author: SCHEB, Chief Judge.

text:
    STATE of Florida, Appellant, v. Charles Lewis BROWN, Appellee.
    No. 81-962.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellant.
    Christopher F. Wells of Harris, Barrett & Dew, St. Petersburg, for appellee.
   SCHEB, Chief Judge.

On this appeal we must determine the validity of a cotenant’s consent to a war-rantless search of the defendant’s apartment.

The state charged Charles Lewis Brown with cultivation of marijuana in violation of section 893.13(1)(a)2., Florida Statutes (1979). Brown pled not guilty. Prior to trial he moved to suppress the contraband seized from the apartment which he occupied jointly with his cotenant, William Bailey. The trial court granted the motion, and the state filed this appeal. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B).

While the trial judge did not state the basis of his ruling, the defendant suggests that the court ruled in his favor because it refused to consider hearsay evidence introduced by the state on the issue of whether his cotenant validly consented to a search of the apartment. The state, in urging a reversal of the judge’s order, posits that the court erroneously ruled for the defendant because the court found the evidence on the issue of consent to be insufficient.

Officer J. Cornish was the only witness who testified at the suppression hearing. The relevant facts as developed from his testimony are as follows: On September 3, 1980, Officer Cornish and Detective W. McCann of the St. Petersburg Beach Police Department responded to an anonymous telephone tip that marijuana plants were being grown on a porch at 7950 Blind Pass Road, Apartment 4. They proceeded to drive to that address in an unmarked car. Once there, Cornish exited the car and walked past the ground floor apartment 4 on the sidewalk running between the apartment building and the apartment parking lot. There, from a distance of approximately four to five feet, he observed two plants in a white plastic bucket on the apartment’s screen porch. Based upon his police training and field experience, Cornish recognized the plants to be marijuana.

Cornish returned to the car, and the officers drove around the block and parked in the apartment parking lot. Both officers exited the car. Intending to go to apartment 4, they observed a white male leaving the building which housed that apartment. As the man proceeded to enter a vehicle, the officers approached him. They identified themselves as police officers and the man identified himself as William Bailey.

The officers asked Bailey if he lived in apartment 4, and he replied that he did. They requested permission to go into the apartment to speak to him “about a matter,” without indicating that the matter they wished to discuss concerned the marijuana plants. Bailey walked back to apartment 4, unlocked the door, and entered with them. The defendant was working at this time in a local restaurant. Upon entry, the officers read Bailey his Miranda rights, and Bailey acknowledged that he understood them. Cornish then inquired as to the location of the marijuana plants that he had seen. Bailey stated that they were in one of the two bedrooms. With Bailey’s permission, Cornish walked to the edge of the living room and from there looked into the bedroom. From his position Cornish observed in plain view the two marijuana plants in the white plastic buckets. Cornish seized the plants and came back and asked Bailey if he would consent to a search of the entire apartment. Bailey, at first reluctant, asked if he had a choice. Cornish replied that he did have a choice. Bailey then consented and the officers conducted a search which resulted in the seizure of a small bag of marijuana, a pipe containing marijuana, several roaches, and several marijuana seeds. According to Cornish, Bailey told him that one plant belonged to the defendant and the other to him. Bailey was arrested immediately, and the defendant was arrested subsequently at the restaurant where he worked.

At the outset, we reject the state’s argument that the defendant lacks standing to challenge the validity of the warrantless search. One who resides in an apartment that he rents or owns has a legitimate expectation of privacy there. See Katz v. United States, 389 U.S. 347, 351, n. 8, 88 S.Ct. 507, 511, n.8, 19 L.Ed.2d 576 (1967). See also State v. Morsman, 394 So.2d 408, 409 (Fla.1981), cert. den. 452 U.S. 930, 101 S.Ct. 3066, 69 L.Ed.2d 431 (1981).

Having concluded that defendant Brown has standing to challenge the instant search, we first consider whether the court could receive over the defendant’s objection hearsay evidence regarding the issue of the third-party consent. In United States v. Matlock, 415 U.S. 164, 172-75, 94 S.Ct. 988, 993-95, 39 L.Ed.2d 242 (1974), the Supreme Court, noting that the exclusionary rules of evidence, aside from the rules of privilege, are not normally applicable at suppression hearings, held that hearsay evidence may be admitted at suppression hearings on the issue of third-party consent. The defendant, however, asserts that the hearsay evidence should not have been admitted here since he contends that the facts in the instant case differ materially from those in Matlock. Specifically, he points out that in Matlock the third party who consented to a warrantless search was available for cross-examination at the suppression hearing, whereas here, Bailey was not.

This difference is of no moment. Bailey’s credibility was corroborated by several factors. First, he admitted that he owned one of the plants. This was a statement against penal interest and admissions against interest need not be excluded as hearsay. Baker v. State, 336 So.2d 364, 367 (Fla.1976). Next, the defendant, upon his arrest, confessed that he owned one of the marijuana plants and stated that Bailey owned the other. This is exactly what Cornish testified that Bailey had previously told the officers. Since Cornish testified in detail as to what Bailey stated and was cross-examined, it would be inappropriate to assume that he committed perjury in relating his conversation with Bailey. McCray v. Illinois, 386 U.S. 300, 313, 87 S.Ct. 1056, 1063, 18 L.Ed.2d 62 (1967). We therefore hold that it was proper for the trial court to receive hearsay evidence on the matter of the third-party consent, and such evidence should have been considered by the court.

Finally, we must decide whether the evidence at the suppression hearing demonstrated that Bailey’s consent was sufficient to allow a search of the apartment. Bailey’s consent was valid if it was freely and voluntarily given and if Bailey had authority to permit the officers to search in the areas where they seized the contraband.

A warrantless search of property by state authorities is valid where consent is voluntarily and freely given. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). Whether consent was freely and voluntarily given is determined from the totality of the circumstances. Id. at 227, 93 S.Ct. at 2047. An individual need not have knowledge of his right to refuse consent. Id. However, where the state relies on consent to uphold the legality of the warrantless search, it has the burden of establishing that this consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). To sustain its burden, the state must prove voluntary consent by clear and convincing evidence. Norman v. State, 379 So.2d 643, 646 (Fla.1980).

Voluntariness aside, where two people have common authority to use, occupy or possess effects or premises, either may consent to a search. Matlock, 415 U.S. at 169-71, 98 S.Ct. at 992-93; Silva v. State, 344 So.2d 559, 562 (Fla.1977); United States v. Jones, 580 F.2d 785, 787 (5th Cir. 1978); Lawton v. State, 320 So.2d 463, 464 (Fla. 2d DCA 1975); Padron v. State, 328 So.2d 216, 217 (Fla. 4th DCA 1976); Lewis v. State, 296 So.2d 575, 577 (Fla. 1st DCA 1974).

A careful review of the evidence indicates to us that Bailey had the requisite authority to consent and that the state proved by clear and convincing evidence that his consent was freely and voluntarily given. Bailey’s consent to allow the officers to enter the apartment was voluntary. The officers were straightforward in their approach. They did not gain entry by either subterfuge or coercion. They identified themselves in the parking lot and peacefully requested and were granted permission to enter the apartment. Bailey, as a cotenant, had authority to allow the officers to enter the apartment. Once inside the apartment, Bailey freely granted Cornish permission to venture into the living room. Bailey, as a cotenant, had authority to permit Cornish to traverse the living room as this is a common area. The seizure of the marijuana plants from the defendant’s bedroom occurred after Cornish sighted them from his position in the living room. The seizure of the plants was thus justified under the plain view doctrine. See Hall v. State, 395 So.2d 1258 (Fla. 2d DCA 1981). Hence, the plants are admissible into evidence. Moreover, the pipe containing marijuana which was seized from a living room table pursuant to Bailey’s voluntary consent is also admissible into evidence since Bailey, as a cotenant, had authority to permit a search of the living room. Matlock; Silva; Jones; Lawton; Padron; Lewis.

We agree with the trial judge’s decision to suppress the several roaches, several marijuana seeds, and small bag containing marijuana which were seized from the defendant’s bedroom.

Accordingly, we reverse that portion of the order suppressing the marijuana plants and pipe containing marijuana, and affirm that portion suppressing the roaches, marijuana seeds, and bag containing marijuana. We remand for further proceedings consistent with this opinion.

GRIMES and CAMPBELL, JJ., concur.


source: Caselaw Access Project

author: SCHWARTZ, Judge.

license: Public Domain

text:
    Matthew WEINSTEIN, as Guardian Ad Litem of the unborn children of David L. Mackey, etc., and Security Trust Company and Eric C. Van Enter, as Trustees of Trust under Modified Trust Agreement of Ella C. Levis, Appellants, v. Leslie L. MACKEY, a minor, Jennifer L. Mackey, a minor, David L. Mackey, Jr., a minor, and Kirk B. Mackey, a minor, Appellees.
    Nos. 80-2257, 80-2348.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 1982.

      Matt Weinstein, South Miami, Hyzer, Knight & Lund and Eric C. Van Enter and George L. Knight, Miami, for appellants.
    Giles, Hedrick & Robinson and Eugene B. Cawood, Orlando, for appellees.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

In 1973, Ella Levis executed a modified trust agreement which in part provided that after her death, the net income from a specified portion of the corpus, which consisted entirely of personalty, was to be paid “for the duration of their natural lives” to her nephew Dr. David L. Mackey and his wife, Shirley R. Mackey. Upon the death of the survivor of the Mackeys, the principal of their share was to be distributed to Dr. Mackey’s children “including children born after my death, with a predeceased child’s issue taking by representation.” Miss Levis died on April 25,1979 at the age of ninety-three. Dr. Mackey was then forty-two years of age and had four children, born between 1965 and 1970. In January, 1980, both Dr. and Mrs. Mackey executed unconditional disclaimers of their right to the income. Shortly thereafter, the trustees brought the present action for a construction of the effect of th’e disclaimers and instructions as to the proper disposition of the income and principal in question. Over the contrary contentions of the trustees and a guardian ad litem appointed to represent Dr. Mackey’s unborn children, the trial judge ruled that the disclaimers accelerated the remainder interest so that it was immediately distributable to the four living children, to the exclusion of any afterborn ones. We affirm that conclusion.

The issue before us concerns the doctrine of acceleration, which

refers to the hastening of the owner of a future interest towards a status of present possession or enjoyment by reason of the failure of the preceding estate. 2 Simes & Smith, Law of Future Interests (2 Ed.), 263, What is Acceleration, Section 791. The doctrine of acceleration is generally used when the temporary interest, preceding the remainder, fails to come into existence, or, as in the ease sub judice, coming into existence, terminates in some manner for which the testator did not provide.... The rationale given for this rule in 2 Restatement of Property 962, Comment a, Section 231 (1936), is that acceleration is in accordance with what is normally to be inferred as the intent of the ‘conveyor’ . .. namely that as each successive interest sought to be created by him ends or becomes impossible, the next interest in order should move up. However, the application of the doctrine of acceleration must be in furtherance of the intention of the testator, and never in contravention thereof.

Ohio National Bank of Columbus v. Adair, 54 Ohio St.2d 26, 374 N.E.2d 415, 417 (1978). While these general principles have become well-established, Jackson v. Exchange National Bank of Tampa, 152 Fla. 528, 12 So.2d 450 (1943); Murphy v. Murphy, 125 Fla. 855, 170 So. 856 (1936), the question of their applicability to a transfer of the kind involved here is one of initial impression in this state.

The gift of the principal of the trust to the children of Dr. Mackey is a vested remainder in those who have already been born, with their share subject to proportionate diminishment by the birth of additional children. As to this type of interest, which is described as a remainder vested subject to open, L. Simes & A. Smith, The Law of Future Interests § 799 (2d ed. 1956); 2A R. Powell, The Law of Real Property § 309[5][c] (rev.ed. P. Rohan 1977), the generally accepted rule of construction is that a disclaimer of the prior interest indeed accelerates the remainder interest of the existing class members, and, most significantly, “closes the class” as of that time, thus eliminating any right of the unborn. The principle is stated as follows in Restatement of Property § 231, Comment i (1936).

[W]hen the renounced interest is the only hindrance to the succeeding interest becoming forthwith a present interest and the succeeding interest is limited as a gift to a class in such manner that the class can increase its membership only during the stipulated period of the renounced interest, then such increase in membership is to be construed as having been intended to occur only during the actual continuance of the attempted prior interest. The renunciation of such attempted prior interest prevents the period during which such increase was intended to be possible from ever existing. The accelerated interest of each of the persons who is a member of the class at the time when the creating conveyance becomes operative is not subject to being diminished in size by such class thereafter and during the stipulated period of the renounced interest opening and admitting new members. This rule of construction is required by the intent normally to be inferred from a limitation of the type described.

illustration 3 to this section is indistinguishable from this case;

3. A, owning Blackacre in fee simple absolute, effectively devises Blackacre ‘to B for life, remainder to the children of C and their heirs.’ C has a child D. A dies. B renounces the provision made for him by A’s will. More than one year later and prior to B’s death C has a child E. D has an estate in fee simple absolute in Blackacre.

A clear majority of the cases accordingly hold that a remainder to a class, as here, of “children,” “grandchildren,” or the like, is both accelerated and closed upon the termination of the preceding life estate. Tomb v. Bardo, 153 Kan. 766, 114 P.2d 320 (1941); Allen v. Hannum, 15 Kan. 470 (1875); Davis v. Hilliard, 129 Md. 348, 99 A. 420 (1916); Sherman v. Baker, 20 R.I. 446, 40 A. 11 (1898); Re Davies, [1957] 4 All.E.R. 52; but cf., Trenton Banking Co. v. Hawley, 7 N.J.Super. 301, 70 A.2d 896 (1950); contra, Neill v. Bach, 231 N.C. 391, 57 S.E.2d 385 (1950); Yeaton v. Roberts, 28 N.H. 459 (1854). This rule controls our decision here.

It is true, as in every instance in which the acceleration doctrine is arguably applicable, see, Murphy v. Murphy, supra; In re Estate of Rentz, 152 So.2d 480 (Fla.3d DCA 1963), cert. denied, 156 So.2d 859 (Fla.1963), that the ultimate issue is the settlor’s wishes and that the acceleration-closed-class result will not obtain if the terms of the operative instrument manifest a contrary intent. Restatement of Property, supra, § 231 at pp. 970-71; 2A R. Powell, supra, § 310[2]. We do not agree, however, with the appellants’ contention that such an intent appears from the statement defining the children who were to receive the principal as “including children born after my death.” In essence, this expression adds nothing to a general description of “children,” which itself necessarily includes those born after the death of the conveyer. (Indeed, by definition, every case which involves an open class is concerned only with the rights of the afterborn.) But as we have seen, the rule is that a provision that these afterborn take at the natural end of a life estate, does not affect acceleration and closing when the estate is terminated by means other than actual death. Surely, the fact that Miss Levis made that intent clear cannot serve to evince a contrary desire concerning the quite different question of whether acceleration should result. That something a great deal more is required is shown by comparing this case to those in which such a determinative manifestation of an intent to bar acceleration has been found. Compare, e.g., Askey v. Askey, 111 Neb. 406, 196 N.W. 891 (1923) (will provided for termination of wife’s life estate if she remarried, but for no distribution until her natural death); Ohio National Bank of Columbus v. Adair, supra (comprehensive scheme to delay vesting so as to keep property within family for as long as possible); Restatement of Property, supra, §§ 232, 233; 2A R. Powell, supra, § 310[2], and cases collected. The words “including children born after my death” are not at all comparable and may not be given any such effect.

In considering the “intent” issue generally, it must be remembered that, by its very nature, every case in which the possibility of acceleration arises involves a threshold distortion of the settlor’s desires. See Restatement of Property, supra, § 231, p. 962. His wishes as to the use of his property have been frustrated by an unforeseen and unprovided-for event, and the issue then becomes what he would have intended to happen when what he intended to happen didn’t happen, and what he didn’t intend to happen, happened. As has already been intimated, the question in this case is not, therefore, whether Miss Levis wanted Dr. Mackey’s afterborn children to share if he and his wife had received the income until they died — the trust clearly says that she did. It is rather whether, after that interest has been disclaimed, the settlor would have wanted the principal to be immediately distributed to the living children or held in a kind of equitable limbo, see note 4, supra, awaiting Dr. Mackey’s natural death and thus the termination of the possibility — which is only speculative in any case— of his having other children. On this point, we must conclude from a consideration of the entire trust instrument that Miss Levis sought to grant her nephew and niece income during their lives simply as a benefit for them, rather than as a means of postponing the distribution of the corpus to the ultimate objects of her bounty, her grandnephews and grandnieces. Because, for their own reasons — probably relating to post-mortem planning — which are beyond our ken, the Mackeys do not want that benefit, there is no reason for, or, to put it more accurately, Miss Levis would have no reason to want any subsequent delay in the distribution and receipt of the principal. See Union National Bank of Charlotte v. Easterby, 236 N.C. 599, 73 S.E.2d 541 (1952), and cases cited. The implementation of this justifiably presumed intent is the basis of and is reflected in the acceleration doctrine itself, the authorities already cited which pertain to this particular legal situation, and the judgment below. It is therefore

Affirmed.

      . The clause in question had similar provisions for each of Miss Levis’ three nephews. In its entirety, it reads as follows:
      B. Trustees shall divide the remaining two (2) of the aforesaid five equal parts into three (3) shares, and shall keep same invested and held in trust for the benefit of the following named three (3) income beneficiaries — husband and wife where both are named to be considered one — , for the duration of their respective natural lives, to wit, for the benefit of respectively: (a) my nephew Wilson C. Levis, one (1) one-third (V3) share; (b) my nephew Bart L. Mackey and his wife, Eugenia L. Mackey, together, one (1) one-third (V3) share; and (c) my nephew David L. Mackey and his wife, Shirley R. Mackey, together, one (1) one-third (V3) share; each of the aforesaid income beneficiaries to be referred to hereinafter as the beneficiary, to wit: with respect to the particular trust for his/their benefit; each of the aforesaid three one-third shares to be administered by trustees as a separate trust, but investments of the several trusts hereunder, to the extent such is practicable, preferably to be combined for the three trusts. Trustees shall, as to each of said trusts: (a) pay the net income, from the date of my death, to the beneficiary, in convenient, not less frequent than quarterly, installments, the first such installment to be paid as soon as will appear to be practicable; (b) upon the death of the beneficiary — where applicable, upon the death of the survivor of husband and wife — distribute the assets of the particular trust, absolutely, free and clear of any and all trusts, to the children of the deceased nephew concerned, including children bom after my death, with a predeceased child’s issue taking by representation. the portion of such predeceased child, or, in case such nephew dies without issue, in equal parts, to the other ones of my aforesaid three nephews, or, if applicable, their respective children or further issue, per stirpes, in each instance, in case of death issue to take by representation, the terms ‘children’ or ‘issue’ as used herein to be construed as meaning ‘lineal descendents of the blood’, adopted children, if any, being expressly excluded, throughout. No income or principal of, or any other interest in, any trust established hereunder shall be alienable by its beneficiary, remaindermen included, and such income, principal or other interest shall not be subject to being taken by the beneficiary’s creditors through any process, whatsoever.

      . It is clear that the same rules apply whether the conveyance is of realty or personalty and whether it occurs by deed, will, inter vivos transfer, or, as here, the creation of a trust. L. Simes & A. Smith, The Law of Future Interests §§ 355, 801 (2d ed. 1956).

      . Lowrimore v. First Savings & Trust Co. of Tampa, 102 Fla. 740, 140 So. 891 (1931) accelerates a vested remainder in a class of “next of kin” and fixes the members of the class as of the date of the renunciation of the life estate by the widow’s election of dower. To that extent, it is like our case. It is unlike it, however, in the fact that the class was apparently subject only to decrease by death, and not, since the parents of the living “next of kin” had themselves all died, to “open” by birth of additional children, as here. We hold that the same rule nonetheless applies.

      . It is important to point out that the cases which either, like Yeaton and Neill, apply a different rule of law or, like Askey v. Askey, 111 Neb. 406, 196 N.W. 891 (1923), find a contrary intention of the conveyer, nevertheless do not ordinarily deny acceleration altogether. Instead, they hold that the remainder is accelerated, but that the class remains open during the term of the preceding estate. See Restatement of Property § 231, Comment i, supra; L. Simes and A. Smith, supra, p. 288. Thus, in this case, the four Mackey children’s interest in the corpus would be subject to progressive diminishment if their father should have other children.
      We confess that one of the reasons we adopt the acceleration-class-closed rule is the utter impracticability of this alternative. It seems clear that the idea of an acceleration subject to a subsequent partial divestiture is an impossible contradiction in terms. While it may be possible for the existing remaindermen to enter into possession subject to a limitation of record in the case of real estate, see Neill v. Bach, supra, we are hard put indeed to conceive of a way in which both interests may be simultaneously assured where, as here, only personalty is involved. (The only such instance seems to be the 1854 case of Yeaton v. Roberts, supra.) If each of the four young Mackeys immediately receives the right to, say, 100 shares of stock, it is entirely unclear as to how an after-born child may secure his interest in them. Is he to maintain an action at law against his four older siblings? Is a subsequent child to sue the preceding five? If the shares have been sold, the proceeds dissipated and an older child is judgment proof, the fact that the class remains “open” would be meaningless to the newly-born Mackey who entered it. If, on the other hand, these rights are protected by sequestering or continuing the trust as to all or part of the assets (the required proportion of which would be entirely speculative, since there is no way of knowing how many more children Dr. Mackey may have), there would be no real acceleration of the right to the principal at all. In any event, this approach would engender a welter of uncertainty which, as far as possible, the law of property should discourage. The rule favoring early vesting of estates is essentially based on this consideration. See Krissoff v. First National Bank of Tampa, 159 Fla. 522, 32 So.2d 315 (1947). Most significant of all, it may be assumed that Miss Levis, whose intentions are paramount, see Rice v. Greenberg, 406 So.2d 469 (Fla. 3d DCA 1981), would not have desired that any such confusion should be a result of her generosity.
      In any case, the present appellants do not themselves seek such relief. Their position is apparently that there should be no acceleration, that the living children should receive the income during their parents’ lifetime, and that disbursement of the corpus should await the father’s natural death. This view has been adopted in but a single case, Cool v. Cool, 54 Ind. 225 (1876), and is accurately said by Simes and Smith to be the “construction ... least likely to be followed,” § 799, supra, at p. 288. We have no difficulty in rejecting that contention as well.

      . Since there were no children born in the interim, we need not decide whether acceleration is deemed to have occurred and the class closed as of the date of Miss Levis’ death, as is usually the case, 2A R. Powell, supra, § 309[3], or when the disclaimers were filed, as indicated by Lowrimore v. First Savings & Trust Co. of Tampa, supra. We do note, however, that this language may be deemed to have indicated an intent in favor of the latter rule so that any children bom after her death but before acceleration would be included in the class. To that extent, and indulging the usually unmerited presumption that every word in a legal document must be given some legal effect, the phrase would have served a useful purpose without entirely defeating acceleration.
      In fact, however, the phrase was probably no more than legal boilerplate through which the draftsman sought to avoid a possible implication, which would not have arisen anyway, that the “children” were limited to those born before the settlor died. We are very loath to ascribe drastic legal consequences to an insertion which likely owes its existence merely to the scrivener’s maxim that one word should not be employed when ten will do as well.

      . Even a description of the remaindermen as those who are “then living” or who “survive” the life tenant — an a fortiori situation to this one — may not be sufficient to express a conveyer’s intent that acceleration should be precluded and that distribution must await the natural death of the tenant. 2A R. Powell, supra, § 310[2][b], cases collected and text at note 12.

      . Since we base our decision entirely on common law principles, we specifically do not consider whether it might also be required by Sec. 689.21, Fla.Stat. (1979), which deals with disclaimers of interests under inter vivos trusts. See Sec. 732.801, Fla.Stat. (1979) (equivalent statute as to wills). We point out, but need not resolve, the conflicting indications which stem from the facts (a) that, as written, Sec. 689.-21(3) deals only with the distribution of “the interest disclaimed” — here, the life interest— rather than the effect of the disclaimer upon the remainder; and (b) that although it generally tracks the Uniform Disclaimer of Transfers Under Nontestamentary Instruments Act, the Florida law does not contain the provision in subsection 3 of the Uniform Act which would achieve the result we adopt today. See Commissioners’ Comment to identical provision of Uniform Disclaimer of Transfers by Will, Intestacy or Appointment Act, 8 U.L.A. at Supp. 1981, p. 29.

      . We would be remiss if we did not express our appreciation to counsel for all sides for their uniformly excellent oral and written presentations.


author: PER CURIAM.

text:
    The JOCKEY CLUB, INC., a Florida corporation, Appellant, v. Mary L. STERN, Appellee.
    No. 80-2344.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 1982.
    Hogg, Allen, Ryce, Norton & Blue and Lewis E. Shelley, Coral Gables, for appellant.
    Greenfield & DuVal and Leo Greenfield, North Miami, for appellee.
    Before BARKDULL, HENDRY and FERGUSON, JJ.
   PER CURIAM.

Appellant takes this appeal from an adverse final judgment entered after a non-jury trial. The judgment awarded damages in the amount of $18,565.07, and pre-judgment interest, to appellee Mary L. Stern for commissions earned on sales of advertisements for “The Winner’s Circle” magazine operated by appellant.

We have carefully considered all of the points raised on appeal in light of the applicable principle that a judgment of the trial court reaches us clothed with a presumption of correctness. Furthermore, it is within the trial judge’s province, when acting as trier of both fact and law, to determine the weight of the evidence, evaluate conflicting evidence, and determine the credibility of the witnesses, and such determinations may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence, or to constitute an abuse of discretion. Bali, Inc. v. Sherwood’s Commercial Brokers of Daytona Beach, Inc., 326 So.2d 21 (Fla. 1st DCA 1975); Jeffreys v. Simpson, 222 So.2d 224 (Fla. 1st DCA 1969); Federated Department Stores, Inc. v. Planes, 305 So.2d 248 (Fla.3d DCA 1974).

The record reveals that while there was conflicting testimony, there was competent and substantial evidence to support the final judgment entered by the trial court. This court will not substitute its opinion for that of the trial court. Accordingly, the judgment appealed is affirmed.

Affirmed.


author: PER CURIAM. BASKIN, Judge

text:
    V. B. L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2355.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 1982.
    Bennett H. Brummer, Public Defender and Andrew M. Kassier, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON, and JORGENSON, JJ.
   PER CURIAM.

Affirmed.

BASKIN, Judge

(dissenting).

The fact that a firearm was found under the driver’s seat of an automobile driven by defendant V.B.L. is insufficient as a predicate for an adjudication of delinquency based upon carrying a concealed firearm. Defendant denied knowledge of the firearm’s presence in the car he stated was owned by his father and in which another passenger rode. Any inference from the presence of spent cartridges that defendant knew the gun was in the car was challenged by his denial at the time of his arrest and presented a question of fact. Wilson v. State, 344 So.2d 1315 (Fla. 2d DCA 1977). The state was confronted with the burden of excluding every reasonable hypothesis of innocence.

The state failed to prove that defendant knew of the gun’s presence and that he maintained control over it, elements necessary to establish constructive possession, Coley v. State, 393 So.2d 60 (Fla. 3d DCA 1981); Clark v. State, 359 So.2d 458 (Fla. 3d DCA 1978), cert. denied, 366 So.2d 880 (Fla.1979); Joiner v. State, 339 So.2d 296 (Fla. 1st DCA 1976), Russ v. State, 279 So.2d 92 (Fla. 3d DCA 1973), and to overcome its burden of proof that no reasonable hypothesis of innocence remained.

For these reasons, I would reverse defendant’s conviction.


text:
    W. G. B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-89.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 1982.

      Bennett H. Brummer, Public Defender and Andrew M. Kassier, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The state having confessed error, the order delegating judicial authority to the juvenile’s counselor to determine the amount of restitution is reversed with directions to afford the juvenile an evidentiary hearing as to the amount of restitution prior to any adjudication by the court. E. Y. v. State, 390 So.2d 776 (Fla.3d DCA 1980) and cases cited therein. In all other respects, the adjudication of delinquency is affirmed.

Affirmed in part and reversed in part with directions.


author: JORGENSON, Judge.

text:
    Anita SEGURA, Appellant, v. Eulalia VALDEZ, Appellee.
    No. 81-235.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 1982.
    Robert M. Hustead, Florida Rural Legal Services, Homestead, for appellant.
    Fletcher & Langer and A. Lester Langer, Homestead, for appellee.
    Before NESBITT and JORGENSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   JORGENSON, Judge.

Anita Segura appeals from a final judgment awarding custody of her minor child to Eulalia Valdez, the child’s paternal grandmother.

The trial court, in its final judgment, found that the natural mother, Anita Segu-ra, abandoned the child in 1978, that the natural mother would be an unfit custodian and that the best interests of the child would be served by continuing her custody with the paternal grandmother. The record abundantly supports the findings.

In the face of the findings below, we will not substitute our judgment for that of the trial court. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Grant v. Corbitt, 95 So.2d 25 (Fla.1957); Cone v. Cone, 62 So.2d 907 (Fla.1953).

Affirmed.

      . The child’s natural father, Casmiro Valdez, Jr., is deceased. The parties were never married.

      . The trial court correctly retained jurisdiction and provided for reasonable visitation rights.


text:
    G. Edwin BRUCE III and Thayer Corporation, Appellants, v. AMERICAN DEVELOPMENT CORPORATION and Kenneth Mamula, Appellees.
    No. 81-257.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 1982.
    Leesfield & Blackburn, Daniels & Hicks and Patrice A. Talisman, Miami, for appellants.
    Lapidus & Stettin and Richard L. Lapi-dus, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

The plaintiff appeals the final order dismissing appellants’ amended complaint with prejudice.

The owner of an apartment building listed it with the plaintiff, a real estate broker, to procure a purchaser, ready, willing, and able to purchase the property. The broker contacted the defendant with regard to the listing. It is alleged that the corporation represented that its agent had the authority to act on behalf of the corporation and that the corporation was a ready, willing, and able purchaser;. When the sale was not consummated, the broker brought suit against the seller. After termination of that action on the pleadings, this action was brought against the prospective purchaser on the following theories: (1) fraud and deceit; (2) negligent misrepresentation in stating that the agent had authority to bind the corporation; and (3) tortious interference. We affirm the trial court’s dismissal of the amended complaint.

In the absence of an agreement to the contrary or written contract, the purchaser is not responsible for a brokerage commission. Tutko v. Banks, 167 So.2d 110 (Fla.3d DCA 1964).

A prospective purchaser of property is not liable to a broker for showing an interest in property and then failing to make the purchase. Because the purchaser was not obligated, there can be no fraud, misrepresentation, or interference with a contractual relationship.

An unfulfilled promise to perform something in the future is not actionable. Brod v. Jernigan, 188 So.2d 575 (Fla.2d DCA 1966). For a complaint to state a cause of action for misrepresentation, there must be a right to rely. Butts v. Dragstrem, 349 So.2d 1205 (Fla. 1st DCA 1977), cert. denied, 361 So.2d 831 (Fla.1978). Clearly, one is not justified in relying upon some action which the other party is not required to perform. There can be no interference with a contractual relationship where the action complained of is undertaken to safeguard or promote one’s financial or economic interest. Ethyl Corporation v. Balter, 386 So.2d 1220 (Fla.3d DCA 1980). The prospective purchasers, acting in their own best interest, had the right not to consummate the transaction.

Based on the foregoing, we affirm.


author: BASKIN, Judge.

text:
    Victor STRAMONDO, individually and d/b/a D & S Quik Mart, Appellant, v. Lawrence R. DION, individually and d/b/a Dion Oil Company, Angus M. Stephens, Jr., and Dion Restaurant Equipment and Supplies, Inc., a Florida corporation, Appellees.
    No. 81-505.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 1982.
    Grable & Dieguez and Helio De La Torre and Anthony Dieguez, Hialeah, for appellant.

      Bernard F. Siegel, Coral Gables, for ap-pellees.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Appellant Stramondo challenges a trial court order adjudging him guilty of contempt and sentencing him to five months and twenty-nine days incarceration in the Dade County Jail for conduct in violation of prior court orders.

The court found that appellant interfered with the duties of the court-appointed receiver who was responsible for the control of business assets which were the subject of a legal dispute between the parties. Despite a court order enjoining the parties from disposing of the assets, appellant sold them to Suzy Equipment and Supplies, Inc., a corporation owned by his father. The court conducted a hearing and then restrained appellant from removing the assets from Suzy’s warehouse. The court also ordered appellant to show cause why he should not be held in contempt. The Rule to Show Cause was delivered to appellant one day before the scheduled contempt hearing; nevertheless, the court denied appellant’s motion for continuance.

At the conclusion of the contempt hearing, the trial court found appellant in willful contempt for selling of restaurant assets to Suzy without obtaining court consent, for utilizing the proceeds to pay business debts without obtaining the co-signature required by court order, and for impeding the receiver’s efforts to secure the assets. In its Order of Commitment of Civil Contempt, the court stated:

It is therefore ordered that the Sheriff take VICTOR STRAMONDO in custody and that he be incarcerated in the Dade County Jail for a period of five (5) months and 29 days for the above acts of civil contempt and further that he may purge himself of civil contempt by the posting of a performance bond or cash in the amount of $50,000. The conditions of and/or disbursement of the bond or cash is that the bond shall be made payable to the Clerk of the Circuit Court, Dade County, Florida, and its return, payment or other disposition shall be pursuant to subsequent Court order. The defendant has evidenced a flagrant disregard for court orders and said performance bond is to insure past and future compliance with this Court’s orders and to insure that said defendant does not again interfere or impede the Receiver in the performance of his duties.

Although the court advised counsel at the commencement of the hearing that it was proceeding on a civil contempt, it is clear that the court’s sentence punished, but did not compel compliance with its orders. In Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977), the supreme court defined the differences between civil and criminal contempt and reiterated the correct procedures applicable to each form of contempt.

Our review of the proceedings conducted by the trial court has led us to conclude that the court conducted criminal contempt proceedings and imposed a criminal penalty and did not conduct a civil contempt proceeding as the court had indicated. The court afforded appellant neither adequate notice to enable him to prepare a defense, Florida Rule of Criminal Procedure 3.840(a)(1), nor the opportunity to be heard prior to the imposition of sentence, Florida Rule of Criminal Procedure 3.840(a)(7).

For these reasons, we reverse the Order of Commitment of Civil Contempt, without prejudice to the institution of criminal contempt proceedings after remand.

Reversed and remanded.

      . The bond set by the court did not afford a means of purging the contempt in the manner contemplated in a civil contempt proceeding.

      . Fla.R.Crim.P. 3.840(a)(1):
      (a) Indirect (Constructive) Criminal Contempt. A criminal contempt except as provided in the preceding subsection concerning direct contempts, shall be prosecuted in the following manner:
      (1) Order to Show Cause. The judge, of his own motion or upon affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring him to appear before the court to show cause why he should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant.

      . Fla.R.Crim.P. 3.840(a)(7):
      (7) The Sentence; Indirect Contempt. Pri- or to the pronouncement of sentence, the judge shall inform the defendant of the accusation and judgment against him and inquire as to whether he has any cause to show why sentence should not be pronounced. The defendant shall be afforded the opportunity to present evidence of mitigating circumstances. The sentence shall be pronounced in open court and in the presence of the defendant.


text:
    Frances B. GLENN, Appellant, v. Edward C. VINING, Jr., Appellee.
    No. 81-647.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 1982.
    Joe N. Unger, Miami, for appellant.
    Edward C. Vining, Jr., Miami, in pro. per.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Fla.Bar Code Prof.Resp., D.R. 2-106; Baruch v. Giblin, 122 Fla. 59, 164 So. 831 (1936); Rivers v. Phillips, 367 So.2d 251 (Fla.3d DCA 1979).