author: FERGUSON, Judge.

text:
    Nathan LAUFER and Norma Laufer, Appellants, v. NORMA FASHIONS, INC., Appellee.
    No. 81-1367.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.
    Pedro Osvaldo Jimenez-Pages, Miami, for appellants.

      Yvette G. Murphy, Coral Gables, for ap-pellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Appellants are the former president of appellee corporation and his wife. They appeal from an adverse judgment entered by the court without a jury on a complaint for breach of contract. The two points raised by this appeal are: (1) whether the contract was so ambiguous as to require the court to construe it as a factual issue, and if so (2) whether the trial court’s resolution of the issue is supported by competent substantial evidence. We answer both questions affirmatively.

The undisputed facts are as follows: Appellants entered into a written agreement on July 15, 1977 to sell back to the corporation all of their shares of stock. The terms of the agreement required them to satisfy an outstanding loan obtained from the Small Business Administration (SBA), estimated by appellants to have an outstanding balance of approximately $6,200.00 as of the date of the agreement. Appellants received $3,000.00 upon execution of the agreement and were to receive factory-finished products worth $5,000.00 from appel-lee after satisfying their contractual obligations.

The SBA loan — which is the center of the controversy — was initially made to appellants to start the business. It was secured by a mortgage on appellants’ home. Without the appellee corporation’s knowledge or approval, appellant, Nathan Laufer, on July 14, 1977, one day prior to executing the agreement, wrote two checks from the corporate checking account (using bank coun-terchecks) payable to the SBA for a total amount of $2,724.00. These payments would have reduced the outstanding obligation from $9,170.00 to the $6,446.00 (approximately $6,200.00) amount which appellants represented as being due. An officer of the bank on which the checks were drawn became suspicious of the unnumbered coun-terchecks, one of which was post-dated. He called an officer of appellee corporation and was instructed to dishonor the checks because (1) the checks were not authorized by the corporation and (2) the corporate account did not contain sufficient funds to cover the checks.

Since the loan still had not been fully satisfied (by the amount of the dishonored checks), the SBA threatened to levy against the corporation’s equipment rather than foreclose the mortgage on appellants’ home. To prevent interruption of the business, the corporation was forced to enter into an agreement with SBA to satisfy the balance on the loan.

The pertinent contract clause provides: 3. The stockholders shall within fifteen days from the execution of this instrument, satisfy that certain debt in the proximate amount of $6,200.00 presently owed to or guaranteed by The Small Business Administration, and submit proof of payment and liquidation of said debt, (emphasis supplied).

Appellant, Nathan Laufer, contends that on the date he signed the checks for payment of the loan from the corporation’s account he was authorized as a corporate officer to do so, and that by terms of the agreement they were personally obligated to pay no more than $6,446.00 (approximately $6,200.00) of the outstanding SBA loan.

Although the agreement required appellants to satisfy their personal indebtedness to SBA, and fixed the amount at approximately $6,200.00, there was no agreement that appellee-corporation would be responsible for the amount of the loan which exceeded $6,200.00 thereby raising a sharply disputed issue as to which party was obligated to pay the difference. The trial court, in rejecting appellant’s contentions, found that “it was a condition precedent to [appellee’s] performance that [appellants] satisfy in full [the] debt owed to the Small Business Administration.”

A phrase in a contract is ambiguous when it is uncertain of meaning and disputed, Friedman v. Virginia Metal Products Corp., 56 So.2d 515 (Fla.1952), and must be determined as an issue of fact. Goldbloom v. J. I. Kislak Mortgage Co., 408 So.2d 748 (Fla. 3d DCA 1982); Hoffman v. Terry, 397 So.2d 1184 (Fla. 3d DCA 1981); Ellenwood v. Southern United Life Ins. Co., 373 So.2d 392 (Fla. 1st DCA 1979). The trial court properly considered all the parol evidence which tended to clarify the terms of the agreement and decided the controversy as an issue of fact, which finding is supported by the record. A finding of fact by a trial judge in a nonjury case will not be set aside on review unless totally unsupported by competent substantial evidence. Green v. Hartley Realty Corp. and Algo Realty Inc., 416 So.2d 50 (Fla. 3d DCA 1982) (1982); Oceanic International Corp. v. Lantana Boatyard, 402 So.2d 507 (Fla. 4th DCA 1981); Pryor v. Pryor, 274 So.2d 242 (Fla. 1st DCA 1973); Griffith Services, Inc. v. Walter Kidde Constructors, Inc., 262 So.2d 240 (Fla. 1st DCA 1972); Mogee v. Haller, 222 So.2d 468 (Fla. 1st DCA 1969).

Affirmed.

SCHWARTZ, J., dissents.

      . Because the loan contract, entered into before the corporation was formed, was not carried on the corporate records as a corporate obligation, appellees relied on appellants’ representation as to the amount of the unpaid balance.

      . Corporate records do not reflect how the loan proceeds were used. Four days before the agreement was signed, the SBA notified appellants that their loan was in a “serious delinquent status”; no installment payment had been made by appellant within the previous six months. Prior payments made to the SBA by the business were deducted from appellant’s salary.

      . On July 22, 1977, appellants gave the SBA a cashier’s check for $6,446.00, thereafter alleging that they had paid the “balance due” and satisfied all their obligations under the contract.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Fred CHAMPELOVIER, Appellant, v. METROPOLITAN DADE COUNTY and Otis Elevator, Inc., Appellees.
    Nos. 81-1798, 81-1957.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.
    Silver, Levy & Hershoff and Jay Levy, Miami, for appellant.
    Robert A. Ginsburg and Robert DuVal, Miami, Barwick, Caldwell & Currie and Lyndall M. Lambert, Miami Shores, for ap-pellees.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

There was no error harmful to the plaintiff-appellant in the substantive judgments sought to be reviewed, which are therefore affirmed. Addressing the only viable question he raises on the merits, we find ample evidence to justify submission of the issue of contributory or comparative negligence to the jury. Seibels, Bruce & Co. v. Giddings, 264 So.2d 103 (Fla. 3d DCA 1972), cert. denied, 269 So.2d 370 (Fla.1972); Domany v. Otis Elevator Co., 369 F.2d 604 (6th Cir. 1966), cert. denied, 387 U.S. 942, 87 S.Ct. 2073, 18 L.Ed.2d 1327 (1967).

We do hold, however, as conceded at oral argument, that the trial court erroneously assessed attorney’s fees in favor of Dade County under Section 57.105, Fla.Stat. (1979). The action brought as against that defendant clearly may not properly be regarded as frivolous so as to justify such a ruling, e.g., Parkway General Hospital, Inc. v. Stern, 400 So.2d 166 (Fla. 3d DCA 1981), and the order to that effect is consequently reversed.

Affirmed in part, reversed in part.


text:
    Sharon M. LADIN, Appellant, v. Carmen A. FISHER and M. H. Kantzler, the Personal Representative of and the Estate of Harold C. Fisher, Appellees.
    No. 81-1887.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.
    George, Hartz & McNary, Miami, Amy Shield Levine, Boca Raton, for appellant.
    Levine, Reckson, Reed & Geiger and Robert Geiger, Miami, for appellees.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Appellant, daughter of the testator, sought revocation of an order admitting to probate a will whereby her seventy-year-old father left the bulk of his estate to appellee, a thirty-year-old wife of two months. She contends that appellees, wife and personal representative of decedent, used their confidential relationship to exert undue influence on her ailing father in the preparation and execution of the will.

We have carefully examined the extensive record made in the trial court and find an absence of the clear and convincing evidence of undue influence which is required to set aside the will. Freedman v. Freedman, 345 So.2d 834 (Fla. 3d DCA 1977). We will not disturb the trial judge’s finding that “the decedent executed his Last Will and Testament... voluntarily of his own free will and volition and furtherance of his own testamentary intentions.” See In re Estate of Carpenter, 253 So.2d 697 (Fla.1971), appeal after remand, 289 So.2d 410 (Fla. 4th DCA 1974).

Affirmed.


text:
    Norman E. LUCKENBAUGH and Dania Luckenbaugh, his wife, Appellants, v. The SENGRA CORPORATION, Appellee.
    No. 81-2328.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.
    Thomas P. Bell, Miami, Richard H. W. Maloy, Coral Gables, for appellants.
    Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Philip G. Boggs and Sue Cobb, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Hammonds v. Buckeye Cellulose Corporation, 285 So.2d 7 (Fla.1973); Tippett v. Frank, 238 So.2d 671 (Fla. 3d DCA 1970); Velickovich v. Ricci, 391 So.2d 258 (Fla. 4th DCA 1980). See Pilafian v. Cherry, 355 So.2d 847 (Fla. 3d 1978).


text:
    Catherine TRIMBLE, Appellant, v. James TRIMBLE, Appellee.
    No. 81-2477.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.
    Kahn & Gustafson and Harry Hausman, Miami, for appellant.
    Arthur D. Frishman, Miami Beach, for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse the order of the trial court which dismissed the wife’s supplemental petition for modification because we find that the petition alleged a substantial change in circumstances so as to withstand a motion to dismiss. § 61.14, Fla.Stat. (1981); 25 Fla.Jur.2d Family Law § 483. Should the trial judge find that a modification of alimony is proper under the facts of this case, he is. of course free to award any type of alimony which in his discretion he deems appropriate including an award of the supportive spouse’s interest in the former marital home. Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980).

By this reversal, we express no opinion as ultimate disposition of the case, as it is clearly within the trial judge’s discretion to determine both the propriety of alimony and the source of payment.

Reversed and remanded for further proceedings.


text:
    George V. HOURIHAN and Katrina A. Hourihan, Appellants, v. GROSSMAN HOLDINGS LIMITED, Bleeman Holdings Limited, The Meridian Group Limited, and Markborough Properties Limited, d/b/a Homestead Properties, Appellees.
    No. 81-2579.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.
    Wilson E. Hodge, Homestead, for appellants.
    Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Rudolph F. Ara-gon, Miami, for appellees.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The judgment under review is vacated and the cause remanded for a retrial to be conducted in accordance with the principles stated in the decision of the supreme court in this cause, Grossman Holdings Ltd. v. Hourihan, 414 So.2d 1037 (Fla.1982) and our order entered in accordance with that opinion. Hourihan v. Grossman Holdings Ltd., 416 So.2d 908 (Fla. 3d DCA 1982).


author: JOANOS, Judge.

text:
    SEWELL PLASTICS, INC., Self Insured, Appellant, v. Hazel JACKSON, Appellee.
    No. AG-340.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1982.
    Bernard J. Zimmerman and Michael M. O’Brien, of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    John F. Wilhelm, Orlando, for appellee.
   JOANOS, Judge.

In this appeal from a worker’s compensation order appellant claims the deputy commissioner erred in determining that: the injury was compensable under the theory of exposure or repeated trauma; claimant gave her employer proper notice of the injury; there was a causal relationship between the industrial accident and the injury; attorneys fees were awardable; and employer should furnish claimant such medical care and attention as the nature of the injury and process of recovery may require.

The findings regarding compensability, causal relationship, notice, and attorneys fees are supported by competent substantial evidence, the correct legal standards having been applied, and we affirm as to them. As to the award of future medical care, however, the deputy erred because no claim for such benefits had been made either in the claim for benefits, the notice of hearing, or on the pre-trial stipulation sheet. At the start of the hearing, the deputy announced the issues which had been noticed for hearing; additional remedial care was not among them. See Austin Co. v. Lindenberger, 410 So.2d 601 (Fla. 1st DCA 1982); Goodyear Service Store v. Rockey, 382 So.2d 816, 817 (Fla. 1st DCA 1980). Although upon questioning by her attorney, and over objection of counsel for E/C, claimant testified that her hand still hurt and she would like to return to Dr. Bourguignon, there had been no claim for future remedial care such that the issue was properly noticed for resolution at that hearing. Therefore, the award of future remedial care is stricken from the order.

Claimant’s motion for attorney’s fees for appellate services is granted. Appellant shall pay to claimant’s attorney a fee in the amount of $2,000.00, which we find to be a reasonable sum. Chapter 440, Florida Statutes (1979) contained no specific authorization for the award of appellate attorney’s fees at the time that the injury occurred. However, this Court has previously determined that a fee is awardable pursuant to Section 59.46, Florida Statutes (1979) where an attorney’s fee was awarda-ble at the hearing level under Section 440.-34(2)(a)-(c), Florida Statutes (1979). Jones v. K & L Contractors, 392 So.2d 375, 377 (Fla. 1st DCA 1981); Lehigh Corp. v. Byrd, 397 So.2d 1202, 1204-5 (Fla. 1st DCA 1981). That is the situation here.

The order is affirmed as modified.

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


author: WIGGINTON, Judge.

text:
    Michael V. COSTELLO, Appellant, v. C. G. STRICKLAND, Jr., D. E. Watson, T. L. Barton, and T. H. Bigham, Jr., Appellees.
    No. AJ-192.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1982.
    Appellant in pro per.
    Jim Smith, Atty. Gen., and Shirley A. Walker, Asst. Atty. Gen., Tallahassee, for appellees.
   WIGGINTON, Judge.

Costello appeals the trial court’s denial of a habeas corpus petition in which he had requested a hearing and release from “Close Management I” (CM-1) confinement at Florida State Prison. Because it appears Costello’s petition stated a preliminary basis for relief and was not meaningfully refuted by the respondents, we believe the trial judge erred in dismissing this cause.

The petition alleged that Costello, a prisoner at the Lake Butler Reception and Medical Center, was transferred to CM-1 confinement at Florida State Prison as a direct result of prison officers finding contraband hidden in his belongings. In the petition, he admitted that a firearm was discovered in a radio and that an information charging him with its possession had been filed in circuit court, but he denied having possession or control of the radio. The petition stated that Costello had not been accorded a hearing. The respondents, prison system personnel, filed a motion to dismiss, asserting various legal deficiencies in Costello’s petition and arguments. The trial judge denied the petition for habeas corpus, citing, without comment, the case of Despres v. Strickland, 408 So.2d 1092 (Fla.1981).

Unfortunately, neither we nor the trial court can determine the applicability of Despres because the supreme court published no opinion, issuing instead a terse denial of habeas corpus in that case. Therefore, neither we nor the trial court can glean the facts or properly speculate as to the holding. On appeal, the respondents now argue that Despres was a five-time prison escapee whose confinement was justified to prevent another escape; this, they argue, similarly justifies Costello’s confinement. However, the record presented here does not contain evidence that Costello is an habitual escape risk. In fact, the unrefuted facts in the petition establish that Costello’s long prison record is “exemplary.”

Generally speaking, the test to determine whether certain pretrial detainment violates a detainee’s due process rights is whether the detainment amounts to punishment. Bell v. Wolfish, 441 U.S. 520, 535-37, 99 S.Ct. 1861, 1871-73, 60 L.Ed.2d 447 (1979). In other words, detainment cannot be permitted unless the state establishes that it is reasonably related to a legitimate governmental objective. See 441 U.S. at 539, 99 S.Ct. at 1874. We need not pass judgment on whether the guidelines for selecting prisoners for CM-1 confinement, as expressed in Florida Administrative Code Rules 33-3.081(2)(b)(1) or 33-3.-081(4), bear a reasonable relation to the legitimate and important goals of insuring a prisoner’s appearance at trial and maintaining the security of the institution. Here, the state has not established that Costello falls within those guidelines.

On this sparse record we are presented, through Costello’s recitation of facts in his petition, with an “exemplary” prisoner who is awaiting trial on charges that he possessed contraband which was found secreted in items that he neither possessed nor controlled. In filing a motion to dismiss, without responding to the petition’s merits, the respondents have not clearly shown that Costello has taken part in recent violent demonstrations, is an extreme escape risk, has exhibited a pattern of behavior requiring discipline, has caused injury or death, has been involved with acts which seriously interfere with the prison staff or their work, or that he would otherwise be a threat to safety or security. See Fla.Admin.Code Rules 33-3.081(2)(b)(1)(a)-(e); 33-3.081(4). In other words, there is no showing that Costello belongs in CM-1 confinement.

Consequently, we believe the trial court should make further inquiry. See Parker v. Cook, et al., 642 F.2d 865 (5th Cir. 1981). Although the Department of Corrections has promulgated rules to satisfy prisoners’ due process interests relating to administrative confinement, Florida Admin.Code Rule 33-3.081(5), the state does not contend that a hearing was held for Costello.

Accordingly, the order of the trial court is vacated and this cause is remanded with instructions that the state be permitted to respond properly to the judge’s order to show cause, directing its arguments, if any, to the merits of. Costello’s petition.

SHIVERS and SHAW, JJ., concur.


text:
    Jerry L. HURST, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-90.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1982.
    Appellant pro se.

      Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   PER CURIAM.

Appellant’s motion to dismiss has been treated as a motion to strike appellee’s answer brief for failure to timely serve it. The action of the Florida Parole and Probation Commission is affirmed. See Britt v. Florida Parole and Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982); Overfield v. Florida Parole and Probation Commission, 418 So2d 321 (Fla. 1st DCA 1982); and Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982).

McCORD, MILLS and ERVIN, JJ., concur.


text:
    Craig A. MARTIN, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-293.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1982.
    Appellant pro se.
    John C. Courtney, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Orlando, for appellee.
   PER CURIAM.

Appellee’s motion to dismiss has been treated as appellee’s answer brief. See McClain v. Florida Parole and Probation Commission, 416 So.2d 1209 (Fla. 1st DCA 1982). The action of the Florida Parole and Probation Commission is affirmed,

McCORD, MILLS and ERVIN, JJ., concur.


author: COWART, Judge.

text:
    Richard P. NIESZ, Appellant, v. Arthur H. GEHRIS, III, et al., Appellees.
    No. 81-668.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 1982.

      Richard P. Niesz, pro se.
    Eric A. Latinsky of Gary Smigiel, P. A., Daytona Beach, for appellee Gary Smigiel.
   COWART, Judge.

This case involves an action by buyers of land to rescind their purchase money mortgages because of failure of the seller to perform a covenant in the purchase contract.

Cushway owned a building subject to a first mortgage to Security First Federal and a second mortgage to appellant Niesz. Cushway, as seller, contracted to sell the property to appellees Gehris and Smigiel, as buyers, who agreed to assume the first and second mortgages and to execute third and fourth mortgages back to Cushway to secure a portion of the purchase price. The Cushway-Gehris-Smigiel contract of sale contained a provision that the building would be delivered to the purchasers in full compliance with all municipal building codes. The transaction was closed and thereafter the seller assigned to Steinbach his right to payments due under the purchase money promissory notes. Thereafter, the buyers filed a complaint against Cush-way and Steinbach. The complaint was repeatedly dismissed and amended. At one point, Steinbach filed a document stating that appellant Niesz had some interest in the purchase money notes and mortgages; the third amended complaint included Niesz as a defendant. Niesz then filed a notice showing that Cushway and Steinbach had assigned to him, Niesz, all of their interest in the purchase money notes and mortgages. A fourth amended complaint sought (count I) money damages from Cushway for breach of the sales contract provision that the building would comply with all municipal building code standards; (count II) compensatory and punitive damages for a misrepresentation that Cushway allegedly made at closing as to the building complying with all municipal building code standards, (count III) to set aside the purchase money notes and mortgages because there was no consideration for them because of Cushway’s breach of the sales agreement as alleged in count I, (count IV) an adjudication that the assignment to Niesz was void because it was made after the filing of a lis pendens in the cause, and (count V) a declaratory decree that the buyer did not have to pay on the purchase money note and mortgage until the court adjudicated the cause.

Apparently, Niesz filed a separate action to foreclose both purchase money mortgages, then moved to have his foreclosure action consolidated with the buyers’ action. This was done. At the commencement of the final hearing on the consolidated cases, the court indicated to counsel that there was some basic conflict between counts I and II seeking monetary damages and count III, whereupon counsel for the buyers indicated they were seeking to set aside, rescind or cancel the outstanding mortgages only and took an involuntary dismissal without prejudice as to the claims against Cushway for damages for breach of contract and fraud (counts I and II).

The trial court found and adjudicated: (1) that Cushway breached the sales contract covenant by failing to deliver the building in full compliance with all municipal building codes and with resulting damages to the buyers of $14,208.90; (2) that the buyers were $2,498.28 in arrears on the purchase money mortgage indebtednesses; (3) that Cushway made a misrepresentation as to the condition of the building; (4) that as a result of Cushway’s misrepresentation it would be inequitable to permit Niesz to accelerate the two purchase money mortgages; (5) that as to the $14,208.90 damages the buyers suffered, they would receive credit against the purchase money mortgages: $2,498.28 on the present arrear-ages and $11,710.62 as a setoff against the principal indebtedness of the third mortgage; and (6) that if the buyers did not otherwise made the mortgages current within 30 days, upon application of Niesz, a judgment of foreclosure would be entered. Niesz appeals.

If the seller had falsely and knowingly represented that his building complied with all existing municipal building code standards and that misrepresentation was material, and the buyers had relied on (and been induced by) that misrepresentation in contracting to' buy the building and had thereby suffered damages, the buyers could have either affirmed the contract and sued for monetary damages or could have disaf-firmed and sued to rescind the contract. The buyers could not have done both. In the latter instance, to obtain the remedy of rescission the buyers would have had to do equity by reconveying the property and all benefits received and in exchange would have been entitled to a return of all purchase money paid and if, when the misrepresentation was discovered, the transaction had already been closed, the buyers would have then been entitled to have had their purchase money notes and mortgages can-celled in the hands of the seller or others who were not good faith purchasers of such notes and mortgages. If for any reason the sellers were unable to themselves do equity or if for any reason the court could not effectively require the seller to restore the buyers’ consideration to them (such as if the purchase money notes and mortgages had been transferred to a good faith purchaser), then rescission would not be a proper remedy and the parties would be relegated to their remedies at law. However, in this case there is no suggestion that the seller’s representation as to the building’s compliance with the building code was made to induce the buyers to enter into the contract of sale.

The contract in this case contains a provision that the building would be delivered to the buyers in compliance with all building code standards. This implies that at the time the contract was executed the building may not have been up to code and that one of the seller’s contractual covenants was to put the building in that condition prior to delivery of the building to the buyers at closing. If this covenant was not performed at the time the contract provided for closing, but could be performed within a reasonable time, the buyers could have deferred closing until this condition was performed. If nonperformance of this covenant was not waived and was not discovered until after closing for some excusable reason (such as a misrepresentation as to that matter by the seller as alleged in count II of the complaint) such an executory covenant would survive the closing. The buyers could then affirm the contract and sue on the contract for compensatory damages sufficient to place the building in compliance with all building code standards as promised (this was the cause of action alleged in count I of the complaint) or, if such performance was a material and substantial provision of the contract, the buyer could disaffirm the contract and sue to rescind the contract. As in the case of fraud in the inducement, the buyers could not both rescind and recover money damages. In an action for rescission for substantial nonperformance of a contract, as in an action for rescission for misrepresentation in the inducement to enter into the contract, the buyers would have to return the property and all benefits received and would have been entitled to recover all funds paid and cancellation of their purchase money notes and mortgages. The cancellation of such purchase money notes and mortgages under these circumstances is but one incident of a rescission of the contract itself, part of the performance of which was the execution of such purchase money note and mortgage by the buyer. In this case, the buyers did not seek rescission of the contract for sale and purchase of the building and were, accordingly, not entitled to cancellation of their purchase money notes and mortgages, to suspend payment on them, or to any declaratory decree to that effect. Therefore, counts III and V did not state a cause of action under the circumstances alleged.

The title to the property which was the subject of the sales contract was in the buyers when this action was filed and the buyers sought no in rem relief against that property. For both of these reasons, the buyers had no proper reason to file a notice of lis pendens against the property incidental to their action and that notice served no legal purpose.

The buyers’ cause of action for breach of the contractual covenant relating to making the building comply with all municipal code standards was an action in personam against Cushway, the contracting party, for money damages.

The transfer of the purchase money notes and mortgages by the seller Cushway to appellant Niesz was effective to transfer the debts evidenced by such promissory notes. This is so, not because Niesz was a good faith purchaser, but because the notes are transferable and the buyer’s claim against Cushway for money damages for breach of contract gave the buyers no prejudgment claim against the debt evidenced by the purchase money promissory notes that would prevent their transfer or constitute any defense to payment of them. Nor did Cushway’s assignment of the purchase money promissory notes and mortgages to Niesz in any manner constitute any assumption by Niesz of Cushway’s in personam liability to the buyers for money damages for the breach of Cushway’s covenant in the sales contract relating to the condition of the building. Niesz, not Cush-way, owned the indebtedness evidenced by the purchase money notes and mortgages at the time of judgment and Cushway, not Niesz, was responsible for Cushway’s breach of contract liability. Therefore, it was error for the trial court to attempt to set off Cushway’s liability for breach of contract against the indebtedness owed Niesz on the purchase money notes and mortgages. The judgment entered below is reversed and the cause is remanded for entry of judgment in favor of Niesz on the buyers’ action (Case No. 80-320-CA-01-K) and for consideration of Niesz’ mortgage foreclosure action (Case No. 80-4159-CA-01-K).

REVERSED AND REMANDED.

ORFINGER, C. J., and SHARP, J., concur.

      . 7 S. Williston, A Treatise on the Law of Contracts § 926 n.16 (3d Ed. 1963).

      . Contracts for the sale and purchase of real estate are most commonly fully executed at closing, see, e.g., Sun First National Bank of Orlando v. Grinnell, 416 So.2d 829 (Fla. 5th DCA 1982) [1982 FLW 1235], but sometimes, as here, contain covenants that are not fully performed at or before closing.

      . 5 Corbin on Contracts § 1104 (1964).

      . As to attachment before debt is due, see section 76.05, Florida Statutes (1981); as to garnishment before judgment, see section 77.031, Florida Statutes (1981).


text:
    Richard Long CARLTON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1178.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 1982.
    Larry G. Turner and Robert S. Griscti, Gainesville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

This case involves the question of whether the description in a search warrant of the property for which search and seizure is authorized was sufficiently definite.

The affidavit for the search warrant presented as probable cause two controlled purchases of cannabis by an informant from appellant while appellant was seated in a certain specifically described 1977 Ford automobile. The search warrant did not restrict the search to cannabis, but authorized a search of the automobile and seizure of “all controlled substance and other matters of [sic] things pertaining or relating to said possession and sale of controlled substance violations of chapter 893, Florida Statutes.”

The search yielded cannabis and other controlled substances. Carlton appeals the trial court’s denial of his motion to suppress the property seized under the warrant, arguing that the description in the warrant was unconstitutionally vague.

Both the federal and Florida constitutions provide that a search warrant must specifically describe both the property to be searched and the property to be seized. U.S.Const. Amend. IV; Art. 1, § 12, Fla. Const. This constitutional requirement prohibits a warrant authorizing a general search. However, the description requirement “must be given a reasonable interpretation consistent with the type or character of the property sought.” North v. State, 159 Fla. 854, 32 So.2d 915 (1947). Thus, a distinction is made as to whether the property is inherently innocuous or inherently illegal. In United States v. Quantity of Extracts, Bottles, etc., 54 F.2d 643 (S.D.Fla.1931), the federal district court stated that “when dealing with property which is inherently innocuous, the affidavit and warrant should contain at least a designation by generic terms of the class, or classes, of property to be searched for and seized.” The court indicated, however, that where the property was not innocuous, but is “pri-ma facie contraband,” a looser description is allowable. Id. at 644. Accord, United States v. Tranquillo, 330 F.Supp. 871 (M.D.Fla.1971).

Appellant relies on Pezzella v. State, 390 So.2d 97 (Fla. 3d DCA 1980), review denied, 399 So.2d 1146 (Fla.1981), in which the warrant described the property to be seized as “Possession of a controlled substance: in violation of F/S/S 896.13 [893.-13].” The court read the warrant as authorizing seizure of all controlled substances and held that, “since the supporting affidavit referred, with specificity, to a particular controlled substance, there was no need or purposes shown as to order the seizure of any controlled substances. The officers had the ability and the information to properly describe what they were looking for. Such a command gave the executing officers carte blanche authority to rove through the defendant’s house, and with their lawful presence, conduct an exploratory search.” Perhaps the court in Pezzella was especially sensitive to the breadth of the description of the property to be seized because it related to a search of a home. In any event, here the warrant authorized the search of an automobile and the search of vehicles for contraband has long been, and still is, a special problem and a special situation with respect to expectations of privacy. See § 933.19, Fla.Stat. (1981); United States v. Ross, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

State v. McCrery, 402 So.2d 49 (Fla. 1st DCA 1981), review denied, 412 So.2d 467 (Fla.1982), approved a warrant authorizing the search of a residence which described the property to be seized as “contraband being controlled substances under Chapter 893 Florida State Statutes including cocaine, cannabis and records and notes of narcotic transactions as well as evidence of the commission of a felony: to-wit: possession and possession with intent to sell or deliver cocaine and/or cannabis.” In effect, this warrant described the property to be seized as “controlled substances,” as in this case. The first district recognized Pezzella, but only quoted Pezzella’s statement that North holds that “when contraband is sought, the courts have been least demanding in their description requirements.”

Whether or not McCrery is in conflict with Pezzella, we agree with McCrery. Since all “controlled substances” are contraband which can be seized if found during an authorized search, we hold that a warrant authorizing the search of a specific vehicle for all “controlled substances” sufficiently describes the property authorized to be seized.

AFFIRMED.

ORFINGER, C. J., and SHARP, J„ concur.


text:
    James CORRETJER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1413.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 1982.
    James B. Gibson, Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Lowery v. State, 418 So.2d 1123 (Fla. 5th DCA, 1982).

ORFINGER, C. J„ and DAUKSCH and SHARP, JJ., concur.


author: PER CURIAM. DAUKSCH, Judge,

text:
    Carolyn W. YAHRLING, Appellant, v. CITY OF ORLANDO, Appellee.
    No. 81-1585.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 1982.
    Joe B. Weeks, Winter Park, for appellant.
    James 0. Driscoll, of Driscoll, Langston & Kane, P. A., Orlando, for appellee.
   PER CURIAM.

AFFIRMED.

COBB and COWART, JJ., concur.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

This is an appeal from a summary judgment in a personal injury case and the undisputed facts are that appellant was driving her car along an unfamiliar street in Orlando and as she rounded a curve her car left the roadway and struck a tree, injuring her. There are issues of fact; one of which is whether the city breached a duty to warn of a dangerous curve. Because issues of fact cannot be resolved by summary judgment, I would reverse the same. Wills v. Sears, Roebuck & Company, 351 So.2d 29 (Fla.1977); Holl v. Talcott, 191 So.2d 40 (Fla.1966).


author: GLICKSTEIN, Judge.

text:
    KANE HOMES, INC., Appellant, v. CITY OF NORTH LAUDERDALE, a municipal corporation, James C. Koeper, Samuel Miller, Carl Fusco, Henry Alexandrowicz, John Hart, William Kelle, and Broward County, Appellees.
    No. 81-1178.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1982.

      Stephen Beyer and Paul J. McDonough of McDonough, Beyer, Phillips & Rogers, P. A., Coral Springs, for appellant.
    Samuel S. Goren of Josias & Goren, Fort Lauderdale for appellees-City of North Lauderdale, James C. Koeper, Samuel Miller, Carl Fusco, Henry Alexandrowicz, John Hart, and William Kelle.
    Harry A. Stewart, Gen. Counsel, and Joseph L. Passiatore, Asst. Gen. Counsel, Fort Lauderdale, for appellee-Broward County.
   GLICKSTEIN, Judge.

This is an appeal by a developer from a final order which denied its petition for writ of mandamus. We affirm.

Appellant acquired slightly over 3.8 acres of real property in North Lauderdale, Bro-ward County, Florida, with the intention of building twenty-nine multi-family units thereon. While it obtained the approval of North Lauderdale’s Planning and Zoning Board, the Development Review Committee, and the City Commission at a public hearing without objections, it made no effort to plat the parcel.

The City received a written opinion from the Broward County Planning Council that in the absence of a plat of the subject parcel no building permits could issue and, accordingly, refused appellant’s application for same. This prompted appellant to file the present action for mandamus against the City, its city council and its then building official; Broward County intervened.

The relevant questions in this case are whether chapter IV, section 5.02, of the county land use plan applies and, if so, whether appellant is required to plat the subject parcel as a condition precedent to issuance of building permits. We hold the section does apply and appellant must plat the parcel to receive its permits.

Broward County has been a charter county since 1975 and section 8.04 of its charter provides that a county ordinance shall prevail over a municipal ordinance in the area of land use planning. In 1977, the county adopted its land use plan by ordinance and chapter IV, section 5.02, thereof provides:

No unit of local government may grant an application for a building permit for the construction of a principal building on a parcel of land unless a plat including the parcel or parcels of land has been approved by the County Commission and recorded in the official records of Bro-ward County subsequent to June 4, 1953. This section will not apply to applications for a building permit for the construction of a building or structure on any single family lot or parcel or on any platted multi-family or non-residential lot or parcel less than five acres in size, provided that the building permit will be in compliance with the applicable land development regulations and that any land within the lot or parcel which is necessary to comply with the Trafficways Plan of the Planning Council has been conveyed to the public by deed or grant of easement.

It should be plain to the reader the first sentence makes the ordinance applicable to North Lauderdale, a unit of local government. Nonetheless, appellant argues the trial court should have ignored section 5.02 because, by certifying the city land use plan in 1979, the Broward County Planning Council removed the county from the picture entirely.

Appellant’s argument misses the mark. Not only does section 5.02 require platting, but it is a minimum condition of the county to which the city must adhere because section 8.04 of the county charter makes section 5.02 superseding authority. This predominance of the county’s land use plan over that of a municipality is consistent with the legislative plan which determined the relationship between the county and the individual cities. Section 2.09 of chapter IV of the county’s land use plan substantiates the cities’ subordinate status. In part it provides:

The Planning Council shall assist units of local government with matters of interpretation of the County Land Use Plan. Whenever a question of interpretation has not been resolved on an informal basis, the governing body of the unit of local government may request in writing that the Planning Council issue a letter of interpretation on the matter.

No doubts should remain about the superiority of the county’s land use plan but, if any do, surely they can be dispelled by section 2.06 of chapter IV. Thereunder a city that grants development permits inconsistent with chapter IV of the land use plan may be required, inter alia, to submit reports to the Planning Council with greater frequency than previously obligated. Thus, the city’s refusal to issue appellant the permits was not in contravention of any clear legal duty it was compelled to perform — a prerequisite to the issuance of a writ of mandamus.

In addition to suggesting that section 5.02 was inapplicable, appellant finds fault with North Lauderdale’s reliance upon the Broward County Planning Council’s written opinion that it was required to plat its parcel. Appellant contends the city was obligated to issue it building permits because its parcel, located somewhere within Tract 10 of Fort Lauderdale Truck Farms, a pre-1953 plat recorded in Plat Book 4, page 31, falls into the exception of section 5.02: “This section will not apply to applications for a building permit for the construction of a building or structure on any single family lot or parcel or on any platted multi-family or non-residential lot or parcel less than five acres in size.” Contrary to this contention, appellant’s parcel is not a platted lot or block; it is merely a piece of acreage, described in metes and bounds, within a larger platted tract. See generally section 177.091, Florida Statutes (1979), which contains the regulations to which a plat made for recording must conform.

To have been considered as platted, it was necessary that appellant’s parcel within the larger platted tract be specifically delineated and identified as a block, lot, or other similar designation, with an assigned number, letter, or other identifying symbol, at the time the plat of the larger tract was recorded. In the present case there is nothing in the record to show appellant’s parcel met any of these requirements. Under these circumstances and those mentioned previously the city properly acceded to the county’s opinion and the trial court correctly denied issuance of the peremptory writ of mandamus. We, therefore, affirm.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.

      . Interestingly, the charter would prevail not only over a city ordinance but also over a state statute as can be inferred from section 177.-071(2), Florida Statutes (1979), which is contained in the land boundaries chapter of the Florida Statutes and regulates the “[a]pproval of plat by governing bodies.” It states: “Any provision in a county charter, or in an ordinance of a county chartered under s. 6(e), Art. VIII of the State Constitution, which provision is inconsistent with anything contained in this section shall prevail in such charter county to the extent of any such inconsistency.”

      . Chapter IV, section 2.06, provides in full:
      Upon a determination by the County Commission that a unit of local government has granted development permits inconsistent with the requirements of this chapter, the County Commission shall take such action as may be necessary and proper to enforce the requirements of this chapter. Such actions may include, but are not limited to, requiring a unit of local government to submit the reports described in Section 2.05 on a more frequent basis for review.

      . See Broward County v. Narco Realty, Inc., 359 So.2d 509 (Fla. 4th DCA 1978), and Broward County v. Coral Ridge Properties, Inc., 408 So.2d 625, 626 (Fla. 4th DCA 1981), wherein this court quoted from State ex rel. Zuckerman-Vernon Corp. v. City of Miramar, 306 So.2d 173, 175 (Fla. 4th DCA 1974), an excerpt discussing mandamus which is applicable to the case at bar:
      Mandamus applies to legal duties of a specific imperative character as distinguished from those that are permissive or discretionary. The distinction between ministerial and judicial duties is that the duty is ministerial when the law prescribes and defines it with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Where the act to be done does involve the exercise of discretion or judgment, it is a judicial or discretionary duty.

      . Section 177.031, Florida Statutes (1979), is the definitional section of the platting part of the land boundaries chapter and the following are subsections that pertain to this discussion:
      (2) “Block” includes “tier” or “group” and means a group of lots existing within well-defined and fixed boundaries, usually being an area surrounded by streets or other physical barriers and having an assigned number, letter, or other name through which it may be identified.

      (11) “Lot” includes tract or parcel and means the least fractional part of subdivided lands having limited fixed boundaries, and an assigned number, letter, or other name through which it may be identified.

      (14) “Plat” means a map or delineated representation of the subdivision of lands, being a complete exact representation of the subdivision and other information in compliance with the requirement of all applicable sections of this chapter and of any local ordinances, and may include the terms “replat,” “amended plat,” or “revised plat.”


author: ANSTEAD, Judge.

text:
    Olen JOHNSON, Appellant/Cross-Appellee, v. Camille Ann JOHNSON, Appellee/Cross-Appellant.
    No. 81-1205.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1982.

      Chesley Y. Morton and Allen M. Levine of Law Office of Chesley V. Morton, Port Lauderdale, for appellant/cross-appellee.
    James Fox Miller of Miller & Schwartz, P. A., Hollywood, for appellee/cross-appel-lant.
   ANSTEAD, Judge.

Appellant Olen Johnson appeals from an order adopting the report and amended report of the general master in a modification proceeding; appellee Camille Ann Johnson cross appeals.

The Johnsons’ twenty-seven year marriage was dissolved by final judgment rendered in 1973. At that time the wife was sixty and husband fifty-two. There were no minor children. Although she was unemployed, it was apparently expected that within a reasonable period of time she would be self-sustaining. Based on these circumstances the trial court awarded her exclusive possession of the marital residence for two years with the husband required to make the mortgage payments, and permanent periodic alimony of $200 monthly to be reduced to $100 at the end of two years.

In 1975, the wife’s petition for modification was granted by a different trial judge extending her right to remain in the house for an additional five years and increasing the amount of alimony to $225 per month. The court found that the wife’s needs had substantially increased and that she had not been rehabilitated due to a deteriorating medical condition which rendered her unable to work, while the husband’s financial circumstances had improved. ~

In 1979 the original trial judge granted the husband’s motion to terminate alimony and partition the realty. However, the wife appealed and this court reinstated the 1975 order and remanded for further proceedings in an opinion which detailed the factual circumstances of the parties. Johnson v. Johnson, 386 So.2d 610 (Fla. 4th DCA 1980).

On remand, the case was referred to a master. Following a trial the master recommended that the husband be required to pay the arrears in alimony and the wife’s attorney’s fees; that the wife’s exclusive possession of the house be extended an additional three years with the husband continuing to pay the mortgage; and that the wife’s application for an increase in alimony be denied. The husband filed objections to the master’s report and sought an order terminating the alimony and partitioning the marital home. After a hearing, the trial court entered an order adopting the master’s recommendations and rejecting the husband’s objections.

On appeal the husband claims that the trial court erred in not terminating alimony and ordering the sale of the marital home. The wife claims she is entitled to greater periodic alimony and attorneys fees, and permanent possession of the marital home. We find no error except as to the trial court’s determination of the amount of alimony to which the wife is entitled.

The history of this case is accurately recited in our prior opinion and does not merit repetition here. Suffice it to say that it has been determined as a matter of fact that the appellee has not been able to rehabilitate herself. That being the case, she is entitled to reasonable support predicated generally upon her needs and the husband’s ability to pay. O’Neal v. O’Neal, 410 So.2d 1369 (Fla. 5th DCA 1982). Given the correctness of the trial court’s conclusion that the wife was unable to rehabilitate herself and is unable to support herself, we believe she is entitled to a greater amount of support than that allocated by the master and approved by the trial court.

In most instances we would also determine the minimum amount of alimony that the wife should receive based upon our review of the record. However, in this case we believe it is more appropriate that the trial court make that determination. We conclude so for several reasons. It appears that one of the reasons the trial court limited the amount of alimony was because the wife was also receiving Veterans Administration benefits. However, the record also reflects that those benefits are reduced by the amount the wife receives from other income, including alimony. If this is the case then the husband’s payments, at least up to the amount of government benefits already being received, are not really adding to the wife’s support. However, the record also reflects her apparent need for more support than she is presently receiving. Her proof in this regard has not been substantially challenged by the husband. There is also evidence that the husband was contemplating retirement and a resulting reduction in income in the near future. We cannot determine with any certainty whether the trial court anticipated this development in resolving the alimony issue. For these reasons, and our natural antipathy toward setting the amount of alimony, we remand this case with directions that further proceedings be conducted in the trial court on the alimony issue and that an order be entered containing specific findings of fact as to the needs of the wife and the husband’s ability to pay and any other factors bearing on the court’s determination of the wife’s entitlement to alimony.

Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent herewith.

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


text:
    Leroy JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1280.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1982.
    Thomas F. Luken, Fort Lauderdale, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

On February 5th, 1981, at about 10:20 p. m., two police officers in an unmarked police unit, while searching for a vehicle involved in an unrelated crime, drove into the rear parking lot of the Melody Bar in Pompano Beach with the unit’s high beam headlights on. They illuminated appellant, who was either sitting down or quitting the left rear seat of a 1973 Buick four-door automobile while handing another man unknown objects. The other man, also having been exposed by the lights, dropped the objects— later these were identified as marijuana cigarettes. The officers exited their unit and observed appellant bending down toward the rear floor of the automobile. Once outside of the automobile, appellant was searched because he was trying to get something out of his right front jacket pocket. The search revealed a brown “nickel bag” of marijuana. Both men were handcuffed and placed in the police unit.

Before leaving the scene the two officers perceived a large blue jacket on the rear passenger side of the floor of the Buick. Clear plastic bags, suspected of containing marijuana, could be seen from outside the automobile protruding from one of the jacket pockets. One of the officers then removed the jacket from the automobile and retrieved ten clear plastic bags (lids) and seven brown envelopes all suspected of containing marijuana. Another brown envelope and a roll of currency consisting of twelve $5.00 bills and a $1.00 bill were also found protruding from under the front passenger seat, directly in front of where the jacket had been located.

On February 20, 1981, the State charged appellant with a misdemeanor; namely, possession of twenty grams or less of marijuana — that found in the right front pocket of the jacket he was wearing and the two cigarettes he was handing to the other man. On April 29, 1981, the State charged appellant with possession of more than twenty grams of marijuana — that found in and near the jacket on the rear floor of the Buick. On June 25, 1981, the county court accepted appellant’s plea of guilty to the misdemeanor charge, withheld adjudication, and ordered him to pay costs of $100.00. On the same day, appellant moved to dismiss the charge pending in the circuit court on the ground that the misdemeanor charge to which he had pled guilty had placed him in jeopardy with respect to the felony. In support of the motion, appellant attached the sworn police report which, together with the probable cause affidavit, represents all the facts the record contains. On July 2, 1981, the trial court denied appellant’s motion and five days later appellant changed his plea to nolo contendere to the felony charge, reserving his right to appeal the question of double jeopardy. The circuit judge withheld adjudication and placed appellant on probation for two years.

The fifth amendment prohibition against double jeopardy is applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Supreme Court has stated an individual is protected against prosecution for an offense of which he has been convicted previously and against multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). In Brown, a defendant in Ohio was charged with and convicted of auto theft and joyriding — a lesser included offense of auto theft. The court held:

Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.

Id. at 169, 97 S.Ct. at 2227, 53 L.Ed.2d at 196 (footnote omitted).

In London v. State, 347 So.2d 639, 640 (Fla. 4th DCA 1977), we held:

In determining whether a plea of double jeopardy can be sustained the test is whether the second prosecution places the defendant twice in jeopardy for the same offense, and not whether he has been tried before upon the same acts, circumstances or situation, the facts of which may sustain a conviction for a separate offense. State v. Bowden, 154 Fla. 511, 18 So.2d 478 (1944). To constitute double jeopardy, it is not enough that the second prosecution arises out of the same facts as the first, but the second prosecution must also be for the same offense. State v. Shaw, 219 So.2d 49 (Fla. 2d DCA 1969). However, when a defendant is placed in jeopardy for a lesser degree of an offense and is thereafter charged with a higher degree of the same offense, he has been placed in double jeopardy and the subsequent prosecution is barred. Southworth v. State, 98 Fla. 1184, 125 So. 345 (1929); State ex rel. Landis v. Lewis, 118 Fla. 910, 160 So. 485 (1935); Greene v. City of Gulfport, 103 So.2d 115 (Fla.1958).

Applying the foregoing principles to the facts of this case, we think the following language in State v. Peavey, 326 So.2d 461, 462-63 (Fla. 2d DCA 1975), cert. denied, 336 So.2d 1184 (Fla.1976), is most appropriate:

To begin with, we would agree that in all events under the facts herein Peavey could have been guilty of only one offense of possession of marijuana on the day and time in question. This is so because, within the contemplation of criminal sanctions, one is deemed at least “constructively” possessed of contraband at a given time and place if he has knowledge of its presence on or about his person or premises and has the present ability exclusively or jointly with another to maintain control over it or reduce it to his physical possession or use; and it matters not, we think, with respect to dispersible contraband of a given kind, such as here, that it may be cached or located in different places on or about his person or on or about his premises. The several such contemporaneous “possessions” constitute but one offense.

(Footnote 1 omitted; emphasis original.)

Appellant here contemporaneously possessed the marijuana on his person and that found in and about the jacket on the rear floor of the Buick where he was seen bending over immediately prior to being ordered to exit the automobile; such contemporaneous possession constituted but one offense. Under these circumstances and for the purpose of double jeopardy, we fail to see how there can be a legal distinction between the produce leaving the peddler’s hand or in his pocket and that still on the push cart. Accordingly, we reverse the circuit court order withholding adjudication of guilt and placing appellant on probation and remand with direction to dismiss the information.

HURLEY and DELL, JJ., concur.

      . The State had been unable to determine ownership of the Buick.

        See Zimmerman v. State (1938), 173 Tenn. 673, 122 S.W.2d 436; Puckett v. Commonwealth (1925), 210 Ky. 768, 276 S.W. 811; Green v. State (1928), 22 Ala.App. 536, 117 So. 607. Also cf. Beaman v. State (1940), 69 Okl.Cr. 455, 104 P.2d 260; People v. Von Latta (1968), 258 Cal.App.2d 329, 65 Cal.Rptr. 651.


text:
    Meredith M. QUIGLEY, a minor child, By and Through her parents and natural guardians, James P. QUIGLEY and Vicki D. Quigley, and James P. Quigley and Vicki D. Quigley, individually, Appellants, v. F. M. S. MANAGEMENT SYSTEMS, INC., a Florida corporation, d/b/a International House of Pancakes, Appellee.
    No. 81-1422.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1982.

      M. Richard Sapir of Nason, Gildan, Yeager & Gerson, P. A., West Palm Beach, for appellants.
    Michael K. Wilensky and Steven R. Ad-amsky of Conroy & Simberg, P. A., Hollywood, for appellee.
   PER CURIAM.

This case involves a personal injury to a minor plaintiff and a derivative claim by the parents of the child. The matter proceeded to a jury trial and the jury apparently did not properly consider the uncontested amount of past and future medical expenses claimed by the parents. The trial court, however, eventually cured any prejudice to the parents by entering a judgment for $1,320 in favor of the parents. This was the entire amount claimed by the parents. There was no other claim in the pleadings, in the court’s instructions to the jury, or even in plaintiffs’ closing argument to the jury. Although we do not approve the rather unorthodox procedures occurring on post trial motions, we conclude that any error was harmless because the parents received judgment for the full amount of their claim. We further conclude that there is no suggestion in the record of any impropriety in regard to the amount of the verdict and judgment entered for the minor plaintiff. We have also considered appellants’ remaining points on appeal and find them to be without merit. The judgment below is, therefore, affirmed.

AFFIRMED.

DOWNEY, BERANEK and GLICK-STEIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Walter Eugene EVANS, Appellee.
    No. 81-1498.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Thomas L. Rolle, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The state appeals the dismissal of a robbery information for lack of prosecution. Under the facts of this case, we believe the trial court abused its discretion in dismissing. Thus, we reverse.

Evans was arraigned for robbery. The trial date was continued once at the defendant’s behest and twice at the state’s. After the third continuance, a trial date of August 6, 1981, was set. The 180 day speedy trial period was due to expire on September 13, 1981.

On August 6th, both the state and the defense announced ready for trial. The state then sought another continuance, claiming unavailability of a witness. The trial judge indicated his doubts that the state was ready for trial and, without a defense motion, dismissed the action for lack of prosecution. The state immediately objected, again stressing its willingness to proceed to trial. The trial court adhered to its earlier ruling, but did grant a motion to extend speedy trial time pending appeal.

In State v. Lowe, 398 So.2d 962 (Fla. 4th DCA 1981), the prosecutor failed to comply with certain discovery orders until the eve of trial. Three weeks remained before speedy trial time expired. The state moved for a continuance. The trial court denied the motion and dismissed the case. On appeal, we noted the wide discretion accorded to trial courts in sanctioning discovery violations. Nonetheless, we reversed, holding that dismissal of criminal charges is “an action of such magnitude that resort to such a sanction should only be had where no viable alternative exists.” 398 So.2d 962, 963. Accord, State v. Hamilton, 387 So.2d 555 (Fla. 2d DCA 1980).

Similarly, in the instant case we are compelled to hold that dismissal was precipitous and unwarranted. The trial court could have forced the state to trial simply by denying the motion for continuance. The state would have had the option to nol-pros or it could have attempted to make its case without the unavailable witness. In any event, dismissal was unwarranted.

The defendant’s reliance on State v. Alvarez, 258 So.2d 24 (Fla. 3d DCA 1972), is misplaced. In Alvarez, the trial court’s dismissal came after more than a year of prosecutorial foot dragging. The instant case is not analogous.

REVERSED and REMANDED.

ANSTEAD, HURLEY and DELL, JJ., concur.


text:
    Deborah Ann OTT, Appellant, v. Willa OTT, Appellee.
    No. 81-1618.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1982.
    Rehearing Denied Sept. 13, 1982.

      Douglas M. Bates of Law Offices of Douglas M. Bates, Boca Raton, for appellant.
    Fred L. Rush of Bernstein, Bernstein, Feinman & Rush, P. A., Fort Lauderdale, for appellee.
   ANSTEAD, Judge.

Appellant Deborah Ann Ott appeals a trial court order which determined that the legal rights to a mortgage and promissory note previously owned by her deceased husband were now vested in the deceased’s children. We affirm.

Appellant is the surviving spouse of the decedent, Richard Ott, and is the personal representative of his estate. She is also the residuary beneficiary under his will. Ap-pellee Willa Ott is the former wife of the testator and the guardian ad litem of his two children. The children are specific dev-isees of the deceased’s bequest of “all my right, title and interest in and to Casa del Tesoro, Inc., a Florida corporation.” However, prior to his death the testator sold the shares of corporate stock which he owned back to the corporation. As payment for the stock he received a mortgage and promissory note which he still held at the time of his death.

Appellant sought a declaratory judgment as to the ownership of the mortgage and note. She claimed that the bequest to the children was no longer effective and that an ademption had occurred due to the sale of the stock in the corporation by the testator prior to his death. The trial court held that under the provisions of Section 732.-606(2)(a) the children were entitled to the mortgage and note.

Section 732.606 reads:

732.606 Nonademption of specific devises in certain cases; sale by guardian of the property; unpaid proceeds of sale, condemnation, or insurance
(1) If specifically devised property is sold by a guardian of the property for the care and maintenance of the ward or if a condemnation award or insurance proceeds are paid to a guardian of the property as a result of condemnation, fire, or casualty, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the condemnation award, or the insurance proceeds. This subsection does not apply if, subsequent to the sale, condemnation, or casualty, it is adjudicated that the disability of the testator has ceased and the testator survives the adjudication by 1 year. The right of the specific devisee under this subsection is reduced by any right he has under subsection (2).
(2) A specific devisee has the right to the remaining specifically devised property and:
(a) Any balance of the purchase price owing from a purchaser to the testator at death because of sale of the property plus any security interest.
(b) Any amount of a condemnation award for the taking of the property unpaid at death.
(c) Any proceeds unpaid at death on fire or casualty insurance on the property-
(d) Property owned by the testator at his death as a result of foreclosure, or obtained instead of foreclosure, of the security for the specifically devised obligation.

Both parties agree that subsection (1) applies only to specifically devised property sold by a guardian of the property. Appellant also contends that the subsections (1) and (2) are interdependent and that subsection (2) applies only to specifically devised property held by a guardian.

Appellee urges us to read the two subsections separately, applying subsection (2) to all testators, not just those who have guardians. Under this reading of the statute, the children, as specific devisees, have the right under subsection (2)(a) to the note and mortgage, which represent the balance of the purchase price for the corporate stock and the security interest therein. Ap-pellee relies on the case of Dobson v. Lawson, 370 So.2d 1238 (Fla. 1st DCA 1978) the relevant facts of which are almost identical to the case before us except for the fact that the stock in Dobson was sold prior to death to the same beneficiary who was to receive the stock under the will. Under these circumstances the First District held that the beneficiary was entitled to have the promissory note held by the testator cancelled since the beneficiary was entitled to the balance due on the note under the provisions of subsection (2)(a). The First District cited a law review article which reasoned that although some confusion had been created by the order of the two sections, a close reading reflected that section (2) applied to all testators, not just those for whom guardians had been appointed. We agree.

In addition to a close reading of the literal wording of the statute, resolution of this issue is aided by an examination of the background of section 732.606, Florida Statutes (1981). This section of the Florida Probate Code is virtually identical in language to section 732.608 of the Uniform Probate Code as originally proposed in Florida. Furthermore, the language of the bill and the order of the subsections, as proposed and as adopted, are essentially the same as that of Section 2-608, the Uniform Probate Code, as approved by the National Conference of Commissioners on Uniform Laws in August, 1969. For that reason, the following comment in 1 The Uniform Probate Code Practice Manual 151 (R. Wellman ed.) is significant:

In 1975, the Joint Editorial Board recommended reordering the title of this section and reversing the original order of the subsections. This recommendation was designed to correct an unintended interpretation of the section to the effect that all the events described in subsections (a) and (b) had relevance only when the testator was under a conservatorship. The original intent of the section, made more apparent by this reordering, was to prevent ademption in all cases involving sale, condemnation, or destruction of specifically devised assets when the testator’s death occurred before the proceeds of the sale, condemnation, or any insurance had been paid to the testator.

If the intention of the legislature in adopting section 732.606 was to follow the lead of the Uniform Probate Code, as we believe it was, then clearly subsection (2) must be construed to refer to all testators, as the trial court correctly ruled.

Accordingly, the judgment of the trial court Is affirmed.

DOWNEY and HERSEY, JJ., concur.

      . H. Fenn and E. Koren, The 1974 Florida Probate Code — A Marriage of Convenience, 27 U.Fla.L.Rev., No. 1 (1974) at 31. Appellant attempts to distinguish Dobson on the basis that the sale in that case was to the specific devisee. However, this factor is not relevant under the statute. Nor is the intent of the testator. In Owen v. Wilson, 399 So.2d 498 (Fla. 5th DCA 1981), the Fifth District observed: “To give effect to Section 732.606, any unpaid proceeds of specific devises are to be paid to the devisee regardless of intent. ... ”

      . For example, subsection (2) refers to sales etc. by the testator, not by the guardian. Subsection (1) also provides that the right of a devisee under (1) shall be reduced by any right he has under subsection (2), a clear indication in our view that subsection (2) contemplates an entirely separate set of circumstances than those contemplated by subsection (1).


author: DOWNEY, Judge.

text:
    Joseph R. PAGNOTTI and Marjorie Pagnotti, his wife, Appellants, v. George J. TARDONIA and Betty L. Tardonia, his wife, Appellees.
    No. 81-2012.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1982.
    Thomas B. Griffith, Boca Raton, for appellants.
    Bruce Zeidel of Cohen & Scherer, P. A., North Palm Beach, for appellees.
   DOWNEY, Judge.

In this plenary appeal from an adverse summary judgment appellants contend the trial judge erred in nearly every judicial act contained in the record. While we find reversible error was committed, many of appellants’ contentions are meritless.

It appears that appellees sold a condominium to appellants and took back a $50,000 second mortgage, which was due in three months. When appellants failed to pay the mortgage this foreclosure suit was commenced. Appellants answered the complaint and filed several affirmative defenses wherein they claimed a partial failure of consideration because (1) appellees refused to deliver possession timely and (2) appel-lees damaged and removed numerous items of property that were to be conveyed as part of the transaction. Appellees moved to strike said affirmative defenses on the ground that they were irrelevant. The motion to strike was granted without any provision regarding leave to amend. Thereafter, appellees moved for and were granted a summary final judgment.

We hold the affirmative defenses were not irrelevant in a suit to foreclose a mortgage and that it was error to strike them, particularly without leave to amend. Since the case must now be returned to the trial court for further pleading by appellants, many of the claimed errors pertaining to the entry of summary judgment are mooted. However, should the matter again be presented on motion by appellee for summary judgment, the matter of attorney’s fees should not be considered by the court on affidavits over objection of appellants and the original note should be presented to the court and become part of the evidence supporting the judgment of foreclosure.

The judgment appealed from is reversed and the cause is remanded with directions to reinstate appellant’s affirmative defenses and for further proceedings.

REVERSED AND REMANDED with directions.

ANSTEAD and BERANEK, JJ., concur.


text:
    Preston BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 82-1668.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1982.
    Preston Brown, Lawtey, pro se.
    No appearance for appellee.
   PER CURIAM.

The trial court denied defendant’s motion for postconviction relief without an eviden-tiary hearing and without appending portions of the record which demonstrate that the prisoner is entitled to no relief. See Rule 3.850(e), Fla.R.Crim.P. We affirm in part and reverse in part.

Two of defendant’s allegations concern matters which preceded and are wholly unrelated to the entry of his plea. These issues are foreclosed by virtue of the defendant’s plea, Robinson v. State, 373 So.2d 898 (Fla.1979), and, therefore, the trial court properly denied relief on these issues.

On the other hand, two of the defendant’s allegations [grounds one and two] concern matters which involve the voluntary nature of his plea. Such allegations are cognizable under Rule 3.850, Fla.R. Crim.P. and, consequently, the trial court must comply with the strictures of the rule. See LeDuc v. State, 415 So.2d 721 (Fla.1982); Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980).

Affirmed in part and reversed in part and remanded with instructions.

LETTS, C. J., and HURLEY and DELL, JJ., concur.


text:
    Larry Lee KENDRICK, Appellant, v. STATE of Florida, Appellee.
    No. 82-669.
    District Court of Appeal of Florida, Second District.
    Aug. 25, 1982.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find that the appellant has failed to demonstrate any reversible error; therefore, the judgment is affirmed. However, the court below failed to make findings of fact supporting retention of jurisdiction a part of the record. In adjudicating the appellant guilty the trial court retained jurisdiction over one third of the appellant’s sentence. Section 947.16(3)(a), Florida Statutes (1981), requires that a trial court state the reasons for retaining jurisdiction over an individual and make the justification part of the court record. The trial judge below must state with particularity the justification for retention of jurisdiction. Sanders v. State, 400 So.2d 1015 (Fla. 2d DCA 1981).

Accordingly, we remand this case to the trial court with instructions to either relinquish the retention of jurisdiction over one third of the appellant’s sentence or to make findings of fact and justification, with individual particularity, to justify the retention of jurisdiction.

HOBSON, A. C. J., and BOARDMAN and DANAHY, JJ., concur.


author: CAMPBELL, Acting Chief Judge.

text:
    Nancy S. ROBINSON, Appellant, v. Richard W. ROBINSON, Appellee.
    Nos. 81-2382, 82-290.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1982.

      John R. Asbell of Asbell, Hains, Doyle & Lewallen, Naples, for appellant.
    John F. Stanley of Vega, Brown, Nichols, Stanley & Martin, P.A., Naples, for appel-lee.
   CAMPBELL, Acting Chief Judge.

Nancy Robinson appeals the final judgment of dissolution entered on November 23, 1981. Richard Robinson cross-appealed the lower court’s award of attorney’s fees to the wife but has abandoned review of that order.

The parties married in 1960, and during their twenty-one year marriage, they had three children. Except for brief periods early in the marriage, Mrs. Robinson did not work; she remained at home to care for the children.

When the parties moved to Naples, Florida, in 1968, the husband began working for an insurance company, and later, having received financial backing from his father-in-law, Mr. Robinson opened his own insurance agency. That insurance agency prospered, and in 1980 Mr. Robinson sold his interest in the business and received a $387,000 note. He also sold his interest in certain other business property and received a $100,000 note. Since he had signed a covenant not to compete when he sold his insurance agency, he could no longer work as an insurance agent, so he took a part-time job with a real estate firm and as a result now receives an undetermined amount of income from commissions.

At dissolution, the assets of the parties consisted of the marital home and the proceeds from the sale of the husband’s business. The trial judge awarded permanent periodic alimony to the wife in the amount of $50 per week, $100 per week per child for child support, and $25,000 in lump sum alimony.

While we recognize that a trial judge possesses enormous discretion in dissolution matters, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), a review of the record compels us to reverse as inadequate the award of alimony in this case. In Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), the court concluded that a wife’s marital contributions as a mother and homemaker should receive recognition comparable to the monetary contributions of the husband. Striking this balance avoids unfairness and prevents the wife from being “short changed.” Brown. An alimony award must be based on need and ability to pay. Although the stated needs of the wife exceed $3000 per month, her alimony and child support payments fall far below this figure. The husband receives at least $7000 per month in principal and interest from the sale of his business and properties. This does not include income from real estate sales commissions.

Absent an explanation by the trial judge for the small amount of alimony awarded the wife in this case, it appears to us on its face to be clearly inadequate in view of the needs of the wife and the substantial assets and income of the husband. Beville v. Beville, 415 So.2d 151 (Fla. 4th DCA 1982).

Accordingly, we reverse the awards of permanent periodic and lump sum alimony and remand for the trial judge to make a more equitable award. We affirm the remaining portions of the final judgment including that fixing child support. Reversed in part, affirmed in part, and remanded.

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


author: OTT, Chief Judge.

text:
    Margaret Rose GROOMS, Appellant, v. Margaret D. HARVEY, Appellee.
    No. 82-181.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1982.
    Richard H. Bailey of Harllee, Porges, Bailey & Durkin, Bradenton, for appellant.
    Douglas A. Wallace, Bradenton, for ap-pellee.
   OTT, Chief Judge.

This is an appeal from a judgment for custody on writ of habeas corpus which ordered surrender of Sherrie Ann Grooms, a minor child of 12 years, by the appellant to appellee. The issue of the best interests and ultimate welfare of the child was never fairly presented or tried. We therefore hold that a new trial on custody is required.

The appellant is the surviving spouse of the natural father of the child. The natural father had custody at the time of his marriage to appellant. This custody continued until his demise in May of 1981. Appellant reared the child from the time she was 14 months old and functioned as her mother continuously up through the day of the hearing on the writ of habeas corpus. Appellant is the only “mother” this 12-year-old child has ever known.

Appellee, the natural mother of the child, divorced Steven Douglas Grooms in March of 1971. She entered into a property settlement and custody agreement which, among other things, gave unconditional custody of the child to the natural father.

Shortly following the natural father’s divorce from the natural mother, he married appellant. The natural father was a worker in heavy construction. From the time of this remarriage, the “family” was constantly on the move and resided in such places as Arizona, Florida, Oklahoma, and South America.

Approximately two years after the natural father’s marriage to appellant, appellee applied to the Oklahoma court for custody of the child. Following an abbreviated hearing in which the natural father made no appearance either in person or by attorney, the court in Oklahoma awarded custody to appellee, the natural mother.

At the hearing below, the Florida trial court attached considerable significance to this ex parte “Oklahoma order” and appears to have felt compelled to accord it full faith and credit. The trial court also seems unduly influenced by the normal presumption afforded a natural parent over a “stranger.”

It is axiomatic under Florida law that the welfare of the child is the question of primary consideration in proceedings regarding custody, and that this is true whether the custody proceeding is by habe-as corpus or some other method. This must be the subject of extensive, careful, and thorough inquiry by the trial court. Furthermore, the best interest and ultimate welfare of the child are paramount over the “rights” of the other parties to the proceeding. Tom v. State ex rel. Tom, 153 So.2d 334 (Fla. 2d DCA 1963).

When the transcript of the proceeding below is examined it becomes apparent that the appellee offered little, if any, evidence other than the copy of the Oklahoma decree and her long-standing, frustrated desire for and right to custody of the child. The Oklahoma decree was obtained approximately seven years ago. No evidence was offered as to the nature and extent of the Oklahoma proceedings. Nothing suggests that the Oklahoma judge was presented with or fully considered the best interests of the child. At most, it appears that ap-pellee was awarded the child by default. Thus, the Oklahoma order improperly overshadowed the trial below and led to a far more abbreviated hearing before the Florida trial court than the “best interests” of the child demand. This question was not vigorously pursued. The ONLY direct and significant evidence bearing on this question was presented by appellant and thoroughly negated the award to appellee.

Accordingly, we feel the most prudent course is to wipe the slate clean and begin anew. Thus we order a new hearing.

During the interim, we feel the status quo should be maintained and that the child should be kept in the jurisdiction of the lower court. The natural mother should be granted reasonable visitation rights pending a full hearing on the real question to be tried.

We REMAND to the lower court for actions consistent with this opinion.

SCHEB and SCHOONOVER, JJ., concur.


author: HURLEY, Judge.

text:
    Bernard H. BUTTS, Appellant, v. STATE of Florida, Appellee.
    No. 81-371.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.

      Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

The defendant/appellant Bernard Butts was convicted of aiding and abetting in a securities fraud scheme. After a careful review of the record, we have determined that the evidence was insufficient to support this conclusion. Accordingly, we reverse.

Defendant Butts and four others were charged in an eighteen count information with violating various provisions of the Florida Securities Act, Section 517.011 et seq., Florida Statutes (1981). The trial court, after a hearing, dismissed counts one through seventeen; only count eighteen remained.

Count eighteen charged five defendants with violating Section 517.301(1), Florida Statutes (1981). This section prohibits fraud, deceit, and misstatements of fact or failure to state material facts, in the sale of securities. Specifically, Mr. Butts was charged with acting in concert and cooperation with the other defendants in selling promissory notes secured by mortgages to certain individuals. The count alleged, broadly, that Mr. Butts and the other defendants engaged in a scheme or artifice, by misstating or failing to state material facts, which acted as a fraud on the purchasers of the promissory notes.

The evidence at trial indicated that Mr. Butts had proposed and helped develop a plan in which SEI, Inc., a mortgage brokerage company, would sell promissory notes to investors. These notes were secured by mortgages on land in the proposed housing development, Interlachen Village Estates (Interlachen). The idea was that the investors would purchase the promissory notes, backed by mortgages on the undeveloped land, from SEI. The capital generated from the sales of these promissory notes would be used to develop the property. As the developed properties were sold, the sale proceeds would be used to pay off the promissory notes and buy back the mortgages issued by SEI.

SEI successfully sold mortgages and promissory notes on all of the lots in Inter-lachen. However, difficulties developed and the land could not be registered with the state for sale to individual purchasers. Consequently, Interlachen had no income with which to buy back the promissory notes and mortgages.

At the conclusion of a non-jury trial, the trial court found that Mr. Butts was guilty as an aider and abettor. However, the trial court noted a conflict in the statutes of limitations governing prosecution of the action and, therefore, dismissed the case, finding that the statute had run. This court reversed, finding that a longer statutory period applied. State v. Butts, 388 So.2d 317 (Fla. 4th DCA 1980). Upon remand, the trial court adjudicated Mr. Butts guilty of aiding and abetting in the fraudulent securities transaction and sentenced him to two years imprisonment. Again, we are compelled to reverse.

We begin by noting that the state never demonstrated that the overall plan to develop and sell Interlachen Village Estates was fraudulent. On the contrary, the proof at trial seemed to indicate that although the project was grossly undercapitalized, nonetheless it was economically feasible. For example, testimony indicated that property could not be mortgaged for more than fifty per cent of its fair market value. Here each of the lots was mortgaged for $2,000. The state’s testimony, however, indicated that the proposed retail price of $4,000, while perhaps optimistically high, was a fair market valuation. Another aspect of the overall sales operation which deserves comment is the fact that mortgages were sold before the land was registered with the appropriate state agency. While this sounds improbable, the state’s testimony indicated that it was an acceptable practice. Indeed, one of the state’s witnesses indicated that it was a state requirement; that testimony was unrebutted.

Our focus then narrows to the actual sale of securities. Did the state prove a fraudulent sale of securities by demonstrating material misrepresentations or omissions? Arguably yes, but the proof totally failed to link the defendant Butts to the misrepresentations or omissions. Testimony revealed that the specific notes and mortgages in question were sold by William Taylor. Taylor was employed as a salesperson by Hartwell and Associates. Hartwell, in turn, was a mortgage broker who was also a director of SEI, Inc., and an officer of Interlachen Village Estates, Inc. The crucial point is that the state failed to prove that Butts was involved in the allegedly fraudulent sales. If anything, the proof was to the contrary. The following colloquy is illustrative.

Q. (By Defense Counsel) But did he [Butts] tell Mr. Hartwell what to say or what representations to make?
A. (By David Edstrom) No, I don’t think so.
Q. Did he ever deal with Mr. Taylor?
A. No.

In short, the state failed to link Butts to any wrongdoing.

To be convicted of aiding and abetting, a defendant must have (1) the intent that the crime be committed and (2) by words or acts, assist or encourage another in the actual commission of the crime. Chaudoin v. State, 362 So.2d 398 (Fla. 2d DCA 1978). Where evidence of guilt is solely circumstantial, the proof must be inconsistent with any reasonable hypothesis of innocence as well as consistent with a hypothesis of guilt. Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972).

Mr. Butts was not an officer or director of Interlachen Village Estates, nor did he have any interest in SEI. It is true that Mr. Butts was a substantial shareholder in Interlachen Village Estates, and bore some responsibility for developing this financing scheme. The evidence at trial, however, clearly demonstrated that Mr. Butts did not sell the promissory notes nor did he direct SEI or its associates in the sale of these securities. Thus, as a matter of law, we conclude that Mr. Butts did not, ‘by words or acts,’ assist in the actual commission of the crime charged. The element of intent also seems attenuated in this case since it was unrefuted that it was the failure of the state to allow the land to be registered which rendered the mortgages unsaleable.

Since we find a fatal deficiency of evidence, we reverse.

ANSTEAD and BERANEK, JJ., concur.

      . A ‘security’ as defined in § 517.021(15), Fla. Stat. (1981).

      . The language of the information suggests a conspiracy charge. But the state consistently asserted that it was charging the defendant as an aider and abettor, not as a coconspirator. To illustrate, the Assistant State Attorney told the court: “[T]here is no conspiracy count. Conspiracy is a totally separate and distinct offense from aiding and abetting. And I know that the defense would love to show that we are alleging a conspiracy here. We are not.” (R 54).


author: LETTS, Chief Judge.

text:
    Jeffrey AHL and Rebecca Ahl, his wife, Appellants, v. RSM DEVELOPERS & ASSOCIATES LIMITED and RSM Developers, Inc., Appellees.
    No. 81-808.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    Arthur M. Wolff of Wolff & Gora, P. A., Fort Lauderdale, for appellants.
    Peter B. Weintraub of Shapiro, Leder, Kimler, Entin & Werksman, Deerfield Beach, for appellees.
   LETTS, Chief Judge.

A contract purchaser who was unable to close on a house sale, seeks a return of his deposit claiming he made a reasonable, albeit unsuccessful effort to carry out the contingency contained in the contract. The trial judge disagreed and ordered a forfeiture. We reverse.

The purchase agreement clearly provided that the buyer had to obtain his mortgage financing from the particular lender from whom the seller/builder had obtained his construction loan. Equally clearly, if the buyer could not obtain the financing from that lender, the seller was to designate another lender or refund the deposit. Pursuant to the agreement, the purchaser obtained a commitment from the seller’s designated lender but that commitment in turn required the buyer to sell the house he already owned before the financing would be available. This last requirement proved to be the buyer’s undoing for he did not sell his already existing home. Accordingly, the deal fell through and he wants his deposit back.

The seller, on the other hand, while admitting to all of the above, claims that the buyer did not make a good faith effort to sell his existing home because he listed it far above its fair market value. The trial judge apparently agreed, concluding in open court as follows:

The Court would note that one of the elements of a situation of this nature, would be that there ought to be a fair market value listing, and whether or not it is in terms to that extent, this court would not presume. But, the facts would indicate that if such facts were presented on the Plaintiff’s case, and that if it were a fair market value offering, by the very definition of that term, the sale would have transpired by this time.
Also, the fact that the parties all understood that the home was going to have to be sold would give certain options and certain risks known to the Plaintiff at the time the Plaintiff undertook that; the risk being, if one didn’t drop the purchase price to where it would have taken, there was a risk of losing the amount of money which was deposited.

We would reaffirm our conclusion in Brown v. Matton, 406 So.2d 1269 (Fla. 4th DCA 1981), to the effect that in a non jury trial the question of whether a purchaser makes a good faith effort to secure the financing is a question of fact to be resolved by the judge. However, we have read the entire transcript of this trial and can find no substantial competent evidence that the buyer listed his existing house for sale far above its fair market value. To the contrary the buyer, himself a real estate broker, testified unequivocally that he had listed it at fair market value and had expended $4,000 in advertising it for sale. His testimony remained totally uncontro-verted.

In the trial judge’s comments first above quoted, even he appears to state at first that he would not presume to pass on whether or not it was listed at fair market value. However, he then goes on to base his conclusion that it was not listed at fair market value by suggesting that it couldn’t have been or the house would have sold. We cannot agree with that. Nor do we agree that a good faith effort to sell the house requires the owner to lower the price to whatever level is necessary to secure a sale.

The only evidence in the record which might support a finding that the house was listed at a price above its market, was the confession by the appellant that he was trying to sell his existing house for 62 per cent more than he paid for it, including renovations, about 18 months before. Yet we note the trier of the fact did not rely on this particular facet of the case for his conclusion. Moreover, we take judicial notice of the fact that buying houses, fixing them up and quickly reselling them for enormous profit is standard modus operandi in the fast moving Florida real estate market.

In sum, we find no substantial competent evidence to refute the buyer’s unequivocal testimony that he made extensive reasonable good faith efforts to sell his existing home at market value. This being so, in the absence of a designation by the seller of an alternative lender within the applicable time span, the buyer is entitled to a return of his deposit.

We find no merit in the other point on appeal concerning entitlement to punitive damages.

This cause is reversed for entry of a final judgment in accordance herewith.

REVERSED.

DOWNEY and HURLEY, JJ., concur.