author: LETTS, Chief Judge.

text:
    STATE of Florida, Appellant, v. D.C.W., a child, Appellee.
    No. 81-1699.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Allen DeWeese, Asst. Public Defender, West Palm Beach, for appellee.
   LETTS, Chief Judge.

This appeal is brought by the state from an order granting a motion to dismiss because the petition alleging delinquency was not filed within 45 days from the date the child was first taken into custody. We agree with the state and reverse.

The instant child was originally taken into custody and indicted by a grand jury for burglary in the company of an armed unindicted co-defendant. Pursuant to Section 39.02(5)(c), Florida Statutes (1979), grand jury proceedings may be utilized to indict juveniles in adult court for crimes punishable by life imprisonment. This particular minor was allegedly an aider and abettor in an armed burglary and thus subject to a life sentence.

Subsequently the child filed a sworn motion to dismiss the “armed” portion of the charge which was duly granted, resulting in a reduction of the charge to mere second degree burglary. Thereafter the defense, continuing the chess game, filed a motion to have the case transferred to the juvenile division which was likewise granted. In a countermove the state immediately filed a petition for adjudication of delinquency whereupon the defense delivered the knock out blow and successfully moved to dismiss that petition because it had not been filed within 45 days after the child was first taken into custody. We are of the opinion that this final defense move should not have constituted checkmate.

The state legislature has seen fit to adopt a statute which permits juveniles to be tried as adults for more serious crimes. If in fact such serious charges are filed in good faith (and there is no suggestion otherwise in this case), it is inconceivable that the legislature envisaged the erring minor could get off scot-free if the charges later have to be reduced. He or she who is initially legally charged as an adult should not be simultaneously able to keep the meter running as a juvenile and we so held in our recent decision in Parr v. State, 415 So.2d 1353 (Fla. 4th DCA 1982).

In this case the criminal should be able to claim the protections afforded juveniles under the “speedy file” rule commencing at such time as that criminal is entitled to, or elects to, be treated as such. This particular child was clearly not entitled to all the protections afforded those of tender age prior to the order granting transfer to the juvenile division. Accordingly, we hold that in an instance such as this, the 45 day limitation is not activated until the accused ceases to be prosecuted as an adult and is transferred to the more charitable juvenile division.

While not on all fours, we recognize that this decision appears to be in conflict with State v. 408 So.2d 1063 (Fla. 1st DCA 1982), in which the First District held that the petition alleging delinquency must be filed within 45 days of a child being first taken into custody regardless of what else may transpire. Likewise our conclusion may conflict with T.R. v. State, 364 So.2d 100 (Fla. 1st DCA 1978), also from the same court.

In thus disagreeing with the First District, we are far from scornful of these two holdings. Indeed, a literal interpretation of the 45 day statutory provision might appear to support our sister court’s conclusions. However, it does not comport with our version of common sense for a defendant to be able to seek treatment as a juvenile, obtain it and then take advantage of his or her successful invocation of the more charitable method of dispensing justice and subvert it altogether to escape the consequences of his or her conduct. To repeat Judge Schwartz’ by now famous quote, we will not countenance such “gotcha” manoeuvres.

REVERSED and REMANDED.

DOWNEY and HURLEY, JJ., concur.

      . Not raised by the defense is the intriguing question of whether an appeal is available in a situation such as this. See, State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA 1982). As a consequence we make no such determination here. Suffice it to say that we would accept jurisdiction in any event and if necessary treat the matter as a petition for certiorari.

      . We regret this Parr case was not pointed out to us by notice of intention to rely. It certainly should have been.

      . We note the Second District also appears to agree with us. See State v. Puckett, 384 So.2d 660 (Fla. 2d DCA 1980).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Torrey Lynn EISENHUT, in the interest of Kimberly Lynn Eisenhut, Wynne Dee Eisenhut and Britton Cole Eisenhut, minor children, and Nancy Belinda Eisenhut, Appellants, v. Marion S. COLE and Howard C. Cole, Appellees.
    No. ZZ-219.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1982.
    Rehearing Denied March 4, 1983.
    John P. Townsend of Selby, Chesser, Wingard & Barr, Fort Walton Beach, for appellants.
    William K. Jennings of Miller & Jennings, Fort Walton Beach, for appellees.
   PER CURIAM.

This cause is remanded to the trial judge for reconsideration in light of our recent decision in Ruyle v. Murphy, 422 So.2d 318 (Fla. 1st DCA 1982).

ERVIN, BOOTH and THOMPSON, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Rosanne GMUER, Appellant, v. Ambrose GARNER, individually and as President of Hillsborough Community College; The District Board of Trustees of Hillsborough Community College, Florida, a corporate body public; Colleen L. Bevis, as Chairperson of the Board of Trustees; Ron Cacciatore, E.L. Bing, Julia B. Williams, B. Lee Elam, Hillman Bowden, and Jerry Harvey, as Trustees, Appellees.
    No. 81-2348.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1982.
    Rehearing Denied Feb. 21, 1983.
    Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, Tampa, for appellant.
    Richard Candelora and Marvin E. Barkin, of Trenam, Simmons, Kemker, Scharf, Bar-kin, Frye & O’Neill, and W. Reynolds Allen of Hogg, Allen, Ryce, Norton & Blue, Tampa, for appellee Ambrose Garner.
    John M. Breckenridge, Jr. and Marian P. McCulloch, of Greene, Mann, Rowe, Stanton, Mastry & Burton, Tampa, for appellee Board of Trustees of Hillsborough Community College.
   PER CURIAM.

We affirm the trial court’s order dismissing appellant Rosanne Gmuer’s third amended complaint against appellees Am-brose Garner and Hillsborough Community College with prejudice. The trial court has ably set forth its findings and followed the applicable case law in support thereof, and we adopt its order as our opinion. The pertinent portions of that order read as follows:

Each and every count of plaintiffs Third Amended Complaint is founded upon allegations of sexually seductive invitations to plaintiff from defendant Garner. These so-called “propositions” occurred, plaintiff says, while: She was employed by Hillsborough Community College and Gamer was President and at a time when the Trustees of the College should have known of Dr. Garner’s alleged propensities for lusting after those of the opposite sex in positions as plaintiff, to paraphrase the gravamen of plaintiffs causes of action. None of the allegations against the principal tort reasor [sic] involve a “touching” or any form of battery. They are limited to the use of offensively suggestive and opprobrious words directed, it is alleged, to plaintiff by her superior on the job. Plaintiffs declination of the proposition or propositions is alleged to have resulted in the loss of her job. This Court is asked by plaintiff to find that plaintiffs cause of action should be sustained principally on the thesis that the defendant Garner’s actions, if true, support a claim for intentional infliction of emotional distress.
... [T]his Court is persuaded that the tort upon which the Third Amended Complaint is constructed is not recognized in Florida.
The tort of intentional infliction of emotional distress had its genesis in the Restatement of Torts, 2d, Sec. 46. It has been applied in Florida but the District Courts confronted with the question appear to be divided. In Ford Motor Credit Co. v. Sheehan [Fla.App.], 373 So.2d 956, the First District Court found that a debtor was warranted in suing his creditor for making a deliberately false report that the debtor’s children had been in a serious automobile accident. On those facts, it was held that an independent tort for outrageous conduct of such a flagrant and indecent character could be maintained by the party in position of the debtor claiming severe emotional distress. The question was subsequently certified to the Supreme Court.
On the other hand, the Third District Court has seemingly rejected the doctrine in Gellert v. Eastern Airlines [Fla.App.], 370 So.2d 802. In Gellert, the Third District Court adhered to doctrinal law going back to Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950) that intentional infliction of emotional distress is not actionable “when not incident to or connected with an independent tort.”
In this case, there was no independent tort. There were words having a commonly understood meaning which were insulting to the plaintiff, and her refusal to respond to the invitations in a positive way are alleged to have brought about the non-renewal [sic] of her contract of employment.
Of course, this Court has already dismissed the count for wrongful termination of employment. That event, therefore, cannot be the basis for an independent tort. Daniel v. Magma Copper, 620 P.2d 699, 127 Ariz. 320 (1980); Novosel v. Sears Roebuck, 495 F.Supp. 344 (1980); M.B.M. Co. v. Counce [268 Ark. 269] 596 S.W.2d 681.
Mere words (or threats) alone do not constitute an assault, even though they may put another in apprehension of immediate injury or offensive contract [sic]. 3 Fla.Jur. Assault & Battery, Sec. 5; Gelhaus v. Eastern Airlines [5th Cir.], 194 F.2d 774.
The reasoning of the Gellert court and the earlier cases undergirding it impress this Court as expressive of the soundest and best rule. The Sheehan case does not really present a conflict on a close reading. Sheehan’s cause of action was sustained on a pure application of Section 46 of the Restatement. There, the allegations of the creditor’s misconduct were so patently outrageous and repugnant as to support a cause of action on essentially the same criteria applied in Gellert.
This Court has the burden of determining, in the first instance, whether defendant Garner’s behavior would, if true, be reasonably regarded as so extreme and outrageous as to permit recovery even under the more liberal test approved by the Sheehan court. It is the view of this Court, however, that whether one selects the criteria of Sheehan or of Gellert, the results are the same.
The obnoxious and socially odious words and suggestions allegedly coming from defendant Garner, if true, were nevertheless without physical contact or threat of bodily harm to plaintiff. The declination to extend her employment contract has no legal significance as none of the defendants were legally obligated to do so. That event and the other consequences complained of are found to be insufficient as a matter of law to state grounds for relief under existing law. The remaining counts of the Third Amended Complaint also fall in view of this Court’s ruling that the underpinnings of the case are vulnerable to the motion to dismiss.
Plaintiff may not be without remedy. At the Federal level, there are a spate of recent cases sustaining claims against employers on pleading and proof of sexual discrimination, including demeaning sexual propositions to female employees from superiors on the job, e.g. Barnes v. Costle [D.C.Cir.], 561 F.2d 983; Bundy v. Jackson [D.C.Cir.], 641 F.2d 934. The cases just cited involve federal employees, but other provisions of the Civil Rights Act are believed to extend the same requirements to private, non-federal [sic] employers as well.

In addition, we would specifically point out that since, as the trial court correctly explained, appellant has not stated a cause of action against Garner, see also Forde v. Royal’s, Inc., 537 F.Supp. 1173 (S.D.Fla.1982) (holding that sexual harassment does not constitute intentional infliction of emotional distress under Florida law), she has ipso facto not alleged a cause of action against Hillsborough Community College. In order to impose liability on an employer for negligent hiring or retention of an employee, the plaintiff must first establish liability on the part of the employee by virtue of the employee’s wrongful act against the plaintiff. Texas Skaggs, Inc. v. Joannides, 372 So.2d 985 (Fla. 2d DCA 1979), cert. denied, 381 So.2d 767 (Fla.1980).

Accordingly, the trial court’s order dismissing appellant’s third amended complaint with prejudice is AFFIRMED.

BOARDMAN, A.C.J., and RYDER and DANAHY, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Upon reflection, we have come to the conclusion that this case presents questions which this court should certify to the Supreme Court of Florida as questions of great public importance.

The trial judge in this case made two determinations, which we have approved. First, the trial judge found that Florida does not recognize the tort of intentional infliction of emotional distress as defined in Restatement (2nd) of Torts, section 46 (1965). In so ruling, the trial judge found no conflict between the decisions in Gellert v. Eastern Airlines, 370 So.2d 802 (Fla. 3d DCA 1979), and Ford Motor Credit Co. v. Sheehan, 373 So.2d 956 (Fla. 1st DCA 1979). In Gellert, the court held that there can be no recovery in Florida for the intentional infliction of severe mental distress when not incident to or predicated upon a separate actionable tortious wrong. The court in Sheehan seemed to hold to the contrary. The Sheehan court certified the question to the supreme court as a question of great public interest, but the question went unanswered because the supreme court dismissed certiorari review in that case. Ford Motor Credit Co. v. Sheehan, 379 So.2d 204 (Fla. 1979). We note the Fifth District Court of Appeal has indicated that it agrees with the decision in Sheehan. Food Fair, Inc. v. Anderson, 382 So.2d 150 (Fla. 5th DCA 1980).

It appears that the majority of jurisdictions recognize the principle that there can be recovery for intentionally inflicted severe emotional distress in some circumstances. Givelber, The Right to Minimum Social Decency and the Limits of Even-handedness: Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 Colum.L.Rev. 42, 43 (1982). The author of that article cites Ford Motor Credit Co. v. Sheehan and Gellert v. Eastern Airlines as conflicting decisions, placing Florida in the category of jurisdictions which are split on the question whether section 46 of the Restatement should be adopted. Id. at 44 n. 9. Decisions of the federal courts reflect uncertainty as to whether Florida has recognized such a tort. E.g., Mundy v. Southern Bell Telephone & Telegraph Co., 676 F.2d 503 (11th Cir.1982); Forde v. Royal’s, Inc., 537 F.Supp. 1173 (S.D.Fla.1982). We believe we should ask our supreme court to resolve the question.

But the trial judge went further and made a determination that appellee Garner’s behavior as alleged in appellant’s complaint, if true, could not reasonably be regarded as so extreme and outrageous as to permit recovery under the “liberal” test approved by the court in the Sheehan case — despite the fact that the trial judge categorized appellee Garner’s words and behavior as offensively suggestive and opprobrious, having a commonly understood meaning which was insulting to appellant, and as obnoxious and socially odious. We believe that, if Florida is to recognize the so-called tort of outrage, our supreme court should clarify the role of the trial judge in making a determination on the pleadings whether conduct is so egregious as to be actionable.

Accordingly, we grant appellant’s motion for rehearing and clarification to the extent of certifying the following questions to the Supreme Court of Florida as questions having great public importance:

1. MAY ONE RECOVER DAMAGES FOR INTENTIONAL INFLICTION OF SEVERE MENTAL DISTRESS WHICH IS NOT INCIDENTAL TO OR CONSEQUENT UPON ANY SEPARATE TORT OR OTHER ACTIONABLE WRONG?
2. IF SUCH DAMAGES ARE RECOVERABLE, IS IT APPROPRIATE FOR A TRIAL JUDGE TO DETERMINE ON THE PLEADINGS WHETHER THE CONDUCT ALLEGED IS OUTRAGEOUS AND THUS ACTIONABLE, OR IS THIS A QUESTION WHICH MUST BE DETERMINED BY THE FACT FINDER?

The Motion for Rehearing is otherwise DENIED.

BOARDMAN, A.C.J., and RYDER and DANAHY, JJ., concur.


author: SMITH, McFERRIN, Associate Judge.

text:
    In re The Marriage of Eleanor W. ROSE, Appellant/Cross-Appellee, v. Walter T. ROSE, Jr., Appellee/Cross-Appellant.
    No. 82-297.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1982.
    Rehearing Denied Feb. 11, 1983.

      George E. Adams of Adams & Hill, Orlando, for appellant/cross-appellee.
    Walter T. Rose, Jr., of Rose & Weller, Cocoa Beach, pro se.
   SMITH, McFERRIN, Associate Judge.

This case is an appeal and cross-appeal from a final judgment of the Circuit Court of the 18th Judicial Circuit modifying alimony and child support. For the reasons stated below we affirm in part, reverse in part, and remand for further proceedings.

On September 12, 1977, a final judgment of dissolution was entered dissolving the marriage of the appellant (wife) and appel-lee (husband). The appellant was awarded custody of the parties’ three minor children, $300 per month per child as child support, and $2,550 per month as alimony. Other assets were divided between the parties.

In 1981 the husband moved to modify the final judgment to terminate the award of alimony. The wife counterclaimed, seeking an increase in alimony and the payment of costs and attorney’s fees.

In its order dated February 3, 1982 the trial court found a substantial change in circumstances since the entry of the 1977 final judgment of dissolution. The Court ordered a gradual reduction of alimony over a three year period, beginning with an immediate reduction to $1,275 per month. Other reductions were to follow with all alimony terminated after January 15, 1985.

The trial court next increased the award of child support for the one remaining minor child to $600 per month and ordered that this child support would continue until the child reached the age of 21, if the child were enrolled in an institution of higher learning and satisfactorily seeking a college degree.

The Court also ordered the husband to contribute $4,000 toward the wife’s attorney’s fee.

Upon a careful examination of the record we find sufficient evidence to support the trial court’s finding of substantially changed circumstances. As to the award of alimony we cannot determine what the trial court found. We know only that the trial court immediately reduced the payment of alimony to $1,275 per month and terminated all alimony after January 15, 1985.

The record in this case contains a sufficient factual basis for the trial court to reduce alimony to $1,275 per month or to terminate all alimony. However, we can find nothing in the record to justify the gradual reduction which was ordered.

The Courts of this state have generally disapproved this process of gradual reductions in alimony unless specific reasons for the reductions appear in the record. See Garrison v. Garrison, 380 So.2d 473 (Fla. 4th DCA 1980); DeVito v. DeVito, 393 So.2d 1189 (Fla. 3d DCA 1981); Cooley v. Cooley, 409 So.2d 533 (Fla. 4th DCA 1982).

We agree with the 3rd and 4th Districts on this point and reverse that portion of the order which awards gradually decreasing alimony.

Upon remand, the trial court may exercise its discretion in either terminating alimony or in awarding alimony in an amount of $1,275 or less per month.

Although the trial court’s order extending child support past the child’s age of majority appears to be without legal authority, appellee did not preserve the point for appeal and we, therefore, must allow that order to stand.

The remaining points argued are without merit and do not require reversal. Appellant’s Motion for Attorney’s Fees is granted and remanded to the trial court for determination of the amount appellee should contribute toward those fees.

AFFIRMED in part, REVERSED in part and REMANDED.

COBB and SHARP, JJ., concur.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Peter CRISTODERO, John James Rossi, and William Peter O’Donnell, Appellees.
    No. 82-102.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearings Denied March 11, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellees-Rossi and Cristodero.
    Robert C. Stone and Craig K. Satchell of Stone, Dell & Schaefer, P.A., Hollywood, for appellee-O’Donnell.
   DOWNEY, Judge.

The State seeks reversal of an order dismissing an information charging the appel-lees, Cristodero, Rossi, and O’Donnell, with conspiracy to traffic in cannabis and also charging appellee Rossi with possession of a firearm while engaged in a criminal offense.

The uncontroverted facts are set forth in the orders appealed from. Paraphrased, the facts are that a Fort Lauderdale police officer, Kotrady, while in New York, met appellee Cristodero. During a conversation about Fort Lauderdale, Cristodero inquired about the price of marijuana in Fort Laud-erdale. Cristodero advised Kotrady that he went to Fort Lauderdale from time to time and bought a truck load of marijuana. Ko-trady gave Cristodero his number and some months later Cristodero called him inquiring about the possibility of a drug buy. Negotiations between the two ensued and a meeting was arranged at a local restaurant. During the meeting, Cristodero requested that Kotrady add ten cents a pound to the asking price without Cristodero’s partners’ knowledge, so that Cristodero could make a little extra on the deal. The following day they met again and Cristodero introduced Kotrady to appellees Rossi and O’Donnell. Kotrady advised them he had a bale of marijuana in the trunk of his car; so the group repaired to Kotrady’s car to view the sample bale of marijuana. There, they discussed the product and possible future drug deals. Arrangements were then made to meet at another restaurant to consummate the deal. At the appointed time, after the arrival of Kotrady and another undercover agent, Cristodero arrived driving a van, which he parked next to Kotrady’s vehicle. Shortly thereafter, a Cadillac arrived bearing Rossi and O’Donnell. Kotrady advised them he had the load of marijuana but wanted to see the money. At O’Donnell’s direction, Rossi opened the Cadillac trunk by a button inside the car and O’Donnell showed the officers a suitcase containing $240,000. After a second viewing of the money by the other agent, who allegedly was the real seller, a signal was given to the back-up team of officers and they moved in and arrested appellees.

Motions to dismiss were filed by Rossi and O’Donnell contending that the material facts upon which the prosecution was based were not in dispute and those facts did not prove a prima facie case of guilt. Cristode-ro’s motion did not assert this ground, but contained other alleged deficiencies in the information. A hearing on said motions resulted in the order under review. The trial court ruled that, upon authority of King v. State, 104 So.2d 730 (Fla.1958), and State v. Brandon, 399 So.2d 459 (Fla. 2d DCA 1981), the uncontroverted facts were insufficient to convict appellees. We, of course, cannot quarrel with the holding in King because it is a determination by our Supreme Court, albeit a four to three decision. However, we are convinced that reliance on that case by appellees and the trial court is misplaced. We are of the view that the factual situation presented herein renders the King rule inapplicable.

Two of the subsequent cases analyzing the holding in King are relevant to the present case and, at the risk of tedium, we will quote generously therefrom.

In the King case, three police officers of the City of Miami, King, Carberry, and Monroe, were charged with conspiring with Moscovitz and with one another to violate statutes relating to the unlawful keeping or maintaining a place for the purpose of gambling and bookmaking. The information alleged that the defendants planned to set up Moscovitz in the business of illegal bookmaking in a hotel room and that the defendants would protect Moscovitz from arrest for all of which Moscovitz would compensate them. The evidence showed that the violations of the gambling laws alleged in the information were to be committed by law enforcement agent Moscovitz, not by defendants. A jury found King and Monroe guilty, but on certiorari the Supreme Court of Florida reversed. The Court pointed out that the defendants were not charged with conspiracy to accept unlawful compensation; they were charged with eon-spiring to violate the state gambling laws but the proof showed that the agreement was that Moscovitz alone, not the defendants, was to commit the crimes. More importantly, the evidence did not support the charge that the defendants conspired with each other to commit the gambling offenses. Therefore, the Court held the convictions invalid, stating:

We hold, therefore, with what appears to be the weight of, if not the only, authority, that where two or more persons conspire with another who is, unknown to them, a government agent acting in the line of duty, to commit an offense under an agreement and an intention that an essential ingredient of the offense is to be performed by, and only by, such government agent, such persons may not legally be convicted of a conspiracy. 104 So.2d at 733.

The Second District Court of Appeal, in State v. Brandon, 399 So.2d 459 (Fla. 2d DCA 1981), had occasion to analyze the King case in the following fashion:

In King, the facts reveal that almost all of the criminal activity was performed by the police agent. The agent agreed to commit the offense of gambling and bookmaking; to keep and maintain the hotel room with public funds; and to provide protection money for the corrupt police with public funds. The court noted that although the information charged that the defendants conspired with each other as well as with the police agent to commit the offenses, the evidence did not support that charge. Rather, the agreement and the intention proved by the State was that the police agent would commit the offenses. Since the agent’s participation was an integral part of the plan, without his complicity the conspiracy was not proven. The court cited with approval the case of Woo Wai v. United States, 223 F. 412 (9th Cir.1915), in which a conviction of two persons who conspired with a government agent was reversed. That court stated:
If no violation of the law was to be accomplished by the act of the defendants, it follows that they could not be held for conspiracy to do that act.
Thus, the King court set out the rule that a conspiracy conviction against two or more persons cannot result where the proof shows that some essential ingredient of the substantive crime was performed by, and only by, a government agent acting in the line of duty. 399 So.2d at 461-462 (footnote omitted.)

In McCain v. State, 390 So.2d 779 (Fla. 3rd DCA 1980), the Third District Court of Appeal saw King as distinguishing between a factual situation where two defendants did not conspire with one another but only with the government agent, and one in which the defendants also conspired with each other. That court said of King:

Defendant’s remaining contention, that King v. State, 104 So.2d 730 (Fla.1959) requires reversal, must also fail. In King, the Florida Supreme Court reversed the conspiracy conviction of two defendants upon a finding that although they were charged with conspiring with each other and with a government agent to violate the gambling statutes, the only conspiracy shown by the evidence was a conspiracy with the agent. The government agent in King was to perform an act essential to the crime charged as the object of the conspiracy, and since there was no evidence tending to show that the defendants ever conspired with each other, the court reasoned that the convictions must be reversed. The natural conclusion reached was that there can be no conspiracy where one of the two conspirators lacks the requisite criminal intent; the court drawing a distinction between the situation in King and cases where there is evidence that the defendants conspired with one another as well as the government agent. 390 So.2d at 780.

In the present case, the gravamen of the substantive offense underlying the conspiracy was possession of cannabis. The essential elements of the crime of possession are knowledge of the presence of contraband and the ability to maintain control over it or reduce it to possession. The undisputed facts reflect that defendants came to the scene to gain possession for themselves of a load of cannabis in return for the $240,000. The possession involved in this conspiracy is not the possession of the seller-police agent, but the anticipated possession of the defendants. Therefore, they intended to and agreed with each other to commit all of the ingredients of the crime charged. Simply because the government agents were to deliver the cannabis to the defendants at the scene does not mean the police alone were to commit an essential element of the substantive crime. Rather, as in Brandon, supra, we hold that the government agents’ participation was tangential to the gravamen of the substantive offense charged. This clearly differentiates the present case from King. In order to prove the conspiracy here it is not necessary to prove the substantive crime was completed but only that the defendants intended to and agreed with each other to commit the offense of trafficking in marijuana. 16 Fla. Jur.2d, Criminal Law, § 1547. Furthermore, direct proof of the agreement is not necessary to establish the conspiracy; a jury is free to infer from all of the circumstances involved that there was a common purpose to commit the crime. As the court said in McCain, supra:

This court has previously considered the nature of proof necessary in a conspiracy case. As defendant points out, an agreement is the essential element of the crime of conspiracy. However, direct proof of an agreement is not necessary to establish a conspiracy; the jury is free to infer from all the circumstances surrounding and accompanying the act that the common purpose to commit the crime existed. State v. Lamb, 348 So.2d 403 (Fla. 3d DCA 1977). We have also held that it is not necessary to prove a specific conversation in which an agreement was made:
A person charged with a crime may be convicted solely on the basis of circumstantial evidence.... Proof of a formal agreement is not necessary to establish the existence of a conspiracy. ... Indeed it is well recognized that the existence of a conspiracy or confederation can and will be inferred from circumstantial evidence as indicative of an overall plan.
Borders v. State, 312 So.2d 247 (Fla. 3d DCA 1975), cert. denied 327 So.2d 31 (Fla.1976) (citations omitted). 390 So.2d at 780.

Accordingly, the orders appealed from are reversed and the case remanded for further proceedings.

REVERSED AND REMANDED with directions.

LETTS, C.J., and WALDEN, J., concur.


author: COWART, Judge.

text:
    EDGEWATER ENTERPRISES, INC., etc., Appellant, v. Roger W. HOLLER, Jr., Appellee.
    No. 81-1101.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1982.
    Rehearing Denied Feb. 11, 1983.

      Merritt H. Powell, Daytona Beach, for appellant.
    H. Charles Woerner, Jr., South Daytona, for appellee.
   COWART, Judge.

The issue in this case is whether a renewal provision in a lease, which specifies the length of the term of the renewal but leaves the amount of the monthly rental during the renewal period to be negotiated, is sufficiently definite to be legally enforceable.

The lease in question contained the following clause:

RENEWAL OF LEASE
16. Tenant shall have the option to take a renewal lease of the demised premises for the further term of three (3) years from and after the expiration of the term herein granted at a monthly rental to be arbitrated, negotiated and determined among the parties to this lease at said time.

In compliance with another provision of the lease, appellant-lessee timely notified appellee-lessor of the exercise of this option to renew. The parties’ negotiations as to the rental to be paid during the rental period were unsuccessful. The lessee filed a complaint for declaratory judgment seeking to have the trial court determine a reasonable rental for the renewal period and to specifically enforce the renewal provision. Lessor moved to dismiss on the ground that this renewal provision was too vague and too indefinite to be enforceable. The lessee appeals from an order granting that motion. We affirm.

Options to renew can be worded in various ways, but what may seem to be negligible semantic differences can have a dramatic difference in the construction the court places on the particular clause. Where the contract clause provides that the lessee shall have an option to renew for a specific period of time, but is silent as to all other terms, the clause has generally been held sufficiently definite to enforce and construed as encompassing the same terms and rent as the original lease. On the other end of the spectrum, where the option to renew sets out that the terms, period of time, and rent shall be as determined by the parties at the time of renewal, the clause has generally been considered so indefinite that it is unenforceable. However, where the option to renew specifies the period of renewal but specifically leaves the rent to be determined by the parties in the future without specifying the method to be used if the parties cannot agree, there is a recognized solid split of authority as to whether the clause is sufficiently definite enough to be enforceable. Some jurisdictions reason that the renewal option is for the benefit of the lessee for which he gave consideration; that the parties intended the clause to have some meaning; that the lessee should not be deprived of his right to specifically enforce the contract; and therefore, if the parties cannot agree upon a rent figure, that the court has authority to determine a “reasonable rent” and specifically enforce the contract. Conversely, other jurisdictions reasoned that rent is an essential element to be agreed upon in the future; therefore, when the parties cannot subsequently agree, an essential element is missing and since the parties have not agreed upon a method for solving this impasse, the contract is indefinite as to an essential term and is unenforceable.

We adopt the latter view because we believe that when contracting parties do not agree on an essential provision there is no “meeting of the minds” that is the essence of a contract, and in that situation it is not the province of the court to make the contract or to supply material terms or provisions omitted by the parties. We have considered the Florida cases, but do not find them consistent or particularly helpful. Our conclusion is consistent with Camichos v. Diana Stores Corp., 157 Fla. 349, 25 So.2d 864 (1946), and Topper v. Alcazar Operating Co., 160 Fla. 421, 35 So.2d 392 (1948), and the point here involved was not reached in Shaw Brothers Oil Co. v. Parrish, 99 So.2d 610 (Fla.1958). Appellant cites us to State Road Dept. v. Tampa Bay Theaters, Inc., 208 So.2d 485 (Fla. 2d DCA 1968), which was a condemnation case where a lessee with an option to renew upon reasonable rental to “be agreed upon by the parties” was awarded damages for loss of the option and the condemnor appealed, arguing that the option was unenforceable. The Second District Court affirmed, citing Shaw and Camichos. We do not agree that either of those cases supports a position contrary to this opinion. We read the holding in State Road to simply be that in a condemnation action a lessee has a compensable interest under such a lease renewal option because it cannot be legally determined beforehand that the parties will not be able to agree on a reasonable rental. Further, the validity of State Road as authority for a broader principle is put in considerable doubt by language in Bartke’s, Inc. v. Hillsborough County Aviation Authority, 217 So.2d 885 (Fla.2d DCA 1969), which holds that where a lease renewal or extension provision for a fixed term with the amount of rental to “be an amount to be agreed upon,” “there was no right to an extension, since the terms were left open to agreement,” and “the parties were not bound to renew and if terms could not be agreed upon, [an invalid arbitration clause] could not have been resorted to to compel them to supply the missing, but essential, terms of their agreement.” Id. at 887.

We note in this case that with reference to the unspecified monthly rental, the renewal provision uses the word “arbitrated.” However, that word appears to be used as synonymous with “negotiated” and there is no contention here that renewal was to be set by arbitration and that issue is not presented.

We hold that the better view is that the amount of rental is an essential element of a lease, if not the basis for a lease, and an agreement to make a lease, or to renew or extend a lease, that fails to specify either the amount of the rental or a definite procedure to be followed to establish the amount of the rental, is too indefinite to be legally binding and enforceable.

AFFIRMED.

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

      . See generally 3 Thompson on Real Property, § 1121 (1980). Cf. Goldblum v. J.I. Kislak Mortgage Corp., 408 So.2d 748 (Fla. 3d DCA 1982) (espousing general rule but modifying it to allow parol evidence as to new terms where a stricken provision of the lease indicates the parties intended to renegotiate the terms).

      . See, e.g., Camichos v. Diana Stores Corp., 157 Fla. 349, 25 So.2d 864 (1946).

        .See generally 3 Thompson on Real Property, § 1121 (1980) (validity of covenants to renew); 2 Powell on Real Property, ¶ 245[1] (1981) (powers in lessor or lessee to shorten or lengthen the term); 50 Am.Jur.2d, Landlord and Tenant, § 1158 (1970) (certainty and definiteness); Annot., 58 A.L.R.3d 500 (1974) (validity and enforceability of provision for renewal of lease at rental to be fixed by subsequent agreement of parties).

      . Jurisdictions that have held such clauses sufficiently definite to be valid and enforceable are: Hammond v. Ringstad, 10 Alaska 543 (1945); Hall v. Weatherford, 32 Ariz. 370, 259 P. 282 (1927); Chaney v. Schneider, 92 Cal. App.2d 88, 206 P.2d 669 (1949); Bechmann v. Taylor, 80 Colo. 68, 249 P. 262 (1926); Fuller v. Michigan Nat’l. Bank, 342 Mich. 92, 68 N.W.2d 771 (1955); Cassinari v. Mapes, 91 Nev. 778, 542 P.2d 1069 (1975); Drees Farming Assoc. v. Thompson, 246 N.W.2d 883 (N.D.1976); Moss v. Olson, 148 Ohio St. 625, 36 Ohio Ops 252, 76 N.E.2d 875 (1947); Rainwater v. Hobeika, 208 S.C. 433, 38 S.E.2d 495 (1946); Greene v. Leeper, 193 Tenn. 153, 245 S.W.2d 181 (1951); Playmate Club, Inc. v. Country Clubs, Inc., 62 Tenn. App. 383, 462 S.W.2d 890 (1970); Diettrich v. J.J. Newberry Co., 172 Wash. 18, 19 P.2d 115 (1933); Young v. Nelson, 121 Wash. 285, 209 P. 515 (1922); Anderson v. Frye & Bruhn, Inc. 69 Wash. 89, 124 P. 499 (1912). See generally Annot., 6 ALR2d 448 (1949) (factors and elements considered in fixing rental for extended or renewal term where renewal or extension clause leaves amount of rental for future determination); 50 Am.Jr.2d, Landlord and Tenant § 1166 (1970) (factors and elements considered in fixing rent).

      . Jurisdictions that have held such clauses indefinite and unenforceable are: George Y. Worthington & Son Mgmt. Corp. v. Levy, 204 A.2d 334 (D.C.1964); Lutterloh v. Patterson, 211 Ark. 814, 202 S.W.2d 767 (1947); Beasley v. Boren, 210 Ark. 608, 197 S.W.2d 287 (1946); Candler v. Smyth, 168 Ga. 276, 147 S.E. 552 (1929); Streit v. Fay, 230 Ill. 319, 82 N.E. 648 (1907); State v. Jordan, 247 Ind. 361, 215 N.E.2d 32 (1966); Puetz v. Cozmas, 237 Ind. 500, 147 N.E.2d 227 (1958); Beal v. Dill, 173 Kan. 879, 252 P.2d 931 (1953); Walker v. Keith, 382 S.W.2d 198 (Ky.1964); Metcalf Auto Co. v. Norton, 119 Me. 103, 109 A. 384 (1920); Giglio v. Saia, 140 Miss. 769, 106 So. 513 (1926); State exrel Johnson v. Blair, 351 Mo. 1072, 174 S.W.2d 851 (1943); Rosenberg v. Gas Service Co., 363 S.W.2d 20 (Mo.App.1962); Sammis v. Huntington, 104 Misc. 7, 171 N.Y.S. 965, aff’d., 186 App.Div. 463, 174 N.Y.S. 610 (1918); Young v. Sweet, 266 N.C. 623, 146 S.E.2d 669 (1966); R.J. Reynolds Co. v. Logan, 216 N.C. 26, 3 S.E.2d 280 (1939); Jamison v. Lindblom, 92 Ohio App. 324, 49 Ohio Ops 379, 110 N.E.2d 9 (1951); Karamanos v. Hamm, 267 Or. 1, 513 P.2d 761 (1973); Slayter v. Pasley, 199 Or. 616, 264 P.2d 444 (1953); Vartabedian v. Peerless Wrench Co., 46 R.I. 472, 129 A. 239 (1925); Schlusselberg v. Rubin, 465 S.W.2d 226 (Tex. Civ.App.1971); Salem Lodge v. Smith, 94 W.Va. 718, 120 S.E. 895 (1924); Batavian Nat’l. Bank v. S & H, Inc., 3 Wis.2d 565, 89 N.W.2d 309 (1958); Leider v. Schmidt, 260 Wis. 273, 50 N.W.2d 233 (1951); Ratcliff v. Aspros, 254 Wis. 126, 35 N.W.2d 217 (1948).

      . See, e.g., Walker v. Keith, 382 S.W.2d 198 (Ky.1964); Karamanos v. Hamm, 267 Or. 1, 513 P.2d 761 (1973). Contra Edwards v. Tobin, 132 Or. 38, 284 P. 562 (1930) (holding “the method of determining the rent pertains more to form than to substance. It was not the essence of the contract, but was merely incidental and ancillary thereto”). It would appear that Karamanos and Slayter v. Pasley, 199 Or. 616, 264 P.2d 444 (1953), both subsequent decisions from the same jurisdiction going the opposite way, have overruled Edward v. Tobin by implication.

      . In 1 Williston on Contracts § 45 (3rd ed. 1957), it is stated:
      Although a promise may be sufficiently definite when it contains an option given to the promisor, yet if an essential element is reserved for the future agreement of both parties, the promise gives rise to no legal obligation until such future agreement. Since either party, by the very terms of the agreement, may refuse to agree to anything the other party will agree to, it is impossible for the law to fix any obligation to such a promise.


author: FERGUSON, Judge.

text:
    Ronnie FRALEY, Appellant, v. The STATE of Florida, Appellee.
    Nos. 81-2510, 81-2521.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    Rehearing Denied Feb. 28, 1983.

      Bennett H. Brummer, Public Defender and Daniel H. Forman, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant raises two issues by this appeal: (1) the court erred in not suppressing a suggestive in-court identification, (2) the court vindictively sentenced him because he exercised his constitutional right to a trial by jury. We dispose of the first issue briefly. Considering all the circumstances, the alleged suggestive procedure did not give rise to a substantial likelihood of irreparable misidentification. Grant v. State, 390 So.2d 341 (Fla.1980).

We now address the second issue. The trial court offered appellant a sentence of six years in exchange for a plea of guilty to charges of armed robbery and probation violation. He refused the offer. After trial by jury, appellant was convicted and the court imposed a twenty-five year sentence. Appellant points to the persistence of the court in the plea offer which was refused, and the severe sentence imposed after conviction, as evidence of judicial vindictiveness.

Appellant contends that the court became thoroughly familiar with the facts of the case during hearings on a motion for bond, and a combined probation violation and suppression hearing, thus, the more severe sentence could not have been based on any new facts. No presentence investigation was conducted.

Our attention is directed to specific colloquies in the record:

[October 2]
[Defense counsel]: I have also explained the circumstances and the law to Mr. Fraley. I believe he understands it and he has decided not to accept either the State’s offer or the Court’s offer.
Court: The court’s offer will be revoked at this time.
[Prosecutor]: State’s also.
[October 28]
Court: I made an offer. The outstanding plea offer is rejected so we are in a trial posture.
[November 2, at commencement of the trial]
Court: Mr. Fraley, so we are on the record, you understand that the Court conveyed an offer to you of six years in the State pen on all cases and you are turning that down?
Defendant: Yes.
Court: Okay ... No more plea offers. [November 5, after all the evidence had been presented to the jury]
Court: Offer is still open to Mr. Fraley, too.
Court: Mr. Forman, let me say, in order to sweeten the pot, as far as your client is concerned, I will let him plead no contest to the armed robbery charge, let him appeal the probation violation of five years, with the understanding that if I would be reversed on the Probation Violation Hearing, I would vacate the sentence on the armed robbery no contest, we can start anew... If I am affirmed on the Probation Hearing it sticks, six years on the armed robbery charge... Talk to your client.
Court: I will give both defendants until 10:00 tomorrow to consider it.
[November 6, before the jury began deliberations]
Court: I want to know one thing. Are they taking the plea offer, yes or no? Defendant: No.

The law is clear that any judicially imposed penalty which needlessly discourages assertion of the fifth amendment right not to plead guilty and deters the exercise of the sixth amendment right to demand a jury trial is patently unconstitutional. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968) (a statute, violation of which is punishable by death on a jury’s recommendation, but which assures no execution if the accused enters a guilty plea, is invalid because it encourages guilty pleas); Thomas v. United States, 368 F.2d 941 (5th Cir.1966) (imposition of harsher punishment as a result of defendant’s refusal to waive his fifth amendment rights held improper); R.A.B. v. State, 399 So.2d 16 (Fla. 3d DCA 1981) (decision to adjudicate juvenile delinquent based upon his assertion of fifth amendment right to remain silent and right to plead not guilty was improper); McEachern v. State, 388 So.2d 244 (Fla. 5th DCA 1980) (court could not impose a more severe sentence because of the costs and difficulty involved in proving the State’s case); Gillman v. State, 373 So.2d 935 (Fla. 2d DCA 1979) (defendant’s choice of plea should not have played any part in the determination of his sentence); Hector v. State, 370 So.2d 447 (Fla. 1st DCA 1979) (defendant’s failure to confess to crime is an improper consideration in imposing sentence). Compare United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978) (sentencing court can properly give consideration to defendant’s false testimony observed by the judge during trial).

The cases relied upon by the state, Smith v. Wainwright, 664 F.2d 1194 (11th Cir.1981) and Blackmon v. Wainwright, 608 F.2d 183 (5th Cir.1979), holding that a defendant may not complain simply because he received a heavier sentence after trial than he would have under the plea bargain, are not controlling. In neither case had the court offered the sentence in exchange for the plea. Moreover, in Smith, the court delayed sentencing for several months while awaiting and pondering a presentence investigation report which was considered in imposing sentence. See also Cole v. Wainwright, 614 F.2d 67 (5th Cir.1980) (trial court was not aware of government’s plea offer).

Most assuredly, under the laws of this state a trial judge has considerable discretion as to what sentence to impose and where the sentence is within statutory mínimums or máximums appellate review will be limited to determining whether the process used by the , judge in arriving at a sentence was fair, particularly whether the factors taken into consideration were relevant and reliable. See Smith v. Wainwright, 664 F.2d 1194 (11th Cir.1981); Scott v. United States, 419 F.2d 264 (D.C.Cir.1969).

But we simply cannot determine from this record what factors the court took into account in imposing a sentence four times more severe than that which had been offered, which offer was renewed even after the conclusion of all the evidence. When a trial judge imposes a sentence upon a defendant after trial, which is more severe than the plea offer made by the court after it has heard all the evidence, the reasons for the more severe sentence must affirmatively appear in the record so as to assure the absence of vindictiveness. Cf. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Because of the total absence of reasons for the more severe sentence we find the sentence presumptively unlawful.

The judgment of conviction is AFFIRMED, and the cause is remanded to the trial court with instructions to resentence the defendant in accordance with the plea offer or to make record findings supportive of the more severe sentence.

      . In fairness to the trial judge, it should be noted that the practice described herein — participation by the court in the plea bargaining process — is commonplace in the state courts of this district. There is no state counterpart to Rule 11 of the Federal Rules of Criminal Procedure which forbids a judge from participating in plea bargaining, Fed.R.Crim.P. 11(e)(1), though the practice is frowned upon elsewhere. See American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 3.3 (1967). The Standards recognize a number of reasons why a trial judge should stay out of plea discussions, all of which raise questions of fundamental fairness: (1) judicial participation in the discussions can create the impression in the mind of the defendant that he would not receive a fair trial were he to go to trial before this judge, (2) judicial participation in the discussions makes it difficult for the judge objectively to determine the voluntariness of the plea when it is offered, (3) judicial participation to the extent of promising a certain sentence is inconsistent with the theory behind the use of the presentence investigation report, (4) the risk of not going along with the disposition apparently desired by the judge may seem so great to the defendant that he will be induced to plead guilty even if innocent. Commentary to Standards, Section 3.3(a).
      We do not question the validity of the sentence in this case merely because of the disparity between the plea offer and the sentence after trial. The Supreme Court of the United States has held that it is constitutionally permissible for the state to extend a benefit to a defendant who in turn extends a substantial benefit to the state and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary. Brady v. United States, 397 U.S. 742, 753, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1969). We emphasize that this case is singled out because of three unusual circumstances, (1) the offer was renewed by the court at the conclusion of the evidence after the labors of trial were substantially completed, (2) no presentence investigation was conducted, nor is there evidence of any other appropriate factors the court might have considered, (3) the sentence finally imposed is, by comparison with the last plea offer, strikingly harsh.


author: JOANOS, Judge. LARRY G. SMITH, Judge,

text:
    David Alan MYERS, Appellant, v. STATE of Florida, Appellee.
    No. AH-58.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1983.
    Rehearing Denied March 1, 1983.

      Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   JOANOS, Judge.

In this appeal from a judgment and sentence for possession of methaqualone, appellant asserts that the trial court erred in denying his motion to suppress evidence obtained from within his apartment. Appellant pled nolo contendere reserving the right to appeal the denial of his motion to suppress. Appellant also challenges the conditions of his probation.

Appellant occupied a townhouse apartment with Cynthia Sheffield. On June 21, 1981, a black Oldsmobile struck a parked, unoccupied vehicle causing some property damage, and did not stop. Officers Green and Shoenfield were called to investigate the accident and after about an hour they were informed that the owners of the parked automobile which had been hit had located the black Oldsmobile parked near an apartment complex. It was determined that the car belonged to Sheffield Industries. The officers began knocking on doors at the apartment complex in order to find the operator of the vehicle.

Officer Green testified that Ms. Sheffield, dressed in a bikini, answered the door of Apartment 73 and acknowledged ownership of the auto, but said she did not think enough damage had been done to warrant stopping. Green testified Sheffield said “Why don’t you come in,” and that he told Sheffield “she had to go with me to the police station to complete the accident report” and that he was going to place her under arrest. Green said he wanted to go to the station to do the report because Sheffield seemed intoxicated and in bad shape and he did not want to stay at her apartment. Green said she agreed to go, but wanted to go upstairs and put on a shirt and tell her boyfriend, and that she invited him upstairs after he told her he did not want her to go upstairs alone. Both Officers followed her upstairs and into the bedroom where appellant was sleeping and where they observed scales, a transparent bag of white powder, and a partially opened wooden box containing a transparent bag of marijuana, the evidence sought to be suppressed. Green also said he had observed another woman in the kitchen downstairs, and a pistol in the living room, and followed Sheffield upstairs for his own protection, although he was not concerned that there was someone downstairs.

Officer Shoenfield testified in a deposition, parts of which were introduced at the suppression hearing, that once the two officers were inside the apartment, Officer Green told Sheffield that she needed to come to the police station, Sheffield said she wanted to go upstairs and put on a shirt, and Green said “fine” and instructed Shoenfield to follow her upstairs.

After hearing the evidence presented at the suppression hearing, the trial judge ruled that the officers had entered the apartment on Sheffield’s invitation and with her consent, that she gave consent for the officers to accompany her upstairs; that it was their duty to accompany her upstairs and that the illegal substance had been observed in plain view.

Appellant contends that the state failed to prove by clear and convincing evidence that Sheffield freely and voluntarily consented to the officers’ initial entry into the apartment, and that their warrantless entry into the apartment to effect her arrest was illegal under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), as well as Florida case law providing that a police officer is not authorized to enter a building to make a warrantless arrest for a misdemeanor, citing Johnson v. State, 395 So.2d 594 (Fla. 2d DCA 1981). Appellant asserts that the state did not show by clear and convincing evidence that Sheffield gave consent in the face of evidence that Sheffield was intoxicated at the time and unaware of her right to refuse the officers’ entry and that the officers failed to advise Sheffield of their purpose to arrest her before entering.

Alternatively appellant contends that even if Sheffield consented to the initial entry into the apartment, the seizure of evidence from the bedroom was illegal because Sheffield was illegally arrested while downstairs in the apartment, thus any consent for the officers to accompany her upstairs was presumptively tainted. Briefly, appellant’s theory is that Officer Green was without authority to arrest Sheffield because the offense which she had committed was a noncriminal traffic infraction. Appellant points out that an officer’s authority to arrest without a warrant is limited to that authorized by statute, and that only Section 316.645 arguably provides such authorization in this case. Also, Section 316.-645 has been interpreted in light of Chapter 318 as not providing authority to make an arrest for a noncriminal traffic infraction. State v. Young, 45 Fla.Supp. 126 (Fla. 4th Cir.Ct.1977).

Section 316.645 provides:

A police officer who makes an investigation at the scene of a traffic accident may arrest any driver of a vehicle involved in the accident when, based upon personal investigation, the officer has reasonable and probable grounds to believe that the person has committed any offense under the provisions of this chapter in connection with the accident.

The offense which Sheffield allegedly committed is defined in Section 316.063, which requires one who collides with and damages an unattended vehicle to immediately stop and locate and notify the owner or attach a note to the vehicle. Failure to do so is to be punished as provided in Section 316.655, which clearly identifies the offense as an infraction as defined in Section 318.13(3). An infraction is “a noncriminal violation which is not punishable by incarceration and for which there is no right to a trial by jury or a right to court appointed counsel.” Appellant argues that when Section 316.645 and Chapter 318 are construed in pari mate-ria, the term “offense” in 316.645 must be limited to the criminal offenses listed in Sections 316.655(4) and 318.17, and since Sheffield’s arrest was for a noncriminal infraction, not a criminal offense, it cannot be justified under Section 316.645 or any other statutory provision, therefore any arrest of Sheffield was illegal and any subsequent consent to accompany her upstairs was invalid.

First of all, although appellant asserts the initial consent to the officers’ entry into the apartment was invalid because the officers did not explain their purpose in being there to Sheffield, there was evidence from which the trial court could conclude that the officers did not enter the apartment under false pretenses, and that Sheffield invited the officers or consented to their entry into the apartment. The testimony can also be interpreted as showing that at the point when the invitation to enter issued, Green had not definitely ascertained that Sheffield had been personally involved in the accident. Even if the invitation came after Green had determined she had been involved in the accident, it does not appear that he misrepresented his intentions in order to gain entry into the apartment, and it does not appear that Sheffield’s invitation or consent for the officers to enter was in response to any misrepresentation. To the extent that Green had had time to explain his purpose before he was invited inside, Sheffield was apprised of his reason for being there. These circumstances distinguish the instant case from the cases relied on by appellant, State v. Bailey, 417 A.2d 915 (R.I.1980), and McCall v. People, 623 P.2d 397 (Colo.1981).

The next question presented .is whether an arrest occurred once the officers were inside the apartment. The elements of an arrest are: (1) the purpose or intention to effect an arrest under a real or pretending authority; (2) an actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) a communication by the arresting officer to the person whose arrest is sought, of an intention, a purpose then and there to effect an arrest; and (4) an understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain. Melton v. State, 75 So.2d 291 (Fla.1954). Appellant argues that all of these criteria were satisfied and that clearly Sheffield’s freedom of movement was significantly restrained. Appellee argues that Sheffield was not arrested, rather she merely consented to accompany the officers to police headquarters in order to fill out the accident forms and accept a traffic citation.

In order to establish that an arrest occurred, appellant points to Officer Green’s testimony that in proceeding to the apartment, it was his purpose to arrest the operator of the vehicle and take him or her to the police station, and that this intention was communicated to Sheffield since Green informed her “she had to go with me to the police station to complete the accident report,” and he “was going to place her under arrest to take her to the station and write her some tickets.” Regarding Green’s intention to arrest Sheffield, at the suppression hearing, Green clarified what he meant by an arrest: “[W]hen you write a traffic citation, it’s the same thing as arresting them. You just release them on their own signature.... I was not going to physically place them in jail, but I was going to take them down to finish the report there.”

Even assuming that Green’s intention to “afrest” as qualified above, was communicated to Sheffield, and that a constructive detention could be inferred from the circumstances, this would establish only the first three elements of an arrest. As to the fourth, Sheffield responded negatively when asked whether she recalled Officer Green telling her he wanted her to go down to the police station, but she testified that her common sense told her that it would be normal to go down to the police station to take care of an accident. She also replied negatively when asked whether she was aware, as she went upstairs, that she was under arrest. “There can be no arrest ... where the person sought to be arrested is not conscious of any restraint.” 5 Am. Jur.2d “Arrest” § 1. Sheffield’s perception of the situation seems particularly significant in this context because whether she was actually under arrest and aware that she was under arrest in theory affects the quality of her subsequent alleged consent/invitation for the officers to accompany her upstairs. We also note that repeatedly in his testimony Officer Green said he intended to take Sheffield to the station for the limited purpose of completing an accident report and issuing a traffic citation, and that he did not wish to remain in Sheffield’s apartment to carry out these functions due to her condition. Green also testified that if Sheffield had refused to accompany him he would not have restrained her, but would have left in order to obtain an arrest warrant. Given all of these factors, we do not consider Green’s decision to complete the reports and citations at the police station to have been unreasonable, and we do not think a formal arrest occurred which, if invalid, might have tainted Sheffield’s subsequent consent for the officers to accompany her upstairs.

Appellant also contends that even absent an illegal arrest, Sheffield’s alleged consent for the officers to accompany her upstairs was merely submission to the apparent authority of the officers, because prior to inviting them upstairs, Green told Sheffield that “she had to go with me to the police station to complete the accident report, I was going to issue some traffic citations,” and that he “was going to place her under arrest to take her to the station and write her some tickets.” Appellant cites as authority Bailey v. State, 319 So.2d 22 (Fla.1975); Villari v. State, 372 So.2d 522 (Fla. 1st DCA 1979); Seuss v. State, 370 So.2d 1203 (Fla. 1st DCA 1979); Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978); Gonterman v. State, 358 So.2d 595 (Fla. 1st DCA 1978); and Mobley v. State, 335 So.2d 880 (Fla. 4th DCA 1976). In particular, appellant relies on the following language from Mobley, citing Pekar v. United States, 315 F.2d 319 (5th Cir.1963):

[I]f this consent is obtained by the use of force or pressure, or where superior authority had any place in the obtaining of consent, the consent is no consent at all, and the constitutional guarantees against unreasonable search and seizures has been violated.

The question whether the consent was voluntary “ ‘is a question of fact to be determined from the totality of all the circumstances.’ ” Denehy v. State, 400 So.2d 1216 (Fla.1980). Viewing the totality of the circumstances, and particularly Sheffield’s testimony and other explanatory testimony by Officer Green, we conclude that the trial court could rule that Sheffield's consent was not the result of pressure or coercion. First, as noted above, Sheffield testified that she was not aware of being under arrest and that she considered it normal to go to the station in order to fill out accident reports. Second, Officer Green, in testifying at the suppression hearing that it had been his intention to arrest her, a factor heavily relied upon by appellant, clarified what he meant by an intention to arrest as noted above. He repeatedly stated that he intended to take her to the station for the limited purpose of filling out reports and issuing a traffic citation, and this limited purpose was conveyed to Sheffield before the alleged consent/invitation to the officers to accompany her upstairs, with her reaction that this procedure was not unusual. Therefore we think this case is distinguishable from the cases listed above. Notably, in each of those cases, there was affirmative evidence of lack of consent, either in the form of the defendant questioning the officer regarding the need to obtain a search warrant, or in the form of refusing several times to allow a search and finally allowing it after being told the officers could obtain authority to search regardless of consent, or the defendant silently complied with an unauthorized request by an officer. Again, it does not appear that Officer Green deceived Sheffield as to his intention to go to the station for the limited purpose of filling out an accident report and issuing a citation prior to the invitation to accompany her upstairs.

In addition to the foregoing, we note that the officer investigating a traffic accident has a duty to expeditiously complete and file written accident reports in many cases, Section 316.066(3)(a) Florida Statutes. Construing Section 316.645 in light of chapter 318, an officer may not have authority to formally arrest an individual in the fullest sense and hold them for interrogation or until bail is authorized. Certainly, however, there is authority to temporarily detain for the purpose of filling out accident reports and issuing citations. This authority also includes the ability to proceed to a neutral place, when to do so is reasonable and necessary, in order to accomplish this end, when the person involved has already left the accident scene. Such a temporary detention, properly limited in scope by the circumstances which prompted its initiation, would not appear to run afoul of the individual right to remain free of unreasonable searches and seizures. See generally Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The circumstances of this case are unusual; however, it was not unreasonable for the officer pursuant to his duty to complete reports and issue citations, to ask that Sheffield go with him to the police station or to accompany Sheffield upstairs for his own protection.

With regard to appellant’s challenge to the conditions of his probation, the record indicates that the alleged illegally imposed conditions have not been brought to the attention of the trial court, for an initial ruling, by way of an objection or a motion to strike the alleged offending conditions. Therefore, we affirm without prejudice to appellant to raise this argument in a properly filed motion to strike or correct the alleged illegal conditions of probation. See Fresneda v. State, 347 So.2d 1021 (Fla.1977); Bodden v. State, 411 So.2d 1391 (Fla. 1st DCA 1982); and Section 948.03(3) Florida Statutes (1981). See also Barlow v. State, 390 So.2d 165 (Fla. 5th DCA 1980), and Pope v. State, 368 So.2d 676 (Fla. 1st DCA 1979).

AFFIRMED.

THOMPSON, J., concurs.

LARRY G. SMITH, J., dissents with opinion.

LARRY G. SMITH, Judge,

dissenting.

I dissent because I believe that in the absence of a lawful arrest, the officers had no authority to restrict Sheffield’s movements in her own apartment by denying her the right to go upstairs to put on a shirt unless they also went upstairs with her. The circumstances are such that Sheffield was restrained of her liberty to the extent that she would have been entitled to invoke the protections of the Fourth Amendment. See, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). The officers’ intrusion into appellant’s second floor bedroom was neither reasonable nor necessary to accomplish their mission, if indeed, as the majority finds, it was simply to secure Sheffield’s assistance in filling out accident reports, and to issue a traffic citation to her.

It seems clear to me that Section 316.645, Florida Statutes, which Sheffield is alleged to have violated, does not give an officer arrest authority except at the accident scene. The text of the statute is quoted in the majority opinion. However, the majority has overlooked the section heading, which reads: “316.645. Arrest authority of officer at scene of a traffic accident.” (emphasis supplied) This section heading was a part of the law as enacted by the Legislature and is entitled to due weight in the construction of the statute. 30 Fla.Jur., Statutes, § 108.

      . The state concedes that appellant had a legitimate expectation of privacy as a resident of the apartment, citing State v. Brown, 408 So.2d 846 (Fla. 2d DCA 1982), and additional cases. The standing issue was not specifically addressed below.

      . Cf. Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982), holding that police had the right, for purposes of monitoring the actions of an arrestee, to enter his dormitory room where arrestee had been followed to go to secure identification papers, without necessity of exigent circumstances.

      . Originally enacted as Section 316.07, Chapter 71-135, Section One, Laws of Florida (1971).

      .Section 316.645, when considered in connection with the section heading quoted above, discloses an intention to effect only a narrowly circumscribed expansion of warrantless arrest rights under Section 901.15, subsections (1) and (5), which provide, among other things, that an arrest may be made without a warrant for a misdemeanor or a violation of Chapter 316 committed in the presence of the officer, such arrest to be made either immediately or on fresh pursuit.


author: COBB, Judge. SHARP, Judge,

text:
    Avalon L. SEVERS, Appellant, v. Dwight W. SEVERS, Appellee.
    No. 81-899.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1983.
    Rehearing Denied Feb. 10, 1983.
    Bruce M. Bogin of Bogin, Munns & Simon, Orlando, for appellant.
    Frank J. Griffith, Jr., of Nabors, Potter, McClelland, Griffith & Jones, P.A., Titus-ville, for appellee.
   COBB, Judge.

On appeal the wife seeks a greater alimony award, and asks that it be permanent. She also asserts that the lower court erred in not requiring the husband to maintain life and medical insurance payable to her and the children; in not granting her sufficient attorney fees; and in not granting her Ja special equity in the “property” of the husband’s professional degree and license, valuated by capitalizing his future earning capacity.

The facts elicited below show that there are three minor children of this 15-year marriage. The parties were co-owners of a marital home in Titusville. The wife has a teaching degree, and worked as a teacher to assist her husband in achieving his law degree. After his graduation and entry into private practice, the wife abandoned her career and devoted full time to being a housewife and mother. The evidence of the husband’s earning capacity, based on a net average for the past five years, shows an annual income of $31,300. The wife has currently maintained her teaching certificate in the State of Florida.

At the time of the dissolution the parties were co-owners of the marital home, a Dat-sun truck, a 1979 Datsun car and household furnishings. The husband’s individual assets were law firm stock ($15,000), law firm property ($24,000), an orange grove (equity of $50,000), a law firm pension plan ($27,-000), cash in the amount of $7,000, orange grove equipment valued at $2,500, and a 1980 Datsun ear, motorcycle and boat (aggregate value of $7,000). The wife’s individual assets were a mortgage note receivable ($17,000), cash in the amount of $5,000, and a certificate of deposit of $10,-000.

In the final judgment the court dissolved the marriage of the parties and equally divided custody of the minor children between the parents. The husband is required to pay $450 per month to the wife as child support. The court awarded rehabilitative alimony of $300 per month to the wife for 36 months, and awarded lump-sum alimony of one-half of the husband’s interest in the marital home. The parties have stipulated to sell the home. The wife, therefore, would be receiving 75% of the proceeds and the husband would receive 25%. The court also granted the wife as lump-sum alimony the husband’s one-half interest in the Datsun automobile and his one-half interest in the sterling silver (value claimed to be $6,400). The marital home was to be placed for sale at $175,000, and the briefs of the parties suggest to us that it will be sold for $166,500. Pending the sale of the marital home, the payments for mortgage, taxes, insurance and any major repair items would be equally split between the parties. The court divided certain properties that the parties were both claiming. The court awarded as a contribution toward payment for costs and services to the wife $6,500 as attorney fees, and $1,155.35 as costs. The court ordered the husband to pay certain medical bills of the wife. The court retained jurisdiction of the cause and the parties and their minor children for all legal purposes.

Based upon a proposed sale of the marital home at $166,500 with a net of $40,000 down and a mortgage receivable of $65,000 payable over 20 years at 12% interest, the relative financial positions of the parties, resulting from the trial court’s judgment, is as follows:

Wife’s Post-Dissolution Assets
Cash — Brad properties account $ 900.00
Sale of marital home — cash 30,000.00
Mortgage received — marital home ($537 per mo. — 1295—20 years) 48,750.00
Mortgage received — Brad properties ($200 per mo. — 25 years) 17,500.00
Merrill, Lynch money market account 15,000.00
1979 Datsun 4,000.00
Household furnishings 1,500.00
Sterling silver 6.400.00
TOTAL NET WORTH $124,050.00
Husband’s Post-Dissolution Assets
Law firm interest $ 15,000.00
Law firm property 24,000.00
Orange grove 50,000.00
Law firm pension plan 27,000.00
Cash — savings account 7,000.00
Marital home — cash—$10,000 less Appellant’s attorney’s fees of $7,658.34 2,341.66
Mortgage receivable — marital home 'h 16,250.00
1978 Datsun truck 3,500.00
Orange grove equipment 2,500.00
Household furnishings 1,500.00
1980 Datsun, motorcycle and boats 7.000.00
TOTAL NET WORTH $156,091.66

If the law firm stock and property were excluded from the husband’s net assets because they have no current market value, then the wife’s assets would be $124,050 and the husband’s $115,091.66. The wife has no debt where the husband has a mortgage on the grove and on the law firm property.

The relative income positions of the parties as a result of the final judgment and payment of the alimony and support obligations are as follows:

Husband’s Income

Net monthly salary $2,194.59
Car allowance 250.00
Mortgage receivable from Vi of house mortgage 178.00
Net Income $2,622.59
Less rehabilitative alimony 300.00
Less child support 450.00
Adjusted net monthly income $1,972.59

Wife’s Income (Without Working)

Rehabilitative alimony $ 300.00
Child support 450.00
Brad mortgage (25 years) 200.00
Marital home mortgage (20 years) 537.00
Merrill, Lynch account ($15,000 at 15% interest) 189.00
Total monthly income $1,666.00

(The above income for husband and wife assumes the marital residence is sold as stated above.)

Much of the wife’s income is either not taxable or subject to capital gains treatment or not even capital gains treatment if the wife repurchases a home. The wife’s monthly income does not involve her working, whereas the husband must continue working and each party shares equally in the responsibility of rearing the minor children. The above monthly income is predicated upon the wife utilizing the $30,000 she would receive from the sale of the marital residence to apply toward another residence. If the wife chooses to invest this $30,000 and rent, then she would have $350 a month additional income, or a total of $2,016 per month. The husband was renting at the time of the final hearing.

The wife’s claims in regard to medical insurance are not supported by the facts. Her claim in regard to life insurance payable to her is not supported by the law. See Eagan v. Eagan, 392 So.2d 988 (Fla. 5th DCA 1981). The record fails to reveal whether or not the husband currently maintains life insurance payable to the children.

The trial court awarded a fee to counsel for the wife of $6,500. This amount does not constitute an abuse of the broad discretion vested in the trial court in regard to attorney fees. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Hill v. Hill, 326 So.2d 207 (Fla. 1st DCA 1976).

The wife’s claim to a vested interest in the husband’s education and professional productivity, past and future, is unsupported by any statutory or case law. Indeed, such an award by the trial court would transmute the bonds of marriage into the bonds of involuntary servitude contrary to Amendment XIII of the United States Constitution.

There was neither testimony nor argument presented to the trial court to support permanent alimony. Indeed, one of the wife’s own witnesses, a vocational rehabilitation counselor, testified at trial, without contradiction, that the wife could be rehabilitated and earn approximately $14,000 per annum within two years. In closing argument, counsel for the wife specifically requested an award of rehabilitative alimony for three years in the amount of $1,000 per month, apparently recognizing that Florida law would not support an award of permanent alimony under the facts of this case. As stated in Canakaris, 382 So.2d at 1202:

[Wjhere the action of the trial judge is within his judicial discretion, as in the establishment of the amount of alimony or award of child custody, the manner of appellate review is altogether different. Judicial discretion is defined as:

The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.

1 Bouvier’s Law Dictionary and Concise Encyclopedia 804 (8th ed. 1914). Our trial judges are granted this discretionary power because it is impossible to establish strict rules of law for every conceivable situation which could arise in the course of a domestic relation proceeding. The trial judge can ordinarily best determine what is appropriate and just because only he can personally observe the participants and events of the trial.

We cite with favor the following statement of the test for review of a judge’s discretionary power:

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.
Delno v. Market Street Railway Company, 124 F.2d 965, 967 (9th Cir.1942).

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness. [Emphasis added.]

Utilizing the foregoing test from Ca-nakaris, can we say that the judgment of the trial court, viewed in its totality, reflects a view which no reasonable man would take? To so hold is to say, as a matter of law, that the wife has been “shortchanged.” See Canakaris, 382 So.2d at 1204. She started the marriage with a moderate annual income from teaching. She now has a three-quarter interest in a $175,000 home, which apparently will be sold for $166,500; some $30,000 in liquid assets; sterling silver worth $6,400; $450 per month child support; the same teaching certificate; and $300 alimony per month for three years. She was 37 years of age at the time of final hearing, and in good health. To require the trial judge to increase the award to the wife cannot be reconciled with the clear directive from the Florida Supreme Court to the district courts of appeal in Canakaris to honor the superior vantage point of the trial court in domestic relation proceedings. As pointed out by the Florida Supreme Court in Canakaris:

Dissolution proceedings present a trial judge with the difficult problem of apportioning assets acquired by the parties and providing necessary support. The judge possesses broad discretionary authority to do equity between the parties and has available various remedies to accomplish this purpose, including lump-sum alimony, permanent periodic alimony, rehabilitative alimony, child support, a vested special equity in property and an award of exclusive possession of property. As considered by the trial court, these remedies are interrelated; to the extent of their eventual use, the remedies are part of one overall scheme. It is extremely important that they also be reviewed by appellate courts as a whole, rather than independently.

382 So.2d at 1202.

The Florida Supreme Court again addressed the question of judicial discretion of the trial courts in the case of Weiner v. Weiner, 403 So.2d 408 (Fla.1981). In that case, the Supreme Court reversed the Third District which had increased the amount of alimony from $750 a month to $1,200 a month. In Weiner, the court said, at page 409:

We agree that no abuse of the trial court’s discretion has been shown and that the district court improperly substituted its judgment for that of the trial court regarding the award of periodic alimony....

See also Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

The judgment of the trial court is AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I dissent in this case because I think the lower court’s rehabilitative alimony award of three hundred dollars ($300) per month for thirty-six (36) months is an abuse of discretion. The majority says the wife’s post-dissolution income will be one thousand six hundred sixty-six dollars ($1,666) per month. But this figure includes four hundred fifty dollars ($450) child support, and the three hundred dollars ($300) rehabilitative alimony will terminate in three years.

There was no testimony that the wife was presently able to support herself. She had a teaching degree and taught school at the beginning of the parties’ marriage to help support them while the husband went to law school. Thereafter, she was a full-time wife and mother, and she raised the parties’ three children. In the year prior to the dissolution, the husband earned four thousand five hundred dollars ($4,500) per month from his law firm. The parties enjoyed a comfortable lifestyle.

Mr. Severs will continue to enjoy a lifestyle as good as, if not better than, in the past. However, Mrs. Severs’ lifestyle necessarily will drastically reduce because there is little likelihood she can ever earn an income sufficient to allow her to maintain a lifestyle close to the one she enjoyed during the marriage. As the expert witness testified, if she uses her cash assets ($15,000 over 2 years) for reschooling, her gross salary will probably be only thirteen thousand five hundred dollars ($13,500) per year. Rulings like the one in this case make the role of wife and homemaker a very precarious business, and not one a parent could in good conscience advise a daughter to choose.

It appears to me this case is one in which permanent alimony should have been awarded. In McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), the wife worked, as did Mrs. Severs, to help her husband obtain his professional degree, and then she played a homemaker role for many years raising their children. In McAllister the court said rehabilitation would result at best in the wife earning only a modest income. It reversed the award of rehabilitative alimony and directed it be made permanent and sufficient to allow Mrs. McAl-lister a lifestyle commensurate with the one established during marriage. That is what I think should have occurred here.

In spite of the majority’s reference to involuntary servitude, I think it would be proper for a court to base a permanent alimony or lump sum alimony award on the fact that one spouse helped support and assist the other in obtaining a professional degree. If the majority decision becomes the prevailing law on this point, the young should take note: “Putting a spouse through” will become a remarkably poor personal investment.

      . § 61.08(2)(f), Fla.Stat. (1981); see Wisner v. Wisner, 129 Ariz. 333, 631 P.2d 115 (Ariz.Ct. App.1981).