author: PER CURIAM.

text:
    Ex parte Sue DOLVIN. (Re: Sue Dolvin v. State of Alabama).
    79-175.
    Supreme Court of Alabama.
    Sept. 12, 1980.

      Jerry R. Knight, Decatur, for petitioner.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for respondents.
   PER CURIAM.

We granted certiorari to review the decision of the Court of Criminal Appeals in Dolvin v. State, 391 So.2d 666 (Ala.Cr.App.1979). The main issue presented for our consideration is whether the trial court erred in permitting a forensic odontologist to testify that in his opinion a skeleton found in Seminole County, Florida, was that of Charles Ray Lovett, based on a comparison of the skeletal teeth with inter vivos photographs of Charles Ray Lovett.

The facts as found in the opinion of the Court of Criminal Appeals are as follows: On the night of August 16, 1970, Charles Ray Lovett mysteriously disappeared from his home in Decatur. Seven years later a skeleton was found in Seminole County, Florida. The state indicted Mrs. Dolvin for Lovett’s murder, and at trial introduced into evidence, over her objection, the testimony of a forensic odontologist who compared the skeletal teeth found in Seminole County, Florida, with two inter vivos photographs of Lovett in an attempt to show that the skeleton was that of Charles Ray Lovett. The petitioner was convicted of the murder of Charles Ray Lovett and sentenced to life imprisonment. The Court of Criminal Appeals affirmed.

On March 13, 1970, defendant’s husband, Glenn Dolvin, was indicted for the theft of Lovett’s automobile. It was the State’s theory at trial that Lovett was kidnapped and murdered by Sue Dolvin and Glenn Dolvin in order to prevent Lovett from testifying at Glenn Dolvin’s larceny trial. The evidence presented against Sue Dolvin was stronger than the evidence presented against Glenn Dolvin in the following two respects: Miss Debbie Garrett testified that on the night of Lovett’s disappearance, August 16,1970, she had seen and identified as Sue Dolvin, a woman who was driving a Volkswagen up and down the street on which Lovett lived. Miss Garrett testified that there were two men in the car with the woman, but she was unable to identify those two men. Secondly, there was evidence from Florida Highway Patrolman Clarence Simpson, who testified that around 1:00 a. m. on August 18, 1970, Sue Dolvin came into the highway patrol station at Ocala, Florida, and signed a lost-tag form. The officer said that Mrs. Dolvin had smudges all over her and that her fingernails and clothes were very dirty and she appeared as if she had been camping in the woods. The skeletal remains alleged to be those of the deceased were found in Seminole County, Florida, not far from Ocala. The facts of the instant case are set out more extensively in the opinion of the Court of Criminal Appeals.

On January 26, 1979, Glenn Dolvin, the petitioner’s husband, was convicted of the offense of murder in the first degree of Charles Ray Lovett. The Court of Criminal Appeals reversed and rendered the trial court’s judgment, holding: “Our review of the evidence leaves no doubt that the defendant was convicted on speculation, suspicion, and conjecture. The judgment is therefore reversed.” Glenn Dolvin v. State, 391 So.2d 129 (Ala.Cr.App.1979). We reversed the decision of the Court of Criminal Appeals in Dolvin v. State, 391 So.2d 133 (Ala.1980).

Petitioner contends that the trial court erred to reversal insofar as it held admissible expert opinion testimony of Dr. Richard Souviron, a forensic odontologist, concerning identification of skeletal remains founded upon his comparison of the skeletal remains with inter vivos photographs of the victim. Dr. Souviron compared facial structure, occlusion, and the shape of teeth and jaw of a human skull found in Seminole County, Florida, with those of Charles Ray Lovett, as depicted in the inter vivos photographs taken of Lovett.

The seminal case establishing the safeguard against admission into evidence of facts gleaned from an unreliable scientific test is Frye v. United States, 293 F. 1013 (D.C.Cir.1923). In Frye, the Court of Appeals for the District of Columbia ruled that a systolic blood pressure lie detector test had “not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.” 293 F. at 1014. The rule as stated by that court is as follows:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well— recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923).

Since the lie detector test has not gained the required acceptance in the intervening fifty-seven years, length of existence is clearly not determinative in ascertaining the admissibility of a scientific test. Factors which are determinative include: Whether a test is readily assignable to any particular well-established and defined scientific discipline; whether the test is either applied by a mechanical device or purports to decipher specific data requiring scientific paraphernalia to produce; whether the test tends to trench very closely upon an ultimate issue in the case; whether the test is based on a syllogism that has a major premise or assertion that a fact of legal interest is or is not true, while that fact is only probably true; whether the test relates to mental state as opposed to physical condition; and whether the test attempts a scientific diagnosis of testimony and its veracity by mechanical means. See J. Richardson, Modern Scientific Evidence §§ 6.2, 6.17 (2d ed. 1974); Strong, Questions Affecting the Admissibility of Scientific Evidence, 1970 U.Ill.L.F. 1. The above factors are not applicable to the test used in the case before us now. The forensic odon-tology test applied by Dr. Souviron is in the nature of a physical comparison rather than a scientific test or experiment, as was the case in Frye. Therefore, the Frye test is inapplicable, and will not be resorted to here.

Alabama case law supports the admission of inter vivos photographs for the purpose of allowing the jury to compare the teeth of a human skull with those of the person depicted in the photograph. DeSilvey v. State, 245 Ala. 163, 16 So.2d 183 (1944). Expert testimony comparing inter vivos photographs with a human skull is a refinement and extension of this procedure, but is nonetheless admissible, assuming the proper predicate is laid. In the case before us, there was a sufficient predicate laid at the trial level to justify admissibility. Dr. Souviron’s testimony as to his qualifications in the field of forensic odontology constituted the predicate necessary for the identification testimony that followed. Additionally, the trial court asked Dr. Souviron: “Is what you did a recognized way of comparing these things in the field of science that you are in?” Dr. Souviron answered, “Yes, sir.”

“The increasing use of technology in criminal investigations, when consistent with the rights of the accused, should not be inhibited.” Chatom v. State, 348 So.2d 838 (Ala.1977). Petitioner has failed to show that the admission of the forensic odontology test violated her rights. Since the evidence was properly admissible, the trial court committed no error in allowing it to be heard.

Petitioner objects to the jury charge defining legal malice as “the right of the jury to infer that there was malice.” This objection, however, fails to rise to the level of reversible error, since the charge, taken as a whole, was correct. Gosa v. State, 273 Ala. 346, 139 So.2d 321 (1962). Her allegation that defense attorney was prevented from conducting a “thorough and sifting cross-examination” is similarly without merit, since the court only sustained objections to argumentative and completely irrelevant questions by defense attorney. Petitioner argues further that the jury drew inferences from her failure to testify, but she fails to show that the prosecutor improperly commented on her failure to testify, such comment by the prosecutor being the grounds for reversal under Alabama law. See Code 1975, § 12-21-220. She also charges that the Court of Criminal Appeals applied an incorrect standard in ruling on her motion for change of venue. In support of this argument, petitioner cites Anderson v. State, 362 So.2d 1296 (Ala.Cr.App.1978), for the proposition that in order to obtain a change of venue, a defendant must show that as a result of pretrial publicity it is “reasonably unlikely that the defendant can secure a fair and impartial trial.” 362 So.2d at 1299. Anderson also holds, however that “[njewspaper articles, without more, are not evidence on a motion for change of venue; their effect must be shown.” 362 So.2d at 1298. The Court of Criminal Appeals’ requirement of actual jury prejudice thus comes within the Anderson standard.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.

FAULKNER and EMBRY, JJ., dissent.

BLOODWORTH and ALMON, JJ., not sitting.


source: Caselaw Access Project

author: McDONALD, Justice.

license: Public Domain

text:
    PARK BENZIGER & CO., INC., Appellant, v. SOUTHERN WINE & SPIRITS, INC., Appellee.
    No. 58916.
    Supreme Court of Florida.
    Dec. 11, 1980.
    Angus M. Stephens, Jr., Coral Gables, for appellant.
    Thomas E. Lee, Jr. of Lee, Murphy & Coe, Miami, for appellee.
    John M. Johnston and Robert G. Haile, Jr. of White & Case, Palm Beach, for Distilled Spirits Counsel of the United States, Inc., amicus curiae.
   McDONALD, Justice.

In an action for declaratory relief brought by Park Benziger & Co., the trial judge passed upon the constitutionality of section 565.095, Florida Statutes, which deals with the distribution and sale of intoxicating liquor. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

The issues sought to be determined are (1) whether the statute is applicable to distributor contracts in existence on the statute’s effective date, (2) whether a manufacturer or its representative may withdraw a particular brand or label of spirituous or vinous beverage from a distributor without going through the procedure prescribed by section 565.095(5), and (3) whether such a manufacturer may appoint an additional distributor or distributors when that manufacturer has an existing distributor without first terminating the existing distributor in accordance with the provisions of section 565.095.

We hold that the statute cannot be applied to distributor contracts in existence prior to July 1, 1978, and decline to answer the other questions.

Acting under an oral contract with Park Benziger & Co., Southern Wine and Spirits had been the exclusive Florida distributor of a Scottish whiskey labeled “Old Rarity” for approximately eight years prior to July 1, 1978. Since no termination date for this contract existed, it was terminable at will by either party. § 672.309, Fla.Stat.

After July 1, 1978, Park Benziger, dissatisfied with the sales level of Old Rarity, asked Southern either to give up Old Rarity or to allow Park Benziger to appoint a second distributor in addition to Southern. Southern objected and claimed that section 565.095(5) precludes the supplier from doing either of those things. Unsure of its position under the statute, Park Benziger sued in circuit court for declaratory relief. The trial judge ruled that the statute is constitutional, that it applied to the parties to this action, and that the manufacturer cannot appoint an additional distributor without going through the procedure set forth in the act. In doing so he did not directly address the question of whether the act impermissibly impaired the terms of contracts in existence prior to the statute’s effective date.

The twenty-first amendment to the United States Constitution recognizes the authority of a state to regulate the sale and distribution of liquor within its borders. A state may determine the conditions upon which liquor can come into its territory and what will be done with it after it gets there. United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 951 (1945). In upholding New York’s Price Affirmation Act (which was similar to section 565.15 of the Florida Statutes) the United States Supreme Court affirmed this authority and recognized the state’s power in this regard. Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336 (1966). In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), that Court upheld the prohibition of the sale of alcohol by the drink in establishments that permitted certain types of dancing and nudity.

But the fact that intoxicating beverages is the subject matter of legislation does not automatically make such legislation valid, and such an act must fall if it violates a constitutional prohibition. In Craig v. Boren, 429 U.S 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), the Court struck down an Oklahoma law setting the drinking age for males at 21 and for females at 18 as a violation of equal protection. In Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350 (1964), the Supreme Court held that New York’s liquor licensing law did not extend to a company headquartered at the New York Port Authority whose sale of liquor commenced outside the continental limits of the United States. This Court in Division of Beverage, Dep’t. of Business Regulation v. Bonanni Ship Supply, Inc., 356 So.2d 308 (Fla.1978), held that a statute regulating export activity of “in bond” liquor was subject to a previous federal regulatory scheme and was, therefore, in violation of the commerce clause of the United States Constitution.

Both the United States and the Florida Constitutions provide that no law impairing the obligation of contracts shall be passed. Exceptions have been made to the strict application of these provisions when there was an overriding necessity for the state to exercise its police powers, but virtually no degree of contract impairment has been tolerated in this state. Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla.1975).

We are unable to discern in this statute a public purpose of sufficient need to authorize an impairment of existing contractual agreements. The trial judge opined that its purpose was the prevention of the “tied-house evil”. This is not clear from the statute itself nor from any history of its enactment, but if this were the purpose, that objective does not create sufficient need for the exercise of police power in conflict with these parties’ constitutional rights.

In Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla.1979), we discussed the analysis to be performed in deciding whether a statute unconstitutionally impairs the obligation of a contract:

To determine how much impairment is tolerable, we must weigh the degree to which a party’s contract rights are statutorily impaired against both the source of authority under which the state purports to alter the contractual relationship and the evil which it seeks to remedy. Obviously, this becomes a balancing process to determine whether the nature and extent of the impairment is constitutionally tolerable in light of the importance of the state’s objective, or whether it unreasonably intrudes into the parties’ bargain to a degree greater than is necessary to achieve that objective.

Id. at 780.

We agree with Park Benziger’s contention that section 565.095(5) cannot be applied to the instant contract. If the statute were applied here, the contract originally terminable at the will of either party would become one in which one party (the supplier) could terminate only upon a showing of good cause to an administrative agency.

This finding, which authorizes the termination of the distributorship agreement at the will of either party, settles the controversy between these parties. We therefore refrain from addressing the other constitutional challenges or questions involving the statute’s interpretation.

This cause is remanded to the circuit court for entry of judgment consistent with this opinion.

It is so ordered.

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

      . § 565.095(5), effective July 1, 1978, reads as follows:
      WITHDRAWAL OF REGISTERED BRAND OR LABEL.-No brand or label registered hereunder or any brand or label of wine may be withdrawn from any distributor after it has been sold by a manufacturer to any distributor unless good cause for its withdrawal is shown by the manufacturer. Withdrawal of a registered brand or label by a manufacturer shall be permitted only if written notice is sent by certified mail to any distributor carrying the manufacturer’s brand or label to the division prior to its withdrawal. ■ If no objection is lodged with the division by a distributor carrying the brand or label intended to be withdrawn within the time as hereinafter set forth, the brand or label may be withdrawn without a showing of good cause 60 days after the division’s receipt of the manufacturer’s notice of intent to withdraw. Any distributor carrying the brand or label or line who objects to its withdrawal shall file its written objection by mail with the division and the manufacturer within 60 days from its receipt of the manufacturer’s notice of intent to withdraw. The distributor’s objection shall be deemed a petition for declaratory statement, must comply with the division’s administrative rule for such petitions, and shall be disposed of thereby. In rendering its decision, the division shall consider the reasons given by the manufacturer to justify the withdrawal and the distributor’s reason against the withdrawal. If the division determines that good cause to justify the withdrawal is absent, the division may prohibit the brand or label from being withdrawn, and failure on the part of the manufacturer so prohibited to ship the distributor a reasonable amount of the brand sought to be withdrawn will result in the withdrawal from sale in this state of all its brands. All distributors carrying a particular brand or label of spirituous or vinous beverages as of July 1, 1978 shall be deemed to be the distributors for the manufacturers of such brands or labels. No other distributors may be appointed by any manufacturer or representative of a manufacturer to carry the brands or labels already distributed on July 1, 1978 unless the division first approves the withdrawal from the existing distributor pursuant to this act. The purchase of any spirituous or vinous beverages by any licensed wholesaler or distributor from any manufacturer who has not complied with the provisions of this subsection is prohibited.

      . U.S.Const., art. I, § 10, cl. 1; art. 1, § 10, Fla.Const.

      . “Tied-house evil” is the monopolistic control of distributors by manufacturers of intoxicating liquors. See Pickerill v. Schott, 55 So.2d 716 (Fla.1951).

      .The importance of this statute to the state is far less than the curative statute dealing with road contracts which this Court, by a narrow margin, said could not impair contracts in State, Dep’t. of Transp. v. Edward M. Chadbourne, Inc., 382 So.2d 293 (Fla.1980).

      . The Supreme Court of Delaware reached a similar conclusion on a similar fact situation in Globe Liquor Co. v. Four Roses Distillers Co., 281 A.2d 19 (Del.1971), cert. denied 404 U.S. 873, 92 S.Ct. 103, 30 L.Ed.2d 117 (1971).


author: PER CURIAM. ADKINS, Acting Chief Justice,

text:
    THE FLORIDA BAR, Complainant, v. Jerome A. SIMONS, Respondent.
    No. 59312.
    Supreme Court of Florida.
    Dec. 11, 1980.
    Harris K. Solomon, Bar Counsel and Lance J. Thibideau, Asst. Staff Counsel, Fort Lauderdale, Wilson C. Atkinson, III, Chairman, Grievance Committee 17 “D”, Hollywood, and James P. Hollaway, Deputy Staff Counsel, Tallahassee, for complainant.
    Louis M. Jepeway, Jr. of Jepeway & Jepeway, Miami, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Jerome A. Simons, a member of The Florida Bar is presently before us on complaint of The Florida Bar and Report of Referee. Pursuant to Rule 11.-06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this court. No petition for review pursuant to Rule 11.09(1), Integration Rule has been filed.

Having considered the pleadings and evidence, the referee found as follows:

1. Jerome A. Simons is, and at all times material to this action, a member of the Florida Bar.
Sometime previous to June 21, 1974, a Mr. and Mrs. Powell, with the assistance of a real estate broker, decided to purchase a home owned by Mr. and Mrs. Ardito. The original purchase price of this home was $38,000, which was evidenced by a contract executed on March 8, 1974. However, neither the purchasers, nor the home, qualified for Veteran’s Administration financing in that amount. The real estate broker prepared a second contract for the sellers and purchasers dated approximately March 28, 1974 reflecting a sales price of $33,000. This submission to Veterans’ Administration financing was approved, both as to the purchasers and subject real property. The respondent was not involved in any of the foregoing.
2. On June 21, 1974 the real estate broker brought the sellers and purchasers to the office of the respondent requesting assistance in the preparation of a promissory note evidencing the existence of a $5,000 indebtedness owed by the Powells to the Arditos. During the preparation of the promissory note the respondent ascertained the Powells were purchasing the Ardito’s home. The respondent recommended the $5,000 promissory note be secured by a mortgage being placed upon the home being purchased by the Powells and the mortgage being recorded immediately after the real estate transaction was closed. The respondent was not present at the real estate closing but was advised in July of 1974 the closing had taken place, at which time he recorded the mortgage.
3. In the Spring of 1975 the respondent represented Gloria Hood, a former real estate broker, in a suit for commissions and for the first time learned there had been two contracts between the Powells and Arditos for the purchase of the Ardi-to’s home. During this litigation the respondent became aware that the $5,000 promissory note and mortgage he had prepared the previous year for these parties represented the difference between the first contract price which had been rejected for financing by the Veteran’s Administration, and the second contract price which had been accepted for financing by the federal agency. The respondent became aware the $5,000 promissory note and mortgage, evidencing the so-called “preexisting indebtedness” owed by the Powells to the Arditos, was in actuality a hidden portion of the purchase price of the Ardito’s home.
4. The Veteran’s Administration began an investigation into the sale of the Ardi-to’s home. The Arditos and Powells contacted the respondent and advised him of the investigation by the federal agency. The purpose of the investigation was to determine whether there had been additional unauthorized consideration flowing from the Powells to the Arditos in violation of the laws pertaining to Veteran’s Administration financing. During this meeting the respondent was advised by the Powells and Arditos that there had not been a preexisting $5,000 indebtedness between them. In fact, the $5,000 promissory note which was secured by a mortgage evidenced the deferred portion of the purchase price of the Ardito’s home in addition to the $33,000 purchase price reported to the Veteran’s Administration.
5. The respondent, after being informed of the facts surrounding the sale of the Ardito’s home, advised the Arditos and the Poweils when called upon to testify under oath, to persist in their story concerning the $5,000 preexisting indebtedness. The respondent advised the Pow-ells and the Arditos, when called upon to testify under oath, to state there was no relationship between the $5,000 note and the mortgage securing it and the purchase of the home, even though the respondent now knew that the note, in fact, was part of the consideration for the purchase of the Ardito’s home. The respondent advised the Powells to create I.O. U. 's to support the story of a preexisting indebtedness, even though the respondent knew that there was no such indebtedness. The respondent knew there was a possible violation of federal law in the Powell’s payment of concealed consideration.
6. During the course of the Veteran’s Administration investigation the respondent prepared and delivered an affidavit to the investigator for the agency. The affidavit, while truthful, was incomplete, in that, it did not state all the facts concerning the Powell and Ardito transaction of which the respondent was then aware. On November 5,1979 the respondent was advised by the United States Attorney for the Southern District of Florida that he was a target for a grand jury investigation into allegations of subordination of perjury. As a result of a letter dated November 5, 1979 from the United States Attorney, the respondent consulted counsel. After the consultation and upon advice of counsel, he contacted the Florida Bar and the United States Attorney in an effort to cooperate with both entities.
7. At the hearing before the referee on June 20,1980, the respondent, under oath, testified he knew at the time he rendered his advice to the Arditos and Powells to testify under oath, consistently with their fabricated story concerning the $5,000 preexisting indebtedness, that he was rendering improper advice. No evidence has been submitted to the referee of prior or subsequent professional misconduct by the respondent. The respondent .has practiced law and been a member of the Michigan Bar from 1952 through 1961 and a member of the Florida Bar from 1961 to the present time. Jerome A. Si-mons is a sole practitioner engaged in an office practice and does not participate in courtroom litigation. When initially confronted by his clients in the matter which now rests before the referee, Mr. Simons admitted he knew the advice he was rendering was wrong; he sought no council [sic] from his colleagues, nor referred to any books for guidance relating to the situation in which he found himself. However, upon being exposed, has admitted his participation in this matter.
8. Jerome A. Simons has violated Disciplinary Rule 1-102(A)(4, 5 and 6), in that, he did engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; he engaged in conduct that is prejudicial to the administration of justice and he engaged in conduct which adversely reflects upon his fitness to practice law.
9.Jerome A. Simons violated Integration Rule of the Florida Bar 11.02(3)(a) by being guilty of the commission of acts contrary to honesty, justice and good morals in the course of his relations as an attorney within the State of Florida and is a member of the Florida Bar.

The referee recommends that respondent be found guilty of misconduct justifying disciplinary measures and recommends that respondent be suspended from the practice of law for three months and receive a public reprimand.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, Jerome A. Si-mons, is hereby suspended from the practice of law for a period of three months commencing December 22,1980, and respondent is publicly reprimanded and the publication of this order and judgment shall constitute a public reprimand.

The Motion for Waiver of Requirement of Notice to Clients filed by attorney for respondent is hereby denied.

Execution is hereby directed to issue against respondent for costs in the amount of $353.50.

It is so ordered.

BOYD, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

ADKINS, Acting Chief Justice,

concurring in part and dissenting in part:

I concur in the approval of the findings and recommendations of the referee but would grant the Motion for Waiver of Requirement of Notice to Clients.


text:
    Helen Elizabeth GASTER, Appellant, v. Gordon D. GASTER, Appellee.
    No. 78-2287.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1980.
    On Rehearing Jan. 7, 1981.
    James R. Rich of Christiansen, Jacknin & Myers, Palm Beach, for appellant.
    Ronald Sales, Palm Beach, for appellee.
   ON REHEARING

PER CURIAM.

We have previously withdrawn our opinion of October 29, 1980, in this case, and now substitute for it the following after reconsideration.

Appellant, the former wife, brings this appeal from the alimony and related provisions contained in a final judgment of dissolution of marriage.

The factual background against which the trial court made the determinations now on appeal is uncomplicated and may be simply stated. The parties, both age 44 at the time of the final hearing, had been married 20 years. Three children, now ages 12, 16 and 18 resulted from the union. The wife, after teaching for 2 years, was required to forsake that career to raise a family. Expert medical testimony established that she suffers from a back problem which is approximately 10% disabling. The husband, a stockbroker, can reasonably be expected to earn an annual income in excess of $100,000 and has a net worth that varying testimony placed at between $150,000 and $250,000. The marital homeplace is valued at $120,000, with an equity of approximately $80,000.

The final judgment dissolved the marriage, provided for custody, awarded wife exclusive possession of the marital home, and imposed various financial obligations on the parties. A subsequent order gave the husband certain items of tangible personal property.

As a result of the final judgment, the wife receives $2,000 per month as “permanent alimony” which is to “terminate upon the remarriage of Wife or should she become self-supporting.”

First, we do not accept appellant’s premise that refusal to give the wife the husband’s interest in the jointly owned marital residence as lump-sum alimony was an abuse of discretion. The petition for rehearing correctly points out that Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), would seem to authorize, under appropriate circumstances, an award of lump sum alimony to ensure am equitable distribution of property acquired during the marriage. While the argument is otherwise apt it ignores the fundamental precept that such discretion is lodged with the trial court rather than with the district court of appeal. Having tested that exercise of discretion by application of the Canakaris “reasonable man” inquiry and finding that reasonable men could disagree, our authority to deal with that aspect of the judgment is exhausted.

Similarly we are not prepared to overturn the award of permanent, periodic alimony. This court has previously upheld an award of permanent alimony of $1,500 monthly and no lump-sum alimony on facts not entirely dissimilar to those involved here. McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977). While $2,000 per month seems low based upon the financial data presented to the trial court in this case, it is not so grossly inadequate as to constitute an abuse of discretion. We again find that reasonable men could disagree as to its adequacy and therefore feel compelled to affirm under the test propounded in Canakaris v. Canakaris, supra.

Finding, as we now do, that appellant has failed to demonstrate reversible error in the foregoing or in any of the other points raised on appeal, we affirm the final judgment.

AFFIRMED.

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


author: McCORD, Judge. McCORD, Judge.

text:
    SYSTEMS MANAGEMENT ASSOCIATES, INC., Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. VV-318.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1980.
    Reconsideration Denied Jan. 16, 1981.

      Clinton H. Coulter, Jr., of Duvall & Coulter, Tallahassee, for appellant.
    George L. Waas, Asst. Gen. Counsel, Florida Dept, of Health and Rehabilitative Services, Tallahassee, for appellee.
   ON MOTION TO DISMISS OR QUASH APPEAL

McCORD, Judge.

By petition for rule determination pursuant to Section 120.56, Florida Statutes, Appellant asserted that there exist two rules within the meaning of Section 120.52(14), Florida Statutes, which have not been duly promulgated as rules pursuant to Section 120.53, Florida Statutes. The Division of Administrative Hearings’ (“DOAH”) hearing officer entered an order denying Appellant’s petition on March 27, 1980. On April 7,1980, Appellant filed a Motion for Reconsideration with the hearing officer. This motion was subsequently denied by order of the hearing officer on April 16, 1980. The notice of appeal was filed with this Court and with DOAH on May 16,1980. Appellee now moves to dismiss the appeal because of Appellant’s failure to file the appeal within thirty days of the hearing officer’s order of March 27, 1980.

Subsections (b) and (c) of Florida Rule of Appellate Procedure 9.110 provide that jurisdiction for review of administrative orders by this Court shall be invoked by filing the notice with either the Clerk of this Court or the clerk of the administrative agency within thirty days of rendition of the order to be reviewed. See, Frank Ede-len Buick Co. v. Calvin, 389 So.2d 649 (Fla. 1st DCA 1980). Florida Rule of Appellate Procedure 9.020(g) defines rendition of an order as:

. . . the filing of a signed, written order with the clerk of the lower tribunal. Where there has been filed in the lower tribunal an authorized and timely motion for new trial or rehearing, . . . the order shall not be deemed rendered until disposition thereof. (Emphasis supplied.)

Therefore, a motion for rehearing must be both timely and authorized in order to fall within the tolling provision of Rule 9.020(g). See, Wagner v. Bieiey, Wagner & Associates, Inc., 263 So.2d 1 (Fla.1972); “M” Enterprises, Inc. v. Baumgartner, 362 So.2d 282 (Fla. 1st DCA 1978); Gordon v. Barley, 383 So.2d 322 (Fla. 5th DCA 1980). There is no language in either Florida Statutes or the Model Rules of Procedure, Chapter 28, Florida Administrative Code, which authorizes a hearing officer to entertain a motion for reconsideration in a § 120.56 proceeding. Further, Florida Rule of Civil Procedure 1.530 has not been made applicable to APA hearings. Hence, such a motion would not toll the rendition date of the order pursuant to Rule 9.020(g).

Appellant relates that Chapter 28, Florida Administrative Code, Model Rules of Procedure, was rewritten, effective March 23,1980, and the proscription against rehearing or reconsideration which previously appeared in Florida Administrative Code Rule 28-5.25(9) was not readopted as part of the model rules as revised. The result of this deletion, appellant argues, is to authorize motions for rehearing of administrative orders. We do not so construe it. The omission does not create a rule authorizing a petition for rehearing. Even if we construed the omission as authorizing such a motion, we would then be confronted with the problem of timeliness. How long would a litigant have to file a petition for rehearing to an administrative order when no time limit is specified? If we adopted this view, every administrative order would remain open for an indeterminate period for the filing of a petition for rehearing. There would be no finality to any administrative order to which a petition for rehearing was not filed, of, at best, there would be an open question of timeliness of the filing of such a motion under many varying circumstances. The appellate court’s jurisdiction should not hinge upon such uncertainty. We are unable to construe the deletion from the model rules of Chapter 28, Florida Administrative Code as enactment of an authorization for the filing of a motion for rehearing which provides no time limit for the filing thereof. We find that the more logical intent of the deletion was to eliminate surplusage or unnecessary language. It should not be necessary to tell a litigant that he cannot toll the finality of an order by filing a motion for rehearing. Unless a rule affirmatively grants the right, he should know that it does not exist. Further, the use of the word “authorized” in Rule 9.020(g) implies that some affirmative language contained in a rule, and not mere silence, is required before such a motion will affect the rendition of an order to which it is addressed. Therefore, since appellant failed to file its notice of appeal within thirty days of the rendition of the order of the hearing officer (March 27, 1980), we do not have jurisdiction of the appeal, and it must be dismissed as untimely-

In so ruling, we have not overlooked this Court’s holding in Florida Department of Offender Rehabilitation v. Dunlap, 344 So.2d 608 (Fla. 1st DCA 1977), which might appear to dictate a contrary result. That case, however, found an order was not final “for the purpose of review since there was a motion for rehearing pending before the Commission prior to the entry of such order.” In Dunlap, the procedural circumstances were therefore unique and distinguishable from those now presented. In addition, we are presently governed by the 1977 Rules of Appellate Procedure, which were adopted by the Supreme Court to be effective on March 1, 1978. The counterpart to Rule 9.020(g) defining “rendition” was old Rule 1.3. The old rule had no express applicability to orders of administrative agencies but governed only court-orders. The new rule specifically applies to both and, as previously stated, requires that the motion for new trial or rehearing, etc., be both authorized and timely for rendition to occur at the time of disposition of such motion.

The motion to dismiss or quash appeal is granted, and the appeal is dismissed.

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

ORDER ON MOTION FOR RECONSIDERATION

McCORD, Judge.

Appellant contends that this Court, in its original order on the motion to dismiss or quash appeal, overlooked or misapprehended the provisions of § 120.56(5) and § 120.57(l)(b)4. Section 120.56(5) provides:

Hearings held under this provision shall be conducted in the same manner as provided in 120.57 except that the hearing officer’s order shall be final agency action. (Emphasis supplied.)

Section 120.57(l)(b)4 provides that:

All parties shall have an opportunity to respond, to present evidence ... to file exceptions to any order or hearing officer’s recommended order, .

Appellant asserts that, when read together, those statutory provisions provide the necessary authorization for the filing of a motion for rehearing after the rendition of a § 120.56 order. We disagree.

Section 120.57 orders are not final agency action but are recommended orders [§ 120.-57(l)(b)8] or interlocutory orders to which, according to § 120.57(l)(b)4, exceptions may be filed. Although § 120.56(5) does provide that § 120.56 hearings shall be conducted in the same manner as provided in § 120.57, it also provides that a hearing officer’s § 120.-56, order is “final agency action.” Pinal agency action is reviewable only by appeal. Section 120.68(1) provides:

“A party who is adversely affected by final agency action is entitled to judicial review . . .

Section 120.68(2) provides that such review may be instituted by filing a petition in the appropriate district court of appeal or in the Supreme Court, when provided by law.

In the original order on the motion to dismiss, we discussed our reasons for declining to construe the omission of Florida Administrative Code Rule 28-5.25(9) (which proscribed rehearing or reconsideration of agency orders) from the revised model rules as authorizing a motion for rehearing. That discussion was not intended to indicate and should not be contrued as indicating that an agency could adopt a rule providing for the filing of a motion for rehearing as to final agency action.

Appellant’s motion for reconsideration is denied.

Larry G. SMITH, and WENTWORTH, JJ., concur.


text:
    Betty June MELVIN, Appellant, v. Billy James MELVIN, Appellee.
    No. PP-40.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1980.
    As Corrected on Denial of Rehearing Dec. 31, 1980.

      Bill A. Corbin, Blountstown, for appellant.
    Charles M. Wynn, Marianna, for appellee.
   LILES, WOODIE A., Associate Judge (Retired).

Betty June Melvin filed a motion for contempt against her ex-husband, Billy James Melvin, seeking to enforce the provisions of a final decree of divorce and stipulation obtained on June 3, 1966. Her petition did not allege a specific sum of child support in arrears. However, the evidence at the hearing supported the lack of support payments from March 10, 1967, to the date of the hearing in an amount in excess of $9,000.00.

At the conclusion of the hearing, the trial judge found that the ex-husband and father was in contempt of court and accepted the affirmative defense of the statute of limitations so that only five years delinquency was required to be paid; and he ordered that it be paid at the rate of $100.00 per month, without interest. He allowed the mother’s attorney $1,500.00 and ordered the ex-husband to pay court costs. This appeal ensued, and the mother assigns five points upon which she requests that the trial judge be reversed.

The most obvious error and the point upon which we reverse concerns the application of the statute of limitations. This Court recently held in Armour v. Allen, 377 So.2d 798 (Fla.1st DCA 1979), that the enforcement of support judgments is equitable in nature and is not barred by the statute of limitations. In that case, the Court quoted from Ciociola v. Ciociola, 302 So.2d 462, 464 (Fla.3d DCA 1976), and State ex rel. Aviston v. Bollinger, 88 Fla. 123, 101 So.2d 282, 283 (1924), as follows:

“The father owes a duty to nurture, support, educate and protect his child, and the child has the right to call on him for the discharge of this duty. These obligations and rights are imposed and conferred by the laws of nature; and public policy, for the good of society, will not permit or allow the father to irrevocably divest himself of or to abandon them at his mere will or pleasure.”

Appellee attempts to convince this Court that the stipulation entered into between the parties should be treated as a contract and come within the purview of Isaac v. Deutsch, 80 So.2d 657 (Fla.1955), and apply the statute of limitations as though this were a contract between the parties. We disagree with that theory without disagreeing with the conclusions reached in Deutsch. Here, we did have a stipulation as to the amount to be paid by the father as child support, which amount was incorporated in the final decree. However, be that as it may, the cases are legion that a parent may not contract away the right of a child to receive support from his father and, as was said in the Armour case, “we further hold that the four-year limitations period of Florida Statute § 95.11(3)(p) does not apply to claims for child support.”

Apr-'llant seeks reversal of the trial judge’s failure to award interest on the amount of the arrearage. We are compelled to reverse. Interest should be allowed on the arrearage judgment from the date of the last support payment to the date of the arrearage judgment to be'entered upon remand. It should be noted that compounded interest is prohibited. See, Coggan v. Coggan, 183 So.2d 839 (Fla.2nd DCA 1966).

Appellant sought also to have support payments increased based on increased needs of the child and improved financial conditions of the father. After hearing the testimony, the trial judge awarded her a $10.00 per week increase, bringing the total support to $25.00 per week. Based upon the evidence at the hearing, the father’s financial position has improved greatly since the entry of the final decree in 1966. The child is now a teenage daughter whose needs have increased; and, while there is no formula for exact percentages or dollar amounts, we believe the trial judge abused his discretion in only granting a $10.00 per week increase. It may well be that upon rehearing the record will support an increase of this small amount. However, this record does not, in our opinion, do so. See, Hendry v. Hendry, 340 So.2d 942 (Fla.4th DCA 1976); Banks v. Graham, 252 So.2d 864 (Fla.3d DCA 1971); and Nixon v. Nixon, 200 So.2d 263 (Fla.3d DCA 1967).

The other points relied upon by Appellant regarding the beginning date of the increased child support and the award of attorney fees are without merit. The trial judge has the authority to defer effective dates of payment, and the fact that he did not require the increased payments to begin until July 13,1979, is not an abuse of discretion.

The awarding of the attorney fees of $1,500.00 was likewise within the discretion of the court, and we believe the trial judge was more than generous to petitioner’s attorney.

For the foregoing reasons, the trial court’s holding regarding arrearages and the interest on the arrearages is reversed. The increased support is reversed and remanded with directions, and the remainder of the trial court’s order is affirmed.

REVERSED IN PART; AFFIRMED IN PART; and REMANDED for proceedings not inconsistent with this opinion.

BOOTH and SHAW, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    TOWN OF ORANGE PARK, Florida, Appellant, v. STATE of Florida PUBLIC EMPLOYEES RELATIONS COMMISSION, and Orange Park Association of Fire Fighters, International Association of Fire Fighters, AFL-CIO-CLC, Local 2668, Appellees.
    No. TT-380.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1980.
    Rehearing Denied, Dec. 30, 1980.
    John F. Dickinson of Jones, Corbin & Dickinson, Jacksonville, for appellant.
    Thomas J. Dorsey of Dorsey & Morris, St. Augustine, for Orange Park Association of Fire Fighters.
    Thomas W. Brooks, General Counsel, Tallahassee, for Public Employees Relations Commission.
   PER CURIAM.

AFFIRMED.

ROBERT P. SMITH, Jr. and SHAW, JJ., concur; BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

The order of PERC finding two captains and the captain/assistant fire chief are not managerial employees under Florida Statutes § 447.203(4) is contrary to the facts, inter alia, that the captains make recommendations on hiring, firing, promotions and discipline, handle grievance matters, have authority to authorize leaves of absence, attend monthly managerial staff meetings and are under the town’s administrative pay plan (as is the chief), whereas all other firefighters come under the town’s regular merit pay plan.

The admitted facts here are that the town’s recent reorganization of its sixteen-man fire department was for the purpose of decentralizing the authority of the fire chief. In this way, the town sought to avoid problems, such as arose under a former fire chief convicted of converting public funds, caused by one person having all the managerial responsibility. The order of PERC refusing to recognize the managerial status of these positions effectively nullifies the town’s reorganization.

I respectfully dissent.


text:
    Richard RAWLS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1042.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 1980.
    Rehearing Denied Dec. 24, 1980.
    Richard Rawls, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from a summary denial of a Rule 3.850, Florida Rules of Criminal Procedure, motion for post-conviction relief. Contrary to the requirements of Rule 3.850, the motion did not state whether there was an appeal from the judgment or sentence and the disposition thereof, nor did the motion state whether a previous post-conviction motion had been filed and, if so, how many, nor was the motion under oath. The order appealed is affirmed without prejudice to defendant’s filing a sufficient motion providing the required information under oath raising the same substantive issues. Saxon v. State, 384 So.2d 35 (Fla. 5th DCA 1980); Monroe v. State, 371 So.2d 683 (Fla.2d DCA 1979).

AFFIRMED.

ORFINGER, COBB and COWART, JJ., concur.

      . Rule 9.140(g), Fla.R.App.P.

      . The rules provide a complete fill-in-the-blanks form to assist prisoners in preparing 3.850 motions.


author: PER CURIAM. SHIVERS, Judge,

text:
    L. T. S., a child, Appellant, v. STATE of Florida, Appellee.
    No. PP-248.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1980.
    Rehearing Denied Jan. 16, 1981.
    Louis 0. Frost, Jr., Public Defender, Fourth Judicial Circuit, James L. Harrison, Jr., Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., A. S. Johnston and Miguel A. Olivella, Jr., Asst. Attys. Gen., for appellee.
   PER CURIAM.

This is an appeal from an adjudication of delinquency for the delinquent act of carrying a concealed weapon, to wit: brass knuckles, following appellant’s plea of nolo contendere which specifically reserved for appeal the right to challenge the correctness of the trial court’s denial of appellant’s motion to suppress. Appellant urges that the stop of his vehicle was improper because the police did not have a well-founded or reasonable suspicion that he “had committed a violation of the criminal laws of this state” sufficient to justify a stop under Section 901.151(2), Florida Statutes (1979), Florida’s Stop and Frisk Law, and that accordingly, the subsequent frisk of his person was illegal. We agree and reverse.

The facts are undisputed, being based solely upon the deposition testimony of the arresting officer; Officer Wilmoth of the Jacksonville Sheriff’s Office. Around midnight May 28, 1979, Wilmoth received a BOLO (be on the lookout report) advising him that a robbery had just occurred at a liquor store on U.S. 1 and Wagner Road and that he should look for at least two white males with curly hair. Within one to two minutes of the BOLO and at a point within three-quarters to one mile from the scene of the robbery, Wilmoth observed an automobile traveling on Wagner Road in a direction away from the liquor store which had three to four occupants, two to three of them silhouetting “fairly bushy” hair. Wil-moth stopped the vehicle, and upon the arrival of back-up units, frisked the occupants of the vehicle, three white males and one white female. Wilmoth indicated that the occupants closely matched the description given over the BOLO. Subsequent investigation revealed that these individuals had not committed the robbery, so all except appellant were released.

The dispositive issue is whether there was an objective, articulable basis for Wilmoth to believe that the occupants of the vehicle which he stopped might have been involved in the robbery. We find there was not. The description of the suspects given over the BOLO was lacking in specificity. As noted in State v. Hetland, 366 So.2d 831, 839 (Fla. 2d DCA 1979), “a vague description simply would not justify a law enforcement officer in stopping every individual who, or every vehicle which, might possibly meet that description.” There was no indication that Wagner Road was a fairly untravelled road at this hour or that it was one of the few routes available for flight from the scene of the robbery. Under the circumstances presented here we do not believe Wilmoth had a founded suspicion based upon objective articulable facts to properly justify his stop of appellant’s vehicle. Compare, State v. Gamble, 370 So.2d 428 (Fla. 3d DCA 1979); Franklin v. State, 374 So.2d 1151 (Fla. 3d DCA 1979); and Byrd v. State, 380 So.2d 457 (Fla. 1st DCA 1980).

Accordingly, we conclude that the trial court erred in denying appellant’s motion to suppress. The adjudication of delinquency is reversed and the cause is remanded to the trial court with directions that appellant be discharged.

ERVIN and LARRY G. SMITH, JJ., concur.

SHIVERS, J., dissents with opinion.

SHIVERS, Judge,

dissenting;

Under the facts and circumstances of this case, the trial court was justified in denying the motion to suppress. The officer received a BOLO that a robbery had just occurred less than one mile away and that he should look for at least two white males with curly hair. The officer was proceeding to the scene of the crime when a motor vehicle containing several persons, at least two of them being white males with “bushy” hair, passed the officer going in the opposite direction or away from the scene of the robbery. The articulable facts, as found to be true in the court’s order denying the motion to suppress, are sufficient facts upon which the trial judge properly concluded that a founded suspicion reasonably existed upon which the officer originally detained the vehicle and its occupants.

As Judge Kehoe wrote in State v. Gamble, 370 So.2d 428 (Fla. 3d. DCA 1979):

Our courts have consistently held that the police may temporarily stop an automobile on less than probable cause where there is an articulable suspicion that a criminal offense has been, is being, or is about to be committed.

The trial court properly held that the officer was justified, under the facts and circumstances, in stopping appellant. This officer, responding to the BOLO, would have been less than diligent if he had failed to at least temporarily detain the car in which appellant was traveling. The trial court did not err in finding that the officer, having stopped the vehicle, was justified under the circumstances in searching appellant.

In Phillips v. State, 360 So.2d 1310 (Fla. 1st DCA 1978), cert. denied 368 So.2d 1372 (Fla.1979), we held that the totality of the circumstances must be examined in each case to determine whether the officer’s belief that a person is armed with a dangerous weapon is a reasonable one rather than based on some “inchoate and unparticular-ized suspicion or hunch.” In the case here under consideration, the officers were outnumbered four to two. The nature of the suspected offense (robbery) bolstered the reasonableness of the officer’s belief that the appellant was armed and dangerous. Under the circumstances it could have been foolish and fatal bravado for the officer not to have searched the appellant by the pat-down.

The denial of the appellant’s motion to suppress was proper on the facts here. See State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978); Wilson v. State, 324 So.2d 700 (Fla. 4th DCA 1976).

I would affirm.


author: DANIEL S. PEARSON, Judge.

text:
    T.I.E. COMMUNICATIONS, INC., Appellant, v. TOYOTA MOTORS CENTER, INC., a Florida Corporation a/k/a Expressway Toyota, Appellee.
    No. 80-456.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.
    Rehearing Denied Jan. 16, 1981.

      Walters, Costanzo, Miller, Russell & Ditt-mar, Miami, for appellant.
    Amy Shield Levine, George & Thompson, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

We affirm the trial court’s denial of the motion to vacate a default filed by T.I.E. Communications, Inc. and the final judgment in favor of Toyota Motors Center, Inc. upon a holding that the trial court was indisputably correct in refusing to vacate the default, where (a) default was entered more than a year after T.I.E. was served with the complaint; (b) Toyota’s motion for default was filed only after written advice to T.I.E. that it intended to move for default unless T.I.E. responded to the complaint, which T.I.E. obdurately chose not to do ; (c) T.I.E.'s ore tenus motion to vacate the default was made on the date the trial was scheduled to commence, 140 days after the default was entered against it; and (d) T.I.E.’s motion, in the form of a statement by its trial counsel, even viewed most favorably to it, was no more than an admission of total disregard of the lawsuit on the part of T.I.E.’s house counsel.

It is quite obvious that T.I.E. did not show excusable neglect and was not entitled to have the default set aside. The Cricket Club, Inc. v. Basso, 384 So.2d 908 (Fla. 3d DCA 1980); B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 5th DCA 1980); Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978). Moreover, an ore tenus motion made at trial is insufficient to vacate a default, Dade County v. Lambert, 334 So.2d 844 (Fla. 3d DCA 1976), and unsupported and undocumented representations of counsel regarding the failure of his client to respond are insufficient to justify setting aside the default. Williams v. Stack, 366 So.2d 872 (Fla. 4th DCA 1979).

Ordinarily, we would conclude our opinion here. We go on, however, to consider Toyota’s request for an award of attorneys’ fees on this appeal under Section 57.105, Florida Statutes (1979). That section provides:

“The court shall award a reasonable attorney’s fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.”

It has been held that a “complete absence of a justiciable issue” is the equivalent of frivolousness. Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). We agree with Allen that the statute should be so construed, since we are concerned that any less stringent predicate for the recovery of attorneys’ fees would have a chilling effect on parties who, for example, may unsuccessfully attempt to raise questions of first impression and may deter the future growth of the law by exacting a price for today’s unavailing efforts seeking its change. Having sounded this caveat to prevailing parties in general, we turn to the case at hand.

The appeal taken by T.I.E. has no saving grace. T.I.E.’s brief tells us, in essence, that it is the policy of Florida courts to exercise liberality in vacating defaults and to favor decisions on the merits, that a predicate for a motion to set aside a default is excusable neglect, and that its neglect falls within the framework of Florida’s de-cisional law. In our view, T.I.E.’s position on appeal is that every default should be vacated merely upon application, no matter how derelict the defendant, no matter when the application is made, and no matter what the form of the motion. This is clearly frivolous.

“A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed, [citation omitted]. It must be one so clearly untenable, or the insufficiency of which is so manifest on a bare inspection of the record and assignments of error, that its character may be determined without argument or research. An appeal is not frivolous where a substantial justiciable question can be spelled out of it, or from any part of it, even though such question is unlikely to be decided other than as the lower court decided it, i. e., against appellant or plaintiff in error.” Treat v. State ex rel. Mitton, 121 Fla. 509, 163 So. 883 (1935).

Accordingly, we grant Toyota’s motion for attorneys’ fees and order that T.I.E. pay to Toyota an attorney’s fee in the amount of $2,500.

The judgment in favor of Toyota is

Affirmed.

      . Even at the time it moved to vacate the default, T.I.E. did not attempt to file a written answer to the complaint.

      . Our holding makes it unnecessary to consider whether T.I.E. had meritorious defenses to the action.

      .Although the statute does not specifically authorize attorneys’ fees on appeal, Section 59.46, Florida Statutes (1979), when read in conjunction with Section 57.105, authorizes such fees. See also Department of Revenue v. Gurtler, 381 So.2d 242 (Fla. 4th DCA 1979).

      . It is interesting to note that T.I.E.’s sole point on appeal concerns the trial court’s failure to set aside the default. T.I.E. participated in the jury trial on damages and makes no complaint about the conduct of that trial.


author: ROBERT P. SMITH, Jr., Judge.

text:
    GRUMMAN ECOSYSTEMS CORP., Appellant, v. PALM BEACH COUNTY, Florida Board of County Commissioners, etc., Appellees.
    No. VV-138.
    District Court of Appeal of Florida, First District.
    Dec. 4, 1980.
    Rehearing Denied Jan. 16, 1981.

      Denis L. Durkin and Harold F. Morían, II, of Baker & Hostetler, Orlando, for appellant.
    Philip C. Owen of Fischette, Parrish, Owen & Held, Jacksonville, for appellees.
   ROBERT P. SMITH, Jr., Judge.

Grumman appeals from a final summary judgment sustaining Griffin’s claim for rentals due for equipment rented by Grumman for a construction project. The summary judgment is predicated on the court’s finding that the parties’ agreement was expressed in Griffin’s written proposal and in a separate “uniform rental agreement” referred to in that proposal. The trial court held that Grumman’s failure to return or complain of defective equipment, according to restrictions stated in the uniform rental agreement, foreclosed Grumman’s counterclaims and affirmative defenses asserting that the equipment was defective, causing Grumman delays and other losses. On examination of the summary judgment record we find that there is a factual dispute of whether the Griffin proposal and the referred-to uniform rental agreement formed the basis for the parties’ contract. On those issues, then, the summary judgment must be reversed.

We find no error in the court’s dismissal of Grumman’s counterclaims and striking of its affirmative defenses asserting, not alternatively but as a self-contradiction, that the parties’ agreement was as stated in Grumman’s purchase order except for ancillary oral agreements, allegedly unfulfilled by Griffin, which the express terms of Grumman’s purchase order negated. Nor did the court abuse its discretion in denying Grumman further leave to amend the following several unsuccessful attempts to plead those defenses and counterclaims. The trial court properly eliminated counterclaims III and IV and their counterparts among the affirmative defenses. On the other issues the summary judgment is

REVERSED.

THOMPSON, J., and WOODIE A. LILES (Retired), Associate Judge, concur.


author: ERVIN, Judge. WENTWORTH, Judge,

text:
    David B. WOODWARD, Jr., Appellant, v. DUVAL MOTOR COMPANY, Liberty Mutual Insurance Company, City of Jacksonville, Florida and Travelers Insurance Company, Appellees.
    No. PP-193.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1980.
    Rehearing Denied Jan. 16, 1981.

      Allan P. Clark, of Caven & Clark, Jacksonville, for appellant.
    Walter L. Robison, of Zisser, Robison & Spohrer, Jacksonville, for appellees.
   ERVIN, Judge.

In this personal injury action, Woodward appeals a judgment entered following a jury verdict absolving appellees from any liability. Woodward argues, among other things, that the trial court erred in excluding the results of a field sobriety test made at the scene of an automobile accident. Finding that those results are not protected by the statutory provisions of Section 316.-066(4), Florida Statutes (1977), we reverse in part and remand.

While walking across the street, Woodward was struck by an automobile and injured. Shortly after the accident, a sheriff’s officer administered a field sobriety test to the driver who, unable to keep his balance or touch his nose, failed the test. At trial, the court held that since the test’s results were obtained prior to an arrest, they were privileged information because part of an accident investigation, and therefore inadmissible.

Those provisions of Section 316.066(4), making confidential accident reports “by persons involved in accidents,” were enacted by Chapter 20578, § 17, Laws of Fla. (1941). As first interpreted, the statute was generally applied to exclude statements made by motorists or other persons involved in accidents that comprised part of the report such persons were required by law to give. Stevens v. Duke, 42 So.2d 361 (Fla.1949); Herbert v. Garner, 78 So.2d 727 (Fla.1955); Nash Miami Motors, Inc. v. Ellsworth, 129 So.2d 704 (Fla. 3d DCA 1961). Later, the statute was construed as excluding nontestimonial evidence (an analysis for blood alcohol content) because the test formed a portion of the officer’s accident report. Cooper v. State, 183 So.2d 269 (Fla. 1st DCA 1966). The Cooper rule was approved by the Florida Supreme Court in State v. Coffey, 212 So.2d 632 (Fla.1968), the court observing that since the officer in Cooper caused the blood sample to be withdrawn for the purpose of completing his accident report, doubt was cast upon the “capacity of the defendant to understand that she was not required to take the blood test.” 212 So.2d at 634. Coffey, however, in the case before it, upheld the admissibility of the blood test which was obtained with the defendant’s consent.

State v. Coffey permitted the admission of blood test results as evidence if three conditions were met: (1) the motorist consents to the test, (2) there is probable cause to believe a crime was committed in the operation of a motor vehicle, and (3) the accident report was completed before the test is given. The Coffey rule was modified by the Florida Supreme Court’s last construction given the statute in State v. Mitchell, 245 So.2d 618 (Fla.1971), holding it immaterial whether a defendant gives consent to the withdrawal of blood because a blood sample is not a self-incriminating, testimonial communication which is barred by the Fifth Amendment, citing Schmerber v. California, 384 U.S. 757, 763, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Neither is it necessary to place a defendant under arrest at the time the sample is taken so long as there is a “ ‘clear indication’ of ‘relevance and likely success of a test of the [defendant’s] blood for alcohol’ ” as well as a compliance with the requirements of Section 322.261, Florida Statutes. 245 So.2d at 622. Finally, the accident report need not be filed or completed prior to the time the blood test is administered. However, Section 316.066 may still bar the use of blood alcohol analyses as evidence if “the information sought to be excluded was taken by the investigating officer for the purpose of making his accident report and formed a basis for that report.” Id. at 623.

Whatever construction was placed upon Section 316.066 by the courts as to tests for alcohol, the statute has never been interpreted as either sanctioning or disapproving field sobriety tests. Both State v. Coffey and State v. Mitchell have held that the statute applies only to “statements” the driver is compelled to make in order to comply with his statutory duty, and that the statute, being in derogation of common law, must be strictly construed “ ‘in the sense that no situation should be held within its operation to which the legislature did not clearly intend to accord the privilege.’ ” State v. Coffey, supra at 635; Wise v. Western Union Telegraph Co., 177 So.2d 765 (Fla. 1st DCA 1965). Given that construction, we do not consider it was within the rational contemplation of the legislature that the results of a field sobriety test, involving as they do an officer’s observations of an inebriate’s compelled responses to such orders that he touch his nose, walk a straight line, or perform other feats of agility, be clothed with the protective mantle of statutory immunity, notwithstanding that those observations may later be reduced to writing and become part of the accident report.

The only nontestimonial communication ever held barred by the statute’s provisions from introduction into evidence was a chemical test for blood alcohol content. See Cooper v. State, supra. Certainly there existed compelling public policy reasons for barring such tests for use against the inebriate at trial unless he gave his consent, even in the absence of any Fifth Amendment inhibition making them inadmissible. The preclusion of blood alcohol analyses as evidence has historical antecedents, a fact noted in Coffey by its quote from Touchton v. State, 154 Fla. 547, 18 So.2d 752, 753 (1944):

‘Evidence resulting from a medical examination of accused for the purposes of the prosecution rather than for treatment, after an accusation has been made against him, is admissible where, in the absence of any compulsion, accused submits or consents to the examination.’ ” (e. s.)

Or, as stated in Wragg v. Griffin, 185 Iowa 243, 252, 170 N.W. 400, 2 ALR 1327, 1333 (1919): “Even when charged with the gravest of crimes, [a defendant] cannot be compelled to give evidence against himself, nor can the state compel him to submit to a medical or surgical examination, the result of which may tend to convict him of a public offense. . .” See also State v. Height, 117 Iowa 650, 91 N.W. 935, 59 L.R.A. 437 (1902); State v. Newcomb, 220 Mo. 54, 119 S.W. 405 (1909). The same repugnance does not attend the results of a field physical sobriety test, which obviously are not obtained-as is a blood sample-by extracting a defendant’s body fluids for the purpose of prosecuting him.

Since we are required to place a strict interpretation upon the statute, we decline to extend Section 316.066(4)’s protective immunity to any nontestimonial communication other than a chemical test for alcohol, which, as we have previously observed, fn. 1, is now governed by the procedure provided in Section 322.261. We therefore conclude that the statute does not bar the results of a physical coordination test into evidence even though they may have been the product of coercion and used by the officer as an aid in completing his accident report.

The only remaining obstacle to the reception of such evidence is the unreasonable search and seizur clause of the Fourth Amendment. A seizure of a person’s body is a “serious intrusion upon the sanctity of the person . . . . ” Terry v. Ohio, 392 U.S. 1, 17, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and the detaining officer’s conduct will be tested “by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” 392 U.S. at 20, 88 S.Ct. at 1879. For example, detentions for the sole purpose of obtaining fingerprints are subject to the constraints of the Fourth Amendment. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). Thus, before one may stop a motorist and require him to submit to a physical sobriety test, there must be, as stated in State v. Mitchell, “ ‘a clear indication’ of ‘relevance and and likely success of a test . . . for alcohol.’ ” Here the requirements of the Fourth Amendment were fully complied with because, before conducting the test, the officer smelled alcohol on the motorist, noticed his gait was unsteady, and his speech slurred. Consequently, the officer had before him a clear indication of the relevance for the test and proceeded reasonably in seeking it.

We have considered Woodward’s remaining points and find them unavailing.

AFFIRMED in part, REVERSED in part, and remanded for new trial.

ROBERT P, SMITH, Jr., J., concurs.

WENTWORTH, J., dissents with opinion.

WENTWORTH, Judge,

dissenting.

I respectfully disagree with the conclusion of the majority and would affirm the trial judge’s ruling that the field sobriety test results may not be admitted into evidence in this case.

Section 316.066(4), Florida Statutes, provides:

All accident reports made by persons involved in accidents shall be without prejudice to the individual so reporting .... No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident. . . .

This statutory exclusion has been held applicable to the results of physical tests. See Cooper v. State, 183 So.2d 269 (Fla. 1st DCA 1966); and State v. Coffey, 212 So.2d 632 (Fla.1968). The relevant inquiry is whether the information sought to be excluded was obtained for the purpose of making an accident report. State v. Mitchell, 245 So.2d 618 (Fla.1971).

The present case does not involve “non-elicited” observations; instead, the information sought to be excluded was the result of required responses pursuant to a field sobriety test which the trial judge correctly found was conducted by the officer for the purpose of making an accident report. Section 316.066(4), Florida Statutes, therefore in my opinion precludes the use of such evidence at this civil trial arising out of the accident. Mitchell and Cooper, supra. I would affirm.

      .The provisions of Section 316.066(4), insofar as they have been construed as permitting the admissibility of chemical tests for intoxication, notwithstanding the absence of consent, have apparently been superseded by those provisions of Section 322.261, first enacted by Section 1, Ch. 67-308, Laws of Florida, effective July 1, 1968. That statute has been interpreted as barring the results of chemical tests as evidence unless the motorist first gives his consent to submit to the tests. State v. Riggins, 348 So.2d 1209 (Fla. 4th DCA 1977); Lytwyn v. State, 353 So.2d 222 (Fla. 1st DCA 1977); McDonald v. State, 364 So.2d 1241 (Fla. 2d DCA 1978); Smith v. State, 378 So.2d 281 (Fla.1979); Sambrine v. State, 386 So.2d 546 (Fla.1980). And, if the driver refuses consent, he must suffer the sanction of having his license suspended for the statutory period. Sambrine v. State, supra.

      . State v. Liefert, 247 So.2d 18 (Fla. 2d DCA 1971), without discussing the statute, held admissible such results even in the absence of any determination whether they were for the declared purpose of completing an accident report, as required by the statute.

      . Precisely what Coffey and Mitchell meant by “statements” is unclear. At first blush one might conclude the statute only precludes testimonial communications as evidence. See Mitchell at 620-21. Yet Mitchell goes farther, holding that the statute shields blood samples from use as evidence if they are taken for the purpose of making an accident report and form the basis for that report. Id. at 623. For the reasons stated infra, we interpret the statute as not applying to any nontestimonial communication other than a test for blood alcohol content.

      . An important caveat to the above statement is that the force used must not be so excessive as to violate fundamental principles of due process, i. e. the “conduct [must not be] that [which] shocks the conscience.” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). Compare the facts in Rochin (forced removal of evidence from a defendant’s body by a stomach pump) with those in Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957) (blood sample taken from an unconscious person “under the protective eye of a physician” did not offend the 14th Amendment).


author: NESBITT, Judge.

text:
    Luce GRENIER, Appellant, v. The CENTRAL BANK AND TRUST COMPANY, as Trustee of the La France Apartments and Farmer Reliance Insurance Company of New Jersey, Appellees.
    No. 80-469.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1980.
    Rehearing Denied Jan. 9, 1981.
    Schwartz, Klein & Steinhardt and Norman S. Klein and Jay S. Weiss, Miami, for appellant. \
    Lee, Schulte, Murphy & Coe and Jack M. Coe, Jupiter, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

This appeal is from a summary judgment entered against the plaintiff, Luce Grenier, in an action for damages arising out of a slip-and-fall. We reverse.

We are presented with the question of whether there is a triable issue of fact in a situation where the knowledge of a danger possessed by a tenant-invitee is equal or superior to that of a landlord.

The appellant, a tenant, had lived in the appellee-landlord’s apartment for some two years. There was an underground parking area beneath the structure. The tenant had parked her automobile in the area several times a week during her two-year tenancy. She was aware that puddles accumulated in the garage area after the rain. So was the landlord. The landlord’s custodian customarily placed boardwalks over the area after it rained so that the tenants did not have to walk through the puddles. On deposition, the tenant admitted have general knowledge of the area and admitted she was specifically aware of a puddle of water which she sought to step over on the day in question. That was, however, also the day that the custodian had not placed boardwalks for the convenience of tenants. The tenant stated that the area was dimly lit so that she did not observe a peripheral area containing a mixture of oil and water somewhere beyond the puddle which she tried to step over. She disavowed seeing and noticing the oil until after her fall when she observed it on her slacks. The tenant was injured in her fall and brought suit against the landlord. The landlord filed a motion for summary judgment which was granted and plaintiff brings this appeal.

The First District Court of Appeal adheres to the view that superior knowledge of a danger by a business invitee excludes the duty of the landowner to take precautions in respect to the invitee. Ball v. Ates, 369 So.2d 1023 (Fla.1st DCA 1979); Vermont Mutual Insurance Company v. Conway, 358 So.2d 123 (Fla.1st DCA 1978). On more complex facts, the Fifth District Court of Appeal, in Pittman v. Volusia County, 380 So.2d 1192 (Fla.5th DCA 1980), held that superior knowledge alone did not prevent the question from being an issuable matter of fact for a jury. In Zambito v. Southland Recreation Enterprises, Inc., 383 So.2d 989 (Fla.2d DCA 1980), the Second District Court of Appeal emphatically held that, because of the doctrine of comparative negligence, the superior knowledge of an invitee or tenant is always a question of fact to be weighed against a landowner’s duty to warn.

In the instant case, we have the unqualified view that, despite the plaintiff’s general superior knowledge of the area, she did not have a particularized knowledge of the oil because she could not see it, apparently due to poor illumination. Consequently, it was not conclusively shown that she Had superior knowledge about the totality of the problem that precipitated her fall and resulting injury. Nor may the landlord proclaim that it had totally discharged its duty because there was apparently a failure on the part of the landlord to maintain the premises as evidenced by the poor illumination and the failure to place boardwalks on the day of the accident.

There is no question that the landlord had actual or constructive notice of the existence of the moisture on the floor or that the area was insufficiently lighted. Consequently, there was a factual issue as to whether the defendant had negligently maintained its premises. 194th Street Hotel Corporation v. Hopf, 383 So.2d 739 (Fla.3d DCA 1980); Fountainhead Motel, Inc. v. Massey, 336 So.2d 397 (Fla.3d DCA 1976), cert. denied, 344 So.2d 324 (Fla.1977); Fletcher v. Petman Enterprises, Inc., 324 So.2d 135 (Fla.3d DCA 1975). There is also a question of whether or not the plaintiff had knowledge of the oily condition because of her alleged inability to observe the area due to poor illumination. Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla.3d DCA 1980).

For the foregoing reasons, we find that the summary judgment in favor of the defendant was prematurely entered. Reversed and remanded for further proceedings.


text:
    Jesse P. GADDIS, Appellant, v. William P. McCOMAS, Appellee.
    No. 79-2049.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1980.
    Rehearing Denied Jan. 14, 1981.
    W. E. Blyler and Steven A. Hirsch of Patterson, Maloney, Blyler & Feige, Fort Lauderdale, for appellant.
    Edward A. Perse of Horton, Perse & Ginsberg, and Rubin & Rubinchik, P. A., Miami, for appellee.
   PER CURIAM.

This is an appeal from a final judgment requiring the appellant to return the deposit and consideration paid by the appellee for an option to purchase certain real property owned by the appellant. The basis of ap-pellee’s claim was that the appellant had fraudulently withheld material information about the property prior to execution of the option agreement and a renewal thereof. Upon review of the record we are of the view that the appellee simply failed to prove a cause of action of misrepresentation against the appellant. Unlike the recent case of Besett v. Basnett, 389 So.2d 995 (Fla.1980), the record here reflects no evidence of any fraudulent misrepresentations made by the appellant to the appellee.

Accordingly, the judgment of the trial court is reversed and remanded with directions that judgment be entered in favor of appellant.

ANSTEAD, BERANEK and HERSEY, JJ., concur.