author: PER CURIAM. ENGLAND, C. J., and OVERTON, J.,

text:
    John Wallace LeDUC, Appellant, v. STATE of Florida, Appellee.
    No. 47953.
    Supreme Court of Florida.
    Nov. 22, 1978.
    Brooks Taylor, Crestview, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is a capital case brought to us to review two sentences of death imposed by the Circuit Court of Okaloosa County, Florida. John Wallace LeDuc pleaded guilty to the rape and murder of a nine-year-old girl. A jury, convened to recommend sentence to the trial court on the two criminal charges, unanimously recommended a death penalty as to both. The trial judge independently sentenced LeDuc to death on both charges, and the convictions and sentences were properly brought to us for review.

After LeDuc’s appeal was filed in this Court, we relinquished jurisdiction to the trial court to prepare written findings as to the aggravating and mitigating factors which bore on the court’s decision to impose the death penalty. The trial judge declined to provide more express findings than appeared in his original pronouncement at the time of sentencing, except to specifically note that none of the mitigating factors enumerated by the Florida Statutes “or otherwise” were present. The original sentence order was silent with respect to mitigating circumstances.

LeDuc’s counsel offers only one alleged infirmity with respect to LeDuc’s convictions and sentences — the failure of the trial judge to certify LeDuc as a mentally disordered sex offender under Chapter 917, Florida Statutes (1975). He suggests that the trial judge abused his discretion in failing to certify LeDuc, relying on our decision in Dorman v. State, 279 So.2d 854 (Fla.1973).

During oral argument before this Court, we ascertained that the sentencing jury and the trial court had neither seen nor considered a series of psychiatric reports prepared in 1961 by the Devereux School of California where LeDuc had been confined and treated for psychiatric disturbances as a youth. On motion of LeDuc’s counsel after argument, we again relinquished jurisdiction to the trial court for consideration of this report in connection with LeDuc’s motion for certification. At a hearing conducted for that purpose the trial judge found nothing in the report to change his original denial of certification, and he again returned the case to us for review.

We reviewed in detail the test of all psychiatric reports in the record, including two presented by court-appointed psychiatrists prior to LeDuc’s pleas, and we find no basis to conclude that the trial judge abused his discretion in failing to certify LeDuc under the statute. See Huckaby v. State, 343 So.2d 29 (Fla.1977).

Even though LeDuc’s counsel has not challenged the legal sufficiency of Le-Duc’s convictions and sentences on any basis, we are obligated by law and rule of this Court to ascertain whether they are proper. As regards the convictions, our scope of review is obviously limited by the fact that LeDuc pleaded guilty to both charges against him, on the advice of counsel, in exchange for a recommendation of mercy from the prosecutor. The pleas were intelligently made, and the trial court’s inquiry as to their voluntariness and the underlying factual foundations was thorough. We are satisfied that both convictions are legally proper and must stand.

As regards the death sentences which were imposed, our review is channeled by the statute, which requires the advisory jury and the trial judge to evaluate and weigh specific factors enumerated as mitigating and aggravating circumstances. Here the advisory jury heard a summary of the evidence of the crimes, plus an argument by defense counsel to the general effect that LeDuc was mentally disturbed. The prosecutor, in his closing remarks, briefly listed the aggravating circumstances shown by the evidence he had placed in the record and pointed out that no evidence of mitigation had been introduced. Nonetheless, in accordance with his bargain, the prosecutor recommended a life sentence. In final closing argument, defense counsel repeated his argument that no one could have committed so terrible a crime unless he was mentally disturbed.

The jury unanimously recommended the death penalty on both charges. The trial judge did not expressly find any mitigating circumstance to be present or absent, and he essentially relied on the atrocity of the crime as an aggravating circumstance sufficient to warrant imposition of the death penalty.

The primary standard for our review of death sentences is that the recommended sentence of a jury should not be disturbed if all relevant data was considered, unless there appear strong reasons to believe that reasonable persons could not agree with the recommendation. On the record placed before the jury in this case, a recommended sentence of death was certainly reasonable. Indeed, the only data on which a life recommendation could have been made would have had to be grounded on the nonevidentiary recommendation of the prosecutor and the emotional plea of defense counsel.

The trial judge was cognizant at the time of sentencing of the reports of two psychiatrists who interviewed LeDuc to determine his competence to stand trial, although the jury was not apprised of their existence. As earlier noted these reports were rendered prior to acceptance by the court of LeDuc’s guilty pleas. One of the psychiatric reports states the impression that LeDuc “is a very schizoid individual,” but finds “no classical indicia of psychosis.” Each report concluded that appellant was sane at the time of the offense and had sufficient mental capacity to assist counsel with his defense. In each examination LeDuc admitted to previous episodes of criminal conduct. This evidence before the trial judge was insufficient to compel a finding of the existence of the statutory mitigating circumstances related to mental disturbance, i. e., “The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance” [Section 921.141(6)(b)], or “The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired” [Section 921.141(6)(f)].

While admittedly not available to the trial judge at the time of sentencing, additional psychiatric information which might bear upon the enumerated mitigating circumstances was considered by the judge at the time we relinquished jurisdiction for consideration of the report of the Devereux Foundation as bearing on the original Motion to Certify as a mentally disordered sex offender. At the hearing held to consider this additional information the court reviewed not only the Devereux Foundation report but also the reports of the court-appointed psychiatrists as well as certain other evidence presented by the State relative to LeDue’s military service record. It is important to note that at the conclusion of the hearing, the trial judge not only reaffirmed his original ruling upon the motion to certify but he also reaffirmed the sentence of death.

Although this case has had an arduous course through the courts and the articulation of the trial judge’s sentencing considerations does not appear with the clarity we should like to see when Section 921.141 is being applied, nevertheless, a review of the entire proceedings convinces us that the trial judge reasonably found that the capital felonies were especially heinous, atrocious and cruel [Section 921.141(5)(h)] and that he could just as reasonably conclude that no mitigating circumstances were established. The case of State v. Dixon, 283 So.2d 1 (Fla.1973), established that when one or more aggravating circumstances is found, death is presumed to be the proper sentence in the absence of any mitigating circumstances. Accordingly, the judgments of guilt and the sentences of death entered below are affirmed.

It is so ordered.

ADKINS, BOYD, SUNDBERG, HATCH-ETT and ALDERMAN, JJ., concur.

ENGLAND, C. J., and OVERTON, J.,

concur with that part of majority opinion which affirms the judgments of guilt, but dissent from that part which affirms sentences of death.

      . § 921.141(4), Fla.Stat. (1975).

      . § 921.141(3), Fla.Stat. (1975).

      .§ 921.141(4), Fla.Stat. (1975); Fla.R.App.P. 9.140(f).

      .The sentencing order of the trial judge read as follows:
      “You, John Wallace LeDuc, having plead [sic] guilty to the crime of First Degree Murder the Court does hereby adjudge you to be guilty and the Court having heretofore impaneled a jury to return its advisory opinion of either [sic] your sentence should be the death penalty or life imprisonment for your offense of First Degree Murder and the Jury returned the advisory opinion recommending the death penalty for your crime of First Degree Murder the Court now ask [sic] you and your counsel, Honorable Brooks Taylor, what you have to say before sentence is passed and why sentence should not be pronounced upon John Wallace LeDuc.
      “The Court having heard from you and your counsel anything you had to say it is now the finding of this Court as required by law that the facts in your case of First Degree Murder were so aggravating, heinous, atrocious, cruel and of such a sadistic nature performed on a young, minor girl that it is therefore the judgment and sentence of this Court and sentence of the law that you, John Wallace LeDuc, for your said offense be remanded to the custody of the Sheriff of Oka-loosa County, Florida, who for your safekeeping is ordered to deliver you to the State Prison for confinement; whereupon, after the issuance of a death warrant by the Governor of the State of Florida, the Superintendent of the State Prison shall, in accordance with law, cause to pass through your body a current of electricity of such intensity to cause your immediate death, and shall continue the application thereof until you are dead; and may God have mercy on your soul.
      < “This is to advise you that according to law that there will be an automatic review of your conviction and sentence of death by the Supreme Court within sixty days after certification by the sentencing court of the entire record unless there is extended an additional period not to exceed thirty days by the Supreme Court with good cause shown.”
      The sentencing order of the trial judge with respect to the offense of involuntary sexual battery read essentially the same. ■

      . Tedder v. State, 322 So.2d 908 (Fla.1975).

      . The record is replete with evidence suggesting the utter brutality and depravity of the murder, thus amply supporting the trial judge’s finding of an “especially heinous (or) atrocious” crime. § 921.141(5)(h), Fla.Stat. (1975).

      . The Order of the trial judge after the certification hearing states as follows:
      “JUDGE: At this time in considering all these reports, the one the Supreme Court said for me to see, the report from Dr. Phillips and Dr. Sherman, the letters that the state attorney has and all that have been put into evidence without any objection, the Court sees no way to rule at all on this case except that from the Court’s determination John Wallace LeDuc was sane at the time that the Court said he was able to stand trial, sane at the time the two psychiatrists saw him, and according to their opinion was sane at the time that the offense which was committed, was committed. And for that reason the Court’s going to find this matter should be as it sees, affirmed in the action this Court took originally in it; and feels that there is nothing here that would cause this Court to want to have a new trial or feel that a new trial would be of any value in this case, because I feel that everything that went before the jury was proper, that these reports that were submitted later, coupled with the other evidence that was put to the Court before and when we had the inquisition into his sanity, and the psychiatrists’ reports, would all show that this young man was sane and he was not a sexual psychopath. And it is strictly in the province of the jury because he was pled guilty, as I recall, to the offense and it was a matter of a jury being sworn to determine whether he would get life imprisonment or the electric chair, and it was a unanimous verdict of the jury that he receive the death penalty. And the Court took that in consideration and took in consideration the way the offense was committed and has already entered into the record originally the day that we had the sentencing in writing it’s [sic] reasoning for sentencing this young man to death, the death penalty.

        “And the Court did not take it lightly, because this is the ñrst case that this judge has had to sentence a person to the electric chair and the death penalty. And I put my reasoning in then and I do not see any reason for having to enumerate them but it was the brutality and the age of the child and the way the rape-murder was carried out, which the Court feels led the jury to recommend by unanimous verdecí [sic] that the defendant have the death penalty, and which caused this Court to pass on to the defendant the death penalty in this cause, because of the way that the crime was committed and all the circumstances involved therein, which the Court has heretofore entered the special reasoning for the death penalty. And feels that these reports, coupled with all the other evidence put in here, would substantiate the Court’s returning this to the Supreme Court and feeling that there is not enough evidence after considering all these others, to set aside anything that the Court has heretofore determined. And feel it should be remanded to the Supreme Court for their further consideration. And actually the Court feels that the action of the lower court should be affirmed,” (Emphasis supplied)
      Record of Certification Hearing, pp. 13-14.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Peter M. CUMMING, Appellee.
    No. 51925.
    Supreme Court of Florida.
    Nov. 22, 1978.
    Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee and T. Ed Austin, State’s Atty. and Stephen R. White, Asst. State’s Atty., Jacksonville, for appellant.
    Kevin V. Canipelli of Schwartz & Bolinger, Jacksonville, for appellee.
   BOYD, Justice.

This is a direct appeal from the County Court of Duval County, transferred here by the Circuit Court for that County. The trial judge passed directly on the constitutional validity of Section 372.922, Florida Statutes. Pursuant to Article V, Section 3(b)(1), Florida Constitution, we have jurisdiction.

Appellee was charged with unlawful possession of an ocelot. The possession, without a permit, of any wildlife (as defined in the regulations of the Florida Game and Fresh Water Fish Commission) is unlawful under Section 372.922, Florida Statutes. The wildlife is designated as Class I or Class II — this appeal is concerned with Class II: “Wildlife considered to present a real or potential threat to human safety. . .” The statute directs the Commission to further define Class II wildlife in its rules. Regulations to ensure that permits from the Commission are “granted only to persons qualified to possess and care properly for wildlife,” and that wildlife possessed as personal pets “will be maintained in sanitary surroundings and appropriate neighborhoods” are to be promulgated by the Commission.

Rules 16E-5.051 and 5.052, Florida Administrative Code (Florida Game and Fresh Water Fish Commission), are the regulations promulgated by the Commission pursuant to the mandate of Section 372.922, Florida Statutes, for implementing the guidelines of the statute. Rule 16E-5.051 defines Class II wildlife, including ocelots, and lists their scientific or Latin name in parentheses. No unsafe or unsanitary conditions or confinement “in a manner which results in the maltreatment, mistreatment, or neglect of such wildlife” are permitted. Supervision and caution with the wildlife are required as well. Requirements for caging and restrictions on where the wildlife may be exercised are given in the rule. Rule 16E-5.052 leaves sanitation to be carried out in accordance with local, state and federal regulations. Specific caging materials and strength requirements are listed generally and for specific animals in each Class. No requirement that the animals be caged at all, however, is included.

Peter M. Cumming, after a denial of renewal of his permit, was cited by the Commission for possession of an ocelot, Class II wildlife, in an unsafe manner; namely, in an inappropriate neighborhood. He lived in an apartment at the time. One month later, Cumming was charged by information with possession of Class II wildlife without a permit, contrary to Section 372.922, Florida Statutes. He moved to dismiss the information because the statute and the rules implementing it are vague, indefinite, and overbroad. The trial judge, after taking expert testimony, dismissed the information and declared the statute and rules unconstitutional as applied. The state’s appeal to the Circuit Court was transferred here on motion of appellee Cumming. Pursuant to our order temporarily relinquishing jurisdiction, the County Court clarified its reasons for invalidating the statute and rules. The cause is now here for resolution of the constitutional issues.

Appellee finds fault with the statute in that: the wording is too vague to enable one to ascertain what activity is proscribed, and the guidelines for the Commission’s implementation of the statute are too vague and thus unlawfully delegate legislative authority. Appellee faults the rules for failing to provide standards for the granting or denial of permits or for determining what is an appropriate neighborhood. Appellee also charges that the rules fail to provide notice of the proscribed activity in that the use of the Latin name “Leopardus pardalis” to denote ocelots, when experts use the name “Felis pardalis” instead, leaves the rule vague and indefinite.

The state’s argument that Section 372.922, Florida Statutes, enables persons of common intelligence to ascertain whether or not a contemplated act is lawful is supported by the language of the statute. The statute clearly prohibits possession without a permit from the Commission of “any wildlife as defined in this act.” The statute, though lacking a specific definition of the term “wildlife,” provides effective notice of what wildlife is contemplated as necessitating a permit by dividing that wildlife into the two Classes, and then directing that the regulations of the Commission shall further define the types of animals in the Classes.

The purchaser or owner of wildlife is put on notice that a permit will be required from the Commission if the possessed wildlife fits either the Class I or the Class II description and is defined in the regulations as the type of animal included under either Class. The owner is not left to hazard a guess as to whether his animal is unfit to be a personal pet because of its nature, habit, or status, or whether it presents a real or potential threat to human safety; instead, he is directed by the statute to the regulations of the Commission.

Rule 16E—5.051, Florida Administrative Code, specifically defines Class II wildlife as including ocelots. Though the rule includes the scientific or Latin name “Leo-pardus pardalis” in parentheses, it is clear that the general category of “ocelot” is what is sought to be regulated and is, thus, the controlling term. The owner of any of the specifically categorized animals is given a reasonable opportunity to know that a permit from the Commission is required for his animal.

Appellee’s contention over which Latin name—“Felis pardalis” is urged upon us by appellee as the only term that experts understand—correctly denotes ocelots generally, misses the point of the statute. The possible existence of several subspecies of ocelot, due to crossbreeding, does not take those species out of the general category of “ocelot” and place them, for instance, in a “domestic cat” category. To allow such fine distinctions destroys the usefulness of any law of general applicability.

The Court takes note here that Cumming, in possession of an ocelot, apparently received adequate notice from the statute since he obtained a permit for the animal. It was not until he sought renewal of his permit and was refused and later charged with violation of the statute that he found the notice inadequate.

It is our judgment that Section 372.922, Florida Statutes, “uses language sufficiently definite to apprise those to whom it applies what conduct on their part is prohibited.” State v. Wershow, 343 So.2d 605 (Fla.1977). The statute cannot be unconstitutional for that reason.

In the same vein, we find that the statute does not unconstitutionally delegate legislative authority. The statutory guidelines adequately describe the bounds within which the Commission is to promulgate its regulations. Wildlife to be defined by the Commission as Class II is confined to wildlife which presents “a real or potential threat to human safety. . . .” Permits are to be granted by the Commission “only to persons qualified to possess and care properly for wildlife,” as determined by the Commission’s rules and expertise. Additionally, the Commission shall establish what are “sanitary surroundings and appropriate neighborhoods” in which the possessed wildlife must be maintained.

The Commission is not given the authority “to grant approval to one yet withhold it from another, at whim . . , Dickinson v. State, 227 So.2d 36 (Fla.1969). As this Court has said in Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976), quoting from State v. Griffin, 239 So.2d 577 (Fla.1970), “Obviously, the very conditions which may operate to make direct legislative control impractical or ineffective may also, for the same reasons, make the drafting of detailed or specific legislation impractical or undesirable.” Section 372.922, Florida Statutes, deals adequately with just such conditions of impracticality.

The same cannot be said, however, for the rules the Commission promulgated for the issuance of the permits. Rules 16E-5.051 and 5.052, Florida Administrative Code, do not sufficiently define the standards upon which a permit is to be granted or denied. The inadequacy of the rules in addressing the statutory guidelines of Section 372.922, Florida Statutes, leaves the Commission broad discretion to employ any standard, including the statutory guidelines themselves, in issuing the permits. Although the statutory guidelines are adequate to avoid appellee’s charge of unlawful delegation, they are far too vague and over-broad to be suitable as standards for the issuing of permits.

Rule 16E-5.051 does not define what is a “qualified person,” what are “sanitary conditions,” or what constitutes an “appropriate neighborhood.” The rule recites that possessed wildlife be “housed in a safe and sanitary manner as prescribed by the Commission.” Nowhere does the rule prescribe what is a sanitary manner or condition. The only reference to what is an appropriate neighborhood is the restricting of the exercising of the possessed wildlife to the owner’s property or property for which pri- or permission for use has been given the owner. As for a qualified person, one is left to guess whether meeting all or any of the criteria in either of the rules establishes a person as qualified. At best, the rule addresses the proper care of the wildlife and the general caution to be used to protect the public from injury.

Rule 16E-5.052 specifies the caging and fencing requirements for housing the wildlife. The rule, however, contains no mandate that the wildlife be caged. Again, sanitation is mentioned but only by way of incorporating local, state, or federal regulations as the requirements for the wildlife owner. No specific standards on what are sanitary surroundings are stated, and the caging requirements provide no further assistance.

Appellee was cited by the Commission for possessing an ocelot in an unsafe manner, to-wit: an inappropriate neighborhood. Likewise, when the officers from the Commission called at appellee’s apartment in response to his application for renewal of his permit, they informed appellee that he was in an inappropriate neighborhood for possessing an ocelot.

This use by the Commission of the statutory guidelines reaffirms our conclusion that the failure of the Commission’s rules to provide adequate standards for issuing permits has resulted in an unconstitutional application of Section 372.922, Florida Statutes. It is the failure of the Commission to implement through its rules the statute’s guidelines that has left the statute to require “the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . . .” State v. Wershow, supra, quoting from Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934). The issuance of the permits is based on the vague and overbroad standards of “persons qualified,” “sanitary surroundings” and “appropriate neighborhoods.”

It is our judgment that because of this infirmity, Section 372.922, Florida Statutes, cannot be applied constitutionally. Without a valid permit procedure being available to owners of wildlife covered by the statute, no prosecution for lack of a permit is possible. The Commission must remedy its deficient regulations.

The order of the Duval County Court is affirmed in part and reversed in part and remanded for the entering of an order, consistent herewith, to dismiss the cause.

It is so ordered.

ADKINS, OVERTON, HATCHETT and ALDERMAN, JJ., concur.

ENGLAND, C. J., and SUNDBERG, J., concur in the result only.


author: ALDERMAN, Justice. SUNDBERG, Justice,

text:
    STATE of Florida, Appellant, v. Jorge A. RODRIQUEZ, Appellee. STATE of Florida, Appellant, v. Julio A. MELENDEZ, Appellee. STATE of Florida, Appellant, v. Eula Mae SHERROD, Appellee. STATE of Florida, Appellant, v. John W. HARRIS, Appellee. STATE of Florida, Appellant, v. Johnny B. SMITH, Appellee. STATE of Florida, Appellant, v. Bessie L. THOMAS, Appellee. STATE of Florida, Appellant, v. Eddie HUMPHRIES, Appellee. STATE of Florida, Appellant, v. Bessie S. SHORTER, Appellee. STATE of Florida, Appellant, v. Lester BENNETT, Appellee.
    Nos. 52269, 52431, 53129-53135.
    Supreme Court of Florida.
    Nov. 22, 1978.

      Robert L. Shevin, Atty. Gen., Glenn H. Mitchell, West Palm Beach, and Martha J. Cook and William I. Munsey, Jr., Tampa, Asst. Attys. Gen., and Steven C. Henry, Asst. State’s Atty., St. Petersburg, for appellant.
    Richard L. Jorandby, Public Defender, and James R. Merola, Asst. Public Defender, West Palm Beach, for Rodriquez.
    José G. Rodriguez of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for Melendez.
    B. Robert Ohle, St. Petersburg, for Sher-rod.
    Donald R. Odom of Williams & Milton, St. Petersburg, for Harris.
    Joseph S. Rodriguez, St. Petersburg, for Smith.
    Aubrey O. Dicus, Jr., St. Petersburg, for Thomas.
    B. Robert Ohle, St. Petersburg, for Hum-phries and Shorter.
    Larry G. Rightmyer, St. Petersburg, for Bennett.
   ALDERMAN, Justice.

These consolidated cases are before us on direct appeals by the State from orders of the Circuit Court of Palm Beach County and the County Court of Pinellas County. The various defendants were charged with violation of Section 409.325(2)(a), Florida Statutes (Supp.1976), which provides in pertinent part that “[a]ny person who knowingly: (a) [u]ses, transfers, acquires, traffics, alters, forges, or possesses ... a food stamp ... in any manner not authorized by law is guilty of a crime . [Emphasis added.]” The trial courts dismissed the charges against the defendants because they found the language “in any manner not authorized by law” to be unconstitutionally vague. We conclude that Section 409.325(2)(a) is not unconstitutional, and we reverse.

Legislative enactments are presumed valid. When reasonably possible and consistent with the protection of constitutional rights, this Court will resolve all doubts as to the validity of a statute in favor of its constitutionality. Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976). The test to determine whether a statute is unconstitutionally vague is whether men of common understanding and intelligence must necessarily guess at its meaning. To meet the constitutional challenge of vagueness, a statute must convey a sufficiently definite warning as to what conduct is proscribed. Zachary v. State, 269 So.2d 669 (Fla.1972).

The defendants argue that the statute is vague because it does not expressly delineate what acts are prohibited or in what manner a food stamp may be used, and they also assert that the phrase “not authorized by law” has already been tested for vagueness in Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 102 (1947), wherein this Court decided that Chapter 22761, Acts of 1945, was unconstitutionally vague. The statute in Locklin provided in part:

Section 1. That it shall be unlawful for any person to commit any act under color of authority as an officer, agent or employee of the United States government, State of Florida, or any political subdivision thereof when such act is not authorized by law; or to intimidate or otherwise by color of authority cause any other person to release information or allow inspection of records or extend a privilege not required by law.

Therein this Court determined;

Under the provisions of this Act an officer or employee is just as amenable to prosecution for an act done in good faith, when that act is not specifically authorized by law, as he would be for the commission of an act done with evil intent and wilfully done in violation of law. . .

[Emphasis supplied.]

Locklin is distinguishable from the case now before us in that the statute involved in Locklin was broader than Section 409.-325(2)(a) because it prohibited a person from committing “any act under color or authority as an officer . . . when such act is not authorized by law.” In the present food stamp cases, however, because of the peculiar nature of the food stamp program, because it is a federal program, and because Chapter 409 gives notice that it is a federal program with federal regulations, we conclude that the Legislature, by the use of the language “not authorized by law,” means not authorized by state and federal food stamp law.

It is a fundamental rule of statutory construction that the entire statute under consideration must be considered in determining legislative intent. Effect must be given to every part of the section and every part of the statute as a whole. The Court will view the entire statute to determine legislative intent. State v. Hayles, 240 So.2d 1 (Fla.1970). Implicit in Section 409.325(2)(a), when read in conjunction with the other sections of Chapter 409, is the fact that the words “in any manner not authorized by law” refer to state and federal food stamp law. For example, Section 409.-275 sets forth that the food stamp program is authorized expressly by the Congress of the United States and is administered by the Department of Agriculture. Section 409.026 provides that the Department of Health and Rehabilitative Services shall receive and distribute food stamps donated by the United States and promulgate regulations pertaining thereto. Section 409.-325(2)(a), when read in conjunction with Sections 409.275 and 409.026, is sufficiently definite to give reasonable notice that federal food stamp legislation and United States Department of Agriculture administrative regulations apply.

Fla.Admin.Code Rule IOC-3.16 provides:

The Food Stamp Program is administered according to rules and regulations established by Congress and the U.S. Department of Agriculture.

7 U.S.C. 2015(b) provided:

Coupons issued to eligible households shall be used by them only to purchase food in retail food stores which have been approved for participation in the food stamps program at prices prevailing in such stores .

7 U.S.C. 2012(b) defined “food” to mean:

any food or food product for human consumption except alcoholic beverages, tobacco, those foods which are identified on the package as being imported, and meat and meat products which are imported.

Section 409.325(2)(a) is sufficiently definite to inform the defendants that their conduct in selling non-food items for food stamps was proscribed.

Upholding the constitutional validity of the Washington welfare fraud statute against an attack of vagueness, the Supreme Court of Washington reasoned that applicants or recipients of welfare assistance who possess ordinary intelligence and understanding know that, by their very nature, public assistance grants depend on eligibility, need, resource and income, and these persons should know that, in applying for public assistance, they are required by statute to report the truth in supplying material information. State v. Knowles, 79 Wash.2d 835, 490 P.2d 113 (1971). Therein, the Court emphasized:

[W]hen one participates in, becomes a part of, or by operation of law is subject to a particular statute which includes provisions imposing criminal or penal sanctions, he incurs a social as well as a legal duty to ascertain what conduct is required of him. And if the statute is so phrased that a person of ordinary understanding can be said to comprehend from its language what is prohibited and what is required, it is not unconstitutionally vague or uncertain.

490 P.2d at 116.

Defendants additionally argue that, if this Court holds that the phrase “in any manner not authorized by law” refers to state and federal food stamp law, then Section 409.325(2)(a) constitutes an unlawful delegation of legislative authority. The State responds that it is well-settled by case law that the Legislature may adopt provisions of federal statutes and administrative rules that are in existence and in effect at the time the legislation is enacted.

In Florida Industrial Commission v. State, 155 Fla. 772, 21 So.2d 599 (1945), we held that the Legislature may approve and adopt provisions of federal statutes and administrative rules made by federal administrative bodies, which provisions are in existence and in effect at the time the Legislature acts. We went on to say, however, that to adopt in advance any federal act or ruling of any federal administrative body which may be adopted in the future would amount to an unlawful delegation of legislative authority. See also Freimuth v. State, 272 So.2d 473 (Fla.1972).

More recently, in Department of Legal Affairs v. Rogers, supra, wherein the “Little FTC Act” was challenged upon several grounds, one of which being that the Legislature intended to incorporate future holdings of a federal administrative body, this Court stated:

Another aspect of the issue of delegation of legislative authority concerns the question of whether the legislature by the subject act intended to incorporate future (subsequent to the effective date of the statute) decisions of the Federal Trade Commission and federal court decisions. To preserve the constitutional validity of the act, we would have to say that the legislative enactment intended only decisions made prior to its enactment. [Citations omitted.]

Since the Legislature is presumed to have enacted a valid and constitutional law and since statutes are to be construed, when reasonably possible and consistent with protection of constitutional rights, in such a manner so as to avoid conflict with the Constitution, we conclude that the Legislature intended to incorporate federal law and regulations in effect at the time Section 409.325(2)(a) was enacted.

The incorporation of only the federal law in effect at the time of the enactment of Section 409.325 may appear unworkable because changes in the federal law would not take effect in Florida. The Legislature, however, to avoid this problem, may update Chapter 409 each year, as they update Florida’s corporate income tax statute by bringing forward the Internal Revenue Code each year. See Section 220.03(l)(h), Florida Statutes (1977).

Accordingly, since we determine that Section 409.325(2)(a) is constitutional, we reverse the orders of the Circuit Court of Palm Beach County and the County Court of Pinellas County and remand these cases for further proceedings consistent herewith.

It is so ordered.

ENGLAND, C. J., and BOYD and OVER-TON, JJ., concur.

SUNDBERG, J., dissents with an opinion, with which ADKINS and HATCHETT, JJ., concur.

SUNDBERG, Justice,

dissenting.

Although I cannot be absolutely sure of it, I believe that a majority of the Court today has potentially sanctioned an enactment by the Legislature which would make unlawful as a discrete crime “the doing of any and all acts in any manner not authorized by law.” It could appropriately be entitled the “Omnibus Prevention of Unlawful Conduct Act.” Of course, conduct not authorized by law is not limited to criminal conduct but includes any act in contravention of the common law or statute, civil or criminal. To my mind, there is little difference between my hypothetical “Omnibus Prevention of Unlawful Conduct Act” and the provision here under consideration. This statute does nothing more than to state that it shall be unlawful to act in any manner not authorized by law and then provides a criminal sanction.

Notwithstanding the fact that legislative acts are presumed valid and that all doubts respecting the validity of a statute will, when reasonably possible, be resolved in favor of its constitutionality, nonetheless, a statute, particularly a penal statute, must be definite to be valid. Locklin v. Pridgeon, 158 Fla. 737, 740, 30 So.2d 102, 103 (1947). In addition, a statute may not prohibit the doing of an act in terms so vague that men of common understanding must necessarily guess as to its meaning. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Linville v. State, 359 So.2d 450 (Fla.1978); D’Alemberte v. Anderson, 349 So.2d 164 (Fla.1977).

In Locklin v. Pridgeon, supra, this Court found unconstitutionally vague a statute prohibiting unlawful conduct by state and federal officers. The statute provided, “it shall be unlawful for any person to commit any act under color of authority as an officer . . . when such act is not authorized by law . . . .” (Emphasis supplied.) Such language, the Court found, was so uncertain that men of common intelligence had to guess as to its meaning and could have differed as to the conduct it prohibited. The language in Section 409.-325(2)(a), Florida Statutes (Supp.1976), is strikingly similar to the Locklin statute and provides no greater clarity.

The requirement of Section 409.325(2)(a) that the unauthorized conduct be done “knowingly” does not salvage the provision. In the absence of an express delineation of the acts prohibited, or a specific cross-reference to other statutes, a person who knowingly possesses or transfers food stamps cannot be certain that he does not do so in a “manner not authorized by law.”

The majority asserts that the deficiencies found in the statute invalidated in Locklin v. Pridgeon are alleviated by reference to the entire statute of which Section 409.-325(2)(a) is a part. To the contrary, I conclude that more precise definition of the conduct prohibited by Section 409.325(2)(a) is not provided by reference to other provisions in Chapter 409. Rather, Sections 409.-026 and 409.275, cited by the State as lending meaning to Section 409.325(2)(a), do ■nothing more than establish that the food stamp program is federally administered, with local administration vested in a state agency. By contrast, the federal statute prohibiting unauthorized use, transfer, acquisition, alteration, or possession of food stamps specifically refers to acts committed in a manner not authorized by other provisions of the chapter dealing with the federal food stamp program and the regulations issued pursuant to that chapter. Though not itself delineating the acts prohibited, the federal statute precisely defines the prohibited conduct by reference to a particular chapter of federal law. Similarly, California has defined the prohibited use and transfer of food stamps by specific reference to acts committed in a manner unauthorized by Title 7 U.S.C.A. § 2023(b). Section 409.325(2)(a), Florida Statutes (Supp. 1976), on the other hand, refers only to acts committed “in a manner unauthorized by law,” without informing men of common understanding which laws are applicable.

If, as it is argued by the State and accepted by the majority, the statute incorporates federal food stamp statutes and regulations, the conduct which is prohibited must reflect changes in federal law. This is so because, as part of a federal program, the Florida food stamp program must necessarily conform to amendments made at the federal level. Where an enactment incorporates by reference other legislation and regulations, certain fundamental rules of statutory construction are applied to determine the intent of the Legislature with respect to the scope of the incorporated provisions. When a statute incorporates by reference the provisions of general law on a particular subject, the Legislature is deemed to have intended that future amendments and modifications to the general law referred to become a part of the adopting statute. See Reino v. State, 352 So.2d 853 (Fla.1977); Williams v. State ex rel. Newberger, 100 Fla. 1567, 125 So. 358 (1930); State v. Smith, 189 So.2d 846 (Fla. 4th DCA 1966). In contrast, when the Legislature enacts a law which incorporates the provisions of a specific statute or section of a statute, it has expressed an intent that any subsequent amendment or repeal of the adopted provisions leave the adopting statute unaffected. See Overstreet v. Blum, 227 So.2d 197 (Fla.1969); Williams v. State ex rel. Newberger, supra. Application of the foregoing principles of statutory construction reveals that Section 409.325(2)(a), which prohibits acts committed “in a manner unauthorized by law,” refers at best to the general law on the subject of impermissible use of food stamps. Consequently, our Legislature is deemed to have intended that Section 409.325(2)(a) embody not only the general law in effect on the date of its enactment, but also amendments to and modifications of that general law effected subsequent to the date of the statute’s enactment. Because it is an unlawful delegation of legislative authority for our Legislature to enact a statute which incorporates federal legislation and regulations which will arise in the future, State v. Camil, 279 So.2d 832 (Fla.1973), Friemuth v. State, 272 So.2d 473 (Fla.1972), Section 409.325(2)(a), Florida Statutes (Supp.1976), would be unconstitutional on this count.

It is apparent that in concluding that Section 409.325(2)(a) incorporates only existing federal laws and regulations, the majority has misapplied these basic principles of statutory construction in determining the intent of our Legislature and, consequently, has erroneously found that the enactment is constitutional. The error in the majority’s construction of Section 409.325(2)(a) is further evidenced by the absolute unworkability of the statute as construed. In view of the total dependency of this State’s role upon the actions of Congress and the United States Department of Agriculture in promulgating and administering a federal food stamp program, it is inconceivable that the Legislature intended to adopt only the federal statutes and regulations on the subject in existence as of the date of the enactment of Section 409.325(2)(a). What Congress or the Department of Agriculture authorizes today may be rescinded by those bodies tomorrow or vice versa. To assert that an annual updating of Chapter 409 by the Legislature resolves any problems inherent in “freezing” particular federal statutes and regulations into our act fails to take into account that distribution of food stamps is a day-by-day process which could be jeopardized for Florida recipients by the time lag between action by Congress or its agencies and action by our Legislature. This “time lag” would result in the Florida food stamp program failing to promptly conform to amendments made at the federal level, as required.

Finally, the majority relies upon State v. Knowles, 79 Wash.2d 835, 490 P.2d 113 (1971), as support for the conclusion that the statute in question here is not vulnerable to an attack of vagueness. However, the Washington statute there under review does not resemble at all Section 409.-325(2)(a), Florida Statutes (Supp.1976). The operative language of the Washington statute as set out by that court was:

Any person who by means of a wilfully false statement, or representation, or impersonation, or a wilful failure to reveal any material fact, condition or circumstance affecting eligibility of need for assistance, including medical care, surplus commodities and food stamps, as required by law, or a wilful failure to promptly notify the • county office in writing as required by law or any change in status in respect to resources, or income, or need, or family composition, money contribution and other support, from whatever source derived, or any other change in circumstances affecting his eligibility or need for assistance, or other fraudulent device, obtains, or attempts to obtain, or aids or abets any person to obtain any public assistance to which he is not entitled or greater public assistance than that to which he is justly entitled shall be guilty of grand larceny * * *.

490 P.2d at 114.

The Washington court quite reasonably concluded that the foregoing provisions of its statute were sufficiently definite to convey to a person of ordinary understanding:

[T]hat, in applying for or accepting public assistance, he must not knowingly and intentionally make any false statement concerning facts about his condition, circumstance or family; neither must he knowingly and willfully fail to reveal such facts to the departments; and he must inform the department of any change in the recipient’s status or condition affecting his eligibility. The statute thus makes it clear that, if while receiving public assistance there has been a substantial change in the resources, assets, income, family size, composition or dependency, or any substantial increase in the amount of money or property being received by the recipient from sources other than the Department of Public Assistance, or any change in the recipient’s circumstances and condition which a person of ordinary understanding would understand to affect the recipient’s need or eligibility for public assistance, then he is under an affirmative duty to notify and report to the department such change in circumstances, conditions and income.

490 P.2d at 115-116.

If the provisions of Section 409.325(2)(a) spoke with the clarity of the Washington statute, I would have no quarrel with the holding of the majority opinion. However, they clearly do not. I am not sure that a “Philadelphia lawyer” would apprehend the extent of what is proscribed by Section 409.325(2)(a), Florida Statutes (Supp.1976), but I am certain that a man of common intelligence and understanding cannot.

When the facial validity of a statute is assailed, as here, it makes no difference that the particular acts with which the several appellants were charged could properly be proscribed by a statute which defined the prohibited conduct with the requisite specificity. The test is whether the language employed is so vague and indefinite that a person of common intelligence must speculate about its meaning and be subjected to arrest and punishment if the guess is wrong. State v. Wershow, 343 So.2d 605 (Fla.1977).

We are all offended by welfare fraud because it constitutes cheating upon the largess of a socially conscious society. Nonetheless, the setting in which a penal statute attempts to operate cannot justify cutting constitutional corners. Since I believe the statute under review does just that, I am compelled to dissent. I would affirm the orders of the trial courts of Palm Beach and Pinellas Counties finding Section 409.325(2)(a), Florida Statutes (Supp.1976), unconstitutional.

ADKINS and HATCHETT, JJ., concur.

      . Defendant Rodriquez was charged with knowingly selling a .22 caliber revolver for $240 worth of United States Department of Agriculture food stamps. Defendant Melendez was charged with purchasing $1,000 worth of food stamps from another individual for $625. Defendants Sherrod, Harris, Smith, Shorter, Humphries, Thomas and Bennett were each charged separately with selling non-food items in exchange for United States government food stamps.

      . Chapters 78-58, 77-402, 76-173, 75-293, 74-324, 73-321, and 72-278, Laws of Florida.

      . 7 U.S.C.A. § 2023(b). This provision provides in full:
      “Whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization to purchase cards in any manner not authorized by this chapter or the regulations issued pursuant to this chapter shall, if such coupons or authorization to purchase cards are of the value of $100 or more, be guilty of a felony and shall, upon conviction thereof, be fined not more than $10,000 or imprisoned for not more than five years or both, or, if such coupons or authorization to purchase cards are of a value of less than $100, shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not more than $5,000 or imprisoned for not more than one year, or both.”
      The federal statute was upheld against a void for vagueness attack in United States v. Goyette, 458 F.2d 992 (9th Cir. 1972).


author: PER CURIAM. ALDERMAN, Justice,

text:
    FLORIDA BOARD OF BAR EXAMINERS re Lonnie Neil GROOT .
    No. 52842.
    Supreme Court of Florida.
    Nov. 22, 1978.

      Lonnie Neil Groot, in pro. per.
    C. Graham Carothers, Tallahassee, for respondent.

       Although bar admission petitions to the Court are ordinarily confidential, an applicant may waive the confidentiality and anonymity of his or her admission application. Lonnie Groot has waived the confidentiality of his application.

   PER CURIAM.

Lonnie Groot applied for admission to The Florida Bar and passed all required portions of our bar examination. The Florida Board of Bar Examiners, acting as our agent for the admissions process, undertook an investigation into his character, fitness and general qualifications to practice law in the state. In its investigation, the Board learned that Groot had filed a voluntary petition for bankruptcy in 1977 and had been discharged from his financial obligations, including substantial student loans incurred to finance his education.

The Board completed its findings and conclusions, and refused to recommend Groot for admission to the bar. After Groot exhausted his administrative remedies within the Board, he petitioned the Court for admission, challenging each of the Board’s conclusions and raising the general issue of the effect of a bankruptcy petition on a bar applicant’s fitness to practice law. We heard oral argument on February 6, 1978, to further crystallize the issues presented by Groot’s admission application.

Groot attended Florida State University as an undergraduate and law student, graduating in 1973 and 1976, respectively. He financed his undergraduate and law school education in part through student loans obtained from Florida banks and guaranteed by the federal government. At the time of his law school graduation in June 1976, these obligations totalled approximately $8,530. Repayment of these debts was to commence not later than one year after he ceased to carry at least one-half of a full-time academic workload — that is, in June 1977.

In July 1976, Groot successfully sat for the multi-state portion (Part II) of the Florida bar examination. In November 1976, he terminated his part-time employment with the Office of the Speaker of the Florida House of Representatives, where he was receiving a $14,000 annual salary, and moved to Helena, Montana. There he accepted employment as a counselor with TriCounty DD (Developmentally Disabled), Inc., for compensation of approximately $4,800, plus living quarters, food and utilities. In December 1976, he secured additional employment with the Montana Legislative Council as a legislative legal aide, at a salary of approximately $13,000 per year.

Around May 1, 1977, Groot abruptly left his jobs in Montana and moved to Golds-boro, North Carolina. Although Groot had represented to the Council that he would remain in its employ for at least one full year, and had represented to Tri-County that he would remain on the job for not less than nine months, neither employer has indicated any dissatisfaction with his early departure. En route to Goldsboro he incurred gasoline credit charges, and while in Goldsboro (and unemployed) he incurred hospital debts for the birth of a child. These several debts, all of which were later discharged in bankruptcy, totalled approximately $900.

Groot successfully sat for Part I of the May 1977 bar examination, and in July 1977 he passed Part III of the bar examination. On June 30, 1977, he submitted an application for admission to The Florida Bar.

On or about August 18, 1977, Groot filed a voluntary petition for bankruptcy in the United States District Court, Eastern District of North Carolina, seeking to discharge his medical and travel debts and his accumulated student loan obligations. Approximately one week later he accepted a position as staff director of the Florida House of Representatives’ Committee on Standards and Conduct, at a salary of approximately $18,000 per year. He received a discharge in bankruptcy on November 11, 1977.

After undertaking an investigation into Groot’s background and character, the Board invited Groot to appear for an informal hearing. During that hearing, the Board inquired into circumstances surrounding Groot’s personal history which it felt reflected adversely on his fitness to practice law. The Board later advised Groot that he was entitled to a formal hearing on the matters of its concern, but Groot responded in writing denying the charges against him and stating that he did not want a further hearing before the Board.

The Board eventually recommended against Groot’s admission to practice, basing its decision principally on two grounds. First, it concluded that the chronology of events leading up to his filing of a petition for bankruptcy created serious doubt as to Groot’s motives for seeking a discharge of his debts. Specifically, the Board found from the record that Groot knowingly engaged in a course of conduct which (i) contributed to his inability to satisfy his debts in a timely and responsible manner, and (ii) caused them to be discharged without any attempt on his part to pay or renegotiate them. Second, the Board concluded that Groot had testified falsely under oath at his informal hearing in response to questions regarding his obligation to repay one of his student loans. In regard to the repayment of loans made by the Combank of Winter Park, Florida, Groot responded to one of the examiner’s questions:

“The loans to the Combank at Winter Park, I hadn’t entered any contract yet, so that was-whenever I entered an agreement to start repaying it, that’s when I would start repaying that one.”

The Board found that Groot well knew this testimony was false in that his obligation to begin repayment had been set to commence not later than one year from the date on which he ceased to carry at least one-half of a normal full-time academic work load.

Since oral argument before the Court, Groot has filed a number of communications and petitions with the Court, demanding his prompt admission to the bar and raising other matters which, for the most part, are irrelevant to this proceeding.

Groot basically asserts to the Court that there is nothing unethical either in his filing for bankruptcy or in the overall course of his conduct. We have already dealt with the first aspect of Groot’s argument. The filing of a petition for bankruptcy, standing alone, does not constitute sufficient cause to deny admission to The Florida Bar. Florida Board of Bar Examiners Re: G. W. L., 364 So.2d 454 (Fla.1978). As regards Groot’s assertion that his overall conduct reflects a fitness for admission to the bar, we find from the record no support for the Board’s conclusion to the contrary, and we therefore direct his admission to the practice of law.

The Board’s first finding relates to Groot’s prebankruptcy conduct. The record reflects Groot’s itinerancy from Florida to Montana to North Carolina, but it offers no basis on which to conclude that the various departures were motivated by unethical or improper considerations. Groot’s personal life was in disarray during this period, in part from problems which culminated in a divorce. The Board’s concern for Groot’s abrupt departure from gainful employment on several occasions provides no unethical gloss on his character, however, for in each case he left behind employers who were wholly satisfied with his prior performance and who later expressed to the Board a willingness to rehire Groot if he were desirous of returning to their employ.

The expenses attendant to these moves similarly suggest nothing with respect to Groot’s character, as they were both reasonable and necessary for the travel performed. It cannot be said from the record before us that these costs were incurred with a reckless disregard for their payment. Groot charged gas purchases on two credit cards which he validly owned. The fact that he later discharged these debts in bankruptcy, instead of paying them according to their terms, is the only basis of support for the Board’s conclusion that he initially incurred the charges recklessly or malevolently. Contradicting that view, however, is the record of Groot’s inability to secure employment in North Carolina. Similarly, he could not avoid the medical bills necessitated by the birth of his child.

It appears to us that, in evaluating Groot’s prebankruptcy conduct, the Board unduly emphasized Groot’s wandering and indecision during a period of his life when his personal affairs were at a low ebb. During that period Groot not only divorced his wife and had a child, but he found himself unable to obtain reasonable employment. Since the debts he later discharged were validly and properly incurred, it is irrelevant to an evaluation of his character that credit was extended by gasoline companies and a hospital at a time when Groot lacked the current capacity to repay the obligations. The mere fact that debts are incurred beyond a debtor’s present capacity to repay them is not, without more, an indication of immorality.

The course of Groot’s conduct up to August 1977, then, offers no basis to deny Groot admission to The Florida Bar. In that month, however, Groot secured the prospect of gainful employment and simultaneously took the initial legal steps to discharge his accumulated debts. The ultimate issue facing the Board, and now facing us, is whether it was morally reprehensible for Groot to set in motion the mechanism to avoid repayment of his debts at the very time he developed the capacity to begin repayment. The record shows that at the time Groot filed for bankruptcy, he was reasonably sure of employment with the Florida House of Representatives. Obviously, he intended to unburden himself of accumulated debts in order to retain, to the detriment of his creditors, the full financial benefits of his new employment. His right to exercise that choice, of course, is precisely the reason that the bankruptcy laws exist. As we held in Florida Board of Bar Examiners Re: G. W. L., a desire to “wipe the slate clean” cannot alone be a basis to prevent admission to the bar. The real issue here, as in that case, is whether the Board could reasonably conclude from the record that Groot’s conduct under the circumstances was morally reprehensible. We think it was not.

Unlike G. W. L., Groot was the father and legal custodian of two children born of his recently-terminated marriage. His expenses included not only his own living costs and those of his dependents, but to some degree those of his former wife. When his personal resources became exhausted, he was forced to prevail upon family members to loan him the money, to meet current living expenses while he was without a job. Thus, unlike G. W. L., Groot had suffered unusual misfortune at the time he finally secured employment, and he had a valid present need to devote his entire employment income to his current, not past, financial responsibilities. His circumstances warranted his turning to the remedy provided by federal law for persons in just such situations, and we hold that Groot’s conduct under these circumstances is not morally reprehensible or indicative of a present unfitness for admission to the bar.

The Board’s second basis for rejecting Groot’s admission is reflected in its finding that Groot gave false testimony concerning repayment of his student loan to Combank of Winter Park. The one statement made by Groot at the informal hearing on which the Board relied, however, is misleading when considered in isolation. The statement is, in fact, completely accurate when considered in the context of Groot’s total testimony on the subject and the legal mechanisms which then existed for student loan repayments. It seems clear to us that Groot’s statement to the Board was intended to communicate only that he had not signed a promissory note and confirmed a repayment schedule for the Combank debt at the time he initiated bankruptcy. His student loans had been financed on the basis of a contract which called for the post-graduate execution of a formal legal instrument setting for the first time the exact terms for repayment. Although the debts had been incurred with an expectation that repayment was to commence not later than one year after graduation, the precise due dates and amounts of periodic payments had been left open for .embodiment in a later promissory note which, at the time of Groot’s quoted response before the Board, simply had not yet been executed. The Board’s treatment of this one statement by Groot at his informal hearing as a misrepresentation of the truth was not warranted. From the record as a whole, his response was truthful.

For the reasons expressed above, we direct the admission of Lonnie Neil Groot to the practice of law.

It is so ordered.

ENGLAND, C. J., and BOYD, SUND-BERG and HATCHETT, JJ., concur.

ADKINS, J., concurs in result only.

ALDERMAN, J., dissents with an opinion.

OVERTON, J., did not participate having recused himself pursuant to the provisions of Canon 3 C(l) of the Code of Judicial Conduct.

ALDERMAN, Justice,

dissenting.

I respectfully dissent from the majority decision which directs that Groot be admitted to the practice of law. In my opinion, the Court has substituted its judgment on disputed factual issues for that of the finder of fact, the Florida Board of Bar Examiners.

After evaluating and weighing the testimony based upon its personal observation of the demeanor and credibility of the witnesses, the Florida Board of Bar Examiners found that the chronology of events leading up to the filing of Groot’s petition for bankruptcy creates serious doubt as to his motives for seeking a discharge of his debts in bankruptcy; that he knowingly engaged in a course of conduct which contributed to his inability to satisfy his debts in a timely and responsible manner; that during the period from June 1976 when he graduated from law school to August 1977 when he filed his petition for bankruptcy, he exhibited substantial disregard for his obligation to repay debts incurred by him when his income was sufficient to enable him to repay such debts; and that his filing of his petition for bankruptcy within one week of his acceptance of a position in Florida at a salary of $18,000 per year creates an inference that he was solely motivated by his own self gain. The Board also found that he testified falsely under oath at the informal hearing before it on November 11, 1977. The Board in conclusion found that the evidence before it established clearly and unequivocally that Groot fails to meet the standards of conduct and fitness required by Article IV, Section 19 of the Rules of the Supreme Court of Florida Relating to Admissions to the Bar.

There is evidence in the record that supports the findings of fact of the Board of Bar Examiners, and I believe these findings of fact should be accorded the same presumption of correctness as are accorded findings of other triers of fact such as the referee in disciplinary proceedings. Cf. Rule 11.06(9)(a), Integration Rule of The Florida Bar. The Florida Board of Bar Examiners is charged with the responsibility of determining the character and fitness of applicants to The Florida Bar. Article II, Section 12, Rules of the Supreme Court Relating to Admissions to the Bar provides in pertinent part:

“Prior to recommending an applicant for admission to practice the profession of law in Florida, the Florida Board of Bar Examiners shall conduct an investigation and otherwise inquire into and determine the character, fitness and general qualifications of every applicant. In every such investigation and inquiry the Board may obtain such information as bears upon the character, fitness, and general qualifications of the applicant and take and hear testimony, administer oaths and affirmations, and compel, by subpoena, the attendance of witnesses and the production of books, papers and documents. . . ”

Article IV, Section 19, provides:

“No person shall be recommended by the Florida Board of Bar Examiners to the Supreme Court of Florida for admission to The Florida Bar unless he first produces satisfactory evidence to the Board that he is of good moral character, that he has an adequate knowledge of the standards and ideals of the profession and is otherwise a fit person to take the oath and perform the obligations and responsibilities of an attorney.”

The Board has been appointed the fact-finder to determine whether an applicant to the Bar possesses the requisite educational, character, and fitness requirements.

The evidence in this case is subject to two interpretations. One of these interpretations clearly supports the findings of the Board. Although, had we been the fact-finder in this case, we may have reached a different result upon evaluation of the evidence, we should not now, after reviewing the cold record, substitute our judgment for that of the Board as long as there is evidence in the record to support the Board’s findings. Accordingly, I would deny Groot’s petition for admission at this time without prejudice to his seeking admission at a later date as provided by Article IV, Section 20(c), Rules of the Supreme Court Relating to Admissions to the Bar.

      . Our authority to admit attorneys to practice in Florida derives from Article V, Section 15 of the Florida Constitution. The Board’s authority derives from the Rules of the Supreme Court Relating to Admissions to the Bar (1975 Revision), Article I, Section 2, 32 Florida Statutes Annotated 273 (Supp.1978).

      . Fla.Sup.Ct. Bar Admiss.Rule, art. II, § 12.

      . Since these events, however, federal law has been amended to provide that an adjudication of bankruptcy does not always discharge federal student loans. 20 U.S.C. § 1087-3 (1976).

      . See Fla.Sup.Ct. Bar Admiss.Rule, art. II, § 12; Fla.Bd. Bar Exam.Rule VI, § 70, 32 Fla.Stat. Ann. 291 (Supp.1978).

      . Fla.Sup.Ct. Bar Admiss.Rule, art. IV, § 20(a).

      . For example, on June 14, 1978, Groot indicated that he had filed a complaint against three members of the Florida Board of Bar Examiners with the Florida Ethics Commission, based on their refusal to admit him to the practice of law. After the complaint was dismissed because the bar examiners were found by the Commission not to be subject to the Commission’s jurisdiction, Groot notified the Court of his disagreement with the Commission’s decision.


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Eddie Lee SHARP, Respondent.
    No. 53138.
    Supreme Court of Florida.
    Nov. 30, 1978.

      Robert L. Shevin, Atty. Gen., Ira N. Lo-ewy and Steven L. Bolotin, Asst. Attys. Gen., Miami, for petitioner.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, Miami, for respondent.
   PER CURIAM.

Certiorari is granted. Briefs on the merits will not be filed. The decision of the district court, Sharp v. State, 353 So.2d 642 (Fla. 3d DCA 1977), is quashed and the cause is remanded with the direction that respondent’s conviction be reinstated. State v. Abreau, 363 So.2d 1063 (1978).

It is so ordered.

ENGLAND, C. J., and BOYD, SUND-BERG, HATCHETT and ALDERMAN, JJ., concur.

Order on mandate, 366 So.2d 500.


author: PER CURIAM. PER CURIAM.

text:
    Robert L. WESTFALL, Appellant, v. STATE of Florida, Appellee.
    No. HH-110.
    District Court of Appeal of Florida, First District.
    Sept. 27, 1978.
    On Rehearing Dec. 22, 1978.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from a conviction for sale of phencyclidine (PGP). The state concedes that the chain of custody of the substance seized was not established and the substance itself was properly excluded at trial. The chain of possession from the law enforcement agents to the chemist was established, but the agents did not identify the particular envelope in which the substance taken from the defendant was placed and the chemist was given several envelopes at the same time. Further, the testimony at trial did not establish that all the envelopes delivered the same day contained phencyclidine. Thus, the testimony by the chemist cannot stand.

In this case, however, the law enforcement agents were allowed to testify that they performed a “field test” on the substance which tested positive for phency-clidine. There was no objection by the defendant to the qualifications of the agents or to the validity of the test. Therefore, this evidence stands unrefuted and was properly considered in ruling on a motion for a judgment of acquittal.

We, therefore, AFFIRM.

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

ON PETITION FOR REHEARING GRANTED

PER CURIAM.

Upon reconsideration on petition for rehearing, we find, as we did in our previous opinion, that the trial court erred in denying appellant’s motion to strike the chemist’s testimony. Even though we held in our previous opinion and reaffirm here that the positive “field test” for phencycli-dine stands unrefuted and was properly considered in the trial court’s ruling on a motion for judgment of acquittal, we cannot say that the jury gave credence to such testimony. It may well have been that the jury based its verdict upon the testimony of the chemist which should have been excluded. Therefore, our previous affirmance is vacated, and this cause is reversed and remanded for new trial.

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


author: PER CURIAM. HUBBART, Judge,

text:
    Leo HENZEL, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2631.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 1978.
    Rehearing Denied Nov. 17, 1978.
    Bierman, Sonnett, Beiley, Shohat & Osman, Miami, and Michael J. Osman, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz and William M. Grodnick, Asst. Attys. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Owens v. State, 354 So.2d 118 (Fla 3d DCA 1978); Gaines v. State, 172 So.2d 887 (Fla. 2d DCA 1965); Hendley v. State, 163 So.2d 12 (Fla. 2d DCA 1964); and Savage v. State, 156 So.2d 566 (Fla. 1st DCA 1963).

HUBBART, Judge,

dissenting.

I dissent. Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla.1977).


author: OTT, Judge.

text:
    Harry N. MORGAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 78-438.
    District Court of Appeal of Florida, Second District.
    Nov. 1, 1978.
    Rehearing Denied Dec. 11, 1978.

      Jack Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Harry Ned Morgan, Jr. appeals his sentences for two counts of burglary and one count of escape. Only one of the issues raised merits discussion here: whether there is a discrepancy between the trial court’s announced intention and the sentence actually imposed. We find there is such a discrepancy and remand for reconsideration and any concomitant correction of the sentence found necessary.

The trial judge announced at the conclusion of the sentencing hearing that he intended appellant serve a total of twenty years in prison. In the thereafter filed written judgment and sentence appellant was given two consecutive fifteen year sentences and one five year sentence concurrent with one of the fifteen year sentences — a total of thirty years, not twenty. The record fails to disclose any change of mind or other explanation for this discrepancy. The trial court should clarify its intent and, if necessary, correct the sentence accordingly.

We find no merit in the other points raised by appellant.

The convictions are affirmed but the cause is remanded for the purpose herein stated. The defendant need not be present for this purpose.

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

      . Appellant received fifteen years on each of two burglary counts. Since he was charged in both counts with burglary of a dwelling, these offenses were second degree felonies, Section 810.02(3), Fla.Stat. (1977), punishable by up to fifteen years in prison. Section 775.082(3)(c), Fla.Stat. (1977). Appellant’s five year sentence on the escape charge, which is also a second degree felony, Section 944.40, Fla.Stat. (1977), is also within the statutory maximum set by Section 775.082.


author: BOYER, Judge.

text:
    LITITZ MUTUAL INSURANCE COMPANY, Appellant, v. T. A. (Doc) BOWDOIN, Appellee.
    No. JJ-358.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1978.
    Rehearing Denied Jan. 8, 1979.

      H. O. Pemberton of Keen, O’Kelley, Field & Ellis, Tallahassee, for appellant.
    Stephen A. Smith and Michael S. Smith of Smith & Smith, Lake City, for appellee.
   BOYER, Judge.

This is an appeal and cross-appeal from a final order for equitable distribution.

T. A. (Doc) Bowdoin had an insurance policy from Lititz Mutual Insurance Company which covered a building and the contents of that building. Part of the building and contents were destroyed when a truck crashed through the wall of the building. Bowdoin retained an attorney and filed a negligence action against the driver of the truck and his employer. Subsequently, Lit-itz paid Bowdoin insurance benefits totall-ing $14,186.61. The suit between Bowdoin and the tortfeasor was settled for $45,-000.00. After the settlement, Lititz demanded repayment of 100% of the insurance benefits paid to Bowdoin. Lititz refused to share any of the expenses of attorney’s fees, costs, and other expenses and refused to negotiate for any lesser amount.

Bowdoin then filed a petition for equitable distribution alleging that he had expended great sums of money for attorney’s fees and expenses in investigating and prosecuting the claim; invested large amounts of time; and put up or stood good for court costs, investigation costs, and other expenses. In addition, Bowdoin alleged that he had failed to obtain the full recovery for his entire damages. Attached to the petition for equitable distribution were a copy of the insurance policy and a copy of the pleadings filed in the original negligence action.

Lititz answered that the insurance policy between Lititz and Bowdoin clearly contained a subrogation clause which supported the claim for 100% reimbursement. Lititz alleged that the money paid to Bow-doin was a loan which contained the provision that all legal proceedings were to be under the exclusive direction and control of the company. Prior to the settlement between Bowdoin and the tortfeasor, the attorney for Bowdoin wrote to an attorney for Lititz for permission to enter into a settlement. Lititz replied that it would consent to a settlement with the understanding that it would be reimbursed 100% of its total payment. The loan receipts and the letters exchanged by the attorneys were attached to the answer.

A hearing was held on the petition for equitable distribution and memoranda of law were filed with the court. Evidence was introduced concerning the total loss by Bowdoin, the amount of settlement and the basis for the settlement, and the costs expended by Bowdoin in preparing the case. Lititz pointed out that some of the information used in arriving at the settlement was adduced by the claims adjuster employed by Lititz and represented considerable work and time. After considering all of the information, the trial court ruled that Lititz’s equitable share of the recovery against the tortfeasors was $8,686.00. The court specifically directed that Lititz should pay 30% of the actual taxable court costs incurred by Bowdoin, but denied Bowdoin’s claim for attorney’s fees incident to the action for equitable distribution. Both parties appealed to this court for review of the order for equitable distribution.

The facts of this case are analogous in several respects to those in Central National Insurance Group v. Hotte, 312 So.2d 236 (Fla. 1st DCA 1975). First, in Hotte there was a trust for which there was no consideration; here there were loan receipts which were without consideration since the insurer paid only the amount it was obligated to pay. Second, the insurer wanted to require or allow the insured to bear the legal costs and still reimburse the insurer 100% of its payment. Third, there was no statutory right involved and the court applied “the general principles of subrogation.” We are of the view that sub judice the general principles of subrogation were applicable.

Lititz contends that it should not be required to share in the costs of litigation, arguing that the facts of this case are distinguishable from those in Forsyth v. Southern Bell Telephone & Telegraph Co., 162 So.2d 916 (Fla. 1st DCA 1964). We agree that there are factual differences, but we hold that the principle is the same. Thus, the requirement by the trial court that Lititz share the expenses of the litigation was proper.

The task of the trial court in determining the exact amount to be awarded in a suit for equitable distribution is difficult. As this court stated in State Farm Mutual Automobile Insurance Company v. Gordon, 319 So.2d 36, 40 (Fla. 1st DCA 1975), “[N]o criterion has been developed for the application of exact mathematical calculations to equitable distribution situations.” The requirement is that the distribution “should have foundation in logic and reason and should be based upon evidence . ”. The explanation by the trial court in this case was based on logic and reason and there was evidence to support his findings. We affirm on that point.

We do, however, find one error in the trial court’s order: The denial of attorney’s fees for Bowdoin. While it is generally true that an insured is not entitled to attorney’s fees when the suit does not arise out of the insurance contract, (Forsyth v. Southern Bell Telephone & Telegraph Co., supra, and Government Employees Insurance Co. v. Graff, 327 So.2d 88 (Fla. 1st DCA 1976)) the opposite is true where there is evidence that the insurer refused to negotiate in good faith. (Catches v. Government Employees Insurance Co., 318 So.2d 552 (Fla. 1st DCA 1975)) Here, there is evidence that the insurer refused to negotiate in good faith and demanded 100% reimbursement for money paid under the policy, forcing Bowdoin to go to court to seek equitable distribution. Under these facts, the case is controlled by Catches, supra, where we held that such action by an insurer constitutes a denial of a material obligation of coverage entitling the successful plaintiff to an attorney’s fee award. Accordingly, we reverse the denial of appel-lee’s trial court attorney’s fee and remand for a determination of the amount by the court below.

The order appealed is affirmed in all other aspects. Appellee is awarded attorney’s fees for this appeal, the amount to be determined by the trial court.

AFFIRMED IN PART, REVERSED IN PART.

McCORD, C. J., and MILLS, J., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    Elizabeth Elayne HAWK, Appellant, v. Clyde Leroy HAWK, Appellee.
    No. JJ-141.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1978.
    Rehearing Denied Dec. 19, 1978.
    Stephen A. Rappenecker, P. A., Gaines-ville, for appellant.
    W. Roderick Bowdoin of Darby, Pelle, Page & Bowdoin, P. A., Lake City, for appellee.
   PER CURIAM.

AFFIRMED.

ERVIN, Acting C. J., and MELVIN, J., concur.

BOOTH, J., dissenting in part.

BOOTH, Judge,

dissenting in part.

I would remand this cause to the trial court for an award of attorneys fees for the wife who is unemployed and without job skills or assets other than the award of $5,500.00, $3,500.00 of which was lump sum alimony. The husband is a chiropractor who testified that his gross yearly income from his practice averaged $40,000.00 to $50,000.00 and has exceeded $50,000.00. Florida Statute § 61.08(1), applied by the trial court to reduce to a bare minimum any alimony to the wife, does not by its terms apply to attorneys fees. The failure of the trial court to award those fees under the facts of this case is an abuse of discretion, and insofar as the majority affirms that portion of the judgment below, I respectfully dissent.


text:
    Ronald E. STOVER, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-551 through 78-555 and 78-564.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 1978.

      Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgments and sentences of the trial court, but we agree with appellant that the phrase “at hard labor” in the sentence imposed for grand larceny is improper. Knight v. State, 349 So.2d 232 (Fla.2d DCA 1977). Accordingly, we remand the case to the trial court for removal of the hard labor provision. Appellant need not be present for this correction.

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


author: DANAHY, Judge.

text:
    Judy WERNDLI, Appellant, v. The GREYHOUND CORPORATION, a Delaware Corporation, Appellee.
    No. 78-252.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1978.
    Rehearing Denied Dec. 15, 1978.
    John B. Cechman of Goldberg, Rubinstein & Buckley, Fort Myers, for appellant.

      Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.
   DANAHY, Judge.

The issue before us is whether The Greyhound Corporation was under a duty to warn appellant at the inception of her trip that the bus on which she was traveling would deposit her in a closed, locked and darkened terminal at her destination. We believe that Greyhound did have that duty and accordingly reverse the order of the trial court dismissing appellant’s amended complaint.

Appellant filed suit against Greyhound seeking damages for injuries sustained as a result of an attack by a third party near the Greyhound bus terminal in Fort Myers. Her amended complaint set forth the following facts which we must accept as true:

Appellant purchased a ticket for herself and her young son at the Greyhound bus terminal in St. Petersburg for a trip which would terminate at the Greyhound bus terminal in Fort Myers. The bus departed on schedule at approximately 11:30 p. m. and, after scheduled intermediate stops, arrived at the Fort Myers terminal at approximately 4:15 a. m. When she alighted from the bus after her long ride, appellant observed that the station and restrooms were darkened, closed, and locked. Because she needed to use bathroom facilities and also wished to obtain a cold drink for her thirsty son, appellant left the terminal facilities to cross to a lighted service station. As she walked away from the terminal, she was attacked by an unknown person who caused her severe injuries. The terminal was located in a high crime area of Fort Myers.

The trial judge dismissed the amended complaint because of the failure to allege violation of a duty which Greyhound owed appellant.

Greyhound agrees with appellant that a common carrier is required to exercise the “highest degree of care, foresight, prudence and diligence reasonably demanded at any time by the conditions or circumstances then affecting the passengers and the carrier.” Whitman v. Red Top Sedan Service, Inc., 218 So.2d 213 (Fla. 3d DCA 1969). Greyhound maintains, however, that any duty on its part terminated absolutely when appellant left its premises after completing her trip. We find it unnecessary to address that point because Greyhound’s duty arose and was breached at the time appellant purchased her ticket. A common carrier is under a duty to warn passengers of dangers which are reasonably foreseeable and which might cause harm. This is especially true in situations where the passenger would not, in the exercise of reasonable care, be likely to anticipate and apprehend the danger. Tietz v. Inter. Ry. Co., 186 N.Y. 347, 78 N.E. 1083 (1906). Inasmuch as Greyhound knew or should have known that its Fort Myers terminal was located in a high crime area and would be darkened, closed, and locked at the time appellant was due to arrive there in the middle of the night, we believe that Greyhound should have warned or informed appellant of such a potentially dangerous condition in order that she might take that fact into consideration before purchasing her ticket and leaving St. Petersburg.

For these reasons we reverse and remand this case for reinstatement of the amended complaint and for further proceedings consistent with this opinion.

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

      . Greyhound has not argued that it is relieved from liability because appellant’s injuries resulted from the intervening criminal act of a third party. We note that the test in such a case is whether the possibility or likelihood of such criminal conduct could reasonably have been foreseen. Angell v. Avanzini Lumber Co., 363 So.2d 571 (Fla. 2d DCA 1978); Kenny v. Southeastern Pennsylvania Transp., 581 F.2d 351 (3d Cir. 1978). The last cited case dealt with a criminal attack in a darkened terminal, a situation different from that involved .sub judi-ce and not addressed in this opinion.


text:
    Norris EPPS, a/k/a “Goldie”, Appellant, v. STATE of Florida, Appellee.
    No. LL-174.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1978.
    Norris Epps, in pro. per.
    No appearance for appellee.
   PER CURIAM.

Epps seeks review of the summary denial of his motion to vacate, set aside, or correct sentence. Epps contends he was improperly sentenced as an habitual felony offender under Section 775.084, Florida Statutes (1975). The trial court attached to its order denying the motion the assignments of error filed in Epps direct appeal, Epps v. State, 354 So.2d 441 (Fla. 1st DCA 1978). The assignments of error reflect that this matter was raised as error therein. Accordingly, this matter does not set forth a proper ground for post-conviction relief. Pitts v. State, 355 So.2d 505 (Fla. 1st DCA 1978). The trial court correctly denied Epps’ motion without an evidentiary hearing.

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


author: KEHOE, Judge.

text:
    Marilyn LANGLOIS, Appellant, v. Pierre A. LANGLOIS, Appellee.
    No. 78-278.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1978.
    Rehearing Denied Jan. 3, 1979.
    Yates & Fann and William F. Fann, Jr., Miami Shores, for appellant.
    Thomas F. Pepe, Miami, for appellee.
    Before BARKD.ULL, HUBBART and KEHOE, JJ.
   KEHOE, Judge.

The appellant wife appeals from an order amending a final judgment of divorce and modifying the child support provision. The original final judgment was entered in 1971 and, inter alia, required the respondent/husband to pay child support of $200 per month until that child attained the age of 21, became emancipated or married. The order appealed from vacated the original support provision and required the husband to pay a total of 4 payments in the amount of $175 each toward the child’s educational expenses. No other support payments were required.

An examination of the record reveals that the trial court based its decision to modify the support payments on the ground that the child had reached the age of 18, was a full-time college student and was working part time to support herself. We hold that this is not an adequate basis for modifying the child support payments herein and reverse.

The fact that the child may have reached the age of 18 is not, standing alone, sufficient to justify modifying or terminating child support payments originally ordered in a pre-1973 divorce decree. Daugherty v. Daugherty, 308 So.2d 24 (Fla.1975); Manganiello v. Manganiello, 359 So.2d 26 (Fla. 3d DCA 1978). A showing must be made that the child is self-supporting or otherwise emancipated in order to justify the termination of support under Section 61.14, Florida Statutes (1977), where the husband has the ability to pay. Manganiello v. Manganiello, supra.

We note that the General Master’s Report, which the trial court declined to follow in this instance, expressly found that the respondent was able to make the support payments originally required under the final judgment of divorce and was in substantial arrearage at the time the report was filed. We remand with directions to enter judgment for the wife on the amount in arrearage due her as of the date of the Master’s report. We do not however preclude the husband from showing on remand that the child is now self supporting and no longer requires his support. If so, support payments may be terminated as of the date of emancipation.

As for the husband’s contention that the trial court erred in awarding attorneys fees to the wife, we affirm the award on the basis that on this record no abuse of discretion has been shown. .

Affirmed in part, reversed in part and remanded with directions.


author: BERANEK, Judge.

text:
    Edward Franklin ACKER, Appellant, v. Gail Lynn ACKER, Appellee.
    No. 77-1581.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1978.
    Rehearing Denied Jan.9,1979.

      Arthur M. Wolff, of Wolff & Gora, Fort Lauderdale, for appellant.
    Robert J. O’Toole, Fort Lauderdale, for appellee.
   BERANEK, Judge.

In this post decretal domestic matter the husband/appellant contests an order wherein his child visitation was conditioned on timely payment of child support. Appellant relies upon Hechler v. Hechler, 351 So.2d 1122 (Fla. 3d DCA 1977); Chaffin v. Grigsby, 293 So.2d 404 (Fla. 4th DCA 1974); and Howard v. Howard, 143 So.2d 502 (Fla. 3d DCA 1962), each of which holds that the right to child visitation may not be conditioned upon timely payment of child support. We reverse but take this occasion to comment upon the problem involved.

In the instant situation appellant had not paid child support for approximately three years which was almost the entire time the parties had been divorced. During most of this time appellant clearly had the ability to pay support. Despite his own non-compliance appellant filed a motion to hold his former wife in contempt for her alleged failure to allow child visitation. On the day of the hearing on his motion for contempt, the husband, at long last, tendered a $25.00 payment toward future child support. The husband’s conduct was both willful and intentional and clearly detrimental to the welfare of the infant child. Under such factual settings the above cited cases do not require that the appellant be allowed visitation. The above authorities instead sought to prohibit the placing of inflexible future conditions on the right to visit one’s child. Obviously, the right to visit does not terminate upon an excusable failure to pay child support. Conversely, in the face of a willful and intentional refusal to pay child support which is detrimental to the welfare of the child, the right to child visitation may be terminated. The court’s continuing jurisdiction is available in regard to further application for reinstatement of visitation.

In this case the Court did not terminate the husband’s child visitation but instead conditioned future child visitation on timely payment without regard to the genuine possibility of excusable failure. Although this order was in part invited by the husband’s actions and pleadings, we feel the Court below did err and this matter is thus reversed for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

LETTS and MOORE, JJ., concur.