author: ORFINGER, Chief Judge.

text:
    UNITED STATES of America, Appellant, v. CENTURY FEDERAL SAVINGS AND LOAN ASSOCIATION OF ORMOND BEACH, a corporation existing under the laws of the United States of America, et al., Appellees.
    No. 81-444.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 1982.

      Gary L. Betz, U.S. Atty., and Wilbur V. Chaney, Asst. U.S. Atty., Orlando, for appellant.
    Roger J. McDonald of Butler & McDonald, Orlando, for appellee ITT Diversified Credit Corp.
    Louis Ossinsky, Jr. of Ossinsky, Krol & Hess, Daytona Beach, for appellee Halifax Nat. Bank of Port Orange.
    No appearance for appellee Century Federal Sav. and Loan Ass’n.
   ORFINGER, Chief Judge.

The holder of a valid second mortgage appeals from an order of the trial court ordering excess proceeds (resulting from the sale of the mortgaged property following foreclosure of the first mortgage) distributed to a third and fourth mortgagee, and holding that the second mortgagee had forfeited its claim. We reverse.

Century Federal Savings and Loan Association (Century) filed an action to foreclose its first mortgage. It listed the following as having inferior liens or claims, and the dates of the recording of the respective claims, viz: Small Business Administration (SBA), March 22, 1976; Borg-Warner Acceptance Corp. (Borg-Warner), May 11, 1977, and May 24, 1977; ITT Diversified Credit Corp. (ITT), October 24, 1977; Lawrence Borns, November 2, 1977; Halifax National Bank (Halifax), July 10, 1978.

The United States of America answered for the SBA, asserting its statutory right of redemption under 28 U.S.C., section 2410(c), attached a copy of its note and mortgage on the subject property, and alleged that as of April 24, 1980, there was a balance due of $16,008.16, principal and interest, with interest accruing at the rate of $2.80 per day thereafter. No party controverted this allegation. It requested a right to participate in any excess proceeds. Halifax and Borg-Warner defaulted. ITT answered, requesting participation in any excess proceeds. Borns answered, asserting that he held a valid mortgage and claiming no knowledge of any of the remaining allegations.

Following the sale of the property under the terms of the final judgment foreclosing the first mortgage, Halifax filed a motion requesting leave to intervene, claiming that it now held the third mortgage by virtue of assignment from Borg-Warner, that its mortgage was inferior only to the second mortgage held by SBA, and that it was entitled to whatever remained after payment of the second mortgage. Halifax also filed a motion to disburse proceeds, requesting that the excess proceeds be distributed first to SBA in the amount of $19,965.47 and the balance to it.

ITT filed a written objection to Halifax’ motion to intervene, alleging that Borg-Warner had defaulted earlier and that its assignee should not now be heard (and that Halifax itself had defaulted); that SBA held the second mortgage with a balance as of January 6, 1981, of $16,964.27; that the excess proceeds should be used to first satisfy the SBA and that any excess thereafter should go to ITT. It then requested an order on disbursing proceeds and called the motion up for hearing.

In the order appealed from, the trial court allowed the intervention by Halifax and corrected a minor mathematical error in the amount found due to the first mortgagee. It then found that the mortgage liens and their priorities were as follows: (i) first mortgage — Century Federal Savings & Loan Association; (ii) second mortgage, United States of America through SBA; (iii) Halifax National Bank, as assignee of Borg-Warner; (iv) ITT. It held that the liens of the subordinate mortgages transferred to the excess proceeds “in accordance with the respective priorities of said mortgages as a result of the mortgage foreclosure sale and that said excess proceeds should be disbursed in accordance therewith.” However, the order then denied the United States of America any right to participate in the proceeds because “no proof or claim to any part of the excess proceeds has been filed by the United States of America or the Small Business Administration and on account thereof, it is not entitled to participate in the excess proceeds.” The court thus ordered that the excess proceeds be distributed first to Century to correct the computational error, then to Halifax and then to ITT. A motion to reconsider was denied, and the United States appeals.

In answering the original complaint, the United States (for the SBA) had asserted its second priority and stated the amount of its claim and the accrual thereon. None of the contesting parties denied the priority of the United States or the amount of its mortgage balance. In fact, both Halifax and ITT, who were the real contestants, admitted the amount of the SBA mortgage balance. There is nothing in the record that would have put appellant on notice of the necessity of presenting further proof of its claim at the hearing, nor in fact, is there any notice that proofs would be required or presented at the hearing.

The parties to an action are bound by the allegations in their pleadings and any admissions made in the pleadings are accepted as facts without the necessity of any supporting evidence. Carnell v. Kinsey, 87 So.2d 577 (Fla. 1956); Fernandez v. Valle, 364 So.2d 835 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 457 (Fla. 1979); Freeman v. Holland, 122 So.2d 791 (Fla. 1st DCA 1960). The pleadings of appellees Halifax and ITT established, without the need for any further proof by appellant, that appellant held the second mortgage, that appellant’s claim should be satisfied prior to any of the other outstanding claims, and that the amount due appellant was not less than $16,964.27. If the court felt the need for formal proof, proper notice and an opportunity to be heard should have been given. The only notice of hearing was by ITT on its opposition to Halifax’s motion to intervene, and to disburse proceeds. Both ITT and Halifax conceded an almost identical balance due SBA. They were the only contestants and their admissions are binding on them. The only dispute raised by their pleadings was which of them came next after SBA.

Appellees also argue that the trial court’s decision should be affirmed because appellant’s right of redemption provided an equitable basis for arriving at a different order of payment. Appellees quote as follows from the case of Waybright v. Turner, 129 Fla. 310, 176 So. 424, 428 (Fla. 1937), to support this proposition:

“In determining who is entitled to surplus proceeds arising in a foreclosure sale, it is the general rule that all incumbrances on mortgaged premises inferior to the mortgage on which the sale is based, must be paid in the order of time in which they respectively became liens, except as some equitable right demands a different order of payment.”

However, the Waybright court found no such equitable circumstances and held the second mortgagee entitled to share in the surplus. Moreover, the case did not involve any issues analogous to those in the case before us.

No authority has been cited dealing with the question of whether or not a trial court may deny a second mortgagee’s claim and give subordinate mortgagees priority because the second mortgagee has a right of redemption. Neither has our independent research revealed any such authority. However, the Florida Supreme Court has held that a second mortgagee, in a proceeding for surplus proceeds, is not required to release his claim in favor of subsequent mortgagees merely because the debt is adequately secured and his claim could be satisfied from other property on which the mortgage is also a lien. Coombes v. Wheeler, 131 Fla. 593, 179 So. 785 (Fla. 1938). Appellees’ argument in the instant case is analagous in that it would deprive appellant of its right to share in the surplus merely because there was a possible alternative method by which it could satisfy its claim. Appellant’s otherwise valid right to share in the mortgage proceeds is not affected by its statutory right of redemption.

The order on surplus proceeds of sale is reversed for further proceedings consistent herewith.

REVERSED.

FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.

      . The prayer of Halifax’ motion read:
      WHEREFORE, Movant prays for the entry of an Order directing disbursement of the excess proceeds not disposed of by the provisions of the Final Judgment by paying those sums due to Small Business Administration of $16,965.47, and those sums due to HALIFAX NATIONAL BANK OF PORT ORANGE in the amount of $12,400.36.

      . The prayer of ITT’s motion read:
      The sale proceeds at the foreclosure sale should first be used to satisfy the cost of the sale, then satisfy the Plaintiff, then the United States of America since they have in fact answered and defended their position, then this movant since it likewise has answered and defended its position and specifically requested to participate in excess proceeds. Borg-Warner having failed to answer and has suffered a default cannot be heard to come in after final judgment and after foreclosure sale to participate in excess proceeds.

      . Neither of these orders has been appealed and are thus not considered.


source: Caselaw Access Project

author: SHARP, Judge.

license: Public Domain

text:
    Nora N. NICHOLS, Appellant, v. William R. NICHOLS, Appellee.
    No. 81-567.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 1982.

      Jeannette M. Haag, of Haag & Haag, Inverness, for appellant.
    Louis Ossinsky, Jr., of Ossinsky & Krol, Daytona Beach, for appellee.
   SHARP, Judge.

The wife, Nora N. Nichols, brings a timely appeal from the trial court’s final order awarding her rehabilitative alimony and denying her request for attorney’s fees. We find that permanent alimony and attorney’s fees should have been awarded to the wife in this cause.

The parties were married for twenty-nine years. Nora is a high school graduate. She worked in a factory prior to marriage, but she did not work outside the home after she married. William, the husband, works in consulting engineering in nuclear power. Over the years the parties moved several times to accomodate William’s career. Each move meant a promotion and raise for him, and a comfortable lifestyle for the family. The parties had four children, several of whom had mild to serious medical problems over the years which required much of Nora’s time and attention. The sixteen year old son still living at home with Nora is a juvenile diabetic.

The parties separated in late 1978, and the original Petition for Dissolution in this matter was filed in February 1979. The order granting dissolution was entered October 27, 1980, and the order on appeal was entered April 2, 1981. The interim periods were filled with protracted legal proceedings, including the wife’s several and usually unsuccessful attempts to get the court to enter a temporary support order.

After the separation and during the early course of the proceedings, William voluntarily gave Nora six hundred dollars ($600) per month, and he paid various bills, such as the mortgage, phone, utilities, automobile expenses, and medical expenses for the son. Because William acted voluntarily, the judge refused to enter a temporary support order prior to the order granting dissolution. There is substantial testimony that the marital home was sold and the proceeds invested in another home for Nora with William’s consent.

William was in his early fifties at the time of the dissolution. There was no testimony regarding his health. At the time of the final order on support, etc., he was remarried. He owned a few thousand dollars worth of his employer’s company stock which he received as part of his compensation. William’s salary progressed from thirty thousand one hundred thirty-two dollars ($30,132) in 1977, to thirty-six thousand three hundred dollars ($36,300) in 1980.

Nora suffers various emotional and physical disabilities such as borderline diabeties, depression, anxiety, high blood pressure, arthritis, and a hiatal hernia which interferes with breathing and swallowing. She has been hospitalized several times since 1978 for nervous, emotional and physical traumas. Nora was fifty years old at the time of the dissolution. She made applications for employment at various businesses since the dissolution proceedings began, with little luck. At the time of the final hearing she was working eight hours a week as a motel maid earning the minimum wage. Nora has no marketable skills or savings.

In the order dissolving the marriage, the court entered a temporary support order for alimony and child support in the amount of seven hundred twenty-five dollars ($725) per month, plus payment of a few specific bills. In its final order the court awarded the wife custody of the son and two hundred fifty dollars ($250) per month child support, William’s interest in the marital home as lump sum alimony, William’s interest in the wife’s car as lump sum alimony, and four hundred dollars ($400) per month rehabilitative alimony for three years. The court granted the husband Nora’s interest in his car and required him to pay the remaining installments due on her car. The court reserved jurisdiction over child custody and support and attorney’s fees. The court ultimately granted half of the wife’s allowable costs, but it denied the wife’s application for attorney’s fees.

In awarding Nora rehabilitative alimony, the order indicated the court was taking

into consideration that the husband has already been paying rehabilitative alimony since November of 1978 and the Court is considering the total rehabilitative alimony to the wife in this matter as being in excess of five (5) years and three (3) months.

The court’s classification of the prior support payments as rehabilitative alimony is unsupported by case law. Temporary support payments are not usually classified as rehabilitative or permanent. But, more importantly, the trial court’s award of rehabilitative rather than permanent alimony was erroneous.

The facts in this case are similar to those in this court’s recent decision in Holland v. Holland, 406 So.2d 496 (Fla. 5th DCA 1981). In Holland the wife was forty-three and had a tenth grade education. She had been a telegram clerk prior to her marriage of sixteen years. At the time of the dissolution she had no marketable skills and she had some minor health problems. The wife also cared for the parties’ eleven year old daughter. Since there was no showing of any potential of actual capacity for self-support on the part of the wife, this court concluded it was error for the lower court to award rehabilitative rather than permanent alimony. Other districts have held permanent alimony was appropriate on similar facts. See McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977) and Sullivan v. Sullivan, 363 So.2d 393 (Fla. 2d DCA 1978). It strains reason to argue that a woman with Nora's marital history, who has recently become employed at the minimum wage as a part-time motel maid, has embarked on a new and promising career and will thereby become fully capable of self-support. See McAllister v. McAllister, 345 So.2d at 355.

A person is not self-supporting simply because he or she has a job and income. The standard of living must be compared with the standard established during the course of the marriage. A divorced wife is entitled to live in a manner reasonably commensurate with the standard established by the husband during the course of a long term marriage. [Citation deleted]. A court must base an award of alimony to a wife upon the ability of her husband to pay that award and her financial needs in light of the standard of living she enjoyed during the marriage.

O’Neal v. O’Neal, 410 So.2d 1369, 1371 (Fla. 5th DCA 1982).

William Nichols’ ability to pay permanent alimony has been established through evidence of his salary and his past regular support payments. Only permanent alimony can sustain Nora in the manner reasonably commensurate with the standard William set during their long term marriage. Under Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), the trial court’s award of rehabilitative rather than permanent alimony in this case was unreasonable and an abuse of discretion. Therefore, we modify the final judgment by changing the rehabilitative award to permanent alimony.

The wife claims the amount of the award of alimony was insufficient. The October 1980 temporary order required William to pay seven hundred twenty-five dollars ($725) per month, plus a few bills. Nora testified at the later hearing on support that she needed two hundred fifty dollars ($250) per month to care for the child. In its final order the court ordered William to pay two hundred fifty dollars ($250) per month as child support and four hundred dollars ($400) per month as alimony. The evidence shows Nora is not actually burdened with the mortgage payment on her house. William was ordered to make the remaining payments due on her car, and the evidence shows he intended to keep the child on his health insurance policy. Appellant argues it was error to reduce the total cash support by seventy-five dollars ($75), from seven hundred twenty-five dollars ($725) per month to six hundred fifty dollars ($650) per month. The reduction in the total amount of support paid is not large (10%), and, in view of all of the circumstances, reasonable persons could differ as to the correctness of the trial court’s decision. Therefore, the amount of alimony awarded is affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

Finally, Nora argues that the lower court’s denial of her request for attorney’s fees was erroneous. The Supreme Court said in Canakaris that the purpose of section 61.16, Florida Statutes (1981), permitting an award of attorney’s fees, is to ensure that “both parties will have similar ability to secure competent legal counsel.” Canakaris v. Canakaris, 382 So.2d at 1205. There the court found the husband had the superior ability to pay the wife’s attorney’s fees. Similarly, in this case the husband, who has a good, well paying job, has the superior ability to pay Nora’s attorney’s fees. The wife has no liquid assets and a very modest income beyond the alimony and child support awarded her. Clearly she has no resources with which to pay her attorney a reasonable fee. Indeed, it substantially undercuts the public policy espoused in Canakaris to deny a needy spouse attorney’s fees in circumstances such as these. An award of temporary attorney’s fees during the course of the proceedings, as requested by the wife, would have been appropriate. We reverse the denial of attorney’s fees and remand to permit the trial court to enter an appropriate award.

AFFIRMED IN PART, MODIFIED IN PART, AND REMANDED.

ORFINGER, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . See generally, Kirchman v. Kirchman, 389 So.2d 327 (Fla. 5th DCA 1980) (Court defines types of alimony as amounts paid by financially able former spouses to needy former spouses).

      . See also Golden v. Golden, 395 So.2d 1255 (Fla. 1st DCA 1981); Stiff v. Stiff, 395 So.2d 573 (Fla. 2d DCA 1981); Bashaw v. Bashaw, 382 So.2d 1352 (Fla. 4th DCA 1980); Gratton v. Gratton, 358 So.2d 262 (Fla. 3d DCA 1978).


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

text:
    FRANK SILVESTRI, INC., et al., Appellants, v. HILLTOP DEVELOPERS, INC., Appellee.
    No. 81-1184.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 1982.

      James A. Fowler of Fowler, Williams & Airth, P.A., Orlando, for appellants.
    Arthur J. Ranson, III, of Robertson, Williams, Duane, Lewis & Ranson, P.A., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants, the defendants below, appeal from a judgment entered against them for damages arising from the breach of a real estate contract.

Appellee Hilltop Developers initially sued Frank Silvestri, Inc., and Frank Silvestri, individually, claiming damages against them in the alternative. Before trial, Frank Silvestri moved the court to change the name of Frank Silvestri, Inc. to Frank Silvestri Investments, Inc., claiming that the latter was the real party in interest. The court denied this motion but entered an order naming Frank Silvestri, individually, Frank Silvestri, Inc., and Frank Silvestri Investments, Inc., as defendants. The court further ordered that the original complaint be deemed to be a complaint against all three defendants.

After the trial was held, the court entered judgment against all three defendants jointly and severally. We have reviewed the record and have failed to find that Hilltop amended its pleadings to allege joint and several liability. Even if the trial court’s order is viewed as adding Frank Silvestri Investment, Inc., to the complaint, the complaint itself alleged liability only in the alternative. In view of the failure of Hilltop to allege joint and several liability, the judgment against all three defendants was clearly error.

However, because of the confusion in the record, we reject appellants’ suggestion to simply strike the names of Frank Silvestri, individually, and Frank Silvestri, Inc., from the judgment. While we recognize that the closing documents prepared by Hilltop indicate that Frank Silvestri Investments, Inc., was the buyer, the contract was signed by Frank Silvestri whose capacity as an agent or representative of the corporation was not pleaded nor established by Hilltop. Also, the court specifically found in a document styled “Findings” that Frank Silvestri had breached the contract. Nevertheless, the final judgment (which was supposed to incorporate the above findings) found that Frank Silvestri Investments, Inc., had breached the contract. In these circumstances, we cannot determine which party is properly liable.

In addition to the error in imposing joint and several liability, the trial court also erred in awarding damages.

Upon a breach of contract by the buyer on his contract to purchase land, the seller generally has two alternative remedies available: 1) he may sue to compel specific performance and, as an incident to such relief, may be awarded damages for the injuries he has suffered or 2) he may retain the property and sue for breach of contract. Clements v. Leonard, 70 So.2d 840 (Fla. 1954); Miller v. Rolfe, 97 So.2d 132 (Fla. 1st DCA 1957). In the latter instance, the measure of damages is the difference between the price the buyer agreed to pay for the property and the fair market value of the property on the date of the breach. Clements v. Leonard, 70 So.2d at 843. We find no evidence of the fair market value of the property on the date of the breach of contract. Therefore, we also reverse the damages portion of the final judgment and remand for reconsideration in accordance with the principles outlined above.

REVERSED and REMANDED for re-pleading and retrial.

DAUKSCH and COBB, JJ., concur.

      . Hilltop was also awarded substantial damages for maintaining the property after a lis pendens had been filed by appellants in connection with their counterclaim. If a seller has suffered additional damage, he must allege and prove that those damages were contemplated by the parties and were a natural and proximate result of the breach. See Popwell v. Abel, 226 So.2d 418 (Fla. 4th DCA 1969).


author: COWART, Judge.

text:
    Benjamin Robert McALLISTER, Appellant, v. STATE of Florida, Appellee.
    No. 82-367.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 1982.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ON MOTION TO DISMISS

COWART, Judge.

Appellant’s original notice of appeal, filed after judgment and sentence, identifies the orders appealed from as “final orders of finding of guilt by the jury.” A verdict is not appealable. Hannah v. State, 402 So.2d 555 (Fla. 5th DCA 1981); Hancock v. State, 402 So.2d 428 (Fla. 5th DCA 1981); Burkett v. State, 400 So.2d 138 (Fla. 5th DCA 1981); Smith v. State, 395 So.2d 575 (Fla. 5th DCA 1981). Since the appeal was from a non-appealable order, this court has no jurisdiction of the appeal.

Appellant’s “amended notice of appeal,” which identifies the judgment and sentence as the orders appealed from, cannot vest this court with jurisdiction because it was filed more than thirty days after sentencing. Fla. R. App. P. 9.140(b)(2).

The State’s motion to dismiss is granted and the cause is hereby DISMISSED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: SHIVERS, Judge.

text:
    Thomas R. "Blue" FULFORD, et al., Appellants, v. D. Robert GRAHAM, Governor; George Firestone, Secretary of State; Jim Smith, Attorney General; Gerald A. Lewis, Comptroller; Bill Gunter, Treasurer; Doyle Conner, Commissioner of Agriculture; Ralph D. Turlington, Commissioner of Education, as and constituting the State of Florida Board of Natural Resources; Elton Gissendanner and John J. Brown; Braden River Civic Association, Inc., et al., Appellees.
    No. AB-156.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1982.

      Daniel S. Dearing of Dearing & Smith, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., and Bruce Bark-ett, Asst. Atty. Gen., for appellees.
    Ernest S. Marshall, Bradenton, for Bra-den River Civic Ass’n, Inc., et al., interve-nors — appellees and cross/appellants.
    H. William Thompson, Port Charlotte, for Charlotte County, intervenor.
    Robert M. Rhodes and James Hauser of Messer, Rhodes & Vickers, Tallahassee, for Southeastern Fisheries Ass’n, Inc., amicus curiae.
   SHIVERS, Judge.

Appellants are commercial fishermen who either fish with nets in Florida’s salt waters or who navigate through Florida’s salt waters. In their suit they challenged the constitutionality of a number of special and local acts purporting to regulate salt water fishing on a county by county basis. Their suit also sought a declaration that section 370.08(1), Fla. Stat. (Supp. 1978), which makes it unlawful to possess a net in any county where its use is prohibited, is unconstitutional.

Appellants seek review of that part of the trial court’s declaratory judgment holding constitutional the majority of the challenged special and local acts. Cross-appellants Braden River Civic Association, Inc., et al., seek review of that part of the judgment holding unconstitutional section 370.-08(1), and those portions of the special acts which make it unlawful to possess a net in any county where its use is prohibited. The special and local acts, mainly, either restrict the use of nets or restrict the size of nets in certain specific locations.

Appellants contend that the special and local acts, regulating access to marine resources of the state, must be related to conservation of these resources. Appellants insist that if these acts cannot be shown to have a reasonable relationship to conservation of the resource, they are invalid expressions of the police power, violations of substantive due process and impermissible burdens on interstate commerce. Appellants argue that even if the challenged acts do bear a reasonable relationship to conservation, the acts are so vague that they offend notions of due process.

We affirm that portion of the trial court’s order upholding the constitutionality of the challenged special and local acts.

In determining whether an act is unconstitutional, the party asserting the invalidity bears the burden. Village of North Palm Beach v. Mason, 167 So.2d 721 (Fla. 1964). Appellants have not met their burden. Any legislative enactment carries a strong presumption of constitutionality including a rebuttable presumption of the existence of necessary factual support in its provisions; if any state of fact, known or to be assumed, justifies the law, the court’s power of inquiry ends; questions as to the wisdom, need or appropriateness are for the legislature. State v. Bales, 343 So.2d 9 (Fla. 1977).

The evidence adduced at trial, including the general comments of the experts who testified, does not serve as a sufficient basis to declare the acts unconstitutional in light of the presumption of constitutionality.

Regulations governing access to marine resources are not restricted to conservation purposes. Ex parte Powell, 70 Fla. 363, 70 So. 392 (1915). E.g., the purpose may be promotion of tourism (Nash v. Vaughn, 133 Fla. 499, 182 So. 827 (1938)); the purpose may be an economic one (Kenny v. Kirk, 212 So.2d 296 (Fla. 1968), and Tingley v. Brown, 380 So.2d 1289 (Fla. 1980)); the purpose may be in furtherance of public and private recreation (section 376.021(1) and (2), Fla. Stat. (1981)); or the purpose may be for other legitimate state interests related to the general welfare.

In Price v. City of St. Petersburg, 29 So.2d 753 (Fla. 1947), the court upheld a statute which the appellants urged was unconstitutional, not being a conservation measure but a discrimination between different types of net fishermen and hook-and-line fishermen. The court announced the following standard:

The determination of facts upon which the validity or constitutionality of statutes may depend is primarily for the legislature; the general rule being the court will acquiesce in the legislative decision unless it is clearly erroneous, arbitrary, or wholly unwarranted.

Appellants have not shown that these special and local acts are clearly erroneous, arbitrary or wholly unwarranted.

We conclude that the acts do not imper-missibly hinder interstate commerce. Any affecting of interstate or foreign commerce is incidental or indirect and beyond the purposes of the various acts and does not invalidate the acts. See, State v. Millington, 377 So.2d 685 (Fla. 1979).

We find that the regulations and restrictions so enacted are for constitutional purposes. The appellants have not shown they violate substantive due process of law, or that they are invalid expressions of the police power, or that they are unconstitutionally vague. We affirm the trial court’s judgment of constitutionality.

We disagree, though, with the trial court’s decision holding section 370.08(1), Fla. Stat. (Supp. 1978) unconstitutional and reverse that portion of the order holding this general statute invalid. We find that this section 370.08(1) has a legitimate purpose and that it does not represent an unconstitutional restriction on interstate commerce.

Section 370.08(1), Fla. Stat. (Supp. 1978) provides:

Illegal possession of seines and nets. — No person may have in his custody or possession in any county of this state any fishing seine or net, the use of which for fishing purposes in such county is prohibited by law. Such possession shall be evidence of a violation of this subsection by both the owner thereof and the person using or possessing said net. The provisions of this subsection shall not apply to shrimp nets, to pound nets or purse nets when used in taking menhaden fish, to seines used exclusively for taking herring, or to legal beach seines used in the open gulf or Atlantic Ocean if the possession of such nets is not prohibited in the county where found. Violation of this subsection is a misdemeanor of the first degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.

The states have a legitimate interest in regulating the taking of fish, and legislation designed to regulate the fishing industry is an appropriate power to be exercised by the state. See, Nash v. Vaughn, supra. Florida, in particular, has long recognized that the protection and regulation of salt water fishing is an appropriate subject for legislative enactment. Ex parte Powell, supra.

In Lewis v. BT Investment Managers, Inc., 477 U.S. 27, 100 S.Ct. 2009, 64 L.Ed.2d 702 (1980), the Supreme Court noted that where the state enactments imposed only indirect burdens on the free flow of trade, and where the effect is visited equally upon both interstate and local commerce, the statute passes constitutional muster. We find the restrictions imposed by section 370.08(1) and those portions of the special acts which make it unlawful to possess a net in any county where its use is prohibited fall equally on interstate and local commerce. We further find this statute and these special acts are reasonably related to the legitimate state interests of regulating the fishing industry.

Accordingly, we affirm the judgment of the trial court in all respects except insofar as it declares unconstitutional section 370.-08(1), Fla. Stat. (Supp. 1978) and those portions of the special acts which make it unlawful to possess a net in any county where its use is prohibited. We vacate and reverse that portion of the judgment.

AFFIRMED in part and REVERSED in part.

ERVIN and WENTWORTH, JJ., concur.


author: PER CURIAM.

text:
    UNITED STATES FIRE INSURANCE COMPANY, a New York corporation, Appellant, v. Gilbert R. CLARKE and Joseph Lack, d/b/a Lark Flyers, Appellees.
    No. AC-374.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1982.
    Victor M. Halbach, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellant.
    George L. Hudspeth of Mahoney, Hadlow & Adams, Jacksonville, for appellees.
   PER CURIAM.

Appellant appeals an order of summary judgment entered by the trial judge in favor of appellees without any findings of fact to facilitate this court’s review. We reverse.

Lark Flyers owned a Cessna 210 airplane which was insured by appellant. On October 5, 1979, appellees, as lessor, entered into a 12-month “aircraft lease” with Shields Airways, a corporation based at Craig Field. The “aircraft lease” agreement referred to the parties as lessor and lessee and provided, among other things, that lessee had a renewal option; that maintenance, repair, etc., and costs thereof were the lessor responsibility with the right of the lessee, at lessor’s expense, to make any repairs that required immediate attention; that payments from lessee to lessor were to be made “by the 10th day of the month following use month for tach time as used by Shields Aviation at the rate of $36.00 per hour”; that the lease could not be assigned except with the lessor’s consent; that any sale of the aircraft by the lessor would be subject to lessee’s rights under the contract; and that the lessor was responsible for and was to keep insurance against theft, loss, or destruction of aircraft in force at all times naming lessee as an insured party. Upon expiration of the agreement, the aircraft was to be returned to Lark Flyers.

An information sheet revealed that prior to the effective date of the “aircraft lease” agreement, appellees charged per tach time $39.50 for 10 hours or more to $45 for less than five hours. A “flash” on that sheet provided that as of October 6, 1979, the plane would “be managed by Shields Aviation” and that 27 named pilots were to be billed by appellees directly whereas the remainder would pay Shields at the termination of flight.

Shields Airways rented the plane to one Ramos, who had only 165.9 logged pilot hours. Ramos flew the plane to Peter O’Knight Airport, an unsecured airport, and returned four days thereafter to discover it missing. The plane was subsequently located in Progresso, Corozal District, Belize, where it had crashed.

Appellees sought recovery from appellant under insurance policy coverage F, which provides in pertinent part that:

All Risks While Not in Motion. To pay for direct loss of or damage to the aircraft, hereinafter called loss, occurring while the aircraft engine is not operating and while the aircraft is not in motion under its own power or momentum generated therefrom, out of which a collision occurs with any object.

Appellant defended on the grounds, among others, that insured violated exclusion 4(c), exclusion 8(f) and the pilot’s clause. Exclusion 4(c) provides that the insurance policy would not apply “... to any insured ... who operates or permits the aircraft to be operated for ... any purpose other than as specified in the Declarations.” Item 6 of an amendatory endorsement to the declaration permitted the aircraft to be used for “rental to pilots.” The pilot’s clause, however, limited rental to pilots who would “operate the aircraft in flight” to those with at least 500 logged pilot hours.

Exclusion 8(f) provides that the policy does not apply under coverages (f) and (g) if “the airplane is subject to bailment, lease, conditional sale, mortgage or other encumbrance not specifically stated in the Declarations.” It is appellant’s contention that the “lease agreement” between appellees and Shields Airways was a bailment, lease, or other encumbrance not specifically stated in the Declarations, whereas appellees maintain that the agreement was a brokerage or management agreement.

In order to determine whether the insured property was encumbered within the meaning of the policy, the court should look to the circumstances surrounding the execution of the instrument sought to be considered an encumbrance, the situation and acts of the parties involved in the execution of that instrument and the nature of their relationship. The title given to the instrument by the parties is not necessarily conclusive. Its proper characterization depends on the parties’ intention. Because it is uncertain at this stage whether the agreement between Shields Airways and Lark Flyers constituted a brokerage or management agreement, a bailment, or a lease, we conclude that entry of summary judgment was premature.

Even if we assume that the “lease agreement” constituted a brokerage agreement, it would still be necessary for the trial judge to determine whether the interposition of the corporate entity, Shields Airways, was of such a nature as to change or increase the risk assumed by appellant when it issued its policy of insurance to appellees.

Accordingly, the order of summary judgment is reversed and the cause remanded to the trial court for further proceedings consistent with this opinion.

BOOTH, LARRY G. SMITH and SHIVERS, JJ., concur.


text:
    Jeffrey E. BRUCK, Appellant, v. GLEN JOHNSON, INC., Risk Management Services, Inc., and/or Insurance Company of North America, Appellees.
    No. AG-452.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1982.

      Peter N. Meros of Meros, Coit, Edman, Meros, Smith & Meros, St. Petersburg, for appellant.
    Mark E. Hungate of Fowler, White, Gil-len, Boggs, Villareal & Banker, St. Peters-burg, for appellees Glen Johnson, Inc. and Ins. Co. of North America.
    Ivan Matusek, St. Petersburg, for appel-lee Risk Management Services, Inc.
   PER CURIAM.

This cause is before us on appeal and cross-appeal from a workers’ compensation order denying benefits to claimant Jeffrey E. Bruck and granting the claim of carrier Risk Management Services, Inc. (Risk) for reimbursement, attorney fees and costs against carrier Insurance Company of North America (INA). On appeal, claimant contends that the deputy erred in denying his claim on the basis of the “going and coming rule,” and in determining his average weekly wage. On the cross-appeal, carrier INA argues that the deputy further erred in finding that INA had coverage on the day of the subject accident and in awarding attorney fees to cross-appellee Risk. We reverse the denial of Jeffrey Bruck’s claim on the appeal and further reverse the award of attorney fees to Risk on the cross-appeal. However, the award of reimbursement to Risk is affirmed.

Claimant and his brother, Scott Bruck, were both paid by appellee Glen Johnson, Inc. to perform construction work. Scott began work in late January, 1981 as a fire sprinkler fitter. The employer testified that he knew Scott had no transportation but did not know or care how he got to the job site.

Claimant started work on February 9, 1981 as a fire sprinkler fitter’s helper and began driving Scott to work on that date. The uncontroverted testimony was that Scott was claimant’s immediate supervisor and that claimant received all instructions from Scott. Claimant testified that, on the afternoon prior to the February 12, 1981 industrial accident, “Scott told me that he got a call from Bill Chance down at the office and that Bill wanted us to ... go to [the supply] house in the morning.” Accordingly, on the date of the accident, claimant picked Scott up 15 to 20 minutes early so that they could go to the supply house, which was approximately ten miles out of the way, on the way to work. After picking up the parts at approximately 8:00 a.m., claimant and Scott left the supply house to drive to work. Both were injured in an automobile accident which occurred at approximately 8:20 a.m.

Jeffrey Bruck’s subsequent claim for workers’ compensation benefits was denied on the basis of the “coming and going rule.” The deputy accepted the testimony of the employer that the employer never intended to furnish transportation to Jeffrey or Scott, that he never envisioned both claimant and Scott making the trip to the supply house on the morning of the accident, and that he would have asked another employee to go for the supplies if he had known that Scott could not go without claimant. Therefore, the order found that claimant was not in the course or scope of his employment at the time of the accident and was not entitled to benefits for the injury sustained.

The “coming and going rule” generally bars compensation for injuries sustained while an employee is going to or coming from work, on grounds such injuries are “essentially similar to other injuries suffered off duty away from the employer’s premises, and, like those other injuries, are usually not work related.” Eady v. Medical Personnel Pool, 377 So.2d 693, 695 (Fla. 1979). However, an exception to this rule exists where the employee is instructed by the employer to perform a special errand which grows out of and is incidental to his employment. Eady v. Medical Personnel Pool, supra; Moody v. Baxley, 158 Fla. 357, 28 So.2d 325 (1946).

Under the circumstances of this case, we find that the deputy erred in focusing on the employer’s intent to send only Scott Bruck on the special errand, given the uncontroverted evidence that claimant had been instructed to perform an errand by Scott, who even the employer conceded was claimant’s immediate supervisor, and was in the course of performing this errand when the automobile accident occurred. This errand required Jeff to drive approximately ten miles out of the way on his normal route to work and was sufficiently unusual in the context of his normal hours and duties to justify application of the special errand exception in this case. Eady v. Medical Personnel Pool, supra. Accordingly, the denial of Jeffrey Bruck’s claim is reversed and the cause remanded for consideration of his entitlement to workers’ compensation benefits.

The deputy also erred in determining claimant’s average weekly wage on the basis of a 40-hour work week. Where, as here, the “13-week” and “similar-employee” methods of computing full-time average weekly wage are inapplicable, see Sections 440.14(1)(a) and (b), Florida Statutes, an employee’s wages should be calculated according to his full-time weekly wages pursuant to Section 440.14(1)(d), Florida Statutes. Full-time weekly wages must be determined prospectively by using either the contract of employment or the claimant’s actual earnings, according to the circumstances of the case. Simpkins v. Watson, 397 So.2d 432 (Fla. 1st DCA 1981); Penuel v. Central Crane Service, 232 So.2d 739 (Fla. 1970). In this case, there was no contract of employment, but the employer’s actual pay records reflect that claimant worked and was paid for 27 hours in the three days immediately preceding his accident, for a projected total of 45 hours per week. The testimony of supervisors also indicated that most workers were receiving some overtime pay. While the deputy properly rejected claimant’s testimony that he worked approximately 29.5 hours in the three days prior to the accident, the rejection of the employer’s uncontroverted pay records was erroneous. Therefore, the deputy’s computation of claimant’s average weekly wage is reversed and remanded for recalculation based on a work week of 45 hours per week.

On the cross-appeal, INA urges that the deputy erred in finding that coverage on the date of the accident was afforded by INA and in awarding reimbursement to Risk. We affirm, as competent substantial evidence supported the deputy’s finding of “dual coverage” pursuant to Section 440.-42(2), Florida Statutes, which provides that in such cases “it shall be presumed that only that policy with the later effective date shall be in force and that the earlier policy terminated upon the effective date of the latter.” The evidence indicated that INA assumed coverage prior to the accident and then subsequently attempted to revoke same. The award of reimbursement is affirmed.

However, the award of attorney fees in favor of Risk from INA must be reversed, as this court has held that Section 440.34, Florida Statutes, does not permit an award of fees to anyone other than claimant’s attorney. Aetna Insurance Company v. Houck, 411 So.2d 936 (Fla. 1st DCA 1982). Risk’s contention that it stood in the shoes of claimant is without merit, as Section 440.34 was intended to enable injured employees who had not received equitable compensation to engage competent legal assistance. Ohio Casualty Company v. Parrish, 350 So.2d 466 (Fla. 1977).

The order below is affirmed in part and reversed in part, and this cause remanded for proceedings in accordance with this opinion.

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


text:
    W. N. AVERA as Personal Representative of the Estate of Gail Avera, Deceased, Appellant, v. F.A. BOYD & SONS, INC., a Florida corporation, Appellee.
    No. AH-171.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1982.
    Patrick H. Perry of Avera & Stripling, Gainesville, for appellant.
    James E. Clayton of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellee.
   SHIVERS, Judge.

Appellant seeks review of the lower court’s order denying a motion to distribute partnership funds to the estate of the deceased without setoff for the amount due the partnership from the deceased. We affirm.

On February 10, 1973, F.A. Boyd & Sons, Inc. and Gail Avera entered into a limited partnership, Gulf Hammock Recreational Development, Ltd., with Avera serving as the only general partner. In May 1976, F.A. Boyd & Sons, Inc. brought an action alleging Avera breached her fiduciary duty and the terms of the limited partnership. The complaint sought Avera’s removal as general partner, requested appointment of a receiver, dissolution of the partnership and an accounting. The cause was tried on August 25 and 26, 1977. On August 28, 1977, Avera died. Avera’s estate was substituted as a party and the court rendered its decision removing Avera as general partner and appointing F.A. Boyd as receiver. The order determined Gulf Hammock Recreational Development, Ltd. was entitled to recover $61,418 from Avera. The order also determined that F.A. Boyd & Sons, Inc. (one of the limited partners) was entitled to recover from the said limited partnership, Gulf Hammock Recreational Development, Ltd., a total of $109,709. It ordered the receiver to withhold payment of the interest and principal on said obligations until further order by the court. On October 5, 1981, appellant filed a motion to have the receiver distribute the remaining partnership assets without adjustment for the amount due the partnership from Av-era. The court denied the motion and directed the receiver to balance the partners’ accounts, making an adjustment for the amount due the partnership from Avera and to pay each partner the balance according to each one’s interest. Avera’s personal representative appeals the denial of this motion.

Appellant raises two issues, both of which can be resolved by determining how assets of the limited partnership should be distributed on dissolution. First, appellant asserts the partnership is nothing more than a judgment creditor and, as such, must file a claim in the manner set out by the probate code. If the estate is entitled to a share in the partnership assets without adjustment for the $61,418, then Avera’s share would be part of the estate and the partnership should follow the procedure under Chapter 733. Second, appellant asserts the partnership must, as a judgment creditor, obtain a charging order in order to satisfy its claim against the limited partnership’s assets. Resolution of both these issues depends on whether the liabilities between the partners are setoff during dissolution.

The lower court determined the general partner breached the limited partnership agreement and that she owed the limited partnership $61,418. After ordering the dissolution, the trial court required an accounting adjusting for the partnership debt owed by the general partner. Although the Uniform Partnership Act provides that when a partner violates the partnership agreement the other partners may satisfy their claims against the partnership out of the partnership’s assets, no such provision is found in the Uniform Limited Partnership Act. However, section 620.23, Florida Statutes, provides that the assets and profits of the limited partnership are to be distributed to the limited partners, in respect to their shares of profits, income and capital, before distribution is made to the general partner. Thus, Avera, now her estate, could not be entitled to the assets of the partnership until the limited partners’ claims were satisfied. Although Florida has not considered this issue, other jurisdictions have followed the general path adopted by the trial court.

Generally, it is important to note that the dissolution of a limited partnership is an equitable matter. The decedent’s personal representative takes merely an equitable interest in the distribution of any surplus remaining after payment of partnership debts. On the settlement of the partnership the interest of the deceased partner goes to his personal representative as an asset of the decedent’s estate. 33 C.J.S. Executors and Administrators, s. 115, page 1069. In In Re Wilson’s Estate, 50 Wash.2d 840, 315 P.2d 287 (1957), the court considered the dissolution of a partnership and the purchase of a deceased partner’s interest. The court stated:

Since the action is primarily concerned with a partnership accounting and a petition to purchase decedent’s interest based thereon, equitable principles must be applied and the parties awarded what they are justly entitled to under the facts.

Id., 315 P.2d at 294.

In Dycus v. Belco Industries, Inc., 569 P.2d 553 (Okla. Ct. App. 1977), the court considered the dissolution of a limited partnership applying a statute similar to section 620.23, Florida Statutes. The court found that the general partner’s claim may only be paid after the claims of the creditors and those of the limited partners have been satisfied. Following this logic, the general partner’s successor, the estate, can hardly expect a greater right to the partnership’s assets than the general partner would have had had she survived.

Similarly, other jurisdictions have approved the method used by the trial court in adjusting the limited partnership’s accounts. In Horn v. Builders Supply Company of Longview, 401 S.W.2d 143 (Tex. Civ. App. 1966), the court considered a case in which a general partner in a limited partnership misappropriated the limited partnership’s funds. The trial court noted that after dissolution, appellant was only-entitled to the value of his interest in the partnership.

By his fraud he put the partnership to an end insofar as he was concerned, and this disqualified him from insisting that the remaining partners carry out their part of the bargain. The only right then remaining in the defendant was to be secure in the payment to him of the “value of his interest in the partnership at the dissolution,” less recoverable damages.

Id., at 148.

The process advocated by Avera’s personal representative would not speed just distribution of the assets to the limited partners. It would not be equitable to require payment to the estate of more than the net value of Avera’s interest. Accordingly, the process utilized by the trial court is approved and the order below is AFFIRMED.

ERVIN and WENTWORTH, JJ., concur.


author: WENTWORTH, Judge. BOOTH, Judge,

text:
    KILLEARN LAKES HOMEOWNERS ASSOCIATION, Appellant, v. Marsha SNELLER, Appellee.
    No. AH-420.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1982.
    Rehearing Denied Oct. 1, 1982.
    Melvin R. Horne of Horne, Rhodes, Jaf-fry, Horne & Carrouth, Tallahassee, for appellant.
    Bruce Culpepper of Culpepper, Beatty & Turner, Tallahassee, for appellee.
   WENTWORTH, Judge.

This is an appeal from an order of the circuit court permanently enjoining appellant from constructing a “Tot Lot” in an area which adjoins appellee’s property. The appellee/plaintiff bought a lot and built a house in Killearn Lakes subdivision, which lot is adjacent to a “green area” set aside for use other than as residential lots. The purpose and intent of the green areas are set out in Article IX of the declaration of covenants and restrictions. This declaration was properly recorded, and it is the interpretation of Article IX which is the subject of this suit.

Article IX provides in pertinent part:

Section 1. It shall be the express intent and purpose of these Covenants and Restrictions to [1] protect, maintain, and enhance the natural environment and specifically those certain areas designated as Green Areas ... to [2] maintain and enhance the conservation of natural and scenic resources, to [3] promote the conservation of soils, fish, wildlife, ... [4] enhance the value of abutting and neighboring forests, ... or ... open spaces, and to [5] afford and enhance recreation opportunities, . .. and implement generally the Killearn Lakes Master Plan for development.
Section 2. Pursuant to its overall program of wildlife conservation and nature study, the right is expressly reserved ... to erect buildings and other facilities for all types of recreation, ... and to take such other steps as are reasonable, necessary and proper to further the aims and purposes of the Green Areas.
Section 3. The general topography of the landscape, ... the natural vegetation, trees, and any and all other unusual features in the Green Areas shall be continued in their present condition, subject only to the exceptions noted herein, [emphasis supplied]

Appellant contends the trial court erred in determining that “the proposed ‘Tot Lot’ is not consistent with the terms and purposes of the Declaration of Covenants and Restrictions, and is therefore prohibited.” The court also stated, as a conclusion without factual findings, that “irreparable harm will ensue if injunctive relief is not granted.” We find no merit in appellant’s argument, not raised prior to the hearing below, that the allegations of the complaint did not permit the latter determination. The injunction, however, was clearly entered in enforcement of the covenants as construed by the court, and not in the exercise of any other equitable power based on irreparable injury from activities not proscribed per se by the covenant. Our conclusion that the court erred in its stated construction of the covenant therefore requires that the order be vacated, and we do not reach any further question of whether the pleadings and proofs permit equitable relief independent of the covenant.

The trial court acknowledged that Section 2 of Article IX, supra, gives defendant the right to build certain structures, but reasoned that the proposed installation of a swing set, picnic table, and underground garbage can, did not comply with the covenant’s limitation of recreation facilities to those erected “[pjursuant to its overall program of wildlife conservation and nature study.” That constraint certainly qualifies the reserved right to erect “buildings and other facilities for all types of recreation.” Even conceding that “all types of recreation” means recreation consistent with conservation and nature study, we are unable to conclude from the record before us that the facilities in the particular “Tot Lot” proposed here are such as to “lay waste to the stated purpose and terms of the remainder of Article IX” as stated in the order below. If the reserved right to erect recreational facilities in green areas is to have any applicability whatever to “tots,” as an age group reasonably within the range of persons to be served by such facilities, the particular proposal in this case would appear to be minimal in scope. There would also appear to be some invasion of the discretionary management function by a judicial determination that a swing set is, as a matter of law, inconsistent with conservation interests for young children. We decline to exercise that function on the evidence before us, but recognize the potential effect of the cited covenant as proscribing facilities which have no reasonable relationship to enhancement of the natural environment for recreational use by residents of the subdivision.

As to further debate between the parties concerning permissible location of such a facility in the development in question, the trial court did not find any abuse of discretion in this respect, even if that issue could be considered pertinent to this proceeding. The order does not, for example, find that the appellant Association, by the exercise of its right to locate the facility in the particular green area in question, has created conditions subject to injunction under nuisance standards. We do not, of course, determine the propriety of such a conclusion on this record, because the injunctive order appealed is neither so predicated nor defended here on that theory.

The order is reversed and the cause remanded for disposition consistent with this opinion.

WIGGINTON, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I respectfully dissent and would affirm the judgment of the trial court below, who, sitting as the finder of fact, entered the following order, in pertinent part, as follows:

Article IX of the Declaration of Covenants and Restrictions of Killearn Lakes states that the express intent and purpose of those covenants is to “protect, maintain, and enhance the natural environment.” In construing restrictive covenants, the entire text of the agreement is considered in the determination of the intention of the parties. Thompson v. Squibble, [Squibb] 183 So.2d 30 (1966).
In light of the foregoing authorities, this Court finds from the covenants as a whole an overwhelming intent of the parties to preserve the natural state of the Green Areas. Even the clause relied upon by Defendant as the authority for the construction of the proposed “Tot Lot” is tempered by a statement that those rights reserved in Section 2 are done “[Pjursuant to its overall program of wildlife conservation and nature study ...” As this Court stated in its previous order, adoption of Defendant’s proffered construction would lay waste to the stated purpose and terms of the remainder of Article IX. Therefore, this Court finds that, while Section 2 of Article IX gives Defendant the right to build certain structures, the proposed “Tot Lot” is not consistent with the terms and purposes of the Declaration of Covenants and Restrictions, and is therefore prohibited.
This Court, having received testimony and arguments of counsel, finds that irreparable harm will ensue if injunctive relief is not granted and that there is no adequate remedy at law.

The foregoing order is eminently correct that the intent of the parties controls the construction of the covenants and that clearing for a tot lot is inconsistent with the maintenance of green areas, which clearing will cause irreparable damage to the environment.

      . Stephl v. Moore, 94 Fla. 313, 114 So. 455 (1927).

      . Mundy v. Carter, 311 So.2d 773 (Fla. 1st DCA 1975).


author: THOMPSON, Judge.

text:
    KRAFT, INC. and Ideal Mutual Insurance Company, Appellants, v. Alfredo BELTRAN and Division of Workers' Compensation, Appellees.
    No. AJ-337.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1982.

      Daniel J. Sullivan of Gladson & Sullivan, Miami, for appellants.
    Kenneth G. Lancaster, South Miami, and Ronnie Klein Witlin of Witlin & Witlin, Miami, for appellees.
   THOMPSON, Judge.

The employer/carrier (E/C) bring this appeal of a workers’ compensation order, charging that the deputy commissioner erred in awarding claimant temporary total disability (TTD) benefits from June 26, 1981 and continuing. We reverse.

On June 12, 1980, the claimant, a route salesman, was robbed and severely beaten. He was thereafter hospitalized and treated for multiple injuries, including a broken nose, cracked ribs, and an injury to his left shoulder and arm. The claimant recovered satisfactorily from all injuries except his arm injury, which was requiring treatment through the date of the hearing. The E/C furnished all required medical care, and paid TTD benefits until June 25,1981, when it received a report from an investigator indicating that claimant was working. On receiving this information, the E/C discontinued payment of disability benefits and deauthorized the claimant’s treating physician. The claimant then filed his claim for benefits, seeking continuing medical treatment and reinstatement of TTD benefits.

Although the testimony on the issue was in sharp conflict, there is competent substantial evidence to support the deputy’s determination that the E/C’s investigator was mistaken, and that the claimant had not been working at the time the E/C discontinued payment of benefits. However, everyone who testified on the issue of the claimant’s ability to work, including the treating physician, the examining physician, and the claimant himself, agreed that claimant was capable of working, even though his condition had not yet improved sufficiently to enable him to handle the heavy lifting which was part of his regular job. Because the evidence showed that claimant was not totally disabled, and because claimant admitted that he made no effort to obtain work which was within his capabilities the award of TTD benefits must be reversed. Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981). Accordingly, the case is remanded for determination of claimant’s entitlement to temporary partial disability benefits, with instructions to the deputy to consider the provisions of § 440.15(4)(b), Fla. Stat. relating to “deemed” earning capacity where a claimant has voluntarily limited his or her income. Duro Paperbag Mfg. Co. v. Graham, 415 So.2d 809 (Fla. 1st DCA 1982).

REVERSED and REMANDED.

MILLS and BOOTH, JJ., concur.


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

text:
    Leamon WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. AL-487.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1982.
    Leamon Williams, pro se.
    No appearance for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Williams appeals from the trial court’s order denying him post-judgment relief, Fla. R. Cr. P. 3.850, from his conviction for murder in the first degree and life sentence. Williams’ motion complained that he was denied effective assistance of counsel in that Eighth Circuit Public Defender Parla-piano, who withdrew from the representation at trial on request by Williams, and by leave of court, allegedly failed to contact Williams’ parents as potential witnesses. The public defender stood by to assist Williams, at request of the trial court, while Williams conducted his own defense at his own request.

In denying the 3.850 motion the trial court erroneously held that the claim of ineffective counsel could and should have been raised on Williams' direct appeal, in which this Court affirmed the conviction. See State v. Barber, 301 So.2d 7 (Fla. 1974) and Roberts v. State, 402 So.2d 1343 (Fla. 1st DCA 1981). Yet the court properly denied the motion, both because it lacks specific allegations of the exonerating testimony Williams intimates his parents might have given and because the partial trial transcript exhibited with the motion details the circumstances under which the public defender withdrew and convincingly refutes the general allegation of pre-trial incompetent representation by counsel. As for Williams’ allegation that counsel had not “contacted” his parents, Williams’ pretrial complaint to that effect was no more specific than his 3.850 motion. Counsel upon withdrawing cited Williams’ refusal to discuss with him possible defenses, and Williams, though given an opportunity to do so, did not deny counsel’s recital of his diligent pre-trial representation. There is no claim that Williams was denied the opportunity at trial to call his parents or any other exculpatory witness.

The 3.850 motion was without merit, and the trial court’s order is

AFFIRMED.

LARRY G. SMITH and WENTWORTH, JJ., concur.


author: CURTIS, CLINTON A., Associate Judge.

text:
    Charles Edward BALDWIN, Appellant, v. STATE of Florida, Appellee.
    No. 81-2018.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 1982.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   CURTIS, CLINTON A., Associate Judge.

This is an appeal from the denial of a motion to suppress evidence. The issue before us is whether the police officer exceeded the permissible scope of a pat-down or frisk incident to an investigatory stop where a wallet was seized from defendant’s person. We agree with defendant that seizure of the wallet was illegal and reverse.

Officer Ronald Heck testified that pursuant to investigating a strong-arm robbery, he stopped defendant and another man and asked them for identification. The other man produced identification, but defendant said he had none, although he gave his name. The officer then patted down both men for weapons. Officer Heck felt a bulge, consistent with a wallet, in defendant’s back pocket. The bulge turned out to be the victim’s wallet, and the wallet was seized. The officer admitted that when he felt the bulge, he knew it was a wallet. He had no apprehensions that the bulge in defendant’s pocket was a weapon.

Section 901.151, Florida Statutes (1981), sets out the procedure by which police officers may stop and frisk people suspected of wrongdoing. Under that statute, if the officer has properly stopped someone and believes that the person may be armed with a dangerous weapon, he may search that person to the extent necessary to disclose the presence of such weapon. However, the search may not be extended beyond a pat-down of the suspect’s outer clothing unless that pat-down or other circumstances leads the officer to conclude that the suspect has a weapon on his person. Meeks v. State, 356 So.2d 45 (Fla. 2d DCA 1978). In the instant case, although Officer Heck initiated the pat-down to disclose any weapons on defendant’s person, he candidly admitted that he knew the bulge in defendant’s pocket was not a weapon. Clearly then, since Officer Heck knew the bulge was not a weapon, he could not legally reach into defendant’s pocket and pull out the wallet. Raleigh v. State, 404 So.2d 1163 (Fla. 2d DCA 1981); Meeks v. State.

Section 901.151(5) states that if “such a search discloses such a weapon or any evidence of a criminal offense, it may be seized.” However, the seizure of contraband or other evidence of a crime during a legal stop and frisk is permissible only so long as the officer reasonably believes that the object which he is acquiring might be a weapon. Dunn v. State, 382 So.2d 727 (Fla. 2d DCA 1980). Therefore, since the officer never considered the bulge to be a weapon, the seizure of the wallet did not conform with acceptable procedures.

We vacate the judgment, reverse the order denying the motion to suppress the wallet, and remand the case for further proceedings consistent with this opinion.

REVERSED and REMANDED.

DANAHY, A.C.J., and SCHOONOVER, J., concur.


text:
    Reynaldo D. McQUAY, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-59, 82-60.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

At McQuay’s probation revocation hearing on December 3, 1981, the trial judge orally revoked his probation in Case No. 81-3939 and sentenced him to two and a half years in prison. However, the judgment and sentence reflect revocation in Case No. 81-3938 as well as Case No. 81— 3939. We affirm the revocation as it relates to Case No. 81-3939 because McQuay voluntarily pled nolo contendere to the charge in that case. With respect to Case No. 81-3938, we reverse because a review of the record indicates that McQuay never entered a plea to the charge in that case. It is so ordered.

DANAHY, A.C.J., SCHOONOVER, J., and CLINTON A. CURTIS, Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. George Bunyan BUTLER, Appellee.
    No. 82-177.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    A. R. Mander, III of Greenfelder & Man-der, P.A., Dade City, for appellee.
   PER CURIAM.

The state appeals from an order granting the appellee’s motion to dismiss an information alleging, inter alia, two counts of tampering with a witness, section 918.14(1), Florida Statutes (1979). We reverse.

A review of the counts of the information in question, indicates that the state basically tracked the statutory language of section 918.14(1). This practice has been generally upheld as affording an accused his constitutionally mandated right to be properly informed of the charges against him. State v. Dilworth, 397 So.2d 292 (Fla. 1981). However, it is clear that an information is defective if it does not allege that all acts which constitute the elements of a crime were committed by the defendant. Hamilton v. State, 129 Fla. 219, 176 So. 89, 112 A.L.R. 1013 (1937).

The order granting the appellee’s motion to dismiss specifically cited Gray v. State, 404 So.2d 388 (Fla. 5th DCA 1981). In Gray, the court construed an information tracking the statutory language of section 918.14(3)(a)1, Florida Statutes (1979). Section 918.14(3)(a)1 is a companion section to section 918.14(1). First, the Gray court was concerned that the information failed to allege that the witness that was allegedly influenced was a witness “in some trial, proceeding or investigation . . . pending or to be instituted in some [specifically described official governmental] forum or tribunal.” The Gray court did indicate, however, that “a list of forums or tribunals is made a part of . . . section 918.14(1). . . . ” The result is that tracking the statutory language of section 918.14(1) in drafting an information would, in fact, supply this necessary allegation. Importantly, the information under scrutiny here specifically stated that the appellee/defendant knew an investigation was proceeding in one of the alternatively listed forums and tribunals specifically included in section 918.14(1).

The appellee/defendant contends that the information did not specifically allege scien-ter. Scienter here would be knowledge that the “witness” was to be a witness in one of the aforementioned forums. Furthermore, the appellee/defendant argued that the information did not specifically allege intent to cause such witness to withhold testimony or to testify falsely. However, the information did allege that, knowing that an investigation was under way in one of the aforementioned tribunals or forums, the appellee/defendant “did endeavor ... to induce or otherwise cause a witness ... to testify or inform falsely or withhold any testimony.” The American Heritage Dictionary defines endeavor as “a conscientious or concerted effort toward a given end.” [Emphasis added.] American Heritage Dictionary 431 (New College Ed. 1981). It goes without saying that one who makes a conscientious effort toward an end has the requisite knowledge of the circumstances (scienter) and an intent to achieve that end.

In addition to expressing the elements of the crime, an information must express such elements in a way that the accused is neither misled or embarrassed in the preparation of his defense nor exposed to double jeopardy. State v. Dilworth. Here, additional facts supplemented the information. The information named the witnesses alleged to be tampered with. Furthermore, the information indicated what the appellee/defendant was attempting to cause said witnesses to do: “should not talk to anyone and should state that said witness had not seen anything.” Thus, the information in this case was sufficient to meet the above-mentioned standards.

Accordingly, this case is reversed and remanded for further proceedings consistent with this opinion.

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

      . The pertinent counts read as follows:
      COUNT II. And the State Attorney aforesaid, under oath as aforesaid, further information makes that GEORGE BUNYAN BUTLER of the County of Pasco and State of Florida, on the twelfth day of September in the year of our Lord, one thousand nine hundred eighty one in the County and State aforesaid knowing that any investigation by duly constituted prosecuting attorney, law enforcement agency, grand jury, legislative committee is pending or knowing such is about to be instituted, did endeavor to attempt to induce or otherwise cause a witness, to-wit: George Aldridge, to testify or inform falsely or withhold any testimony, information document or thing, to-wit: should not talk to anyone and should state that said witness had not seen anything; contrary to Chapter 918.14, Florida Statutes and against the peace and dignity of the State of Florida.
      COUNT III. This count reads exactly as Count II, except that the name of the witness is changed.

      . Although neither party raised this fact, it is noted that the information improperly indicated: “did endeavor to attempt to induce or otherwise cause a witness... . ” [Emphasis added.] Checking the statute, it is apparent that the drafter of the information intended to include the word “or” instead of “to” in the aforementioned statement. As neither party raised this, it was apparently a typographical error. This error may be cured on remand.


author: FERGUSON, Judge.

text:
    Antonio MORENO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-11.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 1982.

      Magazine & Blumenfeld and Joseph H. Kelinson, for appellant.
    Jim Smith, Atty. Gen., and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J. and HENDRY and FERGUSON, JJ.
   FERGUSON, Judge.

Defendant Antonio Moreno and Donald Carroll became involved in an altercation after a traffic accident, and Moreno was subsequently charged with aggravated battery. A jury returned a guilty verdict to the lesser-included offense of culpable negligence.

Moreno contends in this appeal that: (1) it was error to deny his motion to admit relevant similar fact evidence which tended to exculpate him, (2) the court unduly restricted his attempt to cross-examine key state witnesses regarding bias and motivation in violation of his Sixth Amendment right of confrontation (3) it was error to conduct a hearing in the presence of a jury to determine voluntariness of a statement given to police officers and error to conclude that the statement was given voluntarily. We reverse the conviction.

The pertinent facts are as follows. On March 4, 1980, Donald Carroll and two other men, Robert Russell and John Grieve, drove their tow truck alongside Moreno’s car, made obscene gestures, shouted racial slurs, and rammed the truck into the rear of Moreno’s vehicle. Carroll and the other occupants of the truck admittedly had been drinking beer prior to the collision. Moreno pulled over and the three men exited their truck and started toward him yelling threats. Russell was carrying a tire iron, Grieve a hooking chain, and Carroll a sharp object. Moreno and Carroll scuffled and Carroll was severely cut. Russell and Grieve pursued Moreno until an off-duty policeman arrived and ordered them to stop. Carroll was taken to a hospital and the others were questioned by officers at the scene. Officer Heacock, the first to speak with Moreno, read him his Miranda rights and took a statement from him. Approximately three hours later, still at the scene of the incident, Moreno gave another statement to Detective Bruckner. Six months after this incident Russell and Grieve were arrested and charged with aggravated battery stemming from a similar altercation in which they attempted to ram another vehicle with their truck and accosted the driver with a tire iron.

Prior to trial, Russell and Grieve, reluctant witnesses in the prosecution of Moreno, stated they would invoke the Fifth Amendment if called to testify. The state then granted both witnesses immunity in the case pending against them in exchange for their testimony against Moreno. The state and the defense each filed a motion in li-mine. The defense sought to introduce fact evidence concerning the pending charges against Russell and Grieve arising from the similar case and the state sought to limit such evidence. The court granted the state’s motion, ruling that defense counsel would be limited to one question concerning the immunity agreement between the two witnesses and the state.

I

The state’s motion in limine, granted by the trial court, prevented the defendant from presenting similar fact evidence to show that the state’s witnesses and not the defendant were the aggressors. The ruling was based on a misapplication of Section 90.404(2), Florida Statutes (1979) which codifies the holding in Williams v. State, 110 So.2d 654 (Fla. 1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

Neither Williams v. State, supra, nor Section 90.404(2) which codifies Williams states any new rule of law. Even before Williams, the general rule of evidence was that any fact relevant to the issue is admissible into evidence unless precluded by a specific rule of exclusion. See, e.g., Wallace v. State, 41 Fla. 547, 26 So. 713, 718 (1899); Roberson v. State, 40 Fla. 509, 24 So. 474, 476 (1898); Makin v. Attorney General of New South Wales (1894) A.C. 57. Essentially, Williams holds that evidence of another crime is irrelevant unless it has direct probative value to the crime charged. See Lovely v. United States, 169 F.2d 386 (4th Cir. 1948), which the court in Williams, supra at 665, cites as authority for its rule that the question to be decided is not whether the evidence tends to point to another crime but rather whether it is relevant to the crime charged. Further, it is clear from a reading of the entire statute that it applies only to the use of similar crime evidence by the state against the defendant in a criminal trial. It is Section 90.402, Florida Statutes (1979) which applies to this case: it provides that “All relevant evidence is admissible except as provided by law.”

There is authority supportive of appellant’s argument that his proffered evidence should be admitted. Where a defendant offers evidence which is of substantial probative value and such evidence tends not to confuse or prejudice, all doubt should be resolved in favor of admissibility. Holt v. United States, 342 F.2d 163 (5th Cir. 1965); Commonwealth v. Keizer, 385 N.E.2d 1001 (Mass. 1979). Where evidence tends, in any way, even indirectly, to prove a defendant’s innocence, it is error to deny its admission. Chandler v. State, 366 So.2d 64 (Fla. 3d DCA 1979); Watts v. State, 354 So.2d 145 (Fla. 2d DCA 1978). In Commonwealth v. Keizer, supra, the court permitted defendant to show that crimes of a similar nature had been committed by some other person so closely connected in point of time and method of operation as to cast doubt upon the identification of the defendant as the person who committed the crime. The evidence appellant sought to have admitted herein is of a crime alleged to have been subsequently committed by the State’s key witnesses which is so similar, in its method and circumstances, to the events surrounding the defendant’s alleged offense that it could, if heard by the jury, raise a reasonable doubt as to the defendant’s guilt. Because the similar crime evidence is relevant, non-prejudicial, and not inadmissible by any rule of law, it should have been admitted. One accused of a crime may show his innocence by proof of the guilt of another. Lindsay v. State, 68 So. 932 (1915); see Barnes v. State, 415 So.2d 1280 (Fla. 2d DCA 1982); Pahl v. State, 415 So.2d 42 (Fla. 2d DCA 1982).

II

The trial court’s refusal to allow Moreno to question Russell and Grieve about criminal charges brought against them, for which they had been granted immunity in exchange for their testimony, is reversible error. The law is firmly established that where a prosecution witness is under criminal charges or investigation leading to such charges or has been granted immunity in exchange for his testimony, the person against whom the witness testifies in a criminal case has an absolute right to cross-examine the witness in order to discredit his testimony by showing bias, prejudice or interest, particularly where the witness is crucial to the case. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Fulton v. State, 335 So.2d 280 (Fla. 1976); D.C. v. State, 400 So.2d 825 (Fla. 3d DCA 1981); Cowheard v. State, 365 So.2d 191 (Fla. 3d DCA 1978), cert. denied, 374 So.2d 101 (Fla. 1979); Blanco v. State, 353 So.2d 602 (Fla. 3d DCA 1977); Crespo v. State, 344 So.2d 598 (Fla. 3d DCA 1977); Lee v. State, 318 So.2d 431 (Fla. 4th DCA 1975); Morrell v. State, 297 So.2d 579 (Fla. 1st DCA 1974). The Sixth Amendment right of confrontation of witnesses requires that a defendant in a state criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination showing possible bias due to the witness’s status as an offender subject to punitive measures by the state; denial of effective cross-examination in such circumstances would be constitutional error and not curable by a showing of an absence of prejudice. Davis v. Alaska, supra, citing to Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314 (1966); Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 749, 19 L.Ed.2d 956 (1968).

III

During the trial the court, over defense objections, conducted a hearing in the presence of a jury to determine whether defendant’s statements to Detective Bruckner were voluntary. After hearing testimony regarding the circumstances surrounding the taking of the statements, the trial court correctly ruled that the statements were voluntarily made. Moreno had been properly advised of his Constitutional right to remain silent before he was questioned by Officer Heacock. While still at the scene there was no requirement for a second Miranda warning before he talked with Detective Bruckner. Though it was a procedural error for the judge to have conducted the examination in the presence of the jury, it was not harmful error since the court found the statements free of any illegal taint. Brown v. State, 181 So.2d 578 (Fla. 1st DCA 1965); see also Suggs v. State, 303 So.2d 687 (Fla. 2d DCA 1974) (where a hearing on the voluntarjness of defendant’s confession was made in the presence of the jury after which it was ruled that the statements were inadmissible, a new trial was required).

The judgment below is reversed and the cause is remanded for a new trial.

      . Law Revision Council Note — 1976, § 90.404, Florida Statutes Annotated (1979): “Section 90.404(2)(a) was amended by the Committee Substitute adopted by the Senate Committee on the Judiciary-Criminal to closely paraphrase the language used in Williams v. State, supra. There the court, in finding admissible evidence relating to the commission by the defendant of another crime stated:
      Evidence of any facts relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion. This rule we hold applies to relevant similar fact evidence. . . even though it points to the commission of another crime.”

      . Examples of relevant but inadmissible evidence are: Privileged relationships, § 90.502-506, Fla.Stat.; hearsay, § 90.801, Fla.Stat.; where probative value is substantially outweighed by danger of unfair prejudice, § 90.-403, Fla.Stat.; product of unlawful search and seizure, Field v. United States, 263 F.2d 758 (5th Cir. 1959), cert. denied, 360 U.S. 918, 79 S.Ct. 1436, 3 L.Ed.2d 1534 (1959) and State v. Mach, 187 So.2d 918 (Fla. 2d DCA 1966); product of illegally obtained confession, Collins v. Wainwright, 311 So.2d 787 (Fla. 4th DCA 1975); results of polygraph examination in absence of stipulation, State v. Cunningham, 324 So.2d 173 (Fla. 3d DCA 1975).


text:
    Patricia BURNETT, as Personal Representative of the Estate of William Terry Burnett, on behalf of the Estate of William Terry Burnett and Patricia Burnett, individually, and Patricia Burnett as Natural Guardian of William Shane Burnett, a minor, Appellants, v. HARDAWAY CONSTRUCTORS, INC., a Georgia corporation and Post, Buckley, Schuh & Jernigan, Inc., a Florida corporation, Appellees.
    No. 81-605.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 1982.

      Albert A. Gordon, Greene & Cooper, Miami, for appellants.
    Corlett, Merritt, Killian and Sikes and Laurence Craig, Peters Pickle, Flynn, Niemoeller, Stieglitz & Downs and Nancy Schleifer and Gerald E. Rosser, Miami, for appellees.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. § 47.122, Fla. Stat. (1979); Della-Donna v. Gore Newspaper Company, 390 So.2d 87 (Fla. 3d DCA 1980), pet. for review denied, 399 So.2d 1141 (Fla. 1981); Grafco Realty, Inc. v. Ecclestone, 385 So.2d 183 (Fla. 4th DCA 1980); Hertz Corporation v. Rentz, 326 So.2d 216 (Fla. 4th DCA 1976); Peterson, Howell & Heather v. O’Neill, 314 So.2d 808 (Fla. 3d DCA 1975).


author: PER CURIAM. FERGUSON, Judge

text:
    Clayton WAY, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1086.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 1982.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

The defendant was convicted of the first-degree murder of Arthur Lee Andrews. The only issue on appeal is whether the evidence was sufficient to establish premeditation. Finding that it was, we affirm.

As we stated in E.Y. v. State, 390 So.2d 776, 778 (Fla. 3d DCA 1980):

In our appellate posture, we must assume that the trier of fact “believed that credible testimony most damaging to the defendant and drew from the facts established those reasonable conclusions most unfavorable to the defendant.” Parrish v. State, 97 So.2d 356, 358 (Fla. 1st DCA 1957), cert. denied, 101 So.2d 817 (Fla. 1958). See also, Jefferson v. State, 298 So.2d 465 (Fla. 3d DCA 1974). Consequently, this court will not substitute its judgment for that of the trier of fact nor pit its judgment against those determinations of fact properly rendered by the trier of fact. State v. Smith, 249 So.2d 16 (Fla. 1971). All conflicts and reasonable inferences therefrom are resolved to support the judgment of conviction. Wooten v. State, 361 So.2d 167 (Fla. 3d DCA 1978); Dawson v. State, 338 So.2d 242 (Fla. 3d DCA 1976); Starling v. State, 263 So.2d 645 (Fla. 3d DCA), cert. denied, 268 So.2d 905 (Fla. 1972).

Viewing the evidence in this light, it appears that the defendant became upset upon learning from his “common-law” wife that Annie Andrews and her brother, Arthur, had come to his house searching for cases of soda which had been stolen from Annie’s store. He stated, “I’ll straighten them out,” walked one block to their store, said to Arthur, “I’ll kill you,” and shot him.

It was within the province of the jury to find that the alleged intrusion by Arthur and Annie into the home of the defendant was not enough to arouse the defendant’s passion to a point where it clouded his reason and obscured what would otherwise be a deliberate purpose to kill. There was sufficient evidence to support the jury’s determination that the defendant had formed a premeditated design to kill justifying a verdict of murder in the first degree. Wooten v. State, 104 Fla. 597, 140 So. 474 (Fla. 1932).

Affirmed.

FERGUSON, Judge

(concurring in part)

The circumstantial evidence, if strained, will support a finding as to the element of premeditation which is necessary to a first degree murder conviction. But the same circumstantial evidence does not exclude, indeed is more consistent with an element other than premeditation, and justifies reducing the conviction, as a matter of law, to second-degree murder. The elements of second-degree murder are (1) the unlawful killing of another, (2) by an act which a person of ordinary judgment would know is reasonably certain to kill or cause serious bodily injury to another, (3) is done from ill will, hatred, spite or an evil intent and (4) is of such a nature that the act itself indicates an indifference to human life. Marasa v. State, 394 So.2d 544 (Fla. 5th DCA 1981). The facts show that the deceased, as a member of an armed party, had forced his way into the defendant’s home and intimidated defendant’s wife while he was away. Upon learning of the occurrence defendant immediately sought out the perpetrators. When he came upon them at their place of business defendant warned them against coming to his house again and then shot the victim. The shooting of the victim was preceded or followed by a random shot into the ceiling. I would reduce the conviction to second-degree murder. See Martinez v. State, 360 So.2d 108 (Fla. 3d DCA 1978); Miller v. State, 328 So.2d 544 (Fla. 3d DCA 1976).

      . The trial judge while expressing some doubt as to his authority to reduce the conviction was also of the opinion that this was not a case where the twenty-five year mandatory minimum sentence was warranted.


author: NESBITT, Judge.

text:
    Virginia SAGAERT, Appellant, v. STATE of Florida, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY UNEMPLOYMENT APPEALS COMMISSION, Appellees.
    No. 82-136.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 1982.

      Virginia Sagaert, in pro. per.
    James R. Parks and Norman A. Blessing, Tallahassee, for appellees.
    Before NESBITT, DANIEL S. PEARSON, and JORGENSON, JJ.
   NESBITT, Judge.

This is an appeal by a claimant from an order requiring her to repay to the Division of Employment Security (Division), unemployment compensation benefits that were paid to her mistakenly, but not as the result of any fraud on her part.

The facts are simple and undisputed. Initially, the claimant sought and obtained unemployment compensation benefits during a specified period of time. Subsequently, she reopened that claim seeking additional benefits. In that proceeding, it was determined that she had not originally been entitled to receive a substantial amount of the unemployment compensation benefits already paid, due to the fact that she had voluntarily left her last employment without good cause attributable to her employer. § 443.06(1), Fla. Stat. (1979). Consequently, the claimant was disqualified from receiving compensation benefits retroactive to the date of her retirement. The claimant did not appeal the redetermination.

Some two months after this determination of disqualification, the Division issued another notice ordering the claimant to make reimbursement in the amount of the compensation benefits that she had been overpaid. § 443.151(6)(b), Fla. Stat. (Supp. 1980). The claimant appealed this determination to an appeals referee. The referee found that he had no jurisdiction to decide the issue of whether the compensation benefits should have been paid or not, since no appeal had been taken from the disqualification determination within the twenty-day period provided for in Section 443.151(4), Florida Statutes (Supp. 1980). In the face of uncontradicted evidence that $841 in compensation benefits had been paid to the claimant since the disqualification date, the referee sustained the order requiring reimbursement thereof. Upon further appeal to the Unemployment Appeals Commission, the decision of the referee was affirmed as being in accordance with the essential requirements of law.

We hold that the Division was authorized to make a redetermination pursuant to Section 443.151(3)(c), Florida Statutes (Supp. 1980); and that there was no impediment to the bifurcation of the determination of retroactive disqualification and the decision to order repayment. We also agree with the appeals referee’s finding that he had no jurisdiction to delve into the merits of the disqualification order, which had become final after the expiration of the twenty-day period for appealing. However, we find that the referee and the Commission overlooked Section 443.151(6)(c), Florida Statutes (Supp. 1980) when they made their respective rulings. Therefore, this cause must be remanded. § 120.68(9)(b), Fla. Stat. (1981).

Section 443.151(6)(c), supra, provides that in the case of a non-fraudulently-obtained overpayment, “[n]o recoupment from future benefits shall be had if such sum was received by such person without fault on his part and such recoupment would defeat the purpose of this chapter or would be against equity and good conscience.” This provision must be read to apply to recovery by repayment as well as by recoupment from future benefits. Re-coupment and repayment are the statutorily-authorized methods by which the Division corrects overpayment errors where no fraud has been committed by the claimant. We can discern no logical reason for granting the Section 443.151(6)(c), supra, defenses of statutory purpose and equity and good conscience to someone who will still be receiving benefits, while withholding these defenses from someone whose benefits are terminated and who is required to repay sums to the Division. A statute will not be interpreted to achieve an illogical or absurd result. McKibben v. Mallory, 293 So.2d 48 (Fla. 1974); Good Samaritan Hospital Association v. Simon, 370 So.2d 1174 (Fla. 4th DCA 1979).

Additionally, Section 443.151(6)(b), supra, gives the Division the discretion to select either recoupment or repayment when it seeks to undo an overpayment error. If the defenses in Section 443.151(6)(c), supra, were meant to apply only to recoupment and not to repayment, then in every case where future benefits were still to be paid, the Division could avoid the application of these defenses merely by exercising its discretion in favor of seeking repayment. To follow such an interpretation would pave the way for administrative abuse, a road we refuse to follow. Getzen v. Sumter County, 89 Fla. 45, 103 So. 104 (1925).

Having determined that the Section 443.151(6)(c), supra, defenses are available to claimants ordered to make repayment, we observe from the record that the instant claimant presented the referee with several colorable arguments concerning these defenses. The referee should not have ignored these arguments. See Gilles v. Department of Human Resources Development, 11 Cal.3d 313, 521 P.2d 110, 113 Cal. Rptr. 374 (1974).

Accordingly, this cause is remanded to the Unemployment Appeals Commission with directions to further remand it to the appeals referee in order that a hearing be conducted at which the claimant shall be permitted to present arguments and evidence to the effect that repayment would defeat the purpose of the Unemployment Compensation Law or would be against equity and good conscience.

Reversed and remanded with directions.

      . Indeed, this provision is of the type that has appeared in a statute which prevents the employment authority from obtaining repayment in the case of a non-fraudulent receipt of overpayment, and which leaves the authority only the remedy of recoupment. 1951 Pa. Laws 1580 § 21, reprinted in Pa. Stat. Ann. tit. 43, § 874 (Purdon 1964) historical note. Thus, it appears to be misplaced in our statute which provides for both methods of recovery.


text:
    DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. Stanley S. DAVIDSON and Judith L. Davidson, his wife, et al., Appellees.
    No. 82-422.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 1982.
    Rehearing Denied Oct. 1, 1982.
    Robert A. Ginsburg, Dade County Atty. and R. A. Cuevas, Jr., Asst. County Atty., for appellant.
    Brigham, Reynolds, Moore, Muir & Gay-lord, Miami, and Andrew H. Schuster, Fort Lauderdale, for appellees.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   FERGUSON, Judge.

Appeal of amount of compensation award in eminent domain proceeding by Dade County, successful petitioner, operated as a stay of trial proceedings, under Rule 9.310(b)(2), Florida Rules of Appellate Procedure, but did not preclude the trial court from entering a non-final order retaining jurisdiction to tax reasonable costs where, as here, the taxing of costs would not affect or interfere with the subject matter of the plenary appeal or impinge on the appellate court’s power and authority to decide the issues raised. Bailey v. Bailey, 392 So.2d 49 (Fla. 3d DCA 1981). The jurisdiction of the appellate court is exclusive only as to the subject matter of the appeal. Willey v. W. J. Hoggson Corp., 89 Fla. 446, 105 So. 126 (1925). Although the appeal of an eminent domain award automatically operated as a stay of the proceedings, the trial court may retain jurisdiction to decide matters collateral to the appeal. See Sunrise Beach, Inc. v. Phillips, 181 So.2d 169, 172 (Fla. 2d DCA 1965).

Affirmed.

      . Section 73.091, Florida Statutes (1979) has placed the entire responsibility for costs of a condemnation proceeding on the petitioner.

      . A cost judgment was not rendered here, so the issue of its reasonableness did not arise. If a cost determination is made after the entry of a final judgment and appeal has already been taken, review of the cost award is available to petitioner by separate appeal. Chatlos v. Hallandale, 220 So.2d 353 (Fla. 1969); League of Mercy Assoc., Inc. v. Walt, 376 So.2d 892 (Fla. 1st DCA 1979).