author: STETTIN, HERBERT, Associate Judge.

text:
    Ervin J. BOOTH, Appellant, v. BASIC ASPHALT & CONSTRUCTION CO., and Great American Insurance Company, Appellees.
    No. 77-2116.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1979.
    Rehearing Denied April 30, 1979.

      Edward H. Hurt, of Hurt & Parrish, Orlando, for appellant.
    Raymond A. Haas, of Haas, Boehm, Brown, P.A., Orlando, for appellees.
   STETTIN, HERBERT, Associate Judge.

Ervin Booth filed a Petition for Rule Nisi in the Circuit Court of Orange County seeking to enforce by writ of execution an Order of the Judge of Industrial Claims requiring Basic Asphalt & Construction Co. and its insurer, Great American Insurance Company, to pay workman’s compensation benefits.

It is undisputed that the compensation order in question was entered on January 18, 1977, had become final, and had not been modified by later order of the Judge of Industrial Claims or the Industrial Relations Commission. By a pleading styled Motion to Dismiss filed in response to the Order to Show Cause, Basic Asphalt and Great American alleged the Petition of Booth was insufficient because proceedings were then pending before both the Judge of Industrial Claims and the Industrial Relations Commission to modify the Order of January 18, 1977. The basis for the proposed modification, as well as the independently asserted defense in the Motion to Dismiss, was that Booth had failed to reveal receipt of Social Security benefits, the amounts of which, together with Booth’s changed physical condition, would necessarily require a reduction in amounts to be paid, and the time it was to be paid, under the Order of January 18, 1977.

No transcript of hearing was made, and for all that appears in the record, the trial judge relied upon these pleadings alone in reaching the conclusion that the issue of modification of the Compensation Order was being litigated before the Florida Industrial Commission. That being so, the Court concluded:

“This is an area of controversy in which this Court does not involve itself in a rule nisi, so long as the matter is properly submitted to the Florida Industrial Commission. It appears that the matter is before the administrative agencies. For that reason the Court declines to issue a rule nisi or to issue a writ of execution at this time. This action is being stayed pending further proceedings before the Florida Industrial Commission.”

Booth appeals, arguing the lower court erred in denying the Rule Nisi. We agree and reverse. Florida Statute § 440.-24(1) governs enforcement of compensation Orders. The statute provides:

“(1) In case of default by the employer or carrier in the payment of compensation due under any compensation order of a judge of industrial claims or order of the commission or other failure by the employer or carrier to comply with such order for a period of ten days after the order has become final, any circuit court of this state within the jurisdiction of which the employer or carrier resides or transacts business shall, upon application by the division or any beneficiary under such order, have jurisdiction to issue a rule nisi directing such employer or carrier to show cause why a writ of execution, or such other process as may be necessary to enforce the terms of such order, shall not be issued, and unless such cause is shown, the said court shall have jurisdiction to issue a writ of execution or such other process or final order as may be necessary to enforce the terms of such order of the judge of industrial claims or commission.”

It has been held that a compensation order is final, for Rule Nisi enforcement purposes, when the time for appeal has run, or until such time as the Judge of Industrial Claims chooses to grant a petition for modification. The filing of a petition for modification does not toll the finality of a compensation order. Grant-Sholk Construction Company, Inc. v. Moore, 282 So.2d 634 (Fla.1973).

In the case before us the response to the Petition for Rule Nisi did not allege anything more than a pending modification dispute before the Industrial Relations Judge and Commission. Until modified by formal order, the initial compensation order was final and enforceable. Grant-Sholk, supra.

Basic Asphalt and Great American also argued below, and again before this Court that the Workmans Compensation Act is largely self effectuating, permitting adjustments in compensation payments to be unilaterally determined by employers and their carriers. The Rule Nisi could not issue, the argument goes, because the factual circumstances upon which the January 18, 1977 Compensation Order was based, had changed. This point has been put to rest in McCormick v. Messink, 208 So.2d 113 (Fla. 2d DCA 1968), and Phoenix Assurance Company of New York v. Merritt, 160 So.2d 552 (Fla. 2d DCA 1964). No unilateral change is permitted of an otherwise enforceable compensation order. Until changed, altered or modified by the Industrial Relations Judge, the Order is required to be enforced by the Circuit Judge under § 440.24, F.S.

The Order Denying Petition for Rule Nisi is reversed and the cause remanded for further proceedings consistent herewith.

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


source: Caselaw Access Project

author: BERANEK, Judge.

license: Public Domain

text:
    Felix GRANADOS, August Urbanek, Steve Urbanek, Harry T. Mangurian, Jr., Jack L. LaBonte and James M. LaBonte, Individually, and d/b/a Hollybrook Condominium Venture, and Wisconsin Real Estate Investment Trust, Appellants, v. A. Irwin MILLER and Anne Miller, his wife, etc., et al., Appellees. A. Irwin MILLER and Anne Miller, his wife, et al., Appellants, v. Felix GRANADOS, August Urbanek, et al., Appellees.
    Nos. 77-1507, 77-1646.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.
    Rehearing Denied April 27, 1979.

      Davis W. Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Laud-erdale, for appellants, Granados, et al.
    Jeffrey E. Streitfeld and Mark B. Schorr, of Becker, Poliakoff & Sachs, P. A., Fort Lauderdale, for appellees, Miller.
   BERANEK, Judge.

These are consolidated interlocutory appeals growing out of a condominium recreational lease suit. At issue is § 718.401(4) Fla.Stat., which provides in relevant part:

“If the unit owner initiates any action . under the lease, the unit owner or the association shall pay into the registry of the court any allegedly accrued rent and the rent which accrues during the pendency of the proceeding, . . .”

The suit below sought to invalidate a condominium recreation lease. Plaintiffs were Mr. and Mrs. Miller and the Condominium Association, both individually and as representatives of the class. The members of the Association and the “class” consisted of all unit owners of the condominium. The defendants were the lessors of the recreational facilities. The Millers were tenants under the rec lease, the Association was not.

Plaintiffs filed a motion to deposit all rent money into the registry of the court pursuant to § 718.401. By order of June 8, 1977, the trial court allowed the Millers to deposit their rent but refused to allow the Association to deposit rents. A few days after entry of the order the Association did in fact deposit some $37,094.40 with the Clerk of the court. The defendants filed a petition for restraining order and a motion for contempt seeking to hold plaintiffs in contempt for depositing the money and seeking to restrain any further deposits. The trial court entered a further order on June 21, 1977, which basically found that the original order of June 8, 1977, was proper and that Mr. and Mrs. Miller could deposit their rent money. The court further ordered that all other rent monies should be returned by the clerk of the court to the depositors and that the depositors (the Association and the class) pay all rent monies to the defendant/landlord.

Both plaintiffs and defendants herein have appealed and cross appealed both orders in every conceivable fashion.

Basically, it is defendant’s position that the trial court should not have allowed even the Millers to deposit their rent money. Defendant contends the statute is facially unconstitutional and asserts five points on appeal in support of this argument.

Plaintiffs’ basic position on appeal is that the trial court erred in refusing to allow the Association to deposit rent monies in view of the mandatory requirements of the Statute.

The constitutional arguments raised by defendants (landlords) were not presented to the trial court or ruled upon by the trial court. Even constitutional issues will not be decided by an appellate court if raised for the first time on appeal. Century Village v. Wellington, 361 So.2d 128 (Fla. 1978). Furthermore, constitutional issues will not be reached if the case can be decided on other grounds. McKibben v. Mallory, 293 So.2d 48 (Fla.1974).

The order here which the defendants contest was essentially favorable to defendants in that it allowed only Mr. and Mrs. Miller, the individual unit owners, to deposit their rents pending the litigation. Such an order would clearly have been authorized by Fla.R.Civ.P. 1.600 as the Supreme Court states in Century Village v. Wellington, supra, at 134. Therefore, this was a discretionary decision which we do not choose to disturb as to the individual unit owners.

As to the points raised by plaintiffs, Century Village v. Wellington is also determinative. Therein, the Supreme Court ruled that this particular statute applied only to unit owners and not to a condominium association. Therefore, the trial court was correct in ruling that the Association could not deposit rents. The orders appealed from are hereby affirmed.

AFFIRMED.

ANSTEAD and LETTS, JJ., concur.

      . Subject to the doctrine of fundamental error. Sanford v. Rubin, 237 So.2d 134 (Fla.1970).


author: PER CURIAM.

text:
    Filemon RAMIREZ, Jr., and Epifania Ramirez, Individually and as husband and wife and as parents of Fesocorro Ramirez, et al., Appellants, v. COMMERCIAL UNION INSURANCE CO., a Foreign Insurance Carrier; Melvin Lee and Michael A. Goeller, Appellees.
    No. 78-831.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Herskowitz & Grossman, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   ON REHEARING

PER CURIAM.

The appellees’ motion for rehearing is granted and our opinion of January 30,1979 is withdrawn.

It is the judgment of this court that the trial court order dismissing Commercial Union Insurance Company as a party defendant be reversed and the cause remanded for further proceedings on the authority of Markert v. Johnston, 367 So.2d 1003 (Fla.1978); Shingleton v. Bussey, 223 So.2d 713 (Fla.1969). The trial court order dismissing the claims of the minor plaintiffs, however, is affirmed. Clark v. Suncoast Hospital, Inc., 338 So.2d 1117 (Fla.2d DCA 1976).


author: PER CURIAM. PER CURIAM.

text:
    T. W. C., Petitioner, v. Dorothy H. PATE, as Judge of the Circuit Court, In and For Duval County, Florida, Respondent.
    No. MM-403.
    District Court of Appeal of Florida, First District.
    March 14, 1979.
    Rehearing Denied April 11, 1979.
    Louis O. Frost, Jr., Public Defender, and Claudia T. Wright, Asst. Public Defender, Jacksonville, for petitioner.
    Dorothy H. Pate, pro se.
   PER CURIAM.

The child T.W.C. petitions for a writ of habeas corpus challenging his detention by the respondent circuit judge by an order entered February 8, 1979, releasing T.W.C. to the custody of his mother but preserving power indefinitely to redetain the child on his failure to comply with stated conditions. The court’s jurisdiction stems from an arrest on December 14, 1978, for carrying a concealed weapon, and an order of nonsecure detention, on conditions, entered December 22, 1978. The 21-day period prescribed for an adjudicatory hearing by Sections 39.01 and 39.032(5)(c), Florida Statutes (1977), elapsed January 5, 1979, without an adjudicatory hearing having been held. In the absence of new grounds for detention, regularly charged and supported by evidence in accordance with Chapter 39, the court was thereafter without jurisdiction to extend the original detention, by means secure or nonsecure, conditional or unconditional. The petition for habeas corpus is GRANTED and T.W.C. is discharged from the custodial effect of the order of February 8, 1979.

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

ON PETITION FOR REHEARING

PER CURIAM.

The writ of habeas corpus ordered by this Court’s opinion filed March 14, 1979, is considered as addressed to Carlton Jones, Du-val Regional Juvenile Detention Center, Jacksonville, Florida, from whose custody petitioner is to be discharged. The motion for rehearing is otherwise DENIED.

ROBERT SMITH, Acting C. J., and ERVIN and MELVIN, JJ., concur.


author: PER CURIAM. DOWNEY, Chief Judge,

text:
    Verner Elston ROWLES, Jr., and the Hartford Accident and Indemnity Company, Appellants, v. Daniel A. WORONWITCH, Appellee.
    No. 77-2338.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1979.
    Rehearing Denied April 17, 1979.
    Frank G. Cibula, Jr., of Law Office of Frank G. Cibula, Jr., West Palm Beach, for appellants.
    Thomas A. Hoadley of Law Offices of Hoadley & Gavigan, P. A., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and BERANEK, JJ., concur.

DOWNEY, C. J., concurs specially, with opinion.

DOWNEY, Chief Judge,

Concurring specially:

The issue involved in this appeal is whether it is reversible error to admit opinion testimony bearing upon one of the material issues in the case from a lay witness. One of the primary questions the jury was called upon to decide was whether appellee had the opportunity to avoid a collision with appellant after appellant had turned his automobile in front of appellee’s motorcycle. The eye witness in question gratuitously stated that there was not enough room for appellee to do anything to miss appellant. No objection was offered to this statement. Shortly thereafter the witness stated, “But at the time I would say he definitely, he didn’t have a chance.” No objection was made to that statement. The witness was then asked, obviously by plaintiff’s counsel, “Do you want to talk right into there? He didn’t have a chance in what way?” At this point for the first time an objection was registered. The trial court overruled the objection. On motion for new trial the trial judge recognized that the testimony in question was “far from harmless.” But for various reasons he felt a new trial was not required.

In my opinion the subject testimony, constituting the expression of an opinion by a layman on one of the vital issues for the jury to decide, was clearly objectionable. As I contended in the special concurrence in Public Health Foundation, etc., v. Cole, 352 So.2d 877 (Fla. 4th DCA 1977), even an expert opinion on such a question is an invasion of the province of the jury. However, by the time an objection was registered the information called for by the question was already in evidence and thus the answer was merely cumulative so that the adverse ruling would not constitute reversible error. In addition, there was no motion to strike the previous improper statements so that a favorable ruling on the question objected to would not have accomplished appellant’s purpose.

For these reasons I feel we are compelled to affirm the judgment appealed from.

      . Numerous cases hold the question calls for an affirmative answer if timely objection is made. A sampling of those cases is: Howland v. Cates, 43 So.2d 848 (Fla.1950); Albers v. Dasho, 355 So.2d 150 (Fla. 4th DCA 1978); Nat’l Car Rental System, Inc. v. Holland, 269 So.2d 407 (Fla. 4th DCA 1972).


text:
    Carmelo GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 76-474.
    District Court of Appeal of Florida, Third District.
    March 19, 1979.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on February 15, 1977 (342 So.2d 557) affirming the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed February 8, 1979, 367 So.2d 1008, and mandate now lodged in this court, quashed this court’s judgment.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on March 31, 1977 is withdrawn, the judgment of this court filed in this cause on February 15, 1977 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment and sentence appealed from herein is reversed and the cause is remanded to the trial court for resentencing. Costs allowed shall be taxed in the trial court (Rule 9.400[b] Florida Rules of Appellate Procedure).


text:
    Robert G. WILCOX, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1239.
    District Court of Appeal of Florida, Third District.
    March 19, 1979.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appellant.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on March 21, 1978 (356 So.2d 887) affirming the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed February 8, 1979, 367 So.2d 1020, and mandate now lodged in this court, quashed this court’s judgment with instructions.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on April 6, 1978 is withdrawn, the judgment of this court filed in this cause on March 28, 1978 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment and sentence appealed from herein is reversed and the cause is remanded to the trial court for proceedings not inconsistent with its opinion. Costs allowed shall be taxed in the trial court (Rule 9.400[b] Florida Rules of Appellate Procedure).


text:
    Richard BOWERS, Appellant, v. The CITY OF MIAMI BEACH, Consolidated Mutual Insurance Company, Harry Hoffner, Colonial Pennsylvania Insurance Company, Arthur Godfrey Road Association, and Donald L. Chaney, d/b/a Don Display Service, Inc., Appellees.
    No. 78-542.
    District Court of Appeal of Florida, Third District.
    March 20, 1979.
    Rehearing Denied April 26, 1979.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Coconut Grove, Cohen & Cohen, Miami Beach, for appellant.
    Brumer, Moss, Cohen & Rodgers, Daniels & Hicks and Sam Daniels, Miami, for appel-lees.
    Before SCHWARTZ, J., and CHARLES CARROLL (Ret.) and EZELL, BOYCE F., JR., (Ret.), Associate Judges.
   PER CURIAM.

This appeal is from a summary judgment granted to the City of Miami Beach and its liability insurer, two of the defendants in an action brought by the appellant for damages for personal injuries.

Appellant contends, and we so hold, that the entry of summary judgment for said defendants was error, for the reason that there were presented genuine issues of material fact that properly were not subject to resolution by summary judgment. Included was an issue as to whether the defendant city, by stringing or suspending varicolored Christmas decoration lights at the involved intersection (where traffic was controlled by lights) had obscured the traffic lights or created a colored light situation which was such as to reasonably confuse a driver using the intersection as to the status of the light signals.

The summary judgment is reversed, and the cause is remanded for further proceedings.


text:
    Lorna D. ROBERTSON, Appellant, v. Richard Karl GOETHEL and Benjamin Sardinas, Appellees.
    Nos. 78-768, 78-805.
    District Court of Appeal of Florida, Third District.
    March 20, 1979.
    Rehearing Denied April 23, 1979.
    Friedman, Britton, Cohen, Kaufman, Zin-kow, Benson & Schantz and J. Robert Olian, Miami, for appellant.
    Goethel & Garcia-Vidal and Richard Karl Goethel, Coral Gables, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

This is an action by an attorney [Richard Karl Goethel] and an accountant [Benjamin Sardinas] against a former client [Lorna D. Robertson] for monies due and owing for professional services rendered based on a written contract, quantum meruit and an account stated. The trial court entered final summary judgments for the attorney and accountant on the amount due and owing plus interest. The client appeals.

Our review of the record reveals that the final summary judgments were properly entered. All agree, and the undisputed evidence in the record shows, that the client herein engaged and thereafter accepted professional legal and accounting services from the plaintiffs herein which were competently rendered over an extended period of time, that the client paid periodically without protest on various bills sent by the attorney and accountant for such professional services, and that the outstanding fees presently due and owing to the attorney and accountant are admittedly reasonable and not excessive. In view of this showing, it is clear that there were only paper issues left to be decided in the cause, that there were no genuine issues of material fact, and that the plaintiffs were entitled to judgment as a matter of law. See Reflex, N. V. v. UMET Trust, 336 So.2d 473, 474-75 (Fla. 3d DCA 1976); Shafer & Miller v. Miami Heart Institute, Inc., 237 So.2d 310, 311 (Fla. 3d DCA 1970); Kochan v. American Fire & Casualty Co., 200 So.2d 213, 220 (Fla. 2d DCA 1967); Fla.R.Civ.P. 1.510(a), (c).

Affirmed.

HENDRY, J., dissents.


author: KEHOE, Judge.

text:
    The STATE of Florida, Petitioner, v. Charles BRODSKI, Robert Berzak, Eric Littman, Richard Gabor and Andrew Levine, Respondents.
    No. 78-2349.
    District Court of Appeal of Florida, Third District.
    March 20, 1979.
    Rehearing Denied April 26, 1979.
    Janet Reno, State’s Atty. and Ira N. Lo-ewy, Asst. State’s Atty., for petitioner.
    Black & Denaro and Roy E. Black, Flynn, Rubio & Tarkoff, Melvin S. Black, Miami, for respondents.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

This is a petition for writ of common law certiorari brought by the State of Florida seeking to review an order granting the respondents’ motions to quash subpoenas. We grant the petition and quash the order.

Pursuant to the power granted to the State Attorney by Section 27.04, Florida Statutes (1977), the five respondents, all law students at the University of Miami, were subpoenaed to testify before the State Attorney. The respondents were to be questioned in regard to the pending prosecution styled State of Florida v. Bernard J. Krabacker, an investigation into criminal drug activities at the University of Miami Law School, and about their personal drug use and the drug use of other students at the University. By complying with the subpoenas, respondents were to be given complete immunity from criminal prosecution pursuant to the provisions of Section 914.04, Florida Statutes (1977). In response to these subpoenas, respondents filed motions to quash the subpoenas. After a hearing on their motions, the trial court entered an order providing, among other things, for the quashing of the subpoenas. From this order dated November 3, 1978, petitioner brought the instant petition for common law writ of certiorari.

The basic contention of petitioner is that the trial court departed from the essential requirements of law by granting respondents’ motions to quash because they had no right to immunity other than from criminal prosecution.

Both petitioner and respondents agree that respondents, pursuant to the subpoenas issued to them, were entitled to immunity from criminal prosecution. However, it is respondents’ position that pursuant to Section 914.04, Florida Statutes (1977), they should also be granted disciplinary immunity from The Florida Bar in regard to any matters concerning their testimony or evidence produced pursuant to their subpoenas.

In the light of the Supreme Court of Florida’s recent decision in Ciravolo v. The Forida Bar, 361 So.2d 121 (Fla.1978), we believe that respondents’ reliance on Section 914.04 is misplaced. In Ciravolo, at 124, the Supreme Court held “. that a grant of immunity under Section 914.04 does not immunize attorneys from disciplinary proceedings instituted or imposed by or under authority of the rules of this court.” [This includes proceedings by The Florida Bar.] The effect of Ciravolo is to remove disciplinary immunity from Section 914.04 as it relates to attorneys, as opposed to other disciplines. Certainly respondents as law students and aspirants to become attorneys have no greater immunity under this Section than attorneys. All that is required by statute or otherwise is that respondents be given criminal immunity for their testimony; here, such immunity was given. However, we note that the effect of Ciravolo is not to foreclose any disciplinary immunity from respondents, but to make it available by application to and by order of the Florida Supreme Court. Ciravolo at 125.

To reiterate, when attorneys are subpoenaed to testify before a State Attorney and are granted immunity, they should recognize that the grant of immunity runs to criminal prosecution and not to disciplinary proceedings by The Florida Bar, unless such disciplinary immunity is granted by the Florida Supreme Court.

We note that because of the procedural posture of this matter before us, the record is sparse. We do not know, for example, what questions were to have been asked appellants or what their answers might have revealed. However, we also note that petitioner has at all times relevant herein offered respondents immunity from criminal prosecution for their testimony.

Because of our determination set forth above, we find it unnecessary to discuss the other contentions presented by this petition. Accordingly, the petition for common law writ of certiorari is granted and the order of the trial court quashing the subpoenas is quashed.

Granted.


author: MOORE, Judge.

text:
    Peter A. VOLPITTA, Appellant, v. Donna Ruth FIELDS, Appellee.
    No. 78-192.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1979.
    Rehearing Denied April 26, 1979.

      Bruce E. Chapin, Orlando, for appellant.
    Robert G. Murrell, of Sam E. Murrell & Sons, Orlando, for appellee.
   MOORE, Judge.

This appeal stems from a rather confusing complaint and procedural methodology. The appellee, Donna Ruth Fields, is the former wife of the appellant and holds a final judgment against the appellant in the amount of $1,011.77 which amount was the sum for home improvements for which appellant was responsible. In a one count complaint Mrs. Fields sought to set aside a conveyance of real property as being a fraud upon creditors and additionally sought damages for conspiracy to defraud creditors. The damages sought were Mrs. Fields’ attorney’s fees incurred as a result of commencing the suit to set aside the alleged fraudulent conveyance.

The cause was tried before a jury which assessed Mrs. Fields “actual damages” at $2,100.00 and punitive damages at $400.00 notwithstanding the lack of a prayer for punitive damages. Although Carmen A. Volpitta and Dorothy L. Volpitta, parents of the appellant, Peter A. Volpitta, were parties to the litigation the verdict was solely against the appellant, Peter A. Vol-pitta. No verdict was rendered with regard to Carmen and Dorothy Volpitta, nor was any judgment entered either in favor of or against the latter persons. On the basis of the verdict the court entered final judgment for Mrs. Fields in the amount of the verdict plus costs, plus an amount identical to the previous judgment of $1,011.77 with interest from the date of that judgment. Final judgment further allowed the appellant a period of ten days within which to pay the total of said sums, failing which appellee was allowed to proceed to levy execution against the real property which had been transferred. The transfer was not set aside.

Appellant and Mrs. Fields were formerly husband and wife. Appellant remarried and lived on the premises involved herein with his new wife (until her demise) and their child. Thereafter Mrs. Fields obtained final judgment for $1,011.77 against the appellant. Between the announcement of the final judgment in open court and the time that it was rendered in writing the appellant transferred title to his home to his mother and father by quitclaim deed without consideration. It was this transfer which Mrs. Fields sought to set aside. Appellant contends the real property was his homestead and therefore not subject to a judgment creditor’s lien.

Appellant, his child by his second marriage, and his mother and father resided on the subject real estate at the time of its conveyance and prior to the existence of the final judgment held by the appellee, Mrs. Fields. Our review of the trial testimony reveals that appellant was employed and supported his child. He derived sole title to the real estate, which had formerly been held as tenants by the entireties with his second wife, upon his second wife’s demise. In all respects the evidence clearly established the premises involved as the appellant’s homestead.

Although money judgments are statutory liens upon the real estate of the defendant in the county where such judgments are recorded, no judgment can be a lien upon homestead property if the property acquired homestead exempted status pri- or to the existence of the judgment lien. Milton v. Milton, 63 Fla. 533, 58 So. 718 (1912). A judgment creditor therefore acquires no rights in homestead property and the judgment debtor can only commit fraud on his judgment creditors by disposing of such property as the creditor would have a legal right to look to for satisfaction of his claim. Sneed v. Davis, 135 Fla. 271, 184 So. 865 (1938). Quoting from 27 C.J. 438 the court in Sneed stated:

“[H]ence a sale, gift or other disposition of property which is by law absolutely exempt from the payment of the owner’s debts cannot be impeached by creditors as in fraud of their rights. Creditors have no right to complain of dealings with property which the law does not allow them to apply on their claims, even though such dealings are with a purpose to hinder, delay or defraud them.” At 868.

Thus, if the property is exempt as homestead property, as it was in the instant case, the owner thereof can transfer title to the property without committing a fraud upon his judgment creditor irrespective of his motivation. In the ease at bar it was unnecessary for appellant to convey the property in order to avoid the availability of his homestead to answer the claims of his creditors. There being no fraud in the conveyance there can thus be no conspiracy to commit fraud. The judgment therefore must be reversed.

Disposing of this case as we do we find it unnecessary to determine whether or not there exists in Florida a cause of action for damages for conspiracy to commit fraud upon creditors. We also find it unnecessary to consider the other points raised on appeal.

The final judgment is reversed and this cause is remanded to the trial court with directions to enter final judgment for the appellant.

REVERSED and REMANDED.

DOWNEY, C. J., and FARRINGTON, OTIS, Associate Judge, concur.

      . The parties to this appeal have not provided us with a transcript of the jury instructions.


author: ERVIN, Judge.

text:
    AMERICAN ARLINGTON BANK, a State banking corporation, Appellant, v. Joseph H. COHEN, Robert L. Cohen and Emma J. Cohen, as Trustees for J & J Galleries, Inc., a dissolved Florida corporation, and Joseph H. Cohen and John E. Graham, Appellees.
    No. JJ-97.
    District Court of Appeal of Florida, First District.
    March 22, 1979.
    Rehearing Denied April 30, 1979.

      Chauncey W. Lever, Jr., of Franson, Brant, Dearing & Moore, P. A., Jacksonville, for appellant.
    David U. Tumin, Robert V. Palmer, Jacksonville, for appellees.
   ERVIN, Judge.

In March, 1974, appellant American Arlington Bank agreed to consolidate a past due note and another demand note of appel-lee Cohen’s into one demand note totaling approximately $7,400.00. Cohen and another individual had previously executed a third demand note, for $10,000.00, to Arlington. To secure all of Cohen’s obligations, the parties signed a bailment agreement, on September 21, 1974, making Arlington bailee of Cohen’s painting of King George III of England, allegedly one of three portraits of the king by the 18th century painter, George Ramsey, and appraised at $37,500.00. Arlington agreed as follows:

1. To display the above property in the lobby of the AMERICAN ARLINGTON BANK located in Jacksonville, Florida, for as long as and in any manner, the Bailee desires during the life of the aforementioned loans.
2. To return the property upon payment of the loans secured by the painting, but Bailee shall not be liable for loss, or injuries to property by fire or theft or any reason whatsoever, or otherwise by act of God, or otherwise than for damage resulting from fraud or gross negligence.
3. To insure the aforementioned property in some reputable insurance company, for the period of this Agreement for its full value.
4. To keep insured said property as full value against loss or damage by fire, burglary, holdup, or robbery, according to standard form of policy, until property is returned to bailor.

The painting was hung in the glass-enclosed office of one of Arlington’s vice-presidents, while there its surface was scratched. Cohen defaulted on the notes and Arlington sued. Cohen answered with affirmative defenses, which the trial judge struck, and counterclaimed seeking specific performance of an oral contract, damages for fraud, negligence, gross negligence and breach of the bailment agreement by Arlington’s failure to insure the painting and to hang the painting in its lobby.

The trial court directed a verdict in favor of Arlington on its complaint and on all counts of Cohen’s counterclaim except Count III, which alleged breach of the bailment agreement due to Arlington’s failure to hang the painting in its lobby. That issue went to the jury, which returned a verdict in favor of Cohen, assessing damages at $37,500.00, the amount at which the painting was appraised.

Arlington argues, and we agree, that the trial court erred 'in refusing to direct a verdict on Count III of Cohen’s counterclaim. The bailment agreement clearly states that Arlington was to have complete control over the location and manner of display of the painting. The intention of the parties to an unambiguous, written contract is to be determined from the writing itself. Azalea Park Utilities, Inc. v. Knox-Florida Development Corp., 127 So.2d 121, 123 (Fla. 2d DCA 1961); Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957).

On cross-appeal, Cohen argues that the trial court erred in striking his affirmative defenses alleging (1) that Arlington was equitably estopped from enforcing payment on the note because it had not consolidated the note with another, as agreed; (2) that Arlington fraudulently agreed to consolidate the notes; (3) that Arlington was guilty of negligence and gross negligence in its care of the painting, and was estopped from enforcing the note because its actions had diminished the painting’s value; (4) that Cohen timely tendered payments and interest and, therefore, Arlington was es-topped. We agree with Arlington that the allegations did not refer to Cohen’s obligations on the promissory notes, with the exception of the last one, which we observe was not supported by the record and which set out no facts justifying estoppel. The other defenses were properly struck since they alleged separate causes of action. Additionally, the affirmative defenses were realleged in Cohen’s counterclaim, where they were not struck, although the trial court directed a verdict against Cohen on all counts except Count III. Cohen has not appealed the directed verdict.

This case is reversed and remanded with instructions to the trial judge to direct a verdict for Arlington on Count III of the counterclaim.

MILLS, Acting C. J., and MASON, ERNEST E., Associate Judge, concur.

      . Cohen’s argument on cross-appeal, that the trial court erred in striking his claim for punitive damages, is irrelevant, since we have sustained in this opinion Arlington’s point on appeal that it did not breach the bailment agreement. Even if we accepted Cohen’s argument that the agreement was ambiguous, and that Arlington breached its terms, the alleged breach could not have been shown to be “a tort which was wilfully and wantonly committed or was attended by fraud, malice, or gross negligence.” Charter Air Center, Inc. v. Miller, 348 So.2d 614, 616 (Fla. 2d DCA 1977).


author: MELVIN, Judge.

text:
    STATE of Florida, Appellant, v. Patrick Shawn SOUTHWELL, Appellee.
    No. JJ-218.
    District Court of Appeal of Florida, First District.
    March 23, 1979.
    Rehearing Denied April 30, 1979.

      Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellant.
    Carlton P. Maddox of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellee.
   MELVIN, Judge.

The appellant, the State of Florida, brings its timely interlocutory appeal to review an order granting appellee Southwell’s motion to suppress evidence of contraband found in his overnight bag. We will refer to the parties as they were positioned in the trial court.

The defendant was a passenger on an airplane in flight from Miami to New York, when a stewardess noticed that he was unconscious. Her efforts to revive him having failed, she then checked the defendant’s pockets for a medical alert tag or medicine, but instead found a plastic baggie containing a white substance. There was a doctor aboard the plane who, upon checking the passenger, advised the captain to arrange an immediate landing so that the defendant could be given emergency care. The captain changed the course of the plane and landed in Jacksonville. When the plane landed, the defendant was still unconscious. He was removed by a wheelchair onto a jetway ramp. The stewardess turned the baggie over to a police officer who was at the ramp. The defendant’s overnight bag, which had been placed by him in a compartment near his seat, was also removed by the rescue squad and placed on the ramp near the defendant. The defendant, some 15 minutes later, regained consciousness. A short time thereafter, the defendant requested permission to board the airplane to resume his flight, and this request was denied. Although he was not under arrest at this time, he was detained by the officers and airport security personnel. He was escorted to the airport security office where the white substance contained in the plastic baggie, suspected by the officers to be cocaine, was given a field test by vice officers. Meanwhile, the defendant had possession of his overnight bag, which he carried to the security office. When the white substance had been given the field test, the result showed the presence of cocaine. The defendant was then placed under arrest for the unlawful possession of a controlled substance and was given the usual “Miranda warnings”.

The defendant was then advised that he would be carried down to the jail, and he asked if he could deposit the overnight bag in one of the lockers at the airport. This request was refused by one of the officers who told the defendant that it would be better for him to keep it since the officer did not anticipate the defendant would be at the jail very long, and that he would have it with him when he came back to the airport to resume his flight. According to the testimony of one of the officers, the defendant agreed, picked up his bag and carried it out of the airport. Although this officer testified that he did not really suspect there was anything in the overnight bag, he gave the following response to the prosecuting attorney’s following question:

“Q. What if he had said T want to check it’. What would you have done?
“A. We would probably let him check it, then gotten a search warrant.”

The defendant’s overnight bag was placed in the trunk of the officer’s car. After a routine stop at a hospital, the defendant was booked at the jail. During the booking process, an officer removed the defendant’s bag from the trunk of the police car and brought it into the jail. The officer testified that he had made an inventory of the contents of the overnight bag and came upon two one-pound bags of cocaine in said overnight bag belonging to the defendant.

The defendant filed a motion to dismiss the information charging unlawful possession of a controlled substance and also filed a motion to suppress evidence as to the plastic baggie the stewardess removed from his pocket and as to the contents of his overnight bag discovered as above set forth. Several depositions were taken in connection with the pending motions. The court entered its order denying the defendant’s motion to dismiss the information, to suppress the evidence with reference to the plastic bag and contents removed from his pocket, and granted the defendant’s motion as to evidence of any contraband found in his overnight bag.

The defendant’s interlocutory appeal addressed to that portion of the order denying his motion to suppress evidence as to the plastic bag and contents has been dismissed by this court for lack of jurisdiction to consider the same.

We are not here concerned with what the law may have been with reference to a search of the defendant’s overnight bag had such a search been made at the time the officers discovered the presence of the cocaine in the baggie removed from the defendant’s pocket, or if the search had been made within a reasonable period of time thereafter at the premises of the security office as an incident to the arrest of the defendant for the unlawful possession of cocaine. We have an entirely different factual situation. The officers had complete control of the overnight bag, such control on the part of the officers was exclusive and under such circumstances that it would have been impossible for the defendant to have any access to the bag for any purpose. There was no danger that anyone acting in his behalf could open the bag for any purpose. So, we simply have the question whether under such circumstance, there being a complete absence of exigent circumstances, a warrantless search of personal baggage is constitutionally permissible. We perceive that the answer to this question is discoverable in United States v. Chadwick, et al., 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). In that case, the defendants were observed loading a brown footlocker on a train that was bound from San Diego to Boston. The railroad officials’ suspicions were aroused when they noticed that the trunk was unusually heavy for its size and that it was leaking a powdery substance. The officials reported the information to federal agents in San Diego who, in turn, relayed the information, along with the description of the defendants and that of the footlocker, to federal agents in Boston. Upon the arrival of the train in Boston, federal narcotic agents were present. They had no arrest warrant or search warrant, but did have a dog trained to detect marijuana. When the defendants claimed the footlocker, the agents released the dog, and the dog signaled the presence of a controlled substance inside such locker. When the defendants had placed the footlocker in the trunk of an automobile, the officers appeared and arrested them.

The Government conceded that from the moment of the time of the defendants’ arrest, the footlocker was under the exclusive control of the law enforcement officers and that later the same had been placed in a federal building where there was no risk that anyone could remove any of the contents of the footlocker. There was no contention made that there was any exigency calling for an immediate search. About an hour and a half following the arrest, the agents, without a search warrant, opened the footlocker and luggage. This was done without the defendant’s consent and without a search warrant. The footlocker contained large amounts of marijuana. The defendants were indicted for possession of marijuana with the intent to distribute it in violation of the applicable federal code. They moved to suppress evidence of the marijuana obtained from the footlocker. At the suppression hearing, the government attempted to justify its failure to secure a search warrant under the “automobile exception” of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and as a search incident to the arrest. This contention was rejected by the District Court, holding that “warrantless searches are per se unreasonable, subject to a few carefully delineated and limited exceptions”. 393 F.Supp. 763, 771 (Mass.1975). The court observed that the relationship between the footlocker and the defendant’s automobile were merely coincidental and that the double-locked 200 pound locker was not part of “ ‘the area from within which [respondents] might gain possession of a weapon or destructible evidence’ ”. The case was reviewed by the First Circuit Court of Appeals and a divided court affirmed the suppression of the seized marijuana. 532 F.2d 773 (1st Cir. 1976). The Court of Appeals observed that the footlocker was properly in federal custody following the defendants’ arrest, and that the agents had probable cause to believe that the footlocker contained a controlled substance when they opened it. The court then observed that such probable cause alone was not enough to sustain a warrant-less search.

We note that in the case here under review, the officer stated that he did not have probable cause to believe that any unlawful substance was in the defendant’s overnight bag, but nevertheless, when asked what he would have done if the defendant had insisted on checking the bag in a locker, replied: “We would probably let him check it, then gotten a search warrant.” (emphasis supplied). It is thus illustrated that the officer considered that he had probable cause to obtain a search warrant from one of the judicial officers of Duval County.

In Chadwick, the United States Supreme Court rejected the Government’s argument that the rationale of automobile search cases was a proper rule to apply to a war-rantless search of baggage for Fourth Amendment purposes. The Court 433 U.S. at page 12, 97 S.Ct. at page 2484 held:

“The answer lies in the diminished expectation of privacy which surrounds the automobile:
‘One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. ... It travels public thoroughfares where both its occupants and its contents are in plain view.’ ”

The Court then stated at p. 13, 97 S.Ct. at p. 2484:

“The factors which diminish the privacy aspects of an automobile do not apply to respondents’ footlocker. Luggage contents are not open to public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary functions is transportation, luggage is intended as a repository of personal effects. In sum, a person’s expectations of privacy in personal luggage are substantially greater than in an automobile.”

The Court then observed at p. 15, 97 S.Ct. at pp. 2485-2486:

“ . . . Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.
Here the search was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency. Even though on this record the issuance of a warrant by a judicial officer was reasonably predictable, a line must be drawn. In our view, when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority. Respondents were therefore entitled to the protection of the Warrant Clause with the evaluation of a neutral magistrate, before their privacy interests in the contents of the footlocker were invaded.”

No one suggests in the case here reviewed that at all times material there was no judicial officer in Duval County to whom an appropriate application for a search warrant could be reasonably addressed. To prepare such an affidavit and to cause the same to be brought on for judicial consideration involves, we recognize, a certain amount of the officer’s time and perhaps an inconvenience to the officer. Constitutionally protected rights, however, may not be brushed aside for such considerations.

The able trial judge was eminently correct, and the order suppressing the evidence is hereby AFFIRMED.

McCORD, C. J., concurs.

BOOTH, J., dissents.


text:
    John P. K. MILLER, Appellant, v. Patricia Shaw MILLER, Appellee.
    No. KK-495.
    District Court of Appeal of Florida, First District.
    March 23, 1979.
    John Peter Kirtz, Jr., Pensacola, for appellant.
    Larry Hill, Pensacola, for appellee.
   PER CURIAM.

Appellant, former husband of appellee, seeks review of an order holding him in contempt of court for failure to pay a lump sum alimony award as ordered by the trial court in a dissolution of marriage proceeding. The contempt order lacks the affirmative findings required by Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976). Accordingly, the order appealed from is reversed and the cause remanded to the trial court to make the necessary affirmative finding, if supported by the record herein, or, otherwise, to vacate the order of contempt.

Reversed and remanded.

MILLS, Acting C. J., ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    GADSDEN STATE BANK, Appellant, v. DEPARTMENT OF BANKING AND FINANCE and Quincy State Bank, Appellee.
    No. JJ-392.
    District Court of Appeal of Florida, First District.
    March 27, 1979.
    Rehearing Denied April 30, 1979.
    David A. Barrett, of Barrett, Boyd & Bajoczky, Tallahassee, for appellant.
    William L. Lyman, Asst. Gen. Counsel, Tallahassee, for the Office of the Comptroller, and Alexander L. Hinson, of Lines, Hin-son & Lines, Quincy, for appellee.
   PER CURIAM.

Gadsden State Bank alleges that the hearing officer committed error in admitting certain evidence. However, after consideration of the briefs and the record on appeal, appellant has failed to demonstrate that the “fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure” or that the “agency’s action depends on any finding of fact that is not supported by competent substantial evidence in the record.” § 120.68(8) and (10) Fla.Stat. (1977). Appellant’s remaining point is without merit. Accordingly, the order of the agency is AFFIRMED.

MILLS, Acting C. J., ERVIN, J. and MASON, ERNEST E., Associate Judge, concur.


text:
    John T. SIMPSON, Jr., et al., Appellants, v. Roy G. YOUNG, Appellee.
    No. KK-356.
    District Court of Appeal of Florida, First District.
    March 27, 1979.
    Ken Davis of Davis & Judkins, Tallahassee, for appellants.
    James C. Truett of Truett & Oertel, P.A., Tallahassee, for appellee.
   PER CURIAM.

Peele and Simpson appeal a judgment awarding Young $41,660 as Young’s one-third interest in the professional association previously composed of the three parties. Appellants allege that the trial court erred in determining this amount since the court effectively rewrote the shareholder’s agreement. Appellants also claim the court erred in finding that there was no compromise and settlement. We agree on the first point and reverse.

In June of 1974, Young, Simpson and Peele formed a professional association and entered a shareholder’s agreement which was drawn up by attorneys representing the association. The agreement provided that in the event of retirement the stock would be purchased by the corporation at a purchase price to be determined as follows: (a) 90% of one-third of the accounts receivable as of the date of retirement, omitting any receivables which shall have been referred for collection (b) one-third of the fair market value of all the equipment and furnishings and (c) a factor for good will equal to $1,000 per year for each year of practice not to exceed $15,000. This amount was payable one year from the date of retirement and no payment would be forthcoming if the retiring stockholder resumed practice within one year. Later Young sought to withdraw from the P.A. and in March 1976, the partners held a meeting to determine the monies owed Young. A figure of $35,000 was agreed upon. However, while Peele, Simpson and Costin testified that the settlement included a factor for good will, Young testified that good will was not included in the settlement. The trial court found that there was sufficient confusion surrounding the March 1976 settlement discussion to have permitted separate conclusions as to what had been agreed upon. Therefore, he found that there was no compromise and settlement. Thereafter, the trial court settled the claims of the parties based upon the shareholder’s agreement. He interpreted the term “accounts receivable”, in the agreement, to include “cash on hand minus liabilities.” Since a settlement of $35,000 had already been paid, it was determined that a balance of $6,660 was owed to Young.

It was within the trial court’s province to determine the credibility of the witnesses and to determine the weight of the evidence. Accordingly, although this court may have found that there was a compromise and settlement of all claims at the March 1976 meeting, we will not disturb the trial court’s contrary finding. See Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972).

Since the trial court determined that there was no compromise and settlement, it was bound to apply the written contract of the parties. The trial court effectively rewrote the agreement by interpreting accounts receivable to include cash on hand less liabilities. “Accounts receivable” ordinarily means “a balance due from a debtor on a current account”. Webster’s New Collegiate Dictionary (1st ed. 1977). We have failed to discover any definition permitting the interpretation that accounts receivable includes cash on hand. We recognize that the trial court sought to fairly divide the P.A.’s assets so as to award Young his one-third interest. However, by reconstructing the contract of the parties to accord with what he deemed to be the equities of the situation, the trial court ignored the well settled rule that the courts may not rewrite a contract or interfere with the freedom of contract or substitute their judgment for that of the parties thereto in order to relieve one of the parties from the apparent hardship of an improvident bargain. Home Development Company of St. Petersburg v. Bursani, 178 So.2d 113 (Fla.1965). Accordingly, the judgment of the trial court is reversed and the cause is remanded for the entry of a judgment consistent with this opinion.

MILLS, Acting C. J., MASON, ERNEST E., Associate Judge, and ERVIN, J., concur.


text:
    Aubrey Edward HARVILLE, Appellant, v. Jeanette E. HARVILLE, Appellee.
    No. KK-360.
    District Court of Appeal of Florida, First District.
    March 27, 1979.

      Robert R. McDaniel, Pensacola, for appellant.
    James A. Hightower of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, P.A., Pensacola, for appellee.
   PER CURIAM.

Appellant, former husband of appellee, seeks review of an order increasing child support and alimony payments to appellee entered upon appellee’s Petition to Modify Alimony and Child Support.

Appellant contends the trial court erred by allowing into evidence and considering, over objection, testimony concerning appellant’s successive wife’s income. In Paragraph One (1) of the order appealed from, the trial court found that:

1. . [Tjhere has been a material change in the financial position of the respondent, Aubrey Edward Harville, in that he has remarried and undertaken additional obligations, but since April 1, 1976 his income has also increased as shown by the evidence.

From this order, it is unclear whether the trial court relied upon the evidence of appellant’s successive wife’s income to support his finding that appellant’s income had increased. Such reliance would have been clearly erroneous. Condon v. Condon, 295 So.2d 681 (Fla. 1st DCA 1974). However, without consideration of appellant’s successive wife’s income, there was evidence to support the trial court’s findings. The totality of the circumstances clearly support the trial court’s order. Accordingly, the order appealed from is AFFIRMED.

Appellee’s motion for appellate attorney’s fees is provisionally granted and the cause is remanded to the trial court to determine the appropriate amount in accordance with Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

MILLS, Acting C. J., ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Dennis R. O’NEIL, Appellant, v. The LORAIN NATIONAL BANK, a banking association, Appellee.
    No. LL-209.
    District Court of Appeal of Florida, First District.
    March 27, 1979.

      Ronald A. Carpenter, Gainesville, for appellant.
    Peter K. Sieg, Gainesville, for appellee.
   PER CURIAM.

O’Neil appeals a judgment awarding him, in part, the interest paid by O’Neil to Lo-rain National Bank on a note and mortgage which violated the balloon mortgage statute. § 697.05 Fla.Stat. (1977). O’Neil argues that he is also entitled to an award of the interest paid by his predecessor mortgagor. Lorain National Bank cross appeals and argues that the statute of limitations bars the action. § 95.11(6) Fla.Stat. (1973). Appellee also alleges that Section 697.05(4) Florida Statutes (1977) predicates liability upon persons violating the statute and that, as a transferee of the note and mortgage, it is not liable for having failed to place the proper legend on the mortgage. § 697.05(2) Fla.Stat. (1977). We affirm.

On December 11, 1972, the Sungs executed a note and mortgage prepared by and in favor of the Commonwealth Corporation. The mortgage did not contain the legend required by Section 697.05(2) and was not a first mortgage. The balloon payment was due on December 1, 1977. On September 9, 1974, the Sungs conveyed the real property secured by the lien to O’Neil. On March 6, 1975, Commonwealth assigned the note and mortgage to the National Mortgage Fund and there was a further assignment to ap-pellee on November 12, 1975. Interest payments had been made by both the Sungs and appellant. On January 20, 1978, O’Neil filed an action for declaratory judgment. The final judgment provided that: O’Neil recover the interest paid by him to appellee; the maturity date of the note and mortgage be extended; and that appellee forfeit the reserved interest.

We adopt the reasoning of the trial court which found that:

It is unclear from the language of the statute [Section 697.05(4)] whether the legislature intended to limit the forfeiture to interest paid or charged to the complaining party or whether it was intended that the forfeiture extend to interest paid by the complainant’s predecessors. Under the rule of strict construction of such statutes, since the legislative intent does not clearly appear from unequivocal language as applied to the facts in this case, it must be held that the interest to be forfeited is limited to that actually paid by the plaintiff to the defendant.It seems unlikely that one could be expected to forfeit that which he does not possess or has received. It seems unreasonable therefore to assume or infer that the legislature intended the forfeiture of interest not received by or accrued to the assignee of a mortgage under the facts applicable to this case.

Furthermore, we think this result is in accord with the rationale in Winner v. Westwood, 237 So.2d 151, 153-154 (Fla.1970) which upheld the constitutionality of the balloon mortgage statute, but also stated that “[t]he forfeiture of interest is a stringent penalty and its application ought not to extend to properties outside the purview of the statute.” Similarly, the forfeiture of interest by the present mortgagee ought not to extend to interest not actually received unless this result is clearly within the purview of the statute, which it is not.

The trial court further reasoned that the forfeiture of interest was not barred by Section 95.11(6) Florida Statutes (1973). The court analogized the balloon mortgage statute with a similar provision in the usury statute, Section 687.04, Florida Statutes (1977). Citing Vance v. Florida Reduction Corporation, 263 So.2d 585 (Fla. 1st DCA 1972), cert. denied, 267 So.2d 330 (Fla.1972), the trial court found that O’Neil was entitled to a forfeiture in either the event of interest paid or interest reserved or interest contracted for and, having elected to sue for interest paid, the statute of limitations did not begin to run until the maturity date of the contract, December 1, 1977.

Finally, we hold that the balloon mortgage statute is applicable to Lorain National Bank. Section 697.05(4) states in part:

Any mortgagee, creditor, bonafide holder, assignee, transferee, endorsee, or any agent, officer, or other representative of any such person violating the provisions of this section shall forfeit the entire interest charged, contracted to be charged or reserved under any such mortgage written in violation of this section, and only the principal sum of such mortgage can be enforced in any court in this state, either at law or in equity.

Here, Lorain National Bank was clearly “any assignee” or “transferee”.

The judgment of the trial court is AFFIRMED.

MILLS, Acting C. J., ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


author: BARKDULL, Judge.

text:
    MAIN INSURANCE COMPANY, Appellant, v. BRADFORD, WILLIAMS, McKAY, KIMBRELL, HAMANN & JENNINGS, P. A., Appellee.
    No. 78-852.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Rehearing Denied April 26, 1979.

      Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and R. Owen Ricker, Jr., Miami, for appellee.
    Before HAYERFIELD, C. J., and PEARSON and BARKDULL, JJ.
   BARKDULL, Judge.

After the defendant insurance company was served with process in a common law action, it voluntarily sought the appointment of a rehabilitator under the Illinois Uniform Insurers Liquidation Act, and the Director of Insurance of the State of Illinois was appointed as rehabilitator of Main Insurance Company. Thereafter, an ancillary rehabilitator [or receiver] was named in Florida, pursuant to Section 631.071, Florida Statutes (1977). The Illinois rehabi-litator then received an order from the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, staying all further proceedings against Main Insurance Company for a period of ninety days and requiring the rehabilitator to file a report thereafter. No such report was ever filed in the trial court in the instant case subsequent to the ninety days. The original plaintiff proceeded with discovery and the Illinois rehabilitator employed counsel to represent Main Insurance. After the final hearing was concluded, the trial court joined the rehabilitator as a party to the action. This appeal ensued by Main Insurance Company, with the contention that the trial court erred in failing to stay the matter and, secondly, that the trial court erred in adding the rehabilitator as a party-defendant.

We find no error for several reasons. First, the appointment of the rehabi-litator in Illinois does not in and of itself abate or halt the then pending proceeding in the Florida courts. See: Camp v. First National Bank of Ocala, 44 Fla. 497, 33 So. 241 (1902); Peoples v. Florida Insurance Guaranty Association, Inc., 313 So.2d 40 (Fla. 2d DCA 1975); 1 Fla.Jur.2d, Actions, § 75; 27 Fla.Jur., Receivers, § 49. Secondly, the appointment of the ancillary rehabi-litator in Florida would not automatically stay the proceedings until some action was taken thereon. And, in this case, the Florida rehabilitator was specifically charged not to enter into any proceeding without permission of the Leon County Circuit Court. No such permission was ever shown in this record. Further, the Illinois rehabi-litator appeared in the cause, secured a ninety-day stay, and then ignored the command of the very order which gave the rehabilitator a ninety-day stay when it failed to file a report in accordance with the provisions thereof. The Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, was clearly within its power to continue the action after the expiration of the ninety days. See: Section 631.021(4), Florida Statutes (1977).

After the rehabilitator [or receiver, as it is sometimes referred to in the statutes] was appointed, both in Illinois and in Florida, the officers and directors of Main Insurance ’'.Could not manage the affairs of the corporation. The rehabilitator [or receiver] was under a duty to make its appointment known to the trial court as the successor in interest to the management of the affairs of the corporation. This it did and the trial court, upon appropriate motion, stayed the matter for ninety days. When no status report was forthcoming after the expiration of the ninety days, the trial court was certainly within its jurisdiction to. continue with the cause. The mere appointment of the rehabilitator did not create a separate entity, which would have required a separate service of process. The rehabilitator was the successor to the officers of Main Insurance Company and, as such, was under an affirmative duty and responsibility [under its order of appointment] to come into the instant cause in the trial court and file appropriate pleadings on behalf of the insurance company.

There is only one corporate defendant and only one person or group of persons charged with the responsibility of representing the defendant in the litigation; i. e., either the original officers or board of directors of the corporation or the rehabilitator [or receiver]. The responsibility and authority was not joint; it was one or the other.

The record amply supports the final judgment which was rendered in this cause against Main Insurance Company, and the Director of Insurance of the State of Illinois as the rehabilitator for Main Insurance Company. The impact of this judgment is to make the plaintiff a judgment creditor.

Therefore, the final judgment under review be and the same is hereby affirmed.

Affirmed.


author: GRIMES, Chief Judge.

text:
    Malcolm BEARD, as Sheriff of Hillsborough County, Florida, Petitioner, v. STATE of Florida DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY and Joy M. Sloan, Respondents.
    No. 78-1056.
    District Court of Appeal of Florida, Second District.
    March 28, 1979.

      Chris W. Altenbernd, of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for petitioner.
    Alex D. Littlefield, Jr., Tallahassee, for respondent State of Florida Dept, of Commerce.
   GRIMES, Chief Judge.

This is a petition for review of an order of the Unemployment Compensation Board of Review reversing the denial of a claim for unemployment compensation.

Claimant/respondent Sloan was employed by petitioner as a correctional officer at the Hillsborough County jail. From November l, 1974, until mid-June 1975 she worked at the Hillsborough County jail on the 2:00 p. m. to midnight shift. On June 16,1975, she was transferred to the bailiff’s office at the courthouse annex and assigned to the 8:30 a. m. to 4:30 p. m. shift. One year later, on a Friday at 10:30 in the morning, petitioner notified Sloan that she had been transferred back to the county jail effective the next Monday and that her new working hours would be 11:45 p. m. until 7:45 a. m. Sloan then requested annual leave which she had accrued in order to arrange for nighttime supervision for her two teenage children. Petitioner’s personnel administrator denied the request because he felt that any vacation should be approved by the person who would be Sloan’s supervisor at the jail. Thereupon, Sloan resigned effective immediately.

Five days later Sloan filed a claim for unemployment compensation in which she cited her reason for leaving as the inability to secure nighttime supervision for her teenage children necessitated by a change in her working times. The claims examiner rejected her application on the ground that her resignation was precipitated by her refusal to accept a change in working hours which was normal for her occupation. Thus, the claims examiner concluded that respondent’s resignation was not for “good cause attributable to the employer.” Sloan appealed the decision, but the appeals referee, after hearing, upheld the claims examiner. The referee stated that Sloan’s resignation was due to her dissatisfaction with the proposed change in working hours incident to her transfer back to corrections even though the transfer could be expected during the normal course of her employment. Sloan then appealed this decision to the Department of Commerce, Unemployment Compensation Board of Review (Board).

The Board overruled the appeals referee’s findings, concluding that the referee’s determination that Sloan left her job because she was dissatisfied with her new hours was not supported by the record. The Board noted that after Sloan had been advised that her hours would be changed effective the next working day she requested vacation time in order to arrange suitable child care. The Board then found that the petitioner’s refusal to grant Sloan vacation time left her with no reasonable alternative but to resign. Thus, respondent had “good cause attributable to her employer” for leaving the job.

At the outset, we disagree with the Board’s determination that the referee’s findings did not comport with the evidence. The record amply demonstrated that Sloan voluntarily terminated her employment because of a change in working hours which required her to acquire nighttime supervision for her children. The denial of her vacation request cannot be deemed controlling because she resigned before making any effort to arrange for nighttime supervision. Thus, we must determine, as a matter of law, whether a voluntary termination based upon a change in working hours necessitating the employee’s use of nighttime child care constitutes “good cause attributable to [the] employer.”

Prior to 1963, Section 443.06(1), Florida Statutes (1961), provided that a claimant for unemployment compensation who had voluntarily terminated his or her employment without “good cause” was not eligible for benefits. Under that version of the law, our sister court interpreted good cause to include familial obligations. Williams v. Florida Industrial Commission, 135 So.2d 435 (Fla.3d DCA 1961). See also Yordamlis v. Florida Industrial Commission, 158 So.2d 791 (Fla. 3d DCA 1963), in which the court interpreted “good cause” for refusing to accept proffered employment to include child care obligations. In 1963, the legislature amended Section 443.06(1) to require the good cause for voluntary termination to be “attributable to the employer.” Petitioner argues that such a change narrowed the eligibility for unemployment compensation so as to exclude family obligations as a reason for voluntary termination.

While there are no Florida decisions as to whether the need for child care constitutes “good cause attributable to [the] employer,” a decision of a foreign jurisdiction is helpful. In re Watson, 273 N.C. 629, 161 S.E.2d 1, 35 A.L.R.3d 1114 (1968), involved a mother who was laid off from the “first” shift and six weeks later offered employment by the same employer on the “second” shift. She refused to work on the second shift because she could not find suitable nighttime care for her small children. Her claim for unemployment compensation benefits was denied when the examiner determined that her refusal to accept suitable employment was without “good cause.” At the time, North Carolina’s law as to qualifications for benefits was similar to the present Florida law; voluntary termination without “good cause attributable to [the] employer” prevented a claimant from receiving benefits, and refusal to accept suitable employment without “good cause” constituted a similar disqualification. On appeal, the North Carolina court reversed the examiner’s decision and held that the claimant was eligible for benefits. The court noted an anomaly in the North Carolina law; if one voluntarily terminates his employment, his good cause must be attributable to his employer, but if an unemployed person refuses to accept suitable work when offered, his or her reason need only constitute good cause. The court held that while the domestic duties of a claimant cannot qualify as “good cause attributable to [the] employer,” such duties may qualify as “good cause” for refusal to accept work. Ms. Sloan is in a position opposite to the claimant in In re Watson. She was not laid off from her employment but was rotated to another shift. Her refusal to work the new shift may be for good cause, but it is not necessarily attributable to the petitioner.

Several other cases deal with the need to provide child care as grounds for refusing employment and the effect of the refusal on eligibility for unemployment benefits. See Annot., 35 A.L.R.3d 1129 (1971). Most of the cases involve an interpretation of “available for work” requirements in employment compensation benefits laws. Under most statutes — like Florida’s — one who rejects suitable employment without good cause is not “available for work.” Some cases, such as Nurmi v. Vermont Employment Security Board, 124 Vt. 42, 197 A.2d 483 (1963), and Spotts v. Unemployment Compensation Board of Review, 176 Pa.Super. 484, 109 A.2d 212 (1954), hold that domestic obligations are not good cause. Others, such as In re Watson, supra, have held that domestic obligations are good cause for refusing suitable employment, thus preserving the claimant’s availability for work. In these latter cases, however, the good cause standard noted iii the statute was not followed by the phrase “attributable to employer” or “connected with the employment.” E. g., Tung-Sol Electric v. Board of Review, 35 N.J.Super. 397, 114 A.2d 285 (App.Div.1955). In cases where such a requirement exists in the unemployment compensation law, the courts have consistently held that domestic obligations are personal reasons rather than reasons attributable to the employer or to the work. See Carter v. Maine Employment Security Commission, 356 A.2d 731 (Me.1976); Rogers v. Doyal, 215 So.2d 377 (La.Ct.App. 1968).

Thus, we hold that the. legislature, when it added the phrase “attributable to the employer” to the good cause requirement for voluntary termination, must have intended to remove domestic obligations as good cause for voluntary termination. A mother’s unwillingness to leave her children in the care of others at night is certainly good cause for her to resign but it is not good cause which can be attributed to her employer. We sympathize with Ms. Sloan’s position, but we must ascribe to words within a statute their ordinary meaning. Florida Gulf Health Systems Agency, Inc. v. Commission on Ethics, 354 So.2d 932 (Fla. 2d DCA 1978).

Accordingly, we reverse the decision of the Board of Review and affirm the decision of the appeals referee that Ms. Sloan voluntarily terminated her employment without good cause attributable to her employer, thereby making her ineligible for unemployment benefits.

BOARDMAN and DANAHY, JJ., concur.

      . Had she spent the weekend in an unsuccessful effort to make suitable arrangements for her children and then had her request for vacation time denied, a different question might be presented.

      . Ch. 63-327, § 1, Laws of Florida.

      .In Spotts, the Pennsylvania legislature had recently amended the law so as to specifically exclude domestic obligations from the definition of good cause. In Nurmi, the court interpreted the statute to mean that the good cause necessary to maintain eligibility for benefits had to be connected with the job.

      . Indeed, the bill amending the law states that good cause “shall include only such cause as is attributable to the employer, or consists of illness or disability of the individual, other than pregnancy, requiring separation from his employment.” Supra, note 1.


text:
    John Carl KORROK, Appellant, v. STATE of Florida, Appellee.
    No. 78-1135.
    District Court of Appeal of Florida, Second District.
    March 28, 1979.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction, but we remand the case so that the trial court may set aside the order assessing costs against appellant. Since the court had adjudged appellant to be insolvent, it was not authorized to assess costs against him. § 939.15, Fla.Stat. (1977); Cox v. State, 334 So.2d 568 (Fla.1976).

GRIMES, C. J., and SCHEB and DAN-AHY, JJ., concur.


text:
    John Edward TALLBEAR, Appellant, v. STATE of Florida, Appellee.
    No. 78-1300.
    District Court of Appeal of Florida, Second District.
    March 28, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The revocation of appellant’s probation is affirmed, but we remand for deletion of the finding of violation of the condition requiring payment of costs of supervision from the order of revocation. Appellant did not admit this violation, and there was no evidence to show that appellant was able to pay the costs. Coxon v. State, 365 So.2d 1067 (Fla.2d DCA 1979).

GRIMES, C. J., and SCHEB and DAN-AHY, JJ., concur.


author: SCHEB, Judge.

text:
    STATE of Florida, Appellant, v. Stephanie June HEAPE, Appellee.
    No. 78-1475.
    District Court of Appeal of Florida, Second District.
    March 28, 1979.

      Jim Smith, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Jeffrey L. Myers, Clearwater, for appel-lee.
   SCHEB, Judge.

The state challenges the trial court’s order suppressing evidence seized pursuant to a search warrant. The trial court held the affidavit underlying the search warrant was insufficient. We disagree and reverse.

Detectives Canali and Brock of the Vice and Narcotics Division of the St. Peters-burg Police Department applied to Circuit Judge Charles W. Burke for a search warrant to search for contraband drugs in an apartment. In their affidavit the officers described in detail the premises to be searched and stated that it was their belief that contraband drugs would be found in the designated apartment. The officers articulated the basis of their belief as follows:

Your Affiants [sic] reason for this belief are [sic] that in their capacity as detectives with the Vice and Narcotics Division of the St. Petersburg Police Department, they had occasion to make a purchase of twenty pills containing morphine from the above described premises through an individual STANTON BALDWIN, said sale occurring at approximately 5:00 PM on December 29, 1977. Your Affiant CANALI states that along with an individual JOHN SMITH, he contacted the said STANTON BALDWIN for the purpose of making such a purchase. BALDWIN indicated to your Affiant CANALI that he had a source which could supply the morphine tablets. On December 28, 1977, your Affiant CANA-LI and SMITH picked up the said STANTON BALDWIN and BALDWIN directed them to the above described apartment building. BALDWIN then informed your Affiant CANALI that he would check to see if his source was home and CANALI observed the subject BALDWIN walk up the above described stairwell on the north side of said building leading to the above described apartment and then return a short time later indicating to your Affiant that his source was not in, but would return in a few minutes. Your Affiant was unable to complete the transaction that date and arranged with BALDWIN to return the next day to purchase the said controlled substances.
Your Affiant CANALI further states that on December 29, 1977 at approximately 4:30 PM, he, along with subject SMITH, met BALDWIN for the purpose of completing the sale. Your Affiant CANALI states that BALDWIN directed him to drive to the same location, and that his source for the morphine was at home, that the transaction could be completed. Your Affiant CANALI further states that he drove BALDWIN to the above described apartment building and observed him walk over to the same above described stairwell and walk up it, disappearing from view. Your Affiant CANALI then observed BALDWIN return to the vehicle from the same location, where upon [sic] he informed your Affiant that the morphine could either be purchased in a quantity of 20 pills or 30 pills, indicating that his source in the apartment currentlh [sic] had 30 pills. Your Affiant CANALI and SMITH indicated they wished to purchase only 20 pills, and CANALI observed SMITH hand $360 in currency to BALDWIN and observed BALDWIN walk back to same above described location. A few minutes later, BALDWIN returned from the same location, the above described stairwell, requesting that they leave the area. BALDWIN then headed [sic] SMITH the 20 pills in the presence of your Affiant CANALI, which same pills were turned over to your Affiant CANALI. One of the said pills has been presumptively tested by your Affiant CANALI and thereby verified as being morphine.
Your Affiant BROCK states that in his capacity as a detective, he assisted in surveillance of the subject BALDWIN during the above described transaction on December 29, 1977. Your Affiant BROCK states that he observed BALDWIN after first leaving the vehicle, walk up the above described stairwell leading to apartments E and F, and turn to the left (east) toward the entrance to apartment E and away from apartment F and disappear. Affiant BROCK subsequently saw the defendant come down the stairwell, then return a second time, again walking toward the entrance to apartment E. Your Affiant BROCK states that the doors to apartments E and F are the only doors accissible [sic] from this location and that BALDWIN could only have entered into apartment E. BALDWIN again exited, walking down the stairwell and back to CANALPS vehicle.
Your Affiant CANALI further states that the subject BALDWIN was subsequently arrested for this offense and after being interviewed by DETECTIVE G. CHAPMAN, St. Petersburg Police Department, stated that the substances had been purchased from subject ALAN BARNES.

Judge Burke issued the search warrant as requested on December 29, 1977. A search conducted on the following day yielded contraband drugs, and the state subsequently charged appellee with three counts of unlawful possession of controlled substances. Appellee moved to suppress the evidence and Circuit Judge David F. Patterson granted the motion “for the reason that the warrant and affidavit are defective in that they do not contain a full statement that would indicate that the alleged drug transaction took place in the apartment described in the warrant.”

We think the trial judge was incorrect in the standard by which he judged the sufficiency of the affidavit.

The proper test of the sufficiency of an affidavit for a search warrant is whether a reasonable person, knowing all the facts which the affiants knew, would have believed there was probable cause to search under the circumstances. State v. Knapp, 294 So.2d 338 (Fla.2d DCA 1974), cert. denied, 302 So.2d 415 (Fla.1974); Paula v. State, 188 So.2d 388 (Fla.2d DCA 1966).

We have carefully examined the recitals made by the police officers in their affidavit. Although it is true, as appellee Heape contends, that Baldwin could have obtained the morphine tablets elsewhere and could have been going through an elaborate charade, the likelihood of that seems to us to be far less than the probability that Baldwin’s actions were what they purported to be. Given Baldwin’s statement the day before the completion of the transaction that his source “was not in,” we believe it would be reasonable to conclude that his source lived in or was staying in the apartment in question. Based on the totality of the information recited in the affidavit and the reasonable inferences that can be drawn therefrom, we conclude that the affidavit was sufficient to show the police had probable cause to believe there were drugs inside the apartment they sought to search.

Affidavits for search warrants should not be scrutinized for technical niceties. As the United States Supreme Court pointed out in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965):

[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

See also State v. Jacobs, 320 So.2d 45 (Fla.2d DCA 1975).

When we measure by the test of what a reasonable man would have believed had he known all of the facts stated by the officers in their affidavit, we must conclude that there was probable cause to believe that there were contraband drugs in the apartment in question. We must remember that the facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which conviction must be based. State v. Outten, 206 So.2d 392, 397 (Fla.1968).

Accordingly, the order suppressing the evidence against appellee Heape is reversed and the cause remanded for further proceedings consistent with this opinion.

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


text:
    David RODGERS, Appellant, v. Jane SADLER, Appellee.
    No. 78-1715.
    District Court of Appeal of Florida, Second District.
    March 28, 1979.
    Larry B. Roberts, Seminole, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Wolf v. Leak, 70 So.2d 498 (Fla.1954); Villano v. Harper, 248 So.2d 205 (Fla.3d DCA 1971).

GRIMES, C. J., and SCHEB and DAN-AHY, JJ., concur.


author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. Liberace ATKINS, Appellee.
    No. 78-1796.
    District Court of Appeal of Florida, Second District.
    March 28, 1979.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   OTT, Judge.

The State of Florida appeals the dismissal of its information charging appellee with possession of heroin. We reverse.

Appellee was charged with this offense after two law enforcement officers came upon him in the back room of a pool hall while he was leaning over a bottle cap, three pieces of tin foil and a syringe. Heroin is frequently wrapped in tin foil packets for sale and is often prepared for injection in a bottle cap “cooker.” The officers arrested appellee and seized the items, which they sent to Dr. Clarke Davidson, a forensic chemist employed by the Lee County Sheriff’s Department. Dr. Davidson’s tests established the presence of heroin and its common dilutents. His testing almost entirely consumed the residue in the bottle cap. The traces remaining were then sent to a crime laboratory in Sanford, Florida. The report of the crime lab indicated that there was an insufficient sample of residue left for positive identification.

On these facts, appellee moved to dismiss the charges contending that the state could not prove a prima facie ease because no controlled substance could be introduced into evidence at trial. The trial court granted the motion. This was error.

The recent case of State v. Herrera, 365 So.2d 399 (Fla. 3d DCA 1978) is dispositive. Herrera was arrested for possession of heroin. The suspect contraband drug was turned over to the crime laboratory of the Dade County Public Safety Department for chemical analysis. The testing revealed the presence of heroin. However, the heroin was unavoidably consumed during the test procedures. Our sister court found that “such a chemical test was part of the state’s legitimate investigation of this case and cannot be considered in any sense improper conduct.” 365 So.2d at 401. The court noted:

A different case would be presented if the suspect drug had been negligently destroyed during the testing process or if an agent of the state had intentionally or negligently destroyed or lost whatever remained of the suspect drug after the testing process had been completed. . No such showing, however, has been made in this case. [Emphasis supplied.]

365 So.2d at 401.

The Herrera court stated the general rule with reference to the unavoidable destruction of contraband drugs during chemical testing. The court stated:

The law is clear that the state’s intentional or negligent suppression of material evidence favorable to the defendant after a defense request for such evidence constitutes a denial of due process under our state and federal constitutions. .
[T]he weight of authority in the country is that the destruction of suspect contraband drugs unavoidably consumed during chemical testing by a state chemist does not constitute an act of suppression of evidence by the state sufficient to trigger a due process violation.

365 So.2d at 401.

The Herrera court conceded that it would be a “better practice” for the state to delay the testing of small quantities of suspect drugs until a representative of the defendant could be present during such testing. However, the court stated that such a practice was not constitutionally mandated.

Finally, we find no violation of appellee’s sixth amendment right of confrontation. In State v. Armstrong, 363 So.2d 38, 39 (Fla. 2d DCA 1978) this court held that the “confrontation provision of the Sixth Amendment is by its terms restricted to ‘witnesses’ and does not encompass physical evidence as well.”

The order dismissing the charge against appellee is reversed and the cause remanded.

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