text:
    Carlos CERVANTES, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1178.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen. for appellee.

      Before HUBBART, C. J., DANIEL S. PEARSON, J., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

We find no error in the trial court’s denial of the motion to suppress below as, on this record, we cannot say that the arrest in this case was pretextual. State v. Holmes, 256 So.2d 32 (Fla. 2d DCA 1971), approved, 273 So.2d 753 (Fla.1972).

We also find no error in the trial court’s order placing the defendant on probation for two offenses, one of which was a necessarily included offense in the other. First, the probationary order was not a general sentence condemned by Dorfman v. State, 351 So.2d 954 (Fla.1977), because, as our Supreme Court has held, a probationary order is not a sentence, Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980), and can, therefore, be entered, as here, upon multiple convictions. We recognize that our holding here is in conflict with decisions rendered by two of our distinguished sister district courts of appeal, McCrae v. State, 400 So.2d 175 (Fla. 5th DCA 1981); Price v. State, 393 So.2d 69 (Fla. 5th DCA 1981); German v. State, 382 So.2d 146 (Fla. 4th DCA 1980); Pearson v. State, 371 So.2d 569 (Fla. 4th DCA 1979) and regret that we cannot follow these decisions because, in our view, they mistakenly assume that a probationary order is a sentence.

Second, the probationary order is not invalid under Section 775.021(4), Florida Statutes (1981), because the defendant, as stated above, was not sentenced at all in this case, Villery v. Florida Parole & Probation Commission, supra, which, by definition, makes the above statute inapplicable.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ramon Injimio GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1232.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Lance R. Stelzer, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY and DANIEL S. PEARSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed.


text:
    J. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1268.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Bennett H. Brummer, Public Defender, and Yolanda Morales, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HENDRY and DANIEL S. PEARSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Reversed on the authority of I. O. v. State, 412 So.2d 42 (Fla.3d DCA 1982).


text:
    VIAS DEL AUSTRO COMPANIA LIMITADA, Appellant, v. O. E. MIAMI CORP. and Overseas Equipment Co. Inc., Appellees.
    No. 81-1382.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellant.
    Frank M. Marks, Miami, Frank, Strelkow & Gay and Carl Schmitt, North Bay Village, for appellees.
    Before HENDRY and DANIEL S. PEARSON, JJ., and WOODROW M. MELVIN (Ret.), Associate Judge.
   PER CURIAM.

We reverse the order under review; vacate the default and judgment and order taxing costs entered against Vias Del Aus-tro Compañía Limitada, a foreign corporation existing under the laws of the Republic of Ecuador; and quash the post-judgment writ of garnishment issued to Citibank International, in which funds of said corporation were held on deposit, upon a holding that the record indisputably reflects, inter alia, that the corporation Vias Del Austro Compañía Limitada was not named as a defendant in the suit out of which judgment against it arose, was never served with process, was never notified of a trial after default was entered against it, and did not participate or acquiesce in the proceedings in any manner.

Reversed for the entry of appropriate orders consistent with this opinion.


author: JORGENSON, Judge.

text:
    The STATE of Florida, Appellant, v. William R. RUSSO, Appellee.
    No. 81-1996.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Eric William Hendon, Miami, for appel-lee.
    Before HUBBART, C. J., and BARK-DULL and JORGENSON, JJ.
   JORGENSON, Judge.

William Russo was charged by indictment with first degree murder and attempted robbery. Pursuant to a plea agreement, the defendant pled guilty to second degree murder and attempted robbery. The trial court sentenced the defendant to life imprisonment on the second degree murder count and a consecutive sentence of thirty years on the attempted robbery count. Judgment and sentence were entered on February 12, 1979. On August 26, 1981, Russo filed a motion to vacate the consecutive thirty-year sentence on the attempted robbery count. The trial court, through a successor judge, granted the motion, vacated the sentence and conviction, and dismissed the attempted robbery charge. At the hearing on the motion to vacate, Russo urged a single transaction theory which, he contended, under State v. Hegstrom, 401 So.2d 1343 (Fla.1981) and Brown v. State, 206 So.2d 377 (Fla.1968), required the trial court to vacate the sentence imposed with respect to the attempted robbery. That argument may have had merit following a trial. State v. Thompson, 413 So.2d 757 (Fla.1982). However, in this case, the sentence imposed was the result of a plea agreement which contemplated not only the reduced charges, but also the consecutive sentences.

Russo, prior to plea, was faced with a charge of murder in the first degree. If convicted, he would have received a minimum mandatory twenty-five years in the State penitentiary or a possible death sentence. We cannot know what factors convinced Mr. Russo to enter into the plea agreement with the State. At least one of them could have been penalties which could have been imposed, had he been convicted of murder in the first degree, as charged. Russo cannot now be heard to complain that he did not have the benefit of his bargain, thereby substantially reducing his sentencing exposure. The principles that we applied in Oliver v. State, 379 So.2d 143 (Fla.3d DCA 1980) are equally applicable here. See also State ex rel. Miller v. Swanson, 411 So.2d 875 (Fla.2d DCA 1981).

For the reasons previously expressed, the order vacating the attempted armed robbery conviction and sentence is reversed and this cause remanded with directions to reinstate Count II of the indictment and the conviction and sentence imposed thereon.

Reversed and remanded with directions.

      . The pertinent portion of the plea colloquy is as follows:
      THE COURT: Has your attorney explained to you as has been explained here, in open Court, that he, on your behalf, together with representatives of law enforcement agencies have entered into negotiations with regard to your case and have recommended to the Court that as to Count I of the Information, that you be sentenced to life in the State Prison and that 775.087 of the Florida Statutes is in effect, that is that you must serve a mandatory three years prior to being considered for parole; you understand that?
      THE DEFENDANT: Yes, ma’am.
      THE COURT: Do you understand that as to Count II of the Information, the negotiations are, and I will be following the recommendations and sentence you, as to Count II, to 30 years in the State Prison to run consecutive to Count I. Do you understand that?
      THE DEFENDANT: Yes, ma’am.


author: DANIEL S. PEARSON, Judge.

text:
    ALLIED FIDELITY INSURANCE COMPANY, Appellant, v. The STATE of Florida, for the Use and Benefit of Dade County, Appellee.
    Nos. 81-2052 and 81-2127 to 81-2129.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.

      Neil I. Maryanoff, Miami, for appellant.
    Robert A. Ginsburg, County Atty. and James A. Jurkowski, Asst. County Atty., for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON, and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

The primary issue in these consolidated appeals is whether a court may enter a judgment against a bail bond surety upon unpaid and undischarged forfeitures where written notices to the surety were not given within seventy-two hours of the forfeitures pursuant to Section 903.26(2), Florida Statutes (1979), which provides:

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

Allied Fidelity Insurance Company was the surety on bail bonds posted to insure the appearance of defendants in four criminal cases. In each case, after due notice to Allied of a required appearance by the defendant, see § 903.26(l)(b), Fla.Stat. (1979), the defendant failed to appear, and orders declaring the bonds forfeited were entered. Written notices advising Allied of the forfeitures were sent four to six days, or more than seventy-two hours, after forfeiture.

Allied contends that Section 903.-26(2) is mandatory, and the failure to strictly comply with its seventy-two hour requirement prevented judgment from being entered upon the forfeitures, and, therefore, in these cases, required the trial court to vacate the judgments entered. Allied’s simplistic view of the statute is that “shall” means shall, and the inquiry ends there. While it is true that the first rule of statutory construction is that words are to be given their normal meaning, Neal v. Bryant, 149 So.2d 529 (Fla.1962), it is equally an axiom of statutory construction that an interpretation of a statute which leads to an unreasonable or ridiculous conclusion or a result obviously not designed by the Legislature will not be adopted. St. Petersburg v. Siebold, 48 So.2d 291 (Fla.1959); Palm Springs General Hospital, Inc. of Hialeah v. State Farm Mutual Automobile Insurance Co., 218 So.2d 793 (Fla. 3d DCA 1969). Whether “shall” is mandatory or discretionary will depend, then, upon the context in which it is used and the legislative intent expressed in the statute. S. R. v. State, 346 So.2d 1018 (Fla.1977). Thus, for example, where “shall” refers to some required action preceding a possible deprivation of a substantive right, S. R. v. State, supra; Neal v. Bryant, supra; Gilliam v. Saunders, 200 So.2d 588 (Fla. 1st DCA 1967), or the imposition of a legislatively-intended penalty, White v. Means, 280 So.2d 20 (Fla. 1st DCA 1973), or action to be taken for the public benefit, Gillespie v. County of Bay, 112 Fla. 687, 151 So. 10 (1933), it is held to be mandatory. And, by the same reasoning, the permissive word “may” will be deemed to be obligatory “[w]here a statute directs the doing of a thing for the sake of justice....” Mitchell v. Duncan, 7 Fla. 13 (1857). But where no rights are at stake, Reid v. Southern Development Co., 52 Fla. 595, 42 So. 206 (1906), and only a non-essential mode of proceeding is prescribed, Fraser v. Willey, 2 Fla. 116 (1848), the word “shall” is said to be advisory or directory only.

Turning to the case at hand, a reading of the entirety of Chapter 903 relating to bail convinces us that the provision for notice to the surety in Section 903.26(2) is intended to accomplish the orderly and prompt conduct of the court’s business and is directory only. See Schneider v. Gustafson Industries, Inc., 139 So.2d 423 (Fla.1962); Reid v. Southern Development Co., supra. Under Section 903.26, the surety is provided with two separate and distinct notices: the first is a notice to produce the defendant at a time and place certain, see Section 903.26(l)(b), note 1, supra; the second and later notice is to formally advise the surety that it has failed in its duty to produce the defendant and that the bond is thereby forfeited, see § 903.26(2), supra. The first of these notices, as Section 903.-26(1) expressly states (“... bond shall not be forfeited unless”), is a condition precedent to forfeiture of the bond. The failure to give the surety adequate notice of its obligation to produce the defendant in court invalidates an order of estreature and forfeiture entered against the surety. Estate of Maltie, 404 So.2d 384 (Fla. 4th DCA 1981); Schaefer v. State, 369 So.2d 443 (Fla. 3d DCA 1979); Bailey v. State, 282 So.2d 32 (Fla. 1st DCA 1973); Ramsey v. State, 225 So.2d 182 (Fla. 2d DCA 1969). The second notice, however, advising the surety of the fait accompli of forfeiture, is, definitively, not a condition precedent to forfeiture. Thus, we agree that

“[I]t would be illogical to conclude that the bondsman and his surety company are automatically relieved of their obligation under the bond in every case simply because of the failure to give the statutory notice of a forfeiture which has already occurred.” Weaver v. State, 370 So.2d 1236, 1237 (Fla. 2d DCA 1979).

and conclude that a failure to comply with the seventy-two hour provision of Section 903.26(2) does not prevent the trial court from entering judgment on the forfeiture.

Having so concluded, we now address Allied’s argument that even if the failure to strictly comply with the post-forfeiture notice provision of Section 903.26(2) does not preclude the entry of a judgment, Allied is entitled to show — and did in fact show — that it was prejudiced when notice of the forfeiture was served upon it more than seventy-two hours after forfeiture. While there is some suggestion in Ryan v. State, 380 So.2d 539 (Fla. 5th DCA 1980), and Weaver v. State, supra, that a showing of prejudice arising from a lack of timely notice to the surety of forfeiture might prevent a judgment on the forfeiture, we seriously doubt that such a showing is possible. As the court in Ryan v. State correctly observed:

When a surety is given proper notice to produce a defendant, for whom it is legally responsible and for whom it has intervened in the case, that surety knows it is subject to forfeiture at the time of the failure of appearance. There is no logical reason for the requirement of additional written notice at all; the forfeiture occurs in open court and is a matter of public record.” 380 So.2d at 540 (emphasis in original).

Thus, the written notice of forfeiture at best advises a surety of that which it should be deemed to constructively know. In short, the written notice of forfeiture is a redundant courtesy extended to the surety, and it can hardly be said that the surety will be prejudiced by its absence.

However, because an argument could be made (although it is not here) that the surety has, through custom and practice, come to rely on the written notice of forfeiture from the court and blithely assumes that its principal, the defendant, has faithfully appeared in court pursuant to the earlier notice, we will, in this appeal, address the merits of Allied’s attempt to show prejudice.

Allied’s “showing” in each of the four cases consisted of two nearly identical affidavits, which asserted in pertinent part:

“7. In my experience, the effect of notification past the seventy-two (72) hour period is as follows: First, the fear of the defendant has increased as time has elapsed and is more intense due to two factors: the defendant has a greater fear that the penalty would be increased once he is brought before the authorities.
“8. Second, and most important, is the fact that when notice of a forfeiture is received by a surety at a time past the required seventy-two (72) hours, the defendant’s trail has become cold and the defendant has had a greater chance to extract himself from the jurisdiction and/or secrete himself.
“9. Finally, it is the duty of an executing agent to follow the order of the court and arrest the defendant upon timely notice of the defendant’s non-appearance. When notice is served upon surety in an untimely fashion, he cannot be made aware that the defendant has failed to appear for court, but more importantly, he does not have the authority to engage in the apprehension of that particular defendant until such notice is received.”

In our view, these assertions are little more than an argument that the seventy-two hour provision should be construed as mandatory since prejudice will result in all cases. As is obvious, no specific prejudice is alleged as to any particular defendant (e.g., that sometime within the seventy-two hour period the particular defendant could have been found and taken into custody). Next, it is totally inaccurate to say that “when notice is served upon surety in an untimely fashion, he cannot be made aware that the defendant has failed to appear for court,” since, although a surety may for its own convenience choose to wait for notice of forfeiture, the open court forfeiture, a matter of public record, can be learned the very moment it occurs when the defendant fails to appear. Moreover, the assertion that the defendant’s fear (and presumably the likelihood of the defendant fleeing) increases and his trail gets cold after seventy-two hours proves too much, since, if such is the case, we would think the surety would want immediate notice of a forfeiture and take steps to learn of it when it occurs and the trail is even hotter. Last, there is no support whatever for the affiants’ conclusion that the surety has “no authority to engage in the apprehension of [a] particular defendant until such notice is received.” The surety’s right to arrest the defendant after forfeiture runs from the moment the forfeiture is paid, which, as we have said, could be accomplished immediately after the open court declaration of forfeiture. We most certainly cannot conclude from this “showing” that the trial court abused its discretion in refusing to vacate the forfeiture judgments against Allied.

Affirmed.

      . Section 903.26(l)(b) provides that the bail bond surety be given seventy-two hours notice of the defendant’s scheduled appearance:
      “(1) A bail bond shall not be forfeited unless:

      “(b) The clerk of court gave the surety at least 72 hours notice, exclusive of Saturdays, Sundays and holidays, before the time of the required appearance of the defendant.”
      Allied makes no contention that it was not given adequate notice of the defendants’ required appearances.

      . Since we hold, infra, that late notice of forfeiture did not affect the trial court’s right to enter a judgment against Allied, we need not address the State’s argument that in two of the four cases the notices were given within the prescribed 72 hours, because under Florida Rule of Criminal Procedure 3.040 (which, according to the State, controls), intermediate Saturdays, Sundays and legal holidays are to be excluded from computation when the statutorily prescribed time for the doing of an act is less than seven days.

      . If the surety fails to pay the forfeiture within thirty days and a final judgment is entered, the surety will receive a notice of that action as well. See § 903.27, Fla.Stat. (1979).

      . It has been said that one purpose which the written notice of forfeiture serves is to allow the surety to make payment of the forfeited amount within thirty days of forfeiture, Weaver v. State, supra, and to thereby obtain statutory rights not available to sureties which do not timely pay the forfeited amount. Thus, a surety which pays the forfeited amount within thirty days as required by Section 903.26(2), Florida Statutes (1979), is granted one year from the date of forfeiture within which to seek a remission of the forfeited amount. See § 903.28(1), Fla.Stat. (1979); Resolute Insurance Co. v. State, 290 So.2d 114 (Fla. 1st DCA 1974), and during that period retains authority to arrest the defendant and return him to the custody of the court. § 903.29, Fla.Stat. (1979). A surety which has not paid the forfeiture within thirty days is not authorized to seek remission or arrest the defendant and is limited to filing a motion to vacate the final judgment within forty-five days of its entry. § 903.27, Fla.Stat. (1979). But, once again, the written notice of forfeiture serves no greater purpose than the open-court forfeiture, about which the surety constructively, if not actually, knows.


text:
    ALLIED FIDELITY INSURANCE COMPANY, Appellant, v. STATE of Florida, for the use and benefit of Dade County, Appellee.
    Nos. 81-2053, 81-2054.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Neil I. Maryanoff, Miami, for appellant.
    Robert A. Ginsburg, Dade County Atty. and James A. Jurkowski, Asst. County Atty., for appellees.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Allied Fidelity Insurance Company v. State, 415 So.2d 109 (Fla. 3d DCA 1982) (Case Nos. 81-2052, 81-2127, 81-2128 & 81-2129, opinion filed June 15, 1982).


text:
    The STATE of Florida, Appellant, v. Rufus Carl LOVE, Appellee.
    No. 82-331.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellee.

      Before HUBBART, C. J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

The appellee having confessed error in the trial court’s granting of his sworn motion to dismiss, and such error clearly appearing, the order of dismissal is reversed. The question of whether the defendant knew that he was uttering a forged check, thus violating Section 831.02, Florida Statutes (1981), is a question of fact which cannot be resolved by a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). See State v. Alford, 395 So.2d 201 (Fla. 4th DCA 1981). The same is true as to whether the defendant had the requisite intent to injure or defraud any person. See State v. Alexander, 406 So.2d 1192 (Fla. 4th DCA 1981).

Reversed and remanded.


author: FERGUSON, Judge.

text:
    ENGINEERED STORAGE SYSTEMS, INC., a California Corporation, Appellant, v. NATIONAL PARTITIONS & INTERIORS, INC., a Florida corporation, Appellee.
    No. 82-489.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Moraitis, Cofar & Karney, Nancy Little Hoffmann, and Cathy Jackson Burris, Fort Lauderdale, for appellant.
    Gelb & Spatz and Carl Spatz, Miami, for appellee.
    Before BASKIN, DANIEL S. PEARSON, and FERGUSON, JJ.
   FERGUSON, Judge.

In a contract action based upon a failure or refusal to pay money due, where there is no stipulation as to place of payment, the cause of action accrues where the default occurred which is necessarily the place where the creditor resides. Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So.2d 346 (1944); Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934); Osborn v. University Society, Inc., 378 So.2d 873 (Fla. 2d DCA (1979); Madax International Corporation v. Delcher Intercontinental Moving Services, Inc., 342 So.2d 1082 (Fla. 2d DCA 1977); Mendez v. George Hunt, Inc., 191 So.2d 480 (Fla. 4th DCA 1966).

Florida courts have jurisdiction over the parties and subject matter in a suit brought by a resident plaintiff against a nonresident defendant for failure of defendant to perform acts required by the contract to be performed in this state, provided only that the nonresident defendant has been properly served. Madax International Corporation v. Delcher Intercontinental Moving Services, Inc., supra; § 48.-193(1)(g), Fla.Stat. (1979).

Where jurisdiction over the party is satisfied pursuant to Section 48.193(l)(g), the court need not determine whether the defendant also operates, conducts, engages in, or carries on a business in the state pursuant to Section 48.193(l)(a), Florida Statute (1979). Wilks v. Swift and Company, 382 So.2d 1364 (Fla. 1st DCA 1980); Professional Patient Transportation, Inc. v. Fink, 365 So.2d 209 (Fla. 3d DCA 1978); Madax International Corporation v. Delcher Intercontinental Moving Services, Inc., supra; First National Bank of Kissimmee v. Dunham, 342 So.2d 1021 (Fla. 4th DCA 1977); Dublin Company v. Peninsular Supply Company, 309 So.2d 207 (Fla. 4th DCA 1975). See also Bank of Wessington v. Winters Government Securities Corp., 361 So.2d 757 (Fla. 4th DCA 1978) (jurisdiction could not be invoked under Section 48.-193(l)(g), Florida Statutes because no breach of contract in this state; act as required by the contract was to be performed in another state). The statute plainly states that by doing any one of the acts enumerated, a nonresident person submits to the jurisdiction of the courts of this state for a cause of action arising from the doing of one of those acts.

The order denying defendant’s motion to abate for lack of jurisdiction over the person is

Affirmed.

      . There is no challenge here to service of process.

      . 48.193. ACTS SUBJECTING PERSONS TO JURISDICTION OF COURTS OF STATE
      (1) any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person ... to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
      (g) Breaches a contract in this state by failing to perform acts required by the contract to be performed in this state.

      . Appellants call our attention to two cases from a sister district, Lakewood Pipe of Texas, Inc. v. Rubaii, 379 So.2d 475 (Fla. 2d DCA 1979) and Osborn v. University Society, Inc., 378 So.2d 873 (Fla. 2d DCA 1979), which suggest that if Section 48.193(l)(g), Florida Statutes is interpreted to subject a nonresident to jurisdiction of this state for a breach of contract in this state without a showing of other minimum contacts, the subsection might be unconstitutional, citing International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). We disagree. A reading of the statute to require the doing of more than one of the enumerated acts, even for the limited purpose of avoiding a perceived constitutional problem, would be strained.
      Federal courts have observed that Florida’s long-arm jurisdiction statutes, generally, satisfy constitutional requirements. See Mallard v. Aluminum Co. of Canada, Ltd., 634 F.2d 236 (5th Cir. 1981); Bloom v. A. H. Pond Co., Inc., 519 F.Supp. 1162 (S.D.Fla.1981); Kellan v. Holster, 518 F.Supp. 175 (M.D.Fla.1981). Federal court review of Section 48.193(l)(g), alone, as a sole basis for jurisdiction over a nonresident has been limited, but Poston v. American President Lines, Ltd., 452 F.Supp. 568 (S.D.Fla.1978), seems to agree with the Second District’s holding in Lakewood Pipe, supra and Osborn v. University Society, Inc. supra, that constitutional requirements are not met by relying solely on Section 48.193(l)(g), Florida Statutes.
      In Ford Motor Co. v. Atwood Vacuum Machine Co., 392 So.2d 1305 (Fla.1981), the Supreme Court upheld the constitutionality of subsection 48.193(l)(f) (doing of an act or an omission outside the state by a nonresident defendant which causes injury to a person within the state), with a specific holding that the International Shoe minimum contact test can be met even though there is no direct presence or activity of the defendant within the borders of Florida. But see strong dissent of Justice Sundberg with which Justice England concurs. Applying the rationale of Ford Motor Co., supra, subsection 48.193(l)(g) could likewise be found not offensive to traditional notions of due process and fair play. Accord, General Time Corp. v. Eye Encounter, Inc., 50 N.C.App. 467, 274 S.E.2d 391 (1981) (while mere act of entering into a contract with North Carolina resident does not constitute minimum contacts for exercise of jurisdiction over nonresident, a single contract to be performed in North Carolina is sufficient to subject nonresident corporation to suit).


text:
    FLORIDA DEPARTMENT OF TRANSPORTATION and State of Florida, Appellants, v. Raul LOPEZ, Appellee.
    No. 82-638.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellants.
    Stone, Sostchin & Gonzalez and R. A. Del Pino, Miami, for appellee.
    Before HUBBART, C. J., SCHWARTZ, J., and TILLMAN PEARSON (Ret.), Associate Judge.
   TILLMAN PEARSON, (Ret.) Associate Judge.

The Florida Department of Transportation and the State of Florida appeal an order denying their motion for a change of venue in a negligence action brought by appellee, Raul Lopez. The cause of action accrued prior to October 1, 1981. Section 768.28(1), Florida Statutes (1981) provides, subject to some limitation, that an action for negligence against an agency of the state may be brought where the cause of action accrued. It is apparent that the trial court applied this section without having its attention called to Section 768.28(14). The latter section limits the application of the prior section to a cause of action which accrues on or after October 1, 1981. Actions prior to that date are subject to the State’s venue privilege as set forth in Florida Public Service Commission v. Triple “A” Enterprises, Inc., 387 So.2d 940 (Fla.1980).

We have examined the record in the light of appellee’s argument and find no basis for an exception to the State’s venue privilege. The order appealed is reversed and the cause remanded with directions to grant the State’s motion for change of venue.

Reversed and remanded with directions.


text:
    Omar RODRIGUEZ, Petitioner, v. The STATE of Florida, Respondent.
    No. 82-1104.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Jose E. Ferrer and Sheridan Weissen-bom, Miami, for petitioner.
    Jim Smith, Atty. Gen., for respondent.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Petitioner, Omar Rodriguez, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    The STATE of Florida, Appellant, v. Michael Anthony BROWN, Appellee.
    No. 81-511.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender and Claire Tacher, Legal Intern, for appel-lee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   REVISED OPINION

PER CURIAM.

The trial court order suppressing the defendant’s statements made to the police is affirmed. There is sufficient evidence in this record from which the trial court could have concluded, as it did, see e.g., Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976), that (a) the subject statements were not freely and voluntarily given but were induced by an implied police promise of leniency, see e.g., Brady v. United States, 397 U.S. 742, 754, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970); Bram v. United States, 168 U.S. 532, 543, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897); Williams v. State, 188 So.2d 320, 327-29 (Fla.2d DCA 1966), vacated in part, on other grounds, 198 So.2d 21 (Fla.1967); and (b) the subject statements were obtained in violation of the defendant’s right to counsel guaranteed by the federal and Florida constitutions, see e.g. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), in that the defendant neither expressly nor voluntarily waived his right to counsel during the within police interrogation which was conducted in the absence of the defendant’s court-appointed counsel.

Affirmed.


text:
    ARLINGTON TOWERS CONDOMINIUM NORTH, INC., Appellant, v. ALLINGTON TOWERS NORTH, INC., Appellee.
    No. 81-272.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.

      Judith A. Bass and Sharon B. Jacobs of Simons, Schindler & Tripp, P. A., Miami, for appellant.
    Alvin Capp of Capp, Reinstein, Kopelow-itz & Atlas, P. A., Fort Lauderdale, for appellee.
   PER CURIAM.

The defendant below appeals from an order granting the plaintiff’s motion for partial summary judgment as to liability in a slander of title action.

Allington Towers Condominium North, Inc., a condominium association, upon advice of counsel filed a claim of lien against unsold condominium units for alleged building defects. Allington Towers North, Inc., the developer, then filed a complaint against the association seeking removal of the lien and damages for slander of title resulting from the allegedly improper claim of lien. The developer alleged that the association maliciously filed an improper claim of lien which disparaged its title to the unsold condominium units, thereby causing actual damage. The association, in its answer, asserted a good faith defense to the slander of title claim.

The trial court granted the developer’s motion for partial summary judgment as to the removal of the lien. This court then affirmed that order. Allington Towers Condominium North, Inc. v. Seidler, 344 So.2d 345 (Fla. 4th DCA 1977).

Subsequently, the developer filed a motion for partial summary judgment determining liability with respect to the slander of title claim. The trial court found that the association is liable to the developer for slander of title. Accordingly, the court granted the developer’s motion. This appeal followed.

The association asserts that summary judgment was improper due to issues of material fact as to the association’s malicious intent in filing the claim of lien. The developer, however, contends that actual malice is not an essential element of a cause of action for slander of title. The developer argues that liability exists where a party:

(a) communicates to a third person;
(b) a statement disparaging title;
(c) which statement is untrue; and
(d) causes actual damage.

Lehman v. Goldin, 160 Fla. 710, 36 So.2d 259 (1948); Continental Development Corp. of Florida v. Duval Title & Abstract Co., 356 So.2d 925 (Fla. 2d DCA 1978); Gates v. Utsey, 177 So.2d 486 (Fla. 1st DCA 1965). The developer contends that a showing of these four elements presents a prima facie case of slander of title whereby malice is presumed. See Gates v. Utsey, supra.

We hold that the association’s affirmative defense of good faith creates a factual dispute as to the malicious intent element of a cause of action for slander of title. See Crabtree v. Rogers, 370 So.2d 857 (Fla. 1st DCA 1979). We recognize that malice will be presumed if the disparagement of title to real property is false, causes damage, and is not privileged. Gates v. Utsey, supra. The presumption of malice, however, can be overcome by the showing of privilege. Gates v. Utsey, supra; Continental Development Corp. of Florida v. Duval Title & Abstract Co., supra. A showing of privilege rebuts the presumption of malice and the plaintiff must then prove actual malice in order to recover in a slander of title action. Gates v. Utsey, supra. The affirmative defense of good faith raises a privilege and creates a factual issue as to the existence of malice. W. Prosser, Law of Torts, § 128 (4th ed. 1971) presents a good discussion of privilege. This section states:

A rival claimant to the property disparaged, in his capacity as such, is recognized as privileged to assert a bona fide claim by any appropriate means of publication The privilege is uniformly held, however, to be a qualified one, and it is defeated if the defendant’s motive is shown to be solely a desire to do harm, or if it is found that he did not honestly believe his statements to be true, or that the publication of the statement was excessive. A few cases have gone further and have said that he must have reasonable grounds for believing his disparaging words to be the truth; but the better view, which is now more generally accepted, is that a genuine belief in their truth is sufficient, however unfounded or unreasonable it may be. The absence of probable cause for the belief may permit the jury to infer that it does not exist, but it is not necessarily conclusive; and the advice of counsel, while it is evidence in favor of good faith, is likewise not determinative in itself. When it appears that a privilege exists, the burden is upon the plaintiff to establish the existence of the “malice” which will defeat it. (Footnotes omitted.)

Accordingly, the pleadings in the present case create an issue of material fact as to the existence of malice which could defeat the qualified privilege of a rival claimant to the property. This factual dispute cannot be resolved on summary judgment. Crabtree v. Rogers, supra; Bruce v. Turnbull, 327 So.2d 250 (Fla. 4th DCA 1976). See also Annot., 129 A.L.R. 179 (1940); Annot., 30 A.L.R.2d 840 (1955).

We, therefore, reverse the partial summary judgment on the issue of liability.

GLICKSTEIN, HURLEY and DELL, JJ., concur.


author: HERSEY, Judge.

text:
    Richard E. SCHUMACHER, Appellant, v. Arthur O. WELLMAN, Jr., individually, and as Executor of the Estate of Nancy S. Wellman, Deceased, and Lost Tree Village Corporation, Appellees. LOST TREE VILLAGE CORPORATION, Appellant, v. Arthur O. WELLMAN, Jr., individually, and as Executor of the Estate of Nancy S. Wellman, Deceased, and Richard E. Schumacher, Appellees.
    Nos. 81-992, 81-1286.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.

      David K. Friedman and Robert Sader of Tworoger, Sader & Ferrell, P.A., Fort Lauderdale, for Lost Tree Village Corp.
    Slawson & Burman, North Palm Beach, Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for Richard E. Schumacher.
    D. Culver Smith, III, of Steel, Hector, Davis, Burns & Middleton, Palm Beach, for Arthur 0. Wellman, Jr.
   HERSEY, Judge.

The final judgment on appeal here awards a real estate broker’s commission from an earnest money deposit forfeited by a defaulting purchaser in the absence of a written agreement specifically requiring that result.

Pursuant to an oral listing agreement between Lost Tree, as broker, and Schu-macher, as seller, a purchase and sale agreement was negotiated and ultimately executed by seller and Wellman, the purchaser. Illness of the purchaser’s wife resulted in amendment of the agreement, to postpone the closing date, and there were subsequent amendments. Thereafter the purchaser’s wife died. Because of his wife’s death the purchaser decided not to consummate the transaction and therefore eventually instituted suit against the seller for recovery of the deposit on the grounds that the purpose of the purchase and sale contract had been frustrated by the death of his wife. The broker filed a cross-claim for the recovery of a brokerage commission. Attorneys’ fees and costs have also been placed in issue on appeal.

Under the terms of the oral listing agreement the broker was to receive a commission of 6% of the selling price. The listing was to continue for a reasonable time. There was no specific mention of the event of default. It was broker’s intention that a commission was earned by finding a purchaser ready, willing and able to purchase the property for $700,000 or at such lower price as might be acceptable to the seller. It was the seller’s intention that a commission would be earned only if the transaction closed.

Wellman, being ready, willing and able, executed a purchase and sale agreement constituting an offer of $600,000. After negotiations, this agreement was accepted by Schumacher and executed by him. The purchase and sale agreement made reference to the broker’s commission and contained an undertaking by the seller that, in the event of buyer’s default the broker would receive one-half of the forfeited earnest money deposit but not to exceed the full commission that would have been payable had the transaction closed. The form contract contained a signature line for the seller to assent to the terms of the commission agreement. That portion of the contract was not signed by Schumacher.

The purchase and sale agreement provided that the commission was payable at closing. It was Schumacher’s impression that by refusing to affirmatively assent to the commission-on-default provision that a commission would be payable only if a closing took place. This position was never communicated to the broker.

This appeal concerns only the broker’s commission, costs and attorneys’ fees. The purchaser has not taken an appeal.

Contrary to appellant’s contention, the trial court found and we conclude that there was clearly an agreement, albeit oral, to pay a brokerage commission. Ordinarily, a real estate broker earns his commission upon finding a purchaser ready, willing and able to pay a price which is acceptable to the seller. Hart v. Pierce, 98 Fla. 1087, 125 So. 243 (Fla.1929). Obviously a seller may, by specific contract entered into before the fact, employ a broker on the basis that a commission will be earned only if and when the transaction is closed. There was no such agreement between Schumacher and Lost Tree. Thus the general rule applies. Expert testimony established that the custom and usage in Palm Beach County entitles the broker, where the buyer defaults and forfeits his deposit, to one-half the deposit but not to exceed the full commission. The trial court so found and the record supports that finding.

In a case remarkably similar to the present one the supreme court directed the trial court to enter a judgment in favor of the broker for one-half the deposit. MacGregor v. Hosack, 58 So.2d 513 (Fla.1952). Accordingly, we affirm that aspect of the final judgment awarding the broker’s commission.

We also affirm the trial court’s refusal to grant attorneys’ fees to the broker against the buyer, the latter relying on Section 57.105, Florida Statutes (1979), as the basis for such an award. There were justiciable issues raised by the buyer resulting in a two day trial on the merits. This precludes an award of attorneys’ fees under the statute. See City of Deerfield Beach v. Oliver-Hoffman Corporation of Deerfield Beach, 396 So.2d 1187 (Fla. 4th DCA 1981). The litigation was not frivolous. Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980).

The request by the broker for attorneys’ fees against the seller is apparently based upon the premise that since contracts similar to the one litigated here customarily provide for attorneys’ fees, such a condition should be implied to exist and an award made on that assumption. We reject that hypothesis and affirm the final judgment in that respect as well.

Finally, the broker complains of the refusal of the trial court to award certain costs. There were no issues tried between the broker and the buyer. We affirm that aspect of the cost judgment but hold that various elements of cost as between the broker and the seller disallowed by the trial court were recoverable by the former against the latter.

Costs of depositions are taxable if they serve a useful purpose, even though not offered into evidence. Cohn v. Florida National Bank at Orlando, 223 So.2d 767 (Fla. 4th DCA 1969). Similarly, costs of copies of depositions may be taxable if the copies served a useful purpose. State Farm Mutual Automobile Insurance Co. v. Sampaio, 374 So.2d 617 (Fla. 4th DCA 1979). However, where witnesses are not called, the costs of their depositions are not taxable as the issue being served has not been tried. Cohn v. Florida National Bank, supra. In the instant case, without specifying the reasons, the trial court awarded broker the cost of three depositions but did not allow the costs of copies and original transcripts of other depositions.

The trial court also refused to tax costs for the court reporter’s per diem charge for transcribing the trial and the cost of transcribing certain portions of the trial for use in broker’s final argument memorandum. These costs are authorized by Section 57.071(2), Florida Statutes (1981), which provides that “[i]f costs are awarded to any party the following shall also be allowed: ... (2) The expense of the court reporter for per diem, transcribing proceedings and depositions, including opening statements and arguments by counsel.” Regardless of the apparently mandatory language of the statute, however, the requirement that costs be related to a useful and meaningful purpose is not altered. Wilkins v. SuperX Drugs of Florida, Inc., 232 So.2d 19 (Fla. 4th DCA 1970).

It is unclear whether the trial court considered the requests for costs in terms of the “useful purpose” guideline. Accordingly, the cost judgment as between the broker and the seller is reversed and remanded for a determination (as to each item including copies of depositions) whether it served a useful purpose.

The final judgment is affirmed; the order on amended motion to tax costs is reversed and remanded for reconsideration in view of the useful purpose test.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

DOWNEY, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.


author: WALDEN, Judge.

text:
    Dorian H. STANG, Appellant, v. Alvin WALLER and Paula Waller, his wife, and David W. Graham and Christina Graham, his wife, Appellees.
    No. 81-1406.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Willard C. Wheeler, Jr., Jupiter, for appellant.
    Jane Kreusler-Walsh, West Palm Beach, and Frank J. McKeown of McKeown & Gamot, P. A., Palm Beach, for appellees.
   WALDEN, Judge.

This appeal determines the constitutionality of § 741.24, Fla.Stat. (1981). This statute imposes strict vicarious liability to the extent of $2,500.00 upon the parents when their minor children maliciously or willfully destroy or steal property of another.

The trial court found that plaintiff (appellant) here had proved “a perfect case” against the defendant parents (appellees) for recovery under the statute with the sole impediment being the statute’s unconstitutionality. There being no Florida cases on the subject, the trial court recognized that there were many cases from other jurisdictions holding such statutes to be constitutional. The trial court then considered and reasoned as to its views as to the frailties of the legislation. Finally, the statute was declared to be unconstitutional citing Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 766 (1971); The dissent in Board of Education of Piscataway Township v. Caffiero, 413 A.2d 981 (New Jersey 1980), aff’d 431 A.2d 799 (1981); and Article in June 1972 Notre Dame Lawyer, p. 1321.

It appears that a majority of the states have similar statutes and that the weight of authority supports constitutionality. So far as we can determine only Georgia, at the time our judgment was entered, had found such a statute unconstitutional. Corley v. Lewless, supra. Since Corley the General Assembly of Georgia modified its statute so that its expressed intent was to aid in controlling juvenile delinquency and not to compensate victims for the conduct of children. Moreover a limit on liability was imposed. The Supreme Court of Georgia then, subsequent to the trial court decision here, found the statute to be constitutional in Haywood v. Ramick, 248 Ga. 841, 285 S.E.2d 697 (1982). It said,

Corley, supra, stands alone among a number of opinions dealing with the constitutionality of parental responsibility statutes in various jurisdictions. The other statutes have uniformly been upheld. See, Vanthournout v. Burge, 69 Ill.App.3d 193, 25 Ill.Dec. 685, 387 N.E.2d 341 (1979) and cases cited therein. Some courts have accepted the distinction this court found in our previous statute, Rudnay v. Corbett, 53 Ohio App.2d 311, 374 N.E.2d 171, and others have not. In re Sorrell, 20 Md.App. 179, 315 A.2d 110, 115 (1974). While we do not reaffirm Corley, we do hold that the legislature has met the objections to Corley in the new statute with which we now deal.
Setting aside the history of our statute and prior decisions for the moment, we will undertake to analyze Code Ann. 105-113 under the recognized due process approach. Substantive due process requires that the statute not be unreasonable, arbitrary or capricious, and that the means have a real and substantial relation to the object sought to be obtained. Nebbia v. New York, 291 U.S. 502, 525, 54 S.Ct. 505, 510-511, 78 L.Ed. 940 (1933). The law must rationally relate to a legitimate end of government. Nowak, et al., Constitutional Law, p. 410 (1978). No basis has been put forward for any higher scrutiny and we find none. We hold that this statute, intended to aid in reducing juvenile delinquency by imposing liability upon parents who control minors is neither unreasonable, arbitrary nor capricious. We further hold that the state has a legitimate interest in the subject (controlling juvenile delinquency), and that there is a rational relationship between the means used (imposing of liability upon parents of children who wilfully or maliciously damage property) and this object. Furthermore, the General Assembly has enacted legislation incorporating those distinguishing features pointed to in Corley, supra, and thereby overcame any objections which Corley found to exist in the former statute. The statute violates neither due process nor Corley.

The subject has been comprehensively treated on a number of occasions. Since we feel that the better view supports constitutionality, we reverse and remand upon the well reasoned authority, which we adopt, of Board of Education v. Caffiero, 86 N.J. 308, 431 A.2d 799 (1981); Kelly v. Williams, 346 S.W.2d 434 (Tex.Civ.App.1961); Hayward v. Ramick, supra. See also Mahaney v. Hunter Enterprises, Inc., 426 P.2d 442 (Wyo.1967); In re Sorrell, 20 Md.App. 179, 315 A.2d 110 (1975); Watson v. Gradzik, 34 Conn.Supp. 7, 373 A.2d 191 (1977); Nan-thournout v. Burge, 69 Ill.App.3d 193, 25 Ill.Dec. 685, 387 N.E.2d 341 (1979).

Reversed and remanded for further proceedings consistent herewith.

LETTS, C. J., and DOWNEY, J., concur.

      . 741.24 Civil action against parents; willful destruction or theft of property by minor. (1) Any municipal corporation, county, school district, or department of Florida; any person, partnership, corporation, or association; or any religious organization, whether incorporated or unincorporated, shall be entitled to recover damages in an appropriate action at law in an amount not to exceed $2,500, in a court of competent jurisdiction, from the parents of any minor under the age of 18 years, living with the parents, who shall maliciously or willfully destroy or steal property, real, personal, or mixed, belonging to such municipal corporation, county, school district, department of the state, person, partnership, corporation, association, or religious organization. (2) The recovery shall be limited to the actual damages in an amount not to exceed $2,500, in addition to taxable court costs.


text:
    John J. HREHA, Jr., Appellant, v. Mary F. HREHA, Appellee.
    No. 81-2006.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Jose M. Sosa, West Palm Beach, for appellant.
    Arnold F. Kurzinger, Boca Raton, for ap-pellee.
   PER CURIAM.

Affirmed on the authority of Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979).

HERSEY, GLICKSTEIN and DELL, JJ., concur.


text:
    In re The ESTATE OF Ella WALLEN, Deceased.
    No. 81-2067.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    James A. Catania of James A. Catania, P. A., Hollywood, for appellant-Rodney W. Robinson.
    Michael Kane Cummings of the Law Office of Wintter & Cummings, Hollywood, for appellee-John Kiernan.
   PER CURIAM.

AFFIRMED. See In Re Estate of Carpenter, 253 So.2d 697 (Fla.1971), appeal after remand, 289 So.2d 410 (Fla. 4th DCA 1974).

HERSEY, GLICKSTEIN and DELL, JJ., concur.


author: DOWNEY, Judge.

text:
    LAKE WORTH UTILITIES AUTHORITY, a Department of the City of Lake Worth, Appellant, v. HAVERHILL GARDENS, LTD., Palm Beach County, Intercounty Construction Corp., etc., et al., Appellees.
    No. 81-2121.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Rehearing Denied July 28, 1982.

      Frank A. Kreidler, Lake Worth, for appellant.
    Robert G. Merkel of Adams, Coogler, Watson & Merkel, P. A., West Palm Beach, for appellees.
    Gary M. Brandenburg, Asst. County Atty., West Palm Beach, for appellee Palm Beach County.
   DOWNEY, Judge.

Appellee, Haverhill Gardens, Ltd., filed a multi-count complaint against appellants, Lake Worth Utilities Authority (hereafter LWUA) and Palm Beach County, in which, among other forms of relief, Haverhill sought an injunction against LWUA to stop it from transmitting sewage in its then current condition to Palm Beach Lift Station No. 241. The litigation arose as a result of the operation of the LWUA sewage collection system, which collects sewage from residents of the City of Lake Worth and contract customers and pumps it to the Palm Beach County System. The controversy stems from Haverhill’s contention that LWUA is not properly treating its sewage prior to interconnecting with the county system at Station 241, as a result of which noxious odors emanated from the station creating a nuisance.

During the course of a nonjury trial the parties entered into a stipulation in which in pertinent part LWUA agreed

to deliver effluent to the point of interconnect so as to have a five (5) day biochemical oxygen demand not in excess of 500 parts per million, by weight on a 24 hour composite basis, or for any sample period having a five day biochemical oxygen demand not in excess of five times the average influent value for the affected sewerage treatment plant during the previous calendar year; maximum of five parts per million sulfide, sulfur dioxide, or nitrous oxide and a minimum of .5 parts per million dissolved oxygen.

The stipulation provided that an independent testing organization (Geotec Inc.) would conduct tests several times each week and the results would be furnished to the parties. The trial court entered an order on January 30, 1980, approving the stipulation and directing the parties to comply with its terms and conditions.

Haverhill filed a motion to compel and for sanctions against LWUA for failure to comply with the stipulation. After a hearing thereon on April 22,1981, the trial court entered an order finding LWUA in violation of the stipulation and giving it 15 days to rectify the violations. The order further provided that LWUA should pay into the registry of the court a penalty of $100 per day while they were in violation of the April 22nd order.

Again, on July 22, 1981, Haverhill filed a motion to compel and for sanctions, including attorney’s fees. After a series of hearings on the motion the trial court entered the order appealed from, finding LWUA in violation of the stipulation and the court orders. It, therefore, ordered LWUA to pay into the registry of the court the sum of $700 within five days of the order and to make further payments for violation of the previous orders within five days after receiving the monthly test results from Geo-tec Inc.

LWUA poses two points on appeal, neither of which demonstrates reversible error.

The trial court found LWUA in contempt for violating the several court orders and levied a fine and attorney’s fees against it. However, though the order of contempt found LWUA in violation thereof, it did not make a finding that LWUA was able to comply and simply did not. This is important because the essence of contempt is violation of a court order that the con-temnor was able to comply with. State ex rel. Trezevant v. McLeod, 126 Fla. 229, 170 So. 735 (1936); Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Hamra v. Hamra, 350 So.2d 538 (Fla. 3rd DCA 1977); 11 Fla. Jur.2d, Contempt, § 62. As the Supreme Court of Florida states in Trezevant, supra:

Under the most respectable authority on contempt that we have been able to find a “process” contempt commitment for refusing to obey an order of court must be based on an affirmative finding that it is within the power of the defendant to obey the order, and such finding must be made to appear on the face of the order of commitment, else it is void. 170 So.2d at 735.

Despite the importance of the foregoing rule, appellant cannot rely on it for reversal because appellant failed to raise the question of the applicability of the rule in the trial court. Appellant’s failure precludes this court from entertaining its initial point for the first time on appeal. See cases cited at 3 Fla.Jur.2d, Appellate Review, § 92, pp. 130-134.

In its second point appellant questions the trial court’s award of attorney’s fees for appellee’s participation in the contempt proceedings. The award was correct since, if a party is found in contempt, it is proper for the court to compensate the injured party by assessing attorney’s fees for the contempt proceedings. See Lance v. Plummer, 353 F.2d 585 (5th Cir. 1965).

Accordingly, we affirm the order under review.

AFFIRMED.

HURLEY and WALDEN, JJ„ concur.


text:
    James F. STEPHENS, Appellant, v. Phyllis D. STEPHENS, Appellee.
    No. 81-2187.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Richard W. Smith of Johnson & Smith, Fort Lauderdale, for appellant.
    William H. Pruitt of Pruitt & Pruitt, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Appellant had the burden of demonstrating reversible error. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). Appellant having failed to carry that burden, we affirm the final judgment.

HERSEY, GLICKSTEIN and DELL, JJ., concur.


text:
    Levy WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-2270.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Richard L. Jorandby, Public Defender, Anthony Calvello, Asst. Public Defender, and Yvonne Hall, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. We hold that the trial court did not err in allowing an employee of Zayre’s Department Store to testify as to the contents of a price tag that was affixed to an item of merchandise on the day appellant was accused of stealing the merchandise. In our view this testimony did not constitute hearsay as contemplated by the provisions of the lrida Evidence Code, Section 90.802, Florida Statutes (1981).

ANSTEAD, HERSEY, and HURLEY, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Anthony CICENIA, Petitioner, v. MITEY MITE RACE TRACKS, INC., d/b/a Grand Prix Race-O-Rama, and Northeastern Fire Insurance Company of Pennsylvania, Respondents.
    No. 82-531.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.

      Gary A. Esler of Esler & Kirschbaum, P. A., Fort Lauderdale, for petitioner.
    Larry Klein, West Palm Beach, and Peter Miller of Pomeroy, Betts & Miller, Miami, for respondents.
   GLICKSTEIN, Judge.

Petitioner alleges he was accidentally thrown and struck by a go-cart he was operating at Grand Prix Race-O-Rama, an amusement go-cart raceway. He claims his back and penis were injured, leaving him wholly or partially impotent. During his deposition, petitioner said that in 1972 or 1973 he had been arrested for and charged with exposing himself and that, as a result, he underwent a psychiatric evaluation in New Jersey by Ignacy Stark.

During the deposition of the medical record custodian in New Jersey, Dr. Stark’s three page medical report was received and sealed as privileged. Respondents moved for determination of petitioner’s claim of a psychotherapist-patient privilege under section 90.503, Florida Statutes (1979). The trial court concluded petitioner had put into issue a claim of physical and mental impotency making the privilege inapplicable and ordered that respondents be allowed access to these records.

Petitioner, after becoming aware that respondents’ counsel had obtained a copy of Stark’s report, filed a petition with this court for a writ of certiorari to quash the trial court’s order. Petitioner led us to believe opposing counsel did not have a copy of the report, not only by specifically suggesting that respondents should apply to the trial court for an in-camera inspection of the report, but also by asserting that it had been sealed at the deposition without disclosing that the clerk later had unsealed it. Neither did petitioner mention that medical reports other than Stark’s existed, a fact of which we were informed later.

We required a response to the petition in an order based upon petitioner’s allegations. The response revealed that petitioner’s counsel had actual knowledge when he filed the petition that his opponent had a copy of Stark’s report. Petitioner filed the following reply:

It is accurate that counsel for Petitioner was aware of the fact that counsel for Defendants were in possession of a copy of the subject psychiatric records at the time the Petition for Writ of Common Law Certiorari was filed before this Court, but such Petition had been essentially completed by the time Petitioner’s counsel was advised of such fact and discussions were being undertaken by counsel for both parties to the end of preventing further dissemination of the subject report until a ruling could be obtained by this Court.

(emphasis added.) We find this explanation totally unsatisfactory particularly when joined by the failure in the petition to inform this court of the existence of additional medical reports.

Petitioner attempted to misdirect this court’s energies by not presenting matters as they actually existed, for even he acknowledged in his reply that in some respects his petition with regard to Stark’s report was moot. Concurrent with this acknowledgment he urges us to decide the applicability of his psychotherapist-patient privilege to whatever other medical reports may appear in this case. We find this to be a premature request involving a totally new and different matter which, if ever it arises, the trial court should have an opportunity to address.

In view of the foregoing, respondents filed a motion for attorney’s fees in this proceeding pursuant to section 57.105, Florida Statutes (1981). Recently we held that when a suit is “devoid of a justiciable issue of either law or fact ... the statute’s [section 57.105] provision is operative and requires an award of a reasonable attorney’s fee.” Galbraith v. Inglese, 402 So.2d 574 (Fla. 4th DCA 1981). Since we find the petitioner’s petition moot as to one issue and premature as to the other, we grant respondents’ motion, T.I.E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla. 3d DCA 1980), and order petitioner be assessed $750 dollars as attorney’s fees in favor of respondents.

PETITION FOR WRIT OF CERTIORA-RI DENIED.

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

      . Our order provided as follows:
      Respondents shall file their response to the petition filed herein within ten days in which they shall address, in addition to those matters which they consider to be relevant, the specific issue of whether an order should be entered directing the trial court to conduct an in-camera examination of the subject psychiatric report, together with copies of such testimony and medical reports upon which petitioner relies to establish any emotional distress to which his petition refers, prior to disclosure of the contents of the psychiatrist’s report to respondents.

        Petitioner shall file his reply ten days thereafter.


author: COWART, Judge.

text:
    Robert J. DOUGLAS, Connie Douglas and Margaret Douglas, Appellants, v. G.E.E.N. CORPORATION, et al., Appellees.
    No. 81-412.
    District Court of Appeal of Florida, Fifth District.
    June 16, 1982.

      John C. Englehardt, P. A., Orlando, for appellants.
    No appearance for appellees.
   COWART, Judge.

This case involves the Florida Unfair and Deceptive Trade Practices Act, §§ 501.201-213, Florida Statutes (1981), and the federal Truth in Lending Act, 15 U.S.C.A. §§ 1601-1665 (1982).

Appellants purchased a truck from appel-lees and then sued appellees in a three count complaint. Count I was for rescission of the sale, Count II was for actual consequential damages and attorney’s fees for an alleged “unfair and deceptive trade practice” based on the Florida Unfair and Deceptive Trade Practices Act, sections 501.-201-213 and 501.2105(1), Florida Statutes (1981), and Count III was for a $1,000 civil penalty for a failure to make disclosures in a consumer credit sale based on the federal Truth in Lending Act.

As a sanction for failure to make discovery, appellees’ pleadings were stricken and a default was entered against them. The trial court assessed damages against appellees for $3,071.65 on the Count II violation of the Unfair and Deceptive Trade Practices Act, but declined to enter judgment for the civil penalty for the federal Truth in Lending violation alleged in Count III.

If the remedies are not duplicitous, Ninth Liberty Loan Corp. v. Hardy, 53 Ill.App.3d 601, 11 Ill.Dec. 363, 367, 368 N.E.2d 971, 975 (1977), a plaintiff may recover under both a count alleging a violation of the Unfair and Deceptive Trade Practices Act and a count alleging a violation of the federal Truth in Lending Act. 15 U.S.C.A. § 1610(a); Dryden v. Lou Budke’s Arrow Finance Co., 630 F.2d 641 (8th Cir. 1980); Ballew v. Associates Financial Services Co. of Nebraska, Inc., 450 F.Supp. 253, 272 (D.Neb.1976); Public Finance Corp. v. Riddle, 83 Ill.App.3d 417, 38 Ill.Dec. 712, 716, 403 N.E.2d 1316, 1320 (1980).

If appellants had sought actual damages in both Count II (based on chapter 501, Florida Statutes) and Count III (based on the federal Truth in Lending Act), those counts would have been duplicitous and actual damages could only have been awarded under one count, even on a default. However, here, in Count III, appellants did not seek actual damages, costs or attorney’s fees, but only the $1,000 civil penalty. Therefore, on default the trial court should have entered judgment on both counts. Accordingly, that portion of the amended final judgment denying appellant’s claim for civil penalties under the federal Truth in Lending Act is reversed and the cause is remanded for entry of judgment for appellants on that count for $1,000. See Blair v. Royal AMC Jeep, Inc., 397 So.2d 744 (Fla. 5th DCA 1981).

Appellants, although entitled to claim their attorney’s fees incurred in prosecuting Count III as an element of damages under Count III, 15 U.S.C.A. § 1640(a)(3), did not pray for a fee award in Count III of the complaint. However, by motion filed with this court, they seek recovery for attorney’s fees incurred in the prosecution of this appeal. Since this opinion conclusively adjudicates that appellants’ “action to enforce the ... [statutory] liability” is to be “successful,” appellants’ motion for attorney’s fees is granted and the trial judge shall, upon remand, assess a reasonable fee against appellees for the services of appellants’ counsel rendered in prosecuting this appeal.

REVERSED and REMANDED.

ORFINGER and SHARP, JJ., concur.

      . Even though both the right to attorney’s fees incurred in trial and an appeal are based on the same statutory authority, the waiver of fees incurred during trial by failure to request them in the complaint does not affect entitlement to fees on appeal. Section 59.46(2), Florida Statutes (1981), directs that claims for attorneys’ fees on appeal are to be raised by motion filed in the appellate court.

      . 15 U.S.C.A. § 1640(a)(3) (“In the case of any successful action to enforce the foregoing liability ... a reasonable attorney’s fee as determined by the court” is to be assessed against the defendant as damages). Compare Williams v. United Credit Plan of Chalmette, Inc., 526 F.2d 713 (5th Cir. 1976) (appellant not entitled to fees incurred on appeal from order dismissing his complaint alleging Truth in Lending Act violations, because his action was not yet “successful”) with Thomas v. Myers-Dickson Furniture Co., 479 F.2d 740 (5th Cir. 1973) (plaintiff-appellee entitled to fees for successfully defending appeal from Truth in Lending award to him).


author: COBB, Judge. COWART, Judge,

text:
    Ronald Collier GASKINS, Appellant, v. STATE of Florida, Appellee.
    No. 81-701.
    District Court of Appeal of Florida, Fifth District.
    June 16, 1982.
    James B. Gibson, Public Defender, Michael S. Becker, Asst. Public Defender, and Leonard R. Ross, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty., Gen., Daytona Beach, for appellee.
   COBB, Judge.

The appellant, Ronald Collier Gas-kins, appeals from a judgment of conviction and life sentence for robbery with a deadly weapon. He first contends that he should have been discharged because of speedy trial violations, which contention is predicated on the proposition that placing a detainer upon a defendant already in custody for one offense precipitates the running of the speedy trial period for the second offense giving rise to the detainer. This is clearly contrary to Florida law. State v. Bassham, 352 So.2d 55 (Fla.1977); Cameron v. State, 376 So.2d 248 (Fla. 5th DCA 1979).

The main thrust of the appeal is the argument that a trial judge cannot retain jurisdiction over “the first third of the maximum sentence imposed” under section 947.-16(3), Florida Statutes (1979), when that sentence is life, because the period of retention cannot be calculated. However interesting this point may be, it was not preserved below for this appeal. The only objection to the sentence was that the trial court, at the time of imposition, was not aware of the defendant’s prior record, a point not raised by this appeal.

The question of the validity of retaining jurisdiction of the first third of a sentence was never presented to the trial court, either by way of objection at the time of sentence or by way of an appropriate post-trial motion pursuant to Florida Rule of Criminal Procedure 3.800. Objections to trial court sentences, as we previously have held, first should be raised before the trial court. Barlow v. State, 388 So.2d 349 (Fla. 5th DCA 1980); Jones v. State, 384 So.2d 956 (Fla. 5th DCA), review denied, 392 So.2d 1375 (Fla.1980); Smith v. State, 378 So.2d 313 (Fla. 5th DCA), approved, 394 So.2d 407 (Fla.1980).

Accordingly, the judgment below is

AFFIRMED.

ORFINGER J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

I would consider the merits of appellant’s point and hold that the statute providing for retention of jurisdiction over parole releases is applicable to all convictions of robbery without regard to whether the sentence imposed is for a specific term or for life and that we need not now decide the consequences of a retention of jurisdiction under the statute as to a life sentence. Therefore, I concur only in the result of the majority opinion.


text:
    Brian Russell HOOD, Appellant, v. STATE of Florida, Appellee.
    No. 81-832.
    District Court of Appeal of Florida, Fifth District.
    June 16, 1982.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

This is another case involving the speedy trial rule, Florida Rule of Criminal Procedure 3.191.

Arrested on April 3,1980, appellant failed to appear for trial on July 30, 1980. He was rearrested on August 15, 1980, and remained incarcerated continuously until his motion for discharge under the speedy trial rule was filed on March 20,1981. That motion was granted by one judge, but the State filed a motion for rehearing of the order of discharge and another judge heard and granted the State’s motion and vacated the order of discharge. Appellant pled nolo contendere reserving the right to seek this appellate review of the denial of his motion for discharge.

The former rule 3.191(e) is applicable. Under this version of the rule, unavailability only temporarily suspended the time period; a new speedy trial period began to run after the accused again became available for trial. Being in jail the whole time, appellant was obviously available for trial for over 180 days after he was arrested and before his motion for discharge. Accordingly, the order setting aside the order of discharge is hereby quashed and this cause is remanded for entry of an order of discharge.

ORDER QUASHED.

DAUKSCH, C. J., and SHARP, J„ concur.

      . A motion for rehearing after an order for discharge is not authorized by rule; nor, in this case, was it based on any mistake of fact or fraud on the court; nor did it involve any matter cognizable at common law as adequate to modify a judgment. See, e.g., State v. Burton, 314 So.2d 136 (Fla.1975); Lovett v. State, 29 Fla. 384, 11 So. 176 (1892); State v. Pierce, 370 So.2d 410 (Fla. 1st DCA 1979). In view of our disposition on the merits, we do not consider the authority of a trial court to rehear the matter of appellant’s speedy trial discharge.

      . A successor trial judge cannot review, modify or reverse on the merits and same facts the final orders of a predecessor except in special circumstances of mistake and fraud. See, e.g., Lawyers Coop. Pub. Co. v. Williams, 149 Fla. 390, 5 So.2d 871 (1942); City of Miami Beach v. Chadderton, 306 So.2d 558 (Fla. 3d DCA 1975), cause dismissed, 312 So.2d 757 (Fla.1975). This rule especially applies to a motion for rehearing not based on any change or misrepresentation of law or fact. See, e.g., Epperson v. Epperson, 101 So.2d 367 (Fla.1958); Groover v. Walker, 88 So.2d 312 (Fla.1956).

      . Florida Rule of Criminal Procedure 3.191(e) was amended effective January 1, 1981. In re Rules of Criminal Procedure, 389 So.2d 610 (Fla.1980). Under the new rule, unavailability waives speedy trial rule rights until they are reinvoked by the filing of a demand for speedy trial.

      . This court held in Harris v. State, 400 So.2d 819 (Fla. 5th DCA 1981), that the operative event that determined whether the former rule 3.191(e) or the amended rule 3.191(e) applied was the defendant’s failure to appear at arraignment. However, in Holmes v. Leffler, 411 So.2d 889 (Fla. 5th DCA 1982), this court held that the operative event that determined whether the former rule 3.191 or the amended rule 3.191 applied was the taking of the defendant into custody. Whether these cases are inconsistent or not does not need to be determined in this case, since the operative event under either Harris or Holmes occurred in 1980, prior to the effective date of the amended rule.


text:
    WEST AMERICAN INSURANCE COMPANY, Appellant, v. Tim J. WENGER; Dixie Insurance Company, a Florida corporation; and Angela M. Jackman, Appellees.
    No. 81-1049.
    District Court of Appeal of Florida, Fifth District.
    June 16, 1982.
    G. B. McVay Voght, of Pitts, Eubanks & Ross, P. A., Orlando, for appellant.
    Gary Doane, of Whitaker & Koepke, Chartered, Orlando, for appellees.
   PER CURIAM.

REVERSED on the authority of Traveler’s Insurance Company v. Furlan, 408 So.2d 767 (Fla. 5th DCA 1982).

DAUKSCH, C. J., and COBB and FRANK D. UPCHURCH, JJ., concur.


text:
    Quincy L. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1110.
    District Court of Appeal of Florida, Fifth District.
    June 16, 1982.
    James B. Gibson, Public Defender, and Leonard R. Ross, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

Appellant was charged in a two-count information with first-degree burglary (i.e., burglary with an assault), and attempted sexual battery. At trial the state presented a prima facie case that the appellant broke into the apartment of the female victim in the early morning hours of April 12, 1980. He then forced her to the bed, removed his and her clothes and attempted to rape her. The police were alerted to the scene and six police officers stationed themselves outside of the victim’s apartment. The appellant was ultimately arrested as he attempted to exit the apartment through a bathroom window.

In his defense, appellant testified that he had no recollection of the alleged offense at all, or of his arrest. He testified that he had consumed large quantities of beer, wine and gin in the afternoon, evening and early morning hours before the offense and that he had smoked a considerable amount of marijuana. In addition to his own testimony, three expert psychiatric witnesses also testified. Doctors George Bernard and Frank Carrera both testified they had examined the appellant and reviewed the police reports and that it was their opinion that appellant was sane at the time of the incident and had no recall of the events in question. They also testified they were unable to reach an opinion to a reasonable degree of medical certainty as to whether the appellant was or was not capable of forming the intent to commit the offenses charged. Additionally, Dr. Bernard testified that it was impossible to tell whether an individual had the intent to perform some act during an alcoholic blackout.

In contrast, Dr. Elizabeth McMahon, an expert called by the defense, testified that it was her opinion to a reasonable degree of psychological certainty that the appellant was sane at the time of the alleged offense, that he was competent to stand trial, that he had no recall of the events in question due to an alcoholic blackout, and that the appellant was incapable of forming an intent to commit the offenses charged at the time of the alleged offenses due to his condition of intoxication. It was her opinion that

he literally was not capable of forming the kind of intent that it would take to act in what we would call a goal-directed manner, in other words, to sit and plan an action, to evaluate the consequences of it, to carry it out and then be able to reflect upon it and judge his behavior in any way.

The defense’s motion for directed verdict of acquittal was denied. The defendant subsequently was found guilty as to both counts and has appealed the action of the trial court in denying his motion for judgment of acquittal and for new trial.

Florida law recognizes that a person can be so intoxicated at the time an offense is committed that he does not have the ability to formulate the required intent. In other words, voluntary intoxication is a defense to a crime that requires a specific intent. Both burglary and battery are specific intent crimes; therefore, voluntary intoxication is a viable defense to both charges.

Appellant contends that the trial court erred in failing to direct a verdict. However, where the issue of intoxication is raised, it normally is a question of fact for the jury. The defense of intoxication was first recognized in Florida in 1891 in Garner v. State, 28 Fla. 113, 9 So. 835 (1891). There, the Florida Supreme Court held that, in a trial for first-degree murder, voluntary intoxication was evidence to be considered by the jury in considering whether or not the defendant had the requisite intent at the time of the killing. Garner was followed in Jenkins v. State, 58 Fla. 62, 50 So. 582 (1909), and Ekman v. State, 120 Fla. 24, 161 So. 716 (1935), where both cases held the defense of intoxication was a question for the jury.

Although the Florida Supreme Court in Britts v. State, 158 Fla. 839, 30 So.2d 363 (Fla.1947) held that intoxication in that case had been established as a matter of law and therefore a jury verdict was reversed, this holding appears to be an aberration of the law. The Florida Supreme Court since has followed the case law preceding Britt holding that intoxication is a question of fact for the jury. In Colson v. State, 73 So.2d 862 (Fla.1954), the appellant was charged with “knowingly and willfully resisting ... the sheriff....” He defended the charge alleging he was too intoxicated at the time to form the requisite intent. In affirming the jury verdict, the Supreme Court noted:

He was no doubt “well soused” but it is an old saw that “some are keener drunk than others are sober.” Whether or not defendant had enough left to know what he was doing was a question for the jury.

73 So.2d at 862.

All of the other district courts of appeal have held that intoxication is a question of fact for the jury. Appellant argues that Doctor McMahon’s expert opinion that appellant was incapable of forming an intent at the time the alleged offenses were committed was uncontradicted and had to be believed by the jury. But the two other expert witnesses, Doctors Bernard and Carrera, both testified that they were unable to reach an opinion based on the same information at Dr. McMahon’s disposal. Dr. Bernard even testified that it was impossible to say. Additionally, the direct testimony of the victim and the eyewitness testimony of the police were sufficient to put appellant’s intent in issue. As an issue, it was a question of fact for the jury. The standard jury instruction in criminal cases, 2.11(c) on intoxication, was requested and given to the jury. Upon the evidence presented and the jury instruction given, the jury found beyond a reasonable doubt that the appellant possessed the required specific intent at the time he committed the offenses. Therefore, the trial court did not err in denying appellant’s motions for judgment of acquittal and new trial.

AFFIRMED.

COBB, SHARP and COWART, JJ., concur.

      . See, e.g., Colson v. State, 73 So.2d 862 (Fla.1954); Britts v. State, 158 Fla. 839, 30 So.2d 363 (1947); Garner v. State, 28 Fla. 113, 9 So. 835 (1891); Graham v. State, 406 So.2d 503 (Fla. 3d DCA 1981); Mellins v. State, 395 So.2d 1207 (Fla. 4th DCA 1981); Pressley v. State, 388 So.2d 1385 (Fla. 2d DCA 1980); Maudlin v. State, 382 So.2d 844 (Fla. 1st DCA 1980).

      . See, e.g., Pressley v. State, 388 So.2d 1385 (Fla. 2d DCA 1980) (intoxication is a defense to specific intent crime of burglary); Leon v. State, 186 So.2d 93 (Fla. 3d DCA 1966) (intoxication is a defense to specific intent crime of breaking and entering with intent to commit misdemeanor).

        .See, e.g., Mellins v. State (intoxication is a defense to specific intent crime of battery of a police officer); Russell v. State, 373 So.2d 97 (Fla. 2d DCA 1979) (intoxication is a defense to specific intent crime of battery).

      . See, e.g., Graham v. State, 406 So.2d 503 (Fla. 3d DCA 1981) (jury verdict reversed where trial court failed to instruct the jury on the intoxication defense); Mellins v. State, 395 So.2d 1207 (Fla. 4th DCA 1981) (where intent is an element of the crime and there is some evidence of intoxication, intoxication is a question of fact for the jury); Maudlin v. State, 382 So.2d 844 (Fla. 1st DCA 1980) (defense of intoxication is a question of fact for the jury); Fouts v. State, 374 So.2d 22 (Fla. 2d DCA 1979) (evidence of intoxication requires a jury be instructed on that defense).


text:
    Bruce HENRY and Eleanor Henry, his wife, Appellants, v. Charles T. ECKER and Anna Ecker, his wife, Appellees.
    No. 81-1245.
    District Court of Appeal of Florida, Fifth District.
    June 16, 1982.

      Louis Ossinsky, Jr., of Ossinsky, Krol & Hess, Daytona Beach, and Clark & Musso-line, Palatka, for appellants.
    William L. Townsend, Jr. and Albert W. Whitaker of Walton & Townsend, Palatka, for appellees.
   COWART, Judge.

This case involves specific performance of a contract for the sale and purchase of real property.

Appellees, as sellers, and appellants, as buyers, entered into a written contract for the sale and purchase of a parcel of land for $70,000, payable $2,000 as a deposit, $28,000 at closing and the balance of $40,000 to be secured by a purchase money mortgage. The contract provided that the transaction would be closed by July 2, 1980, but no provision made time of the essence. The contract made no provision for the buyers taking possession prior to closing, but the buyers took possession under the contract with permission of, or at least without protest from, the sellers. One lawyer undertook to represent both parties, but because he had been notified of a potential claim against the sellers for a real estate commission, the lawyer declined to accept and hold in escrow the buyers’ $28,000 and directed the buyers to deposit those funds with another law firm. On July 2,1980, the parties disputed, with the buyers claiming that the sellers had wrongfully removed an ornamental fireplace mantle contrary to the written agreement, which provided that the sellers had the right to retrieve the mantle, the title to which they retained, only after the buyers remodeled the fireplace. There was also some dispute as to whether one or two lawnmowers were included in the deal. The buyers wanted $2,000 of the purchase money held in escrow pending resolution of these matters, but the sellers would not agree and no closing occurred. Later, the sellers executed a deed and left it in escrow with the attorney and authorized him to close with a $2,000 reduction in the sale price.. Nevertheless, when the buyers and the attorney later met (probably July 18, 1980) and attempted to close, the buyers felt that it was the sellers’ fault that the transaction had not closed on July 2, 1980, and therefore that interest on the deferred portion of the purchase price should commence from the date of the delayed closing and, further, that the sellers should pay $100 in attorney’s fees that the other law firm had charged as a fee relating to the escrow of the buyers’ down payment money. Again, no closing occurred. Thereafter, the sellers demanded possession and filed an action for unlawful entry and unlawful detention (detainer). The buyers counterclaimed for specific performance. The trial court denied specific performance on the grounds that the buyers did not have clean hands because the transaction had not closed on July 2 as a result of the buyers’ objections and questions about the fireplace mantle and the lawnmowers and the transaction had not closed on the second attempt because of the buyers’ position with reference to the commencement date of mortgage payments, interest on the deferred portion of the purchase price and the $100 of attorney’s fees.

While the contract was poorly drawn on a poor form, all parties consider it adequate, legal and binding. Both parties, while contentious, basically acted in good faith to close their transaction, but they needed help that they did not have. Performance of the contract by execution of the necessary doc-umente at a closing should have occurred and it still can. The buyers have now been in possession of the property for over a year and a half and there is no way for this controversy to be concluded fairly to both parties except for a court of equity to direct specific performance of the contract with the necessary equitable adjustments.

First, the fact that the two efforts to close this transaction failed does not necessarily mean that either party breached the agreement or was guilty of unclean hands. Failure to close at any one time does not amount to unclean hands; that equitable doctrine was not intended as a penalty to deprive a party of the benefits of a contract merely because they are not agreeable at a closing. Closings of real estate transactions are fraught with potential for disagreements as to details and personality conflicts and emotionally induced positions are common. Equity, like a good real estate closing attorney, should assume that a basically fair and equitable agreement should be performed by the parties and should steadfastly press forward, patiently resolving differences and parrying all personality and other petty matters that threaten attainment of the goal of full good faith performance by all parties.

Time is not of the essence in contracts for the sale and purchase of real estate unless the contract so provides. See Chabot v. Winter Park Co., 34 Fla. 258, 15 So. 756 (1894); Southern Life Ins. and Trust Co. v. Cole, 4 Fla. 359 (1852); Fretwell v. Crisafulli, 185 So.2d 504 (Fla. 4th DCA 1966). When a contract for the sale and purchase of land does not make time of the essence as it relates to closing, a party can breach that contract only by refusing to perform after demand that a closing take place at a reasonable time and place. In this case, the buyers did not refuse to perform after a demand for performance by refusing to close at a given reasonable time and place. In Florida, ejectment proceedings will not lie against even a defaulting vendee who enters the property under an executory contract for purchase until such time as the vendor gives notice of rescission because of the default and allows the vendee a reasonable time to perform obligations under the contract. Wismer v. Alyea, 103 Fla. 1102, 138 So. 763 (1932); South Florida Farm Co. v. Hall, 84 Fla. 233, 93 So. 687 (1922).

A contract of purchase and sale, being preliminary to the sale and not the sale itself and also subject to rescission by agreement between the parties, is an execu-tory contract, the two promises of which are mutually dependent and conditional requiring concurrent performance. Since all land is considered unique, money damages to a contract purchaser of lands is an inadequate remedy at law. Therefore, specific performance of contracts for the sale and purchase of real property is generally granted as a matter of right where their terms are fair, certain and definite and they have been entered into without misunderstanding or misrepresentation.

The “clean hands” maxim and the equitable principle for which it stands signify that a litigant may be denied affirmative equitable relief by a court of equity on the ground that his conduct has been inequitable, unfair, dishonest, fraudulent or deceitful as to the controversy in issue. This maxim refers to the acceptability, cleanliness and decency of the claim put forth and describes equity’s practice of refusing an equitable remedy to enforce a claim that is itself inequitable, unconscionable or tainted by fraud or misrepresentation. Disputes between parties at real estate closings such as in this case do not constitute the kinds of acts or conduct within the basic rationale and purpose of this equitable maxim and the maxim should not be invoked to deny an equitable remedy to one who seeks the enforcement of the legal right to compel a party to a contract to do that which was in the contemplation of the parties as expressed in their contract. Equity ought to require doing that which should have been done. While there is some difference in purpose between the usual executory contract for the sale and purchase of land and the long term contract for deed discussed in Cain and Bultman, Inc. v. Miss Sam, Inc., 409 So.2d 114 (Fla. 5th DCA 1982), viewed as to the interests and legal rights of the vendee, there is little, if any, theoretical difference, especially insofar as the buyer under both types of agreements acquires an interest in the land which is the subject matter of the contract. Buyers under both forms of agreement are equally entitled to specific performance to have a court of equity require the seller to specifically perform the agreement and to convey the legal title to the purchaser as contemplated by the agreement. This legally enforceable contractual right to receive legal title to the land is sometimes called an equitable title. Such an equitable title means the right in equity to acquire the legal title by an action for specific performance. We recognize that, as a practical matter, the equitable title of such a purchaser who is not in actual possession of the land and whose contract rights are not a matter of public record giving constructive notice is ineffectual and unavailing as against a good faith purchaser from the record titleholder. Nevertheless, as between the parties, when no rights of a third party are involved, such equitable title and interest in the land should not be summarily terminated as forfeited, nor should it be adjudicated in a possessory action at law, but should be terminated only by an action in equity, in which action the purchaser, even one who has defaulted, is always judicially given one last fair equitable opportunity to redeem his right in equity to a conveyance of the legal title to the property by payment of all sums due and by himself “doing equity” as may be necessary. In fact, the foundation of the “clean hands” maxim is said to be the same as that of the equitable maxim “he who seeks equity must do equity.” A court of equity has such authority to effectuate this last maxim by specific performance conditioned upon the contract purchaser making the seller whole, that specific performance may be granted in many cases where it would otherwise be denied. In this particular case, equity can best be served by giving the buyer a court sponsored opportunity to pay all principal sums which the buyers should have paid the sellers to date had the original contract been closed on the original date set in the contract for closing (July 2, 1980), and to assume the deferred installment payments at the point presently due under the contract, as originally agreed, with appropriate contract interest thereon. Failing to so redeem, the buyers can be fairly left to face the legal damages which they would otherwise owe the sellers for their long actual possession of the property in question. Accordingly, final judgment below is reversed and the cause remanded with directions to the court to grant specific performance and to set a short and certain date for the buyers to pay that portion of the original principal sum ($70,000) that would have been paid to that date under the original written contract had the sale evidenced thereby been closed on July 2, 1980, as originally contemplated, but with interest on all such sums not only from July 2,1980, to their original due date, but also from their original due date to the date of actual payment, all at the rate provided in the contract.

REVERSED AND REMANDED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . As to a buyer’s measure of money damages against a seller who sells to a third party who takes in good faith, see Gassner v. Lockett, 101 So.2d 33 (Fla.1958), Key v. Alexander, 91 Fla. 975, 108 So. 883 (1926), and Fleck, Vendor and Purchaser: Recovery for Loss of Profits from Contemplated Sale or Use of Land, Where Vendor Fails or Refuses to Convey, 56 Fla.B.J. 453 (1982).


text:
    Richard A. BRADY, Appellant, v. Franklin Victor EDGAR and Daphne W. Edgar, his wife, Appellees.
    No. 81-1259.
    District Court of Appeal of Florida, Fifth District.
    June 16, 1982.

      Ronald W. Sikes of Studstill, Vance & Sikes, Titusville, for appellant.
    Thomas E. Thoburn, Cocoa, for appellees.
   COWART, Judge.

This appeal challenges the trial court’s denial of acceleration by the mortgagees in a foreclosure.

On the facts of the case we find no abuse in the exercise of the trial court’s discretion to deny acceleration and foreclosure where the security was not impaired, notwithstanding that the trial court found the mortgagors in default for failure to maintain hazard insurance and to timely pay real estate taxes. However, we reverse that provision of the final judgment denying attorney’s fees and remand for the trial court to determine and award the mortgagee a reasonable attorney’s fee for services in the trial court and in the appellate court.

AFFIRMED in part; REVERSED in part.

DAUKSCH, C. J., and COBB, J, concur.

      . Section 59.46(1), Florida Statutes (1979), provides that a contract entered into after October 1, 1977, which provides for payment of attorney’s fees to a prevailing party shall be construed to include the payment of attorney’s fees to the prevailing party on appeal.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    John Charles BOWEN, Appellant, v. STATE of Florida, Appellee.
    No. 82-160.
    District Court of Appeal of Florida, Fifth District.
    June 16, 1982.
    John Charles Bowen, pro se.
    No appearance for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from an order denying his motion for post conviction relief. Appellant was convicted and sentenced on two counts of battery on a law enforcement officer. On count one, appellant was committed to the Department of Corrections as a youthful offender for four years, two years imprisonment followed by two years in a community control program. On count two appellant was placed on probation for five years, to run consecutively with the sentence under count one.

Appellant contends that under Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), his sentence on count one was an illegal split sentence. We disagree and AFFIRM the order based on the reasoning of Riley v. State, 407 So.2d 967 (Fla.2d DCA 1981).

AFFIRMED.

DAUKSCH, C. J., and COBB, J., concur.

      . Chapter 958, Fla.Stat. (1979).


author: SHARP, Judge.

text:
    Ralph R. HARNDEN and Cecelia Reno, for the use and benefit of Sweden House Smorgasbord of Florida Center, Inc., Appellants, v. John L. IDING, Henry A. Slater, John Albertson, Smorgasbord Management Company, a Delaware corporation, and Sweden House Smorgasbord of Florida Center, Inc., a Florida corporation, Appellees.
    No. 82-255.
    District Court of Appeal of Florida, Fifth District.
    June 16, 1982.
    Roger A. Kelly, of Fishback, David, Dominick & Bennett, Orlando, for appellants.
    Christopher F. Wells, of Harris, Barrett & Dew, St. Petersburg, for appellees.
   SHARP, Judge.

The order of the trial court transferring the venue of this action under section 47.-122, Florida Statutes (1981), is affirmed. However, the trial court neglected to order the moving party to pay costs as provided under section 47.191, Florida Statutes (1981). We therefore remand so the order may be amended to require the movant to pay the taxable costs.

AFFIRMED IN PART AND REMANDED.

DAUKSCH, C. J., and ORFINGER, J., concur.