author: PER CURIAM.

text:
    Billie Joe BROOKS, Sr. and Hawthorne Konrad Matthews, Appellants, v. STATE of Florida, Appellee.
    No. BB-401.
    District Court of Appeal of Florida, First District.
    July 26, 1976.
    Rehearing denied Sept 9, 1976.
    Paul Shimek, Jr., of Shimek & McDaniel, P. A., Pensacola, for appellants.
    Robert L. Shevin, Atty; Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This áppeal is moot as to appellant Brooks. The order appealed from by appellant Matthews is

AFFIRMED.

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


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    Billie Joe BROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. BB-372.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1976.
    Paul Shimek, Jr., and Stephen E. Sutherland of Shimek & McDaniel, Pensacola, for petitioner.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for respondent.
   SMITH, Judge.

After a county court jury trial in which he was unattended by counsel, petitioner Brooks was convicted of unlawful assembly and malicious trespass and was sentenced to pay a fine of $500. The judgments were affirmed on his appeal to the circuit court, which found that Brooks “with knowledge of his right to counsel intelligently waived such right.” By petition for writ of certiorari Brooks asserts that the county court did not appropriately caution him against the perils of self-representation and that, in affirming his convictions, the circuit court departed from essential requirements of law securing his right to counsel. We granted the petition, see Dresner v. City of Tallahassee, 164 So.2d 208 (Fla.1964), and have examined the entire appellate record.

This prosecution arose out of the February 1975 demonstrations at the Escambia County jail with which we are concerned in Matthews and Brooks v. State, 336 So.2d 643 (Fla.App.1st, 1976). Matthews and Brooks are black clergymen who led a crowd of approximately 200 demonstrators protesting the shooting death of a black youth and demanding discharge of the deputy sheriff who the grand jury found fired in self-defense. We affirmed the extortion conviction of Matthews, who the evidence showed “consciously embraced fear of bodily injury as an instrument of enforcing otherwise lawful demands,” but reversed that of Brooks for lack of proof that his “participation in the demonstration exceeded the bounds of permissible expression protected by the First and Fourteenth Amendments.” Matthews and Brooks v. State, 336 So.2d at 646.

Shortly after his extortion trial in the circuit court, where the defense was conducted by retained counsel Ed Duffee, Jr., Brooks was scheduled for trial on the present charges in Escambia’s county court. Again his retained counsel was Duffee, who appeared for Brooks, entered a not guilty plea and presented appropriate motions. On the morning of the scheduled trial in Pensacola, Duffee did not appear. After a wait, Brooks and county court Judge Lager-gren telephoned Duffee’s Tallahassee office and spoke with the attorney, who explained that he had failed to note Brooks’ trial date on his calendar and that he was engaged in another trial and unable to leave for Pensacola that day. There is no county court record of the ensuing exchange between Judge Lagergren and Brooks but it is undisputed, as the circuit court noted on appeal, that neither Duffee nor Brooks requested a continuance because of the absence of retained counsel.

Brooks went to trial without counsel. He explained to prospective jurors, during his voir dire examination of them, that “This matter has been pending for quite some time and it’s a strain on me having to worry about this matter, and I wanted to go ahead and get it over with.” Brooks presented testimony and arguments to the court and jury, objected to questions propounded to witnesses by the prosecutor, cross-examined State witnesses and called his own. The circuit court decision accurately recites that Judge Lagergren’s conduct of the trial was solicitous of Brooks and his efforts to defend himself. After deliberating 34 minutes, the jury found Brooks guilty of unlawful assembly and malicious trespass.

At the outset of considering Brooks’ constitutional claims, we put aside entirely the intimation of Brooks’ affidavit, apparently filed during the circuit court appeal without leave, without requesting a remedy and without objection, that the prosecutor and sheriff “pressured” and “pushed” him to go to trial without counsel. After the trial but before the adjudication and sentencing, Brooks retained new counsel who still attends him, and there was ample opportunity to apply in the trial court for appropriate relief on a showing of undue State action which “pressured” Brooks not to claim his right of counsel. Brooks had a further opportunity in the appeal court to seek a remand for findings on that subject. Because Brooks did not do so, there has been no appropriate application for relief and no adversary hearing concerning the State’s asserted misconduct. Having in mind our limited role in common law certio-rari review, we may not credit here the conelusory assertions of Brooks’ affidavit on appeal that “I reluctantly gave in to the pressures of the States Attorney and Sheriff’s Department pushing me to trial.”

The central issue is whether Brooks’ conviction could properly be upheld by the circuit court in the absence of a trial court record demonstrating that, through advice from Judge Lagergren or otherwise, Brooks was

. . made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581 (1975).

Long before the Sixth Amendment’s guaranty of counsel was held applicable to the States through the Fourteenth, the strong presumption against an accused’s waiver of counsel in federal prosecutions was held to require a convincing record that the accused was suitably cautioned about the dangers and difficulties of self-representation. Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1467 (1937); Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 323, 92 L.Ed. 309, 321 (1948). The requirement of judicial safeguards against uninformed waiver of the right to counsel is but a corollary of the primary right. Thebe is no record that such safeguards were afforded in this case. That and other circumstances — Brooks’ earlier and considered choice to retain counsel and his abrupt counterchoice in the extremity of attorney Duffee’s absence and inexplicable failure to ask for a continuance — indicate that Brooks was not adequately warned of the dangers of proceeding without counsel.

There was compelling poignancy in Brooks’ thrashing efforts to defend himself at trial. He of course had difficulty with courtroom strategy and procedure. Predictably, his role before the jury as interrogator and advocate made it all but impossible for him also to preserve his right as the accused not to testify and to rely on any weaknesses in the State’s case. More fundamentally still, the conduct for which he was prosecuted involved elements of pure and symbolic speech, protected by the First and Fourteenth Amendments, and there were delicate questions of Brooks’ vicarious responsibility for the malevolence of other demonstrators. See Matthews and Brooks v. State, 336 So.2d 645—46. Although Brooks sensed the presence of those issues, he was incompetent to make them significant factors in his defense. The court’s charge to the jury, uninformed by the influence of a competent defense lawyer, said nothing of protected speech and left undefined the concepts of “malicious trespass” and “unlawful assembly.”

Plain as it is that Brooks’ defense suffered from the absence of a competent lawyer, the circuit court did not depart from the essential requirements of law in refusing on that ground to set aside his conviction. Brooks was fined, not imprisoned, for his offenses. In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Supreme Court held that a person convicted of crime may not be imprisoned unless he has knowingly and intelligently waived the right to counsel or was attended by counsel at trial. Argersinger thus extended the right of counsel to prosecutions for “petty” offenses for which imprisonment results, but stopped short of requiring State implementation of the right of counsel in the great mass of prosecutions where there is either no prospect of imprisonment or, after trial, no imprisonment in fact. Thus the trial court’s failure to warn Brooks concerning the dangers and disadvantages of self-representation was not a constitutional impediment to his conviction. If by withholding imprisonment the State retrospectively avoided any obligation to afford Brooks free counsel, had he been insolvent and desirous of counsel, there could be no duty to admonish Brooks, whether he was solvent or otherwise, concerning the folly of self-representation.

In deciding Argersinger, Justices Powell and Rehnquist would have extended the right of counsel to any case in which “the assistance of counsel is necessary to assure a fair trial,” including those in which “complex legal and factual issues . . . may not be fairly tried if the defendant is not assisted by counsel” and those in which personal “stigma” or injury to substantial property rights and interests will result from conviction. 407 U.S. at 47-49, 92 S.Ct. at 2017-18, 32 L.Ed.2d at 544-45. The majority reserved its opinion of whfether “problems [preventing a fair trial] are raised even in situations where there is no prospect of imprisonment.” 407 U.S. at 37, 92 S.Ct. at 2012, 32 L.Ed.2d at 538.

Notwithstanding the attraction of the Powell-Rehnquist view in the present circumstances, a decent respect for the limits of our own jurisdiction and for the logistical impact of further extending the right to counsel in Florida municipal and county courts requires that we decline -to extend the rule of Argersinger to this case. We therefore hold that Judge Lagergren, having afterwards withheld imprisonment as punishment, had no duty at trial to dissuade Brooks from self-representation or to caution him against it.

We do not ignore or underestimate the facts that Brooks’ defense required handling by a skilled and dedicated lawyer, that Brooks’ first and considered choice was to retain counsel, that Brooks did not appreciate the difficulty of defending himself and that, in addition to exacting a monetary fine, these convictions may deter Brooks in the future free exercise of First Amendment rights. There are unique circumstances here which made Brooks’ self-representation an obviously poor choice. But experienced prosecuting and defense lawyers know that the same is true in every case, whether sentence is imposed or withheld, whether punishment is by fine or imprisonment. The expression “relatively simple cases” may be useful to commentators in making abstract comparisons, but it is meaningless as a description of any single case. So misapplied, as we have said before, such a characterization serves only to deprecate the quality of the advocacy present. There are no “simple” criminal defense representations, and those that seem so a,re merely not understood.

The writ of certiorari is discharged.

BOYER, C. J., and MILLS, J., concur.

      . “If three or more persons meet together to commit a breach of the peace, or to do any other unlawful act, each of them shall be guilty of [unlawful assembly].” Sec. 870.02, F.S. 1973.

      . “Every trespass upon the property of another, committed with a malicious and mischievous intent, the punishment of which is not specially provided for, shall be guilty [sic] of a misdemeanor of the second degree. . . .” Sec. 821.18, F.S. 1973.

      . Both offenses charged were misdemeanors of the second degree, punishable by imprisonment for 60 days or by a fine of $500, or both. Secs. 775.082(5)(b), 775.083(4), F.S.1973. The trial court imposed the $500 fine on the unlawful assembly charge and suspended sentence on the conviction for malicious trespass “when the $500 is paid.” The sentence was accompanied by the court’s advice that, failing timely payment, Brooks would be “committed to jail until the monies are paid.” We do not regard that statement as changing the essential character of the nonimprisonment sentence. However, because our decision rests squarely on the trial court’s withholding of imprisonment as punishment, we caution that imprisonment as a means of collecting a fine may constitutionally be imposed only on “a defendant with the means to pay a fine who refuses or neglects to do so.” Tate v. Short, 401 U.S. 395, 400, 91 S.Ct. 668, 672, 28 L.Ed.2d 130, 134 (1971).

      . Brooks’ affidavit states:
      “July 8, 1975, was the date set by the Court for my trial. At approximately 9:00 on July 8, 1975, I appeared at Judge Lagergren’s office awaiting my trial and fully expecting my attorney, Ed Duffee, to be present to try the case. I waited approximately one hour to one hour and a half for Ed Duffee to arrive, it being suggested by the Judge that he was probably enroute from Tallahassee. Also awaiting his arrival was the State Attorney, Joseph Schiller, Sergeant Jim Edson of the Sheriff’s Department, and Deputy Officers Sandiford and Caldwell.
      “The Assistant State Attorney said he was anxious to try the case because he had called two deputies away from family and vacation in Disney World for the trial, and he requested the Judge to place a call to Ed Duffee in Tallahassee. The Judge in fact placed the call to Duffee’s office in Tallahassee for the purposes of ascertaining his whereabouts. At this point in time, the Judge and I talked to Duffee over the telephone and found out that he (Duffee) made a mistake on his calendar and was currently trying another case in Leon County on this date and would not be in Pensacola. With this revelation I did not know what to do.
      “The State being anxious for trial because of the inconvenience to the deputy officers, the trial judge inquired of me whether I too was anxious to get this case tried, and further informed me that I could represent myself if I so desired.
      “I indicated to the Judge that surely I wanted to get the case over with and that is why it was set for trial in about the next thirty (30) minutes.
      “At no time was I ever advised by either the Court or the State Attorney that the trial could be postponed to a later date. If I had known that I could have postponed the trial under these circumstances, even for two or three days, I would have done so. I was totally unprepared to handle the case by myself with only thirty (30) minutes notice that hired counsel would be absent.
      “I have since observed two trials of my co-defendant, OTHA LEVERETTE, both of which resulted in hung juries. The charges against him were exactly the same as against myself. I now see clearly the numerous errors I committed in trying my case by myself. There are no words that can describe the comparison between the two LEVERETTE trials with counsel and my trial without preparation, warning, or trial counsel. I was so disappointed, disgusted, and frustrated when my lawyer didn’t show up for trial that I didn’t know what to do. I reluctantly gave in to the pressures of the States Attorney and Sheriff’s Department pushing me to trial. I regret their influencing me, and I would never permit that again.”

      . “On a petition for a writ of certiorari to review an order of a circuit court in its appellate capacity, our review is limited to the face of the record to determine whether the circuit court has exceeded its jurisdiction or has otherwise departed from the essential requirements of law. Dresner v. City of Tallahassee, 164 So.2d [at 211], . . Coffman v. State, 292 So.2d 608, 609 (Fla.App.4th, 1974).

      . Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

      . . a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances . .

      . The information was read aloud and was sent to the jury room. It charged that Brooks and others “did unlawfully meet together upon the premises of the County Jail of Escambia County, Florida to commit a breach of the peace or to do an unlawful act or acts . . ” and, as a second count, that Brooks “did unlawfully trespass, with a malicious and mischievous intent, upon the premises of the County Jail . . . During the voir dire examination of veniremen, the trial judge stated that “[t]he elements of these charges will be explained to you later.” That was never done. No point was made of it on Brooks’ counsel-assisted appeal. Contrast Adderley v. Florida, 385 U.S. 39, 43 n. 2, 87 S.Ct. 242, 245, 17 L.Ed.2d 149, 153 (1966).

      . A condition of Brooks’ probation on the felony conviction was that he “not conduct or participate in any public demonstrations in the state of Florida or elsewhere.” Matthews and Brooks v. State, 336 So.2d at 644 n. 2. We held that condition impermissibly broad as an explicit term of probation.

      . Argersinger, 404 U.S. at 47, 92 S.Ct. at 2017-18, 32 L.Ed.2d at 544 (concurring opinion).

      .“Preparation for trial is simple only to the lazy or uninformed. It is complex to lawyers for whom no fact exists if it cannot be proven, who doubt the easy assumption and the merely plausible witness, who exhaust all hypotheses and themselves in tracking the evidence. Such craftsmanship in advocacy is the pride of our judicial system.” State ex rel. Gentry v. Fitzpatrick, 327 So.2d 46, 47 (Fla.App.1st, 1976).


author: MILLS, Judge.

text:
    Joseph M. JOHNSON, Appellant (Defendant), v. Ray WILSON, Sheriff of Okaloosa County, Florida, Appellee (Plaintiff).
    No. BB-433.
    District Court of Appeal of Florida, First District.
    Aug. 20, 1976.
    Rehearing Denied Sept. 20, 1976.

      David A. Barrett, Tallahassee, for appellant.
    William D. Barrow, Crestview, Jack M. Skelding, Jr. of Madigan, Parker, Gatlin, Truett & Swedmark, Ben Patterson, Tallahassee, Eugene P. Spellman, Miami, for appellee.
    Robert L. Shevin, Atty. Gen., Donald D. Conn, Asst. Atty. Gen., amicus curiae.
   MILLS, Judge.

The issue raised by this appeal is whether Chapter 74-274, Laws of Florida, referred to as the Police Officers’ Bill of Rights, and subsequently enacted as Sections 112.531-112.534, Florida Statutes (1975), is applicable to the constitutional office of Sheriff.

On 1 September 1964, Sheriff Wilson appointed Mr. Johnson as a deputy sheriff. Johnson served as a deputy sheriff until 10 October 1974 when the Sheriff withdrew his appointment without notice and without a specific reason. Johnson wrote the Police Standards Board, now the Police Standards and Training Commission, stating that the Sheriff, had not afforded him the rights required by Chapter 74-274, and requesting the Board to take action permitted by the Chapter to enjoin the Sheriff from violating any rights he had under the Chapter.

The Sheriff then filed a declaratory judgment action against Johnson, which among other things, challenged the applicability of Chapter 74-274 to his office as Sheriff. After a non-jury trial, the trial court ruled that Chapter 74-274 was not applicable to the constitutional office of Sheriff. Johnson appeals from the adverse final judgment.

An employing agency is defined as any municipality or the state or any political subdivision thereof which employs law enforcement officers. Section 112.531(2), Florida Statutes (1975). A political subdivision includes counties, cities, towns, villages, special tax districts, special road and bridge districts, bridge districts and all other districts in the state. Section 1.01(9), Florida Statutes (1975). A law enforcement officer is any person, other than a chief of police, employed full time by any municipality or this state or any political subdivision thereof, whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, traffic or highway laws of this State. Section 112.531(1), Florida Statutes (1975).

Chapter 74-274 must be given its plain and obvious meaning. Brooks v. Anastasia Mosquito Control District, 148 So.2d 64 (Fla. 1st DCA 1963). The language used in the Chapter is so plain and unambiguous that it leaves no room for doubt as to the intent of the legislature in enacting it.

It is obvious that Sheriff Wilson, who is a constitutional officer, is not a municipality, is not the State of Florida, and is not a political subdivision of the state.

It is also clear that the Sheriff did not employ Johnson as a deputy sheriff but appointed him which gave him the same power as the Sheriff under whom he was acting. Section 30.07, Florida Statutes (1975). Johnson was not an employee but was an officer. Blackburn v. Brorein, 70 So.2d 293 (Fla.1954); Parker v. Hill, 72 So.2d 820 (Fla.1954).

The trial court correctly held that Chapter 74-274, Laws of Florida, was not applicable to the constitutional office of Sheriff.

We affirm the final judgment.

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


text:
    Arthur COPELAND, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-803 to 74-806.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1976.
    James A. Gardner, Public Defender, Harold H. Moore, Asst. Public Defender, Sarasota, and Tonya Ostapoff, Student Asst., Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was indicted for murder in the first degree and charged in three separate informations with the offense of using a firearm in the commission of a felony, robbery and a felon in possession of a firearm. Pursuant to a plea bargain he pled guilty to murder in the second degree and guilty to the other offenses charged by informations. He was sentenced to serve life in the state penitentiary on the murder charge and 15 years imprisonment to run concurrently with the life sentence for possession of a firearm while in the commission of a felony. He received a consecutive sentence of 50 years on the robbery offense, the latter sentence to run concurrently with a 15-year sentence imposed by the court for felonious possession of a firearm. Appellant timely appeals each of the judgments and sentences of the trial court.

Appellant’s sole contention is that the trial court erred in imposing four separate and cumulative sentences for offenses arising out of the same criminal transaction.

Upon review of the record and briefs and applicable case law, the sentences imposed on the offenses of murder in the second degree, robbery and felon in possession of a firearm are affirmed. See the very recent decision of our supreme court in McCloud v. State, Fla.1976, 335 So.2d 257, wherein the court held that dual sentences can be imposed for separate convictions for felony-murder and robbery. The sentence imposed on the offense of possession of a firearm in the commission of a felony is vacated and set aside. See Cone v. State, Fla.1973, 285 So.2d 12.

AFFIRMED in part; REVERSED in part; and REMANDED to the trial court with directions to resentence appellant in accordance with this opinion.

HOBSON, Acting C. J., and BOARD-MAN and SCHEB, JJ., concur.


author: ALDERMAN, Judge. DOWNEY, Judge

text:
    Thellie S. ROPER, Petitioner, v. James F. ROPER, Respondent.
    No. 76-583.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1976.
    Rehearing Denied Sept. 8, 1976.

      Jay M. Cohen, of Levine & Cohen, Orlando, for petitioner.
    G. Bruce Hill, of Adams, Best & Sears, Orlando, for respondent.
   ALDERMAN, Judge.

Petitioner, wife in a dissolution of marriage action, seeks relief by writ of certiora-ri from an order requiring her psychiatrist to testify at a discovery deposition.

The respondent-husband first contends that petition for writ of certiorari is not the correct procedure for obtaining relief from an adverse interlocutory order in a civil action formerly cognizable in equity. Technically this is correct. Dissolutions of marriage were formerly cognizable at equity; thus, under Rule 4.2 F.A.R., an interlocutory appeal is permissible and certiorari is consequently an inappropriate remedy. A writ of certiorari is normally available to obtain review only where no other method of appeal is available. DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957).

We have in the past held that improvidently filed petition for certiorari could not be treated as an appeal. Knight v. Edwards, 276 So.2d 499 (4th DCA Fla. 1973). However, the Supreme Court has subsequently held that an improvidently filed petition for certiorari may be treated as an appeal. The Supreme Court referring to Article V, Section 2(a) of the Florida Constitution, stated:

“. . . The salutary purpose of the constitutional provision is to insure that improper or misconceived remedies which have been sought will not justify dismissal of causes or reviews where a proper remedy or review procedure is available, provided the review sought was timely brought.” State v. Johnson, 306 So.2d 102 (Fla.1974).

The remedy sought in this case was -timely brought, has merit, and therefore should not be denied solely on the basis of an improvidently invoked remedy.

In the action below both parties alleged that they were fit and proper to have the care, custody and control of their minor children, while denying that their spouse was so suited. The husband attempted to depose the wife’s psychiatrist. The wife instructed her psychiatrist not to testify, citing Fla.Stat. § 90.242 (1975). The trial judge ruled . .no privilege exists in this cause as to communications with or diagnosis or treatment of Thellie S. Roper (wife) insofar as her mental and emotional state relates to her fitness as a mother . . .” The doctor was ordered to answer questions touching on those matters. It is from this order that petitioner seeks relief.

This court has previously considered the psychiatrist-patient privilege. Yoho v. Lindsley, 248 So.2d 187 (4th DCA Fla.1971). We will not repeat the discussion contained in that case but will apply the principles there announced to the specific facts of this case.

The threshold question is whether or not the wife, by seeking child custody in a suit for dissolution of marriage, introduced her mental condition as an element of her claim or defense so as to waive the privilege for any relevant communications. Fla.Stat. § 90.242(3)(b) (1975). There is no doubt, in a child custody dispute, that the mental and physical health of the parents is a factor that the court can and should consider in determining the best interests of the child. Fla.Stat. § 61.13(3)(g) (1975). Green v. Green, 254 So.2d 860 (1st DCA Fla.1971). However, we do not believe that simply by seeking custody of her children, wife has made her mental condition “an element of her claim or defense” thereby waiving her psychiatrist-patient privilege.

The wife’s mental condition may become an issue in the case; and if so, relevant evidence concerning her mental condition may be presented at trial. Prior to trial, the husband has the benefit of Rule 1.360 R.C.P. Upon a proper motion and showing of good cause, the trial court can require the wife to submit to a compulsory pre-trial mental examination. Gordon v. Davis, 267 So.2d 874 (3rd DCA Fla.1972).

The husband contends however that the testimony of his wife’s treating psychiatrist would have more probative value than that of a court appointed psychiatrist. He questions whether a court-appointed psychiatrist would get the same cooperation from his wife that her personal psychiatrist received. This is not a valid point. Our courts, in both civil and criminal matters have long relied upon the testimony of court-appointed psychiatrists to determine a person’s mental condition. For example: The Baker Act, Fla.Stat. Ch. 394, and Rules 3.210 and 3.740 R.Cr.P. As we stated in Yoho v. Lindsley, supra, 248 So.2d at 191, “. . the trial court must strive to maintain the proper balance between ‘facilitating the ascertainment of truth in connection with legal proceedings and avoiding unwarranted intrusions into the confidences of the psychiatrist-patient relationship’.”

A psychiatric patient confides in his or her psychiatrist with more candor than he or she would normally exhibit in other relationships. Successful therapy and treatment requires complete disclosure of the most personal thoughts and recollections. A treating psychiatrist who cannot assure his patient of confidentiality would be severely handicapped. The psychiatrist-patient privilege would be seriously compromised if a treating psychiatrist could be required to testify against his patient in any divorce proceeding where the issue of child custody was raised. If such were the law, no psychiatrist could ever assure his patient of confidentiality.

We recognize that in a child custody case the mental health of a parent may be a relevant issue. Where this issue is raised the trial court must maintain a proper balance, determining on the one hand the mental health of the parents as this relates to the best interest of the child, and on the other maintaining confidentiality between a treating psychiatrist and his patient. The court in this case has an alternate tool which may accomplish both purposes. Upon proper motion the court may order a compulsory psychiatric examination.

The trial court would be faced with an entirely different situation if the wife should offer the testimony of her treating psychiatrist to prove her mental condition. In that event, the door would have been opened and the privilege waived. The husband on cross-examination could then inquire as to “any relevant communications” between his wife and her psychiatrist.

The trial court’s order requiring wife’s psychiatrist to give deposition testimony concerning communications with or diagnosis or treatment of wife, insofar as her mental and emotional state relates to her fitness as a mother, is reversed. The case is remanded for further proceedings consistent with this opinion.

WALDEN, J., concurs.

DOWNEY, J., dissents, with opinion.

DOWNEY, Judge

(dissenting).

I agree with the majority that the inadvertent filing of a petition for certiorari in this case should be treated as an interlocutory appeal upon authority of State v. Johnson, 306 So.2d 102 (Fla.1974), thus enabling this court to resolve the appellate issue presented.

However, it seems to me that when the appellant filed her counter petition alleging that she was a fit and proper person to have the custody of the two minor children of the parties and praying for custody, Section 61.13(3), Florida Statutes (1975), became applicable to this case. That statute mandates that in deciding custody the court shall determine the best interests of the children by evaluating all relevant factors, expressly including “the mental and physical health of the parents.” Section 90.242, Florida Statutes (1975), which creates the psychiatrist-patient privilege involved herein expressly excludes the privilege from applying to any relevant communications in a civil proceeding in which the patient introduces his mental condition as an element of his or her claim or defense.

As the majority points out, a required psychiatric examination is available to the court pursuant to Fla.R.Civ.P. 1.360. This rule is frequently used when a party’s mental condition comes into issue in custody matters. But can there be any real question that a prelitigation analysis and evaluation of a party by his psychiatrist will be much more informative and helpful to the court in determining the primary question in the litigation, viz., the best interests of the children? Thus, I believe the statute creating the privilege envisions that it could not be invoked in a case involving child custody.

The order appealed from does not purport to give the appellee unbridled license to explore appellant’s entire psychiatric history; rather it rightly limits the inquiry to communications, diagnosis, and treatment insofar as appellant’s mental and emotional state relates to her fitness as a mother.

Accordingly, feeling as I do that the trial court’s order authorizing the taking of the deposition of appellant’s psychiatrist under the facts of this case was correct, I would affirm that order.

      . Article V, Section 2(a), Florida Constitution: “The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought . . . ”

      . Fla.Stat. § 90.242: (1) As used herein “patient” means a person who, for the purpose of securing a diagnosis or treatment of his mental condition, consults a psychiatrist; “psychiatrist” means a person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry; “authorized representative” means a person empowered by the patient to assert the privilege granted hereunder and, until given permission by the patient to make disclosure, any person whose communications are made privileged in this section.
      (2) Except as hereinafter provided, in civil and criminal cases, in proceedings preliminary thereto, and in legislative and administrative proceedings, a patient or his authorized representative, has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications between patient and psychiatrist, or between members of the patient’s family and the psychiatrist, or records, relating to diagnosis or treatment of the patient’s mental condition.
      (3) There shall be no privilege for any relevant communications under this section:
      (a) If a judge finds that the patient, after having been informed that the communications would not be privileged, has made communications to a psychiatrist in the course of a psychiatric examination ordered by the court, provided that such communications shall be admissible only on issues involving the patient’s mental condition;
      (b) In a criminal or civil proceeding in which the patient introduces his mental condition as an element of his claim or defense, or after the patient’s death, when said condition is introduced by any party claiming or defending through or as a beneficiary of the patient.


text:
    Jeffrey MAXWELL, Appellant, v. STATE of Florida, Appellee.
    No. 75-185.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 1976.
    Rehearing Denied Sept. 13, 1976.
    John F. Pitcher, of Scovill & Pitcher, Sarasota, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The question presented on this appeal is whether possession of marijuana was appellant’s “second offense,” and, therefore, a felony, when appellant had previously been placed on probation (but not adjudicated guilty) for a similar charge.

On April 26,1973, following a plea of nolo contendere, appellant was placed on probation for misdemeanor possession of marijuana. Adjudication of guilt was withheld and the period of probation was three years.

On October 31, 1974, appellant was charged with felony possession of marijuana (less than five grams), and felony possession of paraphernalia, under Fla.Stat. § 893.13. The information alleged that it was appellant’s “second such offense.”

Appellant moved to dismiss on the grounds that he had never been convicted of a like offense. The motion was denied. Appellant pled nolo contendere, preserving his right to raise this point on appeal. He was sentenced to two and one-half years, with three months to be spent in county jail and the remainder withheld.

Florida Statute § 893.13(l)(f) provides:

“(f) If the first offense is the possession or delivery without consideration of not more than [five] 5 grams of cannabis, that person shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 and § 775.083

Appellant points to Pope v. State, Fla.App.2d 1972, 268 So.2d 173, in which we stated that an allegation of a previous “conviction” was necessary to give the felony court jurisdiction of a marijuana charge under Fla.Stat. § 404.15 (1971), the predecessor to Fla.Stat. § 893.13(l)(f). Our Supreme Court has made a similar statement in Patterson v. State, Fla.1975, 313 So.2d 712.

The state argues these cases are not applicable because Fla.Stat. § 893.13(l)(f), unlike its predecessor, unambiguously refers to a first offense, not a first conviction and that the legislature deliberately chose the word “offense” as a more general term. It is not necessary to decide this point, however, because even if the legislature had used the word “conviction” in the statute, that would not necessarily support appellant’s position. In State v. Gazda, Fla.1971, 257 So.2d 242, the Supreme Court distinguished between a “conviction” and a “judgment of conviction” for the purposes of construing Fla.Stat. § 775.14, Limitation on Withheld Sentences. The court held that for the purposes of that statute the term “conviction” means determination of guilt by verdict of the jury or by plea of guilty, and does not require adjudication by the court. Cf. Singletary v. State, Fla. App.4th 1974, 290 So.2d 116, at note 4.

We think the reasoning of Gazda, supra, is persuasive in the present case. The intent of the legislature was to prevent the conferring of felony status upon the accused the first time he is found in possession of a small quantity of marijuana. But once possession has been judicially established, whether by a guilty plea, a nolo plea, or a jury verdict, the status of the second charge must not be determined on the basis of whether or not the judge had withheld adjudication pursuant to RCrP 3.670. If that were the controlling factor, a judge may be reluctant to exercise the power to withhold adjudication granted under the above rule. He might be unwilling to give the defendant an unwarranted second chance to risk no more than another misdemeanor charge should the defendant again possess marijuana. This in turn would be a great detriment to first offenders.

There are two other statutes which may bear upon the present problem. Florida Statute § 893.14, which provides for conditional discharge and expungement of records of certain drug offenses, including possession of marijuana, provides in part:

“. . . Discharge and dismissal under this section shall be without court adjudication of guilt, but a nonpublic record thereof shall be retained by the Department of [Criminal] Law Enforcement solely for the purpose of use by the courts in any subsequent criminal proceedings and in determining whether such person qualifies under this section. Discharge and dismissal hereunder shall not be deemed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime, but it shall be deemed a conviction for the purpose of determining whether a defendant in a subsequent criminal prosecution is a multiple offender. Discharge and dismissal under this section may occur only once with respect to any person.”

On the other hand, Fla.Stat. § 775.084, the habitual offender statute, provides in part:

“(2) For the purposes of this section, the placing of a person on probation without an adjudication of guilt shall be treated as a prior conviction if the [felony] for which he is to be sentenced was committed during such probationary period.”

The latter statute was not passed until after the relevant dates here, and the quoted section does not purport to affect matters outside of § 775.084. Both statutes, however, show the legislature’s view that withholding of adjudication is to be treated as a judgment of conviction for purposes of subsequent punishments, at least where the second crime is committed during the probationary period. In the present case, the second possession was committed during such a period. We need not decide here whether a different result might be reached if the probationary period had expired before the second charge had been brought.

Finally, the sentence imposed here was a general sentence which is impermissible under Darden v. State, Fla.App.2d 1975, 306 So.2d 581. We, therefore, affirm the judgments but remand for resentencing in accordance with Darden, supra, apportioning the sentence between the two convictions.

McNULTY, C. J., and HOBSON and SCHEB, JJ., concur.


text:
    Francisco VEGA and Adelida Vega, his wife, et al., Appellants, v. COSMOPOLITAN MUTUAL INSURANCE COMPANY, Appellee.
    No. 75-1556.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.
    Edmond W. Frank, Miami, for appellants.
    Pyszka, Kessler, Adams & Solomon, Richard M. Gale, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

The appellants, Francisco and Adelida Vega, were the plaintiffs in the trial court. They recovered a verdict in the amount of approximately $400. This appeal is from that judgment.

Errors are assigned upon an evidentiary ruling and claimed prejudicial statements by the attorney for the defendant made at closing argument. The plaintiffs, after receiving the verdict, did not file a motion for a new trial. We conclude that under these circumstances, thes claimed inadequacy of the verdict was not presented to the trial court.

The judgment must be affirmed upon the authority of the rule stated in Morrison v. Bohne, Fla.App.1973, 274 So.2d 896, and authorities cited therein. See also: O’Leary v. Watson, Fla.App.1972, 263 So.2d 643; Malec v. Halter, Fla.App.1968, 216 So.2d 782; Tampa Transit Lines, Inc. v. Smith, Fla.App.1963, 155 So.2d 557.

Affirmed.


author: GRIMES, Judge.

text:
    William C. BOCK, Appellant, v. Joanna Louise BOCK, Appellee.
    Nos. 75-1711, 75-1759.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 1976.
    Guy M. Burns of Jacobs, Robbins & Gay-nor, St. Petersburg, for appellant.
    G. Robert Schultz, St. Petersburg, for appellee.
   GRIMES, Judge.

The husband appeals orders holding him in willful contempt for the failure to pay alimony and denying his petition for modification of the alimony award. He further appeals a subsequent award of attorney’s fees following an appropriate reservation of jurisdiction.

The husband sought to claim an offset against the alimony payments to the extent of one-half of certain expenditures he had made upon a building which was owned by the parties as tenants in common. The court concluded that it would consider these payments as bearing upon the husband’s ability to pay as a defense to the motion for contempt, but held that the court had no jurisdiction to actually set off the purported expenditures against the claim for alimony. While we would not go so far as to say that the court had no jurisdiction to impose a setoff against alimony, the facts of this case fall far short of establishing the “compelling equitable criteria” which would permit a setoff to be made against the husband’s alimony obligations. See Chappell v. Chappell, Fla.App. 4th, 1971, 253 So.2d 281.

There is competent substantial evidence to support the conclusion that the husband had the financial ability to pay the back alimony and that he willfully refused to do so. Once this determination was made, the husband was not entitled to have his claim for modification considered. Feder v. Feder, Fla.App.3rd, 1974, 291 So.2d 641; Martin v. Martin, Fla.App.4th, 1972, 256 So.2d 553.

The husband’s contentions with respect to the attorney’s fees are without merit.

AFFIRMED.

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


author: HOBSON, Judge.

text:
    In the Interest of S. R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 76-665.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 1976.
    Robert E. Jagger, Public Defender, and James G. Gagnon, Asst. Public Defender, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

The Circuit Court of the Sixth Judicial Circuit has certified to this court for our consideration the following question:

IS DISMISSAL WITH PREJUDICE MANDATORY OR DISCRETIONARY WHEN A PETITION ALLEGING DELINQUENCY IS NOT FILED WITHIN 30 DAYS FROM THE DATE THE COMPLAINT WAS RECEIVED BY THE INTAKE OFFICE OR INTAKE OFFICER OF DIVISION OF YOUTH SERVICES?

Florida Statute § 39.05(7) (1975) states:

“On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 30 days from the date the complaint was referred to the intake office.” (emphasis added)

Whereas, Florida Rules of Juvenile Procedure provide in Rule 8.020(b)(5):

“On motions by or in behalf of a child, a petition alleging delinquency or need of supervision may be dismissed with prejudice if it was not filed within thirty days from the date the complaint was received by the Intake Officer.” (emphasis added)

It has often been held that when the word “shall” is used by the legislature it can be directory rather than mandatory. In Fagan v. Robbins, 1928, 96 Fla. 91, 117 So. 863, at page 866, our supreme court approved the following pronunciation by the Supreme Court of Pennsylvania in Becker v. Lebanon, etc., 188 Pa. 484, 41 A. 612:

“ ‘The word “shall” when used by the Legislature to prescribe the action of a court is usually a grant of authority, and means “may,” and even if it be intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the exercise of the power.’ ”

See also Simmons v. State, 1948, 160 Fla. 626, 36 So.2d 207, and State ex rel. Harrington v. Genung, Fla.App.2d 1974, 300 So.2d 271.

The statute quoted above in which the word “shall” is used prescribes the action of a court and therefore is a grant of authority and means “may.” The Florida Constitution, Article V, § 2, provides that the “supreme court shall adopt rules for the practice and procedure in all courts . ..” The statute is procedural rather than substantive and, therefore, is subject to the exclusive rule-making power of our supreme court. See State v. Garcia, Fla.1969, 229 So.2d 236.

In answer to the certified question: Dismissal with prejudice is discretionary when a petition alleging delinquency is not filed within 30 days from the date the complaint was received by the intake office or intake officer of the Division of Youth Services.

McNULTY, C. J., and BOARDMAN, J., concur.


text:
    Charles BRITTON, Appellant, v. STATE of Florida, Appellee.
    No. Z-316.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1976.

      H. Randolph Fallin, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   SMITH, Judge.

In Berry v. State, we held “the totality of all of the circumstances” shown gave investigating officers probable cause to arrest and search, without warrants, four occupants of a parked car from which the odor of burning marijuana escaped through an open window. The issue here is application of the “plain smell” principle to dwellings as justification for arrest of those within.

Patrolling a Jacksonville neighborhood to investigate reports of a prowler, officers Hoffecker and Cook approached a house trailer after 10:00 p. m. to warn the occupants. Two automobiles were parked outside. Music could be heard from within. In response to officer Cook’s knock on the door, a voice inside inquired “Who is it?” Cook replied, “Police,” and appellant Brit-ton opened the door a few inches. Both officers then smelled the emanating odor of burning marijuana. Britton said “Just a minute” and began to close the door, but officer Cook grabbed the door and arrested Britton. After the officers mounted the outside steps and as they crossed the threshold, they saw in the trailer a substantial quantity of marijuana and two other persons, whom they also arrested. Following denial of his motion to suppress the marijuana as evidence, Britton pleaded nolo contendere to possession of the contraband and appealed from the judgment and sentence.

The reasonableness of the marijuana seizure depends on the validity of the arrest, for it was pursuant and incidental to Brit-ton’s arrest that the officers mounted the steps and entered the trailer to seize contraband which became visible to them at the threshold. Mixon v. State, 54 So.2d 190 (Fla.1951); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The State has not urged that the episode is explicable independently of the arrest, as a search based on probable cause and a seizure justified by exigency. In fact, the arrest brought the officers to and across the threshold from which the marijuana was visible, and it is that intrusion which must be justified by the arrest.

Absent a judicial warrant, exigency. or other exceptional circumstances, the Fourth Amendment protects and makes effective a citizen’s “reasonable expectation of privacy.” A warrantless incursion into a'citizen’s home is therefore subject to our most critical examination. Behind the door of his home a citizen has an expectation of privacy far surpassing his similar interest in his driveway, front porch or other parts of the curtilage. An automobile is not a home, but a man’s house trailer is his castle.

Britton’s arrest was predicated entirely on the smell of burning marijuana wafting from the trailer. Before his arrest, he Was not seen in possession of any marijuana and the officers did not know how much marijuana — one cigarette or more — was in the trailer. They did not know Britton’s identity or whether he owned or was merely visiting the house trailer. They did not know how many persons were inside the trailer, nor their identity and relationship to ■ Britton.

The precise issue before us, therefore, is whether Britton’s presence at the door of the trailer where marijuana was being smoked was probable cause to believe that he was smoking it. “A defendant has constructive possession of contraband,” it is said, “when he has knowledge of its presence coupled with his ability to maintain control over it or reduce it to his physical possession.” Porter v. State, 302 So.2d 481, 483 (Fla.App. 3d, 1974); Spataro v. State, 179 So.2d 873, 877 (Fla.App. 2d, 1965). We decline to presume that all inhabitants and guests in a private home are in control and constructive possession of marijuana being smoked by one or merely some of them. Britton’s movement to close the door once opened betrayed his consciousness that marijuana was in the place, but hardly was additional evidence of his possession of it. The officers’ sense of smell reliably told them that marijuana was being consumed within, but it could not and did not identify Britton or any other occupant as a misde-meanant or felon. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); United States v. Connolly, 479 F.2d 930, 936 (9th Cir. 1973):

“Even certain knowledge that contraband is within a dwelling does not constitute probable cause to arrest whoever happens to be inside.”

We therefore distinguish Berry v. State, supra, because a greater justification is required for a warrantless intrusion into the privacy of a home than for a similar intrusion into an automobile, and because “the totality of all of the circumstances” in Berry was of an entirely different import. There a car containing four occupants was parked by the road after midnight, when 15 to 20 other persons had been discovered in the area smoking marijuana. The smell of marijuana at the open window gave the officers reason to believe that, as the presence of the car at that time and place was purposeful and the purpose was smoking pot, so also the occupants’ presence then and there was for that purpose. A correlation of circumstances in Berry gave rise to probable cause to arrest the occupants. That was lacking here. This seizure was the fruit of Britton’s unlawful arrest, and the evidence so taken should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1961).

REVERSED.

RAWLS, Acting C. J., and McCORD, J., concur.

      . 316 So.2d 72, 73 (Fla.App. 1st, 1975).

      . Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 587 (1967) (concurring opinion).

      .See United States v. Magana, 512 F,2d 1169 (9th Cir. 1975), cert. den., 423 U.S. 826, 96 S.Ct.
      42, 46 L.Ed.2d 43.

        . See State v. Detlefson, 335 So.2d 371 (Fla.App. 1st, 1976).

      . Preston v. United States, 376 U.S. 364, 366-67, 84 S.Ct. 881, 883, 11 L.Ed.2d 777, 780 (1964); Cooper v. Calif., 386 U.S. 58, 59, 87 S.Ct. 788, 790, 17 L.Ed.2d 730, 732 (1967).


text:
    Cecilia STEINHAUER, Appellant, v. James L. STEINHAUER, Appellee.
    No. 75-1224.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1976.
    Rehearing Denied Sept. 9, 1976.

      Sam E. Murrell, Jr., of Sam E. Murrell & Sons, Orlando, for appellant.
    No appearance for appellee.
   PER CURIAM.

Wife appeals from final judgment and subsequent Order Amending Final Judgment in a dissolution of marriage case. Appellant argues several points involving child custody and the award of a special equity to the husband in the former marital home. We are unable to determine the merit of this appeal because appellant does not include in the record on appeal a transcript of testimony heard by the trial judge. The record as presented is too sparse to afford a basis for any disturbance of the chancellor’s findings, which we receive with a presumption of correctness. Ledee v. Ledee, 321 So.2d 446 (Fla. 3d DCA 1975).

It is the responsibility of an appellant to provide the appellate court with an adequate record of the evidence and proceedings below which are essential to a just determination of the issues. Stearns v. City of Titusville, 246 So.2d 641 (Fla. 4th DCA 1971). Without a sufficient record, the appellate court may not properly consider the points on appeal and must affirm the judgment of the lower court. Hall v. Bass, 309 So.2d 250 (Fla. 4th DCA 1975); Pierson v. Sharp, 283 So.2d 880 (Fla. 4th DCA 1973). It may be added that the recollections of counsel as to what was said and done in chancery are no substitute on appeal for a certified transcript of the proceedings. Haller v. Santona Land Corp., 275 So.2d 591 (Fla. 1st DCA 1973); Pryor v. Pryor, 274 So.2d 242 (Fla. 1st DCA 1973).

Accordingly, we have no option but to affirm the decisions of the chancellor.

Affirmed.

WALDEN, CROSS and ALDERMAN, JJ., concur.


author: ALDERMAN, Judge.

text:
    STATE of Florida, Appellant, v. Shirlie GERVIN, Appellee.
    No. 76-591.
    District Court of Appeal of Florida, Fourth District.
    July 23, 1976.
    Rehearing Denied Sept. 8, 1976.

      Philip S. Shailer, State’s Atty., and Linda A. Naze, Asst. State’s Atty., Fort Lauder-dale, for appellant.
    Warner S. Olds, Public Defender, and William W. Herring, Asst. Public Defender, Fort Lauderdale, for appellee.
   ALDERMAN, Judge.

This is an interlocutory appeal by the State of Florida from an order granting defendant’s motion to suppress twenty-eight packets of heroin and certain narcotic paraphernalia.

The police obtained a warrant to search a building in Hollywood known as “Tony’s Bar.” When the officers arrived at the bar they announced that they had a search warrant and advised all present to “freeze.” Defendant, who was a customer in the bar, was requested to move over to the wall. As defendant responded, one of the officers noticed an eyeglass case in her left hand and observed her drop the case. The case was retrieved by the officer, examined, and found to contain heroin. As a result of the discovery the defendant was arrested; after her arrest her purse was searched and narcotic paraphernalia was found.

In its order granting defendant’s motion to suppress, the trial judge held the search warrant to be invalid because it was based on an insufficient affidavit. The trial judge further held that since it was an illegal search of Tony’s Bar which resulted in the defendant abandoning her eyeglass case, the heroin found therein by the police must be suppressed as “fruit of the poisonous tree.” Also, because the defendant was not validly arrested, the search of her purse was held to be improper.

We have examined the affidavit upon which the. search warrant was based. In our opinion this affidavit establishes probable cause for the issuance of a search warrant to search Tony’s Bar. The police therefore were lawfully in the Bar when defendant was observed dropping the eyeglass case. When heroin was found in the case there was probable cause to arrest the defendant, and the subsequent search of defendant’s purse was a valid search incident to her arrest. The trial judge erred in granting defendant’s motion to suppress.

Reversed and remanded.

WALDEN, and DOWNEY, JJ., concur.

      . The facts establishing probable cause for the issuance of the search warrant included the following.
      1. On October 24, 1975, subsequent to an initial communication from a confidential informant at which time the informant revealed that he had (on October 23, 1975) observed heroin trafficking at the location in question, Affiant accompanied the confidential informant to Tony’s Bar;
      2. On October 24, 1975, the confidential informant never leaving the sight of Affiant, the detective directly observed and overheard said informant’s purchase of what was subsequently determined to be heroin;
      3. Later on October 24, 1975, Affiant accompanied the confidential informant back to Tony’s Bar where the informant was personally observed by the detective to make another purchase of heroin, Affiant and said informant being in the same vehicle during the buy;
      4. On October 25, 1975 Affiant again accompanied the confidential informant to Tony’s Bar. In the immediate presence of the detective, the confidential informant purchased two packets of heroin. This buy also went down while Affiant and the informant were in the same vehicle, Affiant being privy to the entire conversation;
      5. On October 26, 1975, Affiant again returned to Tony’s Bar with the confidential informant, where the detective again observed and overheard said informant’s purchase of three more packets of heroin.


author: McNULTY, Chief Judge.

text:
    AVAILABILITY, INC., Appellant, v. Paul W. RILEY, Appellee.
    No. 75-1462.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1976.

      Timothy A. Johnson, Jr., of Johnson, Blakely & Pope, P. A., Clearwater, for appellant.
    Hugh E. Reams of Kiérnan & Reams, St. Petersburg, for appellee.
   McNULTY, Chief Judge.

Plaintiff/appellant Availability, Inc. sought herein to enforce a covenant not to compete. It appeals from an injunction which, while entered in its favor, was limited in its geographic scope to an area less than that contemplated by the restrictive covenant sued on. We reverse.

Appellant is a Florida corporation licensed to operate a private employment agency. It did approximately 66.6% of its business in Hillsborough County, 17.6% in Pinellas County, 6.4% in Polk County, 5% in Sarasota County and the remainder in Lake, Pasco, Hernando, Manatee, Highlands and Orange Counties.

Appellee Riley was employed by appellant from September 1971 until March 7, 1975 when he resigned. His primary duty was to place job applicants to available positions with employers; and most of ap-pellee’s placements (72%) were with employers in Hillsborough County, the headquarters of appellant corporation, while 13% of his, placements were in Pinellas, 4% in Polk and 11% in Sarasota and Manatee Counties.

After his resignation, Riley applied for an employment agency license and for an employment agent’s license in Pinellas County. Appellant filed this action to restrain him and fully to enforce the restrictive covenant.

The restrictive covenant sued on provides in material part as follows:

“The Counselor/Manager [appellee] further agrees that upon the termination of employment for any cause whatsoever, that he will not engage in the same or similar business to wit, the business of a private employment agency or personnel consultant directly or indirectly as an employer, employee, . for a period of 24 months from the date of termination of employment, within a radius of 100 miles from . . Tampa, Florida.”

Following a non jury trial the trial court found that: (a) the employment agreement entered into between the parties “is a valid, binding and enforceable contract which is tainted neither by fraud nor deceit”; (b) that the president of appellant corporation and appellee Riley were “skilled, trained and knowledgeable, and there was a valid meeting of minds concerning the terms and conditions of the contract”; and (c) that Riley “is a skilled and learned man who is otherwise well able to support himself and his family.” Nevertheless, the court determined that “the covenant not to compete in the case at bar does constitute a hardship” upon Riley and that the geographical limitations of the covenant not to compete are “unconscionable and unenforceable in that they are supported neither by fact nor necessity.” He thereupon enjoined Riley only from engaging in business in Hillsborough County. We can’t agree.

First of all, § 542.12(2), F.S.1975, and its predecessors during the times material herein, provides in pertinent part that:

“. . . [0]ne who is employed as an employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area so long as such employer continues to carry on a like business therein. Said agreements may, in the discretion of a court of competent jurisdiction be enforced by injunction.”

Accordingly, where noncompetitive agreements have been shown to be reasonable, they have been consistently upheld by the Florida courts. In determining the reasonableness of such an agreement the courts first of all, as dictated by the statute, consider the expressed limitations as to time and geographical area. Additionally, the courts employ a balancing test to weigh the employer’s interest in preventing the competition against the oppressive effect on the employee.

Here, with respect to time limitations, appellee does not contend, nor did the trial court determine, that 24 months’ restriction of activity is an unreasonable length of time. With respect to geographical limitations, even if it be said that the restricted 100 mile radius from Tampa, in Hillsborough County, would be unreasonable, we think it would be unreasonable to deny that Pinellas, adjacent to Hillsbor-ough, ought be included in the restriction in view of the fact that approximately 85% of the appellant’s business is in Hills-borough and Pinellas Counties and approximately the same percentage of appellee Riley’s business activities while he was employed by appellant was in those two counties. Pinellas County, at least, ought to have been included in the injunction.

With respect to weighing the employer’s interest against a potential oppressive effect on the employee, the trial court did not find, and the record would not support a conclusion, that there would be an imbalance. To the contrary, the court expressly found, and it is supportable, that Riley “is otherwise well able to support himself and his family.” How, then, is he unduly restricted or oppressed?

The aforequoted statute and the cases, as we read them, give discretion to the courts to construe the reasonableness of a restrictive covenant on its own terms— not discretion to rewrite it so as to be reasonable in other respects. The covenant here was freely entered into by “knowledgeable” men and is not unreasonable on its face. From the findings of the trial court as to the facts, and from the record, it was an abuse of discretion to construe it as being unreasonable in its operative effect.

In view of our disposition hereof, Riley’s cross-appeal assailing the award of attorney’s fees to appellant as provided for in the employment contract is without merit.

Accordingly, the judgment appealed from insofar as it enjoins appellee Riley only from engaging in the business of an employment agency in Hillsborough County should be, and it is hereby, reversed; in all other respects it is affirmed and the cause is remanded for further proceedings not inconsistent herewith.

Affirmed in part, reversed in part.

HOBSON and SCHEB, JJ., concur.

      . See Foster and Company, Inc. v. Snodgrass (Fla.App.2d, 1976), 333 So.2d 521.

      . See Miller Mechanical, Inc. v. Ruth (Fla.1974), 300 So.2d 11.


text:
    Steven W. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 75-1301.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1976.

      Jack 0. Johnson, Public Defender, and Thomas W. Garrard, Sp. Asst. Public Defender, Lake Wales, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Thomas appeals the denial without evi-dentiary hearing of his RCrP 3.850 motion for post-conviction relief.

In his motion appellant alleged that when he first appeared before the trial court he informed the judge that he was seventeen years old and had never been married. He alleged that he informed the court that his parents’ address was: “Mr. and Mrs. James E. Thomas, 123 N. Linville, Westland, Michigan.” Nevertheless, he said, the notice to parent required by § 925.-07, F.S. 1973, was sent by certified mail to “Catherine Thomas, Westland, Mich.” and was returned for insufficient address. Appellant also alleged that no further effort was made to notify his parents. The trial court denied the motion on the grounds that the record “conclusively” showed that appellant was entitled to no relief. We disagree and remand for an evidentiary hearing.

The record in fact shows that a notice was sent by certified mail to “Mrs. Catherine Thomas, Westland, Michigan,” and that the letter was returned stamped “unknown” and “insufficient address.” Furthermore, the record is silent as to whether any further effort was made to notify appellant’s parents. The transcript of the first hearing during which appellant alleges he provided the court with his parents’ complete correct address is not included at all. Under these circumstances the trial court erred in denying appellant’s motion without an evidentiary hearing.

In the first place, the court’s burden of notifying a minor’s parents is not satisfied merely by a single attempt to contact the defendant’s parents by means of a certified letter when it is returned “unknown” or for similar reasons.

Secondly, nothing in the record indicates that the alternative to notice to a parent, as provided for by the statute, was utilized. It may be that at the evidentiary hearing the state will be able to show that the statutory alternative was met, that additional and sufficient effort was made to give notice or that appellant’s parents had actual notice. But, absent that, appellant is entitled to a new trial.

Reversed and remanded for further proceedings not inconsistent herewith.

McNULTY, C. J., and GRIMES and SCHEB, JJ., concur.

      . On direct appeal appellant’s conviction for second degree murder was affirmed by this court in a decision upholding the sufficiency of the evidence. Thomas v. State (Fla.App.2d 1974), 293 So.2d 88.

      . The state argues that this point should have been raised on direct appeal and could not be raised on a RCrP 3.850 motion for post-conviction relief. This contention is clearly without merit. E. g., Mitchell v. State (Fla.App.2d 1975), 309 So.2d 558.

      . Cf. Collins v. Wainwright (Fla.1962), 146 So.2d 97. Also see Warren v. State (Fla.App. 1st, 1972), 266 So.2d 114.

      . Section 925.07 requires notice to “any friend or relative designated by the minor” if parents are unknown.

      . See Williams v. State (Fla.App.2d, 1974), 297 So.2d 67.


text:
    Lester Lamon PAYTON, Appellant, v. STATE of Florida, Appellee.
    No. AA-89.
    District Court of Appeal of Florida, First District.
    Aug. 30, 1976.
    Ben W. Thompson, Jr., of Thompson & Gilleland, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Donald K. Rudser, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We have considered the briefs, record, and oral arguments and find there is competent, substantial evidence to support the jury’s verdict and the judgment of the trial court.

Affirmed.

RAWLS, Acting C. J., McCORD, J., and WARREN, LAMAR, Associate Judge, concur.


author: MILLS, Judge:

text:
    Louis JONES, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. BB-133.
    District Court of Appeal of Florida, First District.
    Aug. 30, 1976.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard L. Wilson, Asst. Atty. Gen., for appellee.
   MILLS, Judge:

A jury found Jones guilty of breaking and entering a dwelling house with intent to commit grand larceny, robbery, sexual battery and assault and battery. He contends that the trial court erred in denying his motion for a change of venue, in refusing a requested instruction, and in deferring adjudication of guilt and imposition of sentence from day to day and term to term on the crime of assault and battery.

The record reflects that Jones received a fair and impartial trial by a panel of impartial jurors. The trial court did not abuse its discretion in denying Jones’ motion for a change of venue. Dobbert v. State, 328 So.2d 433 (Fla.1976).

Jones requested that the trial court charge the jury that “in order to establish identity by use of fingerprints, the prosecutor must show that the fingerprints of the accused could only have been made at the time the crime was committed.” The court denied the request. Although the requested charge accurately states the law, the court did not err in denying it, because it properly gave the jury charge 2.14, circumstantial evidence, Florida Standard Jury Instructions In Criminal Cases. We must point out, however, that the record furnished us would not have been sufficient for us to determine whether the court erred.

The trial court did err in deferring adjudication and sentencing on the crime of assault and battery from day to day and term to term. McArthur v. State, 330 So.2d 548 (Fla. 1st DCA 1976). Jones is entitled to have, all offenses of which he was found guilty disposed of expeditiously.

The judgments and sentences on the first three crimes are affirmed. The deferral of adjudication and sentence on the crime of assault and battery is reversed and this case is remanded with directions to adjudicate and make appropriate disposition of this crime.

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


text:
    Harvey RANDOLPH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-1638.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1976.

      Jack 0. Johnson, Public Defender, Bar-tow, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Randolph appeals a judgment and sentence for breaking and entering with intent to commit a misdemeanor.

Appellant was charged by information with breaking and entering the home of Margie Lovett on March 29, 1975, with intent to commit petit larceny. In response to a motion by appellant the state filed a bill of particulars stating that the offense occurred “between the hours of 10:00 p. m. on March 29,1975, and 4:00 a. m. on March 30, 1975.”

Testimony at trial showed that appellant was caught burglarizing Mrs. Lovett’s home while she was at the laundromat. Mrs. Lovett testified that the break-in occurred on the night of. March 28. The arresting officer’s testimony was unclear as to the date of the offense. Another police officer recalled interrogating appellant around 1:00 a. m. on March 29. The jury was instructed that the exact date of the crime had been made an issue and as a result the state had the burden or proving beyond a reasonable doubt that the crime occurred between 10 p. m. March 29 and 4:00 a. m. March 30.

After the jury retired, it requested instructions as to whether or not the bill of particulars was controlling as to the date of the offense. The court instructed the bailiff to tell the jury that they would have to make the determination for themselves based upon the instructions they had received. The bailiff went into the jury room and closed the door. After he returned, appellant’s counsel challenged the procedure, and the bailiff was questioned as to what he told the jury. He replied that he told the jurors “something to the effect" that the judge said they would have to observe the dates on the documents presented in evidence and “it was up to them to decide whether or not the date made any difference.”

Appellant objected that the court should have personally repeated the instructions regarding the bill of particulars that it had given the jury. The court noted that appellant’s counsel had not objected to the procedure when the court ordered the bailiff to convey his answer. Counsel replied that he did not object because he believed he would be allowed to hear what the bailiff told the jurors; however, the bailiff had closed the door of the jury room when he went in to deliver the instructions.

Shortly after receiving the reply the jury found appellant guilty as charged. This timely appeal followed.

The procedure that the trial court followed in answering the jury’s request for a clarification of the instructions was improper. The court’s response to the question should have been given in open court in the presence of appellant, his counsel, and the assistant state attorney. RCrP 3.410. Florida Statute § 918.07, forbids communication concerning the trial between the officer in charge of the jury and the jurors. In Slinsky v. State, Fla.App.4th 1970, 232 So.2d 451, the trial court summarily denied a jury’s request to have testimony read back without opening court or advising either side of the request. The Fourth District reversed, finding that the procedure was a violation of the defendant’s rights and that it could not determine what effect the summary denial had on the jury’s decision.

In Holzapfel v. State, Fla.App.3d 1960, 120 So.2d 195, the bailiff answered a question that the jurors asked. It was unclear exactly what the jury asked. The district court reversed, holding that whether or not the bailiff gave a legally correct answer was irrelevant since the court alone was entitled to instruct the jury on the law and must do so in the presence of the defendant.

While the trial court may have intended simply to decline to answer the jury’s question, the answer conveyed by the bailiff could be construed as an instruction that the jury could rely on either the information or bill of particulars and decide whether or not the proof of the date was necessary. It was clearly improper for instructions to be conveyed by the bailiff.

We recognize that the First District has held a similar procedural error to be harmless. Ennis v. State, Fla.App.1st 1974, 300 So.2d 325. Ennis involved an instruction sent through the bailiff that a certain fact was immaterial. There was no uncertainty as to what was told the jury. Given the particular circumstances here we cannot view the error as harmless since the jury’s inquiry as to whether or not they were bound by the bill of particulars indicates that there was a question as to whether or not the state had sustained its burden of proving the date of the offense. In response to a jury inquiry concerning a material issue the trial court sent the bailiff to deliver what amounted to an additional instruction. The effect this procedural violation had on appellant’s rights is apparent. We are compelled to reverse for a new trial.

In view of our decision on this point, we do not reach the merits of the other points raised by appellant.

REVERSED and REMANDED for a new trial.

HOBSON, Acting C. J., and GRIMES and SCHEB, JJ., concur.

      . We note that the answer to the jury’s inquiry appears to conflict with the supreme court’s decision in State v. Beamon, Fla.1974, 298 So.2d 376.


text:
    Samuel Lloyd WHITMER and Nationwide Mutual Fire Insurance Company, a corporation, Appellants, v. Elbert R. PHILLIPS and Jean Phillips, his wife, Appellees.
    No. Z-441.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1976.
    Noah H. Jenerette, Jr., of Boyd, Jener-ette, Leemis & Staas, Jacksonville, for appellants.
    Carl D. Dawson of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for ap-pellees.
   PER CURIAM.

AFFIRMED.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


text:
    Jorge SANCHEZ, a minor, by his father and next friend, et al., Appellants, v. The TRAVELERS INDEMNITY COMPANY OF AMERICA, etc., Appellee.
    No. 76-932.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 1976.
    Kuvin, Klingensmith & Lewis, Coconut Grove, for appellants.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This appeal seeks reversal of an order denying the plaintiffs in the trial court equitable distribution.

The appellee has confessed error, and the order under review be and the same is hereby reversed upon the authority of Williams v. Gateway Insurance Company, Fla. 1976, 331 So.2d 301.

Therefore, the order denying equitable distribution is reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded, with directions.

      . It is, of course, obvious that this case was not available to the trial court at the time of the entry of the order under review.


text:
    L. F., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1969.
    District Court of Appeal of Florida, Third District.
    Sept. 2, 1976.
    Phillip A. Hubbart, Public Defender, and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The State having confessed error in this case, the adjudication of delinquency heretofore entered in this cause by the trial court on November 18, 1975 be and the same is hereby reversed, with directions to discharge the appellant.


text:
    John P. McNAMARA, Appellant, v. A. R. COOK, Superintendent, Glades Correctional Institution, and Paul Coburn, Classification Spec., Lake County Correctional Institution, Appellees.
    No. 75-1474.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1976.
    Rehearing Denied Sept. 9, 1976.
    John P. McNamara, in pro per.
    Robert L. Shevin, Atty. Gen., Tallahassee, by Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellees.
   ON PETITION FOR REHEARING

PER CURIAM.

After we filed our opinion and judgment in this cause, the Supreme Court of the United States rendered two decisions which cause us to modify that opinion.

Montanye v. Haymes, opinion filed June 25, 1976, - U.S. -, 96 S.Ct. 2543, 49 L.Ed.2d-, reversed a circuit court judgment that had held the Due Process Clause of the Fourteenth Amendment required a hearing before a prisoner could be transferred from one New York state prison to another for disciplinary reasons. The Court said:

“We therefore disagree with the Court of Appeals’ general proposition that the Due Process Clause by its own force requires hearings whenever prison authorities transfer a prisoner to another institution because of his breach of prison rules, at least where the transfer may be said to involve substantially burdensome consequences. As long as the conditions or degree of confinement to which the prisoner is subjected are within the sentence imposed upon him and are not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight. The Clause does not require hearings in connection with transfers whether or not they are the result of the inmate’s misbehavior or may be labeled as disciplinary or punitive.” - U.S. at -, 96 S.Ct. at 2547.

Because the Due Process Clause required no hearing, none was necessary unless New York law required one. Since no New York statute made a hearing mandatory, all transfers were discretionary. Therefore the New York prison authorities were not required to hold a hearing before transferring a prisoner, even for punitive reasons.

Meachum v. Fano, opinion filed June 25, 1976, - U.S. -, 96 S.Ct. 2532, 49 L.Ed.2d -, involved (among other persons) three Massachusetts prisoners who were transferred to a maximum security prison that had substantially less favorable living conditions than the prison from which they had come. Although the transfers came after an administrative hearing, the United States District Court ruled that the hearing was inadequate because the authorities heard evidence adverse to the prisoners outside the presence of those prisoners. The circuit court of appeals affirmed, but the Supreme Court reversed:

“. . . we cannot agree that any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause. The Due Process Clause by its own force forbids the State from convicting any person of crime and depriving him of his liberty without complying fully with the requirements of the Clause. But given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and to subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution. The Constitution does not require that the State have more than one prison for convicted felons; nor does it guarantee that the convicted prisoner will be placed in any particular prison if, as is likely, the State has more than one correctional institution. The initial decision to assign the convict to a particular institution is not subject to audit under the Due Process Clause, although the degree of confinement in one prison may be quite different from that in another. The conviction has sufficiently extinguished the defendant’s liberty interest to empower the State to confine him in any of its prisons.
“Neither in our view, does the Due Process Clause in and of itself protect a duly convicted prisoner against transfer from one institution to another within the state prison system. Confinement in any of the State’s institutions is within the normal limits or range of custody which the conviction has authorized the State to impose. That life in one prison is much more disagreeable than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules.
“Our cases hold that the convicted felon does not forfeit all constitutional protections by reason of his conviction and confinement in prison. He retains a variety of important rights that the courts must be alert to protect. See Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974), and cases there cited. But none of these cases reaches this one; and to hold as we are urged to do that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.
“Transfers between institutions, for example, are made for a variety of reasons and often involve no more than informed predictions as to what would best serve institutional security or the safety and welfare of the inmate. Yet under the approach urged here, any transfer, for whatever reason, would require a hearing as long as it could be said that the transfer would place the prisoner in substantially more burdensome conditions that he had been experiencing. We are unwilling to go so far.” - U.S. at -, 96 S.Ct. at 2538.

As in Montanye v. Haymes, state law in Meachum v. Fano made transfers discretionary, and prisoners had no right to remain in certain prisons “defeasible only upon proof of specific acts of misconduct.” - U.S. at -, 96 S.Ct. at 2539.

“A prisoner’s behavior may precipitate a transfer; and absent such behavior, perhaps transfer would not take place at all. But, as we'have said, Massachusetts prison officials have the discretion to transfer prisoners for any number of reasons. Their discretion is not limited to instances of serious misconduct. As we understand it no legal interest or right of these respondents under Massachusetts law would have been violated by their transfer whether or not their misconduct had been proved in accordance with procedures that might be required by the Due Process Clause in other circumstances. Whatever expectation the prisoner may have in remaining at a particular prison so long as he behaves himself, it is too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason or for no reason at all.
“Holding that arrangements like this are within reach of the procedural protections of the Due Process Clause would place the Clause astride the day-to-day functioning of state prisons and involve the judiciary in issues and discretionary decisions that are not the business of federal judges. We decline to so interpret and apply the Due Process Clause. The federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the States.” - U.S. -, 96 S.Ct. at 2540.

Because the Due Process Clause requires no hearing before a Florida state prisoner is transferred and because no Florida statute places any restrictions on the transfer of state prisoners, the Florida prison authorities have the discretion to make transfers of such prisoners. We therefore recede from the opinion we filed in this cause on June 18, 1976, insofar as that opinion held that a Florida state prisoner must be afforded a hearing before he is transferred from one institution to another.

In addition, a rereading of Wilwording v. Swenson, 502 F.2d 844 (8th Cir. 1974), impels us to recede from the portion of the opinion of June 18th dealing with the second appellate question (that concerning purportedly improper notations on appellant’s prison record which allegedly had an adverse effect on appellant’s consideration for parole).

We had thought the Wilwording case supported the proposition that prison authorities were required to give a prisoner an opportunity to be heard before they might place on the prisoner’s record notations affecting the prisoner’s consideration for parole. Upon further consideration we find we were mistaken. Therefore, we agree with the trial court’s conclusion that appellant’s petition was without merit.

If a prisoner is denied parole after consideration, Section 947.17(7), Florida Statutes 1975, requires that the offender be notified of the reasons for such denial. Here, appellant alleges there were some conclusionary statements and recommendations noted on his record jacket such as “failure to adjust; recommend no parole, no work release, no other benefits.” He then alleges those notations resulted in a denial of parole. His conclusion is not supported by any documentary evidence attached to the petition. In our judgment that naked allegation is insufficient to support the issuance of a writ of habeas corpus. Should we reverse the order denying appellant’s petition, we would open the door to every prisoner in the Division of Corrections to seek habeas corpus every time an adverse notation is made in his file by simply alleging that it precluded his parole.

Accordingly, the petition for rehearing is granted and we recede from and withdraw our opinion filed June 18, 1976, and affirm the order appealed from.

MAGER, C. J., and DOWNEY and ALDERMAN, JJ., concur.