text:
    THE FLORIDA BAR, Complainant, v. Thomas J. DAVIS, Jr., Respondent.
    No. 61435.
    Supreme Court of Florida.
    Aug. 26, 1982.

      Stanley A. Spring, Staff Counsel, Tallahassee, and Stephen M. Zukoff, Bar Counsel, Miami, of The Florida Bar, for complainant.
    Lionel Barnet of the Law Offices of Lionel Barnet, Miami, for respondent.
   PER CURIAM.

This is a disciplinary action brought by The Florida Bar against Thomas J. Davis, Jr., a Florida lawyer. Both the bar and Davis have petitioned for review of the report and recommendation of the referee. We have jurisdiction. Art. V, § 15, Fla. Const.

The complaint against Davis contained three counts. The first count alleged various offenses arising out of his involvement in the sale of time-share unit-weeks at a vacation development in the Florida keys. Count II alleged improper disbursements from a trust account, and count III alleged that Davis misled the bar during the investigation leading to count I.

As to count I the referee found that Davis served as the president, a director, and the resident agent of Vacation Wonderlands of America, Inc. (Vacation), a corporation that purchased land in the Florida keys. At the same time Davis served as an officer, a director, and the resident agent of Encore Resorts International, Inc. (Encore), whose purpose was to sell time-share unit-weeks to the public. Vacation and Encore had certain common officers and directors, including Davis, and he acted as counsel for both corporations.

On December 31, 1973 Vacation purchased a tract of land on Long Key, Florida, for $252,500.00, making a $75,000.00 down payment and executing a $177,500.00 purchase money mortgage. Two days later, Vacation and Encore entered into a contract for deed wherein Encore agreed to purchase the land from Vacation for $205,-000.00 to be paid in three annual installments of $68,334.00 plus interest. Vacation agreed to convey the land to Encore upon receipt of the final payment due in January 1977. This contract was never recorded.

Sometime in February 1974 Encore began selling time-share unit-weeks for townhouses located on the property. The agreement for deed given each purchaser specifically provided that upon payment in full the purchaser would receive a warranty deed and title insurance coverage. Encore never provided these to the purchasers because of the mortgage encumbrances and because Encore did not own title to the property.

The referee found that Davis was closely associated with both Vacation and Encore, not only as the companies’ attorney, but also as an officer and a director to whom other officers, directors, and employees of the companies looked for advice and guidance. Accordingly, he must have realized, as an attorney, the impossibility under the circumstances of delivering warranty deeds and title insurance to the purchasers of units who paid the purchase price in full. Failure to provide adequate protection for those purchasers was, in the referee’s opinion, a breach of Davis’ professional responsibility.

In April 1975 the original owners of the property brought a foreclosure action against Vacation, but Encore continued to sell units after this time. Seventy-five purchasers contributed approximately $194,-510.00 towards the purchase of the units from Encore between 1974 and 1976. On October 5, 1976 the property was sold pursuant to a foreclosure order, and all of the purchasers lost their units.

Because of his close connection with Vacation and Encore and his knowledge of the foreclosure suit, the referee found that Davis had a duty as a member of the bar to insist that Encore immediately cease and desist from selling unit-weeks. Davis’ conduct in not doing so was clearly unprofessional, in complete disregard for the consequences to the purchasers, and prejudicial to the legal profession. The referee also found that it reflected on his fitness to practice law. The bar introduced no competent evidence at trial, however, to indicate that Davis benefited financially from the operation of either Vacation or Encore.

The referee found Davis guilty as to count I for violating Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(5) and (6), 7-102(A)(7) and (8), and Florida Bar Integration Rule, article XI, rule 11.02(2). He was found not guilty as to counts II and III dealing with disbursements from an escrow account and misleading the bar. The referee then recommended a public reprimand and suspension from the practice of law for three months with automatic reinstatement. He assessed costs against Davis in the amount of $5,026.39 from the total costs of $16,-977.36. Both the bar and Davis have raised issues in their petitions.

The bar’s petition for review objects to the proposed disciplinary measures as inadequate. In view of the seriousness and fraudulent nature of the misconduct involved, the bar requests that Davis be disbarred. The bar also requests that Davis be found guilty of count III, misleading the bar, and that the full cost of the proceedings be assessed against him.

Davis’ petition for review challenges the referee’s finding of guilt as to count I. He further alleges a denial of due process on three grounds: (a) denial of counsel, (b) protracted duration of the case, and (c) failure to allow him to prepare properly for trial.

We have reviewed the record and the referee’s report and find that there is competent substantial evidence to support the referee’s findings of fact. Considering the totality of the circumstances, we also find that the recommendation for punishment is adequate and should be adopted. While Davis was found guilty of failing to provide adequate protection for the unit purchasers and of failing to insist that Encore immediately cease and desist from selling units after the foreclosure action was instituted, the referee did not find his actions fraudulent in nature. We find no merit in Davis’ allegations that the bar’s actions in prosecuting this matter denied him due process. While the delay in reaching a final resolution is regrettable, it was not prejudicial and should not happen under the new rules.

The bar also complains of the failure of the referee to assess all of its costs against the respondent. In disciplinary actions costs include court reporter’s fees, copy costs, witness fees and traveling expenses, and reasonable traveling and out-of-pocket expenses of the referee and bar counsel. Costs shall also include a $150 charge for administrative costs at the grievance committee level and a $150 charge for administrative costs at the referee level. Fla.Bar Integr. Rule, art. XI, rule 11.06(9)(a).

The bar incurred costs much greater than those recommended by the referee. The underassessment of costs was caused in part by the finding of not guilty in two of the three charges. The referee recommended one-third recovery on some of the costs such as the court reporter. The un-derassessment was likely influenced by a perception of the referee that the costs were greatly disproportionate to those generally generated in a disciplinary action. We have set no hard or fast rules relative to the assessment of costs in disciplinary proceedings. In civil actions the general rule in regard to costs is that they follow the result of the suit, section 57.041, Florida Statutes (1981), Dragstrem v. Butts, 370 So.2d 416 (Fla. 1st DCA 1979), and in equity the allowance of costs rests in the discretion of the court. National Rating Bureau v. Florida Power Corp., 94 So.2d 809 (Fla.1956).

We hold that the discretionary approach should be used in disciplinary actions. Generally, when there is a finding that an attorney has been found guilty of violating a provision of the code of professional responsibility, the bar should be awarded its costs. At the same time the referee and this Court should, in assessing the amount, be able to consider the fact that an attorney has been acquitted on some charges or that the incurred costs are unreasonable. The amount of costs in these circumstances should be awarded as sound discretion dictates. In this case the bar submitted no information on its costs restricted to count I. We find that the referee’s recommendation of allowing one-third of certain costs where there has been a finding of guilt on one charge but not on two others to have been reasonable.

We approve the recommendations of the referee. The respondent, Thomas J. Davis, Jr., is hereby suspended from the practice of law for three months. Publication of this order in the Southern Reporter will serve as a public reprimand. Davis will have twenty days from the date of this order to take steps necessary to protect his current clients. Costs in the amount of $5,026.39 are charged against the respondent.

It is so ordered.

ADKINS, BOYD, OVERTON, SUND-BERG and McDONALD, JJ., concur.

EHRLICH, J., concurs in part and dissents in part with an opinion, with which ALDERMAN, C. J., concurs.

EHRLICH, Justice,

concurring in part and dissenting in part.

I concur with the finding of guilt, but I am of the opinion that respondent’s suspension should be for a period in excess of three months so that proof of rehabilitation would be required. The latter is necessary for the protection of the public.

I am also of the opinion that the bar should recover more of its costs. It appears from the record that far greater effort was required and expended in proof of count I than the other two counts. Under these circumstances, it would be fair and reasonable to assess as costs at least two-thirds of the total court reporter’s bill and two-thirds of the cost of investigators, rather than one-third of such costs.

ALDERMAN, C. J., concurs.

       Had the facts demonstrated that this attorney was guilty of fraud or a conspiracy to commit a fraud on the public, we likely would disbar him.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Alberto GARCIA-NAVARRO, Respondent.
    No. 62043.
    Supreme Court of Florida.
    Aug. 26, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Robert D. Rosenbloom, Bar Counsel, Miami, of The Florida Bar, for complainant.
    Alberto Garcia-Navarro, in pro. per., for respondent.
   PER CURIAM.

Alberto Garcia-Navarro has filed a petition for leave to resign permanently as a member of the Florida Bar. The Florida Bar concurs.

In his petition Mr. Garcia-Navarro admits and describes making numerous unauthorized “loans” to himself from a title company he owned, which in reality was the multiple conversion of escrow funds to himself which he used for personal or other business interests. He admits to the conversion of clients’ funds. Losses to others extend into the hundreds of thousands of dollars. He also admits to other lesser violations.

Alberto Garcia-Navarro has demonstrated an unfitness to be a lawyer. His petition to resign should be, and is hereby, quickly and unequivocally accepted. We commend him only for resigning without leave to apply for readmission rather than awaiting disbarment.

We are both saddened and dismayed that the public has to suffer loss at the hands of one sworn to uphold the law. We trust that the consequences of his acts will deter other lawyers from succumbing to the temptation to “borrow” from funds entrusted to them which belong to others. Should they do so, they too should forfeit their privilege of being a lawyer.

The petition for leave to resign is accepted, effective immediately.

It is so ordered.

ADKINS, A. C. J., and BOYD, OVER-TON, McDonald and EHRLICH, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. G. Robert HARRIS, Respondent.
    No. 62148.
    Supreme Court of Florida.
    Aug. 26, 1982.

      John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Patricia S. Etkin, Bar Counsel, Miami, of The Florida Bar, for complainant.
    Philip Mulry, Hallandale, for respondent.
   PER CURIAM.

This matter is before the Court on petition for approval of conditional guilty plea to violations of disciplinary rules 1-102(A)(3), (4), and (6) and 9-102(A)(2), (B)(3), and (4) of the Code of Professional Responsibility of The Florida Bar and rules 11.02(3)(a) and 11.02(4) of the Integration Rule of The Florida Bar. We approve the petition and accept the terms thereof.

Harris admits to issuing checks for which there were insufficient funds and issuing cheeks drawn on an account that was closed. He also failed to deposit funds in a trust account and failed to fulfill a promise to refund an overpayment of funds on a fee he charged. These admissions warrant the agreed finding of violations as outlined above and the imposition of the agreed penalties.

G. Robert Harris shall be suspended from the practice of law for a period of one (1) year and thereafter until rehabilitation is proven. He is ordered to make restitution to Earl Hitchens, Florida Silica Sand Co., Inc., Plaza Bank of Miami, and People’s Hialeah National Bank. Costs in the amount of $1,211.00 are assessed against Harris, with execution to issue and interest at the rate of twelve percent to accrue on all costs not paid within thirty days of this Court’s final order, unless the time for such payment is extended by the board of governors.

The suspension shall be effective September 27, 1982, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business.

It is so ordered.

ADKINS, Acting C. J., and BOYD, SUNDBERG, McDONALD and EHRLICH, JJ., concur.


author: ADKINS, Justice.

text:
    STATE of Florida, Petitioner, v. Dennis Charles JEFFERSON, Respondent.
    No. 60189.
    Supreme Court of Florida.
    Sept. 2, 1982.

      Jim Smith, Atty. Gen. and Barbara Ann Butler, Asst. Atty. Gen., Daytona Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Cathleen Brady, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.
   ADKINS, Justice.

The petitioner in this case seeks review and reversal of the decision of the Fifth District Court of Appeal in Jefferson v. State, 391 So.2d 747 (Fla. 5th DCA 1980). Conflict is alleged between Jefferson and the cases of Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972) and Perlman v. State, 269 So.2d 385 (Fla. 4th DCA 1972). We have jurisdiction pursuant to article V section 3(b)(3), Florida Constitution.

Respondent was charged by information with and convicted by a jury of one count of burglary and one count of grand larceny. On appeal to the district court the respondent contended that the trial judge erred by not granting his motion for acquittal. Agreeing with respondent’s contention, the district court reversed the trial court and remanded the cause with directions for the trial court to grant a judgment of acquittal.

The information charged that respondent committed the offenses between June 18 and June 21, 1977. Defense counsel requested more specificity in the charge so the state filed an amended statement of particulars specifying that the offense occurred “within five hours either side of 1:00 a. m. on June 21, 1977, in Titusville, Bre-vard County, Florida.”

The proof adduced at trial showed that the store in question was in fact burglarized late one Saturday night and early one Sunday morning between June 19 and June 21, 1977. The trial judge took judicial notice that June 19,1977 was Sunday, June 20 was Monday and June 21 was Tuesday.

Respondent moved for a judgment of acquittal based on the State’s failure to prove that a crime was committed at the time specified in the statement of particulars. The trial judge denied the motion and was reversed by the district court. We are thus presented with the question of whether a bill of particulars specifying an exact date upon which an offense occurred limits the prosecution, if an objection is made, to proof of an offense occurring only on that date, under the particular information. This is a question we resolved indirectly in State v. Beamon, 298 So.2d 376 (Fla.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975), in which we said that “... the effect of such a specification of date in a bill of particulars is to narrow the Indictment or Information as to the time within which the act or acts allegedly constituting the offense may be proved.” 298 So.2d at 379 (Citations omitted.) We qualified our holding in Beamon, however, when we decided the case of Hoffman v. State, 397 So.2d 288 (Fla.1981). The district court in Hoffman held that a statement of particulars can be amended if such amendment will not prejudice the defendant. We felt, as did the district court, that the issue of prejudice to the defendant should be considered.

There is a significant distinction, however, between the facts of Hoffman and those in the instant case. In Hoffman the state moved to amend the statement of particulars, which motion the trial court granted, and the case proceeded to conviction. No such motion was made in the instant case at the time the state realized that its proof did not conform to the already once amended statement of particulars. (The amended statement of particulars was upon motion of defense counsel.) The prosecutor stated that he had no objection to amending the statement of particulars to conform if defense counsel would stipulate to the amendment. This remark does not constitute a motion to amend and absent such a motion the trial judge should have directed a verdict of acquittal.

The failure of the prosecutor to move to amend the statement of particulars to conform with the proof adduced at trial sufficiently distinguishes the instant case from Hoffman so that Hoffman does not apply.

The Fifth District Court of Appeal decided this case based on State v. Beamon. We would add only that Beamon has been qualified by Hoffman, but to utilize the rationale of Hoffman, a motion to amend must have been made by the prosecutor during the trial. Absent this motion, Hoffman is distinguishable and Beamon controls.

The cases of Howlett v. State and Perlman v. State, cases which allegedly conflict with the decision of this Court in Hoffman v. State, are distinguished from Hoffman on the same basis as is the instant ease. We approve the decision of the district court and remand this cause to the district court for further remand to the trial court with instructions to grant a judgment of acquittal.

It is so ordered.

ALDERMAN, C. J., and BOYD, OVER-TON, SUNDBERG and McDONALD, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. B. Garnett PAGE, Respondent.
    No. 60506.
    Supreme Court of Florida.
    Sept. 2, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Roberta J. Fox, Bar Counsel, Tampa, of The Florida Bar, for complainant.
    No appearance for respondent.
   PER CURIAM.

This attorney-discipline proceeding is before the Court on the complaint of The Florida Bar and the report of a referee. Art. V, § 15, Fla.Const.; Fla. Bar Integr.R., art. XI, Rule 11.09.

The Bar’s complaint charges respondent with failure to represent a client in a criminal matter after agreeing to do so and accepting a fee. The referee found that respondent received a fee of $1,000 but then failed to represent the client. Soon after the payment of the fee, neither the client, his family, nor his friends were able to make any contact with respondent. Respondent did not attend when the client had to appear in court. Neither did he refund any of the money paid him as a fee.

The referee found that respondent violated the Code of Professional Responsibility, Disciplinary Rules 1-102(A)(6) (conduct adversely reflecting on fitness to practice law), 2-110(A)(l) (withdrawal from representation without court permission), 2-110(A)(2) (withdrawal without attending to protection of client’s interests), 2-110(A)(3) (withdrawal without refunding unearned portion of fee), 6-101(A)(3) (neglect of a legal matter entrusted to lawyer by client), 7-101(A)(2) (failure to carry out a contract of employment), and 7-101(A)(3) (conduct causing prejudice or damage to client).

The referee recommends that respondent be suspended from the practice of law for three years, that he be required to make restitution of $500 each to the client and to the Florida Bar Client Security Fund, and that he attend and complete, including successful completion of an examination, a course in legal ethics offered by a law school.

We approve and adopt the referee’s findings and recommendations. The respondent is hereby suspended under the above-stated conditions. Costs of these proceedings are assessed against respondent in the amount of $429.00.

In a separate disciplinary proceeding in 1980, we placed respondent on probation. The Florida Bar v. Page, 381 So.2d 1357 (Fla.1980). On May 5, 1981, we suspended respondent from the practice of law for failure to comply with the conditions of his probation. Pursuant to that order respondent is currently under suspension until such time as he demonstrates compliance with the terms of his probation. The suspension we order today is imposed consecutively to respondent’s current suspension. That is, the period of suspension shall commence when respondent’s current suspension terminates.

It is so ordered.

ALDERMAN, C. J., and BOYD, OVER-TON, MCDONALD and EHRLICH, JJ., concur.


author: BOYD, Justice.

text:
    STATE of Florida, Petitioner, v. James Leo DODD, Respondent.
    No. 60634.
    Supreme Court of Florida.
    Sept. 2, 1982.

      Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., Miami, for petitioner.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for respondent.
   BOYD, Justice.

The State of Florida seeks review of a decision of the District Court of Appeal for the Third District of Florida, reported at 396 So.2d 1205. The district court certified that its decision is in direct conflict with decisions of two other district courts of appeal, and it is on this basis that we accept jurisdiction. Art. V, § 3(b)(4), Fla.Const. The narrow question on which conflict exists is whether the exclusionary rule embodied in article I, section 12 of the Florida Constitution applies in probation revocation proceedings. In accordance with the constitutional language and the case of Grubbs v. State, 373 So.2d 905 (Fla.1979), we hold that it does.

Respondent James Leo Dodd was on probation pursuant to previous convictions when the police decided to question him in connection with their investigation of a murder. He accompanied some officers to a police station and was interrogated. The interrogation ultimately produced a confession or inculpatory statement and Dodd was then arrested and formally charged with murder in the second degree. The arrest and accusation also led to the state’s charging Dodd with violating the terms of his probation, and the state instituted proceedings to have the probation revoked.

In connection with the charge of murder, Dodd’s defense attorney moved to have the confession excluded from evidence on the ground that it was the product of an illegal arrest. The court scheduled a hearing on the motion to suppress, and also scheduled a hearing on the revocation of probation. The revocation proceeding was held immediately following the hearing on the motion to suppress.

The trial court held that respondent’s statement could not be used against him at trial on the charge of murder because it was the product of illegal detention. Dodd’s person, the court ruled, was unreasonably seized in violation of the Fourth and Fourteenth Amendments to the United States Constitution.

The court then proceeded to consider the matter of revoking respondent’s probation. Based on the evidence he had just excluded from the murder trial, the judge found that Dodd had violated his probation by committing murder, revoked his probationary status, and sentenced him to four consecutive five-year prison terms on the original charges.

The state appealed the order suppressing respondent’s confession in the prosecution for murder. Dodd appealed the ruling that his illegally obtained confession could be used as evidence against him in the probation revocation hearing.

The district court first held that the trial court had erred in concluding that respondent’s confession was obtained in violation of the Fourth Amendment. The district court said that there had been an inadequate evidentiary basis for the conclusion, and remanded for further proceedings on respondent’s motion to suppress. This portion of the district court’s decision is not before us for review. The district court went on to say that the trial court had also erred in holding that the exclusionary rule does not apply in probation revocation proceedings. If indeed the confession was obtained by means that violated the constitutional principle against unreasonable seizures of persons, the court said, then the exclusionary rule would apply in probation revocation proceedings to the same extent as in a prosecution for the new, separate criminal offense. The state now seeks review of this ruling.

The district court grounded its ruling on this Court’s decision in Grubbs v. State, 373 So.2d 905 (Fla.1979). There, we noted that the federal circuit courts have fairly consistently taken the view that the Fourth Amendment exclusionary rule is not applicable in probation revocation proceedings. The Fourth Amendment exclusionary rule is a creature of judicial decisional policy. Broadly stated, its purpose is to deter illegal police conduct by denying the state the benefit of improperly obtained evidence. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed.2d 1782 (1949); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).

We held in Grubbs, however, that article I, section 12 of the Florida Constitution contains an explicit exclusionary rule of constitutional stature. Article I, section 12 provides:

SECTION 12. Searches and seizures. —The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.

The exclusion from evidence of articles and information obtained in violation of article I, section 12 is constitutionally mandated rather than being a result of judicial policy.

As a consequence, in Florida for evidence derived from a search or seizure to be admissible in either probation revocation proceedings or a new criminal action, the evidence must be properly or reasonably obtained given the circumstances and the responsibilities of the probation supervisor or a law enforcement official who makes the search and seizure.

Grubbs v. State, 373 So.2d at 909. A person’s status as a probationer may be taken into consideration in determining whether a search or seizure is unreasonable for constitutional purposes, but in Grubbs this Court unequivocally repudiated the notion that the article I, section 12 exclusionary rule may simply be ignored at a probation revocation hearing.

Therefore, if indeed the evidence in question was obtained in violation of article I, section 12, Florida Constitution, by means of a search or seizure that was unreasonable under all the circumstances, then such evidence “shall not be admissible in evidence” regardless of the type or nature of the proceeding in which the evidence is offered. See Ray v. State, 387 So.2d 995 (Fla. 4th DCA 1980), cert. denied, 394 So.2d 1153 (Fla.1981).

Subject to the qualifying remarks in the foregoing opinion and in the opinion in Grubbs v. State, we hold that the Florida constitutional exclusionary rule for evidence obtained by means of searches or seizures that are unreasonable under article I, section 12 is applicable in probation revocation proceedings.

The decision of the district court of appeal is approved with directions that the case be remanded to the trial court for further proceedings in accordance with the district court’s mandate.

It is so ordered.

ALDERMAN, C. J., and ADKINS, OVERTON, SUNDBERG, McDONALD and EHRLICH, JJ., concur.

      . State v. Dodd, 396 So.2d 1205 (Fla. 3d DCA 1981).

      . The opinion in Croteau v. State, 334 So.2d 577 (Fla.1976), contains a statement to the effect that the exclusionary rule does not apply in revocation proceedings. It was unnecessary to decide that question there, however, so the statement may be regarded as dicta. The case did not deal with revocation, but with prosecution for a new offense. Moreover, the majority opinion did not mention article I, section 12, Florida Constitution.


text:
    STATE of Florida, Petitioner, v. Nicolaas Mathias HUPPERTZ, Respondent.
    No. 60958.
    Supreme Court of Florida.
    Sept. 2, 1982.
    Jim Smith, Atty. Gen. and Anthony C. Musto and Theda R. James, Asst. Attys. Gen., Miami, for petitioner.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for respondent.
   PER CURIAM.

We exercise discretionary conflict jurisdiction and approve the decision of the district court of appeal, Huppertz v. State, 399 So.2d 992 (Fla. 3d DCA 1981). State v. Dodd, 419 So.2d 333 (Fla.1982); Grubbs v. State, 373 So.2d 905 (Fla.1979).

It is so ordered.

ADKINS, A. C. J., BOYD, OVERTON, SUNDBERG and McDONALD, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Sherman NEALY, Respondent.
    No. 60980.
    Supreme Court of Florida.
    Sept. 2, 1982.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., Miami, for petitioner.
    Michael H. Tarkoff of Flynn, Rubio & Tarkoff, Miami, for respondent.
   PER CURIAM.

We exercise our discretionary jurisdiction to review the decision below, Nealy v. State, 400 So.2d 95 (Fla. 3d DCA 1981), because of direct conflict with decisions of other district courts of appeal.

We hold that the exclusionary rule embodied in article I, section 12, Florida Constitution, is applicable in probation revocation proceedings. State v. Dodd, 419 So.2d 333, (Fla.1982); Grubbs v. State, 373 So.2d 905 (Fla.1979).

We therefore approve the decision of the district court of appeal.

It is so ordered.

ADKINS, A. C. J., and BOYD, OVER-TON, SUNDBERG and McDONALD, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Thomas W. MONTGOMERY, Respondent.
    No. 61161.
    Supreme Court of Florida.
    Sept. 2, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee and Jacquelyn Plasner Needelman, Bar Counsel, Fort Lauderdale, of The Florida Bar, for complainant.
    No Appearance, for respondent.
   PER CURIAM.

This disciplinary action is before us on the complaint of The Florida Bar and the report of the referee recommending disbarment. Neither the Bar nor respondent has petitioned for review.

We find that the instant cause should be dismissed because of mootness since, while this matter was pending, this Court disbarred respondent. Florida Bar v. Thomas W. Montgomery, 412 So.2d 346 (Fla.1982). In dismissing this cause, we emphasize that, should respondent ever petition this Court for reinstatement to the practice of law in Florida, the findings and recommendations of the referee will be proper subjects for consideration in the reinstatement proceeding, in the same manner that they would be considered had they formed the basis for respondent’s disbarment.

It is so ordered.

ALDERMAN, C. J., and OVERTON, SUNDBERG, McDONALD and EHRLICH, JJ., concur.


author: OVERTON, Justice.

text:
    Richard John LEWIS, Petitioner, v. STATE of Florida, Respondent.
    No. 61269.
    Supreme Court of Florida.
    Sept. 2, 1982.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for respondent.
   OVERTON, Justice.

Pursuant to article V, section 3(b)(4), Florida Constitution, the Fourth District Court of Appeal has certified the following question to be one of great public importance:

May an appellate court find that the failure of the trial court to instruct the jury pursuant to the provisions of Rule 3.390(a) of the Florida Rules of Criminal Procedure constitutes harmless error?

Under the instant facts, the trial court refused to instruct the jury on the minimum and maximum penalties for the primary offense charged. The district court at first reversed for a new trial on the authority of this Court’s decision in Tascano v. State, 393 So.2d 540 (Fla.1980), but, on rehearing, withdrew its earlier opinion and affirmed the conviction. The district court reasoned that, because petitioner had been convicted of a lesser included offense, the trial court’s refusal to give potential penalties was harmless error. Under the limited circumstances of this case, we accept the reasoning of the district court.

In its opinion, the district court stated:

The apparent purpose of the provisions of Rule 3.390(a) mandating an instruction on the penalties for the offense for which the accused is on trial is to inform the jury of the potential consequences upon the accused of the jury’s decision as to which offense the accused has been proved guilty. This information may then be utilized by the jury as another factor to be considered in the jury’s exercise of its broad authority to determine the accused’s guilt or innocence of the offense formally charged and the lesser offenses included therein. From the standpoint of the accused a consideration of this factor might well result in the jury finding him guilty of a lesser offense in a case where the proof of the higher offense is marginal and the disparity in penalties between the offenses involved is substantial. In the case at hand, since the appellant has been found guilty of the least of the offenses included within the formal charge, we do not believe the appellant could have been prejudiced by the trial court’s failure to instruct on the penalties for the highest offense for which he was on trial. Any issue as to whether the jury would have found the appellant guilty of a lesser offense because of the severity of the penalty for the offense charged has been rendered moot by the jury’s decision.

399 So.2d 473, at 474-75 (footnote omitted). We agree with the district court’s conclusions. The inclusion of potential penalties for the main charge could not have benefit-ted petitioner because the jury in the instant case found petitioner guilty only of the least of the lesser included offenses. Reversible error could only occur if petitioner was found guilty of the offense charged.

We hold that, under the instant circumstances, the trial court’s failure to give minimum and maximum penalties on the offense charged was harmless error. The instant district court decision is accordingly approved.

It is so ordered.

ADKINS, BOYD, SUNDBERG, MCDONALD and EHRLICH, JJ., concur.

ALDERMAN, C. J., concurs in result only.


text:
    Michael Dewayne KEMPER a/k/a Michael Dewayne Culala, Petitioner, v. STATE of Florida, Respondent.
    No. 61426.
    Supreme Court of Florida.
    Sept. 2, 1982.

      Richard L. Jorandby, Public Defender and Jon May, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The instant decision of the district court of appeal is approved, 404 So.2d 1184. See Lewis v. State, 419 So.2d 337, No. 61,269 (Fla. September 2, 1982).

It is so ordered.

ALDERMAN, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, MCDONALD and EHRLICH, JJ., concur.


author: BARKDULL, Judge. PER CURIAM.

text:
    Harry B. GRABOW, Appellant, v. Susan GRABOW, Appellee.
    No. 81-1567.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    On Rehearing Sept. 28, 1982.
    Cheves & Rapkin and Charles Cheves, Venice, for appellant.
    Young, Stern & Tannenbaum and Glen Rafkin, North Miami Beach, for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   BARKDULL, Judge.

The appellant, former husband, Harry, appeals an order entered on rule to show cause and various motions for modification, and the former wife, Susan, takes a cross-appeal from that same order. The husband also seeks reversal of an order on costs and fees.

After an 11-year marriage, the parties were divorced in 1974. This appeal arises out of post-decretal motions and petitions for modification.

The divorce decree incorporated a settlement agreement which provides in part:

(4) Additional Support for Wife and Children The husband shall pay to the wife as additional support .. . 32% of any net income after taxes which he receives in excess of $13,000.

The husband’s income was defined as follows:

For the purpose of this agreement, the husband’s income shall be interpreted to mean that amount which is attributable to him as fees from his medical practice or any other income after taxes have been deducted, but after paying his office expenses, or his pro rata share thereof in the event he does not practice alone.

In finding Harry in contempt for failure to pay additional support, the trial court adopted the figures compiled by Susan’s witness, a CPA who analyzed the husband’s books and records. This CPA testified that the husband has improperly deducted certain items as office expenses, such as $4,500 for his Porsche, $1,500 alimony payments, the profit on the sale of his home which was reinvested in another home, etc. Harry points out that the approach adopted by the judge prevents him from deducting as office expenses lease payments on office equipment, advertising, loan payments on office improvements, and interest on loans to finance equipment. In any event, the court found that Harry had about $33,000 of income subject to the “additional support” formula, that the amount of additional support for 1978 was $10,270.39, and that the husband had paid $2,387 thereon leaving a deficit of $7,883.39.

After the divorce, Susan worked off and on as a fashion sales representative in New York from 1974 to June 1977, but she developed severe depression problems, manifested by obesity and suicidal tendencies. In May 1977 she began seeing a psychologist, Dr. Snyder, who found her to be hysterical, suicidal, and in need of more help. He referred her to Dr. Salkin, a psychiatrist who treated her until she moved to Florida in 1978. Both those doctors opined that an emergency situation existed and that psychiatric intervention was necessary.

Upon moving to Florida, Susan began seeing Dr. Leibeskind who ultimately referred her to Duke’s weight program. By the time she went to Duke where she received psychiatric care from Dr. Pauk, her obesity had begun to have physical ramifications such as abnormal sugar metabolism, decreased kidney function, etc., Dr. Liebes-kind testified that Susan was horribly depressed and that her treatment was necessary. Dr. Pauk testified that the care at Duke could in “no way be construed to be elective in nature.”

According to the evidence, Harry was consulted about the psychiatric care, that Dr. Salkin talked directly with Harry, that he was advised in writing about the Duke program. She sought sanctions against him for failure to pay her medical bills in accordance with the following provision of the Settlement Agreement:

(9) Medical Insurance * * * The husband further agrees to pay all elective medical, dental and psychiatric bills not covered by said insurance, provided that any treatment not of an emergency nature, will only be secured after consulting with the Husband (HARRY) but he shall not unreasonably withhold his consent.

The trial court specifically found that “All of the psychiatric services received by Susan were either of an ‘emergency nature’ or necessary and Harry ... had and still has the financial ability to pay therefor and his failure to do so was contemptuous.”

Susan claims that she was unable to continue working in 1977 due to her mental health but when asked why she cannot work now, she stated “I don’t know.” Her doctors testified that working could be beneficial to her but that she would have to make the decision about returning to the work force. In connection with Susan’s claim for increased alimony, the lower court stated that, “while it is clear that there has been a substantial and meaningful change in the financial circumstances of both parties ... HARRY’S income and ability to pay having increased dramatically and SUSAN’S needs having also greatly increased,” the court determined that the additional support clause of the agreement was geared to provide for the increase in income since the agreement did not otherwise provide for modification and that Susan’s motion for modification must, therefore, be denied.

The appellant contends it was error to hold him liable for the psychiatrist’s bills when there was no showing that besides the immediate situation in June 1977 that the care was rendered on an emergency basis or with his consent.

Appellant also contends the trial court erred in adjudicating him in contempt with respect to the additional support of 1978 because the trial court erred in the allowance of business expenses.

Harry also seeks review of an award of attorney’s fee of $50,000.00 contending that the fee was excessive.

Susan has cross-appealed contending that the trial court erred in denying her motion for modification to increase the amount of support.

We find no error in the award of the medical expenses. The record supports this award either on the theory that they were caused by an emergency or that consent to this expense was unreasonably withheld by Harry. Firestone v. Firestone, 263 So.2d 223 (Fla.1972); Turner v. Turner, 383 So.2d 700 (Fla. 4th DCA 1980); Goodman v. Goodman, 204 So.2d 21 (Fla. 4th DCA 1967).

The final judgment limited the deductions that Harry, as a doctor, could make, in determining his “net income” which would be subject to the 32% provisions of the contract to the following:

A realistic interpretation of “office expenses” is reasonable salaries for supporting office personnel, reasonable office rent, office related telephone expenses, office supplies and office equipment rental. Loans and capital investments for real or personal property (including equipment purchases, or other assets subject to depreciation or appreciation) are not considered as an “office expense”, as so defined. The Agreement does not and cannot reasonably be interpreted to provide that SUSAN should pay proportionately or otherwise for HARRY’S automobiles, satisfaction of his loans, payments toward his purchase of land, buildings or equipment nor for his personal expenses whether or not he uses his professional association as a conduit.

We think this limitation is too narrow and the trial court should have permitted the doctor to deduct from his gross, professional fee income the expenses that were reasonable and necessarily incurred in enabling him to earn these fees such as, but not limited to: capital expenses for necessary medical equipment, their finance payments, continuing education costs, automobile expenses, costs of obtaining office space for his professional office or medical facility, (free-hold or lease-hold) in other words, those costs which are normal expenses that are incurred in a medical profession as recognized by the Internal Revenue Service of the United States Government.

Finding error in this respect the order awarding additional amounts for the year 1978 is reversed and this matter will be returned to the trial court to reconsider the “net income” in accordance with the view above expressed. Because of this error we also reverse the order denying the motion for modification. The trial court denied this motion in part because the contract provision provided for the increase to Susan, if Harry’s income increased under the contract. This provision ■should not absolutely control the consideration of the motion to modify, but, should only be a factor.

Because the benefits awarded to Susan will be reduced by a redetermination of the “net income” of Harry’s, subject to the 32% provision, we also reverse the award of attorney’s fees and return this subject matter to the trial court for reassessment in light of the reduction in benefits obtained by the attorney for his client.

Therefore, the order under review is reversed as to the determination of the amount of Harry’s “net income” for the year 1978, as to the denial of Susan’s motion to modify and as to the award of attorney’s fees. In all other respects it is affirmed. The matter is returned to the trial court for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded with directions.

OPINION ON REHEARING

PER CURIAM.

The appellant has pointed out to us in a motion for rehearing that by an amendment to his motion to review costs he raised the propriety of an award of $4,000. as a fee to appellee’s accounting expert. The appellant contends that the trial court erred in fixing the fee without evidence as to its necessity and reasonableness. Lafferty v. Lafferty, 413 So.2d 170 (Fla. 2nd DCA 1982).

We find his petition to be well taken and reverse the award of $4,000. as accounting fees, with directions to reconsider the necessity for an award and the reasonableness of any such, after the parties have had full opportunity to present evidence on these issues.

      . We award the appellee attorney’s fees for service of her counsel in this court, but, return the matter to the trial court to fix the amount of said fees after the taking of evidence as to their value.


author: HENDRY, Judge.

text:
    PALTUCO CARIBBEAN OF FLORIDA, INC., Appellant, v. PERCY WILSON MORTGAGE AND FINANCE CORPORATION and National Life Insurance Company, Appellees.
    No. 81-1448.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Rehearing Denied Oct. 8, 1982.
    Greenbaum, Wolff & Ernst and Woodrow “Mac” Melvin, Jr., Miami, for appellant.
    Broad & Cassel and Wm. J. Gallwey, III, P. A. of Shutts & Bowen, Miami, for appel-lees.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   HENDRY, Judge.

Appellant Paltuco, plaintiff below, appeals from a summary judgment for defendants Percy Wilson and National Life Insurance Company (National) based on the trial court’s determination that Paltuco’s cause of action was founded on an oral agreement and was barred by the four year statute of limitations. We reverse.

The present litigation evolves from the failure of the financing for development of an apartment complex known as Silver Lake Phase II. Sidney Paley and Allen Tucker, principal stockholders of Paltuco, deeded the parcel for Phase II to a land trust at Barnett Bank with Dr. Robert Cornfeld as beneficiary. Thereafter, Paley and Tucker executed a loan application to Percy for financing on Phase II. The application designated Paltuco as the mortgagor and provided that Paley and Tucker would personally guarantee the loan.

National offered to purchase the loan and Percy accepted subject to the proviso that, in lieu of Paltuco, the mortgagor be a limited partnership with Dr. Cornfeld acting as a general partner. The letter also noted that:

This commitment, as it pertains to the Phase II loan, shall expire on June 12, 1974. However, for the purpose of obtaining the rent roll and disbursing the balance of the Phase II loan proceeds, the commitment shall remain operative through October 30, 1974.

The letter of commitment did not alter the personal liability of Paley and Tucker. Counsel for Paltuco executed copies of the loan commitment and forwarded the necessary deposit.

Percy requested certain amendments to the commitment including an extension of the June 12, 1974 disbursement date. National alleges that it agreed to some changes but not to extension of the commitment. Also at that time, Percy requested that the National Bank in St. Petersburg reissue a letter of credit with

an expiration date of November 30, 1974, in lieu of the present expiration date of May 2, 1974. This request has been initiated by the end investor, National Life Insurance Company, due to the fact that the commitment on the ... loan runs through October 30, 1974, and they wish the letter of credit to remain operative. ...

Construction proceeded and in May of 1974 Paley learned that the land trust was not going to accept delivery of the apartments. According to Paltuco, all agreed that Paltuco would take back title and be substituted on the loan commitment. Percy requested certain documents from Paley to effect this change. Although Dr. Cornfeld indicated by letter to Percy that upon execution of the mortgage the bank would convey the property to Paltuco, the transfer never occurred.

On October 18, 1974, National notified Paltuco that the commitment had expired. By letter of November 1, 1974, Percy also advised Paltuco that the commitment was cancelled.

Paltuco filed suit on September 6, 1979, alleging that a novation had occurred in that Percy had agreed to substitute Paltuco as mortgagor and title holder. Count II was directed to National.

National and Percy both raised the defense of statute of limitations. The trial court entered summary judgment, finding that Paltuco was travelling on an oral agreement between itself and a third party by which it was to receive the benefits of a written agreement between defendants and the third party, and since suit was filed more than four years after the oral agreement, it was barred by the statute of limitations.

As intended third party beneficiary of the mortgage loan commitment, which intention is clearly evidenced by the parties’ dealings, Thompson v. Commercial Union Insurance Co. of New York, 250 So.2d 259 (Fla.1971); Goodell v. K. T. Enterprises, Ltd., 394 So.2d 1087 (Fla. 1st DCA 1981); Cooper v. IBI Security Service of Florida, Inc., 281 So.2d 524 (Fla. 3d DCA), cert. denied, 287 So.2d 95 (Fla.1973); Flintkote Co. v. Brewer Co. of Florida, 221 So.2d 784 (Fla. 3d DCA), cert. denied, 225 So.2d 920 (Fla.1969), see generally Marianna Lime Products Co. v. McKay, 109 Fla. 275, 147 So. 264 (1933), appellant Paltuco’s cause of action is based on the written agreement and is governed by the five year limitation period of section 95.11(2), Florida Statutes, rather than the four year limitation period of section 95.11(3), as applied by the trial court in granting summary judgment for co-defendants Percy Wilson and National Life Insurance Company.

Material issues of fact also remain relative to (a) whether there was an agency relationship between Percy Wilson and National; (b) whether National bound itself on the written commitment either through its own actions or through the actions of Percy Wilson as its agent; and (c) whether National’s obligation as end investor pursuant to the loan commitment was extended to October 30, 1974 by the letter from Percy Wilson to the National Bank requesting reissuance of a letter of credit to National with an expiration date of November 30, 1974. If upon remand it is determined that Percy Wilson was not National’s agent and National was not obligated under the written loan commitment, a verdict shall be directed in National’s favor.

The summary judgment entered in favor of appellees Percy Wilson and National Life Insurance is reversed and the cause is remanded for further proceedings not inconsistent herewith.

Reversed and remanded with directions.


text:
    AETNA CASUALTY & SURETY CO., a Connecticut corporation and Anthony Maniglia, M.D., Appellants, v. Lorraine Harasz SEPE, Appellee.
    Nos. 81-1098, 81-1628.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Diane H. Tutt and Todd A. Co-wart, Miami, for appellants.
    Carey, Dwyer, Cole, Eckhart & Mason and Michael C. Spring, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Edwards v. Pratt, 335 So.2d 597 (Fla. 3d DCA 1976); Steward v. Cook, 218 So.2d 491 (Fla. 4th DCA 1969); Lydick v. Chance, 214 So.2d 885 (Fla. 2d DCA 1968); Rogers v. Visioneering Concrete Construction Company, 155 So.2d 163 (Fla. 2d DCA 1963).


text:
    QUICK ROOFING, INC., Appellant, v. Michaele LUCAS, Appellee.
    No. 81-2019.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Joe N. Unger, Miami, Max M. Hagen, North Miami Beach, Lisa Bennett, Miami, for appellant.
    David S. Kaufman, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Talianoff v. Ashanti Enterprises, Inc., 382 So.2d 856 (Fla. 3d DCA 1980); Country Clubs of Sarasota, Ltd. v. Zaun Equipment, Inc., 350 So.2d 539 (Fla. 1st DCA 1977); Sections 48.081(1)(d) and 48.091(2), Florida Statutes (1979). Cf. Southeastern Mail Transport v. Amoco Oil Company, 402 So.2d 522 (Fla. 1st DCA 1981).


text:
    C. H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2285.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and John F. Ro-benalt, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Ashford v. State, 274 So.2d 517 (Fla.1973); Reliford v. State, 241 So.2d 871 (Fla. 2d DCA 1970); Avis v. State, 221 So.2d 235 (Fla. 1st DCA 1969).


author: GRIMES, Judge.

text:
    Claude R. HODGE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1291.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 1982.
    Rehearing Denied Sept. 14, 1982.
    Larry C. Hoffman, Clearwater, and Robert G. Kipp, Dunedin, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Once again we face the difficult question of deciding when Williams rule testimony is admissible in a case involving sex crimes against a child.

Appellant was charged with two counts of sexual battery against his stepdaughter in violation of section 794.011(4)(b) and (e), Florida Statutes (1979). The stepdaughter, Sabrina Hodge, testified that appellant committed numerous acts of sexual battery against her when she was eleven years old under threat of physical harm. Over the appellant’s objection, the state introduced the testimony of appellant’s natural daughter, Renee Gamble. She stated that appellant had committed frequent acts of sexual battery against her by threats of violence when she was ten years of age. The appellant was convicted as charged. We affirm.

Appellant contends that the testimony of Renee Gamble was irrelevant and highly prejudicial in that it tended to prove only his bad character and propensity to commit sex crimes. He also argues that the acts described by Renee Gamble were not sufficiently similar, even if relevant, to qualify for admission under section 90.404(2), Florida Statutes (1979), and Williams v. State, 110 So.2d 654 (Fla.1959).

Much has been written on this subject, but the law in Florida remains in doubt. The testimony concerning Renee was clearly admissible under the line of decisions which has permitted similar fact testimony for the purpose of showing a “pattern of criminality.” Jones v. State, 398 So.2d 987 (Fla. 4th DCA 1981); Cotita v. State, 381 So.2d 1146 (Fla. 1st DCA 1980); Gossett v. State, 191 So.2d 281 (Fla. 2d DCA 1966). Yet, some argue that permitting the state to submit similar fact testimony to show a “pattern of criminality” amounts to nothing more than allowing proof of bad character and propensity. They argue that one’s “pattern of criminality” is not a legitimate issue upon which the state is entitled to submit relevant evidence to prove. Cotita v. State, 381 So.2d 1146, 1151 (Fla. 1st DCA 1980) (Smith, J., dissenting); Jones v. State, 398 So.2d 987, 989 (Fla. 4th DCA 1981) (Anstead, J., dissenting). Cf. Duncan v. State, 291 So.2d 241 (Fla. 2d DCA 1974), in which this court pointed out that proof of modus operandi is not an end in itself. In State v. Rush, 399 So.2d 527 (Fla. 2d DCA 1981), we acknowledged the difficulty of reconciling the proving of a pattern of criminality with the dictates of section 90.-404(2) and recommended that the Evidence Code be amended to explicitly admit similar fact evidence in child sexual molestation cases.

In the instant case, we need not entirely rest our decision to affirm on the premise that Renee’s testimony was admissible to establish a pattern of criminality. Under section 794.011(4), the state must prove the victim’s lack of consent as an element of the crime. The similar fact evidence demonstrating that appellant had perpetrated coerced sexual battery upon another young female member of his family was certainly relevant on the issue of lack of consent. Even Williams, itself, recognized the relevancy of similar fact evidence to meet the anticipated defense of consent in a rape case. Williams v. State, 110 So.2d at 663. In presenting its case in chief, the state could not run the risk of assuming that the lack of consent would not be an issue. Therefore, because Renee’s testimony was relevant to an issue in the case, it was properly admitted even if it had the incidental effect of blackening appellant’s character in the eyes of the jury.

Our holding does not collide with the supreme court’s recent decision in Coler v. State, 418 So.2d 238 (Fla.1982), because the lack of consent was not an issue in that case which involved sexual batteries upon children under the age of eleven. Moreover, we read that case only as holding that the trial court erred in permitting evidence of the defendant’s bizarre sexual behavior not committed directly against the defendant’s children.

Finally, we reject appellant’s contention that the testimony of Renee Gamble did not qualify as similar fact evidence because of the differences in the specific sexual batteries and the remoteness of time and place. The fact that appellant committed oral sex upon the somewhat younger Renee and vaginal sex upon Sabrina does not serve to make his actions dissimilar; both consisted of sexual batteries committed directly against the victims. Though occurring eight years ago in Ohio, appellant’s use of his familial authority to forcibly commit sexual battery upon a second young female member of his family provided sufficient “identifiable points of similarity” and the “level of uniqueness” as to qualify as similar fact evidence. Espey v. State, 407 So.2d 300 (Fla. 4th DCA 1981).

Appellant’s other points on appeal have no merit.

AFFIRMED.

OTT, C. J., and HOBSON, J., concur.


text:
    Arnoldo ALVAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1034.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1982.
    Rehearing Denied Oct. 8, 1982.
    Bierman, Sonnett, Beiley & Shohat and Benedict P. Kuehne, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Milazzo v. State, 377 So.2d 1161 (Fla.1979); Tresvant v. State, 396 So.2d 733 (Fla. 3d DCA 1981); United States v. Leaman, 546 F.2d 148 (5th Cir. 1977).


author: BASKIN, Judge.

text:
    FLORIDA PATIENT’S COMPENSATION FUND, Appellant, v. MERCY HOSPITAL, INC., a Florida corporation, et al., Appellee.
    No. 81-1575.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1982.
    Rehearing Denied Oct. 8, 1982.

      Steel, Hector & Davis and Talbot D’Al-emberte and Thomas R. Julin, Miami, for appellant.
    Joe N. Unger, Adams, Ward, Hunter, An-gones & Adams, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

While Wilmon Mosely was a patient at Mercy Hospital, he underwent a diagnostic procedure designed to determine whether he suffered from a blocked artery. As the catheter was pushed through an artery toward Mosely’s heart, the tip broke. Removal of the tip required surgery. After his recovery, Mosely filed suit against the manufacturer, the hospital, the doctor, and the Florida Patient’s Compensation Fund, alleging that he sustained injuries as a result of the surgery required to remove the tip. He demanded that punitive damages be assessed against the hospital. Following trial, the jury awarded Mosely compensatory damages from the doctor, the hospital, and the Florida Patient’s Compensation Fund and assessed $750,000 in punitive damages against Mercy Hospital. Under the amended final judgment, the fund must pay the punitive damages awarded against Mercy Hospital.

The fund has appealed the punitive damage award, arguing that punitive damages are designed to punish and therefore should be borne by the tort-feasor hospital rather than by the fund. We are asked to decide whether the Florida Patient’s Compensation Fund may be held liable for punitive damages resulting from the wrongful acts of a health care provider. We hold that the fund may not be assessed punitive damages incurred by a health care provider. Mercy Hospital must bear the cost.

The legislature established the Florida Patient’s Compensation Fund in response to a problem that it described as reaching crisis proportions in Florida. The problem was, and continues to be, the cost of medical professional liability insurance for health care providers and doctors, a cost ultimately borne by the consumer. In enacting section 627.353, Florida Statutes (1975), transferred to section 768.54 by section 627.353, Florida Statutes (Supp.1976), the Medical Malpractice Reform Act, the legislature protected patients and limited the financial liability of health care providers. Mercy Hospital, Inc. v. Menendez, 371 So.2d 1077 (Fla. 3d DCA 1979), appeal dismissed, cert. denied, 383 So.2d 1198 (Fla.1980).

According to section 768.54(3)(e)3, Florida Statutes (Supp.1978):

A person who has recovered a final judgment or a settlement approved by the fund against a health care provider who is covered by the fund may file a claim with the fund to recover that portion of such judgment or settlement which is in excess of $100,000 or the amount of the health care provider’s basic coverage, if greater....

The Act requires members of the fund to pay a fee calculated according to risk factors and location. In addition, section 768.-54(3)(c) provides:

If the fund determines that the amount of money in an account for a given fiscal year is in excess of or not sufficient to satisfy the claims made against the account, the fund shall certify the amount of the projected excess or insufficiency to the Insurance Commissioner and request the Insurance Commissioner to levy an assessment against or refund to all the participants in the fund for that fiscal year, pro-rated, based on the number of days of participation during the year in question. The Insurance Commissioner shall order such refund to, or levy such assessment against, such participants in amounts that fairly reflect the classifications prescribed above and are sufficient to obtain the money necessary to meet all claims for said fiscal year.

When the fund is forced to pay a judgment which exceeds its reserves, the hospital may be assessed additional amounts. Members also receive refunds when a surplus exists.

Although the question of responsibility for punitive damages has not previously been decided with regard to the fund, private insurers have been ruled not liable for punitive damages. Nicholson v. American Fire & Casualty Insurance Co., 177 So.2d 52 (Fla. 2d DCA 1965). The rationale derives from the fact that punitive damages are imposed as punishment. Northwestern National Casualty Co. v. McNulty, 307 F.2d 432 (5th Cir. 1962). The Florida Patient’s Compensation Fund, technically, is not an insurer; it is a nonprofit fund designed for the benefit of the public. The fund is responsible to the legislature, which determines the amount of fees it may receive. The fund exercises no choice in the acceptance of a risk or of a member. Despite the differences between the fund and private insurers, no valid reason exists to deny fund members the same benefit that inures to private insurers — the avoidance of liability for punitive damages. McNulty; Perez v. Otero, 415 So.2d 101 (Fla. 3d DCA 1982); Nicholson. The assessment of punitive damages against the fund would force innocent fund members to share the punishment for the wrongful acts of a single member, a result we reject as a matter of public policy.

We find no problem with the award of punitive damages against Mercy Hospital, predicated upon its own wrongful conduct, Prosser, The Law of Torts, p. 12 (4th ed. 1971), although corporate responsibility based upon vicarious liability has been disapproved. Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981). Corporate status may not be used to shield a wrongdoer from punishment.

Turning to the question of the significance of chapter 82-263, Laws of Florida, amending section 768.54(2)(b), Florida Statutes (1981), effective subsequent to the institution of these proceedings, we conclude that the amendment provides persuasive evidence of the legislative intent applicable to the original statute. Sheriff, Washoe County v. Smith, 91 Nev. 729, 542 P.2d 440 (1975). In State ex rel. Szabo Food Services, Inc. v. Dickinson, 286 So.2d 529, 531 (Fla.1973), the court observed:

When the Legislature reenacts a statute, it is presumed to know and adopt the construction placed thereon by the State tax administrators. The mere change of language does not necessarily indicate an intent to change the law for the intent may be to clarify what was doubtful and to safeguard against misapprehension as to existing law. The language of the amendment in 1971 was intended to make the statute correspond to what had previously been supposed or assumed to be the law. The circumstances here are such that the Legislature merely intended to clarify its original intention rather than change the law. It should be noted that this change was made before the case had arisen requiring a construction of the statute, (citations omitted).

Our decision rests on a firm foundation: the preamble to the statute, the purpose of the fund as expressed in its title, the absence of decisions construing the law, and the fact that section 768.54 was subject to sunset review when reenacted.

[T]he time and circumstances surrounding the enactment of the amendment may indicate that the change wrought by the amendment was formal only — that the legislature intended merely to interpret the original act. If such is the case, the matter in the amendatory act may be looked to in order to determine what rights existed under the original act. (footnote omitted).

Sutherland Statutory Construction § 22.30 (Sands rev. 1972). The 1982 amendment clarifies, but does not change, the import of the original statute. It defines the legislative intent that punitive damages may not be made a fund obligation.

In the long run, whether the fund or the hospital is required to pay punitive damages, the ultimate burden will belong to the consumer in the form of increased costs. It is our expectation that, by requiring the health care provider to pay its own punitive damages, we will achieve the desired deterrent effect and that extra precautions will be taken to avoid punitive damage judgments.

For these reasons, we reverse the final judgment entered by the trial court only to the extent that it requires the fund to pay punitive damages awarded against Mercy Hospital. We remand the cause for the entry of an amended final judgment awarding punitive damages against Mercy Hospital.

Reversed and remanded with directions.

      . Prior to trial, Mosely settled his claim against the manufacturer. After trial, he negotiated settlements with other defendants.

      . The jury found Dr. Castillo and Mercy Hospital guilty of negligence. It awarded $220,000 in compensatory damages against the doctor, the hospital, and the fund and assessed $750,000 in punitive damages against Mercy Hospital. In the amended final judgment, the trial court entered the $750,000 punitive damage award as an obligation of the fund.

      . The amendment states:
      The fund shall not be responsible for payment of punitive damages awarded for actual or direct negligence of the health care provider member. The health care provider shall have the same responsibility for punitive damages it would have if it were not a member of the fund.

      . WHEREAS, the cost of purchasing medical professional liability insurance for doctors and other health care providers has skyrocketed in the past few months; and
      WHEREAS, it is not uncommon to find physicians in high-risk categories paying premiums in excess of $20,000 annually; and
      WHEREAS, the consumer ultimately must bear the financial burdens created by the high cost of insurance; and
      WHEREAS, without some legislative relief, doctors will be forced to curtail their practices, retire, or practice defensive medicine at increased cost to the citizens of Florida; and WHEREAS, the problem has reached crisis proportion in Florida ....
      Ch. 75-9, Laws of Fla.

      . Florida Patient’s Compensation Fund.


text:
    Orlando CHOMAR and Betty Chomar, his wife, Appellants, v. TROPICANADA CORPORATION, d/b/a Beacharbour Resort Hotel, Appellee.
    No. 81-2101.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1982.
    Rehearing Denied Oct. 8, 1982.

      Magill, Reid, Kuvin & Lewis and Fred Lewis, Genden & Bach, Miami, for appellants.
    Worley & Harnage and Henry Harnage, Worley & Gautier, Miami, for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

The trial court correctly set aside the jury verdict and entered judgment in accordance with the appellee’s prior motion for directed verdict when the only evidence as to the alleged slippery condition of the stairway, testimony by appellants’ expert witness, was stricken when it was discovered that the expert’s friction coefficient tests were conducted on the wrong stairwell. Stirling v. Sapp, 229 So.2d 850 (Fla.1969); Conn v. Seawind Enterprises, Inc., 406 So.2d 104 (Fla. 3d DCA 1981); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla.1979); Wirt v. Fontainbleau Hotel Corp., Inc., 306 So.2d 547 (Fla. 3d DCA 1974), cert. denied, 316 So.2d 288 (Fla.1975); Partelow v. Edgar, 219 So.2d 72 (Fla. 4th DCA), cert. denied, 225 So.2d 539 (Fla.1969); Stolmaker v. Bowerman, 100 So.2d 659 (Fla. 3d DCA 1958).

In light of our disposition, the cross-appeal as to denial of the motion for new trial is dismissed.

Affirmed.


author: NESBITT, Judge.

text:
    REBHAN LEASING CORPORATION, f/k/a Trail Leasing Corporation, Chrysler Corporation, Drac Chrysler Motors Corporation, and Chrysler Leasing Corporation, Appellants, v. Miriam TRIAS, Flamingo Tours and Travel Agency, Inc. and Lumbermens Mutual Casualty Company, Appellees.
    No. 81-2732.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.
    Rehearing Denied Oct. 8, 1982.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and Diane H. Tutt, Miami, for appellants.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy & Graham and Richard A. Sherman, Miami, for appellees.
    Before NESBITT, BASKIN and PEARSON, DANIEL, JJ.
   NESBITT, Judge.

This is an appeal from the dismissal of a cross-claim for indemnification. The original plaintiff brought suit against ten defendants as a result of injuries she received when a van in which she was a passenger blew a tire and became involved in an accident. The defendants included the owners of the vehicle (appellants), and the lessee, driver, and tire manufacturer (appellees). Several of the defendants filed cross-claims and counterclaims. Ultimately, the appel-lees, as active tortfeasors, settled with the plaintiff, at which time the appellants’ cross-claims against the appellees for indemnification and contribution were dismissed. The plaintiff procured a judgment against one of the owners, DRAC Chrysler Corp., based on its vicarious responsibility pursuant to the Florida dangerous instrumentality doctrine. The owners appeal from the dismissal of their claim for indemnification. We reverse.

The law is well-settled that one who is only vicariously liable is entitled to indemnification from the active tortfeasors. Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Hertz Corporation v. Richards, 224 So.2d 784 (Fla. 3d DCA 1969). The fact that the active tortfeasors settled with the plaintiff does not release them from the claim for indemnification by the party held vicariously liable. Elier and Company v. Morgan, 393 So.2d 580 (Fla. 1st DCA), pet. for review denied, 399 So.2d 1141 (Fla.1981); Hertz Corporation v. Hellene, 140 So.2d 73 (Fla. 2d DCA 1962).

We reject the appellees’ contention that payment of the maximum amount of insurance under their policy defeats the owner’s claim for indemnification. This argument confuses insurance coverage with the right to indemnification. In Insurance Company of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149, 1153 (Fla.1977), the court held:

[T]he law requires motor vehicle owners to provide liability insurance coverage for the operation of their motor vehicles on the highways of this state. Independent of this insurance requirement is the common law obligation of vehicle owners under the dangerous instrumentality doctrine. But neither of these financial responsibility principles bear on ... the right of indemnification which derives from the common law principle that fault attracts primary responsibility.

The owner of a vehicle is entitled to common law indemnity from his permittee except where the lease provides that insurance will be provided by the lessor to the lessee. Truck Discount Corporation v. Serrano, 362 So.2d 340, 343 (Fla. 1st DCA 1978); Morse Auto Rentals, Inc. v. Lewis, 161 So.2d 235 (Fla. 3d DCA 1964).

Consequently, the order of the lower court is reversed and remanded with directions to reinstate the appellants’ cross-claim for indemnification.

      . Chrysler Corporation, DRAC Chrysler, Chrysler Leasing, Rebhan Leasing Corporation, and their insurer, Continental Insurance Company.

      . Flamingo Tours, and its insurer, Lumbermen’s Mutual Casualty Company, Miriam Trias, and General Tire and Rubber Company, and its insurer, Liberty Mutual Insurance Company.

      . The appellants admit that their claim for contribution was properly dismissed. § 768.-31(5)(b), Fla.Stat. (1977); Seaboard Coast Line Railroad v. Gordon, 328 So.2d 206 (Fla. 1st DCA 1976).


author: BERANEK, Judge.

text:
    Rufus Earl HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 81-2144.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Rehearing Denied Oct. 6, 1982.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Appellant raises four points on appeal in seeking reversal of his conviction and sentence. We find these arguments meritless except for the point on retention of jurisdiction. Appellant was convicted of four counts of robbery and sentenced to a total of 120 years. The court retained jurisdiction over the first third of this 120-year sentence without stating with particularity the justification for retaining jurisdiction. At the sentencing hearing, the State was requested to submit an order detailing the justification for retention of jurisdiction. Although the State Attorney agreed to prepare the order, it is not present in the file and was apparently never submitted to the court for signature. Section 947.16(3)(a), Florida Statutes (1981), clearly requires a specific justification. The statute provides as follows:

In retaining jurisdiction for the purposes of this act, the trial court judge shall state the justification with individual particularity, and said justification shall be made a part of the order.

Thus, we remand to the trial court with instructions to either relinquish jurisdiction over the first third of the sentence or state with individual particularity the justification for retaining jurisdiction. See Oliver v. State, 414 So.2d 1087 (Fla. 2d DCA 1982). The conviction is affirmed and the matter remanded for further sentencing procedures.

AFFIRMED AND REMANDED.

DOWNEY and ANSTEAD, JJ., concur.


author: ROBERT P. SMITH, Jr., Chief Judge. SHIVERS, Judge,

text:
    Vicki Elaine LISENBY, Appellant, v. Curtis Leon LISENBY, Appellee.
    No. AL-248.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1982.
    Rehearing Denied Oct. 1, 1982.

      James H. White, Jr., Law Offices of Robert B. Staats, P. A., Panama City, for appellant.
    William E. Harris, of Johnston, Harris & Gerde, Panama City, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

The mother appeals from the circuit court’s order entered in March 1982 modifying the final dissolution judgment, entered in 1977, to change custody of the parties’ eight-year-old daughter from the mother to the father. In the order changing custody the circuit judge found only that “it is in the best interest of the child” that custody be changed from the mother, who had custody five years, to the father.

There being no elaboration of this finding in the order, we have examined the record for substantial competent evidence supporting, on any conceivable ground, this change in custodial arrangements. We find no evidence having that effect. Although the mother and daughter lived with another man for some eighteen months after the divorce, and the mother subsequently had sexual relations with a new boyfriend whom she married shortly before the hearing, there is no evidence of extramarital sexual activity in the presence of the child or of a substantial change in the child’s living conditions that in fact adversely affected the child, who has a normal loving relationship with her mother. The substantial evidence required for a change of custody once decreed, as distinguished from that necessary to move the judge’s discretion in the first instance, is simply not present. Culpepper v. Culpepper, 408 So.2d 782 (Fla. 2d DCA 1982).

The appellant mother’s brief reveals that the testimony of one witness, operator of the day care center where the child stayed during the mother’s working hours, was not reported and so not transcribed and included in the record. Appellant represents that the subject of this testimony was appellant’s tardiness several times, up to an hour, in picking the child up from the center. The appellee father’s brief makes no contention that this missing testimony supplied evidence that the mother’s custody adversely affected the child.

The order removing the child from the mother’s custody is therefore REVERSED, and custody is restored to the mother. Any petition for rehearing will be filed within five days.

THOMPSON, J., concurs.

SHIVERS, J., dissents, with opinion.

SHIVERS, Judge,

dissenting.

I respectfully dissent. The able trial judge’s order comes to us clothed with a presumption of correctness. We do not have a complete record, as some of the testimony was not transcribed and was not stipulated. I do not see how we can reverse the trial judge, who not only heard all of the testimony but observed the witnesses as they testified. However, the trial judge should explicate his finding that the best interest of the child warrants modification. I would remand for this purpose.


author: CURTIS, CLINTON A., Associate Judge.

text:
    Maxwell Owen MONROE, a/k/a Maxwell Owen Munroe, and Karen Gaye Monroe, a/k/a Karen Gaye Munroe, his wife, Appellants, v. Clark APPELTON, Edmund Joseph Walters, and Allan Wilkins, as Committees of the Estate of Clarence Norman Appelton, Appellees.
    No. 81-2521.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1982.
    John Turnbull and Milton D. Jones, Clearwater, for appellants.
    R. Timothy Peters of Goza, Hall & Peters, Clearwater, for appellees.
   CURTIS, CLINTON A., Associate Judge.

Appellants, the Monroes, are appealing a final summary judgment which awarded $100,000 to appellees. They contend the trial court erred in determining there was no genuine issue of fact as to the pleading issues and in granting appellees’ motion for summary judgment. We agree and reverse.

In November 1977 the Monroes received $100,000 from Clarence Appelton, Mrs. Monroe’s uncle. There was no note or mortgage given in return for the money. On May 21,1978, the Monroes executed and delivered two letters, which referred to the money as “loaned” for the down payment on a motel in Clearwater Beach, Florida, to Mr. Appelton. Each letter stated that “[Repayment of loan to be discussed and agreed upon between my Uncle Mr. C. N. Appelton and Niece Karen G. Monroe.”

In January 1981 appellees filed an amended complaint alleging that appellants owed $100,000 for money loaned to them in November of 1977. The appellants’ answer denied that there was ever a loan. At her deposition, Mrs. Monroe testified that her uncle wanted the Monroes to buy a motel on Clearwater Beach. She testified that Mr. Appelton put up $100,000 to complete a cash purchase of the motel. Her deposition clearly stated that the money was a gift from her uncle which was not to be repaid. She stated that the two letters of May 21 were written at her uncle’s request in order to assist him with a Canadian gift tax problem. She also named other parties that could substantiate her testimony that the money was a gift. Mr. Monroe’s deposition supported this testimony. However, there was no written evidence which would show that the money was a gift.

On August 21, 1981, appellees filed their motion for summary judgment. Attached to the motion was an affidavit of E. J. Walters (Mr. Appelton’s Canadian attorney) and a copy of the two letters signed by the Monroes. Walters’ affidavit stated that he had received the May 21 letters and that Mrs. Monroe had acknowledged a debt to Mr. Appelton when she spoke to Walters over the phone. The Monroes’ affidavits were filed in opposition to the motion for summary judgment.

After hearing on the motion for summary judgment, final judgment was entered awarding $100,000 to appellees. This appeal ensued.

The question before us is whether there was a genuine issue of fact in the pleadings before the lower court. We think so, and reverse. It is well settled that a summary judgment is not a substitute for a trial and caution should be exercised in foreclosing a party from the benefit of a trial. The function of the court in passing on a motion for summary judgment is simply to determine whether a genuine issue exists and whether such issue is material; it does not determine the issue. Ham v. Heintzelman’s Ford, Inc., 256 So.2d 264 (Fla. 4th DCA 1971). A party should not be deprived of his full day in court by summary proceedings if the record indicates that he has a bona fide potential cause of action or defense. Beckerman v. Greenbaum, 347 So.2d 141 (Fla. 2d DCA 1977).

In the proceedings below the appel-lees contended that the parol evidence rule precluded consideration of Mrs. Monroe’s claim that her uncle advanced the money to her as a gift and it was not intended as a loan. She testified that the writings describing the transaction as a loan were prepared to assist her uncle in solving a gift tax problem. According to her, neither party intended a loan, and the writing was not intended to be a valid contract. Parol evidence is admissible to determine if a writing is intended to create a binding obligation. Until a writing is proved to be a valid and binding obligation between the parties, the parol evidence rule is not applicable. Deal Farms, Inc. v. Farm & Ranch Supply, Inc., 382 So.2d 888 (Fla. 1st DCA 1980).

The pleadings and affidavits in the instant case form a simple issue— whether the $100,000 advanced in November 1977 was a gift or a loan. The appel-lees have failed to carry their burden of showing conclusively the absence of any genuine issue of material fact. See Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977). Where affidavits submitted pursuant to a motion for summary judgment show that there is a genuine issue of material fact, the court may and should look beyond the issues presented in the pleadings. Beckerman v. Greenbaum.

We hold that the question of whether the $100,000 was a gift or a loan presented a genuine issue of material fact, and summary judgment should not have been entered. Therefore, we reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

CAMPBELL, A.C.J., and SCHOON-OVER, J., concur.


text:
    James Daniel BURCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 82-707.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1982.
    E. Summers Sheffey, Dade City, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We strike from the conditions of defendant’s probation condition # 12, which states that the defendant “[m]ust not father any children during probation period.” See Rodriguez v. State, 878 So.2d 7 (Fla. 2d DCA 1979). Otherwise, we affirm the defendant’s conviction and sentences.

SCHEB, A. C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


author: SHIVERS, Judge. WENTWORTH, Judge,

text:
    Gary PIRES, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. AF-213.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1982.

      Sharon Ehrenreich and John D. Middleton, of Wolbert, Saxon & Middleton, Gainesville, for appellant.
    Jim Smith, Atty. Gen., and Leonard George, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Pires appeals the trial court’s order denying his petition for writ of habeas corpus by which he sought review of a disciplinary proceeding which resulted in loss of gain time, confinement and a transfer from the Union Correctional Institute to Florida State Prison. Appellant asserts the lower court erred in holding the Securities of Communications Act, Chapter 934, does not apply to prison inmates. We affirm.

The stipulated facts indicate Pires, an inmate in Union Correctional Institute, placed a telephone call to a person not incarcerated. The conversation was monitored by a Department of Corrections officer. No warrant was issued for the wiretap. As a result of information gained by the wiretap, Pires was found guilty of a disciplinary breach. The record also demonstrates the telephone call was made in an effort to arrange an escape.

Appellant relies heavily on State v. Tsavaris, 394 So.2d 418 (Fla.1981), in which the court stated:

While the federal wiretapping legislation envisions that one’s right to privacy must be subordinate to law enforcement interests when one party consents to the interception of a conversation, “[t]he [Florida] Legislature has determined as a matter of state public policy that the right of any caller to the privacy of his conversation is of greater societal value than the interest served by permitting eavesdropping or wiretapping.” State v. Walls, 356 So.2d at 296 (quoting from Markham v. Markham, 265 So.2d 59 (Fla. 1st DCA 1972), affirmed, 272 So.2d 813 (1973)). Hence, the Florida act evinces a greater concern for the protection of one’s privacy interests in a conversation than does the federal act.

Id., at 422. Although the cited portion of Tsavaris emphasizes the legislature’s concern for privacy interests in telephonic communications, the language clearly demonstrates the issue calls for a weighing of a party’s interests in privacy against the “societal interests served by permitting eavesdropping or wiretapping.” We find that societal interests of maintaining custody over prisoners significantly outweighs the individual prisoner’s interests in the privacy of his telephonic communications. Accordingly, we hold there is an exception to the Security of Communications Act permitting prison officials to wiretap telephone calls from prisoners incarcerated in our prisons.

This position is consistent with the federal view. In United States v. Paul, 614 F.2d 115 (6th Cir. 1980), the court construed the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510, et seq., to include an exception permitting jail officials to wiretap conversations between prisoners and visitors, although the statute contained no specific exception. The court noted that a monitoring took place within the ordinary course of the correctional officer’s statutory duties. 18 U.S.C. § 2510(5)(a). Florida correctional officers are also burdened with supervisory obligations. Section 945.04, Fla.Stat. (1979) provides: “[t]he Department of Corrections shall be responsible for the inmates and for the operation of, and shall have supervisory and protective care, custody, and control of, all buildings, grounds, property of, and matters connected with, the correctional system.

Although appellant is correct there was no evidence the Department posted a notice of intent to wiretap as there was in Paul, this lack of notice does not compel a different result. In United States v. Hearst, 563 F.2d 1331, 1345 (9th Cir. 1977), the court stated: “An intrusion by jail officials pursuant to a rule or policy with a justified purpose of imprisonment or prison security is not violative of the Fourth Amendment.” The Florida Legislature has clearly set forth a policy placing inmates in the custody and under the control of the Department of Corrections. The surveillance here was done within the scope of the Department’s duty to maintain a secure correctional facility. Accordingly, the order below is AFFIRMED.

ERVIN, J., concurs.

WENTWORTH, J., dissents; with opinion.

WENTWORTH, Judge,

dissenting.

I respectfully dissent because the decisions cited by the majority do not appear to me to be authority for creating an exception not indicated by the terms of the Florida Security of Communications Act, or for permitting indiscriminate wiretaps to obtain evidence in a custodial situation. Even assuming appellant’s use of a pay telephone, in the circumstances presented, could have been conditioned on consent to a monitor, no such notice has been asserted. I would reverse.