text:
    Debra Ann ANDRUS v. Honorable Ealon LAMBERT, et al.
    3 Div. 689.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.

      Richard Shinbaum, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard N. Meadows, Asst. Atty. Gen., for appellees.
   BOWEN, Judge.

The plaintiff pled guilty to and was convicted of the second degree murder of Nigel Harlan. The facts of this horrifying murder are reported in the case of her companion. Nolen v. State, 376 So.2d 1145 (Ala.Cr.App.), cert. denied, 376 So.2d 1148 (Ala.1979). Sentence was twenty years’ imprisonment. On May 5, 1981, Andrus was interviewed by two members of the Alabama Board of Pardons and Paroles in order to determine whether she should be granted parole in July of 1981. Parole was denied and on August 20, 1981, Andrus filed a complaint in circuit court alleging that the Board improperly denied her parole and requested that the circuit court issue a writ of mandamus or writ of habeas corpus commanding the Board to either reconsider her for parole or place her on parole. The circuit court denied Andrus’ prayer for relief. She appealed that denial to the Supreme Court of Alabama, which transferred the cause to this court.

In denying Andrus’ prayer for relief, the circuit court issued a written order. This Court fully agrees with and approves of the legal and factual findings of that court. The order is as follows:

“This case is submitted to the Court upon the pleadings, stipulations, memoranda of law and testimony as adduced at trial.... The case seeks relief by mandamus and by habeas corpus.
“The issues presented are as follows: (1) whether the Board of Pardons and Paroles followed the standards mandated by law in denying Plaintiff’s parole; (2) whether the denial of Plaintiff’s parole was the result of arbitrary and capricious action or an abuse of discretion on the part of the Board of Pardons and Paroles.
“The Plaintiff, an inmate in the State penal system, contends that she was denied parole by the Board due to arbitrary and capricious action on the part of the Board. She seeks a Writ of Habeas Corpus mandating her release from confinement, and alternatively, a Writ of Mandamus ordering the Board to grant her parole.
“Defendants contend that Plaintiff received due and proper consideration for parole and as a result of this consideration the Board, acting within its discretion, denied parole to the Plaintiff. Defendants further contend that the Plaintiff has received all due process rights to which she is entitled under law and that the denial of parole was not arbitrary and capricious.
“The standards to be applied in this case are included in Section 15-22-26, Code of Alabama, 1975, which provides in part:
‘No prisoner shall be released on parole merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the board of pardons and paroles is of the opinion that there is reasonable probability that, if such prisoner is released he will live and remain at liberty without violating the law and that his release is not incompatible with the welfare of society.’
“Both issues presented may be resolved by reviewing the applicable standards as enumerated in Section 15-22-26, supra, in conjunction with evidence submitted to this Court. As long as these standards are followed by members of the Board of Pardons and Paroles, actions taken by the Board are not arbitrary and capricious or abusive of discretion.

“Alabama’s legislative standard for parole action has been recently analyzed by Judge Truman Hobbs, United States District Judge, in the case of Johnson [Johnston ] v. Alabama Pardons and Paroles Board, 530 F.Supp. 589 (M.D.Ala.1982). Judge Hobbs succinctly states:

‘The issue of an inmate’s entitlement to the constitutional protections of due process in regard to consideration for parole was addressed by the United States Supreme Court in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1 [99 S.Ct. 2100, 60 L.Ed.2d 668] (1979). The Supreme Court in Greenholtz held that a statutory provision that holds out the mere possibility of parole does not create a liberty interest entitled to the protection of due process. Id. at 11 [99 S.Ct. at 2105-2106]. In that case, however, the Supreme Court found that the unique structure and language of the Nebraska parole statute provided an expectation of parole sufficient to create a liberty interest entitled to constitutional protection. Id. at 12 [99 S.Ct. at 2106]. Since the Supreme Court emphasized the unique structure and language of the Nebraska statute and the need for a case by case analysis of whether other state parole statutes provide a protectible entitlement, the task now before the Court is to compare the features of the Nebraska statute with those of its Alabama counterpart.
‘The Nebraska parole statute requires that the Board of Parole order an eligible prisoner’s release unless it finds one of four specific reasons to deny release. Section 83-1,114(1) of the Nebraska Revised Statutes provides:
‘Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because:
“(a) There is a substantial risk that he will not conform to the conditions of parole;
“(b) His release would depreciate the seriousness of his crime or promote disrespect for the law;
“(c) His release would have a substantially adverse effect on institutional discipline; or
“(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.”
‘The Alabama Parole statutes, on the other hand, are substantially different from the Nebraska statute scrutinized in Greenholtz. Section 15-22-26 of the Alabama Code provides in part:
“No prisoner shall be released on parole merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the board of pardons and paroles is of the opinion that there is reasonable probability that, if such prisoner is released, he will live and remain at liberty without violating the law and that his release is not incompatible with the welfare of society.”
‘In addition, Section 15-22-28(d) of the Alabama Code provides in part:
“No prisoner shall be released on parole except by a majority vote of the board, nor unless the board is satisfied that he will be suitably employed in self-sustaining employment or that he will not become a public charge if so released.”
‘The Alabama statutes dealing with the standards for release of prisoners on parole emphasize a number of subjective factors that must be considered before a prisoner is granted parole. These subjective factors include the probability that the prisoner will not again violate the law, whether the prisoner’s release is not incompatible with the welfare of society, and whether the prisoner will be able to find suitable employment and not become a public charge if released.’ (Emphasis added)
“The Plaintiff insists that board members, Lufkin and Porter, did not indicate in writing that ‘incompatibility with the welfare of society’ was the reason for their denial of the parole. The Plaintiff takes the position that the decision must have therefore been based on improper reasons and standards. The Plaintiff contends that the sole reason for denial of the parole was a letter of objection sent to the board by the Attorney General of the State of Alabama. However, the witnesses from the board testified that Plaintiff’s release on parole would not be compatible with the welfare of society. The Court finds from the evidence that the board gave careful consideration to the parole of the Defendant and that the denial thereof was based upon an evaluation consistent with the aforementioned legislative standard.
“A review of the presentence report, as contained in the record of this inmate, emphasizes the soundness of the denial of parole. On January 3, 1978, Debra Ann An-drus pled guilty to murder and armed robbery and received a twenty year sentence. The crime was especially heinous in nature with Andrus picking up the victim in the Bachelor’s Showboat Lounge in Birmingham, Alabama, for the prearranged purpose of robbing him. Andrus and her male companion drove the victim out in the country, forced him to undress, whereupon the companion, Tony Noland, struck him with a rifle on two occasions — breaking the stock with the first lick and bending the barrel with the second. After the beating, Noland shot the victim in the legs and hand. An-drus and her companion then “rode around” some forty minutes and returned and No-land shot the victim four times in the head.
“The presentence report specifically says: ‘Noland and Andrus then left the scene in Noland’s car (after the first shooting and beating) and drove around for approximately forty minutes. During that time they decided to return to the scene and kill the victim. When they returned the victim was on the ground a few yards from where he had been shot and was yelling for help.
‘Noland then got out of the car with the rifle and went to where the victim was lying on the ground and shot him four times in the head. Noland got back into the car and he and Andrus left the scene and drove to a nearby motel. On the way to the motel they threw the victim’s clothes out on the side of the road. Several hours later, the subject and her companion returned to the scene and covered the victim’s body with leaves and branches.’
“Judge Charles Nice of the Jefferson County Circuit Court in commuting Noland’s sentence from death to life noted, ‘Debra Andrus appeared to be the stronger of the two personalities and that Tony Noland has apparently acted under the substantial domination of Debra Andrus.’
“This Court finds that the Alabama Pardons and Paroles Board acted properly in denying a parole to Debra Andrus. The record shows that this individual has been ‘on work release’ since February, 1980, having worked as a waitress at a local club and at two local restaurants. This Court finds it absolutely incredible that some State administrative agency has decided that it is appropriate for Debra Andrus to be released to work in a club and in restaurants.
“It is CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court as follows:
“1. Judgment be and is hereby rendered in favor of the Defendants on both the Mandamus and the Writ of Habeas Corpus aspects of the case.
“2. All relief requested by the Plaintiff, Debra Ann Andrus, be and the same is hereby DENIED.
“3. Costs of this proceeding be and the same are hereby taxed against Debra Ann Andrus.”

The record does not support a finding that the Board acted in an arbitrary or capricious manner by denying parole to An-drus. Quite the contrary, the evidence reveals that the Board members acted in a conscientious and responsible manner in considering her parole. No evidence whatsoever was presented to substantiate a claim of denial of equal protection.

Furthermore, it is clear that our parole statutes do not create a “liberty interest” entitled to protection under the due process clause of either the U.S. Const. amend. XIV or Ala. Const. art. I, Section 6 (1901). Thomas v. Sellers, 691 F.2d 487 (11th Cir.1982); Johnston v. Alabama Pardon and Parole Board, 530 F.Supp. 589 (M.D.Ala.1982); Gaines v. State, 415 So.2d 1, 2 (Ala.Cr.App.1982).

The right to a parole is a privilege granted by the people of Alabama to those committed to our penal institutions as punishment for crimes. Holley v. State, 397 So.2d 211, 216 (Ala.Cr.App.), cert. denied, 397 So.2d 217 (Ala.1981). Obtaining an early release through parole, like obtaining a pardon, is wholly contingent upon either the grace of the detaining authority or some affirmative statutory entitlement. United States v. Chagra, 669 F.2d 241, 264 (5th Cir.1982). While no constitutional or inherent right of a convicted person to be conditionally released prior to the expiration of a valid sentence exists, Greenholtz v. Nebraska, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979), a prisoner has the right to be properly considered for parole. Christopher v. U.S. Board of Parole, 589 F.2d 924 (7th Cir.1978); Wallace v. Turner, 525 F.Supp. 1072 (S.D.Fla.1981). The paroling authority must comply with constitutional requirements and may not determine parole eligibility on improper grounds. Wallace v. Turner, supra. A parole should not be denied for false, insufficient, or capricious reasons. Christopher, supra.

The facts established that Andrus’ file was reviewed several times before the May 5th parole denial as well as several times thereafter. The evidence also established that the protest filed by the Attorney General was not the sole reason for denying the parole. In fact, although it was given some consideration, it did not outweigh the other factors considered. While neither Lufkin nor Porter marked on the “reason sheet” that the reason for denial of parole was “release would not be compatible with society’s welfare”, their testimony clearly established that their decision to deny An-drus’ parole was based upon such.

We agree with the finding of the trial court that the Board properly considered Andrus for parole and correctly applied the statutes governing such to her case. Under Alabama law, the Pardon and Parole Board is vested with wide discretion in determining parole eligibility. The record convinces us that Andrus received a fair determination of her eligibility for parole. We find no improper or capricious action on the part of the Board. It properly exercised its discretion in denying Andrus parole status.

A review of Andrus’ contentions on appeal reveals no error. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: OVERTON, Justice. BOYD, Justice,

license: Public Domain

text:
    JUDICIAL NOMINATING COMMISSION, NINTH CIRCUIT, Petitioner, v. Robert GRAHAM, as Governor of the State of Florida, and George Firestone, as Secretary of State of the State of Florida, Respondents.
    No. 62513.
    Supreme Court of Florida.
    Order Aug. 31, 1982.
    Opinion Dec. 16, 1982.
    Gregory A. Presnell, as Chairman of and as Counsel for the Ninth Circuit Judicial Nominating Com’n, of Akerman, Senterfitt & Eidson, Orlando, for petitioner.
    Betty J. Steffens, Gen. Counsel to the Governor and Arthur R. Wiedinger, Jr., Asst. Gen. Counsel, Tallahassee, and Jim Smith, Atty. Gen., Walter M. Meginniss, Asst. Atty. Gen. and James V. Antista, Legal Counsel for Dept, of State, Tallahassee, for respondents.
    ALDERMAN, C.J., and ADKINS, OVER-TON, McDonald and EHRLICH, JJ., concur.
    BOYD, J., dissents.
   OVERTON, Justice.

The Ninth Circuit Judicial Nominating Commission seeks a writ of mandamus directing the Honorable Robert Graham, Governor of the State of Florida, to use the merit selection process to fill judicial vacancies which occurred in August, 1982. Granting the writ would necessitate a vacation of the governor’s order calling a special election to fill those vacancies. We have jurisdiction. Art. V, § 3(b)(8), Fla. Const.

The Court considered this cause as an emergency matter, heard oral argument, and on August 31, 1982, issued an order denying the writ. In our order we advised that our reasons for denial would be expressed in a subsequent written opinion.

In considering the Judicial Nominating Commission’s petition for mandamus, we found that the Commission had standing to seek the writ, but determined that the petition should be denied on its merits. We conclude that the constitution mandates an election when there is sufficient time to afford the electorate an opportunity to fill a judicial vacancy.

The facts are uncontroverted. The Honorable Thomas E. Kirkland, Circuit Judge for the Ninth Judicial Circuit, died on August 6, 1982, and the Honorable Richard B. Keating, Circuit Judge for the Ninth Judicial Circuit, died on August 16, 1982. Also on August 16, 1982, the Honorable James Stroker, County Judge for Orange County, created another vacancy by resigning from office effective January 1, 1983, to run for the vacancy in the office of circuit judge created by Judge Kirkland’s death. Governor Graham ordered special elections to fill these vacancies. October 5, 1982, the date of the second primary, was set as the date for the first nonpartisan special judicial election, and November 2, 1982, the date of the general election, was set for the second or runoff nonpartisan judicial election. September 3, 1982, was set as the last day for qualifying for the vacancy created by Judge Kirkland’s death, and September 7, 1982, was set as the last day for qualifying for the vacancies created by Judge Keat-ing’s death and Judge Stroker’s resignation.

The governor, in his response to this petition, challenges the standing of the Ninth Circuit Judicial Nominating Commission to bring this action. A nominating commission is a constitutionally established body, mandated by the constitution to submit the nominations of three persons to the governor within thirty days following a judicial vacancy. See art. V, § 11, Fla. Const. We have expressly held that the nominating commissions are part of the executive branch. In so holding, however, we recognized the constitutional independence of the commissions and the requirement that the fulfillment of the commissions’ duty be free of the governor’s influence. To effect this constitutional intent, we held that the governor may not impose rules of procedure upon the commissions because to do so might destroy the commissions’ “constitutional independence.” See In re Advisory Opinion to the Governor, 276 So.2d 25, 30 (Fla.1973). In that case we concluded that “[w]hile the function of the commissions is inherently executive in nature, the mandate for the commissions comes from the people and the Constitution, not from the Legislature, the Governor, or the Courts.” Id. at 30. We hold that since the nominating commissions are constitutionally created, with independent duties concerning the filling of judicial vacancies, a commission has standing to seek a writ of mandamus to allow the commission to perform its nominating function.

On the merits, the question to be determined requires a construction of article V, sections 11(b) and (c), which provide:

(b) The governor shall fill each vacancy on a circuit court or on a county court by appointing for a term ending on the first Tuesday after the first Monday in January of the year following the next primary and general election, one of not fewer than three persons nominated by the appropriate judicial nominating commission. An election shall be held to fill that judicial office for the term of the office beginning at the end of the appointed term.
(c) The nominations shall be made within thirty days from the occurrence of a vacancy unless the period is extended by the governor for a time not to exceed thirty days. The governor shall make the appointment within sixty days after the nominations have been certified to him.

(Emphasis added.)

These constitutional provisions provide for the use of the merit selection process, but only for a term which ends in January of the year following the next primary and general election. The purpose underlying article V, section 11, is to provide for the election process at the next available primary and general election. In Spector v. Glisson, 305 So.2d 777 (Fla.1974), we held that if a judicial vacancy is known reasonably in advance of an intervening primary and general election, the vacancy must be filled by election. The holding in Glisson was predicated upon the fact that the constitutional provision was intended to have the election process select members of the judiciary if the electorate had adequate knowledge that a vacancy would occur and that candidates could qualify and run during the regularly scheduled primary and general election process. In In re Advisory Opinion to the Governor, Request of September 6, 1974, 301 So.2d 4 (Fla.1974), we advised the governor that he need not call a special election and should utilize the merit selection process when knowledge of a vacancy occurred at or after the time of the first primary election. This conclusion was based on the fact that the timing of the vacancy made it impossible to practically afford the electorate an opportunity to fill the vacancy in the 1974 elections. In that instance, we held that the governor could appoint for a term ending in January, 1977, meaning that the office would be subject to the 1976 election process.

In summary, if the vacancy is known in sufficient time to schedule a special election during the already scheduled primary and general election dates, then a special election should be held. On the other hand, if an irrevocable communication of an impending vacancy is presented to the governor at the time of or after the first primary, then we have held there is insufficient time to use the primary and general election process during that year and the governor is authorized to use the merit selection process for a term ending in January following the general election two years later.

We recognize that this interpretation of article V, section 11, has the practical effect of denying a community a needed judicial position for as long as six months when vacancies can only be filled by the election process. Few, if any, individuals would proceed through the nomination process because of the limited term they would serve, unless they had qualified to run for the vacancy. The end result is that vacancies occurring between July 1 and September 1 of an election year are not ordinarily filled until January 1. We cannot rewrite the constitution, and it is clear that the framers of the constitution intended the election process to be used except “when there is no earlier, reasonably intervening election process available.” 305 So.2d at 784.

To avoid this temporary loss of judicial manpower, as illustrated in the instant case, two suggested remedies were presented by the 1978 Constitutional Revision Commission. The first provided that the merit-selection, merit-retention process now used for appointment of appellate judges would also be used for appointment of trial judges. The second retained the election process for trial judges but provided for the filling of trial court vacancies in the same manner as appellate court vacancies, with the appointment being for a term ending on the first Tuesday after the first Monday in January of the year following the next general election occurring at least one year after the date of appointment. Adding the phrase “occurring at least one year after the date of appointment” would have eliminated the problem that the Ninth Circuit is experiencing in this case.

For the reasons expressed, we find that the governor properly called for special elections for each of the judicial vacancies. The petition for mandamus has been previously denied.

It is so ordered.

ALDERMAN, C.J., and McDONALD and EHRLICH, JJ., concur.

ADKINS, J., concurs in result only.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

Article V, section 11(b) of the Florida Constitution clearly provides that vacancies in the offices of circuit and county judge shall be filled through appointment by the governor. The Court today recognizes an exception to this clear constitutional provision. This misinterpretation will give rise to serious and unnecessary complications for the judiciary. Not only is the governor constitutionally required to fill the vacancies by appointment, he also lacks any authority to call special elections to fill them. I therefore dissent.

Article V, section 11(b) and (c) provides:

(b) The governor shall fill each vacancy on a circuit court or on a county court by appointing for a term ending on the first Tuesday after the first Monday in January of the year following the next primary and general election, one of not fewer than three persons nominated by the appropriate judicial nominating commission. An election shall be held to fill that judicial office for the term of the office beginning at the end of the appointed term.
(c) The nominations shall be made within thirty days from the occurrence of a vacancy unless the period is extended by the governor for a time not to exceed thirty days. The governor shall make the appointment within sixty days after the nominations have been certified to him.

Article V, section 11 reflects a concern for the continuous and orderly functioning of the judiciary. The time limits set for the making of nominations and appointments emphasize the framers’ intent that interruptions due to vacancies be of the minimum possible duration. In keeping with this intent, this Court has allowed vacancies to be filled by election rather than by appointment only when “the effective date of the vacancy coincided with the commencement of the terms of other judicial officers elected during the same elective process.” In re Advisory Opinion to the Governor, 301 So.2d 4, 7 (Fla.1974). See Spector v. Glisson, 305 So.2d 777 (Fla.1974).

Here, of course, the vacancies are not scheduled to occur at the time of the commencement of the terms of other judicial officers and the above criterion is not met. The vacancies have already occurred and should have been filled as quickly as possible by the appointment process.

The effect of the Court’s decision today is to postpone the filling of the vacancies until January of 1983, by which time the judicial offices in question will have been vacant for five months. As the majority opinion acknowledges, even longer vacancies are possible under the Court’s interpretation.

The majority appears to be operating under the mistaken assumption that appointments made now to fill the vacancies would be to terms lasting only until January, 1983. The constitution provides that appointive terms will end on “the first Tuesday after the first Monday in January of the year following the next primary and general election.” Art. V, § 11(b), Fla. Const. The Court believes that “the next primary and general election” means the current elections of October and November, 1982. I believe that the language “next primary and general election” refers to the next election for which individuals can qualify as candidates in the normal course of events. Under my interpretation the next primary and general election will be the elections occurring in the fall of 1984. The constitutional language should not be construed to mean the fall, 1982 elections since at the time this case arose it was already too late for candidates to qualify for the current elections. Therefore I conclude that the appointments which can and should be made now will be for terms ending in January of 1985.

My construction of the words “next primary and general election” better serves the cause of continuity and avoidance of disruption in the judiciary. The appointment process fills vacancies more quickly and avoids the need for calling special elections. Construing the words to refer to the next general election after the forthcoming January ensures the availability of a regular election to fill the office after the term of the interim appointed judge.

Although the constitution provides that an “election shall be held to fill that judicial office for the term of the office beginning at the end of the appointed term,” art. V, § 11(b), it does not contemplate that the election be a special election. The legislature has the authority to determine how elections of judicial officers are to be conducted. In re Advisory Opinion to the Governor, 301 So.2d 4 (Fla.1974). Statutory provisions pertaining to judicial elections are codified in chapter 105, Florida Statutes (1981). There is no provision in that chapter authorizing special elections of judges.

Special elections are provided for only by section 100.101, Florida Statutes (1981), which provides:

A special election or special primary election shall be held in the following cases:
(1) If no person has been elected at a general election to fill an office which was required to be filled by election at such general election.
(2) If a vacancy occurs in the office of state senator or member of the House of Representatives.
(3) If it shall be necessary to elect presidential electors, by reason of the offices of President and Vice President both having become vacant.
(4) If a vacancy occurs in the office of member of the House of Representatives of Congress from Florida.

(5) If a vacancy occurs in nomination. It is clear that this statute does not envision special elections for judges. Section 100.101 should be considered as in pari materia with section 100.141, which the governor and the secretary of state assert grants them the authority to hold special elections in this case. Section 100.141 only applies when a special election is required in order to fill a vacancy in elective office. Since there is no requirement, either in the constitution or in the statutes, that vacancies in judicial offices be filled by special election, section 100.141 is inapplicable.

The majority’s decision will have the effect of requiring special elections whenever judicial vacancies occur between the last day of the qualifying period for the regular elections and the date of the first primary. This holding may result in substantial and unnecessary public expenses in connection with special elections. For example, if a vacancy occurs one day before the first primary, under the majority’s decision, a special election would be required. Because sufficient time would have to be allowed for a qualifying period, it is conceivable that, unlike in the present case, it would be impossible to hold the special election on the same day as the second primary. The special election would have to be held on some other day causing additional expenses. Then there will be questions as to who will bear the additional expenses. The state is required to reimburse the counties for the expenses of special elections held pursuant to section 100.101. § 100.102, Fla.Stat. (1981). The statutes do not specify who is to bear the expenses of holding special elections of judges. I do not view this as an oversight, but rather as further evidence that there is no statutory or constitutional authority for special elections of judges.

Since the vacancies in this case occurred after the qualifying period for the current elections ended, I believe they should be filled by gubernatorial appointment in accordance with the clear language of article V, section 11(b), Florida Constitution. I therefore dissent to the majority decision requiring the vacancies to be filled by special election.

       Proposal, Constitutional Revision Commission: SECTION 11. Vacancies.—
      (a) The governor shall fill each vacancy on the supreme court, on a district court of appeal, on a circuit court, or on a county court by appointing for a term ending on the first Tuesday after the first Monday in January of the year following the next general election occurring at least one year after the date of appointment, one of not fewer than three persons nominated by the appropriate judicial nominating commission.


author: PER CURIAM.

text:
    Coy Junior POLSTON, Appellant, v. STATE of Florida, Appellee.
    No. AE-229.
    District Court of Appeal of Florida, First District.
    July 16, 1982.
    Rehearing Denied Aug. 16, 1982.
    John D. O’Brien, Panama City, for appellant.
    Jim Smith, Atty. Gen., Wallace E. Albrit-ton, Asst. Atty. Gen., for appellee.
   ON PETITION FOR REHEARING

PER CURIAM.

Appellant seeks review of judgments of conviction and sentences entered after the trial court’s denial of appellant’s motion to suppress evidence obtained during a search of his residence. Among other contentions, appellant argues that the search warrant was improperly issued upon an affidavit which was legally inadequate. We agree and hereby reverse the orders appealed.

A warrant to search appellant’s residence was obtained upon an affidavit stating that appellant is a convicted felon and that various firearms had recently been observed within appellant’s residence. However, the affidavit did not state that the residence was in the possession or control of appellant to the exclusion of others, nor negate the possibility that other persons who were not convicted felons might also inhabit appellant’s residence. And the affidavit did not allege any factual predicate which connected appellant and the firearms, other than the mere presence of the firearms in the house which appellant was occupying. Firearms are not contraband per se, and the affidavit in this case does not establish probable cause to believe that appellant’s residence harbored evidence of criminal activity as delineated in § 933.18, Florida Statutes. Cf., Joiner v. State, 339 So.2d 296 (Fla. 1st DCA 1976); Powell v. State, 335 So.2d 304 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 953 (Fla.1977). A search warrant in this case should not have issued, see § 933.18, Florida Statutes, and the trial court should have suppressed the evidence obtained in execution of the warrant. See Art. I, § 12, Fla.Const.

Accordingly, the judgments of conviction and sentences appealed are reversed, and the cause is remanded.

MILLS and WENTWORTH, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge, concur.


author: SHARP, Judge. SHARP, Judge.

text:
    Joe Ed WILSON, Henry Shirer, Donald V. Chapman and Bonnie Heath, Sr., Appellants, v. The SCHOOL BOARD OF MARION COUNTY, Florida, Thomas Olson, Marion County Tax Collector, and Rudy Muckenfuss, Marion County Property Appraiser, Appellees.
    No. 81-635.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 1982.
    On Rehearing Jan. 5, 1983.
    C. Ray Green, Jr., of Greene & Greene, P.A., Jacksonville, and Charles R. Forman of Gill & Forman, Ocala, for appellants.

      Gary C. Simons and Bryce W. Ackerman of Savage, Krim, Simons, & Fuller, P.A., Ocala, for appellee, School Bd. of Marion County.
   SHARP, Judge.

The appellants are taxpayers who reside in Marion County. They filed a class action suit pursuant to section 194.171, Florida Statutes (1981), challenging the validity of a discretionary two (2) mill tax levy imposed by the School Board of Marion County as authorized by subsection 236.25(2), Florida Statutes (1981). They sought to have the levy declared invalid, and asked the circuit court to enjoin the levy, assessment, and collection of the tax because the School Board failed to comply with various notice and levying provisions in the applicable statutes.

After a non-jury trial, the lower court denied appellants any relief because it found that the omitted statutory requirements were directory and not mandatory, and that the School Board substantially complied with them. It further found that the form of the levy, showing the purpose for the 2 mill levy in the School Board’s budget as part of an “unreserved fund balance” in the Capital Improvement Fund, was pursuant to law. For the reasons stated herein, we reverse.

The first five defects listed below concern the way in which the School Board notified the public it was going to consider the tax increase, and the timing and manner of its public meetings held thereafter:

1. Subsection 236.25(2)(c), Florida Statutes (1981), requires that in addition to the notice required by subsection 200.065(3), Florida Statutes (1981), the School Board “shall publish a second notice of intent to levy additional taxes under this section.”

Subsection 200.065(3) says the advertisement

shall be no less than one-quarter page in size of a standard-size or tabloid size newspaper, and the headline in the advertisement shall be in a type no smaller than 18 point. The advertisement shall not be placed in that portion of the newspaper where legal notice and classified advertisements appear.

Subsection (3)(b) dictates the use of a particular specified format if the school district is proposing “a millage rate in excess of 100 percent of the rolled-back rate computed pursuant to subsection (1).... ”

Section 237.081, Florida Statutes (1981), requires that school boards advertise a summary of their tentative budgets, including the proposed millage levies, one time in a newspaper of general circulation. “The advertisement shall appear adjacent to the advertisement required pursuant to s. 200.-065. The board shall hold public hearings to adopt tentative and final budgets pursuant to s. 200.065.”

The School Board failed to publish two notices, and it published its one notice in the wrong place and in the wrong sized print. On or about August 11, 1980, the School Board published a notice of tax increase to be considered at a meeting on August 14. The notice ran next to a summary of the Board’s tentative budget in the Ocala Star Banner. This was printed, however, in the legal notice section on page 9A. The notice was in the format required by subsection 200.065(3)(b), but was in very small print, and it was dramatically smaller than the one-quarter page ad size required by section 200.065(3).

Witnesses for the School Board testified they misread subsection 200.065(3) and thought the large sized ad was not necessary. No one from the general public attended the August 14 School Board meeting. At that meeting the Board voted to make the 2 mill levy a part of its tentative budget.

2. The School Board advertised on January 20, 1981, that it would hold a meeting on January 27 to consider “a series of items which will be published in an agenda seven days prior to the meeting.” This notice was not sufficient to make up for the deficiencies in the first notice, nor did it, itself, comply with the size and format required in subsections 200.065(3) and (3)(b), and if subsection 200.065(2)(a) applied, the meeting should have been held within three days of the notice.

At this meeting the School Board voted to certify the tentative millage to the property appraiser, although the discretionary 2 mill levy was not specifically voted on at that meeting, according to the minutes.

3. On March 3, 1981, the School Board held a public meeting to finalize its budget and tax levies. It passed the discretionary 2 mill levy. There was no notice or advertisement published concerning this meeting, contrary to the requirements of subsections 200.065(2)(f) and 236.25(2)(c).

4. Taxpayers also argue the March 3 meeting was invalid because it was held less than 60 days after the property appraiser prepared the certification of value pursuant to subsection 200.065(1) and section 193.023, Florida Statutes (1981). Subsection 200.-065(2)(f)3 says the public hearing to finalize the budget and adopt the millage rate shall be within 75 days of certification but not sooner than 60 days. School Board witnesses testified the certification process that year in Marion County was delayed for reasons beyond their control, and it was necessary for the finalized budget to be adopted earlier than the 60-day time limit.

5. Taxpayers also argue the March 3 meeting was illegal because it was held in a place other than that specified in section 230.17, Florida Statutes (1981). This section requires that all school board meetings be held in the office of the superintendent or a room nearby designated as the School Board meeting room, unless due public notice has been given that the meeting will be held in another public place.

The meeting on March 3 convened at the School Board meeting room, but had to be moved twice to accomodate the large and unexpected turnout of voters. The crowd was in attendance because some taxpayers had purchased a large ad in the Star Banner stating the School Board was going to increase its property tax levy by 26.75%.

6. The final defect in the levy asserted by appellants concerns the content of the notice, and tentative and final budgets regarding the purpose of the 2 mill levy.

The School Board never specified the project or projects it intended to fund with its discretionary 2 mill levy. In the final budget, the $3,612,754.00 to be raised by the levy was shown as going into an “unreserved fund balance” which totaled $7,794,-992.54, and which was generally labeled “Capital Improvement Fund.” Some $759,-000.00 was to be spent in the 1981-82 budget year, but the funds produced by the levy were not planned to be spent. School Board witnesses testified the funds would have to be used for capital improvement purposes; that the Board had adopted a 5-year building plan pursuant to the state approved plant survey; and the survey showed over $40,000,000.00 in capital improvements were needed in that time span. They testified kthat the time was too short to amend the budget to show specific uses for the 2 mill levy funds.

Section 236.25, which authorizes the discretionary 2 mills, provides not only shall the School Board advertise its intent to levy additional taxes twice, but it further says:

Such notice shall specify the projects or number of school buses anticipated to be funded by such additional taxes and shall be published in the size, within the time periods, and in substantially the format required under s. 200.065(3). (Emphasis added.)

§ 236.25(2)(c), Fla.Stat. (1981).

Section 237.081 further provides, concerning public hearings to adopt tentative and final budgets pursuant to section 200.065:

The hearings shall be primarily for the purpose of hearing requests and complaints from the public regarding the budgets and the proposed tax levies and for explaining the budget and proposed adopted amendments thereto, if any.

The School Board argues that the defects shown in its attempts to follow the statutory procedure are not material, and in any event, that it substantially complied with the basic format and requirements of the statutes. We do not agree there was substantial compliance. However, the judiciary is reluctant to stop the wheels of local government by invalidating tax levies and assessments. Courts are willing to overlook missed steps and failures on behalf of the tax authorities, where the defects do not create basic unfairness and are not mandated by the language or purpose of the statute.

An example is St. Joe Paper Company v. Ray, 172 So.2d 646 (Fla. 1st DCA 1965). The defects asserted there were the tax assessor’s failure to file a schedule of tangible personal property, and the absence of a return. The court said “[u]nless specifically declared otherwise, all the provisions of law relating to assessment and collection of revenue are directory only, designed for the orderly arrangement of records and procedures of officers in enforcing the revenue laws.” Id. at 648.

In Florida East Coast Railway Company v. Reid, 281 So.2d 77 (Fla. 4th DCA 1973), the court considered three defects. Two of the defects, which related to procedure and records, were not sufficient to make the assessment void: the tax assessor failed to follow his manual in setting values, and changes in the tax roll were made after it was certified. However, the third defect— failure to give the challenging taxpayer notice of a large increase in his assessment, as required by the statute — made the assessment void. This failure created a basic unfairness to that taxpayer because it deprived him of his opportunity to pursue administrative remedies in attacking the assessment before the Board of Adjustment.

Whether or not a provision is mandatory or directory, whether almost is going to be good enough, depends on the court’s analysis of the history and subject matter of the statute not complied with. If the provision not complied with was intended for the protection of the taxpayer, or to prevent a sacrifice of his property, courts construe such statutes as requiring strict compliance even though the language used is not particularly mandatory. Examples of this judicial point of view are numerous in Florida’s decisional law. In Jernigan v. Harrison, 136 Fla. 320, 186 So. 511 (1939), the court invalidated a tax deed because a copy of the notice of application for the tax deed was not mailed to the owner’s address. The court said that if the provision omitted was intended to protect the citizen, it is jurisdictional.

Further, when the taxing power is being exercised by a tax authority which does not have inherent power to tax, such as cities and school boards, courts read the statutes granting the tax power strictly. In Certain Lots Upon Which Taxes Are Delinquent v. Town of Monticello, 159 Fla. 134, 31 So.2d 905 (1947), the court read the city’s charter strictly to require passage of a city tax only by ordinance and not by resolution. Similarly, statutes authorizing school boards to assess taxes are strictly construed. Failure to comply with a statute authorizing a levy is generally considered not just an irregularity, but a fatal omission which vitiates the tax.

Prior to the passage of subsection 236.25(2), effective June 30, 1980, school boards could levy the discretionary 2 mills only by resort to obtaining voter approval at a referendum. This statute was designed to make the levy of the 2 mill tax easier for the school boards, but not as easy as the levy of up to 8 mills of tax permitted under subsection 236.25(1). The language used in subsection 236.25(2) relating to the discretionary tax uses “shall,” instead of “will” when it specifies the kind and frequency of notice to be given to the taxpayers. Similarly, subsection 200.065(3) uses “shall” in specifying the unusually large sized advertisement required.

The intent of these provisions is obviously to insure that the School Board’s intent to impose the additional levy is publicized in a LOUD and EYE-CATCHING way. A public throng rather than a public election is intended to take place: Let the elected officials answer directly to the electors. This process was subverted in Marion County in this case, as illustrated by the fact that no one came to the School Board meeting on August 14 when the required notice was published in the wrong place, and in bifocal size.

Defects one through three go to the essence of the statute because they deprived the taxpayers of Marion County of notice of the intended levy and their right to attend the meetings where they could be heard, and the School Board could be called on to explain.

Were only defects four and five involved in this case, we probably would uphold the tax levy, because they were technical and they do not strike at the essence of the process involved in making this extraordinary levy. However, we also think defect six was material. If the School Board only has to say in its notice and in its budgets at its public hearings that it is building up a capital fund for unspecified purposes in the future, the tax-paying public who attends the meetings will have no input because there will be no meaningful dialogue. Although it did not happen in this case, the School Board could play a shell game with the voters, never committing itself to any project, and yet coming up with a different one when one is under attack.

Subsection 236.25(2)(c) also uses the “shall" verb form in stating: “Such notice shall specify the projects or number of school buses anticipated to be funded by such additional taxes.... ” (Emphasis added.) Subsection (2)(a) specifically limits the kinds and types of projects the 2 mill levy may be used for. The inference is clear that the notice and budgets must specify with some certainty the purpose or purposes for which the discretionary tax is needed.

In Street v. Maries County R-I School District of Maries County, 511 S.W.2d 814 (Mo.1974), the court invalidated a referendum vote on a tax levy because it failed to state the purpose of the tax increase. Under Missouri law, the “purpose of the increase” had to be submitted to the voters. The court said:

The voters might be willing to approve a rate increase to provide additional classrooms, but not to construct a gymnasium, and the reason for the requirement that the ‘purpose of the increase’ be submitted to the qualified electors was to give them that choice.

Id. at 816.

Similarly, we conclude the basic intent of subsection 236.25(2) would be subverted and by-passed if the School Board is not required to state in its notice and budgets the specific purposes for which the tax levy is needed. A School Board witness testified at the trial below:

It is much simpler to leave the projects not yet authorized and encumbered by the board in the unreserved balance; and as the superintendent recommends to the Board the next project to do, the Board acts on that and we do a budget amendment from the unreserved fund balance up to the specific project to take care of site purchase, construction, architect fees, equipment and all that.

He admitted the Board could have amended the budget to list the projects. The attorney for appellants then asked:

If you had done that, every single citizen in Marion County would know what their money was going to be spent for when they initially levied the tax, wouldn’t they?

The witness answered: “Right.”

For the reasons stated herein, we reverse the lower court’s judgment, and hold the 2 mill tax levy was illegal and void because the Board failed to act in substantial conformity with the law. Equitable relief would have been appropriate at the time this suit was brought. Under these circumstances the appellant should have sought to expedite this appeal by filing an appropriate motion or by telling the court at oral argument that time was an important factor. The issue of good faith, vel non, was not litigated below, nor were other issues which may be appropriate at this time in determining what relief may now be suitable. We remand this proceeding to the lower court to make these determinations. See Gulesian v. Dade County School Board, 281 So.2d 325 (Fla.1973); Coe v. Broward County, 358 So.2d 214 (Fla. 4th DCA 1978).

REVERSED AND REMANDED.

DAUKSCH and COBB, JJ., concur.

ON MOTION FOR REHEARING

SHARP, Judge.

In its motion for rehearing, the appellees called to our attention the fact that some of the statutes cited in this court’s opinion were changed after 1980, the time when the activities involved in this case took place. We acknowledge our error in citing the 1981 version of some statutes. After reviewing the 1980 versions, however, we reach the same conclusion. In response to the appellees’ motion, we make the following changes in our original opinion:

1. As to point one, we recede from the statement in our opinion that two notices were required. In 1980, section 200.-065(2)(f), Florida Statutes (1980), mandated only one advertisement or notice. An advertisement of the school district’s intent to adopt a tentative budget was required, and section 200.065(3), Florida Statutes (1980), specified that it be at least one-quarter of a newspaper page in size, and not placed in the classified or legal notices section. This basic requirement was breached by the School Board.

2. Regarding point two, the School Board’s notice of January 20, 1981, was not specifically required by any particular statute. We mentioned it in our opinion only for the purpose of showing that it could not have substituted for the notice of advertisement required by section 200.065(2)(f), Florida Statutes (1980), because of its format and size.

3. Regarding point three, an additional advertisement of the hearing to finalize the budget was not required pursuant to the 1980 version of sections 200.065 and 236.25, Florida Statutes (1980).

6. Regarding point six, the 1980 version of section 236.25 did not contain the specific requirement (present in the 1981 version) that the notice of advertisement specifically state what projects will be constructed from the discretionary millage levy. Accordingly, we recede from so much of our opinion as indicated otherwise. However, we adhere to our view that the tentative and final budgets should have specified the projects. Section 200.065(2)(e), Florida Statutes (1980), provided that at the hearing on the tentative budget, the first issue to be covered must be the increase in millage

and the specific purposes for which ad valorem tax revenues are being increased. During such discussion, the governing body shall hear comments regarding the proposed increase and explain the reasons for the proposed increase over the rolled-back rate. The general public shall be allowed to speak and to ask questions prior to adoption of any measure by the governing body. (Emphasis supplied).

§ 200.065(2)(e)(1), Fla.Stat. (1980). The notice of the meeting pursuant to section 200.-065 and a summary of the budget were to be published next to one another. § 237.-081, Fla.Stat. (1980). As pointed out in our opinion, unless the budget was specific about what projects were to be funded, the requirements of the notice, public hearing and hoped-for public discussion would be circumvented for all practical purposes.

Our opinion is revised to the extent noted above, but our conclusion is unchanged.

DAUKSCH and COBB, JJ., concur.

      . Florida Rule of Civil Procedure 1.220.

      . Section 236.25(2)(a), Florida Statutes (1981), provides:
      In addition to the maximum millage levy as provided in subsection (1), each school board may levy up to 2 mills of tax on the nonexempt assessed valuation for the following school purposes:
      1. New construction and remodeling projects, as set forth in s. 235.435(3), without regard to the prioritization in that section, sites and site improvement or expansion to new sites, existing sites, auxiliary facilities, or ancillary facilities.
      2. Maintenance, renovation, and repair of existing school plants. However, these funds shall not supplant current expenditures from operating revenues for maintenance, renovation, and repair, based on the average of the prior 3 fiscal years; and such funds shall be subject to the provisions of s. 4 of chapter 79-583, Laws of Florida.
      3.School bus replacement.

      .This suit was apparently filed before the tax assessment had been certified for collection pursuant to section 193.122, Florida Statutes (1981). Therefore, it was obviously within the 60-day jurisdictional time limit provided by subsection 194.171(2), Florida Statutes (1981). Its prematurity is not jurisdictional. Collins Inv. Co. v. Metropolitan Dade County, 164 So.2d 806 (Fla.1964).

      . Drafters in Tallahassee must be training under writers of the Internal Revenue Code, for indeed this statute is comlex and confusing.

      . § 230.17(2), Fla.Stat. (1981).

      . § 236.25, Fla.Stat. (1981).

      . Cf. Peters v. Meeks, 163 So.2d 753 (Fla.1964) (meeting held one day too early).

      . Schneider v. Gustafson Indus. Inc., 139 So.2d 423 (Fla.1962).

      . See also Wells v. Thomas, 89 So.2d 259 (Fla.1956); Montgomery v. Gipson, 69 So.2d 305 (Fla.1954); Kester v. Bostwick, 153 Fla. 437, 15 So.2d 201 (1943); Steward v. Gadarian, 141 So.2d 289 (Fla. 1st DCA 1962).

      . § 200.191(6) Fla.Stat. (1981): “Millages shall be fixed only by the resolution of the governing body of the taxing authority in the manner specifically provided by general law or by special act;” 79 C.J.S. Schools & School Districts § 398 (1982).

      . Webster’s Grammer: The traditional command form is shall. Webster's New Collegiate Dictionary 1056 (1973 ed.):
      Shall: used in laws, regulations, or directives to express what is mandatory; used to express a command or exhortation.

        . See People ex rel. Meyers v. Chicago & N.W. Ry. C., 1 Ill.2d 255, 115 N.E.2d 339 (1953); People ex rel. Leaf v. Roth, 389 Ill. 287, 59 N.E.2d 643 (1945); 79 C.J.S. Schools & School Districts § 383 (1982).

      . Appellees argue that section 237.131, Florida Statutes (1981), provides that “[N]o irregularities of form or manner in the preparation or adoption of any budget under the provisions of this chapter shall invalidate either the budget adopted or the taxes levied therefor.” (Emphasis added.) However, the 2 mill tax levy involved in this case is not provided for by chapter 237, and it is an extraordinary tax in lieu of a voter referendum.

      . See Dep’t. of Admin. v. Horne, 269 So.2d 659 (Fla.1972); Rio Vista Hotel & Improvement Co. v. Belle Mead Dev. Corp., 132 Fla. 88, 182 So. 417 (1937); Fredericks v. Blake, 382 So.2d 368 (Fla. 3d DCA 1980); City of Coral Springs v. Florida Nat’l Properties, Inc., 340 So.2d 1271 (Fla. 4th DCA 1976).


text:
    Peter URBAN, Appellant, v. Josephine URBAN, a/k/a Jozefina Urbanova, Appellee.
    No. 81-2523.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Rehearing Denied Jan. 10, 1983.

      Koppen & Watkins and R. Daniel Kop-pen, Miami, for appellant.
    James P. Ryan and Harvey Robbins, North Miami, for appellee.
    Before HUBBART, C.J., and BARK-DULL and SCHWARTZ, JJ.
   PER CURIAM.

In 1971, at the age of 60 years, the appellant, a bachelor journeyed to Czechoslovakia and induced the appellee, who was then 36 years of age, to marry him and come to this country. The appellee gave up a well-paying job, sold her condominium apartment, liquidated her assets and was required to reimburse the Communist State for her education before she was permitted to leave Czechoslovakia.

The parties resided in Miami. A dissolution proceeding was commenced in the trial court wherein the wife waived any claim to the residence owned by the husband in which they had resided. Among other things, the final judgment of dissolution awarded the wife $75,000.00 as lum sum alimony, 5 years rehabilitative alimony and an attorney’s fee.

The appellant urges error in these awards, contending that lump sum alimony can only be awarded out of assets accumulated during the marriage, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), and that the period of time for rehabilitative alimony was too long and that the amount of attorney’s fee were excessive. We affirm. Lump sum alimony has been recognized as an appropriate award in this state for many years and may be awarded out of the personal estate of the husband. Yandell v. Yandell, 39 So.2d 554 (Fla.1949); Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980); Nusbaum v. Nusbaum, 386 So.2d 1294 (Fla. 4th DCA 1980); Grobard v. Grobard, 382 So.2d 117 (Fla. 3d DCA 1980). Lump sum alimony may also be awarded to the wife to make an equitable distribution of assets accumulated during the marriage. Canakaris v. Canakaris, supra.

No abuse of discretion has been shown in providing 5 years of rehabilitative alimony. The wife was not fluent in English. An interpreter was required during the hearings in the trial court. She needs to learn the English language and to acquire a skill to enable her to enter the job market at approximately 50 years of age. McLean v. McLean, 384 So.2d 915 (Fla. 3d DCA 1980); Canakaris v. Canakaris, supra; Moses v. Moses, 344 So.2d 1322 (Fla. 2d DCA 1977); Goldberg v. Goldberg, 327 So.2d 828 (Fla. 3d DCA 1976).

The award of attorney’s fee was within the range of the evidence and there has been no error shown in this regard. Krasner v. Krasner, 339 So.2d 674 (Fla. 3d DCA 1976); Flipse v. Flipse, 305 So.2d 16 (Fla. 3d DCA 1974).

Therefore the amended final judgment of dissolution of marriage be and the same is hereby affirmed.

Affirmed.


text:
    Francis C. ARMSTRONG, III, Appellant, v. Julie W. ARMSTRONG, Appellee.
    No. 82-392.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Rehearing Denied Jan. 14, 1983.
    Darrach, Merkin & Sacasas and Rene Sa-casas, Miami, for appellant.
    Maurice Jay Kutner, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

After a childless twelve-year marriage, the trial judge awarded the appellee, wife, who was 37 years of age, the husband’s half-interest in the marital home (title was in the estate by the entireties) as lump sum alimony. This was the only substantial asset of the parties.

We reverse the award of lump sum alimony and reverse the denial of attorney’s fee to the wife. In all other respects we affirm the action of the trial judge. Upon remand, the trial court should reconsider the question of rehabilitative alimony and fix an award of attorney’s fees to the wife for services rendered in the trial court and for services rendered in this court. Goss v. Goss, 400 So.2d 518 (Fla. 4th DCA 1981); Eagan v. Eagan, 392 So.2d 988 (Fla. 5th DCA 1981); Thomas v. Thomas, 377 So.2d 1009 (Fla. 3d DCA 1979).

Reversed in part, affirmed in part and remanded with directions.


text:
    Donald Keith HULSEY, Appellant, v. STATE of Florida, Appellee.
    No. 81-934.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Rehearing Denied Jan. 19, 1983.
    J. Leonard Fleet, Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review of the record we find the evidence sufficient to support the appellant’s conviction of second degree murder. See e.g. Marasa v. State, 394 So.2d 544 (Fla. 5th DCA 1981); Edwards v. State, 302 So.2d 479 (Fla. 3d DCA 1974); Hines v. State, 227 So.2d 334 (Fla. 1st DCA 1969). Accordingly, we affirm the judgment and sentence of the trial court.

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Robert LaMURA, Appellant, v. STATE of Florida, Appellee.
    No. 81-1084.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Rehearing Denied Dec. 16, 1982.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is a companion case to Hulsey v. State, 424 So.2d 24 (Fla. 4th DCA 1982) in which we affirmed a conviction for second degree murder. The appellant, La-Mura, was convicted of manslaughter after a joint trial with Hulsey, the triggerman in the shooting death upon which the homicide charges against Hulsey and LaMura were predicated. There was evidence presented at trial which suggested that the shooting took place as a result of a drug deal gone sour, and that both Hulsey and LaMura were in the process of attempting to forcibly recover the monies they had paid for the illicit drugs when the shooting took place. We believe the evidence of LaMu-ra’s knowledge of and participation in the episode would have been sufficient to support a finding that he was an aider and abettor to second degree murder and, hence, was sufficient to support his conviction of the lesser offense of manslaughter. See e.g. Beasley v. State, 360 So.2d 1275 (Fla. 4th DCA 1978) and Davis v. State, 275 So.2d 575 (Fla. 1st DCA 1973). We also find no error in the trial court denying appellant’s requested instruction because we believe the substance of that instruction was adequately covered by other instructions given to the jury.

Accordingly we affirm the judgment and sentence of the trial court.

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


text:
    George GREENBERG, Appellant, v. Renee B. GREENBERG, Appellee.
    Nos. 81-1204, 81-2135 and 81-2167.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Rehearing Denied Jan. 19, 1983.

      Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for appellant.
    Joel Miller of Miller & Squire, Fort Laud-erdale, for appellee.
   PER CURIAM.

This appeal challenges the trial court’s failure to enforce a property settlement agreement entered into in anticipation of divorce. We conclude that the trial court erred and, accordingly, we reverse in part and affirm in part.

Mr. and Mrs. Greenberg were married in 1948; they separated in 1974. Two years later, in 1976, they entered into a separation agreement dividing their property. The wife filed for divorce in 1979 and subsequently amended her complaint to invalidate the property settlement agreement. After a final hearing, the trial court entered a final judgment of dissolution which acknowledged the existence of the separation agreement and, without invalidating it, proceeded to equitably distribute the parties’ property, granting the wife lump sum and periodic alimony payments plus attorney’s fees. The husband appeals.

To modify or set aside a property settlement agreement, the party seeking such modification must allege and prove fraud, duress, deceit, coercion, or overreaching by the other party. Baker v. Baker, 394 So.2d 465 (Fla. 4th DCA), petition for rehearing denied, 402 So.2d 607 (Fla.1981). As indicated, the trial court made no such finding. Nonetheless, we have independently reviewed the record and note an absence of substantial competent evidence to support such a conclusion. Consequently, we reverse the final judgment of dissolution and remand with instructions to enforce the terms of the property settlement agreement previously agreed to by the parties.

The husband also contests the trial court’s award of attorney’s fees to the wife. We find this point to be without merit in light of the Supreme Court’s opinion in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

AFFIRMED IN PART, REVERSED IN PART and REMANDED with instructions.

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


author: FERGUSON, Judge.

text:
    Mildred McCUTCHEN, Appellant, v. HIGHLANDS INSURANCE COMPANY, Appellee.
    No. 81-1080.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.

      Caron Balkany Goldstein, Daniels & Hicks and Elizabeth K. Clarke, Miami, for appellant.
    Joe N. Unger. Richard M. Welsh, Miami, for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   FERGUSON, Judge.

McCutchen, a tenant who was injured on the landlord’s premises, won a jury verdict for compensatory damages, then settled the punitive damages part of her claim against the landlord. She sought to enforce the settlement against the landlord’s insurer. This appeal is from an order which entered summary judgment for the insurer.

McCutchen (tenant) was injured in her apartment by an intruder, allegedly as a result of the gross negligence of Ten Associates’ employee in not providing adequate security. McCutchen successfully sued Ten Associates (insured-landlord) for compensatory damages and we affirmed the judgment. Ten Associates v. McCutchen, 398 So.2d 860 (Fla.3d DCA 1981), cert. denied, 411 So.2d 384 (Fla.1981). A claim for punitive damages was filed as part of the original suit. Highlands, the insurer, refused to defend the landlord against the punitive damage claim alleging the insurance policy provided no such coverage. Highlands advised the landlord to secure independent counsel for defense of the punitive damages claim. On this advice, the landlord hired other counsel, then entered into a Stipulation and Agreement with the tenant settling the punitive damages claim for $100,-000.00 with a condition that the settlement amount would be recoverable by the tenant only against the insurer.

At the outset the parties agree that: (1) an insurer is not obligated to pay punitive damages when the injury results from direct willful, wanton and reckless conduct of the insured, and (2) when this case was tried, an insurer was obligated to pay punitive damages where the insured’s liability was purely vicarious under the doctrine of “respondeat superior”. Hartford Accident & Indemnity Company v. U.S. Concrete Pipe Company, 369 So.2d 451, 452 (Fla. 4th DCA 1979).

Appellant contends that summary judgment was not proper because there remains a factual issue as to whether the conduct of the insured, separate from that of the employee, was such as to justify the imposition of punitive damages which the insurer is obligated to pay. Appellee answers that since Mercury Motors Express, Inc., v. Smith, 393 So.2d 545 (Fla.1981)—decided after summary judgment was entered in this case — there is no theory under which an insurer can be legally obligated to pay punitive damages imposed against the insured, in obvious reliance on the following language from Mercury Motors:

... Before an employer may be held vicariously liable for punitive damages under the doctrine of respondeat superior, there must be some fault on his part.... 393 So.2d at 549.

Relying on the above language from Mercury Motors as a first premise, appellee applies, as a second premise, the established rule that public policy will not permit one to insure himself against his own misconduct, Hartford Accident & Indemnity Company v. U.S. Concrete Pipe Company, 369 So.2d at 452; Travelers Insurance Co. v. Wilson, 261 So.2d 545, 549 (Fla. 4th DCA 1972) and reasons that Mercury Motors has effectively abolished the vicarious liability exception to the rule which insulates insurers from any obligation to pay punitive damages. The conclusion does not necessarily follow. Mercury Motors does hold that an employer will not be liable in punitive damages for wanton and willful acts of his employee unless the employer is also at fault. But where the claim for punitive damages is based on the wanton and willful misconduct of an employee and the employer is also at fault, but the employer’s fault does not amount to gross negligence or willful or wanton misconduct, the insurer is not relieved of its legal obligation to pay. See Dorsey v. Honda Motor Co., Ltd., 670 F.2d 21 (5th Cir.1982); Jones v. Holiday Inns, Inc., 407 So.2d 1032 (Fla. 1st DCA 1981). Our conclusion here is quite consistent with the holding in Travelers Insurance Co., 261 So.2d at 548, which is not affected by Mercury Motors:

... if punitive damages are assessed against [an owner] solely on the basis of vicarious liability arising out of ownership, and not because of any active wrongdoing or misconduct on [owner’s] part which would itself justify imposition of punitive damages, then such damages are within the insuring agreement....

Both Mercury Motors and Travelers contemplate that there can be some fault on the part of an employer which contributes to the injury of a third person but which fault is not, independent of the employee’s conduct, willful and wanton.

We understand the case to have been decided only on the point of law. Since the law does not preclude recovery for punitive damages against the insurer in all cases where the employee’s conduct is wanton and willful and the employer is also at fault, the case must be considered on the facts presented. A summary judgment may be entered only after the moving party has shown that there exists no genuine issue as to any material fact. Humphrys v. Jarrell, 104 So.2d 404 (Fla.2d DCA 1958).

Reversed and remanded.

      . The motion for summary judgment alleged only that there was no coverage.

      . The validity of the agreement is not an issue in this appeal.

      . At this stage of the proceedings we need not address the more difficult question: what misconduct on the part of the employer is less than that which would itself support a claim for punitive damages, but which would constitute the degree of fault necessary to shift to the insurer an obligation to pay.


author: PER CURIAM. FERGUSON, Judge

text:
    Roberto GONZALEZ-GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1550.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Rehearing Denied Jan. 17, 1983.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. State v. Richards, 388 So.2d 573 (Fla. 4th DCA 1980), petition for review denied mem., 397 So.2d 778 (Fla.), cert. denied mem., 454 U.S. 879, 102 S.Ct. 359, 70 L.Ed.2d 188 (1981).

FERGUSON, Judge

(dissenting).

The Coast Guard boarded a small motorboat operating in territorial waters and conducted a search without consent and without probable cause to believe there was criminal activity taking place. This is precisely the conduct the Supreme Court held constitutionally impermissible in State v. Casal, 410 So.2d 152 (Fla.1982). See also State v. Zafra, 408 So.2d 745 (Fla. 3d DCA 1982) (rejecting the state’s position that authority conferred by federal statute is not limited by the reasonableness requirement of the fourth amendment and that a customs officer may therefore make an investigative stop and subsequent search of a vessel in inland waters without a prior reasonable suspicion of illegal activity).

The motion to suppress should have been granted.


author: PER CURIAM. SCHWARTZ, Judge

text:
    The STATE of Florida, Appellant, v. Abraham Francisco MOLINS, Appellee.
    No. 82-654.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Rehearing Denied Jan. 17, 1983.

      Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., Miami, for appellant.
    Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The undisputed facts reveal that the defendant, about to board a plane, placed his carry-on luggage, a closed, zippered canvas bag, on the conveyor belt at a security checkpoint at the Miami International Airport. The x-ray screening device disclosed what appeared to be a pistol inside the bag. A police officer unzipped the bag and found therein a zippered soft black gun bag containing a loaded Browning pistol. The defendant was charged with carrying a concealed firearm in violation of Section 790.-01(2), Florida Statutes (1981). The trial court, finding that these undisputed facts did not establish a prima facie case of guilt against the defendant, granted Molins’ sworn motion to dismiss. The State appeals. We reverse.

For an accused to be found guilty of the offense of carrying a concealed firearm, the firearm must not only be hidden from the ordinary sight of another person, as here, but must as well be “on or about the person,” Ensor v. State, 403 So.2d 349, 354 (Fla.1981). A firearm is considered “about the person” if it is “readily accessible” to him. Ensor v. State, supra. A firearm in a closed briefcase, see Rogers v. State, 336 So.2d 1233 (Fla. 4th DCA 1976), and one in a closed but unlocked center console of an automobile, see State v. Butler, 325 So.2d 55 (Fla. 3d DCA 1976), have been held to be sufficiently accessible to the person carrying the briefcase or seated next to the console for the purposes of the statute. While it is true that in order for the defendant to gain access to the firearm in the present case, he would have had to unzip two containers, in our view the firearm was not any less accessible than one in a locked glove compartment of a vehicle which, according to Ensor, may be considered, in the words of the statute, “about the person.” It may be that it can be shown at trial, or even beforehand through a more detailed motion to dismiss, that the firearm was not “readily accessible.” However, the bare bones allegation in the defendant’s motion that the firearm was doubly encased, as described, does not make the firearm inaccessible as a matter of law so as to warrant a dismissal of the charge against the defendant.

Reversed and remanded.

SCHWARTZ, Judge

(dissenting).

The requirement that the firearm in question be on the person of or “readily accessible” to the defendant is imposed because the very purpose of forbidding carrying a concealed weapon is to prevent its being suddenly produced in an ambush-like manner to the surprise of another who was previously unaware that his antagonist was armed. Sutton v. State, 12 Fla. 135 (1867); Carlton v. State, 63 Fla. 1, 58 So. 486 (1912). I entirely agree with the trial court that, as a matter of law, a firearm which can be secured only by unzipping two separate containers could not possibly be employed in this fashion and thus does not fall within the statutory definition.

The majority bases its conclusion, not upon any quarrel with this position, but solely upon the supreme court’s statement in Ensor v. State, 403 So.2d 349 (Fla.1981) that

[t]he term ‘on or about the person’ means physically on the person or readily accessible to him. This generally includes the interior of an automobile and the vehicle’s glove compartment, whether or not locked.

403 So.2d at 354. The Ensor decision itself concerned only the issue of concealment and the reference to the accessibility question, which contains no analysis and cites to no authority on the point, is the purest dictum. Moreover, the glove compartment situation is obviously not the one involved here. While Hoffman v. Jones requires us to follow the commands of the supreme court as to issues which it has directly decided, I do not believe that we must base our decision on what it merely intimates it might “generally” conclude on an at best analogous question which was not before it. See State v. Dodd, 419 So.2d 333, 335, n. 2 (Fla.1982). On the basis of my own view of the merits of the issue, I would affirm.

      . In 1982, the legislature amended the concealed weapon statute and provided, inter alia, that a firearm or other weapon in a vehicle’s glove compartment, whether or not locked, is by definition “securely encased,” and the possessor thereof does not violate Section 790.01. See Chapter 82-131, House Bill No. 1173, effective April 6, 1982. This amendment is applicable only to the possession of concealed firearms within the interior of a private conveyance. Moreover, thq offense herein occurred on November 24, 1981.

      . 280 So.2d 431 (Fla.1973).


text:
    Juan FRANCISCO-FERRO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2700.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    Rehearing Denied Jan. 19, 1983.
    Juan Francisco-Ferro, in pro. per.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. Lucas v. State, 376 So.2d 1149 (Fla.1979); Thomas v. State, 374 So.2d 508 (Fla.1979); Clark v. State, 363 So.2d 331 (Fla.1978); Johnsen v. State, 332 So.2d 69 (Fla.1976); State v, Sebastian, 171 So.2d 893 (Fla.1965); Zamora v. State, 361 So.2d 776 (Fla.3d DCA 1978).


author: BASKIN, Judge.

text:
    Avi LIMOR, Appellant, v. Nanci CONLI, Realtor, individually and for the Use and Benefit of Joe COMESANA, Nathaniel Ambers, and Ayke Rattansey, as Trustee, Appellees.
    Nos. 82-357, 82-393 and 82-687.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    Rehearing Denied Jan. 14, 1983.

      Howard W. Mazloff, Coral Gables, for appellant.
    Frank, Strelkow & Gay and Peter Strel-kow, Goodhart & Rosner, Daniels & Hicks and Elizabeth K. Clarke, Miami, for appel-lees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

We affirm the final judgment awarding appellees a brokerage commission, the judgment indemnifying appellees, and the judgment for costs. Appellant, as the third-party defendant-indemnitor, may not complain that the verdict was inadequate when any error inured to his benefit, McMullen v. Hoofnagle, 106 Fla. 16, 142 So. 598 (1932); Golden v. Harrell, 147 So.2d 350 (Fla. 2d DCA 1962), cert. denied, 155 So.2d 150 (Fla.1963); see Edmundson v. Swope, 395 So.2d 553 (Fla. 5th DCA 1980); thus, appellant’s contention that the evidence supported only a larger award than that returned by the jury, or nothing at all, is unavailing. Because appellant failed to request a jury instruction on damages and objected neither to the verdict forms nor to the instructions, accord Golden v. Harrell; see Wright v. Coca Cola Bottling Co. of Miami, 256 So.2d 56 (Fla. 4th DCA 1971); Fla.R.Civ.P. 1.470, we reject his contention.

Appellant declined to appear and defend the action seeking indemnification under the contract although he received timely notice; consequently the third-party complaint resulted in a conclusive adverse judgment. McArthur v. Gaines, 286 So.2d 608 (Fla. 3d DCA 1973); Olin’s Rent-A-Car System, Inc. v. Royal Continental Hotels, Inc., 187 So.2d 349 (Fla. 4th DCA), cert. denied, 194 So.2d 621 (Fla.1966); Westinghouse Electric Corp. v. J.C. Penney Co., 166 So.2d 211 (Fla. 1st DCA 1964); see Hull & Company v. McGetrick, 414 So.2d 243 (Fla. 3d DCA 1982).

We reject as without merit appellant’s remaining contentions.

Affirmed.


author: GLICKSTEIN, Judge.

text:
    Elizabeth H. WOLFE, Appellant, v. Paul C. WOLFE, Appellee.
    No. 81-466.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 1982.
    Rehearing Denied Jan. 17, 1983.

      Richard G. Lubin of Lubin & Hamill, P.A., West Palm Beach, for appellant.
    Larry Klein, Jane Kreusler-Walsh and Montgomery, Lytal, Reiter, Denney & Sear-cy, P.A., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

The parties’ final judgment of dissolution, entered on March 13, 1975, incorporates an agreement of the parties which contains various numbered paragraphs. Pursuant to paragraph 2f, appellee was required to pay appellant $200 monthly for the support of each of the couple’s three children, all of whom lived with appellant when the agreement was made. In addition, paragraph 10b provided for payments by appellee to appellant in the amount of $600 per month for a period of five years.

Prior to the expiration of the five-year period, appellant filed a petition for modification of child support and redetermination of rehabilitative alimony. The trial court granted the request for additional child support, increasing the sum to $100.00 per week per child until the minors (there are now only two) reach the age of majority, or become married or self-supporting. The court, however, denied appellant’s request for modification of alimony, finding that the provision in 10b was part of a non-modifiable property settlement agreement not intended as alimony. Appellant contends this was error and we agree.

The relevant sections of the agreement, paragraphs 10 and 16, read as follows:

10. Payments to the Wife.
a. The Husband shall pay the Wife $500.00 in cash upon the execution of this agreement.
b. The Husband shall pay the Wife the sum of $600.00 each month for a period of five (5) years. Such payments to cease upon death or remarriage of the wife.
c. The Husband agrees to pay to the Wife the amount of $8,000.00 within a period of two (2) years from the date of this agreement at a rate of interest of 8% on the unpaid balance until paid with no penalty or addition of interest if paid in advance.
16. Release. Only those payments to the Wife set out in paragraph 10 and payments for the benefit of the children shall be a charge on the Husband’s estate, otherwise both parties hereby fully release the other from claims, except as agreed herein, of any nature against the other or the other’s heirs, estate, successors or assigns.

Whether these paragraphs refer to alimony or a final property settlement agreement is at issue and the distinction between the two concepts is determinative.

Pursuant to section 61.14(1), Florida Statutes (1973), payments that are considered in the nature of alimony are modifiable. In contrast, payments that are regarded as consideration for a final resolution of property disputes cannot be modified unless by the parties’ mutual consent. Mills v. Mills, 339 So.2d 681 (Fla. 1st DCA 1976). To determine the nature of an agreement relating to payments, we look to the intent of the parties “by examining the plain language of the agreement, its surrounding circumstances, and the parties’ apparent purpose.” Woodworth v. Woodworth, 385 So.2d 1024, 1026 (Fla. 4th DCA), pet. for rev. denied, 392 So.2d 1381 (Fla.1980).

We recognize that paragraph 10b does not mention “alimony”; however, the use of this term alone is not conclusive evidence of the parties’ intent, but merely an indicium of it. 385 So.2d at 1026. More significant are the facts that the payments were to terminate upon appellant’s death or remarriage [see id., citing Evans v. Evans, 212 So.2d 107 (Fla. 4th DCA 1968)], and that both parties consistently treated the payments as alimony on their individual federal income tax returns. The deduction by appellee of the payments was permissible only if the payments were alimony and not part of a property settlement agreement. Hyotlaine v. Hyotlaine, 356 So.2d 1319, 1321 (Fla. 4th DCA 1978). The charging of such payments to appellee’s estate in paragraph 16 does not change our conclusion because parties may agree that alimony does not terminate upon the death of the obligor. O’Malley v. Pan American Bank, 384 So.2d 1258 (Fla.1980).

Having concluded that the payment provision is modifiable as rehabilitative alimony, we hold that the trial court should have extended the payments and considered whether any increase should have been awarded. Rehabilitative alimony can be modified or extended if the movant can “show that ‘notwithstanding reasonable and diligent efforts on petitioner’s part, substantial rehabilitation has not indeed occurred,’ Lee v. Lee, supra 309 So.2d [26] at 27 [(Fla. 2d DCA 1975)] ....” Reid v. Reid, 396 So.2d 818, 820 (Fla. 4th DCA), pet. for rev. denied, 402 So.2d 612 (Fla.1981). If the party seeking an extension or modification of alimony cannot “go it alone,” if he or she is unable to “be in a position reasonably to continue to maintain the lifestyle to which the parties had become accustomed during marriage,” the petition for modification should be granted. 309 So.2d at 28. See also Veach v. Veach, 407 So.2d 308 (Fla. 4th DCA 1981).

Turning to the present case, we make the following observations: Since the dissolution, appellant, who has a degenerative disc problem which prevents her from undertaking heavy physical labor, has obtained a Masters of Science degree in Urban and Regional Planning and a real estate license. Immediately after the dissolution she moved to Tallahassee to work with the Division of State Planning at a job paying $10,000 a year. Upon her arrival, she learned the job had been terminated. She eventually got a job with the Florida Association of Community Colleges, where she worked for seventeen months, earning $11,-500 a year. After her job was eliminated, she received unemployment compensation for seven months. After obtaining her real estate license in April of 1978, she grossed $3,500 from then until December selling property. In 1979 she earned approximately $12,000 in real estate. Although 1979 was a fairly good year, she claims she is unable to support herself with real estate sales because of the depressed market. After part-time jobs, she started working for the Bureau of Disaster Preparedness in her chosen field in November of 1980, earning $8.21 an hour. The position was funded until September 30,1981, at which time the grant for this program was to terminate. She now wants to go to law school.

Appellant has made diligent efforts to secure a job both in and out of her chosen field. Through no fault of her own, she is not able to reasonably maintain the lifestyle to which she was accustomed in 1975. As her unrebutted testimony shows, inflation has had an adverse effect on her cost of living. Under Powell v. Powell, 386 So.2d 1214 (Fla. 3d DCA 1980), this specific demonstration of a resulting increase in appellant’s financial needs due to the ravages of inflation is enough of a change in circumstance to warrant modification.

Although a heavier burden rests upon a party seeking modification of alimony that is based upon an agreement than otherwise would be required, Schottenstein v. Schottenstein, 384 So.2d 933 (Fla. 3d DCA), pet. for rev. denied, 392 So.2d 1378 (Fla.1980), appellant’s petition for a rede-termination of rehabilitative alimony should have been granted, giving her at least more time, and perhaps more money, to become rehabilitated. On remand the trial court should determine the duration of the extension and the amounts, if any, of increase.

The trial court granted appellant’s request for additional child support, increasing the amount to $100.00 per week per child until the two minors (the third child is no longer subject to the payment schedule under the agreement) reach majority or become self-supporting. Appellant contends that this amount is insufficient in light of the evidence presented concerning the increased needs of her children, now adolescents, and inflation. Citing to Petersen v. Petersen, 392 So.2d 298 (Fla. 4th DCA 1980), she claims error was committed, especially in light of the fact that the effect of the trial court’s order is to award appellant an average of only $133.00 per month per child additional child support over and above what appellee was voluntarily paying at the time of the final hearing. (Appellee had agreed to pay $300 per month per child prior to the filing of appellant’s petition.)

We agree with appellant that she established increased needs of her children, the adverse impact of inflation, and appel-lee’s increased income — three criteria identified in Petersen which justify a finding of a change in circumstances sufficient to warrant an increase in child support. But appellant, in our opinion, has failed to demonstrate that the trial judge abused his discretion in not increasing the child support beyond his award of approximately $433.00 per month per child. Accordingly, the trial court’s order is affirmed in part, reversed in part, and remanded.

HERSEY, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.

      . Perhaps we should refer to these kinds of accords as Miles Standish agreements as the problems always seem to arise, not because of what is said, but because of what is not said. We judges and lawyers have more tools at our disposal than the other professions; namely, all of the words in the English language. We must use those tools with the same care as the physician uses his scalpel. Accordingly, in such agreements between spouses, if the parties desire that the wife be paid alimony without the payments being modifiable, they should express it. Such provision is plainly enforceable. Turner v. Turner, 383 So.2d 700 (Fla. 4th DCA), pet. for rev. denied, 392 So.2d 1381 (Fla.1980); Muss v. Muss, 390 So.2d 415 (Fla. 3d DCA 1980); Kilpatrick v. McLouth, 392 So.2d 985 (Fla. 5th DCA 1981). Similarly, if payments are intended to be a property right and non-modifiable, that, too, should be said as such provision is equally enforceable.