text:
    Peter B. HANNAH d/b/a International Servicetrade Co., Appellant, v. JAMES A. RYDER CORPORATION, a Florida Corporation, Appellee.
    No. 79-1198.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 1980.

      Mac A. Greco, Jr., Tampa, for appellant.
    Greenberg, Taurig, Hoffman, Lipoff, Quentel & Wolff and Richard G. Garrett, Miami", for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

On May 9, 1977, the plaintiff-appellant, Peter B. Hannah, sued James A. Ryder Corporation to recover over $150,000 on an oral agreement to pay a 15% sales commission for finding Iranian purchasers of the defendant’s cranes. The trial court entered summary judgment against Hannah on the ground that Ryder had conclusively established its affirmative defense of accord and satisfaction. The basis of the ruling was that Hannah was deemed by operation of law to have accepted Ryder’s offer to compromise the claim by cashing three checks, totalling $4,000, which had been tendered as partial payments towards a proposed $20,-000 settlement. On the facts shown by the record, we find error in that conclusion and therefore reverse the judgment below.

The offer of compromise which gave rise to the defendant’s claim of accord and satisfaction was contained in a letter to Hannah from a vice-president of Ryder dated May 11, 1976. It stated, in part:

We propose to pay your firm a Finders Fee of $20,000.00. Enclosed is our check for $2,000.00. The balance would be paid at $1,000.00 per month for eighteen (18) months. Payment of the $20,000 would constitute full satisfaction to you for past or future sales of our equipment by us. If this is acceptable to you, please signify your acceptance by depositing the en closed check and signing copy of this letter. Upon receipt of the accepted letter we will commence the subject monthly remittance to you. If not accepted, please return the enclosed check and we will be happy to discuss the matter further with you either here in the United States or in Iran. [e. s.]

Hannah did not execute a copy of the letter in the space provided. Although he cashed the enclosed $2,000 check, he did so with the following endorsement:

“This check is not cashed as partial payment and is not in accordance [sic] and satisfaction to my claim against Ryder Corp.”

A month later, on June 15, 1976, Ryder’s president sent Hannah another $1,000 check with an accompanying letter which provided:

“Your acceptance of the two checks to-talling $3,000.00 will, of course, indicate your approval of our offered compensation and, in that event, we will expect you to sign and return the acceptance copy of our offer, previously mailed to you.”

Again, the plaintiff did not sign the “acceptance copy” of the earlier offer but negotiated the check over the legend that

“This check is not cashed in satisfaction and accord of claim I have against Ryder Corp.”

On July 13, 1976, Hannah sent Ryder a letter which unequivocally, if ungrammatically, said

“I have not intention of accepting the present checks unless they do not constitute my agreeing to yóur unfair terms.”

The final pre-lawsuit Ryder-to-Hannah communication was dated August 9, 1976; it transmitted another $1,000 check “representing the third payment on your fee leaving a balance of $16,000.00 due át $1,000.00 per month for sixteen months.” The plaintiff again endorsed the check with a statement of protest identical to the previous one. Ryder neither made nor tendered any further payments towards the $20,000 “settlement.” Nevertheless, the trial judge found in the order under review:

. that defendant is entitled to judgment as a matter of law inasmuch as the instant action asserts unliquidated claims and evidence of record establishes the validity of the defense of accord and satisfaction, including the existence of an agreement between the parties, regarding the subject claims which has not been breached by defendant and operates as a bar to the claim alleged herein.
[Defendant’s Motion for Summary Judgment is hereby granted and the cause is finally dismissed as to the defendant . . . with the understanding and stipulation by defendant that it is currently indebted to the plaintiff, pursuant to the defense of accord and satisfaction, in the amount of SIXTEEN THOUSAND ($16,000.00) DOLLARS.

We think it apparent that these circumstances fall far short of conclusively demonstrating the existence, as a matter of law, of an accord and satisfaction which bars the plaintiff’s present claim. See Holl v. Talcott, 191 So.2d 40 (Fla.1966). The defense of accord and satisfaction essentially involves the issue of whether the parties mutually intended to effect a settlement of an existing dispute by entering into a superseding agreement. Ordinarily, that issue, in turn, is one of fact which may not properly be resolved by summary judgment. E. g., Burley v. Mummery, 222 So.2d 261 (Fla. 3d DCA 1969); see First National Bank of Upper Keys v. Caribe Equipment Corp., 378 So.2d 19 (Fla. 3d DCA 1979), and cases cited. Ryder, however, citing Sanford v. Abrams, 24 Fla. 181, 2 So. 373 (1887) and McGehee v. Mata, 330 So.2d 248 (Fla. 3d DCA 1976), invokes the established doctrine that an accord and satisfaction results as a matter of law when an offeree accepts a payment which is tendered only on the express condition that its receipt is to be deemed a complete satisfaction of a disputed claim. See also Pino v. Lopez, 361 So.2d 192 (Fla. 3d DCA 1978), cert. dismissed, 365 So.2d 714 (Fla.1978). It is also the common law rule that when one cashes a check received under such circumstances, he may not avoid the effect of that action—as Hannah attempted to do—by purporting to receive the funds only “under protest.” See 1 Am.Jur.2d Accord and Satisfaction §§ 21-22 (1962). For three separate reasons, however, these principles do not—certainly not as a matter of law—serve to support the judgment below.

1. In United States Rubber Products v. Clark, 145 Fla. 631, 200 So. 385, 390 (1941), the supreme court stated:

“. . .it should be observed that the debtor or offeror must make it dear that the tender he sends is offered only on condition that it is taken in full payment. See Bryan, Keefe & Co. v. Howell, 92 Fla. 295, 109 So. 593; 6 Williston on Contract (1936) 5220, Sec. 1856.” [e. s.]

Accord, cases collected, Annots., 34 A.L.R. 1035,1052-53 (1925), 75 A.L.R. 905, 919-922 (1931); 1 Am.Jur.2d Accord and Satisfaction § 34 (1962). The facts of the present case do not satisfy either of these stated conditions to the application of the rule upon which Ryder relies:

(a) The checks Hannah cashed represented only installments and were not even avowedly tendered in full or complete satisfaction of his outstanding claim. To the contrary, the May 11, 1976 letter specifically stated that only “[p]ayment of the [entire] $20,000 would constitute full satisfaction.”
(b) Ryder surely did not, as required, explicitly and unambiguously state that cashing the check or checks would alone be sufficient to establish a binding agreement. Instead, the defendant told Hannah to indicate his acceptance by depositing the check “and signing copy of this letter”—something he admittedly never did.

On two grounds, therefore, the plaintiff’s mere negotiation of the three checks did not bind him, as a matter of law, to the $20,000 settlement only proposed by Ryder. As was said in Burley v. Mummery, supra, 222 So.2d at 264:

“In the absence of a conclusive showing of a genuine meeting of the minds of these parties as to the intended effect of the check there can be no summary final judgment.”

2. Assuming, arguendo, however, that a settlement agreement was initially effected, it is established that

“[e]ven if a check or other remittance is tendered upon the condition that it be accepted in full satisfaction of the claim, the debtor may waive the condition by failing to insist upon it, or he may indicate by his conduct after the remittance has been accepted that he does not consider it to be a final settlement of the claim." [e. s.]

1 Am.Jur.2d Accord and Satisfaction § 15 (1962). This statement of the law also applies here. As we have seen, Ryder did not remit any further payments after Hannah had, for the fourth time, insisted that they would be accepted only without agreeing to the “unfair” settlement it had proposed. Plainly, a jury could find that Ryder’s subsequent failure to pursue the alleged agreement constituted a withdrawal or abandonment of the undertaking in acquiescence to its clear rejection by the plaintiff. See Perryman v. Bear Mfg. Co., 29 F.2d 835 (7th Cir. 1929); 1 C.J.S. Accord and Satisfaction § 33 c. (1936), and cases cited.

3. Finally, as the law is summarized in 10 Fla.Jur.2d Compromise, Accord, and Release § 7 (1979):

Except in those cases where the new agreement is itself accepted as satisfaction[] the failure to perform an act required by a new agreement entered into in satisfaction of a claim leaves the new agreement a mere executory accord, without satisfaction, and does not bar an action on the original claim. In other words, the new agreement must be executed in order to have the effect of satisfaction, and if it is not executed, the new agreement does not bar an action based upon the original agreement. Partial performance of the new agreement is also insufficient to constitute an accord and satisfaction, . [e. s.]

As the judgment below itself shows, Ryder acknowledgedly did not forward sixteen $1,000 monthly installments required by the terms of the asserted “accord.” Thus, an application of this rule precludes a finding that there was also an enforceable “satisfaction” of the plaintiff’s claim. E. g., May v. Gamble, 14 Fla. 467 (1874); Vance v. Scanlon, 121 So.2d 709 (Fla. 2d DCA 1960), and cases cited.

For these reasons, the summary judgment is reversed and the cause remanded for trial.

Reversed and remanded.

      . The entire letter was as follows:
      Dear Mr. Hannah:
      It is obvious that we have had a lack of agreement with your company.
      It does not appear that it would be useful to explore the reasons for this problem and we would like to propose a solution at this time. As you know, our inventory liquidation has been without profit due to two factors. The first being interest paid to carry the inventory during liquidation and secondly a considerable amount of expense incurred in export preparation. As you know, our inventory was originally intended for domestic use and there is considerable expense involved in preparing equipment to avoid the damage and deterioration which may result from ocean shipment.
      We propose to pay your firm a Finders Fee of $20,000.00. Enclosed is our check for $2,000.00. The balance would be paid at $1,000.00 per month for eighteen (18) months. Payment of the $20,000 would constitute full satisfaction to you for past or future sales of our equipment by us.
      If this is acceptable to you, please signify your acceptance by depositing the enclosed check and signing copy of this letter. Upon receipt of the accepted letter we will commence the subject monthly remittance to you. If not accepted, please return the enclosed check and we will be happy to discuss the matter further with you either here in the United States or in Iran.
      Sincerely,
      /s/ Donald W. Freeman
      Vice President
      DWF: sd
      Enclosures
      Acknowledged and Accepted:
      Peter B. Hannah Date

      . It seems rather obvious that this endorsement was the result of advice based upon the supposed effect of U.C.C. § 1-207, which is discussed infra at note 5.

      . See note 5, infra.

      . There was no claim or indication that Hannah’s negotiation of the checks had this effect.

      . Because of our holding that, under established principles, the issue of whether an accord and satisfaction arose must be submitted to a jury, we deem it inappropriate to consider whether we agree with the second district’s holding in Miller v. Jung, 361 So.2d 788 (Fla. 2d DCA 1978) that § 1-207 of the U.C.C., § 671.-207, Fla.Stat. (1977) has effected a complete reversal of the common law rule cited supra; so that a payee who cashes a check tendered in full payment may now avoid an accord and satisfaction by endorsing it “under protest” or with a reservation of rights. But see Jahn v. Burns, 593 P.2d 828 (Wyo.1979); Fritz v. Marantette, 404 Mich. 329, 273 N.W.2d 425, 428-429 (1978); Rosenthal, Discord and Dissatisfaction: Section 1-207 of the Uniform Commercial Code, 78 Columbia L.Rev. 48 (1978); Hawkland, The Effect of U.C.C. § 1-207 on the Doctrine of Accord and Satisfaction by Conditional Check, 74 Com.L.J. 329 (1969); Official Comment 1 to U.C.C. § 1-207.


source: Caselaw Access Project

author: BASKIN, Judge.

license: Public Domain

text:
    Nettie BYER, Appellant, v. FLORIDA REAL ESTATE COMMISSION, Appellee.
    No. 79-1200.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 1980.
    Weinsoff & Weinsoff and Robert D. Klausner, Miami, for appellant.
    Salvatore A. Carpino, Tallahassee, for ap-pellee.

      Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

This appeal is predicated upon an order of the Florida Real Estate Commission suspending Appellant Byer’s real estate license for six months upon a finding that she violated Sections 475.25(l)(a) and 475.25(3), Florida Statutes (1975). The Florida Real Estate Commission found that appellant had improperly solicited advance listing fees by quoting unrealistically high prices at which the property could not be sold; that she knew or should have known that her employer Continental Marketing Services, Inc. was organized for the primary purpose of obtaining listings of property for a fee; that she knew or should have known that Continental’s representations that the property would be sold for several times the purchase price were false; and that she had breached a duty to deal fairly and honestly with clients by ending her involvement in the transaction immediately upon receiving her share of the advance listing fee.

We find that the Florida Real Estate Commission improperly rejected the hearing officer’s recommendations that the Commission take no action against appellant’s license, and reverse.

Deposition testimony disclosed that during the period appellant was in the employ of Continental Marketing Services as a broker salesman, two property owners were contacted by telephone by a caller who represented herself as Nettie Byer. The caller stated that upon payment of an advance listing fee, Continental would list the property, advertise it widely within the United States and abroad, and sell it for several times the original purchase price. The fees were paid, contracts executed, and the property was advertised. No guarantees of sale were made by the caller, but evidence was presented that the properties were not worth the prices suggested by the caller as the prices at which the property could be sold.

The Florida Real Estate Commission found that appellant had been in Continental’s employ for almost five months and had been registered as a real estate salesman for 12 years. It concluded that as a result of the length of time she had been engaged in real estate activities and in the employ of Continental, she knew or should have known that the quoted prices were unrealistic.

The Commission also concluded that evidence pertaining to the identification of Appellant Byer, which was excluded by the hearing officer, should have been admitted in accordance with Section 120.58(l)(a), Florida Statutes (1977). It contends that appellant’s alleged self-identification, coupled with her association with Continental at the time the phone calls were made, establishes her identity as the caller.

1. Caller self-identification is not competent evidence of identity. Killingsworth v. State, 90 Fla. 299, 105 So. 834 (1925); Price v. State, 208 Ga. 695, 69 S.E.2d 253 (1952); and Burton v. Pacific Mutual Life Insurance Co., 368 Pa. 613, 84 A.2d 310 (1951). Although hearsay evidence may be used to supplement or explain other evidence, it is not sufficient in itself to support a finding unless it would be admissible over objection in civil actions. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); § 120.58(1)(a), Fla.Stat. (1977). See also: Astore v. Florida Real Estate Commission, 374 So.2d 40 (Fla. 3d DCA 1979), and Pasco County School Board v. Florida Public Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977). Neither of the witnesses had talked with appellant prior to the incident involved in this case. Neither witness was able to identify the voice of the caller other than by the caller’s statement. The statements of the caller were therefore insufficient to identify appellant.

2. There is no evidence that appellant knew of any unlawful practice conducted by her employer, nor is there any evidence that Continental’s conduct was in any way fraudulent. In light of our finding that the evidence was insufficient to connect appellant with the telephone calls made to the witnesses, it is not necessary for us to consider whether appellant had knowledge of her employer’s conduct. We note in passing, however, that Brod v. Jernigan, 188 So.2d 575 (Fla. 2d DCA 1966) holds that fraud cannot be predicated on statements which are promissory in nature or constitute expressions of intention, so that even if appellant had knowledge of the conduct of Continental, no act on her part has been shown sufficient to constitute a violation of the statutes in question since appellant merely suggested prices to the witnesses, who were in no way guaranteed their property would be sold.

To summarize, the case before this court presents a total absence of evidence to support the decision of the Commission. Appellant was not properly identified as the caller, was not shown to have had knowledge of any unlawful activities by her employer, and she was not shown to have engaged in any unlawful act.

For the foregoing reasons, we reverse the decision of the Florida Real Estate Commission and reinstate appellant’s license.

      . The prices for the property involved purchase prices of $2,100 and $1,695 valued for sale at $16,000 and between $8,500 and $9,500 respectively.


author: PER CURIAM.

text:
    Nilza KALLOS, M.D., Appellant, v. Betty BLOUIN, Appellee.
    No. 79-1538.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 1980.
    George & Thompson, Miami, and R. Scott Boundy, North Miami, for appellant.
    Penzell & Diamond, Miami, and Barry J. Clyman, Coral Gables, for appellee.
    ■Before BARKDULL and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Blouin v. Ferguson, 372 So.2d 194 (Fla. 3d DCA 1979) and cases cited therein.


text:
    George ROBINSON, Individually and as Personal Representative of the Estate of Jean Robinson, Deceased, Petitioner, v. John GALE, Judge of the Circuit Court of the Eleventh Judicial Circuit, Respondent, and Allstate Insurance Company, Morris Beck, Eugene Willard Simmons, Joyce Simmons, Charles Kreiker, Eutychos Rolle and Industrial Fire and Casualty Company, Defendants below.
    No. 79-1922.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 1980.

      Alan Goldfarb and Joel Lumer, Miami, for petitioner.
    Weissenborn & Burr and Lee Weissen-born, Miami, for respondent.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

By this petition for prohibition/mandamus, which we treat as a timely petition for a writ of certiorari, see Fla.R.App.P. 9.040(c), we are asked to review an order of the trial court granting a motion for summary judgment on liability for the defendants [Eugene Willard, a/k/a Eugene Willard Simmons, Joyce Simmons and Allstate Insurance Company] in this wrongful death action.

We grant the petition for writ of certio-rari and quash the order under review upon a holding that said order constitutes a deviation from this court’s mandate, upon a prior appeal in this cause, which required the grant of a new trial herein as to the above defendants. Robinson v. Allstate Insurance Co., 367 So.2d 708 (Fla.3d DCA 1979). Compliance with our mandate in the trial court was a purely ministerial act which could not be departed from without our consent. O.P. Corp. v. Village of North Palm Beach, 302 So.2d 130 (Fla.1974); Modine Manufacturing Co. v. ABC Radiator, Inc., 367 So.2d 232, 236 (Fla.3d DCA 1979); Mendelson v. Mendelson, 341 So.2d 811, 813-14 (Fla.2d DCA 1977).

We confess that our prior opinion in this cause contains language which casts serious doubt on whether any evidence of negligence was adduced at the prior trial as to the defendants herein. Understandably, that language misled the trial court. Still, our mandate required a new trial in the cause, not a summary judgment for the above defendants. At such new trial, however, the trial court is not precluded from granting, if appropriate, a defense motion for a directed verdict.

The order under review is quashed and the cause remanded to the trial court with directions to order a new trial in this cause in accordance with our prior mandate herein.


author: HERSEY, GEORGE W., Associate Judge.

text:
    EQUIFAX CORPORATION, Colonial Life and Accident Insurance Co., and The Commercial Union Assurance Companies, Petitioners, v. The Honorable Richard H. COOPER, Circuit Court, Ninth Judicial Circuit and Mildred O. Hyman, Respondents.
    No. 78-2667/NT4-71.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.

      William D. Palmer and J. Gary Walker of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Orlando, for petitioners.
    Richard W. Bates of Richard W. Bates, P.A., Orlando, and Jesse F. Sparks, Orlando, for respondent, Mildred 0. Hyman.
   HERSEY, GEORGE W., Associate Judge.

This matter was commenced by the filing of an “Emergency Petition for Writ of Prohibition, or, in the alternative, Emergency Petition for Certiorari and Stay in Relation Thereto.”

By Order of this Court, dated December 15, 1978:

(1) respondent was commanded to show cause why the petition for writ of certiorari should not be granted;

(2) a stay of the order of the trial court was granted pending disposition of the petition for writ of certiorari; and

(3) the petition for writ of prohibition was denied. We now grant the petition for certiorari.

We are asked by petitioners to reverse an order of the trial court requiring the production of films and reports and related documents. These materials resulted from investigations of the plaintiff, respondent here, and were made by an agency engaged in that business. The record is clear and counsel for the defendants stated that the investigations were not made by or at the request of any defendant or any other party to this litigation. Thus, the literal language of Rule 1.280(b)(2), Florida Rules of Civil Procedure, the work product rule, excludes the application of that limited privilege here. We are urged by petitioners to go beyond that literal language, however, to adopt a rule that would make the work product limited privilege available where one or more of the parties has an interest in other but related litigation. We feel no compulsion to do so on the record before us.

An agent of the investigatory agency appeared pursuant to a subpoena duces tecum and presented three surveillance films, together with a report concerning the conditions of surveillance. The record indicates that no other materials in the possession or under the control of the agency or its representatives are to be used in the litigation. But more importantly to this determination, nowhere in the record is there any showing that the materials sought are “relevant to the subject matter of the pending action . . . [or] . appear(s) reasonably calculated to lead to the discovery of admissible evidence.” Fla. R.Civ.P. 1.280(b)(1). This rule must be satisfied before the work product rule becomes operative. The gratuitous speculation of counsel, contained in a document filed with this Court, as to the “possible” use of such material does not stand as a satisfactory substitute for some evidence of relevancy contained in the record. We reiterate for emphasis the fact that the materials sought were not prepared by or for any party to this action. The fact that the. report pertains to plaintiff is not a sufficient connection, standing alone, to support intrusion of the issue into this lawsuit. Any other rule would transform every lawsuit into a fishing expedition, and would seriously impede the orderly and expeditious disposition of litigation.

Accordingly, we grant the writ of certio-rari and quash the order under review and remand the cause to the trial court for further proceedings.

DOWNEY, JAMES C. and ANSTEAD, HARRY LEE, Associate Judges, concur.


text:
    Lois BEELER, Appellant, v. Robert W. BEELER, Appellee.
    No. 77-2724.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1980.
    John T. Carlon, Jr., Pompano Beach, for appellant.
    Perry S. Itkin, of Gibbs & Itkin, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. See Mills v. Mills, 339 So.2d 681 (Fla. 1st DCA 1976) and Zimmer v. Zimmer, 328 So.2d 525 (Fla. 4th DCA 1976).

ANSTEAD, MOORE and HURLEY, JJ., concur.


author: HURLEY, Judge.

text:
    NURSING CARE SERVICES, INC., Appellant, v. Mary DOBOS, Appellee.
    No. 78-1345.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1980.

      Robert C. Furr, Boca Raton, for appellant.
    Leo J. Fox, Boca Raton, for appellee.
   HURLEY, Judge.

Plaintiff, Nursing Care Services, Inc., appeals from that part of a final judgment which disallowed compensation for certain nursing care services. Our review of the record reveals substantial uncontradicted testimony supporting plaintiff’s theory of recovery and thus we remand for entry of an amended final judgment.

Mary Dobos, the defendant, was admitted to Boca Raton Community Hospital with an abdominal aneurysm. Her condition was sufficiently serious to cause her doctor to order around-the-clock nursing care. The hospital implemented this order by calling upon the plaintiff which provides individualized nursing services.

Mrs. Dobos received nursing care which in retrospect can be divided into three periods: (1) two weeks of in-hospital care; (2) forty-eight hour post-release care; and (3) two weeks of at-home care. The second period of care (the forty-eight hour post-release care) was removed as an issue at trial when Mrs. Dobos conceded that she or her daughter authorized that period of care. The total bill for all three periods came to $3,723.90; neither the reasonableness of the fee, the competency of the nurses, nor the necessity for the services was contested at trial.

The gist of the defense was that Mrs. Dobos never signed "a written contract nor orally agreed to be liable for the nursing services. Testifying about the in-hospital care, she said, “Dr. Rosen did all the work. I don’t know what he done (sic), and he says, I needed a nurse.” It is undisputed that Mrs. Dobos was mentally alert during her at-home recuperation period. Asked if she ever tried to fire the nurses or dispense with their care, she replied, “I didn’t. I didn’t know who — I thought maybe if they insist, the doctors insist so much, I thought the Medicare would take care of it, or whatever. I don’t know.”

After a non-jury trial, the court granted judgment for the plaintiff in the sum of $248.00, the cost of the forty-eight hour post-release care. It declined to allow compensation for the first and third periods of care, saying,

“. . . [Tjhere certainly was a service rendered, but based on the total surrounding circumstances, I don’t think there is sufficient communications and dealings with Mrs. Dobos to make sure that she knew that she would be responsible for those services rendered. . . . ”

We concur in the trial court’s determination that the plaintiff failed to prove an express contract or a contract implied in fact. It is our view, however, that the uncontradieted testimony provided by plaintiff and defendant alike, clearly established a contract implied in law which entitles the plaintiff to recover.

•Contracts implied in law, or as they are more commonly called “quasi contracts”, are obligations imposed by law on grounds of justice and equity. Their purpose is to prevent unjust enrichment. Unlike express contracts or contracts implied in fact, quasi contracts do not rest upon the assent of the contracting parties.' See generally, 28 Fla. Jur., Restitution and Implied Contracts.

One of the most common areas in which recovery on a contract implied in law is allowed is that of work performed or services rendered. The rationale is that the defendant would be unjustly enriched at the expense of the plaintiff if she were allowed to escape payment for services rendered or work performed. There is, however, an important limitation. Ordinarily liability is imposed to pay for services rendered by another only when the person for whose benefit they were rendered requested the services or knowingly and voluntarily accepted their benefits. Yeats v. Moody, 128 Fla. 658, 175 So. 719 (1937); Strano v. Carr & Carr, Inc., 97 Fla. 150, 119 So. 864 (1929); Taylor v. Thompson, 359 So.2d 14 (Fla. 1st DCA 1978); and Tobin & Tobin Insurance Agency, Inc. v. Zeskind, 315 So.2d 518 (Fla. 3d DCA 1975).

The law’s concern that needless services not be foisted upon the unsuspecting has led to the formulation of the “officious in-termeddler doctrine.” It holds that where a person performs labor for another without the latter’s request or implied consent, however beneficial such labor may be, he cannot recover therefor. Tipper v. Great Lakes Chemical Company, 281 So.2d 10 (Fla.1973). A notable exception to this rule, however, is that of emergency aid:

A person who has supplied things or services to another, although acting without the other’s knowledge or consent, is entitled to restitution therefore from the other if he acted unofficiously and with intent to charge therefore, and the things or services were necessary to prevent the other from suffering serious bodily harm or pain, and the person supplying them had no reason to know that the other would not consent to receiving them, if mentally competent, and it was impossible for the other to give consent or, because of extreme youth or mental impairment, the other’s consent would have been immaterial. 66 Am.Jur.2d, Restitution and Implied Contract, § 23.

In the case at bar it is unclear whether Mrs. Dobos, during the period of in-hospital care, understood or intended that compensation be paid. Her condition was grave. She had been placed in the hospital’s intensive care unit and thereafter had tubes and other medical equipment attached to her body which necessitated special attention. She was alone, unable to cope and without family assistance. It is worthy of note that at no point during the litigation was there any question as to the propriety of the professional judgment that the patient required special nursing care. To the contrary, the record demonstrates that the in-hospital nursing care was essential to Mrs. Dobos’ health and safety. Given these circumstances it would be unconscionable to deny the plaintiff recovery for services which fall squarely within the emergency aid exception. Tipper v. Great Lakes Chemical Company, supra.

The third period of care is less difficult. It is unquestioned that during the at-home recuperation, Mrs. Dobos was fully aware of her circumstances and readily accepted the benefits conferred. Given such facts, we believe the rule set down in Symon v. J. Rolfe Davis, Inc., 245 So.2d 278, 279 (Fla. 4th DCA 1971) must govern:

It is well settled that where services are rendered by one person for another which are knowingly and voluntarily accepted, the law presumes that such services are given and received in expectation of being paid for, and will imply a promise to pay what they are reasonably worth.

A patient’s unannounced misconception that the cost of accepted services will be paid by an insurer or Medicare does not absolve her of responsibility to bear the cost of the services.

As a postscript we note that Mrs. Dobos’ home recuperation was interrupted by her readmission to the hospital with an apparent heart attack. In this age of burgeoning malpractice actions it is not idle conjecture to ponder what her legal position might have been had the plaintiff unilaterally terminated its services at a time of vital need. To its credit, it did not and therefore it is entitled to just compensation. Accordingly, we remand the cause to the trial court with instructions to enter an amended final judgment for the plaintiff in the sum of $3,723.90 plus interest and court costs.

It is so ordered.

ANSTEAD and LETTS, JJ., concur.


author: BERANEK, Judge.

text:
    Johnny Mac GOODMAN, Appellant, v. STATE of Florida, Appellee.
    No. 78-1558.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1980.
    Rehearing Denied March 19, 1980.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals from a robbery conviction asserting as error the trial court’s denial of his motion for mistrial and denial of his motion for discharge based on an alleged violation of Rule of Criminal Procedure 3.191, the speedy trial rule. We find no error as to either point and in affirming wish to point out in regard to the second issue that the proof before the trial court was inadequate. Defendant testified in support of the motion for discharge but few facts were actually elicited. Apparently, defendant was originally tried and convicted for robbery and sentenced to life imprisonment. Defendant began serving his sentence and also sought appellate review. While the case was pending before the appellate court, defendant escaped from prison. He was eventually arrested in the State of New York. From the record we are unable to tell whether he was arrested by the New York City Police and held solely by virtue of the Florida escape charge, or whether he was arrested by Federal Authorities on a drug charge. No specific evidence was offered in this regard. While defendant was at large his initial conviction was reversed and a new trial ordered. Defendant appeared in the State of New York before a Federal Magistrate on unknown charges on at least two occasions and was released in the State of New York but subsequently arrested and eventually returned to Florida and again tried and convicted. The record before the trial court does not contain the dates and charges needed to make an intelligent and informed decision on the motion for discharge.

Under the circumstances of this case we conclude the burden of proof was shifted to appellant and that he failed to show availability for trial in accordance with Thigpen v. State, 350 So.2d 1078 (Fla. 4th DCA 1977). We further conclude appellant has failed to demonstrate reversible error before this court based on the record made in the trial court. The trial court’s denial of the motions for mistrial and for discharge are thus affirmed.

AFFIRMED.

HERSEY and GLICKSTEIN, JJ., concur.

      . The reason for defendant’s release was asserted to be delay on the State’s part in transporting him to Florida. While we adhere to Thigpen v. State, 350 So.2d 1078 (Fla. 4th DCA 1977), the record here is inadequate as to the actual delay involved and the reasons for it.


author: MOORE, Judge.

text:
    Doris LaMELLE, Appellant, v. BEL-AIR CONDITIONING CO., INC., a Florida Corporation; Freshair Corp., a Florida Corporation; Jules LaMelle, Individually; and Leonard Kitchman, Individually, Appellees.
    No. 78-1733.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1980.
    Arnold R. Ginsberg, of Horton, Perse & Ginsberg, and Ivan S. Benjamin, Miami, for appellant.
    Jennifer Hurst, of Tobias Simon, P. A., Miami, for appellees.
   MOORE, Judge.

Plaintiff appeals from a final order which granted defendants’ motion to strike plaintiff’s motion for summary judgment, granted judgment on the pleadings in favor of the defendants as to three counts of the complaint, and further granted summary final judgment for the defendants. On appeal, plaintiff only challenges the entry of summary final judgment as to the corporate defendants and the granting of the defendants’ motion to strike. We reverse in part.

Appellant contends she is entitled to third party contractual benefits under two “consultative employment agreements” entered into by her deceased husband, Daniel La-Melle, and appellee corporations. Her husband’s agreement with appellee Bel-Air Conditioning Co., Inc. provided in pertinent part:

The Company shall pay to LaMelle, and LaMelle shall accept from the Company, for his services during the consultative period, compensation at the rate of $400.00 per week, which shall be payable weekly, commencing on October 7, 1974. In the event of the disability of LaMelle during the term of this Agreement, the Company agrees to pay the balance of the payments due LaMelle as disability compensation. In the event of the death of LaMelle during this Agreement, the Company agrees to pay the balance of the payments to his widow as a death benefit for his services, or if he is not survived by a widow, then to his estate. (Emphasis added) .

Mr. LaMelle’s agreement with Freshair Corp. had an identical clause, except that it specified a lower rate of compensation. Upon Mr. LaMelle’s death, appellee corporations made some payments to appellant, but then ceased doing so. This suit followed.

Appellant moved for summary judgment, relying on the above mentioned clause in the consultative employment agreements. In response, appellees moved to strike her motion on the basis that she had failed to comply with Fla.R.Civ.P. 1.510(c). Appel-lees also moved for judgment on the pleadings and for summary judgment. In their motion for summary judgment, and in a supporting affidavit, appellees admitted nonpayment of the benefits but contended that they were not so obligated because the agreements were employment agreements which terminated upon Daniel LaMelle’s death. The parties stipulated there were no disputed issues of material fact and the trial court ruled as noted above.

While employment agreements generally terminate upon the employee’s death, exception is made where the agreement expressly extends payments beyond the employee’s death. See Stark v. McCaw, 8 Wash.App. 378, 506 P.2d 863 (Ct.App.1973); Nutt v. Members Mutual Insurance Company, 474 S.W.2d 575 (Tex.Civ.App.1971); Restatement of Contracts, § 459 (1932). The instant agreements appear to fall within this exception. However, the trial judge did not reach this issue because he apparently based summary judgment on an assumption that appellant had stipulated to the legal conclusion in appellees’ affidavit to the effect that they were not liable to appellant for any payments under the agreements. This was error.

Because there are no disputed issues of material fact in this case, this Court is tempted to remand with directions to enter a summary final judgment for appellant. However, we cannot do so because the trial court properly struck appellant’s motion for summary judgment based on her admitted failure to comply with Rule 1.510(c). Of course, this does not prevent appellant from tendering a proper motion to the trial court on remand.

In conclusion, the summary final judgment in favor of the corporate defendants is reversed. In all other respects, the order is affirmed. The cause is remanded for proceedings consistent with this opinion.

ANSTEAD and BERANEK, JJ., concur.


text:
    Johnny HAGOOD, Appellant, v. STATE of Florida, Appellee.
    No. 78-1875.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant; Johnny Hagood, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Our disposition of this appeal is without prejudice to the appellant to file a motion for post-conviction relief in the trial court on the same grounds set out in appellant’s pro se brief.

ANSTEAD, LETTS and HURLEY, JJ., concur.


author: DOWNEY, Chief Judge.

text:
    Robert B. ATKINS, Appellant, v. Margaret O’Connor ATKINS, Appellee.
    No. 78-2201.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1980.
    Rehearing Denied March 25, 1980.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellant.
    Joel M. Weissman and James R. Rich of Christiansen, Jacknin & Myers, P.A., Palm Beach, for appellee.
   DOWNEY, Chief Judge.

Robert Atkins, Appellant in a marriage dissolution action seeks reversal of those portions of a final judgment of dissolution that required him to pay appellee, Margaret Atkins, (1) rehabilitative alimony of $500 per month for two years and (2) attorney’s fees.

The evidence the parties presented shows the following material things. The marriage lasted approximately six years. The parties had no children. Appellant is a medical doctor specializing in ophthamology and earning $25,000 to $33,000 per year. Appellee has a Bachelor’s degree in History and a Master’s degree in Library Science. Throughout the marriage she worked in various capacities, namely, medical'librarian, teacher in the public school system and pharmaceutical sales representative. Ap-pellee’s work as a librarian and teacher paid so poorly that appellee entered the selling field. As a sales representative for a pharmaceutical house she earned approximately $16,000 annually at the time of trial. The appellee was 34 years of age and in good health, while the appellant was 43 and had some health problems.

We have examined the record and briefs carefully in order to find any evidentiary support for an award of alimony, specifically rehabilitative alimony, and we are unable to find a predicate therefor.

Thus, it is our opinion that the facts of this case do not justify an award of any alimony to appellee. But in any event, rehabilitative alimony is especially inappropriate under these circumstances. Rehabilitative alimony is awarded to restore a person to a former capacity. In making such an award the court assumes a person has a capacity for self support which has been underdeveloped or completely lost during marriage. Rehabilitative alimony should be limited in amount and duration to that necessary to maintain the recipient through training or retraining. Such an award is an incentive to assist one in reclaiming employment skills which have atrophied during the marriage.

Insofar as her earnings are concerned, the appellee is at the apex of her career. Her present income of $16,000 annually as a sales representative is twice the income she had previously derived from any of her other varied occupations. Appellee simply needed no rehabilitation. Thus, we hold that the trial judge abused his discretion in awarding the appellee rehabilitative alimony.

With regard to the award of attorney’s fees, the appellant has failed to demonstrate an abuse of discretion.

Accordingly, we reverse the award of rehabilitative alimony and affirm the final judgment in all other respects.

REVERSED IN PART; AFFIRMED IN PART.

ANSTEAD and MOORE, JJ., concur.

      . Rebach v. Rebach, 296 So.2d 541 (Fla. 3rd DCA 1974); Robinson v. Robinson, 366 So.2d 1210 (Fla. 1st DCA 1979).

      . Ibid.

      . Ibid.

      . Robinson v. Robinson, supra at fn. 2.


text:
    George PORTER, Appellant, v. STATE of Florida, Appellee.
    No. 79-730.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1980.
    Richard L. Jorandby, Public Defender and Jon May, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This cause is affirmed. Failure to file four monthly reports is a clear violation of probation when it is one of the imposed conditions. See Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979).

However, we do not feel that the probationer’s ability to pay his required monthly payments was sufficiently demonstrated. See Woodard v. State, 371 So.2d 708 (Fla. 4th DCA 1979).

Accordingly, we remand this cause to the trial court to enter a further order removing the holding that failure to make the monthly payments was in violation of probation.

In all other respects this cause is affirmed.

AFFIRMED AS MODIFIED.

ANSTEAD, LETTS and HURLEY, JJ., concur.


text:
    Paul C. MUELLER, Personal Representative of the Estate of Helen C. Smith, Deceased, Appellant, v. NORTH BROWARD HOSPITAL DISTRICT, d/b/a Broward General Medical Center, Appellee.
    No. 79-927.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1980.
    Thomas E. Hunt, Fort Lauderdale, for appellant.
    John W. Mauro, of Carey, Dwyer, Cole, Selwood & Bernard, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. See Riccobono v. Cordis Corporation, 341 So.2d 805 (Fla. 3rd DCA 1977).

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


author: COBB, Judge.

text:
    Stephen Edward HARKINS, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-124/T4-47, 78-774/T4-47A.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, App. Div., 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.
   COBB, Judge.

Appellant was tried by jury and found guilty of second-degree felony murder, kidnapping and two counts of sexual battery. He appeals from the judgments and sentences.

Young Arnold Trossman was murdered between 8:00 p. m. December 23 and 1:00 p. m. December 24,1976. The body was found in a motel room bed, mangled by fifteen superficial nicks and twenty-five deeper stab wounds penetrating heart, liver and lungs. The only article of clothing was a scarf tied around the neck. Ropes draped about the four corners of the bed appeared to be a restraining device which would have tightened the more the victim struggled. There were rope burns on the wrists and ankles. Medical examination disclosed an unusually dilated anus and semen in the rectal cavity and mouth.

The state’s evidence included a letter taken from the victim’s billfold which was found in the motel room. Addressed to “Babe,” the letter purported to be from a young lady named “Jessica” offering to have sex. The Jessica letter said she had given money to a man at a record shop named Dave who offered to get the motel room and drive Babe home. An investigating officer testified that appellant had admitted writing the letter, giving it to the victim, driving the victim to the motel, and telling the victim en route that appellant was the Dave in the letter.

There was other physical evidence tying appellant to the scene, as well as a motel maid’s identification of appellant as the man she had seen walking past the victim’s motel room the morning before the body was discovered.

In addition, a maintenance man testified to having received letters from appellant, purportedly from a girl named Jessica, offering to have sex and relating a fantasy of tying the maintenance man to a bed, blindfolding him and performing sex acts. Appellant was to have met the maintenance man at a motel to prepare him for the fantasy. The letters were thrown away prior to the maintenance man’s contacting the police.

The first point on appeal concerns admission of an investigating officer’s testimony about visiting a Chicago establishment selling paraphernalia for “masochistic homosexual type situations,” with a man for whom appellant said he had worked. Appellant also challenges admission of testimony from a young male runaway who met appellant at a record shop three weeks after the murder. Appellant offered the runaway a room at a motel across the street from the earlier victim’s motel, drove them there the next day, and registered under the name of Dave. Due to the runaway’s intervening contact with the police, police officers arrived soon after appellant and the runaway entered the motel room.

Appellant argues that the investigating officer’s testimony was irrelevant and prejudicial, that whether or not appellant knew someone who frequented the establishment had no value in showing that appellant went there. The state argues that the officer’s testimony was relevant to identify the murderer. Where identity is at issue, relevant evidence is admissible. See Henderson v. State, 304 So.2d 537 (Fla.3d DCA 1974). The present facts are distinguishable from cases such as Akers v. State, 352 So.2d 97 (Fla.4th DCA 1977), where there was no link between the evidence of contraband found in the victim’s car and the defendant. We find no reversible error in the admission of the officer’s testimony. The somewhat tenuous link was appellant’s admitted former employment by a professional pimp who procured for male prostitutes, the man who took the investigating officer to the Chicago establishment. The testimony was relevant to identify appellant as the perpetrator in a crime where masochistic paraphernalia were found and homosexual activities occurred. Even if the prejudicial impact outweighed probative value, admission of the officer’s testimony was harmless error due to the eyewitness testimony and physical evidence tying appellant to the crime scene, as well as the former employment testimony upon which a determination of homosexuality could have been based.

Appellant argues that the runaway’s testimony was irrelevant and was introduced only for the purpose of showing bad character and a propensity to molest young boys, contrary to the Williams rule. See Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). However, we agree with the state and hold that the runaway’s testimony presented sufficient similar facts showing an identifying pattern of behavior so as to pass the threshold of admissibility. Compare Ashley v. State, 265 So.2d 685, 693-94 (Fla.1972); Andrews v. State, 172 So.2d 505 (Fla. 1st DCA 1965). There were enough similarities between the crime and the incident with the runaway to distinguish this case from cases cited by appellant where admission of collateral offense evidence was held to be erroneous. See Helton v. State, 365 So.2d 1101 (Fla. 1st DCA 1979); Henry v. State, 356 So.2d 61 (Fla. 4th DCA 1978). Here, an additional factor, beyond proximity in location and time as well as similar type of victim, not found in Helton and Henry, supra was the use of the false identity, “Dave.” An additional distinction from Helton and Henry was the presence of additional pattern of behavior testimony from a maintenance man who received a Jessica letter from appellant.

As for the second point, we find no error in the trial court’s refusal to grant a continuance. Generally, a trial court may properly refuse a continuance when the testimony which would later be produced would only tend to impeach, especially where the result would be the same. Samuels v. State, 123 Fla. 280, 166 So. 743 (1936); Durcan v. State, 350 So.2d 525 (Fla.3d DCA 1977); Machin v. State, 213 So.2d 499 (Fla.3d DCA 1968), cert. denied 221 So.2d 747 (Fla.1968). Here the trial court denied a defense request to reopen the case the next day in order to introduce the testimony of the maintenance man’s employer, who was attending a funeral. The employer allegedly would have testified that he fired the maintenance man after receiving complaints from appellant’s family, and that he told the maintenance man the reason for his termination. However, at trial the maintenance man denied being fired and denied any animosity towards appellant’s family. His testimony was corroborated by two friends who saw the letters. Additionally, members of appellant’s family were available at trial for questioning as to any complaints and animosity. We hold there was no abuse of discretion by the trial court in refusing to grant a continuance where the testimony to be impeached was corroborated, alternate witnesses who could have impeached were available, and the result would have likely been the same. See Samuels, supra.

The third point raised by the appellant is the most difficult. He contends that any detention or confinement of Trossman in the motel room or on the bed was merely incidental to the acts leading to the sexual batteries and death. Although conceding that the element of asportation has been deleted from the law in Florida, appellant argues that the kidnapping conviction cannot stand without some independent foundation. There is ostensible support for this position in the case law of other states. See, e. g., People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973); People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225 (1969); People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 104 N.E.2d 842 (1965).

In State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), the Kansas Supreme Court construed the scope of its kidnapping statute, K.S.A. 21-3420, which is similar in many respects to section 787.01, Florida Statutes (1975).

The Kansas court construed its statute as requiring no particular distance of removal, nor any particular time or place of confinement. The fact, not the distance, of a taking supplies a necessary element of kidnapping. That taking must be by a proscribed means and also with a specific intent to accomplish one of the four enumerated objectives. The Florida statute is the same.

It is at this point of the second type of intent — i. e., holding the victim to facilitate commission of a felony — that there is a divergence between the Kansas view and the case law in the other states. In New York, California and Michigan it is held that if the only purpose of a taking or holding of a victim is to facilitate a lesser crime, the taking is “merely incidental” to that crime and the kidnapping statute does not cover it. The Kansas court rejects this rationale because of the clear wording of its statute in subsection (b) thereof.

We agree with the Kansas interpretation as applied to the Florida statute.

But the inquiry, as pointed out in Buggs, does not end at that point. The Kansas court observes that its statute, in subsection (2), sets forth an intent “to facilitate commission of any crime.” A lengthy discussion of the proper construction of the word “facilitate” follows, culminating with the enunciation of certain restrictions in application of the statute in respect to taking or confining another person with the intent to facilitate commission of another crime.

The Florida statute is broader and less restrictive in one important respect. The intent listed in subsection (2) of section 787.01(a) is: “Commit or facilitate commission of any felony.” (Emphasis added.) Nevertheless, we do not believe that the Florida Legislature intended to convert every first degree robbery and every forcible rape into two life felonies. Therefore, we construe section 787.01, Florida Statutes, to mean that “confining, abducting, or imprisoning another person . . . with intent to commit or facilitate commission of any felony” does not include movement or confinement that is inconsequential or inherent in the nature of the felony. The examples cited in Buggs, supra at 731, are apposite and quoted here with approval:

A standstill robbery on the street is not a kidnapping; the forced removal of the victim to a dark alley for robbery is. The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of the rapist is not a kidnapping; the removal from a public place to a place of seclusion is. The forced direction of a store clerk to cross the store to open a cash register is not a kidnapping; locking him in a cooler to facilitate escape is.

Applying these principles and the statutory language to the instant facts, we find uncontroverted evidence that Trossman was confined to the motel bed by restraining ropes. The appellant’s argument that this procedure “had less to do with detention than with the sexual fantasies of the perpetrator” is unconvincing. The fact is that Trossman was tied to the bed, sexually assaulted and stabbed to death. The roped confinement was neither inconsequential nor inherent in the felonies of sexual battery and second degree murder. Cf. Spencer v. State, 332 So.2d 30 (Fla. 1st DCA 1976).

Moreover, there was overwhelming evidence to support the specific intent set forth in subsection (3) of the statute: “Inflict bodily harm upon or to terrorize the victim . . .” Trossman suffered twenty-five significant stab wounds and fifteen superficial nicks.

As for the fourth point, appellant was convicted and sentenced for both second degree felony murder and the underlying felony of anal sexual battery. In State v. Pinder, 375 So.2d 836, 839 (Fla.1979), the supreme court recently held that a defendant may not be convicted and sentenced for both felony murder and the underlying felony where premeditated murder is charged, but the only evidence to sustain the murder conviction is furnished by proof that the killing occurred as the result of the underlying felony. See also Mahaun v. State, 377 So.2d 1158 (Fla.1979).

Accordingly, the conviction and sentence for anal sexual battery are reversed. The convictions and sentences for second degree felony murder, kidnapping and oral sexual battery are affirmed.

AFFIRMED in part; REVERSED in part.

DAUKSCH, C. J., and SHARP, J., concur.

      . The Kansas statute provides:
      Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
      (a)For ransom, or as a shield or hostage;
      or
      (b) To facilitate flight or the commission of any crime; or
      (c) To inflict bodily injury or to terrorize the victim or another; or
      (d) To interfere with the performance of any governmental or political function.


text:
    NATIONAL CAR RENTAL SYSTEMS, INC., Appellant/Cross-Appellee, v. BRUCE A. RYALS ENTERPRISES, INC., et al., Appellee, and H. L. McNorton, Appellee/Cross-Appellant.
    No. 78-1038/T4-109.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.
    Bernard C. O’Neill, Jr., of O’Neill, Dyer, Bogner & Larsen, Orlando, for appellant-cross-appellee.
    David B. King, of Peed & King, Orlando, for appellee-cross-appellant.
   COBB, Judge.

National Car Rental Systems, Inc., brings this appeal from a final judgment dissolving a writ of garnishment. Cross-appellant McNorton appeals an earlier order denying the motion of McNorton to abate or dissolve the writ of garnishment. National Car Rental contends that the trial court erred in directing a verdict in favor of McNorton.

National Car Rental obtained a final money judgment against Bruce A. Ryals, individually, Ryals Pontiac-Buick, Inc., and Bruce A. Ryals Enterprises, Inc., in December of 1971. In 1976, 5-A Auto Parts, Inc., was ádded to the judgment, after the court entered an order finding that 5-A Auto Parts, Inc., was the alter-ego of Bruce A. Ryals. At that time, a receiver was appointed to operate 5-A Auto Parts, Inc.

On April 26, 1977, in one of its numerous efforts to collect the 1971 judgment from Ryals, National Car Rental filed a motion for writ of garnishment against Ryals and his enterprises, or by and through their agent or alter-ego, H. L. McNorton. The motion suggested ComBank/Pinecastle as the garnishee. On the same date, pursuant to the motion, a writ of garnishment was issued by the Clerk of the Circuit Court and served on ComBank/Pinecastle. Corn-Bank’s answer stated that it was not indebted to Ryals or his enterprises, but was indebted to H. L. McNorton in the amount of $28,270.88. Appellee/cross-appellant, H. L. McNorton, who was not a party to the pending litigation in which the writ of garnishment was filed, filed a motion to abate and/or dissolve the writ of garnishment, plus an affidavit in support of his claim to the garnished property. McNorton’s motion was heard in late June, again in late September, and denied in early October of 1977. McNorton filed an answer to the writ of garnishment in late October, asserting that the money in the ComBank account was his sole and exclusive property, and sought an order returning the funds. After a five-day jury trial, the circuit court granted McNorton’s motion for directed verdict and stated:

I find that there is ample evidence that Bruce Ryals has in the past worked with and through others to defeat or hinder his lawful creditors; there is ample evidence that the defendant, McNorton, has in the past on a number of occasions cooperated with Ryals in these efforts; that there is evidence that in the present instance Ryals was making such efforts, and McNorton was again cooperating with Ryals. But I find that there was no evidence that any of the funds in the bank account here involved were owned by Ryals, and I will accordingly grant the motion for directed verdict.

As for the specific account in question, the uncontroverted evidence was clear that the source of the funds was McNorton, not Ryals. Whatever fraudulent machinations may have been engaged in previously, or contemplated, by McNorton and Ryals, Ryals had no right to claim the $28,270.88 as against McNorton and ComBank/Pine-castle as of April 26, 1977.

The leading Florida case on the point in question is Howe v. Hyer, 36 Fla. 12, 17 So. 925 (1895), where the court stated:

The rights of the plaintiffs against the garnishee are not greater than those of the defendant. The garnishee is not, by service of the writ, to be placed in any worse condition than if the defendant, his creditor, had brought suit upon the claim which is garnished. As to the garnishee, the plaintiffs take the shoes of the defendant, the principal debtor, and can assert only the rights of the latter.

The rule has been restated recently by the Florida Supreme Court in United Presidential Life Ins. Co. v. King, 361 So.2d 710, 713 (Fla.1978). See also, Reeves v. Don L. Tullis & Assoc., Inc., 305 So.2d 813 (Fla. 1st DCA 1975).

Although a transfer of funds from a judgment debtor to a third party may be valid as against the judgment debtor, the creditor may assert its impropriety and reach that fund by garnishment. Florida law permits a judgment creditor to use garnishment to retrieve the fruits of a fraudulent transfer. See Standard Accident Ins. Co. v. Hancock, 124 Fla. 725, 169 So. 617 (1936); Greenfield v. Valley Forge Center Co., 229 So.2d 875 (Fla. 3d DCA 1969). However, the garnishor must prove that it is the property of the debtor which was fraudulently transferred.

In this case, the trial court was correct in granting McNorton’s motion for directed verdict and entering final judgment dissolving the writ of garnishment. Viewing the evidence in the light most favorable to National Car Rental, we agree with the trial court that there was no evidence that property of the debtor Ryals was transferred to the account of McNorton, there was no evidence that the judgment debtor Ryals, into whose shoes the garnishor, National Car Rental, would have stepped, could have successfully exerted a claim against the personal funds of McNorton in the ComBank account. Even though a third party may aid a judgment debtor to defraud a creditor, that alone does not subject the third party’s personal bank account to garnishment by the creditor. The cases cited by appellant are distinguishable, and involve fact situations where the source of the funds could be traced to the judgment debtor. In James v. Commercial Bank at Apopka, 310 So.2d 399 (Fla. 4th DCA 1975), the garnishee was the daughter of the judgment debtor, and had set up a business identical to her father’s prior business, with the assistance of her father. The court found the new business to be owned by the father, and funds generated by the new business were the funds placed in the business account nominally the daughter’s; therefore, the funds were subject to garnishment. In B & H Sales, Inc. v. Jewel Builders, Inc., 353 So.2d 653 (Fla. 4th DCA 1977), the garnishee admitted owing money to the judgment debtor. There was no question as to the judgment debtor’s right to the funds, just a question concerning who had a superior right.

Our disposition of the directed verdict issue in favor of McNorton renders the issue of the propriety of the circuit court’s prior order denying McNorton’s motion to dissolve moot. Cf., Hamilton v. Hanks, 309 So.2d 229 (Fla. 4th DCA 1975). We note, however, that the post-judgment portion of Florida’s garnishment statute has been held constitutional. United Presidential Life Ins. Co. v. King, supra.

Accordingly, the final judgment dissolving the writ of garnishment is AFFIRMED.

CROSS and ORFINGER, JJ., concur.

      . On a defendant’s Fla.R.Civ.P. 1.480 motion for directed verdict, the trial court is to view the evidence in the light most favorable to the plaintiff, and the court must be convinced that there is no evidence upon which the jury could find for the adverse party. E. g., Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla. 3d DCA 1979); Budgen v. Brady, 103 So.2d 672, 674 (Fla. 1st DCA 1958).

      . §§ 77.01, 77.03 Fla.Stat. (1975).


author: ORFINGER, Judge.

text:
    D. Leroy GIBSON, Appellant, v. D. J. WALKER, Appellee.
    No. NN-31/T1-44.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.

      R. K. Roberson of Roberson & Roberson, De Land, for appellant.
    Leighton D. Yates, Jr., of Maguire, Voo-rhis & Wells, P. A., Orlando, for appellee.
   ORFINGER, Judge.

Plaintiff below appeals from a final judgment awarding attorney’s fees, interest and costs in a suit on an insurance policy. Appellant contends that the trial court erred in not allowing sufficient interest or attorney’s fees in the final judgment.

Appellant was the insured in an insurance policy written by a group of underwriters associated with Lloyds of London, covering physical damage and theft on a certain trailer owned by appellant. The trailer was stolen on February 8, 1978, and while the defendant insurer was notified of the loss almost immediately, a formal proof of loss was not filed with defendant until May 22, 1978. The policy contains a provision that the loss is not payable until 60 days after the verified proof of loss is submitted to the underwriters.

On June 20, 1978, prior to the expiration of the 60-day period, the insured filed suit in the court below, alleging the loss and demanding the full limits of the policy, plus interest, costs and attorney’s fees. On July 17, 1978, the agent for the underwriters mailed to appellant a check for $22,000, the full limits of the policy, in full payment of the loss. Appellant received the check on July 22, 1978. Appellant, through his counsel, refused to accept the cheek in full payment, claiming that interest and attorney’s fees were due. Through later correspondence with defendant’s attorneys, it was agreed that the check could be negotiated without prejudice to appellant’s claim for interest and attorney’s fees, although appel-lee continued to insist that it had paid appellant $22,000 “ . . . in full, final and complete payment of plaintiff’s claim. . ” At no time did appellee concede its liability for, or offer to pay either interest or attorney’s fees.

In this posture the case proceeded to trial before a jury. At the conclusion of the evidence, the court directed a verdict on the issue of liability, and then the court proceeded to hear testimony on the issue of interest and attorney’s fees. At the conclusion of the evidence the court apparently found that the insurer had not made timely payment and that it would award plaintiff interest from the date the proof of loss was received until the date when the insured received the check. No objection was made to this ruling, and we find that error, if any, as to the award of interest has not been preserved for appeal.

On the matter of attorney’s fees, the trial court concluded that the insured was entitled to recover such fees for services rendered by his attorney up to the time the insurance proceeds were received (July 22, 1978), but not beyond. The insured contends that he is entitled to recover a reasonable attorney’s fee up to and including the trial, an effort that involves a far greater expenditure of time than was involved up to the date payment was received, so we address that issue. It should be noted that appellee does not assert error in the award of attorney’s fees to appellant, but resists the payment of any additional fees after July 22, 1978, by contending that from that date forward, the attorney was working for himself, and not for appellant.

Attorney’s fees are recoverable in a suit by the insured against his insurer by virtue of § 627.428, Fla.Stat. (1977). We must determine at what point in these proceedings the obligation for attorney’s fees terminated, whether at the time the policy proceeds were received, as contended by appellee, or at the conclusion of the trial, as contended by appellant. We conclude that in this case, the appellant was entitled to recover attorney’s fees through the final judgment, and consequently we must reverse.

Several appellate decisions in Florida discuss the problems arising under this statute, but we believe the persuasive opinion is found in Cincinnati Insurance Company v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974). One of the issues there decided was whether the obligation for attorney’s fees existed at all if the policy proceeds were paid after suit was filed, but before final judgment. That court held, and we think correctly so, that the statutory obligation for attorney’s fees cannot be avoided simply by paying the policy proceeds after suit is filed but before a judgment is actually entered because to so construe the statute would do violence to its purpose, which is to discourage litigation and encourage prompt disposition of valid insurance claims without litigation. The court then addressed the question of whether attorney’s fees are actually a part of the policy, or something separate and apart from it. The court held:

Appellee contends, and we think correctly so, that upon suit being filed the relief sought was both the policy proceeds and attorney’s fees, and so long as the insurer failed to voluntarily pay any part of the relief sought, it continued to contest the policy . . . and thus even though the claim at that point is limited to the recovery of attorney’s fees, it is nonetheless a claim under the policy .

We adopt the view of Cincinnati, that the statute, § 627.428, Fla.Stat. (1977), becomes a part of every insurance policy of which the insurer is bound to take notice as it does any other provision of the policy.

But this does not dispose of all the issues here. In Cincinnati, the insurer not only tendered the policy proceeds, but also tendered to the insured the full amount of the attorney fees which he had paid to his attorney and for which he was obligated. Based on these facts, the court then found that the insurance company had met its entire obligation, and when the offer was rejected because of a demand for a larger attorney’s fee, from that point forward the attorney was working for himself. These are not the facts here. Not only was there no offer to pay attorney’s fees, but there was no offer to pay interest, which the trial court found was due, and in fact, the insurer steadfastly resisted any obligation at all for either of these items.

Thus this case is also distinguishable from Wisconsin Life Insurance Company v. Sills, 368 So.2d 920 (Fla. 1st DCA 1979), where during the litigation the insurance company filed an offer of judgment under Rule 1.442, Fla.R.Civ.P., which was sufficient to cover all accrued intérest and costs. The court there held that attorney’s fees could then be awarded like costs, and that the obligation for further fees terminated when the offer of judgment was filed.

The final judgment is affirmed as to the award of interest, but is reversed as to the award of attorney’s fees. On remand, the trial court is not bound by its previous determination of the value of the services rendered by plaintiff’s attorney, but is free to take such evidence as it deems appropriate and make new findings as to the necessity for and the reasonable value of the services rendered by the insured’s attorney in the prosecution of this suit from its inception through final judgment. Neither is the trial court bound by the contingency fee arrangement which the record discloses exists between the insured and his attorney, Universal Underwriters Insurance Company v. Gorgei Enterprises, Inc., 345 So.2d 412 (Fla. 2nd DCA 1977), but the reasonable value of such services should be based on established criteria. Manatee County v. Harbor Ventures, Inc., 305 So.2d 299 (Fla. 2nd DCA 1975); Fla.Bar Code Prof.Resp., DR 2-106.

Appellant has, pursuant to Rule 9.400, Fla.R.App.P., filed a motion for the allowance of attorney’s fees in connection with this appeal. Since § 627.428, Fla.Stat. (1977), provides for the award of attorney’s fees on appeal to a successful insured, the motion is granted and is remanded to the trial court for determination of the amount of attorney’s fees to be awarded for the appellate proceedings.

Affirmed in part and reversed in part, and remanded for further proceedings consistent herewith.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

DAUKSCH, C. J., and UPCHURCH, J., concur.

      . (1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured . under a policy . . . executed by the insurer, the trial court . . shall adjudge or decree against the insurer and in favor of the insured ... a reasonable sum as fees or compensation for the insured’s . . . attorney prosecuting the suit in which recovery is had.


text:
    STATE of Florida, Appellant, v. Jack E. FORT, Appellee.
    No. 78-2100/T4-223.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.
    Jim Smith, Atty. Gen., Tallahassee, Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, and Phillip Havens, Asst. Atty. Gen., Daytona Beach, for appellant.
    C. A. Van Hook, III, Deland, for appellee.
   COBB, Judge.

The state appeals an order dismissing an Information charging appellee, the defendant Fort, with second degree grand theft of a heater. Fla.R.App.P. 9.140(c)(1)(A). The dismissal was based on a motion by the defense, filed pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure, which was traversed by the state.

Fort’s motion alleged that the state had no evidence establishing ownership of a certain heater in the victim, Mahaffey, Fort’s employer, or in another person. In support of the allegation, Fort contended the evidence would show: (1) a heater similar to Mahaffey’s was sold by Fort to David Jordan; (2) Fort worked for Mahaffey for several years and was constructing for Ma-haffey a heater similar to the one which Fort sold to Jordan; (3) that Mahaffey observed that one of his heaters, similar to the one Fort was working on and the one sold to Jordan, was missing; (4) that subsequent to the sale of the heater to Jordan, Mahaffey saw the heater on Jordan’s property and claimed it, stating it looked like his heater; (5) that Mahaffey could not state absolutely that the heater he claimed at David Jordan’s was his heater, but only that it looked like his heater; (6) that Mahaffey stated that Fort has made at least one heater on piecework on his own time; (7) that the heater Fort was building that Ma-haffey says was the same one Fort stole had no serial number on it and that it was impossible to identify it without a serial number with absolute certainty; (8) that Mahaffey could not possibly identify the parts to the heater as being his parts; (9) that there was no way for Mahaffey to really know whether Fort may have constructed that particular heater that was at Jordan’s property on his own or at some other location; (10) that the transfer of a heater was made by Fort in broad daylight to Jordan’s nursery across the street from Mahaffey’s; (11) that based on all the state’s evidence and taken in a light most favorable to the state, there existed a reasonable hypothesis of innocence as a matter of law and the state’s case was not worthy of jury consideration.

In its written traverse, the state denied that there were not disputed material facts and that the undisputed facts failed to establish a prima facie case, and went on to specifically state facts indicating guilt: that during October, 1977, Mahaffey noticed that a heater which was being assembled at his direction by Fort was not in the packing shed where Fort had been working on it the day before; that when Mahaffey asked Fort where it was Fort replied that it had been moved to a back shed, but Mahaf-fey discovered that the heater was not in the back shed; that when Mahaffey again confronted Fort, Fort said Mahaffey would have to check with Fort’s brother; that Fort had not been directed to move the heater to the back shed, since all of the necessary tools were in the packing shed, and Fort never explained why the heater would have been moved; that the heaters being assembled by Fort was homemade and especially designed for Mahaffey’s greenhouses; that Mahaffey bought all the parts and equipment for the heaters, and Fort was to receive $100.00 per heater for building them; that at 6:00 P.M. on October 30, 1977, two witnesses observed Fort and his brother bring a heater, which matched the description of the one which was ultimately found to be missing from, Mahaf-fey’s nurseries across the street to Jordan’s nursery, using Mahaffey’s front-end loader; that Jordan would testify that he purchased the heater brought to his nursery by Fort, not knowing it belonged to Mahaffey; that Fort installed the heater in Jordan’s greenhouse on November 4, 1977, at 4:00 P.M., and was then paid $800.00; that on November 8, Mahaffey went to Jordan’s nursery, was shown the heater sold and installed by Fort, and positively identified the heater as his own, due to its design and flaw in its construction, which he recognized; that Jordan immediately returned the heater to Mahaffey; and that Fort failed to report to work as expected on November 5 and was never seen again by Mahaffey.

The trial court granted the motion on the basis that the evidence showing the heater belonged to Mahaffey rather than to Fort was circumstantial and, as such, susceptible of a reasonable construction indicating innocence. In other words, the trial court found that the state failed to present a prima facie case.

The state argues, and correctly so, that the evidence of Fort’s guilt was direct, not circumstantial. Even if the evidence were entirely circumstantial, it did not support any reasonable hypothesis of innocence. No facts were presented to the trial court indicating the heater in question belonged to Fort prior to its sale to Jordan; at no time did Fort claim that he built the heater using his own parts on his own time.

Under Florida law, the identity of stolen property may be established by circumstantial evidence. McDonald v. State, 56 Fla. 74, 47 So. 485 (1908); Thompson v. State, 58 Fla. 106, 50 So. 507 (1909); Kearson v. State, 123 Fla. 324, 166 So. 832 (1936). Moreover, in considering a “(c)(4)” motion, the trial judge may not try or determine factual issues nor consider the weight of conflicting evidence or the credibility of witnesses in determining whether there exists a genuine issue of material fact. State v. West, 262 So.2d 457 (Fla. 4th DCA 1972). If material factual allegations of a (c)(4) motion are denied or disputed in the traverse, denial of the motion to dismiss is mandatory. Fla.R.Cr.P. 3.190(d); State v. Cook, 354 So.2d 909 (Fla. 2d DCA 1978); cert. dismissed, 359 So.2d 1212 (Fla.1978); Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977), cert. denied, 352 So.2d 175 (Fla.1977); State v. Hamlin, 306 So.2d 150 (Fla. 4th DCA 1975).

The dismissal by the trial court is reversed, and this cause remanded with directions to reinstate the Information.

REVERSED and REMANDED.

ORFINGER and SHARP, JJ., concur.


author: COBB, Judge. UPCHURCH, Judge,

text:
    Martin BARBER, Appellant, v. George W. HATCH and Jerry Wright, Appellees.
    No. NN-222/T1-68.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.
    John R. Godbee, Jr., of Coble, McKinnon, Rothert, Bohner, Barkin & Godbee, P.A., Daytona Beach, for appellant.
    William V. Emery, III, of William V. Emery, III, P.A., Ormond Beach, for appel-lees.
   COBB, Judge.

This case was commenced by the filing of an eviction action by the lessor of realty against the lessee and a successor to the lessee, alternately and confusingly referred to throughout the evidence as sub-lessee and an assignee of the lease. The lease was a long-term lease of twenty years. The defense of estoppel was raised, and the “as-signee” counterclaimed for foreclosure of an equitable lien, which related to improvements he had made on the premises. The original lease contained a prohibition against assignment or sub-leasing without the written consent of the lessor.

At trial there was testimony concerning a written assignment of the lease, but that document was never introduced in evidence. It has been represented to this Court at oral argument that this omission resulted from misplacement of the document at the time of trial. The evidence does not indicate that this document was signed or witnessed as required by Section 689.01, Fla.Stat. (1977). Indeed, it is not clear that it was ever physically delivered to the “assignee.” On the other hand, no objection was raised before the trial court to testimony as to the contents of this assignment.

The trial court apparently found an assignment of the lease on the basis of equitable estoppel applied against the lessor, and entered a judgment of specific performance for the “assignee” of the lease — relief which had not been requested.

The first point raised by the appellant is dispositive of this appeal: the trial court erred in finding estoppel based upon the greater weight of the evidence as opposed to the standard enunciated in the case of Jarrard v. Associates Discount Corporation, 99 So.2d 272, 277 (Fla.1957):

Before an estoppel can be raised there must be certainty and the facts necessary to constitute it cannot be taken by argument or inference, nor supplied by in-tendment. They .must be clearly and satisfactorily proved.

In the instant case, the trial court stated at the conclusion of the non-jury trial the following:

The Court finds that the greater weight of the evidence supports the defenses of the defendants and denies the petition of the complaint and of the plaintiff.

Although the final judgment is silent as to the quantum of evidence, there is no indication that the higher degree of proof required was substituted by the trial court during the interim between trial and judgment.

In the case of Hi-Acres Groves, Inc. v. Bassett, 338 So.2d 1076 (Fla. 4th DCA 1976), the question of the appropriate remedy when the trial judge employs the wrong quantum of evidence is discussed. In that case, the majority opted for temporary relinquishment of jurisdiction to the trial court for thirty days with directions that the court reconsider the evidence utilizing the proper standard of proof. The dissent considered that the trial court should not be called upon to recall all the criteria and circumstances from a stale printed record.

We do not adopt, at this time, either the majority or dissenting view in Hi-Acres as an inflexible guideline. Based on the record of the instant case, we believe that a new trial is appropriate. Cf., Rossmoor Corp. v. Tri-County Concrete Products, Inc., 375 So.2d 896 (Fla. 4th DCA 1979).

REVERSED AND REMANDED FOR NEW TRIAL.

ORFINGER, J., concurs.

UPCHURCH, J., concurs specially with opinion.

UPCHURCH, Judge,

concurring specially-

While I concur in the result, I question the logic of a rule which imposes a higher standard of proof for estoppel, Jarrard v. Associates Discount Corporation, 99 So.2d 272 (Fla.1957), than for fraud and deceit, Rigot v. Bucci, 245 So.2d 51 (Fla.1971), Blaeser Development Corporation v. First Federal Savings & Loan Association of Martin County, 375 So.2d 1118 (Fla. 4th DCA 1979).


author: SHARP, Judge.

text:
    James STAFFORD and Edward L. Canada, Appellants, v. STATE of Florida, Appellee.
    Nos. 78-132/T4-48, 78-929/T4-48A.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.
    Richard L. Jorandby, Public Defender, and Martin Colin, Asst. Public Defender, West Palm Beach, for appellant Stafford.
    Richard L. Jorandby, Public Defender, and Paul Herman, Asst. Public Defender, West Palm Beach, for appellant Canada.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   SHARP, Judge.

This case involves two timely appeals which were consolidated because they address the same issue. The issue presented is whether a defendant should receive credit for time spent while receiving treatment in the mentally disordered sex offender (MDSO) program against his criminal sentence. The appellants were committed to the Department of Health & Rehabilitative Services for participation in the MDSO program. After receiving maximum benefits from the programs, appellants were returned to the trial courts for sentencing. In each case, credit was given for time served in jail prior to entry in the program, but the judges refused to give the appellants credit for time spent in the program. This was erroneous, and we vacate the sentences and remand these cases to trial courts for correction of the sentences.

Section 917.218, Florida Statutes (1977), provides:

All time spent in the formal custody of the state and in admission procedure by an offender in the mentally disordered sex offender program shall be considered credit lor time served for any sentence imposed on the sex offender or attempted sex offense committed prior to the date the offender was convicted.

Both the First and Second District'Courts of Appeal have held that under section 917.-218 credit should be given for time served in the program. Hall v. State, 358 So.2d 891 (Fla. 2d DCA 1978); Ormanian v. State, 366 So.2d 498 (Fla. 2d DCA 1979); Cawthorne v. State, 371 So.2d 1099 (Fla. 1st DCA 1979).

The term “custody of the state” is not defined in the statute. However, “custody” is used in section 917.19, Florida Statutes (1977):

If the court finds that the defendant is a mentally disordered sex offender, it shall commit the offender to the custody of the department for care, treatment, and rehabilitation.

The “department” means the Department of Health & Rehabilitative Services, a state agency. If a person is committed under this statute, he is put in the custody of the State of Florida, for rehabilitative purposes. But it is nonetheless “custody.” Anyone who has been locked behind such treatment facility doors knows that he has lost the right to leave, upon his own volition, and is in the “custody” of the state authorities.

Further, the statute makes no distinction between custody of the state for punishment purposes, as contrasted with rehabilitative or treatment purposes. Rather, the two spans of custody are made reciprocal. Section 917.218 provides that an offender cannot be committed under this statute for a period of time exceeding the maximum sentence applicable to the crime for which the offender was convicted or to which he pled guilty, unless a civil involuntary commitment hearing is initiated.

The legislative “history” of a statute, although not controlling, often establishes guides and checks on whether the court is arriving at a proper statutory construction. The successor statute to Section 917.218 provides:

Time spent in the treatment programs of the Department of Health and Rehabilitative Services, shall be considered time served on the sentence imposed upon the offender by the court.

Ch. 79-341 Laws of Florida.

The Senate Staff Analysis and Economic Impact Statement of May 31, 1979 to Ch. 79-341, by the Committee on Corrections, Probation and Parole, noted various problems which occurred with Chapter 917. One is involved in this case.

The more serious offender who has been committed to the Department has a substantial incentive to avoid responding to treatment because he faces possible incarceration when he is returned to the committing court. By prolonging his stay in the custody of the Department, the offender reduces the amount of prison time, if any, which he will be required to serve.

On the question of crediting treatment time, the study indicates no change was intended in the 1979 enactment, although-the language is more express. The new statute is thus a restatement or clarification of what the law was previously. Red Lion Broadcasting Co. v. F. C. C., 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Laycock v. Kenney, 270 F.2d 580 (9th Cir. 1959).

The purpose of the statute is to provide treatment and rehabilitation for criminal offenders who are determined by the authorities to need it. If the offender were not given credit for time in the program, he would have little incentive to cooperate and participate in the program, since he would face the full balance of his sentence in prison, upon being released. Treatment and rehabilitation programs depend to an important degree upon the willingness of the person in the program to cooperate and participate. We construe Section 917.218 as requiring the trial court to give credit to an offender for time spent in the treatment as well as the admission procedure, of the mentally disordered sex offender program, and accordingly, these cases are remanded to the trial courts for correction of the sentences.

DAUKSCH, C. J., and UPCHURCH, J., concur.

      . Section 917.13(3), Fla.Stat. (1977).


text:
    William Robert RYAN (Al Estes Bonding Company), Appellant, v. STATE of Florida, Appellee.
    No. 78-1808/T2-2.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.

      B. Robert Ohle, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   COBB, Judge.

This is an appeal from a trial court order denying a motion to set aside a bond estrea-ture. It requires interpretation of the 1977 amendment to § 903.26(2), which added the following italicized words:

If there is a breach of the bond, the court shall declare the bond and any bonds or money deposited as bail forfeited and shall notify the surety agent and surety company in writing within 72 hours of said forfeiture. The forfeiture shall be paid within 30 days.

Subsection (l)(b) of § 903.26 provides that a bail bond shall not be forfeited in the absence of 72 hour advance notice to the surety of a court date. This subsection has been construed to require actual notice. Schaefer v. State, 369 So.2d 443 (Fla.3d DCA 1979); Bailey v. State, 282 So.2d 32 (Fla.1st DCA 1973). The burden of showing compliance with this advance notice requirement is on the state. Bankers Fire & Casualty Co. v. State, 303 So.2d 39 (Fla.1st DCA 1974); Resolute Insurance Company v. State, 269 So.2d 770 (Fla.3d DCA 1972).

In the instant case, there is no record showing that the post-forfeiture notice was given. Therefore, appellant argues from analogy with Bankers and Resolute, the forfeiture must be set aside.

The difficulty with this argument is that subsection (l)(b) of the statute expressly proscribes forfeiture in the absence of advance notice by the clerk to the surety, whereas subsection (2), as amended, is silent as to the consequences of a post-forfeiture notice failure. When a surety is given proper notice to produce a defendant, for whom it is legally responsible and for whom it has intervened in the case, that surety knows it is subject to forfeiture at the time of the failure of appearance. There is no logical reason for the requirement of additional written notice at all; the forfeiture occurs in open court and is a matter of public record. To preclude forfeiture each time a surety or its agent denies actual receipt of a post-forfeiture notice — and they may effectively insulate themselves from notice as occurred in Bailey-would be to emasculate the forfeiture law. It would be inimical to the interest of the public for there would be no effective recourse or motivation for the return of bond-jumping defendants to custody. If the legislature had intended this drastic result, it could have achieved it by an express statement that in the absence of the notice the forfeiture would be nullified. It did not elect to do so, and neither should this court.

It is logical and consistent with the language of subsection (2) of the statute to interpret the post-forfeiture notice as reasonable notice which serves as the inception of the running of the 30-day period for payment. At the very least, there should be a showing of prejudice made by the bondsman or surety before the trial court to avoid forfeiture. Weaver v. State, 370 So.2d 1236 (Fla.2d DCA 1979).

Whether or not this court would follow the stringent interpretation of the pre-for-feiture notice requirement of § 903.26(l)(b) as expressed in Schaefer and Bailey need not be decided at this time. Cf. Ramsey v. State, 225 So.2d 182 (Fla.2d DCA 1969).

In accordance with the foregoing, the order of the trial court is affirmed.

SHARP, J., concurs.

DAUKSCH, C. J., concurs in conclusion only.


text:
    James Lee ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 78-1787/T4-185.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, App. Div., and Gary S. Israel, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED.

See Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980).

COBB and UPCHURCH, JJ., and MILLER, ROBERT P., Associate Judge, concur.