author: SCHWARTZ, Judge.

text:
    M. Jeannine Beth COLUCCI, Appellant, v. Raymond Peter COLUCCI, Sr., Appellee.
    No. 80-796.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Rehearing Denied Jan. 19, 1981.
    Mason & Meyerson and John C. Maine, Jr., Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    George, Hartz & McNary and Charles K. George, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and PEARSON, DANIEL, JJ.
   SCHWARTZ, Judge.

The appellant-wife makes the now-familiar contention that she has been “shortchanged” by the financial provisions of the judgment which dissolved the 24-year marriage of the parties. Specifically, she claims error in the granting of rehabilitative, rather than permanent periodic alimony, in the amounts fixed for alimony and child support, and in the failure to make an award of lump sum alimony so as equitably to distribute assets accumulated during the marriage. We affirm in part and reverse in part.

The record in this case portrays a human situation which is increasingly a feature of modern society, and is therefore far from unfamiliar to our courts. The Coluccis married in 1955, when she was 18 and he was 23. Both commenced to play their then-traditional roles in the marriage. Apart from some employment as a cashier and waitress in the first year or two, Mrs. Co-lucci devoted almost all her energies to her duties as a housewife and in raising their five children. Mr. Colucci supported the family as a successful mechanical engineer and business executive. The model of this distribution of functions contemplates, however, both as a societal ideal, and to assure the economic security of the non-earning partner, that the parties continue together in that relationship. But in a quarter-century, times, attitudes and people change. As in so many other instances, the Coluccis did not remain married, and the courts have been left to resolve, as best they can, the dislocations which result from the 1980s breakup of a 1950s institution.

At least economically, the dislocation in the Coluccis’ case was almost entirely one-sided. At the age of 42, Mrs. Colucci has a high school diploma, some college credits- and no significant work experience or marketable skills. While she expressed a commendable desire to secure a college degree and remunerative employment, she had no firm ideas concerning the field for which she was suitable or even as to the one she wished to enter. Apart from some trivial sums she receives for English language tutoring and the rental of a room, support from her husband is her only source of income. Her capital assets consist of a $3,200 savings account, two old cars, and her half-interest in the marital home which was held by the entireties, and which has a total equity of more than $100,000. She must also care for the two younger children, a girl, 11 and a boy 15, who were placed in her custody, and. who, together with a boy who has just turned 18 and has dropped out of school, live with her at home.

On the other hand, Mr. Colucci is now employed as a vice-president of Milgo Corporation. His gross annual salary is $79,000 (from which he takes home approximately $4,500 per month) plus various fringe benefits, including a vested interest, of constantly growing value, in his employer’s pension plan. As a result of receiving about $95,000 in a stock option payment during 1978 and 1979, Colucci has purchased an annuity worth over $25,000 and owns over $25,000 in other assets, in addition to his interest in the marital home.

The trial judge’s disposition of the wife’s financial demands, as reflected in a final judgment of January 24, 1980 and an order on rehearing entered on March 12, was as follows:

1. Mrs. Colucci was granted $1,000 per month in rehabilitative alimony for four years; the court specifically reserved jurisdiction to consider awarding permanent alimony or extending the rehabilitative award beyond that period. In addition, Mr. Coluc-ci was required to pay for the wife’s pre-admission testing, and for up to four years of tuition and books required if she in fact attended college.

2. $200 per month was awarded for support of each of the two minor children.

3. The wife’s request for lump sum alimony, or for the adjudication of a special equity in the marital home were denied. Instead, the Coluceis were rendered tenants in common of the residence. Mrs. Colucci was granted exclusive possession during the minority of the children or until she remarried. During that time, the husband was required to pay the entire mortgage payments, taxes, insurance and major maintenance. At the end of that period, the parties were to sell the house and divide the proceeds equally with the husband given credit only for any major maintenance expenditures.

On this appeal, the wife first argues that she should have been awarded permanent alimony. We agree. As we have indicated, Mrs. Colucci manifestly has no present ability to support herself and no reasonable prospects that she will be able to do so in the future. There is nothing but hopeful speculation that her admirable desire to be employed will be fulfilled in any meaningful fashion even should she indeed receive a bachelor’s degree within the next few years. Judicial notice may be taken that the job market is not favorable for a recent female college graduate in her late 40s, with a child at home and with no previous experience. And even the most sanguine could not believe that she would ever earn an amount which could serve to discharge entirely her ex-husband’s obligation to contribute to the support of the person who was his wife and homemaker for 24 years and the mother of his five children. We find this case conceptually indistinguishable, therefore, from a veritable host of decisions in which, on similar facts, this and our fellow courts of appeal have held that permanent alimony is required as a matter of law. Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980); Ciraco v. Ciraco, 363 So.2d 53 (Fla. 3d DCA 1978); McCloskey v. McCloskey, 359 So.2d 494 (Fla. 4th DCA 1978), cert. denied, 368 So. 1370 (Fla.1979); Gratton v. Gratton, 358 So.2d 262 (Fla. 3d DCA 1978); Garrison v. Garrison, 351 So.2d 1104 (Fla. 4th DCA 1977), (per Alderman, J.); Bowen v. Bowen, 347 So.2d 675 (Fla. 3d DCA 1977); West v. West, 345 So.2d 756 (Fla. 4th DCA 1977); Hawkesworth v. Hawkesworth, 345 So.2d 359 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 514 (Fla.1978); McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), cert. denied, 357 So.2d 186 (Fla.1978); McNaughton v. McNaughton, 332 So.2d 673 (Fla. 3d DCA 1976), cert. denied, 345 So.2d 424 (Fla.1977); Yohem v. Yohem, 324 So.2d 160 (Fla. 4th DCA 1975); King v. King, 316 So.2d 322 (Fla. 4th DCA 1975); Blass v. Blass, 316 So.2d 308 (Fla. 3d DCA 1975); Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975); Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974), cert. denied, 312 So.2d 737 (Fla.1975); see, Kvittem v. Kvittem, 365 So.2d 791 (Fla. 4th DCA 1978) (no indication that existing earnings of wife would increase so as to justify termination of alimony after rehabilitation period or denial of permanent alimony); see also, Garrison v. Garrison, 380 So.2d 473 (Fla. 4th DCA 1980) (no indication that existing earnings of wife would increase so as to justify successive periodic diminishment of amount of permanent alimony); but cf., Barker v. Barker, 384 So.2d 925 (Fla. 1st DCA 1980).

We are unimpressed with the husband’s claim that Mrs. Colucci’s right to review and modify the rehabilitative award as conferred by both Sec. 61.14, Fla.Stat. (1979) and the specific terms of the judgment below, renders it, in effect, unimportant that permanent alimony was not formally provided. To the contrary-as is obvious from the fact that the appellee himself thinks it significant enough vigorously to argue the point-it makes a real difference that the husband, rather than the wife, will have the future burden of demonstrating a change in circumstances. As then-Judge, now-Justice Alderman said in Garrison v. Garrison, supra, 351 So.2d at 1105:

The error is harmful even though the wife may at any time during the rehabilitative period petition for a continuation of rehabilitative alimony or a modification to make the alimony permanent. This is so because the burden is placed upon the wife, to show significantly changed circumstances before there can be a modification. If she is entitled to permanent alimony it should be awarded now. Later, if the husband can show changed circumstances, either his or hers, he may be entitled to modification. Wilson v. Wilson, 279 So.2d 893 (Fla. 4th DCA 1973).

In accord, for example, are our decisions in Smith v. Smith, supra, McNaughton v. McNaughton, supra, and Gratton v. Gratton, supra. For these reasons, the award of $1,000 per month in periodic alimony shall, upon remand, be made permanent.

Mrs. Colucci next claims that the amounts of alimony and child support were insufficient. Tested by the reasonable person standard enunciated by Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), however, there was no abuse of discretion in these determinations. Rosenberg v. Rosenberg, 371 So.2d 672 (Fla.1979); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

Finally, the appellant earnestly argues that the failure to make a lump sum award-of either the husband’s interest in the house, its cash equivalent, or of a lesser sum-has left her in an economic position which is grossly and unfairly inferior to that of her former “partner.” As she suggests, the half interest in the home, which is the only significant property she owns as a result of the dissolution, represents less than half even of the capital assets accumulated during the marriage. Far more important, Mr. Colucci has a very substantial earning capacity and additional security provided by his annuity and his pension plan. See, Cowan v. Cowan, 389 So.2d 1187 (Fla. 5th DCA 1980); Bradley v. Bradley, 385 So.2d 101 (Fla. 5th DCA 1980). In contrast, Mrs. Colucci has no real capacity for self-support and is almost entirely dependent upon her ex-husband. If he dies, her financial situation would be no less than catastrophic. See the considerations expressed in Cowan v. Cowan, supra; Nusbaum v. Nusbaum, 386 So.2d 1294 (Fla. 4th DCA 1980); Stith v. Stith, 384 So.2d 317 (Fla. 2d DCA 1980) and Desilets v. Desilets, 377 So.2d 761 (Fla. 2d DCA 1979). The appellant contends that this state of affairs is directly contrary to the supreme court’s admonition in Canakaris, 382 So.2d at 1204, that

a trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be ‘shortchanged.’

As our discussion has indicated, we do not disagree with this position. Nevertheless, we decline at this time to determine ourselves if, or to what extent, the wife should receive a lump sum award. This is so because it clearly appears that the trial judge, to whose discretion such a matter is initially entrusted, has not yet exercised that discretion in the light of the now-prevailing law. The final judgment below was issued before Canakaris was released; rehearing was denied before it became final. When the able and conscientious chancellor made these decisions, he was bound by the pre-Canakaris rule that entitlement to lump sum was based either on “need,” like all alimony, or upon some economic contribution by the wife to the accumulation of property. See, Yandell v. Yandell, 39 So.2d 554 (Fla.1949). He could not have been aware of the monumental change in the law effected by Canakaris that lump sum alimony may, and sometimes must, be employed so as equitably to compensate the wife for the domestic endeavors now regarded as equivalent to her husband’s wage earning ones. See, Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA, 1980). As in Bullard v. Bullard, 385 So.2d 1120 (Fla. 2d DCA 1980), we thus deem it appropriate to order that, after remand, the trial judge consider the wife’s prayer for lump sum alimony in accordance with Canakaris and the cases and principles discussed in this opinion.

Affirmed in part, reversed in part and remanded for further proceedings in accordance herewith.

      . Canakaris v. Canakaris, 382 So.2d 1197, 1204 (Fla.1980); Bullard v. Bullard, 385 So.2d 1120 (Fla. 2d DCA 1980); Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cert. dismissed, 307 So.2d 186 (Fla.1975).

      . In the light of Duncan v. Duncan, 379 So.2d 949 (Fla.1980), and Ingram v. Ingram, 379 So.2d 955 (Fla.1980), the wife now concedes that there is no basis for her claim of a “special equity” in any property either jointly owned or held in the husband’s name alone. See also Farrington v. Farrington, 390 So.2d 461 (Fla. 3d DCA 1980).

      . We agree with the dissenting opinion of Judge Shivers in Barker.

      . This ruling does not disturb the husband’s obligation for the appellant’s college expenses which is properly treated as a well-justified award of rehabilitative alimony, in addition to the permanent award required by our decision. See Garrison v. Garrison, 351 So.2d 1104 (Fla. 4th DCA 1977); § 61.08, Fla.Stat. (1979).

      . It is true that this interest is worth a substantial sum. Nevertheless, its net value to Mrs. Colucci is diminished by the facts that the home is where she lives and that, if it is sold, it must be replaced by housing accommodations which, even if more modest, are subject to the same inflated expense.

      .While much has been written about what the Canakaris case means, little has been said about what it represents. In this writer’s view, the Canakaris opinion of Justice Overton, and of course the seminal opinion of Judge Rawls in Brown v. Brown, supra, which Canakaris adopted, are shining examples of the ability of the common law and common law judges to accommodate legal principles to meet the demands of fairness generated by changing social conditions and needs. See text discussion, supra. As- members of the legal profession, we all have reason, in the most basic sense, to be proud of these decisions.

      . As Cowan v. Cowan, supra; Cuevas v. Cuevas, 381 So.2d 731 (Fla. 3d DCA 1980), and other cases indicate the equitable distribution of the parties’ assets contemplated by Canakar-is may, in the light of their respective earning capacities and eligibility for other benefits, call for an award of more than half of their capital assets to the wife.

      . Because we do not believe that Canakaris affects the trial judge’s decision as to the amount of periodic alimony, we do not, unlike Bullard order reconsideration of that aspect of the judgment.


source: Caselaw Access Project

author: PER CURIAM. PEARSON, DANIEL, Judge.

license: Public Domain

text:
    Martha H. CAPPS, Appellant, v. Charles M. CAPPS, Appellee.
    No. 79-2108.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Rehearing Denied Feb. 6, 1981.
    Shalle Stephen Fine, Miami, for appellant.
    Leonard Frishman and Henry M. Cain, Coral Gables, for appellee.
    Before HUBBART, C. J., and BASKIN and PEARSON, DANIEL, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

PEARSON, DANIEL, Judge.

I dissent. The words “Canakaris v. Canakaris ” are not talismans in the presence of which the rights of divorce litigants fade away and disappear. This noteworthy decision, which is slowly, surely and mistakenly being read to mean all things to all people, does not authorize a trial court to resolve as it pleases the financial aspects of broken marriages; does not require us to place our imprimatur on whatever outcome occurs in a dissolution proceeding; and, in the present case, does not sanction an award to the wife of mere rehabilitative alimony when permanent alimony is required.

Beneath the majority’s per curiam af-firmance and the inscription “Canakaris v. Canakaris’’ lies Martha Capps, age forty-four, a homemaker for her husband and two children (now emancipated) during a twenty-three-year marriage. Martha, having spent two years in college a quarter of a century ago, was, at the time of the final hearing and for a year and a half before, employed full time as a bookkeeper, taking home about $6,000 a year. There was no evidence that Martha had any hope of significantly increasing her earnings. There was indisputable evidence that to subsist Martha needed about twice what she earned and that Charles could meet these additional needs from his income and assets. The trial court acknowledged and found this deficiency to exist. Anomalously, it awarded Martha rehabilitative alimony of $500 a month, specifically providing that the amount of the award would be reconsidered within one year.

The majority’s affirmance must stand or fall on the correctness of its silent, but obvious, conclusion that the trial court’s action was one within its judicial discretion. Were this a case involving a truly discretionary act, I would agree that we would be obliged to recognize the superior vantage point of the trial court and affirm unless we found a clear abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). But it is demonstrably not such a case. Here the trial court recognized that the wife’s earnings were inadequate to support herself. Here it was clear that if Martha needed alimony at the time of the trial court’s order, she would need it a year later, and, predictably, for years to come. Here the only proof was that Martha was as rehabilitated as she was going to be. Rehabilitative alimony, under such circumstances, is a contradiction in terms. See Canakaris v. Canakaris, supra, at 1202 (“The principal purpose of rehabilitative alimony is to establish the capacity for self-support of the receiving spouse, either through the redevelopment of previous skills or provision of training necessary to develop potential supportive skills.”).

The trial court’s action did not, then, involve an exercise of discretion, but rather the application of an existing, and well-entrenched, rule of law. That rule of law is that where a wife of a long-term marriage is working or capable of working, and the evidence shows that the present and prospective earnings from her labor, and other wherewithal, will not enable her to fully support herself, permanent, not rehabilitative, alimony, in an amount within the ability of the husband to pay, is required. Garrison v. Garrison, 380 So.2d 473 (Fla. 4th DCA 1980); Kvittem v. Kvittem, 365 So.2d 791 (Fla. 4th DCA 1979); Thomas v. Thomas, 364 So.2d 78 (Fla. 2d DCA 1978). See also Douglas v. Douglas, 361 So.2d 212 (Fla. 2d DCA 1978). Messer v. Messer, 342 So.2d 1076 (Fla. 2d DCA 1977); Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975). Since the trial court failed to apply this rule of law, we are obliged by Canakaris to reverse, not affirm.

Apparently the majority of this court shares the view of the trial court that as long as alimony, by whatever name, is awarded and the award is open to later change or extension, the choice between rehabilitative alimony and permanent alimony is innocuous. This simply is not so.

“The error is harmful even though the wife may at any time during the rehabilitative period petition for a continuation of rehabilitative alimony or a modification to make the alimony permanent. This is so because the burden is placed upon the wife to show significantly changed circumstances before there can be a modification. If she is entitled to permanent alimony it should be awarded now. Later, if the husband can show changed circumstances, either his or hers, he may be entitled to modification.” Garrison v. Garrison, 351 So.2d 1104, at 1105 (Fla. 4th DCA 1977).

See also Colucci v. Colucci, supra.

Since the determination of the amount of $500 was based on the wife’s subsistence needs and did not include any amount for schooling, training, and the like, I would reverse, with directions that the award of $500 per month be made permanent alimony.

      .This portion of the final judgment of dissolution read:
      “The Petitioner shall pay to Respondent as rehabilitative alimony the sum of $500.00 per month commencing August 1, 1979, and the amount, if any, to be paid, shall be reconsidered after the minor child shall attain age eighteen (18) years. The consideration shall occur within sixty (60) days therefrom upon application by either party.”
      The minor child was seventeen at the time of the final judgment.

      . I am cognizant of the caveat in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), that the alimony provision must be reviewed as a part' of the entire award scheme. The present case, • however presents only the narrow issue of rehabilitative versus permanent alimony, both parties conceding that the amount fixed is within tolerable limits, taking into account the total picture.

      . See cases collected in Judge Schwartz’s excellent opinion in Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980).


author: ORFINGER, Judge.

text:
    Paul D. FINNEY, Appellant, v. WONDER DEVELOPMENT CORPORATION et al., Appellees.
    No. 79-8.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 1980.
    Rehearing Denied Jan. 20, 1981.
    Henry J. Martocci, Cocoa, for appellant.
    Lloyd Campbell, Cocoa, for appellee First Federal Savings and Loan Association of Cocoa.
    Paul M. Goldman of Spielvogel & Goldman, P. A., Merritt Island, for appellee The American Bank of Merritt Island.
    Joe Teague Caruso of Wolfe, Kirschen-baum, Caruso, Mosley, Scott & Kabboord, P. A., Cocoa Beach, for appellees.
   ORFINGER, Judge.

Appellant seeks review of a non-final order granting appellees’ motion to discharge a lis pendens and dismissing three counts of a five-count complaint.

The granting of a motion to discharge a lis pendens is not among those non-final orders from which an appeal will lie, but we may consider the appeal as a petition for common law certiorari. To succeed, appellant must show that the trial court departed from the essential requirements of law, and this he has not done.

The same principle applies to the dismissal of the first three counts of the complaint. Unless they constitute separate and distinct causes of action not interdependent with other pleaded claims, they may not be appealed in a piecemeal fashion, but must await the entry of a final judgment on the remaining counts. North Indialantic Homeowners Association, Inc., v. Bogue, 390 So.2d 74 (Fla. 5th DCA 1980); Kingsland v. National Advertising Co., 384 So.2d 701 (Fla. 5th DCA 1980). The dismissed counts are interdependent with the counts that remain and cannot be appealed until after final judgment.

Certiorari is denied as to the discharge of the lis pendens and the appeal of the order dismissing Counts I, II and III is dismissed without prejudice to an appeal following final judgment.

Certiorari DENIED, appeal DISMISSED.

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

      . Rule 9.130, Fla.R.App.P. (1977).

      . Rule 9.040(c), Fla.R.App.P. (1977).

        . Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).


author: PER CURIAM.

text:
    FEDERAL INSURANCE COMPANY, Petitioner, v. MAY, ZIMA & COMPANY, et al., Respondents.
    No. 80-1914.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1980.
    Rehearing Denied Feb. 5, 1981.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Miami, for petitioner.

      Sidney A. Stubbs, Jr., of Jones & Foster, P. A., and Larry Klein, West Palm Beach, for respondents.
   PER CURIAM.

Petitioner seeks a Writ of Certiorari to quash an order of the trial court granting respondents’ motion to revoke the permission previously granted to petitioner’s out-of-state counsel to represent petitioner along with local counsel in this action. We decline to accept jurisdiction because there has been no demonstration of a departure from the essential requirements of law. Further, if prejudicial error was committed, the matter may be remedied after final judgment by appeal.

Certiorari denied.

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


text:
    The COUNTY OF VOLUSIA, a political subdivision, Appellant, v. TRANSAMERICA BUSINESS CORPORATION, etc., Appellee.
    No. 80-23.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 1980.
    Daniel R. Vaughen, Asst. County Atty., DeLand, for appellant.
    Jeffrey C. Sweet of Fink, Loucks & Sweet, Daytona Beach, for appellee.
   ORFINGER, Judge.

This is an appeal from a final judgment of the Circuit Court of Volusia County, granting appellee’s petition for a writ of certiorari and quashing an order of the County Council of Volusia County.

Before addressing the merits, we must dispose of a procedural problem. Although appellant has filed a notice of appeal and has proceeded under the rules which apply to plenary appeals, it nevertheless raises the question that certiorari may be the proper remedy, pointing to alleged conflict of decisions in this court. Appellant asks that we treat the appeal as a petition for writ of certiorari if we determine that appellant has followed the wrong path, as we are empowered to do by Rule 9.040(c), Fla.R. App.P. Appellant cites McGuire v. Nelson, 388 So.2d 42 (Fla. 5th DCA 1980) and Pridgen v. Board of County Commissioners of Orange County, 389 So.2d 259 (Fla. 5th DCA 1980) as examples of inconsistent remedies which point to apparent conflict in our decisions.

There is no conflict. In McGuire, there had been an appeal to the circuit court of a judgment of the county court. This court correctly observed that we could not entertain a second appeal, and that the procedural remedy to review the circuit court’s appellate order was by certiorari. Rule 9.030(b)(2)(B), Fla.R.App.P. In Pridgen, the appellant had sought a writ of mandamus in the circuit court directed to the Board of County Commissioners of Orange County because of the denial of a permit to carry a concealed weapon. This court pointed out that certiorari was the proper remedy in the circuit court, from which an appeal to this court would have been proper.

In this case, the petition for certiora-ri., in the circuit court was an original proceeding requesting that court to review the administrative order of the County Council of Volusia County in the interpretation of its subdivision regulations. An appeal from that order to this court is proper. Dade County v. Gayer, 388 So.2d 1292 (Fla. 3d DCA 1980); United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So.2d 296 (Fla. 3d DCA 1979); Norman v. Pinellas County, 250 So.2d 279 (Fla. 2d DCA 1971). See also McNamara Pontiac, Inc. v. Sanchez, 388 So.2d 620 (Fla. 5th DCA 1980). Since the petition for writ of certiorari in the circuit court was an original proceeding there seeking to review administrative action of the county council, review here by plenary appeal is the proper procedure.

The subdivision regulations of Volusia County were amended in 1976. The amendment provided that:

The following shall be exempt and not subject to the regulations prescribed by this chapter.
(c) ... where substantial on-site development has occurred prior to October 29, 1976.

Appellee applied to the County Council for exemption under this provision and in meetings with the administrative staff of the county demonstrated that it fell within the exception. Staff was satisfied because it reported to the County Manager that “Staff has determined and verified that $126,476 has been expended for on-site improvements, or 25.06% of the total cost of all improvements.. . . ” This figure did not include another $45,000 expended for engineering or survey fees in connection with these improvements. Although never questioning the accuracy of the figures, the County Council rejected the application for exemption.

In the final judgment, the trial court held as a matter of law that the expenditures of more than 25% of the total cost of all on-site improvements is a substantial expenditure and entitled appellee to the “substantial on-site improvement exemption” found in the subdivision regulations so that a denial of the exemption was a departure from the essential requirements of law. Appellant has not demonstrated any error in this holding.

The trial court quashed the determination of the County Council denying appel-lee the exemption, and remanded the matter to the County Council with directions that the exemption be forthwith granted. Appellant contends that the trial court had no power to direct any particular action, but only to quash the order and remand it for further proceedings consistent with its decision, relying on Ulsch v. Mountain City Mill Co., 103 Fla. 932, 138 So. 483, reh. den., 104 Fla. 418, 140 So. 218 (1932); and Tamiami Trail Tours, Inc. v. Railroad Commission, 128 Fla. 25, 174 So. 451 (1937). We are not convinced of the effect of those cases on the instant proceeding, but any error of the trial court in directing the action of the County Council was harmless. By the clear language of the subdivision regulations, once the finding is made of substantial on-site improvements, the property “shall be exempt,” so no other result was possible.

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., and CLARK, HAROLD R., Associate Judge, concur.

      . Article V, Sec. 4(b)(1) in pertinent part says:
      District courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to the supreme court or a circuit court .... (emphasis added).

        See also Fla.R.App.P. 9.030(b)(1)(A).


author: HURLEY, Judge.

text:
    STATE of Florida, Appellant, v. Ronald William MELENDEZ, Appellee.
    No. 79-2181.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   HURLEY, Judge.

The state appeals an order suppressing physical evidence and statements made by the defendant. We affirm in part and reverse in part.

The trial court entered a detailed order for which we express our gratitude. The relevant factual portion is set forth below.

The Defendant, on the 17th day of February, 1979, while driving a motor vehicle, hit a palm tree and subsequently hit a steel pole near a doctor’s office on South Dixie Highway in Palm Beach County, Florida. The officer, Gary Leach, approached the vehicle in the early hours of the morning and determined that a white male was in the driver’s seat and that this white male was later identified as the Defendant, RONALD MELENDEZ. This white male appeared to be injured and Officer Leach immediately notified the fire department medics who came to the scene and assisted him, removing the Defendant from the driver’s seat and transported him to a local hospital. Subsequently, the officer, in further investigation of the traffic incident, stayed at the scene and looked inside the interior of the vehicle and saw various white pills in the front and back of the vehicle. In addition, he apparently saw what appeared to be, what he described to be, marijuana cigarettes on the floor of the front of the vehicle. The vehicle was secured and towed away by a local towing company and Officer Leach proceeded to the hospital to interview the Defendant. At the scene of the accident, upon the initial approach by Officer Leach, it became apparent to him that the Defendant was injured and in a very dazed condition. At the hospital the Defendant appeared to be in a more lucid condition but still dazed. The attending doctor who examined the Defendant for chest pains and other symptoms indicated that the Defendant was unable to sign a consent form required by Good Samaritan Hospital in West Palm Beach, Florida.

We would add only the uncontradicted testimony of Officer Leach that when he first observed Mr. Melendez, Leach was able to smell an alcoholic odor about the defendant’s person. Based upon the foregoing, the trial court concluded that (1) the search of the vehicle was constitutionally impermissible and (2) the defendant lacked adequate capacity to knowingly and intelligently waive his Fifth Amendment rights. We respectfully disagree as to the former, but defer to the fact-finding authority of the trial court on the latter.

As with any Fourth Amendment case, the fundamental inquiry is whether the search or seizure was reasonable under all the circumstances. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). Therefore, we start by considering the officer’s state of mind as he observed the two cigarettes in the vehicle. In State v. Profera, 239 So.2d 867 (Fla. 4th DCA 1970), we quoted from Jackson v. United States, 112 U.S.App.D.C. 260, 302 F.2d 194 (1962) and Davis v. United States, 133 U.S.App.D.C. 172, 409 F.2d 458 (1969), and enunciated basic principles which govern the concept of probable cause. We said:

“... [Pjrobable cause is not to be evaluated from a remote vantage point of a library, but rather from the viewpoint of a prudent and cautious police officer on the scene at the time of arrest. The question to be answered is whether such an officer in the particular circumstances, conditioned by his observations and information, and guided by the whole of his police experience, reasonably could have believed that a crime had been committed by the person to be arrested.”
* * * # * *
“The test of probable cause is not what reaction victims — or judges — might have but what the totality of the circumstances means to police officers. Conduct innocent in the eyes of the untrained may carry entirely different ‘messages’ to the experienced or trained observer.” (Emphasis supplied.)

We reaffirm these principles and apply them to the case at bar. In doing so and after considering Officer Leach’s background, training and experience, we are compelled to conclude that he possessed probable cause to believe that the vehicle contained contraband. Adams v. State, 375 So.2d 638 (Fla. 1st DCA 1979) cert. denied, 385 So.2d 754 (Fla.1980); Smith v. State, 363 So.2d 21 (Fla. 3d DCA 1978); State v. Flores, 305 So.2d 292 (Fla. 2d DCA 1974) cert. denied, 315 So.2d 189 (Fla.1975). Thus, the question is whether Officer Leach was justified in entering the vehicle and seizing the two marijuana cigarettes plus the 53 white pills which were spread throughout the car. We answer in the affirmative.

Our response is predicated on two distinct principles which, due to the facts in the case, have joint application. The first is that a police officer may conduct a war-rantless search of a vehicle if he has probable cause to believe that the vehicle contains contraband or evidence of a crime and if the search is conducted under exigent circumstances. The second principle supplants the exigent circumstances requirement of the first rule and holds that a police officer may seize an item in plain view without a warrant when the officer observes the object from a lawful vantage point, when the seized item is immediately recognizable as evidence or contraband, and when the discovery is inadvertent.

Applying the first rule, it must be remembered that defendant’s car had veered from the roadway, run over a palm tree and struck a steel pole in a private parking lot. A wrecker was en route. This fact alone constituted an exigent circumstance sufficient to justify a warrantless entry into the vehicle. More significant, however, is the fact that the contraband was in plain view. “It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968). Thus, Officer Leach was justified in immediately seizing the two marijuana cigarettes. Furthermore, because of the defendant’s erratic driving and the resulting collision, the odor of alcohol which permeated his person, the presence of two marijuana cigarettes in the front portion of the vehicle and the fact that the vehicle was about to be removed from the scene, we hold that the officer was amply justified in seizing the 53 white pills which were spread throughout the automobile. State v. Howell, 384 So.2d 60 (Fla. 4th DCA 1980); State v. Hall, 376 So.2d 276 (Fla. 3d DCA 1979); State v. Ruiz, 360 So.2d 1320 (Fla. 2d DCA 1978); Tamburro v. State, 343 So.2d 638 (Fla. 4th DCA 1977). In this situation, it is immaterial that the defendant was not verbally placed under arrest prior to the seizure of the marijuana and pills.

On the second issue of whether the defendant lacked sufficient capacity to knowingly and intelligently waive his Fifth Amendment right to remain silent, we defer to the fact-finding authority of the trial court. It is not the function of an appellate court to substitute its judgment for that of the trial court by reevaluating the evidence presented below. Shaw v. Shaw, 334 So.2d 13 (Fla.1976). Consequently, we limit our inquiry to a determination of whether the trial court’s factual finding is supported by competent evidence. In re Estate of Wilisch, 384 So.2d 223 (Fla. 3d DCA 1980). Applying this standard, we have no difficulty in affirming that portion of the court’s order which suppressed defendant’s in-hospital statements.

Accordingly, the order is affirmed in part and reversed in part and the cause is remanded for further proceedings consistent with this opinion.

DOWNEY, J., and SHARP, G. KENDALL, Associate Judge, concur.

      . See, e. g., United States v. Hawkins, 595 F.2d 751, 752 (D.C.Cir.1978) cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 380 (1979); United States v. Soto, 591 F.2d 1091, 1099 (5th Cir.) cert. denied, 442 U.S. 930, 99 S.Ct. 2862, 61 L.Ed.2d 298 (1979); United States v. Wright, 588 F.2d 189, 193 (5th Cir. 1979).

      . Admittedly, there is some question as to the continued viability of the exigent circumstances requirement as applied to vehicle searches. The Supreme Court in United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977) observed that:
      Our treatment of automobiles has been based in part on their inherent mobility, which often makes obtaining a judicial warrant impracticable. Nevertheless, we have also sustained “warrantless searches of vehicles ... in cases in which the possibilities of the vehicle’s being removed or evidence in it destroyed were remote, if not nonexistent.” Cady v. Dombrowski, 413 U.S. 433, 441-442, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973); accord, South Dakota v. Opperman, supra, 428 U.S. at 367, 96 S.Ct. at 3095 [49 L.Ed.2d 1000]; see Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); Chambers v. Maroney, supra [399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419]; Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).
      But see United States v. Orozco, 590 F.2d 789, 793 (9th Cir.), cert. denied, 442 U.S. 920, 99 S.Ct. 2845, 61 L.Ed.2d 288 (1979); United States v. Bryant, 580 F.2d 812, 813 (5th Cir. 1978).

      . Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. White, 312 So.2d 475 (Fla. 4th DCA 1975).

      . State v. Ashby, 245 So.2d 225 (Fla.1971); State v. Hughes, 375 So.2d 615 (Fla. 3rd DCA 1979); Jester v. State, 339 So.2d 242 (Fla. 3rd DCA 1976) cert. denied, 348 So.2d 948 (Fla.1977); State v. Daniel, 319 So.2d 582 (Fla. 4th DCA 1975); Golphin v. State, 293 So.2d 755 (Fla. 2d DCA 1974).

      . Evidence: State v. Belcher, 317 So.2d 842 (Fla. 2d DCA 1975); Castle v. State, 305 So.2d 794 (Fla. 4th DCA 1974) aff'd 330 So.2d 10 (Fla.1976); Contraband; Smith v. State, 363 So.2d 21 (Fla. 3d DCA 1978); State v. Flores, 305 So.2d 292 (Fla. 2d DCA 1974) cert. denied, 315 So.2d 189 (Fla.1975); State v. Roker, 290 So.2d 525 (Fla. 3rd DCA 1974).

      . Coolidge v. New Hampshire, supra; State v. Hall, 376 So.2d 276 (Fla. 3rd DCA 1979) cert.
        denied, 386 So.2d 637 (Fla.1980); also see, United States v. Schire, 586 F.2d 15, 17-18 (7th Cir. 1978), United States v. Diaz, 577 F.2d 821, 823 (2d Cir. 1978); United States v. Piatt, 576 F.2d 659, 660-61 (5th Cir. 1978).


author: NESBITT, Judge.

text:
    RYDER TRUCK LINES, INC., Scottish and York International Insurance Group and Morris Daniel Farmer, Appellants, v. Sadie POUGH and Orbit Pough, Appellees.
    No. 80-159.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1981.

      Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and John W. Wylie, Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

This is an appeal from an order granting plaintiff/counterdefendants’ motion to dismiss an amended counterclaim. We reverse.

The action was commenced by Orbit and Sadie Pough for personal injuries sustained by them and their children when a vehicle operated by Orbit Pough and owned by his wife, Sadie, collided with a vehicle owned by defendant Ryder, operated by defendant Farmer, and insured by defendant Scottish and York International Insurance Group. Defendants filed a general denial and counterclaim against the plaintiffs for contribution under the Uniform Contribution Among Tortfeasors Act, Section 768.31, Florida Statutes (1977). On motion by the Poughs, the amended counterclaim seeking contribution was dismissed on authority of 3-M Electric Corporation v. Vigoa, 369 So.2d 405 (Fla.3d DCA 1979). The original claim of the Poughs is still pending. Therefore, the threshold question, which must be addressed, is whether defendants may appeal the dismissal of their amended counterclaim at this juncture of the case. The right to contribution arose out of the same transaction or occurrence and therefore might, at first blush, appear to be a compulsory counterclaim under Florida Rule of Civil Procedure 1.170(a). It has been uniformly held that, because of the interrelationship between an original claim and a compulsory counterclaim, no appeal could be taken from either until the final disposition of both the claim and the counterclaim. Taussig v. Insurance Company of North America, 301 So.2d 21 (Fla.2d DCA 1974); Midstate Hauling Company v. Liberty Mutual Insurance Company, 189 So.2d 826 (Fla.4th DCA 1966); Bumby & Stimpson, Inc. v. Peninsula Utilities Corporation, 179 So.2d 414 (Fla.3d DCA 1965).

Under Section 768.31(4), Florida Statutes (1977), a judgment for contribution may be maintained whether ór not the judgment has been entered in any action against two or more tortfeasors or by separate action. Because the Legislature has allowed such latitude and flexibility, we treat the counterclaim as though it were a permissive counterclaim and therefore ap-pealable. Taussig v. Insurance Company of North America, supra. Consequently, we treat this petition for common law certiora-ri as a plenary appeal. Fla.R.App.P. 9.040(c).

The trial court dismissed the amended counterclaim on authority of 3-M Electric Corporation v. Vigoa, supra. This court, having receded from that decision in Quest v. Joseph, 392 So.2d 256 (Fla. 3d DCA 1981) (en banc) and, for the reasons and authorities stated in Quest v. Joseph, the order of the trial court is reversed and remanded with instructions to reinstate the amended counterclaim.


author: CAMPBELL, Judge.

text:
    S. B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 80-1184.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1981.
    Jack 0. Johnson, Public Defender, David A. Davis, Asst. Public Defender, and Steve Houchin, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

The appellant contests his adjudication of delinquency and the order placing him on probation for the offense of dealing in stolen property. The petition filed by the state against the appellant alleged that the offense was committed on November 24, 1979. At the trial the state proved, as the time of the offense, a date different from that alleged in the petition. It is a well established rule of law that one date may be alleged in an information and another proved at trial if the proof shows the crime was committed before the information was filed and within the period of the statute of limitations. State v. Clein, 93 So.2d 876 (Fla.1957); Fla.Std.Jury Instr. (Crim.) 2.09. Such was the proof in the trial court here.

Appellant, however, urges on us an exception to that rule which was recognized in Jackson v. State, 350 So.2d 808 (Fla. 2d DCA 1977), and Mitchell v. State, 333 So.2d 89 (Fla. 1st DCA 1976). That exception has to do with cases in which the defendant relies on an alibi defense and the state has notice of that defense prior to trial.

In Jackson, the defense pled an alibi defense although it did not request the state to furnish a statement of particulars as to the specific date of the offense. In Mitchell, the state filed a pretrial demand pursuant to rule 3.200, Florida Rule of Criminal Procedure, that the defendant give notice of intent to claim alibi. The state also furnished particulars as to the date as is required by the rule. The defendant responded with the appropriate notice of alibi. In both Jackson and Mitchell, the state proved the exact date alleged in the information and statement of particulars, and the defense presented alibi testimony for that date. Regardless of the fact that all the próbf was directed to the specific date alleged, the state requested and the trial judge gave the instruction encompassing the general rule as set forth in State v. Clein and charge 2.09 of the standard jury instructions. Both Jackson and Mitchell found the giving of the instruction under those circumstances to be error and reversed the trial court.

We do not have those circumstances present in this case. The state did not demand that appellant furnish notice of intent to claim alibi pursuant to Florida Rule of Criminal Procedure 3.200. Appellant did not give notice of intent to claim alibi nor did he request a statement of particulars pursuant to Florida Rule of Criminal Procedure 3.140. On the contrary, the appellant’s required response to the discovery furnished by the state contained a witness list which contained no names of witnesses intended to be called by the appellant except that of the appellant himself.

While recognizing and adhering to the exception to the general rule recognized in Jackson and Mitchell, we decline to extend the exception to every case where alibi evidence is presented by a defendant when there has been no notice of alibi by the defendant or statement of particulars by the state.

We, therefore, affirm the trial court.

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


author: LARRY G. SMITH, Judge.

text:
    Thomas Field BREWER, Appellant, v. INSURANCE COMMISSIONER AND TREASURER, as Head of the Department of Insurance, Appellee.
    No. PP-76.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1981.

      Gerald W. Weedon and James C. Rina-man, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellant.
    Edward L. Kutter, Tallahassee, for appel-lee.
   LARRY G. SMITH, Judge.

Brewer appeals an order of the Insurance Commissioner revoking his licenses and eligibility to hold the licenses of ordinary life and general lines agent including disability insurance agent. He urges that Sections 626.611 and 626.621, Florida Statutes, under which his licenses and eligibility were revoked, are unconstitutional because they unlawfully delegate legislative authority and that the revocation of his licenses is not supported by competent substantial evidence. We affirm.

Brewer was charged with several counts of violating the insurance code by falsifying a policy loan agreement and by receiving premiums from proposed insureds, converting the money to his own use, and failing to place the insurance as agreed. After an administrative hearing, the hearing officer entered an order finding that the charges had been sustained and recommending that Brewer’s licenses and his eligibility to hold the licenses be revoked. The Insurance Commissioner agreed and entered an order accordingly.

On appeal, Brewer contends that the evidence shows only a technical commingling of funds existed due to an administrative breakdown in his office which was caused by a turnover of office personnel. He further contends that the Insurance Commissioner ignored evidence of restitution and his prior unblemished record and reputation, which demonstrated the absence of any intentional detention of funds on his part. However, our examination of the record reveals repeated instances of Brewer’s failure to return premiums due insureds, his collection of premiums for insurance coverage and his failure to obtain the insurance as agreed while retaining the premiums for his own use. In many of these instances, Brewer was contacted personally by the insureds concerning his retention of the premiums and his failure to place the insurance, but he ignored these communications and continued in possession of the premium funds for periods spanning several months. In one instance, Brewer knowingly falsified a policy loan agreement so that a finance company would make a loan it would not otherwise have made. In another instance, Brewer obtained premiums from an insured, made only partial payments on the insurance policies, and when the policies were cancelled, falsely misrepresented to the insured that the cancelled coverage was replaced by another insurance company. One of the insured’s vehicles was involved in a collision for which he believed he had coverage. However, upon contacting the insurance company, the insured learned that Brewer had never submitted an application for coverage. In light of this evidence, we conclude that there was an adequate factual basis for the revocation of Brewer’s licenses. Further, since the agency’s findings and conclusions are supported by competent substantial evidence, we note that the penalty imposed in this case may not be reviewed by this court because it is within the permissible range of statutory law. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978).

Next, we consider Brewer’s argument that Sections 626.611 and 626.621, Florida Statutes, constitute an unlawful delegation of legislative authority contrary to the provisions of Article III, Section 1 of the Florida Constitution. These statutes provide the grounds for denial, suspension, revocation, or refusal to renew insurance licenses. Section 626.611, Florida Statutes states the compulsory grounds for such penalties and Section 626.621, Florida Statutes, states the discretionary grounds.

Section 626.611 provides, in part:

The department shall deny, suspend, revoke or refuse to renew or continue the license of any agent, solicitor, or adjuster, ... and it shall suspend or revoke the eligibility to hold a license or permit of any such persons if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist: ...

Section 626.621 states:

The department may, in its discretion, deny, suspend, revoke, or refuse to renew or continue'the license of any agent, solicitor, or adjuster, . .. and it may suspend or revoke the eligibility to hold a license or permit of any such persons if it finds that as to the applicant, licensee, or per-mittee any one or more of the following applicable grounds exist under circumstances for which such denial, suspension, revocation, or refusal is not mandatory under s. 626.611: ...

The statutes then list in detail the actions or omissions for which the Insurance Commissioner may or shall deny, refuse to renew, suspend or revoke an insurance agent’s license.

In most of the charges sustained against Brewer, the Insurance Commissioner found a violation of Section 626.561(1) which deals with an agent’s reporting and accounting for a client’s funds. In each instance in which violation of this statute was found, the insurance commissioner also found a violation of Section 626.621(2), Florida Statutes, which allows discretionary revocation of a license for violation of any provision of the Code. In the charges sustained against Brewer, he was also found to have violated one or more of subsections (5), (7), (9) or (10) of Section 626.611.

Brewer contends that Sections 626.611 and 626.621, do not provide any standard or guideline as to which acts or omissions would constitute grounds for revocation, or which would require only suspension or other penalty. He argues that they provide the Insurance Commissioner unlimited discretion in determining which violation shall merit revocation and which violation shall merit suspension, refusal to renew or denial of a license. Accordingly, he argues that the Insurance Commissioner has the unbridled discretion to “determine what the law shall be” and arbitrarily set penalties in a given case. It is his position that he has received the most extreme penalty available under the statutes, with no guidelines for establishment of appropriate penalty, under the circumstances of the case.

We recognize that the legislature may not delegate to an administrative official the power to say what the law is. However, the legislature may enact a law complete in itself, which leaves some discretion in the operation and enforcment of the law with an administrative official. Department of Citrus v. Griffin, 239 So.2d 577 (Fla.1970). The distinction is said to be one between “delegation of the power to make the law, which necessarily involves a discretion as to what the law shall be, and the conferring of authority or discretion in executing the law pursuant to and within the confines of the law itself.” Connor v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1966).

These statutes involve the field of licensing and the determination of personal fitness of applicants for or holders of a license. As such, the statutes fall within one of the long recognized exceptions to the strict requirement that express guidelines and standards be enunciated by the Legislature. Permenter v. Younan, 31 So.2d 387 (Fla.1947). The Supreme Court set forth this exception in North Broward Hospital District v. Mizell, 148 So.2d 1 (Footnote 11) (Fla.1962), as follows: “The general rule, which requires an express standard to guide the exercise of discretion is also subject to the exception that where it is impracticable to lay down a definite comprehensive rule, such as where regulation turns upon the question of personal fitness, or where the act relates to the administration of a police regulation and is necessary to protect the general welfare, morals, and safety of the public, it is not essential that a specific prescribed standard be expressly stated in the legislation. In such situations the courts will infer that the standard of reasonableness is to be applied.”

Sections 626.611 and 626.621 are part of a legislative scheme for determining whether applicants are qualified and remain qualified and fit to be insurance agents. This scheme is designed to aid the health, safety and welfare of the general public. Accordingly, we find that these statutes fall within the line of delegation cases enumerated above and that they are not constitutionally defective.

AFFIRMED.

ROBERT SMITH and WENTWORTH, JJ., concur.


text:
    Demous MANGRAM, Appellant, v. STATE of Florida, Appellee.
    No. TT-499.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1981.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Charles Stampelos and Carolyn M. Snurkowski, Asst. Attys. Gen., for appellee.
   PER CURIAM.

This is an appeal from the imposition of an enhanced sentence pursuant to Section 775.084, Florida Statutes (1979). Two errors were committed in the sentencing of appellant as a habitual felony offender under this statute.

In order to sentence a convicted felon as a habitual felony offender, the court must initially find that the criteria of Section 775.084(l)(a) 1-4 are satisfied. Secondly, the court must determine whether it is necessary for the protection of the public to sentence the offender to an extended term. In doing so, the court must make findings of fact which show on their face that an extended term is necessary for the protection of the public. Eutsey v. State, 383 So.2d 219 (Fla.1980); Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979). The findings need not appear in the written order, but instead may appear in the transcript of the sentencing proceedings. Id.

In the instant case, no findings of fact which show on their face that an extended term is necessary for the protection of the public appear either in the written order or in the transcript of the sentencing proceedings, therefore the enhanced sentence must be vacated and the case remanded for resentencing.

The court also improperly took judicial notice of a court file from the Fourth Judicial Circuit (Clay County) containing the record of a prior criminal conviction of appellant. Pursuant to the State’s notice of its request to take judicial notice, the court was under the impression that judicial notice of the entire file was mandated by Sections 90.202(6) and 90.203, Florida Statutes (1979), and did not require authentication of the file. The new evidence code applies to criminal proceedings related to crimes committed after the effective date of this code, July 1, 1979. § 90.103, Fla. Stat. (1979); In Re Florida Evidence Code, 376 So.2d 1161 (Fla.1979). The information charging appellant lists November 2, 1978, as the date of the crime for which appellant was convicted and to which these proceedings relate, thus the new evidence code was not applicable. For the reasons stated in Kostecos v. Johnson, 85 So.2d 594 (Fla.1956), before enactment of the new code judicial notice could not be taken of records in a case disposed of even in the same circuit. See also Glass v. Armstrong, 330 So.2d 57 (Fla. 1st DCA 1976). Instead such files had to be appropriately introduced in evidence. Kostecos, supra. Prior law required that to be admissible copies of records and judicial proceedings of any court in this state had to be authenticated by attestation of the officer having charge of the records of such court. § 92.10 Fla.Stat. (1975).

The error in taking judicial notice is significant because at the enhanced sentence proceedings the prosecutor read extensively from the transcript contained in the file. Because of the lack of findings of fact it is impossible to determine on review how great a role the improperly noticed material played in the court’s determination that the enhanced sentence was necessary for the protection of the public.

Accordingly, the enhanced sentence is vacated and the cause is remanded for proceedings in light of this opinion.

ERVIN, SHAW and WENTWORTH, JJ., concur.


text:
    Charles A. DAMYN, Appellant, v. Clayton STRICKLAND, Appellee.
    No. VV-33.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1981.
    Charles A. Damyn, pro per.
    Jim Smith, Atty. Gen., Martin S. Friedman, and Bruce D. Barkett, Asst. Attys. Gen., for appellee.
   PER CURIAM.

This is an appeal from an order denying default judgment in a replevin action. The record reflects that appellant, plaintiff below, is permitted, as an inmate at Florida State Prison, to receive a special Christmas package containing certain perishable foods once yearly. On December 22, 1979, appellant received a Christmas card from his nephew inquiring as to whether appellant enjoyed the candies that were enclosed within his Christmas package. Appellant, having never received a Christmas package, immediately requested inmate counsellor DeSue to make an effort to locate appellant’s package. DeSue contacted the property room officer and inquired as to whether any package to Mr. Damyn had been received. The property room officer assured DeSue that appellant’s Christmas package had not yet arrived at the Florida State Prison. DeSue relayed this information to appellant. Appellant then requested his family to place a tracer on the package.

On January 7, 1980, the property room officer told appellant that some Christmas packages were being stored in the Administration Building awaiting Superintendent Strickland’s authorization prior to delivery. Appellant then sent a letter to Mr. Strickland requesting his assistance in determining whether or not appellant’s Christmas package was among those packages being held in the Administration Building. Appellant received no response to this letter. Sometime thereafter appellant received a copy of the United Parcel Service Shipper Tracer form. That form indicated that one package weighing eleven pounds, containing cookies and candies valued at $20.00, was delivered to P. O. Box 747, Starke, Florida (the address of Florida State Prison) on December 21, 1979. The UPS delivery record showed that J. Richardson signed as having received the package. On January 18,1980, appellant wrote a second letter to Superintendent Strickland in an attempt to obtain his Christmas package. Again, no response was received.

On January 31, 1980, appellant filed a formal complaint in County Court to recover his Christmas package. Oil February 6, 1980, the court issued an order to the appel-lee, defendant below, to show cause at a hearing on February 19, 1980, why the property described in the complaint should not be delivered to the appellant. On February 19, 1980, the appellee did not appear at the hearing either personally or by counsel. Appellant orally moved the court for a judgment of default. The court denied said motion and reviewed appellant’s evidence. Appellant entered into evidence the UPS Shipper Tracer containing the signature of the state employee who received the Christmas package. Appellant also introduced into evidence the two letters appellant had written to appellee in his attempt to obtain his Christmas package. On February 28, 1980, the court ordered the writ of replevin should not issue.

On March 6, 1980, appellant filed a motion for default judgment or in the alternative a motion for appointment of counsel. That motion was denied on March 12, 1980. This appeal followed.

The notice of appeal was timely filed in the Circuit Court. It adequately identified the order to be reviewed. However, the notice inappropriately designated the First District Court of Appeal as the reviewing court. This court does not have jurisdiction to review a final order directly reviewable by a Circuit Court. Fla.R.App.P. 9.030(b)(1)(A). Therefore, pursuant to Rule 9.040(b), Florida Rules of Appellate Procedure, we transfer this cause to the Circuit Court, Eighth Judicial Circuit for appellate review.

We regret that this proceeding, already nine months on appeal, will be further delayed by the transfer of this cause to Circuit Court. However, we are confident that an expeditious resolution will be forthcoming.

ERVIN, SHAW and WENTWORTH, JJ., concur.


author: PER CURIAM. WENTWORTH, Judge,

text:
    Willie WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. XX-2.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1981.
    Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of his conviction of aggravated battery, alleging error upon the court’s denial for his request for a jury instruction on simple battery. We find that appellant has failed to preserve the issue for appeal.

Although the record reflects that the trial judge fully understood the purpose for the appellant’s requested instruction on battery, no formal objection was made to the court’s refusal to give the denied instruction. Appellant argues that it is redundant under such circumstances to require a formal objection in order to preserve what otherwise would be reversible error. This argument might be well-taken except for the fact that Fla.R.Crim.P. 3.390(d), in no uncertain terms, requires such an objection to preserve the issue for appeal. Kelly v. State, 389 So.2d 250 (2d DCA 1980); White v. State, 324 So.2d 115 (Fla.3d DCA 1976).

Appellant having failed to preserve the issue, the judgment appealed is affirmed.

ERVIN and SHAW, JJ., concur.

WENTWORTH, J., dissents with opinion.

WENTWORTH, Judge,

dissenting.

The requested instruction should have been given in this case, under the teachings of Brown v. State, 206 So.2d 377 (Fla.1968). Appellant clearly requested the instruction, and while no formal objection was made after the denial of the request, it was clear from the court’s pronouncements that such would be fruitless, and the court in fact recognized a notation of objection by inquiring: “Are there any exceptions or objections to the instructions as given, other than those already duly noted?” The record shows that the court was aware that appellant’s request was based on the contention that battery is a lesser included offense as defined in Brown, supra, which clearly complies with the Supreme Court’s requirement of an objection sufficient to “apprise the trial judge of the putative error.” Castor v. State, 365 So.2d 701, at 703 (Fla.1978). I would not require a useless gesture and, in the circumstances of this case, would rule that the error has been preserved for appeal in accordance with the general language of Fla.R.Crim.P. 3.390(d) and (e), stating “the giving or the failure to give an instruction” may not be grounds of appeal unless the party “objects thereto . .. stating distinctly ... the grounds,” but “no exception need be made to the court’s ruling thereon.” See Brown v. State, supra; Wilson v. State, 344 So.2d 1315 (Fla.2d DCA 1977).


author: BASKIN, Judge.

text:
    Oscar L. WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1165.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1981.

      Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto and Paul Mendelson, Asst. Attys. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Defendant Oscar Williams appeals an order revoking and modifying his probation, challenging the length of the sentence imposed by the trial court. He contends the court exceeded legal sentencing limits when it imposed, for violations of probation, terms of imprisonment which were longer than the prison sentence originally imposed in a split sentence. We disagree and affirm on that issue. Defendant also claims the state failed to prove he had the ability to pay restitution and costs of probation supervision. The state has conceded error and we reverse on these points. Defendant contends, in addition, that the state failed to prove, other than by hearsay, that he had changed his address without obtaining the consent of his probation officer. We find no error on this ground.

The charges upon which defendant was originally convicted, following his plea of guilty, included uttering a forged instrument, grand larceny, and forgery. The court sentenced defendant Williams to serve five years in the state penitentiary, provided that after eleven months had been served, four years and one month would be stayed and withheld and the defendant placed on probation for a period of four years and one month. As a condition of his probation, defendant Williams was required to pay $181 restitution to the victim. A separate order placing defendant on probation during a portion of his sentence contained the language “[I]f you violate any of the conditions of your probation, you may be arrested and the Court may revoke your probation and require you to serve the balance of said sentence.” Defendant contends this language limited the court upon violation of probation to a term of imprisonment no greater than the unserved balance of the original five-year sentence.

At the time defendant was charged with violating his probation, he had served the eleven-month prison sentence and was serving the probationary portion of his split sentence. The affidavit charged that he had violated his probation by changing his residence without obtaining the consent of his probation supervisor, had failed to make certain monthly reports, had committed a robbery, had failed to pay remaining restitution of $22.60, and had failed to pay costs of supervision. Upon his conviction for violating his probation, defendant was sentenced: Count I-five years prison, Count II-five years prison concurrent with Count I, Count Ill-five years prison consecutive to Counts I and II, with credit for time already served. Defendant concedes the absence of error concerning the charges relating to robbery and failure to make reports.

Defendant Williams argues that State v. Jones, 327 So.2d 18 (Fla.1976), which permits a court to impose upon probation violation any sentence which might originally have been imposed, does not apply to a split sentence entered under Section 948.01(4), Florida Statutes (Supp.1974). He contends that once a prison sentence has been imposed and a portion stayed with defendant being placed on probation for the remainder of the sentence, upon revocation of probation a defendant ipay be required to serve no more than the remaining portion of the prison sentence. Under that argument, the trial judge would have been limited to imposing five years prison with credit for time served instead of the effective total of ten years with credit for time served he actually imposed. Defendant’s position lacks merit. The question certified in State v. Jones, supra, presents the same issue addressed by defendant Williams. The Jones decision expressly resolves the issue contrary to defendant Williams’ contention. State v. Holmes, 360 So.2d 380 (Fla.1978); State v. Jones, supra.

Defendant also argues that the sentence he received contravenes the express provisions of the probation order and conflicts with his understanding of the plea agreement as it appears in the original probation order. This argument has been decided adversely to his position. State v. Segarra, 388 So.2d 1017 (Fla.1980). Defendant further argues that Flowers v. State, 351 So.2d 387 (Fla. 1st DCA 1977) requires that he be afforded protection from double jeopardy denied him by the trial court’s sentences. We do not find Flowers to be applicable to the facts of this case. Flowers involved a second sentencing for the same offense; here we are concerned with a subsequent offense, that of probation violation, and double jeopardy does not apply. “The events which bring about a revocation open a new chapter in which the court ought to be able to mete out any punishment within the limit prescribed for the crime.” Johnson v. State, 378 So.2d 335, 336 (Fla. 2d DCA 1980), cited with approval in State v. Segarra, supra. We note that defendant’s resentencing was the result of his actions in violating his probation and we decline to restrain the court in its imposition of sentence while permitting defendant Williams to remain unfettered.

The state has conceded that the evidence was insufficient to prove defendant was able to pay restitution and costs of supervision. Accordingly, we remand the cause with directions that the trial court correct its order to delete these grounds as violations of defendant’s probation. Byrd v. State, 390 So.2d 145 (Fla. 3d DCA 1980); Peterson v. State, 384 So.2d 965 (Fla. 1st DCA 1980); Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978).

Although the general sentence originally imposed was clearly in error, Carroll v. State, 361 So.2d 144 (Fla.1978); Estraviz v. State, 366 So.2d 803 (Fla. 3d DCA 1979), no challenge by appeal was brought. That defect has been waived; the separate sentences now under consideration appropriately pertain to individual charges.

For the foregoing reasons, we affirm in part the decision of the trial court, but reverse in part and remand the cause with directions to the trial court to correct its order by deleting the portions indicated.

Affirmed in part and reversed in part.


author: HENDRY, Judge.

text:
    The STATE of Florida, Appellant, v. Guy Emery MOSIER, Appellee.
    No. 79-1644.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1981.

      Janet Reno, State Atty. and Ira N. Lo-ewy, Asst. State Atty., for appellant.
    Roy E. Black and Frank C. Furci, Miami, for appellee.

      Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

The state appeals a trial court suppression order regarding a quantity of cocaine discovered in the course of an airport narcotics investigation. We remand for further evidentiary hearing.

While proceeding to his departure gate, Guy Mosier was approached by police plainclothes detectives Facchiano and McGee, of the airport narcotics detail. Mosier produced the requested personal identification, and allowed them to examine his flight ticket and baggage claim check (which were returned shortly thereafter). However, he refused their request for permission to search a suitcase checked earlier at the Continental ticket counter. Thereupon, the three parted ways: Mosier to his plane, Facchiano to the Continental baggage loading area to locate the suitcase in question, and McGee to a telephone, by which he solicited the aid of Agent DiDecker, and his dog, Dewey, of the United States Customs Service.

Once in the loading area, Facchiano removed Mosier’s suitcase from the cart upon which it had been placed in the routine of Continental’s loading procedure, and arranged it and several other bags in a row, on the ground, for Dewey’s discerning perusal. At that juncture, Mosier waited for the plane to take off, and the two detectives waited for Dewey (and Agent DiDecker).

Dewey arrived in the nick of time, “alerting” on Mosier’s suitcase (thereby indicating the presence of drugs) at 9:55 A.M.— precisely the minute of Mosier’s scheduled departure. Leaving Agent DiDecker (and Dewey) to guard the suitcase, Facchiano and McGee boarded Mosier’s plane, and effected his arrest. The suitcase was subsequently opened under authority of a validly issued search warrant, and two kilos of cocaine were seized.

At the conclusion of the suppression hearing, the trial court held that the initial verbal encounter between Mosier and the detectives constituted a Terry “stop,” not based on an articulable suspicion satisfying Terry or the statutory requirement. The court held that the illegal stop tainted the validity of the warrant and search; additionally, it held that the trespass of Facchi-ano, McGee, DiDecker (and Dewey) into the Continental baggage area, without “evidence even remotely pointing towards the commission of a crime,” tainted the acquisition of evidence obtained thereafter. On those multiple grounds, the motion to suppress was granted.

We remand because the legality vel non of the concourse encounter is irrelevant to a determination of whether Mosier’s bag was validly seized, as is the issue of the detectives’ putative trespass into the baggage loading area.

Detective Facchiano testified that he distinguished Mosier’s bag from others on the baggage cart on the basis of its visual characteristics, initially perceived while Mosier and his bag were being surv-eilled in the concourse. Only by way of verification did Facchiano compare the claim check number on the bag with that earlier observed stapled to Mosier’s ticket. Given those facts, whether Mosier was previously “stopped” or not, legally or illegally, is of no consequence; the taint, if any, was purged through operation of the doctrine of independent source: Evidence legally discovered is admissible on the theory that it was discovered by independent legal means, rather than through exploitation of a prior illegality. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); United States v. Vicknair, 610 F.2d 372, 381 (5th Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 83, 66 L.Ed.2d 25 (1980); United States v. Pike, 523 F.2d 734 (5th Cir.), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1975).

We turn to the officer’s presence in the Continental baggage loading area, assuming it to be unprivileged, and its impact upon the admissibility of subsequently seized evidence: Mosier cannot claim a “reasonable expectation of privacy” in those premises, and thus, he cannot be said to have suffered a Fourth Amendment intrusion by the detectives’ entry into the area. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

Certainly, a reasonable expectation of privacy existed as to the contents of the suitcase, United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1972), but it is clear that a dog sniff is not a Fourth Amendment “search.” United States v. Solis, 536 F.2d 880 (9th Cir. 1976); United States v. Bronstein, 521 F.2d 459 (2nd Cir. 1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976); United States v. Fulero, 162 U.S.App.D.C. 206, 498 F.2d 748 (D.C.Cir.1974); State v. Goodley, 381 So.2d 1180 (Fla. 3d DCA 1980); Mata v. State, 380 So.2d 1157 (Fla. 3d DCA 1980). Moreover, movement of the suitcase from the baggage cart to the floor, to facilitate the sniff, was a de minimis intrusion certainly not amounting to a seizure. Goodley, Mata, supra.

However, we cannot say with finality, on the record before us, whether Mosier’s suitcase was seized without probable cause. We noted initially that Dewey’s “alert” on the suitcase conferred probable cause for seizure of the bag at the precise minute of its scheduled departure. If the bag was delayed for any reason other than state action, the detectives (and the state) were the beneficiaries of fortune. If, however, in the absence of state action the bag would have become inaccessible to Dewey for the purpose of his sniff, then it was unlawfully seized. Since the state concedes, as it must, that Facchiano and McGee acted without probable cause of criminal activity until Dewey provided it, such prior seizure would inevitably taint the evidence thereafter obtained.

We vacate the order appealed and remand for an evidentiary determination of whether or not the suitcase was effectively detained because of state action pertaining to the officer’s investigation. If so, then the motion to suppress should be granted; if the suitcase was not seized prior to Dewey’s sniff, then the motion should be denied.

It is so ordered.

      . Fla.R.App.P. 9.140(c)(1)(B).

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

        . See § 901.151, Fla.Stat. (1979).

      . We pause long enough to note, and dismiss, Mosier’s claim that his bag was sought out only because he stood on his right not to consent to a search, i. e. that the officers suspected him on the supposition that innocent people do not object to luggage searches. It is clear that the officers suspected him before their approach— indeed, that was why they approached him— and their request for consent to search was merely an attempt to obviate the necessity of summoning Agent DiDecker and Dewey. When their request was refused, they fell back upon their less preferable alternative: They called for the dog. We find the''- action totally appropriate in that regard.


text:
    B.T.E., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-699.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1981.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Amato v. State, 296 So.2d 609 (Fla.3d DCA 1974).


author: DANIEL S. PEARSON, Judge.

text:
    Jean Morgan FOSS, Appellant, v. George Bridges FOSS, Jr., Appellee.
    No. 80-747.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1981.
    Highsmith & Strauss and Philip Glatzer, Miami, for appellant.
    Henry R. Carr, George B. Foss, Jr., Miami, for appellee.
    Before NESBITT, BASKIN and PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

This marriage began in 1956 and, in a bifurcated proceeding, was dissolved in 1978 with financial and other matters being resolved in 1980. By then, Jean Foss was 47 years old, having borne four children, two of whom were still minors, aged 12 and 15, living with her at home. One of these children suffered from a learning disability; another was emotionally unstable. Mrs. Foss’ health was good.

Before the marriage, Jean Foss had earned a degree in speech therapy. During the first year and a half of the marriage, Mrs. Foss was employed full time as a speech therapist; during the ensuing five and a half years, part time. She spent the next fifteen years devoting her full energies to being mother and housewife. The trial court found Mrs. Foss unable to support herself and awarded her rehabilitative alimony for five years.

Mrs. Foss was awarded custody of the minor children and exclusive possession of the marital home until the youngest child reached majority. Subsequently, the trial court ordered her (a) to make her residence available to Mr. Foss for purposes of exercising visitation privileges with any of the children who preferred not to visit with him in his home, and (b) not to remove the children from the jurisdiction of the court without permission of the court or Mr. Foss.

On this appeal, Mrs. Foss contends that she was entitled to permanent, not rehabilitative, alimony; and that the orders requiring her to make her home available to her husband for visitation and preventing her from leaving the state constituted an abuse of the trial court’s discretion.

For the reasons fully discussed in Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980), we hold that Mrs. Foss was entitled to permanent alimony. And see Garrison v. Garrison, 380 So.2d 473 (Fla. 4th DCA 1980); Kvittem v. Kvittem, 365 So.2d 791 (Fla. 4th DCA 1979); Thomas v. Thomas, 364 So.2d 78 (Fla. 2d DCA 1978); Bowen v. Bowen, 347 So.2d 675 (Fla. 3d DCA 1977).

We also agree with Mrs. Foss that the trial court erred in ordering that she make her home available to her husband in order that he may visit there with the children. The final judgment provided:

“The exclusive occupancy and possession of the marital domicile is awarded to [the wife] until the youngest child shall attain the age of majority or [the wife] shall remarry or [the wife] shall voluntarily move from said domicile, whichever shall first occur.”

The trial court’s supplementary order concerning visitation provided in pertinent part:

“If any child or the children prefer not to visit [the father] in his domicile overnight, then [the father] shall be afforded equal time for visitation with said child or children in the marital domicile, without the interference of [the mother].” (emphasis supplied).

Whether, as Mrs. Foss contends, this order goes as far as permitting Mr. Foss to stay overnight in her home, or merely gives to Mr. Foss additional visitation hours which may be exercised in her home is immaterial. Moreover, we need not decide whether other circumstances not present here (e. g., the extreme youth or ill health of the child) might justify, in order to effectuate the right of visitation, the partial surrender of privacy rights which attend an individual’s possessory interest in a home. We decide only that the possible “preference” of children, aged 12 and 15, not to visit with their father overnight in his domicile is insufficient justification for an order allowing the father to visit with them in the mother’s domicile.

Fundamental to the ownership of a residence and, indistinguishably, the exclusive right to reside in a home, is that the owner or occupant has a right of privacy, which includes the right to be free from unreasonable restrictions on the use of the residence. Cf. Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (holding unconstitutional a city zoning ordinance which prohibited the occupancy of a dwelling by other than members of a single nuclear family). Where the restriction is reasonably related to a lawful objective, the privacy right may, under some circumstances, be forced to give way. See. White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1980). Even if, arguendo, one’s visitation rights are as paramount as another’s right to privacy, where, as here, the record does not reflect that visitation can only be effectuated by intruding on Mrs. Foss’ privacy in the residence she occupies, no sufficient justification exists for the trial court’s order allowing visitation in Mrs. Foss’ home. Compare Kranis v. Kranis, 313 So.2d 135 (Fla. 3d DCA 1975).

There are some matters that are not for courts to resolve. If, indeed, children aged 12 and 15 are reluctant to stay in the father’s domicile overnight, the solution may have to lie- with the father and children coming to understandings calculated to diminish this reluctance. That the father may be deprived, hopefully temporarily, of overnight visits with his children in his own home does not mean that he is deprived of visitation or that a court should step in and deprive the mother of the privacy of her own residence. See generally Rehnquist, The Adversary Society: Keynote Address of the Third Annual Baron de Hirsh Meyer Lecture Series, 33 U.Miami L.Rev. 1 (1978).

Lastly, we turn to that part of the court’s supplementary order, which provides:

“Neither party shall remove any child or children from the jurisdiction of this Court without either an Order authorizing same or the prior agreement (in writing if there be any dispute) of the other party.”

Generally, courts are empowered to restrict the movement of children of divorced parties. Scheiner v. Scheiner, 336 So.2d 406 (Fla. 3d DCA 1976). The predicate for the exercise of this power is a showing that the movement of the child may interfere with the visitation rights accorded to the other party. In re E.P., 186 So.2d 801 (Fla. 3d DCA 1966). Mrs. Foss does not contend that the rule is otherwise. She says, however, that the scope of the court’s order is too broad — it would prevent her from taking any excursion outside of Dade County or a temporary journey out of the state with a child or children unless she had her husband’s permission or procured a court order. There is simply no showing in the record before us that such a removal of the children constitutes any threat to the visitation rights of Mr. Foss.

Accordingly, we reverse that part of the final judgment which orders the husband to pay the wife the sum of $1,000 per month as rehabilitative alimony and that part of the supplementary order that prevents the parties from removing the children from the jurisdiction of the court, and remand the cause to the trial court with directions that the award of rehabilitative alimony be made permanent alimony, and that the restrictions on travel be modified by the trial court so as not to require permission for temporary removal of the children in the absence of some showing that such a removal would interfere with the visitation rights of the parties. We reverse and vacate that part of the supplementary order which provides that the husband may exercise visitation privileges in the home, the former marital domicile, now exclusively occupied by the wife. In all other respects, the judgment and supplementary order are affirmed.

Reversed in part; affirmed in part.


text:
    Franklin POLITE, Appellant, v. Robert HEDSTROM and Trudi Hedstrom, Appellees.
    No. 80-908.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1981.

      Walsh, Theissen & Boyd and Mark R. Boyd, Fort Lauderdale, for appellant.
    Colodny & Fass, North Miami, for appel-lees.
    Before HUBBART, C. J., and SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellant has failed to establish that the trial court abused its discretion in granting a new trial on the ground that the jury verdict was contrary to the manifest weight of the evidence. Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Rivera v. White, 386 So.2d 1233 (Fla. 3d DCA 1980); see, Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla.1975). The order under review is therefore

Affirmed.


text:
    William Edward VAN POYCK, a/k/a William Edward F. Van Poyck, Appellant, v. The STATE of Florida, Appellee.
    No. 81-57.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1981.
    William Edward Van Poyck, in pro. per. Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed. Gonzalez v. State, 367 So.2d 1008, 1011 (Fla.1979).

Affirmed.