author: ADKINS, Justice. McDONALD, Justice,

text:
    Charles Kenneth FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 60636.
    Supreme Court of Florida.
    May 28, 1981.

      Richard H. Burr, III, Nashville, Tenn., and Stephen L. Seliger, Florida Clearinghouse on Criminal Justice, Tallahassee, Florida, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, Florida, for appellee.
   ADKINS, Justice.

This is an appeal from an order denying Charles Kenneth Foster’s motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Appellant requested an evidentiary hearing on his motion and a stay of execution pending disposition thereof. The trial judge denied the motion for post-conviction relief without an evidentiary hearing and denied the application for stay of execution. Foster has also filed a motion for stay of execution in this Court.

After reviewing the record and hearing oral argument, we deny the motion for stay of execution and affirm the order of the trial judge denying the motion for post-conviction relief without an evidentiary hearing.-

The appellant was convicted of murder in the first degree and robbery on October 4, 1975, and sentenced to death upon the conviction for murder in the first degree. He was also sentenced to life imprisonment upon conviction for robbery. Upon appeal, this Court affirmed both of appellant’s convictions and sentences on February 22,1979, and denied rehearing on May 10, 1979. Foster v. State, 369 So.2d 928 (Fla.1979). On October 1, 1979, appellant’s petition for certiorari was denied by the Supreme Court of the United States. On May 5, 1981, the governor of the state of Florida signed a death warrant for appellant requiring his execution on June 3, 1981. On May 12, 1981, the motion for post-conviction relief was filed in the trial court.

Appellant has argued that there are two issues which require evidentiary hearing: the ineffective assistance of counsel and the claim that appellant was incompetent during the course of the trial. Appellant says that counsel was ineffective in that he failed to investigate medical records which were readily available and failed to investigate the existence of expert witnesses who could testify as to appellant’s mental incompetency. Appellant also argued that his attorney advised him improperly about the consequences of a plea of not guilty by reason of insanity in that his counsel advised him that he would spend the rest of his life in the “nuthouse” if this defense should prevail. Appellant also argues that his counsel should have noticed the incompetency of the appellant at the trial. He alleges that he was taking a prescription drug, valium, during the trial and this drug made him incompetent. Appellant also argues that he was, in fact, incompetent during trial and this was an additional reason for an evidentiary hearing.

Even though it may appear, upon an examination, that a motion for post-conviction relief is sufficient, it should be summarily denied if the files and records in the case conclusively refute the allegations or otherwise conclusively preclude relief. Lawson v. State, 231 So.2d 205 (Fla.1970); State v. Reynolds, 238 So.2d 598 (Fla.1970).

It appears from the face of the motion that the matters relating to the competency of the appellant did not constitute relevant evidence of insanity which could be introduced during the guilt phase of the trial. This evidence would not require the submission of the insanity issue to the jury. See Grisson v. State, 237 So.2d 57 (Fla. 3d DCA 1970); Campbell v. State, 227 So.2d 873 (Fla.1969); Dampier v. State, 180 So.2d 183 (Fla. 1st DCA 1965). The trial judge found appellant competent to stand trial and observed his conduct during the trial. The record conclusively shows that this assertion of incompetency during the trial is without merit.

The record discloses the following dialogue out of the presence of the jury when appellant was called as a witness:

BY MR. MAYO:
Q. Your name is Charles Kenneth Foster?
A. Yes sir.
Q. Are you commonly called Kenny? A. Yes sir.
Q. Kenny, we are out of the presence of the jury and I have discussed this aspect with you, it that correct?
A. Yes sir.
Q. Prior to this time have you been advised that the three psychiatrists and the Court has ruled that you are presently competent to stand trial and that you are competent to aid in the preparation of your defense?
A. Yes sir.
Q. Is it true that both counsel that are present in the court have discussed many times with you your various defenses? A. Yes sir.
Q. And did we also discuss with you the possibility of the defense of insanity at the time of the crime, not presently, but at the time of the crime?
A. Yes sir.
Q. Did you direct us to prepare a defense other than that?
A. Yes, I did.
Q. Did we also discuss with you the possibility of a defense in which we would attempt to reduce the degree of the offense to second degree?
A. Yes sir.
Q. Did you advise your counsel to prepare a defense other than that?
A. Yes, I did.
Q. Is it your desire to take the stand in the presence of the jury and give your version of the alleged offense?

Appellant, during his subsequent testimony, confessed his guilt from the witness stand. At that moment his counsel requested a recess and requested the court to determine the sanity or competency of the appellant at that time as well as his sanity at the time of the murder.

During the penalty phase counsel effectively introduced evidence of appellant’s past psychiatric treatment through the testimony of his wife. One psychiatrist was called, but appellant now complains that the interrogation of the psychiatrist was faulty. Appellant says counsel should have focused the examination toward a psychiatric evaluation by the doctor. This was a matter of judgment, and we cannot fault the attorney for presenting evidence in “lay language” through the wife’s testimony instead of “doctor language” through the doctor’s testimony.

Defense counsel, during the penalty phase, introduced into evidence the written report of Committee Finding Incompetency and a petition for involuntary hospitalization and hospitalization certificate containing a diagnosis in each instance. By following this tactic, the attorney gave the jury the opportunity of reading a written exhibit instead of attempting to remember technical oral testimony.

The trial court properly instructed the jury that “the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired” was a mitigating factor. Also, before sentencing appellant, the trial judge considered three psychiatric reports which had been prepared on the question of appellant’s competency to stand trial. Appellant’s counsel, in closing argument, stressed this mitigating factor. In our opinion he handled this problem as a professional advocate and should not be faulted.

A conviction is presumed to be valid. Therefore, when ineffective assistance of counsel is asserted, the burden is on the person seeking collateral relief to specif bally allege and establish the grounds for relief and to establish whether these grounds resulted in prejudice to that person. Meeks v. State, 382 So.2d 673, 675 (Fla.1980). The appellant has failed to carry this burden.

Applying the standards set forth in Knight v. State, 394 So.2d 997 (Fla.1981), we find that the trial attorney has provided reasonably effective assistance of counsel to Foster.

Appellant claims that the motion for post-conviction relief should be granted because this Court allegedly reviewed material, in connection with the appeal, which was unknown to appellant. This is not a ground which is contemplated as proper for post-conviction motion. Florida Rule of Criminal Procedure 3.850 authorizes the use of this procedure by a prisoner claiming the right to be released on the ground that the judgment was entered or that sentence was imposed in violation of the constitution or laws of the United States or of the state of Florida, or that the court was without jurisdiction to enter such judgment or to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or that his plea was given involuntarily, or the judgment or sentence is otherwise subject to collateral attack. In other words, the motion to vacate under Florida Rule of Criminal Procedure 3.850 must be directed to the judgment and sentence of the trial court. Under no interpretation of this rule can any action of the Florida Supreme Court be reviewed. Furthermore, treating the claim as a petition for writ of habeas corpus, this issue was settled in Brown v. Wainwright, 392 So.2d 1327 (Fla.1981).

The appellant has presented other issues which were raised on direct appeal, or could have been raised on direct appeal. It is well settled that issues raised and disposed of on direct appeal, as well as those issues which could have and should have been raised on direct appeal, are not the proper subject matter for a post-conviction motion. Witt v. State, 387 So.2d 922 (Fla.) cert. denied, - U.S. -, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980); Spinkelink v. State, 350 So.2d 85 (Fla.) cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977); State v. Matera, 266 So.2d 661 (Fla.1972).

We therefore affirm the order of the trial judge denying the motion for post-conviction relief and deny appellant’s motion for stay of execution.

No petition for rehearing will be entertained.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON and ALDERMAN, JJ., concur.

McDonald, J., dissents with an opinion.

ENGLAND, J., dissents.

McDONALD, Justice,

dissenting.

I would grant a stay of execution and direct the trial judge to afford the defendant an opportunity to present evidence that the jury and the trial judge were insufficiently apprised of the “mental mitigating factors” set forth in section 921.141(6).

In State v. Dixon, 283 So.2d 1, 10 (Fla.1973), we stated that

[mjental disturbance which interferes with but does not obviate the defendant’s knowledge of right and wrong may also be considered as a mitigating circumstance. Like subsection (b), this circumstance is provided to protect that person who, while legally answerable for his actions, may be deserving of some mitigation of sentence because of his mental state.

This distinction is fine, but one goes to the guilt while the other may affect the sentence. While I am satisfied that the record clearly demonstrates that there was no error in the handling of the guilt phase of Foster’s trial, when it comes to the sentencing phase, the picture becomes sufficiently blurred to require an evidentiary hearing under the formula set forth in Meeks v. State, 382 So.2d 673 (Fla.1980), as modified by Knight v. State, 394 So.2d 997 (Fla.1981).

       The legislature has provided three “mental mitigating factors” in § 921.141(6).
      (b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
      (e) The defendant acted under extreme duress or under the substantial domination of another person.
      (f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.


source: Caselaw Access Project

author: PER CURIAM. ALDERMAN, Justice,

license: Public Domain

text:
    Raleigh PORTER, Appellant, v. STATE of Florida, Appellee.
    No. 55841.
    Supreme Court of Florida.
    June 4, 1981.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Having been convicted of first-degree murder for the slaying of Harry G. Walrath and Margaret Ann Walrath, Raleigh Porter was sentenced to death. This Court has jurisdiction. We affirm the convictions but reverse the sentence because of procedural error.

The sufficiency of the evidence to sustain the convictions has not been raised. We have, however, carefully reviewed it. That review clearly discloses that Porter broke and entered the home of Mr. and Mrs. Walrath, a retired elderly couple living the remaining years of their lives together in Charlotte County, Florida. Inside their home Porter encountered the Walraths, whereupon he struck and beat them. Thereafter he strangled them with an electrical cord. Their car and goods taken from their home were later linked to Porter. Porter voluntarily made incriminating statements. The evidence is sufficient to find that Porter caused the Walrath’s deaths while he was engaged in the crime of robbery.

There was a large amount of publicity surrounding this crime. Apprehensive of its effect on the grand jury (which had been empaneled prior to the commission of this crime), counsel for the defendant sought the right to voir dire the grand jury. His motion asked permission to question the individual jurors regarding their legal qualification, to inquire into the state of mind of the jurors to discover whether there were any facts that would prevent the grand jury from acting impartially and without prejudice to the rights of the defendant, and to determine whether the jurors knew that a sentence of death might be imposed if the defendant were convicted of the offense sought to be charged by indictment. The trial judge denied that motion. After an indictment was returned the appellant moved to quash the indictment on several grounds, one of which was the judge’s refusal of the requested voir dire examination. This also was denied. Appellant contends error was committed by denying these motions. This is not so.

Section 905.04(l)(b), Florida Statutes (1977), provides that a person who has been held to answer may challenge an individual prospective grand juror on the ground that the juror has a state of mind that will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging. Section 905.05, Florida Statutes (1977), allows a belated right to challenge the grand jury to a person who did not know at the time the grand jury was empaneled that he was subject to grand jury action. These statutes are an extension of prior law which had limited challenges of grand jurors to the time of empanelment and on the grounds of legal qualifications. This Court, in sustaining the prior rule, made a point of the different roles of the grand jury and the petit jury. See, e. g., Lake v. State, 100 Fla. 373, 129 So. 827 (1930); Reed v. State, 94 Fla. 32, 113 So. 630 (1927). Although these statutes extend the grounds for challenge to a grand juror, no statute or rule provides for voir dire examination of a grand juror after the grand jury is empaneled. The difference between the roles of the grand jury, to investigate and accuse, and that of a petit jury, to find facts, supplies a basis to provide voir dire for petit jurors but to omit it for grand jurors.

Porter did not file a motion to challenge a juror or jurors in this cause. His motion was to voir dire the grand jury to determine if he had a basis to so challenge. Later he filed a motion to dismiss the indictment because he could not voir dire the jury.

The State of Maine apparently would allow voir dire in certain exigent situations. See State v. Warren, 312 A.2d 535 (Me.1973). Even if Florida were to follow the direction of Maine, which we do not feel we should do in the absence of a statute or a rule, the exigent circumstances that authorize voir dire in Maine do not exist in this case, just as they did not in Warren.

No error was shown in the composition of this grand jury nor was there error in disallowing the voir dire examination of the grand jury. The indictment was valid.

We next turn our attention to the sentencing phase of this case. The trial jury recommended a life sentence following a sentencing hearing, but the trial judge, finding three aggravating circumstances and no mitigating circumstances, imposed the death sentence. The first two aggravating points were that the felonies were committed for pecuniary gain and for the purpose of avoiding or preventing lawful arrest. A substantial portion of the basis for these findings was the testimony of an acquaintance of the appellant, Larry Schapp. The difficulty lies in the fact that the critical findings did not come from Schapp’s trial testimony, but rather from testimony he had given in a deposition. The trial judge never advised the appellant of his intention to utilize the deposition and never afforded the appellant an opportunity to rebut, contradict, or impeach the deposition testimony.

In Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the United States Supreme Court reminded us that the sentencing process, as well as the trial itself, must satisfy the requirements of the due process clause. Gardner held that using portions of a presentence investigation report without notice to the defendant and without an accompanying opportunity afforded to the defendant to rebut or challenge the report denied due process. That ruling should extend to a deposition or any other information considered by the court in the sentencing process which is not presented in open court. Should a sentencing judge intend to use any information not presented in open court as a factual basis for a sentence, he must advise the defendant of what it is and afford the defendant an opportunity to rebut it.

In the instant case the trial judge sentenced Porter to death, relying in part on information concerning appellant’s alleged discussion of a plan to select newly arrived residents, steal their automobiles, and, if necessary, kill them. These facts were not proved at trial. Neither Porter nor his counsel was advised that this information, gleaned from the deposition, was going to be used. By proceeding in this manner, the trial judge deprived Porter of due process of law.

This Court is not saying that there is an insufficient basis in the record to sustain the judge’s imposition of the death penalty. There may very well be, notwithstanding the jury’s recommendation of a life sentence. We are not making a substantive determination of what the proper sentence should be.

The convictions are affirmed. The sentences are vacated, however, and this cause is remanded to the trial judge for resen-tencing in accordance with the guidelines and directions expressed herein.

It is so ordered.

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

ALDERMAN, J., concurs specially with an opinion.

ADKINS, J., concurs as to conviction and dissents as to sentence.

ALDERMAN, Justice,

concurring specialty-

I agree with the majority opinion. I concur specially, however, to point out that here the facts as found by the trial court suggesting a sentence of death are so clear and convincing that no reasonable person could differ. Tedder v. State, 322 So.2d 908 (Fla.1975). The only basis for the jury recommendation of life was the vivid and lurid description of an execution by electrocution permitted by the court, without objection by the State, to be read to the jury by defense counsel. In its sentencing order, the trial court expressly recognized that the jury was affected by this evidence which should never have been admitted. The State should have objected to this evidence, and the court should have sustained the objection and not allowed this highly inflammatory description to be read to the jury. We have recently ruled that such a description of the electrocution process is not relevant and should be excluded. In Shriner v. State, 386 So.2d 525, 533 (Fla.1980), we said:

Equally meritless is the contention that it was error to exclude the testimony of a priest who had witnessed an execution by electrocution. While it is settled that an advisory jury and trial judge may consider evidence of mitigating factors beyond those enumerated in section 921.-141(6), Florida Statutes (1977), the evidence must be relevant to the sentencing inquiry. We do not believe that a descriptive account of an electrocution would aid the jury or judge in their effort to apply section 921.141 fairly and correctly. Indeed, such evidence would more likely serve to distort and obfuscate the sentencing process. [Footnote omitted.]

The only reason for remanding this case for resentencing by the trial judge is to give the defendant an opportunity to rebut the deposition testimony of Larry Schapp.

       Art. V, § 3(b)(1), Fla.Const.


author: ALDERMAN, Justice.

text:
    John PETRIK and Claudine Petrik, husband and wife, Petitioners, v. NEW HAMPSHIRE INSURANCE COMPANY, a Foreign Corporation, Superior Dairies, Inc., a corporation, Richard Williams, Irving T. Charles, Automobile Club of Southern California, a Foreign Corporation, and David Petrik, Respondents. Richard WILLIAMS, Superior Dairies, Inc., and New Hampshire Insurance Company Petitioners, v. John PETRIK and Claudine Petrik, husband and wife, Respondents.
    Nos. 57176, 57179.
    Supreme Court of Florida.
    June 4, 1981.

      Robert C. Gobelman and Jack W. Shaw, Jr. of Mathews, Osborne, Ehrlich, McNatt, Gobelman and Cobb, Jacksonville, for petitioners/respondents.
    Carle A. Felton, Jr. of Boyd, Jenerette, Leemis & Staas, Jacksonville, for respondents/petitioners.
   ALDERMAN, Justice.

John and Claudine Petrik were passengers in their son David’s automobile, driven by David, when it collided with a truck owned by Superior Dairies and driven by Irving Charles, Superior’s employee. David’s car was insured by Automobile Club of Southern California. The policy excluded coverage for “bodily injury to the named insured or a relative.” The Petriks sued Superior Dairies and its insurer, New Hampshire Insurance Company, and Irving Charles. These defendants then filed a third-party complaint seeking contribution against David Petrik and his insurer, Automobile Club of Southern California. David’s insurer denied coverage based on the family exclusion clause in its policy. The trial court granted summary judgment against David’s insurer on the issue of coverage. On appeal, the insurance company sought reversal of the summary judgment, contending that its family exclusion clause was valid and that it was not responsible for the contribution claim against its insured. The district court, Fla.App., 379 So.2d 1287, rejected this contention and, citing its prior decision in Florida Farm Bureau Insurance Co. v. Government Employees Insurance Co., 371 So.2d 166 (Fla. 1st DCA 1979), it held that family exclusion clauses such as this one did not bar recovery of a third-party contribution claim against a joint tortfeasor’s insurer. Pursuant to article V, section 3(b)(3), Florida Constitution (1972), it certified the following question as being one of great public interest.

Does a family exclusion clause in an automobile insurance policy control over the Uniform Contribution Among Joint Tort-feasors Act to prevent one tortfeasor from seeking contribution from another tortfeasor?

Automobile Club of Southern California, the party adversely affected by the district court’s resolution of this question, did not seek review of the district court’s decision. Therefore, even though the district court has certified this question as being one of great public interest, we do not have jurisdiction because the certified question has not been brought to us for review. As to these parties, the district court’s decision on this issue is final and is the law of the case. This is true even though we have subsequently quashed the district court’s decision in Florida Farm Bureau Insurance Co. v. Government Employees Insurance Co. and answered the certified question contrary to the holding of the district court. Florida Farm Bureau Insurance Co. v. Government Employees Insurance Co., 387 So.2d 932 (Fla.1980).

Pursuant to article V, section 3(b)(3), Florida Constitution (1972), John and Claudine Petrik, in case No. 57,176, and Richard Williams, Superior Dairies, Inc., and New Hampshire Insurance Company, in case No. 57,179, seek to invoke our jurisdiction on the basis of alleged direct conflicts between the district’s decision and other decisions of the district courts of appeal and the Supreme Court. Neither petition is based on the certified question. Having considered the jurisdictional briefs, we conclude that the district court’s decision on these other issues has not created such direct conflict as would warrant the exercise of our jurisdiction.

Accordingly, the petitions for certiorari are denied.

No motion for rehearing will be entertained by the Court. See Fla.R.App.P. 9.330(d).

SUNDBERG, C. J., and BOYD and MCDONALD, JJ., concur.

ADKINS, J., dissents.


author: ENGLAND, Justice.

text:
    Ernest Junior LOTT, Appellant, v. STATE of Florida, Appellee.
    No. 59175.
    Supreme Court of Florida.
    June 4, 1981.

      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   ENGLAND, Justice.

This case comes to us by direct appeal from a nolo contendere plea which specifically reserves the right to appeal constitutional issues raised in the trial court. Under Article V, section 3(b)(1), Florida Constitution (1972), we have jurisdiction to resolve issues properly raised by the motion which were reserved and which are disposi-tive of the proceeding. Brown v. State, 376 So.2d 382 (Fla.1979).

All but one of appellant’s constitutional challenges to section 39.04(2)(e)4, Florida Statutes (1979), of Florida’s Juvenile Justice Act have been resolved by our recent decision in State v. Cain, 381 So.2d 1361 (Fla.1980). The one remaining challenge involves an alleged due process violation with respect to the application of that statute to the facts of this case. The gist of appellant’s argument is that this statute improperly places on a juvenile the burden of proving that he should be treated as a juvenile rather than an adult since he is required to demonstrate that he has not committed two delinquent acts, one of which has been a felony. Appellant’s argument is premised on the anomalous notion that “but for” the fact that a juvenile is sixteen or seventeen years of age and, “but for” the fact that he has been found to have committed two delinquent acts, one of which is a felony, he could not have been prosecuted as an adult. Accordingly, appellant reasons, the commission of the delinquent acts constitutes a necessary element of the crime to be proved and, as such, the burden of proving these acts should lie with the state.

We find appellant’s argument unpersuasive. As we stated in Cain, “a child has the right to be treated as a juvenile delinquent only to the extent provided by our legislature.” 381 So.2d at 1363. “It is also clear that the state attorney’s decision to bring criminal charges against a juvenile does not involve an ‘adjudication.’ Rather, it is only the basis by which adjudication is initiated.” Id. at 1366. Thus, since there is no adjudication involved in the state attorney’s decision to treat appellant as an adult, it logically follows that section 39.04(2)(e)4, cannot, by any stretch of the imagination, be construed as an element of the crime of which the juvenile is charged.

Appellant further contends, as a practical matter, that section 39.04(2)(e)4 works a hardship on the juvenile inasmuch as he must secure documents from every county of residence to show that he has not been found to have committed two delinquent acts, one of which is a felony. In this regard, we need only note that, under the statute, the juvenile is only required to submit some form of legally sufficient evidence that he has not committed the subject acts. An affidavit or testimony, for example, would be satisfactory for this purpose. Since the basis for the prosecutor’s decision to prosecute as an adult is freely discoverable, see Florida Rule of Criminal Procedure 3.220(a), there is in reality no hardship involved in marshalling that evidence.

Appellant next argues that the state attorney may not file a direct information against a juvenile once a petition for delinquency has been filed in the juvenile division and thereby divest that court of jurisdiction, unless a written waiver or a transfer of jurisdiction is first obtained from that court. In State ex rel. Register v. Safer, 368 So.2d 620 (Fla.1st DCA 1979), virtually the identical contention was considered and rejected. There the First District Court of Appeal held that the initial processing of a juvenile through the juvenile court system did not preclude the state attorney from filing an information in the felony division of the circuit court, and that he was not required to first obtain a written waiver or a transfer of jurisdiction from the court. We agree completely with the position taken by the First District Court of Appeal in Register and find it dispositive of the issue presented here.

In this connection, appellant also contends that the filing of the delinquency petition constitutes the “giving” of a right to continued juvenile treatment which may not be taken without due process. In Cain we stated that:

[W]e disagree with [the juvenile] defendants’ threshold analysis that something is being “taken” from them as a result of their being prosecuted as adults rather than as juveniles.... [J]uveniles are given such immunity from criminal prosecution as is conferred on them under statute. Reading chapter 39 in pari materia, we note that while exclusive jurisdiction over juveniles is initially vested in the juvenile division of the circuit court, this jurisdiction is expressly qualified to the extent of the statutory exceptions .... Thus the statutory scheme of chapter 39 dispels any notion that a juvenile is guaranteed an absolute right to juvenile treatment.

381 So.2d at 1366. This analysis applies with no less force here and we hold that the filing of the information by the state attorney in this case did not violate due process.

Appellant’s last contention relates to suppression of expert testimony which is in no way dispositive of the case and, consequently, is not reviewable. Brown v. State, supra.

The judgments and sentences of the circuit court are affirmed.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.

      . Section 39.04(2)(e)4 provides:
      With respect to any child who at the time of commission of the alleged offense was 16 or 17 years of age, [the state attorney may] file an information when in his judgment and discretion the public interest requires that adult sanctions be considered or imposed. Upon motion of the child, the case shall be transferred for adjudicatory proceedings as a child pursuant to s. 39.09(1) if it is shown by the child that he had not previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida law as a felony.

      . In Register, unlike the instant case, only an initial detention hearing had been held and no petition for delinquency had yet been filed. This factual distinction is irrelevant, however, since in that case, like the instant case, the jurisdiction of the juvenile division had already attached prior to the state attorney’s filing of the information. See § 39.06(7), Fla.Stat. (1979).


text:
    Sidney Anthony JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 59406.
    Supreme Court of Florida.
    June 4, 1981.

      Nancy A. Daniels, Asst. Public Defender, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., Doris E. Jenkins and Gregory Smith, Asst. Attys. Gen., Tallahassee, for respondent.
   PER CURIAM.

The decision of the District Court of Appeal, First District, in Jones v. State, 383 So.2d 1092 (Fla. 1st DCA 1980), is quashed on the authority of Carter v. State, 384 So.2d 1255 (Fla.1980).

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD and McDONALD, JJ., concur.

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

I dissent to the quashing of the district court’s decision for the reasons stated in my dissent in Carter v. State, 384 So.2d 1255 (Fla.1980). I would approve the decision of the district court affirming Jones’s perjury conviction and holding:

Although Brannen [Brannen v. State, 94 Fla. 656, 114 So. 429 (1927)] does not specifically require that the recantation be voluntary — done without knowledge that the perjury has been uncovered and the truth known — the requirement is implicit in the rationale underlying the decision. If the recantation is not voluntary, it would be of little use in discovering the truth, since the truth is already known or known to be available through other sources.

Jones v. State, 383 So.2d 1092, 1093 (Fla. 1st DCA 1980).


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Frank BYRON, Respondent.
    No. 59529.
    Supreme Court of Florida.
    June 4, 1981.
    James P. Hollaway, Deputy Staff Counsel, Tallahassee, Harris K. Solomon, Bar Counsel, and Lance J. Thibideau, Asst. Staff Counsel, Fort Lauderdale and William T. Haverfield, Committee Chairman, Twentieth Judicial Circuit, Fort Myers, for complainant.
    Joel O. Lederer, Port Charlotte, for respondent.
   PER CURIAM.

The respondent, Frank Byron, neglected a legal matter entrusted to him which resulted in dismissal with prejudice of his client’s case. The referee found this neglect to be a violation of Disciplinary Rule 6-101(AX3) of the Code of Professional Responsibility. The finding is supported by competent substantial evidence.

Respondent has previously been suspended for thirty days in a disciplinary. action resulting from his failure to file income tax returns. 384 So.2d 1269. Considering that fact and the circumstances of this neglect, the referee recommended suspension for an additional sixty to ninety days. As an additional requirement, the bar recommends that the respondent satisfy his former client’s stipulated claim of six thousand dollars before being readmitted to practice. Subsequent to the bar’s recommendation, the respondent executed a binding contractual agreement to satisfy that claim. We find that this contract sufficiently protects the client, and we deny the bar’s recommended condition for readmission.

Frank Bryon is publicly reprimanded for failing to fulfill his responsibilities as an attorney, is suspended from the practice of law for an additional sixty days, and shall pay costs of these proceedings in the amount of $148.30.

It is so ordered.

SUNDBERG, C. J„ and ADKINS, BOYD, OVERTON and McDONALD, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Anson KLINGER a/k/a Andrew Peters, Respondent.
    No. 59793.
    Supreme Court of Florida.
    June 11, 1981.
    H. Glenn Boggs, Asst. Staff Counsel, UPL, Tallahassee, and Ronald R. Richmond, Chairman, Standing Committee on Unauthorized Practice of Law, New Port Richey, for complainant.
    Michael Grossman, Miami, for respondent.
   PER CURIAM.

This matter is before the Court on petition against unauthorized practice of law pursuant to article XVI of the Integration Rule of The Florida Bar. We have jurisdiction. Art. V, § 15, Fla.Const. (1972).

A petition against the unauthorized practice of law was filed in this Court on October 13, 1980, alleging:

I
This petition is filed pursuant to Article XVI of the integration Rule of The Florida Bar.
II
This Court has original and exclusive jurisdiction to prohibit the unauthorized practice of law pursuant to Article V, Section 15, of the Florida Constitution.
III
Petitioner is charged with the duty and responsibility of initiating and prosecuting, in this Court, proceedings against the unauthorized practice of law.
IV
Article II, Section 2, of the Integration Rule of The Florida Bar provides in part that “[n]o person shall engage in any way in the practice of law in this state unless such person is an active member of The Florida Bar in good standing....”
V
The Board of Governors of The Florida Bar has authorized the institution of this proceeding against respondent.
VI
Respondent, at all times material herein, was not and is not a member of The Florida Bar, and was not and is not therefore licensed to engage in the practice of law in the State of Florida.
VII
Respondent has engaged in the unauthorized practice of law in Florida by one or more of the following acts:
1. A copy of a Cease and Desist Affidavit which was signed by respondent on June 29, 1979, pursuant to petitioner’s investigation of alleged instances of unauthorized practice of law and previous to the occurrence of the acts alleged immediately below, is attached hereto and marked “A”.
2. On or about May 14, 1980, Suburban Chevrolet Co., 1100 Excelsior Avenue, Hopkins, Minnesota 55343, received a Statement of Claim and a Summons, purporting to initiate litigation, from Just Lamps, Inc., 4820 S.W. 75th Avenue, Miami, Florida 33155. The name Andrew Peters appears in a space designated for attorney for plaintiff. Anson Klinger, a/k/a Andrew Peters, is President of Just Lamps, Inc.
3. On or about August 7,1980, George Motor Sales, Route 50 East, Grafton, West Virginia 26354, received a Statement of Claim and a Summons, purporting to initiate litigation, from Just Lamps, Inc., of Miami, Florida. The name Andrew Peters appears in a space designated for attorney for plaintiff.
VIII
The aforementioned activities of respondent violate the letter and spirit of this Courts decisions in The Florida Bar v. Walzak, 380 So.2d 428 (Fla.1980), The Florida Bar v. Joyce, 299 So.2d 27 (Fla.1974), and The Florida Bar v. Scussel, 240 So.2d 153 (Fla.1970).

A motion for temporary injunction was filed on the same day.

On January 13, 1981, this Court granted the petition against unauthorized practice of law and ordered respondent to show cause to a referee why he should not be held in contempt of this Court for the unauthorized practice of law. We also ordered that respondent be temporarily enjoined from engaging in the complained of activities.

Having reviewed the pleadings and evidence, the referee found respondent guilty of indirect criminal contempt. The referee recommended that respondent be fined $1,000 plus all costs incurred by The Florida Bar in these proceedings, and additionally that the temporary injunction entered by this Court be made permanent.

Having carefully reviewed this matter we approve the recommendations of the referee.

Accordingly, respondent Anson Klinger a/k/a Andrew Peters, is permanently enjoined from engaging in the acts complained of in the petition against unauthorized practice of law, and from otherwise engaging in the practice of law in the state of Florida. We hold respondent in indirect criminal contempt of this Court for the unauthorized practice of law, and impose a fine on him in the amount of $1,000 plus costs of this proceeding in the amount of $215.00.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Paul K. SILVERMAN, Respondent.
    No. 60500.
    Supreme Court of Florida.
    June 11, 1981.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, Cynthia Prettyman, Bar Counsel, Fort Lauderdale, and Wilson C. Atkinson, III, Chairman, Seventeenth Judicial Circuit Grievance Committee “D”, Hollywood, for complainant.
    Paul K. Silverman, in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Unconditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline to violations of The Florida Bar Code of Professional Responsibility DR 1-102(A)(1); DR 1-102(A)(5); DR 1-102(A)(6); DR 5-105(A); DR 5-105(B); DR 6-101(A)(2); DR 6-101(A)(3); DR 7-101(A)(l); DR 7-101(A)(3) and DR 7-106(C)(7), and The Florida Bar Integration Rule, article XI, Rule 11.-02(3)(a). We approve the Petition, and Respondent, Paul K. Silverman, is suspended from the practice of law for three months and one day and will be reinstated only after proof of rehabilitation and payment of costs in the amount of $366.40. This suspension shall be effective July 13, 1981, thereby giving respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients and respondent shall not accept any new business. After the period of respondent’s suspension is terminated, respondent will then be on one year probation, during which time he must take thirty hours of CLE courses in criminal law.

It is so ordered.

BOYD, Acting C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


author: PER CURIAM. WENTWORTH, Judge,

text:
    UNITED STATES of America, Appellant, v. ASSOCIATED DEVELOPERS OF FLORIDA, INC. and Auto-Owners Insurance Company, Appellees. DEPARTMENT OF REVENUE, State of Florida, Appellant, v. ASSOCIATED DEVELOPERS OF FLORIDA, INC. and Auto-Owners Insurance Company, Appellees.
    Nos. NN-307, NN-253.
    District Court of Appeal of Florida, First District.
    Sept. 15, 1980.
    Rehearing Denied June 16, 1981.

      Nicholas P. Geeker, U. S. Atty., Tallahassee, M. Carr Ferguson, Asst. Atty. Gen., and Gilbert E. Andrews, Karl Schmeidler, and Mary L. Jennings, Attys., Tax Division, Dept, of Justice, Washington, D. C., for appellant United States of America.
    Jim Smith, Atty. Gen., William D. Townsend, Asst. Atty. Gen., Tallahassee, for appellant Dept, of Revenue, State of Florida.
    David T. Johnson, Jr. of Clark, Parting-ton & Hart, Pensacola, for appellee Auto-Owners Ins. Co.
   PER CURIAM.

The United States of America (United States) and the State of Florida (State) appeal a final judgment absolving the surety, Auto-Owners Insurance Company, from liability for the receiver’s failure to pay certain tax monies to each government. We reverse.

Several plaintiffs holding mortgages on country club property filed a petition for the appointment of a receiver to continue the business. The trial court granted the petition, effective June 25, 1975, and appointed Frank Mize Jr., receiver of the financially troubled club. The receiver was ordered to “attempt” to keep the property in a good state of repair and “pay taxes and assessments on said property, such payments to be made from the profits or proceeds collected or from amounts which plaintiffs [those who petitioned for the receivership] may invest in advance to protect the premises.” The receiver’s bond, provided by the surety, read in part:

THE CONDITION OF THIS BOND is that if Frank W. Mize, Jr. shall pay all costs that result from Frank W. Mize, Jr.’s failure to faithfully perform his duties as Receiver, then this bond is void; otherwise, it remains in force.

On May 2,1977, the receivership was terminated effective February 15, 1977. The United States filed claims against the surety for certain taxes accruing during the receivership: federal withholding of income, social security (Federal Insurance Contributions Act or FICA), and unemployment (Federal Unemployment Tax Act or FUTA). Similarly the State claimed it was entitled to sales tax monies. The trial court ruled that Mize performed his duties in good faith with ordinary care and held neither Mize nor his surety liable for the claims. The evidence clearly supports the finding that Mize operated the business in good faith in an effort to save the business.

First, we agree with the State’s assertion that sales tax monies are state funds from the moment of collection; and therefore, the receiver was obligated to pay these monies to the state before he used them to pay other indebtedness. A receiver has the statutory duty to collect and remit sales tax. §§ 212.02(1), 212.06, Fla.Stat. (1977). Here, Mize collected sales tax from purchasers but deposited the funds in a general account, ultimately spending the money on other indebtedness to continue the business. Nonetheless, the taxes became state funds from the moment of collection. § 212.15(1). The sales tax is in the nature of a privilege tax to do business. §§ 212.05, 212.07(1). Although the business operated at a loss, the receiver was obligated by law to account for these trust funds collected by the receiver in the course of continuing the business. We disagree with the surety’s argument that it is relieved of liability because Mize exercised good faith. If a receiver fails to perform his lawful duties, then the loss occasioned by the breach of duty is covered by the receiver’s faithful performance bond. See generally State v. Stewart, 272 Cal.App.2d 345, 77 Cal.Rptr. 418, 422-423 (1969); In the Matter of Jack Lopez Wholesale Shirt Laundry, Inc., 435 F.Supp. 1031, 1033, 1035 (E.D.Pa.1977). Further, the court order appointing Mize and delineating his duties did nothing to relieve the receiver of his lawful obligations. In determining the amount of the surety’s liability, the receiver should be credited for the sales tax payments he made for taxes accruing before the receivership. Thus, we remand for further proceedings, including the taking of additional evidence regarding the proper amount of liability, because the trial judge apparently considered the surety’s liability a threshold issue, and therefore the record fails to show the amounts improperly credited.

As to the United States, we also reverse and remand. Income taxes are to be withheld upon making the payment of wages, as are employee FICA taxes. These funds, collected and withheld by a receiver are held in trust for the United States. 26 U.S.C.A. § 7501(a). Thus, the failure to pay these monies to the United States is also a breach of the receiver’s duties under the receiver’s surety bond. See generally In re Dwyer’s Estate, 168 Cal.App.2d 264, 335 P.2d 718 (1959). As to employer FICA taxes and FUTA taxes, the receiver, as an employer, is statutorily required to pay these to the United States. 26 U.S.C.A. § 3102, § 3301, et seq. The evidence fails to show that funds were unavailable to pay these taxes when due or anytime thereafter. On the contrary, the business showed a substantial cash flow and managed to conduct business for over a year. Thus, here also, the record fails to show other than a clear breach of a statutory duty. See generally In the Matter of Jack Lopez Wholesale Shirt Laundry, Inc., supra. However, the receiver is also entitled to credit for any federal taxes paid by the receiver but which accrued before the receivership.

Reversed and remanded for further proceedings consistent with this opinion.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.

Motion for Rehearing DENIED.

McCORD and LARRY G. SMITH, JJ., concur and WENTWORTH, J., dissents with written opinion.

WENTWORTH, Judge,

dissenting from denial of rehearing.

I would grant rehearing and amend that portion of the opinion regarding the surety’s state sales tax liability so as to delete our instruction that the receiver be credited for payments made for taxes accruing before the existence of the receivership. Neither the trial judge nor the parties on appeal have raised or addressed this issue, and the appropriateness of such a credit involves factual and legal issues which should be initially determined by the trial judge upon remand.

      . 26 U.S.C.A. § 3402(a).

      . 26 U.S.C.A. § 3102(a).


author: PER CURIAM. LETTS, Chief Judge, BERANEK, Judge,

text:
    Jean MacARTHUR, mother and natural guardian of Kimberly Booth, Appellant, v. The TRAVELERS INSURANCE CO., etc., Appellee.
    No. 79-2308.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 1981.
    Rehearing Denied July 8, 1981.
    Thomas E. Kingcade and Larry M. Mesches, of Levy, Plisco, Perry, Shapiro, Kneen & Kingcade, P.A., Palm Beach, for appellant.
    Robert T. Bergin, Jr., of Brennan, McAli-ley, Hayskar, McAliley, & Deckert, P.A., West Palm Beach, for appellees.
   PER CURIAM.

AFFIRMED.

WESSEL, JOHN D., Associate Judge, concurs.

LETTS, C. J., specially concurring with opinion.

BERANEK, J., dissents with opinion.

LETTS, Chief Judge,

concurring specialty-

I agree with the sentiment expressed by Judge Beranek in his dissent. However, that is not the law. Moreover, the Legislature has only recently passed a statute which completely protects anyone who sells or furnishes alcoholic beverages to someone of lawful drinking age.

In an era when even more severe legislation is being enacted to cut down on the evil of drunk driving, it is amazing that Section 768.125, Florida Statutes (1980 Supp.) was ever adopted.

BERANEK, Judge,

dissenting.

I respectfully dissent. I believe there should be a civil cause of action based upon injuries arising from the commercial sale of liquor to an obviously intoxicated person who is known to be driving a car. I would reverse and remand for further proceedings which might include amendments to the pleadings.

      . This statute was not effective at the time of the accident here under consideration. We have resorted to the general law for the result.


text:
    B. F. DIAMOND CONSTRUCTION COMPANY and Fidelity and Guaranty Company of New York, Appellants, v. Daniel E. HARRELL, Appellee.
    No. WW-344.
    District Court of Appeal of Florida, First District.
    March 5, 1981.

      J. Nixon Daniel, III, of Beggs & Lane, Pensacola, for appellants.
    Charles A. Wade, Fort Walton Beach, for appellee.
   PER CURIAM.

The employer/carrier appeal a workers’ compensation order contending the deputy commissioner erroneously awarded temporary partial disability benefits, permanent partial disability benefits, and payment of a hospital bill. We affirm in part and reverse and remand in part.

We find no error in the award to claimant of permanent partial disability benefits since there is substantial competent evidence to support the finding that claimant’s present condition is attributable to accidents suffered while in the employ of B. F. Diamond Construction Company. Likewise, we find the deputy could properly order that the employer/carrier pay the cost of claimant’s 1979 hospitalization by an authorized physician since there is substantial competent evidence establishing the causal relationship between the hospitalization and claimant’s compensable condition. Accordingly, as to these issues, the order is affirmed.

However, as to the deputy’s award of temporary partial disability benefits, the order must be reversed and remanded for additional findings of fact. Section 440.-15(4), Florida Statutes (Supp.1978) provides the statutory formula for computation of temporary partial disability benefits: “60 percent of the difference between the injured employee’s average weekly wage before the injury and his wage-earning capacity after the injury in the same or other employment. ...” We are unable to determine from the order the deputy’s finding as to claimant’s wage earning capacity after the injury. Additionally, the order is unclear as to the deputy’s determination of claimant’s average weekly wage before his injury. Accordingly, as to the award of temporary partial disability benefits, the order is reversed and the cause remanded with directions that a new order be entered specifying the claimant’s average weekly wage before the injury and his wage earning capacity after the injury and setting forth the temporary partial disability benefits due in accordance with those findings and the statutory formula. Armour & Company v. Chatman, IRC Order 2-3212 (August 4, 1977).

The order is affirmed in part, and reversed in part, as indicated above, and remanded for further consideration consistent herewith.

BOOTH and JOANOS, JJ., and PEARSON, TILLMAN (Retired), Associate Judge, concur.


text:
    Bobby O’Neal BARNES, Appellant, v. STATE of Florida, Appellee.
    No. VV-116.
    District Court of Appeal of Florida, First District.
    April 6, 1981.
    Rehearing Denied June 19, 1981.
    Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

REVERSED and remanded for new trial. Tascano v. State, 393 So.2d 540 (Fla.1980).

McCORD, ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Appellee contends on motion for rehearing that we should not reverse the trial court on the basis of Tascano v. State, 393 So.2d 540 (Fla.1980), because the evidence pertaining to appellant’s guilt was overwhelmingly established by the record on appeal, and, therefore, any error in the trial court’s refusal to give appellant’s requested charge on penalties was harmless error.

From our interpretation of the Tascano ruling, in conjunction with Justice Alderman’s dissent thereto, the trial court’s error in this respect cannot be deemed harmless. The Supreme Court held this instruction to be mandatory. We, therefore, must reverse and remand for a new trial. However, we certify to the Supreme Court of Florida that the following question is of great public importance:

Does the harmless error doctrine, as enunciated by § 59.041, Florida Statutes (1979), apply to refusal of the trial court to instruct on the maximum and minimum sentences which may be imposed for the offense for which the accused is then on trial pursuant to Florida Rule of Criminal Procedure 3.390(a)?

The motion for rehearing is denied.

McCORD, ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Maria RIVERA, Nelson Garcia, Rene Ferrer, Lazarro Valiente, and Joseph Rivera, Appellees.
    No. 78-2757.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Rehearing Denied May 27, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Lawrence E. Besser, Edward R. Shohat and Benedict P. Kuehne of Bierman, Son-nett, Beiley & Shohat, P. A., Miami, for appellees.
   DOWNEY, Judge.

This is a state appeal from an order suppressing marijuana seized from a marine vessel and from a dwelling. It is a companion case to Rizzo v. State ex rel. City of Pompano Beach, 396 So.2d 869 (Fla. 4th DCA 1981), opinion on rehearing filed this date, since it arose out of the same April 7, 1978, marijuana seizures involved in Rizzo.

The hearing on the appellees’ motion to suppress took place before a circuit judge other than the judge involved in Rizzo; it occurred some months after the Rizzo hearing; and it had different results.

In the present case the circuit court granted appellees’ motion to suppress on the basis that the police officers had no probable cause to arrest and, therefore, needed search warrants to enter the dwelling and to board the vessel. We reverse the order of suppression for failure of any of appellees to show standing, i. e., a reasonable expectation of privacy, as to the dwelling or the vessel (See State v. Muzevsky, 388 So.2d 21 [Fla. 4th DCA 1980]) and remand the cause for further proceedings.

REVERSED AND REMANDED.

ANSTEAD and HERSEY, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

The remand of this case for further proceedings did not include further consideration of the question of standing; that question was considered and determined adversely to appellees in our opinion of April 15, 1981.

Accordingly, the Petition for Rehearing is denied.

DOWNEY, ANSTEAD and HERSEY, JJ., concur.


author: PRANK D. UPCHURCH, Jr., Judge.

text:
    Robert McWHORTER, individually, Diane McWhorter, his wife, individually, and Diane McWhorter as next friend of Patrick McWhorter, minor child, Michelle Renee McWhorter, minor child, and Darrin Robert McWhorter, minor child, Appellants, v. CITY OF NEW SMYRNA BEACH UTILITIES COMMISSION, Appellee.
    No. 79-221.
    District Court of Appeal of Florida, Fifth District.
    May 6, 1981.
    Rehearing Denied June 24, 1981.

      Judson I. Woods, Jr., and Jack W. Watson, III of Woods & Watson, Edgewater, for appellants.
    Elsie T. Apthorp and Jacqueline R. Griffin, Orlando, for appellee.
   PRANK D. UPCHURCH, Jr., Judge.

Appellants, the Robert McWhorter family, appeal from a final judgment after a jury trial denying recovery for damages to their home which resulted when sewage flooded their home.

While Mr. and Mrs. McWhorter were attending a convention in Orlando, they called home to check on their children and learned that there was “some water in the house.” The parents returned home at about 1:00 a. m. to find water running out of the front door. Two small children were asleep covered by bedding saturated through capillary action with sewage water. To their horror, they discovered the source of the sewage water was their plumbing fixtures which had flooded the floor to a depth of two to three inches. Frantic, they incorrectly assumed the problem was a stoppage on their property. Early the next morning they called “Roto Rooter” for assistance. “Roto Rooter” determined the blockage was in the city system. City employees quickly cleared the lines, finding the blockage was caused by an accumulation of paper. The blockage was not in any way attributable to the McWhorters and was in the city system, not in the service line on the McWhorter property.

The home was supplied with sewer service by the appellee, City of New Smyrna Beach Utilities Commission. Residences within the city are required by ordinance to hook-up to the sewer system and a monthly charge is made for this service.

It is hard to imagine a more offensive and nauseating invasion of a home than the one suffered by this family. During the cleanup period, the house was infested with maggots, flies, and worms. Fecal matter was distributed throughout the house. The stench was unbearable. Carpets had to be removed and discarded; several feet of the cypress panelling on the walls mildewed. They were forced to move out of the house and reside for weeks in a rental apartment. Family relationships were strained while they attempted the cleanup. Furniture was ruined. The total out-of-pocket damages suffered by this family amounted to thousands of dollars and does not account for the untold labor and inconvenience to the family members. This family’s love and enjoyment of their home was all but destroyed.

As incongruous and improbable as it may seem, the jury found no responsibility on the part of the City Utilities Commission.

The question raised by this appeal is whether appellants have a remedy and if so, was it properly pleaded and proved.

Appellants attempted to plead estoppel, negligence, nuisance, trespass and contract in a single “catch-all” complaint. It was not pleaded in separate counts. The negligence theory includes res ipsa loquitur and strict liability as well as ordinary or simple negligence. The contract theories included express, as well as implied, contract. The court refused to give requested instructions on res ipsa loquitur, nuisance, contract, trespass or estoppel. The court submitted the case to the jury on the issue of simple negligence alone. Appellants made no attempt to prove that the sewage system was improperly designed or installed. Appellants raise as error the failure of the trial court to give instructions on the other theories. We agree that nuisance and estoppel on the facts here have no applicability.

“Res ipsa loquitur ... is a doctrine of extremely limited applicability. It provides an injured plaintiff with a commonsense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present.” Goodyear Tire & Rubber v. Hughes Supply, Inc., 358 So.2d 1339, 1341 (Fla.1978). The doctrine applies where:

(1) the instrumentality involved was within the exclusive control of the defendant at the time of the injury, both as to operation and inspection;
(2) the injury was not the result of voluntary action or contribution on the part of the plaintiff; and
(3) the accident would not have occurred had the defendant used due care.

Beach v. Halifax Hospital District, 360 So.2d 114 (Fla. 1st DCA 1978); Brooks v. Plant, 296 So.2d 71 (Fla. 2d DCA 1974).

The city contends that the first element prevents application of the doctrine here because it is impossible to control what enters a sewer system and many objects commonly found in sewers, such as paper, garbage, leaves, sanitary napkins and diapers can, and often do, cause blockages. The city has cited several cases from other jurisdictions which have held the doctrine inapplicable. Jivelekas v. City of Worland, 546 P.2d 419 (Wyo.1976); Freitag v. City of Montello, 36 Wis.2d 409, 153 N.W.2d 505 (1967); Reich v. Salt Lake City Suburban Sanitary Dist. No. 1, 29 Utah 2d 125, 506 P.2d 53 (1973). Other courts, however, have been less reluctant to apply the doctrine to sewer back-up cases. See, e. g., Cummins v. City of West Linn, 21 Or.App. 643, 536 P.2d 455 (1975); Hull v. City of Griggsville, 29 Ill.App.3d 253, 330 N.E.2d 293 (1975).

Here, appellants had no control or voice in the operation, design or installation of the sewer system. Appellee installed the system, performed the maintenance and established the conditions and methods for tying into the sewer lines. It determined the size, number and locations of the system’s lines, manholes and cleanouts. It also determined the number of homes which the sewer would serve and when and where the lines were cleaned and inspected. It knew blockages occur.

Appellants proved that the blockage was not attributable to them. They have shown that the system flooded their house, an event that happens with such infrequency it can be assumed that it happened because appellee failed to use due care. See Hull v. City of Griggsville. They showed that the sewer system was in the exclusive control of the city. This exclusive control is not defeated by the fact that other persons have access to the system because the very purpose of the system is to carry away the collective wastes of the community. The city had exclusive control over the design, maintenance and operation of the system. Therefore, appellants carried their burden of establishing the elements of the doctrine of res ipsa loquitur. The burden should then shift to the city to show not simply that blockages occur, but why first a home must be flooded as a consequence of a blockage. If, in tying into a sewage system, a homeowner assumes the consequences of having his home flooded, the city should be required to come forward and prove this fact. See Royal Furniture v. City of Morgantown, 268 S.E.2d 878 (W.Va.1980). Res ipsa loquitur being applicable, the burden shifts to the city to explain how the house could flood if the system was properly designed and operated.

Appellants also raise as error the court’s failure to give an instruction on an implied contractual condition.

Appellants contend they were compelled by ordinance to tie into the city’s sewer system and to pay monthly charges for sewer service and therefore, the city impliedly contracted to guarantee trouble free service. The city points out that even if appellants’ theory were to have an application in the present case, it was unsupported as the evidence did not show that the city expressly or impliedly guaranteed that its sewer system would be trouble free. If anything, the case law implies that the city may have a duty to provide merely an adequate and properly maintained system and not a perfect one. Tombari v. City of Spokane, 197 Wash. 207, 84 P.2d 678 (1938); Boyer v. City of Tacoma, 156 Wash. 280, 286 P. 659 (1980). While we agree that there is no obligation, expressed or implied for the city to guarantee a trouble free system, we disagree that the city can, with impunity, operate its sewers in both directions. When the city requires a homeowner to connect to its sewers, it forces an entrance into the home. There is implicit in such requirement and entrance an agreement to provide reasonable service, at least to the extent that sewage is removed and not injected. Sharon v. Connecticut Fire Insurance Co., 270 So.2d 900 (La.App.1973). While it may be anticipated that there will be interruptions in this service, there should be an implied agreement that the city will install and operate its systems so that the required sewer connection will not discharge all the neighborhood filth into an owner’s home.

Bromer v. Florida Power & Light Co., 45 So.2d 658 (Fla.1949), is instructive for there plaintiffs claimed the power company had failed to furnish a 220 volt current to its cold storage facility which resulted in the loss of stored meat. The court stated:

This Court should determine and give to the alleged implied contract ‘the effect which the parties, as fair and reasonable men, presumably would have agreed upon if, having in mind the possibility of the situation which has arisen, they had contracted expressly in reference thereto.’

Id. at 660. The court then postulated whether the power company would be required to furnish service at an electrical current of 220 volts, continuously and in any and all events. The court concluded that it would not, holding that the obligation of the utility under such implied contract is to use reasonable care. Unfortunately, in the case before us, appellants requested that the jury be instructed in part that “plaintiff ... would receive service that would be trouble free.” This instruction was incorrect; therefore, we agree that it was not error for the court to refuse this instruction.

When a city requires a homeowner to connect to its sewers, the purpose and intent of that requirement is to provide a sanitary method of disposing of that home’s sewage discharge. While most homeowners would anticipate a possible blockage, few, if any, would anticipate a reverse flow. A requirement that a city design its system so that a home could not be flooded, or to come forward and explain why this is not practical should not be burdensome. We suspect that the reason there are so few cases in point in Florida illustrates that it is practical to design such a system or that few cities require their residents to carry such a loss.

REVERSED and REMANDED for new trial.

ORFINGER, J., concurs without participation in oral argument.

SCHWARTZ, ALAN R., Associate Judge, dissents without opinion.

      . As stated previously, the blockage occurred in the city’s main line (not appellants’ line) and was the result of an accumulation of paper in the line.

      . See also Romero v. Town of Welsh, 370 So.2d 1286, 1289 (La.App.1979):
      When a municipality or governing body undertakes the responsibility of constructing drains and sewers, it has a duty to provide for the adequate disposal of accumulated water and sewage.


text:
    VIC TANNY OF FLORIDA, INC., a Florida Corporation and Ann Daffner, Appellants, v. Barbara CHOVAN, Appellee.
    Nos. 80-977, 80-1213.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1981.
    Rehearing Denied July 13, 1981.
    Arnaldo Velez of Taylor, Brion, Buker & Greene, Miami, for appellants.
    Marilyn P. Liroff of Weaver & Weaver, P. A., Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from a final judgment entered upon a jury verdict. Upon consideration of the issues raised by the appellants in light of the record of the trial court proceedings herein, we have concluded that no reversible error has been demonstrated.

Accordingly, the judgment of the trial court is hereby affirmed.

DOWNEY, ANSTEAD and GLICK-STEIN, JJ., concur.


text:
    Christopher F. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 80-1810.
    District Court of Appeal of Florida, Second District.
    May 6, 1981.
    Rehearing Denied July 1, 1981.
    Jerry Hill, Public Defender, and David A. Davis, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We accept the reasoning of our sister court in Norman v. State, 388 So.2d 613 (Fla. 3d DCA 1980) that the automatic standing rule has not become a part of this state’s law in order to survive the overruling of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) by the United States Supreme Court in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) and Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). Therefore, we affirm.

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


author: ERVIN, Judge.

text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and Servicing Agent, Crawford and Company, Appellants, v. Donald O’NEAL, Appellee.
    No. UU-311.
    District Court of Appeal of Florida, First District.
    May 11, 1981.
    As Corrected on Denial of Rehearing July 13, 1981.
    Richard G. Davis of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for appellants.
    Matías Blanco, Jr., Tampa, for appellee.
   ERVIN, Judge.

In this workers’ compensation action, the appellants contend that the deputy commissioner erroneously determined that the claimant, an inmate at Tampa Correctional Center, was an “employee” within the ambit of Section 440.02, Florida Statutes (1979). We agree and reverse.

The Department of Corrections (DOC) and the Department of Health and Rehabilitative Services (HRS) entered into an agreement whereby five inmates from the correctional institution were regularly assigned to work on the grounds of the W. T. Edwards Building (a facility of HRS which was located near the center), and were to be paid a stipend of $20 per month. The exact fiscal arrangements as to how the money was to be disbursed are not entirely clear from the record. Apparently, the source of funds were from HRS’s other personal service (OPS) funds. These funds were paid by the HRS to the DOC. The DOC in turn credited the accounts of the inmates. The record does not establish whether the proceeds passed through the DOC’s Correctional Work Program Trust Fund.

Although not one of the five inmates involved in the original HRS-DOC agreement, the claimant was later added to the work force, and on July 18,1979, suffered a work-related injury while on the premises of W. T. Edwards. At the tim^ of injury, claimant was classified on “permanent party” status as opposed to a “work-release” status. Basically, the difference between the two is that “a permanent party” prisoner is either not compensated for his labor, or, at the most, is paid a $20-per month stipend by the DOC. A work-release prisoner, on the other hand, is able to earn regular wages at outside employment from a private employer.

Although the claimant’s work at W. T. Edwards was directly supervised by HRS employees, his assignment to perform such work was made by the chief correctional counselor at the prison. Moreover, while he was carrying out his responsibilities at the hospital, he was nonetheless subject to all the “permanent party” procedures of the prison.

The deputy commissioner found that the claimant’s status as a prisoner did not bar his claim for benefits under the workers’ compensation law; that his claim was not barred by the provisions of Section 944.49, because that statute is limited to prisoners engaged in work “under the jurisdiction of the department”, and to compensation paid from the Correctional Work Program Trust Fund; that the claimant was supervised by the staff at W. T. Edwards, and was therefore employed by HRS, making his injury compensable.

The record supports the deputy’s finding that claimant was, at the time of his injury, directly supervised by HRS employees; nevertheless, such finding does not divest DOC’s jurisdiction over the claimant’s work-related activities. Section 945.-11 authorizes the DOC to enter into agreements with other state agencies in order that such agencies “might, under supervision of employees of the [Department [of Corrections], use the services of inmates ... when it is determined by the [Department [of Corrections] that such services will not be detrimental to the welfare of such inmates or the interests of the state in a program of rehabilitation.” (e. s.) A cursory reading of Section 945.11 reveals the legislative intent that inmates shall remain under supervision of the DOC even while “on loan” to another agency. The record establishes that the employees of the DOC at the Tampa Correctional Center maintained overall administrative supervision over its inmates. We feel that such supervision meets the requirements of Section 945.11. We thus reject the contention advanced by the ap-pellee that Section 945.11 is not applicable because no DOC employee directly supervised O’Neal’s work at W. T. Edwards.

The conclusion that DOC maintained jurisdiction over the inmate even while he was performing work for another state agency is further strengthened by reading in pari materia Sections 944.49(2)(a) and 945.11. The former statute provides:

Each prisoner who is engaged in productive work in any state correctional institution, program, or facility under the jurisdiction of the department may receive for work performed such compensation as the department shall determine .... (e. s.)

The word “program” in Section 944.49(2)(a) is amplified by the words “program of rehabilitation” in Section 945.11, and together show that DOC retained jurisdiction over a rehabilitative program in which the inmate participated.

The appellee further argues that because the language of Section 944.49(3) requires that inmates shall be compensated for their work from the Correctional Work Program Trust Fund, and because the claimant was not compensated from that fund, the exclusion denying workers’ compensation benefits provided in Section 944.49(5) is not applicable. We are unable to determine from this record whether HRS’s OPS funds, which were ultimately credited to the claimant’s account, were deposited into, and then disbursed from the fund. Nevertheless, the DOC was entitled to reimbursement from HRS for the claimant’s services pursuant to Section 945.11(2). DOC may not have followed the correct accounting procedure in disbursing funds to the claimant, but the same economic result would have occurred had the appropriate procedure been followed. We can see no reason why the omission of one step in the accounting process would now trigger the claimant’s right to workers’ compensation benefits, which would have otherwise been barred by Section 944.49(5).

We reject the appellee’s contention that the presumption of compensability provided in Section 440.26(1) applies to the instant case. We approve the reasoning of the Industrial Relations Commission in Metropolitan Dade County v. Sikes, IRC Order 2-3169 (May 27,1977), which upheld a JIC’s order denying a county prisoner’s claim. The prisoner had functioned as a gardener in a city park as part of a nursery training program funded by a federal grant at the time he was injured. Although the IRC noted that Section 944.49(5) did not specifically apply to the claimant in the case before it since he was a county prisoner, it observed that the legislature had expressed a clear policy statement that a prisoner should not receive workers’ compensation benefits. We follow the dicta in Sikes here since the appellee was a state “permanent party” prisoner working, albeit voluntarily, pursuant to an agreement between the DOC and HRS.

We are not unmindful of our recent opinion in University of Florida, Institute of Agricultural Services v. Karch, 393 So.2d 621, 622 (Fla. 1st DCA 1981), in which we stated that the Workers’ Compensation Act “applies to all employment unless specifically excluded.” Karch should not be interpreted as requiring a specific exclusion to be contained within the confines of Chapter 440. An exclusion has been created by the enactment of Section 944.49(5), which explicitly refers to the Workers’ Compensation Act. Although the legislature could have expressed its intent more clearly by a cross-reference to Section 944.49(5) in Chapter 440, the two statutes, nonetheless, should be read in pari materia. Cf. American Bakeries Co. v. Haines City, 131 Fla. 790, 180 So. 524 (Fla.1938).

REVERSED.

BOOTH and JOANOS, JJ., concur.

      . The institution is a minimum security facility whose inmates are expected to work under minimum supervision.

      . Section 944.49(5) provides that “[n]o prisoner compensated under this section shall be considered an employee of the state or the department, nor shall such prisoner come within any other provision of the Workers’ Compensation Act.”


author: DANAHY, Judge.

text:
    CENTRAL FLORIDA MACHINERY CO., INC., a Florida Corporation, Appellant, v. David J. WILLIAMS and Stanley, Durrance and Wines, P. A., Appellees.
    No. 80-1093.
    District Court of Appeal of Florida, Second District.
    May 13, 1981.
    Rehearing Denied July 1, 1981.

      Ellis Rubin, Miami, for appellant.
    Donald G. Jacobsen and Robert L. Trohn of Lane, Trohn, Bertrand, Williams & Smith, Lakeland, for appellees.
   DANAHY, Judge.

Appellant, the plaintiff in a malicious prosecution action, appeals a summary judgment for appellees. We reverse.

Appellant was a defendant in a wrongful death action brought by Juanita Watson as administratrix of the estate of Charles R. Watson, deceased. In that suit Watson demanded damages based on theories of negligence, breach of implied warranty, and strict liability in tort. The deceased, Charles R. Watson, had been killed in a citrus sampling machine installed by appellant. In the Watson suit summary judgment was entered in favor of appellant and that summary judgment was upheld by this court. Watson v. Lucerne Machinery and Equipment, Inc., 347 So.2d 459 (Fla.2d DCA 1977), cert. denied, 352 So.2d 176 (Fla.1977).

Appellees are the attorneys who represented Watson. Appellant brought this suit against appellees to recover damages for malicious prosecution in connection with the Watson lawsuit. Appellees moved for summary judgment on the sole ground that “there are no facts indicating that defendants acted with actual malice or that they knew that their clients did so, or that defendants’ actions were equivalent to actual malice.”

Appellees submitted two affidavits in support of their motion. One affidavit was that of appellee Williams in which he recited his thought processes and the reasons for his conclusion that there was probable cause for the prosecution of the Watson suit. The affidavit recited that Williams and his law firm investigated the facts and circumstances surrounding the accident through the use of a privately employed investigator and by reviewing reports of the sheriff’s department and workers compensation carrier. The other supporting affidavit was that of Eugene Harris, an experienced attorney, who also stated that he believed there was probable cause for the filing of the Watson lawsuit. Appellant submitted no opposing affidavit but did submit a response to the motion for summary judgment with exhibits attached which was considered by the trial judge before the entry of the summary judgment.

The. ground asserted in the motion for summary judgment and appellant’s response framed the legal issue facing the trial judge at the hearing. In its response, appellant pointed out that the motion would hold it to the burden of showing in this suit that appellees acted with actual malice. Appellant urged that a different standard prevails in Florida, arguing that “while malice is one of the required elements to be proven in a malicious prosecution action, this kind of malice is shown if and when a plaintiff proves lack of probable cause; thus, malice is inferred.” Appellant relied on the recent decision in Fee, Parker & Lloyd, P. A. v. Sullivan, 379 So.2d 412 (Fla.4th DCA 1980) for the proposition that for purposes of an action for malicious prosecution, malice is inferred when lack of probable cause is proven by the plaintiff. We agree.

The trial judge entered summary judgment for appellees on a finding that “there is no evidence of actual malice, or conduct of such egregious negligence as to be [the] substantial equivalent of actual malice,” and “actual malice or its substantial equivalent should be required before suit for malicious prosecution may be successfully maintained by [a] third party against the attorney for another party.” We hold that the trial judge erred in so ruling, and reverse.

We express no opinion as to the propriety of the summary judgment had the issue of “legal malice” and the existence or want of probable cause been presented.

REVERSED and REMANDED for further proceedings consistent with this opinion.

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


author: SCHWARTZ, Judge.

text:
    Curtis MELTZER, M. D., Appellant/Cross-Appellee, v. Frances MELTZER, Appellee/Cross-Appellant.
    Nos. 79-1725, 79-1726.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Rehearing Denied July 15, 1981.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant/cross-appellee.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Leonard H. Rubin and Paul A. Louis, Miami, for appellee/cross-appellant.
    Before SCHWARTZ and FERGUSON, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

In Meltzer v. Meltzer, 356 So.2d 1263 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 460 (Fla.1979), this court held that an increase in the husband’s child support obligations for the parties’ two children from $750 to $850 per month was manifestly insufficient. The case was remanded for the trial court to “fix a more adequate amount . . . as it may determine.” 356 So.2d at 1266. Following an extensive trial on the issue, the court increased the award to $1,800. Dr. Meltzer now challenges that determination. We disagree with his position. As he did in the previous proceeding, see 356 So.2d 1264, n.1, the husband has stipulated to his financial ability to make these payments. There is also competent evidence in the record to support the conclusion that the amount is commensurate with the children’s needs. Particularly in the light of our earlier express ruling on the subject, we therefore cannot find that the amount of the increase provided below represents an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Adams v. Adams, 376 So.2d 1204 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1109 (Fla.1980); Krischer v. Krischer, 337 So.2d 1011 (Fla. 3d DCA 1976); Jelke v. Jelke, 233 So.2d 408 (Fla. 3d DCA 1970), cert. denied, 238 So.2d 107 (Fla.1970).

We similarly reject the contention that the $45,000 award to the wife’s attorneys is excessive. As in Adams v. Adams, supra, “the figure is well within the range of the expert testimony on the subject, and is entirely consistent with the evidence as to the hours and effort expended, the results achieved, and the quality of the services rendered.” 376 So.2d at 1205-06. See also, Posner v. Posner, 315 So.2d 175 (Fla.1975); Snider v. Snider, 375 So.2d 591 (Fla. 3d DCA 1979), appeal dismissed, 385 So.2d 760 (Fla.1980); Zohlman v. Zohlman, 235 So.2d 532 (Fla. 3d DCA 1970), cert. denied, 238 So.2d 430 (Fla.1970); Frischkorn v. Frischkorn, 223 So.2d 380 (Fla. 3d DCA 1969), cert. denied, 229 So.2d 868 (Fla.1969).

By cross-appeal, Ms. Meltzer claims error in the fact that the trial judge awarded only $25,000 to compensate for additional child support before the date of the order under review, July 3, 1979, rather than making the increase fully retroactive to the filing of the original petition for modification on August 1,1974. Again, we find no error. It is indeed the case that both Meltzer v. Meltzer, supra, at 356 So.2d 1266, and the earlier decision in Meltzer v. Meltzer, 262 So.2d 470, 472 (Fla. 3d DCA 1972), held that any increase should take effect from the date that the respective application for modification was filed. But it is obvious that each case was based on the determination, as stated at 262 So.2d 472, that “[t]he evidence is clear that the needs of the children existed as of the date of the filing of the petition.” That is not true of the present record. Indeed, the wife effectively contended below, and argues here, that the $1,800 award is justified because of the increased expenses caused by the rampant inflationary trend between 1974 and 1979. While this argument is a perfectly valid one, see Powell v. Powell, 386 So.2d 1214 (Fla. 3d DCA 1980), it necessarily also acknowledges that the amounts required by the children retrogressively diminished from the 1979 $1,800 figure through the previous five years. Moreover, during that period, Dr. Meltzer made very substantial payments for the children’s camp and school expenses, which were not required by any existing order or the effect of the subsequent one now under review, and which therefore may properly have been credited against the retroactive increase. Under these circumstances, we hold that full retro-activity was not required as a matter of law, and that the trial court did not abuse the discretion it possesses in fixing the degree and extent to which a modification should be given preorder effect. McArthur v. McArthur, 106 So.2d 73 (Fla.1958); Brisco v. Brisco, 355 So.2d 506 (Fla. 2d DCA 1978); Simon v. Simon, 155 So.2d 849 (Fla. 3d DCA 1963); see also, Arnold v. Arnold, 332 Ill.App. 586, 76 N.E.2d 335 (1947); Hoops v. Hoops, 266 App.Div. 512, 42 N.Y. S.2d 635 (1943); 27A C.J.S. Divorce § 240(a) (1959).

Affirmed.

      .The case had been previously here in Meltzer v. Meltzer, 262 So.2d 470 (Fla. 3d DCA 1972) and Meltzer v. Meltzer, 221 So.2d 751 (Fla. 3d DCA 1969). This is thus no less than the fourth appearance of this case before us.

      . In addition, pursuant to the father’s express agreement to make these payments, the order required him to pay for the children’s camp, private school, and medical expenses.

      . Complete retroactivity would have resulted in a judgment of well over $50,000 in arrearages.

      . At oral argument, the wife’s counsel conceded that there was no retroactive obligation to | make the payments to which the husband agreed in the proceedings below. See note 2, supra.


text:
    Juan ALDAMA, George Casanova, and Bernardo Soto, Appellants, v. The STATE of Florida, Appellee.
    No. 80-972.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Rehearing Denied July 10, 1981.
    Essen & Spiegel and Eric B. Feldman, Coral Gables, for appellants.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

We affirm the judgments of conviction upon a holding that (1) notwithstanding the defendants’ claim that the witnesses called by the State at the suppression hearing were in hopeless conflict and were inherently incredible, no error is shown where the trial court’s findings of fact, from which flowed the unassailed and unassailable conclusion of law that the search was valid, were supported by substantial competent evidence, Boykin v. State, 309 So.2d 211 (Fla. 1st DCA 1975); and (2) the defendants’ motion to dismiss the information because signed by an Assistant State Attorney was properly denied, see State v. Rivero, 400 So.2d 34 (Fla. 3d DCA 1981).

Affirmed.


author: FERGUSON, Judge.

text:
    The STATE of Florida, Appellant, v. Angel Gavino RIVERO, Appellee.
    Nos. 80-1291, 80-1292.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.

      Janet Reno, State Atty. and Stephen V. Rosin, Asst. State Atty., for appellant.
    Nathan & Williams and Douglas L. Williams, Robert F. Weiner, Miami, for appel-lee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   FERGUSON, Judge.

The State of Florida appeals from two orders of the Circuit Court, Criminal Division, Eleventh Judicial Circuit, Dade County, Florida, dismissing two felony informa-tions solely because they were both signed by an assistant state attorney rather than by the state attorney. Jurisdiction is pursuant to Florida Rule of Appellate Procedure, 9.140(c)(1)(A). We reverse.

Florida Rule of Criminal Procedure 3.140(g) expressly provides that: “An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his good faith in instituting the prosecution and certifying that he has received testimony under oath from the material witness or witnesses for the offense .. .. ” (emphasis added). This rule was found to be a proper exercise of the Supreme Court’s rule-making authority under Article V, Section 2 of the Florida Constitution (1968, as amended, effective 1973). State v. Miller, 313 So.2d 656 (Fla.1975). See also In re Florida Rules of Criminal Procedure, 309 So.2d 544, 546 (Fla.1975); see, e. g., In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1973). Florida courts have consistently held that the signing or verification of an information is a procedural matter. See, e. g., State v. Polo, 242 So.2d 457 (Fla.1970); Champlin v. Cochran, 125 So.2d 565, 566 (Fla.1960); Dugger v. State, 351 So.2d 740 (Fla.3d DCA 1977). See also Haselden v. State, 386 So.2d 624 (Fla. 4th DCA 1980) (failure to timely raise a defect in an information constitutes a waiver of the defect unless the information wholly fails to charge a crime). We find the authority granting an assistant state attorney power to sign a felony information in Florida Rule of Criminal Procedure 3.140(g), a rule of practice and procedure properly promulgated by the Supreme Court under Article V, Section 2, Florida Constitution (1973).

We respond to appellees’ argument by noting that a second authority exists in Section 27.181(2), Florida Statute^ 27.181(3) (amended 1980). Section 27.181(2) (1980) provides: “Each assistant state attorney appointed by a state attorney under the authorization of the act shall have all of the powers and discharge all of the duties of the state attorney appointing him, under the direction of said state attorney. No such assistant state attorney, may sign in-formations unless specifically designated to do so by the state attorney....” Section 27.181(3) was amended subsequent to this cause of action. Appellees argue, and the trial court apparently found, that the statute in effect at the time of this case, the pre-amended Section 27.181(3) (1979), prohibited assistant state attorneys from signing felony informations. This argument was conclusively rejected by the supreme court in State v. Miller, supra. Appellees’ argument that Miller, supra, has been rendered void by the subsequent repeal of Section 27.324, Florida Statutes (1967) is without merit.

The issue in Miller was whether Section 27.324, Florida Statutes (1973) conflicted with Section 27.181(3), Florida Statutes (1973). The court found no conflict. The court held that assistant state attorneys serve as alter egos of the state attorney appointing them and were properly granted the power to sign felony informations. The court’s decision in Miller, supra, rests squarely upon its finding under Section 27.-181(3) — and not under Section 27.324 — that the Florida constitution (adopted in 1968 and amended in 1973) contains no constitutional limitations on the power of the supreme court or legislature to grant assistant state attorneys the power to sign felony informations. The court in Miller found that the exception in Section 27.181(3) regarding signing of felony informations was based on the constitutional limitation of the 1885 Florida Constitution in effect when the statute was originally enacted. With the adoption of the 1968 constitution, this constitutional limitation no longer existed. Since there was no longer a constitutional limitation, the exception did not apply and assistant state attorneys had all of the powers and duties of the state attorney as provided by both Sections 27.181(3) and 27.324. Recognizing that Section 27.324 had become superfluous, the legislature repealed it, effective in 1980. See note 2, supra.

The holding of Miller, supra, remains intact both as to Section 27.181(3) and as to Rule 3.140(g). Because we believe that the signing of felony informations is a procedural matter, we find, independently from the statute, that the court’s rule-making power under Article V, Section 2, Florida Constitution (1973) and Rule 3.140(g) is sufficient authority for holding that designated assistant state attorneys have the power to sign felony informations.

Reversed.

      . There is no challenge as to whether this assistant state attorney was properly designated.

      . Article V, Section 2, Florida Constitution (effective January 1973) provides:
      (a) The supreme court shall adopt rules for practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought. These rules may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.

      . Section 27.181(3) (1973), originally enacted as Section 3 of Chapter 67-188, Laws of Florida, 1967, provided:
      Each assistant state attorney appointed by a state attorney under the authorization of this act shall have all of the powers and discharge all of the duties of the state attorney appointing him, under the direction of said state attorney, except, however, that due to constitutional limitations, no such assistant may sign informations....
      Section 27.324, Florida Statutes (1973), originally enacted as Chapter 69-212, Laws of Florida, 1969, provided in its entirety that “the assistant state attorneys properly appointed by each state attorney are vested with all the powers, duties, and responsibilities of state attorneys.” In 1977, the Florida legislature repealed Section 27.324 as duplicating Section 27.181(3) (1977).