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

text:
    George C. WRIGHT, Appellant, v. Ruby M. WRIGHT, Appellee.
    No. 79-217.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 1980.

      Richard W. Hennings, Tavares, for appellant.
    W. B. Hunter, Tavares, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a final judgment of dissolution of marriage entered by the Circuit Court for Lake County which denied the husband a special equity in real and personal property held by the parties as tenants by the entirety and property in Indiana held by the wife individually.

Appellant, George C. Wright, and appel-lee, Ruby M. Wright, were married on December 20, 1969. During the marriage, appellant conveyed real property in Florida, a $1,000.00 savings account, two $10,000.00 certificates of deposit, and fifteen shares of bank stock to himself and his wife as tenants by the entirety. He also transferred to the wife, individually, real property he owned in Indiana.

Appellant raises as error the court’s failure to award him a special equity in this property.

Mr. Wright contends that he is entitled to a special equity in Mrs. Wright’s interest in all property which had been owned by him on the date of the marriage. There is no dispute that he had purchased or acquired all of this property during his first marriage and that appellee had made no contribution toward the acquisition or purchase of the property. Mr. Wright explains that he conveyed the property to avoid probate expenses if he should predecease Mrs. Wright. Appellee says that her interest was for the purpose of providing security.

These factual circumstances bring into play the application of Ball v. Ball, 335 So.2d 5 (Fla.1976), which overturned the law established by Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971). Steinhauer, decided after the 1968 revision of the Florida Constitution, held that there was no longer any distinction between the property rights of men and women. A conveyance from a husband to a wife was presumed to be a gift as was a conveyance from a wife to a husband-an understandable result which comported with reason. The deed meant what it said unless the grantor could prove otherwise. The presumption could be overcome but it was the grantor’s burden to prove that no gift was intended.

Ball v. Ball revised the rule and under the guise of doing away with all presumptions stated:

Either spouse has the right to attempt to establish a ‘special equity’ in the realty by reason of his or her extraordinary contribution toward its acquisition, either financially or through personal industry and service to the other party. The other party, of course, can negate the attempted showing or affirmatively attempt to show that a gift was intended .... Consistent with prior decisional law, however, we hold that a special equity is created by an unrebutted showing, as was developed here, that all of• the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship. In these cases the property should be awarded to that spouse, as if the tenancy were created solely for sur-vivorship purposes during coverture, in the absence of contradictory evidence that a gift was intended. (Emphasis supplied.)

Id. at 7. The effect of the decision, however, was to raise yet another presumption: a presumption that a special equity is created by an unrebutted showing that all consideration for property held as tenants by the entirety was supplied by one spouse from a source clearly unconnected with the marital relationship. Now the burden is on the grantee to establish, by “contradictory” evidence, that a gift was intended. In sum, the grantee must overcome the presumption of the special equity.

To make a valid gift, a donor or grantor must have an unqualified right to the property he transfers. This principle is self-evident. Before a gift can be made the donor must first own the subject of the gift. If we still recognize that parties to a marriage may acquire and own property individually from their own labors, there should be no more distinction or restriction in its transfer than for property acquired before the marriage. Ball places the burden on the recipient to prove that a gift was intended, a heavy burden in an instance where the marital discord does not develop until some years after the conveyance. It is unrealistic to expect a dutiful and happily married grantee-spouse to anticipate the possibility of later marital problems and to insist upon documentation that the conveyance was intended as a gift. It is also unlikely that any “documentation” of the grantor’s intent will exist unless a knowledgeable attorney protects the spouse by inserting in the deed adequate language to evidence a donative purpose. What the attorney will anticipate will, to some extent at least, depend on the interest of the spouse he represents. The grantor, given the benefit of hindsight and a clear understanding of the import of the Ball decision, can hardly be expected to admit the conveyance was unqualified any more than a grantee can be expected to readily admit that a gift was not intended.

The Ball decision makes no distinction whatever between marriages of long or short duration. Its result depends on the source of the consideration. The harsh consequences of the application of the rule are obvious.

The Ball decision has troubled trial judges and the appellate courts have strained to sustain them. In Parramore v. Parramore, 368 So.2d 1308 (Fla. 1st DCA 1978), the First District Court of Appeal, while noting that Ball limited its retroactive effect to “dissolution proceedings” instituted prior to Ball, explained that the supreme court had clearly intended that Ball not have retroactive effect. The court then concluded that Ball was inapplicable because at the time the deed was executed, delivered and recorded, the law was to the effect that the husband was presumed to have intended a gift of an entireties interest to his wife. See also Hart v. Hart, 377 So.2d 51 (Fla. 2d DCA 1979).

However, in Laws v. Laws, 364 So.2d 798 (Fla. 4th DCA 1978), the Fourth District applied the Ball principle even though the tenancy by the entirety had been created in 1968. The opinion, however, did not discuss the issue addressed by the courts in Parramore and Hart. While the argument can be persuasively maintained that the supreme court intended to limit Ball only to litigation instituted subsequent to the effective date of the decision, we shall follow the interpretation expressed in Parramore that the Ball decision is not to have any retroactive application.

We respectfully suggest that the supreme court revisit Ball and reconsider its effect. We know of no decision in the domestic relations area more likely to encourage litigation.

In the case sub judice, all conveyances were prior to Ball v. Ball and the rule announced in Parramore applies. This decision conflicts with Laws v. Laws.

AFFIRMED.

ORFINGER, J., and MELVIN, WOODROW M., Associate Judge, concur.


source: Caselaw Access Project

license: Public Domain

text:
    Carlton Everett WILKINSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 79-273.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 1980.
    James B. Gibson, Public Defender, and Ronald K. Zimmett, Chief, Appellate Division, and Christopher S., Quarles, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from an order of the Circuit Court for Orange County withholding adjudication of guilt and placing appellant on probation.

The only question with which we are concerned is whether the trial court erred in prohibiting appellant, as a condition of probation, from living with a female to whom he is not married or related.

We agree that the condition was improper and strike it. The order appealed is otherwise affirmed.

The Second District Court of Appeal in Rodriguez v. State, 378 So.2d 7, 9 (Fla. 2d DCA 1979), enunciated a test for determining whether a condition of probation is reasonably related to rehabilitation. The court said a condition is invalid if it:

(1) has no relationship to the crime of which the offender was convicted;
(2) relates to conduct which is not in itself criminal, and
(3) requires or forbids conduct which is not reasonably related to future criminality.

Here, appellant pled nolo contendere to a charge of carrying a concealed firearm. The condition imposed bears no reasonable relation to the crime of which appellant was convicted.

Accordingly, we hold the condition prohibiting defendant from living with a female to whom he is not married or related is invalid and strike this condition from the order appealed. The order is otherwise affirmed as modified.

DAUKSCH, C. J., and COBB, J., concur.

      . See also Wiggins v. State, 386 So.2d 46 (Fla. 4th DCA 1980), holding a condition of probation prohibiting sexual intercourse with one other than appellant’s lawfully married spouse to be an improper condition of probation after conviction for forgery.


author: FRANK D. UPCHURCH, Judge.

text:
    John Henry BATTLE, Appellant, v. STATE of Florida, Appellee.
    No. 80-493.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 1980.
    John Henry Battle, pro se.
    No appearance for appellee.
   FRANK D. UPCHURCH, Judge.

Appellant, while an inmate at Polk Correctional Institute, filed pro se a notice of appeal to review an order summarily denying relief under Rule 3.850, Florida Rules of Criminal Procedure. Although the notice was filed one day late, this court granted appellant the right to take a belated appeal. See Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967), cert. denied, 391 U.S. 968, 88 S.Ct. 2040, 20 L.Ed.2d 882 (1968).

Appellant contends his fourteenth amendment right to due process was violated when an impermissibly suggestive photo pack was exhibited to witnesses prior to the line — up. A motion to vacate a judgment and sentence is defective where the ground alleged was known to the defendant at the time of sentencing and was properly presentable on a direct appeal which defendant did or could have taken. Johnson v. State, 364 So.2d 118 (Fla. 1st DCA 1978); Burau v. State, 353 So.2d 1183 (Fla. 3d DCA 1977). If the matter forming the basis of the motion to vacate was known to the defendant at the time of trial, it will not support a collateral attack on the judgment of conviction since such a motion may not be used as a substitute for appeal. Burau at 1185.

Appellant contends this ground was not preserved for direct appeal because of the alleged incompetency of his privately retained counsel. It has recently been held by the United States Supreme Court that when an issue of ineffective assistance of counsel is raised, there must be no distinction between state-provided and privately retained counsel. Cuyler v. Sullivan, ___ U.S. ___, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In Spencer v. State, 389 So.2d 652 (Fla. 1st DCA 1980), the First District Court of Appeal applied this rule of constitutional law although it found that the allegations in appellant’s Rule 3.850 motion concerning the ineffectiveness of his retained counsel were so vague and conclusory as to obviate the need for an evidentiary hearing on the issue.

Such vagueness does not exist in the present case and since denial of effective dssistance of counsel is an issue appropriate for collateral relief, Gunn v. State, 378 So.2d 105 (Fla. 5th DCA 1980), this matter must be remanded to the trial court with instructions (a) to attach that portion of the record which refutes the allegations, or (b) to conduct an evidentiary hearing. Meeks v. State, 382 So.2d 673 (Fla.1980); Gunn v. State.

The order denying relief is quashed and this cause is remanded with instructions.

COBB and SHARP, JJ., concur.


author: ORFINGER, Judge.

text:
    Johnnie Lee DISMUKE, Appellant, v. STATE of Florida, Appellee.
    No. 80-631.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 1980.

      Johnnie Lee Dismuke, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant appeals the summary denial of a pro se motion for post-conviction relief under Rule 3.850, Florida Rules of Criminal Procedure. Appellant’s conviction was previously affirmed by this court without opinion. Dismuke v. State, 380 So.2d 603 (Fla. 5th DCA 1980).

Appellant states eight grounds upon which he relies for relief. Seven of these grounds assert alleged trial errors, all of which were either raised or could have been raised on direct appeal. It is the law of this state that relief under Rule 3.850 is not available as to any matters which were raised on direct appeal or which could have been raised on direct appeal. Mitchell v. State, 381 So.2d 760 (Fla. 5th DCA 1980); Merrill v. State, 364 So.2d 42 (Fla. 1st DCA 1978), cert. denied, 372 So.2d 470 (1979); Burau v. State, 353 So.2d 1183 (Fla. 3d DCA 1977). Attached to the order entered below is a copy of the statement of judicial acts to be reviewed, filed in the original appeal, which asserts twenty seven acts of the trial court alleged to be erroneous, and the seven grounds referred to above are included therein.

The eighth ground of the motion alleges that defendant was denied effective assistance of counsel. The factual statement supporting this ground asserts that defendant requested new counsel because his public defender would not take depositions, would not file a motion to dismiss the charges and would not file a motion that the trial judge recuse himself. In denying relief on this ground, the trial court said:

Finally, in regard to this alleged charge of ineffective counsel, because of counsel’s failure to take depositions, the record on appeal, at pages 377 through 393, reveals that defense counsel interviewed witnesses and was an experienced public defender. The fact that defense counsel chose to interview witnesses as opposed to taking formal depositions was a matter of trial strategy and in no way constitutes ineffective counsel. The other matters set forth in ground three are insufficient. Based upon the record in this matter, failure of defense counsel to file any motion to dismiss and any motion to re-cuse the trial judge under Florida Rules of Criminal Procedure 3.320 does not constitute ineffective counsel. See Adams v. State, infra, 380 So.2d 423 at pages 423-425 (Fla.1980).

Attached to the order below is the transcript of the hearing before the original trial judge upon the public defender’s motion for leave to withdraw as counsel for appellant. Appellant asserted then, as he does now, that he wanted another assistant public defender appointed because he was not happy with the way the appointed trial counsel was handling the case. His reasons were the same then as now. The trial judge found that his counsel was the chief trial counsel in the public defender’s office, was competent and experienced, that he had interviewed the witnesses and preferred that method of interrogation to the taking of depositions and that he would not file the motions requested by defendant because they had no merit. The trial judge denied the motion to withdraw.

The denial of the motion to withdraw was an issue which could have been (and actually was) raised on the direct appeal and therefore cannot be considered under Rule 3.850. The record otherwise fails to show any other factual basis upon which the claim of ineffective assistance of counsel is predicated and thus did not require an additional evidentiary hearing. When ineffective assistance of counsel is asserted, the burden is on the person seeking collateral relief to specifically allege and establish the grounds for relief and to establish whether these grounds resulted in prejudice to that person. Meeks v. State, 382 So.2d 673 (Fla.1980); Foxworth v. State, 267 So.2d 647 (Fla.1972), cert. den., 411 U.S. 987, 93 S.Ct. 2276, 36 L.Ed.2d 965 (1973). No such showing is made here.

For the reasons expressed, the order appealed from is

AFFIRMED.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


author: MOORE, Judge. ANSTEAD, Judge,

text:
    STATE of Florida, Appellant, v. David Eugene SCHULTZ, Appellee.
    No. 78-2355.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1980.
    Rehearing Denied Nov. 12, 1980.

      Michael J. Satz, State’s Atty., and Patti Englander, Asst. State’s Atty., Fort Laud-erdale, for appellant.
    James 0. Birr, Jr., Fort Lauderdale, for appellee.
   MOORE, Judge.

This is an appeal by the State from an order granting the appellee’s motion to suppress evidence obtained as a result of a search warrant. The warrant was issued on the basis of warrantless seizure by police of trash bags which had been placed by the appellee, David Schultz, in front of his residence for collection.

The sole issue for our consideration is whether one who places his trash in the swale area in front of his home for collection in accordance with applicable city ordinances governing trash collection maintains a reasonable expectation of privacy in that trash. We hold that he does not and reverse.

On January 26,1978, while conducting an ongoing investigation and surveillance of Schultz’s leased residence, Sergeant Craig Mott of the Sunrise Police Department observed a man exit the garage of the residence and place a total of five green, opaque, secured plastic bags and two silver trash cans on the swale area in front of the residence. Shortly thereafter, the officer confiscated the trash bags, removing them to an area where they were then examined by several officers. Examination revealed twelve partially smoked marijuana cigarettes and a cigarette holder with marijuana residue in it. Based on these findings a search warrant was issued for the premises and curtilage. In granting a motion to suppress the evidence obtained by execution of the warrant, the trial court held that Schultz had a reasonable expectation of privacy concerning the contents of his trash bags until the bags were collected by authorized trash collectors and their contents intermingled with the common trash in the garbage truck.

The essence of the State’s contention is that Schultz, by placing the trash on the swale area for collection, abandoned the trash and relinquished any expectation of privacy which he might have had in the trash. Although noting that there is no Florida case directly on point, the State relies on a line of cases which hold that no search occurs when a person voluntarily abandons an item of property subsequently seized by the police. Mitchell v. State, 60 So.2d 726 (Fla.1952); State v. Oliver, 368 So.2d 1331 (Fla. 3rd DCA 1979); Freyre v. State, 362 So.2d 989 (Fla. 3rd DCA 1978); Smith v. State, 333 So.2d 91 (Fla. 1st DCA 1976); State v. Gallo, 279 So.2d 71 (Fla. 2nd DCA 1973); Riley v. State, 266 So.2d 173 (Fla. 4th DCA 1972); State v. Jackson, 240 So.2d 88 (Fla. 3rd DCA 1970). For the most part, these cases involved attempts to dispose of contraband upon the approach of police authorities:

Central to this line of cases is the court’s conclusion that the police seizure of such evidence does not invade a reasonable expectation of privacy belonging to the person in question. In each case, the person has made a voluntary decision to avoid a police search by discarding evidence in an area where he has no Fourth Amendment protection. As a consequence, he cannot later claim that, notwithstanding his conduct, he was the victim of a police search as to the evidence he discarded. State v. Oliver, supra, at 1335.

Notwithstanding the lack of controlling authority directly on point, both sides have cited numerous cases from other jurisdictions on the subject.

The reasoning of the cases holding that a person has no expectation of privacy in trash placed for collection is exemplified in People v. Huddleston, 38 Ill.App.3d 277, 347 N.E.2d 76 (1976):

When defendant placed the trash at curbside for collection, he relinquished control and possession and abandoned it in the sense that he demonstrated an unequivocal intention to part with it forever. Under these circumstances, defendant must be held to have assumed the risk that the rubbish collector may permit the police to examine the trash, as in Croker, supra, or that the police themselves may seize the trash, as in Fassler and Mustone, supra. 347 N.E.2d at 80-81.

The holding in Huddleston is apparently in line with the majority of the jurisdictions which have considered this issue. See, United States v. Vahalik, 606 F.2d 99 (5th Cir. 1979), cert. denied, 444 U.S. 108, 100 S.Ct. 1034, 62 L.Ed.2d 765 (1980); United States v. Crowell, 586 F.2d 1020 (4th Cir. 1978), cert. denied 440 U.S. 959, 99 S.Ct. 1500, 59 L.Ed.2d 772 (1979); United States v. Shelby, 573 F.2d 971 (7th Cir. 1978), cert. denied 439 U.S. 841, 99 S.Ct. 132, 58 L.Ed.2d 139 (1978); United States v. Alden, 576 F.2d 772 (8th Cir. 1978), cert. denied 439 U.S. 855, 99 S.Ct. 167, 58 L.Ed.2d 161 (1978); Magna v. Benson, 536 F.2d 111 (6th Cir. 1976) (Per Curiam); United States v. Mustone, 469 F.2d 970 (1st Cir. 1972); United States v. Dzialak, 441 F.2d 212 (2nd Cir. 1971), cert. denied, 404 U.S. 883, 92 S.Ct. 218, 30 L.Ed.2d 165 (1971); United States v. Minker, 312 F.2d 632 (3rd Cir. 1962), cert. denied, 372 U.S. 953, 83 S.Ct. 952, 9 L.Ed.2d 978 (1963). See also, State v. Austin, 584 P.2d 853 (Utah 1978); People v. Klausing, 41 Ill.App.3d 588, 353 N.E.2d 441 (1976); Willis v. State, 518 S.W.2d 247 (Tex.Crim.App.1975); Smith v. State, 510 P.2d 793 (Alaska 1973); Croker v. State, 477 P.2d 122 (Wyo.1970).

The contrary view is illustrated in People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262 (1971), vacated, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972), reaffirmed, 8 Cal .3d 623, 105 Cal.Rptr. 521, 504 P.2d 457 (1973):

The placement of one’s trash barrels onto the sidewalk for collection is not, however, necessarily an abandonment of one’s trash to the police or general public. To the contrary, many municipalities have enacted ordinances which restrict the right to collect and haul away trash to licensed collectors, whose activities are carefully regulated. (See e. g., Los Ange-les County Ord.No. 5860, ch. IX, §§ 1611-1622, 1681-1691). Moreover, these ordinances commonly prohibit unauthorized persons from tampering with trash containers. (Id., § 1710). The provisions of these ordinances would appear to refute the view that the contents of one’s trash barrels become public property when placed on the sidewalk for collection. Aside from municipal ordinances, there may exist an additional element of expected privacy whenever one consigns his property to the trash can, to be dumped, destroyed and forgotten. As stated in Edwards, “The marijuana itself was not visible without ‘rummaging’ in the receptacle. So far as appears defendants alone resided at the house. In the light of the combined facts and circumstances it appears that defendants exhibited an expectation of privacy, and we believe that expectation was reasonable under the circumstances of the case. We can readily ascribe many reasons why residents would not want their castaway clothing, letters, medicine bottles or other telltale refuse and trash to be examined by neighbors or others, at least not until the trash had lost its identity and meaning by becoming part of a large conglomeration of trash elsewhere. Half truths leading to rumor and gossip may readily flow from an attempt to ‘read’ the contents of another’s trash.” (Emphasis supplied; People v. Edwards, supra, 71 Cal.2d 1096, 1104, 80 Cal.Rptr. 633, 638, 458 P.2d 713, 718). 96 Cal.Rptr. at 68, 486 P.2d at 1268.

Although we are impressed with the argument that “half truths leading to rumor and gossip may readily flow from an attempt to ‘read’ the contents of another’s trash”, we are not persuaded by Krivda. The Fourth Amendment protects individuals from unreasonable searches or seizures by agents of the government, not from intrusion from neighbors or others. There is no dispute here that a seizure by the police did occur. Thus, we must determine whether the actions of the police were reasonable. In doing so, it is necessary to discuss abandonment, not in the sense of personal property concepts, but rather as it relates to an expectation of privacy.

As stated in Huddleston, supra,
[T]he location of the trash is a significant factor in determining whether defendant has abandoned the trash or whether defendant has a “reasonable expectation of privacy,” because any analysis of that expectation is inextricably bound up in the physical location of the trash. As was stated in Patler v. Slayton, (4th Cir. 1974), 503 F.2d 472, 478:
“The maxim . . . that the fourth amendment protects ‘people not places’ is the only limited usefulness, for in considering what people can reasonably expect to maintain as private we must inevitably speak in terms of places.” Huddleston, supra, at 80.

Some locations give rise to a greater and more reasonable expectation of privacy than others. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,19 L.Ed.2d 576 (1967). Thus, in Ball v. State, 57 Wis.2d 653, 205 N.W.2d 353 (1973), location (trash at the rear of defendant’s property) was the court’s primary concern in finding no indication that the defendant intended' to relinquish control and possession. And in Ever-hart v. State, 274 Md. 459, 337 A.2d 100 (1975), a conviction was reversed and the case remanded for determination of the defendant’s legitimate expectation of privacy in the area where the search occurred.

Abandonment of personal property is the intention to part with the property forever. While an individual may demonstrate an intention to forever part with his trash by placing it in a container at the rear of his home or in a garage or carport, he may still harbor a reasonable expectation of privacy in it in the sense that it is retrievable. We are of the view, however, that once the trash Is deposited on the swale for collection it is unreasonable to expect that its security will remain inviolate until it is commingled with all other trash. As the Court stated in United States v. Mustone, supra, “Implicit in the concept of abandonment is a renunciation of any ‘reasonable’ expectation of privacy in the property abandoned. The contrary suggestion strikes us as anomalous.” 469 F.2d at 972.

The order granting the motion to suppress is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

DOWNEY, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

At issue is whether the police, without any legal cause, may trespass upon a person’s private property and conduct a search thereon of the owner’s sealed trash containers after the containers have been placed upon the front of the owner’s property to be picked up by authorized trash collectors.

My reaction to this issue is the same as that of Judge Butter worth who commented as follows when he ruled that such police activity was improper:

It’s reasonable for anyone to expect that no one is going to go through your trash, that the police will not pick up trash from a swale when an ordinance says only the licensed trash collectors can pick it up. A lot of times, the Court is not a hundred percent sure of the case, but at this time, the Court is ninety-nine point six percent sure.

I think the trial court’s comments and ruling display not only good common sense but more importantly, good legal sense.

It is clear that under existing Florida case law on abandonment that Schultz did not “abandon” his trash containers so as to permit a warrantless search and seizure by the police. See State v. Oliver, supra, as quoted in the majority opinion. The disposal of the trash did not take place in the face of an imminent threat of arrest or seizure by the police, the trash was not discarded in an area where the appellant had no Fourth Amendment protection, and, at the time of the seizure, the owner had not relinquished possession and control of the trash. State v. Oliver, supra. Schultz was not even aware of the approach of the police, he was entitled to Fourth Amendment protection on his own property, and he had constructive possession of the trash containers situated on his property and the right to retrieve the contents thereof, right up until the time those containers were to be removed by authorized trash collectors. The abandonment exception to the warrant requirement simply doesn’t fit.

The heart of the state’s contention is that Schultz, by placing his trash containers out for collection, impliedly relinquished any expectation of privacy which he might have had therein. I cannot agree. As the United States Supreme Court stated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967): U

What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public may be constitutionally protected.

This view was reiterated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968):

[Wjherever an individual may harbor a ‘reasonable expectation of privacy,’ (citation omitted) he is entitled to be free from unreasonable governmental intrusion.

In the recent case of Hansen v. State, 385 So.2d 1081 (Fla. 4th DCA 1980), this court relied upon Katz, supra, in upholding a houseguest’s right of privacy in his host’s backyard. More importantly, it was noted in Hansen that police officers who observed the backyard activities from an adjacent neighbor’s yard, were simply trespassers who had no right to be where they were when they observed the alleged illegal activity. A similar conclusion is mandated here where the police were also trespassers and had no right to be where they were when they searched and seized Schultz’s trash containers.

In my view, a homeowner, upon placing items in a closed garbage container and placing the container in a position on his property where the container can be conveniently removed by authorized trash collectors, is entitled to reasonably expect that the container and the trash therein will be removed from his property only by those authorized to do so, and that such trash will be disposed of in the manner provided by ordinance or private contract. By sealing the containers in a secure manner and placing the containers on his own property, the owner has done everything within his own means to insure the privacy of the contents thereof, short of delivering the containers to a central disposal site himself.

While it is true that one cannot reasonably expect trash containers to be completely safe from the probing of dogs, curious children, the trash collectors themselves, and possibly others, common sense tells us that one should be able to expect that his property and the trash containers will be free from search and seizure by the police, neighbors and others who are and should be more knowledgeable and respectful of the property and privacy rights of others. The fact that dogs or others may occasionally, and wrongfully, trespass upon private property and go through one’s “private” trash does not justify others in doing so. We should still be mindful of the adage that two wrongs do not make a right. Moreover, we are simply not involved here with the accidental disclosure of contraband because of the activities of dogs, children, or trash collectors.

Many of the cases, including the majority opinion here, seem to make a distinction if the garbage receptacle is located at the rear of or near the residence. Thus, it could be concluded that when trash collectors pick up the trash from the rear of the property there is no abandonment. But when local governmental regulations or private contracts require that property owners place the containers at or near the street for collection, ipso facto the owner has abandoned the contents. I think this distinction is pure fiction. In most cases trash is “abandoned” at the time it is first placed in a trash container. However, possession of the trash is not given up until the authorized trash collector removes it from the owner’s property, so that there is no less, or more, possession of trash in containers located near the residence, than there is of containers located at the front of the property. The right to retrieve the trash and constructive possession of the trash containers is maintained by the owner right up until the time the trash is removed by authorized collectors.

Unquestionably, there is a very respectable line of authority which has held that there is no reasonable expectation of privacy available in the factual situation presented in this case. And, once evidence of illegal activity is detected, there is a natural tendency to soften the constitutional strictures against unreasonable searches. However, I think the average person does, in fact, have an expectation of privacy in this situation, and the pervasiveness of that expectation demonstrates its reasonableness. Consider the average citizen who, upon the occasion of taking his trash out to the front of his property on the day appointed for collection, reenters his house and almost immediately notices his next door neighbor rushing out to rifle through the trash that is contained in covered containers. What would his reaction be? I suggest he would be absolutely incensed. Assuming this conclusion is correct, there must be some sound reason therefor. The obvious reason is that, when people place their trash at a location near the street for accessibility by the trash collector, they do not intend to make the personal contents contained therein a matter for public scrutiny. The thought of one’s neighbor having carte blanche to sift through one’s trash to read one’s discarded mail, to note one’s discarded pill or whiskey bottles, or other more intimate items of domestic use is so abhorrent that the question in this case would seem to answer itself.

I posit the example of one’s neighbor rather than the police because I think it serves to demonstrate the weakness of the suggestion that the placing of one’s trash at a location designated by local government for collection means one has abandoned it and no longer has any expectation of privacy there. The principle, of course, applies equally to the police. If one has not abandoned the right of privacy in his trash to his neighbor, he certainly has not abandoned it to persons involved in law enforcement.

Consistent with our obligation to uphold the provisions of the federal and state constitutions prohibiting unreasonable searches and seizures of real and personal property, I believe we should require police authorities to establish the same legal cause usually required to justify a search of private property before entering such property to seize and search the trash containers of the property owner. Because it is undisputed that no such cause existed here I must dissent.

      . See footnote 4 on page 1086 of Hansen v. State, supra.

      . See footnote 5 on page 1086 of Hansen v. State, supra.


author: PER CURIAM.

text:
    David REID and the Department of Revenue, State of Florida, Appellants, v. EXPORTS, INC., and the Palm Beach County Board of Tax Adjustment, Appellees.
    No. 79-503.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1980.
    Jay R. Jacknin of Christiansen, Jacknin & Meyers, Palm Beach, for appellant David Reid.
    Jim Smith, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., Tallahassee, for appellant Department of Revenue.
    William J. Bosso of Bosso & Bosso, Riviera Beach, and Mark B. Packer of Nelle & Packer, Bellingham, Wash., for appellee Exports, Inc.
   PER CURIAM.

The trial court ruled that the inventory owned by the appellee, Exports, Inc. and stored in U.S. Customs bonded warehouses solely for export from the United States was not subject to state and ad valorem taxation. On the authority of the following cases we believe the trial court’s ruling was correct: McGoldrick v. Gulf Oil Corporation, 309 U.S. 414, 60 S.Ct. 664, 84 L.Ed. 840 (1940); Epstein v. Lordi, 261 F.Supp. 921 (D.N.J.1966), affirmed 389 U.S. 29, 88 S.Ct. 106, 19 L.Ed.2d 29 (1967); District of Columbia v. International Distributing Corporation, 118 U.S.App.D.C. 71, 331 F.2d 817 (1964); District of Columbia v. Samuel Meisel & Co., Inc., 316 A.2d 546 (D.C.App.1974); Ammex Warehouse Company of San Ysidro, Inc. v. Department of Alcoholic Beverage Control For the State of California, 224 F.Supp. 546 (S.D.Cal.1963); Division of Beverage, Department of Business Regulation v. Bonnanni Ship Supply, Inc., 356 So.2d 308 (Fla.1978); National Distillers Products Corporation v. City and County of San Francisco, 141 Cal.App.2d 651, 297 P.2d 61 (1956), cert. denied 352 U.S. 928, 77 S.Ct. 227, 1 L.Ed.2d 163 (1956).

Accordingly, the judgment of the trial court is affirmed.

LETTS, C. J., and ANSTEAD and MOORE, JJ., concur.


author: HERSEY, Judge.

text:
    Matley BALDWIN, Appellant, v. Oswald BALDWIN, Appellee.
    No. 79-2215.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1980.

      Robert F. Eimers of Eimers & Jerome, Deerfield Beach, for appellant.
    Samuel A. Thomas of Thomas & Cassidy, West Palm Beach, for appellee.
   HERSEY, Judge.

This appeal is brought by the former wife contesting that portion of a final judgment in dissolution proceedings awarding her $100.00 per month for twenty — four months as rehabilitative alimony and $30.00 per week for each of three minor children by way of child support.

The trial court, having heard the testimony and observed the other evidence and the parties at first hand, is in a much better position to determine the needs of the wife and children and the ability of the parties to pay than is an appellate court. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976). Because reasonable men could differ as to the correctness of the amount of both awards, no abuse of discretion has been demonstrated. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

We therefore affirm.

AFFIRMED.

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


author: CAMPBELL, Judge.

text:
    John E. UNDERWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 80-117.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1980.

      John C. Wilkins, III, and Kelly W. Collier of Wilkins & Moorman, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Underwood appeals his judgment and sentence following a jury trial. He raises two issues in this appeal: (1) Whether the trial court erred in refusing to allow defense counsel to conduct a voir dire examination of the prospective jurors, and (2) whether the trial court erred in its response to a jury question.

The second point is without merit. Any error in this regard was waived by defense counsel at the trial.

The facts which relate to the first point are as follows: The court stated that it was going to conduct the voir dire examination exclusively “unless there are some compelling questions that counsel feels must be asked.” Defense counsel stated that he personally had no objection but tactically and formally for the record did object. Following the trial judge’s voir dire examination, the judge asked if there was “[anything in particular” and defense counsel replied “not as far as specific questions, but I do continue for the record the same objection.” Counsel then requested that the court ask a particular question, which it did.

Florida Rule of Criminal Procedure 3.300(b) provides for examination of the prospective jurors by the court first with each counsel being permitted to “propound pertinent questions” to the prospective jurors after the court’s examination. Florida Rule of Criminal Procedure 3.300(b) is quite different from Florida Rule of Civil Procedure 1.431(b), wherein there is specifically preserved the right of counsel for the parties to examine jurors orally on voir dire. Rule 1.431(b) provides that the court is then allowed to ask additional questions. While recognizing the differences in the two rules and what also may be a subtle distinction in the language of Rule 3.300(b) where it provides for the court to “examine” prospective jurors and for counsel to be “permitted to propound pertinent questions” to them, we interpret Rule 3.300(b) to allow counsel the opportunity to ask orally “pertinent questions” on voir dire except where the exigencies of the particular case dictate otherwise. Broad discretion over the extent and nature of questions asked by counsel is conveyed to the court by the use of the word “pertinent.”

While this holding that Florida Rule of Criminal Procedure 3.300(b) does envision counsel having input into the voir dire examination by allowing them to ask orally questions of prospective jurors which the court finds are pertinent, in the instant case defense counsel was not denied that right when he stated he had no specific questions to ask of the jury except one which was then asked by the court. This procedure constituted substantial compliance with Rule 3.300(b) and we, therefore, affirm the judgment and sentence.

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


author: GRIMES, Judge.

text:
    Paul A. STRASKE, Raymond C. Farfante, Jr., and Stanley N. Pinder, Appellants, v. Cornelius McGILLICUDDY, Jr., and Cornelius McGillicuddy, III, Appellees.
    Nos. 80-630, 80-631 and 80-679.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1980.

      Gary R. Trombley, Tampa, for appellants Straske and Farfante.
    Claude H. Tison, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant Pinder.
    James M. Barclay, Cape Coral, for appel-lees.
   GRIMES, Judge.

Appellants seek review of a nonfinal order denying their motions to dismiss or transfer on the grounds of improper venue.

Cornelius McGillicuddy, Jr. and Cornelius McGillicuddy, III, both residents of Lee County, filed a complaint against Raymond Farfante, Muriel McLeran, International Holding Company, and ten John Doe defendants in the circuit court for Lee County. The complaint alleged that McLeran, a trustee in bankruptcy in the United States District Court in Tampa, Farfante, her attorney, and the ten John Doe defendants had conspired to acquire a promissory note that was the property of an estate in a pending bankruptcy proceeding. It further alleged that the McGillicuddys had suffered damages as a result of the conspiracy by being denied an opportunity to bid on the note.

Farfante and McLeran responded to the complaint, asserting their immunity from suit for acts done in their official position pursuant to the federal bankruptcy act. The McGillicuddys then moved to add as party defendants Paul Straske, Farfante’s law partner, and Stanley Pinder, Farfante’s client who owned the stock of International Holding Company. The amended complaint made substantially the same claim as before concerning the conspiracy to purchase the note.

After the court granted the motion, the new parties, Straske and Pinder, filed motions to dismiss the action for improper venue or alternatively to transfer venue to Hillsborough County. Even though he had answered the original complaint, Farfante also filed a similar motion attacking venue. The motions were accompanied by supporting affidavits which demonstrated that no defendant resided in Lee County. With the exception of McLeran, who resided in Collier County when the action was brought and now resides in Calhoun County, all the defendants were Hillsborough County residents and the corporate defendant had its offices in Hillsborough County. The court denied the motions of Farfante, Straske and Pinder, which prompted them to institute this appeal.

As always, in cases which deal with questions of venue, we must consider Section 47.011, Florida Statutes (1979). That section provides that actions may be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. In the present case, none of the defendants live in Lee County, and there is no property in litigation. Accordingly, in order to support the court’s ruling that venue lies in Lee County, it would be necessary to find that the McGillicuddys’ cause of action accrued there. This is what the McGillicuddys argue, but we must reject their contention.

Assuming that the amended complaint states a cause of action, it is one sounding in tort. A cause of action for tort arises at the place where the act creating the right to bring the action occurred. See Proctor v. Commercial Bank of Okeechobee, 373 So.2d 943 (Fla. 4th DCA 1979); Hammond v. Potito, 197 So.2d 40 (Fla. 2d DCA 1967). Here, the cause of action arose in Hillsborough County because all of the activity surrounding the tort occurred in that county. It was the site of the bankruptcy court, and the defendants Farfante and Straske practice law there. The purported conspiracy was formed there, and the acts alleged to have been done in furtherance of the conspiracy all occurred there. The contention that the failure of the trustee or her lawyer to respond to the McGillicuddys’ letter evincing an interest in bidding on the note constituted activity in Lee County sufficient for the purpose of venue is without merit.

Having determined that the court erred in ruling that Lee County was the proper site for the lawsuit, it follows that the court erred in denying the motions of appellants Straske and Pinder. However, the same cannot be said as to appellant Farfante. By filing a responsive pleading to the McGillicuddys’ complaint before he filed his motion concerning venue, Farfante waived his right to object to venue. Largen v. Greenfield, 363 So.2d 573 (Fla. 2d DCA 1978); Fla.R.Civ.P. 1.140(h)(1).

In view of what we have said, we reverse the denial of appellants Straske and Pin-der’s motions and remand the case to the trial court for further proceedings consistent with this opinion.

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

      . Florida Rule of Appellate Procedure 9.130(a)(3)(A) permits appeals from nonfinal orders which concern venue.

      . If any one defendant resided in Lee County, venue would properly lie there. § 47.021, Fla. Stat. (1979).

      . In this connection, we note that because Mr. Straske and Mr. Pinder have an absolute right to be sued in Hillsborough County, the court will have to transfer the entire case to that county unless appellants exercise their option to dismiss them from the suit.


text:
    CITY OF JACKSONVILLE FIRE DIVISION and Gallagher Bassett Insurance Service, Appellants, v. Mitchell J. McDANIEL, Appellee.
    No. RR-67.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1980.

      Dawson A. McQuaig, Gen. Counsel, and William Lee Allen and Grady W. Martin, Asst. Counsel, Jacksonville, for appellants.
    John D. Rawls of Thames & Rawls, Jacksonville, for appellee.
   PER CURIAM.

The employer and carrier appeal the judge of industrial claims’ award of 66 percent permanent partial disability (based on 25 percent physical impairment to the body as a whole and 20 to 40 percent psychological impairment) and award of fees to the psychologist who testified for the claimant. Appellee, in turn, cross-appeals that he should have been found permanently, totally disabled and that the interest rate on the award should have been 12 percent instead of six percent. We reverse in part.

McDaniel, a combat firefighter (periodically called upon to handle medical emergencies and rescues), injured his back in a 1976 on-the-job accident. After a laminec-tomy, he was released with a ten percent permanent partial disability rating in February 1977. He suffered a second job-related back injury in November 1977, and after yet another laminectomy his doctor stated he had a 25 percent permanent disability to the body as a whole.

A psychologist, Dr. Reynolds, found ap-pellee to have a 20- to 40 percent permanent psychological disability caused by the accidents and his physical injuries. Dr. Reynolds said McDaniel, because of the psychological damage from his injuries, should not continue his current employment (he was still a combat firefighter at the time of the hearing). The key testimony, however, was Dr. Reynolds’ statement that there was a chance appellee would improve with further psychological or psychiatric treatment but had rejected such treatment. The psychologist said appellee should not be ordered to undergo more treatment because he would only resist it and thereby render it useless. The JIC accepted Dr. Reynolds’ evaluation and found appellee permanently, partially disabled, as described above.

We reverse the award because it has not been satisfactorily demonstrated that appellee could not respond to further psychological care, so a permanency finding was premature. An injured worker may be denied benefits when she or he unreasonably refuses to undergo treatment “which does not involve serious suffering or danger of serious harm ....” Twisdale v. Womack & Martel, 148 So.2d 21, 24 (Fla.1962). Before the JIC may award permanent partial benefits in this case, further treatment must be attempted. If after a period of treatment appellee shows no improvement, then the requirement of Twisdale, supra, will have been met and the JIC may award an appropriate percentage of permanent disability.

Our holding on this issue resolves two of appellant’s three points and both of appellee’s points on cross-appeal. As to the award of Dr. Reynolds’ fee, because his examination and testimony provided direct input into the JIC’s deliberations in this case, the fees were properly taxed as costs against the employer/carrier.

Reversed in part and remanded for further proceedings consistent with this opinion.

MILLS, C. J., and McCORD and WENT-WORTH, JJ., concur.


author: THOMPSON, Judge.

text:
    MUNROE MEMORIAL HOSPITAL and All Risk Corp. of Florida, Appellants, v. Ella Mae THOMPSON, Appellee.
    No. RR-97.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1980.
    Bruce R. Raster of Pattilo, MacKay & McKeever, P.A., Ocala, for appellants.
    Charles C. Hurt, Orlando, for appellee.
   THOMPSON, Judge.

The appellants challenge a compensation order, contending that they did not receive adequate notice of the nature of the employee’s claim for compensation, and that there was a lack of competent substantial evidence to support the judge’s findings. We agree and reverse.

On November 9, 1977, the claimant slipped and fell in a work-related accident. A claim was filed on May 22, 1978, stating that the injury was a “popped right knee cap.” This claim was dismissed without prejudice on December 21, 1978. A new claim was filed on December 22, 1978, stating that the injury was a “hurt low back.” On March 1, 1979, a Notice of Hearing was sent to the parties, stating that the subject of the hearing would be a “determination of claimant’s benefits.” On June 6, 1979, the hearing was held, and on July 31, 1979, the Judge of Industrial Claims (“JIC”) entered his Order, finding inter alia that the claimant sustained a 5% permanent partial disability to the lower right extremity. The appellants were ordered to pay to the claimant temporary total disability and permanent partial disability compensation.

This court has recognized that “due process problems arise when the [JIC] undertakes to rule on issues not framed by the parties.” Farm Stores v. Dyrda, 384 So.2d 269 (Fla. 1st DCA 1980). Here, the claim stated that the injury was a “hurt low back.” Although the Notice of Hearing stated that the subject thereof would be a “determination of claimant’s benefits,” it is clear that this “determination” refers to the effect of the alleged back injury. However, the JIC’s Order is patently based on evidence relating to a knee injury, and in fact, the JIC awarded compensation for a knee injury. The appellants properly complain of a lack of adequate notice regarding a claim based on such an injury, see Fla.Stat. § 440.19(l)(c) (1977), thereby resulting in a denial of appellants’ rights to due process. Additionally, an Order that is not in accord with the understanding with which the hearing was undertaken and participated in is a denial of due process and must be reversed. La Mer Coffee Shop v. Taylor, IRC Order 2-3531 (Sept. 11, 1978).

Even assuming that the hearing and the JIC’s Order were preceded by adequate notice, reversal would still be required because there is no competent substantial evidence showing a causal connection between the claimant’s work-related accident and her later physical disabilities. See City of Jacksonville Police Dept. v. Hobbs, 246 So.2d 561-62 (Fla.1971). One doctor could not state the cause of the claimant’s knee condition, while the testimony of another doctor in this respect has no probative value because it was not based on facts supported by the evidence. See Geiger Distributors Inc. v. Snow, 186 So.2d 507, 509 (Fla.1966).

The only probative evidence relating to the cause of the claimant’s knee and back problems came from the claimant herself. A careful review of the record reveals that her testimony failed to establish a causal connection between her accident and her later physical disabilities. Therefore, there was no basis for an award of permanent partial disability based on the claimant’s accident. As to the award of temporary total disability, the evidence clearly shows that the claimant was not disabled; that she continued to work after her accident; that she was fully capable of working after her employment was terminated by the hospital; and that her subsequent unemployment was the result of her own volition. Thus, the JIC erred in ordering the payment of temporary total disability compensation. See Hollywood, Inc. v. Brust, 9 FCR 367, 368 (1976).

Our reversal of the JIC’s Order also results in the reversal of the JIC’s award of attorney’s fees for the claimant’s counsel. Finally, we note that the claimant has requested an award of attorney’s fees for representation on this appeal. In view of the disposition of this appeal, the request must be denied. But even if this appeal had resulted in a favorable ruling for the claimant, the request for attorney’s fees would still be denied because that request was presented in the claimant’s brief, rather than by filing a separate motion. See Florida Dept. of Commerce, Div. of Risk Management v. Davies, 379 So.2d 1313 (Fla. 1st DCA 1980); Wallace v. Walton Context Building, 383 So.2d 729 (Fla. 1st DCA 1980).

MILLS, C. J., and McCORD, J., concur.


text:
    ELI WITT COMPANY, as successor to Havatampa Corporation, Appellant, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. SS-495.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1980.
    Ronald C. LaFace of Roberts, Miller, Baggett, LaFace, Richard & Wiser, Tallahassee, for appellant.
    Harold F. X. Purnell, Gen. Counsel, Dept, of Business Regulation, Tallahassee, for ap-pellee.
   PER CURIAM.

The Department of Business Regulation promulgated Rule 7A-10.25, Florida Administrative Code for 1976, interpreting § 210.05(3)(a), Florida Statutes (1975). The rule resulted in the allowance of a 2.9% discount on tax collected by each wholesale cigarette dealer rather than a discount to each of the dealer’s branch locations as had been the customary practice.

Eli Witt Company brought a rule challenge to recover $64,000 in cigarette taxes paid under protest in 1976. The hearing officer determined that the rule was valid and recommended against a refund. In 1977 the Legislature enacted Chapter 77-421, Laws of Florida, which directed that the discount apply to each location; thus effectively nullifying the rule.

The final order of the Division of Administrative Hearings upholding the validity of Rule 7A-10.25 is affirmed. The rule is a logical interpretation of the statute, properly promulgated through the rule-making procedures of the agency. The rule remained viable until the effective date of Chapter 77-421, Laws of Florida, which did not have retroactive application.

We accordingly affirm.

ROBERT P. SMITH, Jr., BOOTH and SHAW, JJ., concur.


text:
    Adolph COMER, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. WW-82.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1980.
    Adolph Comer, pro se.
    No appearance for respondent.
   PER CURIAM.

The petitioner, a prisoner within the custody of the Florida Department of Corree-tions, seeks the issuance of a writ of habeas corpus, alleging that the Florida Parole and Probation Commission has violated legislative directives in its establishment of certain rules.

While the petitioner claims a jurisdictional base in Chapter 120, Florida Statutes (1979), we find no showing of exhaustion of administrative remedies here. Petitioner is entitled to seek § 120.54(5), F.S., or § 120.-56, F.S., proceedings, which may resolve the issues without resorting to premature judicial intervention. Accordingly, the petition is hereby dismissed without prejudice to seek review pursuant to § 120.68, F.S., of any final orders of the Parole and Probation Commission resulting from Chapter 120 proceedings.

WENTWORTH and JOANOS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.

      . Petitioner asserts that Rule 23-19.02(2)(g), Fla.Admin.Code, violates legislative intent as expressed in s. 947.165(1), Fla.Stat. (1979), in that the rule may act to impose a longer term to serve than is proper by taking certain factors into account more than once. We do not speak to the merits of this claim.


text:
    Jack LOPEZ and Connie Lopez, Appellants, v. Angel DOMINGUEZ, Appellee.
    No. 79-1761.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.

      Howard J. Hochman, Miami, for appellants.
    Shalle Stephen Fine, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Benbow v. Benbow, 117 Fla. 37, 157 So. 512 (1934).


author: SCHWARTZ, Judge.

text:
    John K. PEPPER, Appellant, v. Carolyn R. PEPPER, Appellee.
    No. 79-1838.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.

      George, Hartz & McNary and Charles K. George, Miami, for appellant.
    Proby & Adkins, Professional Ass’n and Lucien C. Proby, Jr., Coral Gables, for ap-pellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

Pepper contends that excessive and unjustified financial obligations were imposed upon him in the final judgment which dissolved the 31 year marriage of the parties. It is true that these requirements are heavy, indeed. Particularly because, however, of the evidence concerning the serious and debilitating mental illness of the wife, as contrasted with the continuing wage-earning ability of the husband, we are unable to find that the trial court abused its discretion (a) in fixing the amount of permanent alimony, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); compare, Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980) and (b) in requiring Mr. Pepper to continue to be responsible for the “required and needed” expenses of the appel-lee’s illness. Thompson v. Thompson, 325 So.2d 480 (Fla. 4th DCA 1975); Lyons v. Lyons, 208 So.2d 137, 139 (Fla. 3d DCA 1968). Nor, in the light of these facts, was there error in the award to the wife of Pepper’s entireties interest in the family domicile, especially since the record also shows that the funds for its purchase were ultimately derived from the sale of the parties’ first marital home which Mrs. Pepper inherited from her mother. Canakaris v. Canakaris, supra; Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980); see Ball v. Ball, 335 So.2d 5 (Fla.1976); Griffin v. Griffin, 375 So.2d 1086 (Fla. 1st DCA 1979); compare, Parham v. Parham, 385 So.2d 107 (Fla. 3d DCA 1980).

We do find merit in the appellant’s remaining contentions. As a result of the terms of the final judgment which we have approved, Mrs. Pepper’s financial situation is markedly superior to the appellant’s. She will receive almost half his net income in alimony and owns the entire interest in the home which was the Peppers’ only real capital asset. Under these circumstances, there was no basis to require the appellant to pay Mrs. Pepper’s attorney’s fees. Pusey v. Pusey, 386 So.2d 269 (Fla. 3d DCA 1980); Bullard v. Bullard, 380 So.2d 1090 (Fla. 3d DCA 1980). Finally, we hold that it was improper to impose upon the appellant the burden of paying the 1978 real estate taxes upon the home which now belongs entirely to his ex-wife. Cf., Smith v. Smith, 378 So.2d 11, 17-18 (Fla. 3d DCA 1979).

The award of attorney’s fees and the provision for the payment of the 1978 taxes are stricken from the final judgment, which is otherwise entirely affirmed..

Affirmed in part, reversed in part.


author: DANIEL S. PEARSON, Judge.

text:
    CHAMPAGNE CHRYSLER-PLYMOUTH, INC., Appellant, v. David GILES, Appellee.
    No. 79-1933.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.

      Lane, Mitchell & Harris and Byron B. Mathews, Jr., Miami, for appellant.
    Charles F. Atwood, III, Miami, for appel-lee.
    Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

For a number of weeks prior to mid-January 1978, Champagne Chrysler-Plymouth, Inc. advertised, in a thirty-second spot commercial on a Saturday television program called Miami All Star Bowling, that it was giving away a new Plymouth Arrow to anyone who bowled a 300 game on the televised program that day. Giles unquestionably was aware of this advertising. Apparently believing that Champagne’s offers could only be withdrawn by a revocation commensurate to the offer itself, Giles, in mid-February 1978, put up his pin money and entered the week-long tournament which culminated with the finals carried, as usual, on the Miami All Star Bowling television show of February 17, 1978. Giles qualified for the finals and, as the reader may have already surmised, threw twelve strikes in a row for a 300 game. Although otherwise rewarded with cash prizes, free Pepsi and the like, Giles called upon Champagne for his just desserts.

Not bowled over by this request, Champagne responded that it had made no offer of an automobile on February 17 and, for that matter, had not been offering such a prize for over a month of Saturdays. Its position, simply stated, was that Giles was aiming at the wrong pocket. Giles sued.

Champagne’s defense was that its offer of a prize on and for a particular Saturday television show meant that it made an offer good for that show only. Since no such offer was made on February 17, the day Giles rolled a 300 game, Champagne had no liability. Giles responded that Champagne had placed mimeographed flyers and printed posters containing its offers in nearly every bowling alley, and some of this advertising was still posted as of February 17. The trial court, viewing Champagne’s earlier offer unrevoked and outstanding as of February 17, and there being no doubt that Giles rolled a 300 game, entered summary judgment as to liability in favor of Giles.

Its bubble thus burst, Champagne appealed. We agree with Champagne that the mimeographed flyer offering a car as a prize for any 300 game bowled on the television program, even if it remained posted on February 17, 1978, expired by its own terms. In the case of a unilateral contract:

“as the obligation is, before acceptance, on one side only, the proposer being bound to comply with his proposal, while the other party is under no obligation, and under no peril until acceptance, the provision of the offer as to time of acceptance is viewed with strictness.” C. W. Kistler v. Hotel Martinique, 44 So.2d 288, 291 (Fla.1950) (emphasis in original).

See also Bullock v. Harwick, 158 Fla. 834, 30 So.2d 539 (1947).

The television commercials and printed posters present a different problem. The present state of the record does not reflect whether these were unilateral offers limiting the time of acceptance by their express terms or were offers requiring revocation. While the trial court was correct that there was no genuine issue of material fact that appropriate revocation did not occur, the issue as to whether revocation was required remained. If, in fact, the television commercials were unilateral contracts, it would not have been necessary for Champagne to take any steps to revoke the offers made by it on prior television programs, since these offers would have expired by their own terms on the dates made and would not have been outstanding as of February 17, 1978. Since the record contains no clear and undisputed evidence of the words used on the television commercials, or the words used on the cardboard poster (purportedly still displayed on February 17) and thus does not eliminate the distinct possibility that these were unilateral contracts requiring no revocation, it was error for the trial court to enter summary judgment for Giles. In this respect, as well as in respect to the issue of whether Giles believed that Champagne’s offer of a car was outstanding as of February 17, we find that there were genuine issues of material fact still extant at the time of the entry of summary judgment.

Accordingly, we reverse the summary judgment entered in favor of Giles and remand this cause for further proceedings consistent with this opinion.

Reversed.

      . The only flyer contained in the record before us, presumably an exemplar, offered the car for the show of Saturday, December 31, 1977.


text:
    Jimmie Lee WILLIAMSON, Appellant, v. The STATE of Florida, Appellee.
    No. 80-48.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.

      Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Susan C. Minor, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

In the course of burglarizing a home on Miami Beach, the defendant — appellant was set upon by its occupants; he was severely beaten, losing three teeth, and was bound hand and foot until the police arrived. After being charged with burglary of an occupied dwelling, “Williamson” negotiated the terms of a guilty plea with the prosecution which were accepted by the court. In accordance with that agreement, on May 14, 1979, he pled guilty and was sentenced to one year in the county jail, followed by three years probation. At the defendant’s request, ostensibly to permit him to complete a job on which he was working at the time, the court granted him until June 1, 1979 to surrender for the service of his jail term. June 1 arrived but Williamson did not. He did not again appear until September 19 when he was taken into custody on the alias capias which had been issued for his arrest. After hearing, his probation was then revoked because of his failure to appear on June 1, and he was resentenced to 15 years in the state prison; the court also retained jurisdiction, pursuant to Section 947.16(3), Florida Statutes (Supp.1978), to “veto” any parole of the defendant before he had served one-third of the sentence. On this ensuing appeal, we affirm the sentence, but reverse the retention of jurisdiction.

Williamson-Griffin’s primary contention is that his probation was erroneously revoked because the failure to surrender was not technically in violation of any of the stated conditions of the order of probation; indeed, the appellant points out that when the plea was taken the postponed surrender was expressly stated not to be a special condition of probation, but rather of the plea. See, Morgan v. State, 341 So.2d 201 (Fla. 2d DCA 1977); see also, Donneil v. State, 377 So.2d 805 (Fla. 3d DCA 1979); Sutton v. State, 348 So.2d 626 (Fla. 3d DCA 1977). We agree with the factual premises of the appellant’s argument but not with his conclusion. Since Williamson’s probationary term, which was to follow his year in jail, had not yet begun, he could not have been in violation of any of its express terms prior to that time-even if he had committed a first degree murder while at liberty. The issue therefore is whether probation may validly be revoked for plainly improper conduct which occurs before the term actually begins. Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971), cert. denied, 247 So.2d 63 (Fla.1971), considered this very issue. At 243 So.2d 190-91, the court held in language we consider controlling here:

The question here is whether a defendant probationer can, with impunity, engage in a criminal course of conduct (or for that matter any course of conduct which is essentially contrary to good behavior) during the interval between the date of an order of probation and some subsequent date when the probationary term is to commence. We think not. To hold otherwise would make a mockery of the very philosophy underlying the concept of probation, namely, that given a second chance to live within the rules of society and the law of the land, one will prove that he will thereafter do so and become a useful member of society. Cf. McNeely v. State, Fla.App. 1966, 186 So.2d 520. Although the statute empowers the court to revoke probation when a probationer has violated a condition of his probation in a material respect, the power to revoke probation is an inherent power of the trial court, Bronson v. State, 1941, 148 Fla. 188, 3 So.2d 873, which may be exercised at anytime upon the court determining that the probationer has violated the law. State ex rel. Roberts v. Cochran, supra. Under the exercise of such inherent power, the court can revoke an order of probation, the term of which has not yet commenced, should the court determine that the defendant probationer has been guilty of misconduct occurring subsequent to the entry of the order of probation, [e. s.]

While Martin’s pre-probation actions, unlike Williamson’s, involved the commission of specific crimes, this does not change the result. It is obvious that Williamson’s failure to adhere to an undertaking which was granted, like the probation itself, only as a matter of grace of the court, was a reprehensible “course of conduct which is essentially contrary to good behavior,” 243 So.2d at 190, and “misconduct,” 243 So.2d at 191, which well-supports an exercise of the trial court’s inherent power to revoke the order of probation. Again to draw upon the language of the Martin opinion, it would be a mockery to permit Williamson to claim his continued entitlement to future probation after he deliberately and knowingly violated the trust reposed in him upon the granting of his own request for a reciprocal benefit. See also, Loeb v. State, 387 So.2d 433 (Fla. 3d DCA 1980); cf., State v. Belien, 379 So.2d 446 (Fla. 3d DCA 1980). We will not approve such a result.

The trial court’s application of Section 947.16(3) was, however, erroneous. At the time of the commission of the crime, the statute provided:

Persons who have become eligible for parole and who may, according to the objective parole guidelines of the commission, be granted parole shall be placed on parole in accordance with the provisions of this law; except that, in any case of a person convicted of murder, robbery, aggravated assault, aggravated battery, kidnapping, sexual battery, arson, or any felony involving the use of a firearm or other deadly weapon or the use of intentional violence, at the time of sentencing the judge may enter an order retaining jurisdiction over the offender for review of a commission release order. This jurisdiction of the trial court judge is limited to the first third of the maximum sentence imposed.

It is apparent that, since burglary is not one of the specified crimes, the section could not properly be invoked in this case. Robinson v. State, 368 So.2d 638 (Fla. 2d DCA 1979); Williams v. State, 374 So.2d 1086 (Fla. 2d DCA 1979).

The reservation of jurisdiction under Section 947.16(3), Florida Statutes (Supp.1978), is stricken from the judgment under review, which is otherwise affirmed.

Affirmed in part, reversed in part.

      . The leniency of the plea arrangement was largely the result of the fact that the defendant represented himself to be a person named Williamson who had no prior record. In fact, it was discovered-after the plea and sentence, but before the probation revocation-that he was really McArthur Griffin who had six felony convictions.

      . Condition (4), “[y]ou will live and remain at liberty without violating any law,” does not apply because the defendant’s failure to appear was simply not in violation of any particular statutory provision-certainly not, as the state suggests, the escape statute, Section 944.40, Florida Statutes (1977), which requires the pri- or confinement of a prisoner.
      Condition (7), to which the appellee also calls our attention, states:
      (7) You will promptly and truthfully answer all inquiries directed to you by the Court or the Probation Supervisor, and allow the Supervisor to visit in your home, at your employment site or elsewhere, and you will comply with all instructions he may give you.
      It is apparent, however, that the “instructions” referred to are not of the Court but of the probation supervisor, who gave none to the appellant.

      . E. g., State ex rel. Roberts v. Cochran, 140 So.2d 597 (Fla.1962).

      . On appeal, the defendant suggests that the proper remedy for his malefactions is to vitiate the plea bargain and proceed to trial on the original charge. Since, however, he has already been sentenced, any resulting enhancement of the punishment would not be constitutionally permissible. Hardwick v. State, 357 So.2d 265 (Fla. 3d DCA 1978); Katz v. State, 335 So.2d 608 (Fla. 2d DCA 1976).

      . Morgan v. State, supra, in which the probationer failed to comply with an agreement to testify which was a part of the plea arrangement, but not the probation order, is distinguishable on the ground that the defendant in that case had already begun to serve the term of probation when he violated the undertaking. In all candor, however, it must be said that we disagree with the thrust of that opinion.

      . The statute has since been amended in several respects, none of which are material to the present issue. Ch. 79-341, § 8, Laws of Fla.

      . We relegate to a footnote and need not respond to the state’s perhaps tongue-in-cheek contention that the crime involved the “use of intentional violence” under the statute, and that it makes no difference that Williamson was the object and not the perpetrator of the only violence involved in the case.


text:
    James A. ARRENDALE, Appellant, v. Cathleen ARRENDALE, Appellee.
    No. 80-371.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.
    William M. Grodnick, Betty Kessler, Miami, for appellant.

      Franklin, Entin, Kimler & Marks and Sue Rose Samuels and Mark Angert, North Miami Beach, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

This is an appeal from a post-judgment order which required the appellant (husband) to pay his former wife the wholesale value of an automobile. The original property settlement agreement, which was incorporated into the final judgment of dissolution, required the husband to transfer title of the automobile to his wife. The trial court therefore had no jurisdiction to modify the original agreement which constituted a settlement of property rights between the parties. Rubio v. Rubio, 347 So.2d 1093 (Fla.2d DCA 1977); Horton v. Horton, 330 So.2d 69 (Fla.1st DCA 1976).

The post-judgment order is therefore reversed.


author: ANSTEAD, Judge.

text:
    Sylvia Jane Stafford LoBUE, Appellant, v. TRAVELERS INSURANCE COMPANY, etc., Betty Jean Schimming and Glen Burnes, Appellees.
    No. 78-2650.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1980.
    Malcolm H. Kahl of Meyer, Leben, Fixel & Cantor, P. A., Hollywood, for appellant.
    Joseph S. Kashi of Grimmett, Scherer & James, P. A., Fort Lauderdale, for appel-lees.
   ANSTEAD, Judge.

This is an appeal from a judgment entered on a jury verdict against the appellant on her personal injury claim against appellees. At issue is the correctness of the court’s ruling prohibiting the appellant from calling her physician as a witness after the physician failed to appear at the time appellant’s counsel represented. We reverse.

On the first day of trial counsel for the appellant represented to the court that the only medical expert he would call would not be available to testify until 10:00 a. m. the following morning. Based on that representation the court adjourned early on the first day and agreed to start the second day at 10:00 a. m. to accommodate the appearance of the medical witness who was also the only live witness left to be called by the appellant. The physician had been served with a subpoena prior to trial. However, at 10:00 a. m. the next morning the physician failed to appear. Appellant’s counsel informed the court that the physician’s office reported that the physician was in surgery and would be delayed. Counsel requested that the court permit him to call the physician at 2:00 p. m. and that the appellees be instructed to proceed with their testimony in the interim. The trial court denied this request and ordered counsel to proceed with the presentation of evidence. Thereafter, counsel proceeded to offer various items in evidence and read portions of the absent physician’s deposition and of another physician’s deposition. Counsel also made several more requests for delay, all of which were refused by the trial court.

At 11:50 a. m., before appellant had rested her case, the physician witness appeared in court and the appellant called him as a witness. Appellees objected, their contention being that the physician’s testimony would be cumulative of the deposition testimony already presented and that allowing the physician to testify would reward the dilatory tactics of appellant’s counsel. The court sustained the objection and refused to allow the physician to be called as a witness. Thereafter, the appellant made a lengthy proffer as to what the testimony of the physician would have been and then rested her case. After appellees presented their evidence, which included the live and deposition testimony of medical experts, the case went to the jury and a defense verdict resulted.

We have examined the brief deposition of the physician taken by the appellees during which virtually no questions were asked by appellant’s counsel and compared it with the proffer made by appellant. Based upon that examination we believe that the live testimony of the physician would not have been cumulative of the testimony already presented by deposition. Hence we do not believe appellees’ objection on that ground was a sufficient reason to exclude the witness. Having made that determination we must decide whether it was proper to exclude the witness because of the alleged dilatory tactics of counsel.

Faced with a similar, although not identical situation, the Florida Supreme Court has ruled that a trial court’s refusal to grant a delay in order to permit a witness to testify constituted an abuse of discretion. In Herbert v. Garner, 78 So.2d 727 (Fla.1955), Justice Terrell stated for the court:

The sixth question has to do with the refusal of the trial court on the last day of the trial to take a recess from 3:30 P.M. to 9:30 A.M. the following morning in order that defendant could have the advantage of the testimony of one of the doctors who treated appellee when she was injured.
The case was tried at LaBelle, the doctor lived at Fort Myers, thirty miles away. He had been regularly summoned as a witness and would have been present but for the fact that he was engaged in a labor case and could not in justice to his patient leave her bedside. There may be factual instances in which this would not have been abuse of discretion but this was not such a case. Counsel for defendant did everything that the law requires to have the witness present and was entitled under the circumstances to have the adjournment. In our view the prejudicial evidence permitted to go to the jury and the court’s refusal to let the doctor testify entitled defendant to a new trial. Id. at 729.

We believe a similar result is mandated here.

The right to present evidence and call witnesses is perhaps the most important due process right of a party litigant. Herbert v. Garner, supra. Indeed, without such a right a trial would be nothing more than a sham. Excluding the testimony of a witness is a drastic remedy which should be invoked only under the most compelling circumstances. Bradford v. State, 278 So.2d 624 (Fla.1973); Clarke v. Sanders, 363 So.2d 843 (Fla.4th DCA 1978).

We recognize that the trial court has broad discretion to control the trial of cases before him. In Duran v. Neff, 366 So.2d 169 (Fla.3d DCA 1979), a trial court’s ruling denying a request to continue trial proceedings into the evening hours in order to accommodate the appearance of a witness was upheld. In that case, for undisclosed reasons, the witness could not be produced the next day. Unlike the case at hand it was not demonstrated there that the witness was under subpoena and the party was apparently not prepared to compel the witness’ appearance. Rather, it appeared that the extension of the court session was requested purely for the convenience of the witness. We agree with the decision in Duran but do not believe it controls the case at hand.

In this case the physician excluded was the only medical witness who connected the appellant’s injury to the automobile accident involving the appellees and attributed permanent effects to the injury. His testimony-was essential to appellant’s case. The bare-boned discovery deposition of the physician taken by the appellees and presented in part to the jury did not include all of the essential testimony sought to be presented by the live testimony of the witness. Nor did it serve as an adequate substitute for the live appearance of the physician upon which the jury could make a valid determination of credibility in a trial which was largely a contest of experts.

Although there may be instances in which the conduct engaged in by counsel is such as to justify the exclusion of a witness, we do not believe this to be such a case. First, it appears that counsel had done everything within his legal power to secure the appearance of the witness. Prior to the arrival of the witness, the court had not found that the conduct of counsel called for the imposition of sanctions. Further, it was neither alleged nor demonstrated that the appellees would be prejudiced by allowing the physician to testify. And, as is usually the case, it is appellant rather than counsel who would suffer the consequences of the exclusion of the witness.

On the other hand the trial court was properly concerned about counsel’s representations as to the time of the physician’s appearance, the physician’s late appearance, and counsel’s conduct in between. However, when the witness actually appeared prior to the time appellant closed her case, the court still had adequate authority to deal with any alleged misconduct of counsel and the witness, short of excluding the witness from testifying in appellant’s behalf. We believe that even if the circumstances may have justified the imposition of sanctions against the attorney or the witness, they did not justify the imposition of the extreme sanction of excluding the appellant’s most important witness.

We have considered the other contentions raised by the appellees and find them to be without merit.

Accordingly, this cause is hereby reversed and remanded for a new trial in accordance with the terms of this opinion.

HERSEY, J., and FAGAN, OSEE, Associate Judge, concur.

      . The court also noted that counsel for appellant had indicated in an off the record exchange that he would utilize a deposition of the physician, taken by the appellees’ counsel in discovery, if the physician did not appear.

      . The attorney did not file the original return showing prior service of a subpoena on the physician until after the physician appeared. However, the fact that process was served on the witness was not disputed in the trial court or on appeal.

      . For instance, the appellees assert that appellant has failed to demonstrate reversible error because the jury may have rejected her claim of negligence and never considered the issue of permanent injury or damages as required by the no fault statute. We do not believe this calls for the application of the two-issue rule enunciated in Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978). The appellant’s claim was not predicated on multiple theories of responsibility and we do not believe the rule should be extended to require a claimant to specifically demonstrate the precise element of the cause of action the jury found lacking. To do so would require the use of an interrogatory type verdict in all cases detailing the elements of the claim and the defenses thereto. We do not believe this was contemplated by the Supreme Court in Scarbrough, supra. Moreover, appellant’s proof of liability against appellees went unrebutted in the trial below and the trial court, after all the evidence had been presented, ruled that there was no evidence to support an affirmative defense of comparative negligence.


author: COWART, Judge.

text:
    Anthony Henry FICK, Appellant, v. STATE of Florida, Appellee.
    No. 78-2208/T4-245.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

Appellant complains that the trial court erred in accepting his guilty plea. After filing his notice of appeal, the appellant filed in the trial court a motion to withdraw his plea which was treated as a Fla.R.Crim.P. 3.850 motion for post-conviction relief and denied. The Public Defender has filed an Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) motion and brief representing to this court that no reversible error appears and requesting leave to withdraw as counsel for appellant. This court gave appellant thirty (30) days within which to file a brief in his own behalf. None was filed. We have reviewed counsel’s brief and examined the record and find the case is without merit. Issues concerning the voluntary nature or intelligent character of a plea must always be first presented to the trial court for relief on a motion to withdraw the plea and then an appeal taken to review an adverse ruling. Robinson v. State, 373 So.2d 898 (Fla.1979); Counts v. State, 376 So.2d 59 (Fla.2d DCA 1979). A trial court has no jurisdiction to consider such a motion after an appeal has been commenced. Brooks v. State, 209 So.2d 271 (Fla.1st DCA 1968); Barton v. State, 193 So.2d 627 (Fla.2d DCA 1966).

The Public Defender’s motion to withdraw is granted and the judgment and sentence is

AFFIRMED.

DAUKSCH, C. J., and SHARP, J., concur.


author: SHARP, Judge.

text:
    Billie Edward SNELL, Appellant, v. STATE of Florida, Appellee.
    No. 78-2356/T4-276.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

The information charged appellant with carrying a firearm while committing a robbery. Appellant pled nolo contendere to the lesser included offense of robbery with a weapon, and reserved his right to appeal the lower court’s denial of his motion to suppress a confession. He was adjudicated guilty and sentenced to four years of imprisonment.

Under State v. Ashby, 245 So.2d 225 (Fla.1971), a defendant may enter a plea of nolo contendere reserving the right to appeal a legal issue. An Ashby nolo plea is only permissible where the legal issue to be determined on appeal is dispositive of the case. Brown v. State, 376 So.2d 382 (Fla.1979). The Brown court held that as a matter of law a confession may not be considered dispositive of the case for purposes of an Ashby nolo plea. Because of the varying decisions in this area, the Brown court allowed the petitioner to withdraw his plea and plead anew.

In the instant case the appellant entered his Ashby nolo plea prior to the decision in Brown. Therefore this cause is remanded to allow appellant to withdraw his plea of nolo contendere and plead anew if he so desires. Heath v. State, 379 So.2d 194 (Fla.5th DCA 1980). If appellant withdraws his plea the state shall have the option of prosecuting appellant on the original charge. Bell v. State, 262 So.2d 244 (Fla.4th DCA 1972).

REMANDED for further proceedings.

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

      . § 812.13(2)(a), Fla.Stat. (1979); § 790.001(6), Fla.Stat. (1979).

      . Subsequent to Brown, confessions have been held dispositive for the purposes of an Ashby nolo plea if the state so stipulates. Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980); Oest-erle v. State, 382 So.2d 1293 (Fla.2d DCA 1980). In this case the state did not stipulate that appellant’s confession was dispositive.


text:
    Ricky Thomas HEATHERINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 79-811/T4-493.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

We have examined the record and find competent substantial evidence to support appellant’s conviction of delivery of phenobarbital and of conspiracy. State v. Dent, 322 So.2d 543 (Fla.1975); State v. Hubbard, 328 So.2d 465 (Fla. 2d DCA 1976).

The trial court placed the appellant on probation with a condition that he serve fifty-one weeks in jail without gain time or furlough. Appellant cites Depson v. State, 363 So.2d 43 (Fla. 1st DCA 1978), as holding that the exclusion of gain time was improper. Apparently Depson involved a straight time term of years, whereas the confinement here was as a condition of probation. Adams v. State, 387 So.2d 498 (Fla. 5th DCA 1980), holds that confinement as a condition of probation is not a sentence within the meaning of the statute, section 951.21(1), Florida Statutes (1979), providing statutory gain time for a county prisoner.

The judgments and orders placing appellant on probation are

AFFIRMED.

FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


text:
    Daryl L. WOOD, Appellant, v. Judith Wade FRIEDMAN, Appellee.
    No. 79-1266/T4-592.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.

      Ronald L. Sims, Winter Park, for appellant.
    Lawrence J. Phalin, Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant, Daryl L. Wood, appeals from a final judgment of partition entered by the Circuit Court for Orange County.

The parties were divorced by final judgment of dissolution in November, 1972. Appellee, Judith Friedman, by the terms of the judgment, was granted a child support allowance and exclusive possession of the marital home (owned by the parties after the dissolution as tenants in common) until the last remaining child became self-supporting, married or reached the age of twenty-one years. Appellee was directed to make all payments upon the home unless otherwise agreed.

In June of 1977, appellee ceased residing in the home and rented it to a third party until December 1978, receiving $3,310.08 in rent. In September of 1976, appellee had filed suit for partition. Appellee maintained exclusive control of the property and paid all expenses until the trial which was held on April 17, 1979.

The trial court entered its final judgment of partition, ordering a public sale of the property. Appellee was allowed a credit for all payments for taxes, mortgage, insurance and maintenance (except $266.00 for plants and landscaping). Appellant was granted a credit for one-half of the rent received by appellee, but was denied any right to an accounting for the reasonable rental value of the home during the period of appellee’s exclusive possession. The amount of $14,774.00 was claimed as the reasonable rental value.

The first point raised on appeal is:

Where a wife, as cotenant, is granted exclusive possession of the marital residence via a divorce decree and later seeks partition of it, can the husband, as an excluded cotenant, recover or setoff the reasonable rental value of the property during the period of his exclusion, where the wife, as tenant in possession, seeks to recover advances made for mortgage, insurance and tax payments and repairs.

Appellant, while conceding that he could find no case law in Florida directly on point, stated that Adkins v. Edwards, 317 So.2d 770 (Fla. 2d DCA 1975), should be followed. In that case, the court apparently made no specific provision for the ex-wife to have exclusive possession of the home but she continued to reside therein. The court (unlike in the case before us) directed husband to make the mortgage, tax and insurance payments. The ex-wife than vacated and husband moved in. Wife subsequently brought a partition action and husband counterclaimed for an allowance for the mortgage payments, taxes and insurance premiums advanced by him. Wife then sought an accounting for the reasonable rental value of the premises during the period of her ex-husband’s occupancy. The court held that the ex-wife was entitled to one — half of the rental value during her ex-husband’s occupancy, to be credited against his entitlement to one-half of the mortgage payments, etc. paid by him.

In Seesholts v. Beers, 270 So.2d 434 (Fla. 4th DCA 1972), the wife was given exclusive possession of the home but the court made no further provisions concerning the property. Wife then vacated and her ex-husband went into possession. The parties stipulated that he was not holding adversely to his ex-wife. She then sought partition and one-half of the reasonable value of the premises during her ex-husband’s occupancy. He in turn sought to charge her with one-half of the taxes, insurance, mortgage, and other miscellaneous expenses. The trial court found the claims to be offsetting and denied wife’s claim for rents and husband’s claim for expenses. The Fourth District Court of Appeal reversed, citing Coggan v. Coggan, 239 So.2d 17, 19 (Fla.1970), which had affirmed the common law rule:

[W]hen one cotenant has exclusive possession of lands owned as tenant in common with another and uses those lands for his own benefit and does not receive rents or profits therefrom, such cotenant is not liable or accountable to his cotenant out of possession unless such cotenant in exclusive possession holds adversely or as the result of ouster or the equivalent thereof.

270 So.2d at 435. It is to be noted that in Coggan, the property involved was an office building and there was no provision in the decree or any agreement as to its use or possession.

Each of the cases cited is distinguishable and while informative, does not control the factual situation with which we are concerned. Exclusive possession can be granted to the wife to provide for the support of the minor children of the parties or as a duty of support for the wife. Duncan v. Duncan, 379 So.2d 949 (Fla.1980). The award of the residence, hence, is a facet of child support. Power v. Power, 387 So.2d 546 No. 80-59 (Fla. 5th DCA 1980). Where the court has awarded exclusive possession to recognize a husband’s duty of support for his wife or children, there can be no “ouster” or “adverse” possession which would give rise to a claim for reasonable rental value.

However, once appellee vacated the house and it was no longer necessary for the children’s or her needs, both she and her ex-husband were equally entitled to possession or the rents therefrom.

The second point raised by appellant is: Whether expenditures for maintenance made by the tenant in possession [appel-lee] are the type of expenditures for which the law allows reimbursement from a cotenant out of possession.

Any expenditures made by appel-lee reasonably necessary to maintain the property for the tenant should be recoverable. It is the prevailing rule that a coten-ant who has expended more than his or her fair share in repairing the common property has a right of recovery against a fellow cotenant and the court has the power to enter an order so as to do substantial justice between the joint owners. 12 Fla.Jur.2d Cotenancy and Partition § 29 (1979). See Browne v. Park, 144 Fla. 696, 198 So. 462 (1940). Partition, being a subject of equitable jurisdiction, see 59 Am.Jur.2d Partition § 69 (1971), it was incumbent upon appellant to show that the trial court, in exercising its equity jurisdiction, abused its discretion in determining which expenses were reimbursable. See 12 Fla.Jur.2d Cotenancy and Partition § 29 (1979). This appellant has failed to do.

We affirm the trial court’s holding that during the period prior to the termination of the wife’s right to exclusive possession appellant was not entitled to receive a set-off or credit for rental value. We also affirm the trial court’s allowance to husband of a credit of one-half of the rent received by appellee after her right to exclusive possession terminated and appellee’s right to reimbursement for one-half of her contributions made for mortgage, taxes, insurance and maintenance.

AFFIRMED.

ORFINGER and COBB, JJ., concur.

      . The trial court correctly followed the rule enunciated in Rubino v. Rubino, 372 So.2d 539 (Fla. 1st DCA 1979), that a wife who pays all of the mortgage, taxes, insurance, and expenses on jointly-owned property is entitled to credit against the husband’s one-half of the proceeds upon the sale of the property.