text:
    THE FLORIDA BAR. In re James Edward FERGUSON.
    No. 60502.
    Supreme Court of Florida.
    Sept. 24, 1981.
    Dennis B. Freeman, Miami, for petitioner.
    John F. Harkness, Jr., Executive Director, and Stanley A. Spring, Staff Counsel, Tallahassee, and Cynthia Prettyman, Bar Counsel, Fort Lauderdale, for The Florida Bar, respondent.
   PER CURIAM.

This matter is before the Court on Petitioner’s Petition for Leave to Resign Without Leave to Reapply, pursuant to Florida Bar Integration Rule, article XI, Rule 11.-08(2) and (6).

The Petition states:

“1. Petitioner is and at all times hereinafter mentioned was a member of The Florida Bar subject to the jurisdiction of the Supreme Court, The Florida Bar Code of Professional Responsibility, and The Florida Bar Integration Rule.
2. That on or about the 17th day of April, 1980, the Florida Supreme Court in Case No. 58,906 temporarily suspended Petitioner, James Edward Ferguson, Jr., from the practice of law pursuant to Florida Bar Integration Rule, article XI, Rule 11.10(6).
3. Petitioner, James Edward Ferguson, Jr., has retained counsel in this matter and is acting freely and voluntarily with the advice and assistance of counsel.
4. The following constitutes a statement of all past and pending record disciplinary actions and criminal proceedings in which Petitioner has been a defendant.
5. In The Florida Bar v. James Edward Ferguson, Jr., Case No. 20B80F16, it is alleged that:
a. In February of 1980, Petitioner, James Edward Ferguson, Jr. represented Ms. Lucille Dow in a real estate transaction wherein Ms. Dow was to purchase a condominium from a Mr. and Mrs. Ern E. Brown.
b. Ms. Dow, a client of Petitioner, James Edward Ferguson, Jr. deposited in trust with Mr. Ferguson the amount of $25,750.79 to purchase a condominium.
c. On or about February 21, 1980, Petitioner, James Edward Ferguson, Jr., tendered to the sellers, Mr. and Mrs. Brown, the amount of $25,706.59 which was drawn on Petitioner’s escrow account.
d. Mr. and Mrs. Brown received Petitioner’s escrow check in the amount of $25,-706.59.
e. On or about February 25, 1980, the Browns deposited Petitioner’s escrow account check drawn on Citizens National Bank of Naples, Florida, into the Exchange National Bank of Lee County, Fort Myers, Florida.
f. The check drawn on Petitioner’s escrow account in the amount of $25,706.59 was returned marked “insufficient funds”.
g. The Browns made unsuccessful attempts to contact Petitioner to determine the disposition of the funds due to them.
h. Petitioner failed to account for and deliver the funds to the Browns.
i. On or about March 14,1980, Petitioner executed a Waiver of Probable Cause Determination Hearing before a grievance committee of The Florida Bar pertaining to the above described matter.
j. Petitioner stipulated to a temporary suspension, and admitted that he had misappropriated client’s trust account funds in violation of The Florida Bar Integration Rule, article XI, Rule 11.12(A) and Disciplinary Rule 9-102(B).
6.In The Florida Bar v. James Edward Ferguson, Jr., Case No. 20B80F21, it is alleged that:
a. In August of 1979, Petitioner represented Mr. and Mrs. Jack H. Scott in a real estate transaction wherein Mr. and Mrs. Scott were the sellers of a certain piece of real estate.
b. As a result of the sale of said property, Mr. and Mrs. Scott were to receive approximately $39,924.71 in cash.
c. Petitioner placed the amount of $39,-924.71 into his escrow account at the Citizen’s National Bank of Naples, Florida.
d. On or about September 6, 1979, Petitioner delivered to Mr. and Mrs. Scott a check drawn on his escrow account in the amount of $39,924.71.
e. Mr. and Mrs. Scott deposited the check given to them by Petitioner. The check was returned for reason of insufficient funds.
f. Petitioner failed to properly account for and deliver in a timely manner funds he was required to hold for Mr. and Mrs. Scott in his trust account.
g. On or about March 14, 1980, Petitioner executed a Waiver of Probable Cause Determination Hearing before a grievance committee of The Florida Bar pertaining to the above described matter.
h. Petitioner in his Waiver agreed and stipulated that the check drawn on his escrow account and delivered to Mr. and Mrs. Scott was returned for reason of insufficient funds and that on or about October 16, 1969, the funds due Mr. and Mrs. Scott were finally delivered to them, some 66 days after closing.
7. In The Florida Bar v. James Edward Ferguson, Jr., Case No. 20B79F15, it was alleged that:
a. In August of 1977 Petitioner was retained by the estate of William R. Nash to act as an ancillary personal representative.
b. Petitioner was requested to close out the estate and to rescind a contract entered into by the estate of William R. Nash.
c. Petitioner failed to close the estate of William R. Nash or rescind the contract the estate had entered into.
d. Based on the above recited facts, on October 26,1979, Twentieth Judicial Circuit Grievance Committee “B” found that there was Probable Cause for further disciplinary proceedings against Petitioner.
e. On April 29, 1980, the Board of Governors of The Florida Bar privately reprimanded Petitioner and Petitioner was ordered to pay costs.
f. The costs in this case in the amount of $100.00 have not been paid.
8. In The Florida Bar v. James Edward Ferguson, Jr., Case No. 20B80F29, it is alleged that:
a. On January 28, 1981, Twentieth Judicial Circuit Grievance Committee “B” found that there was Probable Cause for further disciplinary proceedings against Petitioner in Case No. 20B80F29 based on the following facts:
b. That William Holland III contracted with Petitioner for the sale of his home in Naples, Florida.
c. That William Holland III signed the contract for the sale of his home, but signed no other documents. William Holland III never signed the deed to convey his property, nor did he authorize Petitioner to sign the deed, although the deed prepared by Petitioner was recorded on March 7, 1980 in O.R. Book 858, Page 1759.
d. On February 14, 1980, Petitioner drew a check on his general account made payable to William Holland III in the amount of $32,000.
e. Mr. Holland negotiated the check with the Exchange National Bank of Montgomery, Alabama, which check was subsequently returned for insufficient funds.
f. Petitioner never satisfied the check and could not be located by William Holland III.
9. In The Florida Bar v. James Edward Ferguson, Jr., Case No. 20B80F36, it is alleged that:
a. On January 28, 1980, Twentieth Judicial Circuit Grievance Committee “B” found Probable Cause for further disciplinary proceedings against Petitioner in Case No. 20B80F36 on the following facts:
b. On December 15, 1979, Shelly J. Cheatham retained James Edward Ferguson, Jr., to represent her in a personal injury case resulting from an automobile accident.
c. As a result of the accident, there was an automobile property damage loss and the Crum and Forster Insurance Company issued a draft on February 19, 1980 made payable to Shelly Cheatham and J. Edward Ferguson in the amount of $1,634.54 for Ms. Cheatham’s property damage loss.
d. The draft was deposited by James Edward Ferguson, Jr., in his account on February 25,1980, with the endorsement of Shelly Cheatham, although Ms. Cheatham never signed the check nor did she authorize James Edward Ferguson, Jr., to sign her name to the check.
e. Ms. Cheatham made demand upon James Edward Ferguson, Jr., for the $1,634.53 reimbursement.
f. James Edward Ferguson, Jr., never reimbursed Shelly Cheatham, nor has he responded to her demands.
10. In The State of Florida v. James Edward Ferguson, Jr., Case No. 80-793-CF—A-31-CTC in the Circuit Court in and for Collier County, Florida (pending) it is alleged that:
a. On February 22, 1980, James Edward Ferguson, Jr., obtained property in return for a worthless check contrary to Florida Statute § 832.05.
b. It is alleged that James Edward Ferguson, Jr., obtained a warranty deed from Timothy Haines by issuing a check in the amount of $25,706.59 which check was drawn on the escrow account of James Edward Ferguson, Jr. The check was returned for insufficient funds.
11. In The Florida Bar v. James Edward Ferguson, Jr., Case No. 20B81F18 (pending) it is alleged that:
a. James Edward Ferguson, Jr., was retained by Mr. and Mrs. Walter Murzyn to represent them in the purchase of real estate in Marco Island, Florida.
b. Mr. and Mrs. Murzyn mailed James Edward Ferguson, Jr., a certified check on April 24, 1980 in the amount of $4,687.33.
c. The closing on the property did not take place, and James Edward Ferguson, Jr., thereafter, has failed to mail the checks for closing or to answer telephone calls placed to him by Mr. and Mrs. Murzyn.
d. James Edward Ferguson, Jr., deposited the certified check in the amount of $4,687.33 in his escrow account, and failed to return the funds to the Murzyns.
12. Petitioner believes that the public interests will not be adversely affected by the granting of this petition and that permitting Petitioner to resign without leave to reapply will not adversely affect the purity of the Courts nor hinder the administration of justice nor the confidence of the public in the legal profession. In light of this Court’s opinion in The Florida Bar v. Mattingly, 342 So.2d 508 (Fla.1977) that a disbarment may not be permanent, that Petitioner is consenting to the most serious discipline that can be imposed upon a member of The Florida Bar, that is, Petitioner is consenting to resign from The Florida Bar and never again be allowed to practice law in the State of Florida.
13. Petitioner understands that he would generally be liable for any costs incurred by The Florida Bar in prosecuting disciplinary proceedings against him. Therefore, the Petitioner is willing to reimburse The Florida Bar for the costs incurred to date in the disciplinary proceedings that are listed as pending in this petition.
14. Petitioner agrees to cooperate with any Client Security Fund investigation conducted by The Florida Bar and understands that he will remain personally liable to make restitution in the above described cases.
15. Petitioner is no longer actively engaged in the practice of law and is currently residing in the State of Georgia.
16. Petitioner has consulted counsel in this matter.
The Florida Bar having filed its response supporting the Petition for Leave to Resign on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.-08(3) are fully satisfied, the Petition for Leave to Resign is hereby approved and it is ordered that:
1. Petitioner is granted leave to resign without leave to reapply;
2. Costs in the amount of $1,023.00 are taxed against Petitioner;
3. Petitioner is required to furnish to Staff Counsel of The Florida Bar an inventory of any pending files and a status report on each file; and
4. Petitioner is required to furnish a copy of this Court’s order granting his leave to resign to any of his clients, as well as an affidavit to Staff Counsel listing those clients to whom a copy was furnished.

It is so ordered.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Herbert W. ABRAMSON, Respondent.
    No. 60964.
    Supreme Court of Florida.
    Oct. 1, 1981.
    John A. Weiss, Discipline Counsel, Tallahassee, and Robert D. Rosenbloom, Asst. Staff Counsel, Miami, for complainant.
    Herbert W. Abramson, in pro per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline to violations of Disciplinary Rules 2-110(A)(2) and 6-101(A)(3) of The Code of Professional Responsibility. We approve the Petition, and we hereby reprimand Respondent, Herbert W. Abram-son, for these violations. The publication of this order in Southern Reporter shall serve as Respondent’s public reprimand.

Costs in the amount of $50.00 are hereby taxed against the Respondent.

It is so ordered.

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


author: DOWNEY, Judge.

text:
    Gary S. COLEMAN, Appellant, v. Sharon L. COLEMAN, Appellee.
    No. 80-493.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.
    Thomas E. Brandt of the Law Office of Thomas E. Brandt, Fort Lauderdale, for appellant.
    James A. Week of Week & Week, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

The husband in a dissolution of marriage proceeding appeals the final judgment which, among other things, awarded him $3400 as his interest in the appreciation of the marital residence and for work done thereon during the short term marriage of the parties.

Prior to the marriage the parties entered into a prenuptial agreement in which they had agreed that the marital residence would remain the property of the wife. However, if the property appreciated during the marriage they were to equally divide the value of the appreciation. The final judgment stated “[tjhat by virtue of the Pre-nuptial Agreement, the husband is entitled to an equity of $3400 in the property.” At the close of the trial the court announced to counsel that the property had increased $4800 in value during the marriage; that each party was entitled to one-half of the appreciation; and in addition, the husband was entitled to $1000 for work he had done on the house. In reaching this conclusion the trial judge stated, “It has been my experience generally that property appreciated one percent a month during this period of time.” This would appear to be the basis upon which the trial judge made his determination of the appreciated value of the property, because there is no other competent evidence in the record upon which that determination could be made.

From our perusal of the record and briefs we conclude that the ends of justice would be best served by a remand of this case for further proceedings so that each side can adduce evidence of the appreciated value of the property.

Accordingly, that portion of the final judgment finding the appreciated value of the property was $4800 is reversed and the cause is remanded for further proceedings consistent with this opinion.

HERSEY and HURLEY, JJ., concur.


author: LETTS, Chief Judge.

text:
    SANDALFOOT SOUTH ONE, INC., and Sandalfoot South Two, Inc., Appellants, v. SANDALFOOT COVE COUNTRY CLUB, INC., a Florida Corporation, Appellee.
    No. 80-174.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.
    Rehearing Denied Nov. 4, 1981.
    Rod Tennyson of Powell, Tennyson & St. John, P.A., West Palm Beach, for appellants.
    David D. Welch of Musselman, Welch & Korthals, P.A., Pompano Beach, for appel-lee.
   LETTS, Chief Judge.

Following close upon the heels of our most recent Cole v. Angora Enterprises, Inc. decision, 403 So.2d 1010 (Fla. 4th DCA 1981), comes yet another condominium dispute over the'validity of a monthly payment escalation clause in a “recreation agreement.” Further considered is the question of whether the particular “agreement” here involved is encompassed by Section 718.401(8), Florida Statutes (1979). We reverse the trial court’s holdings that the escalation provision is enforceable and that the recreation agreement is not governed by Section 718.401(8).

As we did in Cole v. Angora, supra, we must first answer the question of whether the lessor consented to the particular statute’s incorporation into the terms of the contract in the case now before us. Once again we believe the answer is “yes” and once more we find support for our conclusion in Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G, Condominium Association, 361 So.2d 128 (Fla.1978).

Unlike the Century Village language, vis-a-vis the Angora Enterprises language set forth in the Century Village case, the language in the declaration sub judice is not “virtually identical.” Nonetheless it is substantially similar as can be seen by the comparison set forth below:

CENTURY VILLAGE DECLARATION
[the developer] hereby states and declares that said realty, . . . together with improvements thereon, is submitted to Condominium ownership, pursuant to the Condominium Act of the State of Florida, F.S. 711 Et Seq. (hereinafter referred to as the “Condominium Act”), and the provisions of said Act are hereby incorporated by reference and included herein thereby .... The “Condominium Act” referred to above is defined in Section 1(G) as follows:
Condominium Act means and refers to the condominium act of the State of Florida (Florida Statutes 711, et seq.) as the same may be amended from time to time. 361 So.2d 128,133. (emphasis in original).
DECLARATION NOW BEFORE US
The purpose of this Declaration is to submit the lands described and improvements described and to be constructed thereon to the condominium form of ownership and use in the manner provided in Chapter 711 of the Florida Statutes, herein called the “Condominium Act.” Except where provided in this Declaration, the Articles of Incorporation of Sandalfoot South One, Inc., a Florida corporation not for profit, hereinafter sometimes called the “Association,” the By-Laws or in lawful amendments to these instruments, the provisions of said Chapter 711, Florida Statutes, as amended from time to time and this Declaration the Articles of said Corporation, and By-Laws as lawfully amended from time to time, shall govern this Condominium and the rights, duties, and responsibilities of owners of condominium parcels therein, (emphasis supplied).

We note, significantly, that the provision anticipating amendments to the statute “from time to time” appears here as it did in Century Village and Cole v. Angora, and this coupled with the obvious substantial similarity in content and portent, persuades us that the Century Village case out of the Supreme court controls. Accordingly, Section 718.401(8) is applicable and the escalation clause unenforceable.

Passing now to the second question of whether the particular “recreation agreement” in this case is subject to Section 718.401(8), we note several unusual features of this agreement which set it apart from the normal long-term recreational document. Most notably, the Appellee argues that this particular instrument is nonexclusive in the sense that the world outside the condominium is also eligible to use the facilities as well as the unit owners. Therefore, it is argued that what we have here is “. . . not a lease or rental agreement [but] an easement [which] cannot be construed as a lease by definition.” Therefore as the Ap-pellee further argues, “since it is not a lease, it cannot be affected by a statute prohibiting escalation clauses in condominium recreational leases or rental agreé-ments.... It grants no more than a nonexclusive privilege to use country club facilities along with others who are not condominium residents,”

When it is pointed out that the language of the current statute includes escalation clauses in any “agreements for recreational facilities” and that whatever else the subject contract is not, it is inescapably an agreement, the Appellee responds that the use of the word “agreement” by itself takes it out of context and that inherently the statute intends rental agreements only, rather than agreements generally.

The specific language of Section 718.-401(8), Florida Statutes (1979) states in part,

(a) It is declared that the public policy of this state prohibits the inclusion or enforcement of escalation clauses in leases or agreements for recreational facilities, land, or other commonly used facilities serving condominiums, and such clauses are hereby declared void for public policy. For the purposes of this section, an escalation clause is any clause in a condominium lease or agreement which provides that the rental under the lease or agreement shall increase at the same percentage rate as any nationally recognized and conveniently available commodity or consumer price index.

Analyzing this statutory language which seems perfectly clear, it would appear that the agreements intended to be affected by the statute would be those for recreational facilities involving periodic payments and serving condominiums. This being so we hold the statutory language is applicable to the instant “recreation agreement.”

Participation in this agreement by the unit owners is not like the exercise of one’s free choice to join the country club down the road. As we read the agreement, the unit owner has to participate for a span of 40 years. If he fails to pay the monthly fee the agreement secures payment by way of a vendor’s lien on the unit. Moreover, the provisions of the agreement are incorporated into and made a part of the Declaration “as covenants running with the land of the condominium parcel.” In short this is a compulsory long-term agreement to pay for the use of recreational facilities incident to ownership of condominium units. To us that is exactly where Section 718.401(8) is aimed and the cat simply cannot be skinned another way by providing for outside membership as well.

As to the remaining arguments set forth in the Appellee’s brief, we find them, (1) already answered in our Cole v. Angora decision, (2) without merit, or (3) unnecessary to our conclusion.

Finally, aware that we have already certified the issues here discussed in Cole v. Angora and continuing in the belief that involved are questions of great public importance, we likewise certify this entire decision to our Supreme Court, in the belief that the issues it will pass upon in Cole v. Angora are inextricably woven with the issues raised in this accompanying cause. Specifically we ask the question of whether the lessor expressly consented to the incorporation of Section 718.401(8), Florida Statutes (1979) by use of the language herein set forth and also propound the question of whether the instant nonexclusive recreation agreement is encompassed by the same provision of the statute.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

HERSEY and GLICKSTEIN, JJ., concur.

      . See also the very recent decision in Coral Isle East Condominium v. Snyder, 395 So.2d 1204 (Fla. 3d DCA 1981).

      . The language of the agreement obviously contemplates additional fees to use many of the various facilities, the monthly fee being in effect, the right to general admission at the gate.


author: FERGUSON, Judge.

text:
    Jo Ann AVERY, as Personal Representative of the Estate of James Avery, Deceased, and for the use and benefit of Cynthia Ann Avery and Charles Mark Avery, minors, surviving children of James Avery, Deceased, and Jo Ann Avery, individually, Appellants, v. Donald OWEN and City of Sweetwater, Appellees.
    No. 80-2318.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Rehearing Denied Oct. 21, 1981.

      Daniels & Hicks and Sam Daniels, Head-ley & Headley, Miami, for appellants.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and R. Owen Ricker, Jr. and Susan J. Cole, Miami, for appellees.
    Robert A. Ginsburg, County Atty. and Ralph C. Rocheteau, Asst. County Atty., for Metropolitan Dade County as amicus curiae.
    Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   FERGUSON, Judge.

Though we agree that defendants-appellees acted as special agents of Metropolitan Dade County in this case, we find that an ambiguity exists as to whether the parties to the release intended the word “agents” to include appellees. The City of Sweetwater is a political subdivision distinct from Metropolitan Dade County. Ap-pellees became temporarily vested as officers of Dade County when they responded to an emergency call for help from the County. Florida law does not hold that discharge is allowed only to those defendants specifically named, but it does require a clear manifestation of intent to discharge. Hurt v. Leatherby Insurance Co., 380 So.2d 432 (Fla.1980). Appellant released “Metropolitan Dade County, its officers, agents, and employees” and defendant “Edward Hafner”, who as a Metropolitan Dade County Officer is without question an agent of the County. The specific inclusion of agent Hafner and the failure to name Owen and the City of Sweetwater who may be considered “agents” in this case only because they responded to an emergency situation, creates a question of intent precluding entry of summary judgment. Hurt, supra.

Reversed.


text:
    ORKIN EXTERMINATING COMPANY, INC., Appellant, v. Charles R. CLAY and Linda K. Clay, his wife, Ronald Dale Yost and Erna Yost, his wife, and Jacksonville National Bank, a national banking corp., Appellees.
    Nos. 80-1479, 80-1480.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 1981.
    Rehearing Denied Oct. 15, 1981.
    J. Lester Kaney of Cobb & Cole, Daytona Beach, for appellant.

      J. David McFadden, Daytona Beach, for appellees Charles R. Clay and Linda K. Clay, his wife.
    James H. Post of Smith, Hulsey, Schwalbe & Nichols, Jacksonville, for appel-lee, Jacksonville National Bank.
    No appearance for appellee Yost.
   PER CURIAM.

That portion of the judgment which awards punitive damages is reversed and this cause is remanded for a new trial under the dictates of the law established in Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

DAUKSCH, C. J., and SHARP and CO-WART, JJ., concur.


author: SHARP, Judge. SHARP, Judge.

text:
    Emily GISMONDI and Julia Tessari, residents of Michigan, Appellants, v. UNITED FARM AGENCY OF FLORIDA, INC., et al., Appellees.
    No. 80-1322.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 1981.
    On Rehearing Oct. 14, 1981.
    Robert B. Woman, Orlando, for appellants.
    Benjamin T. Shuman, Orlando, for appel-lees.
   SHARP, Judge.

We reverse the award of attorney’s fees and costs. See Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980).

REVERSED.

DAUKSCH, C. J., and COWART, J., concur.

ON PETITION FOR REHEARING

SHARP, Judge.

The award of costs was reversed due to an oversight by the Court, a fact called to our attention by appellees in a Petition for Rehearing. Accordingly, we grant the Petition for Rehearing and revise our opinion to affirm the award of costs and reverse the award of attorney’s fees.

DAUKSCH, C. J., and COWART, J., concur.


text:
    James William HARGAN, Appellant, v. Dorothy E. HARGAN, Appellee.
    No. 80-1228.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 1981.
    Rehearing Denied Oct. 13, 1981.
    James M. Spoonhour of Lowndes, Dros-dick, Doster & Kantor, P. A., Orlando, for appellant.
    Aldo Icardi, P. A., Winter Park, for ap-pellee.
   PER CURIAM.

AFFIRMED.

Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

ORFINGER, COBB and COWART, JJ., concur.


author: GREEN, OLIVER L., Jr., Associate Judge.

text:
    STATE of Florida, Appellant, v. Ed McMANUS and Ludwell E. O’Quinn, Sr., Appellees.
    No. 80-1092.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Rehearings Denied Nov. 4, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    Robert T. Adams, Marianna, for appellee-McManus.
    P. D. Aiken, Fort Lauderdale, for appel-lee-O’Quinn.
   GREEN, OLIVER L., Jr., Associate Judge.

The appellees were charged by information with criminal conspiracy to deliver cannabis in excess of 100 pounds. The trial judge granted the appellees’ motion to suppress the evidence. The State appeals this order. We reverse.

On July 25, 1978, the State Attorney for the Seventeenth Judicial Circuit authorized an application for an order of interception to be made by Detective James P. Harn, of the Hollywood, Florida Police Department. Pursuant to the authorization, Detective James P. Harn and Detective William Mat-terly made a timely appearance before a circuit court judge, who read the application and then proceeded to administer an oath to the said Detective James P. Harn. Detective Harn signed his name to the application and affidavit in the presence of the circuit judge. The circuit judge, having thus reviewed the application and having administered the oath, neglected to sign his name thereon, to affix a jurat, the date, or his seal of office. The circuit judge signed an accompanying order of custody and order authorizing interception. Evidence in the form of cannabis was seized as a result of information obtained from the oral interception. This evidence was suppressed by order of the trial judge, who was not the judge that signed the intercept order.

There are two points on appeal. The first point is directed to a holding by the trial judge that the state attorney was without authority to authorize a municipal police officer to apply for an order of interception. This order was entered prior to our ruling in the case of State v. Birs, 394 so.2d 1054 (Fla. 4th DCA 1981), wherein it was held that the state attorney was empowered to authorize a police officer to make application for interception. (Also see State v. McGillicuddy, 342 So.2d 567 (Fla. 2nd DCA .1977)). A distinguishing factor is that in the Birs case, the officer was on special assignment to the state attorney’s office, whereas, in this case, there is no reference to any such appointment.

While this opinion should not be read as an encouragement for state attorneys to designate their authority in this fashion, neither do we find that this arrangement is proscribed by 18 U.S.C. Section 2516(2) or Section 934.07, Florida Statutes (1975).

The second point on appeal is that the trial judge erred in suppressing the evidence even though the application and affidavit did not bear a jurat, the date, the issuing judge’s signature, or his seal of office. Detective James P. Harn and Detective William Matterly testified in great detail about the circumstances under which they appeared before the circuit judge for the purpose of obtaining the order of intercept. The circuit judge before whom Detectives Harn and Matterly appeared also testified as to the occurrence of the transaction; however, he was less clear on the details of what occurred.

The conclusion is inescapable that the failure of the circuit judge to sign the application and affidavit was an oversight. We are not impressed with whatever question might linger concerning the wording of the oath that was administered by the circuit judge to Detective Harn. It is reasonable to assume that a circuit judge, in the usual course of his duties, would administer a lawful oath pursuant to F.S. 92.50. Neither do we conclude that the explained absence of a jurat or court seal is fatal.

We are left with uncontroverted evidence that the affidavit and application in this case was in all other regards in compliance with Title 18, U.S.C., Section 2516(2), Section 2518, and Chapter 934 Florida Statutes. The mere administrative oversight of the circuit judge failing to affix his signature, a jurat, and seal, will not destroy the otherwise lawful force and effect of the order of custody and order of interception which was properly sighed by him.

This decision is not to be read to condone significant acts of nonfeasance on the part of those applying for and issuing such orders. This decision should be read as holding that official oversights, if satisfactorily explained, will not constitute fatal defects, where the same are not proscribed by law, and the defendant is not prejudiced. Hoffman v. State, 397 So.2d 288 (Fla.1981); State v. Buffa, 347 So.2d 688 (Fla. 4th DCA 1977); Johnson v. State, 339 So.2d 667 (Fla. 2nd DCA 1976); Cain v. State, 287 So.2d 69 (Fla.1973); Arnold v. State, 83 So.2d 105 (Fla.1955).

We reverse the order granting the motion to suppress and remand for further proceedings.

REVERSED and REMANDED.

BERANEK, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    Dereck CUNNINGHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 80-3.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.
    Rehearing Denied Oct. 21, 1981.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   FERGUSON, Judge.

Dereck Cunningham appeals from an adjudication of guilt and sentencing on the charge of burglary of a structure. We reverse on two grounds.

First, we find the prosecutor committed reversible error by commenting on the defendant’s right to remain silent. In his closing argument, the prosecutor stated:

That raises two questions: The position that the fingerprint, was found inside the door — keep that in mind — approximately the middle of the door in the inside portion. That is very important, how that left hand, little finger got in there. That has not been explained in this case and I think that counsel owes you an explanation for that.

This statement went beyond mere comment on the uncontradicted testimony of witnesses. See, e. g., White v. State, 377 So.2d 1149 (Fla.1979). Defense counsel immediately objected and moved for a mistrial. The motion was denied, but the issue preserved for appeal. The prosecutor’s comment is clearly susceptible of being interpreted by the jury as referring to a criminal defendant’s failure to testify and as such constitutes reversible error. David v. State, 369 So.2d 943 (Fla.1979); Trafficante v. State, 92 So.2d 811 (Fla.1957). This error cannot be cured by cautionary instructions to the trial jury and is not subject to the harmless error rule. Clark v. State, 363 So.2d 331 (Fla.1978); Willinsky v. State, 360 So.2d 760 (Fla.1978); Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975); Peterson v. State, 405 So.2d 997 (Fla. 3d DCA 1981); Watkins v. State, 363 So.2d 575 (Fla. 3d DCA 1978); Martin v. State, 356 So.2d 320 (Fla. 3d DCA 1977); Thomas v. State, 342 So.2d 991 (Fla. 3d DCA 1977), cert. denied, 353 So.2d 679 (Fla.1977); Smith v. State, 342 So.2d 990 (Fla. 3d DCA 1977); Fla.R. Crim.P. 3.250.

We find a second and independent grounds .for reversal in the failure to instruct the jury on the maximum and minimum sentences. In Tascano v. State, 393 So.2d 540 (Fla.1980), the Supreme Court held that the language of Florida Rule of Criminal Procedure 3.390(a) makes mandatory upon request of either the state or the defendant, the giving of an instruction on the maximum and minimum sentences which may be imposed for the offense for which the accused is on trial. Here no instruction on any sentences was given. The record indicates that at the charge conference, Cunningham requested that the jury be instructed as to penalties and that, after the jury was instructed and before it retired to consider its verdict, Cunningham objected to the Court’s refusal to give the penalty charges. We believe this is sufficient to preserve the point on appeal. See Williams v. State, 399 So.2d 999 (Fla. 3d DCA 1981). See also footnote 1 of Williams, supra, stating that “[p]ost-Tascano decisions have uniformly applied the Tasca-no ruling to defendants whose trials were concluded before the date of the Tascano decision, June 5, 1980, and whose appeals were then pending or taken thereafter”. Id. at 1000. We do not deem the lack of transcript at that part of the charge conference which discussed the request for the penalty instructions to be of any consequence. Cunningham’s objection and times of objection are clearly recorded and made part of the record. The jury was instructed on lesser included offenses; the jury was not instructed on any penalties whatsoever. Defendant clearly requested specific jury instructions on penalties and was denied these instructions. Under the circumstances of this case, we find the issue preserved for appeal.

We do not discuss the merits of appellant’s third point on appeal.

Reversed and remanded for new trial.


author: HUBBART, Chief Judge.

text:
    The STATE of Florida, Appellant, v. Jorge ESCOBEDO, Appellee.
    No. 80-1513.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.
    Rehearing Denied Oct. 21, 1981.

      Janet Reno, State Atty., and Jerald S. Beer, Asst. State Atty., for appellant.

      Solomon & Mendelow and Harold Mende-low, Miami Springs, for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   HUBBART, Chief Judge.

The central question presented for review by this appeal is whether it is a forgery proscribed by Section 881.01, Florida Statutes (1979), for a person to make a false birth certificate with the name of a fictitious public office affixed thereto with intent to injure or defraud another. We hold that such an act constitutes a forgery of a public record under Section 881.01, Florida Statutes (1979), so long as: (1) the fictitious public office affixed thereto otherwise purports to be a genuine public office; and (2) the birth certificate is on its face of some apparent legal efficacy. We, accordingly, reverse the order under review which dismissed the information in this cause and remand for further proceedings.

I

The defendant Jorge Escobedo was charged by information with three counts of forgery [831.01, Fla.Stat. (1979)] in the Circuit Court for the Eleventh Judicial Circuit of Florida. Each count charged the defendant with the forgery of a certain certificate of birth bearing the name of the STATE REGISTRAR, presumably of THE STATE OF NEW YORK, as affixed thereto, with intent to injure or defraud a named undercover police officer and other persons to the state attorney unknown. The information, in turn, set forth in each count the allegedly forged birth certificates as follows:

The defendant filed a sworn motion to dismiss the information under Fla.R.Crim.P. 3.190(c)(4) on the ground that there were no material disputed facts in the cause and that the undisputed facts did not establish a prima facie case of guilt against the defendant. The motion relied on the fact— conceded to be true by the state in its subsequently filed traverse — that there is no such public office in the State of New York as the State Registrar, the office being entirely fictitious. It was urged by the defendant that he, therefore, could not lawfully be found guilty of forgery under Section 831.01, Florida Statutes (1979), as one cannot commit a forgery by making an otherwise false birth certificate if he affixes thereto the name of a fictitious public office. The trial court agreed and dismissed the information. The state appeals from this order, which appeal we have jurisdiction to entertain. § 924.07(1), Fla.Stat. (1979); see also Fla.R.App.P. 9.140(c)(1)(A).

II

“Our forgery statute, F.S. § 831.01, F.S.A., makes whoever ‘forges’ documents of specified classes ‘with intent to injure or defraud any person’ liable to a maximum of [five] years’ imprisonment. This statute does not repeal the common law, but merely enlarges the offense.” Green v. State, 76 So.2d 645, 646 (Fla.1954). There are three essential elements to the crime of forgery under the above statute.

First, there must be “ ‘the making of a writing which falsely purports to be the writing of another.’ ” Green v. State, 76 So.2d at 647; see also Rapp v. State, 274 So.2d 18, 19 (Fla. 4th DCA), cert. discharged, 281 So.2d 193 (Fla.1973); Davis v. State, 111 So.2d 459, 461 (Fla. 1st DCA 1959). Central to this element is that the writing in its entirety must falsely purport to be the genuine writing of a third person — someone other than the accused— whether that third person is, in fact, a real person, Davis v. State, supra, or a fictitious person, Green v. State, supra; Folk v. State, 192 So.2d 44 (Fla. 3d DCA 1966). In this connection, the writing must not merely contain a lie; the writing itself must be a lie, a lie relating to the genuineness of the entire instrument. W. Lafave & A. Scott, Criminal Law 671 (1972); R. Perkins, Criminal Law 345 (2d ed. 1969). Moreover, the term “writing” as used here is not limited to handwriting but also includes typewriting, printing, stamping, and engraving. Scarborough v. State, 82 Fla. 304, 89 So. 805 (1921); R. Perkins, Criminal Law 342 (2d ed. 1969).

Second, “the instrument forged must be upon its face, were it genuine, of some apparent legal efficacy. .. . ” King v. State, 43 Fla. 211, 31 So. 254 (1901) (syllabus by court, no. 2). On the other hand, “[a] mere brutum fulmen, on its face utterly valueless and of no binding force or efficacy for any purpose of harm, liability or injury to any one, cannot be the subject of forgery.” Id. at 219, 31 So. at 254. Section 831.01, Florida Statutes (1979), sets out the instruments which may be the subject of forgery as follows:

“. .. a public record or a certificate, return or attestation of any clerk or register of a court, public register, notary public, town clerk or any public officer, in relation to a matter wherein such certificate, return or attestation may be received as a legal proof; or a charter, deed, will, testament, bond, or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange or promissory note, or an order, acquittance, or discharge for money or other property, or an acceptance of a bill of exchange or promissory note for the payment of money, or any receipt for money, goods or other property, or any passage ticket, pass or other evidence of transportation issued by a common carrier. . . . ” [emphasis added]

Third, the writing must be made with a specific “ ‘intent to injure or defraud any person.’ ” Green v. State, 76 So.2d at 646. “[I]t is not necessary to the crime of forgery that injury should have resulted to anyone; the intent to [injure or] defraud being the essence of the offense in this regard.” Hepburn v. Chapman, 109 Fla. 133, 149 So.2d 196, 200 (1933). This element is satisfied when there is either an intent to injure [i. e., prejudice] another or an intent to defraud another. Green v. State, 76 So.2d at 648.

hi

Turning to the instant case, we have no difficulty in concluding that the defendant’s actions herein constitute a forgery under Section 831.01, Florida Statutes (1979). All of the elements of forgery under the above statute are satisfied by the facts presented in this ease.

First, it is clear that the defendant made a writing which falsely purported to be the writing of another. The defendant made out certain false birth certificates bearing the stamp of a purported official New York state public office. These instruments as stamped, purported to be genuine birth certificates executed and certified by a legitimate public office in New York. The fact that said office is, in fact, purely fictitious cannot, and does not, under the established law defeat this element of the crime. Indeed, it would be a strange rule which punished as forgery the making of false public records with requisite criminal intent only when the correct public office was affixed thereto. Fictitious, but official-sounding public office names affixed to purported public records, as here, may deceive the general public as much as do correct public office names affixed thereto, and certainly are capable of causing as much injury. We see no reason for making a distinction, as urged here, between those two types of purported public records. Both represent, in our view, false public records and both are punishable as forgery under the established law. See generally, Annot., 69 A.L.R.2d 1095 (1960); Annot., 49 A.L.R.2d 852 (1956).

Second, the instrument forged is clearly covered by Section 831.01, Florida Statutes (1979), as a public record having on its face an apparent legal efficacy. True, the birth certificates herein are certified by a non-existent public office in New York, but to the reasonable observer they look quite legitimate and apparently valid. Indeed, the certificates use public office titles —“Department of Health,” “Bureau of Vital Statistics,” “State Registrar” — bearing a strong similarity to the actual public offices in New York which register birth certificates, to wit: the New York State Department of Health and the Registrar of Vital Statistics. See footnote 1, supra. Moreover, the certificates are not valueless documents on their face — “a mere brutum fulmen” — to the careful eye. On the contrary, these certificates, if genuine, clearly have considerable legal significance in acquiring a host of benefits in our society, including such items as a passport, a driver’s license, a social security number, a voter’s registration card, a marriage certificate, and perhaps even a line of credit. Again, the fictitious nature of the public office affixed to the birth certificates cannot defeat this element of the crime. See generally, R. Perkins, Criminal Law 342-44 (2d ed. 1969).

Third, the birth certificates herein were, without question, made with an intent to injure or defraud those people who might be induced to issue the above benefits based upon the presentation of such certificates. The information here quite correctly alleges such people to be unknown to the state attorney. The fact that such people were not, in fact, injured or defrauded due to the skillful undercover police work in this case cannot defeat this element of the crime. Indeed, the defendant upon this appeal makes no contention that this element was not satisfied in the instant case.

The order under review is, accordingly, reversed and the cause is remanded to the trial court for further proceedings.

      . The New York State Department of Health, together with a number of local offices known as Registrars of Vital Statistics, have the duty of registering all births in the State of New York. N.Y. Public Health Law §§ 200, 4100, 4120, 4121, 4130 (McKinney 1977). Although the birth certificates herein correctly refer to the Department of Health, they purport to be certified by the State Registrar — when, in fact, there is no such public office in New York. It should be noted, nonetheless, that the use of such terms on the birth certificates as “Bureau of Vital Statistics,” “Department of Health” and “State Registrar” bear enough semblance to the correct public offices involved as to be entirely deceiving to the reasonable observer.

      . It was also argued below that there was no intent to injure or defraud another because of the fact — also conceded to be true by the state in its traverse — that an undercover police officer purchased the subject birth certificates from the defendant with advance police funds and was not defrauded thereby. That argument, however, has been abandoned by the defendant on appeal and has no merit, in any event, as it is not necessary to the crime of forgery that anyone be actually injured or defrauded — the intent to injure or defraud being the essence of the offense in this regard. Hepburn v. Chapman, 109 Fla. 133, 149 So. 196, 200 (1933).


author: DANIEL S. PEARSON, Judge.

text:
    Darnell Bethea TOOMBS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2238.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 1981.
    Rehearing Denied Oct. 28, 1981.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

On September 6, 1977, Toombs pleaded guilty to burglary of a dwelling and was placed on probation for four years with the special condition that he be incarcerated for three years. Toombs served the prison term. Toombs then violated a condition of his probation. On October 21, 1980, upon the revocation of Toombs’ probation, the trial court imposed a split sentence of one year and one day imprisonment to be followed by three years probation. See § 948.-01(4), Fla.Stat. (1979).

Toombs contends that he was entitled to have the three years he served as a special condition of the 1977 probation order credited against the sentence imposed in 1980. See Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981); State v. Jones, 327 So.2d 18 (Fla.1976).

The State argues that in light of Villery, a trial court should no longer be required to give credit for time served when, upon revocation of probation, it imposes a split sentence. It correctly says that if credit for time served is given, then the use of a split sentence alternative in imposing sentence upon revocation would be completely nullified when the revoked probationer has already been incarcerated for 364 days, since the credit, in every instance, will equal the maximum period of incarceration which under Villery the court can impose when it uses a split sentence alternative. The argument proceeds that because Villery specifically reaffirms the trial court’s authority to “impose any sentence which it might originally have imposed before placing the defendant on probation,” the trial court is allowed the full range of sentences, including the “split sentence alternatives,” and if giving credit for time served would defeat the use of that alternative, credit need not be given.

The problem with the State’s argument is that its conclusion flies in the face of Vil-lery’s explicit command,, that “[i]n .... revoking probation and sentencing the probationer, credit must be given for time spent incarcerated pursuant to a split sentence order.” Since the giving of credit for time served is the starting point, the proper conclusion to the State’s argument is that if giving credit would defeat the use of the split sentence alternative, then credit must be given and the split sentence alternative can no longer be used.

Certainly there is nothing in Villery that prohibits a trial court from again using such an alternative where the probationer whose probation has been revoked has been incarcerated for less than the Villery maximum under the original split sentence imposed. But in the case of Toombs and others who have served 364 days or more, the requirement that credit for time served be given effectively precludes the court from further utilization of a split sentence alternative when imposing sentence for a revocation of probation and leaves the trial court with the power to impose either any straight sentence of imprisonment it might have originally imposed or to place Toombs on probation. In short, when Villerys maximum rehabilitative “taste of prison” has been served, a defendant must either be punished with the main course or be excused from the table.

Our conclusion that Toombs is entitled to credit for time served is, however, unavailing to Toombs, who unquestionably, seeks his release. It is clear from the transcript of sentencing that when the trial court imposed this sentence upon Toombs, it was aware that Toombs had served three years in prison and fully intended that Toombs serve an additional year for having violated his probation. Indeed, the court stated: “This is over and above the time he’s served on the initial jail sentence which was I think three years.” This oral pronouncement, although not reflected in the written sentence order, controls. See Mays v. State, 349 So.2d 792 (Fla.2d DCA 1977). The oral pronouncement reflects that the trial court believed it had credited Toombs for the time he had served. The problem is simply that the method chosen by the court to implement this credit was inadequate to accomplish the court’s purpose. See Morgan v. State, 352 So.2d 161 (Fla.2d DCA 1977); Mays v. State, supra; Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975) (requiring that the written sentence reflect the precise number of days credit for time served). It is apparent that had the trial court imposed a four-year prison sentence on Toombs (who could have been sentenced, under the original offense charged, to up to fifteen years in prison when his probation was revoked) and credited Toombs with the three years served, it would have accomplished its sentencing goal. Since it was so clearly the trial court’s intent that Toombs serve an additional year in prison, and since the trial court was empowered to impose a sentence of sufficient length after crediting the time served to carry out that intent, see Stover v. United States, 400 F.2d 360 (9th Cir. 1968) (where court could have imposed a twenty-year sentence and stated that the ten-year sentence imposed was in addition to the 69 days spent in jail, no credit for time served would be given), we reject Toombs’ argument that the trial court’s technical error results in setting Toombs free. We accordingly reverse that portion of the sentence under review incarcerating the defendant for a year and a day and remand this case to the trial court for the imposition of an appropriate sentence of incarceration which will explicitly give to Toombs credit for time served.

Reversed and remanded with directions,

      . This original sentence would be invalid under Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), because the incarceration period was in excess of one year. Toombs has already served the prison term and makes no challenge to the original sentence. He remarks only that this original sentence unfairly deprived him of parole eligibility. Of course, had the question not been moot by the time Villery was decided and had Toombs challenged the 1977 sentence, the trial court could have resentenced Toombs so as to afford him that eligibility. See n. 8, infra.

      . The sentence under review was pronounced prior to the Supreme Court’s decision in Vil-lery. The rule of Villery is, however, expressly retroactive. The State, misperceiving Toombs’ complaint to be addressed to the split sentence rather than to the failure to credit time served, concedes that the one year and one day term of imprisonment exceeds by two days the incarceration period allowable under Villery v. Florida Parole and Probation Commission, supra, n. 1, which cannot “equal or exceed one year.”

      . Section 948.01(4), Florida Statutes (1979), provides:
      “Whenever punishment by imprisonment for a misdemeanor or felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court."

      . Villery groups the split sentence of Section 948.01(4) and incarceration as a condition of probation under Section 948.03(2) together as the “split sentence alternatives.” The distinction between these “alternatives,” see Lewis v. State, 402 So.2d 482 (Fla.2d DCA 1981), is immaterial to the present appeal.

      . This statement in Villery is a specific reaffirmation of State v. Jones, supra.

      . If the revoked probationer has been incarcerated for less than 364 days, then the trial court can use a split sentence alternative, the period of incarceration not to exceed 364 days less the time already served.

      . The sentence which the trial court might have originally imposed before it first placed Toombs on probation was fifteen years. See
        §§ 810.02(3), 775.082(3)(c), Fla.Stat. (1975). Thus, upon revocation the trial court could have sentenced Toombs to a term of years up to fifteen with credit for the three years of incarceration already served, State v. Jones, supra; Hutchinson v. State, 360 So.2d 1160 (Fla. 1st DCA 1978), or could have again placed Toombs on probation for a term not to exceed fifteen years, the maximum allowable prison sentence, State v. Holmes, 360 So.2d 380 (Fla. 1978); Green v. State, 392 So.2d 333 (Fla.2d DCA 1981); Townsend v. State, 378 So.2d 1313 (Fla. 1st DCA 1980), from September 6, 1977, the date when the court first placed Toombs on probation. While time served on probation need not be credited against any prison sentence imposed, § 948.06, Fla.Stat. (1975); State v. Holmes, supra, or against any probationary period imposed on revocation, see Townsend v. State, supra, the trial court could not have extended its jurisdiction over Toombs beyond fifteen years, the maximum term of probation which it could have originally imposed. In Toombs’ case, probation must end and the trial court’s supervision cease no later than September 5, 1992. Cf. State v. Smith, 360 So.2d 21 (Fla. 4th DCA 1978); State v. Sotto, 348 So.2d 1222 (Fla.3d DCA 1977); State v. Evans, 225 So.2d 548 (Fla.3d DCA 1969), cert. denied, 229 So.2d 261 (Fla. 1969), cert. denied, 397 U.S. 1053, 90 S.Ct. 1393, 25 L.Ed.2d 668 (1970) (only executive, not judiciary, has power to reduce lawful sentence after sixty days from imposition); McRae v. State, 383 So.2d 289 (Fla.2d DCA 1980) (under Section 947.16(3), Florida Statutes (1979), judiciary cannot retain jurisdiction over defendant beyond one-third of maximum sentence of imprisonment imposed).

      . As we have noted, Toombs’ only complaint is that the trial court failed to credit him with time served. Since the trial court’s intent was to have Toombs spend an additional year and a day in jail, the technical failure will be cured by a sentence of incarceration of four years and a day with credit for the three years served. Since Toombs has made no attack on the additional term of three years probation, we do not address this part of the sentence. While the probationary period is indisputably open to attack under Villery, we read Villery as requiring our action only upon a defendant’s “application to have the illegal order corrected.” ' Since a defendant asking for relief under Villery may run the risk of the trial court imposing a maximum straight time sentence of confinement . (putting aside potential jeopardy or punitive enhancement issues which clearly are not before us), it is the defendant who must choose to avail himself of Villery relief, and it is not for us to impose it upon him.


author: STONE, BARRY J., Associate Judge. ANSTEAD, Judge, PER CURIAM. ANSTEAD, Judge,

text:
    Danny M. ROBBINS and Janice L. Robbins, Appellants, v. Jim GRAHAM, et al., Appellees.
    No. 80-1352.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.
    Rehearing Denied Oct. 28, 1981.
    Joseph A. Vassallo and Allan J. Taylor of Vassallo & Varner, P. A., Palm Springs, for appellants.
    Daniel H. James of Hamilton, James, Merkle & Young, West Palm Beach, for appellees.
   STONE, BARRY J., Associate Judge.

Plaintiffs appeal an order granting defendants’ motion for new trial based upon the trial judge’s determination that the verdicts were “inconsistent.”

It is apparent on their face that each of the forms of the jury verdict signed by the foreman on behalf of the jury in fact were irregular. The jury had been furnished with six forms of verdict, some of which were intended to have been executed and some of which were intended not to have been executed depending upon the jury’s verdict. The jury was given one form of verdict in favor of the defendant, as to each separate defendant, and one in favor of the plaintiffs, as to the claim against each separate defendant, with a space provided for the amount of compensatory and punitive damages against each defendant. It was anticipated that three forms would be returned signed, one in favor of either of the plaintiff or the defendant as to the plaintiffs’ claim against each defendant, and that three forms would be returned unsigned. Instead, all of the proposed verdict forms were returned by the jury signed. However, on each of the signed verdict forms the jury did insert additional language that made those forms that should not have been signed perfectly consistent with the appropriately signed forms, thereby leaving no question as to the jurors’ intent.

The jury returned the following forms:

“WE, the jury find for the defendant, James Graham, Inc. SO SAY WE ALL.”
“WE, the jury, find for the plaintiffs and against the defendant, JAMES GRAHAM, INC., a Florida corporation and assess compensatory damages at $9,500.00, and punitive damages at $0.00. SO SAY WE ALL.”
“WE, the jury, find for the plaintiffs and against the defendant, A. R. WALTHERS and assess compensatory damages at $0.00 and punitive damages at $885.00. SO SAY WE ALL.”
“WE, the jury find for the Defendant, A. R. Walthers. SO SAY WE ALL.”
“WE, the jury, find for the plaintiffs and against the defendant, JIM GRAHAM and assess compensatory damages at $0.00. SO SAY WE ALL.”
“WE, the jury, find for the Defendant, Jim Graham. SO SAY WE ALL.”

On the first four above quoted verdict forms the jury also made a notation of “guilty,” and on the last two above quoted verdict forms the jury also made a notation of “not guilty.”

With respect to the two defendants found to be liable, and against whom damages were assessed, the jury inserted the amount of damages found against each on the forms provided for that purpose, while on the form that was intended only to be used in the event the jury had found in favor of such defendants the jury inserted in ink, clearly, the word “guilty.” As to the other defendant whom the jury obviously intended to find without liability, the jury inserted the words “not guilty” on both forms of verdict applicable to that defendant and inserted “$0.00” dollars on the form that the jury was to have used in the event that the jury had found in favor of the plaintiffs and against that defendant.

Although the forms of verdict, as returned, were in fact irregular, we find that the appellees waived these irregularities and that the appellees were not entitled to a new trial. The appellants are, accordingly, entitled to judgment in accordance with the verdicts rendered.

The intent of the jury is clear as to all issues. There is no doubt that they intended to find the defendant, James Graham, Inc. and A. R. Walthers liable for the amount of the damages set forth on the forms of verdict against each and to find the defendant, James Graham, individually, without liability to the plaintiffs.

Any possible doubt as to the otherwise clear intent of the jury was eliminated by the questioning that occurred by the court of the foreman in which the answers were unequivocal as to the intent of the jury. There is no doubt that the foreman correctly enunciated the intent of the jury inasmuch as the polling of the jury following the questioning of the foreman confirmed that each juror intended the result as stated by the foreman.

In Atlantic Coast Line R. Co. v. Price, 46 So.2d 481 (Fla.1950) the jury was considering the claims of four separate plaintiffs in four separate actions against the railroad and were furnished with two verdict forms, one for plaintiffs and one for the defendant. The jury returned the following form:

“We, the jury, find for the plaintiffs and assess their damages as follows:
For A. E. Price $0000
For Olive Price $1250.00
For Margery Price $ 300.00
For Tommy Price $ 150.00
“So say we all.”

At 482.

Just as in this case, the intent of the jury in Atlantic Coast Line R. Co. v. Price, supra, was “perfectly clear and understandable.”

The court concluded, in Atlantic Coast Line R. Co. v. Price, supra, at 483:

Although the form of the verdict was imperfect when the jury made it apply where there was a finding against one plaintiff and for the others, still we think their intent was plain, and this, after all, is the test. No objection was made at the time the verdict was presented, and we understand it did not occur to court or counsel that there was any irregularity until after the jury had dispersed. In such circumstances, exception to the form was waived. General Motors Acceptance Corporation v. Judge of Circuit Court, 102 Fla. 924, 136 So. 621.

Since the substance of the verdict was, in this case, clearly ascertainable and internally consistent, we treat the irregularities purely as a matter of form and not substance. Further, the court and counsel recognized the inconsistencies at the time the jury was still present, and under circumstances where the problem could have been corrected if a timely objection had been made and the issue re-submitted to the jury with appropriate additional instructions. It should also be noted that in this case we are not dealing with issues of bias or prejudice on the part of the jury, nor does it involve issues of a constitutional or fundamental character.

Objections to the form of the verdict, under these facts, must be timely made and failure to object resulted in a waiver by appellee. See Atlantic Coast Line R. Co. v. Price, supra; Tidwell v. Toca, 362 So.2d 85 (Fla. 3d DCA 1978); Lindquist v. Covert, 279 So.2d 44 (Fla. 4th DCA 1973); General Motors Acceptance Corp. v. Judge of Circuit Court, supra. Errors of form, where the intent of the jury is otherwise clear, should be raised on the spot, notwithstanding the fact that it might be to the defendant’s benefit to remain silent and subsequently seek a new trial. This principle is founded on the concept of fundamental fairness. Relitigation would deprive the appellants of their earned verdict and give the appellees an unearned additional bite at the apple.

We hold that the defendants’ failure to object to the otherwise irregular form of the verdicts constituted a waiver of the defects contained therein and, therefore, the defendants were not entitled to a new trial.

The judgment of the trial court granting a new trial is reversed and this cause is remanded with directions for the entry of a judgment consistent with the terms of this order and the jury’s verdict.

REVERSED.

LETTS, C. J., concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

Immediately after the verdicts were returned the jurors were polled without objection and unanimously indicated that they wished to find the corporate defendant and the defendant Walthers guilty and assess compensatory damages of $9500.00 against the corporate defendant and punitive damages of $885.00 against the individual defendant Walthers. The defendants made no claim at that time that the jury’s findings were inconsistent.

The liability of the corporate defendant, James Graham, Inc., was predicated solely on the liability of its agents, Jim Graham or A. R. Walthers. The defendants claim that the jury’s verdict was inconsistent because no compensatory damages were awarded against Walthers or Graham while damages were assessed against the corporation. If neither of the individuals are found liable, the defendants assert, then the corporation could not be liable. Hence the inconsistency. However, I agree with Judge Stone that the defendants, if dissatisfied with the apparent inconsistency, had an obligation to object before the jury was discharged. The jury could have been informed that they could not hold the corporation liable for compensatory damages without also holding one of the-individuals liable and the matter would have been resolved with the same jury. On the other hand it appears rather clear that the jury did find one of the individuals liable; i. e., the jury clearly declared that it had found Walthers “guilty” and also assessed punitive damages against him, although choosing not to assess compensatory damages against him. I agree that under this court’s decision in Lindquist v. Covert, cited in Judge Stone’s opinion, the defendants had an obligation to object to the inconsistency as to compensatory damages before the jury was discharged.

OPINION ON REHEARING

PER CURIAM.

The appellees’ petition for rehearing is denied.

LETTS, C.J., and STONE, BARRY J., Associate Judge, concur.

ANSTEAD, J., specially concurs with opinion.

ANSTEAD, Judge,

specially concurring:

Although I agree that the petition for rehearing should be denied, I note that the Third District has reached a result contrary to our own on facts not dissimilar to those involved herein. See Keyes Company v. Sens, 382 So.2d 1273 (Fla. 3d DCA 1980).


author: COWART, Judge.

text:
    Billy D. GARLAND, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 80-554.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 1981.
    Rehearing Denied Oct. 19, 1981.
    Chester A. Parker, III, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

Appellant seeks reversal on the ground that a severance should have been granted so he could call his co-defendant as a witness. There is some indication that a severance should have been granted but we find that appellant failed to present the matter in accordance with State v. Talavera, 243 So.2d 595 (Fla. 1971), and, therefore,

AFFIRM.

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


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

text:
    Donald SABIN, Appellant, v. LOWE’S OF FLORIDA, INC., a Florida corporation, d/b/a Lowe’s of Orlando, d/b/a Lowe’s, Appellee.
    No. 80-1376.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 1981.
    Rehearing Denied Oct. 13, 1981.

      Michael S. Wilson, Orlando, for appellant.
    Charles J. Collins, Jr., of Steed & Collins, Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant is the president of Placemakers Development Company, Inc. He executed a credit application with appellee. On the application in the area for signatures, “Donald Sabin as President” is typed above a line designated “Guarantor and Pledgee.” Appellant then signed his signature. Donald Sabin as President, on a second line designated “Guarantor & Pledgee.” The application contains the following pertinent statement:

If credit is extended to a corporation in which we, or either of us, or I, am an officer, or in which an interest exists, I and/or we will personally faithfully guarantee payment of all credit extended to said corporation.

Immediately above the signature appears: “NOTICE: IT IS IMPORTANT THAT YOU THOROUGHLY READ BEFORE SIGNING.”

The trial court entered judgment against Sabin, individually, and he appeals. We AFFIRM.

Appellant contends that he did not read the agreement and therefore did not understand that he was being asked to guarantee payment. On the other hand, he acknowledges that since he signed as president the corporation was bound whether he had read it or not. He states, however, that to bind him individually it would be necessary for him to sign twice, once as president and once individually.

A party has a duty to learn and know the contents of a proposed contract before he signs and delivers it and is presumed to know and understand its contents, terms and conditions. Manufacturers Leasing, Ltd. v. Florida Development and. Attractions, Inc., 330 So.2d 171 (Fla. 4th DCA 1976). In Allied Van Lines v. Bratton, 351 So.2d 344 (Fla.1977), the court said:

It has long been held in Florida that one is bound by his contract. Unless one can show facts and circumstances to demonstrate that he was prevented from reading the contract, or that he was induced by statements of the other party to refrain from reading the contract, it is binding. No party to a written contract in this state can defend against its enforcement on the sole ground that he signed it without reading it.

351 So.2d at 347-48.

Here the contract was clear. It was not long or involved. It was obvious, both from the guarantee and the designation of the signature line as “guarantor” that whoever signed was personally obligating himself. The fact that he signed it “as president” should not alter the plain and obvious meaning and intent expressed in the document. We see no reason to adopt a rule which would excuse performance if read in one instance but not in another. In this instance, in view of the brevity of the credit application, it is difficult to comprehend how appellant could miss the fact that he was obligating himself personally whether he read the document in its entirety or not.

AFFIRMED.

ORFINGER and COWART, JJ., concur.


text:
    McKinley PEEPLES, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1945.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 1981.
    Rehearing Denied Oct. 28, 1981.
    Bennett H. Brummer, Public Defender and Andrew M. Kassier, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Fowler v. State, 255 So.2d 513 (Fla.1971).


author: GRIMES, Acting Chief Judge.

text:
    Joene E. ELLIS, Appellant, v. Edwin M. ELLIS, Appellee.
    No. 81-840.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1981.

      R. Terry Rigsby of Moffitt, Hart & Miller, Tampa, for appellant.
    Paul W. Hitchens of Akerson & Swisher, St. Petersburg, for appellee.
   GRIMES, Acting Chief Judge.

This is an appeal from the denial of a motion to set aside an order terminating an ex-husband’s obligation to make further alimony payments. The order was based on a default entered against the former wife for failure to plead to a petition for modification of alimony.

The Ellises were divorced in Iowa in 1969 pursuant to a decree which ordered Mr. Ellis to pay his wife $400 a month alimony. He later moved to Florida, and in 1979 she filed a petition for registration of the foreign support order and for the determination of certain arrearages. He counterpeti-tioned for reduction of alimony. The court entered an order establishing the Iowa divorce decree as a Florida judgment and determined the amount of arrearages. Then, following a hearing, it reduced the alimony to $200 a month.

On October 3, 1980, Mr. Ellis filed a supplemental complaint seeking termination of his alimony obligations on grounds of worsened financial circumstances. The complaint was served on Mrs. Ellis in Iowa on October 10,1980, but she filed no responsive pleadings. At the request of Mr. Ellis’s attorney, the clerk of court entered a default against Mrs. Ellis on November 4, 1980, pursuant to Florida Rule of Civil Procedure 1.500(a), and by order dated December 3, 1980, the court terminated Mr. Ellis’s obligation to make further alimony payments.

On January 23, 1981, Mrs. Ellis moved to set aside the order of December 3, 1980. In her affidavit, she stated that when she was served with the supplemental complaint for modification of alimony she did not receive notice of a hearing or of a time limit for the filing of a responsive pleading. She said that she did obtain Iowa counsel and “instituted the process of obtaining counsel in Florida, again without any notice of hearing, a requirement of responsive pleading or time limit thereto.” Finally, she asserted that the termination of the alimony was contrary to her need for support and her former husband’s ability to provide it. The court denied the motion to set aside the default order, noting that the Iowa sheriff’s return reflected service of a summons which on its face called for the filing of a responsive pleading within twenty days.

Mrs. Ellis first asserts that the clerk did not have authority to enter a default without notice because of Florida Rule of Civil Procedure 1.500(b) which provides that:

When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, he shall be served with notice of the application for default.

Mrs. Ellis reasons that the papers filed on her behalf in 1979 brought the latter portion of the rule into play. This contention is without merit. In Moore v. Lee, 72 So.2d 280 (Fla.1954), our supreme court held that in proceedings to modify a final judgment, service of the pleadings upon the attorney who represented the other party in the earlier proceedings was insufficient to acquire jurisdiction. If subsequent proceedings in the same case are deemed separate to the extent that service upon the adversary’s former attorney will not suffice, we do not think that here the pleadings filed in the 1979 proceedings can carry over for the purposes of rule 1.500(b).

Mrs. Ellis’s argument that the court abused its discretion in failing to set aside the default strikes a more responsive note. In her affidavit she positively stated that she did not receive the summons at the time of the service of the supplemental complaint for modification. In her brief she points out that she had no reason to know that she would not receive a subsequent notice of the court hearing because the pri- or modification of alimony took place only after she received a notice of hearing. The court laid stress upon the Iowa deputy’s return which, without specifically describing the petition or the summons, simply recited service of “the within notice.” However, the fact that there is an original and one copy of the summons in the court file lends credence to Mrs. Ellis’s position. Under normal circumstances the copy would have been served on her and only the original filed with the court.

Florida courts have maintained a long-standing policy of liberality toward the vacating of defaults. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). This is because the law favors the resolution of controversies on the merits rather than by default when the defendant can demonstrate that his neglect was excusable and that he has a meritorious defense. Travelers Insurance Co. v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977). Thus, there is a lesser showing required to reverse the denial of a motion to vacate a default than there is to reverse the granting of such a motion. Garcia Insurance Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla.2d DCA 1977).

Under the circumstances, we think that any negligence on the part of Mrs. Ellis in failing to insure the timely filing of a responsive pleading was excusable and that she has asserted a meritorious defense. We believe that justice would be better served by a hearing on the merits before there is any change in alimony.

We reverse the judgment, set aside the default, and direct that Mrs. Ellis have an opportunity to plead and to participate in a hearing.

OTT and RYDER, JJ., concur.


author: SHAW, Judge.

text:
    LeRoy WALTON, Appellant, v. STATE of Florida, Appellee.
    No. WW-244.
    District Court of Appeal of Florida, First District.
    Sept. 24, 1981.
    Rehearing Denied Nov. 5, 1981.

      Michael E. Allen, Public Defender, and Michael M. Corin and Thomas Presnell, Jr., Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   SHAW, Judge.

The appellant challenges his conviction for grand and petty theft on the grounds that the court erred in denying his motion to suppress evidence and in refusing to dismiss the information against him.

Officer Barbour, on May 21, 1979, as a follow-up to an anonymous tip, set up surveillance of a duplex in which the appellant resided. While waiting for a back-up unit to arrive, the officer observed the appellant drive away. Barbour approached the duplex and was able to look through the door and observe a female occupant and a three-piece shelving unit fitting the description of a unit recently stolen from Dean Construction Company. The appellant was arrested and placed in the Alachua County Adult Detention Center. On May 31, 1979, while appellant was still in the Center, Officer Barbour returned to the premises with a search warrant. Entry was gained to the duplex by use of a key supplied by either Mr. Egon Klementi, the owner of the apartment complex, or a third party. Mr. Klem-enti took the officers to the rear of the duplex and unlocked a shed. The appellant was charged and convicted for theft of items found in the duplex and shed.

The conviction must be reversed. Knowledge and intent are essential elements of the offense charged. The State has attempted to obviate its burden of proof by its reliance upon the rule that possession of recently stolen goods carries with it the inference that the possessor is the guilty taker. State v. Young, 217 So.2d 567 (Fla.1968). The position taken by the State ignores the restrictive nature of the rule. The inference of guilty taking that accompanies the possession of recently stolen goods is limited by the further requirement that possession be personal, that it involve a distinct and conscious assertion of possession by the accused, and that possession must be exclusive. Griffin v. State, 370 So.2d 860 (Fla. 1st DCA 1979).

The State agrees that the duplex in which the stolen items were found was leased to the appellant and two other named occupants, Sally Walton and Patti Elizabeth King. The shed was also shared jointly by the appellant and his landlord, Mr. Egon Klementi. The evidence does not show personal or exclusive possession in the appellant. Therefore, the inference of guilty taking does not accompany the State’s case in this instance. Stripped of this inference, the State’s proof was confined to evidence that stolen goods were found in premises in which the appellant enjoyed a joint possessory right, the value of the property and ownership in someone other than the appellant. With the removal of the inference of guilty taking the State’s case against the appellant is purely circumstantial. While the crime of theft may be proved by circumstantial evidence, such evidence must be of sufficient probative force to support a legal inference of guilt beyond a reasonable doubt. The proof must not only be consistent with guilt, but also inconsistent with a reasonable hypothesis of innocence. The State’s proof in this instance does not rise to that level. The judgment appealed is reversed.

WENTWORTH, J., concurs.

WILLIAM C. OWEN, Jr., (Ret.), Associate Judge, dissenting without opinion.


text:
    Bobbie Paul MILES, Appellant, v. STATE of Florida, Appellee.
    No. WW-491.
    District Court of Appeal of Florida, First District.
    Sept. 24, 1981.
    Rehearing Denied Nov. 6, 1981.
    Gene T. Moss of Moss & Jensen, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Bobbie Paul Miles appeals his convictions on two counts of unlawful sale of a controlled substance, contending that the trial court erred in denying his motion to suppress tape recordings of conversations between Miles and one of his employees made in Miles’ home. In State v. Sarmiento, 397 So.2d 643 (Fla.1981), and Hoberman v. State, 400 So.2d 758 (Fla.1981), the Florida Supreme Court has held that the Florida Constitution prohibits the warrantless interception of tape recording of a private conversation conducted in the home. None of Miles’ other points on appeal have merit.

Accordingly, the judgment of conviction must be reversed.

BOOTH, SHAW and WENTWORTH, JJ., concur.


author: MILLS, Judge.

text:
    Ernest C. WIGGINS and Roslyn Wiggins, Appellants, v. Feltus M. LEINENWEBER, Appellee.
    No. PP-294.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1981.
    Rehearing Denied Nov. 6, 1981.

      Ernest C. Wiggins, pro se.
    Donald P. Sluder, Jacksonville, for appel-lee.
   MILLS, Judge.

This is an appeal from a final judgment upon a complaint for declaratory judgment asking the trial court to determine the amount that the plaintiffs/appellants owe on a mortgage. We reverse in part and affirm in part.

The relevant facts of this case are that appellee Feltus Leinenweber purchased a piece of property in Duval County in 1970 and encumbered the property by executing a mortgage on it at that time. In 1978 he declared bankruptcy and the bankruptcy court determined that only part of that piece of property constituted Leinenweber’s homestead and ordered that the non-homestead portion be sold at a bankruptcy sale. Due to an erroneous belief that Leinenwe-ber owned only a one-half interest in the property, the trustee advertised and sold only a one-half interest on September 7, 1977. Subsequently, it was discovered that Leinenweber had owned a entire interest in the property and the second one-half interest was sold at a bankruptcy sale held on February 22, 1978. The purchasers at both sales were the appellants, Ernest C. and Roslyn Wiggins (Wiggins), who paid $1,600.00 for the first one-half interest and $350.00 for the second.

As a result of the sales the property retained by Leinenweber and the property purchased by Wiggins were both subject to the same first mortgage lien. The documents relative to the sale, while stating that the property being sold was “subject to a valid and perfected first mortgage lien held by Jacksonville Federal Savings and Loan Association,” (emphasis supplied) did not expressly state whether the property being sold was subject to the entire mortgage lien or only a proportionate share.

I

Avoiding for the moment the procedural maneuverings involved in this case, the crux of the case taken before the trial court and argued before this court is that very question: Did Wiggins buy a portion of the entire parcel of property subject to the entire mortgage or did he buy a portion of the entire property subject to its proportionate share of the mortgage? The trial court determined that Wiggins’ portion was subject to the entire mortgage. We disagree and, for the reasons stated below, reverse the trial court on this question.

The starting point in our analysis is Ellis v. Fairbanks, 38 Fla. 257, 21 So. 107 (1897), wherein the Florida Supreme Court asserted:

It is a familiar doctrine, and sustained by many authorities, that where lands are mortgaged to secure a debt and a part of said lands are subsequently sold and conveyed by the mortgagor, the portion unsold is primarily liable under the mortgage. 21 So. at 108.

This rule is not applicable, however, where the sale is made expressly subject to the lien. When that occurs, the terms of the sale may expressly set forth the agreement as to the proportion which each part is to bear. Maurer v. Arab Petroleum Corp., 134 Tex. 256, 135 S.W.2d 87 (1940). In the absence of express agreement, however, the portions are, as between themselves, liable for their proportionate share of the debt based on their relative value on the date of conveyance. Stuyvesant Security Co. v. Dreyer, 103 N.J.Eq. 457, 143 A. 616 (1928), aff’d, 105 N.J.Eq. 585, 148 A. 920 (1930). See also Home Unity Savings and Loan Ass’n. v. Balmos, 192 Pa.Super. 542, 162 A.2d 244 (1960).

Our conclusion that Wiggins owes only a proportionate share of the mortgage does no violence to the rule of law that a purchaser at a foreclosure sale is presumed to have made allowances for prior liens in making his bid. Horne v. Smith, 368 So.2d 392 (Fla. 1st DCA 1979). Wiggins has at no time in the proceeding claimed that his property is not subject to the prior lien, nor has he denied that he made allowances for that prior lien in making his bids. His only contention is that his property is not subject to the entire prior lien, and with this contention we agree. As asserted in Stuyvesant Security Co. v. Dreyer, supra:

Where it appears, therefore, that the lands conveyed by the mortgagor were conveyed expressly subject to the lien of the mortgage, the assumption of that lien being a part of the consideration for such conveyance, and there being no agreement as to the exact apportionment of the mortgage between the specific portions of the property conveyed and retained by the mortgagor, both portions must contribute to the payment of the mortgage in proportion to their relative value as of the date of such conveyance. 143 A. at 617.

The case of Calverley v. Ventor Buildings & Loan Ass’n., 107 N.J.Eq. 214, 151 A. 609 (1930), upon which Leinenweber relies, is not on point. In that case a sale was explicitly announced to be subject to a $10,-000.00 mortgage. By the time the sale took place, the amount due on the mortgage was less than $10,000.00 because payments had been made after the announcement of the sale and the purchaser asked for credit for the actual payoff. The court denied the request for credit on the ground that the purchaser gave nothing in consideration for the reduction in the amount of the mortgage. The court directed that any excess paid on the mortgage be returned to the mortgagor.

In that case, as contrasted to the instant case, the amount of the mortgage debt which the purchaser would be subject to was set forth explicitly in the sale announcement. Here, the announcement simply said the sale was subject to “a” mortgage. There was no explicit statement concerning the amount of the mortgage which would encumber the property being sold.

Nor is Swann v. Wright’s Executor, 110 U.S. 590, 4 S.Ct. 235, 28 L.Ed. 252 (1884), contrary to our ruling here. In Swann the purchasers at a judicial sale were explicitly warned that the property being sold at judicial sale was subject to “liens established, or which may be established; by said court in this cause, on references heretofore had and now pending....” Rejecting Swann’s subsequent challenge to the validity of one of the liens, the court stated that he could not assert title in himself and at the same time “claim the aid of a court of equity in repudiating the essential conditions upon which he received title.... ” In the instant case, Wiggins is not attempting to “repudiate the essential conditions upon which he received title”; he is attempting to clarify his responsibilities as set forth in the sale documents.

II

Having held that the respective parcels of property are subject to the lien in proportion to their relative values as of the date of the sales, it will be necessary to remand this cause to the trial court so that it may determine what, the proportionate values are. Accordingly, it is necessary that the issue raised by Wiggins concerning one of the expert witnesses be reached.

Although the challenged expert witness was accepted by stipulation as an expert as to value of property, Wiggins urges that his testimony should have been stricken and should not have been considered by the trial court because the witness allegedly used different approaches in evaluating the two parcels of property. While it is true that the expert witness emphasized the income approach in evaluating Wiggins’ property and the market data approach in evaluating Leinenweber’s property, it is also true that the expert testified that he used both of those approaches in appraising both parcels of property and the figures came out the same. The expert’s explanations on both direct and cross examination concerning the use of the gross rent multiplier and related factors go to the weight to be accorded his appraisal figures and not the admissibility of the evidence. The refusal to strike the expert witness’s testimony was not an abuse of discretion.

III

Another aspect of the final order which must be reviewed is the trial court’s grant of an equitable lien to Leinenweber on Wiggins’ property. The record establishes that the trial court granted Wiggins’ motion to dismiss Leinenweber’s counterclaim seeking to establish the equitable lien. Then, upon entering the final order, the trial court granted the equitable lien prayed for in the previously dismissed counterclaim. We agree with Wiggins that this was error. Not only was it error for the trial court to rule on a claim that its own prior order had already disposed of, but the factors considered by the trial court in its ruling on the counterclaim had not changed.

Having disposed of the counterclaim by dismissing it, the trial court was estopped from granting the relief requested absent trial of the issue by consent (a contention not made by Leinenweber).

IV

Wiggins’ contention that the trial court erred by refusing to award an attorney’s fee based on the absence of a justicia-ble issue, Section 57.105, Florida Statutes, is without merit.

Because of our rulings on the issues discussed above, the other issues raised by Wiggins need not be reached.

This opinion addresses the rights of the parties (co-mortgagors) vis-a-vis each other. It should not be construed as affecting the rights of the mortgagee, who is not a party to this dispute.

Accordingly, this cause is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

McCORD and WENTWORTH, JJ., concur.


text:
    Albert H. SAKOLSKY, d/b/a the Coconut Grove Hotel, David Hill, and T.P.I. Corporation, a Florida Corporation, Appellants, v. The CITY OF MIAMI, a Florida municipal corporation, Grove Key Marina, Inc., a Florida corporation and Grove Restaurant Ltd., a Florida limited partnership, Spencer B. Meredith, as General Partner of Grove Restaurant Ltd. and J. Richard Bell, as General Partner of Grove Restaurant Ltd., Appellees.
    No. 80-2473.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 1981.
    Neil Flaxman, Coral Gables, for appellants.
    George F. Knox, Jr., City Atty., and Mik-ele S. Carter, Asst. City Atty., Daniels & Hicks and Sam Daniels, Anderson & Moss, Miami, for appellees.
    Before HUBBART, C. J., and HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. Local No. 284, United Assoc, of Journeyman and Apprentices of Plumbing & Pipefitting Industry v. Henley & Beckwith, Inc., 66 So.2d 818, 821-822 (Fla.1953); New Products Corp. v. City of North Miami, 241 So.2d 451 (Fla.3d DCA 1970), cert. denied, 244 So.2d 434 (Fla.1971).