author: DAUKSCH, Judge.

text:
    Robert Thomas AVERA, Appellant, v. STATE of Florida, Appellee.
    No. 81-1428.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   ON PETITION FOR WRIT OF HABEAS CORPUS

DAUKSCH, Judge.

This is another petition for writ of habeas corpus for delayed appellate review. An assistant public defender has again failed to follow the Rules of Criminal Procedure by failing to file a timely motion for new trial and failing to file a timely notice of appeal.

The assistant attorney general assigned to this case strongly objects with good reason to our, in effect, waiving the jurisdictional requirements regarding cases such as these and maintains that the thirty-day requirement for the filing of a notice of appeal is merely a “suggestion that defendant’s counsel file his notice within thirty days.” In all cases except those where counsel is appointed to represent criminal defendants, the thirty day time limit is jurisdictional and cannot be extended by the court. This exception is now being extended to include criminal defendants represented by privately retained counsel who fail to file a timely notice of appeal on the grounds that such failure indicates ineffective assistance of counsel. The reasoning is that only the lawyer is to blame and the defendant should not suffer just because he retained an incompetent lawyer. See Ford v. Wainwright, 415 So.2d 76 (Fla. 1st DCA 1982).

Baggett v. Wainwright, 229 So.2d 239 (Fla.1969), Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967) and a multitude of other cases establish and maintain the rule that if a criminal defendant is denied the right to appeal because of ineffective assistance of counsel then the appellate court should grant a petition for writ of habeas corpus for belated appellate review. We shall follow the rule and thus grant the petition for writ of habeas corpus in this case and permit petitioner to carry forth his appeal.

On March 3, 1982, this court sent a letter to each public defender in this district telling them to advise their attorneys “that from this day forward, any such petition will be forwarded to the proper grievance committee for appropriate action.” As judges and members of The Florida Bar it is our obligation to report incompetent counsel to The Florida Bar for its determination as to whether grievance procedures are warranted. Because the breach of duty committed by the attorney in this case was before the March 3,1982 warning letter and because the trial judge expressly, on the record, told the assistant public defender that he could file an untimely motion for new trial, we will not formally refer this case to The Florida Bar. For the same reason we shall not begin any similar proceedings under Rule 11.14 of the Integration Rule of The Florida Bar. All lawyers should now be on notice.

We certify to our Supreme Court as a question of great public interest the same question we certified in Meyer v. State, 415 So.2d 70 (Fla. 5th DCA 1982).

A. IN THE LIGHT OF THE DECISION IN POLK COUNTY v. DODSON, [-U.S.-] 102 S.Ct. 445 [70 L.Ed.2d 509] (1981), IS STATE ACTION INVOLVED IN THE FAILURE OF A PUBLICLY APPOINTED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS? B. IN THE LIGHT OF THE DECISION IN POLK COUNTY v. DODSON, [-U.S.-] 102 S.Ct. 445 [70 L.Ed.2d 509] (1981), IS STATE ACTION INVOLVED IN THE FAILURE OF A PRIVATELY RETAINED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS?
WRIT GRANTED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Timothy Paul PRIVETT, Appellant, v. STATE of Florida, Appellee.
    No. 81-1440.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

The key issue presented by this appeal is the correctness of the trial court’s admission into evidence of testimony by a state witness relating incriminating conversations that occurred in the presence of the defendant, but in which he did not verbally participate. This case is illustrative of a frequently misunderstood point of law. Statements made by a third party in the presence of a defendant (or civil party) are not, ipso facto, rendered admissible merely by his presence. This confusion has resulted from an unfortunate transmutation of the ancient evidentiary doctrine of admission by silence. E.g. Sullivan v. McMillan, 26 Fla. 543, 8 So. 450 (1890).

If a party is silent, when he ought to have denied a statement that was made in his presence and that he was aware of, a presumption of acquiescence arises. Not all statements made in the presence of a party require denial. The hearsay statement can only be admitted when it can be shown that in the context in which the statement was made it was so accusatory in nature that the defendant’s silence may be inferred to have been assent to its truth. Daughterty v. State, 269 So.2d 426 (Fla. 1st DCA 1972). To determine whether the person’s silence does constitute an admission, the circumstances and the nature of the statement must be considered to see if it would be expected that the person would protest if the statement were untrue. Tresvant v. State, 396 So.2d 733 (Fla. 3d DCA 1981), review denied, 408 So.2d 1096 (Fla.1981).

Several factors should be present to show that an acquiescence did in fact occur. These factors include the following:

1. The statement must have been heard by the party claimed to have acquiesced.
2. The statement must have been understood by him.
3. The subject matter of the statement is within the knowledge of the person.
4. There were no physical or emotional impediments to the person responding.
5. The personal make-up of the speaker or his relationship to the party or event are not such as to make it unreasonable to expect a denial.
6. The statement itself must be such as would, if untrue, call for a denial under the circumstances.

The essential inquiry thus becomes whether a reasonable person would have denied the statements under the circumstances. McCormick, Evidence, § 270 (2d ed. 1972). Florida has incorporated this rule into its Evidence Code as section 90.-803(18)(b), Florida Statutes (1981), which provides:

The provision of section 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
(18) Admissions — A statement that is offered against a party and is:
(b) a statement of which he has manifested his adoption or belief in its truth.

In this case the testimony was clear that the defendant Privett was present and heard extensive discussions of bank robberies and his participation in them. No claim of physical impediment is raised, and the statements implicating Privett in bank robberies would certainly seem to be ones which, if untrue, would call for a denial. Clearly, an admission by acquiescence can be seen by these repeated statements made in Privett’s presence without any objection by him and, indeed, with statements of his own tending to show the truth of the conversations. Here, the statements were admissible against Privett via section 90.-803(18)(b), and were properly allowed in by the trial court.

The parties have stipulated that a clerical error is present in the judgment order. The judgment states that the appellant was found guilty of a second degree felony whereas he was actually convicted and sentenced for a third degree felony. Accordingly, the cause is affirmed and remanded for correction of the judgment to reflect the proper degree of crime for which the appellant was convicted.

AFFIRMED AND REMANDED.

ORFINGER, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: PER CURIAM.

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Clifton G. JOHNSON, Appellee.
    No. 81-1458.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.
    Carey N. Bos of Rogers & Dowling, P. A., Orlando, for appellant.
    Herbert H. Hall, Jr., of Maher, Over-chuck, Langa, Cate & Lobb, Orlando, for appellee.
   PER CURIAM.

AFFIRMED. See: South Carolina Ins. Co. v. Kokay, 398 So.2d 1355 (Fla.1981); Harbach v. New Hampshire Ins. Group, 413 So.2d 1216 (Fla. 5th DCA 1982).

DAUKSCH, COBB and COWART, JJ., concur.


text:
    Ralph M. AUSTIN, Appellant, v. CITY OF MT. DORA, a municipal corporation, Appellee.
    No. 81-1512.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.

      Herbert H. Hall, Jr., and Kenneth R. Cate of Maher, Overchuck, Langa & Cate,Orlando, for appellant.
    Robert A. Hannah of Pitts, Eubanks & Ross, P. A., Orlando, for appellee.
   COBB, Judge.

The appellant, Ralph M. Austin, appeals from a final summary judgment in favor of the appellee, City of Mt. Dora. The case originated from a motorcycle accident occurring on April 28, 1978, at approximately 9:00 p. m. At that time Austin was operating a Kawasaki 650 in a westerly direction on an east-west roadway known as Crane Avenue near, but not in, the City of Mt. Dora. As Austin started down a slight hill, he failed to see a stop sign at the “T” intersection of Crane Avenue and Clayton Street, struck the guy wire of a utility pole, and crashed into an oak tree. As a result, he was permanently injured.

Crane Avenue is a comparatively short roadway connecting two north-south streets, Highland Street and Clayton Street, which run south from the city limits of Mt. Dora. Immediately west of the dead-end intersection of Crane Avenue with Clayton Street, there is forestation and undergrowth — and a power pole and guy wire placed in location by the City of Mt. Dora to service a city utility. Crane Avenue itself is not within the city limits of Mt. Dora, but is some six feet southerly thereof and located in Orange County (the southern limits of Mt. Dora being the county line of Lake County as well). The pole and guy wire and the Crane-Clayton intersection are all physically located in Orange County.

Other than a stop sign at the Crane-Clayton intersection, there were no other cautionary signs to indicate the presence of the “T” intersection, and there were no street lights in the area of the intersection at the time of the accident. There was testimony that the stop sign was obscured by vegetation and overgrowth not visible until a person was some 15-20 feet from it, and that Ralph Austin was unfamiliar with the intersection. There also was evidence that the stop sign was marked as an Orange County sign. There was no evidence that Orange County maintained either Crane Avenue or the “T” intersection. There was evidence from a Mt. Dora tree surgeon that the city annually trims trees on the south side of Crane Avenue for clearance purposes of the power lines of the city-owned utility. On one occasion some five years prior to the accident, according to testimony from the tree surgeon, the city, at the request of the Lake County School Board, had trimmed foliage from trees on the north side of Crane Avenue because of low-hanging limbs hitting Lake County school buses driven on Crane Avenue.

The appellant first challenges the correctness of the summary judgment insofar as it was based on a finding by the trial court that the City of Mt. Dora could not be held liable for maintaining an intersection outside of its city limits. Appellant argues that the city had assumed this duty of maintenance of the intersection by its prior activities and tree trimming. Appellant relies primarily on three Florida cases in support of this argument: Ide v. City of St. Cloud, 150 Fla. 806, 8 So.2d 924 (1942); City of Tamarac v. Garchar, 398 So.2d 889 (Fla. 4th DCA 1981); Nobles v. City of Jacksonville, 265 So.2d 550 (Fla. 1st DCA 1971), cert. denied, 272 So.2d 158 (Fla.1973), on appeal after remand, 316 So.2d 565 (Fla. 1st DCA 1975).

The Tamarac and Nobles cases are readily distinguished from the instant situation in that the accidents in each of those cases occurred within municipal city limits. In Ide it was alleged that the municipality of St. Cloud had specific authorization in its charter to maintain parks outside the city limits; that it maintained a bathing beach on a lake outside its corporate limits; and that two persons were drowned in a deep hole in the lake due to the city’s negligence. The Florida Supreme Court, in reversing the trial court’s dismissal of the complaint, held that the city, acting within its specific authorization, was answerable in tort for any failure of reasonable care in rendering a service to the public.

In the instant case, nothing in the provisions of the Mt. Dora charter gave it authority to maintain roadways and intersections which it had not acquired outside of its corporate limits. If the facts had shown the city had actually exercised control and maintenance of this intersection and the warning signs relating to it, then we necessarily would have to consider the ultra vires argument raised by the appellee. See Town of Palm Beach v. Vlahos, 153 Fla. 781, 15 So.2d 839 (1943); Scott v. City of Tampa, 62 Fla. 275, 55 So. 983 (1911); City of Orlando v. Pragg, 31 Fla. 111, 12 So. 368 (1893). But the facts adduced before the trial court in this case do not support a basis for any finding that the city voluntarily assumed the duty of traffic maintenance of this intersection, thereby inducing Orange County to rely on its undertaking. Cf. Weber v. Towner County 565 F.2d 1001 (8th Cir. 1977). On the contrary, the unrebutted evidence in this record is that the intersection is entirely within Orange County, the traffic sign.at the intersection was marked as an Orange County sign, and the only maintenance done along Crane Avenue by Mt. Dora has been the trimming of trees for clearance of its power line on the south side of the roadway and, on one occasion five years ago, the trimming of low-hanging branches of trees on the north side for the benefit of the Lake County School Board. The obstruction of the stop sign on the north side of Crane Avenue contended by the plaintiff consists of vegetation other than tree branches extending at school bus level. As pointed out by the Florida Supreme Court in Landers v. Milton, 370 So.2d 368 (Fla.1979): In this case, the competent evidence supporting the motion referred to above was unrebutted by any counterevidence that would create a factual issue as to placement or ownership of the sign, location of the relevant areas in Orange County, or traffic maintenance and regulation of the intersection and the Crane Avenue approach to it by Mt. Dora. Consequently, the trial judge was not in error in entering a summary judgment in favor of the city in regard to the issue of maintenance for road traffic of the intersection and Crane Avenue.

A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. But once he tenders competent evidence to support his motion, the opposing party must come forward with countere-vidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist.

The second issue posed by the appellant concerns the reliance by the trial court on the case of Romine v. Metropolitan Dade County, 401 So.2d 882 (Fla. 3d DCA 1981), review denied, 412 So.2d 469 (Fla.1982), wherein it was held that the failure of a county to cut back trees and shrubbery adjacent to an intersection, where the county never undertook or exercised any responsibility for cutting such undergrowth, constituted a planning or discretionary governmental decision, thereby creating immunity under the rationale of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Since we are not concerned with the immunity issue as it relates to traffic control of the intersection, for the reasons set forth in our discussion of the first issue on appeal, we will consider governmental immunity only in conjunction with the third issue raised by this appeal: whether the trial court was in error in finding, as a matter of law, that the City of Mt. Dora was not negligent in locating its power pole and guy wire at the end of a “T” intersection.

In regard to this latter finding, the trial court relied on the case of Speigel v. Southern Bell Telephone & Telegraph Co., 341 So.2d 832 (Fla. 3d DCA 1977). In Speigel, the defendants were charged with negligently maintaining a telephone pole too near a roadway, and the pole was struck by plaintiffs’ deceased driver. Summary judgment for the defense was affirmed on appeal on the basis “that a utility company is under no obligation to guard against extraordinary exigencies created when a vehicle leaves the travelled portion of a roadway out of control.” The appellant does not argue with the rationale of Speigel, which apparently involved a straight roadway, but contends that the instant factual situation is more analogous to, and controlled by, the Florida Supreme Court case of Peninsular Telephone Co. v. Marks, 144 Fla. 652, 198 So. 330 (1940). In Peninsular, there were allegations and evidence that the defendant telephone company had placed its pole approximately 30 inches from the westerly curb line of a north-south street at a point where it began a sharp curve in a southeasterly direction, at a point where the curve and pole were obscured from the view of motorists by a slight incline or hill; the vehicle in which plaintiff was a passenger was travelling south at between 35-45 miles per hour, and skidded off the road at the curve into the pole. The trial court found this sufficient for submission to a jury on the issue of negligence against the company, and the decision was affirmed on appeal by the Florida Supreme Court.

We find the instant facts involving the placement by the defendant city of its power pole and guy wire some two to three feet from the pavement at the end of a deadend intersection much more analogous to the factual situation in Peninsular (a sharp curve) than that in Speigel (a straight road). Indeed, at oral argument, it was conceded that this was so, and that the sustaining of the summary judgment in favor of the city in regard to the issue of its negligence in placement of the guy wire (the evidence was that the plaintiff struck the guy wire, not the pole) must stand on a determination of governmental immunity under the principles set forth in Commercial Carrier. In other words, if the city’s placement of the guy wire did not constitute a discretionary “planning” function, as opposed to an “operational” function, then the summary judgment must be reversed on authority of Peninsular.

In determining whether to classify the city’s action in placement of the guy wire as a planning function or an operational function, we first apply the preliminary test suggested by the Commercial Carrier opinion, which it adopted from Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965):

Whatever the suitable characterization or label might be, it would appear that any determination of a line of demarcation between truly discretionary and other executive and administrative processes, so far as susceptibility to potential sovereign tort liability be concerned, would necessitate a posing of at least the following four preliminary questions: (1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? If these preliminary questions can be clearly and unequivocally answered in the affirmative, then the challenged act, omission, or decision can, with a reasonable degree of assurance, be classified as a discretionary governmental process and nontortious, regardless of its unwisdom. If however, one or more of the questions call for or suggest a negative answer, then further inquiry may well become necessary, depending upon the facts and circumstances involved.

In applying the Evangelical questions to the instant factual context, we find, in respect to the decision of selecting a location for a pole and guy wire to support city power lines, that questions (1), (2) and (3) must be answered in the negative. Question (4) merits an affirmative answer, since Mt. Dora’s charter apparently authorizes it to erect and maintain its power line beyond its corporate limits. See §§ 7 and 25, Chapter 29-302, Laws of Florida (1953). Clearly, then, under the Evangelical test, further inquiry is indicated. See Harrison v. Lasi-ter, - So.2d - (Fla. 1st DCA 1982).

In the instant situation, it reasonably may be argued that the decision by the City of Mt. Dora to have a city utility and to erect lines from its power plant to transmit power along Clayton Street and Crane Avenue constitutes a planning function involving basic policy judgments. But the location of individual poles and guy wires to support those power lines is an implementation of policy, hence an operational function. Griffin v. City of Quincy, 410 So.2d 170 (Fla. 1st DCA 1982). The spacing of poles cannot be said to involve a basic governmental policy or objective. It was not essential to the implementation of the city’s objective of distributing electric power that a pole and guy wire be placed directly opposite the dead-end of the “T” intersection of Crane Avenue and Clayton Street.

Accordingly, we affirm the entry of summary judgment insofar as it relates to traffic maintenance of the intersection and the stop sign, but reverse insofar as it relates to placement of the guy wire by the city.

AFFIRMED in part; REVERSED in part; REMANDED for further proceedings consistent with this opinion.

.FRANK D. UPCHURCH and COWART, JJ., concur.


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

text:
    STATE of Florida, Appellant, v. Jeff Charles CARGAL, Appellee.
    No. 81-1630.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    No appearance for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

The state appeals from an order granting Cargal’s motion to suppress. Police officers, who had been given permission by Cargal to enter a motel room he was sharing with Morrison, observed marijuana residue in the toilet bowl, sink and bathtub. Miranda warnings were given and Morrison was questioned about a van parked outside. Morrison admitted the van was his and said the officers could search it but added that his wife had the keys. Cargal told another officer that the van was his and consented to its search. The officers discovered that a vent window was open and entered. A strong odor of marijuana was detected coming from a duffel bag in the back of the van. The texture of the bag’s contents was grassy in nature. The bag was seized and opened. Marijuana and an automatic pistol were found inside.

Miranda warnings were again given and Cargal and Morrison were arrested. The officers gave Morrison and Cargal a moment to speak to one another and Cargal then informed the police that the drugs and pistol were his.

We REVERSE the trial court’s order granting the motion to suppress.

The transcript of the suppression hearing reveals that Cargal conceded that Morrison validly consented to the search of his (Morrison’s) van. Therefore the only issue is whether the warrantless search of Cargal’s duffel bag was proper.

Cargal explicitly consented to the search of the van and the state presented clear and convincing evidence that this consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Norman v. State, 379 So.2d 643 (Fla.1980). No limitations were placed on the areas of the van to be searched by either Morrison or Cargal. As stated in State v. Custer, 251 So.2d 287 (Fla. 2d DCA 1971);

A voluntary consent to search a given area cannot limit the fruits of a search thereof. Once consent was given to search the entire automobile any contraband found therein was subject to seizure.

251 So.2d at 288-89. See also United States v. Ross, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

REVERSED.

SHARP and COWART, JJ., concur.

      . It was stipulated at the suppression hearing that Morrison did own the van.


author: COWART, Judge.

text:
    Paul BRISENO, et al., Petitioners, v. The Honorable Robert R. PERRY, etc., Respondent.
    No. 82-990.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.
    Carl Jackson Moore, Palatka, for petitioners.
    No appearance for respondent.
   COWART, Judge.

During the 180 day speedy trial rule right period relating to felony charges on which petitioner had been arrested, the trial court on May 25, 1982, orally granted an oral motion of the State for a continuance and extended the rule time for exceptional circumstances. After the expiration of the speedy trial rule period but before a written or recorded order granting such continuance and extending time was filed of record, petitioner moved for a discharge. The trial court then entered, nunc pro tunc to May 25, 1982, a written order documenting the original oral order and thereupon denied petitioner’s motion for discharge. Petitioner seeks a writ prohibiting the trial judge from further handling any prosecution against him on account of the conduct or criminal episode for which he was arrested, contending that the rule right period had run and that he was forever discharged under Florida Rule of Criminal Procedure 3.191(a)(1).

The question is whether the nunc pro tunc order in this case constitutes a “written or recorded order of the court” within the meaning of Rule 3.191(d)(2). We hold it does. Aside from its particular definition in Florida Rule of Appellate Procedure 9.020(g), a judgment or order is rendered and is valid and binding when it is orally given, pronounced or announced, although the only competent evidence of that judicial act is a memorial or record in the form of a later written and signed order or judgment. Nunc pro tunc means “now for then” and when applied to the entry of a legal order or judgment it normally refers, not to a new or de novo decision, but to the judicial act previously taken, concerning which the record is absent or defective. The later record-making act constitutes but later evidence of the earlier effectual act. See Luhrs v. State, 394 So.2d 137 (Fla. 5th DCA 1981), citing Becker v. King, 307 So.2d 855 (Fla. 4th DCA), cert. dismissed, 317 So.2d 76 (Fla.1975), which was recently again cited with approval by this court in Blais v. Blais, 410 So.2d 1365 (Fla. 5th DCA 1982).

Accordingly, we hold the nunc pro tunc order when entered was effective ab initio as of May 25, 1982, as a written or recorded order under Rule 3.191(d)(2) and, therefore, the petition for writ of prohibition is

DENIED.

ORFINGER, C. J., and DAUKSCH, J., concur.


text:
    In the Interest of A. D., a child.
    No. 80-1922.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 1982.
    Richard L. Jorandby, Public Defender, and Robert C. Fallon, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We dismiss this appeal from a non-final order of the circuit court, juvenile division, waiving jurisdiction over the minor child, A.D. and certifying him for trial as an adult, on the authority of R.J.B., a child v. State, 408 So.2d 1048 (Fla.1982).

APPEAL DISMISSED.

LETTS, C. J., and HERSEY and HURLEY, JJ., concur.


text:
    William S. ROACH, Appellant, v. LOXAHATCHEE GROVES WATER CONTROL DISTRICT, Appellee.
    No. 81-134.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 1982.

      John L. Bryan, Jr., of Scott, Royce, Harris & Bryan, P. A., Palm Beach, for appellant.
    Don Beverly of Beverly & Freeman, West Palm Beach, for appellee.
   OWEN, WILLIAM C., Jr., (Retired) Associate Judge.

The principal issue on this appeal is whether a water control district created under and governed by Chapter 298, Florida Statutes (1981), properly denied a landowner permission to build a bridge over the district’s canal. We hold that the power of a district to deny a bridge permit can only be based on a finding that the proposed bridge would obstruct the water flow in the canals or otherwise threaten the effectiveness of the canals. Accordingly, we reverse and remand with directions.

The appellant Roach, a landowner who owns property abutting the appellee Loxa-hatchee Groves Water Control District (the District), desiring to bridge one of the District’s canals in order to gain access to a public road, “F” Street, submitted an application to the District for permission to build a culvert or bridge and requested the information he would need to design a bridge compatible with the District’s water management plan. After several communications, Roach was informed that the District had, on March 12, 1979, adopted a policy of prohibiting new culverts and of prohibiting bridges that would restrict water flow in the canals. The District, however, failed to provide more specific information concerning the amount of water flow contemplated and the type or types of bridges that would be compatible with its plan.

In due course, the District held a public hearing on Roach’s application. The board considered a report prepared by the District staff and engineer. The report recommended denial of permission for a number of reasons including the fact that Roach had failed to provide construction plans. Other than considering the report, the board did not address the question of whether Roach’s proposed bridge would interfere with the water flow in the District’s canals. The only evidence on that issue was the statement by Roach’s attorney that Roach would construct the bridge in compliance with any conditions, any specifications, and any limitations the board would provide. The focus of the hearing concerned Roach’s proposed use of his property, the traffic impact, and the economic impact on the residents who live within the District boundaries. At the conclusion of the hearing, the board voted to deny the application. On December 8, 1981, the board rendered a written order denying the application for the reason that, “The issuance of a bridge permit would not be in the best interests of the District, its landowners and taxpayers.”

The Legislature, in providing for the organization of water control districts (then commonly known as drainage districts) by the enactment of a general law now codified as Chapter 298, Florida Statutes (1981), conferred certain limited powers on these statutory creatures for the purpose of reclaiming and draining swamps and overflowed lands. See Ideal Farms Drainage District v. Certain Lands, 154 Fla. 554, 19 So.2d 234, 239 (1944); Palm Beach County v. South Florida Conservancy District, 126 Fla. 170, 170 So. 630 (1936). The management of each district is by a board of supervisors. Because the districts are creatures of statute, each board of supervisors must look entirely to the statute for its authority. State ex rel. Davis v. Jumper Creek Drainage District, 153 Fla. 451, 14 So.2d 900, 901 (1943). The law is well-settled that drainage districts have only those powers which the Legislature has delegated by statute. Forbes Pioneer Boat Line v. Board of Commissioners, 77 Fla. 742, 82 So. 346 (1919) (no power to collect tolls); State ex rel. Vans Agnew v. Johnson, 112 Fla. 7, 150 So. 111, 112 (1933); Halifax Drainage District of Volusia County v. State, 134 Fla. 471, 185 So. 123, 129 (1938) (only limited taxing power); State ex rel. Davis v. Jumper Creek Drainage District, 153 Fla. 451, 14 So.2d 900, 901 (1943); Rabin v. Lake Worth Drainage District, 82 So.2d 353, 355 (Fla.1955), cert, denied, 350 U.S. 958, 76 S.Ct. 348, 100 L.Ed. 833 (1956); see generally 20 Fla.Jur.2d Drains & Sewers § 6 (1980).

The appellee District, in the present case, has asserted that the Legislature conferred general police powers on water control or drainage districts. To support this assertion, the appellee relies on certain language that was contained in Section 298.01(1), Florida Statutes (1979). That provision provided that drainage districts could be formed “for the purpose of preserving and protecting water resources, for sanitary and agricultural purposes, or when the same may be conducive to the public health, convenience or welfare, or of public utility or benefit, by drainage, irrigation, or water management.” (emphasis added). The ap-pellee asserts that the emphasized portion constitutes a grant of general police powers.

The appellee’s argument is flawed for numerous reasons. First, to the extent that the Legislature allowed drainage districts to conduct activities conducive to public health, convenience or welfare, those activities are explicitly limited to “drainage, irrigation, or water management.” Thus, contrary to the appellee’s assertions the quoted language does not evidence a legislative intent to confer general police powers. Second, the section relied upon merely regulated the formation of districts, not their powers. The particular language relied upon was deleted effective July 1,1980, when the Legislature amended the statute and changed the rules regarding formation of districts. See Ch. 80-281, §§ 1 and 14, Laws of Fla. Third, the amendment deleting the quoted language became effective prior to the denial of appellant Roach’s application. Thus, even if one could construe the quoted language as evidence of legislative intent to confer general police powers, one would have to conclude that the Legislature withdrew those powers as of July 1, 1980. Finally, the delegation of unlimited legislative police powers to a water control district without greater guidelines than exist in the present statute would probably be unconstitutional in violation of the Florida nondelegation doctrine. See, e.g., Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1978).

The District also relies on Section 298.-22(5), Florida Statutes (1981), which gives the District the power to own property. We note, however, that power is granted for the limited purpose of allowing the District “to effect the drainage, protection and reclamation of the land in the district ... . ” § 298.22, Fla.Stat. (1981). Thus, the legislative grant of power is limited to that reasonably necessary to accomplish the goals for which water control districts were brought into existence: drainage, protection, and reclamation of swamps and low lying lands.

Having determined that water control districts do not have general police powers but only those powers delegated by statute, we look to Sections 298.001 to 298.-78, Florida Statutes (1981). Section 298.24 is the principal provision that governs bridge construction. It provides in part as follows:

All bridges contemplated by this chapter and all enlargements of bridges already in existence shall be built and enlarged according to and in compliance with the plans, specifications and orders made or approved by the chief engineer of the district. .. . Any owner of land, within or without the district, may, at his own expense, and in compliance with the terms and provision of this chapter, construct a bridge across any drain, ditch, canal or excavation in or out of said district.

§ 298.24, Fla.Stat. (1981). Although this section is not a model of clarity, we believe the Legislature intended to confer a right on landowners to build bridges across drainage canals. The Legislature, however, did not confer an unconditional right; landowner bridges must be built so as not to obstruct or destroy canals. § 298.66, Fla. Stat. (1981). Thus, a landowner must construct the bridge so that it will not interfere with the district’s drainage or reclamation plan by obstructing the water flow in the canals or otherwise impairing the effectiveness of the canals. Moreover, the quoted passage indicates that landowner must seek approval of bridge construction plans by the district’s chief engineer. The engineer, however, has no right to refuse to allow a landowner to build a bridge. The engineer may only require that the landowner build a bridge that will not obstruct the water flow in the canals or otherwise damage the effectiveness of the canals. If the district wishes to be more specific in its requirements, the district engineer should then provide the landowner with sufficiently detailed requirements as would reasonably allow the landowner to design and construct a bridge compatible with the district’s water management plan.

In the present case, the appellant’s application for a bridge permit was refused on the ground that, “The issuance of a bridge permit would not be in the best interests of the District, its landowners and taxpayers.” The board had no power to refuse permission on that broad ground. At most, the board had the power to refuse permission on the ground that the chief engineer, for good reason as above set out, had failed to approve the construction plans.

As we noted above, the district notified Roach only that bridges cannot interfere with the water flow in the canals and that bridges cannot be in the form of a culvert. His application for a bridge permit should be reconsidered to determine whether the proposed bridge meets those requirements. If so, the district should issue the permit. If not, the district may again deny the requested permit upon a finding that the proposed bridge would obstruct the water flow in the canals or otherwise threaten the effectiveness of the canals.

The order is reversed and this matter remanded to the agency for further proceedings consistent with this court’s opinion.

REVERSED AND REMANDED.

HERSEY and GLICKSTEIN, JJ., concur.

      . We note that a notarized surveyor’s report, attached as part of the record, states that the road was dedicated to the public on June 4, 1925. In addition, the District concedes that the road is open to the residents of the District. We assume, without deciding, that the District was formerly known as the Loxahatchee Drainage District and that the District has the power to maintain the road because of a special law conferring that power. See Ch. 76-455, §§ 1-4, Laws of Fla.; § 298.76(l)(d), Fla.Stat. (1981). The power to maintain, however, does not allow the District to discriminate against non-district residents.

      . The staff report cited the following reasons for denying permission: (1) Roach had not supplied a traffic study, (2) Roach failed to furnish construction plans [but the appellee conceded at oral argument that Roach’s position was that he would construct the bridge to any specifications the District would supply], (3) Roach’s proposed use of his property is vague, (4) Roach failed to submit a plan for contributing to the maintenance of “F” Street, (5) Roach failed to agree to acquire right-of-ways and to upgrade the quality of “F” Street, (6) Roach failed to submit a satisfactory plan to hold the District harmless for any claims or damages, (7) the roads in the District could not support additional traffic, (8) Roach’s property lies outside the District and he could obtain an alternative means of access outside the District, (9) Roach’s use of the road would burden the taxpayers in the District, and (10) Roach might violate county zoning requirements by obtaining access to “F” Street.


text:
    Theresa L. KATZ, Appellant, v. Mervyn KATZ, Appellee.
    No. 81-886.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 1982.
    Lois J. Frankel of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., and Edna L. Caruso, West Palm Beach, for appellant.
    Gary I. Zwickel of Zwickel, Gross & Kes-sler, Lake Worth, for appellee.
   PER CURIAM.

We are asked to decide whether a trial court, in a post-judgment proceeding, may enforce a pre-trial order when the substance and requirements of that order were not incorporated in the final judgment of dissolution. We answer in the negative.

Prior to trial, the trial court ordered the wife to be responsible for certain telephone charges. Ten months later, the court entered a final judgment of dissolution which determined the spouses’ property rights but did not mention the telephone charges, either expressly or by implication. Rehearing was requested by the husband and denied. Thereafter, the former husband filed a motion for contempt in which he alleged that the former wife had violated the pretrial orders by failing to pay the telephone charges, which amounted to $134.45. The trial court entertained the motion, found the former wife in contempt, allowed the former husband to deduct the $134.45 from rehabilitative alimony payments, and assessed attorney’s fees against the former wife. She appealed.

Several issues have been raised on appeal, but the threshold and dispositive question is whether the trial court had jurisdiction to adjudicate and enforce a matter which was not contained in the final judgment of dissolution. Case law uniformly suggests that the answer is “no.” For example, in Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (1948), the Supreme Court restated the general rule “that a final decree in an equity suit settles all property rights of the parties and bars any action thereafter brought by either party to determine the question of property rights.” Id. at 423-24. Similarly, Altieri v. Altieri, 341 So.2d 525 (Fla. 1st DCA 1977), held that “[a] trial court does not possess the power to impose in a post-judgment order new duties not adjudicated in a former decree which has become final and absolute.” Id. at 527; see also, Cooper v. Cooper, 69 So.2d 881 (Fla.1954).

Today’s ruling may seem hyper-technical and unfair. But it should be remembered that had appellee timely requested relief, the trial court could have enforced its pretrial orders at any time prior to, or in connection with, the entry of the final judgment. Furthermore, had the court been aware of a problem in compliance, it could have drafted the final judgment’s retention of jurisdiction clause with sufficient clarity to enable the court to provide post-judgment enforcement. Cf. Finston v. Finston, supra, with Mullins v. Mullins, 409 So.2d 143 (Fla. 4th DCA 1982). Since none of these actions was taken in the case at bar, the court lacked authority for the order under review.

GLICKSTEIN, HURLEY and DELL, JJ., concur.


text:
    Tony Russell STUDSTILL, Appellant, v. STATE of Florida, Appellee.
    No. 81-1291.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 1982.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell H. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Sawyer v. State, 401 So.2d 939 (Fla. 1st DCA 1981); cf. Williams v. State, 414 So.2d 509 (Fla.1982) (timely objection to retention of jurisdiction over sentence).

DOWNEY, HURLEY and DELL, JJ., concur.


author: DELL, Judge.

text:
    Patricia HAINES, Appellant, v. John E. HAINES, Appellee.
    No. 81-1577.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 1982.

      Amy Shield Levine, Boca Raton, and Law Offices of James F. Simpson, West Palm Beach, for appellant.
    J. Brian Brennan, West Palm Beach, for appellee.
   DELL, Judge.

Patricia Haines, respondent below, appeals the order of the trial court granting appellee’s petition for change of custody of the parties’ minor son. Appellant contends the trial court erred by granting the petition, by denying her counter petition for increased child support, and by excluding her attorney fee witness, resulting in denial of her motion for attorney fees. We reverse on all points.

When considering a petition for modification of custody, the trial court has less discretion than it had in entering the original decree. To alter custody, the record must contain substantial competent evidence of both a substantial or material change in the circumstances of the parties, and that the best welfare of the child will be promoted by such change in custody. Nicholson v. Nicholson, 311 So.2d 676 (Fla. 4th DCA 1975); Culpepper v. Culpepper, 408 So.2d 782 (Fla. 2d DCA 1982); Stricklin v. Stricklin, 383 So.2d 1183 (Fla. 5th DCA 1980); Sanders v. Sanders, 376 So.2d 880 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1117 (Fla.1980). The final order finds that the best interests of the child call for transfer of custody, but is silent as to any change in circumstances. The record fails to demonstrate substantial competent evidence of a material change in circumstances which would support a modification of custody. The trial judge abused his discretion in entering this order.

In her counter petition, appellant asked for attorney fees, but failed to list an attorney fee expert on the witness list. At final hearing, appellant’s counsel sought to introduce the testimony of this witness, appel-lee’s counsel objected, and the following colloquy took place:

THE COURT: You say you didn’t list him as an expert witness?
MR. SIMPSON: No, sir.
THE COURT: Did you list him at all? MR. SIMPSON: No, sir. I just always call an attorney to testify as an expert witness. I just forgot to list him. I would request to amend my certificate at this time to include him or present it at a later date.
THE COURT: Objection sustained.

The resolution of problems regarding the testimony of undisclosed witnesses in civil litigation rests within the broad discretion of the trial judge, guided by a determination as to whether or not the objecting party will suffer prejudice. Prejudice here refers to surprise in fact, and the court may also consider the objecting party’s ability to cure the prejudice, the calling party’s possible bad faith non-compliance with witness disclosure, and the possible disruption of the orderly administration of the trial. Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981).

If after considering these factors, and any others that are relevant, the trial court concludes that the use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify.

Id., at 1314.

It does not appear that the trial judge considered any of these factors. Since appellant asked for attorney fees in her pleadings, appellee cannot reasonably claim surprise at the attempt to introduce testimony on this issue. Any prejudice could have been cured by holding a separate hearing at a later date, as frequently occurs in domestic relations eases, and as requested by appellant’s counsel. Appellant’s counsel testified that he merely forgot to include the witness on the witness list, and the record shows no reason to infer an intentional, bad faith noncompliance. Finally, the record contains no evidence as to any possible disruption of the case or the trial calendar. On this record no basis exists to support a conclusion that the use of this attorney fee expert witness would substantially endanger the fairness of the proceeding, and his testimony should have been admitted.

We reverse the order of the trial court and remand the cause for entry of such orders as are necessary to restore custody to appellant; for consideration of appellant’s counter petition for increased child support; and for an evidentiary hearing on appellant’s entitlement to attorney fees.

REVERSED and REMANDED with directions.

GLICKSTEIN and WALDEN, JJ., concur.


text:
    Earl Franklin SMYTH, Appellant, v. Peggy L. SMYTH, Appellee.
    No. 81-1772.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 1982.
    James R. Hustad of Hustad & Kurtz, West Palm Beach, for appellant.
    Edna L. Caruso, West Palm Beach, and James M. Tuthill of Christiansen & Jacknin, Palm Beach, for appellee.
   PER CURIAM.

Affirmed. This Court sua sponte awards appellee attorneys fees in this appeal pursuant to Section 57.105, Florida Statutes (1981) in the amount of $500.00.

LETTS, C. J., and HERSEY and DELL, JJ., concur.


text:
    FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF MARTIN COUNTY, Appellant, v. Lisa McROBERTS, Appellee.
    No. 81-1904.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 1982.
    William D. Anderson, Jr., of Anderson & Dungey, P. A., Stuart, for appellant.
    Edward B. Galante of McRoberts, Steger & Galante, P. A., Stuart, for appellee.
   PER CURIAM.

We reverse the final judgment upon the authority of Fidelity Federal Savings and Loan Association v. de la Cuesta,-U.S. -, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982).

Reversed and remanded.

GLICKSTEIN, DELL and WALDEN, JJ., concur.


author: ANSTEAD, Judge.

text:
    STATE of Florida, Appellant, v. Jere Daniel BELL, Darrell Armbruster, Fred Cunningham, III, William McAllister Morrell, Adrian T. Perschl, Jr., James Lee Winberry, Gary Cawthorne and Michael Garth Manning, Appellees.
    No. 81-1988.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    Dean L. Willbur, Jr., of Burns & Willbur, Tequesta, for appellees.
   ANSTEAD, Judge.

The trial court granted a motion to suppress evidence seized during a search conducted pursuant to the execution of a search warrant. The trial court concluded that the warrant was improperly issued because the police officers who had observed the activities of appellees which gave rise to the issuance of the warrant had not been shown to have had a legal right to be where they were when they made their observations. We reverse.

Apparently the officers observed appel-lees at various times from vacant residential lots and a lot upon which a condominium apartment building was being constructed. To sustain their position in the trial court the appellees relied solely on statements of the officers that they had not specifically secured permission of the property owners before going onto the properties. The appellees had no interest in the lots in question and no evidence was adduced as to the identity of the owners of the lots.

In the case of Ensor v. State, 403 So.2d 349 (Fla.1981) the Supreme Court distinguished the type of police conduct involved herein from the earlier established “plain view” exception to the warrant requirement:

The third situation concerns a “pre-in-trusion.” Here, the officer is located outside of a constitutionally protected area and is looking inside that area. If the officer observes contraband in this situation, it only furnishes him probable cause to seize the item. He must either obtain a warrant or have some exception to the warrant requirement before he may enter the protected area and seize the contraband. As with the non-intrusion situation, the term “plain view” should not be employed here to prevent confusion. For clarity, we label an observation in the latter two non-Coolidge situations as a legally permissive “open view.”

Id. at 352. As in Ensor, the police here were located outside of any constitutionally protected area and looking into such an area when they gathered the information that furnished probable cause for the subsequent issuance of a warrant. Also see State v. Rickard, (Fla. Supreme Court case No. 54,877, opinion filed April 29, 1982) [7 FLW 193],

However, the appellees claim that the police must demonstrate that they were legally upon the adjacent property at the time they made their observations. We think the appellees have misconceived their burden to establish standing and have also failed to establish a reasonable expectation of privacy under the factual circumstances present herein. Defendants who challenge a search conducted pursuant to a warrant have the burden of demonstrating the illegality of the search and a violation of their reasonable expectation of privacy.

Initially, and as a predicate to complaining about an illegal search, a defendant must establish his own standing or reasonable expectation of privacy in the premises. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Put simply, a person can only complain about illegal police intrusions into areas wherein that person has a valid personal expectation of privacy. Katz. In the usual case, for instance, a homeowner would clearly have standing to complain about an illegal intrusion into his home but would not have standing to complain about an illegal intrusion into his neighbor’s home. In our view that is precisely the situation we have at hand. The appellees are complaining about an alleged illegal intrusion onto property in which they concededly had absolutely no expectation of privacy. Just as a defendant is barred from challenging an illegal search of the very premises upon which he is located absent a demonstration of personal privacy rights, we believe he is similarly barred from challenging an illegal intrusion onto property in which he admittedly has no interest and in which no search or seizure takes place.

We concede that most of the cases that involve police surveillance of illegal activity or contraband note the status of the police on the property from which the surveillance is made. See e.g. State v. Rickard, supra. In cases of “plain view” where the police are in a constitutionally protected area when they observe the contraband or illegal activity, it is clear that the police must have a legal right to be where they are vis-a-vis the privacy rights of the person complaining. However, when the police are located outside of a constitutionally protected area we do not believe a defendant has standing to complain of the legal status of the police observer absent evidence that the police have otherwise violated the defendant’s expectations of privacy. In other words, a person who conducts illegal activity or possesses contraband that is completely open to view from adjacent property will not generally be deemed to have a reasonable expectation of privacy. Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA 1978). In the case at hand the appel-lees demonstrated no expectation that their activities would not be observed by persons who might intentionally or accidentally come upon the vacant lots or construction site in question. Those persons might include the owners of the lots in question, legitimate visitors, casual trespassers or the police themselves.

Accordingly, having concluded that the appellees have failed to demonstrate a violation of their privacy rights, we reverse the order of the trial court and remand this cause for further proceedings.

HERSEY, J., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.

      . Indeed, we do not believe appellees demonstrated that the police were acting unlawfully in going upon the vacant lots and construction site. Absent a demonstration to the contrary we believe police officers have an implied invitation to go upon open vacant residential lots and construction sites when they determine that suspicious activity is taking place in the vicinity. One of the basic purposes of police protection is to observe and protect property such as was involved herein. For instance, it would be of substantial surprise to this court to find that the owner of the condominium development project involved would be upset if he learned that the police had gone upon the construction site in the evening hours. To the contrary, we would expect that the owner would be anxious to have the extra police attention. The same may be said of the vacant lots. Of course, property that is improved is usually treated differently in view of the substantial privacy rights of the occupants. See e.g. Hansen v. State, 385 So.2d 1081 (Fla. 4th DCA 1980), pet. for rev. denied 392 So.2d 1379 (Fla. 1980). This does not mean that the possessor of a vacant lot or construction site may not expressly bar the police or otherwise demonstrate exclusionary privacy interests in the property by the erection of signs, fences, etc., but such has not been demonstrated to have occurred here.


text:
    Dominick GUDDEMI, Appellant, v. STATE of Florida, Appellee.
    No. 82-39.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 1982.
    Joseph J. Titone of Joseph J. Titone, P.A., and Richard L. Polin, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See, State v. Grant, 392 So.2d 1362 (Fla. 4th DCA 1981), petition for rev. denied, 402 So.2d 610 (Fla.1981).

LETTS, C. J., and HERSEY and DELL, JJ., concur.


author: DANAHY, Judge.

text:
    Shirley H. ST. LAURENT, Appellant, v. Lewis S. ST. LAURENT, Appellee.
    No. 81-1829.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 1982.

      James R. Long and John H. Shearer, Jr., Fort Myers, for appellant.
    Jerome H. Shevin and Marsha C. Rosen of Sparber, Shevin, Rosen, Shapo & Heil-bronner, Miami, for appellee.
   DANAHY, Judge.

We hold that the trial judge abused his discretion in designating portions of the wife’s alimony awards as rehabilitative and terminable at the end of two years.

The parties are in their early 40’s and were married approximately fourteen years. They have three children. The husband is an attorney and financial investor, and the trial judge found that he has the present capability of earning approximately $55,000 per year. The trial judge also found that the wife, who has worked, is capable of earning approximately $6,000 annually. Among other financial arrangements in the final judgment, the trial judge required the husband to pay rehabilitative alimony to the wife in the amount of $600 per month for a period of two years. Thereafter, the husband’s rehabilitative alimony obligation is to terminate and the husband is to pay the wife the sum of $300 per month as permanent periodic alimony. The trial judge also required the husband to pay one-half the wife’s reasonable and necessary medical expenses for a period of two years.

The trial judge thus tacitly found that, in addition to his other obligations under the final judgment, the husband has the ability to pay the wife the sum of $600 per month and to contribute to payment of her medical expenses, and the wife has a need for such assistance. The record supports that determination. The record does not support the trial judge’s determination that the wife’s alimony should be partially rehabilitative in nature.

As we have pointed out, rehabilitative alimony presupposes the potential for self-support. Without this capacity, there is nothing to which one can be rehabilitated. Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975). Nothing in the record before us suggests that the wife may be able, in two years’ time, to earn an income sufficient to support herself in a style reasonably commensurate with that which she enjoyed during the marriage. Under these circumstances, an award of rehabilitative alimony is an abuse of discretion. The husband should be required to assist in the wife’s support on a permanent basis, subject always to the right of obtaining relief under changed circumstances. We, of course, do not rule out the possibility that some time in the future the wife might earn a much greater income than $6,000. That possibility, however, is purely speculative and it does not justify the trial judge’s action in designating a part of the wife’s alimony award as rehabilitative in nature. In re Marriage of Jones, 357 So.2d 439 (Fla. 2d DCA 1978).

The wife challenges the final judgment in other respects, which we have considered and found to be without merit.

Accordingly, we reverse the final judgment with directions that the wife’s alimony of $600 per month be made permanent, and the husband’s obligation to pay one-half the wife’s reasonable medical expenses be made permanent. We affirm the final judgment in all other respects.

REVERSED in part, AFFIRMED in part, and REMANDED with directions.

BOARDMAN, A. C. J., and GRIMES, J., concur.


text:
    Larry Donall ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. AC-252.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1982.
    Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant appeals from a judgment and sentence for sexual battery. We affirm in part, reverse in part, and remand for further proceedings with directions.

I

The first issue for our consideration is whether the trial court erred in permitting eyewitness identification. The relevant facts are that appellant, Larry Adams, was charged with sexual battery of a person over the age of 11 by the use of physical force and violence likely to cause serious personal injury or the use or threat to use a deadly weapon, a knife. The victim reported that a black man approached her about 10:00 at night and began beating her. The beating was so severe that her nose was fractured, her eyes were puffy, and at least two teeth were knocked loose. She fought vigorously against the attack until she passed out. After she regained consciousness, the assailant dragged her off into a dark wooded area near the street and raped her. The victim stated that her attacker was not anyone that she had known before and that she was able to see the attacker’s face clearly in the street light when the attack began, although it was too dark to see his face during the rape. She described her attacker as approximately 5'9", 160 pounds, hair on his chin, and dressed in khaki pants and a blue shirt.

Appellant filed a motion to suppress the victim’s eyewitness identification, both in-court and out-of-court, alleging that the witness had only a few minutes to glimpse the perpetrator and that her vision was impaired by the beating by the perpetrator. Furthermore, two days after the incident the witness was unable to identify the defendant’s photograph from a group of eight photographs. On the following day, she identified the appellant in a line-up only after certain impermissibly suggestive incidents occurred. First of all, the defendant was the only participant in the line-up whose photograph had also been displayed to her one day earlier. Of the five individuals in the line-up, the victim knew the first three participants by name, and the defendant was the first participant the witness did not know. In addition, the defendant was displayed to the victim considerably longer than the first three participants and when he was displayed, the victim was instructed “to look at him closely.” At the time the victim viewed the line-up, she had been informed that the police had picked up someone that they thought had committed the offense.

At the hearing on the motion to suppress prior to trial, the victim testified that she was unable to identify the perpetrator of the offense in the photographic line-up because her eyelids were so swollen that she could not see well. She did testify that on the following day she was informed that the police had picked up a suspect in her case before she viewed the line-up. The line-up was handled in such a way that each man was brought out one at a time for the victim to view; they were not all brought out at once. She recognized and personally knew the first three participants in the line-up and so indicated this to the police officer. She testified on direct that when the fourth person came out, the police officer told her to look at him very closely. On cross-examination, she testified that the officer told her that before each of the five people came out. She also testified that she picked out the fourth man as soon as she saw him and before she saw the fifth man. At trial, her testimony was that the police officer told her to look very closely at that person only when referring to number four, the defendant, and had not told her that regarding the other four participants in the line-up. In addition, she testified at trial that she identified the defendant only after she had seen all five of the participants in the line-up. The evidence also shows that the photographic line-up containing eight pictures showed seven of the subjects with shirts on and only one subject without a shirt and that subject was the defendant. The defendant was the only person whose picture was in the photographic line-up who also appeared in the corporeal line-up.

While we consider that the pretrial identification procedure was unnecessarily suggestive, we do not consider that the evidence requires the reversal of the motion to suppress the pre-trial and in-court identifications. The test for admission of eyewitness identification when there has been an unnecessarily suggestive procedure is whether there was a very substantial likelihood of irreparable misidentification. In evaluating such a likelihood, the proper criteria are the opportunity of the victim to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of prior descriptions, the level of certainty of the witness at confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Grant v. State, 390 So.2d 341 (Fla.1980).

The evidence here shows that the witness had a good opportunity to view the criminal at the time of the crime in that she was initially attacked right under a street light, and her testimony was that she got a good look at the perpetrator’s face at that time, even though the actual sexual battery took place in a dark wooded area later. The beating took place over several minutes’ period of time, and the witness testified that she was able to get a good look at the face. She gave a description at that time, which, while not particularly thorough, was not shown at the pretrial hearing or at trial to be inaccurate as the description of the defendant. Only three days elapsed between the date of the crime and the confrontation and there was some testimony that the witness’ eyes were so puffy from the beating that she may not have been able to see prior to that third day. In fact, she testified that the reason she was unable to pick anyone out of the photographic lineup was that she was not able to see clearly.

Accordingly, although the circumstances of the photographic and pre-trial corporeal line-up, accompanied as they were with the victim’s own contradictory testimony concerning the occurrences, are a cause of great concern, we cannot say that the trial court erred in allowing the identification testimony.

II

As a second issue, appellant challenges the denial of the motion for new trial. Although he concedes that there was sufficient evidence to support the conviction, he urges that under Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff’d.,-U.S.-, 102 S.Ct. 2211, 72 L.Ed.2d 652, the trial judge should have granted a new trial because the verdict was contrary to the weight of the evidence. We agree that Tibbs allows the grant of a new trial based on the weight of the evidence. We further agree that the evidence in this case was weak. There was no evidence pointing to appellant except the eyewitness identification. Appellant’s wife’s alibi testimony was unrefuted, and the physical evidence taken by the medical examiner was inconclusive. Furthermore, there was evidence that defendant was at the time of the arrest suffering from an advanced case of gonorrhea and that the disease was at such a stage that the doctor testified that it was extremely unlikely that a woman who had intercourse with him would not herself develop gonorrhea. It was not impossible, however, and the fact that the victim did not ever develop a case of gonorrhea is not dispositive. The Florida Supreme Court in its opinion in Tibbs v. State said:

Henceforth, no appellate court should reverse a conviction or judgment on the ground that the weight of the evidence is tenuous or insubstantial.
# S{S * * Sfc if!
Considerations of policy support, if not dictate, this result. Elimination of the third category of reversals accords Florida appellate courts their proper role in examining the sufficiency of the evidence, while leaving questions of weight for resolution only before the trier of fact.

Although the motion for new trial raised the weight of the evidence issue, the order denying the motion is worded in such a way as to indicate the trial court may have limited itself to the sufficiency of evidence standard. We further note that the ruling was entered prior to the Florida Supreme Court’s Tibbs opinion. Accordingly, we reverse and remand this case with directions to the trial judge to state whether his ruling on the motion for new trial was a ruling on the weight of the evidence as well as on the sufficiency. If he asserts that it was not, then he is directed to reconsider the motion on that basis.

HI

Finally, the appellant points out, and the state agrees, that the judgment and sentence misnames the offense of conviction as sexual battery with “great force.” If the conviction stands, the trial court is directed to amend the judgment and sentence to show the offense as sexual battery of a person over eleven (11) years of age by the use of physical force and violence likely to cause serious personal injury. ■

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

ROBERT P. SMITH, Jr., C. J., and McCORD and MILLS, JJ., concur.


text:
    Wesley Owen CLAYTON, Appellant, v. STATE of Florida, Appellee.
    No. AG-447.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1982.
    Michael Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    No appearance for appellee.
   PER CURIAM.

The judgment and sentence appealed from are affirmed, without prejudice to appellant’s right to assert the matters raised in his brief on motion in the trial court pursuant to Rule 3.800(b), Florida Rules of Criminal Procedure.

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    Aron Sylvester STEWART, Appellant, v. STATE of Florida, Appellee.
    No. AH-I55.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1982.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The judgment of conviction is affirmed without prejudice to appellant’s right to file a 3.850 motion to correct the sentence.

MILLS, BOOTH and THOMPSON, JJ., concur.


author: McCORD, Judge.

text:
    Billy Joe PETERS, Appellant, v. RCA INTERNATIONAL SERVICE CORPORATION and Travelers Insurance Company, Appellees.
    No. AH-183.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1982.

      J. Daniel Ennis of Ennis & Northcutt, Indian Harbor Beach, for appellant.
    Robert G. Brightman, Orlando, for appel-lees.
   McCORD, Judge.

Carol Peters, the widow of Billy Joe Peters, initiated this action seeking death benefits under the Florida Workers’ Compensation law. She appeals the deputy commissioner’s finding that he did not have jurisdiction to hear her claim because jurisdiction of the claim is under the Defense Base Act (42 U.S.C. § 1651), and jurisdiction under that act is sole and exclusive. We affirm.

On appeal, Mrs. Peters makes no assertion that this claim is not covered under the Defense Base Act. She argues that concurrent jurisdiction exists in the state and federal courts in this case. However, the wording of the Defense Base Act, as recognized in Flying Tiger Lines, Inc. v. Landy, 370 F.2d 46 (9th Cir. 1966), establishes that liability under that act “shall be exclusive and in place of all other liability . . . under the workmen’s compensation law of any state, territory or other jurisdiction ...” 42 U.S.C. § 1651(c). Further, Section 440.-09(2), Florida Statutes, specifically excludes from coverage under Chapter 440 any employee covered by the Federal Employers’ Liability Act, the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), or the Jones Act. The Defense Base Act provides that the provisions of the LHWCA shall apply to the injury or death of any employee covered under the act, except as modified in the act. 42 U.S.C. § 1651(a). As an extension of the LHWCA, the Defense Base Act is subject to the Section 440.09(2) exclusion.

AFFIRMED.

ERVIN and JOANOS, JJ., concur.


text:
    Harold James STEARNS, Appellant, v. STATE of Florida, Appellee.
    No. AI-74.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1982.
    David J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Bandi, 338 So.2d 75 (Fla. 4th DCA 1976), and State v. McGregor, 409 So.2d 504 (Fla. 4th DCA 1982).

McCORD, ERVIN and JOANOS, JJ., concur.


author: WIGGINTON, Judge.

text:
    PEACE RIVER ELECTRIC CORP. and Employers Insurance of Wausau, Appellants, v. David Cline CHOATE, Appellee.
    No. AI-332.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1982.
    Ivan Matusek, St. Petersburg, for appellants.
    Richard A. Kupfer, of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellee.
   WIGGINTON, Judge.

To forestall what appears to be an incipient creeping of hybrid case law into the field of workers’ compensation, this Court has grown increasingly more reticent to recite facts that would lend themselves as a potent source of fertilizer to nurture budding compensation disputes. Nevertheless, despite the risk that we may be plowing fertile grounds for litigious seed, we are strongly impelled to set forth our holding today as we affirm the deputy commissioner’s order. The circumstances of this case are unique and fraught with human misery, and we caution that this opinion should not be loosely interpreted by practitioners in the workers’ compensation field.

Claimant was left a paraplegic and confined to a wheelchair as a result of a com-pensable industrial accident in 1975. He had worked as a lineman for Peace River Electric Corporation for eighteen years, and was working in that capacity on the day of the accident when he fell fifteen feet from a power pole to land on his back on a protruding pedestal stub. He is now fifty-seven years old.

Claimant was accepted as permanently and totally disabled. He has lost all sensation and control from his waist downward, including control over bowel and bladder functions. There is no prospect for improvement. The carrier acknowledges that some form of special housing accommodations are required for Choate.

Claimant is presently existing by himself in a dilapidated makeshift dwelling consisting of an ancient trailer and a ramshackle wooden shed that are difficult or impossible to negotiate by wheelchair. Pursuant to his claim, the deputy awarded claimant an “Enabler II” modular home, specifically designed as a wheelchair-accessible environment. All title and right of ownership would remain in the carrier but claimant would be entitled to live in the home rent free. Major maintenance would be the responsibility of the carrier. Additionally, the carrier would provide adequate insurance, while claimant assumed liability for all real estate taxes and assessments on the property. In the event claimant failed to pay such taxes and assessments and they became a lien on the property, the carrier would pay them and be entitled to deduct the same from the permanent disability benefits being paid to claimant. Finally, in the event of claimant’s voluntarily electing other housing, or upon his death, the carrier would have the right to enter upon the premises and remove the modular home.

The employer/carrier contend the deputy should have accepted their suggested alternative of remodeling claimant’s existing dwelling. It is patently clear from the record, however, that nothing short of bulldozing the dwelling would serve to remedy the situation. The deputy did not abuse his discretion in awarding Choate use of the modular home. Clearly, claimant has presented a “set of extremely unique circumstances” combined with a “request for highly extraordinary relief” allowing his cause to fall within the narrow prescripts enunciated in this Court’s decision in Haga v. Clay Hyder Trucking Lines, 397 So.2d 428 (Fla. 1st DCA 1981).

Again, we caution that only extreme cases of disability might warrant such extraordinary relief. The order of the deputy commissioner is hereby affirmed.

SHIVERS and SHAW, JJ., concur.


text:
    MANNA PROVISIONS COMPANY, a Florida corporation, Appellant, v. Ted BLUME, a/k/a Theodore Blume and Ethel O. Blume, as co-partners d/b/a Central Florida Wholesale, Appellees.
    No. AK-304.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1982.
    Daniel F. Hubsch of Hubsch & Aguilar, P. A., Jacksonville, for appellant.
    John London Arnold, Jacksonville, for ap-pellees.
   PER CURIAM.

We have before us an appeal from a trial court order transferring venue of the present action from Duval County, Florida, to Orange County, Florida. The appeal is sua sponte dismissed.

The order transferring venue was rendered January 19, 1982. Appellant then had 30 days within which to file its notice of appeal to this court. Fla.R.App.P. 9.130(b). Instead, appellant filed a Motion to Change Order of Transfer of Venue to Denial of Motion to Transfer Venue or to Make Venue an Issue for Trial, which essentially amounted to a motion for rehearing on the order granting the venue change. This motion was denied by the trial court on February 12, 1982. Thereafter, on March 10, 1982, appellant filed this appeal.

A motion for rehearing directed to an interlocutory order changing venue is not authorized under the rules of practice. Fla. R.Civ.P. 1.530(a), (b); Home News Publishing Company v. U-M Publishing, Inc., 246 So.2d 117 (Fla. 1st DCA 1971). Thus, Appellant’s Motion to Change Order of Transfer of Venue, etc., did not toll the running of time for seeking review of the order transferring venue. See Fla.R.App.P. 9.020(g); Home News Publishing, supra. This appeal challenging the correctness of the trial court’s transfer of this cause to Orange County was, therefore, untimely filed, 50 days after rendition of the order transferring venue, and is accordingly

DISMISSED.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    Douglas BRISCO, Appellant, v. STATE of Florida, Appellee.
    No. 82-114.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 1982.
    Jerry Hill, Public Defender, Bartow, and Rick Dalan, Asst. Public Defender, Clear-water, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Upon the review of the briefs and record on appeal, we find that the appellant has failed to demonstrate any reversible error; therefore, the revocation of appellant’s probation is affirmed. However, the order revoking appellant’s probation did not recite which condition or conditions of the appellant’s probation were violated. This should have been done. Sing Eng v. State, 350 So.2d 559 (Fla. 2d DCA 1977); Dunlap v. State, 405 So.2d 796 (Fla. 2d DCA 1981).

Additionally, in adjudicating the appellant guilty the trial court retained jurisdiction over one-third of the appellant’s sentence. Section 947.16(3)(a), Florida Statutes (1981), requires that a trial court must state the reasons for retaining jurisdiction over an individual and make the justification part of the court record. A trial judge must state with particularity the justification for retention of jurisdiction before such a retention can be made. Sanders v. State, 400 So.2d 1015 (Fla. 2d DCA 1981). The trial court failed to make findings of facts supporting retention of jurisdiction a part of the record.

Accordingly, we remand for correction of the written order to include those specific conditions which were found to have been violated by the trial court. Furthermore, this case is remanded to the trial court with instructions to either relinquish the retention of jurisdiction over the one-third of the appellant’s sentence or to make findings of fact and justification, with individual particularity, to justify the retention of jurisdiction.

OTT, C. J., and HOBSON and RYDER, JJ., concur.


author: MILLS, Judge.

text:
    James BARNETT, Appellant, v. LAKELAND CONSTRUCTION COMPANY and United States Fidelity & Guaranty, Appellee.
    No. AD-435.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1982.
    Mark P. Kelly of Freeman & Lopez, P. A., Tampa, for appellant.
    Susan R. Whaley of MacFarlane, Ferguson, Allison & Kelly, Tallahassee, and W. James Kelly, Lakeland, for appellee.
   MILLS, Judge.

Barnett appeals a deputy commissioner’s order denying workers’ compensation. We affirm.

Barnett presented evidence of a compen-sable accident at the hearing. However, due to various inconsistencies, the deputy commissioner refused to believe the evidence and denied compensation.

Barnett contends that the deputy commissioner erred in refusing to apply the “logical cause” doctrine because the employer/carrier presented no contradictory evidence. He also contends that the deputy commissioner was not free to disbelieve the evidence in the absence of other evidence tending to show that the injury could have been attributable to an event which occurred on an earlier date. Tatum v. Leon Moss Dairy, 339 So.2d 639 (Fla.1976). We disagree. Tatum does not require such a showing; rather, Tatum simply addressed itself to a situation where such evidence was present.

As the deputy commissioner had the opportunity to observe the behavior and demeanor of Barnett and his witnesses, he is in a better position to judge their credibility. This court will not reweigh the evidence.

AFFIRMED.

BOOTH and THOMPSON, JJ., concur.


text:
    George S. CHRISS, Appellant/Petitioner, v. Sara P. CHRISS, Appellee/Respondent.
    Nos. AG-307, AL-31.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1982.
    Tyrie A. Boyer of Boyer, Tanzler, Blackburn, Boyer & Nichols, Jacksonville, for appellant/ petitioner.
    James G. Roberts, Jacksonville, for appel-lee/respondent.
   McCORD, Judge.

We consolidate for review the above appeal from non-final order entered after final order and the petition for writ of common law certiorari. The non-final order denied a motion of George S. Chriss (hereinafter referred to as George) to intervene and denied an amended motion of George to vacate and set aside an order appointing guardian. The order also granted the motion of the guardian, Sara P. Chriss (hereinafter referred to as Sara) for rule to show cause directed to George and directed that he forthwith deliver to Sara certain assets previously provided by George and held in trust by him for Julia, the daughter of George and Sara.

The petition for writ of certiorari seeks review of a subsequent order in the same proceeding which required George to post a bond in the amount of $210,000, conditioned, among other things, to comply with the orders of the court and to not spend, waste, transfer, assign, pledge or dispose of any of the previously referred to assets without further order of the court. We reverse the order appealed and quash the order setting bond and all other orders entered subsequent to the order appealed.

George and Sara are the divorced parents of 22-year-old Julia, whom the record indicates is mentally retarded. Pursuant to the dissolution agreement, George holds assets for Julia and the other children in a custodial or trustee capacity, which funds have not been available to Sara. In May 1981 Julia petitioned the circuit court to appoint her mother, Sara, as guardian of her estate, pursuant to Section 744.341, Florida Statutes (1981). The trial court granted the petition naming Sara guardian and issued letters of guardianship to Sara. No notice of the proceeding was given to George. (None was required by Section 744.341 unless requested by the ward.)

Approximately one month later, George filed an amended motion to vacate and set aside the order appointing guardian and alternatively requested that either he and Sara be appointed co-guardians of Julia’s property or that the court appoint a financial institution (approved by the court) as such guardian. The trial court (a different judge than the judge who entered the guardianship order) thereafter entered the non-final order denying intervention by George, denying George’s amended motion to vacate and set aside the order appointing guardian and directing George to forthwith deliver possession of the assets held by him to guardian Sara. Among other findings, the trial court found that the petition of Julia for voluntary guardianship complied with Section 744.341, Florida Statutes; that Sara is entitled to act in her capacity as guardian of Julia; and that George is not a party to the cause and has no standing before the court to attack the petition for voluntary guardianship. The court also stated in the order that it took judicial notice of the stipulation and final judgment of dissolution of marriage between George and Sara; that the stipulation stated as follows: “It is agreed by the parties that Julia Chriss is legally competent, but partially physically dependent on her parents.” The stipulation was not made part of the record in these proceedings, and the final judgment of dissolution does not recite the stipulation.

The record here reflects that Julia, who was of age when the final judgment of dissolution between her father and mother was entered, is mentally retarded to the extent that she has a social age of a 16 year old. The express language of the final judgment of dissolution provided that George would be the sole custodian or trustee of the children’s assets and that Sara would have no claim to those assets; that George would pay to Julia, out of the funds and assets on the first day of each month, the reasonable expenses for her clothing, medical, recreation and spending monies incurred in the previous month. We find that George, as the father of Julia and as the holder of assets of Julia, pursuant to the final judgment of dissolution of the marriage between George and Sara, had an interest in the subject matter and therefore standing to question the legality of the voluntary guardianship proceeding. Section 744.341, Florida Statutes, provides in pertinent part as follows:

(1) Without adjudication of incompetency, the court shall appoint a guardian of the estate of a resident or nonresident person who, though mentally competent, is incapable of the care, custody, and management of his estate by reason of age or physical Infirmity and who has voluntarily petitioned for the appointment. The petition shall be accompanied by a certificate of a licensed physician that he has examined the petitioner and that the petitioner is competent to understand the nature of the guardianship and his delegation of authority. Notice of hearing on any petition for appointment and for authority to act shall not be required, except that notice shall be given to the ward and to any person to whom the ward requests that notice be given. Such request may be made in the petition for appointment of guardian or in a subsequent written request for notice signed by the ward. (Emphasis supplied.)

The verified petition of Julia for voluntary guardianship contains the following allegation in Paragraph 4 thereof: “Petitioner, although mentally competent, is incapable of the care, custody and management of her estate by reason of physical infirmity.” Among other things, George’s amended motion to vacate and set aside the order appointing guardian contains the following allegations:

3.The allegations of paragraph 4 of the petition are untrue. Julia is incapable of the care, custody and management of her estate by reason of her mental incapacity rather than any reason of physical infirmity (as alleged in the petition). In the opinion of Drs. Sternthal and Anthony (as stated in attached Exhibits A and B, respectively), Julia is mentally retarded.
4. Julia is mentally retarded to the extent that she is incompetent to understand the nature of the guardianship and her delegation of authority.
5. By reason of her mental retardation, Julia is susceptible to undue influence, especially from her mother; and the petitioner believes that Sara P. Chriss unduly influenced Julia to file her petition herein for reasons other than Julia’s best interest and economic welfare.
6. Sara P. Chriss has no experience in investing, managing or controlling of funds other than the handling of her personal finances. Sara P. Chriss lacks the education, experience and training to qualify her to have the care, custody and management of Julia’s estate; the said Sara was employed exclusively as a secretary until 1958 and thereafter has been unemployed.

The proceeding for appointment of guardian was ex parte in nature since no notice was given to George. The order was perfunctory, simply reciting, “This cause came on to be heard on the verified Petition of Julia M. Chriss, a physically infirmed person, for appointment of her mother, Sara P. Chriss, as guardian of the property of the said Julia M. Chriss and Julia M. Chriss having appeared before this court and giving her testimony with regard thereto, it is .... ” The order does not make a specific finding or adjudication that Julia, though mentally competent, is incapable of the care, custody, and management of her estate by reason of age or physical infirmity. The letter of a medical doctor was attached to the petition for guardianship stating that, as a result of his examination, he feels that Julia “has a mild mental retardation (tested full-scale IQ 64) probably secondary to an Organic Brain Syndrome at birth but that she is mentally competent.” (Emphasis supplied.) He further stated his opinion that she was competent to understand the nature of the guardianship and its delegation of authority. He did not state or imply that she was in any way physically infirm. Julia’s father, George, who is also a medical doctor, filed an affidavit in support of his motion to intervene in which he swore that Julia “was not at the time of the filing of said petition or at the time of entry of the order appointing the guardian physically infirm.” He further stated in the affidavit that she was not at any time prior to the filing of the petition nor at any time thereafter physically infirm.

The trial court as aforesaid denied George’s motion to intervene and his amended motion to set aside the order appointing guardian. It appears from the order that the evidence upon which the trial court relied for denial was the stipulation in the dissolution proceeding that Julia was “legally competent, but partially physically dependent on her parents.” The words “partially physically dependent on her parents” do not necessarily mean that she has a physical infirmity.

Under the circumstances, it was an abuse of discretion for the trial court to deny George’s motion for intervention and to deny him an opportunity to prove his allegations that Julia has and had no physical infirmity which would allow the appointment of a guardian for her under § 744.341 and that Sara was and is not qualified to be guardian. The order denying George’s motion for intervention and his motion to set aside the order of guardianship is reversed. The trial court’s ruling on the motion to set aside the order of guardianship should be determined from the evidence presented at an evidentiary hearing. Certiorari is granted and all orders entered subsequent to the above-reversed order are moot and are, therefore, quashed.

Remanded for further proceedings consistent herewith.

ROBERT P. SMITH, Jr., C. J., and BOOTH, J., concur.

      . George contends that the trial court erred in taking judicial notice of the stipulation filed in another proceeding without making the record of that proceeding a part of the record in this cause. Section 90.202(6) provides that a court may take judicial notice of records of any court of this state. It does not appear in the record before us that George made a contemporaneous objection to the court taking judicial notice of the quoted part of the stipulation. He, therefore, cannot raise this question for the first time on appeal.