author: ERVIN, Judge.

text:
    Alcene McKAHN, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. AB-493.
    District Court of Appeal of Florida, First District.
    June 9, 1981.
    Alcene McKahn, pro se.
    Malcolm S. Greenfield, Tallahassee, for respondent.
   ON PETITION FOR WRIT OF MANDAMUS

ERVIN, Judge.

Petitioner, an inmate, filed an original petition for writ of habeas corpus, alleging The Florida Parole and Probation Commission (hereafter referred to as the Commission) erred in setting his presumptive parole release date. Having received the petition seeking habeas corpus relief prior to the filing of our decision in Daniels v. Florida Parole & Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), we treated it as a petition for writ of mandamus, pursuant to Florida Rule Appellate Procedure 9.040(c), and considered its merits. See Moore v. Parole and Probation Commission, 289 So.2d 719 (Fla.1974).

The petition and its attachments show that on January 18, 1980, petitioner was convicted for possession of three counts of a controlled substance (i. e., heroin, cocaine and dilaudid) and was given three five-year concurrent sentences. It also alleged that on December 17, 1980, the Commission reviewed a recommended parole date of February 16, 1982 and revised that date to September 17, 1982. The latter date was determined by taking into account a combination of various factors, including a salient factor score of zero, reflecting no significant criminal history, and an offense characteristic of “very high ... drugs: .. . hard drugs possession with intent to distribute/sale (not exceeding $100,000).” The maximum matrix range term was derived by referencing these factors to the objective parole criteria guidelines, set out in Florida Administrative Code Rule 23-19.05, and the Commission aggravated that term by adding 13 months for a concurrent sentence.

In his petition, McKahn contests two of the Commission’s actions. He first claims that the Commission’s rule treating concurrent sentences as equivalent to consecutive sentences for purposes of “aggravation” undermines the judicial sentencing function and is an invalid exercise of delegated legislative authority. See Fla.Admin. Code Rule 23-19.01(5). We decline to examine this issue by extraordinary writ, since ordinary avenues of appeal have not been exhausted. Comer v. Florida Parole and Probation Commission, 388 So.2d 1341 (Fla. 1st DCA 1980).

He next contends that his offense characteristic was incorrectly established. The documents in his appendix substantiate that he had been charged, convicted and sentenced only for simple possession of a controlled substance. Intent to distribute or sell drugs was nowhere reflected in petitioner’s arrest affidavit, the informations filed against him, or the judgment and sentence of the court. Thus, petitioner asserts that his offense characteristic was excessively scored, and that under the Commission’s objective system, the offense should have been scored in the range “low moderate ... simple possession of ‘hard drugs’ (small quantity, personal use).”

After reviewing the petition, and finding no factors explained on the examiner’s worksheet, or on the final order of the Commission indicating that petitioner’s actual offense behavior was more severe than simple possession of hard drugs, we issued a show cause order to the Commission directing it to respond to petitioner’s claim within 20 days. Upon receiving no response, we next ordered the Commission to reduce petitioner’s offense characteristic to “low moderate,” and to reduce his presumptive parole release date accordingly. The day following the issuance of our second order, the Commission responded to our earlier inquiry, stating that it had, at a public meeting held on April 1, 1981, altered petitioner’s offense characteristic to “low”, changed the salient factor score from “0” to “one”, added another aggravating factor of eight months, and reached the same presumptive parole release date as previously entered.

The Commission is apparently of the belief that it possesses the discretion to add factors, without a good cause explanation, after its final order has been entered establishing a presumptive parole release date, so long as the previously entered date is unchanged by the later order. This court cannot agree and finds that the statutes clearly point to a different conclusion.

Under the circumstances, the Commission was vested with no discretion to change the offense characteristic, or the salient factor score, or to add an additional aggravating factor in its determination of a parole date. Section 947.172(3) unambiguously states that a presumptive parole release date “shall become binding on the commission when agreement on a ... date is reached.” The only explicitly stated exceptions to the binding effect of the date entered are “for reasons of institutional conduct or the acquisition of new information not available at the time of the initial interview.” Section 947.16(4). Additionally, we are of the view that Section 947.16(4) should be considered in pari materia with Section 947.-173(3), permitting the Commission to modify a parole release date “for good cause in exceptional circumstances.” The record fails to show the applicability of any exceptional circumstance. What the Commission has sought to do here is to circumvent the effect of the statute precluding the changing of a presumptive parole release date— without showing the existence of any statutory exceptions, or offering any exceptional circumstances for the modification — by manipulating the criteria upon which parole decisions are made, thereby reaching the same date previously established. This it cannot do.

The purpose of the Objective Parole Guidelines Act of 1978 was to replace a system which had formerly decided parole solely by subjective methods. See Section 947.002 and Daniels v. Florida Parole and Probation Commission, supra. Under the present act, parole decisions can only be made after the Commission has applied objective parole guidelines to a specific factual situation. See §§ 947.165 and .172. The Commission is not at liberty to ignore, capriciously or arbitrarily, the expressed legislative intent of Chapter 947 or the Commission’s own rules. Cf. James v. Florida Parole and Probation Com’n., 395 So.2d 197 (Fla. 1st DCA 1981). Florida Administrative Code Rule 23-19.01(1) explicitly states that “the offense severity rating shall reflect the present offense of conviction.” The petitioner, as stated, was convicted for possession of heroin, cocaine and dilaudid. The only offense characteristic applicable to petitioner’s conviction, as established by the Commission’s rules, and as supported by the record, is simple possession of hard drugs, thereby requiring that the offense characteristic be placed in the category of “low moderate.”

Finally, in the absence of a showing of either the statutory exceptions delineated under Section 947.16(4), or exceptional circumstances for good cause permitted by Section 947.173(3), the Commission had no discretion to increase the salient factor score or add an aggravating factor after it had previously entered its order fixing a presumptive parole release date. The import of the Objective Parole Guidelines Act is that if the Commission desires to alter factors affecting a parole decision, it must show reasons for the change, and support those reasons by a record foundation.

Accordingly, the writ of mandamus is granted. The Commission is directed to revise petitioner’s offense characteristic to “low moderate,” and delete both the additional salient factor score as well as the added aggravating factor applied for the first time by the action taken on April 1, 1981, and then to establish petitioner’s presumptive parole release date in conformity with the modified criteria.

It is so ordered.

ROBERT P. SMITH and McCORD, JJ., concur.

      . This aggravation was adequately explained on the Commission action forms, Baker v. Fla. Parole and Prob. Commission, 384 So.2d 746 (Fla. 1st DCA 1980), though the docket numbers of the concurrent convictions were absent.

      . See Fla.Admin.Code Rule 23-19.05(v)(2).

      . This is an obviously incorrect characteristic. The only drug-related offense characteristic in the “low (least serious)” range involves the possession of a small quantity of marijuana or soft drugs for personal use. Heroin is not a soft drug in Florida. See Fia.Admin.Code Rule 23 -19.05, n. 5.

      . We note that in 1979 the hearing examiner recommended to the Commission a salient factor score of 1, but the Commission ultimately did not do so. Perhaps the juggling of the salient factor score is a function of one file being used by the hearing examiner to discuss the parole process with an inmate and make a recommendation to the Commission, and a second, different file being used by the Commission to review the hearing examiner’s recommendation. Invariably, the two files will contain different documents. Petitioner either has a prior conviction or he does not. If different files are used, the hearing examiner should list on the worksheet, by checklist or otherwise, every document contained in the institutional file considered at the parole hearing. Only then will Commission review of the recommendation be meaningful; review based on an entirely different record is improper — it nullifies any explanation offered by the inmate of facts presented at the initial hearing and imposes a heavy burden on an inmate to prove error ■in documents unknown to him when he believes his presumptive parole release date is incorrect.

      . The new aggravating factor applied was explained as follows:
      Offender had possession of the controlled substance with intent to sell as evidenced by the fact that he was in the process of selling $10 quantity to undercover officer Diaz when alarmed by the approach of a police car and attempted to flee ... 8 months.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ricky MITCHEM, Appellant, v. STATE of Florida, Appellee.
    No. VV-13.
    District Court of Appeal of Florida, First District.
    June 9, 1981.
    Michael E. Allen, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

Defendant appeals from an order revoking his probation on the grounds that he committed three separate armed robberies. Although there is sufficient evidence to support the finding that defendant robbed Nugget Oil Store # 7 and we affirm the order of revocation on this ground, there was no evidence introduced at the violation of probation hearing to support the findings that defendant also robbed Nugget Oil Store # 11 and a Taco Rancho Restaurant. Therefore, we remand the case to the trial court with instructions to strike that portion of the order of revocation of probation finding defendant robbed Nugget Oil Store #11 and the Taco Rancho Restaurant. Otherwise, that portion of the order revoking defendant’s probation on the finding that he robbed Nugget Oil Store # 7 is affirmed.

AFFIRMED in part and REVERSED and REMANDED in part.

McCORD, BOOTH and SHIVERS, JJ., concur.


text:
    Glenwood Brooks COBB, Appellant, v. Molly Ann COBB, Appellee.
    No. WW-379.
    District Court of Appeal of Florida, First District.
    June 9, 1981.

      Bill A. Corbin, Blountstown, for appellant.
    Robert B. Staats, Panama City, for appel-lee.
   PER CURIAM.

Appellant failed to make payments on certain household furnishings awarded to appellee pursuant to a final decree of dissolution. The Circuit Court found that the furnishings had been awarded to appellee “not as any settlement of property rights between the parties but upon a marital duty of the husband to the wife,” and further found that appellant had the ability to pay for the furnishings but wilfully refused to do so. Consequently, the court ordered appellant to make satisfactory arrangements with the creditor within 30 days or be incarcerated in the county jail for a period not exceeding 90 days.

Appellant now urges that this order was erroneous, as the Florida Constitution prohibits incarceration for nonpayment of a debt. Florida Constitution, Art. I, § 11 (1968). Despite this constitutional prohibition, however, contempt proceedings may be used to enforce the payment of court-ordered alimony because of the public necessity that dependents be supported. Chapman v. Lamm, 388 So.2d 1048 (Fla. 3d DCA 1980); Gersten v. Gersten, 281 So.2d 607 (Fla. 3d DCA 1973). The trial court held a hearing at which testimony was taken and determined that the award sought to be enforced here arose out of a marital duty. Nothing in the record before this court contradicts that determination; and the order below is, accordingly, AFFIRMED.

McCORD, BOOTH and SHIVERS, JJ,, concur.


text:
    STATE of Florida, Appellant, v. W. E. T., a child, Appellee.
    No. XX-27.
    District Court of Appeal of Florida, First District.
    June 9, 1981.

      Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellant.
    Michael E. Allen, Public Defender, and Thomas Presnell, Jr., Asst. Public Defender, for appellee.
   ERVIN, Judge.

The state brings this appeal, contending that the trial court erroneously granted ap-pellee’s motion to suppress marijuana seized in a vehicle where appellee was seated as a passenger. The marijuana was found pursuant to a search of that vehicle under the seat in which the appellee had been sitting. The appellee disavowed any property or possessory interest in both the marijuana and the searched vehicle. The lower court determined that the search was illegal and that the appellee had automatic standing to contest the legality of the search because the appellee had been charged with possession of more than 20 grams of cannabis in violation of Section 893.13(l)(e), Florida Statutes (1979).

Without ruling on the issue concerning the legality of the search, we agree with the state that the appellee did not have standing. The automatic standing rule has been abolished by both the United States Supreme Court in U. S. v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) and in Florida in Norman v. State, 388 So.2d 613 (Fla. 3d DCA 1980). The Salvucci court clearly held that a defendant could not obtain standing unless he had a “legitimate expectation of privacy in the [area]” where the property was seized. 100 S.Ct. at 2555. Here, the appellee had no such expectation of privacy in the area underneath the car seat because he had disavowed any interest in the automobile or the property seized. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Norman v. State, supra.

Accordingly, the order granting the ap-pellee’s motion to suppress is quashed and this case is remanded for further proceedings consistent with this opinion.

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


author: FERGUSON, Judge.

text:
    Albert John MYLES, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 78-1957.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.

      Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   FERGUSON, Judge.

After jury conviction for crimes committed in March, 1978, John Myles, Jr. was sentenced to consecutive sentences of ninety-nine years in the state penitentiary for second-degree murder and to thirty years for involuntary sexual battery. The trial judge elected to retain jurisdiction pursuant to Section 947.16(3), Florida Statutes (1979) (originally enacted in 1977 and made effective June 1978). Myles appeals.

The trial court’s retention of jurisdiction under Section 947.16, constitutes an ex post facto application of the statute because this law attaches legal consequences to crimes which Myles committed before the law took effect and affects him in a disadvantageous fashion by in effect extending his jail time. State v. Williams, 397 So.2d 663 (Fla.1981).

The remaining issue dispositive of this appeal is whether Myles’ confession was voluntary and properly entered into evidence or whether the statement should have been suppressed as a matter of law because Myles was of limited intelligence and functionally illiterate rendering him mentally incompetent to knowingly and intelligently waive his Miranda rights.

Although mental capacity may be considered in determining whether under the totality of circumstances a confession is voluntary, State v. Chorpenning, 294 So.2d 54 (Fla. 2d DCA 1974), the lack of mental capacity is generally considered only as it relates to credibility and not admissibility, see, e. g., Palmes v. State, 397 So.2d 648 (Fla.1981); Reddish v. State, 167 So.2d 858 (Fla.1964), and a confession will not be excluded on these grounds where it is shown that the defendant understands his rights, see, e. g., Ashley v. State, 370 So.2d 1191 (Fla. 3d DCA 1979); Lane v. State, 353 So.2d 194 (Fla. 3d DCA 1977).

Here there is no question that Myles was read his Miranda rights. There is sufficient evidence to justify the finding of the trial court that Myles knowingly waived these rights. Even though Myles had the literary level of a first grader, he was found to be of borderline intelligence. The doctor hired by the defense to evaluate Myles testified that Myles was emotionally, psychologically, and intellectually competent to make a free and knowing waiver of his rights. Myles was not a juvenile, nor do we find any evidence in the record which would justify reversing the decision of the trial court. See, e. g., State v. Riocabo, 372 So.2d 126 (Fla. 3d DCA 1979), dismissed, 378 So.2d 348 (Fla.1979). To the contrary, the record demonstrates that the State met its burden of proving that Myles’ statement was voluntary.

We reverse with respect to retention of jurisdiction over the offender, affirm the conviction, and remand for correction of the sentence in accordance with this opinion.

      . We note that the issue of voluntariness is reached here because Myles was in custody, was interrogated by the police and had been given the Miranda warnings.


author: DANIEL S. PEARSON, Judge.

text:
    A. L. B. a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2323.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

We affirm the adjudication of delinquency based on underlying charges of burglary and petit theft upon a holding that (1) when police officers on routine midday patrol observed the juvenile crouched down in a yard at the rear of a private residence and, as they approached closer and exited the patrol car, saw the juvenile walk away from the home and drop a glass piggy bank filled with coins, the officers had a legally well-founded concern for the safety of property in the vicinity so as to justify their stop of the juvenile, Section 856.021, Florida Statutes (1977); State v. Ecker, 311 So.2d 104 (Fla.1975); (2) that concern was not dispelled by the juvenile’s explanation of his presence and conduct, and the officers therefore had probable cause to effect the arrest of the juvenile on a charge of loitering and prowling; (3) the fact that the police formally arrested the juvenile for a different crime (burglary) upon their discovery within minutes of stopping the juvenile that the home next door to where they first saw the juvenile had been burglarized and the piggy bank stolen therefrom does not affect the validity of the juvenile’s detention, Thomas v. State, 395 So.2d 280 (Fla.3d DCA1981); (4) even if, arguendo, the juvenile’s explanation of his presence and conduct had been sufficient to dispel any concern or alarm, so as to make his detention unlawful, the evidence upon which the finding of guilt was rendered (that is, that the juvenile was seen in possession of and dropping a piggy bank which was taken that day from the burglarized home) was discovered by independent legal means and not through exploitation of any illegal detention of the juvenile and was thus admissible, see, e. g., United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); and (5) even if, arguen-do, the juvenile’s admissions to the police were inadmissible as being the fruit of an illegal detention of him, see Wong Sun v. United States, supra, the error in admitting such admissions was harmless.

Affirmed.


text:
    Walter John WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-373.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    Bennett H. Brummer, Public Defender and Jeffrey Samek, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Richardson v. State, 246 So.2d 771 (Fla.1971); Holman v. State, 347 So.2d 832 (Fla. 3d DCA 1977); Mobley v. State, 327 So.2d 900 (Fla. 3d DCA 1976); Pizzo v. State, 289 So.2d 26 (Fla. 2d DCA 1974); Buttler v. State, 238 So.2d 313 (Fla. 3d DCA 1970).


text:
    Melvin ROWELLS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-667.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    Bennett H. Brummer, Public Defender and Jeffrey Samek, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacobs, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. State v. Cumbie, 380 So.2d 1031 (Fla.1980).


text:
    Eddie EDDINS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-737.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    Bennett H. Brummer, Public Defender and William M. Grodnick, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. State v. Cumbie, 380 So.2d 1031 (Fla.1980); Clark v. State, 363 So.2d 331 (Fla.1978); Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977); Williamson v. State, 338 So.2d 873 (Fla.3d DCA 1976); Mobley v. State, 327 So.2d 900 (Fla.3d DCA), cert. denied, 341 So.2d 292 (Fla.1976).


text:
    The STATE of Florida, Appellant, v. David Lee THOMPSON, Appellee.
    No. 80-821.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.

      Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Joseph C. Segor, Asst. Public Defender, for appellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Appellant, the State of Florida, contends that the trial judge erred in granting the sworn motion to dismiss filed by the appel-lee, David Lee Thompson, who was charged with one count of first degree murder, two counts of attempted first degree murder, and one count of unlawful possession of a firearm while engaged in a criminal offense.

We agree that the trial judge committed reversible error in granting the motion to dismiss the indictment. The record shows (a) that the sworn motion did not itself demonstrate that “the undisputed facts do not establish a prima facie case against the defendant” so that dismissal would not be justified even if the State had merely demurred or not responded at all to the motion, and (b) that the prosecution filed an appropriate sworn traverse which, under Fla.R.Crim.P. 3.190(d), mandatorily required that the motion be denied. State v. Johnson, 398 So.2d 500 (Fla. 3d DCA 1981); State v. Horne, 399 So.2d 49 (Fla. 2d DCA 1981); State v. Alford, 395 So. 2d 201 (Fla. 4th DCA 1981); State v. Evans, 394 So.2d 1068 (Fla. 4th DCA 1981); State v. Lawler, 384 So.2d 1290 (Fla. 5th DCA 1980); State v. Cook, 354 So.2d 909 (Fla. 2d DCA), cert. dismissed, 359 So.2d 1212 (Fla.1978).

The order dismissing the indictment is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


author: BASKIN, Judge.

text:
    The ESTATE OF Encarnacion Luaces De GARCIA, Deceased, Appellant, v. Carlos GARCIA, the surviving spouse of the decedent, Encarnacion Luaces De Garcia, Appellee.
    No. 80-1043.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.

      Gars, Dixon & Shapiro and Irwin S. Gars, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and R. Benjamin Reid, Miami, for appellee.
    Before HENDRY, BASKIN and PEARSON, DANIEL, S, JJ.
   BASKIN, Judge.

In this appeal from an action by the wife’s estate against the husband challenging the trial court’s entry of summary judgment and its grant to the husband of an elective share, two issues require resolution. First, we must consider the question raised by the estate in its direct appeal, that is, whether the husband waived, by the execution of an antenuptial agreement in 1956, rights created by the legislature in 1976, including the right to an elective share. Second, we review the question raised by the husband in his cross-appeal, that is, whether by executing the antenuptial agreement he waived his right to homestead. We hold that the husband’s waiver of rights to his wife’s assets included rights later created by the legislature. We reverse the summary judgment insofar as it permitted the husband to obtain an elective share and affirm the trial court’s decision insofar as it ruled that the husband effectively waived his homestead rights.

A few days before their 1956 marriage, Encarnación Luaces and Carlos Garcia executed an antenuptial agreement which provided:

The Parties hereto expressly agree and covenant that, in the event of the death of the Second Party, the First Party shall not have, and will not assert any claim, interest, estate or title under the laws of any state or of any foreign nation because of such survivorship in or to the property, real, personal or mixed, or life insurance of which such deceased party may die seized or possessed, except as hereinafter provided. The Party of the First Part, for himself and his heirs, hereby relinquishes to the heirs, devisees, administrators, executors and assigns of the Second Party any and all of his claim, distributive share, interest, estate or title that he would be entitled to as surviving husband; and he further agrees, upon demand, to make, execute and deliver to the heirs, devisees, administrators, executors and assigns of the Second Party any and all such claim, interest, estate, right, or title; and, on demand, to make, execute and deliver to the heirs, devisees, administrators, executors and assigns of such deceased party, any and all assignments, assurances, deeds, instruments and receipts that may be necessary and required to efectually [sic] carry out and make effective the agreements herein contained. In the event that either party shall die testate, nothing herein contained shall be a bar to the survivor from claiming, under said last will and testament, in the event that said survivor is a beneficiary thereunder.

The agreement also stated:

That all properties of any name or nature, real, personal or mixed wherever . . . found, which belong to [Encarnación] prior to the contemplated marriage between the parties, shall be and remain forever the personal Estate of [Encarna-ción] ....
All property belonging to [Encarnación] at the commencement of the marriage, or acquired by, or coming to her during the marriage, shall be held and enjoyed by her, and be subject to her disposition as her separate property, in the same manner as if this proposed marriage had never been celebrated ....

The wife executed a will in 1973 leaving Carlos Garcia a life estate in her home and, a few days later, added a codicil providing him $14,000 a year derived from interest on bonds.

In 1973 the legislature amended the dower laws and extended dower to husbands. Ch. 73-107, Laws of Fla. (1973). Subsequently, the legislature enacted the Florida Probate Code, effective January 1, 1976, and replaced dower with the right to an elective share. On February 21, 1979, En-carnación Luaces de Garcia died. Her husband filed for an elective share, but the estate resisted the claim. Upon motion, the trial court entered Summary Final Judgment finding:

1. That all rights of husband Carlos Garcia, except that of elective share were waived by the Ante-Nuptial Agreement by virtue of F.S. 732.702;
2. That said statute controls, although it was enacted after execution of the agreement, since by said statute the legislature established the public policy regarding such agreements and how they should be construed.
3. That Carlos Garcia, by laches, cannot now attack the agreement twenty-three years after its execution and after the death of his wife, during which time he admittedly learned early that she was a wealthy woman.
4. That despite all of the above, Carlos Garcia did not waive his elective share, since it was unknown to him at that time, and as a matter of fact only came into existence many years later by enactment of law by the legislature. One cannot waive that which is not known or in existence at the time, nor contemplated in the future;
5. That furthermore, although the language of the agreement is extremely strong to the effect that the wife’s property shall be entirely and forever hers under all circumstances, it would be inequitable to deprive Mr. Garcia of rights by virtue of a statute enacted after the execution of the agreement (F.S. 732.702) while at the same time deprive him of the benefits of a statute likewise enacted after such execution (F.S. 732.201); wherefore, it is,
ORDERED AND ADJUDGED as follows:
That Estate’s Motion for Summary Judgment is GRANTED as to all claims of Carlos Garcia except that of Elective Share, upon which said Motion is DENIED.

First, we review the 1976 legislation according the husband an elective share and consider the question concerning whether he may be held by a 1956 agreement to have waived rights which did not arise until 1976.

We are guided in our endeavor by established principles, among them that statutes operate prospectively unless a contrary intent is clearly expressed. Dewberry v. Auto-Owners Insurance, Co., 363 So.2d 1077 (Fla.1978). Because the Florida Probate Code, effective 1976, does not contain clear language evidencing a contrary intent, Haney v. Holmes, 364 So.2d 81 (Fla.2d DCA 1978), appeal dismissed, 367 So.2d 1124 (Fla.1979), the principle prevails. Section 731.-011, Florida Statutes (1977), the Florida Probate Code, tells us that procedural rights under the Probate Code apply prospectively whereas vested substantive rights remain unaffected and are determined by the law in effect at the time of death. See also In re Estate of Reed, 354 So.2d 864 (Fla.1978); In re Estate of Rincon, 327 So.2d 224 (Fla.1976); In re Estate of Geringer, 300 So.2d 710 (Fla.3d DCA 1974), cert. denied, 311 So.2d 114 (Fla.1975); In re Roger’s Estate, 171 So.2d 428 (Fla.2d DCA 1965). Encarnacion Luaces de Garcia died on February 21, 1979; thus the law in effect at the time of her death, the 1976 Florida Probate Code, governs this proceeding.

Section 732.702 provides that a right of election may be waived:

(1) The right of election of a surviving spouse, the rights of the surviving spouse as intestate successor or as a pretermitted spouse, and the rights of the surviving spouse to homestead, exempt property, and family allowance, or any of them, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party. Unless it provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce, is a waiver of all rights to elective share, intestate share, pretermitted share, homestead property, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to either from the other by intestate succession or by the provisions of any will executed before the waiver or property settlement.
(2) Each spouse shall make a fair disclosure to the other of his or her estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage.
(3)No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage.

§ 732.702, Fla.Stat. (1977).

Appellee maintains that his waiver in the antenuptial agreement did not relinquish his claim to “after-acquired rights”, and, he argues, he may therefore assert a claim to rights first created by law in 1976 despite his waiver. We disagree for reasons based on logic as well as law. It is obvious that at the time the husband relinquished his rights he could not predict the condition or size his wife’s estate would attain twenty years later. He was, in effect, surrendering rights to unknown or undetermined assets, not only because the future is unforeseeable, but also because under section 732.702, Florida Statutes (1977), disclosure in antenuptial agreements is unnecessary.

While it is generally. true that a waiver is the intentional relinquishment of known rights, Gulf Life Insurance Co. v. Green, 80 So.2d 321 (Fla.1955), by a party in possession of all material facts, Fireman’s Fund Insurance Co. v. Vogel, 195 So.2d 20 (Fla.2d DCA 1967), a waiver of rights in an antenuptial agreement is a different matter. See generally Hockenberry v. Donovan, 170 Mich. 370, 136 N.W. 389 (1912); In re McGlones Will, 17 N.Y.S.2d 316, 258 App. Div. 596, rev’d on other grounds, 284 N.Y. 527, 32 N.E.2d 539 (1940), aff’d Irving Trust Co. v. Day, 314 U.S. 556, 62 S.Ct. 398, 86 L.Ed. 452 (1942). The absence of a statutory disclosure requirement for antenuptial agreements helps to persuade us that a spouse may waive a right to unknown assets.

We therefore hold that Carlos Garcia relinquished his right to an elective share of his wife’s estate, a right created by the legislature subsequent to the execution of the antenuptial agreement in which he waived claims to her assets. The waiver provisions of the statute in effect at the time of her death, section 732.702, Florida Statutes (1977), apply. The antenuptial agreement was a written agreement signed by the husband as required by the statute. Thus, the husband’s waiver of “any claim” waived his right to an elective share.

Turning to the cross-appeal, we find no error in the trial court’s decision denying homestead. Carlos Garcia waived all claims, including his right to homestead, in the antenuptial agreement. The parties clearly stated their intent in the opening portions of their antenuptial agreement. Courts are not free to interfere. Potter v. Collin, 321 So.2d 128 (Fla.4th DCA 1975), cert. denied, 336 So.2d 1180 (Fla.1976).

For these reasons, we reverse the summary judgment entered by the trial court insofar as it granted Carlos Garcia an elective share.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

      . Section 732.201, Florida Statutes (1977):
      732.201 Right to elective share. — The surviving spouse of a person who dies domiciled in Florida shall have the right to a share of the estate of the deceased spouse as provided in this part, to be designated the elective share.

      . § 732.702(2), Fla.Stat. (1977). See In re Estate of Reed, supra.

      . The inchoate right of dower is a creation of the legislature which may modify or abolish it at will. In re Estate of Donner, 364 So.2d 742 (Fla.3d DCA 1978). Dower vests upon the death of the spouse. In re Ginsberg’s Estate, 50 So.2d 539 (Fla.1951).


text:
    SEABOARD COASTLINE RAILROAD COMPANY, a Virginia Corporation, Appellant, v. Artis DENNARD, Appellee.
    No. 80-1150.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    Goodwin, Ryskamp, Welcher, Carrier & Donoff and Kenneth L. Ryskamp, Miami, for appellant.
    Magill & Reid and Charles A. Curran and Kevin P. O’Connor, Miami, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Upon return of the jury verdict finding that appellee’s loss of a portion of a finger was not the result of appellant’s negligence, the trial court granted a new trial. The court based its ruling upon a finding that defense counsel’s questions directed to the orthopedic surgeon who treated Mr. Den-nard were prejudicial. We disagree and reverse the order granting a new. trial.

During the trial, appellant questioned the necessity for appellee’s psychiatric care after he sustained an injury inflicted by a grease gun. Questioning of the psychiatrists and of the treating orthopedic surgeon was intense. The surgeon, Dr. Nadler, testified that he had studied psychiatry and as part of his regular practice dealt with psychiatric problems. He did not recommend psychiatric treatment for appellee. The challenged questions are included in the following trial excerpt:

Q. (By counsel for appellant) Sir, you never told or recommended to him that he see a psychiatrist, did you?
A. No.
Q. Did you feel, sir, in this particular case that with the litigation factor involved, compensation being sought to be gotten from a jury trial, the fact that a psychiatrist would be in the case, that a psychiatrist would merely be another crutch for Mr. Dennard to lean on rather than a therapy aid?
MR. O’CONNOR: Just a moment, I object to this. There is no proper predicate.
THE COURT: Sustained.
Q. (By Mr. Goodwin) Are you aware in your practice down here, about the litigation here in Dade County, the lawsuits that are brought where psychiatrists are brought in to testify about an emotional overlay or a psychogenic overlay in a case where an orthopedic surgical handling has also taken place?
MR. O’CONNOR: Your Honor, let’s approach the bench.
THE COURT: I sustain the objection.

The court expressed its view of the questioning:

[T]he statements which were made might tend to discredit the entire field of psychiatry before the jury and most of the case is going to turn on the issue of whether or not the plaintiff has suffered psychiatric injury.

Thereafter, the court entered an order ruling in part:

6. The thrust of this line of questioning was to discredit the psychiatric branch of the medical profession, and it appeared to be deliberately designed to create the impression with the jury that, in general, psychiatrists combine with plaintiffs in Dade County, and with this plaintiff in particular, to promote fraudulent claims rather than to treat legitimate medical problems. Thus, the jury was prejudicially influenced by matters not properly before it.

Evaluating the foregoing questions in the context of this case, we hold that defense counsel’s interrogation constituted proper cross-examination. The inquiry was designed to lay the predicate requested by opposing counsel enabling Dr. Nadler to express his opinion concerning whether a psychiatrist would merely be another “crutch” for Mr. Dennard “to lean on rather than dealing with the problem” as he had stated in his deposition. We find no impropriety in the attack upon the credibility of other witnesses. Furthermore, the jury returned a verdict in favor of appellant on the issue of liability; the challenged questions were directed to the subject of damages and were therefore not material to the verdict. In our view, the trial court’s ruling that the questions discredited the entire branch of psychiatric medicine constituted an incorrect basis for the granting of a new trial. See generally Springfield Life Insurance Co. v. Edwards, 375 So.2d 1120 (Fla. 3d DCA 1979); Bishop v. Watson, 367 So.2d 1073 (Fla. 3d DCA 1979); Sharp v. Lewis, 367 So.2d 714 (Fla. 3d DCA 1979).

In his cross-appeal, appellee cites as error the trial court’s refusal to admit Rules and Regulations of the Mechanical Department. He contends that a violation of these rules constitutes negligence, citing Atchison, Top. & S. F. Ry. v. Ballard, 108 F.2d 768 (5th Cir.), cert. denied, 310 U.S. 646, 60 S.Ct. 1096, 84 L.Ed. 1413 (1940). The point of appellee’s argument is dulled by the fact that the court admitted some of the rules while sustaining objections to others. We therefore reject that argument.

The order granting a new trial is reversed and the cause is remanded for entry of judgment on the verdict.

      . We have jurisdiction to entertain the cross-appeal. Appeals taken from new trial orders are to be treated as appeals from final orders and the reviewing court has authority to deal with other issues. Bowen v. Willard, 340 So.2d 110 (Fla.1976); Fla.R.App.P. 9.110(h).

      . These rules and regulations are contained in a booklet of company safety rules distributed by Seaboard to its employees.


author: BARKDULL, Judge.

text:
    Marion W. BOWERS, Appellant, v. Ruth Knust MOZINGO, Appellee.
    No. 80-1185.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.

      Herman T. Isis, Coral Gables, for appellant.
    Robert E. Rutledge, Jr., South Miami, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BARKDULL, Judge.

The appellant seeks review of a final judgment in a declaratory judgment action, wherein the trial judge held that the defendant’s (appellee herein) recorded judgment lien was imposed upon the interest of the appellant in certain real property and that, upon sale, the property would pass subject to the lien.

On appeal, it is the contention of the appellant that the trial court erred because the facts of the case clearly show he had a sufficient possessory interest in the subject property to entitle him to protection of the homestead exemption provisions of Article X, Section 1, Constitution of the State of Florida (1885) prior to the appellee obtaining her judgment lien. On the other hand, the appellee relies on Article X, Section 7, Constitution of the State of Florida (1885), pertaining to homestead for purposes of ad valorem taxation, and contends that the appellant did not file for homestead exemption for taxation until 1965, subsequent to the recordation of the judgment lien and, therefore, her judgment lien is paramount. Secondly, she contends that two people cannot claim the same homestead. We cannot agree with either position for the following reasons.

This case is governed by Article X, Section 1, Constitution of the State of Florida (1885), which exempts a homestead from forced sale and provides that no judgment or execution shall be a lien thereon. Clearly, this is a different thing than homestead exemption, as defined for tax purposes. Doing v. Riley, 176 F.2d 449 (5th Cir. 1949). Therefore, the appellee’s reliance on Article X, Section 7, Constitution of the State of Florida (1885) is misplaced.

The facts show that the appellant’s father and mother owned the property in question and qualified for homestead under Article X, Section 1, Constitution of the State of Florida (1885). The appellant- was running a store in Georgia in 1963. Illness overcame the father and a portion of the appellant’s family moved in to take care of his parents. At this time, there can be no question that the appellant could not claim homestead as it was vested in his father as head of the household. Upon the death of the father, his homestead inured to the benefit of his wife and children, preventing the property being sold for his debts. Title then vested in the mother. Upon the death of the father, his right to homestead exemption, for tax purposes, ceased and did not pass by descent to the mother. Bendl v. Bendl, 246 So.2d 574 (Fla.3d DCA 1971); Menendez v. Rodriguez, 106 Fla. 214, 143 So. 223 (1932). The property did not become homestead property while titled in the mother, because she failed to meet one of the tests for claiming homestead under Article X, Section 1, Constitution of the State of Florida (1885), to wit: family headship. In re Estate of Wilder, 240 So.2d 514 (Fla. 1st DCA 1970). In March 1963, after he sold his business, the appellant joined his family in Florida and resided with his mother. The property was then (on May 12, 1964) transferred by the mother to herself and the son, setting up a tenancy in common with right of survivorship. Prior to this last transfer, the appellee obtained her judgment and recorded her judgment lien on September 18, 1963.

These facts clearly show that the appellant did not have ownership in the property prior to recordation of the judgment lien, which is necessary to acquisition of the homestead right. Hinson v. Booth, 39 Fla. 333, 22 So. 687 (1897). Thus, the appellant could not legally have a right of homestead based on a mere possessory interest and his argument must fail. The judgment lien could not attach to the property in question until it was owned by the appellant. First National Bank v. Peel, 107 Fla. 413, 145 So. 177 (1933); Cheves v. First National Bank, 79 Fla. 34, 83 So. 870 (1919). We thus find both the claimed homestead right (if proven) and the judgment lien would attach to the property simultaneously upon the appellant’s acquiring ownership thereof. This being the case, the rule accords priority to the homestead right, where the homestead right and the lien attach simultaneously, as in the case of purchase or inheritance of land by a judgment debt- or. Milton v. Milton, 63 Fla. 533, 58 So. 718 (1912); Pasco v. Harley, 73 Fla. 819, 75 So. 30 (1917); Quigley v. Kennedy & Ely Ins., Inc., 207 So.2d 431 (Fla.1968); Aetna Insurance Company v. LaGasse, 223 So.2d 727 (Fla.1969).

In the final judgment appealed herein, the trial judge did not make a determination as to whether or not the appellant was head of the family at the time he acquired ownership of the property. This issue must be resolved in order to settle priority of claims in the instant case.

Therefore, the order appealed is hereby reversed, and the cause remanded to the trial court for a determination as to whether or not the appellant met the necessary criteria to claim a homestead right under Article X, Section 1, Constitution of the State of Florida (1885) at the time he acquired ownership of the subject property.

Reversed and remanded, with directions.

      . “Section 1. Exemption of homestead; extent. — A homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State, together with one thousand dollars worth of personal property, and the improvements on the real estate, shall be exempt from forced sale under process of any court, ... and no judgment or decree or execution shall be a lien upon exempted property except as provided in this Article.”

      . “Section 7. Exemption of homestead from taxation. — Every person who has the legal title or beneficial title in equity to real property in this state and who resides thereon and in good faith makes the same his or her permanent home, or the permanent home of another or others legally or naturally dependent upon said person, shall be entitled to an exemption from all taxation, except for assessments for special benefits, up to the assessed valuation of five thousand dollars on said home and contiguous real property, as defined in Article X.... Said title may be held by the entireties, jointly, or in common with others, and said exemption may be apportioned among such of the owners as shall reside thereon, as their respective interests shall appear, but no such exemption of more than five thousand dollars shall be allowed to any one person or any one dwelling house, nor shall the amount of the exemption allowed any person exceed the proportionate assessed valuation, based on the interest owned by such person.... ”

      . DeLalio v. Food Palace, Inc., 330 So.2d 835 (Fla.3d DCA 1976); Cuna Mutual Insurance Society v. Adamides, 334 So.2d 75 (Fla.3d DCA 1976); Turner v. Lorber, 360 So.2d 101 (Fla.3d DCA 1978).


text:
    ROBERTS ELECTRONICS, INC., Appellant, v. Jaime ROISMAN, Appellee.
    No. 80-1591.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    Neil J. Berman, Miami, for appellant.
    Mandina & Lipsky and Philip J. Mandina, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Ellison v. Anderson, 74 So.2d 680 (Fla.1954); Kramer v. Landau, 113 So.2d 756 (Fla.3d DCA 1959).


text:
    The STATE of Florida, Appellant, v. Terence McGOEY, Appellee.
    No. 80-1922.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellant.
    James P. Ryan, North Miami, for appel-lee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

We reverse the trial court’s order granting McGoey’s motion to suppress “any and all physical evidence seized by the Police from the Defendant’s alleged personal possession and/or property, custody and control,” upon a holding that (1) where Henderson, a Hialeah Police Officer acting undercover in an investigation that commenced in Hialeah and ended with his purchase of narcotics from McGoey and others outside of the city limits, instructed back-up Hialeah Police Officers to formally effect the arrest of McGoey, the arrest of McGoey and the search of him incident thereto were lawful, State v. Pinoamador, 389 So.2d 317 (Fla. 3d DCA 1980); McAnnis v. State, 386 So.2d 1230 (Fla. 3d DCA 1980); State v. Shipman, 370 So.2d 1195 (Fla. 4th DCA 1979); (2) the seizure of narcotics from other areas of the residence in which the undercover purchase had, moments before, been made was not unlawful because war-rantless, State v. Perry, 398 So.2d 959 (Fla. 4th DCA 1981), and, in any event, did not violate any reasonable expectation of privacy of McGoey, who, at most, was shown by this record to simply be legitimately on the premises, Inchaustegui v. State, 392 So.2d 319 (Fla. 4th DCA 1980); Norman v. State, 388 So.2d 613 (Fla. 3d DCA 1980); and (3) the result is unaffected by the inconsequential fact that subsequent to the arrest and immediate and productive search of McGoey and the premises, the defendant was transferred to the Hialeah Police Department, fingerprinted, photographed and booked there, and kept in the custody of the Hialeah Police for eight hours prior to being transferred to the Dade County Jail, all of which, even assuming, arguendo, its illegality, produced no evidence which the State seeks to use against the defendant.

Reversed and remanded.

      . As is persistently the case, we are left to surmise exactly what was suppressed by the trial court. The catch-all motion of the defendant was simply granted by the trial court. Needless to say, there are marked differences between the legal theory, which, for example, applies to a search of the person incident to an arrest and that which applies to a search of the premises incident to an arrest. Apparently, these differences are of little concern to defendants who file omnibus motions and trial courts which grant them. They are, however, of concern to us.

      . This search apparently revealed $2,800 in currency paid by Henderson for narcotics.


author: DAUKSCH, Chief Judge.

text:
    Robert Blaine LEFTWICH, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-682, 80-683.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a split sentence. Because Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. 1981) has outlawed split sentences where the incarceration is for one year or more we reverse the sentence and remand this matter to the trial court for resentencing.

REVERSED AND REMANDED.

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


text:
    Frank Charles KOONS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1152.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence pursuant to appellant’s plea of guilty. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On January 15, 1981, this court gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. Any question of the voluntariness of a plea should be presented to the lower court by a rule 3.850 motion. The motion of the Public Defender to withdraw is granted and the appeal is hereby DISMISSED.

DAUKSCH, C.J., and COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

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


author: PER CURIAM

text:
    Paul Allen GRISHABER, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 80-498.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    R. W. Simmerman of R. W. Simmerman, P. A., Orlando, for appellant.
    James O. Driscoll of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appel-lee.
   PER CURIAM

AFFIRMED.

See Reid v. State Farm Fire and Casualty Company, 352 So.2d 1172 (Fla.1977); Newman v. National Indemnity Company, 245 So.2d 118 (Fla. 3d DCA 1971).

DAUKSCH, C. J., and ORFINGER and SHARP, JJ., concur.


text:
    Rudolph Milton RICHETTES, Appellant, v. STATE of Florida, Appellee.
    No. 80-1347.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
   PER CURIAM.

Under the authority of Robinson v. State, 373 So.2d 898 (Fla.1979), this appeal is dismissed.

DISMISSED.

DAUKSCH, C. J., and COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: COBB, Judge.

text:
    Daniel Steven SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 80-1211.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

Appellant Smith was convicted of aggravated battery in violation of section 784.045, Florida Statutes (1979). The trial court sentenced Smith to the custody of the Department of Corrections for fifteen years with five years of that custody to be imprisonment, followed by ten years of that custody to be probation. It is this sentence that Smith is appealing.

In the recent case of Villery v. Florida Parole and Probation Comm’n., 396 So.2d 1107 (Fla.1981), the Florida Supreme Court stated that a sentence of incarceration for one year or more that is imposed as part of a split sentence pursuant to section 948.-01(4), Florida Statutes (1979) is invalid.

Accordingly, the sentence is reversed and we remand this case to the trial court with directions to impose a new sentence that is in conformity with Villery.

REMANDED with instructions.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


text:
    Graham C. OWEN, Personal Representative of the Estate of Emily Miller, Deceased, Appellant/Cross-Appellee, v. Helen Ott WILSON, Pauline W. Tate, Flint Wilson, Jr., as the heirs of F. S. Wilson, Deceased, Appellees/Cross-Appellants.
    No. 80-1154.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.

      Thomas D. Sawaya, Ocala, for appellant/cross-appellee.
    Young J. Simmons of Green, Simmons, Green, Hightower & Gray, P. A., Ocala, for appellees/cross-appellants.
   DAUKSCH, Chief Judge.

This is an appeal of an Order Determining Heirs, Approving Accounting and Directing Distribution. The main issue is whether Florida’s nonademption statute, section 732.606, Florida Statutes (1979), applies to a devise by a ward of a voluntary guardianship. Sec. 744.341, Fla.Stat. (1979).

However, before addressing this issue we must note that the trial court was without jurisdiction to enter an amended final order after the issue had been appealed to this court. The trial court rendered its final order on August 29, 1980. Appellant Owen then filed an objection and motion to amend this final order on September 8, 1980, contending that it did not conform with the evidence. Before the trial court considered this objection, appellant Owen filed a timely notice of appeal on September 29, 1980, appealing the August 29th final order. Once appellant filed his notice of appeal, the trial court was without jurisdiction to reconsider “the subject matter of the appeal until the appeal is determined or unless authorized by the appellate court.” General Portland Land Development v. Stevens, 356 So.2d 840, 842 (Fla. 4th DCA 1978). See also Strauser v. Strauser, 303 So.2d 663 (Fla. 4th DCA 1974); Hutchinson v. Wintrode, 286 So.2d 231 (Fla. 2d DCA 1973). Therefore the order on appeal before this court is that final order entered on August 29, 1980.

In 1974, Jean Simpson, who was 87 years old and had recently suffered a broken hip, voluntarily petitioned to have the court appoint Sun Bank of Ocala as guardian of her property. An order was entered by the court appointing Sun Bank as guardian because of Simpson’s infirmity. Simpson then executed a will in 1975 specifically devising her house to Emily Miller. In 1978, Sun Bank, as guardian for Simpson, petitioned for court approval of the sale of this house to provide money for her care and maintenance even though there existed over $30,-000.00 in Simpson’s savings account. The court approved the sale of this house, the house was sold and the proceeds were for the most part invested in two bonds. Simpson died in 1979 with an estate valued at approximately $79,907.00. Her estate included the two bonds which had been purchased with proceeds from the sale of her house as these moneys had not been needed for her care or maintenance. Simpson had never been declared mentally incompetent.

The initial Petition to Approve Accounting and Direct Distribution requested the court to distribute to Emily Miller the proceeds from the sale of Simpson’s house because of the provisions of the nonademption statute, section 732.606, Florida Statutes (1979). After due objections and amendments, the trial court concluded that section 732.606(1), did not apply because Simpson had never been declared mentally incompetent; Florida case law had adopted the “intention theory” of ademption; and there was an ademption because Simpson had intended to sell her house and adeem this devise.

The trial court erred in finding that prior case law determined the applicability of section 732.606. The legislative enactment of new probate provisions in Chapter 74-106, Laws of Florida, evinces an intent to provide a new scheme as set forth in Chapters 731-735, Florida Statutes. Since section 732.606 was adopted as modified from the Uniform Probate Code, we find that the Legislature wanted Florida’s law to be similar to the laws of our sister states adopting this provision rather than prior Florida case law. To give effect to section 732.606, any unpaid proceeds of specific devises are to be paid to the devisee regardless of intent; when “specifically devised property is sold by a guardian of the property for the care and maintenance of the ward, . .. the specific devisee has the right to a general pecuniary devise equal to the net sale price....” Sec. 732.606(1), Fla.Stat. (1979).

The Florida Probate Code does not define “guardian.” Chapter 744, Florida Statutes, provides for guardians of persons mentally or physically incompetent and voluntary guardianships. Although these statutes clearly delineate two different types of guardianship, each uses the term “guardian.” We conclude that absent any intention to only apply to guardians of incompetent persons, section 732.606(1) applies to both guardians of incompetent persons and guardians of persons under voluntary guardianships.

We therefore reverse the final order of August 29, 1980, and remand to the trial court for entry of a proper order distributing to Emily Miller the proceeds from the sale of Simpson’s house.

REVERSED AND REMANDED.

ORFINGER and SHARP, JJ., concur.

      . Emily Miller, deceased, was living at the time of Simpson’s death.

        .Eisenschenk v. Fowler, 82 So.2d 876 (Fla. 1965), and Forbes v. Burket, 181 So.2d 682 (Fla. 2d DCA 1966), after remand, 208 So.2d 670 (Fla. 2d DCA 1968).

      . § 744.331, Fla.Stat.

      . § 744.341, Fla.Stat.


text:
    Virgil V. WISE, Appellant, v. T. J. TUCKER, Appellee.
    No. 78-753.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.

      Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellant.
    William H. Pruitt of Pruitt & Gay, West Palm Beach, for appellee.
   PER CURIAM.

Virgil V. Wise seeks review of a final judgment entered against him following jury trial of a contract action. The events leading up to this judgment are as follows:

In 1972, Wise conveyed two parcels of real property to appellee, T. J. Tucker, by two separate deeds, taking back a mortgage on each parcel as part consideration. On April 22, 1975, Wise instituted foreclosure proceedings as to one parcel, alleging that Tucker had defaulted on the mortgage. On November 12, 1975, during the pendency of the foreclosure suit, Wise and Tucker executed a written agreement, prepared by Tucker’s attorney, which provided, in part:

4. Upon consideration of T. J. Tucker obtaining a $25,009.00 loan through the Small Business Administration, Virgil V. Wise agrees to reinstate the mortgage.
5. If said loan is obtained Virgil V. Wise agrees to permit T. J. Tucker to make all of the payments now in arrears on the mortgage of the East 100' of Lot 8, Block I, replat of Loxahatchee District, Subdivision, Loxahatchee Groves, Book 12, page 29, and further, that T. J. Tucker agrees to pay one (1) year mortgage in advance, if said loan is obtained.
6. If the SBA loan is disapproved for any reason, Virgil V. Wise agrees to give right of redemption to T. J. Tucker by allowing him nine (9) months to make payments on the ar-rearage of said mortgage on East 100' of lot 8, Block I.

However, neither Tucker nor Wise informed the court of this agreement and, therefore, the court had no knowledge of the nine-month extension provision. This being the case, it entered a final judgment of foreclosure on February 11,1976, finding that Wise was entitled to judgment as a matter of law.

The property was noticed for public sale and sold to Wise on March 8, 1976. At this point, Tucker hired another attorney who unsuccessfully moved to set aside the final judgment of foreclosure and to cancel the certificate of title on fraudulent procurement grounds, citing the extension provision of the November 12th agreement as a basis. No appeal was taken in this foreclosure action.

On October 21, 1976, Tucker filed the complaint in the instant action seeking specific performance and damages for breach of the aforementioned agreement in that Wise failed to honor the nine-month extension to satisfy the arrearage. In response, Wise filed a motion to dismiss the action as being a collateral attack on the judgment of foreclosure. Following denial of this motion, Wise filed an answer designating res judicata and collateral estoppel as affirmative defenses. While the court found that Tucker was not entitled to specific performance and dismissed that count of the complaint, the damages count proceeded to trial and resulted in a jury verdict in Tucker’s favor. Final judgment was entered thereon and this appeal ensued.

Under the doctrine of res judicata, a final judgment or decree on the merits, by a court of competent jurisdiction, constitutes an absolute bar to a subsequent suit on the same cause of action, and concludes all issues which were raised or could have been raised in the action. Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979); Golden View Condominium, Inc. v. City of Hallandale, 279 So.2d 323 (Fla. 4th DCA), cert. denied, 288 So.2d 258 (Fla.1973). As to defenses, however, there is authority that identity of the causes of action is not required:

[Djespite the general rule that an adjudication in an action involving a different cause of action does not preclude matters which were not actually litigated, the doctrine of res judicata has been declared to be applicable to defenses which were not, but could have been, raised and determined in a prior action, so that a defendant who fails to set up an available defense in a prior action is concluded as to its existence by the prior adjudication, even though the subsequent action involves a different cause of action.

19 Fla.Jur. Judgments and Decrees § 127 (footnotes omitted). This exception for defenses was also noted in 46 Am.Jur.2d Judgments § 431:

There are many cases in which the doctrine of res judicata is held or declared to be applicable to defenses which were not raised, but which could properly have been considered and determined, in the prior action, so that if the defendant neglects to set up the defense he is concluded as to the existence thereof by the judgment rendered in the action. This rule has been held or declared to be applicable even though the subsequent action involves a different cause of action, notwithstanding the general rule that a judgment rendered in an action involving a cause of action different from that involved in a subsequent action is not conclusive as to matters not litigated in the former action.

(Footnotes omitted.)

See also, Florida Real Estate Comm’n v. Harris, 134 So.2d 785 (Fla.1961), appeal dismissed, 371 U.S. 7, 83 S.Ct. 19, 9 L.Ed.2d 47 (1962).

Thus, a defendant who fails to raise an available defense will be precluded from arguing its existence in a subsequent action, even where the later action involves a different cause of action. Applying these principles, we find that since Tucker failed to raise the November agreement as a defense in the foreclosure action, he is now estopped from using it as a basis for this contract action.

The same result is reached in this case by applying the doctrine of estoppel by judgment. Though similar to res judicata, this doctrine applies where two suits involve different causes of action, but it only precludes relitigation of those issues which were actually litigated and determined in the prior action. Gordon v. Gordon, 59 So.2d 40 (Fla.), cert. denied, 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680 (1952); City of Bartow v. Public Employees Relations Comm’n, 382 So.2d 311 (Fla. 2d DCA 1979); Burleigh House Condominium, Inc. v. Buchwald, 368 So.2d 1316 (Fla. 3d DCA), cert. denied, 379 So.2d 203 (FIa.1979); Seaboard Coast Line Railroad Co. v. Industrial Contracting Co., 260 So.2d 860 (Fla. 4th DCA 1972). Thus, where two suits are based on a common question, estoppel by judgment will prevent a defendant from maintaining the later one. Masciarelli v. Maco Supply Corp., 224 So.2d 329 (Fla.1969); Avant v. Hammond Jones, Inc., 79 So.2d 423 (Fla.1955); Coplan Pipe & Supply Co. v. Central Bank & Trust Co., 362 So.2d 447 (Fla. 3d DCA 1978). Since this contract action, like the prior foreclosure suit, is ultimately concerned with whether Tucker defaulted on the mortgage, estoppel by judgment precludes relitigation through maintenance of this contract action. Tuz v. Edward M. Chadbourne, Inc., 310 So.2d 8 (Fla.1975).

Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings consistent herewith.

DOWNEY, GLICKSTEIN, and HURLEY, JJ., concur.


author: PER CURIAM. HURLEY, Judge,

text:
    STATE of Florida, Appellant, v. Anthony KITCHENS, Appellee.
    No. 79-2210.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    David H. Bludworth, State Atty., and Deborah Dale Pucillo, Asst. State Atty., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).

LETTS, C. J., and ANSTEAD, J., concur.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

concurring specially.

I concur only in the judgment of the court since I believe the case can be decided on a narrower ground than the McNabb-Mallory Rule.

In Romanello v. State, 160 So.2d 529 (Fla. 1st DCA), cert. denied, 168 So.2d 148 (Fla.1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1541, 14 L.Ed.2d 436 (1965), the court declined to adopt a per se exclusionary rule for failure to comply with the then-existing statutory requirement that an accused be taken before a magistrate “without unnecessary delay.” The court reasoned:

It is the rule, however, that due process of law is not violated in such instances unless it is shown that the delay in itself resulted in the confession under attack, and it will not be presumed that such was the case. Id. at 532-33.

Similarly, in Headrick v. State, 366 So.2d 1190, 1191 (Fla. 1st DCA 1978), the court held:

Each case must be examined upon its own facts to determine whether a violation of Rule 3.130(b), considering its purpose and effect, has induced an otherwise voluntary confession.

The counterpart to Rule 3.130(b), Fla.R. Crim.P., mentioned above, is Rule 8.050(b), Fla.R.Juv.P., which delimits the time requirements for conducting a juvenile detention hearing. It specifies that:

The detention hearing shall be within twenty-four (24) hours after the child is taken into custody excluding Sundays and legal holidays.

The facts in the case at bar demonstrate a complete disregard of the foregoing rule. The juvenile defendant was arrested at 9:00 P.M. on Thursday, May 10, 1979, but was not taken to a detention hearing until Monday, May 14, 1979, at 1:30 P.M. — 88 and lh hours after arrest. We take judicial notice of the fact that first appearance and detention hearings are conducted on a daily basis in Palm Beach County and, consequently, the defendant could have been brought before a magistrate on either Friday or Saturday.

Furthermore, the facts reveal that on Friday, May 11th, when the defendant was apprised by his probation counselor of his right to counsel, defendant immediately indicated his desire to be represented by an attorney. Thus, I have no difficulty in concluding that the delay in bringing the defendant to a detention hearing directly deprived him of his right to counsel and in turn, resulted in the confession under attack. Accordingly, I concur in affirming the trial court’s order of suppression.

      . McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).


text:
    Alfred L. HARDIMAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-2464.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court together with the sentence imposed except the assessment costs and victim costs, the imposition of which we herewith vacate because of appellant’s insolvency.

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


text:
    STONEWALL INSURANCE COMPANY, Appellant, v. Edward HETER, et al, Appellees.
    No. 79-2496.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    Clark J. Cochran, Jr., of Hainline & Billing, P. A., and Nancy Little Hoffmann, Fort Lauderdale, for appellant.
    Richard A. Barnett and Jon E. Krupnick of Krupnick & Campbell, P. A., Fort Laud-erdale, for appellee, Edward Heter.
   PER CURIAM.

This is an appeal from a summary judgment on an uninsured motorist coverage question. We conclude that this is not a final judgment subject to appeal at this time. Further issues remain for determination before the trial court relating to the excess or primary nature of the uninsured motorist coverage in question and the existence of or requirements relating to underlying liability or uninsured motorist coverage. The record indicates the parties are still litigating the issues relating to underlying insurance. We, therefore, dismiss this appeal without prejudice to the rights of any party to raise the same issues after final judgment is entered.

MOORE and BERANEK, JJ., and KAP-NER, LEWIS, Associate Judge, concur.


author: GLICKSTEIN, Judge. MOORE, Judge,

text:
    Jerry Lee POTTS, Appellant, v. STATE of Florida, Appellee.
    No. 79-2534.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.

      Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant was charged by information with delivery of cannabis and possession of cocaine. He was found guilty by a jury as charged and was sentenced to three years’ imprisonment on each count, to run concurrently.

Appellant contends that he is entitled to a new trial because of the discovery violations by the state listed below:

1. Failure to disclose oral statements made by appellant.

2. Failure to produce oral statements of the undercover arresting officer.

3. Failure to disclose the search of appellant’s person and seizure of cocaine thereby.

Inasmuch as the trial court did not conduct an inquiry with respect to the first and third violations as required by Richardson v. State, 246 So.2d 771 (Fla.1971), we find harmful error and reverse.

Upon the first point, appellant filed a discovery demand which sought:

(d) The stataement of the accused, if any statement is attributed to the accused together with the names of all persons present when such alleged remark, if any there be, was purportedly made or uttered by the Defendant.
The state’s answer to the foregoing was: (a) Written, recorded and/or oral statements of defendant. YES

Since the word recorded was underlined in a standard, preprinted answer to demand for discovery form, the state appeared to negate the existence of other, unrecorded statements. Immediately prior to trial, however, defense counsel called to the trial court’s attention that there were oral statements made by appellant which the state intended to introduce at trial. Most of these oral statements were described in a sworn offense report prepared by the arresting officers. The statements were conversational in nature and were made on July 11 and 12. Appellant’s arrest occurred on the night of July 12. A copy of the report, containing a description of the conversations between appellant and the undercover arresting officers, was apparently given to defense counsel immediately prior to trial.

The failure to notify timely of these oral statements was a discovery violation. Florida Rule of Criminal Procedure 3.220(a) (1) (iii) specifically obligates the prosecutor to disclose the substance of any oral statements made by the accused, together with the name and address of each witness to the statement. Accordingly, it was incumbent upon the trial court to conduct a hearing and specifically determine whether the state’s violation was willful or inadvertent; whether the violation was trivial or substantial; and whether the violation prejudiced appellant’s ability to prepare properly for trial. Brey v. State, 382 So.2d 395 (Fla. 4th DCA 1980). The trial court made none of the foregoing determinations and simply overruled appellant’s objection. Consequently, the error is harmful. Id.

Appellant next contends the state’s failure to produce, in response to appellant’s demand for discovery, a copy of the abovementioned offense report was a discovery violation. He points out that he specifically demanded the statement of any person having information and that the state’s answer specifically lists Detective Dutko, one of the undercover arresting officers, as having given a statement. The officer’s statements were contained in his sworn offense report. There is no question that appellant was entitled to a copy of that part of the offense report in which the officer was an eye witness to or participant in the events which led to appellant’s arrest. Miller v. State, 360 So.2d 46 (Fla. 2d DCA 1978). Cf. Lockhart v. State, 384 So.2d 289 (Fla. 4th DCA 1980). In its answer the state informed appellant that the statements were available for inspection and copying at the state attorney’s office upon reasonable notice. That offer satisfied Florida Rule of Criminal Procedure 3.220(a)(1), which requires the prosecutor to disclose such statements to defense counsel and to permit him to inspect and copy same. Since the record is devoid of any proof that defense counsel made an effort to inspect and copy the officer’s statements, we do not find a discovery violation on this point.

Appellant’s third and final point is that he was prejudiced by the state’s failure to disclose a search and seizure of cocaine and the trial court’s failure to conduct an inquiry as to same. Appellant demanded

(j) A complete disclosure of whether there has been any search or seizure together with a complete disclosure of documents relating thereto.

The state’s answer was:

(h) Search or seizure, and documents relating thereto: NONE

At the trial, Detective Dutko answered affirmatively when asked if appellant was searched at the time of his arrest. Defense counsel then asked that the jury be excused and proceeded to argue that the state had represented in its answer that no search and seizure had occurred. The prosecutor argued that the state was only obligated to disclose searches and seizures made pursu-' ant to search warrants. The trial court apparently concluded no discovery violation existed and no Richardson inquiry was necessary. Florida Rule of Criminal Procedure 3.220(a)(l)(ix) requires the prosecutor to disclose:

(ix) Whether there has been any search or seizure and any documents relating thereto.

The rule means just what is says; namely, any search or seizure. Therefore we find that the state’s failure to disclose constituted a discovery violation requiring the trial court to conduct a Richardson inquiry. The trial court’s failure to make the necessary determinations was harmful error.

Accordingly, we reverse and remand this cause for a new trial to proceed consistent herewith.

REVERSED AND REMANDED.

HERSEY, J., concurs.

MOORE, J., concurs with opinion.

MOORE, Judge,

concurring specially:

I concur in the result here only because of Richardson v. State, 246 So.2d 771 (Fla.1971) and its progeny. However, it seems ludicrous to me to promulgate a rule which makes a discovery violation prejudical error, per se, in the absence of a Richardson inquiry. This is no more apparent than here where the violation concerns failure to disclose an oral statement made by the appellant and a search of the appellant’s person. If appellant and his counsel were conversing with each other, I would assume counsel knew about these matters. Thus, the error, if any, would be harmless.

      . Appellant in his brief also argued that the failure to disclose evidence receipts was a discovery violation. However, at oral argument he conceded that such a violation would not constitute reversible error.


author: GLICKSTEIN, Judge.

text:
    Craig ELLIOTT, a minor, Appellant, v. CITY OF HOLLYWOOD, Appellee.
    No. 80-35.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.

      Robert L. Gossett of Brooks, Bunin & Gossett, P.A., Hollywood, for appellant.
    Alan L. Landsberg, Miami, and Larry Klein, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from an amended order dismissing with prejudice appellant’s amended complaint against the City of Hollywood. We affirm.

The amended complaint alleged that appellant was a passenger on a motorcycle when it collided with another vehicle at an intersection in Hollywood, causing injury to appellant. The allegations in Count VII directed to the City of Hollywood were that on the day of the accident it had in effect an ordinance which was designed to prevent a homeowner from growing bushes and hedges in such a manner as to interfere with the vision of motorists; that as a result of the City’s failure to enforce the ordinance, bushes and hedges were allowed to grow over the prescribed height on the property located at the subject corner; and that the resulting obstruction to the motorists’ vision caused the accident involving appellant.

The City moved to dismiss the amended complaint on the ground “that the acts complained of are criminal acts by independent parties and there can be no cause of action against the City of Hollywood for failure to enforce an Ordinance.”

The trial court dismissed the amended complaint, saying:

The City of Hollywood has moved to Dismiss Plaintiff’s [Amended] Complaint charging the City with negligence in the failure of the City to enforce a shrub-height municipal ordinance. The [Amended] Complaint alleges that a proximate cause of an intersection accident was the inability of the Plaintiff to see the roadway because of a 12 foot high shrub of Co-Defendant, private property owner, in violation of a municipal ordinance limiting shrub height on private property at roadway intersections to 3 feet. The Plaintiff argues that the Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979) decision allows such suit against a city on the basis that once an ordinance is enacted the enforcement of such ordinance is merely ministerial. The Defendant maintains that enforcement of ordinances is discretionary. Does the mere enactment of a municipal ordinance make the enforcement of that ordinance a ministerial function of government? For example, if a speeder caused an accident, is the city liable for failure to enforce its speed limits? An affirmative response would impose an unrealistic duty upon the city to discover all municipal violations and enforce all municipal ordinances with equal fervor. Such a task would have the effect of limiting the enactment of municipal ordinances for fear that the more ordinances enacted the greater the duty of the municipality to enforce them. This Court cannot extend the Commercial Carrier Corp. decision to impose even greater liabilities upon governmental agencies than those already extended.

Following an unsuccessful petition for rehearing appellant filed a motion for clarification and/or final judgment, which sought an order either granting appellant the right to another amendment to the complaint or dismissing the action with prejudice. Thereafter he filed an amended motion seeking an order which applied the “four point test” of Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), or which could serve as a final judgment. The trial court entered an amended order, restating verbatim its original order which had granted the City’s motion to dismiss the amended complaint and also dismissing appellant’s amended complaint with prejudice.

Although appellant filed an Amended Count VII after entry of the trial court’s original order and argued in his reply brief as though the amended count was considered by the trial court, there is nothing in the record to show such consideration. Accordingly, we must look to the first amended complaint and determine whether it states a cause of action.

We hold that the City’s alleged failure to enforce its ordinance was a planning decision as opposed to an operational one, see Commercial Carrier Corp. v. Indian River County, supra, and believe that Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3d DCA 1980) supports our reasoning. In Jenkins, a young girl was injured at night in a municipal park by a piece of copper coil which a boy had pulled free from a park water fountain and thrown at her. The' trial court granted summary final judgment against the plaintiff in the ensuing action brought against the City. Our sister court affirmed. As to plaintiff’s contention that the City’s failure to supervise the park at night despite its knowledge that it was frequented by minors was the proximate cause of the injury, the appellate court held:

Under the four-part inquiry laid down in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), commended to our use in Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), it is apparent that the City’s decision to provide no supervision in Stillwater Park at night is a planning or discretionary governmental decision for which the City cannot be held liable in tort. (Footnote omitted.)

Id. at 1195-1196.

Applying the four-part test sub judice, we must inquire: (1) Does the decision not to enforce the ordinance involve a basic governmental policy? (2) Is the decision essential to accomplish that policy? (3) Does the decision require the exercise of basic policy evaluation, judgment and expertise? (4) Does the City have the lawful authority to make the decision? Municipalities have limited financial resources and must plan how best to allocate them. As long as their decisions are legally permissible, it is not for the courts to second guess them. Consequently, as the Third District held in Jenkins, supra, at 1196 n.l, we must answer all four questions in the affirmative and classify the decision as a planning one, regardless of its wisdom.

Accordingly, we affirm.

AFFIRMED.

MOORE and BERANEK, JJ., concur.


text:
    Lola Marie GALANIS, Appellant, v. STATE of Florida, Appellee.
    No. 80-852.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.

      Richard L. Jorandby, Public Defender, and Charles D. Peters, Chief, Appellate Division, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Johnson v. State, 378 So.2d 108 (Fla. 5th DCA 1980).

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Charles L. SWANK and Timothy M. Key, Appellees.
    No. 80-914.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    Rehearing Denied July 8, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and .Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Douglas S. Lambeth, Fort Lauderdale, for appellee Key.
    Richard Bergstresser, Miami, for appellee Swank.
   HERSEY, Judge.

Defendants were charged with possession of cocaine. The trial court granted their motions to suppress the drugs and the State now challenges the suppression of that evidence.

On May 30,1979, at approximately 4:00 a. m., Officers Patterson and Flint responded to a call from the local Hilton Hotel. Upon their arrival, the night clerk explained that occupants of a room, two men and a woman, were making numerous long distance telephone calls and running up a sizeable bill. Although the room had been paid for in advance, the clerk expressed concern that the occupants might “skip” without paying for the calls. The officers where then shown the hotel registration card which indicated a non-existent automobile license number.

After receiving all of this information, the officers proceeded to defendants’ hotel room and knocked on the door, identifying themselves as police officers. They were told to “hold on for a minute.” The officers then heard noises of movement from inside the room, including the sound of a sliding glass door being opened. After a few moments, defendant Swank, clad only in a towel, answered the door, opening it only as far as allowed by the night chain. The officers asked Swank if he was Steven Loukenban, the name under which the room was registered. Swank unlocked the door and explained that he had signed the registration card under a fictitious name. At that point, the officers asked for identification and requested permission to enter the room. Swank invited them in.

Upon entering the room the officers observed that the only other occupant was defendant Key. When questioned about their female companion, both defendants denied her existence. The officers then requested permission to check the balcony which led out from the sliding glass door. They were told to “go ahead.” There they found a duffel bag stuffed between the bars of the balcony railing. Both defendants denied ownership or knowledge of the bag.

Since the bag had no outer identification, the officers looked inside in an attempt to ascertain the rightful owner. Discovered was a quantity of cocaine and several hotel receipts in defendant Key’s name.

Both officers were dressed in standard police uniform, including hats, badges, guns, nightsticks and walkie-talkies. However, their guns were never drawn nor any other weapons displayed. The officers were polite in their requests and felt that the permission to enter the room and check the balcony was freely and voluntarily given.

The trial court determined that, under the circumstances, defendants’ consent was the result of submission to apparent authority. In reaching this decision, the court emphasized that the police officers were “pretty healthy-looking and were in uniform.” The court also considered the time 4:00 a. m., and defendant Swanks’ dress (wrapped in a towel).

We find the circumstances insufficient to infer submission to apparent authority and therefore reverse. In doing this, we do not intend to invade the fact-finding province of the lower court by resolving conflicts in testimony. There was no conflicting testimony on this point as defendants did not testify. Further, the trial court specifically stated that it believed that the officers testified truthfully. Thus, we hold that the facts reveal voluntary consent, not submission to authority.

It has been held that silent compliance to a police request may be nothing more than submission to apparent authority. Ingram v. State, 364 So.2d 821 (Fla.4th DCA 1978).

On the other hand, the presence of uniformed and armed officers does not necessarily vitiate express consent. Presence alone, absent any indication of coercive words or acts, misrepresentation, deception, or trickery, is insufficient to raise an inference of submission to police authority. United States v. Griffin, 530 F.2d 739 (7th Cir. 1976); United States v. Marshall, 452 F.Supp. 1282 (S.D.Fla.1978) rev’d. on other grounds 609 F.2d 152 (5th Cir. 1980). Where police officers have the right to believe that defendants’ express consent to enter a room was knowing and voluntary because they had done nothing to coerce such consent, their presence in the room is legal. State v. Ruiz, 360 So.2d 1320 (Fla.2d DCA 1978).

There are two other Florida cases seemingly on point which we have considered, but here reject because of certain differentiating factors.

In State v. Gansz, 297 So.2d 614 (Fla.4th DCA 1974), the defendant was aroused from sleep late at night and confronted by his probation supervisor and two unknown men. The probation supervisor informed the defendant that he wanted to search the house. Gansz replied, “Sure man, I am going to sleep.” This Court found that Gansz was merely acquiescing to the state’s show of authority. There are two basic and important distinctions between Gansz and the instant case. The first is that the intruding individual in Gansz was the defendant’s probation supervisor. There was thus a previous and continuing relationship between the two parties involved. This was no happenstance confrontation such as developed with Swank and Key. The second difference between Gansz and the instant case is that Gansz was aroused from sleep. By taking advantage of the defendant’s sleep-ridden condition, the probation supervisor in Gansz employed trickery and thus an inference of submission to authority was raised.

In Collins v. State, 143 So.2d 700 (Fla.2d DCA 1962), two West Palm Beach police officers traveled to a motel in Rivera Beach, obtained Collins’ room number, proceeded to that room and knocked on the door. Collins peered through a window, recognized the police officers and called out “wait a minute.” Shortly thereafter, Collins opened the door and invited the police officers into the room. The question presented by this set of facts was whether the police officers, who were outside their jurisdiction and thus without official authority, were acting as private citizens. The trial court concluded that the officers’ actions were those of private citizens and therefore the “plain view” evidence seized from the room was admissible. Disagreeing with this conclusion, the court of appeal observed:

The actions of the police officers, which culminated in the arrest, search and seizure, extended over a period of two days. All of these actions, while in the City of West Palm Beach, were consistent with their duties and under their power and authority as police officers. Their previous interrogations with Collins had been as police officers, and their presence at the door of the motel room, in the uniform signifying their official position as police officers, was a part of their continuing investigation begun as police officers. They were acting under color of their office. We conclude that Collins admitted them to the motel room by virtue of the force and effect of their official position as police officers. He did not admit them as private citizens. An officer gaining access to private living quarters under color of his office and of the law which he personifies must then have some valid basis in law for the intrusion. Id. at 703.

We interpret this to mean that when a police officer’s actions are made under color of his official position, he must in fact have authority to act. With this principle we concur. However, we would disagree with an interpretation of this language requiring an officer to have probable cause before knocking on a door and gaining entrance by consent or holding that the presence of uniformed officers, without more, invalidates consent as a submission to apparent authority. And here, again, as in Gansz, the intruders had previously been in contact with Collins who recognized them when they appeared at the door of his motel room.

In the instant case, there was no previous contact between the law enforcement officers and the defendants. Furthermore, the testimony reflects that defendants were telephoning while the officers were speaking to the night clerk and therefore were not awakened from sleep by the police. Accordingly, neither Collins nor Gansz is controlling authority here.

Consent to the entry of police officers into a constitutionally protected area must, like consent to search, be freely and voluntarily given. See State v. Rardin, 392 So.2d 350 (Fla.4th DCA 1981). The state has the burden of proving such consent by clear and convincing evidence. Jordan v. State, 384 So.2d 277 (Fla.4th DCA 1980). This burden is met by evidence that a defendant expressly invited or agreed to entry or search and the actions of the police were reasonable, non-coercive, and did not involve misrepresentation, deceit or trickery. See State v. Rardin, supra.

In the instant case, the police officers were expressly invited into defendants’ hotel room and expressly given permission to check the balcony area. There was no evidence of coercion, misrepresentation, deceit or trickery. In short, the express consent was freely and voluntarily given. Therefore, the officers’ observation of the duffel bag was not in violation of defendants’ rights.

Since defendants disclaimed ownership or control over the bag, the subsequent search for identification of the rightful owner was reasonable.

Accordingly, we reverse the trial court’s order suppressing the cocaine found in the duffel bag and remand the case for further proceedings.

LETTS, O. J., and DOWNEY, J., concur.


text:
    David S. SALEH, Appellant, v. STATE of Florida, Appellee.
    No. 80-1047.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s judgments of conviction and sentence for robbery with a firearm are affirmed.

Appellant’s judgments of conviction of possession of a firearm while engaged in a criminal offense are reversed and vacated. See, State v. Pinder, 375 So.2d 836 (Fla. 1979); Hillery v. State, 391 So.2d 776 (Fla. 4th DCA 1980).

DOWNEY and MOORE, JJ., and ROSEMARY BARKETT, Associate Judge, concur.