author: BARKDULL, Judge.

text:
    Marshall DRAKE and Diana Drake, Appellants, v. David HENSON, Appellee.
    No. 83-1421.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.

      Kaplan & Hodin, Miami, for appellants.
    No appearance for appellee.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   BARKDULL, Judge.

Appellants, plaintiffs in the trial court, seek review of an order of the trial court dismissing the cause with prejudice for lack of subject matter jurisdiction. The action in the trial court sought injunctive relief.

The plaintiff, Marshall Drake, is a licensed drywaller doing business as Drake Drywall. The defendant is a licensed dry-waller doing business as P.D.Q. Drywall Company. They entered into an informal oral partnership agreement to work together and split fees. The partnership continued in a friendly basis for some time, then Drake and Henson got into an argument over money. The disagreement allegedly resulted in Henson threatening the Drakes with injury to both their property and person. The threats continued and the Drakes reported them to the police and the State Attorney, allegedly to no avail. The plaintiffs then filed the instant suit alleging the aforementioned facts and seeking a temporary mutual restraining order without notice, a permanent injunction and other relief. The motion for temporary relief was denied. Henson defaulted. A default was entered and the plaintiffs moved for a final judgment. The cause came on for hearing at which time the trial court, on its own motion, entered the order appealed and dismissed the cause for lack of subject matter jurisdiction. We reverse.

Traditionally an equity court has been the appropriate forum to restrain threatened property damages 22 Fla. Jur.2d, Equity § 31; 27 Am.Jur.2d, Equity §§ 59 et seq. and in some instances, threatened bodily injury. 22 Fla.Jur.2d, Equity § 34; 27 Am.Jur.2d § 65. Even though the threatened acts might result in criminal violations, this should not prevent an equity court from exercising its traditional jurisdiction, particularly when it’s alleged that the law enforcement agencies refused to take cognizance of the alleged threatened criminal action. Syfo Water Co., Inc. v. Chakoff, 182 So.2d 17 (Fla. 3d DCA 1965); Davis v. Florida East Coast Railroad, 166 So.2d 774 (Fla. 2d DCA 1964); 22 Fla. Jur.2d, Equity § 32; 27 Am.Jur.2d, Equity § 57. We also note Op.Att’y Gen.Fla. 073-108 (April 6, 1973) which finds a continuing jurisdiction in the Circuit Court. Finding that the trial court, in the exercise of its equity jurisdiction, had subject matter jurisdiction, we reverse the final order of dismissal with directions to reinstate the matter. This opinion is not to be construed as requiring the trial court to issue the permanent injunction requested, but only that he should proceed with the cause.

Reversed and remanded with directions.

      . Which opinion reads in part as follows:
      "Revised Art. V, Stale Const., which became effective at 11:59 p.m., Eastern Standard Time, on January 1, 1973, abolished the office of justice of the peace.
      In keeping with this action, the 1972 Legislature enacted Ch. 72-358, which became effective on January 2, 1973, and which repealed said § 37.21. However, all of this does not mean that peace bond proceedings are no longer authorized in Florida.
      Section 19 of said revised Art. V says:
      SECTION 19. Judicial officers as conservators of the peace. — All judicial officers in this state shall be conservators of the peace. And § 901.01, F.S., provides in pertinent part that:
      Each state judicial officer including all judges of courts created by home rule charter counties which have five or less justices of the peace, is a conservator of the peace and a committing magistrate with authority to issue warrants of arrest and commit offenders to jail and recognize them to appear to answer the charge. He may require sureties of the peace when the peace has been substantially threatened or disturbed_ (Emphasis supplied.)
      The words "state judicial officer,” as used in said § 901.01, exclude a municipal judge and include a circuit judge and a judge of a county court. That a circuit judge and county court judge are state judicial officers is attested by the fact that their salaries are required to be paid by the state, it being provided by § 14 of said revised Art. V that "[a]ll justices and judges shall be compensated only by state salaries fixed by general law....” (Emphasis supplied.) The result is that peace bond proceedings before judges of county courts, as well as before circuit judges, are authorized by law.
      Sections 923.04 through 923.07, F.S., containing forms for use in peace bond proceedings before justices of the peace, have not been repealed and these forms may serve as guidance in drafting similar papers for use by circuit judges and county court judges.
      Also, although said § 37.21 stands repealed, I think that it would be safe to follow its principles in a current peace bond proceeding.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SUNRISE POINT CONDOMINIUM ASSOCIATION, INC., Appellant, v. BANK OF FLORIDA IN SOUTH FLORIDA, Frank Adubato, Joan Adubato, Sunrise Point, Inc., and Philip J. Scutieri, Jr., et al., Appellees.
    No. 83-2309.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.
    Becker, Poliakoff & Streitfeld and Mark B. Schorr, Fort Lauderdale, for appellant.
    Blank, Rome, Comisky & McCauley and Dawn Adels Fine, Miami, Murphy, Busch-bom & Murphy and Ronald Buschbom, Coral Gables, for appellees.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and ROBERT C. SCOTT, Associate Judge.
   PER CURIAM.

Because the dismissal under review was granted solely because of a pleading deficiency and there was manifestly no abuse of the privilege to amend, we hold that it should not have been effected with prejudice. Upon remand, the order shall instead provide for a dismissal without prejudice.


text:
    Frank J. WISNESKI, Appellant, v. Margaret E. WISNESKI, Appellee.
    No. 83-2343.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.
    Brown & Gostel and Gary S. Gostél, Miami, for appellant.
    Ferdie & Gouz and Ainslee R. Ferdie, Coral Gables, for appellee.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


author: HENDRY, Judge.

text:
    Elvina DURENE, Petitioner, v. Ancel ALCIME, Respondent.
    No. 83-2410.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.

      John R. Greenwood, Miami, for petitioner.
    No appearance for respondent.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   HENDRY, Judge.

Elvina Durene petitions this Court for a writ of certiorari to review a final order of the Circuit Court for the Eleventh Judicial Circuit, Dade County, sitting in its appellate capacity. We have jurisdiction pursuant to Rule 9.030(b)(2)(B), Florida Rules of Appellate Procedure and, for reasons more fully developed below, deny the petition in part and grant it in part.

Petitioner was the plaintiff below in an action to recover a security deposit held by defendant landlord. Petitioner vacated the subject residential, property the first week of September, 1982 and requested in writing the return of a $300 security deposit. October 6, 1982, the petitioner filed suit in Dade County Court for the return of the money. Trial was set for December 7, 1982. On that date, defendant requested and was granted leave to file a counterclaim for actual and punitive damages. Petitioner moved to dismiss the counterclaim and a final order, finding that defendant had forfeited his right to state a cause of action for damages by failing to comply with the requirements of section 83.-49(3)(a), Florida Statutes (1981), was entered dismissing defendant’s counterclaim. Thereafter, the defendant landlord returned the security deposit and appealed the dismissal of the counterclaim to the appellate division of the circuit court. A three judge panel reversed the trial court, finding that the notice requirements of section 83.49(3)(a) pertained only to claims for damages made against the security deposit itself and not to general claims for damages against a former tenant. This petition followed.

We note at the outset that this appears to be a case of first impression. The question before us is whether failure to comply with the notice requirements of section 83.-49(3)(a) bars forever all claims for damages or only bars those claims made against the security deposit. One court in Florida found that failure to give notice within the 15 day statutory period defeated the landlord’s claim against the security deposit and so required the landlord to give back the security deposit money (minus $215 which the plaintiff clearly admitted she owed) and assessed $500 in attorneys’ fees and costs pursuant to the statute. In Re Hasty, 25 B.R. 429 (Bkrtcy.M.D.Fla.1982). However, the landlord’s right, or lack thereof, to proceed against the tenant on a separate cause of action for damages was not an issue in the case.

We agree with the appellate panel that the plain language of the statute, which speaks only of security deposits, cannot be read to state the legislature’s intent to impose, in effect, a 15 day statute of limitation on all claims for damages a landlord may have against a former tenant. No one else is so constrained. See section 95.11, Florida Statutes. We -also agree with the panel’s decision that the purpose of the statute is to assure tenants that their security deposits will be returned expeditiously or they will be promptly notified otherwise. Petitioner’s policy arguments for a contrary reading are well taken but unavailing. The statutory language is clear and unambiguous.

Petitioner's fear that by allowing the landlord to file a counterclaim for damages the tenant will always be left with nothing is unfounded. It ignores the penalties- built into the process. When a tenant files suit for the return of a security deposit, the procedure is simple and straightforward. The case is advanced on the calendar so that it is heard quickly. See section 83.49(3)(c). At that point, all the trial court has to determine is whether the money was held for more than 15 days after the tenant vacated the premises, without any notification by the landlord that he intended to make a claim against the security deposit. If the determination is that the landlord did so hold the deposit for more than 15 days without notifying the tenant of any claims, the statute requires the security deposit money be returned forthwith. The fact that the landlord may have an independent action for damages is immaterial. By his violation of the statute, the landlord has forfeited his access to that particular, readily available fund of money. That is the first penalty. In addition, the landlord is liable for attorneys' fees and costs under section 83.49(3)(c). This is the second penalty. Once the security deposit issue is resolved, the parties proceed to adjudicate the claim for damages. As in any other lawsuit, the landlord must sustain his burden of proof in order to prevail. If he prevails, the landlord must follow the relevant procedures to enforce the judgment, assuming a risk that the former tenant may be judgment-proof. That is the third penalty. The security deposit may not be used for purposes of a set-off. We feel this procedure is sufficiently burdensome to deter landlords from willful violation of the statute.

We deny the petition to the extent that we find the appellate panel’s decision on the counterclaim was correct. We grant the petition for the limited purpose of quashing the appellate panel’s decision on petitioner’s request for attorneys’ fees. Section 83.49(3)(c) clearly states that when a party is obligated to adjudicate his right to the security deposit and prevails, that party is entitled to costs and a reasonable fee for his attorney. Petitioner prevailed below and is entitled to costs and attorneys’ fees from the defendant landlord.

The petition is denied in part and granted in part.

      . Section 83.49(3)(a) states in relevant part: Upon the vacating of the premises for termination of the lease, the landlord shall have 15 days to return said security deposit together with interest or in which to give the tenant written notice by certified mail to the tenant’s last known mailing address of his intention to impose a claim thereon... If the landlord fails to give the required notice within the 15-day period, he forfeits his right to impose a claim upon the security deposit.

      . Petitioner’s second assertion, that landlords will routinely wrongfully withhold security deposits knowing that most people will not file suit to get their deposit back, is a situation which courts are powerless to correct in the absence of a lawsuit. Our result today cannot change that. That problem can only be resolved through consumer education.

      . In Hasty, supra, the court did allow a set-off of $215 [sic] against the security deposit, $60 for admitted damage to ceilings and $165 for a water bill which was the tenant’s responsibility to pay. It is important to note that the landlord claimed damages of more than $1100. In addition to not recovering his damages, the landlord had to return $935 to the tenant plus pay $500 in attorneys' fees. This result should provide a strong incentive to at least one Florida landlord to comply with the statute. We disagree, however, with the court's decision to allow even the $215 as a set-off against the security deposit, whether the damages were admitted or not. The statute clearly states that once the landlord has failed to comply with the notice provisions, he has forfeited his right to impose a claim upon the'security deposit. Thus, that fund of money is no longer available to the landlord or to the court for the payment of damages.


text:
    Tom RIVOLI, Appellant, v. SAHARA MOTEL AND VILLAS, INC. and Union Indemnity Insurance Company of New York, et al., Appellees.
    No. 83-2755.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.
    Horton, Perse & Ginsberg and Edward A. Perse, and Ronald A. Alter, Miami, for appellant.
    Conroy & Simberg and Michael K. Wilen-sky, Hollywood, for appellees.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Fellows v. Citizens Federal Savings & Loan of St. Lucie County, 383 So.2d 1140 (Fla. 4th DCA 1980); Pope v. Cruise Boat Company, 380 So.2d 1151 (Fla. 3d DCA 1980).


author: LESTER, M. IGNATIUS, Associate Judge.

text:
    B.R. FRIES & ASSOCIATES, INC., Appellant, v. Filomena MEAGHER and John P. Meagher, Appellees.
    No. 83-2868.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.
    Steven R. Berger and Sara Lawrence, George, Hartz, Burt & Lundeen, Miami, for appellant.
    Schwartz, Klein, Steinhardt, Weiss & Weinstein and Bruce A. Blitman and Alan D. Sackrin, North Miami Beach, for appel-lees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON, J., and LESTER, M. IGNATIUS, Associate Judge.
   LESTER, M. IGNATIUS, Associate Judge.

The sole issue here is whether the trial court judge grossly abused his discretion when he denied defendant’s motion to set aside a default entered against it on February 10, 1983. Summons and Complaint were served upon the defendant’s resident agent on December 17, 1982, and suit papers were delivered to defendant’s personal attorney on December 27, 1982, at which time said papers were misplaced and no responsive pleadings were filed. Default was entered on February 10, 1983. Motion to Vacate was not filed until May 17, 1983. Between the date of the filing of the default and the filing of the Motion to Vacate there is a conflict of a factual situation inasmuch as on April 1, 1983, plaintiffs’ attorney sent the Claims Adjuster for the defendant’s insurer a letter containing a copy of the Motion and Order for Default and requested the adjuster to contact him with regard to settlement. The plaintiff complained that the adjuster did not forward the investigative file to defense counsel for several weeks, alleging that such neglect was not excusable. On the other hand, the defense argued that the plaintiffs’ counsel represented to him that the matter could be amicably settled without further litigation.

On October 25, 1983, a hearing was held on the defendant’s Motion to Set Aside Default, and on November 3, 1983, the trial court entered an order denying defendant’s motion and ruled that the defendant’s agents were not misled and that there had been no excusable neglect demonstrated on the part of the defendant, and that defendant was guilty of not timely moving to set aside the default. The facts of each case are very important in determining whether to set aside a default.

After review of the record, we cannot say that the trial court abused its discretion.

Discretion is reposed in the trial judge by Florida rule. Florida Rule of Civil Procedure 1.540 is of the broadest scope and, in order to reverse the judge’s ruling thereunder, there must be a showing of gross abuse of discretion.

In addition, it is the duty of the trial court, not the appellate courts to make the determination of whether or not the facts constitute excusable neglect, mistake, or inadvertence sufficient to excuse compliance with the rules. Farish v. Lum’s Inc., 267 So.2d 325 (Fla.1972).

Schwab & Co., v. Breezy Bay, Inc., 360 So.2d 117, 118 (Fla.3d DCA 1978).

We conclude there has been no gross abuse of discretion on the part of the trial court in denying defendant’s Motion to Set Aside Default. See Schwab & Co.

Affirmed.


author: DOWNEY, Judge.

text:
    WEST PALM BEACH ASSOCIATION OF FIREFIGHTERS, LOCAL UNION 727, Walter L. Byrd, Robin Herring, David Heyer, Dennis J. Wirthington, and Dennis L. Grimes, Appellants, v. BOARD OF CITY COMMISSIONERS OF the CITY OF WEST PALM BEACH, Appellee.
    No. 82-2129.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.

      Joseph C. Segor and Joseph H. Kaplan, Gerald A. Rosenthal and Steven Bloom of Kaplan, Sicking, Hessen, Sugarman, Ro-senthal & DeCastro, Miami, for appellants.
    Carl V.M. Coffin, City Atty., West Palm Beach, Lee E. Miller and Peter J. Hurtgen, Sp. Counsel for City of West Palm Beach, of Seyfarth, Shaw, Fairweather & Gerald-son, Tallahassee, for appellee.
   DOWNEY, Judge.

Appellants, the West Palm Beach Association of Firefighters, and a group of taxpayers, seek reversal of a final judgment holding that a proposed initiative ordinance was unconstitutional and denying appellants’ petition for writ of mandamus. The judgment was entered upon the petition, response, and appellants’ reply to the response. Appellants concede there is no factual dispute involved.

Appellants prepared and circulated an initiative petition, requesting that an ordinance be placed on the ballot for consideration by the electors of the city. The city refused to submit the proposed ordinance to a referendum on the grounds that the ordinance was unconstitutional in its entirety. Appellants thereupon filed this action seeking a writ of mandamus; from the adverse judgment they have perfected this appeal.

Appellants’ first point is that the city did not have the authority to refuse to place the ordinance on the ballot on the ground of alleged unconstitutionality. It is argued that the city must either adopt the ordinance as proposed or submit it to the electorate; the city can not itself-pass on its validity. It is conceded by the city that it can not make the final determination as to constitutionality, but the city contends it can refuse to submit the matter to referendum and let the court decide the constitutional question. Why, then, the city did not seek declaratory relief from the circuit court to resolve the issue we are not aware. However, we suggest that under the circumstances that would have been the preferred procedure. Dade County v. Dade County League of Municipalities, 104 So.2d 512 (Fla.1958); City of Ft. Pierce v. McCarty, 422 So.2d 1094 (Fla. 4th DCA 1982).

Be that as it may, appellants instituted a suit for mandamus to force the city to submit the matter to the people. As a result, the pleadings presented to the court, among other things, the constitutionality of the proposed ordinance. It appears that when an initiative petition is presented requesting the presentation of a proposed ordinance to the electorate and the governmental agency in good faith questions the constitutionality of the ordinance in its entirety and on its face the court may properly consider that question in advance of an election concerning its approval. Dade County v. Dade County League of Municipalities, supra. The rationale of that rule is that this type of question (as opposed to a political question) may be determined in advance of the election in order to preclude or forestall the possible expenditure of funds in a useless act should the ordinance ultimately be held unconstitutional. Dade County, supra. On the other hand, a proposal that is unconstitutional only in part or is invalid on nonconstitutional grounds is not cognizable by the court prior to a proposed election. Rivergate Restaurant Corp. v. Metro Dade Cty., 369 So.2d 679 (Fla. 3d DCA 1979).

Thus, in the present case it was appropriate for the court to entertain and decide the constitutional question because the city contended the ordinance was unconstitutional in its entirety.

Next, appellant suggests that the proposed ordinance in this case is not expressly prohibited by the constitution, nor is the subject expressly preempted to the State by the constitution or general law.

Regarding the preemption argument, there are cases saying that the legislature has preempted to the state via Chapter 447, Florida Statutes (1981), the subject of public employee bargaining. See: Maxwell v. School Board of Broward County, 330 So.2d 177 (Fla. 4th DCA 1976); Public Employees Relations Com’n. v. City of Naples, 327 So.2d 41 (Fla. 2d DCA 1976); City of Panama City v. Florida Public Emp., etc. Commission, 364 So.2d 109 (Fla. 1st DCA 1978). However, our reading of Chapter 447 leaves us with some degree of apprehension about the validity of those opinions because we fail to find in Chapter 447 the express preemption (as opposed to preemption by implication) required by Section 166.021(3)(e), Florida Statutes (1981). Nevertheless, we leave a full treatment of that question for another day because we hold that the proposed ordinance is unconstitutional in its entirety and on its face because it conflicts with the general law contained in Chapter 447. The impasse proceedings provided for in Section 447.-403(3), et seq. are nullified by the ordinance, since the reason for their existence is disposed of. For example, the written notice required by Section 447.403(3), the discussions between parties, the recommendation for settling by the Chief Executive Officer, the public hearing before the legislative body, and the legislative body’s action, taken in the public interest are all obviated by the ordinance. Furthermore, Section 447.203(14), which provides that “neither party shall be compelled to agree to a proposal or required to make a concession unless otherwise provided in this part” is likewise nullified by the ordinance. On the subject of conflict between municipal ordinances and state general law, the Third District Court of Appeal, in City of Miami Beach v. Rocio Corp., 404 So.2d 1066 (Fla. 3d DCA 1981), stated:

One impediment to constitutionally derived legislative powers of municipalities occurs when the municipality enacts ordinances which conflict with state law.
404 So.2d at 1069.

In Rodo the City suggested that the foregoing rule of law had changed by passage of the Home Rule Powers Act, Chapter 166, Florida Statutes (1973). The court, however, disposed of that contention by pointing out:

The principle that a municipal ordinance is inferior to state law remains undisturbed. Although legislation may be concurrent, enacted by both state and local governments in areas not preempted by the state, concurrent legislation by municipalities may not conflict with state law. If conflict arises, state law prevails.
404 So.2d 1070.

Accord: Edwards v. State, 422 So.2d 84 (Fla. 2d DCA 1982).

Article VIII, § 2(b), Florida Constitution, provides that municipalities “may exercise any power for municipal purposes unless otherwise provided by law.” Thus a municipality may not properly exercise its legislative power by enacting an ordinance that conflicts with an existing state statute. Because the ordinance in question conflicts with provisions of Chapter 447, Florida Statutes, it violates Article VIII, § 2(b), and is invalid.

Accordingly, the judgment of the trial court holding the proposed ordinance unconstitutional and denying the petition for writ of mandamus is affirmed.

AFFIRMED.

LETTS and DELL, JJ., concur.

      . The proposed ordinance provides:
      "In any contract involving terms or conditions of employment, between the City of West Palm Beach and its firefighter employees acting through its employee organization, where unresolved issues are submitted to a special master pursuant to Florida Statutes chapter 447.403 and 447.405, it shall be deemed to be in the public interest including the interest of the employees involved for the commission of the City of West Palm Beach to accept the recommended decision of the Special Master, and such recommended decision shall be accepted unless there was not competent substantial evidence to support that recommended decision, provided; however, if the Firefighter employees strike in violation of state law to coerce acceptance of the recommended decision, this provision shall not be applicable. In the event there is any disagreement concerning this provision, the matter shall be resolved by application of either party to the Circuit Court of the Fifteenth Judicial Circuit in and for the State of Florida.”


author: PER CURIAM. HURLEY, Judge,

text:
    Micah HARDY, a minor, by and through his parent, natural guardian and next friend, Leonard HARDY, and Leonard Hardy, individually, Appellants, v. SANYEI HONG KONG, LTD., and Kwong Ming Plastic Factory, Appellees.
    No. 83-289.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.

      R. Fred Lewis of Magill, Reid, Kuvin & Lewis, Miami, for appellants.
    Charles H. Damsel, Jr., and Marjorie Ga-darian Graham of Jones & Foster, P.A., West Palm Beach, for appellee-Sanyei Hong Kong, Ltd.
   PER CURIAM.

This case involves an appeal from a non-final order quashing service of process and dismissing appellant’s claim against appel-lee Sanyei Hong Kong, Ltd., a Hong Kong corporation.

Appellant Micah Hardy, a minor, was injured by a toy gun manufactured by Kwong Ming Plastic Factory. The gun had been purchased in Florida from Eagle Family Discount Stores, Inc. Eagle had obtained a large number of such toys through Sanyei in Hong Kong. In prior litigation Hardy sued Eagle for damages and obtained a substantial settlement. In this litigation Hardy has sued Sanyei and Kwong Ming in tort for the same injuries arising out of the child’s use of the toy gun. Sanyei was served under the long arm statute and moved to quash service of process and to dismiss for lack of jurisdiction. The trial court considered the matter upon affidavits, depositions, and other evidence and concluded that Sanyei did not have sufficient minimum contacts to bring it within the purview of the long arm statute. We believe the trial court was correct in so ruling.

Without detailing all of the evidence presented to the trial court, it appears to us that there is substantial competent evidence to support a finding that Sanyei is a Hong Kong corporation and acted as an Eagle’s agent in Hong Kong. Eagle’s personnel would generally go to Hong Kong where Sanyei had different manufacturers’ wares on display. After deciding to purchase certain items, Eagle representatives would execute a purchase order with Sa-nyei requiring Sanyei to obtain the merchandise properly assembled and packaged as per Eagle’s instructions and ship it F.O.B. Hong Kong to Eagle at various destinations in the United States, including Florida. Sanyei’s commission for this service was added to the cost of the merchandise. The total cost was paid to Sanyei who, in turn, paid the manufacturer. Sa-nyei possessed a letter of credit from a bank in Miami which made final payment to Sanyei in Hong Kong. Eagle’s president described Sanyei as a trading company in Hong Kong that represented Eagle in negotiating for the purchase of these goods from the manufacturers and shipping them to Eagle in the United States.

To demonstrate sufficient contacts to justify use of the long arm statute, appellants point to evidence such as the fact that some of Sanyei’s personnel came to the United States from time to time, that Sa-nyei had sold large quantities of toys to Eagle and knew that some of them would end up in Florida, and that Sanyei had sent sample items to Eagle. We have carefully considered all of the evidence that could constitute sufficient connexity with Florida to subject Sanyei to Florida jurisdiction and find it lacking. Keeping in mind that Sa-nyei was not the manufacturer of the product, nor a distributor thereof, but rather was Eagle’s agent in the Orient for the procurement of the toys, we are unable to discern any demonstration of the minimum contacts required for this type of service of process. ■

Appellants also contend that Sanyei consented to the trial court’s jurisdiction based on certain provisions contained in the purchase order form regularly used by Sa-nyei and Eagle. The provisions at issue are listed under the heading “Purchase Order Form Terms and Conditions” (Terms) and the parties to the agreement are denominated “Vendor” and “Purchaser.” Paragraph 7 of the Terms states:

“Vendor hereby consents to in person-am jurisdiction of Vendor in any Court where any action, claim or suit based upon any cause hereunder is prosecuted, and further agrees that service of summons may be made upon Vendor by mail addressed, postage prepaid, to Vendor’s last known address.... ”

The trial court found that Sanyei was not a Vendor under the agreement in its capacity as Eagle’s purchasing agent. Even assuming that Sanyei is a Vendor under the agreement, we hold that the consent to jurisdiction contained in paragraph 7 does not extend to the claim sub judice. Consent is limited by the terms of this provision to situations “where any action... based upon any cause hereunder is prosecuted.” Based upon the intention of the parties evinced by this agreement, we believe that this provision is properly construed to mean that the Vendor consented to jurisdiction for any action arising out of the breach of some duty owed the Purchaser that has a basis in an agreed term or condition of this contract. Under the agreement, the consent to jurisdiction covers such actions by the Purchaser as breach of warranty due to defective workmanship, indemnity due to liability for injuries caused by the product sold, and failure to timely deliver the goods. If Sanyei is a Vendor under this agreement, its consent to jurisdiction did not extend to the action brought by appellants.

Accordingly, we affirm the order appealed from.

AFFIRMED.

DOWNEY and WALDEN, JJ., concur.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting:

I dissent because I believe that plaintiffs’ jurisdictional allegations are sufficient to withstand a motion to dismiss.

Plaintiffs’ complaint alleged that Sanyei displayed, marketed and/or sold the toy gun involved in this suit, and distributed or retailed the toy. It further alleged that Sanyei invited an Eagle representative to Hong Kong to view various goods available for purchase, and that Sanyei knew the goods offered for sale would ultimately be shipped to Florida. Moreover, Sanyei was alleged to have shipped goods to Florida on many occasions and to have derived substantial income from sales in Florida.

Affidavits and depositions filed in support of these jurisdictional allegations show that Eagle purchased about 752 dozen of the toy guns from Sanyei, as well as many other items. Eagle places between 100 to 250 purchase orders per year with. Sanyei, generating between $520,000 to $900,000 in annual sales. Significantly, each of the 100 to 250 purchase orders signed by Eagle and Sanyei contained the following provision:

Vendor hereby consents to in personam jurisdiction of vendor in any court where any action, claim or suit based upon any cause hereunder is prosecuted, and further agrees that service of summons may be made upon vendor by mail addressed, postage prepaid, to vendor’s last known address.

Sanyei obviously understood that it was doing business in Florida. Its consent to Florida judicial resolution of disputes with Eagle is compelling evidence of this fact.

Sanyei, however, argues that the Florida long-arm does not reach it because it is not the manufacturer or seller of the toy gun. Rather, Sanyei claims it is merely a shipper or a broker. I reject this characterization because the evidence clearly establishes that Sanyei was a seller of the toy to Eagle, notwithstanding the labels attached by Eagle and Sanyei to their business relationship. In reaching this conclusion, I rely primarily on the uncontroverted deposition testimony of John Weil, President of Eagle, who described Sanyei as a trading company that acted on its behalf in the Orient by negotiating prices with foreign manufacturers. According to Weil, Eagle representatives travel to Hong Kong and meet with Sanyei representatives in their showrooms. There Eagle selects merchandise and places purchase orders with Sanyei. Sanyei, in turn, buys the ordered goods from a foreign manufacturer, purportedly standing as Eagle’s “agents with the factory.” Eagle reimburses Sanyei for the cost of the goods and pays it an additional “commission” or percent of the cost. Thus, Sanyei purports to stand as a broker for an American buyer of foreign goods.

In my view, Sanyei is nothing more than a middleman which buys and resells goods at a profit. Given the substantial volume of goods it sells and ships to Florida businesses and the handsome pecuniary benefits it derives therefrom, Sanyei is clearly conducting business in Florida so as to subject it to long-arm jurisdiction under section 48.193(l)(a).

Whether a nonresident is conducting business in Florida for purposes of the Florida long-arm statute turns on the nature, not the extent, of the nonresident’s activities in Florida. Oriental Imports & Exports v. Maduro & Curiel’s, 701 F.2d 889 (11th Cir.1983). The test is whether the activities of the nonresident corporation, considered collectively, show a general course of business activity in Florida for pecuniary benefit. April Industries, Inc. v. Levy, 411 So.2d 303 (Fla.3d DCA 1982). This court has previously held that the promotion and solicitation of sales in Florida is sufficient to confer personal jurisdiction over foreign businesses. See Shoei Safety Helmet Corp. v. Conlee, 409 So.2d 39 (Fla. 4th DCA 1981), appeal dismissed, 421 So.2d 518 (Fla.1982). I would apply the same principle here and hold that the motion to dismiss should have been denied because Sanyei has failed to negate plaintiffs’ allegations that it derived substantial revenue from direct sales to a Florida business entity. See also Elmex Corp. v. Atlantic Federal Savings & Loan Association of Fort Lauderdale, 325 So.2d 58 (Fla. 4th DCA 1976); Sayet v. Interstate Blood Bank, Inc., 245 So.2d 142 (Fla. 3d DCA 1971).

      . Any determination in this regard is made somewhat difficult by the fact that no purchase order in which the Terms are incorporated is part of the record. The page containing the Terms appears in the record separate and apart from any order form listing the parties to the transaction.

      . Hereunder is defined as "under this agreement: in accordance with the terms of this document.” Webster’s Third New International Dictionary (Unabridged), p. 1059 (1966).

      . Weil described the payment arrangement as follows:
      We add the percent that they charge us to the cost of what the factory charges. So if the cost is a dollar and their percent is six percent, we pay them 1.6 in total.

      . Section 48.193(l)(a), Florida Statutes (1983), provides:
      (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
      (a) Operates, conducts, engages in, or carries on a business or business venture in this state or has an office or agency in this state.


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    COLONIAL CEDAR COMPANY, INC., Appellant, v. ROYAL WOOD PRODUCTS, INC., a Florida corporation, Florida National Bank of Miami, a national banking association, and Capital Bank, a national banking association, Appellees.
    No. 83-1410.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.

      Reed A. Bryan of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Laud-erdale, for appellant.
    Kyle R. Saxon of Paige & Catlin, Miami, for appellee Florida National Bank of Miami.
   PER CURIAM.

REVERSED. We believe the trial court erred in entering summary judgment for the appellee bank on the appellant’s claim that the bank wrongfully refused to issue payment on a letter of credit. In seeking a summary judgment below the bank relied solely on the grounds that the appellant’s letter request for payment failed to meet the requirements of the letter of credit that a formal draft and certificate be filed with the bank before the credit need be honored. We believe there remains an issue both as to the sufficiency of the letter request for payment to serve as a draft and certificate and as to the bank’s subsequent waiver of such formal requirements. An issue not briefed by the parties but also requiring resolution below is whether the appellant was entitled to payment under the letter of credit which required certification that a shipment of goods had been inspected and accepted by a third party, when, at the time of the demand for payment, it appears that the shipment had been rejected. We express no views on this issue and leave it to the parties and the trial court to resolve along with the other issues we find still alive. Accordingly, this cause is remanded for further proceedings consistent herewith.

ANSTEAD, C.J., and DOWNEY, J., concur.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specialty-

I concur that the trial court erred in awarding summary judgment to the bank. As to what the trial court should do on remand, the record shows that the bank pled as an affirmative defense the failure of the plaintiff/beneficiary of the letter of credit to comply with its terms. There was no more specificity than this and none was apparently needed as the plaintiff filed a reply, first denying the contention, then alleging that the bank had waived this defense by its failure “to promptly inform plaintiff of the deficiency in its demand.” In short, the trial court must address all of the issues properly raised by the parties’ pleadings.

      . Florida Rules of Civil Procedure 1.100(a) contemplates a reply which contains an avoidance to the affirmative defense. The trial court would assume that the affirmative defense was denied without the necessity of a reply.


author: BERANEK, Judge.

text:
    Linda Jay ALLEN, Appellant, v. Jack Wayne CHILDRESS, Appellee.
    No. 83-1832.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.
    Richard Bernstein of Fred J. Berman, P.A., Fort Lauderdale, for appellant.
    No appearance on behalf of appellee.
   BERANEK, Judge.

This appeal arises from a custody battle between the unmarried parents of a four-year old child. The trial court awarded custody of the child to his putative father after determining the mother unfit. We reverse.

From his birth until May, 1982, the child lived with his parents or under the care of his mother alone. In May, the respondent/father removed the child from the state and brought him to Tennessee. Petitioner/mother filed a proceeding seeking custody alleging that she feared the father would harm the child. The petition was referred to a general master who recommended that the Department of Health and Rehabilitative Services (HRS) investigate the homes of the father and mother. The report from the master specifically stated that the father resided in Knoxville, Tennessee, and that pending completion of the study, the child was to continue living with his father. The trial court ratified and approved all aspects of the master’s recommendations in December, 1982.

Because HRS could not perform an investigation in Tennessee, it requested its counterpart in that state to do the home study. On April 4, 1983, the report on the father was sent to the general master with a cover letter stating that the child’s circumstances were harmful and urging a prompt resolution of the petition. The report was also sent on the same day to HRS with a letter, a copy of which was sent to the master, stating, “We believe the child (name), has been harmed and continues to be harmed by his father, Jack Wayne Chil-dress. We urge you to expedite your report to the court to prevent possible serious harm to the child.” Apparently alerted by HRS to the situation, the mother immediately traveled to Tennessee in order to get her son back in her care and enticed respondent to return to Florida. HRS completed its report on the mother finding her to be a fit mother. The mother then petitioned the Florida court for temporary custody which was granted. The matter was set for a final hearing on the custody issue.

Both parents testified at the hearing. The trial court admitted into evidence the report prepared by HRS on the mother. However, the court refused to admit or consider the five-page report prepared by the Tennessee Department of Human Services which found the child to be in danger of harm and which recommended that the father should not even visit the child except briefly and under constant professional supervision. The trial court then issued its order of custody stating that “the paramount consideration of this court in determining custody is the best interest and welfare of this child.” The court ignored the determination of HRS on the fitness of the mother and found her unfit based on the findings that she was on welfare, had lived with a variety of individuals, and had enticed respondent to return to Florida just to get her child back. The father, on the other hand, was found to have employment in Tennessee. Custody was awarded to the father in Tennessee.- The mother was allowed visitation only under supervised conditions.

The mother appeals, and as one would suspect, the father has not favored us with a brief. She contends that the trial court erred in not admitting the Tennessee report. The trial court found that the father was the fit parent to have custody based on his testimony at the hearing. The court refused to receive into evidence the report of the Tennessee Department of Human Services because “reports of this nature are very much the product of hearsay discussions, and I don’t think ... it would be proper for this Court to take them and simply do it at face value.” The court admitted the report prepared by HRS even though it was based on hearsay because Section 61.20, Florida Statutes (1983), permits it. This statute reads as follows:

61.20 Social investigation and recommendations when child custody is in issue. — In any action where the custody of a minor child is in issue, the court may request the Department of Health and Rehabilitative Services or qualified staff of the court to make an investigation and social study concerning all pertinent details relating to the child and each parent. The department or qualified staff of the court shall furnish the court with a written report with its recommendation with a written statement of facts found in its social investigations on which its recommendations are based. The court may consider the information contained in the report in making a decision on the child’s custody and the technical rules of evidence do not exclude such report from consideration.

In other words, the court distinguished the two reports based on the state in which the report was prepared. We cannot understand how the trial court could issue an order directing that an investigation, be done knowing one of the parties resided out of state and then refuse to consider the report on the investigation because it was done by a counterpart agency in the other state. The refusal to admit this report defeats the purpose of the above statute. Although the statute is written in discretionary terms, we believe that once a court decides to request a report, the court must at least read that report in order to determine whether or not it wishes to use the information contained therein in ruling on the custody issue. We hold that the trial court erred in not admitting the report prepared by the Tennessee Department of Human Services which agency has the same function and purpose as our HRS.

We are shocked at the overall inequities which this proceeding presented. Pursuant to Section 744.301(1), Florida Statutes (1983), the mother is the natural guardian of her son. As such, there must be a showing that she is unfit in order for the putative father to be awarded custody. In the Interest of R.L.G., a child, 274 So.2d 4 (Fla. 4th DCA 1973). Thus, the mother went into the courtroom with a statutory presumption in her favor. Furthermore, the mother had a favorable agency report while the father’s report was unfavorable to say the least. Finally, the trial court was aware, or should have been aware, that the father’s report indicated a very real danger of physical harm to a helpless infant. Under such circumstances, courts must act to protect the child, not merely to adjudicate the rights of parents. The guardian ad litem program was specifically designed to prevent exactly the situation in which this child now finds himself. In this case it would certainly have been advisable to appoint a guardian at the time the court requested investigative reports.

Although not essential to our holding, we further comment that receiving welfare payments does not necessarily make a parent unfit any more than being financially secure makes a parent fit. Furthermore, living with a variety of individuals is not in and of itself indicative of unfitness particularly where the parents of the child are both unmarried and both have obviously lived with others.

We reverse and remand for further proceedings. The evidence, as it existed at the time of the ruling below, did not support an award of custody to the father. We recognize, however, that matters of child custody are subject to the continuing jurisdiction of the circuit court. Diaco v. Diaco, 363 So.2d 183 (Fla. 2d DCA 1978), and Hechler v. Hechler, 361 So.2d 1122

(Fla. 3d DCA 1977). We thus remand with instructions that custody be awarded to the mother of the child in accordance with Section 744.301(1), Florida Statutes (1983), unless evidence is presented demonstrating unfitness on the part of the mother.

REVERSED AND REMANDED.

DOWNEY and HURLEY, JJ., concur.

      .The court order read as follows:
      2.The petitioner in this cause has not illustrated any means of support for at least the last five years and apparently exists on welfare. There is evidence that she has lived with a variety of individuals at least since the birth of this child. Including this child, there are two other children. The eldest of these children, a teenager, resides with the petitioner's mother. The petitioner’s mother testified that petitioner did not contribute to this child’s support.
      3.Prior to April, 1983 the General Master in this cause placed custody of this child in the respondent, JACK WAYNE CHILDRESS. In April, 1983, the petitioner travelled to Tennessee to meet with the respondent. The petitioner readily admits that she told the respondent that she wanted them to get back together and that ruse was purely a subterfuge in order to entice the respondent to bring the minor child back to Broward County.

      . The guardian ad litem program consists of volunteer guardians ad litem trained in the curriculum provided by the program administered through the office of the state court administrator, Supreme Court of Florida.


text:
    Douglas L. JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 83-1343.
    District Court of Appeal of Florida, Second District.
    April 25, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was convicted of nine crimes which were charged in a single information. He now attacks the propriety of the sentences imposed for these crimes.

At sentencing the court stated:

At this time as to Count I, I’m going to adjudicate the defendant guilty of the attempted robbery, sentence him to fifteen years in the Florida State Prison.
As to Count II, I will adjudicate the defendant guilty of robbery with a weapon. I am going also to retain jurisdiction over one-third of that sentence, and I will explain my reasons for retention when I conclude the sentencing.
As to Count V, I will adjudicate the defendant guilty of aggravated assault with a weapon, sentence him to five years in the Florida State Prison with credit, to run consecutive to Count IX and. concurrent with Count II.
As to Count III, I will sentence Mr. James to thirty years in the Florida State Prison. It will run consecutive to Counts I, II and Count V.
As to Count IV, I will adjudicate Mr. James guilty of robbery with a weapon and sentence him to thirty years in the Florida State Prison. This is to run consecutive to Count III. I am also going to retain jurisdiction on Count IV.
As to Count VII, Judge Merckle directed a verdict as to the kidnapping. He adjudicated the defendant guilty as to false imprisonment. He sentenced him to five years in the Florida State Prison. I will sentence him to five years in the Florida State Prison.
As to Count VIII, I will adjudicate him guilty of false imprisonment, sentence him to five years in the Florida State Prison to run consecutive to Count VII.
As to Count IX, I will adjudicate the defendant guilty, sentence him to fifteen years in the Florida State Prison to run concurrent; however, I will retain jurisdiction on Count IX also.
On Count VI, I will adjudicate the defendant guilty, sentence him to fifteen years in the Florida State Prison. This sentence is to run consecutive to Count IV. Excuse me. I will retain jurisdiction on this count also.
I will also further state for the record that all these counts are to run consecutive to the previous sentence issued by this court for violation of probation.
I am retaining jurisdiction pursuant to Chapter 947.163 for one third of the maximum sentence imposed ....

Relying upon Gatti v. State, 324 So.2d 193 (Fla. 2d DCA 1975), appellant first argues that his written sentences should be corrected to conform to those pronounced in open court. Accord Yates v. State, 429 So.2d 815 (Fla. 2d DCA 1983). He also points out that contrary to Goree v. State, 411 So.2d 1352 (Fla. 3d DCA 1982), the written sentences purport to retain jurisdiction for one third of each of the consecutive sentences rather than one third of the total of the consecutive sentences. Accord Adams v. State, 435 So.2d 953 (Fla. 2d DCA 1983). Finally, appellant contends that his sentences as imposed are virtually incomprehensible.

Since we accept appellant’s third premise, there is no need for us to reach his first two contentions. After imposing the sentences, the trial judge filed certain notes in the court record with the observation, “maybe the Second District Court can look at the record to determine the actual sentences.” His confidence in our abilities is misplaced. We simply cannot say with certainty what sentences appellant will be serving at any particular point in time during his incarceration. Accordingly, as in Campbell v. State, 379 So.2d 1011 (Fla. 4th DCA), cert. denied, 388 So.2d 1110 (Fla.1980), we “remand the case to the trial court and respectfully request the trial judge to resentence appellant in a fashion and in terms which will be easier for all to understand.” Id. at 1013.

HOBSON, A.C.J., and GRIMES and CAMPBELL, JJ., concur.


author: DANAHY, Judge.

text:
    GROWTH LEASING, LTD., a limited partnership, Appellant, v. GULFVIEW ADVERTISER, INC., a corporation organized under the laws of the State of Florida, Thomas J. Smith and C. Arthur Beavor, Appellees.
    No. 83-1618.
    District Court of Appeal of Florida, Second District.
    April 25, 1984.

      David A. Townsend of Sessums & McCall, Tampa, for appellant.
    Verne L. Freeland, Miami, for appellees.
   DANAHY, Judge.

In a situation apparently not previously addressed by a Florida court, we hold that the trial judge erred in concluding that a lease agreement between the appellant and the appellees was in reality a financing arrangement which constituted a usurious loan transaction.

The appellees believed they needed a certain computer for purposes of their business and selected one at Addressing Systems, Inc. (the supplier). The supplier determined that it would not finance the sale of the computer to the appellees but put the appellees in touch with the appellant. The appellees entered into an arrangement with the appellant under which the appellant would purchase the computer from the supplier and lease it to the appellees.

A lease agreement was entered into between the appellant and the appellees and the appellees took delivery of the computer from the supplier. It turned out that the computer did not meet the appellees’ needs, so the appellees stopped paying rent and the appellant repossessed the computer approximately ninety days after initial delivery. The appellant then brought this action for damages resulting from the appel-lees’ breach of the lease agreement. The appellees asserted the affirmative defense of usury. The trial judge sustained that defense. We reverse.

This court early held, and it is the general rule, that the substance of a transaction rather than the form will be examined to determine whether a transaction not cast in the form of a loan nevertheless constitutes a usurious loan transaction. For the purpose of determining substance, parol evidence is admissible, including all negotiations, circumstances and conduct of the parties surrounding and connected with their contract, any or all of which may be material in determining whether the form of the transaction covered an intent to violate the usury law. Indian Lake Estates, Inc. v. Special Investments, Inc., 154 So.2d 883 (Fla. 2d DCA 1963).

The trial judge recognized these rules and received testimony and other evidence in a nonjury trial. At its conclusion, he entered a final judgment which did not recite any findings of fact, but contained the ruling that the lease agreement in this case was in reality a financing agreement and that it was usurious under section 687.-071, Florida Statutes (1983). The appel-lees, in support of the trial judge’s ruling, point out that the evidence showed that the total rental payable under the lease agreement (exclusive of sales taxes) was $19,-950.76 and the equipment was purchased by the appellant from the supplier for $13,-882.00. The appellees point out also that they traded in old equipment with the supplier and received a trade-in value on the computer purchased from the supplier; that the appellees dealt with the supplier and not with the appellant; that a credit check was required; that a UCC financing statement was filed; that all manufacturing warranties were transferred to the ap-pellees under the terms of the lease agreement; that the risk of loss was totally upon the appellees; that the appellant did not maintain any showroom, inventory, or repair facilities; and the appellant was never in possession of the computer until the so-called lease agreement was breached and the computer repossessed by the appellant. All of these indicia, say the appellees, point to a loan arrangement rather than a true lease.

We disagree because there is one crucial fact present here which, in our view, is determinative. The lease agreement contains the following provisions:

13. SURRENDER-RETURN: Upon the expiration or early termination of this lease, lessee at lessee’s expense, shall return the equipment in good repair; ordinary wear and tear resulting from proper use thereof alone is excepted....
14. TITLE: Title to the equipment shall remain at all times in the name of the lessor.

When a third party purchases equipment from a supplier and then leases that equipment to the party wishing to acquire its use, the courts have found the transaction to be a loan rather than a true lease under circumstances such as those in the present case, where the lessee has the option to purchase the property at the end of the lease term for a nominal amount. The option may be contained in the lease or orally conferred on the lessee. E.g., McGalliard v. Liberty Leasing Co. of Alaska, Inc., 534 P.2d 528 (Alaska 1975); McKeeman v. Commercial Credit Equipment Corp., 320 F.Supp. 938 (D.Neb.1970). Where there is no such option to purchase at the end of a lease term, the courts have held that the lease agreement is in fact a true lease rather than a loan transaction. E.g., Hough v. Continental Leasing Corp., 275 Ark. 340, 630 S.W.2d 19 (1982). See Annot., 94 A.L.R.3d 640 (1979). Our research has revealed no case in which a court has found a lease agreement to be a subterfuge for a loan where the lessee had no option to purchase or to acquire title at the end of the lease term.

It is true that one of the individual appel-lees testified “I knew at the end of the lease the equipment was supposed to be ours.” However, the appellant denied any representation to the appellees to that effect, and the testimony indicated that the only such representation was made by the supplier. There was no evidence to support the proposition that the supplier was the agent of the appellant; on the contrary, the lease agreement specifically provides that the supplier is the agent of the lessee. Accordingly, there is no basis in the evidence for attributing such a representation to the appellant, whose general partner testified that it was the understanding and the intent of the appellant to retain title to the equipment and to receive it back at the end of the lease term. Thus, the evidence fails to establish that the appellees had any option to purchase or right to acquire title to the computer at the end of the lease agreement. Accord Burr v. Capital Reserve Corp., 71 Cal.2d 983, 80 Cal.Rptr. 345, 458 P.2d 185 (1969).

In our view, the trial judge reached the wrong conclusion of láw based on the evidence before him. We reverse and remand for further proceedings consistent with this opinion.

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

      . The UCC financing statement contained the proviso that "This is a lease and filed for informational purposes only."


author: GRIMES, Judge.

text:
    Raymond J. KENNEDY, Appellant, v. Donna A. KENNEDY, Appellee.
    No. 83-1637.
    District Court of Appeal of Florida, Second District.
    April 25, 1984.
    Joseph M. Ciareiaglino, Jr., of Osborne & Ciarciaglino, St. Petersburg, for appellant.
    James C. McKenzie, Clearwater, for ap-pellee.
   GRIMES, Judge.

In this appeal from a judgment of marriage dissolution, the husband complains that the trial court erred in failing to grant him a special equity in the marital home.

The parties were married in 1979. The home was purchased in December of 1980 for $46,000. Title was placed in the parties’ names as tenants by the entireties. .The $6,000 down payment was furnished by the husband from a source totally unconnected to the marital relationship. There was no evidence that the husband intended the down payment as a- gift to the wife.

This case is controlled by Landay v. Landay, 429 So.2d 1197 (Fla.1983), in which the supreme court stated:

[T]he correct formula to be used in situations where a spouse furnishes some but not all of the consideration for entireties property, may be stated thusly: in addition to that spouse’s automatic one-half share, the contributing spouse acquires a special equity in the property equal to one-half the ratio which that spouse’s contribution bears to the entire consideration.

429 So.2d at 1200. Applying the Landay formula to the case at hand, the husband is entitled to a special equity in the marital home of &h% ($6,000 -h $46,000 X ⅞).

Accordingly, the final judgment is reversed to the extent that the husband shall be entitled to a 56V2% interest in the marital home. Pursuant to the provisions of the judgment, at such time as the home is sold, the husband should be credited with 56⅝% of his payments made on mortgage principal during the time the wife has retained exclusive possession in order to raise the children. We affirm the judgment in-all other respects.

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


author: RYDER, Judge.

text:
    Marjorie E. KOZELSKI, Appellant, v. Charles KOZELSKI, Appellee.
    No. 83-1707.
    District Court of Appeal of Florida, Second District.
    April 25, 1984.
    Anthony A. Accorsi, Avon Park, for appellant.
    Charles Kozelski, pro se.
   RYDER, Judge.

Marjorie Kozelski appeals from the final order of the trial court dissolving the marriage between Marjorie and Charles Kozel-ski. We hold that the trial court erred by not awarding permanent periodic alimony to Mrs. Kozelski, and by awarding to her an insufficient amount of child support.

The parties were married in December 1965. One child was born of the marriage in 1966. The wife had worked in a factory prior to the marriage; after marriage, she was a housewife and mother, and also worked occasionally in the husband’s restaurants. Both parties had gainful employment after they moved from Ohio to Florida. At the time of the final hearing, the husband’s net weekly income was over $240.00, while the wife’s gross monthly income was approximately $312.00.

In the final judgment, the trial court awarded the exclusive use and possession of the marital residence to the wife until the emancipation of the parties’ minor child. Each party was ordered to pay one-half of the mortgage, taxes, insurance premiums, maintenance and upkeep of the residence. The court awarded to the wife a special equity in the residence in the amount of. $20,000.00. Other property was also distributed. Additionally, the trial court ordered Mr. Kozelski to pay $37.00 per week child support, attorney’s fees, and court costs.

Mrs. Kozelski has argued that the trial court should have awarded to her permanent periodic alimony. In light of the facts presented, including the parties’ respective incomes and needs, and pursuant to the standards enunciated in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we hold that the trial court erred by not awarding permanent periodic alimony to Mrs. Kozelski. On remand, the trial court is to reconsider the evidence, particularly relating to the ability of the husband to pay and the needs of the wife, and the standards provided in Canakaris, and shall award to Mrs. Kozelski a reasonable amount of permanent periodic alimony.

The former wife has also argued that the trial court abused its discretion in ordering only $37.00 per week child support. Again, considering all of the facts and circumstances of this case, we must agree that the amount of child support awarded is inadequate. Upon remand, the trial court shall reconsider the amount ordered as child support. See Peak v. Peak, 411 So.2d 325 (Fla. 5th DCA 1982); Johnson v. Johnson, 367 So.2d 695 (Fla. 2d DCA 1979).

We have considered the arguments presented by the wife challenging the amount awarded to her as attorney’s fees. It was within the trial court’s discretion to determine a reasonable amount of attorney’s fees based upon its “evaluation of all relevant factors.” Knott v. Knott, 395 So.2d 1196 (Fla. 3d DCA), petition for review denied, 411 So.2d 383 (Fla.1981). We find that there was no abuse of discretion by the trial court in the award of attorney’s fees.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

HOBSON, A.C.J., and LEHAN, J., concur.


author: OTT, Chief Judge.

text:
    Eleanor Lucille BURTON, Appellant, v. Raymond Harold BURTON, Appellee.
    No. 83-1961.
    District Court of Appeal of Florida, Second District.
    April 25, 1984.

      Marc A. Tenney, St. Petersburg, for appellant.
    No appearance by appellee.
   OTT, Chief Judge.

In this dissolution of marriage action, the lower court ruled that in the absence of personal service on the appellee it lacked jurisdiction to deal with the title or make any award of the marital home of the parties to appellant. We reverse.

Appellant and appellee were married in 1952. Approximately twelve years ago they purchased the marital home in question in their joint names. Three years later appellee abandoned the family and his present whereabouts are unknown. For the last nine years appellant has been the sole supporter of the family of four children, one of whom is still a minor. She has had the sole responsibility of preserving, and protecting the marital home, including payment of the mortgage,, taxes, utilities, and maintenance.

Appellant eventually petitioned to dissolve the marriage. She sought, among other things, an award of the marital home either as lump sum alimony or because of her special equity therein. Pursuant to chapter 49, Florida Statutes (1981), constructive service by publication was lawfully perfected on appellee. He failed to answer or otherwise plead, and a default was entered. In the final judgment, the lower court ruled that “the court lacks personal service upon [appellee] and therefore the marital home of the parties ... shall become a tenancy in common.”

Where personal service of process cannot be effected in an action to enforce any equitable title or interest in real or personal property within the jurisdiction of the court, service by publication is proper. See § 49.011(1), Fla.Stat. (1981). Similarly, such service is proper in any action for the dissolution of a marriage. § 49.011(4), Fla. Stat. (1981). Because the property, together with the appellant’s equitable claim against it, was described in the petition for dissolution, see section 49.08, Florida Statutes (1981), and because the property was located within the lower court’s jurisdiction, we conclude the lower court had jurisdiction of both the property and the subject matter to make an award of the marital home to appellant consistent with proper proof of equitable entitlement. See Lahr v. Lahr, 337 So.2d 837 (Fla.2d DCA 1976).

Appellant should have been afford.ed an opportunity to establish her need for the home as lump sum alimony and appellee’s ability to pay. See Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). Alternatively, she may be entitled to the home if she establishes a special equity therein. Although payments on real property made with funds earned during the marriage do not ordinarily give rise to a special equity, Baker v. Baker, 403 So.2d 1111 (Fla. 2d DCA 1981), the lower court should consider whether appellant has acquired a vested interest in the home because of contributions “over and above the performance of normal marital duties.” Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980).

The final judgment of dissolution is therefore REVERSED, and the case is REMANDED for further proceedings consistent herewith.

BOARDMAN and RYDER, JJ., concur.


text:
    Zayneller GATES, Appellant, v. STATE of Florida, Appellee.
    No. AT-274.
    District Court of Appeal of Florida, First District.
    April 25, 1984.

      Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Zayneller Gates, pro se.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Ray v. State, 403 So.2d 956 (Fla.1981); James v. State, 386 So.2d 890 (Fla. 1st DCA 1980).

BOOTH, SHIVERS and JOANOS, JJ., concur.


author: MILLS, Judge.

text:
    Aquila A. BRADFORD, Appellant, v. STATE of Florida, Appellee.
    No. AU-104.
    District Court of Appeal of Florida, First District.
    April 25, 1984.
    Michael Allen, Public Defender, Terry P. Lewis, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Bradford appeals his conviction for possession of more than twenty grams of marijuana. Bradford pled nolo contendere to the charge, specifically reserving the right to appeal the denial of his motion to suppress. The contention on appeal is that the affidavit supporting the search warrant did not demonstrate probable cause. We disagree and affirm.

The affidavit was executed by a police officer and contains the following to demonstrate probable cause:

That on 12/13/82, following his arrest for delivery of marijuana, the affiant interviewed Bishop Lee McCants at the Escambia County Sheriff’s Department, Investigation Division. McCants stated that he had been to the above described location on Friday evening, 12/10/82, where he (McCants) made contact with a black male identified as Junior Bradford. McCants further stated that Bradford gave him (McCants) a plastic bag containing several smaller bags of marijuana for which he (Bradford) stated he wanted to be paid seventy five dollars after the marijuana was sold. McCants also stated that during this meeting with Bradford, he (McCants) observed a larger quantity of marijuana at the above described location. The plastic bag of marijuana which Bradford had given McCants was delivered to undercover officer, Terry Kilgore, in the parking lot of the Racetrack Service Station on Highway 29 on 12/13/82, at approximately 2:40 P.M. During the interview with McCants, he (McCants) placed a phone call to the above described location (478-9007). During this call, McCants talked to a subject identified as Junior. McCants told Bradford that he (McCants) would be coming to his (Bradford’s) house in about one hour and a half. At this time McCants asked “what more you got?” At this time the subject identified as Junior answered “Pm still good, Pm still good”.
From the above listed facts, this affiant does believe that marijuana is being kept at the above described location.

The affidavit contains facts showing the basis of the informant’s knowledge; specifically, that McCants was with Bradford in Bradford’s house on 10 December 1982 when McCants saw the marijuana.

The affidavit also contains facts showing the credibility of the informant and the reliability of his information. The informant was not anonymous, but named in the affidavit. The affiant was present when the informant had a telephone conversation tending to verify the information he had already given.

Considered as a whole, the affidavit provided a substantial basis for the magistrate’s conclusion that probable cause existed. Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Zaner v. State, 444 So.2d 508, (Fla. 1st DCA 1984).

AFFIRMED.

SMITH and NIMMONS, JJ., concur.


author: NIMMONS, Judge.

text:
    Robert DELANA, Appellant, v. STATE of Florida, Appellee.
    No. AV-131.

    District Court of Appeal of Florida, First District.
    April 25, 1984.
    Michael Allen, Public Defender, and Charlene V. Edwards, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Henri C. Caw-thon, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

The defendant appeals from his conviction of the offense of grand theft which involved the theft of $135 worth of oil paints from an Albertson’s store in Jacksonville. Before he exited the store, he was apprehended by Mr. Miller and Mr. Gruny, the drug department manager and store manager, respectively, who escorted the defendant to the store’s office. Miller testified that, prior to the arrival of police officers, the defendant refused to sign a “rights form” which Miller requested that he sign. Defense counsel objected on relevancy and Fifth Amendment grounds. Defendant contends on appeal that the above testimony regarding the rights form was violative of his Fifth Amendment right against self-incrimination. He has not raised the relevancy ground on appeal. In Williams v. State, 347 So.2d 472 (Fla. 1st DCA 1977), this court held a store manager’s testimony that the defendant neither admitted nor denied the theft charge did not violate the defendant’s Fifth Amendment rights since her detention by the store manager did not constitute police custody under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The case sub judice is controlled by Williams. We recognize that our decision is in direct conflict with Jones v. State, 434 So.2d 337 (Fla. 3rd DCA 1983), and certify such conflict pursuant to Fla.App.R. 9.030(a)(2)(A)(vi).

We have examined the other grounds asserted by the defendant and find them to be without merit.

AFFIRMED.

MILLS and SMITH, JJ., concur.

      . There is no indication as to what the “rights form” consisted of. It was neither marked for identification nor further described by testimony.


text:
    Jerome ANDREWS, Appellant, v. Gwendolyn D. ANDREWS, Appellee.
    No. AV-154.
    District Court of Appeal of Florida, First District.
    April 25, 1984.

      Joann G. Slay of Harnett, Curry & Slay, Quincy, for appellant.
    Blucher B. Lines of Lines, Hinson & Lines, Quincy, for appellee.
   MILLS, Judge.

The former husband seeks review of the trial court’s order partially denying his petition for modification of his child support obligations. We affirm.

These parties were divorced on 1 February 1988. There were three children born of the marriage. Husband was awarded custody of his twin daughters. Wife was awarded custody of the youngest child, also a daughter. Husband was ordered to pay $150 per month to support his youngest child, but wife was not ordered to pay any money in support of the older twin daughters.

On 2 August 1983, wife filed a motion for contempt, alleging that husband was in arrears on his child support obligations. Husband responded by filing a petition for modification in which he sought to cancel altogether his obligation to support the youngest daughter.

Following a hearing on both motions, the trial court found husband in contempt because of his failure to pay the $650 in accrued child support. The court also granted in part husband’s petition for modification by reducing his monthly support obligations to $135 per month. This appeal by husband ensued.

In order to obtain a modification of child support obligations, the party seeking modification must demonstrate that there has been a substantial change of circumstances since the entry of the order awarding support. Deatherage v. Deatherage, 395 So.2d 1169 (Fla. 5th DCA 1981). Decisions on the issue of modification of child support rest in the sound discretion of the trial court, and such decisions will not be disturbed on appeal absent a clear abuse of discretion. Diaco v. Diaco, 363 So.2d 183 (Fla. 2d DCA 1978). We find no abuse of discretion in the instant case.

The only basis which husband had for seeking modification was that he could not afford to provide the twins with the standard of living to which they had become accustomed if he was obligated to support his youngest daughter. We believe it is unrealistic for husband to think that two households can be maintained as cheaply as one. Given a fixed number of dollars coming to the former spouses, there almost has to be some reduction in the standard of living formerly enjoyed by the family.

AFFIRMED.

SMITH and NIMMONS, JJ., concur.


text:
    Barbara Perryman SHERROD, Appellant, v. James Zorn SHERROD, Appellee.
    No. AV-157.
    District Court of Appeal of Florida, First District.
    April 25, 1984.

      M. Blair Payne of Darby, Peele, Bow-doin, Manasco & Payne, Lake City, for appellant.
    Edwin B. Browning, Jr. of Davis, Browning & Hardee, Madison, for appellee.
   MILLS, Judge.

This is an appeal from the trial court’s decision that the parties’ minor child reside primarily with the father. We affirm.

Barbara and James married in 1974. They had one child, James Jr., who was five years old at the time of the final hearing in 1983. In 1982, James petitioned for dissolution of marriage requesting primary custody of James Jr. Barbara did not contest the dissolution, but counterpeti-tioned seeking, among other things, primary custody of the child.

In addition to the parties’ own testimony and other lay testimony, two expert witnesses testified at the final hearing. Dr. Albert Davis, a court-appointed psychiatrist, testified he examined the mother and the father. He found the father well adjusted and mentally stable. However, he found the mother mentally unstable and diagnosed her as suffering from a paranoia disorder. Davis opined that the child would be better off living with the father.

Robert Crankshaw, a licensed marriage and family therapist, gave expert testimony for the mother. Crankshaw testified he watched the mother and child interacting, and, based on what he saw, it was his opinion that the mother was the primary nurturing figure for the child and was capable of taking care of him. Crankshaw also testified that separating the child from the mother would be traumatic for the child. Crankshaw did not observe the father and child interacting and therefore formed no opinion of that relationship.

Following the final hearing, the trial court dissolved the marriage. Although the court ordered the parties to share parental responsibility, it decreed that the child’s primary residence be with the father, allowing visitation with the mother on alternate weekends and for two months during the summer.

Upon considering all relevant factors, trial courts should give the father the same consideration as the mother in determining custody without regard to the age of the child. Section 61.13(2)(b)l, Florida Statutes (1983).

After considering all the evidence, especially the court-appointed psychiatrist’s testimony concerning the mother’s mental condition, the trial court could find it was in the best interest of the child that he reside primarily with the father. The trial court did not abuse its discretion.

AFFIRMED.

SMITH and NIMMONS, JJ., concur.


text:
    Lida C. NEWMAN, Appellant, v. AREA HOUSING COMMISSION, American Liberty Insurance Company, and Escambia County, Florida, Appellees.
    No. AV-263.
    District Court of Appeal of Florida, First District.
    April 25, 1984.
    Stephen H. Echsner of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellant.
    Joe J. Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for Area Housing Commission and American Liberty Ins. Co.
    J. Dixon Bridgers, III, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Pensacola, for Escambia County.
   MILLS, Judge.

Newman filed suit against the defendants for personal injuries which she sustained allegedly as a result of the defendants’ failure to warn her of an inherently hazardous condition existing in a building owned by Area Housing Commission. The trial court entered final summary judgment in favor of the defendants. We affirm the final judgment on authority of Schoen v. Gilbert, 436 So.2d 75 (Fla.1983).

AFFIRMED.

SMITH and NIMMONS, JJ., concur.


author: NIMMONS, Judge. MILLS, Judge,

text:
    Kenneth Eugene WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. AW-66.
    District Court of Appeal of Florida, First District.
    April 25, 1984.

      Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

The defendant appeals from his conviction and sentence, he having entered a plea of nolo contendere to the offense of manslaughter. He claims that the trial court erred in denying the defendant’s motion to withdraw his nolo plea after defense counsel learned that the trial court was going to impose a ten-year sentence instead of a five-year term as contemplated under the negotiated plea. We agree and reverse.

The trial judge apparently thought that it was clear from the proceedings conducted at the time of the entry of the nolo plea that the only understanding was that the court would impose a five-year sentence if the sentencing guidelines range in the defendant’s case proved to be within the range of three to seven years but, if the guidelines range turned out to be greater than the three to seven year range, the court would be at liberty to impose a sentence within such greater range. On the contrary, the record is not clear that such was the agreement. The following are the excerpts from the plea dialogue dealing with the sentence negotiations:

MR. HELLMUTH [Defense Counsel]: Your Honor, first to maybe allay Mr. Williams’ fears, I guess I should on the record state that we entered the plea with the understanding that the state has recommended a sentence of five years in this case and the court has agreed to go along with that sentence.
THE COURT: That’s not true, He’s sentenced under the guidelines and the guidelines give a range, the middle of which is five years. The state would recommend five years and the court indicated it would impose that.
MR. HELLMUTH: I understand.
THE COURT: Is that the understanding?
MR. MITCHELL [Prosecutor]: Is he going to affirmatively move to proceed under the guidelines?
THE COURT: He will, but that’s what I was telling him.
THE COURT: Oh, okay. You understand that the maximum allowed by law is 15 years, but under the negotiations I will order a presentence investigation and they say the guidelines will come up within five years and that I will sentence you to five years. Do you understand that?
THE DEFENDANT: Yes, sir.

The court ordered a presentence investigation and scheduled sentencing for four weeks later. When the case was called up for sentencing, defense counsel announced to the court that he understood that the state and the court were no longer agreeable to a five-year sentence and requested leave to withdraw the nolo plea if that understanding was correct. The judge responded that he did not agree that the court was limited to a five-year sentence. The judge stated that the agreement bound the court only to the imposition of a sentence which would fall within the guidelines-recommended sentence according to the guidelines scoresheet which would be prepared in the case.

The state and the court were apparently laboring under the impression that the defendant would fall within a three to seven year range under the guidelines. The defendant had withheld certain out-of-state prior convictions and the fact that he was wanted on a parole violation charge from another state. Consequently, when his true criminal history was discovered during the presentence investigation, the sentence range under the guidelines turned out to be seven to twelve years instead of the anticipated three to seven year range. The court sentenced the defendant to ten years.

The trial judge, as he was required to do prior to accepting the defendant’s nolo plea, tried to articulate the negotiations regarding the sentence to be imposed. We believe that a reasonable construction of -the statements made by the trial judge was that the defendant would be sentenced to five years in exchange for waiving his various rights and entering a nolo plea. When, as here, the defendant conceals or fails to disclose information material to the impending sentence, the defendant should not be allowed to enforce the agreement. But neither is the court allowed, under such circumstances, to impose a sentence greater than that which the court said it would impose. Instead, in the absence of prejudice to the state, the defendant must be permitted to withdraw his plea and proceed to trial. See Ben v. State, 440 So.2d 501 (Fla. 2nd DCA 1983); Coleman v. State, 433 So.2d 627 (Fla. 2nd DCA 1983); Reaves v. State, 417 So.2d 1000 (Fla. 4th DCA 1982); cf. Brown v. State, 245 So.2d 41 (Fla.1971); Shaw v. State, 449 So.2d 976 (Fla. 1st DCA 1984); Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974); State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA 1978). The trial court, therefore, erred in denying the defendant’s motion to withdraw the nolo contendere plea.

REVERSED.

SMITH, J., concurs.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent. The trial court did not err in denying Williams’ motion to withdraw his nolo contendere plea.

I agree with the trial court that the record clearly shows that it merely agreed to impose a five-year sentence provided the guidelines mandated such a sentence after receiving the presentence investigation. Otherwise, the trial court only agreed to impose that sentence warranted by the guidelines. This the trial court did.

Also, the record clearly shows that Williams deliberately perpetrated a fraud on the court. He lied about his name. He lied about his prior criminal convictions.

When Williams learned that the presen-tence investigation disclosed that his name was Carter, that he had several prior convictions, and that he was violating his parole at the time of this crime, he admitted that he had lied to the court and moved to' withdraw his plea. But, the cat was out of the bag. Williams, alias Carter, or Carter, alias Williams, was too late with too little. He was estopped by his conduct to withdraw his plea. He had violated the plea bargaining. See dissent in' Reaves v. State, supra, and Shaw v. State, supra.

I would not adhere to the Coleman, supra, and Ben, supra, decisions, which are relied upon by the majority. In my judgment, a defendant who deliberately perpetrates a fraud on the court is not entitled to the special consideration granted him by the majority. I cannot conceive that the law, that justice, would provide such lenient treatment for a liar. In fact, in many instances today the law does not provide such consideration for innocent victims and witnesses. Under such circumstances the State should not be put to the expense of a trial.

I agree with Judge Boardman, who wrote the opinion in Coleman, supra, that the rule followed by the majority rewards criminals who feel they can lie through their attorneys with impunity.

I also agree with Judge Boardman’s suggestion that there are several ways to avoid situations such as this one. First, the trial court should state before the plea is tendered and accepted that sentencing concessions will not be honored at sentencing if material misrepresentations are later found to have been made to induce those concessions. Second, the trial court should require the defendant to testify under oath to the mitigating facts the court is relying on to justify its offer of leniency. If this testimony subsequently proves false, perjury or other appropriate charges could be brought against the defendant.

I would affirm.

      . The state has not claimed prejudice either in the trial court or on appeal.


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

text:
    David Wayne FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 82-1369.
    District Court of Appeal of Florida, Fifth District.
    April 26, 1984.
    Dan R. Warren of Judge & Warren, P.A., Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

David Wayne Foster appeals from his conviction for aggravated battery. The question presented is whether the trial court, upon request, was required to instruct the jury on the lesser included charge of battery.

In State v. Abreau, 363 So.2d 1063 (Fla.1978), the supreme court stated that the failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible. See also State v. Bruns, 429 So.2d 307 (Fla.1983). Battery, as a necessarily lesser included offense of aggravated battery, is one step removed. See Schedule of Lesser Included Offenses, Florida Standard Jury Instructions in Criminal Cases. Therefore, the court committed reversible error in denying the requested instruction.

The state’s argument that under Florida Rule of Criminal Procedure 3.510(b), the court was not required to instruct on battery (“the judge shall not instruct on any lesser included offense as to which there is no evidence”), because all the evidence pointed to an aggravated battery and not a simple battery, is answered in Wheat v. State, 433 So.2d 1290 (Fla. 1st DCA 1983).

REVERSED and REMANDED for new trial.

DAUKSCH, J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

Because of ambiguity in the last sentence in Florida Rule of Criminal Procedure 3.510(b) (“The judge shall not instruct on any lesser included offense as to which there is no evidence.”), the dissent of Judge Thompson in Wheat v. State, 433 So.2d 1290 (Fla. 1st DCA 1983), raises a genuine question as to whether the majority opinion in Wheat is necessarily correct. Just because in legal theory the essential constituent elements of a greater offense necessarily (“inescapably”) include all of the essential constituent elements of every necessarily lesser included offense may not mean, as the majority in Wheat holds, that, as a practical matter, evidence of a greater offense always constitutes evidence of a necessarily lesser included offense. If, by creating a separate, more specific, offense, such as a battery with a deadly weapon (§ 784.045(l)(b), Fla.Stat.), the legislature intended to carve that more specific offense out of a more general offense, such as simple battery (§ 784.03(1), Fla.Stat.) and intended that the two statutes be read in pari materia and to be mutually exclusive so that a person who commits the more specific act is to be found guilty of the more specific offense and not guilty of the more general offense, which would have been applicable in the absence of the more specific offense, then, as a practical matter, the evidence at trial can be contrasted as relating either to the greater more specific offense or to the lesser more general offense, or, perhaps under the facts of a particular case, as sufficient to support either offense. If the intent of the legislature is thus construed, then it could be that, notwithstanding the substantive sameness of the two offenses, evidence that supports the greater more specific offense might not necessarily support the residual or more general offense. For example, if there is no evidence to support a lesser offense, such as a battery without a deadly weapon and the only evidence proves the greater offense, such as a battery with a deadly weapon, perhaps the last sentence in Rule 3.510(b) would apply. If the only evidence is that the defendant committed a battery with a deadly weapon can it really be said that there is any evidence that he committed battery without using a deadly weapon?

Compare the last sentence in Rule 3.510(a) that reads: “The judge shall not instruct the jury if there is no evidence to support such attempt and the only evidence proves a completed offense.” If an attempt to commit an offense is itself an offense it is almost universally agreed that such attempt offense is a lesser included offense of the greater, completed offense. The reasoning in Wheat, if applied to attempts, would result in a conclusion that in any case in which there is sufficient proof of the completed offense to go to the jury, there would “inescapably” be sufficient proof of the attempt to require the attempt offense to go to the jury as a lesser included offense of the greater, completed offense. Thus, a conclusion based on the reasoning in Wheat would be contrary to the explicit language in the last sentence in Rule 3.510(a). The last sentence in Rule 3.510(b) is ambiguous and could be construed in the manner that Rule 3.510(a) more clearly reads in an analogous situation. The last sentence in Rule 3.510(b) should be revised to make its meaning and application so clear and distinct as to remove the ambiguity made apparent by Wheat and this case.


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

text:
    Alan Joseph STINSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1616.
    District Court of Appeal of Florida, Fifth District.
    April 26, 1984.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant contends by this appeal that his conviction should be reversed because the trial court, in accepting his nolo plea, failed to determine whether he acknowledged his guilt or whether he acknowledged that the plea was in his best interest. See Fla.R.Crim.P. 3.170(j), 3.172(d). The record reveals that after hearing his sentence, appellant became unhappy with his plea and asked if he could “take it back.” The trial court responded that it would consider a proper motion, but instead appellant proceeded to file this appeal. We dismiss the appeal.

Appellant’s proper course of action was to file a motion to withdraw in the trial court, pursuant to Florida Rule of Criminal Procedure 3.850. Any adverse ruling on' such motion may then be appealed to this court. See, e.g., Adams v. State, 443 So.2d 436 (Fla. 5th DCA 1984); Skinner v. State, 399 So.2d 1064 (Fla. 5th DCA 1981).

DISMISSED.

DAUKSCH, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

If the issue in this case was the proper procedural mode to allow a defendant to withdraw his nolo contendere plea or guilty plea, I would agree with the majority. However, what is at stake in this case is whether the trial court erred in accepting Stinson’s nolo contendere plea in the first place.

The record shows Stinson did not acknowledge either his guilt, or that the plea was in his best interest. Most critically, Stinson’s testimony at the plea hearing shows he may have had a defense to the charge of uttering a forged bill. He testified he was given the bill by a third person, and did not realize it was counterfeit when he attempted to purchase a soda with it.

Florida Rule of Criminal Procedure 3.172(d) provides:

Before the trial court accepts the guilty or nolo contendere plea, he must determine that the defendant either (1) acknowledges his guilt, or (2) acknowledges that he feels the plea would be in his best interest, while maintaining his innocence.

Failure to comply with rule 3.172(d) may be raised as error on direct appeal. See State v. Kendrick, 336 So.2d 353 (Fla.1976); State v. Lyles, 316 So.2d 277 (Fla.1975); Williams v. State, 316 So.2d 267 (Fla.1975); Hall v. State, 309 So.2d 226 (Fla. 2d DCA 1975). Further, our supreme court has held that accepting a plea where there is an insufficient basis in the record and where an uneountered defense may exist is an error of constitutional magnitude. See Williams. In such a case the district court should remand the matter to the trial court to take further testimony in order to support the plea or reject it. Kendrick; Lyles.


text:
    Gregory Earl JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 83-60.
    District Court of Appeal of Florida, Fifth District.
    April 26, 1984.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

DISMISSED. See Brown v. State, 376 So.2d 382 (Fla.1979); State v. Carr, 438 So.2d 826 (Fla.1983); Cauley v. State, 444 So.2d 964 (Fla. 1st DCA 1984). See also United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980).

DAUKSCH, SHARP and COWART, JJ., concur.