; that the principal amount of the federal securities will be sufficient to make timely payments of all presently outstanding principal, interest and redemption premiums relating to the refunded bonds; that the interest earned on these securities will be sufficient to make timely payments of principal and interest on the special bonds; that the principal and interest of the bonds and required sinking fund shall be payable solely from net revenues derived from the operation of the water and sewer system; that the issuer shall never be required to levy ad valorem taxes on any property to pay the principal of, and interest on, the bonds; that the bonds shall not constitute a lien upon any properties owned by, or located within the boundaries of, the issuer; that the proceeds, including accrued interest and premium, from sale of the bonds, shall be applied as follows:

A. The accrued interest to the date of delivery shall be deposited in the Sinking Fund herein created and shall be used only for the purpose of paying interest becoming due on the Bonds.
B. At the option of the Issuer, a sum which, together with other legally available funds of the Issuer deposited therein on the date of delivery of the Bonds, will equal the Maximum Debt Service Requirement coming due in any ensuing Fiscal Year shall be deposited into the Reserve Account hereinafter created and established.
C. To the extent not paid or reimbursed therefor by the original purchaser of the Bonds, the Issuer shall pay all costs and expenses in connection with the preparation, issuance and sale of the Bonds.
D. A sum specified in the Escrow Deposit Agreement which (1) together with a portion of the net proceeds of the sale of the Special Bonds and the other funds, if any, described in the Escrow Deposit Agreement to be deposited in escrow, will be sufficient to pay, as of any date of calculation, the principal of and premium, if any, and interest on the Refunded Bonds as the same shall become due or are redeemed as provided by subsequent resolution of the Issuer, and which sum (2) together with the net proceeds of the sale of the Special Bonds and the other funds, if any described in the Escrow Deposit Agreement to be deposited in escrow, and together with the Escrow Deposit Income, as defined in the Escrow Deposit Agreement, will be sufficient to make the payments described above and to pay the principal of and interest on the Special Bonds as the same shall become due, and to pay the expenses specified in the Escrow Deposit Agreement, shall be deposited into the Principal Account and the Income Account established in the Escrow Deposit Agreement, in .the respective amounts sufficient for such purposes.

The City also enacted Ordinance No. 78-44 authorizing the refunding of the presently outstanding revenue obligations, providing for the issuance of special obligation bonds not exceeding $16,000,000, and providing for the payment of the refunding bonds from escrow deposit income. This ordinance provides that the issuer will derive income from the investment of moneys to be deposited in escrow, that special bonds shall be payable as to principal and interest solely from and secured by a pledge of a first lien upon certain escrow deposit income, and that these bonds shall not constitute a general indebtedness of the City nor debt of the State and shall not constitute a pledge of the faith and credit of the City or the State.

In his final judgment validating the bonds, after making extensive findings, the trial judge ordered:

NOW THEREFORE, IT IS ORDERED AND ADJUDGED, that the issuance by the City of Daytona Beach, Florida, of not exceeding $22,000,000 Water and Sewer Revenue Bonds, Series 1978, to be dated as of a date to be fixed by resolution of Plaintiff prior to the issuance of the Water and Sewer Revenue Bonds, to be numbered consecutively from one upward, to be issued in such denominations as shall be determined by the Plaintiff, bearing interest at not exceeding the maximum rate authorized by law, and to mature either semiannually or annually in such years, but not exceeding 35 years from their date, and in such amounts as shall be determined and fixed by resolution of Plaintiff to be adopted prior to the delivery of the Water and Sewer Revenue Bonds, and to be callable as provided in the Water and Sewer Bond Ordinance, is for a proper, legal and corporate public purpose and is fully authorized by law and that the Water and Sewer Revenue. Bonds and each of them to be issued as aforesaid and all proceedings incident thereto are hereby validated and confirmed. The Water and Sewer Revenue Bonds are to be issued to finance part of the cost of refunding the Refunded Bonds and as and when so issued will be payable from and secured by the Net Revenues derived by Plaintiff from the operation of the water and sewer system in the manner provided in the Water and Sewer Bond Ordinance.
IT IS FURTHER ORDERED AND ADJUDGED, that the issuance by the City of Daytona Beach, Florida, of not exceeding $16,000,000 Special Obligation Bonds, Series 1978, to be dated as of a date to be fixed by resolution of Plaintiff prior to the issuance of the Special Bonds, to be numbered consecutively from one upward, to be in the denomination of $5,000 each of integral multiples thereof, bearing interest at not exceeding the maximum rate authorized by law and to mature on such dates and in such years and in such amounts, all to be determined and fixed by resolution of Plaintiff to be adopted prior to the delivery of the Special Bonds, is for a proper, legal and corporate public purpose and is fully authorized by law and that the Special Bonds and each of them to be issued as aforesaid and all proceedings incident thereto are hereby validated and confirmed. The Special Bonds are to be issued to finance part of the costs of refunding the Refunded Bonds and as and when so issued will be payable from and secured by a pledge of and a first lien upon certain escrow deposit income in the manner described in the Special Bond Ordinance and the Escrow Deposit Agreement to be entered into by the Plaintiff in the form attached to the Water and Sewer Bond Ordinance.

Article VIII, Section 2(b), Florida Constitution, provides:

(b) POWERS. Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law. Each municipal legislative body shall be elective.

Section 166.021, Florida Statutes (1977), provides:

(1) As provided in s. 2(b), Art. VIII of the State Constitution, municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law.
(4) The provisions of this section shall be so construed as to secure for municipalities the broad exercise of home rule powers granted by the Constitution. It is the further intent of the Legislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the Constitution, general or special law, or county charter and to remove any limitations, judicially imposed or otherwise, on the exercise of home rule powers other than those so expressly prohibited. .

Section 166.111, Florida Statutes (1977), provides:

Authority to borrow. — The governing body of every municipality may borrow money, contract loans, and issue bonds as defined in s. 166.101 from time to time to finance the undertaking of any capital or other project for the purposes permitted by the State Constitution and may pledge the funds, credit, property, and taxing power of the municipality for the payment of such debts and bonds.

Refunding bonds are defined in Section 166.101 as follows:

Definitions. — As used in this part, the following words and terms shall have the following meanings unless some other meaning is plainly indicated:
(6) The term “refunding bonds” means bonds issued to refinance outstanding bonds of any type and the interest and redemption premium thereon. Refunding bonds shall be issuable and payable in the same manner as the refinanced bonds, except that no approval by the electorate shall be required unless required by the state constitution.

Recently, in State v. City of Sunrise, 354 So.2d 1206 (Fla.1978), this Court described the authority of municipalities to issue refunding bonds as follows:

Since there is no specific section in the Constitution authorizing municipalities to issue refunding revenue bonds, the Attorney General and all other parties have argued on rehearing that the municipalities may issue such bonds under their constitutional home-rule powers. Article VIII, Section 2, Florida Constitution, expressly grants to every municipality in this state authority to conduct municipal government, perform municipal functions, and render municipal services. The only limitation on that power is that it must be exercised for a valid “municipal purpose.” It would follow that municipalities are not dependent upon the Legislature for further authorization. Legislative statutes are relevant only to determine limitations of authority. Since there is no constitutional or statutory limitation on the right of municipalities to issue refunding revenue bonds not payable by ad valorem taxes, we hold that municipalities may issue “double advance refunding bonds” so long as such bonds are pursuant to the exercise of a valid municipal purpose.
In reaching this determination we recognize that our present authority to review such bonds is sharply limited, almost to the point of insignificance. Our decision cannot reach the question of whether the revenue bond plan presently before us is fiscally sound, or whether double advance refunding is a wise method of financing municipal undertakings. .

Neither Chapter 132 nor Chapter 159 constitutes a limitation on the authority of the City of Daytona Beach to issue these refunding bonds. Chapter 132 applies only to refunding bonds payable at least in part from ad valorem taxes. Section 159.14 expressly provides that Part I of Chapter 159 is an additional and alternative method for doing the things thereby authorized and is to be regarded as additional and supplemental to powers conferred by other laws not in derogation of any of those powers. The City of Daytona Beach chose to authorize and issue these refunding bonds pursuant to Chapter 166.

The question of whether these refunding bonds constitute a “project” within the definition of Section 166.101(8), Florida Statutes (1977), has been resolved in favor of the City by this Court’s recent decision in State v. City of Sunrise, supra.

Finally, the State argues that special obligation bonds are not payable in the same manner as the refunded bonds, as required by Section 166.101(6), since, to be in accordance with this statutory provision, the proposed refunding bonds must be payable out of the same source of funds. The City responds, and we agree, that Section 166.101(6) means that refunding bonds which are issued to refund revenue bonds must be issuable and payable in the same manner as revenue bonds are issuable and payable, and refunding bonds which are issued to refinance ad valorem bonds must be issuable and payable in the same manner as ad valorem bonds. We, therefore, hold that the special obligation bonds are not violative of this statutory provision.

Accordingly, we affirm the final judgment of the trial court validating these refunding bonds.

It is so ordered.

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


author: DAUKSCH, Judge.

text:
    STATE of Florida, Appellant, v. Arthur SHIPMAN and Frederick A. Pierce, Appellees.
    No. 77-1493.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Rehearing Denied April 4, 1978.
    Michael J. Satz, State’s Atty., and Patti Englander, Asst. State’s Atty., Ft. Lauder-dale, for appellant.
    Fred Haddad, of Sandstrom & Haddad, Ft. Lauderdale, for appellees.
   OPINION ON MOTION

DAUKSCH, Judge.

Appellees have sought our review of an order below setting bond for them pending the state’s appeal of an order granting a suppression of evidence.

They complain they are being denied equal protection of the law because they had to post a bond where an indigent person would be released on his own recognizance, without bond. They cite a sentence from Sec. 924.071(2) Florida Statutes (1975) which says:

“A defendant in custody whose case is stayed either automatically or by order of the court shall be released on his own recognizance pending the appeal if he is charged with a bailable offense.”

Appellees maintain that because an indigent person is entitled to be released on his own recognizance then they should also be so entitled. In a strict construction of the statute appellees make a most convincing argument. Everyone is entitled to equal protection of the law, not just poor people. However, in State of Florida ex rel. Harrington v. Genung, 300 So.2d 271 (Fla. 2d DCA 1974), it was held the word “shall” in Sec. 924.071(2) means “may” because the legislature does not have the authority to mandate the courts in matters of bail. It was held that the quoted statute is directory rather than mandatory. We agree with the holding in that case for the reasons stated in the opinion. Therefore, an indigent defendant is not always entitled to be released on his own recognizance and can be held in custody if he is unable to post bail, in the sound discretion of the committing magistrate. With that all are given equal protection.

The order is affirmed.

ALDERMAN, C. J., and GREEN, OLIVER L., Associate Judge, concur.


text:
    L. T. HANKS, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. JJ-127.
    District Court of Appeal of Florida, First District.
    April 21, 1978.
    L. T. Hanks, in pro. per.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Hanks, an inmate, petitions for writ of habeas corpus. He is serving consecutive five year sentences for two escape convictions. His accumulated gain-time was taken away without notice or hearing due to those convictions. He contends he was denied due process as afforded by Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The state merely responds by quoting Section 944.28(1) (1977), which permits the Division, without notice or hearing, to declare a forfeiture of all gain-time earned by the prisoner prior to escape following his conviction for escape.

Despite the intriguing question raised by petitioner and the inadequate return by the state, we are compelled to deny the petition. The Florida Supreme Court in Morgan v. Cook, 344 So.2d 577 (Fla.1977) considered the same point and found 944.28(1) constitutional, relying on Rankin v. Wainwright, 351 F.Supp. 1306 (M.D.Fla.1972). Our review of the record in Morgan v. Cook shows petitioner pled guilty and was sentenced to six months for his escape. Although the rationale is not set out in the opinion, apparently the Supreme Court found the judicial determination of guilt in the escape attempt was sufficient due process for the forfeiture of gain-time.

The petition is DENIED.

MILLS, A. C. J., and ERVIN and BOOTH, JJ., concur.


text:
    Dennis W. BRUNICARDE, Appellant, v. STATE of Florida, Appellee.
    No. 77-1206.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error; therefore, the judgment appealed is affirmed.

The only point which merits discussion is the propriety of the appellant’s sentence to confinement “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for its imposition as a sentence for any offense. Speller v. State, 305 So.2d 231 (Fla.2d DCA 1974).

Remanded for the purpose of striking the language “at hard labor” from the sentencing order; otherwise affirmed. Appellant need not be present for this purpose.

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


text:
    ATRECO-FLORIDA, INC., the Manors Club, Inc., the Manors of Inverrary Condominium I Association, Inc., the Manors Townhouse Condominium Association, Inc., the Manors of Inverrary XI Association, Inc., the Manors of Inverrary XII Association, Inc., Atreco-Florida Management, Inc., and American Trading & Production Corp., Appellants, v. Henry BERLINER and Rose Berliner his wife, et al., Appellees.
    Nos. 78-791, 78-792.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Rehearings Denied Aug. 3, 1978.

      T. E. Scott, Jr. and Joseph F. Jennings, of Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, P.A., Miami, for appellants.
    Richard M. Dunn, of Arky, Freed, Stearns, Watson & Greer, Miami, for appel-lees.
   ON MOTION TO DISMISS

PER CURIAM.

These are consolidated appeals from an order certifying a class action. This court is of the opinion that such order is interlocutory in nature, and there is no provision for an appeal from such order under the appellate rules. Accordingly, the motion to dismiss these appeals is granted and the appeals are hereby dismissed.

DOWNEY, ANSTEAD and MOORE, JJ., concur.


author: DANAHY, Judge.

text:
    Deputy Charles PARKER, W. T. “Bill” Roberts, as Sheriff of Pinellas County, Florida, and American Home Assurance Company, Appellants, v. Laura Lucille ROBERTSON, Appellee.
    No. 77-1184.
    District Court of Appeal of Florida, Second District.
    June 14, 1978.
    James E. Thompson and Chris W. Alten-bernd of Fowler, White, Gillen, Boggs, Vil-lareal & Banker, Tampa, for appellants.
    John D. Fernandez and Ronald P. Teevan of Cooper, Rives, Penick, Strohauer & Tee-van, Clearwater, for appellee.
   DANAHY, Judge.

Appellee sued a Pinellas County deputy sheriff and W. T. “Bill” Roberts, the sheriff of Pinellas County, to recover damages for an alleged tort committed by the deputy. A jury returned a verdict against the deputy and Sheriff Roberts for both compensatory and punitive damages.

Several points are urged for reversal, but only one has merit. Sheriff Roberts argues that he cannot be held vicariously liable for the acts of the deputy complained of since those acts took place almost two years prior to the time Sheriff Roberts took office as sheriff. We agree, and reverse as to Sheriff Roberts with directions that the trial court enter judgment in his behalf. In all other respects, the judgment below is affirmed.

Affirmed in part and reversed in part.

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


author: OTT, Judge.

text:
    Albert E. LAWSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-1521, 77-1522 and 77-1523.
    District Court of Appeal of Florida, Second District.
    June 16, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow; and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee; and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

The State charged appellant with the commission of three robberies. He received a separate trial on each charge, and all three trials ended in a finding of guilty as charged. We have consolidated these three cases on appeal and we find merit in appellant’s argument that the court erred in allowing testimony of collateral crimes during the third trial. We reverse that conviction; otherwise, we affirm.

At the third trial the witness testified that appellant and another man robbed and shot him as he sat in his used car office. During cross-examination the following exchange occurred:

Q. (By defense counsel, Mr. Vollrath) You state now that there is no doubt in your mind that Albert Lawson is the person that did that; is that correct?
A. Right.
Q. Okay. Were you always so sure? A. I didn’t know his name until I saw it in the paper a day or two, a few days after that, where he had robbed this old man and broke his collarbone and this woman. I didn’t even know his first name or last.

At this point defense counsel moved for a mistrial. The court denied the motion, instructed the jury to disregard the answer except for the fact that the witness (or victim) got appellant’s name from the newspaper, and told the witness to limit his answers to the questions asked.

Several questions later the witness made the following statement:

THE WITNESS: I can’t, because he is saying that I said, when I called the police, I told them, I guess they made a record, the detective come up also, and I said this woman, I know her voice, because she has called before and told me about when she saw it in the paper, that Albert Lawson was involved in these other two cases and mine. She called me and told me about that.

Defense counsel again moved for a mistrial which motion the court denied. On redirect examination the witness made yet another reference to collateral crimes.

Q. Now, Mr Wilburn, Mr. Vollrath has gone to great detail here to try to confuse you and make it look like you didn’t tell the truth on that deposition. Now, would you explain to the members of the jury what you were trying to tell Mr. Volrath but you weren’t afforded the opportunity to do so?
A. Yes, I will.
Q. Okay.
A. This lady called me a few days after Lawson was picked up. I was shot on the 17th of April, if I am not mistaken, and the old man and woman was shot on the 25th and 27th.

For the third time counsel moved for a mistrial and once again the court denied the motion. Then, with the jury out, the court instructed the witness not to mention situations involving other people. The court also told the jury to strike from consideration any reference to anything about any individuals other than the one involved in that case.

The Florida Supreme Court has long held that when a defendant is on trial for the commission of a crime, testimony concerning other offenses committed by him is only admissible when relevant to some issue other than bad character or propensity to commit crime. Williams v. State, 110 So.2d 654 (Fla.1959). In the present case we do not think and the State does not argue that Mr. Wilburn’s testimony that appellant robbed two other people was relevant to any issues at trial. Accordingly, error occurred each time Mr. Wilburn made a reference to the other robberies.

Since the first reference was responsive to a defense question we would be inclined, if that were all we were confronted with, to follow the State’s suggestion that we affirm on the principle that a defendant is not entitled to reversal when he has caused the error complained of. See Castle v. State, 305 So.2d 794 (Fla.4th DCA 1975) aff’d., 330 So.2d 10 (Fla.1976). However, the witness made two other references to appellant’s involvement in other robberies, once in an attempt to explain a previous answer and once in response to a question from the state. Such remarks, whether calculated or not, left the jury with the impression that appellant was an evil person who had a propensity to commit criminal acts. This result is exactly what the supreme court sought to prohibit in Williams v. State, supra.

We hold that after the witness first mentioned appellant’s involvement in other robberies the trial court should have instructed him not to do so again and should have made sure that he understood.

We find that there is one other point which we must discuss. At the second trial the court refused a defense request that it instruct the jury on assault with intent to commit petit larceny. Appellant argues that this was error citing Moore v. State, 341 So.2d 814 (Fla.2d DCA 1977).

While we agree with appellant that Moore would seem to require an instruction on assault with intent to commit petit larceny in the present case, we recede from the holding of Moore insofar as it discusses that type of assault. Assault with intent to commit petit larceny is not a crime prohibited by the laws of Florida, and it goes without saying that a trial court can only instruct a jury on those offenses which are crimes within this state.

The other points which appellant has presented are without merit. Accordingly, we affirm Case Nos. 77-1523 and 77-1522, reverse Case No. 77-1521, and remand for further proceedings consistent with this opinion.

BOARDMAN, C. J., and RYDER, J., concur.


text:
    Sgt. William HARVEY et al., Appellants, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 77-1631.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Rehearing Denied July 28, 1978.
    Eugene P. Spellman, Miami, for appellants.
    Stuart L. Simon, County Atty., Amy N. Dean and Alan J. Kan, Asst. County Attys., for appellee.
    Before HAVERFIELD, C. J., BARK-DULL, J., and PARKER, J.' GWYNN (Ret.), Associate Judge.
   PER CURIAM.

In this appeal, plaintiffs seek review of an adverse summary final judgment in a class action for money damages, declaratory judgment and injunctive relief. The summary final judgment contains the following findings of fact by the trial court: (1) that in October of 1975, plaintiffs filed this class action on behalf of themselves and other similarly situated employees of the Dade County Public Safety Department against their employer, Metropolitan Dade County, seeking monetary, declaratory and injunc-tive relief for the alleged deprivation of certain supplementary pay benefits; (2) that in October of 1970, the Dade County Commission adopted Resolution No. R-1278-70, amending the pay plan for county service for 1970-1971 by providing a one pay step salary supplement to classified law enforcement personnel with baccalaureate or higher degrees in academic fields covered by the Law Enforcement Assistance Act, who are not required to have such degrees upon employment into their classification; (3) that effective July 1, 1974, Section 23.-078, Florida Statutes (Supp.1972), established a salary incentive program for local law enforcement officers by providing them the maximum amount of $130.00 per month as an educational incentive based upon attainment of a community college degree, a bachelor’s degree, and/or completion of approved training courses; the funding for this program was to come from the 1972 Federal Revenue Sharing Act; (4) that Section 23.078(f), Florida Statutes (Supp.1972), provided that no local unit is to use any state funds received or federal funds made available under Section 23.073, for the purpose of circumventing payment of any currently planned or existing salary or compensation plan which provides normal pay increases periodically to its law enforcement officers; (5) that in August of 1974, the Florida Legislature repealed Section 23.078, Florida Statutes (Supp.1972), and replaced it with Section 943.22, Florida Statutes (Supp.1974), which contains the same provisions as its predecessor, Section 23.078, supra, as mentioned in paragraphs 3 and 4 above; (6) that in December of 1974, the Dade County Commission adopted Resolution No. R-1444-74, which retroactively amended the pay plans for county service for 1973-1974 and 1974-1975, to conform to the state statutory requirements of Section 23.078 as amended, by providing for classified law enforcement personnel to receive either the amount required by Section 23.-078, Florida Statutes (Supp.1972), or a salary supplement equal to a one-step increment in pay, whichever was greater, it being the position of the plaintiffs that this action by the county was- contrary to sub-paragraph (f) of Section 23.078, as amended, and therefore, the plaintiffs are entitled to receive both the educational supplements provided in County Resolution R-1280-70, and in Section 23.078, Florida Statutes (Supp.1972), as amended by Section 943.22, Florida Statutes (Supp.1974).

The summary judgment continues with the trial court’s conclusions of law,

“Statutes should not be construed so as to create absurd results and if a literal interpretation of a statute leads to an unreasonable conclusion or purpose not designated by the legislature, the statute should be interpreted in accordance with the clear purpose and intent of the legislature. Smith v. Venus Condominium Association, Inc., 343 So.2d 1284 (Fla. 1st D.C.A. 1976); . . . Conscenta v. Girodino, 143 So.2d 682 (Fla. 3rd D.C.A. 1962); Maryland Casualty Company v. Marshall, 106 So.2d 212 (Fla. 1st D.C.A. 1958); State v. Wentworth, 185 So.2d 357 (Fla.1938). The law favors a rational, sensible construction of statutes and thus the interpretation of statutory provisions niay be controlled by their practical operation in effect. Maryland Casualty Company v. Marshall, supra.
Plaintiffs’ reasoning distorts the clear purpose and intent of Section 23.078(f) as amended (943.22(f)). By simply reading the section, one can ascertain that this subsection refers to attempts to reduce the basic civil service pay scale of a police officer and then, through the use of said supplementary benefits to increase same to equal the amount previously received prior to the adoption of the statute. The subsection clearly was not intended to deal with the situation in the instant case where the local government already had in effect an educational pay supplement program. As then County Manager R. Ray Goode noted in his explanatory memorandum to the Board of County Commissioners .
'The Police Standards Board has indicated that this pay amendment exceeds the State requirements. Board representatives have stated that the law did not anticipate local governments having already taken the initiative to establish educational pay supplements for law enforcement officers. In addition to exceeding the requirements of the law, the policy proposed in the attached resolution establishes, what we believe to be, a reasonable relationship between incentive and objective.
The suggestion has been made to the Commission by the Dade County Police Benevolent Association that the County pay the $80 per month supplement in addition to one pay step. We feel that such a “doubling up” of benefits would place this incentive grossly out of proportion.’
It is therefore obvious that said statute was intended to give every police officer in every county in the State of Florida uniform supplementary pay benefits which were already provided to those officers fortunate enough to be in the employ of Metropolitan Dade County. (See, generally, A.G.O. 072-308 and Section 943.24(18), Florida Statutes (Supp.1974), wherein the Legislature stated that it was their intent ‘to provide state monetary supplement to effectuate an upgrading of compensation for all law enforcement officers, and to upgrade the educational and training standards of such officers). Thus, to adopt the interpretation of the plaintiffs would penalize Dade County for providing supplements prior to a uniform state provision and place a greater onus on Dade County than on any other county in the state. Accordingly, it is
ORDERED AND ADJUDGED that:
1. Plaintiffs’ motion for summary judgment be and the same is hereby denied.
2. Defendant’s motion for summary judgment be and the same is hereby granted.
3. Summary Final Judgment be and the same is hereby entered in favor of the defendant, Metropolitan Dade County, and against the plaintiffs.
4. The plaintiffs have and recover nothing of the defendant, Metropolitan Dade County, and their complaint be and the same is hereby dismissed on the merits.”

We find the foregoing summary final judgment to be accurate, complete and a fair disposition of the cause of action. Therefore, we adopt it as the opinion of this court (with the exception of one case citation which we omitted as we found it to be inapplicable). The thrust of this case revolved around statutory interpretation. There being no genuine issue of material fact, we find that the trial court made the proper interpretation.

Clearly, the state statute and the county resolution both were enacted to serve the same purpose, namely to upgrade the educational and training standards of law enforcement officers. To grant the relief sought by the plaintiffs in this case, would place an undue burden on Dade County, penalizing it for having provided pay supplements prior to the enactment of the uniform state provision. Therefore, the summary final judgment is affirmed.

The cross-assignments of error raised by the defendant, Dade County, are without merit and will not be discussed.

Affirmed.


author: PER CURIAM. BOYER, Judge,

text:
    Harry KATZ, Jr., Appellant, v. Gregory D. GALPHIN, Appellee.
    No. HH-58.
    District Court of Appeal of Florida, First District.
    June 30, 1978.
    Rehearing Denied Aug. 3, 1978.

      Harry Katz, Jr. of Katz & Katz, Jacksonville, for appellant.
    Frank D. Upchurch, Jr. of Upchurch & Upchurch, St. Augustine, for appellee.
   PER CURIAM.

Upon consideration of the record, the briefs and oral argument of counsel for the respective parties, we find there is competent substantial evidence to support the final judgment and no reversible error.

AFFIRMED.

McCORD, C. J., and McLANE, RALPH M., Associate Judge, concur.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

I respectfully dissent.

This case involves a dispute between a homeowner and a builder regarding a contract whereby the builder agreed to build a home for the owner on property owned by the owner in accordance with plans and specifications furnished by the owner’s architect. The record reveals that all parties agree that there was a clear understanding from the very beginning that the owner would insist upon quality work and rigid adherence to the plans and specifications. After many months of haggling the owner finally took over the job and completed the building. The builder sued the owner, alleging in Count I of his complaint a breach of contract by failure on the part of the owner to pay the builder a progress payment and sought by Count II a recovery on the theory of quantum meruit.

The evidence is, of course, conflicting on most issues. However, there is no conflict as to the clear understanding and contractual arrangement for quality construction in accordance with the plans and specifications. The record is equally clear that there were substantial deviations from those requirements. Accordingly, in my view, “substantial compliance” was insufficient. The owner knew what he wanted and was willing to pay the price. The builder was aware of the owner’s desires, acquiesced therein and agreed thereto. The owner was therefore entitled to that to which the parties agreed, quality construction in accordance with the plans and specifications.

The case was tried before the court without a jury whereupon a final judgment was entered in favor of the builder for the sum of $18,000.00. There is no indication as to which Count of the complaint recovery was allowed nor is there any explanation of the amount of the judgment.

. Taking the evidence in its light most favorable to the appellee builder, as we must on appeal, the record clearly reveals that upon considering the amount claimed by the builder to be due and the amounts required to. have been expended by the owner to complete the home in accordance with the plans and specifications and to correct deficiencies and deviations from the plans and specifications, the maximum amount of recovery to which the plaintiff (builder) could have been entitled was $4,810.98. Accordingly, I would reverse.


author: PEARSON, Judge. CHARLES CARROLL, Retired Associate Judge

text:
    FIRST NATIONAL COMMERCE AND FINANCE COMPANY, Appellant, v. The INDIANA NATIONAL BANK, Appellee.
    No. 77-1101.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.

      Alfred Gustinger, Jr., Miami, for appellant.
    Paul, Landy, Beiley & Yacos and Jeffrey S.Tanen, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

The defendant, First National Commerce and Finance Company, appeals a summary final judgment for plaintiff, The Indiana National Bank. The appellee, The Indiana National Bank, brought suit to foreclose its recorded security interest in an aircraft. One of the defendants named was First National Commerce and Finance Company, who had purchased the aircraft at a mechanic’s lien sale pursuant to Section 85.-031(2), Florida Statutes (1975). The order appealed recites the following stipulated facts which have not been controverted on this appeal:

“The above-styled action came on for hearing before the Court on April 14, 1977 upon the Motion of Plaintiff-Counter-Defendant, THE INDIANA NATIONAL BANK, hereinafter called (‘INDIANA’) for Summary Judgment on Counts I and II of its Complaint and on the Counterclaim asserted by Defendant-Counter-Plaintiff, FIRST NATIONAL COMMERCE AND FINANCE COMPANY, hereinafter called (‘FNC’). The Court has reviewed the file, has read the memorandum of law submitted by counsel for the respective parties and has entertained the arguments advanced by counsel for the respective parties.
“Therefore, upon consideration, it is:
“FOUND AND DETERMINED that the following facts have been either stipulated and agreed to by the parties in respect of the subject Motion for Summary Judgment by virtue of their respective memoranda of law or are without contradiction, gathered from the affidavits, depositions and pleadings, to wit:
“On October 19, 1974, INDIANA financed the purchase of a Cessna 401, Serial Number 401-0056, F.A.A. Registry Number N-8007-M, hereinafter called (‘SUBJECT AIRCRAFT’) by CABAIR, INC. for payments aggregating $123,-137.50. The Installment Sales Contract was duly recorded with the Federal Aviation Administration (hereinafter called ‘F.A.A.’) Registry, pursuant to 49 U.S.C. § 1403 on November 25,1974, as acknowledged by the F.A.A.
“On April 7, 1975, SUN COUNTRY AIRLINES, INC., assumed the obligation of CABAIR, INC. on the Installment Sales Contract. This Assumption Agreement was duly recorded with the F.A.A., pursuant to 49 U.S.C. § 1403 on May 13, 1975.
“SUN COUNTRY AIRLINES, INC. and CABAIR, INC. have made no monthly payments since approximately June of 1976 and, therefore, are in default. As of January 19,1977, the balance owed INDIANA was $76,279.96.
“The last payment was received on June 8, 1976 and applied to the due' and outstanding April 1,1976 payment. Prior to July 13, 1976, INDIANA received a telephone call from SUN COUNTRY AIRLINES, hereinafter called (‘SUN COUNTRY’), in which call SUN COUNTRY advised that it could not meet the payment schedule on its obligation and requested INDIANA pick up the subject aircraft at the North Perry Airport located in Broward County, Florida. SUN COUNTRY did not advise INDIANA that the subject aircraft was being held for a lien or that it was chained to the ground.
“On July 13, 1976, INDIANA advised one Jack L. Rhodes, President of Jack L. Rhodes Aircraft Sales, Inc. that SUN COUNTRY had been in contact with INDIANA and had requested that INDIANA pick up the subject aircraft, that the subject aircraft was located at the North Perry Airport and that one engine was not operational and indicated low cylinder pressure. On a week day following July 30, 1976, Rhodes unsuccessfully went to the North Perry Airport to pick up the subject aircraft.
“Some time after February 1, 1976, CORT AVIATION, INC., a Florida corporation engaged in providing mechanical services and storage space to aircraft owners, hereinafter called (‘CORT’), undertook repairs on the subject aircraft. This work resulted in $900.00 of mechanic’s charges for labor and parts. The $900.00 was not paid by SUN COUNTRY AIRLINES, INC. No Mechanic’s Lien was ever recorded by CORT AVIATION, INC. with the F.A.A.
“On July 30, 1976, to satisfy the Mechanic’s Lien, CORT sold the subject aircraft, pursuant to Florida Statutes § 85.-031(2) to FNC. No actual notice of the sale was every given to INDIANA.”

The court entered its opinion on the question of law presented.

“The issue before the Court is whether the sale of an aircraft conducted pursuant to Florida Statutes § 85.031(2) by a mechanic in possession can extinguish and divest the interest of the holder and owner of a lien validly perfected with the F.A.A. without notice to such secured party. This Court holds that such a sale cannot lawfully extinguish such a prior recorded lien; for holding to the contrary would be itself contrary to Florida law, inequitable in the extreme and unconstitutional in that the holder and owner of the lien would be divested of an interest in property without due process of law.
“The purpose of Florida Statute § 85.-031(2) is to allow a mechanic who or which has put labor and materials into a chattel to receive payment for that labor and for those materials. The statute does not expressly or implicitly provide that, by a statutory sale, a prior existing lien on that chattel would be extinguished. It is a rule of statutory construction that a statute enumerating things upon which it is to operate must be construed as excluding from its operation all things not expressly mentioned therein. See, e. g., Ideal Farms Drainage Dist. v. Certain Lands, 19 So.2d 234 (Fla.1944); Dobbs v. Sea Isle Hotel, 50 So.2d 341 (Fla.1952). Therefore the concept of extinguishment is excluded. The Court has been presented with no legal authority whatsoever to the effect that the legislature of this State intended to provide that a statutory sale by a mechanic would divest all other parties of record of their respective interests in that property and, thereby, extinguish their respective lien rights.
“FNC has argued to this Court that CORT, a mechanic lienor, had priority over the secured lien of INDIANA, that the operation of the statutory sale extinguished the secured lien of INDIANA, and that, therefore, FNC, as purchaser, took the aircraft free and clear of INDIANA’S lien. To the extent that FNC took the position of CORT, and only to that extent, it has a first lien, i. e., to the extent of $900.00. As to extinguishing the $76,279.96 interest of INDIANA, the sale did not, because it lawfully could not, effect the result.
“If Florida Statute § 85.031(2) allowed a mechanic in possession to extinguish by sale prior liens, without notice to secured parties, then that statute would be unconstitutional in that a taking of an interest in property would be authorized under color of state law but without due process of law. Florida law requires, for example, that a holder of a mortgage lien cannot be deprived of that lien without due process of law. See, Seaboard All Florida Railway v. Labiet, 141 So. 886 (Fla.1932). Further, it is presumed that the legislature of this state intended to enact constitutional laws and laws which do not conflict with the guarantee of due process. See, Smetal Corp. v. West Lake Inv. Co., 172 So. 58 (Fla.1937); Bussey v. Legislative Auditing Committee, 298 So.2d 219 (Fla. 1st DCA 1974). In order to construe the statute as constitutional, this Court must find that INDIANA’S security interest and lien have not been extinguished.
“At the outset of the hearing, this Court in the interest of justice allowed FNC to include as an additional defense that of estoppel. FNC has merely argued that INDIANA’S loan was somehow in default from February, 1976, and that, therefore, INDIANA is estopped. An es-toppel essentially and generally consists of three elements: (1) words and admissions or conduct, acts, and acquiescence or all combined, causing another person to believe in the existence of a certain state of things (and 2) in which the person so speaking admitting, acting and acquies-ing, did so wilfully, culpably, or negligently (and 3) by which such person is or may be induced to act so as to change his own previous position injuriously. Mere silence or acquiescence is not enough. There must be special circumstances requiring the one sought to be estopped to speak.
‘It is essential that the one claimed to be estopped should have had knowledge of the facts, and that the adverse party should have been ignorant of the truth, and have been misled into doing that which he would not have done but for such silence. Silence will not support an estoppel unless the person claiming an estoppel justifiably relied on the silence to its prejudice, and such conduct and reliance must be intended or reasonably anticipated by the one who remains silent. Ennis v. Warm Mineral Springs, Inc., 203 So.2d 514, 520 (2d Fla. DCA 1967).’
“This Court finds, as a matter of law and in its equitable conscience, that INDIANA was not under any obligation to notify FNC of anything and that INDIANA could not possibly have notified FNC that the subject aircraft loan was in default as of February 1, 1976, FNC has never argued that it relied in any respect upon INDIANA. Further, FNC admitted that it never searched the records of the F.A.A., to ascertain the evidence of any interests in the aircraft. FNC is by law charged with constructive notice of INDIANA’S lien on the subject aircraft. See McCauseland v. Davis, 204 So.2d 334 (2d Fla. DCA 1967).
“The February default if any,- and failure if any, of INDIANA to act upon it could not result in estoppel, for subsequent payments were made as late as June 8, 1976. If this Court were to hold otherwise, this Court would in effect, require a bank to file an action against its borrower almost immediately when a loan is in default, by virtue of a non-payment. This would not give a bank an opportunity in which to work out its problems with its borrower, and would not be in the public interest.”

The trial judge granted Indiana’s motion for a summary judgment foreclosing its lien and provided that: (1) the security interest of Indiana is capable of foreclosure despite the sale, but that First National Commerce and Finance Company (the purchaser at the mechanic’s lien sale) has a prior lien for the $900 paid at that sale; (2) Indiana is due the sum of $76,279.96, plus interest, and court costs; (3) unless the amount found due Indiana is paid, the aircraft shall be sold at a judicial sale; (4) from the proceeds of the sale, the clerk shall pay to First National Commerce and Finance $900; and (5) any surplus over the amounts of the two liens shall be reported to the court.

The appellant relies for reversal upon the decisions in Eastern Airlines Employees Federal Credit Union v. Lauderdale Yacht Basin, Inc., 334 So.2d 175 (Fla. 4th DCA 1976); Carolina Aircraft Corp. v. Commerce Trust Company, 289 So.2d 37 (Fla. 4th DCA 1974); and Gables Lincoln-Mercury, Inc. v. First Bank & Trust Company of Boca Raton, 219 So.2d 90 (Fla. 3d DCA 1969). These cases all hold that the mechanic’s lien against an aircraft provided in Section 85.-031(2), Florida Statutes (1975), is prior to a federally recorded security interest. The trial judge in this case has accorded that same priority to the purchaser at the sale. But the purchaser maintains that priority is not enough, that the mechanic’s lien is superior and, therefore, that the security interest does not survive the sale. The statute provides:

* * * * * *
“The proceeds of the sale, after payment of charges for construction or repair with the costs of the sale, shall be deposited with the clerk of the circuit court for the company, if the owner is absent, where they shall remain subject to the order of the person legally entitled thereto.”
* * * * * *

The Gables Lincoln-Mercury case, supra, was an action in replevin. It established the possessory right of the garageman’s lien as against that of the security interest. In the Carolina Aircraft Corp. case, supra, a proceeding very similar to the instant case was examined. Although the gist of the case was a determination of priority of the liens, the action was to foreclose a mortgage on an aircraft. The appellant mechanic lienor was permitted to intervene in the foreclosure to obtain a determination of the relative priority of its possessory lien. Following this court’s holding in Gables Lincoln-Mercury, supra, the appellate court held that the mechanic’s lien had priority over the security interest. The court then reversed the contrary judgment and remanded the cause for a continuation of the foreclosure under that holding. Of course, the case is not determinative because, unlike the present case, no sale had taken place.

The Eastern Airlines Employees Federal Credit Union case, supra, affirmed a holding of the trial court that the mechanic’s lien had priority over a prior, recorded security interest, that both liens be foreclosed and that the boat be sold to satisfy the amounts in that priority. Here again, there had been no prior sale under the statute.

The question presented thus becomes whether a sale under Section 85.-031(2), Florida Statutes (1975), for a prior lien gives a purchaser title free and clear of the claim of a recorded security interest where the holder thereof does not have actual notice of the sale. We hold that the purchaser takes title but that the aircraft is still subject to the recorded security interest. We agree with the trial judge that a contrary holding would deprive due process to the holder of the recorded security interest. Cf. Straley v. Gassaway Motor Company, Inc., 359 F.Supp. 902 (S.D.W.Va.1973). Also cf. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).

We believe we are supported in our view by the holding of this court in Altec Lansing v. Friedman Sound, Inc., 204 So.2d 740 (Fla. 3d DCA 1967), where the concept of a statutorily-created priority was recognized and upheld, but without undermining the integrity of a prior, recorded security interest. We agree that the holder of such security interest must take a back seat to the mechanic’s lien holder to the extent of the value of the mechanic’s lien. However, the holder of the recorded security interest takes a back seat only to that extent — for a mechanic’s lien holder may seek nothing greater than the value (plus any reasonable, incident costs) of his improvements, less any monies properly paid. See Bill Ader, Inc. v. Maule Industries, Inc., 230 So.2d 182 (Fla. 4th DCA 1969).

We note that the Altec Lansing case, supra, was relied upon by the appellant bank in the case of Maryland National Bank v. Porter-Way Harvester Manufacturing Company, 300 A.2d 8 (Del.1972). In that case, the Supreme Court of Delaware held that “. . . the title acquired by the purchaser at the sale is free and clear of all liens theretofore existing.” On the question of the continued existence of prior, recorded security interests, the Court quoted from Uniform Commercial Code Comment 2 of § 9-311 of the Uniform Commercial Code, our Section 679.9-311, Florida Statutes (1975):

. . in all security interests the debtor’s interest in the collateral remains subject to claims of creditors who take appropriate action. It is left to the law of each state to determine the form of ‘appropriate process.’ ” [emphasis added]

The court then pointed out that Florida,. unlike Delaware, had enacted legislation to supplement the Uniform Commercial Code. Therefore, under Delaware law, the appellant bank’s lien was extinguished, with the bank receiving a priority position with regard to the proceeds. The court also expressed its view that the Florida position interfered with the general Code policy of eliminating “stumbling blocks” in commercial transactions. Our only comment in this regard is that the creation here of the recorded security interest is itself a commercial transaction, and if we were to extinguish such interest, we would be setting up a “stumbling block” of the very sort the Code and the courts are committed to eliminating. As between the purchaser and the recorded security interest holder, the latter had an interest superior in time of perfection to the interest of the former, while the former, through its own affirmative actions in undertaking the purchase of the aircraft, was in a better position to discover and become acquainted with the various interests concerned. Finally, it should be noted that both the former and the latter have recourse to the courts if either or both were victims of fraud or misrepresentation by the mechanic’s lienor/seller.

Due process considerations demand that the security interest holder cannot be eliminated in this instance. It is interesting to note that the rights of a security interest holder are of sufficient strength that such a party may repossess financed property in default without notice to the purchaser and yet meet the standards of due process. See McCormick v. First National Bank of Miami, 322 F.Supp. 604, 607 (S.D.Fla.1971). There is also sufficient strength attributed to such a party for it to repossess through “self-help” without violating due process to the purchaser. See Northside Motors of Florida v. Brinkley, 282 So.2d 617 (Fla.1973). Accordingly, if the holder of a secured interest is in a position that it may take these actions without notice, then ironically, the rights of due process to be accorded such party must be preserved by the courts. See the principles of law in McQueen v. Lambert, 348 F.Supp. 1334 (M.D.Fla.1972).

Therefore, we hold that taking into consideration Sections 85.031(2) and 679.9-310, Florida Statutes (1975), together with the demands of due process, in the present case, (1) the sale of the subject aircraft is valid and the purchaser takes title thereto, (2) statutory and due process requirements preserve the interests of the holder of the prior, recorded security interest and implicitly (3) the mechanic’s lienor/seller is answerable to the parties for any fraud or misrepresentations made in connection with the sale.

Accordingly, we conclude that the judgment should be affirmed.

Affirmed.

CHARLES CARROLL, Retired Associate Judge

(dissenting).

I respectfully dissent. For its charge of $900.00 for repairs to the aircraft, Cort had a lien superior in dignity to the security interest represented by the installment sales contract held by the Indiana National Bank which had financed the purchase of the plane. Section 679.9-310, Florida Statutes (1975), the Uniform Commercial Code. See: Carolina Aircraft Corp. v. Commerce Trust Company, 289 So.2d 37 (Fla. 4th DCA 1974).

By Section 85.031(2), Florida Statutes (1975), the lien holder, Cort, was entitled to sell the plane as a means of enforcing its lien, subject to the conditions therein, and upon giving notice of sale as therein required. The conditions, compliance with which was not disputed, were that the plane had been entrusted to Cort for repairs, that Cort’s charge therefor was reasonable, that the plane remained in Cort’s possession for three months after the charge for repairs was due and continued in Cort’s possession until July 30, 1976 on which date the public auction sale was made.

The cited section of the statute specified that notice of sale should be given “by notices posted for 10 days in 3 public places in the county, one of which shall be at the courthouse, and another in some conspicuous part of his shop or place of business”. That notice of the sale was duly given as required by law was not disputed.

The trial court held, and, in affirming, this court agreed that the statute by providing for sale on such prescribed constructive notice, having the legal effect of conferring title on the purchaser free of inferi- or liens, is unconstitutional as being a taking of the property of the holder of an inferior security interest or lien without due process of law. However, this, court holds the sale would be effective to cut off the inferior security interest provided “actual notice” of the sale is given to the holder thereof. In my view the holding that the sale statute is unconstitutional as drawn, and that it is constitutional provided actual notice of sale is given, amounts to an amendment of the statute by judicial fiat.

Because of the doctrine of separation of powers, if an amendment to the statute for sale for enforcement of a repairman’s lien is necessary to make a sale thereunder free and clear of the interest of the property owner and of holders of inferior security interests, the legislature is the body to do that.

The judicial legislation supplying the proviso requiring actual notice of sale is both too little and too much. It is too little because the type and manner of actual notice is not set out. Can it be given by telephone, or by letter? If by letter, must it be by registered or certified mail requiring a signed receipt by the addressee? And how is proof of actual notice to be made, and preserved? It is too much because “actual notice” in some instances could not be made. Substituted service is used in foreclosures and in suits involving property interests, as to defendants who are nonresidents or whose whereabouts were unknown and as to those who avoid service, and although such substituted service is designed to result in conveying notice, the fact that actual notice does not result therefrom does not vitiate the substituted service.

Therefore, in the instance of a sale by a repairman lien holder actual notice could be impracticable, such as when the whereabouts of the owner or of the holder of a security interest are unknown. .Moreover, although the security interest holder in this case was holding an inferior lien which was of record in Oklahoma, not all security interests which could be outstanding and inferior to the repairman’s lien are recorded. The repairman-lienor would have no way of knowing whether any such security interests were outstanding or the name and whereabouts of the holders, yet under the majority holding in this case, although the law provides otherwise, the sale without actual notice to such (unknown) holders of inferior security interest would not be free and clear thereof but would be subject thereto. As a practical result no effective sale could be expected to be made as a purchaser would never know whether or not there were such outstanding security interests and the amounts thereof.

The problem here was that the sale of the aircraft, which according to its cost and the amount thereof remaining unpaid, makes it appear the value of the plane was substantially in excess of $50,000.00, but the sale was only for $900.00, the amount of the repairman’s charge against it. While inadequacy of sale price generally is not ground to set aside a forced sale, in an extreme instance such as this, when the sale was for an amount so inadequate as to shock the conscience of the court and obviously to indicate that the sale was not one for value as intended by law, the security interest holder could have had the sale set aside. Instead it filed suit to foreclose its inferior lien, treating the purchaser not as a purchaser of the property but as being only an assignee of the repairman’s lien, which it then paid off.

My dissent is not because of the result, but from the ruling that the statutory provision for sale by a repairman lien holder on the notice of sale as prescribed is unconstitutional, and for the court’s adding a proviso or requirement for actual notice in order for the statute to be effective against the owner and those claiming under him.

The statute requires that prior to sale the repairman must have retained possession for three months after his charges became due. Possession by the repairman of the property of another person is notice to others of the rights of the possessor. Here the owner notified the security interest holder that it was defaulting on the security interest obligation, and was abandoning the property, and directed the security interest holder to get the plane, giving the place where it was located. The sale was not held until seventeen days later. In the interval the security interest holder was thus placed on inquiry, which if pursued would have afforded it protection.

The security interest holder did not seek to obtain the plane until approximately a week after the sale.

I would hold the statute is constitutional, and that a sale thereunder for value would pass free and clear title to the purchaser which is what the law provided for, but that in this case the sale was so grossly improvident in amount as to render it subject to being set aside.

      . See also First National Bank of Glendale v. Sheriff of Milwaukee County, 34 Wis.2d 535, 149 N.W.2d 548 (1967).


author: BOARDMAN, Acting Chief Judge.

text:
    Ione M. Jessup ROTHENHEBER, Appellant, v. Donald C. JESSUP, Appellee.
    No. 78-73.
    District Court of Appeal of Florida, Second District.
    July 12, 1978.

      William H. Shields and Michael A. Gen-naro of Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellant.
    Julian D. Clarkson of Holland & Knight, Fort Myers, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant/wife appeals the denial of her “MOTION FOR MODIFICATION” requesting the court to modify the final judgment of dissolution of marriage between the parties by requiring appellee/husband to pay her the amount due on the mortgage of the former marital home, at the time the mortgage was satisfied, at a monthly rate equal to the payments he had been paying to the mortgagee bank.

On September 25, 1970 the parties entered into a property settlement agreement. Subsequently, they were divorced and the agreement was ratified, approved, and confirmed by the trial court and was attached to and made a part of the final judgment of divorce dated October 19, 1970. The agreement in pertinent part provided:

1. Wife is to have the exclusive right, title and interest in and to the 1969 Ford LTD owned by the parties. Husband expressly agrees to transfer the title to the said automobile to Wife, and Husband expressly agrees to make the payments on the said automobile as they become due and payable until the said automobile is fully paid for.
2. Wife is to have the exclusive right, title and interest in and to the boat and related equipment owned by the parties. Husband expressly agrees to transfer the title to the said boat to the Wife, and to be responsible for the payments thereon until the said boat is completely paid fro. [sic]
3. Husband expressly agrees to quitclaim his right, title and interest in and to the marital home of the parties, more particularly described as:
Lot 18, PORT EDISON SUBDIVISION, a subdivision, according to the map or plat thereof on file and recorded in the office of the Clerk of the Circuit Court of Lee County, Florida, in Plat Book 11, Page 19. together with the household furnishings and equipment therein. Husband expressly agrees to make the house payments on the said house until the same is completely paid for. Wife agrees to be responsible for property taxes and maintenance of the premises. Husband agrees to keep the real property insured to its full insurable value.
4. Wife expressly agrees to release in favor of Husband any right, title or interest which she may have in Husband’s business known as D & D Machine Specialties, Inc., with its principal place of business at 2089 Central Avenue, Fort Myers, Florida, (emphasis added)

There was no appeal from the final judgment of divorce.

Sometime after the parties were divorced, the wife sold the marital home and executed an agreement for deed to the purchasers. The husband continued to make the mortgage payments to the mortgagee. In November 1977 the purchasers, under the agreement for deed, desired to sell the property or refinance it and pay off the existing mortgage. The wife, anticipating that satisfaction of the mortgage would terminate the husband’s obligation to pay for the house, filed the motion to modify at issue. It appears that the mortgage held by the bank has been paid in full.

In its order the trial court found that the husband “is under no obligation to make payments on account of the mortgage encumbering the dwelling house to or for the Wife except as specifically set forth in the Stipulation, dated September 25,1970” (emphasis added).

Appellant contends that the ruling of the trial court deprives her of fixed property rights. Appellee, on the other hand, contends that the phrase in the agreement “until the same is completely paid for” contemplated a specific termination date upon which his obligation to make further payments ceased. We agree with the wife.

At the outset we point out that neither the property settlement nor the final judgment of divorce requires that the wife live in the marital home nor is she prohibited from selling it at any time. Neither instrument expressly provides that the husband’s obligation to completely pay for the house is discharged if the mortgage is prematurely paid in full by another party. Had the husband intended to be relieved from his obligation for the mortgage debt upon premature satisfaction of it or any other event it would have been a simple matter for him to have insisted that such a provision be included in the agreement.

We are aware that although a court has authority to modify a decree for “pure” alimony or for support and maintenance in lieu of alimony it does not have the power to modify a provision settling property rights between the parties. Horton v. Horton, 330 So.2d 69 (Fla. 1st DCA 1976). A property settlement agreement voluntarily entered into by the parties fixes their property rights in accordance with their agreement. Sistrunk v. Sistrunk, 235 So.2d 53 (Fla. 4th DCA 1970).

The trial court in the case before us was correct in its finding that the husband’s obligation to make the mortgage payments was as specifically set out in the property settlement agreement and that the agreement could not be modified. It is true that the attorney for the wife filed an instrument styled a motion to modify the final judgment, but in consideration of the substance of the instrument, we conclude that the wife was actually attempting to enforce the provisions of the agreement.

It is well settled that property settlement agreements are to be construed and interpreted as other contracts. According to the clear and unambiguous terms of the parties’ agreement the wife agreed to convey her interest in the husband’s business to the husband, and the husband in return agreed to transfer his interest to the wife in their boat, automobile, and marital home, assuring the wife that he would pay the outstanding indebtedness on each until fully paid for. To permit the husband to be discharged from liability as to the unpaid balance on the mortgage because of an occurrence not envisioned or contemplated by either party would indeed result in a modification of the agreement of the parties and take away from the wife a benefit clearly agreed to by the parties as reflected in their agreement. Finally, under the facts presented here and in light of the applicable case law the wife should be granted such relief as will preserve the property rights fixed at the time the property agreement was executed.

The order is reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

OTT and DANAHY, JJ., concur.


text:
    T. J. SIMS, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-1833 and 77-1834 Consolidated.
    District Court of Appeal of Florida, Second District.
    July 12, 1978.
    Jack 0. Johnson, ■ Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant’s probation supervisor filed affidavits charging appellant, who was on probation in two separate cases, with violating conditions (2), (4), (7), (10), and (14) of his probation. At the hearing on the affidavits, the trial court heard evidence of violations of conditions (2), (7), (10), and (14) and then revoked probation. We affirm that revocation, but we agree with appellant that there is an imperfection in the orders revoking probation.

The orders state that appellant was guilty of violating conditions (2), (4), and (7). However, since the court did not hear evidence concerning a violation of condition (4) it should now remove any reference to that condition. See Brewster v. State, 352 So.2d 1267 (Fla.2d DCA 1977).

Accordingly, we remand the case for correction of the revocation orders as expressed in this opinion. Appellant need not be present for that purpose.

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


text:
    Charles CHURCH, Appellant, v. STATE of Florida, Appellee.
    No. 77-2027.
    District Court of Appeal of Florida, Second District.
    July 12, 1978.
    Jack O. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court. However, the present sentence does not specify the amount of credit for time served as Section 921.161(1), Florida Statutes (1975) requires. Knight v. State, 349 So.2d 232 (Fla.2d DCA 1977). Therefore, we remand the case for correction of sentence, and appellant need not be present at that time.

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


text:
    Gerald Francis VANORMAN, Appellant, v. STATE of Florida, Appellee.
    No. 77-1794.
    District Court of Appeal of Florida, Second District.
    July 12, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court. However, the present sentence contains the phrase “hard labor” which is improper. Knight v. State, 349 So.2d 232 (Fla.2d DCA 1977). We remand the case for correction of sentence. Appellant need not be present at that time.

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


author: BOARDMAN, Judge.

text:
    Sandor KOLTAY, Appellant, v. STATE of Florida, Appellee.
    No. 77-1930.
    District Court of Appeal of Florida, Second District.
    July 14, 1978.
    Charles R. Scully, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant Sandor Koltay was charged in a one count information with violation of Section 812.021, Florida Statutes, the pertinent part of which alleged:

SANDOR KOLTAY, sometimes known as Alec Koltay . . . did take from the possession of the State of Florida, through its agent, John K. Kyle, with the intent to unlawfully deprive certain property, to-wit [sic]; $218.40, lawful money of the United States of America, and an R.C.A. picture tube, type 25VABP22, date coded 72-48, by making false representations or pretense or false token to the said John K. Kyle the necessity for replacement of parts and labor for their installation and thereafter did secure the described property with the intent to unlawfully deprive. .

In essence appellant was charged with grand larceny by obtaining property by false pretenses. He pled not guilty and after trial by jury was found guilty of attempted grand larceny, a lesser included offense. He was sentenced to serve 120 days in the county jail and allowed credit for time served in jail awaiting trial. This appeal timely followed. We reverse.

Appellant has presented five points on this appeal for our consideration. After review in light of the applicable law, we conclude that only one point has merit. Appellant contends that the trial court erred, and we agree, in refusing to give an instruction on the essential elements necessary to convict him of the crime for which he was charged, and that as a result the jury was confused and unable to properly consider the case. In Paulk v. State, 344 So.2d 304 (Fla. 2d DCA 1977) we reiterated the essential elements of the crime of false pretense enumerated in Finley v. State, 152 Fla. 396, 12 So.2d 112 (1943): (1) false representation of a past or existing fact; (2) knowledge of its falsity; (3) intent to defraud; (4) reliance on the misstatement by the other party; and (5) surrender by the other party of property because of the representation.

At the charge conference the state requested the following instruction:

Fraud is committed when the defendant has made a false representation of a past or existing fact, that he knew of its falsity, that he did it with intent to defraud and that there was reliance on the false statement by the consumer and a loss of property or money by the consumer as a result of the false statement.

Counsel for appellant requested the following instruction:

Requested instruction No. 1:
The essential elements of the crime of larceny which must be proved beyond a reasonable doubt before there can be a conviction in this case are that:
1. There must be represented a past or existing fact or circumstance by the defendant to another for the purpose of obtaining property from the latter.
2. The representation must be false in fact.
3. The representation must have been made with knowledge of its’ [sic] falsity.
4. The representation must have been made with the intent to deceive the other party and the intent to induce the other party to part with his property by the use of false and deceptive means.
5. The representation must have been believed by the other party.
6. The other party must have parted with his property to the defendant because of the representation.

Both of the instructions were denied. The trial court, over appellant’s counsel’s timely objection, charged the jury in part as follows:

The charge contained in the information is larceny and, among other things, Chapter 812.021 of the Florida Statutes provides:
‘The crime of larceny, or stealing, as it is commonly called, may be committed in several ways.’
For the purpose of this case:
‘Any person who with intent to unlawfully deprive or defraud the true owner of his property or of the use and benefit thereof, or to appropriate the same to the use of the taker, or any other person obtains any property from the true owner, or any other person by color or aid of any fraudulent or false representations or pretense, or any false token or writing, or having in his possession, custody, or control as a person authorized by agreement or by competent authority to hold or take possession, custody, or control of any property appropriates the same to his own use or that of any other person other than the true owner or person entitled to the benefit thereof shall be guilty of larceny.’
The essential elements of the crime of larceny which must be proved beyond a reasonable doubt before there can be a conviction in this case are that the defendant, having lawfully procured possession of or been entrusted with the property of the person alleged in the information, did unlawfully convert that property to his own use or the use of another without the consent of the person alleged in the information.

We submit that the members of the jury could very well have been misled and confused by the instructions as given. Appellant had a right to have the jury instructed in clear and plain language on each and every essential element of the specific crime charged. The failure of the trial court to instruct the jury on the essential elements of the crime charged adversely affected the substantial rights of appellant and, therefore, cannot be regarded as harmless error.

REVERSED and REMANDED for a new trial.

HOBSON, Acting C. J., and DANAHY, J., concur.


text:
    FIRST NATIONAL BANK OF SEARCY, ARKANSAS, a National Banking Corporation, Appellant, v. Joseph P. COLLINS and Geneve H. Collins, his wife, Appellees.
    No. 77-1978.
    District Court of Appeal of Florida, Second District.
    July 14, 1978.
    C. Philip Campbell, Jr. of Jacobs, Robbins & Gaynor, St. Petersburg, for appellant.
    Lemuel S. Hunnicutt, St. Petersburg, for appellees.
   PER CURIAM.

Appellant seeks to appeal an order dated November 3, 1977 which provides that the appellees’ motion to dismiss and motion for summary judgment are granted. This is not a final decision, order, judgment, or decree within the contemplation of Rule 3.2(b) of the Florida Rules of Appellate Procedure. We point out that this case is not one which formerly would have been cognizable in equity, therefore the order is not subject to an interlocutory appeal. Fla. R.App.P. 4.2(a).

Accordingly, we have no jurisdiction, and this appeal is hereby dismissed sua sponte. Rizzuto v. DiPaolo, 357 So.2d 490 (Fla. 2d DCA 1978); Arnold v. Brady, 178 So.2d 732 (Fla. 2d DCA 1965).

DISMISSED SUA SPONTE.

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


text:
    Larry P. SUMMERLIN, Appellant, v. STATE of Florida, Appellee.
    No. 77-1903.
    District Court of Appeal of Florida, Second District.
    July 14, 1978.
    Jack O. Johnson, Public Defender, and James R. Wulchak, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

On June 28, 1977 an information charged that appellant and a co-defendant committed a robbery on April 3, 1977, during the course of which “the said (co-defendant and appellant) did carry a deadly weapon, to wit: A FIREARM.”

Appellant entered a plea of not guilty. On August 15, 1977 another plea hearing was held with an assistant state attorney and counsel for the appellant present. Appellant’s plea was changed to nolo conten-dere. Sentence was deferred pending receipt and review of a pre-sentence investigation.

On October 7, 1977 the co-defendant and appellant came before the court for sentencing. The court announced its intention to withhold adjudication and place the co-defendant and appellant on probation. The assistant state attorney objected on the grounds that a mandatory three year sentence was required pursuant to Section 775.087(2), Florida Statutes (1976). After considerable colloquy between the court, the assistant state attorney and appellant’s counsel the hearing was continued for several hours and then resumed later the same day. The court and appellant’s counsel were clearly of the impression that appellant was pleading to the lesser offense of robbery and that the state either had abandoned or was unable to prove the firearm violation. The state insisted that the plea of nolo contendere having been accepted there was no alternative for the court but to enter the mandatory three year sentence. At the conclusion of the hearing the court, over the state’s objection, announced that it was either striking or dismissing that portion of the information dealing with a firearm violation. The trial court entered its order withholding adjudication and placing appellant on probation for a period of two years.

Thereafter, the state filed a motion for correction of the sentence pursuant to Fla. R.Crim.P. 3.800. After a hearing on this motion the court granted the state’s motion and imposed the mandatory three year sentence. Under the prevailing confusion we hold that the appellant’s change of plea was not voluntarily entered and we, therefore, set aside the judgment and sentence and remand with directions that the court afford the appellant the opportunity to withdraw his plea of nolo contendere.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.


author: PER CURIAM. McCORD, Chief Judge,

text:
    K. R. M., a child, Appellant, v. STATE of Florida, Appellee.
    No. JJ-79.
    District Court of Appeal of Florida, First District.
    July 18, 1978.
    Michael J. Minerva, Public Defender, and Marva Alexis Davis, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review and reversal of an adjudication of delinquency on a charge of first degree arson. Damage to a “structure” is an essential element to the crime proscribed by F.S. 806.01. “Structure” is specifically defined by F.S. 806.-01(3) as meaning “any building of any kind, any enclosed area with a roof over it, and any vehicle, vessel, or aircraft.” A reading of the record sub judice reveals substantial evidence of appellant’s misuse of fire and is certainly sufficient to sustain a finding that he willfully and maliciously, by fire, damaged personal property within a structure. However, the essential element of damage to a structure, as defined in the statute, is absent. Had appellant’s adjudication of delinquency been on a charge of criminal mischief, proscribed by F.S. 806.13, we would affirm because we find the other points raised by appellant to be without merit.

Reversed and remanded for further proceedings consistent herewith.

BOYER and MELVIN, JJ., concur.

McCORD, C. J., dissents.

McCORD, Chief Judge,

dissenting.

Although the damage was not great, it is clear from the evidence that there was some damage to fixtures which were a part of the building. I would affirm and, therefore, dissent.


text:
    Robert P. WAGES, C. P. Watson Co., Inc. and United States Fidelity & Guaranty Company, Appellants, v. Frank SNELL, and his wife, Thelma Snell, Appellees.
    No. FF-416.
    District Court of Appeal of Florida, First District.
    July 18, 1978.

      J. Robert Hughes of Barron, Redding, Boggs & Hughes, Panama City, for appellants.
    Jackson G. Beatty, Tallahassee, for appel-lees.
   PER CURIAM.

Appellants, defendants below, claim that the trial court committed reversible error by admitting into evidence mortality tables for the purpose of showing Appellee Frank Snell’s life expectancy and by instructing the jury so as to permit a verdict of damages on the basis of permanent injuries. Appellants claim that there was insufficient evidence of any permanent injury sustained by Mr. Snell.

Mr. Snell was injured in an automobile accident on September 12, 1975, he then being 67 years old. The injuries appeared at first to be relatively minor. However, during the next month, he suffered from various symptoms including severe headaches, nausea, vomiting and a staggering gait. On one occasion he fell to the floor and was unable to get up without assistance. Following the fall, he sustained a loss of consciousness and was taken to a hospital in Dothan, Alabama on October 11, 1975. His condition was diagnosed as bilateral subdural hematomas described as bleeding on the outer portion of the brain which caused a pocket of blood to form between the brain and the skull and resulted in pressure on the brain. A neurosurgeon drilled four holes approximating the size of a penny in Mr. Snell’s skull, two on each side, and left a closed continuous drainage system to drain the blood so as to permit the brain to re-expand and take up the space occupied by the hematomas. The closed drainage system was removed three days later. The surgery was effective in improving Mr. Snell’s condition such that he was discharged from the hospital on October 23, 1975.

At the trial on January 31, 1977, Mr. Snell, his wife and neighbors testified concerning his activities and capabilities after his discharge from the hospital in comparison with his activities and capabilities before the accident. There was testimony that Mr. Snell had been a farmer for many years and that, since the accident, he had been unable to perform even routine farming chores. There was also evidence that Mr. Snell was noticeably slower mentally during the sixteen months between the accident and the trial than before the accident. During his testimony, Mr. Snell displayed to the jury the indentations in his head caused by the four penny size holes which remained in his skull.

Mr. Snell’s neurosurgeon testified that two brain wave studies were done, one on October 20, 1975 shortly after the surgery and the other some ten months later. He testified that the first EEG was abnormal as a result of the injury. He stated that the second EEG still showed abnormality bilaterally representing “cortical dysfunction of a diffuse nature.” The neurosurgeon further testified:

“[Wjhat we are losing here is the higher integrated functions: thinking, mentation, understanding, recognition of a hazardous situation, how long he can hold out, how good your arithmetic is, how well you can balance your checkbook, how much you understand what you read in the paper . . how much mentality is left . . . .”
* * * * * *
“To me the abnormal EEG suggest that some of the mental changes and reduced capabilities can be attributable to the accident and the subsequent blood clot.”
* * * * * *
“Certainly, arterio-sclerosis can produce all these things, all these changes, but you have to consider what I feel is the probability that acceleration of removal from the work-force was precipitated by the accident.”

The neurosurgeon stated that if the change had been attributable to the arterio-sclerotic condition, the arterio-sclerotic changes would have been “more insidious and slower.”

Appellants argue that before a jury may assess damages for any permanent injury, it must appear that the injury is reasonably certain to impair the health and earning capacity of the injured person in the future, and not merely that it will apparently affect the health and earning capacity of the injured party, and that mortality tables are not admissible in the absence of evidence of permanent injury, relying upon Baggett v. Davis, 124 Fla. 701, 169 So. 372 (1936); Ward v. Stanley, 130 Fla. 642, 178 So. 398 (1938); Seaboard Air Line Railroad Co. v. Ford, 92 So.2d 160 (Fla.1956). We agree with the above propositions of law urged by Appellants. However, we disagree with Appellant’s position that the evidence at trial failed to satisfy the above requirements. The testimony referred to above of the lay witnesses and the neurosurgeon was sufficient from which the jury could find that Mr. Snell sustained permanent injury and that his health and earning capacity were permanently impaired.

We therefore conclude that the trial court did not err in admitting the mortality tables as evidence of Mr. Snell’s life expectancy and that the jury was properly instructed as to the various elements of “future” damages.

Appellants complain also that error occurred by the court’s refusal to submit special jury forms to the jury pertaining to comparative negligence, relying upon Lawrence v. Florida East Coast Railroad Co., 346 So.2d 1012 (Fla.1977). The Lawrence opinion, filed subsequent to the trial of this cause, held the requirement of special verdicts in comparative negligence cases was prospective only from the effective date of the decision. Lawrence v. Florida East Coast Railroad Co., supra, at 1017. Clearly then it had no application to this case.

Appellants also urge that certain examples included in the court’s instructions, pertaining to comparative negligence, were error. Just after giving the standard instruction concerning comparative negligence, the trial court gave explanatory examples, using $100 as a base figure to explain the percentage of 80% negligence and 20% negligence, and 60% to 40% negligence. It is clear, from the context of the statements made, the charges were explanatory and were only examples. We reject the argument they were error. The standard for determining error in jury instructions is whether the instructions as a whole fairly state the law. Grimm v. Prudence Mutual Cas. Co., 243 So.2d 140 (Fla.1971). Even if the examples were error, however, it is clear from the record that appellants failed to make timely objections. At the conclusion of the instructions given, no objection was stated in the record by either counsel and it was not until the jury retired to begin its deliberations that objection was made.

This case is very similar in its facts to Page v. Cory Corp., 347 So.2d 817 (Fla. 3rd DCA 1977), where counsel for one of the parties objected to the giving of a comparative negligence charge to the jury after the jury had retired. The Third District Court of Appeal held that since counsel did not object to the charges until the jury was in the process of considering its verdict, the objection was not timely and could not be considered on appeal.

We also conclude that appellants’ third point, alleging the evidence is insufficient to support the verdict of the jury, is without merit.

AFFIRMED.

ERVIN, Acting C. J., MELVIN, J., and NIMMONS, RALPH W., Jr., Associate Judge, concur.