author: HOLMES, Judge.

text:
    Cecil Lee MURPHY v. Margaret Ann MURPHY.
    Civ. 3821.
    Court of Civil Appeals of Alabama.
    Oct. 12, 1983.
    George K. Elbrecht, Monroeville, for appellant.
    David B. Byrne, Jr. and Justice D. Smyth, III of Robison & Belser, Montgomery, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court after an ore tenus hearing divorced the parties, awarded custody of the three minor children to the mother, and ordered the husband to pay child support in the amount of $450 per month for each child. In addition, the trial court required the husband to pay $250 per month to the wife for payment on the amount owed on her automobile. The husband now appeals and we affirm.

The dispositive issue on appeal is whether the trial court abused its discretion in determining the amount of child support and in ordering the husband to pay the indebtedness on the wife’s automobile. We find no error requiring reversal and affirm.

The evidence in the instant case is contained in a three volume record. Much of it concerns financial matters and, to use the words of the husband’s able counsel, the evidence in this case is “convoluted, complicated and often beyond one’s financial imagination.” Be that as it may, a review of the record with the attendant presumptions reveals the following pertinent facts:

The parties were married in 1957. Five children were born of the marriage and at the time of trial three were minors, the youngest eleven and the oldest sixteen years old. The parties separated in 1980 and remained separated until the divorce in 1983 except for one brief attempt at reconciliation.

The parties are well educated; both husband and wife hold doctorate degrees. The wife is employed as the head of the English department at a state junior college in Alabama and has worked there several years. The husband was once employed as president of the same junior college but he resigned sometime before the divorce proceedings, apparently in order to devote more time to various business ventures.

Although both parties were primarily educators, they maintained a very high standard of living, attributable in part to inherited property and the vast generosity of the husband’s parents.

The husband contends that the trial court abused its discretion in the amount of child support awarded and in ordering him to make the wife’s car payments because the husband had suffered severe financial setbacks prior to the divorce proceedings. Pri- or to 1980, the husband bought two marinas in Baldwin County. Due to financial mismanagement and a hurricane, the husband lost large sums of money and property and incurred tremendous debts. At the time of the hearing, the husband was not regularly employed and owned almost negligible assets. It is the husband’s contention that because of his reduced financial condition he is unable to make the child support payments in the amount ordered by the trial court, hence the trial court abused its discretion. We disagree.

An award of child support is within the sound discretion of the trial court and will not be reversed on appeal unless there is plain and palpable abuse of that discretion. Butts v. Butts, 418 So.2d 161 (Ala.Civ.App.1982). Particularly applicable to the present case is the rule of law that ability to earn, as opposed to actual earning, is a proper factor to be considered in the determination of the amount of child support to be awarded. Reach v. Reach, 378 So.2d 1115 (Ala.Civ.App.1979). The record in the instant case contains sufficient evidence that the trial court’s determination of child support is within the husband’s “ability to earn.”

The husband has had the benefit of his parents’ generosity throughout his financial difficulties. The husband’s father testified that his son owed him approximately $600,-000. The husband has transferred a considerable amount of land to his parents and large sums of money were realized from the sale of timber. The husband’s parents have assumed various mortgages and debts on behalf of their son. There is, in fact, every indication that the husband’s parents have given their son “access” to large amounts of money on a regular basis in the past and it appears to be a continuing arrangement.

The husband was unemployed at the time of the trial, although he had applied for a job at one business. The husband testified that he did not want a job in education. The husband and his father entered into a partnership in August 1982, with the husband contributing approximately $23,000 to the business, a pig farm.

The husband also testified that he had earned some $45,000 in rent from July 1982 to the time of the trial, February 1983. In the last couple of years the husband has purchased several expensive gifts and personal goods such as a color television, video cassette recorder, video disc player, diamond rings, and a watch.

Taking the husband’s ability to earn in consideration, coupled with his parents’ continuing financial assistance, this court cannot say that the trial court so abused its discretion as to require reversal. We note that the matter of child support is never res judicata and can be modified if a change in circumstances justifies it. Boswell v. Boswell, 280 Ala. 53, 189 So.2d 854 (1966). We note that although the award of child support is quite generous, considering the unusual circumstances in the present case, to wit, the husband’s ability to earn, the family’s high standard of living, and the generosity of the husband’s parents, the award is not an abuse of the trial court’s discretion. The trial court must make a determination of support at the time of the trial based upon the particular facts of each case. This court will not substitute its judgment for that of the trial court unless it concludes that the trial court’s actions are plainly and palpably wrong. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

The husband also contends that the “primary care doctrine” is unconstitutional. This argument was not properly raised at the trial level and, therefore, is not before this court. In any event, there is no indication that the trial court relied on this doctrine in determining support. See Hamilton v. Hamilton, 428 So.2d 65 (Ala.Civ.App.1983). Either parent may be ordered to contribute support to their minor children, and a showing of lack of supportive ability on the part of the custodial parent is not required. Jenkins v. Jenkins, 418 So.2d 137 (Ala.Civ.App.1982).

Additionally, in view of the husband’s ability to earn, the trial court did not err in determining child support and in ordering the husband to pay the wife’s automobile payments.

This case is due to be affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J., concur.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Jerry ROSE v. Sylvia P. ROSE.
    Civ. 3830.
    Court of Civil Appeals of Alabama.
    Oct. 12, 1983.
    A.J. Seale of Seale, Marsal & Seale, Mobile, for appellant.
    W.A. Kimbrough, Jr. of Turner, Onder-donk & Kimbrough, P.A., Mobile, for appel-lee.
   WRIGHT, Presiding Judge.

The parties were divorced in 1980. In 1982 the wife brought a petition to enforce the judgment of divorce alleging failure of the husband to comply with its provisions.

Hearing of the petition and answer was held orally by the court. The record of the hearing is produced here under Rule 10(d), A.R.A.P.

The court entered judgment finding the husband in violation of the divorce judgment. He was ordered to pay to the wife the sum of $4,500 in delinquent alimony. The divorce decree was modified by requiring the payment of alimony in the monthly sum of $300. The husband appeals.

The record before us, though extremely brief, indicates substantial conflict in the evidence as to the income of the husband during 1982 and as to his prospective income in the future. The resolution of the conflict is upon the judge after oral hearing. Best v. State Department of Revenue, 423 So.2d 859 (Ala.Civ.App.1982). His resolution is presumed correct upon appeal. Morrow v. Wood, 411 So.2d 120 (Ala.1982). This court, upon review of the findings of the judge, merely determines if there is support for them in the evidence. If such findings are supported by legal evidence and are not unjust, we must affirm. Giles v. Giles, 384 So.2d 125 (Ala.Civ.App.1980).

We have reviewed the available evidence with its attending reasonable inferences. We find support for the findings of the trial judge. It would serve no prece-dential purpose to extend this opinion to include a recitation of the evidence. Therefore we deem it sufficient to affirm the judgment of the court below.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Carmaleta KENCHEL v. Thomas KENCHEL.
    Civ. 3868.
    Court of Civil Appeals of Alabama.
    Oct. 12, 1983.

      David H. Meginniss of Hornsby, Blankenship, Robinson & Meginniss, Huntsville, for appellant.
    M.H. Lanier and H. Harold Stephens of Lanier, Shaver & Herring, Huntsville, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court after an ore terns hearing divorced the parties, made an award of alimony in gross to the wife, and required the husband to pay child support. The parties agreed upon a division of property.

The wife appeals, contending in effect that the trial court erred in failing to award periodic alimony. We find error in the trial court’s action and reverse.

Viewing the record with the attendant presumptions accorded the trial court’s action, the following is pertinently revealed:

The parties to this action were married twenty-seven years. There were two children born of the marriage, the oldest twenty-one years old and the youngest fifteen.

At the time of the divorce hearing, the wife was fifty-one years old. The wife has a high school education. She worked full time during the first years of marriage, but subsequently gave up regular employment, working only from time to time at various jobs such as selling “Avon” cosmetics and trading at flea markets. During this time, the wife took care of the house and the children. At the time of the divorce hearing, the wife had been employed for the past year and a half as a “linen buyer” at a department store. Her net weekly pay amounts to $103.46.

The husband works as the advertising manager for Martin Industries and has been employed there approximately twenty years. The husband’s gross pay is $2,915 per month. From that amount the husband takes home $1,280 per month. We note, however, that some $400 of the money deducted from the husband’s monthly check is deducted at the husband’s request to cover, at least in part, the daughter’s college expenses and “emergency funds.” At the time of the hearing the daughter was expected to graduate in less than a year.

The marital home is worth somewhere between $167,000 and $195,000 with a mortgage of approximately $13,000. Shortly before the divorce, the parties purchased a lake front lot worth approximately $40,000. There is a mortgage on the lot for almost that same price. In addition to the two mortgages, the husband testified that he has borrowed approximately $6,000 on his insurance policies and some $2,500 from his father. The husband also borrowed $2,000 from his credit union, that debt being deducted from his pay check at the rate of $200 a month.

With the above before it, the trial court entered a decree providing as follows:

As indicated, the parties agreed to a division of property whereby each acquired certain items of household and personal property. Additionally, the wife received a 1973 Cadillac automobile and the husband got a 1973 Gremlin automobile and a 1968 pickup truck. The trial court ordered the wife to deed all of her interest in the lake lot to the husband with the husband responsible for the mortgage. The court also ordered that the marital house be sold for not less than $167,000 and the proceeds divided equally after the mortgage and certain other expenses were deducted.

The trial court’s decree also required the husband to pay $250 per month as child support for the one minor child.

Additionally, and most pertinently, the husband was required to pay $200 per month as “periodic alimony” beginning in May 1983 and continuing for a period of five years.

We note that the trial court and both parties refer to the award of alimony as being periodic alimony; however, the award is more properly alimony in gross. The specific designation of an alimony award as being in gross is not necessary; the lack of such a label will not defeat a provision which in substance provides for an award of alimony in gross as part of a property settlement. In other words, the substance of the award takes precedence over the form or label. Hartsfield v. Hartsfield, 384 So.2d 1097 (Ala.Civ.App.1980). For alimony to be in gross it must satisfy two requirements, (1) the time of payment and the amount must be certain, (2) the right to alimony must be vested. Ex parte Hager, 293 Ala. 47, 299 So.2d 743 (1974). In the present case, clearly the time and amount of payment are certain and it is apparent to this court that the award is not modifiable and hence “vested.” It is therefore clear to this court that the award qualifies as alimony in gross.

In view of the above, the dispositive issue is whether the trial court erred in failing to award periodic alimony.

It is well known that the award of alimony is within the sound discretion of the trial court and its decision will not be disturbed on appeal absent plain and palpable abuse of that discretion; however, the trial court’s decision is subject to appellate review and revision. Davis v. Davis, 274 Ala. 277, 147 So.2d 828 (1962).

Considering the trial court’s decision on the interrelated matters of child support, alimony, and property division along with the particular facts and circumstances of the case, this court cannot say that the trial court erred in failing to award a specific amount as periodic alimony. In other words, after consideration of all the evidence and all other reasonable inferences drawn therefrom, this court cannot say that the trial court was plainly and palpably wrong. Austin v. Austin, 408 So.2d 138 (Ala.Civ.App.1981); Peterson v. Peterson, 403 So.2d 236 (Ala.Civ.App.1981), writ denied, 403 So.2d 239 (Ala.1981). To do so would be to substitute our judgment for that of the trial court. This the law does not permit. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980). However, we find that the trial court erred in not at least reserving the right to award periodic alimony in the future. We therefore reverse on this ground. Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980).

The wife’s limited earning capacity, her age, the husband’s ability to earn, the length of the marriage, and the property division are such that while the trial court did not err in failing to award periodic alimony, it was error at least not to reserve the right to award periodic alimony. Although the wife could receive, under one view of the evidence, some $70,000 on the sale of the marital home, it is not certain when or if this sum will in fact be realized. Considering the above with the wife’s precarious economic status, to wit, minimum wage earner, of somewhat advanced age, the failure to reserve the right to award periodic alimony is reversible error. See Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980). Needless to say, all other aspects of the learned trial judge’s decree are affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THE ABOVE.

WRIGHT, P.J., and BRADLEY, J., concur.


author: ADKINS, Judge.

text:
    Leo Alexander JONES, Appellant, v. STATE of Florida, Appellee.
    No. 61492.
    Supreme Court of Florida.
    Sept. 15, 1983.
    Rehearing Denied Dec. 5, 1983.

      H. Randolph Fallin, Jacksonville, for appellant.
    Jim Smith, Atty. Gen. and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   ADKINS, Judge.

This is an appeal from a judgment of the Fourth Judicial Circuit, Duval County. The court adjudicated the appellant, Jones, guilty of murder in the first degree and followed the jury recommendation in sentencing him to death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

We have carefully reviewed each of appellant’s stated grounds of appeal as the discussion to follow will show. We have considered the entire record of the proceedings below in order to determine whether the jury’s verdict of guilt was supported by substantial, competent evidence. We have further reviewed the sentencing proceeding to determine whether the sentence of death is appropriate to this case under law. § 921.141(4), Fla.Stat. (1981). We affirm the conviction and the sentence.

The evidence at trial showed that on May 23, 1981, shortly after 1:00 A.M., Officer Thomas J. Szafranski was shot in his squad car at the intersection of 6th Street and Davis Street, Jacksonville, Florida. Officer Wilmouth was first on the scene. While Wilmouth waited for medical assistance to arrive a group of people came out of a nearby bar and approached him. One unidentified member of the group indicated that the shots had come from the two-story apartment building fronting the 6th and Davis Street intersection. Thereafter Wil-mouth proceeded to investigate this building.

Officer Mundy had been informed of the incident by radio and quickly joined Wil-mouth in the investigation. According to Mundy, the reputation of the apartment building in question was well travelled in law enforcement circles. Mundy entered the building fully aware that the vacant lower left apartment was a known “stash house” harboring drug users, vagabonds and other street criminals.

The two officers’ search of the building’s lower level produced nothing. However, Wilmouth informed Mundy that he had heard “shuffling” in the upper left apartment. Thereafter Mundy approached this apartment, knocked on the door, and proceeded to identify himself as a police officer. His repeated knocking, however, went unanswered. When Mundy continued to hear voices coming from within he entered the apartment; there he confronted appellant and appellant’s cousin, Bobby Hammond, charging them both with attempted first-degree murder. During a cursory search of the apartment, assisting officers located several high-powered rifles, resting in plain view, but did not, at that time, disturb them.

Both appellant and Hammond were then transported to the Police Memorial Building. There, after being given repeated Miranda warnings by Officer Eason, appellant signed a statement incriminating himself and exonerating his cousin, Hammond.

At trial the appellant filed two motions to suppress. The first motion was directed toward the written statement given to Detective Eason. The second sought suppression of all items of evidence seized from appellant or from appellant’s residence. The trial court denied both motions after determining that appellant’s confession was freely and voluntarily given, and that the warrantless search was justified under the circumstances.

In his first point on appeal, appellant contends that the warrantless police search violated his fourth and fourteenth amendment protections against unreasonable searches and seizures; and this entry being unconstitutional all evidence seized pursuant to the search should have been suppressed. We do not agree.

The fourth and fourteenth amendments do indeed safeguard against a war-rantless entry into a person’s home for purpose of a routine felony arrest. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). However, where exigent circumstances exist, certain warrant-less entries are permitted. Arango v. State, 411 So.2d 172 (Fla.), cert. denied, 457 U.S. 1140, 102 S.Ct. 2973, 73 L.Ed.2d 1360 (1982); Williams v. State, 403 So.2d 430 (Fla.3d DCA 1981); Pomerantz v. State, 372 So.2d 104 (Fla. 3d DCA 1979), cert. denied and appeal dismissed, 386 So.2d 642 (Fla.1980).

In the case before us, the arresting officers were confronted with a potentially deadly situation. That exigent circumstances existed is without doubt. One man lay mortally wounded from a sniper’s bullet while the sniper himself remained at large in a densely populated residential section. The very nature of such a brutal and random attack required swift and effective police action in order to prevent additional harm to innocent members of society. “The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would endanger their lives or the lives of others.” Warden v. Hayden, 387 U.S. 294, 298-299, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782 (1967). Here the record firmly supports the officers’ belief that the suspect was inside the apartment. The delay, incident to obtaining a warrant to search said apartment, would have exposed both the officers and the other, tenants to serious danger. In light of these factors the warrantless entry into appellant’s apartment was justified. See Dorman v. United States, 435 F.2d 385 (D.C.Cir.1970).

Appellant further argues that the officers’ intrusion into his dwelling violated section 901.19(1), Florida Statutes (1981)— The Knock and Announce Statute. Appellant specifically contends that while the officers did knock, they failed to announce their purpose prior to entry. We do not agree.

Here, strong argument can be made that there was substantial compliance with the statute notwithstanding a failure to announce the officers’ purpose. Moreover, under certain limited exceptions an officer may enter a dwelling to effect an arrest without complying with section 901.19(1). Raffield v. State, 351 So.2d 945 (Fla.1977). This Court, in Benefield v. State, 160 So.2d 706 (Fla.1964), advanced several exceptions to the knock and announce requirements of section 901.19(1), Florida Statutes, stating in pertinent part:

As we interpret the common law authorities in relation to § 901.19(1), Florida Statutes, F.S.A., we conclude that even if probable cause exists for the arrest of a person, our statute is violated by an unannounced intrusion in the form of a breaking and entering any building, including a private home, except (1) where the person within already knows of the officer’s authority and purpose; (2) where the officers • are justified in the belief that the persons within are in imminent peril of bodily harm; (3) if the officer’s peril would have been increased had he demanded entrance and stated the purpose, or (4) where those within made aware of the presence of someone outside are then engaged in activities which justify the officers in the belief that an escape or destruction of evidence is being attempted.

160 So.2d at 710 (emphasis supplied). We find the third Benefield exception to apply in the instant case. As previously determined, the officers were faced with exigent circumstances. The record established that there was strong reason to believe the sniper was present within the apartment and had ready access to firearms. Accordingly, the officers were reasonable in concluding that an announcement of purpose would have increased their peril. See Williams v. State, 403 So.2d 430 (Fla. 3d DCA 1981). Inasmuch as there were exigent circumstances present and full compliance with section 901.19(1), Florida Statutes (1981), would have further endangered the lives of the officers, their failure to comply with the Knock and Announce Statute was justified. The trial court, therefore, correctly denied appellant’s motion to suppress.

Appellant’s second point on appeal challenges the trial judge’s denial of his motion to suppress the following statement:

L.J. I, Leo Jones, have been given my rights and I fully understand them and am making this statement on my own free will. I have given Det. Eason permission to write this statement for me. I, Leo Jones on 23 May 81 took a rifle out of the front room of my apartment and went down the back stairs and walked to the front empty apartment and shot the policeman through the front window of the apartment. I then ran back upstairs and hid the gun or rifle and then the police came. L.J.

Appellant argues that this statement, which he admits to signing, was obtained under coercive circumstances. His position, however, is not supported by the record.

The trial judge specifically found appellant’s statement to be freely and voluntarily given. Such a finding comes before this Court with “the same presumption of correctness which attends jury verdicts and final judgments.” Stone v. State, 378 So.2d 765, 769-70 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980). In the case sub judice this “presumption of correctness” has not been eroded by appellant’s argument.

Contrary to appellant’s contention, the statement was properly admitted at trial notwithstanding appellant’s refusal to sign a written waiver form foregoing his Miranda rights. A refusal to sign a written waiver form is not a conclusive indication that a suspect wished to remain silent. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). Furthermore, the trial judge was quite proper in determining that the appellant had implicitly waived his Miranda rights. Implicit waiver can operate as effective waiver especially where adequate Miranda warnings are given and the suspect indicates an understanding thereof. Jordan v. State, 334 So.2d 589, 592 (Fla.1976). The record firmly establishes that appellant rendered his statement after having been first properly advised of his Miranda rights and having evidenced an understanding thereof. From such conduct we can safely infer appellant’s intent to waive his Miranda protections.

Appellant contends further that his confession was obtained after he was threatened with the possibility of his cousin, Bobby Hammond, being charged with a capital offense. After reviewing the record it is apparent that the officers involved in the interrogation session in no way offered to cease criminal investigation of Hammond in exchange for appellant’s confession. In fact, Officer Eason specifically instructed appellant that it would be “impossible” to guarantee Hammond’s freedom if appellant should talk with police. Eason did, however, state that if Hammond was not involved with the shooting, he would not be charged with the crime. This statement carries no taint of deception. Eason’s interchange with the appellant was proper, truthful, and totally devoid of unlawful coercion. Furthermore, appellant’s assertions that he was physically abused prior to giving his statement cannot be substantiated. The record is in accord with the trial court’s finding that appellant’s statement was freely and voluntarily given. The trial court was proper in admitting said statement at trial.

In his third point on appeal appellant contests the trial court’s admission of non-expert testimony. He specifically contends that Officer. Mundy was not qualified to testify that, in his opinion, the mark on the “stash house” window sill was made by the recoil of a high-powered rifle. This argument is also without merit.

In Peacock v. State, 160 So.2d 541 (Fla. 1st DCA 1964), cert. denied, 168 So.2d 148 (1965), the court of appeal found similar non-expert testimony to be admissible and allowed a deputy to testify as to his visual comparison of a defendant’s automobile tires with casts of tire prints found near the scene of the crime. In so doing, that court stated:

One does not have to be specially trained in order to make a visual comparison of this character. The subject is one upon which an intelligent person with some degree of experience — qualifications possessed by the witness — may and should be permitted to testify, leaving to the jury, as is its exclusive province, the determination of the credence and weight to be given thereto.

160 So.2d at 543. This reasoning can be properly applied to the issue at bar. Officer Mundy possessed a working knowledge of firearms gained through his training as a police officer and through his extensive work as an evidence technician. It was well within his realm of experience to offer the trier of fact his opinion as to this origin of the mark on the “stash house” window sill. In addition we detect no evidence indicating that the admission of Officer Mun-dy’s testimony invaded the province of the jury. The credence and weight to be given to such testimony remained with the jury. Peacock, 160 So.2d at 543; White v. State, 375 So.2d 622 (Fla. 4th DCA 1979). Absent an obvious showing of error, this Court should not tamper with a trial judge’s determination of admissibility. Buchman v. Seaboard Coast Line, 381 So.2d 229, 230 (Fla.1980). After review of the record we find no such reason to disturb the trial court’s decision to admit Officer Mundy’s said testimony.

Appellant’s fourth point on appeal is directed toward another of Officer Mun-dy’s conclusions, offered at trial, as to the origin of a previous unrelated sniper attack. Appellant argues that this testimony raised the spectre of a collateral crime for the purpose of inferring appellant’s bad character or propensity to commit similar crimes and therefore violated the principle enunciated in Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). Appellant’s argument is without merit. From the outset we find that Mundy’s testimony was not offered to show appellant’s bad character or propensity to commit the sniper attack. Rather, the challenged testimony was permitted on redirect subsequent to the following cross-examination of Mundy by defense counsel.

Q. When you got into the ear down to the bus station in response to Officer Roberts telling you that an officer had been shot, at that point in time you had no specific information, did you, sir, that the shot had originated from the building that contained 1557?
A. No, sir, I did not.
Q. Based on your prior experiences you assumed that that would be a good location?
A. Yes, sir, that is correct.
Q. And isn’t it also fair to say that when you drove up to that scene that you were going direct to that bottom apartment?
A. We had discussed it en route to the scene. Once I found out that it happened at Sixth and Davis Street we had discussed it, Officer Roberts and I did.
Q. So you were going directly to that apartment when you arrived at the scene?
A. Yes, that would have been the first apartment that I would have went to.

(Emphasis supplied.) During this portion of the cross-examination appellant’s counsel questioned Officer Mundy’s decision to investigate the “stash house”. As a result, the reasonableness of Mundy’s suspicion was thrust into issue. In order to clarify this impression lingering from cross-examination, Mundy was permitted to testify on redirect, as follows:

By Mr. Austin:
Q. Officer Mundy, on cross-examination by Mr. Fallin you were asked that based on prior experience you assumed that that would be a good location to go to, and the question was asked as you were leaving the bus station, that that would be a good location to go to, and you responded, “Yes;” is that correct?
A. Yes, sir, that is correct.
Q. I believe that you testified when you said that location, you meant the downstairs right-hand apartment that you first searched when you went to the scene?
A. That is correct, sir.
Q. And you said that you assumed it would be a good location. Was that because for any reason other than the fact that you knew it was a stash house?
A. Yes, sir, it is.
Q. What was the other reason?
A. The reason that I also thought about it was that it would be a good place for a shooting, is because at that place there it is completely empty, plus the other houses that are surrounded are occupied by occupants in that house and would be a good location, if you wanted to ambush or shoot someone from that residence.
Q. Did you have any other reasons?
A. Yes, sir, I did.
Q. What was that reason?
A. The reason was, from a prior incident that I did investigate.
Q. What was that and when was it?
A. That was a shooting at a vehicle.
THE COURT: Wait just—
BY MR. AUSTIN:
Q. No, just tell me what you did.
A. I’m sorry, repeat—
Q. What did you do to make you believe that it was a good location?
A. I did triangulation from a car that was involved in an incident.
Q. And what did you determine?
A. I determined that the house and in the lower right-hand side, which is the downstairs empty apartment, was the origin of the shot.
Q. When was that?
A. This was approximately five to seven days earlier.

One of the objectives of redirect examination is to explain, correct, or modify the testimony gathered from cross-examination. See Hughes, Florida Evidence Manual § 167 (1981). Mundy’s testimony, being offered to dispel doubt raised during cross-examination, fell well within the scope of proper cross-examination.

This Court has consistently affirmed “the concept that all relevant evidence having probative value is admissible save to attack character even though it would have a tendency to suggest the commission of a separate crime.” Williams, 110 So.2d 654, 660 (Fla.1959); see also Straight v. State, 397 So.2d 903 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981); Ashley v. State, 265 So.2d 685 (Fla.1972); State v. Norris, 168 So.2d 541 (Fla.1964). During redirect appellant was never expressly linked to the prior sniper attack. Here the probative value of Mundy’s testimony clearly outweighs the possibility of prejudicial impact. Accordingly, the trial judge properly permitted the challenged testimony at trial.

In his fifth point on appeal appellant contends that the trial judge improperly restricted his cross-examination of Bobby Hammond and in so doing deprived him of his right of confrontation as guaranteed by the sixth amendment, United States Constitution. We disagree.

The parameters of a full and fair cross-examination should always encompass subjects opened on direct examination. Coxwell v. State, 361 So.2d 148, 152 (Fla.1978); Coco v. State, 62 So.2d 892 (Fla.1953). However, the scope of such cross-examination is not without bounds. Coxwell, 361 So.2d at 152. On direct examination Bobby Hammond stated that he was present in appellant’s apartment on the night of May 23, 1981, and saw appellant moving toward the back of the apartment, rifle in hand. He further testified that he heard the back door open and some minutes later heard a shot being fired. Thereafter, Hammond reported seeing appellant, carrying a rifle, heading back into his bedroom. Direct examination ceased when Hammond stated he heard the police arrive. On cross-examination appellant attempted to elicit testimony from Hammond concerning statements he had allegedly made to police concerning events that occurred after they were arrested. The trial judge refused to grant such latitude and limited the scope of cross-examination to events and subjects of events occurring in the apartment prior to the arrival of the police. ■

Inasmuch as the subjects of Hammond’s statements to the police were not opened on direct, there was no absolute right for appellant to cross-examine the witness on these matters. Compare, Cox-well; Coco. Furthermore, the trial judge’s imposition of scope restrictions did not unequivocally deny appellant the opportunity to elicit the desired testimony from Hammond. The record shows that appellant specifically objected to Hammond being called as the court’s witness. Moreover, appellant made no attempt to adopt Hammond as his own witness. Both of these alternatives were available to the appellant and both would have provided him with an opportunity to cross-examine without the challenged scope restrictions. See Steinhorst v. State, 412 So.2d 332 (Fla.1982); cf. Coxwell, 361 So.2d 148. We therefore find that the trial judge acted within his broad range of discretion in limiting cross-examination to the subject matter addressed on direct. Maggard v. State, 399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981); Mikenas v. State, 367 So.2d 606 (Fla.1978), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982); Hoy v. State, 353 So.2d 826 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978).

Appellant’s sixth point on appeal challenges the trial judge’s decision to permit mention of appellant’s statement made pri- or to the Szafranski incident. After close review of the record we find no indication that the trial judge acted improperly in receiving said testimony and thereafter denying appellant’s motion for mistrial.

Approximately seven days prior to Szafranski’s murder appellant was arrested for a traffic infraction. Appellant violently resisted this arrest. Officer Ritchey was involved with this arrest and appeared at trial as a state witness. Ritchey was allowed to testify that appellant stated to him that “he was tired of the police hassling him, he had guns, too and intended to kill a pig.” Special care was taken to make no mention of this prior arrest to the jury. Ritchey’s testimony was permitted by the trial judge pursuant to section 90.803(3), Florida Statutes (1979) — Statements of a Person’s State of Mind to Prove Subsequent Acts of the Declarant. The statute, in pertinent part, provides:

(3) THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION.—
(a) A statement of the declarant’s then existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:
1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2. Prove or explain acts of subsequent conduct of the declarant.
(b) However, this subsection does not make admissible:
1. An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant’s will.
2. A statement made under circumstances that indicate its lack of trustworthiness.

(Emphasis supplied.) Appellant contends that the statement should have been excluded because it was “made under circumstances that indicate its lack of trustworthiness.” § 90.803(3)(b)(2), Fla.Stat. (1979). Appellant argues that the statement was elicited under an atmosphere of anger spawned from his arrest and confinement and is therefore unreliable. The trial court, however, found no indication of untrust-worthiness arising from appellant’s location at the time of the statement. After detailed study of the record we agree with the trial court. Appellant’s statement of his intention to kill a police officer contains sufficient probative value to draw the inference that the act was done. It was therefore properly admitted as an exception to the hearsay rule pursuant to section 90.-803(3)(a)(2).

Appellant also attacks his sentence of death and in so doing challenges the trial court’s finding of aggravating factors. After thorough review of the record, the sentencing order, and the presentence investigation report we find no merit to appellant’s conténtion.

In imposing the death penalty the trial judge found three aggravating circumstances applicable:

(1) prior conviction of a felony involving the use or threat of violence to some person. Section 921.141(5)(b);
(2) capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws. Section 921.141(5)(g);
(3) murder was committed in a cold, calculated and premeditated manner without any pretense of any moral or legal justification. Section 921.141(5)(i).

With each factor found, the trial judge made several findings of fact in support thereof. No mitigating circumstances were found.

The trial judge’s findings of the second and third aggravating factors are clearly substantiated by the record. They have been considered and are hereby ap-' proved. Appellant shot and killed Szafran-ski while the officer was travelling from an unrelated investigation, in uniform, and on active duty. This Court has upheld the applicability of section 921.141(5)(g) where, as in the instant case, the victim was killed while performing a legitimate governmental function. See Tafero v. State, 403 So.2d 355 (Fla.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694 (1982). Furthermore, the very nature of the sniper attack manifests appellant’s “cold and calculated” state of mind. The appellant killed without provocation on the part of the victim and without notice. The record is devoid of any evidence tending to justify the slaying. Accordingly the trial judge properly found this aggravating factor pursuant to section 921.141(5)(g).

Appellant’s attack on the trial judge’s finding of the first statutory aggravating factor deserves further comment. One of the statutory aggravating circumstances that a trial judge may consider in determining whether or not to impose the death penalty is set out in section 921.141(5)(b), Florida Statutes (1981): “The defendant was previously convicted of another capital felony or of a felony involving the use or the threat of violence to the person.” (Emphasis added.) In the case at bar, prior to sentencing, appellant had been convicted under section 784.07, Florida Statutes (1981), for battery of a law enforcement officer, a third-degree felony. This conviction stemmed from an incident where appellant was stopped for a traffic infraction and thereafter violently resisted arrest. We find that the judgment of the conviction expressly disclosed the violent nature of the prior felony and that the trial judge properly considered the conviction as a statutory aggravating factor pursuant to section 921.141(5)(b). Compare, Mann v. State, 420 So.2d 578 (Fla.1982) (defendant’s record did not sufficiently disclose a conviction of violent crime). While appellant’s conviction (battery of a law enforcement officer) alone substantiates a finding of an aggravating factor pursuant to section 921.141(5)(b), the trial judge offered additional factual circumstances in support stating:

V. SUMMARIZATION OF AGGRAVATING CIRCUMSTANCES
A. WHETHER THE DEFENDANT HAS PREVIOUSLY BEEN CONVICTED OF A FELONY INVOLVING THE USE OR THREAT OF VIOLENCE TO SOME PERSON.
FACT:
On September 24, 1981, the Defendant entered a plea of guilty to the crime of Battery on a Law Enforcement Officer as charged in Count Four of Case Number 81-4333-CF, in and for the Fourth Judicial Circuit, Duval County, Florida. Information reveals that when the Defendant was stopped for a traffic infraction police smelled odor of marijuana emanating from Defendant’s automobile. Upon being arrested, Defendant resisted and physically confronted the police and had to be subdued and restrained.
FACT:
On June 7,1965, as a 15-year-old juvenile, the Defendant shot another man with a .22 caliber revolver and on June 18, 1965, was committed to the Florida School for Boys in Marianna, Florida. Even though Defendant was not convicted of a felony because he was a juvenile, such an incident involves the use of violence to an innocent person and is removed from felony classification only because of the Defendant’s age.
FACT:
On May 23, 1981, when the Defendant was arrested in 1557 North Davis Street following the shooting of Officer Sza-franski he engaged in physical, bodily conflict with the police officers and had to be physically subdued and restrained. At that time and now Defendant was trained and skilled in the use of karate.
FACT:
Defendant now stands before this Court as the convicted murderer of Officer Thomas J. Szafranski on May 23, 1981. He shot and killed Officer Szafranski with a .30-30 Winchester Marlin high powered rifle inflicting fatal wounds to the head.
There is an aggravating circumstance under this paragraph. The Defendant has been convicted of a felony of Battery on a Law Enforcement Officer and Murder in the First Degree. As a juvenile he was committed for the unlawful shooting of another innocent person.

The trial judge continued to state that while appellant’s juvenile shooting offense and the resisting arrest charge were not reduced to felonies within the meaning of section 921.141(5)(b), and could not be accepted as such, these circumstances were being offered in support of the statutory aggravating circumstances found.

Appellant, citing Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), contends that the trial judge’s alleged reliance on non-statutory aggravating factors renders his death sentence unconstitutional under the eighth and fourteenth amendments. While this Court is not bound by the Eleventh Circuit’s ruling, we are compelled to address the holding in Proffitt, and, in so doing, to distinguish that decision from the instant case.

In Proffitt, the Eleventh Circuit found that the trial judge had relied on nonstatu-tory aggravating factors in support of the death penalty and had therefore:

transcended the list of aggravating factors set forth in the Florida statute and substituted his own judgment of what circumstances justify capital punishment for that of the Florida Legislature. In so doing, the trial judge not only committed error under the state law, see Brown v. State, 381 So.2d 690, 696 (Fla.1980); Elledge v. State, 346 So.2d 998, 1002 (Fla.1977); he also exceeded the federal constitutional limitations imposed by Fur-man on capital sentencing by increasing the risk that the death penalty would be imposed in an arbitrary and capricious manner.

685 F.2d 1227, 1267. This decision was based, in large part, on four determining factors:

(1) that the trial judge expressly relied upon nonstatutory aggravating factors in support of the death sentence;
(2) that only one out of three statutory aggravating factors found by the trial judge could be constitutionally upheld;
(3) that, by itself, the one valid aggravating factor was not sufficient to mandate the imposition of death; and
(4) that the trial judge never specifically denied the presence of mitigating factors, but rather indicated that such factors in mitigation were “primarily negated” by the aggravating circumstances he found.

It is apparent that the Eleventh Circuit, after being confronted with the aforementioned factors, could not state with reasonable certainty that the one valid aggravating factor sufficiently counterbalanced the indi-cia of mitigating circumstances so to justify the sentence of death. Moreover, the court could not discount the fact that the trial judge blatantly relied upon nonstatutory aggravating factors in the imposition of the death penalty.

The issue before us has little resemblance to that which faced the appellate court in Proffitt. Here, there is no clear indication that the trial judge based his decision to impose the death penalty upon nonstatutory aggravating factors. In fact, .the trial judge expressly asserted in the sentence order that the nonstatutory aggravating circumstances were mentioned merely in addition to the already established statutory aggravating factors. We see no reason in the record to now question this assertion. The trial judge’s references to appellant’s juvenile record and his resisting arrest charge were, in effect, surplusage and had no conclusive bearing on the three specific and independently valid findings of statutory aggravating factors. Moreover, the trial court expressly stated that there were no mitigating circumstances present. Accordingly, there being no circumstances in mitigation to counterbalance the three existing valid aggravating factors, death was the proper sentence. State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

In light of the foregoing, we find that the trial court’s decision was proper. Therefore, the conviction and the sentence imposed by the trial court are affirmed.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, MeDONALD and EHRLICH, JJ., concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Daniel E. SINCLAIR, Respondent.
    No. 61638.
    Supreme Court of Florida.
    Oct. 27, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, Patricia S. Etkin, Bar Counsel, Miami, and Richard B. Liss, Co-Bar Counsel, Fort Lauderdale, for complainant.
    Harry A. Blair, Fort Myers, and Leonard A. Carson of Carson & Linn, Tallahassee, for respondent.
   PER CURIAM.

Upon a complaint by The Florida Bar this Court appointed a referee to conduct a hearing regarding Sinclair’s alleged misconduct. Sinclair tendered a conditional guilty plea for consent judgment, acknowledging his violation of Disciplinary Rule 1— 102(A)(6) of the Code of Professional Responsibility. The referee recommended that Sinclair be found guilty in accordance with his conditional plea and that he be suspended from the practice of law for a period of three (3) months and one (1) day with proof of rehabilitation and that taxation of costs of these proceedings be assessed against respondent.

Neither side contests the referee’s report which we hereby adopt. Respondent is hereby suspended from the practice of law for a period of three (3) months and one (1) day with proof of rehabilitation as required by Rule 11.10 of the Integration Rule of The Florida Bar. Respondent’s suspension shall be effective November 28,1983, thereby giving respondent 30 days to close out his practice and take the necessary steps to protect his clients and respondent shall not accept any new business.

Costs in the amount of $1,662.16 are hereby taxed against respondent.

ADKINS, Acting C.J., and BOYD, OVERTON, MeDONALD and EHRLICH, JJ., concur.

       We feel it unnecessary to publish the full text of the plea. The Court file is open for inspection.


text:
    THE FLORIDA BAR, Complainant, v. Michael C. MEISLER, Respondent.
    No. 64301.
    Supreme Court of Florida.
    Oct. 27, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Richard B. Liss, Bar Counsel, Fort Lauderdale, for complainant.
    Bruce David Green, Fort Lauderdale, for respondent.
   PER CURIAM.

This matter is before the Court on petition for approval of conditional guilty plea for consent judgment and entry of final order of discipline to violations of Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(1), (4), and (6) and Florida Bar Integration Rule, article XI, Rule 11.02(3)(a).

We approve the petition and hereby reprimand respondent, Michael C. Meisler, for these violations. The publication of this order in Southern Reporter and the appearance by respondent before the Board of Governors of The Florida Bar shall serve as respondent’s public reprimand.

Costs in the amount of $708.40 are hereby taxed against the respondent.

It is so ordered.

ADKINS, A.C.J., and BOYD, OVERTON, MCDONALD and SHAW, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Thomas W. KENWORTHY, Respondent.
    No. 64315.
    Supreme Court of Florida.
    Oct. 27, 1983.
    Robert D. Rosenbloom, Bar Counsel, Miami, for complainant.
    Philip Carlton, Jr., Miami, for respondent.
   PER CURIAM.

This matter is before the Court on Conditional Guilty Plea for Consent Judgment to violations of article XI, Rule 11.02(4), et seq., of the Integration Rule of The Florida Bar and the Bylaws pertaining thereto and Disciplinary Rule 5-104(A) of the Code of Professional Responsibility. We approve the Petition and hereby reprimand respondent, Thomas W. Kenworthy, for these violations. The publication of this order in Southern Reporter shall serve as respondent’s public reprimand.

Costs in the amount of $607.00 are hereby taxed against the respondent.

It is so ordered.

ADKINS, A.C.J., and BOYD, OVERTON, McDonald and SHAW, JJ., concur.


author: EHRLICH, Judge.

text:
    Otis James THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 61918.
    Supreme Court of Florida.
    Oct. 27, 1983.

      Carl S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for respondent.
   EHRLICH, Judge.

Petitioner, Otis James Thomas, requests review of the First District Court of Appeals’s decision reported as Thomas v. State, 410 So.2d 635 (Fla. 1st DCA 1982). The district court refused to reverse the trial court’s denial of a motion to sever Count III of the information, possession of a firearm by a convicted felon, from Count I, aggravated assault, and Count II, shooting at an occupied vehicle. We have jurisdiction under article Y, section 3(b)(3), Florida Constitution, on the basis of conflict with the Third District Court’s decision in Vazquez v. State, 405 So.2d 177 (Fla. 3d DCA 1981).

Petitioner raises two issues for our consideration. He first argues that State v. Vazquez, 419 So.2d 1088 (Fla.1982), controls the issue of the severance of Count III from Counts I and II and thus he is entitled to a new trial on Counts I and II. He next contends that under the facts of the instant case, he was unfairly prejudiced by the court’s failure to excise the nature of his previous conviction from the state’s exhibits and thus he is entitled to a new trial on Count III, also.

This Court recently decided State v. Vazquez and we find it dispositive. In Vazquez, we held that allowing the state to introduce evidence of a prior conviction solely because a charge of possession of a firearm by a convicted felon is consolidated with other charges, precluded the defendant from receiving a fair trial as to the charges consolidated with the firearm possession charge.

Respondent’s suggestion that Dedmon v. State, 400 So.2d 1042 (Fla. 1st DCA 1981), disapproved, State v. Vazquez, 419 So.2d 1088 (Fla.1982), and Maycock v. State, 398 So.2d 495 (Fla. 3d DCA 1981), are controlling instead of Vazquez is mistaken. Ded-mon and Maycock are inapposite because a stipulation as to the prior felony conviction was entered into by the defendant in each of those cases whereas in the instant case it was not. Contrary to what Dedmon and Maycock did, Thomas did not waive his right to a severance. Therefore, we quash that part of the district court’s opinion which upholds the convictions for aggravated assault and shooting at an occupied vehicle.

As to the second issue, we note that during trial petitioner had objected to the state’s introduction into evidence of a judgment and sentence and an information, as proof of a prior conviction. Petitioner argued unsuccessfully that the nature of the previous conviction should not be revealed to the jury and should be blocked out. The objection was overruled.

In Vazquez, this Court found that a retrial was not necessary for the firearm possession count because proof of Vazquez’ prior conviction was not unfairly prejudicial to that charge. In that case as in the instant one, proof of the prior conviction was both relevant and admissible. Therefore, the conviction on Count III was proper.

We quash that part of the district court’s decision which upholds the convictions for aggravated assault and shooting at an occupied vehicle and approve that part of the district court’s decision which upholds the conviction for possession of a firearm by a felon. The cause is remanded to the trial court for further proceedings in accordance with this opinion.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDonald and SHAW, JJ., concur.

      . With respect to Count I of the information charging petitioner with aggravated assault, petitioner is entitled to a new trial for the lesser offense of attempted aggravated assault, since the jury found petitioner guilty of the lesser offense of attempted aggravated assault, which operates as an acquittal of the offense charged.


author: DOWNEY, Judge. PER CURIAM.

text:
    In re ESTATE OF Samuel J. MELISI, Deceased.
    No. 82-975.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 1983.
    On Rehearing Dec. 7, 1983.
    Joel M. Weissman of Sales & Weissman, P.A., West Palm Beach, for appellant — Virginia Melisi.
    Sam D. Phillips, Jr., of Sam D. Phillips, Jr., P.A., and James F. Simpson, West Palm Beach, for appellee — Jo Ann Day.
   DOWNEY, Judge.

The critical question involved herein is whether the real property in controversy was homestead and the decedent’s interest therein not subject to devise because he was survived by a minor child.

The stipulated facts reflect that as a result of the marital union between Samuel and Virginia Melisi a child, Michele, was born. In March, 1981, the marriage was dissolved and Virginia was awarded custody of the minor child, alimony, child support and exclusive possession of the jointly owned marital home, located at 182 Cypress Drive, West Palm Beach, Florida, until Virginia remarried or Michele reached majority. Virginia and Michele continued to reside in the marital home, and Samuel supported Michele until June 19, 1981, when Samuel died unmarried and without establishing another homestead. Prior to his death, on April 30,1981, Samuel executed a will in which he devised all of his property to a friend, Jo Ann Day. The will of April 30th was admitted to probate, and Jo Ann Day qualified as personal representative.

In due course, Virginia filed a petition in the probate proceeding in which, among other things, she claimed the Cypress Drive property as'homestead. Although her original petition contended that homestead property passed to both her and Michele, ultimately Virginia claimed the property passed to Michele as the minor child of the decedent.

The trial court granted a summary final judgment against Virginia as next friend of Michele, reasoning that (a) the property was not Samuel’s homestead because he was living elsewhere at the time of his death, and (b) Samuel’s estate could not be deprived of his beneficial interest in the property because the exclusive possession of Virginia and Michele terminated upon Samuel’s death. From that judgment Virginia has perfected this appeal.

Article X, Section 4(c) of the 1968 Florida Constitution provides:

(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

Assuming arguendo that Samuel’s undivided one half interest in the Cypress Drive property was homestead, Article X, Section 4(c), quoted above, prohibits the testamentary disposition of that property in the event of his death if Michele was a minor at that time. Given the foregoing, we must determine if in fact and law the property was homestead.

In order for property to classify as homestead, the property must be the residence of either the owner or the owner’s family and the owner must be the “head of a family.” Nationwide Financial Corp. of Colorado v. Thompson, 400 So.2d 559 (Fla. 1st DCA 1981).

The usual factual situation giving rise to the establishment of a homestead finds the head of family as an owner residing upon the homestead parcel with an entity consisting of himself and at least one other person, living together in a family relationship. E.g., In re Estate of Van Meter, 214 So.2d 639 (Fla. 2d DCA 1968). The homestead character of the property is not abandoned when the owner involuntarily changes his residence, as in a case where an infirmity requires residence in a nursing home or hospital facility. 29 Fla.Jur.2d Homestead § 70. In the case of divorce, an owner may similarly be precluded from residing on the homestead with the family of which he is the head due to an award of exclusive possession to the other spouse. The Title Notes of the Lawyers’ Title Guaranty Fund state:

The homestead has not been abandoned where the husband does not reside on the property at his death but his family has continuously lived on the property up to the time of his death. Burdick v. Burdick, 399 So.2d 410 (Fla. 3d DCA 1981). In order to support a claim of abandonment it must be shown that both the owner and the owner’s family abandoned the property. Nationwide Financial Corp. of Colo. v. Thompson, 400 So.2d 559 (Fla. 1st DCA 1981).

Title Funds Notes, Lawyers’ Title Guaranty Fund, T.N. 16.01.01 (1976 as supplemented).

In Osceola Fertilizer Co. v. Sauls, 98 Fla. 339, 123 So. 780 (1929), the Florida Supreme Court stated:

“Though a man be divorced from his wife, and she entrusted by the decree with the custody of the children and possession of the home, his status as the head of a family is not lost nor his obligations to his children terminated, and his right to a homestead remains.” (quoting Speer & Goodnight v. Sykes, 102 Tex. 451, 119 S.W. 86 (1909).)

Regardless of the foregoing authorities, appellee contends here, as she did in the trial court, that the property in question is not homestead property because Samuel did not reside thereon at the time of his death. Apparently persuaded by that argument, the judgment appealed from bases its conclusion in part thereon. This we hold is error.

One of the purposes of homestead exemption is to benefit the head of a family so that he may not be deprived of the means of supplying the necessities of life to his wife and children and those dependent upon him for support. Osceola Fertilizer, supra. Thus it has been held that even when the head of the family is involuntarily living elsewhere, if he is the head of a family and maintains the family in his home his absence therefrom does not affect the homestead character of the property. Osceola Fertilizer, supra; Nationwide Financial, supra. The facts of the present case present a classical homestead situation in the context of divorced spouses with a minor child. The spouses who owned the marital home by the entireties became tenants in common upon divorce. The final judgment awarded custody to the wife together with alimony and child support and granted exclusive possession of the home to the wife and child until the wife remarried or the child reached majority. Accordingly, if Samuel was the head of the family at the time of his death his undivided one half of the property was homestead and he was prohibited from disposing of it by will during Michele’s minority. Art. X, § 4(c), Fla. Const. (1968).

A second reason relied upon by the trial court for determining the property was not homestead is that the wife’s exclusive possession of the property terminated upon Samuel’s death and his estate was then entitled to Samuel’s beneficial interest therein.

Generally, an award of exclusive possession of property, being in the nature of support, terminates at some point, as when the person providing support dies, the object of the support remarries, or when a child reaches majority. However, the termination of exclusive possession does not affect the homestead status of the property once the owner has died. Upon his death if he is the head of a family and the family resides on the property, the property is homestead and not subject to devise by the owner if he leaves either a spouse or minor child surviving. Art. X, § 4(c), Fla.Const.

Having ruled that the property was not homestead because Samuel did not reside there and the wife’s exclusive possession terminated upon Samuel’s death, the trial court never decided the question of whether in fact Samuel was the head of a family. That is a factual issue. Holden v. Estate of Gardner, 420 So.2d 1082 (Fla.1982). There can be only one head of a family, but since Florida law now places the duty of support on both spouses, there is no presumption of headship in the husband. Holden, 420 So.2d at 1085 n. 4; Cory v. Parks, 386 So.2d 292 (Fla. 2d DCA 1980); see § 61.09, Fla.Stat. (1981). Thus, this case should be remanded to the trial court to make that factual determination. If the trial court finds that Samuel was the head of the family, then Samuel’s undivided one half interest was homestead and could not pass under his last will and testament, dated April 30, 1981. See §§ 732.401 & 732.-4015, Fla.Stat. (1981). On the other hand, if Samuel was not the head of the family, the property was not homestead and its devolution is controlled by the will.

The judgment appealed from is reversed and the case is remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

LETTS and GLICKSTEIN, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Appellant has asked this court to clarify the opinion filed September 21, 1983. We grant the motion and clarify the opinion by directing the circuit court on remand to determine whether Samuel J. Melisi had the status of the head of a family at the time of his death.

DOWNEY, LETTS and GLICKSTEIN, JJ., concur.


text:
    David R. WATSON and Rene G. Diaz, Appellants, v. STATE of Florida, Appellee.
    No. 82-1714.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 1983.
    Rehearing Denied Dec. 7, 1983.
    J. Charles Shores, Jr., P.A., and James W. Knight, Jr., P.A., Fort Lauderdale, for appellants.
    No appearance on behalf of appellee.
   PER CURIAM.

Affirmed on the authority of Michigan v. Long, - U.S. -, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

ANSTEAD, C.J., and HURLEY and DELL, JJ., concur.


text:
    Joan C. YOUNG and Francis L. Leahy, Petitioners, v. TRUSTEES OF PALM BEACH JUNIOR COLLEGE and Edward Eissey, President of Palm Beach Junior College, Respondents.
    No. 83-1764.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 1983.
    Rehearing Denied Dec. 8, 1983.
    Steven A. Been, Asst. General Counsel, FEA/United, Tallahassee, for petitioners.
    James M. Adams, West Palm Beach, for respondent-trustees.

      Jesse S. Hogg of Hogg, Allen, Ryce, Norton & Blue, P.A., Coral Gables, for respondent-Edward Eissey.
   PER CURIAM.

By petition for writ of prohibition petitioners seek to disqualify the Trustees of Palm Beach Junior College from participating in an administrative proceeding instituted by Dr. Edward Eissey, President of Palm Beach Junior College, to suspend two Junior College teachers.

The trustees have filed a response in which for various reasons they contend a writ of prohibition should not issue. We have carefully considered respondents’ contentions and found them to be without merit. In our judgment the writ is authorized upon authority of Villaneuva v. State, 127 Fla. 724, 173 So. 906 (1937).

Accordingly, a writ of prohibition shall issue and the respondent Trustees of Palm Beach Junior College are prohibited from proceeding further in the matter of Eissey v. Young and Leahy, presently pending before said trustees except to take such action as is necessary to have substitute trustees appointed according to law.

DOWNEY, GLICKSTEIN and HURLEY, JJ., concur.


author: ROBERT P. SMITH, Jr., Judge. PER CURIAM.

text:
    George Thomas BROWN, Appellant, v. TALLAHASSEE DEMOCRAT, INC., Appellee.
    No. AN-360.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1983.
    Rehearing Denied Nov. 18, 1983.
    Jon D. Caminez and Paul D. Srygley, Tallahassee, for appellant.
    C. Gary Williams and Michael J. Glazer, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Plaintiff Brown appeals from a circuit court judgment granting the defendant newspaper’s motion to dismiss Brown’s complaint asserting a cause of action for defamation. Considering the subject newspaper publication as a whole, including the text as well as the head-shot photograph of plaintiff Brown that accompanied it, the circuit court held as a matter of law that the publication “cannot provide the basis for a cause of action” by Brown against the newspaper, and so dismissed the complaint without opportunity to amend.

We confine our consideration to the merits of the judgment of dismissal on the ground stated, which is to say we consider only the facial sufficiency of the complaint, annexing the publication complained of. We do not reach other issues implied by the record of evidentiary matter presented to the circuit judge, nor those issues that might be decisive on a motion for summary judgment.

In reviewing the alleged defamatory effect of this publication, we assume that plaintiff was and is a private figure, as that categorical term is known to the law. We assume also that the complaint is amendable to allege that the false implication allegedly published was the result of negligence, that is, that the newspaper published the false implication without reasonable care as to whether the implication was true or false. See Miami Herald Publishing Co. v. Ane, 423 So.2d 376, 389 (Fla. 3d DCA 1983). Plaintiff Brown here claimed no ability to allege greater fault than negligence.

Under the headline, “Prosecution rests case in Madison murder trial,” the defendant Democrat published a story, on page 4D of its December 13, 1979, edition, about a trial then concluding in the circuit court of Madison County, one of several north Florida counties in which the newspaper allegedly was circulated. The defendant in that murder trial was Larry Joe Johnson, accused of killing a Madison service station attendant. The reporter’s account summarized the evidence adduced before the jury and reported that closing arguments and the court’s charge would be delivered to the jury on the morning of publication.

The story was accompanied by a small head-shot photograph of this plaintiff, George Thomas Brown. The caption or cut-line beneath the small photograph, one by one and a half inches, was the single name “Johnson,” that of the accused in fact on trial. Neither the name of George Thomas Brown, nor other information misidentifying this plaintiff, appears in the article, and the text does not refer to the photograph.

By his complaint and by argument here plaintiff Brown urges that the mispublication of his photograph gives the article a defamatory implication, namely, that plaintiff Brown is guilty of or on trial for murder. The complaint alleges that “all persons reading the article assumed that Mr. Brown was guilty or was accused of a brutal murder.”

If that implication is fairly present in the publication, or is debatably so, Ane, 423 So.2d at 389, the complaint is amendable by negligence allegations to state a cause of action, for it sufficiently alleges that the publication damaged plaintiff in his reputation, health and in other respects. Actual malice or some other fault greater than negligence is not required in a private figure’s cause of action against a newspaper. Arguments for those standards are thoroughly treated by Judge Hubbart’s opinion in Ane, and we do not revisit them here. See also Boyles v. Mid-Florida Television Corp., 431 So.2d 627 (Fla. 5th DCA 1983).

It is sound principle that an allegedly defamatory publication must be considered in its entirety rather than with an eye constrained to the objectionable feature alone. As the Fourth District recently held in Byrd v. Hustler Magazine, Inc., 433 So.2d 593, 595 (Fla. 4th DCA 1983), citing several authorities, “When words and pictures are presented together, each is an important element of what, in toto, constitutes the publication. Articles are to be considered with their illustrations; pictures are to be

viewed with their captions; stories are to be read with their headlines.”

The matter in issue is libel per se, for innuendo as a predicate for libel per quod is irrelevant; it is not innuendo or pleaded extrinsic facts that are relied upon by plaintiff to lend defamatory meaning to the publication. Boyles, 431 So.2d at 635. Rather, plaintiffs clear-cut claim is that the publication itself, associating plaintiff’s photograph with a murder trial story, conveys the defamation. The question, then, is whether that juxtaposition may have put ordinary readers in the sense that plaintiff George Thomas Brown, pictured in the article, was guilty of or on trial for murder.

The Democrat chooses to publish for those of ordinary discriminating powers, not exclusively for those who would know that the visage depicted was not that of the person named in the cutline and in the story; not exclusively for those who would regard the cutline caption as advertising the makeup editor’s careless error. The Democrat also chooses to publish for readers whom it and other publishers have made wary of aliases and other suspicious habits of reputed criminals — those readers who despite personally knowing George Thomas Brown might attribute to the Democrat, whose reporter covered the Madison trial, greater knowledge of the accused’s identity and appearance than that of any reader. In other words, we cannot disassociate the photograph of George Thomas Brown from the import of the story without dictating that the ordinary reader circumscribe his interpretation of the publication by doubt and disbelief. This we cannot do in law.

The controlling precedent would seem to be Miami Herald Pub. Co. v. Brown, 66 So.2d 679 (Fla.1953). Though this case may end as that one did, deserving only nominal damages if any, that possibility does not arrest Brown’s claim on motion to dismiss for failure to state a cause of action. We have reviewed all the authorities cited by appellee and find them uniformly distinguishable because the offending photograph was not identifiable, because the photograph was not intended to identify a particular person but only to illustrate a general point, or for similar reasons.

The complaint is amendable to allege negligence. The judgment is therefore

REVERSED.

SHIVERS and WIGGINTON, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

We acknowledge the Democrat ⅛ point on rehearing, that for purposes of presuming damages from published matter defamatory on its face, the doctrine of libel per se was pronounced “no longer a viable doctrine” by From v. Tallahassee, Democrat, Inc., 400 So.2d 52, 57 (Fla. 1st DCA 1981), pet. for rev. den., 412 So.2d 465 (Fla.1982), since in all cases not involving actual malice “pleading and proof of actual injury are required” by Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

Our single reference to “libel per se” in the principal opinion is no resuscitation of presumed damages, as we trust the opinion elsewhere demonstrates; rather it is but recognition that here the alleged defamatory meaning may be considered fairly present on the face of this publication. Because that is so, the complaint does not require allegations of inducement and innuendo as explained by Boyles v. Mid-Florida Television Corp., 431 So.2d 627, 635 (Fla. 5th DCA 1983).

The motion for rehearing is DENIED.

ROBERT P. SMITH, Jr., SHIVERS and WIGGINTON, JJ., concur.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    John ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1967.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    Rehearing Denied Nov. 30, 1983.
    Richard L. Jorandby, Public Defender; Gary Caldwell, Asst. Public Defender, and Barbara White, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

BERANEK, J., and COCALIS, PATRICIA W., Associate Judge, concur.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting:

I would reverse on the authority of Martin v. State, 379 So.2d 179 (Fla. 1st DCA 1980) and Ricard. v. State, 181 So.2d 677 (Fla. 3d DCA 1966).


text:
    Carol M. ANDERSON, Appellant, v. ROSSMAN & BAUMBERGER, P.A., a professional association for the practice of law, Stephen F. Rossman, Robert D. Peltz and Debra Sue Restivo, Appellees.
    No. 82-2397.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 1983.
    Rehearing Denied Dec. 7, 1983.

      Carol M. Anderson of Anderson & Anderson, P.A., Fort Lauderdale, pro se.
    Richard P. Cole, George Chesrow and John W. McLuskey of Walton Lantaff Schroeder & Carson, Miami, for appellees.
   PER CURIAM.

Appellant, Carol M. Anderson, a lawyer, represented Debra Sue Restivo in a personal injury action, resulting in a favorable verdict of $500,000. The parties thereafter settled Restivo’s claim for $400,000. Although Anderson had a fee contract with Restivo for one-third of the recovery, she claimed she was entitled to more than that amount because of additional services she had rendered in recovering property damages due Restivo’s subrogated insurance carrier. When Anderson refused to pay over the proceeds of the settlement, Restivo filed suit against her, claiming breach of contract. The complaint was amended several times to include counts for intentional infliction of emotional distress, conversion, theft, and intentional breach of fiduciary duty.

Anderson filed a third party complaint against the law firm representing Restivo, Rossman & Baumberger, and the various partners thereof, seeking indemnity and damages for intentional infliction of emotional distress. The trial court dismissed Anderson’s second amended third party complaint, and she has perfected this appeal.

[I] We have carefully considered the complaint in question and agree with the trial court’s disposition thereof. The claim for indemnity as pleaded by Anderson will not lie because if there is liability for a tort Anderson would not be a passive tortfeasor. Foss v. Moskowitz, 359 So.2d 24 (Fla. 3d DCA) cert. denied 365 So.2d 711 (1978). Furthermore, Restivo could not plead a cause of action against Anderson arising out of Anderson’s actions taken at the direction of Restivo’s counsel. Thus, no indemnity claim could be based on Anderson’s conduct described in the third party complaint.

In order to state a cause of action for intentional infliction of emotional distress, the defendant’s conduct must exceed all bounds which could be tolerated by society. Slocum v. Food Fair Stores of Florida, 100 So.2d 396 (Fla.1958). The conduct must be so outrageous in character and so extreme in degree as to go beyond all standards of decency. Ford Motor Credit Co. v. Sheehan, 373 So.2d 956 (Fla. 1st DCA), cert. dismissed, 379 So.2d 204 (Fla.1979). Perhaps the best description of the character of the necessary conduct is found in Food Fair, Inc. v. Anderson, 382 So.2d 150 (Fla. 5th DCA 1980):

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the .recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

382 So.2d at 153, quoting Restatement (Second) of Torts § 46 comment d. The allegations of Anderson’s third party complaint do not rise to the required level. Furthermore, the primary conduct relied upon arises out of pleadings filed by the third party defendant law firm in a pending law suit. Defamatory statements made in that context are privileged under most circumstances. As the court stated in Sussman v. Damian, 355 So.2d 809 (Fla. 3d DCA 1977),

It is the established law of this state that defamatory words published by lawyers during the due course of a judicial procedure are absolutely privileged and cannot form the basis for a defamation action so long as the statements uttered are connected with, or are relevant or material to the cause at hand or the subject of inquiry no matter how false or malicious such statements may in fact be. This privilege extends to the taking of a deposition or to conversations between opposing counsel in a pending civil action in which the attorney represents one of the parties involved....
... As such, the law has long looked with disfavor on such slander actions against lawyers uttered in the due course of judicial procedure except in the most extreme cases where the defamatory statement was totally irrelevant to the lawsuit and was uttered with deliberate and premeditated malice. 1 Harper and James, the Law of Torts, 427 (1956).

355 So.2d at 811. See also Pledger v. Burnup & Sims, Inc., 432 So.2d 1323 (Fla. 4th DCA 1983).

Anderson also complains of the trial court’s refusal to allow her to further amend her third party second amended complaint. Under the circumstances of this case we find no reversible error in this regard.

Accordingly, the judgment appealed from is affirmed.

DOWNEY, LETTS and HERSEY, JJ., concur.


author: WENTWORTH, Judge.

text:
    F.U.S.A., FTP-NEA, Appellant, v. HILLSBOROUGH COMMUNITY COLLEGE and the Public Employees Relations Commission, Appellees.
    No. AR-227.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1983.
    Rehearing Denied Dec. 6, 1983.

      Richard H. Frank and Mark F. Kelly, of Frank & Kelly, Tampa; for appellant.
    J.W. Cheatham, Deputy Asst. Gen. Counsel, Tallahassee, Public Employees Relations Com’n, William Gray Dunlap, Jr., of Greene, Mann, Rowe, Stanton, Mastry & Bruton, Tampa, for appellees.
   WENTWORTH, Judge.

This is an appeal from a final order of the Public Employees Relations Commission (PERC) which rejected the hearing officer’s recommended order. Because the final order improperly substitutes PERC’s findings of fact for those of the hearing officer, and applied an improper standard of proof, we reverse.

Appellant filed an unfair labor practice charge against Hillsborough Community College alleging that it wrongfully terminated or denied contract renewal to two non-tenured college employees because of their exercise of protected activities. More specifically, the charge alleged that the action against the employees was taken in retribution for their participation in a successful grievance proceeding against the college. The college denied the charges and an evidentiary hearing was, conducted before a Commission hearing officer.

Primarily through the testimony of the employees’ supervisor, the college attempted to show that the decision not to renew the employees was a legitimate management decision motivated by alleged student complaints, and lack of cooperation and credentials on the part of the employees. The hearing officer found that the asserted motivations were pretextual, after-the-fact justifications for the college’s illegal actions. Specifically, the hearing officer found the testimony of the instrumental administrator “less credible because of inconsistencies in his testimony.”

Although some of the evidence may be susceptible of more than one construction, the case turns on issues strictly governed by the credibility of witnesses. The college’s witnesses testified to one version of the interaction between the administration and the employees, while the employees painted a very different picture. Thus, the question “is simply the weight or credibility of testimony by witnesses ... susceptible of ordinary methods of proof, ... when concerning those facts the agency may not rightfully claim special insight.” McDonald v. Department of Banking and Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977). Thus, PERC exceeded its authority in rejecting its hearing officer’s findings of fact. Nor is the scope of this court’s review, as PERC suggests in its brief, limited to a determination of whether its findings are supported by competent substantial evidence. Id.; see also Leapley v. Board of Regents, 423 So.2d 431 (Fla. 1st DCA 1983); and City of Umatilla v. PERC, 422 So.2d 905 (Fla. 5th DCA 1982). When the evidence is viewed in light of the hearing officer’s findings on the issue of witness credibility, the record competently and substantially supports his finding that the failure to renew was in retaliation for an exercise of protected activity.

In addition to rejecting the hearing officer’s factual determination, PERC rejected the standard of proof applied by the officer. Again, we conclude that PERC has erred. The applicable standards were set out in detail in Pasco County School Board v. Florida Public Employment Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1978), in which this court held:

In order to determine whether the evidence sustains a charge alleging an unfair labor practice, when it is grounded upon an asserted violation of protected activity, the following general principles should be considered by the hearing officer and by PERC:
(1) In any such proceeding the burden is upon the claimant to present proof by a preponderance of the evidence that (a) his conduct was protected and (b) his conduct was a substantial or motivating factor in the decision taken against him by the employer.
(2) If the hearing officer determines the decision of the employer was motivated by a non-permissible reason, the burden shifts to the employer to show by a preponderance of the evidence that notwithstanding the existence of factors relating to protected activity, it would have made the same decision affecting the employee anyway. In considering the employer’s explanation, the examiner should attempt to strike an equitable balance between the rights of an employer whose duty, as here, is to promote the efficiency of public services through its public employees, and the rights of a nontenured public school teacher to be secure in his employment, free from discrimination due to his union activity, (e.s.) [footnotes omitted]

Id. at 117. Based upon his determination of the witnesses’ credibility, the hearing officer found that the appellants showed by a preponderance of the evidence that the employees protected conduct was a substantial or motivating factor in the decision taken against them by the employer. The burden then shifted to the employer to show by a preponderance of the evidence that it “would have made the same decision affecting the employee anyway.” Id. Again, the hearing officer’s determination of the credibility issue resulted in the finding that the employer did not make the requisite showing. The hearing officer thoroughly analyzed each of the reasons propounded by the employer as grounds for its actions and discredited all by evidentiary evaluation within his prerogatives. While he might have reached a different conclusion, as did PERC, there is evidence supporting the examiner’s findings and the balance was legally struck in favor of the employees.

PERC’s contention that the entire burden remains upon employees to show that but for the protected activity they would not have been fired (including negation of other asserted grounds) is simply untenable under Pasco, supra. When the employee presents a prima facie case of illegal activity, the burden shifts for the purposes explained in the recommended order herein. Nor does the fact that the evidence is susceptible of more than one construction mean that the employee fails to meet the requisite burden. When as here the evidence may be construed as supporting the hearing officer’s factual determinations, PERC may not substitute its findings simply because it would have resolved the factual questions differently. McDonald, Leapley, City of Umatilla, supra.

The final order is accordingly reversed and the case is remanded for proceedings consistent herewith.

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

      . The order reads, in pertinent part:
      In such a case, the test is now well settled. The Charging Party has the burden to prove that the protected activities were the motivating factor behind the Respondent’s decision. Pasco County School Board v. PERC, 353 So.2d 108 (Fla. 1st DCA 1978); Volusia County Police Benevolent Association v. City of Umatilla, 7 FPER ¶ 12346 (1981). Where the Charging Party meets his burden of establishing this unlawful motivation by a preponderance of the evidence, the Respondent then has the opportunity to demonstrate that notwithstanding the protected activity, the same decision would have been reached. Pasco County, supra; City of Umatilla, supra. In the event that Respondent meets that burden, the Charging Party is then given the opportunity to demonstrate that the reasons advanced by the Respondent are merely pretextual.
      • ... Where, as here, that protected activity is a substantial motivating factor behind an employer’s decision, the discriminatees have proved a prima facie case of a violation of Sections 447.501(l)(a) and (b), Florida Statutes (1981).
      Having concluded that Ehringer’s motivation was unlawful, I must next examine whether the same results would have been reached notwithstanding the grievance. I find that the College has failed to meet its burden of proof to establish this defense.
      ... [I]t is not enough simply to inquire whether there existed reasons which, absent allegations of unlawful motivation, could support the suspension and discharge. City of Umatilla, supra.... Rather, the well-established standard of proof of motivation ... requires that:
      The circumstances surrounding the alleged misconduct, the inferences to be drawn from the testimony and actions evidenced in the record and the soundess of these allegations when tested against such circumstances and inferences shall be the primary focus ... to weigh the record evidence and determine whether the reasons offered by an employer in support of its actions were actually motivated by legitimate business considerations or were the reasons given merely pretextual in nature.

        City of Umatilla, supra (emphasis supplied), quoting Columbia County Transportations and Maintenance Workers Association v. Columbia County School Board, 3 FPER 58, 61 (1977), aff’d, 353 So.2d 127 (Fla. 1st DCA 1977).

      . PERC’s order concludes “.. . an employer is under no obligation to affirmatively prove the dominance of the articulated legitimate reasons.” In addition to the quoted conflicting language from the Pasco opinion, we note most recently the U.S. Supreme Court’s restatement of the controlling principle in this situation to the effect that “the burden would be on the defendant to show by a preponderance of the evidence that he would have reached the same decision even if, hypothetically, he had not been motivated by a desire to punish plaintiff for exercising his First Amendment rights.” NLRB v. Transportation Management Corp., -U.S. -, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983).


author: GRIMES, Acting Chief Judge.

text:
    Charles PUCKETT, Appellant, v. CODISCO, INC., formerly known as Coastline Equipment of Tampa, Inc., a Florida corporation, and Fan World, Inc., a Florida corporation, Appellees.
    No. 83-81.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1983.

      Elizabeth Anne Goodale, Largo, for appellant.
    Mary A. Edenfield of Mateer, Harbert, Frey, Bechtel & Phalin, P.A., Orlando, for appellees.
   GRIMES, Acting Chief Judge.

Codisco, Inc., obtained a $21,800.73 judgment against Fan World, Inc., and its president, Charles Puckett, for merchandise sold to Fan World, Inc. The court held that Puckett was liable for the obligations of Fan World, Inc., by reason of his execution of a credit application. The court declined to permit Puckett to introduce parol evidence directed toward showing that he signed the application only as president of Fan World, Inc., and not in his individual capacity.

The credit application is reproduced in full as follows:

CREDIT APPLICATION

The court reasoned that as a matter of law the printed language above Puckett’s signature constituted a personal guaranty on his part.

The language in the credit application which refers to personal guaranty, and the omission of a reference to Puckett’s corporate capacity next to his signature tend to support the court’s ruling. However, there are other aspects of the credit application which suggest that Puckett signed it only in a representative capacity. The document recites that the undersigned applies for an extension of credit, and it is obvious from the information which is requested that the credit is being extended to Fan World, Inc. Thus, Fan World, Inc., could be expected to sign the application, thereby verifying the credit data. If Fan World, Inc., was to sign the application, merely writing the name of the corporation would not suffice. Someone would have to sign on the corporation’s behalf and it would be logical for its president to do so. The guaranty reference to “payment of its accounts” is awkward, and the fact that the words “Fan World, Inc.” appear to be written in handwriting different than Puckett’s signature adds to the confusion. The handwritten bracketing of the signature lines may also have some significance.

Viewed as a whole, we cannot say that the credit application unambiguously points to personal liability. Cf. Steele v. Hallan-dale, Inc., 125 So.2d 587 (Fla. 2d DCA 1960), in which this court construed an indemnity agreement as unambiguously reflecting the intent to impose personal liability. Where it is uncertain whether an instrument was intended to bind a signator in an individual or representative capacity, parol evidence is admissible to explain the ambiguity. Stein v. Miss Franie's, Inc., 417 So.2d 726 (Fla. 1st DCA 1982); see Annot., 70 A.L.R.3d 1276 (1976). In seeking to determine the capacity in which a party signs a document, it does not matter whether the ambiguity is “patent” or “latent.” Landis v. Mears, 329 So.2d 323 (Fla. 2d DCA 1976).

Thus, we hold that the court erred in refusing to allow parol evidence. We hasten to add that since the credit application is not a negotiable instrument, formerly subject to the Negotiable Instruments Law and now covered by the Uniform Commercial Code, we need not consider the import of cases such as Betz v. Bank of Miami Beach, 95 So.2d 891 (Fla.1957). The judgment is reversed, and the case is remanded for a new trial.

SCHEB and CAMPBELL, JJ, concur.


text:
    John R. SPEY, Blanche Wenzel, William R. Leibold, James Yealy, William J. Hord, Donald F. Elwell, Arthur J. Bogan, and Marian Harris, Appellants, v. Hayward T. HAYES, Dee Parkton, Bob L. Echols, Michael M. Mitchell, and Moe Hersh, individually and as County Commissioners of Okaloosa County, Florida; W.C. Jones and Walton Grocery Company, Inc., Appellees.
    No. AN-290.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1983.
    John P. Townsend of Selby, Chesser, Wingard & Barr, Fort Walton Beach, for appellants/cross-appellees.
    James E. Moore, Jr., of Moore & Moore, Niceville, and Elaine N. Duggar of Gardner, Shelfer & Duggar, Tallahassee, for appel-lees/cross-appellants W.C. Jones and Walton Grocery Co., Inc.

      John R. Dowd, Fort Walton Beach, for appellees County Commissioners of Okaloo-sa County, Fla.
   PER CURIAM.

This cause is before us on appeal and cross-appeal from a final order of the trial judge on remand. In Spey v. Hayes, 406 So.2d 1176 (Fla. 1st DCA 1981), this court remanded for determination of the relief to be afforded appellants in a suit seeking a mandatory injunction to require removal of improvements allegedly constructed in violation of the Santa Rosa Island Protective Covenants and Restrictions. Noting that “something less than the destruction of the improvements can be required and a reasonable time for conversion to permitted uses allowed,” this court left the determination of the relief to be afforded appellants to the discretion of the trial judge, after taking into account the factual matters and equitable considerations involved.

Since no abuse of discretion by the trial judge requiring reversal has been shown, we affirm his finding that the plans submitted by the property owner, as modified by the trial court, will bring the subject property into compliance with the restrictive covenants and this court’s opinion. Cross-appellants’ assertions of error are without merit. The order is affirmed without prejudice to appellees’ right to seek waiver or modification of the covenants in question, with the written consent of the majority of the lessees of the lots in the area, under the terms of the covenants.

ROBERT P. SMITH, Jr., and BOOTH and ZEHMER, JJ., concur.


text:
    RING POWER CORPORATION, Appellant, v. L.E.C. EQUIPMENT CORPORATION, Appellee.
    No. AQ-345.
    District Court of Appeal of Florida, First District.
    Nov. 8, 1983.
    Rehearing Denied Dec. 8, 1983.
    John A. DeVault, III, and Peter D. Webster of Bedell, Dittmar, DeVault, Pillans & Gentry, Jacksonville, for appellant.
    Alan C. Sundberg and Cynthia S. Tunni-cliff of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tallahassee, Brett D. Anderson, Miami, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of an order entered pursuant to a jury verdict awarding appellee $600,000 in compensatory damages and $1,100,000 in punitive damages. We find that the claim for fraud in the inducement to contract was properly submitted to the jury, and that the order is otherwise without error.

The order appealed is affirmed.

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