text:
    BARNETT BANK OF PALM BEACH COUNTY, N.A., Appellant, v. REGENCY HIGHLAND CONDOMINIUM ASSOCIATION, INC., Melvin T. Goldberger, et ux., et al., Appellees.
    No. 82-1926.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.
    Rehearing Denied June 26, 1984.

      John B. McCracken and Matthew S. Nu-gent of Jones & Foster, P.A., West Palm Beach, for appellant.
    Robert A. Eisen of Marchbanks & Eisen, P.A., Boca Raton, for appellees.
   DOWNEY, Judge.

Regency Highlánds Condominium Association, Inc., filed an action against a Partnership, Regency Highlands Associates, which developed the condominium, and Barnett Bank of Delray Beach, which provided some of the financing for the condominium. The Bank counterclaimed against the Condominium Association to recover on a note the Association executed in favor of the Partnership, which the Partnership had given to the Bank as collateral for a loan the Partnership obtained from the Bank. From an adverse final judgment the Bank has appealed.

In 1974, the partners executed in favor of the Bank loan guarantees for any loans the Partnership obtained for the condominium. In 1975 the Partnership borrowed $100,000 from the Bank for use in the development of the condominium. A 90-day promissory note dated April 29, 1975, evidenced the loan.

During the next three years the Partnership paid interest and renewed the note. On January 16, 1978, Goldberger, as trustee for the Partnership, assigned to the Bank as collateral for the last renewal note (which had a principal sum of $75,000) a note in the face amount of $148,860.90 payable to the Partnership. The collateral note was a promissory note executed by the Association to repay money advanced by the Partnership to pay for improvements that benefited the Condominium Association. The due date shown on the collateral note was December 31, 1978. Also contained on the face of the note was the legend: “Payment to be made as Capital Contributions are received from each apartment closing.” When the Partnership failed to pay off the $75,000 secured note, i.e. the last renewal note, the Bank sought in a counterclaim against the Association to recover on the collateral note the Partnership had assigned to it as security for the renewal note.

The Association contended in its amended answer to the Bank’s counterclaim that the collateral note did not represent a lawful obligation because it was obtained by fraud and trickery and that the note was not negotiated to the Bank for value and was thus subject to all defenses the Association had as against the Partnership.

At trial the Bank introduced the collateral note in the face amount of $148,860.90 into evidence, together with the testimony of a certified public accountant that as of January 18, 1978, payments from the Association to the Partnership had reduced the balance due on the note to $74,057. All parties agree that no further payments were made on the note after control of the Association passed from the Partnership to the unit owners on January 18, 1978.

In the final judgment under review the trial court found that: (a) the collateral note was not negotiable because it was conditional on its face; (b) if the note were negotiable, the facts and circumstances surrounding the assignment of the note to the Bank showed that the Bank did not take the note in good faith and without notice of the Association’s defenses to it and so could not rise to the status of a holder in due course; and (c) the Bank did not present any credible evidence of the balance due on the note as of the date of its assignment to the Bank, January 16, 1978. The Bank says these findings are erroneous.

The issue raised in the Bank’s first point on appeal is whether the statement on the note that “Payment to be made as Capital Contributions are received from each apartment closing” is a conditional promise to pay. If it is the note is non-negotiable and subject to any defenses the maker may have against the payee thereof.

In order for an instrument to be negotiable it must contain an unconditional promise to pay a sum certain in money. § 673.104(l)(b), Fla.Stat. (1981). However, an otherwise unconditional promise to pay is not made conditional by the fact that the instrument “Indicates a particular account to be debited or any other fund or source from which reimbursement is expected....” § 673.105(l)(f), Fla.Stat. (1981). The law favors negotiability and is reluctant to adopt rules that burden transferability of negotiable paper. 11 Am.Jur.2d, § 398; 10 C.J.S. Bills and Notes, § 14. The terms of the instrument itself determine negotiability. 6 Fla.Jur.2d, Bills and Notes, § 17. Furthermore, the Uniform Commercial Code comment to Section 673.-105, Florida Statutes, makes it clear that the conditional character of a promise to pay is not determined by matters dehors the instrument, but by the instrument itself. In pertinent part the comment states: “so far as negotiability is affected, the conditional character of the promise or order is to be determined by what is expressed in the instrument itself....” 19B, F.S.A. 44. In addition, Section 673.-105(2)(b) suggests that in order for a promise to be conditional the restrictive language must be express because that section provides:

“(2) A promise or order is not unconditional if the instrument:
* * * * *
“(b) States that it is to be paid only out of a particular fund or source except as provided by this section.”

In our view, the legend appearing on the face of the collateral note does not make the promise to pay conditional, since the legend contains no words explicitly limiting payment to a particular fund or source.

Next, the Bank contends the trial court erred in finding that it was not a holder in due course because it did not take the collateral note in good faith and without notice of the Association’s defenses against the Partnership. In support of that finding the Association argues that the evidence demonstrates the Bank acted in bad faith because it purposefully and wilfully remained ignorant of the Association’s claim against the validity of the note.

To be a holder in due course under Section 673.302, Florida Statutes (1981), a holder must take an instrument in good faith and “[wjithout notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.” The nuances of the term “good faith” are pointed up in the Tennessee case of K.T. McConnico v. Third National Bank in Nashville, 499 S.W.2d 874, 881 (Tenn.1973), wherein the court stated:

It is clear that the U.C.C. defines ‘good faith’ as ‘honesty in fact in the conduct or transaction concerned.’ ... A holder need not exercise due care including the observance of reasonable commercial standard in addition to ‘honesty in fact’ to be in good faith. The legislative history of § 3-302(l)(2) indicates that the language ‘including observance of reasonable commercial standards of any business in which the holder may be engaged’ was deleted in the 1956 Recommendations and text. The comments to that section make clear ‘that the doctrine of an objective standard of good faith is not intended to be incorporated in Article 3.’ ... This means that unless the conduct amounts to dishonesty and bad faith, in fact, due course holder status is not lost, in so far as this test is involved.

Accord: Baraban v. Manatee National Bank of Bradenton, 212 So.2d 341 (Fla. 2d DCA 1968). So we see that good faith as used in Section 673.302 does not include due care; rather lack of good faith must be the result of actual, not constructive, knowledge of the wrongdoing tantamount to dishonesty or bad faith. As the McCon-nico court stated:

“ ‘Though he may have been negligent in taking the paper, and omitted precautions which a prudent man would have taken, nevertheless, unless he acted in mala fide, his title according to the settled doctrine, will prevail.’ ” 499 S.W.2d at 882.

Here the Association alleges that the Bank purposefully and wilfully remained ignorant of the true facts surrounding the execution of the collateral note. The Association contends the Bank had notice of the Association’s defenses, pursuant to Section 673.304(2), because the Bank took the collateral note with knowledge that the partners, who were fiduciaries of the Association, negotiated the instrument as security for the partners’ own debt. While it is correct to say that notice that a fiduciary’s negotiation of an instrument as security for his own personal debt gives a holder such notice as to destroy his status as a holder in due course, that statement is irrelevant here because it does not apply to the facts of this case. A typical situation putting a transferee on notice of existing claims exists where the president of a corporation, or a personal representative of an estate, or a trustee of a trust, negotiates a note payable to the corporation, or to the estate or the trust in payment of the president’s or executor’s or trustee’s personal obligation to the bank. In the present case the Partnership negotiated to the Bank, as security for a Partnership obligation, a note issued to the Partnership by the Association. The aim of Section 673.304(2) is to discourage a fiduciary’s using his beneficiary’s money to pay his own debts. Here the Partnership was paying (or securing) a Partnership obligation (its note to the Bank) with a Partnership asset (the Association’s note to the Partnership). We conclude that this activity does not fall within the purview of Section 673.304(2).

In analyzing the question of good faith and the evidence to support it, the Association cites ten alleged facts that it contends show bad faith. They involve such facts as a) the Bank knew the collateral note was issued in return for assets the Partnership purchased for the Association; b) the Bank knew the Partnership controlled the Association when the note was executed; c) the Bank did not follow its own internal operating procedure in accepting transfer of the note; d) the note contained a legend on its face providing that payment was to be made from the proceeds received from unit closings; e) the Bank knew that some payments had been made on the note so that the face amount of the note was not due; f) the Bank had the condominium documents in its file. We have carefully examined the entire list of allegations and hold that they are insufficient, individually or collectively, to support a finding of bad faith. To comment on just a few, departure from internal operating procedures does not show actual knowledge. Industrial Nat. Bank of R.I. v. Leo’s Used Car Ex., Inc., 362 Mass. 797, 291 N.E.2d 603. Knowledge that the note was executed when the Partnership controlled the Association also does not prove the requisite knowledge of wrongdoing. Actually, the dispute as to the propriety of charging the cost of certain assets to the Association did not arise until the Association took over management of the condominium and obtained an audit and it took a lawsuit to resolve the various contentions of the parties. To require the Bank to foresee such things and inquire into the transaction underlying the collateral note would be to totally fetter negotiability. See 2 Anderson, Uniform Commercial Code, § 3-302:11 and cases cited therein.

The following statement in Bankers Trust Co. v. Litton Systems, 599 F.2d 488, 494 (2 Cir.1979), expresses the policy underlying our conclusion:

“[T]he holder in due course is protected not because of his praiseworthy character, but to the end that commercial transactions may be engaged in without elaborate investigation of the process leading up to the contract or instrument and in reliance on the contract rights of one who offers them for sale or to secure a loan. Gilmore, The Commercial Doctrine of Good Faith Purchase, 63 Yale L.J. 1057 (1954);”

Finally, the trial court found that the Bank had failed to present any credible evidence as to the balance of the collateral note when it was introduced in evidence.

However, there is evidence in the record, testimony by Mitchell, a certified public accountant, that the financial statements prepared in the change over audit showed the balance due on the note to be $74,057 as of January 16, 1978. The Association now contends that is not competent evidence to prove the balance due for purposes of this suit. However, aside from that procedural point, we note there is evidence adduced by both sides that payments were made so that credits are due on the original face amount of the note.

The Association’s brief states:

“Both parties readily admitted that the face amount of the note was not the amount outstanding on January 16, 1978, as there had been repayments. The accounts agreed as to the amount of repayments from the issuance of the note to January 16, 1978. The probative issue then was the original principal balance of the Association Note. Here the two accountabts disagreed and the court chose to accept the testimony of the Association’s accountant, J. Alexander Trieste.” (Emphasis added.)

On this point the Bank’s reply brief states:

“There is no debate as to the amount of repayments. All parties agree that, if the note is negotiable, the balance on the promissory note as of January 18, 1978, is $74,057.00- Accordingly, if the note is negotiable and Barnett is a holder in due course, Barnett is entitled to a judgment against the association in the amount of $75,057.00 [sic] plus accrued interest from January 18, 1978.”

The Association’s reference to the original amount of the note is somewhat mystifying since the note speaks for itself and all the proof is that the original principal amount thereof was $148,860.90. The payments made by the Association reduced that amount to $74,057, and that is the amount the trial judge used in his final judgment of August 20, 1982, before deducting the allegedly improper charges the Partnership made against the Association. We express no opinion as to the trial court’s finding concerning the deductions from the principal amount of the note, because that question is not before us.

Accordingly, the judgment is reversed and the cause is remanded with directions to enter judgment for the Bank in the amount of $74,057, together with interest from January 16, 1978.

REVERSED AND REMANDED, with directions.

LETTS and HERSEY, JJ., concur.


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    UNITED PLUMBING AND HEATING, INC., Appellant, v. Melvin T. GOLDBERGER, as Trustee, Appellee.
    No. 82-2059.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.
    Rehearing Denied July 26, 1984.

      Channing E. Brackey of Brackey, Finkel-stein & Dallas, P.A., Port Lauderdale, for appellant.
    Curtis G. Levine of Baskin & Sears, P.A., Boca Raton, for appellee.
   DOWNEY, Judge.

United Plumbing and Heating, Inc., appeals from a final judgment awarding attorney’s fees to appellee Melvin T. Goldber-ger, as Trustee, as a result of a mechanic’s lien foreclosure action.

In March 1976, United filed its amended complaint against Goldberger, as owner, and Safeco Insurance Co., as surety, to foreclose a mechanic’s lien alleging that Goldberger was indebted to it in the sum of $223,091.91 for performance of its plumbing contract in the construction of a fourteen story condominium. By its complaint, United sought the balance due on its contract, costs, and statutory attorney’s fees. By a separate count United claimed the same damages from Safeco.

Goldberger’s answer denied the debt, asserted the posting of a payment bond by Safeco pursuant to Section 713.23, Florida Statutes (1975), and alleged United should be required to pay Goldberger’s attorney’s fees pursuant to Section 713.29. In addition, Goldberger filed a counterclaim asserting entitlement to attorney’s fees pursuant to Section 713.29, Florida Statutes (1975), and the statutory sanctions authorized for wilful exaggeration of a claim for a mechanic’s lien. Furthermore, Goldber-ger alleged United retained possession of certain building materials belonging to Goldberger. United’s answer to the counterclaim and reply to the affirmative defenses generally denied the allegations thereof.

A final judgment was eventually entered wherein the trial court found in favor of United on its complaint against Safeco on the surety bond and awarded United $180,-755.20, together with interest, costs, and attorney’s fees. The judgment further dismissed Goldberger’s counterclaim. Safeco unsuccessfully sought appellate review of that judgment; however, Goldberger was not a party to the appeal.

While the Safeco appeal was pending, Goldberger filed a motion in the trial court for attorney’s fees against United “for Goldberger’s defense of the mechanics lien action filed herein on the grounds Defendant Goldberger, as Trustee for Regency Highland, was the prevailing party ... and is entitled to reasonable attorneys fees in the defense of this action.” The trial court ultimately entered the judgment under review awarding Goldberger $21,000 in attorney’s fees.

United contends that entry of the judgment for Goldberger was error because the judgment that dismissed Goldber-ger’s counterclaim for attorney’s fees was res judicata on the question of Goldber-ger’s right to such a fee. We disagree. There were three claims involved in this suit: United’s claim against Safeco on the payment bond and United’s claim against Goldberger, both alleged in the complaint, and Goldberger’s claim against United alleged in the counterclaim. The prevailing party on each of those claims was entitled to attorney’s fees under Section 713.29 if those claims were properly pleaded. The dismissal of Goldberger’s counterclaim against United, which included a ruling on the count seeking an attorney’s fee against United, adjudicated Goldberger’s right to an attorney’s fee on his counterclaim; it did not adjudicate his right to an attorney’s fee for his defense against United’s claim against him.

The final judgment in favor of United and against Safeco on the claim United made against Safeco and Goldberger showed that United prevailed against Safe-co on its complaint. Although there is no express adjudication in the judgment, Gold-berger prevailed on United's complaint against him because that entire cause of action inhered in the judgment against Sa-feco, and as a matter of law United had no claim against Goldberger because Safeco had posted a payment bond pursuant to Sections 713.02(6) and 713.23, and the trial court’s findings of fact and conclusions of law so reflects. Thus, on United’s claim against him, Goldberger was the prevailing party and entitled to attorney’s fees for the defense thereof. The third claim laid in Goldberger’s counterclaim was apparently dismissed without any adjudication of entitlement to attorney’s fees.

We express no opinion on the reasonableness of the fee awarded because United has not raised that issue.

Accordingly, the judgment appealed from is affirmed.

LETTS and HERSEY, JJ., concur.


author:
GLICKSTEIN, Judge.
      WALDEN, Judge,

text:
    MURPHY WHITE DAIRY, INC., Appellant, v. J.F. SIMMONS and Esther Simmons, Appellees.
    No. 83-595.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.
    Rehearing Denied Aug. 1, 1984.
    Carl M. Collier, Lake Worth, for appellant.
    Harvie S. DuVal of Greenfield & DuVal, North Miami, for appellees.
   GLICKSTEIN, Judge.

This is an appeal from a final judgment in which the trial court concluded appellant was not entitled to the relief it sought, namely, specific performance, because there was no enforceable oral contract for the sale and purchase of the real property involved. We commend the trial judge for verbalizing into the record, at the conclusion of the two-day non-jury trial, not less than eleven pages, reciting his findings of fact. These recitals reflect that he listened carefully to the evidence and judiciously weighed it. Accordingly, we affirm.

ANSTEAD, C.J., concurs.

WALDEN, J., dissents with opinion.

WALDEN, Judge,

dissenting:

I respectfully dissent. My assessment of the pleadings and the proofs reflects that specific performance positively should have been granted because:

1. There was substantial partial performance by the purchaser so as to take this oral contract out of the operation of the statute of frauds in that, among other things:

a. There was payment of $4,900.00 to the sellers upon the purchase price between May, 1972, and October, 1973, in the form of seven checks. On six of the check stubs, it was noted that same were payments on the two homes in question. Mr. Simmons acknowledged such purchase and that the payments were not rent, although he later recanted.
b. Purchaser by payment reduced the outstanding mortgage balance from $3,941.00 to $562.00.
c. Purchaser took exclusive possession and retained it for more than four years.
d. Purchaser made substantial improvements.

2. As to Mrs. Simmons, the wife, the evidence reflects that Mr. Simmons was acting with the knowledge, consent, and acquiescence of his wife in dealing with the purchaser. Either Mr. Simmons was her agent or she is estopped by her conduct from disavowing the transaction.

In my opinion, the denial of specific performance here is inequitable and permits the Simmons to be unjustly enriched at appellant’s expense.

I would reverse and remand with instructions to grant specific performance.


author: OTT, Chief Judge.

text:
    AMERICAN INDEMNITY COMPANY, a Texas corporation, authorized to do business in the State of Florida, Appellant, v. LANCER, VANDROFF & SUDAKOFF, P.A., f/k/a Bernstein, Sherr, Hodges, Lancer &. Vandroff, P.A., Appellee.
    No. 83-1652.
    District Court of Appeal of Florida, Second District.
    May 16, 1984.
    Rehearing Denied July 17, 1984.
    Bob G. Freemon, Jr., of Butler & Bur-nette, Tampa, for appellant.

      James H. Burgess, Jr., of Syprett, Mesh-ad, Resnick & Lieb, P.A., Sarasota, for appellee.
   OTT, Chief Judge.

The lower court rendered final summary judgment in favor of appellee finding that certain files of appellee were “in actual use” when a fire occurred and consequently were covered under a fire insurance policy. We reverse.

Appellant issued the policy of fire insurance to appellee, a law firm. The policy contained a valuable papers endorsement which provided:

4. Protection of Valuable Papers and Records. Insurance under this policy shall apply only while valuable papers and records are contained in the premises described above, it being a condition precedent to any right of recovery hereunder that such valuable papers and records shall be kept in the following described receptables at all times when the premises are not open for business, except while such valuable papers and records are in actual use ...:

Steel Cabinets

The endorsement had a $25,000 limit.

A fire occurred in appellee’s office early one Monday morning before the office had opened for business. Files in attorneys’ and secretaries’ offices and not in steel cabinets were destroyed. Appellant denied coverage for the stated reason that appel-lee’s office was not open for business when the fire occurred nor were the files “in actual use” as required by the policy endorsement.

Appellee brought suit seeking a determination of the issue of liability and of the amount of damages sustained. Appellee focused the damages issue on several destroyed bankruptcy files located in partner Lancer’s office when the fire occurred. Lancer testified at deposition that no one was present or working in the office when the fire took place. As a general practice, active or open files, including the bankruptcy files in question, were not placed in steel cabinets at the end of each work day. Only passive or closed files were placed in steel cabinets. The bankruptcy files in question required daily work and were kept either in Lancer’s office or at his secretary’s desk. The cost of reproducing the bankruptcy files would exceed the $25,000 policy limits.

Ultimately, both parties moved for summary judgment, agreeing that the damages incurred exceeded the policy limit and that there were no genuine issues of material fact. Both motions alleged that the only question to be determined was a question of coverage, that being whether the destroyed files were “in actual use” when the fire started.

The phrase “in actual use” is not defined in the policy. Terms in insurance contracts should be given their natural meaning. Ranger Insurance Co. v. Harrell, 286 So.2d 261 (Fla. 2d DCA 1973). If the terms are clear and unambiguous, they are to be taken and understood in their plain, ordinary, and popular sense. Peninsular Life Insurance Co. v. Rosin, 104 So.2d 792 (Fla. 2d DCA 1958). We find no ambiguity in the phrase “in actual use.” The American Heritage Dictionary defines “actual” as “1. in existence; real; factual. 2. being, existing or acting at the present moment.” (Emphasis added.) The American Heritage Dictionary of the English Language 14 (New College Ed.1978). See also Black’s Law Dictionary 33 (5th Ed.1979), for a similar definition. Applying this definition to the case before us, files that Lancer planned or intended to use when he arrived at work were not “in actual use” when the fire occurred.

Apparently, this is the first time the term “in actual use” has been interpreted in Florida. The parties have cited cases from other jurisdictions: United Services Automobile Association v. United States Fire Insurance Co., 36 Cal.App.3d 765, 111 Cal.Rptr. 595 (1974), and Kaletta v. Merchants Mutual Insurance Co., 31 A.D.2d 689, 295 N.Y.S.2d 850 (1968). The court in United Services utilized a definition of “actual use” similar to the one we adopt herein. However, United Services involved interpretation of an automobile liability policy vis-a-vis a homeowner’s policy, and we do not purport to rely on it. Kaletta is also factually distinguishable.

Appellee did not comply with the condition of the valuable papers endorsement requiring files not in actual use to be placed in a steel cabinet when the office was not open for business. Consequently, the trial court should have entered summary judgment in favor of appellant.

REVERSED and REMANDED for further proceedings not inconsistent with this opinion.

BOARDMAN and RYDER, JJ., concur.


author: PER CURIAM.

text:
    Leonard Paul HEBB, Appellant, v. STATE of Florida, Appellee.
    No. 82-2286.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1984.
    Rehearing Denied June 28, 1984.
    William T. Laswell of William T. Laswell, P.A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Lydia M. Valenti and Richard G. Bartmon, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Dismiss on the authority of Kiriluk v. State, 440 So.2d 520 (Fla. 4th DCA 1983).

LETTS, HERSEY and WALDEN, JJ., concur.


author: MILLER, R., Associate Judge.

text:
    CONGER LIFE INSURANCE COMPANY, Appellant, v. William D. McCAWLEY, et ux., Appellees.
    No. 83-168.
    District Court of Appeal of Florida, Fifth District.
    May 17, 1984.
    Rehearing Denied June 28, 1984.

      Keith J. Hesse, Orlando, for appellant.
    M.E. Cullom, Orlando, for appellees.
   MILLER, R., Associate Judge.

Appellant; Conger Life Insurance Company, appeals a judgment in favor of the Plaintiffs-Appellees, William D. McCawley and Anne McCawley, his wife, entered pursuant to a jury verdict. Plaintiffs’ lawsuit claimed medical benefits under a group policy to which the defendant insurance company raised the defenses that the application contained misrepresentations that were material to the acceptance of the risk and that had the true facts been supplied, the defendant in good faith would not have issued the policy. §§ 627.409(l)(b) & (c), Fla.Stat. (1981). Appellant urges that the trial court erred in denying defendant’s motions for directed verdict and new trial because the verdict was against the manifest weight of the evidence. We affirm.

The policy involved in this case was a group policy offered by the defendant to its own employees under a plan wherein all employees were insurable if they applied for the group policy within the first 121 days of employment. If the application was filed after that period of time, the applicant would need to complete an application which contained questions concerning prior medical treatment. The Senior Vice-President and Medical Director for the defendant testified that the purpose of the limited period of time for applications was to weed out those employees who did not want to obtain the policy until they realized they had a medical problem. The record reflects that such was not the case in this instance.

The record further reflects that the plaintiff had previously been employed by the defendant and had made claims on similar group policies at that time concerning some of the medical history omitted from the application. There was also a controversy in the evidence as to whose fault it was that the application was not filed within 121 days in that the plaintiff claimed the form had been requested on several instances but was not made available to him until the 121 days had expired.

Although there was other testimony by the Senior Vice-President that she would have denied the application had the true history been made known, this Court finds the question of materiality under these facts was for the jury and not the Court, and therefore, the lower court did not err in denying defendant’s motions for directed verdict.

On its face the claim of the appellant that the verdict was contrary to the manifest weight of the evidence appears to have some merit in that the jury found by virtue of a special verdict or interrogatory-type verdict that there were no “misrepresentations, omissions, concealment of facts, or incorrect statements contained in plaintiffs’ application form,” when in fact the plaintiffs throughout the trial admitted the existence of omissions or incorrect statements. The following verdict form was used;

VERDICT
We, the jury, return the following verdict:
1. Were there misrepresentations, omissions, concealment of facts, or incorrect statements contained in Plaintiffs’ application form for group insurance from the Defendant Conger Life Insurance Company?
YES_ NO_
If your answer to question 1 is YES, please answer question 2. If your answer to question 1 is NO, your verdict is for the Plaintiff and you will proceed no further but to date and sign the Verdict. If the answer to question 1 is YES, please answer question No. 2.
2. Were such misrepresentations, omissions, concealment of facts, or incorrect statements fraudulent?
YES_ NO_
3. Were such misrepresentations, omissions, concealment of facts, or incorrect statements material either to the acceptance of the risk, or to the hazard assumed by the Defendant, Conger Life Insurance Company as insurer?
YES_ NO_
If your answer to question 3 is YES, then your verdict is for the Defendant, and you should not proceed further except to date and sign this verdict form and return it to the Courtroom. If your answer to question 3 is NO, please answer question 4.
4. Would the Defendant Conger Life Insurance Company in good faith either not have issued the group insurance policy to the Plaintiffs or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the Defendants as required by the application for the group insurance policy?
YES_ NO_
If your answer to question 4 is YES, then your verdict is for the Defendant, and you should date and sign this verdict form and return it to the Courtroom.
SO SAY WE ALL THIS 10 DAY OF DECEMBER, 1982.

The verdict form and instructions offered by the plaintiffs assumed the existence of the incorrect statements or omissions in the application form. The verdict form used was drafted by the defendant insurance company. The instructions reflect that if the jury answered question one in the negative they returned a verdict for the plaintiff, and that if they answered question two, three or four in the affirmative they would return a verdict for the defendant. The form is silent as to whom they would return a verdict for if they answered all of the last three questions in the negative. This form of verdict was ambiguous in that the jury could believe that the only way to return a verdict for the plaintiff was to answer question one in the negative. Actually, questions one and two were not proper. The existence of the incorrect answers were admitted and there was no claim that they were fraudulent.

Since the form used was that of the defendant it would be unjust to allow the defendant to take advantage, of a verdict form it suggested that infers the only way to return a verdict for the plaintiff would be against the manifest weight of the evidence and therefore guarantee a new trial if they lost. It is apparent from the verdict that the jury meant to return a verdict for the plaintiff and since such a verdict would be appropriate under the evidence of this case, the judgment based upon that verdict must be affirmed.

The appellees’ motion for attorney’s fees is granted and this cause is remanded to the trial court to assess a reasonable fee for appellees’ attorney’s fees for services rendered on appeal.

AFFIRMED AND REMANDED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.


author: FERGUSON, Judge.

text:
    Samuel SHERADSKY, Trustee, Appellant, v. Jesus BASADRE, Egbert E. Gorra, Georgina D. Gorra, his wife, Egbert A. Gorra and Teresita Gorra, his wife, Appellees.
    Nos. 82-442, 83-701.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.
    Rehearing Denied July 16, 1984.

      Steven R. Berger, Samuel Sheradsky, Miami, for appellant.
    Kenneth J. Duckworth, Miami, for appel-lees.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.

       Chief Judge Schwartz did not hear oral argument.

   ON MOTION FOR REHEARING

FERGUSON, Judge.

In the action below, County-Wide Commercial Laundries, Inc. (original plaintiff) obtained a judgment for wrongful eviction against the purchasers of an apartment house, Basadre and the Gorras (defendants/third-party plaintiffs), who in turn obtained a third-party judgment against the seller of the property, Sheradsky (third-party defendant). The novel procedural question presented is whether the third-party defendant may obtain relief from the third-party judgment by successfully challenging the merits of the original plaintiff's case, even though defendants/third-party plaintiffs have not taken an appeal from the original judgment. The substantive question involved is whether a lease agreement which provides for automatic renewal at the end of the period, without more, contemplates a perpetual lease.

Appellant has persuaded us that reversal is required. Our holding on the first question is that, notwithstanding the failure of a defendant/third-party plaintiff to appeal, where there is error in the original judgment a third-party defendant may seek review of that judgment in an attempt to set aside the otherwise error-free third-party judgment. On the second question, we hold in accordance with settled authority that, in the absence of clear intent of the parties to create a lease in perpetuity, a covenant to renew is satisfied by one renewal.

In 1971, appellant Sheradsky purchased the Colony House Apartments. Approximately two years earlier, the prior owners had entered into a purported business lease agreement whereby County-Wide Commercial Laundries, Inc. (now Commercial Laundries, Inc.) installed washing machines on the premises. This agreement, dated November 26, 1969, provided for an initial term of five years, and further provided that:

This lease shall automatically renew under the same terms and conditions as listed above, unless either party, by written notice within 60 days of expiration date, declines to renew said lease.

Sheradsky testified that he was unaware of, and had no record notice of, any specific business lease, and that he assumed there was only a month-to-month tenancy which was terminable at will.

In 1980, Sheradsky agreed to sell the property in question to appellees Basadre and the Gorras. Among the documents presented to the trial court regarding the sale was an affidavit executed by both parties stating that any contract regarding the income from washers and dryers “shall be terminated at the time of closing.” Prior to closing, Sheradsky telephoned a CountyWide officer and told him that the machines had to be removed.

When the new purchasers took possession of the premises, they removed CountyWide’s machines. County-Wide took the position that its five-year lease automatically renewed itself in 1974 and again in 1979, and brought suit against the purchasers Basadre and the Gorras for wrongful eviction under the agreement. The purchasers then sought recovery against Sheradsky under the terms of the aforementioned affidavit. Both Sheradsky (third-party defendant) and Basadre and the Gorras (defendants/third-party plaintiffs) defended against County-Wide’s claim, contending (1) the lease was not notarized and was thus insufficient to bind them, and (2) assuming arguendo the validity of the lease, only one renewal was contemplated and there was no further automatic renewal in 1979. Also, as between Sheradsky and defendants/third-party plaintiffs, it was argued that the latter had the same knowledge and information regarding the existence of the lease as Sheradsky, and that any notice to Sheradsky was notice to them, precluding third-party liability.

The trial court found in favor of plaintiffs and awarded them $6,241.12 in damages for wrongful eviction, plus costs. The court also ruled, without further hearing, in favor of defendants/third-party plaintiffs on the third-party claim. This appeal is taken from the original judgment.

The same procedural question involving the right of a third-party defendant to appeal the merits of the original judgment was addressed by a federal court in the highly persuasive case of Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734 (5th Cir.1980). In Kicklighter, a buyer brought suit against the seller of fingernail restoration kits, seeking damages for injuries suffered from use of the product. The seller filed a third-party complaint against the manufacturer for indemnification. The trial court entered a judgment against the seller on the original complaint and a judgment against the manufacturer on the seller’s suit for indemnification. The seller did not appeal. The manufacturer instead took an appeal, and sought to assert an error in the main case. It was held that a third-party defendant could obtain relief by challenging the merits of the main case. The court conceded that its opinion was without controlling authority but found that a number of federal and state cases supported its conclusion by analogy. Id. at 742 n. 8. Support was also found in Federal Rule of Civil Procedure 14, which gives a third-party defendant the authority to assert any defense which a defendant could have asserted. Id. at 738 n. 1.

The Kicklighter court also relied on sound policy reasons for its holding, including the deterrence of collusion between the plaintiff and defendant where liability will ultimately fall on a third party. The court further narrowed its holding so that a third-party defendant’s successful appeal operates also on behalf of defendant/third-party plaintiff only (1) where the judgment against the third-party defendant is based on liability which is derivative of defendant’s liability, and (2) where the error successfully asserted by third-party defendant is an error in the main case, thus undermining the finding of defendant’s liability. Id. at 744 n. 16.

F & D Property Co. v. Alkire, 385 F.2d 97 (10th Cir.1967) lends support for the proposition of law which Kicklighter extends. The litigation there involved delinquent rental payments under a lease. The lower court had granted summary judgment in favor of plaintiff against both the defendant and third-party defendant. The third-party defendant appealed the original judgment, claiming that he had not agreed to the complete stipulation of facts upon which summary judgment was granted. In holding that the third-party defendant should have responded to the motion for summary judgment and shown that there was a genuine issue for trial, the court cited Federal Rule of Civil Procedure 14, reasoning:

For the purpose of defense against plaintiff’s complaint, a third party defendant is in the law suit as an adverse party to the same extent as the defendant and must act accordingly. This assures a third party defendant complete defense protection in an action where he may be liable for the judgment in favor of the plaintiff. Id. at 100.

See also 3 J. Moore, Moore’s Federal Practice H 14.19 (2d ed. 1984) (although third-party defendant is not a party to plaintiff’s judgment against defendant/third-party plaintiff, “nevertheless, he has such an interest as would entitle him to appeal,” suggesting that appeal may be properly brought in defendant/third-party plaintiff’s name). Accord 6 C. Wright & A. Miller, Federal Practice and Procedure § 1463 and cases cited at n. 61 (1971).

Although there are no Florida cases precisely on point, the same philosophical thread which underlies the Kicklighter decision runs through Florida jurisprudence. In Christiani v. Popovich, 363 So.2d 2 (Fla. 1st DCA 1978), approved, 389 So.2d 1179 (Fla.1980), a very enlightened court permitted a defendant, in a case under the Contribution Among Joint Tortfeasors Act, to appeal a judgment exonerating a code-fendant, the effect of which judgment was to destroy the defendant’s inchoate rights. The court held:

Even the most primitive notions of due process and equal protection of the law forbid denying judgment defendants as a class the right to appeal from judgments which adversely determine their substantial rights against exonerated codefend-ants- Counterclaims against plaintiffs are now commonplace; and, in mul-ti-party actions involving round-robin claims, counterclaims and crossclaims, it would be odd indeed to grant certain parties appeals on issues affecting contribution, while denying such appeals to others, because of party designations in the trial court. Id. at 7.

The Florida Supreme Court denied certio-rari in that case, but wrote a brief opinion which approved the decision of the district court, stating in part:

We choose to follow the view that allows a judgment defendant the right of an appeal from a judgment which adversely affects his or her right against exonerated defendants. This is clearly the fairer and more logical result. To find otherwise places these defendants in a disfavored class and denies the opportunity to recoup their losses from the person or entity actually responsible. 389 So.2d at 1181.

The Kicklighter court relied on Federal Rule of Civil Procedure 14, from which Florida Rule of Civil Procedure 1.180 was adopted verbatim {see Committee Notes to Florida rule). Federal case law which construes a federal rule after which a Florida rule is patterned may be considered in interpreting the Florida rule, Pearlman v. Pearlman, 405 So.2d 764, 766 (Fla. 3d DCA 1981), as it must be assumed that in adopting a rule identical to a federal rule, our supreme court intended to achieve the same results that would obtain under the federal rule. Zuberbuhler v. Division of Administration, 344 So.2d 1304, 1306 (Fla. 2d DCA 1977), cert. denied, 358 So.2d 135 (Fla.1978).

We next consider the merits of the main case. As noted by the Florida Supreme Court in Sisco v. Rotenberg, 104 So.2d 365, 368 (Fla.1958), citing several authorities, leases in perpetuity are universally disfavored, and if there is any uncertainty as to whether the parties intended a perpetual lease, the agreement should be construed so as to provide for only one renewal. Sisco was followed in Hutson v. Knabb, 212 So.2d 362 (Fla. 1st DCA 1968), a case which is factually similar to the present case except that the agreement there was more suggestive of perpetual renewals. In Hutson, the lease was for a period of five years with an option of renewal every five years. The court held that the option clause was insufficient to create a perpetual lease because the lease failed to specify when rent would be due and payable during any renewal period and because the printed portion of the agreement providing for time of payment had been crossed out.

In this case the five-year lease was executed in 1969, and had been renewed in 1974. The trial court found that a second automatic renewal in 1979 was contemplated by terms of the lease. The contested provision did not clearly exhibit an intent to provide for more than one renewal. Applying the just-cited authorities, we find error.

We decide next the effect of the error upon both judgments, the original judgment against the defendant/third-party plaintiff, and the third-party judgment which shifts liability to the third-party defendant.

County-Wide contends that the third-party defendant’s liability is not derivative, thus the right of a third-party defendant whose liability derives from the liability of defendant/third-party plaintiff to appeal the original judgment has no application to this case. It reasons that no derivative liability exists here because its action against the purchasers of the apartment complex was based upon a personal tort, i.e. wrongful eviction, and any potential liability of Sheradsky to the purchasers is for breach of contract, based on Sherad-sky’s affidavit stating that any agreement regarding income from washers and dryers would be terminated prior to closing. While theoretically sound, the contention belies the complaint upon which the case was tried, and the proof presented at trial.

The claim of County-Wide is indeed couched in tort terms as an action for wrongful eviction. The complaint, however, alleges the existence of a lease, compliance with its terms by plaintiff, and breach by the defendants. More importantly, damages were computed as if the action were solely for breach of contract, as the award in this action was based upon loss of profits for the fifty months allegedly remaining in the lease. It follows that Sheradsky’s liability is derivative and that he does have the right to appeal since the original judgment creating his liability necessarily required a determination that there was a valid five-year lease. Because we hold that no five-year lease was in effect, Sheradsky could not have breached any contract with the purchasers and he must be relieved of liability.

The record indicates that CountyWide did have a valid claim for wrongful eviction against defendants/third-party plaintiffs because the purchasers of the apartment complex unlawfully resorted to self-help to remove the machines in violation of Section 83.21, Florida Statutes (1983). The deposition of Egbert E. Gorra, accepted into evidence by the trial court, shows that the purchasers failed to utilize the summary procedure provided in Section 51.011, Florida Statutes (1983) to evict a tenant. Therefore, the trial court correctly determined that County-Wide was wrongfully evicted, a tort not dependent upon the existence of a valid five-year lease.

Where a tenant has been wrongfully evicted by his landlord, he may recover general damages (the difference between market value of the leasehold and the rent payable under it), and, in addition, lost profits if such losses are ascertainable with a reasonable degree of certainty. Young v. Cobbs, 83 So.2d 417 (Fla.1955); Ardell v. Milner, 166 So.2d 714 (Fla. 3d DCA 1964). Lost profits may only be recovered, however, for the remainder of the leasehold term. See Young v. Cobbs, 110 So.2d 651, 653 (Fla.1959) (Young II). Since we previously stated that no valid lease was in effect when the wrongful eviction occurred in August 1980, the tenancy was one at will which ran from month-to-month, as the income from the machines was disbursed to the complex owners monthly. See § 83.01, Fla.Stat. (1983). The damages assessed at trial in the amount of $6,241.12 were erroneously based on lost profits, reduced to present value, for the fifty months found to be remaining on the lease. We accordingly remand this cause to the trial court for a new trial on damages against the defendants on the claim for wrongful eviction based on a tenancy at will.

County-Wide further argues that this court is without jurisdiction over it to set aside the original judgment because it was previously dismissed as a party to this appeal. The dismissal, however, was predicated upon its own motion over appellant’s strenuous objection. Parties who are severed from appellate proceedings willingly are as much bound by the adjudication made on appeal as they would be if not so severed. Triplett v. Trotter, 134 Fla. 784, 184 So. 250 (1938). Finally, although the judgment on the third-party claim was never actually appealed, we hold that the appeal of the original judgment operates, in effect, as an appeal of the third-party judgment as well and that, therefore, we have jurisdiction to reverse both judgments. See Kicklighter, 616 F.2d at 742 & n. 7 and cases cited therein.

The third-party judgment is reversed and the cause remanded with instructions to enter judgment for the third-party defendant. The original judgment is reversed in part and the cause is remanded for a new trial on damages as to the wrongful eviction claim against the original defendants.

      . On rehearing, however, County-Wide was invited to, and did participate in the appeal.


text:
    CONSOLIDATED CAPITAL CORPORATION, Appellant, v. Martin CHERNOFF, C.P.A., Appellee.
    No. 83-1416.
    District Court of Appeal of Florida, Second District.
    May 25, 1984.
    Rehearing Denied July 13, 1984.

      Harriet Lewis of Carey, Dwyer, Cole, Eckhart, Mason & Spring, P.A., Miami, for appellant.
    Debra M. Metzler of Stiles & Allen, P.A., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court which in effect found that the Statute of Frauds, section 725.01, Florida Statutes (1981), did not bar appellee’s claim. There was competent evidence on the basis of which the trial court could find that the obligation of appellant to pay for services rendered by appellee to appellant's subsidiary corporation was a direct, not a collateral, obligation. See Sanders v. Hodges, 109 Fla. 391, 147 So. 571 (1933); Clover Interior Systems, Inc. v. General Development Corp., 357 So.2d 459 (Fla. 2d DCA 1978); Troup Brothers, Inc. v. State of Florida, 135 So.2d 755 (Fla. 2d DCA 1961).

The amount of the judgment was for payment for services rendered by ap-pellee subsequent to appellant’s acquisition of stock in the subsidiary. In a prior federal suit appellant and the corporation which became its subsidiary sued appellee for securities laws violations and fraud which allegedly induced appellant’s acquisition of stock in the subsidiary corporation. We do not conclude that the requisite “logical relationship” existed between appellant’s previously filed federal suit and appellee’s present suit so as to constitute the subject of the present suit a compulsory counterclaim in the federal suit. See Revere Copper & Brass, Inc. v. Aetna Casualty & Surety Co., 426 F.2d 709 (5th Cir.1970). Compare Taussig v. Insurance Company of North America, 301 So.2d 21 (Fla. 2d DCA 1974); Stone v. Pembroke Lakes Trailer Park, Inc., 268 So.2d 400 (Fla. 4th DCA 1972).

AFFIRMED.

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


text:
    William Terry BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 83-2086.
    District Court of Appeal of Florida, Second District.
    May 25, 1984.
    Rehearing Denied June 29, 1984.

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

William Terry Brown was convicted by a jury of DWI manslaughter, section 316.-1931, Florida Statutes (Supp.1982), and vehicular homicide, section 782.071, Florida Statutes (1981). The trial court adjudged defendant guilty of both crimes, but only sentenced him for the conviction of DWI manslaughter. We affirm in part, reverse in part, and remand the case to the trial court.

Because the defendant’s act of driving caused a single death, it was improper to convict him of both DWI manslaughter and vehicular homicide. Platt v. State, 449 So.2d 891 (Fla. 2d DCA 1984); Ubelis v. State, 384 So.2d 1294 (Fla. 2d DCA 1980). Accordingly, we reverse the judgment of guilt of vehicular homicide. The case is remanded to the trial court with instructions to set aside the judgment of guilt on vehicular homicide.

The conviction and sentence for DWI manslaughter is affirmed, the conviction of vehicular homicide is reversed, and the case is remanded with instructions.

OTT, C.J., and DANAHY and LEHAN, JJ., concur.


text:
    Carl Lee HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 83-684.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1984.
    Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was charged with violation of probation by committing three offenses: sexual battery, armed burglary, and grand theft. At the first hearing on the probation violation, the trial judge read the alleged violations and the charges forming the basis thereof to appellant; he informed appellant that at a final hearing the court would determine whether there was a material violation, which could result in a fifteen year sentence and $10,000 fine. Appellant indicated that he understood the allegation of violation, the charges and the possible consequences. The trial judge asked appellant if he admitted or denied the charges, whereupon the assistant public defender on duty interrupted the proceedings and requested appointment of counsel to represent appellant. The judge advised counsel he was “out of order.” Thereupon, the judge restated the question to appellant, who answered that he admitted all three charges. Thereafter, the judge again read out the charges; appellant denied two charges, but admitted to armed burglary. The court then made a finding of a material violation, set a sentencing date, and appointed counsel to represent appellant.

At a subsequent hearing the circuit court entertained argument on appellant’s motion to set aside his admission due to the denial of counsel at the initial hearing. The court set aside the prior finding of a material violation but refused to allow appellant to withdraw his prior admission. Finally, the court made a finding of material violation, revoked the appellant’s probation and sentenced him to a term of fifteen years.

The essential issue here is whether a trial court should require a probationer to admit or deny a charge of probation violation at an initial appearance without first advising him of his right to be represented by counsel and to have one appointed if indigent. The issue is of particular importance because there are a number of cases pending in this court wherein this same procedure was utilized and admissions of violation were accepted without advising the probationer of this right.

Courts have uniformly held that one is entitled to counsel at a sentencing hearing for violation of probation. E.g., Thompson v. State, 413 So.2d 1301, 1302 (Fla. 4th DCA 1982); Woodard v. State, 351 So.2d 1096 (Fla. 3d DCA 1977); Simmons v. State, 298 So.2d 206 (Fla. 2d DCA 1974). Some years ago this court held in Gargan v. State, 217 So.2d 578 (Fla. 4th DCA 1969), that a probationer was also entitled to counsel at a hearing held to determine whether his probation should be revoked. Later, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), indicated that in certain probation proceedings appointed counsel was not necessarily a constitutional requirement. Then in Thompson this court stated that the Gag-non exception to the right to appointed counsel was limited to instances in which the defendant has been convicted of the crime which constituted the probation violation or cases in which the defendant admitted the violation. This court reversed the revocation of probation in Thompson because the defendant had not been convicted of the underlying crime and did not admit the violation.

Of more recent vintage, the Second District Court of Appeal has decided two cases, Smith v. State, 427 So.2d 773 (Fla. 2d DCA 1983), and Mullins v. State, 438 So.2d 908 (Fla. 2d DCA 1983), in which the court held that a probationer is entitled to appointed counsel at a hearing involving revocation of probation. In Mullins the court stated that the probationer “must be advised of his right to counsel prior to or at the beginning of a probation revocation hearing.” Mullins, supra, at 901 (footnote omitted). This requirement seems to make the utmost good sense to us because, as this court stated in Gargan, “[cjertainly the decision to deprive a probationer of his freedom is as critical as the subsequent imposition of sentence.” Gargan, supra, at 579.

We are also aware, however, that in Sanderson v. State, 447 So.2d 374 (Fla. 1st DCA, 1984), the first district upheld an order of revocation notwithstanding its determination that there was no proper waiver of counsel by the probationer. Because the court concluded the probationer was not entitled to appointed counsel under Gagnon, any impropriety in the waiver was not reversible error. More importantly, the court, while noting the position expressed by the second district in Van Cleaf v. State, 328 So.2d 568 (Fla. 2d DCA 1976), stated “[w]e are of the view that adoption of a per se rule for appointed counsel in probation revocation proceedings would be inappropriate.” Sanderson, supra, at 377.

The Supreme Court articulated a similar aversion to a per se rule in Gagnon. Gagnon, supra, 93 S.Ct. at 1762. However, we think that, because of differences between the revocation procedure described in Gag-non and that utilized in Florida, a per se rule does not conflict with or remain at odds with the rationale of that case. The Gagnon court opined that:

The introduction of counsel into a revocation proceeding will alter significantly the nature of the proceeding. If counsel is provided for the probationer or parolee, the State in turn will normally provide its own counsel; lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients’ positions and to contest with vigor all adverse evidence and views. The role of the hearing body itself, aptly described in Morrissey [v. Brewster, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ] as being “predictive and discretionary” as well as factfinding, may become more akin to that of a judge at a trial, and less attuned to the rehabilitative needs of the individual probationer or parolee. In the greater self-consciousness of its quasi-judicial role, the hearing body may be less tolerant of marginal deviant behavior and feel more pressure to reincarcerate than to continue nonpun-itive rehabilitation. Certainly, the deci-sionmaking process will be prolonged, and the financial cost to the State — for appointed counsel, counsel for the State, a longer record, and the possibility of judicial review — will not be insubstantial. (Footnote omitted.) Gagnon, supra, at 1762.

In the proceeding below the state was represented by an assistant state attorney, acting as an advocate on its behalf. The hearing body was a circuit judge acting very much akin to a judge at trial. While the proceeding does not entail all the formalities of a criminal trial, a probationer clearly benefits from having counsel when dealing with procedures such as discovery and m evaluating the competency of any evidence presented by the state. We are particularly impressed with the problem of infringing on a probationer’s protection against self-incrimination where, as below, a revocation hearing is conducted prior to the disposition of criminal charges forming the basis of the affidavit of violation. See State v. Heath, 343 So.2d 13 (Fla.1977), cert. denied, 434 U.S. 893, 98 S.Ct. 269, 54 L.Ed.2d 179 (1977). As to the Supreme Court’s concern with cost, we observe that counsel must be appointed for sentencing in all events and that a per se rule tends to reduce uncertainty and enhance consistency, all of which decreases the possibility of reversible error and appellate review.

In sum, notwithstanding the fact that all probationers do not have a constitutional right to counsel at a probation revocation proceeding (as opposed to a sentencing hearing), it is our view that as a policy matter an entitlement to counsel is essential to ensure reasonable fairness in revocation proceedings. We therefore align ourselves with the conclusion reached by the Second District Court of Appeal and hold that before a trial court can take a plea from a probationer in a proceeding involving a probation violation the probationer must be advised of his right to counsel.

Accordingly, the order of revocation is reversed, the sentence is vacated and the cause is remanded with directions to hold a new revocation proceeding at which appellant is advised of his right to counsel.

REVERSED AND REMANDED, with directions.

BERANEK and HERSEY, JJ., concur.


author: PER CURIAM. ANSTEAD, Chief Judge, GLICKSTEIN, Judge,

text:
    Gary Wayne THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1943.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1984.
    Richard L. Jorandby, Public Defender, and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrew N. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed and remanded for further proceedings in accordance with this court’s recently issued opinion on the same issue of right to counsel at probation revocation proceedings in Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984). We acknowledge that this decision, like Hicks, conflicts with the decision in Sanderson v. State, 447 So.2d 374 (Fla. 1st DCA 1984).

DOWNEY, J., concurs.

ANSTEAD, C.J., specially concurs with opinion.

GLICKSTEIN, J., concurs in part and dissents in part with opinion.

ANSTEAD, Chief Judge,

specially concurring:

I agree that our decision herein is controlled by our recent decision in Hicks. I write separately to note that in addition to the numerous reasons listed by Judge Dow-ney in Hicks for affording a right to counsel at the outset of probation revocation proceedings, in Florida no sentence is imposed upon a defendant until after his probation is revoked. The grant of probation is not considered a sentence under Florida law. This system of probation contrasts with the system prevalent in some jurisdictions and discussed in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), whereby sentence is imposed but its execution withheld pending service of a period of probation. This distinction between imposing sentence and then suspending its execution pending probation, and granting probation subject to the right to impose sentence if the terms of probation are violated, has been utilized as a basis for recognizing an immediate right to counsel at the outset of the probation violation proceedings. See, e.g., In re Wentworth, 564 P.2d 810 (Wash.Ct.App.1977). I think this is a valid basis for adopting a per se rule since otherwise we would have the anomalous situation of a defendant being absolutely entitled to counsel at a sentencing hearing, which would, of course, immediately follow a probation violation hearing, but being denied the right to counsel at the violation hearing itself. In other words, counsel would only be allowed after the critical decision is made on the merits of the complaint made against a defendant as to his compliance with the order of probation. Such a system, in my view, would be not only inefficient, but would also render ' counsel ineffective in his role at sentencing in the vast majority of cases. In short, when sentencing has been deferred, the probation revocation hearing is indeed a critical stage in the continuing criminal trial proceedings that have as their final act the imposition of sentence upon the defendant and the defendant is entitled to counsel at that critical stage. See Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967).

GLICKSTEIN, Judge,

concurring with reversal but dissenting as to the directions on remand and as to the concurring opinion.

I concur in the reversal because it was error for the trial court to proceed as it did. However, I disagree with the analysis and per se rule adopted in Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984), for all of the reasons recited in my concurring and dissenting opinion in Hooper v. State, 452 So.2d 611 (Fla. 4th DCA 1984), which I need not repeat here.

Whatever the Supreme Court of Florida decides, I hope it will resolve the conflicts between the district courts of appeal at an early date because of two important concerns. First, there is an ongoing lack of uniformity which affects a growing number of probationers as well as trial judges, prosecutors and defense counsel who are caught up in the conflict. Second, the taxpayers’ resources are involved. If the Supreme Court adopts the view of the Second District Court of Appeal in Smith v. State, 427 So.2d 773, 774 (Fla. 2d DCA 1983), and of this court in Hicks, then (a) the cases in the First District Court of Appeal including Sanderson v. State, 447 So.2d 374 (Fla. 1st DCA 1984) and any subsequent thereto will have to be reprocessed; and (b) it would seem appropriate for the Legislature as the people’s surrogate, after specific focus and debate, to consider response to any decision not only in a constitutionally permissible manner but, more important, as the people’s spokespersons making statutory expression of our citizens’ social value judgments.

With respect to Judge Anstead’s concurring opinion, I disagree with his analysis for a number of reasons. First, I respectfully suggest, his analysis is incompatible with the primary point repeatedly made in Gagnon; namely:

Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty.

411 U.S. at 782, 93 S.Ct. at 1759-60, 36 L.Ed.2d at 661-62. Again:

[W]e think it a sufficient answer that we deal here, not with the right of an accused to counsel in a criminal prosecution, but with the more limited due process right of one who is a probationer or parolee only because he has been convicted of a crime.

411 U.S. at 789, 93 S.Ct. at 1763, 36 L.Ed.2d at 666.

Second, I believe the concurrence blows out of proportion the fact that in Gagnon the probationer had been sentenced whereas appellant here had not been sentenced. In Gagnon the probationer had been sentenced to fifteen years for armed robbery; but the sentence had been “suspended” and probation imposed for seven years in its place. The court was required to distinguish Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), which had required counsel at sentencing of a probationer in a combined revocation and sentencing hearing because:

counsel is required “at every state of a criminal proceeding where substantial rights of a criminal accused may be affected,” id., at 134, 88 S.Ct. at 257, and ... sentencing is one such stage...

411 U.S. at 781, 93 S.Ct. at 1759, 36 L.Ed.2d at 661.

I suggest it was immaterial to the Supreme Court whether the sentencing came before a probation revocation hearing, during same or after. At sentencing, whenever it is held, counsel is required. The court expressly minimized the chronological order in which the sentencing and the probation violation hearing occurred, by going on to say in the next paragraph

Of greater relevance is our decision last Term in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

411 U.S. at 781, 93 S.Ct. at 1759, 36 L.Ed.2d at 661. The reference is to the holding that parole revocation is not a part of a criminal prosecution. Id. Third, I believe the concurrence is an effort to shore up the panel’s analysis in Hicks.

Unfortunately, when this state’s highest court reviews Hicks, it may regard it as the mouse that roared, as I feel it regarded the majority’s decision in Jones v. Hoffman, 272 So.2d 529 (Fla. 4th DCA), certified questions answered, 280 So.2d 431 (Fla.1973). There, a judge and associate judge, speaking for this court, took on the Florida Supreme Court. In Hicks and the present case, this court, in my view, has taken on the Florida Legislature while disregarding the United States Supreme Court’s construction of a constitutional requirement.