text:
    STATE of Florida, Appellant, v. Barbara Ann WILLIAMS, Appellee.
    No. 80-249.
    District Court of Appeal of Florida, Second District.
    June 27, 1980.
    Rehearing Denied July 29, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.

      Jack 0. Johnson, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellee.
   SCHEB, Acting Chief Judge.

The state challenges the trial court’s order granting the defendant’s pretrial motion to suppress her confession. We have jurisdiction. § 924.071(1), Fla.Stat. (1979). We agree that the confession was improperly suppressed and reverse.

The state charged Barbara Ann Williams with grand theft, and prior to trial she moved to suppress a confession she had given to the police. At the suppression hearing Williams and Officers Hunley and Street of the Lakeland Police Department testified. The officers stated that shortly before midnight they were called to a local lounge to investigate a theft of money from a patron. Upon completion of their investigation, they arrested Williams. The officers realized she had been drinking but they testified that she was not intoxicated. They each stated that they gave her Miranda, warnings at the lounge and that she denied any involvement in the theft. They took her to the nearby police station but did not readminister the Miranda warnings. At no time did they have her sign an acknowledgment of the warnings or a waiver of her constitutional rights. She again denied any involvement in the theft. At the station she became upset and asked the officers if they would forget the incident if she returned the money. The officers testified that they told her that they could not do this, and that she started crying and spontaneously told them that she had taken the money. They also stated that at no time did they make any threats or promises.

Williams testified that after having a number of drinks, she had gone to the lounge. There she had several more. She described herself as being intoxicated and said she could not remember whether the officers had given her Miranda warnings. She stated that during the questioning at the police station, the officers yelled at her causing her to become upset.

In granting the motion to suppress, the court noted that the police had not attempted to have Williams sign an acknowledgment of the warnings of a waiver of her constitutional rights, and that they had not attempted to tape her confession, although they had the facilities to do so. The court further observed, “Everything else I agree with you [the state]; it appears that everything is probably spontaneous and so forth . .” Finally, in explaining the basis of its ruling, the court noted:

If they continue to question without restating the rights, then I believe there’s, you cannot do that without restating the rights.
[T]hey didn’t have the going, the tape recording or whatever, or they didn’t get her to sign something and, also, there’s not a period of time. But after she denies it out there [at the lounge] and she’s read her rights . . . But then they take her down to the police station and she’s down there for x amount of time, and there’s no real good showing as to how long, and then, ultimately, she makes some statements . . . [a]nd I just feel that there’s a question as to the voluntariness of it under those circumstances, and there is also a question as to whether or not she should have been read those rights again; and I believe she should have been.

Even though the trial court stated that the police held Williams at the station “for x amount of time,” it appears she confessed within a few hours after her arrest. Both the officers and Williams testified that she had been drinking. We note that while intoxication could have rendered the confession involuntary, the trial court did not comment on Williams’ state of intoxication. Thus, as we interpret the court’s ruling, it held the confession involuntary because the police failed to obtain a written waiver from Williams, failed to readminister Miranda warnings at the police station, and failed to tape-record her confession.

The trial court’s rationale was not well-founded. “[T]here is no constitutional requirement that a waiver is valid only if written and signed in the presence of two witnesses. . . .” Jordan v. State, 334 So.2d 589, 592 (Fla.1976). Hence, although obtaining written waivers might be the better practice, it is not required.

In addition, the officers were not required to readminister Miranda warnings to Williams at the police station. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court stated that opportunity to exercise constitutional rights must be afforded to a defendant throughout the interrogation. Generally, however, a single giving of Miranda warnings is sufficient. See Biddy v. Diamond, 516 F.2d 118 (5th Cir. 1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 194 (1976); Maguire v. United States, 396 F.2d 327 (9th Cir. 1968), cert. denied, 393 U.S. 1099, 89 S.Ct. 897, 21 L.Ed.2d 792 (1969). In the present case the officers gave Williams her Miranda warnings immediately upon placing her under arrest, and it appears she understood these rights and indicated a willingness to speak with the officers. Under the cases we have cited, this was adequate.

We also know of no authority, and Williams has cited us to none, requiring the police to tape-record confessions. Thus, the court erred as a matter of law in suppressing Williams’ confession on the stated grounds.

The testimony shows that Williams was apprehensive and upset during the police interrogation. Yet, the testimony does not reveal any threats or coercion by the police. As this court observed in Ebert v. State, 140 So.2d 63 (Fla.2d DCA 1962), a confession may not be excluded merely because it was made under excitement or mental disturbance not induced by extraneous pressure, but which arose from apprehension due to the situation in which the accused found himself.

We vacate the order suppressing Williams’ confession and remand for further proceedings.

RYDER and CAMPBELL, JJ., concur.

      . In Walls v. State, 279 So.2d 95 (Fla.2d DCA 1973), we held that a defendant should have been given a second set of warnings. There, however, several weeks had elapsed since the first warnings whereas here, the questioning of Williams took place within a few hours after she was arrested and read her Miranda warnings. Therefore, the officers were not obligated to readvise her of her rights.


source: Caselaw Access Project

author: DAUKSCH, Chief Judge.

license: Public Domain

text:
    Jody Lou McGEORGE, Appellant, v. STATE of Florida, Appellee.
    No. 00-454-/T1-145.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.
    Rehearing Denied July 27, 1980.

      Michael J. Minerva, Public Defender, and Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from an order withholding adjudication of guilt and placing appellant on probation for five years, after a jury found him guilty of burglary of a conveyance. Appellant alleges as error the refusal of the trial court to grant a motion for judgment of acquittal made only at the close of the state’s case. We have examined the evidence and agree with the trial judge who found the evidence sufficient to establish a prima facie case. Because the motion was not renewed at the close of all the evidence and the appellant did not file a motion for new trial, we have resolved all reasonable inferences in favor of the state and find the evidence legally sufficient to support the verdict. Vazquez v. State, 350 So.2d 1094 (Fla. 3d DCA 1977), cert. denied 360 So.2d 1250 (Fla.1978); Lynch v. State, 293 So.2d 44 (Fla.1974); Mancini v. State, 273 So.2d 371 (Fla.1973). Rule 3.380(b), Fla.R.Crim.P. (1977).

Appellant has alleged as error certain provisions of the order placing him on probation. The first is the requirement that he “shall consent to a search of himself or any vehicle or premises under his control at any time by any law enforcement officer.” This is wrong and that requirement is hereby stricken from the order. Grubbs v. State, 373 So.2d 905 (Fla.1979); Pace v. State, 373 So.2d 911 (Fla.1979); Isaacs v. State, 373 So.2d 911 (Fla.1979). The requirement that this indigent appellant pay his court costs as a condition of probation is affirmed. State v. Byrd, 378 So.2d 1231 (Fla.1979).

The requirement that the accused appellant had to “waive any notice of a hearing” to set a fee and impose a lien against the accused in order for him to obtain the services of a public defender is also wrong. This is an infringement upon the appellant’s constitutional right to counsel because it requires the abandonment of a statutory right to have notice and be heard before the fee is set and the lien attaches. Sec. 27.56(7), Fla.Stat. (1979); Gryca v. State, 315 So.2d 221 (Fla. 1st DCA 1975). The provision in the order placing appellant on probation requiring the payment of the public defender fee is stricken without prejudice to set the fee after notice and hearing in compliance with section 27.-56(7), Florida Statutes (1979).

AFFIRMED AS MODIFIED.

ORFINGER and SHARP, JJ., concur.


author: PER CURIAM.

text:
    Margaret Marie COUNCIL, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1874.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    Rehearing Denied Aug. 15, 1980.
    Solomon & Mendelow and Harold Mende-low, Charles Snowden, Miami, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Appellant, Margaret Marie Council, appeals her conviction and sentence, including probation, for grand larceny. Appellant’s sentence was withheld and she was placed on probation for five years. A condition of the probation provides that appellant is to be confined for fifty-two weekends in the Dade County Jail.

Appellant urges reversal on the grounds that (1) the trial court erred in failing to dismiss the cause as being barred by the statute of limitations; (2) the mandatory sentence imposed as a condition of probation was not reasonably related to a rehabilitative purpose and its primary purpose was to punish; (3) the trial court erred in failing to dismiss the information for failure to state a crime under the laws of Florida.

We have carefully considered appellant’s points on appeal in the light of the record, briefs and argument of counsel and have concluded that no reversible error has been demonstrated. Therefore the judgment of conviction and sentence are affirmed.

Affirmed.


author: ANSTEAD, Judge.

text:
    MIDLANTIC NATIONAL BANK, Appellant/Cross Appellee, v. COMMONWEALTH GENERAL, LTD., and Melvin Kaplan, Appellees/Cross Appellants.
    No. 78-919.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1980.
    Rehearing Denied Aug. 18, 1980.

      William E. Sadowski and Robert J. Schaf-fer of Helliwell, Melrose & DeWolf, Miami, for appellant/cross appellee.
    Jack F. Weins of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellees/cross appellants.
   ANSTEAD, Judge.

This is an appeal by Midlantic National Bank from adverse provisions of a final judgment entered in an action involving numerous credit and loan transactions between the parties. We reverse.

Midlantic filed a complaint seeking by one count to recover from Commonwealth General the amount due on a promissory note, and by two other counts to recover from Melvin Kaplan on personal guaranties executed to secure payment of Commonwealth General’s unpaid note and a debt of Commonwealth’s subsidiary corporation, Commonwealth Silver Exchange, Inc.

Both defendants counterclaimed alleging that Midlantic had fraudulently induced Kaplan to pledge certain personal certificates of deposit to the bank in exchange for a promise by the bank to extend a line of credit to Commonwealth General. Kaplan sought to recover $200,000.00 of the pledged certificates applied by the bank to pay other loans in default, and Commonwealth sought to recover damages for the entire loss of its business allegedly due to the bank’s failure to fund the line of credit. Kaplan also sought punitive damages from the bank.

Following the conclusion of a two day jury trial, the jury, after Midiantic’s motions for directed verdict were denied, returned verdicts, upon which judgment was entered, awarding Midlantic $43,044.98 against Commonwealth General and $31,-820.82 against Kaplan as to his guaranty of the debt of Commonwealth Silver Exchange, Inc. Recovery against Kaplan on the guaranty of Commonwealth’s note was denied. The jury also awarded $100,000.00 plus $25,000.00 punitive damages to Kaplan and $200,000.00 to Commonwealth General against Midlantic on their counterclaims.

The parties had done business with each other for many years. In July of 1975, Commonwealth General and two of its subsidiaries, Commonwealth Silver Exchange, Inc. and Comwel Development Corp., all corporations controlled by Kaplan, were in need of additional financing. Numerous loans by the bank to Kaplan and the corporations were then outstanding. Kaplan informed the bank of the need for additional financing and requested a $400,000.00 unsecured line of credit. The bank ultimately agreed to extend a $400,000.00 line of credit to Kaplan^ $100,000.00 of any future loans made under the line to be unsecured, and $300,000.00 of any such loans to be secured by Kaplan’s personal certificates of deposit previously purchased by Kaplan from Mid-lantic. No commitment fee was paid for the line of credit and no written agreements were made as to the terms of the line of credit.

Subsequently, Midlantic lent monies to Kaplan and Kaplan executed notes therefor, under the line of credit, with the knowledge of the bank that the monies borrowed would be funded to Commonwealth General and then disbursed to the financially troubled subsidiaries. Kaplan repaid $100,000.00 of his borrowing and a $100,000.00 certificate given as security was released to him. In addition, separate loans, not involving the line of credit, were made to Commonwealth. In September of 1975, Midlantic was notified that Commonwealth Refining Company Limited, a subsidiary of Commonwealth General, had gone into bankruptcy. As a result, the bank refused to authorize any further loans to Kaplan under the line of credit. Subsequently, upon the bank’s request, Kaplan executed unlimited personal continuing guaranties for the loans of Commonwealth General and its subsidiary, Commonwealth Silver Exchange, Inc. When two of Ka-plan’s certificates of deposit with the bank in the total amount of $200,000.00 matured, the bank applied the proceeds of the certificates against outstanding unpaid loans due from Kaplan and Commonwealth General. Two other loans, subjects of the bank’s lawsuit here, remained unpaid.

A line of credit is a limit of credit to cover a series of transactions. Frell v. Dumont-Florida, Inc., 114 So.2d 311 (Fla. 3d DCA 1959); Pittinger v. Southwestern Paper Co., 151 S.W.2d 922 (Tex.Civ.App.1941). Also see Grandin Indus., Inc. v. Florida Nat. Bank at Orlando, 267 So.2d 26 (Fla. 4th DCA 1972). It does not impart upon the bank the legal responsibility to loan up to the limit or a responsibility of the lender to borrow up to the limit, but merely facilitates the easier extension of credit. Accordingly, if information later comes to light which reflects upon a borrower’s ability to satisfy his debts, a bank need not fund the entire line of credit.

Kaplan’s counterclaim alleges that by advising him that the purpose of the pledge was for the advance of credit to Commonwealth General, the bank fraudulently induced him to pledge his certificates of deposit, when in fact the purpose of the pledge was to make the certificates of deposit available to the bank as security against other loans made to Kaplan’s corporations. However, at trial no evidence was presented as to any fraud or false representations made by the bank to secure the certificates as collateral. To the contrary, the bank agreed to and did initially fund the line of credit. There was no evidence presented indicating the bank secured the certificates as security knowing then that it was going to subsequently terminate the line of credit and apply the certificates to other loans guaranteed by Kaplan. In short, we do not believe Kaplan presented sufficient competent evidence to allow his claim to go to the jury. In addition, of course, we must set aside the award of punitive damages which was based on the same allegations of fraud.

The counterclaim of Commonwealth General alleged that the bank had made and breached an agreement to extend the line of credit to Commonwealth General and that as a result of the breach Commonwealth was unable to meet its financial obligations and went out of business. First, we believe that the proof establishes that the line of credit was extended to Kaplan, not Commonwealth or its subsidiaries. The fact that the funds borrowed under the line of credit went to Commonwealth and its subsidiaries is not sufficient to establish that the line was extended to Commonwealth, especially, in view of the direct evidence to the contrary. More importantly, the bank was under no legal obligation to completely fund the line of credit, regardless of whether it was extended to Ka-plan or Commonwealth. As noted previously, neither party is lawfully bound to loan or borrow the maximum amount provided for in a line of credit. Absent some other contractual arrangement, and there is no evidence that the bank entered into any other such arrangement, the bank was within its rights when it terminated the line of credit. Grandin Indus., Inc., supra.

We also believe that the bank was entitled to a directed verdict on Count II of its complaint. The bank established its right to recover under Kaplan’s guaranty and there is no evidence to support Kaplan’s defenses of failure of consideration or fraudulent inducement. See Gibbs v. American National Bank of Jacksonville, 155 So.2d 651 (Fla. 1st DCA 1963) and Ostreyko v. B. C. Morton Organization, Inc., 310 So.2d 316 (Fla. 3d DCA 1975).

Finally, the bank contends that the lower court abused its discretion by denying its claim for a new trial on damages under Counts I and III of the complaint because of the failure of the jury to award it interest on its liquidated claims. At oral argument appellees candidly conceded that the bank was entitled to interest and stipulated that an additur could be entered.

The bank has alleged that other substantial errors occurred in the proceedings below, but in view of our conclusions discussed above we do not find it necessary to reach those issues.

In conclusion, the final judgment in favor of Kaplan and Commonwealth General on their counterclaims against Midlantic Bank are hereby reversed and remanded with directions that judgment be entered in favor of Midlantic, and the judgment for Kaplan under ; Count II of Midiantic’s complaint is reversed with directions that judgment be entered in favor of Midlantic for the appropriate principal and interest. Finally, the trial court is directed to enter an additur for interest to the judgments recovered by Midlantic under Counts I and III of its complaint.

LETTS, C. J., and DOWNEY, J., concur.

      . The parties have not been able to supply us with a definition for a line of credit. However, two that we have found from trade publications are set forth:
      Although definitions vary, it is useful for banks to distinguish lines of credit from commitments. A line of credit is a specified amount that can be borrowed from time to time and that can be cancelled by either party at any time. Every line carries a specific internal review date and is reviewed at least annually. A commitment, on the other hand, is defined as an agreement signed by both borrower and lender for a specified amount and for a definite period — not to be cancelled except under the conditions set forth in the agreement. Every commitment must have a stated expiration date. For this assurance of credit availability, the bank’s customer pays a fee. Whenever a credit line or commitment is in effect, a loan can be made any time thereafter at the request of the borrower. Bank Administration Institute, Bank Administration Manual Volume I
      An agreement between a bank and a customer whereby the bank agrees, over a future period, to lend the customer funds up to an agreed maximum amount. The bank has the option to withdraw from the agreement if the financial status of the borrower changes, or if the borrower fails to use the line of credit for its intended use as per the agreement. The customer may borrow as much of the “line” as is required and pays interest on the borrowed portion only. A line of credit is widely used by large organizations for the future commitments and purchases of inventory. The bank is fully entitled to periodic financial reports from the borrower so as to be constantly informed on his credit status.
      NCR, Financial Terminology

      . That right was one given to the bank by virtue of the continuing guaranties, which gave the bank a general lien upon any of Kaplan’s assets which were in the bank’s custody and control including the certificates of deposit which matured long after the bank terminated the line of credit.

      . In their brief the appellees appear to suggest that both Commonwealth’s and Kaplan’s counterclaims are actually predicated upon the breach of a separate oral agreement to lend money. However, our examination of the record reflects a complete absence of proof as to the terms, much less the breach, of any such agreement.


author: BOARDMAN, Judge.

text:
    Peter E. HACKETT, Appellant, v. STATE of Florida, Appellee.
    No. 79-1581.
    District Court of Appeal of Florida, Second District.
    July 2, 1980.
    Rehearing Denied July 29, 1980.
    Daniel J. Grieco, St. Petersburg, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant pled nolo contendere to charges of possession of diazepam and cocaine in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, reserving the right to appeal the denial of his motion to suppress evidence. The sole question for our consideration is whether the trial court erred in denying appellant’s motion. Upon review of the record, we reverse.

The facts are as follows: Peter Hackett, his wife, and minor child rented a room in the Gulf Towers Motel in Indian Rocks Beach. When they checked out, they had paid $180 of their bill leaving an amount unpaid of approximately $600. Their luggage, consisting of several bags, was left in the room; they informed Mrs. Schiefer, owner of the motel, that they were going to Western Union to pick up the money they owed and would return to pay the bill. Not having heard from appellant by 1 p. m., Schiefer removed the luggage from the room and stored it. Later that day, around 5 p. m., appellant telephoned Schiefer and told her that his money had not arrived, whereupon she gave him until 5 p. m. the following day to pay the bill. However, when appellant had not contacted her by late the following afternoon, she became uneasy and contacted the police. Two officers came to the motel and were advised that appellant’s luggage was in storage. The suitcases were opened, and the officers and Mrs. Schiefer looked through the luggage for identification and for another address on appellant. During the search Sergeant Richard Cantelmo found a pouch, a Florsheim shoe bag, inside a purse in one of the suitcases. Inside the pouch was a plastic bag containing white powder. After finding this pouch, the officers put everything back in the suitcases and took the luggage to the police station.

The sergeant returned to the motel and waited for appellant to return because he had been told by Mrs. Schiefer that appellant had been telephoning her and had promised to return and pay the bill. Appellant did not return, and later Sergeant Can-telmo was instructed to go to the Surf Motel in Bellair Beach. There he located appellant and his wife. He approached them and advised them that he was investigating their failure to pay their Gulf Towers Motel bill and asked that they return with him to headquarters. At the police station appellant was questioned by the police outside the presence of his wife, who was in another room in the police station. Appellant was asked if he would consent to a search of his luggage. Appellant agreed and signed a consent form. At no time was appellant advised by the officers that his luggage had already been searched or that suspected contraband had been found in one of the suitcases. The luggage was then opened and searched in front of appellant, and the Florsheim bag Cantelmo had already seen, a plastic baggie with residue on it, a strainer with residue on it, a silver spoon, and an envelope containing five vali-um tablets were found.

It is clear that on these facts the warrantless search of appellant’s luggage was illegal and violative of the Fourth and Fourteenth Amendments to the Constitution of the United States and Article 1, Section 12 of the Constitution of the State of Florida.

We cannot agree with the state’s contention that the suitcases were in effect abandoned. Appellant had at all times exhibited an intention to return for his luggage as soon as he had obtained the funds to pay his outstanding bill; he had in effect left his luggage as collateral, which he intended to redeem. The circumstances here are not analogous to the situation in Jones v. State, 332 So.2d 615 (Fla.1976), upon which the state relies. There the defendant had “left town hurriedly on an obviously one-way trip north,’’ id. at 618, and had clearly abandoned the belongings he had left in the shack in which he had been living.

The state next contends that even if appellant possessed a reasonable expectation of privacy in the contents of the suitcases, he waived that expectation by consenting to the search. Not so. Our supreme court in Norman v. State, 379 So.2d 643 (Fla.1980), stated that although consent obtained after illegal police activity positively taints and renders involuntary any consent to search, voluntary consent will purge the taint of illegality and overcome the presumption of inadmissibility when (1) there is an absence of coercive tactics in securing the consent and (2) there are present significant intervening occurrences between the illegality and the evidence sought to be used. Appellant was being investigated for defrauding an innkeeper, an offense for which he was never arrested or charged. He was at the police station during his interrogation and was not free to leave. In our view he was in a coercive setting. The state failed to meet its required burden of proof that the consent was voluntary. Bailey v. State, 319 So.2d 22 (Fla.1975); Sheff v. State, 329 So.2d 270 (Fla.1976).

The record shows no exigent or other exceptional circumstances; therefore, the warrantless intrusion into appellant’s luggage was Unreasonable. The seizure of the contraband was the fruit of an unlawful search, and the evidence should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The order of the trial court denying the motion to suppress the evidence is REVERSED, and appellant is ordered discharged.

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


text:
    Bruce A. MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    No. 79-2331.
    District Court of Appeal of Florida, Second District.
    July 16, 1980.
    Robert E. Jagger, Public Defender, and Bruce G. Howie, Asst. Public Defender, New Port Richey, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed on the authority of Killian v. State, 387 So.2d 385 (Fla. 2d DCA 1980).

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


author: NESBITT, Judge.

text:
    TABATCHNICK’S II, INC., Appellant, v. Lance S. DAVIS, Appellee.
    No. 78-1836.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.

      Donsky & Diner, Miami, for appellant.
    Norman K. Schwarz and Michael Schiff-rin, Miami Beach, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   NESBITT, Judge.

Appellánt (Tabatchnick’s) seeks reversal of a money judgment in the amount of $15,000 plus interest awarded to appellee (Davis) in an action for breach of contract. We find the award to be proper and affirm.

Davis entered into an option contract to purchase Tabatchnick’s’ interest in a restaurant which was then under construction. The consideration was $25,000 to be paid in installments, $15,000 of which had been paid at the time the action below was commenced. The option was to become effective September 1,1975 and run for a period of two years. As part of the agreement, the plaintiff was to be employed by Ta-batchnick’s at another restaurant operated by it. The purpose of the employment was to afford Davis the necessary training and experience in restaurant operation. For his employment, he was to receive $250 per week and be furnished with a station wagon for business and personal use. Davis commenced employment in February, 1975 and continued working until April, 1976 while the other restaurant he expected to purchase was under construction. Tabatch-nick’s did not obtain possession of the premises leased for the new restaurant nor did it commence making leasehold improvements, required by the option contract, until March, 1976. During this time and more particularly after September 1, 1975, Davis was paid an hourly rate which was less than the agreed compensation and was not provided with a vehicle for personal use. In July, 1976, Davis commenced this action for breach of contract and money damages. Following a nonjury trial, the court awarded him a $15,000 money-judgment plus interest.

It is Tabatchnick’s’ position that the trial court erred in awarding money damages because restitution was allowable under these circumstances only on a theory of rescission, International Realty Associates, Inc. v. McAdoo, 87 Fla. 1, 99 So. 117 (1924), and then only where the breach was so material that it permeated the entire contract, Steak House Inc. v. Barnett, 65 So.2d 736 (Fla.1953), and where there is no adequate remedy at law, Duncan Properties v. Key Largo Ocean View, Inc., 360 So.2d 471 (Fla. 3d DCA), appeal dismissed, 362 So.2d 1054 (Fla.1978).

Tabatchnick’s correctly argues that Davis, having sued on the contract, necessarily affirmed it rather than disavowing it as required when bringing a suit for rescission. Hustad v. Edwin K. Williams & Co.-East, 321 So.2d 601 (Fla. 4th DCA 1975), cert. denied, 333 So.2d 41 (Fla.1976). Implicit in Tabatchnick’s’ argument is that the money damages paid by Davis toward the franchise are not recoverable by way of damages for breach of contract. We agree that Davis might have utilized the remedy of rescission. We disagree with the argument that he may not recover in an action for breach of contract.

In United States v. Behan, 110 U.S. 338, 344-45, 4 S.Ct. 81, 83-84, 28 L.Ed. 168, 170 (1884), that court stated:

The prima facie measure of damages for the breach of a contract is the amount of the loss which the injured party has sustained thereby. If the breach consists in preventing the performance of the contract, without the fault of the other party, who is willing to perform it, the loss of the latter will consist of two distinct items or grounds of damage, namely: first, what he has already expended towards performance less the value of materials on hand; secondly, the profits that he would realize by performing the whole contract. The second item, profits, cannot always be recovered. They may be too remote and speculative in their character, and therefore incapable of that clear and direct proof which the law requires. ... If [profits are] not proved or if they are of such a remote and speculative character that they cannot be legally proved, the party is confined to his loss of actual outlay and expense. This loss, however, he is clearly entitled to recover in all cases, unless the other party, who has voluntarily stopped the performance of the contract, can show the contrary, (emphasis added)

In this case, Davis did not attempt to seek loss of profits because they were obviously too remote and speculative to be recoverable. Babe, Inc. v. Baby’s Formula Service, Inc., 165 So.2d 795 (Fla. 3d DCA 1964). Davis did seek and was properly allowed to recover the $15,000 he had already expended toward performance.

Where a right of action for breach exists, compensatory damages will be given for the net amount of the losses caused and gains prevented by the defendant’s breach, in excess of savings made possible, if established in accordance with the rules stated in §§ 330-346 [relating to foreseeability, certainty,- and avoidance of harm]

Restatement of Contracts § 329. These expenditures are caused by the making of the contract and are generally incurred before the breach takes place. The expenditures for part performance are normally fully reimbursed:

either directly or indirectly by the performance promised by the defendant; and even though not mentioned they are included in any judgment for damages measured by the contract price less the cost of completion of the plaintiff’s unfinished work. A judgment for such expenditures, therefore, is a judgment for a portion of the value promised by the defendant, the receipt of which by the plaintiff is prevented by his [the defendant’s] breach.

Corbin on Contracts § 1031.

In the present case, the trial court properly awarded Davis the expenditure made in anticipation of performance by Tabatch-nick’s.

Affirmed.

      . Davis has not cross-appealed for damages for loss of salary and loss of use of the vehicle.


text:
    SOUTH MIAMI HOSPITAL, Appellant, v. Thelma SANCHEZ, Appellee.
    No. 79-403.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.

      Adams & Ward and Robert C. Ward, Miami, for appellant.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Hawkesworth & Schmick, Miami, for appellee.
    Before HENDRY and SCHWARTZ, JJ. and CHAPPELL, BILL G., Associate Judge.
   PER CURIAM.

Following a non-jury trial in which plaintiff Thelma Sanchez sought damages from defendant South Miami Hospital for injuries sustained in a fall on April 6, 1975, while she was a patient in said hospital, final judgment was rendered in favor of Sanchez on January 18, 1979, awarding her damages in the amount of $135,000.

In its final judgment, the trial court found that Sanchez had sustained a previous cerebral stroke which left her with a residual disability for which she was under the care and treatment of Dr. Harold Sil-berman; that while undergoing physical therapy, Sanchez fell and fractured her hip; that for a brief moment while administering physical therapy, the physiotherapist left Sanchez unattended in a standing position while getting her robe, though Dr. Silberman had left orders that she be attended at all times; that during this brief moment Sanchez fell and fractured her hip; and though Sanchez was making some progress after the stroke via physical therapy, she had not sufficiently recovered so as to resume her duties as a bank teller. The trial court further found that the hospital was negligent in the care and treatment of Sanchez and that her injuries were superimposed on an existing impairment as a result of the stroke. South Miami Hospital has appealed and argues that Sanchez failed to prove the standard of care used by hospitals in the community under such circumstances and failed to prove that South Miami Hospital had fallen below that standard of care.

Upon reviewing the facts of the case, we find that it involved a charge of negligence based upon careless administration of approved medical treatment, and the trier of the fact would not need the aid of expert testimony to reach a conclusion. Sims v. Helms, 345 So.2d 721 (Fla.1977), Reynolds v. Burt, 359 So.2d 51 (Fla. 1st DCA 1978). A hospital is bound to exercise toward a patient such reasonable care as his known condition may require. Sprick v. North Shore Hospital, Inc., 121 So.2d 682 (Fla. 3d DCA 1960). What possible interpretation could be given to the doctor’s orders that Sanchez be up from bed “with help only” and that the therapist give her “standby assistance” other than “protect her from falling”? The facts speak for themselves. The hospital’s therapist was following these orders, and no matter how good were her intentions, she took a chance which left Sanchez unattended for a brief moment. Unfortunately, this moment was long enough to produce the undesired results which the doctor’s orders were intended to safeguard against and prevent. Hialeah Hospital, Inc. v. Johnson, 268 So.2d 424 (Fla. 3d DCA 1972), cert. denied, 276 So.2d 53 (Fla.1973).

The hospital also raises the issue that the award of damages was excessive and inappropriate. The determination of the amount of damages is a matter within the province of the trier of the facts, Miami Shores Village v. Brown, 286 So.2d 589 (Fla. 3d DCA 1973); Talcott v. Holl, 224 So.2d 420 (Fla. 3d DCA 1969), and the decision on the amount of damages should not be disturbed on appeal in the absence of an indication of passion, prejudice, corruption, improper motive or that the amount is so excessive as to shock judicial conscience. Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1977); Seaboard Coast Line Railroad Co. v. McKelvey, 270 So.2d 705 (Fla.1972). We find no such indications in this case.

The judgment of the trial court is affirmed.


text:
    William DOMBECK, Appellant, v. Hans U. BOTHMANN, Appellee.
    No. 79-1359.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.
    Zyne & Wehby and Rosemary J. Zyne, Miami, for appellant.
    Arthur Newman, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The summary judgment entered for the defendant below in an action for fraud is reversed because the record discloses the existence of genuine issues of material fact as to (a) whether the defendant made intentional misrepresentations to the plaintiff and (b) whether the plaintiff justifiably relied upon those misrepresentations to his financial detriment. Nessim v. DeLoache, 384 So.2d 1341 (Fla.3d DCA 1980), and eases cited; Martin v. Paskow, 339 So.2d 266 (Fla.3d DCA 1976), cert. denied, 348 So.2d 451 (Fla.1977); Alepgo Corp. v. Pozin, 114 So.2d 645 (Fla.3d DCA 1959), cert. denied, 117 So.2d 842 (Fla.1960); see Board of Public Instruction v. Everett W. Martin & Son, Inc., 97 So.2d 21 (Fla.1957); Upledger v. Vilanor, Inc., 369 So.2d 427 (Fla.2d DCA 1979), cert. denied, 378 So.2d 350 (Fla.1979).


text:
    Hubert TURNBULL and William Wolfe Burkley, Appellants, v. The STATE of Florida, Appellee.
    Nos. 79-1641, 79-1642.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and BASKIN, JJ., and TILLMAN PEARSON (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. State v. Burkett, 344 So.2d 868 (Fla. 2d DCA 1977); Campbell v. State, 365 So.2d 751 (Fla. 1st DCA 1978), cert. denied, 374 So.2d 98 (Fla.1979), cert. denied 444 U.S. 934, 100 S.Ct. 282, 62 L.Ed.2d 193 (1979); State v. Leonard, 376 So.2d 427 (Fla. 3d DCA 1979); § 934.03(2)(c), Fla.Stat. (1979).


text:
    Felicitas SANCHEZ, Appellant, v. MERCY HOSPITAL, etc., et al., Appellees.
    No. 79-1688.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, Bernard Butts, Hialeah, for appellant.
    Adams & Ward and Richard B. Adams and James W. Kaufman, Miami, Barrett & Bajoczky and C. Howard Hunter, Tallahassee, Thornton & Herdon and Jane E. Thornton, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Orderly pleading requires that the order dismissing the plaintiff’s complaint with prejudice be reversed because affirmative defenses to a claim for relief, not apparent on the face of the complaint, must be pled in an answer. Roehner v. Atlantic Coast Development Corporation, 356 So.2d 1296 (Fla. 4th DCA 1978); Poulos v. Vordermeir, 327 So.2d 245 (Fla. 4th DCA 1976); Government Employees Insurance Company v. Wheelus, 319 So.2d 181 (Fla. 4th DCA 1975). Only affirmative defenses appearing on the face of a prior pleading may be asserted in a motion to dismiss. Fla.R. Civ.P. 1.110(d); Kansas City Mortgage Company v. Burgess, 306 So.2d 161 (Fla. 4th DCA 1975); Stern v. First National Bank of South Miami, 275 So.2d 58 (Fla. 3d DCA 1973).

Reversed and remanded.


author: PEARSON, DANIEL, Judge.

text:
    Angel ESTEVEZ, Petitioner, v. Jon I. GORDON, Circuit Judge of the Eleventh Judicial Circuit, Respondent.
    No. 80-153.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.

      Bierman, Sonnett, Beiley & Shohat, Miami and Benedict P. Kuehne, West Palm Beach, for petitioner.
    Janet Reno, State’s Atty. and Ira N. Loewy, Asst. State’s Atty., for respondent.
    Before BARKDULL, HENDRY and PEARSON, DANIEL, JJ.
   ON MOTION FOR REHEARING

PEARSON, DANIEL, Judge.

Angel Estevez has moved for rehearing of this court’s denial of his petition for common law certiorari. In his petition, Es-tevez contended that the trial court departed from the essential requirements of law in ruling that it was without jurisdiction to order the return of money which was seized from Estevez in connection with a criminal case brought against him.

The State’s response to Estevez’s certiorari petition correctly conceded that the trial court had subject matter jurisdiction to rule upon Estevez’s motion for return of property. See Garmire v. Red Lake, 265 So.2d 2 (Fla.1972); Adams v. Burns, 126 Fla. 685, 172 So. 75 (1936). Its contention, however, was that since Este-vez’s motion for return of his property was not under oath, the jurisdiction of the trial court was not properly invoked. Estevez replied that the State had not made this contention in the court below.

The contention that Estevez’s motion was required to be under oath was based upon the following language from State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla. 3d DCA 1977):

“The true owner of property seized as evidence by the police upon arrest of a defendant in a criminal proceeding may make a sworn application to the judge having trial jurisdiction in the criminal proceeding for the return of such property .. . .” Id. at 407.

As we pointed out in that case, the procedure (including the sworn application requirement) was that described in Section 812.061, Florida Statutes (1979). That statute, however, deals with an application made by a rightful owner seeking to recover stolen property held as evidence by state, county or municipal authorities. It does not deal with an application made by a criminal defendant from whom property was seized.

The motion in the present case was not one made under the statute. The property which Estevez sought to recover, $2,000 in cash, was seized from him at the time of his arrest on charges of leaving the scene of an accident involving personal injury, battery on a law enforcement officer, carrying a concealed firearm, and possession of a controlled substance.

In Garmire v. Red Lake, supra, the Florida Supreme Court noted that Section 811.201, Florida Statutes (1971), the predecessor to Section 812.061,

. . is not sufficiently broad to cover all situations where items of evidence are held in custodia legis and are sought to be recovered by the true owner, it does serve as an example of procedures which the criminal courts may fashion within their inherent powers to provide necessary procedures and processes for the recovery of evidentiary items held by them.” 265 So.2d at 5 (emphasis supplied).

It is clear from both Garmire and Gerstein that the statutory requirement that a motion for return of property be made under oath is procedural only. Even had Este-vez’s motion been one made under the statute, his failure to comply with this procedural requirement would not affect the court’s jurisdiction. But since Estevez’s motion was not one envisioned by the statute, any requirement that it be under oath would have had to come from the trial court itself in the exercise of its “inherent powers to provide necessary procedures and processes for the recovery of evidentiary items held by them.” Garmire v. Red Lake, supra, at 5. If a failure to comply with the statutory procedure would not affect the court’s jurisdiction, then, a fortiori, a failure to comply with a rule made by the trial court would be non-jurisdictional. .

The record in the court below does not reflect the existence of any procedural rule imposed by the trial court that the subject motion be under oath. Neither the State nor the trial court raised this issue. Moreover, it is obvious from the record that the trial court’s ruling was not based on any procedural defect, but was based solely on its view that it lacked subject matter jurisdiction.

We hold that the trial court had jurisdiction to consider Estevez’s motion for return of property. Estevez’s motion for rehearing is granted, and our order of May 28, 1980, denying his petition for writ of certio-rari is vacated. Since mandamus is the proper procedure to test the correctness of the trial court’s determination that it was without jurisdiction, State v. Pearson, 154 So.2d 833 (Fla.1963); New Hampshire Insurance Co. v. Calhoun, 341 So.2d 777 (Fla. 2d DCA 1976); City of Coral Gables v. Sakolsky, 215 So.2d 329 (Fla. 3d DCA 1968), pursuant to Florida Rule of Appellate Procedure 9.040(c), we treat the petition for writ of certiorari as a petition for writ of mandamus and grant the petition. A peremptory writ of mandamus is hereby issued to the Honorable Jon I. Gordon, Circuit Judge of the Eleventh Judicial Circuit, directing him to exercise his jurisdiction in accordance with this opinion. If the procedures of the trial court so require, it may order that Estevez’s motion for return of property be amended so as to be under oath.

Writ of mandamus issued.

      . Since we hold, infra, that the trial court had jurisdiction notwithstanding that Estevez’s motion was not made under oath, we need not discuss Estevez’s waiver contention. If the State were correct that an unsworn motion renders the trial court without jurisdiction, then the State’s untimeliness in raising this objection' would be of no consequence. If a court is without jurisdiction, parties cannot, by failing to object, confer jurisdiction upon it. American Home Assurance Company v. Keller Industries, Inc., 347 So.2d 767 (Fla. 3d DCA 1977); Sclafani v. County of Dade, 323 So.2d 675 (Fla. 3d DCA 1975).

      . The trial judge advised Estevez’s counsel that he would have to file a separate suit for replev-in or conversion in order to recover his property. Under Garmire, supra, and Adams, supra, that ruling was clearly wrong.

      . Ordinarily, we would issue an alternative writ of mandamus which would give leave to the State to respond. However, in the present case the State has already availed itself of the full opportunity to respond to the petition for cer-tiorari and has fully briefed the issues upon which we must decide this case. Under such circumstances, we find it unnecessary to call for a further response.


text:
    Michael David STERN, Petitioner, v. Ilisa Jan GOLUB f/k/a Ilisa Jan Stern, Respondent.
    No. 80-868.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.

      Leib, Popper & Mackoul and Rory S. Stein, Miami, for petitioner.
    Barranco, Darlson, Daniel & Bluestein and A. J. Barranco, Stuart, for respondent.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Certiorari granted and the order under review is quashed on the authority of Schottenstein v. Schottenstein, 384 So.2d 933 (Fla.3d DCA 1980), and Gasparino v. Murphy, 352 So.2d 933 (Fla.2d DCA 1977); Fla.R.Civ.P. 1.360.


author: BERANEK, Judge. FARRINGTON, OTIS, Associate Judge,

text:
    Sarah May WIGGINS, Appellant, v. STATE of Florida, Appellee. Betty Louise THOMAS, Appellant, v. STATE of Florida, Appellee. Robert Henry THOMAS, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-434 to 78-436.
    District Court of Appeal of Florida, Fourth District.
    July 23, 1980.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellants.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

In these consolidated appeals, appellants challenge a condition of their probation prohibiting sexual, intercourse with individuals other than his or her lawfully married spouse, on grounds that it violates their fundamental constitutional rights and is not reasonably related to their past or future criminality. We agree as to the latter argument and strike the condition. The orders appealed are affirmed as modified.

Betty Louise Thomas pled guilty to forgery and Sarah May Wiggins pled guilty to uttering a forged instrument. Ms. Wiggins stole the check in question from the victim’s mailbox, persuaded Ms. Thomas to forge the payee’s name thereon, cashed the check at the bank, and shared the goods she purchased with the proceeds with Ms. Thomas. A jury convicted appellant, Robert Henry Thomas, of burglary of a structure. Mr. Thomas’ probation report indicates that he broke into Hunt Brothers Grocery and stole a quantity of food, all of which was recovered.

None of the appellants were married, but each has several children: Betty Louise Thomas, four children; Sarah May Wiggins, two children; Robert Henry Thomas, three children, two of whom were Sarah May Wiggins’. Ms. Wiggins gave the need to obtain food for herself and her children as her reason for stealing the check. Ms. Thomas indicated that she participated in the crime because she was desperate for money. Similarly, Mr. Thomas stated he broke into the grocery store because he needed money. The court placed all three defendants on probation for five years, with several special conditions. Only the condition prohibiting sexual intercourse is challenged on appeal.

Appellants argue that they have a fundamental right of privacy entailing freedom of choice to engage in sexual intercourse. They urge this right can be limited only when required by some compelling state interest. The State maintains the condition is reasonable and serves a useful rehabilitative purpose in that each of the appellants initially became involved in criminal activity in an effort to feed and care for their illegitimate children.

Under Florida law, constitutionally protected rights can be abridged by conditions of probation if they are reasonably related to the probationer’s past or future criminality or to, the rehabilitative purposes of probation. State v. Heath, 343 So.2d 13 (Fla.1977); Coulson v. State, 342 So.2d 1042, 1043 (Fla. 4th DCA 1977); see also Institution of Judicial Administration, Standards Relating to Probation, Section 3.2(b) (1970). In Mays v. State, 349 So.2d 792 (Fla. 2d DCA 1977), the Second District Court of Appeal struck a probation condition prohibiting probationer from living with any member of the opposite sex as overbroad. Similarly, this court held a probation condition directing probationer to “rectify” his marital situation and make his child “legitimate” within one year to be beyond the trial court’s authority. Michalow v. State, 362 So.2d 456 (Fla. 4th DCA 1978). More on point, the Second District recently invalidated probation conditions prohibiting pregnancy and marriage without the trial court’s consent because they did not clearly relate to probationer’s underlying charge of child abuse and pertained to non-criminal conduct. Rodriguez v. State, 378 So.2d 7 (Fla. 2d DCA 1979).

As the Rodriguez court stated:

In determining whether a condition of probation is reasonably related to rehabilitation, we believe that a condition is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. Id., 9.

While the trial court obviously intended to prevent the birth of additional children to alleviate additional financial pressure on appellants, the condition does not have that effect. Instead, it coerces appellants into marriage so they may lawfully engage in sex. The same, if not greater, financial pressures would result from legitimate children from a legitimate marriage. The condition, therefore, fails to meet the “reasonable relation” test since it (1) bears only a tangential relationship to the underlying crimes, (2) relates to conduct not itself criminal, and (3) requires marriage and forbids extramarital sex, both of which are not reasonably related to curtailing appellant’s necessity to steal.

Accordingly, we hold the condition prohibiting sex with individuals other than a lawfully married spouse invalid and strike these conditions from each of the probation orders appealed. The orders are otherwise affirmed as modified.

MODIFIED and AFFIRMED.

MOORE, J., concurs.

FARRINGTON, OTIS, Associate Judge, concurs specially, with opinion.

FARRINGTON, OTIS, Associate Judge,

concurring specially.

It is apparent from the record in this case that at the time of sentencing the trial judge was of the opinion, as he advised each appellant, that extramarital sexual intercourse was illegal under Florida law. However, the import of the decision of the Florida Supreme Court in Purvis v. State, 377 So.2d 674 (Fla.1979) which held the Florida fornication statute unconstitutional for the reasons indicated in note 2 of the foregoing opinion, which was decided after rendition of the probation order appealed from, is that extramarital sexual intercourse is not ipso facto illegal under Florida law unless engaged in under circumstances of licentiousness so as to run afoul of the prostitution statute, Section 796.07(l)(a), F.S. (1977) which in part defines prostitution as “licentious sexual intercourse without hire [except between husband and wife].”

I agree that the challenged probation condition bears only a tangential relationship to the underlying crimes and should be stricken as overbroad, since it prohibits all extramarital sexual intercourse by appellants during the probation period. If the prohibition had been limited to “licentious” extramarital sex it would have been valid as a prohibition against illegal activity.

      . In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), which upheld a married couple’s right to use contraceptives, and in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), which held that a woman has a right to choose to have an abortion, the U. S. Supreme Court determined that individuals have an implicit constitutional right to make certain decisions regarding the conduct of their personal lives even though the right is nowhere enumerated in the Constitution. See note, On Privacy: Constitutional Protection for Personal Liberty, 48 N.Y.U.L.Rev. 670, 671.
      Both the United States Supreme Court and the Florida Supreme Court have so far declined determination of whether the right of privacy should be extended to prohibit state statutes prohibiting or regulating extramarital sex. In Carey v. Population Services International, 431 U.S. 678, 688, 97 S.Ct. 2010, 2018, 52 L.Ed.2d 675 (1977), note 5, it is stated:
      “[T]he Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults, . and we do not purport to answer that question now.

      . In the recent case of Purvis v. State, 377 So.2d 674 (Fla.1979), the Florida Supreme Court struck down the Florida fornication statute (Section 798.03, Florida Statutes 1977)), as violative of constitutional guarantees of equal protection of the laws in that under the common law definition of fornication as “illicit sexual intercourse between either a married or an unmarried man and an unmarried woman” an impermissive gender based distinction was drawn between married women, who could not be punished under that statute for illicit sexual activity and married men, who could be. In that case the appellants attacked the fornication statute on the additional ground of unconstitutional violation of rights of privacy, but the court declined consideration of that ground.


author: HURLEY, Judge.

text:
    Peter PUZZO, Appellant, v. Wendell E. RAY, Community Art Alliance, Inc., Arthur Arndt and Rap-Pak Dry Wall & Insulations, Inc., Appellee.
    No. 78-1981.
    District Court of Appeal of Florida, Fourth District.
    July 23, 1980.
    Joel V. Lumer and Howard S. Susskind of Kaplan, Sicking, Hessen, Sugarman, Rosen-thal & Zientz, P. A., Miami, for appellant.
    Robert S. Geiger of Levine, Reekson, Reed & Geiger, P. A., Miami, for appellee.
   HURLEY, Judge.

This case deals with the scope of supplementary proceedings pursuant to Section 56.29, Florida Statutes (1979). At issue is whether a judgment debtor’s right of action for conversion constitutes a “property right” which may be reached by a judgment creditor in proceedings supplementary to execution. We answer in the affirmative.

Briefly stated, the facts are these: sometime before dawn on Sunday, March 7, 1976, appellant Puzzo in concert with three others — apparently operating under the mistaken belief that they had a security interest in the goods — seized certain furniture and goods owned by Community Art Alliance, Inc. (“Alliance”). The goods were taken and stored in Puzzo’s warehouse in Vero Beach. Later that day, one of Puzzo’s cohorts told alliance, “If you want it back, you can pay us the money you owe us.”

The next series of events began on May 28, 1976, when appellee Ray obtained a default final judgment against Alliance for the sum of $11,942.50. Shortly thereafter, Ray’s attorney filed an affidavit of unsatisfied execution. In December of 1976, Ray instituted proceedings supplementary to execution and moved to implead Puzzo and certain other parties. The court granted the motion to implead and the matter came on for trial before the court.

Following the hearing, the trial judge entered, a detailed final order wherein he concluded that: (1) Puzzo’s seizure and retention of Alliance’s property constituted a conversion; (2) The property’s value on the date of conversion was $12,809.25; (3) Alliance’s right of action against Puzzo for conversion constitutes a chose in action; and (4) A chose in action is a “property right” which is subject to adjudication and disposition in proceedings supplementary to execution. The order also provided for the sale of the goods in Puzzo’s warehouse and allowed for the entry of a reduced final judgment in the event that the proceeds of the sale did not satisfy Ray’s judgment.

Puzzo has raised a number of points on appeal, but we limit our discussion to one: the propriety of allowing Ray, the judgment creditor, to reach Alliance’s, the judgment debtor’s, right of action against Puz-zo, the tortfeasor.

Proceedings supplementary to execution are governed by Section 56.29, Florida Statutes (1979). The statute’s provenance was traced by the court in Richard v. McNair, 121 Fla. 733, 164 So. 836, 840 (Fla.1936):

Such proceedings are considered a substitute for a creditor’s bill in chancery, and provide a useful, efficacious, and salutary remedy at law enabling the judgment creditor not only to discover assets which may be subject to his judgment, but to subject them thereto by a speedy and direct proceeding in the same court in which the judgment was recovered. The statute should be given a liberal construction so as to afford to the judgment creditor the most complete relief possible.

Again, referring to predecessor statutes, the court in State ex rel. Phoenix Tax Title Corp. v. Viney, 120 Fla. 657, 163 So. 57, 60 (Fla.1935), indicated that their purpose was:

. to confer on circuit courts the right to subject any and all property, or property rights of any defendant in execution, however, fraudulently conveyed, covered up, or concealed, the same might be, whether in the name or possession of third parties or not, to the satisfaction of an execution outstanding against him. (Emphasis supplied.)

In the case at bar we are particularly concerned with subsection 5 of Section 56.-29, Florida Statutes (1979) which provides that:

The judge may order any property of the judgment debtor, not exempt from execution, in the hands of any person or due to the judgment debtor to be applied toward the satisfaction of the judgment debt. (Emphasis supplied.)

The trial court’s finding that Puzzo converted Appliance’s property is supported by substantial competent evidence. Furthermore, appellant has failed to demonstrate that the trial judge’s assessment of damages is contrary to the manifest weight of the evidence or is clearly erroneous. Thus, we are faced with the narrow issue of whether a judgment debtor’s right to file an action for conversion constitutes a “property right” which may be included within subsection 5’s definition of “. any property of the judgment debtor . [which may be] applied toward the satisfaction of the judgment debt.”

Our research has failed to disclose a Florida case directly on point. The closest decision which we have found, and one which lends support to our conclusion, is General Guaranty, Ins. Co. of Fla. v. DaCosta, 190 So.2d 211 (Fla. 3d DCA 1966). DaCosta held that a judgment debtor’s liability insurer could be impleaded as a defendant in supplementary proceedings and made to either pay the judgment or show cause why the judgment should not be paid. The court reasoned that the term “property” was entitled to a broad, expansive definition and that other areas of the law had long since classified insurance as a type of property or as an asset. Of particular relevance to the case at bar is the court’s observation that:

Even if the rights of Cam Exports, Inc. [the judgment, debtor] in the liability insurance policy are not considered as “property rights,” but only a chose in action, it has been held that supplementary proceedings are ordinarily available to reach “choses in action.” Id. at 213-214.

Black’s Law Dictionary (rev. 4th Ed. 1968) defines a “chose in action” as:

A personal right not„reduced into possession, but recoverable by a suit at law . . A right to receive or recover a debt, demand, or damages on a cause of action ex contractu or for a tort or omission of a duty. (Emphasis supplied.)

In the same vein, 21 C.J.S. Creditors’ Suits § 29 states:

A mere right of action for a personal tort, such as assault and battery, slander, or malicious prosecution, is not property which can be reached by a creditors’ suit. This rule applies to a claim for personal injuries or even to a verdict for personal injuries before judgment has been entered thereon. However, an assignable right of action for a tort occasioning injury to property, or for conversion of property, even though the converted property has been used to pay a creditor of the debtor, may be reached by bill in equity, or under statutory provisions analogous thereto. (Footnotes omitted.)

See also, 21 Am.Jur.2d Creditors’ Bilis § 57.

The California Supreme Court’s decision in Travis Glass Co. v. Ibbetson, 186 Cal. 724, 200 P. 595 (1921), dealt with a supplementary proceedings statute much like our own. Deciding that conversion was a property right subject to adjudication in supplementary proceedings, the court stated:

Since, however, the purpose of these statutory proceedings supplementary to execution is the same as that of the original creditor’s bill in equity — namely, to enable the creditor to reach property which could not otherwise be made to contribute to the payment of the judgment — the statutory proceedings should be given an operation at least as broad as that of the creditor’s bill. Accordingly, inasmuch as claims arising from torts committed on the property of a judgment debtor were within the reach of the judgment creditor under the old equity proceeding, it has been held that such claims may constitute the basis of a suit by a judgment creditor . . . . 200 P. at 596-597.

We find these authorities to be highly persuasive and therefore hold that the trial court was correct in permitting Ray, the judgment creditor, to reach Alliance’s, the judgment debtor’s, right of action against Puzzo, the tortfeasor. Appellant was properly impleaded, Robert B. Ehmann, Inc. v. Bergh, 363 So.2d 613 (Fla. 1st DCA 1978), and afforded due process, Art Advertising Co., Inc. v. Associated Press, 340 So.2d 1291 (Fla. 2d DCA 1977). Inasmuch as he has failed to demonstrate reversible error on appeal, the judgment is

AFFIRMED.

BERANEK and GLICKSTEIN, JJ., concur.


text:
    James W. LEONARD, Appellant, v. STATE of Florida, Appellee.
    No. 79-1158.
    District Court of Appeal of Florida, Second District.
    July 23, 1980.
    Jack O. Johnson, Public Defender, and Douglas A. Lockwood, Asst. Public Defender, Bartow, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

James W. Leonard appeals his conviction and sentence for attempted possession of marijuana. We hold that the trial court erred in allowing the prosecutor to cross-examine appellant as to the nature of his prior criminal convictions; we therefore reverse.

At trial, appellant testified on his own behalf. On direct examination defense counsel asked:

Q Let me ask you this, Jim, have you ever been convicted of a crime?
A Yes.
Q How many times?
A Three times.

Defense counsel asked no further questions concerning appellant’s prior convictions, and there is no contention that appellant’s testimony as to the number of his convictions was anything other than truthful. On cross-examination, however, the prosecutor was allowed over defense objection to inquire into the nature of appellant’s prior convictions. They included a conviction of possession of marijuana, as well as convictions for burglary and night prowling.

The rule in Florida has long been established that a defendant who testifies on his own behalf may be asked on cross-examination whether he has ever been convicted of a crime and, if so, how many times. Unless the defendant answers untruthfully, the prosecution’s inquiry along this line must stop. Fulton v. State, 335 So.2d 280 (Fla.1976); McArthur v. Cook, 99 So.2d 565 (Fla.1957); Mead v. State, 86 So.2d 773 (Fla.1956); Whitehead v. State, 279 So.2d 99 (Fla. 2d DCA 1973).

The trial court ruled that the challenged inquiry was proper because defense counsel had “opened the door” on direct examination. We agree that further inquiry by the prosecutor would have been proper had defense counsel “opened the door” by inquiring into the circumstances or dates of any of the crimes, or by inquiring into the nature of one or two of appellant’s prior convictions, as occurred in Dodson v. State, 356 So.2d 878 (Fla. 3d DCA), cert. denied, 360 So.2d 1248 (Fla.1978). In Dodson the defendant testified and admitted on direct examination that he had been convicted of auto theft twelve years previously. Defense counsel then inquired whether defendant had been convicted of “other crimes” and of “other felonies,” to which defendant responded that he had been. On cross-examination, the prosecutor inquired as to the nature of the “other crimes.” The trial court and the appellate court held the testimony admissible and properly so.

The defense counsel here stayed within the confines of accepted inquiry and made no attempt to mislead the jury, as appears to have been done in Dodson: The mere fact that appellant sought to reduce the damaging effect of his prior convictions by admitting them on direct examination rather than waiting to have them brought out on cross-examination does not authorize the state to inquire further than it would otherwise have been allowed to.

We hold that the trial court committed reversible error in allowing the state over timely objection to exceed the permissible scope of cross-examination. Whitehead v. State, supra.

We find no merit in the remaining points raised by appellant.

Accordingly, the judgment and sentence appealed is REVERSED and the cause REMANDED for new trial.

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


text:
    Sarah E. BROWN, Appellant, v. GLABVO DREDGING CONTRACTORS, a joint venture consisting of Great Lakes Dredge & Dock Company, an Illinois Corporation, Amsterdam Ballast Dredging, a Foreign Corporation, and VO2 Dredging, a Foreign Corporation, Appellees. GLABVO DREDGING CONTRACTORS, a joint venture consisting of Great Lakes Dredge & Dock Company, an Illinois Corporation, Amsterdam Ballast Dredging, a Foreign Corporation, and VO2 Dredging, a Foreign Corporation, Cross-Appellants, v. Sarah E. BROWN, Cross-Appellee.
    No. 79-1497.
    District Court of Appeal of Florida, Second District.
    July 23, 1980.
    Rehearing Denied Sept. 9, 1980.
    Edward F. Gerace, Samuel R. Mandel-baum and Thomas E. Meyers, Tampa, for appellant/cross-appellee.
    Gerald E. Rosser and David F. McIntosh of Corlett, Merritt, Killian & Sikes, P.A., Miami, for appellees/cross-appellants.
   PER CURIAM.

Sarah Brown appeals the entry of summary judgment against her decedent’s claim for contractual death benefits, alleging that the lower court erred in finding that her recovery under the Jones Act precluded other workmen’s compensation benefits. We affirm.

Appellee Glabvo employed appellant’s decedent, Bobie Brown, as a seaman under an employment contract providing “ARTICLE XII — The employer shall furnish workmen’s compensation insurance benefits . . .” Apparently in compliance with this contractual provision, Glabvo procured an insurance policy for the project with Fidelity & Casualty Company of New York, providing for voluntary workmen’s compensation coverage in compliance with laws of the state of Louisiana, and coverage for any liability to maritime crew members. Brown was killed while working off the coast of Saudi Arabia.

Appellant subsequently recovered $204,-000.00 in an action brought under the Jones Act, Death on the High Seas Act, and General Maritime Law of the United States. Appellant then filed this action to obtain payment of workmen’s compensation benefits due under the voluntary compliance with Louisiana law.

The contract requires the employer to furnish workmen’s compensation insurance benefits. Workmen’s compensation is the name commonly used to designate the methods and means created by statute for giving greater protection and security to the workman. United Airlines Transport Corp. v. Industrial Commission, 107 Utah 52, 151 P.2d 591, 594 (1944). That appellee provided insurance benefits to cover claims under workmen’s compensation laws is undisputed. Appellant in fact recovered workmen’s compensation benefits under federal legislation providing for benefits to seamen. No breach of the employment contract is presented by the evidence below.

We note that the prior federal cause of action did not bar a subsequent action based on state compensation law, should any apply. The federal and state action, based on separate legislative enactments, would each be a distinct cause of action. See Cole v. First Development Corp. of America, 339 So.2d 1130 (Fla. 2d DCA 1976). A plaintiff probably could join federal and state compensation actions if he was uncertain which applied. See 32 Am. Jur.2d Federal Employers’ Liability, etc., § 67 (1967). However, those remedies are usually exclusive by their terms; the election depends on whether federal jurisdiction attaches. Florida does not permit workmen’s compensation when recovery is possible under the Jones Act. Section 440.09(2), Florida Statutes (1979). Likewise, Louisiana excludes compensation for crew members in foreign commerce. La.Rev.Stat. Ann. § 23:1037 (West).

Below, appellant has shown no breach of the employment contract by ap-pellee, nor any additional cause of action on which recovery could be made. No justicia-ble issues of material fact remain, and the summary judgment was properly granted.

AFFIRMED.

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


author: GRIMES, Judge.

text:
    Joseph E. WATERS, Appellant, v. Waldon L. SUNDSTROM, Appellee.
    No. 79-1824.
    District Court of Appeal of Florida, Second District.
    July 23, 1980.

      Robert R. Hagaman, of Schryver, Haga-man, Goodlette & Aaron, Chartered, Naples, for appellant.
    Stephen M. Maher, of Carroll, McPeak, Bolesky & Schryver, Naples, and Thomas J. Ellwanger, of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appel-lee.
   GRIMES, Judge.

This appeal involves a dispute between the trustee/beneficiary of a trust agreement and one of the other beneficiaries.

Waldon Sundstrom, Joséph Waters, and others, entered into a trust agreement dated June 24, 1972. The purpose of the trust was to hold and develop a parcel of real estate situated in Collier County. Mr. Sundstrom was the trustee and a beneficiary of the trust and Mr. Waters was a beneficiary. The trust agreement included the following provision:

PART II: DUTIES OF THE BENEFICIARIES
(1) To make all payments due from each such BENEFICIARY (according to his pro-rata interest) to the TRUSTEE, so that there will be full compliance with the terms and provisions of that certain purchase-money mortgage describing the REAL ESTATE, a true copy of which is attached as Schedule C.
(2) Should any BENEFICIARY fail to comply with his obligations under this AGREEMENT, then and in such an event, one or more of the other BENEFICIARIES shall have the right to advance the amount due from such defaulting BENEFICIARY. For any sum só advanced, the one(s) so advancing the same shall have a lien on the undivided interest of the defaulting BENEFICIARY, together with interest at the rate of 10% per annum until paid. In the event that such default shall continue for six months, then the interest of such defaulting BENEFICIARY shall be considered as offered for sale to the other BENEFICIARIES according to the procedure hereinabove set forth for the sale of any BENEFICIARY’S beneficial or equitable interest.

In 1978, Mr. Sundstrom, acting as both trustee and beneficiary, filed a complaint against Mr. Waters seeking to establish and foreclose a lien on Mr. Waters’ interest in the trust under the provisions of the trust agreement set out above. He alleged that Mr. Waters was in default for failure to make certain payments that were required by the trust agreement. He further alleged that he personally had advanced the sums necessary to make up Waters’ default. After trial, the court entered a final judgment in which it found that Mr. Waters had paid $38,650.13 into the trust but that he owed the trust another $25,320.93 for proper trust expenses. The court ordered

that the Lien of the Plaintiff, WALDON L. SUNDSTROM, as Beneficiary in the sum of $25,320.93 shall be foreclosed, the beneficial interest shall be sold on the interest of JOSEPH E. WATERS in the amount of $38,650.13 and the Defendant, JOSEPH E. WATERS, shall have the sum of $13,329.20, paid to him by the Trust, as the remaining portion of his beneficial interest, within ten (10) days from the signing of this order.

A reading of the trial transcript makes it clear that the court based its findings upon testimony to the effect that Mr. Waters had a forty percent interest in the trust and that forty percent of the proper expenses of the trust equaled $63,971.06.

On appeal, Mr. Waters contends that the court erred in finding that the terms of the trust agreement required foreclosure of his interest in the trust. He argues that the agreement calls only for him to make such payments as are necessary to satisfy the terms of the purchase money mortgage on the property in trust and that the $38,-650.13 which he paid into the trust covered his share of payments on the mortgage. We agree with Mr. Waters' position. The undisputed evidence demonstrates that the $38,650.13 more than adequately covered a forty percent share of the cost of purchasing the land. Because the agreement plainly states that a beneficiary is entitled to a lien only when there is a default under the agreement and since the agreement only requires a beneficiary to make such payments as are needed to satisfy the purchase money mortgage, it is clear that Mr. Sundstrom was not entitled to a lien under the terms of the. agreement.

In reaching this conclusion, we must reject two arguments of Mr. Sundstrom whereby he would expand a beneficiary’s duties under the trust agreement. The first argument is that the agreement must be read to contain the terms of an earlier subscription agreement entered into by the parties which called for the beneficiaries to pay all expenses of the trust. Thus, Sund-strom contends, Waters’ failure to answer a call to pay trust expenses as required in the subscription agreement activated the lien provisions of the trust agreement. This argument is without merit. The trust agreement includes a clause which reads, “This Trust Agreement represents the entire agreement among the parties hereto, and all prior written memoranda and all prior oral conversations are merged herein.” This clause extinguished the earlier subscription agreement because a merger of an earlier contract into a later one extinguishes the earlier one. See, e. g., National Cash Register Co. v. Modern Transfer Co., 224 Pa.Super. 138, 302 A.2d 486 (1973); 5 W. Jaeger, Williston on Contracts § 811 (3d ed. 1961).

Mr. Sundstrom’s second argument is that the duty of the beneficiaries to pay expenses of the trust can be found in the term of the trust agreement which gives the trustee the duty and authority “[t]o pay all proper expenses of the Trust, including but not limited to, premiums for insurance and real estate taxes.” While the failure of a beneficiary to contribute his proportionate share of trust expenses may give rise to a claim by the trustee against the beneficiary’s interest in the trust, it does not follow that this would constitute a breach of the trust agreement. Accordingly, it simply cannot be said that Mr. Waters violated the trust agreement so as to authorize the foreclosure of his beneficial interest in the trust under the terms thereof.

In reversing the judgment of the trial court, we do not hold that Mr. Waters has no responsibility to share in the trust expenses, but only that his interest may not be foreclosed on the basis that he failed to comply with his obligations under the agreement. Obviously, the trust did and will continue to have expenses, and Mr. Waters may be legally obligated to provide his share of these expenses. However, since the parties have neither briefed nor discussed any of the issues surrounding Mr. Waters’ responsibility outside the terms of the agreement, we will not here consider the matter further but will remand the case to the trial court for further proceedings. At that time, the court may wish to take testimony and hear argument on issues relating to the intent of the parties when they reached the agreement and any duties which the law imposes upon the beneficiaries of such agreements.

REVERSED and REMANDED.

SCHEB, C. J., and DANAHY, J., concur.

      . While the parties make no issue of it, it is actually incorrect to say that Mr. Waters owns a forty percent share of the trust. The trust agreement discloses that he owns only 13.33333% of the trust individually. His wife owns a 6.66667% share and he and his wife together own three 6.66667% shares as co-trustees for their three children. We expect that on remand the court will take steps to protect the interests of Mr. Waters’ wife and children who have not been made parties to this action.

      . In reaching this result, we are not suggesting that the expenses incurred by Mr. Sundstrom as trustee were not appropriate trust expenses. There was sufficient evidence to support the court’s findings that these expenses were proper. Likewise, we affirm the dismissal of Mr. Waters’ counterclaim for an accounting.


text:
    Peter G. CINQUEPALMA and Frances D. Cinquepalma, his wife, Appellants/Cross Appellees, v. BREVARD COUNTY BOARD OF COMMISSIONERS and Hartford Accident & Indemnity Company, a foreign corporation, jointly and severally, Appellees/Cross Appellants.
    No. 78-1541/T4-155.
    District Court of Appeal of Florida, Fifth District.
    July 23, 1980.
    James A. Sisserson of Nance, Cacciatore & Sisserson, Melbourne, for appellants/cross appellees.
    Michael P. Falkowski, III, of Parker, Fal-kowski, Johnson & Owen, P.A., Orlando, for appellees/cross appellants.
   PER CURIAM.

Summary Final Judgment is reversed on the authority of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), and remanded for further proceeding. The cross appeal is affirmed.

CROSS, ORFINGER and SHARP, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Edwin J. FEX, Appellant, v. STATE of Florida, Appellee.
    No. 79-1174.
    District Court of Appeal of Florida, Second District.
    July 25, 1980.
    Jack 0. Johnson, Public Defender, and Michael S. Becker, Asst. Public Defender, and Geoffrey A. Foster, Legal Intern, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty., Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

The appellant contends his confession was involuntary and, therefore, the court erred in permitting the interrogating officer’s testimony concerning it. We agree and reverse.

This court has held that a confession obtained by any direct or implied promise is inadmissible. Bram v. U. S., 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897); Fillinger v. State, 349 So.2d 714 (Fla.2d DCA 1977). The State has the burden of showing the voluntariness of a confession. State v. Chorpenning, 294 So.2d 54 (Fla.2d DCA 1974). In the instant case, the arresting officer testified that he took the appellant to the police station and read his Miranda rights to him. The' officer then told the appellant that he already knew the answers to the questions he was going to ask and if the appellant was cooperative and told the truth he would try to keep the bond as low as possible.

In Fillinger, supra, the interrogating officer told the appellant that he had enough information to go to the state attorney and procure a warrant for her arrest. In addition, he stated that he would advise the state attorney whether she cooperated and would consider her cooperation in establishing the amount of bond. This court held that the circumstances indicated the confession was induced by promises of leniency and thus was not voluntary. Applying this rule to the instant case, the appellant’s confession should have been excluded.

A less stringent standard arguably was announced in United States v. Ferrara, 377 F.2d 16 (2d Cir. 1967). The court of appeals held that the statement of a federal narcotic’s agent to the defendant that he felt sure the defendant would get out on reduced bail did not render the confession involuntary. The court did not reject the test applied by this court; however, it stated a promise of reduced bail was not dispositive. Instead, all of the circumstances were examined to determine if the officer’s conduct In overbore the defendant’s will to confess. Ferrara, the court’s conclusion that the confession was voluntary was influenced by the fact that the defendant had two prior convictions and, therefore, was familiar with his right to counsel and right to remain silent. Moreover, he was not subjected to protracted interrogation or threatened. See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); United States v. Reynolds, 532 F.2d 1150 (7th Cir. 1976); United States v. Frazier, 434 F.2d 994 (5th Cir. 1970).

In the instant case, the appellant was eighteen years old at the time of the interrogation and had never been arrested. The officer stated he had known the appellant since he was ten. In addition to promising reduced bail, the officer told appellant he had already been identified and that he (the officer) knew the answers to the questions. While these statements may not rise to the level of threat, they certainly were intended to “overbear” the appellant’s will. These additional circumstances distinguish the instant case from Ferrara. Therefore, even applying the less stringent “totality of the circumstances test,” the appellant’s confession was involuntary.

The appellant also contends on appeal that the trial court violated his right to testify and right to counsel by forcing him to choose between not testifying or continuing the trial without counsel. The trial court informed the appellant that no member of the Florida Bar could represent him if he chose to testify. Appellant then agreed not to testify. The appellant’s first argument concerning the voluntariness of his confession is dispositive. Therefore, while we are disturbed that the trial court forced the appellant to choose between not testifying or continuing the trial without counsel, we do not reach that question.

REVERSED and REMANDED.

RYDER and DANAHY, JJ., concur.


author: RYDER, Judge.

text:
    Chester Peter ANDERSON, Jr., Appellant, v. Jennifer Lynn ANDERSON, Appellee.
    No. 79-2165.
    District Court of Appeal of Florida, Second District.
    July 25, 1980.
    John W. Boult, Tampa, for appellant. William S. Lancaster, Tampa, for appel-lee.
   RYDER, Judge.

Chester Peter Anderson appeals the final judgment of dissolution awarding Jennifer Lynn Anderson custody of two minor children, alleging the court abused its discretion in determining custody. We agree, reverse and direct the trial court to enter an order awarding permanent custody of the children to appellant.

In July of 1978, appellant, who had custody of the minor children after the wife’s departure from the marital home, petitioned for dissolution requesting temporary and permanent child custody. In September, appellee merely denied grounds for dissolution. A month later, however, she filed a motion requesting temporary custody which was denied by the trial judge. After hearing, to assist it on the question of permanent custody, the court ordered an investigation and report of the parties by the office of the court counselor.

Appellant subsequently filed a stipulation agreement executed by both parties on April 29, 1979 wherein the parties agreed that permanent custody of the children would be with appellant husband. A general master adopted the stipulation without controversy after hearing on the dissolution.

The court counselor assigned by the judge made several lengthy and most detailed reports regarding the living arrangements and stability of each party. In each report, the counselor recommended that custody remain with appellant, noted the relative instability of the appellee’s current situation, questioned the wife’s maturity and found that the children received excellent care with appellant. The counselor also noted the adultery of appellant without finding it significant. The reports were stipulated into evidence pursuant to Section 61.20, Florida Statutes (1977).

After hearing testimony of the parties, wherein evidence was adduced that appellant had by then remarried, the court awarded permanent custody to appellee, finding the children’s best interests were served thereby because the father had carried on an adulterous affair after the parties’ separation.

We are aware that absent abuse of discretion, the decision of a trial judge in a child custody case will not be disturbed. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). The welfare of the child is of prime consideration, but adultery is not of itself determinative of the custody issue. Id. In Dinkel, the court noted that the scales may tip against the adulterer if the adultery has a negative effect on the child. Below, we are unable to find any evidence to substantiate the court’s finding that appellant’s adultery had any adverse effect on the children of ages twenty months and three months. We hold that in view of the overwhelming evidence supporting custody by appellant, and in view of the recommendations of the general master and court counselor, the trial judge abused his discretion in awarding custody to the mother. See Solly v. Solly, 384 So.2d 208 (Fla. 3d DCA 1980); Farrow v. Farrow, 263 So.2d 588 (Fla. 2d DCA 1972).

REVERSED and REMANDED with instructions to the trial court to enter an order awarding custody of the children to appellant.

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


author: CAMPBELL, Judge.

text:
    Ken GURITZ, d/b/a Electrodex, Inc., Appellant, v. AMERICAN MOTIVATE, INC., an Illinois Corporation, Appellee.
    No. 80-942.
    District Court of Appeal of Florida, Second District.
    July 25, 1980.

      Richard H. Bailey of Harrison, Harllee, Porges & Bailey, Bradenton, for appellant.
    Thomas M. Gallen of Miller, Gallen, Kak-lis & Venable, Bradenton, for appellee.
   CAMPBELL, Judge.

Electrodex appeals from an order granting American Motivate’s motion to abate for lack of jurisdiction. We reverse.

Electrodex filed a two-count complaint in the lower court, one count being an action on an open account and the other being an action on goods sold and delivered. Elec-trodex’s complaint alleges in part:

3.Defendant, American, is an Illinois corporation with its principal place of business in West Chicago, Illinois.
5. The basis of the sum owed from the defendant to the complainant, is a sale of goods as contemplated by Chapter 671 and Chapter 672, Florida Statutes, which statutes provide that remedy shall be liberally administered and the aggrieved party may be put in as good position as if the other party had fully performed pursuant to Section 671.102, Florida Statutes.
8. Defendant, American, has done acts enumerated in Section 48.193, Florida Statutes, which submit the defendant, American, to the jurisdiction of the courts of this state for a cause of action arising from the doing of said acts, which acts are more particularly described as follows:
(a) engages in business in this state;
(b) breaches a contract in this state by failing to perform acts required by the contract to be performed in this state, and more particularly failing to make payment for the goods sold and delivered by the plaintiff to the defendant in Bradenton, Manatee County, Florida.
9. Both the making and performance of the contract in question to sell and buy goods occurred in Manatee County, Florida.
10. The place for delivery of the goods sold by the plaintiff, Electrodex, to the defendant, American, was the seller’s place of business, to wit: 6211 17th Street East, Manatee County, Florida.

American Motivate responded with an unsupported special appearance considered by the trial court to be a motion to abate for lack of jurisdiction over the person.

Two issues are raised by this appeal: 1) whether Electrodex in its complaint pled facts which clearly justify as a matter of law the application of the long arm statute, and 2) whether American Motivate’s unsupported motion was sufficient to shift the burden to Electrodex to prove the allegations in the complaint which justify the application of the long arm statute.

We find that the allegations contained in Electrodex’s complaint are sufficient. Section 48.193(l)(g), Florida Statutes provides that any person who personally or through an agent “[breaches a contract in this state by failing to perform acts required by the contract to be performed in this state” submits himself to the jurisdiction of the courts of this state.

Paragraph 8(b) of the complaint sufficiently alleges that American Motivate breached a contract in this state. Cf. Maddax International Corporation v. Belcher Intercontinental Moving Services, Inc., 342 So.2d 1082 (Fla. 2d DCA 1977). (Appellee alleged in its complaint that the parties entered into a contract which had been breached by the appellant’s failure to perform acts required by the contract to be performed in this state, to wit: the payment for the services required by the appel-lee. This court held that where an express promise to pay exists and no place of payment is stipulated, payment is due at the location of the creditor and that is where the breach occurs.)

We also find American Motivate’s unsupported motion insufficient to transfer the burden to Electrodex to prove the jurisdictional allegations in the complaint.

The court in Elmex Corporation v. Atlantic Federal Savings & Loan Association of Fort Lauderdale, 325 So.2d 58 (Fla. 4th DCA 1976), discussed the plaintiff’s burden in invoking and the defendant’s burden in challenging the application of Section 48.-193(l)(g), Florida Statutes. The court stated “[i]t may be unnecessary for the defendant to do anything more than file a simple (unsupported) motion where the allegations of the complaint are legally insufficient.” (Emphasis added.) Id. at 61-62. The court further stated that in order for a defendant to assert factual matters not appearing on the face of the record he must support the motion with an affidavit, deposition or other proof; if this supported motion contradicts the complaint, the issue becomes one of proof, and the burden shifts to the plaintiff to prove the allegations in the complaint which justify application of the long arm statute.

In the instant case, American Motivate filed an unsupported motion challenging jurisdiction over the person. Based on Elmex, supra, this unsupported motion would be sufficient if the allegations in the complaint were legally insufficient. Since this is not the case, the trial court erred by granting the defendant’s unsupported motion to abate.

Based on the foregoing reasoning, we vacate the order of the trial court and remand for further consistent proceedings.

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


text:
    Len Charlton SCOTT a/k/a Len C. Scott, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1356.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.
    Len C. Scott, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.130(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    George Thomas BAILEY, III, Appellant, v. Mabel Moon BAILEY, Appellee.
    No. 79-2349.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.
    Greene & Cooper and Sharon L. Wolfe, Robrish, Major & Logan, Miami, for appellant.
    Proby & Adkins and Milton R. Adkins and H. Lawrence Hardy, Coral Gables, for appellee.
    Before HUBBART, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Schottenstein v. Schottenstein, 384 So.2d 933 (Fla. 3d DCA 1980).


text:
    AMERIFIRST FEDERAL SAVINGS AND LOAN ASSOCIATION and Aetna Casualty and Surety Company, Appellants, v. Lizzie JAMES, Appellee.
    No. 79-2133.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellants.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Hawkesworth & Schmick, Miami, for appellee.
    Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Maas Bros., Inc. v. Bishop, 204 So.2d 16 (Fla.2d DCA 1967); see also Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168, 169 (Fla.3d DCA 1977).


text:
    Francisco DOMINGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-635.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.

      Mitchell Denker, Key West, Franklin, En-tin, Kimler & Marks, North Miami Beach, for appellant.
    Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Petitioner, Francisco Dominguez, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this Court having considered the record presented and the briefs on appeal, we determine (1) that it conclusively appears that petitioner is entitled to no relief; (2) that the issue raised on the petitioner’s Rule 3.850 motion was decided adversely to him on direct appeal, Dominguez v. State, 374 So.2d 1016 (Fla. 3d DCA 1979), and may not be reconsidered. Thomas v. State, 383 So.2d 261 (Fla. 3d DCA 1980).

Affirmed.


text:
    Caroline MAJEWSKI, Appellant, v. SEA DECK PROPERTIES, INC., d/b/a Sea Deck Hotel, Appellee.
    No. 79-2426.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.
    Herskowitz & Grossman and Michael S. Grossman, Miami, for appellant.
    Walsh, Theissen & Boyd and Mark R. Boyd, Ft. Lauderdale, for appellee.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order dismissing the plaintiff’s complaint with prejudice is reversed on the authority of Sanchez v. Mercy Hospital, 386 So.2d 42 (Fla. 3d DCA 1980) and Hall v. Universal Dry Wall, Inc., 358 So.2d 1170 (Fla. 3d DCA 1978). .

Reversed and remanded.