author: FERGUSON, Judge. PER CURIAM. DANIEL S. PEARSON, Judge,

text:
    James M. WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-932.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    Rehearing Denied Sept. 21, 1981.
    Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender and William Liston, Legal Intern, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

James Melvin Williams appeals from a conviction of second degree murder claiming as error denial of his pre-trial motion to suppress certain evidence found in his apartment by police officers acting without a warrant or consent. The controlling question on review is whether exigent circumstances exist which justify a warrant-less entry into a home.

The facts are uncontested. On September 9, 1978, Milton Noble was shot in the back and fell unconscious in the street. Police officers Odell Jolly and Bobby Meeks arrived at the scene approximately ten minutes after the shooting. The officers were told by bystanders that Williams had shot Noble and were given the address of the apartment building where Williams lived. The officers reached Williams’ residence about ten to fifteen minutes after first arriving at the scene of the shooting. A person sitting on the porch of the apartment building told the officers that he had seen Williams enter the building a few minutes ago. Another person inside the building and down the hall from Williams’ apartment told the officers he had seen Williams enter a short while ago but did not see him exit. The officers knocked on the door to Williams’ apartment and shouted, “Police, open up.” The officers had their guns drawn because they believed Williams to be armed. After repeating the knocks and statement about three times and receiving no answer, the officers broke through the door. The officers did not find Williams but did see the barrel of a gun in plain view.

It is well-settled that warrantless searches by police officers are per se “unreasonable” under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution, subject to certain specifically established and well-delineated exceptions. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Hornblower v. State, 351 So.2d 716 (Fla.1977). A showing of exigent circumstances is implicitly required before such an exception will be applied. Pomerantz v. State, 372 So.2d 104 (Fla.3d DCA 1979).

In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the United States Supreme Court held that a war-rantless nonconsensual entry into a house for the purpose of making a routine felony arrest is a violation of the Fourth Amendment of the United States Constitution absent exigent circumstances justifying such entry. In so holding the Court specifically stated that it would use the principles for determining the validity of a search without a warrant in determining the validity of an arrest without a warrant.

Florida has long recognized the particular sanctity of the home and enacted Section 901.19(1), Florida Statutes (1939), the knock and announce law, to protect this interest. Florida courts require that Section 901.19(1) be strictly adhered to. Earman v. State, 265 So.2d 695 (Fla.1972); Hurt v. State, 388 So.2d 281 (Fla.lst DCA 1980); Moreno v. State, 277 So.2d 81 (Fla.3d DCA 1973). Only under certain limited exceptions may an officer enter a residence to effect an arrest without complying with Section 901.-19(1). Raffield v. State, 351 So.2d 945 (Fla.1977); Benefield v. State, 160 So.2d 706 (Fla.1964).

Because the officers failed to announce their purpose, they did not comply with Section 901.19(1). Moreno, supra. Increase of an officer’s peril had he demanded entry and stated his purpose, however, is a recognized exception to Section 901.19(1). See note 1, supra. Under Payton, supra, and Pomerantz, supra, this exception is valid under the United States Constitution and Florida Constitution, only if it also meets the test of exigent circumstances.

Other jurisdictions have determined that under certain circumstances peril to an officer, coupled with likelihood of the suspect’s escape are exigent circumstances permitting entry without a warrant.

In Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 298, 87 S.Ct. 1642, 1645, 18 L.Ed.2d 782, 787 (1967), the United States Supreme Court stated:

We agree with the Court of Appeals that neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, the exigencies of the situation made that course imperative. “The police were informed that an armed robbery had taken place and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given, and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that police had control of all weapons which could be used against them or to effect an escape.”

In United States v. Stubblefield, 621 F.2d 980, 982 (9th Cir. 1980) involving armed bankrobbery, the court stated that “the combination of hot pursuit and possibility that the unapprehended participant in the robbery remained within the house supplied sufficient exigent circumstances to justify police officers entering the house. . . . ”

In Weddle v. State, 621 P.2d 231 (Wy.1980) a rape victim escaped from a trailer and ran for help. A neighbor found her and immediately called the police. After interviewing the victim, the officer entered the trailer without a warrant. The court stated: “Generally, if there is a reasonable possibility of injury or death if the entry is not made, or if there is a likelihood that the suspect will escape if the entry is not made, ‘exigent circumstances’ exist.” Id. at 240.

In State v. Ferguson, 119 Ariz. 55, 579 P.2d 559 (1978) the court found exigent circumstances where the person sought to be arrested was believed to be armed and dangerous, his whereabouts had been just established, he had been previously on the move, and his apprehension appeared difficult and dangerous.

In State v. Campbell, 15 Wash.App. 98, 547 P.2d 295 (1976), the court found exigent circumstances excusing compliance with a knock and announce statute where police listened to an eyewitness account as soon as they arrived on the scene and discovered an apparently unoccupied apartment with a wide open door. The court stated, “An announcement prior to entry could have increased the danger to the officer. . . [and] alerting a perpetrator hiding within the apartment to the presence of the police would only have aided a possible escape.” Id. 15 Wash.App. 98, 547 P.2d at 298-99.

Although there is no Florida case directly on point, Florida courts recognize that peril to an officer and likelihood of escape may justify a warrantless entry into a home. In State v. Moyer, 394 So.2d 433 (Fla.2d DCA 1980), the court held that exigent circumstances exist where officers have reasonable fear of destruction of evidence and are informed that the suspect will leave in fifteen minutes. The critical factor in Moyer, supra, is the length of time which elapsed from the time probable cause vested until the warrantless search. Id. at 435, citing Hornblower v. State, 351 So.2d 716, 717 (Fla.1977) (forty-five minutes too long) and Wilson v. State, 363 So.2d 1146 (Fla.2d DCA 1978) (six hours too long).

Where, as here, police officers arrive at a suspect’s apartment within twenty to thirty minutes after a shooting and within fifteen minutes after obtaining probable cause to believe suspect did the shooting and are informed that the suspect is within the room, reasonably believe they are in peril because the suspect is armed and dangerous and, in addition, there is a strong likelihood that the suspect will escape if they do not take immediate action, we find exigent circumstances exist. Because we find the officers’ entry was not illegal under the United States and Florida Constitutions, we hold the trial court correctly denied Williams’ pretrial motion to suppress.

As a second issue on appeal Williams challenges admitting into evidence a prior consistent statement of the state’s eyewitness. We find the statement admissible under Section 90.801(2)(b), Florida Statutes (1978) and Van Gallon v. State, 50 So.2d 882 (Fla.1951).

Williams also challenges the sentence of fifteen years probation upon condition that he serve eight years in the state penitentiary. We reverse on the authority of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980), holding that incarceration which exceeds one year is unlawful as a condition of probation. See also Gonzalez v. State, 392 So.2d 334 (Fla.3d DCA 1981); Rodriguez v. State, 390 So.2d 143 (Fla.3d DCA 1980).

Affirmed in part, reversed in part and remanded for sentencing.

ON MOTION FOR REHEARING

PER CURIAM.

Counsel for appellant having filed in this cause motion for rehearing, and same having been considered by the court which determined the cause, it is ordered that said motion be and it is hereby denied.

DANIEL S. PEARSON, Judge,

specially concurring.

The State has moved this court for a rehearing. Its petition does not challenge the outcome of the case, but rather asserts that our opinion unnecessarily declares, or at least might be read to mean, that Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), is retroactive.

Because a complaint about dicta in an opinion is not a basis for rehearing, Christy v. Burch, 25 Fla. 978, 6 So. 857 (1890), I concur in the decision to deny rehearing.

Our discussion of Payton is quite clearly dicta, since our decision is bottomed on the fact that the arrest of the defendant in his home was not a routine felony arrest, upon which Payton turns, but rather one justified by exigent circumstances. However, I agree with the State’s concern that dicta has a way of becoming law. I suppose this would be of less concern to the State if it agreed with the dicta that Payton is retroactive, but it does not. While I share the State’s doubt about Payton’s retroactivity, I am presently more concerned that our opinion cites to Busch v. State, 392 So.2d 272 (Fla. 1st DCA 1980), cert. denied, - U.S. -, 101 S.Ct. 3040, 69 L.Ed.2d 412 (1981), as authority.

We say in footnote 2, with seeming approval, that Florida courts have held that Payton is to be given retroactive effect. There can be no doubt that Busch holds Payton retroactive, but the rationale of that holding in Busch v. State, supra, is, in my view, wrong. In Busch, the district court concluded that the United States Supreme Court intended Payton to be applied retroactively simply because the Supreme Court vacated and remanded Payton’s case for further consideration. I do not share the Busch view that when the United States Supreme Court remands a case for further consideration in light of a newly announced rule pertaining to the lawfulness of arrests or seizures under the Fourth Amendment, that means that the newly announced decision is to be applied retroactively.

In United States v. Bowen, 462 F.2d 347 (9th Cir. 1972), the court affirmed Bowen’s conviction, and Bowen petitioned the United States Supreme Court for certiorari. While his petition was pending, the United States Supreme Court decided Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), invalidating a search conducted by a border patrol agent some twenty-five miles from the border. Thereafter, it vacated the judgment in Bowen and remanded the case to the Ninth Circuit “for further consideration in light of Almeida-Sanchez.” On remand, the Ninth Circuit affirmed Bowen’s conviction, holding that Almeida-Sanchez should not be retroactively applied to searches which occurred before that decision. United States v. Bowen, 500 F.2d 960 (9th Cir. 1974). Bowen again petitioned the United States Supreme Court for a grant of certiorari, but that Court affirmed the Ninth Circuit. Bowen v. United States, 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641 (1975). This action must mean that the United States Supreme Court does not view its own remand for further consideration in light of a newly announced decision as deciding the retroac-tivity of that decision.

In United States v. Miller, 492 F.2d 37 (5th Cir. 1974), the Fifth Circuit addressed another Supreme Court “remand for further consideration in light of Almeida-Sanchez.” Miller contended that the Supreme Court’s remand meant that its decision in Almeida-Sanchez was to be given retrospective application. The Fifth Circuit disagreed:

“We take it that, had this been the court’s desire, certiorari could have been granted and this case summarily reversed on the authority of Almeida-Sanchez, rather than being remanded for further consideration.” 492 F.2d at 40.

See also Chapman v. United States, 547 F.2d 1240 (5th Cir. 1977) (in which the court viewed the Supreme Court’s remand to a court of appeals “for reconsideration in light of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976),” as including the possibility that the remand was precisely for the purpose of allowing the court of appeals to consider the retroactivity question); People v. Graham, 76 App.Div.2d 228, 431 N.Y.S.2d 209 (1980).

It appears, then, that summary orders of the United States Supreme Court which remand for reconsideration in light of new exclusionary rule decisions are not to be taken as an expression of the Supreme Court’s view on retroactivity. State v. Carpentieri, 82 N.J. 546, 414 A.2d 966 (1980). The issue of whether Payton is or is not retroactive must be decided under the appropriate analysis, see, e.g., United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975); Kaiser v. New York, 394 U.S. 280, 89 S.Ct. 1044, 22 L.Ed.2d 274 (1969); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968), not the one made in Busch.

      . The exceptions listed in Benefield, supra, are: (1) where the person within already knows of the officer’s authority and purpose; (2) where the officers are justified in the belief that the persons within are in imminent peril of bodily harm; (3) if the officer’s peril would have been increased had he demanded entrance and stated the purpose, or (4) where those within are made aware of the presence of someone outside are then engaged in activities which justify the officers in the belief that an escape or destruction of evidence is being attempted. Id. 160 So.2d at 710.

      . The case cited by the State, People v. Graham, 69 A.D.2d 544, 419 N.Y.S.2d 290 (1979), affirmed, 76 A.D.2d 228, 431 N.Y.S.2d 209 (1980) is not helpful. The court in Graham did not determine whether exigent circumstance existed and on appeal determined that Payton, supra, should not be given retroactive application. Florida courts have held that Payton will be given retroactive application. Brown v. State, 393 So.2d 280 (Fla.1st DCA 1980) (no exigent circumstances in arrest pursuant to drug bust); Busch v. State, 392 So.2d 111 (Fla.1st DCA 1980) (no exigent circumstances where robbery suspect implicated by another). See also Engle v. State, 391 So.2d 245 (Fla.5th DCA 1980) (no exigent circumstances where maid informs police of weapons in guest’s room).

      . See, e. g., State v. Coyle, 95 Wash.2d 1, 621 P.2d 1256 (Wash.1980) requiring more than “mere possibility of escape” absent peril to officers.

      . The following cases make no explicit finding of exigent circumstances but upheld warrant-less entry; State v. Perez, 277 So.2d 778 (Fla.1973), cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 468 (1973); State v. Bell, 249 So.2d 748 (Fla.4th DCA 1971) (peril to officer who believed felony was being committed in business district at 3:00 a. m.).

      . We are troubled by the dicta of the Florida Supreme Court in Hornblower, supra, 351 So.2d at 718:
      The “emergency exception” permits police to enter and investigate private premises to preserve life, property, or render first aid, provided they do not enter with an accompanying intent either to arrest or search.... Again, the need to act expeditiously is essential.
      We understand the critical factor in Hornblower, supra, however, to be the need to act expeditiously in making an arrest or search. Accord, Moyer, supra.

      . See People v. Graham, 76 App.Div.2d 228, 431 N.Y.S.2d 209 (1980) (holding, under a traditional analysis, that Payton is not retroactive). While I share the doubt, this case, as I have said, presents no occasion to decide the issue.

      . Our opinion also cites to Brown v. State, 392 So.2d 280 (Fla. 1st DCA 1980), which relies on Busch and requires no separate discussion.

      . As noted previously, the United States Supreme Court denied the State’s petition for certiorari in Busch v. State, supra. A denial of certiorari neither approves nor disapproves the decision sought to be reviewed. Hughes Tool Company v. Trans World Airlines, Inc., 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973). I fully recognize that a state court is free to make Payton retroactive and extend to its citizens greater rights than may be required by the United States Supreme Court. See Norman v. State, 388 So.2d 613 (Fla.3d DCA 1980). All I have said is that the United States Supreme Court has not decided the retroactivity vel non of Payton, and inasmuch as the First District’s decision in Busch says the Supreme Court has, Busch is wrong.


source: Caselaw Access Project

author: PER CURIAM. PER CURIAM.

license: Public Domain

text:
    Edward SPURLOCK, Appellant, v. STATE of Florida, Appellee.
    No. UU-389.
    District Court of Appeal of Florida, First District.
    April 6, 1981.
    On Rehearing June 22, 1981.
    On Motion to Affirm Sept. 17, 1981.
    Michael Allen, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   PER CURIAM.

REVERSED and remanded for new trial. Tascano v. State, 393 So.2d 540 (Fla.1980).

McCORD, ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Our opinion reversing and remanding this cause for a new trial was predicated upon a motion of appellant to reverse, which alleged that appellant’s request for a jury instruction on penalties had been properly preserved for appeal. The state in its response contended otherwise. Appellee in its motion for rehearing contends that our opinion reversing this cause and thereby ruling that the question was preserved for review conflicts with this Court’s opinion (by another panel of this Court) in Washington v. State, 392 So.2d 599 (Fla. 1st DCA 1981). The records of the two cases in relation to the question of whether or not the request for instructions was preserved for review are quite similar, and we have reconsidered our ruling sub judice. Here, the court, rather than defense counsel, Mr. Bodiford, brought up the question of penalty instructions as follows: “Do you request the court to give the penalty section to each of these crimes?” To which Mr. Bodiford responded: “Yes, sir.” Then the following colloquy ensued:

THE COURT: That motion is denied on the grounds it is contradictory to the other charge of the court to the jury about the consequences of their vérdict. The penalty should not enter into their verdict at all. Therefore, I refuse to give the instruction on penalty following that great jurist by the name of Hugh M. Taylor, who also refused to give penalty and thus changed the law.
Are there any objections to the charges to be given or any request for additional charges?
MR. PAULK: None from the state, Your Honor.
MR. BODIFORD: None from the defendant, Your Honor.
THE COURT: Other than what the court indicated about penalty.

Florida Rule of Criminal Procedure 3.390(d) provides:

No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the presence of the jury.

Not only did defendant not state the grounds for his request for the jury instructions, but when asked by the trial court if he had any objections, he stated that he had none. While the court added “other than what the court indicated about penalty,” that statement is meaningless because the record shows that appellant made no objection. We, therefore, rule on rehearing that the question was not preserved for appeal.

Our previous reversal and remand is vacated, and appellant’s motion to reverse and remand for a new trial is denied. This appeal shall proceed in accordance with the Florida Appellate Rules.

McCORD, ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.


author: PER CURIAM.

text:
    William Fred REID, Appellant, v. The STATE of Florida, Appellee.
    No. 79-96.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Bennett H. Brummer, Public Defender and Julian S. Mack, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed on the authority of Hudson v. State, 368 So.2d 437 (Fla.3d DCA 1979), cert. denied, 381 So.2d 767 (Fla.1980).


author: DANAHY, Judge.

text:
    Kenneth Lesley CONNELL, a minor, by and through his mother and next friend, Nancy Connell; and Nancy Connell, individually, Appellants and Cross-Appellees, v. Raeburn Croome DuBOSE, Sr.; Donlen Leasing Corp.; AMF, Inc., and Firemen’s Fund Insurance Co., Appellees and Cross-Appellants.
    No. 80-183.
    District Court of Appeal of Florida, Second District.
    May 27, 1981.
    Rehearing Denied July 8, 1981.

      Joel D. Eaton of Podhurst, Orseck & Parks, Miami and Simons & Schlesinger, Fort Lauderdale, for appellants and cross-appellees.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellees and cross-appellants.
   DANAHY, Judge.

The plaintiffs in this personal injury suit appeal from an order granting a new trial on the issue of damages only. The defendants cross-appeal, asserting that a new trial should have been granted on the issue of liability as well. We reverse as to the appeal and affirm as to the cross-appeal.

The plaintiffs are a minor, Kenny Con-nell, and his mother. They brought this suit to recover damages for personal injuries sustained by Kenny when his bicycle was struck by defendant DuBose’s automobile. Prior to the accident, Kenny was a healthy 8-year old boy of average intelligence and skills. His injuries included severe and permanent brain damage. As a result, Kenny is both mentally and physically handicapped. He has and .will have severe emotional problems by reason of these handicaps. There was expert testimony that Kenny’s optimum academic level is that of a 5th grade student. His prospects for future employment are poor. He will require special education, continued medication until at least the age of twenty-one, and psychological help.

The jury returned a verdict finding defendant DuBose 55% at fault in the accident. The jury assessed Kenny’s damages at $1,750,000 and his mother’s damages at $250,000. After lengthy and careful deliberation, the trial judge determined that a new trial should be granted on the issue of damages. He entered an order explaining his reasons, as required by Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla. 1978). The defendants argue that the trial judge’s decision was a discretionary act to be tested by the standard of reasonableness set forth in Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), which is applicable to the discretionary granting of a new trial. Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla. 1980).

The language of the new trial order, however, shows clearly that the cornerstone of the trial judge’s decision was his opinion that the award of damages to Kenny’s mother was excessive because unsupported by the evidence. We agree with our sister court of the first district that the standard of reasonableness applicable to a discretionary judicial act is inappropriate in such a situation. Hope v. Louisville & N. R. Co., 389 So.2d 675 (Fla. 1st DCA 1980).

We agree with the plaintiffs that there was evidence in the record to support the jury’s award to Mrs. Connell and that it was not so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate. Bould v. Touchette, 349 So.2d 1181 (Fla. 1977). The defendants have not persuaded us that a new trial should otherwise have been granted. Accordingly, we reverse the order granting a new trial and remand with directions that final judgment be entered in accordance with the verdict.

REVERSED AND REMANDED.

RYDER and CAMPBELL, JJ., concur.

      . The accident occurred prior to July 1, 1977, so that section 768.043, Florida Statutes (1979), is not applicable to the granting of a new trial in this case on the issue of damages. Ch. 77-468, § 45, Laws of Florida.


text:
    Eula DANIEL, Appellant, v. ORANGE STATE LIFE INSURANCE COMPANY, Appellee.
    No. 80-1160.
    District Court of Appeal of Florida, Second District.
    July 8, 1981.
    Rehearing Denied Sept. 17, 1981.
    Lex Taylor, Lakeland, for appellant.
    Ronald N. Toward, Law Offices of Clifford J. Schott, Lakeland, for appellee.
   DANAHY, Judge.

Appellant challenges a summary final judgment against her in her effort to obtain insurance benefits under policies of medical insurance issued by appellee. She argues that there is a genuine issue of fact as to whether the condition for which she incurred medical and hospital expenses had manifested itself prior to the effective date of the policies. We agree, and reverse.

Both policies of insurance issued by ap-pellee define “sickness” as a condition first manifested after the effective date of the policy and while the policy is in force. The effective date of coverage was March 28, 1979. It is undisputed that on that date and for almost a year previously, appellant had been experiencing increased menstrual flow which had become quite frequent and heavy; however, appellant, who was forty years of age, thought her menstrual periods to be regular and the change possibly caused by the fact that she had changed jobs and was doing different work.

About twelve days after the effective date of the policies, appellant made an appointment with Dr. Richard O’Leary, a specialist in obstetrics and gynecology. She said she went for a check-up and a Pap test, but Dr. O’Leary thought she consulted him specifically about her heavy menstrual bleeding. Dr. O’Leary conceded that this condition, known medically as menorrhagia, could have been hormonal bleeding in a woman of appellant’s age group.

On the basis of his examination and tests, Dr. O’Leary prescribed diagnostic procedures, which were performed and led to the discovery of a tumor later removed by surgery. Appellee denied coverage for the expenses thus incurred by appellant on the ground that the tumor had manifested itself prior to the effective date of coverage by the heavy and frequent menstrual flow. The trial judge agreed with appellee as a matter of law. We think that the question is one which should be determined by a jury in the light of all the circumstances of this particular case.

REVERSED AND REMANDED for further proceedings not inconsistent with this opinion.

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


author: RYDER, Judge.

text:
    Rhonda ENGLISH, Appellant, v. The FLORIDA STATE BOARD OF REGENTS, Appellee.
    No. 80-1337.
    District Court of Appeal of Florida, Second District.
    July 8, 1981.
    Rehearing Denied Sept. 16, 1981.
    Wagner, Cunningham, Vaughan & McLaughlin, P. A., Tampa and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P. A., Miami, for appellant.
    Raymond T. Elligett, Jr., William A. Gil-len, Jr., and David R. Tyrrell of Shackle-ford, Farrior, Stallings & Evans, P. A., Tampa, for appellee.
   RYDER, Judge.

Rhonda English appeals from a directed verdict adverse to her claim for personal injuries arguing that she presented sufficient evidence to create a jury question on the issue of liability. We agree and reverse.

Appellant brought suit against the Board of Regents alleging that the Board was negligent in its failure to maintain stairs in a reasonably safe manner and its failure to warn her of an unreasonably slippery surface of the stairs resulting in her slip and fall.

The evidence showed that the referenced stairway at the University of South Florida was constructed in August 1961. The stairs were made of slate which is smoother and, when wet, more slippery than concrete. Although in good structural condition, in good repair and equipped with handrails, the stairs were the only slate stairs on campus which were uncovered and exposed to the elements. The stairs had a slight pitch and water accumulated on them when it rained.

A short time prior to the fall, the University had applied an etching liquid to the slate steps as an experiment to roughen up the surface. Other methods to reduce slipperiness had been used in other places, but the University considered these methods expensive and unnecessary on the slate stairs. Although warning signs had been put on other areas of the campus, the University’s director of safety testified that no sign warning of the slippery condition was posted at the questioned stairway because he felt it was unnecessary.

Appellant began classes in the building in the spring of 1977 and had used the stairs only a few weeks before her fall. She could not remember traversing the stairs prior to her fall when they were wet. At the time of her fall, she was stepping slowly upon the stairs but not utilizing an available handrail. Another student, David Marrow, testified that the slate stairs were slippery when wet and that he had to be more cautious in using them than he did in using any other stairs on campus.

The trial court reserved ruling on appel-lee’s motion for directed verdict until after the jury returned, then granted the motion. We hold that the trial judge invaded the province of the jury in deciding that there was no duty to warn appellant below. It is peculiarly a jury function to determine what precautions are reasonably required in the exercise of a particular duty. Ten Associates v. McCutchen, 398 So.2d 860 (Fla.3d DCA 1981). What is and what is not negligence in a particular case is generally a question for the jury and not for the court. Acme Electric, Inc. v. Travis, 218 So.2d 788 (Fla. 1st DCA 1969).

The judgment below is REVERSED and the case REMANDED for reinstatement of the jury verdict with interest from the date entered.

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


author: SCHEB, Chief Judge.

text:
    Michael J. KINNEY and Margaret A. Kinney, Appellants, v. ALLIED HOME BUILDERS, INC., a Florida corporation, Appellee.
    No. 80-2088.
    District Court of Appeal of Florida, Second District.
    July 8, 1981.
    Rehearing Denied Aug. 21, 1981.

      Charles J. Cheves of Cheves & Rapkin, Venice, for appellants.
    R. Earl Warren, Englewood, for appellee.
   SCHEB, Chief Judge.

Michael J. and Margaret A. Kinney challenge a final judgment awarding Allied Home Builders, Inc., an equitable lien on undisbursed mortgage loan proceeds.

Dr. and Mrs. Kinney contracted with Allied to build them a residence on their land. The Kinneys obtained their construction financing from Coast Federal Savings & Loan Association. During construction a dispute arose between Allied and the Kin-neys over “extra charges.” As a result, the Kinneys refused to authorize Coast Federal to pay Allied the final draw on the loan proceeds. Allied then filed a claim of lien against their property, and the Kinneys, in turn, filed a suit against Allied contending that its claim of lien was a willfully exaggerated one. Allied answered the complaint, but it did not seek any affirmative relief against the Kinneys, their land or the undisbursed loan proceeds remaining with Coast Federal. The litigation terminated with a final judgment in favor of Allied. Subsequently, Allied filed a new suit seeking to foreclose its claim of lien. The court entered a summary final judgment in favor of the Kinneys in the second suit on the ground that Allied’s failure to have filed a counterclaim in the initial litigation barred it from recovery against the Kinneys.

Allied next proceeded to file the present suit seeking an equitable lien on the remaining undisbursed loan proceeds. The court awarded Allied a judgment and directed that the undisbursed sums, then deposited in the registry of the court, be paid to Allied. This appeal by the Kinneys ensued.

Although Allied sought in this litigation to impose an equitable lien on the construction loan proceeds, the Kinneys urge that in reality Allied’s claim is an action for sums due under the construction contract. Consequently, they argue, Allied’s claim is barred as it was the subject of a compulsory counterclaim in the exaggerated lien-claim action. Allied, on the other hand, contends that the gist of its action is to reach the loan proceeds disbursed under a separate agreement. This present litigation, Allied says, concerns Coast Federal’s security interest and involves issues unrelated to those in the initial action. Further, it points out that Coast Federal was not a party in the litigation between it and the Kinneys. Thus, Allied argues that its attempt to enforce an equitable lien against the construction loan proceeds was not a compulsory counterclaim in the prior litigation. We agree with the Kinneys and reverse.

Florida Rule of Civil Procedure 1.170(a) states:

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction ....

A compulsory counterclaim arises from the transaction or occurrence that is the subject matter of the opposing party’s cause of action. Unless filed in that action it will be waived and any subsequent action based on it will be barred. Lawyers Title Insurance Corp. v. Little River Bank & Trust Co., 228 So.2d 412 (Fla.3d DCA 1969), cert. discharged, 238 So.2d 846 (Fla.1970).

Counsel has not cited any Florida cases directly in point and our research fails to reveal any. However, courts and the textwriters tend to take a liberal view toward Federal Rule of Civil Procedure 13(a), the prototype of Rule 1.170(a), in determining whether a counterclaim is compulsory. The basic rationale, of course, is to avoid a multiplicity of suits. 3 Moore’s Federal Practice, ¶ 13.13 (1980), 6 C. Wright & A. Miller, Federal Practice and Procedure, § 1410 (1971).

The fundamental question here is whether Allied’s claim against the undisbursed proceeds from the construction loan arose out of the transaction originally litigated between the Kinneys and Allied in respect to the construction of their home. As the Kinneys note, the facts pled in the instant suit concern matters that were existing at the time of the original litigation, except for the fact that the undisbursed lien proceeds have since been interpleaded. The contest is simply one between the Kinneys and Allied, and ultimately the funds in dispute will be paid either to the Kinneys, as borrowers, or to Allied, as their builder. Even though Allied argues that this controversy involves a security interest of Coast Federal, no one suggests that Coast Federal, as mortgagee, would have any entitlement to these proceeds.

Further, there is no merit to the contention that the counterclaim was not compulsory because Coast Federal was not a party defendant in the prior litigation. Coast Federal is a financial institution within the jurisdiction of the trial court. Rule 1.170(a) states that a claim is compulsory so long as it “does not require for its adjudication the presence of third parties over which the court cannot acquire jurisdiction.” This clearly implies that where, as here, jurisdiction could have been obtained over Coast Federal, Allied’s failure to join it as a party does not excuse it from the requirement of having failed to assert its claim in the initial litigation between the parties. See 6 C. Wright & A. Miller, Federal Practice and Procedure, § 1411 (1971).

Accordingly, we vacate the judgment in favor of Allied and remand to the trial court with directions to enter judgment in favor of the Kinneys.

REVERSED.

GRIMES and RYDER, JJ., concur.

      . We address only the issue presented by Count VIII, as all other issues have been adjudicated in favor of the Kinneys.

      . Coast Federal disclaimed any interest in the remaining construction loan funds and after paying those funds into the registry of the court was dismissed as a defendant in this suit.


text:
    Oliver Carl PITT, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2061.
    District Court of Appeal of Florida, Third District.
    July 14, 1981.
    Rehearing Denied Sept. 30, 1981.

      Paul Morris; Carl H. Lida, Miami, for appellant.
    Jim Smith, Atty. Gen., and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

The appellant’s judgment of conviction for possession of marijuana is reversed on the reasoning and authority in Young v. State, 394 So.2d 525 (Fla.3d DCA 1981).

Reversed.


text:
    Russell H. POTTS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1854.
    District Court of Appeal of Florida, Second District.
    July 29, 1981.
    Rehearing Denied Sept. 17, 1981.

      Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

One Ramirez burglarized a Clearwater car dealer. In the process, Ramirez placed his hand on the shoulder of one of the employees of the business and guided him to the men’s room, telling him to remain there and he would not be hurt.

Ramirez and appellant were charged with first degree burglary, i. e., a burglary during which an assault occurs. The state contended that appellant had transported Ramirez to the scene of the crime, stood by in the vicinity until summoned by Ramirez via walkie-talkie radio, and then picked him up for the getaway.

In a separate trial, Ramirez was found guilty of simple (third degree) burglary. Appellant was then tried, found guilty as charged, and sentenced to thirty years in prison.

Appellant first contends that he could be convicted of no offense greater than that of which his confederate was found guilty. He relies upon Turner v. State, 369 So.2d 670 (Fla. 1st DCA 1979), which held that one could not be convicted on a charge that he “did aid, abet, counsel or otherwise procure” the commission of a felony by another when the person he was charged with aiding had already been acquitted of the felony. Our case differs from Turner only in the fact that the state charged appellant in language indicating that he personally committed the burglary and the assault. Yet, the information referred to the statute on principals in the first degree, section 777.011, Florida Statutes (1977), and the record reflects that appellant’s involvement was limited to participation in the planning of the crime and the transportation of his confederate to and from the building which was burglarized. Thus appellant’s conviction as a principal could only be predicated upon his participation as an aider and abettor.

Turner notwithstanding, we are compelled to reject appellant’s contention on this point. At common law an accessory before the fact could not be convicted without the prior conviction of the primary offender. Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). However, an aider and abettor, traditionally known as a principal of the second degree, could be convicted notwithstanding the prior acquittal of the first degree principal. Id. The enactment of the statute on principals had the effect of combining accessories before the fact and principals in the first and second degree into the same category. Blackburn v. State, 314 So.2d 634 (Fla. 4th DCA 1975), cert. denied, 334 So.2d 603 (Fla.), cert. denied, 429 U.S. 864, 97 S.Ct. 170, 50 L.Ed.2d 142 (1976). Under the statute, the acquittal of the primary offender does not bar the conviction of an aider .and abettor. Butts v. State, 286 So.2d 28 (Fla.2d DCA 1973).

The court in Turner stressed the fact that the words “and such offense is committed or is attempted to be committed” had been added to the statute in 1974. These words add little. The federal statute on principals does not contain such words; yet in order to convict an aider and abettor under federal law there must be proof of a completed crime. United States v. Alvarez, 610 F.2d 1250, rev’d on other grounds on rehearing en banc, 625 F.2d 1196 (5th Cir. 1980). We cannot quarrel with the premise that in order to convict appellant as a principal of the crime charged, the state had to show that his confederate burglarized a building and committed an assault therein. However, the fact that appellant’s confederate was convicted of only simple burglary in another trial does not diminish the fact that there is proof in this record that appellant’s confederate did commit a burglary and an assault. Thus, we cannot construe the 1974 amendment to the statute to mean that the confederate’s conviction is a prerequisite to appellant’s guilt as a principal.

To the extent that the Turner decision may rest upon the principle of estoppel, the United States Supreme Court’s recent decision in Standefer has substantially weakened its foundation. In that case, the Court reviewed a conviction of aiding and abetting an internal revenue agent in accepting unauthorized compensation. Because the agent had previously been acquitted of accepting such compensation, the defendant contended that he could not be convicted for aiding and abetting in the commission of that crime. The Court held that since the federal statute made an aider and abettor a principal, the fate of the revenue agent was irrelevant, rejecting the defendant’s argument that the government should be estopped from relitigating the determination that the agent had not accepted illegal compensation. It gave several illustrations of why a person might be acquitted which would have nothing to do with whether his aider and abettor could be found guilty. In affirming the conviction, it concluded that consistency in jury verdicts was not legally required. Insofar as federal law is concerned, Standefer squarely holds that the doctrine of “nonmutual collateral estoppel” cannot be extended fairly from civil cases, where it originated, to criminal cases because (1) an acquittal can result from many factors other than guilt or innocence and (2) there is no procedure for retrying an acquitted defendant where the verdict was clearly error or against the weight of evidence. It is clear that in federal courts the bar of collateral estoppel is constitutionally compelled only when the same defendant is involved in both trials. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); United States v. Hatrak, 588 F.2d 414 (3d Cir. 1978).

We note that California has applied the doctrine of collateral estoppel to preclude prosecution of an aider and abettor following his confederate’s acquittal. People v. Taylor, 12 Cal.3d 686, 527 P.2d 622, 117 Cal.Rptr. 70 (1974). However, while mutuality has not been a requirement of collateral estoppel in California civil law for some time, it remains a prerequisite of collateral estoppel in Florida. Compare Bernhard v. Bank of America National Trust & Savings Association, 19 Cal.2d 807, 122 P.2d 892 (1942), with Seaboard Coast Line Railroad Co. v. Cox, 338 So.2d 190 (Fla.1976). In the final analysis, the acquittal of appellant’s confederate of the assault has no bearing on the disposition of the charge against appellant.

We find, however, that there is merit in appellant’s contention that the trial court erred in allowing the state rebuttal witnesses to testify without their names being disclosed pursuant to Florida Rule of Criminal Procedure 3.220(a)(1)(i).

In the course of appellant’s trial the state called three rebuttal witnesses after appellant had testified in his own defense. Appellant immediately objected to the testimony of each of these three witnesses on the ground, among others, that they had not been included on the state’s list of witnesses furnished pursuant to his discovery demand. The trial court was of the opinion that the state need not disclose rebuttal witnesses. Accordingly, appellant’s objection was overruled without any inquiry as to whether or not such failure prejudiced the appellant in his defense. Appellant’s request to recess and depose or interview the witnesses was denied and they were permitted to testify. Their testimony contradicted appellant’s testimony in various material particulars.

Rebuttal witnesses are not an exception to the requirements of Florida Rule of Criminal Procedure 3.220(a)(1)(i). Kilpatrick v. State, 376 So.2d 386 (Fla.1979); Hardison v. State, 341 So.2d 270 (Fla.2d DCA), cert. denied, 348 So.2d 952 (Fla.1977). Once a failure to disclose the name of a witness is called to the attention of the trial court, an inquiry must be held to determine whether the state’s failure was willful, whether or not the effect of the omission is substantial and whether it prejudiced the accused’s preparation for trial. Failure to do so requires reversal. Richardson v. State, 246 So.2d 771 (Fla.1971); Hardison v. State, supra; Thompson v. State, 374 So.2d 91 (Fla.2d DCA 1979).

Therefore, we set aside the judgment and sentence and remand for a new trial.

GRIMES, A.C.J., and OTT and DAN-AHY, JJ., concur.

      . 777.011 Principal in first degree. — Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he is or is not actually or constructively present at the commission of such offense.

      . Because the amendment was enacted as part of the revision of the entire criminal code, it is difficult to glean the legislative intent. It may be that the words were added to extend the scope of the statute to attempted crimes or, alternatively, to differentiate from criminal solicitation which was first made a statutory crime in the same legislation. Ch. 74-383, Laws of Fla.


text:
    LEE COUNTY BANK, as trustee, Appellant, v. CHRISTIAN MUTUAL FOUNDATION, INC., and Thomas R. Spencer, Sr., Receiver, Appellees.
    No. 80-1306.
    District Court of Appeal of Florida, Second District.
    July 29, 1981.
    Rehearings Denied Sept. 16, 1981.

      Charles W. Pittman of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    John K. Aurell of Holland & Knight, Frank M. Mock and Charles V. Hedrick of Mahoney, Hadlow & Adams, Tallahassee, for appellee Christian Mut. Foundation.
    William H. Shields of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, for appellee Thomas R. Spencer.
   SCHEB, Chief Judge.

Appellant, Lee County Bank, challenges an order of the trial court refusing to permit it to foreclose a mortgage in default, and requiring it, as trustee, to accept a reorganization plan for rehabilitation of the debtor’s project. We conclude that the trial court acted beyond its power, and we reverse.

In 1972 Wilson Life Ministries, Inc., purchased a 373-acre parcel of land in Lee County for development of Estero Woods Village, a retirement community project. It financed the purchase and commencement of construction through the issuance and sale of bonds which it secured by a first mortgage on the property. Lee County Bank acted as trustee for the bondholders. Wilson eventually merged into Michigan Baptist Foundation which continued the project. While the bonds, aggregating in excess of $4,000,000, were outstanding, the Foundation issued $3,300,000 in unsecured notes. Meanwhile, it continued to make interest payments on the first mortgage bonds on schedule through 1977.

The Foundation continued its sale of unsecured notes until March 22, 1978, when the Comptroller of the State of Florida filed a complaint alleging that the Foundation was insolvent, and that the first mortgage bonds and unsecured promissory notes had not been registered as required by chapter 517, Florida Statutes (1979). The comptroller further alleged that agents of the Foundation had fraudulently induced many bondholders to relinquish their secured position by exchanging their bonds for unsecured notes. The complaint requested an injunction against the Foundation to prevent further sales of bonds or notes and the appointment of a receiver to conclude the Foundation’s affairs and dispose of its property. With the Foundation’s consent the court issued an injunction and appointed appellee Thomas R. Spencer receiver for the project.

After examining the Foundation’s condition, the receiver informed the court that there were no funds available to pay the interest due in April 1978 on the bonds. On May 26 the receiver further reported that the Bank, as trustee for the bondholders, had threatened to institute foreclosure proceedings because of the default in interest. At the receiver’s request the court temporarily enjoined the Bank from foreclosing, and following a hearing in August, it made the injunction permanent.

The receiver then obtained several proposals to purchase the property for amounts substantially in excess of that necessary to satisfy the first mortgage. After reviewing numerous proposals he announced that he favored one by the Christian Mutual Life Insurance Company to acquire the property. On September 28, 1979, the court entered an order which tentatively approved a revised plan submitted by Christian Mutual Life and ordered the Bank, as trustee for the bondholders, to subordinate its first mortgage to the possessory interest of tenants under residential agreements executed after September 28, 1979. The Bank declined to participate under this plan, and the court relieved it of its obligation to serve as trustee under any substitute indenture. On March 7, 1980, the Bank filed a formal objection to the plan, and on April 16 it made its first foreclosure request. Then on May 8 it asked the court to reject the plan because of its bondholders’ objections, to dissolve the temporary injunction, and for permission to institute foreclosure.

Despite the objection of the Bank and the holders of a substantial amount of outstanding bonds, the court, after a hearing, issued its Final Order Approving Plan and Sale of Capital Assets on June 17. Under the plan as finally approved, appellee Christian Mutual Foundation, a wholly owned subsidiary of Christian Mutual Life, became the owner of the assets of Michigan Baptist Foundation, free of the first mortgage held by the Bank as trustee and of any other claims and liens. The court approved a four-year moratorium on interest due the bondholders and ordered the Bank to execute a satisfaction of its first mortgage and to deliver it to Christian Mutual Foundation. The Foundation was to then issue first priority replacement notes to the bondholders, these to be secured by a mortgage on the project. While the original bonds matured from 1975 to 1981, the replacement notes approved by the court were to mature by March 1, 1985. Some other creditors were elevated to a secured status but one which was inferior to the replacement notes. Finally, the plan provided for the issuance of first priority notes to holders of unsecured certificates who could establish that they had been fraudulently induced to exchange their bonds for the unsecured notes.

The court found that the plan it approved provided for eventual payment of all principal and interest due the bondholders, thereby affording economic benefits to the Bank’s bondholders beyond those which could otherwise be obtained at a foreclosure sale. It also found that the plan continued the lien rights of those bondholders, and adequately protected the rights of Michigan Baptist Foundation’s other creditors. The court did not otherwise state its reason for enjoining the Bank from foreclosing and for accepting the plan of Christian Mutual Foundation. However, we surmise that it determined that the project was a worthy charitable endeavor which should continue as long as there was a plan to protect the bondholders and other creditors.

Appellees advance a forceful equitable argument for upholding the court’s judgment, contending that the value of the plan, as approved, outweighs any value that foreclosure would return to the Bank’s bondholders and the other creditors. We recognize that the receiver and the court have expended considerable creative effort to fashion an equitable settlement of this major problem. In candor, the plan has considerable appeal when viewed from the standpoint of an equitable settlement. Despite this, the threshold question we must address is whether the court had the power to permanently enjoin the Bank as trustee from foreclosing the mortgage on behalf of its bondholders.

Our analysis focuses on two points: (1) whether a court in its general equitable power can impose a moratorium on foreclosure, and (2) whether chapter 517, under which the comptroller acted, or other statutory authority vests such power in the court.

While the supreme court has stated that some degree of impairment of contract by legislative action is tolerable, in practice, the court “has generally prohibited any form of contract impairment.” State v. Chadbourne, Inc., 382 So.2d 293, 297 (Fla.1980). See also Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla.1980); Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077 (Fla.1978); Yamaha Parts Distributors, Inc., v. Ehrman, 316 So.2d 557 (Fla.1975). On the premise that the constitutional proscription is against the legislature, appellees argue that the judicial branch is not bound to preserve the sanctity of contract provisions. We disagree.

Where there are no allegations of fraud, restraint, oppression, usury, mistake or other facts disclosing an unconscionable advantage, courts of equity have not been permitted to suspend a mortgagee’s right to enforce substantive provisions of a mortgage contract through foreclosure. See Kontz v. Citizens & Southern National Bank, 181 Ga. 70, 181 S.E. 764 (1935); Bolich v. Prudential Insurance Co., 202 N.C. 789, 164 S.E. 335 (1932). In Kenly v. Huntingdon Building Association, 166 Md. 182, 170 A. 526, 529 (1934), Judge Diggs explained the rationale for not permitting a court of equity to enjoin foreclosure of a mortgage:

It would tend to greatly limit, if not entirely destroy, all dealings based upon contract. No one would feel safe in loaning money upon the solemn obligation of the borrower to repay it in accordance with the terms of the loan; and the enforcement of this doctrine, claimed to be equitable, would return to the people as a plague, demoralizing all industrial and economic transactions based upon obligations to perform, and result in untold hardships and deprivations to the great mass of individuals. It would, in one stroke, convert the government from one of law to one of men, because it would be entirely within the power of the equity court to determine whether or not an emergency did, in fact, exist, and whether or not injustice would be done by enforcement of the settled principles and rules of law. It would result in different rules applicable to one individual from another, under similar circumstances, only dependent upon as little as the whim or caprice of the judge before whom the case was heard. No one contends for a moment that the application of a settled rule of law or equity does not in some instances work hardship or injustice; yet the best thought and the experience of men, over a period of hundreds of years, demonstrate beyond controversy that definiteness and certainty is one of the greatest factors in seeking to apply the law equally and equitably to all who come under its dominion.

We think this reasoning is sound, and, of course, it applies as strongly to charitable projects as it does to commercial endeavors.

Florida recognizes these general principles. Our supreme court has held that courts may not withhold entry of a foreclosure judgment merely because of adverse economic conditions and the resultant misfortunes of the mortgagor. Carson v. Farnham, 119 Fla. 1, 160 So. 520 (1935); Morris v. Waite, 119 Fla. 3, 160 So. 516 (1935). In Home Owners’ Loan Corp. v. Wilkes, 130 Fla. 492, 498, 178 So. 161, 163 (1938), the court speaking through the late Justice Terrell said, “The obligation of the mortgagor to pay or the mortgagee to foreclose in accordance with the covenants in the note and mortgage are all absolute and none of them are made contingent on the borrower’s health, good fortune, or ill fortune, or the regularity of his employment.”

Neither State ex rel. Avenius v. Tidball, 35 Wyo. 496, 252 P. 499 (1927), nor State ex rel. Dooley v. Superior Court, 128 Wash. 253, 222 P. 492 (1924), cited by appellees, establishes a rule contrary to that of the above authorities. In both of those cases, a receiver was appointed and the court directed a sale of the property. Even though the sales were to be free of any liens, the proceeds of each sale were to go to a fund and any rights of lienholders to it would be determined later. Additionally, both cases involved writs of prohibition and the precise holding was that the trial courts did not lack jurisdiction.

Finally, appellees’ reliance on First Federal Savings & Loan Association v. Lock wood, 385 So.2d 156 (Fla. 2d DCA 1980), is unavailing. Lockwood dealt with foreclosure by a savings and loan association which accelerated a mortgage to maturity when the mortgagor transferred ownership of the mortgaged property. The association based its right to foreclose solely on a technical violation of a “due-on-sale” clause in the mortgage. It is important to note that Lockwood did not involve a default in scheduled payments, and this court did not perceive any impairment of security under traditional foreclosure principles. Here, on the other hand, there was a default when Michigan Baptist Foundation failed to make the required interest payments to the Bank as trustee for the bondholders. The Bank’s contract was substantially impaired when the court permanently enjoined it from foreclosing and instead required it to accept new priority notes from Christian Mutual Foundation. By effectuating a moratorium on interest and a revision in maturity dates, the court’s judgment substantially impaired the rights of the Bank’s bondholders and created liabilities on the part of Michigan Baptist Foundation which were different from those originally contracted for by the bondholders and Michigan Baptist’s predecessor. Thus, there was a substantial impairment of contract in the constitutional sense. Commodore Plaza at Century 21 Condominium Association v. Cohen, 378 So.2d 307 (Fla. 3d DCA 1979).

Next, we address the question of whether chapter 517 or any other statute confers additional powers on the court which would authorize it to enjoin the Bank from foreclosing on the security for the bondholders’ investments. Section 517.-191(1) authorizes injunctive relief to the comptroller to restrain securities violations while subsection (2) authorizes appointment of a receiver where necessary. It states, in part:

Such receiver or administrator, when appointed and qualified, shall have all powers and duties as to custody, collection, administration, winding up, and liquidation of said property and business as shall from time to time be conferred upon him by the court. In any such action, the court may issue orders and decrees staying all pending suits and enjoining any further suits affecting the receiver’s or administrator’s custody or possession of the said property, assets, and business or, in its discretion, may with the consent of the presiding judge of the circuit require that all such suits be assigned to the circuit court judge appointing the said receiver or administrator.

Here, the court’s order went beyond merely staying pending suits and enjoining other suits which affected the receiver’s custody of assets. Rather, the court permanently enjoined the Bank from foreclosing and permitted the continuation of the project by forcing a reorganization plan on the Bank. Thus, we think the court’s action was beyond the scope of section 517.191. Also, a trial court is empowered to liquidate the assets and business of a corporation and provide an orderly method for adjudicating creditors’ claims. § 607.274, Fla.Stat. (1979). Section 607.284, however, prohibits any action which would affect the enforceability of any recorded mortgage or lien.

Nothing we have said shall be construed to prohibit the court from restoring to a secured status former bondholders who were fraudulently induced to exchange their bonds for unsecured note certificates. Since we are vacating the court’s judgment, it is unnecessary to rule on the issue raised by appellant concerning the adequacy of notice to the bondholders. We reverse and remand the case for further proceedings consistent with this opinion.

HOBSON and DANAHY, JJ., concur.


text:
    Richard S. FARRELL, Appellant, v. Morton SMITH, Appellee.
    No. 80-1995.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 1981.
    Rehearing Denied Sept. 30, 1981.
    William R. Barker of Levine & Cohen, P. A., Orlando, for appellant.
    Jerome Lewis Tepps of Law Offices of Ronald E. Kay, Fort Lauderdale, for appel-lee.
   PER CURIAM.

AFFIRMED on the authority of Kauffman v. Baker, 392 So.2d 13 (Fla. 4th DCA 1980) and Haist v. Scarp, 366 So.2d 402 (Fla.1978).

LETTS, C. J., MOORE, J, and WILLIAM C. OWEN, Jr., Associate Judge, concur.


author: SHARP, Judge. COBB, Judge,

text:
    Ronald E. HINEBAUGH, Appellant/Cross-Appellee, v. Caryle S. HINEBAUGH, Appellee/Cross-Appellant.
    No. 80-1165.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 1981.
    Rehearing Denied Sept. 15, 1981.
    Isham W. Adams of Adams & Briggs, Daytona Beach, Henry P. Duffett of Duf-fett, Seps & Akers, Ormond Beach and Spector, Tunnicliff & McCord, P. A., Tallahassee, for appellant/cross-appellee.
    Berrien Becks, Jr. of Becks, Becks & Wickersham, Daytona Beach, for appel-lee/cross-appellant.
   SHARP, Judge.

The husband appeals from a final judgment of dissolution of marriage and the wife cross-appeals. The husband challenges the awards of rehabilitative alimony, lump sum alimony and attorney’s fees. He also challenges the requirement that he maintain life insurance for the benefit of the wife and the failure of the trial court to partition and award him exclusive possession of his office building. The wife challenges the court’s denial of permanent alimony. The court awarded her two hundred fifty dollars ($250.00) per week rehabilitative alimony until three years after the youngest child reaches majority. We affirm the lower court in all respects except its refusal to award permanent alimony rather than rehabilitative, its refusal to partition the office building, and its requirement that the husband maintain life insurance on his life for the wife’s benefit.

The parties were married for sixteen years and have two minor children. The husband is a medical doctor earning approximately fifty-seven thousand dollars ($57,-000) per year. The wife has a degree in education and worked full time as a teacher to support the family while the husband completed medical school. The wife has not worked since the first child was born and she does not have a permanent teaching certificate. She plans to remain at home to care for the children, but does work part-time as a teacher’s aide earning two dollars fifteen cents ($2.15) per hour. It will be approximately twelve years before the youngest child is eighteen (18) and the wife will then be forty-six (46) years old. The record does not indicate any basis to conclude that at that point or three years thereafter the wife will be able to earn sufficient income to sustain herself at a level that approximates the level the parties experienced during the marriage. Under these circumstances it was an abuse of discretion for the trial court not to award the wife permanent alimony. Patrick v. Patrick, 399 So.2d 72 (Fla. 5th DCA 1981); Gerber v. Gerber, 392 So.2d 317 (Fla. 4th DCA 1980); Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980); G’Sell v. G’Sell, 390 So.2d 1196 (Fla. 5th DCA 1980); McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977).

At oral argument the parties stipulated that the office building should be partitioned and that it was error to require the husband to maintain insurance for the benefit of the wife. However, the court may order the husband to maintain life insurance for the benefit of the children during their minority. Eagan v. Eagan, 392 So.2d 988 (Fla. 5th DCA 1981). We reverse and remand for an award of permanent alimony, reconsideration of the life insurance question and partition of the office property.

AFFIRMED in part; REVERSED in part; and REMANDED.

FRANK D. UPCHURCH, Jr., J., concurs.

COBB, J., concurs in part, dissents in part, with opinion.

COBB, Judge,

concurring in part, dissenting in part.

I concur with the majority opinion in all respects except for the reversal of the trial court’s award of rehabilitative, as opposed to permanent, alimony. I would affirm the trial court in that regard. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Hair v. Hair, 402 So.2d 1201 (Fla. 5th DCA 1981); and G’Sell v. G’Sell, 390 So.2d 1196 (Fla. 5th DCA 1980).


author: BOOTH, Judge.

text:
    Billy Eugene WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. MM-248.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1981.
    Rehearing Denied Sept. 9, 1981.
    Michael J. Minerva, Public Defender, and Harold W. Long, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Asst. Atty. Gen., Tallahassee, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from judgments of convictions for sexual battery and kidnapping and consecutive sentences of 30 and 50 years. Williams contends the trial court erred in denying his various motions to suppress his confession, photographic and in-court identifications, and tangible evidence.

The victim was abducted at knife point from the parking lot of Sears Catalog Distribution Center around noon on July 14, 1978, and taken to a wooded area, where she was sexually assaulted in a brutal manner. The assailant then drove her back to the Sears employees’ parking lot, got into his own vehicle, and left. On the same day, the victim gave police a detailed physical description of her assailant and further told officers that she observed him leave the area in a tomato red Dodge Charger.

On July 18, 1978, Detective Emanuel of the Jacksonville Sheriff’s Office met with Sears security officers to inform them of the description of the victim’s assailant and his car. The same afternoon, Albert Kuba-la, a security officer at Sears, observed appellant, who closely resembled the victim’s description, in a reddish orange automobile, similar to the vehicle described by the victim, in the employee area of the parking lot. Appellant told Kubala that he needed to see an employee and voluntarily accompanied Kubala to the security office so that the employee could be located. While appellant spoke with the employee in the security office, Kubala called Detective Emanuel and informed him that a man who matched the assailant’s description was in his office. Upon his arrival at Sears, Detective Emanuel spoke with appellant in the security office but did not place him under arrest or prevent him from leaving.

Appellant voluntarily agreed to accompany Detective Emanuel to the homicide office in the patrol car. Before getting into the back seat, appellant was patted down, and a “blade knife” removed from his pocket.

On arrival at the police station, Detective Emanuel questioned appellant about his employment and whereabouts on July 14. Appellant indicated that he had been at work until approximately 2:00 p. m. that day. Detective Emanuel then called appellant’s employer and was informed that appellant had left the business premises at approximately 11:45 a. m. and had not returned. When Detective Emanuel confronted appellant with the information received from his employer, appellant became very nervous. At this point, Detective Emanuel advised appellant of his Miranda rights, which appellant acknowledged he understood. Appellant then agreed to be photographed, and, shortly thereafter, the victim identified appellant as her assailant from a photographic spread. Appellant was placed under arrest and, after again being advised of his rights, executed a waiver of rights form and confessed to the crime.

Appellant contends that he was subjected to custodial interrogation without receiving Miranda warnings, and that he was detained without probable cause. On this basis, appellant argues that all evidence, including victim identification, the knife, and appellant’s statements and confession to the crime, was tainted and should have been suppressed.

We reject appellant’s contention that his constitutional rights were violated in this case. The United States Supreme Court, in Miranda v. Arizona, supra, established procedural safeguards protecting an individual’s privilege against self-inerimination while in custody or deprived of freedom in any significant way. The prosecution must demonstrate the use of such procedural safeguards before it may introduce any statements stemming from custodial interrogation of the defendant into evidence. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. However, in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), the United States Supreme Court held that police officers are not required to administer Miranda warnings to everyone whom they question. In the Mathiason case, the accused was a parolee who had been suggested to the police as a burglary suspect. After several unsuccessful attempts to contact him, a law enforcement officer left a note at Mathiason’s residence asking him to call because the officer would “like to discuss something.” Mathiason called and agreed to meet at the state patrol office. At their meeting, the officer told Mathiason that he was not under arrest but advised “that the police believed defendant was involved in the burglary and [falsely stated that] defendant’s fingerprints were found at the scene.” (429 U.S. at 493, 97 S.Ct. at 713) Several minutes later, Mathiason confessed he had taken the property. The officer then advised Mathia-son of his Miranda rights and took a taped confession. Mathiason was allowed to return home after his confession. The officer told him the case would be referred to the District Attorney to determine if charges would be brought. The Supreme Court, rejecting the contention that Miranda warnings were not timely given, held (429 U.S. at 495, 97 S.Ct. at 714):

[Tjhere is no indication that the questioning took place in a context where [Mathi-ason’s] freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a 72-hour interview [Math-iason] did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody or “otherwise deprived of his freedom of action in any significant way.”
Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a “coercive environment.” Any interview of one suspected of a crime by a police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.

In determining “custody,” the majority of courts have utilized an objective test, to-wit: whether, under the circumstances, a reasonable person would have believed he was in custody. Note, Custodial Interrogation after Oregon v. Mathiason, 1978 Duke L.J. 1497, 1500 (1979). See generally Hunter v. State, 590 P.2d 888 (Alaska 1979); State v. Perry, 298 N.C. 502, 259 S.E.2d 496 (N.C.1979). As noted in Hunter (590 P.2d at 895):

The custody determination must be made on a case-by-case basis, but the inquiry, as expressed by the court in United States v. Hall,[] 421 F.2d at 545, is whether:
in the absence of actual arrest something . . . [is] said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates [to the defendant] that they would not have heeded a request to depart or to allow the suspect to do so.
This requires some actual indication of custody, such that a reasonable person would feel he was not free to leave and break off police questioning, [footnotes omitted]

In the instant case, appellant testified that he voluntarily accompanied Kubala to the security office and that his conversation there with Detective Emanuel was congenial and unaccompanied by threats, harassment, or coercion. When Detective Emanuel requested that appellant accompany him to the station, appellant also voluntarily agreed. Transportation to the station by use of a police car does not per se add to the coercive aspects of questioning. See Harris v. State, 376 So.2d 773 (Ala.Cr.App.1979); Calaway v. United States, 408 A.2d 1220 (D.C.1979). Detective Emanuel testified that appellant was neither informed that he was under arrest nor told he had to remain, and that there was no intent to detain appellant, who was free to leave at any time prior to his formal arrest.

Concerning the pat-down search for weapons prior to appellant entering the police car, we note that appellant was being questioned in connection with a crime committed by an armed and dangerous felon. He and his vehicle resembled closely, but not exactly, the description given by the victim of the crime. The circumstances were sufficient to warrant further investigation but not to support the arrest of appellant at that time. The officer was not required to gamble his life by placing appellant in the patrol car with him without the precaution of a pat down for weapons. See State v. Webb, 398 So.2d 820. Opinion of the Florida Supreme Court rendered May 14, 1981. This was true even though appellant appeared cooperative and voluntarily accompanied the officer. A number of decisions support the right of a peace officer to conduct a pat-down search for weapons, for protection of the officer, prior to placing a person into a police vehicle. Weapons seized in such a search are admissible even though the person subjected to the pat-down search was not under arrest at the time he was placed in the patrol car.

We have considered the other issues raised and find them to be without merit. The overwhelming evidence supports the jury’s verdict of guilty of the offenses charged.

AFFIRMED.

McCORD and SHAW, JJ., concur.

      . Appellant testified that he was handcuffed prior to being placed in Detective Emanuel’s patrol car. Detective Emanuel did not recall that appellant was handcuffed. Appellant argues that, since his testimony in that regard was not rebutted, the trial court was bound to accept this testimony. We disagree. The trial court could properly reject such testimony as unworthy of credit since appellant’s testimony as to other material facts was contradicted. See 32A C.J.S. Evidence § 1038 (1964). Bellman v. Yarmark Enterprises, Inc., 180 So.2d 663 (Fla.3d DCA 1965), cert. dismissed, 188 So.2d 807 (Fla.1966).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Appellant, in the instant case, was not allowed to leave after his confession because, inter alia, of the positive identification by the victim of the crime.

      . United States v. Hall, 421 F.2d 540 (2d Cir. 1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398 (1970).

      . See Boal v. State, 368 So.2d 71 (Fla.2d DCA 1979) (pat-down search for weapons before placing defendant into police vehicle held valid to insure personal safety of officer while transporting defendant who was under investigation but not arrested; conviction of carrying concealed weapon affirmed); People v. Otto, 91 Mich.App. 444, 284 N.W.2d 273 (1979) (pat-down search for weapons before placing hitchhiker into police vehicle held valid, even where no cause to arrest existed and no facts indicated that defendant was armed and dangerous). See also Stewart v. State, 409 A.2d 1052 (Del.Super.1979) (pat-down search of suspect held valid ten days after rape incident, where suspect was similar to victim’s description and perpetrator of crime had been armed), cf., Walden v. State, 397 So.2d 368, (Fla. 1st DCA 1981) (patdown improper) where custodial detention under Fla.Stat. § 396.072(1) not valid).


author: HENDRY, Judge.

text:
    Emilio FOX and Frances Fox, his wife, Appellants, v. The SAILS AT LAGUNA CLUB DEVELOPMENT CORPORATION, a Florida corporation, Appellee.
    No. 80-2464.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.

      Gilbride & Heller and Lawrence Heller and Lewis N. Brown, Miami, for appellants.
    James F. Comander, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

Appeal is taken from a final judgment of the circuit court of Dade County entered in favor of appellee corporation.

In August of 1979, appellants Fox executed unit reservation and deposit receipt agreements for the purchase of three eon-dominium units at the Sails. Four months later, appellee attempted to return appellants’ deposits and cancel the agreement, but appellants refused to accept the money. Appellants then filed this suit seeking specific performance of the agreements and money damages. Appellee answered the complaint alleging, inter alia, that the agreements in question did not satisfy the statute of frauds, and were too vague and indefinite to support an action for specific performance. Both sides moved for summary judgment, and the trial court granted appellee’s motion on the basis of Socarras v. Claughton Hotels, Inc., 374 So.2d 1057 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 760 (Fla.1980). In Socarras, this court denied specific performance of a land sales contract where the vendor’s signed note did not incorporate all the essential terms necessary to make an enforceable contract for the sale of land.

Appellants raise two issues on appeal. First, they argue that the unit reservation and deposit receipt agreements signed by the parties were sufficiently definite to compel specific performance. Second, appellants contend that even if the signed agreements are not explicit enough to entitle them to specific performance, the trial court erred in denying appellants the opportunity to litigate their damage claims before a jury.

In order to obtain specific performance of a contract for the sale of real property, the statute of frauds, Section 725.01, Florida Statutes (1979), requires that the contract satisfy two conditions. One, the contract must be a writing signed by the party against whom enforcement is sought. Two, the writing must contain all of the essential terms of the sale and these terms may not be explained by resort to parol evidence. Rundel v. Gordon, 92 Fla. 1110, 111 So. 386 (1927); Socarras v. Claughton Hotels, Inc., supra; Cohodas v. Russell, 289 So.2d 55 (Fla. 2d DCA 1974). Although the agreements in the instant case were in writing and signed by both parties, the summary judgment entered below denying specific performance must be affirmed since many of the essential terms of the contract are omitted. While the agreements include the names of the parties to the transaction, the location of the subject property, and the purchase price, conspicuously absent is any mention of the terms of payment or time for payment. Appellants’ attempt to cure this omission by showing that the parties understood that the seller would receive full payment at the time of closing and that the financing would be handled exclusively by a third party is unavailing. The writing itself must contain all of the necessary terms of sale, and missing elements may not be filled in by resort to parol evidence. Rundel v. Gordon, supra; Socarras v. Claughton Hotels, Inc., supra. Accordingly, we find that the unit reservation and deposit receipt agreements were not sufficiently explicit to warrant specific performance. Therefore, the trial court was correct in entering the summary judgment.

Although this is not a proper case for the grant of specific performance, appellants are not precluded from seeking damages for breach of the agreements. A lesser degree of certainty is required to afford relief for damages than is necessary to decree specific performance. Benson v. Chalfonte Development Corp., 348 So.2d 557 (Fla. 4th DCA 1976), cert. denied, 354 So.2d 979 (Fla.1977); Langlois v. Oriole Land & Development Corp., 283 So.2d 143 (Fla. 4th DCA 1973); Lasseter v. Dauer, 211 So.2d 584 (Fla. 3d DCA 1968). In Benson, the parties entered into a deposit receipt agreement remarkably similar in substance to the one relied upon in this case. As here, the agreements in Benson were for particular apartments in the condominium development and the exact amount of the purchase price was spelled out in each agreement. When the seller attempted to increase the contract price, the buyer filed suit seeking damages for breach. In ruling that the trial court erred in holding as a matter of law that the deposit receipt was not a valid contract for which damages could be recovered, the Benson court stated:

In the event of a new trial in this case, we do not know if appellants would be able to establish by competent proof the existence of a valid contract, as well as a breach thereof by appellee with resulting damages to appellants. However, the agreements which are the subject of this appeal are not, as a matter of law, in this action for damages, fatally defective because of a lack of certainty.

348 So.2d at 560 (citations omitted). See also, Lasseter v. Dauer, supra. We agree with the reasoning of the Fourth District and apply it to the facts of this case. Since the summary judgment prevented appellants from litigating their damage claims, the cause is remanded in order that appellants may present evidence on the existence of a valid contract, breach of the contract, and damages.

The summary judgment entered in favor of appellee denying specific performance of the agreement is affirmed. The cause is remanded for trial on appellants’ damage claims for breach of the agreement.

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

      . The agreement read as follows:

      An agreement for each of the three units was executed, containing the appropriate unit number, price, purchaser, seller, and the date signed.