text:
    Euton Clyde LYONS, a/k/a Tony Johnnie Clyde, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1378.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    ' Bennett H. Brummer, Public Defender and Stephen Cahen, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The defendant’s conviction on count III of the indictment, possession of a firearm by a convicted felon, is affirmed; however, the trial court’s imposition of a mandatory minimum sentence for this crime was improper and is hereby reversed. Accordingly, the requirement that the defendant serve a minimum of three years on count III shall be deleted from the sentencing order.

In all other respects, the judgment appealed is affirmed. See Williams v. State, 346 So.2d 67 (Fla.1977); Brown v. State, 206 So.2d 377 (Fla.1968); Parker v. State, 389 So.2d 336 (Fla. 4th DCA 1980); Rollins v. State, 369 So.2d 950 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1126 (Fla.1979); Robinson v. State, 338 So.2d 1309 (Fla. 4th DCA 1976); Matera v. State, 218 So.2d 180 (Fla. 3d DCA), cert. denied, 225 So.2d 529 (Fla.1969).

Affirmed in part; reversed in part with directions.


source: Caselaw Access Project

author: PEARSON, DANIEL S., Judge.

license: Public Domain

text:
    R. A. B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2200.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Bennett H. Brummer, Public Defender, Peter Raben, Asst. Public Defender and Charles E. Reiter, Legal Intern, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PEARSON, DANIEL S., Judge.

R. A. B. was adjudicated delinquent upon findings that he unlawfully entered a dwelling and committed a second-degree grand theft therein. The homeowner testified that he found his house broken into and property missing. The only other evidence presented was the juvenile’s confession.

R. A. B. first contends that his confession should have been suppressed, because the State did not establish that he, prior to confessing, was given Miranda warnings. In the context of this case, that contention presents two issues — first, were Miranda warnings required; second, were they shown to have been given.

The juvenile confessed in the office of Mr. Paroti, the administrator of Boys Town. The confession was made in the presence of Paroti and a Detective Reese. The juvenile, suspected of committing the crimes with which he was later charged, was questioned by both Paroti and Reese. Paroti testified that the juvenile had been, as of the date of the confession, in the temporary custody of Boys Town for eight months. We judicially note that Boys Town is a privately funded institution. While it is possible that the Department of Health and Rehabilitative Services has, on occasion, placed juveniles in this facility, the circumstances under which R. A. B. was lodged in Boys Town are not reflected in this record, and we will not speculate that he was there under some court order as a result of some prior juvenile offense.

In the absence of a showing that R. A. B. was, at the time of his confession, in the custody of Boys Town because of a prior and unrelated juvenile offense, he is not entitled to the benefits of the Florida Supreme Court’s holding in Young v. State, 234 So.2d 341 (Fla.1970), which, following Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), makes quite clear that where a person suspected of committing an offense is in custody, albeit for an unrelated offense, he is entitled to Miranda warnings prior to being questioned.

But the inapplicability of the per se Mathis-Young rule does not end the inquiry if, in fact, it is shown that that interrogation itself was custodial. The burden of making that showing was R. A. B.’s and no such showing was made. The record does not reflect how R. A. B. was called or came to be in Paroti’s office. The office itself (described as containing a door, two windows, three chairs, a desk, and a cabinet) does not suggest a custodial atmosphere. There is no showing that any pressure was exerted upon R. A. B. to remain during the questioning or even what part of the questioning was done by Paroti and what part by Detective Reese. The meeting during which the confession was taken concluded in thirty minutes. In short, there is nothing to indicate that the juvenile did not voluntarily go to Paroti’s office, or that once there he was not free to leave, or even that he held such a belief. We conclude, therefore, that R. A. B. was not entitled to Miranda warnings, and his confession was admissible in the absence of such warnings.

R. A. B.’s second point on this appeal is that even if the finding that he committed delinquent acts be affirmed, the order of adjudication must be reversed and the cause remanded to the trial court for a new determination whether adjudication should be entered or withheld. This point is well taken.

We have no difficulty concluding that the trial court’s decision to adjudicate R. A. B. a delinquent was based upon the impermissible consideration that the juvenile had asserted his Fifth Amendment right to remain silent, and his concomitant rights to plead not guilty and to have the State prove his guilt beyond a reasonable doubt at a trial. In explaining its decision to adjudicate R. A. B. a delinquent, the trial court stated:

“I think he was going to tell the truth. Had he come in and told me the same thing he told Mr. Paroti, I would have withheld adjudication and he could have been put on probation.
“You know my procedure and you know he could have admitted and not had a delinquency record.”

The law is clear that a court cannot, as the court did here, impose a penalty which unnecessarily discourages the assertion of such rights. McEachern v. State, 388 So.2d 244 (Fla. 5th DCA 1980); Gillman v. State, 373 So.2d 935 (Fla. 2d DCA 1979); Thomas v. United States, 366 F.2d 941 (5th Cir. 1966). See also Weathington v. State, 262 So.2d 724 (Fla. 3d DCA 1972). The very fact of adjudication, apart from disposition, has potential collateral effects which are not harmless. See, e. g., § 39.032(2)(d)4, Fla. Stat. (1980) (prior adjudication taken into account in detention decision); § 39.-09(2)(c)7c, Fla.Stat. (1980) (prior adjudication taken into account in waiver determination); see also Masci v. State, 397 So.2d 984 (Fla. 3d DCA 1981).

Accordingly, the finding that R. A. B. committed the delinquent acts charged is affirmed, and the order adjudicating him delinquent is reversed. The cause is remanded to the trial court for a new determination whether to withhold adjudication under Section 39.10(2), Florida Statutes (1980), or to enter an order of adjudication under Section 39.10(3), Florida Statutes (1980). Since the trial judge who adjudicated R. A. B. no longer serves on the court, it is unnecessary to order that the matter be assigned to a different judge.

Affirmed in part; reversed in part, and remanded with directions.

      . Compare United States v. Wiggins, 509 F.2d 454 (D.C.Cir.1975), and State v. Cole, 252 Or. 146, 448 P.2d 523 (1968) (although defendant in custody on unrelated offense, defendant not suspected of commission of crime about which being interrogated).

      . The necessity for Miranda warnings which arises from this preexisting custody is not obviated by evidence, as in Young, that the defendant was not suddenly thrust into a foreign or hostile environment, that the interrogation was conducted in other than a jail cell, that no promises or threats were made to the defendant, or even that the defendant was told that he could get up and leave the room at any time. When the pre-existing custody status exists, even express permission to leave is “an illusory freedom, within the context of [the defendant’s] imprisonment,” Young v. State, supra. See also Lee v. State, 362 So.2d 692 (Fla. 4th DCA 1978). Thus, under the per se Mathis-Young rule, once it appears that the defendant is a suspect and is in custody for an unrelated offense, Miranda is activated.

      . In State v. Dodd, 396 So.2d 1205 (Fla. 3d DCA 1981), we held that a defendant, asserting the invalidity of a confession because of the wrongful seizure of his person, bears the initial burden of establishing that he was seized. Where a person, as R. A. B. here, is questioned not, as Dodd, in a police station, his burden of showing he was in custody is obviously harder to satisfy.

      . We do not suggest by this that Miranda warnings were not given, but merely that the State did not prove (or rather was prevented by the trial court from proving) that they were given. The State sought to have Paroti testify that Detective Reese advised R. A. B. of his Miranda rights and that R. A. B. understood and waived those rights. Notwithstanding that (1) Reese’s statements to R. A. B. were not hearsay, since not offered to prove the truth of the matter contained in such statements; and (2) R. A. B.’s answers, although offered to prove the truth of the matter contained in such statements, were his own statements offered against him and thus exceptions to the rule making hearsay inadmissible, see, e. g., § 90.-803(13), Fla.Stat. (1979), the trial court sustained defense counsel’s hearsay objections to Paroti’s proposed testimony. It later appeared that Paroti could recall only that Reese read to R. A. B. from a card. Although this testimony was insufficient to establish that Miranda warnings were given, see Long v. State, 231 So.2d 33 (Fla. 3d DCA 1970); Woods v. State, 211 So.2d 248 (Fla. 3d DCA 1968); compare Tudela v. State, 212 So.2d 387 (Fla. 3d DCA 1968) (testimony that defendant was read his rights in absence of objection), the State offered to refresh Paroti’s recollection by showing him a Miranda card which Reese purportedly read to R. A. B. Again, the court erroneously sustained the defendant’s hearsay objection. A writing used to refresh recollection need not be one which was made by or previously seen by the witness, see § 90.613, Fla. Stat. (1979); Garrett v. Morris Kirschman & Company, Inc., 336 So.2d 566 (Fla.1976); Chaudoin v. State, 118 So.2d 569 (Fla. 2d DCA 1960); see generally McCormick, Evidence at 16 n. 54 (2d ed. 1972) (comparing decisions requiring that witness have authored or have ability to authenticate writing with those which permit any writing to be used). It thus appears that were it not for these erroneous rulings of the trial court, the State might have been able to establish that R. A. B. was given Miranda warnings.
      Fortunately for the State, our holding, supra, makes these erroneous rulings inconsequential. We do, however, take this occasion to inform the State that the Florida Rules of Appellate Procedure expressly afford the State the right to appeal a “[r]uling on a question of law when a convicted defendant appeals his judgment of conviction.” Fla.R.App.P. 9.140(c)(1)(H). See Sands v. State, 328 So.2d 563 (Fla. 3d DCA 1976) (holding State has authority to cross-appeal under Section 924.07(4), Florida Statutes (1975), containing identical language). The State, whether out of ignorance or arrogance, consistently does not avail itself of this right of cross-appeal. Yet frequently the State is wrongfully precluded from introducing evidence which, if admitted, would be sufficient to sustain a conviction. When the State fails to cross-appeal in such a case, a defendant, entitled in actuality to a new trial, may receive the windfall of an acquittal. It is understatement to say that such a failure, indeed malfeasance, does not serve the proper administration of justice.


author: PER CURIAM.

text:
    Rodney Deane STEVENS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1004.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Bennett H. Brummer, Public Defender and Alan M. Medof, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, FERGUSON and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   PER CURIAM.

On the basis of Darden v. State, 329 So.2d 287 (Fla.1976); Zamot v. State, 375 So.2d 881 (Fla.3d DCA 1979); and Wingate v. State, 232 So.2d 44 (Fla.3d DCA 1970), the conviction and sentence are AFFIRMED.


author: SCHWARTZ, Judge.

text:
    Matthew Leo FAISON, a/k/a Leo Jackson, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2250.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.

      Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

Faison appeals from his multiple convictions for offenses committed during the course of separate sexual attacks on two women which occurred within a few minutes of each other. In the first incident, the defendant dragged a receptionist from the front of her office — which faced the street through a large glass window — first to the rear of the room, where he raped her, and then into the restroom, where he did so again. Shortly thereafter, while attempting to evade the pursuit of the employer of that victim, Faison entered through the back door into the kitchen of a nearby private home. After asking the lady of the house, who was seated there, for a drink of water, he grabbed and forcibly removed her from the kitchen to a rear bedroom, where he raped that woman as well.

Faison’s most substantial argument challenges his convictions of two counts of kidnapping. Faison was found guilty of these crimes on the ground that he had “forcibly ... abduct[ed] [each victim] against h[er] will ... with intent to ... [c]ommit or facilitate [the] commission of [the] felony” of sexual battery. Section 787.01(l)(a)2, Florida Statutes (1979). Relying on language in Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980) and the holdings in Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980) and Simpkins v. State, 395 So.2d 625 (Fla. 1st DCA 1981), Faison contends that the short movements of his victims were both merely “incidental” to and had no “independent significance” from the sexual batteries themselves and therefore could not constitute the separate crimes of kidnapping. We disagree. Even assuming, ar-guendo, the validity of these cases’ interpretation of the Florida statute, we conclude that the facts relative to each of the abductions involved here qualify as kidnappings under that view.

The Harkins case explicitly — and the other cited decisions reflect the same conclusion — adopts the holding of State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976) as reflective of the Florida law on the issue before us. In Buggs, the court stated its holding as follows at 547 P.2d 731:

[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Each of the separate episodes involved in this case conforms with these requirements.

(a)The movements of both victims were effected by substantial force and violence inflicted by Faison to overcome their resistance and to make them to go where he wanted. It cannot be said, therefore, that the asportations were either slight, inconsequential or merely incidental to the sexual batteries which followed.

(b) These movements were not inherent or necessarily required in the commission of the sexual batteries, which could have been accomplished on the spot without any as-portation whatever. See, e. g., State v. Williams, 111 Ariz. 222, 526 P.2d 1244 (1974); Wilson v. State, 253 Ind. 585, 255 N.E.2d 817 (1970).

(c) Both abductions were from an area where the rape could have been more easily observed through a window — in the first victim’s office, and the second one’s kitchen — to the “relative seclusion,” State v. Buggs, supra, at 547 P.2d 731, of the rear and restroom of the office and the bedroom of the home, respectively. Moreover, each asportation removed the victim from access to a door — again, in the office and in the kitchen — through which she might have escaped. Hence, each made the sexual battery substantially easier to commit and substantially reduced the danger of detection. Compare, Simpkins v. State, supra (mere forced movement from bedroom to living room to accomplish sexual battery not kidnapping). The fact that relatively short distances were involved makes no difference. Our conclusions to this effect and that each set of Faison’s acts was indeed a kidnapping, are supported by the Buggs case itself, which holds:

Applying the principles above to our present case, we hold that the conduct of the defendants constituted kidnapping under our statute. The Penners were accosted outside the Dairy Queen, at the fringe of the parking lot, where they were subject to public view. Mrs. Penner had the day’s receipts with her, and the robbery could have been accomplished then and there. If the money was inside, the defendants could have gone in after it without taking the Penners with them. Instead, the defendants forced the Pen-ners to return to the relative seclusion of the inside of the store. That movement, slight though it was, substantially reduced the risk of detection not only of the robbery but of the rape. Except in the matter of distance, which we are holding to be irrelevant, it was as if the defendants had seized the Penners at home and forced them to return to the store before the robbery and rape. There was, in our view, a taking and confinement to ‘facilitate’ the commission of the robbery and rape. [e. s.]

547 P.2d 731-732. See, generally, Annot., Kidnapping — Asportation for Other Crime, 43 A.L.R.3d 699 (1972), and cases collected at 709-712, and 1980 supplement at 39-40. See also, Harkins v. State, supra (tying rape-murder victim to bed kidnapping); Ayendes v. State, 385 So.2d 698 (Fla. 1st DCA 1980) (confinement in victim’s own home in attempt to aid defendant’s escape from prison kidnapping); compare, Friend v. State, supra; Simpkins v. State, supra.

The other points raised by the defendant present no error, with one exception. In the second incident, Faison was convicted of both first degree burglary— that is, burglary of the victim’s home and making an assault upon her within, a life felony under Section 810.02(2)(a) — and the same sexual battery which constituted the assault involved in the burglary charge. On the authority of McRae v. State, 383 So.2d 289, 293 (Fla.2d DCA 1980), which so determined the identical question, we hold that, under State v. Pinder, 375 So.2d 836 (Fla.1979), the sexual battery conviction cannot stand. While Faison was not sentenced on the latter charge, Hegstrom v. State, 388 So.2d 1308 (Fla.3d DCA 1980), review granted, Fla. Case no. 59,893 (1981), requires that the adjudication for that offense be set aside. Accord, e. g., Jenrette v. State, 390 So.2d 781 (Fla.3d DCA 1980).

For these reasons, the adjudication of guilt of sexual battery as alleged in Count VI of the information is vacated. The judgment below is otherwise entirely

Affirmed.

      . 787.01 Kidnapping

      (l)(a) ‘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.
      3. Inflict bodily harm upon or to terrorize the victim or another person.
      4. Interfere with the performance of any governmental or political function.

      . We emphasize that, since the more stringent criteria of these cases are satisfied by the present facts, we are not required to pass upon the correctness of the determinations in Har-kins, Friend and Simpkins that a forcible aspor-tation or detention of the victim with the intent to commit a felony is insufficient, without more, to establish the independent crime of kidnapping. Hence, this opinion is not to be taken as an endorsement of that conclusion.
      It should be pointed out that, although the holding to this effect in State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976) was adopted by Harkins and Friend as a proper interpretation of the Florida law, our statute is significantly broader than the one involved in Buggs. As the Harkins opinion noted, at 380 So.2d 528, but did not consider decisive, the present Kansas statute requires an abduction or confinement with the intent to “facilitate flight or the commission of any crime.” K.S.A. 21-3420(b). § 787.01(l)(a)2, on the other hand, requires an intent either to “commit or facilitate commission of any felony.” [e. s.] Under statutes like ours, it has been widely held, apparently by a majority of the jurisdictions which have considered the question, that it is the fact of any forcible movement or confinement with the forbidden felonious intent — regardless of its length, distance or purpose — which constitutes kidnapping. E. g., State v. Williams, 111 Ariz. 222, 526 P.2d 1244, 1246 (1974) (“That the victim was forced to move from one room to another in defendant’s house, a small distance of asportation as opposed to being moved miles away, is not a dispositive fact.”); State v. Morris, 281 Minn. 119, 160 N.W.2d 715 (1968); cases collected, Annot., Kidnapping-Asportation for Other Crime, 43 A.L.R.3d 699, 702 (1972), and 1980 supplement at 35. Indeed, that was the law in Kansas itself under the prior version of its statute, which was much more akin to Florida’s than the amended version treated in Buggs. State v. Ayers, 198 Kan. 467, 426 P.2d 21 (1967) (rape victim forcibly moved 11 feet; kidnapping conviction affirmed). The Harkins-Friend-Simpkins view of our statute is also called into question by Sec. 775.021(4), Fla.Stat. (1979), which provides that “[w]hoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode .... ”
      Finally, we specifically express our grave doubts about the wisdom of the statement in Buggs, quoted in Harkins, and apparently adopted in Simpkins that “[t]he removal of a rape victim from room to room within a dwelling solely for the convenience of the rapist is not a kidnapping.” We are not nearly so willing to accommodate the “convenience” of a rapist or any other criminal by excusing any additional offense he may commit in order to indulge his personal tastes and predilections. The language of Wilson v. State, 253 Ind. 585, 255 N.E.2d 817, 821-22 (1970) is compelling in this regard:
      Appellant suggests that this court adopt a principle whereby any restraint and transportation of the victim would be considered only as an integral part of the charge of rape and not as a separate charge of kidnapping. In other words, that because the rape in this case also included a kidnapping or transportation under restraint he should not be prosecuted separately for that crime. Carrying the argument further it seems the victim was not carried very far to constitute a real kidnapping and it was merely incidental to the rape. Of course, the argument fails because a transportation or kidnapping is not necessarily involved in a rape.... We do not approve any principle which exempts one from prosecution from all the crimes he commits because he sees fit to compound or multiply them. Such a principle would encourage the compounding and viciousness of the criminal acts.

      . We regard only the confinement and slight movement involved in the force asserted by the offender against the body of the victim in the commission of the act itself to be “inherent in the nature” of a rape or sexual battery. But cf., Simpkins v. State, supra.

      . See State v. Register, 380 So.2d 543 (Fla. 5th DCA 1980); Sec. 810.02, Fla.Stat. (1979).

      . As in Damon v. State, 397 So.2d 1224 (Fla.3d DCA 1981), note 9, and Monroe v. State, 396 So.2d 241 (Fla.3d DCA 1981), we point out the possibility that Pinder has been undermined by the later decisions of Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1932, 63 L.Ed.2d 715 (1980) and Albernaz v. United States, 350 U.S. -, 101 S.Ct. 1137, 67 L.Ed,2d 275 (1981).


author: BASKIN, Judge.

text:
    The STATE of Florida, Appellant, v. Iselene SMITH, Appellee.
    No. 79-2312.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.

      Janet Reno, State Atty. and Arthur Joel Berger, Asst. State Atty., for appellant.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Is evidence seized without probable cause or reasonable suspicion during a warrant-less United States Customs search admissible in a Florida trial court? We hold that such evidence is admissible and reverse the order of suppression entered by the circuit court.

Returning to the United States after a trip to Ecuador defendant Smith landed at the Miami International Airport. A customs official conducting a random check of incoming baggage inspected defendant’s train case. Upon opening the case, he detected the odor of glue and then discovered a false bottom under which cocaine was concealed. Defendant was arrested and charged with possession of a controlled substance, importation of a controlled substance and trafficking.

Following a hearing on defendant’s motion to suppress, the trial court ruled that State v. Schloss, 341 So.2d 1024 (Fla.3d DCA 1977) required a customs search to be predicated upon reasonable suspicion of criminal activity. Finding no reasonable suspicion, the court suppressed the evidence seized from defendant Smith. On appeal the state, citing 19 U.S.C. § 1582, contends the trial court erred in applying the standard of reasonable suspicion to a border search. Defendant responds that customs officials may search only when deemed necessary or appropriate, 19 C.F.R. § 162.6 (1980), and that even if the search were proper under federal law, states may impose a higher standard. We agree with the argument advanced by the state.

According to 19 U.S.C. § 1582, all persons coming into the United States shall be liable to search.

§ 1582. Search of persons and baggage; regulations
The Secretary of the Treasury may prescribe regulations for the search of persons and baggage and he is authorized to employ female inspectors for the examination and search of persons of their own sex; and all persons coming into the United States from foreign countries shall be liable to detention and search by authorized officers or agents of the Government under such regulations.

In United States v. Schreer, 600 F.2d 5 (3d Cir. 1979), the court contrasted the applicability of 19 U.S.C. § 1582 with 19 U.S.C. § 482, which permits searches at a distance from the border when reasonable cause for suspicion of illegal importation exists. In Scheer the court noted:

The Supreme Court, in United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1972), reviewed the ‘longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country.’ Id. at 616, 97 S.Ct. at 1979. Concluding its survey, the Court stated:
Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be ‘reasonable’ by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless ‘reasonable’ has a history as old as the Fourth Amendment itself. We reaffirm it now.
Id. at 619, 97 S.Ct. at 1980 (footnote omitted). See Torres v. Puerto Rico, 439 U.S. 815, 99 S.Ct. 74, 58 L.Ed.2d 106 (1979). In view of this authority, we join the Fifth and Seventh Circuits in upholding the constitutionality of a search conducted at the border, or equivalent entry point, pursuant to § 1582, notwithstanding the absence of probable cause or even a quantum of individualized suspicion, but merely because the item was entering the United States from abroad, [footnotes omitted].

United States v. Scheer at 7. See United States v. Chaplinski, 579 F.2d 373, cert. denied, 439 U.S. 1050, 99 S.Ct. 731, 58 L.Ed. 711 (5th Cir. 1978).

We find no merit in defendant’s argument that the State of Florida has imposed a higher standard on searches and seizures conducted at its borders. Grubbs v. State, 373 So.2d 905 (Fla.1979). The standard is the one imposed under the Fourth Amendment of the United States Constitution, that of reasonableness. State v. Hetland, 366 So.2d 831 (Fla.2d DCA 1979), approved on other grounds, 387 So.2d 913 (Fla.1980). We hold that a valid United States war-rantless border search is a reasonable search within the dictates of the Florida Constitution. Insofar as the dicta in State v. Schloss, supra, imposes a requirement of reasonable suspicion for a customs search and conflicts with our decision, we recede from its statement but approve its holding that probable cause is unnecessary for a routine customs search. We note that Florida as well as the United States is a sovereign with a right to self-protection against persons and property entering its borders illegally.

For these reasons, we reverse the decision of the trial court suppressing the evidence seized from defendant Smith and remand for further proceedings.

      . § 482. Search of vehicles and persons.
      Any of the officers of persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, or upon such vehicle or beast, or otherwise, and to search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law; and if any such officer or other person so authorized shall find any merchandise on or about any such vehicle, beast, or person, or in any such trunk or envelope, which he shall have reasonable cause to believe is subject to duty, or to have been unlawfully introduced into the United States, whether by the person in possession or charge, or by, in, or upon such vehicle, beast, or otherwise, he shall seize and secure the same for trial.


author: HENDRY, Judge.

text:
    The STATE of Florida, Appellant, v. Norman PARKER, Jr., Appellee.
    No. 80-345.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.

      Janet Reno, State Atty. and Arthur Joel Berger, Asst. State Atty., for appellant.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   HENDRY, Judge.

Appellee, defendant below, has been indicted for a series of crimes in this jurisdiction. The state sought to introduce into evidence a handgun previously seized by the Washington, D.C. police in conjunction with a shooting involving the same defendant in that jurisdiction in 1978. The court below, at a suppression hearing, ordered that the handgun seized in Washington could not be introduced into evidence. The state has appealed that suppression order.

To determine the propriety of the suppression order, we must therefore review the circumstances on the evening of August 23, 1978 when the Washington, D.C. police seized the subject handgun. On that evening a barroom shooting was reported over the police radio and a lone suspect and his car were described. By automobile registration records and a physical description of the suspect, police traced the defendant to his residence near where the shooting occurred. Ms. Yerkin, an occupant of the house, opened the door to the officers who then entered without permission. Ms. Yer-kin and another female occupant were ordered to stay outside on the front porch of the house. Several officers fanned out around the premises while others made a cursory search of the house. Not long after the police arrived, the defendant, unarmed and with hands raised above his head, appeared from a stairwell to the basement at the rear of the house and announced his surrender. He was then frisked, handcuffed, arrested, and transported from the scene.

After the defendant was removed, the police carefully searched the house and the fenced back yard for evidence. The police then entered the yard next door where they noticed a revolver underneath a ladder next to the basement stairwell in the defendant’s yard. Photographs admitted into evidence show the gun stuck into a crevice of the stairwell next to the fence. An officer was then posted to guard the weapon until evidence technicians arrived to conduct a thorough search of the area. During this time there were approximately eight or nine policemen combing the premises for evidence. The handgun and other evidence discovered inside the house were seized although no warrant was ever obtained.

On this appeal the state’s primary argument is that the trial court erred in suppressing the handgun because the defendant failed to establish a reasonable expectation of privacy in the area where it was found. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

In order to establish a zone of privacy upon which the government may not intrude without first obtaining a search warrant, a person must show: (1) an actual expectation of privacy in the area in question, and (2) that the expectation of privacy is in an area that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Shapiro v. State, 390 So.2d 344 (Fla.1980), cert. denied, — U.S.-, 101 S.Ct. 1519, 67 L.Ed.2d 819 (1981).

Measured against this standard, we conclude that the defendant established a reasonable expectation of privacy in the Washington, D.C. residence and that this expectation extended to the back yard area where the gun was seized. This result is fully supported by the trial court’s conclusion of law that the defendant had a reasonable and legitimate expectation of privacy in the residence which extended to the enclosed back yard and to the stairwell area adjoining his residence. Moreover, the defendant, by concealing the gun in the crevice, “exhibited an actual (subjective) expectation of privacy.” Smith v. Maryland, supra, 442 U.S. at 740, 99 S.Ct. at 2580; Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 588 (1967) (Harlan, J., concurring). The defendant has thus fulfilled the first prong of the two-part test for invoking the protection of the fourth amendment.

The defendant has also satisfied the second requirement that the expectation of privacy be in an area recognized as reasonable by society, since one’s dwelling has long been regarded as constituting a zone of privacy. This theory is rooted partly in real and personal property concepts and partly in society’s recognition of a person’s right to act as he wishes in certain places. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Morsman, 394 So.2d 408 (Fla.1981); Norman v. State, 379 So.2d 643 (Fla.1980).

This expectation of privacy one has in his home has traditionally been extended to include the area surrounding and related to the dwelling. See Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974) (privacy expectation of defendant who occupied one unit of a four-unit apartment building held to extend to enclosed rear yard or curtilage not normally used as a common passageway); Norman v. State, 379 So.2d 643 (Fla.1980) (holding that tobacco barn within fenced farm was included in expectation of privacy); State v. Morsman, 394 So.2d 408 (Fla.1981) (defendant’s expectation of privacy held to extend to rear unenclosed yard of residence); Huffer v. State, 344 So.2d 1332 (Fla. 2d DCA 1977) (reasonable expectation of privacy in hothouse located behind defendant’s house, notwithstanding the fact that it was constructed of clear plastic sheets). Accord State v. Johnson, 301 N.W.2d 625 (N.D.1981) (reasonable expectation of privacy in an unenclosed area to one side of defendant’s home).

What a person seeks to preserve as private may be constitutionally protected despite the fact that it is in an area accessible to the public. Katz v. United States, supra. Accordingly, there is even more compelling justification for finding a zone of privacy in the area where the defendant hid the gun since it was in an enclosed back yard not accessible to the public. Generally, the back yard is considered more private than the front because passersby cannot view this area. See Fixel v. Wainwright, supra; State v. Morsman, supra; Norman v. State, supra. Although the defendant’s back yard was visible to his neighbors, he still had a reasonable expectation of privacy there as to the public in general, especially as to the location of the revolver, since it was secreted in a crevice not readily visible to the untrained eye. Compare with Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA), cert. denied, 361 So.2d 833 (Fla.1978) where the defendant had marijuana plants growing out in the open, exposed to view. Consequently, we find that the defendant had an actual expectation of privacy in the back yard of his home, and that this area is recognized as a zone of privacy.

Having determined that the defendant may claim the protection of the fourth amendment, we must next decide whether the state has justified the intrusion by demonstrating an exception to the warrant requirement. Warrantless searches are “per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). The exceptions are “jealously and carefully drawn,” Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958), and the burden is on the state to demonstrate that the procurement of a warrant was not feasible because “the exigencies of the situation made that course imperative.” Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Norman v. State, supra; Hornblower v. State, 351 So.2d 716 (Fla.1977).

The state attempts to justify the search and seizure by reliance on several well established exceptions to the warrant requirement.

First, the state argues that the police action here was reasonable based on the existence of probable cause and exigent circumstances. Specifically, the state claims that a gun is a dangerous instrumentality and, knowing that a weapon was involved in the incident, the police were justified in locating it and removing it from the scene so no one would get hurt. This argument is specious. Officers were posted all over the property, and the possibility that someone would walk into a private, enclosed yard which was swarming with police and remove the gun was highly unlikely. The police had complete control of the property from the moment they arrived on the scene, and once the suspect was taken into custody, had ample time to secure a warrant while officers guarded the area.

The state also appears to rely on the “protective sweep” exception. However, the purpose of such a search when an arrest takes place is to check for possible accomplices, not evidence, and is justified only if necessary to allow officers to carry out the arrest without fear of violence. United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977); Newton v. State, 378 So.2d 297 (Fla. 4th DCA 1979), cert. denied, 389 So.2d 1115 (Fla.1980); Grant v. State, 374 So.2d 630 (Fla. 3d DCA 1979). In the present case, the police had no reason to believe that there might be anyone else present at the house other than the defendant and the two women — the broadcast had described a lone suspect and the police had already made a cursory check of the premises.

We also find inapplicable the state’s contention that the police were in hot pursuit of the defendant and were thus not required to obtain a warrant. Based on the fact that the extensive search of the premises which turned up the revolver did not even begin until after the defendant had been arrested, handcuffed, and taken away, the police were clearly not in “hot pursuit” of the defendant when they seized the gun.

Nor can this seizure be justified as incident to arrest. This exception is rationalized as necessary to seize weapons to prevent an assault on arresting officers and to prevent the destruction of evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Chimel restricts the scope of the search, however, to the person of the accused and the area within his immediate control. The search must also be contemporaneous with the arrest and not be remote in time or place, Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), and where, as here, the search begins after the accused is taken away and continues for some time thereafter, it is a general exploratory search and not incident to arrest. United States v. Bell, 457 F.2d 1231 (5th Cir. 1972).

The state next argues that the seizure of the gun was justified on the basis that it was in plain view. A warrantless seizure of evidence in plain sight is constitutionally permissible only where three requirements are met: (1) the evidence must be observed in plain sight without the benefit of a search, (2) the police must have a legal right to be where they are at the time of the observation, and (3) the police must have probable cause to believe that the evidence observed constitutes contraband or fruits, instrumentalities, or evidence of crime, (e. s.) Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 202, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Spinkellink v. State, 313 So.2d 666 (Fla.1975); Pomerantz v. State, 372 So.2d 104 (Fla. 3d DCA 1979), cert. denied, app. dism., 386 So.2d 642 (Fla.1980); Hansen v. State, 385 So.2d 1081 (Fla. 4th DCA 1980).

Assuming arguendo that the police had a legal right to be on the property next door when they spotted the gun, and had probable cause to believe that the revolver was an instrumentality of the crime, this justification must still fail because a general exploratory search was in progress at the time the gun was discovered. See Coolidge v. New Hampshire, supra; Pomerantz v. State, supra. The plain view doctrine may not be employed to extend a search until something turns up. The trial court found that the revolver was located only after the police conducted an extensive and thorough search of the defendant’s yard. As such, the gun was not discovered inadvertently and the seizure was unreasonable.

Finally, the state alleges that the defendant had abandoned the weapon, thus justifying the seizure. To constitute abandonment, the property must be discarded in a place where the person has no reasonable expectation of privacy, such as an open field, or public street. State v. Washington, 376 So.2d 1216 (Fla. 3d DCA 1979); State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979), cert. dism., 383 So.2d 1200 (Fla.1980). As established by the record and our finding that the defendant had a legitimate expectation of privacy in the premise, his placement of the gun in the stairwell crevice does not amount to abandonment.

For the reasons stated, and upon the authorities cited, we hold that the defendant had a legitimate expectation of privacy in the enclosed back yard of his residence where the revolver was found. In light of the state’s failure to establish a valid exception to the warrant requirement, the search and subsequent seizure of the revolver violated the defendant’s constitutional rights. Other points on appeal have been considered and found to be without merit. Accordingly, the trial court’s order suppressing the evidence is affirmed.

Affirmed.

      . The state challenges only the suppression of the handgun and the fruits thereof; no error is alleged with respect to suppression of the items seized from inside the house.

      . On review of a motion to suppress, a trial court’s findings of fact and conclusions of law are presumed correct, and in testing the accuracy of these conclusions an appellate court must interpret the evidence and all reasonable deductions and inferences which may be drawn therefrom in the light most favorable to the trial judge’s conclusion. Shapiro v. State, supra.

      .The trial court specifically found that the defendant resided at the house, ate his meals there, kept clothing and personal effects there, and continued to household expenses.

      . This is somewhat doubtful since the officers were no longer in hot pursuit when they went into the neighbor’s yard and thus had no greater rights than an ordinary citizen who would be considered a trespasser if there without consent of the owner. It is unknown whether the police obtained consent before going into the neighboring yard.


text:
    Chester MOORE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-520.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Bennett H. Brummer, Public Defender and Alan Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and PEARSON, DANIEL S. and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Bernhardt v. State, 288 So.2d 490 (Fla.1974); Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947); Holmes v. State, 311 So.2d 780 (Fla. 3d DCA 1975), cert. denied, 327 So.2d 32 (Fla.1976); Brown v. State, 305 So.2d 309 (Fla. 4th DCA 1974); Crossin v. State, 244 So.2d 142 (Fla. 4th DCA 1971).


text:
    D.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1108.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.

      Bennett H. Brummer, Public Defender and Lawrence J. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Owens v. State, 289 So.2d 472 (Fla. 2d DCA 1974); Lindsay v. State, 67 Fla. 111, 64 So. 501 (1914); Mancebo v. State, 350 So.2d 1098 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1217 (Fla.1978); Blitcb v. State, 194 So.2d 1 (Fla. 3d DCA 1967); Section 784.045(1), Fla.Stat. (1979).


text:
    SECURITY INSURANCE COMPANY OF HARTFORD, Appellant, v. COMMERCIAL CREDIT EQUIPMENT CORPORATION, Appellee, The Glassworks, Inc., Jay Marden and Richelle Marden, Cross-Appellants.
    No. 80-1449.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Rehearing Denied June 19, 1981.

      McDonald & McDonald and David McDonald, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and Carey A. Randall and Joan S. Buckley, Miami, for appellee.
    Nicholson, Bender & Chandler and Don G. Nicholson, Miami, for cross-appellants.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

An order granting summary judgment holding in effect that the mortgagee of an airplane was insured under a breach of warranty endorsement for loss of the aircraft confiscated by the Colombian government is the subject of this appeal by the insurer. We affirm upon a holding that exclusionary clauses in the insurance policy are inapplicable to the breach of warranty endorsement which provides coverage for the mortgagee. We do not decide either the insured owner’s right to recover under the policy or the applicability of policy exclusions to the owner’s claims.

In November, 1978 The Glassworks, Inc. purchased a Cessna airplane and financed it through Commercial Credit Equipment Corporation (CCEC). Glassworks obtained insurance from Security covering its interest in the aircraft. In addition, Glassworks obtained coverage of CCEC’s interest under a breach of warranty endorsement to the policy through a Telex binder later confirmed by letter. The binder provided “all risk ground and flight hull” coverage.

Subsequently, a Glassworks’ pilot flew the airplane to Colombia, South America, where it was detained by Colombian government officials who arrested and fined the crew. Although the crew was released, the airplane remained with the Colombian government.

CCEC sued to recover upon Glassworks’ default of its promissory note which had been guaranteed by Jay and Richelle Mar-den, cross-appellants. CCEC also sued the aircraft owners and Security for Security’s failure to pay under the breach of warranty endorsement. Security maintained that its policy insured direct physical loss, disappearance, or damage to the aircraft, not detention or restraint by a governmental authority. The trial court granted summary judgment in favor of CCEC against Security on the insurance question and against Glassworks and the Mardens on the promissory note.

Security’s appeal challenges the entry of summary judgment on the ground that genuine issues concerning the nature of the loss and the applicability of the exclusionary provisions of the policy remain to be decided. CCEC argues in response that the exclusions in the policy are inapplicable. It contends the breach of warranty endorsement constitutes a separate insurance agreement between Security and CCEC. Glassworks, Inc. and the Mardens agree with CCEC. They have, however, filed a cross-appeal to protect their position should summary judgment be reversed on the insurance question but affirmed as to their non-payment of the note. Security’s policy insuring Glassworks provides:[]

[Security] agrees with the insured, named in the declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the statements of the declarations and subject to the limits of liability, exclusions, conditions, and other terms of this policy to afford those of the following coverages as specified in the declarations.
INSURING AGREEMENTS
COVERAGE F — All Risks, Ground and Flight. To pay for any direct physical loss of or direct physical damage to the aircraft, including disappearance provided the aircraft is missing and not reported for sixty (60) days after take-off. COVERAGE G — All Risks, Ground only excluding Taxiing. To pay for any direct physical damage to the aircraft while not in flight or taxiing.
COVERAGE H — All Risks, Ground only including Taxiing. To pay any direct physical loss of or direct physical damage to the aircraft while not in flight.

The exclusions relied upon by Security include:

EXCLUSIONS
This policy does not apply and no coverage is afforded:
6. To any loss, or damage or legal liability directly or indirectly occasioned by, happening through or in consequence of war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation or nationalization or requisition or destruction of or damage to property by or under the order of any government or public or local authority.
With respect to Coverages F, G, and H (Physical damage):
17. To any loss or damage arising from war, invasion, civil war, revolution, rebellion, insurrection or war like [sic] operations, whether there be a declaration of war or not, or capture, seizure, arrest, restraint, or detention, or the consequences thereof or of any attempt thereat, or any taking of the property insured, or damage to or destruction thereof, by any government or governmental authority or agent whether secret or otherwise or by any military, naval or usurped power, whether any of the foregoing be done by way of confiscation, requisition or otherwise and whether in time of peace or war, and whether lawful or unlawful.

CCEC relies upon the breach of warranty endorsement furnished for an additional premium. It provides:

BREACH OF WARRANTY ENDORSEMENT COVERAGE F, G, OR H
In consideration of an additional premium of $130.00 (Inch), it is hereby agreed
Loss or damage, if any, to the aircraft insured under this policy shall be payable as interest may appear to the insured and Commercial Credit Equipment Corporation, Addision, Ill. whose interest in the aircraft is that of a Bailment Lessor, Conditional Vendor or Mortgagee or As-signee of Bailment Lessor, Conditional Vendor or Mortgagee and who hereinafter shall be called the Lienholder. This insurance as to the interests of the said Lienholder shall not be invalidated by any act or neglect of the Lessee, Mortgagor or Owner of the within described aircraft nor by any change in the title or ownership of . the property; provided, however, that the wrongful conversion, embezzlement or secretion by purchaser, mortgagor or lessee in possession under a mortgage, conditional sale or lease agreement of the aircraft insured is not covered under this policy, unless specifically insured against and premium paid therefore provided, also that in case the Lessee, Mortgagor or Owner shall neglect to pay any premium due under such policy the Lienholder shall, on demand, pay the same.
Nothing herein contained shall vary, alter or extend any provision or condition of the policy other than as above stated. (Emphasis added).

The breach of warranty contains its own exclusions, as indicated. The only insurance agreement delivered to CCEC was the Telex binder, later confirmed, providing all risk coverage with loss payable and breach of warranty clauses in favor of CCEC.

A breach of warranty endorsement creates a separate and distinct contract between a mortgagee and an insurance company. Glen Falls Insurance Co. v. Porter, 44 Fla. 568, 33 So. 473 (1902); Airvac Inc. v. Ranger Insurance Co., 266 So.2d 178 (Fla. 4th DCA 1972); National Casualty Co. v. General Motors Acceptance Corp., 161 So.2d 848 (Fla. 1st DCA 1964). Under a breach of warranty endorsement, a mortgagee is not affected by any act or default on the part of the mortgagor. A breach of warranty endorsement precludes a lien holder from being denied coverage for an “act [or] neglect of the mortgagor”. 5A J. Appleman Insurance Law and Practice § 3401 at 293 (1970). Thus, no issue exists regarding confiscation and whether Glass-works’ neglect led to loss of the airplane. Glassworks’ neglect may not negate CCEC’s coverage. Glen Falls Insurance Co. v. Porter, supra; National Casualty Co. v. General Motors Acceptance Corp., supra.

When exclusions contained in the main policy conflict with a breach of warranty endorsement, the breach of warranty endorsement prevails.

§ 42:686. — Relation to other policy provisions.
While all clauses of an insurance contract should be construed together, and the provisions of a mortgage clause must be read together and harmonized with the balance of the policy when reasonably possible, the mortgage clause must prevail in the case of an irreconcilable conflict between it and other provisions of the policy. That is, insofar as the provisions of the policy are inconsistent with an antagonistic to the clause protecting the interest of the mortgagee, they must be regarded as inapplicable in determining his rights, (footnotes omitted).

11 Couch on Insurance 2d § 42:686 (2d ed. 1963). We therefore conclude that exclusions in the main policy do not apply to the breach of warranty endorsement which provides coverage for “loss or damage”.

Next, the insurer, Security, contends that “loss” must be a direct physical loss, such as damage to the aircraft, but not its detention or destruction. We disagree. The breach of warranty endorsement uses the term “loss” not “direct physical loss”. When a policy provision remains undefined, common everyday usage determines its meaning. Fontainebleau Hotel Corp. v. United Filigree Corp., 298 So.2d 455 (Fla. 3d DCA), cert. denied, 303 So.2d 334 (Fla. 1974);[] Sanz v. Reserve Insurance Co., 172 So.2d 912 (Fla. 3d DCA 1965). The clear import of “loss” includes the loss sustained by CCEC. We therefore hold that no issue remains to be determined concerning whether the confiscation was a “loss” within the coverage of the breach of warranty endorsement; CCEC was insured for loss of the aircraft under these circumstances.

Security maintains that the Telex binder furnishing the breach of warranty endorsement was issued by another company and did not establish Security’s responsibilities. We find the argument to be without merit as the Telex binder was issued by an agent for Security in its behalf.

‘[T]he acts of an agent performed within the scope of his real or apparent authority are binding upon his principal, regardless of whether the principal had knowledge of the agent’s act.’ 18 Fla.Jur. Insurance § 318 at 292-93 (1971); e. g., Eagle Fire Co. v. LeWallen, 56 Fla. 246, 47 So. 947 (1908).

Fidelity & Casualty Co. of New York v. Britt, 393 So.2d 41, 42 (Fla. 3d DCA 1981).

The contention that the binder did not contain the entire contract is also without merit; the insured was issued no other policy until after the litigation commenced.

For these reasons, we affirm the trial court’s decision on both the appeal and cross-appeal.

      . The record does not contain the original policy between Security Insurance Company and Glassworks. Security has submitted a sample contract which it asserts is identical to the original. Glassworks and the Mardens contend they never received the policy. In light of our disposition of this cause, we need not decide whether this sample is identical to the original policy.

      . Overruled on other grounds in LaMarche v. Shelby Mutual Insurance Co., 390 So.2d 325 (Fla.1980).


text:
    Jose GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1741.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Rehearing Denied June 19, 1981.
    Bennett H. Brummer, Public Defender and Jill D. Touby, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. Hargrett v. State, 255 So.2d 298 (Fla. 3d DCA 1971); Wetherington v. State, 263 So.2d 294 (Fla. 3d DCA 1972); Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975); Codie v. State, 313 So.2d 754 (Fla.1975); Bristow v. State, 338 So.2d 553 (Fla. 3d DCA 1976); Atkinson v. State, 378 So.2d 324 (Fla. 3d DCA 1980); Teague v. State, 390 So.2d 405 (Fla. 5th DCA 1976); Bassett v. State, 392 So.2d 1025 (Fla. 5th DCA 1981); Knight v. State, 394 So.2d 997 (Fla. 3d DCA 1981); Fla.R.Crim.P. 3.390(d).


text:
    Natalie KELNER, Melinda Kelner, Ann Kelner and John Kelner, Appellants, v. Woodrew W. WOODY and Anna Woody, his wife, Hillcrest-By-The-Sea Associates, Inc., a Florida Corp., Jean Bigonesse and Yvette Bigonesse, his wife; Jean Metivier; Jean Beauchemin; George Kousoulas; Claude Durivage and Theresa Durivage, his wife; James Burke and Kathleen Burke, his wife; Lucien Lauzon; Fritz Meyer and Elsie Meyer, his wife; David Abraham and Sadie Abraham, his wife; Herbert L. Carrel and Beverly Carrel, his wife; Hector Echavarria and Nora Echavarria, his wife; Vincent J. Errico and Carol A. Errico, his wife; Louis Fortin and Georgeete Fortin, his wife; Robert E. Kennedy and Cheryl A. Kennedy, his wife; John W. Keeler and Helen B. Keeler, his wife; Roger Lauzon and Anita Lauzon; William Matouk and Louise Matouk, his wife; and William M. L. Matouk; Marcel Tessier; and Ahmad Saad and Faye Saad, his wife, Appellees.
    No. 80-1764.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.

      Kelner & Kelner and Milton Kelner, Miami, for appellants.
    Buchbinder & Elegant and Harris J. Buchbinder, Koppen & Watkins and George J. Lott, Miami, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Appellants, the plaintiffs below, seek review of the trial court’s dismissal of their third amended complaint for a declaratory decree against the appellees. Appellants, owners of land encumbered by two ninety-nine year leases, sought a declaration of their rights and status under the leases. Specifically, they sought to have the leases declared null and void.

The subject property, improved by two buildings containing twenty-four apartment units, devolved to the appellants by inheritance in 1972. Appellees Woody had previously acquired the leasehold interest in 1956, and in 1979 subleased this interest to appellee Hillcrest. The remaining appellees are individual owners of twenty-two of the twenty-four cooperative apartments.

In their complaint, appellants cite numer- . ous lease violations by all appellees. As a result of these violations, appellants notified the appellees that the leases were terminated and demanded possession in 1979 pursuant to the lease provision pertaining to default by the lessees. After the appel-lees failed and refused to surrender possession, appellants instituted this suit for declaratory judgment.

The trial court’s order dismissing appellants’ third amended complaint provides, inter alia:

It is apparent to this Court that the Plaintiffs are seeking to terminate a lease based upon alleged breaches of the 99 year lease, but refuse to seek the proper remedy or to comply with previous orders of the Court holding that such an action may not be maintained by an action for Declaratory Judgment. See Mayes Printing Company v. Flowers, 154 So.2d 859 (Fla. 1st DCA 1963), M & E Land Company v. Siegel, 177 So.2d 769 (Fla. 1st DCA 1965).

The purpose of the declaratory judgment act is to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations, and is to be liberally construed, section 86.101, Florida Statutes (1979); however, the granting of such relief remains discretionary with the court, and not the right of a litigant as a matter of course. North Shore Bank v. Town of Surfside, 72 So.2d 659 (Fla.1954); Palm Corporation v. 183rd Street Theatre Corp., 309 So.2d 566 (Fla. 3d DCA 1975); Garner v. De Soto Ranch, Inc., 150 So.2d 493 (Fla. 2d DCA), cert. denied, 156 So.2d 860 (Fla.1963). The court’s ruling is accorded great deference, and appellants have the burden of showing clear error for reversal. Groover v. Adiv Holding Co., 202 So.2d 103 (Fla. 3d DCA 1967). Based upon this standard, we conclude that appellants have not demonstrated that the trial court abused its discretion in dismissing their complaint, and therefore affirm the decision.

To trigger jurisdiction under the declaratory judgment act, the moving party must show that he is in doubt as to the existence or nonexistence of some right or status, and that he is entitled to have such doubt removed. Halpert v. Oleksy, 65 So.2d 762 (Fla.1953); Columbia Casualty Co. v. Zimmerman, 62 So.2d 338 (Fla.1952); Flagship Real Estate Corp. v. Flagship Banks, Inc., 374 So.2d 1020 (Fla. 2d DCA 1979); Swain v. Reliable Insurance Co., 200 So.2d 862 (Fla. 3d DCA 1967). We agree with the trial court that the present case falls squarely within the rule of M & E Land Company v. Siegel, 177 So.2d 769 (Fla. 1st DCA 1965), where the court was faced with the following issue:

Where the lease agreement provides in clear and unambiguous language that in the event of default the lessor shall at all times have the right to enter and retake possession of the leased property without interference from the lessee, is the allegation of a default and a refusal of the lessee to permit the lessor to enter and retake possession a sufficient showing of “doubt” as to lessor’s rights to state a cause of action for declaratory decree under Chapter 87 [now chapter 86] of the Florida Statutes, F.S.A.?

The court answered this query in the negative:

We are of the opinion that the amended complaint failed to allege a cause of action for declaratory decree under Chapter 87 of the Florida Statutes, F.S.A.

177 So.2d at 770. This reasoning applies to the instant case since the appellants have also alleged a default and a refusal by the lessees to allow them to retake possession. Although appellants have stated as a conclusion that they are in “doubt” as to their rights under the agreements, the amended complaint shows on its face that there is no doubt as to the meaning of the leases. Appellants have also failed to alleged the existence of any doubt as to the default clause of the agreements; to the contrary, they exercised their right to declare the lease terminated and demanded possession pursuant to that provision. See Columbia Casualty Co. v. Zimmerman, supra; Broward Drug Stores, Inc. v. Perini Land & Development Co., 170 So.2d 86 (Fla. 2d DCA 1964). Only after appellees refused to surrender possession did appellants become doubtful about their position — and doubts, uncertainty or insecurity as a basis for a declaratory decree must arise from the facts and circumstances creating them, and not merely from the state of mind or attitude of the movant. Garner v. De Soto Ranch, Inc., supra.

Appellants are actually seeking legal advice from the court as to the correct procedure to follow in litigating this case. The declaratory judgment act is not to be used as a tool to advise attorneys as to the proper path to pursue. May v. Holley, 59 So.2d 636 (Fla.1952); Deen v. Weaver, 47 So.2d 539 (Fla.1950). Nor is the act to be employed for the determination of purely factual issues under an instrument that is clear and unambiguous and presents no need for construction. Barrett v. Pickard, 85 So.2d 630 (Fla.1956); Perez v. State Automobile Insurance Ass’n, 270 So.2d 377 (Fla. 3d DCA 1972); Burns v. Hartford Accident & Indemnity Co., 157 So.2d 84 (Fla. 3d DCA 1963). Sub judice, the lease agreements are quite explicit, and the only existing issue — whether appellees are in breach of the agreement — is factual in nature and properly determinable in an action at law. Moreover, although the existence of other remedies does not preclude declaratory judgment, section 86.111, Florida Statutes (1979), it does bear on the proper exercise of the court’s discretion in granting such relief, and the court may decline to grant a declaratory decree where more appropriate redress is available. Stark v. Marshall, 67 So.2d 235 (Fla.1953); Bowden v. Seaboard Air Line R. R. Co., 47 So.2d 786 (Fla.1950); Lyons v. Capi, 188 So.2d 909 (Fla. 4th DCA 1966); Jacksonville Roofing Ass’n v. Local Union No. 435, 156 So.2d 416 (Fla. 1st DCA 1963), cert. denied, 162 So.2d 667 (Fla.1964); Garner v. De Soto Ranch, Inc., supra. As we have pointed out, appellants may bring an action for breach of the lease agreements.

In short, we find that appellants are not really in doubt as to their rights under the leases; rather, appellants claim a default in said leases by the acts enumerated in the complaint and are simply uncertain as to what course of action they should employ to enforce their rights. Since the lease agreement is clear and unambiguous, leaving only factual issues to be resolved, declaratory relief is not available to appellants. We conclude, therefore, that the trial court did not err in dismissing appellants’ complaint for failure to state a cause of action for declaratory judgment.

Affirmed.

      . Chap. 86, Florida Statutes (1979).


text:
    AMBASSADOR INSURANCE COMPANY, Appellant, v. HULL AND COMPANY, a Florida Corporation, Appellee.
    No. 80-1824.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Lanza, Sevier & Womack and Mel Lame-las, Coral Gables, for appellant.
    Dolan, Fertig & Curtis and Luke S. Brown and David Boone, Ft. Lauderdale, for appellee.
    Before SCHWARTZ and FERGUSON, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   PER CURIAM.

The order of the circuit court dismissing appellant’s third-party complaint for failure to prosecute is affirmed, with directions to the lower court to modify its order so as not to be a dismissal “with prejudice.”

Affirmed in part, reversed in part, and remanded.


text:
    BAY STEEL PRODUCTS COMPANY, a Florida Corporation, Appellant, v. MIAMI NATIONAL BANK, a National Banking Corporation, Appellee.
    No. 80-2102.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Rosenberg, Rosenberg, Reisman & Glass and Stephen H. Reisman, Miami, for appellant.
    Myers, Kaplan, Levinson, Kenin & Richards and Thomas F. Spencer, Jr., Miami, for appellee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Gendzier v. Bielecki, 97 So.2d 604 (Fla.1957); Kaufman v. Harder, 354 So.2d 109 (Fla. 3d DCA 1978), cert. denied, 359 So.2d 1215 (Fla.1978).


text:
    Joseph R. PROFFITT, D. V. M., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF VETERINARY MEDICINE, Appellee.
    No. 80-2152.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Paul A. Lehrman, Richard B. Bush, Tallahassee, Roger McClelland, Key West, for appellant.
    Boyd, Harris & Smith, Tallahassee, for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Affirmed. We find the Board properly reviewed the entire record and accepted the hearing officer’s findings of fact, adding as additional facts only those admitted to by appellant in the record. The Board acted within its discretion in determining the disciplinary penalty. § 120.57(l)(b)(9), Fla. Stat. (1979); § 120.68(10), Fla.Stat. (1979); § 474.214, Fla.Stat. (1979). Florida Real Estate Comm’n v. Webb, 367 So.2d 201 (Fla.1978); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), cert. denied, 346 So.2d 1256 (Fla.1977).


text:
    ALTON BOX BOARD CO., Appellant, v. MERLIN, INC., Appellee.
    No. 80-2274.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and R. Benjamin Reid, Miami, for appellant.
    McCormick, Bedford & Backmeyer and Jack Whitelock, Jr., Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Friedman v. Virginia Metal Products Corp., 56 So.2d 515 (Fla.1952); Mar-Len Housing Enterprises, Inc., v. Mar-Len Gardens “I" Corp., 302 So.2d 469 (Fla. 3d DCA 1974); Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


text:
    Dale F. LEONARD, Appellant, v. Karen Dean LEONARD, Appellee.
    No. 80-2347.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Imogene M. Synon, Key West, for appellant.
    Silver & Levy and Jay M. Levy, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Rosenberg v. Rosenberg, 371 So.2d 672 (Fla.1979), adopting dissent reported at 352 So.2d 867 (Fla. 3d DCA 1977); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980).


text:
    DIAMOND AUTO LEASING SYSTEMS, INC., a Florida Corporation, d/b/a Resnick Motors, Appellant, v. Roosevelt ALLEN, Appellee.
    No. 81-387.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Hersh & Bernstein and Jeffrey A. Bernstein, Miami, for appellant.
    Lieberman & Burke and Kenneth Of-gang, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Fla.R.Civ.P. 1.070(b) (1972); Over 30 Association, Inc. v. Blatt, 118 So.2d 71 (Fla.3d DCA 1960).


author: GLICKSTEIN, Judge.

text:
    Robert C. MALT and B. Ann Malt, his wife, Appellants, v. Samuel H. DEESE and Dorothy M. Deese, his wife, Appellees.
    No. 79-906.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1981.

      Robert B. Cook of DeSantis, Cook, Mee-han, Cohen, Gaskill & Silverman, P. A., North Palm Beach, for appellants.
    James R. Hustad of Hustad & Kurtz, West Palm Beach, for appellees.
   GLICKSTEIN, Judge.

This is a timely appeal by Mr. and Mrs. Malt, the lessors/sellers, of property in Manalapan, Florida, from a final judgment of specific performance, together with an award of attorneys’ fees in favor of Mr. and Mrs. Deese, the lessees/buyers. We affirm.

Mr. Malt is a homebuilder and real estate broker. The parties met in 1973 when Mr. Deese responded to an advertisement for the sale of a waterfront home in Manalapan owned by the Malts. Upon their meeting, Mr. Deese made known to Mr. Malt his ownership of Letters Patent for a foldable extension ladder and the existence of an Exclusive License Agreement he had given to International Leisure Industries, Inc. for the manufacture and sale of the ladder. Mr. Malt’s interest was apparently aroused to the extent that he let the Deeses into possession of the home without requiring any money from them.

On September 20, 1974, the- board of directors of International Leisure held a special meting which Mr. Deese attended as a guest. The following motion was passed unanimously:

That the board authorize payment of all arrears in royalties for the ladder to be paid to October 1974 at $200.00 per month. Additionally, a prepayment advance of royalties in the amount of $1,400 paid through May 31, 1975 — for eight months, at which time a minimum of $2,000 per month be paid Mr. Deese against accrued ladder royalties.

The record indicates that shortly thereafter Mr. Deese may have received $1,400 from the corporation and turned it over to Mr. Malt as some consideration for the Deeses’ occupancy from May, 1973, of the subject property.

Shortly after the September, 1974, board of directors meeting, Mr. Malt and Mr. Deese set about the preparation of a Lease, Contract and Assignment of Royalty Agreement, which was ultimately signed by Mr. and Mrs. Malt and Mr. and Mrs. Deese on December 10, 1974, a portion of which provides:

1) The closing shall be on or before the first day of October, 1979.
2) The purchase price shall be One Hundred Thousand Dollars ($100,000.00) cash, plus an additional cash amount equal to all taxes, hazard insurance and the interest of 8.2 per cent per annum paid on that certain first mortgage in the amount of $100,000 held by Community Federal Savings and Loan Association of Riviera Beach, Florida, encumbering said property. Said amounts shall be computed and prorated from the date Lessees took possession of the premises; to-wit: May 18, 1973, to the above date of closing.
3) It is understood and agreed that the royalties paid to Lessors pursuant to the terms of this agreement shall act as a reduction in said purchase price in the following manner:
(a) The first $100,000 of royalty payments shall be retained by Lessors.
(b) Any additional payments shall first be applied to all taxes, hazard insurance, and interest, as noted in Article 2 above then the remainder, if any, shall apply to the reduction of said $100,000 mortgage held by Community Federal Savings and Loan Association of Riviera Beach, Florida.
4) Provided that, prior to the above date of closing, royalty payments to the Lessors have at least equalled $200,000, Lessor shall convey title to the premises to the Lessees by a general warranty deed subject only to the easements and restrictions common to the neighborhood. In the event, by the date of closing, said royalty payments to the Lessors have not at least equalled the purchase price, including said taxes, insurance and interest, the Lessees, jointly and severally, hereby promise to pay forthwith to the Lessors, a sum of money equal to the full purchase price plus the taxes, insurance and interest referred to above less whatever royalty amounts have been paid to Lessors.

The Assignment of Royalties portion provides, in part:

1)Commencing from the date hereof, the Lessors shall be entitled to 100% of the royalties and any other monies or considerations paid by the licensee or its assigns under the terms of said exclusive license agreement. Said payment shall be for a period of five (5) years from the date of this agreement or until $200,000 has been received.
2) Subsequent to the time that the Lessor receives a total of $200,000 in accordance with the provisions and time requirements of this agreement, the Lessor shall receive 10 percent of all royalties and other considerations paid to the Lessee or its assigns as long as the Lessee or its assigns receive royalty payments for the attached ladder patent.
3) During the time period from November 1, 1974, until date of closing, October, 1, 1979, the Lessee shall pay to the Lessor all of the royalties received by the Lessee under its license agreement, not to exceed that amount as stated in Article 1, above, but not less than $400.00 per month, beginning November 1, 1974, and continuing until time of closing. In the event the Lessee leases the property to a third party during term of this agreement, and the Lessor at that time is not receiving $2,000 per month, all of the lease monies over $400.00 per month, which is guaranteed by the Lessee, shall be paid to the Lessor and applied to reduce the balance owed by Lessee to Lessor at which time the Lessor is receiving a minimum of $2,000 per month, any rentals received by the Lessee on the described property shall be retained by the Lessee.

After December 10, 1974, the Malts received exactly $400 per month from the Deeses. Unknown to the Malts, by June of 1975, International Leisure’s board of directors voted at a special meeting to take the corporation into voluntary bankruptcy. The ladder had never been produced because it had never met the standards of the Occupational Safety and Health Administration and the corporation lacked capital. In this time frame, Mr. Malt was exhorting Mr. Deese to do something about the fact that no royalty payments were being received other than $400 per month actually being paid by Mr. Deese. On July 11, 1975, Mr. Malt wrote the corporation demanding on behalf of Mr. Deese and himself, the $2,000 per month royalties described in the minutes of the board’s meeting on September 20, 1974.

Mr. Malt decided in 1976 to rescind the agreement with the Deeses. However, instead of refusing any further payments, the Malts continued to accept monthly payments from the Deeses of $400 through November, 1978, when the trial of this case commenced. Mr. Malt’s reason for accepting the $400 was that he wanted help in paying the mortgage on the home.

In January, 1977, the Malts instituted an action in the County Court in and for Palm Beach County to evict the Deeses on the bases that their monthly payments were tardy and that the Town or City of Point Manalapan had notified the Malts in November, 1976, that the Deeses were maintaining a nuisance by operating a garage in the home. The court found in favor of the Deeses.

On August 3, 1977, the Malts filed a complaint for cancellation of the December 10,1974, agreement, alleging failure of consideration in that the agreement was based on the expectation of royalty payments which were not made.

Mr. Deese wrote to Mr. Malt on August 19, 1977, and proposed that he purchase the property by assuming the existing $100,000 mortgage on the home and paying the difference between the then present balance and the $100,000 purchase price. Mr. Deese also offered to “pay all interest, insurance, and taxes incurred since the existing mortgage was placed on the property, less all payments made” to Malt. Mr. Malt rejected the proposal.

On October 14, 1977, Mr. Deese sent a second letter to Mr. Malt, stating that he would like to exercise the purchase option as set forth in the December 10, 1974, agreement. Mr. Malt indicated that he would require $200,000 as the purchase price, plus taxes, interest and insurance. As Mr. Deese was willing to tender only $100,000, plus taxes, interest and insurance, the purchase was not consummated. Thereafter, the Deeses counterclaimed for specific performance.

The Malts amended their complaint to include four counts: (1) cancellation of the subject contract for failure and gross inadequacy of consideration by reason of nonpayment of royalties to plaintiffs; (2) cancellation of the contract for gross inadequacy of consideration due to the worthlessness of the patent assigned to plaintiff; (3) cancellation for Deese’s misrepresentation that the patented product was a marketable commodity; and (4) reformation of the contract to reflect a purchase price of $200,000.

In their answer and affirmative defenses to the amended complaint, the Deeses pleaded payment as agreed, performance in good faith, and the Malts’ acceptance of payment in ratification of the agreement. At trial the Deeses were permitted to amend their affirmative defenses by the addition of “estoppel by judgment,” which referred to the earlier action in the county court.

The trial court denied both parties’ motions for directed verdict, and subsequently entered judgment in favor of the Deeses on the complaint and counterclaim. The final judgment ordered the Deeses to pay the Malts the following sum: $100,000 plus an additional amount equal to all taxes, hazard insurance and interest of 8.2% per annum paid on the existing mortgage (said amount prorated from May 18, 1973), less all sums paid as rent (from May 18, 1973, to date of conveyance). On the Malts’ motion for rehearing, the trial court ordered the conveyance by them to be free and clear of the existing mortgage. The Deeses’ attorney was awarded $9,000 in fees.

The Malts’ first point on appeal is that the trial court should have rescinded the December 10, 1974, agreement because of failure of consideration, inadequacy of consideration, and misrepresentation. Assuming each allegation to be true, the Malts, however, must be deemed to have ratified Mr. Deese’s actions. The Malts not only continued to accept the $400 monthly payments long after they had every reason to believe there would be no royalties forthcoming from International Leisure, they even instituted an earlier action, using the December 10, 1974, agreement as the basis therefor. In Scocozzo v. General Develop ment Corp., 191 So.2d 572, 579 (Fla. 4th DCA 1966), this court adopted the chancellor’s opinion as its own, saying:

“Rescission and cancellation are harsh remedies and therefore not favored by the courts. Courts of equity will not grant the remedy unless it clearly appears that the claimant is entitled thereto and has not by his own conduct waived his right to the relief claimed. Because of this view, slight circumstances, indicating a purpose or intent of the claimant to waive the right will bar relief. See Rood Company v. Board of Public Instruction, (Fla.1958) 102 So.2d 139-142. One of the most familiar applications of the rule relating to the acceptance of benefits arises in the case of contracts. It has been repeatedly held that a person by the acceptance of benefits may be estopped from questioning the validity and effect of a contract; and, where one has an election to ratify or disaffirm a conveyance, he can either claim under or against it, but he cannot do both, and having adopted one course with knowledge of the facts, he cannot afterwards pursue the other.”

See also Gladding Corp. v. Register, 293 So.2d 729 (Fla. 3d DCA 1974), cert. discharged 322 So.2d 911 (Fla.1975); Tonkovich v. South Florida Citrus Industries, 202 So.2d 579 (Fla. 2d DCA 1967).

Even were we to disregard the existence of waiver, the record supports the trial court’s decision upon the issue of rescission. First, we fail to see how there can be a failure of consideration when the parties’ agreement expressly provides for a minimum monthly payment of $400, which is exactly the sum received. Second, inadequacy of consideration must generally be considered in connection with other inequitable circumstances in order to justify cancellation of an instrument. Douglas v. Ogle, 80 Fla. 42, 85 So. 243 (1920). Sub judice, the other inequitable circumstances would presumably be Mr. Deese’s alleged misrepresentations. In the amended complaint the Malts alleged that Mr. Deese misrepresented the ladder to be marketable. The testimony on this point was as follows:

Q. Did Mr. Deese ever represent to you that the ladder was a marketable item?
A. Yes.
Q. How did he represent that to you?
A. Well, they gave me information that there were companies that had looked at the ladder, that they had been exposed to the ladder, that were interested in buying the ladder and that he had a contract with International Leisure Industries to manufacture and market the ladder and to pay him the royalties, and the company that International Leisure had engaged was in Hialeah to manufacture the ladder.

These representations of marketability described in the testimony are expressions of expectation or opinion, and as such are not actionable alone or in support of a claim of inadequate consideration. Smith v. Hollingsworth, 85 Fla. 431, 96 So. 394 (1923); Glass v. Craig, 83 Fla. 408, 91 So. 332 (1922). Appellants also attempted at trial to establish misrepresentation by showing that Mr. Deese knew the actual adverse financial condition of International Leisure and withheld such information from the Malts. Nonetheless, the Malts acted imprudently in expecting such disclosure from May, 1973, through December 10,1974, since there was ample time and opportunity for them to make their own inquiries and inspections or to forego any further involvement should the avenues of investigation be blocked. We note that while Mr. Deese has only a ninth grade education, Mr. Malt holds a bachelor’s degree in business administration, and attended a year of law school. In measuring the Malts’ right to rely on Mr. Deese, the Malts had some obligation to use reasonable diligence for their own protection. Fote v. Reitano, 46 So.2d 891 (Fla.1950). See also Gladding Corp. v. Register, supra.

The Malts’ second point is that the trial court should not have awarded the Deeses specific performance on the latters’ counterclaim. They first argue that the parties’ agreement is vague and inconsistent as to the purchase price in that paragraph 2 refers to a $100,000 figure while paragraph 4 refers to a $200,000 amount. The Deeses claim on appeal the purchase price to be $100,000 plus the Malts’ costs for interest, taxes and insurance, less a credit for the royalties received, while the Malts contend the figure to be $200,000 plus, and minus the foregoing costs and credit, respectively.

Resolution of the ambiguity is a question of fact and we are bound by the findings of the trial court as long as they are supported by the record. The trial court found the interpretation by the Dees-es to be correct. Mr. Deese’s testimony supports this finding:

Well, originally, [Mr. Malt] ... was only to receive five percent of the royalty with no mínimums, but then he determined that in order to enter into this contract, he felt that it was possible that, along the way, that the ladder might not produce all of the income that we thought that it would. So he would like to at least come out to where he would break even on the property, in the event that he didn’t make the profit. So we entered into the final agreement on the terms that he had, at that time he felt like he had around $100,000 in the home, and this hundred thousand dollar loan got him his money back. And at that time, he wanted to recover his hundred thousand dollars on the home, plus all of his interest, all the interest payments and taxes. In other words, he wanted it so the worst thing that could happen to him was that he would break even. And I agree it sounded reasonable, but he also wanted the chance to make a lot of money, if he was going to take a chance on not making any.

Based on its findings the trial court concluded, and we agree, that the contract, taken as a whole, is intelligible and sufficiently certain to entitle the Deeses to specific performance. See English v. Clark, 289 So.2d 33 (Fla. 1st DCA 1974).

The Malts further argue that the Deeses were not entitled to specific performance because they failed to tender the purchase price. However, it is only necessary that a vendee establish that he has been ready, willing and able to pay the purchase price. Glave v. Brandlein, 196 So.2d 780 (Fla. 4th DCA 1967); Horwitz v. Grovpac, 286 So.2d 576 (Fla. 3d DCA 1973), cert. denied 293 So.2d 365 (Fla.1974). We believe that Mr. Deese’s letter of October 14, 1977, to Mr. Malt considered together with the testimony of the Deeses’ sufficiently established the Deeses’ willingness and ability to pay the purchase price.

The Malts lastly contend that the Deeses are entitled to attorneys’ fees only if they prevail in their counterclaim for specific performance and not in the defense of the complaint for rescission and reformation. By our decision this point becomes moot. Nevertheless, we note that paragraph 7 of the parties’ agreement of December 10, 1974, states:

7) Either party failing to comply with the terms of this entire agreement shall pay all expenses, including a reasonable attorney’s fee, incurred by the other party because of that failure.

We construe the foregoing paragraph to mean that any action the Deeses were required to take to uphold as well as enforce the agreement entitled them to attorneys’ fees.

Based on the foregoing, the trial court’s decision is affirmed.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.

      . Mr. Malt’s business partner, Jimmy Casto, had an interest in the home until the first half of 1974. Mr. Casto is not a party in this action.

      . Mr. Deese’s license agreement provided for his being paid a royalty equal to five per cent of net sales with a minimum royalty of $200.00 per month.

      .Mr. Malt testified at trial that Mr. Deese could not afford to buy the home so the parties undertook discussions of Mr. Malt’s being paid royalties which Mr. Deese expected to receive from his licensing agreement with International Leisure.

      . Even without parol evidence we would probably reach the same conclusion based on the second sentence of paragraph 4 of the agreement. It provides that if the royalty payments have not equalled the purchase price, plus taxes, insurance, and interest, then the Deeses shall pay the purchase price, plus taxes, insurance and interest, less the royalty payments which have been paid by the Deeses.


author: DAUKSCH, Chief Judge.

text:
    Alice Haney WILBUR, Appellant, v. John Hearring WILBUR, Sr., Appellee.
    No. 80-534.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.
    Rehearing Denied June 5, 1981.
    Gary Pajcic of Pajcic, Pajcic, Dale & Bald, Jacksonville, for appellant.
    Frederick L. Rice of Rice & Kreidler, P.A., Jacksonville, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment in a marriage dissolution case. In a lengthy well-reasoned judgment, the trial court properly provided for all the legal needs of the parties and no abuse of the trial judge’s broad discretion in these matters has been shown. However, we find no legal authority for a trial court to set a declining schedule of periodic permanent alimony payments in the judgment. We find such a provision is without authority and must be reversed. Should a proper petition come before the court to either decrease or increase the alimony and a proper evidentiary showing be made, then the court will be able to adjust the payments. But that cannot be done in futuro. Kirchman v. Kirchman, 389 So.2d 327 (Fla. 5th DCA 1980); DeVito v. DeVito, 393 So.2d 1189 (Fla.3d DCA 1981). That part of the judgment which allows a future reduction in periodic permanent alimony payments is stricken and in all other respects the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

ORFINGER and COBB, JJ., concur.


author: COWART, Judge. SHARP, Judge,

text:
    STATE of Florida, Appellant/Cross-Appellee, v. F. E. J., a child, Appellee/Cross-Appellant.
    No. 80-432.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.
    Rehearing Denied June 11, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Evelyn C. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellant/cross-appellee.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Asst. Public Defender, Daytona Beach, for appellee/cross-appel-lant.
   COWART, Judge.

The juvenile court judge found that appellee, a child, was given Miranda warnings and that the child was of sufficient age and intelligence to comprehend his circumstances and such rights. Nevertheless, the judge granted a motion to suppress the child’s statement because (1) no inquiry was made by the police officers as to the child’s actual comprehension of his Miranda rights, (2) the child was taken into custody and to the police department for questioning for approximately one hour rather than being taken directly to a detention or crisis home (see § 39.03(3), Fla.Stat. (1979)) and (3) there was no adult notified or present to assist the child during the police questioning.

The police are only required to give Miranda warnings, not to make an evaluation of the accused’s comprehension of his rights. If age, intelligence, education and experience gives a child the ability to comprehend the meaning and effect of a voluntary incriminating statement and of the effect of a waiver, the juvenile may waive his rights under Miranda and make an admissible confession without the presence, or consent, of counsel, parents or other responsible adults to act on his behalf. T.B. v. State, 306 So.2d 183 (Fla. 2d DCA 1975). Section 39.03(3), Florida Statutes (1979), does not prohibit interrogation after the child is taken into custody and before a determination is made to release or detain the child. Doerr v. State, 383 So.2d 905 (Fla.1980). Here the child had the ability to comprehend his rights and their waiver and made a knowing and voluntary waiver of his rights and confession. The order granting the motion to suppress is reversed. Ap-pellee’s cross-appeal of the trial court’s interlocutory order denying a motion to dismiss is itself dismissed because this court does not have jurisdiction to consider it at this time. Fla.R.App.P. 9.140(b)(1); R.J.B. v. State, 394 So.2d 126 (Fla. 5th DCA 1980); State v. Clark, 384 So.2d 687 (Fla. 4th DCA 1980).

REVERSED and remanded for further proceedings.

DAUKSCH, C. J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I dissent because this record supports the trial judge’s finding that the juvenile’s confession was not voluntary, and therefore, his suppression of the confession should be sustained on appeal.

The juvenile was 15 years old. He had no adult who was friendly towards him, present during the one hour of questioning. His parents were (at that time) “adverse” to him, because the child’s mother was the person who had informed the police he was involved in the arson matter under investigation. He was detained at the police station over one hour, and then questioned in a small room at the sheriff’s department another hour by three investigators.

The court heard the tape of the child’s confession and the testimony of the police officers. It concluded that although the child was intelligent, and had been properly given “Miranda” warnings, he lacked the sophistication and the proper “mental ammunition” to know whether or not he should make a statement. The court felt the police should have inquired further than the basic Miranda warning form, to be sure the child comprehended the consequences of his statements.

Whether or not a knowing waiver of rights has occurred is a question primarily for the trial judge, and if there is support in the record, his determination should be sustained. He should make his determination based on the totality of the circumstances and where a child is involved, the State should bear a heavier burden to show the waiver was intelligently made. A perfunctory reading of Miranda rights, as printed on a card, may not be sufficient to enable a child to make an intelligent waiver where as in this case, the child was unsophisticated and estranged from his parents.

      . State v. Battleman, 374 So.2d 636 (Fla. 3d DCA 1979); State v. Riocabo, 372 So.2d 126 (Fla. 3d DCA 1979).

      . Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); T.B. v. State, 306 So.2d 183 (Fla. 2d DCA 1975).

      . T.B. v. State, 306 So.2d 183 (Fla. 2d DCA 1975); Arnold v. State, 265 So.2d 64 (Fla. 3d DCA 1972); cert. denied, 272 So.2d 817 (Fla.1973).