text:
    Dave YEOMANS and William Goldberg, Appellants, v. STATE of Florida, DEPARTMENT OF BANKING AND FINANCE, DIVISION OF SECURITIES, Appellee. Leslie RATTET and Southeast Energy Exchange, Inc., d/b/a The Oil and Gas Corporation of Colorado, Appellants, v. STATE of Florida, DEPARTMENT OF BANKING AND FINANCE, DIVISION OF SECURITIES, Appellee.
    Nos. 83-2733, 83-2945, and 83-2758.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Rehearing Denied Aug. 3, 1984.
    Herman T. Isis, Coral Gables, for appellants Yeomans and Goldberg; and Frank, Strelkow & Gay and Carl Schmitt, North Bay Village; Dill, Dill & McAllister, and John A. Hutchings, Denver, Colo., for appellants Rattet and Southeast Energy Exchange, Inc.
    Walter W. Wood, Tallahassee, and R. Michael Underwood, Orlando, and Tamara K. Nelson, Tallahassee, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Chief Judge.

Several of the respondents below seek review of an “immediate final” order entered against them by the State Comptroller in his capacity as head of the Department of Banking and Finance, Division of Securities. The order required that they cease and desist from selling “programs” or “packages” which involve applications for participation in lottery-type drawings for federal oil and gas leases then being conducted monthly by the United States Department of the Interior. The entire basis of the authority asserted by the Comptroller lies in the claim that the plan being offered by the appellants is an “investment contract” and therefore a “security” within the meaning of Sec. 517.021(15), Fla.Stat. (1981). We do not agree that this is the case and therefore reverse the order below.

The programs involved in this case are in all material respects identical to those considered in SEC v. Energy Group of America, Inc., 459 F.Supp. 1234 (S.D.N.Y.1978), which specifically held that they were not “securities” under provisions of the federal Securities Act which are indistinguishable from ours. We agree with, adopt and follow Energy Group in the instant case. It is neither profitable nor necessary to expend judicial resources by replicating, restating, or paraphrasing the reasoning in Energy Group with which we entirely agree. We do note, however, that it is in accord both with what are apparently the only other judicial decisions on the precise point, Vasquez v. Max Wilson, Inc., Case no. Civ. A. 77C3071 (N.D.Ill., Feb. 22, 1978); and Michigan Department of Commerce v. Engle, Blue Sky L.Rep. (CCH) 1171,540 (Mich.Cir.Ct.1979), and with the thrust of previous analogous opinions of this and other Florida courts in the securities area. Blacker v. Shearson Hayden Stone, Inc., 358 So.2d 1147 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1122 (Fla.1979); Rudd v. State, 386 So.2d 1216 (Fla. 5th DCA 1980), rev. denied, 392 So.2d 1380 (Fla.1981); Brown v. Rairigh, 363 So.2d 590 (Fla. 4th DCA 1978); see Villeneuve v. Advanced Business Concepts Corp., 730 F.2d 1403 (11th Cir.1984); Sunshine Kitchens v. Alanthus Corp., 403 F.Supp. 719 (S.D.Fla.1975). In our view, the scheme before us is more akin to an elaborate touting and bet-running service than a security. More formally put, it fails to meet any of the three prongs of the familiar test of SEC v. W.J. Howey Co., 328 U.S. 293, 301, 66 S.Ct. 1100, 1104, 90 L.Ed. 1244 (1946), let alone, as is required, all three.

On this basis, the order is reversed with directions that the proceeding be dismissed.

Reversed.

      . The order was entered on an entirely ex parte basis without taking testimony, avowedly pursuant to Sec. 120.59(3), Fla.Stat. (1981).

      . The system has since been suspended.

      . § 517.021(15), Fla.Stat. (1981):
      "Security" means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation, whiskey warehouse receipt or other commodity warehouse receipt, or right to subscribe to any of the foregoing; certificate of interest in a profit-sharing agreement or the right to participate therein; certificate of interest in an oil, gas, petroleum, mineral, or mining title or lease, or the right to participate therein; collateral trust certificate, reorganization certificate, preorganization subscription, or any transferable share, investment contract, or beneficial interest in title to property, profits, or earnings; interests in or under a profit-sharing or participation agreement or scheme, or any other instrument commonly known as a security, including an interim or temporary bond, debenture, note, certificate, or receipt for a security or for subscription to a security.
      The plans were admittedly not registered as securities under Sec. 517.07 and the appellants were not registered as dealers under Sec. 517.12. In addition, it was alleged — and denied — that false representations were involved in the actual sales of the programs. Secs. 517.301, 517.311. Obviously, none of these provisions apply if, as we hold, no "security” is involved.

      . At 459 F.Supp. 1237, the package involved there is described as follows:
      EGA offers the following services to its customers:
      1.A monthly listing of parcels it expects to be subject to BLM [Bureau of Land Management] public drawing, based on expirations of existing ten-year leases. This is a valuable service, EGA claims, because it gives EGA customers more time to select and enter noncompetitive bids on parcels than the normal five days between BLM listing and the entry deadline. If a parcel selected by a customer from EGA's list is not offered by BLM, EGA will substitute a parcel of equivalent value on the customer’s application.
      2. EGA claims to possess expertise in selecting parcels on which to bid, and lists in its monthly listing six to ten recommended parcels in each state, an amount that EGA will pay for each lease it recommends should that lease be won, and the expected number of applicants for each lease.
      3. EGA fills out and submits the BLM entry card on behalf of the customer.
      4. If a customer wins a lease, EGA pays the first year’s rental, with the understanding (not a legally-enforceable agreement) that it is to be repaid when the customer sells or assigns the lease or when the property produces oil or gas.
      5. EGA offers, if the customer requests the service, to notify the winner of any inquiries EGA receives concerning sale of the lease.
      6. EGA stands ready to purchase the lease from the winner at the price at which it valued the lease on the monthly listing.
      The distinction between that case and this are immaterial. We hardly think it makes a principled difference that the seller’s fee in Energy Group was $10, while the one involved here is $125, particularly in the light of the fact that the government’s filing fee was also raised from the $10 then in effect to $75. On the other hand, that under the present plan, the respondents agree only to contribute $25,000 to a successful bidder who does not secure a satisfactory offer for his lease, rather than, as in Energy Group, to purchase the lease outright, if anything militates against the conclusion that the present plan is a security.

      .We do not comment on whether, as is often said, these resources may be accurately characterized as either "precious” or "sparse.”

      . The appellee relies solely on the opinions of its administrative counterparts in other states, especially In re Overthrust Mineral Corp., Blue Sky L.Rep. (CCH) ¶ 71,849 (Wyo.Sec.Div.1983). It is to be noted, however, that even Overthrust states at 70,096:
      As a final matter concerning the general partnership interests offered by Contestants, it should be noted that none of three cases found and cited earlier, i.e., SEC v. Energy Group of America, Inc., 459 F.Supp. 1234 (S.D.N.Y.1978); Vasquez v. Max Wilson, Inc., Civ.A. 77C3071 (N.D.Ill. Feb. 22, 1978); and Michigan Department of Commerce v. Engle, 1978-81 Decisions, CCH Blue Sky Law Reports ¶ 71,540 (Mich.Cir.Ct.1979), which ruled that lease lottery services did not constitute securities, involved the use of general partnership interests.
      This fact alone clearly distinguishes the present case and seriously limits the applicability of those cases to the general partnership interests offered by the Contestants.
      Like Energy Group, but unlike Overthrust, no general partnership interests are involved in the case at bar.

      . The test of an investment contract, as formulated by the Court, is "whether the scheme involves [1] an investment of money [2] in a common enterprise with [3] profits to come solely from the efforts of others.” 328 U.S. at 301, 66 S.Ct. at 1104.

      . It is obvious that we do not decide whether the scheme is one which should be the subject of state authority of the type proposed here. As Energy Group says:
      ... whether these statutes are to be applied to a transaction is tested not by the desirability of regulation, but by whether such application will fulfill the statutory purpose of "compelling full and fair disclosure relative to the issuance of 'the many types of instruments that in our commercial world fall within the ordinary concept of a security'." Howey, supra, 328 U.S. at 299, 66 S.Ct. at 1103.
      459 F.Supp. at 1238.
      Moreover, even though our decision precludes the application of Florida’s securities law, if, as the appellee contends, fraudulent practices are involved, a whole panoply of civil and criminal remedies remain available for effective and timely prevention and punishment. E.g., Sec. 501.201, et seq., Fla.Stat. (1981) (Little FTC Act.)

      .We need not and do not pass upon any of the other grounds for reversal argued by the appellants, including the far from unsubstantial ones that the procedure involved below is not statutorily authorized in these circumstances, see State of Florida, Department of Banking and Finance, ex rel Lewis v. Standard Federal Savings and Loan Ass'n, 452 So.2d 105 (Fla. 1st DCA 1984); Commercial Consultants Corp. v. State of Florida, Department of Business Regulation, 363 So.2d 1162 (Fla. 1st DCA 1978); that the imposition and long-standing duration of the ex parte order deprived them of due process, see Aurora Enterprises, Inc. v. State of Florida, Department of Business Regulation, 395 So.2d 604 (Fla. 3d DCA 1981); and that the attempted regulation of transactions with customers who reside only outside of Florida contravenes the commerce clause. Art. I. Section 8, United States Constitution. See Edgar v. Mite Corp., 457 U.S. 624, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Louis H. ASTRIN, Appellant, v. The INTERNATIONAL BANK OF MIAMI, N.A., Appellee.
    No. 83-2936.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Rehearing Denied Aug. 3, 1984.
    Charles L. Neustein, Miami Beach, for appellant.
    Penzell & Diamond and Barry J. Clyman, Miami, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Credit Alliance Corp. v. Westland Machine Co., 439 So.2d 332 (Fla. 3d DCA 1983); Central Investment Associates v. Leasing Service Corp., 362 So.2d 702 (Fla. 3d DCA 1978).


text:
    CENTRAL COLD STORAGE, INC., Appellant, v. LEXINGTON INSURANCE COMPANY, Appellee.
    No. 84-41.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Rehearing Denied Aug. 3, 1984.
    Michael A. Nuzzo, Miami, for appellant.
    Hurt, Richardson, Garner, Todd & Ca-denhead and Robert L. Todd and Rex M. Lamb, III, and Henry D. Fellows, Jr., Atlanta, Ga., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Lexington issued an all risks insurance policy to Central Cold Storage for its refrigeration warehouse and processing plant and the contents therein. The policy provided insurance coverage for “all risks of direct physical loss or damage to the insured property from any external cause occurring during the period of this policy.” An ammonia leak occurred in the refrigeration system which resulted in Central Cold Storage incurring substantial damage to stored goods. Central made a claim which was disallowed based upon the fact that the incident was caused by internal causes and therefore not covered by the policy.

Central brought a declaratory and damage action against Lexington to which Lexington denied any liability. The record establishes that the leak was caused by the separation of a steel end-cap from a header pipe in part of the refrigeration system known as a refrigeration blower coil. The header and end-cap were located in a sealed refrigeration blower coil inside a steel shell which was inaccessible. These parts were non-wearing, non-accessible factory created parts built for a life time and had experienced no problems since the installation of the unit in 1969. • After the leak occurred the engineer, for the insured, welded the end-cap back on the header, pressure tested the system for other leaks and then “resumed normal operation”. The record also reveals that the system was functioning properly prior to the leak and nothing the company or any of its employees could have done could have caused this separation. We reverse.

The question of whether or not a particular insurance policy covers a certain risk is a question of law. We conclude under the language of the policy that the proper construction of the insurance contract in the instant case is to extend coverage for the loss. It is conceded that the ammonia was external to the goods in storage which were damaged. See and compare; N-Ren Corporation v. American Home Assurance Company, 619 F.2d 784 (8th Cir.1980); Contractors Realty Company, Inc. v. Insurance Company of North America, 469 F.Supp. 1287 (S.D.N.Y.1979). There is no claim for the damage to the compressor which would have been internal. Compare, Leonard Bros. Trucking Co., Inc. v. Fireman’s Fund Insurance Co., 227 So.2d 312 (Fla. 3d DCA 1969); Greene v. Cheetham, 293 F.2d 933 (2d Cir.1961); Avis v. Hartford Fire Insurance Co., 283 N.C. 142, 195 S.E.2d 545 (1973).

Therefore the final summary judgment under review be and the same is hereby reversed with directions to enter a summary judgment finding liability on the policy and to consider further proceedings as to the amount of damage.

Reversed and remanded with directions.

      . The policy reads in part as follows:
      “1. PERILS INSURED AGAINST: This policy insures against all risk of direct physical loss or damage to the insured property from any external cause occurring during the period of this policy except as hereinafter excluded.”


author: DAUKSCH, Judge.

text:
    Allen L. FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 83-10.
    District Court of Appeal of Florida, Fifth District.
    June 28, 1984.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a sentence as an habitual offender. See § 775.084(l)(a)2, Fla.Stat. Because the “prior felony” relied upon by the judge in enhancing appellant’s sentence was not yet final, it was improper to enhance the punishment. Joyner v. State, 158 Fla. 806, 30 So.2d 304 (1947); Garrett v. State, 335 So.2d 876 (Fla. 4th DCA 1976); Ward v. State, 332 So.2d 698 (Fla. 4th DCA 1976); Coleman v. State, 281 So.2d 226 (Fla. 2d DCA 1973); See also Ruffin v. State, 397 So.2d 277 (Fla.1981).

The sentence is vacated and this cause remanded for resentencing.

REVERSED and REMANDED.

COBB and SHARP, JJ., concur.

      . § 775.084(l)(a)2, Fla.Stat., states:
      The felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior felony, misdemeanor, or other qualified offense of which he was convicted, or within 5 years of the defendant s release, on parole or otherwise, from a prison sentence or other' commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later.


author: MILLS, Judge.

text:
    Betty LYONS, Appellant, v. CORONADO SPORTSWEAR and Insurance Company of North America, Appellees.
    No. AV-285.
    District Court of Appeal of Florida, First District.
    July 3, 1984.
    Gabriel H. Blumenthal of Blumenthal, Schwartz & Riley, Titusville, for appellant.
    F. Bradley Hassell of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellees.
   MILLS, Judge.

In this workers’ compensation appeal, Lyons contends the deputy commissioner erred in denying Lyons’ claim for wage loss benefits. We affirm.

The deputy denied the claim for three reasons. First, she found the claim barred by operation of Section 440.15(3)(b)3.a., Florida Statutes (1983). Second, she found Lyons’ failure to file job search forms precluded an award of wage loss benefits. Finally, she found the job search itself inadequate.

We find competent substantial evidence in the record supporting the deputy’s finding that Lyons’ job search was inadequate. We need not consider the other reasons given by the deputy for denial of the claim.

AFFIRMED.

SHIVERS and WIGGINTON, JJ., concur.


author: WIGGINTON, Judge.

text:
    STATE of Florida, Appellant, v. Clyde McPHADDER, Appellee.
    No. AV-419.
    District Court of Appeal of Florida, First District.
    July 3, 1984.
    Rehearing Denied July 26, 1984.
    Jim Smith, Atty. Gen. and John W. Tiede-mann, Asst. Atty. Gen., for appellant.
    Michael E. Allen, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellee.
   WIGGINTON, Judge.

The state appeals the trial court’s order striking statements made by an informant, Mae Campbell, on electronic recordings taped during three purported drug transactions in which appellee allegedly was present, on the ground that, due to her unavailability, informant Campbell would not be called as a witness by the state to testify at trial. We reverse.

We first address a jurisdictional question raised by appellee. Contrary to the contention of appellee, we find that pursuant to rule' 9.140(c)(1)(B), Florida Rules of Appellate Procedure, the state has properly raised its issue by appeal at this time. To preclude the state from bringing this appeal would undermine the rationale for the rule since the state would be unable to raise the question after trial if a verdict was entered in favor of appellee. The rule provides, in pertinent part:

(1) Appeals permitted. The state may appeal an order:
(A) * * *
(B) Suppressing before trial confessions, admissions or evidence obtained by search and seizure;
* * * (Emphasis supplied)

Although the question on appeal is not one involving a search and seizure issue, the evidence which was the subject of the order appealed was “obtained by search and seizure” and was suppressed before trial. Therefore, despite the procedural treatment of a similar appeal as a petition for writ of certiorari by our sister court in State v. Steinbrecher, 409 So.2d 510 (Fla. 3d DCA 1982), we find this question reviewable on direct appeal pursuant to rule 9.140(c)(1)(B).

Addressing the merits of the issue on appeal, the record indicates that prior to trial appellee moved to exclude the taped statements of Ms. Campbell on the ground that her statements are inadmissible hearsay since she will be unavailable at trial. However, the record shows that Ms. Campbell's statements were not being offered by the state to prove the truth of the matters she asserted thereon, but instead her statements were being presented into evidence for the purpose of showing that appellee engaged in the conversation with Ms. Campbell and took part in plans to supply illegal drugs to her. Therefore, her recorded statements are not hearsay and are admissible. See Breedlove v. State, 413 So.2d 1 (Fla.1982). Another eyewitness to the transactions is available to the state to make an in court identification of appellee. Since the taped statements of Ms. Campbell are not excludable on the basis of a hearsay objection, the trial judge erred in suppressing them.

REVERSED.

MILLS and SHIVERS, JJ., concur.


author: DANIEL S. PEARSON, Judge.

text:
    Otis Pierce REYNOLDS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-626.
    District Court of Appeal of Florida, Third District.
    July 3, 1984.

      Bennett H. Brummer, Public Defender and Marti Rothenberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski and Charles Fahlbusch, Asst. Attys. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Reynolds was convicted of aggravated assault with a firearm in violation of Section 784.021, Florida Statutes (1981), and display and use of a firearm in the commission of a felony (the aggravated assault) in violation of Section 790.07, Florida Statutes (1981). On appeal, he contends that he cannot lawfully be convicted of both offenses; that, in any event, the minimum mandatory three-year sentence imposed on the offense of display and use of a firearm in the commission of a felony is unauthorized; and that the prosecutor impermissibly commented on Reynolds’ right to remain silent, thus entitling the defendant to a new trial.

This court, relying on State v. Monroe, 406 So.2d 1115 (Fla.1981), and State v. Hegstrom, 401 So.2d 1343 (Fla. 1981), previously held that a defendant cannot be separately sentenced for the crimes of aggravated assault and display of a firearm during the commission of such aggravated assault “because the firearm charge is a lesser included offense of the felony.” Kindell v. State, 413 So.2d 1283, 1287 (Fla. 3d DCA 1982). We must, however, re-examine Kindell in light of the holding in Borges v. State, 415 So.2d 1265 (Fla.1982), reemphasized in State v. Gibson, 452 So.2d 553 (Fla.1984), “that the determination of whether two statutory offenses, charged on the basis of a single act or group of acts of the accused, are the same offense by reason of one being the lesser included offense of the other, is to be made by examining the statutory elements of the offenses rather than the allegations in the charging instrument or the factual elements of evidentiary proof presented at trial.” State v. Gibson, 452 So.2d at 556.

An aggravated assault is statutorily defined, in part, as an assault “with a deadly weapon without intent to kill.” § 784.-021(l)(a), Fla.Stat. (1981). The pertinent firearm statute makes it unlawful for one to display, use, threaten or attempt to use any firearm while committing or attempting to commit any felony. See § 790.07(2), Fla.Stat. (1981). In State v. Gibson, 452 So.2d 553, the court held that the offense of display or use of a firearm while committing a felony is not a lesser-included offense of armed robbery, because the statutory definition of the latter offense does not require the display or use, but merely the carrying of a firearm. Here, an aggravated assault, although manifestly requiring that the deadly weapon be displayed or used, does not require that the deadly weapon be a firearm. See, e.g., Williamson v. State, 92 Fla. 980, 111 So. 124 (1927) (motor vehicle); Lindsay v. State, 67 Fla. 111, 64 So. 501 (1914) (large stick); J.M.C. v. State, 331 So.2d 366 (Fla. 3d DCA 1976) (large stick); State v. Nixon, 295 So.2d 121 (Fla. 3d DCA 1974) (pocket knife); Johnson v. State, 249 So.2d 452 (Fla. 4th DCA 1971) (shoe); Colainni v. State, 245 So.2d 893 (Fla. 2d DCA 1971) (ballpeen hammer); McCullers v. State, 206 So.2d 30 (Fla. 4th DCA), cert. denied, 210 So.2d 868 (1968) (motor vehicle); Solitro v. State, 165 So.2d 223 (Fla. 2d DCA 1964) (motor vehicle). Therefore, each offense in the present case includes a constituent element which the other does not, and, under State v. Gibson, the offenses may be separately prosecuted and punished.

The defendant's contention that the trial court erred in imposing a three-year minimum mandatory prison term on the offense of display and use of a firearm in the commission of a felony is well taken. See § 775.087(2), Fla.Stat. (1981); Davis v. State, 392 So.2d 947 (Fla. 3d DCA 1980). This error may be rectified on remand by the imposition of a sentence on the aggravated assault count, none having been heretofore imposed, which sentence is to include a minimum mandatory three-year prison term.

We find no merit in Reynolds’ contention that the trial court erred in denying his motion for mistrial addressed to the prosecutor’s argument that the testimony presented by the State was “uncontradict-ed.” See White v. State, 377 So.2d 1149 (Fla.1979), cert. denied, 449 U.S. 845, 101 S.Ct. 129, 66 L.Ed.2d 54 (1980).

Affirmed in part; reversed in part, and remanded.

      . We have since learned from the later authority of Bell v. State, 437 So.2d 1057 (Fla.1983), that convictions as well as sentences for both the greater and lesser-included offenses are prohibited.


author: HENDRY, Judge.

text:
    Caridad MACIAS, Appellant, v. BANKERS INSURANCE COMPANY, Appellee.
    No. 83-1147.
    District Court of Appeal of Florida, Third District.
    July 3, 1984.
    Worley & Harnage and Henry H. Har-nage, Miami, for appellant.
    Richard M. Gale; Weinstein & Bavly, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   HENDRY, Judge.

Caridad Macias, plaintiff below, appeals from an adverse final judgment after a non-jury trial on the issue of automobile insurance coverage. The trial court found that appellant failed to give notice of the automobile accident and to provide proof of claim to appellee Bankers Insurance Company. As a result, the trial court found that appellee was presumed to have been prejudiced by this failure. We reverse on the basis that it is well settled in Florida that the defense of lack of notice and other breaches of a cooperation clause by an insured require a showing of substantial prejudice to the rights of the insurer. Ramos v. Northwestern Mutual Insurance Co., 336 So.2d 71 (Fla.1976); Donnell v. Industrial Fire & Casualty Insurance Co., 439 So.2d 974 (Fla. 3d DCA 1983); Travelers Insurance Co. v. Jones, 422 So.2d 1000 (Fla. 4th DCA 1982), rev. denied, 431 So.2d 990 (Fla.1983); United States Fidelity & Guaranty Co. v. Perez, 384 So.2d 904 (Fla. 3d DCA), rev. denied, 392 So.2d 1381 (Fla.1980). We remand so that appellee may make this showing, if it is able to do so. All other points are affirmed.

Reversed and remanded in part, affirmed in part.


text:
    Miguel TAVARES, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1757.
    District Court of Appeal of Florida, Third District.
    July 3, 1984.
    Raymond J. Takiff, Coconut Grove, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Tibbs v. State, 397 So.2d 1120 (Fla.1981); Talley v. State, 160 Fla. 593, 36 So.2d 201 (1948); Grimsley v. State, 304 So.2d 493 (Fla. 1st DCA 1974).


text:
    Robert E. CHAIT, Appellant, v. Joy N. CHAIT, Appellee.
    No. 83-2286.
    District Court of Appeal of Florida, Third District.
    July 3, 1984.
    Michael D. Felton, Coral Gables, for appellant.
    Melvin A. Rubin, Miami, for appellee.
    Before NESBITT and DANIEL S. PEARSON, JJ., and JOHN W. DELL, Associate Judge.
   PER CURIAM.

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


text:
    OFFSHORE MARINE, INC. and Pan Oceanic Marine, Inc., Appellants, v. Thomas KIERNAN, Appellee.
    No. 83-2505.
    District Court of Appeal of Florida, Third District.
    July 3, 1984.

      Joe N. Unger, Miami, for appellants.
    Rubin, Baum, Levin, Constant, Friedman & Bilzin, and Richard L. Allen, Miami, for appellee.
    Before NESBITT and JORGENSON, JJ., and FERRIS, JOHN G., Associate Judge.
   PER CURIAM.

AFFIRMED. See Chase Manhattan Bank v. S/D Enterprises Inc., 353 So.2d 131 (Fla. 3d DCA 1977); 34 Fla.Jur.2d, Liens, § 6 (1982).


author: PER CURIAM. FERGUSON, Judge

text:
    FINANCIAL & INVESTMENT PLANNING, INC., Appellant, v. Lionel LIEBERMAN, Appellee. Henry GHERMAN, Appellant, v. Lionel LIEBERMAN, Appellee.
    Nos. 83-2938, 83-2976.
    District Court of Appeal of Florida, Third District.
    July 3, 1984.
    Lipton & McConnell and Stephen N. Lipton, Shutts & Bowen and Robert E. Venney and Andrew L. Gordon, Miami, for appellants.
    George J. Blutstein, North Miami Beach, for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

These consolidated appeals are from an order garnishing Gherman’s salary. In Case No. 83-2938, Financial & Investment Planning, Inc. (Gherman’s employer and the garnishee, hereafter FIP) contends that since, without dispute, no salary or other debt was due from it to Gherman at the time of the service of the' writ of garnishment or any time between such service and the time of FIP’s answer, the trial court erred in ordering garnishment. We agree with this contention and reverse the order of garnishment.

Section 77.06, Florida Statutes (1979), limits the liability of a garnishee to those “debts due by him to defendant ... at the time of the service of the writ or at any time between service and the time of his answer.” See Chaachou v. Kulhanjian, 104 So.2d 23, 25 (Fla.1958) (future earnings not subject to garnishment; garnishee-employer answerable only for “any earnings of the defendant that were accrued and unpaid at the time the writ was served and thereafter earned by the defendant, up to the date of the filing of the garnishee’s answer, but not beyond that date”); West Florida Grocery Co. v. Teutonia Fire Insurance Co., 74 Fla. 220, 77 So. 209 (1917) (contingent indebtedness not subject to garnishment); Miami Herald Publishing Co. v. Payne, 345 So.2d 730 (Fla. 3d DCA 1977) (future wages cannot be garnished), reversed on other grounds, 358 So.2d 541 (Fla.1978). The writ of garnishment in the present case was served on FIP on November 20, 1980, and FIP served its answer on November 24, 1980. However, consistent with long-standing contractual arrangements, FIP had paid Gher-man’s November salary at the beginning of the month, and there was no salary owing to Gherman from FIP within the time of the described five-day period.

The trial court nevertheless concluded that “[t]he fact that Defendant, Gher-man, received income in advance does not prevent the garnishment from taking effect since this manner of payment merely circumvents the fact that Mr. Gherman was receiving monies during the time in question.” In our view, this conclusion is inconsistent with the rule that:

“Where an employer in good faith advances expense money and a drawing account to a salesman in anticipation of future sales and commission, the employer is not liable to creditors of the employe upon a notice of garnishment returned ‘nothing owing’, so long as the return honestly reflects the state of the account between the parties, and so long as the account between the parties is a bona fide account reflecting transactions directly and necessarily connected with the employment relationship. A drawing account is a well-recognized modern business method of furnishing the employe with maintenance while he is performing valuable services from which earnings will accrue. Packard Motors Co. of Alabama v. Tally, 212 Ala. 487, 103 So. 455.”
Coastal Adjustment Bureau, Inc. v. Hutchins, 229 Or. 418, 422, 367 P.2d 430, 432 (1961).

There being no finding by the trial court that the salary advance made to Gherman by FIP was not made in good faith, the trial court’s conclusion cannot stand.

In Case No. 83-2976, Gherman (the defendant and judgment debtor) appeals from that part of the order finding that he is not the head of the household and that, therefore, his wages are not exempt from garnishment proceedings under Section 222.11, Florida Statutes (1979). This appeal is dismissed as moot in light of our reversal of the garnishment order in Case No. 83-2938.

Reversed.

FERGUSON, Judge

(dissenting).

The trial court found in paragraph 2 of the Order on Writ of Garnishment:

The fact that Defendant, GHERMAN, received income in advance does not prevent the garnishment from taking effect since this manner of payment merely circumvents the fact that [he] was receiving monies during the time in question.

Considered in context, the word “circumvents,” as used by the trial court, fairly 'suggests something contrary to “good faith” or “bona fide.” This case is thus distinguishable from Coastal Adjustment Bureau, Inc. v. Hutchins, 229 Or. 418, 367 P.2d 430 (1961) upon which the majority relies. The finding that the payment-in-advance arrangement was not in good faith is supported by the evidence.

Mr. Gherman testified that he resides in a house owned solely by his wife. He is president and chief operating officer of the garnishee-corporation which is 100% owned by his wife. The financial planning corporation also employs the wife and children. As president and chief operating officer, Gherman undoubtedly established his own compensation arrangement which insulates his salary from garnishment. Although he previously testified to “living off his wife,” he is paid approximately $268,000 per an-num. All of his salary goes to a household account which is managed by the wife. His wife earns $100,000 per year. The children are paid $10.00 per hour.

Because the trial court’s findings are supported by competent and substantial evidence, the order that the corporation pay $9,000 to satisfy Lieberman’s judgment against Gherman should be affirmed.

      . Although property of the defendant in the possession or control of a garnishee during the pertinent time is also subject to garnishment, the creditor makes no claim here that FIP possessed or controlled such property.

      . Whether Gherman was the head of the household is a question of fact, see Holden v. Estate of Gardner, 420 So.2d 1082 (Fla.1982), which in the present case was resolved adversely to Gher-man based on substantial and competent evidence. Whether this finding, made in June 1983, will have any res judicata effect in any future proceedings against Gherman's employer to garnish wages remains to be seen.


author: DELL, Judge.

text:
    Randolph H. HUTCHENS, et al., Appellants, v. Robert WEINBERGER, et al., Appellees.
    No. 82-1850.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Gary Vonhof, Jose Rodriguez and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellants.
    Frank B. Kessler and Gary I. Zwickel of Zwickel, Gross & Kessler, Lake Worth, for appellees.
   DELL, Judge.

In an action for fraud and deceit, appellants Randolph H. Hutchens and Home Energy Saver Systems of Florida Inc. appeal from a jury verdict awarding appellees $18,000 in compensatory damages and $10,-000 in punitive damages.

Appellant Hutchens met the inventor of a home energy saving system and decided to purchase a franchise to market the home energy saver device. After purchasing the franchise he and his son incorporated Home Energy Saver Systems of Florida, Inc. Appellee Weinberger testified that he met appellant in Miami on at least two occasions and that appellant represented that the energy saver system would save 25 to 40% in home energy consumption without a change in life-style; that he had a friend or relative who was a general in the armed forces; that because of his friend or relative he would shortly receive a large government contract for the sale of the home energy saving unit; and that he was in the process of spending one-half million dollars in television commercials promoting the home energy saver unit nationwide. Appellant also represented that sales of the units were going well in all other franchises and that he had franchises in Texas, New Jersey, Tennessee and North Carolina. Appellee testified that based on these representations he executed a franchise agreement, established an office in Palm Beach County and undertook to market the energy saver units. After six to seven months, appellee had sold only two units and closed his business.

Appellant admitted during trial that he owned only two franchises, one in North Carolina and one in Florida, that he did not have a friend or relative who was a general in the armed forces and helping him to obtain government contracts, that he did not spend one-half million dollars in nationwide television promotion and that he discovered that the energy saving device did not produce a 25 to 40% energy savings in the ordinary home.

Appellant contends the trial court erred either in failing to grant a directed verdict at the close of the plaintiffs’ case on the issue of punitive damages, or in failing to enter a judgment notwithstanding the verdict on compensatory damages and punitive damages after the jury rendered its verdict. We find no merit in appellees’ contention that appellant failed to properly per-serve these points for appeal.

Our review of the record satisfies us that appellee presented sufficient evidence to support the award of the compensatory damages.

An aggrieved plaintiff may recover punitive damages if he demonstrates that the defendant acted outrageously.

Punitive or exemplary damages are allowable, however, solely as punishment or “smart money” to be inflicted for the malicious or wanton state of mind with which the defendant violated plaintiff’s legal right, and can only be imposed in cases where either by direct or circumstantial evidence some reasonable basis for an inference of wantonness, actual malice, deliberation, gross negligence, or utter disregard of the law on defendant’s part may be legitimately drawn by the jury trying the case.

Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 222-23 (1936).

This court applied the holding of Winn & Lovett Grocery Co. to a case where the trial judge instructed the jury that the plaintiff could recover punitive damages for fraud. We held that punitive damages are recoverable only against defendants whose conduct is particularly reprehensible.

Consequently, all causes of action sounding in fraud would therefore be amenable to claims for punitive damages. Obviously, this position is incorrect and cannot be reconciled with Florida law. Whether a fraudulent act is sufficiently outrageous so as to justify an award of punitive damages is a question for the jury.... It was error for the trial court to instruct the jury and authorize that a finding of fraud, in and of itself, may support an award of punitive damages.

Schief v. Live Supply, Inc., 431 So.2d 602, 603 (Fla. 4th DCA 1983).

An aggrieved plaintiff may recover punitive damages in a case of fraud, if the conduct in question is sufficiently outrageous. As we noted in Schief, whether the fraudulent act is sufficiently outrageous is a question for the jury. We reversed in Schief because the jury instructions compelled an award of punitive damages upon a finding of fraud, without separate consideration of the wantonness of the defendant’s conduct. In the case sub judice, the trial court properly instructed the jury on the elements necessary to support an award of punitive damages. The jury found appellant’s conduct sufficiently reprehensible to justify an award of punitive damages. We will not disturb this eviden-tiary conclusion by the jury. Dunn v. Shaw, 303 So.2d 6 (Fla.1974).

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

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


author: ANSTEAD, Chief Judge.

text:
    Chester A. ZAREMBA, Appellant, v. STATE of Florida, Appellee.
    No. 83-427.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Rehearing Denied Aug. 1, 1984.
    Donald J. Vestal, Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Chief Judge.

This is an appeal from six convictions for mortgage fraud under section 494.093, Florida Statutes (1979). Zaremba claims that the state introduced no evidence of fraud, that the state introduced no evidence that Zaremba bought or sold mortgage loans, as charged in the information, that the state erroneously introduced collateral crime evidence, and that the state’s closing argument misstated the evidence. We affirm.

Zaremba, a loan officer for City Consumer Services, Inc., obtained loans from City for the alleged victims through second mortgages on their homes. The loans were to be used to pay off various bills of the victims. Zaremba admitted forging some of the victims’ names on loan applications. Zaremba subsequently received checks made out to the victims from City, forged the victims’ names, and deposited the proceeds in an escrow account la-belled Mortgage Federal, a business wholly owned and operated by him. This practice was without the knowledge of his employer, City, and contrary to his employment agreement with them. As far as City knew, the victims were receiving the entire proceeds of the loans. Zaremba did not disclose to the victims his status as both an employee of City and owner of Mortgage Federal, or the fact that the victims could secure the same loans from City, without having to pay a broker's fee. Zaremba made out his own checks to the victims’ creditors and to the victims. Each of the victims testified that their outstanding bills were paid and that the monthly payments on the second mortgage were as they agreed. On the basis of this conduct Za-remba was charged with multiple counts of mortgage fraud. Zaremba was convicted of six counts but acquitted of thirteen other counts.

Zaremba was charged and convicted of violating sections 494.093 and 494.10(2), Florida Statutes (1979), which provide:

494.093 Prohibited practices. — It is unlawful, and a violation of the provisions of this chapter, for any person:
(1) In any practice or transaction or course of business relating to the sale, purchase, negotiation, promotion, advertisement, or hypothecation of mortgage transactions, including any transaction consummated by parties under the provisions of s.494.03, directly or indirectly:
(a) To knowingly or willingly employ any device, scheme, or artifice to defraud.
(b) To engage in any transaction, practice, or course of business which operates as a fraud upon any person in connection with the purchase or sale of any mortgage loan.
(2) In any matter within the jurisdiction of the department, to knowingly and willfully falsify, conceal, or cover up, by any trick, scheme, or device, a material fact, or make any false or fraudulent statement or representation, or make or use any false writing or document, knowing the same to contain any false or fraudulent statement or entry.
494.10 Penalites.—
(1) Whoever violates any of the provisions of this chapter, except as provided in subsection (2), is guilty of a misdemeanor of the second degree, punishable as provided in s.775.082 or s.775.083, and each violation of this chapter shall constitute a separate offense.
(2) Whoever violates any provision of s.494.093, fails to comply with the requirements of s.494.05(l)(f), or offers to negotiate a mortgage loan for compensation without being licensed as required by this chapter is guilty of a felony of the third degree, punishable as provided in s.775.082, s.775.083, or s.775.084.

Zaremba claims that since the customers all received exactly what he represented to them they would receive, he was guilty of no fraud. However, Section 494.093 specifically prohibits the fraudulent concealment of material facts as well as the making of false representations. There is evidence that Zaremba failed to disclose to the victims the complete nature of his relationship with City and Mortgage Federal, the manner in which he was securing the moneys in question, and their entitlement to secure the funds from City without the payment of a broker’s fee. In addition, of course, the proof reflected that appellant forged both the loan applications and the loan checks. His ultimate purpose was to appropriate a “fee” in loan transactions where ordinarily no fee would be due. Based upon a consideration of the entire scheme, we believe the proof was sufficient to support a violation of the statute.

Zaremba next claims that, if the state has in fact introduced evidence of fraud, such conduct is not covered by the specific allegations of the information. The information stated:

AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Bro-ward, by and through his undersigned Assistant State Attorney, charges that CHESTER A. ZAREMBA on the 29th day of February, A.D. 1980, in the County and State aforesaid, did then and there directly or indirectly engage in a practice, transaction, or course relating to the purchase or sale of a mortgage loan which operated as a fruad [sic] upon any person, to-wit: did fail to remit City Consumer Services, Inc., check numbered 00018343, payable to Robert Daniels and Catherine Ledbetter, to the borrowers, causing same to be deposited to the account of Mortgage Federal, Inc., contrary to F.S. 494.093, and F.S. 494.10(2)

Zaremba claims that there is a fatal variance between the charge and the proof since he was charged with fraud in connection with “the purchase or sale of a mortgage loan,” whereas the proof was that the transactions involved herein were direct procurements of mortgage loans rather than the purchase or sale of existing mortgages. State v. Ryan, 413 So.2d 411 (Fla.4th DCA 1982), holds that if the state charges a defendant with a violation of a specific subsection of a statute, the state cannot prove violation of another subsection.

As noted above, the proof of Zaremba’s allegedly fraudulent actions included acts of concealment as well as his forgery of endorsements on the loan applications and checks. His actions culminated in his forging the victims’ names on City’s checks and appropriating the proceeds, subject to the subsequent disbursement to pay the victims’ bills and to pay himself a fee which, under the proof, the victims should not have had to pay. This misappropriation was the gist of the harm done to the victims, both as alleged, and as subsequently proven at trial. The charging document involved herein specifically cited Zaremba’s diversion of City’s checks and the appropriation of the funds to Zaremba’s Mortgage Federal account in order to secure the payment of his broker’s fees. Hence, Zaremba was put on notice that it was the loan transactions that resulted in the issuance of those checks from City that formed the predicate for the charges against him. These transactions could hardly have been identified more specifically than by giving the names of the parties involved and the number of the check appropriated. In view of these allegations, and the fact that the charging document did not limit itself by designating a single, specific subsection of the statute, we do not believe there was a fatal variance between the proof and the charge as contemplated by Ryan.

Lastly, we find no harmful error sufficient to merit reversal in the other two issues raised. We believe the evidence as to the manner in which Zaremba’s employer discovered Zaremba’s alleged misconduct was relevant to give the trier of fact a complete picture of the overall scheme, and such evidence did not rise to the level required to compel the state to give formal notice that such testimony would be presented. Even if there was a procedural violation, we believe the trial court’s consideration and resolution of the issue proper. Similarly, we do not believe reversible error has been demonstrated in the comments of the prosecutor, an objection to which was sustained, and the jury instructed accordingly.

In accord with the above, the convictions are affirmed.

LETTS and GLICKSTEIN, JJ., concur.


author: PER CURIAM

text:
    V & R, INC., Roger Bacon, Stephen Vincent, and Montego Bay Corporation, Appellants, v. Arthur M. WOLFF, Michael H. Gora, Gulfstream Camera & Sound, Inc., Heath-Jo, Inc., d/b/a Wyn’s Green Olive Lounge, Aloha Travel Agency Inc. and John Cavell d/b/a Fort Lauderdale Secretarial Service, and all others similarly situate as a Class, et al., Appellees.
    No. 83-799.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    J. David Lynch of Andrews & Lubbers, P.A., Fort Lauderdale, for appellants.
    Michael H. Gora of Wolff & Gora, Fort Lauderdale, for appellees.
   PER CURIAM

At issue is the propriety of a summary final judgment. We conclude that genuine issues of material fact exist and, therefore, we reverse.

The dedication in the plat of the Coral Shopping Center contains the following language: “All thoroughfares are dedicated to the perpetual use of the public in fee simple forever.” The trial court interpreted this language to prohibit commercial tenants in the shopping center from utilizing valet parking in the common parking lot. In their answer to the complaint, the defendant/tenants asserted that their use of the parking lot is not inconsistent with the plat. Because the language in the plat is subject to different reasonable interpretations, and in view of the disputed testimony that valet parking promotes the best use of the parking lot, we conclude that the pleadings and evidence before the trial court raise genuine issues of material fact concerning the proper interpretation of the dedication. Consequently, summary judgment was improper. See Cove Club Investors, Ltd. v. Sandalfoot Associates, 425 So.2d 559 (Fla. 4th DCA 1982), petition for rev. denied, 436 So.2d 100 (Fla.1983); see also Kirsh v. Mannen, 393 So.2d 63 (Fla. 3d DCA 1981); Eaton v. Madsen, 388 So.2d 1275 (Fla. 4th DCA 1980); Sarasota County v. Stanton Investment Co. of Missouri, 283 So.2d 152 (Fla. 2d DCA 1973).

DOWNEY, HURLEY and DELL, JJ., concur.


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    Mary Lou HUGHES, Appellant, v. Donald HUGHES, Appellee.
    No. 83-1301.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellant.
    Richard L. Martens of Boose, Ciklin & Martens, West Palm Beach, for appellee.
   PER CURIAM.

The wife appeals from a final judgment of dissolution of marriage, contending that the trial court should have awarded permanent rather than rehabilitative alimony. We affirm. We find no abuse of discretion, particularly in light of record evidence that the wife has the capacity for self-support. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

We note that if the wife is unable to rehabilitate herself she may, before the expiration of the rehabilitation period, petition for an extension of rehabilitative alimony or for conversion to permanent alimony. Lee v. Lee, 309 So.2d 26 (Fla. 2d DCA 1975). See, Veach v. Veach, 407 So.2d 308 (Fla. 4th DCA 1981); Reid v. Reid, 396 So.2d 818 (Fla. 4th DCA 1981).

HERSEY, and DELL, JJ., concurs.

GLICKSTEIN, J., concurs with opinion.

GLICKSTEIN, Judge,

concurring with opinion.

This case presents an appropriate occasion for expression of my personal opinion that we should never be called upon nor allow ourselves to make appellate decisions when so much time has passed that we have no way of knowing whether what we decide makes sense now.

The final judgment of dissolution in this case was entered on May 20, 1983. Because of extensions given the parties for the filing of their briefs, oral argument could not be scheduled until June 6, 1984. By the terms of the final judgment, the wife was awarded rehabilitative alimony for two years because the trial court concluded her having a current RN license would enable her to support herself. This conclusion was based upon the expert opinion of a rehabilitation consultant that she would have no difficulty obtaining employment right away as a nurse, notwithstanding her non-use of the license in over twenty-three years.

It may be that the expert was correct, and that in the thirteen months that have transpired since the final judgment, the wife did obtain or should have obtained employment as theorized. In my opinion a year is too long a period to allow a proceeding to pend which involves the essential livelihood of the wife. The parties involved in questions that affect their daily lives in material, substantial ways have a right to expect speedy appellate decisions. Without extensions and with prompt opinion writing, this expectation can be met.

I take this opportunity also to repeat that we must know with precision and clarity all of the numbers involved in financial issues between spouses who are dissolving their marriages before we can review the reasonableness of any decision by the trial court.


text:
    ASTRA d/b/a Unceta and Company, Appellant, v. COLT INDUSTRIES OPERATING CORPORATION, The Garcia Corporation and T.G.C., Inc., Appellees.
    No. 83-1395.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Joseph P. Metzger of Horty, Springer & Metzger, West Palm Beach, for appellant.
    Kathryn M. Beamer of Schuler & Wilkerson, P.A., West Palm Beach, for appellee-Colt Industries Operating Corp.
    Shelley H. Leinicke of Wicker, Smith, Bolmqvist, Tutan, O’Hara, McCoy, Graham & Lane, Fort Lauderdale, for appellees-The Garcia Corp. and T.G.C., Inc.
   PER CURIAM.

This litigation arises out of the untimely death of Walter B. Hadley, III, who was accidentally killed when struck by a bullet from a pistol in the handbag of a law enforcement officer while Hadley and the officer were present in the Boston Restaurant and Bar in Delray Beach. It appears the officer’s handbag either fell or was knocked from a table to the floor and accidentally fired.

Hadley’s personal representative sued the officer in question, the County Sheriff, Colt Industries Operating Corporation, and others. Colt filed a third party complaint against Astra d/b/a Unceta & Company, a foreign corporation domiciled in Spain, for negligent manufacture of the gun in question, and Garcia Corporation and T.G.C., Inc., the exclusive American importer and distributor of Astra handguns. Garcia and T.G.C. filed a crossclaim against Astra for negligent manufacture and for contribution. Astra filed a motion to dismiss Colt’s third party complaint, attacking the claim for indemnification. The motion did not raise any question of personal jurisdiction over Astra. Five months later, but before the motion to dismiss was heard, Astra filed an amendment to its motion to dismiss alleging lack of jurisdiction over the person. Astra also filed a motion to strike Garcia’s crossclaim as being premature because Garcia's liability to Colt had not been determined. Several months later, but before the motion was heard, Astra filed an amendment to the motion to strike asserting lack of personal jurisdiction. Subsequently, Astra filed a motion for leave of court to file the aforementioned amendments. The motions and amendments were considered by the trial court and both motions to dismiss and for leave to amend were denied. From that interlocutory order, Astra has perfected this appeal.

The record reflects that Astra manufactured the gun in question and sold it to Garcia’s predecessor in interest in the early 1960’s. Astra was served with process pursuant to Section 48.193, Florida Statutes (1981), the Florida Long Arm Statute. It also appears that Astra did nothing in the litigation that could constitute a waiver of its objection to personal jurisdiction other than its filing of the original motions to dismiss and strike.

Appellees contended that Astra made a general appearance when it initially filed its motions to dismiss and strike without including the jurisdictional issue. Astra argues that, since an attack on the personal jurisdiction of the court can be joined with a motion directed to the merits of the complaint pursuant to Rule 1.140, Florida Rules of Civil Procedure, the amendments to the motions prior to their being heard by the court save it from having waived the so-called special appearance attacking jurisdiction. Furthermore, Astra contends the service under the Long Arm Statute was defective because neither the pleadings nor the facts alleged were adequate to warrant resort to such service.

None of the cases cited by the parties answered the first issue presented. Appellees cite numerous cases which hold that the first step that a defendant takes in a proceeding, whether by motion or responsive pleading, must raise the issue of personal jurisdiction or the issue is waived. Consolidated Aluminum Corp. v. Weinroth, 422 So.2d 330 (Fla. 5th DCA 1982); Miller v. Marriner, 403 So.2d 472 (Fla. 5th DCA 1981); Visioneering Concrete Construction Co. v. Rodgers, 120 So.2d 644 (Fla. 2d DCA 1960). However, in none of them do we have the present scenario, i.e. an initial motion filed without asserting the jurisdictional question but amending the motion to raise that question before the motion is heard. In this case, prior to the motion’s being heard, Astra tried to amend the motion to raise the jurisdictional question so that when it was heard by the court, the motion asserted the jurisdictional defect. It seems to us hypertechnieal to suggest that it was waived and we hold that under the facts of this case the question was not waived.

Astra’s second contention presented by this appeal is that service of process under Section 48.193 was ineffective because 1) the allegations of the third party-complaint and counterclaim were insufficient to support resort to that method of service and 2) the wrongful acts complained of, if any, were not subject to the Long Arm Statute because when Astra manufactured and sold the offending gun, service of process under this statute, or its predecessor, was not available, and the statute will not be applied retroactively. We reject the first reason set forth above, but accept the second. In Weatherhead Company v. Coletti Company, 392 So.2d 1342 (Fla. 3d DCA 1981), the Third District Court of Appeal had a somewhat similar case before it in which the claimant was injured by the explosion of a petroleum tank maintained and serviced by the defendant gas company. Predictably, the gas company third partied Weatherhead Company, the manufacturer of the tank, who was served in Ohio under Section 48.193, Florida Statutes (1979). Weatherhead’s counsel initially filed “an appearance” but later filed a motion to dismiss for lack of personal jurisdiction. The Third District held, contrary to other precedent, that the filing of “an appearance” did not constitute a general appearance waiving the jurisdictional question. Furthermore, the court held the Long Arm Statute was not available for service of process in that case because the facts showed the tank in question was manufactured and distributed by Weatherhead in the 1950’s, well before the effective date of the original statutory predecessor of Section 48.193, Florida Statutes (1979). This decision was affirmed by the Supreme Court of Florida in Public Gas Company v. Weatherhead Company, 409 So.2d 1026 (Fla.1982). Since it is un-controverted that the gun in the case at bar was manufactured and sold by Astra prior to the effective date of our Long Arm Statute and its predecessor, the Weather-head principle applies.

Accordingly, the order appealed from is reversed and the cause is remanded with directions to dismiss Colt’s Third Party Complaint and Garcia’s Crossclaim against Astra for lack of personal jurisdiction, without prejudice to further attempts by appellees to perfect service under some other alternative statutory procedure.

REVERSED AND REMANDED, with directions.

DOWNEY, LETTS and WALDEN, JJ., concur.


author: PER CURIAM. GLICKSTEIN, Judge, HURLEY, Judge,

text:
    Norman BATTIE, Appellant, v. STATE of Florida, Appellee.
    No. 83-1579.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed on authority of Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984).

DOWNEY, J., concurs.

GLICKSTEIN, J., concurs only in reversal with opinion.

HURLEY, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring only in the reversal.

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

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

HURLEY, Judge,

concurring specially.

In addition to the compelling policy considerations set forth in Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984), it is important to note that in Florida imposition of sentence is withheld when a defendant is placed on probation. See § 948.01(3), Fla. Stat. (1983). Consequently, Florida’s method of processing probation revocations is factually indistinguishable from that described in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), and, therefore, I believe that appointment of counsel is constitutionally mandated. See In re Wentworth, 17 Wash.App. 644, 564 P.2d 810 (1977).


text:
    Shirley Jean HARDEN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1581.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrew N. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed on authority of Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984).

DOWNEY, J., concurs.

GLICKSTEIN, J., concurs only in reversal with opinion.

HURLEY, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring only in the reversal.

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

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

HURLEY, Judge,

concurring specially.

In addition to the compelling policy considerations set forth in Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984), it is important to note that in Florida imposition of sentence is withheld when a defendant is placed on probation. See § 948.01(3), Fla. Stat. (1983). Consequently, Florida’s method of processing probation revocations is factually indistinguishable from that described in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), and, therefore, I believe that appointment of counsel is constitutionally mandated. See In re Wentworth, 17 Wash.App. 644, 564 P.2d 810 (1977).


text:
    Robert JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1583.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Richard L. Jorandby, Public Defender, and Stephen W. Benedict, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. We do not believe the trial court erred in denying appellant’s motion for post-conviction relief predicated on his counsel’s failure to advise him during the course of plea negotiations that the penalty he faced upon conviction could be enhanced. Initially, we note that appellant's testimony reflects a complete lack of familiarity with the plea negotiations, so that the trial court would have had to speculate as to what appellant would have done had he been properly advised. Hence, appellant has failed to meet the strict requirements set out in Knight v. State, 394 So.2d 997 (Fla.1981). We also note that once the appellant’s lawyer realized the potential consequences, the state refused to extend the same terms to appellant, as it had a right to do, and insisted upon going to trial. The appellant claims no trial error, and the trial court was, in no position to compel the state to extend the same plea offer, even if it determined that appellant would have accepted such offer. In short, there is no claim here that appellant did not receive a fair trial and we cannot put him back in a position of evaluating a plea offer long since withdrawn. This case is unlike that of Castro v. State, 419 So.2d 796 (Fla. 3d DCA 1982) where the defendant was clearly prejudiced when it was shown that he had entered a guilty plea on the basis of an erroneous calculation of the penalties he faced. See also Beckham v. Wainwright, 639 F.2d 262 (5th Cir.1981).

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


text:
    ASSOCIATED AIRCRAFT MANUFACTURING AND SALES, INC., Appellant, v. FLIGHT CONNECTOR CORP., a foreign corporation doing business in Florida, Appellee.
    No. 83-2384.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    John P. Shevock of Gillespie, McCormick, McFall, Gilbert & McGee, Fort Lauderdale, for appellant.
    John S. Freud of Guren, Merritt, Udell, Sogg & Cohen, Miami, for appellee.
   PER CURIAM.

This cause is before the court on appeal from a circuit court order granting Flight Connector Corporation’s motion to dismiss the second amended complaint for lack of jurisdiction. We reverse and remand.

Section 48.193(1), Florida Statutes (1983), provides in pertinent part for jurisdiction of Florida courts over persons, including nonresidents, who perform certain enumerated acts:

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

The second amended complaint here asserted that jurisdiction could be exercised over the defendant pursuant to Section 48.-193(l)(a). It alleged that the contract was negotiated and ultimately executed in this state. It also alleged that the defendant shipped its goods to Florida which the plaintiff repackaged and then passed on to its purchasers. Thus, the defendant’s shipping constituted continuous and systematic activities in this state tantamount to engaging in business. See Ford Motor Co. v. Atwood Vacuum Machine Co., 392 So.2d 1305 (Fla.1981). More importantly, the defendant failed to adequately refute any of the allegations of the complaint. Scordilis v. Drobnicki, 443 So.2d 411 (Fla. 4th DCA 1984) and Phoenix Trimming, Inc. v. Mowday, 431 So.2d 198 (Fla. 4th DCA 1983), cert. denied, 440 So.2d 352 (Fla.1983). Accordingly, we reverse and remand.

REVERSED AND REMANDED.

LETTS, HURLEY and DELL, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    AMERICAN AIR TRANSPORT, INC., and George M. Chappell, Appellants, v. SEAFIRST COMMERCIAL CORPORATION, a Colorado corporation, Appellee.
    No. 84-65.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.

      Edward G. Stephany of Marko, Stephany & Lyons, Fort Lauderdale, for appellants.
    Edward A. Marod of Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellee.
   GLICKSTEIN, Judge.

In this installment of a continuing saga, American Air Transport, Inc., and George M. Chappell, two defendants in a lawsuit in the Palm Beach County circuit court, appeal a non-final order denying Seafirst’s motion to compel discovery, but imposing sanctions on Chappell. If this court has jurisdiction it must be by way of Florida Rule of Appellate Procedure 9.040(c) and pursuant to Rule 9.030(b)(2)(A), which provides for the certiorari jurisdiction of district courts of appeal. We conclude that we have jurisdiction and grant the petition.

The facts reveal that on June 29, 1983 plaintiff/appellee Seafirst, filed an action in replevin and for damages against appellants and Frank Bachner, doing business as Southeast Aircraft Company. After various motions and hearings thereon discovery began. On September 14, 1983, Seafirst filed a request for production to defendant Chappell. Chappell filed his objections on October 14, 1983. On September 28, 1983, Seafirst propounded a set of interrogatories to Chappell, who responded on October 28, 1983, by invoking his Fifth Amendment privilege against self-incrimination. Seafirst noticed Chappell’s deposition for October 13, 1983. At deposition, Chappell rested on his Fifth Amendment privilege in response to every question dealing with substantive issues of the suit. On October 17, 1983, Chappell filed his answer and affirmative defenses.

Seafirst filed a motion to compel discovery with respect to its request to produce, interrogatories and deposition questions. Upon hearing the trial court denied Seafirst’s motion to compel, but also prohibited Chappell from presenting at trial any evidence or testimony concerning his affirmative defenses. This appeal/petition for writ of certiorari followed. The issue is whether the trial court failed to comply with the essential requirements of law when it imposed sanctions on the defendant while denying plaintiff’s motion to compel discovery. We conclude that it did.

Appellants erroneously contend, on the authority of Florida Rule of Civil Procedure 1.380(b), sanctions such as those applied in the instant case may be applied only if a party fails to obey an order to provide or permit discovery. Rule 1.380(b) describes court procedures and powers relating to discoverable matters. Rule 1.280(b)(1) excludes privileged matters from those which are subject to discovery. Therefore it does not follow that an order to compel discovery is an indispensable precursor to such sanctions when a privilege is claimed.

Florida case law applicable to the present facts is sparse. It is clear that one who initiates a judicial proceeding and then invokes the Fifth Amendment privilege to shield herself from discovery may be denied the opportunity of continuing her litigation. See Minor v. Minor, 240 So.2d 301 (Fla.1970); Stockham v. Stockham, 168 So.2d 320 (Fla.1964). But here the deponent claiming the privilege against self-incrimination is a defendant. The first pertinent Florida case appears to be Roberts v. Jardine, 358 So.2d 588 (Fla. 2d DCA 1978). There Jardine sued Roberts for damages resulting from Roberts’ illegally intercepting a certain telephone conversation be-tweeh them. When Jardine sought discovery, first by interrogatories and later by request for documents and other things, Roberts would not comply on Fifth Amendment grounds. On plaintiff Jardine’s motion, the trial court entered two orders in which, essentially, the court required defendant Roberts to answer the interrogatories and comply with discovery on pain of entry by the court of a default judgment. Insofar as is here pertinent, the appellate court held the trial court could not compel Roberts to comply with discovery at the risk of self-incrimination, and could not punish her for exercising her constitutional privilege by entering a default judgment. The court of appeal said the trial court could, however, impose less severe sanctions, such as striking her testimony.

The most closely pertinent Florida case was fairly recently decided by this court. In DeLisi v. Bankers Insurance Company, 436 So.2d 1099 (Fla. 4th DCA 1983), DeLisi had invoked his privilege against self-incrimination during discovery deposition in a suit against him. The trial court entered an order imposing sanctions against him. This court held the trial court departed from the essential requirements of law by failing to employ the correct test to determine whether DeLisi was justified in invoking the Fifth Amendment privilege. This court quashed the order imposing sanctions and remanded for further proceedings consistent with the opinion.

The essence of the facts in DeLisi is as follows: Bankers Insurance sued to foreclose on a mortgage deed DeLisi had granted as security for insured appearance bonds for his son and some other criminal defendants, who had thereafter absconded. Bankers Insurance’s deposition questions regarding DeLisi’s personal and corporate finances, and concerning the whereabouts of the criminal defendants who had failed to appear, prompted DeLisi’s invocation of the privilege against self-incrimination. The trial court reasoned it could not compel DeLisi to answer the questions, and without assessing whether there was a realistic possibility the requested answers could in fact be used to convict DeLisi of a -crime, the court ruled DeLisi’s pleadings should be stricken and a default entered, as sanctions.

This court cited the tests of DeLisi v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982) and Pillsbury Co. v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983) as indicative of what the trial court should have done to determine whether any sanctions were justified. This court said that if justification was found, the trial court could then consider the sanctions authorized in Roberts v. Jardine.

The DeLisi v. Smith test requires the court to exercise its discretion to “determine whether it is reasonably possible that answers to either interrogatories or deposition questions could evoke a response ‘forming a link in the chain of evidence which might lead to criminal prosecution.’ DeLisi, supra, at 938.” 436 So.2d at 1101. The Conboy test, which amounts to the same thing, states “[t]he privilege is inapplicable only ‘if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness.’ [Citations omitted.]” 436 So.2d at 1101 {quoting Pillsbury Co. v. Conboy, 459 U.S. at 266, 103 S.Ct. at 619, 74 L.Ed.2d at 445-46 n. 1 (1983) (Marshall, J., concurring)).

In the instant case, as in DeLisi v. Bankers Insurance, there is no indication the trial court applied the appropriate test before applying sanctions. Moreover, the sanctions applied go beyond those permitted under Jardine. Thus, the trial court departed from the essential requirements of law. Upon resumption of jurisdiction, the trial court is authorized to reconsider the matter by application of the DeLisi v. Bankers Insurance test. If the trial court finds the privilege was properly claimed, sanctions may not exceed those stated in Jardine.

HURLEY and WALDEN, JJ., concur.


author: SCHEB, Judge.

text:
    Grover EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1962.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Defendant, Grover Evans, challenges his conviction for second-degree grand theft under section 812.014, Florida Statutes (1981). The only meritorious point he raises is that the state failed to prove that the value of the stolen coats found in his possession was in excess of $100. Thus, defendant argues that there was no basis for a conviction of grand theft. On this point, we agree.

At the outset we reject the state’s contention that defendant has not properly preserved this issue for appeal. The record discloses that defendant raised an objection as to proof of value in his motion for judgment of acquittal and argued the point in his motion for new trial. Thus, the issue has been properly preserved for our review. See Mancini v. State, 273 So.2d 371 (Fla.1973); Santini v. State, 404 So.2d 843 (Fla. 5th DCA 1981).

The state charged Evans with theft of coats of the value of $100 or more from a Sears store in Clearwater on February 7 or 8, 1983. Defendant pled not guilty and was tried and found guilty as charged by a jury. The evidence revealed that several hours after the theft, when defendant’s car was stopped by the police, he was found to be in possession of three of the stolen coats. The proof established his knowledge of the stolen character of the coats.

While we reject the defendant’s argument that the evidence was insufficient to convict him of theft, we nevertheless hold that the state failed to prove that the value of the coats found in his possession exceeded $100, as required for a conviction of second-degree grand theft. At defendant’s trial the manager of the Sears store identified the three coats found in defendant’s possession as being from the group of some twenty-three or twenty-four coats that were stolen. The manager further testified that those coats represented a total of $1,100 in retail value to Sears at the time they were stolen. He did not testify as to specific values and no price tags from the recovered coats were admitted in evidence.

Proof of the element of value is essential to a conviction for grand theft and must be established by the state beyond and to the exclusion of every reasonable doubt. Negron v. State, 306 So.2d 104 (Fla.1974); Weatherspoon v. State, 419 So.2d 404 (Fla. 2d DCA 1982). Admittedly, an inference could be drawn from the evidence that each coat was worth about $50 or $55. However, we point out that no evidence was introduced as to the value of the three coats found in defendant’s possession. The fact is that the coats stolen from Sears consisted of a variety of “styles of all-weather coats, long and short.” This could support a contrary inference that the coats sold for a wide range of prices; some expensive, others less expensive. Finally, this is not one of those rare cases where the minimum value of an item of property is so obvious as to defy contradiction. See Jackson v. State, 413 So.2d 112 (Fla. 2d DCA 1982).

Accordingly, we vacate defendant’s judgment and sentence for grand theft and direct the trial court to adjudicate him guilty of petit theft and to resentence him accordingly.

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


author: DANAHY, Judge.

text:
    Dorothy Ileen HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 83-2003.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.

      Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Upon review of the briefs and record on appeal) we find that the appellant has failed to demonstrate that the evidence was insufficient to sustain her conviction for second degree murder. Therefore, we affirm the judgment of guilt.

However, we disapprove of that part of the sentence which requires the defendant to pay restitution, attorney fees, and costs. Section 775.089, Florida Statutes (1983), authorizes a court to impose restitution as part of a sentence. Although the section does not specifically provide for notice and hearing before restitution may be imposed, it clearly contemplates that the trial court shall make determinations as to the defendant’s ability to pay, and the amount and method of payment. Similar provisions appear in section 948.03, Florida Statutes (1983), which authorizes the imposition of restitution as a condition of probation. Our supreme court has interpreted the latter section as requiring notice and hearing before restitution may be ordered. Fresneda v. State, 347 So.2d 1021 (Fla.1977). We believe the same interpretation should be applied to section 775.089. Accordingly, we hold that before restitution may be imposed as part of a sentence pursuant to section 775.089, the defendant must be given notice and an opportunity to be heard.

The imposition of attorney fees and costs is similarly flawed by the failure to afford notice and opportunity to be heard. Notice and hearing are specifically required by section 27.56(7).

Nothing we say here precludes the imposition of restitution and taxing of costs against the defendant after proper notice and hearing. Accordingly, we reverse the sentence imposed on the defendant and remand for resentencing in order to afford the trial court an opportunity to impose restitution and tax costs upon proper notice and hearing to the defendant.

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


text:
    Wesley GARMONY, Appellant, v. STATE of Florida, Appellee.
    No. 83-2081.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Wesley Garmony appeals from his convictions of and sentences for two counts of robbery with a firearm.

We .find no merit to defendant’s claim that he committed one robbery rather than two. See Brown v. State, 430 So.2d 446 (Fla.1983); Hillman v. State, 410 So.2d 180 (Fla. 2d DCA 1982).

As his second point on appeal, defendant claims that the trial court erred in retaining jurisdiction over one-half of his sentence. Defendant failed to raise this point in the lower court, and therefore the issue was not preserved for appeal. See Springfield v. State, 443 So.2d 484 (Fla. 2d DCA 1984).

We affirm defendant’s convictions and sentences, but do so without prejudice to his ability to raise the retention of jurisdiction issue in the lower court in a properly filed motion for post-conviction relief under rule 3.850.

RYDER, C.J., and SCHEB and OTT, JJ., concur.


author: LEHAN, Judge.

text:
    William Boyce COMBEE, Appellant, v. Mary Ruth COMBEE, Appellee.
    No. 83-2083.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Clinton A. Curtis, Bartow, for appellant.
    Douglas H. Smith, Lake Alfred, Judith A. Cutting and A.H. Lane of Lane, Trohn, Bertrand & Williams, P.A., Lakeland, for appellee.
   LEHAN, Judge.

The husband appeals certain portions of the lump-sum alimony awards to the wife in this dissolution of marriage action. We reverse and remand for reconsideration of the awards. ■

The husband first contends that the trial court could not equitably distribute the marital property via lump-sum alimony because the wife requested lump-sum alimony only for support purposes, and the wife had sufficient income and property in her own name to meet her stated support needs. The husband cites Hu v. Hu, 432 So.2d 1389 (Fla. 2d DCA 1983), and Abbe v. Abbe, 442 So.2d 998 (Fla. 2d DCA 1983), as support for his argument. We disagree with the husband’s contention. In her petition for dissolution the wife did ask for equitable distribution in a paragraph of the petition which was followed by a paragraph which stated that she was dependent upon her husband for support. However, the wife’s petition also included a prayer for lump-sum alimony that was not tied to any statement regarding support. The mere fact that the wife asserted a need for support should not necessarily limit her requested lump-sum alimony award to support. Contrary to the husband’s argument, we find in Hu and Abbe no requirement that the wife’s specific justification for equitable distribution be pleaded in the manner apparently contended for by the husband. Thus, we affirm as to the trial court’s authority to equitably distribute the marital property under the pleadings in this case.

As his second point the husband contends that the awards of lump-sum alimony should be reversed because the award to the wife of the husband’s interest in a jointly-held citrus grove, which was the parties’ major income-producing property, left the husband a disproportionately small share of income and large share of the debts and expenses. We agree with the husband in this regard. The parties’ income from all farming operations in 1981 was 84 percent of their adjusted gross income and in 1982 was 69 percent of their adjusted gross income, according to their income tax returns. The Farm Income and Expenses Reports (Schedule F) attached to the tax returns for those years show that most of the gross farm income (before deducting farm expenses) was derived from the citrus grove. The grove produced 99 percent of the gross farm income in 1981 and 87 percent in 1982. It is apparent that the farm operations other than those involving the grove accounted for only a small percentage of the farm income, while incurring a large percentage of the expenses. From the record it is difficult or impossible to calculate or estimate with precision the anticipated net income figures for the husband and the wife as a result of the award. The record only reflects tax calculations for the parties’ farm income before the division of the farm property, and there is inadequate basis in the record to determine proper allocation of expenses between the husband’s and wife’s shares after the division. However, it seems apparent that the result of the trial court’s distribution of the grove to the wife and of other farm property to the husband is that the husband is left with the lion’s share of debts and expenses and only a minor share of the income.

The parties had been married 36 years. The husband was 59 years old and the wife was 57 years old. The wife was retired from a job and drawing a pension of $267.00 a month. The husband had spent his life acquiring and managing the grove business and another agricultural business in which after the dissolution judgment he had a 40 percent interest.

We recognize that the purpose of the trial court in awarding the grove property to the wife might have been to provide her with income not dependent upon the husband’s continued business management. While we do not disagree with the general propriety of such a goal, we believe that the particular plan of distribution formulated in this case has the effect of being grossly unfair to the husband.

An award of lump-sum alimony cannot be made unless the evidence reflects “financial ability of the [paying] spouse to make such payment without substantially endangering his or her economic status.” Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). The record indicates that the award to the wife of the parties’ major income-producing property will substantially endanger the husband’s economic status. We do not believe that reasonable persons could differ about the impropriety of the award. See Canakaris, 382 So.2d at 1203. We do not believe that Conner v. Conner, 439 So.2d 887 (Fla.1983), apparently limiting the scope of appellate review of certain property distributions, requires a different result under the facts of this case. That is, we do not believe that Conner, which cites with approval Canakaris, requires that in this case we disregard the foregoing dictates of Canakaris. See generally Haney v. Haney, 450 So.2d 256 (Fla. 2d DCA 1984); Marshall v. Marshall, 445 So.2d 706 (Fla. 4th DCA 1984); Marcoux v. Marcoux, 445 So.2d 711 (Fla. 4th DCA 1984).

Accordingly, we reverse the award of lump-sum alimony and remand for the trial court to make a more equitable distribution of the marital property. Although we are reversing in light of the award of the citrus grove, the property awards were interrelated and part of one overall plan. Therefore, on remand the trial court may, if necessary to do equity between the parties, modify other financial aspects of the final judgment while correcting the disparity described above.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

SCHOONOVER, A.C.J., and HALL, VINCENT T., Associate Judge, concur.


author: GRIMES, Acting Chief Judge.

text:
    Boyce R. “Bill” MOUDY, Appellant, v. SOUTHLAND DISTRIBUTING COMPANY OF ST. PETERSBURG, INC., a Florida Corporation, and Bernard Kanner, Appellees.
    No. 83-2197.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Paul B. Johnson and Robert Johnson of Johnson, Paniello & Hayes, Tampa, for appellant.
    Marian P. McCulloch of Jacobs, Robbins, Gaynor, Burton, Hampp, Burns, Cole & Shasteen, P.A., Tampa, for appellees.
   GRIMES, Acting Chief Judge.

Appellant seeks to appeal the dismissal with prejudice of counts I, II and V of his five count second amended complaint. The dismissal of counts I and II is not appealable at this time because those counts are interrelated with and arise out of the same factual background as counts III and IV which remain pending against the same parties. North Indiatlantic Homeowners Ass’n v. Bogue, 390 So.2d 74 (Fla. 5th DCA 1980). However, the dismissal of count V may be appealed because it alleges a separate and distinct cause of action in fraud not interrelated with or involving the same transaction alleged in the other four counts. Mendez v. West Flagler Family Ass’n, 303 So.2d 1 (Fla.1974).

In dismissing the three counts, the trial court stated that they did not contain certain allegations which the court had noted as essential to stating a cause of action in an order dismissing a prior complaint. However, such allegations had nothing to do with the sufficiency of count V which was not filed until a later date and which is predicated upon a totally different theory. Upon the premise that a proper ruling, even if based on the wrong reason, should be affirmed, Stuart v. State, 360 So.2d 406 (Fla.1978), we have reviewed the sufficiency of count V and find it wanting. The circumstances constituting the alleged fraud are not pled with the particularity necessary to state a cause of action. See Fla.R.Civ.P. 1.120(b). Nevertheless, since count V first appeared in the second amended complaint, we believe that appellant should be given another opportunity to state a cause of action. Highlands County School Board v. K.D. Hedin Construction, Inc., 382 So.2d 90 (Fla. 2d DCA 1980).

The appeal is dismissed as it relates to counts I and II. The order with respect to count V is affirmed but the dismissal shall be without prejudice. The case is remanded for an order permitting appellant a reasonable length of time within which to file an amended count V.

OTT and SCHOONOVER, JJ., concur.


author: PER CURIAM.

text:
    Vincent CAPIZZANO, Appellant, v. STATE of Florida, Appellee.
    No. 83-2204.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Jerry Hill, Public Defender, and Larry G. Bryant, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The defendant appeals his convictions and sentences- on four counts of armed robbery and four counts of kidnaping. The only error suggested on his behalf concerns the sentence imposed. The defendant points out that the numbers of the counts at the sentencing hearing to which the defendant was sentenced did not correspond to the written order of sentence entered by the court. This issue is a procedural error, not a fundamental one, and we believe it should properly be first presented to the trial judge.

Accordingly, we dismiss this appeal without prejudice to the defendant to raise this issue by motion pursuant to Florida Rule of Criminal Procedure 3.850.

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


text:
    DON CESAR PROPERTY OWNERS CORPORATION, Appellant, v. Robert F. GALLAGHER and Ruby V. Gallagher, Appellees.
    No. 83-2325.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Amy M. Williams, St. Petersburg; Donald M. O’Leary, St. Petersburg; and Peter M. Walsh, Tampa, for appellant.
    Seymour A. Gordon of Gay & Gordon, P.A., St. Petersburg, for appellees.
   PER CURIAM.

We concur in the court’s determination that a covenant providing that appel-lees’ property shall be “for residence only” does not prohibit the erection of townhouse condominiums. This restriction relates to the use or mode of occupancy to which the property may be put rather than the nature of the structure to be erected thereon. Moore v. Stevens, 90 Fla. 879, 106 So. 901 (1925). Cf. Mayes v. Hale, 82 Fla. 35, 89 So. 364 (1921) (holding that the erection of an apartment house violated a covenant that the property should “be used for residential purposes only, and only one residence is to be erected on each lot”). We also conclude that there is ample evidence to support the court’s finding that, in any event, appellants cannot enforce the covenant because of acquiescence, waiver and abandonment/ See Stephl v. Moore, 94 Fla. 313, 114 So. 455 (1927).

AFFIRMED.

RYDER, C.J., and GRIMES and LE-HAN, JJ., concur.


text:
    The MAJOR GROUP OF WEST COAST FLORIDA, INC. and Tam-Bay Realty, Inc., Appellants, v. Violet CUNNINGHAM, Appellee.
    No. 83-2445.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Howard L. Killian, Tampa, for appellants.
    Thomas H. McGowan, St. Petersburg, for appellee.
   PER CURIAM.

Upon consideration of the evidence in the record in this contract action we cannot agree with appellants’ cogent argument that there was no jury issue as to whether duress was established as a defense. See Cooper v. Cooper, 69 So.2d 881 (Fla.1954); City of Miami v. Kory, 394 So.2d 494 (Fla. 3d DCA 1981); Corporacion Peruana de Auropuertos y Aviacion Commercial v. Boy, 180 So.2d 503 (Fla. 2d DCA 1965). We do not find merit in appellants’ remaining contentions.

AFFIRMED.

RYDER, C.J., and GRIMES and LE-HAN, JJ., concur.


text:
    Freddie J. JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 84-34.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.

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

We affirm the revocation of appellant’s probation and the imposition of judgment and sentence on the underlying offense of unemployment compensation fraud. We agree, however, with appellant’s assertion that the evidence presented at his revocation hearing was insufficient to support the trial court’s finding that he violated his probation by possessing burglary tools. See Preston v. State, 373 So.2d 451 (Fla. 2d DCA 1979) (when alleged burglary too, is a common household item or an implement of ordinary and everyday use, state must present evidence of item’s actual use in burglary or attempted burglary to establish requisite criminal intent.) Accord Frame v. State, 388 So.2d 1381 (Fla. 2d DCA 1980) (slide hammer and bolt cutters were innocent items which would not support finding of guilt absent evidence of use in burglary or attempted burglary). The record before us contains no evidence that appellant used the bolt cutters in his possession for any unlawful purpose.

We reject appellant’s contention that the evidence was insufficient to support a finding of violation for loitering and prowling. Conversely, we deem the evidence sufficient to have satisfied the trial court’s conscience that appellant committed the violation charged. See Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947); Brown v. State, 429 So.2d 821 (Fla. 2d DCA 1983) (revocation justified if evidence is sufficient to satisfy conscience of court that condition of probation has been violated).

Accordingly, we strike that part of the order of revocation finding that appellant violated his probation by possessing burglary tools. We affirm the judgment and sentence in all other respects.

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