author: ALDERMAN, Chief Justice.

text:
    Ernest Charles DOWNS, Appellant, v. STATE of Florida, Appellee.
    No. 64184.
    Supreme Court of Florida.
    June 21, 1984.
    Rehearing Denied Aug. 28, 1984.

      Elizabeth L. White of the Law Offices of William J. Sheppard, Jacksonville, and Maurice N. Nessen, Michael H. Barr and Leslie Nicholson of Kramer, Levin, Nessen, Kamin & Frankel, New York City, for appellant.
    Jim Smith, Atty. Gen. and Raymond I. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   ALDERMAN, Chief Justice.

Ernest Downs appeals the order of the trial court denying his motions to vacate his convictions and sentences. We affirm the order of the trial court and, among other things, hold that Downs was not denied effective assistance of counsel at either the guilt or penalty phase of his trial.

Downs had been approached by Barfield with an offer of five thousand dollars to kill Harris. He accepted the offer and, with the assistance of Johnson, killed Harris. Downs was convicted of first-degree murder and of conspiracy to commit first-degree murder. After a jury recommendation that the death sentence be imposed, Downs was sentenced to death for murder and thirty years for the conspiracy. Upon appeal, finding no reversible error, we affirmed his convictions and sentences. Downs v. State, 386 So.2d 788 (Fla.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 238 (1980).

Subsequently, Downs filed two motions under Florida Rule of Criminal Procedure 3.850 to vacate his convictions and sentences. After evidentiary hearings, the trial court denied these motions and in its order dealt with each of the points raised by Downs.

On appeal from that order, Downs now argues that a statement made by the prosecutor to the trial judge at sentencing tainted the sentencing process; that sentencing him to death violates the rule for proportionality of sentences; that he should get a new sentencing hearing because the prosecutor informed the jury that Barfield was going to trial for first-degree murder; that he should not have been sentenced to death because the manner in which immunity was awarded to Johnson cast a shadow on the reliability of Johnson’s testimony; that his death sentence should be vacated because of erroneous jury instructions on aggravating and mitigating factors; that the trial court erred in denying him reasonable expenses to employ experts to prove that the death penalty is being imposed unconstitutionally in Florida; that the jury that convicted him was not fair and impartial and was “death qualified” under Witherspoon standards; and that his statement implicating him in the murder was not voluntary and that there was insufficient evidence upon which to convict him. We will not consider these issues because they were or could have been raised on direct appeal and are not proper grounds for post-conviction collateral proceedings.

Downs raises several other points which are appropriate grounds for collateral attack. He argues that he was denied effective assistance of counsel at the guilt and penalty phases of his trial; that the contingent fee contract between him and his defense counsel created a conflict of interest which violated his right to effective assistance of counsel; and that his sentence should be vacated because his counsel was privately reprimanded by the Bar for conduct in this case. Downs also alleges several Brady violations. Finally, he maintains that he is entitled to a de novo post-conviction hearing before a new judge because the present trial judge was biased against him. We find no merit to any of these claims and hold that the trial court ruled correctly.

Downs’ claims of ineffective assistance of counsel at the guilt and penalty phases of his trial, including his assertion of conflict of interest caused by the contingent fee contract, are the only issues that warrant further discussion.

Downs argues that his trial counsel did not provide him reasonably effective assistance of counsel at the penalty phase of his trial because counsel did not adequately “humanize” him, did not present vital details, and did not offer answers to the prosecution’s charges of aggravating circumstances although counsel had available much information relating to Downs’ background which he could have employed. He argues that he was denied effective assistance of counsel at the guilt phase of his trial because his counsel made only a meager or misdirected pretrial investigation that focused on an unreal theory for a defense and failed to present available evidence. He argues that he is entitled to a new trial because there is a likelihood that the failure of his trial counsel to present a good defense affected the outcome of his case. He points to the testimony of his expert that no competent counsel would have acted in this manner in a death case.

The state responds that Downs is quarreling with the tactical decisions of counsel and that the decision as to what evidence to present to “humanize” Downs was a tactical decision made by his counsel; that counsel, in fact, did present evidence on Downs’ behalf at the penalty phase; and that he could have presented additional evidence but did not because in his judgment much of this evidence was negative and would hurt Downs’ chances before the jury. The state further asserts that trial counsel introduced evidence to disprove the factor that the homicide was heinous, atrocious, or cruel; introduced evidence to weaken other aggravating circumstances; and introduced evidence of mitigating factors. The state also argues that counsel conducted a reasonable investigation and that his failure to present the withdrawal and alibi defenses was a matter of trial strategy and that the opinions of Downs’ expert were not compelling because he did not review the pretrial depositions or pretrial work of trial counsel and did not fully consider why trial counsel took certain actions in the course of the trial.

At the time the trial court denied Downs’ motions to vacate based on claims of ineffective assistance of counsel, our decision in Knight v. State, 394 So.2d 997 (Fla.1981), established the test to be applied in evaluating the merits of claims of ineffective assistance of counsel. In Knight, we adopted a four-step analysis to determine whether a defendant has been provided reasonably effective counsel. We announced that our test, adopted from United States v. Decoster, 624 F.2d 196 (D.C.Cir.1976), “provides a means to discover a true miscarriage of justice and yet does not place the judiciary in the role of interfering with defense counsel’s legal and tactical conduct at trial or on appeal.” Knight v. State, 394 So.2d at 1000-01. Knight requires that the defendant, in an appropriate pleading, identify the specific omission or overt act upon which the claim of ineffective assistance of counsel is based; that the defendant show that the specific omission or act was a substantial and serious deficiency measurably below that of competent counsel; that the defendant show that the deficiency, under the circumstances, was so substantial as to probably have affected the outcome of the proceedings; and that, if these three factors are established, the state still has the opportunity to rebut the claim of ineffective assistance by showing beyond a reasonable doubt that there was no prejudice.

The trial court correctly determined that Downs has failed to establish that trial counsel was ineffective at either the guilt or penalty proceedings and that the record and evidence reflect that trial counsel conducted a reasonable pretrial investigation and that his decisions now being challenged were strategic trial matters.

In support of its conclusions, the trial court found:

The evidence before this Court is that trial counsel was aware of and explored all possible — and probable — defenses with the Defendant prior to and during the trial. The attorney participated in over thirty (30) depositions or sworn statements of witnesses, filed discovery and other pre-trial Motions, obtained costs for employment of a private investigator and employed such an investigator to explore possible defenses, reviewed depositions taken by other attorneys of co-defendants, conducted legal research and talked with other attorneys representing co-defendants.
After a review of all the evidence, the claims that counsel was ineffective because he did not offer proof of an alibi or other defense are not supported by the evidence.
On the issue of alibi, the first mention of this important matter by the grandmother of the Defendant to the attorney was in late October 1977. At a sworn deposition taken December 6, 1977, the grandmother denied knowing where the Defendant was at the time of the murder. On December 5, 1977, Sharon Darlene Perry, a sister of the Defendant, was deposed. She testified that she did not have information where the Defendant was and that no one told her where he was.
The attorney had talked with these witnesses in August 1977. There was no mention of alibi by the relatives nor the Defendant until shortly before trial and then this was specifically denied by the grandmother at time of her deposition in 1977.
On the issue of not putting the Defendant on the stand or presenting a defense of “withdrawal,” it appears clear that this was a strategic decision of counsel. The “withdrawal” defense as raised by present counsel appears tenuous and legally insufficient.
On the issue of presenting other witnesses for defense, trial counsel did attempt at the time of trial to offer proof that other persons had a motive to kill the deceased. This evidence was proffered to the Court and ruled inadmissible. This was reviewed at the time of appeal. The fact that family members were not presented as to the life history and good character of the Defendant in consideration of the State’s evidence at trial and the right to two arguments to the jury by defense appears strictly a judgment call.
Defense counsel did present the testimony of family members and the Defendant at the penalty phase. Defendant’s evidence at this proceeding was not restricted to the statutory matters but he was allowed to present what he wanted in mitigation.
The State objected to the testimony of Stephen Bernstein offered as an expert in capital cases. The Court found Mr. Bernstein qualified as an expert in this area but reserved ruling as to the weight of his testimony. The Court finds that Mr. Bernstein is qualified by his experience and training to testify as to his opinion. The weight to be given his testimony is lessened by several factors. One, Mr. Bernstein did not review the depositions or pre-trial work of trial counsel. Second, the manner of defending capital cases has markedly changed since December 1977 to this date. Many of the matters he assumed effective counsel would do simply was not normal nor standard procedure in 1977. The barrage of pre-trial defense motions had not yet been implemented in capital cases. Third, Mr. Bernstein had not fully considered the reasons why counsel took certain actions in the course of the trial by either talking with counsel or reviewing all of his testimony before this Court.
It has been difficult in reviewing this record in distinguishing fact from allegation. This Court has attempted to consider all claims in light of the evidence and testimony presented at the hearings and the Court record.
It is of interest that as of October 21, 1977, the Defendant made no mention of alibi at the time he executed a sworn statement for his attorney as to what happened in this case. As late as January 31, 1980, the Defendant alleged his defense to rest on the testimony of Edward Peters. At this hearing, the Defendant never mentioned such a defense.

These findings are supported by the record.

If we were to apply the Knight criteria in this case, we would find that Downs has failed to show that the alleged omissions or overt acts of his defense counsel constituted a substantial and serious deficiency measurably below the standard of competent counsel.

Since the filing of this appeal, the Supreme Court of the United States has rendered its decision in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), outlining the standards to be used in deciding whether a defendant was denied his sixth amendment right to effective assistance of counsel.

In Washington v. State, 397 So.2d 285 (Fla.1981), applying Knight, we affirmed the trial court’s denial of Washington’s motion for post-conviction relief and expressly stated:

[O]n the claims of ineffective counsel, the appellant has failed under the Knight criteria to make a prima facie showing of substantial deficiency or possible prejudice and has failed to such degree that we believe, to the point of a moral certainty, that he is entitled to no relief under rule 3.850.

397 So.2d at 287. Washington then sought relief in the United States District Court for the Southern District of Florida. That court, after an evidentiary hearing, denied his petition for writ of habeas corpus. Washington then appealed to the United States Circuit Court of Appeals for the Eleventh Circuit. That court reversed the district court, developed its own criteria for analyzing ineffective assistance claims, and remanded the case for a new factfinding hearing. Washington v. Strickland, 693 F.2d 1243 (5th Cir. Unit B 1982). The state then sought review before the Supreme Court of the United States. The Supreme Court reversed the Eleventh Circuit, rejected its criteria for evaluating ineffectiveness of counsel claims, established the standards of an ineffectiveness inquiry, applied these standards, and held that the federal district court had properly denied habeas corpus.

The Supreme Court began its analysis with the explanation that the sixth amendment right to counsel exists in order to ensure the fundamental right to a fair trial, i.e., a trial “in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.” 104 S.Ct. at 2063. The benchmark for judging claims of ineffectiveness, the Supreme Court held, is whether the conduct of counsel “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 2064. In order for a defendant to succeed on a claim of ineffectiveness of counsel so as to obtain a reversal of a conviction or death sentence, the Supreme Court held that he must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. The measure of an attorney’s performance, the Court stated, is reasonableness under prevailing professional norms, reasonableness considering all the circumstances. In this regard the Supreme Court explained:

No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. See United States v. Decoster, 624 F.2d, at 208. Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant’s cause. Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 [102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783] (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” See Michel v. New York, supra, [350 U.S. 91], at 101 [76 S.Ct. 158, at 164, 100 L.Ed. 83]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L. Rev. 299, 343 (1983).
The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel’s unsuccessful defense. Counsel’s performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned eases, and undermine the trust between attorney and client.

Id. at 2065-66.

We agree with the Supreme Court’s analysis. In Florida, there has been a recent proliferation of ineffectiveness of counsel challenges. Criminal trials resolved unfavorably to the defendant have increasingly come to be followed by a second trial of counsel’s unsuccessful defense. Although courts have found most of these challenges to be without merit, defense counsel, in many of the cases, have been unjustly subjected to unfounded attacks upon their professional competence. A claim of ineffective assistance of counsel is extraordinary and should be made only when the facts warrant it. It is not a claim that is appropriate in every case. It should be the exception rather than the rule.

The Supreme Court emphasized that in judging ineffectiveness claims, a court must judge the reasonableness of challenged conduct of counsel on the facts of the particular case viewed as of the time of counsel’s conduct. It stated:

A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.

Id. at 2066. The Supreme Court further emphasized that counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Strategic choices after thorough investigation of the law and facts are virtually unchallengeable, and a particular decision not to investigate is to be assessed for reasonableness considering all the circumstances and applying a “heavy measure of deference to counsel’s judgments.” Id.

Furthermore, the Supreme Court held, even if defendant can demonstrate that counsel’s performance was deficient under these guidelines, this will not warrant setting aside the judgment of a criminal proceeding if counsel’s errors had no effect on the judgment. In order to constitute ineffective assistance under the constitution, counsel’s deficiencies in performance must be prejudicial to the defendant. Defendant must affirmatively prove prejudice. The Supreme Court explained:

Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.

Id. at 2067.

The appropriate test for prejudice, the Supreme Court concluded, is:

The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
... When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.
In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.'

Id. at 2068-69. In deciding whether defendant has proved prejudice, a court should presume that the judge or jury acted according to the law. The concern of the court evaluating an ineffectiveness claim should be whether the result of a particular proceeding is unreliable because of a breakdown in the adversarial process.

Importantly, the Supreme Court held that to the extent this has been the guiding inquiry in the lower courts, the standards articulated today do not require reconsideration of ineffectiveness claims rejected under different standards. It further directed that courts should strive to ensure that claims of ineffectiveness not become so burdensome to defense counsel that the criminal justice system suffers as a result.

Finally, the Supreme Court determined that in assessing an ineffectiveness claim, either the performance component of the test or the prejudice component can be evaluated first. If either one of these showings is insufficient, defendant’s claim must fail.

Applying the principles of Strickland v. Washington to this case does not require a different conclusion than was reached by the trial court. The facts developed in the record make clear that the conduct of Downs’ counsel was not unreasonable under the circumstances. The record reflects that counsel made a reasonable investigation and that his decisions now being challenged were not outside the range of professionally competent assistance. Moreover, even if we had found counsel’s conduct to have been unreasonable, we would also have concluded that the counsel’s deficiencies did not prejudice Downs.

We turn now to another point. Downs contends that the contingent fee contract between him and his defense counsel created a conflict of interest which violated his right to effective assistance of counsel. Although such a contingent fee contract is improper and unethical in a criminal case, it does not alone establish denial of effective assistance of counsel. Such unprofessional conduct is one factor to be considered by the trial court under the totality of the circumstances in determining whether a defendant has been deprived of effective assistance of counsel. Defendant must prove that this agreement affected trial counsel’s representation. The trial court properly concluded that there was no such showing in this case.

Accordingly, we conclude that the trial court properly denied Downs’ 3.850 motions, and we affirm.

It is so ordered.

ADKINS, BOYD, OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Recently, in Jackson v. State, 452 So.2d 533 (Fla.1984), we held that the Knight standard does not differ significantly from the standard announced by the United States Supreme Court in Strickland.


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    Bryan F. JENNINGS, Appellant, v. STATE of Florida, Appellee.
    No. 62600.
    Supreme Court of Florida.
    July 12, 1984.

      James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen. and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.
   OVERTON, Justice.

The appellant, Bryan Jennings, was convicted of the first-degree premeditated murder of a six-year-old girl. In accordance with the jury’s advisory recommendation, the trial judge imposed the death sentence. Appellant was also convicted of kidnapping, sexual battery, burglary of an occupied dwelling and committing an assault therein, and aggravated battery. He was sentenced to consecutive life sentences for each of these offenses except the aggravated battery, for which no sentence was imposed. We have jurisdiction, and we affirm the convictions, the sentence of death, and the sentences for the other offenses.

This appeal follows appellant’s second trial for these offenses. In Jennings v. State, 413 So.2d 24 (Fla.1982), this Court held that at appellant’s trial he was deprived of the benefit of cross-examination of a vital, material witness because of an attorney-client conflict. We vacated appellant’s convictions and sentences and remanded for a new trial. In that opinion we also held that a statement which appellant made to the police was admissible because the facts established a proper waiver of counsel.

We reiterate the relevant facts. On the morning of May 11, 1979, the victim’s parents discovered that she was missing from the family’s Brevard County home. Later that afternoon, the victim’s nude body was found floating in a nearby canal. The autopsy revealed that she had been sexually assaulted, that her skull had been fractured, and that the cause of her death was asphyxiation by drowning. The police investigation at the child’s home resulted in the discovery of latent fingerprints on the window sill of the victim’s bedroom and a footprint in the sand outside the bedroom window.

On the same day as the murder, the appellant, a 20-year-old marine home on leave, was arrested on a traffic warrant and taken to the Brevard County jail. At 1:00 a.m. on May 12, he was awakened in his cell and taken by police to an interview room for questioning with regard to the girl’s death. He initially told the officers that he wanted an attorney and that he was not involved in the crime. Later, after using the restroom, appellant indicated his willingness to talk to the officers without an attorney present. After substantial questioning, he admitted the crime although he denied intending to kill the girl. Appellant, in a tape-recorded statement played to the jury, told the police that he climbed through the window of the girl’s bedroom, placed his hand over her nose and mouth until she lost consciousness, and put her in his car and drove to the nearby canal, where he sexually assaulted her. He stated that he then threw her, unconscious, into the canal. He denied hitting the victim in the head, however. Appellant drew maps for the officers, tracing his activities during the evening, and told them where he had hidden the clothes that he wore while committing the crime.

At trial, Allen Kruger, who was in the Brevard County jail after being convicted of second-degree murder, testified that while in jail appellant told him that he picked the girl up over his head and threw her down on the pavement and that he held her head under the water of the canal for ten minutes. The medical examiner testified that, although the death was due to drowning, the injuries to the head were sufficient in and of themselves to cause death and were consistent with being caused by her head’s striking a solid surface. It was also established that the victim suffered a traumatic injury to her vagina. Evidence was presented that the fingerprints taken from the window sill of the victim's bedroom matched appellant’s and that the footprint in the sand outside the window was similar in tread design to shoes belonging to appellant. Appellant introduced testimony which showed that he had been drinking heavily on the night of the murder. The jury found the defendant guilty of first-degree premeditated murder, two counts of first-degree felony murder (one based on kidnapping, the other on sexual battery), kidnapping, two counts of sexual battery, burglary of a dwelling and committing an assault therein, and aggravated battery.

At the penalty phase of his trial, appellant offered testimony of a psychiatrist, Dr. Michael Guttman, and a psychologist, Dr. Elizabeth McMahon. Dr. Guttman testified that appellant suffered from a long-term character and behavior disorder and was a sexually perverse individual. While he concluded that appellant was sane, Dr. Guttman testified that, based on appellant’s psychological disorder and the history of having consumed a substantial amount of alcohol, appellant could not limit his conduct as a normal person would under similar circumstances. Dr. McMahon testified that, due to appellant’s alcohol consumption and his mental disorders, appellant’s ability to control his behavior was severely limited. She stated that appellant did not have control of his emotional impulses and completely lacked self-control of any sort. Both doctors agreed that appellant met the criteria for certification as a mentally-disordered sex offender under chapter 917, Florida Statutes (1977). Other testimony offered during the penalty phase by the appellant established that he was an illegitimate child and never knew his real father; that he had a history of psychiatric problems including voyeurism and transvestism; and that he was capable of helping others during a crisis and possessed some sensitivity.

In response to appellant’s psychiatric evidence, the state offered the testimony of Dr. J. Lloyd Wilder. Dr. Wilder testified that although appellant had a character or personality disorder which is not easily cured, appellant did not suffer from any mental disease or defect. Further, Dr. Wilder stated that appellant’s acts were deliberate, that he understood the nature of his acts, and that he was not a mentally-disordered sex offender.

By a 9-to-3 vote the jury returned an advisory recommendation that the appellant be sentenced to death.

In a separate hearing, the trial court denied appellant’s request to be treated as a mentally-disordered sex offender, expressly relying on Dr. Wilder’s testimony.

The trial judge imposed the death penalty, finding three aggravating and no mitigating circumstances. The aggravating circumstances found by the trial judge were: (1) that the murder was committed while appellant was engaged in the commission of a burglary, kidnapping, and rape; (2) that the murder was heinous, atrocious, and cruel; and (3) that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. The trial judge found no mitigating circumstances. He expressly found that, at the time of the crime, appellant was not under the influence of extreme mental or emotional disturbance and that appellant’s capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of law was not substantially impaired. In so finding, the trial judge again relied on the testimony of Dr. Wilder.

The trial judge imposed three consecutive life sentences on appellant for his convictions of kidnapping, one count of sexual battery, and burglary of an occupied dwelling and committing an assault therein. With regard to the second sexual battery charge of which appellant was found guilty, the trial judge determined that it was based on the same episode as the other sexual battery charge and he did not impose a sentence. The trial judge also did not impose a sentence for the aggravated battery conviction. Appellant has not contested these life sentences before this Court.

Guilt Phase

Appellant contends that his conviction should be vacated because the trial court erroneously (1) admitted appellant’s confession into evidence; (2) admitted evidence obtained as a result of appellant’s confession; (3) denied motions for judgment of acquittal of first-degree premeditated murder on the ground that there was insufficient evidence of premeditation; (4) failed to grant a mistrial due to improper argument by the prosecutor during the guilt phase; and (5) admitted three photographs of the victim.

With regard to the first and second points raised by appellant, we addressed, in his first appeal, the issue of “the admissibility of the statement Jennings made as a result of police interrogation and the evidence secured as a consequence thereof.” 413 So.2d at 26. Although we noted our concern with some of the language in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), we concluded that the instant case was distinguishable from Edwards and that under the totality of the circumstances appellant’s confession and the fruits of it were properly admitted by the trial court. We find nothing in either the record of this case or subsequent case law which requires us to change our ruling on the admissibility of appellant’s confession and the evidence obtained as a result of the confession. Accordingly, we find appellant’s points one and two to be without merit.

We also reject appellant’s third point that the evidence was insufficient to establish premeditation. The evidence shows that appellant had more than enough time to form the intent to kill the victim and there is substantial competent evidence in the record that appellant was not so intoxicated that he could not form the specific intent to kill.

Appellant’s fourth point is that the trial court erred in denying a motion for mistrial because of improper argument by the prosecutor. The motion arose from a remark to the jury in which the prosecutor compared appellant’s right to use the telephone to call an attorney during his interrogation and the victim’s right to live. Appellant contends that this remark was irrelevant and inflammatory. We agree that the remark was improper, but we do not find that the remark was so prejudicial that a mistrial was required. Considering the totality of the circumstances, we do not find reversible error. Again, we must caution prosecutors to confine their arguments to the evidence. See Teffeteller v. State, 489 So.2d 840 (Fla.1983).

With regard to appellant’s fifth contention, we reject the assertion that his trial was tainted by the admission of three photographs of the body of the victim. We find that the photographs were properly admitted as relevant to the issues tried in this cause.

Sentencing Phase

Appellant contends that his sentence should be vacated and that a new sentencing trial should be granted because (1) the trial court erred in failing to grant a motion for mistrial because a psychiatrist, in explaining appellant’s case history, referred to criminal offenses committed by appellant when he was in the military service; (2) the trial court refused to grant his request for special jury instructions; (3) the trial court improperly instructed the jury that seven or more of their number was required to return a sentencing recommendation; (4) the trial court failed to certify appellant as a mentally-disordered sex offender; (5) the trial court improperly found as an aggravating circumstance that this murder was heinous, atrocious, and cruel; (6) the trial court erred in applying the aggravating circumstance that the murder was cold, calculated and premeditated; (7) the trial court failed to find mitigating circumstances established in the record; and (8) Florida’s capital-sentencing statute is unconstitutional. Appellant’s points three and eight merit no discussion. Each has been considered and rejected by this Court. See Rembert v. State, 445 So.2d 337 (Fla.1984); Jackson v. State, 438 So.2d 4 (Fla.1983); Harich v. State, 437 So.2d 1082 (Fla.1983); Antone v. State, 382 So.2d 1205 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980).

With regard to his first point, it is contended that although the appellant and the state stipulated that appellant would not rely on the mitigating circumstance of no prior significant criminal history, a state witness referred to crimes which appellant committed while in the military. The state called Dr. Wilder, a psychiatric expert witness who, in response to a question asking him the basis for his opinion that appellant was a sociopath, stated that his conclusion was based on his examination of appellant’s case history which included references to crimes committed while appellant was in the military. Appellant’s counsel moved for mistrial. The trial court agreed that the comment was improper, but denied the motion for mistrial and instead struck the expert witness’s testimony and gave a curative instruction to the jury. Appellant contends that the curative instruction was insufficient because of the prejudice resulting from the expert witness’s statement, which, appellant argues, merely drew greater attention to appellant’s character. Under the circumstances of this case we disagree. It does not appear from the record that the expert witness’s statement was intentionally elicited by the prosecution. Further, given the other matters concerning his character and background placed in evidence by the appellant, this statement did not rise to the level of prejudicial evidence which this Court found was improperly admitted in Maggard v. State, 399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981). We find that the trial court’s denial of the appellant’s motion for mistrial was not prejudicial error.

In his second point, appellant argues that the trial court erred in refusing to grant his request for special jury instructions at the sentencing phase. Appellant contends that he was entitled to special jury instructions on the definition of the aggravating circumstance of “heinous, atrocious and cruel” and on the process of weighing aggravating and mitigating circumstances in determining the sentence to be imposed. The trial court’s denial of these specially requested instructions was not error. The appropriate standard jury instructions were given by the trial judge, who included an instruction requested by appellant which stated that “the mitigating circumstances which you [the jury] may consider are unlimited. You may consider any evidence presented at trial or the sentencing proceeding in mitigation of the defendant’s sentence.” We find that no prejudice resulted to appellant from the jury instructions given by the trial court during the sentencing phase of appellant’s trial.

In his fourth point, appellant argues that the trial court erred in failing to certify appellant as a mentally-disordered sex offender and place him in the custody of the Department of Health and Rehabilitative Services to be treated and sentenced later. On this issue, the trial judge considered medical testimony presented by both appellant and the state. The testimony was in conflict and the trial judge expressly relied on the testimony presented by the psychiatrist who testified for the state. There is substantial competent evidence in the record to support the finding of the trial judge.

Appellant’s fifth and sixth points are that, in sentencing appellant to death, the trial court improperly applied the aggravating circumstances that the murder was “heinous, atrocious, and cruel,” and that the murder was “committed in a cold, calculated, and premeditated manner.” We disagree with the appellant that under the facts of this case and this Court’s definition of “heinous, atrocious, and cruel,” the trial court erred in finding this aggravating circumstance. We agree that the mindset or mental anguish of the victim is an important factor in determining whether the aggravating circumstance of heinous, atrocious, and cruel applies. It is not, however, the sole controlling factor as illustrated by our decisions in Proffitt v. State, 315 So.2d 461 (Fla.1975), and Spenkellink v. State, 313 So.2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). As important is the totality of the circumstances of the incident and whether they reflect that this was a conscienceless, pitiless, and unnecessarily torturous crime that sets it apart from the norm of capital felonies. State v. Dixon, 283 So.2d 1 (Fla.1973). We find that this case is similar to Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982), which also involved the murder and sexual assault of a young girl who was kidnapped from her home during the night. We do not find that our recent decision in Herzog v. State, 439 So.2d 1372 (Fla.1983), should apply. Under the totality of the circumstances, and applying our decisions to the facts in the instant case, we find that the trial court properly applied the aggravating circumstance of heinous, atrocious, and cruel.

We also find that the trial court properly applied the aggravating circumstance that the murder was committed in a cold, calculated, and premeditated manner. The evidence shows that appellant located his victim, left, and then returned a short time later to enter the victim’s home through her bedroom window and take her from her bed. His subsequent conduct in brutally fracturing her skull and then drowning her in the manner previously described establishes the heightened premeditation required for finding this aggravating circumstance.

In point seven, appellant argues that the trial court erred in failing to find certain justifiable mitigating circumstances. We find that the record justifies the trial court’s finding that appellant was not under the influence of extreme mental or emotional disturbance when he committed the murder. The record also supports the trial judge’s finding that the appellant’s capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of law was not impaired. Appellant also argues that the trial court should have found as mitigating circumstances his age, his military service, his being a mentally-disordered sex offender, his remorse for his crime, and his unstable family life. It was within the province of the trial court to decide, on the basis of the record in this case, whether these mitigating circumstances offset the aggravating circumstances which were established.

We have reviewed appellant’s sentence and considered it in light of similar cases to determine its appropriateness and note that we have affirmed the imposition of the death sentence in cases involving similar murders of children in which the defendants were of youthful age. See Buford; Goode v. State, 365 So.2d 381 (Fla.1978); cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). We find no error in the imposition of the death penalty in this case.

For the reasons expressed, we affirm the appellant’s convictions, the imposition of the death sentence, and the life sentences imposed for kidnapping, sexual battery, and burglary of a dwelling and committing an assault therein.

It is so ordered.

BOYD, C.J., and ADKINS, ALDERMAN, MCDONALD, EHRLICH and SHAW, JJ., concur.

       Art. V, § 3(b)(1), Fla. Const.


author: BOYD, Chief Justice. McDONALD, Justice, EHRLICH, Justice,

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Petitioner, v. Daniel M. NOVAK, as personal representative of the Estate of Beverly Ann Novak, Respondent.
    No. 63207.
    Supreme Court of Florida.
    July 12, 1984.

      Clark J. Cochran, Jr., of Hainline, Billing, Cochran & Heath, Fort Lauderdale, for petitioner.
    M. Daniel Hughes of Chappell and Brandt, Fort Lauderdale, for respondent.
   BOYD, Chief Justice.

This cause is before the Court on petition for review of a decision of the District Court of Appeal, Fourth District. The decision of which review is sought is reported as Novak v. Government Employees Insurance Co., 424 So.2d 178 (Fla. 4th DCA 1983). The jurisdictional ground of the petition for review is conflict of decisions. See Art. V, § 3(b)(3), Fla. Const. The decision relied upon as being in direct and express conflict with the decision below is Reynolds v. Allstate Insurance Co., 400 So.2d 496 (Fla. 5th DCA 1981). We have jurisdiction and approve the decision of the district court.

Beverly Ann Novak was in her car and about to drive away from her residence when she was approached by Robert Endi-cott, a stranger to her. Endicott asked her for a ride. She refused. Then Endicott shot her in the face, pulled her from the car, got in, and drove away. The police apprehended Endicott soon afterwards, but in the resulting criminal proceedings his actions were legally determined not to have been crimes because of a mental disturbance precluding a finding that his acts were intentional. That is, he was determined to be not guilty by reason of insanity-

Several months later, Beverly Ann No-vak died as a result of the gunshot wound she sustained. Daniel Novak, father of.the deceased and personal representative of her estate, sought payment from petitioner Government Employees Insurance Company of personal injury protection benefits under the insurance policy covering the automobile his daughter had been driving. The insurer denied coverage and the present action was brought on behalf of the estate. The trial court granted summary judgment for the insurer on the ground that the injuries to the deceased did not arise out of the ownership, maintenance, or use of the insured motor vehicle.

The district court of appeal reversed, finding a sufficient connection between the automobile and the injury. The district court reasoned as follows:

[T]he shooting in this case was motivated by and a direct result of the assailant’s request to ride in the vehicle and the victim’s refusal. Endicott’s attempted use of the vehicle and the driver’s refusal prompted the conduct that caused the injury. It must be remembered that we are not looking for a proximate causal relationship in the resolution of this case; rather the inquiry should be whether the attack upon the decedent arose out of, or flowed from, the use of the vehicle. The answer seems rather clear to us that the decedent’s refusal to allow Endicott to ride in the car, which she was operating, demonstrates a sufficient nexus to meet the requirements of the rule requiring a causal relationship. Therefore, we hold that PIP coverage was available for the accident in question.

424 So.2d at 180.

Petitioner argues that the district court erred. The risk of injury from an intentional criminal attack by another person is not, petitioner argues, among the dangers personal injury protection insurance is intended to cover. Petitioner relies on numerous cases where the automobile was found to be merely the situs of acts or incidents arising from completely independent causes. We find those cases to be inapposite and unpersuasive. The extent of the coverage is governed by the policy language and the statute regulating such policies.

Section 627.736(1), Florida Statutes (1981), requires that automobile insurance policies provide personal injury protection benefits for any “loss sustained ... as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle,” and goes on to specify the required benefits. Pursuant to the requirements of the statute, the policy in this case provided coverage for any “accident ... arising out of the ownership, maintenance, or use of a motor vehicle.” The instant case thus raises two questions of definition and construction, which are: (1) the meaning of the term “accident” and (2) the meaning of the clause “arising out of the ownership, maintenance, or use of a motor vehicle.”

The word “accident” has been defined as “an event or condition occurring by chance or arising from unknown or remote causes ... an unforeseen, unplanned event or condition ... a sudden event or change occurring without intent or volition through carelessness, unawareness, ignorance, or a combination of causes and producing an unfortunate result.” Webster’s Third New International Dictionary 11 (1966).

The word “accident” is further defined as “a fortuitous circumstance, event, or happening ... an unusual, fortuitous, unexpected, unforeseen, or unlooked for event, happening, or occurrence ... something unforeseen, unexpected, unusual, extraordinary or phenominal, taking place not according to the usual course of things or events ... any unexpected personal injury resulting from any unlooked for mishap or occurrence.” Black’s Law Dictionary 30 (rev. 4th ed. 1968). More significantly, Black’s Law Dictionary provides a further special definition of the word as used in accident insurance policies. “An accident within accident insurance policies is an event happening without any human agency, or if happening through such agency, an event which, under [the] circumstances, is unusual and not expected by the person to whom it happens.” Id. at 31.

To the extent that the attack on Ms. Novak was an intentional act of the attacker, it can reasonably be said that it was not an “accident.” But from the perspective of the deceased victim, the event of being shot in the face by a pedestrian while she drove her car was certainly a completely unexpected and unusual occurrence, producing a highly unfortunate result. Furthermore, the fact that Endicott was later legally declared to be not responsible for his actions severely undermines the conclusion that Ms. Novak’s injuries were purely the result of an intentional criminal act.

Endicott was a severely disturbed man, prone to acts of violence. As such, he was a man to avoid just as surely as a motorist would want to avoid a drainage ditch or a deep washed-out hole in the road. It was Beverly Novak’s unawareness of his condition and her ignorance of his propensities that caused her to fail or neglect to prudently avoid any encounter with or proximity to him. From her point of view, the completely chance occurrence of having Endicott approach her was a most unexpected and unfortunate accident indeed.

Construction of the clause “arising out of the use of a motor vehicle” is an easier matter. It is well settled that “arising out of” does not mean “proximately caused by,” but has a much broader meaning. All that is required is some nexus between the motor vehicle and the injury. E.g., Government Employees Insurance Co. v. Batchelder, 421 So.2d 59 (Fla. 1st DCA 1982); Indiana Insurance Co. v. Winston, 377 So.2d 718 (Fla. 4th DCA 1979), cert. denied, 388 So.2d 1120 (Fla.1980); Auto-Owners Insurance Co. v. Pridgen, 339 So.2d 1164 (Fla. 2d DCA 1976); National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla. 3d DCA 1971). It is clear that in the present case, as the district court correctly concluded, there was a highly substantial connection between Ms. Novak’s use of the motor vehicle and the event causing her fatal injury. Obtaining a ride in or possession of the motor vehicle was what motivated the deranged Endicott to approach and attack the deceased.

The clause, “arising out of the use of a motor vehicle,” is framed in such general, comprehensive terms in order to express the intent to effect broad coverage. Red Ball Motor Freight, Inc. v. Employers’ Mutual Liability Insurance Co., 189 F.2d 374 (5th Cir.1951). Such terms should be construed liberally because their function is to extend coverage broadly. Valdes v. Smalley, 303 So.2d 342 (Fla. 3d DCA 1974) (liability coverage held to extend to injuries caused by object thrown from car by passenger), cert. discharged sub nom., National Ben Franklin Insurance Co. v. Valdes, 341 So.2d 975 (Fla.1976) (discharging of writ explained in opinion finding no conflict with precedents).

Accordingly, we hold that the personal injury protection benefits are applicable to the accident that occurred in this case. The district court was correct in saying, “We do not understand that the automobile must be the instrumentality of the injury nor do we believe the type of conduct which causes the injury must be foreseeably identifiable with the normal use of the vehicle.” 424 So.2d at 181.

We do not believe that our holding necessarily implies disapproval of Reynolds v. Allstate Insurance Co., the case cited by the petitioner as being in conflict. We believe the facts of that case make it distinguishable from this one. The decision there turned on the plaintiff’s failure to allege facts sufficient to show the nexus between the use of the car and the injuries. This determination does not deprive us of jurisdiction, however, as there are numerous other cases, some discussed in the briefs and some which we have found ourselves, that expressly and directly conflict with the decision below.

The decision of the district court of appeal is approved.

It is so ordered.

ADKINS, ALDERMAN and SHAW, JJ., concur.

McDONALD, J., dissents with an opinion in which OVERTON and EHRLICH, JJ., concur.

EHRLICH, J., dissents with an opinion in which OVERTON and McDONALD, JJ., concur.

OVERTON, J., dissents.

McDONALD, Justice,

dissenting.

I cannot interpret the policy language, required by law, that PIP benefits be provided for “an accident arising out of the ... use of a motor vehicle” to cover a criminal assault occurring within the insured vehicle, regardless of the assailant’s reason for committing the assault. The fact that Endicott was later acquitted because of insanity when he assaulted Novak does not justify the majority’s adoption of a subjective intent standard in this case.

The intent of Beverly Novak’s assailant to use the vehicle does not provide a sufficient basis for distinguishing this case from the typical assault case, where PIP coverage does not apply because no sufficient causal connection with the use of the vehicle is shown. See, e.g., Reynolds v. Allstate Insurance Co., 400 So.2d 496 (Fla. 5th DCA 1981) (no PIP coverage for assault by intruder lurking in the back seat of the insured vehicle which was merely the fortuitous scene of the assault). There is no justification for placing this case with those cases finding coverage because the use of the vehicle caused or added to the injuries. See, e.g., Valdes v. Smalley, 303 So.2d 342 (Fla. 3d DCA 1974), cert. discharged, 341 So.2d 975 (Fla.1976) (coverage found because the velocity of the vehicle added to the destructive force of an object thrown from it). The assailant’s intent, whether to obtain a ride, to steal the car, to rob or kidnap an occupant, or even to commit murder, does not provide a sufficient nexus between the assault and the use of the car. Holding the subjective intent of an assailant determinative as to the “use” of a vehicle for PIP entitlement would require insurers to guess whether particular assaults and resulting injuries are covered under the PIP policy language required by law. See § 627.736(1), Fla.Stat. (1981). PIP benefits were not meant to apply in such uncertain circumstances.

OVERTON and EHRLICH, JJ., concur.

EHRLICH, Justice,

dissenting.

Ms. Novak had started her automobile and was prepared to back up and drive to the bank when she was accosted and shot upon refusal to accede to the demands of Mr. Endicott to give him a ride or the use of her vehicle. I agree with the majority that Ms. Novak’s being shot meets the policy definition of “accident.” However, I cannot accept the further conclusion of the majority opinion that this accident arose out of the use of the automobile. Suppose Ms. Novak was accosted when she was within a foot or two of her car, with keys in hand, and shot when she refused to give her assailant her keys. Would it be contended that PIP benefits are applicable? Of course not. Then the only difference between the assumed facts and the ones at hand is the situs of the attack, and the mere fact that the attack took place when Ms. Novak was in the automobile does not result in the attack having arisen out of the ownership, maintenance or use of the automobile. See Reynolds v. Allstate Insurance Co., 400 So.2d 496 (Fla. 5th DCA 1981).

Whether Ms. Novak was standing outside of the car or was seated in the car when shot makes no difference. The use of the car was not involved in the act of violence and that is the dispositive element in order to bring into play one’s entitlement to PIP under the policy of insurance.

I dissent.

OVERTON and McDONALD, JJ., concur.


author: WIGGINTON, Judge.

text:
    PINE ISLAND RIDGE COUNTRY CLUB and Southeastern Fire Insurance Company, Appellants, v. Lawrence BOURST, Appellee.
    No. AW-126.
    District Court of Appeal of Florida, First District.
    May 22, 1984.
    Albert P. Massey, III of Pyszka and Kes-sler, P.A., Fort Lauderdale, for appellants.
    Barry A. Pemsler of Richard & Pemsler, Miami, for appellee.
   WIGGINTON, Judge.

The employer/carrier appeal the order of the deputy commissioner, challenging the awards of wage loss benefits and rehabilitation benefits in the form of claimant’s participation in an “elee-tronics/computer” course. We affirm the wage loss award, as the record contains competent and substantial evidence to uphold the deputy’s findings. Clay Hyder Trucking v. Persinger, 416 So.2d 900 (Fla. 1st DCA 1982); Vida Appliances, Inc. v. Gates, 416 So.2d 1186 (Fla. 1st DCA 1982). We also affirm the rehabilitation benefits award, as the deputy has wide latitude to award treatment or services when they are deemed necessary. Section 440.49(1)(a), Florida Statutes (1979); Hurricane Fence Industries v. Bozeman, 413 So.2d 822 (Fla. 1st DCA 1982). The record amply supports the deputy’s decision in that regard.

AFFIRMED.

MILLS and SHIVERS, JJ., concur.


author: LEHAN, Judge.

text:
    AC ASSOCIATES, a partnership, Appellant, v. FIRST NATIONAL BANK OF FLORIDA, Frank V. Guinta, John Greco, Mac A. Greco, Jr., as co-personal representative of the Estate of Mac A. Greco, Sr., and Annie B. Greco, as personal representative of the Estate of Joseph Greco, Appellees. Frank GUINTA, John Greco, Mac A. Greco, Jr., Josephine Greco and Eugene S. Greco, as co-personal representatives of the Estate of Mac A. Greco, Sr., et al., Appellants, v. M-W PROPERTIES CORPORATION, a Delaware corporation, Appellee.
    Nos. 82-52, 83-118 and 83-119.
    District Court of Appeal of Florida, Second District.
    May 25, 1984.
    Rehearing Denied Aug. 17, 1984.

      Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, P.A., Tampa, for appellant AC Associates.
    David T. Knight and Jeanne M. Trudeau of Shackleford, Farrior Stallings & Evans, P.A., Tampa, for appellants Frank Guinta, Mac A. Greco, Jr., Josephine Greco and Eugene S. Greco, as co-personal representatives of the Estate of Mac A. Greco, Sr., et al.
    Michael L. Kinney, Tampa, for appellant John Greco.
    Bennie Lazzara, Jr., Tampa, for appellee Eugene S. Greco as co-personal representative of the Estate of Mac A. Greco, Sr., and Annie B. Greco as personal representative of the Estate of Joseph Greco.
    David T. Knight and Jeanne M. Trudeau of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellee Frank V. Guinta; Frank Ragano, Tampa, for appellee John Greco.
    Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, P.A., Tampa, for appellee M-W Properties Corp.
   LEHAN, Judge.

This consolidated appeal involves two cases testing, on allegations of changed circumstances, the continued validity of a parking agreement reciprocally affecting two adjacent parcels of real property. The validity of the agreement is challenged in one case by the holder of contractual rights to purchase one of the parcels and in the other case by the legal title holder of that parcel. The continued validity of that agreement is urged in both cases by owners of the other parcel.

In appeal number 82-52, brought by the holder of contractual rights to purchase one of the parcels, the trial judge declined to cancel or modify the agreement. In appeals numbered 83-118 and 83-119 (which are both from the same case and which are hereinafter referred to as “the second case”), brought by the legal title holder of the parcel which the plaintiff in case number 82-52 contracted to purchase, another trial judge modified the agreement to reduce its burden on the parcel. The trial judge in the second case, in the alternative, held that, if a court of appeal decides the judge lacked authority to so modify the agreement, portions of the agreement would be cancelled.

We affirm case number 82-52. We reverse the second case. We hold that the plaintiff in neither case met its burden of proof under established legal criteria for the cancellation of restrictions of the type involved here.

In 1959 Gulf Supermarkets, Inc. (“Gulf”), the owner of a parcel of real property in Hillsborough County, conveyed more than half of the parcel to Montgomery Ward & Company, Inc. (“Ward”). In conjunction with that sale, Gulf and Ward entered into a reciprocal parking agreement dated February 18, 1959, which was recorded in the public records of Hillsbor-ough County. The agreement stated that it would constitute a covenant running with the land for fifty-five years from the date of the conveyance to Ward. The two parcels resulting from the conveyance will hereinafter be referred to as “the Gulf parcel” and “the Ward parcel.”

Relevant portions of the agreement included the following: Paragraph 1 provided that Gulf and Ward would each have a nonexclusive right to use the driveways, parking areas, sidewalks, pedestrian malls and other common areas that were to be placed on both parcels. Paragraph 7 provided that each party agreed to pave and grade the parking area on its respective portion of the property. In paragraph 9 each party agreed that the parking areas on its parcel would be at least three times the gross floor area of all buildings on that parcel.

After the agreement was executed, Gulf constructed and operated on its parcel a supermarket which is now operated under lease to a third party. Later another portion of the parcel was leased to another third party for the operation of a drug store. The present owners of the Gulf parcel will hereinafter be referred to as “the Grecos.” Ward constructed and operated a retail department store on its parcel. In March, 1960, Ward conveyed the Ward parcel to a wholly-owned subsidiary now known as M-W Properties (“M-W”).

On December 15, 1980, approximately two months after the Ward store was closed, M-W entered into an agreement to sell the Ward parcel. The purchase rights under the contract were eventually assigned to AC Associates (“AC”), a Florida partnership. Closing of the sale was delayed while efforts were made to remove the covenants, imposed by the foregoing reciprocal parking agreement, from the parcel. Those efforts culminated in the predecessor-in-interest of AC filing a declaratory judgment action against the Gre-cos seeking a determination of whether the reciprocal parking agreement contained enforceable restrictive covenants affecting the Ward parcel and, if so, to have the agreement modified and the covenants can-celled. AC plans to build on the Ward parcel an office-retail-hotel complex. AC asserts that to fulfill its plans and to comply with the agreement’s requirement that the parcel contain three times as much parking space as building floor space would unreasonably require construction of six twenty-story parking garages. The findings of the trial judge in the second case indicate that AC has no obligation to close the purchase from M-W. It was on that basis that the trial judge ruled that M-W, as owner of the property, had standing to contest the restrictions. Apparently, if AC chooses not to close, it will lose certain deposit monies.

As stated above, the first suit to modify or cancel portions of the reciprocal parking agreement (case number 82-52) ended in a final judgment denying relief. AC’s predecessor-in-interest argued in that case that substantial changes in the character of the neighborhood surrounding the property justified modification or cancellation of the restrictive covenants. The trial judge, citing Allen v. Avondale Co., 135 Fla. 6, 185 So. 137 (1938), concluded that changes in a neighborhood sufficient to justify modification or cancellation of a restrictive covenant must have taken place after a complainant acquired title to the property or entered into an agreement to purchase the property, particularly where the complainant had actual knowledge of the restrictive covenant at the time it acquired the property. The court ruled that the changes in the neighborhood surrounding the parcel in question had occurred prior to the time AC’s predecessor-in-interest had entered into the 1980 agreement to purchase the property from M-W. Therefore, the court concluded that no modification or cancellation of the restrictive parking agreement was appropriate. AC’s predecessor-in-interest appealed that judgment to this court.

While the first appeal was pending, M-W filed suit against the Grecos to modify or cancel portions of the reciprocal parking agreement. This second case alleged that changes in the character of the neighborhood had occurred during M-W’s ownership of the property. The trial court in the second case agreed with M-W and, as stated above, entered a final judgment modifying the agreement for the remainder of its term and removing the provisions which required that parking areas be three times the gross floor area of all buildings on the parcels. The court substituted instead various detailed parking provisions, specifying the amount of parking to be made available depending upon the amount of retail and office space and number of hotel rooms constructed on the parcel. The trial court also limited to 100 spaces the parking on the Ward parcel available to the Gulf parcel, and, among other things, specified the sizes of parking spaces on the Ward parcel. The final judgment provided that, if a court of appeal determined that the trial court did not have the power to modify the agreement, then the trial court declared null and void certain provisions of the reciprocal parking agreement affecting the Ward parcel and establishing a parking ratio and a right to park thereon. The Grecos appealed that judgment to this court.

The main issue on appeal is whether the parking agreement restrictions can properly be judicially modified or can-celled. We hold that they cannot be. In outlining our reasoning further below, we refer to the contentions of the parties as to whether easements or restrictive covenants, or both, are involved. We explain our belief that the parking agreement restrictions cannot be cancelled or modified, whichever label — easements or restrictive covenants — is placed upon various of the agreement’s provisions. We point out the contentions of M-W as to the types of changed conditions on which it relies to argue for cancellation or modification of restrictions, and why, under applicable legal tests, those types of changes do not, in our view, justify the relief awarded in the second case. We point out that we do not believe that in this case a court should undertake to reshape the contractual rights and obligations of the parties and that, regardless of arguments in favor of the reasonableness of the type of modification which was judicially made, the precedent which would be set by such judicial involvement in this case in a basically private contractual process would be inappropriate. We further note that the problems which M-W and AC seek to overcome through the suits to dispose of present parking restrictions appear to be fundamentally brought about by AC’s plans for a particular type of office-retail-hotel development on the Ward parcel, not by the changes in the neighborhood and industry practices concerning retail parking which M-W and AC point to. The law does not permit cancellation of property restrictions for the purpose of accommodating the best or most profitable use of a particular piece of property affected by the restriction. All of the parties involved, AC, M-W, and the Grecos, acquired their interests with full knowledge of the parking agreement.

The agreement gives the Gulf parcel parking rights over all of the parking on the Ward parcel. But how much of the Ward parcel is available for parking is governed by the covenant as to the three-to-one parking-to-building ratio. The Grecos argue that relevant provisions of the agreement create easements which cannot properly be changed, as did the trial judge in the second ease, so as to limit the Gulf parcel to 100 parking spaces on the Ward parcel. In response, M-W refers to cases, including Crutchfield v. Sebring Realty Co., 69 So.2d 328 (Fla.1954), and Costin v. Branch, 373 So.2d 370 (Fla. 1st DCA 1979), in support of its argument that rights of easement holders (the Grecos) over a ser-vient estate (the Ward parcel) can be limited so that each party might reasonably enjoy its respective property rights. The cited cases, however, stand for the proposition that “the burden [of an easement] upon a servient estate must not be increased to any greater extent than reasonably necessary and contemplated by the parties at the time of [its] initial acquisition.” Crutchfield, 69 So.2d at 330. The decisions in those cases did not authorize a judicially-directed lessening of a burden upon a servient estate, as compared to that originally contemplated by the parties. Such a lessening of that burden was the result of the trial judge’s decision in the second case which modified the agreement and reduced the parking spaces on the Ward parcel available to the Gulf parcel. But “the legal extent of the right ... must ... be ascertained from the intention of the parties at the time when the right was created.” Crutchfield, 69 So.2d at 330. There was no evidence from which it could have been determined in the second case that the lessening of the Gulf parcel’s parking rights on the servient estate (the Ward parcel) was the intention of the parties to the agreement.

M-W also argues that the parking obligations include restrictive covenants running with the land and that changed circumstances justified the trial judge’s modification or cancellation of the requirements, including the requirements that parking spaces on the Ward parcel be maintained in the foregoing three-to-one ratio. M-W ably argues that current circumstances, as compared to those existing at the time the agreement was entered into, render such restrictive parking covenants inequitable and unreasonable. However, in our view the restrictions cannot properly be can-celled or modified under the law relating to restrictive covenants. Restrictive covenants may well be cancellable under less stringent standards than those applicable to cancellations of easements. But since we find that the covenants in the parking agreement were not properly cancellable under the law relating to either cancellations of easements or restrictive covenants, we need not deal in any detail with legal niceties which may surround distinctions between easements and restrictive coven-antsapplied to different provisions in the parking agreement.

The evidence presented by M-W was that substantial changes had occurred in the neighborhood surrounding the subject property. There was testimony that in 1959 when the parking agreement was executed the surrounding neighborhood was primarily residential and that since that time the use and character of that neighboring land has shifted to primarily commercial. The testimony was also that since 1959 urban planning and land-use concepts have changed and, with the cost of land and transportation now higher, freestanding department stores (such as that built on the Ward parcel) are no longer the most profitable.

There was further expert testimony that certain industry standards for parking have changed substantially since 1959. The ratio required by the 1959 agreement equals approximately ten parking spaces per 1,000 square feet of store space. There was testimony that industry standards for parking requirements currently range between 4 and 5.5 parking spaces per 1,000 square feet of retail space. The Ward company policy has abandoned the old parking standard which led to the 1959 agreement and now uses a formula of between 4.5 and 6 parking spaces per 1,000 square feet of retail store area. M-W argues that the change in the characteristics of the neighborhood as well as the change in standards for parking spaces show that the 1959 parking restrictions are an unnecessary and oppressive burden on the Ward parcel.

However, in an action to cancel a restrictive covenant the test is whether or not the covenant is valid on the basis that the original intention of the parties can be carried out despite alleged materially changed conditions or, on the other hand, whether the covenant is invalid because changed conditions have frustrated the object of the covenant without fault or neglect on the part of the party who seeks to be relieved from the restrictions. See Barton v. Moline Properties Inc., 121 Fla. 683, 164 So. 551 (1935). If a restriction on the servient estate was for the benefit of, and is still of substantial value to, the dominant estate, it will be enforced regardless of changed conditions. Barton, 164 So. at 557; Acopian v. Haley, 387 So.2d 999, 1001 (Fla. 5th DCA 1980). Although a reciprocal parking agreement is involved here, these appeals deal primarily with parking restrictions burdening the Ward parcel and the asserted benefit to the Gulf parcel. Therefore, for present purposes we have treated the Gulf parcel as the dominant estate and the Ward parcel as the servient estate. It does not appear from the record that M-W satisfied its burden of proof under the foregoing test and that the parking agreement is, or necessarily will be, of no substantial benefit to the Gulf parcel, however excessive in scope it may be for the Ward parcel in relation to present industry standards for retail parking.

Unlike numbers of other cases which have cancelled restrictive covenants, the situation before us is not one in which residential property is burdened with a residential type of covenant which restricts commercial development and renders the property virtually useless when the character of the surrounding neighborhood has changed from residential to commercial. In this case, the subject property was a proposed commercial development at the time of the 1959 agreement and continues to be of commercial use. There has been no showing that commercial development of the Ward parcel was not foreseeable and, in fact, foreseen at the time of the parking agreement. See Wahrendorff v. Moore, 93 So.2d 720, 723 (Fla.1957). We do not believe the burgeoning commercial development the evidence shows to have existed in the surrounding area is basically determinative of whether the parking restriction is unreasonably burdensome by reason of changed circumstances. The parking agreement and the changes in the surrounding neighborhood do not prevent commercial use of the property. Nor is it clear in the final analysis how, if at all, the changes in the character of the surrounding neighborhood — which are strongly asserted by M-W as grounds for relief — can be the cause of the current problem with the parking-to-building area ratio which M-W wants cancelled or modified.

As to the alleged changes in industry practice regarding the amount of parking space needed for retail stores, we recognize M-W’s argument that the typical amount of land devoted to retail parking today is approximately one-half of that required by the 1959 agreement. If the parties were negotiating a reciprocal parking agreement today, presumably they would include a lower ratio of parking area to store space. However, the issue before us is not what the parties would do today, but rather whether the parking restrictions remain substantially capable of serving purposes intended when the restrictions were imposed, e.g., apparently to provide the Gulf parcel with parking areas on the Ward parcel and to serve to protect the Gulf parcel from a potential overflow of cars from the Ward parcel. The record does not show that the parking restrictions will fail to serve their purposes. It only shows that under present circumstances the scope of the restrictions is greater than necessary for those purposes.

As to one of those purposes, M-W argues the evidence shows that the parking on the Ward parcel is of no use to the Gulf parcel because the customers of the retail establishments, a Kash ’n Karry supermarket and an Eckerd’s drugstore which are presently lessees on the Gulf parcel, do not need and have never needed extra parking on the Ward parcel. The Grecos cite testimony that removal of the restrictions would harm the Gulf parcel. However, regardless of the accuracy of the conflicting contentions under present conditions, the terms of the reciprocal parking agreement continue in effect for thirty more years. The basic terms of the Kash ’n Karry and Eckerd’s leases will expire at different times substantially prior to the expiration' of the parking agreement. M-W has not established that the parking rights given by the agreement to the Gulf parcel are not of benefit, and cannot during the term of the agreement be of benefit, to the Gulf parcel.

The trial judge in the second case, as the first type of alternative relief under the final judgment, modified the agreement and, among other things, provided that 100 parking spaces on the Ward parcel be made available to the Gulf parcel, rather than cancelling portions of the agreement as provided in the second form of alternative relief. A conclusion which can be drawn is that the trial judge thereby recognized significant continuing benefit to the Gulf parcel from the agreement and indicated a desire to not take away from the Gulf parcel all such benefit. The record otherwise shows the trial judge’s definite concern with providing parking benefits on the Ward parcel to the Gulf parcel.

The other of the foregoing indicated purposes would also seem to be of actual or potential importance. Benefit to the Gulf parcel from the parking ratio imposed on the Ward parcel appears to be that the large ratio of parking space to store space helps to ensure that businesses on the Ward parcel will have sufficient parking for their needs so as to reduce potential for their customers to park on the Gulf parcel. There is no evidence that this aspect of the reciprocal parking agreement would not be of continuing potential, or actual future, benefit to the Gulf parcel. We do not believe it has been established that available parking areas on the Ward parcel will render inapplicable the foregoing benefit to the Gulf parcel. Whether or not there will be ample parking for immediate needs on the Ward parcel under the current plans (which presumably could be changed) for the new development of that parcel, there appears to be no assurance that future circumstances will result in ample parking on the Ward parcel under either that development or some other conceivable use of the Ward parcel during the term of the agreement. Potential for the future is a proper consideration in evaluating the benefit of a restrictive covenant to real property. See Sinclair Refining Co. v. Watson, 65 So.2d 732 (Fla.), cert. denied, 346 U.S. 872, 74 S.Ct. 121, 98 L.Ed. 381 (1953). In its Sinclair opinion the Florida Supreme Court included at least two statements pertinent to the case at hand:

[T]he public policy of this state and this nation favors the fullest liberty of contract and the widest possible latitude in the disposition of one’s property, so long as no disposition is sought to be made contrary to public policy or express law and so long as the restraint is within reasonable bounds.

Id. at 733. The restriction in the case at hand was not contrary to law or policy and there is raised no question as to its reasonableness when it was created.

While the property [restricted in Sinclair for a right-of-way] may not be immediately needed, we cannot go so far as to say that it will never be needed in the future.

Id. at 734.

To say that there will never be any benefit (or any more benefit) to the Gulf parcel from the restrictions would require judicial prognosticating which we believe is not the province of a court under facts like those in this case. In a situation involving a contract for the future, entered into for valuable consideration, the prognostication responsibility is, as a general rule, that of the contracting parties. There is no showing that M-W’s parent corporation at the time of the agreement in 1959 was not, or could not have been, as fully informed as were the Grecos’ predecessors. Also, AC was aware of the existence of the agreement when it acquired its contractual interest in the property.

There was additional evidence in the second case that Eckerd’s and Kash ’n Karry expressed concurrence with the type of modification of the parking agreement affected by the final judgment in that case which, among other things, provided 100 parking spaces on the Ward parcel for the Gulf parcel. It appears that that concurrence was given in consideration of monies paid to those lessees and of assurances to them of the type which were incorporated into the final judgment in the second case in the form of modifications to the agreement, e.g., the foregoing 100 parking spaces. The record shows that the trial judge in his final judgment modifying the parking agreement wanted to protect the interests of those lessees by additionally ensuring that there would be conveniently-located parking spaces available for them on the Ward parcel. But of at least equal importance are the expiration dates of those leases, one expiring in approximately one year and the other in 1997, whereas the parking agreement’s term continues until 2011. Unexercised options to renew seem irrelevant because there is no obligation to renew and no evidence that there will be renewal. In fact, the Grecos assert to the contrary, and the trial judge in the second case found that the Grecos, as owners, had standing to contest the cancellation and modification of the agreement. Negotiations between M-W or AC and those lessees presently occupying the Gulf parcel should not control the rights of the owners of the Gulf parcel, especially when ownership rights are affected long after those lessees apparently may cease to have any interest at all in the Gulf parcel.

The trial judge in the second case, finding that the modification made by the final judgment to the parking agreement would not hurt the Gulf parcel, gave material weight to the concurrence of those lessees to the modification. However, the issue is not whether a judicial modification of the agreement would now hurt the Gulf parcel or whether it would, as it does, give benefit to the Gulf parcel. The issue is whether the unmodified agreement continues to provide benefit to the Gulf parcel. See Barton v. Moline Properties, Inc., supra. Again, that it was felt necessary to provide continuing parking benefits to the Gulf parcel and its present lessees in the modification of the agreement contained in the final judgment in the second case supports the position that the agreement, negotiated by the parties’ predecessors, continues to provide significant benefit to the Gulf parcel. If there was no continuing benefit to the Gulf parcel, there would have been no reason for the modification to ensure benefit to the Gulf parcel.

To the extent the agreement may be termed unreasonable for the currently-planned use of the Ward parcel in the sense of requiring parking areas unnecessarily broad in scope, any such unreasonableness was contractually, and not judicially, created. The role of the courts is not to make an otherwise valid contract more reasonable or less unreasonable from the standpoint of one contracting party. Cf. 11 Fla.Jur. Contracts § 63, saying:

It is fundamental that adult persons suffering from no disabilities have complete freedom of contract. The mere fact that the consideration is inadequate does not render a contract nudum pac-tum, for it is not essential that the consideration be adequate in point of value, since the law cannot decide upon this matter.
The court will not ordinarily inquire into the adequacy of the consideration. And the court will not interfere with the facility of contracting and the free exercise of the will and judgment of the parties by not allowing them to be sole judges of the benefits to be derived from their bargains, provided there is no incompetency to contract, and the agreement violates no rule of law. As the law will not stop to scrutinize the amount of benefits conferred upon one party, so neither will it scan the extent of trouble, loss, or obligation the other party has subjected himself to.

As shown by the Barton and Acopian citations, supra, the foregoing types of concepts apply to a contractual covenant affecting real property where the claim of one contracting property owner of lack of benefit to the other contracting property owner from the covenant during its remaining duration has not been shown. In fact, in this case M-W has not established that whatever benefit, however potential, which has ever existed for the Gulf parcel from the agreement is now significantly different from or less than the situation at the time the agreement was entered into. The general rule is that contractual property rights are subject to change by the mutual consent of the contracting parties, not by the courts. See, e.g., Kotick v. Durant, 143 Fla. 386, 196 So. 802, 806 (1940); Florida Power Corp. v. Hicks, 156 So.2d 408, 410 (Fla. 2d DCA 1963), cert. denied, 165 So.2d 177 (Fla.1964).

We recognize that the trial judge in the second case carefully undertook to do equity between the parties. Certainly that undertaking was meticulously implemented. However, the effect of the final judgment appears as a judicial renegotiation of the agreement for the parties which we cannot agree in these circumstances comports with established law. Nor are we convinced that even if we felt entitled under existing law to affirm the second case, sound legal precedent would thereby be established for other similar eases in the future. We have in mind such things as a basic purpose of the law being to provide stability and certainly through consistent application of legal principles and the uncertainty which would result for other similarly situated property owners if we affirmed the second case. Surely the degree of actual or potential benefit from many property restrictions may vary throughout their durations. Substantial uncertainty for property owners as to rights and obligations would, we believe, result under circumstances like this if courts, at the instance of a suing property owner and over the objection of adjacent property owners, could modify or cancel a commercial (or residential) property restriction on the basis that it is unreasonable by reason of a different type of commercial (or residential) use planned by the suing property owner. This would especially appear to be the case when, as here, the commercial uses of the adjacent property, which is the only other property covered by the restriction, have remained the same. As a general rule, property owners accommodate to property restrictions, not vice versa.

There are surely numerous property ownership situations in which there are grounds for a property owner to contend that an otherwise valid contractual commercial restriction has become less desirable or even undesirable with the passage of time. There may well be even more such comparable situations for residential properties affected by valid restrictions. Under the law those situations have in common with the case before us the generally applied concept that a new property use which is planned and which is of the same character (e.g., commercial or residential) as the use at the time the restriction is agreed to should be accommodated to the restriction even if at greater cost than would be the case without the restriction, rather than accommodating the restriction to the new use.

To put this type of situation in a perhaps more generally understandable context, we could use the more or less comparable analogy of property restrictions which may affect the owner of residential property on which a building or a building modification is planned. The expense of accomplishing a change in a house, or of the building of a new house, on residential property on which there is a certain residential restriction may be greater than it would be without the restriction. But that in itself would not justify judicial cancellation or modification of the restriction even if, under new standards or construction techniques for houses, the change or new house which would be inconsistent with the restriction would be better or of more value to the property owner. Whether or not the effect of modifying or cancelling a restriction would be to produce more value to the property of the owner whose predecessor contracted for the restriction and who seeks the change is not legally determinative.

We do not mean that we find the arguments of M-W and AC to be unreasonable regarding current economic factors affecting the Ward parcel. In fact, it is the persuasiveness of those arguments as to the reasonableness of the action by the able trial judge in the second case which makes this a difficult matter on appeal. We only mean that we believe those arguments must be basically for the consideration of the parties among themselves at the time the agreement is made by the original contracting parties, at the time the obligations of the agreement are undertaken by their successors-in-interest, and now. What is now, or in the long run, best for the Gulf and Ward parcels together, in terms of available parking, is something which we do not feel, under the circumstances of this case, should be our province to say, as long as benefit to the Gulf parcel from the agreement during its duration is not shown to have ended.

M-W, arguing that the parking restrictions are an oppressive burden on the Ward property, cited evidence that, under the plans for the proposed office-retail-hotel complex to be built on that property, the three-to-one parking ratio would require the construction of six twenty-story parking garages. While this would appear unreasonable, any such unreasonableness would seem to be due to the nature and size of the planned complex. M-W has not established that the Ward property cannot be commercially used in other ways while still affected by the obligations and rights of the reciprocal parking agreement. M-W points to testimony which it presented to the effect that the Ward parcel, as affected by restrictions in the parking agreement, lacked value. However, whether or not relative values of the servient estate with and without a restriction are determinative under the foregoing tests of Bartin v. Moline Properties, Inc., there was also testimony on behalf of M-W that the property was not valueless, and the trial judge in the second case made no finding that the Ward parcel, as affected by the parking agreement, lacked value. In fact, the trial judge, in sustaining an objection to testimony about other potential uses of the Ward parcel with the restrictions in effect, expressed the belief that M-W was not contending, nor could it validly contend, that there were not other such uses for the Ward parcel. M-W argued at the trial that the Ward parcel, restricted by the agreement, cannot be put to its highest and best use. Its argument on appeal appears to be to the same effect. For example, M-W argues that free-standing department stores (the type contemplated by the three-to-one parking-to-building ratio) are no longer the most profitable and that the Ward store before it closed was only marginally profitable. Yet the fact apparently is that a profitable store was operated on the Ward parcel, with the restrictions, shortly before AC contracted to purchase the parcel. A highest and best use criterion is not the correct test by which to determine the continued validity of a restrictive covenant.

The trial court found that the highest and best use of appellees’ property would be the proposed condominium use, but, while this may be a good test in other situations, it is not the correct test in determining continued validity of restrictive covenants.

Acopian, 387 So.2d at 1002.

Thus, while M-W has shown changed circumstances, it has failed to meet its burden of showing that material change has destroyed all substantial benefit of the restriction and has defeated under present or future circumstances the purpose of restrictions under the reciprocal parking agreement.

We find no merit in the remaining points raised in these appeals. Accordingly, the final judgment in appeal number 82-52 is affirmed. The final judgment in appeals numbered 83-118 and 83-119, modifying the reciprocal parking agreement or, in the alternative, cancelling portions of that agreement, is reversed, and that cause is remanded for entry of judgment in favor of defendants.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

OTT, C.J., and SCHOONOVER, J., concur.

      . In formulating the modifications to the agreement the trial judge consulted with the attorneys for M-W and AC and, although stating that the Grecos did not have the option to either agree to the modifications or abide by a cancellation, he did ask to receive their preference and delayed the final judgment until receiving their response. They declined a response to avoid waiver of rights. The record specifically reflects the judge’s desire to not cancel, but to modify, the agreement.


author: PER CURIAM.

text:
    Frank BASSO and David Brand, Appellants, v. Joseph A. LUGO, Jr., Appellee.
    No. 83-300.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Rehearing Denied Aug. 15, 1984.
    Burton & Fisher and Ann Mason Parker, Miami, for appellants.
    Goldman, Leibell & Kimmelman and Ned Kimmelman, Hollywood, for appellee.
    Before NESBITT and FERGUSON, JJ., and FERRIS, JOHN G., Associate Judge.
   PER CURIAM.

Affirmed. DeMaris v. Asti, 426 So.2d 1153 (Fla. 3d DCA 1983); Lauderdale v. P. Tavilla Company, Inc., 329 So.2d 363 (Fla. 3d DCA 1976).