author: PER CURIAM. ADKINS, Justice, ENGLAND, Justice, ALDERMAN, Justice,

text:
    STATE of Florida, Petitioner, v. Louis J. TSAVARIS, Respondent.
    No. 59098.
    Supreme Court of Florida.
    Feb. 12, 1981.
    Rehearing Denied March 18, 1981.

      Jim Smith, Atty. Gen., and Peggy A. Quince, Asst. Atty. Gen., Tampa, for petitioner.
    Gerald C. Surfus of Lee & Surfus, Sarasota, for respondent.
   PER CURIAM.

The District Court of Appeal, Second District, has certified the following question for our resolution:

Does the recording of a conversation by one of the participants constitute the interception of a wire or oral communication within the meaning of Chapter 934, Florida Statutes (1979)?

State v. Tsavaris, 382 So.2d 56, 65 (Fla. 2d DCA 1980). An additional issue is raised by Tsavaris on cross-notice for review regarding the validity of subpoenas directed to Tsavaris’s secretary and the reversal of the trial court’s suppression of the office records produced pursuant to these subpoenas.

We answer the certified question in the affirmative. As to Tsavaris’s point on cross-notice, we hold that the district court correctly determined that only Tsavaris’s secretary to whom the subpoenas were directed had standing to object to the form or service of process of the subpoenas and that, by failing to object, she waived any such defects. We also agree with the district court that suppression of the office records produced pursuant to the subpoenas was not required by the fourth amendment to the United States Constitution.

Part I — Wire Interception

Louis Tsavaris, who had been indicted for the first-degree murder of Cassandra Ann Burton, one of his patients, moved to suppress certain evidence against him. One of the items he sought to suppress was a tape recording of a telephone call he made to the medical examiner, Dr. Feegel, inquiring as to Miss Burton’s autopsy results. Dr. Fee-gel answered this call on his speaker phone in the presence of a sheriff’s detective who had just informed Dr. Feegel that Tsavaris was involved in the circumstances surrounding Miss Burton’s death. The detective overheard the entire conversation over the speaker phone. Although not instructed by the detective to do so, when Tsavaris identified himself as the caller, Dr. Feegel turned on a recording device and asked Tsavaris to identify himself again. Tsavaris’s response and the remainder of the conversation were recorded by Dr. Feegel. It is the admissibility of this recording which is now in issue. There is no dispute that the testimony regarding this conversation either by Dr. Feegel or by the detective who overheard the conversation is admissible. The district court so held, and Tsavaris does not contest this holding in his cross-review request.

The trial court granted Tsavaris’s motion to suppress the recording of this telephone conversation on the basis that it was an unlawful interception of a wire communication in violation of chapter 934. The district court affirmed this ruling only because it felt compelled to do so in light of this Court’s decision in State v. Walls, 356 So.2d 294 (Fla.1978).

Section 934.06, Florida Statutes (1979), provides:

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter.

(Emphasis supplied.) But for exceptions specifically spelled out in chapter 934, anyone who willfully intercepts a wire or oral communication or who discloses the contents of an unlawfully intercepted wire or oral communication is guilty of a felony in the third degree. § 934.03(l)(a) and (c). None of the exceptions listed in section 934.03(2) applies in the present factual situation. Therefore, if the recording of Tsa-varis’s conversation by Dr. Feegel constitutes an “interception,” no part of the contents of such communication may be received into evidence.

Intercept is defined by section 934.02(3) to mean the “aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.” “Aural acquisition” means to gain control or possession of a thing through the sense of hearing. Thus pursuant to section 934.02(3), “to intercept” means to gain control or possession of a communication through the sense of hearing and through the use of an electronic or mechanical device. We think it is clear that Dr. Feegel’s recording of his telephone conversation with Dr. Tsavaris fits the explicit terms of the statutory definition.

As noted by the district court, this Court need look no further than our recent opinion in State v. Walls to determine that Dr. Feegel’s recording is an unlawful interception. In Walls a victim of extortion threats recorded a conversation he had with the extortionists in his home. At trial the alleged extortionists successfully sought to have the recordings suppressed because they were in violation of chapter 934. This Court affirmed the trial court suppression order and expressly held that the recordings were unlawful interceptions.

The Court reached a similar conclusion in Shevin v. Sunbeam Television Corp., 351 So.2d 723 (Fla.1977), appeal dismissed, 435 U.S. 920, 98 S.Ct. 1480, 55 L.Ed.2d 513 (1978). In that case various newspapers mounted a wholesale attack upon the constitutionality of section 934.03(2)(d), Florida Statutes (1979), which requires that all parties to a conversation give consent before that conversation may be lawfully intercepted. The newspapers complained that to prohibit a reporter from secretly recording conversations (such as telephone conversations) would unreasonably inhibit news-gathering activities protected by the first amendment. We rejected the newspapers’ constitutional claim and upheld the state’s right to require consent of all parties. While petitioner points out that the term “intercept” was not squarely in issue in Shevin, the entire controversy in that case was premised on the fact that the recording of telephone conversations and the like would constitute illegal interceptions. Moreover, had this Court believed that the recording of a conversation without the participants’ consent did not fit within the term “interception,” we most certainly would have decided the case on those grounds, for the Court will not pass upon a constitutional issue if the case can be decided on other grounds. Wooten v. State, 332 So.2d 15 (Fla.1976); Singletary v. State, 322 So.2d 551 (Fla.1975); Jones v. City of Sarasota, 89 So.2d 346 (Fla.1956).

The history and recent amendments to chapter 934 demonstrate that the act was intended to afford broad protection to private communications. Chapter 934, the Florida Security of Communications Act, was patterned after Title III of the Omnibus Crime Control Act of 1968, 18 U.S.C. § 2510, et seq. Prior to 1974 the Florida act, like its federal counterpart, permitted the interception of defined wire or oral communications when one party to the communication gave consent:

It is not unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication when such person is a party to the communication or when one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal act.

§ 934.03(2)(d), Fla.Stat. (1973). Effective October 1, 1974, however, chapter 74-249, Laws of Florida, amended the act to require ail parties to a defined wire or oral communication to give prior consent:

It is lawful under this chapter for a person to intercept a wire or oral communication when all of the parties to the communication have given prior consent to such interception.

§ 934.03(d)(2), Fla.Stat. (1979). This amendment “was a policy decision by the Florida legislature to allow each party to a conversation to have an expectation of privacy from interception by another party to the conversation.” Shevin v. Sunbeam Television Corp., 351 So.2d at 726-27. Accord, State v. News-Press Publishing Co., 338 So.2d 1313,1316 (Fla. 2d DCA 1976). While the federal wiretapping legislation envisions that one’s right to privacy must be subordinate to law enforcement interests when one party consents to the interception of a conversation, “[t]he [Florida] Legislature has determined as a matter of state public policy that the right of any caller to the privacy of his conversation is of greater societal value than the interest served by permitting eavesdropping or wiretapping.” State v. Walls, 356 So.2d at 296 (quoting from Markham v. Markham, 265 So.2d 59 (Fla. 1st DCA 1972), affirmed, 272 So.2d 813 (1973)). Hence, the Florida act evinces a greater concern for the protection of one’s privacy interests in a conversation than does the federal act.

Equally certain is the fact that the 1974 amendment to chapter 934 was designed to proscribe the method of interception used in this case. On the floor of the Florida House of Representatives, the only recorded debate on the two-party consent requirement of section 934.03(2)(d) was this comment by Representative Shreve:

[What this bill does] is to prevent, make it illegal, for a person to record a conversation, even though he’s a party to it, without the other person’s consent.

With no further debate, the bill passed the House 109-1. We regard this lone and uncontested comment as telling evidence of the unlawful nature of Dr. Feegel’s recording.

The district court decision in Tsavaris goes to great lengths to convince this Court that State v. Walls was incorrectly decided and should be overruled. We remain wholly unpersuaded. The district court rationale proceeds on two faulty premises. The first is that the term “interception” means only an interception of a communication in the course of transmission and before arrival of the communication at the receiving end. In other words, a classic “wiretap.” But the federal cases cited by the district court simply do not support this proposition. The primary case relied upon for this first premise is Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957). In Rathbun the Supreme Court considered whether a former provision of the Federal Communications Act, 47 U.S.C. § 605, was violated when one of two parties to a telephone conversation permitted a police officer to listen in on an extension phone. The Court found no interception under the facts presented, but expressly grounded its decision upon the fact that section 605 permits an interception with one party’s consent, and that one party had in fact consented to the interception:

The telephone extension is a widely used instrument of home and office, yet with nothing to evidence congressional intent, petitioner argues that Congress meant to place a severe restriction on its ordinary use by subscribers, ... The clear inference [of the statute] is that one entitled to receive the communication may use it for his own benefit or have another use it for him. The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone.

355 U.S. at 109-110, 78 S.Ct. at 162-63 (footnote omitted). As Mr. Justice Frankfurter points out in his dissent in Rathbun:

The fact that the Court relies on “the consent of one party” evidently implies that it would not be without the purview of § 605 for a police officer to conceal himself in a room of a house or a suite of offices having several “regularly used telephone extensions” and surreptitiously to utilize such an extension to overhear telephone conversations.

355 U.S. at 113, 78 S.Ct. at 164. Based as it is on a statute requiring the consent of only one party to an interception, Rathbun is of no value in properly analyzing the Florida act, which requires the consent of all parties. Accord, United States v. Harpel, 493 F.2d 346, 349 (10th Cir. 1974). Moreover, Rathbun says nothing in support of the proposition that an interception must be an acquisition between the speaker and the receiver.

The other case cited by the district court in support of its interception theory is Carnes v. United States, 295 F.2d 598 (5th Cir. 1961), cert. denied, 369 U.S. 861, 82 S.Ct. 949, 8 L.Ed.2d 19 (1962). Carnes involved the recording of telephone conversations by means of an attachment on a phone receiver. In finding no interception under these facts, the Fifth Circuit made bare reference to the view that an intercept required the listening to occur between the parties. But as in Rathbun, the decision in Carnes expressly relied upon the fact that one party to the conversation had consented to the recording:

The significant fact in the cases where eavesdropping has been approved is that a third person is listening to a conversation directly, or indirectly through an electrical device, with the consent, and often assistance, of one of the parties, and that the other party does not know that his words are overheard.

295 F.2d at 602. In any event, Carnes has been substantially undercut if not overruled by the recent decision in United States v. Turk, 526 F.2d 654 (5th Cir.), cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976), where the Fifth Circuit held that the recording of a telephone conversation, such as that involved in the present case, was clearly an interception.

The second premise underlying the district court decision in Tsavaris is that tape recordings do not differ in principle from testimony as to the contents of conversations, and recordings have the advantage of furnishing trustworthy evidence. The response to this contention is twofold. First, the cases cited all construe statutes which permit an interception with one party’s consent. In upholding the use of recordings where one party has consented, these cases are merely saying that where the initial interception is legal, so too is the recording of that interception. State v. McDermott, 167 N.J.Super. 271, 400 A.2d 830 (1979), a ease relied upon by the district court, makes this explicit statement. 400 A.2d at 834. Accord, Amsler v. United States, 381 F.2d 37, 50 (9th Cir. 1967). Conversely, where under the Florida act an initial interception is illegal, the recording of that interception must likewise be illegal. Second, it is absolutely immaterial to a proper analysis of chapter 934 that a recording may provide more trustworthy evidence of the contents of a conversation than mere oral testimony. This would be just as true of a conversation recorded under patently illegal circumstances. Florida law mandates that while a person who engages in a telephone conversation runs the risk that another may later testify as to the contents of that communication, he can at least be assured that the conversation will not be recorded without his consent. It is not for us to question this policy judgment, but simply to apply it.

Part II — Subpoenaed Records

Proceeding next to the issue of the subpoenaed records, the pertinent facts follow:

On Monday morning following Sally Burton’s death on Saturday night, detectives from the Hillsborough County Sheriff’s Department interviewed Chris Carlton, Dr. Tsavaris’ part-time secretary. Apparently Dr. Tsavaris’ office records were described and discussed in that interview. Miss Carlton declined to give the detectives any of the records or information from the records, stating that this information was confidential and disclosure would be unethical.
Later that same morning four detectives from the Sheriff’s Department and an assistant state attorney went to Dr. Tsavaris’ office. One member of the party served two subpoenas duces tecum on Jean Jones, Dr. Tsavaris’ full-time secretary. Each subpoena was addressed to “custodian of records, 4600 Habana Suite 28, Tampa, Fla. (Office of Dr. Louis Tsa-varis).” Each commanded the “custodian of records” to appear before the state attorney instanter. One subpoena directed that she bring with her all medical records relating to Cassandra Burton a/k/a Sally Burton, a/k/a Sandra Burton. The other subpoena directed the custodian to bring with her the personal appointment book of Dr. Tsavaris for the month of April, 1975.
Jean Jones thereupon went with two detectives to the office of the state attorney and there turned over to the state attorney four sets of records from Dr. Tsavaris’ office. Personnel at the state attorney’s office made copies of those records and returned the originals to Jean Jones.
The office records thus obtained by the state attorney were (1) sign-in sheets used for group therapy sessions, on which the patients signed their names and their comments about their feelings; (2) Dr. Tsavaris’ appointment book, showing his daily appointments with patients, both groups and individuals; (3) a telephone ledger used to log incoming calls to Dr. Tsavaris’ office and to note calls which he requested his secretary to make; and (4) Sally Burton’s medical records.
With the exception of Sally Burton’s medical records, Jean Jones maintained all of these records for Dr. Tsavaris in her capacity as his secretary. Both the appointment book and the telephone ledger were kept on her desk. After a group session, either Jean Jones or Chris Carlton made a record of attendance and put the sign-in sheet in a file for that particular group.

State v. Tsavaris, 382 So.2d at 66-67.

Tsavaris argued to the district court that the state attorney had obtained the subpoenaed office records in violation of his right to be free from unreasonable searches and seizures. He further contended that the records should be suppressed because the subpoenas were defective and improperly served. Tsavaris also argued in the district court that his fifth amendment rights were violated by the production of these records, but he does not make this argument before us. His brief on the merits is limited to his challenge to the district court’s holding on standing and to his claim of fourth amendment violation.

The district court correctly determined that the duty rested on Tsavaris’s secretary to object to the form of process served upon her. As stated by the district court:

[I]f a witness appears in response to defective process and fails to interpose any objections to the form or service of the process, the witness waives any right to be heard at a later date on those matters. Coleman v. State, 134 Fla. 802, 184 So. 334 (1938). The illegal issuance of a subpoena to a witness is not grounds for suppression of the witness’ evidence on motion of the defendant in a criminal case. Objections to the legality of a subpoena are personal to and may be asserted or waived only by the person searched or examined. “It was never heard that the defendant could object to the violation of the privileges of others not claimed by them because that violation discovers evidence by which he is convicted.” Sachs v. Government of the Canal Zone, 176 F.2d 292 (5th Cir. 1949), cert. denied, 338 U.S. 858, 70 S.Ct. 200, 94 L.Ed. 525 (1949)....

382 So.2d at 67.

Although Tsavaris did not have standing to challenge the form or service of process of the subpoenas, he did have standing to object to the subpoenas on the basis that they violated his fourth amendment rights. Considering Tsavaris’s claim that his rights were violated because the subpoenaed records were the product of a war-rantless search and seizure, the district court found no violation of the fourth amendment. Relying upon In re Horowitz, 482 F.2d 72 (2d Cir. 1973), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973), which traced the development of the United States Supreme Court’s position on the application of the fourth amendment to a subpoena duces tecum and which was cited with approval by the United States Supreme Court in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), the district court accurately determined that as far as the fourth amendment is concerned, the only requirements are that the subpoena must not be unduly burdensome and the subpoenaed documents must be relevant in purpose. In the present case, as the district court points out, no claim was made that the subpoenas were overbroad or that the evidence sought is not relevant.

Relying solely on Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), for his fourth amendment challenge to the subpoenas, Tsavaris argues that the production of his papers could not be required without the intervention of a detached magistrate. Coolidge involved a search and seizure pursuant to a search warrant which had not been issued by a neutral and detached magistrate. The Supreme Court held:

We find no escape from the conclusion that the seizure and search of the Pontiac automobile cannot constitutionally rest upon the warrant issued by the state official who was the chief investigator and prosecutor in this case. Since he was not the neutral and detached magistrate required by the Constitution, the search stands in no firmer ground than if there had been no warrant at all. If the seizure and search are to be justified, they must, therefore, be justified on some other theory.

403 U.S. at 453, 91 S.Ct. at 2031.

The State responds that the present case involved issuance of a subpoena, not a search warrant, and there is no requirement that a subpoena be issued by a detached magistrate. It argues that the district court correctly reversed the trial court’s order suppressing the office records.

We are not persuaded by Tsavaris’s argument which is contrary to precedent established by the Supreme Court of the United States. The fourth amendment does not require that a subpoena duces te-cum be issued by a detached magistrate as Tsavaris now suggests. Although in the early decision of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), the Supreme Court declared that the fourth amendment applied to subpoenas duces te-cum in the same manner in which it applied to search warrants, the Supreme Court retreated from this broad view in subsequent decisions.

In Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906), the Supreme Court announced that the search and seizure clause of the fourth amendment was not intended to interfere with the power of courts to compel the production of evidence through a subpoena duces tecum but further explained that a test of reasonableness should be applied in considering whether a subpoena duces tecum amounted to an unreasonable search and seizure. Applying the test of reasonableness, it held that the particular subpoena under review was too sweeping in its terms to be regarded as reasonable. Cf. Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 28 S.Ct. 178, 52 L.Ed. 327 (1908), wherein, employing this test of reasonableness, the Supreme Court enforced a subpoena because it described in reasonable detail what was to be produced.

Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946), involved the issuance of subpoenas duces tecum by the wage hour administrator in the course of an investigation pursuant to the Fair Labor Standards Act, which were challenged on the basis that they violated the fourth amendment proscription against unreasonable searches and seizures. The Supreme Court found that there was no fourth amendment violation and explained that there was a misconception of the fourth amendment’s function as it related to subpoenas and that this misconception lay with the identification of cases involving “figurative” or constructive search with cases of actual search and seizure. The Court held that, if the fourth amendment was applicable at all to the subpoenas in question, at the most, it only ensures relevancy and guards against abuse of too much indefiniteness or breadth in the things required to be particularly described. Oklahoma Press v. Walling, 327 U.S. at 208, 66 S.Ct. at 505. See also, See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). In United States v. Dionisio, 410 U.S. 1, 11-12, 93 S.Ct. 764, 770, 35 L.Ed.2d 67 (1973), the Court reiterated: “The Fourth Amendment provides protection against a grand jury subpoena duces tecum too sweeping in its terms ‘to be regarded as reasonable.’ Hale v. Henkel, 201 U.S. 43, 76 [26 S.Ct. 370, 379]; cf. Oklahoma Press Publishing Co. v. Wailing, 327 U.S. 186, 208, 217 [66 S.Ct. 494, 505, 509].” See also, United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973).

The distinction between searches and seizures and subpoenas insofar as the fourth amendment’s application is concerned was again made by the Supreme Court in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), wherein the Court stated that the fourth amendment protects against seizures without warrant or probable cause and “against subpoenas which suffer from ‘too much indefiniteness or breadth in the things required to be “particularly described,” ’ Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208, [66 S.Ct. 494, 505] (1946) .... ” 425 U.S. at 401, 96 S.Ct. at 1576.

The use of a properly limited subpoena does not constitute an unreasonable search and seizure under the fourth amendment. All that is required is that the subpoenaed materials be relevant to the investigation being conducted and that the subpoena not be overly broad or burdensome. A proper subpoena is one that is properly limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome. United States v. Palmer, 536 F.2d 1278 (9th Cir. 1976); In re Horowitz. See

In the present case, the district court correctly observed:

No claim has been made that the subpoenas duces tecum in this case were overbroad or that the evidence sought is not relevant. Neither claim would be successful. Accordingly, we hold that the requirements of the Fourth Amendment were met with regard to the subpoenas duces tecum in this case.

State v. Tsavaris, 382 So.2d at 71. The district court further appropriately remarked:

We pause to observe that, in our view, the procedure followed by the state in this case — that is, using subpoenas duces tecum to obtain the evidence it sought in connection with its investigation of Dr. Tsavaris — was much less intrusive than would have been a search pursuant to a search warrant. O’Connor v. Johnson, Minn., 287 N.W.2d 400 (1979). We see no basis for criticizing the state for choosing to use subpoenas duces tecum to obtain the records in question in lieu of seeking the issuance of a search warrant, assuming there was probable cause for such a warrant.

382 So.2d at 71 (footnote omitted).

Subpoenas duces tecum are different from search warrants and are indisputably less intrusive. While there is no opportunity to challenge a search warrant, a subpoena duces tecum is subject to a motion to quash prior to the production of the requested materials. While a search warrant may involve the police rummaging through one’s belongings and may involve the threat or actual use of force, a subpoena duces tecum requires the subpoenaed person to bring the materials sought at a time and place described in the subpoena. See Stanford Daily v. Zurcher, 353 F.Supp. 124 (N.D.Cal.1972); Hynes v. Moscowitz, 44 N.Y.2d 383, 406 N.Y.S.2d 1, 377 N.E.2d 446 (Ct.App.1978), appeal dismissed, 439 U.S. 921, 99 S.Ct. 302, 58 L.Ed.2d 315 (1978).

In summary, we hold that Dr. Feegel’s recording of Tsavaris’s conversation with him was an unlawful interception of a wire or oral communication within the meaning of chapter 934. Further, we hold that the subpoenaed records are admissible and the district court correctly reversed the trial court’s suppression of these records.

Accordingly, the result of the district court’s decision is approved.

It is so ordered.

SUNDBERG, C. J. and OVERTON, J., concur with Part I and II.

ADKINS, J., concurs with Part I and dissents with Part II with an opinion.

ENGLAND, J., concurs with Parts I and II, but dissents to the admissibility of documents with an opinion.

ALDERMAN, J., concurs with Part II and dissents with Part I with an opinion, with which BOYD and McDONALD, JJ., concur.

ADKINS, Justice,

concurring in part and dissenting in part.

I concur in Part I of the opinion holding that the recording of the Tsavaris-Dr. Fee-gel conversation was an unlawful interception.

I dissent from Part II of the opinion authorizing the seizure of private papers by use of a subpoena duces tecum.

In the first appearance of this case (Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977)), four members of the Court held that Tsa-varis was not entitled to immunity because of the seizure of his office records. Three judges refrained from expressing any view on the question of whether the materials from Tsavaris’ office should be suppressed. One justice stated that “the law enforcement authorities in the instant case may have unwittingly victimized Dr. Tsavaris for which he has recourse under an appropriate motion to suppress.” Id. at 754. Three justices opined that Tsavaris was granted immunity. As stated by Justice Sundberg, “It is often said that hard cases make bad law.” Id. at 753.

The trial judge in analyzing the opinions in Tsavaris v. Scruggs, supra, correctly received the implied message that the motion to suppress should be granted. In my opinion he followed our directions.

The majority says that Tsavaris’ secretary, to whom the subpoenas were directed, had standing to object to any defects in the subpoenas and that, by failing to object, she waived any defect.

As stated by Justice Alderman in Shapiro v. State, 390 So.2d 344 (Fla.1980):

First, we note that the trial court’s conclusions of fact come to us clothed with a presumption of correctness, and, in testing the accuracy of these conclusions we must interpret the evidence and all reasonable deductions and inferences which may be drawn therefrom in the light most favorable to the trial judge’s conclusions. State v. Nova, 361 So.2d 411 (Fla.1978).

The original record discloses the following findings and conclusions by the trial judge:

I feel that Dr. Tsavaris has a constitutional Fourth Amendment right to be secure in his office against unreasonable search and seizures of his papers and that he, in these circumstances, had a reasonable expectation of privacy to these documents. And that primarily I did read syllabuses at least of all the cases that I took out of here.
Primarily the cases Mr. Cannella cites deal, I believe, with third party cases and I don’t believe that the law would treat his personal secretary as a third party in these circumstances to come within the purview of those cases.
I recommend that the State Attorney has a duty and obligation to issue subpoenas and subpoenas duces tecum, but they cannot be used to abrogate a Fourth Amendment to the Constitution of the State of Florida and the United States Constitution. They are not based on probable cause and they don’t have the equally as important element of a neutral and detached judge passing on these sort of situations. And to authorize the State to just issue a subpoena duces tecum and go out and seize the matters that are particularly described therein and take the position, which may turn out to be the right position, that even assuming that the parties do not have to comply with the subpoena duces tecum, that all they have to do is say, “no, I am not complying with them,” then go in and be heard in a court of law, is somewhat analogous to me at least in a situation of stating that you can or cannot resist an unlawful arrest.
There is a valid distinction, obviously, when you are resisting arrest. There is violence involved, and we are not contemplating violence here. But, in Florida we decided that you must comply with an unlawful arrest and then you have your remedies later. And that you can’t in the streets say, “Well, this is an unlawful arrest, therefore, I am going to resist it,” and law and order breaks down.
And that is the situation we are confronted with here; that the secretary is supposed to, in effect, say, “Well, I am not complying with what appears to be a lawful court order. I am not going to comply with it.”
Number one, I don’t think it is good public policy, and, number two, I think it’s, for whatever it is worth and maybe it is worth nothing, unreasonable to expect that citizens faced with subpoena duces tecum or invalid search warrants are going to be knowledgeable enough to resist them on the spot.
Therefore, I think that these matters that have been seized here and the manner in which they have been seized, also — I don’t know that on the matter of Mr. Freeman issuing the or serving the duces tecum, I don’t believe I am going to pass on that or make any mention of that.
Mr. Cannella makes a good argument. Of course, Mr. Surfus does, too. I don’t know that it is necessary to decide whether or not a State Attorney can serve that which he’s authorized to issue.
However, I think that perhaps I should comment, in the event that I am wrong in my ruling, I further want to state that in the event that I am wrong in this ruling that in my judgment that portion of the items seized which were seized only after the Assistant State Attorney said, “Well, if you don’t give them to us, we will go get another warrant for them,” were not given up freely and voluntarily, were given up only under an implied coercion and were not, consent wasn't given and there was no waiver of any rights there. That, even in the event I am wrong, I think those portions that were secured that were not mentioned in the subpoena duces tecum, even though given up voluntarily, were given up under an unintentional compulsion of the State. (Emphasis added.)

The majority opinion completely ignores the testimony as well as the specific findings by the trial judge by holding that the evidence was admissible because Tsavaris’ secretary failed to object. Unbelievably, the majority opinion authorizes issuance of a subpoena duces tecum by a prosecuting attorney so long as it is “properly limited in scope, relevant in purpose, and specific in directive so that compliance would not be unreasonably burdensome.” The majority opinion does not require the existence of probable cause that the person to whom the subpoena is directed has committed any offense or violated any laws of the state or country. Nor does it require a finding of reasonableness. In other words, as long as the subpoena duces tecum is not overbroad, as long as the evidence might be relevant to an investigation, there is no need for the prosecuting attorney in the future to secure any type of search warrant.

This has been a bad case. I am well aware of the problems facing law enforcement officers in their zealous attempts to enforce the law and prosecute crime. They have an obligation to the people and to the state to see that all criminals are brought to the bar of justice. On the other hand, even in the face of public criticism, we have an obligation to each individual citizen of the state of Florida. If a mistake is made during an investigation of a crime, our duty is to apply the case law and statutory law, even if a suspect goes free. We should never recede from well-established precedent in order to correct an obvious error made by law enforcement or prosecuting officials. Stability and certainty in the law are more important than convicting any one suspect. I firmly believe that the law enforcement officers and the prosecuting officers are guided by good intentions, and I also believe that those same officers and same prosecutors are more interested in the preservation of established legal principles than in the prosecution of one suspect.

I would answer the certified question in the affirmative and hold that the recording of a conversation by one of the participants constitutes an interception of a wire or oral communication within the meaning of chapter 934, Florida Statutes (1979). Furthermore, I would quash the decision of the district court of appeal and affirm the trial court’s suppression of the office records produced pursuant to the subpoenas duces tecum.

ENGLAND, Justice,

concurring in part and dissenting in part.

I cannot fault the Court’s analysis of the wire intercept and Fourth Amendment issues, for which reason I concur in today’s decision on those issues. Nonetheless, I persist in my view, expressed when this case first came to us for review, that Florida’s constitutional protection against self-incrimination bars the use of Dr. Tsavaris’ seized personal documents. The trial court ruled these documents inadmissible, and I would reinstate his suppression order.

ALDERMAN, Justice,

concurring in part, dissenting in part.

I agree that the subpoenaed records are admissible into evidence and that the district court correctly reversed their suppression. I disagree, however, with the majority’s holding that the recording of the conversation which Dr. Feegel had with Tsa-varis constituted an unlawful interception of a wire or oral communication within the meaning of chapter 934. Florida Statutes (1979).

The district court affirmed the trial court’s ruling that this recording was an unlawful interception because it felt it had no alternative but to follow our recent pronouncement in State v. Walls, 356 So.2d 294 (Fla.1978). In a detailed and well-reasoned opinion, however, Judge Danahy explained why our decision in State v. Walls, as well as its own prior decision in State v. News Press Publishing Co., 338 So.2d 1313 (Fla. 2d DCA 1976), was incorrect.

In my view, the district court’s rationale for its view that Dr. Feegel’s recording did not amount to an interception within the contemplation of section 934.06 is convincing, and for the following reasons I would hold that the recording is admissible.

Section 934.06, Florida Statutes (1979), provides:

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter. [Emphasis supplied.]

Section 934.03(l)(a), Florida Statutes (1979), provides:

(1) Except as otherwise specifically provided in this chapter, any person who:
(a) Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication; ... shall be guilty of a felony of the third degree, punishable as provided in s. 775.-082, § 775.083, or § 775.084. [Emphasis supplied.]

Since none of the exceptions enumerated in section 934.03 apply to the present facts, if Dr. Feegel’s recording was an interception within the contemplation of chapter 934, then he is guilty of a third-degree felony, and none of the contents of the recorded conversation is admissible into evidence. Section 934.06.

This recording, however, was not an interception. Intercept is defined by section 934.02(3) to mean the “aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.” Intercept is defined in general to mean “to take, seize, or stop by the way or before arrival at the destined place.” Webster’s Third New International Dictionary (unabridged). I find highly persuasive the rationale of the United States Circuit Court of Appeals, Fifth Circuit, in Carnes v. United States, 295 F.2d 598 (5th Cir. 1961), cert. denied, 369 U.S. 961, 82 S.Ct. 949, 8 L.Ed.2d 19 (1962), for its finding that the recording of a conversation by a participant thereto does not amount to an interception. Relying on the United States Supreme Court’s decision in Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1959), the Fifth Circuit explained that interception does not mean the obtaining of what is to be sent before or at the moment it leaves the possession of the sender or after or at the moment it comes into the possession of the intended receiver. It held that the consenting participant to the conversation would be free to divulge its contents in the courtroom or elsewhere and that “the only function served by the recording is to preserve a permanent and accurate record of the conversation.” 295 F.2d at 602. The Court further stated:

In the case at bar this point is particularly clear since the recording was made by the very individual who was participating in the conversation. Taking a sensible view of it, the only difference between a person testifying to a conversation which he participated in or overheard and a recording of the conversation is that the recording has the advantage of furnishing trustworthy evidence (assuming a showing that the tape has not been tampered with).

295 F.2d at 602.

In the present case, there was no aural acquisition by means of any electronic or mechanical device. Dr. Feegel received the conversation over a telephone receiver and recorded it only after it had reached its destination. The telephone receiver was the means used to acquire the conversation. The recorder was not the acquiring device but was merely an accessory designed to preserve the contents of the communication and to thereby obtain the most reliable evidence. See United States v. Santillo, 507 F.2d 629 (Sd Cir. 1975), cert. denied, sub nom. Buchert v. United States, 421 U.S. 968, 95 S.Ct. 1960, 44 L.Ed.2d 457 (1975); United States v. Harpel, 493 F.2d 346, 350 (10th Cir.1974). One does not intercept a conversation made directly to himself. Tsa-varis’s communication was lawfully received over the telephone receiver; therefore, the recording of it by Dr. Feegel was not an interception, and the tape is admissible at Tsavaris’s trial.

State v. Walls and Shevin v. Sunbeam Television Corp., 351 So.2d 723 (Fla.1977), appeal dismissed, 435 U.S. 920, 98 S.Ct. 1480, 55 L.Ed.2d 513 (1978), are not controlling here. In neither case was this Court confronted with the question of whether a recording of a conversation by a party thereto is an “intercept.” In State v. Walls, the victim of extortionary threats recorded a conversation which occurred in his home between himself and the extortionist without the consent of the extortionist. Therein, this Court held that the recording should be suppressed based upon the premise that the extortionary threat was an oral communication within the definition of section 934.02(2), Florida Statutes (1975). The issue of whether the recording was an “interception” within the definition of section 934.02(3) was not presented to this Court. The thrust of the State’s argument was that the extortionary threats were not an oral communication. In Walls, the State expressly conceded in its brief that if the threats were oral communications, then the recording was an interception. Not being confronted with the issue of whether the recording was actually an interception, this Court, for the purpose of deciding that case, accepted this concession that there was an interception.

Likewise, in Shevin v. Sunbeam Television Corp., this Court was not confronted with the issue of whether the recording of a conversation by one of the participants without the consent of the other was an interception. Sunbeam Television Corporation had filed a complaint challenging the constitutionality of section 934.03(2)(d) insofar as it required all parties to consent before a legal interception of a conversation could be had. Sunbeam alleged that this statute was a prior restraint in violation of the first amendment. This Court held that section 934.03(2)(d) is not a restraint on the press and does not violate the first amendment. In order to hold that the present recording is not an interception, it is not necessary that we recede from our holding in Sunbeam that where, in fact, there has been an “interception” by a member of the press, the first amendment does not exempt that interception from the requirement of section 934.03(2)(d) that all the parties to the oral or wire communication consent before the interception is lawful.

In the present case, for the first time, this Court is confronted squarely with the issue of whether the recording of a conversation by one of the participants is an interception as that term is defined in chapter 934, and I would hold that it is not. Other courts which have considered this issue have consistently held that such a recording is not an interception.

I agree with the majority’s statement that “where under the Florida act an initial interception is illegal, the recording of the interception must likewise be illegal.” Slip op. at 8. But this principle of law does not apply to the present case because here there was no illegal interception, the recording of which would likewise have been illegal. There was no nonconsensual tapping of the telephone line to intercept the wire communication between Tsavaris and Dr. Feegel before it reached its intended destination. Such tapping clearly would have been an illegal interception even if the communication had not been recorded.

In the present case, no interception took place when Dr. Feegel heard Tsavaris’s voice over his telephone receiver. This clearly was a legal reception of a wire communication, and it therefore cannot be said that Dr. Feegel’s recording of this communication after it had arrived at its destined place was the recording of an initial illegal interception. Dr. Feegel can be guilty of misconduct only if the recording of a lawfully received communication is itself illegal. There is no provision in chapter 934 that makes the recording of a communication by itself illegal. Consequently, I conclude that Dr. Feegel is not guilty of an illegal interception and that the recording is admissible.

I cannot believe that the legislature intended to brand as a third-degree felon the victim of extortionary threats, who, while in his home, electronically records the threats made against him. E. g. State v. Walls. Likewise, I do not believe the legislature intended that a public-spirited citizen like Dr. Feegel, who, in the course of his employment as medical examiner, records a lawfully received telephone communication relevant to a pending murder investigation, should be subjected to the possibility of criminal prosecution. If the legislature had intended to make it unlawful for any person to record an oral or wire communication, it could easily have done so in plain and simple language. It did not. Instead, it criminalized only the willful interception of wire or oral communication. Section 934.03(l)(a). When section 934.02(2)(d) was amended to provide that it was lawful to intercept a wire or oral communication when all of the parties to the communication have given prior consent to such interception, the legislature still referred only to interceptions, not recordings. While it is true that it is illegal to record an illegal interception, the recording of an otherwise lawfully received oral or wire communication is not an unlawful interception.

All that Dr. Feegel did in the present case was preserve the wire communication lawfully received by him from Tsavaris, the same as if he had taken down in shorthand the communication and then made a verbatim transcript. The majority says that the legislature intended that for this public-spirited action Dr. Feegel is guilty of a third-degree felony. Surely, the legislature did not intend such an absurd result. I hope that the legislature will correct what I perceive to be the majority’s judicial distortion of chapter 934.

Accordingly, I would approve the district court’s decision insofar as it reverses the trial court’s suppression of the subpoenaed office records, but I would quash that portion of the district court’s decision holding the tape recording of Dr. Feegel’s conversation with Tsavaris inadmissible.

BOYD and McDONALD, JJ., concur.

      . We refer only to those items described in the subpoenas. The trial court found that some items not mentioned in the subpoenas were not given up freely and voluntarily. This portion of the trial judge’s order is not before us for review.

      . This case does not involve the issue of whether the interception was conducted by a law enforcement officer or a person acting under the direction of a law enforcement officer pursuant to section 934.03(2)(c), Florida Statutes (1979).

      . Webster’s Third New International Dictionary (1961 unabridged).

      . Notably, the statute does not speak in terms of “wiretapping” or “eavesdropping,” or any other specific means of acquiring the contents of a communication.

      . Taken from the tape of the afternoon session, Florida House of Representatives’ debate of SB 459, on May 30, 1974.

      . We are at a loss to understand why the district court went so far — in the absence of new or controlling wisdom — as to disavow its own recent decision, State v. News-Press Publishing Co., 338 So.2d 1313 (Fla. 2d DCA 1976), on the “interception” issue. Obviously, we think State v. News-Press is persuasive and was rightly decided on that issue.

      . Some of the cases cited as authority include United States v. Bastone, 526 F.2d 971 (7th Cir. 1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2172, 48 L.Ed.2d 797 (1976); Amsier v. United States, 381 F.2d 37 (9th.Cir. 1967); State v. McDer-mott, 167 N.J.Super. 271, 400 A.2d 830 (1979); State v. Birge, 240 Ga. 501, 241 S.E.2d 213, cert. denied, 436 U.S. 945, 98 S.Ct. 2847, 56 L.Ed.2d 786 (1978).

      . Indeed, it does not seem unreasonable to conclude that the nonconsensual recording of a telephone conversation, by itself, is a pernicious and intrusive act worthy of legislative proscription.

      . Consequently, we intimate no opinion with respect to an individual’s standing to assert nor upon the efficacy of any fifth amendment challenge to production of subpoenaed documents such as are here involved.

      . Tsavaris v. Scruggs, 360 So.2d 745, 754-55 (Fla.1977) (England, J., dissenting.)

      . Art. I, § 9, Fla.Const.

      . The district court has given a detailed list of cases of other jurisdictions, state and federal, holding that the recording of a conversation by a participant thereto is not an interception. State v. Tsavaris, 382 So.2d at 63-64.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Howard HERRING, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1903.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    Rehearing Denied July 31, 1980.
    Solomon & Mendelow and Harold Mende-low, Miami Springs, Snowden, Kornreich, Reichenthal & Migdall, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The judgment of conviction and sentence under review is affirmed upon a holding that the trial court properly denied the defendant’s pre-trial motion to suppress without conducting an evidentiary hearing thereon as the said motion was legally insufficient and subject to a summary denial thereof because: (a) the motion fails to clearly state the reasons for suppression or a general statement of facts in support thereof as required by Fla.R.Crim.P. 3.190(h)(2), State v. Butterfield, 285 So.2d 626 (Fla.4th DCA 1973), and (b) the motion fails to make the requisite showing under Delaware v. Franks, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to entitle the defendant to an evidentiary hearing on the veracity of the search warrant affidavits. Mason v. State, 375 So.2d 1125 (Fla.1st DCA 1979).


author: CARLTON, CHARLES T., Associate Judge.

text:
    STATE of Florida, Appellant, v. Edwin Ray MOYER, Appellee.
    No. 79-1956.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1980.
    Rehearing Denied Feb. 24, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, and G. P. Waldbart, Asst. Attys. Gen., Tampa, for appellant.
    Sondra Goldenfarb, Clearwater, and Joseph G. Donahey, Jr., of Tanney, Forde, Donahey, Eno & Mills, Clearwater, for ap-pellee.
   CARLTON, CHARLES T., Associate Judge.

The State of Florida brings this appeal from an order entered by the Circuit Court of Pinellas County, Florida, granting defendant’s motion to suppress the evidence in a prosecution for conspiracy to sell cocaine, conspiracy to possess cocaine, and possession of marijuana.

On May 8, 1979, a confidential informer with no previously known reliability attempted to arrange the purchase of one pound of cocaine from appellee Edwin Ray Moyer for the Clearwater Police Department. That same morning the police were informed by the confidential informant of the approximate time and location of the proposed cocaine sale. On the same date, at about 4:00 P.M., the confidential informant contacted the police about the tentative transaction. The Clearwater Police Department had intended to put up $26,000 to purchase the contraband; however, the police could not provide the money for the controlled purchase because other investigations had exhausted their funds.

At 5:30 P.M., the police set up their surveillance of appellee’s residence. Between the hours of 6:30 P.M. and 7:30 P.M. the confidential informer was “bugged” with an electronic communications device and entered appellee’s residence to make plans to finalize the transaction. The police listened to the conversation between the confidential informant and appellee. The gist of the conversation was that the confidential informer could either buy a small quantity of cocaine and take it to the “money man” for testing, or the “money man” could come to appellee’s house and test it. The confidential informant did not know what to do, so he left.

Within 45 minutes the police observed Murray C. Mallory arrive at appellee’s residence in a pickup truck and enter. Mallory carried with him a tool box and a brown paper bag. Approximately 10 minutes after Mallory’s arrival, the confidential informer received a telephone call from ap-pellee stating that the man with the cocaine had arrived at appellee’s residence.

Again, the confidential informer was equipped with a “body bug” and made his second visit to appellee’s residence. The police overheard a conversation wherein a voice, presumed to be Mallory’s told the confidential informer that there would be no samples and that he, Mallory, was only going to be there fifteen minutes and that the confidential informer should produce the man with the money. The confidential informer departed. The prearranged procedure had called for a plainclothes detective to pose as the “money man”. He would carry an empty briefcase to appellee’s residence with the confidential informant. After learning that the police did not have the money to pay for the cocaine, the confidential informer got “shaky” and refused to go along with the plan. At that time the police determined that they had enough evidence for a conspiracy charge against the appellee and Mallory. They decided to make an immediate arrest on the conspiracy charge at appellee’s residence.

Five police officers approached the residence. As they neared the house, appellee came out the front door. One the police officers placed appellee under arrest in the front yard. Between 30 seconds and 2 minutes after the arrest, the officers reached the front door. One of the detectives opened the door and yelled, “Police. Halt!” The detectives could smell the odor of marijuana and heard someone running through the house. The State conceded that they did not comply with the “knock and announce” statute, Section 901.19, Florida Statutes (1979). Mallory ran to the bathroom and locked the door. The detectives broke the door down and observed Mallory attempting to dispose of the cocaine by dumping the plastic bag of cocaine under hot water. Mallory was placed under arrest. Police officers also seized marijuana which they observed in the house. The entry into the house and the seizure occurred between 8:30 and 9:00 P.M.

The trial court granted appellee’s motion to suppress the evidence because of the police officers’ failure to secure a search warrant. The State's appeal followed.

The issue on this appeal is whether there were exigent circumstances sufficient to justify a warrantless entry into appellee’s house.

Exigent circumstances will justify a war-rantless entry into a home for the purpose of either an arrest or a search. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In Benefield v. State, 160 So.2d 706 (Fla.1964), the Florida Supreme Court held that exigent circumstances exist where those within a house are made aware of the presence of someone outside, and are engaged in activities which justify the officers in the belief that an escape or destruction of evidence is being attempted. Nevertheless, “[l]aw enforcement officers may not sit and wait ... (when they could be seeking a warrant), then utilize their self-imposed delay to create exigent circumstances.” Hornblower v. State, 351 So.2d 716, 717 (Fla.1977); Wilson v. State, 363 So.2d 1146 (Fla.2d DCA 1978). The critical issue in Hornblower and Wilson was the length of time which elapsed from the time probable cause vested until the warrantless search. The courts held that 45 minutes in Hornblower and six hours in Wilson were unreasonable lengths of time and thus the warrantless searches were unjustified.

We are of the opinion that probable cause vested only after the following facts and circumstances in their entirety were within the knowledge of the police: 1) a confidential informant with no previously known reliability set up a drug buy; 2) the informant, wearing a body bug, finalized drug negotiations on his first visit with appellee; 3) forty-five minutes after the informant’s first visit, he was called by appellee and told that the man had arrived with the cocaine; 4) surveillance confirmed that after the informant’s first visit a man in a pickup truck arrived and entered appellee’s residence carrying a tool box and a brown paper bag; 5) upon the informant’s second visit to appellee’s residence, and while still using a body bug, the informant was told: a) the cocaine is here, have your money man come inside, b) a sample will be shown, c) appellee will leave in 15 minutes; he is anxious to depart. The exigent circumstances arose when the police knew that Mallory was going to leave in fifteen minutes with the evidence. This unexpected development left no time for the police to secure a search warrant.

The officers were well justified in their belief that a destruction of the evidence was being attempted. As noted in State v. Clarke, 242 So.2d 791 (Fla.4th DCA 1970), Berryman v. State, 368 So.2d 893 (Fla.4th DCA 1979), and State v. Johnson, 372 So.2d 536 (Fla.4th DCA 1979), police may enter without a warrant where the facts show reasonable grounds to fear destruction of the evidence. The record clearly indicates that the officers involved in the investigation were experienced and were familiar with an easily destructible substance-cocaine. Further, the “knock and announce” law does not apply to the exigent circumstances. Benefield v. State, supra.

The short period of time between the vesting of probable cause and the development of exigent circumstances negates any and all assertions that the police were able to obtain a search warrant. Accordingly, the lower court erred in granting appellee’s motion to suppress based on a warrantless search. The cause is, therefore, REVERSED and REMANDED for further proceedings consistent with this opinion.

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


author: COWART, Judge.

text:
    STATE of Florida, Appellant, v. Ricky Alan McDANIEL, Appellee.
    No. 80-78.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    No appearance for appellee.
   DISMISSAL OF APPEAL

COWART, Judge.

The State’s notice of appeal filed January 10,1980, states that the appellant is appealing an order of the trial court rendered January 9,1980, denying the State’s motion to strike appellee’s motion to dismiss and granting the motion to dismiss. Appellant failed to include in the record on appeal the order appealed and when directed by this court to supplement the record on appeal has now filed an order of the trial court dated November 12, 1980, adjudging that “State’s Motion to Strike C-4 Motion is DENIED.” Fla.R.App.P. 9.140(cXl)(A)-<I), lists the orders that the State may appeal. An order denying that State’s motion to strike a defendant’s motion to dismiss is not appealable by the State. The appeal is

DISMISSED.

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


author: PER CURIAM. HUBBART, Chief Judge

text:
    Charles J. SCHMALZRIED and Robert E. Caldwell, Appellants, v. Emery M. FINDLEY, Jr., Appellee.
    No. 80-601.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1981.
    Rehearing Denied March 13, 1981.

      Adams & Ward and Robert C. Ward, Miami, for appellants.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Bertha Claire Lee, William Snow Frates, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ, J., and LILES, WOODIE A. (Ret.), Associate Judge.
   PER CURIAM.

The summary judgment entered below is reversed because the record reflects a genuine, triable issue as to whether the plaintiff-brokers earned their commission by producing a buyer ready, willing, and able to purchase on terms acceptable to the defendant-seller, and upon which he actually and specifically agreed. Hopkins v. Gibson Furniture, Inc., 312 So.2d 499 (Fla. 2d DCA 1975); Jerry Norris, Inc. v. Ackel, 311 So.2d 712 (Fla. 4th DCA 1975); Cammack v. Leonhardt, 302 So.2d 170 (Fla. 4th DCA 1974); see generally, Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Reversed.

HUBBART, Chief Judge

(dissenting).

I must respectfully dissent. I would affirm the final summary judgment under review because, in my view, there is no genuine issue of material fact as to whether the plaintiff real estate brokers herein earned their commission by producing a buyer ready, willing, and able to purchase the subject multi-million dollar business upon terms acceptable to their client, the defendant seller. The record with unmistakable clarity shows that the defendant seller emphatically rejected the putative buyer’s offers to buy, that the said buyer’s terms were never finalized or accepted by the defendant seller, and that, at best, the parties merely engaged in lengthy negotiations which eventually broke down. The defendant seller was, accordingly, entitled to a final summary judgment in his favor. McAllister Hotel, Inc. v. Porte, 98 So.2d 781 (Fla.1957); Wilder v. Burton, 317 So.2d 776 (Fla. 3d DCA 1975); Zaydon v. Wilder, 305 So.2d 81 (Fla. 3d DCA 1975), cert. dismissed, 330 So.2d 133 (Fla.1976).

I would affirm.


author: FRANK D. UPCHURCH, Jr., Judge. MELVIN, WOODROW M., Associate Judge,

text:
    In re the ESTATE OF Mamie Johnson MATCHETT, deceased. Edna P. ROGERS, Appellant, v. Edgar JOHNSON, as Personal Representative of the Estate of Mamie Johnson Matchett, Appellee. In re the ESTATE OF Florence Johnson LIVINGSTON, deceased. Edna P. ROGERS, Appellant, v. Edgar JOHNSON, as Personal Representative of the Estate of Florence Johnson Livingston, deceased, Appellee.
    Nos. 79-12, 79-13.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 1981.
    Rehearing Denied March 3, 1981.

      John D. Mussoline of Clark & Mussoline, Palatka, for appellant.
    Alan B. Fields, Jr. of Dowda & Fields, P. A., Palatka, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Two cases arising from two separate claims filed by the appellant Edna P. Rogers have been consolidated for appeal.

The following dates and acts are the basis for this appeal:

January 10,1979 Claim filed by Edna Rogers.
March 20,1979 Objection to claim with motion to strike or expunge claim filed by personal representative and notice of hearing on claim.
June 5,1979 Motion to strike objection to claim and petition for distribution mailed by Rogers. Notice of hearing on claim, set for June 27, mailed on June 6,1979.
June 26,1979 Motion to quash the motion to strike and notice of hearing filed by personal representative.
June 27,1979 Motion for extension of time to file suit made by Rogers.
July 9,1979 Circuit Court denied Rogers’ motions to strike the objection, notice of hearing and petition for distribution. Personal representative’s motion to quash and Rogers’ motion for extension of time also denied.

Appellant filed a notice of claim in the proceedings on January 10, 1979, alleging that she was a close friend of the decedent, Mamie Johnson Matchett, and that in April, 1976, decedent created a joint and survivor-ship savings account in the name of decedent, decedent’s sister, and appellant. It was further alleged that in 1977, decedent and her sister were adjudged incompetent and that Thomas Dowda was appointed guardian. As guardian, Dowda purportedly closed the account in October, 1977, and deposited the funds in a certificate of deposit. The decedent and her sister died intestate but due to the guardian’s action, appellant did not receive the balance of the savings account. Appellant claims she had and still has possession of both passbooks.

The motion to strike or expunge the claim and the hearing scheduled thereon was an unusual departure from probate procedure provided in section 733.705(2) and (3). The purpose of the hearing stated in the notice was to consider the personal representative’s objection to the claim and the motion to strike. The date of the hearing was scheduled for May 21, 1979, more than thirty days after the date of the objection. Unless the personal representative’s notice and motion to strike tolled the thirty day period in which claimant could bring an independent action on the claim, or constituted good cause for the court to extend the time, claimant was barred under section 733.705(3).

Appellant contends that Rule 1.140(b), Florida Rules of Civil Procedure, should apply (see Committee note) arguing that Rule 5.025(b), Florida Rules of Probate and Guardianship Procedure, make the Rules of Civil Procedure applicable in adversary proceedings. While we agree with appellant’s premise, and the record clearly reveals the adversary nature of this proceeding, we disagree that Rule 1.140(b) applies. The motion to strike was not directed to an “insufficient legal defense” but rather to appellant’s claim.

However, we do agree that the personal representative’s failure to follow established, traditional procedures misled appellant and constitutes good cause to permit an extension of time within which claimant may file an independent action. The granting or refusal of an extension of time to commence action upon a claim to which objection has been properly made is a matter within the broad judicial discretion of the probate judge. In re Estate of Herskowitz, 342 So.2d 530 (Fla. 3d DCA 1977). In In re Kemp’s Estate, 177 So.2d 757 (Fla. 1st DCA 1965), however, the court inferred that actions or representations of a representative of an estate which have the effect of inducing a claimant to delay institution of his action beyond the statutory period may justify an extension of time within which to bring suit. The action of the personal representative in the instant case in departing from established procedure had the effect of lulling appellant into a false sense of security and induced her to ignore the clear provision of the statute. This is especially true since the personal representative initiated this departure. Therefore, under the peculiar facts of this case, we hold that the trial judge abused his discretion in refusing to grant an extension. See also, Sessions v. Jelks, 194 So.2d 307 (Fla. 1st DCA 1967).

We therefore reverse and remand to the trial court for entry of an order extending the period (not to exceed fifteen (15) days) within which appellant may bring an independent action.

REVERSED and REMANDED.

ORFINGER, J., concurs.

MELVIN, WOODROW M., Associate Judge, dissents with opinion.

MELVIN, WOODROW M., Associate Judge,

dissenting.

I respectfully note my dissent to that portion of the court’s opinion that concludes that the able trial judge abused his discretion in denying the appellant-claimant additional time within which to file suit upon her claim, which had been previously objected to by the personal representative. The objection filed by the personal representative was clear and concise. The personal representative did nothing that would induce the claimant to conclude that her claim would be willingly paid. The claimant did not file suit upon her claim within the required period of time. Ignorance of or indifference to applicable statutes and rules of procedure is insufficient in my judgment to establish good cause for the trial court to grant an extension of time or for this court to fault the trial court for failure to grant such extension. I perceive the trial court correctly disposed of this matter and I would affirm.

      . Section 733.705, Florida Statutes (1979), provides:
      (2) On or before the expiration of 4 months from the first publication of notice of administration, a personal representative or other interested person may file a written objection to any claim. An objection filed to an unma-tured claim matures it for the purpose of bringing an action on it. If an objection is filed, the person filing it shall serve a copy of the objection by registered or certified mail to the address of the claimant as shown on the claim or delivery to the claimant to whose claim he objects or the claimant’s attorney of record, if any, not later than 10 days after it has been filed, and also on the personal representative if the objection is filed by any interested person other than the personal representative. Failure to serve a copy of the objection constitutes an abandonment of the objection.
      (3) The claimant shall be limited to 30 days from the date of service of an objection within which to bring an independent action upon the claim. For good cause, the court may extend the time for filing an objection to any claim or the time for serving the objection, and may likewise extend the time for filing an action or proceeding after objection is filed. The extension of time shall be granted only after notice. No action or proceeding shall be brought against the personal representative after the time limited above. If an objection is filed to the claim of any creditor and an action is brought by the creditor to establish his claim, a judgment establishing the claim shall give it no priority over claims of the same class to which it belongs.

      . The basis of this argument is that the personal representative’s motion was one to strike an insufficient legal defense which under Rule 1.140(b), Florida Rules of Civil Procedure, would toll the time for a responsive pleading.


text:
    The STATE of Florida, Appellant, v. Jerry Lamon HOWARD, Appellee.
    No. 79-1338.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Rehearing Denied March 13, 1981.

      Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Mark Silverstein, Miami Beach, for appel-lee.
    Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order under review which suppresses certain evidence in a criminal case below is reversed and the cause is remanded to the trial court for further proceedings upon a holding that: (1) the war-rantless search of the defendant’s tote bag by the police was reasonable within the meaning of the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution as it was conducted pursuant to the defendant’s free and voluntary consent, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Grimes v. State, 244 So.2d 130, 133 (Fla.1971), which consent was untainted by an alleged prior illegal seizure of the defendant because (a) no seizure had been accomplished when the subject consent was given, State v. Frost, 374 So.2d 593 (Fla. 3d DCA 1979), and (b) even assuming such prior illegal seizure had been accomplished at the time the subject consent was given, the taint therefrom was dissipated by subsequent police advisements that the defendant had a right to refuse said search, Husted v. State, 370 So.2d 853 (Fla. 3d DCA 1979); St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978); and (2) the warrantless search of the defendant’s person by the police, which yielded the contraband suppressed below, was reasonable within the meaning of the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution as it was conducted incidental to a valid arrest of the defendant based, as it was, on the total circumstances of the case including certain incriminating evidence properly seized from the defendant’s tote bag. State v. Gustafson, 258 So.2d 1 (Fla.1972), aff’d, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); § 901.21, Fla.Stat. (1979).

Reversed and remanded.


author: HENDRY, Judge.

text:
    Teresamma PINAKATT, Appellant, v. MERCY HOSPITAL, INC., Sister Mary Immaculate Moraglia, Jessie Birdseye, R.N., and Michael Schuster, Appellees.
    No. 79-2435.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Rehearing Denied March 13, 1981.

      Kurzban & Kurzban and Steven M. Weinger, Miami, for appellant.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellees.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   HENDRY, Judge.

This appeal is from an order dismissing appellant’s complaint for failure to comply with discovery orders.

Appellant Teresamma Pinakatt, the plaintiff below, was employed as an EKG technician by Mercy Hospital until she was fired for unsatisfactory performance. After her discharge, appellant sued in four counts alleging that appellees individually and as a group sought to deprive appellant of her livelihood in the medical field. The trial court subsequently dismissed three of the four counts without leave to amend for failure to state a cause of action.

Litigation continued as to the remaining count which alleged common law conspiracy. In the meantime, appellant obtained a position in the medical field with a new employer. Despite discovery requests from the appellees, appellant refused to divulge the name of her new employer and the name of a former employer. The basis for appellant’s refusal was her apprehension that appellees would attempt to deprive her of her present job.

The trial court entered an order on motion to compel the appellant to disclose this information. She again refused, declining an extension of time in which to reveal her employers. As a result, the trial court entered an order striking the remaining count of appellant’s complaint and dismissing the action with prejudice. It is from this order of dismissal that appeal is taken. We find no reversible error.

The Florida Rules of Civil Procedure provide sanctions which may be taken when a party fails to make discovery. Rule 1.380(b)(2)(C) states, inter alia, that:

(b) Failure to Comply With Order
* * * * * *
(2) If a party ... fails to obey an order to provide or permit discovery ... the court in which the action is pending may make any of the following orders:
# * * * * *
(C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party; (e.s.)

A decision to impose sanctions, and the severity thereof, are matters within the sound discretion of the trial court. W.G.C., Inc. v. The Man Co., 360 So.2d 1152 (Fla. 3d DCA 1978). The trial court’s ruling should not be overturned unless there is an apparent abuse of this discretion. Eastern Airlines, Inc. v. Dixon, 310 So.2d 336 (Fla. 3d DCA 1975).

Clearly then, a trial court is vested with the authority to dismiss a complaint as a sanction against a plaintiff for failure to make discovery:

When a plaintiff invokes the jurisdiction of a court and seeks to avail himself of it he does so with the understanding that he must abide by all lawful statutes, rules and orders applicable to him, and the court has inherent power to impose the sanction of dismissal, for its coercive effect, (citations omitted)

Surrency v. Winn & Lovett Grocery Co., 160 Fla. 294, 297, 34 So.2d 564, 565 (1948). Furthermore, the dismissal may be with prejudice where a plaintiff willfully refuses to obey an order of the court. Rashard v. Cappiali, 171 So.2d 581 (Fla. 3d DCA 1965).

Upon consideration of the record, briefs, argument of counsel, and the authorities cited above, we are unable to say that the trial judge abused his discretion in dismissing appellant’s suit.

Appellant voluntarily solicited the court’s jurisdiction. In order to defend themselves against the charges raised, the appellees justifiably sought the identity of appellant’s past and present employers, a matter well within the scope of discovery as defined by Rule 1.280(b), and relevant to the issue of whether appellees conspired to prevent appellant’s employment in the medical field. The trial judge’s imposed sanction of dismissal with prejudice is amply justified, based on appellant’s willful refusal to comply with the court’s order.

We have carefully examined appellant’s remaining points on appeal and find them to be without merit. Accordingly, the judgment appealed is affirmed.

Affirmed.

      . In addition to Mercy Hospital, the appellees include Michael Schuster, a hospital employee who discharged appellant; and Sister Mary Immaculate Moraglia and Jessie Birdseye, also hospital employees.


author: SCHWARTZ, Judge.

text:
    Beatrice JAFFEE, Appellant, v. Marvin JAFFEE, Appellee.
    No. 80-146.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Rehearing Denied March 3, 1981.

      Rubin & Friedman and Melvin A. Rubin, Miami, for appellant.
    David M. Gersten, Miami, for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   SCHWARTZ, Judge.

The ex-Mrs. Jaffee appeals from an order reducing the alimony provided in a November, 1970 “property settlement agreement,” as incorporated into a final judgment of divorce entered in January, 1971. She also challenges the trial court’s order that her former husband pay only half of the $12,500 in reasonable attorney’s fees required for her defense of the modification proceeding. We reverse on both counts.

When their marriage broke up in 1970, the Jaffees had been married for over 20 years and had four children, ranging in age from 13 to 19. Dr. Jaffee was — and still remains — an active and successful pathologist. Mrs. Jaffee is a registered nurse, but had devoted the vast majority of her recent efforts to her domestic duties. The agreement, which both parties executed with the advice of respective counsel, provided for support payments of $250 per child per month until 21, and the disposition of the marital home after the last child had left, with the proceeds to be evenly divided. On the now-critical issue, it was agreed that Dr. Jaffee would pay permanent periodic alimony of $1,000 per month, subject to cost-of-living adjustments. It was further expressly stated:

The parties acknowledge that the Wife is a trained registered nurse with supervisory experience, and in the event that the Wife should resume her nursing career in order to supplement her income, such resumption of work by the Wife shall not be the basis for the Husband to seek a reduction in alimony due to the Wife.

In 1978, after two prior unsuccessful attempts to do so, Dr. Jaffee filed the present motion to reduce or eliminate his alimony obligation. Although there was some reference to an alleged diminishment in the husband’s earning abilities, the primary thrust of the proceeding was that modification was justified by changes in Mrs. Jaf-fee’s financial circumstances. By the time of the hearing on the motion in 1979 — when the alimony payments had become $1,500 per month — Mrs. Jaffee was 58, the children had all reached 21 and the home had been sold. Although she had received no other funds since the divorce, Mrs. Jaffee’s half of the proceeds of the home had been converted into some $70,000 in assets of various kinds, including a $5,000 deposit on a new condominium residence. Insofar as employment was concerned, Mrs. Jaffee was listed with a nursing registry, from which she averaged approximately one day of work per week. Although she said she wanted to work more often, she also acknowledged that she had not sought full-time employment both because of her health and, more important, because she simply did not wish, at her age, to recommence full-time work after thirty years of not having done so. She continued instead to rely heavily upon the alimony payments in order to support herself.

On the basis of this testimony, the trial judge granted the husband’s motion in part, holding:

The Court finds and determines that there has been a substantial change of circumstances in this case to justify a modification and that the husband is entitled to a reduction, but not an elimination of alimony entirely.
The Court finds and determines that there has been a substantial change in the financial condition of the parties. The children of the marriage are no longer minors and they do not reside in the marital home with the Mother. In fact, the marital home has been disposed of and the wife is in the process of purchasing a condominium home.
The Court finds and determines that both parties have financial resources and assets of their own.
The Court finds and determines that the wife is a fully licensed Registered Nurse and while she chooses on her own volition to work only one day a week she is both physically able and employment is available should she desire.
The Court finds and determines that the wife’s testimony that her needs are approximately $36,000 yearly is unrealistic. The wife is a single, healthy, licensed Registered Nurse who can play tennis and otherwise has a normal activity schedule.

In accordance with these determinations, the court reduced the $1,500 alimony provision to $900 per month for a period of five years, after which the issue was to be reexamined. This order is entirely unsupported by the controlling law and cannot be approved. While the trial court correctly determined that the alimony provision of the Jaffees’ agreement was in fact generally subject to modification upon a proper showing, § 61.14, Fla.Stat. (1977), the grounds relied upon below — the “changes” in Mrs. Jaffee’s financial situation and availability for additional employment— were plainly, and as a matter of law, insufficient to justify the granting of that relief in this case. This is so because of the effect of two separate rules of law, both of which are directly contrary to the order under review.

No Unanticipated Change of Circumstances. In the first place, it is well-established that an alimony award may not be modified because of a “change” in the circumstances of the parties which was contemplated and considered when the original judgment or agreement was entered. E. g., Withers v. Withers, 390 So.2d 453 (Fla. 2d DCA 1980); Coe v. Coe, 352 So.2d 559 (Fla. 2d DCA 1977); Ashbum v. Ashburn, 350 So.2d 1158 (Fla. 2d DCA 1977); Howell v. Howell, 301 So.2d 781 (Fla. 2d DCA 1974); Waller v. Waller, 212 So.2d 352 (Fla. 3d DCA 1968); Tewksbury v. Tewksbury, 178 So.2d 346 (Fla. 2d DCA 1965). The reason for this doctrine is an obvious one: if the likelihood of a particular occurrence was one of the factors which the court or the parties considered in initially fixing the award in question, it would be grossly unfair subsequently to change the result simply because the anticipated event has come to pass. Both the rule itself and its rationale apply directly to this case. All of the “changes” in Mrs. Jaffee’s situation were known, anticipated, and bargained about when the parties formulated their agreement in 1970:

(a) The obvious fact that the children would all eventually turn 21 and leave the home was provided for by the elimination of the husband’s obligation to pay child support, specifically without any effect on the permanent alimony payments; see, Coe v. Coe, supra; Waller v. Waller, supra;
(b) Mrs. Jaffee’s receipt of substantial funds from the sale of the marital home was the result of the specific provision to that effect in the agreement (which, again, nevertheless did not provide for a reduction in alimony when the sale took place). Ashbum v. Ashbum, supra; Howell v. Howell, supra; compare, Friedman v. Friedman, 366 So.2d 820 (Fla. 3d DCA 1979), cert. denied, 376 So.2d 71 (Fla.1979), in which the wife received a large inheritance after the divorce.
(c) As to the element which most influenced the trial court, both parties obviously were aware of Mrs. Jaffee’s education and training as an R.N., and of the fact that she would become available to take on more work after the children grew up and moved away. See, Coe v. Coe, supra; Waller v. Waller, supra. In this connection, it should be emphasized that, unlike Friedman v. Friedman, supra, and Anderson v. Anderson, 333 So.2d 484 (Fla. 3d DCA 1976), upon which the trial court relied, Mrs. Jaffee is not actually self-supporting without reliance on the alimony, but merely has the alleged potential ability to become so.

Based on an analysis similar to this one, Withers v. Withers, supra, reversed the elimination of an alimony obligation in an “aging ex-wife-R.N. v. ex-husband-M.D.” dispute in which the facts, in many respects, were remarkably like these. We would also find that the order below is unjustified even in the absence of the husband’s specific contractual waiver, to the effect of which we now turn.

Husband Contractually Precluded from Reliance on Wife’s Employability. As we have seen, the primary basis for reducing the agreed-upon alimony payments was the trial judge’s view that, if she wished, Mrs. Jaffee could support herself through her earnings as a qualified registered nurse. Even assuming the factual accuracy of this determination, Dr. Jaffee is precluded from relying upon it, as he successfully did below, by his specific contrary agreement that any “resumption of [her nursing career] by the Wife shall not be the basis for the Husband to seek a reduction in alimony.... ” [e. s.] There is no question of the validity and binding effect of this contractual undertaking, viewed either as a limited waiver of an otherwise existing right to seek modification, see, Lee v. Lee, 157 Fla. 439, 26 So.2d 177 (1946); Kilpatrick v. McLouth, 392 So.2d 985 (Fla. 5th DCA 1981) (complete waiver of right to modification valid); Muss v. Muss, 390 So.2d 415 (Fla. 3d DCA 1980) (same); Turner v. Turner, 383 So.2d 700 (Fla. 4th DCA 1980) (same); or, more straightforwardly, as a provision that sums which Mrs. Jaffee actually earns (which, a fortiori includes sums which she merely could earn) from nursing shall not be deducted from the amount the husband must pay. See, e. g., Pusey v. Pusey, supra, 386 So.2d at 271, n.1. Moreover, the meaning of the clause in question is entirely unambiguous, and is clearly conveyed by the plain language employed by the agreement itself. While Dr. Jaffee testified that it was his “intent” that the clause was not to apply after the children left the home, it is apparent that this testimony was incompetent as an attempt to vary the terms of a written document through the insertion of qualifying language which does not appear on its face. Ross v. Savage, 66 Fla. 106, 63 So. 148 (1913); Davis v. Fisher, 391 So.2d 810 (Fla. 5th DCA 1980) (Case no. 79-284, opinion filed, December 31, 1980); Pearson v. Pearson, 342 So.2d 1018 (Fla. 4th DCA 1977); see also, Gendzier v. Bielecki, 97 So.2d 604 (Fla.1957); Pusey v. Pusey, supra; Coe v. Coe, supra; cf., Bacardi v. Bacardi, 386 So.2d 1201 (Fla. 3d DCA 1980).

The order below represents, therefore, no less than the judicial abrogation of a particular contractual provision so as to relieve one party of its burdens and deprive the other of its benefits. But, as we have said recently in another context, courts simply do not possess any such authority, in the case of an agreement of this type or of any other. Twenty Four Collection, Inc. v. Keller, 389 So.2d 1062 (Fla. 3d DCA 1980).

The appellee contends that the effect of this holding will be to encourage his ex-wife to rely upon him for a lifetime, rather than to engage in the remunerative work of which she is capable. The primary answer to this argument is that, for his own reasons and in return for his own benefits, Dr. Jaffee specifically agreed that she should be entitled to do so. In common with all contracting parties, the appellee should be held to his bargain. As this court, speaking eloquently through Judge Baskin, recently held in the similar case of Adler v. Adler, 391 So.2d 242 (Fla. 3d DCA 1980):

[The husband] argues that the agreement creates a windfall for the wife and places disproportionate obligations upon the parties. The husband’s argument is totally devoid of merit. He apparently seeks to overturn the property settlement agreement he voluntarily entered and to avoid its consequences. Such action would render his agreement meaningless as the product of whim rather than of thoughtful planning to determine the parties’ rights. We find no error in the court’s action incorporating the agreement into the final judgment of dissolution. Since the agreement expressed the intent of the parties, the trial court erred in failing to enforce its provisions, [e. s.]

For these reasons, we hold that the appellee did not carry the exceptionally heavy burden required to set aside an alimony allowance fixed by agreement. Floyd v. Floyd, 393 So.2d 22 (Fla. 2d DCA 1981); Tsavaris v. Tsavaris, 307 So.2d 845 (Fla. 2d DCA 1975), cert. denied, 322 So.2d 914 (Fla.1975); Nixon v. Nixon, 200 So.2d 263 (Fla. 3d DCA 1967). Accordingly, the order of modification is vacated. After remand, the husband’s obligation to pay alimony shall be restored nunc pro tunc to that required by the terms of the agreement.

Our determination that Dr. Jaffee’s attempt to reduce or eliminate the alimony provisions of the existing agreement was totally meritless removes any arguable justification for the finding that he should pay only half of the appellant’s reasonable attorney’s fees. Since the services involved were expended only in the now-successful defense of the husband’s motion, we see no reason why he should not be liable for the entire fee that action required. Northup v. Northup, 217 So.2d 850 (Fla. 3d DCA 1969); Waller v. Waller, supra; Cordrey v. Cordrey, 206 So.2d 234 (Fla. 2d DCA 1968), appeal dismissed, 214 So.2d 617 (Fla.1968); cf., Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980). The requirement that the husband pay $6,250 to the wife’s attorneys shall therefore be increased to the full $12,-500 found by the trial court to be a reasonable amount for those services.

Reversed.

      . The personal, if not the legal, situation was strongly exacerbated by the fact that Dr. Jaffee remarried almost immediately after the divorce and thus acquired a new and additional set of familial responsibilities. On the other hand, Mrs. Jaffee did not remarry and continued to rely upon the obligations imposed upon her ex-husband by the law, the agreement, and the judgment of divorce. Thus required to pay for two wives, while getting the “benefits” of only one, Dr. Jaffee, like so many former-and-present-husbands in his situation, has spent much of the intervening decade trying to escape from this predicament. The real problems with his dilemma are that it is essentially one of his own making and that the legal rights of another person, his ex-wife, must also be respected and enforced.

      . Dr. Jaffee, although hindered by arthritis, remains in active practice and earns at least $100,000 per year from his P.A., which practices pathology at Baptist Hospital. In a loan application, he represented his net worth as in excess of $500,000. There is thus no support— and the trial judge did not so find — for any conclusion that the husband is not financially able to make the payments provided by the agreement, and therefore no basis for affirmance of the modification because of a change in the husband’s situation. Withers v. Withers, 390 So.2d 453 (Fla. 2d DCA 1980); Osman v. Osman, 280 So.2d 67 (Fla. 3d DCA 1973), cert. denied, 289 So.2d 6 (Fla.1973).

      . This ruling of course also negated any further cost of living increments provided by the agreement and judgment.

      . Despite its title, the agreement was merely a settlement of the wife’s claim for alimony and support. It did not provide for Mrs. Jaffee’s relinquishment of some property right in consideration for Dr. Jaffee’s undertaking to pay alimony, which might have rendered the agreement not subject to modification. See, Salomon v. Salomon, 196 So.2d 111 (Fla. 1967); Pusey v. Pusey, 386 So.2d 269, 271 (Fla. 3d DCA 1980).

      .It should be remembered that the “property settlement agreement” was basically a negotiated settlement of the then-pending divorce action. As in the case of every such agreement, it is presumed that Dr. Jaffee gained a benefit — perhaps of a lower fixed amount of alimony — as a quid pro quo for the insertion of the “employment” clause which was favorable to the wife. Moreover, Dr. Jaffee obviously thought it was in his best interests to execute the completed agreement so as to avoid a contested trial which might have produced much more unfavorable results. These facts — which find their counterpart in every contract which is the result of arms-length bargaining — illustrate the unfairness and unwisdom in changing only a part of this or any agreement in order to benefit only the single party who finds it burdensome.

      . Not least of these benefits is the discharge of the obligations owed his wife of 20 years and the mother of his children. Colucci v. Colucci, 577 So.2d 392 (Fla. 3d DCA 1980).

      . The appellee’s and the trial court’s reliance upon Friedman v. Friedman, supra, and Anderson v. Anderson, supra, is misplaced not only because, as we have noted, Mrs. Jaffee has never become self-supporting, but also because neither case involved, as does this one, a specific waiver by the husband of the right to rely upon the wife’s capacity for self-support.


text:
    FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant, v. Pascual PALOMINO, Appellee.
    No. 80-462.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Rehearing Denied March 20, 1981.
    Jeanne Heyward, Marco B. Loffredo, Miami, for appellant.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Claudia B. Greenberg, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

This appeal by Fidelity & Casualty Company of New York is from an order entitled Amended Order and Summary Judgment in which the Court held that Fidelity’s policy extended coverage to the collision which was the subject of the suit. The order was entered nine months after a regularly entered final judgment against Fidelity, which was pursuant to a regularly entered default. The final judgment was not appealed. We hold that the order appealed was without legal effect, but that the final judgment entered on May 25,1979 for Pascual Palomino and against Fidelity & Casualty Company of New York is binding and in full force and effect.

The confusion on this matter arose because the counsel for Fidelity urged and the trial judge was persuaded after the entry of the default that Fidelity could still contest the issue of coverage. Nevertheless, the judge denied Fidelity’s motion to set aside the default and thereafter entered final judgment on the default.

The final judgment settled all the issues which were raised by the pleadings between the parties. A trial court has no authority to modify, amend or vacate a final order except in the manner and within the time provided by rule or statute. Kippy Corporation v. Colburn, 177 So.2d 193 (Fla.1965); Board of Public Instruction of Dade County v. Dinkines, 278 So.2d 663 (Fla. 3d DCA 1973); Hardin v. Wilkinson, 371 So.2d 585 (Fla. 1st DCA 1979). The trial judge recognized and followed this principle in his order of January 9, 1980 where he stated that the final judgment of May 25, 1979 was in full force and effect. His subsequent order, which is now appealed, attempted to clarify the matter by entering a “summary judgment”. While this order was unnecessary, it did correctly define the status of the parties as to the coverage issue. Therefore, it is affirmed.

Affirmed.