author: DAUKSCH, Chief Judge.

text:
    Russell D. DEATHERAGE, Appellant, v. Lillian F. DEATHERAGE, Appellee.
    No. 80-460.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.
    Rehearing Denied March 81, 1981.
    Thomas C. Houck, Melbourne, for appellant.
    Rex E. Moule of Reinman, Harrell, Sil-berhorn, Moule & Boyd, P. A., Melbourne, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from an order modifying a final judgment in a marriage dissolution case. The final judgment incorporated a property settlement between the parties whereby the husband agreed to pay $100.00 a month for child support. The order modifying the final judgment increased the child support from $100.00 per month as agreed in the property settlement to $52.16 a week. Because the evidence is insufficient to support an increase in the amount of support the final judgment provided for the child, we reverse the order of modification.

A fundamental prerequisite to modification of child support payments is a showing of substantial change of circumstances, including financial circumstances of one or both of the parties. Brown v. Brown, 315 So.2d 15 (Fla. 3d DCA 1975). This change in circumstances must be significant, material, involuntary, and permanent in nature. In re Marriage of Johnson, 352 So.2d 140 (Fla. 1st DCA 1977). The party seeking modification has the burden of showing this change in circumstances. Meltzer v. Meltzer, 356 So.2d 1263 (Fla. 3d DCA 1978). And where, as here the amount of child support is based upon an agreement by the parties, a heavier burden rests upon the party seeking a modification than would otherwise be required. Scott v. Scott, 285 So.2d 423 (Fla. 2d DCA 1973). However, the matter of increase in child support payments is one largely within the sound judicial discretion of the trial court on consideration of the evidence. Accordingly, the party who challenges the correctness of increased allowance of child support has the burden of demonstrating on the record an abuse of discretion. McKenna v. McKenna, 220 So.2d 433 (Fla. 3d DCA 1969).

The father has met his burden of demonstrating an abuse of discretion. There was no evidence presented to the trial court that the father’s circumstances had changed in any way. The father testified that he is still making $8.02 an hour, working forty hours a week, has no other income, and the financial affidavit that he had previously filed with the court at the time of the dissolution accurately reflects his present expenses. Since the dissolution, the wife has sold the marital home she received as lump sum alimony. She has continued to be employed as a dental assistant earning $170.00 a week. Her only change in circumstance is that she is now required to pay $310.00 a month rent for a house.

The order modifying the final judgment is reversed as there is no evidence in the record of a substantial change in circumstances of the husband or wife.

The father also appealed the award of attorney’s fees to the appellee, claiming that she was in a financial situation equal to or better than that of appellant. The general rule is that the purpose in awarding attorneys’ fees is to ensure that both parties will reasonably have the same ability to secure competent counsel. Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973). It is error to award a spouse attorney’s fees if both spouses are on an equal footing to secure counsel. Id. at 693. An award of the fee is not to the benefit of counsel, but is for the equitable objective of putting a wife on substantially even terms with the husband. Keena v. Keena, 245 So.2d 665 (Fla. 1st DCA 1971). The record reveals that the appellant and appellee are on at least equal footing. Therefore, it was error for the trial court to award the appel-lee attorney’s fees.

The order modifying child support and awarding the appellee attorney’s fees is reversed and the original final judgment is reinstated.

REVERSED.

ORFINGER and SHARP, JJ., concur.


source: Caselaw Access Project

author: BERANEK, Judge.

license: Public Domain

text:
    WILLIAM PASSALACQUA BUILDERS, INC., Appellant, v. MAYFAIR HOUSE ASSOCIATION, INC., Appellee. RESNICK DEVELOPERS SOUTH, INC., Appellant, v. MAYFAIR HOUSE ASSOCIATION, INC., Appellee.
    Nos. 79-158, 79-161, 79-262, 79-641 and 79-1666.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1981.

      Larry Klein, West Palm Beach, Paul J. Walstad of Walstad, Kasimer, Tansey & Ittig, Washington, D. C., Welbaum, Zook, Jones & Williams, Miami, Peterson, Young, Self & Asselin, Atlanta, Ga., and Jones & Foster, P. A., West Palm Beach, for appellants, William Passalacqua Builders, Inc., and General Insurance Company of America, Inc.
    Timothy P. McCarthy, Palm Beach, and F. Martin Perry, West Palm Beach, for Resnick Developers South.
    Joel M. Weissman of Law Offices of Ronald Sales, Palm Beach, for Mayfair House Association.
   ON REHEARING

BERANEK, Judge.

This case involves three actions, culminating in numerous non-final and final appeals and a petition for certiorari. There are, primarily, four parties involved, Mayfair House Association, Inc., representing Mayfair House Condominium’s unit owners, Resnick Developers South, Inc., the developer of Mayfair House Condominium, William Passalacqua Builders, Inc., the general contractor on the Mayfair House project, and General Insurance Company of America, the surety on Passalacqua’s performance bond. Before the building was completed, various disputes arose between Passalacqua and Resnick concerning the construction, including claims by Passalacqua that Res-nick had not paid it for work performed. The contract between the developer and builder provided for arbitration of disputes. Passalacqua instituted arbitration against Resnick who counterclaimed in the arbitration proceedings for damages for defective construction and delays by Passalacqua.

Meanwhile, Passalacqua filed a claim of lien against the property and sued Resnick to foreclose the mechanic’s lien. Resnick counterclaimed against Passalacqua and General Insurance Company seeking the identical relief as sought in the arbitration proceedings for alleged construction defects. Passalacqua and General Insurance Company moved to stay all proceedings in the lien foreclosure case pending arbitration of the same dispute. The trial court granted the stay. Resnick appealed that order to this Court, which affirmed without opinion on April 15, 1977 (DCA Case No. 76-2041).

Mayfair filed a separate suit on March 10, 1976, on behalf of its unit owners against Resnick for construction defects and deficiencies based on breach of contract and breach of implied warranties. Mayfair also sued Passalacqua for negligence, breach of contract, and breach of implied warranty, and General Insurance Company under its performance bond. Resnick cross-claimed on July 20, 1977, against Passalacqua and General Insurance Company seeking damages for breach of the construction contracts. The Resnick crossclaim against the builder once again sought damages for the same construction defects involved in the pending arbitration proceedings and the pending, but stayed, mechanic’s lien action. Passalacqua cross-claimed against Resnick for damages and indemnification for any construction defects for which they might be held liable to Mayfair.

Passalacqua and General Insurance moved in the Mayfair suit to compel arbitration of portions of Resnick’s crossclaim. The motions were denied, and both Passa-lacqua and General Insurance Company appealed seeking interlocutory review. (DCA Case No. 79-158 and Case No. 79-161). Passalacqua additionally moved to stay Res-nick’s crossclaim in the Mayfair suit pending completion of the arbitration proceedings. The motion was denied and Passalac-qua sought review by petition for writ of certiorari (DCA Case No. 79-262). Passa-lacqua subsequently requested this Court to stay Resnick’s crossclaim and by order of February 14, 1979, this Court stayed the crossclaim, except as to Count III, which sought to restrain and permanently enjoin the arbitration proceedings (DCA Case No. 79-641). The trial court neither compelled nor enjoined arbitration of the dispute and arbitration proceeded but was not completed until subsequent to the trial of the suit by Mayfair.

The arbitration proceedings ended November 24,1979, with a $1,721,171.00 award to Passalacqua against Resnick for amounts owed under the contract and for extras. Resnick’s counterclaim for construction defects against Passalacqua was denied. This arbitration award determined all issues between the parties and conclusively established that Resnick proved no construction defects against Passalacqua or General Insurance Company.

We conclude that the contract between the parties required arbitration of the dispute in question. The construction contract between Passalacqua and Resnick provided in paragraph 7.10.1:

All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, except as set forth in Subparagraph 2.2.9 with respect to the Architect’s decision on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided in Subparagraphs 9.7.5 and 9.7.6, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties, mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. (Emphasis added.)

Contract provisions for arbitration of all claims, disputes or other matters arising out of or relating to a construction contract are enforceable in accordance with the Florida Arbitration Code. Mills v. Robert W. Gottfried, Inc., 272 So.2d 837 (Fla. 4th DCA 1973). Any party to a construction contract subject to the Arbitration Code may apply to the circuit court for an order to compel arbitration. Section 682.03, Florida Statutes (1977). A motion to compel arbitration requires determination of the existence of a valid agreement to arbitrate, the existence of arbitrable issues and whether arbitration has been waived. Bigge Crane and Rigging Co. v. Docutel Corporation, 371 F.Supp. 240 (E.D.N.Y. 1973). Any action or proceeding involving an issue subject to arbitration should be stayed if an order for arbitration or an application thereof has been made. Section 682.03(3), Florida Statutes (1977). If the arbitrable issue is severable, the stay may be entered with respect thereto only.

In the instant case, the trial court erred in refusing to compel arbitration of those issues raised in Counts I and II of Resnick’s crossclaim but the effect of this rather complex litigation is that arbitration properly occurred prior to trial of these same issues in the suit brought by Mayfair. Consequently, the non-final appeals and the petition for certiorari pertaining to compelling or staying arbitration proceedings are determined to be moot. (DCA Case Nos. 79-158, 79-161, 79-262).

Within a very few days of the February, 1979, orders of this Court, the trial court began the jury trial on Mayfair’s construction defects suit against Passalacqua, Res-niek and General Insurance Company. On March 9, 1979, the jury entered its verdicts in the Mayfair case finding for Mayfair and against Resnick in the amount of $334,-404.00, for Mayfair and against Passalacqua in the amount of $35,370.00, and for General Insurance Company on Mayfair’s claim against it. The trial court rendered its final judgments in accordance with the verdicts on March 19, 1979, and subsequently denied Resnick’s motion for new trial. Res-nick appealed (DCA Case No. 79-1666), raising three points: (1) Error in refusing to permit Resnick to elicit testimony regarding the surety’s participation in the construction. (2) Error in refusing to continue the case when the “inextricably intertwined” crossclaim between Resnick and Passalacqua had been stayed by this court. (3) The jury’s failure to follow the court’s instruction requiring them to construe the performance bond and construction contract together.

We find no merit to any of appellant/Resnick’s contentions and affirm. We initially note that Resnick’s arguments under Points (1) and (3) are really arguments in favor of plaintiff against the surety. Resnick contends that it was improperly prevented from introducing evidence about the surety’s actual completion of construction on the project. Appellant urges that such evidence would have resulted in the jury’s returning a verdict other than the “zero” verdict which was returned against the surety. The same argument is made in regard to the alleged failure of the jury to follow the court’s instructions about construing the performance bond and the construction contract together. Initially we note that Mayfair’s claims against the Surety were based solely on the surety bond and not on any other theory. Although we are somewhat perplexed as to Resnick’s standing to raise these arguments, we find no error whatsoever. Resnick has not directed this Court to any specific prejudice resulting to it in the defense of plaintiff’s claims against Resnick for construction defects and deficiencies. In addition, it appears that other evidence was presented to the jury as to the surety’s actual participation in construction. Thus, if the trial court erred in refusing to allow Resnick to introduce testimony from a particular witness in this regard, the error was harmless.

As to Point (2), Resnick argues that the crossclaim was “inextricably intertwined” with the issues in the plaintiff’s suit and that the matters should have been tried together. This argument totally fails to recognize the existence of the contractual arbitration provision between Resnick and Passalacqua. These parties were obligated to arbitrate. Passalacqua initially sought arbitration and Resnick, by counterclaim, asserted its claim for construction defects against Passalacqua. Arbitration was the proper forum in which to decide these disputes. The Resnick claim for construction defects against Passalacqua and General Insurance was also asserted as a counterclaim in the lien foreclosure action filed by Passalacqua. This was the first lawsuit filed and therein Resnick’s counterclaim for construction defects was stayed pending arbitration. This Court had already affirmed the stay order by opinion of April 15, 1977, when Resnick cross-claimed against Passalacqua in the Mayfair suit for the same alleged construction defects. It thus appears that the Resnick claim for construction defects was already being arbitrated and had already been stayed in prior litigation when this same claim was again asserted in the Mayfair case. The trial court did not err in denying Resnick’s motion for continuance made on the eve of trial. The final judgment below is affirmed.

Affirmed.

DOWNEY and ANSTEAD, JJ., concur.

      . The Third District’s recent opinion in Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980), has been urged to support the position that this Court lacks jurisdiction to review the interlocutory appeals regarding arbitration. The point was not initially raised and in view of our ruling that all matters pertaining to the interlocutory appeals are moot, we do not consider the issue.


author: HENDRY, Judge.

text:
    Irven George PRESSLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-968.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Rehearing Denied April 14, 1981.

      Bennett H. Brummer, Public Defender and Max P. Engel, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant Irven Pressley, the defendant below, seeks review of a second degree murder conviction entered pursuant to a jury verdict. We affirm.

The events leading to this unfortunate killing began as a domestic quarrel between appellant and Caroline Reddick and soon encompassed Caroline’s family. After their quarrel, appellant angrily left the home he shared with Caroline. Caroline and her sister Sheila and brother Eddie searched for appellant, and when they couldn’t locate him, Eddie and Sheila went to the home of their mother Bertha and stepfather, Henry Johnson. After learning of Eddie’s desire to confront him, appellant and a companion also went to the Johnson home where an altercation between appellant and Eddie took place. Eddie discharged his gun into the ground while Henry tried to reconcile the two. By this time, the entire family was gathered in the yard to observe the conflict. Appellant then got into the car with his friend and exchanged gunfire with Eddie as they were pulling away; appellant firing toward Eddie and the others. Henry Johnson was killed. Appellant disposed of his weapon and later turned himself in.

At the conclusion of all the evidence, appellant moved for a directed verdict of acquittal which was denied. During deliberations, the jury asked for additional information concerning the weapons used by appellant and Eddie. After conferring with counsel for both sides, the judge instructed the jury to rely on its own recollection.

Appellant raises three points on appeal. (1) The trial court erred in not reducing the charge of second degree murder to manslaughter. (2) The trial court erred in denying his motion for judgment of acquittal. (3) The trial court erred in not declaring a mistrial on its own motion when the jury asked for further information.

To resolve appellant’s contention that the second degree charge should have been reduced to manslaughter, we look to Section 782.04(2), Florida Statutes (1979), which defines murder in the second degree as:

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, ....

The Florida Standard Jury Instruction on second degree murder provides that:

An act is one imminently dangerous to another and evincing a depraved mind regardless of human life if it is an act (or a series of acts) which
1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another,
2. is done from ill will, hatred, spite or an evil intent, and
3. is of such a nature that the act itself indicates an indifference to human life.

Clearly, a person of ordinary judgment would know that firing a loaded gun toward a group of people is reasonably certain to kill or do serious bodily injury to another. Appellant’s acts also indicated an indifference to human life and demonstrated ill will. Even though a defendant has no intent to hit or kill anyone, firing a gun into a crowd of people constitutes second degree murder when a person is killed as a result. Golding v. State, 26 Fla. 530, 8 So. 311 (1890); United States Fidelity & Guaranty Co. v. Perez, 384 So.2d 904 (Fla. 3d DCA 1980). In the instant case, moreover, there is evidence that the appellant did intend to either kill or cause serious bodily injury to Eddie Reddick. As a matter of law, this original malice is transferred from the one against whom it was entertained to the person who actually suffered the consequence of the unlawful act. Coston v. State, 139 Fla. 250, 190 So. 520 (1939); Wright v. State, 363 So.2d 617 (Fla. 1st DCA 1978), cert. denied 372 So.2d 471 (Fla. 1979). Accordingly, a second degree murder charge was appropriate in the present case.

Addressing appellant’s second point, we conclude that the motion for judgment of acquittal was properly denied. The standard of review for the denial of a motion for judgment of acquittal is “not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt, but rather whether the jury must reasonably so conclude.” Hernandez v. State, 305 So.2d 211 (Fla. 3d DCA 1974), cert. denied 315 So.2d 192 (Fla.1975). By the motion, a defendant admits all facts introduced into evidence and the court must draw every inference favorable to the prosecution. Codie v. State, 313 So.2d 754 (Fla. 1975); Rodriguez v. State, 379 So.2d 657 (Fla. 3d DCA 1980). The motion should not be granted absent any evidence legally sufficient upon which to base a verdict of guilt. Downer v. State, 375 So.2d 840 (Fla. 1979); Everett v. State, 339 So.2d 704 (Fla. 3d DCA 1976).

We are satisfied that there was sufficient evidence to support the trial court’s denial of the motion. Appellant does not dispute the fact that he fired his gun in the direction of the deceased. Rather, appellant argues his innocence on two alternative grounds: that he was justified in firing on a theory of self-defense, or that Eddie fired the fatal shot.

In order to avail oneself of a claim of self-defense in a homicide, a defendant must demonstrate that the situation would induce a reasonably prudent person to believe both that danger was imminent and that there was a real necessity for the taking of a life. Gil v. State, 266 So.2d 43 (Fla. 3d DCA), cert. denied, 271 So.2d 139 (Fla.1972). Appellant has not carried that burden. Bolin v. State, 297 So.2d 317 (Fla.3d DCA), cert. denied, 304 So.2d 452 (Fla.1974). Furthermore, a person may not use violence upon his assailant, after the assailant is no longer a threat and all danger is clearly past, and thereby claim to be acting in self-defense. Gil v. State, supra. Sub judice, appellant was driving safely away from any possible harm when he began shooting. Thus, appellant was the aggressor and may not be said to have acted defensively.

Appellant’s alternative theory of innocence — that Eddie Reddick actually killed Henry — stems from the fact that it was impossible to determine the caliber of the bullet removed from the deceased. The medical examiner who performed the autopsy testified that the fatal bullet came from a large caliber weapon and that no “stippling” was observed around the entrance wound. Although both appellant and Eddie were armed with large caliber weapons on the day of the murder, other evidence presented at trial tended to prove that appellant fired the fatal shot: 1) at the time of the shooting, Henry was standing to Eddie’s left (with Bertha Reddick positioned between them) and not in Eddie’s line of fire, whereas appellant was aiming toward both Eddie and Henry (there was no testimony that Eddie ever aimed his gun sideways toward the deceased); 2) the absence of stippling around the wound indicated that Henry was probably not shot from close range (Eddie was near to the deceased, appellant farther away); 3) finally, appellant discharged his weapon approximately four times during the gun battle, while Eddie fired only once. This evidence was legally sufficient to support a verdict of guilt; the motion for judgment of acquittal was properly denied, thereby enabling the jury to confront the conflicts in testimony. Lynch v. State, 293 So.2d 44 (Fla.1974).

In his final point appellant argues that the trial court should have declared a mistrial on its own motion when the jury interrupted its deliberations to request information not in the record. He urges that such a request indicates the jury’s inability to determine guilt or innocence based solely on the evidence adduced at trial, and suggests reliance upon their own independent knowledge in reaching a verdict.

With the consent of counsel for each side, the trial judge instructed the jurors to rely on their own recollections of the evidence presented. This ruling was in accordance with the Florida Rules of Criminal Procedure, which provide that the court may give the jury additional instructions, or correct erroneous ones, and have testimony read to them, but may not allow the jury to hear additional evidence after they have retired to consider their verdict. Since appellant does not allege that any of the jurors had independent knowledge of the events in question or that extraneous information prejudiced the jury’s impartiality, he appears to be challenging the sufficiency of the evidence. That issue, however, is foreclosed by our affirmance of the trial court’s denial of the motion for judgment of acquittal.

No error having been demonstrated, the conviction appealed from is hereby affirmed.

Affirmed.

      . Stippiing is the presence of small burns on the skin around a gunshot wound caused by hot gunpowder and usually results from the weapon being fired at close range.

      . Fla.R.Crim.P. 3.420.

      . Fla.R.Crim.P. 3.410.

      . Fla.R.Crim.P. 3.430.


author: HERSEY, Judge. BERANEK, Judge,

text:
    STATE of Florida, Appellant, v. Hilmer B. SANDINI, Appellee.
    No. 79-1810.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1981.
    Rehearing Denied April 22, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Douglas J. Glaid of Kay & Silber, P. A., Fort Lauderdale, for appellee.
   HERSEY, Judge.

The state appeals from a non-final order granting a motion to suppress evidence. The motion questioned the sufficiency of an affidavit to establish probable cause for the issuance of a search warrant, in the execution of which the evidence had been seized. The trial court held that the exclusionary rule rendered impermissible any reliance on information contained in the affidavit because it was supplied in violation of an attorney-client privilege. Since the court found that an attorney-client relationship existed at the time and in connection with the allegations contained in the affidavit, by necessary implication it determined that the information did not pertain to on-going criminal activity or fit within any other exception to the privilege.

Recitation of the factual background is unnecessary either to an understanding or to a resolution of the single issue to be treated by this opinion. Our determination that neither the exclusionary rule nor any other principle prohibits reliance on information volunteered by an attorney in violation of the attorney-client privilege for the establishment of probable cause renders moot the preliminary inquiries raised by appellant as to the existence and extent of the privilege on the specific facts of this case. The issue then is whether privileged material voluntarily offered by an attorney in violation of his duty to his client may be used to establish the probable cause necessary to support the issuance of a search warrant.

The argument advanced by appellee for application of some form of exclusionary rule in these circumstances is multifaceted. We therefore commence our consideration by addressing what appears on its face to be a logical assertion that this is a classic case for application of the exclusionary rule.

Firmly rooted in the jurisprudence of constitutional law is the precept that a search conducted pursuant to an illegal search warrant is unreasonable within the meaning of the Fourth Amendment to the Constitution of the United States and Article I, Section 12 of the Florida Constitution. Evidence obtained by virtue of an unreasonable search is inadmissible, either in federal or in a state court, by virtue of the exclusionary rule. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) the court explained portions of the rationale for the rule, stating:

The primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights. Post-Mapp decisions have established that the rule is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim....
... [Djespite the broad deterrent purpose of the exclusionary rule, it has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons. As in the case of any remedial device, “the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” Id. at 486, 96 S.Ct. at 3048, 99 L.Ed.2d at 1083 (citations omitted)
(emphasis supplied).

That rationale applies here, insists appellee, because use by the police of information voluntarily offered by an attorney in violation of the attorney-client privilege constitutes police misconduct.

It is true that the attorney for an accused could not be called by the state as a witness against his client, State v. Schroeder, 112 So.2d 257 (Fla.1959), nor subpoenaed to provide information against his client’s interests, Anderson v. State, 297 So.2d 871 (Fla.2d DCA 1974). It is equally clear that where the state surreptitiously intrudes upon an exchange of information between attorney and client that informa tion becomes tainted and subject to exclusion. Coplon v. United States, 191 F.2d 749 (D.C.Cir.1951), cert. denied 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952). In each of these instances, however, the state has tak en positive action which constitutes “police misconduct” within the context of the rule. This is not the case where the police are merely the passive recipients of information, from whatever source. For the classic rule to be invoked, there must be some deterrent effect to illegal conduct by or on behalf of the state. The act of accepting information in a lawful manner and acting upon it simply does not have any recognizable characteristics of police misconduct. Appellee’s bare assertion to the contrary fails to even remotely persuade that police misconduct is involved here.

Appellee further suggests, however, that based upon Sixth Amendment and other considerations, the exclusionary rule should be extended to include “attorney-misconduct” in the form of violations of the attorney-client privilege.

The attorney-client privilege renders inadmissible in a criminal trial testimony of an attorney concerning communications which come within the privilege. Anderson v. State, supra. To this extent, then, we have an existing “exclusionary rule” applicable to privileged testimony. This exclusion also precludes the state from compelling the disclosure of privileged information at any stage of the proceedings. Thus the state could not compel the disclosures which occurred in the instant case. The exclusion of privileged communications is broader than the exclusion for police misconduct. For example, the former is available in the context of grand jury proceedings, State v. Schroeder, supra, whereas the latter is not. The unanswered question is whether this exclusion, already broader in scope, should be expanded still further to preclude the use of information furnished in violation of the privilege at any stage of criminal proceedings.

It is strenuously contended that an affirmative response is appropriate because (1) effective assistance of counsel may be denied if the accused is aware that counsel may voluntarily violate the attorney-client privilege to the detriment of the accused; and (2) the attorney-client privilege is emasculated if counsel may violate it with impunity.

In Anderson v. State, supra at 872, the court emphasized the limitations within which the attorney-client privilege operates. Quoting from Wigmore on Evidence, the court explained:

[T]he privilege remains an exception to the general duty to disclose. Its benefits are all indirect and speculative; its obstruction is plain and concrete .... It is worth preserving for the sake of a general policy, but it is nonetheless an obstacle to the investigation of the truth. It ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle.” 8 Wigmore, Evidence § 2291 (McNaughton rev. 1961).

Assuming, then, that the privilege is and should be relatively limited in its scope we perceive in these two arguments no sufficient justification for extending its ramifications to exclude the use of evidence voluntarily submitted by an attorney in violation of the privilege. Such evidence, therefore, is competent to establish the probable cause necessary to sustain issuance of a search warrant.

The Sixth Amendment argument is clearly unavailing. The denial of effective assistance of counsel refers only to the assistance to be rendered presently in the context of a criminal proceeding. Stevenson v. Reed, 391 F.Supp. 1375 (N.D.Miss. 1975), aff'd, 530 F.2d 1207 (5th Cir. 1976), cert. denied, 429 U.S. 944, 97 S.Ct. 365, 50 L.Ed.2d 315 (1976). It has no reference to violations of the privilege by former counsel of the accused in prior matters.

Nor is threatened emasculation of the privilege a sufficient justification for creating an exclusion under these circumstances. To the extent that appellee has been damaged by a violation of the privilege, his remedy is by civil proceedings against his former attorney. Violation of the privilege by the attorney is punishable through machinery established by the Florida Bar and the Supreme Court for enforcing and punishing violations of the Code of Professional Responsibility. If both of these possibilities are insufficient to deter violations of the privilege, certainly a rule of exclusion would have little additional deterrent effect. As a matter of practicality in most cases the attorney will have little interest in whether or not the evidence is excluded.

Appellee next suggests that an affidavit, to be sufficient to support the issuance of a search warrant, must be based upon “competent” evidence given by a “competent” witness. Applying this proposition to the present case, appellee contends that information furnished in violation of the attorney-client privilege is not competent evidence and that an attorney disclosing such information is not a competent witness. In the context of an affidavit for a search warrant, though, competency refers not to the admissibility of the evidence at trial or to the capacity of the source of the information to testify; rather it refers to the reliability of the information and its source. See State v. Wolff, 310 So.2d 729 (Fla.1975). Thus, hearsay information, although inadmissible as evidence in a trial, may constitutionally form the basis of an affidavit for a search warrant. State v. Wolff, supra.

Appellee suggests that an exclusionary rule should be created to prevent or deter the unreasonable interception of private communications, prohibited by Article I, Section 12 of the Florida Constitution. To reach this issue we would first have to make a determination that the act of a police officer in listening to an attorney voluntarily giving him information in violation of the attorney-client privilege is guilty of the unreasonable interception of a private communication. Aside from being a contradiction in terms, we are unable to discern what it is that could be considered “unreasonable” under these circumstances. We therefore reject the hypothesis.

Finally, appellee argues that an exclusionary rule is essential to the continued vitality of the attorney-client privilege. As previously discussed, an exclusionary rule would have little (if any) deterrent effect on intentional violators of the privilege.

We therefore hold that the order granting the motion to suppress evidence protected by the attorney-client privilege is erroneous and is hereby reversed.

The case is remanded for further proceedings.

REVERSED AND REMANDED.

ANSTEAD, J., concurs.

BERANEK, J., concurs specially with opinion.

BERANEK, Judge,

concurring specially:

I concur in the result reached by the majority. My review of the record leads me to conclude that the matters disclosed by the attorney were in the nature of ongoing and future criminal conduct. As such, they were not within the attorney-client privilege.


author: HERSEY, Judge. GLICKSTEIN, Judge,

text:
    STATE of Florida, Appellant, v. Julie FERGUSON and Mark R. Chavez a/k/a Mark R. Shavez, Appellees.
    No. 80-249.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1981.
    Rehearing Denied April 15, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellee-Mark R. Chavez.
    Gregory Scott of Craft, Craft & Scott, West Palm Beach, for appellee-Julie Ferguson.
   HERSEY, Judge.

The state appeals from an order of the trial court which granted a motion to dismiss charges against appellees. This ruling was based upon an interpretation of a statute.

Appellees were charged with being accessories after the fact to the escape of a juvenile. The record discloses that the escape occurred while the juvenile was in transit between a doctor’s office and a juvenile detention center.

The trial court determined that such an escape (by a juvenile while in transit) was not a crime because it was not encompassed by the language of the escape statute; thus appellees could not be accessories to a nonexistent crime.

This Court, in the case of In the Interest of F. G., 349 So.2d 727 (Fla. 4th DCA 1977) pointed out that Section 416.06 of the Florida Statutes provides that “a detention home shall not be deemed to be, nor treated as a penal institution, but a home.” As a result a child could not commit the crime of escape embodied in Section 944.40, Florida Statutes (1979):

Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county, or municipal, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 755.084. The punishment of imprisonment imposed under this section shall run consecutive to any former sentence imposed upon any prisoner.

Again in Prince v. State, 360 So.2d 1161 (Fla. 4th DCA 1977) we held that simply transferring authorization to direct the operation of detention services for children to the Division of Youth Services of the Department of Health and Rehabilitative Services did not constitute evidence of legislative intent to include juvenile detention facilities “within the definition of penal institutions as set forth in Section 944.40, Florida Statutes.” Ibid, at 1163.

Subsequently the legislature adopted Chapter 78-414 containing a section specifically directed to this problem. Section 17 of that chapter added Section 39.112 to the Florida Statutes. That section now provides:

An escape from any training school or secure detention facility maintained for the treatment, rehabilitation, or detention of children, who are alleged or found to have committed delinquent acts or violations of law constitutes escape within the intent and meaning of s. 944.40 and is a felony in the third degree.

Our Supreme Court recently had occasion to consider the relationship between Section 39.112 and Section 944.40. In State v. J. R. M., 388 So.2d 1227, 1980, the court by necessary implication determined that the former statute incorporated the latter by reference rather than constituting an unconstitutional attempt to amend.

No violence is done to the rule of strict construction of criminal statutes by recognizing that the legislature in enacting Section 39.112 intended to adopt by specific reference all of the ramifications of Section 944.40, including flight while in transit.

We therefore reverse and remand for such further proceedings as may be appropriate in view of our opinion.

REVERSED AND REMANDED.

DOWNEY, J., concurs.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge,

dissenting:

I respectfully dissent.

There is a material difference in the statutes governing escape by juveniles and adults.

Section 39.112, Florida Statutes (1979), says:

An escape from any training school or secure detention facility maintained for the treatment, rehabilitation, or detention of children, who are alleged or found to have committed delinquent acts or violations of law constitutes escape within the intent and meaning of s. 944.40 and is a felony in the third degree.

Section 944.40, Florida Statutes (1979), says:

Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county, or municipal, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 755.084. The punishment of imprisonment imposed under this section shall run consecutive to any former sentence imposed upon any prisoner.

In the present case the state appeals from the trial court’s dismissal of Count I of the amended information which charges appel-lees with being accessories after the fact to the escape of a juvenile. The trial court found that the juvenile’s flight from custody while being transported from the juvenile detention center to a court-appointed psychiatric evaluation did not constitute an escape within the language of Section 39.-112, Florida Statutes (1979); therefore, ap-pellees could not be accessories to non-prohibited conduct. I concur and would affirm. Any change in the relevant statute must come from the legislature.


author: DOWNEY, Judge. ANSTEAD, Judge, PER CURIAM.

text:
    Philip Gene GRABARNICK and Florida Homeowners Association, Inc., Appellants, v. FLORIDA HOMEOWNERS ASSOCIATION OF NORTH BROWARD, INC., a Florida Corporation, and Florida Homeowners Association of South Broward, Inc., a Florida Corporation, Appellees.
    No. 80-1519.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1981.
    Rehearing Denied April 15, 1981.

      Gerald Mager, of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellants.
    Fred C. Bamman, III, of Law Offices of Fred C. Bamman, III, P.A., Pompano Beach, for appellees.
   ON MOTION TO DISMISS AND/OR STRIKE

DOWNEY, Judge.

Appellees have moved to dismiss or strike this appeal on the ground that the notice of appeal was not timely filed.

It appears that final judgment, after a trial by the court, was rendered May 30, 1980. Appellants filed a petition for rehearing in the trial court, which petition reflected that a copy thereof was served on appellees by mail on June 10, 1980, a Tuesday. The petition was denied on August 1, 1980, and notice of appeal was filed August 18, 1980.

Since the petition for rehearing was served on the 11th day after rendition of the final judgment, appellees contend the petition failed to toll the time for taking an appeal from the judgment of May 30, 1980, thus making the notice of appeal filed August 28, 1980, untimely. Appellants respond that their petition for rehearing was timely because the ten-day period provided by Florida Rule of Civil Procedure 1.530(b) is extended to thirteen days by Florida Rule of Civil Procedure 1.090(e), which adds three days when service is made by mail. Our examination of the two rules leads us to conclude that under Rule 1.530(b) the time for filing a petition for rehearing begins to run from the date a judgment is entered, rather than from the date it is served or received, while under Rule 1.090(e) the time period commences to run after a party has been served with a pleading or other paper.

A footnote in Franchi v. Florida Dept. of Commerce, Etc., 375 So.2d 1154 (Fla. 4th DCA 1979), sets forth the following relevant comment:

Courts which have construed F.A.R. 3.4(b)(3), the predecessor to the current Rule 9.420(d), have noted that the rule with reference to service does not apply to the strict jurisdictional requirement pertaining to the filing of a notice of appeal. In re Walker’s Trust, 143 So.2d 363 (Fla.2d DCA 1962). In fact, in In re Estate of Rogers, 205 So.2d 535 (Fla. 4th DCA 1967) this court noted that the fact that the clerk of this court had transmitted a copy of this court’s opinion on the merits to appellant’s counsel by mail did not extend the time for appellant to apply for a rehearing by three days under the terms of F.A.R. 3.4(b)(3). This is consistent with the fact that in allowing additional time to be added to the prescribed period whenever a party or clerk is required or permitted to do an act within some prescribed time after service of a document by mail, the rule refers only to acts which are required within a certain time after service. A final order or opinion, unlike the brief of an opposing party, is not served on a party but is simply filed by the clerk’s office and distributed to the parties.

Flint v. Howard, 464 F.2d 1084 (1st Cir. 1972), dismissed an appeal from an order denying habeas corpus relief because the notice of appeal from that order was not timely filed since a motion for reconsideration of the order denying relief had not been filed within ten days of the entry of the order and thus had not extended the time period for filing a notice of appeal.

In a petition for rehearing, the appellant argued, among other things, that the notice of appeal was timely because Federal Rule of Civil Procedure 6(e) added three days to the ten day period for seeking reconsideration of the order denying him relief. The Court rejected that argument, saying:

The problem with this argument is that Rules 52 and 59 both provide that the 10 days within which a motion for reconsideration must be filed begins to run from “entry of judgment” rather than from receipt of notice and Rule 6(b), Fed.R. Civ.P., prohibits enlargement of such time. Petitioner’s ingenious and undocumented effort to justify an additional three-day mailing period does not persuade us.
464 F.2d at 1087; emphasis added.

Accordingly, we reject appellants’ argument that Rule 1.090(e) extends the time for serving a petition for rehearing. It follows that appellants’ petition for rehearing served June 10, 1980, was untimely, making appellants’ notice of appeal from the final judgment untimely. We are thus without jurisdiction, and we are required to dismiss this appeal.

APPEAL DISMISSED.

HURLEY, J., concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

Although I concur in the views expressed in Judge Downey’s opinion, I must admit that I am concerned about the apparent conflict in purpose and effect among the various rules of procedure involved.

It was apparently the intention of the drafters of Rule 1.530 to provide the parties with a period of ten days in which to consider and prepare a motion for rehearing. The rule provides that the ten day period shall commence upon the entry of final judgment, and Rule 1.090(b) provides that the court may not extend the time in which the motion can be filed. On the other hand, the current version of Rule 1.090 recognizes the fact that most papers filed in an action are served upon the parties by mail and that this may mean that a party does not really receive notice of the entry of an order or filing of a paper until some five days later. Accordingly, Rule 1.090 grants the parties an additional five days to act when service is made by mail. Rule 1.080(h) recognizes that orders and judgments may also be served upon the parties by mail.

The net effect of all these provisions is that the parties do not receive the ten days nominally allotted to them to prepare a motion for rehearing. Instead, if the five day provision of Rule 1.090(e) is an accurate estimate of the time it takes for mail delivery, they receive only five days. This result seems to conflict with the drafter’s original purpose of providing ten days. Under these circumstances, if it is indeed determined to be desirable to provide the parties with ten days in which to act, it would appear advisable to either enlarge the time period provided in Rule 1.530 from ten days to fifteen days, or to provide that the motion shall be filed within ten days of service of the final judgment. A third possibility would be to authorize the trial court, under Rule 1.090(b), to enlarge the time for filing the motion for new trial.

ON REHEARING

PER CURIAM.

We adhere to our previous opinion but agree with the appellants that the question we resolved as to whether Florida Rule of Civil Procedure 1.090(e) should be applied to enlarge the time for filing a petition for rehearing is one of great public importance. Accordingly, we deny the petition for rehearing but grant the petition for certification of the question involved here as one of great public importance.

DOWNEY, ANSTEAD, and HURLEY, JJ., concur.

      . Time for Motion. A motion for a new trial or for rehearing shall be served not later than 10 days after the rendition of verdict in a jury action or the entry of judgment in a non-jury action. A timely motion may be amended to state new grounds in the discretion of the court at any time before the motion is determined.

      . Additional Time After Service by Mail. When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.

      . Our Rule 1.090(e) is patterned after Federal Rule 6(e).


author: CLARK, HAROLD R., Associate Judge.

text:
    John R. FRASER, John Walter Fraser, Joan Elizabeth Fraser, Elaine Fraser and Virgil Bryan Fraser, Appellants, v. SOUTHEAST FIRST BANK OF JACKSONVILLE, a National Banking Corporation, and Margot C. Valcarce, Appellees.
    No. JJ-202/T1-2.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.
    Rehearing Denied April 2, 1981.
    John F. Corrigan of Ulmer, Murchison, Ashby, Taylor & Corrigan, Jacksonville, for appellants.
    Delbridge L. Gibbs of Marks, Gray, Con-roy & Gibbs, Jacksonville, for appellee, Southeast First Bank.
    Jeffrey G. Wood of Beckham, McAliley & Proenza, Jacksonville, for appellee Valcarce.
   CLARK, HAROLD R., Associate Judge.

Appellants seek review of an order discharging trustees of a testamentary trust after appointment of a successor trustee and approval of accountings of the resigning trustees. We affirm.

Part of the confusion in the trial court was occasioned by attempts of the parties to comply with Florida Rule of Civil Procedure 1.627. That rule applied only to trust accountings filed under the old trust qualification statutes existing prior to the revision of Chapter 737 by the 1974 Florida Legislature. Florida Rule of Civil Procedure 1.627 no longer applies to proceedings to approve trust accountings and should be repealed.

Appellants contend that the trial court erred in approving the final accounting and two court-ordered supplemental account-ings and ultimately in discharging the trustees. Southeast properly commenced proceedings by filing a complaint pursuant to section 737.205, Florida Statutes, initially for instructions as to the disposition of trust assets but soon amended for leave to resign, approval of accounts and appointment of a successor trustee. Section 737.205, Florida Statutes, is unambiguous:

Trust proceedings; commencement.
Proceedings concerning trusts shall be commenced by filing a complaint and shall be governed by the rules of civil procedure.

When Southeast amended its complaint it should have attached the account for which it sought approval. Fla.R.Civ.P. 1.130(a). Defendant beneficiaries timely answered. They might have moved to dismiss the amended complaint for failure of Southeast to attach its account. Fla.R.Civ.P. 1.140(b). The account was subsequently filed. The hearing on September 30, 1979, on the amended complaint and answers, including the accounting, was not designated as a final hearing but the case was at issue. Southeast complied with defendant beneficiaries’ insistence that Southeast move for summary judgment. The trial court found that the beneficiaries failed to sufficiently oppose, by affidavit or otherwise, the entry of the summary judgment approving the final accounting and acceptance of the resignation of the trustees. Fla.R.Civ.P. 1.510(c).

By the summary judgment the parties were directed to submit names of corporate fiduciaries willing to serve as a successor trustee. Present trustees were directed to file a supplemental accounting and a hearing was set for the consideration of the supplemental accounting and the appointment of a successor trustee. Although the court may have provided for the filing of the supplemental accounting prior to the hearing and fixing a time for serving and filing objections to the supplemental accounting, no timely objection to the procedure was made.

From the beginning of this litigation the apparent objection of the Frasers was not to the supplemental accountings but to the past management of the trust property for periods covered by accountings previously filed and approved under the old trust accounting law. Objections to specific past actions of the trustees were never stated in this litigation and the beneficiaries chose not to attempt to have those previous accountings reopened and reconsidered. We do not suggest that such relief might have been available or appropriate if it had been sought. The trial court in this litigation considered only what was properly presented to it for determination.

Accordingly, the order of February 22, 1978, discharging the trustees is affirmed.

ORFINGER and COBB, JJ., concur.


text:
    H. Max SHECKLER, Appellant, v. CITY OF MT. DORA and Continental Insurance Company, a New York Corporation, Appellees.
    No. 80-640.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.
    Rehearing Denied April 3, 1981.

      Frederick, Wooten & Honeywell, Orlando, and L. Edward McClellen, Jr., of Pattillo, MacKay & McKeever, P.A., Ocala, for appellant.
    Robert A. Hannah of Pitts, Eubanks & Ross, P.A., Orlando, for appellees.
   DAUKSCH, Chief Judge.

The issue in this case is whether the trial judge properly excluded evidence relating to the responsibility on the part of the city for appellant’s injuries which occurred when the lid of a trash dumpster fell upon him. It was the city’s position that it was the manufacturer’s fault the lid struck the appellant, or that it was appellant’s fault himself. Appellant attempted to elicit testimony from an expert witness relating to “how this instability and unsafe condition could be corrected on this particular dumpster?” The trial judge did not permit this question to be answered because, he said, the city was not responsible for redesigning the dumpster. However, there was evidence the city knew this dumpster was particularly unsafe because the Public Works Superintendent, who was responsible for the maintenance and repair of these dumpsters, was told of the problem. In fact, he had warned his drivers that if a dumpster was seen in an up position it was hazardous and must be corrected. This was one of those up-position dumpsters.

The trial judge correctly charged the jury “The issues ... are whether the City of Mount Dora negligently failed to maintain the refuse containers in a reasonably safe condition .... ” Based upon the evidence and this charge he should have permitted the testimony regarding the city’s maintenance of a safe dumpster and any warnings that the city might have been bound to give. Redwing Carders, Inc. v. Watson, 341 So.2d 1049 (Fla. 4th DCA 1977).

The judgment is reversed and this cause remanded for a new trial.

REVERSED AND REMANDED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: PER CURIAM.

text:
    FLORIDA AUDUBON SOCIETY, Tropical Audubon Society, and Maureen B. Harwitz, Appellants, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION; City of North Miami, Florida; and Munisport, Inc., Appellees.
    No. PP-381.
    District Court of Appeal of Florida, First District.
    March 5, 1981.
    Rehearing Denied April 21, 1981.
    Joseph Z. Fleming of Fleming & Neu-man, Miami, David Gluckman, for appellants.
    Silvia M. Alderman, Asst. Gen. Counsel, Tallahassee, for the Dept.
    Willard K. Splittstoesser, North Miami, for appellee City of North Miami.

      Robert S. Selzer of Sadur & Pelland, Washington, D. C., for appellee Munisport, Inc.
   PER CURIAM.

AFFIRMED. We point out that the parties brought to this Court’s attention certain activities which occurred with regard to the subject sanitary landfill permit after the order appealed was issued. Our review is limited to the evidence on which the initial permitting was based. Competent substantial evidence exists in the record to support the issuance of the permit by the Department of Environmental Regulation.

McCORD, J., and LILES, WOODIE A. (Retired) and OWEN, WILLIAM C., Jr., (Retired) Associate Judges, concur.


author: SHIVERS, Judge.

text:
    GEORGE L. SIMONDS CO., and Risk Management Services, Inc., Appellants, v. Gilbert GRAHAM and George E. Snyder Co., Div. of American Refractories Co., and Travelers Insurance Company, Appellees.
    No. UU-50.
    District Court of Appeal of Florida, First District.
    March 5, 1981.
    Rehearing Denied April 15, 1981.
    Ivan Matusek, St. Petersburg, for appellants.
    William D. Douglas, of Hamilton & Douglas, P. A., Tampa, and Gary E. Frazier, St. Petersburg, for appellees.
   SHIVERS, Judge.

Employer/Carrier appeal a workers’ compensation order awarding claimant temporary disability benefits and permanent partial disability benefits and dismissing the employer/carrier’s claim for reimbursement against a subsequent employer. We affirm in part and reverse in part.

Although the employer/carrier have raised nine points on appeal, only three points merit discussion. First, the deputy commissioner erred in failing to adjudicate the amount and class of temporary disability benefits due the claimant. Garitson v. Rifenburg, 380 So.2d 1311 (Fla. 1st DCA 1980). Although the deputy commissioner found the claimant was temporarily disabled during periods he was not working from October 14, 1977, through June 18, 1979, the deputy commissioner failed to determine the time intervals during which the claimant was temporarily totally disabled or temporarily partially disabled and the amount of the temporary disability compensation to be paid the claimant. The issue of claimant’s entitlement to temporary disability benefits was ripe for adjudication and properly before the deputy commissioner and it was reversible error not to rule on the issue.

In reversing the failure of the deputy commissioner to adjudicate the issue of claimant’s temporary disability, we note that the employer/carrier have argued that claimant is not entitled to any temporary disability benefits between October 14,1977 and March 27, 1979, because he was working during this time. Although the record shows that the claimant was employed during portions of this time period, it also shows that he was not working during other portions. The claimant may be entitled to temporary total disability benefits during those times he was not working and he may be entitled to temporary partial disability benefits during those times he was working. Therefore, until the deputy commissioner makes a specific award of either temporary total disability benefits or temporary partial disability benefits, it is impossible for this court to determine whether there is sufficient evidence to support such an award.

The deputy commissioner further erred in retaining jurisdiction to increase or decrease the award of 75% permanent partial disability benefits depending upon the outcome of claimant’s rehabilitation. Coe v. Kentucky Fried Chicken, 393 So.2d 1156 (Fla. 1st DCA 1981); Sanz v. Eden Roc Hotel, 140 So.2d 104 (Fla.1962). Should either the employer/carrier or the claimant subsequently maintain that the claimant’s permanent disability has decreased or increased, the proper avenue for modification of a compensation award is a petition for modification pursuant to Section 440.28, Florida Statutes, rather than a deputy commissioner’s retention of jurisdiction. Maffit v. Henderson’s Portion-Pak, Inc., 132 So.2d 410 (Fla.1961); Coe, supra.

Additionally, the deputy commissioner awarded 12% interest on due but unpaid compensation payments. Although the issue of claimant’s entitlement to temporary disability benefits must be reversed for further consideration by the Deputy Commissioner, we note that the award of 12% interest on delinquent payments is correct only to the extent that it involves interest on benefits which accrued on or after July 1, 1978. Myers v. Carr Construction Co., 387 So.2d 417 (Fla. 1st DCA 1980); § 440.20(7), Florida Statutes (1978). The applicable legal interest rate on benefits which became delinquent prior to July 1, 1978, is 6% pursuant to the statutory provision in effect at the time of the claimant’s accident. § 687.01, Florida Statutes (1977); Myers, supra.

Accordingly, that portion of the order pertaining to the award of temporary disability benefits and retention of jurisdiction to increase or decrease the award of permanent partial disability benefits is reversed and remanded to the deputy commissioner for further consideration consistent with this opinion. The remaining points raised by the employer/carrier have been considered and are found to be without merit. All other portions of the appealed order are, therefore, affirmed.

AFFIRMED in part and REVERSED in part.

McCORD and JOANOS, JJ., concur.


text:
    DIVISION OF RETIREMENT, Appellant, v. Clarence E. ALLEN, Appellee.
    No. UU-188.
    District Court of Appeal of Florida, First District.
    March 5, 1981.
    Rehearing Denied April 15, 1981.
    Diane K. Kiesling, Asst. Div. Atty., Div. of Retirement, Tallahassee, for appellant.
    Wayne M. Carroll, Lake Butler, for appel-lee.
   SHIVERS, Judge.

The Division of Retirement appeals an order of the Retirement Commission awarding in-line-of-duty disability retirement benefits to appellee Allen. We affirm.

Appellee Allen, a Correctional Officer III at Florida State Prison, suffered a stroke on November 11,1977. He retired on October 26, 1978, unable to perform his employment duties.

The Division of Retirement found appel-lee to be totally and permanently disabled, granted him regular disability retirement benefits but denied him in-line-of-duty benefits.

Allen appealed to the Retirement Commission the Division’s denial of in-line-of-duty benefits. The Commission, after an evidentiary hearing, reversed the Division’s determination and found appellee to be “totally and permanently disabled as a result of the mental and physical effects of the stroke he suffered in November 1977” and concluded that the stroke was caused by stress from appellee’s job. The Commission ordered that in-line-of-duty disability retirement benefits be granted to appellee.

The points on appeal are: (1) whether the conclusion of the Commission that appellee is entitled to in-line-of-duty disability retirement benefits is based on competent, substantial evidence, and (2) whether appel-lee was entitled to benefits in light of Section 121.021(13), Fla.Stat.

As to Point One, there is competent, substantial evidence to support the Commission’s findings of fact that appellee is permanently and totally disabled as a result of the mental and physical effects of the November 1977 stroke and that the stroke was caused by his job as Correctional Officer at Florida State Prison.

Three correctional officers testified that the conditions at Florida State Prison, the State’s maximum security prison, produced more job stress than is found in other correctional facilities in Florida. An officer who worked at the same position as claimant testified that the job as shift-to-shift supervisor was highly stressful because of frequent conflicts between inmates and the unarmed and highly outnumbered correctional officers and because most officers are inexperienced and insufficiently trained due to the high rate of employee turnover. He further testified that appellee was a conscientious worker and that he observed the stress had been “getting to” appellee prior to his stroke.

Dr. Lennon, appellee’s treating psychologist, testified that studies showed that stress associated with employment at maximum security prisons leads to stress over and above that of most occupations. He declared that appellee’s mental disability was “directly related and caused by the stressful circumstances under which he was working at Florida State Prison.”

Appellee testified that he suffered undue job stress on the day of his stroke because of the shortage of experienced help. He stated that for about two or three weeks prior to his stroke, he began to have headaches which were progressively difficult to alleviate.

Dr. Cunningham, specialist in internal medicine and neurology, testified that job stress contributed to the claimant’s illness and subsequent disability and that his illness, considering appellee’s personality, was a reaction to job stress. The physician further testified that appellee suffered from hypertension and that the stressful conditions of the job probably would have elevated appellee’s blood pressure.

We affirm Point One.

In Point Two, appellant Division contends that the Commission, in determining what evidence is sufficient to prove causation for a Section 121.021(13) disability, is required to apply the “arising out of” test developed under workers' compensation law.

Section 121.021(13), Fla.Stat. defines disability in the line of duty as an “injury or illness arising out of and in the actual performance of duty required by a member’s employment during his regularly scheduled working hours or irregular hours as required by the employer.” The Commission found that the facts of this case were similar to those in Bolinger v. Division of Retirement, 335 So.2d 568 (Fla. 1st DCA 1976) where the employee suffered from a congenital condition that disabled her when aggravated by a fall at work. We held there that the Commission erred in denying Bolinger in-line-of-duty disability benefits. Here, the Commission noted that the preexisting condition was physical in Bolinger and that the appellee’s preexisting condition was a mental and physical inability to cope with stress.

The Division argues that Bolinger requires that the “arising out of” language in Section 121.021(13) should be construed the same as the “arising out of” language in Section 440.09(1) of the Workers’ Compensation Law and that Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340 (Fla.1978) provides the proper standard for determining whether there was a causal connection between appellee’s stroke and his employment. We disagree.

Mosca was a workers’ compensation case. There the court stated that before the claimant’s ruptured aneurysm could qualify as an accident arising out of employment, claimant had to show the rupture was caused by unusual strain or an overexertion by the claimant resulting from a specifically identifiable effort by him not routine to the type of work he was accustomed to performing. In reversing the finding of compensability because claimant failed to show unusual strain from a specific identifiable effort which was not routine, the court noted that emotional strain was too elusive a factor to be utilized, independent of any physical activity, in determining a causal connection between an internal failure of the cardiovascular system and the employment.

We affirm the Commission’s conclusion that Mosca is inapplicable. Under Chapter 440, compensation is payable only for an “injury,” arising in a certain way while Section 121.021(13) is broader and defines disability in the line of duty as an “injury or illness” arising out of employment. Ap-pellee is entitled to benefits under Section 121.021(13), Fla.Stat., and we affirm Point Two.

AFFIRMED.

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


author: SHAW, Judge.

text:
    Michael O'DAY, Appellant, v. TAYLOR RENTAL CENTER; Liberty Mutual Insurance Company, Appellees.
    No. WW-183.
    District Court of Appeal of Florida, First District.
    March 5, 1981.
    Rehearing Denied April 15, 1981.
    Peter W. Martin, P. A., Sarasota, for appellant.
    John J. O’Riorden of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P. A., Sarasota, for appellees.
   SHAW, Judge.

The claimant, a 20-year-old male with a medical history of back difficulties, was employed by the present employer in October of 1979 to assist customers in equipment rentals. On Friday, November 23, at approximately 3:00 p. m., he was in the process of moving a generator when he experienced a sudden sharp pain in the center of his back. After abandoning efforts to move the generator he spent the remainder of the day loading chairs and the next day was unable to work because of pain. Saturday and Sunday were spent in bed and on Monday he was seen by Dr. DiCosola who opined that he had suffered a new injury to his back.

The Deputy Commissioner denied the appellant’s claim for compensation and dismissed the claim with prejudice. The following paragraph from the order sheds light upon the dismissal:

6. Section 440.02(18), Florida Statutes, defines “accident” as being merely “an unexpected or unusual event or result happening suddenly. ... ” (emphasis added). Therefore, in order to find an accident in this instance, it is necessary to find an unusual or unexpected result did, in fact, happen suddenly. Predicated upon the bizarre symptomatology pattern and the employee-claimant’s previous experiences of similar import which are set forth in the findings of fact hereinabove, it is the finding of your undersigned that the employee has not sustained an accident and injury arising out of and in the course of his employment as that term is so defined in the statutory provision afore recited. Therefore, and after careful review of all of the evidence presented for my consideration, it is the opinion of your undersigned that there is no competent nor substantial evidence to meet the employee-claimant’s burden of proof of establishing that he did, in fact, sustain an accident arising out of and in the course of his employment on November 23, 1979, during the claimant’s employment with the employer herein.

The Deputy’s finding is not supported by the record. The claimant’s testimony that he experienced a sudden sharp pain while lifting equipment, and that as a result of the pain he required bed rest and hospitalization is competent substantial evidence of an unexpected or unusual event or result happening suddenly. The episode qualifies as an accident within the meaning of the Workers’ Compensation Law. Gray v. Employers Mut. Liability Ins. Co., 64 So.2d 650 (Fla.1953).

The order is accordingly reversed and the cause is remanded to the Deputy for further proceedings consistent with this opinion.

SHIVERS and THOMPSON, JJ., concur.


author: PER CURIAM. MILLS, Chief Judge,

text:
    Elaine Weaver CUMBIE, Appellant, v. Marvin Leroy CUMBIE, Appellee.
    No. WW-471.
    District Court of Appeal of Florida, First District.
    March 5, 1981.
    Rehearing Denied April 15, 1981.
    Sharon H. Tanner, Jacksonville, for appellant.
    William T. Lassiter, Jr., Jacksonville, for appellee.
   PER CURIAM.

We construe the final judgment in this dissolution of marriage action as granting the wife prospective credit, at the time of partition, for ownership expenses she had paid and will pay on the marital home from the date the final judgment was filed. This is proper. Smith v. Smith, 390 So.2d 1223 (Fla. 1st DCA 1980). The wife has not made an adequate showing that the trial judge abused his discretion in denying her request that she be awarded the home as a special equity. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Accordingly, the judgment is AFFIRMED.

ROBERT P. SMITH, Jr., J., and WILLIAM C. OWEN, Jr., (Retired) Associate Judge, concur.

MILLS, C. J., dissents with opinion.

MILLS, Chief Judge,

dissenting:

I dissent. Under the facts of this case, which are uncontroverted, it is my opinion the trial court abused its discretion in failing to award the wife the husband’s interest in the home as lump sum alimony. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).


author: BASKIN, Judge.

text:
    Roderick KNOTT, Appellant, v. Marion Poston KNOTT, Appellee.
    No. 80-251.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Rehearing Denied April 14, 1981.

      Roderick Knott, in pro per.
    Hersh & Bernstein and Brian R. Hersh, Betty Kessler, Miami, for appellee.
    Before BASKIN and DANIEL S. PEARSON and FERGUSON, JJ.
   BASKIN, Judge.

Roderick Knott, respondent in a dissolution of marriage proceeding, appeals an order entered by the trial court awarding attorneys’ fees to his wife’s former attorneys on the ground that the trial court lacked jurisdiction to enter the award following the parties’ reconciliation and voluntary dismissal of the action. The attorneys have cross-appealed challenging the amount of the award as inadequate. We affirm both orders.

Marion Poston Knott sought a dissolution of her marriage to Roderick Knott. The action was contested for many months and culminated in a hearing concluded on April 12, 1979. At that time, the court determined the parties’ rights concerning child custody and property and orally approved a stipulation between the parties in which the husband agreed to pay half the wife’s attorneys’ fees and costs. The court specifically reserved jurisdiction to determine the amount of attorneys’ fees at a later time. Although several proposed orders were prepared, none was signed by the court. The attorneys, Brian Hersh and Betty Kessler, were then discharged by the wife and permitted by the court to withdraw. The wife obtained new counsel. Hearings were held before a general master to determine the amount of reasonable attorneys’ fees and costs. On December 6, 1979, the court announced its decision that reasonable attorneys’ fees totaled $37,000 and ordered the husband to pay the wife’s attorneys half of that amount, that is, $18,500. Half the costs were also taxed against the husband. A proposed order was submitted to the court, but on December 17, 1979, prior to the court signing the order, the husband and wife filed a joint stipulation of dismissal. Attorneys Hersh and Kessler filed a motion for contempt against the husband’s attorney and a motion to strike and vacate notice of voluntary dismissal; both motions were denied. On January 9,1980, the court entered its Order and Final Judgment of Temporary and Permanent Attorneys’ Fees and Costs directing the husband to pay the wife’s attorneys $18,500 and taxing costs amounting to $9,561.66 against the husband and in favor of the wife. The husband has appealed. The wife has filed no response to either appeal.

The husband contends that the voluntary dismissal filed by the parties upon their reconciliation deprived the trial court of jurisdiction to enter the order awarding attorneys’ fees and costs. In addition, he argues that attorneys Hersh and Kessler lacked standing to seek attorneys’ fees or to cross-appeal.

The question of standing has been determined by the enactment of Section 61.16, Florida Statutes (1979).

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorneys’ fees, suit money and the costs to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

The statute clearly provides that an attorney may enforce an order requiring a party to pay a reasonable amount for attorneys’ fees and costs in his own name. The authorities cited in appellant’s brief preceded the enactment of section 61.16 in 1971 and are inapplicable. The attorneys have standing to enforce their claim.

The husband’s argument that the trial court was deprived of jurisdiction by the voluntary dismissal fails to persuade us for several reasons. First, the stipulation of dismissal does not refer to the rights of the attorneys provided in section 61.16. Thus, any rights inuring to the attorneys under section 61.16 survived the dismissal of the action between the parties. Furthermore, the trial court specifically reserved jurisdiction to entertain the previously filed motion for attorneys’ fees. At the conclusion of the final hearing on April 12, 1979, the court inquired:

THE COURT: Have I omitted anything?
MR. HERSCH: I have a couple of questions to clarify insofar as my major items. I believe you have covered everyone of them, your Honor. You reserve a future hearing on the amount setting attorneys’ fees and costs?
THE COURT: Yes, and you can work out whether you want to do that on the basis of an affidavit or live testimony or whatever.

Where the parties to a divorce action become reconciled, the cause may be dismissed as to the divorce action and permitted to continue for allowance of attorneys’ fees. Baldwin v. Baldwin, 154 Fla. 624, 18 So.2d 681 (1944); Turnipseed v. Turnipseed, 158 So.2d 808 (Fla. 1st DCA 1963); Hadlock v. Hadlock, 137 So.2d 873 (Fla. 2d DCA 1962).

The trial court’s determination that the husband pay half the wife’s reasonable attorneys’ fees was the result of an offer made by the husband and approved by the court. Although no binding stipulation remained in effect, the record discloses that the court evaluated the parties’ circumstances and independently determined the proportionate amounts to be borne by each party, reserving the specific amount for later determination. The court’s decision became valid and binding between the parties even though a written judgment had not been entered at that time. “However essential a filed writing to an appeal, a judgment may be valid although not in such final form as is required for appeal purposes.” Becker v. King, 307 So.2d 855, 858 (Fla. 4th DCA), cert. dismissed, 317 So.2d 76 (Fla.1975). The reduction to writing by the court of a previously entered order is a purely ministerial act and may be accomplished after jurisdiction to entertain new proceedings has terminated.

We reiterate that the determination of attorneys’ fees in a dissolution proceeding is not a determination by the court of the amount due from a party to an attorney absent a charging lien. Behar v. Root, 393 So.2d 1169 (Fla. 3d DCA 1981); Barranco, Darlson, Daniel & Bluestein, P.A. v. Winner, 386 So.2d 1277 (Fla. 3d DCA 1980); Herold, P.A. v. Hunt, 327 So.2d 240 (Fla. 4th DCA 1976). The court decides only the amount by which one spouse indemnifies the other spouse. The attorneys retain the right to sue in an independent action on a contract with their client. Behar v. Root, supra; Barranco, Darlson, Daniel & Bluestein, P.A. v. Winner, supra. Indemnification, however, as a practical matter, may be the only way an attorney can obtain his fee.

We know of no principle of law by which a woman, who has a meritorious cause of action for divorce and employs an attorney to institute and prosecute such an action, can, after it has been instituted and carried on for some time, deprive him of his right to compensation for the services so rendered in that action by a reconciliation with her husband, followed by a resumption of cohabitation. It would seem that upon the clearest principles of common honestly, as well as law, that an attorney in such a predicament ought to be compensated for the services rendered, and that the wife should be allowed suit money for that purpose.

Hadlock v. Hadlock, supra, at 874 (quoting Kiddle v. Kiddle, 90 Neb. 248, 133 N.W. 181 (1911)).

For these reasons, we hold that the attorneys’ right to enforce their claims for attorneys’ fees in their own name survived the stipulation of dismissal filed by the parties. The court specifically reserved jurisdiction to determine a reasonable attorneys’ fee, half of which was to be borne by the husband. We therefore affirm the Order and Final Judgment of Temporary and Permanent Attorneys’ Fees and Costs.

We find no merit in the attorneys’ arguments that the amount of their award was inadequate. The court heard expert testimony and arrived at a determination upon evaluation of all relevant factors. The award was within the discretion of the court. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Price v. Price, 389 So.2d 666 (Fla. 3d DCA 1980). We therefore affirm the order entered by the trial court.

      . The husband’s appeal is from the Order and Final Judgment of Temporary and Permanent Attorneys’ Fees and Costs. The attorneys’ appeal is from Order on Motion for Contempt and Motion to Strike and Vacate Voluntary Dismissal.


text:
    Paul Turner VETTER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-500.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Rehearing Denied April 14, 1981.
    Weiner, Robbins, Tunkey & Ross and Ronald A. Dion and Jeffrey S. Weiner, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   HENDRY, Judge.

Appellant Vetter was arrested at Miami International Airport when the narcotics dog Ringo indicated, by positive alert, the presence of a controlled substance within appellant’s briefcase. A warrant for search of the brief case was issued upon probable cause based on the dog's alert, and cocaine was discovered.

Both sides submitted to the court written (and widely divergent) versions of events leading up to the dog sniff, which bear upon the issues of an illegal stop (vel non) and appellant’s purported consent. At pretrial hearing, appellant alleged in addition that the affidavit for warrant contained material misrepresentations concerning the dog Ringo; the affidavit stated:

The narcotics detection dog “Ringo” is specially trained in the detection of heroin, cocaine, marijuana, hashish and all of their derivatives. “Ringo” has positively alerted on thirteen consecutive occasions for substances which were subsequently verified to be controlled substances. At' no time has Ringo alerted falsely.

Appellant claimed that Ringo’s training, or lack thereof, does not give his alerts that quantum of reliability necessary to constitute probable cause. Two experts in the canine training field testified for appellant to the effect that Ringo’s training regimen, and his work routine, precluded an objective demonstration of reliability. Moreover, appellant challenged the veracity of the statements regarding the thirteen consecutive alerts, and the dog’s perfect record.

Initially, we examine the affidavit.

Our analysis begins with the rule of Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2675-76, 57 L.Ed.2d 667, 672 (1978):

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

That Ringo was characterized -in the affidavit as “trained” was sufficient predicate upon which to issue the search warrant. United States v. Meyer, 536 F.2d 963, 966 (1st Cir. 1976); United States v. Painter, 480 F.Supp. 282, 284 (W.D.Mo.1979); Briscoe v. State, 40 Md.App. 120, 388 A.2d 153, 159 (Ct.Spec.App.1978); see United States v. Klein, 626 F.2d 22, 27 (7th Cir. 1980). However, in the subsequent Franks hearing, the dispositive question became whether use of the term “trained” in the description of the dog was a false statement knowingly or recklessly made. Criteria by which to assess the training a narcotics dog has received are collected in our opinion in State v. Foster, 390 So.2d 469 (Fla.3d DCA) (1980) [1980 FLW 2229] (involving a war-rantless search). The trial court was not convinced by appellant’s experts that Ringo’s training was inadequate to establish his reliability; on this record, where a plea was made to the court, and accepted, before the state put on its case for Ringo’s training and general reliability, we will not gainsay the decision of the learned trial judge that appellant did not carry his burden. Appellant’s arguments regarding the admissibility of testimony relating to the falsity of other statements contained in the affidavit are similarly unavailing: Since the representation that Ringo was properly trained conferred probable cause standing alone, the truth or falsity of the other statements, which were surplusage, is irrelevant. Franks, supra; Antone v. State, 382 So.2d 1205, 1211 (Fla.1980).

Finally, regarding the claims surrounding the initial contact, we affirm. Although the court below might have been clearer in its factual determination, we do not accept appellant’s claim that the court adopted en toto his version of the facts. To the extent that error was committed, we hold that such was invited; on this record, the presumption of correctness which surrounds the trial court’s rulings remains undisturbed.

Affirmed.


author: SCHWARTZ, Judge.

text:
    John Dean ELISON and Jeanne Marie Elison, Appellants, v. Martin B. GOODMAN, Barbara B. Goodman, Allan M. Greenberg and Ella G. Greenberg, Appellees.
    No. 80-907.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Rehearing Denied April 14, 1981.
    Paul L. Backman and Jon Jay Ferdinand, Hollywood, for appellants.
    Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The Elisons’ cross-claim for damages allegedly caused by construction defects in their new home was terminated by summary judgment on statute of limitation grounds, because unequivocal statements in their depositions established that they were on notice of the defects more than four years before the action was filed. Section 95.11(3), Florida Statutes (1979); Steiner v. Ciba-Geigy Corp., 364 So.2d 47 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 461 (Fla. 1979). The judgment is affirmed, notwithstanding the filing of an affidavit in opposition to the summary judgment in which Mr. Elison directly contradicted his deposition testimony concerning the date of discovery, so as to bring it within the limitations period. The trial court properly struck this affidavit under the now well-settled rule, which had its genesis in Ellison v. Anderson, 74 So.2d 680 (Fla.1954), that a party is not permitted to alter a previously asserted position simply to avert summary judgment. Accord, Inman v. Club on Sailboat Key, Inc., 342 So.2d 1069 (Fla. 3d DCA 1977); Home Loan Co., Inc. of Boston v. Sloane Co. of Sarasota, 240 So.2d 526 (Fla. 2d DCA 1970); Williams v. Duggan, 172 So.2d 844 (Fla. 1st DCA 1965); Tri-County Produce Distributors, Inc. v. Northeast Production Credit Ass'n, 160 So.2d 46 (Fla. 1st DCA 1963); Bente v. Nelson, 156 So.2d 17 (Fla. 2d DCA 1963); Kramer v. Landau, 113 So.2d 756 (Fla. 3d DCA 1959).

Nor did the appellants bring themselves within the exception to this principle which arises when there is a “credible explanation by the affiant as to the reason for the discrepancy between his earlier and later opinions." [e. s.] Croft v. York, 244 So.2d 161, 165 (Fla. 1st DCA 1971), cert. denied, 246 So.2d 787 (Fla.1971). The affidavit did recite that Elison had changed his mind about the key date after examining certain insurance documents to which he had referred in the deposition. However, the papers were not themselves attached to the affidavit and their contents were not described in any way. So far as the record shows, therefore, the documents were entirely consistent with the earlier deposition and inconsistent with the later affidavit. Hence, no legally sufficient reason or explanation for the change in testimony was presented. We do not mean to imply that the Ellison rule should be rigidly applied so as absolutely to foreclose a party who has made an honest mistake. But more than an unsubstantiated assertion that such an error has occurred is required to overcome the effect of previous sworn testimony. As a practical matter, that is all the appellants did or attempted to do below. The summary judgment against them is therefore

Affirmed.

      . See also, Koflen v. Great Atlantic & Pacific Tea Co., 177 So.2d 529 (Fla. 3d DCA 1965).

      . Mrs. Elison’s deposition had confirmed her husband’s testimony on this point. There was no attempt whatever to explain the deviation from her deposition embodied in the opposition to the motion for summary judgment.

      . On this issue, the affidavit said simply,
      the Affiant has reviewed said insurance papers concerning State Farm Insurance Company’s inspection of the premises, and Affi-ant has discovered that the year was 1976 and not 1974 or 1975.

      .It should also be noted that since the appellants’ counter-affidavit was stricken simultaneously with the entry of summary judgment, any defects in the affidavit, including the failure to submit or describe the documents, could have been corrected by a motion for rehearing. Holl v. Talcott, 191 So.2d 40, 46-47, 48 (Fla. 1966). The fact that no such motion was filed strongly indicates that the documents would not have supported the Elisons’ present position.


text:
    The STATE of Florida, Appellant, v. Clifford BROWN and Anthony Crumity, Appellees.
    No. 80-1197.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Rehearing Denied April 14, 1981.

      Janet Reno, State Atty. and Stephen V. Rosin, Asst. State Atty., for appellant.
    Bennett H. Brummer, Public Defender and Michael Zelman, Asst. Public Defender, for Anthony Crumity.
    Long & Smith and Harold Long, Jr., Miami, for Clifford Brown.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order under review suppressing the evidence in this cause is reversed and the cause is remanded to the trial court for further proceedings upon a holding that: (a) the defendants [Clifford Brown and Anthony Crumity] were lawfully stopped by the police and subjected to a valid temporary detention based on articu-lable suspicion of auto theft and driving with an expired license plate, State v. Stevens, 354 So.2d 1244 (Fla.2d DCA 1978); (b) the furtive hand movements of both defendants under the car seat, during the subsequent police investigation after the stop, constituted articulable suspicion that the defendants were armed and dangerous, which, in turn, justified the police in searching under the car seat and seizing two guns thereunder — after the police had validly ordered both defendants out of the car, Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); Brown v. State, 358 So.2d 596 (Fla.2d DCA 1978); Stevens v. State, 354 So.2d 110 (Fla.3d DCA 1978); and (c) the lack of standing contention raised by the state is not here reached as, in any event, the instant search was a reasonable one even assuming the defendants had standing to challenge the search, see Gray v. State, 177 So.2d 868 (Fla.3d DCA 1965), cert. denied, 188 So.2d 815 (Fla.1966).

Reversed and remanded.


text:
    INDUSTRIAL EXPORT INTERNATIONAL CORPORATION, Appellant, v. HENRY'S TRANSFER, INC., Appellee.
    No. 80-1324.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Rehearing Denied April 14, 1981.

      Reginald M. Hayden, Jr. and William E. Cassidy, Miami, for appellant.
    Shutts & Bowen and M. Therese Vento, Miami, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Armored Car Services, Inc. v. First National Bank of Miami, 114 So.2d 431 (Fla. 3d DCA 1959); Florida Small Business Corporation v. Miami Shipyards Corporation, 175 So.2d 46 (Fla. 3d DCA 1965); Olshen v. Robinson, 248 So.2d 534 (Fla. 3d DCA 1971); Landers v. Milton, 370 So.2d 368 (Fla.1979).


author: FERGUSON, Judge.

text:
    CORAL ISLE EAST CONDOMINIUM and Coral Isle West Condominium, Appellants, v. Arthur I. SNYDER, Appellee.
    No. 80-1398.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Rehearing Denied April 14, 1981.

      Nelson & Feldman and Michael K. Feld-man, Martin L. Carlin and Gerald Forman, Miami, for appellants.
    Lapidus & Stettin and Robert P. Frankel and Herbert Stettin, Miami, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

Pursuant to Section 718.401(4), Florida Statutes (1979), Coral Isle East Condominium and Coral Isle West Condominium as lessees placed in the registry of the court certain sums of money accruing for rentals under a ninety-nine year recreational leasehold agreement. Arthur I. Snyder as lessor moved to declare Section 718.401(4), Florida Statutes (1979) unconstitutional on the grounds that the statute had been adopted subsequent to the declaration of condominium of the lessee condominiums. By order of June 4, 1980 the Dade County Circuit Court declared that Section 718.401(4), Florida Statutes (1979) had been applied retroactively in violation of the contracts clause of the United States Constitution and the Florida Constitution. U. S. Const.Art. I, § 10; art. I, § 10, Fla.Const. (1968). The condominium associations appeal. We have jurisdiction to hear this interlocutory appeal under Fla.R.App.P. 9.130(a)(3)(C)(ii).

We reverse on the authority of Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G, Condominium Association, 361 So.2d 128 (Fla.1978) and Kaufman v. Shere, 347 So.2d, 627 (Fla.3d DCA 1977), cert. denied, 355 So.2d 517 (Fla.1978). See also Golden Glades Club Recreation Corp. v. As sociation of Golden Glades Condominium Club, Inc., 385 So.2d 103 (Fla.3d DCA 1980).

In Century Village, supra, the supreme court held that where Section 711.-63(4), now Section 718.401(4), is. incorporated by reference as part of the controlling document of the condominium no constitutional question of impairment of contract is raised. The court cited our decision in Kaufman v. Shere, supra, finding that automatic incorporation occurs when the declaration of condominium “unequivocally states that provisions of the Condominium Act are adopted ‘as it may be amended from time to time.’ ” Id., at 133.

The declaration of the appellant condominiums provides:

The provisions of Chapter 711, supra, including the definitions therein contained, are adopted herein by express reference as if set forth in haec verba, and said statute as amended from time to time, ... shall govern this Condominium and the rights, duties, and responsibilities of owners of condominium parcels therein.

Because we find this language indistinguishable from that in Kaufman, supra, we hold that Section 718.401(4), Florida Statutes (1979) is automatically incorporated into the declaration of condominium of Coral Isle East and Coral Isle West Condominium.

Appellee concedes that the declaration of condominium submits the ninety-nine year lease to the condominium form of ownership but argues that the declaration did not intend to submit the lessor’s interest in the lease to third party modification. Appellee cites footnote three in Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla.1979) in support of his theory that only rights of the lessee and not the interest of the lessor are subject to the automatic incorporation of statutory amendments. We are not persuaded. In this case, the appellants’ interests in the ninety-nine year lease may not be modified by subsequent statutory amendment without the corresponding interest of the lessor also being subject to the same amendment. Mutuality of obligation is a basic tenet of contract law. City National Bank of Miami v. Citibank, N. A., 373 So.2d 703 (Fla.3d DCA 1979). Every obligation is the correlative of a corresponding right and when the right is destroyed the obligation is equally extinguished. See 1 Corbin, Contracts, § 2 (1963); 4 Williston, Contracts, § 610B (3d ed. Jaeger 1961).

The critical factor in Pomponio is not the distinction between lessor and lessee but, as specifically stated in footnote 3, the absence of automatic incorporation. Unlike Century Village, supra, Kaufman, supra, and the present case, the declaration of condominium in Pomponio, supra, did not incorporate subsequent statutory amendments. This crucial distinction is made even more explicit by the provisions in section VII of the declaration and section XVII (D) and (K) of the long-term lease in Century Village, supra, and paragraph 8 of the declaration in Kaufman, supra, which expressly require the lessor’s written signature and consent with respect to any modification or changes in obligation under the recreation lease. In each case, however, the court determined that the lessor, without written consent, was bound by the incorporated statutory amendments.

Because we find that Section 718.401(4), Florida Statutes (1979) is incorporated into the declaration of condominium of appellant condominiums, we also find Section 718.401(4) constitutional as applied to appellants.

Reversed and remanded for proceedings consistent with this opinion.

      . Section 711.63(4), Florida Statutes (Supp. 1974) was amended by the 1975 Legislature and renumbered to 718.401(4) by the 1976 Legislature. The statute was further amended by the 1979 Legislature to include “association” in addition to “unit owner” throughout subsection (4). Ch. 79-166, § 1, Laws of Fla.

      . See note 1, supra.

      . Pomponio, supra, 775 n.3.

      . Id. Neither the words “as amended from time to time” nor any other suggestion that the condominium be bound by future statutory amendments is found in the declaration of condominium in Pomponio.