author: THOMPSON, Judge.

text:
    Jack W. SANDERS, Jr., Appellant, v. Robert G. LUDWIG, Appellee.
    No. AU-311.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1983.
    Rehearing Denied Jan. 5, 1984.

      Robert L. Cowles and James R. Barfield of Cowles, Coker, Myers, Schickel & Pierce, Jacksonville, for appellant.
    Gordon H. Lee; and Neal D. Evans, Jr., Jacksonville, for appellee.
   THOMPSON, Judge.

This is an interlocutory appeal from an order denying Sanders’s motion to quash for lack of jurisdiction over his person. Sanders, a defendant below, contends that under no section of Chapter 48, Florida Statutes has appellee Ludwig, the plaintiff below, obtained personal jurisdiction over him and that the trial judge erred in denying his motion to quash the service of process. We agree and reverse.

Ludwig was injured when a truck in which he was a passenger overturned in Jacksonville, Florida. The truck was owned by Gay Trucking Company, a Georgia corporation, and was driven by Meiser, Gay’s employee. Ludwig initially sued Gay, Gay’s insurer, and Meiser. In a second amended complaint Sanders was also named as a defendant and service on him was sought through Florida’s long-arm statute, Chapter 48, Florida Statutes. Sanders filed a motion to quash the service on him and a supporting affidavit in which he swore, regarding the applicable period, the following: he did not own real property in Florida; he had not conducted business in Florida except as an employee of Gay Trucking Company; he was a resident of Georgia and was not a resident of Florida during that period; he had not accepted the privilege extended by the laws of Florida to nonresidents and others to operate, conduct, engage in or carry on a business or business venture in Florida; he did not have an office or agency in Florida; he had never been the operator or owner of the tractor and trailer involved in the accident out of which the Ludwig suit arose; and he was not a resident of Florida who became a nonresident or concealed his whereabouts.

The lower court denied the motion to quash and Sanders appeals, contending that Ludwig could not obtain personal jurisdiction over him pursuant to §§ 48.-171, .181, or .193, Fla.Stat. Ludwig apparently does not seriously contend that service was properly obtained under §§ 48.181 and .193 but does contend that Sanders was amenable to service of process and a proper predicate was laid in the second amended complaint for service under § 48.171. Section 48.171 provides in part as follows:

Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege ... of operating a motor vehicle or of having it operated, or of permitting any motor vehicle owned, or leased, or controlled by him to be operated with his knowledge, permission, acquiescence or consent, within the state, ... by the acceptance or licensure and by the operation of the motor vehicle, either in person, or by or through his servants, agents, or employees, or by persons with his knowledge, acquiescence and consent within the state constitutes the Secretary of State his agent for the service of process_

(emphasis added)

The uncontroverted affidavit of Sanders reflects that he was not the operator or owner of the vehicle involved in the accident. He was merely an officer of the defendant corporation that owned the tractor-trailer involved in the accident. Although the nonresident corporate owner of the tractor-trailer is subject to jurisdiction and service under the provisions of § 48.171, an individual who is neither the owner nor the operator of the vehicle but who is only a corporate officer of the nonresident corporate owner is not subject to service under § 48.171.

The trial court in its order denying Sanders’s motion to quash also relied on § 48.-193 in addition to § 48.171. However, in view of Sanders’s uncontroverted affidavit that he had not conducted any business in Florida, except as an employee of Gay Trucking Company, and that he had not accepted the privilege extended by the laws of Florida to nonresidents and others to operate, conduct, engage in, or carry on a business or business venture in Florida, Sanders as an individual is not subject to service of process under that section or § 48.181. See Excel Handbag Co., Inc. v. Edison Brothers Stores, Inc., 428 So.2d 348 (Fla. 3d DCA 1983).

The order denying the motion to quash is REVERSED with instructions to enter an order dismissing the second amended complaint as to the defendant Sanders because of lack of personal jurisdiction over him.

ERVIN, C.J., and NIMMONS, J., concur.


source: Caselaw Access Project

author: LEHAN, Judge.

license: Public Domain

text:
    Randolph DUKES, Appellant, v. STATE of Florida, Appellee.
    No. 83-601.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and M. Ann Garrison, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant appeals his conviction for robbery after a trial in which testimony of certain defense witnesses was excluded. We reverse.

At trial one of the state’s witnesses was a former cellmate of defendant who testified that defendant had admitted to him committing the robbery and had given him a description of the crime which occurred in a restaurant restroom. When defendant took the stand, defendant denied the crime and testified that the former cellmate had motivation to lie about defendant’s alleged confession because he and the former cellmate had had a sexual relationship when previously in jail together and, during their most recent incarceration together, defendant had rebuffed the cellmate’s advances and refused to rekindle the relationship. Defendant also testified that the cellmate had had the chance to see some of defendant’s legal papers relating to the robbery case and therefore would have been able to learn from that source rather than from defendant himself the facts of the crime that were supposedly given in defendant’s confession to the cellmate.

Defendant then proffered the testimony of three inmates of the Lee County jail who could testify about the cellmate’s opportunity to see defendant’s legal papers and about scenes they had witnessed between defendant and the cellmate relative to the alleged motivation of the cellmate to lie at trial. The trial court excluded the testimony of the three inmates. Defendant appeals that ruling.

The credibility of a witness may be attacked by showing that the witness is biased. § 90.608(l)(b), Fla.Stat. (1981). As this court stated in Webb v. State, 336 So.2d 416, 418 (Fla.2d DCA 1976), in concluding that the testimony of a defense witness had been wrongfully excluded, “Bias or prejudice of a witness has an important bearing on his credibility, and evidence tending to show such bias is relevant.” The state argues that the proffered testimony was unnecessary because it was cumulative to defendant’s own testimony. However, we do not believe that under the facts of this case defendant, whose credibility as well as that of his former cellmate was a critical issue, should have been prevented from presenting corroborating testimony. See Russo v. State, 418 So.2d 483 (Fla.2d DCA 1982).

The state argues that any error in excluding the testimony was harmless. We do not agree. The evidence of guilt was by no means overwhelming. In addition to attacking the confession testimony, defendant presented an alibi defense which was corroborated by three other witnesses (his mother, sister, and girl friend). Other than the former cellmate and an investigative police officer, the state presented only the testimony of the robbery victim. The victim identified defendant as the robber, having initially identified defendant from police photographs. The victim testified that the robber had grabbed him from behind and that his only view of the robber was as the robber was running away. The victim’s testimony contained contradictions relative to whether he had known defendant’s name before hearing it from a bystander, and he testified that the last time his eyes were checked he was told, “You can’t see too good.” See Webb v. State, supra.

REVERSED AND REMANDED FOR A NEW TRIAL.

BOARDMAN, A.C.J., and SCHEB, J., concur.


author: GRIMES, Judge.

text:
    Willie OLIVER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-761.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1983.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa; for appellee.
   GRIMES, Judge.

This appeal concerns the admissibility of evidence regarding the state’s policy of plea bargaining with a less culpable defendant.

Appellant, Willie Oliver, Jr., was charged with dealing in stolen property. Prior to his trial, the state entered into a plea agreement with Oliver’s codefendant, James Kevin Munn. Pursuant to the plea bargain, Munn pled guilty to the same charge of dealing in stolen property in exchange for the court’s withholding adjudication of guilt and placing him on five years’ probation. As a condition of his probation, Munn was to testify fully and truthfully against Oliver.

In his opening statement, the defense attorney represented Munn’s position as the state’s primary witness:

I respectfully submit to you that the evidence will also show that James Munn also worked on at least one occasion for the Snyders. That Mr. Munn was charged with dealing in stolen property, and I suggest that out of his own testimony he will tell you that he has made a plea agreement with the State whereby if he testified he will get probation.

Cross-examination of Munn concerning the plea bargain occurred in the following manner:

Q So you were not found guilty and even given five years probation. As a condition of that probation were you to come here in court today and testify against Willie Oliver, Jr.?
A I was to testify on Willie’s trial date truthfully and full testimony to my knowledge.
Q Uh-huh. Then, in effect, by testifying against Willie Oliver in this cause, by agreeing to testify against him, you did, in fact, obtain a plea bargain with the State or plea agreement, whereby you received a sentence of probation. Is that correct?
A No, um, there was more or less, you know, not that I would testify, but I testify truthfully, honestly, and whatever. Just, you know, just if I get caught lying they violate me is more or less what they are saying, if I go messing up.
Q If you go messing up.
A Yes. In other words, I’m not supposed to invent a bunch of stuff.
Q But still by testifying you were able to obtain probation for yourself. Is that correct, sir?
A To the best of my knowledge, no. Finally, on recross-examination Oliver’s lawyer again asked:
Q While the State did not tell you what to say, you had effectively already gone to them with the statement that it was Willie Oliver who obtained you to pawn these goods. Is that correct? You had the story and went to the State with it; isn’t that correct?
A On the day I was arrested the officer asked me, he said, “Where did you get it?” And I told him. Therefore, they arrested me, give or take, no matter what I said, they still arrested me.

Following Munn’s testimony, the prosecutor moved to amend her witness list to call Edward Boone, an investigator with the State Attorney’s office. Boone had no prior involvement with Oliver’s case. Boone was to be called to clarify the state’s policy on plea bargaining, explaining that the less guilty codefendant would receive lenient treatment in order to go after the more culpable codefendant. The prosecutor argued that this explanation was necessary because the remarks of Oliver’s attorney had “cast a question on the motive of the State Attorney’s Office” in plea bargaining with Munn. In response, the defense attorney denied accusing the state of a bad faith prosecution. He contended that his cross-examination was directed toward portraying Munn as incriminating someone else in order to attempt to extricate himself. Over objection, the court admitted Boone’s testimony on the basis that a bad faith motive reasonably could have been inferred from defense counsel’s opening statement and cross-examination.

The state relied on the case of Tosh v. State, 424 So.2d 97 (Fla. 1st DCA 1982), to support the admission of the testimony concerning plea bargain policy. In Tosh the defense attorney in his opening statement directly attacked the state’s motive in plea bargaining with two codefendants who were prosecution witnesses. There the attorney inferred that the state had made arrangements with the two real criminals so as to frame his innocent client. On appeal, the court approved the admission of the testimony of the state’s plea bargain policy in order to clarify its purpose for the jury. The court noted, however, that if defense counsel had confined his attack solely to the credibility of the state’s witnesses, introduction of the plea bargain evidence probably would have been reversible error.

For his part, Oliver likens his case to United States v. Hall, 653 F.2d 1002 (5th Cir.1981), where the admission of testimony by a federal narcotics agent describing various drug buying techniques used to catch upper echelon dealers was held reversible error. The testimony had been prompted by the defendant’s efforts to impeach the credibility of three coconspirators who had testified against him by bringing out details of their plea bargains and their potential motivation for lying. The reviewing court found that neither the opening and closing statements of defense counsel nor his cross-examination of government witnesses had placed in issue drug enforcement procedures so as to justify the agent’s explanation. The court ruled that the testimony had improperly suggested to the jury that defendant was a high-ranking drug conspirator.

The proper rule can be simply stated. The defendant is entitled to attack the credibility of an accusing witness by showing that he has entered into a plea bargain. However, if in so doing the defense infers that the state entered into the plea agreement in order to frame the defendant, the state is entitled to present evidence concerning its plea bargain policy.

Here we do not find that defense counsel opened the door to inquiry about the purpose of plea bargaining, nor did he so provoke the state as to require a clarification of its policy. The cross-examination of Munn, the state’s key witness, was totally proper for the purpose of discrediting him by showing bias, prejudice, or interest. Moreno v. State, 418 So.2d 1223 (Fla. 3d DCA 1982); Jones v. State, 385 So.2d 132 (Fla. 4th DCA 1980); Webb v. State, 336 So.2d 416 (Fla. 2d DCA 1976). Following Boone’s explanation that leniency was granted to a less culpable eodefendant, the jury could clearly infer that the state had determined Oliver to be the more culpable codefendant. Such a procedure could only result in an impermissible chilling effect upon Oliver’s constitutional right to confront witnesses. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 13 L.Ed.2d 347 (1974). The introduction of the plea bargain testimony was irrelevant and highly prejudicial.

Accordingly, Oliver’s judgment of guilt and sentence are reversed, and the cause is remanded for a new trial.

BOARDMAN, A.C.J., and RYDER, J., concur.


author: PER CURIAM.

text:
    E.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1412.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1983.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   PER CURIAM.

Because the state’s petition to adjudicate E.P. delinquent was filed 45 days after he was taken into custody, the order adjudicating E.P. delinquent must be reversed. § 39.05(6), Fla.Stat. (1980). Upon remand, the trial court may, within its discretion, determine whether fraud has been committed upon the court by the parties or by counsel and, through its contempt powers, punish accordingly.

Reversed and remanded with directions to vacate the order adjudicating E.P. delinquent.


text:
    Harry EHRLICH, Appellant, v. DADE COUNTY and John Dyer, or his successor as Transportation Coordinator of Dade County, Appellees.
    No. 82-2306.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1983.
    Fine, Jacobson, Block, Klein, Colan & Simon and Gary S. Brooks, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and Stephen P. Lee, Asst. County Atty., for appellees.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   PER CURIAM.

We affirm the denial of a mandatory injunction for the issuance of two taxicab permits, on the ground that the appellant did not establish that the defendant Dade County was legally obliged to grant the certificates in question. Dade County, Fla., Ordinance 75-35, § 14A (1975).


text:
    Morris JAFFE, Irving Kern, Jack Eliscu, Abe Dansky, Egar B. Bergman and Karl Adler, Appellants, v. Adolph SCHWARTZ, Ethel Schwartz, and H.W. Succop, Jr., Appellees.
    No. 82-2618.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1983.
    Smith & Mandler and Patricia M. Silver, Miami Beach, for appellants.
    Samuel I. Burstyn and Michael Ociacov-ski, Miami, for appellees.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Peacock Construction Co. v. Modern Air Conditioning, Inc., 353 So.2d 840 (Fla.1977); Quayside Associates v. Harbor Club Villas Condominium Association, 419 So.2d 678 (Fla. 3d DCA 1982); Manzo v. Patch Publishing Co., 403 So.2d 469 (Fla. 5th DCA 1981).


text:
    James WEST a/k/a Albert Louis Fox, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2647.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1983.
    Bennett H. Brummer, Public Defender, and Linda L. Carroll, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin and Paul Mendelson, Asst. Attys. Gen.; for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Harris v. State, 414 So.2d 242 (Fla. 3d DCA 1982); Melton v. State, 404 So.2d 798 (Fla. 3d DCA 1981).


author: HENDRY, Judge.

text:
    Michael J. MAGUIRE, Appellant, v. AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS, GEORGIA, a subsidiary of American Family Corporation, Appellee.
    No. 83-234.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1983.

      Richard H.W. Maloy, Coral Gables, Mark Krasnow, Miami, Bernard Siegel, Coral Gables, for appellant.
    Carey, Dwyer, Cole, Eckhart, Mason & Spring and Harriet R. Lewis, Miami, for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   HENDRY, Judge.

Michael Maguire, plaintiff below, appeals from a directed verdict entered in favor of appellee insurance company after the presentation of his case in chief. We affirm.

Appellant worked for appellee insurance company in California for seven years. In 1979, appellant decided to move to Florida. He had had a heart attack and wanted his wife to be closer to her family in the event something should happen to him. Appellant made inquiries of management personnel in both California and Florida about the possibility of continuing his employment with appellee after his move. Appellant was told to contact the district manager in Miami after he actually moved to Florida. When appellant met with the district manager, he was given the standard agent’s agreement to sign and was also told that he had to cancel his California license before he could obtain an insurance license from the State of Florida. Appellant can-celled his California license. At that point, appellee refused to sponsor appellant for his Florida license, a requirement in order to obtain the license. As a result of having cancelled his California license, which ap-pellee employer asked him to do, appellant could not service the policies which he had sold in California and from which he was receiving renewal commissions of $500.00 per month. By not being able to service these existing accounts, appellant lost this income. Appellant filed this action for damages, alleging breach of contract and promissory estoppel.

When reviewing an order granting a motion for directed verdict made at the close of a plaintiff’s case, the appellate court must consider the evidence in the light most favorable to the non-moving party to determine whether no evidence exists upon which a jury could lawfully find for the plaintiff. Whitten v. State Farm Fire and Casualty Co., 430 So.2d 528 (Fla. 4th DCA 1983); Kaufman v. A-1 Bus Lines, Inc., 416 So.2d 863 (Fla. 3d DCA 1982); Jones v. City of Hialeah, 368 So.2d 398 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 346 (Fla.1979). Thus, we must consider all of the evidence most favorable to the appellant to see if there is any basis for sending the case to the jury. To do this, we must focus our attention on the employment relationship between the parties.

The analysis in the instant case is straightforward. Without an employment contract specifically obligating both the employer and the employee for a definite term of employment, the employment is considered to be indefinite and terminable at the will of either party. No action may be maintained for breach of the employment contract under these circumstances. DeMarco v. Publix Super Markets, Inc., 384 So.2d 1253 (Fla.1980); Zelder v. Delta Airlines, Inc., 423 So.2d 945 (Fla. 3d DCA 1982); Hamlen v. Fairchild Industries, Inc., 413 So.2d 800 (Fla. 1st DCA 1982). In the instant case, appellant did not have a contract for a specific term of employment. Nor had appellee made any promises to him. All appellant had was an expectation, albeit encouraged by appellee’s actions, that he would be allowed to transfer to appellee’s Florida office. Mere expectations are insufficient to create a binding term of employment. Muller v. Stromberg Carlson Corp., 427 So.2d 266 (Fla. 2d DCA 1983); Roy Jorgensen Associates, Inc. v. Deschenes, 409 So.2d 1188 (Fla. 4th DCA 1982). Therefore, the employment relationship was terminable at will and thus, there was nothing the jury could lawfully find for him.

We recognize that many states have read a “good faith” requirement into the termination at will doctrine or have recognized broad categories of exceptions to the doctrine itself. Cf. McGrath v. Zenith Radio Corp., 651 F.2d 458 (7th Cir.1981) (applying California law); Shaw v. Russell Trucking Lines, Inc., 542 F.Supp. 776 (W.D.Pa.1982); Sherman v. St. Barnabas Hospital, 535 F.Supp. 564 (S.D.N.Y.1982); DeBleecker v. Montgomery County, 292 Md. 498, 438 A.2d 1348 (1982); Martin v. Federal Life Insurance Co., 109 Ill.App.3d 596, 65 Ill. Dec. 143, 440 N.E.2d 998 (1982); Maddaloni v. Western Massachusetts Bus Lines, Inc., 386 Mass. 877, 438 N.E.2d 351 (1982); Pamar v. Americana Hotels, Inc., 652 P.2d 625 (Haw.1982). Florida continues to adhere to the termination at will doctrine. Perri v. Byrd, 436 So.2d 359 (Fla. 1st DCA 1983), and cases cited, supra. Only recently has one exception been recognized: an action will lie for a retaliatory discharge for an employee’s pursuit of a workers’ compensation claim. Smith v. Piezo Technology & Professional Administrators, 427 So.2d 182 (Fla.1983). Thus, in the absence of a clear statement by either the legislature or the supreme court of this state, we must reject appellant’s invitation to either become a “law-giver” and change the current law entirely or to extend the law from its current position. Catania v. Eastern Air Lines, Inc., 381 So.2d 265, 267 (Fla. 3d DCA 1980).

Affirmed.

      . See also Falls v. Lawnwood Medical Center, 427 So.2d 361 (Fla. 4th DCA 1983), wherein the court sanctions the trial courts taking a harder look at the whole employment relationship to see if written personnel policies are a part of an oral contract of employment and, if so, what effect these policies have on the contract (i.e. whether a binding contract of employment may be fashioned out of written personnel policies and oral representations).


text:
    Isadore ROSA, individually, and Rosa Brothers, Inc., a Florida corporation, Appellants, v. Burnett ROTH, Appellee.
    No. 83-617.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1983.

      Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellants.
    Lionel Barnet, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   PER CURIAM.

This is an appeal from a summary final judgment entered in favor of the defendant attorney in a legal malpractice action on the basis that the action was, as a matter of law, barred by the applicable two-year statute of limitations. § 95.11(4)(a), Fla. Stat. (1981). We reverse and remand for further proceedings on the ground that a triable issue of fact was presented on this record as to whether the plaintiff discovered or should have discovered his cause of action against the defendant more than two years prior to the filing of the instant lawsuit. Indeed, a trier of fact could reasonably find on this record that the plaintiff should have discovered and did discover that he had a legal malpractice claim against the defendant no earlier than June 22, 1978, when the circuit court entered a declaratory decree finding that the plaintiff herein was entitled to only 44% interest in the subject property upon exercise of the option in question. Birnholz v. Blake, 399 So.2d 375 (Fla. 3d DCA 1981).

Reversed and remanded.


text:
    James MANN and Betty Mann, Appellants, v. ALLSTATE INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 83-901.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1983.
    Keyfetz, Poses & Halpern and Barry Keyfetz, Miami, for appellants.
    Bedford & Whitelock and Jack White-lock, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   PER CURIAM.

Affirmed. Remsberg v. Mosley, 58 So.2d 432 (Fla.1952); Medina v. Variety Children’s Hospital, 438 So.2d 138 (Fla. 3d DCA 1983); Equitable Life Assurance Society v. Fairbanks, 400 So.2d 550, 553 (Fla. 4th DCA 1981); Swan v. Wisdom, 386 So.2d 574 (Fla. 5th DCA 1980); The 1661 Corporation v. Snyder, 267 So.2d 362, 363 (Fla. 1st DCA 1972).


text:
    Lawrence WATSON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2689.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1983.

      Lawrence Watson, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed. See Hitchcock v. State, 432 So.2d 42 (Fla.1983); Palmes v. State, 425 So.2d 4 (Fla.1983); Raulerson v. State, 420 So.2d 567 (Fla.1982).


text:
    DELIA & WILSON, INC., a Florida corporation and Reliance Insurance Company, a corporation, Appellants, v. ACCO, INC., a Florida corporation, Appellee.
    Nos. 82-1796, 82-2020.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 1983.
    Rehearing Denied Jan. 13, 1984.
    Jeff M. Brown of Lavalle, Wochna, Rutherford & Brown, P.A., Fort Lauderdale, for appellants.
    L. Byrd Booth, Jr., of O’Neal & Booth, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed on the authority of Bergen Brunswig Corp. v. Department of Health & Rehabilitative Services, 415 So.2d 765 (Fla. 1st DCA 1982); Tech Corp. v. Permutit Co., 321 So.2d 562 (Fla. 4th DCA 1975).

BERANEK, HURLEY and DELL, JJ., concur.


author: BERANEK, Judge.

text:
    Jeffrey NEASE a/k/a Michael Colwell a/k/a Louis Poynter, Appellant, v. STATE of Florida, Appellee.
    No. 82-2164.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 1983.
    Rehearing Denied Jan. 18, 1984.

      Stephen J. Finta, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Appellant was charged with and found guilty of trafficking in cocaine and possession of methaqualone. He raises four points on appeal, one of which is disposi-tive. We hold that the trial court erred in denying appellant’s motion to suppress the drugs.

This is an airport drug courier profile seizure. Agents observed appellant at the Delta Airlines ticket counter at the Fort Lauderdale airport. He was carrying with him a garment bag and a small shoulder bag. Appellant paid cash for a one-way ticket from Fort Lauderdale to Cincinnati. Agents testified that he appeared nervous and moved from foot to foot while he was in the ticket line. They approached appellant and after identifying themselves as police officers, they received permission to look at his ticket and his driver’s license. Noting different names on the ticket and license, the agents again identified themselves, this time as narcotics agents, and asked permission to hand search appellant’s luggage. Appellant initially consented and accompanied the agents to a small storage area. As they neared the area, appellant refused to enter. He then turned and ran but was tackled and arrested by two of the agents. While the agents were chasing appellant, another agent went through appellant’s bags and found cocaine. After appellant was arrested, a search of his person revealed six metha-qualone tablets.

The facts as outlined above were simply not sufficient to justify the initial stop. See Florida v. Royer, — U.S. -, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), and Horvitz v. State, 433 So.2d 545 (Fla. 4th DCA 1983). It should be noted that the state in its brief characterizes the initial contact between appellant and the police as a voluntary citizen/police encounter. We agree with this characterization. Being a voluntary encounter, appellant had the right to withdraw any consent which he might have given previously. Lacking probable cause and appellant’s consent, the agents illegally searched the bags. Furthermore, the mere withdrawal of consent did not give the agents probable cause to arrest appellant after tackling him. We do not view appellant’s leaving the scene as an abandonment of his luggage. Obviously, a voluntary citizen/police encounter without probable cause can not be used as a test to see if the supposedly innocent citizen incriminates himself by running away. Realistically, we all know that running from the police indicates guilt or fear warranting further investigation. However, the constitutional requirement of probable cause can not be satisfied by the bootstrapping effect of tackling the apparently innocent person who chooses to sprint instead of politely declining to be searched.

The case is remanded with directions to discharge appellant.

REVERSED AND REMANDED.

DOWNEY and WALDEN, JJ., concur.


text:
    William F. BLANKENSHIP and Reba E. Blankenship, Appellants, v. Lester MYERS d/b/a Myers Construction Company, Appellee.
    No. 82-2634.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 1983.
    John R. Young of Hamilton, James, Mer-kle & Young, West Palm Beach, for appellants.
    Patrick O’Neal of O’Neal & Booth, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed on the authority of Broward County Paraprofessional Association v. School Board of Broward County, 406 So.2d 1252 (Fla. 4th DCA 1981) and McDaniel v. Berhalter, 405 So.2d 1027 (Fla. 4th DCA 1981).

LETTS, HERSEY and HURLEY, JJ., concur.


author: DELL, Judge.

text:
    Lena LI, Appellant, v. Chi Hsi LI, Appellee.
    No. 83-13.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 1983.
    Don Lacy, Fort Lauderdale, for appellant.
    Theodore K. Egner, Fort Lauderdale, for appellee.
   DELL, Judge.

Lena Li appeals from a final judgment dissolving her marriage to Chi Hsi Li.

In 1961, the parties married in Peking, China. They have one minor child. Appellant has resided in New York since the parties separated in 1973. On March 22, 1982, appellee initiated this action through his counsel by filing a petition for dissolution of marriage. Appellant responded by sending a letter to the Clerk of the Circuit Court for Broward County, noting a copy to attorney, in which she advised that she strongly opposed the dissolution of her marriage and requested information concerning what action she should take. Although the record contains an affidavit of non-military service, the record does not show that appellee obtained a default judgment. The record contains no notice setting the cause for trial.

On November 22, 1982, the trial court conducted a final hearing and noted in its final judgment that appellant was neither present nor represented by counsel but that letters written by appellant indicated her awareness of the scheduled final hearing. The final judgment dissolved the marriage of the parties, determined child support and custody of the minor child, and conditionally provided alimony for appellant. Appellant contends she is entitled to a new trial, because she did not receive notice of the final hearing as required by Florida Rule of Civil Procedure 1.440(c). She also challenges the trial court’s adjudication of child support and alimony.

Florida Rule of Civil Procedure 1.440(c) provides:

(c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than thirty days from the service of the notice specified in subdivision (b). By giving the same notice, the court may set an action for trial on its own motion. In law actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with Rule 1.080(a).

The record shows that neither party received notice of trial as required by Florida Rule of Civil Procedure 1.440. By agreement, the parties supplemented the record with the letters referred to in the final judgment. Appellant made no reference to the date of the final hearing and only stated that she could not attend the final hearing because of time and money. In the absence of a showing that appellant had actual notice of the scheduled trial date, we must conclude that the trial court abused its discretion in proceeding forward with the final hearing and entering the final judgment dissolving the parties’ marriage. In view of this conclusion, we need not reach appellant’s other points on appeal.

Accordingly, the final judgment dissolving the marriage of the parties is reversed, and this cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

HURLEY, J., and SIMONS, STUART M., Associate Judge, concur.


text:
    John E. FISHER and Lily May Fisher as Personal Representatives of the Estate of Shaun E. Fisher, Deceased, Appellants, v. SHENANDOAH GENERAL CONSTRUCTION CO. and Dickerson Construction Co., Inc., Appellees.
    No. 83-259.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 1983.
    Richard A. Barnett of Richard A. Barnett, P.A., Hollywood and Kevin A. Malone of Krupnick & Campbell, P.A., Fort Laud-erdale, for appellants.
    Jonathan L. Gaines and E. Bruce Johnson of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   PER CURIAM.

The appeal is sua sponte dismissed. Following entry of the trial court’s order being appealed, which order dismissed appellants’ complaint, a subsequent order was entered which allowed appellants to amend their pleading. The original order, which did not reflect the dismissal to be with prejudice, was thus clarified by the subsequent order upon appellants’ request. As clarified, the original order is non-appealable.

GLICKSTEIN and WALDEN, JJ., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.


author: VOCELLE, L.B., Associate Judge.

text:
    Chester JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1028.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 1983.
    Richard L. Jorandby, Public Defender, and Allen J. deWeese, 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.
   VOCELLE, L.B., Associate Judge.

Appellant was charged with grand theft (felony) of a truck and fleeing a police officer (misdemeanor). The maximum penalty for the crimes are five years and $5,000 for grand theft and one year and $1,000 for fleeing a police officer.

Appellant’s demand for jury trial was denied. The trial judge unequivocally stated it would limit sentence in a non-jury trial to six months and $500 fine and the court was bound to impose no more penalty and thus the crimes are defined as petty under Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970).

This appeal ensues on denial of appellant’s right to jury trial.

We agree and reverse for jury trial.

The standard to be utilized is society’s view of the crime charged as evidenced by the authorized penalty. Bald win v. New York, supra. Absent waiver by a defendant of right of trial by jury of a serious crime a jury trial must be granted upon demand. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The issue is whether a trial judge may lessen the magnitude of the crime in the manner utilized here and limit the right of an accused to jury trial. The answer must certainly be that the trial judge may not so affect the accused’s Sixth Amendment rights.

REVERSED.

LETTS and HURLEY, JJ., concur.


author: LETTS, Judge.

text:
    David GOLSTEIN, Appellant, v. Susan GOLSTEIN, Appellee.
    No. 83-1745.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 1983.
    Richard G. Bartmon of Anthony J. Schre-min, P.A., Miami, for appellant.
    Mary Rudd Robinson of Legal Aid Service of Broward County, Inc., Fort Lauder-dale, for appellee.
   LETTS, Judge.

A stepfather petitioned for custody of his stepson, but the trial court found it had no jurisdiction to consider the petition. We disagree and reverse.

It is true that the wording of Section 61.13(2)(b) of the Florida Statutes (1981), which refers to the “minor children of the parties,” would not appear to envisage or encompass a stepfather absent adoption although the language does not specifically exclude him. However, whenever a minor child resides in this state, a circuit court has inherent jurisdiction to entertain matters pertaining to custody and enter any orders appropriate to that child’s welfare. See Cone v. Cone, 62 So.2d 907 (Fla.1953).

It is also true that the facts of the Cone case reveal involvement'of a natural father, rather than a stepfather, yet the language employed in that opinion is overpowering in declaring that “independent of statute, a court of chancery has inherent jurisdiction to control and protect infants and their property.” Id. at 908.

Furthermore, this very court in Heffernan v. Goldman, 256 So.2d 522 (Fla. 4th DCA 1971), upheld the award of custody of two minor children to a stepmother in preference to the natural mother. The Fifth District has likewise approved a custody award to a stepparent. Gorman v. Gorman, 400 So.2d 75 (Fla. 5th DCA 1981).

We therefore reverse the order of the trial judge and remand for further proceedings.

REVERSED AND REMANDED.

BERANEK and HERSEY, JJ., concur.


text:
    Bruce Lincoln MESSIER, Appellant, v. STATE of Florida, Appellee.
    No. 83-2128.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 1983.
    Bruce Lincoln Messier, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Wessling v. Bennett, 410 F.2d 205 (8th Cir.1969); Thomas v. State, 421 So.2d 160 (Fla.1982); Scott v. State, 423 So.2d 978 (Fla. 1st DCA 1982); and Wedenfeller v. State, 355 So.2d 193 (Fla. 1st DCA 1978).

ANSTEAD, C.J., and LETTS and WALDEN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Francis PAGACH, Appellee.
    No. 83-470.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, and Paul E. Firmani, Asst. Public Defender, Clearwater, for appellee.
   GRIMES, Judge.

The state appeals from an order of the county court suppressing evidence of appel-lee’s refusal to submit to a chemical breath test and declaring unconstitutional a portion of section 316.1932(l)(a), Florida Statutes (1982 Supp.). We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B) and section 26.012(1), Florida Statutes (1981).

On August 3,1982, appellee was arrested for driving while under the influence of alcohol. He refused to submit to a breathalyzer test and subsequently filed a motion in limine to prohibit any testimony relating to his refusal. At the motion hearing, ap-pellee argued that section 316.1932(l)(a), Florida Statutes (1982 Supp.), commonly referred to as the “implied consent law,” was unconstitutional in that it violated the federal and state privilege against self-incrimination. The statute in question provides in pertinent part:

(l)(a) Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state shall, by so operating such vehicle, be deemed to have given his consent to submit to an approved chemical test of his breath for the purpose of determining the alcoholic content of his blood, and to a urine test for the purpose of detecting the presence of controlled substances, if he is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages or controlled substances .... Such person shall be told that his failure to submit to such a breath test or urine test, or both such tests, will result in the suspension of his privilege to operate a motor vehicle for a period of 3 months, for a first refusal, or for a period of 6 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests. The refusal to submit to a chemical breath or urine test upon the request of a law enforcement officer as provided in this section shall be admissible into evidence in any criminal proceeding.

The court granted the motion, although on different grounds, finding that to allow such testimony without advising appellee that his refusal would be introduced against him at trial violated due process. The court struck the last sentence of the statute as unconstitutional.

Initially, we note that at the time this case was before the trial court, a similar provision of a South Dakota statute had been held violative of an accused’s Fifth Amendment privilege by the South Dakota Supreme Court. State v. Neville, 312 N.W.2d 723 (S.D.1981). The United States Supreme Court granted certiorari and on February 22, 1983, reversed the South Dakota ruling. South Dakota v. Neville, 459 U.S. -, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). The Supreme Court held that the values behind the Fifth Amendment are not hindered when the .state offers a suspect the choice of submitting to a blood alcohol test or having his refusal used against him. The Court concluded that “a refusal to take a blood alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.” Id. at-, 103 S.Ct. at 923, 74 L.Ed.2d at 759.

The United States Supreme Court went on to reject the contention that the admission at trial of the accused’s refusal to take the test violated the Due Process Clause. The failure of an officer to warn the accused that his refusal could be used against him is “not the sort of implicit promise to forego use of evidence that would unfairly ‘trick’ respondent if the evidence were later offered against him at trial.” Id. at -, 103 S.Ct. at 924, 74 L.Ed.2d at 760. The Court concluded that the right of refusal was simply a right granted by legislative grace and that the use of evidence of the refusal comported with the fundamental fairness required by due process.

Although appellee argues that article I, section 9, of the Florida Constitution should be construed in a manner to afford more protection - than that of the Fifth Amendment, we are not inclined to do so. Our colleagues in the Fifth District Court of Appeal recently addressed this very issue in State v. Sowers, 442 So.2d 239 (Fla. 5th DCA 1983). In Sowers, the court held that the introduction into evidence of a suspected drunk driver’s refusal to submit to a chemical test is “no more violative of the Florida Constitution than it is violative of the United States Constitution.” At 240.

In interpreting the former implied consent law, section 322.261(l)(a), Florida Statutes (1975), our supreme court held that a defendant merely had a statutory right to refuse to submit to a chemical test for intoxication and could be penalized for exercising that right only by a three-month suspension of his driving privileges. Sambrine v. State, 386 So.2d 546 (Fla.1980). The court concluded by stating that “it is a matter peculiarly within the legislative sphere to establish penalty provisions for noncompliance with substantive law.” Id. at 549. With the revision of the implied consent statute in 1982, the legislature specifically added the new section which provides that refusal to submit to a chemical test is admissible into evidence in any criminal proceeding. The addition of this new penalty was clearly within the legislature’s prerogative.

We note that Kansas has recently followed the lead of the United States Supreme Court in upholding the constitutionality of its implied consent statute. State v. Compton, 233 Kan. 690, 664 P.2d 1370 (1983). Accord Coleman v. State, 658 P.2d 1364 (Alaska Ct.App.1983). Other states had previously interpreted their statutes in a similar manner even without the benefit of South Dakota v. Neville. Hill v. State, 366 So.2d 318 (Ala.1979); Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971); Finley v. Orr, 262 Cal.App.2d 656, 69 Cal.Rptr. 137 (1968); State v. Bock, 80 Idaho 296, 328 P.2d 1065 (1958); State v. Holt, 261 Iowa 1089, 156 N.W.2d 884 (1968); State v. Meints, 189 Neb. 264, 202 N.W.2d 202 (1972); State v. Tabisz, 129 N.J.Super. 80, 322 A.2d 453 (1974); McKay v. Davis, 99 N.M. 29, 653 P.2d 860 (1982); State v. Gardner, 52 Or.App. 663, 629 P.2d 412 (1981); Commonwealth v. Robinson, 229 Pa.Super. 131, 324 A.2d 441 (1974).

Accordingly, we hold section 316.-1932(l)(a), Florida Statutes (1982 Supp.), to be constitutional and remand this cause to the county court for further proceedings consistent with this opinion.

REVERSED.

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


text:
    Charles Leander BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1236.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1983.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. The appellant was convicted of aggravated battery. On appeal he challenges the sufficiency of the evidence to sustain a finding that a deadly weapon was used in the battery in question. We have reviewed the record and conclude that the evidence of the use of “brass knuckles” is sufficient to sustain a finding that a deadly weapon was involved.

ANSTEAD, Acting Chief Associate Judge, and DOWNEY and WALDEN, Associate Judges, concur.


author: COBB, Judge.

text:
    Marcus NEWBERRY, Appellant, v. STATE of Florida, Appellee.
    No. 82-711.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.
    James B. Gibson, Public Defender, and Frederick B. Karl, Jr., Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

The issue presented by this appeal is whether or not the state presented a sufficient case to survive defense motions for judgment of acquittal made at the conclusion of the state’s ease and the entire evidence. The appellant relies upon the argument that the circumstantial evidence against him did not exclude every reasonable hypothesis except guilt, citing Solomon v. State, 115 Fla. 310, 156 So. 401 (1934). This standard was expressed in McArthur v. State, 351 So.2d 972, 976 n. 12 (Fla.1977): “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” It was recently reiterated in Williams v. State, 437 So.2d 133 (Fla.1983), and Jaramillo v. State, 417 So.2d 257 (Fla.1982).

The appellant, Marcus Newberry, was charged with, and ultimately convicted of, dealing in stolen property. The facts adduced by the state at trial revealed that James Aaron, an off-duty detective for the Orange County Sheriffs Office, was en route to a commercial recycling plant on Saturday morning, November 7, 1981, when he observed Newberry and his brother, Daniel, both of whom he knew, loading pieces of corrugated aluminum drainage pipe into an automobile. The pipe had been unearthed and broken into pieces by a construction company, then left on the public right-of-way outside of the fenced construction area. The Newberrys loaded the scrap aluminum into their car and made two trips to the recycling plant, selling the pieces at the plant for $52.80. At the recycling plant, Marcus Newberry told Aaron that a subcontractor had given them permission to take the pipe, and Daniel said that the pipe had come from Kissimmee, Florida.

A representative of the construction company stated that, even though the scrap pipe was piled up near the road outside the fenced construction area, it was going to be taken to the recycling plant the following Monday and sold. The representative also stated that the defendant did not have the company’s permission to take the scrap pipe. The pipe was described by the witness as “bent and dirty and not useable as drainage pipe.” After the conclusion of the state’s case, the defendant, Newberry, took the witness stand on his own behalf and stated that he believed that the pipe had been abandoned.

On appeal, Newberry contends that his motion for judgment of acquittal should have been granted because, based upon the state’s uncontroverted circumstantial evidence, there was a reasonable hypothesis of innocence, i.e., a person of ordinary intelligence and caution would have believed the pipes were abandoned. The state, on the other hand, asserts that the matter was properly submitted to a jury, which made factual findings adverse to the defendant.

In attempting to avoid the circumstantial evidence rule argued by the appellant, the state contends that it did not rely solely on circumstantial evidence to prove its case, since Officer Aaron “observed the defendants stealing the stacked pipe (which was not on the right-of-way),” saw the Newberrys sell the pipe, and heard them lie to him about their authority and the source of the pipe. Thus, says the state, there was “direct evidence of taking, selling, and evasion (guilty knowledge).” Part of the corpus delecti of the crime charged herein is guilty knowledge. Hutton v. State, 332 So.2d 686 (Fla. 1st DCA 1976).

The state’s parenthetical assertion in its brief that the stacked pipe was not on the road right-of-way is contradicted by its own evidence at trial, the testimony of the field superintendent, one Ervin Vancise. The latter testified that the damaged pipe was lying in groupings about thirty feet off the paved roadway, surrounded by sawhorses to protect the open drainage ditch from which the pipe had been removed by a backhoe, and that it was located on the public right-of-way.

Appellant’s argument runs aground, however, in that it requires a finding by the trial court, as a matter of law, that the damaged pipe appeared to be abandoned from the standpoint of a reasonable man. Given the evidence that the pipe was recently excavated, was stacked in groupings beside the road next to the drainage ditch, and was surrounded by sawhorses, coupled with the evidence of the defendant’s guilty knowledge, a question of fact for the jury was presented. An appellate court should not reverse a judgment where there is substantial, competent evidence to support the jury verdict. Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, — U.S. —-, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983).

We do not view Rose as inconsistent with the circumstantial evidence rule recited in Solomon, and later in a number of other Florida Supreme Court cases, including McArthur, Jaramillo and Williams. The difference between Rose and these cases is simply a semantic one: where there is a reasonable hypothesis of innocence based on undisputed circumstantial facts, without resort to weighing issues of credibility, there can be no basis for a verdict of guilt (beyond and to the exclusion of every reasonable doubt) — hence, there would be an absence of substantial (as opposed to merely competent) evidence to submit to a jury. In the instant case, as the Supreme Court found in reviewing the evidentiary facts in Rose, we determine, as did the trial judge, that there was substantial, competent evidence to support a jury verdict of guilt, and that a jury could properly determine that the hypothesis of innocence advanced by the defendant was not reasonable. In a purely circumstantial evidence case, the trial court, of necessity, must initially determine, based on the facts of the case, whether or not the defense theory of innocence is reasonable as a matter of law so as to preclude submission to a jury.

AFFIRMED.

DAUKSCH and SHARP, JJ., concur.

      . See, e.g., Driggers v. State, 164 So.2d 200 (Fla.1964); Davis v. State, 90 So.2d 629 (Fla.1956); Mayo v. State, 71 So.2d 899 (Fla.1954); Head v. State, 62 So.2d 41 (Fla.1952).


text:
    Brian Calvin MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 82-743.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.
    James B. Gibson, Public Defender, Michael S. Becker, Asst. Public Defender, Brian R. Hanson, Certified Legal Intern, and William N. Gambert, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

DISMISSED on authority of Potts v. Wainwright, 413 So.2d 156 (Fla. 4th DCA 1982); Guzman v. State, 364 So.2d 523 (Fla. 2d DCA 1978).

DAUKSCH, COBB and SHARP, JJ., concur.


author: PER CURIAM. COWART, Judge,

text:
    Clifford James GIDDINGS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 82-851.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on authority of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and Taylor v. State, 138 Fla. 762, 190 So. 262 (1939).

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

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

This is another double jeopardy case with an identity of offense problem. The issue is whether a defendant can be tried, convicted and sentenced for burglary with assault (§ 810.02(2)(a), Fla.Stat. (1981)) and for armed robbery (§ 812.13(2)(a), Fla.Stat. (1981)) when both charges are based on interrelated facts.

Giddings entered a dwelling with intent to commit a crime therein and in the course thereof committed an assault on the occupant. As part of the same transaction or criminal episode Giddings also robbed the occupant while carrying a deadly weapon. Convicted and sentenced on both offenses he claims on appeal that because elements of the two crimes overlap and because the constitutional double jeopardy clauses were designed to prevent multiple sentencing (punishment) the sentence for the burglary of a dwelling with assault must be vacated. As authority for his position he cites Bell v. State, 411 So.2d 319 (Fla. 5th DCA 1982); State v. Monroe, 406 So.2d 1115 (Fla.1981); State v. Hegstrom, 401 So.2d 1343 (Fla. 1981), and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

The double jeopardy clauses were designed to prevent a citizen from being twice put in jeopardy of trial, conviction or punishment for “the same offense.” They were not intended to prevent multiple trials, convictions or punishment for multiple offenses which are in substance different either because one statutory offense is substantively different from another or because two charges involving statutory offenses that are substantively the same are based on different factual events. Bell v. State, 437 So.2d 1057 (Fla.1983), reversed Bell v. State, 411 So.2d 319 (Fla. 5th DCA 1982), receded from Monroe and explained that Hegstrom did not hold that double jeopardy permitted a defendant to be convicted of both a greater offense and of a necessarily lesser included offense of the greater offense provided no sentence was imposed for the necessarily lesser included offense. Actually Bell v. State, holds that if two statutory offenses have the exact same essential constituent elements or if one statutory offense includes all the elements of the other, those two offenses are constitutionally “the same offense” and a person cannot be put in jeopardy as to both such offenses unless the two offenses are based on two separate and distinct factual events. It is Borges v. State, 415 So.2d 1265 (Fla.1982), that holds the converse of the principle of law applied in Bell, that is, if two statutory offenses do not have the exact same essential constituent elements and neither statutory offense includes all of the elements of the other, those two offenses are not constitutionally “the same offense” and a person can be put in jeopardy as to both of such offenses even if the two offenses are based on one and the same factual event. Borges holds, further, in essence that if the constitutional double jeopardy clauses permit a trial on and conviction of each of two substantively different offenses, it is the legislative intent of section 775.021(4), Florida Statutes (1977), that a separate sentence be imposed on each of such criminal offenses.

Taylor v. State, 138 Fla. 762, 190 So. 262 (1939), cited by the majority in lieu of an opinion, is a fine old case but its citation should be noted as a major shift in the majority view in similar cases from this court. Although Taylor does not contain a theoretical explanation, its rationale and result is bottomed on the theory of solving double jeopardy identity of offenses problems by a substantive analysis of the two statutory offenses involved and of the factual bases for the criminal charges alleged as violations of the two statutory offenses. Accordingly, the conclusion in that case, and in this case, is consistent with Borges and four earlier cases out of this court (Miles v. State, 418 So.2d 1070 (Fla. 5th DCA 1982); Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 1982); Bartee v. State, 401 So.2d 890 (Fla. 5th DCA 1981); Preston v. State, 397 So.2d 712 (Fla. 5th DCA 1981)), but is inconsistent with the majority opinion in four more recent cases from this court that declined to make a substantive analysis. See Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983); Baker v. State, 431 So.2d 263 (Fla. 5th DCA 1983); Baker v. State, 425 So.2d 36 (Fla. 5th DCA 1982); Bell v. State, 411 So.2d 319 (Fla. 5th DCA 1982), disapproved, 437 So.2d 1057 (Fla. 1983).

Each of the two offenses of which Gid-dings was tried, convicted and sentenced has at least one essential constituent element that the other crime does not have, therefore, under a proper Blockburger type substantive analysis these two offenses can never be “the same offense” and Giddings was properly charged, tried, convicted of both offenses and, as section 775.021(4), Florida Statutes (1981), mandates, sentenced on each offense.

      . The analysis and comparison of the essential constituent elements of criminal offenses, which is the true Blockburger test, is the view in State v. Cantrell, 417 So.2d 260 (Fla.1982); Borges v. State, 415 So.2d 1265 (Fla.1982); the supreme court Bell case (Bell v. State, 437 So.2d 1057 (Fla.1983)); the dissent in Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983); the dissent in Baker v. State, 431 So.2d 263 (Fla. 5th DCA 1983); Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 1982); the dissent in Baker v. State, 425 So.2d 36 (Fla. 5th DCA 1982); the dissent in the DCA Bell case (Bell v. State, 411 So.2d 319 (Fla. 5th DCA 1982)); Bartee v. State,
        401 So.2d 890 (Fla. 5th DCA 1981); Preston v. State, 397 So.2d 712 (Fla. 5th DCA 1981); Ziegler v. State, 385 So.2d 1168 (Fla. 1st DCA 1980), rev. den. 392 So.2d 1381 (Fla.1980).


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

text:
    Diane SMITH, etc., Appellant, v. Robert Gerald MOUGHAN, Appellee.
    No. 82-1641.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.
    W.J. Heffernan, Jr., of Heffernan & Ra-binowitz, P.A., Altamonte Springs, for appellant.
    Gregory M. Wilson of Taylor & Wilson, Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Diane Smith seeks review of an order denying her request to partition property which she and her former husband, appellee Robert Moughan, owned as tenants in common since the dissolution of their marriage in 1977. Prior to trial in this matter, counsel for both parties filed a joint stipulation of facts to simplify and streamline the issues to be heard by the court. After noting that he was familiar with the issues in the case and after hearing argument, the court concluded that appellant was not entitled to partition because she had waived this right by agreement.

At the time of the dissolution, appellee was not represented by counsel. However, he had attended several settlement conferences at the offices of appellant’s attorney. Apparently appellant at that time had no desire to retain any interest in the marital home because it was only at her husband’s insistence that she retained her right to one-half of the net proceeds upon the sale of the house.

No children were born of the marriage and both parties have since remarried. Upon remarriage, appellee continued to reside in the home with his new wife and child. He has made all mortgage payments and has made additional improvements.

The court below ruled that appellant was bound by the property settlement agreement which she executed and which was later incorporated into the final judgment of dissolution. Paragraph three of the agreement provides as follows:

Real Property Owned by the Parties as Tenants by the Entirety. The parties are owners by the entirety of certain real property, described as follows:
Lot 15, Block E, Sun Haven 1st Addition, as recorded in Plat Book X, Page 110, Public Records of Orange County, Florida.
The Husband shall continue to have the right to occupy the home and the Husband shall assume and make all mortgage payments upon the same. The Husband and Wife hereby mutually agree to place the property for sale in the event the Husband decides not to occupy the home, upon terms mutually agreeable to each. The Husband shall make all necessary repairs and keep the property maintained until the property is sold. Upon the sale of the home, the net proceeds shall be divided between the parties equally after deducting the normal expenses of sale.

The fairness of the agreement was not challenged below. As part of the agreement, appellant received certain personal property including the household furnishings. The extent and value of these items are not a part of the record. As a consequence, neither the trial court nor this court has any basis in the record for concluding that appellant was inequitably treated in the dissolution settlement.

We note that appellant could have transferred her entire interest in the home to her husband had she been so inclined. Therefore, it follows that she could, by agreement, transfer something less than her entire interest. Regarding agreements to waive partition, the Florida Supreme Court has specifically held as follows:

[Tjhere is no doubt that the law favors the right to partition. And the general rule is that partition is a matter of right.
But there are exceptions to the rule. The right to partition may be waived, or one may be estopped to enforce the right by an agreement not to partition either express or implied.
* * * ⅜ % *
An agreement never to partition lands or one which unduly or unreasonably restricts partition is generally held to be unenforceable as an unreasonable restraint on the use and enjoyment of property, and therefore contrary to public policy.
* * * * * *
However, under our system of government, our guarantees of right to contract and rights of ownership and use of property, there appears to us to be no valid reason why the owners of undivided interests in property cannot contract not to partition land, except where the prohibition of partition is for an unreasonable and/or indefinite period of time, or is otherwise so unreasonably restrictive as to be contrary to public policy.
We must therefore hold that while partition is a matter of right to those holding undivided interests in lands, such right may be waived or the holder thereof es-topped to assert the right by an express or implied agreement, otherwise enforceable, providing said agreement not to partition be for a reasonable and definite period of time and not otherwise unduly restrictive. An agreement not to partition during the life of any of the tenants does not appear to us to be for an unreasonable time, (emphasis added; citations omitted)

Condrey v. Condrey, 92 So.2d 423, 426 (Fla.1957).

Ordinarily exclusive possession of the marital home is awarded by the court as a facet of support and will terminate upon remarriage of the spouse in possession. See Anderson v. Anderson, 424 So.2d 943 (Fla. 5th DCA 1983); Harvey v. Harvey, 411 So.2d 324 (Fla. 5th DCA 1982); Caldwell v. Caldwell, 400 So.2d 1270 (Fla. 5th DCA 1981). However, there is nothing to prevent a party from agreeing to a particular arrangement as the appellant did here.

AFFIRMED.

DAUKSCH, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I dissent in this case for two reasons. First, the majority opinion leaves intact an interpretation of a property settlement agreement that I think is patently unreasonable and unfair. The trial judge also thought his interpretation was inequitable because he said so:

I hope the District Court reverses me on the grounds that its not equitable, but I don’t think I can do it on those grounds.

Second, the lower court’s interpretation violates the public policy articulated by this court regarding the right of an ex-spouse to petition for partition and sale of a jointly-owned marital residence after the other ex-spouse, who had exclusive possession of the residence, has remarried.

The record in this case is woefully brief. The entire transcript consists of the trial attorneys’ arguments, but no live testimony. Therefore, the trial judge must have based his judgment on the joint stipulation of facts prepared by trial counsel, the property settlement agreement itself, and a few lines from a deposition that were quoted in the stipulation, because the deposition itself was not put into evidence.

The trial court’s construction of the property settlement agreement in this case is not based on conflicting testimony or evidence. It is therefore not entitled to the normal presumption of correctness usually accorded to lower court judgments by appellate courts where the credibility of witnesses is a factor. On the basis of this record, our court is in as good a position to interpret the meaning of the property settlement agreement as was the lower court. See Hoffman v. Condermann, 146 So.2d 776 (Fla. 2d DCA 1962).

The stipulation of facts discloses that the parties married in 1973, and purchased the residence in 1975, taking title to it as tenants by the entireties. They made equal contributions to its purchase and both paid for various improvements (adding a screened room, new carpeting, and a dishwasher), and the mortgage and tax payments. They had no children. The parties separated and divorced in 1977. At that time, the ex-husband insisted that the ex-wife retain her one-half interest in the house. No alimony of any kind was awarded to either party, and neither claimed a special equity in the residence. Both have since remarried. The ex-husband has had exclusive occupancy of the residence since 1977. He has moved a new wife and child into the residence, and he has made additional improvements (dropped ceiling in kitchen and solar system heat recovery iinit).

The issue in this case is the proper interpretation of paragraph 3 of the parties’ property settlement agreement, which was incorporated into their dissolution judgment. Paragraph 3 provides:

The Husband shall continue to have the right to occupy the home and the Husband shall assume and make all mortgage payments upon the same. The Husband and Wife hereby mutually agree to place the property for sale in the event the Husband decides not to occupy the home, upon terms mutually agreeable to each. The Husband shall make all necessary repairs and keep the property maintained until the property is sold. Upon the sale of the home, the net proceeds shall be divided between the parties equally after deducting the normal expenses of sale.

The ex-wife contends that paragraph 3 does not entitle her ex-husband to exclusive possession of the residence indefinitely, and perhaps for his lifetime. She sought to partition the property after he had exclusive possession of the residence for six years following their divorce. He claimed he has exclusive, indefinite rights to occupy the property. The trial court agreed with him, and it denied the wife’s right to partition.

In deciding the meaning of unclear or unspecific contract provisions such as the one involved in this case, a court should select an interpretation that is reasonable and fair to both parties, based on their circumstances and probable intent at the time the contract was formed. James v. Gulf Life Insurance Company, 66 So.2d 62 (Fla.1953). Both of these parties were equal owners and made equal contributions to their investment in the residence. Neither party claimed a special equity or right to alimony from the other. Under normal circumstances, the residence would have been sold and the net proceeds split equally shortly after the dissolution. See Mayberry v. Mayberry, 437 So.2d 785 (Fla. 2d DCA 1983); Hoskin v. Hoskin, 349 So.2d 755 (Fla. 3d DCA 1977).

It is patently unfair and inequitable to bar the ex-wife’s right of partition in this case after a reasonable lapse of time. To interpret the agreement otherwise effectively deprives her of her one-half interest in the property. The property may never be sold during her lifetime, or, if sold years from now, her net share will be reduced by the value of improvements the ex-husband has made without her consent, and her share of the mortgage and tax payments he makes for her, although she will receive no rent or other compensation for tying up her asset. The lower court’s interpretation creates a classic bad deal for the ex-wife, and this should have been avoided. If one interpretation of an agreement is

such as prudent men would naturally execute, while the other makes it inequitable, unusual, or such as reasonable men would not be likely to enter into, the interpretation which makes a rational and probable agreement must be preferred. ... A court will not place an unjust interpretation upon a contract, unless the terms thereof compel it to do so. (Emphasis supplied).

James at 63 (quoting 12 Am.Jur. Contracts § 250).

But nothing in this record compels the conclusion that the parties meant that the ex-husband would maintain exclusive possession of the residence indefinitely. Paragraph 4 of the property settlement agreement makes no sense if a sale in the reasonably near future was not contemplated by the parties at the time they entered into the agreement. In paragraph 4 the ex-husband agreed to pay certain specified joint obligations, and if he failed to do so, the ex-wife was to be reimbursed for any payments she was forced to make from his share of the net sale proceeds. Or, if the property had already been sold, and the proceeds already divided before she was forced by a creditor to pay some or all of the listed joint obligations, she was given the right to seek and secure a personal judgment against him. At the longest, this clause contemplates a sale within the time a creditor could have sued the ex-wife on the joint obligations, i.e., five years. Beyond that time, the sale proceeds would not have been needed to reimburse her for payment made to creditors.

The ex-husband argues that the ex-wife’s excerpt from her deposition clearly establishes she intended he could have exclusive possession of the property without time limits. She testified she understood her ex-husband “could stay in it [the residence] until he chose to sell it. That’s what it meant to me at the time, I guess. I just thought it would go sooner than this." (Emphasis supplied). A fair reading of this statement is that although the ex-wife intended no specific time limit for the sale, she thought it would have taken place by now, seven years later.

The ex-wife’s interpretation of the agreement is much preferable to the ex-husband’s in harmonizing this case with the general law governing the right of joint tenants to partition property. See Hoskin v. Hoskin, 329 So.2d 19 (Fla. 3d DCA 1976). In Hoskin v. Hoskin, 349 So.2d 755 (Fla.App.1977), six months was held to be a reasonable time for exclusive possession, absent minor children or special equities.

Agreements which unduly restrict the right of partition, or do so for an unreasonable period of time, are generally held contrary to public policy and unenforceable. 68 C.J.S. Partition § 44 (1950). If the agreement is silent on the period of time during which exclusive possession rights will bar a joint tenant from his right to partition, there are only two lines of cases. Under one, courts declare the contract void because it is contrary to public policy, which favors the right of partition. Under the other, courts interpret such an agreement as meaning a limited or reasonable time. Annot., 37 A.L.R.3d 962, 980 (1971); 59 Am.Jur.2d Partition § 7 (1971). Therefore, the trial court in this case should have declared the agreement not to partition void and unenforceable because it was indefinite, or it should have clothed the otherwise naked right with a gown of reasonable and discrete length. To do neither was clear error.

An additional reason to avoid the lower court’s interpretation of the agreement is that it requires the ex-wife (the unhoused joint tenant) to provide shelter and sustenance to the ex-husband’s (the in-house joint tenant) new spouse and child. This court has held that an award of exclusive possession of a jointly-owned residence must end upon remarriage of the in-house tenant, whether the dissolution judgment says so or not. Anderson v. Anderson, 424 So.2d 943 (Fla. 5th DCA 1983); Harvey v. Harvey, 411 So.2d 324 (Fla. 5th DCA 1982).

The reasons for this policy were forthrightly articulated in Caldwell v. Caldwell, 400 So.2d 1270 (Fla. 5th DCA 1981). Judge Upchurch said:

The award of exclusive possession of the marital home also contributes to the support of the wife by providing her with rent-free housing. Should the wife remarry and her new husband move into the home with her, appellant would be there contributing to the support of the new husband by providing him with rent-free housing. While we have found no cases on point, we believe the better rule to be that exclusive possession should terminate upon the wife’s remarriage.

Id. at 1272. Surely it is just as galling to an unhoused female joint tenant to be forced to support her ex-spouse’s new wife and child as it was to the unhoused male joint tenant in Caldwell.

The fact that the unhoused spouse still has minor children living in the residence and exclusive possession may be viewed an aspect of child support does not affect this policy. Nor does the fact that the in-house spouse is required to make all of the mortgage or tax payments during the period of exclusive possession. Further, the fact that the exclusive possession right arose out of a property settlement agreement incorporated into a dissolution judgment rather than a judgment apparently makes no difference.

I would reverse.

      . There was no objection by counsel for either party as to the length of time allotted for trial. Appellant does not even suggest in her brief that she did not receive a fair hearing. The only suggestion that there was not a fair hearing is found in the dissent.

      . In her dissent, Judge Sharp observes that denying appellant the right to partition effectively deprives her of her one-half interest in the property because her net share will be reduced by the value of improvements, etc. We do not think the agreement supports that conclusion because the agreement provides only for deducting the normal expenses of sale.

      . Trial counsel requested a half day for trial time, but they were allowed only thirty minutes total. Although neither attorney objected to going forward on this basis, it seems to me these parties were denied their day in court by this proceeding. Non-frivolous suits, such as this one, are entitled to a fair hearing.

        . See Westinghouse Elevator Co. v. DFS Constr. Co., 438 So.2d 125 (Fla. 2d DCA 1983).

      . See Whiting v. Gray, 27 Fla. 482, 8 So. 726 (1891).

      . Paragraph 4 provides:

        Joint Obligations. The Husband and Wife hereby mutually agree that the following represents the joint obligations of the parties which have not been assumed or referred to in connection with any personal or real property hereinbefore mentioned, at the signing of the Agreement:
      Approximate Amount
      Sears (2 accounts) $650.00

      Penneys 300.00
      Wards 350.00
      Iveys 115.00
      Jordan Marsh 200.00
      Burdinés 150.00
      Robinsons 180.00
      Green McDonald 350.00
      AUCO 900.00
      The Husband hereby acknowledges that he assumes and agrees to pay the above-listed obligations as his sole obligation and he hereby releases the Wife from any and obligation to pay the same.
      In the event the Husband, for any reason, fails or refuses to pay any obligation listed above and the creditor seeks payment from the Wife and in the event the Wife is forced to pay any obligation assumed by the Husband to the extent of any payment thereon the Wife ill, if the real estate as stated in Paragraph 3 has not been sold, receive, prior to a division of the proceeds, a reimbursement for the payment of said obligation. In the event the property has been sold the Wife shall be able to seek and secure a Judgment against the Husband for any obligation she is required to lawfully pay.

      . § 95.11, Fla.Stat. (1981).

      . Condrey v. Condrey, 92 So.2d 423 (Fla.1957); 12 FlaJur.2d Co-Tenancy and Partition §§ 40, 43 & 47 (1979).

      . See Jay Vee Realty Corp. v. Jaymar Acres, Inc., 436 So.2d 1053 (Fla. 4th DCA 1983). I do not think that in this case the lifetime of the tenant in common is a "reasonable time” not to partition for the reasons stated above. Condrey involved facts different than this case. A lifetime was a fair and equitable time period there to prevent elderly parents from being ousted by a child from their home in violation of the parties understanding that after putting the home in their joint names, the parents would be supported by the child for the balance of their lives.

      . Harvey v. Harvey, 411 So.2d 324 (Fla. 5th DCA 1982); Lambert v. Lambert, 403 So.2d 484 (Fla. 1st DCA 1981); Caldwell v. Caldwell, 400 So.2d 1270 (Fla. 5th DCA 1981). But see Cain v. Cain, 436 So.2d 367 (Fla. 4th DCA 1983); Farkas v. Farkas, 426 So.2d 1213 (Fla. 4th DCA 1983).

      . Anderson; Harvey.

      . Cannon v. Morris, 407 So.2d 372 (Fla. 1st DCA 1981). But see Farkas (In Farkas, however, the exclusive possession right upheld, unlike this case, was limited to a definite, ascertainable number of years — the minority, inter alia, of the children).


author: COWART, Judge. DAUKSCH, Judge,

text:
    Joanne P. SNIDER and Sue M. Gesaman, Appellants, v. Robert GRODETZ; Leo Kozlowski; Grace Clark and Connie Show, Appellees.
    No. 82-1737.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.
    Robert 0. Marks of Bornstein, Petree, Cooper & Marks, Orlando, for appellants,
    Norman J. Smith of Brinson, Smith, Heller & Smith, P.A., Kissimmee, for appel-lees.
   COWART, Judge.

The issue in this ease is whether a “motor home” recreational vehicle falls within a restrictive covenant prohibiting mobile homes, trailers and trucks from being parked on lots within a subdivision.

Plaintiffs filed a complaint seeking to prohibit defendants from parking a motor home on their lot located in the Buenaven-tura Lakes subdivision. It was alleged that the motor home violated the following restrictive covenant:

No house trailers or mobile homes shall be allowed on any of the said lots. No lot shall be used as a junk yard or auto graveyard. No trucks or house trailers of any kind shall be permitted to be parked in the subdivision for a period of more than four hours, unless the same is present in the actual continuous construction or repair of buildings, trailers shall not be used for living purposes. No trucks shall be parked overnight in areas zoned Residential. The term “trucks” as used in this paragraph shall not include pick-up trucks, van-type trucks or other similar vehicles rated “three-quarter ton” or less when such vehicle is used or owned by a resident of the subdivision, as a regular or usual form of transportation.

At trial defendant Joanne Snider testified that the motor home was used as a recreational vehicle and not as a permanent dwelling. The trial court permanently and perpetually enjoined appellants from parking on their property

any vehicle that is identified, termed or described as a “motor home” or “motor coach,” except as allowed by the subdivision restrictions for up to four hours; and the defendant shall remove the same from said lot within ten days of the date of this order.

It is well established by Florida case law that covenants are strictly construed in favor of the free and unrestricted use of property, but effect will be given to the manifest intention of the parties as shown by the language of the covenant. A covenant which is substantially ambiguous is resolved against the party claiming the right to enforce the restriction. See, e.g., Washingtonian Apartment Hotel Company v. Schneider, 75 So.2d 907 (Fla.1954); Moore v. Stevens, 90 Fla. 879, 106 So. 901 (1925); Orange Gardens Civic Assn. v. Harris, 382 So.2d 1340 (Fla. 5th DCA 1980). In the instant case, the trial court found no substantial ambiguity in the restriction. We agree that the restriction is not ambiguous and reverse the trial court’s injunction and hold that a motor home is not a house trailer, mobile home or a truck.

The mobile home and motor home markets grew out of the house trailer industry. In the 1940’s, especially during the postwar years, many manufactured trailers were sold for use as permanent housing. In the 1950’s the house trailer industry split into two separate components, the mobile home industry concentrating exclusively on the production of permanent housing, and the recreational vehicle industry which manufactured trailers for leisure use. In 1959, an unsuccessful trailer company was taken over by a group of Iowa businessmen who reorganized the company and renamed it Winnebago Industries. This marked the beginning of the motor home industry, an industry that has witnessed spectacular growth over the last twenty years. Although mobile home and motor home production grew out of the house trailer industry, they are now considered separate markets and the terminology relating to these different industries has gradually become more distinct and precise.

A mobile home is commonly defined as a factory built dwelling unit that is transported to a homesite where it is placed on concrete strips or foundations. A mobile home is not self-propelled and is designed for use as a permanent dwelling. By eon-trast a house trailer is considered a recreational vehicle and is designed for more temporary use and to be regularly pulled or towed by an automobile or other self-propelled vehicle. However, there are two main types of recreational vehicles, the ones that are towed, e.g., house trailers, soft top campers, and travel trailers, and the ones that are self-propelled. The motor home falls into the latter category.

By 1973 each of the terms “mobile home” and “motor home” had acquired specific meaning more precise than the mere component words themselves and were in such common use in all regions of the United States that Webster’s New Collegiate Dictionary 738, 752 (1973 ed.) carried both terms as main entries and defined and contrasted them as follows:

mobile home n : a trailer that is used as a permanent dwelling, is usu. connected to utilities, and is designed without a permanent foundation — compare MOTOR HOME
motor home n : an automotive vehicle built on a truck or bus chassis and equipped as a self-contained traveling home — compare MOBILE HOME

The Florida legislature has periodically refined its definitions relating to mobile homes, motor homes, and motor vehicles. Statutes referred to “recreational vehicle-type units” and defined the term “motor home” for the first time in 1972 (s. 1, ch. 72-339). In 1972 the recreational vehicle industry recorded sales of over 2.5 billion dollars for the year. By 1973 the legislature had made it clear that a mobile home was not the same as a motor home. The term “mobile home” according to section 320.01(l)(b), Florida Statutes (Supp.1972), included any type of trailer or vehicle body without independent motive power ... designed either for travel over the highways or for housing accomodations or both.”

Before 1978 the legislature’s definitions were poorly drafted. For example, the term “mobile home” once referred to a variety of vehicles including house trailers and “chassis mounts” (campers which are mounted on the body of a small truck). See, e.g., § 320.01, Fla.Stat. (1971). However, in 1978 the legislature’s definitions were harmonized with generally accepted terminology. In that year section 320.01 was amended and the definition of “mobile home” was restricted to a structure built on an integral chassis designed to be used as a dwelling. § 320.01(2), Fla.Stat. (1981).

The terms “house trailers” and “mobile homes” as contained in the restrictive covenant must be accorded their ordinary, obvious meaning as commonly understood in October of 1973, when the restrictions were imposed. It can safely be stated that by 1973 the term “motor home” was in common use and denoted a self-propelled recreational vehicle. Therefore it cannot be held as a matter of law that the terms “house trailers” and “mobile homes” in these restrictions were commonly understood and intended to include self-propelled recreational vehicles known generically as motor homes.

Since the covenant in question does not refer to motor homes the restriction does not apply to self-propelled recreational vehicles. Appellants therefore did not violate the restrictive covenant by parking their motor home next to their house and the judgment is reversed and the case remanded for further proceedings consistent herewith.

REVERSED.

ORFINGER, C.J., concurs.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

In order for the majority to reach its conclusion, it has restated the issue raised by appellants and has set aside common and ordinary English language usage. For example, the opinion says “mobile home is commonly defined as a factory built dwelling unit that is transported to a homesite where it is placed on concrete strips or foundations.” I agree that is one common definition. But who’s to say a truly mobile home is not also included just because it has its own motor propelling it?

What we have here is a home for use on the road — it is driven about and lived in. It provides all the shelter any home does and gives an added benefit — it is mobile. Thus it is a mobile home.

The definitions given in the majority opinion are stated as if established by universal usage. They are not. I disagree, for example that a house trialer is only “a recreational vehicle that can be pulled by the family automobile.” Some people call a house trailer a mobile home and use the terms interchangeably and synonymously.

What was most obviously meant to be restricted in this neighborhood was the parking of large, and to some, unsightly, second homes on residential lots. I do not know where they came from but all the history lessons about how different types of shelter have evolved since the war, cannot hide what’s clear.

The trial judge was correct in his conclusion and should be affirmed.

      . 19 Encyclopedia Americana 286, 287 (1980 ed.). Also see A. Bernhardt, The Mobile Home Industry (1978).

      . 19 Encyclopedia Americana 286 (1980 ed.).

      . Compare s. 1, ch. 78-221 with s. 1, ch. 70-391.

      . See Moore v. Stevens, 106 So. at 903-04; Baggett v. Boege, 264 So.2d 97 (Fla. 2d DCA 1972).


text:
    STATE of Florida, Appellant, v. Mamie COHEN, Appellee.
    No. 83-418.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellant.
    No appearance for appellee.
   COBB, Judge.

The defendant-appellee, Mamie Cohen, was charged with possession of cocaine. She filed a motion to suppress evidence, including cocaine, found during a search of her trailer, pursuant to a search warrant. The issue at the suppression hearing was whether or not the affidavit for the warrant was sufficient to demonstrate probable cause.

The affidavit in issue, after setting out a description of the place to be searched, states:

On 08-09-82, at 1000 hours, a confidential informant was searched at the Ocala Police Department and had no drugs or money. Informant was given $25 ($10.00 bill Serial # B74930211C, $10.00 bill Serial # F96112392A, $5.00 bill Serial # C19782359B). Informant was driven to Wishful Thinking by affiant and dropped off. Affiant observed informant walk to Mamie Cohen’s trailer, knock on door and then enter. Informant was in the trailer approximately one minute and exited. Informant walked north to Northwest 10th Street, then east approximately 200 feet and affiant received a packet with a white substance, from informant. Informant was returned to Police Department and searched again and had no money or drugs.
Writer performed a field test on the substance with positive results for cocaine. Affiant placed the cocaine into evidence. Affiant believes that sufficient Probable Cause has been demonstrated to indicate that cocaine is present in the above described residence and request the issuance of a Search Warrant.

After a hearing, the court granted the motion, finding:

1. The affidavit for search warrant herein is primarily based on hearsay from an undisclosed confidential informant; and further
2. That the reliability of the undisclosed confidential informant is not adequately demonstrated in the affidavit for search warrant....

The trial court also entered an order granting an oral motion to dismiss by the defense. From these orders, the state has filed a timely appeal.

The trial court’s finding that the affidavit was primarily based on hearsay is incorrect, since the affiant personally supervised the controlled buy of cocaine from the defendant.

In State v. Gieseke, 328 So.2d 16 (Fla.1976), the defendant, charged with possession of marijuana paraphernalia, filed a motion to suppress, alleging the insufficiency of the affidavit of a police officer, upon which the search warrant was based. The defendant claimed that the affidavit failed to include adequate allegations to establish probable cause for the search. The trial court granted the motion to suppress, and the Second District affirmed. The Supreme Court reversed, noting that, when all reference to hearsay testimony is eliminated, “the fact that affiant personally supervised the controlled buy resulting in the purchase of contraband from the described premises was sufficient probable cause to justify the warrant.” 328 So.2d at 17. The court concluded:

(1) The sworn testimony of the police officer was of sufficient quality to satisfy the test of truthfulness and integrity of the witness;
(2) The successful controlled buy was a sufficient demonstration of the probable reliability of the informant’s intelligence information relative to the presence of additional contraband on the premises; and
(3) The controlled buy alone was a sufficient factual premise from which the affiant and the magistrate could conclude that additional contraband remained on the premises.

328 So.2d at 18. See also Crews v. State, 431 So.2d 709 (Fla. 1st DCA 1983) (controlled buy of drugs sufficient to support search warrant); State v. Parker, 407 So.2d 355 (Fla. 2d DCA 1981) (controlled purchase of illegal bet seen sufficient to determine probable cause for search warrant in a bookmaking prosecution).

Geiseke and the cases that have followed it show that the first basis for the trial court’s finding of insufficiency (hearsay) was erroneous. Here, there were clearly sufficient factual allegations made by the officer, based on personal knowledge, to show sufficient probable cause for the issuance of a warrant.

The trial judge’s second finding, that the reliability of the undisclosed informant was not adequately demonstrated, seems based on the “two-pronged test” of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), which required (1) revealing the informant’s “basis of knowledge” and (2) providing sufficient facts to establish either the informant’s “veracity” or the “reliability” of the informant’s report. While the affidavit here does not state a conclusory allegation that the informant was reliable, this is no longer a requirement in the issuance of a warrant, based on Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In Gates, the Supreme Court abandoned the “two-pronged test,” replacing it with a totality of the circumstances analysis. Under this analysis, the court stated:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to insure that the magistrate Had a “substantial basis for concluding that probable cause existed.”

103 S.Ct. at 2332. See also Smigiel v. State, 439 So.2d 239 (Fla. 5th DCA 1983); State v. Jacobs, 437 So.2d 166 (Fla. 5th DCA 1983).

In the instant case, the “totality of the circumstances” before the judge issuing the search warrant constituted sufficient probable cause to support the warrant, particularly in light of the pre-Gates opinion of the Florida Supreme Court in Gieseke. The trial court erred in suppressing the evidence and in dismissing the cause.

REVERSED and REMANDED.

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

      . The affidavit in Gieseke read as follows:
      Affiant’s reasons for this belief are that in his capacity as a Detective of the Clearwater Police Department, he had occasion within the past 10 days to supervise a controlled buy of marijuana wherein a reliable, confidential informant was searched, given $20.00 in U.S. Currency, was observed entering the above described building and after a period of approximately 15 minutes the confidential informant was observed leaving the above described building and returning to the Affiant, who again searched the confidential informant, who had in his possession one baggie containing more than five grams of suspected marijuana.
      328 So.2d at 17.

      . The affidavit in Gieseke did state that the informant was reliable.