text:
    AUTO-OWNERS INSURANCE COMPANY and Speedline Athletic Wear, Inc., Appellants/Cross Appellees, v. AMERICAN STATES INSURANCE COMPANY and Gloria Quintana, Appellees/Cross Appellants.
    No. XX-252.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1981.

      Kurt Preston Hampp of Jacobs, Robbins, Gaynor, Hampp, Burns, Cole & Shasteen, P.A., St. Petersburg, for appellants/cross appellees.
    Joseph L. Thury of Antinori & Thury, Tampa, for Gloria Quintana, appellee/cross appellant.
    James T. Earle of Watson, Goldstein, Earle, Douglass & Dubbeld, P.A., St. Pe-tersburg, for American States Insurance Company, appellee/cross appellant.
   PER CURIAM.

This case is before us on appeal and cross appeal of an order of the Deputy Commissioner finding that Quintana suffered a compensable injury on April 3, 1976, reached maximum medical improvement from that injury on June 7, 1977, and suffered a second compensable accident on August 31,1978 from which she reached maximum medical improvement on June 24, 1980. The commissioner established the periods of temporary total disability for each accident and the percentage of permanent disability for the first accident. Auto-Owners Insurance Company was the employer’s insurance carrier at the time of the second accident while American States was the employer’s insurance carrier at the time of the first accident. Neither carrier had actual notice of the second accident. American States had paid claims arising from the accident of April 1976 and continued paying the employee’s medical expenses after August 1978 assuming they arose from the initial injury. The commissioner found that Auto-Owners had notice of the second accident as of May 7,1979 and that Auto-Owners should reimburse American States for excess payments made after that date.

Auto-Owners and the employer appeal arguing that the findings were insufficient to conclude that the claimant sustained a com-pensable injury on August 31, 1978, that there was insufficient evidence to support the finding of MMI from the first accident on June 7, 1977, and that the commissioner should have determined the percentage of permanent disability from the second accident. American States cross appeals seeking reimbursement from Auto-Owners for excess payments from August 31,1978. We affirm the points on appeal and reverse on the cross appeal.

The findings and record are clear as to the date and nature of the second accident. There was competent substantial evidence in the record to support the finding of MMI on June 7, 1977 from the first accident. Under Section 440.25(3)(a) Fla. Stat. (1978), since repealed, the claim for permanent disability from the second accident, based upon lost wage earning capacity, was not ripe at the time of the hearing below. Marathon Theatre v. Capps, 396 So.2d 280 (Fla. 1st DCA 1981).

The commissioner found that the employee had properly notified her employer of the second accident. He also found that lack of actual notice prejudiced Auto-Owners due to the inability of the carrier to investigate the accident promptly. Applying Section 440.42(3) F.S. (1978) the commissioner placed the risk on American States until actual notice to Auto-Owners. We find the ruling to be erroneous.

Section 440.41(1) F.S. (1978) provides that “Notice to or knowledge of an employer of the occurrence of the injury shall be notice to or knowledge of the carrier.” The commissioner found that notice to the employer of the second accident was promptly made. Therefore, notice to the carrier, Auto-Owners, is imputed by operation of the statute. See Sam Rogers Enterprises v. Williams, 401 So.2d 1388 (Fla. 1st DCA 1981), opinion filed August 17, 1981. The commissioner should have ordered the reimbursement of American States’ excess payments from August 31, 1978.

AFFIRMED in part, REVERSED in part and REMANDED.

MILLS, ERVIN and LARRY G. SMITH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SOUTH MIAMI POOLS and Travelers Insurance Company, Appellants, v. Casey GRAVES, Appellee.
    No. YY-150.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1981.
    Daniel J. Sullivan of Gladson & Sullivan, Miami, for appellants.
    Jerold Feuer, Miami, for appellee.
   PER CURIAM.

The Deputy Commissioner granted the claimant’s petition for modification and found that the claimant is now permanently totally disabled. We have determined that there is competent substantial evidence to support this finding. However, Finding Number 10 of the Order is stricken, and the Order as modified herein is affirmed.

ROBERT P. SMITH, Jr., C. J., JOANOS and THOMPSON, JJ., concur.


text:
    J. W. H., a child, Appellant, v. STATE of Florida, Appellee.
    No. YY-177.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1981.
    Michael E. Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

J. W. H. raises two points on appeal concerning the legality of his order of disposition adjudicating him delinquent for having committed a simple battery. The first point, contending that the judge who presided at the disposition proceeding did not adequately ascertain the facts which had previously taken place, is controlled by McCoy v. State, 344 So.2d 250 (Fla. 1st DCA 1977) and Castor v. State, 351 So.2d 375 (Fla. 1st DCA 1977), and we find it without merit.

We agree with the appellant’s contention in point two that the length of appellant’s term of punishment stated in the order of disposition exceeded the maximum amount allowable under Section 39.11(3), Florida Statutes (1979). See G. W. M. v. State, 391 So.2d 738 (Fla. 4th DCA 1980). Moreover, the state concedes error as to this point. Accordingly, we reverse the cause and remand with directions that the lower court shall modify its order of disposition by confining its punishment to the parameters required by Section 39.11(3).

MILLS, ERVIN and LARRY G. SMITH, concur.


text:
    J. C. PARKS, Appellant, v. DADE COUNTY WASTE DIVISION and Metropolitan Dade County Self-Insurance Fund, Appellees.
    No. QQ-474.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1981.
    L. Barry Keyfetz of Keyfetz & Poses, Miami, for appellant.
    Charles E. Kelley of Pyszka, Kessler & Adams, Miami, for appellees.
   PER CURIAM.

This cause is before us on appeal from a workers’ compensation order awarding benefits based on a 70 percent permanent partial disability predicated on a loss of wage earning capacity. Claimant J.C. Parks contends that the Deputy Commissioner’s denial of permanent total disability was not supported by substantial competent evidence. We affirm this portion of the order, as there was sufficient evidence in the record that Parks failed to apply for available positions within his physical and mental capabilities. Thus, the Deputy Commissioner properly found that Parks’ work search was inadequate to show that employment was closed to him in the open labor market. See Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla. 1975). See also Coe v. Kentucky Fried Chicken, 393 So.2d 1156 (Fla. 1st DCA 1981).

The claimant also urges that the Deputy Commissioner erred in permitting the employer/carrier to deduct a lump sum of $4,000 which Parks received as part of a settlement agreement relating to a prior injury. The order found that this amount was “previously paid permanency” which the employer was entitled to set off under Section 440.15(5)(c). However, the settlement agreement merely provided that the $4,000 was paid “for compensation, past, present, and future.” There is no evidence in the record to support the employer’s contention that the entire amount constituted permanent disability payments. Amounts received for temporary disability pursuant to a settlement agreement are not subject to deduction under Section 440.15(5)(c). Nunez v. Holiday Inn, 380 So.2d 472 (Fla. 1st DCA 1980). Accordingly, because ap-pellee failed to prove its entitlement to a deduction under the applicable statute, we reverse that portion bf the Deputy Commissioner’s order awarding the employer/carrier a $4,000 credit.

BOOTH, SHAW and WENTWORTH, JJ., concur.


author: SHAW, Judge.

text:
    CITY OF MIAMI, (Self-Insured), Appellant/Cross-Appellee, v. Eduardo GARRIDO, Appellee/Cross-Appellant.
    No. VV-130.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1981.
    James C. Kelley of Lanza, Sevier & Wom-ack, P. A., Coral Gables,' for appellant/cross-appellee.
    Peter S. Schwedock of Pelzner, Schwe-dock & Finkelstein, P. A., Miami, for appel-lee/cross-appellant.
   SHAW, Judge.

The appellant/cross-appellee, City of Miami, having voluntarily dismissed its appeal, the claimant’s cross-appeal presents for our consideration the Deputy Commissioner’s denial of temporary partial disability benefits.

Claimant, while employed by the City of Miami as a police officer, received a com-pensable head injury. His pre-injury earnings approximated $1,590.00 a month. After being injured, he worked one week as a truck driver earning $175.00, but he was fired when the employer became aware that he was under medical treatment. In January of 1979, he worked for about a month selling cars for Cabriolet Porsche and earned approximately $1,500.00 before being laid off. He earned another $2,000.00 with Cabriolet Porsche working the Christmas rush, but he was laid off after the Christmas season. He then began buying, repairing and selling used cars on his own, earning from $1,600.00 to $2,000.00. Between March 1,1980 and March 27,1980, he returned to work for Cabriolet Porsche and sold two cars for which he has not yet received a commission.

Walker v. Electronic Products & Engineering Company, 248 So.2d 161 (Fla. 1971), teaches us that wages actually being earned after injury is a factor entitled to great weight. It logically follows that post-injury earnings equal to pre-injury earnings are the strongest evidence of non-impairment of wage earning capacity. Such earnings are, however, only one of several factors to be considered in determining whether a claimant has suffered a diminution of his wage earning capacity.

The claimant was born in Havana, Cuba. He came to this country at the age of 13 years, finished Miami Springs Senior High and has completed at least two years at the University of Miami. His only full-time job, prior to his employment with the City of Miami, was that of a collector and repossessor of cars for a small loan company. His injury has left him with a 10% to 15% psychiatric disability. He is no longer suited for police work. There is unrebutted evidence of constant pain and a massive consumption of drugs. (Fiorinal six times a day, Quaaludes three times a day, Mellaril three times a day, Tofranol four times a day, and Tagamet with every meal). Prospective employers have expressed a reluctance to hire him once they are made aware of his daily drug intake.

The Deputy Commissioner placed undue emphasis upon post-injury earnings to the exclusion of other relevant factors reflecting upon wage earning capacity loss. See Walker, supra. The conclusion that the claimant in this instance has suffered no diminution of his wage earning capacity is not supported by competent substantial evidence that accords with reason.

On May 10, 1979, claimant’s doctor reported that the claimant was able to work other than as a policeman, and the deputy correctly held that the claimant’s temporary total disability ended on that date, replaced by temporary partial disability. The record indicates a loss of wage earning capacity between the dates of May 10, 1979 and March 27, 1980, the hearing date, and we remand for determination of temporary partial disability benefits due to the claimant subsequent to May 10, 1979.

REVERSED and REMANDED.

BOOTH and WENTWORTH, JJ., concur.


author: ROBERT P. SMITH, Jr., Chief Judge. WENTWORTH, Judge,

text:
    Dirk Allan CARR, Appellant, v. CENTRAL FLORIDA ALUMINUM PRODUCTS, INC., and North River Insurance Company, Appellees.
    No. WW-234.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1981.

      Larry Mark Polsky, Daytona Beach, for appellant.
    Steven A. Rissman of Cooper & Rissman, P. A., Orlando, for appellees.
   ROBERT P. SMITH, Jr., Chief Judge.

Carr appeals from a deputy commissioner’s order denying him certain workers’ compensation disability benefits for a thumb injury sustained in October 1979, after the 1979 amendments to the workers’ compensation act, Chapter 440, Florida Statutes (1979) became effective. Although the injury left Carr physically impaired to the extent of 34 percent of the thumb and eight percent of the body according to a physician’s estimate, the injury did not qualify Carr for “permanent impairment” benefits under Section 440.15(3)(a)l, which provides for a one-time payment up to $7,500 only to claimants suffering one of three types of permanent injuries: amputations, 80 percent or more vision loss, or serious head or facial disfigurement. Carr obviously does not fall into any of these special injury categories.

Carr contends that the 1979 statute violates his constitutional rights to equal protection, due process, and access to the courts for redress of injury. Carr urges that we invalidate the 1979 statute and reactivate the prior and now repealed Chapter 440 benefits, entitling Carr to 60 weeks of compensation for a lost thumb, cf. State ex rel. Boyd v. Green, 355 So.2d 789 (Fla. 1978), or that we remit Carr to common tort law remedies in circuit court. We sustain the 1979 statute under this constitutional challenge, and so affirm the deputy’s decision that the benefits voluntarily paid appellant — medical and temporary disability payments — were all that were due.

Before 1979, Chapter 440 provided for recovery of permanent partial disability benefits based on a schedule for enumerated injuries and on the estimated degree of physical impairment or loss of wage-earning capacity in other cases. Section 440.-15(3), Fla.Stat. (1977). In an effort to control high costs, inequitable awards, and delays in payment of claims, the legislature in 1979 substituted “permanent impairment” benefits under Section 440.15(3)(a) and “wage-loss” benefits under Section 440.15(3)(b) for the disability benefits previously awarded for similar permanent injuries.

Addressing Carr’s contention that the statutory classification offends the equal protection clause by denying him benefits for his permanently impaired thumb while granting benefits to those whose permanent impairment is by amputation, loss of 80 percent or more of vision, after correction, or serious facial or head disfigurement, Section 440.15(3)(a)l, our task is to determine whether the legislative classification was made on some reasonable basis, bearing a substantial relationship to a legitimate legislative purpose. Lasky v. State Farm Ins. Co., 296 So.2d 9, 18-20 (Fla.1974). Statutory classifications need not be mathematically precise, and they need not address all aspects of a problem at once. In re Estate of Greenberg, 390 So.2d 40 (Fla.1980).

The classification Carr complains of is not arbitrary but is grounded both in a reasonable contemporary view of the economic impact of amputations, sight loss, and head disfigurement, and in the history of workers’ compensation legislation, which from the first presumed economic loss from injuries of this character. Seen in the context of a statutory purpose to compensate injured workers for actual wage loss rather than any longer for anatomic disability or loss of wage-earning capacity, the legislature has in effect presumed that these designated injuries will almost inevitably result in economic loss of the sort the legislature determined to compensate. Representative William Sadowski and senior aides to the House Insurance Committee, sponsors of the comprehensive 1979 workers’ compensation legislation, contemporaneously expressed the legislature’s rationale for extending special wage-loss benefits to the designated classes:

Amputations. The severance of a limb produces economically disabling consequences, mental and physical, which are “of a different order from the reactions to the loss of use of a limb,” among them being the reality and realization that natural function can never be restored.

Loss of sight. Despite the resourcefulness of sightless persons and the growing sensitivity of a sighted society, “Blindness or a very severe restriction of vision is also in a class by itself because the ability to see is necessary in so many occupations.”

Severe facial and head disfigurement. These injuries, too, have a presumptive impact on working careers and therefore on wages. “Facial and head disfigurement is a special kind of disfigurement because in our society clothing does not coyer it up.”

Mr. Sadowski and his coauthors stated:

The economic loss resulting from these injuries can be quantified on an actual wage-loss basis for the most part. But given the severity of these types of injuries, and given the very special kinds of problems associated with each, the legislature determined that some special recognition should be made apart from the wage-loss benefits available to everyone. The actual monetary award in the new section 440.15(3)(a) is not very large, but the special recognition of those who are truly injured is there.

These legislative findings are wholly consistent in principle, and to some extent in detail, with early workers’ compensation legislation that scheduled a short list of injuries deemed uniquely productive of wage loss, so much so as to foreclose all reasonable debate on the issue. See A. Larson, Workmen’s Compensation Law § 57.14(c):

The historical evidence is quite clear that the schedule was never intended to be a departure from or an exception to the wage-loss principle. The typical schedule, limited to obvious and easily-provable losses of members, was justified on two grounds: the gravity of the impairment supported a conclusive presumption that actual wage loss would sooner or later result; and the conspicuousness of the loss guaranteed that awards could be made with no controversy whatever.

We conclude that scheduling these obviously significant injuries for special treatment is reasonably related to the legislature’s purpose of making the benefit payment system more efficient by eliminating endless debates before deputy commissioners and the courts over exactly what percentage of use of a limb, for instance, has been lost in a» given case. In Larson’s view, the addition of “partial loss of use” of body members to scheduled permanent injuries was responsible for much of the complexity and litigiousness that attended the system in recent years, which the Florida legislature sought in 1979 to obviate.

For similar reasons we conclude that Section 440.15(3)(a)l does not violate due process. The measure bears a reasonable relationship to permissible legislative objectives and is not discriminatory, arbitrary, or oppressive. Lasky, supra, 296 So.2d at 15.

On a single page Carr’s brief raises, though he scarcely argues, that the 1979 wage-loss scheme as a whole offends Article 1, Section 21 of the Florida Constitution, guaranteeing access to courts, by not providing an adequate alternative to common law remedies or statutory remedies in existence when the Constitution was adopted. See Kluger v. White, 281 So.2d 1 (Fla.1973). In view of the paucity of Carr’s argument on the subject, we decline to recognize the issue as adequately raised for decision. Lynn v. City of Ft. Lauderdale, 81 So.2d 511, 513 (Fla.1955); 5 C.J.S. Appeal and Error § 1324(3) at pp. 341-42 (1958).

AFFIRMED.

MILLS, J., concurs.

WENTWORTH, J., concurs specially with opinion.

WENTWORTH, Judge,

concurring specially.

Appellant’s argument before the deputy and in this court challenges only § 440.-15(3)(a)l and § 440.11, Florida Statutes. He had already been paid for medical and temporary disability benefits, and did not claim any wage loss or attack the wage loss provisions even with respect to the minimum threshold loss requirements. The argument, instead, relates solely to the disparity in statutory treatment of claimants who suffer no wage loss, by classifying permanent impairment by amputation, etc., as compensable and impairment by loss of use as noncompensable.

I agree with affirmance of the order dismissing the claim only because it presented no issue which the deputy could resolve except by invalidating a statute upon grounds of facial unconstitutionality which were beyond her adjudicatory authority. The recent decisions detailing doctrines of exhaustion of statutory remedies, and primacy of district court review over collateral circuit court jurisdiction, do not in my view support disposition of the merits of appellant’s constitutional issues at this point. None of the prior opinions supporting initial resolution of constitutional issues here have involved a case such as that now before us, in which all issues presented at the hearing level were contingent on facial unconstitutionality of a statute, which could not be determined at that level. In that narrow situation, I would leave the constitutional issues for disposition in another context either before a trial court or by a proper predicate for original jurisdiction here.

This appeal seems to me to present the essentially absurd contention that the deputy erred (1) in dismissing a claim for permanent impairment compensation benefits under a statute which was repealed before claimant’s accident occurred and (2) in further denying an alternative claim for a declaration by the deputy that a common law remedy exists. The parties and the deputy all plainly recognized that neither the existence nor degree of permanent impairment was in controversy. The claim for permanent impairment benefits, based solely on grounds of alleged facial unconstitutionality of the current statute, presented no issue which the deputy had authority to decide. I am unable to see how such a procedure can logically or legally be used to obtain initial adjudication of the constitu-' tional issues here, although that might be done in a case where other issues were presented for resolution by the deputy and for exercise of this court’s appellate jurisdiction. Even if we could overlook the form and treat the appeal as a petition to mandate the deputy’s exercise of jurisdiction on the merits of the claim, appellant presents no rationale or authority to support reinstatement of the former statute. I would therefore deny that relief, even assuming that there is merit in his constitutional attack on the provision which grants permanent impairment compensation (in addition to wage loss) for loss by amputation but denies such benefits for anatomic loss of use or function of a body member, in this case a thumb.

I would also deny the alternative request for declaratory judgment as to the availability of common law remedies. Declaratory relief of that kind is not, of course, provided either by Chapter 440 or by original jurisdiction of this court in the case before us. Appellant’s contention is that the Florida Constitution’s access clause compels nullification of § 440.11, Florida Statutes, because § 440.15(3)(a)(l) excludes his impairment from compensation while including loss of a thumb in whole or in part by amputation. That contention, however, is clearly premature until such time as appellant may file an action for specific relief in a competent judicial forum.

I would accordingly affirm without determining the constitutional issues.

      . U.S.Const. amend. XIV § 1; Art. I, § 2, Fla. Const.

      . U.S.Const. amend. XIV § 1; Art. I, § 9, Fla. Const.

      . Art. I, § 21, Fla.Const.

      .Sadowski, Herzog, Butler & Gokel, The 1979 Workers’ Compensation Reform: Back to Basics, 7 Fla.St.U.L.Rev. 641, 649-53 (1979); see also Abberger & Granoff, Legislative Overview: The Florida Workers’ Compensation Act, 1979, 4 Nova L. J. 91, 95-98 (1980).

      . Sadowski, et al., supra n. 4, at 681-82.

      . Id at 682-83.

      . This expansion of the schedule concept “opened the floodgates of controversy and litigation,” A. Larson, Larson’s Workmen’s Compensation Law § 57.14(d) (1981).
      ... “[PJartial loss of use” set the stage for the innumerable numbers games to be played by doctors, lawyers, administrators and judges, endlessly quarreling about whether the loss of use of an arm was 15 percent or 22 percent or 39 percent. The next step was to extend the schedule beyond members.... [I]t is no wonder that the problems of both disability evaluation and proof become unmanageable.

      . (3) PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS.—
      (a) Impairment benefits.—
      1. In case of permanent impairment due to amputation, loss of 80 percent or more of vision, after correction, or serious facial or head disfigurement resulting from an injury other than an injury entitling the injured worker to permanent total disability benefits pursuant to subsection (1), there shall be paid to the injured worker the following:
      a. Fifty dollars for each percent of permanent impairment of the body as a whole from 1 percent through 50 percent; and
      b. One hundred dollars for each percent of permanent impairment of the body as a whole for that portion in excess of 50 percent.

      . 440.11 Exclusiveness of liability.—

        (1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third party tort-feasor and to the employee, . ..

      .“Such wage-loss benefits shall be ... equal to 95 percent of the difference between 85 percent of the employee’s average monthly wage and the salary, wages, and other remuneration the employee is able to earn after reaching maximum medical improvement, as compared on a monthly basis; provided that the monthly wage-loss benefits shall not exceed an amount equal to 66« percent of the employee’s average monthly wage at the time of injury-”

      . Cases collected in Department of Professional Regulation v. Hall, et al., 398 So.2d 978 (Fla. 1st DCA 1981).

      . Florida Constitution, Article I, Section 21.


text:
    Brian BROXSON, Appellant, v. STATE of Florida, Appellee.
    No. WW-445.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1981.
    Michael E. Allen, Public Defender, and Thomas Presnell, Jr., Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant appeals from a judgment and sentence imposed after the revocation of his probation. We affirm the judgment but remand the case for correction of sentence.

At the sentencing hearing, counsel for appellant requested that the court give appellant credit for the two and one-half months time which he spend in the county jail on this violation of probation charge. The sentence imposed did not credit appellant for any time incarcerated prior to imposition of sentence. A sentencing court is required under Section 921.161(1), Florida Statutes (1979), to credit a defendant with all time spent in the county jail before sentence. Hutchinson v. State, 360 So.2d 1160, 1161 (Fla. 1st DCA 1978). Accordingly, we remand the case to the trial court for correction of sentence. Appellant need not be present for this purpose.

BOOTH, SHAW and WENTWORTH, JJ., concur.


author: McCORD, Judge.

text:
    Eugene BOLLINGER, Appellant, v. STATE of Florida, Appellee.
    No. XX-371.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1981.

      Michael Minerva, Public Defender and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant was convicted in circuit court under Count IV of a Fourth Amended Information which charged him with conspiracy to possess more than 20 grams of cannabis, a misdemeanor. He appeals his judgment and sentence. We reverse.

Prior to appellant’s jury trial, subsequent to filing an information in the case, the state successively filed four amended infor-mations, the last being filed on the day before the trial. Appellant was charged only in Count III and IV of the Fourth Amended Information, he being charged jointly with one Menkevich in these two counts.

Count I charged Kuhns and Houck with possession with intent to sell, manufacture or deliver more than 20 grams of cannabis (a felony). Count II charged Kuhns and Houck of conspiring with appellant and eleven other persons to commit the felony of possession of more than 20 grams of cannabis (a misdemeanor). Count III apparently was an attempt to charge appellant and Menkevich with felony possession of cannabis. Count IV, on which appellant alone was tried (separately from all other counts), charged appellant as aforesaid with conspiracy to possess more than 20 grams of cannabis (a misdemeanor). Prior to trial, Menkevich had bargained a plea to a lesser offense. Count V charged Menkevich with possession of cocaine, but it was nolle prossed. Counts I and II were apparently severed from Count IV for trial, and Count III was dismissed prior to trial for failure to state a crime. Although the point was not raised in the trial court, appellant contends that the circuit court was without jurisdiction to try him on Count IV as it charged a misdemeanor; that the sole jurisdiction of Count IV was in the county court. This defect being jurisdictional, the question may be raised for the first time on appeal. Radford v. State, 360 So.2d 1303 (Fla.2d DCA 1978).

Under Article V, Section 20, of the Florida Constitution, circuit courts have jurisdiction of all felonies and of all misdemeanors arising out of the same circumstances as a felony which is also charged. County courts have jurisdiction of all criminal misdemeanor cases not cognizable by the circuit courts. Thus, the circuit court did not have jurisdiction to try appellant for the misdemeanor charged in Count IV unless it arose out of the same circumstances as a felony which was also charged. In Schueren v. State, 370 So.2d 83 (Fla. 1st DCA 1979), this Court said:

In State v. Croy, 289 So.2d 398 (Fla.1974), the court found that a felony charge of drug paraphernalia possession had “aris[en] out of the same circumstances” as a misdemeanor charge of possession of less than five grams of marijuana, where both proscribed items had been discovered “at the same time and place, in the possession of the same persons,” and the drug paraphernalia charge was “a related crime” to the marijuana possession charge. Here, however, the felony charges allegedly arising out of the same circumstances as the misdemeanor conspiracy charge against appellant were counts of drug paraphernalia and marijuana possession against Toth and Workman, and the evidence against appellant was not discovered at the same time or place as was that against Toth and Workman. In addition, the record reveals that appellant was tried separately from Toth and Workman so the interests of judicial efficiency and economy of time contemplated by the constitutional provision were not served.

In the case sub judice, Count I charges Kuhns and Houck with felony possession of cannabis, Count II charged a misdemeanor, Count III was dismissed because it did not charge any crime, and Count V was nolle prossed by the state before trial of Count IV. Therefore, the only question for consideration is whether or not Count IV, which went to trial charging only appellant with misdemeanor conspiracy with Kuhns and Houck and others to possess more than 20 grams of cannabis arose out of the same circumstances as Count I, which charged Kuhns and Houck with felony possession or more than 20 grams of cannabis. In the first place, although the court’s order is not in the record, Counts I and IV were obviously severed for trial. Since Count IV was tried separately, as we said in Sehueren, the interests of judicial efficiency and economy of time contemplated by the constitutional provision were not served. In addition, however, Count I charged Kuhns and Houck with possession of cannabis, and this trial transcript of Count IV did not show either appellant, Kuhns or Houck to be in possession of cannabis. Further, the record reveals that the evidence as to Counts I and IV was not gained at the same time or place. Thus, there was not a felony which was also charged which arose out of the same circumstances as Count IV. Therefore, the circuit court did not have jurisdiction.

Appellant also contends that the trial court erred in overruling his objections and motion for mistrial made when the state twice elicited from witness Proffitt testimony concerning a polygraph examination. Proffitt testified that he came to Tallahassee to lay the groundwork for a narcotics deal. He implicated appellant in his testimony. During his testimony, he twice mentioned that his plea agreement with the state included his passing a polygraph examination. On each occasion, appellant unsuccessfully objected and moved for a mistrial. The trial court overruled the objections and denied the motions for mistrial. Appellee contends that here, as in Sullivan v. State, 303 So.2d 632 (Fla.1974), the denial of the motion for mistrial, if error, was harmless error. Sullivan, however, was predicated upon a very different situation. Among other distinctions, unlike here, there the court offered to give a cautionary instruction to the jury to disregard the reference to the polygraph test. (In Sullivan, the defendant declined the offer.) Also, there, unlike here, the evidence excluding the accomplices’ testimony was so strong that the Supreme Court could affirm in spite of it. There the court in the primary opinion authored by Justice Dekle and concurred in by Chief Justice Adkins and Justices Roberts and McCain said:

... we observe that the evidence of appellant’s guilt, including both the testimony of McLaughlin (a participant in the homicide) and appellant’s prior confession is so overwhelming that we cannot say that this one utterance caused a miscarriage of justice which would necessitate a reversal of the conviction. We conclude that, under the peculiar circumstances presented here, the trial court did not commit reversible error in denying appellant’s motion for mistrial. (Emphasis supplied.)

Justice Boyd, in a special concurring opinion with which Justice Ervin concurred, said:

A close examination of the record indicates that the jury had ample reason to find the Defendant guilty of first degree murder and robbery with or without the testimony referring to the lie detector test.

Justice Overton, in a special concurring opinion with which Chief Justice Adkins and Justices Roberts, McCain and Dekle concurred, said:

Fortunately in the present case the evidence, excluding the accomplice’s testimony, was so clear and convincing as to leave no reasonable doubt but that the defendant was guilty of the crimes charged. Most noteworthy among this evidence was a detailed confession, which was dictated, personally corrected, and signed by the defendant after thrice being read his rights. This statement differed in no significant way from the testimony of the defendant’s accomplice, McLaughlin, at trial.
When arrested, the defendant was wearing the victim’s watch and had in his wallet several of the victim’s credit cards, which he had been using to purchase various items. The shotgun, the tire iron, the pistol, and tape similar to that used to tape the victim’s hands were found in Sullivan’s car. Containers of money, similar to those used at the restaurant, were also found in his motel room.
Where independent evidence of guilt is overwhelming, a constitutional error can be rendered harmless. (Citations omitted.) In light of these decisions, I have little difficulty in concluding that the prosecutorial error in the present case was indeed harmless.

In the case sub judice, the error cannot be said to have been harmless. Without the testimony of accomplice Proffitt there would have been little, if any, evidence upon which a conviction could be sustained. It was, therefore, extremely important to the State’s case that the jury believe accomplice Proffitt. His revelation that, as part of his plea bargain with the state, he was to take a lie detector test, could as easily be construed by the jury to mean that he had taken and passed the test as that he had not yet taken it. In fact, it is more likely that the jury would conclude that since the state had put him on the stand as a state witness, he had taken the test and passed it. This obviously would cause the jury to view his testimony with greater credibility than if it had not been revealed to them that he had agreed to take the lie detector test. It was error to overrule appellant’s objections and motions for mistrial, and under the circumstances of this case, the error was not harmless. Compare Dean v. State, 325 So.2d 14 (Fla. 1st DCA 1975).

We have considered appellant’s contention that the trial court erred in denying his motion for discharge under the speedy trial rule and find it to be without merit.

REVERSED.

SHIVERS, J., and LILES, WOODIE A., (Retired) Associate Judge, concur.

      . The results of a polygraph test are not admissible in evidence. Anderson v. State, 241 So.2d 390 (Fla.1970); Kaminski v. State, 63 So.2d 339 (Fla.1952).


author: HURLEY, Judge.

text:
    M. A. GALBRAITH, Jr., as City Attorney of Boca Raton, Appellant, v. Jack INGLESE, Appellee.
    No. 79-1784.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    M. A. Galbraith, Jr., City Atty., and Robert A. Eisen, Asst. City Atty., Boca Raton, for appellant.
    Ellis S. Simring, Hollywood, for appellee.
   HURLEY, Judge.

Appellant, M. A. Galbraith, challenges the trial court’s determination that he is not entitled to an award of attorney’s fees pursuant to Section 57.105, Florida Statutes (1979). We conclude that the suit against Mr. Galbraith was completely devoid of a justiciable issue of either law or fact and, consequently, the statute’s mandatory provision is operative and requires an award of a reasonable attorney’s fee. Accordingly, we reverse.

Jack Inglese, the plaintiff below, sued the State Department of Transportation, the Crabtree Construction Company, the City of Boca Raton, and M. A. Galbraith individually in his capacity as city attorney of Boca Raton. Inglese owns property in Boca Ra-ton which abuts N.W. 4th Avenue and he claimed that the various defendants were responsible for raising the grade of the road and thereby damaging his property. The count against Galbraith stated that, “M. A. Galbraith .. . the City Attorney of Boca Raton ... is the administrator in charge of roadway construction in Boca Raton ... and was negligent in authorizing and permitting the aforementioned construction work to proceed so that Plaintiff’s property is now below street level in violation of local and state ordinances.”

Galbraith filed a motion to dismiss which was denied. Thereafter, he filed a motion for summary judgment, but before the scheduled hearing, the plaintiff filed an ex parte motion for dismissal. The motion included a proposed order dismissing the suit against Galbraith with prejudice and requiring each party to bear his own costs. Galbraith immediately moved to vacate the latter portion of the order and, in place thereof, to tax costs and attorney’s fees. In response, the trial court vacated the cost provision, taxed Galbraith’s costs against the plaintiff and denied Galbraith’s request for attorney’s fees. This appeal ensued.

Our starting point is Section 57.105, Florida Statutes (1979) which provides:

The court shall award a reasonable attorney’s fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.

The initial question posed by the statute is whether Mr. Galbraith, a dismissed party, may be classified as the “prevailing party”? MacBain v. Bowling, 374 So.2d 75 (Fla. 3d DCA 1979), is directly on point and answers the question in the affirmative. MacBain draws upon those cases which have interpreted Section 713.29, Florida Statutes (1979), which grants reasonable attorney’s fees to the prevailing party in any action brought to enforce a mechanics’ lien. Mac-Bain expressly relies upon Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976), which states:

Where a mechanic’s lien claim is voluntarily or involuntarily dismissed, the party against whom the claim was brought is the “prevailing party” and is entitled to recover attorney’s fees and costs. Id., at 1235.

With Galbraith confirmed as the prevailing party, we turn to the dispositive question: was there a complete absence of a justiciable issue of either law or fact raised by the losing party? Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA), rev. denied, 392 So.2d 1373 (Fla.1980), provides instructive analysis on this point. It holds that the term “complete absence” signifies something more than the mere absence or non-existence of a justiciable issue of fact or law. There must be “a finding of a total or absolute lack of a justiciable issue ... which is tantamount to a finding that the action is frivolous.” Id., at 175. The court restated its holding in this fashion:

On the basis of these definitions, in order to find a “complete absence of a justicia-ble issue of either law or fact” we hold that a trial court must find that the action is so clearly devoid of merit both on the facts and the law as to be completely untenable. Merely losing, either on the pleadings or by summary judgment, is not enough to invoke the operation of the statute. Ibid.

With these principles in mind, we turn to the facts in the case at bar as evidenced by the various documents which were considered by the trial court in reaching its determination. Specifically, we consider the pleadings and the filed deposition of M. A. Galbraith which were expressly relied upon by the trial judge. First, they conclusively demonstrate that Mr. Galbraith had absolutely no responsibility for roadway construction. Indeed, the following colloquy from Mr. Galbraith’s discovery deposition offers a unique insight into the basis of the suit:

Mr. Galbraith: The thought occurs to me that you ought to be deposing our City Engineer instead of me today.
Mr. Simring: (Plaintiff’s counsel) That may be true. To be perfectly honest with you the main purpose of the deposition is to eliminate unnecessary defendants and to find out who is responsible. I have no idea who is responsible for this. I am not familiar with the City of Boca Raton. I know nothing about the State Department of Transportation in Tallahassee, and I don’t know who built that project. And, if anybody is liable, I’d like to get the proper party. (Emphasis supplied.)

In our view, the foregoing is tantamount to an admission that the suit against Mr. Galbraith was begun recklessly, without investigation, and without a good faith belief that Galbraith had any involvement with the construction of N.W. 4th Avenue. In hindsight it is clear that the case against Galbraith had no merit and was frivolous from its inception. As noted by our sister court in Hernandez v. Leiva, 391 So.2d 292, 295 (Fla. 3d DCA 1980), “the Florida Legislature, in exercise of its authority and wisdom, has ... decided to place a pricetag upon such unwarranted litigation.” Moreover, we believe that the Legislature’s choice of the word “shall” in the statute evidenced a purposeful intent to impose a mandatory requirement to award reasonable attorney’s fees after the court made a factual determination that there was a complete absence of a justiciable issue of either law or fact raised by the losing party. Since the record conclusively demonstrates that Mr. Galbraith has satisfied this burden, we reverse the order denying attorney’s fees and remand the cause for further proceedings consistent with this opinion.

MOORE and GLICKSTEIN, JJ., concur.


author: M. DANIEL FUTCH, Jr., Associate Judge.

text:
    TEXACO BOCA DEL MAR, INC. and Leadership Housing, Inc. d/b/a Boca Del Mar Associates, a Florida Corporation, Appellants, v. SENTINEL DEVELOPMENT CORPORATION, a Florida Corporation, and Jundt Associates, Inc., a Florida Corporation, Appellees.
    No. 79-2003.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Edna L. Caruso, Montgomery, Lytal, Re-iter, Denney & Searcy, P. A., West Palm Beach, and Deschler & Reed, Boca Raton, for appellants.
    Kenneth B. Swinger of Kenneth B. Swinger & Associates, Fort Lauderdale, for appellees.
   M. DANIEL FUTCH, Jr., Associate Judge.

Appellant, Texaco Boca Del Mar, appeals from a final judgment, entered upon a jury verdict, awarding $107,400 in damages to the appellee, a real estate broker. Appellant contends there was insufficient evidence to support the judgment. We agree and reverse.

Appellant was a partnership comprised of Texaco and Leadership Housing in a joint venture to develop 2400 acres of land in Boca Raton. Appellant’s property was sold by an open listing whereby any broker or salesman could sell the property and collect a commission of 6%. The custom utilized by appellant was to pay a commission only upon the closing of a sales transaction. The Broker’s first contact with the appellant was in 1974 at which time the Broker inspected appellant’s land and received a price list from him. These price lists were periodically updated to reflect increased costs, changes in financial terms, etc. Parcel No. 73, the property that serves as the subject matter of the present controversy, was listed as a commercial property and subject to change in price and withdrawal from the listing without notice. In 1976, there was some correspondence between the broker and the appellant concerning this property and the possibility of rezoning this property to a residential classification. Subsequently, the broker found Sentinel Development Corporation as a potential purchaser, and Sentinel offered to purchase the property on October 20th, 1976. The offer, however, was contingent upon the property being rezoned to residential. This condition was unacceptable to the appellant and the offer was rejected. Officers of Sentinel testified that the offer was rejected because Texaco disapproved of the zoning contingency even though Texaco was willing to negotiate other terms and conditions aside from the zoning contingency. Between October, 1976 and October, 1977, the Broker kept in contact with both the appellant and Sentinel concerning Parcel 73. During this period of time, the appellant also continued to negotiate with Sentinel with regard to the potential sale of the property. Sentinel eventually presented the appellant with an offer to purchase Parcel 73. The offer somewhat matched appellant’s listing offer, but it also varied in several respects. First, the amount of downpayment payable directly to the appellant was much less than that prescribed by the listing offer. The dates for mortgage interest payments were altered as was the release of mortgage provisions. Sentinel’s offer included a clause which would allow the purchaser to enter upon the land prior to the sale and obtain information for the purpose of securing future financing. Most significantly, Sentinel’s offer was again contingent upon a rezoning of Parcel 73 to residential.

Ultimately, the appellant rejected Sentinel’s offer, which, in conjunction with the appellant’s refusal to pay any brokerage commission to the Broker, precipitated a lawsuit. The Broker contended that it had earned its commission by producing a ready, willing, and able buyer. The parties are and were in disagreement as to the nature of the brokerage contract between them. Appellant’s position was that it is liable to pay a brokerage commission only upon the consummation of a sale. The Broker contends that he is entitled to a commission if he merely produces a “ready, willing and able buyer.” After a jury trial and a judgment in favor of the Broker, this appeal was taken by the appellant.

Appellant urges as error the trial court’s denial of its motion for a directed verdict and its related motions for judgment n. o. v. and new trial. Although appellant propounds several reasons for reversal, we need discuss only one.

Assuming, arguendo, that the Broker established a prima facie case of his entitlement to a commission based upon his mere procurement of a ready, willing and able buyer, we find that there was a lack of substantial competent evidence to support the finding that Sentinel was in fact a ready, willing and able buyer. In order for a person to be a ready, willing and able buyer he must execute a binding contract of sale which contains terms prescribed or acceptable to the seller. Zaydon v. Wilder, 305 So.2d 81 (Fla. 3rd DCA 1974); Abel v. First Federal Savings and Loan Association of Manatee County, 199 So.2d 295 (Fla. 2nd DCA 1967); Wiggins v. Wilson, 55 Fla. 346, 45 So. 1011 (1908). The appellant’s listing offer only included financial terms and conditions. There were many other items of sale which were subject to negotiation and compromise. In fact, Sentinel’s initial offer referred to such additional items (zoning, entry on land, etc.), and it even attempted to vary some of the financial terms and conditions. As previously stated, when there are terms and conditions of sale not expressly made part of a listing offer, but which are instead subject to further negotiations, a prospective purchaser is not a ready, willing and able buyer until there is agreement upon such additional matters between buyer and seller. Mead Corporation v. Mason, 191 So.2d 592 (Fla. 3rd DCA 1966); Leon Realty, Inc. v. Bradwell, 271 So.2d 771 (Fla. 1st DCA 1972). Where there are continued negotiations without final agreement, the broker has not procured a ready, willing and able buyer at terms acceptable to the seller. McAllister Hotel v. Porte, 98 So.2d 781 (Fla.1957).

In a complex real estate transaction of the sort present in the case sub judice, there are often many conditions of sale that are extrinsic to the financial terms of the sale. These additional details often refer to the very basis of the bargain at hand, and no buyer can be considered ready, willing and able until such time as there is a meeting of minds between seller and purchaser in regard to such additional, material details. See, McAllister, supra, and Shuey v. Wolf, 107 So.2d 195 (Fla. 2nd DCA 1958). Furthermore, when an offer is materially different from that contained in a seller’s listing, the offer becomes a counter-offer, and the seller is not liable to a procuring broker if the seller rejects such a counteroffer. Salzer v. Anderson, 238 So.2d 457 (Fla. 3rd DCA 1970); Taylor v. Dorsey, 155 Fla. 67, 19 So.2d 876 (1944). A variance in stated financial terms that is unacceptable to the seller, relieves the seller of the obligation to pay a brokerage commission. C. W. Kistler Co. v. Hotel Martinique, 44 So.2d 288 (Fla.1950); Singer v. Grant, Inc., 151 So.2d 52 (Fla. 3rd DCA 1963); Peterson v. Kilbee, 197 So.2d 318 (Fla. 4th DCA 1967). Such a variance from the seller’s original financial terms occurred in the present case. There can be little doubt that when a prospective buyer’s offer of purchase is based upon a contingency of rezoning, such a buyer is not a ready, willing, and able one. When the seller opts to reject such an offer, he is relieved of the liability to pay a brokerage commission. See, Futura Realty, Inc. v. Kasser, 325 So.2d 71 (Fla. 3rd DCA 1976); Wilder v. Burton, 317 So.2d 776 (Fla. 3rd DCA 1975).

Sentinel’s response to appellant’s listing offer constituted a counter-offer. Clearly, Sentinel did not accept the appellant’s initial offer in toto. Moreover, there were many other topics of sale that needed to be discussed and settled between Sentinel and the appellant. These parties were never able to conclude their negotiations over these matters with a mutual agreement. Given such a framework of reference, Sentinel was never a ready, willing and able buyer, and consequently, the Broker was not entitled to a commission for the procurement for such a reluctant purchaser.

Since the judgment in favor of the Broker was necessarily predicated upon a jury finding that Sentinel was a ready, willing and able buyer, we must reverse that judgment.

REVERSED.

DOWNEY and GLICKSTEIN, JJ., concur.

      . Leadership Housing was later replaced as a partner and the new partnership consisted of Texaco and Boca Del Mar.

      . The appellant was willing to vary some of the financial terms of its listing offer to accommodate Sentinel, but the appellant adamantly refused to accept the zoning contingency.


text:
    Allan E. ROKAW, Appellant, v. Irene ROKAW, Appellee.
    No. 79-2164.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Charles J. Dorfman of Gilbert, Dorfman & Orr, P.A., Fort Pierce, for appellant.
    Emory C. Teel, III of Fee, Koblegard & Teel, P.A., Fort Pierce, for appellee.
   PER CURIAM.

Affirmed on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980) and Thompson v. Thompson, 402 So.2d 1220 (Fla. 5th DCA 1981).

ANSTEAD, HERSEY and HURLEY, JJ., concur.


text:
    Robert CAPERS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 80-458.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Richard L. Jorandby, Public Defender, and Charles D. Peters and Jon May, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassée, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED upon authority of State v. Benitez, 395 So.2d 514 (Fla.1981); State v. Jordan, 402 So.2d 1153 (Fla.1981); and State v. Werner, 402 So.2d 386 (Fla.1981).

DOWNEY, MOORE and HERSEY, JJ., concur.


author: LETTS, Chief Justice.

text:
    STATE of Florida, Appellant, v. Herbert WRIGHT, Appellee.
    No. 80-1275.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.

      David H. Bludworth, State Atty. and Maurice J. Hall, Asst. State Atty., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   LETTS, Chief Justice.

The defendant was charged with several counts of armed robbery and the state appeals the trial court’s granting of the defendant’s motion to suppress. We reverse.

The defendant, already on parole for robbery, was a suspect in another robbery of a bank in Dothan, Alabama. Following up on leads on this Dothan crime, a sergeant in the Dothan Police Department came to Ma-rianna, Florida and cooperated with two local officers in an attempt to locate the defendant. To help, the police produced a description and a composite sketch (or xerox of a mug shot) of the suspect and the detectives took it to various locations in search of anyone who could identify the defendant. Subsequently, they learned that a man resembling the defendant had bought a black Mercury sedan from a local automobile dealership. Several days later the police received a call that the defendant was at that moment at the automobile dealership and upon arriving there saw the defendant behind the steering wheel of a black Mercury sedan. Thereupon the police told the defendant to step out of the car, and arrested him on suspicion of the Dothan bank robbery.

There also was a passenger in the defendant’s car and police asked him if he had a driver’s license so that he could drive the defendant’s automobile to the police station. The passenger, however, did not have a driver’s license.

While this conversation was taking place the owner of the automobile dealership joined the group and told the police he was repossessing the car from the defendant because the check the defendant had given him in payment therefor was no good. The dealer explained that the car was on consignment to him to sell, that he was retaking possession and he then requested that the police move the car into a stall on the lot. Pursuant to this request the police drove the Mercury into the stall and in so doing discovered in the Mercury, a bag in plain view stuffed with money, the bag being labeled with the words “Bank of Miami.” This bag was seized by the police and the car then searched, producing a .38 caliber firearm.

Also seized at the same time was a key to a Holiday Inn room which the two occupants of the black Mercury sedan indicated did not belong to them but belonged to one Michael Thompson whom they had met in a bar. The police then took the key and went to the motel where motel employees discovered another firearm in an open drawer, which the police then went to the room and seized.

The court granted the suppression of the contraband seized at both locations using the following language:

1. The seizure of the gun and money bag from the Defendant’s car at the Pfordy [Pforte] Motor Company cannot be justified under any exception to the warrant requirements. The Court specifically finds that neither item of evidence was in plain view. Additionally, there were no exigent circumstances precluding a warrant from being obtained.
2. None of the evidence seized from the Defendants’ Holiday Inn Motel room can be justified under any exceptions to the warrant requirements. Under the circumstances as they existed the Defendants cannot be said to have abandoned the room and there were no exigent circumstances to justify a warrantless search.

We disagree with the judge on both of his findings. In our view the seizure of the bank bag in the automobile was justified under the plain-view doctrine. The three requirements to be met under the plain-view doctrine are, (1) that the police must observe the evidence from plain sight without the benefit of a search, (2) the police must have a legal right to be where they are when they make the plain sight observation, and (3) the police must have probable cause to believe that the evidence seen constitutes contraband. See Pomerantz v. State, 372 So.2d 104 (Fla. 3d DCA 1979). We believe all of these requirements were satisfied here.

Certainly the police were clearly conducting a lawful investigation when they went to the local automobile dealer and there was nothing reprehensible in them asking the defendant to step out of the car and arresting him, nor is it argued on appeal that there was. The sole question is, did the police then have the right to get in it and drive it to the stall? We think they did. The police offered the passenger the opportunity to drive the car but he could produce no driver’s license. The police were then asked by the dealership’s owner to move the car to a particular location because he was repossessing it by reason of the defendant having given him a bad check. We see nothing wrong with this either. The defendant argues that the police “engineered” the invitation from the dealer to be helpful and move the car when it would have made much more sense for the dealer to move it himself. However there is no clear reference to the record in support of that argument. Suppose the police had actually said: “May we move the car Mr. Dealer?” and the dealer said: “Yes, please do.” We cannot see that such a dialogue would vitiate the police entry into the vehicle under the facts of this case. The polite offer of assistance by police, although not necessary to the performance of their duties, is not to be struck down just because their motives are not altogether altruistic. See Carter v. State, 370 So.2d 1181 (Fla. 4th DCA 1979).

Thereafter when the policeman got into the Mercury he saw in plain view a bank bag stuffed with money with “Bank of Miami” stamped on it, and from all the surrounding circumstances it certainly would create a reasonable inference that a bag stamped with the name of a bank on the outside, stuffed with money and in the possession of a man sought for bank robbery, was the fruit of a crime. We believe probable cause existed.

A short time later the automobile dealer acquiesced to the police request that they search the vehicle. It would certainly appear that he had apparent authority to grant that request in the light of the surrounding circumstances relative to repossession. It is also argued by the defense that the statement by the dealer about his right to possession and control and the dealer’s reference to bad checks did not give him the actual possessory right incident to consenting to a search. In support the defendant cites Sheff v. State, 329 So.2d 270 (Fla. 1976) where the suspicions of a cleaning maid prompted the management of a motel to call the police and admit them to the defendant’s rented room to search his luggage. In striking down that search the supreme court pointed out that a guest’s implied consent to admission of hotel employees to his room, is only for the purpose of their customary duties which does not include the power to authorize a police search. We agree with that, but believe this case is different. The dealer was not giving the police permission to search the defendant’s car, he was ostensibly giving them consent to search a car which he claimed the right to possess, or repossess under consignment, to the exclusion of the defendant. We simply cannot expect the police to conduct an on-the-spot title search as to who owns property. The dealer stated that he was entitled to the possession and control of the car and there is no refutation of that statement in the record. See State v. Drake, 343 So.2d 1336 (Fla. 1st DCA 1977).

Accordingly, the police had the right to enter the car. Upon doing so they plain-viewed the bank bag which in turn gave them the probable cause for the search that revealed the .38 caliber firearm.

As to the subsequent search of the motel room: the police, having discovered the key in the automobile, asked the defendant and his passenger if it belonged to them. The answer was that it was not their key but that it belonged to one Michael Thompson, a person they had met at a bar. This amounted to a denial of any possessory interest of their own since they offered no explanation as to why they had it. We, therefore, do not believe that they had standing to contest a search. As we said in State v. Muzevsky, 388 So.2d 21 (Fla. 4th DCA 1980), “to have standing to attack the illegality óf a search and seizure the person must show that he had legitimate expectation of privacy in the area searched.” There was no showing by the defendant or his passenger that either one of them had any expectation of privacy in the motel room; on the contrary, they denied it. It is not tenable to deny ownership of contraband, or personal property that leads to the discovery of contraband, on the one hand and then later argue standing to contest a search and seizure on the other.

For all of the foregoing reasons we believe that the ruling of the trial judge was incorrect and this cause is, therefore, reversed and remanded for further proceedings in conformance herewith.

REVERSED AND REMANDED.

ANSTEAD, J., and STONE, BARRY J., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Anthony John DAMORE, Appellee.
    No. 80-1638.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Jim Smith, Atty. Gen., Tallahassee and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Alan S. Ross of Weiner, Robbins, Tunkey & Ross, P.A., Miami, for appellee.
   PER CURIAM.

Reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla. 1981) and remanded for further proceedings.

ANSTEAD, MOORE and HURLEY, JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    David FRY, Jr., Petitioner, v. Don MORELAND, Sheriff, Marion County, Florida, Respondent.
    No. 81-843.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 1981.
    Robert E. Pierce, Public Defender, and Bruce L. Kotler, Asst. Public Defender, Ocala, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, Gordon G. Oldham, Jr., State Atty., Richard W. Prospect, Asst. Atty. Gen. and James T. Reich, Asst. State Atty., Ocala, for respondent.
   FRANK D. UPCHURCH, Jr., Judge.

David Fry, Jr., petitions this court for a writ of habeas corpus on the ground that his competency hearing was not held within the time limitations of Florida Rule of Criminal Procedure 3.212(b)(4). Rule 3.212(b)(4) provides in part as follows:

The court shall hold a hearing within 30 days of the receipt of any such report from the administrator of the facility on the issues raised thereby.

Petitioner was arrested on October 21, 1980. On March 10, 1981, petitioner was found incompetent to stand trial and was committed to Florida State Hospital. The petition alleges that on May 21, 1981, the Marion County Circuit Court received a report from C. W. Montgomery, Director, General Psychiatric Unit at Florida State Hospital, stating that, in his opinion, petitioner was competent to stand trial. On June 29,1981, thirty-nine days after receipt of this letter, the court held a competency hearing.

Petitioner’s contention that this hearing was untimely is without merit. Rule 3.212(b)(4) requires the court to hold a hearing within thirty days of receipt of a report from the administrator. The letter purportedly received by the court on May 21, 1981, was from C. W. Montgomery, a director of the General Psychiatric Unit at Florida State Hospital. The report from the administrator of Florida State Hospital, Robert B. Williams, is dated June 9, 1981, and was filed with the clerk on June 15, 1981. There are no allegations that Montgomery was acting on behalf of the administrator. Thus, as the report from the administrator was received by the court on June 15, 1981, the competency hearing on June 29, 1981, was well within the thirty-day time period established by Rule 3.212. Petitioner is therefore not entitled to release and the writ is hereby

DENIED.

COBB and COWART, JJ., concur.

      . This letter has not been included in the record.


author: SHARP, Judge.

text:
    Willie Howard DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 81-237.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 1981.
    James B. Gibson, Public Defender and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Davis appeals from a final order announced in court after a jury trial. The court adjudicated him guilty of burglary of a dwelling with the intent to commit a sexual battery and an assault and four sexual batteries. Davis argues that the multiple adjudications violate the Double Jeopardy provisions of the United States Constitution and the Florida Constitution. After the Notice of Appeal was filed, the trial court “rendered” its judgment which adjudicated Davis guilty and sentenced him for one sexual battery and burglary of a dwelling with an assault. We ordered that the record be supplemented with the written judgment, and we shall treat it as the judgment being appealed in this cause. The record sustains the written judgment and accordingly it is

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      .§§ 810.02(1), 810.02(2)(a), Fla.Stat. (1979).

      . §§ 794.01 l(4)(b), 794.011(5), Fla.Stat. (1979).

      . § 794.01 l(4)(b), Fla.Stat. (1979).

      . §§ 810.02(1), 810.02(2)(a), Fla.Stat. (1979).

      . See Williams v. State, 324 So.2d 74 (Fla. 1975).


author: DAUKSCH, Chief Judge.

text:
    Stanley BOOZER, Appellant, v. STATE of Florida, Appellee.
    No. 80-1426.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Chief Judge.

The appellant appeals from a sentence entered upon a jury verdict of guilty for robbery with a firearm. §§ 812.13(2)(b) and 775.087(2), Fla.Stat. (1979). This sentence ordered the appellant to be committed to the Department of Offender Rehabilitation for a term of thirty (30) years, fifteen (15) years to be served in prison and fifteen (15) years of probation. Such a split sentence is illegal. Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981).

The trial court also erred in sentencing the appellant pursuant to the provisions of section 775.087(2), Florida Statutes (1979). Although the robbery involved a co-defendant with a gun, there was no evidence that appellant ever had possession or used this firearm during the commission of the offense. Actual possession of a firearm is required to bring a defendant within the purview of section 775.087. Earnest v. State, 351 So.2d 957 (Fla.1977); Johnson v. State, 399 So.2d 108 (Fla. 1st DCA 1981); [1981 F.L.W. 1273]; McGowan v. State, 362 So.2d 335 (Fla. 3d DCA 1978), overruled on other grounds, Freeman v. State, 382 So.2d 1307 (Fla. 3d DCA 1980). The provisions of section 775.087 do not apply to this appellant.

The sentence is vacated and the cause remanded.

FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


text:
    SPACE DISTRIBUTORS, INC., a Florida corporation, d/b/a Tropic Air, Appellant, v. FLAGSHIP BANK OF MELBOURNE, N.A., and Kenneth R. Wooldridge, Appellees.
    No. 80-1386.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 1981.

      Gregory M. Wilson of Taylor & Wilson, Orlando, for appellant.
    Armisted W. Ellis, Jr. of Nohrr, Nohrr, Brushwood & Howze, P. A., Melbourne, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a final summary judgment in an action to recover for forged checks cashed by Flagship.

Tropic Air sued Kenneth Wooldridge, its bookkeeper, and Flagship Bank alleging that they were jointly and severally liable for checks totaling $158,251.49 which were forged by Wooldridge and cashed by Flagship. The checks were written over a two-year period from June 11, 1976 to November 13, 1978. Flagship was first given notice on January 23, 1979, after Tropic Air discovered the forgery scheme of Wool-dridge.

On March, 31, 1980, the court entered a final default judgment against Wooldridge and dismissed the complaint against Flagship for all checks written prior to one year from the notice given Flagship of the forged signatures. The dismissal was based on the notice requirement of section 674.-406(4), Florida Statutes (1979). As to the rest of the checks, the court held that the complaint stated a cause of action for negligence against Flagship. Flagship subsequently moved for summary judgment claiming that the bank used due care in honoring the checks and that Tropic Air’s failure to examine its monthly statements and to verify the signatures on its checks was the proximate cause of its loss. On November 12, 1980, the court entered final summary judgment for Flagship. Tropic Air appeals from that judgment. We REVERSE.

Section 674.406(1), Florida Statutes (1979), imposes the following duties upon a bank customer:

When a bank sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries or holds the statement and items pursuant to a request or instructions of its customer or otherwise in a reasonable manner makes the statement and items available to the customer, the customer must exercise reasonable care and promptness to examine the statement and items to discover his unauthorized signature or any alteration on an item and must notify the bank promptly after discovery thereof.

The depositions reflect that Wool-dridge was responsible for writing the checks and for reconciling the bank statements. The President, Vice-President and the Secretary of Tropic Air all conceded that the account statements had been received on a monthly basis but that they had not examined any checks to determine the authenticity of signatures during the twenty-six months the checks were being cashed. This evidence is sufficient to warrant the conclusion that Tropic Air totally failed to exercise reasonable care by promptly examining its cancelled checks as required by section 674.406(1). See Industrial Systems of Huntsville, Inc. v. American Nat. Bank of Huntsville, 376 So.2d 742 (Ala.Civ.App. 1979), Zenith Syndicate, Inc. v. Marine Midland Bank, 23 U.C.C.Rep. 1267 (Civ.Ct.N.Y. 1978), and Kiernan v. Union Bank, 18 U.C.C.Rep. 1026, 55 Cal.App.3d 111, 127 Cal.Rptr. 441 (1976), which are factually identical to the present case.

Section 674.406(2) defines the effect of the failure of the customer to comply with subsection (1):

If the bank establishes that the customer failed with respect to an item to comply with the duties imposed on the customer by subsection (1) the customer is precluded from asserting against the bank.
(b) An unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank after the first item and statement was available to the customer for a reasonable period not exceeding fourteen calendar days and before the bank receives notification from the customer of any such unauthorized signature or alteration. (Emphasis supplied.)

This provision applies only if all the forgeries were perpetrated by the same wrongdoer on items paid after the first item and statement were available to the customer for a period not to exceed fourteen days and before the bank receives notification. There were no allegations that anyone other than Wooldridge was responsible for the forged checks.

The first item was written June 6, 1976; thus, it would appear that Tropic Air because of its failure to examine is precluded from asserting any liability against Flagship. However, under subsection 674.-406(3), Tropic Air would not be precluded from asserting liability against Flagship if it could establish that the bank failed to exercise ordinary care in paying the items. Indiana Nat. Corp. v. FACO, Inc., 400 N.E.2d 202 (Ind.App.1980); Coleman v. Brotherhood State Bank, 3 Kan.App.2d 162, 592 P.2d 103 (1979); Industrial Systems of Huntsville, Inc. v. American Nat. Bank, 376 So.2d 742 (Ala.Civ.App.1979); Parsons Travel, Inc. v. Hoag, 18 Wash.App. 588, 570 P.2d 445 (1977); Exchange Bank & Trust Co. v. Kidwell Constr. Co., 463 S.W.2d 465 (Civ.App.Tex.1971). Whether Flagship failed to exercise ordinary care in paying the items is a question of fact. Coleman v. Brotherhood State Bank; Exchange Bank & Trust Co. v. Kidwell Constr. Co. As the cause involved the resolution of an issue of fact, the entry of summary judgment was improper unless the claims were absolutely barred by section 674.406(4).

Section 674.406(4) provides that:

Without regard to care or lack of care of either the customer or the bank a customer who does not within one year from the time the statement and items are made available to the customer (subsection (1)) discover and report his unauthorized signature or any alteration on the face or back of the item or does not within three years from that time discover and report any unauthorized indorsement is precluded from asserting against the bank such unauthorized signature or indorsement or such alteration.

The one-year period of limitation in subsection (4) is not merely a statute of limitations but is a rule of substantive law absolutely barring a customer’s right to make a claim against the bank without regard to the care or lack of care of either the customer or the bank. Brighton, Inc. v. Colonial First Nat. Bank, 176 N.J.Super. 101, 422 A.2d 433 (1980); Gennone v. Peoples Nat. Bank & Trust Co., 9 U.C.C.Rep. 707, 51 Pa.D. & C.2d 529 (1971). The one-year limitation has been held to attach to each separate check in a series of forged or altered cheeks and thus a new one-year period begins to run with each subsequent check when it is made available to the customer. Sun 'N Sand Inc. v. United California Bank, 21 Cal.3d 671, 148 Cal.Rptr. 329, 582 P.2d 920 (1978); Kiernan v. Union Bank, 18 U.C.C.Rep. 1026, 55 Cal.App.3d 111, 127 Cal.Rptr. 441 (1976); Neo-Tech Systems, Inc. v. Provident Bank, 43 Ohio Misc. 31, 335 N.E.2d 395 (1974).

As was noted above, the checks were forged and cashed from June 11, 1976 to November 13, 1978. Tropic Air notified Flagship of the forgeries on January 23, 1979. Thus, under section 674.406(4), Tropic Air is not precluded from asserting unauthorized signatures on checks for which the check and statement were furnished after January 23,1978. As to these checks, Tropic Air was entitled to establish the lack of ordinary care on the part of Flagship.

The court below, however, erroneously entered final summary judgment as to these checks based in part on George Whalley Co. v. National City Bank of Cleveland, 55 Ohio App.2d 205, 380 N.E.2d 742 (1977). In George Whalley, the company bookkeeper had cashed a number of checks drawn on the customer’s account. The bank established that the customer failed to exercise reasonable care in examining the statement and thus claimed that the preclusion under section 4-406(2)(b) was applicable. The customer countered that the bank was negligent in paying the items. The court ruled that the “lack of ordinary care” of 4-406(3) refers back to the first item and statement in (2)(b) and thus the question of negligence is limited to the bank’s actions in cashing the first item.

Based on George Whalley, the court below held that only Flagship’s negligence in cashing the first forged item was relevant and as the claim for that check was barred because of the notice requirements of section 674.406(4), Flagship was entitled to summary judgment for all subsequent checks.

The trial court’s reliance on George Whalley is misplaced. The U.C.C. provision 4-406(3) as adopted by Ohio differs materially from the provision as adopted by Florida. The U.C.C. § 4-406(3) and the Florida provision provides that “the preclusion . .. does not apply if the customer establishes lack of ordinary care on the part of the bank in paying the item(s).” (Emphasis added.) The Ohio provision, however, reads the same except that it refers to “lack of ordinary care on the part of the bank in paying the item.” (Emphasis added.) The use of the singular “item” warranted the court’s interpretation that the negligence of section 4-406(3) refers back only to the first item. As was noted above, the U.C.C. and the Florida provision use the singular and plural “item(s)” and thus the construction that the negligence in 4-406(3) refers only to the first item is not warranted. In jurisdictions where the U.C.C. provision employing the word “item(s)” has been adopted, the customer has been permitted to establish the negligence of the bank in paying subsequent checks even though the claim as to the initial forged check was barred by the time limitation of 4-406(4). See, e. g., Indiana National Corp. v. FACO, Inc., 400 N.E.2d 202 (Ind.App.1980) and Exchange Bank and Trust Co. v. Kidwell Constr. Co., 463 S.W.2d 465 (Civ.App.Tex.1971).

Here, Tropic Air should have been permitted to establish the lack of ordinary care, if any, on the part of Flagship in paying subsequent checks not barred by the notice requirement of section 674.406(4) even though the claim as to the initial forged check was barred.

We therefore REVERSE the summary judgment and REMAND for trial on the issue of the bank’s negligence, if any.

COBB and SHARP, JJ., concur.

      . Section 674.406(3) provides as follows:
      The preclusion under subsection (2) does not apply if the customer establishes lack of ordinary care on the part of the bank in paying the item(s).


author: PER CURIAM. COWART, Judge,

text:
    Sam E. MURRELL, Jr. and Robert G. Murrell, Appellants, v. John T. ROBERTSON and Thelma B. Robertson, Appellees.
    No. 80-1262.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 1981.
    Fred Langford of Sam E. Murrell & Sons, Orlando, for appellants.
    Jerry T. Lockett of Duggan & Lockett, P. A., Leesburg, for appellees.
   PER CURIAM.

AFFIRMED.

DAUKSCH, C. J., and ORFINGER, J., concur.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

Appellants, as buyers, and appellees, as sellers, entered into a contract for the sale and purchase of 30.1 acres of land for $85,-500 on terms of $24,795 down and the balance of $60,705, payable in eight equal annual installments of $7,588.12 each plus interest, to be secured by a purchase money mortgage. The contract contained the following special clause:

Seller agrees to release clause in the purchase money mortgage for the property to be released upon payment of $4,000 per acre on the 15.1 acres fronting on Highway 27, and $2,500 per acre on the east 15 acres.

Before this transaction was closed, a dispute arose. The sellers said they would not close unless the buyers agreed that the release clause meant that the 15.1 acre highway frontage parcel would be released only as a single unit upon the payment of $60,-400 and the east 15 acre parcel would be released only as a single unit upon the payment of $37,000. The buyers brought suit for specific performance. Both parties moved for summary júdgment, each contending that their opponent’s construction of the release clause would be absurd under the circumstances. The trial judge entered an order requiring the buyers to either agree that the release clause to be inserted in the purchase money mortgage would be written to read in accordance with the sellers’ contention, in which event summary judgment would be entered in favor of the buyers, or in the alternative, to have summary judgment entered in favor of the sellers and specific performance denied. The buyers, under protest, elected to close with the mortgage containing a release clause in conformity with the court’s order and the sellers’ contention. Final summary judgment was entered accordingly and this appeal resulted. I would give the buyers relief. First, because the sales contract itself was unambiguous, that is, it clearly provided that the purchase money mortgage contain the quoted clause, the buyers were entitled to specific performance without being forced to agree to language that modified the release provision to be placed in the mortgage. While the release clause itself is ambiguous and a possible case or controversy involving its meaning is easily foreseeable, that potential controversy was not ripe for judicial determination, was not properly presented and was in fact not made. Second, if and when the buyers ever demanded a release pursuant to this clause and a present justiciable controversy warranted adjudication of the issue, a proper interpretation of the release clause should be in favor of the buyers because the release provision contained in the contract was expressed in terms of dollars per acre rather than a total sum per tract.


text:
    STATE of Florida, Appellant, v. Edward John YUNKER, Appellee.
    No. 80-1202.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 1981.

      Jim Smith, Atty. Gen., Tallahassee and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellant.
    James Gibson, Public Defender, and Lynda Campbell, Asst. Public Defender, Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from an order granting a motion to suppress evidence. The effect of the order is to exclude at trial evidence relating to illegal drugs seized from the defendant appellee. The order does not state the basis for the suppression, but the defendant’s motion alleged the drugs were seized incident to an illegal misdemeanor arrest for an offense not committed in the presence of the arresting officer. § 901.15(1), Fla.Stat.; Kirby v. State, 217 So.2d 619 (Fla. 4th DCA 1969). The fruits of a search incident to an unlawful arrest are to be excluded from evidence at trial. Sanders v. State, 385 So.2d 735 (Fla. 2d DCA 1980).

The crime of trespass after warning is in section 810.08(1), Florida Statutes (1977). The facts alleged in defendant’s motion to suppress were:

On July 1, 1980, Defendant was arrested by Officer John Bowden on a charge of trespass after warning at the Angebilt Hotel. Officer Bowden based his arrest on information supplied to him by Mr. Albert Shaw, a security guard at the Angebilt Hotel. The Trespass warning involved was issued on June 18, 1980. Officer Bowden testified under oath at deposition that he had specifically asked Mr. Shaw if the Defendant had been allowed back into the hotel between June 18, 1980, and July 1, 1980, and that Mr. Shaw had said no. Mr. Shaw testified under oath at deposition that he (Shaw) had allowed the Defendant to re-enter the hotel on several occasions between the trespass warning on June 18, 1980, and July 1,1980. Further, Shaw testified at deposition that he (Shaw) had told the Defendant not to enter the hotel lobby or the Red Fox Lounge. Defendant was arrested by Officer Bowden as Defendant exited the men’s room which is neither in the lobby nor in the Red Fox Lounge. Officer Bowden testified at deposition that if a person had been allowed back in the premises since the trespass warning “that he would assume that the trespass warning would be null.”

As we read the record and the arguments in this case, the basis upon which the suppression order was granted by the trial court was that an essential element of the offense of trespass — i. e., the warning — did not occur in the presence of the officer, hence the warrantless misdemeanor arrest and consequent search incident thereto were illegal. See Brown v. State, 62 So.2d 348 (Fla.1952). A copy of the trespass warning issued on June 18,1980, was shown to the arresting officer at the time of the arrest on July 1, 1980, and he was told that it was still in effect — as, in fact, it was, since the subsequent conditional permission clearly had been revoked. The factual assertion of appellee in his brief that the arresting officer was informed that the warning had been withdrawn subsequent to June 18, 1980, is contrary to the record. The security officer at the Angebilt Hotel told the investigating officer immediately prior to arrest that the warning had not been withdrawn.

The primary argument of appellee is that the warning did not issue in the officer’s presence. This is true. But it is irrelevant. As observed by the Florida Supreme Court in Spicy v. City of Miami, 280 So.2d 419 (Fla.1973), an arresting officer must have a “substantial reason” at the time of a warrantless misdemeanor arrest to believe from his observation and evidence at the point of arrest that the person “was then and there committing a misdemeanor in his presence.” [Emphasis added]. In the instant case, the trespass by Yunker was “then and there” committed on July 1, 1980, in the presence of the officer, not at the time the warning was issued on June 18,1980. The officer had “substantial reason” to believe that a prior warning had been issued by the custodian of the premises. It is no more necessary that the officer be present at the time of the original warning than it would be for an officer to be present at the time of a real estate closing in order to subsequently arrest a burglar on the premises of the owner-purchaser. For these reasons, we reverse the trial court’s order suppressing evidence.

REVERSED.

DAUKSCH, C. J., and COBB and SHARP, JJ., concur.

      . Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.

      . Even if the trespass warning had in fact been revoked, the arresting officer did not know this, and in fact was told quite the contrary. In considering the legality of an arrest for a misdemeanor, the question is whether the officer had substantial reason to believe a crime was being committed — not whether one was actually being committed. City of Miami v. Albro, 120 So.2d 23 (Fla. 3d DCA 1960).


text:
    In the Interest of K. M. S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 80-1081.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 1981.
    James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

This appeal from an adjudication of delinquency for petit theft and resisting a merchant questions whether the order denying the motion to dismiss count II (resisting a merchant) of the juvenile petition was in error.

Section 812.015(6), Florida Statutes (1979), under which appellant was charged, includes as a material element of resisting a merchant the requirement that the defendant is subsequently found to be guilty of theft of the subject merchandise. Count II failed to include this element. Without this element, count II failed to charge a crime and therefore the motion to dismiss should have been granted. State v. Dye, 346 So.2d 538 (Fla.1977); Smith v. State, 75 Fla. 468, 78 So. 530 (1918).

The state contends that because appellant moved to dismiss based on the missing element, she therefore knew about it and could not be embarrassed in the preparation of her defense. This argument is frivolous. To so hold would mean that any time a person attacked the sufficiency of a charging document, even though the document was in fact defective, he could not appeal this point because knowing of the defect, he could not be embarrassed in his defense. The state’s reliance on Tracey v. State, 130 So.2d 605 (Fla.1961) and Lucas v. State, 376 So.2d 1149 (Fla.1979) is also misplaced. In Tracey, the defendant failed to assert the defect in the information in his motion to quash, failed to assign it as error and failed to argue the issue in his brief and thus was deemed to have waived the defect. Lucas did not involve a defective charging document but rather dealt with the use of contemporaneous convictions as an aggravating circumstance in sentencing.

The adjudication of delinquency based on count II of the juvenile petition is hereby vacated.

DAUKSCH, C. J., and SHARP, J., concur.

      . Section 812.015(6) provides as follows:
      An individual who resists the reasonable effort of a peace officer, merchant, or merchant’s employee to recover merchandise which the peace officer, merchant, or merchant’s employee had probable cause to believe the individual had concealed or removed from its place of display or elsewhere and is subsequently found to be guilty of theft of the subject merchandise shall be guilty of a misdemeanor of the first degree, punishable as provided in s.775.082, s.775.-083, or s.775.084, unless the individual did not know, or have reason to know, that the person seeking to recover the merchandise was a peace officer, merchant, or merchant’s employee. (Emphasis added.)


author: DAUKSCH, Chief Judge. SHARP, Judge,

text:
    In re ESTATE OF Isaac MOSLEY, Deceased. Annie MOSLEY, Appellant, v. Leonard THOMAS, Appellee.
    No. 80-1016.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 1981.

      Kenneth Sills, Central Florida Legal Services, Inc., Daytona Beach, for appellant.
    Michael S. May of Martin, Stanley, May & Thomas, P. A., Deland, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from an order denying summary administration of an estate. It is alleged in the petition that Isaac Mosley died in 1924 leaving a wife and various children and owning two pieces of real estate. Because there is no showing in the record how the properties were held, that is whether solely or as a tenancy by the entir-eties; and because at least one of the properties was homestead and not to be included in this type of proceeding, we can make no meaningful resolution of the matters raised on appeal. We cannot at this time state any opinion as to the correctness of the order on appeal as far as it pertains to the multiple estate proceedings because the record was not made below to sufficiently establish the status of the title to the property at the time of death of Isaac Mosley and at present.

Therefore we affirm that portion of the order appealed which denies summary administration, decline ruling on the remainder of that order without prejudice to the appellant to properly petition the court as the law requires.

AFFIRMED.

COBB, J., concurs.

SHARP, J., concurs specially with opinion.

SHARP, Judge,

concurring specially.

I concur with the majority opinion because appellant did not provide formal notice pursuant to section 735.209(2), Florida Statutes (1979) and Florida Rule of Probate and Guardianship Procedure 5.040(a). The better approach would have been to petition the court for a determination of beneficiaries in an adversary proceeding pursuant to section 733.105(3), Florida Statutes (1979), and Florida Rule of Probate and Guardianship Procedure 5.025(a)(1) and (bXl). In a proceeding to determine beneficiaries the petitioner or personal representative must make a diligent search and inquiry to ascertain the identity and location of all the heirs and the nature of their respective interests in the estate. § 733.105(1), Fla. Stat. (1979). This type of action also requires formal notice to all interested parties and is governed by the Florida Rules of Civil Procedure as well as the Florida Evidence Code. Fla.R.P.&G.P. 5.040(a), 5.080, and 5.170.

One of the basic problems in this case is the determination of homestead status of the real property. This issue may be decided in either type of procedure. Although homestead property is not property of the estate generally, Florida Rule of Probate and Guardianship Procedure 5.340(a) provides that homestead real property shall be included in the inventory of the property of the estate. Section 735.203(2)(b), Florida Statutes (1979), also requires that the petition for summary administration contain a complete list of the assets of the estate, including those assets claimed to be exempt. Homestead issues may be raised by petition in administration proceedings. See The Florida Bar, Basic Practice Under Florida Probate Code § 19.14 (2d ed. 1981). The Probate Code provides that the circuit court, which now has probate jurisdiction, may determine all issues concerning claims or matters not requiring trial by jury. §§ 731.201(6), 733.705(5), Fla.Stat. (1979). Several recent cases indicate that a probate court may determine factual issues regarding homestead. See Burdick v. Burdick, 399 So.2d 410 (Fla. 3d DCA 1981); In re Estate of Johnson, 397 So.2d 970 (Fla. 4th DCA 1981); In re Estate of Yanowsky, 384 So.2d 1297 (Fla. 2d DCA 1980).


author: BOARDMAN, Acting Chief Judge.

text:
    Ponnuswamy NATARAJAN, Appellant, v. Paris HORN, Appellee.
    No. 80-1979.
    District Court of Appeal of Florida, Second District.
    Aug. 26, 1981.
    L. Norman Vaughan-Birch of Kirk, Pinkerton, Savary, Carr & Strode, Sarasota, for appellant.
    Robert M. Johnson, Sarasota, for appel-lee.
   BOARDMAN, Acting Chief Judge.

Ponnuswamy Natarajan, plaintiff below, appeals a final judgment granting a directed verdict in favor of appellee/defendant Paris Horn in appellant’s action seeking reformation or rescission of an executed contract between the parties whereby appellee sold appellant a parcel of real estate and the residential structure thereon. Appellant also challenges the trial court’s award of attorney’s fees to appellee. Finding no merit to the substantive issues raised by appellant, we affirm the directed verdict, but we reverse the award of attorney’s fees.

Appellee made her request for fees on the basis of section 57.105, Florida Statutes (1979), which mandates the award of attorney’s fees to the prevailing party if the court finds a complete absence of a justicia-ble issue of either of law or fact raised by the losing party. The trial court found, and properly so, that an award of attorney’s fees pursuant to this statute was not justified under the facts and circumstances of this case. However, the trial court nevertheless awarded fees as requested, predicating its decision on certain language in the contract between the parties. This, we hold, was error.

The only clause in the contract that concerns legal fees provides: “Any party failing to comply with the terms of this contract will pay all expenses, including a reasonable Attorney’s fee, incurred by the other party to this contract as a result of such failure.” Appellee is not entitled to fees under this clause. There is no contention that appellant failed to comply with any term of the contract. Moreover, this action was not brought to enforce the contract or any provision thereof, but rather to rescind or reform the contract. Thus this action is completely outside the terms of the contract.

Accordingly, the portion of the final judgment awarding appellant nothing on his claim against appellee is affirmed, but the award of attorney’s fees to appellee is stricken.

GRIMES and RYDER, JJ., concur.