author: HUBBART, Judge. PEARSON, Judge

text:
    Herbert TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1611.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.
    Rehearing Denied March 10, 1978.

      Arthur F. McCormick, South Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   HUBBART, Judge.

This is a criminal prosecution for illegal importation of marijuana before the Dade County Circuit Court. The defendant was convicted as charged upon his nolo contendere plea which was entered with the specific reservation that he could appeal to this court the trial court’s denial of his pre-trial motion to suppress certain evidence. We have jurisdiction to entertain the defendant’s subsequently filed appeal solely as to that issue because it was properly preserved in the trial court and a resolution thereof is dispositive of the case. State v. Ashby, 245 So.2d 225, 228 (Fla.1971); Tiller v. State, 330 So.2d 792, 793 (Fla.1st DCA 1976); Jackson v. State, 294 So.2d 114 (Fla.4th DCA 1974).

The central question presented for review is whether a free and voluntary consent to conduct a warrantless search of a boat may be obtained by a law enforcement officer from the boat’s owner after such officer has begun an admittedly unlawful search of the boat. We hold that, absent a clear and convincing showing of an unequivocal disavowal or break from the prior illegal search sufficient to dissipate the taint of the prior illegality, no such free and voluntary consent can be given as it is tainted by the prior illegal search. As such, any search conducted pursuant to such coerced consent is unreasonable within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12, of the Florida Constitution, and the fruits of such a search are inadmissible in evidence.

I

The controlling facts of this case are substantially undisputed. On February 11, 1976, at approximately 10:30 a. m., Officer Mike Tucker of the Florida Marine Patrol was on duty alone in his patrol boat in the waters off Government Cut in Dade County, Florida. He saw a boat known as “The Old Breed” coming into Government Cut headed west. The defendant Herbert Taylor was standing toward the stern of the boat and it develops he was the owner and captain of the boat. There was at least one other person aboard.

Officer Tucker checked with his superiors by radio and learned that “The Old Breed” was not wanted for any violations of the law. In past years, however, he knew that this boat had been suspected of bringing in undersized lobsters from outside the territorial waters of the United States. He was unaware of the source of this information and the state makes no claim either in the court below or before this court that this gave the officer probable cause to search the boat. He did notice that there was a visible expired commercial registration certificate on the boat and decided to stop the boat for further investigation.

Officer Tucker pulled alongside the defendant’s boat but was unable to converse with the defendant due to the noise of the idling boat engines. The officer thereupon boarded the defendant’s boat and began asking the defendant if there were any fish aboard and where the defendant had been with his boat. The defendant by this time had been joined by a companion aboard the boat and was apparently quite friendly with the officer. He answered all of the officer’s questions while also inquiring himself in a friendly way as to certain other Marine Patrol officers whom he apparently knew.

Officer Tucker’s purpose in boarding the boat and questioning the defendant was, as he testified, to determine if the defendant had any undersized lobsters on the boat. He made no inquiry concerning the expired boat registration. The officer asked what the defendant had in an icebox cooler on deck after the defendant denied having any fish on board. As the officer asked, he opened and looked into the cooler. Nothing incriminating was discovered. The officer then pointed and asked if a certain part of the boat was the fish hold. The defendant replied that it was and the officer then asked: “Can I look inside, I would just like to look inside.” The defendant made no response, but pulled the tarpaulin cover aside and lifted up the hatch because, as he testified, he thought the officer had a right to look therein. The officer at no time advised the defendant that he had a right to refuse the police request to look in the hold or search the boat. The officer looked inside the hold for short lobsters and discovered a large quantity of marijuana which was eventually seized. Weapons were also discovered aboard the boat thereafter. No search warrant was ever obtained in this case.

The defendant was subsequently charged by information with illegal importation and possession of marijuana before the Circuit Court for the Eleventh Judicial Circuit of Florida. Sections 893.13(l)(d), (e), Florida Statutes (1975). The defendant filed a pretrial motion to suppress the marijuana seized from his boat on the ground that it was unlawfully seized without a warrant. The trial court heard testimony which revealed the above facts and denied the motion. The trial court concluded that the defendant had voluntarily consented to the search. Thereupon, the defendant entered his nolo contendere plea as above stated to the charge of illegal importation of marijuana, and the state dismissed the possession of marijuana charge. This appeal follows.

II

The law is well-settled that a search of private property conducted by state or federal agents without a duly issued search warrant is per se “unreasonable” under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12, of the Florida Constitution— subject only to a few specifically established and well-delineated exceptions justified by absolute necessity. These exceptions have been jealously and carefully drawn, and the burden is upon the state to demonstrate their application in a given case which implicit therein requires a showing that the procurement of a search warrant was not feasible because the exigencies of the situation made that course imperative. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed, 153 (1948); Hornblower v. State, 351 So.2d 716 (Fla.1977); Haile v. Gardner, 82 Fla. 355, 91 So. 376, 378 (1921); Britton v. State, 336 So.2d 663 (Fla.1st DCA 1976); Shepard v. State, 319 So.2d 127 (Fla.1st DCA 1975); Hannigan v. State, 307 So.2d 850 (Fla.1st DCA 1975).

“[O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). In particular, the state in Florida must show by “clear and convincing” evidence that the defendant freely and voluntarily consented to the search. Sagonias v. State, 89 So.2d 252, 254 (Fla.1956).

A distinction is recognized in the law between submission to the apparent authority of a law enforcement officer and unqualified consent. Mere acquiescence in a search is not necessarily a waiver of a valid search warrant. Rather for a person to waive his search and seizure rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search. Bailey v. State, 319 So.2d 22, 27 (Fla.1975); Talavera v. State, 186 So.2d 811 (Fla.2d DCA 1966).

In each consent search case, it must be determined from a “totality of the circumstances” as to whether the consent was in fact voluntarily given by the defendant or was the product of duress or coercion, express or implied. Schneckloth v. Bustamonte, 412 U.S. 218, 227-229, 93 S.Ct. 2041, 2047-49, 36 L.Ed.2d 854 (1973); State v. Othen, 300 So.2d 732, 733 (Fla.2d DCA 1974). In this connection, the cases yield no talismanic definition of “voluntariness” mechanistically applicable to a host of situations where the question has arisen because the notion is itself an amphibian. Schneckloth v. Bustamonte, 412 U.S. 218, 224, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973). Nonetheless, some broad trends are discernible in the cases.

One of those broad trends is that any serious illegal actions by a law enforcement officer, such as an illegal arrest, almost always render involuntary any subsequent consent to search given by the victim of the illegal action. Bailey v. State, 319 So.2d 22, 27-28 (Fla.1975); Earman v. State, 265 So.2d 695 (Fla.1972); Urquhart v. State, 211 So.2d 79 (Fla.2d DCA 1968). Indeed, it has long been held that an illegal arrest or an illegal search presumptively-taints and renders involuntary any subsequent confession or admission obtained from the victim of the arrest or search. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Rheiner, 297 So.2d 130 (Fla.2d DCA 1974); State v. Neri, 290 So.2d 500 (Fla.2d DCA 1974); Betancourt v. State, 224 So.2d 378, 381 (Fla.3d DCA 1969); French v. State, 198 So.2d 668 (Fla.3d DCA 1967). The only exception recognized by the cases in which a prior illegal arrest or search would not render a subsequent consent, confession or admission involuntary is where there has been a clear and unequivocal break in the chain of illegality sufficient to dissipate the taint of the prior illegal action. These would certainly be rare cases as our Supreme Court has noted. Bailey v. State, 319 So.2d 22, 27-28 (Fla.1975).

The law is equally clear as to the eviden-tiary consequences attendant upon an unreasonable search and seizure under either the federal or Florida constitution. Any evidence seized by law enforcement agents in violation of the Fourth and Fourteenth Amendments to the United States Constitution or in violation of Article I, Section 12, of the Florida Constitution is inadmissible in evidence. It is sufficient if either one or both of these constitutional provisions have been violated in order to render the seized evidence inadmissible against the victim of the search in a Florida court. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Giidrie v. State, 94 Fla. 134, 113 So. 704 (1927).

Although there has been some suggestion that the Fourth Amendment exclusionary rule should be altered or abolished, Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (Burger, C. J., concurring, White, J. dissenting); Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting), the rule of Mapp v. Ohio, supra, remains intact. In addition, even if the federal exclusionary rule is changed, this in no way affects the fifty year old rule in Florida that evidence seized in violation of Article I, Section 12, of the Florida Constitution is inadmissible in evidence. Gildrie v. State, 94 Fla. 134, 113 So. 704 (1927). “In Florida the exclusionary rule is not merely a judicial construct but is written into the Constitution itself. ‘Articles or information’ obtained unreasonably, within the meaning of Art. I, § 12, ‘shall not be admissible in evidence.’ ” Croteau v. State, 334 So.2d 577, 580-581 (Fla.1976) (Hatchett, J., concurring). As the Supreme Court of Florida in Sing v. Wainwright, 148 So.2d 19, 20 (Fla.1962), has cogently noted:

“Mapp v. Ohio, supra, added nothing whatever to the law of Florida. It created no new procedural right so far as the jurisprudence of this State is concerned. This Court long ago concluded that evidence obtained as the product of an unreasonable search is not admissible in a criminal proceeding. Florida has long recognized the so-called ‘exclusionary rule’ regarding the inadmissibility of such evidence.”

Ill

Turning to the instant case, it is clear that Officer Tucker had the authority to stop the defendant’s boat because it was carrying an expired commercial boat registration in violation of Section 371.051(7), Florida Statutes (1975). Such power, however, did not carry with it the automatic authority for Officer Tucker to conduct a general search of defendant’s boat. Hill v. State, 238 So.2d 608 (Fla.1970). Yet that is exactly what Officer Tucker proceeded to accomplish in this case under the guise of consent.

The officer’s purpose in boarding the boat, as he testified, was to determine if the boat contained undersized lobsters as previously suspected. Upon boarding, he politely, but firmly proceeded to question the defendant with respect thereto without any mention of the expired boat registration. And while doing so, he looked into the icebox cooler on the deck of the boat searching the cooler for undersized lobsters. Officer Tucker correctly admitted to the court that he exceeded his authority in conducting such a search. Almost immediately thereafter, he pointed to the hold in the boat and asked if he could look therein. The defendant acquiesced by opening the hatch without saying a word. Under these circumstances, it is our view that the defendant’s silent consent was tainted by the prior illegal search of the icebox cooler and therefore represents an acquiescence to authority rather than a free and voluntary consent to search. The defendant testified that he thought that the officer had a right to look in the hold, a not unreasonable belief since the officer had just prior thereto asserted his right to search the cooler without a search warrant and without obtaining the defendant’s permission. The fact that the prior illegal search yielded no contraband in no way dissipates the admitted illegality of such search nor its obvious coercive effect on the defendant.

The trial judge based his ruling in part on the fact that the defendant was friendly to Officer Tucker during the boarding and search of the boat, that the defendant had at least one other companion on board, and that there were guns stored elsewhere in the boat. These are certainly relevant considerations in examining the issue of volun-tariness based on the totality of the circumstances. They are, however, insufficient in our view to break the chain of serious illegality set in motion by the officer’s admitted prior illegal search of the icebox cooler. Implicit with that action, Officer Tucker was asserting his right to search hidden areas on the boat without probable cause and without a search warrant, an authority he clearly did not have.

The trial judge was entirely correct in rejecting the defendant’s argument made below that the failure of the officer to advise the defendant that he did not have to consent to the search automatically made the subsequent consent involuntary. It was, however, a factor to be considered in assessing the totality of the circumstances on the issue of voluntariness. Schneckloth v. Bustamonte, 412 U.S. 218, 217, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); State v. Othen, 300 So.2d 732, 733 (Fla.2d DCA 1974); State v. Spanierman, 267 So.2d 102 (Fla.2d DCA 1972); State v. Custer, 251 So.2d 287 (Fla.2d DCA 1971). In the context of this case, such a factor takes on particular significance in view of the illegal search which preceded the defendant’s alleged consent to search. Such an advisement by the officer given prior to the challenged consent might very well have broken the chain of presumptive coercion created by the prior illegal search; conversely, the absence of such a warning lends further credence to our conclusion that the chain of illegality herein was in no way broken.

We are not unmindful of the rule that a trial court’s decision on a motion to suppress the fruits of an unreasonable search and seizure comes to the appellate court with a presumption of correctness, and that in testing the correctness of the trial court’s conclusions, we should interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom in a light most favorable to sustain these conclusions. Rodriquez v. State, 189 So.2d 656, 660 (Fla.3d DCA 1966). Having done this, however, “if a doubt exists as to whether the officer was reasonable in concluding that a search was justified, such a doubt must be resolved in favor of the defendant whose property was searched.” Miller v. State, 137 So.2d 21, 25 (Fla.2d DCA 1962). As applied to a warrantless consent search, the facts as viewed most favorable to the state must establish “by clear and convincing evidence” that the defendant freely and voluntarily consented to the search. Sagonias v. State, 89 So.2d 252, 254 (Fla.1956).

Viewing the evidence in this cause in a light most favorable to the state, we must conclude that Officer Tucker conducted an illegal search of the icebox cooler on the defendant’s boat which in turn presumptively tainted and made involuntary the defendant’s alleged silent consent to search the boat’s hold, which prior illegal search was in no way dissipated by any other intervening factor. At the very least, a serious doubt exists concerning this matter and the state failed to establish by clear and convincing evidence that the defendant freely and voluntarily consented to the search.

Our conclusion herein is further supported by the long standing rule that the Fourth Amendment to the United States Constitution and Article I, Section 12, of the Florida Constitution should receive a liberal construction so as to safeguard our most precious right of privacy. United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877, 882 (1932); Gouled v. United States, 255 U.S. 298, 303-304, 41 S.Ct. 261, 65 L.Ed. 647 (1921); Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 29 L.Ed. 746 (1885); Atz v. Andrews, 84 Fla. 43, 94 So. 329 (1922). The courts must be vigilant to scrutinize the attendant facts in a search and seizure case with an eye to detect and a hand to prevent violations of the Constitution by circuitous and indirect methods. Constitutional provisions for the security of person or property are to be liberally construed and it is the duty of the courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon. The Fourth Amendment was adopted in view of a long misuse of power in the matter of searches and seizures both in England and the colonies; and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, which, regarded superficially may seem to escape the challenge of illegality but which, in reality, strike at the substance of the constitutional right. Byars v. United States, 273 U.S. 28, 32, 47 S.Ct. 248, 249, 71 L.Ed. 520, 523, 524 (1929); Atz v. Andrews, 84 Fla. 43, 94 So. 329 (1922). Although such a liberal construction does not forbid the application of common sense in the detection of crime and the apprehension of criminals or require us to strain our Constitution through a filament of unrealistic exactitude, State v. Nittolo, 317 So.2d 748, 750 (Fla.1975), nonetheless we are compelled in close cases to decide in favor of the individual rights of the citizen as guaranteed by the above constitutional provisions because of the extreme importance of such rights to the maintenance of a free society. See Brinegar v. United States, 338 U.S. 160, 180-82, 69 S.Ct. 1302, 1313-1314, 93 L.Ed. 1879 (1949) (Jackson, J. dissenting); Hornblower v. State, 351 So.2d 716 (Fla.1977).

The trial court, therefore, erred in denying the defendant’s pre-trial motion to suppress the marijuana seized from the defendant’s boat. Under both the federal and Florida constitutions, the marijuana herein was the fruit of an unreasonable search and seizure and was therefore inadmissible in evidence.

The defendant’s conviction herein is reversed and the cause remanded to the trial court with directions to allow the defendant to withdraw his nolo contendere plea and discharge the defendant from the cause.

Reversed and defendant discharged.

PEARSON, Judge

(dissenting).

I would affirm the finding of the trial judge that the appellant consented to the search of the hold which, in turn, revealed the incriminating evidence. Under the complicated statement of facts as set out in the majority opinion, the question of consent was primarily a question for the trial judge and his determination should be accepted on appeal unless clearly erroneous. See Rodriquez v. State, 189 So.2d 656 (Fla.3d DCA 1966).

The essential holding of the majority as I read the opinion is that, under the circumstances of this case, the defendant’s consent was tainted by the prior illegal search of an icebox cooler and the additional holding that the consent represented an acquiescence to authority rather than a free and voluntary consent to the search. With regard to the lifting of the lid of the icebox cooler, it seems entirely immaterial to me in that it did not lead to the discovery of the contraband. This, however, does not appear to be the controlling point upon which the majority based its reversal, -inasmuch as the majority substituted its judgment for that of the trial judge under a finding that the admitted consent was in actuality an “acquiescence to authority.” I simply do not find the circumstances so overwhelming. Cf. the considerations of law in Longo v. State, 157 Fla. 668, 26 So.2d 818, 819-820 (1946).

I would affirm.

      . “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S.Const. amend. IV. “[N]or shall any State deprive any person of life, liberty, or property, without due process of law ...” U.S.Const. amend. XIV § 1

      . “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.” Art. I, § 12, Fla.Const.


source: Caselaw Access Project

author: SMITH, Acting Chief Judge. BOOTH, Judge,

license: Public Domain

text:
    Dale Regis LAUER and Harry Baker Friedman, Appellants, v. Patricia D. WILSON and Karen F. Albert et al., Appellees.
    No. GG-428.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1978.
    Rehearing Denied March 8, 1978.
    Robert C. Parker, Jr., Tallahassee, for appellants.
    Everett P. Anderson of Pennington, Wilkinson & Sauls, Tallahassee, for appellees.
   SMITH, Acting Chief Judge.

By summary judgment the trial court discharged the appellee wives as parties defendant to appellants’ action on the covenants of appellees and their husbands as grantors of a statutory warranty deed given December 23, 1973, three months after the inchoate right of dower in married women was abolished. Chapter 73-107, Laws of Florida. The trial court’s decision was predicated on unstated findings that the appellee wives executed the deed only to release any dower rights that may previously have vested. Reserving the question of whether the wives’ covenants may be reformed or rescinded for a unilateral mistake not amounting to a breach of legal duty, and for which the appellants should not profit, Crosby v. Andrews, 61 Fla. 554, 55 So. 57 (1911); Wicker v. Board of Pub. Instr. of Dade County, 106 So.2d 550 (Fla.1958), or for other reasons, we must agree with appellants that the record contains no evidence establishing that the wives were requested to join in the deed only to release any possibly vested dower rights. The record therefore does not dispel all factual issues concerning an essential element of appellees’ defense. The summary judgment is

REVERSED.

ERVIN, J., concurs.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting:

There is no issue of material fact here. The sole question is one of law, to wit: Are the wives liable to the immediate grantees on covenants in a deed to husbands’ property which the wives executed gratuitously at the request of the husbands’ attorney.

The wives had no title to the property, and there was no misrepresentation as to that fact. All parties knew the wives had no title, as evidenced by the wives not being party to either the contract for sale, the promissory note, the purchase money mortgage or to the collateral agreement. The last three instruments were executed the same day as the deed. There was no evidence of an independent contract of warranty between the wives and the grantees. The sole purpose alleged for the wives’ execution of the deed was relinquishment of dower.

Under these facts, the able trial judge correctly entered summary judgment in favor of the wives. As between the immediate parties to the transaction, and in the absence of misrepresentation, the wives’ gratuitous execution of a warranty deed to their husbands’ property does not create an independent obligation on the part of the wives, or render them liable oh covenants of warranty.

I would affirm the judgment below.


author: SMITH, Judge. BOYER, Judge,

text:
    James Earl WILDER, Appellant, v. STATE of Florida, Appellee.
    No. GG-248.
    District Court of Appeal of Florida, First District.
    Feb. 17, 1978.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Wilder appeals from a circuit court judgment that he is guilty of larceny. He complains of the trial court’s overruling his counsel’s objection to an argument by the prosecutor in closing before the jury, and of the trial court’s denial of a new trial on that ground.

The primary issue tried to the jury was whether Wilder was one of the persons observed by the witness Nelson stealing plywood from a construction site. Defense counsel’s cross-examination of Nelson attempted to lay the groundwork for impeachment of his identification testimony by evidence of a prior inconsistent description Nelson may have given to deputy Colli-son. Defense counsel did not call Collison as an impeachment witness, but argued to the jury in closing that the jury should consider as a weakness in the state’s case its failure to call deputy Collison to corroborate Nelson’s testimony. In closing the prosecutor replied:

Deputy Ted Collison was standing right out in the hallway the whole time, and he [defense counsel] didn’t choose to call him to tell you any outstanding evidence that I didn’t present to you. I didn’t call him because it would have just been the same evidence that you already heard, and I didn’t see any need to stay here tomorrow listening to Ted Collison say, “Yes, I came up,” and “Yes, Mr. Nelson told me they were the same two men,” and “Yes, I saw the crease in the tag,” and “Yes, that’s the description . . . .”

The state must of course have an opportunity to reply when defense counsel argues the insufficiency or lack of evidence. Defense counsel’s argument in this case may well have prompted a state reply that Collison’s evidence could not have been received over objection if offered in the state’s case in chief, Trainer v. State, 346 So.2d 1081 (Fla. 1st DCA 1977), cert. denied, 352 So.2d 175 (Fla.1977), that the witness was as available to the defense as to the state, and that Nelson’s identification testimony was not impeached. However, the alternatives available to the state did not include power to recite to the jury testimony the missing witness would have given if called. Objection to the argument was promptly made and was overruled. That was error; and, because the identification question was the principal issue tried, it was prejudicial. A new trial is necessary. Bradham v. State, 41 Fla. 541, 26 So. 730 (1899); Clinton v. State, 53 Fla. 98, 43 So. 312 (1907); Richardson v. State, 335 So.2d 835 (Fla. 4th DCA 1976).

REVERSED.

McCORD, C. J., concurs.

BOYER, J., dissents.

BOYER, Judge,

dissenting:

Appellant, defendant in the trial court, was tried for grand larceny. The jury returned a verdict of guilty and the trial court denied a motion for new trial. This appeal followed.

Appellant urges that the trial court erred in overruling his objection to a statement made by the prosecutor in closing argument in response to a statement made by defense counsel. In my view there was no error.

As stated by our sister court of the Second District in Tribue v. State, 106 So.2d 630 (Fla.App. 2nd 1958):

“It is the duty of a trial judge carefully and zealously to protect an accused, so that he shall receive a fair and impartial trial, from improper or harmful statements or conduct by a witness or by a prosecuting attorney during the course of a trial. Also, it is the duty of a prosecuting attorney in a trial to refrain from making improper remarks or committing acts that would or might tend to affect the fairness and impartiality to which the accused is entitled. Sometimes in his zeal during the progress of a case, or in the heat engendered by a stoutly contested controversy, a prosecuting attorney or defense counsel may propound a question or make a remark that would introduce objectionable matter when ordinarily this would not happen. The statements about which appellant is aggrieved came about apparently in a hotly contested trial; they were in response to and were prompted by specific questions asked and statements made by counsel for the defense. Although the statements under criticism may be judged as disparaging and improper, the appellant, under the circumstances of this case, cannot as a consequence obtain benefit from that which his own counsel prompted or provoked and thereby be favored with a reversal of the judgment. See Williams v. State, Fla.1953, 69 So.2d 766, and Henderson v. State, 1927, 94 Fla. 318, 113 So. 689. The trial court did not commit reversible error under this proposition.” (106 So.2d 633)

It is clear sub judice that the statements attributed to the prosecutor were in response to defense counsel’s closing argument. Even if they were objectionable (which I do not so find), they were fair comment and reply to the defense statements. A defendant may not have the benefit of statements of his own counsel which elicit or provoke response and yet object to the response. (See Hicks v. State, 242 So.2d 763 (Fla. 3rd DCA 1971)).


author: DANAHY, Judge.

text:
    Arthur STEELE, Appellant, v. Elizabeth M. LANNON, Appellee.
    No. 77-764.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 1978.
    As Modified March 3, 1978.
    R. Thomas Corbin, of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, Fort Myers, for appellant.

      James L. Goetz, of Roberts, Watson, Bright & Adams, Fort Myers, for appellee.
   DANAHY, Judge.

After a falling-out with his companion, Elizabeth Lannon, Arthur Steele sued her to impose a resulting or constructive trust on a condominium unit which he bought with his funds and, at her suggestion, had placed in her name. Summary judgment was granted in favor of Elizabeth Lannon. We reverse.

Because the case is here on summary judgment, we must read the record in a light most favorable to Steele. In his original verified complaint, Steele made the following allegations:

“3. . . .
(a) . . .
(b) For some time plaintiff was aware that the business was in financial difficulty and became fearful that his personal assets would be in jeopardy with the creditors of said hotel business.
(c) Prior to January 20, 1976, the plaintiff decided to purchase a condominium in Lee County, Florida, and with the consent of his companion and trusted friend, namely, the defendant, to place title in the defendant’s name alone so as to place the asset out of the reach of his creditors.”

Lannon’s motion to dismiss was granted. Thereupon, Steele filed an amended complaint which omitted the above allegations and detailed his relationship with Lannon and the condominium purchase as we summarize here.

Steele was separated from his wife and was operating a hotel in Jacksonville when he left that business in November 1973 due to financial problems in the business. Two months later, he went to Ohio to reconcile with his wife, but he was unsuccessful and was hospitalized with a nervous breakdown, after which his wife divorced him there. While he was under great emotional stress during the separation from his wife, Lan-non encouraged him to divorce his wife, became his trusted confidante, and otherwise consoled, comforted and counseled him. After the divorce and while he continued in a depressed mental condition, she continued to apply pressure on him and urged him to buy a home and place title in her name. She promised that if he did so, she would thereafter live with him as a companion, provide a home for him and take care of him.

On January 20,1976, intending no gift to Lannon, he purchased the condominium unit with his own funds and had title placed in her name. They moved in and shortly thereafter their friendship ended and she ordered him to leave. She then refused to reconvey the property even though, prior to the purchase, she promised to do so at any time upon his request.

In her answer to the amended complaint, Lannon denied all and raised the single affirmative defense of gift. Steele replied, denying he gave her the condominium. Lannon moved for summary judgment and argued at the hearing that, because the original complaint alleged the transfer to her was in fraud of creditors, Steele was barred from the equitable relief he sought here. Because this is so, argued Lannon, there could be no genuine issue of any material fact in the case. Although fraudulent conveyance was not raised as an affirmative defense in Lannon’s answer, the trial judge agreed.

Two questions immediately come to mind; whether allegations of an original complaint superseded by an amended complaint can properly be considered as admissions for purposes of summary judgment, and whether a defense not raised in a defendant’s answer can -properly be considered on defendant’s motion for summary judgment. We need not reach these questions, however, because even if they were to be answered affirmatively, the allegations in Steele’s original complaint do not rise to the level of admitting a fraudulent conveyance foreclosing him from relief in equity.

It is well settled that when one purchases property and causes the title to be taken by another for the purpose of thwarting his creditors, a court of equity will not aid him in extricating himself from the situation he has created. In such circumstances he becomes a victim of his own fraudulent devices and cannot enter a chancery court with clean hands. Scott v. Sites, 41 So.2d 444 (Fla.1949). It is, therefore, necessary to consider the elements of a fraudulent conveyance.

In Cleveland Trust Company v. Foster, 93 So.2d 112 (Fla.1957), our Supreme Court noted the commonly recognized indicia of fraud as follows: “The facts which are recognized indicia of fraud are numerous, the most important being the insolvency or indebtedness of the transferor, lack of consideration for the conveyance, retention by the debtor of possession of the property, the relationship between the transferor and transferee, the reservation of benefit to the transferor, the pendency or threat of litigation, secrecy or concealment, and the transfer of the debtor’s entire estate.”

In the case at bar, assuming the truth of the allegations of Steele’s first complaint (and that the trial judge properly had the complaint before him at the summary judgment hearing), the fact that Steele was in “financial difficulty” and “fearful that his personal assets would be in jeopardy” does not indicate the “insolvency or indebtedness” of Steele. Green v. Casper, 346 So.2d 1204 (Fla. 3d DCA 1977).

There is left, then, the bare assertion by Steele that his purpose in making the conveyance to Lannon was “so as to place the asset out of the reach of his creditors.” Should Steele, under the circumstances of this case, be bound by that allegation to the extent of being barred from his day in court by summary judgment? We think not.

In Sponholtz v. Sponholtz, 190 So.2d 572 (Fla.1966), the Supreme Court said that “even if plaintiff’s allegations standing alone might have estopped and barred him from denying intent to defraud his creditors, the denial thereof by defendant and the proofs negate the view plaintiff is bound by his admissions in this case.” In Sponholtz, plaintiff alleged that the transfer in question had been made to “protect the assets of the business” against a judgment creditor. The Supreme Court pointed out that “there was no showing in the evidence the judgment creditor was in anywise delayed or frustrated in the settlement of his judgment.” The court further explained that the proofs revealed the transaction by plaintiff was one normal in business operations rather than one having an intent to defraud the creditor. As the Supreme Court noted in Sponholtz, the decision of Bay View Estates Corporation v. Southerland, 114 Fla. 635, 154 So. 894 (1934) succinctly states the point:

“Even if the debtor intends to deceive the public, if his act in transferring his property does not hinder or delay his creditors, no legal fraud exists ... To constitute a fraudulent conveyance, there must be a creditor to be defrauded, a debtor intending fraud, and a conveyance of property which is applicable by law to the payment of the debt due.”

Steele may have been a debtor intending fraud, but there is nothing in this record which admits to a fraudulent transfer. His bad motive may not be in doubt, but whether there were any hindered creditors or indebtedness or other indicia of actual fraud, facts which Lannon might be able to prove at trial, a motive to defraud is not the equivalent of fraud.

We hold, therefore, that there were genuine issues of material fact which precluded the entry of summary judgment in favor of Lannon. At trial the defense of fraudulent conveyance (when properly framed) will be at issue, as is the defense that the conveyance was a gift.

Reversed and remanded for further proceedings not inconsistent with this opinion.

SCHEB, Acting C. J., and RYDER, J., concur.

      . It is generally true that where an amended complaint (as opposed to an amendment to the complaint) is filed and does not refer to or in any way adopt the original complaint, the latter supersedes the former and the former ceases to be a part of the record. E. g., Dee v. Southern Brewing Co., 146 Fla. 588, 1 So.2d 562 (1941).

      . Fla.R.Civ.P. 1.110(d) requires that any matter constituting an avoidance or affirmative defense must be affirmatively set forth in pleading to a preceding pleading.


author: PER CURIAM.

text:
    Robert KOVSCHAK, Appellant, v. STATE of Florida, Appellee.
    No. GG-171.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1978.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant was adjudicated guilty of the offense of grand larceny, Section 812.-021(l)(a), Florida Statutes (1975), and sentenced to five years imprisonment. After having served 31 days of this term, Appellant was to be placed on probation for a period of five years.

Inasmuch as the maximum sentence which could be imposed for this offense was five years, pursuant to Sections 812.021(2) and 775.082, Florida Statutes (1975), the combined terms of imprisonment and probation imposed exceeds .the statutory maximum by 31 days. Accordingly, the Appellant’s sentence is modified to reduce the period of probation by 31 days. Green v. State, 354 So.2d 135 (Fla. 1st DCA 1978).

We have examined the briefs and the record and have found no other error.

Therefore the judgment is affirmed and the sentence is affirmed as modified.

McCORD, Chief Judge, BOYER and SMITH, JJ., concur.


text:
    Billy Joe WEDENFELLER, Appellant, v. STATE of Florida, Appellee.
    No. GG-411.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1978.
    Billy Joe Wedenfeller, in pro. per.
    No appearance for appellee.
   PER CURIAM.

Appellant appeals the denial of his motion to vacate pursuant to Fla.R.Crim.P. 3.850, urging that the evidence presented at trial was insufficient to establish the offense of breaking and entering a building with the intent to commit grand larceny, contrary to Section 810.02, Florida Statutes (1973).

Appellant was provided a direct appeal to this Court. Wedenfeller v. State, 323 So.2d 717 (Fla. 1st DCA 1975). Since the present matter could have been raised on direct appeal, this issue is not properly raised in a, motion to vacate the judgment and sentence. Stallings v. State, 319 So.2d 640 (Fla. 1st DCA 1975); Ashley v. State, 350 So.2d 839 (Fla. 1st DCA 1977).

The order appealed is AFFIRMED.

McCORD, C. J., and BOYER and SMITH, JJ., concur.


text:
    STATE of Florida, Appellant, v. Betty Jean ADAMS, Appellee.
    No. 11-172.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1978.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellant.
    Lacy Mahon, Jr., of Mahon, Farley & Vickers, Jacksonville, for appellee.
   PER CURIAM.

The trial court held that an affidavit was insufficient on its face to establish probable cause for issuance of a warrant for search of a dwelling. The State appeals.

The affidavit recites:

Your affiant has been a member of the Jacksonville Sheriff’s Office for two (2) years. A confidential informant within the past twenty-four (24) hours told your affiant that within the past twenty-four (24) hours the informant had been inside the above-described residence. While inside the residence, the informant admits that he (informant) purchased a quantity of what was represented by the occupant to be Marijuana. After purchasing the substance, the informant brought it to your affiant who identified the substance as Cannabis, commonly known as Marijuana.
The informant can readily identify Marijuana. Your affiant has had police training and experience identifying Cannabis, commonly known as Marijuana.
Said informant further related at said time that there is an additional quantity of Cannabis, commonly known as Marijuana, in the above-described residence. Your affiant believes said informant because the said admission by said informant constituted an admission against penal interest.

The affidavit is insufficient in that it fails to recite sufficient underlying circumstances from which the magistrate could independently determine that the hearsay information was reliable and that the informant was credible. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Specifically, the affidavit fails to recite facts to establish the credibility of the informant. Davis v. State, 346 So.2d 141 (Fla. 1st DCA 1977).

A statement against an informant’s penal interest may contribute to his reliability. Davis v. State, supra; State v. Patterson, 309 So.2d 555 (Fla. 2d DCA 1975); State v. Henderson, 318 So.2d 524 (Fla. 2d DCA 1975); State v. Jacobs, 320 So.2d 45 (Fla. 2d DCA 1975). However, the facts recited in this affidavit did not establish an admission against the penal interests of the informant. We do not believe that such a statement made by a “confidential informant” would constitute an admission against his penal interest or that such admission would carry its own indicia of reliability.

Therefore, the order granting the motion to suppress is AFFIRMED.

McCORD, C. J., and BOYER and SMITH, JJ., concur.


author: HENDRY, Judge.

text:
    PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, a Foreign Corporation authorized to do insurance business in the State of Florida, Arthur Hirschberg, and Firemen’s Fund Insurance Company, a Foreign Corporation authorized to do insurance business in the State of Florida, Appellants, v. Robert LEBO, Appellee.
    Nos. 76-2088, 76-2089.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.

      Shutts & Bowen and Brenton Ver Ploeg, Corlett, Merritt, Killian & Sikes, Greene & Cooper, Miami, for appellants.
    Tobin & Fisch and Donald E. Krentsa, Miami, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and KEHOE, JJ.
   HENDRY, Judge.

Appellants, defendants below, bring this consolidated appeal from an order vacating a judgment of dismissal, rendered pursuant to Fla.R.Civ.P. 1.540(b).

There is but one issue on appeal, to-wit: whether the trial court abused its discretion in allowing a substitution of party plaintiff more than 90 days after the filing of a “suggestion of death.” We hold that no abuse of discretion has been shown, and affirm.

Fla.R.Civ.P. 1.260(a)(1) provides that:

“If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in Rule 1.080 and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.”

The above statute has been interpreted liberally to allow substitution of a party after 90 days of the suggestion of death upon a showing of excusable neglect, inadvertence, mistake, etc. pursuant to Fla.R.Civ.P. 1.540(b)(1), Relief from Judgment, Decrees or Orders. King v. Tyree’s of Tampa, Inc., 315 So.2d 538 (Fla. 2d DCA 1975); and pursuant to Fla.R.Civ.P. 1.090(b), Time. New Hampshire Insurance Company v. Kimbrell, 343 So.2d 107 (Fla. 1st DCA 1977). The trial judge, after a hearing, vacated his judgment of dismissal pursuant to Fla.R. Civ.P. 1.540(b), and in so doing, the record does not reflect an abuse of his discretion.

Accordingly, the order appealed from is affirmed and the cause remanded for further proceedings.

Affirmed.


text:
    Alexander DAVIS, Appellant, v. Rosa Lee DAVIS, Appellee.
    No. 76-2248.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.

      George E. Barket, Richard M. Gale, Miami, for appellant.
    Edward C. Vining, Jr. and Richard A. Burt, Jack H. Eakle, Miami, for appellee.
    Before HAVERFIELD, C. J„ and HEN-DRY and KEHOE, JJ.
   HENDRY, Judge.

Appellant/respondent/husband challenges the correctness of a final judgment which dissolved his marriage to appel-lee/petitioner/wife and determined the ownership of certain real and personal property held by the parties in their joint names.

After carefully reviewing the record and briefs, in light of the controlling principles of law, it is our opinion that (1) the chancellor was authorized to determine the equities of the spouses in the property by virtue of both the prayers found in the petition and counter-petition for dissolution of marriage and the fact that no objection to such proceeding was voiced at trial; and (2) that there was competent evidence to support the chancellor’s ruling that, by virtue of the fact that the wife had purchased the property solely from her own funds prior to 1968, she was entitled to be vested with ownership of said property on either a special equity or resulting trust theory. Hendricks v. Hendricks, 312 So.2d 792 (Fla.3d DCA 1975); Walton v. Walton, 290 So.2d 110 (Fla.3d DCA 1974); Ball v. Bali, 303 So.2d 32 (Fla.2d DCA 1974). See also McKenry v. McKenry, 336 So.2d 20 (Fla.3d DCA 1976); Robinson v. Robinson, 340 So.2d 935 (Fla.4th DCA 1976); Ezell v. Ezell, 320 So.2d 427 (Fla.3d DCA 1975); Olsen v. Olsen, 195 So.2d 864 (Fla.3d DCA 1967).

Accordingly, the final judgment appealed from is hereby affirmed.

Affirmed.


text:
    Carlos PRUNA, Appellant, v. The TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND, etc., Appellee.
    No. 76-2373.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Guillermo F. Mascaro, Coral Gables, and Michael F. Mazquiaran, Miami, for appellant.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See Griffin v. Stonewall Insurance Co., 346 So.2d 97 (Fla. 3d DCA 1977); Section 627.736(7)(a), Florida Statutes (1975).


text:
    Frankie JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 77-50.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

On this appeal by Frankie Jones from a judgment of conviction following a jury trial on drug related charges, and sentence thereon, the sole point raised is that the trial court erred in failing to grant a mistrial based on alleged improper remarks made by the prosecutor during closing argument. From our review of the record in this case, no error is shown as statements made by defense counsel in opening and closing arguments invited the prosecutor’s comments. See Whitney v. State, 132 So.2d 599 (Fla.1961); Ricks v. State, 242 So.2d 763 (Fla. 3d DCA 1971); Francis v. State, 343 So.2d 932 (Fla. 3d DCA 1977).

Affirmed.


text:
    Robert HODGE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-300.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.

      Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and KEHOE, JJ.
   PER CURIAM.

Appellant was charged with first degree murder. He was tried and found guilty by a jury of murder in the second degree. By this appeal appellant seeks reversal of his conviction and sentence.

Appellant’s point on appeal presents the question of whether it was reversible error for the trial court to deny appellant’s motion for mistrial based on alleged prejudicial remarks made by the prosecuting attorney both during his opening statement to the jury and in his closing argument.

The grounds relied upon for reversal have been considered in the light of the record on appeal, briefs and arguments of counsel. We conclude that no reversible error has been made to appear.

The record discloses that the case was fairly tried: that the remarks complained of were not, under the circumstances, such as would constitute prejudicial error; that the verdict is supported by the evidence; and that the rulings of the trial court challenged by appellant did not, on the record and under the law, constitute harmful error. State v. Jones, 204 So.2d 515 (Fla.1967); Morgan v. State, 303 So.2d 393 (Fla. 2d DCA 1974); Barrett v. State, 266 So.2d 373 (Fla. 4th DCA 1972); Reis v. State, 248 So.2d 666 (Fla. 3d DCA 1971); Robinson v. State, 145 So.2d 561 (Fla. 3d DCA 1962).

Accordingly, the judgment and sentence are affirmed.

Affirmed.


text:
    D. J., a juvenile v. The STATE of Florida, Appellee.
    No. 77-650.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal from an order adjudicating D. J., a juvenile, delinquent on a charge of petit larceny, and placing him under the supervision of the Florida Division of Youth Services. The sole point on appeal is the sufficiency of the evidence. After a careful review of the record in the light of the argument and briefs of counsel, we find that there was competent substantial evidence to support the trial judge’s conclusions, and to support the adjudication of delinquency. Crum v. State, 172 So.2d 24 (Fla.3d DCA 1965); Starling v. State, 263 So.2d 645 (Fla.3d DCA 1972); H. D. v. State, 348 So.2d 1159 (Fla.3d DCA 1976).

Affirmed.


text:
    Michael Leonard JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1165.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    John H. Lipinski, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The defendant was found guilty of involuntary sexual battery by a jury and was sentenced to one year in the Dade County stockade. On this appeal from the judgment, he has presented five points, four of which are as follows: (1) The evidence was not sufficient to show lack of consent to the intercourse. (2) A new trial should be granted because of comments by the prosecuting attorney in closing argument. (3) The court erred in allowing the introduction into evidence of a pretrial statement of the codefendant. (4) The court erred in admitting into evidence a pretrial statement of this defendant. The fifth point is of sufficient importance that it should be set out in its entirety:

“Whether the State committed reversible error in offering into evidence testimony that the defendant’s brother offered the victim’s boyfriend money to testify for the defense.” [Emphasis added]

The first four points do not present reversible error. The evidence was conflicting but sufficient to prove lack of consent depending upon which of the witnesses told the truth. The comments here objected to were in the main, not objected to in the trial, and in no instance were the comments so objectionable to require a new trial. The pretrial statements were properly admitted where there was no motion to sever the trial of the two defendants and the statements were voluntary.

The admission, over objection, of a witness’s testimony that someone other than the defendant, or someone not shown to be acting with defendant’s knowledge, offered that witness $200.00 to testify falsely for the defendant is grounds for the granting of a mistrial, and the denial thereof would be reversible error. Coleman v. State, 335 So.2d 364 (Fla. 4th DCA 1976). No error appears in this case because the action complained of (the offering of evidence) was not an action of the court. No objection nor motion for mistrial appears in the record. Our review of the circumstances of the offer convinces us that the defendant was not deprived of a fair trial. Therefore, no fundamental error appears.

Affirmed.


text:
    Henry Lavert NICHOLSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1207.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz and Jose R. Rodriguez, Asst. Attys. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Singletary v. State, 290 So.2d 116 (Fla. 4th DCA 1974); Randolph v. State, 292 So.2d 374 (Fla. 3d DCA 1974).


text:
    ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Appellant, v. Antonio CALVES and Ondina Calves, Individually and as husband and wife and Caridad Calves, a single woman, Appellees.
    No. 77-1773.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.

      Weinstein & Bavly and Arthur J. Mor-burger, Miami, for appellant.
    Wolfson, Appel & Maram and Anthony J. Brown, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Reversed and remanded with directions to dismiss the action herein for lack of prosecution under Fla.R.Civ.P. 1.420(e) based on the following authorities: Bake-well v. Shepard, 310 So.2d 765 (Fla.2d DCA 1975); Castle v. Struhl, 293 So.2d 798 (Fla.3d DCA 1974); Wells v. Van Arnam, 271 So.2d 186 (Fla.lst DCA 1973).


text:
    Willie WALKER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1907.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Bennett H. Brummer, Public Defender and Kurt Mamar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. Foley v. Revlon, Inc., 200 So.2d 627, 629-30 (Fla. 3d DCA 1967); Mizell v. New Kingsley Beach, Inc., 122 So.2d 225, 226-27 (Fla. 1st DCA 1960).


author: HUBBART, Judge.

text:
    STATE of Florida ex rel. Richard Victor SMITH, Relator, v. The Honorable Lenore C. NESBITT, as Judge of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Respondent.
    No. 77-2485.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for relator.
    Janet Reno, State’s Atty. and Nancy Wear Johnston, Asst. State Atty., for respondent.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is an original suggestion for a writ of prohibition challenging the jurisdiction of a judge of the Dade County Circuit Court to try a criminal case on the alleged ground that the defendant’s right to a speedy trial has been denied under Fla.R. Crim.P. 3.191. We have jurisdiction to entertain the suggestion. Dickoff v. Dewell, 152 Fla. 240, 9 So.2d 804 (1942); Woodward v. Petteway, 128 Fla. 892, 168 So. 806 (1935); Sibert v. Hare, 276 So.2d 523 (Fla. 4th DCA 1973); Article V, Section 4(b)(3), Florida Constitution. We have therefore issued a rule to show cause why the writ should not be granted, received a return from the respondent trial judge pursuant thereto, and held a full hearing on the matter.

The controlling issue presented for review is whether a criminal defendant arrested and later charged by information with certain offenses is unavailable for trial sufficient to toll the speedy trial limits under Fla.R.Crim.P. 3.191 if he does not appear in court pursuant to written notice to answer such charges. We hold that such non-appearance in court constitutes evidence of non-availability for trial which, if not properly rebutted, is sufficient to toll the speedy trial limits under Fla.R.Crim.P. 3.191, providing the defendant is in custody or on bail or personal recognizance before the court where the charges are pending. On the other hand, if the defendant is not in custody or on bail or personal recognizance before the court where the charges are pending, his non-appearance in such court pursuant to written notice constitutes no evidence of nonavailability for trial sufficient to toll the speedy trial limits under Fla.R.Crim.P. 3.191. We conclude the defendant’s right to a speedy trial herein has been denied and grant the suggestion for a writ of prohibition.

The facts of the case are undisputed. On December 1, 1976, the relator Richard Victor Smith was arrested by an officer of the Dade County Public Safety Department and charged with certain felony offenses, to wit: battery upon a police officer, resisting a police officer with violence, and a misdemeanor offense of disorderly conduct. He was subsequently released on bail from the Dade County Jail.

On December 12, 1976, a committing magistrate held a preliminary hearing on the above charges and the defendant was thereafter bound over for trial before the County Court of Dade County on the reduced misdemeanor charges of simple battery, resisting a police officer without violence, and the original misdemeanor charge of disorderly conduct. The defendant was allowed to remain on bail by the committing magistrate on such charges.

On December 28, 1976, the state filed a direct information against the defendant before the Circuit Court for the Eleventh Judicial Circuit of Florida re-instating the original felony charges upon which the arrest was made and which the committing magistrate had reduced, as well as the original disorderly conduct charge. A written notice of the arraignment before the circuit court on such charges was mailed to the relator’s last known address.

On January 14, 1977, the relator did not appear in circuit court for arraignment and an alias capias was issued for his arrest. On August 12, 1977, the relator was served with a capias and arrested. On September 21, 1977, the relator filed a motion for discharge under the speedy trial rule as he had not to that date been brought to trial. The respondent circuit court judge Lenore C. Nesbitt denied the motion. This suggestion for a writ of prohibition follows.

The law is clear that if a defendant in a criminal case is not brought to trial within 180 days after being taken into custody on a felony charge or 90 days after being taken into custody on a misdemeanor charge and is continuously available for trial during such time period, he must be finally discharged from the cause under Fla.R.Crim.P. 3.191(a)(1). Allen v. State, 275 So.2d 238 (Fla.1973); Deloach v. State, 338 So.2d 1141 (Fla. 1st DCA 1976); State v. Jones, 332 So.2d 699 (Fla. 1st DCA 1976); Ramos v. Amidon, 263 So.2d 602 (Fla. 2d DCA 1972). The only exception to this rule is where the speedy trial limits have been waived or extended by court order under certain limited circumstances not applicable here. Fla.R.Crim.P. 3.191(d)(2), (f). See State v. Felton, 348 So.2d 1214 (Fla. 4th DCA 1977); State ex rel. Smith v. Rudd, 347 So.2d 813 (Fla. 1st DCA 1977); State ex rel. Canup v. Langston, 341 So.2d 1069 (Fla. 2d DCA 1977); State v. Wolfe, 271 So.2d 203 (Fla. 4th DCA 1972); State v. Earnest, 265 So.2d 397 (Fla. 1st DCA 1972).

There is no presumption that a defendant is unavailable for trial within the meaning of Fla.R.Crim.P. 8.191. If the state seeks to rely on this ground to defeat a motion for discharge under such rule, it has the burden of going forward with evidence tending to show that the defendant was not available for trial during some or all of the applicable speedy trial period. Upon making such a showing, the burden of proof rests on defendant to establish his continuous availability for trial during the entire applicable speedy trial period. State ex rel. Kennedy v. McCauley, 265 So.2d 547 (Fla. 4th DCA 1972); Fla.R.Crim.P. 3.191(e).

Ordinarily, a defendant who is on bail or personal recognizance and who fails to appear in court pursuant to proper notice is unavailable for trial within the meaning of Fla.R.Crim.P. 3.191. State v. Expósito, 327 So.2d 836 (Fla. 3d DCA 1976); Dara v. State, 278 So.2d 334 (Fla. 3d DCA 1973). This rule, however, is inapplicable where the defendant is not in custody or on bail or personal recognizance before the court in which he fails to appear pursuant to written notice. Such non-appearance does not constitute evidence of non-availability for trial. State ex rel. Barber v. Satin, 296 So.2d 636 (Fla. 3d DCA 1974).

In the instant case, there is no dispute that more than 180 days have elapsed between the date of the relator’s arrest herein and the date the relator filed his motion for discharge in the trial court. The defendant has not been brought to trial during this period of time, no order has been sought or obtained extending the speedy trial limits, and the defendant has not waived his speedy trial rights.

The sole issue in controversy is whether the defendant has been continuously available for trial during the above speedy trial time periods. The defendant was on bail after the committing magistrate hearing solely on misdemeanor charges before the County Court of Dade County. He was under no obligation by the terms of his bail or by order of the committing magistrate to appear pursuant to notice in any court other than the County Court of Dade County on the misdemeanor charges on which the committing magistrate bound the relator over for trial.

The state apparently was dissatisfied with the committing magistrate’s decision and declined to pursue the reduced misdemeanor charges herein in county court. While the state had a right to make such a decision and file a direct information before the Circuit Court for the Eleventh Judicial Circuit of Florida reinstating the original felony charges, it ran certain speedy trial risks. The relator was not in custody or on bail or personal recognizance on such charges before the circuit court. Therefore, his non-appearance in circuit court after written notice was no evidence of his non-availability for trial within the meaning of the speedy trial rule.

The state counters that it was only fair to give the defendant written notice to appear before having a capias issued for his arrest and that it should not thereby be penalized for following such a procedure. We agree. Although Fla.R.Crim.P. 3.130(k) requires the issuance of a capias with the filing of an information where the defendant is not in custody or at large on bail for the offense charged, we see no legal objection to the written notice procedure followed by the delayed issuance of a capias where the defendant fails to appear. What is critical, however, is that the defendant either through written notice or capias must be physically brought before the court and tried within the speedy trial periods. Bail or recognizance terms must also be set which may mean the continuation of prior bail or release terms. But neither the simultaneous issuance of a capias with the filing of the information nor the issuance of a written notice followed by a capias as employed in this case tolls the speedy trial periods where the defendant is not in custody or on bail or personal recognizance before the court where the charges are pending. Such are the speedy trial risks which the state runs whenever it disregards a committing magistrate’s bind over decision and files charges in a different court than that which the magistrate has bound the case over for trial, particularly as to a defendant who is not in physical custody.

It is clear that no speedy trial problem would have arisen if the state had chosen to abide by the committing magistrate’s bind over decision herein and pursued the case in county court. The defendant’s non-appearance in court pursuant to notice in county court would have tolled the speedy trial time limits because the defendant was on bail on those charges before the county court and would have been obligated to appear pursuant to notice. The defendant’s non-appearance in county court pursuant to notice would also have been sufficient to estreat his bail. Not so his non-appearance in circuit court. His bail bond could not have been estreated by the circuit court, and, as such, neither could the speedy trial limits be tolled.

The state relies on Montalvo v. State, 323 So.2d 674 (Fla. 3d DCA 1975). We find this case to be inapplicable to the instant case because there the defendant failed to provide a complete record upon which this court could squarely reach a decision on the speedy trial issue there presented. In the instant case, a full record has been presented and we must meet the issue presented on the merits.

We conclude that the relator was entitled to have been discharged under the speedy trial rule and the suggestion for writ of prohibition is granted. In view of this opinion, however, we assume that the issuance of a formal writ is unnecessary and that the trial court respondent will discharge the relator from the cause.

      . “Except as otherwise provided by this Rule, every person charged with a crime by indictment or information shall without demand be brought to trial within 90 days if the crime charged be a misdemeanor, or within 180 days if the crime charged be a felony, capital or noncapital, and if not brought to trial within such time shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime; provided, the court before granting such motion shall ascertain that such person has been continuously available for trial during such period of time for trial. The time periods established by this section shall commence when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.”

      . “The trial of an accused who is not available shall be held in abeyance while such person is unavailable. A person who has not been continuously available for trial during the term provided for herein is not entitled to be discharged; no presumption of non-availability attaches, but if the State objects to discharge and presents any evidence tending to show nonavailability, the accused then must by competent proof establish continuous availability during the term.”

      . “Upon the filing of either an indictment or information charging the commission of a crime, if the person named therein is not in custody or at large on bail for the offense charged the judge shall issue or shall direct the clerk to issue, either immediately, or when so directed by the prosecuting attorney, a capias for the arrest of such person.”


author: BOYER, Judge.

text:
    A. D. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. GG-257.
    District Court of Appeal of Florida, First District.
    Feb. 22, 1978.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   BOYER, Judge.

The appellant appeals his convictions and sentences on three counts of receiving and concealing stolen property. Each count of the three-count information charged that the appellant received or concealed stolen property on September 30,1976, contrary to Section 812.031(1), Florida Statutes (1975), although each count alleged different ownership of the stolen property.

The evidence was sufficient to support the conviction. However, we agree that since the single transaction rule is applicable, only one judgment and one sentence may be imposed. Avilia v. State, 278 So.2d 298 (Fla. 4th DCA 1973); Speregen v. State, 351 So.2d 1074 (Fla. 2d DCA 1977).

The evidence revealed that all the stolen property, owned by three different individuals, was received and concealed by the appellant on just one occasion. Under these facts, only one offense of receiving and concealing stolen property was committed.

Therefore, the cause is affirmed and remanded with directions to enter one judgment and one sentence for the offense. The appellant need not be present for this purpose.

AFFIRMED and REMANDED with directions.

McCORD, C. J., and SMITH, J., concur.


text:
    Randall Francis REARDON, Appellant, v. Shelly Ann REARDON, Appellee.
    No. GG-496.
    District Court of Appeal of Florida, First District.
    Feb. 22, 1978.

      Robert H. Wilson, III of Harrell, Wilt-shire, Stone & Swearingen, Pensacola, for appellant.
    George G. Phillips, Pensacola, for appel-lee.
   PER CURIAM.

The husband appeals the final judgment awarding the wife rehabilitative alimony and attorney fees. We find the trial judge erred in awarding attorney fees since the wife made no request for such fees in her pleading. Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977).

We also find error in the trial judge’s award of rehabilitative alimony. The wife did not appear at the final hearing and failed to present any testimony whatsoever concerning her needs. Any award of alimony of course must be based on the spouse’s needs and the other’s ability to pay. Sisson v. Sisson, 336 So.2d 1129 (Fla. 1976). The awards of rehabilitative alimony and attorney fees are therefore

REVERSED.

BOYER, Acting C. J., and MILLS and ERVIN, JJ., concur.


author: MILLS, Judge.

text:
    FRIER’S, INC. and Hartford Accident and Indemnity Company, Appellants, v. SEABOARD COASTLINE RAILROAD COMPANY and Billy Jean Parker, Appellees.
    No. CC-464.
    District Court of Appeal of Florida, First District.
    Feb. 22, 1978.
    Rehearing Denied March 14, 1978.

      Richard T. Jones of Jones & Ritch, Gainesville, for appellants.
    John R. Young, Delray Beach, E. A. Sellers, Live Oak, Robert O. Stripling, Jr., Gainesville, William R. Swain and Douglass E. Myers, Jr., of Webb, Swain & Watson, Jacksonville, for. appellees.
   MILLS, Judge.

This action arose from an automobile-train collision in which a passenger in the car was killed. The automobile was owned by Frier’s Inc. (Frier’s) and insured by Hartford Accident and Indemnity Company (Hartford). Seaboard Coastline Railway Company (Seaboard) owned the train. A wrongful death action was brought by Billie Jean Parker (Parker), mother of the deceased, against Frier’s, Hartford and Seaboard. Prior to trial, Parker entered into a “Mary Carter” agreement with Frier’s and Hartford. The agreement provided that: (a) if Parker received a judgment in excess of $85,000 against all defendants, she would pursue satisfaction of the judgment only against Seaboard and not against Frier’s and Hartford; (b) if Parker received a judgment of less than $85,000 against all the defendants, she would pursue satisfaction against Seaboard, and Frier’s and Hartford would pay the difference between the amount collected from Seaboard and $85,000; (c) if Parker received a judgment in any amount against Frier’s and Hartford only, Frier’s and Hartford would pay Parker $85,000; (d) if Parker did not receive a judgment against any of the defendants, Frier’s and Hartford would pay $85,000. After trial, final judgment was entered against Frier’s, Hartford and Seaboard in the amount of $150,000. Seaboard filed a post-trial motion for contribution from Frier’s and Hartford and attached to the motion the agreement entered into by Frier’s, Hartford and Parker. The motion alleged that the agreement was not based upon any consideration and “. . . attempts to abrogate the provisions of Florida Statute 768.31 . . .” The trial court granted Seaboard’s motion for contribution and ordered that Frier’s and Hartford pay Seaboard $75,000, plus one-half the costs and interest.

Frier’s and Hartford contend that the trial court erred in failing to apply Section 768.31(5)(b) and ordering contribution. Subsection 768.31(5) of Florida’s Uniform Contribution Among Tortfeasors Act reads as follows:

“(5) Release or covenant not to sue.— When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of consideration paid for it, whichever is the greater; and,
(b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.”

Agreements of the general type entered into by Frier’s, Hartford and Parker are known loosely as Mary Carter agreements, receiving their name and judicial recognition in the case of Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla. 2d DCA 1967).

A Mary Carter agreement is an agreement entered into between a plaintiff and one or more but not all defendants which typically has the following features:

(A) secrecy;

(B) the agreeing defendants remain as party defendants in the lawsuit;

(C) the agreeing defendants’ liability is decreased in direct proportion to the nonagreeing defendants’ increase in liability;

(D) the agreeing defendant guarantees to the plaintiff a certain amount of money if plaintiff does not receive a judgment against any of the defendants or if the judgment is less than a specified sum.

See Ward v. Ochoa, 284 So.2d 385 (Fla.1973); Booth v. Mary Carter Paint Co., supra. Mary Carter agreements are valid in Florida, Weinstein v. National Car Rentals, 288 So.2d 509 (Fla. 2d DCA 1974); however, the courts have not overlooked the fact that such agreements can be extremely prejudicial to the nonagreeing defendant and have attempted to mitigate the harmful effects by permitting pretrial discovery of the agreement and by holding that the agreements are admissible into evidence. Ward v. Ochoa, supra; Maule Industries, Inc. v. Roundtree, 284 So.2d 389 (Fla.1973).

The agreement between Parker, Frier’s and Hartford is obviously a Mary Carter agreement. It is also a covenant not to enforce judgment. Section 768.31(5)(b) clearly states that when a covenant not to enforce judgment is given in good faith, “. . . [i]t discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.” Under this provision a tortfeasor is not discharged from liability for contribution merely because he has been given a release or covenant not to enforce judgment. The covenant must have been given in good faith.

In determining whether a covenant has been given in good faith, the Act within which the term is found must be considered. The purpose of the Act is to distribute the burden of responsibility equitably among those who are jointly liable to an injured party. Commissioners’ Prefatory Note (1955 Revision), Uniform Contribution Among Tortfeasors Act, 12 U.L.A. 59 (1975). At the same time, the Act encourages settlements. Commissioners’ Comment, § 4, 12 U.L.A. 99 (1975).

The 1939 Act promoted equitable sharing to the extent of providing that a release did not discharge the tortfeasor to whom it was given from contribution, unless the release provided for a reduction, to the extent of a pro rata share, of the injured person’s damages recoverable against the other tort-feasors.

“The idea underlying the 1939 provision was that the plaintiff should not be permitted to release one tortfeasor from his fair share of liability and mulct another instead, from motives of sympathy or spite, or because it might be easier to collect from one than the other; and that the release from contribution affords too much opportunity for collusion between the plaintiff and the released tortfeasor against the one not released.” Commissioners’ Comment, § 4, supra.

It was soon discovered that although the 1939 Act promoted equitable sharing, it made it almost impossible for a tortfeasor to settle. Thus, the Act was revised in 1955, settlements were encouraged, and the good faith standard for settlement added.

In River Garden Farms, Inc. v. Superior Court for County of Yolo, 26 Cal.App.3d 986, 103 Cal.Rptr. 498 (Cal. 3d DCA 1972), the court considered at length the implication of the good faith clause and found that the good faith standard provided the balance between the possibly conflicting goals of final settlement and equitable sharing.

“. . . [A] plaintiff armed with a strong and lucrative claim, [could] settle with his antagonists one by one, preserving for the jury the opponent with the most money and least sympathy. The power is great and vulnerable to abuse. In a multi-party case the threat of an unshared judgment against the last remaining defendant — diminished only by meager settlements with his eager fellows — permits a plaintiff to create acute financial pressures bordering on extortion. Viewed as a demand for settlements which have a reasonable relation to the value of the plaintiff’s case, to the strengths and weaknesses of the parties and the financial ability of the settlor, the good faith clause aids the statutory goal of equitable sharing. It also aids the goal of settlement, by preventing a plaintiff from selecting one defendant as a target for enlarged demands after unreasonably low settlements with others.” 103 Cal.Rptr. at 503, 504.

The Commissioners’ Comment to the 1955 revision notes that the good faith requirement allows the court “. . .to deter-

mine whether the transaction was collusive, and if so there is no discharge.”

“The notion of collusion advanced by the Uniform Law Commissioners implies something more than confederacy. Any negotiated settlement involves cooperation, but not necessarily collusion. It becomes collusive when it is aimed to injure the interests of an absent tortfeasor.” River Garden Farms, Inc. v. Superior Court for County of Yolo, supra, at 505.

Because of the nature of a Mary Carter agreement, some commentators have questioned whether such an agreement could ever be considered to have been given in good faith. See, Note, The Mary Carter Agreement — Solving the Problems of Collusive Settlements in Joint Tort Actions, 47 S.Cal.L.Rev. 1393, 1407 (1974); Freedman, The Expected Demise of “Mary Carter”: She Never Was Well! 633 Ins.LJ. 602, 219 (Oct.1975), However, we are not prepared to say that all Mary Carter agreements lack the essential good faith element. The question of whether a Mary Carter agreement, or any other agreement, has been made in good faith, must be raised in the trial court and a determination made based on the circumstances of that particular case.

In the case before us, Seaboard moved for contribution and attached the agreement between Parker, Frier’s and Hartford but did not specifically allege that the agreement was not entered into in good faith. In its order, the trial court found that the agreement had been entered into, but did not make a finding as to good faith. Further, we have not been furnished with a transcript of the proceedings in the trial court. Thus, from the record before us, we are unable to determine whether the question of good faith was at issue below.

Under the circumstances, this case is reversed and remanded to the trial court with instructions that Seaboard be permitted to amend its motion for contribution and that an evidentiary hearing be held on the issue of good faith.

BOYER, Acting C. J., and ERWIN, J., concur.


text:
    Frances E. LILLY, Appellant, v. Richard C. HUTCHINS, as Personal Representative of the Estate of Clifford F. Hutchins, Deceased, Appellee.
    No. 77-1015.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1978.
    Morris W. Milton of Williams & Milton, St. Petersburg, for appellant.
    James G. Gagnon, St. Petersburg, for ap-pellee.
   DANAHY, Judge.

At Christmastime, Clifford F. Hutchins, since deceased, gave appellant Lilly the sum of $13,000, which Lilly used to purchase and improve a piece of real property. In this suit, Hutchins’ son, Richard, as personal representative of Hutchins’ estate, sought to impress a constructive trust on the real property so acquired by Lilly on the ground that the property was purchased with the proceeds of a gift obtained by the exertion of undue influence on Hutchins by Lilly. After receiving evidence on behalf of both parties, the trial judge entered a final judgment finding that undue influence existed and imposing a constructive trust. Lilly appeals. We reverse.

It appears that Hutchins was approximately 90 years of age, in poor health, and unable to provide for himself. Lilly was employed as a professional homemaker by a nonprofit agency, and her services were made available to Hutchins at no charge to him. Pursuant to her employment, Lilly spent a few hours each week providing homemaker and personal services to Hutch-ins. In addition to those hours, Lilly would return to Hutchins’ house every week day after work to make certain that he had dinner, and would also spend her weekend time with him, preparing his meals. Additionally, Lilly would run errands for Hutch-ins, buy groceries, deposit checks, and sometimes prepare checks for Hutchins’ signature.

The gift in question was made less than three months after Lilly began to work for Hutchins. Policy of her employer prohibited her from accepting such a gift and, when the gift was discovered, Lilly was fired. Nevertheless, Lilly continued to perform full-time domestic and personal services for Hutchins until surgery required that she stop work. Hutchins died about nine months later.

The only testimony presented at the trial was that of Lilly, her supervisor at the agency, and a real estate agent. The final judgment contained findings that a confidential relationship existed between Lilly and Hutchins; that by reason of that confidential relationship, a presumption arose that the gift was the result of undue influence exerted upon Hutchins by Lilly; that the evidence offered by Lilly failed to rebut the presumption of undue influence; and that the evidence established that the gift was the result of undue influence on the part of Lilly absent such presumption.

Lilly does not here complain about the finding of a confidential relationship and the presumption of undue influence arising therefrom. Rather, she maintains that she rebutted the presumption of undue influence and further, that any remaining evidence of undue influence was overcome by testimony that the gift was a free and voluntary act. After carefully reviewing the record, we find that Lilly’s argument has merit.

First of all, we note that the trial judge apparently applied the correct rule of law. He specifically cited the decision of this court in Majorana v. Constantine, 318 So.2d 185 (Fla. 2d DCA 1975). Majorana adopted, for cases involving inter vivos gifts, the rule in will cases stated in In Re Estate of Carpenter, 253 So.2d 697 (Fla. 1971). The rule as stated in Carpenter and restated in Majorana is that where a presumption of undue influence arises, the burden placed upon the donee is only that of coming forward with a reasonable explanation for his or her active role in the decedent’s affairs. As the court noted in Carpenter, the precise nature of the explanation will vary depending on the facts giving rise to the presumption, and the sufficiency of the explanation to rebut the presumption will be for the trial judge to determine subject to review by an appellate court. When that burden is satisfied, the presumption will vanish from the case and the trial judge will be empowered to decide the case in accordance with the greater weight of the evidence without regard to the presumption. The court in Carpenter further noted, however, that since the facts giving rise to the presumption are themselves evidence of undue influence, those facts will remain in the case and will support a permissible inference of undue influence, depending on the credibility and weight assigned by the trial judge to rebuttal testimony.

We turn now to a consideration of the record to determine whether there was error in the finding of the trial judge that Lilly failed to rebut the presumption of undue influence, and also the finding that undue influence was proven even in the absence of the presumption. We find that Lilly provided a sufficient explanation and that, in the absence of the presumption, the overwhelming weight of the evidence established that the gift was a free and voluntary act.

The only evidence of the confidential relationship between Lilly and Hutchins was Lilly’s testimony. The relationship was of a domestic and personal nature, but there is no indication that Lilly participated in obtaining the checks representing the gift in question. By way of explanation, Lilly testified that she spent evening and weekend hours with Hutchins, feeding and caring for him, because otherwise he had no one to render these services to him and could not take care of himself. Lilly’s agency supervisor also testified that Hutchins was in need of such services. Lilly further testified that she liked Hutchins and they became friends.

Lilly related that, following a conversation in which Lilly told Hutchins of the circumstances of her life and her hard work to care for her children, Hutchins offered to give her the money to “put a roof over the heads of you and the children.” Lilly further testified that Hutchins indicated he had already made gifts to his two children and felt free to make this particular gift to Lilly. He repeated on several occasions that this was his money and he could do with it as he pleased. Both the agency supervisor and the real estate agent corroborated the voluntariness of the gift. In his own handwriting, Hutchins wrote a statement for the agency supervisor affirming the gift and stating that the gift was so that Lilly would continue to give Hutchins his baths and treatment. Even though at one point the agency supervisor tried to dissuade Hutchins from making the gift, Hutchins repeatedly insisted he wished to make the gift and stated to her, “Can’t you get it through your head that this is my money and I will do with it as I please?” Hutchins also told the agency supervisor that Hutchins’ daughter knew about the gift and approved of it. The real estate agent related several conversations he had with Hutchins in which Hutchins similarly expressed a clear intent to make a gift of the money to Lilly.

In the absence of any evidence whatsoever to contradict the testimony of Lilly, the agency supervisor and the real estate agent, we hold that the trial judge erred in finding undue influence. This case is reversed with instructions to enter judgment in favor of Lilly.

BOARDMAN, C. J., and GRIMES, J., concur.

      . The trial judge also found that the gift by Hutchins was conditioned upon the further rendition of services by Lilly as well as repayment of the gift; however, we do not touch on those issues here, since this case was tried solely on the theory of undue influence.


text:
    Robert A. BENZ, Appellant, v. Christine M. BENZ, Appellee.
    No. DD-255.
    District Court of Appeal of Florida, ■First District.
    Feb. 23, 1978.

      M. J. Menge of Shell, Fleming, Davis & Menge, Pensacola, for appellant.
    W. H, F. Wiltshire of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appel-lee.
   MILLS, Judge.

This is an appeal from an order modifying final judgment entered in a dissolution of marriage proceeding. The major point on appeal is whether there was a sufficient change in the circumstances of the parties to justify the increase in child support from $100 to $250 per child per month, an increase in rehabilitative alimony from $200 to $450 a month, and an extension of rehabilitative alimony for one year.

The determination of the trial court regarding modification of alimony and child support will not be disturbed on appeal unless it is clearly shown that the trial court abused its discretion. Zammas v. Zammas, 328 So.2d 519 (Fla.3d DCA 1976). The trial court’s finding that there has been a substantial and material change in circumstances between the parties since the entry of the final judgment is supported by competent evidence. The trial court did not abuse its discretion in increasing the amount of child support from $100 to $250 per month per child; however, we do not believe that the increase and extension of rehabilitative alimony was supported by the evidence presented to the trial court. Since the entry of final judgment Mrs. Benz has become employed full time (nine months out of the year) as a teacher’s aide. She did not testify that she was precluded from obtaining any educational or other rehabilitative benefits because she had to work. She did not indicate that there were any career opportunities that she wished to pursue. The increased needs of the family, as indicated by Mrs. Benz’s financial affidavit, were fully covered by the increase in child support payments. We therefore find that there was no basis in the record for the extension and increase in rehabilitative alimony.

We find that the trial court properly awarded attorney’s fees to Mrs. Benz and that the amount awarded was reasonable. We do not find that the trial court erred either in refusing to consider Mr. Benz’s testimony concerning Mrs. Benz’s financial affidavit or in denying the motion to transfer. However, we believe that the trial court should have delineated Mr. Benz’s visitation rights with the children since both parties requested that this be done and it is not clear from the record before us that any agreement on this issue was reached.

' Therefore, this cause is affirmed in part, reversed in part, and remanded to the trial court for entry of an order specifying Mr. Benz’s visitation rights with his children.

McCORD, C. J., and BOYER, J., concur.


author: McCORD, Chief Judge.

text:
    Charles E. NELSON and Arthur Anderson & Co., Petitioners, v. STATE BOARD OF ACCOUNTANCY, DIVISION OF PROFESSIONS, DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, Respondent.
    No. 11-58.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1978.
    Melvin N. Greenberg, Byron G. Peterson, of Greenberg, Traurig, Hoffman, Lipoff, Quentel, Wright & Wolff, Miami, for petitioners.
    James S. Quincey, of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, and Parker D. Thomson, of Paul & Thomson, Miami, for respondent.
   McCORD, Chief Judge.

This cause is before the court on the petition of Charles E. Nelson and Arthur Anderson & Co., for review of preliminary, procedural, or intermediate agency action pursuant to § 120.68(1), Florida Statutes (1975), and on the State Board of Accountancy’s motion to dismiss the petition for review. Pursuant to § 473.261(4), Florida Statutes (1975), respondent filed a complaint against the petitioners purportedly based upon findings by respondent that petitioners had violated certain statutes and rules of respondent. The complaint is now pending before the Division of Administrative Hearings under § 120.57(1), Florida Statutes (1975), upon petitioners’ request for hearing.

Petitioners contend that respondent Board failed to comply with requirements of law essential to probable cause findings against petitioner. Respondent, by its motion to dismiss, contends that this Court lacks subject matter jurisdiction under § 120.68, Florida Statutes, in that review of the final agency decision will provide an adequate remedy to petitioners. It appears that petitioners have raised before the hearing officer the question which they now raise here, and the hearing officer has not ruled upon such question. Petitioners are in doubt whether or not the hearing officer has authority to make such ruling and by this proceeding seeks this Court’s ruling in lieu of a ruling by the hearing officer.

It is our ruling that the hearing officer has authority to make such preliminary ruling which will, of course, be subject to ultimate review by this Court; that such ultimate review of final agency action will provide an adequate remedy to petitioner.

The petition for review is dismissed.

BOYER, J., and MASON, ERNEST E., Associate Judge, concur.