author: BERANEK, Judge.

text:
    STATE of Florida, Appellant, v. Susan CARNEY, Appellee.
    No. 80-1381.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    Michael D. Gelety, Port Lauderdale, for appellee.
   BERANEK, Judge.

The state appeals the grant of a defendant’s motion to suppress evidence obtained through use of a previously court authorized telephone wiretap. We find error and reverse.

Defendant was charged with three counts of making false statements under oath before a grand jury. While testifying before the grand jury defendant stated she never had telephone conversations with one Dennis Hogan about the price and acquisition of quantities of marijuana, cocaine and quaa-ludes. By information, the state asserted these statements were knowingly false. Defendant moved to suppress evidence of her recorded telephone conversations with Dennis Hogan which had been acquired under a wiretap. issued pursuant to Section 934.09, Florida Statutes (1979). The trial court granted the motion to suppress and the state appeals.

Section 934.09, Florida Statutes (1979), provides numerous safeguards protecting citizens from unwarranted wiretaps. The sole basis for the motion to suppress as adopted by the trial court in its order granting same related to Section 934.09(l)(c) which provides in relevant part as follows:

(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall ... include the following information:
(c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.

Under the procedures required by Section 934.09, Florida Statutes (1979), the state made an application to a circuit judge for authorization to place a tap on Dennis Hogan’s phone. The affidavit was nineteen pages long and, we conclude, fulfilled all the necessary statutory requirements. The affidavit outlined abundant evidence of criminal activity on the part of Dennis Hogan as to his activities in the acquisition and resale of controlled substances. Appel-lee urges that the affidavit demonstrated overwhelming probable cause in regard to Mr. Hogan and that, therefore, there was no necessity for the additional investigatory step of a wiretap. It is certainly true that the state possessed sufficient probable cause to arrest Mr. Hogan on certain drug charges. However, Mr. Hogan was not at this point the sole focus of the state’s investigation. Instead, the state was desirous of investigating the scope of the drug operation and the co-conspirators involved with Mr. Hogan in this operation. The affidavit clearly indicated numerous telephone transactions and other normal investigatory steps had been unsuccessful in disclosing the identity of the co-conspirators. The case of United States v. Armocida, 515 F.2d 29 (3d Cir. 1975), is closely in point. This decision construed the federal counterpart of the Florida wiretap statute. Dealing with a contention similar to that advanced by appellee herein, the Third Circuit Court of Appeals stated as follows:

When the wiretap application was made, the government’s objective was to ascertain the scope of the alleged narcotics conspiracy and to identify the participants. As recited in Greene’s affidavit, the normal investigative techniques utilized were ineffective other than in identifying Gazal as the “street-level” distributor. Affidavit of James P. Greene, supra note 6, at 12. Although the government has actual knowledge of a conspiracy and evidence sufficient to prosecute one of the conspirators, it is unrealistic to require the termination of an investigation before the entire scope of the narcotics distribution network is uncovered and the identity of its participants learned. See United States v. Focarile, 340 F.Supp. 1033, 1042-44 (D.Md.), aff’d sub nom., United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), rev’d on other grounds, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). We have held that the statutory burden on the government is not great in showing compliance with § 2518(3)(c). Accord United States v. Bobo, 477 F.2d 974, 982-83 (4th Cir. 1973); United States v. Lanza, 356 F.Supp. 27, 30 (M.D.Fla. 1973). As stated, the government need not prove to a certainty that normal investigative techniques will not succeed, but rather need only show that such techniques “reasonably appear to be unlikely to succeed if tried.” Cf. Beck v. Ohio, supra. By this standard, Greene’s affidavit is clearly sufficient to support the finding made by the court. 515 F.2d at 38.

We agree with the view enunciated above. Where the scope of an apparent conspiracy and the identity of the co-conspirators requires it, a wiretap may be authorized when other normal investigatory procedures have failed or appear unlikely to succeed or are otherwise ill advised. One co-conspirator may not preclude the use of evidence acquired through a tap by merely pointing to abundant probable cause already in possession óf the government to arrest others. We therefore conclude that the motion to suppress filed pursuant to Section 934.09(9)(a) was erroneously granted and the order in question is vacated and the matter remanded to the trial court for further proceedings.

ANSTEAD and HURLEY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Catherine Ann PRICHARD, Appellant, v. STATE of Florida, Appellee.
    No. 80-1403.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals her judgment and sentence for aggravated battery and theft. We are compelled to reverse based upon Tascano v. State, 393 So.2d 540 (Fla.1980), and Murray v. State, 403 So.2d 417 (Fla.1981). The matter is remanded to the trial court for a new trial in accordance with the aforecited authorities.

REVERSED AND REMANDED.

LETTS, C. J., BERANEK, J., and OWEN, WILLIAM C., JR., (Retired), Associate Judge, concur.


author: GREEN, OLIVER L., Jr., Associate Judge. OWEN, WILLIAM C., Jr., Associate Judge,

text:
    Harlin Wayne MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 80-1613.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.
    Rehearing Denied March 10, 1982.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   GREEN, OLIVER L., Jr., Associate Judge.

This is an appeal from a conviction of first degree burglary, first degree arson, robbery, attempted second degree murder, and grand theft. While defendant has raised several points on appeal, the only one with merit concerns the sufficiency of the evidence to support the conviction of first degree burglary.

Basically, the facts of this case are that the defendant burglarized a commercial structure. After gaining entry, he started a fire and then observed the victim, John Hansen. The defendant walked behind Hansen and struck him over the head with a pipe. John Hansen, rendered unconscious by the blow, was never aware of defendant’s presence. Defendant searched through the unconscious victim’s pockets and, finding nothing, was in the process of leaving the premises when he observed and stole a vehicle which belonged to an employee, Anna Stamalis, but which was in the care, custody or control of Hansen.

The information charged burglaiy in the course of which defendant made an assault upon John Hansen. To sustain this charge of first degree burglary, there must be proof of an assault. Section 810.02 Florida Statutes (1979). Section 784.011 Florida Statutes (1979), defines an assault as:

An intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

Since the evidence in the present case is insufficient to show that the victim had a well founded fear of imminent violence, an essential element of criminal assault has not been proven. See Barrington v. State, 338 So.2d 85 (Fla. 1st DCA 1976); State v. Pinder, 375 So.2d 836 (Fla.1979).

The only other point which requires discussion is whether the defendant can be convicted and sentenced for both the crime of robbery and attempted second degree murder. It is implicit in our holding that robbery may be committed by methods other than by an assault, or putting in fear. F.S. 812.13(1). The crime of robbery and the crime of attempted second degree murder may involve a single act of force or violence, as in this case. Even so, there are several other elements which are not similar. We conclude that the defendant was properly convicted and sentenced for the crimes of robbery and attempted second degree murder. State v. Hegstrom, 401 So.2d 1343 (Fla.1981); Faison v. State, 399 So.2d 19 (Fla. 3d DCA 1981); Slater v. State, 316 So.2d 539 (Fla.1975); and Section 775.021(4), Florida Statutes (1979).

The judgment and sentence of burglary in the first degree is reversed. Since the evidence at trial established that the defendant was guilty of burglary of a structure in which there was a human being at the time defendant entered, a lesser offense necessarily included in the charge upon which the defendant went to trial, we remand this cause to the trial court with directions to enter a judgment and sentence for burglary of the second degree. See Lopez v. State, 345 So.2d 757 (Fla. 4th DCA 1977).

The judgments and sentences are severally affirmed in all other respects.

AFFIRMED IN PART; REVERSED IN PART; and remanded with directions.

BERANEK, J., concurs.

OWEN, WILLIAM C„ Jr., (Retired) Associate Judge, concurs specially with opinion.

OWEN, WILLIAM C., Jr., Associate Judge,

concurring specially:

I concur in the court’s decision, and in the opinion authored by Judge Green, but would add these thoughts. This case quite vividly point up the reason why assault, as a criminal offense, should not include the element of putting in fear, a subject upon which this author wrote in Clark v. State, 318 So.2d 487 (Fla. 4th DCA 1975), reversed 337 So.2d 798 (Fla.1976). I again express the hope, as I did then, that the Legislature would revise Section 784.011, Florida Statutes, so as to eliminate the element of the putting in fear, a proper element of the civil tort of assault. Failing in this, the Legislature should amend Section 810.-02(2)(a), Florida Statutes, to read “makes an assault or battery upon any person,” thereby making the statute say what the learned trial judge felt the Legislature meant to say.


text:
    John William PRYGROCKI, Appellant, v. INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 80-1849.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.
    Larry Bohannon, J. Patrick Floyd and Robert N. Berube of Chidnese & Bohannon, Fort Lauderdale, for appellant.
    Marcia E. Levine of Fazio, Dawson, Steinberg & DiSalvo, Fort Lauderdale, for appellee.
   OWEN, WILLIAM C., Jr., Associate Judge (Retired).

The issue here is whether an insured under the personal injury protection coverage of an automobile liability insurance policy, other than the named insured or a relative of the named insured, is within the classification of those entitled to recover attorneys fees under Section 627.428(1) Florida Statutes. We answer in the affirmative, and reverse the judgment denying attorneys fees to appellant.

Appellant, while a pedestrian, sustained bodily injury caused by an accident arising out of the use of a motor vehicle insured under the personal injury protection coverage of a policy issued by appellee, Industrial Fire and Casualty Insurance Company. The insurer denied coverage to appellant, who then brought this action. Later, the insurer recognized that it had wrongfully denied coverage, whereupon it paid its policy limits to appellant. However, the insurer declined to pay appellant’s claim for attorneys fees and prevailed upon the trial court to enter an order striking the claim for attorneys fees on the grounds that such were not authorized under Section 627.-428(1), Florida Statutes. In doing so the trial court relied upon Fernandez v. Alonso, 375 So.2d 8 (Fla.3d DCA 1979) and Roberts v. Carter, 350 So.2d 78 (Fla.1977).

Paraphrasing the language of the policy, it obligated the insurer to pay, in accordance with the Florida Automobile Reparations Reform Act, as amended, to any person while a pedestrian, through being struck by the insured motor vehicle, certain damages incurred as a result of bodily injury caused by accident arising out of the use of the motor vehicle. Appellant fit squarely within that classification (a fact belatedly recognized by the insurer) and, thus, clearly was an omnibus insured. As “an insured,” appellant fell squarely within the unambiguous language of Section 627.-428(1), Florida Statutes. ,

Because we can see no meaningful distinction between the facts in this case (an omnibus insured) and those stated in the Fernandez case, supra, (omnibus insureds) we believe, in all deference, that our sister court has misconstrued or misapplied the law as stated in Roberts v. Carter, supra. Indeed, the Fernandez court even cited to its own decision in United States Fidelity and Guarantee Company v. State Farm Mutual Automobile Insurance Company, 369 So.2d 410 (Fla.3d DCA 1979) which had interpreted the Supreme Court’s coined phrase “contracting insured” in the following language, at 412:

It seems obvious to us that, in the context in which the statement was made, the term “contracting insured” refers to all claimants who have a direct first party contractual relationship with the carrier and are thus insured under the policy itself, as opposed to the third party tort claimants actually involved both in Wilder [v. Wright, 278 So.2d 1 (Fla.) ] which was specifically reaffirmed in Roberts, and in Roberts itself. This conclusion is based predominately upon the fact that the very statute interpreted in Roberts, Section 627.428(1), provides for fees to be awarded whenever a judgment is rendered, not for “the” or “the contracting” insured, but “... in favor of an insured or the named beneficiary under a policy ...” [e.s.]. In this sense, the word “an” means “any.” (Citations and footnotes omitted).
* * * * * *
Moreover, there is nothing in the Roberts language which would even faintly indicate that, merely by using the word “contracting,” the supreme court intended to overrule the countless Florida decisions which, applying the clear terms of the statute, have virtually as a matter of course awarded fees to omnibus and additional insureds such as [the insured in that case]. (Citations omitted).

In recognition of the fact that the Supreme Court’s use of the term “contracting insured” in its Roberts decision was not intended by that Court as either a revision of the clear statutory language or an overruling of the countless Florida decisions referred to in the foregoing quotation from the United States Fidelity and Guarantee Company case, this writer has recently suggested in another case that the Supreme Court intended the term “contracting insured” to mean “an insured” as defined in the particular contract of insurance.

We hold that appellant was within the category of an insured within the meaning of Section 627.428(1), Florida Statutes. This is the only issue before us in this case. Our decision appears to be in direct conflict with Fernandez v. Alonso, supra.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

ANSTEAD and BERANEK, JJ., concur.

      . Section 627.428(1), Florida Statutes, provides:
      Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

      . American and Foreign Insurance Company v. Avis Rent-A-Car System, Inc., 401 So.2d 855 (Fla. 1st DCA 1981) n.7.


text:
    Geoffrey S. STEINBERG, Appellant, v. Carol-Nada STEINBERG, Appellee.
    No. 80-2200.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.

      Philip M. Berman, Pompano Beach, for appellant.
    John C. Hilly, Lantana, for appellee.
   PER CURIAM.

This is an appeal by the former husband from the financial provisions of a final judgment of dissolution of marriage. We reverse.

The parties were married on July 4,1971. During the marriage, the husband engaged in several business ventures with moderate participation by the wife who spent most of her time as a homemaker and mother to the parties’ two children. Eventually, the husband become the owner/manager of two fast food businesses which, at the time of trial herein, were producing a combined net income of slightly over $30,000 per year. The business success of the parties can be traced to assistance provided by the wife’s father during the early period of the marriage.

The final judgment contained various financial provisions. First, the husband was required to pay child support of $130 per week, and to furnish the wife and children with health insurance. He was also required to pay $400 per month toward the rental of an apartment for the wife and children, and to pay the utilities and local telephone bills incurred by them. In addition, he was ordered to give the wife his interest in a 1978 Thunderbird automobile and to pay $50 per week rehabilitative alimony for a period of three years. The wife was also awarded a 50% interest in the businesses. Finally, the parties were ordered to sell certain real estate, which was the marital home, and to equally divide the proceeds, as well as the furniture and furnishings located in the marital home.

The award of a 50% interest in the businesses will afford the wife one-half of the business income and empower her to exercise equal managerial control. Thus, if the two businesses continue to produce the same income, the husband and wife will each receive approximately $15,000 annually. Due to the financial variables involved, it is not possible to compute the husband’s precise obligations under the judgment on a dollar basis. It is, however, apparent that the total award is more than the husband can reasonably be expected to bear on his share of the business income. There is no evidence that the parties have other income, and the child support award alone is almost half of the husband’s anticipated income. Moreover, since the total of the husband’s annual obligations for child support, rent, and alimony is in excess of his $15,000 anticipated income, it is clear that the award is not within the husband’s ability.

We deal here with two business properties of which the husband has been both the owner and the manager. The $30,000 annual income represents both a return on investment and the husband’s earnings from his management efforts. We conclude that the trial judge abused his discretion in accordance with Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We reverse all of the purely financial provisions of the final judgment and remand to the trial court for further consideration. The trial judge should fashion a final judgment making such awards as are within the reasonable abilities and needs of the respective parties. Although we reverse all of the financial provisions this opinion should not be construed as any indication that the wife is not entitled to substantial alimony or other awards of property. We conclude, however, that full reconsideration is necessary in view of the interrelationship of the various factors which must be considered by the trial court. As stated by this court in Bradley v. Bradley, 327 So.2d 253, 254 (Fla. 4th DCA 1976):

since other aspects of the final judgment may have been influenced by the lump sum alimony award, we remand the cause to permit the trial court to re-assess the matter and take further testimony if he deems it necessary to properly adjudicate the issues involved.

The matter is thus remanded for further proceedings which shall include a new final judgment and may be based upon further evidence.

REVERSED AND REMANDED.

BERANEK, J., OWEN, WILLIAM C., Jr., and GREEN, OLIVER L., Jr., Associate Judges, concur.


author: DOWNEY, Judge.

text:
    Thomas MILLS and Kennenth Schrimsher, Appellants, v. Ann DOYLE, Appellee.
    No. 81-252.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.

      Richard L. Oftedal, West Palm Beach, for appellant, School Bd. of Palm Beach County.
    Richard H. Frank and Mark F. Kelly of Law Offices of Frank, Chamblee & Kelly, P.A., Tampa, for intervenors/appellants.
    Florence Beth Snyder, West Palm Beach, for appellee.
    Jim Smith, Atty. Gen., and Frank A. Vickory, Asst. Atty. Gen., Tallahassee, for amicus curiae.
   DOWNEY, Judge.

The issues presented by this appeal involve the application of Chapter 119, Florida Statutes (1981), commonly known as the Public Records Act.

Appellee, Ann Doyle, a newspaper reporter for the Palm Beach Post, requested the appellants to allow her to inspect a grievance filed against the Palm Beach County school system by Warren G. Cutts, a county school teacher. When access to said record was refused counsel for Doyle made written demand upon the School Board to allow access to any written grievance filed by Cutts for the year 1980 and to “any material contained in the file relating to such grievance or grievances.” An attorney for the School Board responded that: a) the School Board’s contract with the Classroom Teachers Association (CTA) (the bargaining agent for the classroom teachers) mandated that such material be kept confidential; b) the CTA had threatened to file a grievance against the Board if Doyle’s request were complied with; and c) the CTA contended that Cutts had a constitutional right of privacy prohibiting exposure of the grievance filed by him. The Board’s counsel advised that until these issues could be resolved by the courts the Board felt compelled to refuse Doyle’s request. Thereupon, Doyle filed a petition for writ of mandamus in the circuit court to require appellants, the Superintendent of Public Instruction for Palm Beach County and the Palm Beach County School Personnel Manager, respectively, to comply with the mandate of Chapter 119, Florida Statutes. The alternative writ and rule to show cause issued returnable on January 29, 1981, at which time the circuit court also heard argument on appellants’ motion to quash or dismiss the petition and alternative writ. Appellants based their motion on the CTA— School Board collective bargaining agreement, Cutts’s constitutional right of privacy, and Cutts’s and the CTA’s purported status as indispensible parties. Although no evidence was adduced at said hearing, arguments of the parties and of Cutts and the CTA were heard. Doyle indicated no objection to intervention by Cutts and the CTA; however, the latter parties did not request leave to intervene.

The trial court entered a peremptory writ of mandamus commanding appellants to “open their records for inspection in accordance with Florida Chapter 119 ... and afford the Petitioner the opportunity to inspect the records pursuant to Florida Statutes.” The court also reserved jurisdiction to determine whether attorneys’ fees were assessable.

Appellants’ first contention on appeal is that the trial court erred in failing to dismiss the alternative writ for failure to join indispensible parties. We hold that this contention does not demonstrate reversible error because Cutts and the CTA, the alleged indispensible parties, were permitted to present their arguments to the trial court and were permitted to intervene in the appeal to this court.

Next, appellants argue that mandamus was an inappropriate remedy because disclosure of the records in question involved an exercise of appellants’ discretion. While this record indicates utter good faith on appellants’ part in denying access to the records in question, their legal conclusions were wrong. Disclosure of public records is not a discretionary act; it is a mandatory act.

Section 119.01, Florida Statutes (1981), declares the public policy of the state in unequivocal terms: “It is the policy of this state that all state, county, and municipal records shall at all times be open for a personal inspection by any person." “Public records” means:

“all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” Section 119.011(1), Florida Statutes (1981).

The Supreme Court expanded on that definition in Shevin v. Byron, Harless, Schaffer, etc., 379 So.2d 633, 640 (Fla.1980), wherein it described a public record in the Act as “any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type.” Section 119.-07(l)(a) directs that:

“Every person who has custody of public records shall permit the records to be inspected and examined by any person desiring to do so, at reasonable times, under reasonable conditions, and under the supervision by the custodian of records or his designee.”

The trial court properly found the grievance records of teachers employed by the Palm Beach County School Board were public records within the purview of the Act. In addition, the trial court was correct in shunting aside the argument that the collective bargaining contract between the CTA and the School Board established the confidentiality of the subject records, for to allow the elimination of public records from the mandate of Chapter 119 by private contract would sound the death knell of the Act. Thus, appellee’s request to examine the Cutts grievance did not trigger an exercise of discretion by appellants and mandamus was the appropriate vehicle to remedy the refusal of the records custodian to accede to that request.

Next, we address appellants’ contention that the trial court’s order requiring disclosure violates Cutts’s right of privacy guaranteed by the Federal Constitution and the newly adopted (November 4,1980) Article I, Section 23, of the Florida Constitution, thus rendering Florida’s Public Record Law, Chapter 119, unconstitutional as applied.

We learn from the Shevin case that the Supreme Court of the United States has construed the Federal Constitution to protect privacy interests in only three categories of cases:

“While there is no right of privacy explicitly enunciated by the Bill of Rights, the Supreme Court has construed the federal constitution to protect certain privacy interests. These protected interests can be said to comprise the federal constitutional right of privacy. This right of privacy cannot be characterized as a general right because its application has been strictly limited. It has been characterized as consisting of three protected interests: an individual’s interest in being secure from unwarranted governmental surveillance and intrusion into his private affairs; a person’s interest in decisional autonomy on personally intimate matters; and an individual’s interest in protecting against the disclosure of personal matters.” 379 So.2d at 636.

It is clear from the foregoing discussion of privacy interests that the first two categories are not relevant to a case such as we have here. Although the third category appears more nearly applicable, following the lead of the Shevin court (379 So.2d at 638), we, too, will be guided by the decision in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), since the United States Supreme Court has not located the parameters of this category of privacy interests. In Paul v. Davis, Davis sought damages and injunctive relief to prohibit city and county officials who had placed his name and picture on a police flyer of active shoplifters from distributing the flyer to merchants. The United States Supreme Court noted that Davis’s claim was based not on a challenge to the State’s ability to restrict his freedom of action in a private matter but rather on a claim that the State may not publicize a record of an official act such as an arrest'. The Shevin court noted that:

“The principles involved in Paul and in the present case are strikingly similar. Both involve the release of information concerning an official act of government that is allegedly damaging to the protestants. In Paul, the Court found no privacy interest to protect, and in the present case we reach the same conclusion. The Supreme Court may some day breathe life into the privacy interest asserted by respondents, but, until that occurs, we conclude that there does not exist, under the facts of this case, a constitutionally protected interest sufficient to prevent the public from seeing the consultant’s papers.” 379 So.2d at 638.

We echo the Florida Supreme Court’s position in Shevin as regards appellants’ claim of a right of privacy under the Federal Constitution.

The Shevin case also would support a holding that prior to the November 4, 1980, adoption of Article I, Section 23, the Right of Privacy provision of the Florida Constitution, our state constitution guaranteed no right of privacy. However, by its terms Article I, Section 23, does not limit the public right of access to public records: “This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.” Therefore, adoption of Article I, Section 23, has no adverse effect on Chapter 119, Florida Statutes.

Appellants’ final point on appeal suggests the trial court erred by providing in the peremptory writ relief broader than the relief set forth in the alternative writ. The general rule is that a peremptory writ of mandamus must conform to the alternative writ. Cipolloni v. Lewis, 375 So.2d 629 (Fla. 4th DCA 1979); 21 Fla.Jur., Mandamus § 124. The alternative writ issued herein directed the production of the grievance filed by Cutts, whereas the peremptory writ ordered appellants to “open their records for inspection in accordance with Florida Chapter 119 ... and afford [appel-lee] the opportunity to inspect the records pursuant to Florida Statutes.” The peremptory writ is undeniably broader than the alternative writ. However, our study of the record convinces us that counsel’s argument led the trial court to believe that if the court ruled against appellants’ various privacy and confidentiality arguments, the court’s mandate should require appellants to exhibit to appellee all relevant public records not exempt under Chapter 119. We interpret the peremptory writ to mean just that. Thus, if any controversy develops over alleged exempt documents the trial court is in a position to resolve those disputes in the enforcement of its own orders.

While we have dealt with the parties’ arguments on the foregoing point as though Florida Rule of Civil Procedure 1.660 were still in effect, we note that that rule was repealed effective January 1, 1981 (The Florida Bar, 391 So.2d 165, 177 (Fla.1980), and that mandamus proceedings in the circuit court are governed by Florida Rules of Appellate Procedure 9.030(c)(3) and 9.100.

For the foregoing reasons we affirm the judgment appealed from.

BERANEK and HURLEY, JJ., concur.


text:
    Barry GOLDBERG, Appellant, v. STATE of Florida, Appellee.
    No. 81-419.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.
    Robert M. Leen of Leen & Schneider, Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

During a consensual search of the defendant’s luggage, a police officer pulled “an oblong soft-shaped package” from a shirt pocket. At this point the defendant said, “Hey, that is my personal stuff,” and began to lunge or “kind of reach out” toward the officer holding the package. The officer stated that she could not see the contents of the package and candidly admitted that only a hunch suggested it might contain contraband.

Since the testimony regarding these events is without conflict and is susceptible of only one reasonable interpretation, i.e., that the defendant withdrew his consent to search before the police developed probable cause to believe that he possessed contraband, we hold that it was error to deny defendant’s motion to suppress. Accordingly, the conviction is reversed and the cause is remanded for further proceedings consistent with this opinion.

GLICKSTEIN and HURLEY, JJ., and GREEN, OLIVER L., Associate Judge, concur.


text:
    Roland NOYOLA, Appellant, v. STATE of Florida, Appellee.
    No. 80-1002.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1981.
    Ollie Ben Butler, Jr., Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the order of the trial court which withheld adjudication of guilt and placed appellant on concurrent terms of probation as an alternative to the imposition of sentences. See § 948.01(3), (4), Fla. Stat. (1979); Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980); In re Florida Rules of Criminal Procedure, 196 So.2d 124 at 171 (Fla.1967); Fla.R.Crim.P. 3.700, 3.790(a)(b).

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


text:
    Barbara TAYLOR, a/k/a Barbara Bannerman, a/k/a Betty Simpson, Appellant, v. STATE of Florida, Appellee.
    No. 81-504.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1981.
    Jerry Hill, Public Defender, Bartow, and Samuel R. Mandelbaum, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment and sentence of the trial court. However, an indigent person’s probation cannot be revoked for failure to pay supervisory fees unless there is a positive finding that the defendant was financially able to make such payments. Coxon v. State, 365 So.2d 1067 (Fla.2d DCA 1979).

We therefore strike that portion of the order regarding appellant’s violation of the condition which required supervisory fee payments. As amended, the judgment and sentence is affirmed.

HOBSON, A. C. J., and GRIMES and SCHOONOVER, JJ., concur.


author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. Alberta L. WARD, Appellee.
    No. 81-883.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Frank Louderback of Louderback & McCoun, St. Petersburg, for appellee.
   OTT, Judge.

The state challenges the suppression of evidence in this prosecution for bookmaking. We hold that the affidavit for the search warrant was sufficient without those allegations based upon impermissible electronic surveillance and therefore reverse.

Appellee was arrested and charged with bookmaking after execution of a search warrant on the premises of one Elmira Parker. Her motion to suppress alleged that the search and seizure were invalid because the affidavit for the warrant was based in part on the unreasonable interception of private communications between Elmira Parker and a confidential informant who was equipped with a body bug.

After a nonevidentiary hearing, the motion to suppress was granted pursuant to State v. Sarmiento, 397 So.2d 643 (Fla.1981), which held that electronic surveillance of conversations held in the home is unconstitutional. The trial court stated that since the judge who approved the warrant did not strike the allegations related to electronic surveillance, the illegal police activity “infects the whole thing.” Appellee was on the premises when the warrant was served. Having found the affidavit insufficient, the court suppressed all the evidence obtained under the resulting search warrant.

The trial court was mistaken in its conclusion that the entire affidavit was tainted by the illegally obtained information. The totality of the affidavit reveals ample factual allegations totally independent of the improper surveillance.

The affidavit recites a description of the premises to be searched, alleges that the confidential informant’s reliability was previously established by affiant, and alleges a “controlled buy,” as follows:

1. Affiant gave Cl money to place bets at the residence described in the affidavit.
2. After being searched, the Cl was under constant visual and electronic surveillance by affiant.
3. The Cl entered the residence and met with an individual unknown to the affiant who took his bets.
4. The Cl was in the home for approximately four minutes, during which time affiant heard him placing the bets.
5. The Cl was under constant electronic surveillance by affiant throughout the transaction until he left the residence and returned to affiant.
6. The Cl stated that a black female took more than five bets from him, wrote them down on a large notebook, and took the money to cover the bets.

Based on the above facts, in combination with his experience as a police officer working bookmaking, vice, and narcotics, affiant believed that a bookmaking operation was being conducted on the described premises. Affiant verified his belief by having the Cl go to the residence at least three times within 30 days and observe the bookmaking operation being conducted.

The duty of the trial court, under these circumstances, is to excise the invalid allegations and determine whether the remainder of the affidavit demonstrates probable cause. Antone v. State, 382 So.2d 1205 (Fla.1980). Despite the inclusion of illegally obtained evidence, the critical question is whether the independent and lawful information stated in the affidavit suffices to show probable cause. Neary v. State, 384 So.2d 881 (Fla.1980).

Statements made in an affidavit for the issuance of a search warrant which fall short of the constitutional standard may be treated as surplusage where the remainder of the allegations are sufficient of themselves to sustain the issuance of the warrant. Hicks v. State, 299 So.2d 44 (Fla.2d DCA 1974).

Upon close examination, it is evident that the tainted allegations of the affidavit are present in portions of those statements numbered two, four, and five. Yet, the affidavit contains a sufficiently definite description of the premises, and demonstrates a degree of informant reliability which cannot be seriously questioned. State v. Lasswell, 385 So.2d 668 (Fla.2d DCA 1980). The affidavit also establishes a proper “controlled purchase” of an illegal bet, which would be recognized by the courts of this state as demonstrating probable cause for a search warrant. State v. Gieseke, 328 So.2d 16 (Fla.1976); Law v. State, 292 So.2d 596 (Fla.2d DCA 1974).

In addition, the affidavit relates the facts demonstrating an on-going bookmaking operation and relates the experience of the affiant in bookmaking investigations. This corroborates additional portions of the informant’s report and lends believability to his reported observations of the notebook.

The totality of this affidavit furnishes more than adequate factual allegations to support a finding of probable cause and informant reliability without the surplusage concerning the electronic body bug worn by the CL Thus, the affidavit is quite sufficient to withstand a motion to suppress.

REVERSED and REMANDED for further proceedings consistent herewith.

CAMPBELL and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Elmira M. PARKER, Appellee.
    No. 81-882.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., Tampa, for appellant.
    Frank Louderback of Louderback & McCoun, St. Petersburg, for appellee.
   PER CURIAM.

This appeal is a companion case to State v. Ward, 407 So.2d 353, (Fla. 2d DCA 1981). We reverse and remand on the same grounds as stated in that opinion.

SCHEB, C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Thomas Preston BAXTER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1039.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1981.
   PER CURIAM.

Affirmed. Appellant seeks review of the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. We find his allegations of ineffective assistance of counsel insufficient to meet the test of Knight v. State, 394 So.2d 997 (Fla.1981). Appellant’s other points on appeal are without merit.

SCHEB, C. J., and DANAHY and SCHOONOVER, JJ., concur.


text:
    Clinton B. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 81-2004.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1981.
   PER CURIAM.

Appellant seeks reviewof an order of the Polk County Circuit Court which summarily denied his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

Issues which were or could have been raised on a direct appeal are not cognizable grounds for relief under Florida Rule of Criminal Procedure 3.850. Hargrave v. State, 396 So.2d 1127 (Fla.1981); Owens v. State, 397 So.2d 1235 (Fla. 2d DCA 1981).

Although appellant makes a bald assertion of ineffective assistance of counsel, he does not provide this court with the specific facts necessary to support such an assertion as required by Knight v. State, 394 So.2d 997 (Fla.1981).

AFFIRMED.

SCHEB, C. J., and RYDER and DAN-AHY, JJ., concur.


author: COWART, Judge.

text:
    Robin Doddridge GUTHRIE, Appellant, v. STATE of Florida, Appellee.
    No. 80-837.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 1981.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

Appellant was tried by a jury and found guilty of aggravated battery. § 784.-045(l)(a), Fla.Stat. (1979). On appeal, he argues the trial court erred in denying his motion for judgment of acquittal, arguing that the evidence only supported simple battery. § 784.03, Fla.Stat. (1979).

This case arose out of an unprovoked attack of an inmate at Brevard Correctional Institution wherein appellant and another inmate repeatedly hit the victim in the face, and on the shoulders and back. The appellant’s blows gained added force by a flashlight battery held in his fist. As the result of this attack, the victim suffered substantial bruises on his back and shoulders, a cut on his shoulder, a cut on his ear, a cut open lip, and a cut just above his right eye. Although the victim testified that his sight had not been permanently affected, the cut over his eye required twelve stitches and left a permanent scar. In addition to personally viewing the victim’s scar at the time of trial, the six members of the jury had the benefit of three photographs of the victim’s injuries taken shortly after he was injured. With the benefit of these personal observations, the trial judge denied the appellant’s motion for judgment of acquittal and the six members of the jury weighed the evidence and, after being adequately charged, found appellant guilty of aggravated battery.

The trial judge and the jury saw the injuries the victim incurred and the photographs. We cannot and should not reweigh the evidence in the cold record before us and hold as a matter of law that neither permanent disfigurement nor great bodily harm was proved. Whether or not a permanent facial scar is disfiguring should only be determined by personal observation. Notwithstanding the permanent nature of this scar, section 784.045(l)(a), Florida Statutes (1979), specifically does not require a permanent injury because many serious injuries leave no lasting effect on the health of the victim. In determining if “great bodily harm” has occurred in a given fact situation, Owens v. State, 289 So.2d 472 (Fla. 2d DCA 1974), is quite apt to the instant case:

“Great bodily harm defines itself and means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises as are likely to be inflicted in a simple assault and battery .... Whether the evidence describing such harm or injury is within the meaning of the Statute ... is generally a question of fact for the jury.” [emphasis added]
Id. at 474 (quoting Anderson v. State, 155 Ind.App. 121, 291 N.E.2d 579 (1973)).

AFFIRMED.

COBB and SHARP, W., JJ., concur.

      . The treating physician advised the victim that this cut required stitches but there was no testimony as to whether this was ever done.

      . Admission of one photograph of the victim’s face was objected to by defense counsel as being too “gruesome” for admission.

      . Section 784.045(l)(a) provides:
      (1) A person commits aggravated battery who, in committing battery:
      (a) Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; [emphasis added]
      Thus, proof of any one of the three types of injuries is sufficient for conviction.

      . Again note the defense counsel’s characterization in note 2, supra.

      . The facts involved in Owens v. State, 289 So.2d 472 (Fla. 2d DCA 1974), are practically identical to the facts in the instant case. There the victim was attacked by the appellant and two others as he was leaving the restroom of a bar. The victim’s injuries were described as “a broken nose, one eye completely shut and the other I could barely see out of. My lip was busted and I had blood on me.” Id. at 473. There, as here, the jury had an opportunity to examine the evidentiary photos of the victim’s injuries taken the following day. In weighing the seriousness of the injuries, the Owens court considered such a determination a question of fact for the jury.


author: ORFINGER, Judge.

text:
    In re ESTATE OF William Richard LAMBERSON, a/k/a William R. Lamberson, Deceased. Mary Frances SCHWARTZ, Appellant, v. Harold V. LAMBERSON, Jr., Appellee.
    No. 81-217.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 1981.

      Harlan Tuck of Giles, Hedrick & Robinson, Orlando, for appellant.
    J. P. Carolan, III, of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for appellee.
   ORFINGER, Judge.

In this will contest the trial court revoked probate of decedent’s will of January 23, 1980, and the beneficiary of that will appeals. The revocation was based on a finding that the decedent lacked testamentary capacity and that appellant exercised undue influence upon decedent in the procurement of the will.

Appellant presents two issues on appeal; (1) Whether the evidence sustained the trial court’s findings that decedent lacked testamentary capacity during January, 1980; and (2) whether the trial court erred in deciding the ease with the burden of proof on appellant, because the court did not recognize the dissipation of the presumption of undue influence which had arisen against appellant.

The trial judge’s detailed findings of fact and conclusions of law have greatly expedited our review of this case and we recite them in full.

FINDINGS OF FACT

1. On July 23, 1979, William Richard Lamberson executed a Last Will and Testament leaving the residuary of his estate to his relatives including the Petitioner, Dr. Harold Lamberson, Jr.
2. On January 23, 1980, William Richard Lamberson executed a Last Will and Testament naming Mary Schwartz as ultimate beneficiary and personal representative of his estate.
3. In January, 1980, William Richard Lamberson was 89 years old, chronically ill, lived alone with his elderly wife, and was unable to care for himself and his wife without assistance.
4. In December, 1979, Hazel Bulla who had been assisting the Lambersons in their day-to-day needs became ill and was unable to continue to provide assistance.
5. In January, 1980, Mary Schwartz, who had no history of a relationship with the Lambersons other than having met the Lambersons during her employment in the office of the Lambersons’ podiatrist, offered to assist the Lambersons. Although she continued her full-time employment at the podiatrist’s office, she persuaded William Lamberson to execute an agreement drafted by her whereby she would receive $1,500 a month compensation for her assistance. In addition, she received their power of attorney to transact financial affairs for them and held herself out as their guardian.
6. During the middle of January, 1980, Mary Schwartz recommended her attorney to draw up a Will for the decedent. She personally gave the attorney the instructions for preparing the Will, secured her friends to witness the Will, had the Will executed in her presence, and maintained possession of the Will before, during and after its execution.
7. The following month both Mr. Lamberson and his wife died.
8. The testimony of the decedent’s family physician, Dr. Culpepper, and the testimony of Dr. Allen, who attended the decedent during the decedent’s hospitalization in January, 1980, and the testimony of Dr. Harold Lamberson, Jr. establishes that the decedent lacked testamentary capacity during January, 1980.
9. The testimony of Mrs. Mary Starr, Mr. Ernest Bentley and Mrs. Hazel Bulla, long-time friends of the decedent, described inappropriate and bizarre behavior by the decedent during the last months of his life. In addition, their testimony established an abrupt change of the decedent’s longtime and often expressed testamentary desires regarding both the distribution of his estate and his desire for burial rather than cremation.
10. The evidence further established that upon discovering the Lambersons’ predicament of having no one to take care of them after Hazel Bulla became ill, Mary Schwartz failed to notify or inform the relatives of the Lambersons’ plight, and, subsequent to moving the Lamber-sons to her residence, failed to notify the Lambersons’ friends of their new address even though said address was requested by the friends.

CONCLUSIONS OF LAW

1. During January 1980, Mary Schwartz occupied a confidential fiduciary relationship with the decedent, William Richard Lamberson.
2. During January, 1980, Mary Schwartz was active in the procurement of the contested January, 1980 Will.
3. During January, 1980, Mary Schwartz exercised improper and indue [sic] influence upon the decedent in the procurement of the Will.’
4. During January, 1980, the decedent, William Richard Lamberson, lacked testamentary capacity.
It is, therefore,
ORDERED AND ADJUDGED that the Petition to revoke the probate of the Will of William Richard Lamberson dated January 23, 1980 is granted and the probate of said Will be and the same is revoked.

I. TESTAMENTARY CAPACITY

On the issue of testamentary capacity, there was a good deal of medical testimony concerning the 89 year-old decedent’s physical condition during the last years of his life. Dr. Culpepper, his family physician, had treated decedent for several years. Decedent suffered from arteriosclerosis and his mental state was “unreliable” during the last years of his life, and had deteriorated further during the last few months prior to his death in February, 1980. Dr. Culpepper last saw decedent on January 17, 1980, one week before the will in question was signed. In his opinion, decedent did not have the mentality to make decisions on how to dispose of his property, and did not have the mental capacity to make a will in January, 1980, notwithstanding the possibility of some lucid intervals.

Dr. Allen, a specialist in internal medicine, treated decedent during a hospitalization from January 28,1980, through February 5, 1980. Dr. Allen stated his opinion that at the time of hospitalization, decedent was suffering from arteriosclerosis and chronic brain syndrome, was incapable of making a will and that the same mental condition had probably existed on January 23, 1980.

Three friends of decedent all testified that a provision in decedent’s January 23, 1980 will requesting cremation was a radical and uncharacteristic departure from his lifelong plan to be buried in New York in a Catholic ceremony. Mrs. Starr and Mrs. Bulla testified that decedent had expressed his desire on many occasions to leave everything he had to his family. Mrs. Starr stated that decedent would sometimes get lost going across the street to the store and on one or two occasions had called to ask her whether it was daytime or nighttime. Mrs. Bulla testified that decedent sometimes did not recognize her; that he thought he had moved when he hadn’t, and that he was extremely paranoid. Mr. Bentley also testified to occasions when decedent would go to the store and get lost on his way home.

Opposed to this evidence was the testimony of the persons who witnessed the execution of the will in appellee’s home. They were friends of appellee and had not known decedent prior to the time the will was signed. Their opinions that decedent seemed alert and stable when appellant read the will to him and that he seemed to understand it were based on that single contact with him. Appellant testified that when the will was executed on January 23, 1980, decedent was particularly alert. She stated that he had twice taken his car to the garage that day for repairs. However, she also related an incident during January or February, 1980, when decedent got up in the middle of the night and turned on all of the stove burners, almost causing a fire, and that there were times when he failed to recognize her. She stated that after January 23,1980, he conducted no more business on his own, and she did it for him.

Appellant’s contention that the trial court misconstrued the legal effect of the evidence is based on the proposition that testamentary capacity to make a will has reference to the condition of the testator at the time the will is executed, and even if made by one insane the will is valid if made during a lucid interval. In re Carnegie’s Estate, 153 Fla. 7, 13 So.2d 299 (Fla.1943). However, the factual circumstances in Carnegie are far different than those here.

We believe the rule of law applicable to this case was stated in In re Estate of Zimmerman, 84 So.2d 560 (Fla.1956), where the court said:

A study of the pertinent cases reveals that the precise condition of the testator’s mental health at the time he executed his will may be established in more ways than one. It may be established by direct proof as to its condition when the will was executed or it may be established by inferences from proof of his mental condition leading up to and following the execution of the will when such proof is properly related and connected. The evidence shows that the testator was afflict ed with arteriosclerosis, a progressive disease of the arteries which seriously affects and may ultimately dethrone the reason, judgment and power of the victim to bear in mind the status of his property or those who would be the natural subjects of his bounty. The evidence here shows that sometime in 1947 or 1948 the testator was in a serious condition as a result of this affliction. What the condition of his mental health was when he executed his will and codicil in 1949 was the immediate problem confront the probate court. “Before hand” and “afterward” proof of the testator’s mental behavior would certainly be a lead to this and would be proper for the court to consider in making up his judgment as to whether or not the will was made during a lucid interval as appellants contend or whether it was made when the mind was incompetent to do so.

Id. at 562. See also In re Estate of Weihe, 275 So.2d 244 (Fla.1973) (where Zimmerman was approved and where the Supreme Court held that the “beforehand” and “afterward” proof of mental condition was sufficient evidence to raise a conflict with testimony of mental condition at the precise time of executing the will, such conflict to be resolved by the trier of fact).

When considered with the fact that the disposition of decedent’s entire estate to a person he had known for only a few weeks was an unnatural disposition, the “before” and “after” evidence of the testator’s mental condition was sufficient to sustain the trial court’s conclusion that decedent lacked testamentary capacity when the will in question was executed.

II. THE CONFIDENTIAL RELATIONSHIP

If a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in the procurement of the contested will, the presumption of undue influence arises. In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971); Allen v. Estate of Dutton, 394 So.2d 132 (Fla.5th DCA 1980).

In Carpenter, the Supreme Court reviewed and summarized circumstances which could be considered in determining whether active procurement existed: (a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution.

When a reasonable explanation of the proponent’s participation has been given, the presumption disappears, but

since the facts giving rise to the presumption are themselves evidence of undue influence, those facts will remain in the case and will support a permissible inference of undue influence, depending on the credibility and weight assigned by the trial judge to the rebuttal testimony. Carpenter, 253 So.2d at 704.

Appellant quotes the trial judge’s stater ment that “also, I think that there was evidence or certainly the presumption would arise of undue influence and I don’t believe it was dispensed with by a reasonable account of the circumstances,” as meaning that the trial judge decided the issue of undue influence under the mistaken belief that the presumption still existed and had not been rebutted by appellant’s explanation, and that he was, therefore, required to make a finding of undue influence as a matter of law.

The sufficiency or reasonableness of the explanation to rebut the presumption is for the trial judge to determine. Carpenter. However, we do not find in the trial judge’s remark an indication that he was relying on the presumption for his determination. The evidence was clear and strong; the confidential relationship was conceded. Each of the Carpenter criteria for active procurement was present in this case. It is clear that the appellant’s explanation that decedent wanted her to have his estate because she was caring for him in his last days did not satisfy the trial judge, particularly when coupled with the evidence of the testator’s diminished mental capacity which is also a factor the trial court could consider along with the other evidence to determine if undue influence existed.

The undue influence required to invalidate a will is conduct which amounts to overpersuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and willpower of the one making the will. In re: Carpenter’s Estate, 289 So.2d 410, 411 (Fla.4th DCA 1970). Certainly, in light of the evidence outlined here, plus further evidence and factual findings by the trial court that appellant moved decedent into her home, failed to notify his family, refused to notify his friends of his whereabouts, and never told decedent of his wife’s death two weeks before his own, there was sufficient competent evidence to sustain the trial court’s finding that appellant procured the execution of the January 23,1980, will by undue influence.

The final judgment is AFFIRMED.

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

      . In testifying about Mrs. Lamberson’s condition, the physician described her also as “unreliable,” which he defined as: “[you] couldn’t communicate with her. You couldn’t give her specific directions because she wouldn’t remember them long enough to carry them out. She talked about unimportant, nonessential, nonsensical things, very flighty. She would talk about things that were unrelated to the subject matter.” The doctor then ascribed this definition to Mr. Lamberson’s condition as well.


text:
    ALPHA ELECTRIC SUPPLY, INC., a Florida corporation, Appellant, v. DRAKE CONTRACTING, INC., a Florida corporation, Appellee.
    No. 81-458.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 1981.

      Scott R. McMillen and Usher L. Brown of Mateer, Harbert, Bechtel & Phalin, P. A., Orlando, for appellant.
    Wayne C. McCall and Edwin C. Cluster of Ayres, Cluster, Curry, McCall & Briggs, P. A., Ocala, for appellee.
   ORFINGER, Judge.

Plaintiff appeals from a summary final judgment in favor of defendant in this action for breach of contract. We find that material issues of fact remain to be resolved, and we reverse.

Appellee, Drake Contracting, Inc. (Drake), was general contractor in the construction of a prison facility known as Baker County Correctional Institute, and appellant, Alpha Electric Supply, Inc. (Alpha), was the supplier of materials to Drake’s electrical subcontractor, United Electric Company (United). Alpha was also doing business with United on other projects, and United owed Alpha several hundred thousand dollars. While still furnishing materials to the Baker County project, Alpha learned that United was “in trouble”. This information was apparently known to Drake also.

On February 23, 1978, Drake and Alpha entered into the agreement which forms the basis for this controversy. In the agreement, Drake agreed to “continue making any and all checks to United Electric Company on a joint basis with Alpha Electric Supply, Inc.” In return, Alpha agreed that it was relinquishing any lien rights it had in the project. There is no dispute that at the time this agreement was signed, Alpha was still supplying materials for the Baker County project.

Alpha filed the instant action alleging: (1) a breach by Drake of the letter agreement of February 23,1978; (2) a tort claim based on misrepresentations by Drake in inducing Alpha to waive its rights; and (3) a claim in quantum meruit. The trial court entered the summary judgment for Drake on these grounds: (1) that Alpha had not given the statutory notice and therefore had failed to perfect any lien it had, thus there was no consideration for the agreement; (2) even if the agreement was binding, Drake had issued joint checks to United and Alpha for the materials furnished by Alpha to the Baker County project and thus had fully performed; and (3) Alpha had not filed its suit within one year following completion of delivery of materials, thus under section 255.05(2), Florida Statutes (1977), the action was barred.

A contract must be supported by consideration and where a party has a bona fide belief that he has a legal right, forbearance to enforce that right may be consideration for an agreement. Uwanawich v. Gaudini, 334 So.2d 116 (Fla. 3d DCA 1976); City of Valparaiso v. Long, 141 So.2d 334 (Fla. 1st DCA 1962).

On motion for summary judgment, the moving part (appellee here) has the burden of proving absence of consideration even though at trial the burden might be on the other party to prove that there was consideration. Biro v. Geiser, 199 So.2d 461 (Fla.1967). The burden of proving the complete absence of a triable issue of material fact is on the movant and the proof must be such as to overcome all reasonable inferences which could be drawn in favor of the opposing party. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

The agreement in question clearly states that it is a general release to Drake and that Alpha relinquishes all right to a claim of lien after final payment and re-tainage has been paid for the project by Drake. At the time Alpha signed this agreement, it did in fact have rights to a “lien” against the project because of United’s non-payment. Alpha’s president testified that at this time and later he sincerely believed that his company had such rights and that he could have sued at any point. This in itself is sufficient to create an issue on the question of consideration. Additionally, at the time the contract was signed, the right did exist because Alpha was still supplying materials and Alpha’s subsequent failure to perfect its rights under section 255.05(2) could well be interpreted as performance by appellant of its promise.

Appellee says that the parties did not intend an immediate release of appellant’s rights, but only a release after final draw and retainage was paid. However, appellant contends otherwise. At best, this dispute would require extrinsic evidence of the intention of the parties, thus precluding a summary judgment. Mathews Corp. v. Lutton Enterprises, Inc., 343 So.2d 902 (Fla. 4th DCA 1977).

The trial court held as a matter of law that if the agreement was valid, it was fully performed. Appellant contends that the agreement clearly and unequivocally says that any and all checks to United would be made jointly to Alpha. Drake contends that only payment for materials supplied by Alpha to United were to be made jointly to them. The record shows that United was indebted to Alpha for large sums over and above the amounts involved in the Baker project, and the interpretation given the agreement by Alpha can certainly be drawn from its language. Arguably, Drake’s interpretation might also be drawn, but this presents an issue of fact, not to be decided by summary judgment. Mathews.

Lastly, the trial court’s holding that the action was barred by the one-year limitation of section 255.05(2), Florida Statutes (1977), is also incorrect because this action was not based on the statute, but on the written agreement between the parties as to which agreement the one-year limitation does not apply.

The summary final judgment is reversed, and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

DAUKSCH, C. J., and COWART, J., concur.

      . The portions of the letter agreement pertinent to the issues here, read:
      Persuant [sic] to our various discussions relating to the referenced project, this letter is prepared for your records. As you know, Alpha Electric Supply, Inc. is supplying the electrical materials for this project. You are also aware that we have filed a Notice To Owner as of April 14, 1977, as required by Florida Statues [sic]. It was agreed some time ago that all draws paid to your subcontractor would be made jointly to United Electric Company and Alpha Electric Supply, Inc.
      * * * * * *
      Therefore, this letter is a general release to Drake Contracting, Inc. Alpha Electric Supply, Inc. herein relinquishes all right to a claim of lien on this project, or any kind or class of claim on this project, after the final payment and retainage has been paid for this project by the general contractor, Drake Contracting, Inc.
      In the interim, and until all monthly draw requests for electrical sub-contract work has been made by United Electric Company, including the final draw request and retainage, Drake Contracting, Inc. agrees to continue making any and all checks to United Electric Company on a joint basis with Alpha Electric Supply, Inc. This agreement is hereby acknowledged by Drake Contracting, Inc. by execution of a copy of this letter as attached and its return to Alpha Electric Supply, Inc.
      sfs * sfc * % *

      . Thus, under section 255.05, Florida Statutes (1977), which required that a claimant not in privity with the contractor, give written notice to the contractor and the surety of performance and non-payment within 90 days after complete delivery of the materials or supplies, Alpha was still in a position to assert a claim against the general contractor and its surety.


text:
    Robert J. LEE, Petitioner, v. Orie N. LEE, Jr., Lillian C. Lee, and Lillian C. Lee and Sons, a general partnership, Respondents.
    No. 81-1370.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 1981.
    Joseph E. Foster of Akerman, Senterfitt & Eidson, Orlando, for petitioner.
    John A. Sutton, Orlando, for respondent Orie N. Lee, Jr.
    Donald R. Corbett, Orlando, for respondent Lillian C. Lee.
   COWART, Judge.

Petitioner, plaintiff in a suit for dissolution of a partnership, petitions this court for a writ of common law certiorari to review the trial court’s non-final order denying his motion for appointment of a receiver.

The appointment of a receiver is an ancillary remedy, is not a matter of right and rests in the sound judicial discretion of the equity judge. A trial judge who has jurisdiction over the parties and the subject matter can consider the matter and, correctly or erroneously, grant or deny the appointment of a receiver without permitting irreparable injury and without departing from procedural due process and thus without departing from the essential requirements of law. In such case, as here, review by certiorari should be denied. See The Hawaiian Inn of Daytona Beach, Inc. v. Snead Const. Corp., 393 So.2d 1201 (Fla. 5th DCA 1981). The petition for certiorari is

DENIED.

DAUKSCH, C. J„ and SHARP, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    Sylvia L. WHITTEN, Appellant, v. Robert C. WHITTEN, Appellee.
    No. 80-2108.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1981.
    John T. Blakely of Johnson, Blakely, Pope, Bokor & Ruppel, Clearwater, for appellant.
    Joseph R. Park of Joseph R. Park, P. A., Clearwater, for appellee.
   HOBSON, Acting Chief Judge.

Appellant wife appeals a judgment which modified appellee husband’s visitation privileges with the parties’ minor daughter.

The parties’ marriage was dissolved in September, 1979. Custody of the child was awarded to the wife. The wife claimed that the husband had sexually molested the child, and allegation which the husband denied. Both parties agreed to submit to polygraph tests and stipulated that the results of each test would be admissible at the final hearing. The polygraph tests were administered on August 21, 1979, by a Mr. Williams. His report indicated that the charges of sexual abuse were true. On August 29,1979, the husband took a second polygraph test administered by a Mr. Davis. The following day at final hearing the results of the first polygraph test were admitted into evidence as stipulated and considered by the court. At the conclusion of the hearing, the husband’s counsel stated that his witness, Mr. Davis, was unable to be present at the hearing and requested a continuance in order to receive his testimony. The court replied:

THE COURT: ....
On the ruling of the Court, is there anything further, Mr. Park? The Court would acknowledge that you have suggested that you have an additional witness to testify on the test given to your client, the Stress Evaluation but that witness is not here today and cannot be here today. The Court will not continue the case further to have the witness brought in but, advises you that in as much [sic] as the visitation rights — the rights concerning visitation will be subject to a further hearing if necessary. You may bring in that witness, at that time.

Husband and wife agreed that the issue of visitation could be addressed at a later hearing, and the court entered a final judgment of dissolution which stated in paragraph 10:

That the Court retains jurisdiction of this cause for the purpose of entering further orders pertaining to visitation as may become necessary as a result of any further evidence presented to this Court and further, in order to enforce the executory provisions of this Judgment.

The judgment allowed the husband weekly visits with the child, but only in the presence of the wife.

Six months later, the husband file a supplemental petition for modification of the visitation privilege. At hearing, over the wife’s objection, the court admitted into evidence the results of the second polygraph test which indicated that the husband’s denial of sexual abuse was true. At the conclusion of the hearing, the court entered a final judgment modifying the visitation privilege to allow the husband to exercise visitation in the presence of persons other than the wife.

The husband contends that the admission of the results of the second polygraph test was proper because the parties had so stipulated and the court had agreed at the original hearing to permit Mr. Davis to testify at a later date. We have examined the record in some detail and are unable to detect any stipulation, written or oral, which would permit the second test results to be admitted. Unless stipulated by the parties, polygraph evidence is inadmissible in Florida. Young v. State, 387 So.2d 512, 513 (Fla. 1st DCA 1980).

We hold that the trial court committed reversible error in admitting the second test results into evidence. We reverse the final judgment on the husband’s petition for modification of visitation, reinstate the original temporary visitation order, and remand the cause for a further hearing. In view of the fact that the original visitation order was of a temporary nature and contemplated further action by the trial court, the husband on remand will not have the burden of showing a change of circumstance in order to seek a modification of visitation. The hearing on remand will be de novo, and the parties may utilize whatever evidence is already in the record as well as any further testimony which may properly be brought before the court.

REVERSED and REMANDED.

GRIMES and DANAHY, JJ., concur.


author: RYDER, Judge.

text:
    Larry Edward BROCKELBANK, Appellant, v. STATE of Florida, Appellee.
    No. 81-871.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1981.
    Glen L. Brock of Martin & Brock, Lake Wales, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Larry Edward Brockelbank appeals his conviction and sentences for ten counts of burglary and grand theft, alleging the trial court erred in denying his motion to suppress his confessions as involuntary. We hold that the confessions were obtained in exchange for promises, and we reverse.

The testimony at the suppression hearing below indicated that police officers arrested appellant for a residential burglary. He was transported to a police station whereupon appellant requested treatment for heroin withdrawal and expressed a desire to get out of jail. He was transferred to a hospital for treatment of heroin withdrawal. After meeting with his probation officer (from a prior offense) and police officers in the hospital, appellant agreed to assist the officers and effect the return of various items stolen during other crimes in return for a promise of an immediate release from jail on the charge filed. The release was for the purpose of returning the property and to permit appellant to get his personal affairs in order.

The police officers also promised that no other charges would be filed against appellant immediately, and told appellant that his release was arranged. Appellant then confessed to the charges on appeal. The authorities explained the agreement to a judge who released appellant on a $1,000.00 bond. Two weeks later, he was rearrested on all charges and after the motion to suppress was denied, he entered a plea of nolo contendere to the cases on appeal, reserving the right to appeal the ruling denying suppression. Both parties stipulated that the denial of the motion to suppress was dispos-itive as to the charges on appeal.

A confession cannot be obtained by any direct or implied promise, however slight, if it is to be admissible. Fillinger v. State, 349 So.2d 714 (Fla. 2d DCA 1977), cert. denied, 374 So.2d 101 (Fla.1979). Below, the confessions were obtained in return for the promise, later carried out, to release appellant from custody so that he could put his personal affairs in order. Since this uncontradicted testimony indicates the confessions below were induced by promise of benefit, the state failed to carry its burden of proving at the suppression hearing that the confessions were freely and voluntarily made.

REVERSED and REMANDED with instructions to set aside only the conviction and sentences imposed in the cases of this appeal.

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


author: HOBSON, Judge.

text:
    STATE of Florida, Appellant, v. Melvin D. ALLEN, Appellee.
    No. 81-876.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1981.
    Jim Smith, Atty. Gen., Tallahassee, Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.
   HOBSON, Judge.

The State of Florida appeals orders granting appellee’s motions to suppress evidence and to suppress confession or admissions. We reverse.

The record shows, and the trial court was aware that the deputies had probable cause to arrest appellee’s passenger and search appellee’s van. The issue before us is whether, after discovering a small change purse in the floor of the passenger compartment, the deputies were required to obtain a search warrant in order to open the purse and examine its contents. The trial court held that “the better procedure would have been the lesser intrusion of seizing [the change purse] and then obtaining a warrant.”

Under the facts of this case, the Supreme Court decision in New York v. Belton, - U.S. -, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) is controlling. The Belton court held:

... [W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment.

101 S.Ct. at 2864.

The trial court granted appellee’s motion to suppress confession or admissions based on its decision that the evidence was illegally seized.

We reverse the orders granting the motions to suppress evidence and to suppress confession or admissions. This cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

SCHEB, A. C. J., and SCHOONOVER, J., concur.

      . We note that the trial court did not have the benefit of the Belton opinion when it granted appellee’s motion.


text:
    Charles NOLES, Appellant, v. STATE of Florida, Appellee.
    No. 81-985.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1981.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant challenges his conviction for aggravated battery and the sentence of three years’ imprisonment, two years’ probation and a $250 fine.

We find no merit in appellant’s first contention that it was error for the lower court to accept a nolo contendere plea without first determining whether there was a factual basis for that plea. Failure of a trial judge to establish, on the record, the factual basis for a plea does not require that the plea be set aside unless manifest injustice results. Williams v. State, 316 So.2d 267 (Fla.1975). There is no indication from either the record or the arguments on this appeal that Noles was prejudiced in any manner which would justify vacating his plea.

In regard to appellant’s second contention, we agree that his sentence violates the rule enunciated in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). In Villery, the Florida Supreme Court held that a period of incarceration followed by probation imposed either as a condition of probation or under a true split sentence as authorized by section 948.01(4), Florida Statutes (1979), cannot equal or exceed one year in either instance. As noted in our recent opinion of Lewis v. State, 402 So.2d 482 (Fla.2d DCA 1981), this gives the trial judge the option of either modifying the illegal sentence to provide that all or any portion of the remainder of the sentence shall be probation or withdrawing the original sentence and then resentencing defendant to incarceration for whatever time his offense may provide, less credit for time served. Here, the trial judge would have the option of releasing Noles on probation for the remainder of the term or resentencing him to five years in prison, less credit for time served.

Since our decision in Lewis was written subsequent to the filing of Noles’ appeal and there is the possibility that he could be resentenced to a lengthier period of incarceration, we prefer to let him raise this issue with the trial court by proper motion.

Therefore, the decision below is AFFIRMED, without prejudice to appellant to seek resentencing under Villery in a motion filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.850.

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


author: JOANOS, Judge.

text:
    George T. CANNON, Jr., Appellant, v. Linda P. MORRIS, Appellee.
    No. YY-271.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1981.
    Michael Gillion of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, Ala., for appellant.
    No appearance for appellee.
   JOANOS, Judge.

The former husband appeals from a summary judgment ruling against his complaint seeking partitioning of the marital home which he owns as a tenant in common with the former wife. We reverse.

The marriage of appellant George Cannon and appellee Linda P. Morris was dissolved in 1977. In its order dissolving the marriage, the lower court incorporated a document entitled “Stipulation and Property Settlement Agreement” entered into by the parties, in which it was agreed that the wife would have the exclusive use and possession of the marital home until the minor children become 18 years of age, marry, die or become self-supporting.

In 1980 appellant filed a complaint seeking a partitioning of the marital home. Appellant submitted an affidavit indicating that the appellee had remarried, and that her new husband had remodeled the home for his own purposes. The appellee moved for summary judgment, arguing that this proceeding was rendered res judicata by virtue of the property settlement agreement. Summary Judgment was granted to appellee and this appeal ensued.

Appellee had also moved for attorney’s fees based on either the complete absence of a justiciable issue of law or fact, pursuant to Section 57.105, Florida Statutes (Supp.1978), or appellee’s success in defeating the partitioning, pursuant to Section 64.081, Florida Statutes (1967). Without stating the basis for its order, the lower court in the order appealed from awarded attorney’s fees to the appellee.

Appellant argues that the summary judgment was improper and that he was entitled to have the property partitioned. His second point is that the attorney’s fee award was improper. We agree on both points.

In regard to the issue of partitioning, we must first analyze the effect of the “Stipulation and Property Settlement Agreement.” If this was a true property agreement, we are confronted by the legal principle that property settlement agreements are usually not subject to modification without the consent of the parties. Johnson v. Johnson, 386 So.2d 14, 15 (Fla. 4th DCA 1980); 25 Fla.Jur.2d Family Law §§ 392-393 (1979). Further, if the agreement is not subject to modification, the appellant cannot have an immediate right to possession of the home, and, therefore, the general rule of law, that a tenant in common who has no immediate right to possession of property has no right to seek a partitioning, is applicable. Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253 (1947).

However, with regard to modification of the purported property agreement, it is the contents and not the title of a document that determine whether it is in the nature of a property settlement agreement. Fleenor v. Fleenor, 35 Fla.Supp. 135, 136 (Fla. 15th Cir. 1971). In Horn v. Horn, 398 So.2d 935, 937 (Fla. 3d DCA 1981), a case involving a purported property settlement agreement, the term “exclusive use and enjoyment of the marital home” was viewed as a term of art, awarding possession of the marital home as a temporary incident of child support rather than as part and parcel of a property settlement agreement. Implicit in Horn is the recognition that child support agreements, unlike property settlement agreements, are always subject to judicial modification whenever there is a change in circumstances from the time of the award.

We believe that the rationale of the Horn case is sound. The document before us included provisions for child custody and support as well as ones pertaining to the division of property. A study of that agreement makes it clear that the granting to the wife of the exclusive use and possession of the home was an incident pertaining to child custody because it was to last only until the children who were placed in the wife’s custody reached majority, married, died or became self-supporting. Further, the agreement retained the character of the parties’ ownership of the property as being tenants in common.

Remarriage of the spouse in possession of the marital home is a change in circumstances, and it also terminates that individual’s right to the exclusive use and possession of the marital home. It restores to the spouse out of possession a right to immediate possession and concomitant with that right, the right to seek a partitioning of the property. Lambert v. Lambert, 403 So.2d 484 (Fla. 1st DCA 1981); Strollo v. Strollo, 365 So.2d 189 (Fla. 1st DCA 1978). Therefore, we reverse the summary judgment.

Regarding the award of attorney’s fees, Section 64.081, Florida Statutes, provides for an award of attorney’s fees in a partitioning action, but it is improper to award fees pursuant to this statute in the absence of a partitioning. Wilisch v. Wilisch, 335 So.2d 861, 866 (Fla. 3d DCA 1976). Because there was no partitioning below, it seems implicit that the trial court found a lack of justiciable issue of law or fact in this case and awarded fees pursuant to Section 57.105, Florida Statutes. Due to our reversal of the summary judgment there was, quite obviously, a justiciable issue and the award of attorney’s fees was improper.

We therefore REVERSE and REMAND this case for further proceedings not inconsistent with this opinion.

ERVIN and WENTWORTH, JJ., concur.

      . 6. The wife shall have the exclusive use and occupancy of the marital residence located at 3201 Rothschild Drive, Pensacola, Florida, until each of the minor children reach the age of 18 years, marry, die or become self-supporting, whichever event shall first occur. The wife shall be solely responsible for the mortgage payments, taxes, insurance and any alterations, except that the husband shall share equally with the wife the cost of any major repair to the home or its fixtures.
      7. When and if the marital home is sold, the wife shall be credited for all payments made by her in excess of her obligation as a tenant in common for mortgage principal and interest, taxes, insurance and repairs done in order to prepare the home for sale. Remaining balance shall be divided equally.
      (emphasis supplied)


text:
    Shirley Griffin O’BRIEN, Appellant, v. William James O’BRIEN, Appellee.
    No. ZZ-455.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1981.

      Albert H. Mickler, Jacksonville, for appellant.
    Wayne E. Flowers, Jacksonville, for ap-pellee.
   PER CURIAM.

The wife brings this appeal from an order modifying the husband’s child support obligation established nine months earlier in the final judgment of dissolution. The order reduces the support from $100.00 per week for the parties’ two minor children to $25.00 per week for the children, but provides for reconsideration of the question of child support in five months. We affirm.

The husband testified that he is unable to meet the financial requirements made of him by the terms of the decree because his home improvement business, which in the past year had netted him $28,000, suffered a considerable slump due to the depressed economy. At the time of the hearing, the husband was netting approximately $158.00 per week after taxes, and his expenses amounted to $408.19, giving him a weekly deficit of $249.65. The wife was employed making $638.80 per month and received a rent free apartment valued at $295.00 per month as part of her pay as a resident manager of an apartment complex. With respect to her expenses for the children, she testified that the children continued to have support needs of $400.00 per month.

Although the modification order allows the husband to pay less than the needs of the children require, we cannot say the trial judge abused his discretion based upon the evidence of changed conditions causing the husband to be unable at this time to contribute a more reasonable and realistic allowance for support. While we agree that $25.00 per week is clearly inadequate to support the children, we recognize as equally true that the sums left to the husband after making the support payments and meeting the other financial requirements of the divorce decree are even less adequate for his support.

We recognize that decrees providing for child support are impermanent in character and are res judicata of issues only so long as the facts and circumstances of the parties remain the same as when the decree was entered. Eaton v. Eaton, 238 So.2d 166 (Fla. 4th DCA 1970). The law is clear, however, that a modification may be granted only upon a showing of substantial, material, involuntary, and permanent changes. Section 61.13, Florida Statutes (1949); In Re Marriage of Johnson, 352 So.2d 140 (Fla. 1st DCA 1977). We caution, however, that a strong showing should be required before a modification is granted based upon an alleged change in economic or market conditions, and this is especially so when the party seeking a reduction in child support payments is operating in an entrepreneurial capacity. See Gardner v. Gardner, 64 So.2d 679 (Fla.1953); Chastain v. Chastain, 73 So.2d 66 (Fla.1954). It goes without saying (without any suggestion or inference that appellee has done so) that one so engaged can easily record a drastic fluctuation in income by the degree of initiative employed in securing and accepting remunerative work or business.

We further emphasize that by our affirmance of the order appealed we do not sanction the relitigation of support and alimony awards under the guise of modification proceedings filed only a few months after the date of the final decree. We affirm the order appealed by treating the trial court’s order as one granting the husband a five month respite from his support obligation after which he will have the burden of proving that he does not have the financial ability to resume paying the $100.00 per week child support ordered in the final judgment or that he does not have the potential to gain other employment equal to his capabilities so that he can meet his financial obligations. See Desilets v. Desilets, 377 So.2d 761 (Fla.2nd DCA 1979).

Accordingly, the order appealed is AFfirmed!

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.

      . The order also makes changes in other provisions of the final judgment, but these matters are not the subject of this appeal.

      . Our references to the testimony are taken from a statement of the evidence under Rule 9.200(b)(3), as approved by the trial court.

      . The motion for modification in this case was filed less than six months, and the hearing was held only nine months, after the final decree.


text:
    Luis ACEVEDO (Deceased), Employee, and Gladys and Wiltredo Acevedo, Appellants, v. AMPCO PRODUCTS COMPANY and Fireman’s Fund American Insurance Companies, Appellees.
    No. AB-86.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1981.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellants.
    Barry A. Pemsler of Richard, Tharp & Pemsler, Miami, for appellees.
   PER CURIAM.

In this worker’s compensation case the claimants appeal a deputy commissioner’s order finding that the carrier did not act in bad faith in handling the claim under Section 440.34(2)(b), Florida Statutes (1979). As a result the claimants were responsible for their own attorney’s fee.

Under this court’s decision in Florida Erection Services Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981), a deputy’s findings with regard to bad faith will not be disturbed absent a clear abuse of discretion or departure from the essential requirements of the law. In this case, however, the order appealed contains express findings which lead us to believe that the deputy might have come to a different conclusion regarding bad faith in handling the claim given the benefit of McDonald, which was released after the order in this case was rendered. Specifically the deputy found as follows:

that compensation benefits of $130.83 per week were due and owing to the dependent widow fifteen days after the carrier had notice and knowledge of the injury on March 3, 1980; and that by the clear, precise and unambiguous language of the statute penalties were due and owing to the dependent widow at the same time as, but in addition to, increased compensation benefits of $9.69 per week paid to the claimant on July 8, 1980. I find that the carrier knew such penalties were due and owing and offered no legal excuse or justification for failure to pay statutory penalties at the same time as, and in addition to, the late payment of compensation benefits.
I find that compensation benefits due and owing the dependent widow were not paid until July 8,1980, approximately two and a half months after her claim for determination of her proper compensation rate was filed with the Division in Tallahassee, Florida, on April 23, 1980, causing her to suffer the economic loss of revenue due and owing to her for a period of four months.... (e.s.)

Because the deputy did not have the benefit of this court’s decision in McDonald when the order was entered and because of certain findings in the order which seem to contradict the finding that there was no bad faith in handling the claim, we reverse and remand for reconsideration in light of McDonald.

Because of this unique situation and the absence of any statutory authority for an award of appellate attorney’s fees except potentially Section 440.34(2)(b) together with Section 59.46, Florida Statutes, see Ship Shape v. Taylor, 397 So.2d 1199 (Fla. 1st DCA 1981), we withhold acting on the motion for an appellate fee pending the deputy’s ruling after reconsideration of the matter. Should the deputy rule in the claimant’s favor, claimant’s attorney may petition this court to act on the motion.

Reversed and remanded.

ROBERT P. SMITH, Jr., and MILLS and SHIVERS, JJ., concur.