text:
    STATE of Florida, Appellant, v. Bobby BULLOCK, Appellee.
    No. 84-538.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Jim Smith, Atty. Gen. and Charles M. Fahlbusch, Asst. Atty. Gen., for appellant.
    Sharpstein & Sharpstein and Richard Sharpstein, Miami, for appellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order under review, which suppresses certain physical evidence seized from the defendant, is reversed upon a holding that: (1) the defendant, contrary to the trial court’s conclusion, was not under arrest at the time he and the narcotics officer herein went into the lobby area of the Amtrak station, but, at worst, was merely being temporarily detained by the police, see Immigration and Naturalization Service v. Delgado, — U.S. —, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Login v. State, 394 So.2d 183 (Fla. 3d DCA 1981), (2) this temporary detention was constitutionally reasonable under the Fourth Amendment to the United States Constitution as it was based on a reasonable suspicion, to wit: (a) the defendant was traveling under an assumed name, (b) the defendant denied that the luggage in question was his, although he had been previously observed by the police arriving at the station in a taxicab in possession of the luggage, (c) the defendant claimed that someone else present nearby owned the luggage, although no one else was in the lobby area of the station, and (d) the defendant was extremely nervous during his consensual encounter with the police, see Florida v. Rodriguez, — U.S. —, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984), (3) the temporary seizure of the defendant’s luggage for a narcotics “dog sniff” was reasonable under the Fourth Amendment to the United States Constitution because it was based on a reasonable suspicion, to wit: the stated factors in subsection 2 above, see State v. Taylor, 446 So.2d 1147 (Fla. 3d DCA 1984); State v. Bankston, 435 So.2d 269 (Fla. 3d DCA 1983), cert. denied, — U.S.—, 104 S.Ct. 1273, 79 L.Ed.2d 678 (1984); Mata v. State, 380 So.2d 1157 (Fla. 3d DCA), pet. for review denied, 389 So.2d 1112 (Fla.1980), (4) the “dog sniff” of the defendant’s luggage took place almost immediately, resulting in a positive alert by the dog on the luggage which gave the police probable cause to arrest the defendant at that point, State v. Toro, 422 So.2d 1084 (Fla. 3d DCA 1982); State v. Foster, 390 So.2d 469 (Fla. 3d DCA 1980), and (5) the defendant thereafter gave a voluntary consent to the police to search his luggage which, contrary to the trial court’s conclusion, was untainted by any prior illegal arrest of the defendant, thereby rendering the subsequent warrant-less search of the defendant’s luggage constitutionally reasonable under the Fourth Amendment to the United States Constitution, see Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

The order under review is reversed and the cause is remanded to the trial court for further proceedings.


source: Caselaw Access Project

author: FERGUSON, Judge.

license: Public Domain

text:
    SAFECO TITLE INSURANCE COMPANY, a California corporation, Appellant, v. ATTORNEYS’ TITLE SERVICES, INC., a Florida corporation, Appellee.
    No. 84-1071.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Rehearing Denied Feb. 6,1985.

      Tatum & Tatum & Thomas Tatum (Fort Lauderdale), for appellant.
    Krause & Reinhard and Ronald E. Dobel-stein, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

This is an appeal from a final order dismissing appellant’s third party complaint against appellee/third party defendant, Attorneys’ Title Services, Inc. (ATS), without leave to amend.

Appellant, Safeco Title Insurance Company (Safeco), issued a mortgagee title insurance policy through its agent, Bedzow and Korn, P.A. (Bedzow), to Robert Lewison, who funded a second mortgage loan to Marvin J. and Sue Carol Rappaport, husband and wife. Before the policy was issued, Bedzow requested and received from ATS a certified title information search for the Rappaport property. The information was provided pursuant to an Attorney’s Title Information Data System (ATIDS) contract between Bedzow and ATS. ATS installed in Bedzow’s office a computer system consisting of an information display monitor and printer. In response to Bed-zow’s request, two computer printouts were provided disclosing that a Notice of Federal Tax Lien was filed on April 26, 1978, in the name of Sue Carol Rappaport. No reference was made to a lien in the name of Marvin J. Rappaport.

In June, 1983, the Rappaports defaulted and Lewison obtained title to the property via a mortgage foreclosure action. Shortly thereafter, the Internal Revenue Service notified Lewison that a tax lien in the amount of $23,000 had been recorded in the public records against Marvin J. and Sue Carol Rappaport on April 26, 1978, prior to Lewison’s mortgage loan. Lewison demanded that Bedzow or Safeco clear the lien, or provide funds for Lewison to clear it. Neither Safeco nor Bedzow satisfied Lewison’s claim.

In December, 1983, Lewison brought an action against Bedzow and Safeco alleging breach of the insurance contract and negligence in failing to disclose the prior tax lien. Both Bedzow and Safeco filed third party complaints against ATS seeking to be indemnified for any damages awarded to Lewison in his suit against them. Safeco claimed privity with ATS based upon its status as the intended third party beneficiary of the ATIDS contract between Bed-zow and ATS. Safeco alleged that ATS knew that the certified title information provided to Bedzow was for the benefit of Safeco, as a third party title insurer, and would be relied upon in insuring title. ATS filed motions to dismiss the third party complaints of Bedzow and Safeco. The motion as to Bedzow was denied. This appeal is from the order granting ATS’s motion to dismiss as to Safeco.

Safeco relies on First American Title Insurance Co. v. First Title Service Company of the Florida Keys, Inc., 457 So.2d 467 (Fla.1984), contending that the lower court erred in dismissing its complaint because a title insurer may bring an action to recover damages against a negligent abstracter. ATS counters that, according to First American, the liability of an abstracter to a title insurer not in privity with the abstracter is limited to situations where the insurer is both an intended beneficiary and a subrogee who has satisfied a claim brought against its insured. ATS argues that because Safeco did not plead a subro-gation claim, First American is inapplicable. Furthermore, ATS alleges that it makes a difference that the title information was furnished by computerized excerpt rather than by delivery of an entire abstract of title.

Although the trial judge correctly applied longstanding Florida law in dismissing appellant’s third party complaint for failure to state a cause of action, we reverse on authority of First American, decided after the order was entered. That opinion expresses “new principles of Florida law” and modifies the rule of Sickler v. Indian River Abstract & Guaranty Co., 142 Fla. 528, 195 So. 195 (1940), which limited the liability of an abstracter to those in privity with the abstracter.

Subrogation, as a doctrine, was necessarily discussed in First American, however briefly, because the title insurer had already indemnified the insured for the loss incurred due to the title defect. But a status as an intended beneficiary is not necessary where the insurer first satisfies a claim brought against its insured, so long as all the equitable prerequisites to subro-gation are satisfied. See Rebozo v. Royal Indemnity Co., 369 So.2d 644 (Fla.3d DCA), cert. denied, 379 So.2d 209 (Fla. 1979) (doctrine of subrogation is applied where one who is not a volunteer pays the debt of another who is primarily liable, and where its application is necessary to bring about equitable adjustment of a claim). Contrary to the appellee’s interpretation of First American, the case did not pivot on subrogation.

The supreme court in First American extended an abstracter’s liability to purchasers whose reliance on the abstract was known or should have been known to the abstracter, and to others having a relationship in the transaction through the purchaser, such as mortgagees, tenants and title insurers, even where the title insurer has not reimbursed the mortgagee-insured for loss incurred due to a negligently prepared abstract. Adopting the law of several other jurisdictions, the court announced that protection is now afforded to those whom the abstracter knew or should have known would rely on the abstract regardless of privity. We agree with Safeco that it is a protected party under the rule of law adopted in First American.

Appellee’s second argument, based on a distinction between a computerized system of providing title information and the delivery of a complete abstract of title, raises a question which goes to the merits—whether the insurer should have relied upon the computer-furnished abstract information. The entirely different question presented by this appeal is the same one that was before the court in First American—whether the third party complaint, assuming the truth of the allegations, states a cause of action. We hold that it does.

Reversed and remanded for further proceedings.


author: PER CURIAM.

text:
    Matthew BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 84-2198.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.

      Matthew Brown, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and JORGENSON, JJ.
   PER CURIAM.

We reverse the order denying the defendant’s motion filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. In Villery v. Florida Parole & Probation Commission, 396 So.2d 1107, 1112 (Fla. 1981), the supreme court held:

In modifying probation or in revoking probation and sentencing the probationer, credit must be given for time spent incarcerated pursuant to a split sentence probation order.

Contrary to the state’s contention, credit must be given on both counts for time served since the time being served was running concurrently on both counts. Cf. Shepard v. State, 459 So.2d 460 (Fla. 3d DCA 1984) {pre-sentence jail time can be allocated to two or more concurrent sentences in any manner the trial court sees fit). Accordingly, this cause is remanded to the trial court with directions to modify the sentences to reflect the appropriate credit for time served.


author: DOWNEY, Judge.

text:
    L. LURIA & SON, INC., a Florida corporation, Appellant, v. HONEYWELL, INC., a foreign corporation, Appellee.
    No. 83-1505.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1984.

      Jan Atlas and Robin Corwin Campbell of Capp, Reinstein, Kopelowitz & Atlas, P.A., Fort Lauderdale, for appellant.
    Shelley H. Leinicke of Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, and James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

L. Luria & Son, Inc., plaintiff in an action seeking damages resulting from a burglary of its premises while those premises had a burglar alarm system installed and monitored by the defendant, Honeywell, Inc., pursuant to a contract between the parties, appeals from a final judgment that dismissed Luria’s amended complaint and entered judgment for Honeywell.

The amended complaint alleged the parties entered into 1) a written contract for installing and monitoring a burglar alarm system and 2) a subsequent verbal contract that Honeywell would advise Luria “of an interruption in telephone lines [that were an integral part of the system] which would affect the operation of the System” and that Honeywell breached the agreements. The amended complaint contained various theories for recovery: breach of contract, breach of express warranties, gross negligence, fraud and gross negligence and intentional tort growing out of a subsequent oral contract. Attached to the complaint was a copy of the written contract between the parties that contained the following exculpatory and limitation of liability clauses:

It is understood and agreed by the parties hereto that Contractor is not an insurer and that insurance, if any, covering personal injury and property loss or damage on Subscriber’s premises shall be obtained by the Subscriber; that the Contractor is being paid for the installation and maintenance of a system designed to reduce certain risks of loss and that the amounts being charged by the Contractor are not sufficient to guarantee that no loss will occur; that the Contractor is not assuming responsibility for any losses which may occur even if due to Contractor’s negligent performance or failure to perform any obligation under this Agreement. THE CONTRACTOR DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, THAT THE SYSTEM OR SERVICE SUPPLIED MAY NOT BE COMPROMISED, OR THAT THE SYSTEM OR SERVICES WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS INTENDED.
Since it is impractical and extremely difficult to fix actual damages which may arise due to the faulty operation of the system or failure of services provided, if, notwithstanding the above provisions, there should arise any liability on the part of the Contractor, such liability shall be limtied to an amount equal to one half the annual service charge provided herein or $250, whichever is greater. This sum shall be complete and exclusive and shall be paid and received as liquidated damages and not as a penalty. In the event that the Subscriber wishes to increase the maximum amount of such liquidated damages, Subscriber may, as a matter of right, obtain from Contractor higher limits by paying an additional amount under a graduated scale of rates relating to the higher limits of liquidated damages.

The trial judge dismissed the amended complaint based upon this exculpatory clause on authority of L. Luria & Son, Inc. v. Alarmtec Intern., 384 So.2d 947 (Fla. 4th DCA 1980), and Ace Formal Wear v. Baker Protective Service, 416 So.2d 8 (Fla. 3d DCA 1982).

The enforceability of exculpatory clauses like the one in the present case have been upheld in burglar alarm cases in a number of Florida decisions. L. Luria & Son, Inc. v. Alarmtec Intern., supra; Mankap Enterprises v. Wells Fargo Alarm Serv., 427 So.2d 332 (Fla. 3d DCA 1983); Ace Formal Wear v. Baker Protective Service, 416 So.2d 8 (Fla. 3d DCA 1982); Continental Video Corp. v. Honeywell, Inc., 422 So.2d 35 (FLa. 3d DCA 1982). Following that respectable line of authority in this case, we affirm the judgment appealed from as regards all of the counts in appellant’s amended complaint except Count Four, which alleges fraud.

Fraud is an intentional tort and thus not subject to the cathartic effect of the exculpatory clauses found in contracts such as the one in the present case. Zuckerman-Vernon Corp. v. Rosen, 361 So.2d 804 (Fla. 4th DCA 1978); Mankap Enterprises v. Wells Fargo Alarm Serv., supra. Therefore, although the allegations of the fraud count are not models of clarity, we believe Luria is alleging that in the event of a malfunction in the alarm system or telephone lines Honeywell promised Luria that Honeywell would notify Luria and the police, that the promise was made to induce appellant to enter into the contract, and that at the time Honeywell made the prom-, ise to Luria Honeywell never intended to fulfill it. Such a promise is actionable. 37 Am.Jur.2d, Fraud and Deceit, § 64. Upon remand it would be appropriate for the trial court to allow Luria to amend the allegations of said count to more clearly state such a claim.

Accordingly, the judgment appealed from is affirmed in all respects except as to Count Four, which alleges fraud. As to that count the judgment is reversed and remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; and remanded with directions.

HURLEY and WALDEN, JJ., concur.


author: GEIGER, DWIGHT L„ Associate Judge.

text:
    David N. BRUSHINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 83-2398.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1984.

      Richard L. Jorandby, Public Defender and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane and Carolyn V. McCann, Asst. Attys. Gen., West Palm Beach, for appellee.
   GEIGER, DWIGHT L„ Associate Judge.

This is an appeal from an order revoking probation and subsequent sentence.

Appellant raises two points. He first contends that the trial court erred in finding that he knowingly, intelligently, and voluntarily entered into a guilty plea based on a plea agreement for probation. The agreement included appellant’s making restitution payments within a six month period as a condition of probation and provided that appellant waived the requirement that the state establish his financial ability to make restitution in order to prove violation of probation for failure to make restitution payments. Appellant further contends that such an agreement is unenforceable as against public policy, and thus that even if he failed to make the agreed restitution, it was error to revoke his probation. Appellant does not contest that the required restitution was not made, nor does he contend that failure to make restitution was not a sufficient reason to revoke his probation.

We deal with the second point first and note that this court has already spoken to a similar issue in the case of Doherty v. State, 448 So.2d 624 (Fla. 4th DCA 1984). Based on the reasoning of Doherty we conclude that a person charged with a crime can legally enter into a plea bargain agreement with the state that he receive probation rather than be imprisoned on conditions that he make restitution within a set period of time and that he waive his right to be imprisoned for failure to pay a debt if he fails to make restitution as he has agreed, whether or not the state can prove his financial ability to make restitution. Such an agreement is not void as against public policy and is enforceable.

We next deal with whether appellant sufficiently understood and legally entered into the agreement. In this case the record clearly supports the trial court’s conclusion of a knowing, intelligent, and voluntary entry of guilty plea and waiver by defendant of his right against imprisonment for failure to pay restitution. At the time appellant was placed on probation, the trial judge carefully talked with him and explained to him what would be expected of him concerning payment of restitution and the time period within which restitution payments were to be made. The trial judge also specifically explained to appellant that he- was waiving his constitutional right against imprisonment for failure to pay a debt in agreeing to the special provision that the state would not be required to prove an ability to pay restitution in order to prove a violation of probation. The record shows that he understood. The trial judge explained this a second time when appellant pleaded guilty to violation of probation and agreed to the same waiver if the court would reinstate his probation and extend the time for payment of the restitution. The trial court granted appellant’s request and reinstated probation and extended the time for making restitution payments an additional year. It was only after this additional period of time had passed and appellant had not made the agreed payments that the probation was revoked.

Clearly the condition to pay restitution was not court imposed without agreement by appellant. The trial judge assured himself that appellant knew what he was doing when he made the agreement and gave appellant more than a reasonable opportunity to comply with his self-imposed duty. The appellant cannot now legally complain of the consequences of his failure to uphold his end of the bargain.

No error is demonstrated. The order of revocation of probation and sentence appealed are AFFIRMED.

ANSTEAD, C.J., and DELL, J., concur.


text:
    Nelson BAILEY, Petitioner, v. STATE of Florida, Respondent.
    No. 84-145.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1984.
    Charles W. Musgrove, Lake Worth, for petitioner.
    Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for respondent.
   DOWNEY, Judge.

Bailey seeks review of an order holding him in contempt of court and fining him $500 for failure to appear at the scheduled criminal trial of his client, William A. August.

It appears that Bailey’s client, August, was scheduled for trial on November 17, 1983. Bailey advised the court that he had business out of town on the sixteenth, seventeenth and eighteenth of November. However, the court advised him that criminal trials take precedence over other business and placed the case on one hour call. On the fifteenth, the court notified Bailey his case was number four and the court could not release him from the trial date. In any event, Bailey learned on Wednesday, November 16, that his case would start on the next day, Thursday the seventeenth. Bailey was scheduled to leave for New York so he conferred with James Bon-figlio, a lawyer who shared office space with him, who agreed to handle the case the following day. Bonfiglio was a lawyer with experience in criminal practice and, although the charges were quite serious, both he and Bailey felt this case was not too complex to handle on such short notice. Bailey’s secretary notified the client, August, that Bailey would be out of town but that Mr. Bonfiglio would handle the case. Thereafter, Bonfiglio spent several hours conferring with August, and August appeared perfectly content with that arrangement until the next morning at trial when he stated he would prefer not to go to trial without Bailey. The trial judge advised August that he had a right to have Bailey handle his trial and continued the case. Thereupon, the trial judge issued a rule to show cause why Bailey should not be held in contempt of court for failure to attend the trial. At the hearing thereon Bailey testified that he intended no disrespect for the court and that he had made arrangements for his case to be adequately handled if it came to trial in his absence. While the charges were serious, both he and Bonfigilio felt the case was not so complex that the latter could not handle it on short notice. Finally, Bailey was of the impression that August had no objections to this manner of disposition.

Bailey contends, and we agree, that this record fails to demonstrate any intent to disobey the court or in any way to degrade, embarrass or hinder the due administration of justice. Bailey did not act in a willfully stubborn manner, he did not ignore the trial date, nor was there any evidence of a pattern of such conduct. The standards for determining contemptuous conduct in this setting are set forth in Thompson v. State, 427 So.2d 341 (Fla. 1st DCA 1983), and the cases cited therein.

We do not reverse this case lightly as we are most sympathetic to the conscientious efforts of trial judges to expedite their dockets which is often a difficult and frustrating exercise. However, “the power to punish for criminal contempt should be exercised cautiously and sparingly.” Ray v. State, 352 So.2d 110 (Fla. 1st DCA 1977). We are constrained to hold contempt of court was not shown by this record.

Accordingly, we reverse the order. appealed from.

GLICKSTEIN and WALDEN, JJ., concur.


author: BARKETT, Judge.

text:
    ESTATE OF Marie MORTON, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a foreign corporation, and Edward Grant, as Agent and Employee of United States Fidelity & Guaranty Company, and individually, Appellees.
    No. 84-615.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1984.
    Charles E. Pettit of Butler & Pettit, P.A., Fort Lauderdale, for appellant.
    Marilyn Martin and Marcia E. Levine of Fazio, Dawson & DiSalvo, Fort Lauderdale, for appellees.
   BARKETT, Judge.

This appeal results from the dismissal with prejudice of two counts of a complaint; count I entitled “intentional infliction of emotional distress,” and count IV entitled “tort of outrage.”

The parties agree that the separate counts should constitute but one cause of action, outrageous conduct causing severe emotional distress, and therefore one count should be dismissed. The parties further agree that the trial court erred in dismissing these counts with prejudice thereby failing to give the appellant the right to amend. Appellant, however, contends that the allegations in either count I or count IV sufficiently state a cause of action.

This court has recognized that a cause of action can exist for outrageous conduct causing severe emotional distress arising from an insurer’s failure to pay benefits. Metropolitan Life Insurance Company v. McCarson, 429 So.2d 1287 (Fla. 4th DCA 1983). See also Dominguez v. Equitable Life Assurance Society of the United States, 438 So.2d 58 (Fla. 3d DCA 1983). It is clear that the appellant can amend to properly state such a cause of action in this case in light of the allegations of both count I and count IV as well as the remaining counts and the documents attached to the complaint.

Accordingly, the appellant should be given the opportunity to combine and clarify the allegations of the complaint as they relate to this cause of action by way of amendment. We therefore reverse and remand with directions to the trial court to proceed in accordance with this opinion.

REVERSED AND REMANDED.

ANSTEAD, C.J., and GLICKSTEIN, J„ concur.


text:
    AMERICAN PETROFINA MARKETING, INC., Appellant, v. Herbert WEINER d/b/a Ray’s Tires Co., and Herbert Weiner, individually, Appellees.
    No. 84-1089.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1984.
    W. Frank Greenleaf of Welbaum, Zook, Jones & Williams, Miami, for appellant.

      Neil G. Frank of Frank & Flaster, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

The issue in this appeal is whether the trial court erred in denying the secured creditor’s claim for a deficiency judgment against the debtor. We reverse and remand, on the authority of Bank of Oklahoma v. Little Judy Industries, Inc., 387 So.2d 1002 (Fla. 3d DCA 1980).

The secured creditor sold the collateral in what was subsequently determined to be a commercially unreasonable manner, in violation of section 679.504(3), Florida Statutes (1983). As a result, the trial court concluded that the creditor had forfeited any claim to a deficiency judgment. We disagree and, in so holding, certify a conflict with the First District’s decision in Florida First National Bank at Pensacola v. Martin, 449 So.2d 861 (Fla. 1st DCA 1984). Parenthetically, we note that the issue of adequacy of notice of the sale was not raised, and, therefore, is not before us. Moreover, we think there is a sufficient difference in the policies underlying the notice of sale requirement, and the requirement that the sale be conducted in a commercially reasonable manner, to justify a different result where the latter requirement is not met. If a sale is found to be commercially unreasonable, the debtor’s interest can be adequately protected by ordering a hearing, and requiring the creditor to show that the prices obtained were reasonable in light of the facts and circumstances existing at the time of sale. An adjustment can then be made for any discrepancy which has occurred.

This result protects the debtor’s interest and avoids subjecting the creditor to draconian consequences should the manner of sale fall short of that required by section 679.504(3), Florida Statutes (1983). It is also consistent with the spirit of the Uniform Commercial Code, which, as one of its principal features, is designed to liberalize commercial transactions and move away from highly technical requirements. See White & Summers, Uniform Commercial Code, § 4 (2d Ed. 1980); see also, Poti Holding Co., Inc., v. Piggot, 15 Mass.App. 275, 444 N.E.2d 1311, cert. denied, 388 Mass. 1105, 448 N.E.2d 766 (1983) and cases cited therein.

We therefore reverse and remand this case, and instruct the trial court to conduct a hearing to determine the reasonableness of the prices obtained, and award the creditor accordingly, subject to any set-off deemed necessary.

HURLEY, DELL and WALDEN, JJ., concur.


author: SCHOONOVER, Judge.

text:
    Anne G. STINNETT, as Personal Representative of the Estate of Thomas E. Walker, deceased, Appellant, v. LONGI, INC., a Florida corporation, Appellee.
    No. 84-236.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1984.

      Marjorie A. Schmoyer of Wilson, Wilson & Jaffer, P.A., Sarasota, for appellant.
    Claire L. Hamner of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellee.
   SCHOONOVER, Judge.

Appellant, Anne G. Stinnett, as personal representative of the estate of Thomas E. Walker, appeals a final summary judgment entered in favor of the appellee, Longi, Inc. We reverse.

Thomas E. Walker was electrocuted while repairing a refrigeration unit at the Longboat Key Hilton on Longboat Key, Florida. The hotel was owned and operated by appellee.

As a result of Mr. Walker’s death, appellant instituted a negligence action against appellee and three other defendants.

Appellee’s motion for summary judgment was granted upon the ground that the evidence and pleadings on file failed to show a violation or omission of any duty owed by appellee to the decedent. After appellee’s motion was orally granted by the trial court, one of the other defendants scheduled the deposition of a witness in New Hampshire. Appellee, who was still a party to the suit because the final order had not yet been signed, was not given notice of this deposition. Based upon evidence obtained at the taking of the deposition, appellant filed a timely motion for rehearing of the summary judgment pursuant to Florida Rule of Civil Procedure 1.530. The deposition was filed in the action.

Appellant’s mojtion alleged that evidence discovered through the deposition would probably change the result of the summary judgment if a hearing were to be granted, that the evidence had been discovered subsequent to the original hearing, and that the evidence could not have been discovered earlier by the exercise of due diligence.

The trial court refused to consider appellant’s motion on the merits and denied the motion solely on the basis that appellee had not been served with notice of the deposition. This appeal timely followed.

The trial court did not err in refusing to consider the document as a deposition because Florida Rule of Civil Procedure 1.330(a) provides that upon the hearing of a motion, a deposition may only be used against a party if that party was given reasonable notice or was present or represented at the taking of the deposition. We hold, however, that rule 1.330(a) does not prevent depositions that fail to meet its requirements from being used at hearings or proceedings where evidence in affidavit form is admissible. See Tormo v. Yormark, 398 F.Supp. 1159 (D.N.J.1975); United States v. Fox, 211 F.Supp. 25 (E.D. La.1962).

In Hoover v. Switlik Parachute Co., 663 F.2d 964 (9th Cir.1981), in considering the use of depositions that had been taken pri- or to the time the party being moved against for summary judgment had been joined in the action, the court held that although the documents considered by the trial court were inadmissible as depositions because the party did not have an opportunity to cross-examine the deponents, consideration by the court of the documents as affidavits was not error. Similarly, Florida Rules of Civil Procedure 1.510 governing motions for summary judgment and 1.530 governing motions for new trial and rehearing allow the trial court to consider affidavits in conjunction with those motions.

If the testimony given at the deposition in the case sub judice complied with Florida Rule of Civil Procedure 1.510(e) in that it was made on the basis of personal knowledge, contained facts that would be admissible into evidence, and showed that the deponent was competent to testify to the matters contained in the deposition, the court should have considered the deposition as the equivalent of an affidavit. Having the contents of the deposition put into affidavit form and resworn to by the deponent would have served no useful purpose.

This court has previously approved the practice of filing a deposition in lieu of an affidavit in opposition to a motion for summary judgment. See, e.g., Gufford v. Morrison Trucking Co., 377 So.2d 253 (Fla. 2d DCA 1979) (appellant filed a witness’ deposition, taken in a prior suit to which appel-lees were not parties, in lieu of an affidavit in opposition to appellees’ motion for summary judgment).

We agree with appellee’s contention that in the absence of any compelling reason or exigent circumstances that might excuse the tardiness of an affidavit and/or deposition, a trial court does not abuse its discretion in refusing to consider late affidavits or depositions filed with a motion for rehearing. See Lennertz v. Dorsey, 421 So.2d 820 (Fla. 4th DCA 1982). In the case sub judice, however, the court did not deny the use of the deposition because of timeliness, but instead, denied its use for the sole reason that appellee did not receive notice of the deposition.

Rather than examining the contents of the document to determine whether a material fact precluding summary judgment exists and, pursuant to Anderson v. Aamco Transmissions of Brevard, Inc., 265 So.2d 5 (Fla.1972), reversing upon finding one, we choose to reverse and remand to the trial court for a full consideration of appellant’s motion pursuant to Kash N’ Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So.2d 786 (Fla. 2d DCA 1969). The trial court should first determine whether the deposition meets the require-merits of an affidavit pursuant to rule 1.510(e) and, if so, whether compelling reasons or exigent circumstances should excuse appellant’s delay in discovering the evidence contained in the affidavit. If these questions are both answered in the affirmative, the court should then consider the motion on the grounds set forth therein.

Reversed and remanded for proceedings consistent herewith.

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


text:
    Margaret L. PERKINS, a/k/a Margaret L. McKay, Appellant, v. Kenneth I. McKAY, III, Appellee.
    No. 83-2577.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1984.
    Richard Benjamin Wilkes and Nicholas J. Hennessy, Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, P.A., Tampa, for appellant.
    Gordon D. McCutcheon, III, Tampa, for appellee.
   PER CURIAM.

This is an appeal by Margaret Perkins, formerly Margaret McKay (hereinafter “mother”), from a final order granting the amended petition of Kenneth I. McKay, III (hereinafter “father”), for modification of the final judgment of dissolution of marriage. We reverse.

The parties were married in 1972 and separated in 1979. During that period of time two children were born of the marriage. The children now live with their mother and her husband near Tampa, Florida.

In July 1979 the father moved to Louisiana. He visited the children periodically by driving to Tampa. On September 1, 1979, while the father still lived in Louisiana, he and the mother entered into a separation and property settlement agreement (hereinafter “agreement”). In April 1980, six months prior to the entry of the final decree of dissolution, the father moved to Montana where he now resides with his new wife. The marriage to Margaret McKay was dissolved on October 9, 1980. The agreement was made a part of the final judgment. Pursuant to the agreement, the mother was awarded full custody of the minor children and the father was permitted reasonable visitation rights.

On April 6, 1988, the father filed an amended petition for modification of the final judgment of dissolution of marriage seeking an order allowing the children to visit him in Montana for a period of at least six weeks during the summer and two weeks every other Christmas, the travel expenses to be paid by the father. The father alleged that the requested modification was based on the father’s relocation to Montana from Florida. There was no allegation that the requested modification was in the children’s best interest.

Two hearings were held concerning the children’s visitation, after which the lower court found that “subsequent to the entry of the final judgment a substantial change of circumstances had occurred in that the former husband has moved to the State of Montana, thereby precluding said husband from maintaining normal visitation with the minor children.” He also found that “it is in the best interest that the minor children have continual contact with their natural father.” The court then awarded the father six weeks visitation with the two children in the summer and two weeks during Christmas every other year. The mother appeals this order.

It is true that in Florida “reasonable visitation” ordinarily does not include the children’s removal from the state by the noncustodial parent for visitation purposes. If a court order is couched in this general language, the proper method for expansion of visitation rights is to petition, as the father did here, for modification of the final judgment. Kranis v. Kranis, 313 So.2d 135 (Fla. 2d DCA 1975). However, when considering petitions for modification of visitation arrangements, the trial court does not have the same degree of discretion as it does in entering the original divorce decree. Teta v. Teta, 297 So.2d 642 (Fla. 1st DCA 1974). The party seeking the modification has the burden of proving that there has been a substantial and material change in the circumstances of one or both of the parties since the entry of the divorce decree and that the best interests of the child or children will be promoted by the change. Taylor v. Taylor, 376 So.2d 27 (Fla. 2d DCA 1979); see Teta v. Teta.

In this case, the trial court erred in finding that the father had undergone a substantial change in circumstances by moving to Montana after the entry of the final judgment. The record clearly indicates that the father’s move to Montana was made six months before final judgment was entered. In fact, the father had lived out of state at the time the agreement was signed. Thus, the father did not meet his burden of showing a material change of circumstances justifying a modification of the final judgment.

Moreover, the father did not allege in his amended petition for modification nor did he specifically discuss at hearing that the proposed modification was in his children’s best interests. Therefore, the requisite second showing was not made.

Accordingly, we reverse the trial court’s findings and vacate the order based upon those findings.

REVERSED.

RYDER, C.J., and BOARDMAN and SCHOONOVER, JJ., concur.


author: LEHAN, Judge.

text:
    Sarah H. WILLIAMS and Robert D. Harrington, Jr., Appellants, v. Mary Ann H. HARRINGTON, Appellee.
    No. 84-384.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1984.

      Joe B. Cox and John F. Spindler of Cummings & Lockwood, Naples, for appellants.
    Thomas E. Maloney of Maloney & Crane, Chartered, Naples, for appellee.
   LEHAN, Judge.

In this proceeding involving a surviving spouse’s petition to determine her elective share of her deceased husband’s estate pursuant to § 732.201, Florida Statutes (1981), the residuary beneficiaries appeal a judgment granting relief requested by the surviving spouse. We reverse and remand.

We conclude that the trial court, by applying perceived equitable concepts to adjust the number of shares of corporate stock to be distributed to the surviving spouse and by adjusting the surviving spouse’s elective share to compensate her for certain taxes incurred by her as a result of early, partial distributions, departed from the governing statutes. Also, we conclude that the trial court erred in accelerating the remainder interest in a trust after the trial court extinguished the surviving spouse’s lifetime interest therein when the matter of that acceleration had been neither pleaded nor tried by implied consent.

As their first point on appeal, the residuary beneficiaries contend o that the trial court erred in permitting the personal representative to use the same “blockage discount” on corporate stock to value that stock for two different purposes. The trial court used that same discount to value the net probate estate as of the date of decedent’s death for the purpose of determining the amount of the surviving spouse’s -30% elective share and to value that stock at the times of later distributions thereof for the purpose of determining the number of shares necessary to constitute that amount. The residuary beneficiaries contend that the evidence showed that the true blockage discounts at the times of those distributions were less than that at the date of death. They contend that the applicable statute provides for valuing distributions at the times of those distributions and therefore requires the use of lesser discounts at those times. We agree.

After decedent’s will was admitted to probate, the surviving spouse chose to take a 30% elective share pursuant to section 732.201. A substantial portion of the estate consists of a large number of shares of corporate stock. That stock was thinly traded on the New York Stock Exchange. The sale of large blocks of stock of the size held by the estate would depress the sale price below the quoted market price. Therefore, to determine the fair market value of the stock the personal representative reduced the stock market price by a “blockage discount.” A blockage discount is a reduction in the price or value of stock when the stock is to be sold in a block that is larger than that which can be sold at existing quoted prices because of a small average trading volume of the stock on a stock market.

The personal representative determined that $5.00 was the appropriate blockage discount to use in determining the fair market value of the stock on the date of decedent’s death. The personal representative used that $5.00 discount to calculate, as of the date of death, the value of the entire estate and of the 30% elective share.

The personal representative also used that same $5.00 discount to determine the value of shares distributed on several later dates to the surviving spouse in satisfaction of her elective share. The residuary beneficiaries, however, argued in the trial court and argue on appeal that smaller blockage discounts were applicable to the shares when distributed to the surviving spouse because the volume of trading in the corporate shares on the stock market had increased on the dates of distribution and because the distributions consisted of smaller blocks of stock than those on the basis of which the $5.00 discount was arrived at.

The personal representative testified that, for reasons of equity, the same $5.00 discount was used for all calculations. The personal representative also testified, however, that if the shares distributed to the surviving spouse had been sold on the market on the dates of the various distributions, the actual blockage discount would have been less than $5.00 and would have ranged from approximately $1.00 to $3.00 depending on the date. Of course, the smaller the discount the higher the value of the shares. A smaller discount at date of distribution would result in a higher share value and a lower number of shares to be distributed to constitute a given total value of the distributions.

In the amended final judgment, the trial court found that “the use of one blockage discount to value the net probate estate and a different blockage discount to value the same stock at time of distribution is not proper.” We do not agree. The evidence showed that a blockage discount is a key factor bearing upon the actual market value of stock at a given time. If, as here, the application of a lower blockage discount results in a value per share which is higher on the date of distribution than on the date of death, this would mean that fewer shares would be distributed to satisfy the 30% elective share based upon the value of the elective share at date of death pursuant to section 732.207, Florida Statutes (1983). We use the terms “lower,” “higher,” and “fewer” in comparison with values of shares and numbers of shares distributed if the distribution had occurred on the date of death. The evidence indicates that the foregoing state of affairs is simply a result of changing stock market trading volumes and values.

The surviving spouse argues on appeal that the trial court might have applied the $5.00 discount to the distributed stock on the basis that the court actually had determined that a $5.00 discount accurately reflected market values at the time of the distributions. However, as noted above, the trial court explicitly found that the use of different discounts would not be proper. Nor have we been directed to, or found, evidentiary support which would fully sustain the surviving spouse’s argument.

Accordingly, on remand we direct that the distributions to the surviving spouse be recalculated based upon the fair market values of the stock on the dates of distribution using appropriate blockage discounts on those dates shown by the evidence.

We need not address the well argued and arguable equitable contentions of the surviving spouse in support of the trial court’s approval of the use at the dates of distribution of the same blockage discount which was applicable at date of death. The legislature has said in section 732.214, Florida Statutes (1983) that the values of assets distributed to satisfy that elective share shall be as of the date of distribution. Arguments that those values should be otherwise determined should be addressed to the legislature.

The surviving spouse argues that if we determine on this appeal that there was error in the amount of the blockage discount applied to the distributions to the surviving spouse, we should on remand provide that the trial court also reconsider the blockage discount applied to calculate the net probate estate — and therefore the value of the elective share — at date of death. We cannot agree. There appears to be competent substantial evidence to support the $5.00 blockage discount applied to the valuation at date of death. The only reason for the surviving spouse’s request that, if there was to be remand, the trial court also revisit the date of death blockage discount appears to be to give the surviving spouse the opportunity to argue before the trial court essentially what she has argued and we have ruled upon on appeal: that an adjustment should be made in the respective values at date of death and date of distribution for equitable reasons, notwithstanding what we perceive to be the mandates of section 732.207 and 732.214.

The second point on appeal concerns an adjustment to the elective share which was made by the trial court to compensate the surviving spouse for certain income tax she paid.

During the second fiscal year of the estate, the surviving spouse requested and received distributions of stock and cash. No distributions were made during that year to the residuary beneficiaries. For federal income tax purposes, distributions from an estate during a fiscal year are taxed as income to the distributee up to the total amount of income earned that year by the estate’s assets, even if the distributions were actually of estate assets and the earned income was retained by the estate, as in this case. See 26 U.S.C. §§ 661 and 662. The result here was that the surviving spouse became liable for taxes on that portion of her distributions equal to the income earned by the estate, even though the estate retained the income.

The surviving spouse asked the trial court to increase her share of the estate to compensate her for the foregoing tax she paid on income retained by the estate. The trial court agreed and ordered that she would receive an “equitable adjustment” equal to the benefit accruing to the estate and the residuary beneficiaries by reason of her payment of the tax.

The residuary beneficiaries contend on appeal that the equitable adjustment was improper. They make two arguments in support of their contention. First, they argue that section 732.207 Florida Statutes (1981), provides that the spouse’s elective share will be 30% of the estate and neither that section nor any section of the Florida Probate Code provides for the type of adjustment contended for here. Second, the beneficiaries argue that, although a personal representative has a duty not to make distributions which cause an unequal burden among the beneficiaries, there was no such duty in this case because the surviving spouse, being fully aware and informed of the tax consequences, requested the personal representative to make the distributions which caused the foregoing tax consequences.

We agree with the residuary beneficiaries. Again, we need not address in more detail the nature of the arguable equitable contentions. The legislature could have included a provision in the statutes authorizing this type of tax adjustment to the elective share, but it did not. The legislature did make provisions for other types of tax consequences relative to elective shares, see section 732.215, but, we must assume, chose not to provide for the type of adjustment at issue here. Arguments of the type made by the surviving spouse in this regard should be addressed to the legislature.

Also, the basis for a tax adjustment such as that contended for in this case is the asserted duty of a personal representative to act with impartiality toward all beneficiaries. However, the personal representative in this case did not make a solely discretionary distribution to the surviving spouse; the distribution was made at her request. The record supports the residuary beneficiaries’ argument that the surviving spouse acted in that regard with professional advice. We cannot conclude under the facts of this case that the personal representative violated a duty to the surviving spouse to change the effect of the action she herself requested.

The trial court relied upon Cooper v. Parkinson, 186 So.2d 844 (Fla. 1st DCA 1966), in ordering the equitable adjustment. In Cooper, a widow elected to take a dower share of the estate, which was one-third of all estate assets and income. The widow and the executor entered into an agreement preserving the widow’s “right to claim compensation from the Executor because ... she will be required to pay Federal income taxes on moneys already distributed to her by the Executor.” 186 So.2d at 845. The widow sued to recover for the taxes she had paid on the estate’s share of income. The trial court denied the requested relief. The appellate court reversed.

We are not persuaded that we should apply Cooper to produce a result contrary to that which we reach in this case. First, in Cooper, as contrasted with the instant case, the First District Court of Appeal specifically noted that the surviving spouse had “by the mentioned agreement preserved her right to pursue her claim for reimbursement from the estate.” Id. at 846. Also, Cooper concerned dower, not a surviving spouse’s elective share as in the case at hand. But, to the extent that the Cooper rationale may seem to call for an equitable adjustment in a situation like that before us, we would disagree with that rationale. Again, this is a matter for the legislature which has in some detail addressed the subject at hand.

We do not feel it is necessary to undertake here a detailed analysis of the many facets of the subject of so-called “equitable adjustments” as is done, for example in Carrico and Bondurant, Equitable Adjustments: A Survey and Analysis of Precedents and Practice, 36 Tax Lawyer No. 3, 545 (1983), one of the various writings on the subject to which we have been cited. We recognize that generally, in the final analysis, the conflicting policy considerations for and against employment of equitable adjustments in cases of this kind might be thought of, as the foregoing article does, as placing one on “the horns of the basic ... dilemma: to maximize fairness to beneficiaries, should equitable adjustments be made whenever possible, or to maximize simplicity in administration, should they be avoided in the absence of gross inequities?” Id. at 547. Suffice it to say that with respect to the issue before us under the facts of this case we consider this area of the law to be primarily legislative in nature. The result we reach follows not only a literal interpretation of the relevant statutes but also follows what we perceive to be the plain meaning of the Florida legislature in enacting statutes in an area which is within its constitutional authority to legislate.

For us to embark upon the task— and to, in effect, call upon trial courts in like situations to embark upon the task — of adjusting the statutory scheme to accommodate perceived equities would, we believe, not be a proper judicial role. See Price v. Florida National Bank of Miami, 419 So.2d 389 (Fla. 3d DCA 1982) where the Third District Court of Appeal followed the literal and plain meaning of sections 732.-207 and 732.214 and held that a surviving spouse was not entitled to interest accruing to his elective share prior to the date of the order of distribution of that share, notwithstanding a substantial lapse of time between the date of decedent’s death and the date of that order of distribution. We do not believe it is the proper role of the courts in a case like this to undertake to engraft additional components onto a legislative scheme which must be assumed to have been enacted advisedly. The provisions of sections 661 and 662 of the Internal Revenue Code were in effect at the time the Florida legislature enacted the relevant provisions of the Florida Probate Code, including the above referenced provisions of section 732.215 as to other types of tax consequences regarding elective shares.

The third point on appeal relates to a Massachusetts charitable “unitrust” created by the deceased of which the surviving spouse had been made a lifetime beneficiary. On the basis that her elective share was fulfilled by assets other than her interest in the unitrust, the trial court extinguished her interest in the unitrust in the amended final judgment. The amended final judgment also provides that the charitable remainder interests in the unitrust were therefore accelerated.

The residuary beneficiaries’ position apparently is that they were adversely affected by that ruling in that, as a result of the acceleration, the charitable remainder-men then would receive income from that trust which the residuary beneficiaries could have otherwise claimed during the lifetime of the surviving spouse. The residuary beneficiaries contend on appeal, among other things, that the court erred in its ruling because the issue of the acceleration of the remainder interests was neither raised in the petition nor tried in the trial court. We agree. The surviving spouse concedes that she has no financial interest in this issue and does not argue it. On remand the trial court should strike that portion of the amended final judgment which provides that “the remainder interest in the unitrust is accelerated.”

Reversed and remanded for proceedings consistent herewith.

RYDER, C.J., and SCHOONOVER, J., concur.


text:
    Jack CUTTER, Appellant, v. STATE of Florida, Appellee.
    No. 84-745.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1984.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

Appellant, Jack Cutter, appeals from a judgment and sentence entered pursuant to a jury verdict finding him guilty of possession of burglary tools. We affirm.

Appellant was charged with possession of burglary tools and petit theft. He presented a witness on his behalf at trial, but did not testify himself. The jury found him guilty of possession of burglary tools and not guilty of petit theft. After appellant was adjudicated and sentenced to five years in state prison, he filed a timely notice of appeal.

The sole issue on appeal is whether the trial court must establish on the record that a criminal defendant has validly waived his right to testify.

The record before us does not indicate that appellant was personally questioned by the trial court concerning his decision not to testify. It does indicate, however, that neither the appellant nor his attorney objected when the jury was instructed concerning appellant’s election not to be a witness in the case.

Appellant does not contend that his attorney failed to advise him of his right to testify. Relying on People v. Curtis, 681 P.2d 504 (Colo.1984), he contends that the trial court failed to establish in open court on the record that he voluntarily, knowingly, and intelligently waived his right to testify. Appellee, the State of Florida, relying on State v. Albright, 96 Wis.2d 122, 291 N.W.2d 487 (1980), cert. denied, 449 U.S. 957, 101 S.Ct. 367, 66 L.Ed.2d 223 (1980), asserts that an accused who disagrees with his attorney’s advice not to testify must raise his objection on the record at trial. If the accused does not attempt to take the stand, he waives his right to testify. We agree with appellee’s assertion and, accordingly, with the holding of the Supreme Court of Wisconsin in State v. Albright.

The right to testify in criminal prosecutions is a mandatory, organic rule of procedure and a long-accepted constitutional principle. Hall v. Oakley, 409 So.2d 93 (Fla. 1st DCA 1982); Art. I, § 16, Fla. Const.; see also, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); United States v. Ives, 504 F.2d 935 (9th Cir.1974); Moore v. State, 276 So.2d 504 (Fla. 4th DCA 1973). Unlike the right to forego assistance of counsel and certain other rights, however, the right to testify is not so fundamental and personal that it can only be waived by the defendant; it may be waived by the defendant’s attorney in the absence of express disapproval on the record by the defendant during the pretrial or trial proceedings. State v. Albright.

We, accordingly, hold that an accused waives his right to testify, if, after having the right explained to him by counsel, he acquiesces in his attorney’s advice not to testify. If he does not agree with his attorney, he must make his objection known to the court during trial, not as an afterthought. If he properly objects, the court must allow him to testify. State v. Albright; People v. Knox, 588 Ill.App.3d 761, 16 Ill.Dec. 182, 374 N.E.2d 957 (1978); contra People v. Curtis, 681 P.2d 504 (Colo.1984).

AFFIRMED.

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


author: MILLS, Judge.

text:
    UNITED CHEMICALS, INC., a Pennsylvania corporation, Appellant/Cross Appellee, v. Roy WELCH, d/b/a Welch Lift Track, Appellee/Cross Appellant.
    No. AV-350.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1984.
    Ronald A. Mowrey and David J. Russ of Ronald A. Mowrey, P.A., Tallahassee, for appellant/cross appellee.
    Marion D. Lamb, Jr., Guyte P. McCord, III, and Gregory D. Smith of MacFarlane, Ferguson, Allison & Kelly, Tallahassee, for appellee/cross appellant.
   MILLS, Judge.

United Chemicals, Inc. (United) appeals from a final judgment entered against it for breach of long term heavy equipment leases. Welch cross appeals challenging the damage award. We affirm.

Welch, doing business as Welch Lift Truck, filed suit against United alleging United breached two 60-month forklift leases. A nonjury trial ensued. The trial court found United entered into two 60-month leases with Welch, complied with the terms of the leases for 18 and 16 months respectively, and then breached the leases by refusing to pay the monthly rent. Welch was awarded $13,420 damages.

United contends it never entered into or ratified the leases. Alternatively, it contends it only entered into month-to-month leases. In addition, both Welch and United argue the damage award was improper even if United breached long term leases. We find United ratified the leases.

The forklifts were delivered to United’s Gulf States chemical repackaging plant at Lloyd. One forklift was delivered prior to 25 June 1981, the other on 10 August 1981. At the time of each delivery, a United employee signed documents Welch contends are lease agreements. United contends these documents are nothing more than delivery receipts. Whatever the case, the documents specified a monthly rent. The first specified $735 monthly. The second specified $675 monthly.

Following delivery, Welch submitted monthly invoices to the Gulf States plant for the rents. United paid the rents in the regular course of business until November 1982 when it notified Welch by letter it considered the leases void and would no longer pay the rents. Welch testified that prior to the Fall of 1982, he was never led to believe there was no binding contract. He testified that on four separate occasions he forwarded copies of what he considered lease agreements to United.

Moran, a stockholder and officer of United who had the authority to enter into long term heavy equipment leases for the corporation, testified he first became aware that Welch considered the forklifts on 60-month lease to United in the late summer of 1981. Moran testified he directed a United employee, Walsh, to make it clear to Welch that United considered the forklifts leased on a month-to-month basis. Moran said Walsh told him in the Fall of 1981 he had been unable to resolve the matter. At that point, according to Moran, Moran called Welch’s office and informed the woman who answered the telephone that United considered the forklifts leased month-to-month. Welch, however, said he never received such a message from Moran or from anyone at United. Moran admitted he had no more contact with the Welch’s office until November 1982.

Although the testimony was conflicting on the issue of whether United took steps before November 1982 to inform Welch it did not believe it had entered into 60-month leases, we assume the trial court as factfinder resolved the conflict in a manner consistent with the result reached. Taking this view, Moran, despite being fully informed of the controversy, continued to allow United to rent the forklifts from Welch without informing Welch of United’s position and knowing Welch was under the assumption that 60-month leases were in effect. This is tantamount to ratification of the leases because, simply stated, the doctrine of ratification precludes the principal from accepting the benefits of an agent’s actions while simultaneously disclaiming the agent’s authority to act. C.Q. Farms, Inc. v. Cargill Inc., 363 So.2d 379 (Fla. 1st DCA 1978).

United argues that the damage award was excessive. Its primary contention is that a lessor of personal property may not recover the property upon default and collect all sums due under the lease absent a specific contractual provision to that effect.

Yet, in BVA Credit Corp. v. Fisher, 369 So.2d 606 at 609 (Fla. 1st DCA 1978), this Court stated:

[T]he principles of law applicable to mitigation of damages permits a lessor of personal property to re-lease the property or sell the property after default for the account of the lessee and recover the deficiency from the lessee whether or not the lease expressly so provides ....

Unlike the case before us, BVA also involved the question of whether under applicable provisions of the Uniform Commercial Code a re-leasing and subsequent sale of the leased property constituted an election between inconsistent remedies. But from this distinction we cannot say, as United apparently would have us say, that the language quoted above is limited to leases governed by the U.C.C. We therefore reject this argument concerning the measure of damages on authority of BVA.

In addition, United challenges the damage award on the basis that Welch made no effort to re-lease the forklifts for United’s benefit. See, Wolf v. Buchman, 425 So.2d 182 (Fla. 3d DCA 1983).

There was evidence presented at trial from which the trial court could find Welch made a good faith effort to re-lease the forklifts for United’s benefit. Although the opposite conclusion may have also been drawn from the evidence presented, we will not usurp the trial court’s fact-finding role.

Welch argues that the award was inadequate. He contends the damages should have been the sum of all unpaid rental payments due for the duration of the leases less any amounts recovered by the lessor in mitigation. This formula, however, ignores the uncontroverted fact that Welch was responsible for maintenance on the forklifts during the lease periods. Given the evidence of Welch’s monthly maintenance expenses prior to the breach, the trial court could have arrived at an average monthly maintenance expense which, when multiplied by the number of months remaining on the leases, would provide an appropriate figure to be subtracted from the damage award calculated according to Welch’s formulation.

Considering the evidence of Welch’s expenses under the terms of the leases, we cannot say the amount awarded is either excessive or inadequate.

AFFIRMED.

ERVIN, C.J., and ZEHMER, J., concur.


text:
    Danny Lee COCHRAN, Appellant, v. STATE of Florida, Appellee.
    No. AY-49.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1984.

      Michael E. Allen, Public Defender, Charlene V. Edwards, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Henri C. Cawthon, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Cochran appeals from a five-year prison sentence imposed on him following revocation of his probation. He contends the sentence should be vacated because the record does not show that in selecting sentencing pursuant to the sentencing guidelines he knowingly and intelligently waived his right to parole eligibility. Next, he contends the trial court failed to give clear and convincing reasons for departing from the recommended range. We affirm.

Cochran’s first contention is. the same one rejected by this Court in Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984), where we held an affirmative selection is all that is required. We reject this contention on authority of Moore, but certify the following question to the Supreme Court as one of great public importance:

When a defendant who committed a crime before 1 October 1983 affirmatively selects sentencing pursuant to the sentencing guidelines, must the record show the defendant knowingly and intelligently waived the right to parole eligibility?

We also reject Cochran’s second contention.

While on five years probation imposed by a Florida court for making or uttering a false prescription, Cochran committed eight crimes in South Carolina. An amended affidavit of probation violation recited these crimes charging they were violations of the probation condition that Cochran live and remain at liberty without violating any law. At the revocation hearing, Cochran admitted the accuracy of the allegations in the probation violation affidavit. The court found Cochran violated his probation as outlined in the affidavit and revoked probation.

At the sentencing hearing, defense counsel announced Cochran was affirmatively selecting guideline sentencing. The trial court then announced it was going outside the guidelines and sentenced Cochran to five years in prison, the maximum sentence. The trial court stated:

The court has gone outside the sentencing guidelines inasmuch as the court deems it to be sufficient aggravating circumstances when one violates conditions of probation and can’t live within the law.
Therefore, the sentencing guidelines have not been adhered to by the court over objection of the defendant.
The comments made by the court will be transcribed by the court reporter and made part of the judgment and sentence with reference to going outside the sentencing guidelines.

Violation of a substantive condition of probation can be a clear and convincing reason for departing from the guidelines. See Bogan v. State, 454 So.2d 686 (Fla. 1st DCA 1984); Carter v. State, 454 So.2d 739 (Fla. 5th DCA 1984); and Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984).

AFFIRMED.

ERVIN, C.J., and ZEHMER, J., concur.


author: THOMPSON, Judge.

text:
    SEMINOLE COUNTY BOARD OF COUNTY COMMISSIONERS and Gallagher-Bassett Insurance Service, Appellants, v. James CHAPLIN, Appellee.
    No. AZ-146.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1984.
    Thomas A. Moore of Pitts, Eubanks, Hannah, Hilyard & Marsee, Orlando, for appellants.
    Michael M. O’Brien of Akerman, Senter-fitt & Eidson, Orlando, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal an order awarding catastrophic loss benefits. We reverse and remand.

The deputy commissioner (deputy) found claimant to be entitled to catastrophic loss benefits pursuant to § 440.15(2)(b), Fla. Stat. He went on to explain:

I make this finding principally based on the demeanor and testimony of the Claimant as he testified before me. I was able to observe that the Claimant had marked and severe limitations of his right arm. Based on his testimony and my careful observations it is obvious that Claimant has lost the use of his right arm.
Based on my review of the medical records composite, it is uncontradicted that the Claimant did sustain some organic damage to his central nervous system. I specifically take note that Mr. Chaplin had a right C-6 Hemilaminecto-my and Diskectomy with Foraminotomy performed. Dr. St. Louis indicated in his report of December 15 that the Claimant exhibited weakness and sensory changes consimerate [sic] with the surgery. I also make this finding based on my observations of the Claimant as he testified before me which conclusively demonstrated organic damage to the Claimant’s nervous system.

Whether the loss of use of an arm is the result of organic damage to the nervous system is a question of fact for the deputy. Hernandez v. Equipment Co. of America, 452 So.2d 85 (Fla. 1st DCA 1984). Before the deputy makes any such finding, however, the claimant must demonstrate (1) the total loss of use of an arm (2) because of organic damage to the nervous system. Atlantic Plastering, Inc. v. O’Hara, 454 So.2d 743 (Fla. 1st DCA 1984). The deputy’s findings fall short of satisfying these requirements.

The final order states that claimant was found to have “lost the use of his right arm” and that the existence of organic damage to the claimant’s nervous system was “conclusively demonstrated.” However, the deputy failed to find that claimant had sustained a total loss of use as required by § 440.15(2)(b). If a total loss of use is found, then the deputy must also find that such loss is because of organic damage to the claimant’s nervous system. Hernandez v. Equipment Co. of America, 452 So.2d at 86.

A Deputy’s determination that a claimant has sustained loss of use of his arm because of organic damage to the nervous system cannot be based merely on his observations and the claimant’s demeanor or testimony alone. Loss of use of the arm because of organic damage to the nervous system must be established by medical evidence.

Accordingly, the award of catastrophic loss benefits is reversed and the case is remanded to the deputy for a determination of (1) whether the claimant has sustained a total loss of use of his right arm, and if so, (2) whether such loss is because of organic damage to the nervous system.

Reversed and remanded for further proceedings consistent with this opinion.

BOOTH and SMITH, JJ., concur.


author: BARFIELD, Judge.

text:
    Alvin Leroy MILLS, Appellant, v. Brenda Jane MILLS, Appellee.
    No. AZ-290.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1984.
    David H. Levin, Levin, Warfield, Middle-brooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellant.
    James F. McKenzie, McKenzie and Associates, Pensacola, for appellee.
   BARFIELD, Judge.

Alvin Leroy Mills appeals from a final judgment of dissolution of marriage awarding his former wife rehabilitative alimony and attorney fees. Mills takes exception to the award of alimony and attorney’s fees on the grounds that there was a “settlement agreement” entered into between the parties six years before the final judgment, which agreement precluded the former wife from recovering alimony and attorney fees. The trial court found that “the post-nupital agreement was abrogated by reconciliation and six years subsequent cohabitation”.

We hold that the trial court was correct in concluding under the particular circumstances of this case that this settlement agreement was abrogated by reconciliation. We further note that paragraph 8 of the agreement provided that only “matters dealing with property division shall continue to be binding” in the event of reconciliation.

We do not conclude that, as a matter of law, reconciliation abrogates all settlement agreements.

AFFIRMED.

SMITH and ZEHMER, JJ., concur.


author: SHIVERS, Judge.

text:
    Larry Donnell BROWN, Appellant, v. STATE of Florida, Appellee.
    No. AZ-407.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1984.
    Michael E. Allen, Public Defender; P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty.. Gen., Gregory G. Cos-tas, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   SHIVERS, Judge.

Defendant appeals a sentence for second degree murder with a firearm. We affirm.

Defendant pled guilty to the above charge. At sentencing, the trial judge reclassified the crime as a life felony, pursuant to section 775.087(1), Florida Statutes, (1983), and imposed a 17-year sentence per the sentencing guidelines. A 3-year mandatory minimum sentence attributable to the use of a firearm was also imposed, pursuant to section 775.087(2), Florida Statutes (1983). Defendant relies on Whitehead v. State, 450 So.2d 545 (Fla. 3d DCA 1984), disc. rev. pending, Case No. 65,492, for the proposition that the reclassification to a life felony where defendant is also subject to a 3-year mandatory minimum sentence would constitute an impermissible double enhancement. We disagree and, in so doing, recognize that our decision conflicts with the Third District Court of Appeal in Whitehead v. State, supra.

The court in Whitehead based its decision on the conclusion that both §§ 775.-087(1) and 775.087(2) constitute a form of enhancement. The functions of the two subsections, however, have been distinguished by the Fourth District Court of Appeal in Blanton v. State, 388 So.2d 1271 (Fla. 4th DCA 1980), rev. denied, 399 So.2d 1140 (1981):

[I]t is clear that the two subsections of Section 775.087 serve two different functions. Subsection (1) provides for reclassification of a felony to a higher degree where a weapon or firearm was used and the use of the weapon has not already resulted in the offense being upgraded to a higher degree_ However, subsection (2) does not increase the punishment but rather provides for mandatory minimum imprisonment for a person who has been convicted of [a crime] while possessing a firearm.

388 So.2d at 1274. That distinction has been adopted by this court in Vause v. State, 424 So.2d 52, 56 (Fla. 1st DCA 1982) and by the fifth district in Perez v. State, 431 So.2d 274 (Fla. 5th DCA 1983). See also Aikens v. State, 423 So.2d 593 (Fla. 1st DCA 1982) (rejecting appellant’s argument that subsections (1) and (2) are to be read in pari materia).

In addition to the distinction noted in Blanton v. State, supra, it would appear that the legislature did not intend the two subsections to be alternative methods of enhancement, as they are not addressed to congruent sets of crimes. Subsection (1) applies to all felonies while subsection (2) applies only to certain felonies named therein. This would indicate that the subsections were drafted to serve separate functions in deterring and punishing both the presence of firearms during the commission of felonies in general and the use of firearms at certain felonies.

Accordingly, appellant’s sentence is AFFIRMED.

MILLS and WENTWORTH, JJ., concur.


author: SHIVERS, Judge. NIMMONS, Judge,

text:
    David H. DeMARCO, Appellant, v. CAYMAN OVERSEAS REINSURANCE ASSOCIATION, LTD., Appellee.
    No. BA-252.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1984.

      Martin J. Mickler and Michael C. Pendley of Bullock, Childs, Mickler & Cohen, Jacksonville, for appellant.
    Waddell A. Wallace, III of Smith & Hul-sey, Jacksonville, for appellee.
   SHIVERS, Judge.

By this interlocutory appeal, appellant seeks review of the order of the trial court denying his motion to dismiss the cause of action on the ground that the court lacks jurisdiction over his person. The trial court determined that the appellant, the defendant below, was subject to substituted service of process under § 48.181(1), Florida Statutes. We agree and affirm.

The plaintiff below, Cayman Overseas Reinsurance Association, Ltd. (CORAL), a Cayman Islands corporation, entered into an agreement reinsuring certain risks with Snug Harbour, Ltd. (Snug Harbour), a Cayman Islands corporation of which the appellant was president and a major stockholder. Subsequently, a dispute arose between CORAL and Snug Harbour as to the payment of claims on these reinsured risks. To forestall a planned legal action against Snug Harbour, the appellant signed a guarantee agreeing to be personally liable for Snug Harbour’s obligations under the reinsurance agreement. The appellant was a resident of Florida at the time of signing this guarantee and the signing occurred in this state. Two years later, CORAL brought the suit below against the appellant in the Circuit Court for Duval County for breach of the contractual obligation of the guarantee. The appellant, no longer a Florida resident, was served by substituted service of process under the long-arm statute of our state pursuant to the provisions of § 48.181(1), Florida Statutes, as follows:

(1) The acceptance by any person or persons, individually, or associated together as a co-partnership or any other form or type of association, who are residents of any other state or country, and all foreign corporations, and any person who is a resident of the state and who subsequently becomes a nonresident of the state or conceals his whereabouts, of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry on a business or business venture in the state, or to have an office or agency in the state, constitutes an appointment by the persons and foreign corporations of the secretary of state of the state as their agent on whom all process in any action or proceeding against them, or any of them, arising out of any transaction or operation connected with or incidental to the business or business venture may be served. The acceptance of the privilege is signification of the agreement of the persons and foreign corporations that the process against them which is so served is of the same validity as if served personally on the persons or foreign corporations.

The Florida Supreme Court has held that each case presented under the long-arm statute must be resolved on the basis of the facts revealed by the record in the particular case. Wm. E. Strasser Con struction Corp. v. Linn, 97 So.2d 458 (Fla. 1957).

This court has maintained the view that it is the public policy of Florida that its long-arm statute reach as far as the United States Constitution permits. Fisher v. Premiere Realty Company, Inc., 298 So.2d 447 (Fla. 1st DCA 1974); Babson Bros. Co. v. Allison, 298 So.2d 450 (Fla. 1st DCA 1974). The extent of that reach is defined in the principle set forth by the United States Supreme Court in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945):

[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” (citation omitted).

Thus, construction of Florida’s long-arm statute is limited only by its terms and the due process requirement of minimum contacts with the forum.

In the instant case, the guarantee establishing the contractual obligation sued upon was executed by the appellant in this state. The single act of signing a contractual agreement within the forum state may constitute sufficient minimum contacts to sustain the exercise of in personam jurisdiction over a nonresident in subsequent suit for breach of the agreement. Fisher; Einhorn v. Home State Savings Association, 256 So.2d 57 (Fla. 4th DCA 1971). Under the facts presented in the instant case, there is ample support for the trial court’s determination that the appellant had accepted the privilege of engaging in a business or business venture in this state so as to be subject to the exercise of Florida’s long-arm jurisdiction under § 48.-181(1). This exercise of jurisdiction does not, in our view, offend “traditional notions of fair play and substantial justice.” On the contrary it seems fair to require the appellant who executed a guarantee in Florida to return to this forum for adjudication of his obligation under that agreement. Accordingly, we affirm.

WENTWORTH, J., concurs.

NIMMONS, J., dissents with written opinion.

NIMMONS, Judge,

dissenting.

I cannot agree that the single act of DeMarco’s signing the subject agreement in Florida was sufficient to sustain the trial court’s exercise of in personam jurisdiction under Section 48.181(1), Florida Statutes, where performance of the agreement’s obligations was to occur in the Cayman Islands, home of the obligee, Coral. I would reverse.


author: COBB, Chief Judge.

text:
    D.K.G., a child, Appellant, v. STATE of Florida, Appellee.
    No. 84-360.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 1984.

      James Russo, Public Defender, and Robert M. Moletteire, Asst. Public Defender, Titusville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Chief Judge.

The first issue we must consider on this appeal is whether or not the minor defendant, D.K.G., has properly reserved for appeal a legally dispositive issue following a nolo contendere plea. See Brown v. State, 376 So.2d 382 (Fla.1979). Under the rule as set forth in Brown, the trial judge has wide discretion to accept or reject an Ashby nolo plea based upon his perception of the dispositive nature vel non of the legal issue reserved for appeal.

In the instant case, there was no stipulation or express finding by the trial court that the suppression ruling which D.K.G. seeks to appeal would be dispositive of the case. See Alexander v. State, 399 So.2d 110 (Fla. 1st DCA 1981); Snell v. State, 388 So.2d 1353 (Fla. 5th DCA 1980); Hardison v. State, 385 So.2d 738 (Fla. 2d DCA 1980). It is therefore contended by the state that we should dismiss this appeal on that basis. See Robinson v. State, 373 So.2d 898 (Fla.1979). The transcript of the plea taken on January 25, 1984, shows that at time of trial, the attorney for D.K.G. apprised the trial court that the defendant child was ready to enter a plea, and then said:

Your Honor, at this time in light of the motion, the child wishes to enter a plea of no contest and we would request for the record to reserve his right to appeal your ruling on the motion.

The motion referred to in the above statement was a motion to suppress evidence acquired during an investigatory stop of the child, which was heard and denied by the trial court immediately prior to the proffered plea. The court responded to the proffer by saying, “All right,” and the court then proceeded to establish the voluntariness of the plea. The state made no comment in response to defense counsel’s request to reserve the right to appeal the trial court’s ruling on the motion to suppress. Nothing explicit was said by the defense, the state, or the court about the dispositive nature of the ruling on the suppression motion.

In Leisure v. State, 429 So.2d 434 (Fla. 1st DCA 1983), review denied, 449 So.2d 264 (Fla.1984), the defendant sought to appeal the trial court’s denial of his motion to suppress certain tangible evidence seized by the police following a plea of nolo con-tendere. The trial court accepted the plea but failed to make an express finding on the question of whether the issue reserved on appeal was dispositive of the case. There was no stipulation by the state as to the dispositiveness of the motion. The state argued that the appellate court was without jurisdiction.

The First District, in an opinion by Judge Shivers, noted that the trial court, before accepting the nolo plea, specifically advised the appellant that by entering the nolo plea he was reserving the right to appeal the ruling on the motion to suppress. On this basis, the appellate court determined that the plea was induced by the trial court’s instruction to the defendant and that a finding of dispositiveness was implied from the record. Based upon the record before it, the court could not determine whether the suppression ruling was dispositive and, therefore, relinquished jurisdiction to allow the trial court to decide that issue.

In the case before us, unlike Leisure, there is no indication that the trial court induced the plea by instruction to the defendant. Clearly, there was no stipulation by the state or finding by the court in regard to dispositiveness. Therefore, we are without jurisdiction and must dismiss this appeal pursuant to Brown, Ashby, Alexander, Snell and Hardison.

For future guidance to trial courts in cases involving conditional nolo pleas seeking to preserve a right to appeal, wherein a confession is not at issue, we endorse the procedure recommended by Judge Shivers in the Leisure opinion:

If the issue sought to be reserved on appeal does not involve the suppression of a confession, the defendant will always have some burden of demonstrating that the issue is dispositive. If the State believes that the issue is not dis-positive, it should explain to the court the additional evidence upon which the defendant might be convicted. At this point, the court should make an express determination of whether the issue is dispositive of the case. If the court decides that the issue is not dispositive, it should not accept a nolo plea unless the nolo plea is specifically entered without reservation of the right of appeal and the trial court is satisfied that the defendant understands that by entering the nolo plea he is waiving his right to appeal.

429 So.2d at 437.

DISMISSED.

DAUKSCH and SHARP, JJ., concur.

      . State V. Ashby, 245 So.2d 225 (Fla.1971).


text:
    Claudette Lisa LOUZON, Appellant, v. STATE of Florida, Appellee.
    No. 84-641.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 1984.

      James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellée.
   PER CURIAM.

Under the Florida Sentencing Guidelines “community control” does not encompass incarceration in state prison and therefore is properly classified as a “non-state prison sanction.” See §§ 948.10(1), 948.001(1), Florida Statutes (1983); Fla.R.Crim.P. 3.701d.l3 and committee note (d)(8). Therefore, the trial judge imposed a guideline sentence not a departure sentence.

AFFIRMED.

COBB, C.J., and SHARP and COWART, JJ., concur.


text:
    Randy DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 84-711.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 1984.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Bell v. State, 459 So.2d 478 (Fla. 5th DCA 1984).

DAUKSCH, ORFINGER and COWART, JJ., concur.


text:
    Willie E. KEELEY, Appellant, v. STATE of Florida, Appellee.
    No. 84-9.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 1984.
    James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

The motion for rehearing is granted and the previous opinion issued herein on October 11, 1984 is withdrawn and in its stead the following is issued as the decision of the court.

AFFIRMED.

DAUKSCH, SHARP and COWART, JJ., concur.


author: SCHEB, Judge.

text:
    Eugene FOUNTAINE, Appellant, v. STATE of Florida, Appellee.
    No. 83-1929.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Defendant, Eugene Fountaine, was convicted of first-degree murder and sentenced to life imprisonment with a mandatory minimum of twenty-five years. We find no merit to any of the three points he raises on appeal. However, we wish to discuss our reasoning for rejecting his contention that the court erred in refusing to grant immunity to a witness subpoenaed by the defense.

We begin by examining the context in which defendant’s contention arose. James Powers was a Rhode Island prison inmate serving a sentence for murder. He was summoned to testify at defendant’s trial pursuant to the trial court’s issuance of a certificate to procure out-of-state witnesses which had been requested by defendant’s counsel. Powers had indicated to an investigator that if he was granted immunity, he would testify that he was present when one William Salisbury, the state’s principal witness, actually killed the victim. Salisbury had already testified that appellant had hired him and Allen Brash to kill the victim and that Brash had actually committed the murder. However, when defense counsel proffered Powers’ testimony, Powers would only answer a few questions. He then invoked his privilege against self-incrimination when he was asked any questions concerning details of the killing of the victim. Powers admitted during this proffer that the only reason he was not willing to testify fully was his lack of immunity.

Defense counsel then asked the court to grant Powers use immunity. Counsel contended that since the state had the power to grant immunity to a witness, the defense should have equal ability to call witnesses and have them granted use immunity. Otherwise, he argued, the defendant’s constitutional right to present the testimony of favorable witnesses to establish his defense would be violated. The prosecution countered with the argument that only the state could grant immunity to a witness, and that it refused to grant immunity to Powers in this case. The court declined to grant immunity and ruled that defense counsel could call Powers to the stand to ask only those questions Powers was willing to answer without invoking the fifth amendment. We think the court* was correct in its ruling.

Since immunity from prosecution is a creature of statute, City of Hollywood v. Washington, 384 So.2d 1315 (Fla. 4th DCA 1980), we turn our attention to the text of Florida’s use immunity statute, which is found in section 914.04, Florida Statutes (1983). That section states:

No person who has been duly served with a subpoena or subpoena duces te-cum shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no testimony so given or evidence so produced shall be received against him upon any criminal investigation or proceeding.

The supreme court recently addressed the operation of the statute in Jenny v. State, 447 So.2d 1351 (Fla.1984). There James Jenny was subpoenaed by the state to testify about a transaction for which he was later charged. The court held that section 914.04 was self-executing and automatically grants use immunity to one who testifies under the circumstances it delineates. The question now before us concerns those circumstances in which the statute applies. More particularly, we must determine whether the court is authorized to grant use immunity to a prospective defense witness in exchange for his testimony.

Defendant acknowledges that in Jenny the witness immunized was subpoenaed by the state. Nevertheless, since the statute is self-executing, defendant argues that it logically follows that it should apply equally to defense-subpoenaed witnesses. Thus, once subpoenaed by the defense, Powers could not be excused from testifying on the ground of self-incrimination, because he would automatically receive use immunity under section 914.04. Additionally, defendant underscores the importance of compelling Powers to testify, because it would have demonstrated that Salisbury, rather than Brash, had actually killed the victim. Powers’ testimony, according to defendant, would have destroyed Salisbury’s credibility before the jury. Being deprived of the benefit of Powers’ testimony, defendant argues, violated his right to establish his defense.

The purpose of creating an immunity statute in Florida was to aid the state in its prosecution of crimes. State v. Schell, 222 So.2d 757 (Fla. 2d DCA 1969). The statute is designed to insulate a witness against the incriminating effect of testimony the state compels that witness to give and should be liberally construed to accomplish that purpose. Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977). However, this authority to grant immunity historically lies with the state and not the court. See State v. Harris, 425 So.2d 118 (Fla. 3d DCA 1982). We are unaware of any cases in Florida giving a trial court the power to grant immunity on its own initiative.

Except for Harris there is a dearth of authority on this issue in Florida; however, in several instances in federal proceedings, defendants have sought to invoke immunity for witnesses but have been unsuccessful. For example, the courts have held that a defendant’s rights under the sixth amendment “Compulsory Process” clause do not supersede a witness’ right to invoke his fifth amendment privilege against self-incrimination, nor does it give a defendant the right to demand that the government shield a witness from the consequences of his own testimony. United States v. Chagra, 669 F.2d 241, 260 (5th Cir.), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982). Rather, the compulsory process clause holds only that the government may not act to prevent an otherwise willing witness from testifying for the defense. United States v. Lenz, 616 F.2d 960 (6th Cir.), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980). See also United States v. Bowling, 666 F.2d 1052 (6th Cir. 1981), cert. denied, 455 U.S. 960, 102 S.Ct. 1475, 71 L.Ed.2d 680 (1982). Furthermore, a defendant has no constitutional right under the fifth amendment to immunize a witness to secure that witness’ compulsory testimony even if that witness’ testimony is both exculpatory and unavailable from any other source. United States v. Thevis, 665 F.2d 616, 638-40 (5th Cir.), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982). Thus, federal courts have concluded that the right to present a defense does not entitle a defendant to demand immunity for his witnesses. Chagra, 669 F.2d at 260.

We hold that the self-executing feature of section 914.04 discussed in Jenny is limited to eases where the state subpoenas a witness to testify before the state attorney, grand jury, or before a court having felony jurisdiction. It cannot be invoked by the defendant to immunize a witness. Therefore, we find no error in the trial court’s refusal to grant immunity to Powers, who was subpoenaed to testify on behalf of the defendant. To hold otherwise would enable defendants to seriously impede the prosecution of crime. Accordingly, we affirm defendant’s judgment and sentence.

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

      . In Harris our sister court pointed to an impressive list of authorities holding that a court is simply not empowered to grant use immunity to defense witnesses. 425 So.2d at 120-121.