author: RAWLS, Acting Chief Judge.

text:
    CITY OF KEY WEST et al., Petitioners, v. Reubin O’D. ASKEW et al., Respondents.
    Nos. Y-363, Y-430.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
    Rehearing Denied Jan. 28, 1976.

      Joseph C. Jacobs and Robert J. Angerer, of Ervin, Varn, Jacobs & Odom, Tallahassee, for petitioners.
    Robert L. Shevin, Atty. Gen., and James D. Whisenand, Asst. Atty. Gen., for respondents.
   On Motion to Dismiss

RAWLS, Acting Chief Judge.

The City of Key West, International Brotherhood of Electrical Workers, and more than 300 named individuals or businesses filed their petition with this Court to review what they term the “Final Agency Action” of Respondent Administration Commission which promulgated Rule 22F-8 designating “[a] 11 lands in Monroe County” an area of critical state concern. Respondents have moved to dismiss upon the primary grounds that: 1) 'the .action taken by Respondents is not “final agency action” within the purview of Florida Statute 120.68(1), and 2) that the Petitioners do not have standing to prosecute this appellate action in that they are not parties within the meaning of Florida Statute 120.52(9).

Final Agency Action

The statutory basis for designation of areas of critical state concern is Florida Statute 380.05. By the terms of this statute, the State Land Planning Agency “may from time to time recommend to the administration commission specific areas of critical state concern.” The statutory provision then charges the State Administration Commission with the responsibility to “either reject the recommendation as tendered or adopt the same with or without modification and by rule designate the area of critical state concern.” (Emphasis supplied.) Florida Statute 380.031(14) states: “ ‘Rule’ means a rule adopted under chapter 120.” This record discloses without contradiction that the Administration Commission sought to comply with the provisions of Chapter 120 in adopting Rule 22F-8.

We now turn to Chapter 120. Florida Statute 120.52(2) provides in part: “ ‘Agency Action’ means the whole or part of a rule or order, or the equivalent, or denial of a petition to adopt a rule or issue an order.” (Emphasis supplied.) Florida Statute 120.52(3) defines “Agency Head” as the person or collegial body in a department statutorily responsible for final agency action. Florida Statute 380.05 clearly provides that the provisions for areas of critical state concern cannot be implemented until the Administration Commission adopts a rule under Chapter 120. Thus, the Administration Commission is statutorily responsible for “final agency action” in adopting a rule pursuant to the provisions of Florida Statute 380.05 and Chapter 120, Florida Statutes. The adoption of the subject rule constituted final agency action.

Standing of the City of Key West

The “Rule of Department of Administration, Administration Commission, Chapter 22F-8, Land Planning, Part 8, Boundary and Principles for Guiding Development for the Florida Keys Area of Critical State Concern, provides, inter alia:

“21F-8.02 Boundary
“The following area is hereby designated as the Florida Keys Area of Critical State Concern:
“All lands in Monroe County, except:
“1) that portion of Monroe County included within the designated exterior boundaries of the Everglades National Park and areas north of said Park;
“2) all lands seaward of mean high water that are owned by local, state, or federal governments; and
“3) excluding any federal properties.
“22F-8.03 Principles for Guiding Development
“A. Objectives to be Achieved
“1) Strengthen local government capabilities for managing land use and development ....
“5) Protection of the historical heritage of the Florida Keys and the Key West Historical Preservation District;
“6) Protection of the value, efficiency, cost-effectiveness and amortized life of existing and proposed major public investments, including:
“a. the Florida Keys Aqueduct and water supply facilities
“b. sewage collection and disposal facilities
“c. solid waste collection and disposal facilities
“B. Elements Requiring Regulation
“1) Planning and Administration
“a. Each local government jurisdiction should adopt a plan ....
“b. Issuance of development orders should be coordinated ....
“c. Special zoning districts should be created . ...
“d. A community impact assessment statement should be submitted and approved prior to the issuance of zoning and rezoning orders or site plan approval . . . .”

Florida Statute 120.52(9) (a) defines “party” as: “Specifically named persons whose substantial interests are being determined in the proceeding.” The boundary description in the proposed rule includes the City of Key West; the city is a local government; and extensive provisions sought by the enactment of the subject rule are directed to “strengthen the local government” and to compel the local government to initiate zoning and other ordinances pertaining to the use of land within its boundaries. Thus the City of Key West is a specifically named person whose substantial interest is being determined, and it is a party within the meaning of Chapter 120, Florida Statutes.

Standing of “Citizen Petitioners”

The Petitioners in their brief filed in opposition to Respondents’ motion to dismiss characterize themselves as “several hundred residents, citizens, property owners, businessmen of every description” and then bestow upon themselves the title of “Citizen Petitioners”.

The instant proceeding is legislative in character. The legislature, in its wisdom, has delegated to the Cabinet, in the nomenclature of “An Area of Critical State Concern”, functions analogous to those traditionally exercised by city commissions, local boards, and county commissions acting within the police power in restricting the use of real property by landowners. Such restrictions have historically been legislative in character and reviewable by the judiciary solely upon constitutional concepts. “Standing” to judicially challenge a zoning ordinance or the utilization of property by a landowner required that plaintiffs show in what manner they have been damaged as private citizens differing in kind from the general public. The rationale of the prior decisions requiring a plaintiff to allege a special injury separate in kind comports with logic, especially in this age of seemingly unending litigation. It would seem to be most illogical to permit “Citizen Petitioners”, who testify before sundry House and Senate committees against the enactment of a proposed bill, to subsequently litigate in the courts the wisdom of the legislature in enacting same. Although the proceedings now sought to be reviewed are analogous to the legislative process, apparently, logic has been supplanted by the new Administrative Procedure, Act. Salient provisions of the Administrative Procedure Act applicable to standing of “Citizen Petitioners” are:

“120.52(9) ‘Party’ means:
“(c) Any other person, including an agency staff member, allowed by the agency to intervene or participate in the proceedings as a party. Any agency may by rule authorize limited forms of participation in agency proceedings for persons who are not eligible to become parties.” (emphasis supplied)
“120.54 Rule making; adoption procedures.—
“(1) Prior to the adoption ... of any rule ... an agency shall give notice of its intended action
“(2) . • . the agency shall, on the request of any affected person . . . give affected persons an opportunity to present evidence and argument on all issues under consideration appropriate to inform it of their contentions.”

We now turn to the instant proceedings. The State Administration Commission timely promulgated a Notice of Rule Making, wherein it advised all interested persons of proposed Rule Number 22F-8 which establishes the boundaries of the Florida Keys Area of Critical State Concern and set forth the principles for guiding development in such area-. The notice further advised that a public hearing would be held in Key West on March 28, 1975, and a second public hearing would be held in Tallahassee on April 15, 1975, for a decision on the rule. On March 19, 1975, Attorney Joe Jacobs advised the Administration Commission:

“On behalf of our clients hereafter named, we request as affected parties, an opportunity to present evidence and argument on all issues under consideration appropriate to inform you of our contentions ....
“We represent the following persons who would each like to testify at any hearing on the final report and recommendations for the Florida Keys — Area of Critical State Concern: [naming 42 individuals]” (Exhibit No. 7)

On March 26, 1975, Attorney Jacobs submitted to the Administration Commission the names of 12 additional persons that he represented regarding the proposed adoption of Rule 22F-8 (Exhibit No. 8). At the hearing held in Key West on March 28, Attorney Jacobs appeared on behalf of the foregoing named clients, adduced testimony by a number of witnesses and vociferously participated in the “agency action”. Thus, the agency, pursuant to Florida Statute 120.52(9) (c), recognized these “interested persons”, allowed them to intervene and participate in the proceedings as parties. The agency did not by rule authorize limited forms of participation in the proceedings for persons who were not eligible to become parties, even though such might well have been appropriate in this type of proceeding.

The City of Key West is an affected party and the 54 named “interested persons” as set out in Petitioners’ Exhibits 7 and 8 have standing to appeal the agency action adopting Rule 22F-8, and as to these parties, Respondents’ motion to dismiss is denied. As to all other persons and entities named in the notice of appeal, the motion to dismiss is granted.

It is so ordered.

MILLS and SMITH, JJ., concur.

      . Composed of members of the Florida Cabinet.

      . . Excepting Everglades National Park and areas north of the Park; all lands seaward of mean high water mark owned by local, state, or federal governments, and any federal properties.

      . Also, pursuant to Florida Statute 120.52 (9)(b), the City of Key West, is a person whose substantial interest will be affected by the proposed agency action.

      . Sarasota County Anglers Club, Inc. v. Burns, 193 So.2d 691 (1 Fla.App.1967). See Sarasota County Angler’s Club, Inc. v. Kirk, 200 So.2d 178 (Fla.1967). Also see United States Steel Corp. v. Save Sand Key, Inc., 303 So.2d 9 (Fla.1974).

      .Chapter 74-310, Laws of Florida 1974.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    Deanna V. BYRD, Appellant, v. William R. BYRD, III, Appellee.
    No. 75-725.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 1975.
    Rehearing Denied Jan. 26, 1976.

      Gerald R. Colen, St. Petersburg, for appellant.
    Wayne O. Smith, of Wallace & Smith, St. Petersburg, for appellee.
   SCHEB, Judge.

The trial court entered a judgment of dissolution of marriage, adopting a property settlement agreement entered into by the parties but modifying the support provision to limit the wife’s alimony rights. Upon appeal by the wife, we reverse.

The appellant wife and appellee husband were married in 1961, and have three children, ages 11, 8 and 6. The husband, a college graduate, is executive vice president of a bank. His gross earnings are approximately $20,000 per year. The wife is age 33 and has a high school education. She holds part time jobs as a teacher’s aide and cashier, with a doubtful future as to one of these positions. Presently her gross earnings are approximately $90.00 per week. The parties separated in June 1974, and on July 6, 1974, entered into a property settlement agreement covering child custody, division and sale of property, and child support and alimony. The terms were discussed at the home of the husband’s parents and after the parties reached an accord, the husband’s father reduced their terms to writing. Albeit, no legal counsel was present, both the husband and his father are college trained and while the agreement may be'lacking in the artful language usually employed by attorneys, it, nevertheless, represents a comprehensive resolve of the legal aspects of their matrimonial relationship. Prior to the judgment of dissolution, the wife conveyed her interest in a parcel of jointly owned real estate and the proceeds were, in accordance with the agreement, largely used to pay off some marital debts.

On August 8, 1974, the husband petitioned for dissolution, seeking to incorporate the agreement into any forthcoming judgment; subsequently he amended his petition and requested the court to set it aside. That proceeding was dismissed and on November 18, 1974, the instant petition for dissolution was filed by the wife. She sought to enforce the agreement. At this stage, the husband sought to set it aside as being unconscionable, unfair and overreaching. Counsel for the parties stipulated that the agreement was not tainted by any fraud or duress.

The evidence at trial did not support overreaching by the wife; nor was there a showing of unfairness. The husband testified he was well aware of his own financial circumstances when he entered the agreement and he offered no evidence of any subsequent change in his financial situation. The thrust of his claim was based upon being upset and not having counsel when he signed the agreement.'

The trial judge granted the dissolution and included in the judgment all of the terms of the agreement except the court decreed: “. . . the support provision contained therein [shall] be set aside.” In sum, the effect of the court’s ruling was to strike the wife’s entitlement to $700.00 per month alimony and support for herself and the three minor children and in lieu thereof, to require the husband to pay her $75.00 per week for three years as rehabilitative alimony with an additional $75.00 per week for child support.

This appeal focuses on the role of a trial judge in reviewing a post-nuptial property settlement agreement untainted by fraud, duress, or overreaching by either of the parties.

The appellant wife urges we align this court with the recent opinion in our sister court in Bailey v. Bailey, Fla.App.4th 1975, 300 So.2d 294, citing the rationale of Posner v. Posner, Fla.1970, 233 So.2d 381, concerning ante-nuptial agreements. There the Fourth District Court held that a post-nuptial property settlement agreement, not tainted by fraud or overreaching and fairly entered into after full disclosure, is valid and binding as to conditions existing at the time of the agreement. Such agreement, the court opined, is subject to modification by the trial court only upon a showing under Fla.Stat. § 61.14 of a change of circumstances subsequent to the execution of the agreement.

The appellee husband, on the other hand, cites us to Dawkins v. Dawkins, Fla.App.2d 1965, 172 So.2d 633, wherein we held the trial judge did not abuse his discretion by rejecting that part of a property settlement agreement whereby a wife waived alimony, the court there having found that the rejected part of the agreement was unfair and overreaching.

We affirm the result reached in Dawkins, but hold that here the trial judge abused his discretion in refusing to incorporate the entire agreement of the parties into the judgment of dissolution. We need not and do not hold as our sister court, the Fourth District has in Bailey that it is necessary for the court to find fraud, overreaching, or a change in circumstances before the trial court may modify a post-nuptial property settlement agreement. Clearly, a trial judge is vested with discretion to determine the fairness of these agreements in light of the evidence of the needs and abilities of the respective spouses before incorporating the agreement into a final judgment. But, in the instant case the trial judge abused his discretion because:

(1) There was no evidence of unfairness or overreaching.
(2) There was sufficient evidence of the husband’s ability to comply with the terms of the agreement.
(3) There was abundant evidence of the wife’s needs for more than a rehabilitative type of alimony.
(4) The evidence shows the wife, in reliance on the total agreement, had performed in part by joining in sale of certain improved property to enable the husband to discharge certain marital debts.

Effectively the court here converted an agreement freely and voluntarily entered into by the parties whereby the wife was provided the security she requires to maintain a home life for their children into a vehicle which afforded her only a rehabilitative alimony for a three year period; and the record does not justify a conclusion that she will likely be in any better position three years from now.

Accordingly, the case is reversed and remanded to the trial court for further proceedings consistent with this opinion.

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


author: WALDEN, Chief Judge.

text:
    Raymond FARLEY, Appellant, v. STATE of Florida, Appellee. Charles CURRIE, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-557, 74-558.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
    Rehearing Denied Jan. 28, 1976.
    Richard L. Jorandby, Public Defender, and Leon St. John, Asst. Public Defender, West Palm Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joel D. Rosenblatt, Asst. Atty. Gen., Miami, for appellee.
   WALDEN, Chief Judge.

This is an appeal from a rape conviction.

Defendants argued they were denied speedy trial. We find that there were adequate facts in evidence to show that the speedy trial rule was not violated.

Defendants argued the trial court erred in permitting an expert witness, a doctor, to testify that it was his opinion that the alleged victim had been raped. We agree and reverse for a new trial.

The facts are such that the claims made by prosecutrix and defendants are equally credible. It is undisputed that the prosecu-trix was drinking alone at two lounges in Fort Lauderdale; that she became intoxicated after an eight hour stay in the second lounge; that she left that lounge at about 10:30 p.m. with the two defendants, also intoxicated and strangers to her; and that they proceeded to a room in a Holiday Inn (next door to the lounge). The claims then become divergent.

The prosecutrix testified she was assaulted and raped, and that she then waited until the defendants were asleep before she sought help. She left the room about 12:00 p.m., seeking aid as she, was badly beaten around the face. She first claimed she wished to bring charges of assault, not rape; subsequently she brought the later charge.

One defendant testified the prosecutrix had willing intercourse with them, that they fell asleep, that the other defendant awoke to find her rifling his pants pockets, and that he then began to beat her. The testifying defendant said he then broke up the fight, took the prosecutrix to the bathroom to clean her up with a towel as she was bleeding profusely from the face, and then told her to leave, which she did.

The alleged victim’s underwear, soiled with her type blood, was found in the bedroom. Defendants did not explain the presence of the underwear; the prosecu-trix claimed the blood appeared on the underwear when the hand of one of the defendants,- bloody from hitting her, was used to remove them from her. The underwear was not torn except for portions cut to take blood samples. There was no blood on the bed but there was a bloody towel dropped between' the beds. The prosecutrix was examined by a doctor who testified to the presence of sperm in her vagina.

There was a crowd outside’ the room attracted by a commotion minutes before the prosecutrix emerged. This would be consistent with the claim that the beating took place at the end of the time period.

Both prosecutrix and defendants initially gave false names to the police; the defendants, when first confronted by police, denied all knowledge of the prosecutrix. In conclusion, there were numerous facts and explanations which meshed with the claims of either of the parties, there were circumstances that, though unexplained, could be interpreted as supporting the claims of either of the parties.

In the setting of this tangled skein of facts, the following testimony was elicited by the prosecutor from the witness doctor:

Q. “Now, as a result of your examination and from your experience, both practical and also medical experience, do you have an opinion as to Mrs. Ford’s condition at that time?
***** *
A. “Well, my opinion from the history and from the cursory examination and from finding the vagina loaded with sperm at the time, was that she had been raped.”

This opinion by the doctor, that the alleged victim had been raped, was erroneously admitted into evidence.

The prosecutrix had been badly bruised about the face, but no trauma or bruises were present elsewhere. All • the facts being as described, the doctor could not properly opine that the cause of the injuries was rape, hut only that she had had intercourse, and had been beaten — a conclusion that would be permissible. In North v. State, 65 So.2d 77 (Fla.1952), the following opinion was permitted:

“Because of the multiplicity, nature and distribution of various wounds on this body, I concluded that they were most consistent with the person having been assaulted, principally by blunt force, and that the method of assault is most consistent with strangulation.” Id. at 87.

but the Court carefully noted:

“This question did not call for an answer from Dr. Mills as to whether or not there was a felonious assault or who made the assault. The question simply called for an opinion from this expert witness as to what caused the bruises and contusions upon and in the throat of the deceased.” (Emphasis supplied.) Id.;

Johnson v. State, 314 So.2d 248 (1st DCA Fla.1975).

Further, for the doctor to conclude the prosecutrix had been raped was to conclude that the defendants, who had admitted the beating of the prosecutrix, were guilty of a certain criminal act in connection with the beating. Such an opinion is not permissible; Gibbs v. State, 193 So.2d 460 (2d DC A Fla.1967):

“The opinion of a witness as to the guilt or innocence of an accused person is not admissible in evidence.” Id: at 463.

See Coppolino v. State, 223 So.2d 68 (2d DCA Fla.1968). We are very aware that in some cases this very same testimony might be simply harmless error, if error at all, and we limit our decision here strictly to the facts at hand.

In light of the very closely drawn issues, and the fact that the cause of the one party’s injuries were subject to reasonable conflicting claims, and in view of the fact that 'defendants’ motion to strike the opinion testimony was denied, we hold the admission of the opinion testimony was reversible error, and that the cause must be remanded for a new trial.

Reversed and remanded.

OWEN and DOWNEY, JJ., concur.


author: OWEN, Judge.

text:
    Catherine MATTHEWS, Appellant, v. DIVISION OF ADMINISTRATION, STATE of Florida, DEPARTMENT OF TRANSPORTATION, et al., Appellees.
    No. 73-599.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
    Rehearing Denied Jan. 28, 1976.

      Patrick L. Bailey, Sullivan, Cochran, Ranaghan & Bailey, Pompano Beach, for appellant.
    ' Geoffrey B. Dobson, Gen. Counsel, and Barbara Ann Dell McPherson and Winifred S. Smallwood, Tallahassee, for appel-lee-Dept. of Transp.
   OWEN, Judge.

The principal issue in this eminent domain case is whether the measure of damages recoverable when an established business is totally destroyed by the taking is limited to the owner’s loss of profits from the business.

Appellant, defendant below, owned a laundromat business which, she alleged, had been totally destroyed as a result of the taking of het adjacent property for right of way purposes. At trial she produced an expert who so testified, expressing the opinion that the value of the business was “within the area of $28,000 to $32,000.” In explaining this, the witness stated that he had assigned a $15,000 value to the equipment in defendant’s shop and a $13,000 value to the goodwill of the business, this latter figure being selected because it equalled the annual volume of business. Upon cross-examination the witness conceded that he was not familiar with the profit structure of the business after which the following testimony was elicited from him:

“Q Then it would be most difficult, wouldn’t it, as a matter of logic, for you to place a value on a business when you haven’t determined what that business' has, in effect, done for the past five years ?
“A No, not really. Because the equipment is worth something, and so is the volume that has been raised. Now, it takes a certain amount of time and effort and money to bring up a volume. And when an operation starts, it might be two or three or four or five or six months, depending on the address of the person, before anything is established.
“Q What if I were to tell you, just hypothetically, since you are an expert in this field, that that business did not make a profit for the five years immediately preceding your analysis, what would you say to that?
“A I would say there are so many other ones that have the same structure as that and they are selling for about the same price that I have mentioned.
“Q I am not discrediting what you are saying. I am merely saying this business is a different matter. This is a specific business owned by Mrs. Catherine Matthews, not the businesses out in the field, the comparable businesses about which you have told us. But this is a specific business, and she must qualify under this business.
“All right. Then you did not consider the profit taking or loss of the particular business owned by Catherine Matthews for the five years immediately preceding January of 1971?
“A No, I did not.”

The State moved to strike the testimony of this witness on the grounds that there was no evidence of a loss of profits to defendant’s business and thus the testimony was speculative and conjectural. The motion was denied, but after the jury had subsequently returned a verdict for the defendant which included the amount of $20,000 for business damages, the court granted the plaintiff’s motion for a new trial on the grounds that the admission of such testimony was error “ . . . in that the same was speculative and failed to consider the loss of profit[s] to the defendant’s business. . . .” This is the order appealed.

In granting the motion for new trial, it is apparent that the trial court felt (in line with appellee’s contention on appeal) that loss of profits is the sole measure of the business damages recoverable under Fla.Stat. § 73.071(3) (b) (1973) when an established business has been totally destroyed by the taking. It is our view that such position is not correct and that it was error to vacate and set aside the verdict and grant appellee a new trial.

Compensation for business damages is entirely a creature of statute, State Road Department v. Abel Investment Company, 165 So.2d 832 (2nd DCA Fla. 1964), and is a form of relief which most jurisdictions do not provide. The Legislature did not define or otherwise elaborate upon what constitutes “business damages,” but' there is absolutely no indication that it intended this statute to be construed as allowing business damages for lost profits only. The statutory language, which authorizes compensation for “the probable damages to such business which the denial of the use of the property so taken may reasonably cause”, simply does not warrant this restrictive interpretation.

The Florida courts have apparently had no occasion to expressly define the proper measure of business damages as contemplated by the statute. The State relies on two Florida cases in support of its position, but neither of these cases purports to definitively define business damages.

The first of these cases, City of Tampa v. Texas Co., 107 So.2d 216 (2nd DCA Fla.1958), to the extent that it does relate to business damages, instead of supporting the State’s position, in fact undermines it. In that case, the court was concerned primarily with issues not relevant here, but in the course of a discussion of who may recover for business damages, the court, at 225, noted:

“The general rule [which disallows business damages] ... is not applicable where there exists a statutory right to compensation for loss of profits and- other business losses such as exists in Florida by virtue of [the predecessor statute to § 73.071(3)(b)].” (e. s.)

Thus, the emphasized language would at least imply that the 2nd DCA has interpreted Florida’s business damage statute as providing recovery for more than simply loss of profits.

The other case relied upon by the State is LeSuer v. State Road Department, 231 So.2d 265 (1st DCA Fla.1970). In determining the sufficiency of a jury verdict in that case, the court distinguished between severance damages and business damages, as follows (at 267-8):

“In appellants’ argument in support of the first ground for reversal it is contended that the minimum of $65,000 that it would cost to relocate the facilities in his business on that portion of his property not taken are business damages and therefore the jury’s verdict had to be at least in that amount in accordance with the rule that the jury cannot ignore evidence of business damages. We cannot agree with this thesis. The cost of effecting physical changes or modifications in the premises necessitated by a taking are in the nature of damages to the remainder or severance damages, not business damages. The latter class of damages within the meaning of Section 73.-071(3) (b), Florida Statutes, F.S.A., are more in the nature of lost profits attributable to the reduced profit-making capacity of the business caused by a taking of a portion of the realty or improvements thereon. A typical example of such business damages was before this court in Sallas v. State Road Department, 220 So.2d 378 (Fla.App.1969).” (e. s.)

Thus, in referring to business damages, the court did not state that lost profits were the only compensable item but only indicated that such was most likely to be the type of damage claimed. Moreover, as appellant/condemnee here points out in her reply brief, the LeSuer court had in mind the more usual situation of a taking which results merely in reduced profit-making capacity, rather than that which results in the entire destruction of the business as was shown to have occurred here.

That distinction, i.e., the difference between merely reducing the profit-making capacity of a business and totally destroying it, is an important one. Where an established business is able to continue in operation at the identical location, albeit with diminished volume, it can be fairly argued that the “effect of the taking” does not seriously diminish customer goodwill c. the value of the business equipment. On the other hand, common experience teaches us that where the “effect of the taking” is to totally destroy an established neighborhood-retail business, there is, or at least well may be, a substantial loss on the value of the business equipment and the value of customer goodwill. As is recognized in McCormick, Damages, § 132, at 537 (1935), the condemnee “loses good will to the extent that his patronage cannot be transferred to a new location. In the case of retail stores and other businesses, where customers are dealt with directly, good will is to a substantial degree attached to the old place.” Appellant’s witness, whose qualifications were not challenged, placed a market value on the equipment of $15,000 and a value on the goodwill of the business at $13,000. Appellant testified that she went out of business and that she liquidated the equipment for approximately $4,700, presumably the best price she could obtain for it under the conditions. The testimony of appellant and her expert witness was competent and relevant and would sustain the amount of the verdict for business damages.

While a persuasive argument could be made that the value of goodwill in a business making a profit would ordinarily be greater than the value of goodwill in a business not shown to have made a profit, such argument would nonetheless go to the weight of the evidence rather than to its competency. That a business losing money may have a “going-concern value” was recognized by the United States Supreme Court in the case of Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949) wherein the court stated, at 19, 69 S.Ct. at 1444:

“Though not capitalized and carried on the books, it is obvious that such [going-concern value] may be present even in a business losing money or at any rate not making enough to have any ‘excess’ income. A relevant measure of its value, however, would be the gross income of the business, as is recognized by the method of estimating going-concern value that has been employed in cases dealing with the excess-profits tax base of laundry businesses. See Appeal of Metropolitan Laundry Co., 2 B.T.A. 1062; Pioneer Laundry Co. v. Commissioner, 5 B.T.A. 821.” (e. s.)

See also, the case of In re Application and Petition of Huie, 285 App.Div. 1206, 140 N.Y.S.2d 658 (1955) recognizing that profits are not the full measure of the value of a business, and hence, of the compensation due its owner where that business is destroyed by eminent domain proceedings, the court stating, “ . . .it may well be that value may exist in a country store business which operates for many years and sustains those who work in it, that cannot readily be demonstrated by conventional accounting methods.”

In summary, we hold:

(1) Neither Florida’s business damage statute nor case law limits business damage compensation exclusively to loss of profits, but particularly where a business is totally destroyed, there are business losses beyond profit losses, attached to moving or selling equipment and loss of goodwill;

(2) Goodwill need not be valued with reference to profit and loss. Goodwill can exist as a valuable asset even in a business which shows only a lose. Goodwill can be valued in relation to business volume, as was done by the witness in the case at bar;

(3) The' testimony of the defendant’s witness relating to defendant’s business damages was properly admitted; and it was therefore error to grant plaintiff’s motion for a new trial.

The order granting a new trial is reversed and this cause is remanded with directions to reinstate the jury verdict for defendant and to enter judgment thereon.

Reversed and remanded.

MAGER and DOWNEY, JJ., concur.

      . Fla.Stat. § 73.071(3) (b) (1973) provides:
      “(3) The jury shall determine solely the amount of compensation to be paid, which compensation shall include:
      (a) The value of the property sought to be appropriated; and
      (b) Where less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking, including when the action is by the division of road operations of the department of transportation, county, municipality, board, district or other public body for the eon-demnation of a right-of-way, and .the effect of the taking of the property involved may damage or destroy an established business of more than five years’ standing, owned by the party whose lands are being so taken, located upon adjoining lands owned or held by such party, the probable damages to such business which the denial of the use of the property so taken may reasonably cause; any person claiming the right to recover such special damages shall set forth in his written defenses the nature and extent of such damages.” (e. s.)

      . The term “going-concern value” appears to be indistinguishable from, and used by the court interchangeably with, the term “goodwill”.


text:
    Ronald BELK, Appellant, v. Benjamin H. OEHLERT et al., Appellees.
    No. 75-126.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
    Rehearing Denied Jan. 28, 1976.

      Sylvan Burdick and Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellant.
    Stephen A. Rapp of Gunster, Yoakley, Criser, Stewart & Hersey, Palm Beach, for appellees Benjamin and Alice Oehlert.
    Frederick E. Hollingsworth of Sales & Christiansen, Palm Beach, for appellee Earl A. Hollis, Inc.
   WALDEN, Chief Judge.

Plaintiff and his wife contracted to sell their home to defendant and his then wife. A Deposit Receipt and Contract for Sale and Purchase was signed by the parties, and a $38,000 deposit was made by buyer. Buyer failed to perform. Seller brought suit against buyer and the broker to recover the deposit as damages for breach. A clause in the Deposit Receipt Contract provided that seller should retain the deposit if buyer breached. ■

The broker counterclaimed for one-half of the deposit, based on an agreement between broker and seller, made a part of the Purchase Sale contract.

The trial court entered a summary judgment in favor of the broker and the seller, as follows:

“(2) That plaintiffs, [sellers] do have and receive and recover of and from defendants, [buyers] jointly and severally, on Count 1 of their complaint the sum of $38,-000.00.
“(3) That defendant [broker] do have, receive and recover of and from plaintiffs, [sellers] . . . ., on its counter-claim and of and from defendants [buyers] on its crossclaim the sum of $19,000.”

We affirm, with modification, these awards, as the evidence clearly shows the buyer breached his contract. Paragraph two grants sellers a judgment against buyers for the amount which has been deposited with the broker, while paragraph three improperly requires buyers to be liable to broker for that amount owed to broker by seller. We, therefore, modify the paragraphs to a single order as follows:

“That plaintiffs, BENJAMIN J. OEH-LERT and ALICE OEHLERT, shall receive and recover from the broker, EARL A. HOLLIS, INC., as escrow agent, the amount of $38,000, less the sum of $19,000 owed under contract by plaintiffs to broker, which amount broker shall retain as agreed for compensation.”

The trial court order included the following:

(4) “That defendants [buyers]
take nothing by their counterclaim against plaintiffs [sellers] and their crossclaim against defendant [broker] . . . and that as to that counterclaim and crossclaim those other parties go hence without day.”

We affirm that portion of the order that buyers take nothing by their counterclaim against sellers. Buyer attempted, on appeal, to claim that broker was an agent for seller so as to preclude seller’s recovery, but buyer failed to allege this theory at trial. Furthermore, buyer’s own testimony does not support any notion that any such agency relationship existed, as he testified that the seller was unaware of any promise by broker to sell the buyer’s property.

We reverse that' portion stating that buyer take nothing from the broker on the crossclaim. The buyer had cross-claimed against broker, alleging:

“At the time' he signed the contract, attached to Plaintiffs’ Complaint, he did so in reliance upon the assurances of Earl A. Hollis and Toni Hollis, employees of Defendant, EARL A. HOLLIS, INC., that prior to the time of closing set out in the contract, they would obtain a purchaser for Belk’s residence at 235 Phipps Plaza, Palm Beach, or would obtain a purchaser for the property in the contract sued on herein.
******
“[That] EARL A. HOLLIS, INC., [was] fully informed and advised as to the Defendant’s Ronald Kent Belk, financial circumstances, and knew that without procuring the sale of the Phipps Plaza property, he would be hard pressed or unable to consummate the purchase of the Oehlert property. Nonetheless, they urged and persuaded him to enter into the agreement with the Plaintiffs on their assurance that they would either procure a purchaser for the Phipps Plaza Property or would procure a buyer for the Oehlert property,”

and that the broker failed to so perform. Buyer claimed that broker should be liable to buyer for damages. The crossclaim raises factual issues, with contradictory testimony as to the existence of promises made by the broker. The existence of these issues at least preclude the entry of a summary judgment as to the possibility of damages owed by broker to buyer. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Visingardi v. Tirone, 193 So.2d 601 (Fla.1966); Harvey Bldg., Inc. v. Haley, 175 So.2d 780 (Fla.1965).

We respectfully remand for further proceedings in accord with this opinion.

Affirmed in part; reversed in part, and remanded.

OWEN and DOWNEY, JJ., concur.


author: PER CURIAM.

text:
    J. Colon JONES, d/b/a Moody Container Services, et al., Appellants (Defendants), v. PARKER AND MICK WELDING AND MACHINE WORKS, INC., a Florida Corporation, Appellee (Plaintiff).
    No. Y-183.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1976.
    David W. Carstetter, of Kent, Sears, Durden & Kent, Jacksonville, for appellants.
    Jere D. McWinn and Harris Ball, Jacksonville, for appellee.
   PER CURIAM.

Upon considering the briefs, the record, and oral argument, we find no reversible error.

Accordingly, the final judgment is affirmed.

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


text:
    AMERICAN PACIFIC INDUSTRIES CORPORATION, Appellant (Plaintiff), v. ARCHER INDUSTRIES, INC., et al., Appellees (Defendants).
    No. Y-144.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1976.
    Selig I. Goldin of Goldin & Turner, Gainesville, for appellant.
    Harvey R. Klein, Ocala, for appellee.
   PER CURIAM.

Upon considering the briefs, the record, and oral argument, we find no reversible error.

Accordingly, the final judgment is affirmed.

BOYER, C. ■ J., and MILLS and SMITH, JJ., concur.


text:
    James Curtis MALONE, Appellant, v. STATE of Florida, Appellee.
    No. X-411.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1976.
    Richard W. Ervin, III, Public Defender; and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. See State v. Malone, 288 So.2d 549 (Fla.App. 1st 1974); State ex rel. Malone v. Shepard, 298 So.2d 413 (Fla.1974); and State v. Lott, 286 So.2d 565 (Fla.1973).

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


text:
    FROSTPROOF LINKS, INC., Appellant, v. MALTER INTERNATIONAL CORPORATION, Appellee.
    No. 75-683.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1975.
    David B. Higginbottom, Frostproof, for appellant.
    Rodney Durrance, Jr., of Jollay, Stewart & Durrance, P. A., Winter Haven, for ap-pellee.
   PER CURIAM.

The judgment is affirmed, as modified by the reduction of $188.76, representing interest erroneously awarded in the absence of a claim in the complaint and in excess of the amount of the ad damnum clause. Seaboard Air Line Ry. v. Brown, 1919, 77 Fla. 155, 81 So. 107.

BOARDMAN, Acting C. J., and GRIMES and SCHEB, JJ., concur.


text:
    Charles A. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 75-212.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1975.
    Richard L. Jorandby, Public Defender, and Daniel T. O’Connell, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals from his conviction of possession of heroin and cocaine. We reverse and remand for a new trial.

The testimony was in strong conflict and hence defendant’s credibility was an imperative issue which made the mentioned error harmful.

The state improperly brought out on cross-examination of the defendant his various specific arrests and criminal charges. We reverse upon authority of Fla.Stat. § 90.08 (1973); McArthur v. Cook, 99 So.2d 565 (Fla.1957); Mead v. State, 86 So.2d 773 (Fla.1956); Whitehead v. State, 279 So.2d 99 (Fla.App. 2nd, 1973).

The judgment is reversed and the case remanded for a new trial.

Reversed and remanded.

WALDEN, C. J., and OWEN and DOWNEY, JJ., concur.


text:
    David MANGAM, Appellant, v. STATE of Florida, Appellee.
    No. 75-4.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1975.

      Richard L. Jorandby, Public Defender, and James R. Merola, Sp. Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals from the revocation of his probation.

It is manifest from the colloquy that the trial court, in effect, ruled that appellant did not have Fifth Amendment constitutional rights and penalized him for refusing to testify.

We reverse upon authority of Heath v. State, 310 So.2d 38 (Fla.App. 4th, 1975), and remand for a new hearing.

Reversed and remanded.

WALDEN, C. J., and OWEN and MA-GER, JJ., concur.


text:
    In re ESTATE of Blanche T. CLARK, Deceased.
    No. 75-1235.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
    Rehearing Denied Jan. 28, 1976.
    Peter S. Penrose of Haines & Penrose, North Palm Beach, for appellants, Helen T. McLaren, Alice T. Brausch and Jean T. Stone.
    No appearance for appellee.
   PER CURIAM.

Upon authority of Berger v. Jackson, 156 Fla. 251, 23 So.2d 265 (1945), the order striking claims against the estate of Blanche T. Clark as untimely is reversed.

Reversed and remanded.

WALDEN, C. J., and OWEN and DOWNEY, JJ., concur.


text:
    BARNARD & RUSSELL ENTERPRISES, INC., a Florida Corporation, d/b/a Honda City, Petitioner, v. John D. CALVIN, as Director of the Division of Motor Vehicles of the State of Florida, and P & M Transit Company, Inc., d/b/a Honda of Daytona, Respondents.
    No. X-126.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1975.
    Rehearing Denied Jan. 26, 1976.
    Joseph C. Jacobs and Robert J. Angerer, of Ervin, Varn, Jacobs & Odom, Tallahassee, for petitioner.
    Edwin E. Strickland, Enoch J. Whitney, Tallahassee and Harry W. Meshaw, Jr., Jacksonville Beach, for respondents.
   PER CURIAM.

Petition for Writ of Certiorari is denied. See this Court’s opinion in Bill Kelley Chevrolet, Inc. v. Calvin, 322 So.2d 50, opinion filed October 31, 1975, rehearing denied December 5, 1975.

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


text:
    JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, a Massachusetts Corporation, Appellant, v. MARK-A, INC., a Florida Corporation, Appellee.
    No. 75-544.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1975.
    Sam Bucklew, of Bucklew, Ramsey, Ott & Gardner, Tampa, for appellant.
    Martin N. Strelser, of Lancaster &' Strelser, Tampa, for appellee.
   PER CURIAM.

Appellee, Mark-A, Inc., filed suit against appellant, John Hancock Mutual Life Insurance Company, claiming that upon an inventory taken by appellee it was determined that a quantity of furniture, entrusted to the appellant, was missing. The cause was tried on the theory of bailment before the court without a jury. Final judgment was entered in favor of appellee, assessing damages against appellant in the amount of $8,000. Appellant timely filed this appeal.

We have considered the three points raised by appellant and deem that only one of them merits discussion. This issue concerns the basis upon which the trial court awarded damages to appellee.

We agree with the well-established principles that awards for damage must be supported by evidence and cannot be based on speculation and conjecture. On the other hand, the law is also clear to the effect that where damages cannot be precisely and mathematically determined, the trial judge is vested with reasonable discretion in making awards of damages. We are persuaded that the trial judge’s award in this case is not based substantially on speculation, but, rather, on a sound exercise of discretion in a reasonable manner and on sufficient competent testimony.

We hold that the trial judge was correct in his rulings of law and his findings of fact are supported by substantial evidence.

Affirmed.

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


text:
    Frances Owen WARRINER, a/k/a Frances O. Warriner, Appellant, v. CASA LOMA LAND CORP., a Florida Corporation, etc., et al., and Chase Federal Savings and Loan Association, a United States of America corporation, etc., Appellees.
    No. 74-551.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Rehearing Denied Jan. 23, 1976.
    Frances Owen Warriner, in pro per.
    Berkell & Straus, Sue Rose Samuels, North Miami Beach, Terrell, Baisden, Peterson, Stanton & Stillman, Miami Beach, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The opinion of the trial court sets forth its finding as follows:

******

“ . . . the identical claims and legal theories had been previously adjudicated by the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida and by the United States Fifth Circuit Court of Appeals as evidenced by a brief filed by the Plaintiff as Appellant in the United States Court of Appeals, Fifth Circuit, Case No. 72-1550, which affirmatively and on its face demonstrates that there is nothing in the Amended Complaint which was not or could not have been raised, argued or urged by the Plaintiff in the previous litigation; and because there must be an end to the litigation (See Butler v. Bertram & Co., 281 So.2d 227 (3rd D.C.A.1973)) . . .”

******

The record supports the finding. It is therefore affirmed.

Affirmed.


text:
    Carol Ann BAKER, Appellant, v. STATE of Florida, Appellee. Richard BAKER, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-143, 75-144.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
    Rehearing Denied Jan. 30, 1976.
    Philip G. Butler, Jr., of Foley, Colton & Butler, West Palm Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Margarita Esquiroz, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

Affirmed. State v. Laiser, Fla., 322 So.2d 490, opinion filed October 29, 1975.

WALDEN, C. J., and CROSS and MA-GER, JJ., concur.


author: JOHNSON, W. CLAYTON, Associate Judge. DOWNEY, Judge

text:
    INNKEEPERS INTERNATIONAL, INC., a Delaware Corporation doing business in the State of Florida, Appellant, v. McCOY MOTELS, LTD. and McCoy Motels, Inc., Appellees.
    No. 74-617.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
    Rehearing Denied Jan. 29, 1976.

      Steve L. Henderson of Jones, Paine & Foster, Vero Beach, for appellant.
    Richard W. Bates, P. A., Orlando, for appellees.
   JOHNSON, W. CLAYTON, Associate Judge.

Appellant, plaintiff in the trial court, brought suit against appellees, defendants, for damages based upon breach of an employment contract. The very able trial judge entered a final judgment after trial, before the court, finding that the appellant had failed to prove its case and from which adverse judgment this appeal was instituted.

The fact situation involved an executed contract consisting of two letters and an agreement all dated September 14, 1970. Said instruments were specific as to the nature of appellant’s services and also provided for appellant to render consultation services to appellees during the construction of appellee’s motel, Jet Port Inn in Orlando, Florida, and for appellant to provide for the management of the newly constructed motel for a three-year period at an. annual fee of $32,500. At the time these instruments were executed,' construction had not yet begun on the motel and appellee had not yet obtained the necessary financing for the construction. The exact date when the term of management would commence was intentionally left blank so that.paragraph 7 of the agreement reads:

“7. Principal [appellee] agrees to make the establishment subject to the management of Innkeepers International, Inc., [appellant] on or before -.”

Appellant contended that the date in said paragraph 7 was omitted only because the date of the motel completion was not known and that the parties intended that the time of commencement of appellant’s services was to be measured in relationship to the opening date. Appellee contended that said date omission occurred in paragraph 7 because appellee did not know if it would ever either have a motel or avail itself of the services of appellant as a manager and appellee intended to reserve that decision until a later time. • Further, the testimony of appellee’s representative officer was that he intended the instruments to be an agreement to agree at a later time as to whether the services of appellant would be utilized on the project.

On or about September 1, 1971, after construction had begun, appellant received a letter from appellee stating that appellee did not intend to use appellant’s management services. Appellee’s motel was completed and commenced operation under another manager.

With respect to appellant’s claim of damages, consisting of loss of profits, ap-pellee contended that same were too speculative to afford recovery.

Appellees utilized and paid for certain preconstruction ' consulting services furnished by appellant pursuant to that part of the contract relating to consultation services.

The evidence clearly reflects that at the time of the execution of the contract, it was impractical (if not impossible) to insert a date or time for commencement of appellant’s managerial services since there was no way of predicting when, indeed, whether the Jet Port Inn would commence. Discussions between the parties following execution of the contract reveal appellees’ opinion that appellant’s manager should be placed on the project no earlier than 90 days prior to completion, which opinion appellee described as “philosophical discussions”. While the parties may have disagreed as to the exact time appellant’s performance was to begin, there is no disagreement as to the fact that it would begin sometime prior to completion of the motel. Implicitly, the event on which the commencement of performance depended is the construction completion date, which construction completion condition was satisfied. Even if appellees’ contention that there was no agreement as to time of commencement of performance is accepted we find that the date of commencement was a non-essential element in the minds of the contracting parties.

As a general rule, presence of blanks in a contract is fatal to the enforcement if the blanks occur in a provision dealing with an essential term of the contract. If, however, the blanks deal with non-essential terms, the contract may be enforced. 17 C.J.S. Contracts § 65 (1963).

A contract is not necessarily lacking in all effect because it expresses the idea that something is left to future agreement. An agreement to agree to do a certain specified thing, all the conditions and terms of the postponed agreement being specified, is simply an agreement in prae-senti to do it. 17 Amjur.2d, Sec. 26, Contracts.

As stated by our Supreme Court in Blackhawk Heat & P. Co., Inc. v. Data Lease Fin. Corp., 302 So.2d 404, a contract should not be held void for uncertainty unless there is no other way out, and “indefiniteness must reach the point where construction becomes futile.”

Turning to Professor Corbin, Cor-bin on Contracts, Vol. 1 (1963) Sec. 95, page 400 (cited in Blackhawk, supra) :

“If the parties have concluded a transaction in which it appears they intend to make a contract, the court should not frustrate their intention if it is possible to reach a fair and just result, even though this requires a choice among conflicting meanings and the filling of some gaps that the parties have left.” (This court’s emphasis)

and as stated at 17 Am.Jur.2d, Contracts, Sec. 22 (cited in Blackhawk, supra):

“[T]he fact that an executed written contract contains within itself difficulties of construction about which the parties disagree does not enable the parties to contend that the minds of the parties never met, since by signing the writing the parties bind themselves to such interpretation as the court may place upon the words and symbols employed by them.”

Where, as in the instant case before this court, a contract is clear and unambiguous and does not involve any absurdities or contradictions, it is the best evidence of the intent of the parties, and its meaning and legal effect are questions of law for determination by the court'alone, Minidoka County v. Krieger Construction Co., 88 Idaho 395, 399 P.2d 962, 17 Am. Jur.2d, Contracts, page 634 note 20 poc. part.

Other states have recognized the enforceability of contracts lacking a provision as to time of performance, Metro-Goldwyn-Mayer, Inc. v. Scheider, 75 Misc.2d 418, 347 N.Y.S.2d 755 (1972). Therein MGM had a contract with defendant which provided that the defendant would star in a pilot film for television, and if the network liked the pilot, the defendant would start a series to run up to 'five years. The network liked the pilot and exercised its contractual option to require MGM to produce a series. Defendant refused to appear in the series, claiming that the contract was too indefinite for enforcement and that it did not provide a date for the commencement of the defendant’s services in the series. The court in finding the said contract enforceable stated that:

“the court will find and enforce a contract even though the parties have expressly left these other elements for future negotiation and agreement, if some objective method of determination is available, independent of either party’s mere wish or desire. Such objective criteria may be found in the agreement itself * * *. If the contract can be rendered certain and complete, by reference to something certain, the court will fill in the gaps.”

Since we find here an enforceable contract upon which appellees are liable to appellant for their proved damages we are disposed to consider appellees’ further argument that the appellant suffered no damage and that the lost profit computations offered in that regard by appellant are too speculative.

We agree with appellees’ general statement of the law, found in Fla.Jur. Vol. 9A, Sec. 85, Damages, that “recovery for lost profits is not generally allowed for injuries to a new business with no history of profits”, however, we disagree with the application of said principle to the facts of this case in view of the appellant’s firm having an established operation of some 13 years providing the same services which it contracted to perform for appellees for a definite sum. The appellant’s profit under its agreement with appellees was not dependent upon the profit generated by the operation of the new motel business, but was dependent upon the contract price agreed to and stated in the contract.

Damages recoverable on breach of contract must be proved with reasonable certainty and cannot be left to speculation or conjecture. Profit may be established by showing the total cost and expenses of labor, services and materials necessary to perform the contract and then deducting that sum from the contract price. The result is the profit. Ballard v. Krause, 248 So.2d pages 234, 235, D.C.A. 4th Dist. (1971).

Applying these principles to the instant case, we find the evidence offered on behalf of the appellant is sufficient and, accordingly, the final judgment entered in favor of the appellees is reversed and the cause remanded with directions to enter judgment for appellant against appellees consistent herewith.

WALDEN, C. J., concurs.

DOWNEY, Judge

(dissenting).

Appellant states in its brief that:

“There is no doubt (or argument with McCoy) that the intent of the parties to this contract is determinative and that that intent is determined 'not only by a construction of the terms of the contract but also by inquiring into all the facts and circumstances surrounding the transaction. Thus, testimony as to what the parties thought at the time of execution is relevant although not conclusive.”

Witnesses on behalf of the respective parties testified to their intention in leaving paragraph 7 of the agreement in question blank. Appellee’s contention was that it was left blank for several reasons, one of which was that appellee wanted to see how appellant performed under its separate contract for consultation services during construction before appellee was committed to employ appellant as manager of the completed project.

The trial judge heard the conflicting evidence in support of the respective contentions of the parties and resolved the issue in favor of appellees. Finding support in the record for that conclusion, it seems to me we must substitute our judgment for that of the trial court in order to reverse the judgment appealed from.

Accordingly, I would affirm the judgment under review.

      . Justice Cardozo in Heyman Cohen & Sons., Inc. v. M. Lurie Woolen Co., Inc., 232 N.Y. 112, 133 N.E. 370, 371.


text:
    Richard Lee SELBY, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-468.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1976.
    Richard W., Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, and Carolyn M. Snur-kowski, Asst. Attys. Gen., for appellee.
   PER CURIAM.

Upon considering the briefs and record, we find no reversible error.

Accordingly, the judgment and sentence are affirmed.

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


text:
    Louise V. WALKER, formerly known as Louise Ann Frericks, Appellant, v. Jerald J. FRERICKS, Appellee.
    No. 75-1343.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Fred D. Leone, Cocoa, for appellant.
    Jerald J. Frericks, in pro per.
   PER CURIAM.

Upon consideration of the briefs and record on appeal we are of the opinion that the (medical) evidence reflected in the record bearing upon the appellant-wife’s physical and mental condition did not form a proper'basis for an award of rehabilitative alimony. Herbert v. Herbert, 304 So.2d 465 (Fla.App. 4th, 1974); Lash v. Lash, 307 So.2d 241 (Fla.App. 2nd, 1975). On the basis of the facts shown permanent rather than rehabilitative alimony should have been granted. Goldstein v. Goldstein, 310 So.2d 361 (Fla.App. 3rd, 1975).

Finding appellant’s other contentions to be without merit the final judgment is affirmed, in part, and reversed, in part, and the cause remanded for the purpose of determining an award of permanent alimony. Cf. Schwartz v. Schwartz, 297 So.2d 117 (Fla.App. 3rd, 1974).

CROSS, MAGER, and DOWNEY, JJ., concur.


author: FERRIS, JOHN G., Associate Judge.

text:
    In re ESTATE of Mary Ida COVENEY; Deceased. Ralph L. FLOWERS, Appellant, v. Frederick J. COVENEY, Appellee.
    No. 75-348.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Ralph L. Flowers, Ft. Pierce, for appellant.
    Robert Jackson, Law Offices of Jackson & Clem, Vero Beach, for appellee.
   FERRIS, JOHN G., Associate Judge.

Appellant, an attorney, was served with subpoena to appear on December 10, 1974, and give testimony at a deposition noticed for the discovery of facts which would bear on a material issue involved in the probate of decedent’s Will. Appellant failed to appear and, after notice and hearing, appellee’s motion to compel appellant to appear was granted by the trial court in an order dated January 3, 1975, and requiring appellant’s appearance on January 16, 1975. Appellant failed to appear on that date and on February 28, 1975, the trial court, again after notice and hearing, found appellant in contempt for failure to comply with the court’s order of January 3rd. Appellant’s Notice of Appeal is directed to the trial court’s order of February 28, 1975, and his assignments of error are directed to the failure to pay him a witness fee as contemplated by Sec. 90.15 F.S.A., which in turn, he claims, renders such order void. We affirm the trial court.

We deem it unnecessary to discuss the compliance or noncompliance with Section 90.15 F.S.A. by the appellee since appellant complains of the order of the trial court of February 28th which adjudged him in contempt for the wilful failure to comply with the court’s order of January 3rd. It is obvious that appellant, if he felt aggrieved by the court’s order of January 3rd, should have attempted to obtain a rehearing or to seek an appellate review of that order. It is equally as obvious that appellant had no right to completely disregard that order, which inevitably and correctly led to the entry of the order of February 28th, the order complained of here.

This case is somewhat similar to the recent case of Sandstrom v. State, Fla.App., 309 So.2d 17 (which also involved an attorney’s disregard of a trial court’s order which he claimed was invalid) wherein Judge Downey of this court stated the applicable law:

Where the court has jurisdiction over the subject matter and the parties and has the authority or power to render the particular order or decree, the fact that such order or decree, violation or disobedience of which is made the basis of the contempt charge, is erroneous or irregular or improvidently rendered, does not justify the defendant in failing to abide by its terms, and his conduct in failing to do so may be punished as for contempt despite the error or irregularity. It is almost unanimously agreed that if the defendant desires to attack the order or decree as erroneous, he must do so, not by disregarding or violating it and then setting the error up as a defense to a charge of contempt, but by attacking the order on direct appeal or by motion to set it aside. He cannot attack it collaterally upon an appeal from the judgment of contempt or upon an application for habeas corpus to be released from imprisonment for contempt. He must obey the order so long as it is in effect and until it is dissolved by the court issuing it, or reversed on appeal by the appellate court.’ ” Anno: Contempt-Disobeying Invalid Decree, 12 A.L.R.2d 1059, 1107.

It is especially important that attorneys, as officers of the Court, obey this salutary rule and by their words and deeds encourage compliance by their clients. Continued conduct such as practiced by the appellant herein can greatly erode the respect we seek to engender in our court system and will foster ridicule and non-compliance of orders of the trial courts. This is not to say that trial courts have not from time to time entered erroneous orders but a well-defined course of action is available to all who complain of any such order. The appellant’s conduct does not fall within such well-defined course of action and was properly delineated as contempt.

The judgment is affirmed.

CROSS and MAGER, JJ., concur.


text:
    DIVISION OF BEVERAGE, of the State of Florida, and the Department of Business Regulation, Appellants, v. DAV-ED, INC., a Florida Corporation, et al., Appellees.
    No. 75-843.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
    Rehearing Denied Jan. 30, 1976.

      J. Riley Davis, Tallahassee, for appellants.
    Leo Greenfield of the Law Offices of Leo Greenfield, North Miami, for appellee Dav-Ed, Inc.
   WALDEN, Chief Judge.

This is an appeal from a summary final judgment, which judgment ordered the appellant to issue a certain liquor license to appellee.

The Division of Beverage correctly portrayed the appellate issue in its point:

“The lower court erred in directing the appellant to issue alcoholic beverage license No. 16-730, an alcoholic beverage quota license, to the appellee, when the issuance of same would be contrary to the quota limitations imposed by § 561.-20(1), Florida Statutes.”

The dispositive statutes are Fla.Stat. 561.20(1) (1973) :

“561.20 Limitation of number of licenses issued.—
“(1) No license under § 565.02(1) (a)(f), inclusive, shall be issued so that the number of such licenses within the limits of the territory of any county shall exceed one such license to each twenty-five hundred (2500) residents, or major fraction thereof, within such county, as shown by the last regular statewide census, either federal or state, of such county. However, such limitation shall not prohibit the issuance of at least three licenses in any county that may approve the sale of intoxicating liquors in such county.

and Fla.Stat. 561.20(3):

“(3) The limitation upon the number of such licenses to be issued as herein provided shall not apply to existing licenses or to the renewal or transfer of such licenses, but upon the revocation of any existing license no renewal thereof or new license therefor shall be issued contrary to the limitation herein prescribed. However, the beverage director may reissue a license under § 565.02 (l)(b) to any qualified applicant within any municipality in which there is only one license, which formerly had an additional license which has heretofore been revoked, and which has sufficient population as shown by the last regular statewide federal census to warrant the additional license. The transfer permitted herein shall not include the change in location of any licensed premises as provided in § 561.33 of the beverage law when such change of location will increase the number of licenses contrary to the limitation upon the number of such licenses as herein provided.”

In the course of events the Division of Beverage had earlier revoked the license then held by one not a party to this case. The appellee then successfully sought an injunctive order directing that this revoked license be issued to appellee.

It is established that at the time in question, according to the last proper census, the alcoholic beverage quota license allotment for Broward County was 248. However, there were 287 outstanding licenses, thereby leaving Broward County over-quo-taed by 39 licenses. Thus, under these circumstances there were no beverage quota licenses available for issuance in Broward County.

It is our opinion and holding that the trial court erred in ordering the issuance of the license because such issuance was vi-olative of the provisions and restrictions of Fla.Stat. 561.20(1) and (3), supra. We particularly point to these words in § 561.-20(3):

“. . . upon the revocation of any existing license no renewal thereof or new license therefor shall be issued contrary to the limitation herein prescribed.”

The appealed judgment was silent as to the rationale used in reaching the decision. We have searched appellee’s brief with care to determine if there was any basis for the decision or reason why the clear and unambiguous words of the statutes should not be applied. This was unavailing. The appealed judgment is

Reversed.

CROSS and MAGER, JJ., concur.


text:
    Arthaniel IRVIN, Appellant, v. STATE of Florida, Appellee.
    No. 75-232.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel and Paul Herman, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   WALDEN, Chief Judge.

This defendant appeals his conviction for attempted escape, claiming that during his trial he was improperly questioned as follows:

“Q. . . . [L]et me ask you this question: How many times have you been convicted of a crime?
“A. Well, three times.
“Q. Three times?
“A. Uhm hum.
“Q. You have been convicted of a crime three times ?
“A. (Witness nods head.)
“Q. Do you mind if I refresh your memory a bit, sir? You say you have been convicted three times of a crime?
“A. Yes, sir.
“Q. Do you recall being convicted of an offense of larceny on March 10, 1955 and sentenced to the Industrial School?
“A. That’s when Juvenile, sir.
“Q. Let me ask you this question: Do you recall conviction in 1958 for pointing a deadly weapon ?
“A. In ’58?
“Q. Yes.
“Q. Mr. Irvin, do you recall the July 31, 1958, in Harrisburg, Pennsylvania conviction of pointing a deadly weapon, and you were to serve the remainder of a five year indefinite sentence?
“A. No, sir.
“Q. How about a 1962, June 24, to be exact, conviction in Pittsburgh, Pennsylvania, for the offense of burglary, sentence from one and a half to three years ?
'A. Sir, if it please the court, I would like the Court to write Pennsylvania and write the State Correction Institution in Bradford. At that time, totally impossible to commit a crime, I was in jail in 1959 and got out 1964. I wish the Court to write Pennsylvania and write the State Correction Institution in Bradford and clarify this. They will tell you in 1962 I was still in the Penitentiary, I went there in 1959 and got out in 1964.
‘Q. That’s three we found three convictions ?
‘A. I didn’t have convictions, I didn’t have no conviction of pointing a deadly weapon, and I did not go in ’58.
‘Q. How about in August 21, 1975 in Dolphin County Pennsylvania, where you were charged and con-victéd of larceny by employee and sentenced to eleven and a half to twenty-three months.
‘A. I was sentenced eleven and a half to twenty-two months, County time, a misdemeanor.
‘Q. Do you recall October 13, 1967 in Lancaster, Pennsylvania, attempted burglary and possession of burglary tools, and you were found guilty and given two to four years ?
‘A. Yes, sir.
‘Q. . Also, do you recall in June of 1972, June 23, to be exact, you were convicted for the offense of uttering and passing a forged check in Seminole County, Florida, Circuit Court, Seminole County, Florida, and sentenced to twelve months in the County Jail ?
“A. Yes, sir.
“Q. And do you also recall on the twelfth day of November, this year, you were adjudicated guilty and sentenced from six months to three years for the offense of buying, receiving and concealing stolen property in excess of one hundred dollars?
“A. Yes, sir.
“Q. All right. Do you recall being arrested on the seventh day of June, this year?
“A. This year?
“Q. Yes. Excuse me, 1974, on the charge of buying receiving and concealing stolen property; do you remember being arrested on that?
“A. Yes, sir.”

Defendant preserved an objection to this line of questioning. We hold the procedure adopted by the prosecution was in error.

It is plain that, if a witness denies the existence of past convictions, the prosecution may then proceed to impeach by producing a record of past convictions. Fla.Stat. § 90.08 (1973); McArthur v. Cook, 99 So.2d 565 (Fla.1957):

“[T]he proper procedural approach is simply to ask the witness the straightforward question as to whether he had ever been convicted of a crime. The inquiry must end at this point unless the witness denies that he has been convicted. In the event of such denial the adverse party may then in the presentation of his side of the case produce and file in evidence the record of any such conviction. If the witness admits prior conviction of a crime, the inquiry by his adversary may not be pursued to the point of naming the crime for which he was convicted.” Id. at 567.

Mead v. State, 86 So.2d 773 (Fla.1956):

“It is the rule that a witness may be asked if he has been convicted of a crime but the inquiry must stop there unless he denies the conviction, in which case the opposing party may produce the record of conviction.” Id. at 774.

There is no approval, however, of the type of questioning pursued by the prosecutor here. The witness here answered untruthfully about the number of past convictions; this would only open the door for the production of the defendant’s past record, but in this case the record was never produced and entered into evidence. This is not tolerable, all precedent indicates that for a criminal defendant to be impeached by past convictions, the record of past convictions must be made a part of the record. The reason for this is clear; it would be highly improper if a prosecutor, upon receiving a negative answer to questions about past convictions, could read from an ostensibly official paper and ask defendant if he had been convicted of various and sundry crimes (which defendant might deny), while never entering an actual certified record of the defendant’s former conviction into evidence.

We find the omission to have been harmful error. The questioning' of defendant as to numerous specific offenses cast him in a light which necessarily affected jury evaluation of his claims on the escape charge. There being no proof that defendant’s denials of certain of the past convictions were true or false, defendant was improperly and harmfully prejudiced, and must be granted a new trial.

Reversed and remanded.

OWEN and DOWNEY, JJ., concur.

      . We recede from Jones v. State, 305 So.2d 827 (4th DCA Fla.1975) insofar as it indicates that the specific crimes of a defendant may not be named when he denies any past conviction. The fact that a past record of convictions may, upon defendant’s denial, be put into evidence, of itself requires that the past crimes be identified. See Mead v. State, 86 So.2d 773 (Fla.1956); Lockwood v. State, 107 So.2d 770 (2d DCA Fla.1958).

      . We do not believe that a “rap sheet,” as it is commonly known, would suffice. Such a document is liable to inaccuracies and is not a certified document.


author: PER CURIAM. NATHAN, Judge

text:
    Willie REAVES a/k/a Levern McMillan, Appellant, v. The STATE of Florida, Appellee.
    No. 75-572.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Phillip A. Hubbart, Public Defender, and Bennett H. Brummer and Karen Gottlieb, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant seeks reversal of his conviction and five year sentence for grand larceny on the grounds he was denied due process of law as a result of the prosecutor’s comment in closing argument on defendant’s indigency and legal representation by the public defender.

The prosecution’s version of the facts, which the jury chose to believe, is as follows :

Defendant Reaves and a companion entered a Goodyear store. For the purpose of distraction, defendant discussed with the sales manager the possibility of purchasing a refrigerator while his companion slipped a television into an empty box he was carrying. In spite of the distraction, the manager noticed the companion taking the television and called the police. The pair then informed the manager that they did not have enough money to purchase the refrigerator and departed. Several minutes later the defendant, who was carrying the stolen television, was apprehended by the authorities.

Defendant testified to a somewhat different version. He testified that he entered the store to price some kitchen appliances in contemplation of marriage and a new apartment, and that he slightly knew the man who was his alleged companion. He then left the store alone and shortly thereafter the man who perpetrated the theft joined him and asked the defendant to hold the box which he was carrying. He took the box, the man disappeared and the police approached and arrested him.

In his closing argument to the jury, the prosecutor made the following remarks which defendant contends were highly prejudicial thereby depriving him of a fair trial:

“Once upon a time I went into a store to talk about refrigerators and stoves, refrigerators and stoves, major appliances. Ladies and gentlemen, yet the Defendant has a Public Defender. Now that in and of itself cannot be used against him but it must be used to be weighed against the facts that this man is buying major appliances, seriously (R. 285, 286).
5[C # * * ‡ ‡
“If the man cannot afford an attorney how can he say that, ‘I was seriously talking about two major appliances and making a major move into an apartment.’ Ladies and gentlemen, you cannot believe the defendant’s story (R. 286).”

The rule is that the prosecution is permitted to comment upon the essential unbelievability of a defendant’s testimony. Fitzgerald v. State, Fla.App.1969, 227 So.2d 45; Mabery v. State, Fla.App.1974, 303 So.2d 369. We find the prosecutor’s remarks concerning the defendant’s indigen-cy and representation by a public defender fair argument going to the credibility of defendant’s testimony as to what transpired, and it was not fundamental error for the court to have permitted it. Cf. Herzig v. State, Fla.App.1968, 213 So.2d 900.

Further, we note that the prosecutor prefaced his remarks with a cautionary explanation that the mere fact, standing alone, that the defendant was represented by a public defender should not be used against him. Rather, the fact of defendant’s admitted indigency was to be weighed against his testimony that he went to the store to price and possibly buy major kitchen appliances.

Affirmed.

NATHAN, Judge

(dissenting).

I respectfully dissent. I view the testimony to reflect that the prosecutor commented on the defendant’s indigency, which, in my opinion, was highly prejudicial and deprived the defendant of a fair trial. It is easily inferred from the remarks in question that the defendant’s lack of money was a motive for the crime of grand larceny with which he was charged. The inference that an indigent person is likely to commit a crime involving financial gain is improper and prejudicial. State v. Mathis, 47 N.J. 455, 221 A.2d 529, 536-538 (1966). Also see People v. Moore, 26 A.D.2d 902, 274 N.Y.S.2d 518 and compare Goff v. Commonwealth, 241 Ky. 428, 44 S.W.2d 306, 308. The kind of trial a man gets should not depend on whether he is poor or rich. See Griffin v. Illinois, 351 U.S. 12 at 19, 76 S.Ct. 585, 100 L.Ed. 891.

Therefore, I would reverse and remand for a new trial.


text:
    Jerry Wayne HYDE and the Manchester Insurance and Indemnity Company, Appellants-Petitioners, v. Joyce S. MAINE, Appellee-Respondent.
    Nos. 75-854, 75-858.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1975.
    Richard E. Wolverton, of Bradham, Lyle, Skipper & Cramer, St. Petersburg, for appellants-petitioners.
    Ronald H. Schnell, of Carr & Schnell, St. Petersburg, for appellee-respondent.
   PER CURIAM.

In this automobile negligence action defendants-appellants seek to appeal' a pretrial order relating to limits of two policies of liability coverage issued by appellant Manchester Insurance and Indemnity Company to • defendant-appellant Jerry Wayne Hyde, in which order the trial court “stacked” the limits of each policy. Additionally, in the event the interlocutory appeal has been improvidently taken, appellants have petitioned for common law cer-tiorari to review the same order. Both cases have been consolidated.

This being an action at law, we construe the order appealed from as being a non-appealable interlocutory order. Moreover, concerning the viability of common law certiorari, we think that whether in error or not the trial court did not depart from the essential requirements of law in entering the order nor, if entered erroneously, did appellants suffer irrevocable injury therefrom.

In view whereof, the interlocutory appeal herein should be, and it is hereby, dismissed. Additionally, the petition and prayer for common law certiorari is denied.

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

      . Rule 4.2, F.A.R.


author: SMITH, Judge.

text:
    Raymond MOORE and Larry Moore, Appellants, v. STATE of Florida, Appellee.
    No. Y-107.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen. for appel-lee.
   SMITH, Judge.

Raymond and Larry Moore appeal from judgments convicting them in the Circuit Court of Santa Rosa County of possession of burglarious tools on September 16 and 17, 1974, and breaking and entering a coin operated vending machine at the Exxon station at Navarre on September 17.

Appellants assert that the evidence of other similar crimes committed by them and by the chief prosecution witness tended only to show bad character or propensity to commit crime and was therefore inadmissible. The evidence in question, admitted with appropriate instructions to the jury concerning its purpose, was that the three men, on the might before they pried open the vending machine at Navarre Exxon, did the same thing at a Pensacola Gulf station and were later seen, siphoning gas from a parked vehicle, with the former contents of the vending machine visible in the backseat of their car. Complaint is made also of evidence admitted to show that on the night they broke the vending machine at Navarre Exxon, they had attempted to siphon gasoline and were about to break another vending machine at yet another filling station in Santa Rosa County when they were arrested.

The evidence in question was properly admitted. It tended to show a common scheme or design whereby appellants and an accomplice acted together in a similar way to commit offenses similar to those for which appellants now are convicted. Evidence of appellants’ use of a tire tool and crowbar to break into a vending machine and to open a gas tank cap was relevant, too, to the charge that appellants possessed burglarious tools in violation of § 810.06, F.S.1973. Furthermore, since appellants and their accomplice were seen together and in possession of stolen merchandise on the night of September 16, the witness who saw them corroborated the accomplice’s testimony concerning the criminal activities of both nights and so tended to meet the alibi defense offered by appellants. See Williams v. State, 110 So.2d 654 (Fla.1959), cert. den. 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); Griffin v. State, 124 So.2d 38 (Fla.App. 1st, 1960), explained in Franklin v. State, 229 So.2d 892, 894-95 (Fla.App. 3rd, 1970). Contrast Dinkens v. State, 291 So.2d 122, 125 (Fla.App. 2nd, 1974).

Appellant Larry Moore asserts that the trial court erred in sentencing him for possession of burglarious tools to a term of imprisonment for five years, of which the final three years were suspended, and a term of probation for five years thereafter. The State agrees that the sentence is excessive to the extent of the final two years of probation. Secs. 810.06, 775.082, F.S. 1973, 948.04, F.S.1973 (1974 Supp.), as amended by § 10, ch. 74 — 112, Fla.Laws. In order to conform it to the requirements of law, the sentence of Larry Moore will be vacated to the extent of the final two years of the five-year probationary term.

Appellant Raymond Moore asserts that the trial court erroneously sentenced him as a recidivist pursuant to § 775.084, F.S.1973, without complying with the procedures specified in § 775.11, which was in effect at the time of these sentences. See the repealing ch. 74-383, as amended by ch. 75-24, Fla.Laws, effective October 1, 1975. With deference to the contrary decision of the District Court of Appeal, Second District, in Wright v. State, 291 So.2d 118 (Fla.App. 2nd, 1974), we conceive that the former strictures of § 775.11, requiring the full panoply of information, arraignment and trial on the issue of identity, do not apply when the fact of the recidivist’s prior conviction of a felony appears to the sentencing judge before or at the time of the adjudication and sentence for the subsequent offense. Sec. 775.11(1) was designed to afford an opportunity for the State to seek the extended term of commitment provided for by § 775.084 when, through oversight, the fact of a previous conviction did not appear or become known to the court or prosecutor until “after sentence or conviction” for the subsequent offense. The repeal of § 775.-11, F.S.1973, effective October 1, 1975, evidences legislative intent that the provisions of § 775.084, which continues in effect, be utilized in accordance with due process of law independent of former § 775.11. In our recent decision in Andrews v. State, 316 So.2d 296 (Fla.App. 1st, 1975), we remanded a case for resentencing in somewhat similar circumstances. There, however, the State confessed error in the sentence under review, and so we did not have the opportunity to consider the question here decided.

The judgment and sentence of Raymond Moore is affirmed. The judgment and sentence of Larry Moore is affirmed as modified.

BOYER, C. J., and MILLS, J., concur.


text:
    Lloyd Harold DUNLAP, Appellant, v. STATE of Florida, Appellee.
    No. Y-425.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   SMITH, Judge.

At issue on this appeal is whether the trial judge erred in excluding proffered defense testimony, by the youth arrested with appellant at the scene of the breaking and entering, that appellant neither broke nor entered the building with the witness. Holding that defense counsel had failed to respond properly to the State’s demand under Rule 3.200, R.Cr.P., for pretrial notice of the defendant’s intent to offer evidence of an alibi, the court excluded the critical testimony. In this the trial judge erred.

The State’s demand for notice of an alibi defense, answerable under the rule “not less than ten days before trial or such other time as the court may direct,” was not filed until eight days before the trial. The State made no application for an order requiring a written response before trial and none was made. The testimony in question was that of James Guinn, who was interrogated on a proffer as follows by defense counsel until interrupted:

“Q How old are you, James?
A Sixteen.
Q Now, were you involved in this breaking and entering out at 2075 Liberty Street at approximately 11:30 p.m. on February 25th, 1975?
A Yes, sir, I was.
Q Now, has the juvenile court taken custody of this case ?
A Yes, sir. I was arrested and released from the juvenile shelter until the Court—
Q Now, are you still facing the charge over in the juvenile court?
A Yes, sir.
Q Now, did you — well, let me ask you this: Was Lloyd Harold Dunlap involved with you on this breaking and entering?
A No, sir.”

The trial court properly interrupted the proffer and appointed counsel for the youth when he stated he had no attorney. His appointed attorney privately advised the witness not to testify because anything he might say could be used against him. The prosecutor interjected, within the youth’s hearing: “Your honor, if I might add, it will be used against him.” The youth asserted his Fifth Amendment privilege and defense counsel moved for a continuance or a mistrial:

“At this time I would make a motion for a continuance or a mistrial due to the fact that the Defense counsel has been led by this witness to believe that he would take the stand and testify to the effect that my client was not involved in this break in.
“I have prepared the defense based upon what the expected testimony from this witness would be and am surprised that matters have taken this turn and almost our sole defense has been based upon the testimony of this witness. I would like the court at this time to grant a mistrial or continuance until I can get prepared to properly defend my client.”

Defense counsel assured the court that he had previously cautioned the youth concerning his Fifth Amendment privilege and of the possible consequences of his testifying at appellant’s trial:

“. . . I have at all times advised him that he could take the stand and testify and it could be used against him.
“He told me that he had already given the police a complete and full statement as to what happened and he knew that —and I told him that it could be used against him and he still said he was willing to testify on behalf of the Defendant.
“THE COURT: I thought I had already ruled that this witness cannot testify as to any alibi and that was the reason for the proffer.
“Having ruled that he can’t testify as to any alibi for the Defendant, I don’t know what else he could testify to. If you want to proffer him for any other reason I will listen if he doesn’t claim the Fifth Amendment, but I have already ruled, prior to you offering on proffer—
“MR. TANNER (defense counsel): Well it’s my intention to show that he was — the boy was going to say he [appellant] was there but he [appellant] was not in the building with him. It is my understanding that an alibi is where someone is someplace else . . . .”

The proffered testimony that appellant was at the scene but not implicated in the offense was not alibi testimony for which advance notice need have been given upon a timely demand by the State. Appellant’s own testimony, like that elicited from the youth on proffer, was that appellant was at the scene of the offense, where he was arrested, but was not involved in the offense. See Judge McNulty’s clear statement of the distinction between alibi testimony and testimony of the sort here relied on, Mitchell v. Walker, 294 So.2d 124, 127 (Fla.App.2nd, 1974), concluding:

“In a word, the statement was no more than a general denial of the relator’s criminality and it went no further than his Not Guilty plea itself.”

We cannot say whether the trial court, in the exercise of well-informed discretion, would have granted the requested mistrial and continuance if the court had not first mooted the point by excluding the testimony as an alibi. There is no reason in this record for us or for the trial judge to dispute defense counsel’s representations to the trial court concerning his warnings to the youth before calling him as a witness and the youth’s persistence in his intention to testify. Therefore, it appears that the witness’ abrupt change of heart, under the ministrations of the court, appointed counsel and the prosecutor, came as a genuine surprise to the defense. Because the trial court did not explore how a short continuance might remedy the surprise we cannot know whether the youth could soon have been compelled to testify without jeopardy or whether a trial delay for repreparation of the defense might otherwise have been justified. We cannot and will not assume that the conscientious trial judge would have arbitrarily denied a meritorious motion. Rule 3.190(g), R.Cr. P.; Shepard v. State, 108 So.2d 494 (Fla.App. 1st, 1959); Berriel v. State, 233 So.2d 163 (Fla.App. 4th, 1970); 22A C.J.S. Criminal Law § 498 (1961, Supp.1975); 17 Am.Jur.2d Continuance § 42 (1964, Supp.1975). Because it is now impossible for the trial court or for us to consider the apparently meritorious defense motion without concern for the question of alibi, we have no recourse but to reverse the conviction and remand the case for a new trial.

Reversed.

BOYER, C. J., and MILLS, J., concur.