author: ADKINS, Justice.

text:
    Carmine Charles Robert FALCO, Appellant, v. STATE of Florida, Appellee.
    No. 59538.
    Supreme Court of Florida.
    Dec. 17, 1981.

      Paul R. Lipton of Leonard Robbins and Paul R. Lipton, P. A., North Miami Beach, for appellant.
    Jim Smith, Atty. Gen. and Steven L. Bo-lotin, Asst. Atty. Gen., Miami, for appellee.
   ADKINS, Justice.

This is an appeal from the Circuit Court of Dade County having been transferred to this Court from the Third District Court of Appeal. It involves a challenge to the constitutionality of Florida’s manslaughter statute, section 782.07, Florida Statutes (1979), which appellant contends is vague and ambiguous when applied to the facts of this case, and, serves to deny him equal protection of the laws. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

The facts of the case are uncontroverted. A youth, Richard Brush, Jr., entered appellant’s home from a side bathroom window without the consent of appellant and in the course of the commission of a burglary. (The day before his entry, appellant’s home had been burglarized or had been attempted to be burglarized; and, indeed had been broken into and reported to the police a number of times in the immediate past.)

Brush had already illegally entered appellant’s bathroom and was opening the bathroom door to move into the living room, when he was mortally wounded by a bullet from a .22 caliber rifle positioned on a chair in the living room. No one was present at the time of Brush’s entry. To activate the gun, it would have been necessary to have entered into the residence in the same manner as did Brush and to thereafter move from one interior room to another. The rifle was not attached to any exterior door or window, nor to any main entry into appellant’s home, and was so aimed that the bullet would enter the bathroom door at three feet, one inch above the floor and would exit three feet, two inches above the floor. Richard Brush, Jr., was five feet, seven inches tall.

The state of Florida does not have a specific trap gun law that would prohibit as unlawful the acts complained of as against appellant. Therefore, appellant was charged by information with manslaughter pursuant to section 782.07, Florida Statutes (1979), which states:

The killing of a human being by the act, procurement, or culpable negligence .of another, without lawful justification according to the provisions of chapter 776 and in eases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Appellant filed a sworn motion to dismiss based on the alleged unconstitutionality of the statute as applied to the facts of this case, which motion was denied by the circuit court. Thereafter, appellant entered a plea of nolo contendere, specifically reserving his right to appeal the denial of his motion to dismiss. He was subsequently found guilty of the charge of manslaughter and sentenced to two years probation. In this appeal, appellant raises several points for our consideration.

Appellant initially contends that Florida’s manslaughter statute is invalid as being vague and ambiguous when applied to the facts of this case. Conversely, he asserts that when the facts are applied to the statute, the statute was not violated by his acts. Appellant premises his argument on the language of section 782.07 which states it is not manslaughter if the acts fall within “lawful justification according to the provisions of chapter 776.”

Section 776.012 of that chapter, entitled “Use of force in defense of person”, and regarding use of deadly force provides in pertinent part:

However, he is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony.

Similarly, section 776.031, entitled “Use of force in defense of others” provides:

A person is justified in the use of force, except deadly force, against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his possession or in the possession of another who is a member of his immediate family or household or of a person whose property he has a legal duty to protect. However, he is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony.

(Emphasis added).

However, in referring to chapter 776, appellant points out that in 1975, the Florida legislature repealed section 776.021. Pursuant to that section a person would be justified in the use of deadly force to protect a dwelling only if:

He reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling. (Emphasis added).

Appellant alleges the repeal of this statute left a “constitutional flaw' or gap” which renders the charge against him invalid.

Appellant predicates his attack on the constitutionality of section 782.07 primarily on the decision of this Court in Bradley v. State, 79 Fla. 651, 84 So. 677, 679 (1920). The holding of Bradley with reference to this question, is that “before a man can be punished, his case must be plainly and un-mistakenly within the statute.” Appellant contends that because of the repeal of section 776.021, his acts committed in defending his dwelling are not specifically prohibited by section 782.07. Furthermore, relying on the United States Supreme Court’s decision in Cramp v. Board of Public Instruction of Orange County, Florida, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961), appellant maintains the exercise of different intérpretations following the repeal of section 776.021 exemplifies extraordinary ambiguities in the statutory language.

At the outset, it is not clear from appellant’s argument whether or not he is attacking the facial validity of section 782.07 as well as the validity of its application to the instant case. However, insofar as our determination of the former will necessarily limit our discussion of the latter, we will proceed as to both issues.

This Court has the duty, if reasonably possible, and consistent with constitutional rights, to resolve all doubts as to the validity of a statute in favor of its constitutionality. Brown v. State, 358 So.2d 16 (Fla.1978). It is an immutable principle that “a statute which either forbids or requires the doing of an act in terms so vague that anyone of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Brock v. Hardie, 114 Fla. 670, 154 So. 690, 694 (1934); see also Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146 (1927); D’Alemberte v. Anderson, 349 So.2d 164 (Fla.1977); State v. Llopis, 257 So.2d 17 (Fla.1971). This Court adopted that definition as its own and designated it as the test approved by the United States Supreme Court.

Our decisions under that principle, however, are necessarily premised on the issue of the constitutionality vel non of a specific statute. In contrast, appellant apparently premises his constitutional challenge not on an existing statute, but on the ramifications of a non-existing one. The repeal of section 776.021 allegedly creates a greater right to use deadly force to protect real property, other than a dwelling, pursuant to section 776.031 and to defend against the threat of great bodily harm or the imminent commission of a forcible felony pursuant to section 776.012, with no concomitant right to likewise defend a dwelling. Accordingly, appellant contends that he is forced to guess at the meaning of section 782.07, Florida’s manslaughter statute, in contravention of the rule in Cramp and in violation of the first essential of due process of law. However, a careful examination of the Supreme Court’s decision in Cramp will show that it is not authority for appellant’s argument.

Cramp v. Board of Public Instruction of Orange County, Florida, involved an action by a school teacher challenging the constitutionality of a loyalty oath required by section 876.05, Florida Statutes. The Supreme Court held the statute to be unconstitutionally vague and a denial of due process of law. In so holding, the Court sought to dispel the unconstitutional evil embodied in the vague statutory language. Nothing in its decision suggests that the rule espoused by the Supreme Court, the same as that espoused by this Court in Smith v. State, 237 So.2d 139 (Fla.1970), would necessarily include an unconstitutional gap created by the repeal of a statute. Under those circumstances, as under the instant case, there are no “vices inherent in an unconstitutionally vague statute”, simply because there exists no statute. In any event, our decision in Cobb v. State, 376 So.2d 230 (Fla.1979), may well be dispositive of this issue. Cobb involved a vagueness challenge against section 782.11, Florida Statutes, which makes it a felony to “unnecessarily kill another, either while re? sisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed ...” In upholding the validity of that statute we stated:

When the words “unnecessarily kill” in section 782.11 are considered together with the remainder of chapter 782, they are sufficiently precise to meet the constitutional standard for definiteness in penal statutes. Homicides committed while resisting another’s unlawful act are punishable only if not excusable, as provided in section 782.03, Florida Statutes (1975), or if not justifiable, as provided in section 782.02 or chapter 776, Florida Statutes (1975). Read with these provisions, section 782.11 is not impermissibly vague.

Id. at 231 (emphasis added). Likewise, we hold that section 782.07, when read in conjunction with chapter 776 or the other provisions of chapter 782, is neither vague nor ambiguous, nor would men of common intelligence necessarily have to guess at its meaning or differ as to its application. Therefore, we find that section 782.07 is constitutional and affirm the judgment of' the circuit court.

We next consider appellant’s argument that the statute is unconstitutional as applied to him. The state argues in its brief that this Court’s recent decision in a similar case, Vernold v. State, 376 So.2d 1166 (Fla. 1979), precludes such a challenge subsequent to a plea of nolo contendere. In Vernold the defendant challenged the validity of Florida’s disorderly intoxication statute, section 856.011, by a motion to dismiss, which motion was denied by the trial court. The defendant subsequently entered a plea of nolo contendere reserving the right to appeal the denial of his motion. In upholding the constitutionality of section 856.011 we stated:

We need not consider the defendant’s argument that the statute is unconstitutional as applied to him. Defendant’s plea of nolo contendere, for the purposes of this prosecution, admitted the facts alleged in the information. Vinson v. State, 345 So.2d 711 (Fla.1977). He may not now challenge these facts as he is attempting to do in this appeal. Martinez v. State, 368 So.2d 338 (Fla.1978).

Id. at 1167.

Nevertheless, this Court has approved the practice of reserving for appeal dispositive legal issues after a plea of nolo contendere. Such a procedure expedites resolution of the controversy and narrows the issues to be resolved. State v. Ashby, 245 So.2d 225, 228 (Fla.1971). Recently, in Brown v. State, 376 So.2d 382, 385 (Fla. 1979), we held that for purposes of an Ash-by nolo plea, a dispositive legal issue would be, inter alia, the constitutionality of a controlling statute. Under this rule we emphasized the wide discretion resting with the trial judge in accepting or rejecting a nolo plea based upon his perception of the dispositive nature of the legal issue reserved for appeal.

Vernold does not stand for the strict proposition that once one pleads nolo con-tendere and reserves the right to appeal the issue of constitutionality, he can never challenge on appeal the constitutionality of a statute as applied. The present case differs factually from Vernold.

In the present case the facts serving as the basis for violation of section 782.07 are uncontroverted and clear. Falco argues that the application of this statute to the uncontroverted facts violates his rights to due process and equal protection of the laws.

In Vernold, on the other hand, defendant attempted to challenge the facts on appeal as well as the constitutionality of the statute as applied to these controverted facts.

This Court has made it clear that questions of fact cannot be reserved for appeal upon a plea of nolo contendere. Martinez v. State, 368 So.2d 338 (Fla.1978). But a question of law dispositive of the cause may be reserved for appeal. Brown v. State, 376 So.2d 382 (Fla.1979); Vinson v. State, 345 So.2d 711 (Fla.1977).

Here the constitutionality of section 782.-07 as applied to the uncontroverted facts is a question of law dispositive of the cause, which may properly be resolved in this appeal.

Finally, appellant challenges the repeal of section 776.021 on the basis of equal protection. It is contended that the failure of the legislature to provide for the right to use deadly force to protect the dwelling creates an “unequal, arbitrary, capricious and unreasonable classification ... . ” This argument, however, is based on the faulty premise that a property owner has the “right”, pursuant to section 776.031, to use deadly force to protect his real property, other than his dwelling, from the imminent commission of a forcible felony, or that a person has the “right”, pursuant to section 776.012, to use deadly force to protect himself or another from imminent death or great bodily harm or the imminent commission of a forcible felony, but that an owner of a dwelling has no similar “right” to defend the dwelling. The fault necessarily lies in the fact that there is no such alleged right involved. Rather, the statutes mentioned merely devolve a “privilege” upon a property owner, one not to be abused and therefore one which is necessarily limited. The limitation is predicated on the term “justifiable”, and in either of the situations presented by the statutes, the use of deadly force to protect person or property is justifiable only if there is a reasonable belief that such force is necessary. Consequently, the “right” requisite to an equal protection challenge is conspicuously absent. McDaniel v. Board of Public Instruction, 39 F.Supp. 638 (N.D.Fla.1941); Caldwell v. Mann, 157 Fla. 633, 26 So.2d 788 (1946); Riley v. Lawson, 106 Fla. 521, 143 So. 619 (1932); State ex rel. Spencer v. Bryan, 87 Fla. 56, 99 So. 327 (1924); State ex rel. Lamar v. Jacksonville Terminal Co., 41 Fla. 363, 27 So. 221 (1899).

Nevertheless, there is provision made in the Florida Statutes for the protection of the dwelling. Section 782.02, entitled “Justifiable use of deadly force” states:

The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him or upon or in any dwelling house in which such person shall be.

Furthermore, Florida has long recognized the venerable “castle doctrine” which stands for the proposition that a person’s dwelling house is a castle of defense for himself and his family, and an assault on it with intent to injure him or any lawful inmate of it may justify the use of force as protection, and even deadly force if there exist reasonable and factual grounds to believe that unless so used, a felony would be committed. Peele v. State, 155 Fla. 235, 20 So.2d 120 (1944); Russell v. State, 61 Fla. 50, 54 So. 360 (1911); Wilson v. State, 30 Fla. 234, 11 So. 556 (1892); Harris v. State, 104 So.2d 739 (Fla. 2d DCA 1958); 16 Fla.Jur.2d Criminal Law § 1077 (1979).

However, appellant contends that it is inherently unreasonable to demand the presence of a person to justify the use of deadly force in defense of his dwelling, (see section 782.02, Florida Statutes (1979)), but not in defense of his real or personal property. We disagree with appellant’s argument for two reasons. First, appellant overlooks the fact that section 776.031, although expressly excluding the dwelling in reference to the protection of real property, can be read to include the dwelling in reference to the protection of personal property. It stands to reason that most, if not all, personal property would be found within the dwelling. Therefore, in light of section 782.02 and the castle doctrine, and our construction of section 776.031, appellant’s argument that the owner of a dwelling has been arbitrarily and unreasonably denied equal protection is wholly without merit.

Second, appellant erroneously presumes that the use of a deadly mechanical device, such as a trap gun, in defense of any property is a justifiable use of force based on a reasonable belief of its necessity. We agree with the state’s argument that the use of such a device is fundamentally unnecessary and unjustifiable.

A trap gun or spring gun is absolutely incapable of exercising discretion or reason. Rather, it sentences its victim to death or great bodily injury in a split second explosion of deadly force. Such arbitrary brutality should necessarily be prohibited under any circumstance. In reference to this question, we cite with approval the statement of the California Supreme Court in People v. Ceballos which reads:

Allowing persons, at their own risk, to employ deadly mechanical devices imperils the lives of children, firemen and policemen acting within the scope of their employment, and others. Where the actor is present, there is always the possibility he will realize that deadly force is not necessary, but deadly mechanical devices are without mercy or discretion. Such devices “are silent instrumentalities of death. They deal death and destruction to the innocent as well as the criminal intruder without the slightest warning. The taking of human life [or infliction of great bodily injury] by such means is brutally savage and inhuman.” (See State v. Plumlee, supra, [177 La. 687] 149 So. 425, 430.)

12 Cal.3d 470, 116 Cal.Rptr. 233, 236, 526 P.2d 241, 244 (1974) (emphasis added).

The facts of Ceballos are similar to those in the instant case in many respects. In that case, two teenaged boys attempted to burglarize the defendant’s home. When one of the boys removed the lock on the garage door with a crowbar and subsequently pulled the door outward, he was shot in the face, and wounded, by a bullet from a trap gun. The defendant had set up the trap gun after a previous burglary and an apparent attempted burglary. California did not have a statute specifically dealing with trap guns; however, by statute, homicide was justifiable “[w]hen committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony.” The Court noted the common law rule that killing or use of deadly force to prevent a felony was justifiable only if the offense was “a forcible and atrocious crime.” Burglary, however, was not considered by the Court to “reasonably create a fear of great bodily harm.” The Court concluded that the defendant was not justified in shooting the youth, by means of a trap gun, in order to prevent him from committing burglary.

Although a “forcible felony” includes burglary in Florida (section 776.08, Florida Statutes), we must agree with the observation made by the California Court in Cebal-los, which was:

A defendant is not protected from liability merely by the fact that the intruder’s conduct is such as would justify the defendant, were he present, in believing that the intrusion threatened death or serious bodily injury.... There is ordinarily the possibility that the defendant, were he present, would realize the true state of affairs and recognize the intruder as one whom he would not be justified in killing or wounding.

at 116 Cal.Rptr. 238, 526 P.2d 246. (Emphasis added) (citations omitted).

The record indicates that appellant was employed as a child care worker for the Dade County Youth Services prior to the incident charged against him. Appellant had also been affiliated with the Boy Scouts of America in various different positions of authority and several witnesses testified as to his fine character and deep involvement in the community. Considering appellant’s laudable credentials, and his extensive training, we observe, as did the California Supreme Court, the strong possibility that he would not have employed deadly force to protect himself against Brush’s intrusion had he been present. Therefore, we hold that the mechanical device used by appellant was unjustifiable and unnecessary.

In conclusion, we reiterate our position that section 782.07, Florida’s manslaughter statute, is constitutional as applied and does not deny appellant equal protection of the • laws.

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: GRIMES, Acting Chief Judge. OTT, Judge,

license: Public Domain

text:
    George R. ALBRECHT and C. G. Schindler, Jr., Appellants, v. The STATE of Florida; The Honorable Reubin O’D. Askew, Governor; Honorable Jim Williams, Lieutenant Governor; Honorable Jesse J. McCrary, Jr., Secretary of State; Honorable Robert Shevin, Attorney General; Honorable Bill Gunter, State Treasurer and Insurance Commissioner; Honorable Gerald A. Lewis, Comptroller; Honorable Doyle Conner, Commissioner of Agriculture; Honorable Ralph D. Turlington, Commissioner of Education; Honorable Joseph W. Landers, Jr., Secretary, Department of Environmental Regulation, as the Trustees of the Internal Improvement Trust Fund of the State of Florida; the Internal Improvement Trust Fund of the State of Florida; and the Department of Environmental Regulation, Appellees.
    No. 79-2234.
    District Court of Appeal of Florida, Second District.
    March 25, 1981.
    As Modified on Denial of Rehearing Dec. 11, 1981.
    Lee S. Damsker of Gordon & Maney, P. A., Tampa, for appellants.
    Alfred W. Clark, Tallahassee, for appellee Department of Environmental Regulation.
   GRIMES, Acting Chief Judge.

This is an appeal from a final judgment on the pleadings which dismissed a complaint on grounds of res judicata.

The pleadings reflect the following facts. Appellants were owners of coastal property in Pinellas County, 300 feet of which had been lost by erosion between 1943 and 1974. In 1974 they applied to the Board of County Commissioners of Pinellas County, sitting as the Pinellas County Water and Navigation Control Authority, for permission to fill and bulkhead their land to its original size. The board approved the application subject to the approval of the Board of Trustees of the Internal Improvement Trust Fund.

Appellants then applied to the Department of Pollution Control for water quality certification. However, that department denied their application. As a result, they filed a petition for review, and pursuant to a reorganization of the state environmental agencies, their application was transferred to the Department of Environmental Regulation. Following a hearing, the -hearing officer issued a recommended order affirming the denial. The secretary of the Department of Environmental Regulation adopted the recommended order, and the. Board of Trustees of the Internal Improvement Trust Fund affirmed it.

Appellants sought judicial review in the First District Court of Appeal pursuant to section 120.68, Florida Statutes (1975). The court denied their petition in an opinion, issued on January 30, 1978. Albrecht v. Department of Environmental Regulation, 353 So.2d 883 (Fla. 1st DCA 1978). Almost seven months later, appellants filed suit in the circuit court of Pinellas County against the State of Florida and several state agencies alleging that by virtue of the administrative action recited above they had been unable to put their property to any use and that its fair market value had been greatly diminished. The complaint requested that the court declare the property to have been, the subject of inverse condemnation and fix an amount of compensation to be paid ap.-. pellants as a result of the taking.' The court entered judgment on the pleadings against appellants, and they have appealed from that judgment.

The court predicated its judgment on Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979). In Coulter, this court held that one may bring suit in circuit court to collaterally attack the constitutionality of a law pursuant to which an administrative agency takes action. On the other hand, we said:

[W]hen administrative agency action in a proceeding has become final as to a party, whether or not review by a district court of appeal is sought, that party is foreclosed from asserting in circuit court that the agency action is unconstitutional (or ,is improper for any other reason).

373 So.2d at 427. Perceiving appellants’ complaint as one attacking the constitutionality of the agency action rather than one attacking the constitutionality of the law under which the agency acted, the lower court held that once the decision in Al-brecht became final, the doctrine of res judicata barred appellants’ action.

Appellants seek to avoid the rationale of Coulter by arguing that they are not now trying to void the action of the Department of Environmental Regulation. Rather, they contend that they are seeking compensation for the taking which came about as a result of that action. They suggest that this is not a matter which they could have raised in the administrative proceedings because the issue of taking is a judicial function, and a jury must determine compensation. Despite the ingenuity of their position, we cannot accept it as a rational exception to the principles of Coulter.

Under the teaching of Coulter, appellants could have argued the question of .whether the order of the Department of Environmental Regulation constituted a taking of their property in the proceedings before the First District Court of Appeal. Cf. Farrugia v. Frederick, 344 So.2d 921 (Fla. 1st DCA 1977), in which the court considered just such a contention. The fact that they did not raise it is irrelevant to the application of res judicata. Hay v. Salisbury, 92 Fla. 446, 109 So. 617 (1926). To now allow them to assert it under the guise of arguing that the taking was legal but that they were entitled to be paid for it would be to permit them to go through the back door. They could have made the same contention in the administrative proceeding, and the First District Court of Appeal could have required that any taking be compensated. In fact, this is in essence what happened in Estuary Properties, Inc. v. Askew, 381 So.2d 1126 (Fla. 1st DCA 1979).

Upon review of the denial of an application for development approval, the court in Estuary recognized that the state could legitimately regulate wetlands development for public benefit even though it had the effect of expropriating private property. However, the court held that under these circumstances, the state must compensate the landowners. It effectuated this result by ordering that the application be granted unless the county where the land was located commenced condemnation proceedings within thirty days.

Appellants are bound by the final determination of Albrecht. Therefore, principles of res judicata bar the relief they sought in circuit court.

AFFIRMED.

OTT and DANAHY, JJ., concur.

Rehearing denied:

OTT, Judge,

dissenting.

I dissent. I would grant rehearing and reverse the dismissal of this action.

Appellants’ complaint in the court below alleged that they had applied, under chapter 253, Florida Statutes, for a permit to fill their eroded waterfront property. They alleged that their application had been denied by action of the state agency and that, as a consequence, they had been denied all use of the subject property, entitling them to just compensation for the taking of that property by the state.

In express reliance on the opinion of this court in Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979), the trial court reluctantly dismissed the suit on the ground that, under the Coulter view, the denial of the fill permit had established as res judica-ta that no taking of appellants’ property would result. This court affirmed, in which I reluctantly concurred. I am now convinced that my original reaction was correct, the affirmance was erroneous, and so was the reliance of the trial court on Coulter.

The doctrine of res judicata prohibits the relitigation of the same cause of action between the same individuals, and forecloses the examination of any issue which was adjudicated, either expressly or by operation of law, in the earlier proceedings. Gordon v. Gordon, 59 So.2d 40 (Fla.1952). It applies to the quasi-judicial decision of administrative agencies. City of Bartow v. Public Employees Relations Commission, 382 So.2d 311, 313[1, 2] (Fla. 2d DCA 1979).

In Coulter v. Davin, supra, a land owner who had been denied a permit by the state to fill his property filed a circuit court action seeking a declaration that the agency order was a nullity because, among other reasons, it constituted an unlawful taking of private property without just compensation. The trial court dismissed the action and we affirmed, reasoning that the land owner could have raised that issue in the administrative proceedings and, since he did not do so, the doctrine of res judicata barred him from asking another tribunal to examine that same issue.

I think the result in Coulter was correct, but I am now convinced that the doctrine of res judicata was not involved there. The prime prerequisite to application of that doctrine is that the issue being raised in the subsequent action must have been adjudicated, either expressly or by operation of law, in some previous action between the same parties. Gordon v. Gordon, supra. No such showing was made (or possible) either in Coulter or in the case now before us.

One of our sister courts has reached Coulter’s result by a different route — or at least a renamed route — on facts quite similar to those at bench. In Key Haven Associated Enterprises, Inc. v. Board of Trustees, 400 So.2d 66 (Fla. 1st DCA 1981), a fill permit had been denied in chapter 380, Florida Statutes, administrative proceedings. The land owner did not appeal or seek judicial review, but instead filed an inverse condemnation suit in circuit court, claiming that the denial of the permit had deprived him of all use of his property, thus entitling him to just compensation. Dismissal of the suit was affirmed on the ground that administrative remedies had not been exhausted.’ Although cited and approved extensively in the opinion, Coulter, with its reliance on res judicata, obviously could not apply where the causes of action were so dissimilar. Even the related doctrines of collateral es-toppel and collateral attack were not helpful, the first because the question of a taking had not been actually adjudicated by the agency and the second because the court action did not attack or seek to overturn the agency order. As a consequence, the Key Haven court was forced to rely upon a different ground, and chose the doctrine of exhaustion of administrative remedies to support the lower court action.

In my opinion, both Coulter (except for' result, of course) and Key Haven are unsupportable, and any difference between their ratio decidendi is purely semantic. My brethren, both in this court and in first district, evidently conclude that proof that the denial of a fill permit would effect a taking would compel granting of the permit. To the contrary. Proof that denial of a permit effected a taking would compel an award of compensation, and failure to do so would be reversible error under the fifth amendment of the Federal Constitution and article X, section 6, of the Florida Constitution. This case merely calls for a determination of where and when the demand for compensation can be entertained. Article IV, section 6, of the Florida Constitution supplies the answer to the first question: the circuit court. Behm v. DOT, 383 So.2d 216, 218 (Fla.1980). Section 95.11(4) of the Florida Statutes provides the second answer: within four years after the taking.

The essential predicate of both Coulter and Key Haven is that the relief sought in the circuit court was available in the administrative proceeding or in the district court of appeal upon petition for review of the agency action. Coulter proceeds on the tacit theory that since agency action is presumptively a valid exercise of police power, the denial of a permit necessarily carries with it an implied finding that no taking will result, because that would be unconstitutional and thus irreconcilable with the presumed validity of the agency action. Consequently, upon failure to attack that implied finding it becomes res judicata. Key Haven essentially tracks that reasoning, but for obvious reasons skirts the res judicata rationale.

The flaw in both Coulter and Key Haven is in their common predicate, that the relief being sought in circuit court was not only available in the administrative proceedings, but available only there.

Neither the state nor Federal Constitution prohibits the state from taking private property for lawful public purposes. They simply require that the owner be justly compensated. The fact that lawful state action may result in a taking is not and never has been a bar to the valid exercise of police power. If there was ever any doubt about that, it was recently laid to rest by our supreme court:

It may be, however, that a regulation complies with standards required for the police power but still results in a taking. This occurred in Pennsylvania Coal Co. . .. [where] [t]he Court held that enforcement of the statute amounted to a taking which required compensation.
Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1381 (Fla.1981).

It necessarily follows that when a land owner applies to the state for a permit concerning his property, whether denial of that permit will or will not result in total inability to use the property is completely extraneous to the issues involved in the agency proceeding. It is simply immaterial, and the agency not only has no jurisdiction to adjudicate that issue, there is no reason for it to do so, because even if a taking were concededly the inevitable result, that would not and should not dissuade the agency from whatever action is necessary to protect the public. That is the duty — the sole duty — of the agency, and its very reason for being. If a taking results, the land owner must pursue his remedies elsewhere. That is the procedure now expressly recognized by section 253.763, Florida Statutes (effective May 29, 1978), and it was, I submit, the proper procedure long before then.

If the question of a taking is irrelevant in the agency proceedings, it surely could be no less so in a reviewing court, or in an independent circuit court action attempting to overturn the agency order. And that is why Coulter was correct. The land owner was simply raising an issue that is not a cognizable deterrent to the exercise of police power. In short, his action was properly dismissed for failure to state a cause of action.

Our opinion in this case, from which I now recede, relied upon Farrugia v. Frederick, 344 So.2d 921 (Fla. 1st DCA 1977) and Estuary Properties, Inc. v. Askew, 381 So.2d 1126 (Fla. 1st DCA 1979) for the proposition that the question whether agency action resulted in a taking can be raised by petition for review before the district court of appeal and, if that is done, that court can grant relief (prior to May 29, 1978?) by conditioning the agency order upon the filing by the state of eminent domain proceedings. It is significant that neither of those cases cites any supreme court approval of such a theory, and it is also noteworthy that neither opinion reveals whether anyone even contested the propriety of raising such an issue in that proceeding.

In Farrugia the land owner argued that denial of a permit to dig a canal on his property effected a taking of the property without due process of law. The court pointed out that (1) the agency action complied with all applicable standards for exercise of police power and (2) all use of the subject property in fact had not been precluded by the agency order. The point for which we cited the case as authority was merely an implication, and even that was, at best, purely dictum.

In Estuary Properties, Inc. v. Askew, supra, the hearing officer in agency proceedings undertaken under chapter 380, Florida Statutes, recommended denial of a permit after refusing to address the issue of whether a taking would result. He ruled (correctly, I am convinced) that he had no jurisdiction to consider that “judicial issue,” which was “beyond the purview of the administrative hearing.” 381 So.2d at 1131. Notwithstanding that posture of the case, and the resultant chilling effect that ruling must have had on the presentation of evidence on the question whether a taking would result, the district court of appeal purported to “find” that a taking had resulted, and remanded the case to the agency with instructions to grant the permit unless the county instituted proceedings to condemn the property. Not surprisingly, the supreme court granted certiorari, approved the agency action, and remanded the case solely for specification by the agency of the matters required by section 380.08(3), Florida Statutes (1972). The action of the district court, upon which we relied in our opinion in this case, was not adopted by the supreme court. Graham v. Estuary Properties, Inc., supra.

It seems to me that much of the confusion surrounding this problem has resulted from unwarranted assumptions about the meaning and purpose of language such as that found in subsection (1) of section 380.-08, Florida Statutes (1972). There is, of course, no indication whether chapter 380 applied to the permit proceedings in the present case, but the principles embodied in section 380.08(1) surely apply to all agency action, even when not expressly legislated. That is precisely my point. The cardinal rule, whether articulated by a court, a legislature or a constitution, is that private property cannot be confiscated for public purposes with fiscal impunity. Section 380.08(1) says no more than that. But, as already noted, that rule does not impair or limit police power. It merely assures the land owner that if his property is taken, or he is deprived of all use thereof, he will be compensated.

There is nothing in that rule, however, investing an administrative agency with jurisdiction to adjudicate those issues. Coulter, Key Haven, Estuary v. Askew, and our initial opinion here all assert (either tacitly or expressly) that, nevertheless, the district court of appeal has such jurisdiction by virtue of section 120.68(12)(c), and failure to invoke that power leaves the hapless land owner without the use of his property, without compensation, and without remedy.

In the first place, as Judge Booth aptly points out in her dissent in Key Haven, it is one thing to say that a statute permits the raising of an issue in a particular manner at a particular time, and quite another thing to say that such statute mandates the raising of that issue exclusively there and then, on pain of having the matter forever foreclosed adversely.

In the second place, there indeed are issues in administrative permit proceedings that are constitutional in nature and that clearly affect the validity of the agency action. Due process and equal protection of laws quickly come to mind as examples of constitutional principles with which a reviewing court would be concerned. Should it be determined that an agency violated those fundamental rights, the remand directed by section 120.68(12) would be not only proper but unavoidable.

Not so, however, if the complaint is that agency action has effected a taking of private property for public purposes. Even if that assertion should be proven true when the issue is actually considered in a forum authorized to decide it, no violation of a constitutional right would occur unless and until a proper court refused to compensate the land owner. The most that could be asserted in a district court of appeal that was reviewing the agency action would be an allegation that the action, should it become final, would effect a taking. The district court (1) would have no record revealing the accuracy of that assertion and no evidence to support a finding either way and, even if it did, (2) would have no basis for overturning an otherwise proper exercise of police power. In short, there are two elements necessary to constitute a fifth amendment violation: (1) a taking and (2) failure to pay just compensation. When a district court of appeal is reviewing agency action, the mere possibility that the first element has occurred is insufficient to so much as justify, let alone mandate, relief.

I submit that the agency order in the instant case became final when the first district court of appeal affirmed it in January, 1978, and that appellants then had at least three years within which to file proceedings in the circuit court to establish that the agency action had deprived them of all use of their property, and to prove their resultant damages. On May 29, 1978, section 253.763 became effective, and the time for filing such an action was reduced to 90 days. On August 21, 1978, appellants filed the instant suit. It is immaterial whether the new statute did or did not pertain to existing causes, because under any view of the matter the action was timely. Carpenter v. Florida Central Credit Union, 369 So.2d 935, 937 (Fla.1979); Foley v. Morris, 339 So.2d 215, 217 (Fla.1976). The relief sought by the action was by then expressly authorized and the court erred in dismissing the case.

It is somewhat peculiar that neither Coulter nor Key Haven (except in the dissent) discussed section 253.763. The only logical explanation of that omission is that in both cases the court viewed the new statute as creating a new cause of action. I am unable to accept that hypothesis, nor can I logically conclude that, as Key Haven asserts, the relief specified by the new statute is available in the administrative proceedings if one will but exhaust his remedies there. If the new statute created a new cause of action, and Key Haven is correct in its assertion that section 120.68(12)(c) requires the resolution of the basic predicate of that cause of action exclusively in the agency proceeding, surely some revamping of chapter 120 would have been undertaken. That no such amendment has been made substantially discredits that hypothesis. Either the new statute did not create a new cause of action, or section 120.68(12)(c) does not make the district court of appeal the exclusive forum for raising the issue of a taking.

As for Coulter, the mere fact that section 253.763 was enacted destroys the rationale of that case. How could the denial, on May 28, 1978, of a fill permit be a res judicata determination that no taking resulted therefrom, when an identical order, issued the next day in identical proceedings under identical (unaltered) statutory authority, does not have that effect?

In closing, I should add that the views I express herein are not to be construed as suggesting that the state action denying the permit did in fact constitute a taking. That has not been tested below and is not before us. I am simply dealing with where and when such matters can and must be raised. I think appellants stated a viable cause of action, and I would grant rehearing and reverse the dismissal of their complaint.

      . The parties agree that section 253.763, Florida Statutes (1979), is inapplicable to this case.

      . The court sensed the infirmity in Coulter, and was uneasy about its rationale, but correctly concluded that the judge had no jurisdiction to ignore it: “I think I’m bound by the second district. I think the case is binding and I’ll grant your motion. ... Specifically, Coulter v. Davin, 373 So.2d 423. Were it not for this case, I would rule otherwise, quite candidly. I can put on the record, without being critical of the district court, what I see is possible problems from the trial court from an administrative standpoint.”

      . If a liability created by the Constitution is a “liability created by statute,” the time would be only three years. § 95.11(5), Fla.Stat.

      . Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), in which Justice Holmes made a comment particularly pertinent to the question at hand:
      We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.
      The noteworthy feature of that comment is that there is no hint that the public condition cannot be thus improved, but merely a reminder that the fiddler must be paid.

      . Section 380.08(1), Florida Statutes (1972).
      Nothing in this chapter authorizes any governmental agency to adopt a rule or regulation or issue any order that is unduly restrictive or constitutes a taking of property without payment of full compensation, in violation of the constitutions of this state or of the United States.

      . Section 120.68(12), Florida Statutes.
      The court shall remand the case to the agency if it finds the agency’s exercise of discretion to be: ... (c) otherwise in violation of a constitutional or statutory provision; but the court shall not substitute its judgment for that of the agency on an issue of discretion.

      . As noted in our initial opinion, appellants properly deny reliance on the new statute. It could not help them if, as the majority holds, they had no cause of action without it.


author: DANAHY, Judge.

text:
    PICK KWIK FOOD STORES, INC., Appellant, v. James H. TENSER, Appellee.
    No. 80-1348.
    District Court of Appeal of Florida, Second District.
    July 10, 1981.
    As Modified on Denial of Rehearing Nov. 18, 1981.

      Herbert W. Langford and James Schwartz of Haworth, Langford & Turtzo, Clearwater, and Ross R. Kinney and Ronald E. Klipsch of Quarles & Brady, Milwaukee, Wis., for appellant.
    George R. McLain of Harnden, McLain, Spivey & Dart, and Daniel Joy, Sarasota, for appellee.
   DANAHY, Judge.

A contract entered into by the parties’ respective predecessors in interest is the subject of this lawsuit. The trial judge ruled as a matter of law that appellant was bound by the contract and guilty of breaching it, and a jury awarded appellee the sum of $100,000 in damages for the breach. We reverse.

The original parties to the contract were In & Out Food Stores, Inc., and Petrol Express. In & Out Food Stores leased premises on which it operated a convenience store and the contract gave Petrol Express the right to conduct retail sales of gasoline on the premises. To that end, the contract allowed Petrol Express to install the necessary equipment and machinery for dispensing gasoline at retail, which Petrol Express agreed to do, and prohibited In & Out Food Stores from selling or permitting the sale of any gasoline products other than those provided by Petrol Express. In & Out Food Stores agreed to collect all proceeds from the sale of gasoline and deposit the same in an account in the name of Petrol Express. Net profits were to be divided equally between the parties. Petrol Express commenced a retail sales of gasoline business at the In & Out Food Stores’ location pursuant to this arrangement, and it proved to be profitable.

Appellant acquired In & Out Food Stores’ leasehold interest and convenience store business several years later. In the meantime, appellee required the rights of Petrol Express under the contract. Following appellant’s acquisition of the convenience store, appellee continued to operate the retail gas business at that location. Some thirty months later appellant informed ap-pellee that it did not consider itself bound by the contract and terminated its relationship with appellee. For that alleged breach of contract, the jury awarded appellee an amount representing lost profits plus attorney’s fees, the latter being provided in the contract to the party required to bring legal proceedings for its enforcement.

Appellant’s first line of defense is that it did not assume or acquire the burden of any obligation under the contract, as a matter of law, by reason of its purchase of In & Out Food Stores’ leasehold interest. We need not reach that question because we conclude that the executory features of the contract were void from the beginning for lack of consideration or, as the rule is sometimes expressed, for lack of mutuality.

The contract expressly grants ap-pellee, as successor in interest to Petrol Express, the unrestricted right to remove his equipment and machinery from appellant’s premises and terminate the contract at any time. A bilateral contract terminable at the will of one party is not binding, and may be terminated by either party without liability for payment of damages representing lost profits anticipated by the other. This rule is sometimes expressed as the requirement that there must be mutuality of obligation with respect to contracts to be performed in the future. A binding contract requires consideration. In a bilateral contract, the promise of one party constitutes the sole consideration for the promise of the other. If one party has the unrestricted right to terminate the contract at any time, that party makes no promise at all and there is not sufficient consideration for the promise of the other. E. I. Du Pont De Nemours & Co. v. Claiborne-Reno Co., 64 F.2d 224 (8th Cir. 1933); Miami Coca-Cola Bottling Co. v. Orange Crush Co., 296 F. 693 (5th Cir. 1924); Jacob Schmidt Brewing Co. v. Minot Beverage Co., 93 F.Supp. 994 (D.N.D.1950); Allington Towers North, Inc. v. Rubin, 400 So.2d 86, (Fla. 4th DCA 1981); I Williston on Contracts (3d Ed.) § 104 at 401.

Other than to install equipment, maintain it in good repair, and carry liability insurance while the equipment remained on appellant’s premises, appellee had no express or implied commitment under the contract to do anything. He could remove the equipment at any time. Therefore, appellant was not committed under the contract and was entitled to terminate appellee’s gasoline sales business on appellant’s premises. Since appellant is not liable to appel-lee for damages representing future lost profits, the judgment in appellee’s favor is erroneous.

REVERSED and REMANDED with directions to enter judgment for appellant.

GRIMES, A.C.J., and CAMPBELL, J., concur.

      . Mutuality of obligation is a concept separate and distinct from the equitable doctrine requiring mutuality of remedy. In equity, lack of mutuality means that equity will not give specific performance to a contract unless there is mutuality in the sense that the plaintiff’s promise, so far as it is still unperformed, is capable of equitable enforcement. 1 Williston on Contracts, 3d ed., § 105A at 423. Appellee correctly points out that in Thompson v. Shell Petroleum Corp., 130 Fla. 652, 178 So. 413 (1938), a lessee’s option to terminate a lease was held not destructive of “mutuality” so as to preclude the lessee from obtaining injunctive relief against the lessor. However, “mutuality” in that case referred to mutuality of remedy, not mutuality of obligation. Unlike the instant case, the lessee’s right to terminate did not destroy the mutuality of obligation in the lease agreement, and lack of consideration was not an issue. Appellee’s reliance on the Thompson case, therefore, is misplaced.


author: DANIEL S. PEARSON, Judge. DANIEL S. PEARSON, Judge.

text:
    Johnnie Gary MILLS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-941.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    On Rehearing Dec. 8, 1981.

      Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Mills appeals his convictions for first degree murder, kidnapping for ransom or reward, robbery with a deadly weapon, and conspiracy to commit robbery.

The facts of this case have been stated in one form or another in prior opinions addressing the appeals of Mills’ co-defendants, Nathaniel Taylor and David Washington. For purposes of the present appeal, we add to those recitations certain facts pertaining to Mills’ involvement in this kidnapping-robbery scheme which ended with the killing of Frank Meli.

The evidence of Mills’ involvement substantially comes from his own voluntary statement to the police. Mills knew of, and agreed to participate in, Washington’s plan to respond to a newspaper advertisement with the intent to lure a prospective car seller to Taylor’s house, to steal the victim’s car, and to hold him captive in order to sell the car. Meli had the misfortune to place the ad which Washington answered. On September 28, 1976, Mills and Taylor were hiding in the bedroom of the house when Washington brought Meli there. Mills helped tie up Meli while Washington wielded a knife. In the course of things, Washington took Meli’s money, and Mills was given a share of this stolen property.

Washington succeeded in selling the car to a car dealer that same afternoon, but did not succeed in cashing the car dealer’s check. Washington returned to the house where Mills and Taylor held Meli. Mills gave Washington a photograph for use as identification in cashing the check. On the following day, September 29, 1976, Washington succeeded in cashing the check, returned to the house with $2,900, and gave Mills a share of this money.

On at least six occasions between September 28 and 29, 1976, Mills left and returned to the house where Meli was held captive. When he left the house after Washington’s return in the early afternoon of September 29, Meli, still captive, was alive. Later that afternoon, when Mills and Taylor met downtown, Taylor told him that in Mills’ absence he saw Washington and Meli fight and Washington stab Meli. Taylor told Mills that he left the house after the stabbing.

The evidence also revealed that during Washington’s check cashing trip Washington called Meli’s brother and made a ransom demand. Mills denied any knowledge of this, and there is no evidence to prove that he knew of the demand or Washington’s intention to make it.

Mills’ primary contentions are that in light of these undisputed facts, his convictions for kidnapping for ransom or reward and felony murder cannot stand.

We first turn to the conviction for kidnapping for ransom or reward. The State candidly and properly concedes that the conviction for this offense is not supported by sufficient evidence. That being the case, the only question is whether the evidence that Mills participated in Meli’s kidnapping with the intent to steal his car supports the conviction for kidnapping.

Section 787.01(l)(a), Florida Statutes (1975), provides, in pertinent part:

“ ‘Kidnapping’ means forcibly, secretly, or by,threat confining, abducting, or imprisoning another person against his will and without lawful authority, with intent to:
“1. Hold for ransom or reward or as a shield or hostage.
“2. Commit or facilitate commission of any felony... . ”

Mills was specifically and only charged with kidnapping with the intent to hold the victim for ransom or reward. The gist of the offense with which Mills was charged is the specific intent to hold for ransom, and it is that intent, and no other, which must be proved to support the charge. Keith v. State, 120 Fla. 847, 163 So. 136 (1935); Finch v. State, 116 Fla. 437, 156 So. 489 (1934). Cf. Jones v. State, 385 So.2d 1042 (Fla. 1st DCA 1980) (failure to specify the exact, felony the defendant was charged with intending to commit or facilitate the commission of in connection with a kidnapping charge renders the information vague and indefinite). The State was free to charge Mills with kidnapping with the intent to commit or facilitate the commission of robbery, a crime that doubtless was proved. For no apparent reason, it chose not to. We reverse the conviction for kidnapping and reduce the conviction on this charge to the lesser included offense of false imprisonment, which requires no such proof of specific intent.

Although the first degree felony murder conviction is not sustainable by the kidnapping, we affirm Mills’ murder conviction because it is sustained by the evidence which shows that Mills aided and abetted and was personally present during the perpetration of the robbery of Meli. The fact that the taking of Meli’s money and car had been accomplished some twenty-four hours before the killing occurred did not, under the facts of the present case, terminate the robbery so that it could no longer constitute the underlying felony for felony murder purposes. In the absence of some definitive break in the chain of circumstances beginning with the felony and ending with the killing, the felony, although technically complete, is said to continue to the time of the killing. Jefferson v. State, 128 So.2d 132 (Fla.1961). Neither the passage of time nor separation in space from the felonious act to the killing precludes a felony murder conviction when it can be said, as it can be so readily here, that the killing is a predictable result of the felonious transaction. Campbell v. State, 227 So.2d 873 (Fla.1969). Most certainly in this case, where Meli remained in continuous captivity from the commencement of the felony until his death, the nexus between the robbery and his death is clear. Jefferson v. State, supra; Archibald v. State, 77 Nev. 301, 362 P.2d 721 (1961). See generally Annot., “What Constitutes Termination of Felony for Purposes of Felony-Murder Rule,” 58 A.L.R.3d 851 (1974); R. Perkins, Criminal Law, Ch. 2, § 1,42-43 (2d ed. 1969).

Similarly, the fact that Mills was not present when Washington killed Meli is of no help to Mills in avoiding responsibility for the killing. Mills was indisputably present, aiding and abetting Washington in the perpetration of the robbery. That being so, under the revived distinction for felony murder purposes between principals and accessories before the fact, see Adams v. State, 341 So.2d 765 (Fla.1976); State v. Dixon, 283 So.2d 1 (Fla.1973), Mills was a principal in the second degree and within the ambit of the first degree felony murder statute. Enmund v. State, 399 So.2d 1362 (Fla.1981). Compare Hite v. State, 364 So.2d 771 (Fla.2d DCA 1978) (persons who aided in the planning of the felony and were not personally present at its commission were accessories before the fact and, in light of the Adams-Dixon rule, not “persons engaged” within the first degree felony murder statute) with Marcum v. State, 379 So.2d 974 (Fla. 1st DCA 1979) (person constructively present at felony subject to first degree felony murder statute). Simply stated, liability for felony murder attaches when the defendant is personally or constructively (as in the case of lookouts or getaway drivers) present at the scene of the commission of the felony, notwithstanding that the same defendant is absent when the killing occurs. As the Florida Supreme Court said in Goodwin v. State, 405 So.2d 170 (Fla.1981):

“Appellant’s presence during the actual killings is simply irrelevant for the purposes of this issue; the critical fact is his participation in the underlying felony.”

Our holding that Mills’ conviction for first degree felony murder must be affirmed requires us to vacate and set aside the sentence imposed on the underlying felony of robbery. Hegstrom v. State, 401 So.2d 1343 (Fla.1981). Finding further that the thirty-year concurrent sentence imposed on Mills for conspiracy to commit robbery is in excess of the maximum allowed by law, Taylor v. State, 386 So.2d 825 (Fla.3d DCA 1980), we reduce that sentence to five years. See §§ 812.13(2)(c), 777.-04(4)(c), 775.082(3)(d), Fla.Stat. (1975).

In sum, Mills’ convictions for first degree murder, robbery and conspiracy to commit robbery are affirmed; his conviction for kidnapping is reduced to false imprisonment; his sentence for robbery is vacated; his sentence for conspiracy to commit robbery is reduced to five years; and the cause is remanded to the trial court for imposition of sentence on false imprisonment.

Affirmed in part; reversed in part, and remanded.

ON PETITION FOR REHEARING

DANIEL S. PEARSON, Judge.

On rehearing, the State contends that despite our reversal of Mills’ conviction for the charged offense of kidnapping for ransom or reward, the evidence that Mills kidnapped with intent to commit or facilitate the commission of a felony supports Mills’ felony murder conviction. Therefore, the State says, since the robbery was not the only underlying felony proved, we should not have vacated the robbery sentence. See, e.g., King v. State, 390 So.2d 315 (Fla. 1980); State v. Pinder, 375 So.2d 836 (Fla. 1979).

The problem here is that while the offense of kidnapping with intent to commit or facilitate the commission of a felony was concededly shown by the evidence, kidnapping was never defined for the jury in those terms. Thus, under the instructions given the jury, there is simply no basis for us to conclude that the jury could well have found the defendant guilty of a distinct and separate kidnapping offense, Keith v. State, 120 Fla. 847, 163 So. 136 (1935); Finch v. State, 116 Fla. 437, 156 So. 489 (1934), which, for all the jury knew, did not exist. While we are willing to indulge assumptions about what a jury may have found, see, e.g., McCray v. State, 397 So.2d 1229 (Fla.3d DCA), review granted, Case No. 60,-667, October 5, 1981 (Fla.1981), we can only do so where both the proof and the jury instructions will support such assumptions. See State v. Jones, 377 So.2d 1163 (Fla.1979); Robles v. State, 188 So.2d 789 (Fla.1966). We have reviewed the other grounds for rehearing asserted by the State and find them to be without merit.

We have also considered Mills’ petition for rehearing. We did not overlook three other points raised by Mills. In our view, these points were without merit and required no discussion in our original opinion and require none now. While occasionally this court’s opinions conclude with the line, “We have reviewed the other points on appeal raised by appellant and find them to be without merit,” or a like statement, the absence of such language should not be taken to mean that we have overlooked points which we felt no need to address.

The petitions for rehearing are granted. We adhere to our original opinion.

      . Mills, David Washington and Nathaniel Taylor were charged in a single indictment. Washington pleaded guilty to the crimes charged in the indictment, as well as to two separate murders and other crimes with which neither Mills nor Taylor had any connection. Washington was sentenced to death, and that sentence was affirmed. See Washington v. State, 362 So.2d 658 (Fla. 1978). Taylor’s convictions for murder, false imprisonment, and conspiracy to commit robbery were affirmed; his conviction for robbery was reversed. Taylor v. State, 386 So.2d 825 (Fla.3d DCA 1980).

      . Apparently, title to the car was in the name of Meli’s mother, and the dealer made the check payable to her. On September 29, 1976, Washington produced the photograph given him by Mills at the bank, informed the bank officer that the photograph was of his mother, the payee on the check, and when the car dealer called the bank and instructed it to make payment, it did.

      .There is no specific holding in Florida that false imprisonment is a necessarily lesser included offense of kidnapping. Every state which has addressed the relationship between these offenses where defined in substantially identical language to that contained in Florida has concluded that false imprisonment is a necessarily lesser included offense of kidnapping. See Annot., 68 A.L.R.3d 828 (1976). See also In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases (Fla.1981) (Case Nos. 57,734 and 58,799). But see Yuanis v. State, 347 So.2d 448 (Fla.3d DCA 1977); Swyers v. State, 334 So.2d 278 (Fla.3d DCA 1976); In the Interest of T.L.T., 324 So.2d 200 (Fla.4th DCA 1975) (affirming convictions for both false imprisonment and kidnapping without comment). Mills makes no contention that false imprisonment is not such an included offense and, indeed, requests the reduction.

      . The indictment charges first degree murder. There is, however, as the State concedes, no evidence of premeditation, and the charge is sustainable only on a felony murder theory.

      . As was pointed out in Bissot v. State, 53 Ind. 408 (1896), and State v. Brown, 7 Or. 186 (1879), the application of a rule of technical termination of the felony would produce the absurd result that felony murder would be precluded in all instances where the killing followed the “completion” of the felony. The rule of technical termination has, however, been used to separate the crimes for sentencing purposes. See Hearns v. State, 378 So.2d 70 (Fla.3d DCA 1979).

      . Under this analysis, kidnapping or false imprisonment, themselves continuous crimes, must always support a felony murder when the killing occurs during the victim’s captivity. And where the death of a kidnapped infant occurs as a result of the abandonment of the child, the defendant’s abandonment of the child consigning it to almost certain death is a felony murder, not an abandonment of the kidnapping. LaMarca v. People, 3 N.Y.2d 452, 165 N.Y.S.2d 753, 144 N.E.2d 420, remittitur amended, 3 N.Y.2d 933, 167 N.Y.S.2d 955, 145 N.E.2d 892, cert. denied, 355 U.S. 920, 78 S.Ct. 351, 2 L.Ed.2d 279 (1957).

      . Some confusion has apparently arisen from the use of language which mixes presence at the commission of the felony with presence at the killing. See, e.g., Hite v. State, supra, at 772 (where the court stated that a defendant must “be personally present aiding and abetting the commission of the felony when the killing occurs”); Lowery v. State, 375 So.2d 1075 (Fla.4th DCA 1980) (where the court, although dealing with a classic accessory before the fact charged with second degree felony murder, defined the issue as being whether “an individual who aids and abets the commission of the underlying felony but who is not present at the murder can be convicted pursuant to said statute”); Marcum v. State, supra, at 977 (where the court, although dealing with a classic principal in the second degree, read Hite to require personal presence “at the scene when the killing occurred,” and distinguished Hite on the ground that “[ejven the Hite case does not require that the homicide must be committed within the range of vision of the felons engaged in the perpetration of the underlying felony.”) (all emphasis supplied). Presumably, Goodwin v. State, infra, removes any confusion.

      .Mills’ co-defendant Taylor was the beneficiary of the pre-Hegstrom ruling in State v. Pinder, 375 So.2d 836 (Fla.1979), which we had read to require that the conviction for the underlying felony, not merely the sentence, be set aside. See Taylor v. State, 386 So.2d 825 (Fla.3d DCA 1980).


author: PER CURIAM.

text:
    Stanley B. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1934.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.
    On Rehearing Nov. 20, 1981.

      Jerry Hill, Public Defender and Geoffrey A. Foster, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, a juvenile, was charged with three counts of attempted first degree murder, two counts of robbery, one count each of kidnapping, aggravated battery, sexual battery and trespass with a firearm. After accepting appellant’s plea of nolo conten-dere, the trial judge adjudged him guilty of the offenses charged and sentenced appellant to seven concurrent life sentences for each of the attempted murders, the robberies, the kidnapping and the sexual battery. He also sentenced appellant to fifteen years for the aggravated battery and five years for the trespass with a firearm, both concurrent with the life sentences and each other.

Appellant contends that the trial court committed error in not sentencing him pursuant to section 39.111(6)(c), Florida Statutes (1979). He also contends that his sentence is excessive. We agree.

Failure to comply with the safeguards of section 39.111(6) is harmful error. Eady v. State, 388 So.2d 9 (Fla.2d DCA 1980). Appellant was not sentenced in conformance with that statute and, therefore, his sentences are invalid.

Also, appellant’s sentences for attempted first degree murder are excessive. The maximum sentence for attempted first degree murder is thirty years. § 777.04(4)(a), Fla.Stat. (1979). His three life sentences for attempted first degree murder were improper.

Accordingly, the judgment is affirmed, but the sentences are reversed and remanded with instructions to resentence appellant pursuant to section 39.111(6) and within the proper maximum sentences.

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

ON MOTION FOR REHEARING

PER CURIAM.

For the first time on motion for rehearing, the state cites to us the applicability of section 775.087, Florida Statutes (1979), to support the three life sentences imposed upon conviction of three counts of attempted first degree murder. We agree that this statute is applicable. We regret the state did not see fit to cite it earlier or that we on our own did not determine its applicability.

By reason of that oversight, we were nearly led into the same apparent mistake that the supreme court was in King v. State, 390 So.2d 315 (Fla.1980), which was relied upon by the appellant in this cause to support his position that the life sentences were excessive. In King, the state conceded error in the imposition of a life sentence for attempted first degree murder committed while in possession of a weapon. By reason of the state conceding error and apparently failing to cite section 775.087, the supreme court there found there was no statutory provision authorizing life imprisonment for attempted first degree murder. Section 775.087 clearly provides that any first degree felony when committed with a weapon or firearm is enhanced to a life felony. We also note that that statute also provides that any person who is convicted of murder or sexual battery or an attempt to commit those crimes while in possession of a firearm shall be sentenced to a minimum mandatory term of imprisonment of three years.

The information here clearly charges appellant with the commission of the offenses while in possession of a firearm, and appellant’s plea of nolo contendere was to “all crimes charged.” The judgment and sentences of the court do not reflect specifically that the appellant was adjudicated guilty of the offenses while in possession of a firearm, though that is the obvious intent of the court as evidenced by its imposition of the life sentences. This court has previously recognized that the judgment and sentence must so reflect. Griffen v. State, 384 So.2d 324 (Fla.2d DCA 1980).

Accordingly, the judgment is affirmed but the case is remanded for correction of the judgment and sentences to reflect that the crimes of which appellant was convicted were committed while in possession of a firearm, and for compliance with section 39.111(6), Florida Statutes (1979). In so doing, the trial court should consider whether the three year minimum mandatory sentence provided in section 775.087 is applicable.

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


author: OTT, Judge.

text:
    Carolyn J. SRODES, Appellant, v. ELLIE’S, INC., a Florida Corporation, and Snelling & Snelling, Inc., a Florida Corporation, Appellees.
    No. 80-1380.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 1981.
    Rehearing Denied Dec. 21, 1981.

      Daryl J. Brown and Robert P. Rosin of Rosin, Abel, Band, Brown & Russell, Chartered, Sarasota, for appellant.
    John M. Strickland of Livingston, Patterson & Strickland, P. A., Sarasota, for appel-lees.
   OTT, Judge.

Appellant filed this action to recover sums allegedly due her by virtue of appel-lee’s breach of her employment contract. Appellee’s motion to dismiss was granted when the trial court concluded that none of the four counts stated a proper cause of action. We think that Counts I and III were sufficient to withstand the motion, and so we reverse the dismissal of those counts.

COUNT I

Count I alleged that appellee hired appellant as a design consultant, with appellant to receive a percentage of appellee’s gross profit on all furnishings sold by appellant, and a percentage of all fees charged by appellee for designing services performed by appellant. It was further alleged that thereafter appellant obtained a written commitment from one Anacomp, Inc. to purchase some $77,000 in office furnishings and to pay a fee of some $3,000 for appellant’s services in designing the office layout and coordinating the furnishings. Before that order could be filled, however (according to the complaint), appellee terminated appellant’s services and then induced Anacomp to revise its order downward to only $13,000 worth of furnishings, with no design fee.

Appellant argues that the allegations of Count I were sufficient to state a cause of action entitling her to the agreed percentage of the design fee and the agreed percentage of the profit which appellee would have earned on the original furnishings order. We agree that a cause of action has been stated, but the amount due appellant is, of course, still an open issue.

We believe, and appellee does not seriously dispute, that appellant would at least be entitled to her commission on any gross profit earned by appellee on the $13,000 final billing to Anacomp. That being the case, it was error to dismiss Count I, even though the amount owing may prove nominal. Hutchison v. Tompkins, 259 So.2d 129 (Fla.1972).

Appellant’s entitlement to a commission on the original $77,000 order will depend on her ability to persuade the trial court that appellee engineered the reduction of the order solely for the purpose of depriving appellant of her commission, and not because of other legitimate business considerations. We note, for what it is worth, that appellant’s design services appear to have been rendered as a part of the work-up she did for the purpose of making the sale. Under those circumstances, it would seem that there was always a calculated risk that the customer would simply change its mind and reject all or part of the proposal, which could leave appellant’s services uncompensated. According to her complaint, the employment agreement was that appellant was to receive a percentage of the profits on appellee’s actual billings, not on the orders appellant may have obtained. Therefore, we are of the opinion that in order to recover under the instant circumstances, appellant would have to prove that appellee’s subsequent dealings with Ana-comp were motivated by a desire to euchre appellant out of her just recompense. Appellant’s theory that appellee should pay the entire commission, because it permitted Anacomp to avoid the obligation of its written commitment, ignores the practicalities of the business world. Compromise, understanding, and cooperation (and a shrewd eye toward future business) legitimately influence the resolution of many problems by means other than litigation.

Similarly, appellant’s right to her percentage of the original design commission of $3,000 will depend on appellee’s reasons for letting Anacomp renege on its original order. We cannot answer that question because no evidence has been presented in this case. It may be, too, that the final order of $13,000 normally would have carried with it a reasonable design charge, and that appellee didn’t make one because most of it would have been payable to appellant anyhow. In that case, appellee should not enjoy the fruits of appellant’s labor without paying her, even though Ana-comp was released from any such obligation. But that is a matter for the trial court to determine from the evidence.

COUNT III

Count III of the complaint alleged that appellant generated sales of furnishings to certain of appellee’s customers, but that appellee has persistently refused to render an accounting of such sales so that appellant can determine whether she is entitled to commissions. The complaint prayed for-an accounting and if it revealed that appellee was indebted to appellant under their agreement, judgment for such sum as might be found due.

We see no legal insufficiency in that pleading. We have no way of knowing whether appellant can prove her allegations, but she clearly has the right to try.

The dismissal of Counts I and III of the complaint is REVERSED. In all other respects, the order appealed from is affirmed. The case is REMANDED to the court below for further proceedings in accordance with this opinion.

GRIMES, A. C. J„ and RYDER, J, concur.

ON APPELLANT’S MOTION FOR REHEARING

PER CURIAM.

Appellant feels that our opinion unfairly and improperly imposes upon her the “intolerable burden” of proving, at the trial we ordered, that appellee’s subsequent dealings with Anacomp were motivated by a desire to deprive her of her commission. She asserts that she should be required to sustain the burden of proving only a binding contract between appellee and Anacomp. That prima facie case would entitle her to a full commission, she contends, unless appellee sustains its burden of convincing the trier of fact that it acted in good faith, for recognized and acceptable business purposes.

Appellant makes a persuasive argument, but she overlooks her own version of the terms of the employment agreement relied upon in her complaint. She alleged that she was to receive certain percentages of the design fees and gross profits invoiced by appellee on the sales she generated. Webster and standard business usage agree: An invoice is a written account of merchandise sent to a purchaser.

Under an arrangement such as that, establishing merely that appellant generated an order for merchandise would give rise to nothing more than a potential for sales and design commissions. It would furnish a basis only for anticipation that appellant might later become entitled to payment. To state a normal cause of action under the contract she relies upon, appellant would have to allege that Anacomp was in fact “invoiced” by appellee for the original order and design fee. It is our understanding, from the record on appeal in this case, that appellant is unable to make such an allegation.

Therefore, we reasoned that appellant could state a cause of action for entitlement to payment of the full commission only by alleging (and proving) that she would have become entitled to those commissions had not appellee fraudulently arranged a reduction of the order for the primary purpose of eliminating her interest.'

Our opinion does not impose a burden of proof upon appellant — she assumed it herself when she stated the terms and conditions of her employment contract.

Appellant’s Motion for Rehearing is DENIED.

GRIMES, A.C.J., and OTT and RYDER, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Gilbert SAVER, Appellant, v. HYATT CORPORATION, d/b/a Sarasota Hyatt House Hotel, Appellee.
    No. 81-804.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 1981.
    Rehearing Denied Dec. 8, 1981.
    Wayne C. Hall, of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P. A., Venice, for appellant.

      Samuel J. Swisher of Swisher, Voigt, Silver, Elkins & Boedecker, P. A., Sarasota, for appellee.
   HOBSON, Acting Chief Judge.

Appellant Gilbert Saver appeals a final judgment, entered after a nonjury trial, finding that he was an exempt administrative employee of appellee Hyatt Corporation and, therefore, not entitled to overtime pay allegedly due under the Fair Labor Standards Act. 29 U.S.C. § 201 et seq. We reverse.

Appellant was hired in November of 1976 as a “general maintenance mechanic” for the Sarasota Hyatt House Hotel. His starting salary was $200 per week and he was told he would be working basically a forty-six (46) hour week. Appellant testified that the chief engineer promised to pay him overtime for hours worked in excess of forty-six in any given week. Appellant did have some limited supervisory duties over the other employees in the engineering department. Appellant wore a uniform and spent the majority of his time doing physical repair work with his tools. He testified that out of a ten-hour day, nine and one-half of those hours would be spent working with tools. His immediate supervisor — the chief engineer — testified that appellant spent approximately seventy-five per cent of his time working with tools.

During appellant’s employment, his job title was changed to “assistant chief engineer;” however, there was no testimony concerning any change in his job duties.

In June of 1977, appellant was told by the chief engineer that he would have to start punching a time clock and that he was to be paid overtime for hours worked in excess of forty-six per week. He was given a memorandum stating that he was to be paid overtime. Appellant began punching a time clock and weekly time cards were kept of his hours. In September of 1978, appellant was fired for leaving the hotel at a time when the chief engineer felt he should have stayed to effectuate repairs.

Appellee contends that appellant was employed by it in a bona fide administrative capacity within the meaning of 29 U.S.C. § 213(a)(1) and the regulations issued thereunder; and that he consequently is exempt from the overtime compensation benefits of 29 U.S.C. § 207. The burden clearly is upon the employer affirmatively to show that the employee is within the scope of the exemption. Brennan v. Great American, Inc., 477 F.2d 292 (5th Cir. 1973).

To be exempt administratively, appellant’s primary duty must have consisted of the performance of office or nonmanual work directly related to management policies or general business operations of his employer or his employer’s customers, which includes work requiring the exercise of discretion and independent judgment. See 29 C.F.R. § 541.2. The general definition of “primary duty” is found at section 541.103: “[I]n the ordinary case it may be taken as a good rule of thumb that primary duty means a major part, or over 50%, of the employee’s time.”

Although intended for white collar employees, section 541.2 does not completely prohibit performance of manual work by an administrative employee. However, if the employee performs so much manual work that he cannot be said basically to be a white-collar employee, he does not qualify for exemption as a bona fide administrative employee, even if the manual work he performs is directly and closely related to the work requiring the exercise of discretion and independent judgment. In Reeves v. IT&T Corp., 357 F.Supp. 295 (W.D.La.1978), the court stated:

Thus, it is obvious that employees who spend most of their time using tools, instruments, machines, or other equipment, or in performing repetitive operations with their hands, no matter how much skill is required would not be bona fide administrative employees within the meaning of § 541.2.

Here, there was testimony from the hotel’s chief engineer that appellant spent approximately seventy-five per cent of his time working with tools. Thus, appellant falls directly in the description of section 541.2.

Moreover, the discretion and independent judgment that appellant exercised in his employment was the type discussed in section 541.207 which explains the discretion and independent judgment requirement:

(a) In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The term as used in the regulations in Subpart A of this part, moreover, implies that the person has the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance.
(b) The term must be applied in the light of all the facts involved in the particular employment situation in which the question arises .... o
(c) Distinguished from skills and procedures;
(1) Perhaps the most frequent cause for misapplication of the term ‘discretion and independent judgment’ is the failure to distinguish it from the use of skill in various respects. An employee who merely applies his knowledge in following prescribed procedures or determining which procedure to follow or who determines whether specified standards are met or whether an object falls into one or another of a number of definite grades, classes, or other categories, with or without the use of testing or measuring devices, is not exercising discretion and independent judgment within the meaning of § 541.2. This is true even if there is some leeway in reaching the conclusion, as when an acceptable standard includes a range or a tolerance above or below a specific standard.

Appellant is an air-conditioning and refrigeration mechanic and had some technical schooling in the field. Clearly, he merely used a skill and his knowledge to follow prescribed procedures in his repair work around the hotel.

Based on the above, we conclude that appellee has not met the burden of proving appellant was administratively exempt. The final judgment is reversed and the cause remanded to the trial court for further proceedings consistent with our holding.

REVERSED and REMANDED.

GRIMES and DANAHY, JJ., concur.


author: NESBITT, Judge.

text:
    Remy MORALES, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1188.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    Rehearing Denied Jan. 6, 1982.

      Raymond E. Badini, John H. Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and JOR-GENSON, JJ.
   NESBITT, Judge.

We reject the appellant’s contention that his conviction for making a counterfeit Indiana operator’s license and having instruments for making counterfeit operators’ licenses contrary to Section 831.29, Florida Statutes (1979) was procured under a constitutionally vague and overbroad statute. Specifically, the defendant contends that “in the similitude” fails to put an individual on notice as to the proscribed activity.

All doubts as to the validity of a statute are to be resolved in favor of its constitutionality. Hamilton v. State, 366 So.2d 8 (Fla.1979); Brown v. State, 358 So.2d 16 (Fla.1978). It is an immutable principle that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Cline v. Frink Dairy Co., 274 U.S. 445, 459, 47 S.Ct. 681, 684, 71 L.Ed. 1146, 1153 (1927); Falco v. State, 407 So.2d 203 (Fla.1981). In Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881, 884 (Fla.1972), the court stated: “To make a statute sufficiently certain to comply with constitutional requirements, it is not necessary that it furnish detailed plans and specifications of the acts or conduct prohibited. Impossible standards are not required.” Accord, State v. Lindsay, 284 So.2d 377 (Fla.1973). Where the language conveys a sufficiently definite warning to express the proscribed conduct when measured by common understanding and practices, no constitutional violation has occurred. See, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); State v. Dye, 346 So.2d 538 (Fla. 1977).

Applying these principles to the present case, we find that the statute sufficiently defined the proscribed conduct. Webster’s New International Dictionary 2340 (2d Ed. 1960) defines “similitude” as “one that is like or similar, a facsimile, counterpart” and it is a synonym for likeness. In the overall context of the statute, the word has a clear meaning, and that meaning will be given effect. City of Miami v. Kayfetz, 92 So.2d 798 (Fla.1957). It should not be given a construction which is unduly technical. State v. Allen, 362 So.2d 10 (Fla.1978). Consequently, the prohibited conduct was sufficiently described in the statute so that a person of common intelligence could discern the activities which were proscribed.

We also reject the appellant’s contention that the evidence was insufficient to support his conviction because of the many discrepancies between the official Indiana license and the license made by the defendant. According to the testimony, the following dissimilarities from the official license was discernible: (1) the counterfeit license was smaller; (2) it did not contain an issue date; (3) it contained no Indiana State seal; (4) the coloration of the background was different; (5) there was no re-examination date; (6) the borders were different; (7) a different numbering system was employed; (8) there was no section for anatomical gifts; and (9) the word “pursuant” was misspelled “persuant.”

In support of the state’s position, the Director of Drivers Licenses and Examinations of the State of Indiana testified that if he had been shown the license in question he would have believed it to be valid. A City of Miami police officer rendered the same opinion.

The degree of similarity between the counterfeit and the official license was a question of fact resolved below in favor of the state. On appeal, we must assume that the trier of fact believed the testimony most damaging to the defendant and that he drew conclusions from these facts most unfavorable to the defendant. E.Y. v. State, 390 So.2d 776 (Fla. 3d DCA 1980); Parrish v. State, 97 So.2d 356 (Fla. 1st DCA 1957), cert. denied, 101 So.2d 817 (Fla.1958). This court will not substitute its judgment for that of the trier of fact nor pit its judgment against those determinations properly rendered below. E.Y. v. State, supra. All conflicts and reasonable inferences therefrom are resolved to support the judgment of conviction. Wooten v. State, 361 So.2d 167 (Fla. 3d DCA 1978); Dawson v. State, 338 So.2d 242 (Fla. 3d DCA 1976). Consequently, we will not disturb the findings of the trier of fact.

The other points raised by this appeal are without merit. The defendant’s judgments of conviction and sentences are affirmed.


author: FERGUSON, Judge.

text:
    Theodore BORDERS, as Personal Representative of the Estate of Hilda Mae Borders, deceased, and on behalf of Theodore Borders, Appellant, v. LIBERTY APARTMENT CORPORATION and Bonded Rental Agency, Inc., Appellees.
    No. 80-2116.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    Rehearing Denied Jan. 6, 1982.

      Ser, DeCardenas, Levine, Busch & Allen and M. Carmen Dominguez, Miami, for appellant.
    A. John Goshgarian and Howard Hoch-man, Conroy & Simberg and Bruce F. Sim-berg, Miami, for appellees.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

Theodore Borders as personal representative of the Estate of Hilda Mae Borders and individually sued appellees alleging that negligence of appellees in maintaining premises resulted in the death of Hilda. Appellees moved for summary judgment claiming that Theodore Borders was not the proper personal representative of the Estate of Hilda Mae Borders and was not a beneficiary under the wrongful death statute as he was not married to the decedent on the day of the incident in question either by common-law or otherwise.

The trial court entered summary judgment in favor of appellees, Liberty Apartment Corp. and Bonded Rental Agency, Inc., and against appellant, on the grounds that there was no issue of material fact that appellant, Theodore Borders, was never married to the decedent, Hilda Mae Borders. We reverse.

Appellant filed an affidavit in opposition to appellees’ motion for summary judgment alleging that when he stated in deposition that he did not discuss marriage with Hilda, he thought he was being asked whether they had ever discussed getting married formally, such as before a preacher or notary. Appellant had also stated in the deposition and in the affidavit that he and the decedent had a common-law marriage and considered themselves married. The question as first propounded in the deposition was, “Did you ever discuss going to a minister or getting formally married?” Ap-pellee relies on that part of the deposition testimony following this question and ignores appellant’s testimony both prior and subsequent to this section that Hilda used' his surname and that they considered themselves married. Viewed as a whole, the record supports appellant’s explanation to the effect that he thought the first question was merely being repeated. We find appellant’s explanation a credible one which should have been considered by the court. The affidavit and deposition raise a genuine question of fact as to whether appellant was ever married to the decedent. See, e.g., Croft v. C.G. York, 244 So.2d 161 (Fla. 1st DCA 1971). Cf. Elison v. Goodman, 395 So.2d 1201 (Fla.3d DCA 1981) (appellants failed to bring selves within exception arising when there is a credible explanation by the affidavit as to discrepancies between earlier and later opinions); Tri-County Produce Distributors, Inc. v. Northeast Production Credit Association, 160 So.2d 46 (Fla. 1st DCA 1963) (summary judgment proper where no explanation of conflict between deposition testimony and later filed affidavits).

The testimony of Theodore Borders who claimed to be the common-law husband of the deceased and who sought damages against the tort-feasor is admissible. The prohibition of Section 90.602, does not apply. See, e.g., Smart v. Foosaner, 169 So.2d 508 (Fla.3d DCA 1964). Moreover, appel-lees may not use appellant’s testimony as the basis of their action for summary judgment, then preclude appellant from relying on that same testimony to oppose the motion for summary judgment. See, e.g., Barber v. Adams, 208 So.2d 869 (Fla.2d DCA 1968); Bordaos v. Kimmel, 139 So.2d 506 (Fla.3d DCA 1962). Accordingly, the trial court erred in relying on In re Silverman’s Estate v. Lerner, 163 So.2d 321 (Fla.3d DCA 1964) as authority for excluding record evidence in order to find that the record failed to prove that appellant was married to Hilda Mae Borders.

Appellant testified at disposition that his first wife Wilma died in Dade County, Florida before he started to live with Hilda. The fact that neither the Florida nor Georgia Department of Health and Rehabilitative Service has a certified record of death for a former wife of appellant creates no conclusive presumption that this wife is still alive or that she was alive on the date of the reported common-law marriage of appellant to the deceased. The Florida records were searched only by the name of Wilma Atkinson Borders; the Georgia records were searched by the name of Wilma Atkinson or Wilma Atkinson Borders. There is testimony in the record that Wilma was living with a man when she died and it is not known whether she used his name or her maiden name.

It is well established in Florida that when a person has allegedly been married twice there is a strong presumption of the validity of the second marriage. The evidence in this case concerning the invalidity of the subsequent marriage to the decedent was not enough to justify the entering of a summary judgment against the plaintiff. See Sikes v. Guest, 170 So.2d 322 (Fla.2d DCA 1965).

Reversed and remanded.

      . Appellant claims to have consummated a common-law marriage to the deceased in 1962 when such marriages were recognized in Florida law, Chaachou v. Chaachou, 73 So.2d 830 (Fla.1954), and that the relationship continued until Hilda died in 1978. By enactment of Section 741.211, Florida Statutes (1967), the legislature invalidated any common-law marriage entered into after January 1, 1968.


text:
    The STATE of Florida, Appellant, v. Cora Lee WILLIAMS, Appellee.
    No. 80-2409.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    Rehearing Denied Jan. 6, 1982.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Norman Gerstein and Robin Greene, Asst. Public Defenders, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Diaz v. State, 387 So.2d 978 (Fla.3d DCA 1980), review denied, 397 So.2d 779 (Fla.1981); Ferguson v. State, 379 So.2d 163 (Fla.3d DCA 1980); State v. Smith, 376 So.2d 261 (Fla.3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980); McKnight v. State, 341 So.2d 261 (Fla.3d DCA 1977), cert. denied, 348 So.2d 953 (Fla.1977).