author: OVERTON, Justice. ALDERMAN, Justice,

text:
    Paul A. SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 59728.
    Supreme Court of Florida.
    July 30, 1981.
    Rehearing Denied Oct. 9, 1981.
    Peter M. de Manió, Sarasota, for petitioner.
    Jim Smith, Atty. Gen., and G. P. Wald-bart and David T. Weisbrod, Asst. Attys. Gen., Tampa, for respondent.
   OVERTON, Justice.

This is a petition to review the decision of the Second District Court of Appeal, reported at 387 So.2d 391 (Fla. 2d DCA 1980), holding that a law enforcement officer has no duty to advise a silent arrestee of alternatives to his vehicle’s impoundment. This holding is in accord with previous Second District decisions in State v. Miller, 369 So.2d 619 (Fla. 2d DCA 1979), and State v. Dearden, 347 So.2d 462 (Fla. 2d DCA 1977), and in conflict with the decisions of the Fourth District in Session v. State, 353 So.2d 854 (Fla. 4th DCA 1977); Jones v. State, 345 So.2d 809 (Fla. 4th DCA 1977); State v. Jenkins, 319 So.2d 91 (Fla. 4th DCA 1975).

We recently resolved this conflict in Miller v. State, 403 So.2d 1307 (Fla.1981), which we held:

(1) the purpose of an inventory search is a caretaking function exclusively for (a) protection of the owner’s property, (b) protection of the police from claims and disputes over lost or stolen property which has been impounded, and (c) protection of the police from danger; (2) an inventory search is not conducted in order to discover evidence of a crime, and any suggestion that standard police procedure for an inventory search is actually a pretext for an investigative search will require the search to meet traditional probable cause standards or be invalidated; (3) there must be a threshold inquiry by the trial court to determine that the im-poundment was for the above purposes and was reasonable and necessary under the circumstances; and (4) when the owner or possessor of the vehicle is present, the arresting officers must advise him or her that the motor vehicle will be impounded unless the owner or possessor can provide a reasonable alternative to impoundment; however, consultation with the owner or possessor is not required in circumstances where the vehicle is unattended, its owner is not reasonably available, or its owner or possessor is mentally incapacitated.

Id., at -

The Miller holding requires the officers to advise a present, silent arrestee that his car will be impounded unless he can provide a reasonable alternative to im-poundment. Our holding does not mandate that an arrestee must be advised of all available options to impoundment; such a per se rule would be unworkable because of changing conditions and circumstances. However, the extent of the consultation with an arrestee is a factor for the trial judge to consider in determining whether the impoundment was reasonable and necessary.

In the instant case Sanders was arrested for driving under the influence of alcohol and was upon his own admission very intoxicated when arrested. Severe intoxication and other mental incapacity were specifically mentioned in Miller as examples of situations in which, if impoundment of a vehicle was necessary, consultation with the arres-tee might be either impossible or inappropriate. The trial judge in considering a motion to suppress took Sanders’ condition into consideration in determining the necessity for impoundment. The written order of the trial judge expressed a finding that, although Sanders failed the sobriety test, he “was cooperative,” responded to all requests of the officer promptly,” and “was alert and coherent.” The trial court further found that Sanders stopped his car next to the curb immediately upon the officer turning on his red lights and that this location was found to be one hundred feet from the motel where Sanders was staying. Concerning the location of the vehicle, the trial court made these express findings: “The street where he was stopped had four traffic lanes and was extremely well-lighted — to half daylight or better. Traffic at 4:05 a. m. was extremely light[,] thus no traffic hazard at this time of day. The essence of a lawful impoundment is necessity .... The Court finds no such necessity in this case. The defendant’s vehicle did not create an immediate traffic hazard or nuisance.” The trial court further expressed the legal conclusion in his order that “where the automobile does not create a traffic hazard or nuisance the individual in custody should be advised of and given the standard alternative choices under the police department’s procedural order.” The trial court concluded by finding that the threshold requirement of necessity to make an inventory search was not present.

In reversing the suppression order, the district court of appeal disagreed with the factual finding of the trial court relating to the vehicle’s location and determined that the vehicle constituted “a hazardous impedi-ment to traffic.”

Given the factual findings of the trial judge, we must conclude that the trial judge could properly find that the impoundment of Sanders’ vehicle was not reasonable under the Miller test, given the circumstances in this cause. In so holding, we reiterate we are not adopting a per se rule that mandates that an arrestee be advised of all available options to impoundment. Changing conditions and circumstances must be taken into account and the extent of the consultation with an arrestee is only a factor which the trial judge should consider in determining whether the impoundment was reasonable and necessary.

Although we approve the trial court’s conclusion that there was no necessity for this impoundment, we reject its legal holding which mandates advising an arrestee of all “standard alternative choices” to the impoundment. Such is not required under Miller.

We disapprove the holding of the district court of appeal and direct that the order of suppression be reinstated.

It is so ordered.

ADKINS, C. J., and ENGLAND and MCDONALD, JJ., concur.

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

For the reasons expressed in my dissent to Miller v. State, 403 So.2d 1307 (Fla.1981), I believe that the present case was correctly decided by the district court. There is no constitutional requirement that an arresting officer advise the person he arrests that any motor vehicle in the possession of the person arrested will be impounded unless that person can provide a reasonable alternative to impoundment. The motor vehicle in this case was properly impounded, and the subsequent inventory search of this vehicle was lawful. The district court correctly reversed the trial court’s suppression order.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    George Victor FRANKLIN, a/k/a Charles Gordon, Appellant, v. STATE of Florida, Appellee.
    No. 52971.
    Supreme Court of Florida.
    Aug. 6, 1981.
    Rehearing Denied Oct. 13, 1981.

      Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, Jerry L. Schwarz and Ellen S. Morris, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Max Rud-mann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Franklin appeals his conviction of first-degree murder and sentence of death. We have jurisdiction and reverse.

An indictment charged Franklin and Roy Render with one count of first-degree murder each for the shooting death of a liquor store owner. The jury acquitted Render, but found Franklin guilty and recommended the death penalty. The trial court concurred, finding four aggravating factors and no mitigating circumstances, and imposed the death sentence.

At trial the state proceeded on alternative theories of premeditation and felony murder. At the charge conference, however, neither of the defense attorneys nor the prosecutor requested an instruction defining the underlying felony, robbery. The trial court did not propose such a charge, and, consequently, the jury received no instruction on the underlying felony.

Franklin contends that failing to instruct on the underlying felony in a felony-murder case requires reversal. We agree.

This Court recently found the complete failure to give any instruction on an underlying felony to be fundamental error. State v. Jones, 377 So.2d 1163 (Fla.1979). Even though Franklin raises this point for the first time in this Court while the prosecutor in Jones brought the omission to the trial court’s attention, Jones controls the instant case.

We reject the state’s argument that Jones is inapplicable to the instant case. Relying on Frazier v. State, 107 So.2d 16 (Fla.1958), the state contends that the prosecution’s presentation of evidence sufficient to show premeditation renders harmless any error in the felony-murder instruction. When the state seeks a conviction of first-degree murder on the dual theories of premeditation and felony murder and there is error because the trial judge fails to instruct on the underlying felony, the conviction can stand only if the error is harmless. We adopt the harmless error test enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 706 (1967). The reviewing court must be satisfied beyond a reasonable doubt that the failure to so instruct was not prejudicial and did not contribute to the defendant’s conviction.

In this case the killing resulted from an exchange of bullets when Franklin allegedly sought to rob the victim’s liquor store. The primary thrust of the state’s case was felony murder. In closing argument felony murder was the dominant theme, and, indeed, the facts demonstrate felony murder more clearly than premeditation. It is at least as likely as not that the jury based its verdict on felony murder. The failure to instruct on the underlying felony cannot be considered harmless error in this case. Compare Jones with Knight v. State, 394 So.2d 997 (Fla.1981).

While it is not necessary to instruct on the elements of an underlying felony with the particularity required if that felony were the primary case charged, the elements must be sufficiently defined to assure the defendant a fair trial. 377 So.2d at 1164. See Vasil v. State, 374 So.2d 465 (Fla. 1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2945, 64 L.Ed.2d 826 (1980); Robles v. State, 188 So.2d 789 (Fla.1966). Counsel’s failure does not relieve a trial court of the duty to give all charges necessary to a fair trial of the issues. Id. at 793.

Accordingly, Franklin’s conviction and sentence are reversed, and this cause is remanded for a new trial.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON, ENGLAND and McDONALD, JJ., concur.

ADKINS and ALDERMAN, JJ., dissent.

      . Art. V, § 3(b)(1), Fla. Const.

      . Due to our holding, we find it unnecessary to address the other points on appeal.


author: ALDERMAN, Justice.

text:
    Donald E. CANTRELL, Appellant, v. STATE of Florida, Appellee.
    Shirley Lee LOVELL, Appellant, v. STATE of Florida, Appellee. Raymond C. LOVELL, Bailey Theatre, Inc., Black Forge, Inc., Inner Corporation, and Forge Investments, Inc., Appellants, v. STATE of Florida, Appellee.
    Nos. 58327, 58666 and 58790.
    Supreme Court of Florida.
    Aug. 6, 1981.
    Rehearing Denied Oct. 13, 1981.
    John E. Lund of Cicero & Lund, Tampa, for appellants.
    Jim Smith, Atty. Gen., and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appel-lee.
   ALDERMAN, Justice.

The State of Florida charged Donald E. Cantrell, Shirley Lee Lovell, and Raymond C. Lovell with violation of section 943.462(3) of the Florida RICO (Racketeer Influenced and Corrupt Organizations) Act, Florida Statutes (1977). This section makes it “unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.” The racketeering activity alleged was several violations of section 796.07, the prostitution statute, and section 847.07, the obscene literature statute. The appellants pleaded not guilty and moved to dismiss the information and to suppress certain evidence seized at the Lovell residence pursuant to a search warrant. These motions were denied. The appellants then changed their pleas to nolo contendere, reserving the right to appeal. We have jurisdiction because the trial court passed on the validity of section 943.462(3) in denying the motion to dismiss the information. Art. V, § 3(bXl), Fla.Const. (1972).

The appellants contend that the trial court erred in failing to dismiss the information on the grounds that it was based on an unconstitutionally vague statute and that the statute was unconstitutionally applied to the conduct the appellants are alleged to have committed. We have previously found section 943.462(3) constitutional. Carlson v. State, 405 So.2d 173 (Fla.1981); State v. Whiddon, 384 So.2d 1269 (Fla.1980); Moorehead v. State, 383 So.2d 629 (Fla.1980). Appellants have presented nothing to convince us we should reach a different conclusion in this case.

The appellants also contend that the trial court erred in denying appellants’ motion to dismiss on the grounds that the information was vague, indistinct, and indefinite. This contention is without merit. The language of the information tracked the language of the statute and sufficiently alleged the existence of a criminal “enterprise.” The information was sufficient to charge a violation of section 943.462(3). State v. Whiddon, 384 So.2d 1269 (Fla.1980).

The appellants’ contention that the trial court erred in accepting their nolo conten-dere pleas in the absence of the showing of a sufficient factual basis is not supported by the record.

Finally, because it does not affirmatively appear from the record that it would be dispositive of these cases, we need not consider the merits of appellants’ contention that the trial court erred in denying their motion to suppress on the ground that the warrant authorizing search of appellants Lovell’s residence was unconstitutionally deficient. Brown v. State, 376 So.2d 382 (Fla.1979). Although the trial judge knew that the appellants wanted to reserve the right to appeal this issue, he specifically advised appellants’ counsel that he “had not made any finding as to whether or not those previous motions were dispositive of the issues. That’s between you and the appellate court. I made no finding in that regard.” The record does contain an excerpt from the proceedings before the trial court on September 6, 1979, when the nolo contendere pleas were entered. At that time, the prosecutor gave a long and detailed factual statement of what the State intended to prove and represented to the court that these facts were not obtained as “a result of the search warrant which was executed on May 22nd.”

Accordingly, the convictions are affirmed.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND and McDONALD, JJ., concur.


text:
    THE FLORIDA BAR. In re AMENDMENT TO INTEGRATION RULE, ARTICLE IX, SECTION 13 (Compensation and Expenses).
    No. 60124.
    Supreme Court of Florida.
    Sept. 17, 1981.
    John F. Harkness, Jr., Executive Director and James P. Hollaway, Deputy Staff Counsel, Tallahassee, Samuel S. Smith, President, Miami Beach, James C. Rinaman, Jr., President-elect, Jacksonville, and Bill Wagner, Chairman, Integration Rule and Bylaws Committee, Tampa, for The Florida Bar, petitioner.
   PER CURIAM.

The petition of the Florida Bar to amend Florida Bar Integration Rule, article IX, section 13, entitled “Compensation and Expenses”, is granted, and the following rule is hereby adopted:

ARTICLE IX
FISCAL CONTROL
13. Compensation and Expenses. No member of the Board of Governorsr-and no member or officer of The Florida Barv other than the Executive Director and the employees- of The Florida Bar, and except as may be-authorized pursuant to Article XI hereof; shall receive compensation, but any sueh-person may, with the approval of the Board of Governors, be reimbursed for reasonable expenses incurred in the performance of services for The Florida Bar. (Words in struck through type are deletions from the existing rule.)

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


text:
    In re FLORIDA RULES OF CRIMINAL PROCEDURE.
    No. 58988-A.
    Supreme Court of Florida.
    Sept. 24, 1981.
    Stan R. Morris, Chairman, Gainesville, for The Criminal Procedure Rules Committee, petitioner.
   PER CURIAM.

Pursuant to our June 5 order, In re Standard Jury Instructions in Criminal Cases, No. 58,799 (Fla.1981), the newly adopted schedule of lesser included offenses will become effective on October 1, 1981. At the Court’s request, the Supreme Court Committee on Standard Jury Instructions in Criminal Cases and the Florida Bar Criminal Rules Committee have proposed new Rules of Criminal Procedure 3.490 and 3.510 which are consistent with the new schedule. We approve and adopt the proposed rules as follows:

Rule 3.490. Determination of Degree of Offense
If the indictment or information charges an offense divided into degrees, the jury may find the defendant guilty of the offense charged or any lesser degree supported by the evidence. The judge shall not instruct on any degree as to which there is no evidence.
Rule 3.510. Determination of Attempts and Lesser Included Offenses Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of:
(a) an attempt to commit such offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support such attempt and the only evidence proves a completed offense.
(b) any offense which as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.

They shall become effective on October 1, 1981.

It is so ordered.

ADKINS, OVERTON, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, C. J., and BOYD, J., dissent.


author: McCORD, Chief Judge.

text:
    Raymond S. O’NEAL, Appellant, v. PINE ISLAND FISH CAMP, INC., a Florida Corporation, James D. Millican and Mary L. Millican, Appellees.
    No. LL-113.
    District Court of Appeal of Florida, First District.
    June 13, 1979.
    Chobee Ebbets, Daytona Beach and Anthony I. Provitola, Deland, for appellant.
    Daniel S. Wallace and James W. Smith of Smith, Schoder & Wallace, Daytona Beach, for appellees.
   McCORD, Chief Judge.

This appeal is from a final judgment in a negligence action awarding appellant $4,000 damages against appellees. We affirm.

On August 24, 1973, appellant was injured while installing a new blade on a bush hog mower for James D. Millican of appel-lee, Pine Island Fish Camp, Inc. While one wheel of the mower was propped up and appellant was under the mower installing the blade, the wheel fell off its block, causing the mower to fall upon appellant striking the right side of his face and continuing across the left side of his upper chest pinning him underneath. Dr. Wilbert R. Suggs, who treated appellant, testified that he complained of injury to the left upper chest and left shoulder area which included the side of his neck. He observed bruises to the left chest extending from appellant’s collarbone down to the nipple of his breast and found that appellant was tender both in this area and the area at the base of his neck. In addition, appellant had a bruise on his right jaw. He was seen by Dr. Suggs on four occasions through September 24, 1973, at which time appellant was still complaining of pain in his neck and shoulder area and stated that the third and fourth fingers on his left hand were feeling numb.

Dr. Earl Risbeck later treated appellant for unrelated physical complaints. On December 9, 1974, (over one year and three months after the accident) appellant complained to Dr. Risbeck that his hands were falling asleep and that his right shoulder and neck felt odd. Dr. Risbeck found weakness in appellant’s right hand and felt that there was probably a cervical disc problem but did not attempt to determine the etiology. He referred appellant to a neurological surgeon, Dr. James V. Freeman. On April 2, 1975, Dr. Freeman performed a cervical fusion operation on appellant.

Appellant contends that the trial court erred in excluding the deposition of Dr. Freeman and in refusing to instruct the jury on the elements of damages for permanent injury.

In the interim period between the bush hog accident and appellant’s treatment by Dr. Freeman, he was involved in two accidents. The first was in September, 1973, about a month after the bush hog accident, when he backed his car from a convenience store parking lot across a street and into a stationary car. The second occurred in August of 1974 when appellant was drilling a well, and the pipe got away from him. He was “trying to keep that whipping pipe from getting me when it went down the well casing.” He grabbed hold of it, and he testified that “it caught pretty fast.” Dr. Risbeck, who treated him on that occasion, testified that appellant received deep friction burns of both hands through the full thickness of the skin; that “it pretty well took off some of the hide in the palms of his hands” — “there was subcutaneous tissue visible in the center.”

In Dr. Freeman’s deposition, which the trial court ruled inadmissible, he testified that when he first saw appellant on December 11, 1974, he tentatively evaluated his condition as degenerative disc disease. This was subsequently confirmed by a myelo-gram as degenerative cervical disc disease with osteophyte or bony ridge formation around the degenerative discs formation. Dr. Freeman described degenerative disc disease as follows:

“It is a disease that all of us will have some degree of or another as we age in our lumbar and cervical spine and elsewhere in our spine as well. It is an aging process that occurs in some people prematurely where the discs lose their normal elasticity, and soften and changes occur around the joint where this has happened with some overgrowth of bone at the margin of the disc joints, which we term osteophytes, and we term them osteo-phytes throughout the spine wherever they occur. In the cervical area, these osteophytes may project far enough laterally to either side, where that growth can impinge on the natural opening for the nerve root to exist from the spine and cause pressure.”

The doctor was asked whether or not he had an opinion based upon reasonable medical probability as to whether or not the bush hog accident had caused the degenerative disc disease and osteophyte formations. He replied that he did and said:

“I don’t feel that the accident that he alluded to when first taking his history caused his degenerative disc disease. I feel that the degenerative disc is present with or without trauma. And judging from the appearance from what we saw in Mr. O’Neal’s neck surgically, that the disease certainly predated, even though we don’t have an exact date of, that accident. Certainly it predated the approximate time that he had given as the date of his accident.”

He further testified:

“Well, we see patients that come to our office with complaints in the same line and ultimately with the same type diagnosis that Mr. O’Neal had that simply became symptomatic with no apparent cause. Just wake up with it in the morning. We also see patients that come in that we are quite sure became symptomatic, even though the disease in both of these patients may be exactly at the same state of progression, following traumatic episodes. So I don’t think that there is any doubt that trauma can produce symptoms from a disease that is present and that otherwise was asymptomatic.”

The doctor further testified that as far as causative reason for appellant’s trouble, he really did not have an opinion. He testified that it is possible for appellant’s degenerative disc disease to have been related to a trauma-type accident.

Appellant contends Dr. Freeman’s deposition was admissible; that it is not necessary for its admission that the doctor express an opinion with reasonable medical certainty that the bush hog accident caused his degenerative disc disease; that it is sufficient that the doctor testified that it is possible that his condition resulted from trauma. We disagree. The Supreme Court in Cone v. Inter County Telephone & Telegraph Co., 40 So.2d 148 (Fla.1949), said:

“. . . The responsibility of a tort-feasor for the consequences of his negligent acts must end somewhere, and under our legal system the liability of the wrongdoer is extended only to the reasonable and probable, not the merely possible, results of a dereliction of duty . . . . ”

Appellant relies upon Eli Witt Cigar & Tobacco Co. v. Matatics, 55 So.2d 549 (Fla.1951). Unlike the case sub judice, however, in Eli Witt the evidence warranted an inference of proximate cause and effect between the accident and the injured person’s condition. Here such an inference is not warranted in view of the lapse of time between the injury and the symptoms of the degenerative disc disease and further in view of the speculatory nature of a conclusion first that the disease resulted from trauma, and second as to the trauma which caused it, the trauma of the bush hog accident being only one of three traumas experienced by appellant.

As to appellant’s subcontention that the court erred in refusing to instruct the jury on the elements of damages for permanent injury, we find no error. His permanent injury only related to degenerative disc disease, the evidence of which was properly disallowed.

As to appellant’s further contention that the trial court erred in ruling his medical bills from Dr. Freeman inadmissible, we find no error. Appellant argues that since he (appellant) testified the bills were incurred as a result of the bush hog accident, the bills should have been admitted. It is only when the resulting injury is obvious, however, that medical bills have been admitted without expert testimony. See Merola v. Stang, 130 So.2d 119 (Fla. 3 DCA 1961). Dr. Freeman’s medical bills are inadmissible for the same reason that his deposition is not admissible.

We have considered the point raised by appellees in their cross-appeal and find it to be without merit.

AFFIRMED.

MELVIN, J., and FAY, LAWRENCE D., Associate Judge, concur.


author: MILLS, Chief Judge.

text:
    James Lewis WILSON, Appellant, v. STATE of Florida, Appellee.
    Nos. SS-233, SS-417.
    District Court of Appeal of Florida, First District.
    Nov. 13, 1980.

      Michael J. Minerva, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   MILLS, Chief Judge.

James Wilson appeals from his convictions of possession of heroin and cocaine. We reverse.

The record in this case reveals that officers of the Lake City Police Department conducted an investigation into the alleged possession of contraband by Wilson outside the city limits of Lake City. There is no evidence in the record of any action taken by Wilson inside the city limits. Pursuant to this investigation, an electronic listening device was placed on an informant and he was instructed to make two controlled purchases of drugs from a residence Wilson was known to frequent. Municipal officers directed and monitored these controlled buys. Based solely upon the information obtained as a result of these controlled buys, a municipal officer submitted an affidavit for a search warrant and the warrant was issued. A week later the warrant was executed by both city and county law enforcement officers, and drugs were discovered in the residence while Wilson was present.

Wilson filed a motion to suppress the contraband on the ground, among other things, that the municipal police officers were acting outside their jurisdiction in conducting the investigation and that one result of their having exceeded their jurisdiction was that the electronic eavesdropping violated Florida law. The trial court denied the motion to suppress and Wilson appealed.

The State contends that the municipal police officers were not outside their jurisdiction, relying on the testimony of one officer that he did have authority to conduct investigations outside the municipality. First, we note that an officer’s statement as to his authority and jurisdiction is not proof of such. Second, we disregard the speculative comments in the State’s brief to the effect that “perhaps this authority was pursuant to special appointment by the Sheriff of Columbia County.. . . ” There is no evidence to support such speculation. In fact, the evidence is to the contrary because the municipal police officers testified that they did not have authority to execúte the warrant or make the arrests involved in this case. Third, it is not totally lacking in accuracy to state that a municipal police officer, acting as a police officer, may conduct investigations outside the city limits. Such investigations are, however, limited to those situations where the subject matter of the investigation originated inside the city limits, State v. Chapman, 376 So.2d 262 (Fla. 3d DCA 1979); Parker v. State, 362 So.2d 1033 (Fla. 1st DCA 1978). Fourth, case law supports the position that private citizens may investigate criminal activity. State v. Shipman, 370 So.2d 1195 (Fla. 4th DCA 1979). Thus, a municipal police officer acting as a private citizen may conduct investigations outside the municipality, and the officer’s testimony that he had investigative authority outside the city could be true but irrelevant as to the issue framed by the facts of this case.

Since the officers here were acting outside their territorial jurisdiction, the investigation was proper, if at all, only if it could have been conducted by a private citizen. A reference to the statute governing interception of oral communications establishes that this investigation could not have been conducted by a private citizen.

Section 934.03(2)(c) and (d), Florida Statutes (1979), provides:

(c) It is lawful under this chapter for a law enforcement officer or a person acting under the direction of a law enforcement officer to intercept a wire or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.
(d) It is lawful under this chapter for a person to intercept a wire or oral communication when all of the parties to the communication have given prior consent to such interception.

Since the officers here were not authorized to act as law enforcement officers under the facts here and since they were not operating under the direction of a law enforcement officer, it was not lawful for them to intercept an oral communication where only one party had given prior consent to the interception.

Having established that the electronic surveillance was unlawful, however, a question still remains as to whether and to what extent the warrant was based on the electronic eavesdropping in comparison to the extent to which it was based on the officer’s observations and other actions. We need not reach this question because we have determined that under the facts of this case the entire investigation and affidavit were improper.

When officers act outside their jurisdiction, their actions are sustainable as acts of private citizens only if they are not acting “under color of their office.” Collins v. State, 143 So.2d 700 (Fla. 2d DCA 1962); State v. Shipman, supra. The affidavit for search warrant identified the affiant and another investigator as being of the Lake City Police Department, referred to the af-fiant’s “12 years experience as a police officer,” and was signed by the affiant in his capacity as investigator. Clearly, the affi-ant was acting “under color of office.”

Accordingly, we reverse the judgment and sentence and direct the trial court to grant the motion to suppress. In so doing, we wish to note that we share the concern our sister court, the Fourth District Court of Appeal, expressed in Shipman, supra, about the increase of activity by municipal police officers outside their jurisdiction. Too often the courts are held responsible for turning criminals loose on society when responsibility should properly be placed on law enforcement official who fail to adhere to reasonably foreseeable limitations on their conduct.

Having disposed of this case as we have, it is unnecessary to rule on the other issues raised in this appeal. We wish to comment, however, on an aspect of one of the issues raised for the benefit of the Bench and the Bar. Wilson argues that he is entitled to a new trial since the closing arguments and the motion for judgment of acquittal at the close of all the evidence were not recorded and a transcript is not available. The record establishes that closing arguments were not recorded because no party requested it.

Wilson cites Rule 2.070(a), (b), Fla.R.Jud. Adm.:

(a) When Reporting Required. All criminal and juvenile proceedings, and any other judicial proceedings required by law or court rule to be reported at public expense, shall be reported. Any proceeding shall be reported on the request of any party. The party so requesting shall pay the reporting fees, but this requirement shall not preclude the taxation of costs as authorized by law. Grand jury proceedings upon order of the chief judge of the circuit, shall be reported; however, no transcription may be made unless required by an order of a court of competent jurisdiction.
(b) Record. When trial proceedings are being reported, no part of the proceedings shall be omitted unless all of the parties agree to do so and the court approves the agreement. When a deposition is being reported, no part of the proceedings shall be omitted unless all of the parties and the witness so agree. When a party or a witness seeks to terminate or suspend the taking of a deposition for the time necessary to seek a court order, the court reporter shall discontinue reporting the testimony of the witness.

Noting that the rules took effect 1 July 1978 and that Rule 2.010, Fla.R.Jud.Adm., provides that the new rules “supersede all conflicting rules and statutes,” Wilson contends that the new rule supersedes Section 29.03, Florida Statutes (1977), which provides that the court reporter shall report arguments of counsel when ordered by either party in a criminal case or by the presiding judge. The effect, Wilson urges, is to remove any requirement that counsel request that certain proceedings be recorded and place a duty on the trial court to insure a complete record. Since there is no transcript of the cited portions of the trial, Wilson contends that appellate review is frustrated and a new trial is required.

We view the new rule as directory and not mandatory, but we wish to call it to the attention of the Bar and Bench and encourage conformance to it so that reversal of judgment and sentence upon an allegation of error in closing argument will not be required by the unavailability of a record to review. A recorded argument need not be transcribed except on request; but if it is requested, then it will be available and review may be had.

REVERSED and REMANDED for further proceedings consistent with this opinion.

McCORD and THOMPSON, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Robert P. FORTMAN and Helen Fortman, Appellants, v. FREEDOM FEDERAL SAVINGS AND LOAN ASSOCIATION OF TAMPA, Appellee.
    No. 80-782.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1980.
    Rehearing Denied Feb. 11, 1981.

      V. Patton Kee and James P. Hahn of Hahn, Breathitt, Roberts & Watson, Lake-land, for appellants.
    Frank Stanley and Craig M. Spanjers of Stanley, Wines & Smith, Auburndale, for appellee.
   PER CURIAM.

Affirmed.

SCHEB, C. J., and GRIMES and DAN-AHY, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

On motion for rehearing, appellants earnestly contend that our decision is in direct conflict with Teasley v. Blankenberg, 298 So.2d 431 (Fla. 4th DCA 1974). Because the two cases have many similarities, we have decided to write this opinion in order to explain why we believe Teasley to be inapplicable.

On October 5, 1972, R. C. Hobbs obtained from appellee a certificate of deposit issued in his name and the names of the two appellants. There was nothing else on the certificate itself which indicated the manner of ownership. Hobbs paid for the certificate and took it with him. At that time, he also received a signature card which he and appellants were to sign and return to appellee. The signature card contained language which indicated that the parties would own the certificate as joint tenants with right of survivorship.

About two months later, Hobbs died in an automobile accident. Despite the fact that one of appellee’s employees had reminded him on one occasion to return the executed signature card, he failed to do so before his death. After his death, appellee turned the proceeds of the certificate over to the personal representative of his estate. Appellants then sued appellee, contending that they were entitled to the proceeds of the certificate as Hobbs’ survivors.

Debra Watford, appellee’s operations supervisor, testified that when a person obtains a certificate of deposit in more than one name, he customarily signs a temporary duplicate signature card and leaves it with appellee pending return of the properly executed original signature card. Hobbs, however, signed neither the original nor the duplicate card. While Mrs. Watford stated that she had caused the account to be recorded in appellee’s computer as a joint account with right of survivorship, she said that for purposes of determining to whom a deposit should be paid, appellee always relied on the signature cards.

In ruling against appellants, the trial court held that the creation of a joint account with right of survivorship depended upon the execution of the “signature joint savings account authorization,” and that this never occurred. Appellants, on the other hand, contend that given the foregoing facts, they became entitled to the proceeds of the account upon Hobbs’ death by virtue of section 665.271, Florida Statutes (1971). That statute reads in pertinent part as follows:

665.271 Accounts in two or more names. — When a savings account is maintained in any association or federal association in the names of two or more persons, whether minor or adult, in such form that the moneys in the account are payable to either or the survivor or survivors then, in the absence of fraud or undue influence, such account and all additions thereto shall be the property of such persons as joint tenants. The moneys in account may be paid to or on the order of any one of such persons during their lifetimes or to or on the order of any one of the survivors of them after the death of any one or more of them. The opening of the account in such form shall, in the absence of fraud or undue influence, be conclusive evidence in any action or proceeding to which either the association or the survivor or survivors is a party, of the intention of all of the parties to the account to vest title to such account and the additions thereto in such survivor or survivors. By written instructions given to the association by all the parties to the account, the signatures of more than one of such persons during their lifetime or of more than one of the survivors after the death of any one of them may be required on any check, receipt, or withdrawal order, in which case the association shall pay the moneys in the account only in accordance with such instructions, but no such instructions shall limit the right of the survivor or survivors to receive the moneys in the account.

We believe that appellants’ argument falls short because in order for an account to be a survivorship account, the statute requires that it be “maintained ... in such form that the moneys in the account are payable to either or the survivor or survivors.” Here, appellee did not issue the certificate in a survivorship form, and there were no executed documents reflecting sur-vivorship. Hence, the account was never “in such form” that it could become a sur-vivorship account. Cf. Smith v. Thomas, 520 S.W.2d 132 (Mo.App.1975), in which the court held that a statute similar to section 665.271 did not cause bank deposits opened in more than one name to become survivor-ship accounts when the depositor signed no documents with the requisite survivorship language.

We also believe that section 665.271 should be read in pari materia with section 665.231(2), Florida Statutes (1971), which reads as follows:

(2) SAVINGS ACCOUNT CONTRACT. — Each holder of a savings account shall execute a savings account contract setting forth any special terms and provisions applicable to such savings account and the ownership thereof and the conditions upon which withdrawals may be made not inconsistent with the provisions of this chapter.

Therefore, until the parties signed the signature card which contained the savings account contract, the joint account with right of survivorship did not come into existence. Hence, appellants were not entitled to the proceeds upon Hobbs’ death.

In Teasley, a Mrs. Cooper opened a joint account with Frances Blankenberg at the First Federal Savings and Loan Association of Eustis. Since the district court of appeal observed that no evidence was offered that the account expressly provided for the right of survivorship, we may assume that Mrs. Cooper had not signed a signature card containing survivorship language. Nevertheless, the court concluded that Mrs. Blankenberg was entitled to the funds upon Mrs. Cooper’s death by virtue of section 665.271. In reaching its conclusion, the court said:

The statute applies to a savings account which is [being] maintained, and there is no question but that the Cocoa account was continuously maintained at all times after the effective date of the statute up until the account was closed by Mrs. Blankenberg’s withdrawal of the funds. Likewise, there is no question but that the Eustis account was under the savings and loan rules and regulations, maintained in the name of two persons “in such form that the moneys in the account [were] payable to either or the survivor or survivors”, despite the fact that there is an absence of evidence that the account expressly provided for right of survivor-ship as required generally under Section 689.15, F.S.

298 So.2d at 432. It is evident from the italics that our sister court concluded that it was only the savings and loan rules and regulations which dictated that the account had been maintained “in such form that the moneys in the account [were] payable to either or the survivor or survivors.” In the case at hand, however, appellants did not show that there were savings and loan rules and regulations which would automatically cause an account placed in two names, without more, to become a survivorship account.

Accordingly, we deny the motion for rehearing.

SCHEB, C. J., and GRIMES and DAN-AHY, JJ., concur.


author: RYDER, Judge.

text:
    James B. PRUITT, Appellant, v. STATE of Florida, Appellee.
    No. 79-1536.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 1980.
    B. Robert Ohle, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

James B. Pruitt appeals his conviction for attempted possession of more than 100 pounds of marijuana. We find no merit in the points raised on appeal and affirm the conviction. However, we remand for resen-tencing.

Appellant was convicted of attempted possession of more than 100 pounds of marijuana. This court has recently held possession of more than 100 pounds of marijuana to be a third — degree felony. Carvajal v. State, 392 So.2d 287 (Fla.2d DCA 1980); Reinersman v. State, 382 So.2d 325 (Fla. 2d DCA 1980). Section 777.04(4)(d), Florida Statutes (1979), then requires that attempted possession be a first — degree misdemeanor. The maximum punishment for a first-degree misdemeanor is one year in prison and a $1,000.00 fine. Sections 775.082(4)(a), 775.083(l)(d), Florida Statutes (1979). The court sentenced appellant to five years in prison and a $5,000.00 fine.

We vacate the illegal sentence imposed and remand for resentencing within the limits set out above.

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


author: CAMPBELL, Judge.

text:
    Linda L. DRAPER, Appellant, v. John David DRAPER, Appellee.
    No. 80-646.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 1980.
    Dale L. Price of Price & Price, Chartered, Bradenton, for appellant.
    Jerome Pratt, Palmetto, for appellee.
   CAMPBELL, Judge.

Linda Draper appeals from a final dissolution of marriage. She raises four issues on appeal. Only one of these issues has merit and requires discussion.

The pleadings in the lower court raised custody of the parties’ four minor children as an issue to be determined by the trial court. Both parties sought to be awarded custody. The oldest of the parties’ children, their fifteen year old son, testified concerning Mrs. Draper’s relationship with a Steven Stapleton. He also gave his opinion that his best interest would be served by being in the custody of Mrs. Draper. After cross-examination of the son by Mr. Draper’s attorney, Mr. Draper, without any qualifications, withdrew his request for custody of the minor children. The court at the conclusion of the final hearing announced as a condition of awarding custody to Mrs. Draper that Steven Stapleton would not be allowed to come around the children or the marital home which was awarded to Mrs. Draper. The trial court confirmed its announced condition by a restriction in the final judgment that provided:

2. Permanent custody of the minor children of this marriage, to — wit: JOHN DAVID DRAPER, JR., DANIEL DRAPER, SCOTT DRAPER, and AMY DRAPER, is hereby granted to Wife, with the requirement that STEVEN W. STAPLE-TON shall not be permitted to come around the children or the house, formerly the marital domicile of the parties hereto, unless the Respondent, LINDA L. DRAPER, marries him. Husband shall have reasonable visitation rights with the said children.

The court ordered this restriction in the absence of a finding that Mr. Stapleton adversely affected the children’s welfare, and in the absence of any competent, substantial evidence in the record that would have supported such a finding. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975); Hackley v. Hackley, 380 So.2d 446 (Fla. 5th DCA 1979). The restriction is also overbroad in that it prohibits Mr. Stapleton from visiting the home even when the children are not present. Such visits could have no adverse effect on the children. See Patrick v. Patrick, 358 So.2d 1184 (Fla. 1st DCA 1978).

The welfare of the children is the court’s prime consideration in a child custody proceeding. If, after an award of custody, a custodial parent engages in conduct or associations that adversely affect the minor children, the court has continuing jurisdiction to enter appropriate orders to protect the children. To impose prior conditions upon the custodial parent which are not supported by the evidence, however, is an abuse of discretion.

Consequently, we strike the restriction of Mr. Stapleton’s visits and affirm the order in all other respects.

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


text:
    Anthony WESTMORELAND, Appellant, v. STATE of Florida, Appellee.
    No. WW-118.
    District Court of Appeal of Florida, First District.
    March 13, 1981.
    Louis O. Frost, Jr., Public Defender, and William P. White, Asst. Public Defender, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith and Doris Jenkins, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant, Westmoreland, appeals from a judgment and sentence rendered below, wherein he received twenty years for second degree murder, alleging the trial court erred in failing to sentence him as a youthful offender. We agree with appellant and reverse.

Appellant was initially charged by information with murder in the second degree in September, 1979, only to have this trial terminated by a mistrial. Subsequently, in December, 1979, appellant was charged by indictment with murder in the first degree. This second charge arose out of the same homicide alleged in the September, 1979 information.

Westmoreland entered a plea of nolo con-tendere to the lesser included offense of murder in the second degree and was sentenced to a term of twenty years in prison.

Chapter 958 was amended by the legislature in 1980. However, it should be examined as it read when the alleged crime took place.

Section 958.04(1), Florida Statutes (1979) read as follows:

(1) The court may classify as a youthful offender any person:
(a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the Circuit Court pursuant to Chapter 39;
(b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime which is, under the laws of this state, a felony of the first, second, or third degree if such crime was committed before the defendant’s 21st birthday; and
(c) Who has not previously been classified as a youthful offender under the provisions of this act; however, no person who has been found guilty of a capital or life felony may be classified as a youthful offender under this act.

Section 958.04(2), Florida Statutes (1979), read as follows:

(2) A person shall be classified a youthful offender if such person meets the criteria of subsection (1) and such person:
(a) Has not previously been found guilty of a felony, whether or not adjudication of guilt has been withheld; or
(b) Has not been adjudicated delinquent for an act which would be a capital, life, or first degree felony if committed by an adult.

The court, in Killian v. State, 387 So.2d 385 (Fla. 2nd DCA 1980), commented on whether Chapter 958, as it was prior to the 1980 amendment, demanded mandatory or discretionary application. The Court there stated:

Despite the discretionary language of subsection (1), the clear mandate of subsection (2) is that if a person meets the criteria of subsection (1) and has not previously been found guilty or adjudicated delinquent for an act which would be more than a second degree felony, he is entitled, as a matter of right, to be sentenced as a youthful offender.

In Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980), rehearing denied (Fla. 1st DCA 1980), opinion filed October 27, 1980 [1980 F.L.W. 2043], this court held that § 958.04, Florida Statutes (Supp.1978), is mandatory if all the criteria found in subsections (1) and (2) are met. Accord: Dixon v. State, 403 So.2d 428 (Fla. 1st DCA 1981).

This court determines that as appellant was within the statutory provisions of Florida Statute § 958.04(1) and (2), in that he was between eighteen and twenty-one, had no prior felony convictions as an adult, nor any delinquent acts which would bar his classification as a youthful offender, that the trial court erred in failing to sentence appellant as a youthful offender.

The sentence is REVERSED and REMANDED for further proceedings and reconsideration in light of this opinion.

McCORD, SHIVERS and JOANOS, JJ., concur.


author: DANAHY, Judge.

text:
    Kenneth H. PRALL and Gertrude Prall, his wife, Appellants, v. Jerrold R. CORUM d/b/a Landmark Real Estate, Appellee.
    No. 79-2301.
    District Court of Appeal of Florida, Second District.
    April 1, 1981.
    Rehearing Denied April 28, 1981.

      John D. Kiernan of Goldner, Reams, Mar-ger, Davis, Piper & Kiernan, St. Petersburg, for appellants.
    Michael K. McFadden and Robert J. McDermott, Largo, for appellee.
   DANAHY, Judge.

The issue confronting us is whether a real estate broker’s failure to disclose certain facts to his principals constituted a nondisclosure of material facts which bars the broker from receiving any compensation for his services. We hold that the facts not disclosed by the broker in this case were material and reverse the trial judge’s determination to the contrary.

Plaintiff s/appellants (the Pralls) employed defendant/appellee (Corum), a real estate broker, to obtain a purchaser for their home in Belleair Beach. Corum presented an offer from a Mr. and Mrs. Vesey to purchase the Pralls’ property for a price of $157,000. The offer was in the form of a proposed contract reciting the payment of a $15,000 deposit by the Yeseys and containing a provision that the sale was contingent upon the Veseys obtaining mortgage financing for 80% of the contract price. The Pralls accepted the offer and signed the contract.

It is undisputed that the deposit of $15,-000 was never in fact made; the Yeseys gave Corum a check in the amount of $15,-000 and asked Corum to hold it because they did not have the funds to cover it. The check was never made good and never negotiated. There was a dispute among the parties as to whether Corum advised the Pralls that the Veseys had failed to make the deposit of $15,000. The trial judge resolved that dispute in favor of the Pralls, specifically finding that Corum failed to inform the Pralls of the Veseys’ “default” upon the deposit check in the amount of $15,000. We see no reason to disturb that finding.

As the closing date approached, Corum informed the Pralls that the Veseys could not obtain 80% mortgage financing and asked the Pralls if they would be willing to take back a purchase money second mortgage in the amount of approximately $60,-000. The Pralls indicated that they were willing to do so, but when they learned that the Veseys had obtained a mortgage commitment to the extent of $99,500, so that the taking back of a purchase money second mortgage of $60,000 would amount to 100% financing, they declined to accept those terms.

On the evening prior to the date set for closing, Corum contacted the Pralls and said that the Veseys expected to have the cash needed to close within a few days, but that the closing on the next day as scheduled could be accomplished only if the Pralls were willing to accept a purchase money second mortgage in the amount of $45,000 for two or three days. The Pralls agreed to this, with the suggestion that the term of the second mortgage should be a period of thirty days just in case any problems arose. The closing took place on that basis. It is undisputed that the cash needed by the buyers at closing, in the amount of approximately $15,000, was supplied through a loan made by Corum to the Veseys. Corum did not disclose that loan to the Pralls until some time after the closing. Corum received a commission of $8,480 and retained a loan obligation due him from the Veseys in the amount of $15,000. The Pralls took back a purchase money second mortgage from the Veseys in the amount of $45,-226.48 payable in thirty days.

The Veseys never made any payment on the second mortgage, requiring the Pralls to foreclose that mortgage and find another buyer for their home. They brought this suit to recover Corum’s commission of $8,480 and damages consisting of (1) their costs of foreclosure and (2) expenses incurred by them in connection with the resale of their property.

After a nonjury trial, the trial judge entered the final judgment from which the Pralls bring this appeal. As noted above, the trial judge found that Corum failed to inform the Pralls of the Veseys’ default upon the deposit check in the amount of $15,000. The final judgment also recited the finding that the Pralls would not have accepted the second mortgage had the true circumstances been known to them. Notwithstanding these findings, the trial judge awarded to the Pralls only their costs of foreclosing the Veseys’ second mortgage, the payments they had been required to make on the first mortgage in the interim, and utility bills they had paid with respect to their residence pending resale. In support of his denial of any other damages award to the Pralls and his denial of their claim for recovery of Corum’s commission, the trial judge commented that “the [Pralls] allowed the contract for sale to continue in effect after a material breach” and that “the court cannot conclude that this sale would not have culminated in some other fashion than it did had the offer of a second mortgage been declined.” The foregoing grounds are insufficient as a matter of law to support the result reached in this case; the trial judge erred in refusing to award the Pralls the amount of Corum’s commission and all items of damages demanded by them.

The rule in Florida is that a real broker negotiating a sale of property for another is bound to disclose to his principal any facts known to him which are material to the transaction. Any concealment from the principal of material facts known to the broker will forfeit the broker’s right to compensation for his services. Carter v. Owens, 58 Fla. 204, 50 So. 641 (1909). Nondisclosure of a material fact by a broker, where it occurs, will operate to bar his recovery of a commission even though the principal may have suffered no financial injury as a result thereof "and may have received full value for the property sold. Crosby v. Ashley, 291 So.2d 12 (Fla.3d DCA 1974).

In the case before us Corum failed to disclose to his principals, the Pralls, the facts that (1) the Veseys never made a $15,000 deposit as recited in the contract for sale, and (2) Corum supplied the $15,000 which the Veseys should have deposited, and the sale was closed on that basis. Under the circumstances of this case, those facts were material facts and Corum’s nondisclosure bars his right to retain the commission which was paid to him to closing.

Ordinarily a broker cannot be deprived of his earned commission simply because it ultimately develops that the buyer is financially unable to complete the purchase. However, it is the broker’s duty to deal with his principal in the utmost good faith and bring to his principal’s attention such information as the broker might have concerning the buyer’s financial inability to complete the purchase. The broker may not withhold from his principal any material information which he might have on this subject. Mason v. Bulleri, 25 Ariz.App. 357, 543 P.2d 478 (Ct.App. 1975).

In a case similar to that before us, the Court of Appeals of Maryland held that where a broker received a deposit check from a purchaser which the purchaser asked the broker not to negotiate and which in fact was never made good, the nondisclosure of this fact constituted the nondisclosure of a material fact barring any right of the broker to compensation. Sellner v. Moore, 251 Md. 391, 247 A.2d 523 (Ct.App. 1968). The court in that case pointed out that the contract required the purchaser to make a substantial cash payment within a year of closing and that had the seller known that the buyer could not come up with the $5,000, the seller might very well have concluded that it would be much less likely the buyer would have the substantial cash payment required to be made a year later. As noted above, the court in this case found specifically that the Pralls would not have accepted the second mortgage which they subsequently had to foreclose had the true circumstances been known to them.

The reasons given by the trial judge for denying the Pralls’ recovery of Corum’s commission apparently mean that the trial judge did not believe the nondisclosed facts to be material, in that the sale might have closed on some other basis had the Pralls declined to accept a purchase money second mortgage. That is speculative at best. Nothing in the record suggests that the Veseys could have obtained other financing. In any event, the Pralls were entitled to know all the circumstances. They might very well have repudiated the sale entirely had they known the Veseys could not come up with $15,000 from the date of the contract to the date of closing. More important, the Pralls’ home was taken off the market for a period of months while the Pralls unknowingly were without protection against a default by the buyers.

REVERSED AND REMANDED with directions to enter a final judgment for the Pralls in accordance with this opinion.

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


text:
    Walter C. McMILLIAN, Appellant, v. STATE of Florida, Appellee.
    No. 80-808.
    District Court of Appeal of Florida, Second District.
    April 1, 1981.
    Jerry Hill, Public Defender, Bartow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s judgment and sentence noting that the issue of ineffective assistance of counsel is not properly raised on appeal. State v. Barber, 301 So.2d 7 (Fla.1974); Valero v. State, 393 So.2d 1197 (Fla.3d DCA, 1981).

OTT, Acting C.J., and DANAHY and CAMPBELL, JJ., concur.


author: McCORD, Judge. McCORD, Judge. McCORD, Judge.

text:
    DADE FEDERAL SAVINGS & LOAN ASSOCIATION and Fidelity & Deposit Company of Maryland, Appellants, v. Doris SMITH, Appellee.
    No. XX-188.
    District Court of Appeal of Florida, First District.
    April 10, 1981.
    On Rehearing June 9, 1981.
    Rehearing Denied Sept. 24, 1981.
    Robert C. Barrett of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    J. David Parrish and Bill McCabe of Shepard, McCabe & Cooley, Orlando, for appellee.
   McCORD, Judge.

Appellee, who was 56 years of age, was obese weighing 280 pounds, had arthritis in her knees, and had worked for appellant for 23 years. She walked with a cane, and appellant had known for years that she had arthritis. She never missed work on account of it, however. She was a cleaning woman, and while working, she tripped and fell on her right knee and head, causing a sprain to her right knee. Dr. Field testified that she had degenerative arthritis that preceded the sprain. He gave her a 5% disability to the right lower extremity on account of the fall and a 20% pre-existing impairment to the right lower extremity from the arthritis. When asked if he had an opinion within reasonable medical probability as to whether the industrial accident injury she sustained merged with the preexisting impairment to cause her to have a greater degree of disability than the industrial accident alone would have produced, he replied:

No, sir. It was my feeling that she had a 20% pre-existing impairment on a degenerative basis, she had five percent as a result of her industrial accident, and together they would be 25% but not a greater overall disability than those two together. I don’t think the industrial accident either aggravated or accelerated her arthritic condition.

Further clarifying this, he said:

I feel that she had a 20% pre-existing, and I think she had a five percent as a result of the industrial accident. I think the two equals twenty-five percent in my way of simple arithmetic, but I don’t think that the two merged together made one any greater than the other. I mean I don’t think the arthritis was worsened by her industrial accident, and I don’t think her industrial accident, as I stated it here, was worsened by her arthritis, but I think the two together, yes, gave her a twenty-five percent.”

He stated that she had traumatic arthritis in both knees, the right worse than the left, with narrowing of the articular cartilage on the medial compartment; that she may ultimately have to have surgery in the right knee, but it is his best opinion that this state would have been reached with or without her fall and that it simply served to intensify her pain and make her more aware of her limitations with her right knee; that the injury was not the ultimate cause of her arthritic condition since apparently the arthritis was seen and recognized in x-rays the day of her fall and did not develop since the injury; that she will not significantly improve but that weight loss may help her symptoms but will not alter the existence of arthritis in her knee; that he does not think she will be able to return to work as a maid as that requires much time spent on her feet, squatting, stooping, kneeling and with or without surgery, the limitations will be about the same. He said her impairment in the left knee was about 10%.

Dr. Gresham gave appellee a 25% impairment in the right knee and a 15% impairment in the left knee and said the fall aggravated the pre-existing condition in the right knee but to “no clinically measurable degree.” When questioned as to whether the injury from the accident merged with the pre-existing condition to give her an overall disability rating greater than the accident alone would have given her, he said:

I think she had an arthritic condition prior to her fall and that she had some permanent impairment with her leg before the fall, and as a result of the injury, she had some disability as a result of that period and that two of them equal twenty-five percent. I testified that she had five percent due to the fall. She must have had twenty percent pre-existing, so twenty plus five equals twenty-five percent.

Dr. Gresham stated that he did not think she could ever return to gainful employment unless something was done to make her better. When asked what could be done, he said:

“She could lose a lot of weight, number one. Possibly that is all that would be necessary.”

He said he did not think she was making any headway with the weight loss problem.

The deputy commissioner in his order erroneously stated that appellant testified she was 66 years old — she was 56. The deputy found as follows:

1. Claimant sustained an accident arising out of and in the course and scope of her employment on February 3, 1978, resulting in injuries to her right knee and head.
2. Claimant is entitled to 75% permanent partial disability of the body as a whole based on loss of wage earning capacity as well as the pre-existing arthritic condition and obesity. In making this determination, I have taken into consideration the claimant’s testimony that she had been employed with the employer for 23 years and had been able to perform her normal duties without problems until the industrial accident. I also accept the testimony of both Dr. Gresham and Dr. Field that the claimant’s pre-existing arthritic condition was aggravated by the industrial accident and that the claimant’s obesity has contributed to her symptoms. I have also carefully reviewed the Memorandums of Law submitted by the respective attorneys and specifically find that the injury sustained to the claimant’s right leg in the industrial accident has merged with the claimant’s pre-exist-ing arthritic condition in both knees and the pre-existing obesity to cause a permanent partial disability that is materially and substantially greater than that would have resulted from the injury to the claimant’s right leg alone.
3. I find that the claimant would have continued her employment at Dade Federal Saving and Loan which was light and sedentary in nature but for the industrial accident and that her condition following the industrial accident was such to render her unable to perform that type of light and sedentary employment. Due to the nature of employment prior to the industrial accident and the nature of her injuries following the industrial accident, I find that it would have been fruitless for her to merely “test her employability” and therefore, find that she is 75% permanently and partially disabled.

A merger occurs under § 440.49(2)(b) when the employee has a permanent physical impairment due to a previous accident or disease or congenital condition and subsequently suffers an accident arising out of and in the course of his employment from which he suffers permanent disability and such permanent disability is materially and substantially greater than that which would have resulted had the pre-existing permanent physical impairment not existed. Here, if we were confronted only with the pre-existing permanent physical impairment caused by the arthritis followed by the industrial injury and the 75% loss of appellee’s wage-earning capacity found by the deputy commissioner, we would have the necessary ingredients for merger. When, however, the deputy commissioner coupled appellee’s pre-existing obesity with the pre-existing arthritis as an element of the merger, the merger was invalidated because there is no evidence presented as to the cause of the obesity or to show that it is or is not permanent. Under the facts of this case, however, it is not necessary that there be a merger of the obesity to sustain the award of the deputy commissioner. Merger will be an issue if and when the employer seeks reimbursement from the special disability trust fund. Here it is apparent that appellee had the permanent loss of wage-earning capacity found by the deputy commissioner when we look to the factors to be considered in determining loss of wage-earning capacity as set forth in Chaffee v. Miami Transfer Company, Inc., 288 So.2d 209 (Fla.1974), and Ball v. Mann, 75 So.2d 758 (Fla.1945). As stated in those authorities, these factors include the injured employee’s physical condition, age, industrial history, education and inability to obtain the type of work which he can do insofar as affected by the injury. Thus, when we consider in the present case that appellee, with her arthritis and obesity, satisfactorily performed her work as a maid prior to the accident and that subsequent thereto she has been unable to do such work because of her physical condition coupled with the additional impairment resulting from the accident, she is entitled to compensation for permanent disability resulting from loss of wage-earning capacity. We, therefore, affirm the deputy commissioner’s award of 75% permanent partial disability without affirming his finding of merger and affirm his award of attorney’s fee to appellee’s attorney.

Affirmed.

ROBERT P. SMITH and ERVIN, JJ., concur.

ON PETITION FOR REHEARING

McCORD, Judge.

On petition for rehearing appellants contend that this Court invalidated the deputy commissioner’s finding of merger and that, therefore, appellee’s recovery of benefits is limited to the scheduled compensation for the injury to her right knee, pursuant to § 440.15(3)(b), Florida Statutes; that this Court erred in upholding the deputy commissioner’s finding of disability due to loss of wage-earning capacity since economic impact is not a factor in benefits awarded pursuant to scheduled injuries. We recognize that in our opinion we did not declare that a finding of merger was necessary to this award of benefits based on loss of wage-earning capacity. To the contrary, however, as appellant correctly points out, since appellee’s injury occurred prior to July 1979, a finding of merger is necessary to this award of benefits which otherwise would be governed by the scheduled injury provisions of § 440.15, Florida Statutes (1977). Compare Mims & Thomas Mfg. Co. v. Ferguson, 340 So.2d 920 (Fla.1976), and Magic City Bottle and Supply Co. v. Robinson, 116 So.2d 240 (Fla.1959). For that purpose, we must revisit and modify the original opinion.

In the original opinion, we determined that a finding of merger based on appellee’s pre-existing obesity and pre-ex-isting arthritic conditions was invalid since there was no evidence presented as to the cause of obesity or as to its permanency. Upon reconsideration of the evidence pursuant to the petition for rehearing, we have determined that a merger did occur in this case, between the pre-existing arthritic condition and the knee injury, though the evidence is insufficient to include the pre-ex-isting obesity in the merger. Appellant took appellee as it found him as to both the obesity and the arthritis. Consequently, the benefits payable are not governed by § 440.15. The deputy commissioner was correct in going beyond the scheduled injury limitation and in considering appropriate factors to determine loss of wage-earning capacity. We, therefore, affirm the deputy commissioner’s award of 75% permanent partial disability in view of the fact that merger did occur in this case.

Petition for rehearing is granted and the Court’s opinion is modified as above stated.

ROBERT P. SMITH and ERVIN, JJ., concur.

ON FURTHER MOTION FOR REHEARING

McCORD, Judge.

Appellant has filed a motion for rehearing as to our previous opinion on motion for rehearing contending that our two previous opinions in this cause conflict with Bordo Citrus Products v. Varnadore, 395 So.2d 260 (Fla. 1st DCA 1981). We do not find conflict, but in view of the allegation of conflict, we consider that some clarification would be appropriate.

The distinction between Varnadore and this case hinges on our recognition of two types of merger — medical merger [which is merger of two physical (anatomical) impairments] and loss of wage-earning capacity merger (in which the resulting disability is the loss of wage-earning capacity). While we have found no opinion up to this point specifically dealing with loss of wage-earning capacity merger and using that terminology, it is obvious from the workers’ compensation law that the legislature has provided for it. Section 440.49(4)(b)2 b, Florida Statutes (1977), provides:

“Merger” describes or means that:
* sfc * * *
b. The permanent disability resulting from the subsequent accident or occupational disease is materially and substantially greater than that which would have resulted had the permanent physical impairment not existed . . . (Emphasis supplied.)

Section 440.02(9), Florida Statutes (1977), provides:

“Disability” means incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.

In Varnadore, the court found the evidence did not support a relationship between the accident and the permanent partial disability (permanent partial anatomical impairment) assigned by the doctor and accepted by the deputy commissioner. Therefore, there could be no medical merger. Loss of wage-earning capacity merger was not involved in that case. Here, however, the deputy commissioner found a 75% permanent partial disability based upon loss of wage-earning capacity which he found to have resulted from the combination of the previously existing permanent partial arthritis impairment and the permanent partial impairment caused by the accident. The evidence supports this finding. The evidentiary basis therefor is set forth in the deputy commissioner’s findings 2 and 3, quoted in our original opinion. Although Dr. Field testified there was no merger, he and Dr. Gresham were testifying only as to medical merger. It was not within their province to consider whether or not there was loss of wage-earning capacity merger. That was a determination only the deputy commissioner could make. Compare Photo Electronics Corporation v. Glick, 398 So.2d 900 (Fla. 1st DCA 1981).

In this case, the deputy commissioner was justified in increasing the disability rating due to a loss of wage-earning capacity merger, in that when all factors were considered together, appellant was no longer able to work as she could before the industrial accident. Compare Wright v. Gulf and Western Food Products and Risk Management Services, Inc., 401 So.2d 1316 (Fla., 1981). In Wright, although the court did not specifically state that the basis of its finding of permanent total disability was a loss of wage-earning capacity merger, in our view that is the essence of the ruling in that case.

Appellee has filed a motion to reissue mandate in this cause (which was recalled upon the filing of the second motion for rehearing) contending that the second motion for rehearing is not permissible. Florida Appellate Rule 9.330(b), relating to motions for rehearing or clarification, states as follows:

“A party shall not file more than one such motion with respect to a particular decision.”

Here, in ruling upon appellant’s first motion for rehearing, we found it necessary to, and did, change the entire basis for our previous ruling, writing a supplementary opinion in the case. Since that opinion changes the entire basis for the ruling of the first opinion, we, therefore, consider it to be a new decision to which a new motion for rehearing may be filed.

The motion for rehearing is denied.

SMITH, C. J., and ERVIN, J., concur.


text:
    Ronald WHEATLEY, Appellant, v. STATE of Florida, Appellee.
    No. 79-1710.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.
    Rehearing Denied Oct. 14, 1981.

      Peter D. Lent, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed with directions that appellant be granted a new trial in accordance with the Supreme Court’s decision in Tascano v. State, 393 So.2d 540 (Fla.1980), rehearing denied February 27, 1981.

MOORE, BERANEK and HERSEY, JJ., concur.


text:
    Robert Lee GREER, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. ZZ-64.
    District Court of Appeal of Florida, First District.
    April 28, 1981.
    Rehearing Denied June 2, 1981.
    Robert L. Greer, pro se.
    Catherine L. Dickson, Asst. Gen. Counsel, Tallahassee, for Florida Parole and Probation Commission, respondent.
   PER CURIAM.

Petitioner was sentenced in November, 1978, to a term of 5 years with a minimum mandatory period of 3 years for the crime of aggravated assault. Petitioner asserts the Commission refuses to establish a presumptive parole release date for him and will not set a date until he has served his mandatory minimum term. Responding to this Court’s inquiry, the Commission affirmatively acknowledged petitioner’s claim, noting its rule which specifies that “. . . the Commission will not assign presumptive parole release dates to persons serving mandatory minimum sentences until they have served the mandatory minimum.” Fla.Admin.Code, Rule 23-19.02(2)(d).

Our review of the relevant statutory provisions of Chapter 947, Florida Statutes (1979), leads us to conclude that the Commission is under a clear legal duty to establish, within six months or one year from the date of initial confinement, a presumptive parole release date for every inmate eligible for parole consideration, regardless of when he may actually be released on parole. See 1979 Op.Att’y.Gen.Fla. 079-92 (Oct. 10, 1979).

Furthermore, we note the Parole Commission’s response indicates action inconsistent with its argued position. In particular, the Commission states that the instant petitioner is scheduled to have his initial interview some eight months prior to the expiration of his minimum mandatory term of imprisonment. It appears that the Commission is establishing a date at its convenience rather than at the expiration of an inmate’s minimum mandatory term of imprisonment or within the time limits imposed by the statutes. Section 947.16, Florida Statutes (1979), does not permit such an exercise of discretion. Finding Rule 23-19.-02(2)(d), Florida Administrative Code invalid, we hereby order the Commission to establish a presumptive parole release date for petitioner within 15 days, if such has not already been established, and henceforth timely establish presumptive parole release dates for all inmates with mandatory minimum sentences, if they are otherwise entitled to such dates.

McCORD, ROBERT P. SMITH, Jr. and ERVIN, JJ., concur.

      . Section 947.16(1), Fla.Stat. (1979), provides that:
      Every person who has been, or who may hereafter be, convicted of a felony or who has been convicted of one or more misdemeanors and whose sentence or cumulative sentences total 12 months or more, who is confined in execution of the judgment of the court, and whose record during confinement is good, shall, unless otherwise provided by law, be eligible for consideration for parole. An inmate who has been sentenced for an indeterminate term or a term of five years or less shall have an initial interview conducted by a hearing examiner panel within six months after the initial date of confinement in execution of the judgment. An inmate who has been sentenced for a minimum term in excess of five years shall have an initial interview conducted by a hearing examiner panel within one year after the initial date of confinement in execution of the judgment. An inmate convicted of a capital crime shall be interviewed at the discretion of the Commission. As used in this section, the term “confined” shall be deemed to include presence in any appropriate treatment facility, public or private, by virtue of transfer from the Department of Corrections under any applicable law. (emphasis supplied)
      Section 947.16(2), Fla.Stat. (1979), provides:
      An initial hearing may be postponed for a period not to exceed 60 days. Such postponement shall be for good cause, and the reasons therefor shall be noted in writing and included in the official record. However, in no case shall such postponement result in a hearing being conducted any time later than one year after the initial date the inmate is confined in execution of the judgment of the court, (emphasis supplied)

      While Section 947.16 does contain several exceptions under which an inmate is not entitled to have his PPRD established within a short time from his initial confinement, no such exception speaks to minimum mandatory terms.


text:
    STATE of Florida, Appellant, v. Larry HERNDON, Appellee.
    No. 80-608.
    District Court of Appeal of Florida, Second District.
    May 1, 1981.
    Rehearing Denied July 1, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    Arthur N. Eggers, Tampa, for appellee.
   PER CURIAM.

Reversed. See State v. Benitez, 395 So.2d 514 (Fla., 1981) rehearing denied (Apr. 13, 1981).

SCHEB, C. J., and HOBSON and CAMPBELL, JJ., concur.


text:
    SARASOTA COUNTY, Florida, and Joanne E. Koester, Supervisor of Elections, Appellants, v. CITY OF NORTH PORT, FLORIDA, Appellee.
    No. 80-2226.
    District Court of Appeal of Florida, Second District.
    May 13, 1981.
    Rehearing Denied June 29, 1981.
    Donald M. Middlebrooks and Talbot D’Al-emberte of Steel, Hector & Davis, Miami, Richard E. Nelson and Richard L. Smith of Nelson, Hesse, Cyril & Weber, Sarasota, for appellants.
    William M. Hereford of Hereford & Taylor, Sarasota and Allen J. Levin, Port Charlotte, for appellee.
    Claude L. Mullís of league counsel for Florida League of Cities, Inc., Tallahassee, amicus curiae.
   PER CURIAM.

Affirmed. See Sarasota County v. Town of Longboat Key, 355 So.2d 1197 (Fla.1978).

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


text:
    Julio Ramon REGALADO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-681.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Julio Ramon Regalado, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: BOARDMAN, Judge.

text:
    TAMPA FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant, v. AEON, INC., a Florida Corporation, Appellee.
    No. 80-1908.
    District Court of Appeal of Florida, Second District.
    May 20, 1981.

      Irving G. Lawrence and Eddy R. Resnick of Lawrence & Gold, Tampa, for appellant.
    Simson Unterberger of Kessler & Unter-berger, Tampa, for appellee.
   BOARDMAN, Judge.

Tampa Federal Savings and Loan Association, defendant in the trial court, appeals a final judgment in favor of appellee/plain-tiff Aeon, Inc. We affirm.

The pertinent facts of this case are that in 1969 appellee submitted a proposal to appellant to purchase six parcels of real estate owned by appellant and to borrow the funds necessary to improve the property to be purchased. Appellant’s loan committee decided that in order to avoid having several small purchase money mortgages on record, it would request one large purchase money mortgage on the group of six tracts, on which a single monthly payment would be made. Glenn James, appellee’s president, then requested that a provision be included in the mortgage to allow for the release of any one of the tracts from the mortgage provided a certain lump sum was paid on the mortgage. Appellant, aware that appellee was operating on a small profit margin with little ready cash, agreed to this request. It was agreed that the release amount would be at least the present appraised value of each parcel plus the repairs and fifteen per cent of the total. The mortgage (hereinafter referred to as the first mortgage) was executed in the principal amount of $51,603.54 with a release provision drawn by appellant providing:

It is agreed that the Association will release from the lien of this mortgage any of the Tracts herein described PROVIDED the payments on this loan are paid up to date, and FURTHER PROVIDED there is paid on the principal of this loan the amount shown for the TRACT to be released:
TRACT 1: $7,373.64 4337 Grove View Avenue
TRACT 2: $13,135.24 3007 Mitchell Street
TRACT 3: $14,039.37 905-26th Avenue
TRACT 4: $12,250.55 5815-2nd Street
TRACT 5: $6,537.76 9402 Semmes Street
TRACT 6: $7,675.01 7106 Taliaferro Street

Appellee subsequently submitted a second proposal to appellant for the purchase of four additional tracts of land on the same conditions as the previous transaction, and obtained a similar mortgage in the principal amount of $32,350. The release provision in this mortgage (hereinafter referred to as the second mortgage) listed the tracts as follows:

TRACT 1: $10,798.39 10322 N. Armenia Avenue
TRACT 2: $8,679.70 3707 Ohio Avenue
TRACT 3: $10,494.65 8210 Semmes Street
TRACT 4: $8,427.26 3121 Paxton Avenue

Appellee at all times kept its payments on both mortgages current. On October 1, 1979, the unpaid principal on the note secured by the second mortgage was $26,-674.51. On that date, appellee tendered to appellant $2,753.27 and requested that it be applied to the unpaid principal on this note and that Tract 4 be released from the lien. Appellant refused the request and the tender, stating that the amount required to release the lien from Tract 4 was $8,427.26. On February 27, 1980, the unpaid principal on the note secured by the first mortgage was $41,952.74. On that date, appellee requested the release of Tract 5 from the lien of that mortgage. Appellant refused, advising appellee that a payment towards principal of $6,537.76 was required before appellant would execute a release. Appel-lee then brought this action.

The trial court found that the release provisions required and were intended to require

release of the various tracts referred to therein upon reductions in the principal sum referred to in said Mortgage and evidenced by the Promissory Note referred to in said Mortgage and not by payment to the mortgagee of the amount shown for each such tract at the time a release of a particular tract was requested by the mortgagor.

The court therefore ordered appellant to release Tract 5 (first mortgage) immediately and to release Tract 4 (second mortgage) upon payment by appellee of an amount sufficient to reduce the unpaid principal on that mortgage to $23,922.74.

Appellant takes the position that according to the trial court’s ruling, under the first mortgage appellee would be entitled to the release of Tract 1 once the principal was reduced by $7,373.64, that is, by an additional $835.88 after the release of Tract 5. At this point the principal balance would be $44,229.90. As appellee made additional payments the principal balance would continue to be reduced, and appellee would be entitled to the release of an additional tract each time the principal balance was reduced by the predetermined amount for that tract set forth in the release clause until the principal balance was reduced by $14,039.37. At this point, the release of Tract 3, the last tract, would be required, and the loan would become unsecured.

We do not agree that this is what the trial court intended, although the language of its ruling is not as clear as it might have been. We are convinced that the trial court meant that the first tract release of which was requested must be released if the principal amount of the mortgage had been paid down by the amount listed for that tract in the release provision, but that the successive release of any other tract would be required only if the principal had been reduced by the sum of the principal amount listed for that tract and the principal amount listed for each and every other tract previously released that had originally constituted part of the security for the mortgage. In other words, if appellee next desires, for example, release of Tract 3 of the second mortgage, the principal must be paid down by $18,921.91, and the last tract on that mortgage cannot be released until the entire principal balance (plus interest) has been paid. In this way any principal that remains outstanding would at all times be fully secured.

This is the most reasonable construction of the language used in the release provision and appears to reflect what the parties intended. Thus the trial court has followed the primary rule of construction of a contract, which is to ascertain the intention of the parties, which is accomplished not only from the face of the instrument, but also from the situation of the parties and the nature and object of their transactions. Jackson v. Parker, 153 Fla. 622, 15 So.2d 451 (1943); Watson v. Poe, 203 So.2d 14 (Fla. 4th DCA 1967). Moreover, it is well settled that any ambiguity in a written contract will be construed against the party who drew the provision. E. g., Sol Walker & Co. v. Seaboard Coast Line Railroad Co., 362 So.2d 45 (Fla.2d DCA 1978). Since appellant drafted the mortgages in question here, any ambiguity in the release provisions would have to be construed against appellant and in favor of appellee.

Finally, appellant’s assertion that the trial court was prejudiced by its concern for the Gillespies, who were the buyers of one of the tracts in question and who were involved in a suit to require appellee to convey title, which action was consolidated for trial with the instant case, is without support in the record.

Accordingly, the final judgment appealed is AFFIRMED as construed in this opinion.

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


text:
    Manuel A. ALVAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2164.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    Rehearing Denied July 8, 1981.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J. and HENDRY and NESBITT, JJ.
   PER CURIAM.

The judgment of conviction and sentence under review is affirmed. We conclude that any error concerning the admission into evidence at trial of the defendant’s statement to the police: (a) based on a failure of the state to establish an independent corpus delicti was cured by the defendant’s testimony at trial which supplied the missing proof of corpus delicti, Adams v. State, 367 So.2d 635 (Fla.2d DCA), cert. denied, 376 So.2d 68 (Fla.1979); Bullard v. State, 151 So.2d 343 (Fla. 1st DCA 1963), cert. denied, 377 U.S. 992, 84 S.Ct. 1915, 12 L.Ed.2d 1044 (1964); Kozakoff v. State, 104 So.2d 59 (Fla.2d DCA 1958); Roberts v. State, 154 Fla. 36, 16 So.2d 435 (1944); see Landsdown v. United States, 348 F.2d 405 (5th Cir. 1965); and (b) based on a Fourth Amendment violation was not preserved for appellate review as that objection was not raised at any time in the trial court. Koedatich v. State, 263 So.2d 631 (Fla.3d DCA), cert. dismissed, 268 So.2d 533 (Fla.1972).

Affirmed.


text:
    Jay Christopher AMANN, Appellant, v. STATE of Florida, Appellee.
    No. 80-1823.
    District Court of Appeal of Florida, Second District.
    June 10, 1981.
    Jerry Hill, Public Defender, and Richard N. Staten, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant, a 17-year-old, was convicted of burglary of a dwelling, burglary of a structure, and two counts of grand larceny. The transcript of the sentencing hearing clearly reflects that the trial judge sentenced appellant as a youthful offender pursuant to section 958.05(2), Florida Statutes (1979). Appellant was orally sentenced to six years for the burglary of a dwelling and five years on each of the remaining counts. The five year sentences were to be served concurrently with the six year sentence. The trial judge further stated that, “[t]he maximum you will serve will be four years under the law.” The written judgment and sentence tracks the oral sentence except that it does not provide that the maximum term of imprisonment was to be four years. The appellant contends that because of this omission his sentence was improper. We agree.

Section 958.05(2) provides that where a person is classified as a youthful offender, he may not be committed to the Department of Corrections for more than six years. The appellant’s sentence complies with this requirement. However, that statute further demands that the sentence specify the following:

A period of not more than the first four years to be served by imprisonment and a period of not more than two years to be served in a community control program.

The written sentence imposed by the trial court does not indicate how long appellant is to be imprisoned, and neither the oral nor the written sentence specifies how long he must serve in a community control program. Therefore, the sentence fails to satisfy the requirements of section 958.05(2) and must be vacated. The case is remanded for the entry of a corrected sentence, but, in all other respects, appellant’s conviction is affirmed.

SCHEB, C. J., and GRIMES, J., concur.


text:
    Harry B. HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 81-766.
    District Court of Appeal of Florida, Second District.
    June 24, 1981.
   PER CURIAM.

Affirmed. See Pennington v. State, 398 So.2d 815 (Fla.1981).

RYDER, A. C. J., and DANAHY and CAMPBELL, JJ., concur.


author: GRIMES, Judge.

text:
    BRADEN RIVER CIVIC ASSOCIATION, INC., James W. Alspaugh and Helen E. Wilson, Appellants, v. MANATEE COUNTY, a political subdivision of the State of Florida, H. C. Green and Joe F. Garrott, as Trustees, and Horseshoe Cove Resort, Inc., Appellees.
    No. 80-2009.
    District Court of Appeal of Florida, Second District.
    June 26, 1981.
    Rehearing Denied July 24, 1981.
    Ernest S. Marshall, Bradenton, for Appellants.
    Alan H. Prather of Mann & Fay, Chartered, Bradenton, for appellee Manatee County.
    John P. Harllee, III, of Harrison, Harllee, Porges & Bailey, Bradenton, for appellees Green, Garrott and Horseshoe Cove.
   GRIMES, Judge.

Appellants brought suit to set aside the rezoning of two parcels of property in Manatee County to permit a travel trailer and recreational vehicle park. Following a four-day nonjury trial, the circuit judge ruled adversely to appellants, and this court affirmed the final judgment without opinion. Braden River Civic Association v. Manatee County, 388 So.2d 1124 (Fla.2d DCA 1980). Upon motion, the trial court awarded appellees attorney’s fees totaling $10,000 pursuant to the provisions of section 57.105, Florida Statutes (1979). Appellants now contend that the court erred in assessing those fees.

Section 57.105 provides for the award of reasonable attorney’s fees to the prevailing party when the court finds “that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.” The statutory language has been equated to a finding of frivolousness. Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980).

The trial was long and tedious, and many of appellants’ witnesses added little to their case. Yet, appellants did demonstrate that the rezoning was inconsistent with the Manatee County Comprehensive Land Use Plan, and an expert in the field of land use planning testified that the rezoning was incompatible with surrounding uses and did not bear a substantial relationship to the health, safety and welfare of the community. Hence, we cannot say that appellants’ case was totally without merit.

We reverse the award of attorney’s fees.

SCHEB, C. J., and RYDER, J., concur.