author: OWEN, Judge.

text:
    Paris G. SINGER, Appellant, v. Jane E. SINGER, Appellee (two cases).
    Nos. 73-671, 73-1254.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1975.
    Rehearing Denied Aug. 19, 1975.

      Harry G. Carratt of Morgan, Carratt & O’Conner, P. A., Ft. Lauderdale, for appellant.
    Ray H. Pearson and Sherryll M. Dunaj of Frates, Floyd, Pearson, Stewart, Proen-za & Richman, P. A., Miami, for appellee.
   OWEN, Judge.

The issues on this appeal from a final judgment of dissolution of marriage, only two of which merit discussion, center on the proper construction and effect to be given the parties’ antenuptial agreement executed by them on the eve of their marriage eight years prior to the filing of this suit.

In the final judgment the court made the following specific finding:

“The prenuptial contract entered into between the parties is a valid and binding agreement. The Court, at the conclusion of the Petitioner’s case, entered a partial directed verdict on the issue of said prenuptial contract, finding that the Agreement met the terms and provisions of Del Vecchio v. Del Vecchio, Fla.1962, 143 So.2d 17, and numerous decisions of our Appellate and Supreme Courts in the Posner v. Posner cases.”

No issue is raised on this appeal as to the validity of the agreement.

As to alimony, the relevant portions of the antenuptial agreement provided that in the event of a divorce prosecuted by either party the husband would pay to the wife as alimony the sum of $500.00 per month, except that “in the event that Jane, as plaintiff, should successfully prosecute a cause for divorce from Paris on the grounds of adultery, then Paris agrees to pay to Jane and Jane agrees to accept from Paris the sum of $1,200.00 per month as permanent alimony”.

Appellant husband initiated the dissolution proceedings alleging the wife’s adultery. The wife’s second amended counterclaim upon which the case went to trial did allege, among other things, the husband’s adultery, but this allegation was ordered stricken by the court prior to trial and was never reinstated. Although there was evidence tending to show that the husband was guilty of adultery, the record is clear that within the contemplation of the language of the agreement, the appellee-wife did not “successfully prosecute a cause for divorce from Paris on the grounds of adultery”.

Notwithstanding the clear provisions of the agreement and the court’s finding that the same was valid and binding, the court made the following finding relative to alimony :

“The Court finds that the sum of Twelve Hundred Dollars ($1,200.00) monthly alimony as provided in a portion of the Agreement, the terms of which were stipulated to by the Petitioner/Husband, is a reasonable and proper sum of alimony under the circumstances of the parties at this time.”

And, in ordering the husband to pay that sum, further stated in the final judgment:

“The Court recognizing and acknowledging that it is not bound by the terms and provisions in the Agreement as to alimony, has reviewed the entire circumstances of needs, ability to pay and the standard of living of the parties, and finds at this time the payment of Twelve Hundred Dollars ($1,200.00) a month by Petitioner to Respondent as permanent, periodic alimony is a reasonable, just and proper sum.”

As his first point on appeal, the husband contends that the court erred in awarding $1,200.00 a month alimony.

Since the court did not find, nor would the record sustain the conclusion, that ap-pellee-wife had “successfully prosecuted a cause for divorce ... on the grounds of adultery”, the court’s award to the appellee of $1,200.00 a month permanent alimony, in the face of the clear and unambiguous contractual provision for $500.00 per month alimony, is susceptible of only two reasonable explanations.

One such explanation (and, the more likely one, judging by the language of the final judgment) is that the trial court simply believed it was in no way bound by the alimony provisions of the agreement, but to the contrary was free to exercise its discretion to determine alimony under Fla. Stat. § 61.08 (1971). While there is a respectable body of case law standing as precedent for that principle, we think those cases must now be either clearly distinguished from, or considered as overruled by, the Posner cases, infra. For that reason we discuss these several cases hoping to thereby clarify an area in which we perceive some confusion presently exists.

The case of Dawkins v. Dawkins, 172 So.2d 633 (2nd DCA Fla.1965) involved a postnuptial agreement. Therein, the wife had expressly waived alimony. The trial court refused to accept that part of the agreement which waived alimony because the court found that under the circumstances of the case that part of the agreement was “unfair and overreaching”. The appellate court affirmed and announced the principle that the chancellor was vested with the sole discretion to settle questions relative to alimony and the parties could not by contract divest him of such discretion.

The case of Gelfo v. Gelfo, 198 So.2d 353 (3rd DCA Fla.1967) also involved a postnuptial agreement which the trial court found to be unconscionable so far as it required the wife to waive alimony. Citing as authority the Dawkins case, supra, the appellate court affirmed although it acknowledged the apparent conflict with such cases as Miller v. Miller, 149 Fla. 722, 7 So.2d 9 (1942); Bare v. Bare, 120 So.2d 186 (3rd DCA Fla.1960); D’Amato v. D’Amato, 176 So.2d 907 (3rd DCA Fla.1965); and Pemelman v. Pemelman, 186 So.2d 552 (2nd DCA Fla.1966).

In Posner v. Posner, 206 So.2d 416 (3rd DCA Fla.1968), the trial court had upheld the validity of an antenuptial agreement and had awarded the wife alimony in accordance with its terms. The appellate court, citing both Dawkins and Gelfo, held that the alimony provision of the antenup-tial agreement was not binding on the chancellor in determining the award of alimony, and remanded for an award of alimony based upon an exercise of the chancellor’s sound judicial discretion. The Supreme Court granted certiorari, Posner v. Posner, 233 So.2d 381 (Fla.1970), and quashed the decision of the District Court of Appeal, holding that the antenuptial agreement, if entered into under the stringent rules prescribed in Del Vecchio v. Del Vecchio, supra, was a valid and binding agreement between the parties at the time and under the conditions it was made, subject to modification upon a showing of changed circumstances and conditions as provided in Fla.Stat. § 61.14. Subsequently, the Posner case was again before the Supreme Court on a petition for writ of certiorari, Posner v. Posner, 257 So.2d 530 (Fla.1972). The Supreme Court reiterated the binding effect of the antenuptial agreement when entered into under the conditions outlined in the Del Vecchio case and confirmed that any modification thereof would be based upon a showing of change of circumstances occurring between the time of the execution of the agreement and the time of the hearing.

While the Posner case involved an antenuptial agreement, the Supreme Court significantly did not draw any distinction between antenuptial and postnuptial agreements and, in fact, affirmatively indicated an intent to treat alike the two types of contracts. Despite this indication from the Supreme Court that alimony provisions in postnuptial agreements should be treated no differently than antenuptial agreements, and its holding that alimony provisions in antenuptial agreements are binding subject only to modification due to changed circumstances, the post-Posner cases involving alimony provisions in postnuptial agreements continued to follow the pre-Posner principle, i. e., that a court is not bound at all by such provisions. See, Van Boven v. First National Bank in Palm Beach, 240 So.2d 329 (4th DCA Fla.1970); Spencer v. Spencer, 242 So.2d 786 (4th DCA Fla.1970), cert. denied 248 So.2d 169 (Fla.1971); Risteen v. Risteen, 280 So.2d 488 (3rd DCA Fla.1973), cert. denied 283 So.2d 563 (Fla.1973); Harris v. Harris, 291 So.2d 95 (1st DCA Fla.1974). The cited cases are clearly in direct conflict with the Supreme Court decision in Posner v. Posner, 233 So.2d 381 (Fla.1970), unless it can be said that they are distinguishable because they involved postnuptial agreements whereas the Posner case involved an antenuptial agreement. In Bailey v. Bailey, 300 So.2d 294 (4th DCA Fla.1974), we took the view that this was not a valid distinction. While we think our view in the Bailey case was correct, it does not enter into our decision in the instant case since we are here dealing with an antenuptial agreement squarely within the Posner principle. Thus, we conclude that the trial court, having found the agreement to be valid and binding under the Del Vecchio guidelines, was bound by the alimony provisions thereof, subject to modification only upon a showing under Fla.Stat. § 61.-14 (1973), of a change of circumstances subsequent to the execution of the agreement.

The only other reasonable explanation for the trial court’s award of alimony in excess of the alimony provision of the agreement is that the trial court concluded that there had been a showing of a substantial change of circumstances since the execution of the agreement so as to justify modification. However, the court did not make any finding of a change of circumstances and the record does not disclose evidence of any change of circumstances that could not be said to have been reasonably contemplated by the parties at the time of entering into the agreement. Substantially all of appellant’s income was from various trusts or assets disclosed by the antenuptial agreement. While it is true that appellant’s income fluctuated widely over the several years of the marriage, as a result of which he was able to provide appellee with a far more affluent lifestyle than was the case at the time of the marriage, his fortunes had declined to the point where, at the time of trial, his financial circumstances were not substantially different from that which they had been at the time of the execution of the agreement. But, as we have already noted, the vicissitudes of his fortune in the interval were only that which can be said to have been reasonably contemplated from the nature of his assets, all fully disclosed before the agreement was executed. We conclude that there were no changed circumstances which would provide a basis for modifying the agreement.

Concluding, as we do, that the court was bound by the alimony provisions of the agreement absent a sufficient showing of a substantial change of circumstances to justify modification, the permanent alimony award of $1,200.00 per month was error and such permanent alimony award is modified to the sum of $500.00 per month in accordance with the terms of the agreement.

In accordance with the terms of the aforesaid agreement, the final judgment ordered appellant to transfer to ap-pellee the title to a certain Rolls Royce automobile which was in appellee’s possession. The agreement, however, required only transfer of title and made no reference to any obligation on the part of appellant to discharge any liens which might exist against the automobile. That portion of the final judgment requiring appellant to discharge any existing lien against the automobile placed an obligation on the husband in excess of that provided by the agreement, and was therefore in error.

Appellant’s remaining points, concerning disposition of the proceeds of the sale of the parties’ former home, appellant’s obligation to appellee for money seized from her account by the Internal Revenue Service, and the attack on the amount of attorneys’ fees and costs, are found to be without merit. As to the award of permanent alimony and the lien against the automobile, the final judgment is modified to conform to the views herein set forth, and as thus modified, the final judgment is affirmed.

Affirmed, as modified.

WALDEN, C. J., and MAGER, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Jose Lopez RODRIGUEZ, Appellant, v. DICOA CORPORATION, a Florida Corporation, Appellee.
    No. 74-1471.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Aug. 29, 1975.

      Taylor, Brion, Buker, Hames & Greene, Miami, and Arnaldo Velez, Hialeah, for appellant.
    Noriega & Bartel and Paul Levine, Miami, for appellee.
    Before BARKDULL, C. J., PEARSON, J., and DREW, E. HARRIS (Ret), Associate Judge.
   DREW, E. HARRIS (Ret.), Associate Judge.

Dicoa Corporation sued Jose Rodriguez on a promissory note. Writ of Attachment was issued and served, along with the Complaint, on the wife of the defendant, who, at that time paid the sheriff the full amount due. Such payment was endorsed on the Writ and filed in the cause. Three weeks later Dicoa Corporation filed in the same cause an “Amendment to Complaint” seeking recovery on numerous additional promissory notes alleged to be- either signed by or unconditionally endorsed by defendant Rodriguez. The Amendment contains no allegation connecting the causes of action therein sued on with the original cause of action alleged in the original Complaint and on which the original Attachment issued. The only connection appearing in the pleadings is that the notes were demand notes in varying amounts payable by a corporation of which Rodriguez was President and endorsed by him personally and payable to Dicoa Corporation. Simultaneously with the filing of the “Amendment to Complaint” the plaintiff filed what is described in this common law action as a “Motion for Leave to Make Equitable Attachment”. In this Motion plaintiff alleged, in substance, that Rodriguez had perpetrated a fraud on it by paying off the original amount sued for and thereby preventing the sheriff from attaching and taking in his custody —and—for defendant’s protection — storing in a bonded warehouse, numerous valuable paintings, statues and other works of art. Plaintiff then alleges:

“Plaintiff has a number of other claims against this Defendant, reflected in its Amendment to Complaint for Damages of even date. All of these claims are based upon written proof in the form of signed promissory notes. Defendant is either the unconditional guarantor thereof (as he is in respect to the Count I note upon which payment has been made by the Defendant’s wife), or the maker thereof. In all instances, however, Plaintiff’s proof is virtually unrefutable.
“Now that the Defendant and his wife are aware of this litigation and the Plaintiff’s prior efforts to attach Defendant’s property to assure that Plaintiff will be able to recover upon its judgment herein, it may well be that the paintings, etc. have, since June 28, 1974, been already removed from the jurisdiction of this Court.
“If they have been so removed in the face of the sworn allegations in Plaintiff’s Motion for Attachment, such conduct amounts to fraud in respect to Plaintiff’s other claims, well known to be outstanding by the Defendant and his wife. As such, Defendant and his wife should be ordered to return this property to this jurisdiction so that it will remain available to answer to Plaintiff’s requested judgments on the remaining Counts of this action.
“If Defendant and his wife have not, in fact, since being notified of this action, attempted 'to remove the Defendant’s property out of State, Plaintiff requires interim relief during the pendency of Counts II through V, so as to assure that, prior to judgment on these additional Counts, the Defendant’s property above described is not fraudulently removed from this State.
“Plaintiff has previously posted an attachment bond, payable to the Defendant herein, in the sum of $11,700.00. That bond can and should be converted into an injunction bond to protect the Defendant not only in respect to the prior attachment effort, but in respect to the injunctive relief herein prayed. If necessary, Plaintiff would be willing to add to that bond an additional $3,300.00 in coverage so as to assure the Defendant of $15,000.00 in interim protection in the event that Plaintiff’s claims are not proven in this action.
“Plaintiff, however, does require the assistance of an equitable attachment to require the retaining of the property here-inabove described, within this jurisdiction, pendente lite; to prohibit it from being sold, transferred, encumbered or otherwise dealt with during the pendency of this action; otherwise, Plaintiff, when it recovers its anticipated final judgment herein, will have been defrauded in respect to its ability to recover against the property of this Defendant which was located in this State when this action commenced.
“Undersigned counsel further represents to the Court in respect to the above application, that he has personally inspected evidence furnished him by the within Plaintiff establishing that dollar for dollar consideration was given for the issuance and delivery of each of the notes sued upon in both the Complaint and the Amendment thereto. There would thus seem to be absolutely no legitimate defense to this action either in respect to the original Count or the additional Counts.
“Defendant’s unwillingness t.o allow- attachment of his goods, even in a Bonded Warehouse, has already been demonstrated in the clever tactic of prepayment that was utilized herein.
“This prepayment, at the same time constitutes sufficient demonstration from the Defendant and his wife that he well knows that he is indeed obligated to the Plaintiff in this action.
“Common sense dictates that one does not pay out some $6,000.00 in cash in response to an unlitigated claim unless one knows that the claim is well-founded; also that he has more to gain by not permitting the attachment.
“Defendant’s very own conduct, accordingly, suggests sound reason for equitable attachment.”

On this bizarre sworn motion the trial court, without requiring security of any kind, and, as is stated in the order “in the interests of justice and in order to preserve the status quo as it existed on the date of this action in respect to the property of the defendant herein within the jurisdiction of this Court, it is in order to grant plaintiff’s motion . . .”. The court then ordered that if the defendant or his wife had removed or caused to be removed “his paintings, sculptures and other works of art” that were in his apartment when the original levy was made that they or their agents, servants, etc., immediately return all of said personal property to said premises “and completely restore said apartment” to its condition as it existed on “the date of said attachment”. He also ordered the defendant to file a complete inventory of such articles “including not only a description of each item but defendant’s best and fairest statement of market value”. Then, the trial judge said:

“If the total value, placed upon these items, exceeds the sum of $5,850.00, the Court, upon motion filed and served and due notice to counsel for Plaintiff, will entertain a motion to increase bond which has heretofore been posted by the within Plaintiff in this action.”

The order also contained the following in-junctive language:

“Defendant, JOSE LOPEZ RODRIGUEZ, his wife, HILDA LOPEZ, and their agents, servants and employees, be and they are each hereby enjoined and restrained, temporarily, until further Order of this Court, from selling, transferring, encumbering, disposing of or removing from the apartment at 3929 Garden Avenue, Miami Beach, Florida, any of the paintings', sculptures and other works of art that were located therein on June 28, 1974 when the Sheriff of Dade County attempted to levy a Writ of Attachment thereon. If the property is presently intact and in the apartment, the prohibition against removal from the apartment will apply immediately. If the property has been removed from the property between June 28, 1974 and date, the prohibition against removal shall apply once the property has been returned to the apartment as above ordered. The prohibitions against sale, transfer, encumbrance or other disposition, shall apply in any event, irrespective of where the property may now be located. The Court notes that it has personal jurisdiction over the Defendant herein, who has appeared in this action through counsel.”

Also included in this order — without, so far as the record shows — any notice to the bondsman on the original Attachment Bond, was the following:

“The Attachment Bond heretofore posted by the Plaintiff, as principal, and Fidelity and Deposit Company of Maryland, as surety, shall continue in full force and effect, until discharged by Order of this Court, to include this supplemental injunctive order as well as the initial attachment effort. That is to say, it shall remain in full force and virtue not only in accordance with the initial conditions set out therein, but shall also stand as security to pay all costs and damages the Defendant may sustain in consequence of complainant improperly suing out the within supplemental order.”

When the defendant refused — or failed —to comply with the above order, the court granted plaintiff’s motion for contempt order, held the defendant in contempt and entered a default against defendant under the authority of Rule 1.-380(b)(2)(C), and provided “at plaintiff’s option this cause may proceed ex parte”. Following the entry of this default judgment and contempt order the court entered a final judgment for over $300,000.00. It is from this judgment that this appeal is taken.

We have delineated and quoted extensively from the record here because such disclosures contain the answer to this appeal.

No authority is required to support the statement that while our rules of procedure have been changed to substantially eliminate all distinctions between common law and equitable actions, the basic distinction between equity and law actions has been preserved. This was a typical action at law. The first complaint, the attachment and levy and the payment on the note sued on is clear proof of the adequacy of the common law remedy. “Equitable attachments” are, in some instances recognized in purely equitable actions, but such is not the case here. The order of the trial judge finds no support in the law or precedent. It was a gross abuse of judicial power under the disclosures of this record. The trial court substituted his concepts of “equity and justice”, for the clear provisions of the Statutes of this State relating to attachments. He ignored the provisions of the law relating thereto which are designed to provide protection both to the creditor and debtor. When the order in question was entered some three weeks after the defendant had discharged the debt sued on by payment the trial court was without a vestige of authority to order the return of any personal property moved from the premises. The defendant on discharge of the Writ was as privileged to move his possessions as he ever was. The other requirements of the order were equally as void of authority.

The default judgment and the final judgment flowing from and being founded on the void order bearing the title “Order on Pending Motions” heretofore discussed, are likewise void, of no effect, and we so hold.

Judges will nothing. They are instruments of the law. This concept is the essential essence of the sacred principle that ours is a government of laws and not of men. The great traditions of the judiciary in this nation have been founded on adherence to this principle and its component part, judicial self restraint. How much of our present difficulties and dilemmas is the result of either forgetting these truths or ignoring them nobody knows; but, it is inevitable that history will record the score.

The disclosures of this record should never have occurred. We hold that, assuming, but not deciding, because the question is not presented, that the trial court had any jurisdiction after the payment and discharge of the debt originally sued on, that the judgment herein appealed and the orders on which it is based are reversed and this cause remanded for further proceedings consistent with this decision and the applicable statutes and rules of Florida.

It is so ordered.

      . Apparently no attack was made on the propriety of this so-called amendment either from the standpoint of having no relation to the original cause of action or being filed after the original action had been terminated by payment.

      . The order reserved to a later date the matter of imposing sanctions.

      . This is a part of the discovery rule. We find no resemblance to the disclosures of this record and the rules relating to Discovery. Assuredly this rule is no authority for what was done.

      .1 Florida Jurisprudence — Actions—¶9, page 133, 134; also see Historical Notes to 1967 Rules, F.S.A., Volumes 30, 31, 32, 33 (1973 Revision) page 55 et seq.

      . Gammon v. Gammon, Fla.App., 301 So.2d 31 (1974).

      . Such payment fully discharged the defendant from all obligations under the Writ of Attachment.


author: PER CURIAM.

text:
    James M. REED, Appellant, v. Benjamin J. DI MASCOLO, Executor of the Estate of Mary T. Sweat a/k/a Mary Sweat, Appellee.
    No. 74-1475.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.
    Hunter & Atkinson and Stephen F. Bacen, Hollywood, for appellant.
    Byrd V. Duke, Jr., North Miami, for ap-pellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed on the authority of The Florida Bar v. Heller, Fla.1971, 247 So.2d 434; The Florida Bar v. American Legal and Business Forms, Inc., Fla.1973, 274 So.2d 225; In re Larson’s Estate, 92 Cal.App.2d 267, 206 P.2d 852.


text:
    Jerry Lee HETZEL, Appellant, v. The STATE of Florida, Appellee.
    No. 75-858.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1975.
    Jerry Lee Hetzel, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender tw withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of his appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Allen BRUSH, d/b/a Allen Brush Company, Appellant, v. CITY OF DE LAND, a Municipality of the State of Florida, Appellee.
    No. W-333.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1975.
    Edwin P. B. Sanders of Landis, Graham, French, Husfeld, Sherman & Ford, De Land, for appellant.

      C. Allen Watts of Mattingly, Fogle & Watts, De Land, for appellee.
   PER CURIAM.

This cause having been orally argued before the Court, the briefs and record on appeal having been read and given full consideration, and appellant having failed to demonstrate reversible error, the judgment of the lower court hereby appealed is

Affirmed.

RAWLS, Acting C. J., and MILLS and SMITH, JJ., concur.


text:
    P. E. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-769.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1975.
    P. E. M., a juvenile, no appearance for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Nathan ALTEIN et al., Appellants, v. SLAVIA, INC., a Florida Corporation, et al., Appellees.
    No. 75-262.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.
    Fink & Syna, Miami, for appellants.
    Sibley, Giblin, Levenson & Ward, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal by former tenants who claimed rights in a mortgage foreclosure proceeding. This particular foreclosure and the rights of some of the tenants have been dealt with by the Supreme Court of Florida in Sens v. Slavia, Inc., Fla.1974, 304 So.2d 438. The present appellants were not parties to the cited appeal.

We are concerned here with an appeal taken from an order dismissing the appellants’ subsequent claims against the equity of redemption owned by appellee, Sens. We hold that appellants’ rights are governed by the law as established in the above cited opinion and that the trial court correctly dismissed their claims to the surplus funds owned by Sens as purchaser of the equity of redemption.

Affirmed.


author: BOARDMAN, Acting Chief Judge.

text:
    STATE of Florida, Petitioner, v. Steven Allen McFARLANE et al., Respondents.
    No. 75-485.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
    E. J. Salcines, State’s Atty., and Arthur N. Eggers, Asst. State’s Atty., Tampa, for petitioner.
    Barry A. Cohen, Tampa, for respondent Steven Allen McFarlane.
    Ronald Edwin Perez, Tampa, for respondent James Emory Smith.
    William B. Plowman, Tampa, for respondent Robert Lynn Harrison.
   BOARDMAN, Acting Chief Judge.

The petitioner, State of Florida, has petitioned this court for a writ of certiorari to review certain orders entered by the circuit court on April 1, 1975, and April 10, 1975. The order of April 1, granted the respondents’ (Steven A. McFarlane, Robert Lynn Harrison, and James Emory Smith) motion to produce by directing the state to transcribe the testimony of certain witnesses who testified before the first Statewide Grand Jury for an in camera inspection. The order of April 10, denied the petitioner’s motion to disqualify the presiding judge.

The petitioner urges that the trial court erred in both of said rulings. The respondents, while not attacking the ruling of the court on their motion to produce, agree with the petitioner that the judge erred in not granting their motion to disqualify the presiding judge.

We have very carefully reviewed the several motions and pleadings filed in this cause by counsel for the respective parties and considered the applicable decisional law and the Criminal Rules of Procedure pertinent.

As to the disqualification of the presiding judge, we find that all parties have at one time or another filed motions to transfer the cause to another judge and motions to disqualify the judge. Were we called upon to transfer the cause and disqualify the judge solely on the basis of the matters raised in respondents’ supporting affidavits, which incorporate therein the motion of respondents to disqualify, we would not do so for the very reason that the allegations contained in said motions do not, in our judgment, set forth sufficient and adequate reasons to take such drastic action, and the allegations fall short of complying with Rule 3.230, RCrP. At this point, we conclude from the record that the Honorable Harry Lee Coe, III, Circuit Judge in and for the Thirteenth Judicial Circuit in and for Hillsborough County, could have presided over the trial in a fair and impartial manner. The record, however, shows that the petitioner likewise filed a motion to transfer and motion to disqualify the judge, the latter motion being supported by affidavits of two assistant state attorneys, assigning as grounds that the State of Florida could not receive a fair and impartial trial; and, that it feared that the judge had displayed a bias and prejudice toward the respondents and at least one of the attorneys for the defense; that reversible error had been built in the case in the event the state would be successful in convicting the respondents; and, that on appeal the appellate court would have no alternative but to reverse the cause.

We will not attempt to second guess the state’s reasoning, or question the propriety of its 'decision in filing the motion to transfer and motion to disqualify the judge. Suffice it is to say that inasmuch as all parties sought to try this cause before another judge, we feel, in view of the circumstances of this case and in an abundance of caution, that it is in the best interest of the parties that the cause be transferred so that another judge be substituted in his place and stead.

We turn now to the question posed by the state in which it is urged that the trial court committed reversible error in entering its order directing that the respondents were entitled to obtain the testimony of certain witnesses given before the Grand Jury. The pertinent provisions of said order are as follows:

ORDERED AND ADJUDGED that the testimony received by the First Statewide Grand Jury on September 18, 1974, which resulted in the indictment of above named defendants in companion case . . ., and the filing of the Information in the captioned case, be transcribed and an in camera review of that testimony be conducted by this Court to determine whether it should be produced under Rule 3.220, CrPR.

The motion to produce filed by the respondents in which they seek to compel this pretrial discovery failed to allege a predicate showing the reason that the requested testimony was relevant or necessary to the respondents in the trial of the case against them. The motion itself alleges that the respondents were requesting the desired information specifically on the law of the case of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

We have read Giglio, supra, and believe it to be clearly distinguishable on facts from the instant case. In the cited case, the assistant United States attorney did not disclose to the defendant either pretrial or at trial the fact that he had entered into an agreement with a coconspirator that if he would testify for the government at trial that he would not be prosecuted. No such allegation or charge is made in this case by the respondents against the state.

Respondents contend further that the ruling of the trial court should be affirmed on the authority of a decision of the Supreme Court of the United States in the case of Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). The Dennis decision dealt with a violation of a federal statute and did not pass upon a constitutional question. The parties in the instant case do not contend that an accused is entitled as a matter of constitutional right to pretrial discovery.

We do not feel bound to follow the law of Dennis, supra; but, on the other hand, follow the well-established law of Florida as enunciated in the case of State v. Gillespie, Fla.App.2d, 1969, 227 So.2d 550. We believe the following excerpt from Gillespie, supra, is applicable here and is disposi-tive of the question now being considered:

[I]n examining the respondent Gillespie’s motion upon which the order under review was entered, there was a mere naked demand for an order compelling disclosure of the desired evidence. No semblance of a sufficient predicate for such an order is apparent. Accordingly, the court was without authority to enter the broad and all-encompassing order before us. The entry thereof constituted a material departure from the existing principles of law and cannot be sustained.

We cannot accept the respondents’ contention that the testimony of a grand jury witness is a statement within the context of Rule 3.220 RCrP whereby respondents would automatically be entitled to its production upon demand. The Florida courts have consistently refused to require the disclosure of grand jury testimony absent the showing of a predicate for its production. Minton v. State, Fla.1959, 113 So.2d 361, and State v. Drayton, Fla.App.2d, 1969, 226 So.2d 469. We do not read the rule which was promulgated in 1972 as enlarging the principle of these cases. According to the committee note, Rule 3.220 was patterned in large measure after the ABA Standards for Criminal Justice relating to discovery and procedure before trial. Section 2.1(a) (iii) of these Standards specifically requires the production of “those portions of grand jury minutes containing relevant testimony of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial,” but Rule 3.220 does not contain similar language. The committee note further states that the definition of “statement” was derived from 18 U.S.C. § 3500. That federal statute specifically defines “statement” to include “a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.” Rule 3.220(a) (1)(ii), RCrP, which defines the word “statement,” tracks the applicable language of 18 U.S.C. § 3500 except that the foregoing reference to grand jury testimony is significantly omitted. The specific reference to grand jury testimony of the accused in Rule 3.220(a) (l)(v) also mitigates against the respondents’ construction of the rule.

Since the respondents did not lay á predicate, they are not entitled to the disclosure of the evidence they seek; and, failing to do so, we find that the trial court erred in ordering the state, under the factual situation involved, to produce the desired evidence. We, therefore, reverse the order of the trial court under review without prejudice to the respondents, in a proper proceeding, before the substituted judge, to attempt to lay a predicate showing the need of the respondents for the desired testimony and, thereby, permit the state to show, if it can, that the requested information should be restricted.

For the above-stated reasons, the petition for writ of certiorari is

Granted.

GRIMES and SCHEB, JJ., concur.


text:
    Russell Lawrence JONES, Appellant, v. STATE of Florida, Appellee.
    No. X-417.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1975.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee)
   PER CURIAM.

Affirmed. See Weeks v. State, Fla.App. (1st), 316 So.2d 71, Opinion filed August 1, 1975.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


text:
    Bonnie ARONSON and Allstate Insurance Company, Appellants, v. Pedro Antonio SIQUIER, Appellee.
    No. 74-1338.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 10, 1975.

      Weissenborn, Burr & Hyman and Gary M. Carman, Miami, for appellants.
    Podhurst, Orseck & Parks; Mark J. Feldman, Miami, for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

The appellee Pedro Antonio Siquier filed an action for damages for personal injuries received in an automobile accident, against the appellants Bonnie Aronson and her insurer Allstate Insurance Company, and against Robert K. Waters and Salvatore C. Santisi and their insurers.

There was a rear end collision, in which four vehicles were involved. While the automobile being driven by the plaintiff was in a stopped position on a street, it was struck from the rear by the car driven by Santisi (who was not served with process in the action). The car driven by the defendant Aronson then struck the Santisi car, and in turn was struck by the fourth car driven by the defendant Waters. The verdict rendered reveals the jury concluded the plaintiffs injuries were caused by the successive collisions or blows by the San-tisi car and the Aronson car.

In answer to special interrogatories the jury by special verdicts found that the plaintiff had suffered permanent injuries; that the plaintiff was free of negligence; that the defendant Aronson was guilty of negligence which was “a legal cause of the accident”; and that the defendant Waters was not guilty of any negligence which was a legal cause of the accident. The verdict awarded damages to the plaintiff in the amount of $45,000.

Defendants Aronson and Allstate Insurance Company moved the court to grant a new trial or a remittitur in reduction of damages as an alternative to the granting of a new trial. Included in the motion were grounds that the verdict was excessive due to “the influence of passion or other improper motives”; was “excessive such as to shock the judicial conscience”; was contrary to the evidence relating to the injuries; and was punitive in nature.

The trial court entered an order denying the motion, and five days later, in clarification thereof, entered a second order denying the motion in which it was explained that the court regarded the verdict as being against the manifest weight of the evidence relating to damages and was excessive, for which the court would have ordered a remittitur of $30,000 of the amount awarded by the jury, but did not do so because the court felt it was precluded by law from ordering a remittitur, by the ruling of the Supreme Court in the case of Seaboard Coast Line Railroad Company v. McKelvey, Fla.1973, 270 So2d 705. Final judgment was entered on the verdict, and the defendant Aronson and her insurer appealed.

The appellants contend, and we agree, that the trial court misconceived a controlling principle of the applicable .law, in concluding that the decision in McKelvey would preclude the court from granting a new trial on damages or from ordering a remittitur as an alternative to the granting of a new trial on damages, in the circumstances recited by the trial court in this case on its consideration of the defendants’ motion therefor.

In McKelvey the Court said:

“Consistently, our Courts have vested juries with the sound discretion to render verdicts in personal injury cases, upon the equally consistent admonition that there is ample evidence to support such' verdicts and that the verdicts are not clearly arbitrary or so excessive as to indicate passion, prejudice, corruption, improper motive or to shock the judicial conscience.” [Citations omitted].

That language in McKelvey is consistent with earlier and subsequent decisions of Florida appellate courts recognizing the jurisdiction and discretion of a trial court to grant a new trial, or order a remittitur as an alternative to the granting of a new trial, where damages awarded in a verdict are not supported by evidence or are excessive for a reason or to the extent referred to in the quoted order entered by the trial court. See De La Vallina v. De La Vallina, 90 Fla. 905, 107 So. 339; Kovacs v. Venetian Sedan Service, Inc., Fla.App.1959, 108 So.2d 611; Cohen v. Margoa, Inc., Fla.App.1973, 281 So.2d 406; Friddle v. Seaboard Coast Line Railroad Company, Fla.1974, 306 So.2d 97 (in which the Supreme Court directed a remittitur and its amount) ; and Montenegro v. Rainwater, Fla.App.1975, 314 So.2d 191 (opinion filed June 17, 1975). Moreover, when a trial judge concludes that a verdict is against the manifest weight of the evidence, or the amount thereof is excessive such as to shock the judicial conscience, it is the duty of the court to grant such relief therefrom on motion for a new trial. See Cloud v. Fallis, Fla.1958, 107 So.2d 264, 269-270.

For the reasons stated the final judgment entered on the verdict is reversed, the order denying the motion for new trial is set aside and the cause is remanded to the trial court for reconsideration of the motion of said defendants for new trial or remittitur, in the light of the views expressed herein with relation to the jurisdiction and discretion of the trial court with regard thereto, and thereupon to enter such order or judgment herein as the trial court shall deem proper.

It is so ordered.

      . “THIS CAUSE having come on to be heard before the Court on the Motion of the defendants, BONNIE ARONSON and ALLSTATE INSURANCE CO., and the Court having heard argument of counsel, and being otherwise fully advised in the premises, makes the following findings of fact:
      1. That the verdict was completely contrary to the manifest weight of the evidence from a qualitative point of view of the damages sustained by the plaintiff and if the undersigned trial Judge had the discretion to do so he would have granted a Remittitur of no less than Thirty Thousand dollars ($30,000.00) or in the alternative grant a new trial.
      2. That the trial Judge felt that no matter how strongly he felt that the verdict was excessive from a damage point of view, under the rule announced in Seaboard Coast Line Railroad Company v. McKelvey, Jr., 270 So.2d 705 (Fla.1973) he has no discretion to set aside the jury verdict and therefore must deny the defendants’ Motion. Accordingly it is therefore:
      ORDERED and ADJUDGED that the Motion of the defendants, BONNIE ARONSON and ALLSTATE INSURANCE COMPANY, be and the same is hereby denied.”

      . The doctrine that a proper judgment should not be reversed because of an erroneous reason or ground therefor announced by the trial court is inapplicable when it appears the court misconceived a controlling principle of law applicable to the cause, and based thereon entered a judgment prejudicial to a party due to such error. Catlett v. Chestnut, 107 Fla. 498, 146 So. 241, 91 A.L.R. 212; Knight v. City of Miami, 127 Fla. 585, 173 So. 801; Green v. Putnam, Fla.1957, 93 So.2d 378, 380.


author: RAWLS, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. James David PEARCE and William Lee Kinner, Appellees.
    No. X-352.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1975.
    Rehearing Denied Oct. 2, 1975.
    Robert L. Shevin, Atty. Gen., and L. Arthur Lawrence, Jr., Live Oak, for appellant.
    A. K. Black, Lake City, for appellees.
   RAWLS, Acting Chief Judge.

By this interlocutory appeal, the state seeks reversal of the trial court’s order suppressing certain evidentiary items and directing the return of same to appellees Pearce and Kinner. We agree and reverse.

We recite the evidence most favorable to upholding the trial court’s order. On August 13, 1974, at 11:00 p. m., a Game and Fresh Water Fish Commission wildlife officer, after having received a report of possible game law violations, parked his car on the shoulder of Highway 90 approximately 60 yards east of a gate leading into private property in Madison County. Two large ponds were situated approximately one-half to three-quarters of a mile on the private property to the northeast of the officer. Shortly after stopping, the officer heard one shot fired from a shotgun and then heard an airboat “cranked up and idling along”, which from his knowledge of the area he assumed was located on one of the ponds. He also observed the glare of a light “hitting the water and reflecting back over the tree line.” He waited 60 yards east of the gate for approximately one and a half to two hours. During this period of time he heard sounds that indicated to him the loading of an airboat onto a trailer. A pickup truck towing a trailer with an air-boat on it was driven by appellee Pearce to the gate from across a pasture. At this point in time, according to appellees, the officer drove his patrol car through the gate and stopped it a car length on private property. The officer, after speaking to appellees, walked by the truck (in which he observed a Remington shotgun) “. and back to the airboat and looked over in the boat and there lay three gators on the left hand side of the boat between the gun-nell of the boat and the seats of the boat.” He also saw and removed a Winchester rifle from the boat. Subsequently, an information was filed charging appellees Pearce and Kinner with unlawfully poaching and killing alligators.

Appellees contended in the trial court by their motion to suppress, basically, that the items (airboat, shotgun and rifle) were seized by reason of an unlawful search without probable cause and as an incident to an unlawful arrest.

The poaching and killing of an alligator is a third degree felony. Furthermore, such items as were seized in the cause are subject to confiscation when used in unlawfully poaching or killing alligators. The state contends and we agree that under the undisputed facts outlined above, it is immaterial whether the officer’s vehicle was one car length inside or outside the gate. The salient question presented to the trial judge was that of probable cause for the officer to believe that a felony had been committed. At eleven o’clock during the nighttime, this wildlife officer had a “lead” that the game laws were being violated in a rural area; he heard a shotgun being fired in a pasture-pond area; he heard an airboat cranking up, idling along, running a little way, and then shutting down; he saw the glare of a light reflecting off water; and he then patiently waited for the airboat’s operators to drive to the gate at approximately one o’clock in the morning. This wildlife officer under such circumstances would have been derelict in the performance of his duties had he not looked into the airboat and seen the contraband.

The sophism of the trial judge’s order granting the motion to suppress is found in his statement: “I might add he had heard one shot, which could require inference upon an inference to conclude that that shot had been directed at an alligator or any game animal.” It is not the one shot that furnished the probable cause; it is the totality of the factors enumerated that furnished the foundation for the wildlife officer’s visual inspection of the airboat and the clear view of contraband that he found.

The trial court’s order granting the motion to suppress is quashed, and the cause is remanded for further proceedings consistent herewith.

It is so ordered.

MILLS and McCORD, JJ., concur.

      . The officer testified, “When they got to the gate going into the pasture I pulled in front of them and blocked them, with my patrol car and blue light on and asked them to step out, please.”

      . Florida Statute 372.663.

      . Florida Statute 372.07(2) (e) — Arrest upon probable cause without a warrant.

        .State v. Outten, 206 So.2d 392 (Fla.1968), wherein the Supreme Court held: “The facts constituting probable cause need not meet the standard[s] of conclusiveness and probability required of the circumstantial facts upon which conviction must be based.
      [I]t is to be measured by the test of what a reasonable man would have believed.”


text:
    ST. JOE PAPER COMPANY, a corporation, Petitioner, v. CITY OF JACKSONVILLE, Respondent.
    Nos. Y-161, Y-385.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1975.
    Rehearing Denied Oct. 6, 1975.
    Fred H. Kent, and Timothy A. Burleigh, Kent, Sears, Durden & Kent, and David W. Foerster, Foerster & Hodge, Jacksonville, for petitioner.
    Harry L. Shorstein, and William Lee Allen, Robert 0. Mickler, Jennings, Watts, Clarke & Hamilton, and C. Ray Greene, Jr., Greene, Greene, Smith & Davenport, Jacksonville, for respondent. (Y-161)
    William Lee Allen, Jacksonville, for respondent. (Y-385)
   PER CURIAM.

The two Petitions for Writ of Common Law Certiorari having been heretofore consolidated by order of this Court, and this Court having considered said petitions, the record filed herein, briefs filed herein by able counsel for the respective parties and having heard oral arguments thereon, said petitions are denied.

It is so ordered.

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


text:
    Charles Todd HOLLAND, Appellant, v. STATE of Florida, Appellee.
    No. X-163.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1975.
    Rehearing Denied Oct. 6, 1975.
    Henry Lee Adams, Jr., Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Andrew W. Lindsey, and Raymond L. Marky, Asst. Attys. Gen., for appellee.
   PER CURIAM.

Affirmed. (See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) and State v. Wolff, Sup.Ct.Fla. 1975, 310 So.2d 729.)

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


author: SMITH, Judge.

text:
    GULFSTREAM PARK RACING ASSOCIATION, INC., a Florida Corporation, Petitioner, v. BOARD OF BUSINESS REGULATION OF the DEPARTMENT OF BUSINESS REGULATION, a State agency, and Hialeah Park, Inc., a Florida Corporation, Respondents.
    No. Y-549.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1975.

      J. Elliott Messer, and M. Stephen Turner, Thompson, Wadsworth & Messer, Tallahassee, and Leonard Romanik, Landefeld & Romanik, Hollywood, for petitioner.
    William Moore and Marion E. Sibley, Sibley, Giblin, Levenson & Ward, Miami Beach, for respondents.
   SMITH, Judge.

Petitioner Gulfstream Park Racing Association, Inc., seeks review of an order of the Board of Business Regulation awarding Hialeah Park, Inc., the prime midwinter thoroughbred horse racing dates for the 1975-76 Florida winter season. The issue is whether the order is supported by law and by competent substantial evidence.

The Hialeah/Gulfstream run for the coveted middle forty days has become an annual judicial event. Until 1972, the middle dates were Hialeah’s exclusively because §§ 1-6, Ch. 23728, Fla.Laws 1947, § 550.081, F.S.1949-1971, rewarded the track producing the greatest pari-mutuel tax revenue each year with its choice among the three racing periods of the next season. Each year that track was Hialeah, principally because it raced the profitable middle dates in the first year, consequently remitted the greatest tax revenue to the State, chose to do the same in the next year and repeated the process annually for more than 20 years. Section 550.081 was held not unconstitutional per se against Gulf-stream’s equal protection challenge in 1948. Hialeah Race Course, Inc. v. Gulfstream Park Racing Ass’n, Inc., 37 So.2d 692 (Fla.1948) (which we will refer to as “Hialeah 1948”). But in 1971 Gulfstream’s aggressive development of comparable track facilities and strong performance in less attractive racing dates led the Supreme Court to invalidate the preferential aspects of § 550.081 as denying Gulfstream equal protection of the law. The Court directed the Board to assign dates “in the next and succeeding racing years in the manner provided by law, unaffected by voided Section 550.081, Florida Statutes . .” Hialeah Race Course, Inc. v. Gulfstream Park Racing Ass’n, Inc., 245 So.2d 625, 629-630 (Fla.1971) (“Hialeah 1971”). And so began the annual struggle for season position which continues today.

When the Board exercised its new-found discretion by granting Hialeah the middle dates for the 1971-72 season, notwithstanding the invalidation of Hialeah’s statutory preference, the Supreme Court on certiora-ri vacated that decision and awarded the middle dates to Gulfstream. Gulfstream Park Racing Ass’n, Inc. v. Div. of Pari-Mutuel Wagering, 253 So.2d 429 (Fla.1971) (“Gulfstream 1971”). A year later, when the Board attempted to give Gulf-stream a second opportunity in the middle dates to develop ability to perform handsomely for itself and the State, the District Court of Appeal sustained the Board [Hialeah Race Course, Inc. v. Board of Business Reg., 267 So.2d 839 (Fla.App.3rd, 1972) ] but the Supreme Court reversed and ordered Hialeah restored to the middle dates. Hialeah Race Course, Inc. v. Board of Business Reg., 270 So.2d 366 (Fla.1972) (“Hialeah 1972”). The Board alternated the middle dates back to Gulfstream for the 1973-74 season, and Hialeah’s petition for certiorari to the Supreme Court was denied without opinion. State ex rel. Hialeah Park, Inc. v. Board of Business Reg., 287 So.2d 679 (Fla.1973). Last year, when the Board reassigned the middle dates to Hialeah for 1974-75, Gulfstream acquiesced without litigation.

Full exploitation by the State of the revenue-generating capacities of thoroughbred racing requires that Florida’s three principal winter tracks, Hialeah, Gulfstream and Tropical Park (which runs at Calder in the early season beginning in November) not operate simultaneously. Sec. 550.081(1), F.S.1973. So the Board’s award of the profitable middle dates to Hialeah for 1975-76 relegates Gulfstream for the second consecutive year to the less attractive “spring dates” of March and April, when most of Florida’s winter visitors have departed and when warmer days and richer purses at northern tracks beckon the finer horses and jockeys.

The Board has awarded the middle dates to Hialeah, notwithstanding that it thereby interrupts an established rotation pattern and gives the poorer revenue producer the choice dates desired by the better producer, on two alternative grounds. They are: (1) the State’s overall financial interest in the 1975-76 season will thereby be better served and (2) Hialeah’s recurring losses are strong and compelling reasons why it should have the more profitable dates (see Hialeah 1972, 270 So.2d at 371).

I.

The State’s only interest in permitting and encouraging betting on horses is the raising of tax revenue. That policy is dictated by the provisions in § 550.081, F.S. 1973, and by repeated emphasis in Supreme Court decisions. Hialeah 1948, 37 So.2d at 694; Hialeah 1971, 245 So.2d at 629 and dissenting opinion at 630; Gulfstream 1971, 253 So.2d at 431, quoting Hialeah 1971; Hialeah 1972, 270 So.2d at 371. The same policy is underscored in the 1975 legislative remodeling of § 550.081 and related statutes. Chapter 75 — 43, Fla.Laws 1975.

The objective of maximizing tax revenue has been thought to be best served — in the absence of some overriding consideration — by awarding the favored midwinter dates to the track which produces better tax revenues. That was the effect of § 550.081, F.S.1971, p.nd the Supreme Court’s decision invalidating that statute accepted sub silentio the legislative preference for the best producer while insisting that Gulfstream be given an equal opportunity to qualify. Hialeah 1971, 245 So.2d 625; see also Gulfstream 1971, 253 So.2d at 431. In 1972, however, the Supreme Court’s adherence to the best producer rule, “all other factors being equal,” became more explicit. Overturning a Board decision which on grounds of equality of opportunity awarded Gulfstream a second consecutive year in the midwinter dates, the Court stated:

“It is significant, but not always controlling, that the revenue produced for the State by Gulfstream during the last season was $400,000.00 less than the revenue produced by Hialeah the prior season during the same racing period.
“This Court will always strive to afford equal opportunity to all. We have in this case. But, all other factors being equal, tracks with records as best producers of revenue should prevail unless strong, compelling reasons otherwise dictate.” (270 So.2dat371).

The day is apparently gone when the Board might have simply compared current revenues from applicant tracks, comfortable in the realization that total pari-mutuel revenues were stable or increasing and that greater profits to the best producer were the only stakes. Compare the halcyon circumstances in which the Racing Commission assigned pari-mutuel dog racing dates in 1954. State ex. rel. West Flagler Kennel Club, Inc. v. Florida State Racing Comm’n, 74 So.2d 691 (Fla.1954). Thoroughbred racing in Florida has been in a decline for several years. Since peaking in 1969, pari-mutuel wagering handled by Hialeah and Gulfstream has declined from nearly $144 million to $116.5 million, and State revenues from their racing have declined from $12.5 million to $10.0 million.

In the order now before us, awarding Hialeah the 1975-76 midwinter dates, the Board forthrightly acknowledged that, in this period of declining revenues, Gulf-stream consistently receives the greater handle, or gross pari-mutuel intake, and is consequently the better producer of State tax revenue. The comparative record of performance by the two tracks in recent years leaves no doubt that that is so:

Summary of handle and tax revenue (in millions of dollars). M indicates the track raced midwinter or middle dates, S indicates spring or ending dates.
Gulfstream handle Hialeah Combined handle handle Gulfstream Hialeah tax rev. tax rev.
1970-71 54.95 (S) 76.31 (M) 131.26 4.77 (S) 6.66 (M)
1971-72 72.34 (M) 51.79 (S) 124.13 6.26 (M) 4.44 (S)
1972-73 53.31 (S) 69.70 (M) 123.01 4.65 (S) 6.00 (M)
1973-74 70.73 (M) 46.32 (S) 117.05 6.08 (M) 4.00 (S)
1974-75 49.80 (S) 66.77 (M) 116.57 4.33 (S) 5.77 (M)

It can readily be seen that, despite gasoline scarcity and other detriments to a successful season, the tax revenue remitted by Gulfstream during midwinter 1973-74 exceeded Hialeah’s revenue production in the midwinter dates of the banner tourist years immediately before and after. In the spring dates, too, Gulfstream’s tax revenue in 1972-73 resisted a declining trend and exceeded Hialeah’s tax revenue in 1971-72. Gulfstream did it again in 1974 — 75.

Notwithstanding Gulfstream’s more impressive recent record and its claim to the midwinter dates as best producer, the Board has concluded that the State’s interests will be better served by assigning Gulfstream the spring dates, in which its revenue-generating predominance over Hialeah is said to be greater than in the midwinter performances. Thus, the Board stated in the order before us,

“It therefore appears, and the Board so finds, that Gulfstream produces more revenue in either the winter or the spring dates, but that when Gulfstream runs the spring dates, the overall season revenues to the State, (combination of winter and spring) are higher. Hialeah does not produce as much revenue in the later spring dates as does Gulfstream. Evidence was received that Hialeah was built as a winter track, for use in cooler weather. Gulfstream is closer to the cooling coast breezes in both winter and spring dates.
“From the foregoing, the Board finds that the best interest of the State is best served, more revenue for the entire season is produced, by the award of the winter dates to Hialeah.”

We believe that the Board was competent to decide that, in times of comparative distress in the pari-mutuel industry, it is entirely too simplistic to squander the more profitable midwinter dates on the stronger producer, regardless of the effect that action has on total State revenues for the entire season. If greater revenue to the State is the goal, and it is, the Board may properly place the better producer of income where its better production is more pronounced, and it may do so despite the producer’s outcry. Gulfstream had a constitutional right to an even-handed application of a statute prescribing the award of preferred dates, Hialeah 1971, 245 So.2d 625, but it has no constitutional right to the preferred dates. Hialeah 1948, 37 So. 2d at 694.

In approving the Board’s assertion of competence to reassess the State’s interest in the light of changing circumstances, we do not presume to change law written by the Supreme Court. As we have seen, the Supreme Court’s stated preference for the best producer (Hialeah 1972, 270 So.2d at 371) mirrored a policy embodied in § 550.-081, F.S.1971, which by common consent survived the statute’s invalidation. But the best producer has been preferred, not for its own sake, but for the State’s.

Constitutional limitations aside, the Supreme Court has consistently emphasized that advancement of the State’s interest is paramount and that, where that course is clear, other considerations are secondary. In Hialeah 1971, 245 So.2d 625, and Gulfstream 1971, 253 So.2d 429, the Court was of course primarily concerned with the rectification of past deprivations of equal protection. But even then, the Court showed interest in whether “competition [between Gulfstream and Hialeah] is advantageous to the state.” Gulfstream 1971, 253 So.2d at 433. And in Hialeah 1972, 270 So.2d 366, the Court expressed concern over the effect of schedule uncertainty on the financial stability of the tracks, but only because of the potential detrimental influence upon “the financial stability of the State and the counties.” 270 So.2d at 371. When the Court in that case stated,

“. . . all other factors being equal, tracks with records as best producers of revenue should prevail unless strong, compelling reasons otherwise dictate.” (270 So.2d at 371),

the Court clearly meant that the specified test should be employed as long as the State’s paramount interests were thereby served. But “all other factors” are not equal when the State’s paramount financial interests in this sensitive industry require its licensees, good and poor, to subordinate their own financial goals. See Hialeah 1948, 37 So.2d 692.

Shortly after the Board entered its order in this case, the 1975 Legislature endorsed the Board’s refinement of the criteria for awarding racing dates by enacting Chapter 75-43, Fla.Laws 1975, amending § 550.-081(1) (c), F.S., for a limited period of two years to read in part:

“In allocating the racing dates . the Board . . . shall take into account the ability of all winter permit holders to maximize handle throughout the entire 144 day racing period so as to generate overall the maximum state revenue from winter permit holders collectively.”

As long as the Board is satisfied, as it has stated it is, that the contending track owners are equal in skill and diligence of management, the Board may properly equate the State’s interest with the greatest amount of aggregate season revenue even though application of the test may place the superior producer in the difficult, less rewarding dates, and reward the poorer producer with more profitable dates. In adopting such a standard, however, the Board increases its duty to be vigilant against the danger that a track whose less fruitful efforts have been so rewarded will, for that reason, become less fruitful still. If and when that occurs, the State’s interests will be imperiled and the Board’s new policy will be not merely ineffectual but detrimental.

While we approve the Board’s fashioning of a refined test for ascertaining the public interest, we cannot approve the Board’s application of its test to the evidence here before it. There is no competent substantial evidence to support the Board’s finding that the State’s combined revenues from the midwinter and spring racing dates have been or will be higher when Gulfstream runs the spring dates and Hialeah the midwinter dates. In the last four racing seasons, each of the contenders has run twice in midwinter and twice in the spring dates. In the two years when Gulfstream ran at midwinter and Hialeah in the spring, the average combined handle was $120.6 million. When the roles were reversed, the average combined handle was not substantially more, as the Board found, but barely less: $119.8 million. The Board reaches its stated result only by including the 1970-71 combined handle in the average. Thereby the Board shows an average of $123.6 million aggregate handle when Gulfstream raced the spring dates, indicating, as the Board found, that “when Gulfstream runs the spring dates, the overall season revenues to the State are higher.” But inclusion of the combined 1970-71 handle is faulty for three reasons:

First, it is inappropriate to give weight to Hialeah’s performance at a time when the track was owned and operated by the predecessors to the present owners, who purchased it in 1972.

Second, inclusion of the 1970-71 figures reverses the comparison results not because of a superior performance by Gulfstream in the spring of 1971 — which is, after all, the Board’s hypothesis — but because of a remarkably good performance by Hialeah in the midwinter dates.

Third, it is unrealistic to assign the 1975-76 racing dates on the basis of averages which a're so dramatically influenced by Hialeah’s handle of $76.3 million in 1971 — a record of performance which has not been equaled by either track since then and from which Hialeah sank by $6.6 million in 1973 and by another $2.9 million in 1975.

If the 1970-71 season figures are pertinent at all, they tend to show only that Hialeah has since done poorly in the midwinter dates, not that Gulfstream is more obviously superior to Hialeah in the spring dates than in the midwinter dates.

It therefore appears that the Board’s assignment of Hialeah to midwinter dates and Gulfstream to spring dates in 1975-76 cannot be sustained by competent substantial evidence that, on the basis of valid comparisons of past records, the State will likely receive more combined tax revenue.

II.

At its hearing on May 6 and 7, 1975, the Board gave little if any attention to its alternative finding, treated above, that “when Gulfstream runs the spring dates, the overall season revenues to the State are higher.” That alternative ground appeared prominently for the first time in the Board’s May 21 order, when perhaps it was apparent that the Legislature would act favorably, as indeed it did before the end of May, on the bill endorsing that consideration. Ch. 75^-3, § 7, Fla.Laws 1975, amending § 550.081, effective May 30, 1975. At the hearing, the dominant concern of a majority of the Board in allocating midwinter and spring dates for the 1975-76 season was saving Hialeah and the State from Hialeah’s apparent financial ruination.

The Board did not determine this matter without considering, as was its duty (Hialeah 1972, 270 So.2d at 369-71), the factors of Hialeah’s and Gulfstream’s respective “interests” and the “good will, the quality of [horses], track facilities, geography [and] skill in management.” State ex rel. West Flagler Kennel Club, Inc. v. Florida State Racing Comm’n, 74 So.2d 691, at 692; Hialeah 1972, 270 So.2d at 369. While the Board’s order implies that Hialeah has a greater interest in reducing its losses than Gulfstream has in maintaining its profits, the Board otherwise found that the contenders, judged in the light of the above-quoted factors, are equal. That being so, the Board invoked the stated exception to the Supreme Court’s principal holding in Hialeah 1972:

“ . . . all other factors being equal, tracks with records as best producers of revenue should prevail unless strong, compelling reasons otherwise dictate.” (270 So.2d at 371, emphasis added.)

The same exception was mentioned in Justice Ervin’s opinion for the Court in Gulfstream 1971, 253 So.2d 429, envisioning that the State’s interests might best be served and the interests of two contending tracks might best be accommodated by

“a rotation system of racing dates annually between Gulfstream and Hialeah unless strong and compelling reasons otherwise dictate." (253 So.2d at 431, emphasis added.)

On general application of the rules stated in Gulfstream 1971, 253 So.2d 429, and Hialeah 1972, 270 So.2d 366, Gulfstream would of course receive the 1975-76 middle dates. But the Board found “strong and compelling” reasons to rule otherwise:

“A review of the financial statements of Hialeah indicate that in 1972 Hialeah’s net loss was $316,000; in 1973 its net loss was $430,000; in 1974 its net loss was $3,201,000; and in 1975 Hialeah’s net loss was approximately $1,400,000. . . .
“In addition, Hialeah announced in the fall of 1974 that it intended to sell its permit and close its operation as a result of its financial losses. This sale was not consummated for various, reasons, but the testimony has shown that the Hialeah Board of Directors and a majority of the shareholders did vote to sell its permit and close the racing facility at Hialeah. The chairman of its Board Mr. Galbreath, testified before the Board, that if Hialeah were awarded the mid-winter dates for the year 1975-76, it would operate irrespective of loss; and the record currently indicates that its loss is much less when it runs the midwinter dates than the spring dates.
“The Board finds that it would not be in the best interest of the State if Hialeah Race Track closed its operation because that closing would adversely affect the entire thoroughbred industry within the State of Florida, and could have a deleterious effect on other revenue producing industries, not the least of which is Florida’s tourist industry. Owners of horses are annually attracted to Florida’s winter racing season because of the continuing operation of the three race tracks (Tropical racing at Calder, Hialeah and Gulfstream), and the Board finds in addition, that Hialeah stabled and raced an impressive list of the nation’s leading thoroughbreds. Even if the Board were to find (which it does not) that the individual test of production of revenue during a single period should prevail, there are, therefore, strong and compelling reasons to the contrary justifying, in the opinion of the Board, the awarding of the mid-winter dates to Hialeah.
“Further, this Board is thoroughly familiar with proposed financial relief for the thoroughbred industry, recommended by this Board to the Legislature, as well as with development of a uniform financial reporting system which will permit the State to better evaluate the condition of our pari-mutuel industry. This should keep each pari-mutuel permittee and horse owner in a relatively sound financial position (at least on a cash flow basis) during the evaluation period or until a long range plan is developed and enacted, which will hopefully inure to the benefit of the State and to the parimutuel industry. This adds to the Board’s position on strong and compelling reasons contrary to any award to Gulfstream.”

Gulfstream complains that the Board’s assessment of Hialeah’s financial condition is exaggerated and that the Board’s intimation of Hialeah’s imminent closing is only that, an intimation unsupported by competent substantial evidence. While we observe that Hialeah’s losses recited in the Board’s order are heavily (but not entirely) influenced by low capitalization and generous depreciation factors which do nothing to recommend Hialeah for special consideration at the hands of the State, we decline to substitute our judgment for that of the businessmen on the Board in the arcane science of evaluating Hialeah’s financial statements. Sec. 120.68(10), F.S.1973 (1974 Sup.); Department of Agr. and Consum. Serv. v. Strickland, 262 So.2d 893 (Fla.App. 1st, 1972). We therefore accept the Board’s finding that the financial condition of Hialeah Park, Inc. is such that its continued operation is doubtful.

It is true also, as Gulfstream argues, that references in the testimony to an attempt by Hialeah Park, Inc. to sell its permit and close the racecourse are oblique and obscure. But substantial evidence of those events is not wholly lacking, and strict proof of circumstances corroborating the evidence of Hialeah’s distress is not required. Sec. 120.58(1) (a), F.S.1973 (1974 Sup.). We may therefore accept the Board’s finding that Hialeah’s financial straits are such that a serious effort has been made by the present owners to dispose of the track. Florida Rate Conf. v. Florida R.R. and Pub. Util. Comm’n, 108 So.2d 601 (Fla.1959).

Hialeah’s waning fortunes exemplify in a particularly aggravated way the state of affairs which the 1975 Legislature found requires emergency legislation:

“(1) It is the finding of the legislature that in general the attendance and wagers handled at the state thoroughbred horse racetracks have significantly declined in recent years and that such a continuation will seriously jeopardize state revenues, as well as the future operation of these tracks.
“(4) It is further the finding of the legislature that thoroughbred horse racing facilities have certain fixed operational costs which are substantial and which remain relatively uniform and consistent throughout a racing meeting and that such fixed operational costs have reached a point where the continued operation of the thoroughbred horse tracks in Florida is in jeopardy.” [Ch. 75-43, § 1(1), (4), Fla.Laws 1975],

The question, then, is whether the law given by Supreme Court decisions permits the Board in its discretion to assign the poorer producer the favored midwinter dates in a second consecutive year upon the ground that, without such relief, the poorer producer will likely fail. We have no doubt of it.

There is adequate evidence in the record to support the Board’s finding that the success of Florida’s winter thoroughbred season, like the stability of a three-legged stool, depends on contributions from both Hialeah and Gulfstream as well as from Tropical. Should Hialeah close, Florida would lose not only a grand tradition but also an historically important contributor to the thoroughbred industry in the state. The Board found, on ample evidence,

“ . . . that the presence of the three tracks contribute [s] mutually to each other. . . . [I] f Hialeah were to close, the quality of horses would be adversely affected, even for Gulfstream.”

The evidence further justifies the Board’s apprehension that Hialeah’s closing would adversely affect the breeding industry and tourism generally.

The sensitive task of allocating racing dates is nondelegably assigned to the Board of Business Regulation by statute. Sec. 550.011, F.S.1973. The Board, in the exercise of its legal authority, perceives State interest in the preservation of Hialeah and, at least for now, of Hialeah Park, Inc. Having made that legitimate choice, the Board has taken circumspect action, for one season only, to prevent what on adequate evidence it considers would be a shocking economic blow to a major Florida industry affected with a public interest.

Unless this Court’s function is to make racing policy rather than to read law, we must respect the Board’s decision. The best producer has on occasion been judicially preferred, but Hialeah 1972, 270 So.2d 366, does not require such preference at the expense of the State and the ruin of another licensee. Justice Ervin’s predicted rotation of the favored dates (Gulfstream 1971, 253 So.2d at 431) has become fact, and the Board may well consider that alternation- between Hialeah and Gulfstream should be the norm when, as now, maximum season revenues are clearly the Board’s objective. But fair as that system may be, it too must give way when overriding State interests require, just as a profitable arrangement with Hialeah gave way to constitutional considerations after Hialeah 1971, 245 So.2d 625.

The Board did not find that Hialeah’s operation in the midwinter dates in the 1975-76 season would restore Hialeah to financial health, but we do not believe such a prediction by the Board is essential. In Gulfstream 1971, 253 So.2d 429, the Supreme Court held that the Board ought to have assigned the midwinter dates to Gulf-stream because “equality of opportunity” was thought to be “a most important factor preponderating over nearly all other considerations.” 253 So.2d at 431. The Court did not then predict, or require the Board to predict, that Gulfstream would be as fruitful in 1971-72 as Hialeah had been in 1970-71. And in fact, Gulfstream did not equal Hialeah’s prior record of revenue production in the middle dates. Hialeah 1972, 270 So.2d at 371. But the risk that Gulfstream might fail in its endeavor to match Hialeah, as prospectively viewed in Gulfstream 1971, 253 So.2d 429, did not make “equality of opportunity” any less an overriding consideration at that time. Similarly, the substantial possibility that the 1975-76 midwinter dates will not cure Hialeah’s financial woes, and that Hialeah may yet fail, does not forbid the Board’s allowing Hialeah that relief.

The record shows, as we have seen, that the State has received slightly less revenue on the average when Hialeah rather than Gulfstream operates in the midwinter dates. That slight disadvantage to the State is of little consequence in a single year. But the dangers of continuing to so reward the poor producer and to so penalize the better producer and the State are obvious. The Board may reasonably anticipate that, in the assignment of the 1976-77 midwinter dates, its position will be comparable to that of the Board in 1972-73, when the Board attempted to extend for another year the prior year’s overriding policy of “equality of opportunity.” That was held to be error. Hialeah 1972, 270 So.2d 366.

The Board’s order awarding the 1975-76 thoroughbred racing dates is in accord with law and competent substantial evidence. We will therefore not disturb, it. Because of the exigencies of time, the period for the filing of any petition for rehearing is shortened to five days. Gulfstream’s petition is

Denied.

RAWLS, Acting C. J., and McCORD, J., concur.

      . It has been tacitly assumed by all concerned that no part of § 550.081 except the preferential allocation of racing periods was affected by the Supreme Court’s 1971 decision. The . concept of dividing the winter season into three exclusive racing periods for Hialeah, Gulfstream and Tropical Park (Calder) still prevails under the legislative finding “that two or more horse race tracks located witli-in a radius of one hundred air miles of each other cannot operate on the same racing days without endangering the tax revenue derived therefrom and the general welfare of the public.” Sec. 550.081(1), F.S.1973. That policy, though unstated, continues in the 1975 amendment to § 550.081. Ch. 75-43, § 7, Fla.Laws 1975.

      . The 1975 Act extends the racing season from 120 to 144 days, adjusts the beginning dates (Tropical’s) and spring dates from 40 to 50 days and increases the middle dates from 40 to 44 days. This adjustment will tend to reduce the disparity of revenue and profitability between racing periods, as will greater disbursements from a common purse pool to the licensees operating in the beginning and spring dates. Chapter 75-43, § 2, Fla.Laws 1975.

      . We compare average handle figures because that is what the Board did. The more pertinent tax revenue figures are in the same proportions: the average combined revenue in the two years when Gulfstream ran in midwinter was $10.39 million; it was $10.38 million when Hialeah did so; and the result of averaging in 1970-71 revenues, when Hialeah ran at midwinter, is a figure of $10.73 million.

      . It is surely difficult to measure, as a means of comparison, “the interest of the track owner[s].” Each has interests which will best be served by enjoying the midwinter dates. The quoted factors were perhaps more useful when, before 1947, § 550.02(1), F.S. 1941, required the Racing Commission to allocate dates among competing pari-mutuel operators in a “fair and impartial manner.” That standard, eliminated by Ch. 24348, Fla. Laws 1947, emphasized fair dealing as between licensees as the primary consideration. See State ex rel. West Flagler Kennel Club, Inc. v. Florida State Racing Comm’n, supra. In later years the State’s financial interest has been seen as paramount. See, e. g., Hialeah 1972, 270 So.2d 366.

      . We do not read the Supreme Court’s subsequent criticism of “the changing, altering and varying of the racing periods from year to year” (Hialeah 1972, 270 So.2d at 369) as criticizing a stable policy of rotating the midwinter dates absent other strong and compelling reasons. Rather, the evil to which the Court there pointed was the uncertainty generated by constantly changing the criteria governing assignments. In Hialeah 1972, the Court itself rotated the favored dates back to Hialeah and set the pattern for the next two years.


text:
    Willie D. YOUNG, Appellant, v. Valveta Luvenia TURNER, Appellee.
    No. U-390.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1975.
    Rehearing Denied Oct. 6, 1975.
    Ernest D. Jackson, Sr., Jackson & Micks, Jacksonville, for appellant.
    Johnny B. Jennings, Duval County Legal Aid Association, Jacksonville, for appellee.
   PER CURIAM.

We have considered the record, briefs and oral arguments and find no error in the proceedings below. The judgment of the trial court is presumed to be correct and although there are conflicts in the testimony, the trial judge was in a far better position to judge the credibility of the witnesses than is the appellate court. The evidence is sufficient to support the findings and conclusions of the trial court and therefore his final judgment and order on defendant’s motion to vacate the final judgment are affirmed. See Cook v. Cook, Fla.App. (1st), 305 So.2d 12, and Belin v. Sanchez, Fla.App., 101 So.2d 64.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


author: McCORD, Judge.

text:
    John Wesley PRICE, Appellant, v. STATE of Florida, Appellee.
    Nos. U-397, U-398.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1975.
    Rehearing Denied Sept. 5, 1975.
    Albert Datz, of Datz, Jacobson & Dusek, and D. B. Montgomery, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   McCORD, Judge.

Appellant was convicted of grand larceny and of resisting an officer in the performance of a legal duty with violence. He has appealed the judgments and sentences for the two offenses. The two cases were consolidated for trial and have been consolidated on appeal.

At approximately 7 a. m. on April 26, 1973, police officer J. W. Pierotti, was responding to an unrelated call in his patrol car when he observed a man walking along railroad tracks wearing a white hat and carrying a large bag. The officer testified that he and the man looked at each other and the man then went into a wooded undergrowth area alongside the railroad track; that he then turned his police car around, pulled up beside the area where the man had gone into the woods, and saw the man’s white hat hanging on tree branches where he had apparently gone in. The officer took the hat and attempted to pursue the man’s path through the woods. When the path ended a short way into the brush, the officer came back out and walked along the railroad tracks at the edge of the woods. From there he could hear someone moving through the bushes. With the man traveling through the brush and the officer paralleling his path along the railroad track, the officer came to a point where a bridge leading to a housing project crossed a ditch. At this point, the officer stood behind a telephone pole and could see the man crouched about ten yards inside the woods where he was looking around in an apparent attempt to locate the officer. The officer stated that he looked at the man for approximately 30 seconds. (He subsequently identified appellant as the man he saw crouched in the woods.) The officer then drew his gun, identified himself and approached appellant. He stated that appellant first seemed to accept his authority, but when he replaced the gun in its holster, appellant ran, but the officer overtook and tackled him. The two men fought on the ground for approximately half a minute when appellant broke loose and ran. The officer chased him through the woods and into the housing complex. As they passed, a man in a car evidently recognized appellant as he called him by his first name. Appellant ultimately escaped.

At this juncture, the officer radioed for assistance but he and the two officers who responded to his call were unable to find appellant though they did find in the woods remnants of the bag which appellant had apparently been carrying and scattered around it two clock radios and nine wristwatches. The radios and watches were later identified as having been stolen from S. B. Hubbard Co. whose warehouse was a short distance up the railroad track from 'the scene of the incident. Appellant’s home was also a short distance along the railroad track from the place of the incident. He worked as an inventory counter at the S. B. Hubbard warehouse but had been on vacation for several days at the time the incident occurred. The evidence shows the stolen property had a wholesale value fro'm $250 to $260; that appellant had access to it in that his job as inventory counter took him into the caged security area where it was kept. Appellant was subsequently arrested at work at S. B. Hubbard. He did not testify at the trial, but in support of his defense of alibi, several friends and family members testified that he had been with them in Miami the entire week of the incident.

Appellant first contends that the larceny information was insufficient in that it does not specify with particularity the person, firm or corporation from whom the property was stolen. The information charges that the stolen property was that of “S. B. Hubbard, Division General Parts Co.” Appellant argues that it is impossible to tell from the allegations of the information whether the property belonged to a person named “S. B. Hubbard” or a company named “Division Genuine Parts”, or both of them, or whether the company named “Division Genuine Parts” was a partnership or a corporation or an individual trading under that name; that the purpose of requiring specificity is to show ownership to be in one other than the accused and to avoid the danger of double jeopardy. The record, however, shows that the true and commonly-known name of the company was S. B. Hubbard, a Division of Genuine Parts Company. The information would not lend itself to a later charge for the same offense. We, therefore, conclude that there is no merit to this contention.

Appellant next contends that the circumstantial evidence was not sufficient to sustain the conviction of larceny. Ap-pellee admits that the state’s case against appellant on the larceny charge was based upon circumstantial evidence but contends that the circumstances amply support the jury’s verdict. We agree and find from a review of the record that the circumstantial evidence was such that the jury could have reasonably concluded that it was consistent with appellant’s guilt and inconsistent with any reasonable hypothesis of his innocence. See Harrison v. State, Fla. App. (1st), 104 So.2d 391 (1958); and Gay v. State, Fla.App. (1st), 258 So.2d 455 (1972).

Appellant further contends that since the evidence to support his conviction of larceny was entirely circumstantial, it was reversible error for the trial judge not to have given an instruction on circumstantial evidence to the jury even though no such instruction was requested. Rule 3.390, F.R.Cr.P., provides in pertinent part as follows:

“No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection . . .”

On this point, the Supreme Court of Florida in Leavine v. State, 109 Fla. 447, 147 So. 897 said:

“The rule, however, is generally accepted that because of the nature of circumstantial evidence in which an inference affecting guilt is drawn from collateral facts which have a natural or generally recognized relation to the inference to be drawn, the court should instruct upon the law relating to such evidence where the prosecution relies solely or substantially ■ upon such evidence. See 16 C.J. 1008. To be available to the accused, however, he should specifically request such an instruction. See 16 C.J. 1058. The above rule is supported by many authorities . . .” (emphasis supplied)

We find no fundamental error in the trial judge not giving the unrequested instruction.

As to appellant’s conviction for “resisting arrest with ■ violence” he contends that the evidence was insufficient to prove that the officer was effecting a lawful arrest and contends that such was a necessary element of proof. Although this crime is commonly called resisting arrest with violence, it is more correctly referred to as resisting an officer with violence in his lawful execution of a legal duty. The crime is stated -in § 843.01, Florida Statutes, which in pertinent part is as' follows:

“Whoever knowingly and willfully resists, obstructs or opposes any sheriff, deputy sheriff, ... in the lawful execution of any legal duty, by offering or doing violence to the person of such officer . . . shall be guilty of a felony of the third degree, . . .”

The information charged that appellant “did unlawfully, knowingly, and willfully resist or obstruct or oppose J. W. Pierotti, a Deputy Sheriff, with the Jacksonville, Duval County, Sheriff’s Office, in the lawful execution of his legal duty, to wit: the arrest of the said John Wesley Price by offering or doing violence to the person of the said J. W. Pierotti.” The crime is resisting the officer with violence in the lawful execution of his legal duty. Here, the evidence does not show that the officer had probable cause to believe that a felony had been or was being committed by appellant at the time he attempted to restrain appellant or that appellant was committing a misdemeanor in his presence at such time. Thus, the officer did not have authority at such time to arrest appellant for a crime. The evidence is sufficient, however, to show that at such time the officer had authority to restrain appellant under the “stop and frisk law”, Section 901.151, Florida Statutes. That statute provides in pertinent part as follows:

“Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.”

The above-related circumstances involving the extremely suspicious actions of appellant which the record shows occurred in a high-crime area, were such as to reasonably indicate to the officer that appellant had committed, was committing or was about to commit a violation of the criminal laws. He, thus, had authority and a legal duty to temporarily detain appellant for the purpose of ascertaining his identity and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense. The evidence shows that appellant resisted with violence the officer’s attempts to detain him. We do not consider that the allegation of the information stated under the videlicet (to wit), that the legal duty the officer was lawfully executing was the arrest of appellant, was a fatal variance of proof. The allegation did not state that appellant was being arrested for a crime. It merely alleged that appellant was being arrested. The officer had authority, as aforesaid, to temporarily detain appellant and it matters not that he did not have authority to arrest appellant for a crime at that time. Appellant committed the present crime when he resisted with violence the officer’s execution of his legal duty to temporarily detain him. Rule 3.140(o), F.R.Cr.P., provides as follows:

“No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoin-der of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.”

The information here was not such as to mislead or embarrass appellant in the preparation of his defense or expose him to danger of a new prosecution for the same offense.

We have considered appellant’s final point and in view of our ruling on the last above point, find it to be without merit.

Affirmed.

BOYER, C. J., and RAWLS, J., concur.