text:
    Isabel T. RION, Appellant, v. Fount H. RION, Jr., Appellee.
    No. 81-795.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1982.
    Rehearing Denied Nov. 10, 1982.

      John F. Roscow, III and James L. Tomlin-son of Scruggs & Carmichael, Gainesville, for appellant.
    Noah C. McKinnon of Coble, McKinnon, Rothert, Bohner and Godbee, P.A., Daytona Beach, and Cynthia S. Tunnicliff of Macfar-lane, Ferguson, Allison & Kelly, Tallahassee, for appellee.
   PER CURIAM.

Isabel Rion appeals from a final judgment of dissolution. She argues that the trial court erred in failing to award her lump sum alimony and any interest in certain jointly owned intangibles, and in setting permanent alimony at only eight hundred dollars ($800) per month with an automatic reduction to two hundred forty-five dollars ($245) per month (at best) within five years. We agree the record reveals an abuse of discretion in this case and accordingly we reverse the judgment as to alimony and property matters.

The parties were married on April 4, 1970, and lived as husband and wife until they separated on or about June 1, 1980. At the time of the marriage, the wife was fifty-two years of age and the husband, fifty-one. Both had been married previously-

Mr. Rion was vice president and general manager of a family owned business in Palatka. At the time of the marriage, Mrs. Rion was employed on a seasonal basis earning $150-200 per week with a dress shop in the Palm Beach area. She had stock and furniture as well as jewelry valued at $8,425 (replacement value). In addition, Mrs. Rion owned a 1967 Cadillac and $17,000 in cash (her inheritance from her late husband.)

At the time of the divorce in 1980, the husband’s yearly income was approximately $115,000, including salary, interest and dividend income, and fringe benefits. His net worth was in excess of $500,000.

At the time of the divorce, Mrs. Rion’s only income was $234 per month in social security benefits. She owns a 1975 Lincoln automobile as well as additional jewelry given to her by Mr. Rion which has a replacement value of $65,225.

The court awarded Mrs. Rion $800 per month permanent alimony, but provided that in the event of the husband’s retirement at the age of sixty-five (or earlier if medically disabled), this sum would be reduced in direct proportion to the reduction in the husband’s earned income. We believe the court erred in making this alimony award automatically subject to reduction based solely on Mr. Rion’s salary. Wilbur v. Wilbur, 399 So.2d 47 (Fla. 5th DCA 1981); Kirchman v. Kirchman, 389 So.2d 327 (Fla. 5th DCA 1980); see also Evans v. Evans, 398 So.2d 943 (Fla. 3d DCA 1981); DeVito v. DeVito, 393 So.2d 1189 (Fla. 3d DCA 1981). Merely because future retirement and pension benefits are known does not make this automatic reduction in alimony proper. The alimony reduction based solely on the earned income upon retirement fails to consider the amount of other items of income such as directors fees, dividends and other income.

We also fail to understand how the court arrived at the $800 per month permanent alimony. As stated in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980):

Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds. The criteria to be used in establishing this need include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates.

Id. at 1201-1202.

We agree that Mrs. Rion should receive permanent alimony under this standard. She testified to needs of $3,000 per month. While the court may have concluded this figure was inflated, we conclude that the trial judge abused his discretion in reducing it to the level that he did. Mrs. Rion has little earning ability. While Mr. Rion concedes that she was helpful to him in entertaining business customers, nothing she did during the marriage equips her to support herself. During the marriage, the parties enjoyed a very comfortable life style, bordering on the luxurious. They resided in a fine home on a river-front lot and the grounds were maintained by employees from Mr. Rion’s business. They employed a maid. Mrs. Rion had the unrestricted use of numerous charge accounts. They maintained memberships in yacht and country clubs and enjoyed boating in Mr. Rion’s thirty-five foot cabin cruiser. The parties also traveled considerably, on business and pleasure, always going “first class.” At the time of the divorce, the parties had been married for ten years. Mr. Rion was sixty-one years old and Mrs. Rion was sixty-two years old. Mrs. Rion is in fairly good health.

We believe that in light of the disparity between the parties income and assets, and considering the standard of living established during the marriage, the trial judge abused his discretion in making the award that he did. See Cowan v. Cowan, 389 So.2d 1187 (Fla. 5th DCA 1980). This matter must be remanded to the trial court for reconsideration of the permanent alimony award in light of the factors enunciated above.

Mrs. Rion also contends that the court should have granted her lump sum alimony. We do not agree. Most of the assets in Mr. Rion’s estate were owned by him at the time of the marriage. The increase in the value of his estate is represented principally by an appreciation in the value of those assets.

During the marriage, Mr. Rion established various joint savings and checking accounts with his wife and these accounts are subject to the Florida Supreme Court’s rules enunciated in Ball v. Ball, 335 So.2d 5 (Fla.1976). The record does not show that these funds and assets came from Mr. Rion’s salary alone. He testified he spent most of his salary to pay bills. He also testified he intended no gift to Mrs. Rion in these assets generally, and she never wrote any checks on these accounts or exercised any ownership or control over them. There was no evidence to counter this testimony in general, except with regard to one account discussed below. Therefore, the lower court correctly denied the wife an interest in these assets.

However, applying Ball v. Ball to savings account number 20293 in First Federal Savings and Loan Association of Putnam County, we find the court erred in failing to award Mrs. Rion one-half of the balance of the account as it stood, in April of 1980, just prior to the parties’ separation. The record shows twenty-three thousand dollars ($23,-000) of the forty-three thousand eight hundred forty-five dollars ,p,nd twenty-six cents ($43,845.26) represented the sale proceeds of real estate owned by the parties as tenants by the entirety. Mr. Rion testified that he and Mrs. Rion owned the lots equally, and with regard to that savings account, he testified she had an interest in it. Therefore, one-half of the account should have been awarded to the wife as her property. The balance of this account would have been seventy-eight thousand one hundred nine dollars and eighty-one cents ($78,-109.81), but for some unauthorized withdrawals by a third party. Therefore, the judgment should be modified to award the wife thirty-nine thousand fifty-four dollars and ninety cents ($39,054.90).

In summary, we reverse the judgment as to the amount of permanent alimony and remand for reconsideration of the award. We also reverse the provision as to an automatic reduction of alimony.

We modify the judgment and award Mrs. Rion $39,054.90 (her share of savings account number 20293) together with any earnings on said share since entry of the judgment. In all other respects the judgment is affirmed.

AFFIRMED in part, REVERSED and REMANDED in part.

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


source: Caselaw Access Project

author: PER CURIAM. COWART, Judge, SHARP, Judge,

license: Public Domain

text:
    Carole M. HUGHES, Appellant, v. Robert W. HUGHES, Appellee.
    No. 81-1482.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1982.
    Rehearing Denied Nov. 9, 1982.
    Donna Wilhelm-Hudson, Oviedo, and Marcia K. Lippincott, Orlando, for appellant.
    Charlene D. Kelley, of Baldwin & Dikeou, Fern Park, for appellee.
   PER CURIAM.

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., affirms.

COWART, J., concurs specially with opinion.

SHARP, J., dissents with opinion.

COWART, Judge,

concurring specially:

I concur with an affirmance in this case for the reason stated in the dissent in Peak v. Peak, 411 So.2d 325 (Fla. 5th DCA 1982), which was that until appellate courts act to provide a much needed guideline for setting child support, the rule of reasonableness stated in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), should be liberally applied to uphold trial court awards of child support. Peak and this case illustrate the point of the dissent in Peak. Peak had a net weekly income of about $250, the trial judge awarded total child support of $50 per week, or 20% of the non-custodial parent’s net income, for two children and the appellate court in Peak reversed that award as being inadequate. Here, Hughes nets weekly about $540, the trial judge awarded total child support of $108.14 per week, or 20% of the non-custodial parent’s net income, for three children and the appellate court affirms. If children are entitled to a standard of living in keeping with their parents’ disposable income, their fair share should be expressed as a percent of such income. Within certain outer limits, a fair share for one child is about 20% of the parents’ spendable income; for two children in the same household about 32%; and for three children in the same household about 40%. However, until a clear standard is adopted, each trial judge must necessarily award child support by subjectively selecting the factors he thinks relevant and giving each factor the weight that he believes it deserves. This necessarily involves trial court conclusions based on inductive reasoning with resulting wide disparity and inconsistency on review by appellate judges who subjectively react to the trial court award according to their own particular experience, knowledge and notions, varying with each appellate court panel. On the other hand, equal application of the law can and will result only from the greater precision involved in reviewing trial court adherence to a definite standard or guideline, based on specific, uniformily weighed, objective criteria (relevant factors). This guideline can then act as an authoritarian major premise (a rule of law) directing, within narrow limits, more consistent conclusions.

SHARP, Judge,

dissenting.

I dissent in this case for the reasons stated in the majority opinion in Peak v. Peak, 411 So.2d 325 (Fla. 5th DCA 1982). Here, as in Peak, the sufficiency of the child support award was the primary issue on appeal. In this case, the trial court determined the appellant/wife had shown a change of circumstances in that the needs of the three minor children had substantially increased since the original dissolution seven years earlier. Moreover, the appel-lee/husband’s ability to pay additional child support had also increased. The record showed he presently earns a yearly salary of forty-one thousand five hundred forty-five dollars ($41,545) in comparison with his salary of eighteen thousand dollars ($18,-000) at the time of the dissolution.

The parties both agreed at oral argument, that if this court does not consider any of the appellee’s additional, voluntary payments he claims to make for his three children, the five hundred ninetéen dollars ($519) per month that the appellee must pay under the appealed, modified judgment, is substantially below the support guidelines for dissolution cases worked out on an informal basis for Seminole, Brevard, Osceola and Orange Counties.

In this case, as in Peak, the trial judge did not make any findings to justify his low child support award, and in examining this record, I am unable to find any basis for it. The appellant/wife is working full-time as a teacher, earning an annual salary of fifteen thousand six hundred eighty-seven dollars and eighty-eight cents ($15,687.88). But her expenses of running her household and educating the three children result in a monthly deficit of eight hundred dollars ($800). She has not remarried and she is presently unable to adequately maintain her home, purchase new furnishings, pay the children’s tuition, and purchase adequate clothing for the three children.

Appellant’s financial situation is made more difficult because the three children are attending St. Lukes, a private day school, which they have attended since their pre-school days. Appellee has never objected to this arrangement, and it has become a basic part of the family’s lifestyle. Neither the fact that the wife is earning fifteen thousand dollars ($15,000) a year, nor that the children are attending a private school appear to me to be a sufficient basis to reduce appellee’s child support obligation below the average or expected norm. I would increase the amount of total child support awarded to at least seven hundred dollars ($700), the smallest amount due under any of the guidelines, (exclusive of the fifty-four dollar ($54) insurance obligation). This constitutes a figure close to appellant’s eight hundred dollar ($800) monthly deficit shown on her financial affidavit, which apparently was not substantially controverted.

      . The trial court’s modified judgment requires the appellee to pay one hundred fifty-five dollars ($155) per month per child. Added to this is fifty-four dollars ($54) per month for insurance premiums. Thus, $155 X 3 children + $54 monthly insurance premiums = $519 per month.

      . Assuming appellee’s gross wages are $42,000 per year, and $766.73 per week, his net weekly income (the gross less income tax and social security liability prorated on a weekly basis) would be $518.84, for purposes of applying the Orange County guidelines (which are also used in Osceola County and by some judges in Seminole County). That guideline sets 40% of net income for three or more dependents. As applied to this case, appellee should be paying $207.54 per week for the three children, or $941.93 monthly.
      The guidelines in use for the Eighteenth Judicial Circuit are more complicated to apply. If the insurance premiums are not subtracted from appellee’s gross weekly income, in arriving at his net income (it is not clear in this case whether they should be), the child support payment due would result in $941.93 per month, the same as the Orange County guidelines. However, if the insurance premiums are initially subtracted, the appellee’s monthly child support payments would be $937.65, exclusive of the insurance payments. This payment may be reduced up to 25% if the non-custodial parent directly provides one-half or more of the cost of housing the children. Giving appellee the maximum credence under this reduction, his minimum payment would be approximately $706.50.


author: STONE, BARRY J., Associate Judge. LETTS, Chief Judge, ANSTEAD, Judge,

text:
    Wayne Kittredge NEWBERRY, Appellant, v. STATE of Florida, Appellee.
    No. 80-731.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 1982.
    Rehearing Denied Dec. 8, 1982.

      Charles H. Vaughan, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   STONE, BARRY J., Associate Judge.

The defendant appeals from an order denying a motion to suppress evidence arising out of a search and seizure. Appellant contends that the search was based upon an allegedly faulty and constitutionally defective affidavit, and that the court allowed evidence to be admitted which was obtained as a result of an allegedly illegal entry in violation of appellant’s rights under the fourth amendment of the U.S. Constitution. The appellant further contends that the trial court erred in not abiding by the terms of a plea conference agreement regarding the sentence to be imposed, and by not sentencing defendant under the youthful offender statute in effect at the time.

The evidence shows that the investigating officer believed that the residence in question had been used for narcotics smuggling on a previous occasion. The officer, relying on information furnished by a confidential informant, commenced a visual surveillance, in daylight, of the rear of appellant’s residence from a location across a canal. The defendant’s vessel had been under observation during the day proceeding along the intracoastal waterway. The surveillance then continued into the nighttime hours with no unusual occurrences until, at approximately 1:00 a.m., the lights of the residence were extinguished. At that time the officer commenced viewing the yard of the premises through a nightscope from a point some 300 feet from the rear yard in question.

A nightscope is used in the manner of a telescope, or binoculars, and enables the observer to penetrate the darkness, viewing the area and the subjects in a green lumination. Using this scope the officer observed individuals proceeding back and forth between the residence and the vessel carrying bales that appeared to be wrapped in burlap, which the officer believed contained marijuana, being off loaded from the boat to the premises. The officer further was able to determine that the defendants in question were wearing dark clothing and that no lights were being used.

The officer then proceeded directly, in spite of the early morning hours, to secure a search warrant for the premises. The officer did not advise the judge that the information contained in the affidavit was obtained through the use of a nightscope.

At the hearing there was disputed testimony as to the method by which the search was implemented. The State’s witnesses testified that the entry was pursuant to the knock and announce procedures provided for in Section 933.09 of the Florida Statutes. The court found that the search warrant had been properly executed.

Following the court’s ruling on the motion to suppress, a change in plea was entered and accepted, preserving the right to appeal on the foregoing issues, based upon a “plea bargain”. The appellant changed his plea upon the understanding that following a pre-sentence investigation he would be sentenced to a “cap” of five years. It is the contention of appellant that the plea colloquy reflects no indication that he would be subjected to any combination of imprisonment and probation in excess of the five year cap. In fact, the court imposed a sentence, following pre-sentence investigation, of five years in the state penitentiary followed by five years of probation. Further, at the time of sentencing the appellant was nineteen years old and had no prior record of arrest or conviction. Although the appellant did qualify for treatment as a youthful offender, the lower court was of the opinion that youthful offender sentencing was not mandatory under the statute applicable prior to its amendment, and sentenced the appellant as an adult.

With respect to this sentencing, the trial judge, having accepted a plea bargain, may not subsequently substantially alter that agreement. Johnson v. State, 332 So.2d 362 (Fla. 1st DCA 1976); Odom v. State, 310 So.2d 770 (Fla. 2d DCA 1975); Severino v. State, 286 So.2d 234 (Fla. 2d DCA 1973). Therefore, with respect to the issue of the length of the sentence, we hereby reverse and remand with directions to the trial court to either modify and amend the sentence or, in the alternative, to grant the defendant the option of withdrawing the change in plea and reinstitut-ing the plea of not guilty. See Davis v. State, 308 So.2d 27 (Fla.1975) and Carmo v. State, 378 So.2d 850 (Fla. 4th DCA 1979).

The record further reflects that the appellant qualifies under the mandatory language of section 958.04(2), Florida Statutes (1979) as a youthful offender under the wording of the statute prior to its amendment. By the use of the word “shall” the legislature made the application of the statute mandatory, in cases prior to its amendment and, therefore, we direct the trial court, upon resentencing in this cause, to apply the Youthful Offender Act. See State v. Goodson, 403 So.2d 1337 (Fla.1981); Warren v. State, 391 So.2d 775 (Fla. 4th DCA 1980).

The trial court found that the police, in the execution of the search warrant, complied with section 933.09, Florida Statutes. This finding of fact was supported by testimony and evidence that the police officers knocked loudly on the door, announced their identity and purpose, knocked once again and announced again before breaking a window. The officer testified that he did not put his gun inside the window, but that when someone yelled from inside that they were coming to the door the officers waited until the door was opened, at which time they entered. Although there was testimony by the defendant to contradict the state’s witnesses, the trial judge after hearing all of the testimony announced his findings which are supported by the record and are, therefore, affirmed. Brown v. State, 380 So.2d 570 (Fla. 4th DCA 1980); State v. Dominguez, 367 So.2d 651 (Fla. 2d DCA 1979); Johnson v. State, 157 Fla. 685, 27 So.2d 276 (1946).

Finally, with respect to the search and seizure issue, appellant challenges the validity of the search warrant. Appellant contends that the facts in the affidavit were disclosed during an unlawful search by the use of a nightscope, without a warrant having first been obtained for its use, invading the rear yard area in which the defendants claim an expectation of privacy. Appellant further contends that the viewing was from private property upon which the appellant presumes the officer was trespassing in the absence of evidence that the owner of the property granted permission for its use as a surveillance point.

We hold that the trial court did not err in denying the motion to suppress. The use of the nightscope as an aid in the surveillance by the law enforcement officer, under the facts of this case, did not constitute an impermissible invasion of defendant’s reasonable expectation of privacy, did not constitute an unlawful search and did not violate defendant’s fourth amendment rights.

We find that the use of a night-scope, under the conditions set forth in the above statement of facts, does not constitute a “search” within the intent of those cases that require a warrant before a search using electronic or other artificial devices may be constitutionally permissible. See Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA 1978) and Lovely v. State, 351 So.2d 1114 (Fla. 4th DCA 1977). See also Marshall v. United States, 422 F.2d 185 (5th Cir.1970) and State v. Daniel, 319 So.2d 582 (Fla. 4th DCA 1975).

It is unreasonable to expect law enforcement officials not to take advantage of modern technology, and tools that are in common usage, in the ordinary course of the performance of their duties. Observations made by police with the use of binoculars, flashlights, and similar aids have been recognized as constitutionally permissible without a warrant. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed.2d 1202 (1927); United States v. Minton, 488 F.2d 37 (4th Cir.1973); United States v. Loundmannz, 472 F.2d 1376 (D.C.Cir.1972); United States v. Grimes, 426 F.2d 706 (5th Cir.1970); Marshall v. United States, 422 F.2d 185 (5th Cir.1970); Fullbright v. United States, 392 F.2d 432 (10th Cir.1968); Albo v. State, 379 So.2d 648 (Fla.1980); McDougall v. State, 316 So.2d 624 (Fla. 4th DCA 1975). See also, State v. Elbertson, 340 So.2d 1250 (Fla. 3d DCA 1976); and Gianetta v. State, 296 So.2d 654 (Fla. 2d DCA 1974).

The defendant relies on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and United States v. Kim, 415 F.Supp. 1252 (D.C.Hawaii 1976). However, these cases are clearly factually distingishable. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” Katz v. United States, supra.

We hold that where a defendant conducts himself in the manner described above, in an area where the defendant does not have a reasonable expectation of privacy, the mere fact that night falls, and the defendant performs his illegal activities under cover of darkness, does not grant a shield to the defendant. There is no license to engage in criminal activity with impunity after sunset in an open area that would not be so protected after sunrise. Nor does a defendant engaged in criminal activities have carte blanche to operate under the umbrella of darkness merely because the observations of a crime, otherwise open to view, were made with the aid of the particular scope device used here rather than some other visual aid, such as a flashlight or floodlight. Persons conducting criminal activities in the open at night assume the risk that they may be so observed, whether by police or others.

In reaching our decision this court is not unmindful of the case of State v. Barnes, 390 So.2d 1243 (Fla. 1st DCA 1980), and of the recent case of State v. Rickard, 420 So.2d 303 (Fla.1982). In Barnes, the police, although having ample opportunity to do so, did not obtain a search warrant. Further, in that case there were no exigencies preventing the officer from obtaining a warrant for the use of the high-powered telescope necessary to view the offending marijuana plant. However, the officer in the instant case had no way of determining in advance which of numerous available tools might be required for his use in conducting the surveillance, which began in daylight hours and which only required the use of the nightscope once the artificial lighting was extinguished. Once the officer arrived at the decision that a nightscope was needed, it would obviously be absurd to forbid him its use while the criminal activity was in progress until he sought and obtained a warrant to be utilized long after such activity had been completed.

Our holding is consistent with the recent decision of State v. Rickard, supra. In the case before us there was no seizure until after the warrant was obtained by the officer and, here, the defendant had not taken the clear steps evidencing a reasonable expectation of privacy such as those that were expressly found in Rickard. The court, in State v. Rickard, supra was quite specific in reasoning that the defendant in that case had taken clear steps to conceal the area from view, thereby distinguishing the illegal search in that case from the legal search in Lightfoot v. State, supra. Similarly, in State v. Brady, 406 So.2d 1093 (Fla.1981), the court went to great lengths to emphasize the factual support for their holding. In both of these cases the Supreme Court recognized and anticipated the factual distinctions that must be made in each case with respect to the extent to which the specific facts support a protected expectation of privacy. It is significant that in this case the acts, taking place in an open yard, could be freely observed from yards across the canal and by traffic on the canal in daylight or with’ artificial light. There, therefore, was no impermissible “search,” and no unreasonable governmental intrusion, into the defendant’s constitutionally protected privacy prior to obtaining the warrant by the officer. Further, whatever expectation of privacy defendant may have had, by virtue of the fact that the yard was dark, is not one that society is prepared to recognize as reasonable under the facts of this case.

Appellant further contends that the warrant was defective inasmuch as the affidavit did not mention the use of the nightscope. However, there is no requirement that an affidavit in support of a warrant contain all facts that might have been mentioned, since such facts can subsequently be the subject of testimony at the hearing on the motion to dismiss. Hunter v. State, 375 So.2d 1152 (Fla. 2d DCA 1979).

And finally, the defendant contends that the state had the burden to establish that the police officer had a legal right to be in the location from which the observations were made and that, therefore, in accordance with Neary v. State, 384 So.2d 881 (Fla.1980), the motion to suppress should have been granted. However, we find that there is no basis in the record of this case from which to determine that the officer was in fact trespassing and, in any event, we find that the defendant has no standing to raise this issue. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). Similarly, State v. Morsman, 394 So.2d 408 (Fla.1981), is not applicable here as that case involved a warrantless trespass on the defendant’s property.

Accordingly, we affirm the trial court’s order denying the motion to suppress. The trial court, however, is directed to vacate the sentence. The cause is remanded to the trial court with directions to impose a sentence in accordance with the plea bargain and in accordance with the Youthful Offender Act.

LETTS, C.J., concurs specially with opinion.

ANSTEAD, J., dissents with opinion.

LETTS, Chief Judge,

specially concurring:

The two cases cited in Judge Anstead’s dissent involve situations where the police failed to get a warrant. In the case before us now, a warrant was in fact obtained. Moreover, this very Court has impliedly upheld the use of a night scope. See State v. Trepany, 409 So.2d 529 (Fla. 4th DCA 1982).

Similarly the Fifth District, citing numerous federal cases as well as the Florida Supreme Court, has upheld the use of binoculars. Bernstiel v. State, 416 So.2d 827 (Fla. 5th DCA 1982). Even State v. Barnes, 390 So.2d 1243 (Fla. 1st DCA 1980) does not appear to ban binoculars, but rather attacks the use of sophisticated devices such as a high powered telescope.

ANSTEAD, Judge,

dissenting:

I dissent to the views expressed by the majority as to whether appellant had a reasonable expectation of privacy on the authority of State v. Rickard, - So.2d - (Fla. case No. 54,877, opinion filed April 29, 1982) [7 FLW 193] and State v. Barnes, 390 So.2d 1243 (Fla. 1st DCA 1980). In Rickard the Florida Supreme Court indicated that ordinarily people do have a reasonable expectation of privacy in their backyards. And in Barnes the First District indicated that it was unlawful for authorities to use a high-powered telescope to identify objects in a backyard without first securing a warrant. Notwithstanding my views on this issue I would remand the case for rehearing to determine whether or not appellant had standing to assert his privacy claims.


author: DELL, Judge.

text:
    Donna deClaire YOHANAN, Appellant/Cross appellee, v. George F. deCLAIRE, Appellee/Cross appellant.
    Nos. 81-551, 81-819.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 1982.
    Rehearing Denied Nov. 30, 1982.

      James M. Tuthill of Christiansen & Jack-nin, Palm Beach, for appellant/cross appel-lee.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellee/cross appellant.
   DELL, Judge.

Donna deClaire Yohanan, appeals the trial court’s denial of her petition to set aside a final judgment of dissolution for fraud on the court. The petition alleged that appel-lee, George F. deClaire, misled the court by filing a fraudulent financial affidavit executed pursuant to Fla.R.Civ.P. 1.611. Ap-pellee cross-appeals both the granting of the petition for increase of child support payments and the awarding of a cost and fees judgment to the appellant.

The parties were married in 1958 and divorced in 1977. The final judgment of dissolution incorporated by reference a property settlement agreement which, inter alia, limited the appellee’s child support obligations to $100 per child per month. In 1980, appellant filed a petition for increase of child support, citing an increase in both the children’s needs and appellee’s ability to pay. Appellant subsequently amended her petition to include an independent action to set aside the judgment of dissolution for fraud on the court, pursuant to Florida Rule of Civil Procedure 1.540(b), alleging that appellee committed fraud on the court when he filed a Rule 1.611 financial affidavit that materially misrepresented his income, assets, liabilities and net worth to the court.

After a final hearing on appellant’s petition, the trial court entered an order finding that in 1977 appellee fraudulently filed his financial affidavit because it failed to accurately reflect the true facts of his assets and liabilities. Appellee underestimated his net income by approximately $1,775 per month and financial statements submitted to various banks demonstrated a much greater net worth than that shown by appellee’s financial affidavit. Despite the trial court’s disapproval of appellee’s conduct, the trial judge refused to set aside the property settlement agreement. The trial judge found that because appellant had pri- or to the filing of the dissolution co-signed a financial statement which reflected the ap-pellee’s net worth at approximately $500,-000 above that stated in his financial affidavit she either knew or should have known of his true net worth. Appellant and her attorney testified that they thought appel-lee had told the truth in his financial affidavit. The trial court held that appellant had waived her claim to set aside the property settlement agreement because she should have known his true net worth and did not timely contest the property settlement agreement within one year.

The trial court also found that changed circumstances justified an increase in the child support award and entered a cost and fees judgment against the appellee. This appeal and cross appeal followed.

Appellant argues that she had a right to rely on the truthfulness of the appellee’s financial affidavit and that his fraudulent filing constituted fraud upon the court. We agree and reverse the trial court’s refusal to set aside the property settlement agreement. In all other respects, we affirm the orders below.

It is clear that appellant’s independent action to set aside the property settlement agreement was untimely unless the fraud alleged constituted fraud upon the court. Fla.R.Civ.P. 1.540(b); August v. August, 350 So.2d 794 (Fla. 3d DCA 1977). This Court has limited the application of the fraud on the court concept for public policy reasons.

“Fraud on the court” is a somewhat elusive concept. See 7 J. Moore Federal Practice, 1972, ¶¶ 60.33, 60.36, 60.37, and Toscano v. C.I.R., 9 Cir.1971, 441 F.2d 930, 933. If it is given a broad application so as to comprehend any type of misrepresentation by a witness or party which induced an incorrect factual determination by the trier of fact, judgments would be subject to frequent attack by independent actions, and the time for such attacks would be limited only by laches. The policy of the law which favors the termination of litigation suggests that such a broad application of the concept is unwarranted. So too does the policy of Rule 1.540(b), RCP, which promotes non-appellate attacks on a final judgment by motion in the original action — not independent actions.

Alexander v. First National Bank of Titusville, 275 So.2d 272, 274 (Fla. 4th DCA 1973).

Nevertheless, the public policy favoring the termination of litigation must yield in the present case to the public policy favoring the filing of accurate financial affidavits in dissolution actions. The Committee Note to Florida Rule of Civil Procedure 1.611 states that the exchange of financial affidavits “provides a convenient and expeditious method by which the Court and the parties may be told of the financial circumstances of the parties.” The financial affidavits required by Rule 1.611 provide the trial court with a quick and efficient way to assess the dissolution situation. Appellee’s fraudulent affidavit constituted fraud upon the court because a trial court cannot properly determine what to award the parties or whether to approve a property settlement agreement without a true understanding of the parties’ financial condition. Both the trial court and the appellant had an absolute right to rely on the truthfulness of the appellee’s financial affidavit. Appellant cannot be said to have waived any rights by so relying. Therefore, we hold that when a trial court determines a financial affidavit required by Rule 1.611 has been filed fraudulently, as was done in the case sub judice, the offending party has committed fraud on the court and the one year time limit in Florida Rule of Civil Procedure 1.540(b) will not bar an independent action to set aside a final judgment of dissolution.

This opinion should serve notice to both litigants and counsel in dissolution proceedings that financial affidavits filed with the court pursuant to Rule 1.611 must be a truthful representation of the parties’ income, expenses, assets and liabilities. Estimated figures are permissible where reasonable, West v. West, 399 So.2d 428 (Fla. 5th DCA 1981), and every error does not constitute fraud. However, when the evidence demonstrates that affiant constructed the affidavit to intentionally mislead the court and the other spouse, such conduct will not be tolerated simply because neither the opposing party nor the trial court discovered the fraud within one year.

Accordingly, we reverse and remand with instructions to grant appellant’s motion for relief from judgment, to vacate and set aside those portions of the final judgment of dissolution which incorporate the property settlement agreement, and to conduct further proceedings in accord with the principles set forth in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). In all other respects we affirm both the order containing judgment and the amended judgment.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

GLICKSTEIN and WALDEN, JJ., concur.


author: PER CURIAM. SHARP, Judge,

text:
    Max Garland ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 82-414.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 1982.
    Rehearing Denied Nov. 9, 1982.
    Max Garland Roberts, pro se.
    No Appearance for appellee.
   PER CURIAM.

Roberts appeals from the denial of his motion to vacate his judgment and sentence, filed under the authority of Florida Rule of Criminal Procedure 3.850, alleging that his guilty plea was involuntary. The motion shows on its face that an earlier motion challenging the voluntariness of the plea was denied by the trial judge because of lack of evidence to support Roberts’ allegations. The denial was affirmed on appeal. As to this ground, Roberts’ present motion is duplicitous and was properly denied. Doerr v. State, 275 So.2d 592 (Fla. 4th DCA 1973).

The only allegations concerning ineffectiveness of Roberts’ counsel deal with counsel’s pursuit of Roberts’ claim for post-conviction relief and are not proper grounds for setting aside his judgment and sentence.

AFFIRMED.

ORFINGER, C.J., and COWART, J., concur.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I respectfully dissent. Roberts here appeals the lower court’s denial of his pro se 3.850 motion to vacate judgment and sentence. I believe that, for the purpose of showing whether he is entitled to any relief, his motion is not totally insufficient on its face. He alleged both ineffective assistance of counsel, and more particularly, involuntariness of bis guilty plea. Roberts claims he was under the influence of pain killing drugs when he entered his plea, and that his plea was not voluntary due to his diminished mental capacity. See Gunn v. State, 379 So.2d 431 (Fla. 2d DCA 1980). He attached copies of hospital records showing administration of considerable quantities of drugs.

The trial court simply denied Roberts’ motion. It attached no records which conclusively refuted Roberts’ allegations, nor did it show that this petition duplicates a petition filed in 1966. More than one petition for post-conviction relief may be entertained, provided each presents a ground not previously stated. Palmer v. State, 273 So.2d 135 (Fla. 3d DCA 1973). I would reverse and remand for an evidentiary hearing.

      . Fla.R.Crim.P. 3.850.

      . Compare LeDuc v. State, 415 So.2d 721 (Fla.1982), where the trial court denied defendant’s 3.850 motion which alleged ineffective assistance of counsel and involuntariness of guilty plea. Defendant alleged trial counsel coerced him to plead guilty and that counsel failed to accurately relate to him the actual terms of the plea bargain and threatened to leave him without counsel on the day of trial if he did not plead guilty. The Supreme Court reversed and remanded for a hearing on these issues because the motions, files, and record in the case did not conclusively show that defendant was entitled to no relief.


author: CAMPBELL, Judge.

text:
    STATE of Florida, Petitioner, v. Karen L. WHIRLEY, Respondent.
    No. 82-1540.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 1982.
    Rehearing Denied Nov. 9, 1982.
    E.J. Salcines, State Atty., and Claire Cours Jackson, Asst. State Atty., Tampa, for petitioner.
    Judge C. Luckey, Jr., Public Defender, and Lawrence H. Samaha, Asst. Public Defender, Tampa, for respondent.
   CAMPBELL, Judge.

The State of Florida petitions for a writ of common law certiorari to quash a circuit court order requiring a jury trial for respondent, Karen Whirley, in Hillsborough County Court for violation of a municipal ordinance of the City of Tampa. We have jurisdiction pursuant to rule 9.030(b)(2)(B), Florida Rules of Appellate Procedure, and article V, section 4(b)(3), Florida Constitution (1972). 1

A Tampa police officer arrested Whirley on December 30,1980, and charged her with driving under the influence of alcoholic beverages, narcotic drugs, barbiturates, or other stimulants in violation of section 316.-193(1), Florida Statutes (1979), and Tampa City Code, section 39-2(b). On February 12, 1981, her attorney filed a motion for jury trial and on February 23, the assistant state attorney dropped the original charge and charged her with driving with an unlawful blood alcohol level in violation of section 316.193(3), Florida Statutes (1979).

The county judge, finding that Whirley was not entitled to a jury trial, denied the motion, found her guilty as charged, and sentenced her to ten days in the Hillsbor-ough County Jail. Whirley appealed and the circuit judge, citing Smith v. City of Lakeland, 392 So.2d 262 (Fla. 2d DCA 1980), in support, reversed the county court and ordered a jury trial.

We understand that Smith v. City of Lakeland has been construed by some to require a jury trial for a violation of a municipal ordinance even though a jury trial would not be required if the same offense was charged as a violation of a state statute. We take this opportunity to clarify our intent in Smith v. City of Lakeland. There is no constitutional right to a jury trial for violation óf a municipal ordinance, State v. Webb, 335 So.2d 826 (Fla.1976), and Smith v. City of Lakeland does not confer a new and broader right to trial by jury. Although the right to trial by jury was an issue before us in Smith, we were chiefly concerned with Judge Green’s ruling that Smith had waived his right to trial by jury by failing to file a transfer petition pursuant to section 932.61(2), Florida Statutes (1979). That statute allows a person charged with a municipal or county ordinance violation for which no- jury trial is provided to transfer the offense to an appropriate court that could provide a jury trial when the offense also violates state law. In light of the abolition of municipal courts whereby all municipal ordinance violations are tried in county courts, we saw no need to require compliance with this statute to effectuate a right to jury trial, assuming such a right exists in any particular case.

When one is charged with a violation of both a city ordinance and a state statute, one is entitled to a trial by jury only if the penalty imposed removes the offense from the category of petty offenses defined in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). Because the maximum sentence that could be imposed on Whirley for violating section 316.193(3) does not exceed six months in jail and a $500 fine, she is not entitled to a trial by jury. We therefore grant certiorari and quash the decision of the circuit court, hoping that this will lay to rest any further misconceptions regarding our opinion in Smith v. City of Lakeland.

DANAHY and SCHOONOVER, JJ., concur.


author: McCORD, Judge.

text:
    HOUSING BY VOGUE and Liberty Mutual Insurance Company, Appellants, v. Ronald E. CASWELL, Appellee.
    No. AK-120.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1982.
    Rehearing Denied Dee. 1, 1982.

      Steven H. Gray of Green, Simmons, Green, Hightower & Gray, Ocala, for appellants.
    Charles Vocelle of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, Lake City, for appellee.
   McCORD, Judge.

By this appeal the employer/carrier argues that the deputy commissioner erred in modifying the claimant’s previously determined average weekly wage on the basis of a mistake of fact and in implicitly finding that the employer/carrier should provide rehabilitation services to the claimant in the form of a college education.

At the time of the original hearing in this cause held on November 9, 1978, there existed a dispute regarding the claimant’s average weekly wage. Since he had not been employed for thirteen weeks prior to the date of the accident the employer/carrier presented a wage history statement of a “similar employee,” one H.L. Pryor. Accordingly, the deputy adopted Pryor’s average weekly wage of $128 as that of the claimant’s.

Claimant subsequently filed a petition for modification, which resulted in a hearing held on December 2, 1981. At this later hearing, claimant testified that at the previous hearing he did not know who H.L. Pryor was and that he was not aware of what duties Pryor had with the employer. However, as a result of conversations with two former supervisors for the employer, claimant discovered that Pryor was not a similar employee, that he was a work-release prisoner, and that the employer did not afford to Pryor all the advantages of the other employees. Relying upon this information, the deputy found a mistake of fact and modified the claimant’s average weekly wage. We reverse.

Section 440.28, Florida Statutes, which authorizes a petition for modification when there has been a mistake of fact, is not intended to afford the claimant a vehicle to relitigate an identical issue which has been previously determined solely upon an increase in the quantum and probative force of evidence in support of a conclusion contrary to that reached by the prior determination. Hall v. Seaboard Maritime Corp., 104 So.2d 384 (Fla. 1st DCA 1958). In certain specified situations, a petition based upon a mistake of fact may be brought when material evidence which adds something new becomes available after entry of an order, and this evidence could not have been discovered at the time of the original hearing and entry of the earlier order. Hughes v. Denny’s Restaurant, 328 So.2d 830 (Fla.1976). Here, evidence regarding Pryor’s job status could have been discovered at the time of the original hearing. To allow claimant to follow the petition for modification route would only excuse a lack of diligent preparation on his part. Accordingly, the original average weekly wage finding of $128 should be reinstated.

The employer/carrier also urges error in the deputy’s apparent finding that the employer/carrier should provide rehabilitation services to the claimant in the form of a college education:

There is a reasonable probability that with appropriate training or education, claimant whose disability is likely to be permanent may be rehabilitated to the extent that he can increase his earning capacity. It is for the best interest of the claimant to undertake such training or education. Claimant will be rehabilitated by furthering his college education. Because of budget restrictions, the Division (of Workers’ Compensation) will not be required to expend monies for the purpose of assisting this injured employee to obtain appropriate training, education and employment in connection with vocational rehabilitation. Claimant is, however, a proper candidate for temporary total disability compensation during such period as the claimant may be receiving training for education in college. The parties are urged to work this matter out. If they don’t, I will. In the meantime, jurisdiction is retained as to the claim for temporary total disability not to exceed 40 weeks for the claimant while receiving training or education under a rehabilitation program.

This finding regarding the claimant’s rehabilitation prospects vests no rights or corresponding liabilities in either party. Since this aspect of the order is non-final, in that it fails to dispose of all matters ripe for determination between the parties, we conclude that we are without jurisdiction to review this portion of the order. See Special Disability Trust Fund, Dept. of Labor & Employment Security v. Motor and Compressor Co., 417 So.2d 1151 (Fla. 1st DCA 1982). Accordingly, this aspect of the appeal is dismissed without prejudice to review any final order that may be entered on this subject.

REVERSED in part, DISMISSED in part, and REMANDED for further proceedings consistent with this opinion.

BOOTH and WENTWORTH, JJ., concur.

      . § 440.14(1), Fla.Stat.

      . § 440.14(2), Fla.Stat.


author: JORGENSON, Judge. HENDRY, Judge,

text:
    Charles HERMANOWSKI, as general partner on Behalf of AMERICABLE ASSOCIATES, a Florida limited partnership, Appellant, v. NARANJA LAKES CONDOMINIUM NO. FIVE, INC., a Florida non-profit corporation, Appellee.
    No. 81-2133.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Rehearing Denied Dec. 1, 1982.

      Williams, Salomon, Kanner, Damian, Weissler & Brooks and Gary S. Brooks, Miami, for appellant.
    Jeffrey M. Feuer, Miami, for appellee.
    Before HUBBART, C.J., and HENDRY and JORGENSON, JJ.
   JORGENSON, Judge.

Americable, through its general partner Charles Hermanowski, brought an action sounding in quantum meruit for the reasonable value of certain enhanced cable television services provided to Naranja Lakes Condominium. From an adverse judgment below, Americable appeals alleging as error the trial court’s finding that the parties had not reached agreement on the rates for the enhanced services. We conclude that no reversible error has been demonstrated and, consequently, affirm.

Naranja Lakes Condominium Association entered into a written agreement in 1973 with Americable’s predecessor, which provided for cable television service to the Association at a fixed rate for twenty-five years. The contract further provided that:

It is further mutually agreed and understood by both parties that from time to time other ancillary cable television services will become available. As these additional services become available they will be offered to the owner at rates to be agreed upon by both parties.

The trial testimony and the exhibits introduced in evidence during the proceedings below affirmatively demonstrate that no meeting of the minds, with respect to the additional services or rates, ever occurred. Indeed; the record demonstrates that on several occasions, Americable, through Hermanowski, sought board approval for the improvements. None was forthcoming. Hermanowski, by his own testimony, clearly establishes his difficulty in dealing with the Association. This record is devoid of any evidence consistent with the notion that Americable was entitled to rely on anything other than a board resolution. Miller v. Chase & Co., 88 Fla. 500, 102 So. 553 (1924).

A greater burden should be placed on a plaintiff who relies upon an implied contract than on one who uses reasonable care and foresight in protecting himself by means of an express contract. Bromer v. Florida Power & Light Co., 45 So.2d 658 (Fla.1950). Nor will the law imply a contract where a valid one exists. Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (1928). The Association should not be penalized for Americable’s loose dealings. Bromer, supra, at 660. Americable failed to meet its burden of proof, which was that the then-president of the Association had board approval to authorize the improvements or that the Association ever ratified the improvements. Lee v. Melvin, 40 So.2d 837 (Fla.1949); see also 8 Fla.Jur.2d, Business Relationships § 313 (1978). Nor can Ameri-cable claim that the Association had actual or implied knowledge of the improvements since the bulk of the work in upgrading the system was done some distance away from the condominium complex.

Notwithstanding the evident problems with the Association’s board, America-ble completed the improvements in such a way that it was technically unfeasible to restore the Association to its original position. Where the negotiations were unsuccessful, there is no basis for imposing a quasi-contractual liability on the Association. Bullock v. Hardwick, 158 Fla. 834, 838, 30 So.2d 539, 541 (1947); Gould v. American Water Works Service Company, 52 N.J. 226, 245 A.2d 14, 16 (1968); see also Restatement of Restitution § 112.

In Tipper v. Great Lakes Chemical Company, 281 So.2d 10 (Fla.1973), our Supreme Court set forth the law regarding express, implied and quasi-contracts. In so doing, the Court approved the Restatement of Restitution § 112:

A person who without mistake, coercion or request has unconditionally conferred a benefit upon another is not entitled to restitution, except where the benefit was conferred under circumstances making such action necessary for the protection of the interests of the other person or of third persons.

Tipper at 13. That exception is not present here.

Americable officiously conferred the benefits and, in so doing, prevented by its own action restoration of the status quo. In our view, no unjust enrichment occurs on these facts. To hold otherwise would put Americable in the position of being able to enhance cable TV services without any meeting of the minds regarding rates or services and subsequently seek additional payment on a quantum meruit theory.

We have no disagreement with the cases cited by the dissent. We conclude only that they are inapposite since Americable is no more than an officious provider of services never agreed to nor approved of by the Association.

For the reasons expressed herein, the judgment under review is affirmed.

HENDRY, Judge,

dissenting.

I respectfully dissent. The majority’s conclusion that the parties failed to reach an agreement on the rates for enhanced services, which Americable has continued to provide without compensation, in no way precludes Americable from recovering in quantum meruit for the unjust enrichment of the Association. Indeed, the very essence of quantum meruit lies in the failure of the parties to reach an agreement:

Any proof of an express agreement between the parties as to the compensation to be paid for the services rendered would defeat rather than sustain an action based upon quantum meruit....

Solutec Corp. v. Young & Lawrence Associates, Inc., 243 So.2d 605, 606 (Fla. 4th DCA 1971). See also Tipper v. Great Lakes Chemical Co., 281 So.2d 10 (Fla.1973); Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (1928). Failure of the record evidence to demonstrate that a meeting of the minds ever occurred between the parties as to the rates for the additional services thus supports Americable’s position.

To recover under a theory of quantum meruit, a plaintiff must disavow the existence of an express contract, Tobin & Tobin Insurance Agency, Inc. v. Zeskind, 315 So.2d 518 (Fla. 3d DCA 1975); Solutec Corp. v. Young & Lawrence Associates, Inc., supra, and show that the recipient (1) acquiesced in the services, (2) was aware of an expectation of compensation, and (3) was unjustly enriched. See Yeats v. Moody, 128 Fla. 658, 175 So. 719 (1937); Coffee Pot Plaza Partnership v. Arrow Air Conditioning and Refrigeration, Inc., 412 So.2d 883 (Fla. 2d DCA 1982); Nursing Care Services, Inc. v. Dobos, 380 So.2d 516 (Fla. 4th DCA 1980); Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (Fla. 4th DCA), cert. denied, 249 So.2d 36 (Fla.1971). Here, Americable not only disaffirmed the express contract, but has also, in my opinion, satisfied the three requirements necessary to recover under quantum meruit.

The first two requirements that must be shown, that the recipient acquiesced in the services and was aware of an expectation of compensation, are documented by two letters introduced into evidence. One, a letter dated October 16, 1978 from Hermanowski to Norman Bouchard (then-president of the Association), states that beginning in December, 1978, the monthly charge for cable service for the condominium would be increased from $4.00 to $6.00 per unit for the additional channels. Second, a letter from Bouchard to Hermanowski dated December 14, 1978, advises Americable that the rate increase would be held in escrow until ancillary problems with a separate security channel were worked out. By stating that the increase would be withheld pending satisfaction with maintenance problems, the Association acknowledged that there would be a rate increase for the enhanced services. This letter also demonstrates that there was at least implied consent to installation of the additional channels, belying the fact that Americable was an “officious provider of services.” The Association’s contention that such services were unauthorized is without merit in light of this letter clearly indicating that the Association had already initiated collection of the supplemental fees for such services from its members. Furthermore, testimony at trial indicates that the Association had actual or implied knowledge of the improvements since in addition to the off-site upgrading construction involved, access to individual units was required to install special equipment.

The third condition, that the recipient be unjustly enriched, is more than amply demonstrated. All unit owners now receive enhanced cable service, twenty-eight channels compared to twelve, for the same $4.00 per month they have always paid for the basic service.

Where, as here, services are rendered by one person for another and are knowingly and voluntarily accepted, the law presumes that such services are given and received in expectation of being paid for, and will imply a promise to pay what they are reasonably worth. Yeats v. Moody, supra; Variety Children’s Hospital, Inc. v. Vigliotti, 385 So.2d 1052 (Fla. 3d DCA 1980); Tobin & Tobin Insurance Agency, Inc. v. Zeskind, supra; Symon v. J. Rolfe Davis, Inc., supra. Accordingly, on the basis that Americable has demonstrated its entitlement to recover under quantum meruit, I would reverse and remand for a new trial.

      . The benefit conferred is the ability to receive additional channels. There is no evidence of individual unit owners actually using the additional channels.

      . The majority’s statement in footnote 1 that there is no evidence that the individual unit owners are actually using the additional channels is simply not credible in light of human nature and the fact that a number of unit owners, out of a sense of responsibility which demonstrates both their acquiescence in the enhanced service and knowledge of an expectation of compensation, are paying Americable directly for the increase.


author: NESBITT, Judge. SCHWARTZ, Judge

text:
    SUMMIT CHASE CONDOMINIUM ASSOCIATION, INC., a Florida corporation not-for-profit, Appellant, v. PROTEAN INVESTORS, INC., a New York corporation, Melba Investors, Northeast, Inc., a New York corporation, and Bankers Trust Company, a New York corporation, Appellees.
    No. 81-1116.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.

      Horton, Perse & Ginsberg and Arnold Ginsberg and James F. Comander, Miami, for appellant.
    Meyer, Weiss, Rose, Arkin, Shampanier, Ziegler & Barash and S. Harvey Ziegler, Miami Beach, for appellees.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   NESBITT, Judge.

Summit Chase commenced this action in its own right as a condominium unit owner and on behalf of all others similarly situated (comprising some 220 unit owners) as a class action pursuant to Section 718.111(2), Florida Statutes (1977) and Florida Rule of Civil Procedure 1.220(b). The complaint alleged breach of implied warranty and negligence in the construction and installation of the roofs and the mechanical, electrical, and plumbing components of the common elements of the condominium. Compensatory damages in excess of $250,000 were sought.

The action was commenced in May of 1979. The cause became at issue in December of 1979. In August of 1979, the defendants had propounded a set of sixty-one interrogatories, of which each question had multiple parts. Approximately eighteen months later, in March of 1981, the defendants filed a motion to either compel answers to interrogatories or dismiss the action. After hearing, an order compelling answers within fifteen days was entered on March 12, 1981. Simultaneously, plaintiff’s notice of trial was stricken and the parties were given leave to re-notice as discovery was nearing completion.

The plaintiff filed answers to a few of the interrogatories within the fifteen-day period. Attached to the answers was an architectural and structural engineering survey describing the condominium defects and consisting of approximately 140 letter-size pages. Almost all of the interrogatories were indicated as having been answered by reference to the attached engineering survey and damage report. The defendants again moved to dismiss the action with prejudice for failure of the plaintiff to comply with the previous discovery order of court. The motion was granted and the plaintiff’s action was dismissed with prejudice. The order of dismissal assessed a $250 cost judgment in favor of the defendants’ attorneys for their efforts in seeking compliance with discovery.

Plaintiff has appealed the order, contending that the interrogatories were in fact substantially answered. In the alternative, plaintiff argues that even if there was a discovery violation, it did not result in sufficient prejudice to the defendants, nor was it so aggravated, as to justify the severity of the sanction imposed.

We disagree with plaintiff’s contention that the interrogatories were substantially answered. Fla.R.Civ.P. 1.380(a)(3); see State Road Department v. Florida East Coast Railway, 212 So.2d 315 (Fla.3d DCA 1968). Assuming arguendo that the engineering report contained the desired information, it was not presented to the defendants as they were entitled to receive it in accordance with the arrangement of their questions. Florida Rule of Civil Procedure 1.340(e) permits that if insufficient space is provided in the interrogatories, “the answering party may attach additional papers with answers ...,” but it does not authorize leaving a party to ferret and sift through a report to determine whether the requested information is there. Here, at the minimum, the defendants would have been forced to hazard the speculation that the information supplied was actually responsive to their inquiries.

Despite our determination that the answers to interrogatories were inadequate, we agree with plaintiff’s alternative argument that the sanction of dismissal with prejudice was not warranted in this case. Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971). In doing so, we feel compelled to make the following observations.

The openness of modern discovery is recognized to the point where the discovery process is for the most part self-executing. The superintendence of trial judges should be resorted to only with respect to whether information should be disgorged and the sequence or timing of its proliferation. It is inherent in the present rules of discovery that lawyers, out of respect for the adversary system, should make good faith efforts to comply with one another’s reasonable discovery requests without constant recourse to the trial courts. This is especially so when counsel know full well that compliance with discovery is inevitable if sanctions are to be avoided.

In the instant case, it is apparent that had plaintiff’s counsel attempted to promptly cooperate, with his opponent, he might have been successful in merely submitting the engineering report subject to it being supplemented by further interrogatories or other discovery methods. Nonetheless, the fact that plaintiff’s counsel was laggard and slothful does not warrant the visitation of the extreme sanction of dismissal. Santuoso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980). The severity of the sanction must be commensurate with the violation, Turner v. Anderson, 376 So.2d 899 (Fla. 2d DCA 1979), and dismissal of an action should be imposed upon a party only in extreme situations for flev-grant or aggravated cases of disobedience. Travelers Insurance Company v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978).

The visitation of the ultimate sanction was not warranted in this case because of the defendants’ initial delay in moving to compel answers to interrogatories, and because the case had not been finally set for trial. Consequently, the defendants have been unable to make a sufficient showing of prejudice. Santuoso v. McGrath & Associates, Inc., supra; Beaver Crane Service, Inc. v. National Surety Corporation, 373 So.2d 88 (Fla. 3d DCA 1979). On this record, the trial judge should have followed the approved practice of granting the plaintiff an additional opportunity for compliance. Goldstein v. Goldstein, 284 So.2d 225 (Fla. 3d DCA 1973).

We hold that the sanction consisting of the entry of the order of dismissal with prejudice was excessive and an abuse of discretion. The order appealed from is reversed except that portion assessing costs and attorney’s fees against the plaintiff, which is affirmed. Our reversal does not preclude the trial court, on remand, from compelling the plaintiff to more adequately and fully answer the questions propounded and to assess further attorney’s fees and costs in that regard with the full understanding that after a further opportunity to comply, dismissal of the action may become appropriate. Goldstein v. Goldstein, supra.

Affirmed in part and reversed in part, with directions.

SCHWARTZ, Judge

(concurring in part, dissenting in part).

I enthusiastically concur in the reversal of the outright dismissal of the plaintiff’s action. This order is but one of a regrettably long series of circuit court rulings which have effectively distorted the proper role of the discovery and pre-trial process in our system of civil justice. I believe that that function is solely to serve as a means to simplify, facilitate and fairly conduct litigation so that the merits may be more reliably and correctly determined. Instead, these procedures have become ends in themselves, in which missteps which do not prejudice, and in fact bear little or no relation at all to the prosecution or defense of the underlying controversies, nevertheless result in final adverse determinations of those eases. Thus have the priorities become reversed and the dog permitted to swallow his master. Our reversals in this case and in many similar ones in the recent past demonstrate that this court will not allow this process to continue.

For roughly the same reasons that the majority and I agree the action should not have been dismissed, however, I dissent from the affirmance of the cost judgment imposed upon the plaintiff. As I view what happened below, the plaintiff in fact obeyed the only discovery order ever actually entered by the trial court by answering the defendants’ interrogatories within the time provided. The worst that can be said is that it did so in a technically insufficient manner by not placing the information in the expert’s report which conformed to a particular interrogatory in the space provided on the form for that purpose. In other words, all the information was there; it was just not in the right place. Moreover, the record shows that the plaintiff’s attorney offered to cooperate with defendants’ counsel to obviate any difficulties which might arise even out of the asserted irregularity in form. Under these circumstances, I would hold that what amounted to the imposition of a fine, which should be assessed only for a willful and clear-cut violation of an order of court, was unwarranted and a plain abuse of discretion.

      . Thus arises the substantial difference between the majority and the dissent. The latter opines, “[A]ll the information was there; it was just not in the right place.” That statement is pure speculation which could only be reduced to fact, if at all, by a considerable expenditure of time and effort on the part of defense counsel.

      . As the dissent notes, plaintiff’s counsel'did offer to supplement the reports furnished by providing, at a later time, any information not included therein. This supposed courtesy, suggested only after improperly and haphazardly answering the interrogatories and after waiting a year and a half to do so, can hardly be considered a friendly and cooperative way to progress litigation.

      . The dissent would have us replace this “fine” with the remedy of restricting the plaintiffs proof to the extent that discovery violations prejudiced the defendants. This is, in effect, selecting one sanction over another and the dissent’s choice might easily result in a far harsher penalty than the $250 award it feels is unjustified.

      . E.g., Robinson v. Allstate Ins. Co., 417 So.2d 778 (Fla. 3d DCA 1982); Herrell v. Allis-Chalmers Corp., 411 So.2d 306 (Fla. 3d DCA 1982); Techno Industrial Corp. v. Cooper Industries, Inc., 410 So.2d 584 (Fla. 3d DCA 1982); Maqueira v. Almas, 409 So.2d 199 (Fla. 3d DCA 1982); Santuoso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980); Zayres Department Stores v. Fingerhut, 383 So.2d 262 (Fla. 3d DCA 1980); Beaver Crane Service, Inc. v. National Surety Corp., 373 So.2d 88 (Fla. 3d DCA 1979); but see A.H. Robins Co. v. Devereaux, 415 So.2d 30 (Fla. 3d DCA 1982).

      . I think it not insignificant that the subject of the interrogatories was the basis of the plaintiff’s own claim. Thus, if there were any deficiencies in the responses, the obviously, and I think only appropriate remedy would be to restrict the plaintiff’s proof to the extent that . the discovery error prejudiced the appellees’ ability to defend.

      . Of course, defense counsel deliberately eschewed this offer for the good and obvious reason that he did not really wish to receive the discovery requested, much preferring that the action be entirely dismissed for a failure in providing it. See Puga v. Suave Shoe Corp., 417 So.2d 678, 682 n. 15 (Fla. 3d DCA 1982) (en banc); State v. Belien, 379 So.2d 446 (Fla. 3d DCA 1980). We should not permit this kind of maneuver even partially to succeed.

      . In essence, the plaintiff was penalized because it had insufficiently responded to inquiries as to why it was suing the defendants, with the result that the suit itself was dismissed I see no justification whatever in adding injury to injury in this fashion.


author: COBB, Judge. DAUKSCH, Judge,

text:
    PREFERRED RISK LIFE INSURANCE COMPANY, an Iowa corporation, Appellant, v. Carl E. SANDE, individually and as natural guardian of Kimberly Lynn Sande, Appellee.
    No. 81-1083.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 1982.
    Rehearing Denied Nov. 8, 1982.

      Russell K. Dickson, Jr., of Akerman, Sen-terfitt & Eidson, Orlando, for appellant.
    R.K. Roberson of Roberson & Roberson, DeLand, for appellees.
   COBB, Judge.

The issue in this case is whether the trial court erred by allowing recovery under a major medical insurance policy. We hold it did and reverse.

On July 19,1976, Mrs. Marsha Sande took her daughter Kimberly to Dr. George Wiggins for a routine physical. Dr. Wiggins found a urinary tract infection which was confirmed after tests on July 23, 1976. In April 1977, Mrs. Sande again took Kimberly to Dr. Wiggins with a high fever. Dr. Wiggins again found that a urinary tract infection was present, and recommended that Mrs. Sande take her daughter to a urologist for a complete evaluation. Mrs. Sande took her daughter to a specialist on November 22, 1977, complaining of recurrent kidney infections, as well as problem bed wetting. The specialist, Dr. Lankford, admitted Kimberly to the hospital on December 1,1977, where it was found she had a mild urethal stenosis and an ectopic left ureter. This was an anatomical defect which was present at birth, and which was causing her urinary tract infection. This condition was corrected by surgery on January 24, 1978.

On October 6, 1977, appellee, Carl Sande, applied for a major medical expense policy for his family with appellant, Preferred Risk Life Insurance Company. The Preferred Risk agent filled out the application after asking Sande the questions that appeared on it. Of particular importance is question number 7(j), which asked:

Have you, or any person named in question 1, ever had, to the best of your knowledge or belief:
(j) gall bladder, liver, kidney or bladder trouble.

The answer to this is marked “yes” and in the space provided below for explanation, the only mention of any problem in this area is of a kidney infection his wife had in 1972. No mention is made of the problems that Kimberly had or of her visits with Dr. Wiggins.

On January 16,1978, Mrs. Sande completed and signed a claim form for benefits relating to her daughter’s treatment from Dr. Lankford. Initially, Mrs. Sande had left blank question number 5, which asked, “Have you ever been treated for this condition at any time previous to this? If yes, when?” Upon receipt of this, Preferred sent it back and requested the form be completed. Mrs. Sande did so and answered “yes” and added April 15, 1977, as the date of treatment.

Appellant then reviewed the claim and denied it on the basis that the condition was treated previous to the policy, and was therefore excluded. Preferred sent a letter to the Sandes to this effect. The policy was later terminated following no response from the Sandes as to the letter and a failure to pay the required premiums. The Sandes then instituted this litigation to recover under the policy by filing a complaint on March 11, 1980.

Prior to the non-jury trial, depositions of Drs. Wiggins and Lankford were taken. Dr. Wiggins acknowledged seeing Kimberly in July of 1976 and April of 1977, and stated that he informed Mrs. Sande to get a specialist to examine Kimberly, and advised her of the possibility of an anatomic disorder. He stated he felt the disorder for which Kimberly was operated on became symptomatic in 1976, and was recurring since, with the condition being present since birth. Dr. Lankford testified that while other disorders could cause urinary tract infections of the type Kimberly was having, the true cause was the anatomic disorder, and further there was no way of knowing of such a disorder conclusively without the tests he ultimately performed in December of 1977.

At the trial, Mr. Sande testified that he was unaware of Kimberly’s urinary tract infections at the time he applied for the policy, but had answered all the questions asked of him, and stated that all the answers given were recorded by the agent. Mrs. Sande testified that she had never told her husband about the persistent urinary tract infections, and that he would not have been aware of it.

An underwriter for Preferred, William Gates, testified that it was company policy for the agents to ask the questions and fill out the forms, and it was properly done here. He further testified that at the time the policy was approved he was unaware that Kimberly had been treated for urinary tract infections, and that if he had known, the policy would not have been issued in the manner it was. Gates stated that had the company been aware of the condition, they would have issued a specific exclusion rider, which would have excluded the impairment from coverage. He further testified that in a juvenile a recurring urinary tract infection is looked at more closely than in an adult.

Following the hearing, the judge entered final judgment for the Sandes in the total sum of $2,215.66. No explanation for the finding is seen in the judgment itself, but in a letter to counsel, the judge stated that he felt there was not a material misrepresentation in the filling out of the application, and found that the infection was indeed a “covered sickness” within the meaning of the policy, since it was possible that it was caused by more than one illness.

The first issue on appeal is whether Kimberly’s illness is in fact covered by the policy. The policy defines “covered sickness” as: “sickness first manifested while this policy is in force.” Appellant claims the trial court erred since Kimberly’s illness is not covered, as it manifested itself prior to the policy becoming effective and was therefore excluded by the policy terms.

While the Florida courts have never specifically defined what “manifested” means, thé accepted definition seems to center around the symptoms:

That point in time when the sickness or disease becomes symptomatic and not necessarily when the exact nature of sickness or disease is diagnosed by a physician after extensive testing.

McDaniel v. State Farm Mut. Ins. Co., 3 Kan.App.2d 174, 591 P.2d 1094 (1979).

In McDaniel, the insured had the symptoms of the illness some two months before the policy was bought, but it was not actually diagnosed until a month after purchase. The court held that the condition was preexisting, since the symptoms would have led a physician to diagnose the illness; the insured’s unawareness as to the exact cause of the disease was unimportant. The court noted that if the insured had gone for the tests prior to the purchase of the policy, when the symptoms first began, she would have gotten the same diagnosis as she received following the tests.

Florida courts have not dealt with the definition of the word “manifest” as directly as McDaniel. In Continental Casualty v. Gold, 194 So.2d 272 (Fla.1967), the court held that sickness meant a disabling illness, as opposed merely to disease, thereby seemingly prohibiting a disease from being seen here, unless Kimberly was disabled by it. However, the court notes that the insurer may protect itself and limit liability by stipulating in the policy that it did not cover a sickness whose symptoms appear prior to the effective date of the policy. That is exactly what the policy here provides for, so under Continental it would seemingly allow for the insurer to deny recovery. The court in Continental implies that symptoms do equal manifestation; this reading is further supported by a portion of the opinion where the court, discussing the doubt as to when the symptoms began, states: “The jury was presented with conflicting evidence as. to when the condition causing hospitalization first became manifest.” Continental, 194 So.2d at 275.

In Massachusetts Casualty Ins. Co. v. Forman, 516 F.2d 425 (5th Cir.1975), cert. denied, 424 U.S. 914, 96 S.Ct. 1114, 47 L.Ed.2d 319 (1976), the court equated manifestation with when the illness can normally be discoverable by reasonable medical investigation. If it manifests before the policy goes into effect, it is never within the policy coverage. Forman’s force and applicability, however, is lessened by the facts of the case since the disease was clearly diagnosed before the policy provision took effect, whereas in the instant case no diagnosis occurred.

In Daniel v. Orange State Life Ins. Co., 403 So.2d 438 (Fla. 2d DCA 1981), the court reversed a summary judgment granted for the insurance company, holding that the issue of when the illness manifested itself was one for the jury, not for the judge, in light of all the circumstances of the case. Daniel can be distinguished from the instant case. Here, the symptoms that Kimberly suffered were not attributable to a natural cause; the mother was aware of a problem, and had even been advised to seek a specialist’s treatment prior to the issuance of the policy. The fact that Kimberly was treated within the twelve months prior to the policy becoming effective shows a stronger case for its being a pre-existing condition under the policy terms than was the one in Daniel, where no treatment occurred prior to the policy’s effective date.

Here, the trial judge improperly found that the illness had not manifested itself prior to the effective date of the policy. The symptoms were clearly present in Kimberly and a complete diagnosis of the anatomic problem could have been made had Mrs. Sande gone to the specialist prior to the policy date. If she had done so, then clearly it would not have been covered. Her delay in waiting until after the policy was in force should not allow for a recovery.

Denial of recovery on the policy is further warranted due to the appellee’s answers to the questions on the insurance application. In the application, Mr. Sande failed to mention any treatment that Kimberly had for her urinary tract infections, or even the name of the doctor treating her for the recurrent problem. Section 627.409, Florida Statutes (1981), allows for a denial of recovery if the misrepresentation made in a policy is such that the insurer’s conduct would have changed in reliance on it. Bad faith or fraud is not needed to prevent recovery for misrepresentation; it is only necessary that the misrepresentation either be material to the acceptance of the risk or that the insured in good faith would not háve issued the policy in the terms it was issued. There is no need for knowledge of incorrectness and untruth to vitiate the coverage. Life Ins. Co. of Virginia v. Shifflet, 201 So.2d 715 (Fla.1967).

Appellee relies on Justice Irvin’s concurrence in National Standard Life Ins. Co. v. Permenter, 204 So.2d 206 (Fla.1967), to claim that the strict rule of Shifñet should not apply. Under Permenter, to vitiate coverage, an incorrect statement must be one given by the insured in response to a question he understood or reasonably should have understood, or one which reasonably he could be expected to have sufficient information to answer or state he lacked knowledge to give a responsive answer. Permenter, 204 So.2d at 207. The instant facts do not present a case where the language is referring to some special field or asking for an opinion relating to a question that can only be answered by a medical expert; rather, this is a subject where only a straight-forward question was asked, and where no information that was material was given.

Appellee attempts to assert that the materiality of the misrepresentation is a fact question. This is true when there is a dispute as to what was asked by the agent when the policy was issued or the accuracy of the answers on the application itself. Beneby v. Midland Nat’l. Life Ins. Co., 402 So.2d 1193 (Fla. 3d DCA 1981); Travelers Ins. Co. v. Zimmerman, 309 So.2d 569 (Fla. 3d DCA 1975). Mr. Sande acknowledged at trial that the policy application accurately reflected what occurred at his meeting with the agent; therefore, no factual dispute is present. Furthermore, the insurer presented uncontroverted testimony that if it had known of Kimberly’s condition it would not have issued the policy in the form it was issued, but would have placed an exclusionary rider on the policy for her disorder. It is therefore proper to see this misrepresentation as material as a matter of law, law that the trial judge improperly applied by allowing recovery for the appellee. See Minnesota Mutual Life Ins. Co. v. Candelore, 416 So.2d 1149 (Fla. 5th DCA 1982).

It is clear here that a misrepresentation occurred, one that was relied upon by the insurance company in the issuance of the policy; the fact that it was possibly innocently made does not detract from its materiality, and therefore under section 627.409 recovery should have been denied.

Appellee’s claim that the action by the insurance company in denying their claim should be dismissed based upon the incontestability clause is without merit. Incontestability clauses come into effect when the claim of the insurer relates to the validity of the policy, not when it relates only to the limitations of coverage. Home Life Ins. Co. v. Regueira, 313 So.2d 438 (Fla. 2d DCA 1975), cert. denied, 328 So.2d 844 (Fla.1976). Here, there was no attempt by either side to vitiate the policy; rather, the insurance company was only attempting to limit the coverage for this one condition of this one party under the insurance policy. This is not barred by the incontestability clause and the insurance company should be allowed to defend its claim.

The trial court erred by entering judgment for the Sandes. Since the illness had manifested itself prior to the policy being in force, it was therefore excluded from its coverage. Furthermore, the misrepresentations on the policy application were material as a matter of law, and allowed for the denial of recovery under the policy for the child’s illness. Therefore, the judgment is reversed and the cause remanded for entry of judgment in favor of appellant, Preferred Risk Life Insurance Company.

REVERSED AND REMANDED.

COWART, J., concurs.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

The question of the materiality of the alleged misrepresentation is a fact question to be decided upon the basis of all of the evidence before the trier of fact. That issue was decided adverse to the appellant and this court should honor the trial judge’s findings. The majority’s reference to the fact that “the insurer -presented uncontro-verted testimony that ... it would not have issued the policy” rings rather hollow to me. Of course that is the insurer’s position and who could controvert what is in the mind of another? As in all cases involving factual dispute, the “incontrovertible” can be controverted by objective review of all the other facts. Thus one's announced “intent” can be disproved by his actions to the contrary. Even though this court may disagree with the trial judge’s findings we should not supplant them with ours. I would affirm.

      . A majority of the cases recognize that a sickness should be deemed to have its inception at the time it first manifested itself or became active, or when there is a distinct symptom or condition from which one learned in medicine can with reasonable accuracy diagnose the illness. Annot., 94 A.L.R.3d 990, 998 (1979).

      . The provision of the policy in Continental Casualty read as follows:
      Sickness, wherever used in this policy, means sickness or disease contracted and commencing after this policy has been in force for not less than thirty days after its effective date as to the person whose sickness is the basis of claim and resulting in loss covered by this policy.

      . In Daniel, the symptoms were experienced by the insured about one year before the policy was taken out, though she thought that these symptoms were regular and possibly caused by the fact that she had changed jobs and was doing different work. She initially contacted the doctor twelve days after the policy became effective. The doctor performed tests which led to the discovery of a tumor later removed by surgery. This disease was seen by the insurance company as manifesting itself prior to the policy becoming effective, and therefore coverage was denied.

      . Section 627.409 provides in part:
      (1) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
      (a) fraudulent; or
      (b) material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
      (c) the insurer in good faith would either not have issued the policy or contract, or would not have issued it at the same premium rate, or would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.


author: FERGUSON, Judge.

text:
    Bruce HALL, Appellant, v. The STATE of Florida, Appellee.
    No. 79-999.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.
    Rehearing Denied Nov. 22, 1982.
    Bennett H. Brummer, Public Defender and Manuel Vazquez, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox and Paul Mendelson, Asst. Attys. Gen., for appellee.
    Before HENDRY and FERGUSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   FERGUSON, Judge.

Bruce Hall was indicted for first-degree murder and burglary of a building. During the pre-trial hearing on Hall’s motion to suppress confessions, admissions and statements, Hall pled nolo contendere to the lesser charge of third-degree murder and to the burglary charge. He was adjudicated guilty on each count and sentenced to fifteen years for the murder offense and to five years for the burglary offense. Hall now appeals the denial of his motions for an order in limine with respect to statements made by the victim’s husband who died before trial and denial of his motion to suppress his statements.

We are asked to address the merits of the case as to the two issues stipulated by counsel for the State and appellant to be dispositive, Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982) (Case No. 79-1936, opinion filed October 5, 1982) (en banc).

The record indicates that Mr. and Mrs. Whidden, an elderly couple, were in bed when they heard a noise in the living room. Both got out of bed, walked through the hallway into "the kitchen area and heard someone run from the living room out the front door. Mr. Whidden observed only a dark shadow. He subsequently found a tire iron lying on the living room floor. Immediately after the intruder left, Mr. Whidden called his daughter-in-law who in turn called the Laskoskies, neighbors of the Whiddens. Mr. Laskoskie and the Lasko-skie’s son, Brian, went to the Whiddens’ house. About ten minutes later Brian returned to get Mrs. Laskoskie, a registered nurse, because Mrs. Whidden appeared very distraught. When Mrs. Laskoskie arrived at the Whidden residence, Mrs. Whidden was sitting on the sofa in the living room in a very agitated condition. Officer Rakes-traw arrived at the scene a few minutes later, followed by Officer Frazier. While Mrs. Laskoskie attempted to calm Mrs. Whidden, Officer Rakestraw began questioning Mr. Whidden about the intrusion. During this questioning Mrs. Whidden appeared to stop breathing and began to regurgitate. Officer Frazier yelled that Mrs. Whidden’s condition was becoming more serious. Officer Rakestraw grabbed the victim from the sofa, laid her on the floor and started to administer oxygen. A fire rescue team arrived and took Mrs. Whidden to the hospital. She died shortly thereafter.

Appellant is a sixteen-year-old retarded juvenile. The record establishes that he has an I.Q. of 55 and reads at the level of second grade. George Slattery, an experienced polygraph examiner, who pretested the defendant for about two hours, testified that he could not formulate any questions or series of questions which defendant could understand. Nancy Post, a school psychologist, who had interviewed defendant several hours over the past two and one-half years, testified that there is no way he could understand the constitutional rights waiver form even if it were read to him. She classified him as “severely” retarded meaning that he could not function in a regular classroom setting.

It is undisputed that when police officers took defendant away from his home his mother was told only that “Bruce is not being accused of anything” and he was going to the station to look at some photographs. No parent was present when defendant waived his rights and signed a confession which had been stenographically recorded.

Defendant denied involvement in the crime when questioned by the polygraph examiner and at the hearing on the motion to suppress the confession. He testified that he “was scared” when accused and that one of the officers promised to let him go home if he would confess. No effort was made to corroborate the confession with independent evidence. Several alibi witnesses placed Hall at another location on the date and time of the offense.

The facts of this case are practically the same as those in Tennell v. State, 348 So.2d 937 (Fla. 2d DCA 1977), which is relied upon by defendant. The test as to the admissibility of a juvenile’s confession is set out in Tennell, supra at 938, and T.B. v. State, 306 So.2d 183, 185 (Fla. 2d DCA 1975):

In determining the admissibility of a juvenile’s statement the “totality of circumstances” under which it was made must be examined. Gallegos v. Colorado, 1962, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325, 87 A.L.R.2d 614; Am.Jur.2d, Evidence, § 574.
A history of the problem of juvenile confessions is set out in People v. Lara, 1967, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202, cert. den., 1968, 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407.. ..
[A] minor has the capacity to make a voluntary confession, even of capital offenses, without the presence or consent of counsel or other responsible adult, and the admissibility of such a confession depends not on his age alone but on a combination of that factor with such other circumstances as his intelligence, education, experience, and ability to. comprehend the meaning and effect of his statement ....
To these considerations must be added the requirement that, if the statement stems from custodial interrogation, the accused must be given his rights under Miranda and must voluntarily, knowingly and intelligently waive those rights. Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
A juvenile may waive his rights under Miranda but the state bears a heavy burden in establishing that the waiver was intelligently made. Arnold v. State, Fla.App.3rd, 1972, 265 So.2d 64, cert. den., Fla.1973, 272 So.2d 817.

As did the court in Tennell v. State, supra, we hold that on this record the state has not borne its heavy burden of establishing that the waiver was intelligently made. The parties having stipulated that a resolution of either issue in favor of the defendant would entitle him to be discharged, we need not address the second issue.

REVERSED and REMANDED with instruction to discharge the defendant.

      . We are not faced with the problem of ambiguity here since it was stipulated that a ruling on either issue in favor of defendant would result in reversal of the conviction. Cf. Martinez v. State, 420 So.2d 637 (Fla.3d DCA 1982) (Case No. 80-1742, opinion filed October 5, 1982 (remanding for resolution of which issues were stipulated dispositive).

      . Mr. Whidden’s testimony to Officer Rakes-traw was that Mr. Whidden had observed a dark shadow going out of the area that leads to the front door.

      . The officer testified that he called defendant’s mother after Hall had admitted to the burglary and that “she declined” the opportunity to be present for a statement. Mrs. Hall testified that she told the officer she wanted to be present, that he said he would pick her up in thirty minutes, but that he never came.