author: SCHWARTZ, Judge.

text:
    The STATE of Florida, Appellant, v. Allen BECK, Appellee.
    No. 80-420.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1980.
    Rehearing Denied Dec. 10, 1980.
    Janet Reno, State’s Atty. and Neil Karad-bil, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The state appeals from an order suppressing the defendant’s four confessions to the crime of arson. It was undisputed that Beck had been given his Miranda warnings on several occasions before he confessed and that he had not been abused or overborne in any way. The basis of the ruling below, however, was that the confessions were the product of “implied promises” of psychiatric help and assistance. We reverse.

Since Beck prevailed, the record must be viewed in the light most favorable to him. Even doing so, we find nothing to support the order under review. The trial judge- and the defendant on appeal-have relied on two statements made to Beck during the course of his multiple confessions. The first was by a polygraph examiner, George Slattery, before Beck made his initial admission. Beck asked Slattery, in an apparently hypothetical fashion, “what would happen to someone if they had set the fires ... if they were sick ?” According to the defendant, Slattery answered as follows:

A: He said, ‘I’m not right in a position-I’m not a law officer,’ he said, ‘but if there’s something wrong with you,’ he said, ‘surely, the Court will look upon this and may give you some help.’
Q: How did you feel when Mr. Slattery told you that?
A: I believed what he said.
Q: What do you mean when you say, ‘you believed what he said,’ that he could get you help or that it would be taken into consideration?
A: He said they would get me some help, [emphasis supplied]

The other alleged promise was by an investigating officer, Sgt. Wagner, between the third and fourth confessions. On that occasion, he told Beck that “I would ask for [a psychiatric evaluation] if that’s what he wanted and he said he did.”

We hold that neither Slattery’s nor Wagner’s assurances to Beck constitute a basis for vitiating the confessions. This is the case because, even if the remarks may be considered as containing “promises” to the defendant, neither was made as a means of inducing or in return for the confessions which followed. In other words, Slattery and Wagner pointedly did not say that, if Beck confessed, they would get him help or a psychiatric evaluation; they said that they would do so if “someone” were sick, in the first instance, or if Beck desired it, in the second. It is established law that a

confession should be excluded if the attending circumstances, or the declarations of those present at the making of the confession, are calculated to delude the prisoner as to his true position, or to exert improper and undue influence over his mind, [emphasis supplied]

Frazier v. State, 107 So.2d 16, 21 (Fla.1958). See also, Blatch v. State, 389 So.2d 669 (Fla. 3d DCA 1980). There is nothing in either remark made to Beck which qualifies under this rule. To the contrary, it is well-settled that non-particularized comments such as these concerning medical or psychiatric assistance which may be provided to the defendant do not result in the exclusion of a confession, so long as the aid is not offered in return for a consequent statement. DeCastro v. State, 359 So.2d 551, 552 (Fla. 3d DCA 1978) (“appellant was not promised anything in return for his statement in this case . . . the promise of methadone treatment was not used as an inducement for him to confess.” [emphasis supplied]); Wade v. State, 204 So.2d 235 (Fla. 2d DCA 1967); see, State v. Jones, 26 Ariz.App. 66, 546 P.2d 43 (1976); State v. Creekmore, 208 Kan. 933, 495 P.2d 96 (1972); People v. White, 63 A.D.2d 752, 404 N.Y.S.2d 894 (1978); cf. Presnell v. State, 241 Ga. 49, 243 S.E.2d 496 (1978), rev’d on other grounds, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978); State v. Miller, 76 N.J. 392, 388 A.2d 218 (1978); Townes v. Commonwealth, 214 Va. 683, 204 S.E.2d 269 (1974); contra, Tatum v. State, 585 S.W.2d 957 (Ark.1979). The recent case of Slaten v. State, 367 So.2d 562 (Ala.Cr.App.1978), writ denied, 367 So.2d 569 (Ala.1979), is precisely on point. At 367 So.2d 565-66, the court held:

[T]he only thing said by [the officer] that could be construed as an offer or promise to help pertained to his statement to the effect that he would ask or tell Mr. Bill Thornton of the Mental Health Department to confer with defendant. We are convinced that his statement to defendant did not constitute any offer or promise conditioned upon the incriminating statement or confession. We have no reason to discount the following in his testimony:
‘Q: You used the words I’ll help you, didn’t you, when you were talking to him, I’ll help you out?
A: No, sir, I told him that if he did do this something was wrong with him. I would get him some help.
Q: All right. Now, the help that you were talking about, you don’t know what he understood, do you?
A: I told him I would tell Bill Thornton of the Mental Health Department, I told him I would get him over there.
Q: You also told him you would help him, is that correct, Larry?
A: Yes, sir, that is correct.
Q: And then you talked about the Mental Health Clinic, is that correct?
A: No, sir, we were talking about the Mental Health Clinic when we were talking about helping him.
Q: Did you ever say these words, I will help you, if you will tell me what happened ?
A: No, sir.’ [emphasis supplied]

This case is thus in sharp and decisive contrast with those cited by the defendant, e. g., Lawton v. State, 152 Fla. 821, 13 So.2d 211 (1943); Fillinger v. State, 349 So.2d 714 (Fla. 2d DCA 1977), cert. denied, 374 So.2d 101 (Fla.1979), in all of which the interrogator promised the defendant some benefit as a quid pro quo for the confession.

It is true that, although his written confessions recited that no promises had been made, Beck did state that the reason he confessed was that he thought, from “the way they were talking, that I would get the help I need.” Since, however, this motivation was not, as we have seen, induced by any improper threat or promise by anyone else, it cannot result in the suppression of the confessions. See, Barnason v. State, 371 So.2d 680 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 764 (Fla. 1980). Instead, Beck’s statements must be regarded as stemming solely from his own self-induced desire to alleviate his mental illness and distress, and therefore as entirely voluntary and admissible. See, State v. Williams, 386 So.2d 27 (Fla. 2d DCA 1980); State v. Baker, 4 Kan.App.2d 340, 606 P.2d 120 (1980).

Reversed.

      . Royer v. State, 389 So.2d 1007 (Fla. 3d DCA 1980).

      . Even if we found, as we do not, that the officer’s statement was an improper promise, the result would be to invalidate only the fourth confession which followed it. It obviously could have no effect on the preceding statements. State v. Knight, 324 So.2d 169 (Fla. 2d DCA 1975).

      . The situation involved in this case is essentially the same as one in which an officer, simply in the course of speaking to him, promises or gives the defendant a cigarette or a cup of coffee; surely, his subsequent contention that he confessed only in order to receive such a benefit-unjustified by the statements of the police-would not invalidate the confession. The result would be different, however, if the questioner told the defendant that he would be given an amenity only in return for a statement.


source: Caselaw Access Project

author: COWART, Judge.

license: Public Domain

text:
    Lillian M. BAUGHMAN and Jack R. Baughman, her husband, Appellants, v. Ernest William VANN, L & M Paving and Construction Co., a corporation, and Hartford Accident & Indemnity Co., a corporation, Appellees.
    No. 79-322.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 1980.
    Rehearing Denied Dec. 5, 1980.

      H. Charles Woerner, Jr. and Daniel S. Wallace of Woerner & Wallace, South Day-tona, for appellants.
    Leon Handley and W. Marvin Hardy, III of Gurney, Gurney & Handley, P. A., Orlando, for appellees.
   COWART, Judge.

Appellant Lillian Baughman was either stopping or had stopped at a traffic light when the vehicle she was driving was struck from the rear by a truck driven by appellee Vann and owned by appellee L & M Paving Co. and insured by appellee Hartford Accident & Indemnity Co. Appellant filed suit and at trial her motion for a directed verdict as to liability was denied. Appellant takes this appeal from a judgment based on a jury verdict for appellees. We reverse.

When a leading vehicle is located within its proper place on the highway, proof of a rear-end collision raises a presumption of negligence on the part of the overtaking vehicle. Stephens v. Dichtenmueller, 207 So.2d 718 (Fla. 4th DCA 1968); Rianhard v. Rice, 119 So.2d 730 (Fla. 1st DCA 1960). This presumption provides a prima facie case which shifts to the defendant the burden to come forward with evidence to contradict or rebut the presumed negligence. If the defendant produces evidence that fairly and reasonably shows that he was not negligent, the effect of the presumption disappears and negligence then becomes a jury question. Gulle v. Boggs, 174 So.2d 26 (Fla.1965); Shaw v. York, 187 So.2d 397 (Fla. 1st DCA 1966). The burden on the defendant is not to come up with just any explanation, but one which is “substantial and reasonable.” Brethauer v. Brassell, 347 So.2d 656 (Fla. 4th DCA 1977).

The only explanation offered to rebut the presumption of negligence was the suggestion of the involvement of a “phantom vehicle;” this was based on an accident report, which was inadmissible under section 316.066, Florida Statutes, and on a police officer’s opinion based on hearsay, which was likewise inadmissible. State v. Inman, 347 So.2d 791 (Fla. 3d DCA 1977), cert. denied 355 So.2d 517 (Fla.1978); Smith v. Frisch’s Big Boy, Inc., 208 So.2d 310 (Fla. 2d DCA 1968).

The judgment is reversed and the cause is remanded with directions to enter a directed verdict for appellant on the issue of liability and for a new trial on the issue of damages.

REVERSED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: GLICKSTEIN, Judge. ANSTEAD, Judge, LETTS, Chief Judge,

text:
    Beverly Ann KAYLOR, Appellant, v. Ronald Dean KAYLOR, Appellee.
    No. 78-2167.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1980.
    Rehearing Denied Dec. 24, 1980.

      Larry Klein, West Palm Beach, and Ronald Sales, Palm Beach, for appellant.
    Cynthia S. Prettyman of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a final judgment of dissolution which included, in pertinent part, the following findings of fact:

2. The parties were married on March 27, 1960 and have resided together since that time. Today Mrs. Kaylor is thirty-eight (38) years of age and Mr. Kaylor is thirty-nine (39) years of age. During the course of the marriage three children were born: Cindy Cherise, age 17, Christopher Wayne, age 9, and Julie Karen, age 8.
3. Though Mrs. Kaylor did work outside the home for short periods of time during the initial stages of the marriage, she has for the most part worked as a full-time homemaker. She is a fit and capable parent. At the present time Mrs. Kaylor suffers from severe emotional depression which requires some psychiatric care and which, for the time being at least, renders her occupationally disabled.
4. Mr. Kaylor is a graduate professional engineer. He is employed by the K & M Electric Supply, Inc., a corporation of which he is a major stockholder. His annual gross salary is $26,200.00; his net pay per week is $388.05. As is the case with Mrs. Kaylor, Mr. Kaylor is a fit and capable parent.
5. As of this date, the parties jointly own the following property: (1) The marital home (which has a mortgage of approximately $31,000.00 and a fair market value of approximately $47,000.00); (2) The furnishings of the marital home; (3) a 1973 Chevrolet station wagon; (4) A lot and home in North Carolina (which has a fair market value of approximately $2,500.00); and forty per cent of the capital stock of K & M Electric Supply, Inc.
6.K &. M Electric Supply, Inc., is a wholesale electrical supply company. It was formed in 1972 and today has a net value of approximately $90,000.00. It appears that there are two major “partners” in the company, Mr. Kaylor and another. As indicated above, Mr. and Mrs. Kaylor hold record title to forty per cent of the capital stock of the corporation. This stock was purchased when Mr. Kaylor borrowed a total sum of $10,-000.00 from two sources ($5,000.00 from one and $5,000.00 from the other). As of this date, approximately $9,000.00 remains due and owing on the loan. Upon review of the history of this purchase and the financing therefor, the Court finds as a matter of fact that the husband did not intend to confer a gift of the stock upon the wife and that it was placed in joint name solely for survivorship purposes during coverture.

Based on those findings, the trial court awarded the wife custody and child support, lump sum alimony in the form of the husband’s interest in the marital home and furnishings, and rehabilitative alimony of $110.00 per week. The husband was awarded a special equity in the capital stock of K & M Electric Supply, Inc., and was held responsible for one-half of the wife’s attorneys’ fees.

The wife raises three points:

■ I. That permanent, not rehabilitative, alimony should have been awarded to the wife.

II. That the husband should not have been given a special equity in the corporate stock.

III. That the husband should have been ordered to pay all of the wife’s attorneys’ fees.

We agree with her as to point III, but disagree as to points I and II.

As for the first point, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), requires of an appellate court when reviewing a true discretionary act such as an award of alimony to affirm the trial judge unless the latter’s decision is unreasonable. Accord, Burrows v. Burrows, 384 So.2d 1312 (Fla. 4th DCA 1980). Sub judice, in light of the fact that the wife’s treating psychiatrist testified that one of the aims of counseling was to enable the wife to cope with the pressures of a job and that such was a realistic possibility in the future, we do not think that the award of rehabilitative alimony for. three years with the provision that the trial court would retain jurisdiction “to review the circumstances of each party and at the termination of the three-year period, to determine the necessity for an extension of alimony” was unreasonable.

At that time, the trial court will appropriately take into consideration the state of appellant’s health, as well as the other factors bearing on her entitlement to an award of permanent alimony . . .

Hebert v. Hebert, 382 So.2d 842, 843 (Fla. 1st DCA 1980). See Barker v. Barker, 384 So.2d 925 (Fla. 1st DCA 1980).

We also agree with the trial court that the husband had a special equity in the capital stock of the corporation which employs him. The funds for acquiring the stock were from loans and not generated through the work of the husband. Had the latter been the case a special equity would not have arisen. Duncan v. Duncan, 379 So.2d 949 (Fla.1980). While we have disposed of this point on the ground recited above, we further question the wisdom in this case of the wife’s continued ownership-of capital stock in the husband’s business. See Bird v. Bird, 385 So.2d 1090 (Fla. 4th DCA 1980).

Finally, we believe the husband should be responsible for all of the wife’s attorneys’ fees. What the court said in Canakaris v. Canakaris, supra at 1205, is applicable sub judice:

The husband has a superior financial ability to secure and pay counsel. It is not necessary that one spouse be completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay these fees.

Accord, Lewis v. Lewis, 383 So.2d 1143 (Fla. 4th DCA 1980).

Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent herewith.

AFFIRMED in part, REVERSED in part, and REMANDED.

ANSTEAD, J., concurs specially with opinion.

LETTS, C. J., dissents in part with opinion.

ANSTEAD, Judge,

specially concurring:

It is only because the trial court, in essence, postponed a determination as to appellant’s entitlement to permanent alimony that I can concur in an affirmance of the award of rehabilitative rather than permanent alimony. In my view there is simply no competent, substantial evidence in the record to support a conclusion that Mrs. Kaylor will be able to support herself at the end of three years. Certainly, the main thrust of the psychiatrist’s testimony alluded to in the majority opinion was that Mrs. Kaylor was presently disabled from employment and would continue to be so disabled into the foreseeable future. That fact, coupled with the other circumstances attendant to the breakup of this long term marriage would usually result in an entitlement to permanent rather than rehabilitative alimony. Wagner v. Wagner, 383 So.2d 987 (Fla 4th DCA 1980); Bashaw v. Bashaw, 382 So.2d 1352 (Fla. 4th DCA 1980); Garrison v. Garrison, 380 So.2d 473 (Fla. 4th DCA 1980); Patin v. Patin, 371 So.2d 682 (Fla. 4th DCA 1979); Kvittem v. Kvittem, 365 So.2d 791 (Fla. 4th DCA 1978); Langstaff v. Langstaff, 363 So.2d 399 (Fla. 4th DCA 1978); West v. West, 345 So.2d 756 (Fla. 4th DCA 1977); McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977). The burden then would be on the husband to seek a reduction or termination of alimony if the wife indeed subsequently became self-supporting.

However, the Florida Supreme Court, in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) and other recent decisions has stressed the need for vesting the trial court with broad discretion in these matters and I am unwilling to say that the trial court who observed the parties first hand, was acting without reason in fashioning the alimony provisions involved. It may well be that the trial court concluded that the only way Mrs. Kaylor could be helped in rehabilitating herself, emotionally as well as otherwise, would be by requiring her to attempt some employment efforts before the issue of permanent alimony would be decided. And since no final decision has really yet been made on the issue of permanent alimony I see no compelling reason to second-guess the trial court’s judgment in this regard.

LETTS, Chief Judge,

dissenting in part:

I dissent in part.

In my opinion permanent alimony was mandated under the facts of this case. It is all very well for the trial judge to retain jurisdiction for another look-see, but upon-his revisiting the problem down the road, this very opinion will put the burden on the wife to justify any continuing alimony even though the facts clearly established her claim to permanent alimony as of the time of the final dissolution.

Canakaris is a significant and praiseworthy opinion which has been most welcomed by Bench and Bar. However, I am convinced it was not intended to be an absolute carte blanche for trial judges to do whatever they wish. The argument for permanent alimony here is overwhelming.

Moreover as a practical matter, this trial judge who as Judge Anstead notes, “observed the parties firsthand,” will not be there to do so again when the issue is reheard because that trial judge is now a member of this Court. Instead a brand new judge with no more firsthand insight of the record than we have, will revisit the matter knowing that the burden is then on thé wife to prove entitlement to continued support.

Finally, unlike my colleagues, I see no particular magic in the retention of jurisdiction for another look-see. In my experience every final judgment of dissolution retains jurisdiction to revisit the question of support and the only difference here is that the retention is more specific than usual.

At the very least I would certify the question to the Supreme Court. Failure to do so may give rise to the situation where a trial judge can never be reversed for failing to grant permanent alimony.

      . The psychiatrist testified, inter alia : “In time to come, it’s very hopeful that she can handle [the goal oriented pressures of a job] ... She should, really, because this is what we’re working for.”


author:
PER CURIAM.
      HURLEY, Judge,

text:
    Henry E. ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-2395.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1980.
    Rehearing Denied Dec. 10, 1980.
    J. Craig Williams, Jacksonville, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed.

MOORE and HERSEY, JJ., concur.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

I respectfully dissent. The trial court denied defendant’s motion for post conviction relief without conducting an evidentia-ry hearing. • Since I am unable to find that the “record shows conclusively that the appellant is entitled to no relief,” Rule 9.140(g), Fla.R.App.P., I believe the matter ought to be reversed and remanded for an evidentiary hearing. See Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980).


author: PER CURIAM.

text:
    Howard MARKHAM et al., Appellants, v. Georgia H. LAURENDINE et al., Appellees.
    No. TT-142.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1980.
    Rehearing Denied Dec. 19,1980.
    Harry C. Duncan of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellants.
    Steven H. Gray of Green, Simmons, Green, Hightower 1 Gray, P.A., Ocala, for appellees.
   PER CURIAM.

AFFIRMED. See: Town of Hialeah Gardens v. Hendry, 376 So.2d 1162 (Fla.1979); Woldarksy v. Woldarksy, 243 So.2d 629 (Fla. 1st DCA 1971); Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980).

WENTWORTH and JOANOS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: CHAPPELL, BILL G., Associate Judge.

text:
    Michael MONAHAN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-33.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Rehearing Denied Dec. 22, 1980.
    Markus & Winter and Laurie S. Silvers, Miami, for appellant.

      Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.
    Before HENDRY and SCHWARTZ, JJ„ and CHAPPELL, BILL G., Associate Judge.
   CHAPPELL, BILL G., Associate Judge.

Monahan appeals his conviction following a trial before the Court without a jury and challenges the denial of a motion to suppress tangible evidence, to-wit: cocaine, seized without a warrant.

Officers McGavock and Magdalena of the Dade County Public Safety Department were on duty at Miami International Airport randomly looking for persons who matched the “drug courier profile.” Mona-han was first observed just before he entered the terminal building and surveillance continued while he checked a bag and started walking to the concourse. The officers walked up beside him and asked Monahan if they could talk to him. Monahan agreed, and upon the officers’ request, he produced his driver’s license and his airline ticket, both bearing his name. Detective Magdalena stated that they were concerned that the contents of his luggage might contain narcotics and asked Monahan if he would object to their looking in his luggage. He replied that he didn’t mind the officers looking, but he had already checked the larger bag with the airline. Officer McGa-vock testified that Monahan said it would be all right to go get the bag from the airline which Defendant denied. The tote bag being carried by Monahan was searched and Detective Magdalena appeared with the suitcase he retrieved from the airline. Monahan denied that the suitcase was his whereupon the officers informed Monahan that he was being detained, advised him of his rights and handcuffed him. The officers advised Monahan that they intended looking into the suitcase, considering it to be abandoned property. They transported Monahan to the police station at the west side of the airport where the suitcase was forced open and found to contain packets of cocaine.

It is not necessary in this case to review the cases on temporary “drug courier profile” stops in airports.

The initial stop of Monahan was based solely on the observation that he was looking around before entering the terminal building and continued to do so while checking his suitcase. The officers had nothing more than bare suspicion which, without his consent, would not have constituted a reasonable basis for the seizure of his person.

Monahan produced identification which coincided with the name on his airline ticket, and he consented to a fruitless search of the tote bag which he was carrying. Subsequently, he was placed under arrest when he disclaimed ownership of the suitcase retrieved from the airline by Officer Magdalena. At this point, the officers based their actions only upon Monahan’s nervousness and a lack of consent to search the suitcase, obviously insufficient to establish probable cause for the arrest, thus making the arrest invalid. Evidence seized as a result of such illegal arrest should have been suppressed.

The State argues that Monahan abandoned the suitcase when he disclaimed ownership, thereby justifying its search without the necessity of a warrant. Under the facts and circumstances of this case, we find no merit to the argument that the suitcase was “abandoned” property. See, Reid. v. Georgia, - U.S. -, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980); Earnest v. State, 293 So.2d 111 (Fla. 1st DCA 1974).

The judgment is therefore reversed and the cause is remanded with directions to discharge the Defendant.

Reversed and remanded.

      . Royer v. State, 389 So.2d 1007 (Fla. 3d DCA 1980) and cases cited therein.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Mullins v. State, 366 So.2d 1162 (Fla.1978).


text:
    Robert C. FINLEY, Appellant, v. Shirley A. FINLEY, Appellee.
    No. UU-36.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1980.
    Rehearing Denied Dec. 19, 1980.
    William R. Slaughter, of Slaughter & Slaughter, Live Oak, for appellant.
    Terry P. Lewis, of Oven & Gwynn, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Appellee’s Motion for Attorney’s Fee on appeal is granted, and we remand to the trial court for a determination of the proper amount of the fee.

ERVIN, SMITH, and THOMPSON, JJ., concur.


text:
    AETNA FINANCIAL INVESTMENT CORP. and Rita Talmon, Appellants, v. HOLIDAY AUTO RENTALS, LTD., a Bahamas Corporation, Appellee.
    No. 80-497.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19,1980.
    Philip J. Morgan of Brinkley, McNerney & Morgan, Fort Lauderdale, for appellants.
    No appearance for appellee.
   PER CURIAM.

This is an appeal from an order quashing service of process upon the appellee. Upon review of the record, we conclude that the appellants made a sufficient showing that appellee was engaged in a business venture in Florida, within the meaning of Section 48.181, Florida Statutes (1979), so as to establish jurisdiction over the appellee. See Citizens State Bank v. Winters Government Securities Corp., 361 So.2d 760 (Fla.4th DCA 1978).

Accordingly, this cause is reversed and remanded with directions for further proceedings consistent herewith.

LETTS, C. J., and ANSTEAD and MOORE, JJ., concur.


text:
    William C. LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 79-291/T4-396.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 1980.
    Richard L. Jorandby, Public Defender, and Robert C. Fallon, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

The Public Defender has filed an Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), motion and brief representing to this court that no reversible error appears and requesting leave to withdraw as counsel for appellant. This court gave appellant thirty days within which to file a brief in his own behalf. None was filed. We have reviewed counsel’s brief and examined the record and find the appeal is without merit. Substantial, competent evidence supports appellant’s conviction of delivery of a controlled substance. State v. Dent, 322 So.2d 543 (Fla.1975); Stephenson v. State, 371 So.2d 554 (Fla. 2d DCA 1979); State v. Combs, 330 So.2d 560 (Fla. 1st DCA 1976); State v. Hubbard, 328 So.2d 465 (Fla. 2d DCA 1976).

The Public Defender’s motion to withdraw is granted and the judgment and sentence is

AFFIRMED.

COBB and SHARP, JJ., concur.


text:
    Jack KARTEE and Joyce Kartee, his wife, and Jeanne Baker, Inc., Appellants, v. Gloria MANCHERO and Latin American Investment Corporation, Appellees.
    No. 80-42.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Rehearing Denied Dec. 22, 1980.
    Krause, Reinhard & Linden and Neil P. Linden; Rollnick, Squitero & Katz, Miami, for appellants.
    Ezzo, Garel & Saylor and Bruce A. Say-lor, Miami, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. See, Lauderdale v. P. Tavilla Co., 329 So.2d 363 (Fla.3d DCA 1976).


author: BASKIN, Judge. SCHWARTZ, Judge

text:
    Sheldon MINTZBERG, Appellant, v. Shansedin GOLESTANEH and Laima Golestaneh, Appellees.
    No. 80-236.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19, 1980.

      Hilton R. Carr, Jr. and L. J. Cushman, Miami, for appellant.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks and Gary S. Brooks, Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

We affirm the summary judgment for appellees (sellers) entered by the trial court. The court found that the correspondence between the parties failed to establish a contract for the purchase of a condominium and denied the purchaser’s request for specific performance.

Mr. Mintzberg executed a “Contract for Sale and Purchase” which he sent to the sellers in France. The sellers responded with a telegram:

Following telephone conversation last night we are agreeable to sale of unfurnished Kenilworth apartment for price of 200000 dollars cash provided that closing date would be beginning October and that brokers commission is half by both parties the apartment will include all window teatmennts [sic] carpeting attached mirrors ceiling light fixtures and major electrical appliances and and [sic] shower room curtain this offer is valid for one week...

Mr. Mintzberg’s attorney communicated by letter:

This will confirm that the October 1,1979 closing date is acceptable with the understanding that Mr. Mintzberg would prefer an earlier closing date.
I would appreciate a more detailed explanation of your advice to my secretary regarding the maintenance charges.

We must determine whether by this communication Mr. Mintzberg accepted the counter-proposal including the provision dealing with the brokerage fee. We hold that his letter did not express an intention to be bound to the terms of the counter-proposal.

An acceptance must contain an assent to the same matters contained in the offer. Bullock v. Harwick, 158 Fla. 834, 30 So.2d 539 (Fla.1947). The equitable remedy of specific performance may be granted only where the parties have actually entered into a definite and certain agreement. Chaney v. Brown, 158 Fla. 489, 29 So.2d 209 (Fla.1947); Bay Club, Inc. v. Brickell Bay Club, Inc., 293 So.2d 137 (Fla. 3d DCA 1974).

In order to be binding, an acceptance must be communicated to the offeror. Kendel v. Pontious, 261 So.2d 167 (Fla.1972). We have examined the record to determine whether Mr. Mintzberg communicated an acceptance of the seller’s counter-proposal. He did not acknowledge the provision dealing with the brokerage fee in his letter of acceptance. His deposition testimony makes no mention of the brokerage fee. In fact, there is no evidence of any kind disclosing that the broker ever communicated the counter-proposal to Mr. Mintz-berg insofar as it related to the brokerage fee. Appellant argues as evidence of his acceptance that he spent $40,000 to purchase furniture designed for the condominium unit and hired a decorator when advised by his attorney that the telegram had been received and that he now had a binding formal contract. Nevertheless, the evidence fails to disclose that Mr. Mintzberg agreed to the brokerage fee. We hold that the trial court correctly found that no binding contract was agreed upon by the parties.

Affirmed.

SCHWARTZ, Judge

(dissenting).

In my view, the record raises a genuine issue as to whether the purchaser-appellant-by actively, and to the knowledge of the sellers’ representatives, preparing for the new closing date contained in the sellers’ telegram-evidenced by his actions and conduct an acceptance of the entire counter-offer, including the proposal as to the brokerage fee. Romano v. Palazzo, 83 Fla. 243, 91 So. 115 (1922); Shear v. Karno, 150 So.2d 916 (La.App.1963), cert. denied, 244 La. 471, 152 So.2d 563 (1963); 1 Williston on Contracts, § 90 (3d Ed., Jaeger rev. 1957). I would therefore reverse the summary judgment below.


text:
    Monte W. GREEN, Appellant, v. Marsha L. GREEN, Appellee.
    No. 80-954.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Rehearing Denied Dec. 17, 1980.
    Hall & Hauser and Richard F. O’Brien, III, Miami, for appellant.
    Leib, Popper, Mackoul & Martinez and Rory S. Stein, Miami, for appellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. § 61.13(2)(b), Fla.Stat. (Supp. 1978); Osteryoung v. Leibowitz, 371 So.2d 1068 (Fla. 3d DCA 1979).


author: BASKIN, Judge.

text:
    GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION, LTD., Appellant, v. AMERICAN CASUALTY COMPANY OF READING, PA., Appellee.
    No. 79-1234.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    Rehearing Denied Dec. 19, 1980.

      Corlett, Merritt, Killian & Sikes and Linda Loomis Shelley, Miami, for appellant.
    Podhurst, Orseck & Parks and Joel D. Eaton and Walter H. Beckham, Jr., Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

John Brown, Jr., was sued when a neighbor’s young child drowned in his pool. Following an adverse jury verdict resulting in a settlement of $690,000, the pool owner’s excess insurance carrier, American Casualty Company of Reading, Pennsylvania, sued the primary insurance carrier, General Accident Fire and Life Assurance Corporation, Ltd., for General Accident’s bad faith refusal to negotiate and settle the parents’ claims. General Accident appeals an adverse final judgment of $100,000 entered pursuant to a jury verdict as well as awards of attorneys’ fees and pre-judgment interest.

The issues to be decided include: whether an excess carrier may recover damages for the primary carrier’s bad faith refusal to settle a claim against the insured when the claimants make no offer to settle within the primary carrier’s policy limits; whether the award of attorneys’ fees to the excess carrier and the amount awarded were proper, and whether pre-judgment interest should have been awarded. We affirm the trial court’s decisions upon our holding that the excess carrier was entitled to recover damages, attorneys’ fees, and pre-judgment interest as a result of the bad faith refusal by the primary carrier to negotiate or settle, and that a settlement offer within the primary carrier’s policy limits was not a prerequisite to its liability.

On December 12, 1971, the MacDiarmids’ twenty-three month old daughter wandered into a neighbor’s unprotected pool and drowned. John Brown, Jr., the pool owner, was insured by General Accident’s liability insurance coverage up to $300,000 and by an American Casualty excess liability insurance policy of $1,000,000. The Mac-Diarmids sued Brown and his two liability insurers. General Accident, the primary carrier, defended the action in accordance with its contractual obligation to its insured. American Casualty, the excess carrier, did not take an active role in the litigation; instead, it followed the usual insurance industry custom of notifying the primary carrier and asking to be kept informed. Discovery proceedings disclosed that defendants were potentially exposed to a large adverse judgment. On November 13, 1973, counsel for General Accident and its local adjuster were convinced that the MacDiarmids would probably win and that the verdict would be substantial. Counsel for General Accident wrote his client on November 28,1973, stating that “[Tjhis case is taking overtones of a very serious exposure and I suggest that you carry the matter at your full reserve of $300,000.” The requested reserve was the amount required to attempt settlement of the law suit.

The MacDiarmids’ counsel also wrote to counsel for General Accident demanding that the case be settled for $1,000,000. The demand was later reduced to $900,000. The adjuster was asked to contact American Casualty to see if it would contribute toward a settlement if General Accident “threw in” its policy. The adjuster did not contact the excess carrier. Instead, General Accident, at the direction of the home office, took the position that the MacDiar-mids’ opening demands were outrageous and refused to negotiate with them unless they made a more reasonable settlement offer.

Shortly before the action went to trial, American Casualty wrote to General Accident demanding that General Accident make an effort to settle the case. General Accident did not respond to the letter. General Accident never offered its policy limits to the MacDiarmids as requested by American Casualty. In fact, General Accident made no offer of any kind to the MacDiarmids until the trial started. At that time, General Accident offered $25,000 to settle the case. The offer was refused.

The jury returned a verdict of $700,000, and judgment was entered against Brown and his two carriers. The matter was eventually settled for $690,000, with General Accident paying its $300,000 limits and American Casualty paying the remaining $390,000. American Casualty then filed suit against General Accident alleging that it had been damaged by General Accident’s “bad faith” refusal to negotiate with the MacDiarmids and to settle their claim for a reasonable amount. The action proceeded to trial. Testimony revealed the claim probably could have been settled for $400,-000.

General Accident contended in motions for a directed verdict that it was entitled to judgment as a matter of law since American Casualty failed to prove the MacDiar-mids had offered to settle their lawsuit within General Accident’s policy limits of $300,000. After the jury returned a verdict for $100,000 in favor of American Casualty, the court conducted a hearing on American Casualty’s motions to award attorneys’ fees and to allow pre-judgment interest as well as on General Accident’s reserved motions for directed verdict. American Casualty presented evidence that its attorneys had expended 350 to 400 hours, and three expert witnesses estimated a reasonable fee to be between $50,000 to $75,000. Although General Accident argued that American Casualty and its attorneys had entered a contingent fee agreement providing attorneys’ fees of $20,000 or 20% of the gross recovery, the court awarded attorneys’ fees of $42,500. The court allowed pre-judgment interest of $28,093.15 and, upon denying renewed motions for directed verdict, entered judgment for American Casualty in the total amount of $170,593.15. This appeal ensued.

The courts have developed an action for bad faith in order to protect insured persons from unnecessary excess judgments resulting from the willingness of insurance companies to risk trials rather than negotiate and settle claims against insured individuals. The insurance company, usually in control of settlement under policy provisions requiring its consent, is obligated to comply with its concomitant duty to exercise reasonable diligence and decide in good faith whether to settle a claim. Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938). Generally, a refusal by a company to agree to an offer to settle within policy limits creates a conflict between an insurer and its insured, especially when the insurer is aware that the insured may not be able to contribute amounts in excess of the policy. In that situation, the offer of settlement supplies the predicate for a finding of bad faith. Unfortunately, the courts of this state have extended the principle and, perhaps inadvertently, have made an “offer within the policy limits” a requirement for recovery in bad faith actions. Examining the evolution of this rule, we find a number of instructive opinions.

In American Fire and Casualty Co. v. Davis, 146 So.2d 615 (Fla.1st DCA 1962), the court dealt with a case in which an injured third party offered to settle within policy limits and the insured tort-feasor encouraged his company to settle. The company refused, and a verdict far greater than the policy limits was returned. The court found evidence of bad faith on the part of the insurer in accordance with the Shaw court’s explication that from control devolved the duty to exercise good faith. American Fidelity Fire Insurance Co. v. Johnson, 177 So.2d 679 (Fla.lst DCA 1965), announced that the consequence of a refusal to settle when an offer had been tendered was liability for recovery in excess of the policy.

Although Johnson did not hold that an offer to settle was a requirement for the imposition of liability, a federal court interpreting Johnson fashioned its observations of past cases into a rule of law. In Seward v. State Farm Mutual Automobile Insurance Co., 392 F.2d 723 (5th Cir. 1968), the court interpreted Johnson to mean that an insurer is not liable for bad faith in the absence of an offer to settle within policy limits. The court admitted, however, that in a non-Erie case, or in a case originating in another state, the court would be able to say that an offer to settle is irrelevant when the insured is judgment proof and the insurer has “washed its hands of the case”. Seward v. State Farm Mutual Automobile Insurance Co., supra at 727. In that situation, the insured would not incur liability beyond the policy protection.

When the issue presented itself in Beck v. Kelly, 323 So.2d 667 (Fla.3d DCA 1975), the court concluded that American Fidelity Fire Insurance Co. v. Johnson, supra, and Seward v. State Farm Mutual Automobile Insurance Co., supra, required a stringent result. It stated:

In cases where recovery of such excess [judgment] is based upon the ground that the insurer’s conduct in failing to effect a settlement within the policy limits amounts to bad faith, there can be no liability on the part of the insurer in the absence of an offer by the person claiming against the insured to settle within the policy limits. (Emphasis added).

Beck v. Kelly, supra at 668. In Beck, however, the insurer tendered the offer to settle within policy limits and the existence of an offer by the claimant was not germane to the resolution of the case. The Beck rule was followed in Chastain v. Federal Insurance Co., 338 So.2d 214 (Fla.3d DCA 1976).

Other courts, however, have held different views. In Thomas v. Western World Insurance Co., 343 So.2d 1298 (Fla.2d DCA 1977), the court refused to accept the requirement of an offer to settle before imposing liability as a rule of law. The court held that an insurer might be liable for bad faith in circumstances where no offer of settlement was made. The court in Thomas dealt with an insurer’s failure to defend. Thomas was followed by Davis v. Nationwide Mutual Fire Insurance Co., 370 So.2d 1162 (Fla.1st DCA 1979) in which the court avoided the Beck rule by distinguishing its facts. In Canadian Universal Insurance Co. v. Employers Surplus Lines Insurance Co., 325 So.2d 29 (Fla.3d DCA), cert. denied, 336 So.2d 1180 (Fla.1976), the court determined that an offer within the combined policy limits of both carriers was an offer of settlement within policy limits. In Canadian, as in the case before this court, the Beck rule would have permitted the primary insurer to escape liability for bad faith handling of the defense.

The foregoing cases have discussed the rights of an insured in relation to a single insurance carrier in control of the action. What control does the primary carrier exercise over the excess carrier’s handling of the claim?

The excess carrier, to the extent of its limit of liability, stands in the shoes of the insured and assumes the rights as well as the responsibilities that the insured would normally have against the primary carrier. See generally Ranger Insurance Co. v. Travelers Indemnity Co., 389 So.2d 272 (Fla.lst DCA 1980). Equitable sub-rogation principles permit the excess carrier to proceed against the primary carrier when the primary carrier’s bad faith refusal to negotiate a settlement has caused the excess carrier to become liable for an excess judgment. Valentine v. Aetna Insurance Co., 564 F.2d 292 (9th Cir. 1977); Ranger Insurance Co. v. Travelers Indemnity Co., supra; Continental Casualty Co. v. Reserve Insurance Co., 307 Minn. 5, 238 N.W.2d 862 (1976). See, generally Rebozo v. Royal Indemnity Co., 369 So.2d 644 (Fla.3d DCA), cert. denied, 379 So.2d 209 (Fla.1979).

Requiring an offer to settle within policy limits may be a sound rule in those situations involving only a judgment proof insured and one insurer and in which bad faith can be proved only by the refusal to accept a settlement within policy limits. When an insured is not judgment proof or when an excess insurer exists, absence of an offer to settle within policy limits is not dispositive of the question of bad faith on the part of the primary insurer.

The primary insurer assumes the duty of negotiating to settle in good faith by virtue of its control of its insured’s defense. See generally Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783 (Fla.1980). The excess insurer has no control. Blind adherence to the Beck rule would force an excess insurer to enter the litigation to defend itself against the primary insurer’s bad faith, in contravention of customary insurance practices.

In summary, an offer to settle within policy limits may be a factor to consider in determining an insurer’s good faith in the handling of an insured’s defense, but it should not be a prerequisite to the imposition of liability for a primary insurer’s bad faith refusal to settle. The rule requiring an offer to settle within policy limits, designed to protect an insured from an insurer, does not apply to situations in which an excess insurance policy is at issue or in which an insured is financially able to pay an excess judgment. See Peter v. Travelers Insurance Co., 375 F.Supp. 1347 (C.D.Cal.1974). In these situations, the settlement offer is only one factor to be considered in arriving at a determination of bad faith. Young v. American Casualty Co. of Reading, Pennsylvania, 416 F.2d 906 (2d Cir.1969), cert. dismissed, 396 U.S. 997, 90 S.Ct. 580, 24 L.Ed.2d 490 (1970); Bell v. Commercial Insurance Co. of Newark, New Jersey, 280 F.2d 514 (3d Cir. 1960); Rova Farms Resort, Inc. v. Investors Insurance Co. of America, 65 N.J. 474, 323 A.2d 495 (1974); State Automobile Insurance Co. of Columbus, Ohio v. Rowland, 221 Tenn. 421, 427 S.W.2d 30 (1968). See Continental Casualty Co. v. Reserve Insurance Co., supra; Alt v. American Family Mutual Insurance Co., 71 Wis.2d 340, 237 N.W.2d 706 (1976).

To the extent our decision conflicts with Beck v. Kelly, supra, we recede from Beck v. Kelly. Under the Beck rule, the primary carrier’s bad faith failure to negotiate would be without remedy. The court cannot countenance so great a disservice to other interested parties. We therefore hold that an offer to settle within the primary carrier’s policy limits is not a prerequisite to its liability to the excess carrier. The trial court correctly denied General Accident’s motions for directed verdict.

Next, we address the question of the propriety of the award of attorneys’ fees to the excess carrier. Section 627.428(1), Florida Statutes (1973), permits an award of attorneys’ fees only to “the contracting insured, the insured’s estate, specifically named policy beneficiaries, in third parties who claim policy coverage by assignment from the insured.” Roberts v. Carter, 350 So.2d 78, 79 (Fla.1977). General Accident contends that the trial court erred in awarding attorneys’ fees to the excess carrier in its action to recover damages for the primary carrier’s bad faith refusal to settle since, it argues, American Casualty does not fall within the provisions of the statute. We disagree.

American Casualty characterizes its position as a third party who claims policy coverage by assignment from the insured. In All Ways Reliable Building Maintenance, Inc. v. Moore, 261 So.2d 131 (Fla.1972), the court implied a contract to find an assignment of the insured’s claim against the insurance company. The court stated:

[T]he purpose of F.S. Section 627.0127, F.S.A. [now section 627.428(1)] is to discourage contesting of valid claims of insured against insurance companies. Under the broad interpretations which this Court has given Section 627.0127, it would appear to follow that an assignee of an insurance claim stands to all intents and purposes in the shoes of the insured and logically should be entitled to an attorney’s fee when he sues and recovers on the claim.

All Ways Reliable Building Maintenance, Inc. v. Moore, supra at 132. That decision was cited as an example of a third party claiming policy coverage by assignment from the insured and approved in Roberts v. Carter, supra.

General Accident cites American Home Assurance Co. v. City of Opa Locka, 368 So.2d 416 (Fla.3d DCA 1979), as a reminder that attorneys’ fees are not recoverable for indemnity and subrogated rights. In the case before the court, however, American Casualty, the excess insurer, stands in the shoes of the insured with regard to its policy; its liability depends upon the primary carrier’s willingness to negotiate and settle claims.

The implied agreement that General Accident would exercise good faith cloaks its relationship with American Casualty with the indicia of contract principles permitting recovery under the statute. Only recently, Ranger Insurance Co. v. Travelers Indemnity Co., supra, held in a case of first impression that an excess carrier may recover from the primary carrier for its bad faith refusal to settle. Unlike a refusal to defend, in which a question of liability exists, a bad faith refusal to settle arises after liability has been initially determined. An award of attorneys’ fees accords with the statutory purpose of discouraging the contesting of valid claims. We therefore affirm the award of attorneys’ fees.

We find no error in the amount of the fee awarded. The trial court acted within its discretion. United Resources v. City National Bank of Miami, 380 So.2d 1060 (Fla.3d DCA 1980); Snider v. Snider, 375 So.2d 591 (Fla.3d DCA 1979). The court based its award of reasonable attorneys’ fees upon consideration of appropriate factors and expert testimony. Travelers Insurance Co. v. Davis, 411 F.2d 244 (5th Cir. 1969); Insurance Co. of North America v. Welch, 266 So.2d 164 (Fla.4th DCA 1972), cert. denied, 273 So.2d 77 (Fla.1973).

Additionally, we find no error in the award of pre-judgment interest. Liberty Mutual Insurance Co. v. Davis, 412 F.2d 475 (5th Cir. 1969); Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852, modified on rehearing, 184 So. 860 (1938); Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754 (Fla.2d DCA 1978); English and American Insurance Co. v. Swain Groves, Inc., 218 So.2d 453 (Fla.4th DCA 1969).

For the foregoing reasons, the decision of the trial court is affirmed.

      . Since General Accident has not challenged the sufficiency of the evidence of its bad faith or the propriety of the amount of damages awarded to American Casualty, we need not discuss the evidence presented at trial with particularity.

      . American Casualty filed a cross-appeal which was abandoned.


text:
    Elizabeth Jean Blackwell DAVIDSON, Appellant, v. Albert Milton DAVIDSON, Appellee.
    No. 79-1910.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    Rehearing Denied Dec. 19, 1980.
    Sibley, Giblin, Levenson, Glaser, Buchbin-der & Elegant and Ira M. Elegant, George L. Onett, Miami, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Bruce A. Christensen, Miami, for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).


author: HENDRY, Judge.

text:
    FIRST PRUDENTIAL DEVELOPMENT CORP., etc., et al., Appellants, v. HOSPITAL MORTGAGE GROUP, a Trust, Appellee.
    No. 79-1978.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    As Amended On Denial of Rehearing Dec. 17, 1980.
    John H. Lewis, Mann, Dady, Corrigan, Baron & Zelman, Miami, for appellants.

      Malspeis, Locoeo, Brown & Schwartz and Morton P. Brown, North Miami, for appel-lee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   HENDRY, Judge.

Appellants are real estate developers; ap-pellee is in the business of lending money. In late 1973, negotiations between the two interests culminated in a contract by which appellee committed itself until December 12 of that year, to finance construction of two motels for which appellants had located a lessee. Appellee’s obligation was preconditioned upon appellants’ provision of certain documentation regarding the planned construction.

The December 12 termination date came and went, was extended indefinitely by mutual agreement of the contracting parties, several meetings and communications took place subsequent to that date, and the gathering of the requisite data proceeded apace until appellee advised appellants, in late April of the following year, that its finance commitments were terminated. An early May correspondence informed appellants that the commitment deadline had expired on December 12, 1973, that required documentation was lacking on that date, and that the commitments were therefore (and for other reasons) irretrievably withdrawn. The documents thus far collected were returned.

Appellants brought the action below for breach of contract, and, by stipulation, the court initially considered liability only. Appeal is made from its final order pertaining to that single issue.

The trial court found that the original termination date had been extended by mutual agreement of the parties. We concur in that finding. Additionally, it was determined that appellants had failed to satisfy the conditions precedent to appellee’s contractual obligation. Again, we agree. Finally, the court below found that appellee’s acknowledged attempts to terminate its commitments were legally ineffective, that the commitments were still outstanding, that thirty days was a reasonable time for appellants to supply all documentation, and that appellants had thirty days from the date of the court’s order to close.

We believe the trial court to have been in error in those final rulings.

The evidence adduced below conclusively demonstrates that appellee unequivocally denied its duty to provide appellants with the financing they sought. Cf. Fisch v. Radoff, 353 So.2d 160, 163 (Fla. 3d DCA 1978). In this instance, where appellee had undeniably waived its right to hold appellants to the original deadline, and yet had informed appellants that no performance would be forthcoming, as the result of an irremediable occurrence (the passing of the putative December 12 termination date), and had returned all documentation theretofore gathered to appellants, we can only conclude that appellee thereby repudiated its contractual obligation.

This constituted an anticipatory breach. Suit upon such a repudiation was recognized early in our jurisprudence as the prerogative of an injured party, Sullivan v. McMillan, 8 So. 450, 457, 26 Fla. 543 (1890), and such actions were cognizable before the breaching promisor’s performance date, where the breach was unequivocal. Slaughter v. Barnett, 154 So. 134, 114 Fla. 352 (1934), aff’d on other grounds, 166 So. 580, 123 Fla. 237 (1936); Hall v. Northern & Southern Co., 46 So. 178, 55 Fla. 235 (1908); Mori v. Matsushita Electric Corp. of America, 380 So.2d 461, 463 (Fla. 3d DCA 1980).

Generally, substantial performance of all conditions precedent is required before a plaintiff may recover under a contract. Cohen v. Rothman, 127 So.2d 143, 147 (Fla. 3d DCA 1961), petition for cert. discharged, 138 So.2d 328 (Fla.1962). Nevertheless,

[wjhenever, as here, one of the parties to a contract, while the contract is still exec-utory, directs the other party not to proceed further with the performance thereof, the former has breached the contract and the latter may bring an action for damages for the breach of the contract. ...

Poinsettia Dairy Products, Inc. v. Wessel Co., 166 So. 306, 309, 123 Fla. 120 (1936). We have previously noted, with regard to performance of conditions precedent as a precondition to suit for breach of contract, that “one who makes impossible a happening of the condition precedent may not take advantage of it, and avoid its liability on the contract.” Babe, Inc. v. Baby’s Formula Service, Inc., 165 So.2d 795, 798 (Fla. 3d DCA 1964). Accord, Restatement (Second) of Contracts § 251, Comment b (1973); 5 Williston, A Treatise on the Law of Contracts § 699 (3d ed. 1961); contra, Thomson v. Kyle, 23 So. 12, 39 Fla. 582 (1897); see also, Dauer v. General Health Services, Inc., 317 So.2d 456, 457-58 (Fla. 3d DCA 1975); Maritime Construction Co. v. Benda, 262 So.2d 20, 22 (Fla. 1st DCA 1972).

The ruling of the court below which resolved the liability issue in appellee’s favor is reversed; we similarly reverse that portion of the order addressing appellants’ damages; finally, we remand for resolution of the damages issue upon proper evidentia-ry predicate.

Reversed and remanded.


text:
    Jewel Halker McGANN, Appellant, v. Gerald E. HALKER, Appellee.
    Nos. 80-644, 80-402.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    Cheves & Rapkin and Charles J. Cheves, Venice, for appellant.
    Sylvester P. Adair, Homestead, for appel-lee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is an appeal by the ex-wife from a series of orders thwarting her attempts to enforce a money judgment obtained for alimony arrearages. It appears that the order she was attempting to enforce was misfiled by the county clerk’s office, and that subsequent orders were thus erroneously entered in other courts.

We vacate all orders entered subsequent to the June 22, 1979 final order entered by Judge Rubin, with leave to appellant to take appropriate action for enforcement of such order.


text:
    Noel George ROBERTS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-916.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    Rehearing Denied Dec. 17, 1980.

      Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Defendant Noel Roberts appeals his convictions for armed robbery and display of a firearm during the commission of the robbery entered pursuant to his plea of no contest with a reservation of his right to appeal the court’s denial of his motion to suppress. He contends the evidence failed to prove he voluntarily consented to the search by an officer who stopped his car in response to a BOLO (be on the lookout) for two males with a stolen credit card. We affirm.

Testimony relating to the issue of consent was conflicting. The officer testified that when he asked defendant Roberts if he could search the car, Roberts replied, “Sure, I don’t have any credit cards.” Defendant Roberts testified, on the other hand, that he replied, “I don’t know anything about it and I’m not going to let you search my car.”

It is fundamental that an appellate court does not sit as a trier of fact. Conflicts in the evidence must be resolved by the trial judge. O’Sullivan v. State, 335 So.2d 869 (Fla. 3d DCA 1976). An appellate court may not substitute its judgment. State v. Nova, 361 So.2d 411 (Fla.1978). The ruling by the trial court comes to this court “with the presumption of correctness”, and reasonable inferences and deductions are to be interpreted in a manner favorable to sustain the trial court’s ruling. McNamara v. State, 357 So.2d 410 (Fla.1978); e. g. Wigfall v. State, 323 So.2d 587 (Fla. 3d DCA 1975). We find that clear and convincing evidence supported the trial court’s decision.

We reject the state’s argument that the issue reserved for appeal is not dispositive and should not be considered. Brown v. State, 376 So.2d 382 (Fla.1979). Our examination of the record discloses that defense counsel included the in-court identification in his motion to suppress all the evidence. It appears to us that without any evidence or in-court identification, the state would be unable to proceed. The issue reserved is dispositive.

Affirmed.


author: HERSEY, Judge.

text:
    Stella BLOOM, Personal Representative of the Estate of Joseph Bloom, Deceased, Appellant, v. K & K PIPE AND SUPPLY CO., INC., a Florida Corporation, and Louis Barrish, Appellee.
    No. 79-1111.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1980.
    Rehearing Denied Dec. 22, 1980.

      Richard A. Goetz, of Hodgson, Russ, Andrews, Woods & Goodyear, Fort Lauder-dale, for appellant.
    Robert S. Levy, West Palm Beach, for appellee.
   HERSEY, Judge.

Stella Bloom, as personal representative of the estate of Joseph Bloom, filed a complaint against appellees to require continuation of certain payments pursuant to a contract between her late husband and appel-lees. The trial court granted a motion to dismiss for failure to state a cause of action and, in a final judgment, dismissed the complaint with prejudice. That judgment is the subject of this appeal.

Joseph Bloom sold all of the corporate stock of K & K Pipe and Supply Co., Inc. to Louis Barrish. Pursuant to a side agreement between the seller, the buyer and the corporation, the seller, Bloom, was to receive weekly payments of $48.08 over a ten year period on certain conditions. The contract requirements were as follows:

1. (a) BLOOM agrees not to directly or indirectly operate or be employed by or be an officer, director or agent, whether for compensation or not, of a plumbing or pipe supply business, or any related business, for a period of ten (10) years and two (2) months (to and through 1/1/87) within all of Palm Beach County, Florida. BLOOM shall neither directly or indirectly compete in any way or hinder K & K herein, nor shall BLOOM sell any products to the current customers of K & K, be it plumbing supplies or any other related supplies whatsoever.
(b) BLOOM shall not at any time or in any manner either directly or indirectly, divulge, disclose or communicate to any person, firm or corporation in any manner whatsoever any information concerning any matters effecting or relating to the business of K & K, including without limiting the generality of the foregoing, any of its customers, the prices it obtains or has obtained from the sale of any of its items of stock or inventory, or any important and material information which would effect the successful conduct of the business of K & K.
(c) In consideration for the above, K & K shall pay to BLOOM the. sum of $2,500.00 per year, payable weekly commencing February 1, 1977 in the amount of $48.08 per week, and continuing on the 1st day of each week thereafter for so long as BLOOM is not in violation of any of the provisions of this Agreement; provided, however, that said covenant and payments shall terminate, if not before, on January 1, 1987. That as a condition for the payments provided herein, BLOOM agrees to answer any questions and respond to any request for information from K & K which relate to the business of K & K and/or in connection with any determination or investigation of whether or not BLOOM is in violation of the above-described covenant not to compete.

The parties each fulfilled their obligations under the contract for approximately one year, until Joseph Bloom died. The corporation and Barrish refused to make further payments on the basis that the contract was one for personal services and that the obligation to make payments was therefore extinguished by the death of Bloom.

Appellant contends that she, in her individual capacity, was a close business associate of Joseph Bloom and therefore stands in his shoes for purposes of measuring his continuing ability to perform the covenants imposed upon him by the contract. As an example, appellant postulates that an injunction would lie, at the behest of Barrish or the corporation, if she were to engage in a business which was in competition with the corporation. She argues that since the negative covenant against competition could thus be enforced despite the death of seller, Bloom, that the contract remains viable and therefore enforceable against the corporation.

The difficulty with appellant’s position and the weakness of her argument lies in the fact that the cases upon which she relies involve a conspiracy or some form of plan whereby the individual bound by the covenant not to compete is either directly or indirectly competing in violation of his covenant. This is true of West Shore Restaurant Corp. v. Turk, 101 So.2d 123 (Fla. 1958) where the court determined that a covenant not to compete was violated by the very individual bound by that covenant. It is also true of Wilson v. Pigue, 10 So.2d 561 (Fla. 1942), in which the court again found a direct violation. Appellant relies heavily on Yoo Hoo of Florida Corp. v. Catroneo, 175 So.2d 220 (Fla.3d DCA 1965) in support of her position that a third party not in privity with the contracting parties may be enjoined from using knowledge gained from the party who has covenanted not to compete to establish a business which in fact does compete. However, that case involved a complaint in which it was alleged that:

Steve and Lucy Catroneo owned and operated a business in Dade County, Florida, which distributed a non-carbonated beverage known as “Yoo Hoo” and that the Catroneos sold the business, including the good will, to plaintiff; that the defendant, Steve Catroneo, was retained as an employee in a position of trust, and thereafter conspired with Lucy Catroneo to injure the business by soliciting employees of the plaintiff to work for him in a new, competing business; that the Ca-troneos used plaintiff’s facilities, without permission, to bottle their own beverage; that the Catroneos used confidential business information acquired by the position of trust to injure the business and solicited the distributors and customers of the plaintiff; that the Catroneos had organized a new business to sell a chocolate beverage named “Zippy” and that they were soliciting the customers and accounts which were the basis of the good will sold by the Catroneos to the plaintiff. Id. at 221.

Clearly in Catroneo there were many allegations of direct and serious violations of that portion of the contract transferring the good will of the business to the purchaser. Those acting in concert with the contracting party would most certainly be subject to injunction to thwart further development of the conspiracy. We do not have a similar situation in the present case.

It is true that if appellees proved that Mr. Bloom was providing information to Mrs. Bloom who consequently engaged in competitive activity a court could enjoin that activity. What would be enjoined is not the direct violation of the covenant by Mrs. Bloom, but rather the indirect violation of the covenant being perpetrated by Mr. Bloom. As the foregoing cases illustrate, absent some element of conspiracy there is no basis for the enforcement of a negative covenant against an individual not a party to the contract. That being so, there is no mutuality and, at least as to the negative covenants, no viable contract.

Further, the appropriate test to determine if a contract was intended to survive the death of one of the contracting parties where the contract is otherwise silent on the issue, is whether the personal representative may perform as fully and as well as the decedent might have. In Frankel v. Bernstein, 334 So.2d 37 (Fla.3d DCA 1976) the applicable law was stated in the following language:

[W]here a contract is one which, according to its provisions and purposes, may not be as well and fully performed by the personal representative of a contracting party as by the decedent, it would be illogical to assume, in the absence of a provision to the contrary in the contract, that the parties should not have anticipated that upon death of such party during pendency of the contract (or as here prior to its inception), the representative of the deceased party need not perform, such as would result where performance is rendered actually impossible by an act of God. See Moon v. Wilson, 100 Fla. 791, 130 So. 25; Enid Corporation v. Mills, Fla.App. 1958, 101 So.2d 906.

In the instant case, the affirmative covenant required Mr. Bloom to “answer any questions and respond to any request for information from K & K. .. . ” This covenant became impossible to enforce because of Mr. Bloom’s death.

Since the contract contemplated only the personal performance of the decedent and prohibited only the decedent from performing certain actions, the purpose of the contract was frustrated by the death of Mr. Bloom. It therefore became unenforceable by either party and Mrs. Bloom could not state a cause of action based upon the contract. Accordingly, we affirm the trial court’s order granting the motion to dismiss with prejudice.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.


text:
    James SWEETING, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1325.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Rehearing Denied Dec. 24, 1980.

      Bennett H. Brummer, Public Defender and Lawrence J. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

In this appeal from a trial court order revoking his probation, defendant Sweeting contends that the order placing him on probation was void because it was entered by the trial court after the court had vacated a sentence of imprisonment. He contends the trial court lacked jurisdiction to mitigate his prison sentence to probation and that his subsequent violation of that probation is without effect. We reluctantly agree. Existing law requires that we accept his position as correct; we reverse the trial court.

Defendant Sweeting first pled guilty to burglary of a structure. Adjudication was withheld, and he was placed on probation for two years with a condition that he serve thirty weekends in the Dade County Stockade. Two months later, he was charged with violating his probation and, after a hearing, convicted. His probation was revoked, and he was sentenced on June 28, 1977 to serve three years in the state penitentiary. On July 21, 1977, the trial court vacated the adjudication and sentence of imprisonment and again withheld adjudication, placing defendant Sweeting on probation, this time for a period of three years with a special condition that he serve one year in the Dade County Jail. Subsequently, on June 1,1978, defendant was convicted of another violation of his probation, adjudicated guilty of the original burglary of a structure, and this time sentenced to five years imprisonment. It is this revocation which defendant now appeals, claiming that since the court lacked jurisdiction to vacate his first sentence of imprisonment (three years), the court’s subsequent actions, including the second revocation of probation, were void, and the original three year sentence of imprisonment can be his only sentence.

A trial court has no jurisdiction to mitigate a sentence of imprisonment to probation. Cuneo v. State, 335 So.2d 278 (Fla.1976); Stoddard v. State, 388 So.2d 11 (Fla. 2d DCA 1980); DeLaPaz v. State, 358 So.2d 1093 (Fla. 3d DCA 1978); State v. Mancil, 354 So.2d 1258 (Fla. 2d DCA 1978); State v. Sotto, 348 So.2d 1222 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1219 (Fla.1978); State v. Evans, 225 So.2d 548 (Fla. 3d DCA), cert. denied, 229 So.2d 261 (Fla.1969), cert. denied, 397 U.S. 1053, 90 S.Ct. 1393, 25 L.Ed.2d 668 (1970).

The reason is two-fold. First, the court loses jurisdiction to mitigate after sixty days. Fla.R.Crim.P. 3.800(b). Second, a trial court may reduce a sentence but may not vacate a sentence for the purpose of mitigation. State v. Evans, supra ; following Cuneo v. State, supra. The proposition that the granting of probation does not constitute the correction or reduction of a sentence is rooted in long-standing federal law. Whitfield v. United States, 401 F.2d 480, 482 (9th Cir. 1968); Phillips v. United States, 212 F.2d 327 (8th Cir. 1954); 24 C.J.S. Criminal Law § 1618(3) (1961). In Phillips v. United States, supra, the court discussed the effect of the comprehensive revision of Title 18 of the United States Code and indicated the importance of separating judicial functions relating to probation from executive functions pertaining to parole.

.. . The judicial power and the executive power over sentences are readily distinguishable. To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua judgment. To reduce a sentence by amendment alters the terms of the judgment itself and is a judicial act as much as the imposition of the sentence in the first instance.

Phillips v. United States, supra at 331 n. 5, quoting United States v. Benz, 282 U.S. 304, 311, 51 S.Ct. 113, 115, 75 L.Ed. 354 (1931). The court in Phillips concluded that Congress did not intend to empower a district court to suspend the execution of any part of a sentence of imprisonment imposed by a final judgment after the defendant had entered upon the execution of the sentence. Phillips v. United States, supra at 331. The court reasoned that parole authorities are in a better position to decide whether a federal prisoner has observed the rules of the institution in which he has been confined. The emphasis was directed to the actual commencement of sentence by the defendant.

A number of jurisdictions follow this rationale. They permit suspension of execution of sentence or probation after imposition of sentence, but only before execution of sentence has commenced. United States v. Teresi, 484 F.2d 894 (7th Cir. 1973); United States v. Zinkovich, 437 F.2d 760 (10th Cir. 1971); United States v. Ellenbogen, 390 F.2d 537 (2d Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968); Glouser v. United States, 340 F.2d 436 (8th Cir.), cert. denied, 381 U.S. 940, 85 S.Ct. 1776, 14 L.Ed.2d 704 (1965); Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960); In re Black, 66 Cal.2d 881, 428 P.2d 293, 59 Cal. Rptr. 429 (1967); People v. Helton, 91 Cal.App.3d 987, 154 Cal.Rptr. 482 (1979); Coffey v. County Court of County of Jefferson, 177 Colo. 81, 492 P.2d 839 (1972). The Supreme Court has defined commencement of execution of a sentence as “. . . immediately after imprisonment began”. United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928).

In the case at bar, defendant Sweeting had not begun to serve his sentence since he had not yet been delivered to the custody of the state prison. In the federal courts and in a number of other jurisdictions, the trial court would therefore still have retained jurisdiction to vacate or suspend the imposed sentence and to place the defendant on probation.

Florida courts, however, construing Rule 3.800, Florida Rules of Criminal Procedure, have consistently held that the trial court loses jurisdiction to reduce a sentence to probation once sentence has been imposed. Cuneo v. State, supra; Stoddard v. State, supra. Under that construction, the trial court lacked jurisdiction to enter the July 21, 1977 order vacating the three year sentence and placing defendant on probation.

The state argues that defendant is estopped from challenging the July 21,1977 order since he accepted the benefit of being placed on probation, raising his present claim only after losing that benefit. Appel-lee relies on King v. State, 373 So.2d 78 (Fla. 3d DCA 1979). In King, the defendant was incorrectly sentenced to a three year period of imprisonment with the last two years suspended for a period of probation for an offense requiring a mandatory three year sentence of imprisonment. After violating his probation, King was sentenced to thirty years in prison. He then challenged the legality of his first sentence. This court held that he was estopped to contest the original sentence.

King is distinguishable. The trial court in King acted within its jurisdiction when it sentenced the defendant even though the sentence was illegal. The doctrine of estop-pel cannot furnish jurisdiction where none exists. The state’s argument is without merit.

Because the trial court lacked jurisdiction to vacate the original sentence of imprisonment, defendant Sweeting’s subsequent probation violation will earn him no additional punishment. We reiterate the prevailing law: a court may not reduce a sentence of imprisonment to probation as a form of mitigation.

For these reasons, we reinstate the judgment and sentence imposed June 28, 1977. The orders of July 21,1977 and June 1, 1978 are vacated. Defendant is entitled to credit for time served after June 28, 1977.

Reversed and remanded.

SCHWARTZ, Judge

(dissenting).

I acknowledge both the force of the reasoning contained in Judge Baskin’s excellent opinion, and the fact that my conclusion is directly contrary to Stoddard v. State, 388 So.2d 11 (Fla. 2d DCA 1980). I would nevertheless hold that, inasmuch as the trial court acted within the time period provided by Fla.R.Crim.P. 3.800(b), it did not totally lack subject matter jurisdiction over Sweeting’s own motion to mitigate and that the defendant is consequently estopped to claim that there was any other so-called “jurisdictional” error in granting that motion. See, King v. State, 373 So.2d 78 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1197 (Fla.1980); Smith v. State, 345 So.2d 1080 (Fla. 3d DCA 1977), cert. denied, 353 So.2d 678 (Fla.1977); North Miami General Hospital, Inc. v. Kovens, 318 So.2d 567 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 19 (Fla.1976); In re Estate of Dalton, 246 So.2d 612 (Fla. 3d DCA 1971), cert. denied, 252 So.2d 800 (Fla.1971); Shurden v. Thomas, 134 So.2d 876 (Fla. 1st DCA 1961); see generally, State v. Belien, 379 So.2d 446 (Fla. 3d DCA 1980); Oliver v. State, 379 So.2d 143 (Fla. 3d DCA 1980); Buckbee v. State, 378 So.2d 39 (Fla. 3d DCA 1979) (Schwartz, J., dissenting).

      . Since the trial court acted within sixty days, that provision is not at issue here.

      . The pertinent sections analyzed by the court are 18 U.S.C. §§ 3651, 4082, 4161, 4202 (1948).


author: NESBITT, Judge. BASKIN, Judge

text:
    E. Y., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1859.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.

      Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto and Steven R. Jacob, Asst. Attys. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

The appellant, pursuant to Section 812.13, Florida Statutes (1977), challenges his adjudication of delinquency arising out of robbery charges filed against him. Appellant contends the evidence is insufficient to show that the robbery was accompanied by any force or violence. McCloud v. State, 335 So.2d 257 (Fla.1976); Mims v. State, 342 So.2d 116 (Fla. 3d DCA 1977); Fla.Std. Jury Instr. (Crim.) (Robbery) 2.06 and 2.07.

The pertinent testimony showed that the appellant snatched a purse from the hand of the victim, an elderly woman who was walking on a sidewalk on Miami Beach. She was confronted by the defendant and his companion on the sidewalk. The victim described the scene as “a very small sidewalk, and on one side are the gates and on the right side are the cars, and I couldn’t go anywhere.” She testified that the defendant approached on the left “[a]nd this boy took my purse out of my hand [referring to the defendant]. I was scared and I couldn’t see anything, and I was in a state of shock for a moment.”

It is obvious that upon having her path blocked by the defendant and his companion, this elderly lady was intimidated at the moment of, or slightly prior to, this event. On cross-examination, the victim indicated that her state of mind described above occurred contemporaneously with the act. Under these circumstances, we find the testimony was sufficient to show that the violence or intimidation preceded or was contemporaneous with the taking. Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922).

The case sub judice is similar to Flagler v. State, 198 So.2d 313 (Fla.1967) where the victim of the alleged robbery was put in fear prior to the taking of her property. In Flagler, a housewife was driving with her four-year-old son and had stopped her car at a stop sign when the defendant furtively entered her car and reached for her pocketbook. The victim first became aware of the defendant’s presence as she attempted to change gears and saw his hand reaching for her pocketbook. Justice Thomas, writing for the court, observed that:

We think that in this setting the mother would have been less than human if she had not been frightened out of her wits and that the fear was generated when she saw a strange hand reaching for her purse at about the time she became conscious of the petitioner’s presence.

198 So.2d at 314.

In McCloud v. State, 335 So.2d 257 (Fla.1976), Justice England, speaking for the court, recognized the “nice” distinctions between robbery and larceny. In the present case, these nuances became a question of fact to be resolved by the trier of fact. In our appellate posture, we must assume that the trier of fact “believed that credible testimony most damaging to the defendant and drew from the facts established those reasonable conclusions most unfavorable to the defendant.” Parrish v. State, 97 So.2d 356, 358 (Fla. 1st DCA 1957), cert. denied, 101 So.2d 817 (Fla.1958). See also, Jefferson v. State, 298 So.2d 465 (Fla. 3d DCA 1974). Consequently, this court will not substitute its judgment for that of the trier of fact nor pit its judgment against those determinations of fact properly rendered by the trier of fact. State v. Smith, 249 So.2d 16 (Fla.1971). All conflicts and reasonable inferences therefrom are resolved to support the judgment of conviction. Wooten v. State, 361 So.2d 167 (Fla. 3d DCA 1978); Dawson v. State, 338 So.2d 242 (Fla. 3d DCA 1976); Starling v. State, 263 So.2d 645 (Fla. 3d DCA), cert. denied, 268 So.2d 905 (Fla.1972).

Next, the appellant asserts the trial court erred in delegating authority to his counsel- or to fix restitution. The dispositional order of this court provided: “Further, said child is to pay a proportionate restitution to the victim in the amount deemed appropriate by his counselor.”

In Fresneda v. State, 347 So.2d 1021 (Fla.1977), our Supreme Court held that, prior to restitution being ordered, a defendant must be given notice of the proposed restitution order as well as an opportunity to be heard as to the amount. Additionally, the authority to determine the amount cannot be delegated to the probationer’s supervisor. McClure v, State, 371 So.2d 196 (Fla. 2d DCA 1979); Kroenke v. State, 366 So.2d 46 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla.1979).

For the foregoing reasons, the appellant’s adjudication of delinquency is affirmed; the order delegating judicial authority to the juvenile’s counselor to determine the amount of restitution is reversed with directions to afford the juvenile an evidentiary hearing as to the amount of restitution prior to any adjudication by the court.

Affirmed in part and reversed in part.

BASKIN, Judge

(concurring in part and dissenting in part).

I concur in the opinion insofar as it pertains to the question of restitution. I respectfully dissent, however, from the determination that the offense for which defendant was adjudicated delinquent was proved to be robbery.

In my view, the principle reiterated in McCloud v. State, 335 So.2d 257 (Fla.1976), applies: “Where no force is exerted upon the victim’s person, as in the case of a pickpocket, only a larceny is committed.” In the case at bar, defendant neither exerted force before or during the taking, nor induced the victim to fear for her physical safety. Montsdoca v. State, 84 Fla. 82, 93 So. 157, 159 (1922). The victim did not become frightened until after the taking, according to her response on cross-examination:

Q: The first time that you realized anything was happening was after they took your purse?
A: Right, I was in shock. And then I screamed.

“Picking a pocket or purse snatching is not robbery if no more force or violence is used than is necessary to physically remove the property from a person who does not resist. But if the victim resists in any degree and this resistance is overcome by the physical force of the offender, the crime of robbery is complete.” Fla.Std. Jury Instr. (Crim.) (Robbery) 2.07.

For these reasons, I would reduce the adjudication of delinquency for robbery to an adjudication of delinquency for petit larceny.


text:
    Robert S. McCAIN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2066.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Alfonso C. Sepe and Alan R. Soven, Miami, for appellant.
    Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and NESBITT, JJ.
   HENDRY, Judge.

Robert McCain was charged by information with conspiracy to sell, deliver, possess or possess with intent to sell or deliver marijuana in violation of Section 777.04, Florida Statutes (1979). The information charged that McCain and a John Doe (known as “Tommy”) conspired with each other and with Ron Braswell. Tommy was never located or arrested. Defendant McCain was tried without a jury and convicted; the conviction did not specify with whom McCain had conspired.

The undisputed evidence reveals that Ron Braswell, acting undercover for the state, established himself as a dealer in marijuana. Defendant and Tommy went to Bras-well’s office where the ensuing conversation was recorded by Braswell. At trial, this tape was admitted into evidence by stipulation of the parties. While Tommy remained in the waiting room, the defendant and Braswell discussed the purchase of a large quantity of marijuana by the defendant for resale. When asked how much he was interested in purchasing, the defendant said he would check and called Tommy into the room. At this point the taped conversation proceeded as follows:

McCain: Ron, this is Tommy.
Braswell: Hi, Tommy.
McCain: We’re talking about 500 to start. Ron said how much money, for example, could these guys come up with, say earnest money?
Tommy: Okay. I suppose-you’re talking about 500. They could probably come up with enough to cover 200 pounds of it. I’ve been along the figure of 400 because the guy that usually does the transporting of it uses his own vehicle about all the time. He holds 400 pounds in it.
McCain: So we want four instead of five, so we can pay for half of it up front.
Braswell: All right, may be able to put this together tonight.
McCain: Beautiful.

After Tommy left the room, the conversation continued. At one point the defendant told Braswell:

McCain: I told Tommy, I said, now what we’ll do is do this pot deal with Ronny, then I want him to have first crack on the ki’s, and his people have agreed to that. They don’t know your name or anything. Of course, I told them, I said, I’ll talk to Ron and get this pot deal going.. ..

Defendant assigns as error the trial court’s denial of his motion for judgment of acquittal at the close of the state’s case. Specifically, defendant argues that the evidence was insufficient to prove the existence of an agreement or conspiracy between Tommy and the defendant. Therefore, the defendant reasons, the conviction must be overturned on the authority of King v. State, 104 So.2d 730 (Fla.1958), which holds that where one of two persons who conspire to do an illegal act is an officer acting in the discharge of his duties, the other person cannot be convicted on a charge of conspiracy. We have carefully examined the record in light of the contentions presented and find no error has been shown.

We first address defendant’s argument that the state failed to prove the existence of an agreement between the defendant and Tommy. This court has previously considered the nature of proof necessary in a conspiracy case. As defendant points out, an agreement is the essential element of the crime of conspiracy. However, direct proof of an agreement is not necessary to establish a conspiracy; the jury is free to infer from all the circumstances surrounding and accompanying the act that the common purpose to commit the crime existed. State v. Lamb, 348 So.2d 403 (Fla. 3d DCA 1977). We have also held that it is not necessary to prove a specific conversation in which an agreement was made:

A person charged with a crime may be convicted solely on the basis of circumstantial evidence.... Proof of a formal agreement is not necessary to establish the existence of a conspiracy.... Indeed it is well recognized that the existence of a conspiracy or confederation can and will be inferred from circumstantial evidence as indicative of an overall plan.

Borders v. State, 312 So.2d 247 (Fla. 3d DCA 1975), cert. denied 327 So.2d 31 (Fla.1976) (citations omitted).

In the present case, the record reveals not only circumstantial evidence indicating a common purpose to commit the crime, but also a specific agreement between the defendant and Tommy. We find that there was sufficient evidence from which the trial judge could have concluded that the defendant conspired with Tommy to sell, possess or deliver marijuana.

Defendant’s remaining contention, that King v. State, 104 So.2d 730 (Fla.1958) requires reversal, must also fail. In King, the Florida Supreme Court reversed the conspiracy conviction of two defendants upon a finding that although they were charged with conspiring with each other and with a government agent to violate the gambling statutes, the only conspiracy shown by the evidence was a conspiracy with the agent. The government agent in King was to perform an act essential to the crime charged as the object of the conspiracy, and since there was no evidence tending to show that the defendants ever conspired with each other, the court reasoned that the convictions must be reversed. The natural conclusion reached was that there can be no conspiracy where one of the two conspirators lacks the requisite criminal intent; the court drawing a distinction between the situation in King and cases where there is evidence that the defendants conspired with one another as well as the government agent.

Since we have concluded that there was sufficient evidence from which the trier of fact could have found that the defendant conspired with Tommy as well as with the agent, we are satisfied that the instant case is distinguishable from King v. State, supra. Accordingly, the conspiracy conviction is affirmed.

Affirmed.


text:
    Buford Lee JENRETTE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-438.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

Pursuant to our decision affirming his convictions on the merits in Jenrette v. State, 373 So.2d 718 (Fla. 3d DCA 1979), the defendant filed a motion under Fla.R. Crim.P. 3.850 alternatively seeking to vacate either the judgment and sentence for aggravated battery committed with a firearm, or the judgment and concurrent sentence on the separate charge of possession of a firearm in the commission of the aggravated battery. The trial judge set aside only the sentence on the possession charge and otherwise denied the motion. Jenrette has appealed, primarily arguing that the aggravated battery, instead of the possession, charge should have been vacated. We reject this contention.

Under the doctrine of State v. Finder, 375 So.2d 836 (Fla.1979), a defendant may not be convicted of two or more offenses which involve the same criminal acts. In such an instance, only a conviction for the greater charge may stand. Both aggravated battery, Sec. 784.045, Fla.Stat. (1979) and possession of a firearm in the commission of a felony, Sec. 790.07(2), Fla.Stat. (1979) are second degree felonies. However, under Sec. 775.087(2), Fla.Stat. (1979), only the aggravated battery, and not the possession charge requires a three-year minimum mandatory sentence. Because of the manifestly more severe sentencing consequences of aggravated battery, we conclude that it is the “greater” of the two crimes, and that the trial judge therefore properly declined to vacate that conviction.

The appellant’s fail-back position is that the adjudication, as well as the sentence, on the possession count should be set aside. On the authority of State v. Pinder, supra, and Hegstrom v. State, 388 So.2d 1308 (Fla. 3d DCA 1980), we agree and order that this be done after remand.

Affirmed in part, reversed in part.

      . In accordance with the statutory mandate, Jenrette was given eight years, subject to the three-year mandatory requirement, for aggravated battery; and a five-year concurrent sentence, with no condition, on the possession count.

      . Insofar as their elements are concerned, the crimes of which Jenrette was found guilty, aggravated battery committed by shooting the victim with a firearm and the possession and use of a firearm in the commission of the felony of aggravated battery, are identical. Neither is, in the usual sense, a “lesser included offense” of the other.