author: OVERTON, Justice.

text:
    Willie Albert DORSEY, Appellant, v. STATE of Florida, Appellee. Norman Luther BRITTEN, Appellant, v. STATE of Florida, Appellee.
    Nos. 58365, 58886.
    Supreme Court of Florida.
    July 30, 1981.

      John A. Henninger of the Law Offices of Robert W. Pope, St. Petersburg, for appellant, Willie Albert Dorsey.
    Joseph M. Ciarciaglino, Jr. of Osborne & Ciarciaglino, St. Petersburg, for appellant, Norman Luther Britten.
    Jim Smith, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for appel-lee.
   OVERTON, Justice.

These causes are consolidated appeals from judgments of a trial court which upheld the validity of section 943.462, Florida Statutes (1977), the Racketeer Influenced and Corrupt Organization (RICO) Act. We have jurisdiction under article V, section 3(b)(1), Florida Constitution (1972). We uphold the constitutionality of the act as applied to appellants. We also hold that there can be no expectation of privacy in “beeper” messages sent over the airwaves and that these messages are not protected by Florida’s wiretap law. We find, however, that we must reverse appellants’ convictions and remand for new trials because of trial error in admitting prejudicial evidence of a murder allegedly committed by the organization but not charged against appellants. We conclude that this type of error is not harmless.

Appellants Dorsey and Britten were tried and convicted of one charge each of violating section 943.462. Trial testimony indicated that appellants’ arrests stemmed from an investigation by the St. Petersburg Police Department into the operation of a narcotics ring headed by one John Bailey. The investigation commenced with the use of a paid informant, whose information prompted the police to monitor, by means of a radio scanner, messages received by Bailey and others on a “pocket pager” or “beeper” rented by Bailey. The information the police gathered from the intercepted radio broadcasts was used to obtain a court order authorizing a wiretap of Bailey’s telephone. This wiretap produced information eventually leading to sixteen arrests. The state entered a nolle prosequi in one case, and all other defendants pled guilty except the two appellants.

Both appellants filed pretrial motions to dismiss, alleging that the RICO Act is unconstitutional for a variety of reasons. Both motions were denied.

Some of appellants’ arguments against the statute have been rejected in State v. Whiddon, 384 So.2d 1269 (Fla.1980), and Moorehead v. State, 383 So.2d 629 (Fla. 1980). In this appeal, appellants contend that the statute is unconstitutional as applied to them because the definition of the term “enterprise,” which specifically includes illicit as well as licit enterprises, conflicts with the expressions of legislative intent in the uncodified preamble of the act. The argument has no basis. Even if we were to find that the preamble’s emphasis on organized crime infiltrating legitimate business poses some conflict with the inclusion of illicit enterprises in the definitional section, such conflict would present at most a problem of construction and not a constitutional defect. What appellants are really asking this Court to do is to read the words “illicit enterprises” out of the statute on the basis of the act’s preamble. This would be totally inappropriate. It is well settled that such “prefatory language” cannot expand or restrict the otherwise unambiguous language of a statute.

[T]he preamble is no part of the act, and cannot enlarge or confer powers nor control the words of the act, unless they are doubtful or ambiguous.

Yazoo & Mississippi Valley Railroad v. Thomas, 132 U.S. 174, 188, 10 S.Ct. 68, 73, 33 L.Ed. 302 (1889). Accord, Coosaw Mining Co. v. South Carolina, 144 U.S. 550, 12 S.Ct. 689, 36 L.Ed. 537 (1892); Association of American Railroads v. Costle, 562 F.2d 1310 (D.C.Cir.1977); Hughes Tool Co. v. Meier, 486 F.2d 593 (10th Cir. 1973); In re Camden Shipbuilding Co., 227 F.Supp. 751 (D.Me.1964); Idaho Commission on Human Rights v. Campbell, 95 Idaho 215, 506 P.2d 112 (1973). The language of section 943.-461(3) is clear. Moreover, its intended scope is clear when one examines the federal RICO act, in which the definition of enterprise is identical to Florida’s except for this state’s specific inclusion of illicit enterprises. Clearly, the Florida legislature intended to avoid the dispute over construction which plagued the federal courts of appeals. Compare United States v. Turkette, 632 F.2d 896 (1st Cir. 1980), rev’d, - U.S. -, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981); and United States v Anderson, 626 F.2d 1358 (8th Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981); with United States v. Sutton, 642 F.2d 1001 (6th Cir. 1980) (en banc); United States v. Whitehead, 618 F.2d 523, 525 n.1 (4th Cir. 1980); United States v. Rowe, 598 F.2d 564 (9th Cir. 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980); and United States v. Altese, 542 F.2d 104 (2d Cir. 1976), cert. denied, 429 U.S. 1039, 97 S.Ct. 736, 50 L.Ed.2d 750 (1977). This dispute has only recently been resolved. United States v. Turkette, - U.S. -, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) (Federal RICO Act defined to encompass “illegitimate” as well as “legitimate” enterprises). Whatever may have been the congressional intent in defining “enterprise” in the federal act, the deliberate insertion of clarifying words in the Florida act has settled the matter in state prosecutions.

The second point for discussion concerns appellant Dorsey’s contention that the court should have granted his motion to dismiss on the basis of vagueness of the information and statement of particulars, which specifically listed seven examples of drug-dealing.

Dorsey complains that the information is void because it is so vague as to subject him to multiple prosecutions, since it alleges a “pattern of racketeering activity ... which includes but is not limited to the following described acts.” However, through the statement of particulars and Florida’s broad discovery procedures, the appellants had full knowledge of the specific facts justifying the charge in the information.

Dorsey argues that the information must be written so as to avoid double jeopardy. United States v. Cuesta, 597 F.2d 903 (5th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979). Determining exactly what offenses for which jeopardy has attached under a RICO prosecution may be difficult in some cases, but clearly in this case jeopardy has attached for any racketeering charge, brought under section 943.-462, for the time period of April, 1978, through May, 1979. The fact that a RICO charge covers a period of months does not mean that jeopardy automatically attaches for any factually related charges based upon incidents during that period, except for another prosecution under RICO itself. Whether a predicate offense underlying a RICO charge may be separately prosecuted depends upon a close examination of the two offenses. We need not reach the issue of whether the double jeopardy clause would prohibit prosecutions for drug offenses at the times and places included in the statement of particulars, since no such charges have been brought. In our opinion, it is clear that since the state’s evidence in the instant case would be limited to those incidents of which the defendant was given notice in the statement, jeopardy has not attached for any other drug offenses during that period. We conclude that Dorsey’s contention that the information and statement of particulars were fatally vague and defective is without merit.

The third issue is the contention of appellants Dorsey and Britten that they were substantially prejudiced by references, in the information and in testimony allowed at trial over their objections, to the murder of one Clara Yarn, allegedly committed by other members of the Bailey organization. The state asserts that the evidence, which included the testimony of the coroner as to cause of death, was relevant to show the “existence,” “scope,” and “purposefulness” of the organization. . We find we must agree with appellants that this testimony, in the manner it was presented, constituted prejudicial error.

The record reflects that the organization member or members who allegedly committed the murder were not on trial with Dorsey and Britten. This was an execution-style murder of the girl friend of an organization member, which was not alleged as a specific offense charged against these appellants. Further, the trial judge had previously denied a requested statement of particulars on the murder, so appellants were not apprised of the specifics in order to “defend” against his crime which the state conceded they did not commit. The record shows that the trial judge was clearly bothered by this evidence at the time of its admission.

It is one thing for evidence to be presented to a jury concerning the structure and drug-dealing procedures of the organization when specific drug offenses are charged, but it is quite another to hear in detail about a murder not specifically charged or proven.

The state relies upon United States v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978). Elliott is not controlling in this case. In Elliott four defendants who did not commit murder stood trial jointly with, and as confederates of, two others who committed the murder, all in the course of a broad-ranging RICO prosecution involving over a dozen distinct predicate crimes. The Fifth Circuit in Elliott concluded that the United States Constitution “does not guarantee a trial free from the prejudice that inevitably accompanies any charge of heinous group crime; it demands only that the potential for transference of guilt be minimized to the extent possible under the circumstances in order to ‘individualize each defendant in his relation to the mass.’ ” Id. at 905 (citation omitted). The trial in Elliott contains a significant distinction from the instant case. In Elliott the prosecution actually proved the murder in question, and it was one of the predicate offenses underlying the RICO charge. The murder in Elliott was clearly relevant, unlike the instant case in which the murder was not charged against anyone being tried.

We must conclude that the testimony concerning the murder was not harmless error; consequently, we must reverse the convictions and remand for a new trial.

Appellants’ remaining points are without merit, and only one warrants discussion in order to resolve the issue on retrial. It presents a question under Florida’s security of communications statute that has produced absurd results in the comparable federal law.

Appellants contend that the trial court erred in denying their motion to suppress evidence acquired as a result of the wiretap order based upon “beeper communications” intercepted by police. These “beepers” were a type of pocket pager that one carries on his person and through which he may receive messages. This is accomplished when another person dials the telephone number of the company that distributes the beepers. The calling party hears a tone and thereafter has ten seconds in which to announce his message. This message is then converted into radio waves and transmitted to the party with the beeper and to any member of the public who has a radio tuned to this frequency. The receiving party can only listen to the message, since the beeper is a receiver and not a transmitter.

A “bearcat scanner,” capable of receiving any programmed frequency, was used by police to intercept these beeper messages. Appellants contend that a court order was necessary to legally intercept these communications under chapter 934, Florida Statutes. Since a court order was not obtained, appellants contend that this was a wiretap and all evidence acquired therefrom was also illegal.

Appellants’ argument is basically that the beeper messages come within the definition in chapter 934 of “wire communication,” which does not include an express requirement of an expectation of privacy, unlike the definition of “oral communication.” These definitions, found in subsections (1) and (2) of section 934.02, Florida Statutes (1977), are as follows:

“Wire communication” means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception ....
“Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting[.]

These definitions correspond in relevant parts to those set forth in 18 U.S.C. § 2510, construction of which has led to conclusions that communications similar to those at bar were “wire communications,” producing what the federal courts concede are “absurd” results. See United States v. Hall, 488 F.2d 193 (9th Cir. 1973); United States v. Sugden, 226 F.2d 281 (9th Cir. 1955), aff’d, 351 U.S. 916, 76 S.Ct. 709, 100 L.Ed. 449 (1956).

We recognize but reject the decision in Hall, in which the Ninth Circuit Court of Appeals considered the question of whether a communication initiated from a land-line telephone and then transmitted over the airwaves was a wire or oral communication. On this issue, the court held: “[W]e are forced to conclude that, when part of a communication is carried to or from a land-line telephone, the entire conversation is a wire communication and a search warrant is required.” 488 F.2d at 197 (emphasis added). In reflecting on its decision, the court stated:

We realize that our classification of. a conversation between a mobile and a land-line telephone as a wire communication produces what appears to be an absurd result. These conversations were intercepted by an ordinary radio receiver and not by a phone tap. Logically they should be afforded no more protection than those occurring between two radio transceivers... . However, Congress’s definition of a wire communication necessitates this conclusion.

Id. (emphasis added).

In Florida it is a well-settled principle that statutes must be construed so as to avoid absurd results. Realty Bond & Share Co. v. Englar, 104 Fla. 329, 143 So. 152 (1932). The instant statute can be so construed, and we do so to avoid reaching a result that would require a warrant or a court order to listen to the open and available airwaves. The definition of wire communications contained in section 934.02 must be interpreted in a common sense and reasonable manner. We construe the prohibition of interception of wire communications “made in whole or in part through the use of facilities for the transmission or communications by the aid of wire ...” to apply only to so much of the communication as is actually transmitted by wire and not broadcast in a manner available to the public. Just as it would be absurd to include within the definition of “wire communication” a message broadcast over a public address system for everyone to hear, even though the communication is aided by certain wires, it would be equally absurd and asinine to include within that definition television or radio signals broadcast with no reasonable expectation of privacy and openly available for anyone with the proper receiving equipment to hear. We emphasize the broadcast nature of such messages, since one who sends beeper messages should know, and in the instant case the Bailey organization did in fact know, that such communications are open to any members of the public who wish to take the simple step of listening to them. Such signals clearly lack any expectation of privacy. They are, by the very nature of being broadcast, communications unprotected by any constitutional right or by Florida’s wiretap law and therefore are admissible in evidence in the retrial of this cause.

For the reason expressed concerning the introduction of prejudicial, irrelevant testimony concerning a collateral crime not charged against appellants, we reverse the instant convictions and remand for a new trial.

It is so ordered.

SUNDBERG, C. J., and BOYD, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

ADKINS, J., dissents.

      . Section 943.461(3) provides:
      “Enterprise” means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity, and it includes illicit as well as licit enterprises and governmental, as well as other entities.
      (Emphasis supplied.)

      . The preamble to chapter 77-334, Laws of Florida, reads in part as follows:
      WHEREAS, organized crime is infiltrating and corrupting legitimate businesses operating within this state and this infiltration and corruption uses vast amounts of money, power, and all the techniques of violence, intimidation, and other forms of unlawful conduct to accomplish its goals, and
      WHEREAS, in furtherance of such infiltration and corruption, organized criminal operatives utilize and apply to their unlawful purposes laws of the State of Florida conferring and relating to the privilege of engaging in various types of business enterprises, and
      WHEREAS, infiltration and corruption of legitimate business provide an outlet for illegally obtained capital, harm innocent investors, entrepreneurs, merchants, and consumers, interfere with free competition, and thereby constitute a substantial danger to the economic and general welfare of the State of Florida, and

      . 18 U.S.C. §§ 1961-1968 (1976).

      . We do not reach any hypothetical questions involving more sophisticated methods of intercepting communications which in fact engender a reasonable expectation of privacy, such as land-line telephone messages transmitted in part by wireless signals.


source: Caselaw Access Project

author: PER CURIAM. BOYD, Justice,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Martin KATZ, Respondent. STATE of Florida, Petitioner, v. Alfred WITHERSPOON, Respondent.
    Nos. 57227, 56169.
    Supreme Court of Florida.
    July 30, 1981.
    Rehearing Denied Sept. 24, 1981.

      Jim Smith, Atty. Gen., Janet Reno, State Atty. and Ira N. Loewy and Dennis Curran, Asst. State Attys., Miami, for petitioner.
    Henry Gonzales, Miami, and Julius Lucius Echeles and Caroline Jaffe, Chicago, Ill., for respondent Katz.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, Miami, for respondent Witherspoon.
   PER CURIAM.

By petitions for writs of certiorari the state seeks review of two decisions, State v. Katz, 372 So.2d 201 (Fla. 3d DCA 1979), and State v. Witherspoon, 366 So.2d 487 (Fla. 3d DCA 1979), which allegedly conflict with prior decisions of this Court. Art. V, § 3(b)(3), Fla.Const. Although prosecuted separately in both the trial courts and district court of appeal, they have been consolidated for purposes of review in this Court as involving the same legal issue.

The question presented is whether a defendant who obtains a judgment of acquittal on the grounds that a material variance existed between the allegations in the information and the proof adduced at trial is thereafter protected by double jeopardy or collateral estoppel from a second prosecution based upon an information which conforms to the proof adduced at the first trial.

In Katz one count of the information charged burglary of a conveyance, “to-wit: A 1977 BUICK AUTOMOBILE.” At trial the evidence revealed that the stolen vehicle was in fact a 1975 Chevrolet. At the close of the evidence the defendant moved to dismiss all charges. The court observed that defendant had been charged with “breaking into his own car” and granted the motion. The second Katz information tracked the first as to the burglary charge, except that the stolen vehicle was described as “a 1975 Chevrolet.” The court dismissed this information on the basis of collateral estoppel citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and the district court affirmed.

In Witherspoon the first information, as limited by a statement of particulars, alleged that the crime occurred on November 19, 1976, “at approximately 8:00 P.M.” At trial, the proof indicated the actual time was dusk or nightfall which occurred around 5:30 P.M. on that date. The defendant claimed the variance was material and prejudicial in light of his alibi defense and successfully moved for a judgment of acquittal. Predictably the next information alleged the crime occurred on November 19, 1976, “at dusk, to-wit: between 6:00 P.M. 8:00 P.M.” This information was dismissed by the trial court as barred by the prohibition against double jeopardy. The district court affirmed.

In both Katz and Witherspoon Judge Hubbart dissented, citing our decision in State v. Beamon, 298 So.2d 376 (Fla.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975). In Beamon the first information, as limited by a bill of particulars, specified November 24, 1972, as the date of the offense. Proof at trial showed that November 26, 1972, was the actual date. The court granted a judgment of acquittal on the basis of the variance and declared the defendant “not guilty of the crime of robbery on Nov. 24, 1972.” Id. at 378 (emphasis deleted). The second information in Beamon alleged the previously proven date and was dismissed on double jeopardy and collateral estoppel grounds. This was affirmed by the Third District Court of Appeal. State v. Beamon, 302 So.2d 208 (Fla. 3d DCA 1973). In quashing that decision this Court noted that double jeopardy will bar subsequent prosecutions only where:

(1) [Tjhere was a former prosecution in the same state for the same offense; (2) that the same person was in jeopardy on the first prosecution; (3) that the parties are identical in the same prosecution; and (4) that the particular offense on the prosecution of which the jeopardy attached was such an offense as to constitute a bar.

298 So.2d at 379-80 (citations omitted and emphasis in original). We specifically found that since the variance between the dates was material, thereby justifying an acquittal in the first prosecution, the offense charged in the second information was not the “same offense” and thus double jeopardy did not apply.

Florida’s test for determining whether successive prosecutions impermissi-bly involved the same offense is based upon the sufficiency of the allegations in the second information with regard to a conviction of the offense charged in the first. If the facts alleged in the second information, taken as true, would have supported a conviction of the offense charged in the prior information, the offenses are the same and the second prosecution is barred. Bizzell v. State, 71 So.2d 735 (Fla.1954). This is similar to the federal standard which allows the second prosecution where conviction of either offense requires proof of a fact which is not required by the other. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932). Under the facts of the eases at bar, we need not delve into the distinctions between the two tests. See generally Note, Twice in Jeopardy, 75 Yale L.J. 262, 269-75 (1965); Ennis v. State, 364 So.2d 497 (Fla. 2d DCA 1978).

Tests for identity of offenses were formulated to prevent the unjust results occurring under the rules of common law pleading which made the slightest variation between the pleadings and proof fatal to the prosecution. A plea of former acquittal barred reprosecution; thus the guilty were permanently freed from further prosecution on the basis of technicalities of pleading. See The King v. Vandercomb & Abbott, 2 Leach 708, 168 Eng.Rep. 455 (1796), cited in Note, 75 Yale L.J. at 271, and Note, Double Jeopardy in Florida, 2 U.Fla.L.Rev. 250, 253 (1949). Similar injustice will result if a defendant who clearly is acquitted on the basis of a variance may later assert that the variance wasn’t really material and that the offenses differentiated thereby are one and the same. State v. Beamon. In State v. Bentley, 81 So.2d 750 (Fla.1955), this Court distinguished situations such as the ones at bar from one in which the defendants went to trial on the first charge and were acquitted by a jury in spite of a variance between the pleading (larceny of a cow) and proof (larceny of a calf). See Driggers v. State, 137 Fla. 182, 188 So. 118 (1939). In the latter instance “from all that appears in the record, the jury could have found [the defendants] not guilty on the actual merits of the case.” 81 So.2d at 751. See also LeRea v. Cochran, 115 So.2d 545 (Fla.1959), cert. denied, 362 U.S. 946, 80 S.Ct. 867, 4 L.Ed.2d 865 (1960).

Defendant Katz argues that since he did not affirmatively seek a judgment of acquittal based upon the variance, the Beam-on rationale should not be applied to prevent him from denying its materiality when the second, accurate information was filed. We disagree. The import of the Beamon, Bentley and Driggers decisions is that if a variance is substantial enough to form the basis for an acquittal, it must be deemed a material variance. The trial judge acted sua sponte to dismiss the first Katz information, but the acquittal was unquestionably founded upon the discrepancy between a 1977 Buick and a 1975 Chevrolet. The fact that the trial judge instead of defendant discerned and acted upon the flaw in the information dos not alter the underlying principle.

Assuming the variance was material, defendant Katz argues the state may not relitigate the issue under principles of collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). This doctrinal extension of the double jeopardy prohibition applies to bar relit-igation between the same parties of issues actually determined at previous trial. In Ashe the defendant was acquitted of robbing a poker game on the basis of identity, i. e., he was not one of the robbers. Since his identity as a robber of that game had been resolved in his favor, the state was collaterally estopped from relitigating his identity as a robber by reprosecuting for robbery of a different poker player. See State v. Powell, 314 So.2d 787 (Fla. 2d DCA 1975). In Katz the defendant was cleared only of stealing a 1977 Buick. The issue of whether he stole anything else, e. g., a 1975 Chevrolet, was never resolved in his favor and may be relitigated. See State v. Nocon, 352 So.2d 910 (Fla. 2d DCA 1977), cert. denied, 367 So.2d 1125 (Fla.1979).

Nor is reprosecution barred under the facts in Witherspoon, where the defendant actively sought and obtained a judgment of acquittal on the basis of a material variance between the allegations and proof. Judge Hubbart lucidly explained why With-erspoon’s situation is legally indistinguishable from Beamon’s, and we need only paraphrase the facts of each case to highlight his legal analysis.

Witherspoon was charged with grand larceny on a certain day at “approximately 8:00 P.M.” When the first two state witnesses testified that the crime had occurred “just about nightfall” or “at dusk,” Wither-spoon moved for a judgment of acquittal. The court checked with the meteorological society, which related that dusk occurred that day between 5:30 and 6:00 P.M. The court then noted Witherspoon’s alibi defense for 8:00 P.M. that day and ordered Witherspoon’s acquittal.

In identical circumstances, from a legal point of view, Beamon asked for and received an acquittal of an alleged November 24 robbery when the crime victim initially testified that she was robbed on November 26. There is no thread of legal consistency which would allow the state to recharge Beamon with a November 26 robbery while preventing the state from recharging With-erspoon with a dusk grand larceny. In each situation the defendant was exonerated because proof of the time of commission of the criminal activity varied materially from the allegation of time for which the defendant had prepared his defense.

Beamon teaches that a defendant under circumstances such as these is estopped to suggest that the variance which was material enough for acquittal is nonetheless immaterial for a new charge. See also Stevens v. State, 383 So.2d 1156 (Fla. 5th DCA 1980); State v. Mayor, 378 So.2d 1324 (Fla. 3d DCA 1980). That is the rule we now reiterate and apply to Katz and Wither-spoon.

The district court decisions are quashed, and these causes are remanded to the district court of appeal with instructions to reverse the orders of the trial judge dismissing the informations.

It is so ordered.

SUNDBERG, C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

ADKINS, J., concurs as to State v. Katz, and dissents as to State v. Witherspoon.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

The two basic purposes of the Double Jeopardy Clauses of the United States and Florida Constitutions are protection against double punishment for a single criminal offense and prevention of successive prosecutions for the same alleged offense. These cases involve the latter purpose. The constitutional protection against twice being placed in jeopardy for the same offense reflects the framers’ appreciation of the potential for oppression when the government is allowed successive attempts to prove the commission of a crime.

A “variance” between the pleadings and the proof means a failure by the state to adduce sufficient evidence to prove its accusation. When such a variance calls for a dismissal of the charge, a directed verdict, or a judgment of acquittal, it is the same as if the accused had been acquitted by the jury. The majority reasons that in the instant cases reprosecution under reformed accusatory pleadings is permissible because such new accusations are not for the same offenses the state failed to prove at the earlier trials. But it is only in a highly technical sense that the offenses charged in the new informations can be considered different offenses from those originally charged.

When a jury concludes that the state has failed to prove the commission of a crime, so that the defendant, presumed innocent, must be acquitted, it is possible that at a later time the government, having gathered more evidence, might be able to prove the commission of the crime. In such a situation, the people have an interest in seeing that the guilty defendant is brought to justice and punished. The Double Jeopardy Clause, however, declares that such governmental interest is outweighed by the potential that successive prosecutions may be used to inflict vexation and harassment.

To be accused of crime and subjected to a criminal trial is a devastating ordeal. Even where the accused is acquitted of the crime, the burdens of the experience may and often do involve severe embarrassment, psychological damage, and financial ruin. Therefore, the Double Jeopardy Clause demands that the government be allowed but one opportunity to prove a criminal accusation.

It is fundamental to the concept of ordered liberty under a legitimate government that a person may not be condemned to criminal punishment without a fair trial. Various provisions of the Bill of Rights of the United States Constitution and the Declaration of Rights of the Florida Constitution secure the procedural rights that ensure that criminal trials will be fair. These procedural rights' are prerequisites to criminal conviction and recognize the awesome power of government to deprive persons of life, liberty, or property. But the Double Jeopardy Clause goes further and recognizes the importance of the power of government to accuse persons of crime.

One of the most awesome powers exercised by officials of the state is the power of our state attorneys and grand juries to institute criminal proceedings by accusing a person of the commission of a crime. The exercise of such authority sets in motion the machinery of the criminal justice system and brings the prosecutorial resources of the state to bear upon an individual. The constitutional prohibition against allowing the state a second opportunity to prove the commission of a crime should extend to situations such as the present cases and should be held to require that when accusatory pleadings are being drafted, they be drafted correctly. If the proof at trial fails to sustain the allegations, retrial should no more be permitted on the basis of corrected allegations than it is on the basis of augmented proof.

The decisions of the district court of appeal were correct and should be approved. I dissent.

       The only troublesome aspect of Witherspoon is the descriptive phrase in the charging document which says: “to-wit: between 6:00 P.M. 8:00 P.M.” The outer limit of 8:00 P.M., obviously, corresponds to the time originally charged as the approximate time of the offense. It is only a characterization of the operative phrase “at dusk”, however, and as such is not determinative. Moreover, it inaccurately describes the new charge of a crime committed “at dusk”.


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. Eduardo Alfredo LOPEZ, Appellee.
    No. 80-848.
    District Court of Appeal of Florida, Second District.
    April 8, 1981.
    Rehearing Denied May 7, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Emilio de la Cal, Miami, for appellee.
   DANAHY, Judge.

We hold that when the state appeals an order suppressing evidence, it need not obtain a trial court order extending the speedy trial time period in accordance with rule 3.191(d)(2), Florida Rules of Criminal Procedure, if the defendant has previously filed an effective waiver of his right to be brought to trial within the period of time established in rule 3.191(a)(1). The trial judge in this case ruled to the contrary and discharged the defendant on the ground that rule 9.140(c)(2), Florida Appellate Rules, requires the state to obtain an extension of speedy trial time whenever the state appeals in a criminal case pursuant to that rule. We reverse.

Rule 9.140(c)(2) provides that an appeal by the state shall stay further proceedings in the lower tribunal only by order of the lower tribunal. Section 924.071(2), Florida Statutes (1979), provides for an automatic stay during the pendency of a state appeal from a suppression order (among others). But neither the statutory automatic stay nor the request for stay required in rule 9.140(c)(2) has anything to do with the extension of speedy trial time. State v. Jenkins, 389 So.2d 971 (Fla.1980). In the Jenkins case, our supreme court held that regardless of the automatic stay provided in section 924.071(2), the state must request an extension of speedy trial time in accordance with rule 3.191(d)(2) when the state files an interlocutory appeal or an appeal from a dismissal of an indictment or information. In stating that rule, the court did not refer to the situation in which a defendant has previously made an effective waiver of speedy trial time under rule 3.191. Logic dictates that a state request for an extension is not necessary where, as in this case, a defendant has effectively waived speedy trial time under rule 3.191.

The defendant in the instant case did not request discharge for violation of his constitutional right to speedy trial, nor did the trial judge consider that question. The defendant’s request and the trial judge’s ruling concerned only the period of time specified in rule 3.191(a)(1). Notwithstanding our reversal of that ruling, the defendant retains his constitutional right to a speedy trial within a reasonable time or within any period of time available to the defendant other than the period of time specified in rule 3.191(a)(1). Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla. 1971); State v. Leonetti, 393 So.2d 1199 (Fla. 5th DCA 1981).

SCHEB, C. J., and OTT, J., concur.


author: COBB, Judge. COWART, Judge, COBB, Judge.

text:
    Brenda PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-422.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.
    On Rehearing Aug. 12, 1981.
    Rehearing Denied Sept. 1, 1981.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

Patterson was charged with committing grand theft in the second degree in violation of section 812.014, Florida Statutes (1979). She moved to suppress a portion of the stolen property that was seized by the arresting officers. After a hearing on the motion, the trial court denied it. Patterson then pled nolo contendere to the charge and reserved the right to take an appeal of the denial of the motion to suppress. Both the state and Patterson’s counsel stipulated that if the trial court had granted the motion to suppress, it would have been disposi-tive of the felony charge. The trial court accepted the plea, adjudicated the appellant guilty as charged, and placed her on probation. On this appeal, Patterson contends that the trial court erred in denying the motion to suppress.

The only witness to testify at the suppression hearing was the arresting officer, Katherine Ellis. While in her cruiser, she heard a report over her radio with regard to a shoplifting that had just taken place in the Winter Park Mall. The dispatch reported that the items taken were a light brown pair of pants and a shirt; the vehicle was described as a red Pinto with a current Florida tag, number FAZ058; the vehicle was traveling northbound from Ivey’s with a black male driving it and a black female occupant who had pink curlers and a beige dress. The witness spotted the vehicle while it was still at the mall and stopped it. The officer had the driver exit the car and asked him for some identification. She then spotted the two items in the back end of the Pinto, partially covered by a leather jacket that had been described in the radio dispatch. The officer then noticed that the appellant, who was in the front passenger seat, was bending over, apparently attempting to conceal something beneath her dress or her legs. The officer had the appellant get out of the car, placed her under arrest for shoplifting, and put her in the back of her patrol car. The officer then returned to the Pinto to see what the appellant had been trying to hide. The officer found two handbags under the front seat, and opened them up to make sure that there were not any weapons in them. Inside the handbags, the officer found other articles of clothing, sunglasses, and jewelry that had been taken from various stores at the mall without having been paid for. The officer planned to let the driver go with the vehicle. There was no search warrant and no permission to search the vehicle.

Patterson does not contest her arrest or the seizure of the two stolen items that were in plain view in the back of the Pinto. Her contention is that the search under the front seat of the Pinto was not justified, since she had already been removed from that car and placed in the police car, and therefore the items found in the two purses should be suppressed. These items make the difference between whether the theft was petit or grand. Conversely, the state argues that the search and seizure of these items was justified as either (1) a search incident to an arrest, or (2) an “automobile exception” search based on probable cause combined with exigent circumstances.

Patterson was already in police custody at a safe distance from the Pinto at the time the search was made; therefore, the search was not incident to her arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Granville v. State, 348 So.2d 641 (Fla. 2d DCA 1977); Ackles v. State, 270 So.2d 39 (Fla. 4th DCA 1973); State v. Welsh, 84 N.J. 346, 419 A.2d 1123 (1980). Since the police officer was arresting a thief and stolen items were visible in the car, there was probable cause for the officer to believe that there might be other stolen items in the Pinto. This probable cause, combined with the exigent circumstance that the driver of the Pinto was going to drive it away, gave the officer justification to conduct a warrantless search of the Pinto. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Mayo v. State, 382 So.2d 327 (Fla. 1st DCA 1980); State v. Dupart, 383 So.2d 1226 (La. 1980). However, once the police officer looked under the seat of the Pinto and seized Patterson’s two purses, there was no longer an exigent circumstance requiring an immediate search of the purses and, therefore, the officer should have procured a warrant to search the purses. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (footlocker); Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) (luggage); Ulesky v. State, 379 So.2d 121 (Fla. 5th DCA 1979) (purse); Liles v. State, 375 So.2d 1094 (Fla. 1st DCA 1979) (satchel); United States v. Benson, 631 F.2d 1336 (8th Cir. 1980) (tote bag). We recognize the rationale of the arguments contained in Judge Cowart’s dissent. However, his arguments were raised in the dissents of Chadwick and Sanders and were rejected by the majorities in those cases.

Accordingly, we must reverse the denial of the motion to suppress and remand for further proceedings on charges of petit theft.

REVERSED and REMANDED.

ORFINGER, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

I agree that, because the shoplifting thief when arrested with some stolen goods was observed hiding something in the front of the vehicle in which she was a passenger, the arresting officer had reason to believe other stolen items were being hidden and had probable cause to forthwith search the vehicle for them without a warrant under the exigent circumstances existing when the vehicle was about to be removed from the area by its driver. I do not agree that probable cause justified the seizure of the two open top carryall-tote bags but not their immediate search. The officer’s reason and right to search and seize without a warrant related to the probable presence of stolen property in the vehicle. It was the vehicle that was being searched and not the bags. The bags were not known to exist until, during the search of the vehicle, they were discovered. It was not known that the bags contained stolen property until they were searched. Necessarily the bags were removed from their location before the officer could look into them to ascertain if they contained stolen property. This removal of the bags from their original hidden location in the vehicle was not itself a seizure but was one step in the authorized search of the vehicle. The seizure occurred, as it normally does, after the search had revealed the contents to contain stolen property. It was the contents of the bags that were the object of the search and seizure and not the bags themselves. The tote bags, being in the vehicle, necessarily partook of the mobile nature of the vehicle itself, justifying their warrantless search as. part of the search of the vehicle. If, when searched, the bags had not contained stolen property, their contents would not have been seized but would have been left in the vehicle to leave with it, just as was the driver and other unseized contents of the vehicle.

In Chadwick suspicion and probable cause had focused on a double locked footlocker while it was in railway transit and it was seized just as it was being placed in the trunk of a parked car and both the footlocker and the car were taken into custody. Likewise, in Sanders suspicion amounting to probable cause had centered on Sanders’ suitcase while it was in transit and long before it was put into the taxi from which it was seized. In both Chadwick and Sanders the officers were not searching vehicles for something unknown, they were after the luggage which they already had probable cause to believe to contain contraband and the luggage had only incidentally been placed into a vehicle at the time of its seizure. In Ulesky, unlike in this ease, it was the driver who was arrested, the vehicle was not leaving the area, and the officers reasonably could have obtained a search warrant for the vehicle and its contents. In Liles, as in Chadwick and Sanders, the officers impounded the vehicle in which was located the satchel later searched without a warrant. In Chadwick and in Sanders it was actually the footlocker and the suitcases which were desired to be searched, not the vehicles, and in Ulesky and Liles the vehicle and its contents were immobilized and it was practical for police officers to have obtained a search warrant before searching the vehicle and its contents.

Because of its absurdity, police officers will never understand that the law authorizes them to seize an object such as a shopping bag on the basis that they have reason to believe that it contains contraband but will not authorize them to immediately look into it to determine the truth and forthwith either return it to its owner if it does not contain contraband or keep possession of it if it does. As a practical matter it will never occur to a police officer that he should, after taking possession, not look into it but must take it to a magistrate, explain his probable cause for believing that its contents are subject to seizure and then have the magistrate sign a search warrant authorizing the police officer to look into the container. Under these circumstances, since the officer is the one in possession of the object to be searched at the time the search is authorized who does he represent to the magistrate is in possession of the property to be searched? After the search warrant is issued must the officer then go back and find the person from whom the container was seized and serve the search warrant on that person?

As the same probable cause and exigent circumstances making it reasonable to search the vehicle without a warrant also makes it reasonable to search the tote bags before seizing them I would not extend Chadwick and Sanders to further limit Chambers v. Maroney but would affirm the denial of the motion to suppress in this case and affirm the trial court’s disposition of this case based upon the appellant’s nolo contendere plea.

The trial court’s denial of a motion to suppress based upon its finding of probable cause comes to this court clothed with a presumption of correctness. McNamara v. State, 357 So.2d 410, 412 (Fla.1978). In my opinion appellant has failed to overcome that presumption in this case.

ON REHEARING GRANTED

COBB, Judge.

Subsequent to our original consideration of the above case, the United States Supreme Court has decided and issued State of New York v. Belton, - U.S. -, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Based on that decision, we grant rehearing, recede from our original opinion, and affirm the trial court.

ORFINGER and COWART, JJ., concur.

      . The bags were variously referred to as two handbags and two purses but later they were described as “carryall totes, about this big by about that wide (indicating). They were open on top. — The one was a tan canvas carryall-type bag, and the other was a straw carryall-type bag with yellow flowers on it.” (TR 8, 12, 13, and 15)


author: NESBITT, Judge.

text:
    Wellington E. BENEBY, Appellant, v. MIDLAND NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. 80-1122.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Rehearing Denied Sept. 22, 1981.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, George P. Telepas, Gilmour, Morgan & Rosenblatt, Miami, for appellant.
    Dixon, Dixon, Hurst, Nicklaus & Webb and H. Clay Roberts, Miami, for appellee.
    Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   NESBITT, Judge.

Appellant who was beneficiary of his wife’s life insurance policy, seeks reversal of a summary final judgment entered in favor of the insurer on its affirmative defense that the misrepresentations of fact, which were material to the acceptance of the risk, vitiated the policy. We reverse.

The insured personally signed the application on May 3, 1976. Hospital and medical records presented in the insurer’s motion for summary judgment most assuredly established the decedent as a chronically ill and disease-ridden person. The insurer’s agent testified that he marked the answers with the insured who gave responses to the questions read to her from the policy which indicated she did not have a history of illness. The deposition testimony of the decedent’s husband is quite to the contrary. If believed, his version was that the agent hurried through the application and the only input the insured made was to sign an unread application.

We commence our analysis of this decision by observing that the parole evidence rule does not apply to insurance applications. 18A Fla.Jur. Insurance § 1010. The trial judge was apparently led into error because this principle was not brought to his attention. Given the inapplicability of the parol evidence rule and the factual dispute before the court, it is readily apparent that summary judgment was improvidently issued. The general rule is that factual issues pertaining to misrepresentations on an application for insurance are properly within the province of the trier of fact. Aetna Life Insurance Company v. Sievert, 361 So.2d 747 (Fla. 1st DCA 1978); Underwriters National Assurance Company v. Harrison, 338 So.2d 58 (Fla. 3d DCA 1976). This case is similar to the factual pattern presented in Travelers Insurance Company v. Zimmerman, 309 So.2d 569 (Fla. 3d DCA 1975) where we recognized that: (1) the extent of questions asked by an insurance agent; (2) the accuracy of answers given by the prospective insured; and (3) the scope of the insured’s alleged misrepresentations, normally constitute disputed questions of fact to be resolved by the trier of fact irrespective of how palpably false or material the representations may be.

The insurer attempts to support the judgment by relying upon New York Life Insurance Company v. Nespereira, 366 So.2d 859 (Fla. 3d DCA 1979). Admittedly, the factual pattern concerning the long and persistent health problem and the apparent misrepresentations made by the insured in that case are quite similar to those before us in the present controversy. However, Nesper-eira, is readily distinguishable for two reasons. First, the controversy was disposed of after a trial; and, secondly, that decision was reversed because of the trial court’s erroneous ruling that the insurer was placed upon discoverable inquiry regarding the insured’s misrepresentations.

For the foregoing reasons, the summary final judgment in favor of the insurer is reversed and remanded for further proceedings.

      . Section 627.409, Florida Statutes (1975) provides:
      627.409 Representations in applications; warranties.—

      Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
      (a) Fraudulent; or
      (b) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or .... [emphasis supplied]


author: SHARP, Judge.

text:
    Milton Lewis McILWAIN, Appellant, v. STATE of Florida, Appellee.
    No. 79-310.
    District Court of Appeal of Florida, Fifth District.
    July 8, 1981.
    Rehearing Denied Aug. 25, 1981.

      W. Ford Duane and Mitchell J. Frank, of Robertson, Williams, Duane, Lewis, Briggs & Ranson, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

Mcllwain appeals from a final judgment entered after a jury verdict adjudicating him guilty of a sexual battery on a seventeen year old boy, pursuant to section 794.011(4), Florida Statutes (1977). This section makes it a first degree felony to sexually batter a person over eleven years of age, when accomplished without that person’s consent, and when the person is “physically helpless to resist.” “Physically helpless” is defined as when a person “is unconscious, asleep, or for any other reason is physically unable to communicate unwillingness to an act.” Mcllwain argues that the evidence was insufficient to show that the boy was physically unable to communicate his unwillingness to the battery, or that it was done without his consent. We disagree.

Although the appellate courts in the not so distant past reweighed and closely scrutinized the testimony of a victim of rape or sexual battery and frequently reversed convictions because the appellate court disbelieved the complaining witness, the Florida Supreme Court has wisely put a stop to that practice. In sexual battery cases as well as any other kind of criminal case the appellate court must determine:

[A]fter all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, [whether] there is substantial, competent evidence to support the verdict and judgment. Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of the appellate tribunal.

Tibbs v. State, 397 So.2d 1120 (Fla.1981).

The victim testified that Mcllwain, a dentist he met at a restaurant where he worked, offered to do work on his teeth for no fee after he got off work. His parents gave their consent. After work one evening at approximately 10:00 p. m. the boy went to Mellwain’s office. Mcllwain fixed his teeth and then offered to hypnotize the boy to help him with his school work. The boy agreed. The dentist gave the boy nitrous oxide or “laughing gas” through a face mask which the boy said covered his mouth and nose (although there was also evidence it only covered his nose). Mcllwain rubbed the boy’s arms, legs and back, and urged him to relax. He then performed the sexual battery on the boy. After the mask was removed, the boy felt dizzy but was able to get up and drive himself home. His parents observed him shaking, sobbing and trembling. They called the police, and some three hours later the boy was calm enough to tell them what happened.

The boy testified that he was conscious and aware of what Mcllwain was doing, although because of his lack of sexual experience, he did not guess what Mcllwain was planning to do to him. He said he could not resist, and he denied he consented to the battery.

I couldn’t believe that it was happening, but I knew it was happening.
I thought I could get up, but I couldn’t. I felt kind of heavy.
I felt or knew that I could get up, but -I couldn’t. That is the only feeling I felt.
I couldn’t respond, you know.
Then I kind of got disgusted at myself because I wanted to get up, but I couldn’t.

Two expert witnesses gave persuasive testimony for Mcllwain. Mr. McCawley, an expert in hypnosis, testified that David could not have been hypnotized because the use of nitrous oxide minimizes the effect of hypnosis. He said that hypnosis does not render a person helpless physically, nor can a person be made to do something against his moral code under hypnosis. Dr. Tabak, a dentist from Miami and the past president of the Florida Dental Society of Anesthesiology, was qualified as an expert in the use of nitrous oxide in dentistry. He testified that under the facts in this case, because the boy was aware of his surroundings and able to reason, he was not “physically helpless” in the sense of being unable to resist the battery. He said that nitrous oxide is the mildest kind of general anesthetic which produces a mild analgesia — a feeling of euphoria and well-being which enlarges a patient’s pain threshold, but does not render him unresponsive. However Tabak contradicted McCawley because he said dentists did use hypnotism in conjunction with nitrous oxide. He also admitted some patients are more sensitive to the gas than others, and that if given too heavy a dose, the patient becomes immobilized and is unable to respond to the dentist’s commands. He also admitted the dose of gas could be made stronger if given through a mask covering the nose and mouth, and by adjusting the machine.

The sexual battery statute still requires proof by the State (where the victim is over 11 years of age) that the victim did not consent to the battery. To establish lack of consent under the old statute, courts required the State to prove that the victim fought, screamed, and did all in her power to avoid the rape. Under the new statute, “consent” is defined as the “intelligent, knowing, and voluntary consent ... not ... coerced submission.” Proof of lack of consent now encompasses a much broader field and does not require proof of physical resistance where other circumstances show the victim did not intelligently and knowingly agree to the battery.

There is sufficient evidence in this record to support the jury’s finding that the victim did not intelligently consent to the battery because of his youth, inexperience, and the effects of the hypnotism and nitrous oxide. We also conclude that there is sufficient evidence to sustain the jury’s finding that the victim was, because of those same factors, “physically unable to communicate his unwillingness” to the battery and thus he was “physically helpless to resist.” In this case both were jury questions.

Under our scheme of administering justice, the jury resolves factual conflicts, a function quite as important as any single function performed by the court. They take an oath to perform that function no less solemn than that taken by the court to perform its function. When it is shown that they have performed that duty faithfully and honestly and reached a conclusion that squares with reason and their theory of the evidence, it takes more than mere differences in opinion as to what the evidence shows, for this court to reverse them. We find no basis whatever for reversal here, except a possible difference of opinion as to what the facts before the jury reveal.

McKee v. State, 159 Fla. 794,33 So.2d 50, 52 (1947).

AFFIRMED.

ORFINGER and COBB, JJ., concur.

      . § 794.01 l(l)(d), Fla.Stat. (1979).

      . Mcllwain also argues the lower court committed error in not dismissing the amended information because it did not state why the boy was physically helpless to resist and in not granting his motion for a bill of particulars. No reversible error was shown on either point. The information fairly apprised him of the charge, State v. Jones, 312 So.2d 483 (Fla. 4th DCA), cert. denied, 323 So.2d 274 (Fla. 1975), and he had access to the boy’s statement and deposition well before trial. Those documents contained the basic substance of the State’s case against him which was presented at the trial. Hughes v. State, 103 So.2d 207 (Fla. 2d DCA 1958).

      . Tibbs v. State, 337 So.2d 788 (Fla.1976); Paramore v. State, 238 So.2d 604 (Fla.1970); Berezovsky v. State, 335 So.2d 592 (Fla. 3d DCA 1976), aff'd in part and rev’d in part, 350 So.2d 80 (Fla.1977), on remand, 351 So.2d 764 (Fla. 3d DCA); O’Bryan v. State, 324 So.2d 713 (Fla. 1st DCA), cert. denied, 336 So.2d 1184 (Fla.1976).

      . Truluck v. State, 108 So.2d 748 (Fla.1959); Coker v. State, 83 Fla. 672, 93 So. 176 (1922); Smith v. State, 362 So.2d 417 (Fla. 1st DCA 1978); Johnson v. State, 118 So.2d 806 (Fla. 2d DCA 1960).

      . Tibbs v. State, 397 So.2d 1120 (Fla.1981).

      . Berezovsky v. State, 335 So.2d 592 (Fla. 3d DCA 1976), aff'd in part and rev’d in part, 350 So.2d 80 (Fla.1977); O’Bryan v. State, 324 So.2d 713 (Fla. 1st DCA), cert. denied, 336 So.2d 1184 (Fla.1976); Johnson v. State, 118 So.2d 806 (Fla. 2d DCA 1960).

      . § 794.01 l(l)(h), Fla.Stat. (1979).

      . Hufham v. State, 400 So.2d 133 (Fla. 5th DCA 1981); see State v. Melendez, 392 So.2d 587 (Fla. 4th DCA 1981).

      . Ralston v. State, 350 So.2d 791 (Fla. 3d DCA 1977), cert. denied, 364 So.2d 890 (Fla.1978); Farabee v. State, 336 So.2d 1281 (Fla. 2d DCA 1976), cert. denied, 345 So.2d 422 (Fla.1977).

      . Cf. Hicks v. State, 362 So.2d 730 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 461 (Fla.1979); Spencer v. State, 332 So.2d 30 (Fla. 1st DCA 1976) (issue of degree of force under § 794.011(3) was a jury question).


text:
    Richard J. McDONALD and Theresa C. McDonald, his wife, Appellants/Cross-Appellees, v. Robert C. McGOWAN, Albert E. Allmon and Sharon M. Allmon, his wife, Appellees/Cross-Appellants.
    No. 80-43.
    District Court of Appeal of Florida, Fifth District.
    July 8, 1981.
    Rehearing Denied Sept. 2, 1981.

      Joe Teague Caruso, of Wolfe, Kirschenb-aum, Caruso, Mosley, Scott & Kabboord, Cocoa Beach, for appellants/cross-appellees.
    Carl W. Pearson, of Carl W. Pearson, P. A., Titusville, for appellees/cross-appel-lants, Albert and Sharon Alimón.
    No appearance for appellee/cross-appel-lant Robert C. McGowan.
   SHARP, Judge.

After both parties presented their evidence the trial judge directed a verdict against the McDonalds on their suit against the Allmons for specific performance and tortious interference with a real estate contract. He also directed a verdict against the Allmons on their countersuit against the McDonalds for slander of title. The parties appeal and cross-appeal both rulings. We reverse the rulings directing verdicts against the McDonalds because the record establishes they presented prima fa-cie grounds for relief, and the causes of action should have therefore been resolved by the trier of fact. We affirm the directed verdict on the Allmon’s counterclaim because no prima facie basis for relief was presented.

When a judgment based on a directed verdict is appealed, this court must read the evidence in a light most favorable to the party against whom the verdict is directed, resolving every conflict and inference for that party. Balart v. Michel’s Kartway, Inc., 364 So.2d 90 (Fla.3d DCA 1978). Only if we conclude that the trier of fact could not have reasonably differed as to the establishment of a material fact or inference and the moving party was entitled to a judgment as a matter of law, can we affirm the judgment. Allstate Ins. Co. v. Gordon, 364 So.2d 44 (Fla.3d DCA 1978), cert. denied, 375 So.2d 910 (Fla.1979); Kilburn v. Davenport, 286 So.2d 241 (Fla.3d DCA 1973), cert. denied, 295 So.2d 301 (Fla. 1974).

The record established that on approximately February 18, 1977, McDonald entered into a real estate purchase contract with one McGowan, the then owner of some acreage located in Brevard County, to buy the land for $10,000. McDonald intended to build a residence on the property. At the time of the litigation McGowan had prudently left the jurisdiction. McGowan had given Guest Realty an exclusive listing on the property and Mr. Wickersham, a broker, and Mrs. Stoll, a salesperson, were handling the transaction for Guest.

Sometime in January of 1977, Alimón saw McGowan’s property and observed Guest Realty’s sign on the land, as well as another older realtor’s sign. He checked with his own broker to see if the property was in multiple listing. At that time it was not. He then discovered McGowan’s identity through the tax rolls, and contacted him directly concerning the land. Alimón also wanted the land to build his residence on it. McGowan told Alimón the property was not listed with a broker and he was free to sell it. By a letter dated February 11, 1977, Alimón asked McGowan if he could put a deposit on the lot saying, “This would make me feel better .... ” McGowan replied by a letter dated February 21, 1977 that he preferred not to accept a deposit from Ali-món on the property because of reasons “I have explained” (but not disclosed in the record). McGowan told Alimón he would sell the property to the first person who came up with $10,000 cash. Within a very few days Alimón had a title company do a title search, and McGowan and he closed their sale on March 4, 1977.

Alimón testified he had no knowledge of McDonald’s contract. However, Mr. Wick-ersham and McDonald both testified Ali-món admitted to them, shortly after the closing, that McGowan had told him McGowan was holding a deposit for another person on the land. The real estate witnesses all testified that when a person is holding a deposit from another on land, there may or may not be a contract. The Allmon-McGowan closing took place under very rushed circumstances. The next day when McDonald confronted Alimón on the property and learned for the first time of Allmon’s purchase, Alimón was calm and appeared to McDonald as having expected him. Alimón had with him in his camper all of the closing documents and the deed to show McDonald. In an effort to protect his interest in the property pending a resolution of the dispute, McDonald had his contract with McGowan recorded.

I. COUNTERCLAIM: SLANDER OF TITLE

The tort of slander of title is defined as making a false or malicious oral or written statement which disparages a person’s title to real property, causing him damage. Old Plantation Corp. v. Maule Industries, Inc., 68 So.2d 180 (Fla.1953). There was no evidence nor reasonable inference from the evidence that the contract recorded by McDonald was false nor that his action in recording it was malicious. McDonald had an enforceable contract to purchase real estate and he only sought to protect his rights under the contract, such as they were, by recording it. Further, Alimón failed to establish he suffered any damage as a result of the contract being recorded. Entry of the directed verdict on the counterclaim was correct. Allstate Ins. Co. v. Gordon, 364 So.2d 44 (Fla.3d DCA 1978).

II. SPECIFIC PERFORMANCE

The law in this jurisdiction is well established that a person purchasing property with notice that the seller had contracted to convey it to another may be compelled to perform the contract in the same manner as the seller would have been required to do, had he not transferred the legal title. Hartford Fire Ins. Co. v. Brown, 119 Fla. 610, 160 So. 657 (1935); Dunson v. Stockton, Whatley, Davin & Co., 346 So.2d 603 (Fla. 1st DCA 1977); La Guardia v. Perez, 339 So.2d 308 (Fla.3d DCA 1976); See Fraser v. Cohen, 159 Fla. 253, 31 So.2d 463 (1947).

The key material issue in this case was whether or not Alimón had knowledge of sufficient facts to charge him with implied knowledge of McDonald’s prior contract. Implied notice is:

[N]otice inferred from the fact that the person had means of knowledge, which it was his duty to use and which he did not use .... A person has no right to shut his eyes or ears to avoid information, and then say that he has no notice; that it will not suffice the law to remain willfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand.

Sapp v. Warner, 105 Fla. 245, 141 So. 124 at 127 (1932).

Generally the determination of whether there are sufficient facts known to require further inquiry is one of fact that should be determined by the trier of fact. Rolland v. Thompson, 305 So.2d 239 (Fla. 1st DCA 1975). The burden of proof of one’s status as a bona fide purchaser (without notice) is generally on the person claiming its protection. Henderson Development Co., Inc. v. Gerrits, 340 So.2d 1205 (Fla.3d DCA 1976), cert. denied, 348 So.2d 948 (Fla. 1977). Only rarely is the record so clear that a judgment can be directed as a matter of law. See Florida Power & Light Co. v. Rader, 306 So.2d 565 (Fla. 4th DCA 1975); O’Neal v. Coral Gables, 294 So.2d 102 (Fla.3d DCA), cert. denied, 303 So.2d 640 (Fla.1974). Where as in this case, there are conflicting inferences to be drawn from the circumstances, where there is a means of learning about a prior contract which is not pursued, and where there is a question of credibility of witnesses, the issue of implied notice should be determined by the trier of fact. Kilburn v. Davenport, 286 So.2d 241 (Fla.3d DCA 1973); See McCausland v. Davis, 204 So.2d 334 (Fla.2d DCA 1967), cert. denied, 212 So.2d 869 (Fla.1968); Applefield v. Commercial Standard, Ins. Co., 176 So.2d 366 (Fla.2d DCA), cert. denied, 183 So.2d 209 (Fla.1965).

III. INTERFERENCE WITH A CONTRACT RIGHT

The tort of interference with a contract right, similar to interference with a business relationship, is recognized in this jurisdiction. Young v. Pottinger, 340 So.2d 518 (Fla.2d DCA 1976); Smith v. Ocean State Bank, 335 So.2d 641 (Fla. 1st DCA 1976); J. Rolfe Davis, Inc. v. Symon, 232 So.2d 439 (Fla. 4th DCA 1970). The elements of this tort are:

(1) The existence of a contract;
(2) The defendant’s knowledge of the contract;
(3) The defendant’s intentional procurement of the contract’s breach;
(4) Absence of any justification or privilege;
(5) Damages resulting from the breach.

The appellee argues there was no showing of malice or fraud on Allmon’s part as regards McDonald, and therefore an essential element of the tort was not established. But it appears to us the better view is that actual ill-will or fraud is not an essential element of the tort where the record shows a purposeful interference with a prior contract right. Smith v. Ocean State Bank; Blum v. William Goldman Theatres, Inc., 69 F.Supp. 468 (E.D.Pa.1946), modified, on other grounds 164 F.2d 192 (3d Cir. 1947); 45 Am.Jur.2d Interference § 4 (1969).

All of the elements of this tort were established prima facie by McDonald in this ease. The element of Allmon’s knowledge of the prior contract, as discussed above, could have been established from the circumstances as a matter of implied notice. This was an issue which should have been determined by the jury because the evidence permitted different reasonable inferences.

For the reasons stated above, this cause is

AFFIRMED IN PART AND REVERSED IN PART.

      . Smith v. Ocean State Bank, 335 So.2d 641 (Fla. 1st DCA 1976); Restatement (Second) of Torts § 766 (1977).

      . Serafind v. Palm Terrace Apartments, Inc., 343 So.2d 851 (Fla.2d DCA 1976).

      . 45 Am.Jur.2d Interference § 11 (1969).

      . John B. Reid & Associates, Inc. v. Jimenez, 181 So.2d 575 (Fla.3d DCA 1965).


author: COBB, Judge.

text:
    Robert Max HAIR, Appellant/Cross-Appellee, v. Bonnie Peavy HAIR, Appellee/Cross-Appellant.
    Nos. 80-773, 80-1400.
    District Court of Appeal of Florida, Fifth District.
    July 8, 1981.
    Rehearing Denied Aug. 3, 1981.

      Tanya M. Plaut, Orlando, for appellant/cross-appellee.
    William E. Kuntz, of Smith, Hulsey, Schwalbe & Nichols, Jacksonville, for appel-lee/cross-appellant.
   COBB, Judge.

This is an appeal by the husband and a cross-appeal by the wife from a final judgment of dissolution terminating a nineteen-year marriage. The couple had no children. At the time of dissolution, the parties owned two residences, a condominium and a house, with a total approximate value of $260,000 and encumbered to the extent of some $126,000. The parties had joint debts of some $70,000.

The husband, who holds a degree in dentistry, now derives his income from various businesses and investments, including a controlling interest in Wymodak, Inc. The trial court found his stock interest therein to be worth $405,000. In the year and a half preceding the dissolution, the husband derived an income from Wymodak in the amount of $150,000, which represents an average annual income of $100,000. At the time of dissolution, he had not filed a federal income tax return since 1973, and was facing a potential income tax liability of $250,000. He also owned a 1976 Lincoln Continental and a 1979 Buick Riviera.

The wife, who was thirty-eight years old at the time of dissolution, had an associates degree in general studies and had worked fulltime for no salary in the husband’s dental office during the earlier years of the marriage. She also had worked fulltime as a mail clerk for three years while her husband was in dental school, but has not worked in recent years.

The dissolution was bitterly contested. The husband opposed the dissolution, and demanded court-ordered counselling of the parties, which was denied. Ultimately, the trial court found the marriage to be irretrievably broken.

In its final judgment of dissolution, the trial court awarded the wife $1,300 per month rehabilitative alimony for a period of four years. The trial court also awarded the wife as lump-sum alimony the husband’s interest in the house and condominium. However, the wife became liable for the total indebtedness on both. The husband was further required to transfer title of the Buick Riviera to the wife and the wife became responsible for all the payments subsequent to the transfer. Each party was permitted to retain his or her personal property, clothing, jewelry, etc. The husband was permitted to retain all his interest in Wymodak, Inc. The husband was made solely responsible for the $70,000 in joint debts. He was also made solely liable for the first $150,000 of liability for the taxes that were not paid during the years of the marriage.

The original final judgment directed the husband to pay the wife’s reasonable attorney’s fees and costs in an amount to be determined upon subsequent hearing. This provision was modified in that the husband was directed to pay the wife’s costs, expenses, and attorney’s fees that she was required to expend in connection with her efforts to compel the husband to provide discovery. The court also reserved jurisdiction to determine the wife’s right to reasonable attorney’s fees and costs for all other aspects of the divorce proceeding. The trial court heard evidence and testimony of the wife’s costs and attorney’s fees; it thereafter ordered the husband to pay $10,000 towards the wife’s attorney’s fees and $2,877.92 towards the costs incurred by her. Both parties appeal the final judgment of dissolution.

We find no merit in the issues raised by the appellant husband. First, it was within the sound discretion of the trial court to deny the husband’s motion for marriage counselling. See § 61.052, Fla.Stat. (1979). Second, there was competent and credible evidence to support the trial court’s finding in regard to the value of the Wymo-dak stock. Third, it was within the discretion of the trial court in attempting “to do equity and justice between the parties” to order the husband to pay the first $150,000 of tax liability for his previous years of non-filing. See § 61.08, Fla.Stat. (1979); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Duncan v. Duncan, 379 So.2d 949 (Fla.1980).

On her cross-appeal, the wife contends she should have been awarded permanent periodic alimony instead of rehabilitative alimony for four years. The first question is whether or not determination as to whether periodic alimony should be rehabilitative or permanent is a question of law or a matter of discretion for the trial court. See Canakaris 382 So.2d at 1202. According to the recent case of Wagner v. Wagner, 383 So.2d 987 (Fla. 4th DCA 1980), the characterization of alimony as rehabilitative rather than permanent is a legal question and not a matter of discretion. As authority for this statement, the Fourth District cited Canakaris, but did not specify any particular page or paragraph of that opinion.

In Canakaris, the only discussion of rehabilitative alimony is found in dictum at page 1202 thereof, and reads:

... Although rehabilitative alimony is not at issue in these proceedings, it is necessary to define its purpose in order to distinguish it from permanent periodic alimony. The principle purpose of rehabilitative alimony is to establish the capacity for self support of the receiving spouse, either through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills. Reback v. Reback, 296 So.2d 541 (Fla.3d DCA 1974). Where appropriate, rehabilitative alimony may be converted to permanent periodic alimony.

In G’Sell v. G’Sell, 390 So.2d 1196 (Fla. 5th DCA 1980), this court, citing Canakaris and Reback, held that where the record was devoid of any evidence as to the wife’s potential for rehabilitation (such evidence would be prior education, skills, training, or other evidence of capacity for self support), then the award of rehabilitative, as opposed to permanent, alimony was erroneous as a matter of law. In that case the wife, after a twenty-year marriage and three children, had only a seventh-grade education, and had never in her life been employed. She had no training, was afflicted with health problems, and, essentially, was unemployable. There was no property to be distributed to her; her only source of support was the alimony to be derived from her husband’s job income. The trial court’s award of two-year rehabilitative alimony was reversed for entry of an award of permanent alimony.

In the instant case, unlike G’Sell, the record is not devoid of evidence that the wife can be rehabilitated. An employment counselor testified at trial that she is a woman of high average intelligence with the potential of learning various skills or trades, such as secretarial or design work, dental hygiene, and computer programming, by returning to school for two to four years. Moreover, Bonnie Hair, unlike Yero-nica G’Sell was awarded substantial lump-sum alimony in the equity value of the house and the condominium, an approximate amount of $134,000. No children were born of this marriage to impede any economic activities of the wife outside the home, and she is still relatively young and in good health. The wife’s own testimony at trial indicated intelligence and a capacity for independence and initiative.

Unlike G’Sell, we are not dealing in the instant case with a record devoid of evidence of the potential for self support nor a situation wherein the wife receives nothing from the marriage except periodic alimony. Therefore, we are not dealing with a clear question of law, as contemplated by Wagner, but with an area wherein the trial judge “possesses broad discretionary authority to do equity between the parties.” Canakaris, 382 So.2d at 1202. There are various remedies at the disposal of the trial judge to accomplish this, and appellate courts must review the over-all scheme reflected by the trial court’s judgment as a whole, rather than to review independent aspects thereof. Id. at 1202.

In further elucidating the formula for appellate review in such matters, the Cana-karis opinion continues:

In order to properly review orders of the trial judge, appellate courts must recognize the distinction between an incorrect application of an existing rule of law and an abuse of discretion. When a trial judge fails to apply the correct legal rule, as when he refuses to terminate periodic alimony upon remarriage of the receiving spouse, the action is erroneous as a matter of law. This is not an abuse of discretion. The appellate court in reviewing such a situation is correcting an erroneous application of a known rule of law.
However, where the action of the trial judge is within his judicial discretion, as in the establishment of the amount of alimony or award of child custody, the manner of appellate review is altogether different.

Judicial discretion is defined as:

The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.

1 Bouvier’s Law Dictionary and Concise Encyclopedia 804 (8th ed. 1914). Our trial judges are granted this discretionary power because it is impossible to establish strict rules of law for every conceivable situation which could arise in the course of a domestic relation proceeding. The trial judge can ordinarily best determine what is appropriate and just because only he can personally observe the participants and events of the trial.

We cite with favor the following statement of the test for review of a judge’s discretionary power:

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.
Delno v. Market Street Railway Company, 124 F.2d 965, 967 (9th Cir. 1942).
In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men-could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness. [Emphasis added].

Utilizing the foregoing test, we cannot say that the judgment of the trial court, viewed in its totality, reflects a view which no reasonable man would take. Reasonable men could differ as to its propriety in regard to the alimony question presented by the cross-appeal.

There is a basic flaw in the wife’s argument. In her brief she concedes that “although the amount of the alimony award is low, it is arguably within the broad realm of judicial discretion.” The amount of periodic alimony, therefore, is not challenged on appeal, only the classification of that alimony as rehabilitative rather than permanent. But the wife’s own evidence at trial indicates that, with four years of additional schooling, she can earn an amount very nearly equivalent to the periodic alimony. A reasonable man could conclude that the wife’s earning capacity in four years, added to the earning value of her equity in the condominium and the house, should produce a total annual income approximating $32,-000, the amount appellee argues was shown by the evidence as necessary to sustain her annually in a manner “reasonably commensurate with the standard established during the marriage.” How, then, can an appellate court find an abuse of discretion by the trial judge?

While we may agree with appellee that the amount of alimony seems low, that is not the issue presented to this court. If appropriate, as pointed out in Canakaris, “rehabilitative alimony may be converted to permanent periodic alimony.” That conversion, however, must be made, under the facts of the instant case, by the trial court, not the appellate court, upon timely application preceding the expiration of four years. Such an application, of course, should be made if the wife is unable to establish the capacity for self-support.

The wife also maintains on appeal that the trial court erred in not awarding her an attorney fee greater than $10,000 from the husband. Again, this involves an area wherein the trial court is vested with broad discretion. Hill v. Hill, 326 So.2d 207 (Fla. 1st DCA 1976). It is not necessary that we agree with the trial court, only that we find that reasonable men could agree with him, in order to affirm.

The judgment below is AFFIRMED.

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


author: SCHEB, Chief Judge.

text:
    Maria DeLUCA, Petitioner, v. Walter HARRIMAN and Pedro Vasallo, Respondents.
    No. 80-1757.
    District Court of Appeal of Florida, Second District.
    July 8, 1981.
    Rehearing Denied Aug. 31, 1981.

      B. Lee Elam, Law Office of B. Lee Elam, Brandon, for petitioner.
    David A. Maney of Gordon & Maney, Tampa, for respondents.
   SCHEB, Chief Judge.

Maria DeLuca challenges the trial court’s order dismissing her suit against Walter Harriman and Pedro Vasallo for lack of prosecution. We agree that her suit was improperly dismissed, and we reverse.

In September 1976 Ms. DeLuca sued Jer-nigan Trucking.Company, lessee, and American Bankers Insurance Company, insurer, seeking damages for injuries she suffered as a result of a vehicular accident which occurred on May 16. During the trial of that cause in July 1978, DeLuca took a nonsuit as authorized by Florida Rule of Civil Procedure 1.420(a).

On November 1, 1978, DeLuca filed a second suit seeking damages for her injuries. This time she named Walter Harri-man, driver, and Pedro Vasallo, owner, as defendants. Shortly thereafter Jernigan and American Bankers, the defendants in the prior suit, moved the court to enter a cost judgment against DeLuca in the prior litigation. The court granted the motion and entered a cost judgment against DeLu-ca on January 2, 1979. Thereafter, American Bankers, defendants in the first suit, moved to abate DeLuca’s second suit until she paid the cost judgment in the suit where she sued American Bankers, and on March 6, 1979, the trial court entered an order abating the second suit “until DeLuca paid the cost judgment in the prior suit.”

On May 14,1980, approximately fourteen months later, DeLuca tendered payment of the judgment without interest, and filed an amended complaint against Harriman, driver, and Vasallo, owner/lessor, as well as against Jernigan, lessee, and American Bankers, insurer for lessee, the defendants in the initial action. On May 27 Harriman and Vasallo moved to dismiss DeLuca’s second suit pursuant to Florida Rule of Civil Procedure 1.420(e), which provides for dismissal for lack of prosecution where no record activity has taken place for at least a year. On August 27 the trial court dismissed the second suit against Harriman and Vasallo for DeLuca’s failure to prosecute. This appeal ensued.

Florida Rule of Civil Procedure 1.420(a) provides for a broad right of voluntary dismissal for the plaintiff, which, in a majority of cases, the plaintiff would use for tactical advantages. However, section (d) of the rule provides that the litigant who benefits from exercise of this right must bear the cost of instituting the first action by requiring the litigant to pay the costs incurred by the defendant in the first action prior to commencing another law suit against the same adverse party. The rule also provides that the court shall stay any further proceedings between the parties until the party seeking affirmative relief has complied with the order for payment of costs.

On the other hand, where a voluntary dismissal is taken against one defendant and suit is instituted against another, the plaintiff is not using a voluntary dismissal as a tactical tool to enforce that party’s rights against the first defendant. Therefore, the rationale of the rule, to require the plaintiff to bear the cost of using a voluntary dismissal as a tactical tool against a particular defendant, is inapplicable. Accordingly, the rule applies only when the adverse parties are identical.

In the instant case, American Bankers moved for an order of abatement in the plaintiff’s suit against Harriman and Vasal-lo. At that time, American Bankers had not been named as a defendant in the second suit. American Bankers advised the court that it was obligated to defend the new action as its insurance coverage to Jernigan extended to Harriman and Vasal-lo. Therefore, American Bankers argued that it was a real party in interest and as such was entitled to the rule’s application.

The clear language of the rule requires identity of the adverse parties and to apply the rule merely because there is some relationship between the first and second defendants would raise definitional problems making the rule’s application uncertain.

Therefore, as the rule requires identity of adverse parties, and as the defendants in the second suit were not identical to those in the first suit, the trial court erred in entering its order of abatement. Fla.R. Civ.P. 1.420(d). See Field v. Nelson, 380 So.2d 547 (Fla.2d DCA 1980).

Inasmuch as the trial court entered an order abating the second suit, it was not incumbent upon DeLuca to pursue any further record activity.

Accordingly, we vacate the order of dismissal as to Harriman and Vasallo and remand for further proceedings consistent with this opinion.

GRIMES and CAMPBELL, JJ., concur.

      . Jernigan and American Bankers also filed a motion to dismiss and/or strike on the same date which the court apparently considered. However, since the court did not dispose of that motion in its order of August 27, 1980, our opinion addresses only the dismissal of DeLu-ca’s suit against Harriman and Vasallo.

      . DeLuca petitioned this court for a writ of common law certiorari contending that the trial court, in dismissing her case for lack of prosecution, departed from the essential requirements of the law. Pursuant to Florida Rule of Appellate Procedure 9.040(c), we accepted De-Luca’s timely filed petition as a notice of appeal from the order of August 27, 1980, dismissing her action against Harriman and Vasallo.


text:
    In re DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. ST. REGIS PAPER COMPANY, et al., Appellees.
    No. WW-219.
    District Court of Appeal of Florida, First District.
    July 21, 1981.
    Rehearing Denied Sept. 18, 1981.

      Alan E. DeSerio, Appellate Counsel, Joe Fixel, Trial Counsel, and H. Reynolds Sampson, Gen. Counsel, Dept, of Transp., Tallahassee, for appellant.
    Edwin B. Browning, Jr., Madison, for ap-pellee, Rosalie N. Priest.
    Ernest M. Page, Jr., Madison, for appel-lees, Wilmer J. Coggins and Deborah R. Coggins.
   LILES, WOODIE A. (Retired), Associate Judge.

The State Department of Transportation (DOT) appeals from a final judgment, after a jury trial, entered in an eminent domain proceeding. It assigns as error the trial court’s directing a verdict based upon the assumption that the worst possible damage would occur to the remaining property, i. e., a total deprivation of access, and the trial court's awarding of fees and costs.

This cause arose from an eminent domain proceeding where DOT acquired property for the reconstruction and rerouting of U.S. 90 (State Road 10) in Madison County, Florida, in conjunction with the construction of a new bridge across the Suwannee River. The project required the acquisition of 2.53 acres from Parcel 102 and .6 acres from Parcel 103. Prior to the acquisition, a trail road was used to provide access to both parcels. However, this trail road was cut by the State’s acquisition, thus raising the question of what access remained.

During the trial of its case, DOT attempted to offer into evidence certain plans and specifications to demonstrate that part of the construction plans for the highway included “standard turnouts” which would be built to allow access to Parcels 102 and 103. These “standard turnouts” were to be demonstrated by incorporation of a “Standard Detailed Turnout Index Number 515” and the Standard Specification Book. After extensive examination, the trial court initially admitted the entire set of plans and documents so DOT could show how access would be afforded to Parcel 102. When the same was attempted for Parcel 103, it became clear that the turnouts were not provided on the plans themselves. The trial judge then denied admission into evidence of DOT’s plans and specifications as they related to access, if any, on either or both of the parcels and further refused to admit engineering testimony regarding the manner of construction. He also directed a verdict for the landowners based upon the assumption that the worst possible damage would occur to the remaining property, i. e., total deprivation of access.

Our examination of the State’s plans and specifications confirms that there was nothing in them that would show any access to the landowners’ property. Further, there was no authority conferred upon any designated engineer or other testifying official to make commitments for DOT on the details of the proposed construction. Accordingly, absent a binding witness or specific plans, the trial judge did not err in denying admission of the disputed evidence and testimony and in granting the landowners’ motion for directed verdict on the subject of access. See Hodges v. Jacksonville Transportation Authority, 353 So.2d 1211, 1214 (Fla. 1st DCA 1977). See also Central & S. Fla. Con. District v. Wye River Farms, Inc., 297 So.2d 323, 328-9 (Fla. 4th DCA 1974).

The judgment is therefore AFFIRMED.

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