author: NESBITT, Judge.

text:
    Thelma GREEN, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, SOCIAL AND ECONOMIC SERVICES PROGRAM, Appellee.
    No. 80-2221.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.

      William N. Hutchinson, Jr., Fort Lauder-dale, for appellant.
    Elizabeth Auguste-Gilmore, Miami, for appellee.
    Before HENDRY, NESBITT and JOR-GENSON, JJ.
   NESBITT, Judge.

This is an appeal from an order dismissing with prejudice an amended petition for adoption.

The petition was brought by the natural mother’s uncle and aunt, who were looked upon as grandparents of the child they sought to adopt. The child had spent the first ten months of her life in the custody of these “grandparents,” to whom written consent to adopt had been given by the natural mother. While the child was in such custody, the Department of Health and Rehabilitative Services (HRS) instituted against the natural mother a petition for. permanent commitment of the child. The “grandparents” were aware of and attended those proceedings. Ultimately, the petition for commitment was granted. As a consequence, the natural mother was permanently deprived of her rights to the child. § 39.41(4), Fla.Stat. (1979); In the Interest of C. M. M., 364 So.2d 788 (Fla. 1st DCA 1978); Thompson v. Department of Health and Rehabilitative Services, 353 So.2d 197 (Fla. 3d DCA 1977). The permanent order of commitment was not appealed.

The termination order was appended to HRS’ motion to dismiss the amended petition for adoption. The trial court granted the motion to dismiss, with prejudice, ostensibly on the basis of either res judicata or estoppel by judgment.

HRS concedes, as it must, that a permanent commitment proceeding pursuant to Section 39.41, supra, constitutes a different cause of action than does an adoption proceeding under Chapter 63, Florida Statutes (1979). Therefore, the doctrine of res judicata is not applicable to the present case. Virginia-Carolina Chemical Co. v. Fisher, 58 Fla. 377, 386, 50 So. 504, 507 (1909); Burleigh House Condominium, Inc. v. Buchwald, 368 So.2d 1316, 1321 (Fla. 3d DCA), cert. denied, 379 So.2d 203 (Fla.1979).

In contrast, identity of the causes of action is not a necessary element of estop-pel by judgment. Burleigh House Condominium, Inc. v. Buchwald, supra; Wacaster v. Wacaster, 220 So.2d 914 (Fla. 4th DCA 1969). The operation and effect of this doctrine is aptly described in Volume 32, Florida Jur 2d, Judgments and Decrees, Section 116:

Where the causes of action are different, the doctrine of estoppel by judgment comes into play, in which case the parties are precluded from relitigating matters actually litigated and determined, but only those matters, and not matters which were in fact not litigated in the former action, even though such matters might properly have been determined therein. Thus, before a litigant is barred under the doctrine of estoppel by judgment, it must appear that the points or questions involved in the subsequent action were determined in the prior action.

It is established law that the termination of the natural parents’ rights by commitment proceedings does not foreclose their right to seek adoption pursuant to Chapter 63, supra. In the Interest of C. M. M., supra; Thompson v. Department of Health and Rehabilitative Services, supra. Nonetheless, HRS argues that affirmance is required under the principle of estoppel by judgment because the issues involved in termination and adoption proceedings are virtually the same, and because the “grandparents” were in privity with the natural mother due to the written consent of adoption. We disagree.

Proceedings for permanent commitment, pursuant to Section 39.41(4), supra, are concerned with termination of parental rights. Chapter 63, supra, is concerned with the conferral of parental rights. Under Section 39;41(l)(d) l.a(I), Florida Statutes (1979), the substantive grounds for termination of parental rights are: (a) abandonment; (b) abuse; or (c) neglect. See State v. M. T. S., 408 So.2d 662 (Fla. 3d DCA 1982). The foregoing are a reflection of parental unfitness and unsuitability. Pragmatically, they are simply the inversion of the suitability and fitness necessary to warrant conferral of parental rights in an adoption proceeding under Chapter 63, supra.

However, any adoption proceeding brought by a natural parent pursuant to Chapter 63, supra, will necessarily occur in point of time after the termination of parental rights accomplished pursuant to Section 39.41, supra. If adoption is to be granted, it must be demonstrated that, no matter what derelictions originally caused the loss of parental rights, there has been a rehabilitation to the point where parental suitability and fitness have reached a level sufficient to warrant adoption.

Stated another way, a decree granting permanent custody to HRS is a determination of matters pertaining to custody only as they existed prior to the date of such decree. Moore v. Lee, 72 So.2d 280, 283 (Fla.1954). It follows that when the circumstances supporting the order of commitment are no longer present at the time an adoption petition is filed, estoppel by judgment may not be invoked to prevent litigation of the adoption issues.

Our determination that the doctrine of estoppel by judgment cannot be successfully raised against the natural mother obviates any discussion as to whether the “grandparents” were in privity with her.

The order appealed from is reversed and remanded for further proceedings.

      . We go directly to the merits of the controversy rather than discussing the procedural impropriety of granting the respondent’s motion to dismiss based upon the affirmative defenses of res judicata and estoppel by judgment, which are properly raised by responsive pleading. Fla.R.Civ.Pro. 1.110(d). A motion to dismiss, pursuant .to Rule 1.140 properly asserts only those affirmative defenses then appearing on the face of the pleadings. Fla.R.Civ.Pro. 1.110(d).


source: Caselaw Access Project

author: HENDRY, Judge.

license: Public Domain

text:
    David C. QUIRING and Pamela L. Quiring, his wife, Appellants, v. Don E. PLACKARD and Betty Plackard, his wife, Appellees.
    No. 81-464.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.

      A. M. Schwitalla, Coral Gables, John M. Goodman, Miami, for appellants.
    Robert S. Appleton, Marathon, for appel-lees.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   HENDRY, Judge.

Appellants, David and Pamela Quiring, appeal from a final judgment of the trial court accelerating a mortgage and note owed to plaintiffs/appellees, the Plackards.

The dispute herein evolved from the Quirings’ purchase of a bowling alley from the Plackards for $258,000. The Plackards took back a purchase money mortgage and note in the amount of $100,000 which provided, inter alia, for acceleration of the full amount outstanding in the event of default, and a discount of $28,000 in the event the mortgage was paid in full on or before November 1, 1981. Monthly payments by the Quirings were consistently late and the Plackards gave notice that future payments made after the thirty day grace period would no longer be accepted. The Quirings’ June, 1980 payment was late and the Plack-ards returned the check, informing them that they were in default. Two days after a foreclosure suit was filed, the Quirings tendered a cashier’s check in the amount of $69,420.47, which represented the full unpaid principal of the mortgage plus interest, costs, and miscellaneous charges, less the $28,000 discount. The Plackards refused to accept the check, and following a non-jury trial, the court enforced the acceleration clause in the mortgage and rendered judgment in favor of the Plackards for the full amount due, reserving the issue of costs and attorneys’ fees for a subsequent hearing.

The Quirings have presented several issues for our consideration, which we have consolidated into three main points: (1) the court erred in ruling that the acceleration clause in the mortgage prevailed over the discount clause, (2) the court erred in excluding testimony regarding the circumstances of the execution of the original sales contract between the parties, and (3) the court improperly reserved jurisdiction to award attorneys’ fees when no evidence to support such fees had been presented at trial. We find no error in the proceedings below and affirm.

Despite their default, the Quirings argue that they are still entitled to discount the amount owed by $28,000, since the mortgage was accelerated prior to November 1, 1981, the cutoff date for the discount. They also contend that evidence of the parties’ intent should have been admissible to resolve an apparent conflict between the two provisions in the mortgage. Paragraphs two and eleven, the discount clause and the acceleration clause, respectively, provide in relevant part:

2) In the event the mortgage is paid in advance in full, on or before November 1, 1981, this Third Mortgage may be discounted by $28,000.00 from the then principal balance.
* * * * * *
11) If any of said sums of money herein referred to be not promptly and fully paid within thirty (30) days next after the same severally become due and payable, ... the said aggregate sum mentioned in said promissory note shall become due and payable forthwith or thereafter at the option of the Mortgagees, ... as fully and completely as if the said aggregate sum of ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) were originally stipulated to be paid on such day, anything in said promissory note or herein to the contrary notwithstanding, (emphasis supplied)

We conclude that extrinsic evidence regarding negotiations prior to execution of the mortgage was correctly excluded from this ease. All prior negotiations between the parties merged into the final written evidence of their agreement, Carlon, Inc. v. Southland Diversified Co., 381 So.2d 291 (Fla. 4th DCA 1980); Financial Federal Savings and Loan Ass’n of Dade County v. Continental Enterprises, Inc., 338 So.2d 907 (Fla. 3d DCA 1976); Window-master Corp. v. Jefferson Construction Co., 114 So.2d 626 (Fla. 3d DCA 1959), and parol evidence could not be introduced to vary the terms of the written instrument unless an ambiguity existed. Schwartz v. Zaconick, 68 So.2d 173 (Fla.1953); First Guaranty Corp. v. Palmer Bank and Trust Co. of Fort Myers, 405 So.2d 186 (Fla. 2d DCA 1981); Atkins v. Bianchi, 162 So.2d 694 (Fla. 1st DCA 1964); cf. Bleemer v. Keenan Motors, Inc., 367 So.2d 1036 (Fla. 3d DCA 1979) (parol evidence rule does not apply where legal existence or binding force of instrument is in question).

Paragraph eleven of the mortgage, which specifically provides that the acceleration clause controls “anything in said promissory note or herein to the contrary notwithstanding,” resolves any conflict between the two provisions and manifests the predominance of the acceleration clause over the discount clause. Accordingly, use of parol evidence to explain or vary the terms of the mortgage was prohibited, see Grier v. M.H.C. Realty Corp., 274 So.2d 21 (Fla. 4th DCA 1973), and the Plackards’ contractual right to accelerate the full balance of the mortgage was properly enforced. Scarfo v. Peever, 405 So.2d 1064 (Fla. 5th DCA 1981).

We also find no error with respect to the trial court’s reservation of jurisdiction to award attorneys’ fees at a later time. Although the mortgage provided for payment of attorneys’ fees by the Quirings upon their failure to comply with the terms of the instrument, this provision did not become effective until their default was fully determined. This issue was, therefore, properly delayed pending outcome of the litigation.

Affirmed.


author: PER CURIAM.

text:
    Allan Marciel DOXON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1059.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and John F. Ro-benalt and Alan T. Lipson, Asst. Attys. Gen., for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

With respect to Count II, the sentence imposed for unlawful possession of a firearm while in commission of a felony is vacated. State v. Monroe, 406 So.2d 1115 (Fla.1981).

The judgment is, in all other respects, affirmed.


text:
    INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, Appellant, v. Irvana AUGUSTIN, Appellee.
    Nos. 81-1115, 81-1438.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.
    Goodhart & Rosner, Jeanne Heyward, Miami, for appellant.
    George T. Ramani, Miami, for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Irvana Augustin was injured while riding as a passenger in an automobile owned by one Laure and which was insured by Industrial Fire & Casualty Insurance Company.

Being the owner of an uninsured motor vehicle at the time of the accident, Augus-tin has no right to recover PIP benefits from Industrial. Protective National Insurance Company of Omaha v. Bergouignan, 335 So.2d 871 (Fla. 3d DCA 1976); Staley v. Florida Farm Bureau Mutual Insurance Company, 328 So.2d 241 (Fla. 1st DCA 1976); Section 627.736(4)(d)(4), Florida Statutes (1979).

Therefore, the final summary judgment rendered in favor of Augustin is reversed, as well as the order awarding attorney’s fees, with directions to the trial judge to enter a final summary judgment in favor of Industrial.

Reversed and remanded, with directions.


text:
    Ruth GREEN, Appellant, v. Stanley Jay BARTEL; Noriega and Bartel, P. A., a Florida professional association and Noriega, Bartel, Chopp, Schatz, Levine and Shuford, P. A., a Florida professional association, Appellees.
    No. 81-2024.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.

      Ellis Rubin and Bernard Young, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Cappucio, Miami, for appellees.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Watson v. Peskoe, 407 So.2d 954 (Fla.3d DCA 1981); Warriner v. Ferraro, 177 So.2d 723 (Fla.3d DCA 1965), cert. denied, 188 So.2d 319 (Fla.1966), cert. denied, 385 U.S. 995, 87 S.Ct. 610, 17 L.Ed.2d 454 (1966).


text:
    SUNSHINE TERMINAL SERVICES, INC., Appellant, v. NATIONAL LIFE INSURANCE COMPANY, d/b/a M.I.D.C., Appellee.
    No. 81-2038.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.
    Stone, Sostchin & Gonzalez and Henry Leyte-Vidal, Miami, for appellant.
    Shutts & Bowen and William J. Gallwey, III and Angel Castillo, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Some four-and-one-half months after a final judgment was entered on a default, the defendant moved to vacate the final judgment. The trial court denied the motion; this appeal ensued.

We find no abuse of discretion in the denial of the motion. It came four-and-one-half months after the final judgment was entered, of which the judgment debtor received notice. This is clearly indicated in the record when counsel for the defendant admitted the amount was due and attempted to defer its payment some six weeks after the judgment was entered, but did not attempt to move to vacate it until some three months later when a return to a writ of execution was made. At no time has a meritorious defense been revealed to the trial court.

Therefore, finding no error we affirm. Cricket Club, Inc. v. Basso, 384 So.2d 908 (Fla. 3d DCA 1980); Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978); Govoni v. Blackwell, 167 So.2d 616 (Fla. 3d DCA 1964).

Affirmed.


text:
    Anthony CASH, Appellant, v. The STATE of Florida, Appellee.
    Nos. 81-2664 to 81-2667.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.
    Gerald D. Hubbart, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

When a petitioner alleges ineffective assistance of counsel, unless the motion and the files and records in the case conclusively show that he is not entitled to relief, the petitioner is entitled to an evidentiary hearing on his Rule 3.850 motion. Meeks v. State, 382 So.2d 673 (Fla.1980); see Brown v. State, 404 So.2d 157 (Fla. 5th DCA 1981); Fla.R.Crim.P. 3.850.

Reversed and remanded for evidentiary, hearing.


text:
    Orlando HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-420.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.
    Orlando Hernandez, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(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.

Affirmed.


author: BERANEK, Judge. ANSTEAD, Judge, RIVKIND, LEONARD,

text:
    James Frederick BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 79-459.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.

      Robert L. Saylor of Saylor, Ingalsbe & Cohen, North Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal from a conviction for possession of marijuana in excess of five grams in violation of Section 893.13(l)(e), Florida Statutes (1977). The appellant was charged with possession of marijuana in excess of five grams, possession of hashish, and possession of PCP. The jury acquitted the appellant of the latter two charges.

The appellant raises numerous points on appeal, only one of which merits discussion; that is, the sufficiency of the evidence as to constructive possession.

During the evening hours of April 26, 1978, law enforcement officers executed a search warrant at a residence owned by the appellant. The residence had been under surveillance for approximately one year. During that period of time, the appellant had been observed entering and leaving the house on a number of occasions. When the warrant was served, the appellant opened the door and was seated by the officers in the living room. There were two persons living in the house with the appellant, and they were present when the warrant was executed. Marijuana was found in the following places: (a) five grams in an ash tray on the coffee table in the living room, (b) 54 grams in a plastic cup in the door panel inside the refrigerator, (c) 826 grams in a locked beer dispenser in the kitchen, (d) some amount in a coffee cup in the cabinet above the beer dispenser, (e) several bags of seeds in the garage, (f) a container of seeds in the kitchen cabinet, and (g) a bottle of seeds on the bar in the family room. A search also disclosed the following narcotic paraphernalia: (a) a glass mirror, (b) a strainer, (c) a razor, (d) plastic bags and cigarette papers on the kitchen counter, (e) surgical clips on the coffee table in the living room, (f) pipes and containers in the garage, (g) spoons, papers, mirrors, and plastic funnels in the bar in the family room, (h) a bottle of manitol (a cutting agent) in the garage, (i) six pipes, hashish, and 150 milligrams of PCP on the bar shelves in the family room, (j) hashish in a car belonging to one of the residents parked outside the home, and (k) other drugs found in one resident’s bedroom. At issue is whether the State presented a prima facie case of constructive possession based on these facts.

In order to convict an accused of constructive possession, the State must prove that he had dominion and control over the contraband, had knowledge that the contraband was within his presence, and had knowledge of the illicit nature of the contraband. Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981); Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976). If the area in which a contraband substance is found is within the exclusive possession of the accused, his knowledge of its presence, and his ability to maintain control over it, may be inferred. If the area is only in his joint possession, his knowledge of the presence of the contraband on the premises and his ability to maintain control over it will not be inferred but must be established by other proof. This proof may consist of circumstantial evidence from which a jury might properly infer that the accused had knowledge of the presence of the contraband and an ability to control it. Wale v. State, supra.

We believe that the facts brought out at trial were sufficient to create a jury question as to the appellant’s constructive possession of the marijuana. This is not a situation where three people shared an apartment as co-tenants or roommates with equal rights in that apartment. Here the appellant owned and lived in the house and had superior possessory rights. He received mail there, paid the household bills, and was residing there immediately prior to the events in question. The marijuana and narcotic paraphernalia were in plain view. Given that the appellant lived in his own home literally in the midst of all the seized drugs and paraphernalia, a jury could reasonably infer, as it did in this case, that the appellant had dominion and control over the premises and its contents. See United States v. Davis, 562 F.2d 681 (D.C.Cir.1977); United States v. Herron, 567 F.2d 510 (D.C.Cir.1977).

Notwithstanding our conclusion that the evidence was sufficient to sustain appellant’s conviction we recognize that the case law in this area is far from clear. This issue is further addressed in Judge Rivkind’s dissent and Judge Anstead’s special concurrence. Because this has been a recurrent problem which has proven troublesome to trial courts and appellate courts alike we hereby certify the following questions to the Supreme Court as being of great public importance:

1. DOES OWNERSHIP AND JOINT OCCUPANCY OF A PREMISES WHERE ILLEGAL DRUGS ARE DISCOVERED IN PLAIN VIEW, IN THE PRESENCE OF THE OWNER, CONSTITUTE SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR CONSTRUCTIVE POSSESSION AS TO THE OWNER OR AS TO A LESSEE UNDER THE SAME CIRCUMSTANCES?
2. WHERE TWO OR MORE PERSONS JOINTLY OCCUPY PREMISES AND ILLEGAL DRUGS ARE DISCOVERED IN PLAIN VIEW, IN THEIR PRESENCE, IS SUCH PROOF, WITHOUT MORE, SUFFICIENT TO SUPPORT A CONVICTION FOR CONSTRUCTIVE POSSESSION AS TO EACH PERSON?

The judgment and sentence of the trial court are hereby affirmed.

ANSTEAD, J., concurs specially, with opinion.

RIVKIND, LEONARD, Associate Judge, dissents, with opinion.

ANSTEAD, Judge,

specially concurring:

I concur in Judge Beranek’s opinion and agree that the questions certified are of great public importance. The concept of constructive possession has proven to be a difficult concept to define and, once defined, even more difficult to apply to facts similar to those present herein. In essence, at issue is whether an owner and co-tenant may, simply by reason of his knowledge of the presence of a controlled substance on the premises, be deemed to be in possession of such substance. As Judge Rivkind notes, there are numerous Florida appellate decisions which appear to hold that evidence similar to that produced herein is insufficient to establish constructive possession. There are, of course, also as noted by Judge Rivkind, cases which reach a contrary result.

On the other hand, when one considers the definition of constructive possession contained in the standard jury instructions and given to the jury here, it is easier to understand how the jury could find the evidence sufficient:

Possession may be actual or constructive. If a thing is in the hand, or on the person, or in a bag or container in the hand or on the person, or is so close as to be within ready reach and is under the control of the person, it is in the actual possession of that person.
If a thing be in a place over which the person has control and knowledge of its presence, or in which the person has hidden or concealed it, it is in the constructive possession of that person.
Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In such case, each of such persons is legally in possession of that article.

This instruction permits conviction based upon evidence of knowledge and control over the place where the contraband is located, in this case a residence, as opposed to evidence of control over the contraband itself. The instruction further provides for joint possession thereby clearing the way for joint occupants of a residence to be subject to conviction for constructive possession where there is evidence that they had knowledge of the presence of the contraband. However, as noted by Judge Rivkind, there are numerous cases which appear to hold that in cases of joint possession there must not only be evidence of knowledge, there must also be independent evidence of control of the contraband itself. If this analysis is correct, it would appear that the cited case law and the instruction are in conflict.

Underlying all of this is the question of how far the legislature intended to go in restricting a person’s contact with illegal drugs. Was the legislative net intended to catch persons who simply had joint control over premises in which they knew that others possessed contraband? Or did the legislature intend that only those who had some legal possessory interest in the contraband, or intent to possess, were to be held criminally responsible? The case law cited by Judge Rivkind would appear to suggest the latter while the standard jury instruction would suggest the former. In simply prohibiting actual or constructive possession the legislature has given us little guidance on this issue. Ordinarily, however, in order for a person to be guilty of criminal conduct he must have intended to do the act which has been made unlawful, here possession of illicit drugs. That being so it would appear that the state should be required to prove that the defendant intended to possess the contraband contrary to the provisions of the law. No such requirement is contained in the standard jury instruction and there is little discussion of this matter in the case law. Perhaps that is what is meant by ability to “control.” In any case we are all in agreement that the law is far from clear on this issue and a resolution by the Supreme Court will be welcomed.

RIVKIND, LEONARD,

Associate Judge, dissenting:

The facts are fully detailed in Judge Ber-anek’s opinion. While the reported cases involving constructive possession of narcotics have not been a model of consistency, on the whole, nevertheless, similar evidence as exists sub judice has resulted in numerous reversals of convictions. The cases are rare in which a constructive possession conviction survives an appeal.

I find myself in agreement with much of Judge Anstead’s specially concurring opinion. However, I am unwilling to join the majority affirmance solely because of what I perceive to be unequal treatment when this case is considered in the light of numerous reversals involving facts which, when compared herewith, are indistinguishable.

Since the defendant was not in actual physical possession of the marijuana, the conviction had to rest on constructive possession. As stated in Sindrich v. State, 322 So.2d 589, 591 (Fla. 1st DCA 1975), the following principles are applicable to constructive possession cases:

(1)The State must establish beyond a reasonable doubt that the accused knew of the presence of the narcotic drugs on the premises.
(2) If the premises are in the exclusive possession and control of the accused, knowledge of the presence of the narcotic drugs coupled with his ability to maintain control over them may be inferred, but the inference is rebuttable and not conclusive.
(3) If the premises are in the joint possession of the accused, knowledge of the presence of drugs, the drug’s presence and ability to maintain control will not be inferred, but must be established by proof.
(4) Proof of knowledge of the presence of drugs may consist of evidence establishing actual knowledge, or evidence of incriminating statements and circumstances from which a jury might lawfully infer knowledge by the accused of the drug’s presence.
(5) Such inference must be reasonable from proven facts but not based upon inference.

The proofs sub judice fall short of stripping the defendant of the presumption of innocence. The proofs considered by the jury fall within the category of a mere probability of guilt and not proof of guilt beyond and to the exclusion of every reasonable doubt. Precedent commands reversal.

Ergo, I dissent.

      . The following convictions were reversed: Smith v. State, 279 So.2d 27 (Fla.1973). Illegal drugs found along with woman’s costume jewelry in a dresser drawer in bedroom jointly occupied by defendant and his wife. Court held that knowledge cannot be inferred because defendant is head of household; D. K. W. v. State, 398 So.2d 885 (Fla. 1st DCA 1981). Appellant and co-defendant admitted smoking marijuana which was discovered in a public place, behind a wall at a school, in special proximity equally near both boys. The co-defendant testified that it was his marijuana; Shad v. State, 394 So.2d 1114 (Fla. 1st DCA 1981). Marijuana was discovered in trunk of automobile in which defendant was a passenger concealed under a blanket on top of which were clothes belonging to defendant; Gaynus v. State, 380 So.2d 1174 (Fla. 4th DCA 1980). Defendant did not own but occupied premises with others where drugs or paraphernalia were discovered in a bedroom, briefcase, kitchen cupboards and pantry; Thompson v. State, 375 So.2d 633 (Fla. 4th DCA 1979). Defendant and two other men present when illegal drugs discovered in a bedroom where defendant kept his clothes. Evidence did not support finding defendant was the exclusive occupant of the bedroom. Exclusive occupancy, not occupancy alone, proves constructive possession; Daudt v. State, 368 So.2d 52 (Fla. 2d DCA 1979). Defendant was go-between in sale of marijuana. Defendant knew of presence but no evidence the marijuana belonged to him or was under his control; Falin v. State, 367 So.2d 675 (Fla. 3d DCA 1979). Hotel room registered to defendant and occupied by him and girl friend. Illegal drugs found in a suitcase containing a BB gun owned by defendant. Defendant was not present when search occurred; Clark v. State, 359 So.2d 458 (Fla. 3d DCA 1978). Marijuana found in a handball container located in a dresser drawer in bedroom occupied by defendant and his wife; Manning v. State, 355 So.2d 166 (Fla. 4th DCA 1978). Marijuana found in unlocked center console with defendant behind the wheel of parked automobile in which four other persons were present. Held that even if defendant owned the automobile (not established) he had only joint possession and control over the vehicle. There was no evidence defendant knew of presence of marijuana. Passengers had equal access and mere proof of ownership alone of a vehicle does not permit an inference of knowledge of presence; Brownlee v. State, 354 So.2d 120 (Fla. 3d DCA 1978). Marijuana found in a plastic bag on a night stand located between two beds in a bedroom which defendant admitted was his room. A young female was in one of the two beds located in that room; Doby v. State, 352 So.2d 1236 (Fla. 1st DCA 1977). Illegal drugs secreted in defendant’s wheelchair. Other inmates of prison had access to wheelchair out of defendant’s presence; Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977). Defendant was owner of premises but out of town during search. Illegal drugs found in kitchen which was easily accessible to all persons entering the premises; Jordan v. State, 344 So.2d 1294 (Fla. 3d DCA 1977). Marijuana found in apartment in which defendant resided with female roommate; Britton v. State, 336 So.2d 663 (Fla. 1st DCA 1976). This is the “plain smell” case in which the odor of marijuana emanated from a trailer in which defendant and two others were present. No one was smoking. Substantial quantity of marijuana found in trailer. The reversal may have been based on illegal search; Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976). Defendant was the operator of a borrowed automobile in which another was a passenger. A bag of marijuana was in close proximity to defendant. There were two roaches and a roach clip in the ash tray, a pipe on the center console and the smell of marijuana was present in the automobile. There was evidence that others had been in the automobile before defendant borrowed it and that defendant did not see the bag, roaches or roach clip; Tomlin v. State, 333 So.2d 500 (Fla. 2d DCA 1976). House owned by defendant in which others rented rooms. Marijuana discovered in unspecified location; Townsend v. State, 330 So.2d 513 (Fla. 4th DCA 1976). Contraband in automobile held not in exclusive possession of passenger; Thiel v. State, 326 So.2d 460 (Fla. 4th DCA 1976). Marijuana found under dashboard of automobile in which defendant was passenger; Moore v. State, 325 So.2d 466 (Fla. 4th DCA 1976). Controlled substance and paraphernalia found in an automobile jointly occupied by defendant and its co-owner; Sindrich v. State, 322 So.2d 589 (Fla. 1st DCA 1975). Marijuana found in trunk of rental truck. Defendants were college students hired to drive the truck to Columbus, Ohio from Miami. Defendants denied knowledge of contents of trunk; Willis v. State, 320 So.2d 823 (Fla. 4th DCA 1975). Barbituates found under bed in which defendant had been resting and also in dresser drawer. Apartment occupied by defendant and wife. Defendant had been out of town immediately prior to search and several persons had been seen going in and out of the apartment the evening of the search. Defendant denied all knowledge of presence; Taylor v. State, 319 So.2d 114 (Fla. 2d DCA 1975). Defendant was visitor in close proximity to marijuana in the living room while others were also present; Hilding v. State, 291 So.2d 111 (Fla. 4th DCA 1974). Defendant drove wife to post office where she received in her rental box an envelope containing a Christmas card and packet of cocaine. Wife as co-defendant had been acquitted by jury; Mosley v. State, 281 So.2d 590 (Fla. 4th DCA 1973). Drugs found in apartment occupied by defendant’s paramour. Defendant occupied apartment sporadically; Medlin v. State, 279 So.2d 41 (Fla. 4th DCA 1973). Defendant owned residence but was not present at time of search. Defendant’s brother and two other persons were present when search was conducted; Griffin v. State, 276 So.2d 191 (Fla. 4th DCA 1973). Contraband discovered in various places of residence occupied by defendant. Many persons, including the defendant, were seen going in and out of the residence during the week prior to the raid; Torres v. State, 253 So.2d 450 (Fla. 3d DCA 1971). Marijuana was found in closet and bathroom of apartment rented to another but occupied by defendant for several days; Kirtley v. State, 245 So.2d 282 (Fla. 3d DCA 1971). Defendant rented motel facilities which he shared with a female. Many persons were seen going in and out on the day in question; Langdon v. State, 235 So.2d 321 (Fla. 3d DCA 1970). Marijuana found in bus which defendant and others lived. Eight persons were present in bus when contraband discovered; Markman v. State, 210 So.2d 486 (Fla. 3d DCA 1968). Defendant was co-lessee of apartment and not present when contraband was found. Other persons also had access to premises. See, also, Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967) and Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965).

      . The following convictions were affirmed: Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981). Search of residence in which defendant, his wife and children resided disclosed a bag containing marijuana in defendant’s closet and bore his name and address; Robinson v. State, 389 So.2d 1067 (Fla. 4th DCA 1980). Drugs found in defendant’s bedroom and in his clothes in house occupied by defendant and others; Sanders v. State, 378 So.2d 880 (Fla. 1st DCA 1980). Facts that defendant owned the automobile and the other occupants denied knowledge of the marijuana were sufficient to withstand motion to dismiss; Thames v. State, 366 So.2d 1261 (Fla. 1st DCA 1979). Marijuana found in drawer in bedroom when defendant was sleeping. Other persons shared occupancy of residence. The drawer contained mail addressed to defendant and his picture hung on wall of bedroom; Winchell v. State, 362 So.2d 992 (Fla. 3d DCA 1978). Defendant alone in hotel occupied by her and boy friend, the latter being the registered guest, when marijuana and pipe found in plain view on dresser; Norman v. State, 362 So.2d 444 (Fla. 1st DCA 1978). Defendant admitted he knew marijuana was in barn on farm he rented; Norris v. State, 351 So.2d 729 (Fla. 3d DCA 1977). Defendant owner and occupant of apartment in which marijuana was found when defendant and another present at time of search. No evidence apartment jointly occupied with another person; Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977). Smell of marijuana and sight Of smoke emanating from an automobile occupied by more than one person; Zicca v. State, 232 So.2d 414 (Fla. 3d DCA 1970). Marijuana in open view in bus owned and operated by defendant with three other persons in vehicle. See, also, Davis v. State, 350 So.2d 834 (Fla. 2d DCA 1977) and Lattimore v. State, 214 So.2d 771 (Fla. 3d DCA 1968) (lottery tickets).

      . Compare the facts summarized in the cases cited in footnotes 1 and 2 with the facts of the instant case.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Leonard K. BROWN, Appellee.
    No. 80-1790.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Steve Gomberg and Gay Broome, Asst. State Attys., West Palm Beach, for appellant.

      Fred H. Gelston of Adams, Coogler, Watson & Smith, West Palm Beach, for appel-lee.
   DOWNEY, Judge.

The State appeals from an order of the County Court of Palm Beach County dismissing an information against appellee on the grounds that the statute giving rise to the charge is unconstitutional. This court has jurisdiction. Art. V, § 4(b)(1), Fla. Const.; Art. V, § 5(b), Fla.Const.; § 26.-012(1), Fla.Stat. (Supp.1980).

It appears appellant was in charge of the transportation department of the Palm Beach County School Board. Maintenance of the county school buses was included in the duties of that department. During the fiscal year 1979-80 appellant allegedly disposed of tire carcasses or casings (which had been removed from school buses) without competitive bidding, in violation of Section 274.06, Florida Statutes (1979). More specifically, the information the State Attorney filed against appellee charged, in pertinent part, that between June 1, 1979, and January 11, 1980, appellee disposed of tire carcasses and casings, being property of the Palm Beach County School Board having a value in excess of $200 (which property was obsolete or uneconomical or inefficient or had no useful function) without soliciting bids therefor or selling said property at public auction as required by Section 274.06, Florida Statutes. Appellee moved to dismiss the information on the ground the statute was vague and indefinite as to what specific property is subject to its terms, thereby violating appellee’s due process rights. The trial court agreed, declared the statute unconstitutional, and dismissed the information. Section 274.06, Florida Statutes (1979), provides:

Alternative procedure. — Having consideration for the best interests of the county or district, a governmental unit’s property that is obsolete or the continued use of which is uneconomical or inefficient, or which serves no useful function, which property is not otherwise lawfully disposed of, may be disposed of for value without bids to the state, to any governmental unit, or to any political subdivision as defined in s. 1.01, or if the property is without commercial value it may be donated, destroyed, or abandoned. The determination of property to be disposed of by a governmental unit pursuant to this section instead of pursuant to other provisions of law shall be at the election of such governmental unit in the reasonable exercise of its discretion. Property, the value of which the governmental unit estimates to be between $100 and $200, shall be sold only to the highest responsible bidder after a request for at least three bids, or by public auction. Any sale of property the value of which the governmental unit estimates to be $200 or more shall be sold only to the highest responsible bidder, or by public auction, after publication of notice not less than 1 week nor more than 2 weeks prior to sale in a newspaper having a general circulation in the county or district in which is located the official office of the governmental unit, and in additional newspapers if in the judgment of the governmental unit the best interests of the county or district will better be served by the additional notices; provided that nothing herein contained shall be construed to require the sheriff of a county to advertise the sale of miscellaneous contraband of an estimated value of less than $200.

For purposes of this case the key word in the statute is “property.” That word is defined in Section 274.01(3), as follows:

“Property” means all tangible personal property, owned by a governmental unit, of a nonconsumable nature.

Appellee attacks Section 274.06 by characterizing as vague the phrase “of a non-consumable nature” in Section 274.01(3). In his written order declaring Section 274.-06 unconstitutional the trial judge stated:

“What does ‘noneonsumable’ mean? What does ‘consumable’ mean?
“If ‘consumable’ means that which can be used — or used up — then ‘nonconsuma-ble’ would mean that which cannot be used — or used up.
“However, if ‘consumable’ means something that can be sold, then ‘nonconsuma-ble’ would mean something that could not be sold.
“In any event, these different meanings might require different conduct under the statute. At best the statutory definition is confusing.”

Whether a statute is unconstitutionally vague depends upon whether the language conveys sufficient warnings of the proscribed conduct measured by common understanding and practice. Newman v. Carson, 280 So.2d 426 (Fla.1973). Words of common usage in a statute should be given their natural, usual, plain, ordinary meanings unless they are used in a technical sense. Therefore, courts should attribute to words used in a statute the ordinary meaning usually attributed to them unless a different meaning or connotation is necessarily implied from the manner or context in which the words are used. 30 Fla.Jur., Statutes, § 87.

Webster’s Seventh New Collegiate Dictionary (1971) defines the word “consume” as “to do away with completely,” or “to spend wastefully,” or “to use up.” “Consumable” is defined as “capable of being consumed.” Looking next to the context in which this ordinary word “nonconsumable” is used, we find that Chapter 274, Florida Statutes (1979), deals with the acquisition, maintenance, and disposition of tangible personal property of a nonconsumable nature owned by counties, districts, and other governmental subdivisions of the State. Section 274.06 provides an alternative procedure (to Section 274.05) for the disposition of surplus tangible nonconsumable property of a governmental unit. If the governmental unit determines surplus property has a value of $200 or more, it must be sold only to the highest responsible bidder after publication of notice, or sold at public auction. If the property has no commercial value, it may be donated, destroyed, or abandoned. Appellee is charged with selling tires valued in excess of $200 without soliciting bids or selling at public auction.

We would suppose nearly everything can be totally consumed today, what with atom and neutron capabilities. Therefore, the reasonable meaning to be ascribed to the term “nonconsumable” in the context in which it appears is “not capable of being used up or extinguished when used for its intended purpose.” It appears to us that the statute involved seeks to prohibit, without the procedural safeguards set forth, the disposal of property which has a value because it has not and cannot be used up when used for its intended purpose. Considered in that light, the statute authorizes a governmental unit to dispose of its tangible personal property which cannot be used up when used for its intended purpose, but when it disposes of that property it must follow the procedures set forth therein and either obtain bids or sell at public auction after appropriate publication. One would suppose that property of the governmental unit which can be consumed when used for its intended purpose, e.g., pencils, stationery, and paper clips, will be consumed by the unit and its disposition is not authorized by this chapter.

If the word “nonconsumable” is so construed, we feel confident the average person will be apprised of the type of property which is covered by Section 274.06, so the alleged vagueness attributed to that statute does not exist.

Accordingly, the order of the County Court holding the statute unconstitutional is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED, with directions.

LETTS, C. J., and BERANEK, J., concur.

      . We would envision the statute is intended to authorize the sale of property such as old desks, free standing lockers, old fashioned mimeograph machines, and other such property which has become obsolete and uneconomical to use by the governmental unit. It may still have some commercial value and the statute is calculated to obtain that diminished value for the governmental unit.


text:
    Richard Eugene MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1866.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Estrada v. State, 400 So.2d 562 (Fla. 3d DCA 1981).

DOWNEY, ANSTEAD and GLICK-STEIN, JJ., concur.


author: PER CURIAM. OWEN, WILLIAM C., Jr. (Retired), Associate Judge,

text:
    Ernest HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 80-1915.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed on the authority of Bell v. State, 394 So.2d 979 (Fla.1981), and remanded for a new trial.

REVERSED AND REMANDED.

LETTS, C. J., and BERANEK, J., concur.

OWEN, WILLIAM C., Jr. (Retired), Associate Judge, dissents with opinion.

OWEN, WILLIAM C., Jr. (Retired), Associate Judge,

dissenting:

Appellant was convicted by a jury of robbery with a weapon. Over his objection, the court denied his requested instruction that an intent to permanently deprive the victim is an essential element of the crime. My colleagues and I are in complete accord that this was clearly error, Bell v. State, 394 So.2d 979 (Fla.1981). The point of my departure from the majority’s decision to reverse and remand for a new trial is my firm conviction that beyond any doubt the error was harmless.

There are no disputes on the essential facts. On March 13, 1980, during daylight and regular business hours, appellant (together with a codefendant, Wilford Morris), walked into a retail store and spoke briefly to the manager, Mr. Klein, concerning some merchandise. As Mr. Klein turned to go into the storeroom, appellant said, “This is a stickup. I have a gun.” Initially, Mr. Klein was taken to a bathroom at the back of the store. When appellant and Morris were unable to open the cash drawer, they brought Mr. Klein back to the front of the store and forced him to open the cash drawer. After taking the cash and some merchandise, appellant and Morris fled the premises. Mr. Klein immediately notified the police, who shortly thereafter apprehended appellant and Morris and returned them to the store where Mr. Klein made a positive identification. A police officer corroborated the identification. Neither appellant nor Morris testified or offered any evidence. The case then went to the jury.

On these facts there was not nor could there be any real issue or dispute on the element of intent to permanently deprive the victim. Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981), involved an instruction on robbery from which the court had omitted intent as an element. However, since Williams neither had requested an instruction on specific intent nor had objected to the court’s failure to so instruct, the issue facing the Williams court was whether the error was so egregious as to be classified as fundamental, thus permitting it to be urged on appeal though not properly preserved in the trial court. Noting first that fundamental error, as defined in Castor v. State, 365 So.2d 701, 704 (Fla.1978), is error which “must amount to a denial of due process,” the Williams court concluded that the omission of the intent element from a robbery instruction is not fundamental error in the absence of a real dispute on that question. Accord, McMurtroy v. State, 400 So.2d 547 (Fla. 3d DCA 1981).

The Williams case is sound authority upon which to rely in concluding that the error did not deny appellant due process. Yet, I recognize that it has been broadly and generally stated in the jurisprudence of this state that an indispensable requisite of a fair and impartial trial under constitutional due process of law protection is the right to have the court correctly and intelligently instruct the jury on the essential and material elements of the crime charged. My examination of representative cases which have enunciated and applied this general principle leads me to the conclusion that almost invariably the omission or misstatement in the instruction concerned an element of the offense (or in some instances, a defense) critical to the jury’s being able to accord the defendant a fair trial. Considered in that context, this broad general principle is not violated by the views I here espouse or by the holding in Williams v. State, supra.

Once it has been demonstrated that the error did not amount to a denial of due process, it becomes simply a question of whether the error resulted in a miscarriage of justice or injuriously affected the substantial rights of appellant. If it did, it was reversible error. If it did not, it was harmless. Turning to the uncontroverted evidence, it is conceivable that the jury could have concluded that the identification of appellant and his codefendant was not sufficiently credible to convict, or that Mr. Klein’s testimony was not sufficiently credible to establish with the requisite degree of proof that money or other property of value was taken from the person or custody of Mr. Klein by force, violence, assault or putting in fear. However, once the jury concluded (as it obviously did) that appellant and his codefendant were the culprits and had taken money or other property of value from the person or custody of Mr. Klein by force, violence, assault or putting in fear, it is totally inconceivable and beyond all comprehension that the jury could have failed to find from the evidence that appellant and Morris had every intent to permanently deprive the victim of the possession, use and enjoyment of the property. I am satisfied beyond all doubt, from an examination of the entire case, that the jury’s verdict would necessarily have been the same had the court included in its instruction the element of intent to deprivé. I necessarily conclude that the error did not prejudice appellant or Morris, nor did it result in any miscarriage of justice or injuriously affect the substantial rights of either, and therefore it was clearly within the contemplation of the harmless error statutes. I would affirm the judgment.

I have not overlooked Hodge v. State, 393 So.2d 1188 (Fla. 3d DCA 1981) in which the court, in a brief per curiam opinion, citing Bell v. State, supra, reversed a robbery conviction and remanded, for a new trial because the trial court erroneously had denied a requested instruction that intent to deprive is an essential element of the crime. While no facts are given in the Hodge opinion, we are told in Williams v. State, supra, at 545 n. 7, that intent to deprive was an issue in genuine dispute in the Hodge case, a clearly distinguishing factor.

For such value as it may have, coming as it does from the dissenting opinion, one other matter deserves comment. The state contends that since the court charged the jury in the language of the standard jury instruction, the given charge cannot be claimed as error, citing this Court’s opinion in Pendleton v. State, 348 So.2d 1206, 1209 (Fla. 4th DCA 1977). The precise language in the Pendleton case, “... the use of the standard jury instruction cannot be claimed as error,” when considered alone and out of context is overly broad, and should not be construed to confer infallibility on the standard jury instructions. The proper approach to the applicability and use of standard jury instructions has been repeatedly explicated in a number of cases. See, e.g., State v. Bryan, 287 So.2d 73 (Fla.1973), cert. denied, 417 U.S. 912, 94 S.Ct. 2611, 41 L.Ed.2d 216 (1974); Davis v. State, 373 So.2d 382 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 756 (Fla.1980); Edwards v. State, 351 So.2d 358 (Fla. 4th DCA 1977).

      . At the charge conference the attorneys for appellant and his codefendant submitted a written request for a jury instruction that intent to deprive the victim is an essential element of the crime, citing the Supreme Court’s opinion in Bell v. State, as it appeared in non-final form in 1980 FLW 114. The trial court’s denial of the requested instruction may have been due to the fact that the Bell case was still pending in the Supreme Court on timely filed petition for rehearing, final disposition of which was not made until well after the trial. The court instructed the jury on the elements of robbery in accordance with the then current standard jury instruction in criminal cases, which, subsequent to the trial, was revised to include, as one of the elements of robbery, the intent of the offender to permanently deprive the victim.

      . See, e.g., Gerds v. State, 64 So.2d 915 (Fla.1953), and the numerous cases cited and discussed by Judge Schwartz in Williams v. State, 400 So.2d 542, 544-545 (Fla. 3d DCA 1981).

      . Ibid.

      . Section 59.041, Florida Statutes (1979) provides:
      Harmless error; effect. — No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.
      Section 924.33, Florida Statutes (1979) provides:
      When judgment not to be reversed or modified. — No judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.


author: PER CURIAM. OWEN, WILLIAM C., Jr., Associate Judge (Retired),

text:
    Wilford MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1933.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.

      Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

REVERSED on the authority of Bell v. State, 394 So.2d 979 (Fla.1981), and remanded for a new trial.

REVERSED.

LETTS, C. J., and BERANEK, J., concur.

OWEN, WILLIAM C., Jr., Associate Judge (Retired), dissents with opinion.

OWEN, WILLIAM C., Jr., Associate Judge (Retired),

dissenting:

I dissent for the reasons stated in my dissenting opinion in Holmes v. State, 412 So.2d 429 (Fla. 4th DCA 1982).


text:
    David W. MARGOLIS, individually, and for the use and benefit of Lida W. Graves, as Personal Representative of the Estate of Ernest H. Graves, Appellant, v. GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORP., LTD., Appellee.
    No. 81-198.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Marjorie D. Gadarian and Charles H. Damsel, Jr., West Palm Beach, for appellant.
    Steven R. Berger, Miami, for appellee.
   PER CURIAM.

Affirmed on the authority of South Carolina Insurance Co. v. Heuer, 402 So.2d 480 (Fla. 4th DCA 1981), pet. for rev. denied, 412 So.2d 465 (Fla.1982).

GLICKSTEIN and HURLEY, JJ., and GREEN, OLIVER L., Associate Judge, concur.


author: LETTS, Chief Judge.

text:
    Saverio PETRULLI and Janie M. Petrulli, his wife, Appellants, v. Dorothy CASTELLANO, Individually and as Personal Representative of the Estate of John F. Castellano, Appellee.
    No. 81-599.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.

      Gary R. Marlin of M. S. Marlin, P. A., Coral Gables, for appellants.
    Angeline G. Weir, Hollywood, for appel-lee.
   LETTS, Chief Judge.

This appeal arises from the award of an attorney’s fee to a borrower who successfully defended a mortgage foreclosure action. We reverse.

The promissory note secured by the mortgage provided for a reasonable attorney’s fee to be awarded to the lender “in the event suit shall be brought for the collection hereof.” For reasons which are not necessary to our conclusion, summary judgment was entered in favor of the borrower and later attorney’s fees were also awarded to the borrower’s attorney “just as a matter of equity, good conscience and mutuality.”

We cannot agree with this conclusion. The request for attorney’s fees was not made under Section 57.105, Florida Statutes (1981), but solely on the ground that the borrower had “prevailed.” However, this is not a question of the prevailing party being entitled to attorney’s fees. It is a simple contractual provision allowing only the lender to obtain a reasonable attorney’s fee if he successfully forecloses. We see nothing wrong with that and disagree with the mutuality of remedy premise. Attorney’s fees are in derogation of the common law, Great American Indemnity Company v. Williams, 85 So.2d 619 (Fla.1956), and by analogy were not normally obtainable in landlord tenant cases prior to the adoption of Section 83.48, Florida Statutes (1981), which provides:

If a rental agreement contains a provision allowing attorney’s fees to the landlord when he is required to take any action to enforce the rental agreement, the court may also allow reasonable attorney’s fees to the tenant when he prevails .... [See Guthartz v. Lewis, 408 So.2d 600 (Fla. 3d DCA 1981)]

A promissory note is just as much a contract as a rental agreement. In consequence, in the absence of a statute, we will not rewrite contracts unless they are unconscionable or against public policy, neither of which is so in this instance.

REVERSED.

BERANEK and GLICKSTEIN, JJ., concur.

      . The borrower claims on appeal that the lender’s refusal to permit the payments to be brought current was arbitrary, but we see nothing whatever to support a claim of a complete absence of a justiciable issue under Section 57.105 nor did the judge base the award on this premise.


text:
    Janet L. BASHAW, Appellant, v. Thomas A. BASHAW, Appellee.
    No. 81-868.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.

      N. Richard Schopp, Port St. Lucie, for appellant.
    Roger N. Messer of Sneed & Messer, P. A., Fort Pierce, for appellee.
   DOWNEY, Judge.

The appellant, Janet L. Bashaw, petitioned the trial court to modify the final judgment of dissolution and increase the amount of alimony awarded to her. From an order denying her petition appellant has perfected this appeal. We affirm.

In the final judgment of dissolution the trial court awarded the appellant a piece of rental property in Dallas, Texas, which produces a net rental of $255 per month; $312.50 per month rehabilitative alimony for 24 months; possession of the marital home for 24 months; some personal property; and attorney’s fees. At that time the wife was earning $98 per week. The judge awarded appellee the marital home (subject to the appellant’s possession for 24 months) and some personal property. At that time the husband’s annual income was approximately $32,000.

Mrs. Bashaw’s appeal from the final judgment resulted in this court’s reversing the award of rehabilitative alimony and directing that it be made permanent. Some months after this court’s mandate issued, appellant filed her petition to modify the award of alimony from $312.50 to $850 per month and to extend her possession of the marital home until the hearing on the petition to modify.

The evidence adduced by the parties at the modification hearing showed that at the time of the hearing appellant had income of $150 per week from her salary; her income from the Dallas rental property had increased by $25 per month from the time of dissolution and she received $160 per month from a boarder in a home that she had been forced to rent when her possession of the marital home was terminated. She also received $350 per month permanent alimony. On the liability side of the ledger, appellant was paying $350 per month rent and owed numerous bills. The evidence relative to the husband’s changed circumstances reflected that he was then earning approximately $42,000 per year.

According to appellant’s calculations the appellee’s income had increased approximately 25% during the interim from final judgment to hearing on the petition for modification. The appellant’s income picture increased at about the same rate, if one excludes the income from the boarder. Of course, appellant has certain outstanding bills and she now has to pay rent for lodging, whereas, at final judgment she was given possession of the marital home for 24 months. However, these latter circumstances were contemplated by the final judgment and thus may not be considered as a change in circumstances. Jaffee v. Jaffee, 394 So.2d 443 (Fla. 3rd DCA 1981); Ashburn v. Ashburn, 350 So.2d 1158 (Fla. 2d DCA 1977); Howell v. Howell, 301 So.2d 781 (Fla. 2d DCA 1974).

When one considers appellant’s current financial situation as compared with appel-lee’s, the disparity in incomes lies in the original award made in the final judgment, which this court approved in the prior appeal except for the rehabilitative alimony. Excluding anticipated changes, the disparity has not changed substantially. Thus, no error has been demonstrated in the order appealed from.

AFFIRMED.

LETTS, C. J., and HURLEY, J., concur.

      . Bashaw v. Bashaw, 382 So.2d 1352 (Fla. 4th DCA 1980).


text:
    Barbara BEVACQUA, Appellant, v. Michael BEVACQUA, Appellee.
    No. 81-881.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Jeanne E. Faiks, Fort Lauderdale, for appellant.
    Frederick C. Buresh of Sciarretta, Jackvony & Buresh, P. A., Fort Lauderdale, for appellee.
   PER CURIAM.

Appellant seeks reversal of a final judgment of dissolution because the trial court 1) refused to award her the marital home as lump sum alimony; 2) awarded her only $35 per week rehabilitative alimony; 3) refused to award her attorney’s fees, costs and expenses; 4) refused to require appellee to satisfy a lien on the parties’ condominium; and 5) refused to award lump sum child support.

Although the award of rehabilitative alimony was somewhat meagre, we hold that the trial judge acted within the parameters of his discretion in making the various determinations complained of with the exception of his refusal to award appellant any attorney’s fees in the final judgment. It appears from the record and oral argument that appellant had a clear need for attorney’s fees over and above the award pen-dente lite. While the appellee’s ability to pay is not abundant, it is certainly sufficient to meet appellant’s need to obtain counsel.

Accordingly, the judgment appealed from is affirmed in all respects except the failure to award appellant attorney’s fees is reversed and the cause is remanded with directions to award appellant a reasonable attorney’s fee for services of her counsel in the trial court.

AFFIRMED IN PART; REVERSED IN PART, and remanded with directions.

DOWNEY and HERSEY, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    Mary C. COCHRAN, Appellant, v. Joseph D. COCHRAN, Appellee.
    No. 81-983.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Michael H. Gora of Wolff & Gora, Fort Lauderdale, for appellant.
    Walter Urchisin of Walter Urchisin & Associates, P. A., Deerfield Beach, for ap-pellee.
   PER CURIAM.

AFFIRMED. In our view the trial court’s order denying the appellant’s motion for relief from judgment should be affirmed because the trial court had previously entered an order denying a motion for new trial on the same grounds, and an appeal from that order was dismissed. The appellant was not entitled to relitigate the same issue a second time.

ANSTEAD, HURLEY and DELL, JJ., concur.


author: DELL, Judge.

text:
    Gregory CUMMINGS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1139.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.

      Edna L. Caruso, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Gregory Cummings appeals his conviction and sentence for aggravated battery with a firearm, shooting at or into a public or private building, and aggravated assault with a firearm.

While attempting to purchase a five dollar bag of marijuana, appellant was beaten and several items of personal property were taken from him. The parties did not dispute the fact that a shooting occurred following this incident. The question was who fired the gun. Appellant denied that he did the shooting and testified that a passenger in his van fired the gun. During direct examination appellant’s counsel asked if he had ever been convicted of a felony and he answered, “Yes, once.” On cross-examination, the prosecutor asked over objection, “How many times have you been convicted of a crime?” Appellant answered five to seven times. During argument the prosecutor emphasized the convictions, and when appellant challenged the credibility of a witness who identified him as holding the gun the prosecutor argued that “The State Attorney’s office does not deal with people that commit violent crimes. There is no negotiations [sic]. There is no leniency.” The prosecutor also argued that she was sure that an auto body man, called as a witness by the appellant, had been paid nicely for the body work on appellant’s van. Neither party had introduced evidence regarding the amount paid for the body work.

Appellant raises several points on appeal, one of which requires the remand of this case for a new trial, and another merits discussion. First, appellant contends that the trial court erred in allowing the prosecutor to cross-examine as to his conviction of “crimes,” and secondly, appellant contends that in closing argument the prosecutor made improper comments unsupported by the evidence.

Appellant’s first point would have no merit if the trial of this case had occurred prior to July 1, 1979. The law was well established that when a defendant in a criminal case took the stand to testify, the prosecution could attempt to impeach his or her credibility by asking the witness about previous convictions of any crime, and the number of criminal convictions. § 90.08, Fla.Stat. (Supp.1978); Goodman v. State, 336 So.2d 1264 (Fla. 4th DCA 1976); Mead v. State, 86 So.2d 773 (Fla.1956). However, Section 90.610(1), Florida Statutes, effective July 1, 1979, governs this case. It provides

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment .... (Emphasis added).

This statute clearly restricts the crimes which may be considered when attempting to impeach a witness on past convictions.

If the witness admits the number of his-convictions, the prosecution may not ask further questions regarding prior convictions, and in particular the prosecution may not question the witness as to the nature of the crimes. The defendant may voluntarily reveal the nature of any crime, but the prosecution must not invite him to volunteer. If the witness denies a conviction, the prosecution can impeach him by introducing a certified record of that conviction, which will necessarily reveal the nature of the crime. Goodman, supra; Irvin v. State, 324 So.2d 684 (Fla. 4th DCA 1976). The enactment of Section 90.610(1) does not affect the rules governing the elicitation of the nature of a prior conviction.

In Davis v. State, 397 So.2d 1005 (Fla. 1st DCA 1981), the Court discussed the importance of the form of the question to be asked when attacking the witness’s credibility based on past convictions. In Davis, supra, the prosecutor asked the defendant, “Have you ever been convicted of a crime punishable by death or imprisonment in excess of one year under the law in which you were convicted?” The Court found prejudice despite the fact that the prosecutor propounded the question in the exact statutory language. To elicit this information in one question could create an inference, especially in a murder prosecution, that the defendant had been once convicted of a capital crime when he might in fact have been convicted of a minor felony. However, to ask two questions could also create prejudice, for if the defendant testified that he had previously been convicted of a crime punishable by death, then he has virtually been forced to reveal the nature of the prior conviction. Therefore the Court found it preferable to ask if the defendant has béen convicted of a felony. This simple inquiry encompasses the statutory elements and eliminates prejudice.

Appellant has the opposite problem of the witnesses in Davis v. State, supra. The prosecutor made no effort to elicit the nature of his crimes, but the questioning had the same prejudicial result because of the introduction of inadmissible evidence. Evidence of prior convictions for misdemeanors not involving dishonesty or false statements is irrelevant. Cross-examination regarding irrelevant criminal incidents is reversible error. Sneed v. State, 397 So.2d 931 (Fla. 5th DCA 1981). The prosecutor knew that the statute did not encompass all misdemeanor convictions. She argued to the judge that the Evidence Code allowed her to ask about felonies and also about crimes involving “theft or untruthfulness,” although the statutory language is dishonesty or false statement. Yet she asked, “How many times have you been convicted of a crime?” This question placed the appellant in an inescapable dilemma. If he answered, “Once,” as he had before, or gave the number of admissible convictions (assuming it was less than his total number of convictions), then his answer to the question as phrased was perjury. But by answering truthfully, he had to decide whether to reveal the nature of his prior convictions. This placed him at a tactical disadvantage, for to further discuss these other crimes only underlines the fact of his many prior convictions, impermissibly raising an inference of general criminal propensity. The prosecutor capitalized on the different answers to the questions in her argument to the jury. She implied that defense counsel’s questions about how many times appellant had been convicted of a felony was improper and asked for the purpose of misleading the jury. She said that she asked the proper question and stated that the appellant’s answer demonstrated that he previously lied to the jury. Because appellant answered two different questions truthfully, his credibility was materially diminished.

To contradict a witness by past convictions a record of such convictions must be introduced into evidence. Rommell v. Firestone Tire and Rubber Co., 394 So.2d 572 (Fla. 5th DCA 1981). Questions regarding past convictions should not be asked unless the prosecutor has knowledge that the witness has been convicted of a crime and has the evidence necessary for impeachment if the witness fails to admit the number of convictions of such crimes. We agree with the First District Court of Appeal that the question, “Have you ever been convicted of a felony?” will cover crimes punishable by death or imprisonment in excess of one year. However, the second part of Section 90.610(1) presents a more difficult problem. A defendant may not know which crimes involve dishonesty or false statements and may open the door to disclosure of certain crimes by failing to acknowledge the number of such convictions or create the impression of a pattern of criminal conduct by including crimes not cognizable by Section 90.610(1). Therefore it may be appropriate for the trial court upon request of either counsel to instruct the witness out of the presence of the jury as to the types of crime which involve dishonesty or false statements. We hold that as a predicate to impeachment under Section 90.610(1), Florida Statutes (1979), two questions may be asked: “Have you ever been convicted of a felony?” and “Have you ever been convicted of a crime involving dishonesty or false statement?” Accordingly, the form of the prosecutor’s question was improper and this case must be remanded for a new trial.

Appellant also challenges the prosecutor’s comments regarding the price paid for repair of the appellant’s van and the state attorney’s policy regarding persons convicted of violent crimes. United States v. Ellis, 547 F.2d 863 (5th Cir. 1977) and United States v. Rodriguez, 585 F.2d 1234 (5th Cir. 1978) hold that it is improper for counsel to express personal opinions or to state facts of his own knowledge which are not in evidence. However, not every erroneous statement or expression of opinion requires a mistrial. In assessing the prejudicial impact of such assertions the court must consider the strength of the evidence against the defendant. Rodriguez, supra. Further, it is error to express belief in the credibility of a witness where doing so implies the prosecutor has additional knowledge about the case which has not been disclosed to the jury. Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975). The prosecutor attempted to bolster the credibility of her witness by making statements about the state attorney’s office policy regarding persons who commit violent crimes, and she attempted to impeach the defense witness by making statements about the amount paid for body work. Both comments were improper, but we need not determine the extent of their prejudicial effect on the jury since the questions regarding the appellant’s past convictions of crimes requires reversal and remand of this case for a new trial.

REVERSED and REMANDED for a new trial.

DOWNEY and BERANEK, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Clinton Howard TOMMIE, Dorothy L. Tommie, and Allstate Insurance Company, Petitioners, v. Reginald LaCHANCE, Jocelyn LaChance, the Estate of Stephen LaChance, deceased, through the Co-Administrators, Reginald LaChance and Jocelyn LaChance, Respondents.
    No. 81-1353.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.

      Jeanne Heyward, Miami, and Burdick & Donahoe, Fort Lauderdale, for petitioners.
    Sheldon J. Schlesinger of Simons & Schlesinger, P.A., Fort Lauderdale, for respondents.
   GLICKSTEIN, Judge.

Petitioners are the operator, owner and insurer of a motor vehicle that collided with a dirt bike on which two boys were riding, killing one, Stephen LaChance, and injuring the other, David Wilson. Stephen’s parents, as administrators of his estate, brought an action for wrongful death against petitioners, alleging that Stephen was a passenger on the dirt bike and David was the operator. Petitioners’ answer denied that Stephen was the passenger and raised the affirmative defense of comparative negligence.

David’s deposition was taken in the La-Chance action and he testified that he had gone to Stephen’s home on the date of the accident to buy the bike for $500. Prior to that time David had never driven nor ridden upon a motorcycle, nor had he ever driven a dirt bike. David only recollects having watched Stephen drive the dirt bike away from the LaChance home without him and then waking up in the hospital. He only recalls having seen trees along the side of the road down the avenue and next to Stephen’s block.

Through his mother, David brought an action against petitioners and the administrators of Stephen’s estate. He alleged he was the passenger of the dirt bike and Stephen its operator. Petitioners denied that David was the passenger and raised the affirmative defense of David’s negligence. Petitioners then moved to consolidate the LaChance and Wilson actions. The motion was denied and they filed this petition.

We said in Brody Construction, Inc. v. Fabri-Built Structures, Inc., 322 So.2d 61 (Fla. 4th DCA 1975) that the consolidation of actions ordinarily rests in the sound discretion of the trial court. In the present case, however, the trial court recites no reason or basis for entry of its order and the parties responded to our order that the hearing on the motion was unreported. As a result, we are unable to step into the shoes of the trial judge to attempt to determine his perception of what was presented to him.

What we do perceive, however, is the anomaly which denial of consolidation can cause if repugnant and inconsistent verdicts are reached in the two actions. It is possible two independent verdicts can find (1) neither boy or (2) both boys operated the dirt bike. Either possibility is unjust and can be prevented by consolidation. As petitioners point out with respect to the first possibility, and as we observe as to the second, if these anomalies occurred they would not become apparent until after the second judgment. By then the time for appeal of the first verdict long since may have expired.

With such possibilities, the trial court should have ordered consolidation. Failure to do so did not conform to the essential requirements of law and reasonably may cause material injury irremediable by plenary appeal. We, therefore, grant the writ of certiorari and quash the order denying consolidation.

LETTS, C. J., and BERANEK, J., concur.

      . In their answer petitioners sought to diminish any recovery by the degree of the decedent’s negligence and/or assumption of risk; these affirmative defenses have merged. Blackburn v. Dorta, 348 So.2d 287 (Fla.1977); Blaw-Knox Food & Chemical Equip. Corp. v. Holmes, 348 So.2d 604 (Fla. 4th DCA 1977).

      . David was not named as a defendant in the LaChance action.

      . Respondents have duly notified counsel in the Wilson action of the motion to consolidate, the order thereon, and all of the proceedings in this court.


text:
    Charles ROHLFING, Appellant, v. Stephen M. GOLDING, Appellee.
    No. 81-1399.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Michael N. Gomes of Michael N. Gomes, P.A., Pompano Beach, for appellant.
    Neil F. Garfield of Garfield & Blatt, P.A., Lauderhill, for appellee.
   PER CURIAM.

The order denying the appellant’s motion to vacate the default judgment is reversed on the authority of South Florida Vendorama, Inc. v. Colodny, 348 So.2d 1212 (Fla. 4th DCA 1977). Also see Kiaer v. Friendship, Inc., 376 So.2d 919 (Fla.3d DCA 1977).

DOWNEY, ANSTEAD and GLICK-STEIN, JJ., concur.


text:
    Eddie W. CRUMP, Appellant, v. STATE of Florida, Appellee.
    No. 81-1545.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.

      Eddie W. Crump, pro se.
    No appearance required of appellee.
   PER CURIAM.

A jury convicted appellant, Eddie W. Crump, of burglary; and he was sentenced to fifteen years imprisonment. After this court affirmed Crump’s conviction in Crump v. State, No. 78-2066 (Fla.4th DCA May 14, 1980), he filed a pro se motion pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion without holding an evidentiary hearing, attaching pertinent parts of the record or files, or specifically delineating the issues for this court. Crump appeals.

In his motion Crump alleged fifteen errors and all but one “were or could have been raised on direct appeal and therefore are foreclosed in this proceeding for collateral review. Adams v. State, 380 So.2d 423 (Fla.1980); Henry v. State, 377 So.2d 692 (Fla.1979); Sullivan v. State, 372 So.2d 938 (Fla.1979).” Meeks v. State, 382 So.2d 673, 675 (Fla.1980). Although the remaining allegation, ineffective assistance of counsel at trial and on appeal, is subject to our review, it is legally insufficient under Knight v. State, 394 So.2d 997 (Fla.1981). Since we affirm on matters of law, there is no need to remand for the attachments of files or records as required by Rule 3.850. Edwards v. State, 364 So.2d 119 (Fla. 1st DCA 1978).

AFFIRMED.

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

      . See Committee Note, 34 Fla.Stat.Ann. 133 (Supp.1982).

      . Jones v. State, 384 So.2d 736, 737 (Fla.4th DCA 1980).


text:
    ARKANSAS GLASS CONTAINER CORPORATION, a foreign corporation, Appellant, v. Leroy HACKETT and Patricia Hackett, his wife, Glens Falls Insurance Co., Riekes Container Company, Liberty Mutual Insurance Company and Alco Container Company of Tampa, Appellees.
    Nos. 81-1684, 81-1969.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    David A. Danielson of Brennan, McAliley, Hayskar & McAliley, P. A., West Palm Beach, for appellant.
    Michael K. Sullivan of Hamilton, James, Merkle & Young, West Palm Beach, for appellees Leroy Hackett and Patricia Hack-ett.
    R. Fred Lewis of Magill, Reid, Kuvin & Lewis, Miami, for appellees Riekes Container Co., Liberty Mut. Ins. Co. and Aleo Container Co. of Tampa.
   PER CURIAM.

AFFIRMED. We agree with the trial court’s determination that the appellant’s sales activities in Florida were sufficient to render appellant amenable to the court’s jurisdiction under the provisions of Section 48.193(f)(2), Florida Statutes (1979). See generally, Ford Motor Co. v. Atwood Vacuum Machine Co., 392 So.2d 1305 (Fla.1981).

ANSTEAD, DELL and WALDEN, JJ., concur.