author: DOUGLAS S. WEBB, Circuit Judge.

text:
    James R. DANIEL v. STATE.
    8 Div. 707.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Rehearing Denied Oct. 4, 1983.

      William Burgess, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   DOUGLAS S. WEBB, Circuit Judge.

Appellant was convicted in the circuit court, Madison County, of criminal trespass, second degree, and theft, second degree. On April 20, 1982, he was sentenced to 20 years’ imprisonment under the Habitual Offender Act.

The one issue presented on appeal is whether Mrs. Jefferson, owner of the property alleged to have been stolen, and Officer Guthrie, an investigator for the Huntsville Police Department, were competent witnesses for the purpose of establishing the reasonable market value of the property alleged to have been stolen.

The evidence in this case shows that on September 29,1981, Mary Jefferson left her residence at 3108 Holmes Avenue in Huntsville, Alabama, to go to work. Before leaving, she secured all entrances to her home. At approximately 11:15 that morning, Mack Yates, a witness for the State, heard the sound of a car backing up to a gate at the side of Mrs. Jefferson’s home. He then saw appellant and another man enter the house through the front door. While the witness was getting the tag number from the car, he saw one of the intruders standing at the door with something at his feet and Mr. Yates then called the police. When the police arrived Officer Randy Byars of the Huntsville Police Department observed two men approach the gate and walk toward a Pontiac automobile parked near the gate. Upon being ordered to stop by this officer one of the individuals broke and ran. The other party, the appellant, was apprehended at the driver’s side of the parked car. The trunk lid of this vehicle was up and the officer observed a color television sitting inside.

Mrs. Jefferson was called to the scene and she observed that her home had been ransacked, an air conditioner had been pushed out of a window and her ten-inch Sharp color television set had been placed in a garbage bag outside the fence by the parked car. In addition, she observed that her stereo system had been moved from her living room to the floor at the back door of her home. Mrs. Jefferson also noted one of her television sets sitting in the trunk of appellant’s automobile.

Mrs. Jefferson testified that she bought the Quasar television set, found in the trunk of appellant’s car, approximately seven years before for $500. Mrs. Jefferson testified that the Sharp color television set, found near the fence in the garbage bag, was a gift from her boyfriend and that he paid $300 for this set approximately three years before this incident. Further testimony from this witness indicated that she would not sell this television set for less than $300 because it was a good set. Mrs. Jefferson further testified that she bought her stereo set and paid $750 for it three years before and that if she sold this stereo outfit on September 29, 1981, the date in question, she would not expect to sell it for less than $400. This witness further testified that she had had the occasion to shop around before and after September 29, 1981, to ascertain the price of television sets similar to hers and of stereo outfits similar in nature to her stereo and that if she were going to sell her Quasar television set on the open market she would have expected to receive $250 for this set. She testified that the condition of these items was excellent or good.

Later this witness testified that while such estimates might constitute a guess on her part, they were based upon her experience in dealing with such goods.

Phil Guthrie, a police investigator for the city of Huntsville, testified that he had been a burglary investigator for almost three years and that since entering this field he had investigated some 75 to 80 cases a month. He further testified that many of the burglaries and thefts he investigated involved personal property of a nature similar to that taken from the home of Mrs. Jefferson. This officer testified that he had had occasion to ascertain the fair market value of items similar to those involved in this case, including items of the same age and brand. Officer Guthrie stated that based upon his experience in the past and based upon his investigation of this particular case, he judged that the fair market value of the items involved in the Jefferson burglary would be as follows: $500 for the Quasar television set; $300 for the Sharp television set; and $400 for the stereo component system.

Defense counsel objected to the testimony of Mrs. Jefferson and Officer Guthrie upon the ground that neither of these witnesses had the experience or qualifications to testify to the fair market value of the property involved. At the conclusion of the state’s case, defense counsel moved to exclude the evidence on the basis that the state had failed to prove a prima facie case. This motion was denied by the trial court and appellant appeals from his conviction.

Under the statutory law of this state it is provided:

“Direct testimony as to the market value is in the nature of opinion evidence; one need not be an expert or dealer in the article but may testify as to value if he has had an opportunity for forming a correct opinion.” Title 12-21-114, Code of Alabama 1975.

The statute clearly provides that a witness need not be an expert or dealer in an article, but may testify as to value if he has had an opportunity of forming a correct opinion. This is necessarily opinion evidence and not conclusive even when uncon-tradicted. If the valuations appear to be unreasonable, the estimate as to value may be discarded entirely.

The question of whether or not a witness has had an opportunity to form a correct opinion is a preliminary question to be passed upon by the court and is largely a matter within its discretion. This discretion will not be reviewed except in cases where it is clear that the ruling was unjust. Morris v. State, 25 Ala.App. 494,149 So. 359 (1933). The competency of a non-expert witness is a question for the trial court. Whetstone v. Caudle, 54 Ala.App. 299, 307 So.2d 697 (1975), Tucker v. Houston, 216 Ala. 43, 112 So. 360 (1927). The degree of opportunity that the witness may have had for forming an opinion goes to the weight of the evidence and not to its admissibility. Blount County v. Campbell, 268 Ala. 548, 109 So.2d 678 (1959).

As observed by the appellee in the instant case, the trial court properly allowed Mrs. Jefferson to testify as to the value of her televisions and her stereo because the owner of such property may testify to the value of such property without other qualifications where it is shown that such owner had the opportunity to form a correct opinion. The rationale behind this general rule is that the fact of ownership itself renders the owner competent to testify to such value. C. Gamble, McElroy’s Alabama Evidence, § 128.11 (3d ed. 1977).

By Mrs. Jefferson’s testimony, data was supplied upon which the jury could assess value. Lasley v. State, 418 So.2d 193 (Ala.Cr.App.1982). Such evidence is viewed in light of the knowledge and experience of the jury, which factors are to be relied upon by the jury in determining the true value of the property in question. State v. Crawford, 277 Ala. 568, 173 So.2d 109 (1965).

While jurors may not infer the existence of value from an inspection of the article itself, or from a description of it by witnesses, since this requires the jurors to become witnesses, Mitchell v. State, 24 Ala. App. 570, 139 So. 109 (1932), jurors may assess value upon a basis provided by circumstantial evidence. In this case Mrs. Jefferson was clearly familiar with the purchase prices, ages, past use and conditions of the specified items. In addition, Mrs. Jefferson testified that sometime before September 29, 1981, and since that date she had had occasion to shop around to ascertain the prices and values of television sets and stereo sets similar in nature to the ones she owned. Such testimony clearly indicates that this owner was familiar with the purchase prices, ages, past use, condition and what like sets were bringing on open market.

The opinion of Mrs. Jefferson was substantiated by the testimony of Officer Guthrie, an investigative officer perfectly familiar with the value of such property in his line of work. This officer testified that in his opinion the property of Mrs. Jefferson was in good condition and that in his past experience of investigating burglaries and thefts for some three years he had had occasion to ascertain the fair market value of items similar in nature, condition, age and brand to those involved in the Jefferson burglary. When questioned by the court as to what function he played in ascertaining the value of such items in conjunction with his job for various items of such property that were allegedly stolen, this officer testified that he had to ascertain the value of such items from time to time and that this was accomplished by checking with local pawn shops in the Huntsville area and used appliance stores after observing the age of such items.

As stated by the court in the case of Lasley v. State, supra,

“Just as the corpus delicti of the crime charged and the defendant’s criminal agency may be established by circumstantial evidence, Stewart v. State, 350 So.2d 764, so the value of stolen property may be proven by circumstantial evidence. 52A C.J.S. Larceny § 133 (1968).”

We hold that the evidence “as to what the stolen property cost at the time it was purchased by its owner,” and “the serviceability of the property at the time it was allegedly stolen,” and “the age of such property” furnished an adequate if not substantial basis for a finding by the jury that the property in question was worth more than $100. Johnson v. State, 374 So.2d 417 (Ala.Cr.App.1979).

The foregoing opinion was prepared by Hon. DOUGLAS S. WEBB, Circuit Judge, temporarily on duty on the court pursuant to Section 12-2-30(b)(6), Code of Alabama 1975; the Court has adopted his opinion as its own.

The judgment of the circuit court is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Timothy BUTLER v. STATE of Alabama.
    4 Div. 200.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    James Curtiss Bernard, Phenix City, for appellant. .
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Timothy Butler was indicted for robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment” and the trial judge set sentence at life imprisonment in the penitentiary under the provisions of the Alabama Habitual Offender Act.

On January 31, 1983, John Parrish was robbed at the Seale Bay Gas Station in Russell County. A black male pulled a gun on Parrish and demanded his money. Parrish gave the man approximately $200.00 from the cash register, and his billfold which contained about $10.00. The robber was wearing a white ski mask over his face and had a silver pistol. He also took Parrish’s gun.

On February 10,1983, Laura Bradley was robbed in Lil Mack’s Grocery in Russell County. A black male entered the store and demanded the money. She gave him $250.00 or $300.00. The robber wore unusual clothing and carried a silver plated pistol.

Officer Herbert Parker of the Russell County Sheriff’s Office went to the home of Margaret Sanks Horace with an arrest warrant for the appellant. Parker told her he wished to search the house for the appellant for which she gave her consent. The appellant was found hiding under some clothes behind a couch in one of the bedrooms. Parker found a wallet containing several hundred dollars under the couch and a chrome plated .25 pistol on the couch.

The gun found was identified as similar to the one used in the two robberies and Parrish’s gun was also recovered.

Johnny Lee Matthews testified that the appellant was in the area of Lil Mack’s Grocery at the time of the robbery and was wearing clothes similar to those that Bradley described to the police officers.

I

The appellant contends the trial court erred by allowing the State to consolidate the -two robberies. Rule 15.3(a), Temporary Rules of Criminal Procedure allows joinder of two offenses if they (1) are of the same or similar character, (2) are based on the same conduct or are otherwise connected in their commission or (3) are alleged to have been part of a common scheme or plan. Clearly this was a proper case for joinder. The offenses are the same and are based on the same type of conduct by the same offender. Therefore, we hold the trial judge properly granted the State’s motion to consolidate the two cases.

II

The appellant asserts reversible error was committed by the admission of evidence of stolen property which was found in the vicinity of the appellant at the time of his arrest.

Officer Parker had reason to believe the appellant was in-Mrs. Horace’s home and had a right to enter her home and effectuate the appellant’s arrest. Hollenquest v. State, 394 So.2d 385 (Ala.Cr.App.1980) writ denied, Ex Parte Hollenquest, 394 So.2d 389 (Ala.1981).

Furthermore, Officer Parker testified Mrs. Horace consented to the search. Once the arrest was made, Parker certainly acted properly in searching the immediate area around the appellant.

Therefore, we find no error in the admission of the stolen items into evidence at trial.

III

The appellant’s argument that his sentence under the Habitual Offender Act is in violation of the United States Constitution is without merit.

This court has repeatedly held that the Habitual Offender Act is not violative of the United States Constitution and does not constitute cruel and unusual punishment. Watson v. State, 392 So.2d 1274 (Ala.Cr. App.1980), cert. denied, 392 So.2d 1280 (Ala. 1981).

IV

The appellant contends that allowing testimony concerning the identification line-up is reversible error. We do not agree.

First, defense counsel never made a motion to suppress the identification at issue. Secondly, while there was never a positive identification of the appellant at the trial, or during the line-up, any issue concerning the identification of the appellant was an issue for the jury which they properly resolved.

We have examined the record and find it free of error. Therefore, for the reasons stated above, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges' concur.


text:
    Bruce DeWayne CASEY v. STATE of Alabama.
    8 Div. 882.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Clark E. Johnson, III, Arab, for appellant.
    Charles A. Graddick, Atty. Gen., and Ronald C. Forehand, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Bruce DeWayne Casey was indicted for robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975.

The appellant plead guilty to the reduced charge of attempted robbery in the first degree. The trial judge sentenced the appellant to life imprisonment in the penitentiary according to the provisions of the Alabama Habitual Offender Act.

I

The only issue the appellant raises on appeal is whether the trial court erred by denying the appellant’s motion for a psychiatric examination. The trial judge held a hearing on the motion to determine if there existed a bona fide doubt as to the appellant’s competency to stand trial which would require a sanity determination hearing. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), Pierce v. State, 52 Ala.App. 422, 293 So.2d 483 (1973). See also § 15-16, 21, Code of Alabama 1975.

The couple, with whom the appellant lived, testified that the appellant had an uncontrollable temper, was immature and was a loner. They stated he sometimes exhibited abnormal and erratic behavior by his severe mood changes. After the hearing, the trial judge stated that:

“... although Mr. Casey may be short-tempered, irritable, surly, and so forth, there has been no showing to the Court that there is reasonable grounds to believe — any reason to believe that he is incompetent to assist counsel in the trial of the case, nor that he is mentally ill or mentally deficient.”

After a complete review of the record here presented on appeal, and since the trial judge was in the best position to first determine the appellant’s competency, as above stated, we are of the opinion that the trial judge did not abuse his discretion in denying appellant’s motion. Richardson v. State, 354 So.2d 1193 (Ala.Cr.App.1978), Holland v. State, 376 So.2d 796 (Ala.Cr.App.1979), cert. denied, 376 So.2d 802 (Ala.1979).

Therefore, this conviction is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    The FLORIDA BAR In Re AMENDMENT TO INTEGRATION RULE OF THE FLORIDA BAR (Political Activities of the Bar).
    No. 61424.
    Supreme Court of Florida.
    Sept. 22, 1983.
    Robert T. Westman, Cocoa, for Palmer W. Collins, William C. Potter, Lealand L. Lovering, James F. Russo, Jr., Marcia L. Ramsdell, George L. Clapham, Jere E. Lo-ber, Joan H. Bickerstaff, Myron M. Stevens, Neil J. Buchalter, John Antoon, Bruce T. McKinley, Hale Baugh, Edward M. Jackson, George Ritchie, Lloyd Campbell, John Minot, Kendall T. Moran, Lewis R. Pearce, Lester Lintz, Joyous D. Parrish, Gregory A. Popp, Leonard Spielvogel and Leon Stro-mire, petitioners.
    William O.E. Henry, President, Lakeland, Gerald F. Richman, President-elect, Miami, John F. Harkness, Jr., Executive Director, Tallahassee, of The Florida Bar; Frank Newman, Chairman, Legislative Committee, Miami, and Rayford H. Taylor, Legislative Counsel, Tallahassee, for respondent.
   PER CURIAM.

A petition to amend the Integration Rule of The Florida Bar, by adding the following provision to section 1, article III:

The Board of Governors shall not engage in any political activity on behalf of The Florida Bar nor expend money or employ personnel for such purpose,

was filed in this Court by twenty-five members of The Florida Bar. The Florida Bar News published the proposal and oral argument was set and held. All interested parties were given the opportunity to proffer comments. The Florida Bar filed a response to the petition. The petition and the response are the only record we have.

The “political activities” of the Board of Governors on behalf of The Florida Bar were called into question once before, In re Florida Bar Board of Governors’ Action, 217 So.2d 323 (Fla.1969). There, members of The Florida Bar petitioned this Court to determine the propriety of the Board of Governors publicly advocating the adoption of the 1968 Florida Constitution and expending funds for that purpose. This Court denied that request in a per curiam opinion. We likewise deny the instant petition.

It is true that freedom of association is a right protected under the first and fourteenth amendments. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958). But, that right is not absolute. Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 637, 46 L.Ed.2d 659 (1976); United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 567, 93 S.Ct. 2880, 2891, 37 L.Ed.2d 796 (1973); Konigsberg v. State Bar of California, 366 U.S. 36, 49, 81 S.Ct. 997, 1005, 6 L.Ed.2d 105 (1961). A state may justify a constitutional intrusion into an individual’s freedom of association when there is a compelling state interest present. Buckley v. Valeo; United States v. O’Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968). To achieve that compelling interest, the means the state may employ are examined in terms of being “germane” to that interest. Abood v. Detroit Board of Education, 431 U.S. 209, 235, 97 S.Ct. 1782, 1799, 52 L.Ed.2d 261 (1977). See also Arrow v. Dow, 544 F.Supp. 458 (D.N.M.1982); Falk v. State Bar, 411 Mich. 63, 305 N.W.2d 201 (1981).

As stated in the Preamble of The Florida Bar Integration Rule, the purpose of The Bar is:

“To inculcate in its members the principles of duty and service to the public, to improve the administration of justice, and to advance the science of jurisprudence."

(emphasis supplied). Clearly, the improvement of the administration of justice and the advancement of the science of jurisprudence is a compelling state interest. As noted by the United States Supreme Court,

We recognize that the States have a compelling interest in the practice of professions within their boundaries .... The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been “officers of the courts.”

Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2016, 44 L.Ed.2d 572 (1975) (footnotes omitted). Since there is a compelling state interest, what remains to be determined is whether or not the political activities in dispute are indeed “germane” to that interest. We find that they are. Petitioners cite to us no specific activities by the Board of Governors with which they disagree nor any particular program or type of “political activity” to which they object. Nevertheless, we may take as representative the following activities of The Bar, noting that some are directed toward the Florida Legislature, some toward the citizens of the state and some toward the executive branch of the United States Government:

(a) The Florida Bar actively assisted in efforts to revise the Florida Constitution in 1968, and thereafter, actively sought approval by the citizens of the State.
(b) The Florida Bar actively supported in 1971 and 1972 the revision of Article V of the Florida Constitution before the Florida Legislature and the citizens of this State.
(c) The Florida Bar recently actively supported before the Florida Legislature amendments to Article V of the Florida Constitution to restrict and adjust the jurisdiction of the Florida Supreme Court, and thereafter, encouraged the citizens of Florida to approve such amendment.
(d) The Bar supported the establishment of the District Courts of Appeal, and thereafter, actively sought approval of the constitutional amendments by the citizens of this State.
(e) The Florida Bar actively sought the amendment to the Florida Constitution providing for merit retention of appellate judges not only in the Legislature but with the citizens of the State.
(f) The Florida Bar actively supported the creation of the Judicial Qualifications Commission to provide a mechanism for the review and discipline of members of the judiciary.
(g) In 1980 and 1981, The Florida Bar was actively involved with the Internal Revenue Service and the Federal Reserve Board in seeking approval of the “Interest on Trust Accounts” program.
(h) The Florida Bar also actively supported the creation of Florida Legal Services, Inc. before the Florida Legislature.

Response of The Florida Bar at 4-5. Are these activities on the part of the Board of Governors of The Florida Bar germane to the improvement of the administration of justice and to the advancement of the science of jurisdiction? We hold that they are. As this Court said in its opinion integrating The Florida Bar in 1949:

“[The Bar] is not a compulsory union but a necessary one to secure the composite judgment of the bar on questions involving its duty to the profession and the public.”

Petition of Florida State Bar Association, 40 So.2d 902, 908 (Fla.1949). All the above-enumerated political activities are closely related to lawyers’ “duty to the profession and the public,” synonyms, certainly, for the improvement of the administration of justice and the advancement of the science of jurisprudence.

We remind petitioners that the Board of Governors has adopted a comprehensive legislative policy and procedure, Standing Board Policy 900. The significance of this legislative policy to the instant petition is that “[n]either The Florida Bar nor any of its committees or sections may take a position on legislation either as a proponent or opponent unless it is determined by the Board of Governors that the legislation is related to the purposes of The Florida Bar as set forth in the Integration Rule.” Standing Board Policy 900 § 9.10(a). As a further safeguard, the Board of Governors, the legislation committee, and the executive committee allow any interested person to appear before it in support of or in opposition to any legislative proposal being considered. Id. § 9.11(b). Petitioners have made known to this Court no individual who has been refused the opportunity to present his argument to any of the groups. Indeed, in some instances arguments have been presented to all three.

Finally, petitioners are made cognizant of the fact that any attorney “is still free to voice his own views on any subject in any manner he wishes. He can do this even though such views be diametrically opposed to the position taken by the unified bar of his state.” In re Unification of the New Hampshire Bar, 109 N.H. 260, 266, 248 A.2d 709, 713 (1968). This may take the form of working within The Bar itself or its committees or it may be through external means. But he is never forced to adhere to or proclaim any political view or engage in any personally-repugnant political activity.

We therefore hold that, as limited by the standing board policy on legislation, the political activities of the Board of Governors of The Florida Bar, including the expending of money and employing of personnel, are germane to the compelling state interest in the improvement of the administration of justice and the advancement of the science of jurisprudence and hence constitutionally permissible. The instant petition to amend the Integration Rule to prohibit such activities is therefore denied.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDonald and EHRLICH, JJ., concur.

ADKINS, J., dissents.


author: PER CURIAM. OVERTON, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Harvey Ronald KENNEDY, Respondent.
    No. 61069.
    Supreme Court of Florida.
    Oct. 6, 1983.
    Patricia J. Brown, Bar Counsel, Tampa, for complainant.
    Harvey Ronald Kennedy, in pro. per.
   PER CURIAM.

This disciplinary proceeding is before us to review a referee’s report recommending that respondent be suspended from the practice of law during the period of his federal probation and until such time as he successfully passes the ethics portion of the Florida Bar Examination. The Florida Bar has filed a petition for review, asking this Court to reject the referee’s recommendation and instead disbar the respondent. We have jurisdiction. Art. V, § 15, Fla. Const.

While serving as vice president of a savings and loan association, respondent transferred funds belonging to the association into an account he established under a fictitious name. Respondent claims that he did this to reimburse himself for extra services he was providing. Respondent was indicted by a federal grand jury for devising a scheme to obtain money by false and fraudulent pretenses. He pled guilty to this offense and was placed on probation for three years.

The Florida Bar filed a Notice of Felony Conviction with this Court, and we suspended respondent from the practice of law on February 15, 1981. Subsequently The Florida Bar filed a complaint, initiating a disciplinary proceeding. The referee found that respondent had breached fiduciary duties in violation of Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(1), (3), (4), and (6). Apparently because respondent had never been disciplined and because he exhibited remorse, the referee recommended that respondent be suspended for the period of his federal probation and until such time he successfully passes the ethics portion of the Florida Bar Examination.

We approve the referee’s finding of professional misconduct. We adopt the referee’s recommended discipline in part. Respondent shall be suspended from the practice of law for the period of his federal court-ordered probation and until he shall have passed all parts of the Florida Bar Examination. Moreover, respondent’s suspension shall continue until he establishes restoration of his civil rights.

It is so ordered.

BOYD, Acting C.J., and McDONALD, EHRLICH and SHAW, JJ., concur.

OVERTON, J., dissents with an opinion.

OVERTON, Justice,

dissenting.

I disagree with the discipline imposed by the majority opinion. The record in my view requires disbarment.


text:
    THE FLORIDA BAR, Complainant, v. Craig A. JOHNSON, Respondent.
    No. 62814.
    Supreme Court of Florida.
    Oct. 6, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and John B. Root, Jr., Bar Counsel, Orlando, for complainant.
    No appearance, for respondent.
   PER CURIAM.

This disciplinary proceeding is before us on the complaint of The Florida Bar and the report of the referee recommending that respondent be found guilty of violating Disciplinary Rules 1-102(A)(3), 1-102(A)(4), and 1-102(A)(6), for forging his wife’s signature to three promissory notes and making false financial statements to a bank. The referee recommended that respondent be suspended from the practice of law for a period of three years and thereafter until he shall prove his rehabilitation as provided in Integration Rule 11.10(4). Neither the Bar nor the respondent has petitioned for review. We have jurisdiction. Art. V, § 15, Fla. Const.

We agree with the findings and recommendations of the referee. The suspension shall be effective November 7, 1983, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. Costs are assessed against respondent in the amount of $587.42.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


author: EHRLICH, Justice. ALDERMAN, Chief Justice,

text:
    Donald L. WOLLARD, Petitioner, v. LLOYD’S AND COMPANIES OF LLOYD’S, Respondents.
    No. 62857.
    Supreme Court of Florida.
    Oct. 6, 1983.
    Tod Aronovitz of Marks, Aronovitz & Lei-noff, Miami, for petitioner.
    William McCarthy of Fowler, White, Burnett, Hurley, Banick & Strickroot, Miami, for respondents.
   EHRLICH, Justice.

This cause is before this Court because of direct and express conflict between the holding of the Third District, Lloyd’s and Companies of Lloyd’s v. Wollard, 420 So.2d 940 (Fla.3d DCA 1982), and decisions of all four other district courts of appeal. Gibson v. Walker, 380 So.2d 531 (Fla. 5th DCA 1980); Smolder v. Ford Life Insurance Co., 361 So.2d 222 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 458 (Fla.1979); Cincinnati Insurance Co. v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974); Employers’ Liability Assurance Corp. v. Royals Farm Supply, Inc., 186 So.2d 317 (Fla. 2d DCA 1966). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the holdings of the majority of the district courts of appeal and so quash the holding of Wollard, and disapprove American Home Assurance Co. v. Keller Industries, 347 So.2d 767 (Fla. 3d DCA 1977), cert. dismissed, 367 So.2d 1124 (Fla. 1979), upon which it relies.

The facts of this case are analogous to those in the cases cited from the other districts. Wollard suffered a loss and brought a claim against his insurer, Lloyd’s and Companies of Lloyd’s, which denied coverage. Wollard retained an attorney and filed suit. On the eve of trial, the parties agreed to a settlement of the claim but stipulated that the matter of any award of attorney’s fees would be submitted to the trial court. The trial court awarded Wol-lard attorney’s fees and costs. Lloyd’s appealed and the district court reversed, stating as the controlling rule of law: “A negotiated settlement between an insured and his insurer does not entitle the insured to attorney’s fees pursuant to Section 627.428, Florida Statutes (1979).” 420 So.2d at 941.

The Third District first adopted this rule in Keller Industries, interpreting the statute to require entry of a judgment in favor of the insured on the claim under the insurance policy as a condition precedent to the award of attorney’s fees. Thus, in the absence of a judgment in favor of the insured, the appellate court ruled that the trial court is without jurisdiction to award attorney’s fees.

The Third District acknowledged the decision of the Fourth District in Cincinnati Insurance Co. v. Palmer. The Fourth District quoted the language of the statute but reasoned:

On the other hand, it is neither reasonable nor just that an insurer can avoid liability for statutory attorney’s fees by the simple expedient of paying the insurance proceeds to the insured or beneficiary at some point after suit is filed but before final judgment is entered, thereby making unnecessary the entry of final judgment.. .. ■ We think the statute must be construed to authorize the award of an attorney’s fee to an insured or beneficiary under a policy or contract of insurance who brings suit against the insurer after loss is payable even though technically no judgment for the loss claimed is thereafter entered favorable to the insured or beneficiary due to the insurer voluntarily paying the loss before such judgment can be rendered. After all, such voluntary payment is the equivalent of a confession of judgment against it.

297 So.2d at 99.

We agree for the reasons expressed by the Fifth District in adopting the holding of Palmer.

[T]he statutory obligation for attorney’s fees cannot be avoided simply by paying the policy proceeds after suit is filed but before a judgment is actually entered because to so construe the statute would do violence to its purpose, which is to discourage litigation and encourage prompt disposition of valid insurance claims without litigation.

Gibson v. Walker, 380 So.2d at 533.

When the insurance company has agreed to settle a disputed case, it has, in effect, declined to defend its position in the pending suit. Thus, the payment of the claim is, indeed, the functional equivalent of a confession of judgment or a verdict in favor of the insured. Requiring the plaintiff to continue litigation in spite of an acceptable offer of settlement merely to avoid having to offset attorney’s fees against compensation for the loss puts an unnecessary burden on the judicial system, fails to protect any interest — the insured’s, the insurer’s or the public’s — and discourages any attempt at settlement. This literal requirement of the statute exalts form over substance to the detriment of public policy, and such a result is clearly absurd. It is a basic tenet of statutory construction that statutes will not be interpreted so as to yield an absurd result. Dorsey v. State, 402 So.2d 1178 (Fla. 1981); State v. Webb, 398 So.2d 820 (Fla.1981); Austin v. State ex rel. Christian, 310 So.2d 289 (Fla.1975).

The Third District, in Keller Industries, attempted to distinguish the situation then before it from that addressed by the Fourth District in Palmer by pointing out that Keller Industries had been dilatory in the prosecution of the claim and the impetus toward settlement had come from the insurance company being sued. Such is clearly not the case between Wollard and Lloyd’s, but even if it were, we think the issue has more bearing on the reasonableness of attorney’s fees to be awarded rather than on the prevailing insured’s entitlement thereto.

Accordingly, we quash the holding of the Third District in Wollard and in so doing we disapprove Keller Industries and approve the holdings of the other district courts of appeal.

It is so ordered.

ADKINS, BOYD, OVERTON, MCDONALD and SHAW, JJ., concur.

ALDERMAN, C.J., dissents with an opinion.

ALDERMAN, Chief Justice,

dissenting.

As a matter of policy, I could agree with this result. I dissent because the express language of the statute appears to require a contrary result.

      . 627.428 Attorney fee.—
      (1)Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
      (2) As to suits based on claims arising under life insurance policies or annuity contracts, no such attorney fee shall be allowed if such suit was commenced prior to expiration of 60 days after proof of the claim was duly filed with the insurer.
      (3) Where so awarded, compensation or fees of the attorney shall be included in the judgment or decree rendered in the case.

      . The Fifth District in Gibson does not expressly address the requirement that the insurance company unreasonably withhold payment under the policy as a condition precedent to the award of attorney’s fees. Recognition of this threshold issue is implicit, however, in the district court’s instruction on remand that the trial court inquire anew into the necessity of the legal services rendered as well as their reasonable value. 390 So.2d at 533.


author: EHRLICH, Justice.

text:
    STATE of Florida, Petitioner, v. James Richard SCOTT, Respondent.
    No. 63146.
    Supreme Court of Florida.
    Oct. 6, 1983.

      Jim Smith, Atty. Gen. and James P. McLane, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Ellen Morris, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.
   EHRLICH, Justice.

We once again find ourselves caught in the backwash of our decision in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), this time asked to determine the procedural due process requirements which attach to the correction of a Villery -invalidated split sentence.

In 1980, Scott was sentenced to six years’ imprisonment with the last three years suspended so that he could serve them on probation. At that time, such a sentence was legal and commonly imposed. In 1982, after Villery was handed down, he filed a pro se motion to have the sentence vacated pursuant to that holding. Without granting a hearing, the trial court issued an order vacating the original sentence and imposing six years’ imprisonment.

On appeal, the Fourth District found that Scott’s due process rights had been violated because he had not had the opportunity to be present or to be represented by counsel at the new sentencing and certified as a question of great public importance the following:

When a defendant has been given a split sentence probation contrary to the case of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981) and when same is corrected upon the defendant’s application, is it required that such defendant be present at the time the order is corrected?

Scott v. State, 439 So.2d 222, 223 (Fla. 4th DCA 1983). We answer in the affirmative and so approve the holding of the district court. .

The state contends that Florida Rule of Criminal Procedure 3.850 waives the prisoner’s right to be present and represented by counsel at the time the corrected sentence is imposed. That rule provides that a prisoner in custody under sentence of a Florida court may file a motion in that court to correct an illegal sentence and that the court, upon finding the motion meritorious,

shall vacate and set the judgment aside and shall discharge the prisoner or resen-tence him or grant him a new trial, or correct the sentence as may appear 'appropriate.
A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.

(Emphasis supplied.)

The state’s reading of the rule overlooks the plain meaning of its language. The court is authorized to entertain the motion and decide whether or not relief is warranted on the issues raised in the motion. The prisoner is not entitled to be present or represented during the consideration of the merits of the motion. However, once the court has determined that the sentence was indeed illegal and the prisoner is entitled to a modification of the original sentence or the imposition of a new sentence, the full panoply of due process considerations attach. Walker v. State, 284 So.2d 415 (Fla. 2d DCA 1973).

This must especially be true in the post- Villery correction of sentences. Unlike most illegal sentences being corrected, the pre- Villery split sentence was legal when imposed, and the court imposing the split sentence had chosen that particular combination of incarceration and probation as offering the best means of punishing and rehabilitating the prisoner. When that sentence was invalidated by the decision of this Court, the trial court was forced to review all the considerations which led to the selection of the split sentence, and to fashion a new sentence which would achieve the same goals. Nor has the plight of the trial court seeking to impose a new sentence been an easy one, fraught as it is with constitutional challenges and considerations of post-sentencing infractions which would allow a material increase in the sentence, pursuant to North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See, e.g., Beech v. State, 436 So.2d 82 61,925 (Fla.1983). It would be wasteful of the court’s time and of the limited resources of the appellate system to deny the sentencing judge the benefit of contemporaneous objections to a sentence and the concomitant opportunity to correct errors at the sentencing hearing.

Unarguably, the prisoner to be sentenced is facing a critical stage of the criminal proceedings, whether the sentence to be imposed is the immediate result of adjudication of guilt or the result of a successful Rule 3.850 challenge. Thus, a sentencing hearing is mandatory, Florida Rule of Criminal Procedure 3.720, and the prisoner is entitled to show legal cause why sentence should not be pronounced and to submit evidence relevant to the sentence. The indigent prisoner is entitled to appointment of counsel at sentencing. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967).

We therefore agree with the Fourth District Court of Appeal that the prisoner being resentenced under a post-Villery sentence correction is “entitled to be present at the time of such correction in the same manner and to the same degree as ... when initially sentenced.” Scott, at 223 (footnote omitted.) Accordingly, the opinion of the district court is approved.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, MCDONALD and SHAW, JJ., concur.


author: WALDEN, Judge.

text:
    James Richard SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 82-524.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 1983.
    Richard L. Jorandby, Public Defender and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   WALDEN, Judge.

This appeal reflects the not uncommon circumstances where a prisoner (Scott) obtains, via Florida Rule of Criminal Procedure 3.850, a correction of an order imposing split sentence probation according to the requirements of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981).

Originally sentenced in January, 1981, to six years in State Prison with the last three years suspended so that Scott could be placed on probation, the new sentence imposed in February, 1982, provided for a sentence of six years imprisonment. Scott appeals from the order imposing the new sentence. We reverse and remand with directions.

The gravamen of Scott’s dispositive appellate point centers upon the fact that Scott was not afforded a hearing and was not present with counsel, or given such opportunity, at the time the new sentence was imposed. Is such required? We answer in the affirmative.

Rule 3.850, supra, contains this language, If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant him a new trial or correct the sentence as may appear appropriate.
A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. [Emphasis added.]

which language supports the State’s position to the effect that it was not necessary for Scott to be present. Regardless, Thacker v. State, 185 So.2d 202 (Fla. 3d DCA 1966); Walker v. State, 284 So.2d 415 (Fla. 2d DCA 1972); and McCrae v. State, 400 So.2d 175 (Fla. 5th DCA 1981), have held that it is fundamentally necessary for a defendant to be present when being resen-tenced. Even though these opinions do not mention the contrary language contained in Rule 3.850, supra, and its predecessor, we believe that it must be presumed that they were aware of it and chose to believe that resentencing is a critical step entitling a defendant to be present despite a contrary procedural rule.

The federal rule dealing with attacks on sentences, 28 U.S.C.A. § 2255 (1949), contains language identical to Florida’s Rule 3.850 as stated above. However, Williamson v. United States, 265 F.2d 236 (5th Cir.1959), in dealing with a resentencing under 28 U.S.C.A. § 2255 (1949), while citing certain exceptions, held, “Where a person convicted of a criminal offense or offenses is to be resentenced, as was the case here, the presence of the defendant is as necessary as it was at the time of the original sentence.” We think it is desirable to have like federal and state provisions interpreted uniformly, where possible.

We note in passing that there are or have been different methods used by the trial courts in imposing the split sentence probation alternative, a situation that might prove to be confusing in initially attempting to determine if a particular resentencing entitles the prisoner to be present. However, we believe these differences, although recognized, have been melded and made inconsequential by the pronouncement of State v. Jones, 327 So.2d 18 (Fla. 1976).

We are further persuaded in favor of our conclusion by the language of Villery, supra, and this particularly:

For the reasons expressed in this opinion, we hold that incarceration, pursuant to the split sentence alternatives found in sections 948.01(4) and 948.03(2), which equals or exceeds one year is invalid. This applies to incarceration as a condition of probation as well as to incarceration followed by a specified period of probation. We further hold that this decision applies retroactively. Accordingly, one who has been given a split sentence probation contrary to the mandate of this decision is entitled upon application to have the illegal order corrected. In correcting the order, the trial court has the option either of modifying the order to make it legal or of withdrawing it and imposing a sentence of imprisonment. [Emphasis added.]

Moreover, depending on the terms of the original sentence and whether a condition of probation has been violated, the sentencing court is faced with several alternatives that will or may have a significant impact upon a defendant in terms of the period that he may be incarcerated. These alternatives are spelled out in Villery, supra, as follows:

However, unless a condition of probation is determined to have been violated, the court may not extend the term of probation either with or without incarceration, nor may the court impose a sentence of imprisonment for a period of time in excess of the original total term of probation. If a condition of probation is found to have been violated, the court may modify or continue the probation or may revoke the probation and impose any sentence which it might originally have imposed before placing the defendant on probation.

We hold that defendants who are having their split sentence probation sentence corrected under the requirement of Villery, supra, are entitled to be present at the time of such correction in the same manner and to the same degree as they were entitled when initially sentenced.

Pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), we respectfully certify to the Supreme Court of Florida for resolution of the following question which we deem and certify to be of great public importance:

When a defendant has been given split sentence probation contrary to the case of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107, (Fla.1980) and when same is corrected upon the defendant’s application, is it required that such defendant be present at the time the order is corrected?

The sentence of six years imprisonment contained in the order dated February 18, 1982, is reversed. The cause is remanded for sentencing with Scott, appellant, being present. Such new sentence shall clearly give credit for time served both before and after the initial sentence ordered on January 9, 1981.

Reversed and remanded for further proceedings consistent herewith.

DOWNEY and BERANEK, JJ., concur.

      . As a caveat, there are instances where a sentence may be corrected under Florida Rule of Criminal Procedure 3.850 without the necessity of the presence of defendant. Such instances usually involve mechanical recalculations of credit time. See Williamson v. United States, 265 F.2d 236 (5th Cir.1959); Bruner v. State, 398 So.2d 1005 (Fla. 1st DCA 1981) and Matthews v. State, 408 So.2d 781 (Fla. 2d DCA 1982).
      We also note that under federal practice a defendant’s presence is not required at a reduction of his sentence under Fed.R.Crim.P. 35. See Fed.R.Crim.P. 43(c)(4). Since it would be dicta, we decline to set forth our views as to whether such would be allowable and meet due process standards under Florida practice inasmuch as Florida has no such rule.


author: BASKIN, Judge.

text:
    CONCRETE EQUIPMENT COMPANY, INC., Appellant, v. UNITED STATES LEASING CORPORATION, Appellee.
    No. 82-1836.
    District Court of Appeal of Florida, Third District.
    May 31, 1983.
    Rehearing Denied Oct. 12, 1983.
    Carey, Dwyer, Cole, Eckhart, Mason & Spring and Michael Spring, Miami, for appellant.
    Britton, Cohen, Kaufman & Schantz and J. Robert Olian, Miami, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

This appeal questions the correctness of a summary judgment entered by the trial court. In Count I of the two-count complaint, appellee sought to replevy a leased computer or, alternatively, to obtain damages. In Count II, appellee alleged a breach of its leasing contract, claiming entitlement to damages based upon the default clause contained in the contract. The trial court granted summary judgment in favor of appellee, awarding damages, costs, and interest in the sum of $34,116.20. We reverse.

The final judgment cannot be sustained if it was based upon the replevin claim because the affidavit and the letter filed in opposition to the motion for summary judgment present a material issue of fact as to whether the property was detained. If, however, the final judgment was based upon Count II, it must be reversed because the amount awarded exceeds the remedies authorized by the default clause contained in the lease. In order to invoke paragraph 21(a)(v), allowing the lessor to “pursue any other remedy at law or in equity,” United States Leasing was required to allege and prove not only a breach, but the actual damages it incurred as a result of the breach as well. Poinsettia Dairy Products v. Wessel Co., 123 Fla. 120, 166 So. 306 (1936). The summary judgment was entered before the necessary proof was established.

Reversed and remanded for further proceedings.

      . 21. DEFAULT, (a) If Lessee fails to pay when due any rent or other amount required herein to be paid by Lessee, or if Lessee fails to perform any other provision hereof within 10 days after Lessor shall have demanded in writing performance thereof, or if for any other reason Lessee makes a bulk transfer of furniture, furnishings, fixtures or other equipment or inventory, or if Lessee makes an assignment for the benefit of creditors, whether voluntary or involuntary, or if a petition is filed by or against Lessee under the Bankruptcy Act, or if Lessee has breached any other lease or agreement between Lessee and Lessor, Lessor shall have the right to exercise any one or more of the following remedies:
      (i) Lessor may recover from Lessee all rent and other amounts then due and as they shall thereafter become due hereunder.
      (ii) Lessor may take possession of any or all items of Equipment, wherever same may be located, without demand or notice, without any court order or other process of law and without liability to Lessee for any damages occasioned by such taking of possession. Any such taking of possession shall not constitute a termination of this lease.
      (iii) Lessor may recover from Lessee, with respect to any and all items of Equipment, and with or without repossessing Equipment, the sum of (1) all rent and other amounts due and to become due, less a prepayment credit for rent not yet due at the time of payment or judgment, whichever is earlier, equal to the product of the number of months remaining in the current term of this lease at said time, multiplied by the total rent not yet due at said time, multiplied by two tenths of one per cent (.2%); and (2) the reversionary value of Equipment at the end of the current term which for purposes of this paragraph shall be 10% of the total rent as set forth in paragraph 9 above; provided, however, that upon repossession or surrender of Equipment, Lessor may sell or otherwise dispose of Equipment with or without notice and on public or private bid, and apply the net proceeds thereof (after deducting all expenses, including, attorney’s fees, incurred in connection therewith), to the sum of (1) and (2) above. In the event Lessor is unable to sell or otherwise dispose of Equipment within a reasonable time, Lessor may recover from Lessee an amount not less than the sum of the rent and other amounts as set forth in (1) above and all expenses, including attorney’s fees, incurred in taking possession of Equipment.
      (iv) As to any item or items of Equipment with respect to which this lease is terminated by Lessor, Lessor may recover from Lessee as to each said item the worth at the time of such termination of the excess, if any, of the amount of rent reserved herein for said item for the balance of the term hereof over the then reasonable rental value of said item for the same period of time.
      (v) Lessor may pursue any other remedy at law or in equity.
      The validity of the default clause has not been challenged. Whether a default constitutes a penalty or liquidated damages is a question of law to be decided by the court. Paradis v. Second Avenue Used Car Co., 61 So.2d 919 (Fla. 1952). In Poinsettia Dairy Products v. Wessel Co., 123 Fla. 120, 166 So. 306 (1936), the supreme court held a similar clause to be a penalty, stating:
      In stipulating that the damages for breach of the contract shall be the balance of the unpaid purchase price; and that plaintiff, upon such breach, may regard the contract as terminated and sue for the balance of the purchase price, which is all that could have recovered if the entire contract had been performed, the amount stipulated as ‘liquidated damages’ is easily excessive ... and should be regarded as a ‘penalty’ ....

        Id. at 309.
      Comparable rent acceleration clauses were examined in Chandler Leasing Division v. Florida-Vanderbilt Development Corp., 464 F.2d 267 (5th Cir.), cert. denied, 409 U.S. 1041, 93 S.Ct. 527, 34 L.Ed.2d 491 (1972) and Krenek v. Wang Laboratories, Inc., 583 S.W.2d 454 (Tex.Civ.App.1979). In Chandler the court ruled the default clause not in violation of Florida public policy.
      The Krenek court held that the clause constituted a penalty under Texas law. The court’s considerations in Krenek are similar to the considerations expressed by the Florida Supreme Court in Paradis and Poinsettia. For a discussion of the viability of rent acceleration clauses see 5 A. Corbin Contracts § 1065 (1964 and Kaufman Supp.1982); see also American Lease Plan v. Ben-Kro Corp., 508 S.W.2d 937 (Tex.Civ.App.1974); Electrical Products Corp. v. Williams, 117 Cal.App.2d 813, 256 P.2d 403 (1953). But see Puritan Leasing v. August, 16 Cal.3d 451, 128 Cal.Rptr. 175, 546 P.2d 679 (1976) (no policy reason for not applying real property law to chattel lease). Compare A. Corbin Contracts § 1039 A (Kaufman Supp. 1984) (real property lease more like contract than conveyance of real estate).
      The default clause in the case before us provides the lessor the right to accelerate the rent in the event of a breach of this contract and, surprisingly, upon breach of any other lease between Concrete and United States Leasing! Another provision authorizes the lessor to retake possession of the leased equipment without terminating the lease.. Furthermore, a re-versionary clause requires an additional payment of 10% of the total rent of the contract over and above the repossession and rent acceleration. Recovery of the item possessed, in addition to receiving all rental payments, may constitute a double recovery. See Monsalvatage and Co. v. Ryder Leasing, Inc., 151 So.2d 453 (Fla. 3d DCA 1963). But see Chandler. If the default clause were invalid, United States Leasing might be able to repossess and sue for damages which naturally flow from the breach.

      . As to how equity would enforce this contract, see Campbell Soup v. Wentz, 172 F.2d 80 (3d Cir.1948) (contract “carrying a good joke too far”).


author: PER CURIAM. HENDRY, Judge,

text:
    Lou Ann ANDREASEN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-955.
    District Court of Appeal of Florida, Third District.
    June 14, 1983.
    Rehearing Denied Nov. 9, 1983.
    Highsmith & Strauss and Philip Glatzer, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

This appeal is from a conviction after trial by jury on charges of grand theft.

The information alleges that defendant, in her capacity as Finance Director for the City of Opa Locka, between May 4, 1979 and October 19,1979, permanently deprived the city of cash, having a value of at least $100 but less than $20,000, in violation of Section 812.014, Florida Statutes (1981).

Procedurally, appellant was given a flawless trial. The challenges in this appeal go only to the sufficiency of the evidence to support the jury verdict. The issue as framed by appellant is whether the court erred by denying her motions for judgment of acquittal and for a new trial. The grounds for the motions, as further stated, were (1) the evidence at trial was insufficient to establish the corpus delicti of grand theft, and (2) the state’s case, based entirely on circumstantial evidence, failed to exclude every reasonable hypothesis consistent with innocence.

A detailed recitation of the facts is unnecessary; suffice it to say that the evidence of guilt pointed to the defendant to the exclusion of any other city employee. The state proved that the defendant had access to certain cash which was sent to her as Finance Director from the Department of Utilities; that instead of depositing the cash into appropriate accounts at Coral Gables Federal Savings and Loan Association, she diverted it elsewhere and then attempted to “cover-up” the missing cash by depositing into the Coral Gables Federal account four checks totalling $16,000 from the Clerk of the Circuit and County Courts of Dade County, which should have been deposited into an account at Florida National Bank; that she then improperly deposited seven other checks totalling approximately $16,-000 into the account at Florida National Bank to cover the $16,000 in circuit and county court checks. Appellant’s statements that she did not make certain improper deposits, was not present at work on the date of another questioned deposit, and had acted on the instructions of the city manager with reference to the handling of other receipts, were shown to be false testimony. The task of making bank deposits had formerly been that of the Opa Locka Police Department, but this practice was discontinued by appellant who then undertook to make the deposits herself.

The testimony came from a certified public accountant who audited the city’s financial records for the period in question, a state investigative accountant, and defendant’s co-workers. The investigative accountant testified that, based on defendant’s financial records which had been made available to him, her bank deposits and expenditures exceeded her salary earned during the same period by over $7,000. What proved to be the most damaging testimony to defendant was her own explanation of how she came to spend, during the period of the offense, more than she had earned. On direct examination she testified that she had received a $15,000 insurance settlement during the year. On cross-examination it was established that the proceeds from the insurance award were not paid until after the dates of her ostentatious cash expenditures.

The argument made here is similar to one rejected by the supreme court in Tibbits v. State, 146 Fla. 69, 200 So. 373, 374 (1941) where it was held:

[Defendant’s] explanation . .. was evidently not believed by the jury. They chose to believe that he appropriated ... money belonging to the City and sought to veil his criminal conduct behind an alleged . .. situation ... which allowed unknown persons an opportunity to steal the money without his knowledge, [cite omitted]. Circumstantial evidence is relied on by the state to prove that the appellant converted the allegedly embezzled funds to his own use...
The evidence submitted to the jury in regard to the financial condition of the appellant, his salary or income and his financial obligations, together with the testimony of all the witnesses, was sufficient, if the jury believed it, to sustain the verdict.

The court properly denied appellant’s motion for acquittal made at the conclusion of the state’s case. A defendant in a criminal prosecution, moving for a directed verdict of acquittal, admits facts in evidence adduced and every conclusion favorable to the state fairly and reasonably in-ferable therefrom. Victor v. State, 141 Fla. 508, 193 So. 762 (1939); Weldon v. State, 287 So.2d 133 (Fla. 3d DCA 1973), appeal dismissed, 298 So.2d 419 (Fla.1974); Dancy v. State, 284 So.2d 452 (Fla. 3d DCA 1973); Dixon v. State, 180 So.2d 681 (Fla. 2d DCA 1965), cert. dismissed, 188 So.2d 318 (Fla.), appeal dismissed, 188 So.2d 810 (Fla.1966). The test to be applied in reviewing the denial of a motion for acquittal is whether the jury might reasonably conclude that the evidence, assuming all of it to be true, fails to exclude every reasonable hypothesis but that of guilt. Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974). The trial court’s determination that there was sufficient evidence upon which a jury could find the defendant guilty is supported by the record. See Adams v. State, 138 Fla. 206, 189 So. 392 (1939). Further, the defendant’s false exculpatory statements, when considered as substantive evidence, as is permitted, see, e.g., United States ex rel. Royster v. McMann, 292 F.Supp. 116 (E.D.N.Y.1968), aff’d, 433 F.2d 1013 (2d Cir.1970); Spinkellink v. State, 313 So.2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976); Mackiewicz v. State, 114 So.2d 684 (Fla.1959), cert. denied, 362 U.S. 965, 80 S.Ct. 883, 4 L.Ed.2d 879 (1960); Brown v. State, 391 So.2d 729 (Fla. 3d DCA 1980), established guilt by overwhelming evidence.

The contention that the evidence at trial was insufficient to establish the corpus de-licti of grand theft is without merit.

Affirmed.

HENDRY, Judge,

dissenting.

I must respectfully dissent. At trial, the state offered evidence to show that Lou Ann Andreasen was Finance Director of the City of Opa Locka during the period in which the alleged crime was committed; that she had access to certain cash money which was sent to the City’s Department of Finance from the Department of Utilities; that Lou Ann Andreasen from May, 1979 through October, 1979, stole cash money from the City in lieu of depositing it into the appropriate accounts at the Coral Gables Federal Savings and Loan Association, and then attempted to “cover up” the missing cash by depositing four checks totalling approximately $16,000 which had been received by the City from the office of Richard P. Brinker, Clerk of the Circuit and County Courts, Dade County, Florida, into the Coral Gables Federal account where the cash money from the Department of Utilities was supposed to be deposited; and that she then attempted to cover up the missing Brinker checks by depositing seven other checks totalling approximately $16,000 into the City’s bank account at Florida National Bank where the Brinker checks were supposed to be deposited.

The state called as an expert witness Joseph Shore, C.P.A., who testified that after auditing the City’s financial records for the fiscal year 1978-1979, he discovered that approximately $44,000 was “unaccounted for”. Homer Cline, the state’s investigative accountant, testified, over the objection of counsel for the appellant, that his review of the City’s financial records for the fiscal year 1978-1979 revealed that an amount of cash money in excess of $16,000 was never deposited into the City’s bank accounts.

The state also presented testimony of coworkers of the appellant at the Department of Finance. Their testimony showed that they had the same access to the cash and checks as did the appellant. Cash and checks were held in the safe, sometimes for periods of a week or more, before deposits were made. The safe was kept unlocked during the day and was accessible to all employees of the department.

Mr. Cline testified from the limited financial records pertaining to the appellant that he had determined, based upon deposits in her bank account, that she had deposited and/or expended approximately $7,000 more than she had received from her salary during the period of the alleged crime.

At the conclusion of the state’s case, counsel for appellant moved the trial court for a judgment of acquittal on the grounds that the state had failed to establish the corpus delicti of the crime of grand theft and that in its purely circumstantial case against the defendant the state had failed to exclude every reasonable hypothesis consistent with her innocence because there was evidence showing that other persons could have stolen the funds she was charged with stealing. The motion for judgment of acquittal was denied.

The defendant put on her defense wherein testimony from bank personnel was adduced showing that other department employees, as well as the defendant, made bank deposits for the City at both banks during the period in which the alleged crime was committed.

The defendant took the stand and testified that she did not steal any money from the City of Opa Locka. She and other witnesses on her behalf explained the sources of income which she had in excess of her salary during the period in question. Specifically, the defendant testified that she had been repaid a family obligation by her brother of some $2,500, that she had deposited an insurance reimbursement check for her daughter’s hospitalization of approximately $1,000, that her ex-husband had sent her money to buy a ear and make car and insurance payments (her ex-husband also testified), and that both her son and his friend made weekly payments to her, often in cash, for their room and board. With the exception of the monies received by the defendant from her ex-husband, none of these sources of income had been considered by Mr. Cline in his investigation of the defendant’s finances.

Upon conclusion of the taking of testimony, the defendant renewed the motion for judgment of acquittal and the court again denied the motion. The jury, after hearing argument of counsel and the court’s charges, returned a verdict of guilty. The court entered judgment against the defendant and sentenced her to three years imprisonment in the state penitentiary. The defendant’s motion # for new trial, alleging, inter alia, error in denial of the motion for judgment of acquittal, was denied. This appeal followed.

It is appellant’s contention that since the state neither established a prima facie case of grand theft under section 812.014, Florida Statutes (1979), nor excluded all reasonable hypotheses consistent with her innocence, the trial court erred in denying her motions for judgment of acquittal and for a new trial.

I agree that the circumstantial evidence presented before the trial court was not sufficient to establish a prima facie case of grand theft against the appellant and failed to exclude the reasonable hypothesis that one of the other employees of the Finance Department could have committed the crime with which she was charged.

The statute provides in pertinent part:

812.014 Theft.—
(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) If the property stolen is of the value of $20,000 or more, the offender shall be guilty of grand theft in the first degree ...
(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.

(Emphasis supplied).

The appellant has further contended that in order to make out a prima facie case, it was necessary for the state to prove that a certain sum of money was stolen from the City. I agree that it was necessary to prove that monies were indeed stolen, and not merely unaccounted for, as the testimony of Mr. Shore indicate^. See, e.g., United States v. Khandjian, 489 F.2d 133, 139 (5th Cir.1974) (evidence of a shortage of $320 in accounts of teller working under the defendant was insufficient to establish embezzlement by the defendant; it was not shown that the bank had in fact lost $320, nor that the missing $320 was stolen from the bank). However, I find that Mr. Cline’s testimony that an amount of money in excess of $16,000 never made its way into the City’s bank accounts, together with other evidence of the subsequent cover-ups, was sufficient to establish that cash money was stolen from the City. This testimony was also sufficient to establish the degree of the offense charged under the statute. To make out a case of second degree grand theft under section 812.014(2)(b)l, it was only necessary that the state prove that the property stolen had a value in excess of $100. Nelson v. State, 127 Fla. 677, 173 So. 841 (Fla.1937); Rivers v. State, 307 So.2d 826 (Fla. 1st DCA); cert. denied, 316 So.2d 285 (Fla.1975).

The sole remaining inquiry, and the most critical one, is whether or not the evidence proved beyond a reasonable doubt that it was the defendant who was responsible for the theft. If the state failed to meet its burden of proving this necessary element of the offense charged beyond a reasonable doubt, the case should not have been submitted to the jury and a judgment of acquittal should have been granted. Ponsell v. State, 393 So.2d 635 (Fla. 4th DCA 1981).

The legal standard to be applied in determining whether the circumstantial evidence presented was sufficient to support the defendant’s conviction was stated by the Florida supreme court in McArthur v. State, 351 So.2d 972 (Fla.1977) :

Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence ... In applying the standard, the version of events related by the defense must be believed if the circumstances do not show that version to be false.

351 So.2d at 976, n. 12. (Citations omitted).

In reviewing the denial of the defendant’s motion for judgment of acquittal in this case, it must be determined whether the inferences reasonably to be drawn from the evidence are not only consistent with guilt of the accused, but inconsistent with every reasonable hypothesis of innocence. Hernandez v. State, 305 So.2d 211 (Fla. 3d DCA 1974), cert. denied, 315 So.2d 192 (Fla. 1975); Duran v. State, 301 So.2d 486 (Fla. 3d DCA 1974). The test which is to be applied has been repeatedly set forth by the appellate courts of this state:

The test to be applied on a motion for judgment of acquittal and review of that denial is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt, but rather whether the jury might reasonably so conclude.

Green v. State, 408 So.2d 1086, 1089 (Fla. 4th DCA 1982). Accord Zuberi v. State, 343 So.2d 664 (Fla. 3d DCA), cert. denied, 354 So.2d 988 (Fla.1977); Hernandez v. State, supra; Duran v. State, supra. The Fifth Circuit has similarly held in United States v. Black, 497 F.2d 1039, 1041 (5th Cir.1974):

[I]n a case based only on circumstantial evidence, the appellate task is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence. Whether the evidence be direct or circumstantial, the matter of the defendant’s guilt is for the jury to decide unless the court concludes that the jury must necessarily have had a reasonable doubt.

(Citations omitted). In making this determination, it should be noted that on motion for judgment of acquittal all facts in evidence and all reasonable inferences favorable to the state which may be drawn therefrom are considered to be admitted by the defendant. Pressley v. State, 395 So.2d 1175 (Fla. 3d DCA), petition for review denied, 407 So.2d 1105 (Fla.1981); McKnight v. State, 341 So.2d 261 (Fla. 3d DCA), cert. denied, 348 So.2d 953 (Fla.1977); Hanks v. State, 305 So.2d 817 (Fla. 3d DCA 1974).

A thorough examination of all of the evidence relative to the chain of circumstances through which the cash money was removed and its removal covered-up, impels my conclusion that the evidence, while it may have been strongly suggestive of the defendant’s guilt, was, at the same time, not inconsistent with the reasonable hypothesis of innocence that another employee of the Department of Finance was responsible for the theft. Or, otherwise stated, the jury must necessarily have had a reasonable doubt as to the defendant’s guilt.

As previously mentioned, all of the employees of the Department of Finance, as well as the defendant, had access to the cash and checks held in the safe pending deposit. Furthermore, other employees, as well as the defendant, made bank deposits. It was not established that the defendant made the four deposits wherein the Brinker checks were substituted for cash, although it was shown that one of those deposits, on August 20, 1979, was made by the defendant. However, the significance of this fact is greatly diminished by other evidence showing that the persons, including the defendant, who made deposits were merely acting as couriers and were unaware of the contents of the deposits; that the deposits were generally prepared by another department employee; and that problems with the deposits not agreeing with the deposit slips frequently occurred, and when they did, that employee had to be telephoned to straighten out the problem. Neither was it significant, in attempting to implicate the defendant in the substitutions of the Brink-er checks for cash, that deposits were made to her personal account at Coral Gables Federal on three of the dates on which the Brinker checks were deposited there, since there was evidence showing that personal transactions for the defendant, as well as for other department employees, were routinely taken care of by whoever took the deposit to the bank.

Perhaps the most incriminating “link” in the chain of circumstances brought forth by the state was in connection with the substitution of the other checks for the Brinker checks. The evidence showed that the defendant prepared the deposit slip dated October 16,1979, which listed the four Brinker checks for deposit in the City’s Florida National Bank account, when in fact seven other checks were deposited in their stead. However, under close examination, the details of this transaction fail to point conclusively to the defendant’s guilt.

The defendant testified that she had asked a co-worker to hold the Brinker checks in the safe because she was unsure what account they were to be deposited into. She further stated that in view of the close of the City’s fiscal year on September 30, 1979, she subsequently determined that the checks should be deposited. She then made out the deposit slip listing the four checks and asked her co-worker to get them out of the safe and also told the bookkeeper to make sure he took the deposit to the bank. Significantly, the state never adduced any testimony from either the coworker or the bookkeeper as to whether or not the defendant had made these requests of them, or what their responses had been. The defendant was asked if this co-worker ever spoke to her about any problem with making this deposit, and replied that she had not. The defendant’s version of the events surrounding this transaction was not shown by any other circumstances to be false, and must therefore be believed. McArthur v. State, supra.

Since all the evidence, taken together, cannot be said to exclude every hypothesis but that of the defendant’s guilt, and the jury must therefore necessarily have entertained a reasonable doubt as to whether the defendant was responsible for the offense charged, in my view it was error to deny the defendant’s motions for judgment of acquittal. I would therefore reverse.

      . Suggestion for writ of prohibition denied sub nom McArthur v. Nourse, 358 So.2d 132 (Fla. 1978), vacated and remanded, 438 U.S. 902, 98 S.Ct. 3119, 57 L.Ed.2d 1145 (1978), suggestion for writ of prohibition granted, 369 So.2d 578 (Fla.1979) (double jeopardy prohibited retrial of defendant where reversal of conviction based on ground of insufficient evidence).


author: FOXMAN, Associate Judge.

text:
    Conrad C. PALUMBO, Appellant, v. Janet R. PALUMBO, Appellee.
    No. 82-1019.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1983.
    Rehearing Denied Oct. 19, 1983.
    William Osborne and John M. Robertson, of Robertson, Williams, Duane, Lewis & Ranson, P.A., Orlando, for appellant.
    John M. Cain, Orlando, for appellee.
   FOXMAN, Associate Judge.

This was a twelve year marriage with no children being born. At the time of trial the wife was 36, the husband 45. Both parties were healthy. The wife had no particular job skills. She was a high school graduate who at the time of marriage worked for the Playboy Club. For a short time during the marriage she worked as a restaurant hostess. The husband ran his own successful data retrieval business.

In reaching final judgment, the Trial Court added up the value of all assets and divided by two. The principal asset, the business, was left to the husband. The wife received the marital home, a duplex, one-half of a $30,000 account, a Cadillac, and one-half of the husband’s profit sharing account. As part of the wife’s one-half she received lump sum alimony of $102,615 payable at $855 per month for ten years. Over and above the equitable distribution the wife was awarded $750 per month rehabilitative alimony for four years.

The problem with the equitable distribution in this case was that the total sum to be distributed erroneously included separate property of the husband. Clearly the data retrieval business was the separate property of the husband. The business was started before the marriage, stock was owned in the husband’s name alone, the wife did not work in the business. Separate property of a spouse normally may not be included in an equitable distribution scheme. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) at 1201.

If the wife claims an interest in the husband’s separate property, she has the doctrine of special equity available to her. Ball v. Ball, 335 So.2d 5 (Fla.1976). In this case the wife’s complaint did contain a prayer for special equity, but no special equity was proved, nor any awarded. This Court is also aware that authority exists for a lump sum award of separate property if special reasons or need exist. McBride v. McBride, 424 So.2d 977 (Fla. 4th DCA 1983). No special reason or need was proved here.

The business must be backed out from the equitable distribution computation. This will affect of course not only the type and amount of distribution, but will affect the monthly income available to the wife because the monthly alimony payment of $855 will be altered. Accordingly, the case is remanded to the trial court for further proceedings in accordance with this opinion. The trial court may, in its discretion, receive further evidence.

REVERSED and REMANDED.

DAUKSCH and COWART, JJ., concur.


author: OTT, Chief Judge.

text:
    Milton B. BECKERMAN, Appellant, v. Robert GREENBAUM, as personal representative of the Estate of Bernard Greenbaum, d/b/a Bernard Greenbaum & Associates, a partnership, and Bernard Greenbaum & Associates, Inc., a corporation, Appellees.
    No. 82-1558.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1983.
    Rehearing Denied Oct. 10, 1983.

      Stephen C. Chumbris and Zala L. Forizs of Greene, Mann, Rowe, Stanton, Mastry & Burton, St. Petersburg, for appellant.
    Anthony S. Battaglia and Michael L. Hastings of Battaglia, Ross, Hastings, Dicus & Andrews, St. Petersburg, for appellees.
   OTT, Chief Judge.

This appeal essentially involves three questions: the allowance of certain “deductions” from gross profit as fairly contemplated by the contract of the parties; the admission of certain “supplemental records” as business records of appellees to establish such deductions; and the denial of prejudgment interest. We reverse as to certain of the deductions as indicated herein, the admission of the supplemental records as business records, and the denial of prejudgment interest.

In 1966 appellee partnership employed appellant to promote a specific office building complex with prospective commercial tenants. Pursuant to a written letter agreement appellant was to receive as additional compensation five percent of the net profits realized during the operation or upon a sale of the complex. The parties agree no profit was realized in the operation of the complex. The complex was ultimately sold on November 26, 1974. The gross profit from the sale was $1,008,137.

The written agreement of the parties, dated December 19, 1966, specified certain obligations either existing or contemplated which were to reduce the gross profit from the sale before computing the five percent of the net profit payable to appellant.

Following the sale of the complex, appellant demanded his five percent and an accounting as to the computations of the net profit pursuant to the agreement. Ap-pellees refused to pay or to furnish an accounting. Extensive and protracted litigation followed. The earlier phases of the litigation determined appellant was entitled to an accounting and to receive five percent of any resulting net profit and are not involved on this appeal.

The final judgment computed appellant’s five percent share based on a net profit of $320,834, but that judgment gives us no clue as to how the judge arrived at this figure. As well as we can determine, after a thorough review of the record and the briefs, the following items were deducted from $1,008,137 gross profits:

1. Advances from other projects $ 101,629
2. Loan 39,000
3. Bank account 6,605
4. Loan 53,440
5. Interest on item # 4 34,201
6. Architect and contractor fees 101,947
7. Interest on item # 6 23,866
8. Management fees 152,535
9. Interest on item # 8 41,892
10. Interest on $115,676 borrowed for taxes 46,616
11. Interest on $217,629 other advances 85.572
Total deductions $ 687,303

Appellant does not challenge items 2 and 3 on this appeal. He argues that the other deductions were improper.

Over objection by appellant, appellee was permitted to introduce into evidence a “computation of profit on sale” in support of its claim that all of the above deductions (and others) were proper. These records were prepared by appellee’s accountant in 1980 in anticipation of trial to summarize a transaction which occurred in 1974. We agree with appellant that these “supplemental records” do not qualify as business records and should have been excluded. § 90.803(6)(a), Fla.Stat. (1981). They were not prepared at or near the time of the sale and were prepared in anticipation of trial to support appellee’s position. Cf. National Car Rental Systems, Inc. v. Holland, 269 So.2d 407 (Fla. 4th DCA 1972).

To the extent that the above deductions were not reflected in any way in the business records or accounts of the partnership kept in the normal course of its operation or prepared in connection with or immediately following the sale, the question becomes whether such items are nevertheless adequately identified or fairly embraced in some provision of the letter agreement of the parties. Appellant cites no authority, and we find no merit in his contention that each item must not only be covered by some provision of the contract but also be contemporaneously entered or otherwise appropriately reflected in the books, records, and accounts of the partnership. If the agreement of the parties does not identify a deduction, it must be reflected in the business records of the business. However, we see no reason why agreed upon deductions should not be permitted, even if no books or business records at all are kept or maintained. Quite obviously appellant accepts the proposition — as we think he must — that the written agreement does not restrict the deductions to those specified therein — e.g., recording fees, documentary stamps, and other expenses of the sale were not specified. In the absence of some appropriate words of limitation in the agreement, the costs, expenses, and obligations incurred in the normal course of the operation and sale as established by competent evidence would be proper deductions. Apparently, some such deductions were, in fact, allowed in arriving at the gross profit figure.

Appellees argue that the following provisions of the letter agreements are broad enough to cover the items listed above:

After the [appellees] pay the following debts they owe to the following described companies or persons: Bernard Green-baum & Associates, Inc. to the “300 Building” in the amount of $53,440.00; a loan to the “300 Building” by Bernard and Florence Greenbaum in the amount of $39,000.00; ....
In addition to the above, there is the accrued interest to date plus any future advances that have to be made to meet the constant deficits we have had from time to time and expect in the future in interest, taxes, administrative, construction, improvement, and other operational costs.
⅜! * tfc ⅜: ⅜! ⅝:
There may be other future loans or borrowings and other advances that may have to be made from time to time to carry, operate, construct, lease and develop various aspects of the Complex.
In the event we sell the Complex, any amount in excess of said . .. obligations ... plus any future borrowings or advances to carry or operate the property as aforesaid we shall share’ with you the excess over and above said obligations and ... future loans, your profit sharing to be 5% of the net amount received after discharging all of the obligations . . . present and future, as aforesaid ....

Once appellant’s right to the accounting and the five percent of net profits was determined, the appellees had the burden of establishing each credit or deduction by competent and substantial evidence. See Smith v. American Motor Inns of Florida, Inc., 538 F.2d 1090 (5th Cir.1976). In this case, such credits must either be found in the business records and accounts of the appellees — the parties required to render the accounting — or sufficiently identified in the agreement of the parties.

We now turn to the specific contested deductions, beginning with item 1, “advances from other projects.” The office building complex in this case is but one of several projects promoted, owned, and operated by appellees. The business records established an operational deficit of $101,-629 at the time of its sale as to this specific complex but did not contain a note or other entry or identification of where the funds to cover the deficit were secured or when such advances were made. This deficit does appear as an offset to the profits from the other projects of appellees as evidenced by their partnership records and tax returns. This adequately evidences and documents that the advances were from appellees.

The loan in item 4 was specifically identified in the agreement as a debt to be paid before arriving at a net profit figure on the sale. Therefore, it need not be also recorded in the books and records of the complex. It is properly deductible even though no evidence other than the agreement was introduced substantiating its existence. The agreement was silent as to whether interest was to be paid on this loan. In keeping with “the general rule ... that a party is entitled to interest on an amount which he lends to another .. .,” we c'annot say' that the deduction of interest was improperly allowed by the trial judge, there being no indication of any agreement to the contrary. See generally 47 C.J.S. Interest and Usury § 12; 32 Fla.Jur.2d Interest and Usury § 2. However, the law will only imply a contract for the payment of interest at the legal rate, which in this case was six percent per annum. § 687.01, Fla.Stat. (1965). The trial court incorrectly allowed interest calculated at eight percent per annum. ■

Item 6, “architect and contractor fees,” and item 8, “management fees” are not noted or carried or otherwise entered in any of the appellees’ business records. Ap-pellees testified that the individual partners acted as architect and contractor and performed management services in connection with the office building complex. Absent a specific agreement to the contrary, a partner does not receive separate remuneration for services performed for the partnership. § 620.645(6), Fla.Stat. (1981). The references in the letter agreement to “future loans or borrowings ... to ... operate, construct, lease, and develop” the project is insufficient to justify deductions for services performed by individual partners. It follows that items 7 and 9 are also improper.

Appellant agreed to the deduction of a loan of $115,676 by Bernard Greenbaum & Associates, Inc., to the partnership for payment of taxes and interest, but he objects to an allowance of interest on this loan, listed as item 10. For the reasons previously stated in reference to item 5, we do not fault the trial judge for allowing the deduction of interest. However, it must be recalculated at the legal rate in effect at the time.

This brings us to item 11, which is puzzling. The trial court did not allow a deduction for the entire $217,629 “other advances” listed in appellees’ “supplemental records." Item 1 $101,629 is all the “advances” allowed and we assume it is a part of this $217,629 figure. As stated in our discussion of item 1, the $101,629 represents a transfer on the books of the partnership; in essence, a loan by the partnership to itself. While we held the partnership returns and records were adequate to establish that appellees actually made the advances, there is nothing to establish that such advances were made before the date the complex was sold. Appellees’ argument that the letter agreement allows it to charge interest on such a loan to itself is unconvincing, particularly when they establish no date interest should commence to run. Interest on the remainder of the $217,629 is obviously not a proper deduction when that remainder itself was not allowed as a deduction by the trial court. Consequently, we conclude appellees did not carry their burden of proving up any entitlement to interest on any part of the “advances from other projects.”

In summation, we reverse the final judgment insofar as it allowed items 6, 7, 8, 9, and 11 to be deducted in arriving at a net profit on which to calculate appellant’s five percent. Those deductions were not supported either by the books and records of the appellees or by the agreement of the parties. Item 5 and item 10 must be recalculated based on an interest rate of six percent per annum—the legal rate in effect up to the date of sale of the project.

As his final point on appeal, appellant argues he is entitled to an award of prejudgment interest. We agree that because this is an action based upon a breach of contract an award of prejudgment interest at the legal rate is proper. See Parker v. Brinson Construction Co., 78 So.2d 873, 874 (Fla.1975). We find this case analogous to Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754 (Fla. 2d DCA 1978). There, appellant agreed to perform architectual services for a fee based in part on a percentage of the construction costs. This court held that “[t]hough there was a bona fide question as to how much appellant was owed under the contract, once this issue was determined by the court appellant was due interest from the date of entitlement.” 356 So.2d at 756. Here, appellant’s five percent share of the net profits was due immediately upon sale of the building. The fact that there was a legitimate dispute concerning certain deductions from the gross profit did not render the amount un-liquidated. Cf. Tech Corp. v. Permutit Co., 321 So.2d 562 (Fla. 4th DCA 1975).

This case is REMANDED for entry of judgment consistent with this opinion.

SCHOONOVER and LEHAN, JJ., concur.

      . The “gross profit” of $1,008,137 is not explained or questioned on this appeal. It is, therefore, accepted as correct and presumably is that reflected by the books and records of the partnership and the sale and those deductions appellant agreed to.

      . We encourage the practice of setting out the method of computation in any dispute involving mathematical calculations.

      . The legal rate of six percent remained in effect during the entire period of the loan. Chapter 82-42, section 1, Laws of Florida, raised the legal rate of interest to twelve percent, effective July 1, 1982.


author: EVANS, VERNON W., Jr., Associate Judge.

text:
    Ella Mae HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 82-2241.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 1983.
    Rehearing Denied Oct. 26, 1983.
    Wilbur C. Smith, III, of Smith, Carta, Ringsmuth & Kluttz, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., Bartow, and Diane Barrs, Asst. Atty. Gen., Tampa, for appel-lee.
   EVANS, VERNON W., Jr., Associate Judge.

Having been convicted of a vehicular homicide under section 782.071, Florida Statutes (1981), the appellant presents four points for review on appeal, the most serious of which challenges the sufficiency of the evidence to support the conviction.

The accident which tragically took the life of a five year old child occurred when the appellant struck the deceased child and a playmate on Hunter’s Green Drive in Lee County, Florida. Appellant contends that the evidence presented to the jury was insufficient as a matter of law to establish that degree of recklessness in the operation of a motor vehicle required to sustain a conviction under the aforesaid statute. Section 782.071, Florida Statutes (1981), provides:

Vehicular Homicide. — “Vehicular homicide” is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree....

The evidence presented would have permitted the jury to find that the appellant was operating her vehicle in a residential area upwards of 50 miles per hour to 60 miles per hour and struck two small children playing in the roadway. The appellant testified that she never saw the children either before or after impact and suggested she might have been distracted by a movement of her child in the car. No drinking was involved and no mechanical defects were present in appellant’s vehicle.

The oft-repeated statement that excessive speed alone will not support such a conviction is heard once again. There were, however, a number of other factors or circumstances to be considered by the jury, in addition to excessive speed, as we have gleaned them from the record. These factors and circumstances include: (1) that it was a clear, dry day with good visibility; (2) that appellant was traveling on a level two-lane roadway more or less in the middle of the road; (3) that there were no obstructions to her view ahead in the form of parked vehicles, foliage or any other objects; (4) that she was traveling in an all-residential area described by one of the investigating officers as heavily congested with children; (5) that she was familiar with the area and roadway having traveled it on other previous occasions; (6) that the road was posted with both a 30-miles-per-hour speed limit sign and a “SLOW — CHILDREN PLAYING” sign; (7) that the presence of the children in the roadway was observed by several witnesses at a time when appellant was a substantial distance from them;' (8) that she failed to reduce the speed of her vehicle before or after striking the children and that the speed may have actually been increased after the collision as she left the scene; (9) that the appellant failed to exercise even the slightest degree of care to avoid the collision.

We are of the opinion that the substantial evidence presented of grossly excessive speed in a congested residential area when considered along with all the other factors and circumstances enumerated herein support the conviction of vehicular homicide. The other points raised by appellant for review have been considered and are found to be without merit.

The judgment of the conviction is AFFIRMED.

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