author: GLICKSTEIN, Judge.

text:
    Junies Thomas IVEY, a/k/a Larry Edward Diggs, Appellant, v. STATE of Florida, Appellee.
    No. 81-1337.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Rehearing Denied Nov. 2, 1982.

      Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender and Katharine Wallace, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant was convicted of trafficking in cannabis in excess of 100 but less than 2,000 pounds. He was sentenced to three years in prison and fined $25,000. On appeal he argues the evidence is insufficient to sustain a conviction for constructive possession. Although this is a close case, we disagree.

At about 5:00 p.m. on January 21, 1981, the owner of an oceanfront home in Sea-grove Subdivision reported a small boat in distress to the Indian River County Sheriff’s Department. A deputy, responding to the call, found the craft “at the end of Wind Cove” anchored no more than seventy-five feet offshore in the breakers with one black male aboard. He saw another black man, appellant, walking northbound on the beach with a gas can. The deputy motioned appellant to come forward and asked him for identification, which he produced. Appellant then told the deputy that he had just purchased the boat and was out fishing with his friend when the engine ran out of fuel. He borrowed the gas can from a nearby resident, Mr. Fernandez, he said.

While conducting a wanted person’s check, which proved negative, the officer watched appellant return to the boat, which still would not start. As the deputy observed from a distance of never closer than 50 to 100 feet, a wave caught the boat broadside so that he could see inside. He saw neither fishing gear nor evidence of contraband. Appellant returned to the beach, and the deputy drove him to a convenience store to buy more fuel. Appellant did not appear nervous and he spoke little, according to the deputy, although he did mention that he had to call his wife.

Upon their return, the deputy observed two other men, who, he believed, were security guards from Mr. Fernandez’s, pushing the boat away from shore ostensibly to prevent it from being beached. As the deputy watched, appellant and the other man aboard filled the engine with gas; the motor, however, still failed to start. Having observed nothing suspicious, the deputy left, but not before asking headquarters to call the Coast Guard to tell it the boat did not have enough fuel to reach the Fort Pierce Inlet.

A detective, although obviously testifying about the following day, said that about 8:20 a.m. on January 21st, he responded to a dispatch that a boat “in the area of Wind-cove off the beach aways about 100 yards” appeared unattended and suspicious. After locating the craft, which looked like it was anchored but drifting, he watched it for about an hour. Two other detectives then rowed out to the unoccupied boat where they detected the odor of marijuana. Subsequently, the marine patrol towed the mo-torcraft into port where the officers observed the contraband “through the port holes in the front side of the boat.” They obtained a search warrant, which was executed, yielding 11 bales of marijuana totaling 367 pounds.

The case law on constructive possession is clear; proof of guilt consists of three elements:

(1) The accused must have dominion and control over the contraband;
(2) The accused must have knowledge that the contraband is within his presence, and;
(3) The accused must have knowledge of the illicit nature of the contraband.

Wale v. State, 397 So.2d 738, 739 (Fla. 4th DCA 1981), citing Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976), and Willis v. State, 320 So.2d 823 (Fla. 4th DCA 1975). In addition, in Harvey v. State, 390 So.2d 484 (Fla. 4th DCA 1980), we approved the principle that in order for circumstantial evidence to be sufficient for conviction, it must be “consistent with the accused’s guilt, inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt.” Id. at 484, quoting Brown v. State, 127 Fla. 225, 172 So. 921 (1937).

Turning to the present case, we believe the proof was legally sufficient to sustain a verdict of guilty. The deputy sheriff testified that appellant told him the boat was his. This conversation took place in the late afternoon when the boat was disabled and appellant had been on board. The boat was found the following morning in the same area, obviously abandoned. Although there was no direct testimony by the detective who boarded the boat the following morning that it was still disabled, the testimonial gap is insignificant when viewed in light of the evidence that it was observed at all times that morning to be 100 yards offshore and anchored but drifting in the same area where seen the previous late afternoon. To conclude that the marijuana was not present the previous late afternoon when appellant was on board the boat— which according to the deputy but denied by appellant, was proclaimed by appellant to be his — we would have to believe that between late afternoon when the boat was disabled offshore and early morning, when it was drifting offshore in the same area, someone placed the 11 bales on board and left them there. That is certainly an hypothesis of innocence but hardly a reasonable one. Nor do we find a logical similarity between the facts of this case and those in Falin v. State, 367 So.2d 675 (Fla. 3d DCA 1979), upon which appellant relies. In that case appellant was in joint possession of a motel room but was being detained several miles away at a police station when the contraband was seized. The court found no evidence eliminated the “reasonable” hypothesis that the drugs came into the motel room without Falin’s knowledge and after he left. A motel room with its ease of access by others is one thing; a marijuana-filled boat found drifting in the Atlantic Ocean early in the morning in the same area where it was disabled with appellant aboard and claiming ownership the previous late afternoon is quite another. Accordingly, we affirm.

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


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    Jerry Frank TOWNSEND, Appellant, v. STATE of Florida, Appellee.
    No. 80-2122.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Rehearing Denied Nov. 3, 1982.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant Jerry Frank Townsend was indicted by the Broward County grand jury for first degree murder arising out of the strangulation murder of Naomi Gamble and Barbara Ann Brown in July and August of 1973 and the stabbing death of Thelma Jean Bell in June of 1973. After a four-week trial, Townsend was found guilty of the first degree murder of Gamble and Brown and not guilty of the Bell murder. From a judgment of conviction and two consecutive life sentences with 25-year mín-imums before consideration for parole, Townsend has perfected this appeal.

The most serious point presented on this appeal has to do with the admission of Williams rule evidence. Townsend contends the evidence was not relevant and that the State made it a feature of the case. It appears that during the course of the trial the State introduced evidence that Townsend had admitted killing the three women named in the indictment and that he had directed the police to the places where the homicides occurred. In addition, over Townsend’s objection, the State also introduced evidence of six other homicides and two assaults which Townsend admitted.

It is axiomatic that evidence of unrelated crimes is generally inadmissible. However, if such evidence is relevant to any material issue other than propensity or bad character, it is admissible even though such evidence points to the commission of another crime. Drake v. State, 400 So.2d 1217 (Fla.1981); Williams v. State, 110 So.2d 654 (Fla.1959). In order to qualify similar fact evidence for admission, general similarity is not enough. As the Supreme Court said in Drake, supra at 1219:

A mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations. Given sufficient similarity, in order for the similar facts to be relevant the points of similarity must have some special character or be so unusual as to point to the defendant.

In the present case the jury heard taped confessions wherein Townsend admitted killing the three women named in the indictment. In addition, he took the police to the scene of the crime involving Gamble and Brown. His inability to find the scene of the Bell crime is no doubt the reason the jury found him not guilty of that crime. In any event, the victims were all young black women; Gamble and Brown had both been strangled while Bell was stabbed; their lower torsos were naked and they were generally lying with their legs in spread eagle fashion. Townsend had told the police that the women he killed were all prostitutes and he intended to help rid the world of them. In his mind they were all old enough to work instead of taking an honest man’s money! In confessing these crimes and his motive therefor, Townsend told the police that if he gets out of jail for these crimes, he would do the same thing again — as he put it “you all going to have to come and get me again.” In order to corroborate appellant’s confession regarding the homicides for which he was on trial, the State adduced evidence of six other homicides which occurred in 1979 involving black women, except for one white woman, all between the ages of 13 and 30. The victims were either known prostitutes or had been seen walking the streets leading Townsend to believe they were prostitutes. All of the incidents occurred in the same geographical area of Northwest Fort Laud-erdale — except for two which occurred in Miami in close proximity to each other. All of the homicides occurred on open lots surrounded by debris or weeds or a structure to hide the victims. They were all found partially nude or nude from the waist down with their clothing located nearby. Most of them were lying on their backs with their legs in spread eagle fashion. The crimes generally happened at night. In all but two of the homicides, the cause of death was strangulation.

Townsend confessed to all of the collateral crimes as well as those for which he was charged, and he took the police to the scene and corroborated facts known to the police which only the killer would know. No attack is made on the admissibility of those confessions. Townsend’s credibility was tested by the police by taking him to other crime scenes which involved crimes the police knew he did not commit and he denied knowledge of them.

One would suppose that no two crimes could be identical; thus, the key is similarity, not identity. The similarity in the commission of the collateral crimes referred to above is no mere general likeness. Rather, we hold the similar facts are identifiable and they pervade the compared factual situations. Therefore, the collateral crime evidence was relevant to prove identity and similar mode of operation as well as motive.

We next turn our attention to Townsend’s contention that the Williams rule evidence became a feature of the trial. It is true that the transcript contains over twice as many pages of testimony relative to the collateral crimes as there are pages relative to the crimes for which Townsend was on trial. It is also true that a majority of the exhibits involve the collateral crimes. However, given the number of similar crimes Townsend admitted committing which were so similar to the three for which he was being tried, the number of pages of testimony and exhibits should not be the sole test by any means. It must be kept in mind that although appellant confessed to these crimes including the Bell murder, the jury found him not guilty of that murder. So it is quite obvious that the jury’s judgment was not overwhelmed by the quantity of collateral crime evidence.

It is not unusual in adducing Williams rule evidence to have victims of several other crimes testify. For example, in Espey v. State, 407 So.2d 300 (Fla. 4th DCA 1981) where the defendant was charged with sexual battery of his granddaughter, six other victims of the same family testified to numerous other instances of sexual battery committed on them by the defendant. In Dean v. State, 277 So.2d 13 (Fla.1973) four other rape victims were allowed to testify to the defendant’s assault upon them and his modus operandi.

Townsend also contends the collateral crime evidence is too remote in time. The indictment pertains to crimes committed in 1973 and the collateral crimes occurred in 1978 and 1979. In Watkins v. State, 363 So.2d 575 (Fla. 3d DCA 1978) the testimony related to a common scheme or plan some six years earlier. State v. Stately right, 300 So.2d 674 (Fla.1974) involved similar crime evidence occurring five years prior to the crime on trial. In Crosby v. State, 237 So.2d 286 (Fla.2d DCA 1970) the court allowed testimony regarding similar offenses occurring four years prior to the offense charged. Thus, the evidence in question was not inadmissible because it was too remote.

Finally on this point, the trial judge gave a cautionary instruction no less than twelve times regarding the manner in which they should consider the collateral crime evidence.

Under these circumstances, we hold no reversible error has been demonstrated by Townsend’s first point on appeal.

During the course of the trial, appellant called a psychiatrist to testify in support of his insanity defense and as to other matters. The witness testified that appellant did not understand the difference between right and wrong and was susceptible to being led so that he might admit to crimes he did not commit. On cross examination, the State was allowed to inquire over objection about admissions Townsend made to the doctor regarding several of the collateral crimes used as Williams rule evidence. The doctor testified that he relied upon these admissions in arriving at his medical conclusions about Townsend. The admission of this testimony is the subject of Townsend’s second point on appeal.

Townsend seems to contend that under no circumstances may the State adduce testimony about incriminating statements made by a defendant to a psychiatrist relying upon United States v. Bohle, 445 F.2d 54 (7th Cir. 1971) and United States v. Cohen, 530 F.2d 43 (5th Cir. 1976). However, such a contention cannot be sustained. The correct rule is clearly set forth in Pouncy v. State, 353 So.2d 640 (Fla. 3d DCA 1977). There, the court held that where a psychiatrist is employed by counsel for a defendant to assist him in preparing a defense for his client and not to treat the defendant the State may not depose the expert or call him as a witness. The witness is subject to the attorney-client privilege. On the other hand, if the doctor is used as a witness, the privilege dissipates and he is subject to treatment as any other witness. See also United States v. Alvarez, 519 F.2d 1036 (3d Cir. 1975) and McMunn v. State, 264 So.2d 868 (Fla. 1st DCA 1972). Therefore, when Townsend called the psychiatrist to testify on his behalf to prove his defense of insanity, the witness was subject to examination as any other expert witness.

We find no merit to appellant’s third point.

Accordingly, the judgment and sentence appealed from are affirmed.

LETTS, C.J., and WALDEN, J., concur.


author: COBB, Judge.

text:
    CONSOLIDATED CAPITAL PROPERTIES, II, LTD., a California limited partnership, and Creekwood Village Associates, Ltd., a Florida limited partnership, Appellants, v. NATIONAL BANK OF NORTH AMERICA, a national banking association, Appellee.
    No. 81-1554.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 1982.
    Rehearing Denied Nov. 4, 1982.

      Michael G. Williamson, of Maguire, Voo-his & Wells, P.A., Orlando, for appellants.
    Emery H. Rosenbluth, Jr., of Subin, Shams, Rosenbluth & Moran, P.A., Orlando, for appellee.
   COBB, Judge.

This appeal arises from a judgment of foreclosure granted by the trial court on the counterclaim of the appellee, National Bank of North America (NBNA). The appellants, Consolidated Properties, II (Consolidated) and Creekwood Village Associates, Ltd. (Creekwood), were counter-defendants below. Creekwood was the mortgagor and Consolidated the purchaser of the mortgaged property. The sale to Consolidated without the prior written consent of NBNA was held to have effectively triggered a due-on-sale acceleration clause in the mortgage executed by Creekwood to NBNA.

In 1975 NBNA acquired the subject property, a 436-unit apartment complex known as Creekwood Villages, through foreclosure proceedings. In September, 1977, one Lawrence Gelb contacted Brian Haynes, an NBNA vice-president in charge of sale negotiations, in regard to the purchase of Creekwood Villages. Gelb and Jeffrey Ko-sow became the general partners of Creek-wood Village Associates, Ltd., a partnership which subsequently was formed in March 1978 for the purpose of acquiring Creek-wood Villages. Both parties concur with the trial judge’s findings contained in paragraph 4 of the final judgment to the effect that Gelb and Kosow were very experienced in the acquisition, sale and financing of real property and that the negotiations for the purchase of Creekwood Villages were extensive and detailed. Additionally, the parties admit to negotiations over acceleration provisions contained in paragraph 36 of the mortgage, said provisions referred to by the parties collectively as the “due-on-sale clause.” Said clause provides in relevant part:

If the mortgagor, without the prior writ-' ten consent of the mortgagee, (i) sells ... the premises ... or (iii) any other lien or mortgage is placed upon the premises, or (iv) the premises is managed by any entity or person other than a mortgagor, .. . then upon the happening of any of the foregoing, the mortgagee at its option may declare this mortgage and the indebtedness immediately due and payable.

Creekwood purchased the subject property from NBNA in March, 1978.

In April, 1980, Creekwood began discussions with Consolidated concerning Consolidated’s acquisition of the subject property by the use of a wraparound mortgage which would leave NBNA’s first mortgage in place. Acknowledging the acceleration clauses contained in the mortgage, the parties, in April, agreed to proceed with the sale regardless of NBNA’s position.

At a meeting on May 8, 1980, Gelb informed Haynes of the proposed sale to Consolidated. Gelb gave Haynes a prospectus containing financial information regarding Consolidated. Haynes indicated that NBNA would require payment of the mortgage in full upon Creekwood’s sale of the property. Gelb and Haynes disagreed over whether NBNA was entitled to accelerate the loan under these circumstances.

NBNA declined to approve the proposed sale on May 23, 1980. Haynes testified he had determined prior to the May 23 meeting that Consolidated’s proposed wraparound mortgage would have a detrimental effect on the bank’s position with respect to cash flow on its loan. One Allen Schrieber, a senior vice-president of NBNA, who was the chairman of the committee responsible for the decision not to approve, testified that at the May 23 meeting the primary consideration for the decision to withhold consent was insufficient information concerning the validity of enforcing the due-on-sale clause and the financing of the transaction. On cross-examination, Schrie-ber testified to the effect that prior to the May 23 meeting he had glanced through the prospectus furnished by Gelb, and that he had not obtained further information regarding Consolidated or the proposed sale. On June 10, 1980, Creekwood sold the subject property to Consolidated. Subsequently, NBNA made a written demand to Creekwood for full repayment of the loan.

Appellants contend that the trial judge simply applied strict contract principles while ignoring the Florida decisional law on the enforceability of the due-on-sale clause contained in the mortgage. The appellee, in its reply brief, and the trial judge, in his final judgment, rely on two cases that support the proposition that a court should enforce the terms of contract documents freely entered into by competent parties. Rodeway Inns of America v. Alpaugh, 390 So.2d 370 (Fla. 2d DCA 1980); MacArthur v. North Palm Beach Utilities, Inc., 202 So.2d 181 (Fla.1967). In Rodeway Inns, the Alpaughs leased their real property to Rodeway for purposes of building and operating a motel, and became signatories to a mortgage on the premises in order for Rodeway to obtain construction financing. Rodeway agreed to continue to remain liable for the mortgage in the event of its default under the lease. Following its default under the lease, Rodeway claimed that the construction of a motel on the property would unjustly enrich the Alpaughs and, therefore, it should be clear of its obligation to pay the mortgage. The court rejected Rodeway’s position and affirmed the judgment for the Alpaughs, emphasizing the fact that Rodeway was fully aware of the legal consequences of its agreement and should not be relieved of its obligation merely because it proved burdensome or otherwise improvident.

In MacArthur, the defendant borrowed money from the plaintiff, MacArthur, to purchase plaintiff’s real property for development, including the construction of a utility system. As part of the transaction, MacArthur was given an option to purchase the completed utility system. The Florida Supreme Court reversed the appellate and trial courts’ holdings that the plaintiff was not entitled to specific performance of the option. The court stated that in view of the agreements, considerations and mutual covenants between the parties, the option was a binding obligation.

From MacArthur, appellee argues that the acceleration clause was an integral part of the consideration moving between NBNA and Creekwood, and as such is enforceable. In response, appellants contend that in light of Florida decisional law dealing with the due-on-sale clause contained in mortgages, the principles of the above-mentioned cases are not dispositive as neither case involved a mortgage foreclosure or a due-on-sale clause.

Whether an acceleration provision of a mortgage may be utilized as a basis for foreclosure is dependent upon the facts and upon whether the invocation of the acceleration clause would be inequitable under the circumstances. Clark v. Lachenmeier, 237 So.2d 583 (Fla. 2d DCA 1970). Appellee acknowledges the necessity of application of equity principles in the determination of whether the acceleration clause is enforceable, but it disagrees with appellants as to the appropriate test. Appellee contends that its acceleration and foreclosure must be sustained unless appellants can prove such acceleration is unconscionable and the result would be inequitable. Appellants insist that enforcement of the due-on-sale clause is proper only upon a showing by the mortgagee of harm to its security.

Both appellants and appellee cite the case of Delgado v. Strong, 360 So.2d 73 (Fla.1978), wherein the Supreme Court stated:

It is well established that courts of equity may refuse to foreclose a mortgage when an acceleration of the due date would render the acceleration unconscionable and the result would be inequitable and unjust.... Consistent with this principle, courts have denied foreclosure of a mortgage where breach of the mortgage was merely a technical one and such breach did not place the security in jeopardy.

Id. at 75. At the trial level in Delgado the court had ordered acceleration of a mortgage because the owner/borrower had not provided the insurance policy required, and the owner had obtained its own insurance. The Fourth District Court of Appeal held that the trial court erred in entering a final judgment of foreclosure on a harmless technical breach of the mortgage agreement. On certiorari, the Florida Supreme Court quashed the decision of the district court and reinstated the judgment of the trial court, on the basis that there was competent evidence to support the trial judge’s determination that the security was in fact placed in jeopardy.

In support of their contention that acceleration is only proper upon a showing of impairment of the lender’s security, appellants rely heavily on First Federal Savings & Loan Ass'n. v. Lockwood, 385 So.2d 156 (Fla. 2d DCA 1980). Lockwood executed a mortgage containing a due-on-sale clause in favor of First Federal. Some five years later, Lockwood attempted to obtain First Federal’s consent to a sale of the property whereupon First Federal stated that the purchaser could assume the existing mortgage if he agreed to pay a higher interest rate. The sale occurred, and First Federal accelerated the debt in accordance with the due-on-sale clause. Thereafter, First Federal instituted a foreclosure action. At trial, the parties stipulated to the facts, leaving the sole legal issue to be whether the due-on-sale clause was enforceable, absent a showing of impairment of security. The Second District, affirming the trial court’s denial of relief to First Federal, adopted previous Florida decisions requiring the lender to demonstrate legitimate grounds for refusal to accept the transferee, in particular impairment of security, as an essential element of a plaintiff’s right to foreclose a mortgage. Delgado v. Strong; St. Martin v. McGee, 82 So.2d 736 (Fla.1955); Home Federal Savings & Loan Ass’n. of Palm Beach v. English, 249 So.2d 707 (Fla. 4th DCA 1971). Said the court:

We have noted divergent lines of cases throughout the United States dealing with the issue of due-on-sale clause enforcement. The common thread running through the various theoretical approaches is that such clauses are considered restraints on the alienation of real property and are enforceable as reasonable restraints only if their enforcement is not inequitable and unjust under the circumstances. In other words, if the lender can demonstrate that his legitimate interests are threatened and the foreclosure is equitable under the circumstances, then the court may enforce the acceleration of the debt and subsequent foreclosure. (Emphasis in original.)

Lockwood, 385 So.2d at 158.

Emphasizing the historical purpose of acceleration clauses — to protect the creditor from an action by the debtor which would jeopardize or impair the creditor’s security — the Lockwood court, in footnote 6, at page 159, cited the following language in Brown v. Avemco, 603 F.2d 1367, 1376 (9th Cir. 1979), as in accord with its position:

They (acceleration clauses) are not to be used offensively, e.g., for the commercial advantage of the creditor. Acceleration is a harsh remedy with draconian consequences for the debtor.

In an attempt to distinguish Lockwood, appellees state that the historical purpose of due-on-sale clauses is not applicable in this case, as NBNA’s purpose is obtaining the due-on-sale clause was to insure receipt of its sale price, in cash, when Creekwood sold the property. From a reading of Lockwood and the decisions cited therein, it appears that the historical basis of protecting the lender’s security is the only legal justification in Florida for such clauses. It is apparent from the record that the trial judge in this case was aware of the requirement of a showing of impaired security, as he questioned NBNA’s attorneys on the issue during closing argument, and he made a finding of impairment in his final ruling, contained in the final judgment.

The question left for consideration is whether the trial court’s finding of impairment is supported by competent evidence. Raulerson v. Metzger, 375 So.2d 576 (Fla. 5th DCA 1979). The primary arguments of NBNA are that the terms of the mortgage were extensively negotiated between it and Creekwood; that the acceleration clause, as quoted above, is not unconscionable; and that the intent of the parties was that NBNA would receive its money in a shorter period of time than the ten year term of the mortgage.

The appellants do not contend that the acceleration clause is unconscionable, only that its function is limited to situations involving an impairment of security. Moreover, it is clear from the record that NBNA did not negotiate and obtain a shorter period for the loan and did not negotiate and obtain an automatic increase in interest upon resale by Creekwood. In fact, Creek-wood initially opted for a thirty-year mortgage and this was negotiated down to ten years. Creekwood argues that allowing the bank to accelerate under these circumstances deprives it of the consideration for which it bargained: a ten-year loan and the right to sell the property without foreclosure with the consent, which cannot be unreasonably withheld, of the mortgagee.

Creekwood contends that the acceleration clause was intended only to protect against an impairment of the security, the traditional purpose of such clauses, and not to insure the bank a higher interest rate than that agreed upon by the parties at the time of execution of the mortgage. NBNA offered testimony of its officers at trial that the additional debt service created by the secondary financing would create a deficit cash flow, and that this could be harmful to property maintenance. It is abundantly clear, however, from the record and from the judgment, as augmented by comments of the trial judge, that the basis of the judgment is literal interpretation of the contract language — i.e., sale without written consent — and that NBNA’s trial evidence revealed that the only “impairment” it relied upon as a basis for foreclosure was the fact that it wanted its 5.2 million dollars back to lend out at higher interest rates. The bank never expressed any interest in obtaining additional information as to the cash flow that would be required to handle the secondary financing or in regard to Consolidated’s economic status or managerial capacity. Indeed, the undisputed evidence was that NBNA only gave cursory attention to information furnished to it in regard to Consolidated and in regard to projected improvement to its security.

As is apparent from the Lockwood opinion and the cases cited therein, there is no support for the view espoused by NBNA in this case. See also N. James Turner, Due-On-Sale Clause: Forcing the Issue, 56 Fla. B.J. 360 (April 1982). In the more recent case of Woodcrest Apartments, Ltd. v. IPA Realty, Etc., 397 So.2d 364 (Fla. 1st DCA 1981), the First District Court, citing to Lockwood, held that acceleration based on a “due-on-sale” clause in a mortgage requires that the mortgagee allege and prove an impairment of security. In stating the applicable Florida law in this regard, the Wood-crest opinion quoted the following language from Lockwood:

Florida courts recognize that a lender has the right to accelerate a mortgage when the violation fo the acceleration provision goes to the impairment of the lender’s security. They require that the lender in a foreclosure action bear the burden of demonstrating legitimate grounds for refusal to accept the transferee. By so doing, our courts protect borrowers by providing them with equitable defenses to inequitable accelerations by lenders. Clark v. Lachenmeier, 237 So.2d 583 (Fla. 2d DCA 1970). This approach is based on the historical purpose of acceleration clauses, which is to protect the security of lenders.

The recent opinion by the United States Supreme Court in Fidelity Federal Savings and Loan Association, et al. v. DeLaCuesta, - U.S. -, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982), is not applicable to the instant factual situation. Therein, the court held that under section 5(a) of the Home Owner’s Loan Act of 1933 (HOLA), a regulation issued in 1976 by the Federal Home Loan Bank Board authorizing and effectuating due-on-sale requirements in association loan instruments pre-empts conflicting state law. That holding is applicable only to loans from federal loan associations. NBNA is not such an association.

We agree with the Lockwood and Wood-crest opinions, and therefore find the trial court below erred in granting foreclosure.

REVERSED.

DAUKSCH and COWART, JJ„ concur.

      . Strong v. Delgado, 348 So.2d 56 (Fla. 4th DCA 1977).


text:
    WRIGHT & SEATON, INC., Appellant, v. Raymond W. PRESCOTT, Appellee.
    No. 80-1962.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 1982.
    Rehearing Denied Nov. 1, 1982.

      Larry Klein, West Palm Beach, and Nixon, Hargrave, Devans & Doyle, Palm Beach, for appellant.
    Edna L. Caruso, West Palm Beach, and Susan J. O’Hara, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a final judgment entered against an employer insurance agency in favor of the agency’s former employee. We reverse and remand.

Appellant is a general insurance agency which has been in business for over forty-five years in Palm Beach County. It employed appellee in May of 1978 and paid him a salary of $14,000 per year. In early 1979 appellee received a raise of $1,000, and on May 1, 1979, he and appellant executed an employment agreement.

By the terms of the agreement, appellant employed appellee for one year, reserving the right to terminate his employment at any time, with or without cause, upon written notice. Appellee’s salary was raised to $20,000 per year and he was to receive ten percent of net commission income on new business he produced. In return he was to perform such executive, administrative, sales or other duties as appellant assigned to him. Appellee also agreed not to engage in a business similar to or in any way competitive with the business of appellant or to solicit appellant’s customers during his employment and for three years following termination thereof.

Although the parties performed their agreement for over eleven months, appellee testified that in December of 1979, he had discussed the possibility of other employment with one of appellant’s former employees. At the time, they projected that appellee could work for the former employee were the latter to open an insurance agency and appellee to resolve the conflict created by his covenant not to compete with appellant. On April 16,1980, fourteen days before the agreement expired, appellee delivered to appellant a letter of resignation, effective as of the end of the month, in which he stated the agreement was “void for failure of consideration, inadequate consideration, and lack of mutuality.” Immediately two letters were sent to appellee on behalf of appellant. One expressed regret and advised that appellant’s management had intended to extend the agreement. The other accepted appellee’s resignation immediately, rather than as of the end of the month.

Appellee then went to work for the new agency appellant’s former employee had established in West Palm Beach. Appellant filed a complaint and the trial court, after conducting an evidentiary hearing, issued a temporary injunction. At trial, however, the court dissolved the injunction, dismissed the complaint with prejudice, and retained jurisdiction to assess appellee’s damages.

I

It was the trial court’s opinion that appellee’s covenant not to compete was unenforceable because the agreement lacked mutuality, which we interpret to mean a lack of mutuality of obligation. One of the most illuminating discussions we have come across with respect to “mutuality of obligations” appears in Meurer Steel Barrel Co. v. Martin, 1 F.2d 687, 688 (3d Cir. 1924):

As an unilateral contract is not founded on mutual promises, the doctrine of mutuality of obligation is inapplicable to such a contract. It is applicable, however, to a bilateral contract containing mutual executory promises because there both parties are bound by reciprocal obligations and the promise of one is the consideration for the promise of the other. If for any reason the promise of one party is not binding upon him, it is not a sufficient consideration for the promise of the other and the contract is void for want of consideration. Velie Motor Car Co. v. Kopmeier, 194 F. 324, 114 C.C.A. 284; Bernstein v. W.B. Mfg. Co., 238 Mass. 589, 131 N.E. 200. The terms “consideration” and “mutuality of obligation” are sometimes confused. “Consideration is essential; mutuality of obligation is not unless the want of mutuality would leave one party without a valid or available consideration for his promise. The doctrine of mutuality of obligation appears therefore to be merely one aspect of the rule that mutual promises constitute considerations' for each other. Where there is no other consideration for a contract, mutual promises must be binding on both parties. But where there is any other consideration for the contract, mutuality of obligation is not essential.”

See also Bales v. Journeymen Barbers’, Hairdressers’, Cosmetologists’ & Proprietors’ International Union Local No. 867, 239 So.2d 624 (Fla. 4th DCA 1970); 17 C.J.S. Contracts § 100 (1963).

We start out with the proposition that, in this case, the parties entered into a bilateral contract containing mutual executory promises. Appellant agreed to continue to employ and pay appellee; appellee agreed to work for appellant and not to compete with it for a period of time in a certain area when his employment terminated. Appellant retained the right, however, to terminate the employment without cause. But this right could only be exercised upon the giving of written notice. Given the foregoing, the initial inquiry (although, as we shall see, not the determinative one) is whether there was mutuality of obligation at the inception of the agreement and, if not, whether it was unnecessary because of the existence of other consideration; both are questions of law.

Our inclination is that mutuality of obligation did not exist when the parties executed their agreement because appellant had a right to terminate without cause, although we do not hold so expressly. Two Florida cases lead us in that direction. The first is DeMarco v. Publix Super Markets, Inc., 384 So.2d 1253, 1254 (Fla.1980), wherein the supreme court approved and quoted the following language from the opinion of the Third District Court of Appeal that was being reviewed:

“[W]here the term of employment is discretionary with either party or indefinite, then either party for any reason may terminate it at any time and no action may be maintained for breach of the employment contract.”

The second is the decision of the Second District Court of Appeal in Pick Kwik Food Stores, Inc. v. Tenser, 407 So.2d 216, 218 (Fla. 2d DCA 1981), in which it held:

[T]he executory features of the contract were void from the beginning for lack of consideration or, as the rule is sometimes expressed, for lack of mutuality.
... If one party has the unrestricted right to terminate the contract at any time, that party makes no promise at all and there is not sufficient consideration for the promise of the other.

It should be borne in mind that in DeMarco, Pick Kwik, and all the authorities upon which the latter decision relies the claims were based upon a refusal of one party to carry on with the contract: one of the parties reserved the right to cancel and did so and the other sought relief based on some executory theory resulting from the cancellation. The courts all held the cancellation cut-off relief, thus they denied same. We only mention this because legal principles arise out of factual contexts and the actions bred thereby and bilateral executo-ry contracts characteristically, but not necessarily, seem to involve the type of claim just mentioned.

Nevertheless, we will disregard the foregoing concern over mutual obligation at the inception of the agreement for two reasons. One may appear to be a thin reed, but the other is determinative. First, the obligation on appellant’s part to give written notice of termination can be held to be the consideration eliminating the need for mutual obligation. In Mangus v. Present, 135 So.2d 417, 418 (Fla.1961), the supreme court said:

In Henderson v. Kendrick, supra [82 Fla. 110, 89 So. 635, 637], we held, “The detriment which will constitute a consideration for a promise need not be an actual loss to the promisee. It is sufficient if he does something that he is not legally bound to do.”

In the absence of the parties’ agreement, appellant was not bound to provide appellee with written notice. The requirement that it do so can be held to be sufficient consideration to support the promise of the other party. It is stated in 1 S. Williston, A Treatise on the Law of Contracts § 105, at 418-19 (3d ed. 1957):

An agreement wherein one party reserves the right to cancel at his pleasure cannot create a contract.
Since the courts, however, do not favor arbitrary cancellation clauses, the tendency is to interpret even a slight restriction on the exercise of the right of cancellation as constituting such legal detriment as will satisfy the requirement of sufficient consideration; for example, where the reservation of right to cancel is for cause, or by written notice, or after a definite period of notice, or upon the occurrence of some extrinsic event, or is based on some other objective standard.

(Footnotes omitted.) See also 17 C.J.S. Contracts § 100(6) (1963).

Second, and more important, is the rule stated in 17 C.J.S. Contracts § 100(3), at 799-800 (1963):

Although a contract is lacking in mutuality at its inception, such defect may be cured by the subsequent conduct of the parties. Want of mutuality is no defense in the case of an executed contract, and a promise lacking mutuality at its inception becomes binding on the promisor after performance by the promisee.

(Footnotes omitted.) Not only does Florida follow that rule, Russell v. Martin, 88 So.2d 315 (Fla.1956); Sanchez v. Crandon Wholesale Drug Co., 173 So.2d 687 (Fla.1965), adopting Florida-Georgia Chemical Co. v. National Laboratories, Inc., 153 So.2d 752 (Fla. 1st DCA 1963), but it is applicable under the circumstances of this case.

If appellant continued to employ appellee, the latter promised that upon termination of his employment he would not compete with appellant. Even if we were to assume — and for the sake of discussion we do because appellant retained the right to cancel the agreement — an absence of mutuality of obligation at the inception and for the executory portion of the agreement, appellant completely performed its obligations to continue to employ and pay appellee for his services from the commencement date through April 16,1980. On that date — with only two weeks remaining on the one year term expressed in the agreement — appellee attempted to repudiate the agreement as being void for a variety of legal reasons and, contradictorily, unilaterally and cavalierly informed his employer that his employment would continue for two more weeks.

Faced with the letter of repudiation, appellant properly made April 16, 1980, the effective date of the termination of appel-lee’s employment rather than acquiescing to the inconsistencies in appellee’s announcement. If appellant did not perform for the entire year, it was only because appellee made it impossible for appellant to do so. Under such circumstances there was complete performance by appellant of what it had promised to do in exchange for appel-lee’s promise not to compete; as a result appellee’s promise not to compete became binding upon him and enforceable by injunction.

II

Additional reasons for enforcing appel-lee’s covenant not to compete have been noted in at least three decisions applying Florida law. Tasty Box Lunch Co. v. Kennedy, 121 So.2d 52, 54 (Fla. 3d DCA 1960), said:

Inasmuch as the employment was a continuing contract terminable at the will of the employer or the employee, the continued employment and agreement to pay commissions was consideration for the employee’s agreement not to compete.

The foregoing language was quoted with approval in McQuown v. Lakeland Window Cleaning Co., 136 So.2d 370, 371-72 (Fla. 2d DCA 1962). Finally, in Dickinson v. Auto Center Manufacturing Co., 639 F.2d 250, 253 (5th Cir. 1981), the court said:

[I]t is clear that in Florida the primary element of consideration essential to formation of a contract, see, e.g., Frissell v. Nichols, 94 Fla. 403, 114 So. 431 (1927), is satisfied when any act of a plaintiff from which a defendant derives benefit, or by any labor, detriment, or inconvenience sustained by a plaintiff at either defendant’s express or implied consent is present. Tampa Northern R.R. Co. v. City of Tampa, 104 Fla. 481, 485, 140 So. 311, 313 (1932). Moreover, the detriment which may be found to constitute adequate consideration for a promise need not be an actual loss to the promisor and may be based on either the express or implied consent of the promisee.
The Florida Courts’ application of these principles have been broad and have often been utilized to interpret employment contracts. Indeed, particularly where employment was a continuing contract terminable at the will of either the employer or employee, the Florida Courts have held continued employment constitutes adequate consideration to support a contract. Tasty Box Lunch Co. v. Kennedy, 121 So.2d 52, 54 (Fla.App.1960).

It concerns us that none of these three cases contains an in depth analysis of the question of mutual obligation because, as we remarked earlier, legal principles evolve from factual contexts.

Let us assume in the present case that immediately after appellee appended his name to the parties’ employment agreement, appellant delivered to him then and there a written notice that his employment was forthwith terminated without cause; or that this same notice was delivered to him one day, one week, or one month after employment had continued pursuant to the agreement, in which period no trade secrets became known to appellee. Would appellee be bound by his covenant or was the “promise” of continued employment only illusory? Accordingly, we are troubled by the phrase “terminable at will” that is employed in the three opinions in the absence of supportive analysis. Nevertheless, they represent the governing law in Florida on which employers and employees have relied for over twenty years and appellee has not provided us with argument sufficiently persuasive to disregard them. Here, although the relationship between the parties was terminable at will, their agreement required written notice. But most important and determinative, appellant employed appellee for eleven months and sixteen days in reliance upon his promise not to compete; their relationship would have lasted the entire year but for appellee’s attempted repudiation.

Ill

Turning to a totally different point, appellee argues only appellant’s notice of termination of employment actuated the covenant not to compete; since it was he who terminated their relationship, not appellant, the covenant never became operative. He derives this argument from the phrase “termination of his employment by the Company” in the agreement. We disagree with his interpretation. It is plain to us that the phrase “by the Company” in the following clause of the agreement refers to “employment,” not to “termination”:

Therefore, Employee agrees that during his employment by the Company and for a period of three years following the termination of his employment by the Company ....

(Emphasis supplied.)

The italicized phrase appears five times in paragraph FOURTH. It simply violates good sense to interpret the phrase four times as it appears, but on the fifth, critical occasion as if it only read “employment,” with the remainder of the phrase “by the Company” referring to the word “termination.” Numerous rules of construction preclude such a stilted reading. First, when ambiguous language “is susceptible of two constructions, the court will approve that construction which comports with logic and reason.” Baker & Co., Florida v. Goding, 317 So.2d 118, 119 (Fla. 3d DCA 1975). Second, as stated in Bay Management, Inc. v. Beau Monde, Inc., 366 So.2d 788, 791 (Fla. 2d DCA 1978):

In construing a contract the court must consider the objects to be accomplished, and to this end should place itself in the position of the parties when the contract was entered into.... A corollary to this is that the court should arrive at an interpretation consistent with reason, probability, and the practical aspect of the transaction between the parties....

(Citations omitted.) Third, a “contract should not be interpreted so as to render its operation inequitable as to either [of its] paripés].” Comwel Development Corp. v. City of Deerfield Beach, 382 So.2d 716, 718 (Fla. 4th DCA 1980). Fourth, grammatical construction of contracts generally requires that a relative or qualifying phrase be construed as referring to its nearest antecedent. 17A C.J.S. Contracts § 305 (1963). By applying the foregoing rules, it follows that in this case it is immaterial who terminated employment inasmuch as the covenant was actuated in either instance.

IV

We further conclude the facts of this case would not support a finding of overreaching or coercion. The employer clearly had a legal right to include in the agreement a covenant not to compete as evinced by sections 542.12(1) and (2)(a). In sanctioning anti-competition provisions, the Legislature undoubtedly considered that one of the bargaining parties would always be the employer and that the economic position of the employer generally would be superior to that of the employee. As was said in Tasty Box Lunch Co.:

To hold that the agreement is unenforceable because the bargaining parties were not on equal terms would void nearly all such agreements and this would defeat the purpose of the statute.

Id. at 54. Further, any so-called harshness of a covenant not to compete disregards the consideration flowing to the employee. Accordingly, the issues of overreaching, coercion, and harsh result merely because of the per se existence of a covenant have been put to rest.

Nevertheless, our having reversed, on remand the trial court must determine the issue of reasonableness of time and area and fashion an injunction in an appropriate manner. Having expressed our intent, the trial court is directed to proceed in accordance therewith.

HERSEY, J., and DANIEL S. PEARSON, Associate Judge, concur.

      . Paragraph FOURTH A of the employment agreement provided:
      The Company is engaged throughout the State of Florida in the business of a general property, liability and life insurance agency (the “Business of the Company”). Employee acknowledges that the loss of his services or the use of his services by a competitor would cause irreparable harm to the Company; and Employee agrees that he possesses knowledge, skills and a reputation in the Business of the Company which are, and will be, of substantial importance to the Business of the Company and which are special and unique. Therefore, Employee agrees that during his employment by the Company and for a period of three years following the termination of his employment by the Company (including the expiration and non-renewal of the Agreement) he will not (1) directly or indirectly, as a principal, officer, director, stockholder (except as the owner of less than five percent of the stock of a company, the stock of which is publicly traded), partner employee or in any other capacity whatsoever, without the prior written consent of the Company, engage in, or be or become asosciated [sic] with, or advise or assist any business, firm, partnership, individual, corporation or any other entity which is engaged in, any business or activity which is similar to or in any way competitive with the Business of the Company, its successors or assigns, in the following counties in the State of Florida: Broward, Palm Beach and Martin; or (2) solicit any customers or items of business of the Company, wherever located, that were on the books of the Company at any time during his employment by the Company.
      Pursuant to sections 542.12(1) and (2)(a), Florida Statutes (1979), covenants not to compete were enforceable when appellant filed the present suit. The statute provides:
      (1) Every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind, otherwise than is provided by subsections (2) and (3) hereof, is to that extent void.
      (2)(a) One who sells the goodwill of a business, or any shareholder of a corporation selling or otherwise disposing of all of his shares in said corporation, may agree with the buyer, and one who is employed as an agent or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area, so long as the buyer or any person deriving title to the goodwill from him, and so long as such employer continues to carry on a like business therein. Said agreements may, in the discretion of a court of competent jurisdiction, be enforced by injunction.
      The Legislature transferred the foregoing section, effective October 1, 1980, to chapter 542, where it became part of the Florida Antitrust Act of 1980 as section 542.33, Florida Statutes (Supp.1980).

      . The absence of mutuality of remedies would not destroy the agreement’s validity. As this court said in Bossert v. Palm Beach County Comprehensive Community Mental Health Center, Inc., 404 So.2d 1138, 1139 (Fla. 4th DCA 1981):
      The legal principle requiring mutuality in contracts does not require that in every case each party have the same remedy.

        See also Thompson v. Shell Petroleum Corp., 130 Fla. 652, 178 So. 413 (1938); Bacon v. Karr, 139 So.2d 166 (Fla. 2d DCA 1962). Appellee clearly could have brought an action against appellant based on the agreement if appellant had failed to pay him for his services. Merely because appellant was able to seek an injunction to prevent appellee from violating the covenant and appellee lacked a corresponding remedy did not affect the reciprocal duties of the parties.

      . See the discussion in Part II of this opinion.

      . After having informed appellant that their agreement was totally void, we are at a loss to understand on what basis appellee felt he would be kept on the payroll for the two weeks.

      . For future similar cases we cannot help but mention that the issue of mutuality may or may not have been timely raised, however, this was neither made an issue nor considered in this appeal. In Weiss v. Duro Chrome Corp., 207 F.2d 298, 300 (8th Cir. 1953), the court said:
      The contract here involved has been fully performed and it is too late now to attempt to plead want of mutuality.

      . Cases from other jurisdictions related to the ■ sufficiency of consideration for an employee’s covenant not to compete after commencement of his employment are collected in Annot., 51 A.L.R.3d 825 (1973).

      . See supra note 1.


author: WALDEN, Judge. LETTS, Chief Judge,

text:
    Jean K. KING, Appellant, v. Jerry A. KING, Appellee.
    No. 81-917.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 1982.
    Rehearing Denied Nov. 2, 1982.
    Joseph Reiter of Montgomery, Lytal, Re-iter, Denney & Searcy, P.A., and Edna L. Caruso, West Palm Beach, for appellant.
    Willard C. Wheeler, Jupiter, and Larry Klein, West Palm Beach, for appellee.
   WALDEN, Judge.

This is an appeal brought by the wife from a dissolution of marriage judgment. We affirm in part and reverse in part.

It was a 24 year marriage which produced two children, both now emancipated. The wife at dissolution was 48 years of age and the husband 50 years of age. The wife worked for the past 13 years as a school teacher with a gross yearly income of $18,-300.00. She also worked at the outset of the marriage for four and one-half years and primarily supported the parties while the husband attended college. The husband is a senior facilities design engineer with a gross annual income of approximately $51,-000.00.

The major marital asset was the jointly owned home which by judgment became owned by the parties as tenants in common. It has now been sold with each of the parties receiving approximately $60,000.00. Without detailing, the trial court with minor adjustment pretty much left the parties as he found them with the wife receiving assets worth about $84,406.00 (including the $60,000.00) and the husband receiving approximately $89,450.00 (including the $60,-000.00).

The wife has a health disorder which is not presently incapacitating.

Each of the parties apparently have a retirement benefit somewhere in the offing with the husband’s being superior. We do not plumb this circumstance as it is something that may be considered by the trial court at some future date when and if the parties or one of them retires, should it constitute a material change in circumstance. In the same vein, the husband now makes substantial overtime pay which he foresees may diminish or cease. Again, when and if this happens, the trial court may address this change, along with any other material changes that the future may bring.

The final judgment denied alimony to the wife saying, “Although the wife had some health problems, the evidence does not support the contention that these health problems have been or will likely cause income related problems in the foreseeable future. The wife is fully self supporting and the husband is not so well off financially as to justify equalization of the parties’ income.” We believe this to be error. We hold that the wife should be awarded permanent periodic alimony in an amount to be established by the trial court on remand. The proofs clearly show that the wife’s net income is substantially insufficient to meet her reasonable day to day needs. There is a marked differential between their respective incomes. The imbalance is of such magnitude as to reduce the wife’s life style to near poverty level but leave the husband with an enjoyment of his former life style, or nearly so. While we do not say that the incomes should be necessarily equalized, we do say that here the wife has been imper-missibly “shortchanged” under the principles of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). This is particularly true considering the age of the parties, the length of this marriage, the wife’s limited earning ability, and the fact that, as matters stand, the wife would be placed on the charity of the world if she should become disabled. See also McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), cert. denied, 357 So.2d 186 (Fla.1978), and Cowan v. Cowan, 389 So.2d 1187 (Fla. 5th DCA 1980), pet. for rev. denied, 397 So.2d 777 (Fla.1981).

We affirm, with the exception hereafter mentioned, the trial court’s judgment and its exercise of discretion in not awarding attorney’s fees to the wife and in not awarding the wife additional lump sum alimony. Canakaris v. Canakaris, supra. Now to the exception. There was a savings account in the name of the husband in the sum of $12,200.00. The husband testified without reservation that one-half or $6,100.00 of that sum belonged to the wife. Upon remand $6,100.00 should be restored to the wife.

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

GLICKSTEIN,. J., concurs.

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

LETTS, Chief Judge,

dissenting in part:

I dissent from that part of the opinion which reverses the trial court’s failure to award permanent periodic alimony. It is true I prefer the result reached by the majority, but in my view the trial court’s disposition is not reversible when one considers all the facts.


author: GRIMES, Acting Chief Judge.

text:
    James R. MILLER, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-8 to 82-14.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1982.
    Rehearing Denied Oct. 17, 1982.

      Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

This is an appeal from the revocation of seven orders of probation which resulted in sentences consecutively totalling one hundred fourteen years of imprisonment.

Appellant was charged with violating his probation by committing the offense of attempted burglary. The evidence at the revocation hearing established that appellant and his two companions left their car beside the road with the hood raised. The three men walked to a nearby house allegedly to use the telephone to call a wrecker. One of the men, Hunnicutt, walked up to the house and knocked on the door. Joyce Brill, who was inside, did not answer because she thought he might be a “solicitor.” Hunni-cutt walked towards the rear of the house with a crowbar in his hand. Brill then

heard her garage door being opened. The garage was attached to the house, and there was a door from the interior of the garage into the house. Brill also heard her dog barking and saw him rolling down the driveway as if he had been kicked. She began screaming for help. Hunnicutt ran through a wooded area where he was joined by the appellant and the third person.

The police later stopped the three men at a nearby shopping center. Appellant told one of the officers that after his car broke down they had walked in a westerly direction, which was away from Brill's house, and he denied having been in the woods. At the hearing, appellant said he had lied to the officers because he was afraid that the incident might affect his probationary status. He testified that he never got closer than ten feet from Brill’s house and that he had no intention of burglarizing it or helping anyone else do so. A policeman stated that he was able to crank up appellant’s car without any trouble. Appellant’s father-in-law, who was an auto mechanic, testified that appellant’s car had a mechanical problem whereby it would stall and refuse to start until it sat for about fifteen minutes. He said that this had occurred about thirty times in the last six months.

Clearly, the evidence presented at the revocation hearing would not have supported appellant’s conviction for attempted burglary. In R.W.G. v. State, 395 So.2d 1279 (Fla. 2d DCA 1981), this court reversed a burglary conviction for insufficiency of evidence. The accused juvenile was outside the premises being burglarized. Even though he knew what his companions were doing, he contended that he had refused to participate in the crime. We held that the evidence presented was not inconsistent with a reasonable hypothesis of innocence. Likewise, in Morgan v. State, 355 So.2d 149 (Fla. 1st DCA 1978), the court held that flight from an actual burglary scene even with pliers and a screwdriver was insufficient to support a burglary conviction.

Of course, evidence to support a criminal conviction is not necessary to sustain a probation revocation order. Bernhardt v. State, 288 So.2d 490 (Fla.1974). The burden of proof to revoke probation is the greater weight of the evidence. Ivey v. State, 308 So.2d 565 (Fla.2d DCA 1975); Singletary v. State, 290 So.2d 116 (Fla. 4th DCA 1974); see also § 948.06, Fla.Stat. (1981). Yet, where the revocation is predicated upon the commission of a crime, mere suspicion that the probationer was involved in criminal activity does not suffice.

For example, where a probationer asserted that he was merely in an apartment to look it over as a possible place to rent, the court in Clark v. State, 402 So.2d 43 (Fla. 4th DCA 1981), held that his probation could not be revoked simply because the police discovered drugs in the apartment. In Hartley v. State, 372 So.2d 1180 (Fla. 2d DCA 1979), probation was revoked as a result of the probationer having given a false name and birthdate to a policeman who was investigating a burglary. The court reversed because this conduct did not fall within the charge of obstructing justice by disguise.

Viewed in the light most favorable to the state, the evidence in the instant case failed to establish a reasonable ground to believe that appellant violated his probation. Appellant made no overt effort to burglarize Ms. Brill’s home. His subsequent flight and false statements to the police, by themselves, were insufficient to create an inference of guilt. Accordingly, this cause is reversed and remanded to the trial court for reinstatement of the original order placing appellant on probation. Our conclusion in this case makes it unnecessary to address appellant’s other two issues.

RYDER and SCHOONOVER, JJ., concur.


author: PER CURIAM.

text:
    Donald Edward CLAY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1777.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 1982.
    Rehearing Denied Nov. 3, 1982.
    Carl H. Lida of Law Offices of Carl H. Lida, P.A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of a narcotics offense and placed on five years probation with the special condition that he spend the first two years in prison. We find that the trial court correctly denied defendant’s motion to suppress, see United States v. Ross, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), and, consequently, we affirm the conviction.

As to the split-sentence, however, we find that it violates the mandate of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). There, the Florida Supreme Court held that incarceration as a condition of probation must be for a period of less than one year. 396 So.2d at 1111.

Here, the trial court did not have the benefit of Villery at the time of sentencing although the defendant did lodge a proper objection. Since Villery applies retroactively we remand with instructions to resen-tence the appellant in accord with the following provision from Villery:

[O]ne who has been given a split sentence probation contrary to the mandate of [Villery] is entitled upon application to have the illegal order corrected. In correcting the order, the trial court has the option either of modifying the order to make it legal or of withdrawing it and imposing a sentence of imprisonment. However, unless a condition of probation is determined to have been violated, the court may not extend the term of probation either with or without incarceration, nor may the court impose a sentence of imprisonment for a period of time in excess of the original total term of probation.

396 So.2d at 1111-12.

AFFIRMED WITH INSTRUCTIONS.

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


author: BERANEK, Judge. HURLEY, Judge,

text:
    Gwendolyn McDONALD, Appellant, v. Wilson McDONALD, Appellee.
    No. 81-994.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 1982.
    Rehearing Denied Nov. 4, 1982.
    I.C. Smith, West Palm Beach, for appellant.
    Charles H. Warwick, III, of Warwick Campbell & Hewitt, Palm Beach, for appel-lee.
   BERANEK, Judge.

Appellant/wife appeals that portion of the final judgment of dissolution which awarded appellee/husband a one-half interest in a residence. We reverse.

Married in 1937, the couple lived in one room of a rooming house for many years. Two children were born, and the wife told the husband she wanted a house for the family to live in. The husband refused her request and for the ensuing years the wife worked hard to acquire the house over the objections of and totally without any cooperation from the husband. The wife solemnly promised husband that she alone would pay for the house. By extraordinary effort on her part she did so.

The wife was a clerk in the Elizabeth Arden Shop in Palm Beach while the husband did odd jobs and worked as a golf caddy. In 1961, the wife, with financial assistance from her sister and brother-in-law, acquired two undeveloped pieces of property in Riviera Beach. These parcels were previously owned by her relatives. The wife tried twice to secure financing for the house, but the husband intentionally squelched both attempts. The wife finally secured a mortgage to finance the construction of a house upon this property. It was always the husband's position that he did not want to be obligated to anyone financially. The husband grudgingly co-signed on the mortgage, but only after the wife assured him that she would make all of the payments herself. The wife literally had to beg her husband to sign the papers. She took title in her own name and, helped in part by a bequest from her late employer’s estate, she made all the necessary payments on the house which is currently valued somewhere between $15,000 and $45,000.

The general financial pattern of the marriage was that both parties contributed to a very modest common fund for the day-today living expenses of the family. All money earned by the wife not used for these day to day living expenses was spent to acquire the house. The approximate total expenditure for the house and land was $10,000. All money made by the husband over his contributions to the modest fund for common living expenses was placed in his own savings account, which is currently valued at $10,000. Basically, the wife spent a total of $10,000 to acquire the house and the husband invested his funds in a savings account which now contains $10,000. In its final judgment, the trial court ordered the wife to convey a one-half interest in the home to the husband and ordered the husband to pay the wife the sum of $5,000 from his bank account.

We see no justification for the award to the husband. Indeed, the special facts of the case and all equitable considerations favor the wife. In the judgment, the trial court stated that each party was entitled to a fifty percent equity in the assets of the other. The house was titled in the name of the wife and the husband attempted to prove a special equity therein. The term “special equity” was created to describe a vested interest in property brought into the marriage or acquired during the marriage because of an extraordinary contribution toward the acquisition of the property over and above normal marital duties. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Tolin v. Tolin, 401 So.2d 1167 (Fla. 4th DCA 1981). The husband was required to prove that he had developed a vested interest in the property through his contribution of funds or services of an extraordinary nature. The husband failed to do so. In fact, the record clearly shows the wife paid for the house with the help of her family and with her own funds, part of which was derived from an inheritance. There is no evidence in the record that the husband contributed any funds for the home. The most compelling fact in the case was the husband’s steadfast refusal to have anything to do with acquiring the house. This marriage was by no means a partnership as to this asset. Thus, we conclude the husband was not entitled to an interest in the house. Appellee has not cross-appealed the trial court’s division of his savings account, but appellant concedes the account should remain the property of the husband. The judgment is reversed and the matter remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

BURNSTEIN, MIETTE K., Associate Judge, concurs.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

The distribution of marital assets in this ease was expressly predicated on the following finding of fact:

It is through the joint effort and earnings of the husband and wife that the wife has been able to acquire the residence in her sole name and it is through their joint efforts that the husband has been able to acquire the savings account in his sole name.
This is another case that illustrates the fact that a marriage is not a business. The evidence convinces the court that it is completely impossible, at least in this case, to ascertain whose funds went into the house and whose funds into the savings account. It was the husband’s earnings and payments of some bills that allowed the wife to make the mortgage payments. Conversely her contributions of earnings to the marriage allowed the husband to save the money that he saved.

In light of the above finding which, I believe, is supported by the record, I cannot characterize an equal division of assets ae-quired during a forty-four year marriage as one which no reasonable person could have devised. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). In my view, the majority has reweighed the evidence and substituted its judgment for that of the trier of fact. Thus, I respectfully dissent.


author: LETTS, Chief Judge.

text:
    William BRADLEY, Appellant, v. Mary BRADLEY, Appellee.
    No. 81-2377.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 1982.
    Rehearing Denied Nov. 3, 1982.
    John A. Friedman of Casoria, Goff & Friedman, P.A., Fort Lauderdale, for appellant.
    Henry A. Fricke of Spear, Deuschle & Curran, P.A., Fort Lauderdale, for appellee.
   LETTS, Chief Judge.

This appeal from a final judgment of dissolution must be affirmed on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Nonetheless, we find it noteworthy that although the periodic permanent award is very small, the wife received significant lump sum alimony. Upon dissolution, each party had assets of some $131,000 out of which the husband was required to pay $40,000 in lump sum. As a result, the husband’s assets have been reduced to $91,-000 and the wife’s increased to $171,000 — an $80,000 disparity nearly equal to his remaining net worth. This lump sum award should be taken into account in the husband’s favor if the wife later attempts to have the periodic award increased because of significantly changed circumstances. We make this point because it is obvious from reading the final judgment that the periodic award, while inadequate, is sustainable because of the accompanying lump sum disposition.

We also decline to award the wife attorneys’ fees on appeal. True, she has prevailed, but her capital assets are significantly greater than those of her husband.

HERSEY and DELL, JJ., concur.


author: DANIEL S. PEARSON, Judge. BASKIN, Judge

text:
    Louis MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1742.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

As was anticipated in Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982) (en banc) (Pearson, J., specially concurring), we must now confront the problem of an ambiguous agreement between the State and the defendant as to dispositiveness.

In the present case, the defendant was charged with manslaughter by operating a motor vehicle while intoxicated. He filed a series of pretrial motions, which were heard by the trial court during evidentiary hearings conducted on two successive days. The motions which were the subject of these hearings were: (1) a motion to dismiss on the ground, inter alia, that the statutory term “intoxication” is too vague to form the basis for a criminal charge; (2) a motion to dismiss alleging that the State’s destruction of an ampule used in a breathalyzer test administered to the defendant deprived the defendant of the right to test the ampule and uncover potentially exculpatory evidence; (3) a motion to suppress the results of the breathalyzer test on the ground that the test was part of an accident investigation and inadmissible under Section 316.066, Florida Statutes (1979); (4) a motion to suppress statements made by the defendant (a) at the scene of the accident and (b) at the stationhouse after his arrest for manslaughter, on the grounds that these statements were obtained as part of an accident investigation, thus privileged under Section 316.066, Florida Statutes (1979), and were obtained in violation of the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

At the conclusion of the second day of hearings, the trial court denied the defendant’s motions. Specifically preserving his right to appeal from these adverse rulings, the defendant changed his plea to nolo con-tendere. His counsel announced:

“... The State and the defense stipulate that had the motions pending before this Court been granted .. . that the Court heard yesterday and today — such a ruling would have been dispositive of count one.”

The stipulation is not clear. The State may have merely agreed that those motions which were legally dispositive under Brown v. State, 376 So.2d 382 (Fla.1979), were legally dispositive — that is, if the defendant prevailed in the appellate court on either of his motions to dismiss, such a decision would be dispositive of the case. The defendant, however, has not urged the trial court’s denial of his motions to dismiss as error on this appeal, a rather clear indication that the defendant understood the agreement to cover the motions to suppress. But even if the suppression motions were to be covered by the stipulation, the State may have intended that if the results of the breathalyzer test and the defendant’s statements at the scene of the accident and the defendant’s statements at the stationhouse were suppressed, it would not proceed with the prosecution. On the other hand, the defendant may have understood the agreement to be that if either the results of the breathalyzer test or his statements at the scene of the accident or his statements at the stationhouse were ultimately suppressed, the State would not proceed with the prosecution. We simply cannot tell what the parties agreed to.

Moreover, in the present case, we cannot, as was done in Finney v. State, supra, ignore the ambiguity and undertake a review of all the defendant’s suppression claims, which, only if our review resulted in either the State or the defendant prevailing on all the rulings, would enable us to dispose of the case. We are prevented from such a complete disposition, because (a) if the stipulation covered only the motions to dismiss, the defendant has not urged reversal of these rulings, and we would be compelled to affirm; (b) if the agreement was that the State would not further prosecute if the defendant prevailed on the ruling denying suppression of his statements at the scene of the accident, the State’s concession on appeal that suppression of these statements was required under Section 316.066, Florida Statutes (1979), would compel us to reverse and order the defendant discharged. Thus, it is impossible for either the State or the defendant to prevail on all the trial court’s rulings which may have been included within the ambiguous agreement.

Accordingly, we relinquish jurisdiction to the trial court for the purpose of having the agreement as to dispositiveness clarified. If no clear agreement can be reached, the trial court should permit the defendant to withdraw his nolo contendere plea or reaffirm that plea without any agreement.

Remanded for further proceedings.

BASKIN, Judge

(dissenting).

As I indicated in my dissents in Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982) and Furr v. State, 420 So.2d 341 (Fla. 3d DCA 1982), I am unwilling to adopt the majority view because it disregards the supreme court decision in Brown v. State, 376 So.2d 382 (Fla.1979), which holds that an issue must be dispositive before an appellate court may accept review. If reversal of any of the issues reserved would permit the state to proceed to trial, the questions presented cannot be disposi-tive, and the defendant was misled into entering his plea with the understanding that we would accept review. I would therefore remand the cause to permit defendant Martinez to withdraw his plea on the ground that the absence of a dispositive issue precludes our review.

      . The State agreed to dismiss Count Two, charging vehicular homicide, upon the defendant’s entry of a nolo contendere plea to Count One.

      . Had the defendant sought review only of the rulings on his motions to dismiss, then, independent of the agreement, these motions would be legally dispositive under Brown v. State, supra, and we would have jurisdiction to review these rulings. But had the defendant sought review of the rulings on his motions to dismiss along with the rulings on his motions to suppress, then because of the ambiguous agreement, the motions to dismiss would no longer be dispositive, since a ruling in the State’s favor on these motions would not end the case. The test for dispositiveness, under either Brown or Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff’d, 392 So.2d 1324 (Fla.1981), is whether our decision in favor of either party would end the case.

      . Even were it not impossible, it is a waste of judicial labor for us to undertake review of all the claims for the sole purpose of determining whether they all can be decided in favor of one party or the other, when, if they cannot be so decided, we must send the matter back to the trial court for a clarification of the agreement.

      . By virtue of the State’s agreement, as ambiguous as it is, we know that something is dispos-itive and that the defendant’s right to appeal survives the entry of his nolo contendere plea. The instant situation can be likened to that of a premature appeal where we hold the matter in abeyance awaiting the entry of an appealable order. See, e.g., Gries Investment Company v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980). Here we await the entry of an appealable agreement.