author: THOMPSON, Judge.

text:
    Howard Dwight DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. UU-332.
    District Court of Appeal of Florida, First District.
    May 5, 1981.
    John D. O’Brien, Panama City, for appellant.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

The appellant was charged with and convicted for second degree murder. On appeal, he argues that the trial court erred in giving its reinstruction to the jury on the elements of second degree murder. We agree and reverse.

The trial court initially gave the following Standard Jury Instruction (“SJI”):

Murder in the second degree is the killing of a human being by the perpetration of an act imminently dangerous to another and evincing a depraved mind regardless of human life, although without a premeditated design to effect the death of any particular individual.
An act is one imminently dangerous to another and evincing a depraved mind regardless of human life, if it is an act (or a series of acts) which:
1. A person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another;
2. Is done from ill will or hatred, spite or an evil intent, and
3. Is of such a nature that the act itself indicates an indifference to human life, [emphasis supplied]

Two hours and twenty minutes after the jury retired, the jury returned to the courtroom, and the following exchange took place:

THE COURT: All right, Mr. Foreman, you have a question?
FOREMAN OF JURY: Yes, sir.
THE COURT: Is it a question of law or a question of fact? Does it have to do with the law or does it have to do with the testimony?

FOREMAN OF THE JURY: The law.

THE COURT: And you can’t resolve it out of those written instructions?
JUROR: We are having great difficulty.
THE COURT: All right, what is it? What is the question?
FOREMAN OF THE JURY: As we were going through these we ran across this question ... in this statement:
“An act is one imminently dangerous to another and evincing a depraved mind regardless of human life if it is an act or a series of acts which:
1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another,
2. is done from ill wili, hatred, spite or an evil intent, and
3. is of such a nature that the act itself indicates an indifference to human life.”
THE COURT: And/or. And/or. Is that your problem, three? •
FOREMAN OF THE JURY: Yes, sir.
THE COURT: And/or. Either one of those.
JURY: Yes, sir.

After this exchange, the jury retired to the juryroom and then defense counsel immediately objected, stating that: “It takes all three of those elements to make a crime. You’ve got to take all three of those elements.” Defense counsel also pointed out that the court’s reinstruction was confusing and an incorrect statement of the law. These objections were “sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.” Castor v. State, 365 So.2d 701, 703 (Fla.1978). The trial court noted these objections and overruled them, and forty-five minutes after the trial court’s reinstruction was given, the jury returned with its verdict, finding that the appellant was guilty of second degree murder.

The appellant properly contends that the trial court erroneously instructed the jury that the elements which define the term “imminently dangerous and evincing a depraved mind regardless of human life” are disjunctive rather than conjunctive. The State mistakenly argues that this contention is invalid in light of State v. Bryan, 287 So.2d 73 (Fla.1973). The court in Bryan simply noted that a trial court may charge the jury by reading the second degree murder statute. Id. at 74, 76. While the court did state that “the average juror pretty well understands what a depraved mind is,” the court also observed the SJI’s elaboration on second degree murder “would have been appropriate and even wise to add to the [statutory] charge below.” Id. at 76 (footnote omitted). Also, it is clear that once the SJI is given, it must be given properly on a reinstruction. Such was not done here.

The trial court used the disjunctive “and/or” instead of the conjunctive “and.” The court compounded this error by essentially telling the jury that as for the last two elements listed in the SJI, “either one of those” would be sufficient to find the appellant guilty of second degree murder. These reinstructions were contrary to the court’s initial use of the SJI, which explicitly contains the word “and.” Moreover, the SJI’s use of the conjunctive “and” is legally correct. Section 782.04(2), Fla.Stat. (1979), provides that second degree murder is “[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual .. .. ” The SJI repeats this language, and then directs attention to the statutory phrase “any act imminently dangerous to another and evincing a depraved mind regardless of human life.... ” The SJI explicates this language as follows: “any act imminently dangerous to another” is defined in the SJI as element # 1 (an act which “a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another”); “any act ... evincing a depraved mind” is defined in the SJI as element # 2 (an act which “is done from ill will or hatred, spite or an evil intent”); and “any act ... regardless of human life” is defined in the SJI as element # 3 (an act which “is of such a nature that the act itself indicates an indifference to human life.”)

In this instance, reversal is necessary because the law regarding second degree murder was not correctly presented to the jury by the trial court’s reinstruction, and the defendant was clearly prejudiced by that erroneous reinstruction. These factors are emphasized by the recognition that “while supplemental instructions must be considered as a whole and must be viewed in the light of other instructions already given, they cannot reasonably be considered as other language in the basic charge, since the jury will rely more heavily on such instructions than on any single portion of the original charge.” Henry v. State, 359 So.2d 864, 868 n.3 (Fla.1978). See also Diecidue v. State, 131 So.2d 7, 11 (Fla.1961).

The appellant has raised numerous other points on appeal, but only two of those points merit discussion herein. At trial, the appellant testified in his own behalf, and on cross-examination, a prosecutor asked the following question: “Have you ever been convicted of a crime punishable by death or in excess of a year under the law in which you were convicted?” Defense counsel objected, stating that the question was improper; the trial court overruled the objection; and the appellant answered the question affirmatively.

It is obvious that the prosecutor was tracking the language of § 90.610(1), Fla. Stat. (1979), which provides that “[a] party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted .... ” (emphasis supplied). However, we express our concern regarding the prosecution’s actual use of the statutory language, as well as the manner in which that language was used. As for the latter concern, the statute refers to a conviction for a crime punishable by death or imprisonment in excess of one year. Thus, there are two separate elements referred to in the statute, and if the statute is to be used by the prosecution, each element should comprise the basis for one question. If the two statutory elements are asked as one question, an affirmative answer could easily create an inference in the minds of jurors that a defendant had been previously convicted of a capital crime when in fact, he may have been convicted of only a minor felony. This is particularly true if a defendant is being prosecuted for murder (as in this case). Thus, if a defendant answers affirmatively to the single question as to whether he has been convicted of a crime punishable by death or by imprisonment in excess of one year, the prosecution has invited, if not required, him to volunteer the nature of his crime if it was a minor felony. As pointed out in Goodman v. State, 336 So.2d 1264, 1266 (Fla. 4th DCA 1976), cert. den., 342 So.2d 1103 (Fla.1977), “[t]he defendant who admits a conviction is not to be prevented from voluntarily revealing the nature of the crime for which he was convicted, but the prosecution must not invite him to volunteer.” (emphasis supplied).

Even the bifurcated use of the statutory language still presents a problem. If the defendant answers affirmatively when asked if he has been convicted of a crime punishable by death, he has virtually been required to expose the exact nature of the crime because there are so few crimes punishable by death. For impeachment purposes, it is not necessary or proper that the jury have this detailed information.

Insofar as § 90.610(1), Fla.Stat., refers to a conviction for a crime punishable by death or imprisonment in excess of one year, we note that these two statutory elements simply comprise the standard definition of a felony. Given this fact, we think that it is preferable, for purposes of impeachment, to simply ask a defendant if he has been convicted of a felony. This single inquiry would encompass the statutory elements referred to above and it would eliminate any prejudice to the defendant resulting from other methods of inquiry.

The other point raised by the appellant concerns the impropriety of certain prosecutorial comments. For example, during closing argument to the jury, Sister Blackmon, an assistant state attorney, made the following statements:

Ladies and Gentlemen, that is why David Cronin is dead, because he didn’t shut up, because of the attitude of this man [i. e., the appellant.] This man has already been convicted of two crimes, already. He hasn’t lived, at least we know twice, he hasn’t lived by the rules of society and the law of this State.
[Defense counsel objects to this argument]
Ladies and Gentlemen, you well know he hadn’t conformed twice in the past and he wasn’t conforming that night. He wasn’t conforming like the law said he had to conform.
[Defense counsel objects to this argument]
He was not conforming. Ladies and Gentlemen, has our society gotten to the point where people are saying, “Okay, the man has a right to do anything he wants to do,” and as long as he can say, “Whoop, that intent is not in my mind;” that he can get away from it?
Has it gotten to the point where everybody who is convicted of a crime merely can do an act ... everybody, from all the circumstances ... puts a label on it, murder ... and he can say, “Oh, I didn’t have that mental intent.”

We take this opportunity to voice our disapproval of the assistant state attorney’s comments, which refer to the appellant’s previous convictions, not for the sake of attacking his credibility, see Wilkins v. State, 383 So.2d 742, 743 (Fla. 4th DCA 1980), but for the sake of indicating that he has a propensity to commit crime. This court, in Cochran v. State, 280 So.2d 42, 43 (Fla. 1st DCA 1973), observed that

[i]t is the duty of a prosecuting attorney in a trial to refrain from making improper remarks or committing acts which would or might tend to affect the fairness and impartiality to which the accused is entitled. [Her] duty is not to obtain convictions but to seek justice, and [s]he must exercise that responsibility with the circumspection and dignity the occasion calls for. Cases brought on behalf of the State of Florida should be conducted with a dignity worthy of the client.

These observations are especially appropriate in this case, which is reversed and remanded for a new trial.

BOOTH and SMITH, JJ., concur.

        See Manuel v. State, 344 So.2d 1317, 1319 (Fla. 2d DCA 1977), cert. dism., 355 So.2d 515 (Fla. 1978); Hines v. State, 227 So.2d 334, 335-36 (Fla. 1st DCA 1969).


source: Caselaw Access Project

author: ERVIN, Judge.

license: Public Domain

text:
    George D. OUTLAW and Kathleen R. Outlaw, et ux, Appellants, v. Lawrn F. McMICHAEL, Appellee.
    No. UU-481.
    District Court of Appeal of Florida, First District.
    May 5, 1981.
    Barne J. Morain, Pensacola, for appellants.

      Alan C. Sheppard of Emmanuel, Sheppard & Condon, Pensacola, for appellee.
   ERVIN, Judge.

The Outlaws appeal an order granting McMichael’s motion to dismiss their amended complaint with prejudice. Because the appealed order did not state any specific grounds for dismissal, the parties have argued all nine grounds raised in the appel-lee’s motion to dismiss as points on appeal. For the reasons stated infra, we reverse and remand with instructions.

The Outlaws’ complaint alleged that during negotiations leading to the purchase of certain rental property from the seller, McMichael, that the latter’s real estate agent made certain misrepresentations about the character of the property to be sold, and also alleged that McMichael breached the real estate contract, which was attached to the complaint, but which did not describe the property to be conveyed; instead a space for the property description was left unfilled by the parties. The first ground for dismissal asserted that the complaint failed to state that McMicha-el authorized or had reason to know of the alleged misrepresentations by a representative of his realtor. The amended complaint clearly alleged that a principal-agency relationship existed between McMichael and his realtor. In the normal real estate transaction, a real estate agent should have at least implied actual authority or apparent authority to make representations concerning the description and characteristics of the property to be sold. At the minimum, we cannot hold as a matter of law that a real estate agent does not have such authority. A principal is responsible for his agent’s unauthorized representations, if true representations as to the same matter were within his authority, and if the third party had no notice that the representations were unauthorized. Sun Oil Co. v. Behring Properties, Inc., 480 F.2d 310 (5th Cir. 1973).

It can be logically inferred from the allegations in the complaint that the Outlaws did not have notice that the representations made by the realtor were false until they took occupancy of the premises. Moreover, a principal can be held liable for the misrepresentations of his agent notwithstanding his lack of knowledge. See Wheeler v. Baars, 33 Fla. 396, 15 So. 584 (1894).

Points III and IV basically alleged that the complaint should have been dismissed because the warranties represented did not extend beyond the date of closing and that the Outlaws did not make a reasonable, timely inspection. Johnson v. Oliver, 249 So.2d 65 (Fla. 1st DCA 1971), is to the contrary, holding that the buyer of real estate was not estopped to claim relief for alleged defects stemming from misrepresentations by the seller, although the buyer and seller had earlier made a written agreement after closing that the seller would remedy certain other minor defects. Finally, the Johnson court held that the reasonableness of a purchaser’s inspection of the premises is a jury question. See also Besett v. Basnett, 389 So.2d 995, 998 (Fla.1980), in which the court reiterated the rule “that a recipient may rely on the truth of a representation, even though its falsity could have been ascertained had he made an investigation, unless he knows the representation to be false or its falsity is obvious to him.” As in Besett, it does not appear from the facts alleged in the complaint before us “that the [buyers] knew that the alleged misrepresentations were false.... ”

Point V raised the question whether the appellants’ complaint adequately alleged a material misrepresentation by the seller who purportedly had advised the Outlaws that the existing tenants on the purchased property were paying their utilities. The appellee’s defense was that since the appellants did not further allege the nature of the tenancies represented, the appellants had no assurance that the tenants would remain, enabling the appellants to require the tenants to pay utilities; therefore, the measure of damages was not ascertainable without pleading how long the landlord had assurance of having the tenants stay. This point also is not grounds for dismissal. The issue as to certainty of damages is an evi-dentiary matter. See Butler v. Mirabelli, 179 So.2d 868 (Fla.2d DCA 1965).

Points VI through IX basically involve the issue whether the alleged oral misrepresentations would have been inadmissible under the parol evidence rule because of the following language in the contract:

NO REPRESENTATIONS, guarantees, or warranties of any nature whatsoever which are not herein expressed and been made by any party hereto or their representatives.
******

THIS CONTRACT SUPERSEDES. AND REPLACES ALL OTHER. CONTRACTS.

The above quoted language has been generically referred to as an integration clause. The purpose of such clauses is to affirm the parties’ intent to have the parol evidence rule applied to their contracts. The modern trend, however, is for the courts to allow parol evidence, even in cases where a contract contains an integration clause, in order (1) to show that the parties did not intend for such language to be a complete statement of their transactions, see Luther Williams, Jr., Inc. v. Johnson, 229 A.2d 163 (D.C.App.1967), or (2) to explain an ambiguity in the contract. See Blaha v. Schwartz, 7 Ohio Op.3d 234 (Ohio Com.Pl. 1977). Here the omitted description of the property in the sales contract is the central factual concern in the appellants’ claim. Therefore, we hold that the parol evidence rule does not render appellants’ complaint defective because the sales contract’s incomplete provisions will apparently have to be clarified by parol evidence, a recognized exception to the parol evidence rule. See generally cases cited in 23 Fla.Jur.2d, Evidence, §§ 344, 345 (1980).

In summary, most of the appellee’s points raised in his motion for dismissal could be better characterized as affirmative defenses. Our holding does not preclude the ap-pellee from so re-raising these issues, some of which might become viable at a later stage in the proceedings.

Reversed and remanded for further proceedings consistent with this opinion.

SHAW and WENTWORTH, JJ., cbncur.


author: BASKIN, Judge.

text:
    BACHE, HALSEY, STUART, SHIELDS, INCORPORATED, a foreign corporation authorized to do business in Florida, Appellant, v. Victor MENDOZA, Appellee.
    No. 80-1933.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    Opinion on Rehearing July 1, 1981.
    See 400 So.2d 558.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Curtis Carlson, Miami, for appellant.
    Ginsberg & Goldman, North Miami Beach, and Albert Wilensky, Miami, and Daniel L. Ginsberg, North Miami Beach, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

An order granting a motion to vacate a default is not appealable. Yates v. Roller Skating Rinks, Inc., 379 So.2d 1333 (Fla. 5th DCA 1980); Praet v. Martinez, 367 So.2d 657 (Fla. 3d DCA 1979); Fla.R.App.P. 9.130(a); cf. Pedro Realty, Inc. v. Silva, 392 So.2d 1005 (Fla. 3d DCA 1981) (permitting appeal of denial of motion to vacate default). No order setting aside the Final Judgment was entered by the trial court.

Dismissed.


author: PER CURIAM. BOOTH, Judge,

text:
    Thomas Allen MARTIN and Joseph M. Doyle, Appellants, v. STATE of Florida, Appellee.
    No. PP-158.
    District Court of Appeal of Florida, First District.
    May 11, 1981.
    James M. Barton, II, of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, P. A., Pensacola, for appellant Thomas Martin.
    Thomas M. Ervin, Jr., of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant Joseph M. Doyle.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellants, Martin and Doyle, were convicted of indirect criminal contempt resulting from an interview with Carol Moore relative to her certification of an affidavit that Appellant Martin felt was a crucial piece of evidence in criminal charges pending against his wife.

The first trial of Mrs. Martin resulted in a mistrial when the jury was unable to reach a verdict. The State indicated its intent to retry the case and the Appellant, Thomas Allen Martin, consulted his wife’s attorney relative to the propriety of interviewing Mrs. Moore who was then living in Miami, Florida. After receiving legal advice Martin, an investigator with the Es-cambia County Sheriff’s Department, telephoned Appellant Doyle, a friend and fellow officer with the Tallahassee Police Department, advising him of the trip and of his intent to spend a night in Tallahassee. Doyle agreed to help with the driving to Miami and suggested that in order to save on gasoline they take his smaller car. They arrived in Miami late Saturday night on July 22,1978, and the next morning went to the home of Mrs. Moore.

Martin introduced himself as an investigator for the Escambia County Sheriff’s Department. In the course of the introduction he produced identification including his badge and informed Mrs. Moore that he was the husband of Sue Martin. He introduced his friend Joe Doyle as an investigator from Tallahassee and informed Mrs. Moore of the criminal action pending against his wife and of certain suspicions he had relative to the notarized statement. After producing a copy of the document he told her that everyone in Pensacola knew that the instrument was back-dated and that he was looking for a way to have the charges dropped against his wife. Mrs. Moore admitted that the affiant had not been sworn at the time he executed the document and Martin made several inquiries relative to the actual date of the signing; stating that if, in fact, an investigation by the State disclosed that his suspicions were correct, Mrs. Moore could be charged with a third-degree felony. In the course of conversation Mrs. Moore was told that if she would give a statement that the document had not been notarized correctly, Martin and his wife would give her a written statement saying that they would not attempt to press charges. When Mrs. Moore persisted in her assertion that the date appearing on the document was the true date of notarization, Appellant Doyle, who had remained silent throughout most of the conversation, told her that by not swearing the affiant, she was guilty of a third-degree felony and that there was a good chance that the State would file charges against her. In the course of Doyle’s conversation Mrs. Moore was asked if she would give a simple statement to the effect that the questioned document was not given under oath. Upon her refusal to give even such a limited statement, Doyle thanked her for her time, shook hands with Mr. Moore and both appellants left.

While there was pressure on Mrs. Moore to change her story in accordance with what Martin felt to be the true facts, the purpose of the visit was never concealed, and the interview was conducted in a low-key, professional manner. Mrs. Moore testified that Appellant Martin appeared flustered, disappointed and on the verge of losing his temper but he restrained himself and thereafter remained silent while Doyle continued with the conversation.

Martin, after returning from the trip to Miami, filed a complaint with the Office of the Governor seeking an investigation of the State Attorney’s Office. Mr. Moore, in the meantime, got in contact with Mr. Nelson, the affiant, and Mr. Harry L. Harper an Assistant State Attorney for Escambia County, encouraging them to do something about the interview with his wife. In May of 1979, approximately nine months after the July 23, 1978 interview, Mr. Harper filed an amended answer to discovery listing, for the first time, Carol Moore and Walter Moore as witnesses in the State’s case against Susan Martin. On June 15, 1979, a petition for order to show cause was filed against the appellants. The court denied a motion to dismiss and the appellants filed a motion to appoint an Acting State Attorney, alleging strong personal differences between Appellant Martin and State Attorney Curtis Golden, who, on the previous date, had filed a personal libel suit against Martin. The motion was denied as was a request for trial by jury. The latter denial was based upon the State’s assurance that in the event of a finding of guilty the State would request a penalty of less than six months and the court’s agreement that any punishment imposed would not exceed such threshold. Both appellants at trial admitted their contact with Mrs. Moore, but denied any attempt to coerce her into giving a false statement and any intent to obstruct justice. Appellants were found guilty of indirect criminal contempt and the court immediately proceeded to pronounce sentence over the defendants’ objections. The defendants’ request for an opportunity to present evidence of mitigating circumstances prior to sentencing was denied. The court, in denying said motion, advised defense counsel that if the defendants chose to subsequently present mitigating circumstances, a hearing would be set for that purpose and the court would then review its judgment. Appellant Doyle was sentenced to two months and Appellant Martin to three months, in the county jail. The clerk entered the adjudication of commitment, which contained no recital of facts constituting the contempt of which the appellants were adjudicated guilty. No written judgment of guilty was ever entered by the trial judge. Both appellants filed timely appeals and the matter is now properly before this court for consideration.

It is established law in Florida that great due process procedural safeguards should be accorded one accused of indirect criminal contempt. The procedure to be followed in such proceedings is set forth in Florida Rules of Criminal Procedure 3.840 which requires that at the conclusion of the hearing to determine the guilt or innocence of the defendant, the judge shall sign and enter of record a judgment of guilty or not guilty. There must be included in a judgment of guilt a recital of the facts constituting the contempt of which the defendant has been found and adjudicated guilty. Failure to comply with this rule is reversible error requiring remand to the lower court for entry of a proper judgment and sentence. Bryant v. State, 363 So.2d 1141 (Fla. 1st DCA 1978); McKnight v. State, 325 So.2d 79 (Fla. 4th DCA 1976); Davis v. State, 261 So.2d 188 (Fla. 1st DCA 1972), cert. denied, 265 So.2d 51 (Fla.1972). Such would normally be the disposition of this court. However, we find that aside from procedural defects, the judgment and sentences in this instance must be reversed on the merits for reasons hereinafter set forth.

Constructive contempt is an act done not in the presence of the court or of a judge acting judicially, but at a distance under circumstances that reasonably tend to degrade the court or the judge as a judicial officer, or to obstruct, interrupt, prevent, or embarrass the administration of justice by the court. The proceeding is maintained solely and simply to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court. Bryant v. State, supra; Ex parte Earman, 95 So. 755 (Fla.1923). Courts recognize that the power to punish for contempt is extraordinary and far-reaching and, unless used cautiously and prudently, can be subject to abuse. Ray v. State, 352 So.2d 110 (Fla. 1st DCA 1977); Krueger v. State, 351 So.2d 47 (Fla. 3rd DCA 1977); Olds v. State, 302 So.2d 787 (Fla. 4th DCA 1974). The power of the court to punish for contempt is allowed, not to satisfy an offended individual, but to vindicate the authority and dignity of the judicial office; and the penalty should have reference to the nature and enormity of the act complained of and to the wrong done to the court. Ex parte Earman, supra. Mrs. Moore was not a witness to any court action ,at the time she was contacted. She had not been called or listed as a witness in the first trial of Mrs. Martin and, in light of her limited role in the scenario, it was dubious whether she would be called as a witness for the State in any future trials. There was no outstanding court order prohibiting or restricting contact with her and it was only after Appellant Martin received assurance from his wife’s attorney that there was no impropriety in an interview that he contacted her. We conclude that under the circumstances the evidence is insufficient to sustain a finding that the appellants’ trip to Miami was “to pollute the free flow and divest the free flow of the channels of justice.” In criminal contempt proceedings the contemnor is presumed to be innocent until proved guilty beyond a reasonable doubt. Demetree v. State, 89 So.2d 498 (Fla.1956). Within the guidelines applicable to indirect criminal contempt proceedings we do not feel that the appellants’ guilt has been demonstrated to the exclusion of a reasonable doubt.

The order of contempt and the sentences imposed for said contempt are vacated.

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

BOOTH, J., dissenting with opinion.

BOOTH, Judge,

dissenting:

The facts, as outlined by the majority, support the trial court’s ruling of indirect contempt based on appellants’ unlawful attempts to persuade one Carol Moore to change her testimony. An important additional fact, not referred to in the majority opinion, is that Mrs. Moore was the notary on the affidavit which commenced the criminal prosecution for grand theft against appellant Martin’s wife. A motion to dismiss the charges against Martin’s wife, based on irregularities in the execution of the affidavit, had been filed and hearing set for the day following appellants’ interview with Mrs. Moore. Appellant Martin testified the evidence he sought to obtain from Mrs. Moore was “vital.” The record shows he used his friend Doyle and their official positions as law enforcement officers in an effort to make Mrs. Moore change her testimony.

At common law, and under the law of Florida, the court has inherent power to punish conduct which obstructs justice or interferes with the orderly processes of the court. The contempt power is not restricted to conduct which constitutes the felony offense of tampering with a witness, nor is it limited to punishment for intimidation of individuals who have been officially called or designated as “witnesses.” Were that the rule, the court would be powerless to punish the intimidation of potential witnesses. Fortunately, the power of the court is not so restricted.

The word “witness” derives from the Anglo-Saxon word “witan,” meaning “to know, to be wise,” and includes one by whom facts are sought to be proved, that is one who has knowledge of a fact or occurrence sufficient to testify in respect to it. It is the act of attempting to intimidate, persuade, or coerce a witness which is inimical to our judicial system and punishable by the court as indirect criminal contempt. For this purpose, it matters not that the individual sought to be intimidated is mistakenly believed to be a witness. Nor is it required that the testimony sought to be obtained was, or was believed by the con-temnor to be, true. It is not necessary that the witness be actually intimidated, so long as the acts or threats exercised against the witness were reasonably calculated to achieve that result. Thus, it is no defense that appellants were mistaken in believing that the evidence sought to be extracted from the witness was “vital” and/or true. Advice of counsel, “assisting in investigation,” and “good faith” are not defenses, State ex rel. Huie v. Lewis, 80 So.2d 685, 688 (Fla.1955), though they may be considered by the court in mitigation. Of course, it is no defense that appellants were unsuccessful in making Mrs. Moore change her testimony.

The Miami interview took place after the first trial of appellant’s wife, which resulted in a mistrial, and before the second trial, which resulted in Mrs. Martin’s conviction of grand theft. Martin, a criminal investigator for the Escambia County Sheriff’s Department, and Doyle, his friend and a Deputy Sheriff from Leon County, drove to Miami, arriving Sunday morning at the home of Mr. and Mrs. Moore. Martin displayed his badge and credentials at the door and introduced Doyle as an investigator. Both Mr. and Mrs. Moore testified that they believed appellants were there on official business. Mrs. Moore had been the personal secretary of one Gilbert Nelson and, as such, had notarized Nelson’s affidavit of complaint charging Mrs. Martin with larceny by embezzlement of more than $30,000, property of an apartment complex managed by Mrs. Martin, of which Nelson was the court-appointed receiver. At the time of the Miami interview, Mrs. Moore had not been subpoenaed as a witness, though she was later subpoenaed for the second trial.

The Honorable M. C. Blanchard, Circuit Judge, who presided over Mrs. Martin’s criminal trial, issued rule to show cause why appellants should not be held in contempt. Another Circuit Judge, the Honorable Woodrow Melvin, who had no involvement in the criminal trials of Mrs. Martin, heard the evidence and observed the manner and demeanor of the witnesses who testified before him. Under Florida Statutes, Section 38.22, “all questions of law and fact” are to be determined by the trial court, a determination not to be set aside on appeal where reasonably supported by the record. Ward v. State, 354 So.2d 438 (Fla. 3d DCA 1978). The testimony of Mrs. Moore, essentially uncontradicted, was, in pertinent part, as follows:

A ... [Martin] said the following day, which was a Monday, they were going to court and if he could have a statement from me saying that it [affidavit] had been post dated that the judge had already said that he would throw the whole thing out of court.
A I told him that it had been notarized on that date and that I couldn’t tell him anything else, and then he continued with, “Well, everyone in Pensacola knows that it was notarized on the wrong date.” ... And, again I told him that I had notarized it on the right date, and that that was all I could tell him. And then he continued again about — Mr. Doyle told me that it was a third degree felony to notarize something incorrectly.

Mrs. Moore testified that appellants “continuously” said they wanted “a statement from you that you did not notarize this correctly.” Her further testimony was:

A ... I said, ... “If I need to give any information I’d rather give it in a deposition or as a witness than sit down and write it now and give it to you,” mostly because I was so scared. I don’t think could have written anything.
A ... He [Martin] said, “I will give you a statement saying that neither my wife nor I will press charges against you, and I’ll have her notarize it and give you that.”
Q Was this before or after Mr. Doyle had told you that falsely notarizing a document was a third degree felony?
A I really don’t remember which came first.
A When they finally realized that I wasn’t going to give them anything, and Mr. Doyle proceeded to tell me, he said, “Well, let me prepare you for what will happen. When it goes to court you will probably be called as a witness and it will all be brought out then because we can take that document plus something else that you’ve notarized and send it to our crime lab and they can verify to the hour of the date as to when it was notarized.” And, he said, “So, I am preparing you to expect this — that you will be called.”
Q Were you upset ?
A Terribly so. I was shaking horribly.
Q How did you feel about their visit ?
A I felt threatened. I felt that they came there to scare me into doing something.
A I was very upset. I was shaking and nervous. I had let them into my home thinking that this was a legal matter — that they were there on official business. That was how the whole conversation started and was aimed at, and when they continuously asked me for something I knew I couldn’t give them truthfully ... (emphasis supplied)

Mr. Moore testified, in part, as follows:

A ... But he [Doyle] said that if she would make a statement saying that she had, in fact, not notarized it correctly, that he would in turn give her a statement saying that neither he or his wife Sue would ever attempt to press charges or bring any charges against her, and he even' pointed out that because his wife was a notary that he would have her notarize that statement.
Well, at this point my wife has become very upset, and I don’t think she could have written any kind of a statement at this time whether she wanted to or not. She was very shaken.
Q Did either defendant lead you to believe that it was an official visit?
A Yes.

The foregoing testimony supports the ruling of the trial court, who set out the basis for his findings in the record at the conclusion of the hearing. Appellants had already submitted the testimony of witnesses as to their respective good records as law enforcement officers; however, the court ruled, without objection by defense counsel, that further testimony in mitigation of sentences imposed would be heard and considered by the court if offered. The record reveals that appellants were accorded their rights in this regard and were fully advised of the basis of the trial court’s ruling.

The judgment below should not be reversed, and I, therefore, respectfully dissent.

      .Petition for Order to Show Cause, in part: [Appellants] did unlawfully attempt to persuade and induce the said Carol Moore, a subscribing witness as a Notary Public in said Case Number 77-1828-B, Circuit Court in and for Escambia County, Florida, to make an admission to them that the Affidavit of Complaint executed by Gilbert Nelson and filed with the State Attorney’s Office in Case Number 77-1828-B in the Circuit Court in and for Escambia County, Florida, was not signed by Gilbert Nelson on the date shown on said Affidavit of Complaint and that said Affidavit was post-dated (which admission would be contrary to her recollection of the facts relating to said criminal proceedings and concerning the date of the signing and execution of said Affidavit and which admission would have been false) with the intent and purpose by the said [appellants] ... of using said admission or statement to have the said criminal case pending against Susan H. Martin dismissed from Court, thereby effecting the final outcome of said case.

      . § 918.14, Fla.Stat.

      . Croft v. Culbreath, 150 Fla. 60, 6 So.2d 638 (1942); State ex rel. Huie v. Lewis, 80 So.2d 685 (Fla.1955); see Shaw v. Shaw, 164 Eng. Rep. 1097 (E & A 1861), held contempt of court for threatening to file charges against a person likely to be a witness.

      . Mellinkoff, Language of the Law, 47 (Little, Brown & Co. 1963); 97 C.J.S. Witness at 331.

      . In re Hand, 89 N.J.Eq. 469, 105 A. 594 (1918).

      . 17 C.J.S. Contempt § 31.

      . Cause can be remanded for entry of order under Rule 3.840, Fla.R.Crim.P. McKnight v. State, 325 So.2d 79 (Fla. 4th DCA 1976).


author: PER CURIAM.

text:
    Bobby H. WESTBERRY, Appellant, v. COPELAND SAUSAGE COMPANY, a subsidiary of Schweigert Meat Company, a subsidiary of Green Giant Company, and National Surety Corporation, Fireman’s Fund Insurance Company and Travelers Insurance Company, Appellees.
    No. SS-356.
    District Court of Appeal of Florida, First District.
    May 11, 1981.
    Stephen H. Kurvin, of Sale, Bryant, Thompson & Kurvin, Panama City, for appellant.
    C. Douglas Brown, of Isler, Brown, Smoak & Watson, Panama City, for appel-lees Green Giant Co. and Travelers Ins. Co.
    Jeffrey C. Bassett, of Barron, Redding, Boggs, Hughes & Fite, Panama City, for appellees Copeland Sausage and Nat. Sur. Corp.
   PER CURIAM.

Sua sponte, we hold that this court has no jurisdiction to review the order entered by the deputy commissioner on February 11, 1981.

This court’s prior opinion in this cause was filed on October 27, 1980 (389 So.2d 1214), reversing and remanding to the deputy commissioner for entry of an order containing specific findings on the issues of whether a compensable injury occurred, as well as findings and conclusions on the issue of whether the notice of injury was timely filed. Our opinion did not indicate that our remand was a relinquishment of jurisdiction, nor did this court reserve jurisdiction of the cause. Pursuant to the opinion and decision, this court’s mandate was issued on December 18, 1980, and this appeal file was closed. Subsequently, on February 11, 1981, the Deputy Commissioner entered his modified order finding no compensable accident, and finding that the employer was not promptly notified of the accident under the requirements of the worker’s compensation law. The claimant, seeking further review of this modified order, filed a “Memorandum” in this cause on March 9, 1981, requesting this court to reverse the Deputy Commissioner’s modified order, and to order the Deputy Commissioner to enter an award in favor of the claimant. There is no indication in the record of this cause that this “Memorandum” was filed with the Deputy Commissioner, nor did the claimant make any showing that this was done in his response to our order to show cause. Therefore, even if this court should treat such a memorandum as a notice of appeal (3 Fla.Jur.2d, Appellate Review, §§ 117-120), this court would still be without jurisdiction since no timely notice was filed with the deputy commissioner as required by Worker’s Compensation Rule of Procedure 16(a). See Malyn v. Atlantic Federal Savings & Loan Association, 384 So.2d 957 (Fla. 1st DCA 1980).

Because of the public policy favoring disposition of litigation on the merits, rather than upon technical matters of procedure, we have considered the circumstances under which an appellate court may recall its mandate. In Chapman v. St. Stephens Protestant Episcopal Church, 105 Fla. 683, 138 So. 630 (1932), the Supreme Court held that it has jurisdiction to modify or change its own judgment of reversal during the term at which the judgment was rendered, when it is made to appear to the court that it has committed an error which requires such change of its judgment in order to prevent a miscarriage of justice, even though a mandate has been issued and lodged in the circuit court. The court stated the rule that jurisdiction of an appellate court over its own judgments persists to the end of the term at which the judgment is rendered, and then absolutely terminates, in the absence of statute or rule having the effect of a statute in force to the contrary, and that the appellate court in a proper case may recall its mandate and reassume jurisdiction over its own judgments during the term at which they were entered. See Colonel v. Reed, 379 So.2d 1297 (Fla. 4th DCA 1980). In Barth v. City of Miami, 146 Fla. 542, 1 So.2d 574 (1941), the court recalled its mandate during the same term and reconsidered a case involving a negligence complaint which it had previously affirmed the dismissal of. The affirmance was based on law which was changed by the court in a subsequent decision, City of Tampa v. Easton, 145 Fla. 188, 198 So. 753 (1940), a case which extended and widened the domain of municipal liability. The court reconsidered the Barth case based on the law announced in City of Tampa v. Easton. A similar situation occurred in Jerry v. State, 174 So.2d 772 (Fla. 2nd DCA 1965). In that case also the court recalled its mandate in order to conform the ruling in Jerry to a recent decision of the court in Jones v. State, 174 So.2d 452 (Fla. 2nd DCA 1965). The court held that it retained the right to recall and vacate a mandate for good cause until the end of the term in which the mandate was issued.

The regular term of this court in which the decision of October 27, 1980 was filed ended on the Monday preceding the second Tuesday in January, 1981. Section 35.10, Florida Statutes (1979). Therefore, even if this court should be inclined to set aside its mandate to “prevent a miscarriage of justice,” which would be highly unlikely based upon our analysis and review on appeal of the deputy’s initial order, we would be prevented from doing so under the dictates of the decisions above reviewed.

Accordingly, the pending application for review in this cause is dismissed and further appellate review is terminated.

ERVIN, SMITH and SHIVERS, JJ., concur.


text:
    Katherine L. QUEST and Sea-Sky Travel Agency, Inc., Appellants, v. BARNETT BANK OF PENSACOLA, Appellee.
    No. SS-487.
    District Court of Appeal of Florida, First District.
    May 11, 1981.

      Charles L. Cetti of Cetti & McGraw, Pensacola, for appellants.
    John F. Windham of Beggs & Lane, Pensacola, for appellee.
   ERVIN, Judge.

Quest and Sea-Sky Travel Agency, Inc., appeal an order granting a directed verdict at the close of their case-in-chief in an action which had sought damages against the bank based upon alternative theories of trespass, conversion, negligence, and a count filed pursuant to Section 679.507, Florida Statutes (1975), authorizing a statutory right of action against a secured party who does not proceed against a debtor ih accordance with the procedure required by Part V of Chapter 679. Appellants contend that the court erred in directing a verdict because (1) the bank had no authority to declare appellants in default of their obligations and to accelerate two promissory notes, one a demand and the other an installment note, and (2) the bank’s self-help measures constituted a breach of the peace and were therefore unlawful. We affirm the trial court’s finding on the first point, but reverse as to the second point and remand for further proceedings consistent with this opinion.

As to the bank’s right to accelerate, it is obvious that the bank could require immediate payment of the demand note, since by its terms it could be called at any time with or without reason. See comment to U.C.C. § 1-208. The only substantial issue before us is whether the bank had the right to accelerate the installment note, which contained the standard provision that the note could be accelerated “if the bank at any time feels insecure for any reason.” Section 671.208, Florida Statutes (1975), explains that the word “insecure” means that the creditor “shall have power to [accelerate] only if he in good faith believes that the prospect of payment or performance is impaired.” The burden of establishing the creditor’s lack of good faith is placed by the statute upon the debtor.

We conclude from the evidence that Mrs. Quest did not meet her burden since she did not present evidence from which a jury could infer that the bank did not act in good faith in accelerating the two notes. In January, 1977, at the time the decision was made to accelerate payment of the remaining balance on the two notes of $41,-600, the bank was confronted with the following circumstances: A draft in the amount of $10,000 had been accepted for payment, thereby creating a $6,500 overdraft; an additional draft for $6,000 had just been presented, although not accepted, and the bank had been informed that yet another draft in the amount of $14,000 would soon be presented.

The facts in the present case closely parallel those in Farmers Co-Op El., Inc., Duncombe v. State Bank, 236 N.W.2d 674 (Iowa 1975), in which a grain elevator brought an action against a bank for the latter’s wrongful dishonor of checks and tortious interference with its prospective business advantage. Following the jury’s verdict in favor of the elevator, the trial court entered judgment for the bank, notwithstanding the verdict, and the elevator appealed. After reviewing evidence showing that the elevator owed the bank $272,000 on six notes, and that it needed $50,000 within the next two weeks, and showing also that the bank was aware that the elevator had sustained a loss of $22,000 in the fiscal year just completed, the Iowa Supreme Court held that the bank’s concern about the security of its loan was in good faith and that its acceleration of the notes was not, under the circumstances, improper. In construing U.C.C. § 1-208, the court stated that the burden imposed upon the debtor was “to introduce substantial evidence of lack of good faith; a mere scintilla would not suffice.” 236 N.W.2d at 677. It rejected the debtor’s argument that the good faith requirement of the statute requires not only honesty in fact, but also a reasonable belief by the creditor that the debtor’s prospects of payment would be impaired, observing that “decisions construing [the statute] overwhelmingly agree that the test of good faith under that section is a wholly subjective one of honesty.” Id. at 678.

We adopt the reasoning of the Iowa Supreme Court, and conclude that the debtor here has not presented substantial proof that the bank’s concern about the security of its notes, whether or not reasonable, was not genuine, or that the bank had an ulteri- or motive. There was consequently no fact issue to be determined by a jury that the bank accelerated without good faith.

Mrs. Quest also argues that the bank was not legally authorized to declare the notes in default because she had relied upon a course of past dealings and prior agreements'which had existed between the parties permitting the account to be overdrawn until the indebtedness was extinguished by the collection of receivables. She cites Ford Motor Credit Company v. Waters, 273 So.2d 96 (Fla.3d DCA 1973), as authority for her position, which held that because the buyer’s pattern of payments was irregular and deviated substantially from the terms of the contract, the seller could not retake the goods without notice and without demand for the outstanding balance. The facts in the instant case are, however, clearly distinguishable from those in Waters. Although the evidence here reveals that there had existed a similar pattern of conduct, it also reveals that in October of 1976, following the acceptance of. an overdraft, a loan agreement was executed by the parties providing that the travel agency would maintain net working capital, meaning the excess of current assets over current liabilities, in an amount no less than $10,000. Under the circumstances, Mrs. Quest cannot be said to have reasonably relied on the bank’s prior practices, and must be considered to have been placed on notice by the terms of the loan agreement of the bank’s change in policy.

The second issue, concerning whether the bank’s self-help measures were lawful, is a far more difficult one to determine. On January 27,1977, the bank seized possession of appellants’ assets without judicial process. On that date, a bank agent phoned Mrs. Quest, who was at home ill, and requested her to come immediately to her place of business, because he intended to close it down. Mrs. Quest informed the agent that she could solve the cash flow problem in 48 hours, but he declined any further extensions. During a later telephone conversation, she advised the agent that there were very important papers in her office and that she needed more time to place her business affairs in order. He responded that she could come to the office and that the bank would not do anything until then. When she arrived at the scene, the bank’s agents had already taken action; many of the business’s contents had been removed, and the records were scattered on the floor. An employee of Sea-Sky testified that when one of the agents first arrived at the premises, she told him that she was not authorized to take any action, and that he would have to talk first with Mrs. Quest. The bank's agent testified as an adverse witness, and did not refute the essence of Mrs. Quest’s or the employee’s testimony.

The bank defends its self-help remedy by asserting that its actions were sane-tioned by its security agreement giving it “immediately and without demand any and all rights and remedies granted to a secured party upon default under the Uniform Commercial Code.” More specifically, the bank contends that its actions were authorized by Section 679.503, permitting a secured creditor to take possession of collateral “if this can be done without breach of the peace.... ”

This statute has been construed as providing a creditor a very limited right of possession. A two-pronged test has been established to determine whether a “ ‘breach of the peace has occurred’ ” within the meaning of the statute: “ ‘(1) whether there was entry by the creditor upon the debtor’s premises, and (2) whether the debt- or or one acting in his behalf consented to the entry and repossession.’ ” Marine Midland Bank-Central v. Cote, 351 So.2d 750, 752 (Fla.1st DCA 1977) (quoting from White and Summers, Uniform Commercial Code, 966 (1962)). There is no dispute in the record that there was entry by the bank upon Mrs. Quest’s business premises.

The second part of the test requires more analysis. White and Summers, in their Handbook of the Law Under the Uniform Commercial Code (West 1972), at pages 966 — 969, discuss considerations which courts have grappled with in determining whether a debtor may be said to have lawfully consented to the entry:

In general, the creditor may not enter the debtor’s home or garage without permission, but he can probably take a car from the debtor’s driveway without incurring liability. The debtor’s consent, freely given, legitimates any entry; conversely, the debtor’s physical objection bars repossession even from a public street. This crude two-factor formula of creditor entry and debtor response, must, of course, be refined by at least a consideration of the third party response, the type of premises entered, and possible creditor deceit in procuring consent.
Perhaps the most articulate and forceful statement of the general rule that entry into the debtor’s residence in his absence is a breach of the peace is found in Girard v. Anderson, 219 Iowa 142, 257 N.W. 400 (1934). There the creditor repossessed a piano from the debtor’s home in the latter’s absence. The debtor maintained that the house had been locked; the creditor testified that his agents entered through an unlocked door. Despite the presence of a clause in the sales contract purporting to authorize forcible entries, the court found that the entry, even according to the creditor’s testimony, was a breach of the peace.
* * * * * #
Thus, the great majority of courts find unauthorized entries into the debtor’s residence to be breaches of the peace, and many find entry into his place of business or garage to be such a breach. As one moves away from the residential threshold to the yard, the driveway, and finally the public street, however, the debtor’s argument becomes progressively more tenuous.... (e.s.) (footnotes omitted) (quoted with approval in Northside Motors of Florida, Inc. v. Brinkley, 282 So.2d 617 (Fla.1973) at 624).

A thorough analysis of the question whether consent was given the creditor to enter the debtor’s premises requires consideration of the following factors. First, a debtor’s consent to a creditor to enter into an enclosed area, even if expressed, must be freely and voluntarily given. Cf. Marine Midland Bank-Central, supra; Northside Motors, supra. There are ample facts in the record from which the jury could have inferred that Mrs. Quest’s consent was not voluntarily given. Although it is true that Mrs. Quest never ejected the bank’s agents from the premises, she did request that they delay their action. Compare Benschoter v. First National Bank, 218 Kan. 144, 542 P.2d 1042 (1975), in which it was held that a son’s request for the creditor to wait until the father returned was a sufficient protest to invalidate the creditor’s self-help action. It could also be inferred from the record that resistance to the bank’s actions would have been fruitless, since at the time Mrs. Quest first arrived at the business after being notified by the bank’s agent, the process of closing the business down had already begun.

Second, permission to come upon one’s premises may be implied from custom, usage, or conduct; but such implied consent is limited to those acts that are within a fair and reasonable interpretation of the terms of the grant. Sacco v. Eagle Finance Corp. of North Miami Beach, 234 So.2d 406 (Fla.3d DCA 1970); Boston Manufacturer’s Mutual Insurance Co. v. Fornalski, 234 So.2d 386 (Fla.4th DCA 1970). Cf. Florida Publishing Co. v. Fletcher, 340 So.2d 914 (Fla.1976). In Sacco, it was held that a directed verdict against the plaintiff on a count of trespass was improperly granted in that the jury should have been allowed to resolve the question as to whether the facts adduced at trial showed that the boundaries of consent were overreached by purported unreasonable conduct of the creditor’s agent.

In the instant case, it is arguable whether the facts reveal that implied consent was given the bank, either by appellants’ custom or conduct, to enter and repossess. Yet, even if that issue were conclusively established against appellants by the facts, it would be a jury question whether the bank overreached the consent given. There was evidence that Mrs. Quest’s acquiescence was obtained by promises from the bank’s agents which were not kept. She was told over the phone by the bank’s agent to come down to the business premises because it was his intention to close the business. Yet, this action had already been taken before she arrived. The evidence is even stronger that the bank’s agent also violated his promise to Mrs. Quest that the bank would give her until the following morning to put her business papers in order.

A creditor has been held liable for trespass when the self-help remedy has been accomplished through the use of fraud and deceit. See, e. g., Barham v. Standridge, 201 Ark. 1143, 148 S.W.2d 648 (1941) (creditor secured possession by promising to repair the car); Rhodes-Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247 (1935) (creditor posed as policeman); Stone Mach. Co. v. Kessler, 1 Wash.App. 750, 463 P.2d 651 (1970) (creditor repossessed tractor with unauthorized aid of a uniformed sheriff’s deputy); Skeels v. Universal C.I.T. Credit Corp., 335 F.2d 846 (3d Cir. 1964) (creditor entrapped debtor by assuring him that future credit would be extended). The evidence in this case is such that a jury could infer that the bank willfully misinformed its debtor as to the time its self-help remedy would be exercised.

Moreover, even if the bank’s entry of the premises could be said to have been accomplished without a breach of the peace, there is evidence in the record that the manner in which it carried out its self-help remedy was improper. A breach of peace can occur if the secured party damages property of the debtor while affecting repossession. See, Whisenhunt v. Allen Parker Co., 119 Ga.App. 813, 168 S.E.2d 827 (1969). Also, a creditor is liable for any negligence resulting in damage to the debt- or’s collateral. Southern Industrial Savings Bank v. Greene, 224 So.2d 416 (Fla.3d DCA 1969). Section 679.504 recognizes this standard by providing that the method of disposal of assets pursuant to the self-help remedy shall be carried out in a “commercially reasonable” manner. One of the general provisions of the Uniform Commercial Code is that “[ejvery contract within this act imposes an obligation of good faith in its performance or enforcement.” See Section 671.203. Additionally, Section 671.103 provides that principles of equity shall supplement the code. “These provisions superimpose a general requirement of fundamental integrity in commercial transactions regulated by the code.” Skeels v. Universal C.I.T. Credit Corp., supra at page 851.

We conclude that as to the second point raised, the facts taken as a whole establish a prima facie case for a jury’s consideration.

Reversed and remanded for further proceedings consistent with this opinion.

SMITH and SHIVERS, JJ., concur.

      . These notes were originally taken out of February, 1976, in the total amount of $44,000, for the purpose of alleviating a cash flow problem which had plagued the agency for nearly two years. Under the unique circumstances peculiar to travel agencies, the agency is required to pay the Air Traffic Conference (ATC) the cost of airline tickets purchased by its customers within 10 days following a given time period. There is ordinarily a delay of 14 — 45 days before the agency receives reimbursement from its customers for these costs. Hence the necessity in the instant case for the two loans, which were secured by accounts receivable and by furniture and fixtures for a total value of $43,-990.


text:
    Mary KILDAY, Appellant, v. MEDICAL STAFFING SERVICES and Aetna Insurance Company, Appellees.
    No. WW-30.
    District Court of Appeal of Florida, First District.
    May 12, 1981.
    Stuart F. Suskin of Abrams & Suskin, North Miami Beach, for appellant.
    C. Randal Morcroft, Fort Lauderdale, for appellees.
   PER CURIAM.

This is a timely appeal from an order of a deputy commissioner finding appellant’s neck injury was not a result of her industrial accident. Appellant argues that the logical cause doctrine and the presumption of Florida Statutes § 440.26 require a finding of a causal connection between the industrial accident and appellant’s neck injury. Appellant argues it was error for the deputy commissioner to hold otherwise.

Appellant, a certified licensed practical nurse, felt a sudden popping sensation in her right knee as she got up from her desk at work to check on a patient. Appellant reported the incident to the night supervisor, complaining that pain from the knee radiated up her right side. At the end of her work shift, appellant went to the emergency room of the hospital for treatment. Dr. Teperson placed her leg in a cast and instructed her to rest at home. At this first examination, appellant made no mention of the pain in her neck. After a couple of days at home, appellant developed neck pain which grew progressively worse until appellant was hospitalized and underwent cervical disc surgery.

In the compensation order, the deputy commissioner states that he arrived at his conclusion that the neck injury was not causally related to the industrial accident by considering the testimony of Dr. Teper-son and the discrepancy which he found in appellant’s testimony. The deputy noted that at appellant’s deposition, taken on September 12, 1979, appellant described the pain as being limited to her leg and foot with some radiation as high as her side. At the hearing, appellant testified that her neck pain began a couple of days after the accident. The deputy apparently considered this a significant discrepancy in appellant’s testimony as to the initial onset of cervical pain.

Our review of the record on appeal shows that the deputy commissioner has made a mistake in fact regarding the existence of a discrepancy in appellant’s testimony as to the onset of cervical pain. At the deposition of September 12, 1979, appellant testified on cross-examination, that her neck pain began a couple of days after the accident. This testimony is consistent with the testimony given by appellant at the hearing. Since the deputy commissioner based his order, at least in part, on what he believed to be a discrepancy in appellant’s testimony, and since it appears from the record on appeal that the discrepancy does not in fact exist, we remand this case to the deputy commissioner for reconsideration of the issue.

REVERSED and REMANDED.

LARRY G. SMITH, Jr., J., LILES, WOODIE A., Associate Judge (Ret.), and PEARSON, TILLMAN A., Associate Judge (Ret.), concur.


text:
    FLORIDA DIVISION OF CORRECTIONS; Division of Risk Management, Appellants, v. John P. MORGAN, Appellee.
    No. XX-248.
    District Court of Appeal of Florida, First District.
    May 12, 1981.
    Bernard J. Zimmerman and Robert C. Barrett of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish, P. A., and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, co-counsel, for appellee.
   PER CURIAM.

This court previously ruled that there was no competent substantial evidence to support a finding of permanent total disability based on loss of wage earning capacity because we found that the claimant’s work search was inadequate. We remanded the case for proceedings consistent with that finding. On remand, the deputy commissioner restated his initial findings, excused the claimant from any further work search, and again found permanent total disability due to loss of wage earning capacity; we must reverse again.

We held in Brevard Board of County Commissioners v. Caldwell, 379 So.2d 1031 (Fla. 1st DCA 1980), and City of Hollywood v. Castora, 380 So.2d 1148 (Fla. 1st DCA 1980), that a finding of inadequacy of a job search is res judicata, so recovery should be limited to the anatomical rating. Here, the carrier was voluntarily paying permanent partial disability at 50%, the highest physical disability rating assigned to the claimant by a physician. No higher rate of permanent anatomical disability has been demonstrated. The order is reversed and the case is remanded for the entry of an order denying permanent disability compensation in excess of the 50% permanent disability previously accepted by the carrier. The award of attorney’s fee is also reversed in light of the reversal of benefits obtained through the efforts of counsel.

Remanded for proceedings consistent with this opinion.

MILLS, C. J., SHAW, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


text:
    K-MART CORPORATION, Appellant, v. Joanne BONFIGLIO, Appellee.
    No. XX-275.
    District Court of Appeal of Florida, First District.
    May 12, 1981.
    John F. McMath, Miami, for appellant.
    Eugene N. Betts, P. A., Fort Lauderdale, for appellee.
   PER CURIAM.

The claimant injured her knee in 1976 while working for K-Mart Corporation. She filed a claim for compensation and on January 3, 1978, was awarded 5% permanent partial disability which the carrier timely accepted and paid. Subsequently, the claimant had a series of medical and psychological problems which she attributed to the K-Mart accident. In October, 1978, she filed a new claim for compensation seeking additional temporary or permanent benefits, medical treatment, and attorney’s fees.

The deputy commissioner questioned the procedure of filing a new claim in lieu of a petition for modification since the order of January 3, 1978, was final, but he allowed the hearing to continue after the following colloquy:

(By the Deputy Commissioner):

It appears there was no appeal filed on the order, so the order is a final order. You are requesting medical treatment and reinstatement of temporary total disability benefits.
MR. PASCO: That is correct.
D/C: Are you basing this on a change of condition or mistake of fact?
The only way you can proceed is on a petition for modification.
The order is final.
MR. PASCO: We are at a point where the Claimant has requested medical authorization subsequent to the order and it has been denied. The motion here is merely for authorization of Dr. Crane to continue treating the claimant and for temporary total disability as a result of the disability that Dr. Crane testified to in the deposition.
D/C: I am telling you, however, that the order is final. It was not appealed. The only way you can proceed is on a petition for modification of the order.
MR. PASCO: Is the Claimant entitled to medical attention subsequent to the final order?
D/C: There is nothing in here about continuing the treatment. There is nothing in the order. She is entitled to request medical attention anytime within a period of two years from the date of the last authorized treatment.
MR. PASCO: Which she has done and it has been denied. That is what we are here for.

The request for additional medical treatment was properly considered pursuant to the announced purpose of the hearing. Bryant v. Elberta Crate & Box Company, 156 So.2d 844 (Fla.1963). The deputy went further, however, and reserved jurisdiction to award temporary total disability. It is this portion of the order that we find to be in error as exceeding the announced scope of the hearing. In Acousti Engineering Co. v. Shivers, 391 So.2d 792 (Fla. 1st DCA 1980), we held that it is possible for a carrier to waive the filing of a petition for modification. This case differs from Shivers in that the carrier in the instant case was led by the deputy to believe that the hearing and any order resulting therefrom would be limited to the claimant’s entitlement to additional medical attention. It is clear, therefore, that the carrier did not intentionally waive the filing of a petition for modification as a prerequisite to the award of additional temporary total disability. The deputy’s reservation of jurisdiction to award temporary total disability benefits, therefore, lacks the prerequisite petition for modification and exceeds the announced scope of the héaring. Paragraph 5 of the decretal portion of the order is accordingly stricken. The order is otherwise affirmed as being supported by competent substantial evidence.

MILLS, C. J., SHAW, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


text:
    Steven Lee SCHLANGER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1358.
    District Court of Appeal of Florida Third District.
    May 12, 1981.

      John M. MacDaniel and Jack T. Frost, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.

       Judge Daniel Pearson participated in the decision in this case but did not hear oral argument.

   PER CURIAM.

We affirm the trial court’s denial of defendant’s motion to suppress tangible physical evidence because the defendant did not meet his required initial burden, Black v. State, 383 So.2d 295 (Fla.1st DCA 1980); State v. Hinton, 305 So.2d 804 (Fla.4th DCA 1975), to demonstrate: (a) that he had either been “seized” or “stopped”; or (b) that by objective standards, the police interdicted his freedom of movement or passage. Consequently, the trial court was entitled to find that the police contact with the defendant constituted a cooperative encounter. Login v. State, 394 So.2d 183 (Fla.3d DCA 1981). Because there was no taint from an unconstitutional stop or seizure, the state was only required to show, by the preponderance of evidence, United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), that the warrantless search of the defendant’s luggage, procured through his consent, was valid. The ruling of a trial court on a motion to suppress arrives in this court clothed with the presumption of correctness and we will interpret the evidence and reasonable inferences and deductions to be derived therefrom in a manner most favorable to sustain the trial court’s ruling. McNamara v. State, 357 So.2d 410, 412 (Fla.1978).

Affirmed.


text:
    R. A. PILOTO, INC., a Florida Corporation d/b/a Corre Cleaners & Laundry, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 80-911.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.

      Martin Lemlich, Miami, for appellant.
    Jeanne Heyward and Richard M. Welsh, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

This is an appeal from a final judgment for the appellee, Allstate Insurance Company, entered by the trial court pursuant to a non-jury trial whereby the appellant, R. A. Piloto, Inc., sought to recover under a business package policy of insurance issued by the appellee.

On January 31,1976, the appellee issued a business package policy of insurance to the appellant covering, among other things, fire insurance. Monthly payments were to be made for a period of ten months to pay the premium for the twelve months’ insurance. The appellant had a history of being delinquent in its payments and the policy was cancelled effective April 21,1976 because of an unpaid premium. A short payment had been made prior to the cancellation and, while the short payment was credited to the appellant’s account, the insurance was not reinstated. The appellant was advised the policy would be reinstated only upon payment of the balance of the premium due. When full payment was received, the policy was reinstated. The appellant again became delinquent on the May and June payments. As a result, the appellee mailed a cancellation notice to the appellee on June 16, notifying it the policy would be can-celled July 19, 1976 for non-payment of premium and a final audit of the workmen’s compensation coverage was ordered. On July 21, two days after the policy was can-celled, the appellant sent another short payment of premium to the appellee. The receipt given by the appellee for this payment provided that the remittance, in whole or in part, shall not operate to reinstate the policy. On July 29, the appellant’s business burned down. The appellee refused to reinstate the appellant’s policy and denied coverage for the loss. As a result, the instant suit was brought, seeking damages under the policy. The coverage question was tried separately and determined adversely to the appellant, resulting in this appeal.

On appeal, the appellant contends the trial court erred in: (1) Permitting a Xerox copy of an affidavit of a deceased mail clerk into evidence, when the contents thereof had not been properly verified and the copy is certainly not the best evidence. (2) Holding the policy was properly cancelled, when the appellee is estopped from alleging cancellation by its acceptance of a partial premium payment subsequent to cancellation but prior to loss.

It would appear that both points raised by the appellant are without merit. The evidence clearly shows there was an effective cancellation of the policy, which was not reinstated by partial payment of premium after cancellation, and that the affidavit to support proof of mailing the notice of cancellation was properly authenticated so as to permit it to be introduced into evidence in the exercise of the trial ■ court’s discretion. Therefore, the order appealed is affirmed on the authority of Aetna Casualty and Surety Company v. Simpson, 128 So.2d 420 (Fla. 1st DCA 1961); Allstate Insurance Company v. Dougherty, 197 So.2d 563 (Fla. 3d DCA 1967); Burgos v. Independent Fire Insurance Company, 371 So.2d 539 (Fla. 3d DCA 1979); Pennsylvania National Mutual Casualty Insurance Company v. Burns, 375 So.2d 302 (Fla. 2d DCA 1979).

Affirmed.


text:
    Marleen GAYLE, Appellant, v. METROPOLITAN DADE COUNTY, a Political Subdivision of the State of Florida, and its subsidiary, Metropolitan Transit Authority, Appellee.
    No. 80-938.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.
    Greene & Cooper and Joan M. Bolotin, Keyfetz & Poses, Miami, for appellant.
    Robert A. Ginsburg, County Atty. and Craig H. Coller and Jack M. Sobel, Asst. County Attys., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

We reverse a summary final judgment which was prematurely entered against the passenger and in favor of the common carrier: (1) because there remains a question of fact as to whether the bus driver had superior vantage to observe a substance in the boarding stairwell where the passenger slipped; and (2) where there were inferences that the substance had been in the stairwell for a sufficient length of time to have been observed and removed. Packer v. Winston Towers One Hundred Association, Inc., 377 So.2d 46 (Fla.3d DCA 1979); Dade County v. Ware, 295 So.2d 360 (Fla.3d DCA 1974); Marlowe v. Food Fair Stores of Florida, Inc., 284 So.2d 490 (Fla.3d DCA 1973), cert. denied, 291 So.2d 205 (Fla.1974).

The summary final judgment is reversed and remanded for further proceedings.


text:
    Burton A. GREENBERG, Appellant, v. Patricia GREENBERG, Appellee.
    No. 80-1193.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.
    Joseph A. Solía, Hialeah, Louis Vernell, Miami Beach, for appellant.
    Talianoff & Rubin and George Talianoff, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The record is devoid of any proof of a financial inability of the wife to pay her own attorney’s fees. Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977). See also Cummings v. Cummings, 330 So.2d 134 (Fla.1976); Deatherage v. Deatherage (Fla. 5th DCA) (opinion filed February 25, 1981); Hill v. Hill, 376 So.2d 472 (Fla. 4th DCA 1979); Robinson v. Robinson, 366 So. 2d 1210 (Fla. 1st DCA 1979); Ritter v. Ritter, 362 So.2d 384 (Fla. 3d DCA 1978); Butts v. Butts, 362 So.2d 349 (Fla. 1st DCA 1978); Watterson v. Watterson, 353 So.2d 1185 (Fla. 1st DCA 1977).

Appellee’s argument is totally without merit. Because no formal order had been entered regarding attorney’s fees, the matter was not previously argued before, nor decided upon by this court. The law of the case applies where the same factual and legal issue is presented to the court a second time. See Greene v. Massey, 384 So.2d 24 (Fla.1980); Braverman v. State, 393 So.2d 1165 (Fla. 3d DCA 1981) (Schwartz, J., specially concurring).

The order awarding fees is reversed and the cause remanded for an evidentiary hearing to determine whether an award of attorney’s fees to the wife is appropriate considering the relative financial abilities of the parties; if an award is determined appropriate, the court is to also determine a reasonable fee based on the proof.

Reversed and Remanded.

      . Point VI of appellee’s brief in the previous appeal states, “THE JUDGMENT APPEALED FROM DOES NOT BRING UP FOR REVIEW ANY AWARD OF COUNSEL FEES SINCE NO ORDER HAS BEEN ENTERED IN THE COURT BELOW FIXING COUNSEL FEES.”


text:
    The STATE of Florida, Appellant, v. Philip Ugo PEZZELLA, Appellee.
    No. 80-1514.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.
    Janet Reno, State Atty. and Milton Robbins, Asst. State Atty., for appellant.
    Harvey Robbins and James P.. Ryan, North Miami, for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

We reverse the trial court’s suppression of “Evidence Obtained Through Unreasonable Search and Seizure”. Neither the motion nor the order specified the evidence to be suppressed. Fla.R.Crim.P. 3.190(h)(2).

The trial court’s refusal to permit the state to proffer evidence defeats our evaluation of the arguments on appeal concerning the necessity for consent to a warrant-less interception of a telephone call to defendant’s home upon which defendant contends probable cause for his arrest was based and concerning the unavailability of a witness who invoked the Fifth Amendment. A trial court should not refuse to allow a proffer of testimony. Piccirrillo v. State, 329 So.2d 46 (Fla. 1st DCA 1976).

Upon remand questions relating to defendant’s standing to seek suppression of evidence under decisions released subsequent to the trial court’s ruling should be addressed. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Norman v. State, 388 So.2d 613 (Fla. 3d DCA 1980).

Reversed and remanded.


author: SCHWARTZ, Judge.

text:
    NORTH MIAMI GENERAL HOSPITAL, a Florida Corporation, Petitioner, v. ROYAL PALM BEACH COLONY, INC., a Florida Corporation, Mona Lewis, and Phylis McLaughlin, a/k/a Phylis McLaughlin Ratsky, Respondents.
    Case No. 81-456.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.

      Lawrence & Daniels and Adam Lawrence, Miami, for petitioner.
    Nathan & Williams and Martin L. Nathan, Miami, for respondents.
    Before SCHWARTZ and FERGUSON, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

North Miami General Hospital seeks certiorari review of an order which required it to answer an interrogatory concerning the contents of its admission records of patients not involved in the pending action. We conclude that the burdensomeness and possible breach of confidentiality involved in answering the interrogatory far outweigh the ephemeral advantage the respondent may achieve if a response is required. Accordingly, we quash the order under review.

The hospital is the plaintiff below in an action which claims fraud against the respondent, Royal Palm Beach Colony, Inc. North Miami General contends that in September, 1978, it admitted and treated Phylis McLaughlin, formerly Ratsky, because of a deliberately false statement made by a representative of Royal Palm to a hospital employee, Ms. Fairbanks, that McLaughlin was covered by a Royal Palm group policy which insured her ex-husband. In its defense, Royal Palm claimed, in part, that the hospital should not have relied on this statement because it knew or should have known that an ex-spouse of an employee is not covered under such a policy. Presumably on the theory that, if the situation had not occurred before, the hospital should have been alerted to the lack of credibility in the representation, Royal Palm deposed several hospital employees concerning the extent of their knowledge of such coverage having been provided. Fairbanks, to whom the false statement was supposedly made, said she didn’t remember any such previous instance. Another employee, Linda Combs, however, said that it was “very common” that a divorced woman was covered by her former husband’s group policy. The defendant thereupon propounded the following interrogatory:

5. During the deposition of Linda Combs, Ms. Combs testified that on ‘many’ occasions prior to September of 1978 she confirmed with insurance companies providing group health insurance the fact that an ex-wife was covered by the wife’s ex-husband’s group policy: in reference to that testimony, state the name of each and every insurance company within a one year period prior to September 8, 1978, who advised or confirmed for Ms. Combs the fact that there was such coverage for ex-wives of employees who were covered by group health policies and for each such company state the name of the patient for or about whom confirmation of coverage was being sought.

The hospital objected to this interrogatory on the grounds of oppressiveness and irrelevance. The trial court overruled the objections and ordered an answer. The hospital then filed the present petition for certiorari in this court. The petition is granted.

As we have indicated, “[mjany, probably most, discovery questions may be decided by a proper balancing of the competing interests to be served by granting discovery or by denying it.” Dade County Medical Association v. Hlis, 372 So.2d 117, 121 (Fla. 3d DCA 1979). In this case, there is an anvil on the petitioner’s pan of the scales, and only a feather on the respondent’s.

It is undisputed that, to answer the interrogatory, the hospital would be required manually to retrieve and to review individually no less than 37,037 admission files for the year in question. The expenditure of time and money required for this endeavor is, on its face, a burdensome and oppressive one which may be justified only by a showing of clear necessity which does not remotely exist here. Union Fidelity Life Ins. Co. v. Seay, 378 So.2d 1268 (Fla. 2d DCA 1979); Goodyear Tire & Rubber Co. v. Cooey, 359 So.2d 1200 (Fla. 1st DCA 1978); Sobering Corp. v. Thornton, 280 So.2d 493 (Fla. 4th DCA 1973). More important is the fact that any revelation of the contents of the documents concerning other patients who have no connection whatever with this litigation will, to a greater or lesser' extent, impermissibly compromise their right to the confidentiality of their .medical records which is protected from such incursions by both decisional and statutory law. Dade County Medical Association v. Hlis, supra; American Health Plan, Inc. v. Kostner, 367 So.2d 276 (Fla. 3d DCA 1979); Argonaut Ins. Co. v. Peralta, 358 So.2d 232 (Fla. 3d DCA 1978), cert. denied, 364 So.2d 889 (Fla.1978); Sections 90.503, 390.002, 394.459(9), 395.19, 395.202, 397.053, 827.07(15), Florida Statutes (1979).

As against these impressive reasons for refusing to permit discovery, Royal Palm’s showing for requiring it was nebulous at best. It seeks to establish that there were no prior examples of similar coverage afforded a North Miami patient, as a means of showing that the hospital should not have believed Royal Palm’s assertion that coverage indeed existed in this particular case. There are several things wrong with this contention. First, under Besett v. Basnett, 389 So.2d 995, 998 (Fla.1980), one’s reliance does not constitute a defense to a deliberate misrepresentation “unless he knows the representation to be false [] or its falsity is obvious to him.” [e. s.] The fact, if it is one, that the hospital knew that there was no coverage in previous cases would seem not even to be relevant, and is certainly not significant, to this pivotal issue of whether the defendant’s statement was objectively, “obviously” untrue. Moreover, if, arguendo, lack of knowledge is at all pertinent, Fairbanks, the person who dealt with Royal Palm, specifically said she had no recollection of any prior instance; her testimony was thus favorable to the respondent on this point. The employee who said otherwise, and who was therefore unfavorable, Combs, did not rely on the representation. For this reason, the hospital concedes that it could not introduce her testimony affirmatively to show the reasonableness of its reliance on Royal Palm’s statement. See Britton v. Poore, 57 Fla. 45, 49 So. 507 (1909). Yet, as the interrogatory itself shows, Royal Palm’s hope of impeaching Combs’ testimony forms the real basis of the discovery effort now before us. But see, Williams v. Thomas Jefferson University, 343 F.Supp. 1131 (E.D.Pa.1972) (discovery of confidential hospital records solely for impeachment unjustified). In sum, the defendant seeks information which may or may not impeach an unhelpful witness who cannot testify against it on a point upon which it has admissible favorable testimony and which is of very dubious relevance anyway. It is clear that the order below requiring discovery on such a basis, notwithstanding the countervailing considerations which have been discussed, may not stand.

Certiorari granted.

      . There is no claim that the hospital knew the statement was false.


text:
    Kenneth Wayne DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-840.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.
    Kenneth Wayne Davis, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from an order denying a motion for rehearing addressed to the denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that the motion presents no ground for relief, the denial of the motion is therefore affirmed.


author: DAUKSCH, Chief Judge.

text:
    Robert BAGLEY, Appellant, v. STATE of Florida, Appellee.
    No. 79-31.
    District Court of Appeal of Florida, Fifth District.
    May 13, 1981.

      Donald A. Lykkebak, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Chief Judge.

Appellant Robert Bagley appeals the judgment adjudicating him guilty of possession of controlled substances and the sentence imposed. The appellant was charged by two informations, which were subsequently consolidated, and his arrest on both charges was incident to the execution of a search warrant at his residence. After the appellant’s motion to suppress evidence and motion to suppress contents of intercepted wire communications were denied, he pleaded nolo contendere with reservation of right to appeal from the orders denying his motions to suppress. The appellant raised five points on appeal, three of which we find have merit. We hold that the trial court erred in denying the appellant’s motions to suppress contents of intercepted wire communications, motion to suppress evidence and the sentence imposed is illegal, the state conceding this last point.

The facts are as follows: Agents of the Orlando Police Department focused a vice investigation on a suspect not a party to this appeal. An agent of the department subpoenaed the telephone tolls of the suspect’s number and discovered that approximately sixty calls had been made within a three month period from the suspect’s number to Bagley’s number, 892-8526, in St. Cloud. On January 9, 1978, the agent obtained a wire tap authorization for the original suspect’s number. After implementing the wire tapping, one call was intercepted to Bagley’s number, 892-8526. The agent then made application on January 16, 1978, for wire tap intercept on phone 892-8526. That application was granted the same day.

On January 19,1978, agents attempted to install the wire tap on 892-8526 in St. Cloud but discovered that the residence was abandoned and the number disconnected. The agents again subpoenaed telephone records and found that a phone number 847-4163 was listed to the appellant on Pleasant Hill Road in Kissimmee, Florida. An agent then prepared an amendment to his original application. The amendment specifically incorporated by reference the original application and its accompanying affidavit by “[tjhat all other information in the original affidavit and application unchanged.” The amendment did not set forth any additional information which had been gained through conventional surveillance techniques. The order was signed January 23, 1978, and the tap installed January 24, 1978. The tap was concluded on February 21, 1978.

On February 20, 1978, an agent submitted an affidavit for a search warrant; the contents of the affidavit included references to the content of conversations intercepted in the wire intercept of telephone number 847-4163.

We find that the supplement and amendment to the original affidavit is insufficient on its face. The fact that the original valid affidavit was incorporated by reference, and thus “tacked” onto the subsequent affidavit, cannot cure the insufficiency. Wilson v. State, 377 So.2d 237 (Fla.2d DCA 1979).

Both section 934.09(1), Florida Statutes (1979), and its federal counterpart, 18 U.S.C. § 2518(1), state that“[e]ach application for an order ... shall include the following .... ” (emphasis added). Section 934.09(l)(a)-(f) then sets forth the procedural requirements for an application for an order authorizing a wire tap. Said sections do not except amendments and supplements from its requirements. The Florida Supreme Court has pointed out that chapter 934, Florida Statutes, authorizing interception of wire or oral communications of persons, is a statutory exception to the federal and state constitutional right to privacy. In re Grand Jury Investigation, 287 So.2d 43 (Fla.1973). As an exception to a constitutional right, it must be strictly construed. The statutory mandates must be strictly followed as “Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping and evinced the clear intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications.” United States v. Giordano, 416 U.S. 505, 513, 94 S.Ct, 1820, 1827, 40 L.Ed.2d 341 (1974).

While the original affidavit and application are sufficient in all aspects, the amendment, however, is deficient. Section 934.-09(l)(e), Florida Statutes (1979), requires “A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” In the original application for wiretap, the affiant declared that it was difficult to surveil Bag-ley’s residence because there were no positions the affiant could sit without being detected. The amendment makes no reference at all to the success or failure of the surveillance techniques employed at the new location. The amendment also fails to state why routine methods of surveillance could not be used at the new location.

Furthermore, the authorization for the amended application for the new number signed by the state attorney which is required by section 934.07, Florida Statutes (1979), states that he has no knowledge of any previous applications made involving any of the persons referred to in the application, Bagley being one. Failure to disclose information about prior wiretaps and wiretap applications involving persons whose communications were going to be intercepted requires suppression of evidence obtained by such wiretaps. State v. Aurilio, 366 So.2d 71 (Fla. 4th DCA 1978). Since the amended affidavit was based solely on the facts set out in the original affidavit, the trial court erred in denying the appellant’s motion to suppress contents of the intercepted wire communications.

The affidavit in support of the search warrant for Bagley’s home relied on information obtained from the wiretap. Since we have ruled that the wiretap was illegal, the motion to suppress evidence should have been granted.

As to the sentence imposed, the appellant was found guilty on two counts for violating section 893.13(l)(a), (e), Florida Statutes, a third degree felony punishable by a maximum term of imprisonment of five years; and one count for violating section 893.13(3)(a)(4), Florida Statutes, also a third degree felony. The appellant was sentenced to four years on each count, followed by two years probation on each count, totally six years for each count. In State v. Holmes, 360 So.2d 380 (Fla.1978), the court held that the combined time spent incarcerated and on probation must not total more than the maximum period of incarceration allowed by statute for the offense. Therefore, the trial court erred in the sentence he imposed upon the appellant.

The orders denying suppression of evidence are reversed and the conviction is set aside and this cause is remanded in order to permit appellant to withdraw his plea of nolo contendere. Upon remand the trial court should again hear the appellant’s motion to return seized property and return to the appellant all items of a non-contraband nature.

REVERSED AND REMANDED.

ORFINGER and COBB, JJ., concur.


author: COWART, Judge.

text:
    COMPASS ENTERPRISES, INC., Appellant, v. Alfred H. EARLS and Rose A. Earls, his wife, Appellees.
    No. 80-29.
    District Court of Appeal of Florida, Fifth District.
    May 13, 1981.
    Kenneth D. Morse of Matthias & Matthias, P. A., Orlando, for appellant.
    Richard H. Langley, Clermont, for appel-lees.
   COWART, Judge.

Appellees gave appellant a note and mortgage to evidence and secure certain indebtedness. Later, appellees executed and delivered to appellant a deed to the same property contained in the mortgage. Still later, when appellees learned that the deed had been recorded, suit was filed to have the court declare that the deed was a security device and that appellees had a right of redemption. Appellant answered admitting the execution of the note, mortgage and deed, but denying that the deed was executed for security and also counterclaiming for foreclosure of the mortgage. On the day for non-jury trial, counsel for the parties met in an informal pre-trial conference with the trial judge and stipulated as to the controverted and uncontro-verted evidentiary facts. The trial court thereupon advised trial counsel that they had the right to go forward with evidence but that he could rule on the stipulated facts that the deed was a mortgage, that appellees were in default, and that appellant was entitled to foreclosure. Counsel accepted the court’s ruling and stipulated as to the sums involved; thereupon the trial judge entered final judgment of foreclosure without taking evidence. Appellant discharged its trial counsel and appealed, arguing that the trial court abused its discretion by declaring the deed to be a mortgage without a motion and without an evidentia-ry hearing. We affirm.

Appellant argues that the stipulation of counsel on November 27, 1979, was not in writing and subscribed by the parties or attorneys as required by Florida Rule of Civil Procedure 1.030(d). That rule was repealed June 14, 1979, effective July 1, 1979, In re Fla. Rules of Judicial Administration, 372 So.2d 449 (Fla.1979), and, in any event, did not relate to stipulations of counsel made before the court. Although Florida Rule of Civil Procedure 1.200 contemplates a formal pre-trial conference after notice and followed by a formal written order, in actual practice it is common for counsel and the trial court to confer immediately before trial, especially in non-jury trial cases, to narrow the issues upon which evidence need be taken. The- trial court is justified in accepting and relying upon the admissions and agreements of counsel at such conferences and letting them control the subsequent course of the proceedings. If it appears from such conference that there is no issue as to any material ultimate fact and that only a question of law is presented as to the effect of the admitted, agreed or stipulated facts, then the court and counsel need not perform the useless act of calling witnesses and the court may forthwith without motion rule on any points of law and proceed to dispose of the matter without the taking of evidence, especially when, as here, the court does not deny either counsel the opportunity to present evidence and proceeds without objection by them.

The final judgment of foreclosure is

AFFIRMED.

ORFINGER and COBB, JJ., concur.


text:
    Roland TERRY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1013.
    District Court of Appeal of Florida, Fifth District.
    May 13, 1981.
    James B. Gibson, Public Defender, and Steven C. Van Voorhees, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

Appellant was found guilty of attempted armed robbery. Armed robbery is a felony of the first degree. § 812.13(2)(a), Fla.Stat. (1979). An attempt to commit a felony of the first degree is a felony of the second degree. § 777.04(4)(b), Fla.Stat. (1979). The maximum sentence for a second degree felony is fifteen years. § 775.082(3)(c), Fla. Stat. (1979). Appellant’s thirty year sentence on Count I of an attempted armed robbery is hereby reduced to the fifteen year maximum provided by law. Appellant’s other judgments and sentences are supported by substantial competent evidence and are affirmed.

AFFIRMED in part; REVERSED in part.

COBB and UPCHURCH, JJ., concur.