author: LETTS, Judge.

text:
    Theodore S. KONOVER, etc., et al., Appellants, v. Arthur HOCHMAN and Lorraine Hochman, his wife, Appellees.
    No. 82-1376.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 1983.

      Michael H. Weisser of Michael H. Weis-ser, P.A., North Miami Beach, for appellants.
    Robert A. Glassman of Law Offices of Robert A. Glassman, Miami, for appellees.
   LETTS, Judge.

The question presented is whether the jury correctly calculated a money verdict in favor of a new home buyer and against the seller builder. We conclude its calculations were incorrect. ■

As we view it, extensive treatment of this case will add nothing to the body of the law and we write sparingly only to explain our conclusion.

The warranty furnished by the seller specifically excluded driveways, walkways, patios and swimming pools. Yet the ver-diet included $2,000 to correct a pool system defect and $810 for the driveway. Both these amounts must be deducted.

The repair to the patio is more difficult to resolve, for, although patios were also excluded, the seller specifically agreed to reset tiles around the pool area which pool area is contained within the perimeter of the patio replaced. Nonetheless, the seller clearly did not intend to pay for the entire patio retiled by another company, nor did he agree to do so. We remand this patio item and direct the judge to also reduce the amount of the verdict as to this item, charging the seller only with any sums expended to “reset tiles around the pool” which have not already been paid.

Finally, as to interest on the purchase money mortgage, the seller is entitled to interest, from the date of the note, on any sums which remain owing to the seller after our instructions are carried out.

REVERSED IN PART AND REMANDED.

DOWNEY and HERSEY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carl Lorenzo BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 82-2165.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 1983.
    Richard L. Jorandby, Public Defender and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The State agrees with appellant that error was committed under the facts of this case in imposing a minimum mandatory sentence of three years. Overfelt v. State, 434 So.2d 945 (Fla. 4th DCA 1983). We reverse this aspect.

While we could simply affirm without prejudice to appellant’s right to apply for remedy via Florida Rule of Criminal Procedure 3.850 as suggested by the State, we think it would conserve attorney time and judicial effort to address the matter here now. Accordingly, we affirm appellant’s conviction and remand with instructions to vacate the three year mandatory minimum which was attached to appellant’s ten year sentence.

Affirmed in part; reversed in part, and remanded with instructions.

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


author: DOWNEY, Judge.

text:
    Billy Marshall HAGER, Appellant, v. STATE of Florida, Appellee.
    No. 82-2291.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 1983.
    Richard L. Jorandby, Public Defender, Ellen Morris and Richard Greene, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

This case involves the trial court’s refusal to allow appellant, Billy Marshall Hager, to adduce evidence of both the victim’s reputation for violence and specific acts of violence in support of his theory of self defense.

Hager was charged with and convicted of the first degree murder of his neighbor, David Leo Brown. On the day in question, Brown was jump-starting his motorcycle, a Harley Davidson Police Special. Apparently, Hager had called to the victim to quiet it down, and the victim cursed Hager and all the members of his family in a very obscene fashion. In addition, the victim grabbed the top of a fence between their property and began to shake it violently, jumping up and down and cursing Hager. The victim suggested they go out in the street and settle their difference. The victim also said he was going to stomp Hager’s ass into the sand. Hager was 61 years old, disabled and given to heavy drinking. The victim was 27 years of age and Hager knew him to be very agile. In addition, Hager knew the victim had a reputation for violence. Hag-er also had personal knowledge of specific violent acts. Becoming apprehensive about the cursing, fence shaking and threatening posture of the victim, Hager got a firearm from his house and went outside. Hager testified that when the victim saw him, he said, “Shoot me, you old son of a bitch,” and turned and started for Hager. Whereupon, Hager became frightened and, believing Brown was going to beat him, Hager shot and killed the victim.

During the trial Hager attempted to present witnesses to testify to the victim’s reputation for violence. In addition, he attempted to adduce proof of specific acts of violence. However, the trial court refused to allow him to introduce such evidence. Nevertheless, among the instructions that the jury received was one on justifiable homicide.

Lest the foregoing recitation of the evidence mislead, we hasten to add that there was other evidence that Hager had made prior threats to kill the victim and that the victim did not come toward Hager in a life threatening manner. However, Hager’s theory of the case was self defense and the excluded evidence tended to support that theory. Consequently, we think the trial court erred in excluding it.

Evidence of a deceased’s violent character is admissible when self defense is asserted if there is an issue as to either the conduct of the deceased or the reasonableness of the defendant’s belief as to imminent danger from the deceased. Garner v. State, 28 Fla. 113, 9 So. 835 (1891); Fine v. State, 70 Fla. 412, 70 So. 379 (1915); Copeland v. State, 41 Fla. 320, 26 So. 319 (1899); Williams v. State, 252 So.2d 243 (Fla. 4th DCA 1971).

Banks v. State, 351 So.2d 1071, 1072 (Fla. 4th DCA), cert. denied, 354 So.2d 986 (Fla. 1977). Before a defendant can adduce evidence of the victim’s violent character, he must lay an adequate predicate, i.e., showing that the circumstances of the homicide are such that they would tend to support a case of self defense.

An interesting analogy is found in Anderson v. State, 362 So.2d 361 (Fla. 4th DCA 1978), wherein this court said:

Appellant was indicted for murder in the First Degree and convicted of murder in the Second Degree after a jury trial. As tenuous as it might have been the appellant had a defense of justifiable homicide to present to the jury. She testified as to her acting in self defense, which, if sufficiently established, can permit the jury to acquit under the definition of justifiable homicide. After she testified the court ruled she could not present her witnesses as to the violent character and reputation of the deceased and she would not be permitted to have the jury charged on the law of justifiable homicide. It is noted, however, the court did charge the jury on justifiable homicide. It was error for the trial judge to on the one hand disallow the appellant from presenting her witnesses’ testimony about the character and propensities of the deceased and then charge the jury that it may consider evidence of the character of the deceased. The error was not the giving of the charge but the disallowing of the testimony. The judgment and sentence are reversed and the matter remanded for new trial. Palm v. State, 135 Fla. 258, 184 So. 881 (1938); Garner v. State, 28 Fla. 113, 9 So. 835 (1891); Banks v. State, 351 So.2d 1071 (Fla. 4th DCA 1977); Coker v. State, 212 So.2d 648 (Fla. 1 DCA 1968); Cole v. State, 193 So.2d 47 (Fla. 1 DCA 1966).

If the jury believed Hager’s evidence concerning the victim’s allegedly violent reputation and specific violent acts, it might have looked favorably upon his version of the incident and found the homicide justifiable. Alternatively, the jury could have discounted the excluded evidence and found him guilty. In any event a sufficient predicate was established to make the proffered evidence admissible.

For the foregoing reasons we are compelled to reverse both the judgment of conviction and sentence and remand the cause to the trial court for a new trial.

REVERSED AND REMANDED with directions.

LETTS and HERSEY, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Carl John CHERRY, Appellant, v. STATE of Florida, Appellee.
    No. 82-2365.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 1983.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a subsequently imposed sentence of five years which was imposed after appellant had begun serving a previously imposed sentence of three years. We hold that the trial court could not vacate the previous, legal sentence and remand for reinstatement of that sentence.

Trafficking in cocaine, in the amount found in Section 893.135(l)(b)(3), Florida Statutes (1981), carries a minimum mandatory sentence of fifteen years imprisonment and a fine. Appellant was charged under this section, and appeared before the trial court on July 1, 1982, to enter a plea. At this first hearing, the state attorney indicated that because of his discussion with police, he would be filing a petition under Section 893.135(3), Florida Statutes (1981), asking the court to reduce the statutory minimum in Cherry’s case because of substantial assistance to police. Later proceedings indicate that he did make the motion. The state attorney’s recommendation at that time was a five year sentence, but with the possibility of reduction if the defendant rendered additional assistance. Appellant pled guilty, a plea apparently conditioned upon the state’s petition under Section 893.-135(3). The trial judge deferred sentencing to allow the appellant to attempt to render more assistance, thereby reducing his sentence further. The sentencing hearing which was to have occurred on September 9, 1982, was again deferred because Cherry failed to appear. The next proceedings of record were held October 26, 1982, when appellant surrendered himself for sentencing. Appellant was heard in mitigation of his sentence, and mentioned several unsuccessful attempts to assist law enforcement officials. The trial court, apparently responding to the effort, imposed a three-year sentence instead of the five years previously discussed. Appellant was then fingerprinted and began serving his sentence.

On November 2,1982, after appellant had been serving his sentence for eight days, the trial court held a hearing on the state attorney’s motion to correct sentence. The assistant state attorney reminded the trial judge of the September 9 hearing, during which, he claimed, the judge had said he was “inclined” to give appellant five years. These words are not found in the record of the September 9 hearing. The court thereupon found that there had been an agreed plea which was contravened by his mistake, and granted the motion to set the sentence aside. He then imposed a five year sentence upon appellant.

Florida Rule of Criminal Procedure 3.800(a) permits a court to correct an illegal sentence at any time. Complementary Florida Rule of Criminal Procedure 3.800(b) allows revision of a legal sentence, but only insofar as it reduces the sentence. The prosecutor’s motion to correct the sentence was based on subsection (a) pertaining to illegal sentences. Evidently, the claimed illegality lay in the judge’s failure to follow the agreement supposed to have been made on September 9. Additionally, the state attorney objected to his lack of notice and participation in the sentencing hearing.

A trial judge is not bound by any “inclination” in earlier proceedings, given the fact that the sentence is not final until the sentencing hearing ends, at the earliest, Farber v. State, 409 So.2d 71 (Fla. 3d DCA 1982). This fact is particularly true where, as here, the defendant’s sentence was uncertain pending a decision regarding the amount of substantial assistance rendered. Nor does the state attorney’s lack of notice render the first sentence vulnerable. In Troupe v. Rowe, 283 So.2d 857 (Fla.1973), one assistant state attorney had participated in sentencing and had accepted the finding of guilt and the sentence. The Troupe court did not permit another assistant state attorney to come in and set aside the finding for an adjudication. In support, the court quoted Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971):

The staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know what the right hand is doing’ or has done. That the breach of agreement was inadvertent does not lessen its impact.

283 So.2d at 860 (footnote omitted).

Not suggested at the hearing, but suggested in appellee’s brief, is the argument that the three year sentence was illegal because the judge did not follow the prosecutor’s recommendation. Although, as appellee suggests, the prosecutor’s opinion regarding the assistance provided and suggested sentence is important, the trial judge has the final decision on sentencing. State v. Benitez, 395 So.2d 514, 519 (Fla.1981). Indeed, removal of this decision to the prosecutor’s sphere would violate the Florida constitution’s concept of separation of powers. Id. The participation of the state attorney is legally required under the statutory scheme under which defendant was charged, for a court may not reduce the statutory minimum sua sponte, State v. Taylor, 411 So.2d 993 (Fla. 4th DCA 1982). As the prosecutor realized, however, once a petition for reduction of the minimum has been filed under Section 893.135(3), the sentence is in the trial court’s discretion. Benitez, 395 So.2d at 519. That the petition was made on July 1, 1982, was admitted by the prosecutor at the November 2, 1982, motion to correct sentence. The statutory minimum having been properly eliminated, and the trial judge’s discretion having been properly exercised, the original sentence was legal. The Rules of Criminal Procedure did not therefore authorize a motion to increase the sentence.

In addition to lacking authority under the Florida Rules, an increase of a lawful sentence is expressly prohibited by Florida case law, grounded on the double jeopardy clause of the fifth amendment to the United States Constitution. See, e.g., Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Royal v. State, 389 So.2d 696 (Fla. 2d DCA 1980); Gonzalez v. State, 384 So.2d 57 (Fla. 4th DCA 1980); Andrews v. State, 357 So.2d 489 (Fla. 1st DCA 1978); Flowers v. State, 351 So.2d 387 (Fla. 1st DCA 1977); Katz v. State, 335 So.2d 608 (Fla. 2d DCA 1976). The few instances where the increase has been upheld include Rizzo v. State, 430 So.2d 488 (Fla. 1st DCA 1983), where the judge was allowed to correct a slip of the tongue, even though it meant an enhanced sentence. In Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981), the original sentence was set aside because of a material mistake of law; and Farber v. State, 409 So.2d 71 (Fla. 3d DCA 1982) permitted an increased sentence where the addition occurred before the end of the sentencing hearing. None of these fact patterns is present here, so the general rule forbidding sentence increases must prevail.

HURLEY and WALDEN, JJ., concur.


text:
    Michael SHOOSTER, Appellant, v. Mark GELFAND and Karen Gelfand, Appellees.
    No. 83-152.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 1983.

      Alan E. Fallik of Jacobson & Gottlieb, Hollywood, for appellant.
    No appearance for appellees.
   GLICKSTEIN, Judge.

Appellant sued on a promissory note and notice of the suit was properly given appel-lees, who neither filed an answer nor made any other appearance in response. The clerk entered defaults against both appel-lees and the trial court thereafter entered a final judgment. In order to satisfy the judgment, appellant sought post-judgment discovery pursuant to Florida Rules Civil Procedure 1.560, by use of interrogatory. When appellees refused to answer the interrogatory, appellant moved to compel a response. The appeal is from the order denying appellant’s motion.

The issue is whether the trial court erred in refusing to grant appellant’s motion compelling appellee’s response to post-judgment discovery because the judgment was rendered following a default. We hold that it did, and we reverse and remand.

While there does not appear to be any precedent in Florida on the issue of post-judgment discovery following a default judgment, that provision of Florida Rules of Civil Procedure 1.560 which authorizes discovery after final judgment is substantially identical to Federal Rules of Civil Procedure 69(a). There is authority proposing the use of federal court decisions to illuminate state rules of civil procedure where the two rules are substantially identical. Carson v. City of Fort Lauderdale, 173 So.2d 743, 744 (Fla. 2d DCA 1965).

There are federal cases which shed light on this issue. It was directly raised in United States v. Earl Phillips Coal Co., 66 F.R.D. 101 (E.D.Tenn.1975), involving a final default judgment entered after the defendant filed nothing and made no appearance. The court held specifically that the federal government was entitled to obtain discovery upon the judgment rendered after default, the discovery contemplated being in the form of interrogatory. 66 F.R.D. at 102. Similarly, McElveen v. Carib Inn International, Inc., 71 F.R.D. 193 (S.D.Tex. 1976), granted a motion to compel a defendant to answer an interrogatory submitted on post-judgment discovery when the final judgment had been entered after defendant’s default. A final example of the use of discovery after final judgment on a defaulting party is found in Baker v. Limber, 647 F.2d 912 (9th Cir.1981). The current issue is tangential to the Baker decision, which rejected a fifth amendment claim by which defendant sought to avoid the discovery, but the implication is clear. In short, the federal cases, both directly and by implication, authorize use of post-judgment discovery after a final judgment is gained by default, and we see no logical reason not to follow their lead.

HURLEY and WALDEN, JJ., concur.


text:
    Robert Randolph PAYNE, Petitioner, v. The CIRCUIT COURT FOR the FIFTEENTH JUDICIAL CIRCUIT In and For PALM BEACH COUNTY, Florida and Louie Wainwright, Secretary Department of Offender Rehabilitation, Respondents.
    No. 83-1718.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 1983.

      Robert Randolph Payne, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for respondents.
   PER CURIAM.

Petitioner seeks a writ of mandamus to compel the trial court to grant him credit for time served in the Floyd County Jail in Rome, Georgia. In support of his claim, petitioner has proffered a letter on official stationery from the records custodian of the Floyd County Jail indicating that the petitioner “was incarcerated in the Floyd Co. Jail, Rome, Ga. for Palm Beach Co., Fl. from 8-13-79 until 9-1-79, when he was released to Palm Beach Co., FI.” (Emphasis supplied.)

Section 921.161(1), Florida Statutes (1981), requires that a defendant be given credit for time spent in the county jail prior to the imposition of sentence. Osteen v. State, 406 So.2d 1239 (Fla. 2d DCA 1981) and Zulla v. State, 404 So.2d 202 (Fla. 2d DCA 1981), hold that where properly documented, credit for all time spent in foreign jails should be given.

Accordingly, we remand to the trial court for resentencing, with instructions that if necessary, an evidentiary hearing be conducted to resolve any challenge raised to the validity of the documentation offered in support of petitioner’s claim.

LETTS, BERANEK and HURLEY, JJ., concur.


author: OTT, Chief Judge.

text:
    Stephen Francis GURCHICK, Appellant, v. STATE of Florida, Appellee.
    No. 83-1551.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1983.
   OTT, Chief Judge.

Stephen Francis Gurchick appeals the trial court’s summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

In point one of the motion, appellant alleged that he was sentenced without legal counsel present and without an effective waiver of his right to counsel.

A review of the sentencing transcript reveals the following conversation between the court and appellant:

THE COURT: You are here for sentencing today, Mr. Gurchick. Your attorney is not here. Do you want him here?
THE DEFENDANT: I don’t believe it would affect it, Your Honor.

Appellant’s sentence must be vacated, because the trial court failed to advise appellant of his right to counsel at this critical stage of the criminal proceeding and failed to ascertain whether the implicit waiver of counsel was knowing and intelligent. See Williams v. State, 427 So.2d 768 (Fla. 2d DCA 1988); James v. State, 428 So.2d 706 (Fla. 2d DCA 1983); Mullins v. State, 438 So.2d 908 (Fla. 2d DCA 1983); Morgano v. State, 439 So.2d 924 (Fla. 2d DCA 1983).

The record discloses that the two' remaining allegations of error in appellant’s motion are without merit. Accordingly, we VACATE appellant’s sentence and REMAND for resentencing. Therefore, appellant is entitled to be represented by legal counsel unless he affirmatively, voluntarily, and intelligently waives the right.

RYDER and LEHAN, JJ., concur.

      . In Gurchick v. State, 428 So.2d 738 (Fla. 2d DCA 1983), this court reversed the trial court’s summary denial of appellant’s motion, based on the trial court’s failure to conduct an eviden-tiary hearing or attach relevant portions of the record which refuted the allegations contained in the motion. On remand, the trial court summarily denied appellant’s motion for postcon-viction relief and attached relevant portions of the record to the order.


text:
    STATE of Florida, Appellant, v. Paul Dennis SALVAIL, Appellee.
    No. 82-956.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellant.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellee.
   PER CURIAM.

REVERSED on authority of State v. Hicks, 421 So.2d 510 (Fla.1982).

DAUKSCH, COBB and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: DAUKSCH, Judge.

text:
    Herbert C. BURNS, III, Appellant, v. THREE OF A KIND, INC., a Florida Corporation, Appellee.
    No. 82-1712.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 1983.
    Jack B. Nichols of Jack B. Nichols, P.A., Orlando, for appellant.
    E. Peyton Hodges of Cameron, Marriott, Walsh & Hodges, P.A., Orlando, for appel-lee.
    Sammy Cacciatore of Nance, Cacciatore & Sisserson, Melbourne, for The Academy of Florida Trial Lawyers as amicus curiae.
   DAUKSCH, Judge.

This is an appeal from a summary judgment in a personal injury case. The judgment was entered based essentially on the pleadings. We reverse.

Appellant sued appellee and alleged ap-pellee owns a bar and served alcohol to a person who appeared to be a minor and was a minor. Appellant said appellee knew or should have known the person was a minor. It is also alleged that the alcohol caused the minor to become intoxicated and impaired to the extent he could not safely operate a car. Appellant also alleged appellee knew or should have known the minor would drive the car after being served the alcohol. Appellant finally alleges that as a result of appellee having unlawfully sold the alcoholic beverages to the minor that the minor injured appellant when he ran a red light and collided with appellant’s car.

Section 768.125, Florida Statutes (1981) was in effect at the time the injury occurred and that statute says a person who furnishes alcohol to a minor may be liable to anyone suffering injuries as a result of the intoxication of the minor. Based upon this statute and in consideration of the allegations in the complaint we must conclude that it was error to enter the summary judgment. See Stevens v. Jefferson, 436 So.2d 33 (Fla.1983); Willis v. Strickland, 436 So.2d 1011 (Fla. 5th DCA 1983); Fitzer v. Forlaw, 435 So.2d 839 (Fla. 4th DCA 1983); Barber v. Jensen, 428 So.2d 770 (Fla. 4th DCA 1983); Migliore v. Crown Liquors of Broward, Inc., 425 So.2d 20 (Fla. 4th DCA 1982); Burson v. Gate Petroleum Co., 401 So.2d 922 (Fla. 5th DCA 1981).

REVERSED and REMANDED.

ORFINGER, C.J., and COWART, J., concur.

      . Section 768.125, Florida Statutes (1981) provides:
      A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.


author: SHARP, Judge.

text:
    Ruth STEIN, Petitioner, v. James HUBBS and Bonnie Hubbs, Respondents.
    No. 82-1774.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 1983.
    Karen M.P. Thompson, of Bross, Tracht-man & Henderson, P.A., Indialantic, for petitioner.
    No appearance for respondents.
   SHARP, Judge.

Stein petitions this court to issue a writ of certiorari to the circuit court requiring it to reverse its affirmance of the judgment of the county court. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(B) to accept for review cases from the county courts which have been appealed to the circuit court, if we find a serious legal error has been made which has resulted in a miscarriage of justice. Combs v. State, 436 So.2d 93 (Fla. 1983). Accordingly, we accept the petition and quash the opinion of the circuit court.

The issue in this case is whether it is necessary to serve a tenant with both a five day and a twenty day summons in a proceeding brought pursuant to section 83.625, Florida Statutes (1981), in order to obtain a judgment which both evicts the tenant and awards money damages for past due rent. The county court entered a judgment for eviction and costs, but refused to enter a judgment for damages. The circuit court affirmed on the ground that only a five day summons was served on the tenants, and two summonses were required. We disagree.

In this case Ruth Stein and James and Bonnie Hubbs entered into an oral residential lease agreement with Stein as landlord, and Mr. and Mrs. Hubbs as tenants. On February 15, 1982, Stein served Mr. and Mrs. Hubbs with a three day notice, demanding that they pay the past due rent or a suit for eviction and damages would be filed. On March 4, 1982, Stein filed a two count complaint seeking eviction in Count I and damages in Count II. Two summonses were issued and served on James Hubbs on March 4, 1982, both as personal service for James Hubbs and substituted service for Bonnie Hubbs, requiring them to file an answer and appear and defend within five days. The Hubbses failed to appear or defend at any time during the course of the proceedings.

On March 15,1982, a “Final Judgment of Eviction” was entered against Mr. and Mrs. Hubbs. When a writ of possession was served by posting on March 19, 1982, the Hubbs had already vacated the premises and left no forwarding address. On March 26, 1982, twenty-one days after service of process on the Hubbses, Stein filed a motion for default on the damage count of her complaint, which was entered by the clerk. On April 16, 1982, Stein moved for entry of the final judgment.

Section 83.625 provides:

Power to award possession and enter money judgment. — In an action by the landlord for possession of a dwelling unit based upon non-payment of rent, if the court finds the rent is due, owing, and unpaid and by reason thereof the landlord is entitled to possession of the premises, the court, in addition to awarding possession of the premises to the landlord, shall also direct, in an amount which is within his jurisdictional limitations, the entry of a money judgment in favor of the landlord and against the tenant for the amount of money found due, owing and unpaid by the tenant to the landlord, with costs. However, no money judgment shall be entered unless ... [certain conditions not applicable here]; and said money judgment shall not be entered earlier than the day following the expiration of the time period within which the tenant defendant would be required to file an answer or otherwise appear, were the proceeding solely an action at law to recover money damages.

This statute clearly contemplates that a landlord may combine a suit for eviction with one for damages (past due rent), and obtain one judgment for both remedies. The problem arises in calculating answer times for such combined suits.

A landlord solely seeking eviction of a tenant may, pursuant to section 83.59(2), Florida Statutes (1981), use the summary procedure provided in section 51.011, Florida Statutes (1981), under which defenses must be served within five days. But the Summary Rules are not made applicable to suits for damages (past due rent), and therefore the general provision in Florida Rule of Civil Procedure 1.140(a) controls. It allows a defendant twenty days in which to answer the pleading.

In this case, although a five day summons was served on the Hubbs, Stein did not seek a default judgment until after twenty days following service of process; and Stein’s motion for final judgment was filed forty-two days after service of process. The only limitation on money judgments in section 83.625 applicable in this case is that they cannot be entered earlier than twenty days after service of process. It says nothing about requiring two separate summonses for a complaint which combines the two remedies, nor does it require that a defendant be expressly notified of the time or times within which to answer a complaint. It would be duplicative of court time and costs to require service of both a five day and a twenty day summons in such cases.

We hold that a five day summons is adequate in such combined remedy suits, but that no default or final judgment on damages can be sought prior to the lapse of twenty days after service of process. During that time period, any defense filed by the tenant would be timely on the damage count. Accordingly, the circuit court opinion is quashed and this case is remanded to the county court to enter a judgment consistent with this opinion.

PETITION FOR CERTIORARI GRANTED; OPINION BELOW QUASHED; REMANDED.

      . Both summonses contained the following language:
      You are therefore commanded to summon the said defendant(s), and all those claiming by, through or under him to forthwith remove themselves and all other persons living at said premises, within five (5) days after service of this summons upon you, exclusive of the day of service, Saturdays, Sundays, and legal holidays, or to file the original of said written defenses with the Clerk of said Court either before service on plaintiff(s) or plaintiffs attorney or immediately thereafter. If the defendant(s) fail(s) to do so, a default will be entered against the defendant(s) for the relief demanded in the complaint.

      . As noted above, Stein did not seek a default or a final judgment on money damages until after the twenty day period.

      . We do not reach the question of whether a defendant might not have a right to set aside a judgment if he could show he was misled and harmed by an erroneous time notice in a summons. This problem could easily be avoided by adding an addendum to the five day summons informing the defendant he has twenty days in which to answer the money damage count.


text:
    James Carter WOOTTON, et ux., Appellants, v. Michael M. MATHESON, et ux., Appellees.
    No. 83-88.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 1983.
    Sid C. Peterson, Jr., of Deloach & Peterson, P.A., New Smyrna Beach, for appellants.
    Robert F. Vason, Jr., of Potter & Vason, Mount Dora, for appellees.
   PER CURIAM.

Under the circumstances of this case we find no abuse in the exercise of the equitable discretion of the trial judge in denying acceleration and foreclosure and attorney’s fees. Obviously the trial judge concluded that the security for the mortgage indebtedness had not been impaired or put in jeopardy and that acceleration and foreclosure would be unconscionable in this instance. See Brady v. Edgar, 415 So.2d 141 (Fla. 5th DCA 1982), and Consol. Credit Properties v. National Bank, 420 So.2d 618 (Fla. 5th DCA 1982).

AFFIRMED.

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


text:
    Dexter HINTON, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-1892, 82-1895 and 82-1896.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1983.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Dexter Hinton appeals from plea-based convictions of burglary with an assault and two counts of robbery.

Prior to sentencing, defendant moved to withdraw his pleas. Defendant offered no reasons in support of this motion. We find no error in the lower court’s denial of appellant’s motion to withdraw the pleas. See Baker v. State, 408 So.2d 686, 687 (Fla. 2d DCA 1982).

In this appeal, appellant contends that the pleas were improperly taken and should have been withdrawn because insufficient factual bases were presented and he was not informed of the correct maximum potential sentence on the burglary charge. These issues raise errors allegedly occurring contemporaneously with entry of the pleas and, as such, are not subject to direct appeal in the absence of an appropriate motion to withdraw the pleas filed in the lower court. See Robinson v. State, 373 So.2d 898 (Fla.1979), and Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

Appellant argues that certain conditions of his probation are improper. We agree that standard condition 4, prohibiting the possession, carrying, or use of weapons or firearms without prior consent of his probation officer, should be stricken since appellant is a convicted felon. See Smith v. State, 396 So.2d 206 (Fla. 2d DCA 1981). However, we find no merit to the remaining objections to the other conditions of probation.

Accordingly, condition 4 is hereby STRICKEN. In all other respects, appellant’s convictions, sentences, and conditions of probation as amended are AFFIRMED.

BOARDMAN and SCHEB, JJ., concur.


author: LEHAN, Judge.

text:
    Barbara ARMSTRONG and Donald E. Armstrong, Sr., Appellants, v. MUNFORD, INC., Appellee.
    No. 83-643.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1983.
    J. Bruce Harper of Robinson, MacPher-son, Harper, Kynes, Batt, Geller & Watson, P.A., Clearwater, for appellants.
    H. Vance Smith and Ted R. Manry, III, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   LEHAN, Judge.

This is a personal injury action against a vendor of alcoholic beverages arising out of an automobile accident. The Arm-strongs, appellants, claim that appellee sold alcoholic beverages (beer) to a minor who consumed the beer and then caused the accident which injured Mrs. Armstrong. This case involves provisions of section 562.-ll(l)(a), Florida Statutes (1981), which read:

It is unlawful for any person to sell, give, serve, or permit to be served alcoholic beverages to a person under 19 years of age. .. . Anyone convicted of violation of the provisions hereof shall be guilty of a misdemeanor of the second degree punishable as provided in S. 775.082 or S. 775.083,

and provisions of section 768.125, Florida Statutes (1981), which read:

A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age ... may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

The appellants’ complaint alleged a cause of action under only section 562.11(l)(a) and not under section 768.125, although the latter statute was in effect at the time of the accident. The trial court granted appellee’s motion for summary judgment on the authority of Migliore v. Crown Liquors of Broward, Inc., 425 So.2d 20 (Fla. 4th DCA 1982), cert. granted, (No. 63,337, 1983), which held that a vendor who sells alcoholic beverages to a minor in violation of section 562.11 is not liable to third persons injured by the intoxicated minor’s operation of a motor vehicle. See also Barber v. Jensen, 428 So.2d 770 (Fla. 4th DCA 1983), cert. granted (No. 63,598, 1983), in which the Fourth District Court of Appeal certified the question of whether, prior to the effective date of section 768.125, a third party had a cause of action against a person who furnished alcoholic beverages to a minor in violation of section 562.11.

We affirm. By enacting section 768.125, the legislature established the requisites of a cause of action by an injured third person arising out of circumstances which are vio-lative of section 562.11(l)(a). Section 768.-125 requires that the selling or furnishing of the alcoholic beverage must be done “willfully.” In this case there were neither allegations nor proof of a willful sale by appellee of alcoholic beverages to a minor.

Appellants argue that they stated a cause of action under section 562.11(l)(a) by merely alleging a violation of that statute, citing Prevatt v. McClennan, 201 So.2d 780 (Fla. 2d DCA 1967). However, Prevatt was decided before the enactment of section 768.-125.

We certify the following question to the Florida Supreme Court as being of great public importance:

Does a third party have a cause of action against the dispenser of alcoholic beverages for injuries caused by a minor when the alcoholic beverages were furnished in violation of section 562.11(l)(a), Florida Statutes (1981), notwithstanding the enactment of section 768.125, Florida Statutes (1981).

AFFIRMED.

HOBSON, A.C.J., and SCHEB, J., concur.


text:
    James Charles HILL, Appellant, v. STATE of Florida, Appellee.
    No. 83-911.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1983.

      Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, James Charles Hill, raises two points on appeal which we find have merit. First, appellant challenges the revocation of his probation based on his violation of conditions two and four. Secondly, appellant appeals the trial court’s failure to credit him with jail time served on the charges which formed the basis of his revocation. We affirm the probation revocation, but remand for elimination of conditions two and four.

The record indicates that the state moved and the court accepted the dismissal of those violations. Therefore, we remand this case to the trial court to correct the judgment finding appellant in violation of conditions two and four of his probation. Further, we remand for examination of the record to determine if appellant was incarcerated for these charges. If so, appellant must be given credit for time served.

Accordingly, we remand with instructions that the court eliminate the violation of conditions two and four, and credit appellant with any jail time served. In all other respects, we affirm.

Affirmed and remanded with instructions.

HOBSON, A.C.J., and GRIMES and CAMPBELL, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Henry B. DIAZ, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-1542.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1983.
   HOBSON, Acting Chief Judge.

Henry B. Diaz, Jr. appeals an order summarily denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. We reverse and remand.

Appellant was charged with aggravated battery to which he pled guilty. The sole meritorious point alleged in appellant’s Rule 3.850 motion is that his guilty plea was involuntarily entered in that the trial court purportedly failed to inform him that in so doing appellant had waived his right to appeal. Such claim, if true, might entitle appellant to relief. See Fla.R.Crim.P. 3.172(c)(iv). The trial court, however, failed to conduct an evidentiary hearing or to attach the portion of the record which conclusively refutes appellant’s allegations.

Accordingly, we reverse the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion, and attach to its order those portions of the record which conclusively show that appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the allegations raised in appellant’s motion. See Fla.R.Crim.P. 3.850; Halpin v. State, 428 So.2d 703 (Fla. 2d DCA 1983); Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982). To obtain further review in this cause, either aggrieved party must appeal the new ruling of the trial court.

REVERSED and REMANDED.

GRIMES and CAMPBELL, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    Roger THOMPSON, Petitioner, v. GENERAL MOTORS CORPORATION, INC., a foreign corporation, and Val Ward Cadillac, Inc., a Florida corporation, Respondents.
    No. 83-2245.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1983.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, Miami, and Michael R. Glickstein, North Miami Beach, for petitioner.

      E. Thom Rumberger and Michael R. Le-vin of Rumberger, Kirk, Caldwell, Cabaniss & Burke, Orlando, for respondent General Motors Corp.
    Ronald L. Napier, Naples, for respondent Yal Ward Cadillac.
   GRIMES, Acting Chief Judge.

This is a petition for certiorari to review an order denying a motion for continuance of the trial.

Petitioner is suing respondents for damages arising out of an automobile accident. The trial has already been postponed twice upon stipulation. Each party has been represented by at least two different lawyers. On October 20, 1983, petitioner’s counsel, Michael R. Glickstein, who is a single practitioner, filed a motion for continuance of the trial scheduled for November 1, 1983, on grounds of his ill health. He attached to his motion a letter from his doctor reciting that he had been under the doctor’s care since August 12, 1983, for possible cardiovascular complications. The doctor stated that on October 18, 1983, he was called to the hospital emergency room to examine Glickstein for extreme pain in the upper abdomen. At that time Glickstein exhibited a suggestively abnormal EKG. The doctor later ruled out a myocardial infarction but indicated that there was evidence that his patient had coronary disease. The doctor expressed the opinion that for Glickstein to undergo the concentrated stress of conducting a trial at this time “represents a significant medical risk to his health.” He recommended that Glickstein not become engaged in stressful activities for at least four months.

At the hearing held on October 24, 1983, the court recognized the need to conclude this protracted litigation. Nevertheless, the court at first indicated its intention to grant the continuance. At this point a court reporter entered the room and stated that the tape containing her stenographic notes of petitioner’s recently taken supplementary deposition had been stolen. She stated that she had left her notes in the room occupied by petitioner and his counsel and that upon her return the notes were gone. Mr. Glickstein vehemently denied taking the notes. The court then reconsidered the question of continuance, and after noting that his initial decision to continue the case was close, stated that “this sort of thing tips the scale.” The order denying continuance referred to a telephone conversation between the judge and Glickstein’s doctor in which the doctor’s statements concerning counsel’s health were said to be “substantially in accord with his letter.”

The trial court has broad discretion in granting or denying a continuance. Edwards v. Pratt, 335 So.2d 597 (Fla. 3d DCA 1976); Williams v. Gunn, 279 So.2d 69 (Fla. 1st DCA 1973). Yet, there are instances in which a trial court’s denial of a motion for continuance may be an abuse of discretion. In Courtney v. Central Trust Co., 112 Fla. 298, 150 So. 276 (1933), the supreme court held that it was an abuse of discretion to deny a motion for continuance on grounds that the defendant’s attorney would not have been able to adequately prepare for trial due to his wife’s illness. Likewise, in Diaz v. Diaz, 258 So.2d 37 (Fla. 3d DCA 1972), the court held that it was an abuse of discretion to refuse to continue a final hearing by reason of the sudden illness of counsel for one of the parties the day before.

The medical opinion concerning Glick-stein’s risk in going forward with the trial was not disputed. The illness was of recent origin. New counsel could not possibly become prepared to try a case of this magnitude by the time of its scheduled date. Respondent made no showing of prejudice other than that normally incident to trial delay. The matter concerning the lost reporter’s notes was not relevant to the decision of whether to postpone the trial because of Glickstein’s health.

While we are loath to interfere with trial scheduling, we hold that the trial court departed from the essential requirements of law in refusing to grant the continuance. We cannot be certain that petitioner would have an adequate remedy by way of appeal because if petitioner’s counsel decided to proceed with the trial, he might do a less than adequate job because of his medical condition. Of course, the trial cannot be stayed indefinitely pending Glickstein’s recovery. The court should reset the trial sufficiently distant that if it appears that Glickstein’s health will not permit him to participate, there would still be time for petitioner to retain substitute counsel. Nothing herein will preclude the court from taking appropriate action with respect to the missing reporter’s notes.

We grant the petition for certiorari, quash the order denying continuance, and remand with directions that the trial be continued for a reasonable length of time.

SCHEB and CAMPBELL, JJ., concur.


text:
    John Wayne ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. AP-211.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1983.
    Charlene V. Edwards, Asst. Public Defender, Tallahassee, for appellant.
    No response for appellee.
   PER CURIAM.

AFFIRMED. Powers v. State, 422 So.2d 981 (Fla. 1st DCA 1982); Meeks v. State, 369 So.2d 109 (Fla. 1st DCA 1979).

MILLS, SHIVERS and ZEHMER, JJ., concur.


author: WENTWORTH, Judge.

text:
    Willie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. AP-328.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1983.
    David J. Busch, Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Williams appeals eleven convictions of theft and nine convictions of burglary entered after a consolidated jury trial. Because we find that the trial court erred in granting the state’s motion to consolidate pursuant to Fla.R.Crim.P. 3.151, the convictions are reversed and the case is remanded for separate trials.

Eleven separate informations were filed against appellant. Nine of them charged him with burglary and theft of nine different structures and victims on nine different days between November 18, 1981, and December 11, 1981. One of the other two informations charged appellant with theft of a pair of binoculars, and the other charged appellant with theft of a camera lens and a “tele-converter.” Both of the latter informations alleged that the offenses occurred on January 20, 1982, and named the same victim.

Eight of the first nine informations charged appellant along with a co-defendant named James Black. At the trial, Black testified that he and appellant committed the offenses charged in the first nine informations together. Appellant’s sister testified that she was living with appellant and became suspicious in the later part of 1981 because of property which appellant and Black were bringing into the home. One of the investigating officers testified that the binoculars, camera lens, and tele-converter were retrieved from appellant’s home.

The motion to consolidate was based on the state attorney’s assertions that the crimes were “a series of transactions as part of an overall scheme,” that there was a common modus operandi, and that there was a commonality of time and witnesses. The motion was granted without explanation. On the basis of Paul v. State, 385 So.2d 1371 (Fla.1980), and its progeny, we reverse.

Reduced to its essentials, the holding in Paul is that Rule 3.151 does not permit joinder unless the offenses are based on “ ‘connected acts or transactions’ in an episodic sense, and that the rules do not warrant joinder or consolidation of criminal charges based on similar ... episodes, separated in time, which are ‘connected’ only by similar circumstances and the accused’s alleged guilt in ... all instances.” 365 So.2d 1063, at 1065, approved and adopted, 385 So.2d 1371, at 1372. By that reasoning, the fact that the offenses are very similar in nature and even occur within a matter of days does not mean that they are “related” as that term is used in Rule 3.151. See McMullen v. State, 405 So.2d 479 (Fla. 3d DCA 1981). An example of a proper denial of severance of trial for two offenses which did arise out of the same episode is found in Green v. State, 408 So.2d 1086 (Fla. 4th DCA 1982), involving defendant’s convictions for murder of a man and for an assault on a woman in the same hotel parking lot and within a few seconds of the time of the murder. See also Davis v. State, 431 So.2d 325 (Fla. 3d DCA 1983). The offenses charged in the case before us apparently occurred on different days and involved different victims, none of whom were witnesses to any of the other offenses. We conclude that they are not related in the Paul sense.

We recognize that strict adherence to Paul necessarily results in further imposition on our already overburdened trial courts. We are, however, bound by the decision until qualification or clarification by subsequent opinion. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). In addition, under the present terms of Rule 3.151 a determination that offenses such as those now in question are “related” may cause other difficulties, since the rule would arguably compel joinder of “related” offenses at defendant’s option. After defining related offenses, the rule provides:

(b) Two or more indictments or informa-tions charging related offenses shall be consolidated for trial on a timely motion by a defendant ... (e.s.)

Without any attempt to consider all ramifications of the rule, we recognize that judicial definition of related offenses for purposes of denying severance can certainly impact the exercise of discretion in the prosecution of potentially cumbersome proceedings upon multiple charges.

As suggested in Hoffman, and more recently in Strickland v. State, 437 So.2d 150 (Fla.1983), we certify as a question of great public importance the issue of the continued viability and applicability of the Paul ruling in this case.

Reversed.

THOMPSON, J., concurs.

BOOTH, J., dissents without opinion.

      . In Paul, the Supreme Court adopted the dissenting opinion in Paul v. State, 365 So.2d 1063 (Fla. 1st DCA 1979).

      . The Paul opinion notes, with regard to the charges ultimately denied consolidation, that “each of the three crimes was committed at approximately 5 a.m. on a Saturday morning on an upper floor of a girls’ dormitory; that the assailant waited for each victim inside or in the immediate vicinity of the dormitory shower room and that his threats and actions toward each victim bore significant similarities.

      .Arguably, the two offenses alleged to have occurred on January 20, 1982, could be consolidated. We note, however, that the testimony of the victim indicates that the theft of the camera lens occurred several weeks before the theft of the binoculars.


text:
    C & N SERVICE CORPORATION and Florida Insurance Guaranty Association, Appellants, v. John GARZIA and Division of Workers’ Compensation, Appellees.
    No. AR-292.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1983.
    Susan J. Silverman, of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for appellants.
    Howard L. Silverstein, of Silverstein & Heilman, P.A., Miami, for appellees.
   PER CURIAM.

The deputy commissioner’s finding that chiropractic treatment was required by the continuing nature of claimant’s injury is supported by substantial competent evidence and proper in law. See section 440.-13, Florida Statutes (1977), Di Giorgio Fruit Corp. v. Pittman, 49 So.2d 600 (Fla.1950), and Lopez v. Pennsuco Cement & Aggregates, Inc., 401 So.2d 875 (Fla. 1st DCA 1981).

AFFIRMED.

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


author: JOANOS, Judge.

text:
    Marion B. COLEMAN, Petitioner, Appellant, v. The ESTATE OF Howard S. COLEMAN, Deceased, et al., Respondent, Appellee.
    No. AS-13.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1983.

      Dennis H. Sabourin of Scruggs & Carmichael, Gainesville, for appellant.
    Anderson E. Hatfield, Gainesville, for ap-pellee.
   JOANOS, Judge.

When appellant and Howard Coleman married in 1978 they were 57 and 73 years old, respectively. Before the marriage they signed an antenuptial agreement which provided, among other things, that each party entered the agreement with full disclosure by the other and with full knowledge of the extent and probable value of the estate of each. Each released any right to the estate of the other and acknowledged each other’s existing wills.

On March 3,1982, Howard died. His will made no provision for appellant. Appellant filed a document entitled “Election of Surviving Spouse’s Elective Share Under Florida Statutes § 723.201.” The Estate moved to strike the petition for elective share alleging appellant relinquished all claims against the Estate in the antenuptial agreement. In her response, appellant basically asserted that Howard failed to disclose his actual worth and requested the court to void the antenuptial agreement.

The trial court granted the Estate’s motion to strike appellant’s petition for elective share, finding the antenuptial agreement valid. The trial court denied appellant’s motion to amend her pleadings finding her additional assertions seeking to avoid the agreement to be without substance.

Appellant argues that if any of the points listed in her request for leave to amend might constitute valid avoidance of the agreement, the trial court abused its discretion in refusing leave to amend.

Appellant’s arguments center around Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962) and the effect on that case of Section 732.702, Florida Statutes. In Del Vecchio the court held, in the probate context, that in order for an antenuptial agreement to be valid, it must contemplate fair and reasonable provision for the wife or full and fair disclosure to her, before signing the agreement, of the husband’s worth, or absent disclosure, a general knowledge by her of the husband’s property. This rule was extended to the dissolution context in Posner v. Posner, 233 So.2d 381 (Fla.1970). Subsequent to these decisions, however, the legislature added Section 732.702(2) pertaining to antenuptial agreements and a surviving spouse’s rights:

Each spouse shall make a fair disclosure of the other of his or her estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage. (e.s.)

This nullified the holding in Del Vecchio in the probate context. See Weintraub v. Weintraub, 417 So.2d 629 (Fla.1982); Flagship National Bank v. King, 418 So.2d 275 (Fla. 3d DCA 1982).

Appellant has attempted to set forth two requirements derived from Del Vecchio —(1) disclosure, and (2) knowledge of the rights being waived, and to argue that only the first requirement has been abrogated by statute. It has been held, however, that in “[t]he absence of a statutory disclosure requirement for antenuptial agreements ... a spouse may waive a right to unknown assets.” Estate of Garcia v. Garcia, 399 So.2d 486 (Fla. 3d DCA 1981).

Appellant also relies on language in Estate of Roberts 388 So.2d 216 (Fla.1980), 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 an antenup-tial agreement.” The Roberts court also said, “[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.” Appellant has not suggested similar attacks on the validity of the instant agreement, however, her challenges are all variations on the disclosure theme.

Appellant argues her husband affirmatively misled her as to his worth and that this situation is not encompassed within the non-disclosure rule. Appellee responds that appellant’s allegations of affirmative misrepresentation, consisting of Howard’s alleged statements to her, would be inadmissible because of the Dead Man Statute, and we agree. Section 90.602(1), Florida Statutes provides:

No person interested in an action or proceeding against the personal representative, heir-at-law, assignee, legatee, devi-see, or survivor of a deceased person . . . shall be examined as a witness regarding any oral communication between the person and the person who is deceased ....

Appellant does not fit within any of the exceptions to this provision listed in section 90.602(2). See Estate of Parson, 416 So.2d 513 (Fla. 4th DCA 1982).

Finally, appellant argues that by the terms of the agreement, Howard agreed to make full disclosure as a condition precedent to the agreement despite the statutory provision that no disclosure is required. The agreement states:

Each party does specifically agree that this agreement is entered into with a full disclosure by the other and with a full knowledge by the other of the extent and probable value of the estate of each and all rights conferred by law upon each party in the estate of the other by virtue of the said marriage.

We agree with appellee, however, that this was not an agreement to disclose nor a condition precedent to the agreement but a statement that disclosure had been made before the parties entered the agreement and a waiver as to any other rights of disclosure.

To summarize, since no disclosure is required in order for an antenuptial agreement to be valid in the probate context, and appellant’s arguments focus on disclosure, we think the trial court did not abuse its discretion in denying leave to amend.

AFFIRMED.

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


author: ROBERT P. SMITH, Jr., Judge. BOOTH, Judge,

text:
    RECON PAVING, INC. and General Accident Group, Appellants, v. Ralph D. COOK, Appellee.
    No. AQ-239.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1983.

      Frank J. Santry of Field, Granger, San-try & Mitchell, P.A., Tallahassee, for appellants.
    P. Kevin Davey of Douglass, Davey, Cooper & Coppins, Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

The principal contention on this appeal by the employer and carrier is that chapter 82-237, Laws of Fla., section 440.15(3)(a)l, Fla.Stat. (1982 Supp.), unconstitutionally impairs the obligation of a contract setting claimant’s compensation by statutes in effect when claimant was injured in 1981. Art. I, sec. 10, Fla. Const. That is so, appellants urge, because the act retroactively increased the permanent impairment dollars payable to claimant on account of his prior injury. Appellee Cook, the claimant, defends the act as both retroactive and constitutional. Reserving the constitutional question for our consideration, the deputy applied the 1982 act retroactively to increase claimant’s permanent impairment benefits from $1,500, awardable under the statute at the time of Cook’s injury, to $12,500, as fixed according to chapter 82-237.

The arguments proceed upon an erroneous premise. The 1982 increase in permanent impairment benefits for injuries of this type was not retroactive to 1979 as assumed, but was prospective only, applying only to injuries occurring after the effective date of the act, May 1,1982. We therefore do not reach the constitutional questions premised upon the assumed retroactivity of the act.

Cook lost virtually all vision in his left eye in January 1981, when it was pierced by a broken chisel fragment. Appropriate medical testimony and the deputy’s findings, employing the AMA Guides to Evaluation of Permanent Impairment, translated Cook’s impairment as a 32 percent loss of total vision and a 30 percent impairment of the body as a whole.

The statute in effect when Cook was injured provided that for “loss of 80 percent or more of vision, after correction,” a claimant should receive, in addition to benefits for temporary disability and any wage-loss, secs. 440.15(2), (3)(b), Fla.Stat. (1981), permanent impairment benefits of $50 for each percent of bodily impairment through 50 percent and $100 for each percent of bodily impairment above 50 percent. Sec. 440.-15(3)(a)l. That subsection also grants the same benefits to those suffering permanent impairment due to amputation or serious facial or head disfigurement not compensa-ble as a permanent total disability. Thus, if Cook’s 98 percent loss of vision in one eye constituted “loss of 80 percent or more of vision” — which this carrier has never contested, having voluntarily paid Cook some benefits under this section — Cook’s benefits for the resulting 30 percent bodily impairment would be $1,500 under the 1981 statute. The 1982 amendment raised the benefits to $250 for each percentile of impairment up to ten and $500 for each percentile above.

Claimant reads the text and legislative history of chapter 82-237 against a background of assumed legislative concern over litigation then pending in this court affecting the constitutionality of section 440.-15(3)(a)l as enacted in 1979. Our decision in Mahoney v. Sears, Roebuck & Co., 419 So.2d 754 (Fla. 1st DCA 1982), pet. for review granted, Fla. Supreme Court Case No. 62,721, upheld that statute against a claim that its permanent impairment benefits, considered independently of wage-loss and other chapter 440 benefits, are so penurious as to be no adequate substitute for the common law remedies displaced by the act.

Under its title the 1982 act begins with two “whereas” clauses in which the parties and the deputy find a retroactive purpose. Nothing in the body of the act suggests retroactivity, and as will be seen some things suggest the contrary. The “whereas” clauses are:

WHEREAS, the right to impairment benefits for loss of vision has been disputed since the enactment of s. 440.15(3)(a)l. in 1979, it is the intent of the Legislature to clarify that the intent of the existing language is to provide permanent impairment benefits for loss of 80 percent or more of vision of either eye, after correction, and,
WHEREAS, this is not intended to be a substantive change, any employee injured in an accident which occurred on or after August 1, 1979, resulting in loss of 80 percent or more of vision of either eye, after correction, is entitled to permanent impairment benefits, NOW, THEREFORE,
Be It Enacted by the Legislature of the State of Florida:

Claimant’s premise of retroactivity, which appellants accept as introducing their con: stitutional arguments, must be elaborated as follows. The referenced “dispute” over impairment benefits for loss of vision was the constitutional dispute over the alleged penury of impairment benefits specially provided for such vision loss, amputation, or disfiguring face or head injury. The legislature, wishing to remedy that alleged penury and allay that constitutional question, determined to raise the benefits retroactively for eye-loss claimants injured since August 1, 1979, as well as prospectively. The legislature, either because it was mistaken or because it hoped to avoid constitutional arguments of the sort made here, erroneously declared that “this is not intended to be a substantive change.” While at that work, the legislature also clarified the existing purpose and effect of “loss of 80 percent or more of vision, after correction,” meaning that loss in either eye.

If a retroactive purpose could otherwise be found in the 1982 act, we might regard the legislature’s declaration, “this is not intended to be a substantive change,” as benighted but benign: ineffective, because erroneous, to evade the constitutional questions that retroactive substantive legislation may encounter, but evidence nevertheless that retroactivity was purposed. By any standard, increasing or decreasing the dollar benefits payable for an industrial injury is substantive legislation. E.g., City of Lakeland v. Catinella, 129 So.2d 133 (Fla. 1961); Hecht v. Parkinson, 70 So.2d 505 (Fla.1954).

Except in this rather convoluted interpretation of the “not substantive” declaration, there is no evidence of retroactivity in the 1982 legislation. The “not substantive” declaration may therefore be taken at its word, applicable only to provisions in the act that are indeed not substantive but only declaratory of what the legislature conceived was existing law. Because the language may be so taken, it must be.

“In the absence of clear legislative intent to make them retroactive, substantive statutes are prospective only.” That was only recently reaffirmed by the Supreme Court. VanBibber v. Hartford Accident & Indemnity Ins. Co., 439 So.2d 880, 883 (Fla.1983), citing Seddon v. Harpster, 403 So.2d 409 (Fla.1981). We therefore require “clear legislative intent” of a retroactive purpose.

The “whereases” themselves, we think quite obviously, may be construed as referring to a “dispute” over whether existing 440.15(3)(a)l requires, for permanent eye-loss impairment benefits, “loss of 80 percent or more of vision” in one eye or both eyes; and as expressing as the purpose already in place, not a “substantive change,” that of paying for such a loss in one eye.

If in spite of this forthright possibility a retroactive purpose is to be attributed to the “whereas” clauses introducing the enacting clause, it is incongruous that the body of the legislation, by section 5 to “take effect upon becoming law,” contains no simple sentence saying that the benefits payable for certain impairments shall be increased retroactively to August 1, 1979. It is incongruous, too, that the houses of the legislature should have combined in one bill, one act, substantive changes some of which were to be retroactive, as imported to the “whereases,” and some of which were to be prospective only, because not mentioned in the “whereases”. Section 1 of the act inserts “in either eye” and increases the benefits payable for the three special classes of injury. Section 2 increases funeral expenses and other compensation for death, amending 440.16(1). Section 3 repeals 440.-16(6), Fla.Stat. (1981), which differentiated hernias from other impairments, allowed six weeks’ compensation after required surgery, and set up other special provisions for those injuries. Section 4 added to 440.14 a subsection (3), which in calculating average weekly wages credits an employer who provides housing and other considerations during disability.

While we would not dare say it is impossible that the legislature would by “where-ases” signal retroactivity, not otherwise expressed, for part but not all of an act containing diverse substantive legislation on the same subject, benefits for injury, we think it unlikely.

It is unlikely, too, that a matter as potentially significant as retroactive increases in benefits should have been added, as the “whereases” were, on the floor of the House, without recommendation by any committee of reference, according to the journals and debate transcript provided us by claimant. Unlikely, too, that retroactivity should have been approved by the House without a word of explanation or debate, and that the Senate, whose bill was the vehicle for that amendment in the. House, should have concurred unanimously and without debate.

The “whereases” refer only to eye injuries, but if the “whereases” retroactively increase the benefits awardable by section 440.15(3)(a)l for eye injuries, the new text must also be read as retroactively increasing the benefits awardable for amputations and head or face disfigurement. There is no shred of evidence that retroactivity was intended for all those injuries, across the board, and no way to read in the text of amended (a)l a differentiation of eye injury benefits from the others.

Without laboring the matter further, we find no “clear evidence” of purposeful retroactivity in the benefits here in issue.

The parties are correct in their assumption that Cook’s loss of 98 percent of vision in one eye qualifies under the 1981 statute for permanent impairment benefits: the required liberal interpretation of “loss of 80 percent or more of vision,” together with the 1982 expression of legislative intent, assure that result. See Great American Indemnity Co. v. Williams, 85 So.2d 619 (Fla.1956); Naranja Rock Co. v. Dawal Farms, 74 So.2d 282 (Fla.1954); Dolphin Tire Co. v. Ellison, 402 So.2d 36 (Fla. 1st DCA 1981).

The employer and carrier also complain of the deputy’s award of wage-loss benefits, because Cook’s work search did not continue beyond the date of his maximum medical improvement, as assigned by his physician. Exxon Company USA v. Alexis, 370 So.2d 1128 (Fla.1978); Regency Inn v. Johnson, 422 So.2d 870, 877 (Fla. 1st DCA 1982). This contention is not without some merit, see Sambo’s v. Scott, 417 So.2d 759 (Fla. 1st DCA 1982), but under all the circumstances we find no error. Cook has sustained an obviously severe impairment, rated at 30 percent of the body; he made a significant search for work near the end of his rehabilitative period, which ended with the removal of sutures in a medical effort to make his contact lens more comfortable; his disability thereafter made him unable to drive himself on a work search contrast Sambo’s; he undertook self-employment efforts after MMI; and through it all he received no significant assistance from the employer and carrier, who also offered no evidence of available work within Cook’s capacities.

The deputy erred in declaring an attorney’s fee due Cook, based on a partial controversion of certain claimed benefits. There is no finding of bad faith and the carrier did not contest compensability. Secs. 440.34(3)(b) & (c).

The award of permanent impairment benefits exceeding those allowable under section 440.15(3)(a)l, Fla.Stat. (1981), and the fee award are REVERSED. The award of wage loss benefits is AFFIRMED.

WIGGINTON, J., concurs.

BOOTH, J., dissents, with opinion.

BOOTH, Judge,

dissenting:

I respectfully dissent and would hold the 1982 legislation, Chapter 82-237, Florida Statutes, valid and retroactive in view of its remedial purpose to correct what was plainly an inadequate remedy under the 1979 legislation. Mahoney v. Sears, Roebuck & Company, 419 So.2d 754, 756 (Fla. 1st DCA 1982) (dissenting opinion). The majority fails to recognize the invalidity of the 1979 Act, perpetuating the error of Mahoney, supra, and thereby rendering ineffective the Legislature’s belated attempt to correct a grievous wrong.

The order below should be affirmed in its entirety.

      . Retroactivity of the 1982 statute was not made an issue in the Mahoney case, supra, by either party. Claimant in that case did not seek the increased benefits purportedly afforded by the 1982 statute, opting instead to challenge the constitutionality of the 1979 statute in effect at the time of this accident.


text:
    Wesley J. BRADLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1721.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.
    Bennett H. Brummer, Public Defender, and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Winchell v. State, 362 So.2d 992 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 462 (Fla.1979); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967); Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965).


text:
    The PUBLIC HEALTH TRUST OF DADE COUNTY, Florida, Appellant, v. James S. KEMPSTER, Personal Representative of the Estate of Nancy Kempster, Deceased, Appellee.
    No. 82-2440.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.

      Robert A. Ginsburg, Dade County Atty., and Eric K. Gressman, Asst. County Atty., for appellant.
    Ralph F. Miles, Hialeah, for appellee.
    Before HUBBART and NESBITT and JORGENSON, JJ.
   PER CURIAM.

The order under review is reversed upon a holding that: (a) the said order, in effect, modifies a final order of distribution in a probate proceeding, (b) the said order was entered in response to a petition for reimbursement of funeral expenses filed by the personal representative of the estate herein, which petition was untimely as a motion for rehearing under Fla.R.P. & G.P. 5.020(d) and was not a motion to vacate under Fla.R.Civ.P. 1.540(b) as the civil rules of procedure were never invoked in this case, see Fla.R.P. & G.P. 5.025(b); and (c) the trial court, accordingly, had no authority to enter said order. Shelby Mutual Insurance Co. of Shelby, Ohio v. Pearson, 236 So.2d 1 (Fla.1970); Kippy Corp. v. Colburn, 177 So.2d 193 (Fla. 1965); Fidelity & Casualty Co. of New York v. Palomino, 394 So.2d 448 (Fla. 3d DCA), pet. for review denied, 402 So.2d 609 (Fla. 1981); Al Springer Roofing Co. v. Flagler Federal Savings & Loan Ass’n of Miami, 357 So.2d 478, 479 (Fla. 3d DCA 1978).

Reversed and remanded with directions to vacate the order under review.


author: NESBITT, Judge. BASKIN, Judge

text:
    The STATE of Florida, Appellant, v. Jorge L. ACOSTA and Rogelio Rodriguez, Appellees.
    No. 82-2512.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.

      Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellant.
    Pollack, Komorowski, Headley & Surow-iee and John Lipinski, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   NESBITT, Judge.

The state appeals an order dismissing an information for failure of the state to disclose the name of the confidential informant when ordered to do so by the trial court. The information charged Jorge Acosta and Rogelio Rodriguez with actual or constructive possession of a controlled substance and with intent to sell or deliver a controlled substance.

Confidential informant 358 called Sgt. Martinez and told him of a possible drug buy. The informant called one of the defendants, negotiated the price, and then put Sgt. Martinez on the phone. The time and place for the purchase were arranged. The police began surveillance which corroborated the informant’s tip. Shortly before the sale was to take place, the police attempted to pull over the car in which the defendants were driving. The police opened the trunk of the car and found two boxes of quaaludes. After a short chase, the defendant Acosta was arrested. Rogelio Rodriguez fled but was arrested later that day.

The defendants filed a pretrial motion to compel disclosure of the identity of confidential informant 358. In support of this motion, the defendants alleged that the confidential informant contacted them over a period of three months before they agreed to participate in the sale, and that the defendants intended to present an entrapment defense. The trial court held that the informant’s identity had to be disclosed because he was an essential witness for the defense and because the informant’s statements were the sole basis for probable cause.

Public policy favors nondisclosure of the identity of a confidential informant. State v. Kirksey, 418 So.2d 1152 (Fla. 1st DCA 1982). Consequently, the state has a privilege of nondisclosure. Treverrow v. State, 194 So.2d 250 (Fla.1967). A defendant who seeks disclosure of an informant’s identity bears the burden to establish that it is necessary. See Elkins v. State, 388 So.2d 1314 (Fla. 5th DCA 1980) (failure to disclose informant’s identity insufficient basis for dismissal when defendant failed to establish necessity for disclosure).

The fact that the informant provided good cause for a defendant’s arrest is not enough to overcome the privilege of nondisclosure. State v. Kirksey; State v. White, 418 So.2d 411 (Fla. 2d DCA 1982); State v. Martinez, 381 So.2d 1183 (Fla. 3d DCA 1980). Therefore, this was not a valid basis for the order compelling disclosure of the informant’s identity. However, a defendant can sustain his burden to establish the necessity for the informant’s identity by demonstrating that the informant’s testimony is essential to the establishment of a defense. If a defendant needs to know the identity of the informant to present a defense, it is proper to compel disclosure of the informant’s identity. Hawkins v. State, 312 So.2d 229 (Fla. 1st DCA 1975); Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965).

In order to sustain this burden, a defendant first must allege a specific possible defense. The bare assertion that disclosure is needed to insure a full and adequate defense is insufficient to overcome the privilege of nondisclosure. State v. Jones, 323 So.2d 595 (Fla. 3d DCA 1975). Moreover, a defendant must make a preliminary showing of the colorability of the defense. State v. Mesa, 395 So.2d 242 (Fla. 3d DCA 1981). The instant defendants asserted they were entrapped by the informant because the informant induced them over a period of three months to participate in the crime. This assertion, if true, might constitute an entrapment defense. See Kwasniewski v. State, 303 So.2d 373 (Fla. 1st DCA 1974); Stiglitz v. State, 270 So.2d 410 (Fla. 4th DCA 1972).

In addition, a defendant must demonstrate that the testimony of the informant is essential to establish the defense. The mere possibility that disclosure of the informant’s identity might aid in the defense is insufficient to support an order to reveal the identity. State v. Montalvo, 428 So.2d 695 (Fla. 2d DCA 1983). If there are other witnesses a defendant can call, disclosure may not be compelled. State v. Perez, 438 So.2d 436 (Fla. 3d DCA 1983); Drayton v. State, 372 So.2d 983 (Fla. 3d DCA 1979), overruled on other grounds in Smith v. State, 430 So.2d 448 (Fla.1983). Likewise, if the testimony of the informant would not be relevant and material to the establishment of the defense, disclosure is not required. Doe v. State, 262 So.2d 11 (Fla. 3d DCA 1972). Disclosure is only helpful to the defense if the testimony of the informant would exculpate the defendant or materially vary from that of the police. State v. Williams, 369 So.2d 416 (Fla. 3d DCA 1979).

The appropriate procedure for determining whether the confidential informant is an essential witness for the defense is an in camera hearing. See United States v. Fischer, 531 F.2d 783 (5th Cir.1976); Coby v. State, 397 So.2d 974 (Fla. 3d DCA), pet. for review denied, 407 So.2d 1105 (Fla. 1981). See also Mingle v. State, 429 So.2d 850 (Fla. 4th DCA 1983). Before suffering the ultimate sanction of dismissal for refusing to disclose an informant’s identity, the state is entitled to an in camera hearing to consider the necessity for the informant’s testimony and the state’s interest in nondisclosure. State v. Jimenez, 428 So.2d 356 (Fla. 3d DCA 1983). This presupposes that the defendant has met his burden to invoke an in camera hearing because the burden of proof on a defendant seeking an in camera hearing is lighter than the burden to establish the necessity to disclose the informant’s identity. The trial court held (at least in part) that disclosure was necessary because the informant provided probable cause. This was not a valid basis for the order to disclose. We cannot say with certainty that the record contains sufficient facts to invoke an in camera hearing, particularly when the record is so unclear as to which defendant is asserting which element of the entrapment defense. The defendants have not filed a sworn motion or affidavit. Therefore, on remand, the trial court must first determine whether the defendants are entitled to an in camera hearing.

If the court orders disclosure after an in camera hearing and the state continues to refuse to disclose the informant’s identity, dismissal of the information will then be proper. State v. Weinfurt, 409 So.2d 1187 (Fla. 4th DCA 1982). Therefore, we reverse the dismissal of the information and remand for a determination whether the defendants are entitled to an in camera hearing.

Reversed and remanded.

BASKIN, Judge

(concurring in part, dissenting in part).

I concur in the majority’s reversal of the trial court’s order of dismissal but I disa- . gree with the majority’s decision to remand, not for an in camera hearing, but for a “determination of whether the defendants are entitled to an in camera hearing”.

The motion to compel alleges that disclosure is essential to the defense of entrapment and contains sufficient facts to require the court to conduct an in camera hearing. Munford v. State, 343 So.2d 67 (Fla. 2d DCA 1977), rev’d. on other grounds, 357 So.2d 706 (Fla.1978). On remand the court need only permit defendants to swear to the contents of their motion and proceed to the in camera hearing.

      . Furthermore, the record indicates that there was independent evidence of the defendant’s guilt, beyond the informant’s tip. See Illinois v. Gates, - U.S.-, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Matney, 236 So.2d 166 (Fla. 1st DCA 1970).

      . To invoke an in camera hearing, a defendant must file a sworn motion or affidavit alleging facts concerning the informant’s involvement which, if true, would support the possibility of a specific asserted defense. Beasley v. State, 354 So.2d 934 (Fla. 2d DCA 1978). The defendant need not allege all the elements of the defense; it is sufficient that the defense is possible in light of the alleged facts. See, e.g., Munford v. State, 343 So.2d 67 (Fla. 2d DCA 1977), rev’d on other grounds, 357 So.2d 706 (Fla. 1978). Alternatively, the defendant’s burden is met if the necessary facts are apparent from other evidence. Munford v. State, see also State v. Mesa. When it appears that a defendant may have a valid basis to invoke an in camera hearing, he is entitled to the opportunity to file a sworn affidavit alleging sufficient facts. See Riggins v. State, 374 So.2d 1126 (Fla. 1st DCA 1979). The materiality of the informant’s testimony to the defense can be established in an in camera hearing, thereby sustaining the higher burden to show the need for disclosure. State v. Williams.


author: NESBITT, Judge.

text:
    James EDWARDS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-345.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   NESBITT, Judge.

On July 12,1982, appellant was placed on probation for writing six worthless checks totalling $878. Several conditions were imposed on the appellant in the order granting probation. Four months later, appellant’s probation supervisor filed an affidavit alleging that appellant had violated four of the conditions of probation. After a hearing, the trial court entered an order revoking probation. The order recited all four violated conditions as the basis for revocation. These conditions were: (1) probationer may not leave Dade County without the prior consent of his probation supervisor; (2) probationer must submit written monthly reports; (3) probationer must pay $10 a month for cost of supervision; (4) probationer must make restitution payments at a minimum rate of $30 a month.

It is undisputed that the appellant left the county without the consent of his supervising probation officer. While this violation is technical in nature, it is sufficient to support revocation of probation. Lavazzoli v. State, 408 So.2d 583, 584 (Fla. 3d DCA 1981), approved, 434 So.2d 321 (Fla. 1983). It is also clear that the defendant failed to file any written report for two months. This is a substantial violation of the conditions of probation. Chappell v. State, 429 So.2d 84 (Fla. 5th DCA 1983); Roth v. State, 406 So.2d 121 (Fla. 2d DCA 1981); Aaron v. State, 400 So.2d 1033, 1036 (Fla. 3d DCA) (Nesbitt, J. dissenting), pet. for review denied, 408 So.2d 1095 (Fla. 1981).

Appellant does not dispute that he failed to make restitution payments and payments for the cost of supervision. However, there is no evidence in the record to prove that the appellant is currently capable of making the payments. Therefore, these two violations were not valid grounds for revoking probation. The state must prove that he was financially able to make the payments before failure to pay will warrant revoking probation. Smith v. State, 380 So.2d 1175 (Fla. 4th DCA 1980).

In sum, one of the violations was technical, but a valid basis for revoking probation. The other valid basis for the revocation was a substantial violation. On these grounds, we affirm the order revoking probation. See Roth v. State (striking four violations from the order of revocation because the state did not sustain its burden of proof but affirming the order because the two remaining violations were substantial and warranted revocation). The remaining two violations were not valid reasons for the revocation, because the state failed to prove appellant’s ability to pay. These two violations must be stricken from the order of revocation. We remand to the trial court for reconsideration without regard to the two financial conditions which were violated. See Jess v. State, 384 So.2d 328 (Fla. 3d DCA 1980).

Affirmed in part, reversed in part, and remanded.


author: FERGUSON, Judge.

text:
    Grigory MAZEPA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-357.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.
    Bennett H. Brummer, Public Defender, and Carl L. Masztal, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.

      Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

The dispositive question in this case is whether it was error to present to a jury, in a trial for grand theft, evidence of a theft committed by appellant in another state.

Appellant was convicted for the theft of a diamond ring having an alleged value of $20,000 to $25,000. The undisputed evidence as to the circumstances surrounding the subject larceny is as follows.

The victim, owner and operator of Snow’s Jewelry in Coral Gables, Florida, came into possession of an expensive pear-shaped diamond ring on consignment sometime in late December, 1980 or early January, 1981. A few days later, two well-groomed men entered the victim’s store and asked to look at diamond rings, one of which was the subject ring. The two men ultimately examined the diamond in a very professional fashion, recording information in a little notebook. The victim testified that he did not think this unusual, as he believed the two men to be professional competitors who may have been canvassing his store for information on inventory and prices — a common practice in the trade. After the two men had completed their examination, they returned the diamond and left. The victim was sure that the ring returned to him was the same ring that the men had examined because the diamond had recently been placed into a new setting which was still unfinished.

Several days later, between January 17, 1981 and January 19, 1981, appellant and a female companion entered the store. The female asked to look at several diamond rings. One of the rings eventually examined by her was the same diamond ring that had been examined by the two men several days earlier. After looking at the ring for a period of time, the female returned a ring which the storeowner thought to be his. He put it in his pocket without examining the stone because it was tagged and marked with inventory information that looked like his. He later discovered that the original diamond shown to the couple was missing and had been replaced by a fake. Attached to the fake ring was a counterfeit tag which was a “reasonable facsimile” of the victim’s price tags, bearing the correct inventory number.

The state produced evidence, determined by the court in a pretrial hearing as admissible pursuant to Section 90.404, Florida Statutes (1981), of an offense committed by appellant in California. The evidence of that offense, and the subject of this appeal, is as follows.

One or two weeks prior to March 4, 1981, appellant and a female companion entered the Omega Jewelry store in California stating that they wanted to buy a diamond. The operator, Mrs. Shin, showed them several diamonds — a round cut, a pear-shaped and an emerald cut. They examined the jewelry carefully, then left the store without buying.

On March 4, 1981, appellant and his female companion returned to the store and again asked to look at diamonds. The operator became very suspicious because the female was attempting to keep her busy and confused while examining and asking prices about many diamonds. When the couple started to leave the store, having made no purchases, she suspected that one of the rings returned to her was not a diamond. She confirmed this suspicion after looking at the ring under a microscope, then had the guard lock the front door of the store to prevent the couple from leaving. Police officers arrived and conducted a search of appellant and his companion. They found in appellant’s possession two rings which belonged to the Omega Jewelry store. Mrs. Shin testified that two fake rings had been returned to her by the couple, their counterfeit tags bearing the same price and inventory information as the tags on the store’s jewelry. A search of the female companion revealed that she was wearing the diamond ring that had been stolen from the Coral Gables store in January, 1981.

The trial court was eminently correct in admitting evidence of the California crime in the trial for the Coral Gables theft. The modus operandi in both offenses was identical and unique. The identity of the perpetrators having been established to a certainty in the California offense, the evidence of the modus operandi and appellant’s participation in that offense was relevant and admissible on the issue of identity in the Florida trial.

In two recent cases, State v. Maisto, 427 So.2d 1120 (Fla. 3d DCA 1983) and Sias v. State, 416 So.2d 1213 (Fla. 3d DCA), rev. denied, 424 So.2d 763 (Fla.1982), we approved admission of similar offense evidence bearing “hallmark” or “signature” characteristics. Those cases are authority for the decision we reach in this case.

A duty of the courts in determining the admissibility of similar crime evidence is to insure that its relevancy does not go solely to the propensity or character of the accused, and that the evidence is not rendered inadmissible by some other specific rule of exclusion, e.g., Section 90.403, Florida Statutes (1981) (evidence inadmissible where prejudicial effect outweighs probative value). See Moreno v. State, 418 So.2d 1223, 1225 n. 2 (Fla. 3d DCA 1982), setting forth other examples of relevant but inadmissible evidence. This is perhaps one of the few similar crime evidence cases where, in the balance, the question of admissibility is not even close.

The remaining issues are without merit.

Affirmed.

      . Section 90.404(2)(a), Florida Statutes (1981) provides:
      (2) OTHER CRIMES, WRONGS, OR ACTS.—
      (a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.


text:
    Luis E. VENGOECHEA, Appellant, v. The CITY OF SWEETWATER, Florida, Appellee.
    No. 83-698.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.
    Nathaniel L. Barone, Jr., South Miami, and R. David Feliu, Miami, for appellant.
    Ginsburg, Nagin, Rosin & Ginsburg and Stephen Nagin, Coral Gables, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The trial judge in a Summary Judgment forfeited a motor vehicle pursuant to Sections 932.701 — 932.704 Fla.Stat. (1981) to the City of Sweetwater. We reverse. The alleged violations of the criminal laws of this state were directly contradicted by the deposition testimony of the owner of the vehicle and therefore it would be error of the court to award a summary judgment on these alleged felony violations. Holl v. Talcott, 191 So.2d 40 (Fla.1966); State v. Carroll, 404 So.2d 844 (Fla. 5th DCA 1981); Hammond v. Bicknell, 379 So.2d 680 (Fla. 2d DCA 1980). Therefore the matter is returned to the trial court for further proceedings on the issues as made on the pleadings.

Reversed and remanded with directions.