author: GRIMES, Judge.

text:
    Richard TENNEY, Appellant, v. STATE of Florida, COMMISSION ON ETHICS, Appellee. STATE of Florida, COMMISSION ON ETHICS, Appellant, v. Richard TENNEY, Appellee.
    Nos. 80-1296, 80-1415.
    District Court of Appeal of Florida, Second District.
    March 25, 1981.
    John T. Blakely of Johnson, Blakely, Pope, Bokor & Ruppel, P. A., Clearwater, for Richard Tenney.
    Jim Smith, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., and Philip C. Claypool, Staff Atty., Commission on Ethics, Tallahassee, for State of Florida Commission on Ethics.
   GRIMES, Judge.

Richard Tenney appeals from an order of the trial court upholding the constitutionality of section 112.313(6), Florida Statutes (1979). By cross-appeal, the State of Florida Commission on Ethics challenges another part of the same order which struck its finding of probable cause.

Mr. Tenney was an elected public official serving as a city commissioner in Clear-water. On February 18, 1980, a complaint was filed with the Commission on Ethics which charged that Tenney had violated the following provision of section 112.313, Florida Statutes (1979):

(6) MISUSE OF PUBLIC POSITION.
—No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

After its staff had conducted an investigation into the complaint, the Commission on Ethics met in executive session on June 18, 1980, and determined that there was probable cause to believe that Mr. Tenney had violated the provisions of section 112.-313(6). On June 24, the commission issued a written finding of probable cause which read, in pertinent part:

Based upon the preliminary investigation of this complaint, the Commission on Ethics finds that there is probable cause to believe that Respondent, a member of the Clearwater City Commission, violated Part III of Chapter 112, Florida Statutes, and more specifically, Section 112.313(6), Florida Statutes, by Respondent’s use of his position as Clearwater City Commissioner to obtain a meeting with Congressman “Tip” O’Neill and obtain removal of political signs of his electoral opponents and other special privileges and benefits from others.

That same day, Tenney filed a complaint for declaratory and injunctive relief, challenging the constitutionality of section 112.-313(6) and seeking to prevent the commission from pursuing its case against him.

Subsequently, Mr. Tenney filed a motion for temporary injunction. After a hearing, the court issued an opinion in which it found that section 112.313(6) was constitutional. However, despite the fact that Mr. Tenney himself did not make such a claim, the court ruled that the Commission on Ethics’ procedure whereby it reached its finding of probable cause in an ex parte proceeding was an unconstitutional denial of due process. The court struck the finding of probable cause and ordered the commission to appoint an administrative hearing officer to conduct a preliminary hearing on the complaint against Tenney. Both parties filed appeals from the court’s order, and we have consolidated them for the purposes of our consideration.

In the trial court and here, Mr. Ten-ney has based his argument that section 112.313(6) is unconstitutional on the fact that the Supreme Court of Florida declared its predecessor statute, section 112.313(3), Florida Statutes (1973), unconstitutional in State v. Rou, 366 So.2d 385 (Fla.1979) (England, C. J., and Sundberg and Alderman, JJ., dissenting). Section 112.313(3) stated that:

No officer or employee of a state agency, or of a county, city or other political subdivision of the state, or any legislator or legislative employee shall use, or attempt to use, his official position to secure special privileges or exemptions for himself or others, except as may be otherwise provided by law.

In finding that statute to be impermissibly vague, the supreme court said:

The statute is unconstitutionally vague and leaves its enforcement to the whims of prosecutors. It does not “convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.” State v. Lindsay, 284 So.2d 377, 379 (Fla. 1973). The terms “special privileges or exemptions” afford one no guidelines, no “ascertainable standard of guilt,” Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 102 (1947), no barometer by which a public official may measure his specific conduct.

366 So.2d at 385. While section 112.313(6) is similar to former section 112.313(3), there have been two notable changes which, when considered together, have removed the taint of impermissible vagueness found by the supreme court. Accordingly, we hold that section 112.313(6) is constitutional.

The first change is not in section 112.313(6) itself but arises from the fact that the legislature has repealed that part of section 112.317, Florida Statutes (1973), which made a violation of section 112.313 a criminal offense punishable as a first-degree misdemeanor. When there is a vagueness challenge to a statute, a court must impose a higher standard of definiteness where a violation of the statute would bring about a criminal penalty as contrasted to a civil one. Thus, the supreme court, in considering a challenge to a criminal statute concerning malpractice in office, said in State v. Wershow, 343 So.2d 605, 610 n.l (Fla.1977), “[W]e perceive the test to be much less severe where the maximum penalty is loss of an office or position. Penal statutes must meet a higher test of specificity.” This being the case, we can now look at the second change knowing that we need not hold section 112.313(6) to the same standard that the supreme court held its predecessor.

The second change comes in the addition of the word “corruptly” to section 112.-313(6). Corruptly is defined in section 112.-312(7), Florida Statutes (1979), to mean “done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties.” We believe that the word “corruptly” as thus defined so limits the term “special privileges or exemptions,” which the Rou court found overly vague, that the statute now conveys the sufficiently definite warning of forbidden conduct to a person of common understanding which our notions of due process require. Similar reasoning was employed to reject the challenge to the extortion statute in Carricarte v. State, 384 So.2d 1261 (Fla.), cert. denied, -U.S.-, 101 S.Ct. 215, 66 L.Ed.2d 95 (1980). There the supreme court stated that, “Just as the elements of malice and intent prevent overbroad application of the statute, they lend sufficient clarity to provide adequate notice of the proscribed activity to persons of ordinary intelligence and understanding.” 384 So.2d at 1263. Accord, Adderley v. Florida, 385 U.S. 39, 42-43, 87 S.Ct. 242, 244-45, 17 L.Ed.2d 149, 153 (1966); Sandstrom v. Leader, 370 So.2d 3, 6 (Fla.1979).

Were we to find the statute unconstitutional as it is presently worded, we would effectively be saying that in order to prohibit the type of conduct which the legislature has sought to prohibit, it would have to specifically list every “special privilege, benefit, or exemption” it wished to prevent a public officer from securing. Such a requirement would be impossible, and our constitutions do not demand it.

To deny to the Legislature the power to use generic descriptions if pressed to its logical conclusion would practically nullify legislative authority by making it essential for the Legislature to define all the specific instances to be brought within the statute. As the United States Supreme Court said in Smith v. Goguen, 415 U.S. 566, 581, 94 S.Ct. 1242, 1251, 39 L.Ed.2d 605 (1974):
There are areas of human conduct where by the nature of the problems presented legislatures simply cannot establish standards with great precision.

State v. Dye, 346 So.2d 538, 542 (Fla.1977).

We must now deal with the commission’s contention that the court erred in ruling that its procedure for determining probable cause was inadequate to provide Mr. Tenney with due process of law and that an adversary hearing on the complaint was necessary prior to a finding of probable cause. We hold that the court erred in so ruling. The commission followed the procedure prescribed in section 112.324, Florida Statutes (1979). The court cited no authority for the proposition that this section is constitutionally deficient, and we can find none. What appeared to worry the court was that the commission would be in a position to rubberstamp frivolous complaints against public officials. The court said:

The Petitioner herein had an absolute right to be present at the preliminary consideration of the complaint against him, and to be heard and to present witnesses at that time and place. Without that opportunity to hear the public official’s version, and being presented only with a written complaint buttressed by the verbal acknowledgment of the same complainant, the Commission would have no alternative except to find probable cause. This would subject every well-intended public official to the whim of every misinformed malcontent loose in the land. It is greatly unfair to require every public official to walk the middle of the street in the full light of public view, but allow him to be fired upon from ambush.

We do not believe the court’s concern to be a valid one. In the first place, section 112.-324 requires that the complaint be sworn. Moreover, it requires that the commission inform the public official of the complaint, and it mandates that the commission undertake an investigation before deciding the question of probable cause. This is what happened here. The commission’s investigators interviewed many witnesses, including Mr. Tenney himself, and its staff put together a report thoroughly detailing the evidence and the conclusions which could be drawn from that evidence.

In Haines v. Askew, 368 F.Supp. 369 (M.D.Fla.1973), aff’d., 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974), a school teacher sought declaratory and injunctive relief against the state board of education contending that a rule which set forth the parameters of a probable cause hearing deprived him of due process under the fourteenth amendment to the United States Constitution. The three judge federal court held that a civil accusatory hearing is not per se tantamount to an adjudicatory hearing and that an investigatory hearing need not supply an individual with the right of apprisal, confrontation, and cross-examination in order to avoid a due process violation.

The fact that the Commission on Ethics does not hold a hearing, as such, in the course of determining probable cause does not diminish the fact that its proceedings directed toward deciding whether probable cause exists are investigatory in nature and not adjudicatory. To impose the requirement to hold an adversary hearing prior to its initial determination of probable cause would add a useless layer of procedure since a defendant in any proceeding before the commission may, at his request, receive a public hearing following a determination of probable cause. § 112.324(2), Fla.Stat. (1979). In its rules the commission has prudently acknowledged the adjudicatory character of the public hearing by according the defendant the customary due process rights associated with hearings of this nature. Fla.Admin.Code Rules 34-10.19 to .22.

There is some similarity in the procedure followed by the commission in making its finding of probable cause and that used by a state attorney in preparing to file an information or a grand jury in determining whether or not to return an indictment. No one would suggest that these officials should be required to hold an adversary hearing before filing an information or indictment. Cf. Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960), in which the court analogized the proceedings of a grand jury to those of the Civil Rights Commission in rejecting the contention of persons who were the subjects of the commission’s investigation that they were entitled to the due process rights available in adjudicatory proceedings.

Accordingly, while we affirm the trial court’s ruling that section 112.313(6) is constitutional, we reverse that part of the court’s order striking the commission’s finding of probable cause. We remand the case for further proceedings consistent with this opinion.

BOARDMAN, Acting C. J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: CAMPBELL, Judge.

license: Public Domain

text:
    SUN FIRST NATIONAL BANK OF LAKE WALES and Russ Fulton, Appellants, v. David STEGALL, Appellee.
    No. 80-1492.
    District Court of Appeal of Florida, Second District.
    March 25, 1981.
    Lynn H. Groseclose, Jacobs, Valentine, Groseclose & Miller, P. A., Lakeland, for appellants.
   CAMPBELL, Judge.

Sun First National Bank of Lake Wales brought suit to collect money which it claimed that David Stegall, Suzanne Stegall and S & A Enterprises, Inc., d/b/a Dave’s Motor Sales, owed to it. It alleged that the debts resulted from notes and guaranties executed by the Stegalls and Dave’s Motor Sales, Mr. Stegall’s used car business, and from sums remaining due under a dealer floor plan arrangement whereby it advanced Dave’s Motor Sales up to $50,000 for inventory stock. Mr. Stegall filed a two count counterclaim against the bank. The first count alleged the breach of a duty of secrecy which resulted from a telephone call made by a Russ Fulton, an employee of Sun, to an employee of the American Bank of Lake Wales which also had a floor plan arrangement with Dave’s Motor Sales. The second count alleged that Fulton slandered Stegall during the telephone conversation, thereby interfering with and injuring his used car business.

The court heard the case without a jury and then found for Sun on its claims. However, it also found that Fulton’s telephone call was a breach of Sun’s duty of secrecy and awarded Mr. Stegall $8,000 in damages plus costs. Sun now appeals from this award. Mr. Stegall, as appellee, has not appeared of record or filed briefs and his failure to support the court’s findings, even though they come to this court with a presumption of correctness, has caused us increased difficulties in making a proper disposition of this appeal. However, we have carefully examined both the testimony and the arguments presented to the court below regarding the breach of duty issue, and we are confident that the result we have reached is a correct one.

The testimony regarding Fulton’s telephone conversation varied. Glenda Johns, the representative of the American Bank who was a party to the conversation, testified she received the call from Mr. Fulton between two and three years prior to the final hearing in June 1980. Fulton, whom Sun employed in March 1977, testified that the call came to him from a female employee of American Bank in November 1977. Mr. Stegall testified that Mrs. Johns contacted him within ten minutes of the call on the day that it was made in early January 1978. Seen in a light least favorable to Sun’s position, the conversation consisted of statements by Fulton that Sun was repossessing Stegall’s automobiles covered by Sun’s floor plan.

Mr. Stegall argued that at the time Fulton made the statements they were in fact false. However, he failed to show that the statements caused him any damage. He testified that American Bank’s floor plan arrangement was still the same as it was at the time of the telephone conversation. It did decline to extend its credit limits as he had asked, but he also testified that he did not seek further floor plan financing with any other bank. He claimed that he did $200,000 less business the year after the call was made, yet he did not connect the loss of business with the telephone call. Conversely, he testified that he lost $280,000 in gross business between 1976 and 1977 which was before the call. The only other element of damage he alluded to allegedly came from Sun’s refusal in July 1977 to refinance, or “roll-over,” $10,000 worth of automobiles he had paid off in June 1977. He seemed to claim that because he was deprived of this $10,000 by not being able to refinance with Sun, his business suffered losses. However, this too was prior to the complained of telephone call, and it is important to note that Sun’s floor plan arrangement was terminable at will.

In support of his duty of secrecy theory, Mr. Stegall cited a number of early English cases, cases from other states, and Milohnich v. First National Bank of Miami Springs, 224 So.2d 759 (Fla.3d DCA 1969), to the trial court. Those cases all concerned an implied contractual duty of a bank not to disclose information concerning depositors’ accounts to individual third parties. They did not, however, address the issue of whether there is a similar duty of secrecy by a bank to a commercial loan customer so as to prevent the exchange of credit information between banks having common loan debtors. We need not address this question either, because, as we have noted above, there is no evidence in the record of a causal relationship between the telephone call and any damage that appellee asserts.

We reverse the judgment for appellee and remand the case for treatment consistent with this opinion.

SCHEB, C. J., and OTT, J., concur.


author: PER CURIAM.

text:
    Vivienne BROWN and Arthur Brown, Appellants, v. Eugene TAN, a minor child by and through his father Yang Seng Tan, Appellee.
    No. 81-238.
    District Court of Appeal of Florida, Third District.
    March 26, 1981.

      Levine, Reckson, Reed & Geiger and Allen P. Reed, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and John R. Kelso, Miami, for appellee.
    Before HENDRY and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

This appeal is from an order of the trial court granting a petition of habeas corpus and directing the return and production of a twelve-year old child, Eugene Nicolas Tan, to his natural father, Yang Seng Tan, from the possession of his natural mother, Vivienne Brown, and her husband, Arthur Brown. In its order the trial court held that it was without jurisdiction to determine or award custody to appellants, Vivienne and Arthur Brown, under Sections 61.1308(l)(c)(l) or (2), Florida Statutes (1979), the Uniform Child Custody Jurisdiction Act. The order stated that since it was stipulated that Florida is not the home state of Eugene, jurisdiction does not obtain absent abandonment or an emergency. It was further stipulated that the child was not abandoned. The trial court found no proof of an emergency as would vest the court with jurisdiction to decide custody and ordered immediate delivery of Eugene to Tan for return to Eugene’s home in Singapore. We affirm.

Eugene Nicholas Tan is a minor child and a citizen and resident of the Republic of Singapore where he has lived and resided with his natural father, Yang Seng Tan, continuously from his birth to the present. The father is also a citizen and resident of the Republic of Singapore. Vivienne Brown, the natural mother and former wife of Tan, left Singapore in 1974 and pursuant to agreements between the couple, the custody of Eugene remained with Tan. On October 13, 1976, the Circuit Court of Dade County, Florida entered a final judgment for a dissolution of marriage dissolving the bonds of matrimony between Tan and Vivienne. Since the Florida court was without jurisdiction as to the child, there was no determination of custody.

On November 12, 1980, Tan and Eugene left their home in Singapore for an extended tour of the Far East, Hawaii and California with the intention of traveling to Miami for a holiday visit with the mother Vivienne Brown. On November 20, 1980, Eugene was put on a plane to Miami from Los Angeles with the understanding that the boy’s custody would remain with Tan, that the boy would continue to retain his residence and citizenship in his homeland and that he would return to his father on or about December 5, 1980. Vivienne and her new husband, Arthur Brown, subsequently refused to relinquish custody and possession of Eugene and to permit his return to Singapore. Eugene is presently enrolled in Dade Christian School.

Appellants argue that the court has jurisdiction to award custody under Sections 61.1308(l)(c)(2), 61.1308(l)(d), and 61.-1308(l)(b) Florida Statutes (1979).

Under the terms of Section 61.-1308(l)(c)(2) an “emergency” vests jurisdiction if it is necessary “to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected.” There is simply no evidence in this case which would support such a finding of abuse or neglect by the father. See Costantino v. Costantino, 386 So.2d 1274 (Fla.3d DCA 1980) (no competent proof that children had been abandoned or neglected). See, e. g., Hegler v. Hegler, 383 So.2d 1134 (Fla.5th DCA 1980) (remanded for determination of neglect where mother’s friend indulged in excessive drinking of alcohol and smoking of marijuana in the presence of the children).

Appellant’s argument that the court has jurisdiction under Section 61.1308(l)(d) must also fail because there is no showing that Singapore has no jurisdiction or has declined to determine custody of a citizen and resident of its country for twelve years and there is no proof that a change in the living arrangements is in the best interest of the child. See Robertson v. Bass, 52 Fla. 420, 42 So. 243 (1906) (after four years court will not disturb status quo where there is no showing that interest of children demand change). See also Brown v. Brown, 388 So.2d 623 (Fla.4th DCA 1980); Trujillo v. Trujillo, 378 So.2d 812 (Fla.3d DCA 1980); Scarpetta v. DeMartino, 254 So.2d 813 (Fla.3d DCA 1971), cert. denied, 409 U.S. 1011, 93 S.Ct. 437, 34 L.Ed.2d 305 (1972).

Similarly, appellant’s argument that the trial court has jurisdiction because it is in the best interest for the child under Section 61.1308(l)(b), must fail for lack of proof that it is in fact in Eugene’s best interest because the requirement of “significant connection” with Florida is not met. Except in cases of abandonment, abuse, or neglect, physical presence in the state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination. § 61.-1308(l)(a). See Jackson v. Jackson, 390 So.2d 787 (Fla.1st DCA 1980). A significant connection may not be found on the basis of “home,” where there is no question that the Republic of Singapore is Eugene’s home, and not Florida. See, e. g., Hegler v. Heg-ler, supra. Nor does the fact that the original divorce decree was granted in Florida support jurisdiction, Matteson v. Matteson, 379 So.2d 677 (Fla.2d DCA 1980). Eugene has not lived the majority of his life in Florida, Hofer v. Agner, 373 So.2d 48 (Fla.1st DCA 1979); nor has Eugene frequently visited his mother in Florida, Reeve v. Reeve, 391 So.2d 789 (Fla.1st DCA 1980). The initial custody of the father was not wrongful and without consent of the mother, Mondy v. Mondy, 395 So.2d 193 (Fla.1st DCA 1981). We also reject as without merit the argument of the mother that a significant connection can be found between the child and this state based on the child’s interest in properties owned by her. § 61.-1308(1)(b).

Furthermore, where the natural mother has maintained custody of the child after agreeing to return the child to the father after the visit, the court may in its discretion decline jurisdiction by reason of wrongful conduct. § 61.1318(1), Fla.Stat. (1979). See, e. g., Howard v. Howard, 378 So.2d 1329 (Fla.5th DCA 1980) (no evidence that wife acted in any way improperly in securing custody of child as contemplated by Section 61.1318). The effect of assuming jurisdiction to determine child custody after there has been a wrongful taking or detention may be the encouragement of child snatching. The practice is abhorred and the legislature has seen fit to provide for the assessment of attorney’s fees, costs and expenses in appropriate cases where a petition is dismissed under this section. § 61.1318(3).

Although the trial court correctly determined that it was without jurisdiction to determine custody of Eugene under Chapter 61, Laws of Florida (1979), the court properly, by means of the writ of habeas corpus, ordered the return of possession of Eugene so as to restore the status quo. See Crane v. Hayes, 253 So.2d 435 (Fla.1971) (as a general rule, a habeas corpus proceeding is an independent action, legal and civil in nature, designed to secure prompt determination as to the legality of a restraint in some form.... there is no question but that habeas corpus is a proper proceeding to obtain custody of a child wrongfully withheld).

The order of the trial court for immediate delivery of possession of Eugene to his natural father Yang Seng Tan for a return to Eugene’s home in the Republic of Singapore, is affirmed.

THE COURT WILL NOT ENTERTAIN A MOTION FOR REHEARING.

      . Section 61.1308(l)(d) provides “it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), paragraph (b), or paragraph (c), or another state has declined to exercise jurisdiction on the ground that this state is a more appropriate forum to determine the custody of the child," and (2) “it is in the best interest of the child that a court of this state assume jurisdiction.” See also Section 61.1348 providing that the general policies of this act extend to the international arena.


author: SHIVERS, Judge.

text:
    Andrew J. DICKERSON, Appellant, v. Peggy J. DICKERSON, Appellee.
    No. TT-170.
    District Court of Appeal of Florida, First District.
    March 27, 1981.

      James W. Middleton of Middleton & Mead, Fort Walton, for appellant.
    Roy E. Campbell, Shalimar, for appellee.
   SHIVERS, Judge.

. This is an appeal from a final judgment of dissolution of marriage. We affirm all portions of the judgment except the $3,000 attorney fee awarded to appellee. The Circuit Court erred in awarding a fee to appel-lee for her attorney’s services because there was no evidence as to the reasonableness of the fee award. Johnson v. Johnson, 382 So.2d 799 (Fla. 1st DCA 1980); Snider v. Snider, 375 So.2d 591 (Fla. 3d DCA 1979).

Therefore, the attorney fee award is reversed and remanded to the Circuit Court for the taking of further evidence.

Additionally, we provisionally grant the motion of appellee for a reasonable attorney fee award on account of her attorney’s services on appeal. Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977). The case is remanded to the Circuit Court for a determination of the amount of a reasonable fee, if any, that appellant should be required to pay because of disparity in the parties’ needs and abilities to pay.

AFFIRMED in part, REVERSED in part, and REMANDED.

ERVIN and LARRY G. SMITH, JJ., concur.


text:
    WESTERN ELECTRIC CO., INC., Appellant, v. Edward E. DUVALL, Appellee.
    No. VV-304.
    District Court of Appeal of Florida, First District.
    March 27, 1981.

      Clair P. White, Mark A. Norden and Reed A. Bryan, of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellant.
    David F. Roemer, Coral Gables, and Jerold Feuer, Miami, for appellee.
   LILES, WOODIE A. (Retired), Associate Judge.

The employer/carrier appeals a workers’ compensation order contending, among other things, that the deputy commissioner erred in merging the claimant’s compensa-ble orthopedic injury with his nervous and coronary conditions. After carefully reviewing the record, we agree and reverse.

On May 11, 1976, the claimant suffered a compensable injury to his right shoulder, right arm, lower back and right leg while trying to get some 70-pound coin collectors down off a rack. Viewed in the light most favorable to the claimant, the record also reveals that he had pre-existing nervous and coronary problems. He testified that he had developed anxiety due to on-the-job harassment in 1974. He further averred that in 1974 he had also developed coronary problems which were mistakenly diagnosed as gout and/or stomach problems. In any event, he returned to work after his orthopedic injury on May 17, 1976, and went back to his regular duties approximately one week later. However, on September 9, 1976, he developed an anxiety neurosis which he attributed to on-the-job harassment. This, he says, forced him to cease working, and he has not returned to work since that time. Several months later, in January, 1977, his coronary problems were properly diagnosed as such, and he has been undergoing suitable treatment for them since that time.

Merger results from a showing that the subsequent compensable injury either enhances or is enhanced by a pre-exist-ing condition to cause pain, loss of efficiency, or other involvement of a portion of the body which is not within the scope of the disability caused independently by the subsequent injury. See Chaffee v. Miami Transfer Company, Inc., 288 So.2d 209 (Fla. 1974); Division of Corrections v. Smith, IRC Order 2-3362 (February 22, 1978). Here, however, there is no evidence whatsoever that the claimant’s coronary and nervous conditions were aggravated or accelerated by his compensable orthopedic injury, or that the subsequent orthopedic injury is itself enhanced by his pre-existing conditions. In fact, claimant himself admits there is no relationship between his orthopedic problems and his coronary and nervous conditions. Thus, it follows that only the independent progression of these conditions after the accident was affecting the claimant at the time of the award. See Poston Bridge & Iron v. Newcombe, IRC Order 2-3363 (February 22, 1978), cert. denied, 365 So.2d 713 (Fla.1978). Therefore, the deputy commissioner erred in finding a merger and in awarding him permanent total disability benefits. Our resolution of this issue disposes of the claimant’s cross-appeal.

The employer/carrier also argues, and the claimant agrees, there is no competent, substantial evidence to support the deputy commissioner’s finding that Dr. Johns’ examination was necessary for a determination of the claimant’s injuries and, therefore, the responsibility of the employer/carrier. Accordingly, this provision is stricken from the deputy commissioner’s order. We find no merit in the remaining issue on appeal.

AFFIRMED IN PART, REVERSED IN PART and REMANDED for further proceedings consistent with this opinion.

SHIVERS and WENTWORTH, JJ., concur.


author: SHIVERS, Judge. JOANOS, Judge,

text:
    Patricia Morris GOLDEN, Appellant, v. Alton Ray GOLDEN, Appellee.
    No. WW-142.
    District Court of Appeal of Florida, First District.
    March 27, 1981.
    James M. Barton, II, of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for appellant.
    T. Sol Johnson, of Johnson, Green & Westmoreland, P.A., Milton, for appellee.
   SHIVERS, Judge.

Appellant Patricia Morris Golden appeals a final judgment of marriage dissolution, contending, among other things, that the trial court erred in awarding her rehabilitative alimony rather than permanent periodic alimony.

We reverse as to the rehabilitative alimony, but affirm the other points on appeal.

Here, an award of rehabilitative alimony for 12 months, instead of permanent periodic alimony, is an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). The appellant was 16 years of age when the parties were married 23 years ago. She has only a tenth grade education and is in poor physical condition. At the husband’s wish and by their agreement she has devoted her married life endeavors to him, their children and their home. Her intervals of employment during the marriage have been limited and family sheltered. The record does not establish the appellant wife’s capacity or potential for self-support and the husband has the ability to pay permanent alimony.

We reverse the award of rehabilitative alimony with directions to convert the award of $400 per month rehabilitative alimony to an award of $400 per month permanent periodic alimony.

AFFIRMED in part, REVERSED in part and REMANDED.

McCORD, J., concurs.

JOANOS, J., concurs in part and dissents in part, with written opinion.

JOANOS, Judge,

concurring in part and dissenting in part.

I dissent from the majority in their decision to reverse the award of rehabilitative alimony and convert it into an award of permanent periodic alimony. The final judgment should be affirmed in its entirety.

In Canakaris v. Canakaris, 382 So.2d 1197, 1202-1203 (Fla.1980), the Florida Supreme Court through Justice Overton addressed itself to the test for reviewing a trial court’s discretionary powers. In doing so, that court cited with favor the following standard from Delno v. Market Street Railway Company, 124 F.2d 965, 967 (9th Cir. 1942):

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

I submit that as to the record before us, “... reasonable men could differ as to the propriety of the action taken by the trial court .... ”

As to the medical condition of the appellant and her ability to find employment, there were a variety of conclusions that could have been reached by the trier of the facts. My review of the medical evidence does not require a conclusion that the appellant was not medically able to work. There was evidence that during the marriage and despite any medical problems, the appellant had operated a book store and oversaw much of the operation of a grocery store. Further, there was evidence that the appel-lee had encouraged the appellant to work during the marriage but that for other than medical reasons she did not desire to work. In short, I believe that the evidence presented allowed the trial judge to reasonably conclude within his lawful discretion that the appellant had sufficient training, skills or ability to enable her to become self-supporting within a reasonable time if she so desired. The trial court’s decision to award rehabilitative alimony instead of permanent alimony should not be disturbed.


text:
    CARRUTH ROOFING COMPANY and Liberty Mutual Insurance Company, Appellant, v. Frank MACK, Appellee.
    No. XX-120.
    District Court of Appeal of Florida, First District.
    March 27, 1981.
    Robert H. Gregory, Miami, for appellant.
    J. M. Levy of Silver & Levy, Miami, for appellee.
   PER CURIAM.

The Deputy Commissioner ordered that Mack be paid temporary total disability benefits as long as he remains disabled. We amend the order to state that TTD benefits should continue as long as Mack remains totally disabled.

The order appealed from is otherwise AFFIRMED.

MILLS, C. J., JOANOS, J., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.


text:
    INTERNATIONAL CHEMICAL WORKERS UNION, LOCAL 328, Appellant, v. ARIZONA CHEMICAL COMPANY, Appellee.
    No. XX-362.
    District Court of Appeal of Florida, First District.
    March 27, 1981.
    Dedee S. Costello, Panama City, for appellant.
    John A. Bussian, III and Richard Smoak, of Isler, Brown, Smoak & Watson, Panama City, for appellee.
   SHIVERS, Judge.

Defendant Union appeals from a final judgment of contempt entered against a union member. We reverse.

Pursuant to the parties' stipulated statement of proceedings under Fla.App.R. 9.200(a)(3), the pertinent facts are as follows: In August 1979, the International Chemical Workers Union, Local 328 (Union) began a strike against the Arizona Chemical Company (Company). On August 27, 1979, the circuit court entered a temporary restraining order, enjoining the Union from committing or threatening to commit acts of violence, trespass, or damage against the Company. On August 30,1979, the Company filed a motion for sanctions against the Union and C. E. Roberson, Jr., a union member, alleging a violation of the August 27 temporary injunction and providing notice of hearing to the Union and Roberson. On August 31, 1979, the circuit court entered an order continuing the hearing on the motion for sanctions and issued an order to show cause against the Union and Roberson. After several cancelled and rescheduled hearings, final hearing was held on June 24, 1980. On July 9, 1980, the circuit court found Roberson in contempt of court for violating the terms of the temporary injunction and sentenced him to 90 days in jail unless he purged the contempt by paying the Company a fine and costs of $575.

According to the parties’ stipulation, Roberson “was never made a party to this action, nor was any further order to show cause ever issued, nor was [he] afforded any notice of hearing whatsoever, nor was he a witness at the hearing, nor was he present at the hearing or represented by counsel.”

We conclude the judgment of contempt must be reversed because Roberson was not provided notice and an opportunity to meet the charges against him. Due process of law requires that a party accused of indirect contempt be advised of the charge and afforded an opportunity to defend himself. In re: S.L.T., 180 So.2d 374 (Fla. 2d DCA 1965); Deter v. Deter, 353 So.2d 614 (Fla. 4th DCA 1977); Dykes v. Dykes, 104 So.2d 598 (Fla. 3d DCA 1958); State v. Sullivan, 26 So.2d 509 (Fla.1946). It was the contemnor, Roberson, and not the Union, who was personally found to be in contempt for violating the temporary injunction. However, according to the parties’ stipulation, Roberson was not a party to the action below, did not receive personal notice of the final hearing, and was not present at the hearing or represented at the hearing by counsel. Since fundamental due process requires an individual be given notice of hearing and an opportunity to be. heard before he is deprived of liberty or property, the judgment of contempt must be reversed.

Therefore, the judgment is reversed and remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

WENTWORTH, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: OTT, Judge.

text:
    Dennis Ray HALL, Appellant, v. STATE of Florida, Appellee.
    No. 78-626.
    District Court of Appeal of Florida, Second District.
    March 27, 1981.
    Jerry Hill, Public Defender, Paul C. Helm, Asst. Public Defender, and David Wm. Boone, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Two uniformed sheriff’s deputies went to appellant’s home to talk with the residents about misdemeanors which had occurred several days previously. One deputy went into the fenced backyard and there observed (1) marijuana plants growing near a shed, and (2) other marijuana plants growing in pots inside the house in the dining room window. The other deputy went to the front door, knocked and was invited to enter. Once inside, he saw the plants on the windowsill and recognized them as marijuana. All the plants were then seized.

After his motion to suppress was denied, appellant entered a plea of nolo contendere to a charge of manufacturing cannabis. This appeal challenges the suppression ruling on the ground that the deputy who first spotted the plants had no legal right to be in appellant’s backyard, and therefore the seizure of the plants was invalid under our Morsman decision, now approved by the Florida Supreme Court. State v. Morsman, 394 So.2d 408 (Fla.1981).

We affirm the judgment and sentence. What appellant says about the activities of the first deputy may well be true, yet that in no way alters the fact that the plants inside the house were in plain view of the deputy who was invited to enter. True, it was appellant’s home, but “what a person knowingly exposes to the public, even in his own home or office, is not a subject of fourth amendment protection.” Katz v. United States, 389 U.S. 347, 351, 89 S.Ct. 507, 511, 19 L.Ed.2d 576, 581-82 (1967). The contraband was in plain sight of a uniformed officer legally entitled to be in the viewing position. He had not only a right but a duty to seize it.

The evidence taken from inside the house amply supports the judgment. It may be that the plants taken from the backyard should have been suppressed, but any error in that regard was harmless because that evidence was merely cumulative and clearly unnecessary to the judgment. Section 924.-33, Florida Statutes; Ross v. State, 202 So.2d 582 (Fla. 1st DCA 1967).

Affirmed.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.


text:
    Clinton METZGER and Cecil Whitaker, Appellants, v. The STATE of Florida, Appellee.
    No. 79-2371.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    Mark King Leban, Miami, Mechanic & Goldstein, North Miami, Rosen, Pórtela, Bronis, Angueira & Clay, Miami, for appellants.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

We reverse the conviction of defendant Whitaker on the ground that the state failed to establish his constructive possession of the marijuana found aboard the “Excuse Me.” Whitaker was shown only to be a passenger on a vessel owned and operated by his co-defendant; neither the odor of the marijuana contained in the forward cabin, nor the slight amount (less than a handful) of marijuana scattered over the vessel’s deck (where Whitaker was situated) was sufficient circumstantial evidence of Whitaker’s knowledge and ability to control the contraband to exclude every reasonable hypothesis except that of guilt. Harvey v. State, 390 So.2d 484 (Fla. 4th DCA 1980).

We affirm defendant Metzger’s conviction, because we find that his motion to suppress was properly denied. The arresting officers appropriately stopped the “Excuse Me.”

Affirmed in part, and reversed in part.


text:
    Anthony STANLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-86.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Russ v. State, 313 So.2d 758 (Fla.), cert. denied, 423 U.S. 924, 96 S.Ct. 267, 46 L.Ed.2d 250 (1975); Bernhardt v. State, 288 So.2d 490 (Fla.1974); Cioeta v. State, 367 So.2d 718 (Fla.3d DCA 1979); Randolph v. State, 292 So.2d 374 (Fla.3d DCA 1974).


text:
    Jacqueline GIRARDI, Appellant, v. The STATE of Florida, Appellee.
    No. 80-538.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    John H. Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

We affirm on the authority of State v. Frost, 374 So.2d 593, 597 (Fla.3d DCA 1979), and Bailey v. State, 319 So.2d 22, 27 (Fla. 1975).

Affirmed.


author: BASKIN, Judge.

text:
    Dawna Michele BERLIN, Appellant, v. Jerome C. BERLIN, Appellee.
    No. 80-737.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.

      Brumer, Cohen, Logan & Kandell and Kenneth R. Duboff, Miami, for appellant.
    Cypen & Nevins and Wayne A. Cypen, Miami Beach, for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Upon consideration of the appeal and cross-appeal, we affirm the order denying appellant attorney’s fees in connection with child custody hearings conducted after final judgment had been entered by the trial court. In the absence of a specific reservation of jurisdiction for that purpose in the final judgment, the court lacks jurisdiction to award attorney’s fees. Oyer v. Boyer, 383 So.2d 717 (Fla. 4th DCA 1980); Church v. Church, 338 So.2d 544 (Fla. 3d DCA 1976); Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976).

Furthermore, appellant is precluded from seeking attorney’s fees by her failure to request them in her petition for change of custody. McCallum v. McCallum, 364 So.2d 97 (Fla. 4th DCA 1978); Reardon v. Reardon, 355 So.2d 207 (Fla. 1st DCA 1978). We therefore find no error in the court’s failure to conduct a hearing on that issue.

Affirmed.


author: SCHWARTZ, Judge.

text:
    Joan FIESLER, n/k/a Joan Radford, Appellant, v. David D. FIESLER, Appellee.
    No. 80-1083.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.

      K. Neil Glassford, South Miami, for appellant.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   SCHWARTZ, Judge.

In a 1976 property settlement agreement incorporated into the judgment of dissolution, the appellee-husband agreed, without stated limitation, to pay the “cost of private school expenses” for his two children, who were placed in the custody of his ex-wife. After he nevertheless declined to meet $5,694.56 in charges for the 1979-1980 school year at the Gulliver Academy, the mother moved to enforce the pertinent provision of the agreement. Mr. Fiesler resisted the motion on the grounds that, at the time of the agreement, the parties “contemplated” school costs of between $1,000-$1,-500 per year and that the mother had unjustifiably attempted to multiply his obligations by enrolling the children in a vastly more expensive institution. The trial judge denied the expenses claimed in their entirety. We reverse.

The husband did not, and could not, allege that the choice of Gulliver was beyond the authority of the mother as the children’s custodian. See Bennett v. Bennett, 73 So.2d 274 (Fla.1954). Nor did he contend that he was financially unable to pay the tuition required by that school, so as perhaps to justify a modification of the agreement accordingly. See Osman v. Osman, 280 So.2d 67 (Fla. 3d DCA 1973), cert. denied, 289 So.2d 6 (Fla.1973). Under these circumstances, he was bound by his clear, unambiguous and unqualified undertaking to pay the full amount of the bills in question. Jaffee v. Jaffee, 394 So.2d 443 (Fla. 3d DCA 1981) (holding it improper to vary terms of property settlement agreement “through the insertion of qualifying language which does not appear on its face”); Adler v. Adler, 391 So.2d 242 (Fla. 3d DCA 1980). The order under review is therefore reversed and the cause is remanded with directions to grant the appellant’s “motion for payment of private school expenses.”

Reversed.

      . This ruling is difficult to understand since, even under the husband’s position, he would have been liable for at least the $1,500 he “contemplated” would be paid.


text:
    Clarence Harry JOHNSON, Appellant, v. RCA CORPORATION and The Travelers Insurance Company, Appellees.
    No. 80-1147.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    David Goldman and Jack H. Cohen, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Cuadrado & Parks and Gail Sosby Krieger, Miami, for appellees.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Failure to seek leave of court or written consent of adverse party to amend complaint prior to dismissal with prejudice and failure to then move for a rehearing requesting leave to amend, precludes raising issue for first time on appeal. Fla.R.Civ.P. 1.190(a); Hohenberg v. Kirstein, 349 So.2d 765 (Fla. 3d DCA 1977) citing Margolis v. Klein, 184 So.2d 205 (Fla. 3d DCA 1966); Ely v. Shuman, 233 So.2d 169 (Fla. 3d DCA 1970).


text:
    Benjamin SPENCER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1237.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    Bennett H. Brummer, Public Defender and Frederick S. Robbins, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

This is an appeal from an order of the Circuit Court of Dade County denying appellant’s motion to correct sentence.

The appellant was convicted of nine various crimes after entering pleas of guilty. Sentence was imposed as follows:

The imposition of sentence be stayed and withheld and you be placed on probation and released into the custody of the Florida Probation and Parole Commission for a term of ten (10) years, subject to terms and conditions to be set forth by further order of this Court. Provided, however, that as a condition of probation you be imprisoned by confinement at hard labor in the State Penitentiary for a term of six (6) years, credit to be given you for time served in the Dade County Jail prior to sentencing, to-wit: one (1) day.

Subsequently an affidavit of violation of probation was filed. Based thereon, the court entered an order of modification of probation as follows:

That the probation be extended to 12 years with a special condition that the subject serve 8 years S. P. [in the “State Penitentiary”] as of 6-11-79.

The appellant filed a motion to correct sentence pursuant to Rule 3.800 Florida Rules of Criminal Procedure which was denied.

It is appellant’s contention in this appeal that the trial judge erred in imposing eight years' incarceration in the state prison as a special condition of twelve years of probation. We agree that the court erred in denying the motion to correct the sentence.

A lengthy prison term which has the effect of precluding parole before the term expires should not be imposed as a condition of probation.

In Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980), our Supreme Court has held that a probation condition of incarceration which equals or exceeds one year is invalid. Accord, Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981); Rodriguez v. State, 390 So.2d 143 (Fla. 3d DCA 1980).

Accordingly, we reverse the six year term of imprisonment imposed as a condition of probation and remand for resentenc-ing in accordance with Villery, supra.

Affirmed in part; reversed in part.


text:
    CITY OF MIAMI, Appellant, v. James Edward DALRYMPLE, Rita West Dalrymple, his wife, and Jack Drew Baumann, Appellees.
    No. 80-1658.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    George Knox, Jr., City Atty., and Joseph Hackney, Jr., Asst. City Atty., for appellant.
    James V. Johnstone, Miami, for appellees.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Cook Motor Company v. Vaughn, 189 So.2d 536 (Fla.1st DCA 1979); Alfar Creamer Company v. Williams, 366 So.2d 458 (Fla.4th DCA 1979); Right v. Capeletti Brothers, 384 So.2d 1302 (Fla.4th DCA 1980); Section 440.39(3)(a), Florida Statutes (1977).


text:
    ERO PROPERTIES, INC., a New York corporation authorized to transact business within the State of Florida, Appellant, v. Jay CONE et al., Appellees.
    No. 80-1772.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.

      William E. Shockett, Miami Beach, for appellant.
    Cohen, Angel & Rogovin and Terrence S. Schwartz, North Miami, for appellees.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

This appeal from a non-final order determining that Count IV of the complaint can be maintained as a class action, but reserving for later ruling the “nature and existence of the Plaintiff class,” is dismissed upon a holding that the order appealed, unlike an order defining the class and its members, see Kohl v. Bay Colony Club Condominium, Inc., 385 So.2d 1028 (Fla. 4th DCA 1980), does not determine jurisdiction of the person and is not, therefore, nor otherwise, appealable under Florida Rule of Appellate Procedure 9.130, see American Heritage Institutional Securities, Inc. v. Price, 379 So.2d 420 (Fla. 5th DCA 1980) (rejecting the defendant-appellant’s apparently singular contention that a determination that the allegations of the complaint are sufficient to sustain a class action determines an issue of liability in favor of a party seeking affirmative relief and is thus an appealable non-final order).

Appeal dismissed.


text:
    James BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-245.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    James Brown, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

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


text:
    James FERGUSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-508.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    James Ferguson, in pro per.
    Jim Smith, Atty. Gen., for appellee.
    Before BASKIN and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

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


author: DOWNEY, Judge.

text:
    Lee NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-1382.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, Miami, and Martin James Schwartz, Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant, along with two co-defendants, Weisz and Fuller, was charged in a four count Information with drug related offenses. From a judgment and sentence based upon a plea of nolo contendere reserving the right to appeal, appellant seeks reversal predicated upon double jeopardy grounds.

After a jury was sworn and the trial commenced, the State indicated its intention to introduce certain statements made by appellant. Counsel for Weisz and Fuller argued that the statements were inadmissible against them but if they were to be introduced their cases should be severed from appellant’s case. During a lengthy colloquy between the court and counsel, appellant also moved for a severance, stating:

MR. SCHWARTZ: For the record, let me also move for a severance on behalf of the defendant Nelson if they intend to bring in statements of Weisz and Fuller to the detriment of defendant Nelson.

After making the foregoing motion further argument was had by all counsel. The court then asked appellant’s counsel if he had anything further to add. The response was: “I have no further argument on the severance, Your Honor.” The trial court then announced it would grant all-of the motions for severance, let Weisz remain the sole defendant in the pending trial, and continue the severed case of appellant and Fuller. Subsequent thereto the State nolle pressed the Information against appellant and Fuller and filed a new Information against them. The only difference between the new Information and the old one was the elimination of the conspiracy count, which the court had dismissed before the first trial started, and the elimination of Weisz as a co-defendant. Appellant moved to dismiss the new Information on various grounds, among them double jeopardy. The trial court denied said motion, appellant pled nolo, and from the judgment and sentence appellant perfected this appeal.

Appellant contends that his case was severed without his consent contrary to Florida Rule of Criminal Procedure 3.152(b)(1)(h) and, since the jury had already been sworn, jeopardy attached and he could not again be subjected to a prosecution on the offenses charged.

We have carefully considered appellant’s contention and argument in support thereof, but find it unconvincing. On the contrary, we hold that appellant moved for a severance and got it, thus it was consensual. Granted he moved for a severance if the State was going to offer appellant’s statements. But he allowed his motion for severance to remain viable throughout the colloquy between the court and counsel and, when called upon to comment further, he remained silent. When the court announced it would grant all of the motions for severance, counsel again remained silent. In the face of appellant’s motion and counsel’s subsequent silence it ill behooves appellant to now assert the severance of his case was without his consent.

Finally, the new Information filed had no change therein from the first Information that would in any way prejudice appellant.

Accordingly, we find no error demonstrated in the judgment appealed from.

AFFIRMED.

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


author: MOORE, Judge.

text:
    Lillie B. PAYNE, as personal representative of the Estate of Dorothy Payne and Jacylyn Payne, Appellants, v. PALM BEACH COUNTY, Appellee.
    No. 79-1601.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.

      Thomas A. Hoadley, of Hoadley & Gavi-gan, P. A., West Palm Beach, for appellants.
    Edna L. Caruso and Paxton, Crow, Tap-lin & Bragg, West Palm Beach, for appel-lee.
   MOORE, Judge.

The plaintiff, as personal representative of the estates of her deceased daughters, appeals an adverse summary judgment in appellee’s favor in a wrongful death action. We affirm.

The undisputed facts show that the deceased daughters were passengers in an automobile which was traveling in a northerly direction on Sam Senter Road. Sam Senter Road ends at its intersection with Airport Road which runs east and west. Paralleling Airport Road on the north is a canal. Upon approaching the “T” intersection, the driver apparently failed to see, or heed, signs of the approaching intersection. Approximately 1165 feet south of the intersection were two signs, one indicating “Stop Ahead” and the other indicating a speed limit of 25 miles per hour. At approximately 210 feet south of the intersection there was a sign indicating a “T" intersection ahead, and finally, a “STOP” sign was located 42 feet south of the intersection. The signs were visible and readily observable, and met State requirements for traffic control devices. Notwithstanding the visibility of the signs and that the vehicle was being driven during daylight hours, the vehicle went through the intersection, came to rest totally submerged in the canal, and the passengers drowned.

The appellant contends that the County was guilty of negligence by failing to warn motorists that Sam Senter Road did not continue north of Airport Road and by failing to continue the pavement northerly. She also argues that the County had a duty to erect a guard rail in front of the canal to stop vehicles whose drivers fail to see the stop sign.

As to the first of appellant’s contentions, the undisputed facts clearly show that the duty to warn was met with the placement of signs meeting more than the minimal requirements of the “State Manual for Traffic Control Devices”. As to the second contention that the County should have extended the pavement or erected a guard rail, we are controlled by Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Whether to extend a road or build a guard rail are classic examples of the type of planning level policy decisions which remain in the protected sphere of sovereign immunity. See also, Ferla v. Metropolitan Dade County, 374 So.2d 64 (Fla. 3rd DCA 1979).

The final summary judgment is affirmed.

ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    Samuel Leon LINE, Appellant, v. STATE of Florida, Appellee.
    No. 79-2067.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.

      J. David Bogenschutz of Varón & Stahl, P. A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Line appeals from a judgment of guilty of dealing in stolen property and a five year prison sentence, both entered pursuant to a negotiated plea of nolo contendere and a reservation of the right to question on appeal the denial of his motion to suppress.

The police obtained a warrant to search a Ford Van suspected of being stolen. The affidavit described what is referred to as a “Salvage Switch” operation whereby a thief is enabled to obtain a valid motor vehicle title certificate, registration, and license plate for a car that has been junked. The vehicle identification plate of the junker is then transferred to a stolen vehicle of similar make and model. The affidavit states that, as a result of that process, Line had been engaged in selling stolen motor vehicles in Pompano Beach, Florida, and various cities in Illinois. The affidavit further states that for approximately three weeks the Pompano Beach police had maintained almost constant surveillance of Line. They observed him operating a Ford Van, described in detail, between his home in Mar-gate and a business he operated in Fort Lauderdale. The affidavit goes on to state that the affiant contacted the Illinois Department of Motor Vehicles and received documentation that the Illinois license plate affixed to the Van was registered to a 1963 Ford two door vehicle. In addition, the Van had a “for sale” sign displayed in its window, which sign bore the telephone number listed for Line’s business in Fort Lauderdale. The affiant concluded that: Line had been identified as the seller of the listed stolen vehicles; Line and his son had been identified as being in possession of several described stolen motor vehicles; Line and his son had been seen frequently in possession of the described Ford Van; and, as a result, the affiant felt there was probable cause to believe that the described Ford Van might be bearing an altered vehicle identification number and might be a stolen vehicle.

Appellant’s two points on appeal attain the sufficiency of the affidavit for the search warrant. First, it is contended that the officer failed to adequately describe the premises (the Van) to be searched. Secondly, appellant contends the facts stated in the affidavit failed to constitute probable cause to support issuance of a search warrant.

No useful purpose would be served by setting forth the lengthy affidavit. Suffice to say that the Van was described in detail as to make, model, color, and license plate. In one place the year was improperly stated, but that was adequately explained in testimony at the suppression hearing, and we conclude the mistaken statement was of no consequence. Since the warrant was for a motor vehicle, we also hold the description of the location was adequate. In sum, the description of the vehicle was sufficient to point the searching officers unerringly to the vehicle in question. See, e. g., Seymore v. State, 110 So.2d 460 (Fla. 2d DCA 1959).

Line complains that much of the affidavit was hearsay and does not afford the reader an opportunity to determine the credibility of the statements by ascribing them to particular persons or sources.

On the question of hearsay, it is universally accepted that an affidavit supporting a search warrant may be based on hearsay information. See, e. g., State v. Wolff, 310 So.2d 729 (Fla.1975). Furthermore, the use of hearsay statements to support search warrants is subject to the standards of the probable cause test. Aguilar v. Texas, 378 U.S 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We know, of course, that in determining whether an affidavit constitutes probable cause, the test is not whether the statements contained therein are admissible in evidence to prove guilt, but whether the statements would lead a reasonably prudent and cautious man to believe an offense has been committed. Su-iero v. State, 248 So.2d 219 (Fla. 4th DCA 1971). In other words, the standard for sufficiency of an affidavit is not admissibility, but reliability.

There is much hearsay contained in the affidavit in question. However, the trial judge found:

although a portion of the information relied upon in the Affidavits for Search Warrant is hearsay, there is good reason to believe the hearsay statements for the facts directly and personally covered by the police officers support and corroborate the hearsay statements and thereby cause the probable cause to be sufficient.

We agree with that finding. The affidavit states daily surveillance of Line by the police for three weeks, the continual operation of the Van by Line between his house and business, the affiant’s procurement of documentation from the Illinois Department of Motor Vehicles showing the license plate was not issued for this Van, and the “for sale” sign indicating Line was trying to sell the suspect Van. The trial court properly concluded that the affidavit supported the search warrant.

For the foregoing reasons we affirm the judgment and sentence appealed from.

AFFIRMED.

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


text:
    Dennis DAVIS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 79-2580.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.

      Robert J. McFann of DiGiulian, Spellacy & Meyer, Fort Lauderdale, for appellant.
    Joseph S. Kashi of Grimmett, Conrad, Scherer & James, P.A., Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Davis seeks reversal of a final judgment in which the trial court found that he did not have uninsured motorist coverage on his motorcycle upon which appellee State Farm Mutual Automobile Insurance Company had issued an insurance policy.

It appears that Davis purchased a policy of motor vehicle insurance covering a motorcycle from State Farm through its agent George Milo. Davis had done business with Milo for some ten years, purchasing a number of automobile insurance policies, all of which contained uninsured motorist coverage. However, the motorcycle policy involved herein contained no uninsured motorist coverage.

Davis was injured in an accident while operating the motorcycle when the cycle was forced off the road by a hit and run driver. In due course, a claim Davis filed against State Farm on the motorcycle policy was rejected and this suit followed. State Farm’s defense to the suit was that Davis had declined UMI coverage as evidenced by his signature on a rejection slip. After a non-jury trial the court found in favor of the insurance carrier.

It appears to us that the trial resolved an issue of fact which in turn depended upon a question of credibility. Davis testified Milo had told him UMI coverage was not available on a motorcycle and that he was covered under his automobile policies. While Milo did not expressly deny the foregoing because he had no independent recollection of what was said, there are a number of other factors which could well bear on Davis's credibility in resolving the issue.

At a pretrial deposition Davis stated that Milo told him UMI coverage was not available on a motorcycle. Later, at trial, by which time he knew Milo had no recollection of conversations leading to the purchase of the motorcycle policy, Davis testified Milo had told him UMI coverage was not available on a motorcycle, but Davis added that Milo also told him such coverage was unnecessary because his automobile policies would contain such coverage. Although Milo did not remember their conversations in regard to this specific policy, he did testify that he knew UMI coverage was available on motorcycle policies; that his commission would be larger on such a policy if it included UMI coverage; and that he still acted as an insurance agent for Davis. In addition to the foregoing, the evidence showed Davis to be a well educated man who was then working for a doctorate degree at the University of Miami. Yet he says he went through the charade of signing a form expressly rejecting UMI coverage after being told such coverage was unavailable.

Based upon the foregoing we cannot say that this record does not support the trial judge’s findings. And since the judgment comes to this court with a presumption of correctness, it must be affirmed.

AFFIRMED.

BERANEK and HERSEY, JJ., concur.


text:
    Rosemarie SCALZO, Appellant, v. Anthony E. SCALZO, Appellee.
    No. 80-411.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.
    Jeffrey M. Feuer of Jeffrey M. Feuer, P. A., Miami, for appellant.
    No appearance for appellee.
   MOORE, Judge.

The appellant, Rosemarie Scalzo, appeals from a final judgment of dissolution of marriage. Unfortunately, the appellee has not favored us with an appearance on appeal.

The trial judge labored long and tediously as he presided over a bitterly contested custody battle which saw the appellant retain and discharge five lawyers before settling on her present counsel, who, at post-judgment hearings, also had a co-counsel. Although we sympathize with the court and feel that his twenty-one page final judgment manifests his sincere desire to see justice accomplished, we reluctantly reverse and remand this cause for a new trial on all issues embodied within the pleadings except for the dissolution of the marriage.

The parties were married approximately ten years when the original complaint was filed in March, 1977. The final hearing was necessarily conducted on a piecemeal basis, concluding in March, 1980. Three children, whose ages at the time of dissolution were eleven, nine and five, were bom of the union. During the marriage, the husband was self employed in a variety of business enterprises, none of which brought him great financial success. The wife never engaged in outside employment, but confined herself to the duties of housewife and mother. In the final judgment, the trial court made the following findings: that the husband is a fit and proper person to have custody and control of the children and that the two younger children would therefore be placed in his custody; that the eldest child “has demonstrated an unhealthy attitude toward both parents”, but since the child’s attitude toward her father was one of “overt hostility”, the wife should be awarded custody of that child; that the wife is not a fit and proper person to have custody of the children; that the husband be granted the use and occupancy of the marital home subject to future partition; that the wife’s adultery and her persistence in an adulterous relationship was the primary cause of the breakup of the marriage; that because of her adultery and other reasons, the wife is not entitled to any form of alimony; that the wife has demonstrated an ability to support herself; and, that the wife is not entitled to an award of attorneys fees and costs.

We have reviewed the entire record which has been provided us. A number of hearings were apparently conducted without the benefit of a court reporter, but these seem to have been concerned with temporary matters and the parties’ financial situation. Although the trial court’s findings come to us with a presumption of correctness, there must be some record support for them, and we can find no support for the findings of adultery as the primary cause of the breakup, nor for the wife’s ability to support herself. Additionally, the final judgment is inconsistent in finding that the wife is not a fit and proper person to have custody of the children, and yet it awards her custody of the eleven year old daughter. This is particularly disconcerting in light of the Supreme Court’s pronouncement that split custody should not be awarded “except for the most compelling cause”. Arons v. Arons, 94 So.2d 849, 853 (Fla.1957). These matters stand unrebut-ted by the appellee and it does not appear that the unrecorded evidence would support these findings. Furthermore, during oral argument counsel advised this Court that the appellee has now returned the children to their mother, and yet he remains in sole possession of the marital home.

We are convinced that the interrelationship of these erroneous findings with the trial court’s other findings and conclusions demand a new trial on all issues except for the finding that the marriage is irretrievably broken.

REVERSED and REMANDED.

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


text:
    Virginia Ellen LENZ, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-553, 80-554 and 80-566.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.
    Rehearing Denied April 22, 1981.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Barnhill v. State, 393 So.2d 557, (Fla. 4th DCA 1980). Provided, however, in order to preserve appellant’s rights we certify the following question as having been previously certified as one of great public importance:

[Is] a person excluded from mandatory classification under section 958.04[2][a], Florida Statutes (Supp.1978) when prior to sentencing the offender has been found guilty of a qualifying felony under the act and has simultaneously been found guilty of other felonies?

MOORE, HERSEY and HURLEY, JJ., concur.


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    Michael J. SATZ, State Attorney of the 17th Judicial Circuit In and For BROWARD COUNTY, Florida, Appellant, v. GORE NEWSPAPERS COMPANY and Charlyne Varkonyi, Appellees.
    No. 80-600.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. State Atty., Broward County, Fort Lauderdale, for appellant.
    John W. Fleming and William D. Ricker, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   MOORE, Judge.

The State Attorney appeals a peremptory writ of mandamus requiring him to allow inspection of certain of his files by a newspaper reporter. He contends that the public records law exempts these files from its disclosure requirements because they contain criminal intelligence and criminal investigative information received by a criminal justice agency prior to January 25,1979. See, Section 119.07(3)(j), Florida Statutes (1979). We agree and reverse.

The consumer fraud division of the State Attorney’s office compiled all of the information involved in this appeal prior to January 25, 1979, while investigating consumer fraud complaints against three different entities. The State Attorney has the statutory authority to initiate civil or criminal actions against the perpetrators of fraud discovered as a result of such investigations. Each of the three investigations concluded with civil proceedings. Thus, the appellees contend the trial court was correct in ordering the disclosure of the files because no one of the investigations resulted in criminal prosecution.

Two assistant state attorneys testified and described the unique nature of consumer fraud cases. They explained that when investigating complaints they look for patterns of criminality because the accumulation of civil wrongs can often establish the intent element necessary for criminal violations. “A good bit of investigation” is necessary to determine whether complaints should be handled in a criminal or a civil manner. Their testimony was that the complaints here were investigated with a view toward criminal prosecution.

All governmental records are open for public inspection and copying unless specifically exempted. Sections 119.07(l)(a) and 119.07(3)(a), Florida Statutes (1979). All criminal intelligence and criminal investigative information received by a criminal justice agency prior to January 25, 1979 is specifically exempt from the requirements of public disclosure. Section 119.07(3)(j), Florida Statutes (1979). In this case, the State Attorney received the information prior to January 25, 1979; therefore, even though the files are closed, the information contained in them is exempt if it falls in the categories of criminal intelligence or criminal investigative information. Fortunately, the Legislature has defined these terms for us as follows:

§ 119.011 Definitions — ...
(3)(a) “Criminal intelligence information” means information with respect to an identifiable person or group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity.
(b) “Criminal investigative information” means information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including, but not limited to, information derived from laboratory tests, reports of investigators or informants, or any type of surveillance.

The phrase “collected ... in an effort to anticipate, prevent, or monitor possible criminal activity” implies that the test for characterizing investigative information is whether the nature of the investigation is such that a criminal prosecution could result. The testimony clearly showed that criminal prosecutions could have resulted from these investigations, but for unexplained reasons, they were concluded in a civil manner. Thus, we hold that the files contain criminal intelligence and investigative material which was, and may be, used to prevent and monitor possible criminal activity.

We recognize the difficulty which one who seeks such information may have in proving the negative, i. e., that such information is not criminal in nature, without the benefit of first observing the information. We also recognize, however, the nature of consumer fraud. It is criminal if all of the elements of the crime are present and revealed by the investigation. Certainly, the State Attorney would prosecute if he could prove the crime. The fact that an element of the crime does not appear provable does not alter the nature of his investigation into the activity. Perhaps that is the very reason the Legislature provided such a broad definition.

We are troubled, however, with the State Attorney’s concession at oral argument that the portions of his files which he compiled after the decision to proceed civilly may be subject to disclosure. Unfortunately, this was not presented to the able trial court. Instead, the voluminous files were merely laid on the court’s bench with a request for an in camera inspection of the total information. This is improper.

Accordingly, on remand, a determination should be made as to when criminal prosecution was foreclosed and only those matters which do not relate to an effort to “anticipate, prevent or monitor possible criminal activity” shall be disclosed.

The peremptory writ of mandamus is quashed and this cause is remanded to the trial court.

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


text:
    Clinton Randall WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 80-609.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.
    Richard L. Jorandby, Public Defender, and John R. Cullom, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

On authority of Norris v. State, 383 So.2d 691 (Fla. 4th DCA 1980), and Smith v. State, 383 So.2d 959 (Fla. 4th DCA 1980), the trial court is directed, upon remand, to strike condition number 10 of the order of probation requiring appellant “to live honorably at all times." In all other respects the order appealed from is affirmed.

AFFIRMED in part, and remanded with directions.

DOWNEY, MOORE and HERSEY, JJ., concur.


author: LETTS, Chief Judge.

text:
    William CORDANI, f/u/b/o Shelby Mutual Insurance Company, Appellant, v. John Thomas ROULIS, Appellee.
    No. 80-665.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.
    Jeffrey F. Berin, Palm Beach, for appellant.

      G. William Bissett of Preddy, Kutner & Hardy, P. A., Miami, for appellee.
   LETTS, Chief Judge.

Involved here is the question of whether a solvent member insurer under Section 631.54(4), Florida Statutes (1977) has a right of subrogation against the individual insured of another insolvent carrier member of F.I.G.A. We hold the solvent member has no such right and affirm.

One William Cordani driving his father’s car, insured by a solvent insurance company, was badly injured in a collision with a car driven by John Roulis who had only $15,000 worth of coverage with his own insolvent carrier.

Cordani demanded arbitration under his uninsured motorist benefits and received $100,000 from his own solvent carrier. Meanwhile Roulis’ carrier was adjudicated insolvent, so Cordani’s solvent carrier was permitted to intervene seeking the return of its $100,000 by way of subrogation against Roulis, individually, the insolvent carrier’s insured.

Meanwhile upon the adjudication of Roul-is’ carrier as insolvent, the Florida Insurance Guaranty Association (FIGA) assumed Roulis’ defense and filed a motion to dismiss the solvent carrier’s subrogation claim on the grounds that such claim was precluded under Section 631.54(4), Florida Statutes (1977) which concludes with the following sentence:

Member insurers shall have no right of subrogation against the insured of any insolvent member.

Pursuant to this motion, the trial judge dismissed the subrogation claim with prejudice and this appeal followed. We agree with the trial judge.

Initially we determine that notwithstanding a recent decision out of the Third District holding that an order granting a motion to dismiss with prejudice is not a final appealable order, Gries Investment Co. v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980), we adhere to our conclusion that it is. Segal v. Garrigues, 320 So.2d 475 (Fla. 4th DCA 1975).

The solvent carrier argues first that since the accident occurred prior to the adoption of the 1977 version of Section 631.-54(4) then the previous 1970 version is applicable. That previous version did not contain the above quoted concluding sentence in sub-paragraph (4) so that subrogation against the individual insured under it would have been permissible. However, it is our conclusion that the right to subrogation accrued, under the facts of this case, when the underinsured benefits were paid. See Government Employees Insurance Co. v. Wheelus, 319 So.2d 181 (Fla. 4th DCA 1975). It is undisputed that the underin-sured benefits were paid subsequent to the enactment of the 1977 version of the statute.

The solvent carrier next argues that this is not a “covered claim” under Section 631.54(4) because a covered claim is the equivalent of an unpaid claim. As the solvent carrier sees it, they are not making any monetary demand on FIGA which it insists had no obligation beyond payment of the $15,000 in coverage. This argument is not without merit, but if we accept it, we are left without any explanation whatever for the meaning of the first above quoted concluding sentence of the 1977 version of the statute. The language of the sentence is clear and unequivocal, to wit: A member insurer has no right of subrogation against any insured who carries coverage with an insolvent member. We interpret this language to impose an absolute bar on subro-gation, except insofar as same is permitted by other modifying language in the same subsection, notwithstanding the perhaps inapt (or inept) positioning of the sentence in the statutory scheme governing guaranty of payments.

We conclude with the observation that the purposes of the statute appear to be designed to benefit two classes of individuals—claimants and insureds of insolvent carriers. Both of these aims are furthered here resulting in prompt settlement of claims. However, we are not unmindful that the insured Roulis caused at least $100,000 worth of damage, yet had only $15,000 worth of coverage. He has thus reaped enormous benefit just because his carrier happened to be insolvent which brings about a very harsh result so far as the solvent carrier is concerned. Yet if this was not the intent of the statute, then the remedy must be found in the halls of the legislature.

AFFIRMED.

ANSTEAD, J., and STONE, BARRY J., Associate Judge, concur.


text:
    F. Clark GIBSON, Appellant, v. James N. MARR and Stuart National Bank, a National Banking Association, Appellee.
    No. 80-872.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.
    Richard J. Dungey of Anderson & Dun-gey, P. A., Stuart, for appellant.
    Raymond H. Berndt of Sommer & Frasier, P. A., Stuart, for appellee-James N. Marr.
   DOWNEY, Judge.

Having recovered a judgment against ap-pellee James N. Marr, appellant Gibson obtained a Writ of Garnishment against James N. Marr and Stuart National Bank.

The bank filed an answer to the writ reflecting four bank accounts, two of which it is conceded were tenancies by the entirety between Janies N. Marr and his wife, Rosemary F. Marr. The controversy in this case involves the two remaining accounts which were in the name of a business, styled The Pied Piper. The authorized signatures on the bank account signature cards are James N. Marr and Rosemary F. Marr. Marr presented testimony that all property owned by him and Rosemary, his wife, was held as tenants by the entirety. A fictitious name affidavit was also presented showing James and Rosemary as the owners of the business. Finally, a joint income tax return filed by James and Rosemary which reported the business income was placed in evidence. Based upon the foregoing evidence the trial court dissolved the writ of garnishment and Gibson perfected this appeal.

Each of the parties relies upon First National Bank of Leesburg v. Hector Supply Co., 254 So.2d 777 (Fla.1971), to support his contentions. In ruling in favor of Marr the trial court also relied upon the Leesburg case. Averting then to that case, we find the following announcement of the rule to be followed in determining whether a bank account is held as a tenancy by the entire-ties.

So long as a bank account contract or signature card is drafted in a manner consistent with the essential unities of the entireties estate, and so long as it contains a statement of permission for one spouse to act for the other, the requirements of form of the estate will have been met. However, since the form will be similar to that of a joint tenancy, and since the spouses may or may not intend that a tenancy by the entireties should result, the intention of the parties must be proven unless the instrument creating the tenancy clearly bears an express designation that the tenancy is one held by the entireties. [Emphasis omitted.] 254 So.2d at 781.

In our estimation the trial judge was quite correct in his application of the Lees-burg rule to the facts of this case. The account signature card in this case is perfectly consistent with a joint tenancy and the evidence of the parties’ intention that they intended all of their property (which, of course, includes this account) to be held by the entireties is unrebutted.

Accordingly, the order appealed from is affirmed.

AFFIRMED.

ANSTEAD and HURLEY, JJ., concur.


text:
    Charles MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 81-341.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.
    Charles Morris, pro se.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED. The petition for post-conviction relief filed by the appellant and denied by the trial court did not facially meet the requirements set out in Florida Rule of Criminal Procedure 3.850.

ANSTEAD, HERSEY and HURLEY, JJ., concur.


text:
    In the Interest of R. W. G., a child, Appellant, v. STATE of Florida, Appellee.
    No. 80-654.
    District Court of Appeal of Florida, Second District.
    April 1, 1981.

      Jerry Hill, Public Defender, Bartow, and Samuel Robert Mandelbaum, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was charged with burglary. The juvenile division of the circuit court found the charge to be true and, accordingly, adjudged him to be a delinquent.

We reverse. The only evidence established merely that appellant was acquainted with two minors who committed the burglary, that he was outside the premises being burglarized, and that he knew what the actual perpetrators were doing. There was no evidence that he entered the premises at any time, or that he did anything whatsoever which aided or assisted in the commission of the crime. There was no evidence which could even give rise to an inference of any such activity on appellant’s part.

The evidence was totally insufficient to establish appellant’s guilt. Such as it was, it was not inconsistent with the reasonable hypothesis that, as he claimed, appellant had refused to participate in the crime in any way. Such evidence does not support a conviction. Pack v. State, 381 So.2d 1199 (Fla.2d DCA 1980).

The order is reversed.

SCHEB, C. J., and GRIMES, J., concur.