text:
    Homer T. MAAS, Appellant, v. Sandra Ann MAAS, Appellee.
    No. 83-105.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 1983.

      Donald T. Franke, Naples, for appellant.
    Tom Grogan, Naples, for appellee.
   RYDER, Judge.

Homer T. Maas appeals from an order terminating his obligation to pay rehabilitative alimony prospectively from the date he filed his motion to terminate that alimony, and requiring him to pay rehabilitative alimony arrearages to his former spouse. We affirm.

The Maas’ were married on May 28,1960. They lived together until either September or October 1980. There were two children born of the marriage, and a son was still a minor (although soon to be emancipated) at the time the petition for dissolution of marriage was filed. Mr. Maas filed the petition on October 17, 1980, seeking only a dissolution of marriage and any appropriate relief deemed by the court to be proper. Mrs. Maas filed a counter-petition for dissolution in which she stated the parties had acquired personal property during the course of the marriage and had already divided that property equally. She requested that the parties’ debts and obligations acquired during the marriage be borne fully by Mr. Maas. She also requested that she be awarded both temporary and permanent alimony because of insufficient funds to provide for her own needs and her husband was capable of providing such support. Lastly, Mrs. Maas requested joint custody of the minor son.

The final hearing upon the petition and counter-petition was held on April 8, 1981. The court subsequently entered a final judgment, the contents of which the parties had agreed upon. In the final judgment, the trial court granted Mr. Maas custody of the minor son. The court ordered Mr. Maas to pay Mrs. Maas “$150.00 per week for 104 weeks commencing April 17, 1981 as rehabilitative alimony.” The final judgment did not speak of any condition which could cause termination of rehabilitative alimony during the 104-week period. No other type of alimony was awarded Mrs. Maas. Lastly, the court noted that matters pertaining to the property rights of the parties had been amicably settled by an equal division of the personal property.

On May 1,1981, approximately three weeks after the hearing, Mrs. Maas remarried. Thereafter, Mr. Maas discontinued payment of rehabilitative alimony without first seeking a court order. On January 18, 1982, Mrs. Maas moved the court to declare Mr. Maas in contempt for failure to pay the rehabilitative alimony that was required in the final judgment. Mr. Maas responded on May 28, 1982, by filing a motion to terminate his obligation to pay rehabilitative alimony alleging that his former wife had remarried and had “immediately upgraded herself economically to the point where rehabilitation was no longer needed.” Mr. Maas attached an affidavit thereto alleging that his former wife no longer had need for rehabilitative alimony because she had improved her job status from a clerk in a florist shop to a medical receptionist; that she had ownership, control, or possession of a new automobile; and that she had also gained an equity interest in a home which was shared with her new husband. A copy of a warranty deed reflecting his former wife and her new husband as owners of the home was also attached to the motion.

After a hearing on the parties’ motions, the court entered an order granting Mr. Maas’ motion to terminate rehabilitative alimony and setting the effective date of that termination as May 27, 1982, the date Mr. Maas filed the motion to terminate alimony. The court in its order required Mr. Maas to pay the $7,575.00 owed in arrearages, payable $150.00 per week until the entire amount had been discharged. It is from this order that Mr. Maas appeals.

Mr. Maas contends that he is entitled to retroactive relief of his obligation effective as of the date of the remarriage upon the finding by the trial court that his former spouse is no longer in need of rehabilitative alimony under the circumstances. We disagree with that contention.

We first point out that this is not a case where the parties agreed at the time the final judgment was entered that the rehabilitative alimony payments would automatically terminate upon remarriage of the wife. See Friedman v. Schneider, 52 So.2d 420, 421 (Fla.1951). Rather, this case involves facts which must be examined in light of our decision in Frye v. Frye, 385 So.2d 1383 (Fla. 2d DCA 1980), since our legislature still has not addressed this issue.

In Frye, this court distinguished between the purposes behind the granting of permanent and rehabilitative alimony and held a trial court must not automatically terminate rehabilitative alimony upon remarriage of the spouse receiving that alimony. Id. at 1389. Cf. Kissinger v. Mason, 436 So.2d 1049 (Fla. 1st DCA 1983). We continue to adhere to our position in Frye wherein our learned colleague, Judge Campbell, so carefully explained:

[S]ince rehabilitative alimony is paid for a specific purpose not necessarily related to the recipient spouse’s remarriage, it would seem to follow that it should not necessarily be terminated upon remarriage.
The ultimate purpose of rehabilitative alimony is rehabilitation, and the question upon the recipient’s remarriage should be whether that event alone has served the rehabilitative purpose.
However, this opinion does not preclude a spouse who is paying rehabilitative alimony from pleading and proving that a remarriage or other changed circumstances of the recipient spouse has eliminated or altered the need for further rehabilitative alimony. Once any such evidence other than the mere remarriage has been presented, the burden of proof of continued need should shift to the recipient spouse since the evidence as to the recipient spouse’s economic circumstances or those of the newly acquired spouse is peculiarly within his or her knowledge and may not be readily available to the payor spouse.

Id. at 1389-90. Specifically, the Frye court upheld the trial court’s refusal to disturb the original judgment because it found that the payor spouse had failed to plead and prove any changes in the payee spouse’s circumstances other than the “mere fact of her remarriage.” Id.

We note the effect of Frye is to place a petition to terminate rehabilitative alimony because of remarriage of the payee .spouse in the same position as a petition to modify alimony pursuant to section 61.14, Florida Statutes (1981). This is because the trial court is required in both situations to consider “changed circumstances” before disturbing an existing order. Frye at 1390; § 61.14(1). Thus, a payor spouse seeking to terminate rehabilitative alimony because of the remarriage of his former spouse must file a petition in accordance with the provisions of section 61.14. In this case, Mr. Maas filed a sufficient petition, and we are of the view that the record reveals a sufficient basis to support the trial court’s order terminating Mr. Maas’ obligation to pay future rehabilitative alimony.

Next, we address whether the trial court, after finding Mrs. Maas to be rehabilitated under the circumstances, erred in giving the order only a prospective effect and requiring Mr. Maas to pay the arrearages. The Frye court was not presented with this issue; however, for the following reasons, we hold the trial court ruled correctly that Mr. Maas was not entitled to any retroactive relief for the period prior to the time he filed his motion.

First, as stated previously, the final judgment does not provide for automatic termination prior to the end of the payment period. Friedman at 421. Such a provision allows a payor spouse to end payments immediately upon the occurrence of the agreed upon event because the parties contemplated such a result, and, thus, they and the court would already have notice that the obligation was to end. Second, Mr. Maas did not plead and attempt to show that Mrs. Maas fraudulently concealed the fact of her remarriage to prevent the filing of a petition to terminate the alimony. Such a showing by payor spouse might entitle him to retroactive relief under general equity principles. Therefore, the outcome of this case must turn upon the law applicable when these two factors are not present.

In Van Loon v. Van Loon, 132 Fla. 535, 182 So. 205 (1938), the supreme court interpreted the then applicable statutory provisions regarding modifications of alimony (which is very similar to section 61.14) and held:

[Wjhere past-due installment payments of alimony under a valid judicial decree remain unpaid, they do constitute vested property rights of which the party cannot be deprived except by due process of law. [Citations omitted.]
The statute operates prospectively to authorize modifications of alimony decrees as to future payments from the date of application, to the extent authorized by valid provisions in the statute [or as authorized by Frye], even though the court had not expressly reserved authority to change or modify a decree when it was rendered.

182 So. at 208. See Bernst v. Cotter, 256 So.2d 529 (Fla. 4th DCA 1972). See generally Annot., 48 A.L.R.2d 270, 291-93, 525 (1956). Cases decided since the inclusion of rehabilitative alimony in the dissolution of marriage statute have continued to apply this principle. See Thomas v. Thomas, 352 So.2d 564 (Fla. 2d DCA 1977); e.g., Roffe v. Roffe, 404 So.2d 1095 (Fla. 3d DCA 1981). Thus, we hold a payor spouse will be required to pay any arrearages due until the time an appropriate petition is filed. This is so even though a trial court should, after a petition is properly filed, eventually determine that the circumstances surrounding a payee spouse’s remarriage support the termination of rehabilitative alimony. Clearly, our holding promotes the efficient administration of justice and prevents resort to potentially disruptive self-help means in an attempt to otherwise extinguish an existing court-ordered obligation to pay alimony.

Accordingly, the trial court committed no error in making the order terminating Mr. Maas’ obligation prospective from the date he filed his petition and in requiring him to pay the arrearages due his former spouse.

AFFIRMED.

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


source: Caselaw Access Project

author: GRIMES, Acting Chief Judge.

license: Public Domain

text:
    Julius W. LOWE, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-201 to 83-204.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 1983.
    Alfred J. Ivie, Jr., Dade City, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

These appeals involve the effect of an order determining incompetency to stand trial upon the speedy trial rule.

Appellant was arrested on January 19, 1981, for sexual battery of a five-year-old child. On February 18, 1981, the state attorney filed an information against him for handling and fondling the child (Cir.Ct. case no. 81-122; App.Ct. case no. 83-202). On March 25, 1981, the appellant was indicted for sexual battery of the same child though at a different time (Cir.Ct. case no. 81-121; App.Ct. case no. 83-201). On the same date the appellant was also indicted for sexual battery of two other children (Cir.Ct. case no. 81-485; App.Ct. case no. 83-203) (Cir.Ct. case no. 81-486; App.Ct. case no. 83-204). He was arrested on the latter two charges on April 1, 1981.

In case no. 81-122 appellant filed a motion for a sanity evaluation on the premise that he was not mentally competent to stand trial. Following an evaluation the court determined appellant to be incompetent to stand trial and entered an order of commitment on April 10, 1981. On April 14, 1981, appellant then filed in case nos. 81-121, 81-485 and 81-486 a motion to determine his incompetency to stand trial and attached thereto a copy of the order of commitment in case no. 81-122. The court granted these motions on April 28, 1981, and entered orders of commitment in the three remaining cases on May 7, 1981.

On September 2, 1981, the court found appellant competent to stand trial in all four cases and set a trial date of November 5,1981. Appellant then successfully obtained an order suppressing his confession in all four cases. The state appealed the order of suppression in these cases which by now had been formally consolidated. The trial was postponed because of the appeal, but the state did not obtain an order extending the speedy trial time. On January 18,1982, the appellant filed a motion for discharge in case nos. 81-121 and 81-122. He filed a similar motion on February 1, 1982, in case nos. 81-485 and 81-486. The court denied the motions for discharge.

Thereafter, the jury found appellant guilty as charged in case nos. 81-122 and 81 — 486 and convicted appellant of the lesser included offense of attempted sexual battery in case no. 81-121. In case no. 81-485 appellant pled nolo contendere to the charge preserving his right to appeal the denial of his motion for discharge. The court sentenced appellant to concurrent terms of life imprisonment in case nos. 81-485 and 81-486. Appellant was given a concurrent sentence of thirty years in case no. 81-121, but he was not sentenced in ease no. 81-122.

Appellant argues that in each case his speedy trial time was tolled only for the period between the date of the order of commitment and the date he was determined competent to stand trial. If the speedy trial time had been computed upon this premise, then more than 180 days would have elapsed from the date of his arrest to the date of his motion for discharge in all four cases. The trial court denied appellant’s motion for discharge on the theory that the granting of appellant’s motion for a determination of incompetency to stand trial was equivalent to the granting of a motion for continuance, which under Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), constitutes a total waiver of the speedy trial rule.

Admittedly, an order determining that a defendant is incompetent to stand trial results in postponing the trial. However, Florida Rule of Criminal Procedure 3.214(d) specifically addresses the effect of an order of incompetency on the speedy trial rule:

(d) The provisions of Rule 3.191 shall no longer apply to any defendant adjudged incompetent to stand trial until, in the case of a defendant whose charges have not been dismissed pursuant to these rules, the date the defendant is again adjudicated competent to stand trial or, in the case of a defendant whose charges have been dismissed without prejudice, the date the charges are again filed.

To hold that an adjudication of incompetency constitutes a complete waiver of rule 3.191 would fly in the face of the tolling language of rule 3.214(d).

Therefore, we conclude that the computation of speedy trial time in each case must be determined by deducting the length of time the speedy trial rule was tolled by the order of incompetency from the number of days between appellant’s arrest and his motion for discharge. Under any interpretation of the length of time attributable to appellant’s incompetency, more than 180 days had elapsed in case nos. 81-121 and 81-122 when appellant filed his motions for discharge.

The computations are closer in case nos. 81-485 and 81-486. Whether the appellant was entitled to be discharged in these cases depends upon when the incompetency tolling period began. If the tolling of the speedy trial time did not commence until May 7, 1981, the date upon which appellant’s order of commitment was signed, then appellant was also entitled to discharge in these cases. However, we believe that the tolling period commenced no later than April 10, 1981, which was the date that appellant was declared incompetent to stand trial in case no. 81-122. While the four cases had not yet been consolidated it was the April 10, 1981, order of incompetency entered in case no. 81-122 upon which appellant relied to obtain incompetency orders in the other three cases. When appellant was declared incompetent to stand trial in case no. 81-122 he could not possibly have been brought to trial on the three other cases pending before the same judge. Once appellant was declared incompetent in one case the state should not have been charged with the time it took to have appellant declared incompetent in the other three. When the period between April 10, 1981, and September 2, 1981, is subtracted from the speedy trial time it appears that 180 days had not yet elapsed when appellant made his motion for discharge in case nos. 81-485 and 81-486.

There is an alternate basis for'upholding these latter convictions. No formal order finding appellant competent to stand trial was ever entered in any of the cases. The record reflects only an entry in the court minutes of September 2,1981, stating that the court found appellant competent to stand trial. No one disputes that this did not suffice to declare appellant competent. But the point is that since appellant must rely on a minute book entry for the date he was declared competent, he cannot complain if the state also relies upon a similar minute book entry reflecting that the court granted appellant’s motion to determine competency on April 28, 1981. The transcript of the hearing of April 28, 1981, demonstrates that the court did in fact declare appellant incompetent to stand trial on that date. However, after a discussion with appellant’s counsel, the court decided to enter a formal written order of commitment so as to provide the Department of Health and Rehabilitative Services with written authority to take appellant into custody. If the time between the docket entries of April 28, 1981, and September 2, 1981, is considered to be the proper tolling period of incompetency, then the appellant’s motions for discharge in case nos. 81-485 and 81-486 were filed exactly on the 180th day. Thus, appellant’s speedy trial time had not yet run.

Accordingly, we reverse the judgments and sentences in case nos. 81-121 and 81-122 and direct that appellant be discharged of these crimes. We affirm the judgments and sentences in case nos. 81-485 and 81-486.

SCHOONOVER and LEHAN, JJ., concur.


author: DANAHY, Judge.

text:
    TRAVELERS PROTECTIVE ASSOCIATION OF AMERICA, Petitioner, v. Wesley P. HACKETT, etc., Ray Carter, etc., and Gilbert McCurdy, etc., Respondents.
    No. 83-881.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 1983.

      Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, and Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauderdale, for petitioner.
    David M. Carr of David Michael Carr, P.A., Tampa, for respondents.
   DANAHY, Judge.

The petitioner, the Travelers Protective Association of America (TPA) requests this court to issue a writ of certiorari to quash an order compelling discovery. We grant the relief requested.

The respondents are Florida members of TPA who are members of Florida Post A, which covers the Bradenton-Sarasota area. Out-of-state members of TPA who move to Florida are not required to change their affiliation from the post in which they hold membership in their state of origin. Thus, apparently, there are a number of Florida residents who are members of TPA but who are not members of a Florida post.

The respondents filed a complaint against TPA containing four counts. It is apparent from a reading of the complaint that the ultimate aim of the respondents is to obtain the affiliation in Florida of those Florida resident members of TPA who have remained members of posts in their states of origin. TPA has filed motions to dismiss which have not yet been ruled upon. It strongly argues that the respondents’ complaint is subject to dismissal for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a cause of action in any of its counts.

With the case in this posture, the respondents filed and served a single substantive interrogatory upon TPA reading as follows: State the names and addresses of each and every member of all non-Florida divisions and posts of TPA who have permanently changed their residence and are currently permanently residing in the State of Florida.

TPA objected to this interrogatory on grounds that it was the equivalent of the ultimate relief sought in the complaint and the court had not yet determined that any cause of action existed. The trial judge overruled TPA’s objection and issued an order compelling TPA to respond to the interrogatory. We agree with TPA that this discovery order can be reviewed by this court by common law certiorari because it meets the test that (1) the lower court’s ruling constitutes a departure from the essential requirements of law; (2) the rule will cause material injury to TPA throughout the remainder of the proceeding; and (3) the injury is one for which there will be no adequate remedy by appeal after final judgment. Manatee County v. Estech General Chemicals Corp., 402 So.2d 75 (Fla. 2d DCA 1981).

We also agree with TPA’s proposition that discovery which amounts to obtaining the ultimate relief sought in the action is not permitted until a right to that relief has been determined. This principle has been applied in analogous cases involving suits for an accounting. Florida courts have uniformly held that a party is not entitled to obtain an accounting by means of discovery until he first establishes his right to an accounting. E.g., Charles Sales Corp. v. Rovenger, 88 So.2d 551 (Fla.1956); Stanton Investment Co. v. Simon, 255 So.2d 557 (Fla. 2d DCA 1971).

For the foregoing reasons, we grant TPA’s petition for certiorari and quash the order of the trial court dated April 4, 1983, compelling TPA to answer the interrogatory propounded by the respondents.

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


author: SCHEB, Judge.

text:
    WALTER L. KELLER & ASSOCIATES, P.A., Petitioner, v. HEALTH MANAGEMENT FOUNDATION, Respondent.
    No. 83-2041.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 1983.
    Michael R.N. McDonnell, Naples, for petitioner.
   SCHEB, Judge.

Walter L. Keller and Associates, P.A. (Keller), seeks a writ of certiorari to set aside the trial court’s order staying proceedings pending arbitration and requiring the trial court to determine whether there is in fact a controversy to submit to arbitration. We decline to issue the writ.

J.L.I. de Bruyn filed a complaint to foreclose a mortgage against Keller, Health Management Foundation, and another defendant. Keller, an architectural firm, cross-claimed against Health Management and the other defendant. The cross-claim alleged that Keller had entered into a contract with Health Management for architectural services. Keller alleged that its work to date had a total value of $328,-263.68, but that Health Management had refused to pay the balance due. Keller also noted that it had filed a claim of lien for this amount against Health Management under Florida’s Mechanic’s Lien Law.

Health Management then filed a motion to dismiss the cross-claim or alternatively to stay all proceedings pending arbitration. In support of its motion, Health Management attached its contract with Keller which provided that “[a]ll claims, disputes and other matters in question between the parties .. . shall be decided by arbitration.” Keller then sought an order staying arbitration on the grounds that the parties had not agreed to arbitration as to the subject matter of the cross-claim.

After a hearing the trial court granted a stay of the proceedings on the cross-claim and ordered that the issues of the cross-claim should proceed to arbitration.

In its petition for writ of certiorari, Keller relies solely on Mills v. Robert W. Gottfried, Inc., 272 So.2d 837 (Fla. 4th DCA 1973), as being directly on point with its contentions. In Mills the Fourth District dealt with a nearly identical arbitration clause to the one here. When the motion to dismiss was filed in Mills, our sister court held there was no controversy to submit to arbitration since the defendants had not yet filed an answer to the complaint. Thus, the court concluded that all the trial judge had before him was an uncontroverted claim for payment and a demand for a lien to enforce the payment. The court then affirmed the trial judge’s denial of the defendant’s motion for arbitration.

Although the facts in Mills are nearly identical with this case, we cannot agree with the Fourth District’s holding that there is no controversy to submit to arbitration until after defensive pleadings are filed. This court has on several occasions compelled arbitration where a motion to dismiss was filed instead of any defensive pleadings. See Balboa Insurance Co. v. W.G. Mills, Inc., 403 So.2d 1149 (Fla. 2d DCA 1981); Sun Insurance Office, Ltd. v. Phillips, 230 So.2d 17 (Fla. 2d DCA 1970). In fact, in Balboa Insurance we even pointed out that a party could waive its right to arbitration if it actively participated in the lawsuit.

The Florida Arbitration Code, section 682.03(1), Florida Statutes (1981), specifically provides:

A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.

(Emphasis supplied.) We note that Keller’s cross-claim does not challenge the validity of the contract or the provision for arbitration, but instead, in full recognition of the contract, seeks damages for its breach. Since no substantial issue existed as to the making of the agreement or provision, the trial court was obligated to send the matter to arbitration regardless of “the justiciable character of the controversy.” § 682.02, Fla.Stat. (1981); Post Tensioned Engineering Corp. v. Fairways Plaza Associates, 412 So.2d 871 (Fla. 3d DCA), review denied, 419 So.2d 1197 (Fla.1982).

Accordingly, we conclude that this matter involved an arbitrable issue, and the trial judge did not depart from the essential requirements of law by ordering the parties to proceed to arbitration.

CERTIORARI DENIED.

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


author: PER CURIAM.

text:
    James WARREN, Appellant, v. STATE of Florida, Appellee.
    No. AO-370.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1983.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED without prejudice to appellant’s right to seek post-conviction relief pursuant to Rule 3.850, Fla.R.Crim.P.

ERVIN, C.J., and THOMPSON and NIM-MONS, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    Todd Edwin HYDE, Appellant, v. STATE of Florida, Appellee.
    No. AP-43.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1983.
    Richard M. Powers of Flynn & Powers, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

Appellant appeals from an adjudication of guilty, pursuant to a jury verdict, and the imposition of a five year sentence for the offense of possession of more than 20 grams of marijuana. Appellant challenges the sufficiency of the evidence, and argues that the sentence was imposed in violation of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We find no error in the submission of the case to the jury and therefore affirm the conviction. However, we find it necessary to reverse and remand for re-sentencing. Only the latter issue merits further discussion.

Appellant was arrested while hacking with a knife at the base of some marijuana plants growing in a marijuana field behind his house. Following the denial of his motion to suppress, appellant pled nolo conten-dere reserving the right to appeal the denial of his motion. The day after his plea was accepted, appellant moved to withdraw the plea on the grounds that he had just discovered that the marijuana was planted by his ex-wife as part of a plan to obtain custody of their children. The trial judge denied this motion, and sentenced appellant to 18 months in prison. At the sentencing hearing, appellant told the trial court that he had “made an error.” He stated further: “Your Honor, I wasn’t aware of the quantity it would produce. I’m not familiar with that kind of thing. I’ve never done it before. I swear, as God is my witness, I was killing those plants when they found me.... I didn’t intend to kill them all but I had no intention of ever harvesting that quantity of marijuana.”

On appeal, appellant’s conviction and sentence were reversed because the trial court had failed to comply with Florida Rules of Criminal Procedure 3.170(j) and 3.172 in accepting appellant’s plea. Hyde v. State, 405 So.2d 445 (Fla. 1st DCA 1983). Following remand, appellant received a jury trial during which he testified that he had discovered the plants growing on his land about five weeks prior to his arrest. He testified that he wasn’t sure what the plants were, so he cut some down and took them to his house to see if he could determine if they were marijuana or not. The day he was arrested, he had decided that the plants were in fact marijuana, and had determined to kill them, leaving the root systems intact so as not to contribute to soil erosion. At the trial appellant also called his ex-wife as a character witness to testify as to his good reputation for truthfulness and veracity. The jury declined to accept appellant’s story, and found him guilty as charged.

At sentencing, the trial judge said, in part:

I’m not saying the [first] sentence was bargained at. It obviously was not. Because the Court was urged to impose a higher sentence in thé first instance. The Court would not do so, thought 18 months was the appropriate sentence at that time and there was a possibility of rehabilitation. The Court has no way of knowing whether you’re speaking the truth as far as the future is concerned. You had everything at stake at the time you committed this act that you have at stake now, except for the addition of a wife, I presume. But, if anybody has ever played the game out to the last hand, you have, Mr. Hyde ....

North Carolina v. Pearce, supra, requires that whenever a trial judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear, and “[t]hose reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” 395 U.S. 725, 89 S.Ct. at 2080. We must review the record to determine whether those requirements have been fully met.

At the original sentencing proceeding, the trial judge made it clear that considering appellant’s background, education and station in life, together with the gravity of the offense, a severe sentence would be justified. Nevertheless, the judge was motivated to forego a more severe sentence because of appellant’s favorable prospect for rehabilitation, as to which the judge at that time was no doubt optimistic. It appears that appellant’s admission of guilt and repentant demeanor could well have been considered by the court as the first step toward rehabilitation. Cf. Bizzigotti v. Florida Parole and Probation Commission, 410 So.2d 1360 (Fla. 1st DCA 1982), particularly page 1364, footnote 11; Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980). However, as pointed out by the State at the second sentencing hearing, appellant at his trial appears to have given testimony inconsistent with his admission of guilt at the initial sentencing hearing.

We know of no reason why the trial judge should not be entitled to take into consideration appellant’s change of position, which could well be viewed as even more reprehensible because it was under oath before a jury of his peers. See, United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978). This state of affairs could be considered, it seems to us, as throwing a “new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities ...,’” Pearce at 723, 89 S.Ct. at 2079, subsequent to imposition of the first sentence, so as to justify a more severe second sentence. In other words, it is conceivable that appellant’s trial conduct, viewed in the light of his earlier repentance and confession of error by means of which he secured the leniency of the court, could satisfy the requirement of “identifiable conduct” justifying a more severe sentence. North Carolina v. Pearce, supra.

Further examination of the record convinces us however, that this case cannot be disposed of by simply accepting the State’s argument that justification for the more severe sentence affirmatively appears from the record. We note, first, that the trial judge failed to articulate with sufficient clarity his reason for imposition of the more severe sentence. While we do not consider the Judge’s comment that appellant “played the game” as evidence of a vindictive attitude, neither can we say that it referred to actions by appellant justifying a heavier sentence, since the fact that appellant succeeded in having his sentence set aside, and that he proceeded to trial, cannot be held against him. More importantly, we note that although the trial judge here was aware of and did consider North Carolina v. Pearce, he was nevertheless persuaded, largely on the basis of the Second District’s decision in Alexander v. State, 422 So.2d 25 (Fla. 2nd DCA 1982), that Pearce was inapplicable. The trial court’s reliance upon Alexander was misplaced, because the court in that case made it clear that its opinion that Pearce was inapplicable was based upon the premise that the Pearce restriction applied only “when a judge pronounces a severer sentence after a new trial, not when a judge imposes a severer sentence after a vacation of an illegal sentence or illegal probationary order.” Id. at 28. But see, Johnson v. State, 426 So.2d 1134, 1135 n. 2 (Fla. 1st DCA 1983) (well settled that rationale of Pearce applies where sentence only is reversed.) Here, the resentencing followed a new trial.

Our conclusion that the sentencing proceeding below was fatally flawed is reinforced by a statement of the trial court that it was “as if it was imposing this sentence in the first instance .... ” This obviously cannot be reconciled with the requirements of Pearce. Since appellant is entitled to have his new sentence determined in accordance with the dictates of Pearce, the sentence of five years is set aside, and it is ordered that appellant be caused to appear before the trial court for resentencing at the earliest practical date. The trial court shall either re-impose a sentence of eighteen months, or spell out for the record the identifiable conduct on the part of appellant occurring after the original sentence that justifies an increased sentence.

REVERSED and REMANDED for further proceedings consistent with this opinion.

JOANOS and NIMMONS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jack Carl RYALS and Susan Bocock, Appellees.
    No. AQ-438.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1983.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellant.
    Stephen N. Bernstein, P.A., Gainesville, for appellee Bocock.
    No appearance for appellee Ryals.
   PER CURIAM.

The state appeals a trial court order granting appellees’ motion to suppress physical evidence seized pursuant to a search warrant. The trial court apparently found that the application and affidavit for search warrant failed to demonstrate the necessary probable cause to justify issuance of the warrant.

The application and affidavit for search warrant fails to set forth any facts showing probable cause to justify issuance of a warrant to search the inside of the appellees’ residence. Accordingly, we affirm suppression of the evidence seized within appellees’ residence.

The application and affidavit does, however, set forth sufficient probable cause to support issuance of a search warrant to search the outside area surrounding appel-lees’ residence. Unfortunately, the officer’s return setting forth the items seized pursuant to the warrant does not indicate which items, if any, were seized outside the residence. Additionally, neither the motion nor the court’s order granting suppression indicates whether any of the items were seized outside the residence and, if so, whether those items are also suppressed. To the extent that the trial court’s order suppressed items seized outside appellees’ residence, it is reversed.

This case is remanded for further proceedings consistent with this opinion, including issuance of an order by the trial court clarifying that the only items suppressed are those which were seized inside the appellees’ residence.

AFFIRMED in part, REVERSED in part, and REMANDED.

MILLS, SHIVERS and ZEHMER, JJ., concur.


author: WIGGINTON, Judge.

text:
    C.L. WHITESIDE CONSTRUCTION CO., employer, and Risk Management Services, Inc., servicing agent, Appellants, v. John JOHNSON, employee, and Division of Workers’ Compensation, Appellees.
    No. AR-189.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1983.
    H. George Kagan, of Miller, Hodges & Kagan, P.A., Miami, for appellants.
    K.P. Jones, of Jones & Zaifert, Fort Lauderdale, for appellee Johnson.
   WIGGINTON, Judge.

The employer/carrier appeal the order of the deputy commissioner awarding claimant wage loss benefits for the months of May, June, July and August, 1982, and assessing penalties against the employer/carrier for those same months. The order also directed the employer/carrier to reinstitute rehabilitation efforts, both as to job placement and reeducation of claimant. That portion of the order has not been challenged.

We affirm the award of wage loss benefits and the assessment of penalties for June, July and August. However, the record indicates that the employer/carrier timely controverted the claim for wage loss for May. Therefore, we reverse the assessment of penalties for the late payment of May wage loss benefits, and the deputy commissioner’s order is amended to that extent.

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


text:
    William FEAGIN, Appellant, v. STATE of Florida, Appellee.
    No. AS-410.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1983.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This appeal from a judgment and sentence entered pursuant to a plea of nolo contendere is dismissed because appellant did not reserve his right to appeal any issue when entering his plea of nolo contendere. See McNamara v. State, 357 So.2d 410 (Fla.1978); Chapin v. State, 427 So.2d 812 (Fla. 5th DCA 1983); Fla.R.App.P. 9.140(b)(1). This dismissal is without prejudice to appellant’s right to seek post-conviction relief pursuant to Fla.R.Crim.P. 3.850, if such presentation in the lower court has not been barred by some other limitation.

DISMISSED.

ERVIN, C.J., and THOMPSON and NIM-MONS, JJ., concur.


text:
    POE & ASSOCIATES, INC., a Florida corporation, Appellant, v. Don G. EMBERTON and George Kaibas, Appellees.
    No. 83-362.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1983.

      Richard A. Bianco, Tampa, for appellant. E.C. Langford of Langford, Mooney & McDuffee, P.A., Tampa, for appellee Don G. Emberton.
    Edwin J. Bradley, Tampa, for appellee George Kaibas.
   GRIMES, Acting Chief Judge.

This appeal involves the question of whether an insolvent corporation may prefer a director-creditor over other creditors.

Appellant (Poe) sued appellees (Emberton and Kaibas) seeking to recover $28,089 owed by Hercules Roofing and Sheet Metal, Inc. (Hercules) to Poe. Poe alleged that at a time when Hercules was insolvent it paid $10,000 to Emberton as a bonus and repaid loans to Kaibas in the amount of $23,287.77. When these payments were made Emberton and Kaibas were directors of Hercules, and Kaibas was its sole stockholder. Since Hercules’ debt to Poe was liquidated and already owing, Poe contended that the payments to Emberton and Kaibas represented an improper preference as director-creditors. Upon the motions of Emberton and Kaibas, the court dismissed Poe’s complaint with prejudice. We reverse.

For purposes of this appeal we shall assume that the payments to Emberton and Kaibas were in fulfillment of proper corporate obligations. Therefore, the question becomes whether the corporation was entitled to pay the debts of its directors in preference to third-party creditors at a time when it was insolvent.

Since the Florida General Corporation Act does not address the subject, Poe seeks to have this court resort to common law principles. Most jurisdictions prohibit the preferential payment of directors’ debts. 19 C.J.S., Corporations, § 1390 (1940). While a few of the decisions are grounded upon statute, some come about through the imposition of what is known as the trust fund doctrine, and still others are based upon a theory that the directors as fiduciaries cannot be permitted to use their positions to benefit themselves at the expense of third-party creditors. According to 15A W. Fletcher, Cyclopedia of the Law of Private Corporations. § 7469 (rev. perm. ed. 1981):

§ 7469. — Rule prohibiting preferences after insolvency.
When a corporation becomes insolvent and can no longer continue in business, the directors and other managing officers occupy a fiduciary relation towards creditors by reason of their position and their custody of the assets, and they cannot, by conveyance, mortgage, pledge, confession of judgment, or otherwise secure to themselves, as creditors, any preference or advantage over other creditors, but the most that they can claim is the right to come in and share pro rata with the creditors in the distribution of the assets, and this rule applies to banking corporations as well as to others. More especially is this true with respect to a preexisting debt.
Nor can agreements entered into by the officers, even when supported by a sufficient consideration, alter the rule.
This is the rule sustained by the great weight of authority, and the fiduciary relation occupied by the officers results from their duty to wind up the affairs of an insolvent corporation and pay the debts incurred. This rule is recognized even in states where corporations have the right to prefer creditors.
The rules of the text are frequently applied to attempts by corporate presidents to secure preferences for themselves, and also to attempted transfers of the company’s property to officers’ wives in payment of alleged debts due to one or both of them.
The denial of the right of directors of an insolvent corporation to obtain a preference by way of security or payment of debts due them by the corporation is not as a rule founded upon the trust fund doctrine, but upon the theory that it is inequitable that a director, whose position as to knowledge of conditions and power to act for the corporation gives him an advantage, should be permitted to protect his own claim to the detriment of others at a time when it is apparent that all the unsecured debts of the corporation are equally in peril, and that all of them cannot be paid. And some cases take the position that he is not even a creditor as against creditors having no connection with the corporation. However, it is the universal rule in those states which recognize the trust fund doctrine, and is independent of any provision of the National Bankruptcy Act. (Footnotes omitted.)

Emberton and Kaibas point out that former section 608.55, Florida Statutes, prohibited an insolvent corporation from paying debts to its directors. They argue that the repeal of this statute in 1975 represented a legislative determination to permit such payments. The same argument was made in Southern Industries, Inc. v. Jeremias, 66 A.D.2d 178, 411 N.Y.S.2d 945 (1978), because in adopting its Business Corporation Law in 1963, New York had repealed a specific statute prohibiting preferential payments by insolvent corporations to director-creditors. In rejecting this contention, the New York court said:

Whether it be upon the theory that directors of insolvent corporations are trustees for the benefit of all creditors, or upon the theory that it would be inequitable to allow directors to use inside information and their controlling voice in corporate affairs to benefit themselves over the claims of others, the common law forbids preferences to directors of insolvent corporations as being contrary to principles of fair, honest and open dealing (see Anns. 19 A.L.R. 320; 38 A.L.R. 90; 48 A.L.R. 479; 56 A.L.R. 207; 62 A.L.R. 738).

411 N.Y.S.d at 950. It should be noted that our legislature did not single out for repeal section 608.55, but simply eliminated it in the repeal of the entire chapter 608 and the adoption of a new corporation act. We cannot say that this action indicated legislative approval of preferential payment of debts by insolvent corporations to their directors.

Directors have inside knowledge of corporate affairs. To permit them to use their fiduciary positions to obtain preferential treatment at the expense of third-party creditors is manifestly unfair. Consequently, we hold that a corporate creditor has a cause of action against a director to whom the corporation paid a pre-existing debt at a time when it was insolvent. We reverse the order of dismissal and remand the case for further proceedings.

SCHEB and RYDER, JJ., concur.

      . Our disposition of this appeal makes it unnecessary to decide whether in the absence of a pre-existing contract an insolvent corporation may ever properly pay a bonus to an employee when he is also a director.

      . Section 607.144, Florida Statutes (1981), which mandates director liability for permitting the distribution of assets to stockholders without paying corporate debts is inapplicable, because even though Kaibas was Hercules’ sole stockholder, the payment to him could not be deemed a distribution of assets.

      . See Annot. 19 A.L.R. 320, 358 (1922).

      . E.g., Burroughs v. Fields, 546 F.2d 215 (7th Cir.1976); Delia v. Commissioner, 362 F.2d 400 (6th Cir.1966); Wortham v. Lachman-Rose Co., 440 S.W.2d 351 (Tex.Civ.App.1969).

      . E.g., Robar Development Corp. v. Minutello, 268 Pa.Super. 406, 408 A.2d 851 (1979); Commons v. Schine, 35 Cal.App.3d 141, 110 Cal.Rptr. 606 (1974); Kirk v. H.G.P. Corporation, 208 Kan. 777, 494 P.2d 1087 (1972).

      . Ordinarily this rule is only applied to pre-ex-isting director debts and does not prohibit a corporation from giving security for a director loan made at a time when the corporation could not obtain new money from other sources because of its insolvency. Stuart v. Larson, 298 F. 223 (8th Cir.1924); 19 Am. Jur.2d, Corporations, § 1578 (1965).

      . See Brown, Nordwall & Ashner, Corporate, Securities and Banking Law Aspects of Workouts, 32 U. Miami L.Rev. 979, 983 (1978), for a discussion of the effect of repealing section 608.55.


author: OTT, Chief Judge.

text:
    STATE of Florida, Petitioner, v. Martha Gwen POTTER, Respondent.
    No. 83-568.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Tampa, for petitioner.
    James W. Kelly, Avon Park, for respondent.
   OTT, Chief Judge.

By Petition for Writ of Certiorari, the state asks this court to review the order of the Circuit Court of the Tenth Judicial Circuit affirming the county court’s (1) grant of respondent’s motion for suppression of evidence stemming from her arrest and (2) granting suppression of evidence of a breathalyzer test. Finding the circuit court affirmance of the first part of the county court’s decision to involve a departure from the essential requirements of law, we partially grant the relief requested in the state’s petition.

On July 16,1982, Officer Steven Green of the Avon Park Police Department observed respondent operating her vehicle within the city limits with one of her two taillights apparently nonfunctional. In following and closing on her vehicle he discovered that the taillight was merely dim. However, he also observed respondent’s vehicle “weave,” crossing the center line three times. Officer Green activated his blue-light and siren, stopping respondent approximately one-half mile beyond the city limits. After the stop, Officer Green’s observations of respondent convinced him that respondent was intoxicated. He administered two roadside sobriety tests which re-enforced his conclusion. He, therefore, placed her under arrest for driving while intoxicated. On the same date, she submitted to a breathalyzer test, resulting in a .17 reading.

On September 17, 1982, an information was filed, charging respondent with driving under the influence of alcoholic beverages and unlawful blood alcohol, contrary to section 316.193, Florida Statutes (Supp.1982). She moved to suppress evidence stemming from the arrest, arguing that Officer Green was acting outside his territorial jurisdiction without legal authority. She also moved to suppress evidence of the breathalyzer test, claiming that the operator administering the test was not properly certified according to Florida law. The county court granted both motions on October 28, 1982. On appeal the circuit court affirmed, concluding that the officer had no authority or jurisdiction to make the initial arrest. Consequently, the circuit court determined that suppression of the breathalyzer test was a moot question — presumably as flowing from an illegal stop or arrest.

Pursuant to section 901.15(5), Florida Statutes (1981), a peace officer is authorized to effect a warrantless arrest when a “violation of chapter 316 has been committed in the presence of the officer. Such arrest may be made immediately or on fresh pursuit.” In the instant case, Officer Green’s observations of respondent’s vehicle within the city limits indicated a violation of section 316.089(1), Florida Statutes (1981), a civil infraction involving failure to maintain a single lane. Since the officer’s initial stop of respondent was based on a violation of chapter 316, he was acting within the authority conferred by section 901.15(5). Moreover, because the City of Avon Park has adopted chapter 316 of the Florida Statutes in its municipal ordinances, respondent’s apparent violation of section 316.089(1) clothed Officer Green with authority under section 901.25(2), Florida Statutes (1981), to arrest on fresh pursuit across jurisdictional lines for violation of a city ordinance. See Cheatem v. State, 416 So.2d 35 (Fla. 4th DCA 1982). We believe this is true regardless of whether respondent was ultimately charged with violation of a city ordinance.

The state’s second contention is that suppression of the breathalyzer test results was improper. We disagree.

Public concern and protection may, as here, justify the invasion or transgression of our highly regarded right of personal privacy or freedom. The legislature has the right to determine under what circumstances such an invasion is justified, within established constitutional limits. It should go without saying that any specific legislative restrictions or dictates accompanying such invasions must be strictly complied with and narrowly applied.

When the state presents evidence of motor vehicle driver intoxication which includes an approved alcoholic test method, the test results are admissible only upon compliance with the statutory provisions and the administrative rules enacted thereunder. State v. Gillman, 390 So.2d 62, 63 (Fla.1980); State v. Bender, 382 So.2d 697, 699 (Fla.1980). Chemical analysis of a person’s blood or breath must be performed “by an individual possessing a valid permit issued by the Division of Health for this purpose.” § 322.262(3), Fla.Stat. (1981). The burden is upon the state to affirmatively demonstrate that the test was administered by a person possessing the statutory requirements. Gillman v. State, 373 So.2d 935, 937 (Fla. 2d DCA 1978), rev’d on other grounds, State v. Gillman, 390 So.2d 62 (Fla.1980).

On July 16, 1982, Sebring Police Officer Leonard Hardy administered a breathalyzer test to respondent. At the hearing in county court, Officer Hardy produced a permit card indicating that it was valid from March 20, 1979, to March 19, 1982. He therefore did not possess a valid permit at the time of performing the analysis on July 16, 1982. The state contends this was immaterial and that while he had not been issued a new card he should be considered permitted through 1984. Officer Hardy testified that he submitted to (and presumably completed and passed) refresher courses on August 18, 1981, and September 28, 1982. The former took place before the expiration date on his permit and the latter after it had expired and after the analysis in question. In addition, a letter was introduced from S.O. Roberts, Alcohol Breath Testing Supervisor for the Department of Health and Rehabilitative Services, to petitioner’s counsel. This letter stated that Officer Hardy was issued a permit to conduct breathalyzer tests, dated August 18, 1981, through August 17, 1984. This is totally inconsistent with the dates on the officer’s permit. The letter also stated that Officer Hardy had “attended a refresher school on August 18,1981, making his permit valid on July 16, 1982.” This may have entitled the officer to a permit under the department’s rather ambiguous regulation 10D-42.26, but cannot obviate the clear mandate of section 322.262(3) to “possess a valid permit” as well as or in addition to having met the department’s approved methods — including testing.

Based on our review of the evidence presented at the suppression hearing and review of the administrative rule governing renewal of permits, we cannot fault the trial court’s conclusion that the state failed to carry its burden of affirmatively showing that the operator held a valid permit on July 16, 1982. Accordingly, we find the state’s second contention to be without merit.

That part of the circuit court’s decision affirming the trial court’s suppression of evidence stemming from the arrest is QUASHED. That part of the circuit court decision affirming the trial court’s suppression of the breathalyzer results is AFFIRMED for the reasons herein expressed.

DANAHY and LEHAN, JJ., concur.

      . Relevant portions of section 901.25(1) and (2) provide:
      (1) The term “fresh pursuit” as used in this act shall include fresh pursuit as defined by the common law .... It shall also include the pursuit of a person who has violated a city ordinance or committed a misdemeanor.
      (2) Any duly authorized state, county, or municipal arresting officer is authorized to arrest a person outside his jurisdiction when in fresh pursuit.

      . The statistics on the alarming magnitude of vehicular carnage in general and that by alcohol or drug impaired drivers in particular are too well known to warrant review.

      . 10D-42.26 Permit — Technician: Renewal, Re-qualifying. Permit to conduct chemical analysis of breath only, shall be renewed every 3 years or anytime during the 12 months prior to expiration date, upon written application of persons otherwise qualified under the provisions of these regulations, provided the permit-tee has successfully completed the annual 6 hour course of instruction prescribed by the Department of Education as approved by the Department of Health and Rehabilitative Services, and which course is designed to reevaluate and requalify permittees. The six hour annual course will not be required in the calendar year the technician is permitted, however, failure of a technician to successfully complete the prescribed 6 hour course in other calendar years (January 1 through December 31) will cause the permit to become invalid as of Midnight December 31. Successful completion of the prescribed 6 hour course will validate the permit from date of completion. Technicians allowing their permits to be invalid for more than 2 years will be required to attend the technicians course as prescribed under Section 10D-42.25. Each technician must advise the Department of Health and Rehabilitative Services of any change of employer within 60 days of such change.


text:
    Barbara Sue WILKERSON, Appellant, v. Raymond Eugene WILKERSON, Appellee.
    No. 83-720.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1983.
    Patrick M. Magill, Orlando, for appellant.
    Clifford R. Rhoades of Haskins & Bryant, Sebring, for appellee.
   PER CURIAM.

The court’s final judgment of dissolution is hereby amended to provide that the trial court shall retain jurisdiction to consider an award of alimony to the wife in the event that she can establish a substantial change of circumstances of the parties at some future date. As amended, the final judgment is hereby affirmed.

OTT, C.J., and SCHEB and LEHAN, JJ., concur.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Wilmer D. LOCKHART.
    No. 82-K-1630.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Rehearing Denied Oct. 28, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N'. Brown, Jr., Dist. Atty., James M. Johnson, Asst. Dist. Atty., for plaintiff-appellee.
    Charles E. McConnell, Springhill, for defendant-appellant.
   CALOGERO, Justice.

Defendant Wilmer D. Lockhart was charged by bill of information with the crime of aggravated burglary in violation of La.R.S. 14:60. He was tried by jury and found guilty as charged. After defendant’s motion for a new trial was denied, the court sentenced him as a multiple offender to twenty years at hard labor. He appeals to this Court urging one assignment of error. We find that assignment of error meritorious and therefore reverse his conviction and sentence.

The following facts were adduced at trial. On October 27, 1981, at approximately 2:00 p.m., defendant Wilmer D. Lockhart knocked on the door of a house occupied by Liby B. Carter, a woman in her sixties who resided in Minden, Louisiana. Ms. Carter responded to a knock at her unlocked door by calling out “all right,” words she described in testimony as meaning to “come on in.” She recognized Lockhart who was her distant cousin and gave defendant permission to use the bathroom when he asked to do so. Ms. Carter then returned to the bedroom where she began changing the diaper of a baby whom she was babysitting. Defendant went into the bathroom. According to Ms. Carter’s testimony, defendant then came out of the bathroom and entered the bedroom. He grabbed her from the rear and attempted to throw her onto the bed on which the baby was laying. Defendant’s penis was exposed. After pulling up Ms. Carter’s dress, he attempted to achieve penetration as he told her, “Give me some of this ...,” and “Don’t make me kill you.” The two tussled, and Lockhart threw the victim to the floor. After, struggling on top of the victim with his penis touching the lower part of her stomach, defendant got up to leave. Ms. Carter testified that there had been no penetration. Defendant told the victim to give him “two hours to get out of town.” After checking to see that defendant was not hidden in the house, Ms. Carter called the police. When the officer arrived moments later, she told him that Lockhart had tried to rape her.

The investigating officers, Sergeant Jack Shelly and Officer Benny Matthews, both testified that the victim had been very nervous, upset and shaken. The bedroom was in disarray. The victim clearly identified defendant as her assailant. Lieutenant Jacie Seney, who spoke with her later in the afternoon at the police station, also testified that the victim had been very nervous and upset. Defendant was arrested later that day after Officer Matthews located him sitting on the steps of his uncle’s house in Minden.

Defendant argues that the trial judge committed error when he failed to grant a new trial on the grounds of insufficiency of the evidence. Defendant contends that the State failed to prove two essential elements of the crime of aggravated burglary beyond a reasonable doubt, namely: 1) an unauthorized entry and 2) intent to commit a felony or theft therein.

Aggravated burglary is defined in La. R.S. 14:60:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.
Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.

In order to prove the crime of burglary, the State must prove beyond a reasonable doubt that the defendant made an unauthorized entry of a structure with the intent to commit a theft or a felony. See State v. Cotton, 341 So.2d 362 (La.1976); State v. Searle, 339 So.2d 1194 (La.1976) (on rehearing). At the moment of the unauthorized entry, the actor must intend to commit a felony or theft therein. State v. Anderson, 343 So.2d 135 (La.1977) (on rehearing). See also State v. Marcello, 385 So.2d 244 (La.1980). This Court has held that the State must prove the intent and the unauthorized entry as distinct elements of the crime of aggravated burglary. We stated in State v. Dunn, 263 La. 58, 267 So.2d 193, 195 (La.1972):

As we construe the burglary statute, the entry must be unauthorized and this must be determined as a distinct element of the offense separate and apart from the intent to steal. If the legislature desired that burglary consist of only an entry with intent to steal, they would have omitted the word unauthorized.

Defendant strenuously argues that under the Jackson v. Virginia sufficiency of evidence standard, the State’s case was deficient in the proof both as to 1) unauthorized entry and 2) intent, upon entry, to commit a felony or theft. With respect to the latter, there was sufficient circumstantial evidence of the requisite intent (upon entry, to commit a felony) in light of the fact that defendant attempted to rape the victim shortly after he entered the residence.

With respect to the former,' however, there was no proof of an unauthorized entry. The victim let defendant into her house. Lockhart was a distant cousin; Ms. Carter recognized him. He asked to use the bathroom; Ms. Carter pointed in the appropriate direction. The victim’s own testimony was to the effect that she consented to allow defendant into her house. On direct examination when the prosecutor asked her what she did when someone knocked at her door on the afternoon of October 27, 1981, she responded that she had said, “All right.” On cross-examination, the defense asked her what she had meant by those words:

BY MR. MCCONNELL:
Q. When you said “all right”, what did you mean?
A. For ’em to come on in.
Q. All right. And he came in and asked you if he could use the bathroom?
A. Yes.
Q. So you knew who it was, you saw him then?
A. Yeah, I looked — I could look out this room through this door, the way you come in that door, and I could see, I knew who he was.

Unlike the defendant in State v. Lozier, 375 So.2d 1333 (La.1979), Lockhart did not gain entry by misrepresenting who he was. In the instant case, the defendant did not disguise himself; he was admitted because the victim knew who he was. We distinguish the situation in Lozier in which the visitors, unknown to the occupant, misidentified themselves as law enforcement officers conducting official police business. Here Ms. Carter’s consent was not vitiated by similar fraud. See 2 Wharton’s Criminal Law and Procedure § 415 (1957); 12A C.J.S. Burglary § 23-24 (1980). The victim allowed him to enter her home. The consent was given by a person with the authority and capacity to consent. The consent was voluntary and intelligent; it was based upon a reasonable understanding of the identity of the intruder. See 1 Wharton’s Criminal Law and Procedure § 46 (1978).

The consent was valid. The State did not prove the essential element of unauthorized entry. Viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found that the requisite elements of the crime of aggravated burglary had been proven beyond a reasonable doubt.

Decree

For the foregoing reasons defendant’s conviction and sentence are reversed.

CONVICTION AND SENTENCE REVERSED.

WATSON, J., dissents.

      . Although defendant originally listed six assignments of error, and later filed a seventh, only assignment of error number seven has been urged on appeal; his briefed argument involves only the sufficiency of evidence issue. The other six assignments were abandoned.

      . Both the crimes of aggravated burglary, La. R.S. 14:60, and simple burglary, La.R.S. 14:62, require an unauthorized entering with the intent to commit a felony or theft therein. Opinions in cases involving charges of either such crime are therefore relevant to this discussion.

      . In State v. Dunn, 263 La. 58, 267 So.2d 193 (1972), this Court stated that an entry with the consent of the owner, either express or implied, is not unauthorized. Valid consent may be given by the owner, the occupant or an agent or servant having proper authority. 12A C.J.S. Burglary § 23-24 (1980). In the instant case the victim was the occupant of the house; her consent was valid.

      . This Court has consistently held that the intent required by the burglary statutes is specific intent; the actor must specifically intend to accomplish certain prescribed criminal consequences. State v. Anderson, 343 So.2d 135 (La.1977) (on rehearing); State v. Lewis, 288 So.2d 348 (La.1974).

      . In State v. Dunn, supra, the State contended that an entry with the intent to commit a theft or a felony constituted burglary since the “breaking” requirement had been abolished. The State had argued that the entry was made unauthorized by the fact that there was an intent to steal present. We concluded that the unauthorized entry was a distinct element of the crime and had to be proven in addition to the intent to commit a felony under the statutory language.

      . 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).