text:
    Ronald RICHTER, Individually, Richter Corporation, a Florida Corporation, and all others Similarly Situated, Appellants, v. FLORIDA POWER CORPORATION, Appellee.
    No. 78-488.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 1979.
    As Amended Jan. 23, 1979.
    L. C. Schowe, St. Petersburg, for appellants.
    Sylvia H. Walbolt and J. Brent Walker, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellee.
    Prentice P. Pruitt, Donald R. Alexander and Joseph A. McGlothlin, Tallahassee, for amicus curiae Florida Public Service Commission.
   SCHEB, Judge.

Appellants’ sole point on appeal succinctly posits the issue for our determination: “Does the Public Service Commission or circuit court have jurisdiction in a claim brought by the consumers [appellants] in the nature of money damages against a utility [appellee] for alleged illegal rates?”

In October 1977 Ronald Richter filed a class action in circuit court on behalf of himself and other similarly situated electricity users against Florida Power Corporation (FPC). The complaint alleged that the consumers had been forced to pay unreasonably high electrical rates because of excessive fuel adjustment charges in violation of § 366.03, Fla.Stat. (1977). The complaint sought refunds of $3.5 million to the consumers.

FPC moved to dismiss the complaint, arguing that the Public Service Commission (PSC) has exclusive jurisdiction to determine the reasonableness of rates charged by a public utility. The trial court found FPC’s point well taken and entered an order dismissing the complaint with prejudice. This appeal by the consumers ensued.

We think the trial court correctly found that under the statutory and decisional law of this state the PSC has exclusive jurisdiction to determine the matters alleged in the consumers’ complaint. Therefore, we affirm.

Chapter 366, Fla.Stat. (1977) embraces the statutory regulation of public utilities. In § 366.01 the legislature has mandated that the regulation of public utilities “is declared to be in the public interest and this chapter . . . shall be liberally construed for the accomplishment of that purpose.” Section 366.03 requires that all rates charged by regulated utilities be “fair and reasonable,” while § 366.04 gives the PSC exclusive jurisdiction “to regulate and supervise each public utility with respect to its rates . . . .” The decisional law of Florida attests to the comprehensive character of the PSC’s authority in the field of utility regulation. See, e. g., Storey v. Mayo, 217 So.2d 304 (Fla.1968).

The consumers recognize that the PSC has broad powers to set rates for regulated utilities, but contend that this power extends only to prospective rate determinations. Thus the consumers argue that PSC is not authorized by Ch. 366 to retroactively modify its final rate orders to require refunds; therefore, they contend, the PSC does not have exclusive jurisdiction to adjudicate the matters alleged in their complaint. The consumers rely upon several cases, the most compelling of which is City of Miami v. Public Service Commission, 208 So.2d 249 (Fla.1968). There the City of Miami petitioned the supreme court for cer-tiorari to review two PSC orders setting telephone rates for Southern Bell and electrical rates for Florida Power & Light. These rate orders, which had been entered at the conclusion of a one-year test period, reduced the rates that the two utilities could thereafter charge. The reason for the ordered reduction was that the companies had realized excessive profits during the test period. The City of Miami argued, inter alia, that the PSC had erred in not ordering the two utilities to refund the excessive profits they had collected during the test period. In rejecting this argument the supreme court said: “An examination of pertinent statutes [Chapter 366] leads us to conclude that the Commission would have no authority to make retroactive rate-making orders.” 208 So.2d at 259. We recognize this principle but do not believe it governs this case.

It is, of course, vital to both the regulated utility and the consumers that the PSC’s rate orders be final. Chapter 366, though it has changed to some degree since the City of Miami decision, still indicates that the PSC cannot retroactively alter previously entered final rate orders just because hindsight makes a different course of action look preferable. See, e. g., §§ 366.06(3) and 366.07. However, here the allegations of the consumers’ complaint do not fall within the normal instance of hindsight as mentioned above. The complaint alleges that the consumers were forced to pay unreasonably high fuel adjustment charges because of an illegal scheme (known as “daisy-chaining”) conducted by a fuel consultant employed by FPC; that through this daisy-chaining scheme FPC paid 54 cents per gallon for oil that had an actual value of only 21 cents per gallon; that FPC knew of this scheme, or should have known of it, yet allowed the excessive fuel costs to be passed on to the consumers through the fuel adjustment charges. So the complaint alleges actions on the part of FPC which prevented the PSC from having the true facts before it when it sanctioned the fuel adjustment charges here in question.

In Annot., 73 A.L.R.2d 939, 951-52 (1960), dealing with the power of administrative agencies to alter final orders, the author states:

Although denying, in the absence of statutory authority, the power of an administrative agency to reopen and reconsider a final decision, some courts have recognized exceptions to the rule under extraordinary circumstances, as where a substantial change in circumstances, or fraud, surprise, mistake, or inadvertence is shown. (Footnotes omitted.)

Likewise, Florida decisions recognize that an administrative agency may alter a final decision under extraordinary circumstances. Davis v. Combination Awning & Shutter Co., 62 So.2d 742, 745 (Fla.1953); 1 Fla. Jur.2d Administrative Law § 89 (1977); see generally Keating v. State ex rel. Ausebel, 173 So.2d 673, 679 (Fla.1965). This rule of law seems especially appropriate in light of the purposes of Chapter 366, and the broad power granted to the PSC under § 366.05(1) “to exercise all judicial powers, issue all writs and do all things, necessary or convenient to the full and complete exercise of its jurisdiction and the enforcement of its orders and requirements.” We think that to effectively and completely exercise its jurisdiction the PSC must have the power to alter previously entered final rate orders under extraordinary circumstances, and clearly the circumstances alleged here are extraordinary.

We find support for this view from a recent opinion from the Supreme Court of Ohio. In Ohio Power Co. v. Public Utilities Commission, 54 Ohio St.2d 342, 376 N.E.2d 1337 (1978), the Public Utilities Commission ordered the refund of unreasonable fuel adjustment charges collected by Ohio Power Company. Ohio, like Florida, has statutes giving the Public Utilities Commission power to set reasonable rates for regulated utilities. The power company appealed to the supreme court arguing (as the consumers do here) that the Commission did not have the power to retroactively change its rates and grant refunds. The supreme court rejected this argument, saying:

We perceive that the requirement of fairness which compels adjustment in rates to compensate utilities for escalating fuel costs also compels retrospective reconciliation to exclude charges identifiably resulting from unreasonable computations or inclusions.

376 N.E.2d at 1338-39. We think the rationale of this Ohio decision represents a pragmatic approach to the problem before us.

We hold that the PSC does have exclusive jurisdiction to decide the issue raised by the consumer’s complaint. The PSC is best equipped to investigate the consumers’ allegations, and, if necessary, to establish the mechanism whereby refunds could be made to the thousands of consumers affected.

Accordingly, we affirm the trial court’s order dismissing the complaint with prejudice.

GRIMES, C. J., and RYDER, J., concur.

      . As all electricity users know, electricity bills presently consist of two elements: the base rate, which covers the legitimate costs of operating the utility company; and, the fuel adjustment charge, intended to compensate the utility company for fluctuations in the price of fuel. Here the consumers’ allegations go only to the reasonableness of the fuel adjustment charges, and do not involve the base rate.

      . We point out that the consumers sought only to be reimbursed for the allegedly unreasonable fuel adjustment charges they have paid. We do not pass upon the circuit court’s jurisdiction where a plaintiff seeks consequential damages as a result of a utility’s violation of Ch. 366. See State ex rel. McKenzie v. Willis, 310 So.2d 1 (Fla.1975); Southern Beil Telephone & Telegraph Co. v. Mobile America Corp., 291 So.2d 199 (Fla.1974).

      . We pause to express our appreciation to the Public Service Commission for accepting our invitation to file an amicus curiae brief in this cause. In its brief the PSC maintains that it does have the power to grant refunds of the previously collected fuel adjustment charges. The PSC informs us that in May 1978 it engaged special counsel to investigate the matters alleged in the consumers’ complaint in connection with similar litigation pending in United States District Court, Middle District of Florida. In October 1978 special counsel made his report to the PSC recommending that FPC be required to show cause why $8.5 million in fuel adjustment charges should not be refunded to FPC customers. FPC denied any wrongdoing, but expressed a willingness to enter into settlement negotiations.. By motion FPC asked that the proceedings be held in abeyance and special counsel be ordered to confer with FPC to discuss a settlement. The motion was granted, and during the pendency of this appeal these negotiations have been in progress. Pursuant, to an order from this court to apprise us of the status of these negotiations, FPC has informed us that on December 15 special counsel reported to the PSC that a settlement proposal had been agreed to “in principle.” On December 29 a public hearing was held on the matter, and a written settlement agreement calling for a refund to the consumers of $6.5 million was executed on January 4, 1979. The PSC has approved this agreement, and a motion has been filed in the federal district court to obtain that court’s approval. Assuming the district court approves the agreement, notice to the class of persons who were FPC customers between June 1, 1973, and December 31, 1975, will be given, and they will have an opportunity to obtain refunds in accordance with the settlement agreement. FPC estimates that the refunds cannot be expected for at least six months.

      . The consumers allege in their complaint that the fuel adjustment charges were excessive from 1973 until present. The PSC points out in its amicus curiae brief that prior to December 1974 fuel adjustment charges were not subjected to a formal hearing with a concomitant final rate order; rather, the utility itself calculated the fuel adjustment charges through the use of a formula prescribed by the PSC. Since December 1974 fuel adjustment charges have been subjected to a formal hearing by the PSC. See PSC Order 6332 (October 29, 1974); 1974 Op.Att’y.Gen.Fla. 074-309 (October 9, 1974).

      . Two unpublished writs of prohibition from the supreme court also lend support to our view. In State ex rel. Florida Power Corp. v. Pfieffer, No. 46,384 (Fla. April 28, 1975) and State ex rel. Florida Power & Light Co. v. Satin, No. 47,949 (Fla. November 25, 1975) circuit judges were enjoined from hearing class-action suits filed by consumers seeking rebates of fuel adjustment charges. Though not stated on the face of the writs themselves, it is evident that the supreme court issued them on the basis of its belief that the PSC had exclusive jurisdiction to decide the rebate issue.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Marie DARRAGH, Appellant, v. Cadwallader BROCK and United States Fidelity & Guaranty Co., Inc., a Foreign Corporation, Appellee.
    No. KK-102.
    District Court of Appeal of Florida, First District.
    Jan. 9, 1979.
    Rehearings Denied Feb. 19, 1979.
    John R. Grass, Pensacola, for appellant.
    Danny L. Kepner of Shell, Fleming, Davis & Menge, Pensacola, for appellee U. S. Fidelity & Guaranty Co., Inc.
    Donald H. Partington of Clark, Parting-ton, Hart & Hart, Pensacola, for appellee Cadwallader Brock.
   PER CURIAM.

Appellant claims on this appeal that the trial court erred in granting summary judgment to the appellee-insurer. We find no error and affirm.

The action aróse out of a physical confrontation between appellant and Brock at his residence during which she allegedly received injuries. She initially sued Brock for intentional tort, but subsequently, upon learning' that his homeowner’s liability insurance excluded coverage for “bodily injury and property damage which is either expected or intended from the standpoint of the insured,” amended her complaint to allege negligence. The insurer argued below and here that Brock’s alleged acts could in no way be considered negligence.

Our review of the record supports the insurer’s position. Whatever the insured’s degree of force might have been, it is clear from the appellant’s own deposition that the natural probable, and intended result of his acts was to harm her. On this record, the'insurer’s liability was precluded as a matter of law. See West Building Materials, Inc. v. Allstate Ins. Co., 368 So.2d 398 (Fla. 1st DCA 1978); Hartford Fire Ins. Co. v. Spreen, 343 So.2d 649 (Fla. 3d DCA 1977).

Brock in his individual capacity also filed an “appellee’s brief” in this cause contesting the summary judgment in favor of his insurer. However, he failed to file a cross-appeal indicating his adversity to the appellee-insurer. We therefore find that his motion requesting appellate attorney’s fees against the insurer is precluded. Even if he had proceeded properly, there is not at this point any “judgment or decree . against an insurer and in favor of an insured” justifying an award of attorney’s fees under Section 627.428(1), Florida Statutes (1977).

Accordingly, Brock’s motion for attorney’s fees is DENIED and the summary judgment in favor of U.S.F. & G. is AFFIRMED.

ERVIN, Acting C. J., MELVIN, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Elvin ALVES and Alicia Alves, Appellants, v. ADLER BUILT INDUSTRIES, INC., a Florida Corporation, North Causeway Townhouses, Inc., a Florida Corporation, and Morton Adler, Individually, Appellees.
    Nos. 77-1363, 77-1364, 78-45 and 78-106.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Rehearing Denied Feb. 12, 1979.

      Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Robert Sussman, Hialeah, for appellants.
    Prates, Floyd, Pearson, Stewart, Richman & Greer and Scott D. Sheftall; Marlow, Shofi, Ortmayer, Smith & Spangler; Adams & Ward and Amy Shield Levine, Miami, Sidney B. Shapiro, North Miami Beach, for appellees.
    Before HENDRY, BARKDULL and KE-HOE, JJ.
   PER CURIAM.

These consolidated appeals question the propriety of three summary judgments in a negligence action. Joyce Alves, a two-year-old child, drowned while playing in and about a sand pile adjacent to a lake on property next to her parents’ home.

We affirm because the negligence of the defendants, if any (which we do not rule upon), was not the proximate cause of the accident. The negligence on the part of the parents in failing to properly supervise the two-year-old child, when they were on notice of the propensity of the child to play in and about the sand pile, was the proximate cause of her demise. Orefice v. Albert, 237 So.2d 142 (Fla.1970); Perotta v. Tri-State Insurance Company, 317 So.2d 104 (Fla. 3d DCA 1975); 59 Am.Jur.2d, Parent and Child, § 14.

In view of our ruling as to the proximate cause being a bar to this action, the other points raised in the several briefs have not been considered. Therefore, the summary judgments here under review are hereby affirmed.

Affirmed.

KEHOE, J., dissents.

      . Chuck K. Davis (the construction superintendent) took the child home on at least one occasion and gave her to her mother. Vincent Pepe (the watchman) took her home a couple of times and told the people the child was near the water. Bertram M. McCall (a laborer) took her home from the site on at least two or three occasions.


text:
    Juan Antonio ESTRAVIZ and James Edward Dean, Appellants, v. The STATE of Florida, Appellee.
    Nos. 77-2374, 77-2379.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Rehearing Denied Feb. 14, 1979.

      John H. Lipinski; Weissenborn & Burr and Lee Weissenborn, Miami, for appellants.
    Jim Smith, Atty. Gen. and Calvin Fox, Asst. Atty. Gen. and Sharon Langer, Legal Intern, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Defendants, James Dean and Juan Es-traviz, were tried together and convicted of conspiracy to sell cocaine. In addition, Dean was convicted of possession of cocaine. In these consolidated appeals both Dean and Estraviz contend that the evidence was insufficient to support the conspiracy conviction. They basically argue that there is insufficient evidence of any agreement between them to sell the cocaine.

An agreement to commit a crime may be inferred from all the surrounding circumstances. Scaldeferri v. State, 294 So.2d 407 (Fla.3rd DCA 1974). After a review of the record, we find that there was sufficient circumstantial evidence from which the jury could have drawn a reasonable inference that an agreement existed. See United States v. Gomez, 529 F.2d 412 (5th Cir. 1976).

Defendant Dean also contends that the trial court committed reversible error by denying him closing argument.

In order to make the point of denial of the right to a closing argument available as error, the defendant must have tendered and been refused the right to have his counsel make a closing argument subsequent to a closing argument against him made for the prosecution. Hall v. State, 119 Fla. 38, 160 So. 511 (1935). In the case at bar the prosecution waived closing argument and as a result, defense counsel spoke last to the jury. There being no closing argument of the prosecution to rebut, we find no error.

We also considered the remaining points of defendant Estraviz and find no prejudicial error has been made to appear.

Finally, we concerned ourselves with the general sentence of two years imprisonment for both convictions (possession of cocaine and conspiracy to sell cocaine). Under the holding in Dorfman v. State, 351 So.2d 954 (Fla.1977), the imposition of a general sentence is improper. Accordingly, we hereby vacate the two-year general sentence and remand the cause to the trial court to impose separate sentences for each of the convictions.

Affirmed in all respects except for the general sentence.


author: PEARSON, Judge.

text:
    Helen E. CONSTANCE, Appellant, v. Kate CONSTANCE, as personal representative of the Estate of Samuel J. Constance, Appellee.
    Nos. 78-143, 78-757.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Rehearing Denied Feb. 12, 1979.

      Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and Robert M. Sondak, Miami, for appellant.
    Rollins, Peeples & Meadows and Lewis Milledge, Jr., South Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PEARSON, Judge.

Defendant Helen E. Constance has brought these consolidated appeals (1) from an adverse final judgment of the circuit court and (2) from a subsequent circuit court order denying Defendant’s Motion for Relief from Judgment.

Plaintiff Samual J. Constance filed a Petition for Injunction and Other Relief on April 25,1977, against his daughter, defendant Helen E. Constance. He sought a temporary injunction and restraining order and a final injunction ordering the defendant to return certain funds removed by her from three bank accounts in the joint names of the plaintiff and defendant. On the day the petition was filed, the circuit court judge entered a temporary injunction and restraining order without notice, freezing all funds in the defendant’s bank accounts at the Florida National Bank and Trust Company. On May 2, 1977, the trial judge denied the defendant’s motion to dissolve the April 25th injunctive order. The defendant filed her answer to the petition and moved to have the petition dismissed on the basis that it was grounded upon agreements not attached to the petition. The court denied the defendant’s motion to dismiss at the commencement of trial.

Between August of 1953 and March of 1972, the plaintiff and defendant opened a joint personal checking account at the Florida National Bank and Trust Company, a joint savings account at the First Federal Savings and Loan Association of Miami and another joint savings account at the Greater Miami Federal Savings and Loan Association. In all three instances, the parties signed signature cards providing that the accounts were jointly owned by both the plaintiff and defendant, with right of sur-vivorship.

In September of 1975, the plaintiff and defendant signed a lease for a joint safe deposit box at the Florida National Bank and Trust Company. The address on the lease was that of defendant Helen E. Constance. Also, the defendant was given one of the two keys, which she has had in her possession ever since. The pass books from the two jointly-owned savings accounts were kept in this safe deposit box.

On April 7, 1977, defendant Helen E. Constance withdrew large sums of money from each of the three jointly-owned accounts. After making these withdrawals, she opened a savings account at the Florida National Bank and Trust Company in the name of “Miss Helen E. Constance, in trust for Samuel J. Constance” and she deposited the sum of her withdrawals, $38,569.67, into this account. These funds were frozen by the court order here in question.

During the trial, the defendant objected to the introduction of testimony with regard to the intention of the parties in opening and maintaining the three bank accounts in question. This objection was based on the contention that the parol evidence rule precludes testimony inconsistent with the signed writings of the parties. The defendant’s standing objection to such testimony was overruled by the trial judge, who also denied the defendant’s motions to dismiss the petition and for judgment on the pleadings. These two motions were based on the premise that the signature cards conclusively established the ownership of the funds in the joint names of the parties. The court took the position that the defendant had a right to take the funds out of the three accounts but did not have a right to dispose of or use the funds.

There was conflicting testimony throughout the trial concerning the intention expressed by the plaintiff to his daughter with regard to the money deposited in the three accounts. The plaintiff’s testimony was that he intended to leave intact the principal in each of the accounts and simply allow the two savings accounts to grow as much as possible. The plaintiff’s intention was to provide for his own security during his lifetime and for the security of the defendant, his daughter, after his death. The plaintiff testified at trial that he had stated to his daughter that she couldn’t touch anything until after I had passed away.” He further testified to having instructed his daughter that she “. . . was not to touch them [the bank books in the safe deposit box] at all in any way, shape or form.” The plaintiff’s position was that the defendant was to have access to the money only in case of an emergency.

The defendant testified that at no time was she instructed by her father that she was not permitted to take money out of the accounts. Rather, she testified that her father had told her that should the need arise, she could make withdrawals and spend money for necessities and emergencies. It was the defendant’s position at trial that she withdrew the money in question here for an emergency in order to prevent the dissipation of the accounts by her stepmother. She stated that the funds would be available to her father for emergencies and that the interest as it accrued would be turned over to him. In addition, she testified that her father told her repeatedly that he would not touch the principal in the accounts and often expressed his gratitude to her for permitting him, in his old age, to spend the interest from the accounts.

On November 18, 1977, the trial judge entered his final judgment vacating the temporary injunction and ordering Florida National Bank and Trust Company to “return” funds to the plaintiff in the amount of $38,569.67. Following a timely notice of appeal, the defendant filed a Motion for Relief from Judgment, based upon the changed circumstances resulting from the death of her father, the plaintiff. This court, having temporarily relinquished jurisdiction in order for the trial court to rule on the defendant’s motion, the trial court thereupon denied the motion and the defendant filed a notice of appeal from that order and moved in this court for the consolidation of her two pending appeals. By order of April 25, 1978, this court granted the defendant’s motion to consolidate.

The Appeal from the Final Judgment

The trial judge does not give us the benefit of his findings except to state “. that the testimony rebuts the existence of a joint tenancy . . .” Based thereon, the trial judge ordered that Florida National Bank and Trust Company of Miami (not a party to the suit below) should turn over funds in the amount of $38,569.67, “. . .to the plaintiff Samuel J. Constance.”

The first point presented on appeal urges that under the law the trial court could not order the money to be paid to the plaintiff, inasmuch as the signature card on each account stated in unmistakable terms that all the money therein was joint property. See Hinkle v. State, 355 So.2d 465 (Fla.3d DCA 1978), and Cape Coral Bank v. Kinney, 321 So.2d 597 (Fla.2d DCA 1975). There is no doubt that as between the depositor and his joint signer, there is a strong presumption of joint ownership. The Hinkle and Cape Coral Bank cases, cited above, stand for the proposition that in the absence of strong evidence of a contrary intent, the joint ownership will not be disturbed. See Spark v. Canny, 88 So.2d 307 (Fla.1956); and Maier v. Bean, 189 So.2d 380 (Fla.2d DCA 1966).

It does not follow that, as between the depositor and the joint signer, an equitable ownership cannot be asserted. That equity regards substance and not form is a time-honored maxim by which the true ownership of property may be pursued, even though a deed or grant would bar the way at law. Cf. King v. King, 55 So.2d 181 (Fla.1951).

The second point on appeal questions the sufficiency of the evidence. The court had jurisdiction to declare the ownership of the disputed funds and there was sufficient evidence before the court to determine that the plaintiff, Samuel J. Constance, was the true owner of the money. The defendant’s reliance on Sections 659.29 and 665.271, Florida Statutes (1977), as determinative of the equitable ownership of the money in the accounts, is unavailing because these statutes deal with the rights of financial institutions and do not bind these parties as between themselves.

A third point draws our attention to the fact that the relief granted included injunctive relief against a non-party, Florida National Bank and Trust Company of Miami. This error is not prejudicial to the defendant. It may be corrected by the court at any time on motion. See Fla.R. Civ.P. 1.540.

The Appeal from the Order Denying Relief from the Judgment

During the pendency of this appeal, the plaintiff died. Thereafter, the defendant moved to be relieved from the judgment on the basis of the plaintiff’s death. The trial judge denied the motion. We agree that the law does not provide a remedy as a result of the death of a party after judgment. Cf. Cape Coral Bank v. Kinney, 321 So.2d 597 (Fla.2d DCA 1975). It is an unhappy result that the defendant, by her withdrawal of the money from the accounts, deprived herself of the benefit of the expressed intent of her father to have the use of those funds after his death. Nevertheless, it is true that the courts must deal with legal rights as they exist and not with supposition. We do not know what might have happened had the defendant daughter not withdrawn the funds or the plaintiff father not brought the suit to declare his ownership.

Affirmed.

      . All but $2,000 of the $38,569.67 was earned by the plaintiff after the death of his first wife (the defendant’s mother) in 1953. The plaintiff married his present, second wife in 1954.

      . The plaintiff paid the income tax on the interest earned on the savings accounts.

      . Testimony revealed that the defendant had a physical handicap (cerebral palsy), but that she had been for many years self-supporting and has been impaired only in the sense that she needed items, due to her condition, that might be considered luxuries for non-handicapped people.

      . Upon the plaintiffs death, his second wife (his widow), Kate Constance, was substituted in his place in this cause.

      . It should be noted that the judgment does not direct that the funds be returned to the savings accounts. The return of the money to the plaintiff father was the relief sought in the complaint.


text:
    Jim SMITH, Attorney General, Department of Legal Affairs, State of Florida, and Janet Reno, State Attorney of the 11th Judicial Circuit of Florida, Appellants, v. GREEN VALLEY FOODS, INC., Safe Holding Corporation and P. S. G. Corporation, all Florida Corporations, Appellees.
    No. 78-742.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Rehearing Denied Feb. 14, 1979.
    Jim Smith, Atty. Gen. and Leonard L. Elias, Asst. Atty. Gen., for appellants.

      Burnett Roth, Miami Beach, for appel-lees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The trial court held that Title 7, Section 6a, U.S. Code Annotated, creating the Commodities Futures Trading Commission, awarded exclusive jurisdiction to this Federal agency to conduct investigations of interstate commodity transactions. With this interpretation we agree. International Trading Ltd. v. Bell, 556 S.W.2d 420 (Ark.1977); State v. Monex International Limited, 527 S.W.2d 804 (Tex.Civ.App.1975); Clayton Brokerage Company of St. Louis, Inc. v. Mouer, 531 S.W.2d 805 (Tex.1975); Securities and Exchange Commission v. American Commodity Exchange, Inc., 546 F.2d 1361 (10th Cir. 1976).

Therefore, the final judgment under review be and the same is hereby affirmed.

      . The State of Florida, through its appropriate officials has the power to investigate and prosecute intrastate commodity transactions, which may be fraudulent as to its citizens.


text:
    DADE COUNTY, a Political Subdivision of the State of Florida, Petitioner, v. Rene Miguel VALDES, Respondent.
    No. 78-1222.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Rehearing Denied Feb. 14, 1979.
    Stuart L. Simon, County Atty. and Stanley B. Price, Asst. County Atty., for petitioner.
    Leonard L. Elias, Miami, for respondent.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Dade County has filed a petition for cer-tiorari, seeking the review of an order and opinion of the circuit court (appellate division) quashing a zoning resolution of Metropolitan Dade County, which denied a change of a district boundary.

The County challenges the appellate division’s determination that the action of the Board of County Commissioners (in refusing to rezone Valdes’ property in accordance with his request) was arbitrary, unreasonable and cannot be characterized as fairly debatable. Valdes applied from the County for a zoning change from RU-2 to BU-1 (neighborhood business). He had previously been granted a use variance on his property to permit an insurance office within his single family residential structure. He now wanted to construct four separate professional offices on the property. A public hearing was held, at which the matter was discussed and deferred for later decision. Later, both the Building and Zoning and the Planning Departments recommended denial of Valdes’ zoning application. The staff recommended against granting the zoning request on the basis that the change would be detrimental to the residential character of the neighborhood [the property involved has been used as a single family dwelling]. The property itself is located on Coral Way near the Westches-ter Shopping Center. Although the neighborhood is residential in appearance, it is in fact no longer used exclusively as a residential neighborhood.

Later, after several public hearings, at which Valdes was permitted to introduce evidence as to the nature of the neighboring uses, the County Commissioners adopted Resolution No. Z-231-77 denying the requested district boundary change. The Commission refused to allow Valdes to rezone his property from RU-2 to RU-5 (semi-professional office and apartments); Valdes had scaled down his original requests. Valdes then sought certiorari review in the circuit court, contending that the action of the Commission was arbitrary, unreasonable and not fairly debatable. After a hearing, the appellate division held that there was no basis whatsoever for the continued provision that the property be zoned for residential use only and no basis for the denial of the application to change the zoning to the classification sought. The appellate division concluded that this court’s decision in City of South Miami v. Hillbauer, 312 So.2d 241 (Fla.3d DCA 1975) was directly applicable. The appellate division granted the petition, entered a writ of certiorari quashing the zoning resolution, and directed the Commission to grant the application of Valdes for a district boundary change from RU-2 to RU-SA. The County now seeks review of the action of the appellate division.

We quash the order and opinion of the circuit court. First, the issue was clearly debatable as it appeared by the County Commission and, therefore, the applicant failed to carry its burden. County of Brevard v. Woodham, 223 So.2d 344 (Fla.4th DCA 1969); Renard v. Dade County, 261 So.2d 832 (Fla.1972); S. A. Healy Company v. Town of Highland Beach, 355 So.2d 813 (Fla.4th DCA 1978). Secondly, the action of the Circuit Court, Appellate Division would have permitted the erection of a commercial building in a residential area (certainly residential in appearance) and this clearly would have constituted spot zoning and, therefore, was erroneous on this ground. Further, the order under review directed the County to affix a certain zoning classification to a particular piece of property; this is clearly contrary to announced decisions of the courts of this State. City of Miami Beach v. Weiss, 217 So.2d 836 (Fla.1969); Metropolitan Dade County v. McGeary, 291 So.2d 28 (Fla.3d DCA 1974); Town of Longboat Key v. Kirstein, 352 So.2d 924 (Fla.2d DCA 1978).

Therefore, for the reasons above stated, the opinion and order of the Appellate Division of the Circuit Court be and the same is hereby quashed.

      . We find this decision to be distinguishable from the facts in the instant case. In Hillbauer, the court noted that his property was the ***** soie remaining property north of S.W. 80th Street fronting on the west side of Red Road which is limited to single family residential use. * * * ” We find this not to be the case in this cause; there were many other properties in the area similarly situated to the Valdes property.


author: DOWNEY, Chief Judge.

text:
    Michael McLELLAN, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 78-329.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 1979.
    Rehearing Denied Feb. 13, 1979.
    Donald L. Gattis, Jr. of Wells, Gattis & Hallowes, P. A., Orlando, for appellant.
    Thomas G. Kane of Driscoll, Baugh, Langston, Layton & Kane, Orlando, for ap-pellee.
   DOWNEY, Chief Judge.

The Circuit Court of Orange County has certified to this Court the following question:

WHETHER FLORIDA STATUTE 627.-4132 PERMITS THE PLAINTIFF, MICHAEL McLELLAN, WHO OWNS AN AUTOMOBILE AND HAS A POLICY OF INSURANCE ON WHICH HE IS THE NAMED INSURED, TO STACK THE UNINSURED MOTORIST COVERAGES AVAILABLE UNDER THREE POLICIES IN WHICH HIS FATHER, JAMES McLELLAN, IS THE NAMED INSURED.

Attached to the Certified Question is a stipulation of facts upon which the question should be resolved. It appears therefrom that the plaintiff, Michael McLellan, age 28, lives with his father. On December 16, 1976, while driving his own car, Michael was involved in an automobile accident with an uninsured motorist. Michael’s vehicle was insured by defendant, State Farm Mutual Automobile Insurance Co., and said carrier paid Michael $15,000 pursuant to the uninsured motorist provisions of said policy.

Michael’s father owns three automobiles, all insured by State Farm. Michael contends in this litigation that he is entitled to stack the uninsured motorist coverage contained in each of those three policies on to the coverage contained in the policy on his own car. Thus, the certified question.

It appears conceded that prior to the passage of Section 627.4132, Florida Statutes (1976), Michael would have been entitled to stack the uninsured motorist coverage contained in his father’s three policies upon his own. However, in 1976 the Legislature passed the aforementioned statute which provides:

“If an insured or named insured is protected by any type of motor vehicle insurance policy for liability, uninsured motorist, personal injury protection, or any other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. However, if none of the insured’s or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not be added to or stacked upon that coverage. This section shall not apply to reduce the coverage available by reason of insurance policies insuring different named insureds.”

The obvious purpose of the statute is to prohibit the stacking of coverages and to restrict an insured or named insured to the coverage contained in the policy covering the vehicle he was operating. Or if the vehicle involved in the accident is not owned by insured or named insured, then coverage is available only to the extent of coverage on any one vehicle with applicable coverage. However, .it is the last sentence of the statute which is not clear and constitutes the issue to be resolved on this appeal.

Plaintiff contends that the purpose to be served by inclusion of the last sentence was to permit stacking of coverage only in the case where the policies involved were issued to different named insureds. In this case Michael was the named insured on his policy and his father was the named insured on his three policies, thus Michael argues the last sentence preserves his right to stack.

Defendant, on the other hand, contends that the Legislative purpose in passing Section 627.4132, supra, was to eliminate stacking entirely. Therefore, in construing the statutory section involved we must seek to arrive at a construction which will effectuate that purpose, State ex rel. Triay v. Barr, 79 Fla. 290, 84 So. 61 (1920), and avoid any construction which would impair, nullify or defeat the result intended, or produce unreasonable, absurd or ridiculous consequences. City of St. Petersburg v. Siebold, 48 So.2d 291 (Fla.1950).

Defendant suggests the last sentence was added so that in applying this section to an injured person to whom several policies are applicable the injured person can recover on the policy providing the largest coverage. In other words, if the injured person would ordinarily be entitled to coverage under several policies he is entitled to the benefits of the policy affording the largest amount of insurance coverage. Construed in that fashion, the section will not apply to reduce the maximum coverage contained in any one applicable policy.

Adhering to the rules of statutory construction, we are compelled to agree that the defendant’s construction is the only one which we can conceive of which is consistent with what we perceive to be the legislative intent in passing the section in question.

Plaintiff has attached an affidavit from a member of the Legislature at the time the act in question was passed stating his view of what the Legislature intended by the provision in question. However, such proof is generally not accepted as admissible evidence to demonstrate legislative intent. Security Feed and Seed Co. v. Lee, 138 Fla. 592, 189 So. 869 (1939).

In view of the foregoing, the certified question is answered in the negative.

Accordingly, this cause is remanded to the trial court for further proceedings.

LETTS and MOORE, JJ., concur.

      . Tucker v. Government Employees Insurance Company, 288 So.2d 238 (Fla.1973); Sellers v. United States Fidelity and Guaranty Company, 185 So.2d 689 (Fla.1966); Sellers v. Government Employees Insurance Company, 214 So.2d 879 (Fla. 1st DCA 1968).


author: ERVIN, Judge.

text:
    NEWKIRK CONSTRUCTION CORPORATION, a Georgia Corporation, Appellant, v. GULF COUNTY, Florida, a political subdivision of the State of Florida, and Dependable Insurance Company, Inc., a Florida Corporation, Appellees.
    No. II-191.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1979.
    Rehearings Denied Feb. 19, 1979.

      Cecil G. Costin, Jr., Port St. Joe, for appellant.
    William J. Rish, of Rish & Witten, Port St. Joe, for appellee Gulf County, Florida.
    Rowlett Bryant, of Bryant, Daniel, Thompson & Kurvin, Panama City, for ap-pellee Dependable Ins. Co., Inc.
   ERVIN, Judge.

Newkirk Construction Corp. appeals from the lower court’s final judgment of inter-pleader which permitted Gulf County to interplead as defendants Newkirk and its surety, Dependable Insurance Company.

Newkirk and Gulf County contracted for Newkirk to build a water distribution and sewage collection system. The county was required by the contract to make progress payments for completed work at a rate of 90% of the earned estimate. Newkirk was the principal on Dependable’s performance bond in favor of the county. In June, 1977, after Newkirk had commenced construction, Dependable sent a letter to the county enclosing a letter from Newkirk. New-kirk’s letter read:

“This letter is to advise you that my company is working very closely with Dependable Insurance Company, surety under the above-mentioned bond, due to difficulty on another project, and this is my written consent for you to make all checks jointly payable to Dependable Insurance Company, Inc., and Newkirk Construction Corporation.”

Dependable’s letter advised that Newkirk had made an irrevocable assignment of progress payments to Dependable. After the county had made one joint progress payment for about $33,000, Newkirk informed the county it was rescinding its earlier letter and requested that future payments be made only to Newkirk. The county refused. Later Dependable refused to endorse the checks made payable to both it and Newkirk and returned them to the county instead. Newkirk terminated its contract with the county, stating it was unable to continue construction without the progress payments. The county filed an action for interpleader, alleging that it owed either Dependable or Newkirk approximately $42,000. The lower court found that Newkirk and the county had amended their contract as to the manner in which progress payments were to be made and entered the judgment of interpleader.

We agree with Newkirk that the record does not support a finding that its contract with the county was amended. Modifications of contracts must be supported by new consideration as well as the consent of both parties. Moreover, a party who alleges a contract has been modified has the burden of proving it. 7 Fla.Jur., Contracts, §§ 169, 234. The county failed to show that the construction contract was modified or amended. Newkirk never characterized its letter as an amendment to the terms of the contract. The letter stated simply that Newkirk consented to payments being made jointly to both it and Dependable. At most, the letter did not involve any change in the ownership of progress payments but was simply Newkirk’s direction as to the manner in which the payments were to be disbursed. Dependable’s assertion that the letter was an irrevocable assignment does not affect the contract between Newkirk and the county. Thus, when Newkirk later requested that it be paid directly, the county was under no obligation to anyone other than Newkirk, the party with which it had contracted.

We also conclude that interpleader was not proper in this case because, absent an amendment to the construction contract for the benefit of Dependable, the county failed to show that Dependable had any possible claim against it for progress payments. Fla.R.Civ.P. 1.240 provides in part:

“Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability.”

The rule clearly states that it is only those persons having claims against the plaintiff who may be joined as defendants in an interpleader action. At the time the county filed its action in interpleader, Newkirk was not in default, nor was there any allegation that it was so. Moreover the performance bond between Newkirk as principal and Dependable as surety permitted the surety, only after its principal’s default, to remedy the default and complete the contract. As a result, any right which Dependable had against the county arose after default and upon its subrogation to Newkirk’s contractual rights through its performance. As stated in Corbin On Contracts, § 902 at p. 609: “As long as the contractor has committed no vital breach, he has a right to payments as provided in the contract * * *. As long as the contractor is performing as agreed, the owner must pay as agreed; and the surety has no right, by subrogation, that the payments shall be withheld. After breach by the contractor, the situation changes.”

Progress payments for work already performed by the contractor are wholly the property of the contractor since no right arises in the surety until it comes in and performs following the contractor’s breach. See Fidelity and Deposit Co. of Md. v. Scott Brothers Construction Co., 461 F.2d 640 (5th Cir. 1972); Aetna Casualty and Surety Co. v. Atlantic National Bank of West Palm Beach, 430 F.2d 574 (5th Cir. 1970); Kane v. First National Bank of El Paso, Tex., 56 F.2d 534 (5th Cir. 1932). In the latter case, the court stated:

Money or checks paid to [the contractor] as the work progresses are the property of the contractor unincumbered by any trust, just as are payments to others for goods manufactured or services performed. 56 F.2d at 535.

While interpleader may be invoked when a party is or may be exposed to multiple liability and fears the threat of litigation, A/S Krediit Pank v. Chase Manhattan Bank, 155 F.Supp. 30 (S.D.N.Y.1957), there must be a bona fide fear of exposure to double liability at the time interpleader is sought. John Hancock Mutual Life Insurance Co. v. Beardslee, 216 F.2d 457 (7th Cir. 1954); Fulton v. Kaiser Steel Corp., 397 F.2d 580 (5th Cir. 1968); Am. Fidelity Fire Ins. Co. v. Construcciones Werl, 407 F.Supp. 164 (D. Virgin Islands, 1975). In Bierman v. Marcus, 246 F.2d 200, 202 (3d Cir. 1957), the court, in dismissing a federal inter-pleader action under Fed.R.Civ.P. 22, stated, “While the stakeholder is not obliged at his peril to determine which claimant has the better claim, he must have some real and reasonable fear of exposure to double liability or the vexation of conflicting claims.” Obviously there can be no valid fear by Gulf County of exposure to conflicting claims to progress payments owed by it to Newkirk for work the latter had already performed.

Dependable also argues that the lower court’s finding that the construction contract was amended is interlocutory and not reviewable at this time. However, the lower court’s judgment of interpleader, though interlocutory to Newkirk and Dependable, was final to the county and ap-pealable as such by all the parties. See Miller v. Gulf Life Insurance Co., 148 Fla. 1, 3 So.2d 519 (1941), and Berkan v. Brown, 231 So.2d 871 (Fla. 3d DCA 1970).

We conclude, in the absence of default by the contractor, the county had no bona, fide threat of exposure to suit by the surety. It was therefore improper for the interpleader action to proceed.

REVERSED.

McCORD, C. J., and MELVIN, J, concur.

      . The termination was made pursuant to § 18.5 of the general conditions of the contract, which permitted the contractor to terminate, if through no fault of his own, the owner, after a time certain, failed to pay the contractor pursuant to the conditions of the contract. Neither the county nor the surety argues that New-kirk’s termination constituted a default.

      . The federal rule is practically identical to Fla. R.Civ.P. 1.240. Cases interpreting the federal rule are persuasive in cases arising under the Florida rule. 18A Fla.Jur., Interpleader, § 12 at p. 404.


text:
    Caryl L. McLEAR, Appellant, v. William Z. McLEAR, Appellee.
    No. JJ-458.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1979.
    Charles W. Arnold, Jr. of Arnold, Strat-ford & Booth, P.A., Jacksonville, for appellant.
    Floyd G. Yeager, Jacksonville, for appel-lee.
   PER CURIAM.

After reviewing the record and briefs, we find no error. The order of the -trial court is therefore, AFFIRMED.

Appellee’s motion for appellate attorney’s fees is denied. Appellant’s motion for appellate attorney’s fees is provisionally granted, and we remand this case for the trial court to set the amount under the guidelines set forth in Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

SMITH, J., and MASON, ERNEST E., Associate Judge, concur.

MILLS, Acting C. J., dissents only on the grant of attorney’s fees to appellant.


text:
    Sandy WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1142.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Rehearing Denied Feb. 12, 1979.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender and Mark Wilensky, Legal Intern, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The defendant, Sandy Williams, takes this appeal from an adjudication of guilt based upon a jury verdict and sentence upon a four count information. The judgment found the defendant guilty of (1) false imprisonment and kidnapping of one Linda Moore, (2) committing an aggravated assault upon the said Linda Moore, (3) false imprisonment and kidnapping of one James Stroman, and (4) committing an aggravated assault upon the said James Stroman. The defendant was sentenced as follows: (1) count one — fifteen years; (2) .count two— five years to run consecutively to the sentence on count one; (3) count three. — fifteen years to run consecutively to the sentences on counts one and two; and (4) count four — five years to run consecutively to the sentences on counts one, two and three.

While the evidence before the jury was conflicting in its entirety, the testimony which supports the jury verdict is that when James Stroman and Linda Moore returned to the campus of Florida Memorial College after a party, they were sitting behind Miss Moore’s dormitory. The defendant approached them from behind, pointed a gun at them and told them to walk to his car. When the three arrived at the automobile, all three entered the automobile but before the car was started, Stro-man ran away. Stroman reported the incident to the police and a search for the car and its occupants was undertaken. The defendant drove Miss Moore to a remote place where he told her to remove her clothing. Thereafter, she managed to grab the gun and a struggle ensued in which Miss Moore bit the defendant on the shoulder. The gun was discharged but Miss Moore was not struck and she was able to run away. She called her roommate, who in turn called the police, and thereafter the defendant was apprehended.

During the trial, the prosecutor inquired of the arresting officer, “What, if anything, did the Defendant tell you about the weapon being in his home?” The response was, “At that immediate time, nothing. In fact, after being advised of his rights, he didn’t say anything to us.” No objection or motion was directed by the defendant to the statement of the witnesses.

On this appeal, the defendant’s first contention is that under the law in effect at the time of the trial of this cause, he was not required to object or move upon the basis of the objectionable statement and, therefore, that the statement constituted fundamental, reversible error in the denial of a constitutional right pursuant to the law set forth in Jones v. State, 200 So.2d 574 (Fla. 3d DCA 1967). See also Bennett v. State, 316 So.2d 41 (Fla.1975); Eck v. State, 354 So.2d 459 (Fla. 4th DCA 1978), and Spann v. State, 340 So.2d 1215 (Fla. 4th DCA 1977).

The defendant admits that the decision of the Supreme Court of Florida in Clark v. State, 363 So.2d 331 (Fla.1978), is governing in all cases in which trial was held after the opinion’s publication. The decision in Clark holds that reversible error is not presented unless an objection or motion is directed to comments concerning the defendant’s failure to make a statement after having been given the required warnings. It is the defendant’s contention that the Clark holding may not be applied to trials held prior to the publication date of the opinion. The defendant supports this position with the proposition that changes in the law of procedure ordinarily will not be applied retrospectively to causes tried under a prior procedure. See Tucker v. State, 357 So.2d 719 (Fla.1978), and Williams v. State, 346 So.2d 554 (Fla. 3d DCA 1977).

Generally, a decision of the Supreme Court of Florida is applied to any appeal then pending because such an appeal is decided upon the law as it stands at the time of the decision in the appeal. Wheeler v. State, 344 So.2d 244 (Fla.1977). However, we believe we are in no way bound to deny a retrospective application of the Clark v. State decision unless we are directed to do so by the controlling opinion. See the concluding portions of the opinions in the Tucker and Williams cases, cited above.

The law as applied in Clark v. State, 363 So.2d 331 (Fla.1978), was not a procedural change in the law. • It amounted to an initial announcement by the Supreme Court of Florida of the conditions under which an appellate court could reverse for an error in the presentation of certain evidence. The decision was applicable to all appeals decided after that date. The defendant’s suggestion that he has a vested interest in the state of the law with regard to the necessity for an objection simply is not borne out by the cited cases. The defendant’s first point fails to present error because of the holding of the Supreme Court of Florida in Clark v. State, supra.

A second point presented urges that the trial court erred in failing to instruct the jury on the essential elements of the charged offense of aggravated assault. It has frequently been stated that it is the duty of a trial court to instruct the jury on the essential elements of the crime charged and required to be proved by competent evidence. See McClendon v. State, 196 So.2d 905, 910 (Fla.1967); Gerds v. State, 64 So.2d 915 (Fla.1953), and Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945). The record supports the defendant’s contention that the court in the present instance failed to give the standard instruction on aggravated assault and failed to substitute any other instruction which defined the essential elements of an assault. Here again, the defendant did not object to the failure to instruct. We hold, nevertheless, that the instruction on the elements of the charged offense is an indisputable requisite of a fair and impartial trial and, therefore, this record requires reversal of the adjudication of guilt and sentences upon counts two and four, which charged the defendant with aggravated assault.

A third point presented by the defendant claims that a sentence upon a charge of aggravated assault is forbidden as a multiple punishment where two criminal offenses,arise out of the same transaction. See State v. Munford, 357 So.2d 706 (Fla.1978). An examination of the record in the light of the defendant’s point shows that it is not well taken because the two crimes were separate and distinct. They occurred at separate times in that the assault was first completed and then the imprisonment occurred upon the further actions of the defendant in confining the victims for transportation. See Estevez v. State, 313 So.2d 692 (Fla.1975); Jackson v. State, 338 So.2d 231 (Fla. 3d DCA 1976), and Moreno v. State, 328 So.2d 38 (Fla. 2d DCA 1976).

It may appear that the holding here was rendered moot by the reversal of the adjudication of guilt on the aggravated battery counts. Such is not the case inasmuch as the aggravated assault counts may be tried again.

Accordingly, the judgment and sentences are affirmed in part and reversed in part, as follows: (1) count one — judgment and sentence affirmed, (2) count two — judgment reversed, (3) count three — judgment and sentence affirmed, and (4) count four— judgment reversed. The cause is remanded to the trial court for retrial of counts two and four.

Affirmed in part, reversed in part and remanded.


text:
    Jack J. FRIEDMAN, Appellant, v. Rose A. FRIEDMAN, Appellee.
    No. 78-166.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Rehearing Denied Feb. 12, 1979.
    Greenberg & Murray and Donald J. Murray, Miami, for appellant.
    Robert Silverstein, Miami, for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from a post-judgment order, in a divorce action, which denied the husband’s petition seeking modification of the judgment to terminate further payments of periodic alimony.

In the circumstances disclosed by the record, where notwithstanding the husband’s ability to pay the alimony, it was shown that the financial condition of the wife had improved substantially and that she had become self-supporting, we hold it was an abuse of discretion for the court to deny the husband’s petition for modification. Mumm v. Mumm, 353 So.2d 134 (Fla. 3d DCA 1977); Goldin v. Goldin, 346 So.2d 107 (Fla. 3d DCA 1977); Anderson v. Anderson, 333 So.2d 484 (Fla. 3d DCA 1976); Kennedy v. Kennedy, 303 So.2d 629 (Fla.1974); Craig v. Craig, 298 So.2d 189 (Fla. 1st DCA 1974); Thigpen v. Thigpen, 277 So.2d 583 (Fla. 1st DCA 1973); Beard v. Beard, 262 So.2d 269 (Fla. 1st DCA 1972). Cf. Gratton v. Gratton, 358 So.2d 262, 265 (Fla. 3d DCA 1978).

In 1970, at suit of the wife, the parties were divorced by a judgment in which an agreement they had made some three weeks earlier was approved and made a part.

The provisions of the agreement included the following: that the wife was to amend her complaint for separate maintenance, to seek divorce; that the husband was to convey to the wife his interest in the marital home and its furnishings; that “as the purchase price” for the wife’s stock in Engineered Castings, Inc. [representing her one-half interest in a corporate business operated by the husband] the husband would pay the wife $30,000.00, with $5,000.00 thereof payable upon the signing of the agreement and the balance payable at the rate of $100.00 per week until fully paid; and that the husband would transfer to the wife title to a certain automobile; that the wife would retain her stock until the $30,000.00 was fully paid, after which she would transfer the stock to the husband and convey to him her one-half interest in the property on which the business was located. While retaining the stock, the wife was to have the benefit of the corporation’s group medical insurance policy.

The agreement contained a provision that if the husband should die before the said $30,000.00 was fully paid, the wife would retain the stock, subject to a right of the personal representative of the husband’s estate to pay off the unpaid balance and thereupon receive the stock, if he should so elect.

Regarding alimony, the agreement contained the following provisions:

“That the HUSBAND will pay to WIFE, as alimony, the sum of ONE HUNDRED DOLLARS ($100.00) a week so long as she shall live and remain unmarried.”
4: tft sjc ‡ *
“The alimony payments provided for herein shall cease upon the death of the HUSBAND. However, all other obligations, covenants and undertakings of the HUSBAND shall continue beyond his death and become an obligation of his estate.”

Seven years later, on February 23, 1977, the husband filed his petition for modification of the judgment to be relieved of further payment of alimony. His petition alleged his past compliance with the judgment, and as a grounds for the relief sought stated: “[T]he respondent, Rose A. Friedman, has become self-supporting, and her financial situation has improved substantially,” and alleged his financial condition had worsened because of increased obligations. The wife’s answer to the petition admitted the husband’s compliance, and denied the other allegations.

The matter came on for hearing and evidence was presented, following which the trial court entered the order appealed from. Thereby, without making any findings of fact or stating conclusions of law, the court denied the husband’s petition for modification.

The husband made no showing of adverse change in his financial circumstances, in support of the allegation relating thereto in his petition. The evidence revealed that his income has steadily increased. The fact that he may voluntarily have incurred obligations is not material. On this appeal, the husband concedes his financial ability to continue to pay the alimony, but contends the change in the circumstances of the wife, consisting of an increase in her financial ability by which she is adequately self-supporting entitled him to be relieved from further alimony payments.

The showing on the record, as to the change of circumstances and financial ability of the wife, most of the evidence as to which was supplied by the wife, is that there has been a substantial increase in her financial condition, and that from her employment and other income she has become self-supporting. At the time of the divorce, in 1970, the wife had an annual income of $3,200.00. She then became the sole owner of the residence property of the parties, and was to receive $30,000.00 from the husband. The residence property had an equity value of approximately $25,000.00 [as established when the wife sold it in 1973]. With the benefit of a certain inheritance received by the wife subsequent to the divorce, by 1977 her assets amounted to approximately $185,000.00. That consisted of $178,000.00 in cash and $7,000.00 in municipal bonds, plus ownership of an automobile. Her debts did not exceed $500.00. She lives in an apartment, and it was her statement that her lifestyle is comparable to the modest lifestyle of the parties prior to her divorce. The wife has regular employment at Jackson Memorial Hospital, with substantial fringe benefits. Her annual salary in that position is between $12,000.00 and $13,-000.00. She holds a real estate salesman’s license. With her salary, and her income derived from other sources, the wife has an annual income of approximately $24,000.00 a year. Her living expenses were shown to be $12,500.00 per year. She pays approximately $6,500.00 income tax. Thus, it was shown that although the wife was not self-supporting at the time of the judgment in 1970, she had become self-supporting by 1977, and presently her annual income exceeds by several thousand dollars per year her monetary needs for support.

In Goldin v. Goldin, supra, this court, speaking through Judge Hubbart, said:

“Section 61.14(1) Florida Statutes (1975), gives a trial court jurisdiction to enter orders as equity requires upon a petition for modification of a separation and property settlement agreement as incorporated in a divorce decree based on a change in financial circumstances on the part of either party to the marriage dissolution. Contrary to the wife’s contention herein, provisions in separation agreements or final decrees fixing alimony may be modified or set aside when any of the grounds specified in the statute are shown to exist. Sedell v. Sedell, 100 So.2d 639 (Fla. 1st DCA 1958). However, if the party receiving alimony under a separation agreement gives up certain special equities in property in consideration for the alimony, only the strongest and most compelling reasons will justify a modification or a setting aside of the alimony provisions of the agreement. Sedell v. Sedell, supra. A complete termination of alimony is both authorized and required under the statute where there has been a sufficiently substantial change in financial circumstances on the part of one or both parties to the marriage dissolution. Anderson v. Anderson, 333 So.2d 484 (Fla. 3d DCA 1976); Craig v. Craig, 298 So.2d 189 (Fla. 1st DCA 1974); Schlapik v. Schlapik, 329 So.2d 379 (Fla. 3d DCA 1976).

In contending for affirmance of the order, the appellee-wife presented certain arguments which we have considered and find to be without merit. The appellee argues the showing of change of circumstances was insufficient to meet the requirements of the rule that when alimony is provided for by agreement, a stronger showing is required to justify modification. The showing here that the wife’s income had increased to an amount in excess of that needed for her support (without considering the alimony), was sufficient under that test. Appellee further argues the alimony was not subject to modification because the husband failed to show change in his financial ability. That fact is not material. It is not necessary that a sufficient change in circumstances of both parties be shown. A change in the circumstances or financial ability of either of the parties can be basis for modification. See Anderson v. Anderson, supra, (333 So.2d 484 at 487).

Appellee cites cases for the proposition that alimony agreed to be paid in consideration of a wife’s relinquishment of property rights is not subject to modification except for strong and compelling reasons. That rule is not applicable here. The wife sold to the husband her one-half interest in the corporate business, and there was a provision that the wife would retain her stock until it was paid for by the husband or by his estate after his death. In contrast, it was provided that the husband’s obligation to pay alimony would cease upon his death, although the agreement provided that other obligations of the husband would be binding upon his estate. While the wife relinquished her one-half interest in the land on which the business was located, she received a substantial equivalent by acquiring the husband’s interest in the residence property. Although the parties differed as to the value of those properties, both of which were encumbered, there was evidence that their equity values were not disparate.

Accordingly, the order appealed from is reversed, and the 1970 divorce judgment is hereby modified to eliminate therefrom the requirement for the husband to pay future installments of the alimony from and after the date of the filing of our mandate in the circuit court, subject however to a continuing right in the wife to petition the circuit court for further modification of the judgment, as authorized under Section 61.14, Florida Statutes (1977), to require resumption of payment of alimony, by reason of some subsequent change in the wife’s circumstances making the same necessary or proper.

It is so ordered.

      . “THIS CAUSE came on to be heard upon the Petition for Modification of Final Judgment, as amended April 28, 1970 of Defendant/Petitioner, JACK J. FRIEDMAN, to eliminate the provision for weekly alimony payments, and the Court having heard the evidence and argument of counsel, and being fully advised in the premises, it is
      ORDERED, ADJUDGED and DECREED that:
      1. The Petition be and the same is hereby denied, without prejudice.
      2. The Final Judgment herein, as amended April 28, 1970, is hereby affirmed, ratified and approved, and the parties are directed to carry out the terms of said Judgment as amended.
      3. Each party is to bear his or her own costs and attorney’s fees.”

      . Vance v. Vance, 143 Fla. 513, 197 So. 128 (1940); Fort v. Fort, 90 So.2d 313 (Fla.1956); Sedell v. Sedell, 100 So.2d 369 (Fla. 1st DCA 1958).


text:
    LARA EQUIPMENT CORPORATION, a Florida Corporation, Petitioner, v. ALLIANCE INSURANCE COMPANY OF McPherson, Kansas, et al., Respondents.
    No. 78-1963.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Rehearing Denied Feb. 12, 1979.
    Stabinski, Funt, Levine & Vega, Miami, for petitioner.
    Preddy, Kutner & Hardy, Miami, for respondents.
    Before HAVERFIELD, C. J., and HEN-DRY and KEHOE, JJ.
   PER CURIAM.

Petitioner seeks relief by writ of certiora-ri from an order of the Circuit Court of Dade County, dismissing its complaint against defendants/respondents for failure to attach to the complaint evidence of compliance with conditions precedent referred to in the insurance policy attached to the complaint. The evidence required was proof of loss statement and evidence of arbitration of the issues in controversy. We hold that petitioner is entitled to the relief sought as the complaint reveals the petitioner generally pled its compliance with all conditions precedent. Therefore, certiorari is granted and the order under review is quashed. See Fla.R.Civ.P. 1.120(c).

It is so ordered.


text:
    The STATE of Florida, Appellant, v. Michael Frederick HARRACH, Appellee.
    No. 78-478.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Rehearing Denied Feb. 12, 1979.
    Janet Reno, State’s Atty., and Ira N. Loewy, Asst. State’s Atty., for appellant.
    Jacobi & Jacobi, North Miami, for appel-lee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Johnson v. State, 249 So.2d 470 (Fla. 3d DCA 1971); Alexander v. State, 288 So.2d 538 (Fla. 3d DCA 1974).


text:
    James HUDSON, a/k/a James Howard, a/k/a James Hutchins, a/k/a James Adams, Appellant, v. The STATE of Florida, Appellee.
    Nos. 78-772, 78-897.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Rehearing Denied Feb. 12, 1979.
    Charles I. Poole, Miami, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g) having taken these appeals from the denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Dennis KELLERMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-436.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1979.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J. and CHARLES CARROLL (Ret.), Associate Judge.

       Chief Judge HAVERFIELD participated in the reconsideration decision in this case upon remand from the Supreme Court but did not participate in the original decision of affirmance.

   ON RECONSIDERATION, PURSUANT TO REMAND'

PER CURIAM.

On consideration of a petition for certio-rari to review this court’s judgment affirming a conviction of the defendant below [Kellerman v. State, 353 So.2d 901 (Fla. 3d DCA 1977)], the Supreme Court of Florida, 366 So.2d 882 entered an order granting certiorari and remanding the cause to this court for further proceedings consistent with the Supreme Court’s recent decision in Clark v. State, 363 So.2d 331 (Fla.1978).

Thereafter this court granted a motion of the appellant Kellerman to file a supplemental brief, with leave to the State to file an answering brief, which briefs now have been filed and considered.

On reconsideration of this appeal, we conclude that our decision of affirmance as reported in 353 So.2d 901 was correct under the law as pronounced in Clark v. State, supra, and our said judgment in this cause is hereby adhered to.

It is so ordered.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    Johnny W. STELL, Appellant, v. STATE of Florida, Appellee.
    No. 77-1231.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1979.
    Richard L. Jorandby, Public Defender, West Palm Beach, and Charles D. Peters, Asst. Public Defender, Lantana, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., and Kenneth G. Spillias, Legal Intern, West Palm Beach, for appellee.
   SCHWARTZ, ALAN R., Associate Judge.

The defendant was charged in a two count information with felony possession of marijuana and tampering with a witness (the one against him in the marijuana case.) Two jury trials were conducted. At the first, the jury found the defendant guilty of the marijuana count, but hung on the other charge. At the second, the jury found the defendant guilty of the lesser included offense of attempted tampering. On this appeal from a judgment encompassing both convictions and sentences, the defendant primarily complains that, at both trials, evidence was introduced concerning what he characterizes as plea bargaining discussions, admitted, it is contended, in violation of Fla.R.Crim.P. 3.172(h).

The record demonstrates that after the defendant was taken into custody, he initiated a conversation with the arresting officer, Detective Wilson of the Palm Beach County Sheriff’s office, under which the defendant offered to plead guilty to an unrelated misdemeanor marijuana possession charge, if the officer would drop the felony charges. Stell made the offer, he told the detective, only because he wished to avoid the expense of hiring a lawyer to defend him; he adamantly denied the felony charges and told the detective that the State could not prove them anyway. The officer declined the “offer”, and made no counter-offers of his own. In each trial the detective described this conversation and a tape of it was played to the jury. In the first trial, the only objection raised was to the alleged inaudibility of the tape, which is not pressed on appeal; at the second trial, the defendant made no objection at all to the evidence now complained of. We cannot agree with the defendant’s present contention, thus raised for the first time on appeal, that this testimony constituted evidence, precluded by Rule 3.172(h), of plea negotiations between Stell and Wilson. •

While the courts’ views as to just what constitutes “plea bargaining” or “plea negotiations” have properly broadened to include the entire range of practical situations in which that process occurs in the real world, e. g., Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Herman, 544 F.2d 791 (5th Cir. 1977); United States v. Geders, 566 F.2d 1227 (5th Cir. 1978), it is, at a minimum, required that, as the terms “bargaining” and “negotiating” themselves imply, both the defendant and the State be actually involved. It cannot include a situation such as this one, in which the defendant, for his own reasons, makes a unilateral offer to enter a particular plea which is neither initiated, approved nor responded to — in any way but rejection — by a representative of the state. Our decision in Blake v. State, 332 So.2d 676 (Fla. 4th DCA 1976) and that of the Third District in Wright v. State, 309 So.2d 215 (Fla. 3rd DCA 1975), cert. den., 323 So.2d 273 (Fla.1975), support this conclusion. Both cases held that, as stated in Blake at 332 So.2d 677, an “entirely unsolicited and self-initiated communication from the defendant,” was not subject, as a part of the plea bargaining process, to the exclusionary provisions of former Fla.R.Crim.P. 3.171(d), the predecessor of Fla.R.Crim.P. 3.172(h). The Fifth Circuit’s formulation of the rule likewise encompasses this requirement of mutuality. In United States v. Geders, supra, at 566 F.2d 1231, the Court said:

“. . . when the government and the defendant discuss his criminal activities, each side entertaining the desire to receive a quid pro quo, the government does so at its own risk that statements made by the defendant will not be admissible against him at trial.”

In this case there is no evidence that the state, through Detective Wilson, discussed Stell’s activities while entertaining, much less expressing, a “desire to receive a quid pro quo” from the defendant. Only Stell wanted something in return for an offer which the officer steadfastly declined to accept. In this area, as in so many others, it takes two to tango, and Wilson wasn’t dancing.

Moreover, it follows a fortiori from what we have said that the admission of the tape and of Wilson’s description of the conversation could not, even if incorrect, have amounted to the fundamental error required in this case for reversal because of the absence of an objection at the first trial on the ground now raised, Koran v. State, 213 So.2d 735 (Fla. 3rd DCA 1968), and of any objection at all at the second trial. Particularly since the evidence contained no admission whatever as to the offenses actually being tried, it is obvious that the defendant’s rights were not so plainly and adversely affected as to require reversal despite his failure properly to preserve the issue below. Wright v. State, supra.

Our review of the second issue raised by the appellant discloses no reversible error. The judgment below is therefore

Affirmed.

LETTS and BERANEK, JJ., concur.

      . Indeed, at the first trial, the jury was informed that Stell had been acquitted on the misdemeanor marijuana charge, thus lending even more credence to his statement that he had offered to plead guilty to it only for reasons of convenience.


author: RIVKIND, LEONARD, Associate Judge.

text:
    Michael MAGEE, a minor, by and through his mother, natural guardian, and next friend, Margaret McGowan, and Margaret McGowan, Individually, Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Keith A. Reilly, and Modern Welding Company, a Foreign Corporation, Appellees.
    No. 78-592.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1979.
    Larry Klein and Cone, Owen, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellants.
    Marjorie D. Gadarian of Jones, Paine, & Foster West Palm Beach, for appellees.
   RIVKIND, LEONARD, Associate Judge.

This is an interlocutory appeal from an order of the trial court which transferred the case from Palm Beach County to Glades County, Florida, upon ap-pellees’ Motion to Dismiss or to Transfer. This case is a personal injury action arising out of the alleged negligent operation of a boat by appellee, Keith A. Reilly, and owned by appellee, Modern Welding Company. Appellee, Liberty Mutual Insurance Company, was joined as insurer. The complaint alleged that Reilly was a Florida resident, that Modern Welding Company was a Kentucky corporation, and that the accident occurred “. . . on the Rim Canal, approximately one mile east of Moore Haven, within the confines of the State of Florida . . .” The motion filed by appellees alleged that the accident occurred in Glades County, that Modern Welding Company was a foreign corporation which did not do business in Florida, nor did it have an office or place of business in Palm Beach County, and that Reilly was not a resident of Palm Beach County. The motion was unsworn and there were no affidavits or other proof sufficient to support the allegations of the motion. The election of venue is initially with the plaintiffs. Assuming the complaint does not affirmatively show that venue is lacking, the burden of pleading and proving improper venue is upon the defendants. The allegations of the unsworn motion to dismiss or to transfer were never established by sworn proof before the trial court. We reverse. Davis v. Dempsey, 343 So.2d 950 (Fla. 3d DCA 1977); Florida Forms, Inc. v. Barkett Computer Services, Inc., 311 So.2d 730 (Fla. 4th DCA 1975); Stolley & Associates, Inc. v. Lawrence, 243 So.2d 446 (Fla. 4th DCA 1971).

REVERSED.

DOWNEY, C. J., and BERANEK, J., concur.


author: MOORE, Judge.

text:
    Ray G. BEHM and Prances K. Behm, his wife, Appellants, v. DIVISION OF ADMINISTRATION, State of Florida DEPARTMENT OF TRANSPORTATION, and Reno Orlando, et al., Appellees.
    No. 77-1490.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1979.
    Elaine N. Duggar and James J. Richardson, Tallahassee, for appellants.
    Alan E. DeSerio and H. Reynolds Sampson, Tallahassee, for appellee — State of Florida Dept, of Transp.
   MOORE, Judge.

The question presented in this interlocutory appeal is whether or not a condemnee in an eminent domain proceeding is entitled to interest on the final judgment for the period of time during an unsuccessful appeal. On the facts of this case we hold that he is not so entitled and affirm.

This cause commenced in December 1970 when the appellee (condemnor) filed its petition pursuant to Chapters 73 and 74, Florida Statutes, to condemn appellants’ (con-demnees’) property along with fourteen other parcels of property. An order of taking was entered granting condemnor possession of condemnees’ property as of March 31, 1971. Subsequently, by stipulation, condemnees were allowed to withdraw from the court registry the sum of $8,800 being condemnor’s good faith estimate of the value of condemnees’ property. The jury verdict on September 9, 1971 established condemnees’ damages at $33,725.00, including $9,500 for business damages.

Upon-entry of final judgment the clerk of the court erroneously forwarded a check in the amount of $33,725.00 to the condemnees in satisfaction of the final judgment. Discovering that he had failed to consider the $8,800 previously withdrawn, the clerk requested return of the check for the issuance of a new one in the proper amount, whereupon condemnees returned it with instructions not to issue a new check until disposal of pending motions. These instructions were apparently to avoid the consequences of Section 73.131(1), Florida Statutes (1969), which requires the dismissal of an appeal by one who accepts the amount due him by reason of the final judgment. During the course of several unsuccessful appeals the clerk paid from the court registry such sums to other property owners as to leave insufficient sums in the registry to satisfy the final judgment in favor of con-demnees.

The condemnees sought interest on that portion of the final judgment which exceeded the amount withdrawn for the period of time from the date of possession to the date of payment after all appeals had been exhausted. The trial court granted interest but not for the period requested by the condemnees. This appeal is from that order.

The condemnees contend that the only way to breathe constitutional life into Section 73.131(1) is to require payment of interest for the whole period of time until actual payment of the final judgment, notwithstanding the extended period during which they prosecuted their appeals. Otherwise, it is argued, appellants are denied their constitutional right to appeal pursuant to Article V, Section 4(b)(1), Florida Constitution, and their right to full compensation for the property taken pursuant to Article X, Section 6(a), Florida Constitution. In other words, by exercising their constitutional right to appeal they are required to sacrifice their property and the use of its money value during the appellate process, thereby denying them full compensation.

Appellants rely heavily upon M. S. Alper & Son, Inc. v. Director of Public Works, 98 R.I. 154, 200 A.2d 583 (1964). This reliance is misplaced, however, because that case did not deal with the period of time during the appellate process but rather with that period of time between the date of taking and the date upon which the jury determined the fair market value of the property. Florida allows interest for that period of time upon the excess over the amount of the condemnor’s good faith estimate of value which is deposited in the registry of the court upon taking and is available to the condemnee. Section 74.061, Florida Statutes (1969). Unlike Florida, Rhode Island made available to the condemnee only 50% of the condemnor’s offer prior to the determination of fair market value by the jury. Alper, supra, 200 A.2d at 586.

We find no constitutional infirmity under the facts of this case. “Full compensation” is determined by the jury verdict and final judgment is thereupon entered in accordance with that verdict. Under the statutory scheme in Florida the condemnor is required to deposit within twenty days after rendition of the judgment the amount set forth in the judgment into the registry of the court for the use of the condemnee; otherwise, the proceeding is null and void. Section 73.111, Florida Statutes (1969). Thus, “full compensation” is available to the condemnee immediately upon the deposit of that amount into the registry of the court unless the condemnee elects to contest the judgment on appeal. In the event that such an appeal is successful several jurisdictions provide interest on the sum ultimately found due. See, Annot., 36 A.L.R.2d 337, 463. We are not dealing with such a situation, however, as the condemnees’ several appeals were unsuccessful in the instant case.

In the case sub judice there were sufficient funds in the registry of the court, as evidenced by the clerk’s check which was forwarded to the condemnees, to pay the full compensation. The fact that the check exceeded the amount to which the con-demnees were entitled is irrelevant because the condemnees returned that check and specifically instructed the clerk not to issue another one. The refusal to accept the amount evidenced by the final judgment should not act to the detriment of the con-demnor. It is also irrelevant that during the pendency of the appeals there were insufficient funds in the registry to satisfy the final judgment. Such insufficiency would have been obviated had the con-demnees accepted payment in lieu of exercising their right to appeal. It has long been the .law of this jurisdiction that a party who accepts the benefits of a final judgment is estopped to seek reversal by appeal, and accepting such benefits amounts to a release of errors. Lovett v. City of Jacksonville Beach, 187 So.2d 96 (Fla. 1st DCA 1966). We see no justifiable reason for not applying this principle to condemnation cases.

The authorities are hopelessly divided as to when interest is available to a condemnee. See, 30 C.J.S. Eminent Domain Section 333(2). Counsel have not provided us, nor has our research discovered, any authority from this jurisdiction specifically on point. Prior to 1965, by statute, a compensation award included, as part of the “just” compensation, interest on the amount awarded from the date of surrender of possession to the date of payment. Interest was not allowed on so much of the award as had been paid into court. Section 74.06, Florida Statutes (1941). This statute was amended, however, by Section 74.061, Florida Statutes (1965), and dealt only with those situations in which there was a “quick” taking. The latter statute allows interest only for the period between the date of surrender of possession to the date of payment and only on the amount by which the verdict exceeds the estimate of value set forth in the declaration of taking. It therefore appears that the legislature has adopted the view that any provision for interest is not part of the compensation for the taking of property but rather a penalty for the delay in making such payment. The delay here was occasioned by the act of the condemnees in appealing the final judgment, albeit they had such a constitutional right. The appeals failed to increase the amount determined as full compensation by the jury. Therefore, “full compensation” was originally determined by the jury and available to the condemnees and they may not now seek interest on that amount from the time of entry of final judgment. See, Mayor, et al., of City of Liberty v. Boggess, 347 S.W.2d 247 (Mo.App.1961).

The accrual of interest on a final judgment is terminated by a tender of payment sufficient at law. Stager v. Florida East Coast Railway Co., 189 So.2d 192 (Fla. 3d DCA 1966). Pursuant to statute the condemning authority is required to deposit into the registry of the court the amount of the final judgment. Such a deposit is tantamount to a tender sufficient at law and, in the case sub judice, such a deposit was made, only to have payment rejected. We hold that the deposit into the registry of the court as required by statute tolls the running of interest on a final judgment for a condemnee who thereafter unsuccessfully attacks the final judgment on appeal.

This case focuses on a problem which warrants the Legislature’s attention. The condemnor is required to deposit monies into the registry of the court thereby losing the use thereof. The condemnee, if he elects to appeal, is precluded from withdrawing those funds. No provision exists for authorized investment of those specific funds which are deposited subsequent to final judgment. Thus, no one has the use of those funds which lie idle during the appellate process and appropriate legislation appears warranted.

Having determined that Section 73.-131(1), Florida Statutes (1969), does not suffer from any constitutional impediment and that the condemnees are not entitled to interest until the date of actual payment, the order of the trial court should be affirmed.

AFFIRMED.

ANSTEAD and LETTS, JJ., concur.

      . Section 73.131(1), Fla.Stat. (1969):
      “Appeals in eminent domain actions shall be taken in the manner prescribed by law and in accordance with the appellate rules, except that an appeal shall not prevent appropriation of the property by the petitioner where the amount awarded by the judgment has been deposited with the court as aforesaid. If, at any time after entry of the judgment, a defendant shall take out of the court the amount due him, any pending appeal taken by him shall be dismissed by the appellate court upon the filing of a certificate by the clerk of the circuit court stating that the defendant taking the appeal has withdrawn the amount due him.”