author: SCHWARTZ, Judge.

text:
    The STATE of Florida, Appellant, v. Noel STEFFANI, Jr., Appellee.
    No. 80-933.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.
    Janet Reno, State Atty. and Ira N. Loewy, Asst. State Atty., and Bruce H. Lehr, Legal Intern, for appellant.
    Paul Morris, Miami, for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   SCHWARTZ, Judge.

This appeal by the state from an order of suppression presents the question of whether the “knock and announce” statute and Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) apply to the entry into a suspect’s home of police officers in the company of an undercover agent who had previously been invited there. We join the fourth district in its recently expressed conclusions that they do not. Therefore, in accordance with the trial judge’s stated wishes, but not with his ruling, the order under review will be reversed.

The comprehensive decision rendered below after a full evidentiary hearing sets forth the court’s factual findings and legal determination as follows:

Undercover agents, Guilfoyle and Houck, were invited by the Defendant, Noel Steffani, to his home for the purpose of consummating an illegal drug sale on the evening of July 6,1979. After the usual amenities in a transaction of this nature, the Defendant escorted the agents to a bedroom, where he displayed various controlled substances, including marijuana, cocaine and assorted tablets. After agreeing upon a price, Agent Houck went outside the house, ostensibly to obtain the money for payment. When the agent returned, he was followed (on a pre-arranged signal) by various back-up teams of officers with guns drawn. None of these officers knocked, or announced their presence, or performed the requirements of the ‘knock and announce law’, § 901.19(1), Fla.Stat. The back-up officers proceeded to arrest the Defendant and to confiscate the illegal contraband. The undercover agents continued for some period to play the ruse, and, in fact, were initially frisked and detained. Some time later, their true identity was revealed to the Defendant.
“1 Note: Throughout these proceedings, the State has contended that the undercover agents were the arresting officers, notwithstanding the initial ruse, and points to the fact that Guilfoyle and Houck signed the arrest form. This Court does not agree.”
In light of the facts of this case, this Court is compelled to grant the Motion to Suppress under the recent authority of Hansen v. State, 372 So.2d 1003 (Fla. 4th DCA 1979), and State v. Roman, 309 So.2d 12 (Fla. 4th DCA 1975).[]

The applicability of Section 901.19(1), Fla. Stat. (1979) to variations of the “returning undercover officer” situation exemplified by this case has been the subject of numerous decisions — almost all of them, unaccountably enough, of the fourth district court of appeal. These cases had clearly established that the statute is not causally implicated and noncompliance therefore does not require suppression when — unlike the present situation — an arrest had been made or the contraband seized inside the premises, prior and unrelated to the unannounced return of the undercover officer. Koptyra v. State, 172 So.2d 628 (Fla. 2d DCA 1965); Powers v. State, 271 So.2d 462 (Fla. 1st DCA 1973); State v. Yenke, 288 So.2d 531 (Fla. 4th DCA 1974), cert. denied, 295 So.2d 303 (Fla.1974); State v. Farrington, 338 So.2d 81 (Fla. 4th DCA 1976); Preces v. State, 378 So.2d 77 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1117 (Fla. 1980), cert. denied, - U.S. -, 101 S.Ct. 569, 66 L.Ed.2d 471 (1980). The rule was otherwise, however, when, after and as a result of a reentry by the initially invited officer, the arrest or seizure was effected either (a) by that particular officer, State v. Collier 270 So.2d 451 (Fla. 4th DCA 1972), followed in State v. Roman, 309 So.2d 12 (Fla. 4th DCA 1975), cert. dismissed, 312 So.2d 761 (Fla.1975); see also, Urquhart v. State, 211 So.2d 79 (Fla. 2d DCA 1968), or (b) a fortiori, by uninvited accompanying uniformed officers — as occurred in this case. Hansen v. State, 372 So.2d 1003 (Fla. 4th DCA 1979).

In a two-step process, however, the fourth district has now overruled these latter holdings. Lawrence v. State, 388 So.2d 1250 (Fla. 4th DCA 1980), held that the original invitation to the disguised officer applied to his own anticipated return, even though he had left on a pretext and was reentering for the wholly unanticipated purpose of arresting those with whom he had been dealing. At 388 So.2d 1252, the court stated:

[W]e hold, as we did concerning Officer Riffle in Yenke, that Ortenzo had implied consent to reenter the house. Appellants were attempting to sell contraband; the deal had been agreed upon; and Ortenzo ostensibly went outside to get the money. Obviously, appellants wanted him to return to complete the deal. Thus, to require him to knock and announce would be an absurd legalistic construction of the knock and announce statute. To the extent State v. Collier, 270 So.2d 451 (Fla. 4th DCA 1972), holds to the contrary, we recede from it.[]

The court reiterated this holding in State v. Schwartz, 398 So.2d 460 (Fla. 4th DCA 1981):

We find that the knock and announce statute does not apply in this case because Gibbons had an implied invitation to return to the residence. See, Lawrence v. State, supra, at 1252. To the extent that the above cases [] hold to the contrary, we recede from them.

More significantly as to this case, Schwartz expressly receded from Hansen. Adopting the specially concurring opinion in Lawrence of Judge Anstead, who had himself authored Hansen a short time before, the court held that the presence of other never-invited officers, along with the undercover man, does not affect the inapplicability of the statute. The court held, in language which controls this case:

Fourth Amendment privacy considerations are relevant in construing the knock and announce statute. Accordingly we adopt the well reasoned, concurring opinion by Judge Anstead in Lawrence, supra.
I agree completely with Judge Dow-ney’s opinion. This court has had substantial difficulty reconciling several previous decisions we have rendered involving similar factual situations. See Hansen v. State, 372 So.2d 1003 (Fla. 4th DCA 1979). In my view once the defendants admitted the undercover police officers to their premises and proceeded to openly engage in criminal conduct in the officers’ presence they could not thereafter claim any violation of their reasonable expectation of privacy under the Fourth Amendment if one of the officers left and returned, alone or with other officers, and effected their arrest. Under such circumstances the defendants have waived any privacy claim by disclosing the contraband and engaging in criminal conduct in the presence of the officers, who could have effected the arrest of the defendants inside the premises at any time. The fact that one officer left and returned on a ruse may have benefited the officers by allowing them the added protection of other armed officers to assist in the arrest, but such conduct did not constitute an additional intrusion into the defendants’ premises since such intrusion had already been lawfully accomplished by the undercover officers. I think the officers’ conduct in this case was eminently reasonable and would recede from any implication to the contrary contained in Hansen v. State, supra, and the cases cited therein. Also see Koptyra v. State, 172 So.2d 628 (Fla. 2nd DCA 1965).
Lawrence, supra, at 1253.
An officer who enters a defendant’s premises lawfully and who temporarily leaves the premises solely for the purpose of obtaining the funds to consummate a transaction has an implied invitation to return without the necessity of knocking and announcing his identity and purpose. The fact that he enlists the aid of other officers does no injustice to the statute or the constitution. It neither adds to, nor detracts from, the reasonableness of the reentry.
Furthermore, the occupants were expecting the return of the police officer with the money for the transaction. Thus, there could be no danger of violence to the police or the occupants from an unexpected intrusion.

We agree with and adopt this position. Since Steffani would have had no constitutional or statutory complaint had Houck or Guilfoyle initially arrested him and seized his drugs, it should make no constitutional or statutory difference to him either that these events occurred a few minutes later or that they were formally accomplished by other officers summoned solely for the salutary purpose of protecting the undercover men. In sum, we think, with the fourth district, that the consensual relinquishment of the defendant’s privacy involved in inviting the undercover officers into his home extends not only to their own contemplated reentry but also to the causally and temporally closely-related actions of other officers who act at their direction and must therefore be deemed to stand in their shoes. See, Section 901.18, Florida Statutes (1979) (“A peace officer making a lawful arrest may command the aid of persons he deems necessary to make the arrest.. .. A person commanded to aid a peace officer shall have the same authority to arrest as that peace officer.. . ”); Kirby v. State, 217 So.2d 619, 621 (Fla. 4th DCA 1969) (“Gulbrand, having been summoned under F. S. 1967, Section 901.18, F.S.A., had the right to do whatever the summoning officer himself might lawfully do. 6A C.J.S. Arrest § 16. Since Deputy Bowling could lawfully make the arrest, Deputy Gulbrand could likewise and his duty was not limited to merely assisting another deputy in making the arrest.”); see also, United States v. Ashley, 569 F.2d 975 (5th Cir. 1978), cert. denied, 439 U.S. 853, 99 S.Ct. 163, 58 L.Ed.2d 159 (1979); United States v. Heiden, 508 F.2d 898 (9th Cir. 1974); State v. Rebozo, 265 So.2d 706 (Fla. 3d DCA 1972), and cases cited. By the same token that fruit of the poisonous tree is toxic, produce from the unspoiled one is completely edible.

Upon the same general analysis, we also reject the appellee’s claim that Payton v. New York, supra, requires affirmance. Again, we agree with the Schwartz decision that, in Payton

[t]he United States Supreme Court held that the Fourth Amendment prohibits police from entering a suspect’s home without a warrant and without consent to effect an arrest of the suspect. The implied invitation here distinguishes this case from Payton, [e. o.]

Reversed.

      . The trial court went on to state:
      However, this Court wishes to express its reluctance to do so. This Court solicits the State to seek review of this Order, and establish precedent in this District which is contrary. In that regard, this court would point out the older precedent of State v. Collier, 270 So.2d 451 (Fla. 4th DCA 1972); and, Koptyra v. State, 172 So.2d 628, 631-632 (Fla. 2nd DCA 1965), which tend to support the State’s position.
      In the present case, it is indeed ironic and unfortunate that if the undercover agents had arrested the Defendant when the contraband was first shown in the bedroom, the arrest and seizure would have been constitutional. State v. Ashby, 245 So.2d 225 (Fla.1971). Unfortunately, here, the arrest and seizure were not made by Houck and Guilfoyle, but by other officers, who entered the home of Defendant on a pre-arranged signal after Houck went outside.

      This Court, most respectfully, disagrees with these decisions when applied to the facts of this case. As the Second District Court correctly reasoned in Koptyra v. State, supra, [172 So.2d] at 631-632:
      ‘The method of entry here did not involve a breaking within the meaning of Section 901.-19, Fla.Stats., F.S.A., as construed in Bene-field. By concealing his identity and purpose the inspector gained peaceable entry. As he was arresting Salute, the assisting officers entered through the open door and arrested the defendant and Pamela Hardin. There was no forcible entry. The entry was gained peaceably by ruse. Similar methods of entry have been upheld. The entry was not under color of office as in Collins v. State [Fla.App., 143 So.2d 700]. The Defendant does not contend and it does not appear that the search exceeded the recognized bounds of one incidental to an arrest. Consequently, the evidence complained of was properly admitted.’
      This reasoning should be extended to the facts of this case. The prerequisites of ‘knock and announce’ should not apply to a situation where an invited officer returns to the home of the Defendant with accompanying officers presumably needed to provide additional protection to the undercover agents.
      We observe that the lower court’s opinion is admirable, indeed, in at least two separate respects. It reflects a conscientious determination, in the absence of controlling authority of this court or the supreme court, to follow decisions of another district, despite the trial judge’s personal disagreement with them. See Holmes v. Blazer Financial Services, Inc., 369 So.2d 987 (Fla. 4th DCA 1979); State v. Hayes, 333 So.2d 51 (Fla. 4th .DCA 1976). Second, with amazing prescience, it contains legal reasoning which is virtually identical to that adopted both by the fourth district in subsequently overruling those very cases and by this court as well.

       The State has consistently urged that the Defendant lost his Fourth Amendment protection by inviting the undercover agents into his home, thereby transforming his premises into a commercial drug center. Lewis v. U. S., 385 U.S. 206 [87 S.Ct. 424, 17 L.Ed.2d 312] (1966) and, Preces v. State, 378 So.2d 77 (Fla. 3rd DCA 1979). Certainly, this premise is true. Unfortunately, this implied waiver did not extend to the arresting officers, who were not invited into his home. At least, this is the holding of Hansen v. State, supra, at 1005.] These officers did not follow the prerequisites of the “knock and announce law”, and thus the materials must be suppressed, in light of Hansen v. State, supra; and, State v. Roman, supra.

      . The state argues that this restrictive rule is applicable here because Guilfoyle, the officer who remained inside, obtained “constructive possession” of the narcotics. We cannot agree. The contention is unacceptably contrary to the factual conclusions of the trial court, see State v. Nova, 361 So.2d 411 (Fla.1978), which specifically found that “the arrest and seizure were not made by Houck and Guilfoyle, but by other officers, who entered the home ... after Houck went outside.” See note 1, supra. More importantly, we cannot agree with the view, as stated in Lawrence v. State, 388 So.2d 1250 (Fla. 4th DCA 1980) (alternative holding), that a police seizure may be accomplished by mere constructive possession. Apart from Lawrence, with which we disagree on this point, we know of no authority which suggests that, for constitutional purposes, the “seizure” of a tangible object may involve anything less than an act of taking actual and physical control. See Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906) (“a seizure contemplates a forcible dispossession of the owner”); 1 La Fave, Search and Seizure § 2.1 (1978).

      . The thus-overruled holding to this effect in Collier was that “[t]he statute does not have such exception and one cannot reasonably be found in the implication of the statute.” 270 So.2d 454. This is really no more than an unconvincing statement of the result. Although this writer was required to follow Collier while sitting as an associate judge of the fourth district in State v. Roman, supra, we much prefer the reasoning in Lawrence and Schwartz, infra, that the application of the statute should not depend upon the particular number or sequence of entries effected by a particular officer. Since a disguised officer is obviously not required to knock and announce when he is first invited inside, State v. Ashby, 245 So.2d 225 (Fla.1971); Preces v. State, supra, there is no reasonable basis for making him do so thereafter.

      . The cases referred to are Hansen v. State, supra; State v. Roman, supra; State v. Yenke, supra; and State v. Collier, supra.

      . Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), relied on in Preces v. State, supra.

      . See note 3, supra.

      .We emphasize that this is the extent of our holding in this case. We do not adopt the extreme position advocated by the state that the use of the defendant’s premises as a place of illegal business effects a waiver of his right to challenge any and all subsequent police intrusions into his home.

      . As in Lawrence, we have determined to certify this cause to the supreme court as one which involves questions of great public importance concerning the applicability of Sec. 901.19(1), Fla.Stat. (1979) and Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).


source: Caselaw Access Project

author: BARKDULL, Judge.

license: Public Domain

text:
    CITY OF CORAL GABLES, a municipal Corporation, Appellant, v. Steve R. GEARY, Appellee.
    No. 80-1795.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.

      Robert D. Zahner, Coral Gables, for appellant.
    Starr W. Horton, Miami, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BARKDULL, Judge.

The City filed a notice of appeal to review a final judgment, granting a property owner in Coral Gables certain building variances. This final judgment was affirmed by this court in its opinion reported in City of Coral Gables v. Geary, 383 So.2d 1127 (Fla. 3d DCA 1980). Pending review in this court, the appellee therein (Geary) sought by a motion in the trial court to require the City to post a supersedeas bond pursuant to Rule 9.310(b)(2), Florida Appellate Rules, if the notice of appeal was to act as a stay of the final judgment. The trial court denied the motion and Geary sought review of said order of denial in this court, pursuant to Rule 9.310(f), Florida Appellate Rules, which resulted in an order of this court reversing the trial court and directing it to fix the amount, terms and conditions of a supersedeas bond if the City was to have its notice of appeal act as a stay.

Thereafter, Geary again moved the trial court to fix the amount and conditions of a supersedeas bond. Upon this motion, the trial court entered an order fixing the amount of the bond at $25,000.00, conditioned as follows:

“ADJUDGED AND ORDERED that the defendant, CITY OF CORAL GABLES, a Municipal corporation, be, and it is hereby required to post a good and sufficient supersedeas bond in the amount of $25,-000 conditioned upon the payment of costs, interest, attorney’s fees and damages for delay in the event its appeal as filed with the District Court of Appeal of Florida, Third District, is dismissed, or the Final Judgment of this Court is affirmed, in order to stay enforcement of said Final Judgment as entered in this cause.”

Subsequently, this court affirmed the original final judgment in the opinion and decision set forth in the opening of this opinion. After the mandate was lodged in the trial court, Geary moved the trial judge to “Reinstate Final Judgment, Assess Damages for Delay and Attorney’s Fees”. Following a hearing, the trial judge awarded a sum of money for damages for delay occasioned by the appeal from the final judgment, granting the variances, and awarded the appellee and his counsel attorney’s fees. The City then filed the instant appeal, urging that the trial court erred in assessing damages for delay and in awarding attorney’s fees.

We affirm as to the damages for delay. The appellee followed the procedure laid down by the appellate rules and appropriately secured an order fixing the amount and conditions of a supersedeas bond. The City then had the election to post the bond if it wanted the notice of appeal to act as a stay. City of Lauderdale Lakes v. Corn, 371 So.2d 1111 (Fla. 4th DCA 1979). The City having posted the bond, it was appropriate for the trial court to assess damages for delay if the original judgment was affirmed.

The attorney’s fees presents another problem. Although the order conditioned the granting of supersedeas on attorney’s fees, no such provision was contained in the bond. Obviously, therefore, the surety on the bond would not be liable for attorney’s fees and, in accordance with the reasoning in City of Lauderdale Lakes v. Corn, supra, the City’s liability being co-existent with the conditions of the bond, no liability would exist against the City under the bond. The appellee has urged that by the inclusion of the word “fees” in present Florida Appellate Rule 9.310(c)(2), the trial court was authorized to fix attorney’s fees as a part of the damages for delay. Even if the appellee was correct in this proposition, for the reasons above stated, attorney’s fees not being a condition of the bond, he would have no right to recover same. However, it has long been the law in Florida that attorney’s fees are not an appropriate condition of a supersedeas bond posted to review a final judgment. Bernstein v. Bernstein, 43 So.2d 356 (Fla.1949); Larsen v. Higginbotham, 66 So.2d 40 (Fla.1953); Luekhardt v. Pardieck, 142 So.2d 749 (Fla. 2d DCA 1962). However, the contrary is true in fixing the terms and conditions of a supersedeas bond to stay the effect of an interlocutory order. Lawson v. County Board of Public Instruction, Franklin County, 114 Fla. 153, 154 So. 170 (1934); Luekhardt v. Pardieck, supra, Owens v. Smith, 154 So.2d 877 (Fla. 1st DCA 1963). As indicated, the appellee urges that the recent change in the appellate rules by the inclusion of the word “fees”, Rule 9.310(c)(2), Florida Appellate Rules, is broad enough to include attorney’s fees. We do not agree.

The commentary to the rules, when the present Rule 9.310(c)(2) was adopted, reads as follows: “Section (c) retains the substance of former Rule 5.6 and states the mandatory conditions of the bond.” The prior rule, as indicated, had been interpreted as not including attorney’s fees. In the adoption of the new appellate rules, effective March 1, 1978, the court made it clear that it did not intend to change the substantive law. In Re Proposed Florida Appellate Rules, 351 So.2d 981, 983 (Fla.1977). Compare: Lampkin-Asam v. District Court of Appeal, 364 So.2d 469 (Fla.1978). Therefore, the only interpretation that we can give to the inclusion of the word “fees” in the present Rule 9.310(c)(2) is that it means fees when otherwise recoverable by the ap-pellee, i. e., when provided for in appellate proceedings on a promissory note or by statute or other written obligation.

Therefore, so much of the final judgment that is for damages is affirmed, and the portion relating to the award of attorney’s fees is reversed.

Affirmed in part; reversed in part.


author: PER CURIAM.

text:
    Joaquin ESTEBAN, Appellant, v. Sandra CORDOBA and Jaime Cordoba, Appellees. Jaime CORDOBA and Joaquin Esteban, Appellants, v. Sandra CORDOBA, Appellee.
    Nos. 78-1806, 78-2076.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.

      Nancy Little Hoffman, Fort Lauderdale, and Jeffrey P. Wasserman of Litman, Muchnick & Wasserman, Hollywood, for appellants.
    Tobias Simon, Miami, for appellees.
   PER CURIAM.

This is a consolidated appeal from an order granting summary judgment and voiding a mortgage held by appellant Esteban, and from a final judgment awarding Sandra Cordoba, as lump sum alimony, Jaime Cordoba’s interest in their jointly held property. We reverse.

“It is axiomatic that summary judgment may not be used as a substitute for trial and that if the pleadings, depositions, answers to interrogatories, admissions, affidavits and other evidence in the file raise the slightest doubt upon any issue of material fact then a summary judgment may not be entered.” Unijax, Inc. v. Factory Insurance Association, 328 So.2d 448, 449 (Fla. 1st DCA 1976), cert. denied, 341 So.2d 1086 (Fla.1976). Furthermore, “[T]he burden of proving the absence of a genuine issue of material fact is upon the party moving for summary judgment . . . . ” Steinhardt v. Lehman, 338 So.2d 64, 65 (Fla. 3d DCA 1976). Applying these dual standards to the case at bar, we find that appellee, Sandra Cordoba, failed to establish conclusively the absence of a genuine issue of material fact. For example, although she advanced the legal conclusion that the mortgage in question was invalid, she failed to establish facts showing that the power of attorney utilized to procure the mortgage had been revoked or was otherwise improperly used. Moreover, appellee totally failed to either disprove the affirmative defenses asserted by appellants or establish the legal insufficiency of those defenses. See Bunner v. Florida Coast Bank, 390 So.2d 126 (Fla. 4th DCA 1980). Therefore, we reverse the order granting summary judgment.

In light of the above action, we are also compelled to reverse those portions of the final judgment which awarded Jaime Cordoba’s interest in the jointly held property to Sandra Cordoba, and which awarded Sandra Cordoba’s interest in certain property in Columbia to Jaime Cordoba. Both awards were predicated upon the belief that the jointly held property was unencumbered. Since that is no longer certain, the trial court should have the flexibility to reconsider the issue of alimony. Cf. Eagan v. Eagan, 392 So.2d 988 (Fla. 5th DCA 1981). In taking this course, we express no opinion as to the form or amount of the prior award.

REVERSED and REMANDED.

MOORE, BERANEK and HURLEY, JJ., concur.


author: BERANEK, Judge.

text:
    In the Interest of M. A. S., a child.
    Nos. 80-1033, 80-1034.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Allen R. Bosworth of Legal Aid Service of Broward County, Inc., Fort Lauderdale, for appellant.
    David L. Wagner, Fort Lauderdale, for appellee, Department of Health and Rehabilitative Services, Inc.
   BERANEK, Judge.

This is an appeal from a final order entered by the Circuit Court which dismissed a natural mother’s petition to set aside an order of permanent commitment and a pri- or order of dependency regarding her natural daughter. The mother challenged the orders arguing that she had not received proper notice. The trial court determined that it lacked jurisdiction to consider the mother’s petition and dismissed it. Although we do not agree with the court’s jurisdictional ruling, we affirm for other reasons.

Here there were actually two separate proceedings involving the child. In an initial proceeding, the child was determined to be dependent. In a subsequent proceeding, the child was again determined to be dependent and pursuant to Section 39.41(l)(d), Florida Statutes (1979), the child was permanently committed to the Department of Health and Rehabilitative Services for subsequent adoption.

The natural mother filed a petition to set aside the finding of dependency and the subsequent permanent commitment on January 19, 1980, almost eleven months after the order of commitment. The trial court held a full evidentiary hearing on the mother’s petition. The natural mother contended no proper certificate of diligent search had been filed in the initial dependency proceeding. She further alleged that because the Department failed to serve her personally it' failed to obtain jurisdiction over her and that the initial dependency order was therefore void. Because of this she alleged the later commitment order was also void.

The Department of Health and Rehabilitative Services moved to dismiss the petition alleging the court had no jurisdiction in the matter pursuant to Section 39.41(4), Florida Statutes (1979), which provides in part:

The entry of the permanent order of commitment shall not entitle the licensed child-placing agency or department to guardianship of the estate or property of the child, but the licensed child-placing agency or department shall be the guardian of the person of the child and the court shall no longer exercise jurisdiction over the child after entry of such order. (Emphasis added.)

After a full evidentiary hearing, the trial court dismissed the petition on jurisdictional grounds. The court concluded, as the Department had urged, that it was without jurisdiction to consider the matter. We disagree for if the notice to the natural mother was so defective as to render the order void the trial court would have jurisdiction to set it aside.

We initially note that appellant/natural mother does not challenge the sufficiency of notice nor compliance with the statutory procedures in the later permanent commitment proceeding. Indeed, the evidence presented shows that the statute was adequately complied with, an affidavit of diligent search and inquiry was filed, and the procedures regarding notification were sufficient. The Department alleged and the evidence showed that after giving up custody of the child it had not heard from the natural mother since April of 1977 and could not locate her after considerable effort. Appellant’s only argument is that defects in the initial dependency proceedings tainted the later commitment hearing. We disagree because the commitment action was a separate proceeding and in compliance with all statutory requirements.

Appellant also asserts that parental rights regarding a child may never be terminated without personal service of process upon both parents. We reject this argument and find that constructive service is sufficient when coupled with a showing of abandonment and when the other requirements of Chapter 39 are met. Otherwise a child whose parents abandoned him could never be adopted unless the parents were actually found. Here, there was more than adequate evidence of abandonment.

We conclude the trial court did have jurisdiction to consider the natural mother’s petition to set aside the order of commitment, however, there is no need for reversal. There has been a full hearing and the evidence is overwhelming that petitioner had adequate notice and that the prescribed procedures were followed. Further the only attack relates to the earlier proceeding which did not affect the later proceeding for permanent commitment.

THE ORDER OF COMMITMENT IS AFFIRMED.

HERSEY, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: PER CURIAM. BERANEK, Judge,

text:
    Morris KAPLAN, Appellant/Cross-Appellee, v. Carol V. KAPLAN, Appellee/Cross-Appellant. Morris KAPLAN, Appellant, v. Carol V. KAPLAN, Appellee.
    Nos. 79-2463, 80-1000.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.

      Norman D. Zimmerman, Pompano Beach, for appellant/cross-appellee.
    Ralph Diaz and Paul J. McDonough of Paul J. McDonough, P. A., Coral Springs, for appellee/cross-appellant.
   PER CURIAM.

AFFIRMED.

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

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting:

I respectfully dissent. I conclude that the trial court erred in awarding the husband a special equity in certain jointly owned stocks.


text:
    Joseph Michael PEADON, Appellant, v. STATE of Florida, Appellee.
    No. VV-476.
    District Court of Appeal of Florida, First District.
    May 18, 1981.
    George W. Estess and Robert G. Kerri-gan, Pensacola, for appellant.
    Jim Smith, Atty. Gen. and Carolyn Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

We affirm Appellant’s underlying conviction of possession of more than twenty (20) grams of marijuana in violation of Section 893.13(l)(e), Florida Statutes. However, we reverse and remand for resentencing in accordance with Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla. 1981).

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

ERVIN, J., and LILES, WOODIE A. (Retired), and PEARSON, TILLMAN (Retired), Associate Judges, concur.


author: HUBBART, Chief Judge.

text:
    AUTORICO, INC., a Florida Corporation d/b/a Miami Fiat, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, as Subrogee of Derrick Chung, Appellee.
    No. 80-764.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.

      Jerry B. Schreiber, Miami, for appellant.
    Robert B. Ely, Coral Gables, for appellee.
    Before HUBBART, C. J., and SCHWARTZ, J., and LILES, WOODIE A. (Ret.), Associate Judge.
   HUBBART, Chief Judge.

We once again face issues which arise from the application of Section 57.105, Florida Statutes (1979), authorizing the award of attorney’s fees to the prevailing party in a civil litigation where the losing party raises nothing but frivolous issues. For the reasons which follow, we conclude that: (1) it is not a prerequisite to an attorney’s fee award under the above statute that the prevailing party in a civil litigation specifically plead in its complaint or answer its entitlement to such attorneys’ fees, so long as a motion requesting such fees is filed at the conclusion of the litigation and is thereafter heard by the trial court upon proper notice; (2) it is not a prerequisite to an attorney’s fee award under the above statute that the trial court specifically find in so many words that there was a complete absence of a justiciable issue of law or fact raised by the losing party, so long as the trial court grants a motion for such fees based solely on the authority of the above statute; (3) the trial court in setting a reasonable attorney’s fee under the above statute may consider the existence of a contingent fee contract between the prevailing party and its attorney but such contract is not conclusively binding upon the court. We, accordingly, affirm on the main appeal and reverse on the cross appeal in the instant case.

I

The plaintiff Government Employees Insurance Company [“GEICO”], as subrogee of its insured Derrick Chung, brought suit against the defendant Autorico, Inc., d/b/a Miami Fiat [“Autorico”] for negligence, breach of implied warranty and strict liability in tort, claiming that the defendant Autorico had sold a defective automobile to the plaintiff GEICO’s subrogee Chung, which car self-destructed by fire after having been driven 10 miles after purchase. The defendant Autorico answered, generally denying the allegations of fact in the complaint and raising the affirmative defense of estoppel; also, the defendant Au-torico filed a third party complaint against its insurer Travelers Indemnity Company claiming insurance coverage for any liability arising from the above incident.

The case was tried non-jury in which the plaintiff GEICO was represented by counsel. Said counsel had a contingent fee agreement with the plaintiff GEICO entitling counsel to Vs of any net recovery obtained in the action. The trial court entered a final judgment, after trial, in favor of the plaintiff GEICO in the amount of $2,650; the trial court also entered a final judgment on the third party complaint finding no insurance coverage therein but obligating Travelers Indemnity Company to pay all attorney’s fees and costs incurred by the defendant Autorico in defending the action.

The plaintiff GEICO filed a motion to assess attorney’s fees against the defendant Autorico under Section 57.105, Florida Statutes (1979), claiming that the defenses raised in the cause were frivolous. This motion was filed after the entry of the above final judgment in favor of the plaintiff GEICO; no request for said attorney’s fees have been pled by the plaintiff GEICO in its operative complaint. A hearing was held below on said motion upon proper notice. The trial court granted the motion, found that a reasonable attorney’s fee in this case was $2,150, but awarded an attorney’s fee in the amount of $883.33 in accord with the contingency fee contract entered into between the plaintiff GEICO and its attorney.

II

The defendant Autorico appeals claiming no liability for payment of attorney’s fees under Section 57.105, Florida Statutes (1979) because: (a) the plaintiff GEICO did not specifically plead an entitlement to said fees in his operative complaint; and, (b) the trial court made no specific finding in the order setting attorney’s fees that there was a complete absence of a justiciable issue of either law or fact raised by the losing party. It should be noted that no contention is made here that the plaintiff GEICO was not otherwise entitled to attorney’s fees under the above statute. For the reasons which follow, we reject the defendant’s contentions herein and affirm on the main appeal.

A

The law in Florida appears clear that where a party is entitled by statute to an award of attorney’s fees in an action, it is not essential, but only better practice, that the party seeking such fees plead its entitlement to same in its complaint or answer. Indeed, a trial court is required to award statutory attorney’s fees pursuant to proper motion upon due process notice and hearing, although said fees have not been specifically pled in the complaint or answer. Ocala Music & Marine Center v. Caldwell, 389 So.2d 222, 223 (Fla. 5th DCA 1980); Washington v. Rodgers, 201 So.2d 636 (Fla. 4th DCA 1967), cert. denied sub nom., Prudential Mutual Casualty Co. v. Washington, 211 So.2d 556 (Fla.1968), citing a trilogy of Supreme Court cases; New Amsterdam Casualty Co. v. James, 122 Fla. 710, 166 So. 813 (1936); National Benefit Life Insurance Co. v. Brown, 103 Fla. 758, 139 So. 193 (1931); United States Fire Insurance Co. v. Dickerson, 82 Fla. 442, 90 So. 613 (1921); but cf., Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977); Price v. Boden, 39 Fla. 218, 22 So. 657 (1897).

This line of authority seems particularly apt when applied, as here, to a statutory attorney’s fee award under Section 57.105, Florida Statutes (1979). There is certainly no way for a litigant to know in advance whether the adverse party will raise nothing but frivolous issues in a civil case and, therefore, to plead in good faith its entitlement to attorney’s fees under Section 57.-105, Florida Statutes (1979). Indeed, we think it is best to presume good motives on the part of one’s adversary even on what appears to be an open and shut case. It is only after the case has been terminated that a sensible judgment can be made by a party as to whether the adverse party raised nothing but frivolous issues in the cause, and, if so, to file an appropriate motion, as here, seeking an entitlement to said attorney’s fees under Section 57.105, Florida Statutes (1979).

In the instant case, the plaintiff GEICO did not plead its entitlement to attorney’s fees under Section 57.105, Florida Statutes (1979), in its operative complaint, but subsequent to trial it filed a proper motion for the assessment of attorney’s fees under the above statute. The defendant Autorico received proper notice below on said motion, and the trial court after hearing elected to grant the motion. We cannot say that under these circumstances the defendant Autorico was denied due process notice and hearing with respect to the attorney’s fee award in this cause. Indeed, it is our view that the plaintiff GEICO proceeded properly below in all respects.

B

The law also seems clear that an order awarding attorney’s fees under Section 57.105, Florida Statutes (1979), must contain a finding that there was a complete absence of justiciable issue of either law or fact raised by the losing party. City of Miami Beach v. Town of Bay Harbor Islands, 380 So.2d 1112 (Fla. 3d DCA 1980). Such a finding, however, is implicit in an order which grants a motion for said fees based entirely upon the above statute. As such, the trial court herein made the required statutory finding when it granted the plaintiff GEICO’s motion for attorney’s fees based entirely upon Section 57.105, Florida Statutes (1979). The order is, accordingly, not subject to attack here for being technically defective.

Ill

The plaintiff GEICO has filed a cross appeal in this cause claiming that the trial court should have awarded an attorney’s fee here in the amount of $2,150 in accord with its specific finding that such a fee was a reasonable fee in this case, and that the trial court erroneously awarded an attorney’s fee in the amount of $833.33 in accord with the contingency fee contract between the said plaintiff and his attorney. We entirely agree.

The trial court was required by Section 57.105, Florida Statutes (1979) to set a “reasonable” attorney’s fee in this case, and, in that endeavor, could properly consider, as it did, the above contingency fee contract; the trial court, however, was in no way bound by said contract, as it felt it was, in setting such an award under the statute. As such, the trial court erred in failing to set an attorney’s fee award in accord with its prior finding as to a reasonable attorney’s fee in this case, to wit: $2,150. Universal Underwriters Ins. Co. v. Gorgei Enterprises, Inc., 345 So.2d 412 (Fla. 2d DCA 1977); see also Kaufman & Broad Home Systems, Inc. v. Sebring Airport Authority, 366 So.2d 1230 (Fla. 2d DCA 1979); Old Colony Ins. Co. v. Bunts, 250 So.2d 291 (Fla. 3d DCA 1971); Ronlee, Inc. v. P. M. Walker Co., 129 So.2d 175 (Fla. 3d DCA 1961).

We, accordingly, reverse the order under review on the cross appeal and remand the cause to the trial court with directions to enter an attorney’s fee award herein in the amount of $2,150.

Affirmed in part; reversed in part.

      . Travelers Indemnity Company has not taken an appeal from the third party final judgment.


text:
    COMMERCIAL CARRIER CORPORATION and Merchants Mutual Insurance Company, Appellants, v. INDIAN RIVER COUNTY and State of Florida, Department of Transportation, Appellees.
    No. 80-1378.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.

      Walsh, Theissen & Boyd and Gilbert E. Theissen, Fort Lauderdale, for appellants.
    Stephens, Lynn, Chernay & Klein and Robert M. Klein, Alan E. DeSerio and Ella Jane P. Davis and H. Reynolds Sampson, Tallahassee, for appellees.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

We affirm the trial court’s dismissal of those counts of a third-party complaint in which Commercial Carrier Corporation sought common law indemnity from Indian River County and the State of Florida, Department of Transportation. We hold that since any conceivable vicarious, constructive, derivative, or technical liability which Commercial Carrier Corporation might have to the plaintiff could arise only from the wrongdoing of Commercial Carrier’s employee, the fault or negligence of the County or State, if any, cannot be legally imputed to Commercial Carrier Corporation, and, therefore, no action for common law indemnity by Commercial Carrier Corporation against the County or State lies. Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979).

Affirmed.

      . This is a non-landmark sequel to Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). There the Florida Supreme Court held that the doctrine of sovereign immunity, the basis upon which the trial court had originally dismissed Commercial Carrier’s actions against the State and County, was no longer a bar and ordered the reinstatement of the actions.

      . The fault or negligence of the County or State, if shown, would render one or both of them joint tortfeasors responsible to Commercial Carrier Corporation for contribution, claims for which were left undisturbed by the trial court. If, of course, Commercial Carrier is found to be not liable at all to the plaintiff, then it has no claim under any theory against the State or County.


text:
    Murray FREUNDLICH, Appellant, v. SOUTH SEAS OPERATING CORPORATION, Appellee.
    No. 80-1681.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Rehearing Denied June 5, 1981.
    Joseph J. Glazer and David W. Singer, Hallandale, for appellant.
    Leland E. Stansell, Jr., and Douglas A. McDuff, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

An adjoining property owner has no duty to maintain a public sidewalk. Cantens v. Jeff-Son, Inc., 381 So.2d 307 (Fla.3d DCA 1980), Beattie v. City of Coral Gables, 358 So.2d 1131 (Fla.3d DCA 1978). Upon examination of the record and briefs there appears no genuine issue of material fact and defendant-appellee is entitled to a judgment as a matter of law. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Affirmed.


text:
    Daniel J. FINLEY and Dorothy Finley, Appellants, v. FOUNTAINEBLEAU HOTEL CORPORATION, Cosmopolitan Mutual Insurance Company, Appellees.
    No. 80-1752.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    James A. McSwigan, Palm Beach, Edna L. Caruso, West Palm Beach, for appellants.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The plaintiff was a guest at the Foun-tainebleau Hotel. He was injured when a taxicab he was entering at the front of the hotel, which had been summoned by a Fountainebleau employee, prematurely started before he had seated himself. We agree with the trial court that, as a matter of law, the hotel bore no liability for the accident. See, Jackson v. Pike, 87 So.2d 410 (Fla.1956); Foley v. Hialeah Race Course, Inc., 53 So.2d 771 (Fla.1951). The summary judgment entered in its favor below is therefore

Affirmed.


text:
    Walter OLSON, Appellant, v. Beverly OLSON, Appellee.
    No. 80-1786.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Keith, Mack, Lewis & Allison and Kim R. Blackman, Miami, for appellant.
    Solomon & Mendelow and Harold Mende-low, Miami Springs, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We affirm with one exception the post-decretal order of the trial court adopting, in toto, the Special Master’s report. The Special Master’s report requires Walter Olson to pay an amount of child support determined to be past due as a condition precedent to the exercise of child visitation rights accorded him. The imposition of this condition precedent is impermissible. Chaffin v. Grigsby, 293 So.2d 404 (Fla. 4th DCA 1974); Howard v. Howard, 143 So.2d 502 (Fla. 3d DCA 1962). Accord, Hechler v. Hechler, 351 So.2d 1122 (Fla. 3d DCA 1977). Cf. Dubocq v. Dubocq, 338 So.2d 67 (Fla. 3d DCA 1976) (court cannot condition husband’s right to temporary custody on failure to comply with each and every provision of final judgment of dissolution). See Yandell v. Yandell, 39 So.2d 554 (Fla.1949).

Affirmed in part; reversed in part, and remanded with directions to amend the order approving and adopting the Special Master’s report in accordance with this opinion.

      . The wife, relying upon Acker v. Acker, 365 So.2d 180 (Fla. 4th DCA 1979), argues that a court is empowered to condition the right to child visitation where there is a refusal to pay child support. Acker stands alone in its dicta that “a willful and intentional refusal to pay child support which is detrimental to the welfare of the child” is a basis for terminating child visitation rights. But its alien existence aside, it is inapplicable to a case, as here, where there is neither a showing nor finding of the husband’s obstinacy or ability to pay. Indeed, in the present case the Special Master recommended, and the court approved, a reduction in child support payments based on a substantial decrease in the husband’s earnings since the dissolution of the marriage in 1975.


text:
    COMMERCIAL AIR TRANSPORT SALES CORPORATION, Appellant, v. A. James LUNDBERG, David Lawrence Steed, Deveaux Clark and D. David Jarrell d/b/a American International Airways Ltd., a Delaware Corporation, Appellees.
    No. 80-1822.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager and Gary M. Farmer, Hollywood, for appellant.
    Wolff & Friedman and Julian R. Benjamin, Miami, for appellees.
    Before SCHWARTZ and FERGUSON, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   PER CURIAM.

The record conclusively demonstrates, as the trial judge correctly ruled by entering summary judgment on the issue, that under the plain and unambiguous terms of the agreement of the parties the appellees were entitled to the return of their deposit for the purchase of an aircraft. World Jet-Aircraft Industries, Inc. v. Allied International Ltd., 397 So.2d 1192 (Fla.4th DCA 1981). See, Aetna Casualty & Surety Co. v. Warren Bros. Co., Div. of Ashland Oil, Inc., 355 So.2d 785 (Fla. 1978); Font v. Lazarus Homes Corp., 339 So.2d 258 (Fla.3d DCA 1976); Second National Bank of Clearwater v. Westlake Development Corp., 329 So.2d 326 (Fla.2d DCA 1976).

Affirmed.


text:
    MIAMI NATIONAL BANK, a National banking association, Appellant, v. MIKANTO CONSTRUCTION CORPORATION and Magnus Construction Corporation, Appellees.
    No. 80-1849.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Myers, Kaplan, Levinson, Kenin & Richards and Thomas R. Spencer, Jr., Miami, for appellant.
    Howard J. Hollander, Miami, for appel-lees.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. White v. The Montebello Corporation, 397 So.2d 326 (Fla. 5th DCA 1981); see T. I. E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla.3d DCA 1980).


author: SHARP, Judge.

text:
    Trudy L. GASTINEAU, Appellant, v. STATE of Florida, Appellee.
    No. 80-697.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

This is an appeal from a judgment and sentence entered by the Circut Courit of Volusia County, Florida. The public defender has filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant.

Appellant entered a plea of nolo conten-dere to the charge of burglary of a structure, but she did not reserve the right to appeal any ruling by the trial court. Therefore she waived her right to appeal all matters relating to the judgment. Fla.R. App.P. 9.140(b)(1); Fla.R.Crim.P. 3.172(c)(iv). The^ record reflects no appeala-ble issues which occurred contemporaneously with the entry of the plea. See Robinson v. State, 373 So.2d 898 (Fla.1979).

Accordingly, the appeal is dismissed without prejudice to appellant to seek appropriate collateral relief in the trial court. In the Interest of: S. C. v. State, 388 So.2d 643 (Fla. 5th DCA 1980); Johnson v. State, 388 So.2d 621 (Fla. 5th DCA 1980).

The public defender’s motion to withdraw is hereby granted.

Appeal DISMISSED.

ORFINGER and COBB, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: COBB, Judge.

text:
    Tommy Lamar DUNN, Appellant, v. STATE of Florida, Appellee.
    No. 79-259.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

This is a timely appeal from an adjudication of guilt of the crime of robbery after defendant pled nolo contendere, specifically reserving the right to appeal the denial of motions to suppress. The defendant also attempts to appeal the legality of an order withholding imposition of sentence and placing defendant on probation for a period of twenty-five (25) years, with a special condition of probation that defendant serve ten (10) years in prison.

We have no problem in affirming the conviction. The cases of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and State v. Ashby, 245 So.2d 225 (Fla.1971), support the state’s position in respect to the legality of the stop and seizure of evidence. The case of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), supports the state in respect to the validity of the pre-trial identification procedures utilized in this case.

In regard to the sentence, the defendant asserts that the ten-year period of incarceration imposed as a condition of probation is violative of the rule postulated in Villery v. The Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981). This is true. Accordingly, the sentence is reversed and the cause remanded to the trial court for re-sentencing pursuant to the requirements of the Villery decision.

AFFIRMED in part; REVERSED in part; and REMANDED.

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


text:
    James TYSON, a/k/a Alfred McSwine, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2049.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Bennett H. Brummer, Public Defender and Lawrence Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

This is an appeal from an order of revocation of probation. The defendant was convicted and placed on probation for robbery and misdemeanor marijuana possession. An affidavit of violation of probation by possession of a controlled substance, carrying a concealed firearm, and possession of a firearm by a convicted felon was filed. At hearing on the affidavit of violation of probation, Officer Solaro testified that he submitted the substance he seized from the appellant for laboratory analysis and, over objection, he testified the laboratory analysis indicated the substance was cocaine. The officer also testified he seized a 22 caliber, four-shot Derringer from the appellant. Based thereon, the trial court found the appellant in violation of probation as charged, and sentenced him to 10-year concurrent sentences on each of the robbery and marijuana possession charges.

On appeal, the appellant challenges the sufficiency of the evidence to support revocation of probation in that the evidence as to the content of the controlled substance was hearsay evidence which, by itself, is insufficient to support the order appealed. The State also failed to prove the weapon was a firearm; thus revocation on this ground is not supported by the evidence. The appellant further contends the 10-year sentence on the misdemeanor marijuana charge is an illegal sentence.

We find no error and affirm on the authority of Bernhardt v. State, 288 So.2d 490 (Fla.1974); Russ v. State, 313 So.2d 758 (Fla.1979); Randolph v. State, 292 So.2d 374 (Fla.3d DCA 1974); Pinder v. State, 396 So.2d 272 (Fla.3d DCA 1981).

However, the sentence to 10 years’ imprisonment on the misdemeanor marijuana possession (less than 5 grams) is clearly erroneous and should be reversed.

The order revoking probation is affirmed; the sentence is set aside and the cause is remanded for resentencing.

Affirmed in part; reversed in part.


author: BASKIN, Judge.

text:
    Daisy R. MAYCOCK, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2182.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and NES-BITT, JJ.
   BASKIN, Judge.

We affirm the trial court’s denial of defendant’s motion to sever the charge of unlawful possession of a concealed weapon by a convicted felon from the charge of second degree murder. Better practice would permit the court to sever a charge which requires proof of a prior conviction in order to avoid depriving defendant of the presumption of innocence to which she is entitled. Since defendant argued only that the jury not be informed as to the nature of the prior conviction and even stipulated to the fact that she was a convicted felon, thereby enabling the court to refrain from informing the jury that the prior conviction was for another second degree murder, she may not be heard to complain on appeal. The joined offenses pertained to the same criminal episode, see Shargaa v. State, 102 So.2d 814 (Fla.1958), and the evidence against defendant was clear. Clark v. State, 378 So.2d 1315 (Fla. 3d DCA 1980).

The remaining point is without merit.

Affirmed.

      . At the hearing defense counsel stated:
      Without giving up our right to file an appeal on the motion to sever, you can consider a motion for rehearing. The basis is new case law and, without giving up that right, I would be willing to stipulate to the fact that she is a convicted felon.
      I can’t spite my client’s face by cutting off her nose.
      The defense thereby attempted simultaneously to waive and preserve the objection. The argument in the motion to sever was directed to the fact that informing the jury of the nature of defendant’s prior conviction would be prejudicial. The stipulation waived objection to the jury’s learning of the fact of the prior conviction, and that issue is not preserved for appellate review.


text:
    S. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-532.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Bennett H. Brummer, Public Defender and Deborah Whisnant, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The issue before us is whether a petition for delinquency was untimely filed and therefore subject to dismissal. Finding that it was, we reverse the order which denied the motion to dismiss and remand the cause with directions to discharge the juvenile from custody.

The juvenile was arrested on November 11, 1979. However, the sworn complaint, required by Section 39.03(4)(a), Florida Statutes (1979), was not filed until December 4, 1979. The petition for delinquency was filed within forty-five days from the date of the complaint as required by Section 39.05(6), Florida Statutes (1979) on January 8,1980. No motion was made to extend the time for filing of the petition as might have been made pursuant to Section 39.05(6), supra. Reasoning that Sections 39.03(4)(a) and 39.05(6), supra, must be construed as a whole, the defendant moved for dismissal on the theory that the amount of time which had elapsed from the date of the juvenile’s arrest to the filing of the petition for delinquency exceeded the maximum aggregate time allowed by the cited sections construed together, i. e., fifty-two days. The trial court denied the motion to dismiss and adjudicated the defendant on his nolo contendere plea from which this appeal has been pursued.

In construing the predecessor provision analogous to Section 39.05(6), supra, it has been settled that the timely filing of a petition for delinquency confers a substantive right. S. R. v. State, 346 So.2d 1018 (Fla.1977). In State v. G.D.C., 372 So.2d 514 (Fla. 3d DCA 1979), we determined that the predecessor provisions of the cited statutes should be construed as a whole so that a petition for delinquency filed beyond the aggregate time allotted under both provisions should be dismissed as untimely. As evidenced by the fact that G.D.C. was decided subsequent to that decision, we do not think that G.L.T., Jr. v. State, 366 So.2d 25 (Fla.1978) is contrary to this conclusion. While the supreme court held there that the predecessor to Section 39.03(4)(a) constituted only a procedural step in the juvenile process, non-compliance with which did not require reversal absent a showing of prejudice, G.L.T., Jr. apparently concerned only an immaterial delay in the filing of the complaint, which did not also involve, as here and in G.D.C., an extension beyond the total time provided after arrest for the filing of the petition. In this situation, “prejudice,” in the sense of an adverse effect upon the respondent’s substantive rights, does indeed appear. See S. R. v. State, supra.

For these reasons, we find G.D.C. controlling and consequently reverse and remand the adjudication of delinquency with directions to grant the motion to dismiss, and discharge the juvenile.

      . If the juvenile has been released, the complaint shall be filed within seven days excluding Saturdays, Sundays, and legal holidays.

      . “[T]he court may grant an extension of time not to exceed an additional 15 days upon such motion by the state attorney when, in the opinion of the court, such additional time is justified because of exceptional circumstances.”

      . In the calculation of the fifty-two-day-period, Saturdays, Sundays, and holidays which occur between the time of arrest and before the petition for delinquency is filed are excluded when counting the first seven days.

      . So far as the opinions of the supreme court and the fourth district in G. L. T., Jr. reveal, the petition may have been filed within a day or two after the sworn complaint, well within the total statutory time allotted.

      . J. W. H. v. State, 345 So.2d 871 (Fla. 1st DCA . 1977), with which conflict was found in G. L. T., Jr., concerned only the interplay between the predecessor to Sec. 39.03(4)(a) and the procedural rights involved under the juvenile speedy trial rule, Fla.R.Juv.P. 8.120. It is thus also decisively distinguishable from G. D. C. and the case at bar.


text:
    Charles BENTLEY, a/k/a Douglas Bentley, Appellant, v. The STATE of Florida, Appellee.
    No. 80-915.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Bennett H. Brummer, Public Defender and Thomas H. Connors, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The appellant was arrested inside a townhouse and was charged with burglary of a dwelling and grand theft, second degree. He ultimately pleaded guilty to the charges and was placed on probation for two years, with a condition thereof that he serve six months in the County jail. Upon being released from jail, some time during the probationary period he violated the terms of probation. An affidavit of violation of probation was filed; hearing was held thereon and the trial court found the appellant violated his probation. Thereupon, the trial court sentenced the appellant to seven years in the State penitentiary on the charge of burglary of a dwelling and suspended sentence on the grand theft charge.

On appeal, the appellant contends that the entire factual basis for acceptance of the guilty plea shows that the appellant broke into the townhouse of one Katherine Flynn; that, at the time of the burglary, the dwelling was unoccupied and the plea therefore was to a third degree felony. Maximum punishment for a third degree felony is five years (Section 775.082(3)(d), Florida Statutes) and, therefore, the trial court’s sentence to seven years in the State penitentiary is an illegal sentence.

The appellant’s point is totally without merit. He was charged with burglary of a dwelling and the factual basis of the plea supports this charge. Pursuant to Section 810.02(3), Florida Statutes (1977), burglary of a dwelling is a felony of the second degree punishment by a term of imprisonment not exceeding fifteen years. See: Section 775.082(3)(c), Florida Statutes (1977). Therefore, the sentence entered by the trial court is a legal sentence and not subject to reversal. Averheart v. State, 358 So.2d 609 (Fla. 1st DCA 1978).

Affirmed.


text:
    Richard LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1354.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Bennett H. Brummer, Public Defender and Lawrence J. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BASKIN and DANIEL S. PEARSON and FERGUSON, JJ.
   BASKIN, Judge.

We find no error in the trial court’s refusal to grant defendant’s motion for mistrial following the prosecutor’s inquiry on cross-examination of defendant concerning whether defendant, Richard Lewis, knew his friend was a convicted felon. The question was asked in response to defendant’s statement that he went to the roof of the pharmacy from which drugs had been removed through a hole and upon which he was discovered wearing gloves and running, not for the purpose of engaging in criminal activity, but to help his friend down. Although generally questions eliciting illegal acts by third persons are improper, Hirsch v. State, 279 So.2d 866 (Fla.1973); Armstrong v. State, 377 So.2d 205 (Fla.2d DCA 1979), we find that any error which may have been committed was harmless. Taking into consideration that the question was unanswered and that the court gave a curative instruction, see Johnson v. State, 393 So.2d 1069 (Fla.1980), under the facts and circumstances of this case, we find no violation of defendant’s right to a fair trial.

Affirmed.


text:
    Calvin MILLS, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Unemployment Appeals Commission, and Dade County CAA, Appellees.
    No. 80-1560.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Stephen Maher and Barbara Green, Legal Services of Greater Miami, Inc., Miami, for appellant.
    James R. Parks and Richard S. Córtese, Tallahassee, for appellees.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

The appellant seeks review of an order of the Unemployment Appeals Commission which affirmed a decision of an appeals referee denying him unemployment compensation benefits. He contends that this determination was erroneous because he left his employment for “good cause attributable to his employer” under Section 443.-06(1), Florida Statutes (1979). There is, however competent, substantial evidence in the record to support the finding that Mills quit his CETA job with Dade County, not in reaction to a supposedly unreasonable requirement imposed by his supervisor, but rather simply because he thought he had secured another position. Since this is true, this court may not set aside the referee’s resolution of the issue in question. Perez v. State, Department of Labor and Employment Security, 377 So.2d 806 (Fla.3d DCA 1979), and cases cited.

Affirmed.


text:
    The STATE of Florida, Appellant, v. Samuel JOHNSON, Appellee.
    No. 80-1903.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.

      Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Stuart Gitlitz, Special Asst. Public Defender, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

The state appeals from an order of the trial court dismissing an information filed against the defendant which charged him with false imprisonment in violation of section 787.02, Florida Statutes (1979). We have jurisdiction to entertain this appeal. § 924.07(1), Fla.Stat. (1979).

The defendant filed a motion to dismiss the information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), alleging that the material facts pertaining to the charges were undisputed, and that the undisputed facts did not amount to a prima facie case of guilt against him. In response, the state filed a sworn traverse specifically disputing the material allegations contained in the defendant’s motion. Fox v. State, 384 So.2d 226 (Fla. 3d DCA 1980); Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla.1977).

Following a hearing on the matter, the trial court entered an order dismissing the information and this appeal ensued. We reverse.

Rule 3.190(d) provides, in relevant part: A motion to dismiss under (c)(4) of this rule shall be denied if the State files a traverse which with specificity denies under oath the material fact or facts alleged in the motion to dismiss, (emphasis added).

Under this rule, when the material facts alleged in the defendant’s motion to dismiss are specifically denied by the state’s sworn traverse, as in the instant case, the trial court has no discretion in the matter and must deny the motion. State v. Wright, 386 So.2d 583 (Fla. 4th DCA 1980); State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980); State v. Power, 369 So.2d 96 (Fla. 2d DCA 1979); State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979); State v. Cook, 354 So.2d 909 (Fla. 2d DCA), cert. dismissed, 359 So.2d 1212 (Fla.1978); Ellis v. State, supra; State v. Hamlin, 306 So.2d 150 (Fla. 4th DCA 1975). In addition, viewing the allegations in the traverse most favorably to the state, State v. Davis, 243 So.2d 587 (Fla.1971); State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981); State v. De Jerinett, 283 So.2d 126 (Fla. 2d DCA), cert. denied, 287 So.2d 689 (Fla.1973), we conclude that there exists evidence upon which a jury of reasonable men could find the defendant guilty of false imprisonment. The motion should therefore have been denied and the evidence presented to the jury for resolution. State v. McCray, 387 So.2d 559 (Fla. 2d DCA 1980); State v. Smith, 376 So.2d 261 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980); State v. McIntyre, 303 So.2d 675 (Fla. 4th DCA 1974).

Accordingly, the order appealed is reversed and the case remanded for further proceedings.

Reversed and remanded.


author: DANIEL S. PEARSON, Judge.

text:
    PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellant, v. Charlene WYNN, as Guardian of Tarsha P. Wynn, a minor, Appellee.
    No. 80-2089.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Lane, Mitchell & Harris and C. Robert Murray, Jr., Miami, for appellant.
    No appearance for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Irene Wynn, insured by Prudential Insurance Company, designated her granddaughter, Tarsha, as the beneficiary under a life insurance policy and elected that the proceeds be paid to Tarsha in monthly installments over a period of years without any earlier right of withdrawal of the proceeds by the beneficiary. After Irene’s death, Tarsha’s guardian petitioned the probate court to order that Prudential pay the insurance proceeds to the guardian in lump sum. Despite Prudential’s objection that such an order contravened the terms of the insurance contract between it and the insured, the probate court ordered lump sum payment. Prudential appeals.

We reverse the order of the probate court upon a holding that where an insured in clear and unambiguous terms selects a method of payment to her beneficiary designed to effectuate her intention that her beneficiary receive the money over a period of years, a court cannot rewrite the contract between the insured and her insurer by ordering the insurer to disregard its contractual obligation to the insured and pay the money in a single lump sum payment. In re Nires, 290 N.Y. 78, 48 N.E.2d 268 (1943) (where insurance policy provided for accumulation of interest until age of 21, court was not empowered to vary insurance agreement by ordering immediate payment of accumulated interest needed to support the minor beneficiaries); Clover Leaf Casualty Company & Mutual Health & Accident Association of America v. Colburn, 206 Ill. App. 327 (1917) (where insurance policy called for monthly installments, court not empowered to order lump sum death benefits); McLaughlin v. Equitable Life Insurance Society of the United States, 112 N.J.Eq. 344, 164 A. 579 (1933) (where insurance policy called for proceeds to be held until minor beneficiaries attained 18th birthday, court not empowered to order earlier payment alleged to be needed for support and maintenance of minors). Accord, Vant v. Mutual Benefit Life Insurance Company, 262 F.2d 803 (3d Cir. 1959) (where policy called for interest to be paid to son and proceeds to son upon wife’s death, the insurance company was not holding funds as trustee so as to justify equitable intervention to abrogate the plain provisions of the contract). Cf. New York Life Insurance Company v. Conrad, 269 Ky. 359, 107 S.W.2d 248 (1937) (where policy provided proceeds to be held in trust for benefit of wife and children, court could not invade trust to pay proceeds to wife because it contravenes intent of insured). See also Home Development Company of St. Petersburg, Inc. v. Bursani, 178 So.2d 113 (Fla. 1965); Sepielli v. Wilson P. Abraham Construction Corp., 313 So.2d 122 (Fla. 3d DCA 1975); Sal J. Morgan Enterprises, Inc. v. 57th Avenue Development Corporation, 305 So.2d 18 (Fla. 3d DCA 1974); All Dixie Insurance Agency, Inc. v. Moffat, 212 So.2d 347 (Fla. 3d DCA 1968). This result is unaffected by the fact, assumed by the trial judge, that the money in the hands of Tar-sha’s guardian might earn far more interest for Tarsha than it would in the hands of Prudential. Notwithstanding that the trial court may have been benignly motivated, it was not empowered to violate the sanctity of Irene Wynn’s contract.

Reversed.

      . The language in the insurance policy is the best possible evidence of the intent of the contracting parties. Jacobs v. Petrino, 351 So.2d 1036 (Fla. 4th DCA 1976).

      . Of course, it is not dogma that a potentially higher interest is in the best interest of the child. Among other considerations are the safeguarding of the funds, concerns about profligate spending, and economic uncertainty.


text:
    Darrel CARNELL, Appellant, v. Suzanne M. CARNELL, Appellee.
    No. 80-244.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.

      William M. Barr of Raymond, Wilson, Conway, Barr, Burrows & Jester and Isham W. Adams of Adams & Briggs, Daytona Beach, for appellant.
    Michael R. Walsh, Orlando, for appellee.
   PER CURIAM.

This is an appeal from a judgment dissolving the marriage of the parties and incorporating the provisions of an antenup-tial agreement.

This was the third marriage for the wife and the fourth for the husband. Appellant-husband, who prepared and insisted upon the agreement, was an attorney. One would normally expect a man with so much practical and legal experience to be cautious and apprehensive about entering another marriage, especially one fortified and en-grafted with an agreement of devastating consequences. However, appellant, with single-minded determination, pursued ap-pellee. She was reluctant to marry again, explaining that she wanted to be sure that this would be a lasting marriage. To allay her fears and to assure her future, appellant prepared a prenuptial agreement which appellee typed verbatim from his draft. He insisted that she execute it although she apparently was then willing to marry him without the agreement.

Unfortunately, while the agreement provided for the eventuality of divorce, appellant apparently did not regard it as probable or even possible. The agreement provided that appellee would receive appellant’s interest in the home which he owned prior to the marriage and one-half of his disposable income and one-half of his retirement as alimony until she remarried. The eventuality became a reality after only two years when dissolution proceedings were begun by the wife. The agreement did not contain any protection for the husband should the marriage be short, that a prudent attorney would be expected to include. Little was required of the wife. Here, unfortunately, appellant can only blame himself for the poor advice of his attorney.

The leading cases in the area of antenup-tial agreements are Posner v. Posner, 233 So.2d 381 (Fla.1970), and Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962). In Del Vecchio, the Florida Supreme Court held that an antenuptial agreement will be upheld if:

1. The agreement contemplates a fair and reasonable provision for the spouse, or
2. Absent such a provision, a full and frank disclosure has been made to the spouse, or
3. Absent such a disclosure, the spouse has a general and approximate knowledge of the property of the spouse.

The case before us is unique in that it is the person who prepared and insisted upon the agreement who now urges its unfairness.

Appellant contends first that appellee fraudulently concealed the fact that her alimony was rehabilitative and was scheduled to terminate in September 1980 and that had he been aware her alimony was rehabilitative, rather than periodic, he would not have given the wife such a generous settlement as compensation for her loss of support upon their marriage.

An antenuptial agreement obtained by fraud or concealment may be set aside. Moss-Jacoberz v. Moss, 334 So.2d 89 (Fla.3d DCA 1976), cert. dismissed, 353 So.2d 676 (Fla.1977). However, the trial court specifically found no fraud or concealment. The finding of the trial judge is presumed correct and will be upheld if supported by substantial, competent evidence. Shaw v. Shaw, 334 So.2d 13 (Fla.1976). While there was a conflict in the testimony as to whether appellant read the provisions of the judgment dissolving appellee’s former marriage, there is no doubt that he saw it. If appellee’s representations as to the nature of her alimony were important to him, he had only to look because the judgment clearly, with emphasis, designates her alimony as rehabilitative.

Appellant also contends that the agreement should be set aside on the basis of undue influence and overreaching. He claims that appellee was the dominant party in the relationship, remaining “cool as a cucumber” while he was “swept off his feet.” He is correct that the parties to an antenuptial agreement do not deal at arm’s length and therefore must exercise a high degree of good faith and candor in their dealings. Del Vecchio, 143 So.2d at 21; Lutgert v. Lutgert, 338 So.2d 1111 (Fla.2d DCA 1976). The trial court found, and we agree, that the evidence does not support appellant’s position. Appellee testified that she was afraid to marry a third time, that she was satisfied with her life style, that appellant suggested the idea of an antenup-tial agreement to protect her interests and to insure financial security for herself and her four children, and that she did not ask for the agreement. She further testified that he stated the agreement was valid and would protect her in the event the marriage did not work out, that he said he could be trusted, and that she did not have to be afraid, that he was a lawyer and a judge and that he knew how to draft such agreements. He also encouraged her to review it with an attorney of her own choosing.

The husband also contends that the agreement is so unfair and unreasonable that it must be set aside. Where one party has overreached the other and gained an unjust and undeserved advantage which would be inequitable to enforce, the courts may refuse to enforce the agreement even though the victimized parties owe their predicament largely to their own stupidity and carelessness. Peacock Hotel v. Shipman, 103 Fla. 633, 138 So. 44 (1931). “The freedom to contract includes the right to make a bad bargain.” Posner at 536. The controlling question here is whether there was overreaching and not whether the bargain was good or bad. Had the wife given up a large alimony entitlement, given the husband an expensive house, and waived all right to alimony or other property upon divorce as part of an agreement prepared by husband, an attorney, a case of overreaching might arise. In such a case, the very unfairness and the superior position of the procuring party would raise a presumption of overreaching. Lutgert at 1115. In the instant case, however, the procuring party and the one with superior knowledge and experience asked the trial court to set aside the agreement because his prize turned out to be brass rather than pure gold. While appellant may have been overeager, he was not overreached.

Appellant also maintains that appel-lee evidenced an intent to abandon the agreement by failing to pay for all of the remodeling work. Had the wife abandoned or repudiated the agreement, the appellant would be correct. Plant v. Plant, 320 So.2d 455, 457 (Fla.3d DCA 1975).

The antenuptial agreement provided that:

The wife agrees that she will contribute such portion of her separate estate as may be reasonably required to complete the remodeling and refurbishing of the marital home. (Emphasis added.)

The parties do not agree as to what they intended by the word “portion.” The wife’s estate was comprised of $20,000 to $25,000 in assets. She contributed $4,000 in cash to the remodeling job which ultimately cost $29,350, an amount which considerably exceeded both parties’ estimates. While the wife refused to contribute more to the remodeling, contending that her assets came from the sale of her home and that husband did not expect her to give up all she had, she did, however, express a willingness to execute a bank loan. She explained her refusal to join in a note to his mother by stating that she thought it improper for husband to require his eighty-three year old mother to sell stocks in which she had invested and to accept a low interest note. When appellant went ahead and borrowed the money and secured it with a mortgage (which only he executed) on the home, ap-pellee, after the separation, continued to make the payments and offered to continue making them. There is nothing to indicate that this was not sufficient compliance with her agreement to contribute a “portion” of her estate.

Appellant further contends that he was denied due process because, as a result of the suggestion of counsel for the wife, the trial judge required the parties to be searched for firearms prior to trial. The record reflects that counsel for husband announced he had no objection. Also, no motion to disqualify the trial judge was made. See Trawick’s Florida Practice and Procedure § 2-3 (1979). This point cannot be raised for the first time on appeal. Palmer v. Thomas, 284 So.2d 709 (Fla. 1st DCA 1973).

Lastly, appellant contends that he was denied due process with regard to certain orders concerning rehearing, stay, superse-deas, and support provisions during this appeal because the orders were entered without an opportunity to the parties to present oral argument. As to the motions for stay and supersedeas, the trial court granted appellant’s motion so his position that reversible error was committed by failing to give him an opportunity to appear has no basis.

As to the motion for rehearing, we find that the Florida Rules of Civil Procedure do not specifically provide for a hearing. In Seaboard Coast Line Railroad Co. v. Magnuson, 288 So.2d 302 (Fla. 4th DCA 1974), the court held that when one of the parties to an adversary proceeding files a timely motion for a new trial under rule 1.530, due process requires a hearing after notice to all parties. In that case, the court held that error was harmless as all matters in the motion had been previously argued during the course of the trial. In Alberger v. Harvison, 342 So.2d 537 (Fla.3d DCA 1977), the court found that the error, if any, in failing to hold a hearing on a post-trial motion was harmless as no new matter was raised in the motion that had not already been argued before the trial judge. The court, however, noted that a thorough examination of the rules of civil procedure found no language requiring a hearing and, while recognizing the due process argument in Seaboard, refused to comment on its correctness. Both of these cases involved jury trials. Rule 1.530(e) points out that when an action has been tried before the court without a jury, a motion for rehearing is unnecessary to question on appeal the sufficiency of the evidence to support the judgment. We therefore conclude that the requirement of a hearing in a non-jury case is less compelling than in a jury trial. However, even if a hearing is required (we agree with the court in Alberger and find no such requirement in the rule), appellant’s motion for rehearing contained no matters with merit that had not been previously argued to the court during trial.

AFFIRMED.

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

      . In In Re Estate of Reed, 354 So.2d 864 (Fla. 1978), the supreme court pointed out that the standards established in Del Vecchio and its progeny have been supplanted by section 732.-702, Florida Statutes (1975). While it can be argued that the statute is only applicable to probate matters, see Topper v. Stewart, 388 So.2d 1270 (Fla.3d DCA 1980), it is difficult to comprehend a rule which would hold the standard applicable to probate provisions of the agreement and inapplicable as to the other provisions. In the instant case, however, the trial court did not base its decision on the statute but held that there was “no fraud, no concealment, no coercion, no overreaching” and that the agreement was based on adequate consideration.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Clifford Joseph MILLIKEN, Appellant, v. STATE of Florida, Appellee.
    No. 80-889.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant was charged by a four count information with sexual battery upon a person eleven years of age or younger which is a capital felony under section 794.011(2), Florida Statutes (1979).

Section 794.011(2) provides:

A person 18 years of age or older who commits a sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony punishable as provided in §§ 775.082 and 921.141. . .. (Emphasis added.)

Article I, section 15(a), Florida Constitution, provides:

No person shall be tried for capital crime without presentment or indictment by a grand jury... .

The state contends that appellant’s crimes involved a “normal” sexual battery situation and that imposition of the death penalty was therefore impermissible. See Purdy v. State, 343 So.2d 4 (Fla.1977), thus making the crime non-capital and obviating the need to proceed by indictment.

Article I, section 15(a), clearly prohibits any person from being tried for a capital crime without presentment or indictment by a grand jury. Lowe v. Stack, 326 So.2d 1 (Fla.1975); State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974). This is so notwithstanding the fact that defendant never faced nor in fact was sentenced to death. Howard v. State, 385 So.2d 739 (Fla. 3d DCA 1980); Bradley v. State, 374 So.2d 1154 (Fla. 3d DCA 1979).

A trial under an information charging a capital felony is void and the adjudication and sentence must be reversed. Howard v. State. Appellant’s failure to move to dismiss the information either before or during trial is not fatal since the defect affected the jurisdiction of the circuit court to proceed to trial. Bradley v. State; Hunter v. State, 358 So.2d 557 (Fla. 4th DCA 1978).

Appellant’s trial and conviction are void and the adjudication must be REVERSED.

SHARP and COWART, JJ., concur.


author: LETTS, Chief Judge.

text:
    STATE of Florida, Appellant, v. Ken REITANO and Jay Maturo, Appellees.
    No. 80-932.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant.
    Patrick Rastatter and Hilliard Moldorf, Fort Lauderdale, for appellees.
   LETTS, Chief Judge.

The State appeals a discharge granted under the speedy trial rule because an earlier trial court’s order extending speedy trial (so the State could appeal) was entered (1) ex parte, and (2) prior to the actual filing of the notice of appeal. We reverse on both issues.

This is one of those instances where resourceful lawyers have successfully fought off drug charges against their clients for nearly three years without the matter ever coming to trial. It all began when the defendants were charged with criminal conspiracy to deliver cannabis in excess of one hundred pounds. At that time, the defense successfully persuaded the trial judge as to the unconstitutionality of one of the statutes involved and the information was dismissed. The dismissal was appealed directly to the Supreme Court by the State and the trial judge’s ruling was reversed and the cause remanded. See State v. Allen, 380 So.2d 1035 (Fla.1980).

The foregoing factual recitation also provided the scenario for the instant appeal inasmuch as the State, pursuant to the former appeal, secured an extension of speedy trial time in order to apply for relief in the Supreme Court which it did with complete success. Upon remand from the Supreme Court the defense then attacked the extension, long since obtained to facilitate the former appeal to the Supreme Court, upon the premise that it was obtained (1) ex parte, and (2) prior to the actual filing of the notice of the original appeal to the said Supreme Court. Once again the trial court agreed with the defense and granted the motion for speedy trial discharge. Once again the State now appeals the trial court’s ruling, this time to the district court and once again the State wins on appeal.

Considering the points now before this court, we hold first that no error was committed in granting the extension ex parte under the instant set of facts.

The defendants contend that the time was not validly extended because dismissal of an information is not an exceptional circumstance pursuant to Florida Rule of Criminal Procedure 3.191(d)(2)(H) which appears to permit the court to extend the speedy trial rule time on an ex parte motion. However in the last few days our Supreme Court, in State v. Carter, 397 So.2d 679 (Fla.1981), determined that the State’s appeal of a trial court’s ruling which abated a case pending a Supreme Court decision on whether a statute is unconstitutional is an exceptional circumstance. We feel the same result pertains here. This conclusion is supported by another Supreme Court case, State ex rel. Girard v. McNulty, 348 So.2d 311, 312 (Fla.1977) where the court upheld the right of appeal from the dismissal of an information and remarked: “the extension order is valid despite its ex parte nature.”

Turning next to the question of which comes first, the extension order or the notice of appeal, we are of the opinion that the latter need not precede the former.

It is true that Florida Rule of Criminal Procedure 3.191(d)(2) might appear to presuppose an appeal already filed, but we agree with the State that there is no rule or statute which requires that the notice of appeal be filed prior to the motion for an extension, nor can we perceive any reason why it should. The State will still have to timely file the appeal and we can discern no prejudice to the defendant. Nor are we unmindful of the very purpose of the speedy trial rule. It is supposed to prevent unfortunate defendants from languishing in jail and we will not subvert its purpose to promote those accused of crime from escaping the day of reckoning, unless, of course, we are specifically so directed by the rules or decisions handed down to us from our highest court.

Case law also supports this view. Most recently the Third District in State v. Jogan, 388 So.2d 322 (Fla.3d DCA 1980) saw no barrier to an extension before the notice of appeal. Moreover the Supreme Court in State v. Barnett, 366 So.2d 411 (Fla.1978), indicated that “the extension of the speedy trial limits during the pendency of appellate proceedings is similar to the provision in Florida Appellate Rule 9.310, authorizing stays pending appellate review.” At 416 note 6. Since Florida Appellate Rule 9.310 does not require the filing of a notice of discretionary review prior to a motion for staying the mandate, the State contends that any speedy trial extension order should likewise be held in abeyance until the filing of the notice of appeal. We agree and note that, if the appellate court dismisses the notice of appeal, the extension order would, under its terms, be dissolved.

Accordingly, we hold the defendant has not demonstrated that his right to a speedy trial was prejudiced by the granting of the extension motion prior to filing the Notice of Appeal. State v. Jenkins, 389 So.2d 971 (Fla.1980).

The trial court is herewith reversed and this cause remanded for further proceedings.

REVERSED AND REMANDED.

DOWNEY and MOORE, JJ., concur.


text:
    In the Interest of S. M., a child, Petitioner, v. The Honorable Sam McCORMACK, as Superintendent of the Broward Regional Detention Center, The Honorable Linda L. Vitale, as Circuit Judge of the Seventeenth Judicial Circuit, Respondents.
    No. 81-442.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1981.
    Alan H. Schreiber, Public Defender, and Edward Salantrie, Asst. Public Defender, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for respondents.
   PER CURIAM.

This is a habeas corpus proceeding in which the petitioner, S.M., a child, seeks discharge from the custody of the respondent, the Superintendent of the Broward Regional Detention Center.

On January 5, 1981, the State filed a petition for adjudication of delinquency, charging that S.M., on December 4, 1980, had committed a battery in violation of Section 784.03(1), Florida Statutes (1979). S.M. pleaded nolo contendere to the charge, and the circuit court deferred disposition and adjudication until March 4, 1981. At the March 4th hearing the court, among other things, withheld adjudication and placed S.M. in a program of community control. In addition, the court directed that, as one condition for placing S.M. in a community control program, S.M. would “stay in detention” until 5 p. m., March 7, 1981. The Public Defender thereupon urged that the detention would be illegal because the court had placed S.M. in a community control program; however, the court refused to change its detention requirement.

At 4:29 on Friday, March 6, 1981, the Public Defender filed a Petition For Emergency Writ of Habeas Corpus, which set forth the foregoing facts, argued that the detention was without statutory support, and asked this court to (1) issue a writ of habeas corpus directing the respondents to show cause why S.M. should not be released, and (2) issue an opinion “proscribing detention after disposition of children placed on community control.” This court immediately entered an order that directed (1) the respondents to show cause by March 19, 1981, why S.M.’s petition should not be granted, and (2) that S.M. “be discharged from custody forthwith, subject to further detention in the event that habeas corpus relief is ultimately denied.”

On March 13th the Attorney General, on behalf of the respondents, filed a response to the order to show cause. That response set forth that S.M. had been released from detention on March 7th and the request for release was therefore moot; in addition, the response asked this court to dismiss the petition for mootness.

The release of S.M. on March 7th did render the habeas corpus petition moot. Nonetheless, because the propriety of the detention of children, such as S.M., who have been placed in community control is a question of public interest involving the duties and authority of juvenile court judges, we have determined to treat the merits of S.M.’s petition. Ervin v. Capital Weekly Post, 97 So.2d 464 (Fla.1957); Wilson v. Newell, 223 So.2d 734 (Fla.1969); State ex rel. Gissendanner v. Leatherman, 237 So.2d 820 (Fla. 3rd DCA 1969).

The question with which we deal is whether judges of the juvenile division of the circuit court, as a condition of community control, may properly order the detention of a child in a governmental facility after the court has properly ordered the child to be placed in community control. We answer the question in the negative.

Section 39.01(10), Florida Statutes (1979), defines “community control” as:

“the legal status of probation created by law and court order involving a child who has been found to have committed a delinquent act. Community control is an individualized program where the freedom of the child is limited and the child is restricted to noninstitutional quarters or restricted to the child’s home in lieu of commitment to the custody of the department [of Health and Rehabilitation] in a training school, halfway house, or other residential program of the department.” (Emphasis added.)

Section 39.11(l)(a), Florida Statutes (1979), provides as follows:

“Powers of disposition
(1) When any child shall be adjudicated by the court to have committed a delinquent act, the court having jurisdiction of the child shall have the power, by order in which is stated the facts upon which a determination of a sanction and rehabilitative program was made at the disposition hearing to:
(a) Place the child in a community control program under the supervision of an authorized agent of the department or any other person or agency specifically authorized and appointed by the court, either in the child’s own home or, if the prospective custodian is willing, in the home of a relative of the child or in some other suitable place under such reasonable conditions as the court may direct. A community control program is as defined in s. 39.01(10) and shall include a penalty such as restitution, curfew, revocation or suspension of the driver’s license of the child, or other nonresidential punishment appropriate to the offense and a rehabilitative program. (Emphasis added.)

The foregoing statutes not only do not permit judges of the juvenile division to order a child it has placed in community control to be detained in a governmental facility, they implicitly proscribe such detention.

Accordingly, but for the fact this matter is now moot, we would issue a writ of habeas corpus and order S.M. released from detention in the governmental facility. However, since S.M. has already been released from detention we dismiss the petition because it is moot.

DOWNEY, MOORE and HERSEY, JJ„ concur.