text:
    Vance J. SILTZER and Joann A. Siltzer, Appellants, v. NORTH FIRST BANK, a Florida banking corporation, Appellee.
    No. 83-1402.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1984.

      Roger L. Waltemyer of O’Halloran & Johnson, North Fort Myers, for appellants.
    Gordon R. Duncan of Alderman & Gerald, P.A., Fort Myers, for appellee.
   HOBSON, Acting Chief Judge.

Appellants, plaintiffs below, seek reversal of a final judgment entered in favor of appellee, defendant below. Appellee cross-appeals seeking reversal of the trial court’s order denying appellee’s motion for attorney fees. We affirm both the final judgment and the lower court’s order denying appellee’s motion for attorney fees.

In 1978, appellant, Vance Siltzer, as President of Gator Sports Center, Incorporated (“Gator Sports”), negotiated a loan of $25,-524.45 with appellee. The loan agreement was evidenced by an “Installment Loan, Disclosure Statement and Security Agreement” (“note”) and a real property mortgage. The note granted appellee a security interest in:

All inventory, equipment, furniture, fixtures, accounts receivable, and contract rights now held or hereinafter acquired together with proceeds of same. Also, a second mortgage on residence, assignment of stocks, assignment of I.D.S. certificate, and assignment of life insurance policy.

Appellants began having financial difficulties, and in February 1981 they closed Gator Sports and ceased doing business. A short time thereafter, Mr. Siltzer filed a Chapter 7 bankruptcy petition. In March 1981, the trustee in bankruptcy filed a notice of abandonment of estate property. The property abandoned included: furniture, fixtures, accounts receivable, inventory and equipment, contract rights, second mortgage on homestead claimed exempt. Upon abandonment, appellee moved to protect its security interest in the inventory of Gator Sports. On April 2, 1981, appellee, at a private sale, sold the inventory of Gator Sports for $5,000. On April 3, 1981, appellee mailed a letter to Mr. Siltzer informing him of the terms of the sale and that the proceeds were applied to the balance due under the note. Appellee did not attempt to liquidate the other items of collateral or to foreclose on the real estate mortgage.

On September 9, 1981, this action was-commenced, when appellants filed a complaint seeking a declaratory judgment. In their complaint, appellants alleged that because appellee did not adhere to the notice requirements of chapter 679, Florida Statutes (1981), in selling the inventory of Gator Sports, the appellants were not obligated to make any further payments on the second mortgage. A nonjury trial resulted in favor of the appellee. The final judgment contained the following findings of fact:

THIS CAUSE having been argued to the Court, and after a final evidentiary hearing, the Court finds that the credit due the Plaintiff-borrowers from the repossession and sale of the personal property is governed by the general equitable principles governing foreclosure of mortgages, and not by the U.C.C. because real estate mortgages are excluded from the U.C.C. The Court further finds that, in light of the first finding and under the circumstances existing at the time, the sale of personal property was for a reasonable price. The Court further finds that there was neither formal nor actual notice to the Plaintiff-borrowers by the Defendant-lender of the sale of the personal property. Accordingly, it is
ORDERED AND ADJUDGED that judgment shall be for Defendant, that the Plaintiff-borrower should be credited only with the amount actually received from the sale of the personal property, and that the real estate mortgage shall remain in full force and effect, and that Plaintiffs shall pay the costs of this cause in the amount of $481.50.

The trial court apparently found that ap-pellee’s actions in liquidating the collateral were not inequitable and granted judgment for the appellee. The trial court then ordered the loan balance reduced by the amount received from the sale of the inventory and concluded that the real estate mortgage would remain in full force and effect. Appellee then filed a motion for costs and attorney fees and thereafter an order granting appellee’s motion for costs and denying appellee’s motion for attorney fees was rendered.

Although we agree with the trial court’s conclusion that the real estate mortgage should remain in full force and effect, we cannot agree with its finding of fact that “the credit due the Plaintiff-borrowers from the repossession and sale of the personal property is governed by the general equitable principles governing foreclosure of mortgages not by the U.C.C. because real estate mortgages are excluded from the U.C.C.”

As appellants argue, because section 679.102(l)(a), Florida Statutes (1981), applies “[to] any transaction ... which is intended to create a security interest in personal property or fixtures ...,” and the collateral under the note which was sold was inventory in Gator Sports, principles of the Uniform Commercial Code (“U.C.C.”) apply. Thus, appellants argue that the notice provisions set out in section 679.-504(3), Florida Statutes (1981), require ap-pellee to give notice of the sale to appellants. We agree. We also agree with appellants that the failure of a secured party (appellee) to comply with the U.C.C. notice provision bars that creditor from obtaining a deficiency judgment following the repossession and sale of collateral. Turk v. St. Petersburg Bank & Trust Co., 281 So.2d 534 (Fla. 2d DCA 1973). However, appellants further assert that by applying this principle to this case, appellants are not obligated to make further payments on the note and the appellee is prohibited from disposing of the remaining collateral, specifically, their residence. With this assertion, we disagree.

First, appellee’s failure to comply with the requirements of the U.C.C. by failing to notice appellants of the inventory sale only affects personalty and does not affect the rights of the mortgagee. Continental Center, Inc. v. Walter E. Heller & Co. of Florida, 415 So.2d 751 (Fla. 3d DCA 1982). The second mortgage as collateral under the note is not governed by the U.C.C. principles, but by general equitable principles governing foreclosure of mortgages.

, Second, although no deficiency judgment has been sought by the appellee, there is no doubt that the principle announced in Turk applies to this case. Thus, appellee’s failure to notice bars the appellee from ever obtaining a deficiency judgment as a result of the sale of personalty under the note. However, the fact that this deficiency judgment is now unavailable to the appellee does not preclude the appellee from disposing of the remaining collateral. This is true even if the debtor obtained a general discharge in bankruptcy, because the discharge in bankruptcy does not extinguish the debt but merely renders it unenforceable against the debtor. Helms v. Holmes, 129 F.2d 263 (5th Cir.1942); 1A Collier on Bankruptcy, ¶ 17.27 at p. 1719 (14th Ed.1978). Thus, the underlying obligation survives and supports the consensual lien on other assets of the debtor. First State Bank v. Zoss, 312 N.W.2d 127 (S.D.1981); City Hall Building & Loan Association of Newark v. Star Cory., 110 N.J.L. 570, 166 A. 223 (1933); 1A Collier on Bankruptcy, ¶ 17.29 at p. 1742.74 (14th Ed.1978).

This is precisely the case in the present instance. While it is clear that the secured party (appellee) did not comply with the U.C.C. notice provisions, the appel-lee holds a valid consensual lien secured by the appellant’s real property mortgage and therefore is entitled to proceed against the second mortgage on appellants’ residence, in spite of the fact that it cannot proceed for a deficiency judgment upon default of the loan. Thus, in order for the appellants to protect the possible foreclosure on their residence, payments on the note must continue.

As to appellee’s cross-appeal, we affirm the trial court’s order denying attorney fees. Under the terms of the mortgage, attorney fees would be owed by the mortgagors “because of the failure on the part of said mortgagors to perform, comply with, and abide by each and every of the stipulations, conditions, and covenants of said promissory note and this deed .... ” The mortgage further provides that the terms and conditions of the promissory note are incorporated in the mortgage. The note provides that the makers shall be liable for the principal and interest “together with the costs of collection, including attorney’s fees equal to ten percent of the principal sum or such larger amounts as may be reasonable and just if collected by legal proceedings or through an attorney at law.” Further, the guarantee of payment contained in the note provides that the guarantors:

unconditionally guarantee(s) the payment of the note on the reverse side hereof and any extensions or renewals thereof, and all expenses (including attorney’s fees) incurred in the collection thereof, the enforcement of rights under any security therefor and the enforcement hereof_

Because appellee made no claim at any time that appellants failed to fulfill any requirements under the mortgage or note, the appellants are not liable for attorney fees under the attorney fee provision of the mortgage or the collection clause in the note.

Although an award of attorney fees might have been entered pursuant to the ambiguous wording of the attorney fee provision included in the boilerplate of the guarantee of payment clause contained in the note, a close reading of this provision would not require the imposition of attorney fees in a declaratory judgment action brought by appellants. Our position is supported by the well-recognized principle that the decision of the lower court comes to this court clothed with a presumption of correctness. Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Anderman v. Miller, 359 So.2d 472 (Fla. 3d DCA 1978).

Accordingly, with the exception of the trial court’s finding that the sale of appellants’ personal property was governed by general equitable principles rather than by U.C.C. principles, we affirm both the final judgment and the lower court’s order denying appellee’s motion for attorney fees.

AFFIRMED.

BOARDMAN and RYDER, JJ., concur.

      . Section 679.504, Florida Statutes (1981), provides in pertinent part:
      (3) ... Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debt- or if he has not signed after default a conspicuous statement renouncing or modifying his right to notification of sale and, except in the case of consumer goods, to any other person who has a security interest in the collateral and who has duly filed a financing statement indexed in the name of the debtor in this state.

      . Although not cited by either party, we are guided, in part, by our sister court’s decision in Continental Center, Inc. In that case, appellant raised the defense, in a foreclosure proceeding initiated by the creditor, that as a debtor it was entitled to notice within the meaning of section 679.501(3), Florida Statutes (1979), of the sale of the inventory. This inventory, along with a mortgage, secured a promissory note. The court rejected this argument, stating that section 679.504(3), Florida Statutes (1979), and section 679.501(3)(b), "deal with the sale of personalty as collateral and do not effect Heller and Company’s right as a mortgagee.” The court implicitly held that the failure to notice the debtor of the sale of inventory did not affect the validity of a foreclosure proceeding on the remaining collateral. However, in Continental Center, Inc., the issue of the consequences of the failure to notice was not addressed and apparently was not recognized because the deficiency judgment resulting from the sale of inventory was allowed (albeit reduced due to the commercial unreasonableness of the sale). Thus, although we are in agreement with the court’s treatment of the inapplicability of the provisions of the U.C.C. to mortgages held as collateral under a promissory note, we are convinced that under Florida law a deficiency judgment cannot be obtained after there has been a failure to notice the debtor of the sale of personalty.


source: Caselaw Access Project

author: OTT, Chief Judge.

license: Public Domain

text:
    Harlton COWART, Appellant, v. Frank PERKINS, as Property Appraiser of Manatee County, and Sam A. Cornwell, as Tax Collector of Manatee County, Appellees.
    No. 83-1522.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1984.
    Michael W. Ross of Goodheart & Ross, Bradenton, for appellant.
    Donald B. Hadsock, Bradenton, for ap-pellee Perkins.
    Richard H. Bailey of Harllee, Porges, Bailey & Durkin, Bradenton, for appellee Cornwell.
   OTT, Chief Judge.

Harlton Cowart appeals from the grant of appellees’ motions to dismiss his amended complaint to contest a real property tax assessment. We reverse and remand for further proceedings.

Appellant applied for an agricultural use classification of certain property for the 1982 tax year. The application was denied. Certification of the tax roll occurred on December 13, 1982.

On February 9,1983, within sixty days of certification of the tax roll, appellant filed a suit in Manatee County Circuit Court challenging denial of the agricultural use classification request and resulting tax assessment. Appellees filed motions to dismiss, asserting that the court lacked jurisdiction to hear the suit because appellant failed to pay the tax collector the amount of tax which he admitted in good faith to be owing prior to bringing the circuit court action and failed to file a receipt from the tax collector with the complaint. See § 194.-171(3), Fla.Stat. (Supp.1982). Appellant paid taxes on the real estate in question on March 17, 1983, prior to the taxes becoming delinquent. A hearing on the motions to dismiss was held on April 18, 1983. On April 22, 1983, the trial court granted ap-pellees’ motions to dismiss the original complaint and allowed appellant two weeks to amend his complaint. Appellant filed an amended complaint on April 28, 1983, attaching the tax payment receipt. Appel-lees’ motions to dismiss were renewed and granted as final judgments on the ground that the amended complaint was not filed within sixty days of certification of the tax roll. See § 194.171(2), Fla.Stat. (Supp. 1982).

Appellant contends that the amended complaint was not untimely filed, as it related back to the original complaint which was filed within the sixty-day period provided in section 194.171(2). In support, he cites Hilltop Ranch, Inc. v. Brown, 308 So.2d 124 (Fla. 1st DCA 1975), and Brooks v. Interlachen Lakes Estates, Inc., 332 So.2d 681 (Fla. 1st DCA 1976).

In Hilltop Ranch, the court was asked whether the payment required by section 194.171(3) must be made within the sixty-day period contained in section 194.171(2) and whether such payment was a jurisdictional prerequisite. The court stated:

Here, the original complaint was filed within the 60 days required by F.S. § 194.171(2). Although appellant did not originally pay the taxes prior to the filing of its complaint, it did, prior to the ruling on appellees’ motion to dismiss, pay the taxes and then filed an amended complaint. It is our opinion, and we so hold, that the relation back of amendments provisions of Civil Procedure Rule 1.190(c) is applicable in this case, and that the trial court erred in not finding that the amended complaint, containing the allegation of payment and receipt therefor, related back to the date of the original complaint. See In re Estate of Wood, 271 So.2d 42 (Fla.App. 3rd, 1972), opinion affirmed and adopted by Florida Supreme Court in 278 So.2d 614 (Fla.1973). Thus, even if we were to hold that the payment of the taxes within the 60 days allowed for filing a complaint were a jurisdictional prerequisite, which we decline to do at this time, we find that appellant complied with the requirement when it filed its amended complaint which related back to the time of filing the original complaint.

308 So.2d at 126.

In Brooks, the taxpayers filed their complaint challenging tax assessments within sixty days of certification of the tax roll without a receipt indicating a good faith tax payment. The property appraiser moved to dismiss the complaint without leave to amend. On the date of the hearing on the motion to dismiss, the taxpayers tendered payment of the taxes to the tax collector who refused to issue a receipt on the ground that the amount owed had increased. The trial court denied the motion to dismiss. In an interlocutory appeal, the property appraiser sought to reverse the trial court’s denial of his motion to dismiss without leave to amend. On appeal, the First District Court of Appeal affirmed the trial court’s ruling, citing Hilltop and finding no material distinction between the cases regardless of the fact that no amended complaint had been filed prior to the hearing on the motion to dismiss. The court stated that the amended complaint, when filed, would relate back to the date of the original complaint.

We find the rationale of Hilltop and Brooks persuasive. Accordingly, we hold that appellant’s amended complaint, which included a receipt for his good faith payment of taxes due, related back to the time that the original complaint was filed and was, therefore, timely filed. The trial court erred in granting appellees’ motions to dismiss the amended complaint.

REVERSED and REMANDED for further proceedings.

DANAHY and CAMPBELL, JJ., concur.

      . Section 194.171, Florida Statutes (Supp.1982), provides in pertinent part, as follows:
      (2) No action shall be brought to contest a tax assessment after sixty days from the date the assessment being contested is certified for collection under s. 193.122(2).
      (3) Before a taxpayer may bring an action to contest a tax assessment, he shall pay to the collector the amount of the tax which he admits in good faith to be owing. The collector shall issue a receipt for the payment, and the taxpayer shall file the receipt with his complaint. •

        (4) No action to contest a tax assessment may be maintained, and any such action shall be dismissed, unless all taxes on the property assessed in years after the action is brought, which the taxpayer in good faith admits to be owing, arc paid before they become delinquent.

      . The sixty-day period contained in section 194.-171(2) is a jurisdictional statute of nonclaim rather than a statute of limitations. Coe v. ITT Community Development Corp., 362 So.2d 8 (Fla.1978).

      . Millstream Corp. v. Dade County, 340 So.2d 1276 (Fla. 3d DCA 1977), relied upon by appel-lees, is distinguishable. In that case, a taxpayer’s complaint was dismissed for failure to comply with section 194.171(3) and (4). However, there was no allegation that tender of payment was made prior to the ruling on the motion to dismiss or at any time before the taxes became delinquent. 340 So.2d at 1278.

      . Section 194.171, Florida Statutes (Supp.1982), was revised by chapter 83-204, section 7, Laws of Florida. The statute now provides in pertinent part, as follows:
      (2) No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.122(2), or after 60 days from the date a decision is rendered concerning said assessment by the property appraisal adjustment board if a petition contesting the assessment had not received final action by the property appraisal adjustment board prior to extension of the roll under s. 197.0134.
      (3) Before a taxpayer may bring an action to contest a tax assessment, he shall pay to the collector not less than the amount of the tax which he admits in good faith to be owing. The collector shall issue a receipt for the payment, and the taxpayer shall file the receipt with his complaint.
      (4) Payment of a tax shall not be deemed an admission that the tax was due and shall not prejudice the right of a taxpayer to bring a timely action as provided in subsection (2) to challenge such tax and seek a refund.
      (5) No action to contest a tax assessment may be maintained, and any such action shall be dismissed, unless all taxes on the property assessed in years after the action is brought, which the taxpayer in good faith admits to be owing, are paid before they become delinquent.
      (6) The requirements of subsections (2), (3), and (5) are jurisdictional. No court shall have jurisdiction in such cases until after the requirements of both subsections (2) and (3) have been met. A court shall lose jurisdiction of cases where the taxpayer has failed to comply with the requirements of subsection (5).
      With full realization that any comment we make on the effect of the recent amendment to controversies similar to those involved in the case at bar will constitute obiter dictum, we nonetheless caution the practitioner against further reliance on the relation back doctrine after the effective date of the amendment in light of subsection (6) of the amendment, which provides that the requirements of subsection (3) are jurisdictional.


author: PER CURIAM.

text:
    Roy James ADCOCK, Appellant, v. STATE of Florida, Appellee.
    No. 83-887.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 1984.
    Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

AFFIRMED. See State ex rel. Roberts v. Cochran, 140 So.2d 597 (Fla.1962), and Russ v. State, 313 So.2d 758 (Fla.1975).

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


text:
    Donald G. DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1036.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 1984.

      Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

AFFIRMED. See Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979), and Robinson v. State, 373 So.2d 898 (Fla.1979).

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


text:
    Gerald B. COLVIN, Appellant, v. STATE of Florida, Appellee.
    No. AP-172.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1984.
    Michael Allen, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and John Tiede-mann, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The appellant, after trial by jury was adjudicated guilty of five counts of grand theft. Sentence was stayed and withheld, and he was placed on concurrent probationary terms. He claims on appeal that it was error for the trial court to treat each count as a separate crime. We affirm.

The evidence at trial showed that he was discovered by the police to have been in possession of all five firearms at the same time at his place of business on January 28, 1983, and the state conceded that someone else was the one who took the firearms from the owners. Appellant asserts that he cannot, therefore, be guilty of more than one count of theft.

The question for resolution is one of proper interpretation of the theft statute, Section 812.014, Florida Statutes (1981), as applied to one who is charged with theft of multiple firearms under the above cireum-stances. We are not confronted with a double jeopardy issue since the defendant’s possession of one of the firearms was not an element of his possession of any of the other firearms. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); State v. Getz, 435 So.2d 789 (Fla.1983).

Section 812.014 (1981) provides in pertinent part:

(1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent:
(a) to deprive the other person of a right to the property or a benefit therefrom.
(b) To appropriate the property to his own use or to the use of any person not entitled thereto.
(2)(a) ’ ⅞ 5
(b) It is grand theft of the second degree and a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and 775.084, if the property stolen is:
1. Valued at $100 or more, but less than $20,000.
2. A will, codicil, or other testamentary instrument.
3. A firearm.
4. A motor vehicle.
5. Any member of the genus Bos (cattle) or the genus Equus (horse), or any hybrid of the specified genera.
6. Any fire extinguisher.
7. Any amount of citrus fruit consisting of 2,000 or more individual pieces of fruit.

The state asserts that the issue in this case concerning the number of allowable units of prosecution is virtually identical to that which was involved in State v. Grappin, 427 So.2d 760 (Fla. 2nd DCA 1983), and suggests that we follow the holding by our sister court. There, the defendant stole five firearms from the owner’s residence on a certain date. He was charged with five counts of theft based upon the five firearms and was convicted and sentenced on all counts. The Grappin court answered in the affirmative the question of whether the theft statute contemplates multiple crimes based upon the theft of multiple firearms at the same time and place. The rationale of the Second District centers around the reference in the statute to “a” firearm as compared to the use of the article “any” which appears in the statute immediately preceding other designated subjects of theft. In a recent case involving another statute, Section 944.47, Florida Statutes (1981) (possession of contraband in a correctional institution), this Court rejected the Grappin “a/any test” for the determination of legislative intent as to the permissible units of prosecution:

Without detracting from the seriousness of Grappin ⅛ inquiry, we conclude that it is impossible to derive multiple units of prosecution, or single units, from the legislature’s choice of “a” or “any” in listing items in a criminal statute.

Watts v. State, 440 So.2d 505 (Fla. 1st DCA 1983).

In Watts, the defendant, an inmate at Union Correctional Institution, was charged with two counts of introducing into, or possessing, or attempting to take from the institution a contraband weapon in violation of Section 944.47, Florida Statutes (1981). Based upon evidence that he was in possession of both knives at the same time and place, he was adjudged guilty and sentenced on both counts of possession. Instead of relying upon the “a/any” test of Grappin and the reference in Section 944.47 to “any firearm or weapon,” Watts adopted the approach espoused in Castleberry v. State, 402 So.2d 1231 (Fla. 5th DCA 1981), which emphasizes “chronological and spatial relationships” in determining whether a multifaceted offense is a single prosecution unit because simultaneous in time and space, or multiple because not simultaneous. The court in Watts concluded that the defendant could not be regarded as having committed two offenses based upon his possession of two weapons.

One can, with some persuasiveness, analogize the possession offense in Watts with the theft offense in the instant case in view of the prosecution’s evidence of Colvin’s culpability (his simultaneous possession of the five firearms) and in view of the Supreme Court’s recognition that the offense formerly known as “buying and receiving stolen property” is now a variety of theft embodied in the “omnibus theft statute.” State v. Lewis, 364 So.2d 1223 (Fla.1978). Nevertheless, for reasons which we will address, we are of the view that the crime involved in Watts is materially distinguishable from those involved in the instant case.

We note first the distinction between a so-called “victimless” crime, as dealt with in Watts, and the crime of theft, the essential elements of which include the ownership of an item of property by another, the taking of that property without consent of the owner, and the accused’s intent to deprive the owner of that property or the use thereof. The possession of weapons in Watts constituted the crime itself. Possession of the stolen firearms in this case merely completed the crime of theft so far as appellant is concerned, but it did not constitute the whole offense. Under the theft statute, the felonious taking is in a sense imputed to the subsequent culpable purchaser or possessor. Section 812.-014(l)(a), (b), Florida Statutes (1981). Thus, in this case, Count I of the information charged that appellant obtained or used a shotgun, the property of Herbert Mock, with intent to deprive Mock of a right to the property or a benefit therefrom, or to appropriate the property to his own use or to the use of any person not entitled thereto, contrary to the statute. Counts II through V allege, in like manner, theft of firearms from Charles Collins, Paul Spacey, Mike Horvath, and David Langston, respectively.

Furthermore, although each count alleges that the offense was committed on the same day, January 28, 1982, the state’s evidence indicated, and appellant admitted, that the firearms were purchased on four or five different occasions, so as to dispel any notion that appellant came into possession of all of the guns at one and the same time. Although it is not clear which gun was purchased on what occasion, it is clear that there were a series of transactions involving the purchase of stolen firearms actually taken from their owners at different times and places.

Prom the above, it is apparent that the “chronological and spatial relationships” test which guided this Court’s decision in Watts does not compel the conclusion that only a single offense was committed, since the only “simultaneous” aspect of appellant’s offense established by the evidence was that all the firearms were discovered in his possession on the same day. It would defy reason to hold that a single offense occurred because the weapons were all discovered by the police at the same time. To do so would make the determination of single versus’ multiple offenses dependent upon mere fortuitous events, or actions of the police, rather than conduct of the accused. Had the state alleged or the proof disclosed that the five firearms were all stolen from the same person at the same time, and received by appellant in a single delivery, the result might well be different. See, Hearn v. State, 55 So.2d 559 (Fla.1951); Joiner v. State, 382 So.2d 1357 (Fla. 1st DCA 1980).

The legislature, in enacting Section 812.014, simply provided that the crime of theft can be committed in several ways, one of which happens to be by acts formerly prosecuted as “receiving stolen property,” Section 812.031, Florida Statutes (1975). See State v. Lewis, supra. Under the present theft statute, one who buys stolen property with knowledge of its stolen character is just as guilty of theft as the person who physically removed the property from the owner’s possession. As the Fifth District noted in Brewer v. State, 413 So.2d 1217, 1219 (Fla. 5th DCA 1982), “how the property of another is acquired is no. longer important.” The statute in effect classifies the knowing buyer of stolen property as a principal, or participant in the crime of theft itself, rather than as an accessory after the fact. That the legislature has the authority to reclassify and define offenses and offenders does not seem subject to question. See, e.g., Wilson v. State, 225 So.2d 321, 323 (Fla.1969), rev’d on other grounds, 403 U.S. 947, 91 S.Ct. 2286, 29 L.Ed.2d 858 (1971); see also State v. Zardon, 406 So.2d 61 (Fla. 3rd DCA 1981).

Watts may be further distinguished by noting that the statute involved in that case is aimed at preventing harm or injury to inmates and prison personnel by punishing the possession of implements which could be used for accomplishing such harm. Section 944.47(l)(a), (c), Florida Statutes (1981). The theft statute, on the other hand, is aimed at punishing an offender for harm already accomplished, i.e., the taking of property and depriving an owner of its use and benefit. Whether an inmate armed simultaneously with two knives instead of one has the capacity to commit twice as much harm or injury is open to speculation. There is no such uncertainty about the crime of theft under the present statute. The harm inflicted upon one person whose shotgun is stolen is totally separate from the harm inflicted upon other shotgun owners whose guns are stolen, and the magnitude of the crime against society is enhanced in direct proportion to the number of persons victimized.

We conclude that the trial judge’s ruling that five offenses were committed is supportable by the record in this case under a reasonable interpretation of the statute.

We certify, pursuant to Fla.App.R. 9.030(a)(2)(A)(v), the following as a question of great public importance:

ARE MULTIPLE UNITS OF PROSECUTION PERMISSIBLE UNDER SECTION 812.014, FLORIDA STATUTES (1981), WHERE SEVERAL FIREARMS, THE SUBJECTS OF THE ALLEGED THEFTS, WERE TAKEN FROM THEIR RESPECTIVE OWNERS AT DIFFERENT TIMES AND PLACES, AND THE DEFENDANT WHO HAD NO PART IN THE ORIGINAL TAKINGS IS CONVICTED BASED UPON HIS PURCHASE OF THE FIREARMS WITH KNOWLEDGE OF THEIR STOLEN CHARACTER, FROM THE SAME PERSON ON SEVERAL DIFFERENT OCCASIONS?

SMITH, WIGGINTON and NIMMONS, JJ., concur.

      . Nor is Section 775.021(4), Florida Statutes (1981), controlling. It provides:
      Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.
      This section abrogated the "single transaction rule.” Borges v. State, 415 So.2d 1265 (Fla.1982). That rule held that a person charged with several offenses arising from a single criminal transaction should only be convicted of the most serious offense charged. Id. at 1266. In order for Section 775.021(4) (1981) to be applicable, the judgments for the various offenses must be based upon "two or more criminal statutes” and the statute requires separate sentences upon the properly adjudicated offenses committed in the course of one criminal transaction or episode. As in Watts v. State, 440 So.2d 505 (Fla. 1st DCA 1983), Section 775.-021(4) cannot, for two reasons, control whether the defendant Colvin's conduct should be considered as multiple violations of the theft statute:
      first, because section 775.021(4) does not come into play unless judgments are properly entered “for violation of two or more criminal statutes”; and second, because section 775.-021(4) does not say, except by excluding sentences for lesser included offenses, how many judgments are to be entered for conduct that may be conceived, but need not be, as violating the same statute twice.

        Watts, 440 So.2d at 506. (We discuss only the 1981 version of Section 775.021(4) inasmuch as the effective date of the recent legislative amendment, Chapter 83-156, Laws of Florida, was June 22, 1983.)

      . The "obtaining or using” proscribed by Section 812.014(1), Florida Statutes (1981), is defined:
      "Obtains or uses” means any manner of:
      (a) Taking or exercising control over property-
      Section 812.012(2), Florida Statutes (1981).


author: MILLS, Judge.

text:
    Richard A. MIMS, Appellant, v. STATE of Florida, Appellee,
    No. AS-172.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1984.
    Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

We have reviewed the record in this case which is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and have found no reversible error.

AFFIRMED.

WENTWORTH, J., and McCORD, GUYTE P., Jr., (ret.), Associate Judge, concur.


text:
    E.C., a child/L.S., a child, Appellants, v. STATE of Florida, Appellee.
    Nos. AS-224, AS-261.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1984.
    Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

In this consolidated appeal two juveniles contend that the trial court erred in sentencing them as adults without securing a predisposition report and without making written findings of suitability for adult sanctions as required by section 39.111(6), Florida Statutes (1981). We agree and reverse.

Both appellants were charged by information filed October 29, 1982, with the grand theft of a 1982 Ford Thunderbird. Pursuant to a negotiated plea, E.C. entered a nolo contendere plea to the grand theft charge. The plea was accepted by the trial court, which in turn ordered a presentence investigation report (PSI). When E.C. was finally adjudicated guilty, counsel advised the judge that since his client was a juvenile he had requested HRS to prepare a predisposition report, that HRS had responded that the report was not needed because a PSI had instead been prepared, and that while the PSI contained a statement by the HRS supervisors, it did not include a recommendation by HRS. The trial court determined that such a predisposition report would not be materially different from the statement in the PSI, adjudicated E.C. guilty, found him to be a menace to society, and then sentenced him to a five year prison term. Much the same process occurred for appellant L.S.; however, unlike the PSI in E.C.’s case, L.S.’s PSI did not contain recommendations by HRS. L.S., too, was found a menace to society and sentenced to a five year prison term. This appeal ensued.

While a PSI prepared by the Department of Corrections may indeed in some cases be the functional equivalent of a predisposition report, section 39.111(6) clearly mandates by its use of the word “shall” that the predisposition report be prepared by HRS, with a recommendation by HRS, according to the six listed criteria in the statute. Indeed, the courts of this state have consistently read the statute as mandating that certain procedures must be followed when sentencing juveniles as adults, see State v. Cain, 381 So.2d 1361 (Fla.1980); Rhoden v. State, 421 So.2d 780 (Fla. 2nd DCA 1982), and the Second District Court of Appeal has explicitly rejected the notion that a PSI by the Department of Corrections is an adequate substitute for the mandated predisposition report:

The existence of a PSI prepared by the Department of Corrections did not suffice because the purpose of a predisposition report is somewhat different than that of a PSI, and the two reports are prepared by different departments having different perspectives.

Leach v. State, 407 So.2d 1066, 1067 (Fla. 2nd DCA 1981); also see Sawyer v. State, 421 So.2d 4 (Fla. 3rd DCA 1982), where the trial court’s failure to include specific reference to the six criteria contained in the statute required reversal. Moreover, section 39.111(6)(d) requires that “[a]ny decision to impose adult sanctions shall be in writing.” Rhoden v. State, supra.

Accordingly, we vacate appellants’ sentences and remand this cause to the trial court with directions that it obtain a predisposition report from HRS and enter an appropriate order making written findings of suitability for the imposition of adult sanctions.

ERVIN, C.J., JOANOS, J., and CHARLES E. MINER, Jr., Associate Judge, concur.


text:
    Harry O. SEYMOUR, et al., Appellants, v. H.H. HARRIS, III, Appellee.
    No. AT-294.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1984.

      George Ralph Miller, DeFuniak Springs, for appellants.
    Walter A. Steigleman of Dewrell, Blue & Brannon, Fort Walton Beach, for appellee.
   PER CURIAM.

The trial judge did not err in finding that the option agreement was extended by the appellee’s tender to appellant of the sums required under the terms of the agreement. And although we might have afforded the appellee relief different from that provided for in the final judgment, we cannot say that the equitable relief fashioned by the trial court in this specific performance case constituted an abuse of discretion. We find no reversible error.

AFFIRMED.

SMITH, WIGGINTON and NIMMONS, JJ., concur.


text:
    Thomas A. PROVENCE, Jr., Appellant, v. Louis L. WAINWRIGHT, Appellee.
    No. AU-77.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1984.
    Thomas A. Provence, Jr., pro se, for appellant.
    Jim Smith, Atty. Gen., and Lorene C. Powell, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Upon reviewing the record as supplemented by appellee at this Court’s request, we find no error in the trial court’s order denying appellant’s petition for writ of ha-beas' corpus. Appellant received the notice and hearing to which he was entitled under rule 33-3.081, Florida Administrative Code. We, accordingly, affirm.

LARRY G. SMITH, WIGGINTON and NIMMONS, JJ., concur.

      . Fla.R.App.P. 9.200(f)(2).


text:
    STANDARD DISTRIBUTION COMPANY and National Fire Insurance Company of Hart, Appellants, v. Sidney Wade JOHNSON, Appellee.
    No. AU-119.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1984.

      John L. Myrick of Kinsey, Myrick & Troxel, Pensacola, for appellants.
    Ralph A. Peterson of Beggs & Lane, Pensacola, for appellee.
   MILLS, Judge.

The employer/carrier (E/C) appeal from a workers’ compensation order awarding Johnson compensation and medical benefits contending the deputy commissioner erred in finding that Johnson was enroute to his home and had not deviated from his employment at the time of an automobile accident resulting in his injury. We affirm.

Johnson was employed as a traveling salesman and was paid by Standard for the use of his car. He did not have to report to Standard's office at the end of the business day. At the time of the accident, he had completed the business day and was en-route to his home. Although he intended to visit a friend before reaching his home, he had not deviated from his usual route home at the time of the accident.

Johnson was a traveling employee who was paid for the use of his car on his employer’s business. These are exceptions to the going-and-comiñg rule, thus, his accident and injury while enroute home were covered by the workers’ compensation act. Poinciana Village Const. Corp. v. Gallarano, 424 So.2d 822 (Fla. 1st DCA 1982).

Standard argues that intention to deviate from the usual route removes Johnson from application of the exceptions. This argument is without merit. A distinct deviation is required. Sunshine Jr. Food Stores v. Thompson, 409 So.2d 190 (Fla. 1st DCA 1982).

Standard also argues that its suggestion of a more practical route removes application of the exceptions. This argument is without merit too when the usual route is used.

There is competent substantial evidence that this accident and the injuries occurred while Johnson was on his usual route home.

AFFIRMED.

WENTWORTH, J., and McCORD, GUYTE P., Jr., (Ret.), Associate Judge, concur.


text:
    Existus MYERS, Appellant, v. STATE of Florida, Appellee.
    No. AU-263.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1984.
    Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

We have reviewed the record and Myers’ pro se briefs in this case which is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and have found no reversible error.

AFFIRMED.

WENTWORTH, J., and McCORD, GUYTE P., Jr., (Ret.), Associate Judge, concur.


text:
    Fred J. MINNITI, Appellant, v. Ruth Gwen MINNITI, Appellee.
    No. 83-226.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Penzick & Parker and John Parker, Miami, for appellant.
    Siegfried, Kipnis, Gross & Schoninger and Tom Hall, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

We are unable to hold that the award of the husband’s interest in the marital home to the wife as lump sum alimony constituted an abuse of discretion and therefore affirm that aspect of the judgment under review. Conner v. Conner, 439 So.2d 887 (Fla.1983); Lopez v. Lopez, 438 So.2d 984 (Fla. 3d DCA 1983); Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980), rev. denied, 392 So.2d 1378 (Fla.1981); Hague v. Hague, 382 So.2d 852 (Fla. 3d DCA 1980). The wife has conceded error in the amounts of child support and the cause is consequently remanded for redetermination of that issue. Upon remand, the trial court will also be free to spell out any required details of the general terms of the “shared custody” provision of the final judgment.

Affirmed in part, reversed in part and remanded.


text:
    M.L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-492.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Bennett H. Brummer, Public Defender and Claudia B. Greenberg, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

The trial court erred in denying the motion to suppress. McClain v. State, 408 So.2d 721 (Fla. 1st DCA 1982); Parker v. State, 363 So.2d 383 (Fla. 3d DCA 1978). We therefore reverse the adjudication of delinquency which was based upon a finding that the appellant was guilty of carrying a concealed weapon, with directions to discharge him.

Reversed and remanded with directions.


text:
    John HENRY, Appellant, v. The STATE of Florida, Appellee.
    No. 83-828.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Bennett H. Brummer, Public Defender, and Elliott H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Campbell v. State, 227 So.2d 873 (Fla.1969), cert. dismissed, 400 U.S. 801, 91 S.Ct. 7, 27 L.Ed.2d 33 (1970); State v. Amaro, 436 So.2d 1056 (Fla. 2d DCA 1983); Mills v. State, 407 So.2d 218 (Fla. 3d DCA 1981).


author: JORGENSON, Judge.

text:
    The STATE of Florida, Appellant, v. Rene BORREGO, Appellee.
    No. 83-867.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Gelber, Glass, Durant, Canal, Pineiro & Greene and Joseph Durant, Miami, for ap-pellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   JORGENSON, Judge.

This is an appeal by the state from an order of the trial court granting Rene Bor-rego’s motion to dismiss based upon a bad faith prosecution. We have jurisdiction. See Fla.R.App.P. 9.140(c)(1)(A). For the reasons which follow we reverse.

In its order of dismissal the trial court made extensive findings as follows:

1. The Defendant, RENE BORREGO, up until December 12, 1982, had been employed for nine and one-half years as a Police Officer with the North Bay Village Police Department.
2. On December 19, 1982, at about 11:00 A.M., officers of the Metro-Dade Police Department arrested BORREGO at his house for dealing in stolen property, after he allegedly received stolen diamonds delivered by an informant employed by the Metro-Dade Department.
3. After his arrest, BORREGO, [sic] was driven to an office of the Metro-Dade Police Deaprtment [sic] building where he was questioned by Sgt. Collins about cooperating with the police.
4. BORREGO awaited the arrival of an attorney while the police awaited the arrival of Assistant State Attorney La-Vecchio.
5. Assistant State Attorney LaVec-chio arrived at the police office around 3:00 P.M., with BORREGO’s attorney, Joseph Corey, arriving about one-half hour later.
6. Chief Blair was called and he arrived during this time period. His being called was based on the fact that Borre-go was a police officer with the North Bay Village Police Department. After his arrival, Chief Blair made his position known that the defendant would no longer be employed by North Bay Village. Chief Blair’s position in this regard was unequivocal.
7. Present during various stages of discussions were Borrego, LaVecchio, Corey, Sgt. Collins and Sgt. Howett, of the Metro-Dade Police Department, Police Chief Blair and Detective Nevers from the North Bay Village Police Department, Daniel Borrego and another detective, both with the Metrp-Dade Police Department.
8. Sgt. Collins testified that he wanted Borrego to work in an undercover capacity in exchange for which the charges against him would be dropped.
9. Discussions took place concerning Borrego’s resignation or termination from the North Bay Village Police Department with Borrego wanting a resignation instead of being fired so that he would be in better standing should he desire to apply for a police position with another department.
10. The discussions between LaVec-chio, Collins, Corey and BORREGO, (through his attorney, Corey) continued for several hours. BORREGO decided to sign a letter of resignation from the North Bay Village Police Department.
11. After lengthy discussions between Corey, Collins, and BORREGO (through Corey), and LaVecchio, a document was drafted by LaVecchio which was entitled “No Action Agreement” which was signed by LaVecchio and a copy of the document was given to Corey. This document has been submitted as evidence in this case. This agreement provided in part that BORREGO was to perform certain acts for the Metro-Dade Police Department and the State Attorney’s office.
During this time, at Organized Crime Bureau, BORREGO made no statements in regard [sic] the charges against him and was asked nothing about his own case. ,
12. The meeting ended with BORRE-GO and his attorney agreeing to be in LaVecchio’s office at the State Attorney’s office the next afternoon. The meeting ended about 7:30 P.M.
13. After BORREGO’s “arrest” on December 19, 1982, he was not booked into jail, fingerprinted, photographed or otherwise processed. The reason according to the police was that if BORREGO was going to work undercover, they wanted to keep the fact of his arrest quiet.
14. Early the next morning, December 20, 1982, Assistant State Attorney LaVecchio went in to tell Chief Investigator Ray Havens and State Attorney Janet Reno what had transpired the previous day.
15. When LaVecchio told the State Attorney that the police wanted BORRE-GO to cooperate and that the charges would be dropped, she rejected the plan.
16. Attorney Corey and BORREGO arrived at the State Attorney’s office, as agreed, and were told by LaVecchio that the deal was off.
17. BORREGO, through his attorney, reiterated that he was willing to perform in accordance with the agreement.
18. LaVecchio said the word was out that BORREGO had been arrested and he would be of no use in an undercover capacity.
19. BORREGO was taken to the Dade County Jail and booked, in the normal fashion, and an Information charging him with dealing in stolen property was filed.

The trial court concluded that the state was bound, under the doctrine of equitable immunity, see Rowe v. Griffin, 676 F.2d 524 (11th Cir.1982), by its promise not to prosecute. The court in Rowe established a three-part test which must be met before an agreement not to prosecute will be judicially enforced:

We believe that, as a matter of fair conduct, the government ought to be required to honor such an agreement when it appears from the record that: (1) an agreement was made; (2) the defendant has performed on his side; and (3) the subsequent prosecution is directly related to offenses in which the defendant, pursuant to the agreement, either assisted with the investigation or testified for the government,

id. at 527-28. The only element of the Rowe test that has been met in this case was the making of an agreement. Borre-go, although willing to perform, did not perform, nor did he assist with the investigation or testify. Borrego has not shown that he detrimentally relied upon the state’s promise not to prosecute nor has he shown any prejudice. Both of these criteria are necessary before such an agreement will be enforced. See Rowe; cf. Odom v. State, 310 So.2d 770 (Fla. 2d DCA 1975) (specific performance of plea bargain not available to the defendant absent clear showing of irrevocable prejudice). Equitable immunity, if it exists in Florida, is not present in this case.

Borrego’s reliance on State v. Davis, 188 So.2d 24 (Fla. 2d DCA), cert. denied mem., 194 So.2d 621 (Fla.1966), is misplaced. In that case the defendant had performed his part of the agreement. The court held, therefore, that the state was bound by its promise. In the present case the agreement was still executory; there was no performance prior to its repudiation by the state. Borrego’s willingness to perform is not performance. While we might agree with the court below, based upon sound public policy, that the state should be bound by its promises, that is not the law. We cannot enforce such agreements while they are still in their executory stage.

Reversed and remanded for further proceedings.


text:
    Jose Aroldo ALMEIDA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-909.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Bennett H. Brummer, Public Defender and Lionel Barnet and James H. Greason, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Julie Thornton, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

We affirm without prejudice to appellant filing in the trial court appropriate motions predicated upon ineffective assistance of counsel.

Affirmed.


author: BASKIN, Judge.

text:
    The STATE of Florida, Appellant, v. Norris ASHLEY, Jr., Appellee.
    No. 83-1314.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Jim Smith, Atty. Gen., and Marti Rothen-berg and Penny H. Brill, Asst. Attys. Gen., for appellant.
    Flynn & Tarkoff, and Michael Tarkoff, Miami, for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

Norris Ashley was charged with trafficking and possession of cocaine. Cocaine was seized from Ashley’s place of business pursuant to two search warrants which Ashley challenged by filing motions to suppress in the trial court. Finding that the affidavits lacked sufficient facts to establish probable cause, the trial court granted the motions to suppress. The state appealed.

The state contends that the trial court erred in applying too rigorous a standard to the issuance of the search warrants which were proper under the “totality of circumstances” test set forth in Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We reject the state’s argument and hold that the supporting affidavits fail to allege sufficient facts to justify the search warrants under either the reliability-credibility test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), or the more flexible test of Illinois v. Gates. See Blue v. State, 441 So.2d 165 (Fla. 3d DCA 1983). We therefore affirm the trial court’s order granting defendant’s motions to suppress.

Affirmed.


text:
    Orlando HENRY and Ricardo Febles, Appellants, v. The STATE of Florida, Appellee.
    Nos. 83-1456, 83-1513.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.

      Raymond J. Takiff, Coconut Grove, Jerry W. Burford, Miami, for appellants.
    Jim Smith, Atty. Gen. and Julie Thornton and Paul Mendelson, Asst. Attys. Gen., for appellee.’
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

These consolidated appeals are from the co-defendants’ convictions pursuant to a jury verdict finding them guilty on the charge of unlawful possession of cannabis. Each of the co-defendants was placed on probation for a period of five years with a special condition that he serve 364 days in the Dade County jail.

It is contended on appeal that the evidence was insufficient as a matter of law to support the jury verdicts and that the trial court erred in its denial of a requested instruction to the jury. We find these contentions to be without merit.

The record discloses that the case was fully and fairly tried, that the verdicts are supported by the evidence and that the several rulings of the trial court challenged by the defendants do not under the law constitute harmful error. See: Cordle v. State, 435 So.2d 902, 907 (Fla. 1st DCA 1983); Turner v. State, 423 So.2d 594 (Fla. 3d DCA 1982); Scott v. State, 396 So.2d 271 (Fla. 3d DCA 1981); Lacy v. State, 387 So.2d 561 (Fla. 4th DCA 1980); Pittman v. State, 360 So.2d 1138 (Fla. 1st DCA 1978).

Accordingly, the judgments and sentences appealed are affirmed.

Affirmed.


text:
    MIAMI BUILDING & CONSTRUCTION TRADES COUNCIL, AFL-CIO, Appellant, v. INDEPENDENT ENTERPRISES INTERNATIONAL, INC., a Florida corporation, a/k/a Independent Enterprises, and Edward B. Fitzpatrick, Jr., Construction Corp., a New York corporation doing business in Florida, and Patrick D. Kenally, Appellees.
    No. 83-1683.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Joseph C. Segor, Kaplan, Sicking, Hes-sen, Sugarman, Rosenthal & DeCastro and Howard S. Susskind, Miami for appellant.
    Abrams & Abrams, and Ira Abrams, Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick and Gordon Dean Rogers, Miami for appellees.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Trades Council appeals the trial court’s order denying its motion to intervene in the lawsuit between Independent Enterprises and Fitzpatrick. Finding that appellant has failed to show the direct and immediate interest which entitles a litigant to intervene in an action between other parties, Faircloth v. Mr. Boston Distillers Corp., 245 So.2d 240 (Fla.1970), we affirm.

Affirmed.


text:
    Sandra L. DALKIN, Jack Ell and Security Trust Company, Appellants, v. AMERICAN FRIENDS OF the HEBREW UNIVERSITY, INC., a New York not-for-profit corporation, Appellee.
    No. 83-1877.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    McDermott, Will & Emery and John T. Schriver, Miami, for appellants.
    Ron Brenner, Male & Simon, Miami, for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Mt. Sinai Hospital of Greater Miami, Inc. v. Jordan, 290 So.2d 484 (Fla.1974).


author: FERGUSON, Judge.

text:
    John A. CONEY, Appellant, v. GENERAL INSURANCE COMPANY, Appellee.
    No. 83-2001.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Jack L. Herskowitz, Miami, for appellant.
    Joe N. Unger, Kopplow & Flynn, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

Plaintiff-insured appeals from a summary judgment entered in favor of defendant-insurer. The sole issue for our review is whether the seller of a liability insurance policy is obligated to renew the offer to purchase uninsured motorist coverage where the purchaser, who had rejected uninsured motorist coverage only four months earlier, returns to add comprehensive collision coverage to the policy. We answer in the negative and affirm.

When the original insurance policy was issued on July 6, 1981, plaintiff rejected in writing any uninsured motorist coverage. On November 7,1981, he added comprehensive collision coverage to the existing policy. It is undisputed that plaintiff was not again offered uninsured motorist coverage at the time the collision coverage was added. The trial court granted summary judgment for defendant, concluding as a matter of law that:

The provisions of F.S. 627.727(1) apply to automobile liability insurance and not to collision insurance. Therefore, a change in the policy, not in anyway affecting the policy provisions regarding liability coverage, will not require the insurer to provide uninsured motorist coverage unless specifically rejected by the insured, cf. Hartford Accident & Indemnity Co. v. Sheffield, 375 So.2d 598 (3d DCA 1979).

While we agree that summary judgment for the defendant was appropriate in this case, our affirmance is for reasons other than as stated in the judgment. The applicable statute is Section 627.727, Florida Statutes (1981), which provides in relevant part:

627.727 Automobile liability insurance; uninsured vehicle coverage; insolvent insurer protection.—
(1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state ... unless coverage is provided ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles _ However, the coverage required under this section shall not be applicable when ... any insured named in the policy shall reject the coverage .... Unless the named insured, or lessee having the privilege of rejecting uninsured motorist coverage, requests such coverage in writing, the coverage need not be provided in or supplemental to a renewal policy, or any other policy which extends, changes, supersedes, or replaces an existing policy issued to him by the same insurer, when the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer. Each insurer shall at least annually notify the named insured of his options as to coverage required by this sec-tion_[e.s.]

Under prior case law, the test for determining whether Section 627.727(1) required an insurance company to afford the insured a new opportunity to reject uninsured motorist coverage was whether the original policy had been changed in any material respect. Maxwell v. United States Fidelity & Guaranty Co., 399 So.2d 1051, 1054-55 (Fla. 1st DCA 1981); Hartford Accident & Indemnity Co. v. Sheffield, 375 So.2d 598, 600 n. 3 (Fla. 3d DCA 1979). That determination was necessary because, under the previous version of Section 627.-727, a new offer of uninsured motorist coverage was unnecessary only as to renewal policies. Thus, if a policy were materially changed, it was not a renewal policy and the insurer was required to re-offer uninsured motorist protection. Compare Sheffield (policy change which significantly lowered liability limits was material, so that insurer was required to secure a second rejection of UM coverage) and United States Fire Insurance Co. v. Van Iderstyne, 347 So.2d 672 (Fla. 4th DCA 1977) (insurer required to re-offer UM coverage where another automobile was added to the existing liability policy) with United States Fidelity & Guaranty Co. v. Waln, 395 So.2d 1211 (Fla. 4th DCA), rev. denied, 407 So.2d 1106 (Fla.1981) (insurer not required to re-offer UM coverage where policy change was a substitution of automobiles having no effect on bodily injury liability coverage).

As noted above, however, the legislature amended Section 627.727(1), effective October 1, 1980. Act of July 9, 1980, Ch. 80-396, § 1, Laws of Fla. 1587 (codified at § 627.727(1), Florida Statutes (1981)). This amendment has the effect of “eliminating any possibility that this section will again be interpreted as requiring an offer of uninsured motorist coverage with every ‘material’ policy change.” American Fire & Indemnity Co. v. Spaulding, 442 So.2d 206 (Fla.1983); see also Robert v. Zarem, 437 So.2d 730, 732 (Fla. 4th DCA 1983) (Hersey, J., specially concurring). Rather, the new statute makes it clear that an insurer need not renew the offer of uninsured motorist coverage even if there is any change in an existing policy within the annual policy period.

Plaintiff’s claim that his insurer was required to secure a second rejection of uninsured motorist protection when he changed his policy to add collision coverage is thus without merit owing to the new statutory language.

Summary judgment is AFFIRMED.

      . There is no doubt but that the 1981 statute applies to the case at bar, since all relevant dates were in late 1981. Cf. United States Fire Insurance Co. v. Van Iderstyne, 347 So.2d 672 (Fla. 4th DCA 1977) (statute in effect at time of endorsement which added additional automobile and premium therefor controlled disposition of case, rather than statute effective on date of issuance of the original policy).

      . Until the 1980 amendment to the statute, Section 626.727(1) provided in part:
      ... Unless the name insured, or lessee having the privilege of rejecting uninsured motorist coverage, requests such coverage in writing, the coverage need not be provided in or supplemental to a renewal policy when the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.


author: PER CURIAM. FERGUSON, Judge

text:
    Jack Harold PETERSON, Appellant, v. Roy Frederick PETERSON, Appellee.
    No. 83-2218.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Peter R. Lopez, Miami, for appellant.
    Donald F. March, Sr., Miami, for appel-lee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Peterson v. Peterson, 431 So.2d 672 (Fla. 3d DCA 1983).

FERGUSON, Judge

(concurring).

By this affirmance we do not decide whether appellant will be estopped to seek, by separate action, reimbursement for cost of improvements made to the realty during the period of his life estate — an issue which was not before the court in the trial of this action.


author: DELL, Judge.

text:
    Pathos LAMPKIN, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 82-2103.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.

      Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst, Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Pathos Lampkin, Sr., appeals from the judgment and sentence rendered after a jury found him guilty on three counts: (1) carrying a concealed firearm; (2) possession of a firearm by a convicted felon; and (3) driving under the influence. Before appellant’s trial, defense counsel moved to exclude evidence of Lampkin’s refusal to take a breathalyzer test and also moved to exclude evidence of the nature of Lamp-kin’s previous conviction. The trial court denied both motions. At the close of the trial, the prosecutor’s argument contained certain statements the appellant alleges improperly referred to his failure to testify.

Appellant contends the trial court erred by admitting evidence of his refusal to take a breathalyzer test. Without reaching the merits of appellant’s contention, we find sufficient competent evidence in the record to establish appellant’s intoxication. In Grala v. State, 414 So.2d 621 (Fla. 3d DCA 1982), the district court found that an improper admission of actual test results constituted only harmless error where other competent evidence established the appellant’s state of intoxication. Thus we find no reversible error in the admission of appellant’s refusal to take the test.

We note that after appellant’s arrest section 316.1932, Florida Statutes (Supp.1982) became effective. Subsection (l)(a) provides in part that evidence of a refusal to take a breathalyzer test “shall be admissible into evidence in any criminal proceeding.” The United States Supreme Court, in construing a similar South Dakota statute, approved the admissibility of the refusal in South Dakota v. Neville, 459 U.S. -, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). Relying on Neville, the Second District Court of Appeal held section 316.-1932(l)(a), Florida Statutes, to be constitutional. State v. Pagach, 442 So.2d 331 (Fla. 2d DCA 1983). We agree with the holding of the Second District.

Regarding the other points raised by the appellant, we find no error in the trial court’s admission of a certified copy of appellant’s prior conviction, see Parker v. State, 408 So.2d 1037, 1038 (Fla.1982) and we find no impropriety in the prosecutor’s remarks made during closing argument, see White v. State, 377 So.2d 1149 (Fla.1979). Accordingly, we affirm the judgment and sentence rendered by the trial court.

ANSTEAD, C.J., and HERSEY, J., concur.


text:
    ANCHOR SAVINGS BANK, Appellant, v. Bertha BERLIN and Bank of Florida In St. Petersburg, a Florida corporation, Appellees.
    No. 83-577.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.
    Bruce Zeidel of Cohen, Scherer & Cohn, P.A., North Palm Beach, for appellant.
    Sara Bresky Blumberg of Dubiner & Blumberg, West Palm Beach, for appellee —Berlin.
    James H. Ryan of Gary, Dytrych & Ryan, P.A., North Palm Beach, for appel-lee — Bank of Florida in St. Petersburg.
   DELL, Judge.

Anchor Savings Bank appeals from a final judgment which denied its claim for unjust enrichment resulting from a double payment of interest on a certificate of deposit.

Briefly stated, appellant issued a certificate of deposit to appellee, Bertha Berlin (Berlin), who in turn assigned the certificate to appellee, Bank of Florida in St. Petersburg (Bank of Florida). Berlin made the assignment to secure a loan made by the Bank of Florida to her son’s corporation, Berneil Associates, Inc. Appellant continued paying interest on the certificate to Berlin’s passbook account.

Approximately twenty months later, Ber-neil Associates, Inc. defaulted on its loan. The Bank of Florida delivered a collection notice wherein it demanded the balance of the certificate of deposit plus accrued interest. Appellant discovered it had already paid interest on the account to Berlin, but relying on the assignment and the collection notice sent by Bank of Florida, it honored the collection notice and paid the proceeds of the certificate plus accrued interest. This payment resulted in a second payment of interest.

Appellant filed suit against Berlin and the Bank of Florida claiming that its double payment of interest unjustly enriched either Berlin or the Bank of Florida. Berlin and the Bank of Florida cross-claimed against each other and the Bank of Florida counterclaimed against appellant. After a nonjury trial, the court denied the claims for relief.

Appellant contends here, as it did in the trial court, that its double payment of interest resulted in unjust enrichment to one of the recipients and that it is entitled to equitable relief. We agree.

Appellant argues that it inadvertently paid interest to Berlin and that it made the second payment of interest to the Bank of Florida in accordance with the assignment and collection notice. Berlin asserts she properly received the interest based on an agreement between her and the Bank of Florida that she would continue to receive the interest from the certificate while it was pledged to secure her son’s loan. The Bank of Florida denies this agreement and relies on the documents to establish its entitlement to the interest payment.

We have reviewed the documents evidencing the debt, the assignment and the collection notice. The plain language of the documents required appellant to pay the proceeds of the certificate together with interest to the Bank of Florida. Therefore, the trial court properly concluded that as to the claims and counterclaims between appellant and the Bank of Florida, neither party should recover from the other.

Turning to appellant’s claim against Berlin, we must conclude that the trial court erred in failing to grant appellant equitable relief. There is no question that Berlin received interest payments after the delivery of the assignment to the Bank of Florida, and that the documents demonstrate the Bank of Florida’s entitlement to the interest accruing from that date. Further, the record supports appellant’s contention that it inadvertently paid interest to Berlin. It is well settled that

[wjhen the fact is proved that one has money received from another, if the recipient cannot show a legal and equitable ground for retaining it, the law creates the privity and promise necessary to sustain the action for money had and received. And it is settled that money paid under a mistake of facts may be so recovered, it being considered unconscionable that money so paid should be detained from the payor on his discovery of the mistake and demand for the money’s return.

Ferguson v. Cotler, 382 So.2d 1315, 1316 (Fla. 5th DCA 1980).

Accordingly, we hold the trial court erred when it entered judgment in favor of Berlin and against appellant.' However, neither this holding nor the final judgment resolves the issues set forth in Berlin’s cross-claim against the Bank of Florida. Therefore, we reverse and remand this case with instructions to enter judgment in favor of appellant and against Berlin for the amount of interest paid to her from the date of the assignment, and to determine the merit, if any, of her cross-claim against the Bank of Florida.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

BERANEK and WALDEN, JJ., concur.

      . However, we note that neither the final judgment nor the record reflects a disposition of Berlin’s cross-claim against the Bank of Florida.


text:
    Alfredo ALVAREZ, Appellant, v. STATE of Florida, Appellee.
    No. 83-681.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence for attempted first degree murder but reverse his conviction for possession of a firearm while engaged in a felony offense. See Bell v. State, 437 So.2d 1057 (Fla.1983). We reject appellant’s claim that his sentence was improperly enhanced. See Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1984). We reject appellant’s claim of error as to the trial court’s retention of jurisdiction because we do not believe the error to be fundamental and the appellant failed to raise this issue in the trial court.

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


text:
    James R. CARLSON, Appellant, v. KENT INSURANCE COMPANY, et al., Appellees.
    No. 83-1041.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.
    G. William Bissett of Preddy, Kutner & Hardy, P.A., Miami, for appellant.
    Kathleen V. McCarthy, Hialeah, for ap-pellees.
   PER CURIAM.

The final order dismissing appellee Kent Insurance Company as a party defendant on the basis of section 627.7262, Florida Statutes (Supp.1982) (the “non-joinder” statute), is reversed upon authority of VanBibber v. Hartford Accident & Indemnity Insurance Co., 439 So.2d 880 (Fla.1983),- since the incident giving rise to this action occurred prior to October 1, 1982, the effective date of the statute.

REVERSED.

GLICKSTEIN and HURLEY, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Sue RIDDELL, Appellee.
    No. 83-1245.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The defendant concedes that the trial court erred by sua sponte arresting the judgment and dismissing all charges against her. Accordingly, the order is reversed and remanded with directions to reinstate the judgment of conviction and the sentence imposed.

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


text:
    Lewis S. WALTON, Appellant, v. The SCHOOL BOARD OF BROWARD COUNTY, Florida (William T. McFatter, Superintendent), Appellee.
    No. 83-1455.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.
    Richard H. Frank and Richard T. Done-lan, Jr., and Mark F. Kelly of Law Offices of Frank & Kelly, P.A., Tampa, for appellant.
    Edward J. Marko of Marko, Stephany & Lyons, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. The identical issues have recently been decided adversely to appellant in the case of Walton v. Turlington, 444 So.2d 1082 (Fla. 1st DCA 1984).

GLICKSTEIN and HURLEY, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    CONTINENTAL CASUALTY COMPANY, Appellant, v. Ronald R. MORGAN, Appellee.
    No. 83-1481.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.

      Edward R. Curtis and Richard S. Womble of Fertig, Curtis & Wakefield, P.A., Fort Lauderdale, for appellant.
    James Joseph Weinert of Law Offices of Mathison & Deckert, West Palm Beach, for appellee.
   PER CURIAM.

Appellee sued appellant for damages arising out of an accident involving a Honda three-wheeled vehicle. During the progress of the suit, appellee served appellant with a request to produce certain documentation. Appellant responded and objected to many of the requests. In due course a hearing was held and the trial court sustained some objections and overruled others. As to the latter, the court’s order directed appellant to comply within thirty days. Instead, appellant filed a petition for writ of certiorari to review that order. In seeking a stay pending the cer-tiorari review, appellant assured opposing counsel and the trial court that, if certiorari was denied, it would comply with the order. Certiorari was denied by this court, and appellant thereafter filed a “Response to Plaintiff’s Request To Produce” in which it answered “None” to all but one of the requests. Whereupon appellee filed a motion for contempt and sanctions based upon Florida Rule of Civil Procedure 1.380(b) and the inherent power of the court. After a hearing on said motion the trial court entered the order appealed from, which stated:

"... the pattern of behaviour of the Defendant, CONTINENTAL CASUALTY COMPANY, in this matter to constitute contempt of this Court and the Defendant’s conduct to be an outrageous abuse of the discovery process. Accordingly, this Court imposes upon the Defendant, CONTINENTAL CASUALTY COMPANY, as a sanction, an assessment of reasonable attorneys fees and reasonable expenses incurred by the Plaintiff for all matters and efforts required of the Plaintiff with respect to the Request to Produce including the Plaintiff’s effort with respect to the Defendant’s petition for Writ of Certiorari. This Court retains jurisdiction to determine the amount of reasonable attorneys fees and expenses at a hearing to be held after notice to the parties.”

Appellant contends that the trial court did not have the authority to hold appellant in contempt for its alleged abuse of the discovery process because there is no provision for finding a party in contempt under Florida Rule of Civil Procedure 1.380(d) where the party has filed a response to the request for production in accordance with the court’s order. Appel-lee argues that appellant misled the court when it applied for and obtained a stay of the discovery order on the promise that it would immediately furnish the requested material. Unquestionably, that is the finding of the trial court.

Appellee contends that we are without jurisdiction because civil contempt is not reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(C). We reject that contention on authority of Langbert v. Langbert, 409 So.2d 1066 (Fla. 4th DCA 1981), and In Re Estate of Rasmussen, 335 So.2d 634 (Fla. 1st DCA 1975).

Based upon the record before us, it appears that there is an adequate basis in the record to support the trial court’s finding. Accordingly, we affirm the order appealed from.

AFFIRMED.

DOWNEY, HERSEY and GLICKSTEIN, JJ., concur.


text:
    Thomas HARRIS, Debra Harris, Harris Builders, Inc. and Harris Builders of Palm Beach, Inc., Petitioners, v. Bertha ZEESMAN, as Conservator of the Estate of Isadore Zeesman, Absentee, Respondent.
    No. 83-2425.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.
    Paul R. Lipton, North Miami Beach, for petitioners.
    Mark S. London of London & Strock, P.A., Hollywood, for respondent.
   PER CURIAM.

Petitioners, defendants in the trial court, seek a writ of certiorari to test the blanket denial of their motion to stay discovery. They contend that the trial court’s ruling constitutes a departure from the essential requirements of law because it contravenes the basic principle “that discovery as to the accounting must be deferred until the preliminary issue of the right to the accounting is settled.” Charles Sales Corp. v. Rovenger, 88 So.2d 551, 555 (Fla.1956). Without recounting each of the categories of items sought to be produced, suffice it to say that the trial court’s order fails to implement the foregoing principle. Consequently, on the authority of David v. Tansill, 297 So.2d 84 (Fla. 4th DCA 1974) and Armstrong v. Piatt, 201 So.2d 830 (Fla. 4th DCA 1967), we grant the writ of certiorari, quash the order on appeal and direct the trial court to reconsider defendants’ motion in accord with the case authority cited herein.

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


author: BOARDMAN, Acting Chief Judge.

text:
    In re ESTATE OF Mamie McCOY, Alice McCoy THOMPSON, as personal representative of the estate of Mamie McCoy, Appellant, v. John R. MILTON and Doris P. Milton, husband and wife, as trustee for Beverly June Milton, a minor, Appellees.
    Nos. 83-784, 83-801.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1984.

      John S. Jaffer of Wilson, Wilson & Jaf-fer, Sarasota, for appellant.
    Jack Wm. Windt, Sarasota, for appellees.
   BOARDMAN, Acting Chief Judge.

This appeal challenges the propriety of a “directed verdict” entered during the course of a nonjury trial and requires us to determine whether the introduction of portions of a deposition not violative of the dead man’s statute waives the protection of that statute as to the balance of the deposition. Both points merit discussion.

Appellant Alice McCoy Thompson was appointed guardian of the person and property of her ninety-eight-year-old mother, Mamie McCoy, on July 14, 1982. Five days later, appellant brought suit to rescind a deed executed by Mamie McCoy on November 9, 1977, at age ninety-three, which conveyed her home to appellees’ nine-year-old daughter, Beverly. Mrs. Thompson’s complaint alleged that the deed lacked consideration and that her mother either had been incompetent at the time of the conveyance or subject to appellees’ undue influence.

Pursuant to this rescission action, appellant deposed appellees on August 23, 1982, while Mamie McCoy was still living but presumably incompetent by reason of senility. Appellees disclosed in their depositions that they had selected Attorney Jack William Windt to prepare Mamie McCoy’s deed, that they were Mrs. McCoy’s trusted neighbors who assisted her in her daily activities, and that Mamie McCoy had received no consideration for her conveyance. These disclosures did not violate the dead man’s statute and were of obvious importance to appellant in establishing the allegations of her petition. Ap-pellees’ depositions also recorded their recollection of Mrs. McCoy’s conversations with Attorney Windt, as well as Mrs. McCoy’s discussions with them concerning the personal shortcomings of her children and her desire to make Beverely the beneficiary of her estate.

Mamie McCoy died on December 5, 1982, and Alice McCoy Thompson was substituted as plaintiff in the pending rescission action as personal representative of her mother’s estate. After the case had been set for nonjury trial, appellees discovered a will which Attorney Windt had drafted for Mamie McCoy in close proximity of time to the contested deed and which, perhaps predictably, conveyed Mrs. McCoy’s entire estate to appellees’ daughter, Beverly. Given the similarity of issues raised by these documents, the court proceeded to trial on the validity of both instruments.

At trial, appellant’s counsel, Ms. Schmoyer, elicited the testimony of Mamie McCoy’s various relatives who stated that Mrs. McCoy had been confused and forgetful “as early as 1949,” “since 1974,” “at least by the early '70’s,” and definitely “in 1977.” After adducing this evidence, Ms. Schmoyer attempted to introduce portions of appellees’ August, 1982, depositions, and the following discussion ensued.

THE COURT: Do you rest?
MS. SCHMOYER: No. I want to introduce portions of two depositions, and then I’ll rest.
MR. WINDT [appellees’ counsel]: You can put in all three if you want.
MS. SCHMOYER: No. I don’t want to put in all three, because I don’t want to waive the Dead Man’s Statute, so I’ve just made copies—
MS. SCHMOYER: Do you want me to read the portions into the record?
MR. WINDT: Could you just refer to them? It would save some time.
THE COURT: How long are they? Whose depositions are they?
MS. SCHMOYER: Both Miltons.
THE COURT: I thought you were going to call them.
MS. SCHMOYER: No.
THE COURT: He’s going to call them.
MS. SCHMOYER: I know he is.
THE COURT: All right, I’ll let you put these iñ in rebuttal if he doesn’t. I’d rather have the live testimony, and you can use that if it’s different than what they tell you.
MS. SCHMOYER: Rather than have me just submit this as part of my evidence in support of our position?
THE COURT: Wouldn’t you rather cross examine him on the deposition than to put that in now?
MS. SCHMOYER: Okay. I’ll hold it.
THE COURT: And if he doesn’t introduce it, I’ll allow you to put these into his case.
MR. WINDT: Are you resting?
MS. SCHMOYER: Except for that, I guess.

Appellees then moved for directed verdict on the basis that appellant’s evidence had failed to show Mamie McCoy’s lack of capacity at the time of each document’s execution, appellees’ undue influence, or the absence of consideration for the transfer. The trial court reserved ruling on this motion in order to hear the testimony of Mamie McCoy’s physician, a defense witness.

When appellees subsequently did not testify, appellant’s counsel attempted to continue her case in chief by reading portions of appellees’ depositions into evidence. Opposing counsel objected to Ms. Schmoyer’s selective reading of the depositions and was instructed by the court to include any omitted material. Ms. Schmoyer then objected that some of opposing counsel’s additions violated the dead man’s statute by referring to statements purportedly made by the deceased. Counsel also explained that she deliberately had omitted these excerpts to prevent waiver of that provision and that her presentation of portions of appellees’ depositions was authorized under Florida Rule of Civil Procedure 1.330(a). Appellees’ attorney responded by offering the entire deposition, and appellant’s counsel again objected on the basis of the dead man’s statute.

Presented with this procedural morass, the trial court excluded all depositions, denied Ms. Schmoyer’s request to call appel-lees personally because she had rested “except for entering those depositions,” and then granted appellees’ earlier motion for “directed verdict.” The court subsequently entered a final judgment for appellees, and this timely appeal ensued.

We note initially that appellees’ motion for “directed verdict” in this nonjury trial properly should have been a motion for involuntary dismissal under Florida Rule of Civil Procedure 1.420(b). Charlotte Asphalt, Inc. v. Cape Cave Corp., 406 So.2d 1234 (Fla. 2d DCA 1981). Appel-lees’ misnomer on this point does not affect the substance of this appeal, however, because the same legal principles govern both motions. Id. at 1236.

As Rule 1.420(b) makes clear, an opponent may seek involuntary dismissal of a cause of action or claim only after the party seeking affirmative relief has completed the presentation of his case. Logically, the trial court cannot fairly conclude that the plaintiff has shown no right to relief under the facts and the law presented until after the plaintiff has finally rested his case. Indeed, as the First District noted in Sapp v. Redding, 178 So.2d 204, 206 (Fla. 1st DCA 1965):

Every party litigant is entitled to his “day in court,” and this includes the right of a plaintiff to present admissible evidence in an attempt to prove the cause of action he has alleged, even though the testimony of his first witnesses may indicate that he has a weak case or none at all.

Applying these principles to the instant case, we conclude that appellant has not been fully accorded her day in court. While >we appreciate the trial court’s preference for appellees’ in-court testimony and commend its obvious desire to resolve this case expeditiously, we feel that the court’s concern with these matters could have unfairly influenced appellant to prematurely, albeit conditionally, rest her case. Because appellant expressed an unequivocal desire to present appellees’ deposition testimony in her case in chief, as was her prerogative under Florida Rule of Civil Procedure 1.330(a)(2), we do not believe that appellant fairly can be held to have concluded her evidence at the time of the “directed verdict’s” entry. Thus, we reverse and remand to allow appellant to continue the presentation of her case.

On remand, the trial court should allow appellant to either call appellees as adverse witnesses or present those portions of their depositions which she deems helpful in establishing her cause of action and which are otherwise admissible “under the rules of evidence applied as though the witness were then present and testifying.” Fla.R.Civ.P. 1.330(a), (a)(2). Should appellant choose to introduce portions of appel-lees’ depositions, however, she cannot then assert the protection of the dead man’s statute to forestall appellees from introducing “any other part that in fairness ought to be considered with the part introduced” under Rule 1.330(a)(4). As our supreme court noted in Herring v. Eiland, 81 So.2d 645, 648 (Fla.1955), a personal representative’s attempted use of portions of a deposition favorable to his position waives the protection of the dead man’s statute as to all legally competent evidence contained therein. See also Small v. Shure, 94 So.2d 371 (Fla.1957); Embrey v. Southern Gas & Electric Corp., 63 So.2d 258 (Fla.1953); W. Hicks, Trial Handbook for Florida Lawyers § 162 (1970). Although this observation in Herring appears to be dicta, we deem it to be a correct statement of the law as it applies to this appeal.

For the reasons previously stated, we REVERSE and REMAND for proceedings consistent with this opinion.

SCHEB and SCHOONOVER, JJ., concur.

      . § 90.602, Fla.Stat. (1981).

      . See In re Estate of Carpenter, 253 So.2d 697 (Fla.1971); Evers v. Zelyk, 422 So.2d 925 (Fla. 2d DCA 1982), petition for review denied, 430 So.2d 450 (1983).

      . While the dead man’s statute, of course, disqualifies an interested person from testifying as to his oral communications with the decedent, it does not prohibit him from testifying as to an oral communication between the decedent and a third party in which he took no part. See Withers v. Sandlin, 44 Fla. 253, 32 So. 829, 829 and 832 (1902).

      . Florida Rule of Civil Procedure 1.420(b) provides in pertinent part:
      After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of his evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief, without waiving the right to offer evidence if the motion is not granted. The court as trier of the facts may then determine them and render judgment against the party seeking affirmative relief or may decline to render judgment until the close of all the evidence. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.


author: LEHAN, Judge.

text:
    Jack KNIGHT and Evelyn Knight, Appellants, v. PINE ISLAND FRUIT CORPORATION, John H. Rauch, Lillian Rauch, William Iles, Jean Iles and Christopher Sapp, Appellees.
    No. 83-815.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1984.
    Charles Evans Davis of Fishback, Davis, Dominick, Bennett, Foster, Owens & Watts, Orlando, for appellants.
    George L. Harrell II, of George L. Harrell, P.A., Fort Myers, for appellees Pine Island Fruit Corp., John and Lillian Rauch, and William and Jean lies.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appel-lee Sapp.
   LEHAN, Judge.

Plaintiff stockholders appeal the final judgment which did not give them their requested relief of voiding a contract entered into by the corporation for the sale of real property. We affirm.

The appellee corporation is composed of six stockholders, two of whom are the appellants and four of whom are appellees. The other appellee, Christopher Sapp, is the purchaser under the disputed contract for sale of real property. The corporation was formed in 1960 for the purpose of acquiring approximately ninety acres of land on Pine Island in Lee County.

This cause of action arose out of a disagreement which began in 1980 when appel-lee stockholders Rausch and lies decided that the real property should be sold. The contract with appellee Sapp resulted. Appellants disagreed with the decision to sell to Sapp and instituted this lawsuit. Appellants’ main contentions were that the sales price did not adequately represent the fair market value of the property and that certain statutory requirements concerning the sale of substantially all of a corporation’s assets had not been properly complied with.

The trial court agreed with appellants that the provisions of section 607.241, Florida Statutes (1981), regarding procedures for the sale of all the assets of a corporation had not been complied with. However, the court found that the majority stockholders had corrected any deficiencies in procedure by the subsequent use of procedures under section 607.394, which concerns actions taken by shareholders without a shareholders’ meeting. The court declined to set aside the sale to Sapp on the grounds of corporate procedural deficiencies. We agree with the trial court’s findings on this issue and with the trial court’s decision declining to set aside the sale. We disagree with appellants contention that compliance with section 607.394 does not avoid the necessity for a board of directors’ resolution and written notice to shareholders required by section 607.241.

Appellants contend that the contract price for the sale to Sapp was lower than the fair market value of the land. Although there was conflicting testimony concerning the fair market value, we cannot say that the trial court erred in determining that the consideration called for in the contract was not totally inadequate in relation to fair market value.

Purchaser Sapp executed a promissory note for the contract price. The note" states that it will become due and payable sixty days after the corporation gives Sapp written notice that he has right of possession and marketable title to the property. The facts that the promissory note has no definite due date and does not bear interest do not ipso facto mean under the facts of this case that the note does not constitute consideration for the sale. We cannot say in this case that the trial court had no basis to find that the sale was in effect a cash deal.

Section 607.247 provides that a shareholder who dissents from a proposed corporation action and who otherwise complies with the provisions of that section has the right to be paid the fair market value of his shares. The trial court in this case awarded appellants one third of the contract sales price plus interest and costs. Appellants contend on appeal that one third of the sales price does not adequately represent the fair market value of their shares. We cannot agree. The property which was being sold under the disputed contract constituted the sole asset of the corporation. As noted above, the trial court found that the contract sales price adequately represented the fair market value of the property. It cannot be said, therefore, that the sales price did not also represent the fair market value of the shares owned by appellants, who had a one third interest in the corporation.

As to appellants’ remaining contention, we find no basis on which to award attorney’s fees to appellant.

It is clear from the record in this difficult case that the trial court made every effort to' accomplish justice and equity for the parties. Whether or not his final judgment was the perfect solution for all parties is not the point. We find that the trial court did not err under the law.

AFFIRMED.

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