author: PER CURIAM. DANIEL S. PEARSON, Judge,

text:
    Bonnie CALDER, Appellant, v. Steven F. UWANAWICH and Mary Uwanawich, Appellees.
    No. 83-1151.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.
    Rehearing Denied May 31, 1984.

      Paul R. Lipton, North Miami Beach, for appellant.
    Burton & Fisher and Ann Mason Parker, Miami, for appellees.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Having examined the record before us we conclude that the trial court did not err in granting a summary judgment premised upon a determination that the appellant’s action was barred by the applicable statute of limitation, § 95.11(3)(j), Fla.Stat. (1979). See Steiner v. Ciba Geigy Corp., 364 So.2d 47 (Fla. 3d DCA 1978), cert. denied mem., 373 So.2d 461 (Fla.1979); Codding v. Phillips, 296 So.2d 554 (Fla. 3d DCA), cert. denied mem., 304 So.2d 125 (Fla.1974); Matthews v. Matthews, 222 So.2d 282 (Fla. 2d DCA 1969); § 95.031, Fla.Stat. (1979).

Affirmed.

DANIEL S. PEARSON, Judge,

dissenting.

In March 1980, the appellant, Bonnie Calder, sued the Uwanawiches, seeking damages under a claim of unjust enrichment and a related claim of fraud and misrepresentation. The trial court granted the appellees’ motion for summary judgment on the ground that these claims were barred by the applicable statute of limitations, § 95.11(3)(j), Fla.Stat. (1979). I would reverse.

The facts underlying this controversy from which the trial court concluded that the actions were limitations barred are found in Calder’s deposition. The deposition reflects that in the latter part of 1972, Bonnie Calder was experiencing marital difficulties and sought the advice of Mary Uwanawich, a gypsy fortuneteller. At their second meeting, Mary instructed Calder to purchase a tomato, wrap $200 around it, put it in a paper bag, place the bag underneath her bed, and to return with the tomato so that Mary could determine whether Calder was cursed. Calder followed these instructions and returned the next day. Mary stomped on the tomato, finding inside a black hairy mass and an object resembling an eye. From this, Mary concluded that Calder was indeed cursed and informed Calder that this curse was put upon her with money and therefore must be removed with money.

Either during or shortly after this meeting, Mary asked about Calder’s finances. She advised Calder that in order to rid herself of this curse, it was necessary for Calder to wear upon her body $53,000 in cash and to spit into a jar three times, fill it with water, and place the jar in a paper bag underneath her bed. Calder followed Mary’s instructions and, still clad in money, returned to Mary’s apartment a few days later with the jar in the paper bag and a large pot. Mary rubbed the money and the paper bag containing the jar over Calder’s body. She removed the jar from the bag, discovered that it contained substances resembling blood clots and tumorous growths, and said, “Now we must burn this money to destroy this curse.” In Calder’s presence, the money, now wrapped in a bandanna, was placed in the pot and ostensibly burned.

Mary and Calder soon became friends. Calder loaned Mary $25,000 with which to purchase a home in Florida and gave her various sums for St. Ann’s Church. Mary moved to Florida, and she and Calder kept in contact by telephone.

During one telephone call, Calder told Mary that contrary to Mary’s instructions, Calder had inadvertently touched a pamphlet distributed by another gypsy reader. Mary told Calder that Calder was once again cursed and arranged to fly to New York to meet with Calder to repeat the jar and money-wearing/burning ritual. Thus it was that in September 1973, Calder, obviously having money to burn, once again brought Mary another $53,000, a jar, and a pot to the arranged meeting place, an airport hotel. Mary took the pot and dashed out of the room and into the hallway. Calder called for her to wait, noticing that Mary had a funny look on her face. Calder admitted that at this point, she became “a little bit suspicious.” Calder caught up with Mary, and both women walked to the rear of the hotel to an empty lot. Mary placed scraps of newspaper in the pot, and Calder asked to see the money in the pot. Mary told Calder that the money was there and that it would be bad luck if she “undid anything.” Calder then tried to “poke around” the pot, but Mary, holding a stick in her hand, pushed Calder away. The “burning” concluded, Mary admonished Calder for “trying to stir up trouble,” and the two parted company on friendly terms.

The question before us is whether the foregoing evidence conclusively demonstrates that Calder by September 1973 discovered or with the exercise of due diligence should have discovered the fraud which she alleges was perpetrated upon her, so as to make her action limitations barred as a matter of law.

The statute of limitations for an action based on fraud is strictly construed against the party bringing the action and begins running when the alleged basis for the action was either discovered or should have been discovered by the exercise of due diligence. Matthews v. Matthews, 222 So.2d 282 (Fla. 2d DCA 1969). However, while “the law of fraud does not endorse a hear no evil, see no evil approach, neither does it require that an aggrieved party have proceeded from the outset as if he were dealing with thieves.” Hudak v. Economic Research Analysts, Inc., 499 F.2d 996, 1002 (5th Cir.1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975).

I regard the circumstances attending the money-burning rituals of 1972 and 1973 as presenting a jury question whether the fraud alleged should then have been discovered by Calder through the exercise of due diligence. In Pinkerton v. West, 353 So.2d 102 (Fla. 4th DCA 1977), cert. denied, 365 So.2d 715 (Fla.1978), the client, Pinkerton, retained West, an attorney, to enforce in this state a foreign order for alimony ar-rearages. West advised his client, and she agreed, to accept her former husband’s offered settlement as it was likely that he would respond by declaring bankruptcy. The client later sued the attorney, claiming that she was misadvised and that she discovered this misadvice only after consulting with another attorney. The attorney raised the affirmative defense that the suit was barred by the statute of limitations and successfully moved for summary judgment on that ground because more than two years before the suit was filed, the client, indisputably, had read an article informing her that bankruptcy does not discharge alimony and had written to the attorney questioning his competence and ethics. The appellate court reversed, noting that after Pinkerton read the newspaper article, she, as any layperson would have done, went to her attorney for confirmation and clarification and received assurances from the attorney that the law cited in the article was inapplicable in Florida. The court then held that it could not be said that as a matter of law Pinkerton was charged with knowledge that her lawyer erred or that she failed to use reasonable diligence to discover the mistake, and that it was a question of fact to be determined by the trier of fact “whether his incompetence was so glaring and of such magnitude that his client was on notice to pay no attention to any of his legal advice.” 353 So.2d at 103. Similarly, in Walker v. Dunne, 368 So.2d 640 (Fla. 2d DCA 1979), where a doctor informed a patient that a balloon tip was lost in her leg during surgery, but assured her that the subsequent amputation of that leg was unrelated, the appellate court overturned a summary judgment for the defendant doctor upon a holding that there was a factual issue as to whether the doctor “fraudulently concealed his negligence, and thus there was a factual issue as to whether his conduct tolled the statute of limitations.” 368 So.2d at 641. And in Swagel v. Goldman, 393 So.2d 65 (Fla. 3d DCA 1981), where the trial court granted summary judgment for the defendant based upon its conclusion that, as a matter of law, the limitations period began to run when after an operation the plaintiff learned he was incontinent, the appellate court reversed, reasoning that a genuine issue of material fact as to whether the plaintiff discovered or should have discovered the plaintiffs alleged malpractice was presented by the additional circumstances that the defendant-doctor continued to treat the plaintiff and assured him that the incontinence was a temporary and normal after-effect of the surgery. See also Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978) (plaintiff did not as a matter of law have sufficient notice of negligent act or injury where medical defendant or his agent acted to prevent inquiry, elude investigation, and mislead the plaintiff as to the existence of the cause of action); Eland v. Aylward, 373 So.2d 92 (Fla. 2d DCA 1979).

In the present case it cannot be said that as a matter of law Calder discovered or should have discovered the alleged fraud when, becoming “a little bit suspicious,” she asked to see if the money was really in the pot, in light of Mary’s assurances that the money was there, and Mary’s threat of continued bad luck if the ritual were interrupted by Calder’s further actions. The most that can be said of this evidence is that it, as the evidence in Pinkerton, gave rise to a “suspicion of the trauma,” see Steiner v. Ciba-Geigy Corporation, 364 So.2d 47, 53 (Fla. 3d DCA 1978), that is, a suspicion that the money was being taken rather than burned. Therefore, since it cannot be said, as a matter of law, that before March 12, 1976, see n. 4, supra, Calder realized or, more aptly, should have realized, the alleged fraud, this issue must be left for the trier of fact to decide. See Burnside v. McCrary, 382 So.2d 75 (Fla. 3d DCA 1980); Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980); Rosen v. Sparber, 369 So.2d 960 (Fla. 3d DCA 1978); Schetter v. Jordan, 294 So.2d 130 (Fla. 4th DCA 1974). But see Matthews v. Matthews, 222 So.2d 282 (where the court held that where the record conclusively showed that the plaintiff discovered the fraud more than three years before instituting the suit, the suit was thus limitations barred as a matter of law, but in dictum stated that the question of whether the plaintiff should have discovered the fraud was one of law to be determined by the court).

The concept of reasonable diligence in discovering a cause of action inevitably “involves, to some extent at least, the state of mind of the person whose conduct is to be measured against this test and it is simply not feasible to resolve such an issue on motion for summary judgment.” Azalea Meats, Inc. v. Muscat, 386 F.2d 5, 10 (5th Cir.1967). It is obvious to me that the trial judge, and my fellow judges on the panel, have come to their own conclusions that Calder was guilty of colossal naivete in placing her trust in a gypsy fortuneteller. Perhaps, even probably, this conclusion would be reached by a vast majority of the people in our community. But merely because Calder’s faith may be exotic to the mainstream of society, she should not be held to some higher standard of diligence than is imposed on a plaintiff who is alleged to have been taken in by more common schemers. Although a judge may be of the view “that there were enough red flags” to have alerted the plaintiff that there was something amiss, this is a determination to be made by the trier of fact. Campbell v. Cowell, 342 So.2d 1037 (Fla. 4th DCA 1977). Calder says she believes in gypsy fortunetellers. A judge’s personal skepticism about that belief does not permit him to rule as a matter of law that Calder should have shared that skepticism. In my view, the sincerity of Calder’s belief and the reasonableness of her reliance on Uwanawich’s representations must be determined by a jury.

      . In response to the dissent we note only that Calder’s naivete, colossal or otherwise, is not the issue upon which this case turns. We merely decline to add gypsy fortuneteller to the list of professionals who the reasonably prudent person might believe owe a fiduciary duty to a client. The cases cited by the dissent are therefore inapposite.

      . These claims were contained in Counts II and III of Calder's second amended complaint. The original complaint, filed in June 1979, was a suit on a $25,000 promissory note, which became Count I of the second amended complaint. This count, totally unrelated to Counts II and III, is still pending in the trial court and is not involved in this appeal.

      . Calder’s deposition is primarily devoted to the activities of Mary Uwanawich. Steven Uwana-wich, Mary’s husband, was alleged in the complaint to have conspired with Mary.

      . Calder admits that in the fall of 1977, she read a book called King of The Gypsies that made her become uneasy about the Uwanawiches. Calder discussed with Mary the gypsy schemes which the book portrayed, and Mary responded that bad gypsies keep the money, and good gypsies burn it, and that she, Mary, was a good gypsy. Calder began to have her doubts. In January 1979, Calder visited another fortuneteller and told her of the 1972-1973 money-burning incidents. The fortuneteller told Calder that they never burned the money, and Calder realized she had been conned and went to the police. It is clear that only events occurring before March 12, 1976, that is, four years before the second amended complaint was filed, are relevant to the inquiry whether Calder discovered or should have discovered the alleged fraud. It is also irrelevant for present purposes that the four-year limitation period of Section 95.11(3)(j), Florida Statutes (1979), first became effective on January 1, 1975, and that as to actions arising beforehand, the predecessor three-year limitations period contained in Section 95.11(5)(d), Florida Statutes (1973), applies. See McGlynn v. Rosen, 387 So.2d 468 (Fla. 3d DCA 1980). If Calder discovered or should have discovered the alleged fraud by September 1973, her action is clearly time barred under the three-year statute of limitations; if she did not discover or should not have discovered it until at least 1977, her action is not time barred under the applicable four-year statute of limitations or even the inapplicable three-year statute of limitations.

      . The statute of limitations in existence at the time of the 1972 and 1973 events, see § 95.-ll(5)(d), Fla.Stat., provided that a cause of action for fraud is not deemed to be accrued until "the discovery by the aggrieved party of the facts constituting the fraud.” This was construed to mean not simply actual discovery, but also "should have been discovered by the exercise of due diligence." See Matthews v. Matthews, 222 So.2d 282. In 1974, Section 95.031 (effective January I, 1975) was added so as to incorporate this construction as part of the statute of limitations.


source: Caselaw Access Project

author: BARKDULL, Judge.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Robert Jay WEISS, Appellee.
    No. 83-1252.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.
    Rehearing Denied May 25, 1984.

      Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellant.
    Weiner, Robbins, Tunkey & Ross and Robert G. Amsel and Alan S. Ross and Geoffrey C. Fleck, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   BARKDULL, Judge.

On the evening of February 11, 1983, the defendant checked into the Bounty Hotel. At the time he asked Mr. Casey, a manager of the hotel, if he had a safety deposit box that his man’s carrying purse would fit into, as it contained a large amount of money and he would like to secure it. Mr. Casey offered to put the purse into the hotel safe with the defendant’s name on it. The defendant agreed to this and the purse was placed in the safe. The next morning Mrs. Casey, who was also a manager of the hotel, was on duty. Another guest wanted some of his money from the safe. Mrs. Casey did not have the key to the safe at that time so she gave him some money from the cash register. Later she obtained the keys and went into the safe to retrieve that guest’s money. In order to do so she had to remove the defendant’s purse. As she removed the purse some white powder fell out. The zipper of the purse was partially open and a gold watch band was hanging out. As she replaced the watch in the purse she observed a plastic bag with white powder in it. She closed the purse and locked it in the safe. Thereafter, being concerned that the white substance was illegal she told her husband about it. Mr. Casey got the purse from the safe and opened it. He also observed the plastic bag with the white powder. He then closed the purse and called the police telling them what he had found. Two officers from the Miami Police Dept, arrived at the hotel and Mr. Casey gave the purse to an Officer Fenner who observed that the purse was partially opened and contained a small amount of a white powder visible around the zipper. Officer Fen-ner, without benefit of a search warrant, then opened the purse finding two or three zip-lock plastic bags containing a white substance, a gold watch and some money. The inside of the purse had white powder in it. Officer Fenner took a small quantity of the powder from the inside bottom of the purse and field tested it for cocaine. The test was positive. The defendant was arrested and subsequently charged with trafficking in cocaine in violation of Section 893.135 Florida Statutes (1981) and possession of a controlled substance (cocaine) in violation of Section 893.13 Florida Statutes (1981). The defendant moved to suppress all evidence found in his purse on the ground that the items were obtained through an illegal search and seizure. The trial court found the warrantless search illegal on the ground that a person has a right to the expectation of privacy in the personal contents of one’s luggage. The trial court further found that the search herein was not a private search but a governmental search which was not justified by the plain view exception. We reverse. Beyond any question, when the defendant turned his purse over to the manager of the hotel he had a reasonable expectation of privacy therein which would render a warrantless search by government agents unreasonable and in violation of the Fourth Amendment to the Constitution of the United States. However, the initial invasion of the defendant’s purse was occasioned by private action. Whether that action was accidental or deliberate and whether it was reasonable or unreasonable, it did not violate the Fourth Amendment because of its private character. The additional invasion of the defendant’s property by the police must be tested by the degree to which they exceeded the private search. The United States Supreme Court was recently confronted with a similar situation in the case of United States v. Jacobsen, — U.S. —, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), wherein the following was stated:

“When the first federal agent on the scene initially saw the package, he knew it contained nothing of significance except a tube containing plastic bags and, ultimately, white powder. It is not entirely clear that the powder was visible to him before he removed the tube from the box. Even if the white powder was not itself in ‘plain view’ because it was still enclosed in so many containers and covered with papers, there was a virtual certainty that nothing else of significance was in the package and that a manual inspection of the tube and its contents would not tell him anything more than he already had been told. Respondents do not dispute that the Government could utilize the Federal Express employees’ testimony concerning the contents of the package. If that is the case, it hardly infringed respondents’ privacy for the agents to reexamine the contents of the open package by brushing aside a crumpled newspaper and picking up the tube. The advantage the Government gained thereby was merely avoiding the risk of a flaw in the employees’ recollection, rather than in further infringing respondents’ privacy. Protecting the risk of misdescription hardly enhances any legitimate privacy interest, and is not protected by the Fourth Amendment. Respondents could have no privacy interest in the contents of the package, since it remained unsealed and since the Federal Express employees had just examined the package and had, of their own accord, invited the federal agent to their offices for the express purpose of viewing its contents. The agent’s viewing of what a private party had freely made available for his inspection did not violate the Fourth Amendment. See Coolidge v. New Hampshire, 403 U.S. 443, 487-490 [91 S.Ct. 2022, 2048-2050, 29 L.Ed.2d 564] (1971); Burdeau v. McDowell, 256 U.S. 465, 475-476 [41 S.Ct. 574, 576-577, 65 L.Ed. 1048] (1921).
Similarly, the removal of the plastic bags from the tube and the agent’s visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the private search. It infringed no legitimate expectation of privacy and hence was not a ‘search’ within the meaning of the Fourth Amendment.”

Clearly the police herein did nothing further than the government agents did in United States v. Jacobsen, supra. They examined the contents of the partially opened purse finding exactly what they were told they would find by the hotel manager. Therefore, their actions did not constitute a search within the meaning of the Fourth Amendment. The subsequent clinical test of the white powder did not compromise any legitimate interest in privacy. See United States v. Jacobsen, supra.

Thus the police did not infringe on any constitutionally protected privacy interest that had not already been infringed upon by the private search and the trial court erred in granting the motion to suppress.

Therefore, on the basis of United States v. Jacobsen, supra, the order suppressing the evidence found in the purse is hereby reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.

      . While the trial court in reaching its conclusion herein was guided by the case of United States v. Jacobsen, 683 F.2d 296 (8th Cir.1982), it must be noted it did not have the benefit of the opinion of the Supreme Court in United States v. Jacob-sen, supra.


author: PER CURIAM.

text:
    Franklin Delano LINDSAY, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1713.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.
    Rehearing Denied May 31, 1984.
    Richard A. Barnett, Hollywood, Mare N. Linowitz, Miami, for appellant.
    Jim Smith, Atty. Gen. and Renee E. Rus-ka, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Summerson v. State, 200 So.2d 594 (Fla. 3d DCA 1967).


author: NESBITT, Judge. BARKDULL, Judge,

text:
    Sally D. MOLDOFSKY, Appellant, v. Susan M. STREGACK, as Personal Representative of the Estate of Manuel Moldofsky, deceased, Appellee.
    Nos. 83-1725, 83-1754.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.
    Rehearing Denied May 30, 1984.

      Shorenstein & Lewis and Marvin Lewis, Miami, for appellant.
    Ferdie & Gouz and Ainslee Ferdie, Coral Gables, for appellee.
    Before BARKDULL, HUBBART and NESBITT, JJ.
   NESBITT, Judge.

This is a consolidated appeal from a decision of the probate court striking the appellant widow’s election to take an elective share and the general jurisdiction court’s order dismissing her complaint to set aside an antenuptial agreement. The sole question presented is whether section 732.702, Florida Statutes (1983), which eliminates the need for fair disclosure for a valid antenuptial agreement in the probate context, precludes the surviving spouse from challenging such an agreement on the grounds of fraudulent nondisclosure. We reverse.

In the present case, the widow timely filed a notice of elective share, pursuant to section 732.212, Florida Statutes (1983). The personal representative moved to strike this election, attaching to the motion an antenuptial agreement. In this agreement, the widow and the decedent had purportedly waived all rights in one another’s estates. The widow attacked the validity of the agreement, claiming the decedent had affirmatively misled her as to his actual assets in obtaining her assent. Despite this contention of fraud, the probate court granted the motion to strike. In the interim between the motion to strike and the hearing thereon, the widow had filed an action for cancellation of the antenuptial agreement on the ground of fraud in the general jurisdiction division. Following the probate division’s ruling on the motion to strike, the general jurisdiction division dismissed the action for cancellation with prejudice on the grounds of res judicata and mootness.

Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962), established the common law rule that in order for an antenup-tial agreement to be valid, the husband must make either a fair and reasonable provision for his spouse or a fair and full disclosure of his assets prior to execution of the agreement. In Estate of Roberts, 388 So.2d 216 (Fla.1980), the supreme court acknowledged that section 732.702 abrogated the disclosure requirement in a probate context. Accord Weintraub v. Weintraub, 417 So.2d 629 (Fla.1982). The court noted, however, that “[t]he legislature has not abolished the wife’s right to sue; it has only altered one of the elements that the court may consider in determining the validity of the antenuptial agreement.” Estate of Roberts, 388 So.2d at 217.

We must determine if this elimination of the disclosure requirement includes fraudulent nondisclosure. At common law, simple nondisclosure ordinarily did not constitute actionable fraud. See Ramel v. Chasebrook Construction Co., 135 So.2d 876 (Fla. 2d DCA 1961); Sutton v. Crane, 101 So.2d 823 (Fla. 2d DCA 1958). However, when a party voluntarily assumed the duty to disclose, any suppression or disguise of, or distraction from the truth rendered the matter actionable. Kitchen v. Long, 67 Fla. 72, 64 So. 429 (1914); Nessim v. DeLoache, 384 So.2d 1341 (Fla. 3d DCA 1980). Even though a party owed no duty to disclose facts, if he undertook to do so the common law required disclosure of the whole truth. Ramel v. Chasebrook Construction Co.

The voluntary assumption of the duty of disclosure then is quite different from having no duty to disclose at all. Consequently, if only the element of disclosure has been eliminated by section 732.-702, that should not insulate a false promise or perverted disclosure from a decedent where he voluntarily assumed the duty to disclose. A would-be spouse is under no duty to make any disclosure, and if the marriage is contracted in that context, the statute will insulate him or his estate. The statute, however, cannot and should not protect one who voluntarily averts the truth and thereby misleads a party into contracting the marriage.

Our primary concern in the realm of statutory interpretation is to vindicate the legislative intent. Flagship National Bank of Miami v. King, 418 So.2d 275, 278 (Fla. 3d DCA 1982). The legislative purpose in adopting section 732.702(2) was to abrogate the long-established common law rule which required fair disclosure prior to execution of premarital contracts. Estate of Roberts; Weintraub. The legislature could not have intended, however, that the statute preclude a challenge of a contract fraudulently executed. In adopting the nondisclosure provision, the legislature obviously had knowledge of the existing body of law. The law’s abhorrence of fraud is so strong that had the legislature intended to abrogate fraudulent nondisclosure as well as simple nondisclosure, it would have done so expressly.

The most common grounds for setting aside any contract are the use of fraud, duress or undue influence in obtaining apparent assent. 11 Fla.Jur.2d 328 Contracts § 35. In finding section 732.702(2) constitutional, the supreme court declared that:

[t]he right to have an antenuptial agreement set aside still exists. For example, if a wife were able to show that her signature on such an agreement had been coerced or otherwise improperly obtained or that she was incompetent at the time she signed, section 732.702(2) would not bar her challenge to the validity of the agreement, (emphasis added)

Estate of Roberts, 388 So.2d at 217. See Ellis First National Bank of West Pasco v. Downing, 443 So.2d 337 (Fla. 2d DCA 1983). Since fraud is a long-standing ground for setting aside contracts, we are of the opinion that the court meant for fraud to be encompassed within the phrase emphasized above. Furthermore,, this court has previously indicated that the intent of the legislature in inserting the writing requirement in section 732.702 was to safeguard against fraudulent claims. Flagship National Bank, 418 So.2d at 278. It is therefore apparent that this court still considers fraud a relevant consideration under the statute.

The appellee in the present case relies heavily upon the decision of our sister court in Coleman v. Estate of Coleman, 439 So.2d 1016 (Fla. 1st DCA 1983). Coleman pointedly suggests that section 732.-702(2) precludes the challenge of an ante-nuptial agreement on the ground of fraudulent nondisclosure in a probate context. The actual holding of the court, however, was that the challenge to the antenuptial agreement on the basis of affirmative nondisclosure was foreclosed because the only available proof thereof was barred by the dead man statute. § 90.602, Fla.Stat. (1983). In other words, the court simply held that fraudulent nondisclosure could not be proven. To the extent Coleman may be interpreted to condone fraudulent nondisclosure under section 732.702(2), we elect not to follow it. See State v. Hayes, 333 So.2d 51 (Fla. 4th DCA 1976).

For the reasons set out above, we hold that an antenuptial agreement can be challenged on the ground of fraudulent nondisclosure, and such a challenge is not barred in a probate context by the nondisclosure provision of section 732.702(2), Florida Statutes (1983). We therefore reverse the orders under review and remand the cause for further proceedings.

BARKDULL, Judge,

dissenting.

I respectfully dissent. The agreement in question reads in part as follows:

“WHEREAS, the parties to this agreement contemplate entering into marital relations with each other; and
WHEREAS, Manuel is the owner of real and personal property in his own right, and
WHEREAS, Sally is the owner of personal property in her own right, and
WHEREAS, Manuel has a daughter, SUSAN RHODA MALDON, who is the issue of a former marriage, and
WHEREAS, the parties to this agreement desire that their marriage shall not in any way change their existing legal rights or the existing legal rights of Manuel’s daughter or Sally’s heirs in the real and personal property of each of them, and
WHEREAS, the purpose and intent of this agreement is to fully, perfectly and completely define and limit the claims and demands which each of the parties to this agreement shall have against the estate of the other,
NOW, THEREFORE, it is mutually agreed as follows:
1. All of the recitals hereinabove set forth are hereby embodied in and made a part of this agreement.
3. In consideration of the marriage if Sally shall survive Manuel she shall not as surviving wife make any claim to any part or share of the real and/or personal estate of which Manuel may die seized or possessed or have power of appointment; and Sally, in further consideration of said marriage, hereby waives and relinquishes all claims to any allowance, dower or any other right in and to the real and personal estate of Manuel; and waives and relinquishes all claims to any and all property, both real and/or personal, to. which the said daughter of Manuel may be entitled, by reason of his decease, as beneficiary under any insurance policies or under Manuel’s membership in the New York State Retirement System.
4. Neither party hereto by virtue of said marriage shall have or aequiré any right to claim in and to the real or personal estate of the other, but the estate of each shall descend to or vest in his or her heirs-at-law, legatees or devisees as may be directed by his or her Last Will and Testament or, in default on such Last Will and Testament, by the law then in force as though no marriage had ever taken place between the parties.
8. Each party to this agreement represents to the other that each has had the advice of and has consulted with independent counsel.

The agreement was prepared in 1966 at the request of the appellant, by her lawyers and no complaint about its terms was made during the lifetime of Manuel Moldofsky. He passed away in 1982 and I would sustain the trial judge upon the following authority: Weintraub v. Weintraub, 417 So.2d 629 (Fla.1982); Ellis First National Bank of West Pasco v. Downing, 443 So.2d 337 (Fla. 2d DCA 1983); Coleman v. Estate of Coleman, 439 So.2d 1016 (Fla. 1st DCA 1983).


author: NIMMONS, Judge. MILLS, Judge,

text:
    Charles W. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. AT-422.
    District Court of Appeal of Florida, First District.
    April 25, 1984.
    Rehearing Denied May 30, 1984.

      Michael Allen, Public Defender, and Terry P. Lewis, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

The defendant was convicted of armed robbery on the basis of his involvement as a lookout while his accomplice, Michael Biggs, actually perpetrated the robbery of a convenience store clerk. Prior to trial, Biggs pled guilty to robbery with a firearm and the state agreed to recommend a sentence of a maximum of ten years and a minimum of three years in exchange for Biggs’ testifying for the state at Johnson’s trial. The trial judge agreed to be bound by the state’s recommendation pursuant to the plea agreement. Biggs had not yet been sentenced at the time of the trial, and he became the state’s key witness against Johnson at the trial.

The defendant claims that he was entitled to have the court give Florida Standard Jury Instruction 2.04(9) to the effect that the jury should consider, in weighing the credibility of a witness, whether the witness has been convicted of a crime. The trial judge, not having yet adjudicated and sentenced Biggs, declined to give the charge.

There is no question that the defendant would have been entitled to the instruction if Biggs had already been sentenced. Is he less entitled because the witness was scheduled for sentencing after the trial? Barber v. State, 413 So.2d 482 (Fla. 2nd DCA 1982), indicates that this question should be answered in the negative. In Barber, the state was allowed, over objection, to elicit from the testifying defendant that a week earlier a jury had returned a verdict of guilty against him in a felony ease although he had not yet been adjudicated and sentenced. The Second District stated that there was “no significant difference in probative value between a jury’s finding of guilt and the entry of judgment thereon” and held that the verdict constituted a prior conviction for purposes of impeachment. 413 So.2d at 484. See also United States v. Klein, 560 F.2d 1236 (5th Cir.1977); Ehrhardt, Using Convictions to Impeach Under the Florida Evidence Code, Vol. 10 F.S.U.L.Rev. 235, 240. Although Barber and Klein involved verdicts of guilty instead of pleas of guilty as in the case at bar, we perceive no logical reason why a different result should obtain because the defendant pled guilty instead of being found guilty.

But what about the possibility that the witness may not ultimately be adjudicated of the felony if the court decides to withhold adjudication? Barber also addressed that consideration:

One may reasonably suggest that an anomaly will occur if the court ultimately chooses to withhold adjudication and place appellant on probation for the crime which the jury had previously found him guilty. Should this happen, appellant cannot thereafter be impeached by evidence concerning that crime. United States v. Georgalis, 631 F.2d 1199 (5th Cir.1980). However, the result under those circumstances would be no different than if a witness’s judgment of guilt was ultimately reversed on appeal. Until such time as the reversal occurs, evidence of his judgment of guilt may be admitted for impeachment, and the fact that an appeal is pending may also be shown. Likewise, if a witness has been impeached by evidence that he has previously suffered an adverse verdict of guilt, evidence will also be admissible to show that no adjudication has yet been made. See United States v. Smith [623 F.2d 627 (9th Cir.1950) ].

413 So.2d at 484.

We, therefore, hold that, for purposes of impeachment, the trial court was required to regard Biggs as having been convicted of a crime within the meaning of the Florida Evidence Code, Section 90.610, Florida Statutes (1981). The defendant was, therefore, entitled to have the jury instructed in accordance with Standard Jury Instruction 2.04(9) so that the jury would know that it was required to consider such conviction in weighing the credibility of Biggs’ testimony. We are unable to conclude that the error was harmless. Biggs’ testimony was critical, if not indispensable, to the state’s case and his believability was a crucial issue which had to be resolved by the jury upon proper instructions by the court.

The defendant also claims that the trial court reversibly erred in denying his motion for mistrial on the grounds that the prosecutor, during closing argument, expressed a personal belief in the guilt of the defendant. The remarks complained of by the defendant occurred at the beginning of the prosecutor’s rebuttal argument immediately after defense counsel’s concluding remarks “that, based upon the evidence before you, you have no alternative but to return a verdict of not guilty. You must have reasonable doubt.” The prosecution then stated:

It’s just an opportunity for me to get up and address what Mr. Cofer told you in his arguments and how the State would view those arguments. And you know, it sort of reminds me, you know, you look at different techniques, the State gets up and says: Look at the facts, put them together, and the man’s guilty, and that’s our belief.

Defense counsel immediately moved for a mistrial, and the court denied the motion. The defendant argues that this court’s holding in Reed v. State, 333 So.2d 524 (Fla. 1st DCA 1976), requires reversal. We disagree. Examination of the Reed case shows the prosecutor’s above remarks to be relatively innocuous in comparison to the prosecutor’s statements in Reed which prompted this court to reverse for a new trial:

Appellant was charged and found guilty of the sale of marijuana. Trial evidence disclosed a single transaction between appellant and a police officer. No evidence of any character was adduced as to appellant having been previously engaged in the sale of drugs to any other persons. However, the prosecuting attorney argued to the jury as follows:
You have got a tough decision to make in this case. It’s not an easy one. The last ten years drug trafficking and drug abuse in this country has skyrocketed. It’s a spreading disease. Drug abuse has spread down from colleges to high schools down to grade schools. You read in papers now about children in grade schools, grammar schools using drugs, and where do those drugs come from? From people who are willing to make money off of them.
Now, we’ve got a police force that is trying to make arrests on dope peddlers. We’ve got Courts that are willing to try dope peddlers. We’ve got prosecutors that are willing to prosecute dope peddlers to try to clean up this country. But the ultimate and the final responsibility, the whole system comes down to one focal point, one responsibility: Citizens of each community that sit on juries of these cases. You have the ultimate power over controlling drug abuse: Sitting on drug cases and listening to the testimony, deciding whether the State has proved its case. The welfare of the citizens of Florida and the people of Duval County, I’m contending, ask that you return a verdict of guilty in this case after considering the evidence. The decision is yours, though, and I ask you to consider it very carefully. Thank you.

In addition, the prosecuting attorney, in commenting as to defense counsel’s role, argued:

Mr. Jacobson is the Defense Counsel in this case. His responsibility as the Defense Counsel is to defend someone charged with a crime. That’s his duty. His responsibility in this case is to provide the best defense possible for his client, and he’s doing just that: The best defense possible.
Mr. Jacobson doesn’t share any guilt that his client may have; he’s merely doing his job in this case....

The prosecuting attorney also injected his personal belief into his argument by stating:

... All that the State asks for in this case is fairness. The State doesn’t prosecute someone because of their religion or their race or their nationality. We prosecute them because we believe they are guilty of crimes.

[333 So.2d at 525] This court reversed because of the prejudicial effect of the above remarks. The remarks by the prosecutor in the case sub judice are not even in the same league with those quoted above from Reed.

It is often difficult to draw the line between legitimate argument regarding guilt or innocence of the accused and inappropriate urgings by the prosecutor suggesting his personal views of the defendant’s culpability. The prosecutor in the instant case did not say “we prosecute them because we believe they are guilty of crimes,” as was said in Reed, but instead stated, “look at the facts, put them together, and the man’s guilty, and that’s our belief.” We think that the prosecutor’s remark was no more than a suggestion of his view that the evidence indicated guilt. His remarks were certainly no worse than those of the prosecutor in Adams v. State, 54 Fla. 1, 45 So. 494, 495 (1907):

The fifth assignment is founded on the refusal of the court to instruct the jury not to consider the following language used by counsel for the state in his concluding argument to the jury, to wit: “Gentlemen of the jury, in my judgment the evidence in this case amply warrants and demands a verdict of guilty of murder in the first degree, and I ask you to return a verdict of murder in the first degree against this defendant.” It is doubtless improper for a prosecuting officer to state to a jury his personal opinion as to the guilt of a defendant, irrespective of the evidence in the case; but it is certainly competent for him to argue from the evidence the defendant’s guilt, to show what evidence produces the conviction in him and should convince them. People v. Hess, 85 Mich. 128, 48 N.W. 181; 2 Ency.Pl. & Pr. 726. We find no error in this ruling.

But even if we were to regard his remarks as stating the prosecutor’s opinion of the guilt of the defendant, irrespective of the evidence, such remarks certainly did not approach the egregious level as would entitle the defendant to a mistrial:

Juries are composed of men of sound judgment and intelligence. At least so the law requires, and it is not to be presumed that they are led astray to wrongful verdicts by the impassioned eloquence and illogical pathos of counsel.

Tyson v. State, 87 Fla. 392, 100 So. 254, 255 (1924). See also Grant v. State, 171 So.2d 361, 365 (Fla.1965); Cummings v. State, 412 So.2d 436, 439 (Fla. 4th DCA 1982).

We have considered the other issues raised by the defendant and find them to be without merit. We would affirm but for the error first discussed in this opinion and, based thereon, reverse and remand for a new trial.

SMITH, J., concurs.

MILLS, J., concurs in part and dissents in part.

MILLS, Judge,

concurring in part and dissenting in part:

I agree with the majority opinion except I would reverse the trial court’s judgment on the additional ground that the trial court erred in refusing to grant Johnson’s motion for a mistrial made after the prosecutor’s comments expressing a personal belief as to Johnson’s guilt which, in my opinion, is prohibited by Reed v. State, 333 So.2d 524 (Fla. 1st DCA 1976).


author: NIMMONS, Judge.

text:
    DEPARTMENT OF INSURANCE, Appellant, v. J.F. SMITH, Appellee.
    No. AV-296.
    District Court of Appeal of Florida, First District.
    April 25, 1984.

      David A. Yon, Tallahassee, for appellant.
    John W. Searcy of Merritt, Ratchford & Searcy, Pensacola, for appellee.
   NIMMONS, Judge.

The Department of Insurance appeals an order of the Career Service Commission reversing the Department’s dismissal of ap-pellee, J.F. Smith, and ordering back pay. We reverse the Commission’s order.

On October 29, 1982, the Department notified Smith in writing that it intended to dismiss him on November 12, 1982, for unsatisfactory job performance. Smith had received two unsatisfactory performance evaluations. The first evaluation was received on August 30, 1982, for the period from September 1, 1981, through September 1, 1982. The second evaluation was furnished Smith on October 28, 1982, for the period from August 30, 1982, through October 29, 1982. Smith requested and received a pretermination conference. After consideration of Smith’s statements and submissions at the pretermination conference, the Department notified Smith that he was being discharged effective November 18, 1982.

Smith filed an appeal to the Career Service Commission which, pursuant to Section 110.309, Florida Statutes (1981), is empowered to conduct de novo fact-finding hearings to determine whether just cause exists for dismissals or suspensions. The Commission, without reaching the merits as to whether just cause existed for Smith’s dismissal, entered an order in which it recited that it was “directing a verdict” against the Department because, according to the Commission’s reading of Chapter 22A-9, Fla.Admin.Code, the Department was required to give the employee two 60-day performance evaluations after his initial unsatisfactory performance rating, that Smith was given only one 60-day evaluation and that, in any event, the sanction permitted by Rule 22A-9.03(6) and (7) is “removal from the class,” not dismissal. The Commission’s construction of these rules is clearly erroneous.

Under Rule 22A-7.10(7), Fla.Admin.Code, an agency head may dismiss any employee for “just cause” which includes, among other things, “negligence, inefficiency, or inability to perform assigned duties; [and] repeated and/or gross substandard performance of assigned duties.” Chapter 22A-9 sets forth rules for evaluating the work performance of career service employees, and provides that employee performance evaluations are to be used, among other things, as a basis for disciplinary or dismissal actions.

The particular provisions of Chapter 22A-9 with which we are concerned in this case are the following sections of Rule 22A-9.03:

(6) If an employee who has attained permanent status in the class received an overall evaluation of Conditional or Unsatisfactory, the immediate supervisor, with the cooperation of his supervisors, shall be responsible for identifying for the employee the specific improvements necessary for the employee to accomplish satisfactory performance. If at the time of receiving such an evaluation, the employee is retained by the agency, the employee’s performance shall be reevaluated at least each 60 days thereafter until:
(a) The employee’s performance has improved and is evaluated as at least Satisfactory, or:
(b) One hundred twenty calendar days have elapsed without the employee receiving a rating of at least Satisfactory. In such cases, management shall take action to remove the employee from the class.
(7) The agency head may remove the employee from the class at any time if adequate improvement is not made in the employee’s performance from the effective date of the initial Conditional or Unsatisfactory rating. In no case shall an employee be retained in the class for more than 120 calendar days from the effective date of the Conditional or Unsatisfactory rating if the employee’s performance continues to be less than satisfactory during the 60-day rating intervals.
(9) If an employee failed to receive an evaluation by the end of the required evaluation period, the employee’s performance for that period shall be considered satisfactory.

Subsection (6), as noted above, requires that an employee, who is retained after receiving an unsatisfactory evaluation, be reevaluated at least each 60 days thereafter. The Department did indeed give Smith a 60-day evaluation, and Smith was promptly notified that his performance was again unsatisfactory and that the Department intended to dismiss him. The Commission’s interpretation of Rule 22A-9.03 is that agencies must provide an employee with two 60-day evaluations after an initial unsatisfactory performance rating so that an employee is given a total of 120 days within which to upgrade his performance to a satisfactory level. We disagree and hold that the Department was not precluded from proceeding to dismiss Smith after the first 60-day evaluation period. If the Department had, on the other hand, allowed the first 60-day period to run without a performance evaluation, Smith’s performance, by virtue of the provisions of subsection 9, supra, would have been deemed to be satisfactory for that period, and the Department, presumably, would have been precluded from dismissing Smith at that time on the grounds of unsatisfactory job performance. See Department of Law Enforcement v. Allen, 400 So.2d 111 (Fla. 1st DCA 1981).

We also wish to make clear that Chapter 22A-9’s reference to “removal of the employee from the class” should not be construed as a limitation of the remedies available to the agency in dealing with an employee who performs at an unsatisfactory level. It should be kept in mind that Chapter 22-9, which requires employee performance evaluations, does not provide for a one-way street. That is, its purpose and intent is obviously not solely for the benefit of the employee. Its design is also to provide safeguards for the taxpayer against an overly benevolent public employer who might otherwise deal too leniently with unsatisfactory public employees. Thus, an agency head will be required to at least remove from the class an employee who has been given two 60-day evaluations without earning a satisfactory performance rating. Rule 22A-9.03(7). The agency head, however, is not limited to such sanction.

The order appealed is Reversed and, since the Commission has not yet heard this case on the merits as to whether there was just cause to dismiss appellee, the case is Remanded to the Commission for a hearing pursuant to Section 110.309, Florida Statutes.

MILLS and SMITH, JJ., concur.

      . We note that several of the provisions of Chapter 22A-9 have been amended effective July 1, 1984. We, of course, are not concerned with those amendments in this case.


author: MILLS, Judge.

text:
    STRICKLAND’S MAYPORT, INC. and B.J. Strickland, Jr., Appellants, v. KINGSLEY BANK, Appellee.
    No. AU-23.
    District Court of Appeal of Florida, First District.
    April 26, 1984.
    Rehearing Denied May 30, 1984.
    Barry L. Zisser of Zisser, Robison, Spohrer, Wilner & Harris, Jacksonville, for appellants.
    Sidney E. Lewis, Jacksonville, for appel-lee.
   MILLS, Judge.

Strickland appeals from a final judgment authorizing reposession of collateral. He contends the collateral, a 30,000 gallon aeration sewage treatment plant, became a fixture and thus was not subject to repossession. Because the evidence was sufficient for the trial court to find the plant remained personalty, we affirm.

Strickland needed a new sewage treatment plant for his restaurant. To finance its purchase, he entered into a ’security agreement with Kingsley Bank designating the plant as collateral. When Strickland failed to make several payments, the bank sought to replevy the plant. The trial court rejected the contention that the plant was a fixture, finding the bank entitled to repossession.

The record indicates the plant was installed on a lot across from the restaurant in a concrete trench approximately four feet deep. It was connected to the restaurant by a series of pipes. Strickland testified that he intended the plant to be a permanent accession to the realty.

In the leading case of Commercial Finance Co. v. Brooksville Hotel Co., 98 Fla. 410, 123 So. 814 (1929), the Florida Supreme Court set out a three-part test for determining whether an object is a fixture or personalty:

1. Is there actual annexation to the realty or something appurtenant thereto?

2. Is the item in question appropriately applied to the use or purpose of that part of the realty to which it is connected?

3. Did the party making the annexation intend the item to be a permanent accession to the freehold?

If the answer to these three questions is yes, the object is a fixture.

In this case, there is no question that the plant was actually annexed to the realty and that it was appropriately applied to the use of the restaurant. The critical issue is whether the third part of the three-part test was satisfied.

Whether the party making the annexation intended the item to be a permanent accession to the freehold is certainly an important consideration in determining whether an object is a fixture or personalty. Intent in this context, however, does not mean purely subjective intent but apparent intent considering the circumstances including the relationship of the parties to one another. See, United Bonding Insurance Co. v. Minichiello, 221 So.2d 220 (Fla. 1st DCA 1969). For this reason, Strickland’s testimony that he subjectively intended the plant to be a permanent accession to the realty was not conclusive evidence that the plant was indeed a fixture.

There was evidence that the plant was relatively portable. More importantly, Strickland knew at the time he annexed the plant to the realty that he had entered into a security agreement with the bank designating the plant as collateral.

Existence of a security agreement does not necessarily preclude characterization of an object as a fixture if other facts clearly indicate the annexor’s intent to make a permanent accession to the realty. Cf., Corbett v. Appliance Buyers Credit Corp., 172 So.2d 257 (Fla.3d DCA 1965). In this case, however, where the facts provide no such clear indication, the security agreement was strong evidence that Strickland did not intend for the plant to be a permanent accession to the realty.

Furthermore, we think it generally unfair for one to finance the purchase of an object by putting that object up as collateral, default on the loan, and then claim the object cannot be repossessed because it has become a fixture.

AFFIRMED.

SMITH and NIMMONS, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Richard A. MILLER, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. AU-414.
    District Court of Appeal of Florida, First District.
    April 26, 1984.

      Richard A. Miller, pro se.
    No appearance for appellee.
   ERVIN, Chief Judge.

Miller appeals from the denial of his motion for post conviction relief pursuant to Fla.R.Crim.P. 3.850. We affirm.

The trial court was correct in finding this court’s decision in Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980), decided after Miller’s convictions for attempted armed robbery and attempted kidnapping had been affirmed by this court on direct appeal, to be inapplicable. The law as it exists at the time of appellate review, and not at some later date, must be applied to pending cases. State, Department of Transportation v. Pan American Construction Company, 338 So.2d 1291, 1294 (Fla. 1st DCA 1976). Miller’s final point, that the trial court erred in directing the jury to reconsider what it found to be an inconsistent verdict, “could have been [or] should have been” raised on direct appeal and may therefore not be considered in a motion for post conviction relief. Christopher v. State, 416 So.2d 450, 452 (Fla.1982).

AFFIRMED.

THOMPSON and WIGGINTON, JJ., concur.


text:
    Raymond HUDNELL, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1135.
    District Court of Appeal of Florida, Third District.
    May 1, 1984.

      Bennett H. Brummer, Public Defender, Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Penny H. Brill, Julie Thornton, Asst. Attys. Gen., for ap-pellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The judgment of conviction for carrying a concealed firearm and the order of probation entered thereon are reversed and the cause is remanded to the trial court with directions to discharge the defendant from the cause. The trial court erred in denying the defendant’s pre-trial motion to suppress the firearm seized from the defendant’s person by the police. This weapon, we hold, was inadmissible in evidence because it constituted the fruit of an unreasonable search and seizure conducted in violation of the defendant’s rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution.

The arresting police officer testified below that she stopped the defendant herein as he was walking down the street late at night (11:55 P.M.) with a companion in a Miami warehouse area “curiously looking at the businesses in the area.” (Tr. 4). Plainly, this showing, without more, was insufficient to give rise to anything more than a bare suspicion of criminal activity, thereby rendering the stop and subsequent search of the defendant unreasonable within the meaning of the above constitutional provisions. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Mullins v. State, 366 So.2d 1162 (Fla.1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979); Freeman v. State, 433 So.2d 9 (Fla. 2d DCA 1983); Parker v. State, 363 So.2d 383 (Fla. 3d DCA 1978); Vollmer v. State, 337 So.2d 1024 (Fla. 2d DCA 1976), cert. discharged, 347 So.2d 432 (Fla.1977).

Reversed and remanded.

JORGENSON, J., concurs in the result.


text:
    Wells S. STECKEL and Anne Steckel Ratsey, Appellants, v. Emmett A. BROWN and Joel Eugene Brown, Appellees.
    No. 83-2746.
    District Court of Appeal of Florida, Third District.
    May 1, 1984.
    Rehearing Denied May 31, 1984.
    McDonald & McDonald and David McDonald, Miami, for appellants.
    Floyd, Pearson, Stewart, Richman, Greer, 'VVeil & Zack and Gerald Richman and Bertha Claire Lee and Charles H. Johnson, Miami, for appellees.

      Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

While the trial court correctly ruled that the plaintiffs-appellants had no viable claim based upon the face of the wills in question themselves, it plainly abused its discretion in denying their motion to amend the complaint with respect to their assertion that they were entitled to the imposition of a constructive trust upon assets of the defendant estate and in consequently entering summary judgment in its favor. Firestone Tire and Rubber Co. v. Thompson Aircraft Tire Corp., 353 So.2d 137 (Fla. 3d DCA 1977); Pasekoff v. Kaufman, 392 So.2d 971 (Fla. 3d DCA 1981). Accordingly, the judgment below is reversed and the cause remanded for further proceedings consistent herewith.


text:
    DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF WORKERS’ COMPENSATION and Gladys Suarez, Appellants, v. AMERICAN BUILDING MAINTENANCE and Allstate Insurance Company, Appellees.
    No. AC-343.
    District Court of Appeal of Florida, First District.
    May 2, 1984.
    Douglas P. Chanco, Tallahassee, for appellant/Department of Labor and Employment Security.
    Franklyn B. Glinn, Miami, for appellant/Gladys Suarez.
    Eugene Williams of Williams & Zientz, Coral Gables, for appellees.
   ON MOTION FOR REVIEW OF DENIAL OF MOTION TO TAX COSTS

PER CURIAM.

This ease is before us on a motion filed by the Department, pursuant to Rule 9.400(c), Fla.R.App.P., for review of the deputy commissioner’s order denying the Department's motion to tax costs. We reverse, and order costs of the appeal incurred by the claimant in Suarez v. American Building Maintenance, 412 So.2d 32 (Fla. 1st DCA 1982), to be paid by the employer/carrier.

Gladys Suarez, a claimant in a workers’ compensation proceeding, appealed an adverse order. Pursuant to Florida Workers’ Compensation Rules of Procedure, claimant filed a verified petition for relief from costs. The petition was granted in an order dated May 20, 1981, with the costs to be borne by the Workers’ Compensation Administrative Trust Fund. The record costs totaled $2,563.95.

This court found that the appeal was concerned primarily with alleged material errors in the deputy’s findings and reversed the order and remanded the cause for further proceedings. Suarez v. American Building Maintenance, supra. Following the issuance of this mandate, the Department of Labor and Employment Security moved for payment of costs to the Workers’ Compensation Administrative Trust Fund by the employer/carrier.

On June 30, 1982, the deputy commissioner entered an order in which he made new findings of fact, found the claimant’s condition to be unchanged, and again denied and dismissed claimant’s petition for modification. A Motion to Tax Costs was heard on February 25, 1983. Costs were denied by the deputy commissioner on the grounds that all benefits claimed were ultimately denied and the claimant was not the prevailing party as contemplated by Section 440.34(3), Florida Statutes.

The Department timely filed a notice of appeal. This court dismissed the appeal with directions to file a motion for review pursuant to Florida Rule of Appellate Procedure 9.400(c).

Costs are to be taxed to the prevailing party unless the court orders otherwise under Florida Rule of Appellate Procedure 9.400(a). If a claimant in a workers’ compensation proceeding “should prevail in any proceeding before a deputy commissioner or court,” costs are to be taxed against the employer. Section 440.34(3). In this case, the issue is solely one of taxation of appellate costs. In the appeal to this court, the claimant was the “prevailing party” in that her allegations as to the errors in the findings of fact were sustained and the order reversed. Tomorrow’s Choice, Inc. v. Bassing Company, Inc., 364 So.2d 530 (Fla. 3d DCA 1978) (counter-plaintiff who won a reversal was entitled to appellate costs even though on remand he still recovered no damages). Further, while the employer/carrier may have been successful when the deputy commissioner reconsidered the claim, this court recognized that the necessity for appellate proceedings was at least in part the responsibility of the employer/carrier. See, footnote 1, Suarez, at 33.

Appellee argues that Acosta Roofing Company v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981), controls the instant case. It is argued that Acosta stands for the proposition that errors, such as the ones complained of by appellants in the instant case, should be brought to the attention of the deputy commissioner by motion for rehearing or clarification before the order becomes final. There was no such motion in this cause. However, appellees’ reliance on Acosta is misplaced. In Acosta, this court affirmed an award of temporary disability benefits even though the deputy had inadvertently inserted an incorrect date on the order. The error was treated as inconsequential. It is clear that, in reversing the deputy’s first order in the instant case, this court found the errors present not to be “inconsequential.” Thus, Acosta is in-apposite.

Nor can it be said that the costs were “unnecessarily incurred” under “unusual circumstances.” The appeal of the first order was properly before this court, which reversed the order.

REVERSED.

MILLS, SMITH and ZEHMER, JJ., concur.


author: WENTWORTH, Judge.

text:
    GUST K. NEWBERG CONSTRUCTION CO. and Commercian Union Insurance Co., Appellants, v. Neil WARREN, Appellee.
    No. AU-118.
    District Court of Appeal of Florida, First District.
    May 2, 1984.
    Ronnie Klein Witlin, of Witlin & Witlin, Miami, for appellants.
    Gene Flinn, Miami, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeal a workers’ compensation order awarding temporary total disability, wage loss, and medical benefits. We affirm, finding no merit in a challenge of the factual predicate for the determination of good faith work search, or in the argument that the deputy could not award payment for chiropractic services found to have been necessary after carrier’s notice of deauthorization of the treating chiropractor and alternative offer limited to orthopedic physicians, during the four month period of temporary total disability after claimant fell from a 15 foot scaffold onto a concrete floor.

The order finds in pertinent part:

I find that the employer/carrier is responsible for the outstanding balance of the bill for Dr. Barry Burak’s services, in accordance with the fee schedule. These services were initially authorized by the employer/carrier but subsequently specifically de-authorized by them apparently without offer of alternative chiropractic treatment. The claimant sought the services of Dr. Burak apparently on an emergency basis initially (on a Sunday following an attempt to return to work), at which time he testified he was experiencing pain and “couldn’t move.” I find that the treatment furnished by Dr. Bu-rak subsequent to October 8, 1981 (the date his services were no longer authorized) was reasonable and necessary and required by claimant’s compensable injury. I further find that Dr. Burak did submit reports and bills to the carrier....

The issue here with respect to the medical award turns on the sufficiency of alternative care offered to claimant when the carrier served notice of deauthorization of claimant’s treating physician, Dr. Burak, who had been authorized “for emergency treatment.” The circumstances reflected by the record show that the carrier was adequately apprised of-claimant’s continuing request or need for chiropractic care, and, even if we should indulge such speculation, we find no indication that claimant would have rejected such care by anyone other than Dr. Burak. On the basic issue of whether the orthopedic physicians offered by carrier can be functionally differentiated from chiropractic service, this court has clearly recognized that distinction. Sears, Roebuck and Co. v. Viera, 440 So.2d 49 (Fla. 1st DCA 1983). The deputy was accordingly required in this case to resolve, and on the evidence before him did properly resolve, the factual question of whether chiropractic care was necessary at the time in question so as to permit award of the cost of such service obtained by claimant after the attempt at deauthorization.

Affirmed.

ZEHMER and BARFIELD, JJ., concur.

      . 440.13 Medical services and supplies; penalty for violations; limitations.—
      (1) As used in this section, the term:

      (b) “Health care provider" means a physician or any recognized practitioner, ...

      (f) "Physician” means a physician licensed under chapter 458, an osteopath licensed under chapter 459, a chiropractor licensed under chapter 460, a podiatrist licensed under chapter 461, an optometrist licensed under chapter 463, or a dentist licensed under chapter 466.

        (2) (a) ... the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance by a health care provider and for such period as the nature of the injury or the process of recovery may require,_Any list of health care providers developed by a carrier ... from which health care providers are selected to provide remedial treatment, care, and attendance shall include representation of each type of health care provider ... and shall not discriminate against any of the types of health care providers as a class.
      (b) If the employer fails to provide such treatment, care, and attendance after request by the injured employee, the employee may do so at the expense of the employer, the reasonableness and the necessity to be approved by a deputy commissioner. The employee shall not be entitled to recovery any amount personally expended for such treatment or service unless he has requested the employer to furnish the same and the employer has failed, refused, or neglected to do so or unless the nature of the injury required such treatment, nursing, and services and the employer or the superintendent or foreman thereof, having knowledge of such injury, has neglected to provide the same....
      Amendments effected in 1983 appear to be for clarification and not substantive departure from former requirements.

      . We construe the opinion in Pinellas County School Board v. Fly, 393 So.2d 610 (Fla. 1st DCA 1981), to preclude an award for, unauthorized care in that case because the provision for alternative care (by family practitioner and orthopedic physicians) was adequate where no issue was made as to lack of authorized chiropractic care and claimant’s request instead was for further care by a specific named practitioner ("his chiropractor”).


text:
    HERNANDO COUNTY BOARD OF COUNTY COMMISSIONERS and Auto-Owners Insurance Co., Appellants, v. Joseph GLEATON, Appellee.
    No. AU-371.
    District Court of Appeal of Florida, First District.
    May 2, 1984.

      Kurt Preston Hampp, of Jacobs, Robbins, Gaynor, Hampp, Burns, Cole & Shasteen, P.A., St. Petersburg, for appellants.
    Wendell' J. Kiser, of Akerman, Senterfitt & Eidson, Orlando, for appellee.
   PER CURIAM.

Review is sought of a workers’ compensation order wherein the deputy commissioner awarded attorney’s fees to claimant’s attorney for bad faith handling of the claim by employer/carrier. This record contains sufficient competent evidence to sustain the deputy commissioner’s opinion that in either April or June, 1981, claimant reached maximum medical improvement and at the same time the employer/carrier became knowledgeable of the permanent legal blindness caused to claimant's eye. The deputy’s opinion in the record and findings expressed in the order, although lacking in perfect clarity, are sufficient in this factual situation for our affirming his failure to designate-a maximum medical improvement date with the exactitude demanded by appellants. Concededly, the impairment benefits ultimately paid by appellants to claimant were made long past the time statutorily required by section 440.-15(3)(a)2. That determination along with employer/carrier’s other conduct is legally sufficient to find bad faith as a basis for the award of a fee to claimant’s attorney.

The other issues before us are found to be without merit and accordingly the deputy’s order is AFFIRMED.

WENTWORTH, WIGGINTON and BAR-FIELD, JJ., concur.


author: HERSEY, Judge.

text:
    TOWN OF LANTANA, Appellant, v. Dallas R. HOWARD, Appellee.
    No. 83-1258.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.

      Charles Musgrove and James M. Adams-of Adams & Musgrove, West Palm Beach, for appellant.
    Richard G. Lubin of Lubin, Hamill & Gomberg, P.A., West Palm Beach, for ap-pellee.
   HERSEY, Judge.

The Town of Lantana appeals from a final judgment finding its comprehensive zoning plan ordinance unconstitutional as applied to the property of Dallas R. Howard.

The final judgment contains extensive findings of fact and an analysis of the applicable zoning law. It does not, however, pinpoint the reason for the ordinance’s unconstitutionality as applied to the property in question.

A zoning ordinance enjoys a presumption of validity. Lambros, Inc. v. Town of Ocean Ridge, Florida, 392 So.2d 993 (Fla. 4th DCA 1981). We have previously recognized the extraordinary burden of proving the invalidity of zoning legislation enacted by a municipality. S.A. Healy Co. v. Town of Highland Beach, 355 So.2d 813 (Fla. 4th DCA 1978). To be balanced against the operation of this presumption, however, is the constitutional right of an owner to use his property unfettered by government regulation in the form of zoning ordinances where the zoning is not reasonably related to public health, morals, safety or welfare. Burritt v. Harris, 172 So.2d 820 (Fla.1965).

The landmark case of Davis v. Sails, 318 So.2d 214 (Fla. 1st DCA 1975), discusses the interrelationship between the tests which courts apply to determine whether a particular ordinance or its application infringes upon constitutional principles. The Davis court, through Chief Judge Boyer, defined the process in the following language:

The law is so well settled as to require no citations of authority that a city or county has the right and power, within the confines of applicable enabling statutes, to adopt zoning ordinances or regulations. Further, such zoning ordinances or regulations are, like other legislative acts, presumed valid. Two other rules or law, which sometimes become confused and intertwined, are the “substantial relationship rule”, and the “fairly debatable rule”. The substantial relationship rule is substantive law, and may be simply stated as follows: In order for a zoning ordinance or regulation to be valid, it must have come [sic] substantial relationship to the promotion of the public health, safety, morals or general welfare. When correctly applied, this rule is not in any manner modified by the fairly debatable rule. The latter rule, being a rule of procedure or application, may be simply stated as follows: If the application of a zoning classification to a specific parcel of property is reasonably subject to disagreement, that is, if its application is fairly debatable, then the application of the ordinance by the zoning authority should not be disturbed by the courts. Of course, it is always a matter for the court to determine whether a zoning authority acted reasonably or fairly or whether capriciously or arbitrarily. The fairly debatable rule applies to the application of the ordinance and does not modify the requirement that the ordinance itself and the application thereof must have a reasonable relationship to the health, safety, morals or general welfare.

318 So.2d at 217 (emphasis supplied).

Appellee’s property is bounded on the east by the waters of Lake Worth and on the north by single-family residential properties (with some duplexes apparently existing at the time of the adoption of the zoning ordinance and therefore grandfathered in). Single-family residential zoning under such circumstances clearly bears a reasonable relationship to the public health, morals, safety or general welfare. City of Hollywood v. Hollywood, Inc., 432 So.2d 1332 (Pla. 4th DCA), pet for rev. den., 441 So.2d 632 (Fla.1983). We find nothing in the final judgment to suggest that the trial court came to a different conclusion as to the substantive validity vel non of the zoning ordinance.

Apparently, the holding of the trial court is based upon a determination that application of single-family residence zoning to appellee’s property is not fairly debatable and that no reasonable basis exists to support the ordinance. That this was the foundation for the final judgment is illustrated by the trial court’s reliance on the case of Kugel v. Miami Beach, 206 So.2d 282 (Fla. 3d DCA), cert. denied, 212 So.2d 877 (Fla.1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 629, 21 L.Ed.2d 565 (1969). The question we must determine, then, is whether appellee is appropriately placed in Kugel’s shoes.

The Kugel court found that the following factors rendered the ordinance under attack in that case constitutionally infirm:

Appellants’ property has a 62V2 foot frontage on the west side of Meridian Avenue and 150 feet on the north side of 17 th Street, Miami Beach, Florida. When the present zoning classification was changed from single family to multiple family residence in 1952, the 17th Street neighborhood was quiet and relatively secluded. Since that time the City of Miami Beach has built a large auditorium and convention facility upon a neighboring land which is zoned for residential use. This complex is just east of appellants’ property. In addition, the City has closed Lincoln Road (16th Street), which was a main thoroughfare. The result is that 17th Street has become one of the main east-west thoroughfares in the City. Further, by a change in the zoning laws, the City has allowed a federal savings and loan association to build an office building on the corner immediately across Meridian Avenue from appellants’ property. The office building is on property zoned residential but is used for business. The changes in the area have resulted in a large concentration of non-residential activity in a residential area.

206 So.2d at 284.

Thus, in Kugel, a concrete jungle had enveloped the subject property, rendering residential use totally inappropriate. In the instant case, appellee maintains, and the trial court determined, that appellee’s property suffers from a similar encroachment by commercial uses.

Shortly after purchasing the lot in question in 1977, appellee built a home for $280,000. Within a few short months he placed the property on the market with an asking price of $395,000. The fact that, during the next three and one-half years, no purchaser was willing to give Mr. Howard a profit in excess of $100,000 is less than compelling evidence that the property is improperly zoned. Furthering his case, however, appellee points to three factors which he argues contribute to his inability to sell his property.

The first factor relied upon by appellee is the influx of traffic on North Lake Drive adjacent to the property. The evidence supports a finding of an increase in traffic during recent years. However, if increased traffic was sufficient in and of itself to require a change in zoning to a commercial use, then most residential zoning in south Florida would soon be relegated to the realm of the dinosaur. The population explosion is mirrored in the proliferation of motor vehicles, and this is particularly so in most of south Florida.

Second, appellee points out that adjacent property to the south of his is zoned residential “D” which permits a modicum of commercial development. While the trial court found that appellee was not aware of this zoning at the time that he purchased the lot, we are compelled by the record to conclude that the trial court fell into error on this point. The record mandates a finding that appellee was aware or was chargeable with knowledge of this zoning. In addition, the adjacent lot remains vacant so that its zoning represents only a spectre hovering in the background that may never materialize to appellee’s detriment.

Third, appellee complains that the Town of Lantana has allowed commercial establishments to be built on East Ocean Avenue, a main thoroughfare south of appel-lee’s property. The evidence supports a finding that a group of apartments were converted for use as small stores on property located on East Ocean Avenue, and that an alley runs behind these shops intersecting North Lake Drive in the vicinity of appellee’s property. We also note that the alley opens onto another street, so that traffic is not necessarily funneled onto North Lake Drive by the existence of those establishments and the location of the alley. Appellee further charges that a church near the alley, which conducts an on-going garage sale, creates additional traffic and parking problems. (There is no evidence that the church or its activities had their genesis subsequent to appellee’s acquisition of the subject property.) Appel-lee also argues that patrons of local bars located on East Ocean Boulevard and on U.S. Highway One create a trespassing problem for properties located on North Lake Drive.

Whether the above factors, taken together, directly contribute to appellee’s inability to sell the property at a profit is problematical. What is certain, however, is that while the factors relied upon by appel-lee and particularly those that we have recited here may constitute somewhat of a nuisance to a property owner, they do not constitute a sufficient basis for invalidating a zoning ordinance. Appellee’s case is a far cry from Kugel. The two eases, as well as the physical facts, are clearly distinguishable one from the other.

The limitation on the use of appel-lee’s property must constitute more than a prohibition against the highest and best use to be considered confiscatory. Broward County v. Capeletti Brothers, 375 So.2d 313 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 755 (Fla.1980); Town of Indiatlantic v. McNulty, 400 So.2d 1227 (Fla. 5th DCA 1981). Appellee failed to prove the ordinance precludes any reasonable use of his property.

Accordingly, finding the municipal zoning ordinance to be reasonably related to the promotion of the public health, morals, safety and general welfare, and that its application to appellee’s property is reasonable upon this record, we reverse the final judgment which found the ordinance unconstitutional as applied.

REVERSED.

LETTS and BERANEK, JJ., concur.


author: PER CURIAM. HERSEY, Judge,

text:
    Otilio MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 83-415.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Rehearing Denied May 30, 1984.

      Richard L. Jorandby, Public Defender, Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant challenges the denial of his motion for discharge, predicated upon a violation of the speedy trial rule, 3.191, Florida Rules of Criminal Procedure.

Rule 3.191(d)(2) provides that speedy trial time may be extended by order of court or upon stipulation, either written or announced to the court. The record in this cause reflects no court order or stipulation.

The State correctly points out that a waiver may be proved by other means. However, herein no contemporaneous record activity supports the trial judge’s recollection, as was the case in Redden v. State, 429 So.2d 99 (Fla. 2d DCA 1983), nor did the state present the testimony of the attorney who purportedly waived speedy trial on appellant’s behalf, see, Culver v. State, 416 So.2d 855 (Fla. 1st DCA 1982).

We hold that the State failed to present sufficient competent evidence to demonstrate that appellant, either in person or by counsel, waived speedy trial. Therefore, we reverse the trial court’s order denying appellant’s motion for discharge and remand this cause with instructions to enter an appropriate order discharging appellant.

REVERSED and REMANDED.

DELL and WALDEN, JJ., concur.

HERSEY, J., dissents with opinion.

HERSEY, Judge,

dissenting.

Appellant was charged with trafficking in cannabis in March of 1982 and the Public Defender's office was appointed to defend him in the criminal proceedings. Subsequently, he obtained private counsel, Miguel A. Orta, and the Public Defender’s office was permitted to withdraw. Negotiations toward a plea bargain were entered into between counsel, but they proved to be unproductive. Private counsel withdrew and the Public Defender’s office was again appointed to represent Mr. Martin. Shortly after the expiration of 180 days, a motion for discharge under Rule 3.191, Florida Rules of Criminal Procedure, was filed. At a subsequent hearing on that motion for discharge an Assistant State's Attorney represented to the court that prior to expiration of the speedy trial period appellant’s privately retained counsel, Miguel A. Orta, had agreed with the office of the State’s Attorney to waive speedy trial, indicating that counsel would so advise the trial court and would file a written waiver of speedy trial. Also at the hearing on the motion for discharge, the state presented the testimony of Ms. Righton, the trial court’s secretary, to the effect that Mr. Orta had, indeed, called her requesting that the trial court be advised that appellant was waiving speedy trial and would in due course file a written waiver. Obviously, no such written waiver was forthcoming. The trial court also stated on the record that he recalled being advised at the time by his secretary, Ms. Righton, of the nature of the telephone call concerning which she testified.

Rule 3.191(d)(2) provides that the speedy trial period may be extended by stipulation “announced to the court or signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced.”

That a stipulation for waiver of the speedy trial rule was entered into here is evidenced by the testimony of Ms. Righton, the trial court’s own recollection, and comments made on the record by an Assistant State’s Attorney. This is substantial, competent evidence to support a finding that such a stipulation was, in fact, agreed upon. If there was a burden to bring before the court the testimony of Miguel A. Orta, that burden reposed on the appellant, who offered not one whit of evidence to contradict the foregoing recital. We need not indulge any presumption, it being sufficient simply to note that the evidence was all in one direction.

Instructive on the matter of a reasonable interpretation of pertinent aspects of the speedy trial rule is the case of State v. Earnest, 265 So.2d 397 (Fla. 1st DCA 1972). The present case is even more compelling than Earnest, where there was some question as to whether the defendant had personally authorized the waiver of speedy trial. Here there is at least some indication that appellant was present in his attorney’s office when the telephone calls in question were made.

The second district’s conclusion in Redden v. State, 429 So.2d 99 (Fla. 2d DCA 1983) was not based on a finding that contemporaneous record activity supported the trial judge’s recollection. Rather, the court held that the speedy trial rule was not violated even though no transcript of any proceeding which involved a possible waiver had been made. Three facts were set out, with emphasis on the second fact: (1) the State Attorney asserted'the appellant requested the continuances; (2) the court put on the record his recollection that a continuance was granted upon application of the appellant; and (3) appellant’s attorney did not deny the truth of these statements. In the instant case the State Attorney and the judge’s secretary stated on the record that Martin’s first counsel waived speedy trial and the trial judge stated on the record that he recalled being so told by his secretary. Thus, I find this case to be in line with Redden.

The state is not required to prove beyond a reasonable doubt that the defendant waived speedy trial. Further, no Fifth Amendment rights are implicated by suggesting that appellant here had a duty to come forward with evidence, if any existed, to show the absence of a stipulation.

For the foregoing reasons, I respectfully dissent.


author: LEHAN, Judge.

text:
    John Bernard BRODUS, Appellant, v. STATE of Florida, Appellee.
    No. 82-2745.
    District Court of Appeal of Florida, Second District.
    May 2, 1984.

      Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

We affirm defendant’s conviction and probation sentence for possession of marijuana, a violation of section 893.13(1), (3), Florida Statutes (1981), except in the following respect.

One of the conditions of probation, condition 12, was that defendant “must not live with [a] member of [the] opposite sex that is not [a] relative unless written permission from the probation officer [is given].” Tests for the invalidity of a probation condition were stated in Rodriguez v. State, 378 So.2d 7, 9 (Fla. 2d DCA 1979), as follows:

[T]he constitutional rights of probationers are limited by conditions of probation which are desirable for the purpose of rehabilitation.... In determining whether a condition of probation is reasonably related to rehabilitation, we believe that a condition is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.

We strike the condition of probation because it falls within the foregoing criteria. The reasons why it is within criteria (1) and (3) seem evident.

As to criterion (2), the condition appears to relate to “conduct which is not in itself criminal.” Id. This court previously struck as overbroad a probation condition which prohibited the probationer from living with a member of the opposite sex unless married. Mays v. State, 349 So.2d 792 (Fla. 2d DCA 1977). Mays remanded for modification of the condition to allow the probationer to live with a female relative. By permitting the condition to prohibit probationer from living with a member of the opposite sex who is not a relative, Mays may appear to constitute support for the type of condition involved here. However, the fornication statute, section 798.03, Florida Statutes (1975), on which the Mays court relied in permitting the prohibition against living with a nonrelative member of the opposite sex, was declared unconstitutional two years later in Purvis v. State, 377 So.2d 674 (Fla.1979). Also, the condition does not permit a so-called “innocent roommate” situation in which two or more share a house and split the rent. Therefore, the condition of probation in the instant case relates to noncriminal conduct.

Accordingly, the probation condition in this case is invalid under the Rodriguez criteria. We remand for condition 12 to be stricken.

REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

DANAHY, A.C.J., and SCHOONOVER, J., concur.

      . Purvis found that section 798.03, Florida Statutes (1977), violated the constitutional equal protection guarantee by creating a gender-based classification which was not “substantially related to the achievement of an important governmental objective.” Id. at 676. The 1977 statute was the same as the 1975 statute on which the Mays court relied.


author: DAUKSCH, Judge.

text:
    Teresa Gayle CARWISE, Appellant/Cross Appellee, v. STATE of Florida, Appellee/Cross Appellant.
    No. 83-125.
    District Court of Appeal of Florida, Fifth District.
    May 3, 1984.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach for appellant/cross appel-lee.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee/cross appellant.
   DAUKSCH, Judge.

This is an appeal from an order revoking probation. Both the defendant and the state have appealed and the issue is whether the state attorney has the authority to refuse to represent the state’s interest at a probation violation hearing.

Appellant appeared before the court after an affidavit had been filed by her probation officer alleging she had violated conditions of her probation. At the onset of the hearing to determine whether she had violated her probation the assistant state attorney, for no reason shown in the record, declared “Pursuant to Article 5, Section 17 of the State Constitution and Florida Statute Chapter 27, the State enters a nol-pros as to the charge of violation of probation.”

We have reviewed the constitutional and statutory provisions mentioned and have considered the arguments in the brief as to why we should allow a state attorney to refuse to represent the state at a probation violation hearing and remain as unpersuaded as was the trial judge. For some reason the state attorney, and to á much lesser degree, the attorney general, feel a probation violation hearing is a prosecution for a crime. It is not; it is a violation of a court order hearing. The prosecution ended when the accused was found guilty and placed on probation by court order.

Section 27.02, Florida Statutes (1983) provides:

Duties before Court: The state attorney shall appear in the circuit and county courts within his judicial circuit and prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal, in which the state is a party, except as provided in chapters 39 and 959. The intake procedures of chapter 39 and 959 shall apply as provided in those chapters.

Once the state completes its prosecution and the court either adjudicates the defendant guilty or places her on probation without an adjudication of guilt the executive authority of the state, the state attorney, loses control over the matter. Of course the executive branch of government retains its pardon and parole jurisdiction, but that is not in the hands of the state’s attorneys, and those matters do not involve court proceedings.

Because the state is a party where probation violation matters are concerned and because the court hearing involves the taking of testimony and presentation of other evidence, it is clear the state attorney is the right one to represent the state’s interests and present the evidence at the hearing. It is essential that court orders be complied with, especially by those who have violated the law and are given the grace of probation, and it is equally important that the state attorney, the person charged by the citizens to represent their best interests, do his best to see to it that violators of court orders are brought to justice.

The orders of the trial court are affirmed.

AFFIRMED.

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