text:
    Z.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1611.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

The juvenile herein appeals an adjudication of delinquency for loitering and prowling and for resisting arrest without violence. We must reverse on the authority of State v. Ecker, 311 So.2d 104 (Fla.1975); In the Interest of O.W., 423 So.2d 1029 (Fla. 3d DCA 1982); S.F. v. State, 354 So.2d 474 (Fla. 3d DCA 1978); L.L.J. v. State, 334 So.2d 656 (Fla. 3d DCA 1976).

The elements of loitering and prowling as set out in State v. Ecker, supra, are: (1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals; (2) such loitering and prowling were under circumstances that warranted a justifiable and reasonable claim or immediate concern for the safety of persons or property in the vicinity. It is true the arresting officer was called to the scene upon a report of purse snatching the day before in the area and that a third person allegedly identified the juvenile as one of the purse snatchers. However, said act took place outside the presence of the officer and the state failed to introduce the testimony of the concerned individual citizen who observed the juvenile’s conduct as required in State v. Ecker, supra, at page 111 in the consolidated case of Worth v. State. The juvenile also contends the arresting officer failed to give him an opportunity to explain his presence as required by Section 856.021 Florida Statutes (1981). The state suggests that it was not necessary to permit him to explain because probable cause coupled with flight completed or established the offense which could not be altered by a subsequent explanation of his presence. We cannot accept this suggestion because in L.L.J v. State, supra, this court reversed an adjudication of delinquency for failure to give the juvenile an opportunity to explain his presence or conduct after flight. The conduct complained of to support the charge of resisting arrest without violence in violation of Section 843.02 Florida Statutes (1981) was that the juvenile gave the arresting officer a false name. This act occurred subsequent to the arrest and therefore could not constitute resisting arrest without violence in violation of Section 843.02 Florida Statutes (1981). Furthermore, we question whether such an act would constitute a crime under Section 843.02 Florida Statutes (1981).

Therefore, the adjudication of delinquency appealed herein is hereby reversed.

Reversed.

      . Section 843.035 Fla.Stat. (1982) [effective July 1, 1982, subsequent to the arrest herein] makes the giving of a false name or false address with intent to hinder, obstruct or interrupt a law enforcement officer a misdemeanor of the first degree.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert Lee MACK, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2044.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, and Karen M. Gott-lieb, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Penny Her-shoff Brill, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

Appellant’s probation was revoked for failure to file monthly reports, failure to report in person to the probation officer, and failure to pay the costs of probation supervision.

It is appellant’s contention in this appeal that the trial court erred in revoking his probation for failure to pay supervision costs where there was no proof of the indigent appellant’s ability to pay for such costs. We agree that failure to pay costs of supervision should not have been considered as one of the grounds for revocation since there is no showing in the record that the appellant was able to pay such costs. Deason v. State, 404 So.2d 1140 (Fla. 4th DCA 1981); Murrell v. State, 364 So.2d 96 (Fla. 4th DCA 1978); Page v. State, 363 So.2d 621 (Fla. 1st DCA 1978).

It is clear that the court did not err in revoking appellant’s probation on the other grounds charged. However, since we do not know if the trial judge would have imposed the same sentence had he not considered appellant’s failure to pay the costs of supervision, we reverse the sentence and remand for resentencing without taking this factor into consideration. Secure v. State, 432 So.2d 630 (Fla. 3d DCA 1983).

Affirmed in part and reversed in part and remanded for resentencing.


text:
    Willie Lee LITTLE, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2112.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Willie Lee Little was convicted of burglary of a structure and grand theft in 1982. The evidence showed that he had been convicted of numerous other burglaries. He was sentenced as a habitual offender.

Appellant seeks reversal of his sentences on the ground that the trial court erred in sentencing him as a habitual offender pursuant to section 775.084(4)(a), Florida Statutes (1981), since the court failed to specify the basis for sentencing him as a habitual offender and failed to find that the enhanced sentences were necessary for the protection of the public. We find merit in appellant’s contention and reverse appellant’s sentences as a habitual offender and remand for the trial court to make the specific finding required by section 775.-084(3)(d), Florida Statutes (1981), that such sentencing is necessary for the protection of the public from further criminal activity by the appellant or, if the record fails to support such a finding, to vacate the habitual offender sentences. Brown v. State, 435 So.2d 940 (Fla. 3d DCA 1983) (on rehearing); Cavallaro v. State, 420 So.2d 927 (Fla. 2d DCA 1982).

Sentence reversed and remanded with directions.


text:
    Albert NELSON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2247.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. United States v. Place, - U.S. -, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); State v. Bankston, 435 So.2d 269, 271 (Fla. 3d DCA 1983).


text:
    Bernaldo DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2311.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Harvey v. State, 87 So.2d 582 (Fla.1956); Hudson v. State, 353 So.2d 633 (Fla.3d DCA 1977).


text:
    Olimpio ZERQUERA, a/k/a El Ronco, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2336.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Kindell v. State, 413 So.2d 1283 (Fla.3d DCA 1982); Nunez v. State, 367 So.2d 268 (Fla.3d DCA 1979); Mabery v. State, 303 So.2d 369 (Fla.3d DCA 1974), cert. denied mem., 312 So.2d 756 (Fla.1975).


text:
    Barbara BITTER, Appellant, v. James C. COUSINS and Cousins Associates, Inc., Federal Insurance Company and Fireman’s Fund Insurance Company, Appellees.
    No. 82-2492.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Anderson, Moss, Russo & Gievers, Miami, Scherman & Zelonker and Regina Zelonker, Hialeah, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Henry Burnett, Adams, Ward, Hunter, Angones & Adams and Richard Adams Jr., Miami, for appellees.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Loftin v. Howard, 82 So.2d 125 (Fla.1955); Hoffman v. Jackson’s Mini Market, Inc., 327 So.2d 48 (Fla. 4th DCA 1976); Powers v. State, 224 So.2d 411 (Fla. 3d DCA), cert. denied mem., 232 So.2d 180 (Fla.1969); Foremost Dairies v. Cutler, 212 So.2d 37 (Fla. 4th DCA 1968).


text:
    Allan BERRY, D.D.S., and Federal Insurance Company, Appellants, v. Sherrie LLEO, Appellee.
    No. 82-2561.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Kimbrell, Hamann, Jennings, Womack, Carlson, Kniskern, P.A., and Roy D. Wasson and Walter Samuel Holland, Miami, for appellants.
    Greene & Cooper, P.A., and Marc Cooper, Sams, Gerstein, Ward, Newman & Beck-ham, Miami, for appellee.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Morella v. Brown, 425 So.2d 123 (Fla. 4th DCA 1982); Sun Charm Ranch, Inc. v. City of Orlando, 407 So.2d 938 (Fla. 5th DCA 1981); Pfister v. Parkway General Hospital, 405 So.2d 1011 (Fla. 3d DCA 1981), review denied mem., 413 So.2d 876 (Fla.1982); Swan v. Florida Farm Bureau, 404 So.2d 802 (Fla. 5th DCA 1981); O’Neal v. Pine Island Fish Camp, Inc., 403 So.2d 980 (Fla. 1st DCA 1979); Quinn v. Millard, 358 So.2d 1378 (Fla. 3d DCA 1978); Warning Safety Lights, Inc. v. Gallor, 346 So.2d 92 (Fla. 3d DCA 1977), cert. denied mem., 355 So.2d 518 (Fla.1978); Schwab v. Tolley, 345 So.2d 747 (Fla. 4th DCA 1977); Inter-American Transport Equipment Co. v. Frank, 227 So.2d 699 (Fla. 3d DCA 1969); Ecker v. National Roofing of Miami, 201 So.2d 586 (Fla. 3d DCA 1967); Atlantic Coast Line Railroad v. Ganey, 125 So.2d 576 (Fla. 3d DCA 1961).


text:
    Alexander ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-187.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.

      Michael S. Gilbert, Key West, for appellant.
    Jim Smith, Atty. Gen., and Marti Rothen-berg, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

Affirmed. Sireci v. State, 399 So.2d 964, 969 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982); State v. White, 324 So.2d 630 (Fla.1975); Bernhardt v. State, 288 So.2d 490 (Fla.1974); Hannah v. State, 432 So.2d 631 (Fla.3d DCA 1983); Bailey v. State, 411 So.2d 1377 (Fla. 4th DCA 1982); McClain v. State, 383 So.2d 1146 (Fla. 4th DCA), pet. for review denied, 392 So.2d 1376 (Fla.1980); Austin v. State, 336 So.2d 480 (Fla.3d DCA 1976).


author: BASKIN, Judge.

text:
    VALLE-AXELBERD AND ASSOCIATES, INC., a Florida corporation, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, and Dr. Leonard Haber, d/b/a Psychological Resources/Psychological Associates of Miami, Appellees.
    No. 83-262.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and R. Benjamine Reid and Douglas J. Chumbley, Miami, for appellant.
    Robert A. Ginsberg and Ralph Rocheteau, III, Sparber, Shevin, Rosen, Shapo & Heil-bronner and Robert Shevin, and Nancy Schleifer and Jesse J. McCrary, Jr., Miami, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Valle-Axelberd appeals the trial court’s denial of injunctive relief, contending that as the lowest bidder it should have been awarded the contract for psychological screening devices for police applicants. Dade County had advertised for bids and, after evaluating the two lowest bidders and finding it impractical to divide the contract between them, awarded the contract to the second lowest bidder, Psychological Resources/Psychological Associates of Miami. The county preferred the second lowest bidder because it did not employ the Minnesota Multiphasic Personality Inventory (MMPI) test. That test became suspect when witnesses testified that it was perceived by the community to be racially skewed.

We reject appellees’ argument that the contract involved professional services which were not required to be bid, section 2-8.1, Code of Metropolitan Dade County; the county elected to invite bids. We affirm the award, however, because the county reserved the right to consider factors other than price. The invitation to bid listed other factors to be considered:

(1) professional experience with law enforcement environment;
(2) professional experience with tri-cul-tural setting;
(3) experience in the use of clinical procedures within personnel selection;
(4) court experience — court appearances defending selection procedures, and if so, what has been the outcome [SIC];
(5) projects of a similar nature — including number of people evaluated annually in projects simitar [sic] to Metro Dade Police Department.

The “special conditions” section of the invitation to bid included:

D. Evidence of reliability of each procedure, particularly inter-rater reliability if relevant.
F. Evidence of validity of each procedure as it relates to groups tested ...
H. Nature of selection, decision, or recommendation process:
1. method of scoring each instrument;
2. rationale for inclusion of each instrument in the process as it relates to item 6.A.1-10 [various mental conditions];
3. method of combining the scores of the various instruments to result an [sic] overall decision or recommendation.

The trial court found no evidence of arbitrary or capricious conduct by the county’s award of the contract to the bidder it believed best represented the best interests of the community. Under these circumstances the county may exercise its discretion. City of Pensacola v. Kirby, 47 So.2d 533 (Fla.1950); Liberty County v. Baxter’s Asphalt & Concrete, 421 So.2d 505 (Fla.1982); System Development Corp. v. Department of Health and Rehabilitative Services, 423 So.2d 433 (Fla. 1st DCA 1982).

Affirmed.


author: JORGENSON, Judge.

text:
    Wesley KING, Appellant, v. GUARANTY NATIONAL INSURANCE COMPANY, Appellee.
    No. 83-442.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.

      Daniels & Hicks, Miami, Levenstein, Po-sess, Heimberg & Felder, Boca Raton and Patrice A. Talisman, Miami, for appellant.
    Lanza, Sevier, Womack & O’Connor and Judith A. Bass, Miami, for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   JORGENSON, Judge.

Wesley King appeals from a final order of dismissal and summary judgment in favor of his excess carrier, Guaranty National Insurance Company, in an action to recover the cost of his stolen automobile. For the following reasons we reverse and remand for further proceedings consistent with the views expressed herein.

King intended to insure his 1977 Jaguar for a total of $28,000. After purchasing an Allstate policy providing primary coverage he purchased $18,000 in excess coverage from Guaranty National. Both policies contained comprehensive coverage insuring him for theft. The specific policy endorsement issued to King by Guaranty National provides:

In consideration of the premium charged, it is understood and agreed that that [sic] the coverage provided hereunder is excess over the following:
Name of Primary Carrier — Allstate— $10,000.
Policy No. — # TBA
It is also understood and agreed that the Company Limits of Liability are $18,-000 which is excess over the primary limits of $10,000.
It is further understood and agreed that Guaranty National Insurance Company is the excess carrier over the primary carrier. In the event of loss, before payment can be made, there must be evidence from the primary carrier that they have made payment.

The policy listed the actual cost of the automobile to be $28,000. On July 5, 1981, the automobile was stolen. After the loss it was determined that the Allstate policy in fact provided $25,000 in coverage and not the $10,000 contemplated by the excess policy. King settled his claim against Allstate for $15,370.60. He then sought the remainder of his damages from Guaranty National. Guaranty National refused to satisfy King’s claim, asserting that its policy could not be reached until the underlying limits of the Allstate policy had been exhausted.

The trial court dismissed King’s suit against Guaranty National because of King’s failure to exhaust the Allstate policy limits. In support of the trial court’s judgment Guaranty National cites Olympic Insurance Co. v. Employers Surplus Lines Insurance Co., 126 Cal.App.3d 593, 178 Cal.Rptr. 908 (1st Dist.Ct.App.1981). The court in Olympic defines the terms “primary coverage” and “excess coverage.” “ ‘Excess ’ or secondary coverage is coverage whereby, under the terms of the policy, liability attaches only after a predetermined amount of primary coverage has been exhausted.” Id. at 597-98, 178 Cal.Rptr. at 910.

We would agree with the trial court and Guaranty National’s position had the policy provided that it was to be excess insurance over any other valid and collectible insurance available to the insured. See Transport Indemnity Co. v. Travelers Indemnity Co., 357 So.2d 795 (Fla. 1st DCA 1978); Spurgeon v. State Farm Mutual Insurance Co., 169 So.2d 343 (Fla. 1st DCA 1964). Under the express terms of the Guaranty National policy endorsement, however, the policy “is excess over the primary limits of $10,000.” We construe no ambiguity or uncertainty in the policy and, as such, must give it its effect as written. See Midwest National Insurance Co. v. Santiesteban, 287 So.2d 665 (Fla.1973). The policy provides for coverage following “evidence from the primary carrier that they have made payment.” It is uncontroverted that Allstate has made payment over $10,000. King is therefore entitled to coverage and a determination of the extent of his loss under the Guaranty National policy.

Reversed and remanded for further consistent proceedings.

      . The result would be unchanged even if we found ambiguity in the policy. It would then be construed against the insurer and in favor of the insured. This follows the rule in contract law that an ambiguous written agreement should be construed against the party that drew the contract. See Travelers Insurance Co. v. Bartosyewicz, 404 So.2d 1053 (Fla.1981); Stuyvesant Insurance Co. v. Butler, 314 So.2d 567 (Fla.1975).


text:
    MOED, INC., d/b/a Griffing House Apartments, Appellant, v. WASH AND DRY, INC., a Florida corporation, Appellee.
    No. 83-598.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    John Kirk McDonald, Claudia B. Green-berg, Coral Gables, for appellant.
    Richard D. Katz, Coral Gables, for appel-lee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellant, defendant below, raises several issues for review, only one of which was both an issue in the trial court and adequately preserved for review, i.e., whether it should have been relieved of its duty to perform according to the terms of a written agreement because of appellee’s alleged nonperformance. There is sufficient evidence in the record to support the jury’s verdict in favor of appellee.

Affirmed.


text:
    Thomas G. PERKINS and Head Shed, Inc., Appellants, v. CHARLEMAGNE PROPERTIES, INC., Transcontinental Properties, Inc., and King’s Creek Hairdressers, Inc., Appellees.
    No. 83-622.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    King, Wayner, Leavy & Rabin, South Miami, for appellants.
    No appearance for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

This is an appeal by plaintiffs from a final order of the Circuit Court of Dade County, Florida dismissing the plaintiffs’ amended complaint seeking a declaratory judgment to determine the validity of a contractual provision of a Lease Amendment entered into by plaintiffs allegedly because of duress and business compulsion.

It is appellants’ contention that the trial court erred in ruling that the action did not come within the purview of the declaratory judgment act, Chapter 86, Florida Statutes (1981). We find no error and affirm. Kelner v. Woody, 399 So.2d 35 (Fla. 3d DCA 1981).

Affirmed.


text:
    INSURANCE COMPANY OF NORTH AMERICA f/u/b/o Alvaro Fernandez, Appellant, v. CRICKET CLUB, INC., Shores Development, Inc., Bradley Scott Parker, and Park West Management, Appellees.
    No. 83-713.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Thomas, Kraft & Raab, Miami, for appellant.
    Pyszka & Kessler, Miami, for appellees.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Fahey v. Raftery, 353 So.2d 903 (Fla. 4th DCA 1977).


text:
    Mary HEGGIE, Appellant, v. EAGLE FAMILY DISCOUNT STORES, INC., and Liberty Mutual Insurance Company, Appellees.
    No. 83-836.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    H. Lawrence Asher, North Miami Beach and Raymond Malcom, for appellant.
    Magill, Reid & Lewis and Fred Lewis, Miami, for appellees.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Admirals Port Condominium Association v. Feldman, 426 So.2d 1054 (Fla. 3d DCA 1983); Reichenbach v. Days Inn of America, Inc., 401 So.2d 1366 (Fla. 5th DCA 1981), review denied mem., 412 So.2d 469 (Fla.1982); Winn-Dixie Stores, Inc. v. Johstoneaux, 395 So.2d 599 (Fla. 3d DCA), review denied mem., 402 So.2d 614 (Fla.1981); Drake v. Sun Bank & Trust Co. of St. Petersburg, 377 So.2d 1013 (Fla. 2d DCA 1979).


text:
    Reginald SYKES, Appellant, v. The STATE of Florida, Appellee.
    No. 83-920.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Bennett H. Brummer, Public Defender and Stanley M. Newmark, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand and Julie Thorton, Asst. Attys. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. McCloud v. State, 335 So.2d 257 (Fla.1976); Andre v. State, 431 So.2d 1042 (Fla. 5th DCA 1983).


text:
    Robert J. SMITH, Appellant, v. CITY OF MIAMI BEACH, Appellee.
    No. 83-969.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Richard C. Carter, Miami, for appellant.
    Ginsburg, Nagin, Rosin & Ginsburg, and Steven Ginsburg, Coral Gables, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The interest of a lienholder, whose lien had not been perfected, was subject to forfeiture when the liened property, an automobile, was seized by the city while being used in criminal activity. § 932.703, Fla.Stat. (1981). Under Florida law, a lien on a motor vehicle titled in this state is perfected only when such lien is noted upon the face of the certificate of title or on a duplicate or corrected copy thereof. § 319.-27(1), Fla.Stat. (1981); Barnett Bank of Clearwater, N.A. v. Rompon, 377 So.2d 981, 983 (Fla. 2d DCA 1979).

Affirmed.

      . Section 932.703(3), Florida Statutes (1981) provides in part:
      No bona fide lienholder’s interest shall be forfeited under the provisions of ss. 932.701-932.704 if such lienholder establishes that he neither knew nor should have known after a reasonable inquiry that such property was being used or was likely to be used for illegal activity, that such use was without his consent, express or implied, and that the lien had been perfected in the manner prescribed by law prior to such seizure, [e.s.]


text:
    James A. LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1072.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Brill, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HENDRY and HUBBART, JJ.
   PER CURIAM.

The order revoking probation and the judgment of conviction entered thereon are affirmed. Sufficient competent evidence was presented below to satisfy the conscience of the court that the defendant James A. Lee violated the conditions of his probation as found by the trial court in the order revoking probation. See Bernhardt v. State, 288 So.2d 490 (Fla.1974).

In accord with the state’s confession of error, however, it will be necessary to remand the sentencing order under review to the trial court for the purpose of modifying same. The trial court in the said sentencing order gave the defendant James A. Lee credit for “such time as he has been incarcerated prior to imposition of this sentence” but failed to specify the exact number of days which the defendant was being credited with pursuant to Section 921.161(1), Florida Statutes (1981). Upon remand, then, the trial court is directed to specify in the sentencing order the exact number of days of presentence incarceration to which the defendant is entitled as a credit against his sentence under the above statute. The defendant need not be present at this modification proceeding. See Hurst v. State, 379 So.2d 434 (Fla. 1st DCA 1980); De Stefano v. State, 377 So.2d 751 (Fla. 4th DCA), cert. denied, 386 So.2d 635 (Fla.1980).

Affirmed in part; remanded for modification of sentencing order.


author: NESBITT, Judge.

text:
    LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Ricardo CEBALLOS, Appellee.
    No. 83-1717.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.

      Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and John W. Wylie and Roy Wasson, Miami, for appellant.
    Richard & Pemsler and Barry Pemsler, Miami, for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

Lumbermens Mutual Casualty Company appeals the entry of an adverse partial summary judgment determining the issue of its liability to the insured, Ceballos, as well as the denial of its countermotion for summary judgment. The question presented for review is whether a liability insurance policy is governed by the law in effect at the time the policy is issued or by the law at the time a claim arises. The law in effect at the time the insurance contract was executed controls. We reverse.

Under section 627.739, Florida Statutes (1975) [in effect when the policy was issued], an insured could purchase deductible PIP benefits at his option. No duty to inquire into the existence of collateral insurance was imposed on the insurance company. This statute was amended, effective September 1, 1977. As amended, an insurance company which failed to advise a purchaser of deductible PIP benefits of the need for collateral insurance would be liable as if there were no deductible. Kwechin v. Industrial Fire & Casualty Co., 409 So.2d 28 (Fla. 3d DCA 1981).

Ceballos purchased personal injury protection insurance with a $2,000 deductible from Lumbermens before the amendment to section 627.739, Florida Statutes took effect. It is undisputed that the insurance company made no inquiry about additional insurance, and that Ceballos had no collateral coverage. Ceballos was injured after the effective date of the amendment.

An insurance policy is a contract. § 624.02, Fla.Stat. (1981). It is well settled in Florida that the statute in effect at the time the insurance contract is executed governs any issues arising under that contract. See Metropolitan Life Insurance Co. v. Fugate, 313 F.2d 788 (5th Cir.1963); Allison v. Imperial Casualty & Indemnity Co., 222 So.2d 254 (Fla. 4th DCA 1969); Poole v. Travelers Ins. Co., 130 Fla. 806, 179 So. 138 (1937). Applying section 627.739, Florida Statutes (1977) to contracts entered into before the statute was effective would constitute a legislative impairment of contract in violation of article I, section 10 of the Florida Constitution.

Ceballos urges us to expand the limited exception for worker’s compensation insurance, under which insurance carriers providing such coverage are liable as statutorily prescribed at the date of the event giving rise to the claim. See, e.g., Simmons v. City of Coral Gables, 186 So.2d 493 (Fla.1966). We reject this argument. Insurance companies providing worker’s compensation insurance know that employers have a special duty to their employees and that worker’s compensation benefits are therefore determined by the law in effect at the date of the event creating a claim. There was no comparable special duty on an insurance carrier providing PIP insurance prior to the effective date of the amended section 627.-739, Florida Statutes.

Reversed with directions to enter judgment in favor of Lumbermens Mutual Casualty Company.


text:
    ASSOCIATES REALTY CO. and William L. Conder, Appellants, v. PROCORP REALTY, INC., William Specht, Appellees.
    No. 83-1942.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    James A. Baccus, Miami, for appellants.
    Lionel Barnet, Miami, for appellees.
    Before BARKDULL and HUBBART and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Uni-Chem Corp. of Fla. v. Maret, 338 So.2d 885 (Fla. 3d DCA 1976).


author: WENTWORTH, Judge. LARRY G. SMITH, Judge,

text:
    Dale CARSON, Sheriff of Duval County, Florida, and City of Jacksonville, Florida, Appellants, v. Gerald BROOKSHIRE, Appellee.
    No. AQ-291.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1983.
    Rehearing Denied Dec. 9, 1983.
    Dawson A. McQuaig, Gen. Counsel, Grady W. Martin, Asst. Counsel, Jacksonville, for appellants.
    Harris Brown and Julie H. Knutz of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for appellee.
   WENTWORTH, Judge.

Appellants seek review of a judgment whereby appellee was awarded damages for false arrest/false imprisonment, contending that the record conclusively establishes probable cause to arrest. We find that the record contains conflicting evidence and that the issue was properly submitted to the jury, and we therefore affirm the order appealed.

Appellee was arrested after a deputy sheriff responded to a complaint alleging that appellee had discharged a firearm into the complainant’s vehicle. Testimony presented at trial indicated that more than two hours had elapsed from the time of the alleged offense until the complaint was made, and that the deputy may have been aware that the complainant had made numerous prior complaints. Upon verifying the complaint, and prior to appellee’s arrest, the deputy inspected a shattered window, through which a bullet had allegedly passed, in the complainant’s vehicle. Various witnesses presented conflicting testimony as to whether observation of the window revealed a bullet hole, and a photograph thereof was admitted into evidence.

Probable cause to arrest may be a defense in a false imprisonment action. See Lee v. Geiger, 419 So.2d 717 (Fla. 1st DCA 1980). But the existence of probable cause is a “common-sense, practical question” dependent upon the totality of the circumstances involved. See Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The circumstances of the present case require the resolution of conflicting evidence, and the motion for directed verdict at the close of the evidence was therefore properly denied and the case submitted to the jury.

The order appealed is affirmed.

JOANOS, J., concurs.

LARRY G. SMITH, J., specially concurs with opinion.

LARRY G. SMITH, Judge,

specially concurring.

I concur in the affirmance, but with emphasis on the limited scope of our review in this case, which has been presented to us on the sole issue of whether the trial court erred in denying appellants’ motion for directed verdict at the close of all the evidence. I wish further to underscore the principle that officers are not required to perform an error-free investigation of a complaint of criminal activity, the final determination of claims of innocence being in the hands of the judge and jury. See, Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), which, although involving a § 1983 civil rights action, contains pertinent observations concerning the duties of arresting officers. Further, as re-emphasized in the recent case of Illinois v. Gates, cited in the majority opinion, only the probability — not a prima facie showing — of criminal activity is the standard of probable cause, and the actions of police officers are to be judged as reasonable and prudent men, not legal technicians.

I do not wish to leave the impression that I would approve the jury’s consideration of the rather wide-ranging evidence as to the complainant’s prior activities, character, and mental state upon which appellee appears to rely in his argument as to the absence of probable cause. An officer should not be required to conduct a neighborhood survey or comb the social register in order to determine if a complainant is indeed a “crank” or a “crackpot,” and if he acts under a reasonable belief to the contrary, based upon a reasonable assessment of the circumstances confronting him, I am of the view that an arrest should be upheld. One additional pertinent fact (among others) supporting the result in this case is that when the officer responded to the call he found the complainant painting a house, which is not exactly what one would normally expect of one claiming to be the recent intended victim of an assailant’s bullet.

I think it may be helpful in a case like this to ponder whether the result might have been vastly different if a concealed weapon or contraband had been found on the person of the arrestee and he was being tried for those offenses.


text:
    Bernard Barton HUNWICK, Appellant, v. STATE of Florida, Appellee.
    No. 83-97.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.
    Rehearing Denied Dec. 7, 1983.
    Harry Gulkin of Varón, Bogenschutz, Williams & Gulkin, P.A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed but remanded for hearing on the issue of whether the appellant received proper credit for time served prior to conviction. Although we have some concern about the extent of the prosecutor’s remarks during final argument, we do not believe such remarks justify or mandate a reversal. We find almost all of the remarks to be within the scope of the evidence adduced or inferences to be drawn therefrom, and, in the case of remarks arguably over the line, we find insufficient objections thereto.

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


text:
    Della ATTISANI, Appellant, v. MNR ENTERPRISES, INC., a Florida corporation and State Farm Fire & Casualty Co., a foreign corporation, Appellees.
    No. 83-256.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.
    Rehearing Denied Dec. 2, 1983.
    Richard G. Newhouse, Fort Lauderdale, for appellant.
    Anthony A. Balasso of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellees.
   PER CURIAM.

Affirmed on the basis of Savignac v. Department of Transportation, 406 So.2d 1143 (Fla. 2d DCA 1981); Ramadan v. Crowell, 192 So.2d 525 (Fla. 2d DCA 1966); also, Alvarez v. DeAguirre, 395 So.2d 213 (Fla. 3d DCA 1981).

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


text:
    Frank L. MIKES, Appellant, v. Lottie H. MIKES, Appellee.
    No. 83-404.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.
    Rehearing Denied Dec. 9, 1983.

      John D. Kruse of Kruse & Livoti, Fort Lauderdale, for appellant.
    Phillip M. Berman, Pompano Beach, for appellee.
   PER CURIAM.

This is an appeal by the husband from a final judgment in a dissolution of marriage action. The husband chooses not to furnish this Court with a trial transcript although its lack was clearly brought to his attention by the wife’s motion which resulted in the husband’s initial brief being stricken.

The appellate issue presented by the husband is, “Whether the lower court erred in awarding the wife substantially more than one-half of the marital assets of the parties by transferring the marital domicile to the wife.” Without access to the transcript, we are of the opinion that we cannot determine the question. Moreover, the husband’s brief is insufficient because of a lack of facts and because some of the facts asserted are not supported by record reference.

We affirm upon authority of Kauffmann v. Baker, 392 So.2d 13 (Fla. 4th DCA 1980).

AFFIRMED.

DOWNEY, BERANEK and WALDEN, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    Holly L. SHURTLEFF, formerly Holly S. Parker, wife, Appellant, v. Stephen o. PARKER, husband, Appellee.
    No. AQ-411.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1983.
    Rehearings Denied Dec. 7, 1983.

      John Paul Howard, Jacksonville, for appellant.
    James Roberts, Roberts & Roberts, Jacksonville, for appellee.
   LARRY G. SMITH, Judge.

Appellant seeks reversal of an order denying her request for extension of rehabilitative alimony, limiting an increase in child support to only an additional $50.00 per month, and denying her request for attorney’s fees incurred in the modification proceeding. We affirm in part and reverse in part.

The final judgment of dissolution included a provision, by stipulation of the parties, for payment to the wife the sum of $1,000.00 per month for a period of eighteen months, as rehabilitative alimony. The stipulation, and the judgment, further provided: “If at the end of of eighteen months the wife has continuously pursued a Masters Degree in Education as a full-time student and she has not received her Masters Degree, then the husband shall continue to pay the rehabilitative alimony until the wife completes a degree, said additional period not to exceed six months.” Although the wife’s under-graduate degree was in education, she had never worked in that field, had never taught, and was not certified to teach. On the other hand, she had several years work experience as a counsellor doing social work, and as an employee in the CETA program in Jacksonville.

Soon after the divorce the wife moved to the State of Georgia, where she and the minor child of the parties took up residence with her parents. She found, unfortunately, that in Georgia a number of teachers had been released in an economy move, and that prospects for her employment as a teacher, even with a Masters Degree, were not favorable. She then reevaluated her decision to pursue a Masters Degree in education, and determined after counseling with the Department of Labor and other sources that the field of occupational therapy offered substantial opportunity for employment. The required education and training in this field was available in the locality where she lived, but she found that the deadline for enrollment in that course of study for the current year had passed, and that she would not be able to commence that course of study in September, 1981, but would have to wait until June, 1982. In the meantime, since she needed four or five additional courses in order to qualify for acceptance by the medical college from which she would receive the training, she immediately enrolled in and completed those courses, and was ultimately accepted as a student in occupational therapy.

The agreement for rehabilitative alimony which was incorporated in the final judgment contemplated that the wife would be occupied, for at least up to twenty-four months, as a full-time student, rather than in productive employment. The facts as above outlined strongly suggest that to deprive the wife of the rehabilitative opportunities both parties apparently conceded she was entitled to at the time of the dissolution would be contrary to the uses and purposes for which rehabilitative alimony has been engrafted into our domestic relations law. The record before us presents no justification for the denial of an extension for at least six months unless such justification can be found in the wife’s abandonment of a field for which she had been educated but had never tried, and her pursuit of a career in a new field which seemed appropriate for her and which appeared to offer greater promise of success. Here there is no evidence or even a suggestion in appellee’s argument that the wife made the change simply for the purpose of attempting to justify an extension of rehabilitative alimony payments. The unrefuted evidence is that the wife made the change for good reasons after seeking and receiving expert advice. Her actions were clearly consistent with the “carrot and stick” tenor of the extension agreement incorporated in the final judgment. Further, an award of a six month extension as contemplated by the parties is also well within the issues made by the petition for modification, for although in her petition she sought a longer extension, the prayer for relief simply requested an extension of rehabilitative alimony without specifying a particular number of months.

This court has consistently resisted the urgings of the parties in domestic relations cases to upset the rulings of trial judges on financial or other matters. It is only on rare occasions that the facts of a particular case appear to present such an eggregious result, one way or the other, that we have found it appropriate to intervene. We must be ever vigilant, however, to avoid exceeding the bounds of our authority. See, Conner v. Conner, 439 So.2d 887 (Fla.1983). With all due deference to the admonitions of our highest court, as in Conner, supra, and mindful as well of the broad discretion vested in the trial judge under the “reasonableness” test of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we find that it was an abuse of discretion for the trial court under the peculiar facts of this case to refuse to extend rehabilitative alimony for the additional six month period contemplated by the final judgment. Otherwise, the rulings of the trial judge attacked on this appeal were within his sound discretion, and must be affirmed.

AFFIRMED in part, and REVERSED in part, and REMANDED for entry of an order extending rehabilitative alimony payments of $1,000.00 per month for six months.

WENTWORTH and JOANOS, JJ., concur.


author: ZEHMER, Judge.'

text:
    In the Interest of A.J.R., a Child.
    No. AR-239.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1983.

      Neal L. Betancourt, Jacksonville, for appellant.
    James W. Sloan, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.'

The issue on this appeal is whether the trial court erred in awarding the putative father temporary custody of his minor son, who had previously been declared a dependent child pursuant to Part III, Chapter 39, Florida Statutes. We affirm.

On appeal, the child’s mother argues that after she raised an issue of the child’s paternity before the circuit court in this Chapter 39 child custody proceeding, the court made a specific adjudication that appellee was the father and, as a consequence, granted ap-pellee custody. Appellant contends that the court’s determination of paternity could not lawfully be made in this Chapter 39 proceeding.

On the record before us, it appears that at no time prior to this hearing had appellant disputed appellee’s claim to being the father of the child. The only issue initially presented for hearing was whether temporary custody of the child should be given to the putative father, the mother, or the mother’s friends who had temporary custody at that time. Accordingly, we do not construe the order below as a final adjudication of the paternity of the child for all purposes. The sole issue on this appeal is the propriety of awarding custody to the appellee, and we hold that there was sufficient competent evidence before the circuit court to support a finding that ap-pellee is, for the purposes of this proceeding, the father of this child and that the best interests and welfare of the child are served by awarding temporary custody to appellee. It is axiomatic that in a child custody dispute between parents the welfare of the child is the prime consideration. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). The trial judge considered all the evidence before him, including reports by appropriate public agencies which recommended awarding custody to the father, and carefully explained his findings in a well-reasoned order. No abuse of discretion on his part has been demonstrated.

We note that the circuit court’s order requires that appellee take the necessary steps to have his name placed on the child’s birth certificate as the father of the child. According to Section 382.16(5)(c) and (d), Florida Statutes (1981), the father will not be able to have his name placed on the birth certificate unless consented to by the mother or, lacking such consent, paternity is determined by a court of competent jurisdiction. If, in fact, the mother has any bona fide and substantial question concerning appellee’s status as the father, such questions may be finally determined in a duly filed paternity proceeding arising out of appellee’s attempt to comply with that provision of the order.

AFFIRMED.

MILLS and SHIVERS, JJ., concur.


author: OTT, Chief Judge.

text:
    TON-WILL ENTERPRISES, INC., Robert H. Klein, and Kay J. Klein, Appellants, v. T & J LOSURDO, INC., Vito Losurdo, and Ann Losurdo, Appellees.
    No. 82-2660.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1983.
    Gary R. Preston of Richards, Nodine, Gil-key, Fite, Meyer & Thompson, P.A., Clear-water, for appellants.
    Douglas N. Menchise, Clearwater, for ap-pellees.
   OTT, Chief Judge.

Appellants purchased an ongoing business known as the “Liquor Lodge” from appel-lees in January, 1982. The contract required periodic installment payments. The first $25,000 installment payment, due April 15, 1982, was not made. Thereupon, appel-lees filed a complaint in circuit court, seeking to foreclose the contract for deed, conditional bill of sale, and second mortgage. Appellants answered, claiming as affirmative defenses that the agreement was procured through fraudulent misrepresentation and that the contract failed for want of consideration. Appellants also filed a counterclaim for cancellation and rescission of the contract on the ground that the contract was procured through fraud and misrepresentation. In the alternative, appellants sought damages suffered as a result of the claimed fraudulent misrepresentations. Appellees’ reply to the affirmative defenses consisted of a denial of the allegations and a demand for strict proof thereof. In their answer to the counterclaim, appel-lees offered numerous affirmative defenses, including failure to investigate and the pa-rol evidence rule.

Appellees filed their motion for summary judgment, claiming that no genuine issue of material fact existed as to appellants’ breach of the agreement by failure to make the first installment payment and that they were entitled to judgment as a matter of law. The affidavits of appellees Ann Lo-surdo and Vito Losurdo accompanied the motion. The affiants averred that the factual allegations contained in the complaint were true, that appellants failed to make the first installment payment, and that an attorney had been retained to prosecute this action. In opposition to the motion for summary judgment, the affidavits of appellants Robert Klein and Kay Klein were filed. The affiants averred that they held discussions with the Losurdos concerning the profitability of the business prior to the written contract of sale; that the Losurdos stated that they were realizing a net profit of $10,000 per month and that the Kleins would be able to meet the installment payment schedule from the income generated by the business; that such representations were false; that the Losurdos knew of that falsehood; that the Kleins relied on such representations; that the Kleins would not have purchased the business had they known the representations were false; and that the Kleins would restore all benefits received from the transaction and premises if rescission was granted. The trial court granted final summary judgment of foreclosure for appellees.

In this appeal, appellants contend it was error to enter judgment of foreclosure in light of the issue of fraudulent misrepresentation. We agree.

In order to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of such defenses. Howdeshell v. First National Bank of Clearwater, 369 So.2d 432, 433 (Fla. 2d DCA 1979). Appellees made no attempt to disprove the defenses by evidence. In fact, their denial of the allegations supporting the defenses and demand for strict proof thereof created factual issues. Thus, the only remaining determination is whether the legal insufficiency of appellants’ affirmative defenses of fraudulent misrepresentation and lack of consideration was demonstrated.

Appellees argue that appellants as purchasers of a business had a duty to make some reasonable inquiry or investigation of the seller’s operating expenses and cannot defend or recover damages for alleged misrepresentations concerning such representations where they fail to ask for and inspect the books and records of the business, citing Butts v. Dragstrem, 349 So.2d 1205 (Fla. 1st DCA 1977), cert. denied, 361 So.2d 831 (Fla.1978). However, in Besett v. Basnett, 389 So.2d 995 (Fla.1980), the supreme court held that the purchaser of an ongoing business may rely on the truth of a representation of past profitability, even though its falsity could have been ascertained had an investigation been made, unless the purchaser knows the representation to be false or its falsity is obvious to him. The supreme court specifically disapproved all other decisions inconsistent with this holding. 389 So.2d at 998. Accordingly, appellants’ claimed failure to investigate does not alone render their affirmative defenses legally insufficient.

Appellees also refer to the equitable principle that a party may not accept the fruits of a contract and at the same time renounce or repudiate burdens which that contract places on him. See United Contractors, Inc. v. United Construction Corp., 187 So.2d 695, 702 (Fla. 2d DCA 1966). At this point, it is sufficient to say that application of this principle requires factual development beyond the scope of the pleadings and affidavits presently filed in this case.

We note that parol evidence may establish either, fraud in the procurement of a written contract, Pena v. Tampa Federal Savings and Loan Association, 363 So.2d 815, 817 (Fla. 2d DCA 1978), cert. denied, 373 So.2d 461 (Fla.1979), or that the contract fails for want of consideration, see Wagner v. Bonucelli, 239 So.2d 619, 620 (Fla. 4th DCA 1970).

In summation, we hold that the grant of summary judgment was improper and is therefore vacated in light of the existence of material factual issues concerning the affirmative defenses and appellees’ failure to demonstrate the legal insufficiency of the defenses. We remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

RYDER and LEHAN, JJ., concur.


author: SCHEB, Judge.

text:
    Betty Jane TALLENT, Appellant, v. John Mark TALLENT, Appellee.
    No. 83-78.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1983.
    Robert M. Chambers, Winter Haven, for appellant.
    John W. Frost, II, of Frost, Purcell & Lilly, P.A., Bartow, for appellee.
   SCHEB, Judge.

Betty Jean Tallent challenges a postjudgment order alternating the custody of the parties’ two minor children. We find no significant change of circumstances to substantiate the modification. Therefore, we reverse.

The husband and wife were married in 1969. They have two children, ages eleven and seven. On July 30, 1981, the husband and wife negotiated a comprehensive separation and property settlement agreement which included provisions for custody and formed the basis of the final judgment of dissolution rendered on September 8, 1981. The final judgment recited:

That both parties are fit and proper persons to have the custody of the children awarded unto them, however it is in the best interest of the children that the Wife be the custodial parent subject to reasonable and liberal visitation rights in favor of the Husband.

Less than one year after the dissolution, the husband petitioned the court to modify the child custody provisions or in the alternative, to determine his visitation rights with specificity. At the hearing on the husband’s petition, the husband and wife were the only witnesses. After hearing the parties’ testimony, the trial court in its order of December 15, 1982, concluded that:

[Tjhere has been a sufficient change of circumstances to substantiate a modification of the Final Judgment as to custody. There have been some difficulties with visitation. In addition, the older boy has a serious problem that is inappropriate for his age, which is more amply described in the record. Under the present plan of visitation the children are in the father’s home as “visitors” for four days each month and the father has not had the anticipated impact on the development of the children.

The court also stated that:

It appears to this Court that the Legislature, in passing the Shared Parental Responsibility Act, has attempted to change the entire concept of custody in dissolution of marriage actions rather than simply change the labels. In this case, all of the factors favor not only shared parental responsibility but rotating custody.

The trial court recognized that the Shared Parental Responsibility Act applies only to proceedings pending on July 1, 1982, the effective date of the Act. The court, nevertheless, ordered rotating custody on a yearly basis with liberal visitation rights to the noncustodial parent during the “off years.”

A trial court has broad discretion in matters involving child custody, but it has less discretion in modifying the custody provisions of a final judgment than in making the original custody determination. Culpepper v. Culpepper, 408 So.2d 782 (Fla. 2d DCA 1982). Therefore, the question on appeal is whether the evidence before the trial court supports a finding that subsequent to the final judgment there has been a material change of circumstances which, in the best interest of the children, requires modification. Iljazi v. Iljazi, 436 So.2d 326 (Fla. 2d DCA 1983). See also Strickland v. Wedekind, 436 So.2d 250 (Fla. 5th DCA 1983).

Traditionally, orders requiring alternating or rotating custody have been met with disfavor in the courts. Bienvenu v. Bienvenu, 380 So.2d 1164 (Fla. 3d DCA 1980). At least one district has held that even under the new statute “the best interests of children are not served by custodial arrangements which require the children to move back and forth between the residences of their parents.” Frey v. Wagner, 433 So.2d 60 (Fla. 3d DCA 1983).

In ordering a modification of custody, the trial judge relied on four factors. First, the parties were experiencing some difficulties with visitation. These difficulties could have been addressed by the court specifying visitation rights rather than by ordering rotating custody. Second, while the court mentioned that the older child had a serious problem inappropriate for his age, the evidence revealed that this problem had existed for several years prior to the dissolution of the parties’ marriage. Third, the court noted that the children were in the father’s home as “visitors” for four days each month. It appears, however, that the husband had agreed to such limited visitation rights in the separation agreement which was incorporated into the final judgment. Finally, the court recited that the father has not had the anticipated impact on the development of his children. However, the parties had agreed to the wife’s having primary custody of the children, and we think that the father’s lessened impact on the children’s development was a reasonably foreseeable consequence in such a situation.

From our review of the record, we conclude that the evidence supports the trial court’s" factual findings. We disagree, however, with the court’s conclusion that a substantial change of circumstances was presented to justify a modification of the child custody order. Culpepper v. Culpepper; Sanders v. Sanders, 376 So.2d 880 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1117 (Fla.1980).

Accordingly, we vacate the order modifying custody. Since the court did not reach the husband’s request for determination of visitation privileges, we remand with directions that it now address that issue. The court may, in its discretion, receive further evidence on the issue concerning visitation rights.

BOARDMAN, A.C.J., and SCHOON-OVER, J., concur.

      . The wife filed a counterpetition seeking increased child support, which the trial court denied in its order of December 15, 1982. While the wife appeals that order, she claims error only on the issue of modification of custody.


author: GRIMES, Judge.

text:
    SENCO OF FLORIDA, INC., Appellant, v. CONTINENTAL CASUALTY COMPANY, Appellee.
    No. 83-255.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1983.
    Chris W. Altenbernd and Jonathan Alpert of Fowler, White, Gillen, Boggs, Villa-real & Banker, P.A., Tampa, for appellant.
    Oscar Blasingame and Luis Prats of Bla-singame, Forizs & Smiljanich, St. Peters-burg, for appellee.
   GRIMES, Judge.

This case involves an interpretation of a vendors broad form endorsement pertaining to products liability coverage.

Ronald J. Raite sued Senco of Florida, Inc. (Florida Senco), for personal injuries suffered in the explosion of a pneumatic stapling tool manufactured by Senco Products of Ohio, Inc. (Ohio Senco), and sold by Florida Senco. Florida Senco sought coverage under a products liability insurance policy issued by Continental Casualty Co. (Continental) to Ohio Senco which contained the vendors broad form endorsement. After Continental’s insistence upon defending under a reservation of rights, Ohio Senco brought a declaratory judgment action against Continental for a determination of coverage.

At the trial, the parties stipulated to the pertinent facts. Ohio Senco is engaged in the business of manufacturing and marketing pneumatic nailing tools used primarily in the construction industry. Florida Senco is an authorized sales and service representative of Ohio Senco. Ohio Senco supplies Florida Senco with a complete line of stapling tools together with replacement parts. Prior to November 11, 1971, many model M-II staplers were sold by Ohio Senco to Florida Senco for distribution to the general public and the construction industries. The M-II stapler which ultimately exploded was leased by Florida Senco to a mobile home manufacturer on November 11, 1971, and returned to Florida Senco on September 19, 1976. The stapler was then sold to H. Wallace George Construction Company on June 9, 1977. Some time between November 11, 1971, and June 9, 1977, the operating mechanism of the stapler was placed in a new housing which had been manufactured by Ohio Senco and sold to Florida Senco as replacement housing. On September 8, 1978, Raite was injured when an oxygen bottle was hooked to the air line of the stapler, causing it to explode.

The pertinent portion of the vendors broad form endorsement in Continental’s policy reads as follows:

It is agreed that the “Persons Insured” provision is amended to include any person or organization designated below (herein referred to as “vendor”), as an insured, but only with respect to the distribution or sale in the regular course of the vendor’s business of the named insured’s products subject to the following additional provisions:
1. The insurance with respect to the vendor does not apply to:
bodily injury or property damage arising out of
(i) any physical or chemical change in the form of the product made intentionally by the vendor,

Name of Person or Organization:

All Vendors Doing Business With the Named Insured

Following a hearing, the court concluded that Florida Senco was not covered under the policy because the installation of the replacement housing on the stapler constituted a physical change in the form of the product so as to come within the exclusion.

We believe the court misconstrued the exclusion. The purpose of the vendors broad form endorsement is to provide coverage for vendors who sell a manufactured product without material alteration. Clearly, neither the manufacturer nor its insurance carrier has any control over the design of the product after it has left the manufacturer’s control. Therefore, if the vendor modifies the design or the function of the product before it is sold, the exclusion acts to deny coverage for the vendor. Insurance policies should be construed to provide a reasonable, practical, and sensible interpretation consistent with the intent of the parties. United States Fire Insurance Co. v. Pruess, 394 So.2d 468 (Fla. 4th DCA 1981). We can think of no valid underwriting justification to exclude coverage for a vendor who has been careful to replace parts of the manufacturer’s products with replacement parts furnished by the manufacturer and covered by the policy.

The replacement part, manufactured by Ohio Senco, was designed to replace the original part. It has the same basic design and serves the same function as the original part. The replacement of the housing may have been a “change” in the product but it cannot reasonably be said that this constituted a change in the “form of the product.” The lower court’s interpretation would exclude vendor protection for almost every service performed by an authorized vendor using authorized repair parts. We hold that the replacement of the stapler housing with an authorized repair part did not constitute a change in the form of the product.

In view of our conclusion that there was no change in the form of the product, we need not reach the question of whether there was bodily injury or property damage “arising out of” any change in the form of the product. This point was raised by Florida Senco below but not addressed by the court in the final judgment. We note, however, that in Raite’s allegations of negligence and strict liability against Florida Senco, he does not assert that the replacement housing had anything to do with his injury. Therefore, at the very least Continental would owe Florida Senco a defense, and unless it were later determined that the replacement of the housing had something to do with the injury, Florida Senco would be covered even if there had been a physical or chemical change in the form of the product. See St. Louis-San Francisco Railway Co. v. Armco Steel Corp., 490 F.2d 367 (8th Cir.1974).

The judgment is reversed, and the ease is remanded for entry of a judgment for Florida Senco together with the assessment of reasonable fees for the services of its attorneys at both the trial and appellate levels under section 627.428, Florida Statutes (1982).

OTT, C.J., and HOBSON, J., concur.


author: LEHAN, Judge.

text:
    Terry WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 83-870.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1983.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Although the trial court orally stated that appellant had violated three conditions of his probation, the court’s written order of probation revocation did not specify which conditions had been violated. This cause is remanded to the trial court for correction of the written order to reflect the conditions of probation violated by appellant. See Brown v. State, 429 So.2d 821 (Fla. 2d DCA 1983). In all other respects, the order is affirmed.

AFFIRMED.

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


text:
    Jay D. DIAMOND, Appellant, v. STATE of Florida, Appellee.
    No. 83-1824.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1983.
   PER CURIAM.

This court previously remanded appellant’s motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 to the trial court for further consideration. See Diamond v. State, 431 So.2d 348 (Fla. 2d DCA 1983). The trial court has now attached to its order denying postconviction relief those portions of the record which conclusively show that appellant was charged with and pled guilty to robbery with a deadly weapon. Consequently, appellant’s sentence of imprisonment for twenty years is legal. § 812.13(2)(a), Fla. Stat. (1981). However, the judgment and sentence indicate that appellant pled guilty to and was adjudicated guilty of the crime of robbery. We REMAND for correction to indicate that the crime was robbery with a deadly weapon. In all other respects, the order of the trial court is AFFIRMED.

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


author: ZEHMER, Judge. MILLS, Judge,

text:
    Harold Ivan YESNES, Appellant, v. STATE of Florida, Appellee.
    No. AQ-328.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1983.

      P. Michael Patterson, Pensacola, for appellant.
    Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

The defendant, Yesnes, was convicted upon seven informations charging offenses of sexual battery and producing or possessing illicit photographs depicting sexual conduct by minors. On this appeal, he seeks reversal based on error in the trial court’s orders denying defendant’s motions to dismiss three of the informations, his motions to suppress photographs and other materials seized by law enforcement, officers, and his motion to withdraw his plea of nolo contendere. We affirm in part, reverse in part, and remand.

Based on an affidavit by a Pensacola police officer, a warrant was issued authorizing the search of defendant’s residence for “certain photographs depicting in whole or in part the female genitials [sic] in the state of sexual excitement.” As a result, the officers searched the premises and seized photographs, magazines, and books which contained explicit or strong sexual conduct. Thereafter, defendant was. charged in seven informations with the following offenses.

In Case No. 81-5233, the amended single-count information charged that defendant, between January 1 and December 9, 1981, unlawfully exhibited photographs depicting sexual conduct involving a minor, in violation of Section 847.014(2)(b)l, Florida Statutes.

In Case No. 81-5234, the single-count information charged that defendant, on December 14, 1981, unlawfully possessed with intent to sell photographs depicting sexual conduct involving a minor, in violation of Section 847.014(2)(b)2, Florida Statutes.

In Case No. 81-5235, the single-count information charged that defendant, between August 1 and August 31, 1981, unlawfully committed a sexual battery upon T.M.P., a minor female over the age of eleven years, in violation of Section 794.011(4)(c), Florida Statutes.

In Case No. 81-5236, the three-count information charged in Count One that defendant, on December 26, 1981, committed sexual battery upon S.N., a minor female over the age of eleven years, in violation of Section 794.011(4)(c), Florida Statutes; Count Two charged that defendant, on the same date, unlawfully produced a photograph depicting sexual conduct involving S.N., a minor female, in violation of Section 847.014(2)(a)l, Florida Statutes; and Count Three charged that defendant, on the same date, unlawfully procured S.N., a minor female, to participate in photographs depicting sexual conduct involving a minor, in violation of Section 847.014(2)(a)2, Florida Statutes.

In Case No. 81-5237, the three-count information charged that defendant, on the same date as in Case No. 81-5236, committed the same three offenses with D.R.N., another minor female.

In Case No. 81-5238, the two-count information charged in Count One that defendant, between August 1 and August 31,1981, unlawfully produced photographs depicting sexual conduct involving T.M.P., the same minor female alleged in Case No. 81-5235, in violation of Section 847.014(2)(a)l, Florida Statutes; Count Two charged that defendant, between the same dates, procured that same minor female to participate in photographs of sexual conduct involving a minor, in violation of Section 847.014(2)(a)2, Florida Statutes.

In Case No. 81-5239, the three-count information charged in Count One that defendant, between July 1 and July 31, 1980, unlawfully committed a sexual battery upon S.D.R., a minor female over the age of eleven years, in violation of Section 794.-011(4)(c), Florida Statutes; Count Two charged that defendant, between the same dates, unlawfully produced photographs depicting sexual conduct involving S.D.R., a minor female, in violation of Section 847.-014(2)(a)l, Florida Statutes; and Count Three charged that defendant, between the same dates, unlawfully procured that same minor female to participate in photographs depicting sexual conduct by a minor, in violation of Section 847.014(2)(a)2, Florida Statutes.

Defendant filed Rule 3.190(c)(4) motions to dismiss four of the informations. He also filed a motion in all cases, which was later amended, for suppression of the evidence obtained in the search of his residence.

Asserting, among other grounds, the legal insufficiency of the affidavit on which the warrant was issued, the trial court granted defendant’s motion to dismiss Counts Two and Three in Cases No. 81-5236 and 81-5237 and Count One of Case No. 81-5238. The court denied the motions to dismiss in all other respects and denied the motions to suppress.

Thereafter, defendant entered a plea of nolo contendere to the remaining charges, reserving his right to appeal the denial of these motions. Exactly a week later, however, defendant notified the court by letter that his nolo plea had not been entered freely, knowingly, and voluntarily because he had been under the influence of drugs at the time and had been coerced by his court-appointed counsel. The court treated the letter as a motion to set aside the nolo plea and, after the hearing (discussed infra), denied it. Defendant was adjudged guilty and sentenced in each case to serve, concurrently, ninety days in jail and ten years probation.

We consider defendant’s appeal from the several judgments of conviction as a consolidated appeal.

MOTIONS TO DISMISS

We find no error in the trial court’s denial of the motions to dismiss except as to Count One in Case No. 81-5237. In that case, the state admitted it had no evidence to prove the threat of future retaliation, alleged in Count One. Hence, that count should also have been dismissed. But the briefs indicate that apparently Count One was amended to charge “contributing to the delinquency of a minor,” in violation of Section 827.04(3), Florida Statutes, and that defendant entered a nolo plea to that amended charge. The record contains a copy of an “arrest report” indicating defendant was adjudicated guilty of contributing to the delinquency of a minor and sentenced to one year probation and ninety days in county jail on such charge, but the record does not contain any amended information or judgment thereon in Case No. 81-5237. In view of this confused state of the record and because of our disposition of the other issues on this appeal, we decline to consider the propriety and sufficiency of the apparent amendment to that count. On remand, the record should be clarified to reflect the actual disposition of this count.

MOTION TO SUPPRESS

The search warrant was issued on the basis of an affidavit submitted by an investigating officer which recited the following facts to establish the required probable cause:

The above named subject has in his possession a large quantity of photographs he admits having taken of a large number of young females in various stages of undress depicting in whole or in part the female genitials [sic] in the state of sexual excitement and that he further has directed or performed the taking of said photographs of persons under the age of 18 years old. Also that he has procurred [sic] persons under the age of 18 to participate in such photographs.
Also, that he does now have and keep in his possession such photographs which have been viewed by white female, L.R.F. age 14, which were of other young females under the age of 18 years old. Also, that this same girl was offered a job modeling and coherced [sic] into posing for photos of her breast [sic] on or about the middle of August, 1981, at which time this girl was shown many other photos of other young girls which Mr. Yesnes claimed to have taken for the purposes of modeling, depicting young girls totally nude.
Further information gathered during this investigation [sic] this officer interviewed another confidential informant on 12/9/81, at 4:30 p.m. who claims to have been offered a job with this same man on or about 11/5/81, who also approached her and wanted her to model after first offering her a job making Pizzas [sic]. After going with this man to his house she was warned by another white female employee around the age of 18 not to take the job because this man takes pictures of young girls in the nude. This unidentified white female also informed my informants she had seen photos of young girls performing oral sex on Mr. Yesnes. My informant indicated that her friend, white female L.R.F. had been employed by this man and this girl said she knew of the L.R.F. girl and had seen pictures of her breast [sic]. Informants advised that this subject keeps said photographs on premises.

Defendant contends there is nothing in the affidavit upon which the issuing court could base a finding that the informants were reliable and, for this reason, that the affidavit is legally insufficient to show probable cause to issue a search warrant under the “two-prong test” of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), as applied in Davis v. State, 346 So.2d 141 (Fla. 1st DCA 1977).

The state, on the other hand, argues that the proper test of the affidavit’s sufficiency is whether a reasonable person, knowing all the facts the affiant knew, would believe probable cause existed to search defendant’s residence. E.g., State v. Heape, 369 So.2d 386 (Fla. 2d DCA 1979). The essence of the state’s contention is that the affidavit is sufficient because the informants, although unknown, appear to be victims and corroborate each other. The state’s brief does not point to any other recitals in the affidavit evidencing the veracity or reliability of the informants or their information.

We agree with defendant that the affidavit is totally lacking in facts sufficient to show the requisite veracity or reliability of the unnamed informants and the information supplied by them. The informant’s information regarding activity by the defendant within a sufficiently recent time to support a search warrant came from an unknown and unidentified white female whose credibility was not vouched for by the informant, much less the affiant. The last sentence of the affidavit provides the only reference to the location where the photographs might be located. Nowhere does the affiant state that the photographs were taken or displayed at the location sought to be searched. In fact, it does not appear that the affiant or the informants have ever been to the location sought to be searched.

In addition, the affidavit contains no assertion of affiant’s personal knowledge or observations that corroborate the information from the informants in any respect. We do not accept the trial court’s interpretation that the affidavit is based upon defendant’s admissions directly to the affiant. The affidavit does not say that the affiant talked with the defendant; rather, it suggests that the affiant was relying solely upon information supplied to him by the unnamed informants — and even then it is not possible to determine with any degree of certainty what information was supplied by which informant or whether all information came to the officer through a single unnamed informant. The affidavit fails to recite facts or indicia of the informants’ reliability that are legally sufficient to support a finding of probable cause. Davis v. State, supra.

We have also analyzed the sufficiency of this affidavit in light of the “totality of circumstances test” recently announced by the Supreme Court of the United States in Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). That decision was issued after the briefs were filed in this case. The Court there held:

For all these reasons, we conclude that it is wiser to abandon the ‘two-pronged test’ established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations.... The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to insure that the magistrate had a ‘substantial basis for ... concludpng]’ that probable cause existed.

At -, 103 S.Ct. at 2332, 76 L.Ed.2d at 548.

The “totality of circumstances test” does not discard entirely the necessity for determining the veracity or reliability of the informants and their information; on the contrary, such inquiry is still an integral part of the totality of the circumstances that must be considered, although it is no longer necessarily conclusive. We note that the affidavit here did not recite facts showing that any of the officer’s investigative activities and observations substantially corroborated the information received from the informants, as did the affidavit in Illinois v. Gates, supra, and other decisions cited therein. Lacking this independent corroboration, the affidavit in this case is equally insufficient under the “totality” test. Accordingly, it was error for the court to deny defendant’s motions to suppress.

WITHDRAWAL OF PLEA

On November 1, 1982, defendant appeared in court with the public defender and entered a plea of nolo contendere to all pending charges. Upon questioning by the court, in accordance with Rule 8.172, Florida Rules of Criminal Procedure, defendant indicated, usually by a “yes” or “no” answer, that he understood the maximum possible sentence to be one hundred years; he was satisfied with his counsel; he was not “forced; threatened or coerced” to so plead; and he understood he was giving up his rights to have the state prove the charges beyond a reasonable doubt, to a trial by jury, to confront and cross-examine witnesses testifying against him, to call witnesses in his behalf, and to appeal his conviction except on the matters expressly reserved. Defendant was also asked and answered the following:

Q. Are you under the influence of any controlled substances or narcotics or alcohol or anything at this time, or have you been for the last 24 hours?
A. No, sir.
Q. Have you understood fully everything that’s been said during the course of these proceedings this morning?
A. Yes, sir.

Thereupon, the court accepted the plea, but withheld adjudication of guilt and sentencing until December 6, 1982.

One week later, defendant wrote a letter to the trial court requesting, in effect, that the court set aside the plea bargaining agreement and permit defendant to withdraw his nolo plea. He contended, among other things, that he was under the influence of drugs at the time of the hearing and had been under such influence for many hours before the hearing, that his appointed counsel had yelled at him to plead nolo, and that he agreed to the plea bargain on the morning of the hearing so that his appointed counsel “would not yell at me.” A week later, his public defender filed a formal motion to withdraw as counsel on grounds defendant claimed his plea had been coerced by such counsel.

At a hearing on these matters, held November 18, 1982, the public defender was allowed to withdraw, and a private practicing attorney was appointed by the court to represent defendant. This newly appointed attorney was unable to participate effectively in the hearing to set aside defendant’s plea because, in his words, he was “obviously not prepared to argue the facts of the case” and had no prior contact with defendant. Nevertheless, the trial judge proceeded to interrogate the defendant, at times over the objection of his newly appointed counsel, concerning the basis of his letter request to set aside his plea (no formal motion had been filed by the public defender). The defendant was sworn as a witness and explained in response to questions from both the court and the prosecutor that he met with his appointed public defender on Sunday, the day before the hearing; that counsel kept saying “plea bargain,” but defendant insisted, “I want them to take me to court and prove that I did something. I didn’t do anything”; that he had taken eight phenobarbitol tablets from Sunday afternoon to Monday morning an hour before the plea hearing, and this drug made him feel “fantastic” and so relaxed that he felt he was “floating”; that he finally agreed that morning to permit his counsel to plea bargain; that prior to the hearing he and the public defender had reviewed all of the questions to be asked by the court and rehearsed the “right” answers to be given by defendant; and that as he stood before the court that morning he did not understand everything that took place (in spite of his answer to the contrary that day) because his mind was not “on what I was supposed to be doing,” so he just answered “the right way.”

Defendant had been seeing a psychologist for individual therapy since July of that year. Defendant had that doctor present at the hearing that morning. The doctor was called by the state and testified, in response to questions by the prosecutor and the court, that the defendant came to see him immediately after the plea hearing and said, with no anxiety, “I’ve plea bargained and I’m going to do a year in jail”; that this was a marked change from his usual behavior because all along defendant had adamantly proclaimed his innocence; that the defendant said he had been taking phe-nobarbitol at the time; that defendant appeared to be sedated and his behavior differed perceptively from normal in that at prior sessions defendant was usually “uptight,” “anxious,” “hyper,” and “verbose,” but that morning was sedate and quiet. The doctor said he did not see defendant actually take any phenobarbitol tablets and testified, when asked by the court:

Judge: Well, you might be sedated and you might be drowsy, but would that impair his ability to understand what was being asked of him?
A. It is hard to say. It is hard to say.

Immediately after the above answer by the doctor, the court summarily denied the motion to withdraw without hearing argument from anyone, apparently concluding that the testimony of defendant’s doctor had not carried the burden of establishing sufficient mental impairment to warrant setting aside the plea. No other evidence was presented by the state to dispute the testimony of the doctor or defendant.

Although the state had announced its intention to call defendant’s court-appointed public defender to testify on this matter, he was not called, and the record is silent on whether counsel could dispute or confirm the defendant’s contentions. Defendant’s newly appointed counsel apparently had not discussed this matter with the public defender and neither participated in the questioning nor presented argument in defendant’s behalf.

Rule 3.170(f), Florida Rules of Criminal Procedure, provides that “the court may, in its discretion, and shall upon good cause, at any time before a sentence, permit a plea of guilty to be withdrawn” (emphasis supplied). The burden is upon a defendant to establish good cause under the rule, and use of the word “shall” indicates that such a showing entitles the defendant to withdraw a plea as a matter of right. Use of the word “may,” however, suggests that the rule also allows, in the discretion of the court, withdrawal of the plea in the interest of justice, upon a lesser showing than good cause. In any event, this rule should be liberally construed in favor of the defendant. Adler v. State, 382 So.2d 1298, 1300 (Fla. 3d DCA 1980). The law inclines toward a trial on the merits; and where it appears that the interests of justice would be served, the defendant should be permitted to withdraw his plea. Morton v. State, 317 So.2d 145, 146 (Fla. 2d DCA 1975). A defendant should be permitted to withdraw a plea “if he files a proper motion and proves that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances affecting his rights ” (emphasis supplied). Baker v. State, 408 So.2d 686, 687 (Fla. 2d DCA 1982).

The uncontroverted testimony before the court below was no doubt sufficient to warrant allowing defendant to withdraw the nolo contendere plea. Defendant’s testimony was sufficiently corroborated by the doctor, under questioning by the prosecutor, to establish that defendant was in a state of mental weakness at the time he agreed to plea bargain and announced his plea to the court. The state offered no evidence to dispute this. The defendant promptly raised his objection before the court had adjudicated him guilty under the plea, and it did not appear that the state would have been prejudiced upon trial of the case by permitting withdrawal of the plea just eighteen days after it was entered. Under these circumstances, we believe the court, exercising its Rule 3.170 discretion, could well have permitted defendant to withdraw his plea. But we need not now decide whether the court abused its discretion in denying the withdrawal.

The trial court’s handling of this case and the sentence imposed show considerable understanding of the defendant’s, mental and emotional disabilities. However, it is apparent from the record that defendant did not receive a fair hearing on his request to withdraw his plea. He was compelled to proceed without effective assistance of counsel and was in no position to appreciate his legal burden to obtain the requested relief. He did not actually attempt to present any evidence at the hearing. We conclude that the denial of his motion should be reversed to afford defendant an opportunity for a full hearing on this matter at which he can be effectively represented by counsel. See, Baker v. State, 408 So.2d 686, 687-688 (Fla. 2d DCA 1982).

We AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.

SHIVERS, J., concurs.

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

MILLS, Judge,

concurring in part and dissenting in part:

I agree with the majority that the trial court did not err in denying Yesnes’ motions to dismiss but it did err in denying his motions to suppress.

I do not agree with the majority that the trial court erred when it refused to allow Yesnes to withdraw his pleas of nolo con-tendere.

All courts are constantly criticized for delay in meting out justice and for putting the taxpayers to the extra expense of providing indigent criminals with multiple attorneys and multiple hearings. This case is a good example of a trial court trying to avoid both criticisms but to no avail.

Everyone seems preoccupied with providing perfect justice, especially to those charged with crime and also indigent. It is impossible for human beings to provide per-feet justice for anyone. Only God can do this.

There are no criminals, there are no crimes, that are identical or the same. Similar, maybe, but no more. Each criminal and each crime requires different treatment. To do more, to do less, results in less than justice.

We should be grateful that this great country of ours has perfected the greatest justice system known to mankind. We should continually strive to better it. But, while doing this, should we ignore the rights of the lawful, should we ignore the rights of victims, should we ignore the rights of taxpayers? No! Should we consider only the rights of criminals who have shown no respect for their victims, for the law of the land, for the constitutions of our country and state? No!

Yesnes was provided with a public defender at the taxpayers’ expense. This attorney plea bargained with the State and subsequently appeared with Yesnes before the trial court where Yesnes pled no contest to the charges made against him. Before accepting Yesnes’ plea of no contest, the trial court asked Yesnes if he was satisfied with his attorney, if he was forced to plead no contest, if he was under the influence of narcotics and if he understood everything said during the proceedings. Yesnes responded that he was satisfied with his attorney and that he understood everything said at the proceeding. He replied that he was not forced to plead no contest and that he was not under the influence of narcotics. Yet, one week later, he wrote the trial court that his attorney forced him to plead no contest and that at the time he pled he was under the influence of narcotics. Amazing.

Yesnes showed no respect for the children whose bodies he desecrated. He showed no respect for the law. He showed no respect for the trial court.

Nevertheless, the trial court gave Yesnes a hearing on his request for withdrawal of his plea. The trial court granted the public defender’s request to withdraw as attorney for Yesnes because Yesnes charged the attorney with forcing him to plead no contest. A private attorney was appointed to represent Yesnes.

Yesnes contended he was under the influence of narcotics at the time he pled, although he told the trial court at that time that he was not. The psychologist who was called to testify and who was counseling Yesnes before he pled no contest stated he could not say that Yesnes was prevented from understanding the plea hearing. His conclusion was based on Yesnes’ delayed statement that he was under the influence of narcotics.

The record indicates that when Yesnes pled no contest he was alert enough to correct the trial court’s statement regarding his “guilty plea” with the statement, “No contest, sir.”

There is no record evidence to support Yesnes’ charge that his attorney forced him to plead no contest.

There is no abuse of discretion by the trial court in denying Yesnes’ request to change his plea because there is competent substantial evidence that Yesnes was alert, fully understood what was said and knew what he was doing.

It is popular today for criminals to contend that their trial attorneys were ineffective, thus, they should be granted a new trial. Poppycock. In most instances, this is untrue and usually is clearly untrue. Apparently, Yesnes is laying the predicate for future motions.

I would affirm the trial court’s denial of Yesnes’ motions to dismiss and motion to withdraw plea. I would reverse the trial court’s denial of his motion to suppress.

      . In view of this determination, it is not necessary to discuss defendant’s contention that the materials seized went beyond the scope authorized by the warrant.


author: MILLS, Judge.

text:
    Frank McELVEEN, Appellant, v. STATE of Florida, Appellee.
    No. AR-33.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1983.

      William R. Slaughter, II, of Slaughter & Slaughter, Live Oak, for appellant.
    Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

McElveen appeals his conviction and sentence for possession of more than twenty grams of cannabis. He raises two issues on appeal. We reject McElveen’s first contention that the chain of custody of the cannabis was not established, but we agree with his second contention that the trial court erred in sentencing him as an habitual felony offender.

While arresting McElveen, Officer Roberts of the Live Oak Police Department seized a bag containing what Roberts thought was cannabis. He subsequently mailed the contents to the Tallahassee Regional Crime Lab for identification. Roberts testified that the contents were in a plastic bag which, in turn, was in a brown paper bag. He further testified that he put the double-bagged substance into a cardboard box and sent it by certified mail to the lab.

Phaffman, a chemist at the lab, testified that she received the cardboard box from Roberts, but that the enclosed substance was double-bagged in two plastic bags, not in a plastic inner bag and a paper outer bag the way Roberts had testified he sent it. Phaffman performed various tests and determined the substance weighed 327 grams and that it contained cannabis.

Roberts testified that he got the substance back from the lab in the same cardboard box and plastic inner bag, but that the paper outer bag had been replaced with a plastic bag.

Defense counsel objected to admission of the cannabis into evidence on the grounds that this discrepancy in the testimony made it impossible for the State to establish the chain of custody. The trial court overruled the objection and admitted the cannabis into evidence. McElveen now contends this was error because the testimony concerning the packaging of the cannabis indicated probable tampering, thereby placing the burden on the State to prove there was no tampering with the evidence.

The proper test in this instance for determining whether the chain of custody was established is whether there was an indication of probable tampering with the evidence. Stunson v. State, 228 So.2d 294 (Fla.3d DCA 1969). The question then becomes whether the testimony concerning the packaging of the cannabis indicated probable tampering. We think not.

There was no indication that anyone had tampered with the substance itself or with the plastic inner bag. Also, one of the witnesses may have been confused about the packaging. Here, the possibility of tampering did not rise to the level of a probability. The trial court properly admitted the cannabis into evidence.

McElveen’s other contention is that the trial court based its finding, that sentencing McElveen to an extended term of imprisonment pursuant to Section 775.084, Florida Statutes (1981), was necessary for the protection of the public, on uncorroborated hearsay in the presentence investigation report (PSI). This, of course, would violate due process requirements. Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979); Eutsey v. State, 383 So.2d 219 (Fla.1980). We find the trial court relied on uncorroborated hearsay in the PSI report and therefore vacate the sentence and remand for a new sentencing hearing.

At the sentencing hearing, the State offered a certificate of parole and documentary proof of two prior felony convictions. The PSI report was also before the trial court. No witnesses were called. From those documents, the trial court made its sentencing determination.

Defense counsel objected to consideration of the PSI report, objecting specifically to hearsay statements made by the parole officer and others. McElveen himself also addressed the trial court and contested matters in the PSI report. With these objections before the court, the State was obligated to provide corroborating witnesses subject to confrontation and cross-examination by the defendant. See Adams, 376 So.2d at 50.

The State asserts that the determination that an extended sentence was necessary for the protection of the public was not based on the PSI report but on the proof of two prior felony convictions and the certificate of parole. This assertion, however, is not supported by the trial court’s written findings. Among the items specifically considered by the court were “appropriate matters” in the PSI report, “the comments of his [McElveen’s] probation officer as reflected in the presentence investigation report,” “the high number of crimes committed by the Defendant,” and “the great length of time the Defendant has been involved with the criminal justice system.” Obviously, the trial court relied on uncorroborated hearsay in the PSI report.

Accordingly, the sentence is vacated and the case is remanded for resentencing. The conviction is affirmed.

SHIVERS and ZEHMER, JJ., concur.