author: HATCHETT, Justice. ENGLAND, Justice,

text:
    STATE of Florida ex rel. Jeffrey Michael BOYD, Petitioner, v. R. A. GREEN, Jr., etc., Respondent.
    No. 52678.
    Supreme Court of Florida.
    Feb. 16, 1978.

      Alan R. Parlapiano, Public Defender, Gainesville, for petitioner.
    R. A. Green, Jr., in pro. per.
   HATCHETT, Justice.

The principal issue presented for our consideration is whether the bifurcated trial system established by statute for the adjudication of guilt and insanity in criminal trials denies a defendant his right to due process of law under the state or federal constitutions. We exercise jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, and hold Chapter 77-312, Section 1, Laws of Florida (codified as Section 921.131(1), Florida Statutes [918.017]), creating that procedure unconstitutional.

Petitioner was charged by information with burglary and entered a plea of not guilty with intent to rely on the defense of insanity. By motion to dismiss, petitioner challenged the constitutionality of the newly enacted insanity statute which (1) repeals Fla.R.Crim.P. 3.210 and (2) provides for a separate trial on the issue of insanity following trial on the issue of guilt or innocence. The trial judge ruled that Section 1 of the statute which provides for a separate trial on insanity constitutes a denial of due process of law, but upheld the constitutionality of Section 10 of the statute which repeals Rule 3.210, finding it a valid exercise of the Legislature’s authority pursuant to Article V, Section 2, Florida Constitution. The trial judge concluded that, as a result of his rulings above, the defense of insanity no longer exists in Florida and ordered the case to proceed to trial without benefit of that defense.

To fully resolve the issues presented we must also determine whether insanity as a defense existed at common law and whether Section 10 of Chapter 77-312, repealing Fla.R.Crim.P. 3.210, is so dependent upon Section 1 as to be inseparable from it.

By declaring that there is no defense of insanity in Florida, absent statute or rule, the trial court failed to recognize the common law defense as adopted by this court in Davis v. State, 44 Fla. 32, 32 So. 822 (1902):

Section 2369 of our Revised Statutes provides that “the common law of England in relation to crime, except so far as the same relates to modes and degrees of punishment, shall be of full force in the state where there is no existing provision by statute on the subject.” There is no statute defining what degree of irresponsibility shall constitute incapacity to commit a criminal act, and hence the common law rule must govern. The rule announced in M’Naghten’s case is substantially the rule laid down in all the modern English authorities, and the weight of authority in this country supports the English rule. At 827.

The origin and history of the common law defense is discussed more fully in an annotation on criminal responsibility found at 45 ALR2d 1451.

The concept of insanity as an excuse for conduct which would otherwise be punishable as a crime developed early in the history of English law. While it has been said that originally insanity was not a defense in the courts, the procedure being for the jury to find the accused guilty with a special verdict that he was mad, whereupon he would receive a royal pardon, it was early decided that there could be no crime where at the time of the act charged the accused was so insane as to be unable to form a guilty intention, although the court emphasized that insanity must be clearly shown and that not “every frantic and idle humour” would exempt from punishment. Ability to distinguish between right and wrong at the time of the act charged was soon recognized as the test to be applied, and this test received its classic formulation in the advisory opinion of the judges in M’Naghten’s Case, stating that the test of mental responsibility is whether the accused “was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” (footnotes omitted)

Florida courts have continued to adhere to the common law defense of insanity and intervening procedural rules and statutes relating to the mechanics for raising this defense have not altered its existence. Wheeler v. State, 344 So.2d 244 (Fla.1977); Anderson v. State, 276 So.2d 17 (Fla.1973); Campbell v. State, 227 So.2d 873 (Fla.1969); Holston v. State, 208 So.2d 98 (Fla.1968); Van Eaton v. State, 205 So.2d 298 (Fla.1967); and Piccott v. State, 116 So.2d 626 (Fla.1959). We therefore find that the conclusion reached by the trial judge, that his ruling effectively abolished the defense of insanity, constitutes reversible error.

We are in agreement with the trial court that the bifurcated trial procedure established by the Legislature for the adjudication of guilt and insanity denies a defendant his right to due process of law. The bifurcated trial system is not a new one. California, Arizona, Texas, Louisiana, Wisconsin, Colorado, and Wyoming have, in an effort to provide greater safeguards for a defendant, adopted by rule or by statute, systems whereby the issue of insanity is tried separately from the issue of guilt or commission of the acts charged. Legal scholars report that these states have recognized the potential prejudice which may result from the introduction of the wide range of evidence relevant to an insanity defense in a case where the defendant has pleaded not guilty by reason of insanity. Comment, Due Process and Bifurcated Trials: A Double-Edged Sword. 66 N.W. Law Rev. 327 (1971). Their position is that where evidence going to the defense of insanity is withheld from that portion of the trial in which guilt is determined, any potential prejudice is eliminated. If the jury finds that the defendant is guilty his insanity defense is explored in a separate trial. Such a procedure is not without its problems. Criminal responsibility results when each element of the crime charged has been established beyond á reasonable doubt. Coachman v. State, 114 So.2d 189 (Fla.App.1959), Kilbee v. State, 53 So.2d 533 (Fla.1951). Only then is the State authorized to exercise its power to impose certain specified sanctions against the offender. The basis of an insanity defense is that a person is unable to form the requisite intent. Since intent is an element of most crimes, lack of intent precludes criminal responsibility. Under the bifurcated system established by our Legislature, no evidence of insanity is admissible during that phase of the trial in which guilt or innocence is determined. Sanity is, in effect, presumed, giving rise to an irrebuttable presumption of the existence of the requisite intent. Thus, the State is relieved of its burden of proving each element of the offense beyond a reasonable doubt because the defendant is precluded from offering evidence to negate the presumption of intent. In reviewing its bifurcated trial statute, in light of the due process argument suggested above, the Arizona Supreme Court concluded:

To prohibit the introduction of any or all the evidence bearing on proof of insanity at the trial of guilt or innocence would deprive a defendant of the opportunity of rebutting intent, premeditation, and malice, because an insane person could have none. The first trial then would involve only proof that an act of a criminal nature had been committed, and that the defendant committed it. In effect, this gives rise to a presumption of intent, premeditation, or malice, which runs counter to the common-law and constitutional concepts of criminal law. The second trial is limited solely to the question of legal insanity, the guilt of the defendant having already been determined. There is no provision, nor realistically would there be, to determine also intent, premeditation, or malice in reduction of the degree of the crime. Thus, the presumption raised in the first trial becomes an irrebuttable presumption. Such a presumption is in violation of due process, as was pointed out in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 255, 96 L.Ed.2d 288:
Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury. State v. Shaw, 106 Ariz. 103, 471 P.2d 715 (Ariz.1970), at 724.

The Wyoming Supreme Court has held its bifurcated trial procedure unconstitutional on similar grounds. Sanchez v. State, 567 P.2d 270 (Wyo.1977). Under Wyoming’s procedure, like that of Arizona’s, any evidence going to the issue of insanity is precluded at the trial on guilt or innocence. The court, citing to Shaw, held that a defendant is denied due process of law under the state and federal constitutions, when he is precluded from offering evidence to negate the presumption of intent arising from the fact of the commission of the acts charged. The court concluded that the sanity of an accused is an integral part (element) of a determination of guilt and the state must prove beyond a reasonable doubt each element of the crime charged.

In meeting this burden, the State was impermissibly aided by a presumption of intent which arose before appellant had an opportunity to present his defense of insanity. State v. Shaw, supra. Such a manner of proceeding in criminal cases would reduce the trial to a meaningless sham which operates by tying both of the defendant’s hands behind his back. Sanchez, supra, at 280.

The Wisconsin Supreme Court has upheld its bifurcated system holding that it does not violate the requirements of due process of law. State v. Hebard, 50 Wis.2d 408, 184 N.W.2d 156 (Wis.1971). It is important to note, however, that under Wisconsin law a finding of insanity “is not a finding of inability to intend; it is rather a finding that under the applicable standard or test, the defendant is to be excused from criminal responsibility for his act.” State v. Hebard, supra, at 163. Such is not the law in Florida. The M’Naghten rule on insanity, as adopted in Davis, and recently affirmed, as modified in Wheeler, specifically contemplates the lack of an essential element of the crime, i. e., intent. Wisconsin separates the issue of intent from that of insanity and allows the introduction of all evidence relevant to intent in that portion of the trial in which guilt or innocence is determined.

California has had a bifurcated system since 1927 but has managed to salvage that system by allowing evidence of diminished responsibility, going to the issue of intent, during the guilt phase of the trial. People v. Gorshen, 51 Cal.2d 716, 336 P.2d 492 (1959), People v. Wells, 33 Cal.2d 330, 202 P.2d 53 (1949). As in Wisconsin, the issues of intent and insanity are separated and any evidence going to intent is admitted in the first trial on guilt or innocence. The doctrine of diminished responsibility is not available in Florida. Everett v. State, 97 So.2d 241 (Fla.1957); Ezzell v. State, 88 So.2d 280 (Fla.1956), and Tremain v. State, 336 So.2d 705 (Fla. 4th DCA 1976). The effect of the bifurcated system as originally established in California has been defeated by altering rules of evidence to admit the very things the system was enacted to restrict. While avoiding due process infirmities, the system as judicially defined, results in a duplication of trials and a redundancy of issues. Isaacs, The Gradual Decay of the Bifurcated Trial System in California and the Emergence of “Partial Insanity.” 3 Cal.West.L.Rev. 149 (1967).

After careful review of all the cases dealing with the bifurcated trial system on insanity, we conclude that the system established in Chapter 77-312, Section 1, Laws of Florida, raises an irrebuttable presumption of intent which is contrary to our notions of due process of law. We choose to follow the reasoning of the Arizona and Wyoming courts and hold Chapter 77-312, Section 1 (Section 921.131(1), Florida Statutes [918.-017]) unconstitutional under Article 1, Section 9 of the Florida Constitution and the Fourteenth Amendment to the Constitution of the United States.

Our final consideration in this matter is whether or not Chapter 77-312, Section 10, repealing Fla.R.Crim.P. 3.210 is constitutional. The repeal was, without doubt, a valid exercise of the authority granted to the Legislature by Article V, Section 2, Florida Constitution. The issue we must decide is whether Section 10 is severable. An unconstitutional portion of a general law may be deleted and the remainder allowed to stand if the unconstitutional provision can be logically separated from the remaining provisions, i. e., if the expressed legislative purpose can be accomplished independently of those provisions which are void, if the valid and invalid provisions are not inseparable, if the Legislature would have passed one without the other, and if an act complete in itself remains after the invalid provisions are stricken. Presbyterian Homes Synod v. Wood, 297 So.2d 556 (Fla.1974).

The manifest purpose of Chapter 77-312, Section 1, was to establish a two trial system for the adjudication of guilt and insanity. This procedure being clearly inconsistent with the procedure outlined in Rule 3.210, repeal of the rule was a logical part of the new legislative scheme. The two provisions are so connected and dependent on each other as to warrant the belief that the Legislature intended them as a whole. Where one provision is unconstitutional, all provisions dependent on it must also fall. . Re: Advisory Opinion to Governor, 63 So.2d 321 (Fla.1953), and West v. Hilburn, 70 Fla. 55, 69 So. 784 (1915). The result is the same even though Chapter 77-312 contains a severability clause. The test remains whether the portion to be stricken is of such import that the remainder would not be complete or would cause results not contemplated by the Legislature. State ex rel. Lane Drugstores, Inc. v. Simpson, 122 Fla. 582, 166 So. 227 (1935), Louis K. Liggett Co. v. Lee, 109 Fla. 477, 147 So. 463 (1933). We hold that Section 10, which repeals Rule 3.210, is such an integral part of Section 1, that it cannot be severed from it. The question now arises whether or not, as a result of our holding, Fla.R.Crim.P. 3.210 is reinstated? We answer this question in the affirmative. Where a repealing act is adjudged unconstitutional, the statute (or in this case the rule) it attempts to repeal remains in force. Re: Advisory Opinion to Governor, supra, State ex rel. Spitzer v. Mayo, 129 Fla. 426, 176 So. 434 (1937), and Messer v. Jackson, 126 Fla. 678, 171 So. 660 (1936). We hold that Fla.R.Crim.P. 3.210 is in effect and governs the trial of criminal cases in which an insanity defense is presented.

Accordingly, the order of the trial court is affirmed in part and reversed in part and the case remanded for proceedings consistent with the opinions expressed herein.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG and KARL, JJ., concur.

ENGLAND, J., concurs with an opinion, with which ADKINS, J., concurs.

ENGLAND, Justice,

concurring.

I concur with the Court’s invalidation of bifurcated insanity proceedings, but I prefer not to ground invalidity on due process considerations.

All of the Court’s discussion concerning the legislature’s having relieved the state of proving the “intent” element of most crimes, and having created an “irrebuttable presumption” of requisite intent, is accurate only if the second stage of trial is conducted before a jury different from the one which determined the defendant’s commission of the physical acts of the crime. While that is a possibility under the statute, it is not a necessity. It is arguable that proof of intent is simply shifted to a later stage of the criminal trial process if the same jury hears both stages. In these cases, due process principles are not so clearly abridged.

Whether the same or a different jury considers insanity, however, it seems clear to me that the legislature overstepped constitutional bounds when it elected to shift the presentation of evidence on the insanity issue into a second stage of trial proceedings. It is our constitutional responsibility alone to prescribe the “course, form, manner, means, method, mode, order, process or steps” by which the substantive elements of a crime are presented in a criminal proceeding. In re Florida Rules of Criminal Procedure, 272 So.2d 65, 66 (Fla.1972) (Adkins, J., concurring). I would hold Section 921.-131(1) invalid as an encroachment on this Court’s exclusive power to “adopt rules for the practice and procedure in all courts”. Article V, Section 2(a), Florida Constitution.

ADKINS, J., concurs.

      . 921.131 (918.017] Separate proceedings on issue of insanity.—
      (1) When in a criminal case it shall be the intention of the defendant to plead not guilty and to rely on the defense of insanity, no evidence of insanity shall be admitted until it is determined through trial or by plea whether the defendant is guilty or innocent of committing or attempting to commit the alleged criminal act. Advance notice of intention to rely upon the defense of insanity shall be given by the defendant as provided by rule. Upon a finding that the defendant is guilty of the commission or attempted commission of the criminal act, a trial shall be promptly held, either by the same trial jury, if applicable, or by a new jury, in the discretion of the court, solely on the question of whether the defendant was sane at the time the criminal act was committed or attempted. The defendant shall have the option, with approval of the court, of waiving the jury trial on the issue of insanity and allowing the determination of sanity to be made by the judge. Evidence may be presented as to any matter that the court deems relevant to the issue of sanity regardless of its admissibility under the exclusionary rules of evidence, except as prohibited by the Constitutions of the United States or State of Florida; provided, however, that the defendant is given the opportunity to rebut any such evidence. If the jury or the judge shall determine that the defendant was guilty of committing or attempting to commit the criminal act and was sane at the time, then the court shall proceed as provided by law. If it is determined that the defendant was guilty of committing or attempting to commit the criminal act but was insane at the time, the court shall adjudicate the defendant not guilty by reason of insanity.

      . (a) The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought. These rules may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.

      . If this act is passed by a two-thirds vote of the membership of each House of the Legislature, Rule 3,210, Florida Rules of Criminal Procedure, as amended, is repealed effective 90 days from the effective date of this act.

      .In three states where the Legislatures have attempted to abolish the common law defense of insanity the courts have held such attempts unconstitutional. See Ingles v. People, 92 Colo. 518, 22 P.2d 1109 (1933); Sinclair v. State, 161 Miss. 142, 132 So. 581 (1931); State v. Strasburg, 60 Wash. 106, 110 P. 1020 (1910). In Strasburg, the court stated:
      We believe enough has been said to show that the sanity of the accused at the time of committing the act charged against him has always been regarded as much a substantive fact, going to make up his guilt, as the fact of his physical commission of the act. It seems to us the law could as well exclude proof of any other substantive fact going to show his guilt or innocence. If he was insane at the time to the extent that he could not comprehend the nature and quality of the act — -in other words, if he had no will to control the physical act of his physical body — how can it in truth be said that the act was his act? To take from the accused the opportunity to offer evidence tending to prove this fact is in our opinion as much a violation of his constitutional right of trial by jury as to take from him the right to offer evidence before the jury tending to show that he did not physically commit the act or physically set in motion a train of events resulting in the act. At 1024.

      . As of this writing only California, Colorado, and Wisconsin retain their bifurcated systems.

      . In Colorado insanity is determined prior to the trial on guilt. By statute, two separate juries are empaneled. See Colo.Rev.Stat.Anno. Sec. 39-8-3 (1963).

      . This is further evidenced by Florida’s Standard Jury Instruction on Insanity: (b)-l INSANITY — The law does not hold a person criminally accountable for , his conduct while insane, since an insane person is not capable of forming the intent essential to the commission of a crime. A person is sane and responsible for his crime if he has sufficient mental capacity when the crime is committed to understand what he is doing and to understand that his act is wrong. If at the time of an alleged crime a defendant was by reason of mental infirmity, disease or defect unable to understand the nature and quality of his act or its consequences or, if he did understand it, was incapable of distinguishing that which is right from that which is wrong, he was legally insane and should be found not guilty by reason of insanity.

      . Additionally, in Wisconsin, a defendant may choose whether to be tried under the bifurcated procedure, or whether to proceed with a single trial where both issues are tried together.

      . Colorado also allows evidence going to intent under the diminished responsibility doctrine. Becksted v. People, 292 P.2d 189 (Colo.1956).

      . Section 11. If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared severa-ble.

       The Florida statute operating in this fashion is, in effect, no different from California’s, about which the California Supreme Court said:
      “It is to be remembered that in the eyes of the law there is still only one trial . but the trial is broken up into two sections or stages if insanity is pleaded as a defense.” People v. Wells, 33 Cal.2d 330, 349, 202 P.2d 53, 65, cert. denied, 338 U.S. 836, 70 S.Ct. 43, 94 L.Ed. 510 (1949).


source: Caselaw Access Project

author: BOARDMAN, Chief Judge.

license: Public Domain

text:
    CITY OF ST. PETERSBURG, Florida, a Municipal Corporation, Petitioner, v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, an administrative agency of the State of Florida, Respondent.
    No. 76-1435.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1977.
    Carl R. Linn, City Atty., and Richard D. Oldham, III, Asst. City Atty., St. Peters-burg, for petitioner.
    L. M. Blain and Thomas E. Cone, Jr. of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for respondent.
    J. Clint Brown and Edna Wilson of Dixon, Shear, Brown, Stephenson, Tampa, for Hillsborough County, amicus curiae.
    Jacob D. Varn of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for Pasco County, amicus curiae.
    John T. Allen, Jr., St. Petersburg, W. Gray Dunlap, Clearwater, for Pinellas County, amicus curiae.
   BOARDMAN, Chief Judge.

In October and December 1975 notice was published of the applications of the city of St. Petersburg, petitioner, for two consumptive water use permits requesting “the continuing withdrawal of water under regulatory levels as established by the Southwest Florida Water Management District,” (SWF), respondent. The applications were for withdrawal of water from two well fields, Cosme-Odessa and Section 21, located in Hillsborough County and owned by St. Petersburg. St. Petersburg amended its applications to request specific volumes of water, that is, an average withdrawal of 19 million gallons per day (mg/d) from Cosme-Odessa and an average withdrawal of 18 mg/d from Section 21, with a maximum daily withdrawal of 22 mg/d from each. After a hearing SWF issued permits authorizing an average withdrawal of 18 mg/d with a maximum daily withdrawal of 22 mg/d from Section 21 well field and an average withdrawal of 19 mg/d with a maximum daily withdrawal of 22 mg/d from Cosme-Odessa well field. The total withdrawal from the Section 21 and Cosme-Odessa fields was not to exceed 168 mg/week, which computes as 24 mg/d from both fields or 12 mg/d from each. The permits authorized withdrawal of an additional 21 mg/week during six weeks of the year to bring the total withdrawal from both fields to 187 mg/week. Regulatory levels below which the city could not pump were also established to monitor the level of the water in the Florida aquifer lying beneath the well fields. Evidence was introduced at the hearing on these applications that the levels set by the permits would allow 12 mg/d to be pumped from each field.

BASIC FLORIDA HYDROLOGY AND GEOLOGY

The basic principles of hydrology are embodied in the concept of the hydrologic cycle. This continuously recurring process is simply described as the circulation of water from the atmosphere to the surface of the earth by precipitation and from the surface to the atmosphere by evaporation. F. Maloney, S. Plager, & F. Baldwin, Water Law and Administration 141 (1968) [hereinafter Water Law]; J. Garcia-Bengochea, R. Pyne, & E. Black, Florida’s Water Resources an Evaluation and Management Philosophy 3-1, Project No. 272-75-80, Nov. 1975 (prepared for Pinellas County, Florida) [hereinafter Water Resources]. The water budget is the balance of incoming water to outgoing water. Income to a particular area is derived from rainfall and ground- and surface-water inflow from other areas. Outgo from that area is due to evaporation, plant use, and ground- and surface-water outflow to other areas. The water crop is the amount of rainfall less the amount lost by evaporation and plant use (evapotranspiration).

An aquifer is a water-bearing bed of porous and permeable sediment under the surface of the earth which stores ground water. A nonartesian aquifer occurs in unconfined or water-table conditions which permit the level of ground water to rise and fall according to the water supply. An artesian aquifer occurs when water is confined under pressure beneath a relatively impervious formation. Water Law, supra, at 143; Water Resources, supra, at 4-4. In Florida the elevation of the water-table no-nartesian aquifer is generally higher than the elevation of the artesian Florida aquifer, consequently water percolates down to the Florida aquifer from the water-table aquifer. The elevation and degree of porosity, permeability, and transmissivity of the aquifers vary throughout the state even at points located relatively close to one another. R. Cherry, J. Stewart, & J. Mann, General Hydrology of the Middle Gulf Area, Florida 45, 52 (U.S. Geological Survey, Report of Investigation No. 56, 1970).

The water-table aquifer is recharged primarily from rainwater, and the amount it can absorb is principally dependent on its composition. The rainfall, less the amount lost by evapotranspiration, which the water table cannot absorb is runoff to surface-water bodies. The Florida aquifer, which is the main source of water for consumptive use in this state, is largely recharged through inflow from ground-water sources, directly by rainfall, and through infiltration or percolation from the water-table aquifer at a rate dependent on the characteristics of the overlying beds. Water Resources, supra at 4-4. The balance between the discharge and recharge rate of the Florida aquifer depends on a number of factors, including location of ground-water wells, volume of pumpage, distance of the aquifer from the earth’s surface, contours of the surface of the earth, contours of the aquifer, vertical seepage, and ground-water outflow. Water Law, supra, at 145-46. The level of the water in an artesian aquifer at a particular point is measured by the level to which the water rises in a well sunk into that section of the aquifer. Water Law, supra, at 43; Water Resources, supra, at 4-4.

WATER RESOURCES MANAGEMENT IN SOUTHWEST FLORIDA

In 1972 the Florida Water Resources Act was enacted by the state legislature. The dual purpose of the act was to provide for conservation of the available water resources while maximizing the beneficial use of the resources. Section 373.016(1), Florida Statutes. The legislation set out certain goals which the act was designed to effect:

(a) To provide for the management of water and related land resources;
(b) To promote the conservation, development, and proper utilization of surface and ground water;
(c) To develop and regulate dams, im-poundments, reservoirs, and other works and to provide water storage for beneficial purposes;
(d) To prevent damage from floods, soil erosion, and excessive drainage;
(e) To preserve natural resources, fish and wild life;
(f) To promote recreational development, protect public lands, and assist in maintaining the navigability of rivers and harbors; and
(g) Otherwise to promote the health, safety, and general welfare of the people of this state.

Section 373.016(2), Florida Statutes. The state was divided into water management districts each headed by a governing board which was authorized, among other things, to “[i]ssue orders to implement or enforce any of the provisions of this chapter or regulations thereunder.” Section 373.-083(2), Florida Statutes.

Sections 373.203-.249, Florida Statutes, authorized implementation of a consumptive use of water permit system by each water district. Except for domestic consumption of water by individuals, all new and existing uses were subject to the permit procedure. Section 373.219, .226, Florida Statutes. The statute placed the burden on the applicant seeking new use to establish that the proposed use of water:

(a) Is a reasonable beneficial use as defined in s. 373.019(5); and
(b) Will not interfere with any presently existing legal use of water; and
(c) Is consistent with the public interest.

Section 373.223(1), Florida Statutes. A reasonable beneficial use was defined by the act as

the use of water in such quantity as is necessary for economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest.

Section 373.019(5), Florida Statutes. Application for permits for existing uses would be granted if the request was for a reasonable beneficial use and was in accordance with the common law. Section 373.226(2), Florida Statutes. At common law a landowner could withdraw from his property all the ground water he could reasonably use to the extent that it did not injure the adjacent landowner’s property. Koch v. Wick, 87 So.2d 47 (Fla.1956); Annot., 29 A.L.R.2d 1354 (1953). Additionally each district was directed to establish a minimum flow for surface water and minimum water levels for surface and ground water to be set at a point where “further withdrawals would be significantly harmful to the water resources of the area.” Section 373.042(2), Florida Statutes.

To effect implementation of a permit system, SWF promulgated certain rules and regulations, the pertinent portions of which were as follows:

Conditions for a Consumptive Use Permit.
(1) The intended consumptive use:
(a) Must be a reasonable, beneficial use.
(b) Must be consistent with the public interest.
(c) Will not interfere with any legal use of water existing at the time of the application.
(2) Issuance of a permit will be denied if the withdrawal of water:
(a) Will cause the rate of flow of a stream or other watercourse to be lowered below the minimum rate of flow established by the Board.
(b) Will cause the level of the poten-tiometric surface to be lowered below the regulatory level established by the Board.
(c) Will cause the level of the surface of water to be lowered below the minimum level established by the Board.
(d) Will significantly induce salt water encroachment.
(e) Will cause the water table to be lowered so that the lake stages or vegetation will be adversely and significantly affected on lands other than those owned, leased, or otherwise controlled by the applicant.
(3) Issuance of a permit will be denied if the amount of water consumptively used will exceed the water crop of lands owned, leased, or otherwise controlled by the applicant. (Except where determined otherwise, the water crop [precipitation less evapotranspiration] throughout the District will be assumed to be three hundred sixty-five thousand (365,000) gallons per year per acre.)
(4) The withdrawal of water:
(a) From a stream or other watercourse must not reduce the rate of flow by more than five percent (5%) at the time and point of withdrawal.
(b) Must not cause the level of the potentiometric surface under lands not owned, leased, or otherwise controlled by the applicant to be lowered more than five feet (5').
(c) Must not cause the level of the water table under lands not owned, leased, or otherwise controlled by the applicant to be lowered more than three feet (3').
(d) Must not cause the level of the surface of water in any lake or other impoundment to be lowered more than one foot (1') unless the lake or impoundment is wholly owned, leased, or otherwise controlled by the applicant.
(e) Must not cause the potentiometric surface to be lowered below sea level.
(5)The Board for good cause shown may grant exceptions to the provisions of paragraphs (2), (3), and (4) above when after consideration of all data presented, including economic information, it finds that it is consistent with the public interest.

Florida Administrative Code 16J-2.il.

POINTS RAISED BY PETITION FOR WRIT OF CERTIORARI

St. Petersburg has raised several points on this petition for writ of certiorari. The thrust of its arguments, however, is disagreement with SWF’s theory of water management.

First, St. Petersburg argues that the legislature intended any limitation on withdrawal to be set by establishing a minimum level of water in the aquifer and that the statutory directives do not allow SWF to restrict withdrawal according to a set number of gallons. We do not agree. There are several references in the act to measurement of the water to be withdrawn by volume in gallons. See, e. g., Section 373-229, Florida Statutes. Water levels are included in the statute as an additional not an exclusive means to effect regulation. Allocation of water resources by a volume measurement is not contrary to the state’s policy of maximum use of the resources and is consistent with its policy of conservation of resources. See Section 373.016, Florida Statutes.

Second, St. Petersburg argues that SWF erred by finding that its existing use was only 9 mg/d. St. Petersburg, however, has not shown that it has a reasonable beneficial use beyond the amounts authorized by the permits and as a consequence the extent of its use prior to implementation of the regulatory system need not be considered.

Finally, St. Petersburg contends that rule 16J-2.11(3) was promulgated by SWF in derogation of the stated policy of Chapter 373, that is, maximum use of the water resources. The challenged rule provides that an application will be denied if the requested withdrawal would exceed the water crop of the real property under the control of the applicant. Unlike the common law rule, the water crop theory of water management would restrict withdrawal by reference to the amount of land controlled by the user. For example, if the water crop was 1000 gallons per day per acre and the user owned 10 acres he would be authorized to withdraw 1000 gallons per day from each of 10 acres or a total of 10,000 gallons per day. We are not required to address the propriety of management by the water crop because St. Peters-burg has not been damaged by the rule at issue here. Under the challenged rule maximum withdrawal from Section 21 would be .675 mg/d and of Cosme-Odessa would be .632 mg/d based on acreage of those fields of 675 and 632, respectively, and the assumed water crop of 1,000 gallons per day per acre. The permits authorized withdrawal for in excess of what the water crop theory would allow.

By this petition St. Petersburg seeks authorization to withdraw according to regulatory levels “below which significant harm would occur to the resource. . . . ” At the hearing, however, St. Petersburg made it clear that although its main purpose at that time was to avoid a gallonage cap and to be permitted to withdraw according to regulatory levels established by SWF, it intended to challenge the validity of those regulatory levels at a later time since they were allegedly based on the water-crop theory. Petitioner has not demonstrated to this court that the regulatory levels set by the permits were established by reliance on the water crop theory, that is, withdrawal by reference to the number of acres controlled by the applicant. Although an expert witness from SWF testified that the water crop was used in establishing the levels, in our opinion he used the term only to describe the mechanics of establishing those levels. St. Petersburg has failed to demonstrate by any objective evidence that in the part of Hillsborough County where Section 21 and Cosme-Odessa well fields are located that the regulatory levels of the aquifers were'established by other than reference to the test of significant harm to the water resources of that area. There was extensive evidence submitted to the governing board of SWF that withdrawal by St. Petersburg beyond that authorized by the permits would cause- lowering of surface-water levels of surrounding property as had been occasioned prior to restricted withdrawal from those well fields. During the period of the restricted withdrawals the levels of the surface water had risen as the levels in the aquifers rose, supposedly as a result of decreased withdrawal.

St. Petersburg has also failed to delineate for this court what levels should be set if we agreed with St. Petersburg. In fact, at the hearing St. Petersburg said it did not know what those levels should be. The argument that withdrawal should be permitted until the aquifer would be harmed, such as by salt water intrusion, ignores the overall responsibility with which SWF is charged. SWF not only protects the water resources from extinction, but must also consider the effect of its management policies on the ecology of the area, the other uses of water such as recreation and transportation, and the welfare of the citizenry generally. Section 373.016, Florida Statutes.

St. Petersburg argues that SWF has not complied with the legislative directive to attain the maximum reasonable beneficial use of the available water resources. It has not, however, shown at the hearing before the governing board of SWF or on petition for writ of certiorari to this court that it has a reasonable beneficial use beyond the volume which was granted by SWF. Furthermore, at the hearing evidence was introduced that the quantity authorized was acceptable to St. Petersburg and would meet its current needs. At this point in time St. Petersburg has not shown any injury or hardship resulting from SWF’s action on their applications. Accordingly, the ruling of SWF is correct.

The petition for writ of certiorari is DENIED.

HOBSON and McNULTY, JJ., concur.

      . SWF was actually created by the legislature in 1961. The purpose of the agency at that time, however, was limited to flood control, authorized by Chapter 378, Florida Statutes.

      . It is not clear from the face of the rule whether SWF meant acreage of the proposed well field or the total acreage controlled by the applicant. Both parties and references to the water crop in the scientific data included in the record refer to acreage of a well field.


author: PER CURIAM.

text:
    Rita Carrie WALDRON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1079.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court. However we agree with appellant that there are imperfections in his sentence. The present sentence does not specify the amount of credit for time served as required by Section 921.161(1), Florida Statutes (1975). Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Moreover, the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra. The case is remanded in order to correct the sentence, and the appellant need not be present at that time.

GRIMES, Acting C. J., SCHEB, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Preston E. GANN, Appellee.
    No. 77-804.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Jack O. Johnson, Public Defender, Robert H. Grizzard, II, Asst. Public Defender, and James R. Auchak, Legal Intern, Bartow, for appellee.
   PER CURIAM.

Reversed. See Fultz v. State, 351 So.2d 414 (Fla.2d DCA 1977); Massey v. State, 348 So.2d 1244 (Fla.1st DCA 1977).

GRIMES, Acting C. J., and SCHEB and RYDER, JJ., concur.


text:
    BRADLEY HOMES, INC., a Florida Corporation, Appellant, v. George M. GONZALEZ and Carmen M. Gonzalez, his wife, Appellees.
    No. 76-2018.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.

      Keith, Mack, Lewis & Allison and Kim Ronald Blackman, Miami, for appellant.
    Maurice Rosen, North Miami Beach, Samuel Morris, Hialeah, for appellees.
    Before HENDRY, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

There was reversible error in the trial court’s entry of a summary judgment ordering defendant, Bradley Homes, Inc., to deliver a warranty deed to the plaintiffs Gonzalez.

We hold that the agreement for deed which provides in pertinent part that,

“. . . the Purchaser hereby conven-ants and agrees to pay to the Seller the sum of $11,200.00 in the manner following: $600.00 cash in hand, the receipt of which is hereby acknowledged, and $76.00 on the first day of November, 1955, and thereafter the sum of $76.00 on the first day of each and every month until the entire remaining unpaid balance shall be paid in full, together with interest thereon at the rate of 6% per annum payable monthly as herein set forth on the whole sum remaining from time to time unpaid. . ” (emphasis added)

is clear and unambiguous and calls for payment of interest of 6% on the unpaid balance. Compare Southern Inv. Co. v. Galloway, 206 Ala. 445, 90 So. 300 (1921). The balance due and owing, and whether or not Bradley Homes is estopped by its actions to recover such sums, are questions of material fact.

Reversed.


text:
    Yamil SABA a/k/a “Polaco” a/k/a “Moro”, Appellant. v. The STATE of Florida, Appellee.
    No. 76-2157.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Burns & Arnovitz and Jerold H. Reichler, Miami Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed.


text:
    Beatrice Rosalie DONNER, Appellant, v. Paul B. ANTON et al., Appellees.
    No. 77-117.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Sinclair, Louis, Siegel & Heath and Paul Siegel, Miami, for appellant.
    Abrams, Anton, Robbins, Resnick & Schneider and David L. Kline, Hollywood, Broad & Cassel and Lewis Horwitz, Bay Harbor Island, Dubbin, Schiff, Berkman & Dubbin, Heller & Kaplan and Robert Golden, Miami, Amy Linda Steele, North Miami Beach, for appellees.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed.


text:
    Constance B. MASTELLONE, Appellant, v. Diane ZEPPO, Appellee.
    No. 77-118.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    James A. Baccus, Miami, for appellant.
    A. M. Schwitalla, Miami, for appellee.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed.


text:
    Roy MOSS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-151.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Affirmed.


text:
    Scottie MACK, Appellant, v. The STATE of Florida, Appellee.
    No. 77-173.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Scottie Mack, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Marvin I. BAKER, Appellant, v. Susan S. BAKER, Appellee.
    No. 77-461.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Rehearing Denied Jan. 16, 1978.
    Hilton R. Carr, Jr. and L. J. Cushman, Miami, for appellant.
    Sinclair, Louis, Siegel & Heath and Paul Siegel, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed.


text:
    ALLEGHENY MUTUAL CASUALTY COMPANY, a Pennsylvania Corporation, Appellant, v. The STATE of Florida for the Use and Benefit of DADE COUNTY, Appellee.
    No. 77-463.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Rehearing Denied Jan. 16, 1978.
    Stuart R. Mishkin, Miami, for appellant.

      Richard E. Gerstein, State’s Atty., and John P. Durant, Asst. State’s Atty., for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed.


text:
    Louis PHILMORE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-504.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Louis Philmore, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    VAL DE FRANCE, INC., a Florida Corporation, Appellant, v. Nicholas AJHAR, d/b/a Nick Ajhar Associates, Appellee.
    No. 77-679.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Rehearing Denied Jan. 9, 1978.
    Hilton R. Carr, Jr. and L. J. Cushman, Miami, for appellant.
    Blaty & Kyne, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida, Appellant, v. Roosevelt ALLEN, a/k/a Roosevelt Goody, a/k/a Robert F. Shaw, Appellee.
    No. 77-1041.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Richard E. Gerstein, State’s Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    Mildred Smith Brown, Miami, for appel-lee.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed.


text:
    Thomas WILSON, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 77-1133.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Thomas Wilson, Jr., in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Aldore James ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1288.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Aldore James Anderson, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant filed his response thereto which was a preliminary statement entitled “Motion to Amend” filed on September 14, 1977. Thereafter, on September 23rd, the public defender filed a motion for extension of time to file statement of appellant. This motion was granted and the time for appellant to file a sworn statement or brief was extended to October 81, 1977. Thereafter, no statement or brief was filed. On consideration thereof, upon full examination of the proceedings, we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order of judgment appealed is hereby affirmed.


text:
    John Lewis LUMPKIN, Appellant, v. The STATE of Florida, Appellee (two cases).
    Nos. 77-1345 and 77-1388.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    John Lewis Lumpkin, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 886 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a' motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose'in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Michael Patrick NELSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1357.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.

      Michael Patrick Nelson, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Clifford ORRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1597.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Clifford Orris, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Charlie PERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1703.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Affirmed.


author: HUBBART, Judge.

text:
    Robert SUSSMAN, Appellant, v. Vincent DAMIAN, Jr., Appellee.
    No. 76-936.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.

      Robert M. Sussman and Thomas P. Bell, Hialeah, for appellant.
    Williams, Salomon, Kanner & Damian and Gary S. Brooks, Miami, for appellee.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   HUBBART, Judge.

This is an action and counterclaim for slander in which the trial court dismissed both claims upon the entry of two adverse summary judgments. Both parties appeal.

The issue presented for review is whether an attorney has an absolute privilege in an action for defamation to utter defamatory statements during the taking of a deposition or during a conversation with opposing counsel in connection with a pending lawsuit in which the attorney represents one of the parties involved. We hold that the attorney has such an absolute privilege during the said deposition or conversation with counsel so long as the statements uttered are relevant to the subject of the lawsuit. If not so relevant, the attorney has a prima facie qualified privilege to utter such defamatory statements which may be overcome only by evidence tending to show that the statements were made with express malice. We conclude that both privileges have been established in this case as a matter of law and affirm.

The facts herein are substantially undisputed. The plaintiff Robert Sussman and the defendant Vincent Damian are members of the Florida Bar practicing law in Miami, Florida. They each represented adverse parties in a civil action pending before the Circuit Court for the Eleventh Judicial Circuit of Florida. Damian noticed for deposition Sussman’s client in connection with the pending civil action. Present at the deposition in Damian’s office were Sussman and his client, counsel for another party in the lawsuit and his client, and a court reporter. Sussman and Damian became embroiled in a heated controversy during the deposition as to whether Suss-man’s client had produced certain documents pertinent to the case for Damian’s inspection. Damian insisted that the documents had not been so produced. Whereupon Sussman replied, “You sir, are a damned liar. I gave you everything.” The deposition was thereupon terminated.

The defendant Damian subsequently filed a motion for an order compelling the discovery of the documents allegedly not produced at deposition and for sanctions against Sussman for his behavior during the deposition. The motion came on for hearing before the trial court in the judge’s chambers. The record does not reflect the exact ruling of the court on this motion, but apparently the court did order the two lawyers to behave themselves thereafter in a professional manner.

After the hearing was concluded, Suss-man and Damian carried on a conversation in the court’s chambers, in the hallway outside the court’s offices near the courthouse elevators, and on an elevator descending to the ground floor of the courthouse. Another lawyer and .an unknown person were present during the conversation in the elevator. There is some dispute over exactly what was said during this conversation, but it clearly involved the prior court hearing on the pending lawsuit. The conversation eventually became quite heated until the defendant Damian exploded in the elevator with a strong personal attack on Sussman’s professional integrity accusing Sussman improprieties in the handling of client monies and trust funds unrelated to the subject matter of the lawsuit which up to that point was being discussed during their conversation and expressing a desire to see Sussman disbarred. of

Sussman filed a complaint against Damian for slander based on the elevator incident; Damian counterclaimed for slander based on the deposition incident. The trial court entered adverse summary judgments as to both claims. This appeal follows.

It is the established law of this state that defamatory words published by lawyers during the due course of a judicial procedure are absolutely privileged and cannot form the basis for a defamation action so long as the statements uttered are connected with, or are relevant or material to the cause at hand or the subject of inquiry no matter how false or malicious such statements may in fact be. This privilege extends to the taking of a deposition or to conversations between opposing counsel in a pending civil action in which the attorney represents one of the parties involved. Taylor v. Alropa Corp., 138 Fla. 137, 189 So. 230 (1939); Ange v. State, 98 Fla. 538, 123 So. 916 (1929); Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907). See Romero v. Prince, 85 N.M. 474, 513 P.2d 717 (Ct.App.1973); Prosser on Torts 777-78 (4th ed. 1971); 1 Harper and James, The Law of Torts 427 (1956); Restatement (Second) of Torts § 586 (1965).

If the defamatory statements published by lawyers in the due course of a judicial procedure are not relevant or pertinent to the subject of inquiry, such statements are conditionally or qualifiedly privileged — that is, prima facie privileged. The law does not presume that such statements are made with malice, and in order for the plaintiff to recover he must establish that the statements were uttered with express malice. Malice may be inferred from the language of the publication itself or may be proven by extrinsic circumstances, but malice can not be inferred from the mere fact that the statements are untrue or that the statements contain strong words, or that the expressions used are angry and intemperate. Taylor v. Alropa Corp., 138 Fla. 137, 189 So. 230 (Fla.1939); Ange v. State, 98 Fla. 538, 123 So. 916 (1929); Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907).

The basis for such absolute or qualified privileges for lawyers is to permit a free adversarial atmosphere to flourish, which atmosphere is so essential to our system of justice. In fulfilling their obligations to their client and to the court, it is essential that lawyers, subject only to control by the trial court and the bar, should be free to act on their own best judgment in prosecuting or defending a lawsuit without fear of later having to defend a civil action for defamation for something said or written during the litigation. A contrary rule might very well deter counsel from saying or writing anything controversial for fear of antagonizing someone involved in the case and thus courting a lawsuit, a result which would seriously hamper the cause of justice. As such, the law has long looked with disfavor on such slander actions against lawyers uttered in the due course of judicial procedure except in the most extreme cases where the defamatory statement was totally irrelevant to the lawsuit and was uttered with deliberate and premeditated malice. 1 Harper and James, The Law of Torts, 427 (1956).

In the instant case, the plaintiff Sussman’s statement made during the deposition herein, although intemperate and unprofessional, is absolutely privileged in an action for slander. The statement was uttered in a deposition taken in a pending civil action in which Sussman represented one of the parties involved. The statement was material and relevant to the lawsuit because it concerned whether Sussman’s client had produced documents subject to discovery in the case. Damian insisted that Sussman’s client had not so produced the discoverable documents which Sussman denied with a defamatory accusation. As such, the statement is absolutely privileged in an action for slander.

As to Damian’s statement made during. his conversation with Sussman, it is clear that such statement is not absolutely privileged. Although it was uttered during an otherwise privileged conversation with opposing counsel in a pending lawsuit, the defamatory statement was in no sense relevant or material to the cause at hand. As such, it cannot come within the umbrella of an absolute privilege.

The statement, however, is qualifiedly privileged unless overcome by evidence of express malice, which evidence is completely lacking in this case. The extrinsic circumstances surrounding the utterance of the statement clearly show that it was made in a heated conversation between opposing counsel in a bitterly contested lawsuit in which both counsel were equally to blame for intemperate statements and conduct. Sussman had previously accused Damian of being a “damned liar”, the lawyers had just left a court hearing where this matter was discussed, and tempers had not yet cooled in the aftermath of the hearing. In short, Damian’s statement was as much prompted by Sussman’s own inexcusable conduct as by anything else and must be viewed as a deplorable emotional outburst, not a statement uttered with deliberate and premeditated malice.

True, the statement contained strong defamatory words, used expressions which were both angry and intemperate, and asserted presumed untruths. Such a statement nonetheless is insufficient proof of express malice under the law of this state. Accordingly, Damian had a qualified privilege to utter the statement made, which privilege as a matter of law was not overcome by proof of express malice.

Nothing said in this opinion should in any way be interpreted as condoning the lawyers’ respective statements in this case. Such statements were inexcusable, intemperate and unprofessional. We only hold that such statements cannot form the basis for a slander action.

The trial court properly entered a summary judgment against both slander claims made in this case. The judgment appealed from is affirmed in all respects.

Affirmed.


author: NATHAN, Judge.

text:
    David BRUNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1877.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.

      Before PEARSON, BARKDULL and NATHAN, JJ.
   NATHAN, Judge.

The trial court erred in imposing a sentence of imprisonment upon the defendant pursuant to an order of revocation of probation where the defendant was a juvenile and a first felony offender at the time of the sentencing, and the court refused to order a presentence investigation in violation of Fla.R.Crim.P. 3.710. Andrews v. State, 309 So.2d 576 (Fla. 1st DCA 1975).

Reversed and remanded for resentencing.


author: BURNSTEIN, MIETTE K., Associate Judge.

text:
    S. A. HEALY COMPANY, an Ohio Corporation, Appellant, v. TOWN OF HIGHLAND BEACH, Florida, et al., Appellees.
    No. 76-1631.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1978.
    Rehearing Denied March 23, 1978.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Miami, for appellant.
    Thomas Becker of Tylander, deClaire, Becker & VanKleech, Boca Raton, for ap-pellees.
   BURNSTEIN, MIETTE K., Associate Judge.

This is an appeal from a Judgment upholding the single family zoning imposed on Appellant’s property by the Town of Highland Beach, hereinafter referred to as Town.

Appellant’s property is located within a subdivision called Byrd Beach, a luxury single family area of approximately twenty acres. The town is 2.75 miles long and situated between the ocean, the intracoastal waterway, Delray Beach to the north and Boca Raton to the south. Much of the town is committed to resort and multiple use and the Byrd Beach area has multiple zoning adjacent on the north and south.

Appellant poses several propositions about the zoning field upon which we feel comment is appropriate:

1. Appellant pursues the philosophy that the town has already been irretrievably committed to total multi-family use. The town and the trial court contend that the headlong plunge toward wall-to-wall concrete should and can be contained. We agree. Unbridled growth is not a justification for its own continuance.

The Florida courts have consistently upheld the police power of a municipality to adopt zoning regulations which preserve the residential character of a neighborhood, City of Miami v. Zorovich, 195 So.2d 31 (Fla. 3rd D.C.A.1967); City of Miami Beach v. Wiesen, 86 So.2d 442 (Fla.1956). Protecting single family developments is a legitimate objective of zoning, County of Brevard v. Woodham, 223 So.2d 344 (Fla. 4th D.C.A.1969).

2. Appellant contends that the highest and best use for the property is multi-family and in support thereof asserts that the value of such classification is $1,619,000 as compared to $845,000 under single family.

It is not necessary to the constitutional validity of a zoning ordinance that it permit the highest and best use of a particular property. County of Brevard v. Woodham, supra, Mayflower Property, Inc. v. Watson, 233 So.2d 390 (Fla.1970), Cooper City v. Burgess, 340 So.2d 929 (Fla. 4th D.C.A.1977). A zoning ordinance is only confiscatory if it deprives an owner of the beneficial use of his property by precluding all uses to which the property might be put. Forde v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642 (1941), Moviematic Industries Corp. v. Dade County, 349 So.2d 667 (Fla. 3rd D.C.A.1977). It is not invalid merely because it prevents use which is economically most advantageous. City of Miami v. Zorovich, supra, Metropolitan Dade County v. Greenlee, 224 So.2d 781 (Fla. 3rd D.C.A. 1969).

3. Appellant argues there is no rational basis for continuance of single family zoning based on the present overburdened road, sewer and water facilities, since they would eventually have to be upgraded at some unspecified future date to meet its present committed construction pressure.

The broad use of the police power to restrict the use of land is authorized:

“The police power is not confined to elimination of filth, stench and unhealthy places. It is ample to lay out zones where family values, youth values and the blessings of quiet seclusion and clean air make the area a sanctuary for people.”

The limits of police power regulations have been recognized in numerous decisions by Florida Courts:

“In order to render a zoning ordinance invalid, it must affirmatively appear that the restriction is clearly arbitrary and unreasonable and without substantial relation to the public safety, health, morals or general welfare.”
Blitch v. City of Ocala, 142 Fla. 612, 195 So. 406, 410 (1940). See also Burritt v. Harris, 172 So.2d 820 (Fla.1965); City of Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428 (Fla.1954).

4. Finally, Appellant implies that a burden is placed upon the town to demonstrate real, material and substantial public need, and that the town has no inherent right to restrict the use of land through zoning.

This misconception should have been laid to rest by City of St. Petersburg v. Aikin, 217 So.2d 315 (Fla.1968).

Zoning is the exclusive function of the appropriate zoning authorities and not the Courts. City of Coral Gables v. Sakolsky, 215 So.2d 329 (Fla. 3rd D.C.A.1968), City of Miami Beach v. Hogan, 63 So.2d 493 (Fla.1953), City of Miami Beach v. Weiss, 217 So.2d 836 (Fla.1969).

The Courts are not empowered to act as super zoning boards substituting their judgment for that of the legislative and administrative bodies exercising legitimate objectives. Construction Industry Association of Sonoma County v. City of Petaluma, 522 F.2d 897 (9th Cir. 1975) cert. denied 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 342 (1976).

One who assails zoning legislation has an extraordinary burden of proving that the municipal enactment is invalid. City of Miami Beach v. Wiesen, supra. Appellant has failed to meet his extraordinary burden that single family zoning is not fairly debatable.

Our State Legislature, in recognition of the need to strengthen the role of local government in the establishment and implementation of the comprehensive planning process adopted the Local Governmental Comprehensive Planning Act of 1975.

In 1971 and in 1974 the town adopted Comprehensive Plans which evidenced an intention to restrict to single family characterization the certain areas among which is the Appellant’s property. Both plans recognized the pressure of commercial development on the low density areas, but emphasized as a municipal policy the need to preserve and enhance its residential character.

We recognize the astounding growth of the state and the desire to perpetuate the beauty, tranquility and other environmental virtues which have made the southeast coast of Florida an internationally famous resort, and although not determinative to our decision, we view as significant toward ensuring these ends the town’s adoption of a comprehensive zoning plan.for the entire municipality.

DOWNEY and DAUKSCH, JJ„ concur.

      . Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974). Cf. Davis v. Sails, 318 So.2d 214 (Fla. 1st D.C.A.1975) at page 216: “Typically zoning controversies revolve around a conflict between individual rights of ownership, traditionally deemed to be paramount in democratic societies, versus public interests in the property of an individual traditionally paramount in totalitarian societies.”

      . Chapter 75-257, Florida Statutes 1975.


author: PER CURIAM. PER CURIAM.

text:
    Jerome DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 76-2153.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1978.
    On Rehearing March 14, 1978.
    Arthur J. Kutsche of Studstill & Kutsche, Titusville, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Richard P. Zaretsky and Glenn H. Mitchell, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED upon authority of Hornblower v. State, 351 So.2d 716 (Fla.1977).

DOWNEY and DAUKSCH, JJ., and GREEN, OLIVER L., Associate Judge, concur.

ON REHEARING

PER CURIAM.

On Petition for Rehearing appellant correctly points out that we affirmed this case per curiam upon authority of Hornblower v. State, 351 So.2d 716 (Fla.1977), when it is quite obvious we intended to reverse the judgment appealed from.

Accordingly, our opinion in this case, dated January 24, 1978, is vacated and the order of probation appealed from is reversed upon authority of Hornblower v. State, supra. The cause is remanded to the trial court with directions to allow withdrawal of appellant’s plea of nolo conten-dere and for the trial court to enter an order granting appellant’s Motion to Suppress and for such further proceedings as are appropriate.

DOWNEY and DAUKSCH, JJ., and GREEN, OLIVER L., Associate Judge, concur.


text:
    L. B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 77-243.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied Feb. 27, 1978.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz and Ronald A. Dion, Asst. Attys. Gen., for appellee.

      Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

The appellant, a juvenile, appeals an adjudication of delinquency on a charge of battery. The questions presented on the appeal challenge (1) the sufficiency of the evidence to sustain a battery and (2) the legality of the detention by a security guard pursuant to Section 901.34, Florida Statutes (1975) .

Our review of the record in the light of appellant’s contentions shows that no error appears. As to the sufficiency of the evidence, it is clear that the force used in a criminal battery need not be sufficient to injure. See Section 784.03, Florida Statutes (1975); and Restatement, Second, Torts §§ 18 & 19. As to the claimed illegal detention, the facts support the trial judge’s conclusion that the security guard, acting under the authority of the cited section, had probable cause to detain the juvenile because there were reasonable grounds for the store employee to believe that the appellant was engaged in activity whereby goods held for sale by the merchant were being unlawfully taken. Cf. State v. Outten, 206 So.2d 392 (Fla.1968); and Sheff v. State, 301 So.2d 13 (Fla. 1st DCA 1974).

Affirmed.

      . “(1) A peace officer, or a merchant, or a merchant’s employee who has probable cause for believing that goods held for sale by the merchant have been unlawfully taken by a person and that he can recover them by taking the person into custody, may, for the purpose of attempting to effect such recovery, take the person into custody and detain him in a reasonable manner for a reasonable length of time. Such taking into custody and detention by a peace officer, merchant, or merchant’s employee shall not render such police officer, merchant, or merchant’s employee criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.
      “(2) Any peace officer may arrest either on or off the premises and without warrant any person he has probable cause for believing has committed larceny in retail or wholesale establishments.”
      if; if! 5k * ¡f¡


author: HENDRY, Judge.

text:
    Sanford K. BRONSTEIN, Appellant, v. The STATE of Florida, Appellee.
    Nos. 74-1738, 76-176.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Rehearing Denied March 8, 1978.

      Norman Francis Haft, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   HENDRY, Judge.

An information was filed against appellant/defendant Sanford K. Bronstein charging him in counts one through sixty-three with the crimes of grand larceny, forgery and uttering a forged instrument, in violation of Sections 811.021, 831.01 and 831.02, Florida Statutes (1973). In addition, appellant was charged in count sixty-four with conspiring to commit grand larceny, in violation of Section 833.04, Florida Statutes (1973).

In substance, the above counts charged that appellant, the former President of Cedars of Lebanon Hospital Corporation, wrongfully caused the hospital to issue twenty-one checks to various payees which were then fraudulently endorsed and cashed with the proceeds appropriated by appellant. At the conclusion of a jury trial, appellant was convicted on all counts and sentenced to twenty-five years imprisonment to be followed by ten years probation. From his sentence and conviction, appellant has taken this appeal.

Appellant raises six points on appeal. In point I, appellant contends that he was denied due process of law and a fair trial by virtue of the fact that the trial court denied his motion for relief from misjoinder; in points II, IV and V, appellant basically argues that by virtue of adverse pre-trial publicity, inflammatory and prejudicial prosecutorial misconduct and certain rulings of the trial court, due process was violated and a fair trial never received; in point III, appellant contends that the court’s denial of his motion for judgment of acquittal as to count sixty-four of the information (conspiracy) resulted in substantial prejudice to his case; and finally, in point VI, appellant contends that the sentence imposed by the court is illegal and void.

After carefully reviewing the record and briefs, we must reject all points.

With regard to appellant’s contentions concerning the alleged adverse publicity, prejudicial comment, etc. and denial of motion for misjoinder, we note that appellant’s co-defendants at trial, Messrs. Tifford and Abbott, have previously raised those same points in their appeals. For the reasons stated in those opinions, we find no abuse of discretion in the trial court’s denial of appellant’s motion for misjoinder, nor do we agree with appellant’s contention that he was denied a fair trial by virtue of adverse publicity and/or prejudicial comment from either the prosecution or the bench. See Tifford v. State, 334 So.2d 91 (Fla. 3d DCA 1976), cert. den. 344 So.2d 327 and Abbott v. State, 334 So.2d 642 (Fla. 3d DCA 1976), cert. den. 345 So.2d 420.

In addition, the record reveals competent substantial evidence to support appellant’s conviction of conspiracy, in violation of Section 833.04, Florida Statute (1973). See Crum v. State, 172 So.2d 24 (Fla. 3d DCA 1965).

Finally, appellant’s contention that his sentence was illegal and void is without merit. First, the crimes of forgery and uttering a forged instrument are separate and distinct crimes and can lead to separate convictions and separate sentences, even though committed with regard to the same instrument. Norwood v. Mayo, 74 So.2d 370 (Fla.1954). Second, probation to follow jail sentences in separate convictions is valid. See Sands v. State, 313 So.2d 116 (Fla. 3d DCA, 1975). Sub judice, appellant was sentenced upon his conviction of multi-pie counts of forgery, uttering a forged instrument and grand larceny. The sentence amounted to jail time on counts one through fifty-four and probation on counts fifty-five through sixty-four.

Accordingly, appellant’s sentence and conviction are hereby affirmed.

Affirmed.


text:
    STANDARD GUARANTY INSURANCE COMPANY, Appellant, v. Douglas Wayne GEETING and V. E. Anderson Mfg. Co., and Liberty Mutual Insurance Co., Appellees.
    No. 76-2050.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1978.
    W. M. Carson and Ellen M. Condon of Carson & Guemmer, Tampa, for appellant.
    Daniel A. Carlton of Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for appellees.
   PER CURIAM.

This appeal is brought from an order awarding costs in favor of appellees as an adjunct to a judgment in favor of appellees and against appellant’s insured. The main judgment herein has been recently reversed by a decision of this court and the cause remanded for a new trial. As is conceded by the appellees in this appeal, the cost judgment cannot stand when the judgment upon which it is predicated has been reversed. Therefore, the cost judgment is hereby reversed and the cause remanded for further consideration by the trial court.

HOBSON, A. C. J., and OTT and DAN-AHY, JJ., concur.

      . Clooney v. Geeting (Saumell v. Geeting), 352 So.2d 1216, Second District Court of Appeal, opinion filed November 23, 1977. That decision also reversed other judgments, not relevant here, arising out of the same accident.


text:
    Joseph DAMIANO, Trustee, Appellant, v. Nathan WEINSTEIN and Stanley Davidson, Appellees.
    No. 77-1021.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1978.
    Rehearing Denied March 22, 1978.

      Law Offices of Marvin M. Green and Howard A. Rose, Miami Beach, for appellant.
    Russo, Van Doren & Allen, Coral Gables, I. R. Mayers, Miami, for appellees.
    Before HAVERFIELD, C. J., and BARK-DULL and NATHAN, JJ.
   PER CURIAM.

Plaintiff appeals a final judgment in this action for breach of a real estate contract.

On June 15, 1974 Joseph Damiano, as seller, and defendant Stanley S. Davidson, as buyer, entered into a contract for the purchase of a certain parcel of realty. Davidson deposited the sum of $5,000 with the broker and Damiano delivered an abstract of title to Davidson’s attorney who after a title search notified Damiano’s attorney that in 1944 a tax foreclosure proceeding was instituted against Marie Louise Dana, a widow, the sole heir at law of Josephine Power, the fee simple title holder who was allegedly dead at the time. This proceeding resulted in a master’s deed to the subject realty being issued to J. M. Goodwin, a predecessor in title to Damiano, plaintiff-seller. Davidson contended that the master’s deed was void ab initio for the fee owner, Josephine Power, was not named as a party defendant in the foreclosure action and further there was no certificate of death produced to prove that she was, in fact, dead at the time; there was only the bare allegation to that effect in the foreclosure complaint and, thus, there was a defect in title. Damiano contended that there was no defect; however, he did institute a quiet title suit against Josephine Power, Marie Louise Dana and each of their spouses, dev-isees, legatees, etc. A guardian ad litem and attorney ad litem was appointed for Dana. This suit resulted in a judgment for Damiano on November 11, 1974. Davidson continued to take the position that the title was not marketable and the quiet title action was defective because no guardian ad litem was appointed for the heirs of Josephine Power in the 1944 foreclosure suit and for Josephine Power in the quiet title suit. Davidson refused to close and Damiano instituted the present action. The cause proceeded to a non-jury trial and the parties stipulated that the issues were whether or not Damiano made tender of good and marketable title and whether the quiet title suit did, in fact, cure any defect in the title within the time limit for sale. Both Dami-ano and Davidson presented expert testimony supporting their respective positions as to the marketability and insurability of the title. At the conclusion of trial, the judge found that the title still had defects and was not marketable; and entered judgment for Davidson and ordered return of the $5,000. Damiano appeals therefrom.

The issue of the marketability was for the trial judge, as the trier of the facts, to resolve. His determination that the title was not marketable was based upon the expert witness testimony presented on behalf of Davidson. There being competent substantial evidence in support thereof, we will not disturb this determination on appeal. See 2 Fla.Jur. Appeals § 340, et seq. (1963). Additionally, we note that the master’s deed appears to be void ab initio in that Josephine Power was not named as a defendant in the tax foreclosure proceeding and, therefore, this defect could not be cured under the Marketable Record Title Act. Section 712, Florida Statutes (1973). See Wernle v. Bellemead Development Corporation, 308 So.2d 97 (Fla.1975).

Affirmed.


author: SMITH, Acting Chief Judge.

text:
    AMERICAN MOTORISTS INS. CO., Appellant, v. Howard Seth WEINGARTEN, a minor by his next friend and natural father, Charles Weingarten, and Charles Weingarten, Individually, Appellees.
    No. GG-7.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1978.
    Rehearing Denied March 23, 1978.
    Cliff B. Gosney, Jr., of Gosney, Cameron & Parsons, Daytona Beach, for appellant.
    Robyn Greene of Greene & Cooper, Miami, Arno Kutner of Preddy, Kutner & Hardy, Miami, and Dennis A. Koltun, Coral Gables, for appellees.
   SMITH, Acting Chief Judge.

The insurer appeals from a summary judgment for the insured, finding that (a) underinsured motorist insurance to the extent of the bodily injury liability coverage was provided the insured who was not offered and did not reject coverage to that extent, as provided in Section 627.727(1), Florida Statutes (1975); and (b) the insured was entitled to stack the amounts of additional uninsured motorist coverage thus provided by the policy, which insured against bodily injury liability in respect to four vehicles. The insured testified without contradiction that he was not offered uninsured motorist coverage equal to the bodily injury liability coverage afforded, and therefore that he had not rejected such coverage. The insured did not sign a written rejection of additional uninsured motorist coverage, and the only countervailing evidence was testimony by the agent, who testified only that his general practice was to offer insureds uninsured motorist coverage in accordance with Section 627.727(1).

We agree with the trial court that there was no genuine issue as to any material fact; that an informed rejection of additional uninsured motorist coverage cannot, without extrinsic evidence, be implied from the insured’s signature on an application for uninsured motorist coverage to lower limits; that the insurer otherwise offered no competent evidence that the insured rejected the additional coverage required by Section 627.727(1); and that the insured is entitled to judgment as a matter of law. Aetna Cas. & Surety Co. v. Green, 327 So.2d 65 (Fla. 1st DCA 1976), cert. denied, 336 So.2d 1179 (Fla.1976); Government Employees Ins. Co. v. Farmer, 330 So.2d 236 (Fla. 1st DCA 1976), cert. denied, 342 So.2d 1101 (Fla.1977); Hunt v. State Farm Mut. Ins. Co., 349 So.2d 642 (Fla. 1st DCA 1977).

Appellees’ petition for fees on account of appellate legal services is granted, the amount to be determined and awarded in the trial court.

AFFIRMED.

ERVIN and BOOTH, JJ., concur.


text:
    Donald Phillip SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. HH-28.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1978.
    Rehearing Denied March 27, 1978.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This cause is before the Court on appeal from the judgment of the Circuit Court, Second Judicial Circuit, entered, on a jury verdict finding Defendant guilty of involuntary sexual battery and burglary of a dwelling and sentencing him as a multiple felony offender to thirty (30) years imprisonment for involuntary sexual battery, and life imprisonment for burglary.

The public defender has filed a brief reviewing the evidence in this case and any possible objections by Defendant to the proceedings below, with the conclusion that no error occurred in the proceedings. On motion of the public defender, this Court has allowed Defendant additional time within which to file any brief in his own behalf he may , deem advisable. No such brief has been filed. We have, nevertheless, reviewed the record and find no error.

Accordingly, the judgment is AFFIRMED.

BOYER, Acting C. J., and MILLS and BOOTH, JJ., concur.


author: DOWNEY, Judge.

text:
    STATE ex rel. AMERICAN HOME INSURANCE COMPANY, Relator, v. Honorable Russell E. SEAY, Jr., Judge of the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, Respondent.
    No. 77-1755.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Rehearing Denied March 23, 1978.

      R. Benjamin Reid and Carol A. Fenello of Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, P. A., Miami, for relator.
    Ronald FitzGerald of Fleming, O’Bryan & Fleming, Fort Lauderdale, for respondent, Thomas Garchar.
    Jackson L. Peters of Knight, Peters, Pickle, Niemoeller & Flynn, Miami, and Richard H. W. Maloy of Richard H. W. Maloy & Associates, Coral Gables, for respondent, Seay, and the City of Tamarac.
   DOWNEY, Judge.

Thomas Garchar recovered a judgment for $3,500,000.00 against the City of Tama-rac arising out of a suit for personal injuries. The City was insured by American Home Insurance Company, a named defendant in the trial court.

It appears that American Home moved the trial court to enter judgment against it in an amount not exceeding the policy limits. Thereafter, the City of Tamarac filed a notice of appeal to review the final judgment entered against it. Several months later the City of Tamarac sought leave in the trial court to file a cross claim against its insurer American Home alleging breach of contract and bad faith in failing to settle Garchar’s claim against the City. After the trial court granted leave to file such a cross claim and denied a motion to dismiss the cross claim American Home sought a Writ of Prohibition in this court. We issued a rule nisi and when no response was received we issued the writ, prohibiting the trial court from proceeding with the cross claim pending our disposition of the appeal from the final judgment against the City.

The City of Tamarac filed a petition for rehearing asking this court to reconsider issuance of the Writ of Prohibition because the City never received a copy of the rule nisi or the writ and thus never responded to the Relator’s Suggestion. The trial judge, as respondent in the Petition for Writ of Prohibition, has also petitioned for rehearing on the ground that he was under the impression that the City was going to handle the response to the Suggestion in Prohibition.

We granted the petition for rehearing and requested all parties in the trial court to respond to the petitioner’s suggestion for Writ of Prohibition. We have now received their very helpful advice and conclude that the Writ of Prohibition should remain in effect.

The main thrust of the arguments presented has to do with the jurisdiction of the trial court. The original plaintiff, Gar-char, and the City contend that the trial court has jurisdiction to proceed with the cross claim because the issues therein involved are not at all the same as the issues involved in the plenary appeal from the final judgment. They point to the fact that resolution of the cross claim could in no way affect this court’s jurisdiction and resolution of the appeal from the final judgment. In the alternative Garchar and the City suggest that if we find a jurisdictional problem then we should follow the procedure provided in State ex rel. Unigard Insurance Company v. Durrance, 276 So.2d 112 (Fla. 2d DCA 1973), and Williams v. Banning, 259 So.2d 725 (Fla. 2d DCA 1972), and relinquish jurisdiction to the trial court, await its determination of the cross claim, and then consider any appeal from that determination together with the appeal from the final judgment.

On the other hand American Home contends the trial court does not have jurisdiction in view of the pending appeal from the final judgment. In addition American Home also argues that we should not adopt the procedure outlined in Banning, supra and Durrance, supra, because they are distinguishable from the factual situation presented in the case at bar.

We believe the Writ of Prohibition should be confirmed because the trial court lacks jurisdiction to proceed in this cause once there is an appeal from the final judgment. Most of the authorities concerned with the jurisdiction of a trial court after an appeal is perfected involve interlocutory appeals. There is of course good reason why a case should not be stymied in the trial court, absent supersedeas, upon an interlocutory appeal from a narrow interlocutory order. However, when a case has merged into a final judgment and an appeal has been perfected therefrom the cases seem to hold that jurisdiction in the trial court terminates, State ex rel. Faircloth v. District Court of Appeal, Third District, 187 So.2d 890 (Fla.1966), and State v. Florida State Turnpike Authority, 134 So.2d 12 (Fla.1961), except as to enforcement of the judgment, Town of Palm Beach v. State ex rel. Steinhardt, 321 So.2d 567 (Fla. 4th DCA 1975), and that too terminates if the judgment is superseded.

As the court said in General Capital Corporation v. Tel Service Co., Inc., 212 So.2d 369, 382 (Fla. 2d DCA 1968), modified 227 So.2d 667 (Fla.1969):

“The rule is firmly established in this State that the trial Court loses jurisdiction of a cause after a judgment or final decree has been entered and the time for filing petition for rehearing or motion for new trial has expired or same has been denied. When a notice of appeal has been timely filed jurisdiction of the cause then vests absolutely in the appellate Court until such appeal has been finally disposed of by affirmance, reversal, or dismissal; subject only, of course, to a mere temporary relinquishment of jurisdiction for some specified, exceptional purpose, such as here.” [Cases omitted.]

Having concluded that the trial court is without jurisdiction, to proceed with the cross claim while the appeal from the final judgment is pending, we also decline to follow the procedure suggested by the Second District Court of Appeal in Dur-rance, supra, for several reasons. Initially, we express grave doubt as to the propriety of a cross claim by an insured against an insurer for bad faith while the excess judgment is being reviewed on appeal. In the case at bar the judgment which is the basis of the injury claimed by the City in its cross claim is still undergoing appellate review and so any effort toward resolution of the cross claim could well become an exercise in futility, a luxury which our judicial system with its current docket conditions cannot tolerate in this day and time. Until such time as the Garchar judgment becomes final, vis-a-vis appellate review, the City has not been injured because its cause of action has not ripened and the City should not be allowed to litigate its bad faith claim. Should the judgment be reversed and a new trial granted, resulting in judgment within the policy limits, the City would have no cause of action for bad faith. A number of cases have held that the statute of limitations does not begin to run on a bad faith claim of the sort contained in the cross claim under consideration until the judgment against the insured has been affirmed by the final appellate court of the jurisdiction involved (assuming of course there has been an appeal perfected). The City would distinguish those cases on the basis that they involve the statute of limitations and when it commences running. But that is precisely the point. The statute of limitations doesn’t start to run until the cause of action accrues to the party. We think those cases are very much in point.

The second reason for not relinquishing jurisdiction is that during the course of the prosecution of the cross claim either via discovery or during the trial thereof the parties will parade through American Home’s files and divulge all of the views, opinions and advice of American Home’s officers, agents and counsel regarding Garc-har’s claim. The matters and things which are learned from this discovery could have a prejudicial effect upon American Home in the subsequent trial of this case or in negotiations toward settlement of the case in the event the Garchar’s judgment which is pending on appeal is reversed for a new trial.

Accordingly, the Writ of Prohibition heretofore issued herein is confirmed in all respects.

CROSS and DAUKSCH, JJ., concur.

      . That motion has not been ruled on by the trial court and no final judgment has yet been entered against American Home Insurance Company.

      . Since the matter has not been presented for our determination we do not determine here that a cross claim is authorized in the present posture of this case.

      . In Groner v. Underwriters Insurance Company, 179 So.2d 123 (Fla. 3rd DCA 1965) a cross claim was decided after a summary final judgment was appealed. In reversing the summary judgment the appellate Court pointed out that the liability on the cross claim has been prematurely resolved.

      . American Mut. Liability Ins. Co. of Boston, Mass. v. Cooper, 61 F.2d 446 (5th Cir. 1932), reh. denied 12-16-32; Hartford Accident & Indemnity Co. v. Cosby, 173 So.2d 585 (Ala.1965); Linkenhoger v. American Fidelity & Casualty Co., Inc., 152 Tex. 534, 260 S.W.2d 884 (1933).