author: HERSEY, Judge.

text:
    Charlotte B. KEISTER, Appellant/Cross Appellee, v. RUDEN, BARNETT, McCLOSKY, SCHUSTER & RUSSELL, P.A., Appellee/Cross Appellant.
    Nos. 82-1638, 82-2465.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.
    Rehearing Denied May 23, 1984.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellant/cross appel-lee.
    Richard E. Berman of Ruden, Barnett, McClosky, Schuster & Russell, P.A., Fort Lauderdale, for appellee/cross appellant.
   HERSEY, Judge.

The sole issue of any consequence raised by Ms. Keister in these proceedings involving her refusal to pay attorneys’ fees is the propriety of the trial court’s denial of a belated request for trial by jury.

To review the proceedings leading up to the denial: On October 9, 1980, the complaint was filed by Ruden, Barnett (appel-lees) against Keister, for damages for breach of contract in the amount of $50,000 or alternative relief on a quantum meruit basis. On November 12,1980, Keister filed an answer pursuant to a previously granted extension of time. Initially Keister was acting in a pro se capacity; however, a notice of appearance was filed by Ronald Gossett on December 4, 1980. On the same date Keister, through her attorney, filed a motion to amend proceedings to demand a trial by jury along with other motions. A hearing was held on these motions and on December 16, 1980, the court entered its order denying Keister’s motion to amend proceedings to demand a trial by jury. At the hearing the judge stated: “I think she’s waived her right to a jury trial, and I don’t think it’s an abuse of my discretion having previously set it for non-jury trial to deny the motion.” The court granted a motion to amend the answer. At a subsequent hearing, the judge discussed with Keister’s counsel the scope of the order granting leave to amend, the judge stating, “that was just what was argued, just to file certain affirmative defenses, and certainly not to go back and review the jury trial motion.” Thus, even though it was known to Keister’s attorney that a renewed jury trial request would not be entertained, one was demanded in the amended pleadings. (The amended pleadings included a counterclaim which was subsequently dismissed.) The trial judge’s denial of the request provides the basis for this appeal.

Keister argues that the amended pleading, by injecting new issues, revived her right to timely demand a jury trial. Specifically, the new issue raised was that the agreement was for $25,000 of legal services for her daughter and the same amount for herself, rather than $50,000 “undivided” as evidenced by the written document on which the complaint was predicated. By raising this issue, the appellant attempted to bring the case within the ambit of Hollywood, Inc. v. City of Hollywood, 321 So.2d 65 (Fla.1975). Therefore, only if evidence of the issue newly injected into the case is found to be insufficient to go to a jury, rendering the error below harmless, are we in a position to affirm the judgment rendered after the non-jury trial.

In its final judgment the lower court found that the written document expressed the sole agreement between the parties:

3. Shortly after the retention by Defendant, KEISTER, of Plaintiff, RU-DEN, BARNETT, as previously set forth, Defendant, KEISTER, entered into a written agreement, dated January 3, 1980, (Defendant’s, KEISTER, Exhibit 2 in evidence and hereinafter referred to as “Written Agreement”), with Plaintiff, RUDEN, BARNETT, which Written Agreement fully memorialized the agreement between the parties as to the legal fees that were to be paid by Defendant, KEISTER, to Plaintiff, RUDEN, BARNETT, in accordance with its representation of Defendant, KEISTER, in the Marriage Lawsuit.

The evidence clearly established that Keis-ter had signed a written agreement, agreeing to pay Ruden, Barnett a $50,000 fee no later than July 10, 1980. Nowhere prior to the amended answer is this new issue raised, as Ruden, Barnett points out in its brief:

Keister wrote several letters, including one of ten pages all of which complained of the representation afforded her by RUDEN, BARNETT. Nowhere in those letters, was any complaint made of the $50,000.00 fee demanded for services rendered. Rather, these letters, together with the Answers to Admissions are statements which clearly establish that the only contractual relationship KEIS-TER had with RUDEN, BARNETT was contained in that contract between the parties. The trial court agreed (Record cites omitted).

We therefore hold that no reversible error was committed by the trial court because appellant has failed to sustain the burden imposed upon her by the rule enunciated in Wertman v. Tipping, 166 So.2d 666 (Fla. 1st DCA 1964). Further, the evidence submitted on the issue as to which a jury trial was demanded was insufficient to go to the jury so that, even if error‘occurred, it was harmless. Hollywood, Inc. v. City of Hollywood, 321 So.2d at 65.

For these reasons we affirm.

AFFIRMED.

DOWNEY and LETTS, JJ., concur.


source: Caselaw Access Project

author: BERANEK, Judge.

license: Public Domain

text:
    POINT MANAGEMENT, INC., Appellant, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, Appellee.
    No. 83-758.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.
    Rehearing Denied May 21, 1984.
    W. Jay Hunston, Jr., of DeSantis, Cook, Gaskill & Silverman, P.A., North Palm Beach, for appellant.
    David M. Maloney, Dept, of Business Regulation, Tallahassee, for appellee.
    Peter S. Sachs of Sachs & Weiss, P.A., Boca Raton, amicus curiae for Kings Point Community Ass’n, Inc.
   BERANEK, Judge.

This is a condominium controversy of major proportions in that it involves approximately 15,000 residents of a large South Florida multi-condominium residential development. The appellant, Point Management, Inc., is the managing agent for the various separate condominium associations, which now operate this multi-con-dominium development. For the purposes of this opinion, appellant, Point Management, Inc., will be referred to as the “Associations.” The appellee is the Florida Department of Business Regulation, Division of Florida Land Sales and Condominiums, an administrative agency charged with enforcing the Condominium Statute of this state. Appellee will be referred to as the “Department.”

At issue is an administrative order issued by the Division on March 29, 1983. This order rejected a contrary finding by an administrative hearing officer, and held the Associations in violation of Section 718.-115(2), Florida Statutes (1981), by paying the expenses of two golf courses from greens fees collected from residents and nonresidents who actually played golf on the courses. Unit owners who did not use the courses paid nothing for their maintenance unless the greens fees failed to cover these expenses. The Division found the golf course expenses to be “common expenses” under the condominium documents and Section 718.115, Florida Statutes (1981), and ordered the Associations to assess each unit owner his proportionate share of these expenses and to cease collecting greens fees from unit owners.

The Associations appeal urging numerous errors. The primary argument is based upon Peck Plaza Condominium v. Division of Land Sales and Condominiums, 371 So.2d 152 (Fla. 1st DCA 1979), to the effect that the Division exceeded its jurisdiction because it interpreted various contracts between the parties. Appellant asserts the Division has merely interpreted the various condominium documents and enforced its own interpretation of those documents against the contracting parties. We agree and reverse based upon the Peck decision.

Several years before the administrative order in question was entered, the condominium associations and the developer became involved in complex litigation filed in the Circuit Court for Palm Beach County. Three separate lawsuits concerning various aspects of this multi-condomini-um development were filed and eventually settled after some four and one-half years of litigation. The Circuit Court approved the settlement after formal proceedings. The compromise of the three separate cases was effectuated by a general settlement agreement. Attached to this settlement agreement and made as a part of it were various attachments, including but not limited to, an agreement for deed, a long term lease, and an amendment to the condominium declarations. The Division construed and interpreted all of these documents in reaching its conclusion in the present administrative proceeding, and in doing so exceeded its jurisdiction as announced in Peck Plaza Condominium v. Division of Land Sales and Condominiums, supra. The rationale of the Peck case is that courts rather than administrative bodies construe contracts. A settlement agreement between parties to litigation is in fact a contract.

The Associations here moved to dismiss the administrative proceeding on jurisdictional grounds, and this motion was denied by the Division. In doing so, the Division erred. This case is even stronger than the Peck situation, because here we deal with a contractual settlement between separate parties m separate litigation which settlement has already been approved by the Circuit Court. We conclude, having reviewed the documents by which settlement was effectuated, that ambiguities existed as to the issues in the instant administrative proceedings. We thus vacate the order of the Division and remand for further proceedings with directions that the initial administrative order to show cause be dismissed.

REVERSED AND REMANDED.

DOWNEY and LETTS, JJ., concur.


author: BARFIELD, Judge. MILLS, Judge,

text:
    Larry Gene SHAW, Appellant, v. STATE of Florida, Appellee.
    No. AV-459.
    District Court of Appeal of Florida, First District.
    March 14, 1984.
    Rehearing Denied May 16, 1984.

      Larry Gene Shaw, pro se.
    Jim Smith, Atty. Gen., and Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.
   BARFIELD, Judge.

Shaw appeals the trial court’s denial of his Rule 3.850 motion. The issue is whether Shaw should have been permitted to withdraw his guilty plea when the trial court refused to follow a plea agreement. We reverse.

Shaw pled guilty on February 22, 1983, in exchange for a nine year sentence. At Shaw’s request his sentencing was postponed until March 2, 1983, and Shaw was allowed to remain free on bond. The trial court’s only condition on honoring the plea agreement was that Shaw be present for sentencing on March 2, 1983. Shaw was there on time, albeit he was accompanied by the local constabulary. It seems that Shaw was arrested on a new charge during the intervening week. The judge proceeded to accuse Shaw on the “bad news” he heard about him, try Shaw on the “bad news”, convict him, and punish him, all without regard to Shaw’s presumption of innocence or other constitutional safeguards attendant to the new charge. The judge refused to honor the nine year sentence agreement and sentenced Shaw to twenty-five years.

The trial court must either sentence Shaw to nine years or allow him to withdraw his guilty plea. LaBaissiere v. State, 429 So.2d 96 (Fla. 2d DCA 1983); Nichols v. State, 403 So.2d 1089 (Fla. 1st DCA 1981); Richmond v. State, 375 So.2d 1132 (Fla. 1st DCA 1979).

The denial of Shaw’s motion for post-conviction relief is REVERSED. The trial court is directed to sentence Shaw pursuant to the nine year agreement or permit him to withdraw his guilty plea.

WENTWORTH, J., concurs.

MILLS, J., dissents, with opinion.

MILLS, Judge,

dissenting:

I dissent. I would affirm.

Shaw was arrested and charged with two counts of burglary, two counts of possession of burglary tools, one count of forgery, one count of uttering a forged instrument, and one count of resisting an officer with violence. Trial was set for 22 February 1983, but pursuant to plea bargaining Shaw changed his plea to guilty on that date.

It was agreed by Shaw, the State and the trial court that Shaw would receive a sentence of not more than a total of nine years in the seven cases pending against him. Shaw requested a continuance on sentencing so that he could get his personal affairs in order. The trial court postponed sentencing until 2 March 1983, and Shaw was released on his own recognizance.

Between 22 February and 2 March, Shaw committed another burglary for which he was arrested and incarcerated. On the sentencing date, the trial court noted Shaw’s conduct while he was free on recognizance and refused to follow the plea agreement. Shaw was sentenced to five years on each of the seven counts, with five of the sentences to run consecutively, and two to run concurrently, for a total of 25 years.

Shaw subsequently filed a 3.850 motion, asking the trial court either to abide by the terms of the plea agreement or to allow him to withdraw his plea. The motion was denied by the trial court without a hearing.

I do not find from the record that the trial court accused, tried, convicted and punished Shaw for the “bad news” it heard about him. I do not find that Shaw’s constitutional rights were violated. I do not find that the trial court committed error.

I do find that the trial court was informed that Shaw, while at liberty on his own recognizance, was arrested while attempting to burglarize a business. I do find that during the sentencing hearing Shaw’s attorney stated, “Your Honor, the reason I’m trying to make this point forcefully is Mr. Shaw was aware that under any circumstances if he was arrested while he was out awaiting sentencing that the deal was off” and “Now, I know that the Court is going to take it into consideration because the deal was that if he got arrested, then the nine-year agreement was no longer valid.” I do find that the State’s Attorney stated, without objection or contradiction, that Shaw violated the Court’s order to not be arrested for any other crimes while he was out pending sentence. I do find that neither Shaw nor his attorney objected to the refusal of the trial court to abide by the plea bargained sentence of nine years. I do find that neither Shaw nor his attorney moved the trial court to withdraw his plea of guilty. I do find that Shaw violated the bargaining agreement. I do find that Shaw was aware that if he committed a crime while at liberty the trial court was not bound to impose the nine-year sentence. I do find that Shaw through his own fault made it inappropriate for the trial court to comply with the bargain. I do find that Shaw without any mistake, misunderstanding or reasonable explanation in the record violated the bargain. See Reaves v. State, 417 So.2d 1000 (Fla. 4th DCA 1982).

Under these circumstances the trial court did not abuse its discretion. I would affirm.


author: COBB, Judge. SHARP, Judge,

text:
    David JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-550.
    District Court of Appeal of Florida, Fifth District.
    March 15, 1984.
    Rehearing Denied May 1, 1984.

      James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Div., Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

David Jackson appeals from an order revoking his probation and his subsequent sentence on three counts.

The written revocation order states that Jackson violated his probation by (1) failing to remain within the designated area of community release, and (2) consuming alcoholic beverages while on work release. Jackson pleaded guilty with an explanation to violation number one, and the lower court properly found that a probation violation had occurred. However, since no evidence was adduced at the revocation hearing to support the alcohol consumption charge, that portion of the order must be stricken. Kemper v. State, 430 So.2d 964 (Fla. 2d DCA 1983); Geri v. State, 415 So.2d 782 (Fla. 1st DCA 1982).

We are unable to determine whether the trial judge would have revoked the probation and imposed the sentence he did based solely on a violation of the first condition. Therefore, we reverse the order of revocation and remand the cause to permit the court to consider whether that violation alone warrants revocation. See Holterhaus v. State, 417 So.2d 291 (Fla. 2d DCA 1982); Watts v. State, 410 So.2d 600 (Fla. 1st DCA 1982); Jess v. State, 384 So.2d 328 (Fla. 3d DCA 1980).

Jackson also contends the trial court erred in refusing him credit for the time he served at the Cocoa Community Correctional Center as a condition of his probation. The court is required to award sentence credit for any time during which the defendant is incarcerated as a condition of probation. State v. Jones, 327 So.2d 18 (Fla.1976); Sims v. State, 369 So.2d 431 (Fla. 2d DCA 1979), cert. denied, 383 So.2d 1202 (Fla.1980). We deem the placement in the Cocoa Correctional Center to be an incarceration, requiring credit. See Calhoun v. State, 403 So.2d 1082 (Fla. 1st DCA 1981) (Jacksonville Community Correctional Center seen as adjunct of Duval County Jail with defendant entitled to credit for time he was confined there).

If the court on remand should decide to revoke Jackson’s probation, he must be given credit for the time served.

REVERSED and REMANDED.

ORFINGER, C.J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

Jackson made a detour to a drugstore while on work release to get medicine for his cold and a toothache. Jackson gave uncontroverted testimony that the counselors gave him permission to go. As a result, he missed the van that was sent to the work site to pick him up. Two hours later, a counselor found Jackson waiting at the work site. For this infraction of the community release program rules, the trial court revoked Jackson’s probation and imposed prison sentences totalling eight years. I cannot agree that the record shows a substantial or even a clear violation of probation. Compare Cuciak v. State, 410 So.2d 916 (Fla.1982), with Holt v. State, 385 So.2d 1133 (Fla. 5th DCA 1980). I would simply reverse.


author: PER CURIAM.

text:
    Jean L. BEAUPRE, etc., Appellant, v. Casper Paul TESTA, et al., Appellees.
    Nos. 83-1163, 83-1485.
    District Court of Appeal of Florida, Second District.
    March 21, 1984.
    Rehearing Denied April 26, 1984.
    Charles H. Livingston of Livingston, Patterson & Strickland, P.A., Sarasota, for appellant.
    Patrick H. Dickinson of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellees.
   PER CURIAM.

Appellant appeals the trial court’s order dismissing as party defendants, appellees Cincinnati Insurance Company and Queen City Indemnity Company. The trial court’s order of dismissal was based on the non-joinder statute, section 627.7262, Florida Statutes (Supp.1982). Appellant also appeals the final judgment entered on a jury verdict finding for the appellant in the amount of $110,000. We reverse both the order of dismissal and the final judgment.

Section 627.7262 became effective October 1,1982. The accident out of which appellant’s cause of action accrued occurred on September 28, 1981, and appellant’s cause of action was filed prior to the effective date of the statute. VanBibber v. Hartford Accident & Indemnity Insurance Company, 439 So.2d 880 (Fla.1983), holds section 627.7262 to be constitutional and not applicable to causes of action predicated on events occurring prior to the effective date of the statute. This court in Harris v. General Accident, Fire & Life Assurance Corp., Ltd., 442 So.2d 294 (Fla. 2d DCA 1983), applied VanBibber to reverse the trial court’s dismissal of the ap-pellee insurance company as a party defendant. We are required by VanBibber and Harris to do likewise.

Appellant also raises as error the failure of the trial court to give one of appellant’s requested instructions. The subject of the requested instruction was adequately covered by the court’s general instructions, and the refusal to give appellant’s requested instruction was not error.

Reversed and remanded for a new trial.

HOBSON, A.C.J., and SCHEB and CAMPBELL, JJ., concur.


author: COWART, Judge.

text:
    Paul BRISENO and Danny Briseno, Appellants, v. STATE of Florida, Appellee.
    No. 82-1571.
    District Court of Appeal of Florida, Fifth District.
    March 22, 1984.
    Rehearing Denied May 4, 1984.
    Carl Jackson Moore, Palatka, and Robert Augustus Harper, Jr., Tallahassee, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

The trial court prohibited appellant Paul Briseno from calling his daughter Vicky as an alibi witness because, while she was listed as a witness under Florida Rule of Criminal Procedure 3.220, the State had not been notified under the notice of alibi rule, Florida Rule of Criminal Procedure 3.200. In Bradford v. State, 278 So.2d 624 (Fla. 1973), the supreme court stated that whether it is the State that fails to comply with a discovery rule or the dereliction of responsibility by defense counsel, to prevent the placement of form over substance it is necessary for a trial judge in considering motions based on alleged discovery rule violations to determine more than the mere fact question of whether a discovery rule was violated.

The record before us shows that the trial court excluded the testimony of an alibi witness because the notice of alibi rule had been violated by defense counsel. The trial court’s inquiry should have considered whether the discovery violation surprised the State in preparing for trial, and if so, whether reasonable means could have been employed to overcome such disadvantage without resorting to the drastic measure of excluding evidence. We reverse the conviction of appellant Paul Briseno and remand for a new trial of his case but affirm the conviction of appellant Danny Briseno because it has been represented to this court that Vicky would have presented alibi testimony as to Paul but not as to Danny.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER, C.J., and DAVIS, S.J., Jr., Associate Judge, concur.

      . See also Richardson v. State, 246 So.2d 771 (Fla.1971).


author: SHARP, Judge.

text:
    Tyrone JONES, Appellant, v. STATE of Florida, Appellee.
    No. 83-9.
    District Court of Appeal of Florida, Fifth District.
    March 22, 1984.
    Rehearing Denied May 2, 1984.
    James K. Freeland, of James K. Free-land, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Tyrone Bernard Jones raises two arguments to overturn his convictions for carrying a concealed firearm and culpable negligence. He first argues the evidence concerning his identity as the perpetrator of the crimes was insufficient. We do not think Jones preserved this point on appeal because he failed to specify it as a basis for his motion for acquittal or for new trial. Jones also argues that the prosecutor’s closing arguments were improper and deprived him of a fair and impartial trial. Despite the fact that most of the remarks were not objected to, in view of the weak case presented against Jones we cannot view the prosecutor’s improper arguments as harmless, and we reverse for a new trial. Pait v. State, 112 So.2d 380 (Pla. 1959); Peterson v. State, 376 So.2d 1230 (Pla. 4th DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980).

The charges against Jones arose out of a shooting incident in the Altamonte Shopping Mall. A black male came out of the Jeans West Store and began struggling with a couple, Daisey and Dwight Riles, attempting to take their baby. He then pulled out a handgun and fired at Dwight. The bullet hit the wall, ricocheted and injured several bystanders. The man with the gun went back into Jeans West where a store clerk led him out the back exit.

The testimony concerning Jones’ identity as the man who fired the gun was borderline, at best. The couple with the baby did not testify. One eyewitness to the incident identified Jones, but she said she could not be certain “beyond a shadow of a doubt.” A shopper in Jeans West identified Jones also, but she had previously identified another man as being the person who exited Jeans West, and she later said she was not sure about identifying Jones. The defense witnesses, the shop clerk at Jeans West, and Jones himself, testified Jones was not the man. Jones’ girlfriend corroborated Jones’ statement that he was not at the shopping mall when the incident occurred. The shop clerk identified the man with the gun solely as “Mr. T,” a person different from Jones.

It is clear that the prosecutor felt Jones had procured, through threats or otherwise, the absence of the victims at trial, and the silence of the shop clerk. No evidence of this was presented at trial, however, and it was therefore improper for the state to make such an argument. The prosecutor argued on closing that Jones had manipulated the judicial system and made “chumps” out of the jury and judicial officers:

How did he do it? I’ll tell you how he did it. One, who are the witnesses who were announced in the beginning? I said Daisey Riles might be a witness, Dwight Riles might be here and a number of other people. Where [sic] they here? Now you heard the testimony where are those two people? They’re up in Georgia. The court told you that Count II which was the count of battery against Dwight Riles, that was dropped. The court did not dismiss the other two counts. You realize that Dwight Riles couldn’t be here to testify with Daisey Riles. They’re up in Georgia. Who helped load the truck? Mr. T.
Think about whether this is total manipulation of a man, especially Donald Peeley [the shop clerk] let him out the back door. People do not leave from the back door. He must have been intimidated because he knew he was armed. If he was intimidated there, he could be intimidated here.

In an effort to bolster his case, the prosecutor alluded to or stated his personal beliefs in Jones’ guilt and the veracity of the state’s witnesses including the following:

Mrs. Regets [the shopper in Jeans West], again, is one of the most honest people.... Donald Peeley, you’ve heard from Donald Peeley. He lied to you_ What about Tyrone Jones? I submit, that when Tyrone Jones took the stand, he lied to you.... Why didn’t anyone come forward and say so? They didn’t for the same reason as everybody protecting him, the reason, because he intimidates them.

These comments are improper and inappropriate. United States v. Rodriguez, 585 F.2d 1234 (5th Cir.1978); Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982); see Fla.Bar Code Prof.Resp., D.R. 7-106(C)(4).

The combination of the prosecutor’s improper comments and argument and the state’s tenuous case against Jones convinces us that on balance Jones did not receive a fair and impartial trial, Peterson, and that fundamental error occurred. Wilson v. State, 294 So.2d 327 (Fla. 1974). Unlike our sister court, we have not noted a flood tide of improper prosecutorial comment and argument in our district. This is one of the first cases we have reversed on these grounds. Generally prosecutions in our district are fairly and professionally handled. With a word of warning in the form of this case, we trust that it will continue to be the pattern in our district.

REVERSED AND REMANDED FOR NEW TRIAL.

DAUKSCH, J., and SCOTT, R.C., Associate Judge, concur.

      . § 790.01(2), Fla.Stat. (1981).

      . § 784.05(2), Fla.Stat. (1981).

      . Sanderson v. State, 390 So.2d 744 (Fla. 5th DCA 1980).

      . Mancini v. State, 273 So.2d 371 (Fla. 1973).

        .Wilson v. State, 294 So.2d 327 (Fla. 1974); Pait v. State, 112 So.2d 380 (Fla.1959); Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980); Simmons v. Wainwright, 271 So.2d 464 (Fla. 1st DCA 1973).

      . Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982).


author: BARFIELD, Judge.

text:
    STATE of Florida, COMMISSION ON ETHICS, et al., Appellant, v. John SULLIVAN and Wilma Sullivan, Appellees.
    No. AV-326.
    District Court of Appeal of Florida, First District.
    March 27, 1984.
    Rehearing Denied May 16, 1984.
    See also, 407 So.2d 1110 and 430 So.2d 928.

      Jim Smith, Atty. Gen., and John E. Griffin, Asst. Atty. Gen., and Philip C. Clay-pool, Staff Atty. for Com’n on Ethics, Tallahassee, for appellant. ■
    Stephen Marc Slepin of Slepin, Slepin, Lambert & Waas, Tallahassee, for appel-lees.
   BARFIELD, Judge.

The Florida Commission on Ethics (Commission) appeals from a non-final order of the trial court which held that the Commission must comply with Chapter 120 in proceedings on two complaints filed with the Commission against John Sullivan and Wilma Sullivan. We affirm.

The question before the court is whether the Commission, when it is fulfilling its constitutionally mandated function of investigating and making public reports on complaints concerning a “breach of public trust” by a public officer or employee, is subject to the provisions of Chapter 120, the Administrative Procedures Act.

Article II, Section 8(f), Florida Constitution, mandates that complaints concerning breach of'public trust be investigated and reported on by an “independent commission”. Section 8(h)(3) designates the Florida Commission on Ethics as the independent commission. It is the position of the Commission that it should be analogized to the judicial nominating commissions under Article V, Section 11. We disagree.

In construing a constitutional provision, the words should be given reasonable meaning according to the subject matter, but in the framework of contemporary societal needs and structure. Insight may be gained from historical precedent, from present facts, or from common sense. The goal intended to be accomplished or the evil sought to be prevented or remedied must be examined to determine the intent of the people in initiating enactment of the provision. In Re Advisory Opinion to the Governor, 276 So.2d 25 (Fla.1973). In the above-cited opinion, the Supreme Court held that the goal of the people in revising Article V of the Constitution to establish judicial nominating commissions was to remove some of the discretion of the governor’s office in the appointment of judicial officers and that this goal “can best be attained by providing discretion to their commissions to promulgate rules of procedure for their hearings and findings, independent of any of the three standard recognized divisions of state government.” 276 So.2d at 30. The court noted, “To allow the Governor to guide the deliberations of the commissions by imposing rules of procedure could destroy its (sic) constitutional independence.” Id. We will not question the wisdom of the Supreme Court in its treatment of the judicial nominating commissions, although the rationale we apply to the Commission on Ethics seems equally applicable to the nominating commissions. Suffice it to say that Article V, Section 11 was designed to take power away from the executive branch of government.

In contrast, Article II, Section 8 serves an entirely different purpose, and the “independent commission” entrusted with implementation of the enactment had already been created by statute to fulfill statutory functions. The Commission serves as a watchdog. It divests no one of power. It is reasonable to interpret the language of the constitutional provision to indicate the intent of the people to distinguish the authority granted the preexisting “independent commission” in Section 8(f) from the power granted the judicial qualifications commission under Article V, Section 12. It is noted that Article V, Section 12(d) expressly grants the judicial qualifications commission power to adopt rules regulating its procedures, which rules may be repealed by general law or by the Supreme Court. No such authority is found in Article II, Section 8.

It is reasonable to interpret the use of the phrase “independent commission” to mean that the people intended that the findings of the commission not be controlled or influenced by the branches of government whose conduct the Commission was meant to oversee. The Commission admits that Chapter 120 does not at present interfere with its authority, but asserts that a finding that Chapter 120 applies to the Commission would open the door to future inroads upon its “independent” status. However, if at some future date the legislature attempted to pass legislation aimed at controlling or influencing the actions of the Commission, a constitutional challenge based upon the “independent commission” language of Section 8(f) would be the appropriate remedy.

From a pragmatic standpoint, it just doesn’t make sense to allow the Commission on Ethics to follow Chapter 120 when it is proceeding against public employees for some kinds of violations and to use its own set of rules (which are similar, but not in all cases identical, to Chapter 120) in its proceedings against public employees for other types of violations. The Commission has not demonstrated that the “Sunshine Amendment” was intended to elevate it to a “constitutional status” identical to the judicial nominating commissions, nor has it shown that a finding of the applicability of Chapter 120 to its proceedings would put it at the “mercy” of the legislature, since any attempt to control or influence its decisions by statutory enactment could be challenged as unconstitutional.

AFFIRMED.

MILLS and WENTWORTH, JJ„ concur.


author: FERGUSON, Judge. BARKDULL, Judge, PER CURIAM.

text:
    PONCE DEVELOPMENT COMPANY, Appellant, v. Luis A. ESPINO and Judith B. De Espino, Appellees.
    No. 83-1146.
    District Court of Appeal of Florida, Third District.
    March 27, 1984.
    Opinion Clarified and Rehearing Denied May 8, 1984.

      Steel, Hector, Davis, Burns & Middleton and L. Martin Reeder, Jr., Palm Beach, for appellant.
    Schwartz & Nash and Dale A. Hecker-ling, Miami, for appellees.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

The dispositive issue is whether a “lack of mutuality” defect, present in the contract at its inception, was cured by the subsequent performance of the promisor.

On September 29, 1980, Ponce Development Company (appellant) and the Espinos (appellees) entered into a written contract whereby Ponce was to construct and convey to the Espinos a condominium unit for $89,800. Completion and delivery was required within thirty months. The Espinos agreed to pay a twenty percent deposit, and the balance at closing.

Within the thirty-month period allowed for completion of construction Ponce’s attorney wrote the Espinos’ attorney a letter advising him that Ponce was “ready, willing and able” to close the sale, and scheduling a closing for ten days after counsel’s receipt of the letter. On the same day the Espinos’ attorney wrote Ponce’s attorney demanding the return of the deposit. The Espinos refused to close; Ponce refused to return their deposit.

The Espinos filed a two-count complaint against Ponce seeking a declaration that the contract was unenforceable because it was executed by their son without authority and because it lacked mutuality of obligation, and seeking an award of damages in the amount of the deposit. The issues were joined. Subsequently, the Espinos filed a motion for judgment on the pleadings which alleged that the contract was void as a matter of law because it imposed no enforceable duties on Ponce, the seller. Judge Rhea Grossman heard and denied the motion by written order dated July 15, 1982. Five months later the plaintiffs moved for summary judgment, without affidavits or other proof, on the same legal ground, i.e., a challenge to the validity and enforceability of the agreement. The motion was heard and granted by another judge. This appeal is brought from that summary judgment.

We agree that the construction contract in this case, as drafted by Ponce, lacked mutuality of obligation at its inception in that the promisor’s (Ponce’s) duty under the agreement was optional. As long as the contract remained a bilateral executory agreement it was unenforceable against the Espinos. See Sanchez v. Crandon Wholesale Drug Co., 173 So.2d 687 (Fla.1965), adopting Florida-Georgia Chemical Co. v. National Laboratories, Inc., 153 So.2d 752 (Fla. 1st DCA 1963); Allington Towers North, Inc. v. Rubin, 400 So.2d 86 (Fla. 4th DCA 1981). But when the contract became executed by the promisor’s full performance according to the terms of the contract — except as to transfer of title at a clo.sing, which final act was impeded by the promisee — the defect of lack of mutuality of obligation was cured and could not be a defense to enforcement of the contract. In reversing we rely also on Russell v. Martin, 88 So.2d 315 (Fla.1956); Le Noir v. McDaniel, 80 Fla. 500, 86 So. 435 (Fla.1920) (lack of mutuality is no defense in the case of a contract which, although unenforceable at its inception because of such defect, is executed by performance of the promisor, thus becoming binding on the parties); and Wright & Seaton, Inc. v. Prescott, 420 So.2d 623 (Fla. 4th DCA 1982) (a promise lacking mutuality at its inception becomes binding on the promisor after performance by the promisee; thus, where appellant did not perform for the entire year only because appellee made it impossible for appellant to do so, appellant’s performance of the promise was complete). See also Fernandez v. Vazquez, 397 So.2d 1171 (Fla. 3d DCA 1981) (a party’s good faith cooperation is an implied condition precedent to performance of a contract and when that cooperation is withheld the recalcitrant party is estopped from availing himself of his own wrongdoing).

Reversed and remanded.

BARKDULL, Judge,

dissenting.

The contract in the instant case provided that the seller had no responsibility to the purchaser, Espino. Prior to any tender of complete performance by the seller, the purchaser elected to rescind. I think the case is controlled by Allington Towers North, Inc., v. Rubin, 400 So.2d 86 (Fla. 4th DCA 1981) and the trial court should be affirmed.

ON MOTION FOR CLARIFICATION

PER CURIAM.

The discussion in the majority opinion-considers only those facts which favor the nonmoving party, and the conclusion reached does not establish a law of the case. The holding is simply that the mov-ant failed to establish conclusively the nonexistence of genuine issues of fact, therefore, summary judgment was inappropriate. Holl v. Talcott, 191 So.2d 40 (Fla. 1966).

      . One of the points on appeal is that it was error to grant a summary judgment on the same principle of law on which the motion was previously denied absent new proofs, citing Unger v. Bergness, 172 So.2d 627 (Fla. 3d DCA 1965) and Calder Race Course, Inc. v. Metropolitan Dade County, 42 Fla.Supp. 129 (Fla. 11th Cir.Ct.1975). It is unnecessary to address this point because the "lack of mutuality” issue is dispositive.


author: ORFIÑGER, Chief Judge. COWART, Judge,

text:
    Connie Sue GAMBLE, Appellant, v. STATE of Florida, Appellee.
    No. 82-1119.
    District Court of Appeal of Florida, Fifth District.
    March 29, 1984.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFIÑGER, Chief Judge.

In this appeal from a judgment of conviction and sentence, appellant contends that the court did not honor the plea agreement by virtue of which she changed her original plea of “not guilty” and pleaded “guilty” instead. We reverse.

The agreement with the State for appellant’s plea was that on one count she would be sentenced to time served, and on the other count adjudication of guilt would be withheld and she would be placed on probation, one condition of which would be that she would serve fifty-one weeks in the county jail. The trial court accepted the plea based on these negotiations, subject only to appellant’s cooperation with the State as agreed, and to receipt of a presen-tence investigation. No other conditions were suggested by the court nor made a part of the plea bargain. There is no contention that defendant violated any of the stated conditions — only that she did not appear for sentencing, which clearly was not a condition upon which the plea was accepted. Appellant failed to appear at the appointed time for her sentencing and when later apprehended and brought to sentencing, her counsel asked the court to recall the plea discussions. The trial court replied, “I do, and they also called for her to appear in court for sentencing, which she refused to do” and, thereupon, appellant was adjudicated guilty and sentenced to two concurrent five-year prison terms.

We must first determine if we have jurisdiction to consider this appeal because of the provisions of Florida Rule of Appellate Procedure 9.140(b), which provides that a defendant may not appeal from a,judgment entered on a plea of guilty. See also, Fla.R.Crim.P. 3.172(c)(iv) and § - 924.06(3), Fla.Stat. (1981).

In Robinson v. State, 373 So.2d 898 (Fla. 1979), the supreme court held that:

... There is an exclusive and limited class of issues which occur contemporaneously with the entry of the plea that may be the proper subject of an appeal. To our knowledge, they would include only the following: (1) the subject matter jurisdiction, (2) the illegality of the sentence, (3) the failure of the government to abide by the plea agreement, and (4) the voluntary and intelligent character of the plea....

Id. at 902.

In Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979), the court held that where it was contended that the plea was not voluntarily or intelligently made, the adjudication could not be appealed, but the defendant must first file a motion in the trial court to withdraw the plea, following which an appeal could be taken from an adverse ruling on the motion. This court has agreed with the rationale of Counts, and has dismissed appeals taken from both guilty pleas and pleas of nolo contendere. See, e.g., Byrd v. State, 419 So.2d 725 (Fla. 5th DCA 1982); Skinner v. State, 399 So.2d 1064 (Fla. 5th DCA 1981).

In Counts, the court found that the only appealable issue which might apply was the question of the voluntary and intelligent character of the plea. This is one of the four issues which Robinson recognizes as subject to review following a guilty plea. The Counts court held, and we agree, that where the issue is the voluntary and intelligent character of the plea,

[T]he purposes of requiring a motion to withdraw the guilty plea as a prerequisite to an appeal are obvious. This procedure enables the trial judge to pass on any points raised and establishes a record on which an appellate court may base an informed and reasoned disposition of the appeal. Were it not for this record of the motion hearing, the only evidence of voluntariness in the vast majority of appeals would be the colloquy between the trial judge and the defendant. In most instances, therefore, the appellate court would not have a sufficient basis to render an informed decision on the issue of voluntariness. By requiring the defendant to make a prior motion to withdraw, however, the question of voluntariness will first be put to the trial court which can conduct an evi-dentiary hearing, and, if necessary, entertain collateral evidence in support of the defendant’s position. If a trial court rules against the defendant on the motion to withdraw, that decision may be challenged upon appeal from the judgment and sentence.

376 So.2d at 60.

The absence of an adequate record when the issue is the voluntary and intelligent nature of the plea is not the problem here. In this case, the record of the plea bargain is clear, as is the trial court’s acceptance of it upon the conditions mentioned. No condition was imposed on acceptance that appellant be present for sentencing or “all bets are off.” The trial court’s recollection that such a condition was imposed is not supported by the transcript of the plea hearing. Thus this case is distinguishable from the recent case of Parker v. State, 446 So.2d 250 (Fla. 5th DCA 1984) where the condition that defendant appear for sentencing was clearly imposed on and accepted by defendant as part of the plea bargain.

The acceptance of a tendered guilty plea places the accused in jeopardy and prohibits the vacating of that plea without legal cause. Reyes v. Kelly, 224 So.2d 303 (Fla.1969), cert. denied, 397 U.S. 958, 90 S.Ct. 961, 25 L.Ed.2d 142 (1970). Although jeopardy has attached, if the plea is accepted conditionally and defendant fails to comply with the condition, the court is justified in vacating the plea. Brown v. State, 367 So.2d 616 (Fla.1979). Misrepresentation to the court that the plea agreement has been complied with has been held to constitute good cause to vacate a sentence and the plea on which it was based. Lerman v. Cornelius, 423 So.2d 437 (Fla. 5th DCA 1982). However, notwithstanding the restrictions upon the setting aside of a plea after acceptance by the court, the court is nevertheless not bound by any sentencing agreement, even if concurred in by the court as part of the plea bargain. State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA 1978).

Nevertheless, when a trial judge approves or tentatively accepts a plea bargain and later decides not to include the concessions contemplated by the negotiations, he must first offer the defendant an opportunity to withdraw the plea. Davis v. State, 308 So.2d 27 (Fla.1975). As noted by the Supreme Court,

... If for any reason the plea bargain is not carried out, the defendant has two alternatives: (1) he may withdraw his plea and proceed to a disposition of the matter without any of his admissions, statements, or other evidence given in the plea negotiations being used against him; or (2) he may agree to proceed with the guilty plea without being bound by any conditions or agreements. The result is that, if the trial judge decides not to fulfill the tentative plea agreement, the case is returned to the position it was in prior to the plea negotiations, thereby imposing no unfair disadvantage on a defendant.

308 So.2d at 29. See also, Folske v. State, 430 So.2d 574 (Fla. 5th DCA 1983); La Baissiere v. State, 429 So.2d 96 (Fla. 2d DCA 1983); Nesmith v. State, 374 So.2d 1139 (Fla. 2d DCA 1979).

Here, the acceptance of the plea by the court was not conditioned upon defendant appearing for sentencing, so the trial court was not free to depart from the negotiated plea because of such non-appearance without first offering defendant an opportunity to withdraw it. Since it is clear from the record that the court was reminded of the negotiations, was aware of them and refused to go along with the negotiated sentence, we would only require the doing of a useless, act were we to require that defendant file a formal motion to withdraw her plea. The trial court sufficiently indicated that such motion would be rejected.

The judgment of conviction and sentences are set aside and the case is remanded so that the trial court may either sentence appellant in accordance with the negotiated plea or offer the appellant an opportunity to withdraw her plea, and for such further proceedings as are consistent herewith.

REVERSED and REMANDED.

DAUKSCH, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979), comments on but one small reason (the ability to provide an evidentiary hearing as to the voluntariness on a motion to withdraw a plea) for the broader rule that any attack on a plea should be initiated in the trial court and appeal taken from an adverse ruling rather than for an appellate court to consider the attack for the first time on appeal. The broader reason for the rule is that appellate courts exist not to supervise trial courts but to review for judicial error occurring in the trial court. While a trial court may err in its initial action it is also the first level judicial forum provided by law for the correction of its own errors and until some claimed error is timely and properly called to the attention of the trial court and correction sought (by contemporaneous objection or otherwise by motion, etc.) and denied, the trial court has not legally erred justifying appellate review. Part of the reason for the rule inheres in a proper appreciation of the error reviewing authority of the trial court and for the respective functions of the two judicial levels. A disregard for the rule results in many matters being unnecessarily presented for appellate review that would have been corrected at the trial level if properly first presented there. There are enough deserving matters for appellate review without encouraging unnecessary appellate review by failing to exercise appellate restraint and by failing to require litigants to exhaust the error correcting jurisdiction of the trial court in accordance with due process. What an appellate court eagerly assumes to be a clear record is often not clear and not incorrect when examined at the trial level. See Matson v. State, 445 So.2d 1121 (Fla. 5th DCA 1984).


author: DAUKSCH, Judge. SHARP, Judge,

text:
    Leonard DEL PERCIO and Laura Iris Moore, Petitioners, v. The CITY OF DAYTONA BEACH, Respondent.
    Nos. 83-155, 83-231.
    District Court of Appeal of Florida, Fifth District.
    March 29, 1984.
    Rehearing Denied May 2, 1984.
    Eric A. Latinsky, Ormond Beach, for petitioners.
    Frank B. Gummey, III, Robert G. Brown and Reginald E. Moore, Daytona Beach, for respondent.
   DAUKSCH, Judge.

This matter is before us upon a petition for writ of certiorari to the circuit court which, acting in its appellate capacity, declared a city ordinance constitutional and upheld convictions of petitioners for having violated the ordinance. We issue the writ, quash the order declaring the ordinance constitutional, reverse the convictions and declare the following Daytona Beach Ordinance Number 81-334, creating Section 5-25 of the City Code, to be vague, over-broad, not fairly enforceable, and thus unconstitutional. The portions of the ordinance at issue provide:

(b) No female person shall expose to public view any portion of her breasts below the top of the areola or any simulation thereof in an establishment dealing in alcoholic beverages.
(d) No person maintaining, owning or operating an establishment dealing in alcoholic beverages shall suffer or permit any female person to expose to public view any portion of her breasts below the top of the areola or any simulation thereof within the establishment dealing in alcoholic beverages.

If legislation, in the form of a statute or ordinance, is vague, open to interpretation which could lead to prosecution for “innocent” conduct; if it is legislation not easily interpreted by reasonable persons and leaves unbridled discretion to police and judicial officers, then it is violative of constitutional standards. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Zachary v. State, 269 So.2d 669 (Fla.1972); State v. Buchanan, 191 So.2d 33 (Fla.1966); Marrs v. State, 413 So.2d 774 (Fla. 1st DCA 1982); Steffens v. State, 343 So.2d 90 (Fla. 3d DCA 1977).

It is the duty of the legislative body, here the city commission, to define as clearly and succinctly as possible what conduct the ordinance intends to proscribe. The ordinance in this case can be and has been variously interpreted by the circuit and county court in Volusia County. The record shows that the phrase prohibiting exposure of any portion of the breast below the top of the areola has been interpreted by learned, experienced, reasonable judges as follows.

Three of the lower court orders (entered by Volusia County Judge McDermott) interpret Section (b) of the ordinance to require a female person to expose at least a portion of her areola to the public view in order to be in violation. With this limitation engrafted, the court found Section (b) of the ordinance not unconstitutionally vague or overbroad in those cases. Judge McDermott also stated in The City of Daytona Beach v. Young, that an Orange County circuit court had construed the phrase “at or below the areola thereof” in a similar ordinance to require only that the areola itself be covered. In that case (Spees v. State, Orange County Circuit Court Case No. CJAP 78-72), the court stated that it interpreted the phrase to mean “from the upper portion of the areola to the bottom of it on each breast.” The court also stated that “[tjhis would not require a covering on a line running from the top of one areola across to the top of the other” since “[tjhat interpretation would require more covering than is presently seen on our beaches or behind ski towboats.”

In a later order written by Judge McDer-mott, entitled Final Order of Disposition (combining several cases, including one on review here) another interpretation of Section (b) is provided. In this order, the court “clarified” the previous orders because the defendants in this case were only using “pasties” on the areolae and allowing the remainder of their breasts to be exposed. Judge McDermott now ruled that “the areola must be concealed by a brassiere-type cover made of an opaque fabric which does not and cannot adhere directly to the breasts without the aid of supporting straps, for a defendant to be found not to have violated” the pertinent subsection of the ordinance.

One of the defendants in the preceding case appealed to the circuit court (Keiser v. The City of Daytona Beach, Circuit Court Case No. 83-3161-CA-01-D) and that court found that the ordinance must be- read so that it prohibits exposure of breasts as described in the ordinance, but without extending the prohibition to include those types of attire which are commonly accepted by modern society. The circuit court held that Judge McDermott’s interpretation of the ordinance to require a certain type of clothing (a brassiere-type top with straps) added terms to the ordinance which were not placed there by the city, bringing into the ordinance’s prohibition many types of female attire which are commonly accepted by modern society. The circuit court found that the ordinance, as interpreted by the county court, was overbroad.

Another county court order which provided an interpretation of Section (b) (although in dictum) was that entered in City of Daytona Beach v. Ducille and Grier, County Court Case Nos. V82-6886 DB and V82-6880 DB. Volusia County Judge Josephson stated: “At least the ordinance in question, by proscribing the exposure of breasts has a reference point by prohibiting the exposing of the breast ‘below the top of the areola.’ ” The court stated that this is a reasonable restraint and added “otherwise any person entering an establishment where alcoholic beverages are served and wearing a low cut dress would be subject to violation, having exposed the upper portion of her breast.” The order did not consider the fact that some portion of the lower part of the breast may be exposed by some “low cut” dresses or other forms of attire.

Petitioners argue, reasonably, that they too are uncertain as to what conduct is permissible under the ordinance. For example, they argue and we accept that many modern-day bathing suits commonly worn in motel swimming pool and beach concession or bar areas, where alcoholic drinks are sold, reveal a portion of a female’s breasts below the top of the areolae, either from a view of the side or the front, or both. Many halter tops, tank tops, tube tops and bikini tops, often worn by females in certain bars and other recreational areas serving alcoholic beverages, are so constructed that a lower portion of the breast may be partially exposed. Some evening gowns, split down the front or the sides, worn in style and considered acceptable by society,’ are- also so revealing that they would probably violate the ordinance. The ordinance declares that any portion of the breast below the areola must not be exposed. We do not believe that the ordinance was intended to control all forms of attire where this exposure may occur (such as mentioned above), but the ordinance, as worded, does not make this clear. The ordinance is overbroad because it also bars acceptable, legitimate attire or conduct.

The behavior which we believe was intended to be, and should be, proscribed is topless dancing. There are legitimate public welfare and crime prevention interests to be served by disallowing this sometimes lewd conduct. Topless dancing, especially where alcohol is served, leads to other crimes. Baser urges are excited through the use of alcohol, which releases inhibitions in some individuals. See New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981) (recognizing that nudity coupled with alcohol in public places begets undesirable behavior). So we agree with the city commission that governmental control is proper under the police power and there is no first amendment violation here. As in Fillingim v. State, 446 So.2d 1099 (Fla. 1st DCA 1984) (corrected opinion; original opinion at 8 F.L.W. 2947), we agree that the county’s interest in regulating nude entertainment is unrelated to the suppression of free expression, since the ordinance does not impose a total ban on nude entertainment in the county, but is rather responsive to the problems associated with the combined uses of nudity and alcohol at commercial establishments, and, as such, represents a legitimate restriction on such entertainment. However, contrary to Fil-lingim, the record in this case shows that even learned trial judges have had to guess at the ordinance’s meaning and have differed as to its application, rendering the ordinance unconstitutional.

In Fillingim, the court found that a similar ordinance was not unconstitutionally overbroad or void for vagueness, simply stating that the ordinance sufficiently defined and described its proscriptions in terms of place, type of conduct and the extent of exposure forbidden. Apparently, the court was not faced with a similar record of various interpretations by the lower courts of a particular proscription of the ordinance. In any event, the court in Fillingim provides no further explanation or rationale for its decision and we do not find it persuasive in our holding as to the ordinance in this case.

Topless dancing can and should be controlled, but the government must not subject innocent citizen behavior to prosecution by enacting an ordinance loosely drawn to permit policemen, prosecutors and judges to interpret and decide what behavior each of them would say is viola-tive. As stated by the court in Marrs v. State, 413 So.2d 774, 775 (Fla. 1st DCA 1982):

[i]t is well settled that the language of a statute or ordinance must convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. When people of ordinary intelligence must necessarily guess at its meaning and differ as to its application, the statute or ordinance violates the due process clause of the 14th Amendment to the United States Constitution and Article I, Section 9, of the Florida Constitution (1968). Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); State ex rel. Lee v. Buchanan, 191 So.2d 33 (Fla.1966). [Emphasis added].

Similarly, in Steffens v. State, 343 So.2d 90, 91 (Fla. 3d DCA 1977) the court recognized the foregoing principles and held that a municipal ordinance prohibiting “female waitresses, entertainers, or other employees of any public business to expose themselves above the waist to the extent that the breasts are bare or so thinly covered by mesh, transparent net, lawn skin tight materials which are flesh colored and worn skin tight so as to appear uncovered,” was unconstitutional as being void for vagueness. The court also stated:

In view of the scanty female apparel which is now socially acceptable in public particularly on beaches, the description of the type of clothing forbidden by this ordinance is extremely unclear. Moreover, the ordinance does not limit the proscribed acts as to place. A female waitress might very well be in violation of this ordinance if she bared her breasts while taking a shower in her home or in a public shower stall.

Id.

We believe that the record before us in the ease at bar shows that the ordinance in question (particularly that portion dealing with exposure of the breasts) omits certain necessary and essential provisions which would serve to impress the acts committed as being wrongful and criminal and “the courts are not at liberty to supply the deficiencies or undertake to make the ... [ordinance] definite and certain.” State v. Buchanan, 191 So.2d 33, 36 (Fla.1966). As stated by the Florida Supreme Court in Brock v. Hardie, 114 Fla. 670, 154 So. 690, 694 (1934):

We must apply our own knowledge with which observation and experience have supplied us in determining whether words employed by the statute are reasonably clear or not in indicating the legislative purpose, so that a person who may be liable to the penalties of the act may know that he is within its provisions or not.

We hold, as did the Court in Papachristou et al. v. City of Jacksonville, 405 U.S. 156, 162-163, 92 S.Ct. 839, 843-844, 31 L.Ed.2d 110 (1972), that

[t]his ordinance is void for vagueness, both in the sense that it “fails to give a person of ordinary intelligence fair notice that his [or her] contemplated conduct is forbidden by the statute,” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066.

Although we recognize a certain amount of conflict with Fillingim v. State, 446 So.2d 1099 (Fla. 1st DCA 1984) (corrected opinion; original opinion at 8 F.L.W. 2947) in that an ordinance similar in wording to that in the case sub judice was found constitutional, we do not perceive an express or direct conflict for certification because we have not ruled upon the same ordinance and because we have before us a record demonstrating that persons in our community have had to guess at the meaning of the ordinance’s proscription and differed as to its application. Accordingly, we find Daytona Beach Ordinance Number 81-334 to be vague and overbroad. We grant cer-tiorari, quash the lower court order declaring the ordinance constitutional and remand this cause with directions to reverse the convictions.

Writ issued.

FRANK D. UPCHURCH, Jr., J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I dissent because the Daytona Beach ordinance is not facially unconstitutional, since it can be, (and should be, I submit) construed to avoid the extreme interpretations suggested as possible by the majority. Nor is the ordinance unconstitutional as applied in the instant cases because the dancers wore insufficient clothing above their waists to meet the requirements of the strictest interpretation of the ordinance. Varying interpretations of similarly worded ordinances by different lower court judges in this appellate district do not alter this record from that in Fillingim v. State, 446 So.2d 1099 (Fla. 1st DCA 1984). It just makes our job as an appellate court clearer: give the ordinance a permissible constitutional meaning.

Del Percio is the part owner of Function Junction, a lounge in Daytona Beach. On November 20, 1981, he was present in the lounge when, at approximately 7:50 p.m., the Function Junction stopped serving alcohol. Shortly thereafter, an employee of the lounge, Ms. Lois Young, appeared on stage, and danced without any covering over her breasts. Both Young and Del Percio were cited by Daytona Beach Police and given notices to appear. Del Percio subsequently filed a motion to dismiss raising the constitutionality of the ordinance, which was denied by the trial court. Del Percio then pleaded nolo contendere reserving his right to challenge the ordinance’s constitutionality. On appeal, the circuit court affirmed without opinion his conviction, and he then filed a petition for writ of certiorari with this court pursuant to Florida Rule of Appellate Procedure 9.030(2)(B).

On December 9, 1981, Moore was left in charge of the Red Garter Club, a bar in Daytona Beach, by Mr. Chris Janise, the owner. While she was serving alcoholic beverages to customers at the bar, an employee of the club, Ms. Judy Grimes, danced on the stage for fifteen to twenty minutes with nothing over her breasts except strips of opaque tape that covered the areolae. Like Del Percio, Moore filed a motion to dismiss challenging the constitutionality of the ordinance. She was found guilty of the charge in a non-jury trial and assessed a five hundred dollar ($500.00) fine or a ten day jail term.

The portion of the ordinance involved in the Moore and Del Percio cases makes criminal the following conduct:

Section l.(b) No female person shall expose to public view any portion of her breasts below the top of the areola or any simulation thereof in an establishment dealing in alcoholic beverages....
(d) No person maintaining, owning, or operating an establishment dealing in alcoholic beverages shall suffer or permit any female person to expose to public view any portion of her breasts below the top of the areola or any simulation thereof within the establishment dealing in alcoholic beverages.

Daytona Beach, PI., Ordinance 81-334 (Oct. 21, 1981). Although ordinance 81-334 is commonly referred to as an anti-nudity dancing law, the conduct prohibited is the public exposure of a female’s breasts in establishments which sell or permit the consumption of alcohol.

I.

FIRST AMENDMENT AND TWENTY-FIRST AMENDMENT

FEDERAL CONSTITUTION

The applicability of the twenty-first amendment as a basis for the ordinance in question must first be passed on in order to determine whether we must apply the strict scrutiny test used in cases where it is claimed first amendment rights are violated. Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). I agree with our sister courts that under the Home Rule Act, cities in Florida have been delegated all of the powers the state may have, and they may legislate on those subjects without an express delegation of power, so long as their ordinances do not conflict with state statutes, or purport to affect an area of law which has been preempted by general state legislation. City of Miami Springs v. J.J.T., Inc., 437 So.2d 200 (Fla. 3d DCA 1983); State v. Redner, 425 So.2d 174 (Fla. 2d DCA 1983); City of Miami v. Rocio Corporation, 404 So.2d 1066 (Fla. 3d DCA), petition for review denied, 408 So.2d 1092 (Fla.1981); see City of Miami Beach v. Forte Towers, Inc., 305 So.2d 764 (Fla.1974).

The State of Florida, under the twenty-first amendment to the United States Constitution, apparently has broad power to regulate conduct and dress in establishments where alcohol is served to the public. California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 390 (1972). The State of Florida has not seen fit to legislate in this area, which means that such city ordinances do not conflict with state statutes, nor do they fall into a preempted area of state legislation. City of Miami Springs; Board of County Commissioners v. Dexterhouse, 348 So.2d 916 (Fla. 2d DCA 1977), approved in Martin v. Board of County Commissioners of Lee County, 364 So.2d 449 (Fla.1978); see Nelson v. State, 157 Fla. 412, 26 So.2d 60 (1946).

An ordinance that completely bans nude dancing or entertainment within a city apparently violates the first amendment of the Federal Constitution. Schad; Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Basiardanes v. City of Galveston, 682 F.2d 1203 (5th Cir.1982); San Juan Liquors v. Consolidated City of Jacksonville, 480 F.Supp. 151 (M.D.Fla.1979). However, nude dancing may be limited and regulated as to time and place where such activities will be permitted within a city. Young v. American Mini Theaters, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). A prohibition which is limited to commercial establishments where alcohol is served for consumption on the premises has been held valid by the United States Supreme Court against first amendment challenge on the premise that the twenty-first amendment to the Federal Constitution grants states the power to completely prohibit the sale of alcohol. New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981).

In order to properly promulgate an ordinance under the twenty-first amendment which prohibits non-obscene conduct or expression otherwise within the penumbra of the first amendment, there must be a basis in the record justifying the need for the state’s restrictions. In LaRue, there was extensive testimony in the record that the type of nudity and sexually explicit conduct prohibited had led to sordid and lewd conduct in bars and nightclubs, and had been responsible for an increase in prostitution, rape, and assaults on police officers in the vicinity. The Court denied first amendment and fourteenth amendment protection to “that sort of bacchanalian revelries.... ” 409 U.S. at 118, 93 S.Ct. at 397.

In the Bellanca case, the Court upheld a New York statute that prohibited a female from exposing any part of her breast “below the top of the areola ...” in premises licensed to sell alcohol for consumption on the premises. 452 U.S. at 715 n. 1, 101 S.Ct. at 2600 n. 1. The Court based its holding on the justification for the statute contained in the New York State Legislative Annual. The legislature asserted that nudity coupled with alcohol in public places had resulted in undesirable behavior, “which is now quite out of hand.” 452 U.S. at 260, 101 S.Ct. at 2601.

The record in this case contains no documentation of Daytona’s need to impose the restrictions set forth in the ordinance. However, the ordinance itself contains a preamble similar to the one that passed muster in Bellanca:

It is hereby found that the acts prohibited in section one above encourage the conduct of prostitution, attempted rape, rape, murder, and assaults on police officers in and around establishments dealing in alcoholic beverages, that actual and simulated nudity and sexual conduct and the depiction thereof coupled with alcohol in public places begets undesirable behavior, that sexual, lewd, lascivious, and salacious conduct among patrons and employees within establishments dealing in alcoholic beverages results in violation of law and dangers to the health, safety, and welfare of the public, and it is the interest of this ordinance to prohibit nudity, gross sexuality, and the simulation and depiction thereof in establishments dealing in alcoholic beverages.

Preamble to the Daytona Beach Ordinance, supra.

I conclude that the ordinance, construed narrowly as I think necessary to avoid other constitutional challenges, is within the city’s twenty-first amendment powers. Even though it may impinge to a degree on nude dancing, which is behavior that is within the protection of the first amendment and article I, section 4, of the Florida Constitution, cities may forbid nudity in establishments selling alcohol for consumption on the premises so long as there is a basis in the record to conclude that nudity in commercial enterprises where alcohol is consumed on the premises has led to conduct damaging to the public welfare, such as an increased incidence of serious crimes and nuisance type of behavior.

II.

DUE PROCESS FOURTEENTH AMENDMENT, FEDERAL CONSTITUTION

AND ARTICLE I, DECLARATION OF RIGHTS, FLORIDA CONSTITUTION

When an ordinance is brought under constitutional challenge, we must first determine if the petitioners raising the question have standing to do so. Unlike challenges under the first amendment where over-broad arguments can be asserted even though the challenger is outside of that amendment’s protection, challenges based on due process and other grounds do not generally allow a person clearly outside constitutional protections to raise such arguments which may be available to others.

Petitioners argue that the ordinance is vague and therefore void because it is unclear to a female person in an under-dressed condition which establishments she must refrain from entering. However, the City Code defines what is meant by an “establishment dealing in alcoholic beverages:”

Any business or commercial establishment (whether open to the public at large or where entrance is limited by cover charge or membership requirement) including those licensed by the state for sale and/or service of alcoholic beverages and any bottle club; hotel; motel; restaurant; night club; country club; cabaret; meeting facility utilized by any religious, social, fraternal or similar organization; business or commercial establishment where a product or article is sold, dispenses, served or provided with the knowledge, actual or implied, that the same will be, or is intended to be mixed, combined with or drunk in connection or combination with an alcoholic beverage on the premises of said business or commercial establishment; or business or commercial establishment where the consumption of alcoholic beverages is permitted.

CITY OF DAYTONA BEACH, FLA., CODE § 5-1 (1971). The language is broad enough to encompass places it was not intended to reach, e.g., female guests in bikini bathing suits being served beers pool-side at a beachside hotel. However, in these cases the dancers performed in the Red Garter and the Function Junction. Both establishments are commercial bars or nightclubs, and are clearly targeted by the ordinance.

Petitioners also argue that the challenged portion of the ordinance which delineates the area of the breast which must be covered, “[a]ny portion of her breasts below the top of the areola ...,” is unclear and vague as to the state of undress that will cause the ordinance to be violated. In Del Percio’s case, the dancer wore nothing on her breasts, and under any interpretation of the ordinance her conduct was clearly prohibited. I would, therefore, affirm any conviction premised on her conduct. In Moore’s case, the dancer covered only the areolae portions of her breasts. At the motion to dismiss the trial court ruled that the exposure of any lateral part of the breast below the top of the areola violated the ordinance.

“Areola” is an accepted medical and scientific word. It is defined as “the darkened ring surrounding the nipple of a breast.” Dorland’s Illustrated Medical Dictionary 110 (26th ed. 1981). The problem with using this term in an ordinance is that although it is exact and precise, it may be unknown to most adults at this time and place. However, Moore failed to put any proofs in the record concerning this fact, and she did not argue that she was unaware of the meaning of the term. Further, a similar ordinance using the term “areola” has been upheld against this constitutional attack. See City of Miami Springs.

I am more persuaded by Moore’s argument that the wording “any portion ... below the top of the areola ...” is itself ambiguous, and, if interpreted literally, as the city argues and the trial court ruled, the ordinance would be violated if any lateral portion of a female breast were exposed below a straight line drawn across her chest from the top of each areola. The city agreed at oral argument that under this interpretation of the ordinance, ninety percent of women’s current bathing suits, and many low-cut evening gowns and cocktail dresses currently in fashion would violate this ordinance. Of course, the city assured us, female patrons .who innocently entered a bar to consume a beer, dressed in beach clothes, would not be prosecuted.

Were I to agree with the city’s interpretation of the ordinance, I would have difficulty in upholding it against constitutional challenge. The ambiguity of where to draw the neckline, although amusing to many, cannot be tolerated because this is a criminal statute. As such it must be strictly interpreted, and it should give clear and fair warning as to the conduct which it is meant to prohibit. Zachary v. State, 269 So.2d 669 (Fla.1972); State v. Buchanan, 191 So.2d 33 (Fla.1966); Marrs v. State, 413 So.2d 774 (Fla. 1st DCA 1982); Steffens v. State, 343 So.2d 90 (Fla. 3d DCA 1977).

The unconstitutionality of vague laws has long been recognized by our state supreme court and the federal Supreme Court. In Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), Justice Marshall summarized the two rationales for this doctrine:

Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory, enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

408 U.S. at 108-109, 92 S.Ct. at 2299.

Further, in light of the city’s justification for its ordinance, I question whether it has the power under the twenty-first amendment and the fourteenth amendment to the Federal Constitution, as well as article I of the Florida Constitution, to make criminal the act of wearing garments which are common place and acceptable in current society. In City of Miami v. Kayfetz, 92 So.2d 798 (Fla.1957), our state supreme court held unconstitutional as a violation of section I of the Florida Constitution, an ordinance which prohibited employees of bars from drinking any alcoholic beverages while they were on the premises where they were employed. The court said there was no rational connection between public health, morals, safety and general welfare and the ordinance which was designed to correct a condition which adversely affected the public good. The ordinance was too broad in its attack on a real problem (B-girls fraternizing with patrons), because it also prohibited acceptable and legitimate conduct.

Recently our sister courts have invalidated, on similar grounds, city ordinances which barred minors from appearing in any public place from 10:00 p.m. to 5:00 a.m., S.W. v. State, 431 So.2d 339 (Fla. 2d DCA 1983), and from 11:00 p.m. to 5:00 a.m., W.J.W. v. State, 356 So.2d 48 (Fla. 1st DCA 1978). Both courts held that the ordinances were too broad a restriction on the inherent personal liberties of our citizens, which are guaranteed by article I of the Florida Constitution. As Judge Grimes said in S. W. v. State:

Government has a legitimate right to enact laws for the protection of minors, but such laws must reasonably relate to their purpose without unduly limiting individual freedoms.

Id. at 341.

In view of the substantial constitutional challenge to this ordinance, we should, if possible, seek to interpret it in such a way that avoids those problems. In this case, a more limited interpretation of the challenged ordinance is possible. Some “topless” ordinances specify that part of the breast which cannot be exposed is any area at or directly below the top of the areola. See City of Miami Springs. Other ordinances with wording similar to Daytona’s have been assumed to bar nudity as opposed to ordinary acceptable beachwear. See Bellanca; Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir.), cert. denied, 459 U.S. 859, 103 S.Ct. 132, 74 L.Ed.2d 113 (1982); Dexterhouse. I would construe this ordinance as barring only the exposure of the female breast encompassing the area of the areola and that portion of the breast directly below it. Based on this interpretation the dancer in Moore’s case violated the ordinance and I would affirm her conviction as well as Del Per-cio’s.

in.

LEGALITY OF SENTENCE IMPOSED ON MOORE

A reversible error which did occur in Moore’s case was that the trial judge imposed a fine on her of five hundred dollars ($500.00) or an alternative jail term primarily because she insisted on her right to trial and refused to enter a nolo contendere plea, as had the other defendants charged with the violation of the ordinance. The other defendants received no fines or penalties. In justifying this discrepancy the trial judge said:

In this particular instance, we have— rather I have before me the question of an individual who has not only previously maintained that this is an unconstitutional ordinance, but, that in spite of that argument, nevertheless, she is innocent of violating the ordinance.

However, a defendant’s choice of plea or insistence on right to trial should play no part in the determination of her sentence by the trial judge. Gillman v. State, 373 So.2d 935 (Fla. 2d DCA 1979). For this reason, I would vacate the sentence imposed on Moore and remand her case to the lower court for resentencing. See State v. Smith, 360 So.2d 21 (Fla. 4th DCA), cert. denied, 366 So.2d 885 (Fla.1978); Davis v. State, 277 So.2d 790 (Fla. 2d DCA 1973); Daniels v. State, 262 So.2d 725 (Fla. 3d DCA 1972).

For the reasons stated in this dissent, I would deny Del Percio’s petition for certio-rari, and grant Moore’s petition, vacate the sentence imposed upon her, and remand her case to the trial court for resentencing.

      . The City of Daytona Beach v. Young, County Court Case No. V82-12100 DB; The City of Daytona Beach v. Grier, County Court Case No. V82-12397 DB; The City of Daytona Beach v. Del Pinto, County Court Case No. V82-13010 DB.

      . City of Daytona Beach v. Moore, No. V83-4740 DB, Keiser, No. V83-4736 DB; Graham, No. V83-4734 DB; Davis, No. V83-4731 DB; Dalmer, No. V83-4730 DB; Del Percio, No. V83-4732 DB and V83-4733 DB; and Heiser, No. V83-4735 DB.

      . Higher crime statistics are evident in areas where topless dancing and other sexual misconduct is extant (for example, New York’s 42nd Street or Times Square, or even as close as Orlando’s South Orange Blossom Trail).

      . The City of Daytona Beach has controlled sign placements, apartment buildings and commercial developments through judicious zoning. Topless dancing can, and has been, like pornography, trash dumps, rendering plants, chemical waste disposal and other noxious behavior, controlled by proper zoning restrictions.

      . In that case, a county ordinance which provided that "[i]t shall be unlawful for any owner, operator or person in charge of any commercial establishment to knowingly permit, encourage, induce or in any manner promote the unlawful exposure or exhibit of the sexual organs, genitals, buttocks or breasts of any person ... within the confines of such commercial establishment" was held unconstitutional as being void for vagueness.

      . Art. VIII, § 2(b), Fla. Const.; § 166.021(1), (2), Fla.Stat. (1981).

      . See 4245 Corporation v. Division of Beverage, 371 So.2d 1032 (Fla. 1st DCA 1978).

      . See Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975).

      . See Young v. American Mini Theatres; 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Basiardanes v. City of Galveston, 682 F.2d 1203 (5th Cir.1982).

      . The attorney for the city argued the ordinance barred exposure of "any portion of the breast, left, right side of it_” The trial court agreed with the city’s construction.

      . Cf. Marrs v. State, 413 So.2d 774 (Fla. 1st DCA 1982).

      . See also Retail Credit Co. v. Dade County, 393 F.Supp. 577 (S.D.Fla.1975); Hialeah, Inc. v. Gulf Stream Park Racing Assoc., 428 So.2d 312 (Fla. 4th DCA 1983).

      . Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); State v. Cotney, 104 So.2d 346 (Fla.1958); Foley v. State, 50 So.2d 179 (Fla.1951).