
    STATE of Florida, Appellant, v. Illinois UNDERWOOD, Appellee.
    No. 76-326.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1976.
    Philip S. Shailer, State’s Atty., and Jon H. Gutmacher, Asst. State’s Atty., Fort Lauderdale, for appellant.
    Warner S. Olds, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed.

CROSS and ALDERMAN, JJ., concur.

MAGER, C. J., dissents with opinion.

MAGER, Chief Judge

(dissenting):

In my opinion the trial judge’s order suppressing defendant’s confession as not having been freely and voluntarily made is not supported by the evidence in the record.

The hearing on defendant’s motion to suppress certain written and oral statements reflected testimony by the defendant of his denial of having made the inculpatory .statements in question. The hearing further reflected testimony by the interrogating police officer of the defendant having made the inculpatory statements in question after the giving of Miranda warnings to the defendant and of defendant appearing to be in good physical condition, coherent and fully aware of the circumstances.

Nevertheless, the trial court proceeded to predicate its order of suppression on the finding that defendant’s “physical and emotional condition and the medication he was receiving” rendered such statements involuntary even though the defendant’s testimony went solely to the issue of having made no statement whatsoever. The involuntariness of defendant’s statements based upon his physical and mental condition is not supported by the testimony of the defendant or the interrogating officer.

There is, therefore, an absence of substantial competent evidence to support the finding of involuntariness on the basis set forth in the trial court’s order and such finding should therefore be vacated and set aside.  