author: DOWNEY, Judge. CROSS, Judge, DOWNEY, Chief Judge. CROSS, Judge,

text:
    STATE of Florida, Appellant, v. Floyd N. WILLIAMS, Appellee.
    No. 77-804.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Rehearing Denied Oct. 11, 1978.

      Michael J. Satz, State’s Atty. and Patty Englander and William W. Herring, Asst. State’s Attys., Fort Lauderdale, for appellant.
    William B. Seidel, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

The state seeks review of an interlocutory order dismissing an information charging appellee with sexual battery.

It appears the trial court granted appel-lee’s motion to dismiss the information because the State Attorney who signed the information failed to “certify” that he had received testimony under oath from the material witnesses for the offense. The information was signed by a designated Assistant State Attorney and contained the following oath taken before a deputy clerk of the Circuit Court of Broward County:

“. . who being first duly sworn, says that the allegations as set forth in the foregoing Information are based upon facts that have been sworn to as true by the material witness or witnesses and which, if true, would constitute the offense therein charged; and that he has instituted this prosecution in good faith.”

Fla.R.Crim.P. 3.140(g), provides:

“(g) Signature, Oath, and Certification; Information. An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his good faith in instituting the prosecution and certifying that he has received testimony under oath from the material witness or witnesses for the offense. An information charging the commission of a misdemeanor shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his good faith in instituting the prosecution. No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.”

The state contends that the oath set forth on the information in this case meets the requirements of the rule because the State Attorney has sworn that the information is based upon facts that have been sworn to as true by the material witnesses. Appellee suggests that this is not sufficient. It is appellee’s view that the State Attorney verifying the information must “certify” that he received the testimony under oath from the material witnesses. In support of that position appellee suggests that it was not proper under the rule for one Assistant State Attorney to interview material witnesses and take their sworn statement and then turn the matter over to another Assistant State Attorney to prepare the information and verify it. It appears the appel-lee would interpret the rule to require the Attorney verifying the information to personally take the testimony of the witnesses and then certify that he has done so.

When the respective arguments of the parties are considered in the light of the reasons for including the pertinent language under consideration in the current rule, it appears the state’s position is sound. The predecessor of the current rule required that an information charging a felony should be signed by a State Attorney under oath, stating only his good faith in instituting the prosecution. There was no requirement that he certify that he had received the testimony under oath from the material witnesses. That requirement was added effective March 31, 1975, “to establish good faith in the institution of the prosecution and provide more accountability” according to the Author’s Comment following Rule 3.140. 33 F.S.A. p. 121. In other words, before any felony prosecution is instituted by filing an information the prosecutor must certify that the facts upon which the prosecution is based have been sworn to by the material witnesses.

Adverting once again to the terminology used in the affidavit of the Assistant State Attorney verifying the information in question, we find that it states, in pertinent part, that after being sworn the Assistant State Attorney said the allegations of the information are based on facts sworn to by the material witnesses. We find the purpose of the rule is met by the affidavit in question.

We do not feel the rule intended that in every instance the Assistant State Attorney who interviewed the witnesses must prepare and verify the information. That is totally unrealistic in this day and time. The problem is not unlike the one considered by the Supreme Court of Florida in State v. Miller, 313 So.2d 656 (Fla.1975), when it stated:

“The administrative burdens upon state attorneys constantly enlarge, and correspondingly necessitate greater reliance upon assistants and the delegation of authority to them. Innovations such as tel-etyped informations have been authorized in order to expedite the functions of the state attorneys in criminal intake, thus expediting the prompt disposition of the business of the courts. To rule that assistant state attorneys can sign felony informations will greatly facilitate the expeditious handling and prompt disposition of criminal cases in Florida.” Id. at 658.

The skill and responsibility necessary in preparing and filing an information are quite different than the taking of sworn statements from witnesses. In the nature of things a less experienced assistant can be assigned to the latter duty while the older more experienced assistants will more likely attend to the former.

Finally, there is nothing magical about the word “certify”. It means “to testify in writing; to make known or establish as a fact.” Words and Phrases defines it: “to attest authoritatively”. When the Assistant State Attorney swears that the allegations set forth in the information are based upon facts that have been sworn to as true by the material witnesses, that is tantamount to his “certifying that he has received testimony under oath from the material witness or witnesses for the offense.”

Accordingly, the order appealed from is reversed and the cause is remanded with directions to reinstate the information and for further proceedings.

REVERSED AND REMANDED, with directions.

WEAVER, SIDNEY M., Associate Judge, concurs.

CROSS, J., dissents with opinion.

CROSS, Judge,

dissenting:

I respectfully dissent.

The majority is just dancing around out of step with the tune of the fiddler.

DOWNEY, Chief Judge.

ON PETITION FOR REHEARING

This Court having granted Petition for Rehearing in this case and having further considered the arguments of counsel and particularly the case of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), it is our opinion that the decision of this Court filed March 14, 1978, is correct and is hereby confirmed.

ANSTEAD, J., concurs.

CROSS, J., dissents with opinion.

CROSS, Judge,

dissenting:

I respectfully dissent.

I fear the majority seeks to place the administrative convenience of the office of the State’s Attorney above the constitutionally recognized right of every citizen to be free from unwarranted criminal prosecution. Rule 3.140(g), Fla.R.Crim.P., requires that each designated assistant state attorney who files an information charging the commission of a felony must declare in writing, under oath that “he has received testimony under oath from the material . witnesses for the offense.” The English language allows for no greater clarity of expression than that embodied in the foregoing provision. Yet the majority today has determined that the words as adopted by our Florida Supreme Court are not intended to convey their ordinary meaning.

Those charged with the responsibility of adopting rules of procedure in criminal matters have in their wisdom determined that when the commission of a felony is charged, a greater burden be placed on the charging officer. The obvious intent of Rule 3.140(g) is to single out one category of crimes, felonies, and to impose a greater degree of accountability on the office of the state attorney in order to provide greater protection to the citizenry. Thus, I would grant rehearing and affirm the trial court’s dismissal of the information.

      . Fla.R.Crim.P. 3.140(g) (1974), adopted In 65 (Fla.1973), effective February 1, 1973. Florida Rules of Criminal Procedure, 272 So.2d

      . Black’s Law Dictionary (4th ed. 1968), 287.

      . 6A Words and Phrases 86.


source: Caselaw Access Project

author: RYDER, Judge.

license: Public Domain

text:
    CITY OF ST. PETERSBURG, Florida, a Municipal Corporation, Harold Mullendore, as Custodian of Evidence for the Grand Jury of Pinellas County, and Harold Mullendore, as Clerk of Court in and for the Sixth Judicial Circuit, Petitioners, v. W. R. HOUGHTON, Respondent. W. R. HOUGHTON, Petitioner, v. CITY OF ST. PETERSBURG, Florida, a Municipal Corporation, Harold Mullendore, as Custodian of Evidence for the Grand Jury of Pinellas County, and Harold Mullendore, as Clerk of Court in and for the Sixth Judicial Circuit, Respondents.
    Nos. 78-574, 78-748.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 1978.
    Rehearing Denied Sept. 20, 1978.
    Michael S. Davis, Chief Asst. City Atty. and Richard Luce, Asst. City Atty., St. Pe-tersburg, Philip W. Dann, St. Petersburg, for W. R. Houghton.
    W. Gray Dunlap, County Atty., James A. Helinger, Jr., Chief Asst. County Atty., and Gerald A. Figurski, Asst. County Atty., Clearwater, for Harold Mullendore, as Clerk of Court in and for the Sixth Judicial Circuit.

      James T. Russell, State’s Atty., D. Lee Fugate and Myron J. Mensch, Asst. State Attys., Clearwater, for Harold Mullendore, as Custodian of Evidence for the Grand Jury of Pinellas County.
   RYDER, Judge.

W. R. Houghton, the plaintiff below, filed a civil action against the City of St. Peters-burg [City], Harold Mullendore [Mullen-dore], as Custodian of Evidence for the Grand Jury of Pinellas County, and also as Clerk of Circuit Court in and for the Sixth Judicial Circuit.

The third amended complaint has three counts. Count I, an action in replevin, alleges, inter alia, that $316,380.00 were seized from the custody and control of Houghton by certain law enforcement officers subsequent to a stop of his vehicle and arrest of Houghton on the charge of conspiracy to deliver thirty pounds of hashish. Sometime after his arrest, a “no information” was filed in regards to the charge against Houghton but the Pinellas County Grand Jury recommended forfeiture of the currency seized from Houghton. In August of 1977, the county court of Pinellas County dismissed the forfeiture proceedings on the ground that the seized currency was not subject to forfeiture under the laws of the State of Florida.

Count I further alleges that defendant Mullendore, as Custodian of Evidence for the Grand Jury, presently has custody of a certificate of deposit for the currency which was deposited in a bank; that all of the defendants have refused demand for the return of the currency; and that plaintiff Houghton is entitled to possession of the currency, the source of his right to possession of the money being his exclusive possession of same prior to its allegedly unlawful removal from his possession.

Count II realleges most of Count I and seeks declaratory relief alleging that Houghton has a possessory interest in the currency superior to all defendants who assert adverse interest thereto. However, Count II does not indicate how this posses-sory interest was obtained.

Count III realleges most of the previous two counts and avers that the officers of the City and the Sheriff deprived him of his constitutional rights in illegally seizing the money and seeks damages. The record is unclear as to whether or not Mullendore is a defendant in this particular count. Also, it should be noted that there has been no determination that the money was, in fact, illegally seized.

On December 19, 1977 Houghton was deposed by defendants. Houghton refused to answer thirty-eight questions on the ground of his Fifth Amendment privilege against self-incrimination.

The City and Mullendore then filed motions to compel Houghton to answer these questions and to abate the cause for a reasonable time therefor; and, alternatively to dismiss the cause in the event Houghton did not respond within a given time period.

Upon hearing on the aforesaid motions, the court entered a four-part amended order on March 27, 1978 which (1) abated Count I (replevin) for sixty days from February 21, 1978 for the plaintiff to submit himself to further discovery; (2) if plaintiff did not submit to discovery or respond satisfactorily within the sixty-day period, Count I shall stand dismissed, without prejudice; (3) defendants’ motions for sanctions were denied as to Count II (declaratory relief) and as to Count III (damages) and, further, the defendants were directed to respond thereto; and (4) denied the City’s motion to compel and abate in all other respects.

Thereafter, the City answered Counts II and III, denying liability. Mullendore filed motions to dismiss and for a more definite statement. Houghton moved for summary judgment against the City on Count II, but has not submitted to further discovery.

Houghton filed a petition for writ of cer-tiorari (Case 78-748) seeking reversal of paragraphs (1) and (2) of the aforementioned order. The City and Mullendore, in turn, filed petitions for writ of certiorari (Case 78-574) seeking reversal of paragraphs (3) and (4) of the above order. This court consolidated the .cases.

The plaintiff claims a right to invoke his Fifth Amendment privilege in the course of discovery in this case, and to refuse to answer questions on deposition. His right to do so is the subject of an A.L.R. Annotation “Dismissing Action or Striking Testimony Where Party to Civil Action Asserts Privilege Against Self-Incrimination as to Pertinent Question,” 4 A.L.R.3d 545 et seq.

Houghton urges upon this court the idea that the trial court deviated from the essential requirements of law as to permit this discovery which will cause Houghton material injury for which appeal will be inadequate, citing to us our own case of Leithauser v. Harrison, 168 So.2d 95 (Fla. 2d DCA 1964). Houghton further argues the proposition that a state may not impose substantial economic sanctions on a non-immunized individual because he elects not to waive his Fifth Amendment privilege. Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1974); U. S. ex rel. Sanney v. Montanye, 500 F.2d 411 (2d Cir. 1974), cert. denied, 419 U.S. 1027, 95 S.Ct. 506, 42 L.Ed.2d 302, and Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977).

Although the three federal cases cited above by Houghton relate to one’s right to invoke the Fifth Amendment, they are distinguishable from the matter sub judice. Lefkowitz v. Turley, supra, involves architects who were summoned to testify before a New York State Grand Jury investigating various charges of conspiracy, bribery and larceny. This summons was issued pursuant to a New York statute which required public contractors, such as these architects, to testify before a grand jury relative to existing state contracts and if they refused to do so, they would suffer cancellation of their contracts and lose the right to bid on further state jobs. The architects refused to sign waivers of immunity, invoked the Fifth Amendment and, thereafter, challenged the New York State Statute. In U. S. ex rel. Sanney v. Montanye, supra, Sanney was a suspect in a murder and was later charged with manslaughter. In Lefkowitz v. Cunningham, supra, Cunningham, a public official, was subpoenaed before a grand jury for testimony concerning the conduct of his office. This is similar to the first Lefkowitz case cited by the plaintiff herein and the Supreme Court of the United States also ruled similarly. In each of these cases, the appellants were either suspect of murder or of other criminal wrongdoing and in both Lefkowitz cases the appellants who invoked the Fifth Amendment were subpoenaed before a grand jury and appeared involuntarily.

In the case at hand, we see that Hough-ton is the plaintiff and is not involuntarily involved in litigation but, rather, initiated the suit himself.

Recently, this court has dealt with a defendant’s right to invoke the privilege against self-incrimination in a civil action. See Roberts v. Jardine, 358 So.2d 588 (Fla. 2d DCA 1978). However, here we are confronted with the question of the plaintiff’s right to invoke the Fifth Amendment privilege in a civil action.

Our attention, thus, is immediately drawn to a series of Florida cases beginning with Stockham v. Stockham, 168 So.2d 320 (Fla. 1964) wherein the Supreme Court of Florida affirmed a decision of this court holding that the wife/plaintiff who refused to respond to defendant’s request for admissions must answer, and that upon her failure to do so (on claiming protection against self-incrimination) her suit for divorce would be dismissed. The Florida Supreme Court held that neither the provisions of Section 12 of the Declaration of Rights of the Florida Constitution nor the Fifth Amendment of the Federal Constitution, for protection against self-incrimination were available to the plaintiff in said suit, and if insisted upon, would result in dismissal of that party’s suit.

Five years later, in another divorce case, Simkins v. Simkins, 219 So.2d 724 (Fla. 3d DCA 1969), plaintiff/husband refused to answer questions in a discovery deposition regarding the charge of adultery which the wife had leveled against him, invoking his constitutional privilege against self-incrimination. An interlocutory appeal was taken, but our sister court, the Third District Court of Appeal, declined to follow the Stockham case.

Thereafter, this court in Minor v. Minor, 232 So.2d 746 (Fla. 2d DCA 1970) again addressed the problem when in a pre-trial deposition of plaintiff/wife she invoked her Fifth Amendment privilege against self-incrimination in response to questions relating to defendant’s charges of her adultery. Speaking for the court in a well reasoned opinion, then Judge McNulty observed that Simkins had departed from Stockham on the basis of the Supreme Court of the United States decisions in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) and Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967). After review of both Garrity and Spevack, Judge McNulty wrote:

“Now concededly, in those cases, the parties invoking the Fifth Amendment were wrongfully penalized for their ‘taking the Fifth.’ They were forced to choose, as it is said, ‘between Scylla and Charybdis.’ But there they were involuntarily thrust into such quandary, while here, the invoking party is voluntarily the moving party affirmatively seeking equity. Appellant’s choice in this case is not, involuntarily, one between two totally disadvantageous alternatives, as were the choices in Garrity and Spevack, supra, but rather, voluntarily, one between two alternatives one of which can be employed to some advantage. Appellant can gain the affirmative relief she seeks from her choice, and the choice is freely hers; in Garrity and Spevack on the other hand couldn’t gain in any event, yet they were compelled to choose.
We conclude, then, that appellant suffers no ‘penalty’ in the sense spoken of in Spevack, and neither that case nor Garrity, supra, can operate to vitiate the holding of our Supreme Court in Stockham, supra, . . . ” Page 747.

Upon review by the Florida Supreme Court by writ of certiorari of our decision in Minor, the Florida Supreme Court affirmed Minor and disapproved Simkins. See Minor v. Minor, 240 So.2d 301 (1970).

In Mahne v. Mahne, 124 N.J.Super. 23, 304 A.2d 577 (1973), the court cited, inter alia, both the Minor and Stockham cases. Adopting the views supported by the two Florida cases, the court quoted from Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (Minn.Sup.Ct.1968) as follows:

“Research indicates that with the exception of Bishop v. Bishop, 157 Ga. 408, 121 S.E. 305, all of the cases which have dealt with the legal questions presented herein have recognized that a motion to dismiss a complaint . . . should be sustained where the plaintiff has refused to answer the questions pertinent to the issues involved and on the ground of self-incrimination. These decisions appear to have been based upon the rationale that although the privilege against self-incrimination is available to either party to a civil action the party who seeks affirmative judicial relief from the court and at the same time invokes this privilege should not be permitted to prevail and, in effect, ‘eat his cake and have it too’ . ([162 N.W.2d] at 202).” (sic).

There are other non-domestic relation eases in point. Chronologically, Independent Productions Corporation v. Loews, Inc., 22 F.R.D. 266 (S.D.N.Y.1958) may well be the earliest case involving the assertion of the Fifth Amendment privileges by a plaintiff. The case was a private treble damage anti-trust action by two corporate plaintiffs and the president of one plaintiff claimed the privilege. The court wrote:

“It would be uneven justice to permit plaintiffs to invoke the powers of this court for the purpose of seeking redress and, at the same time, to permit plaintiffs to fend off questions, the answers to which may constitute a valid defense or materially aid the defense.
“Plain justice dictates the view that regardless of plaintiffs’ intention, plaintiffs must be deemed to have waived their assumed privilege by bringing this action. Moore, Federal Rules and Official Forms, 164 (1956)
* * * * % %
“This view strikes home. Plaintiffs in this civil action have initiated the action and forced defendants into court. If plaintiffs had not brought the action, they would not have been called on to testify. Even now, plaintiffs need not testify if they discontinue the action. They have freedom and reasonable choice of action. They cannot use this assertive privilege as both a sword and shield. Defendants ought not be denied a possible defense because plaintiffs seek to invoke an alleged privilege.” Id. 276, 277.

Chief Justice Desmond and six other Justices of the New York Court of Appeals, further developed the sword and shield metaphor:

“The privilege against self-incrimination was intended to be used solely as a shield, and thus a plaintiff cannot use it as a sword to harass a defendant and to effectively thwart any attempt by defendant at a pre-trial discovery proceeding to obtain information relevant to the cause of action alleged, and possible defenses thereto. (See also Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483; Hazlett v. Bullis, 12 A.D.2d 784, 209 N.Y.S.2d 601 [2 Dept. 1961]); ” Laverne v. Incorp. Village of Laurel Hollow, 18 N.Y.2d 635, 272 N.Y. S.2d 780, 219 N.E.2d 294 (1966).

In a civil action on a fire insurance policy wherein the insurer alleged arson by the insured as an affirmative defense, a Federal District Court in Wisconsin had the same issue before it. In Kisting v. Westchester Fire Insurance Company, 290 F.Supp. 141, 149 (W.D.Wis.1968), that court also verbalized its opinion in terms of the sword and shield metaphor holding:

“Plaintiffs’ next contention is that the privilege against self-incrimination justifies Kisting’s refusal to answer the questions involved. Plaintiffs thus seek to utilize the privilege not only as a shield, but also as a sword. This they cannot do. A plaintiff in a civil action who exercises his privilege against self-incrimination to refuse to answer questions pertinent to the issues involved will have his complaint dismissed upon timely motion. See Stockham v. Stockham, 168 So.2d 320, 4 A.L.R.3d 539 (Fla.1964); Lund v. Lund, 161 So.2d 873 (Fla.App.1964); Levine v. Bornstein, 13 Misc.2d 161, 174 N.Y.S.2d 574 (S.Ct., Kings Co. 1958); aff’d, 7 A.D.2d 995, 183 N.Y.S.2d 868 (2d Dept.), aff’d, 6 N.Y.2d 892, 190 N.Y.S.2d 702, 160 N.E.2d 921 (1959); Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (1955); Ann., 4 A.L.R.3d 545. Cf. Zaczekv v. Zaczekv, 20 A.D.2d 902, 249 N.Y.S.2d 490 (2d Dept. 1964); ” Id. 149.

See also Bramble v. Kleindienst, 357 F.Supp. 1028 (D.Colo.1973), aff’d, 498 F.2d 968 (10 Cir. 1974), cert. denied, 419 U.S. 1069, 95 S.Ct. 656, 42 L.Ed.2d 665 and Penn Communications Specialties, Inc. v. Hess, 65 F.R.D. 510 (E.D.Pa.1975).

Thus, it appears that not only the Florida law, but the majority view in this land is that a plaintiff may not seek affirmative relief in a civil action and then invoke the Fifth Amendment to avoid giving discovery in matters pertinent to the litigation. Consequently, we grant certiorari, affirm the trial court’s order as to paragraphs (1) and (2) and reverse the trial court’s order as to paragraphs (3) and (4) and direct the circuit court to order Houghton to answer on discovery the pertinent and material questions as to the remaining counts of his suit and if he fails to answer them, then upon proper motion, to dismiss those counts to which those questions appertained.

AFFIRMED in part; REVERSED in part.

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

      . The Honorable W. T. Roberts, Sheriff of Pi-nellas County, is also a party to this action, but is not involved in this petition for writ of certio-rari.

      . The questions which Houghton refused to answer related to source of title, such as, how and when Houghton came into possession of the money; how much money was actually in the box; what Houghton did to earn the money, and so forth, which are pertinent and material to the issue. Other questions which Houghton refused to answer such as where had he come from, where he was enroute to, and the like, may very well not be pertinent and material to the issue of the suit, but we do not reach that question at this point and prefer to permit the trial judge to rule on that point, if and when raised, in view of our eventual decision in this case.


author: BASKIN, NATALIE, Associate Judge.

text:
    J. H. TALTON, Appellant, v. STATE of Florida, Appellee.
    No. 77-2228.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1978.
    Rehearing Denied Oct. 18, 1978.
    Chandler R. Muller of Muller & Kirkcon-nell, Winter Park, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   BASKIN, NATALIE, Associate Judge.

This is an appeal from a judgment and sentence involving two counts of knowingly committing a lewd and lascivious act in the presence of a child under the age of fourteen years. Appellant asserts his Motion for Discharge under the speedy trial rule should have been granted and that the State’s Amended Motion to Extend Speedy Trial Period should have been denied. We affirm the trial court’s rulings.

On March 8, 1977, prior to the expiration of time permitted under Speedy Trial Demand, the court orally granted the State’s Amended Motion to Extend Speedy Trial Period on the basis of exceptional circumstances. The court entered its written order nunc pro tunc on April 27, 1977. In the absence of a valid extension, speedy trial time would have expired by midnight March 11, 1977.

Addressing ourselves to the timeliness of the trial court’s order extending speedy trial time, we find that the order was entered before the speedy trial period had run. State ex rel. Smith v. Rudd, 347 So.2d 813 (Fla. 1st DCA 1977). Although Appellant contends that speedy trial time must be extended pursuant to written order of the court, duly rendered, Florida Rule of Criminal Procedure 3.191 does not require that an order be entered in any particular form. The court’s oral ruling was reported and entered in writing at a later time. We agree with the court in State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA 1978), that the preparation, execution and filing of a formal written order reciting exceptional circumstances is the preferred course. That course was followed in this case. We are satisfied that the oral ruling was timely.

The trial court’s finding that exceptional circumstances existed was a matter within its discretion. State ex rel. Mullins v. Swigert, 345 So.2d 386 (Fla. 1st DCA 1977). No abuse of discretion has been shown.

AFFIRMED.

DAUKSCH and ANSTEAD, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Rome Lee HARMON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1275.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 1978.
    Joseph Jordan of Bailey & Jordan, West Palm Beach, for appellant.
   PER CURIAM.

AFFIRMED.

DOWNEY, C. J., and LETTS, J., concur.

ANSTEAD, J., concurs specially.

ANSTEAD, Judge,

concurring specially:

I agree with the majority that the order of May 5, 1978, denying the appellant’s pro se motion for post-conviction relief should be affirmed. However, I believe that one of the issue raised in the appellant’s motion merits comment. That issue involves the competency of counsel. The trial judge noted in his order of May 5:

Paragraph 2 of defendant’s motion is simply to the effect that there were witnesses who could have been called in the defendant’s case. Defendant presented the testimony of numerous witnesses. The fact that he now thinks additional ones might have been called and he lists their names is of no consequence. Facts are not stated in support of the allegation that these witnesses would have even helped.

Subsequently, by counsel, the appellant filed a second motion alleging incompetency of trial counsel and setting out sworn, detailed statements outlining the testimony of the witnesses previously referred to in paragraph 2 of appellant’s original motion. The record shows that a different trial judge denied the second motion on the grounds that the issue had already been decided by the order of May 5, 1978, and advising the appellant that proper recourse on the issue was by appeal of the order of May 5, not by the filing of another motion for post-conviction relief. Then the appellant filed this appeal of the May 5 order.

However circuitous the route may be, I believe the appellant is entitled to an evi-dentiary hearing on his second motion for post-conviction relief. The order denying his second motion is not before us for review. But since that order itself advised the appellant that his proper remedy was by appeal of the May 5 order, I think we would be remiss in not commenting on the entitlement of the appellant to an eviden-tiary hearing on his second motion.


text:
    Henry L. PAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 78-1230.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 1978.
    As Modified Sept. 20, 1978.
   RYDER, Judge.

Appellant moved to vacate the sentence given him after a plea of guilty, alleging that his appointed counsel was ineffective and that his plea was involuntary. The trial judge denied the motion without attaching any portion of the record or file and without holding an evidentiary hearing to determine the veracity of appellant’s allegations.

If, as is the case here, a motion to vacate sentence addresses matters which can be raised in a collateral attack, and alleges facts which, if true, would entitle a prisoner to relief, then the judge reviewing the motion must attach that portion of the case file or record which conclusively shows that the prisoner is entitled to no relief, or grant an evidentiary hearing. See Fla.R. Crim.P. 3.850. Neither action was taken by the court below. The cause is, therefore, REMANDED to the trial court under a temporary relinquishment of jurisdiction with instructions (a) to attach that portion of the case file and record which refutes appellant’s allegations; or (b) to conduct an evidentiary hearing and, then, either grant or deny the relief sought by appellant.

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


author: PER CURIAM.

text:
    Daniel P. TOMPKINS, Appellant, v. Sylvia Jane TOMPKINS, Appellee.
    No. GG-243.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1978.
    Raymond J. Sweeney, Jr. and Carlton P. Maddox of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    No appearance for appellee.
   PER CURIAM.

This is an appeal from a denial of modification of child support and alimony. Appellant sought to have the duty to pay temporarily terminated during a period of incarceration. The trial court denied his request and we affirm.

In arguing his appeal, appellant contends that the refusal to terminate his obligation during his incarceration exposes him to contempt sanctions immediately upon his release. We point out that any finding of contempt would have to comport with the requirements of Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976).

AFFIRMED.

SMITH, Acting C. J., and MELVIN and BOOTH, JJ., concur.


text:
    Julius Teddy DELANIE, Appellant, v. STATE of Florida, Appellee.
    No. 78-123.
    District Court of Appeal of Florida, Second District.
    Sept. 13, 1978.
    Rehearing Denied Sept. 27, 1978.

      Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant was convicted of aggravated battery and culpable negligence. He contends that his conviction should be reversed because the State introduced no substantive evidence of his guilt. We agree and reverse.

On July 23, 1977, Lakeland Police Officers Morgan, Tallman and Boatner were dispatched to appellant’s residence. On arriving they found Barbara Hall, appellant’s girlfriend, sitting on the front porch bleeding from her left arm and from under her left eye. Ms. Hall told Officer Morgan that she had been struck by a grass sling blade swung by appellant when she raised her left arm in defense. When confronted by police at a neighbor’s house, appellant admitted struggling over the blade and produced it for the officers. Appellant was then taken into custody.

At pre-trial deposition, Ms. Hall’s description of the incident was different. On that occasion she testified that she had initiated the struggle over the blade because appellant had walked into their room with the blade and she feared that he was experiencing an epileptic seizure and she generally exonerated appellant.

Upon trial and at the urging of the prosecutor, the court called Ms. Hall as a court witness. This allowed the prosecutor to introduce evidence of the first version of the incident told by Ms. Hall to the Lake-land police for the purpose of impeaching her trial testimony, which also again exonerated appellant. Other than Ms. Hall’s initial statement, no substantive evidence was introduced indicating appellant’s guilt.

A trial judge can, in his discretion, call a person as a court witness where the witness’ expected trial testimony is inconsistent with a prior statement. McCloud v. State, 335 So.2d 257 (Fla.1976). The prior statement can then be used to diminish the credibility of the witness and otherwise impeach his testimony; but it may not be used as substantive evidence. Perry v. State, 356 So.2d 342 (Fla. 1st DCA 1978).

Nothing was introduced by the State which directly showed appellant to be guilty of the charges. This insufficiency of evidence in appellant’s first trial precludes a new trial. He should therefore be discharged. Burks v. United States, 437 U.S. -, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S.-, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

REVERSED and REMANDED with directions to discharge appellant.

GRIMES, C. J., and SCHEB, J., concur.


text:
    Hershell LEMLEY, Appellant, v. STATE of Florida, Appellee.
    No. 77-246.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1978.
    Richard L. Jorandby, Public Defender, and Marc E. Kirk, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant presents three points for our consideration on this appeal. However, after considering the briefs and record in the cause we find only one has merit. The judgment and sentence entered by the trial court adjudicated the appellant guilty of murder in the second degree and sentenced appellant to the custody of the Division of Corrections “to be imprisoned at hard labor for the rest of his natural life.” Appellant contends that the court failed to give him credit for time served and that it was improper for the trial court to direct that he be imprisoned at hard labor. The appellant is correct on both counts and, accordingly, the judgment and sentence appealed from is reversed and the cause is remanded to the trial court with directions to enter a new judgment and sentence giving appellant credit for time which he served in jail prior to sentencing and eliminating therefrom any direction that he be imprisoned at hard labor. McKnight v. State, 325 So.2d 79 (Fla. 4th DCA 1976). In all other respects the judgment and sentence are affirmed.

DOWNEY, C. J., and LETTS and MOORE, JJ., concur.


text:
    Allen M. BUSCH, Appellant, v. Arlyne R. BUSCH, Appellee.
    No. 77-379.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1978.

      James Fox Miller of Miller & Schwartz, P. A., Hollywood, for appellant.
    Jeffrey P. Wasserman and Merle Litman of Litman, Muchnick & Wasserman, Hollywood, for appellee.
   PER CURIAM.

As part of a final judgment of dissolution the wife was granted the exclusive possession of the marital home until she died or remarried or until the youngest child in her custody reached 18 years of age. The husband was ordered to make the mortgage payments on the home and the court, in an amended final judgment, designated these payments as rehabilitative alimony. We find no error in awarding the wife alimony in the form of the mortgage payments. However, we believe the designation of the award as rehabilitative is not appropriate or supported by the record. We find no other error. Accordingly, the word “rehabilitative” is hereby stricken from the amended final judgment where it applies to the mortgage payments; and the amended final judgment is affirmed as modified.

DOWNEY, C. J., ANSTEAD, J., and SIL-VERTOOTH, LYNN N., Associate Judge, concur.


author: BERANEK, Judge.

text:
    Willie James LEE, Appellant, v. STATE of Florida, Appellee.
    No. 77-705.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1978.

      Richard L. Jorandby, Public Defender, and Marc E. Kirk, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals his conviction and a 15-year sentence on a charge of first degree arson and raises two points. The first point relates to the introduction of a confession given without Miranda warnings. The second point relates to the trial court’s failure to instruct on circumstantial evidence. We reverse on both grounds.

Defendant was incarcerated in the Orange County Jail awaiting sentencing on an unrelated charge. A mattress fire occurred in the defendant’s cell. Defendant was handcuffed, removed from the cell, and placed in a holding cell on another floor in the jail.

The correctional officers in the jail facility extinguished the mattress fire which was not of a serious nature. They subsequently began an investigation. Clearly, the defendant/appellant was the focus of this investigation. Defendant was questioned but was not given any warning as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). During this questioning, defendant admitted setting the fire.

Before trial, defendant’s motion to suppress the confession was denied. The case proceeded to trial and the corrections officer was allowed to testify as to defendant’s confession. The other evidence in the ease was that the fire occurred in defendant’s cell, defendant was the sole occupant of the cell, and defendant was found with a book of matches in his hand. The trial court refused to instruct on circumstantial evidence despite defense counsel’s request.

Under the facts of this case, the trial court erroneously denied the defendant’s motion to suppress and prejudicial error occurred when the defendant’s confession was allowed in evidence in the State’s case in chief. This has been established in Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968) as adopted by the Florida Supreme Court in Young v. State, 234 So.2d 341 (Fla.1970), where a defendant in custody on another charge was questioned without Miranda warnings. In the circumstances of this case it is clear that the defendant was the focus of custodial interrogation without any warnings as to his Miranda rights and that this interrogation resulted in the incriminating statements used against him. The situation was not one of exigent circumstances nor a situation where the investigation was merely addressed to persons in the vicinity of a recently committed crime.

It was also error for the trial court not to instruct on circumstantial evidence. Absent the defendant’s confession, there was no other direct evidence. An instruction on circumstantial evidence should have been given. The case is reversed and remanded to the trial court for further proceedings consistent herewith.

REVERSED AND REMANDED.

DAUKSCH, J., and GREEN, OLIVER L., Jr., Associate Judge, concur.


author: MOORE, Judge.

text:
    The CITY OF ORLANDO et al., Plaintiffs, v. The SCHOOL BOARD OF ORANGE COUNTY, Florida, et al., Defendants.
    No. 77-1702.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1978.
    Gretchen R. H. Vose, Asst. City Atty., Orlando, for plaintiffs.
    Andrew B. Thomas and John W. Bowen of Rowland, Petruska & Bowen, Orlando, for defendants.
   MOORE, Judge.

This case is before us upon two certified questions propounded to us by the Circuit Court of the Ninth Judicial Circuit of Florida. The questions are:

1. Whether the use of public school property located within the city limits and within the school district is subject in any manner to city zoning ordinances.
2. If the above question is answered in the affirmative, what procedural and judicial steps are to be followed in the resolution of land-use disputes between the School Board and the city.

With regard to the first question this Court has already decided the issue in Village of North Palm Beach v. School Board of Palm Beach County, 349 So.2d 683 (Fla.4th DCA 1977). Unfortunately, the trial court did not have this decision available at the time he certified the questions to us. Nevertheless, we adhere to our ruling in the Village of North Palm Beach case and accordingly answer the first question in the affirmative.

With regard to the second question we find that it does not fall within Rule 4.6, Fla.R.App.P. (1962 Revision) in that our answer, if given, would not be determinative of the cause. Accordingly, we decline to answer the second question. Chapman v. Slaff, 101 So.2d 413 (Fla.1st DCA 1958); 2 Fla.Jur., “Appeals,” Section 433.

DOWNEY, C. J., and LETTS, J., concur.


author: DAUKSCH, Judge.

text:
    GREEN CRANE SERVICE, INC., Green Concrete Service, Inc., Robert A. Green and Delores Green, Plaintiffs, v. SUN FIRST NATIONAL BANK OF DELRAY BEACH et al., Defendants.
    No. 77-2505.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1978.
    James McDouglas and Douglas C. Fulton of Wearn & Fulton, West Palm Beach, for plaintiffs.
    Cone, Owen, Wagner, Nugent, Johnson & McKeown, P.A., and Larry Klein, West Palm Beach, for defendant-Sun First National Bank of Delray Beach.
    Anthpny E. Pucillo of Jones, Paine & Foster, P.A., West Palm Beach, for defendants-Frederick J. Teschke, E. C. Pierce, Charles C. Barr, Owen T. Billingsley, Fred F. Koch, Jr., C. E. LeGette, J. Morgan Mi-kell and Robert E. Raborn.
   DAUKSCH, Judge.

The trial court has certified to us a question of law. We have determined that the matter is not properly certified because the answer would not be finally determinative of the cause. Fla.R.App.P. 4.6.

CERTIFICATE DENIED.

BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur.


author: GREEN, OLIVER L., Associate Judge.

text:
    William McAFEE, as personal representative of the Estate of Kathleen Marie McAfee, Deceased, Plaintiff, v. Edward R. KIRKLAND, Jr., and Cincinnati Insurance Company, a Foreign Corporation, Defendants.
    No. 78-306.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1978.

      Jacqueline R. Griffin of Wells, Gattis & Hallowes, P. A., Orlando, for plaintiff.
    J. David Walsh of Gosney, Cameron & Parsons, Daytona Beach, for defendants-Edward R. Kirkland, Jr., and Cincinnati Ins. Co.
   GREEN, OLIVER L., Associate Judge.

We are presented the following question: Whether, Plaintiff, WILLIAM C. McAF-EE, as personal representative of the Estate of KATHLEEN MARIE McAFEE, may assert a claim for mental pain and suffering of the parents of KATHLEEN MARIE McAFEE, occasioned by the wrongful death of their 19 year old dependent daughter as permitted by the provisions of Florida Statute 768.18(2) in effect at the time the civil action was filed in October of 1977; or whether such claim is precluded by the provisions of Florida Statute 768.18(2) in effect at the time the accident occurred in June of 1976.

We answer the question in the negative, i. e., plaintiff, William C. McAfee, as personal representative of the Estate of Kathleen Marie McAfee is precluded from asserting a claim under the stated circumstances.

The able judge below answered the question differently, holding that the claim was sustainable because of legal concepts set forth in the cases of Florida East Coast Railway Company v. Rouse, 194 So.2d 260 (Fla.1967), and Ingerson v. State Farm Mutual Automobile Insurance Company, 272 So.2d 862 (Fla.3d DCA 1973).

The trial judge apparently failed to take into account Section 45, Chapter 77-468, Laws of Florida, which provides that Section 40 of that Act, amending Subsection 2 of Section 768.18, Florida Statutes, was to take effect July 1, 1977 and apply “to all claims arising out of accidents occurring after said date.”

The above question certified in this appeal is found to be controlled by Section 45, Chapter 77-468, Laws of Florida, and therefore the question is answered in the negative.

BERANEK, J., concurs.

DAUKSCH, J., concurs in conclusion only.


text:
    Harold YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 77-1436.
    District Court of Appeal of Florida, Second District.
    Sept. 20, 1978.
    Jack 0. Johnson, Public Defender, and James R. Wulchak, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error; therefore, the judgment appealed is affirmed.

The only point which merits discussion is the propriety of the appellant’s sentence to confinement “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for its imposition as a sentence for any offense. Spel ler v. State, 305 So.2d 231 (Fla. 2d DCA 1974).

Remanded for the purpose of striking the language “at hard labor” from the sentencing order; otherwise affirmed. Appellant need not be present for this purpose.

BOARDMAN, Acting C. J., and SCHEB and DANAHY, JJ., concur.


text:
    Robert Michael BROOKER, Appellant, v. STATE of Florida, Appellee.
    No. 77-1820.
    District Court of Appeal of Florida, Second District.
    Sept. 20, 1978.
    Jack 0. Johnson, Public Defender, and James R. Wulchak, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed is affirmed, but this case is remanded for resentencing of appellant. Appellant and his brother William Glen Brooker were jointly charged in a four-count information: count 1 charged William , with possession of a firearm by a convicted felon; count 2 charged appellant with possession of a firearm by a convicted felon; and each of counts 3 and 4 charged both brothers with grand larceny. At the same plea hearing both appellant and his brother pled guilty as charged to all of the charges against them and were given five-year concurrent sentences on all applicable counts. It is clear from the plea hearing transcript that the trial judge understood which counts applied to each brother, but a clerical error occurred in the entry of the written judgment and sentence, resulting in appellant’s being adjudicated guilty and sentenced on count 1, with which he was not charged. This should be corrected on remand.

In addition, the present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975). Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975). Moreover, the phrase “at hard labor” in the sentence is improper because no existing state statute provides for imprisonment at hard labor as a sentence for any offense. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974). Appellant need not be present at resentencing.

BOARDMAN, Acting C. J., and SCHEB and DANAHY, JJ., concur.


text:
    STATE of Florida, Appellant, v. John J. RHEINSMITH, Jr., Appellee.
    No. 77-2047.
    District Court of Appeal of Florida, Second District.
    Sept. 20, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and Daphne W. Boswell, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

The State of Florida appeals the discharge of John J. Rheinsmith, Jr. pursuant to his demand for speedy trial.

We reverse upon the following facts:

On June 15, 1977, Rheinsmith was charged with grand larceny. Thereafter a trial date was set by court order. It was reset for September 30 by stipulation of counsel. On September 28,1977, defendant filed a demand for speedy trial. On the day of trial the prosecutor moved for a continuance. The motion was denied and the state voluntarily nolle prossed the charges.

Two weeks later new charges of grand larceny were filed against Rheinsmith based upon the same conduct giving rise to the June 15 charges. Trial was set for November 17, 1977. On that date the state filed a written motion for continuance alleging that an essential witness would be out of the United States until after Thanksgiving. The motion was granted. On December 7, 1977 Rheinsmith moved for discharge based upon the speedy trial demand filed in the first criminal action. After a hearing the court ordered appellant discharged.

Rheinsmith urges that the demand for speedy trial filed in the first prosecution should also apply to the second case without the demand being refiled. We agree with this assertion. The intent and effect of the speedy trial rule cannot be avoided by the state through the device of entering a nolle prosse to a criminal charge and then filing a new information based on the same conduct. See Fla.R.Crim.P. 3.191(b)(2). The post-demand speedy trial period of 60 days ran to November 28. Before that date the state had, on November 17, filed a motion for continuance based upon the nonavailability of a witness whose presence was uniquely necessary for the trial. A continuance granted upon such an exceptional circumstance extends the speedy trial period. See Fla.R.Crim.P. 3.191(f)(1); State v. Felton, 348 So.2d 1214 (Fla. 4th DCA 1977).

The court’s order discharging Rheinsmith is therefore reversed and the cause remanded for further proceedings consistent with this opinion.

GRIMES, C. J., and HOBSON and SCHEB, JJ., concur.


text:
    ASSOCIATES CAPITAL SERVICES CORP., Appellant, v. SYLVAN SHORES, INC., Appellee.
    No. 78-428.
    District Court of Appeal of Florida, Second District.
    Sept. 20, 1978.
    John M. Hodges of Bernstein, Sherr, Hodges, Lancer & Vandroff, Sarasota, for appellant.
    R. P. Dunty, Jr., and Michael A. Rider, Lake Placid, for appellee.
   PER CURIAM.

Reversed on the authority of Cheezem Development Corporation v. Maddox Roof Service, Inc., No. 78-61, 362 So.2d 99 (Fla. 2d DCA filed August 18, 1978).

BOARDMAN, Acting C. J., and SCHEB and DANAHY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Edward Bernard WILLIAMS, Angus Barnes, Edward Grice and Gwendolyn Denise Davis, Appellees.
    Nos. 77-2112, 77-2113, 77-2114, 77-2115, 77-2116, 77-2117, 77-2118, 77-2119, 77-2120 and 77-2121.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and Karal B. Rushing, Asst. Public Defender, Bartow, for appellees.
   ON MOTION TO DISMISS

PER CURIAM.

On November 2, 1977, and November 3, 1977, the trial court entered orders discharging the appellees under the speedy trial rule, Fla.R.Crim.P. 3.191. On November 4, 1977, the state filed petitions to reconsider these orders. The court denied these petitions on December 9, 1977. The state filed its notices of appeal on December 21, 1977, and December 22, 1977.

Fla.R.App.P. 3.2(b) requires that appeals be commenced within thirty days of the rendition of the order appealed from. The state concedes that if the rendition dates were November 2 and 3, 1977, its appeals were untimely, but it argues that the filing of the petitions for reconsideration postponed rendition of the orders until the court disposed of the petitions. We cannot agree. A petition for reconsideration will postpone the date of rendition only when it is authorized by the applicable rules. Fla.R.App.P. 1.3; State ex rel. Shevin v. Mann, 290 So.2d 1 (Fla.1974). We have reviewed the Rules of Criminal Procedure, and we cannot find a rule which authorizes a petition for reconsideration of an order granting a motion for discharge. While it might be desirable to provide a vehicle for the rehearing of an order of discharge, this is a matter which must be addressed to those charged with the drafting and promulgation of the rules.

The appeals are hereby dismissed.

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

      . Rule 9.140(c)(1) of the new Appellate Rules which became effective on March 1, 1978, now requires appeals by the state to be commenced within fifteen days.


text:
    C. Dana ROLLINGS, Appellant, v. June Kirn ROLLINGS, Appellee.
    No. 78-312.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 1978.
    Richard E. Nelson and Robert C. Widman of Nelson, Hesse, Cyril, Weber & Sparrow, Sarasota, for appellant.
    Clyde C. Goebel of Grimes, Goebel, Parry, Blue & Boylston, Bradenton, for appellee.
   RYDER, Judge.

The appellant/husband appeals a final judgment of dissolution of marriage and raises only one meritorious point on appeal, that relating to an award of child support to his three children in the sum of $200.00 per month per child. Two of the children at the time of the final judgment were sixteen and thirteen. The third, Ann, was eighteen years of age.

There is authority in this state to require continuance of support of dependent progeny past the age of majority, and, in certain instances, when they attend college. However, under the facts of this case, and in the absence of an agreement by the appellant to continue support for his eighteen year old daughter, we find the trial court erred in ordering such support for her. Kowalski v. Kowalski, 315 So.2d 497 (Fla. 2d DCA 1975); White v. White, 296 So.2d 619 (Fla. 1st DCA 1974); Perla v. Perla, 58 So.2d 689 (Fla.1952).

Therefore, to the extent the final judgment orders payment of child support to appellant’s daughter Ann after her eighteenth birthday the same should be and is hereby reversed. However, this judgment of dissolution in all other aspects should be and is hereby affirmed.

AFFIRMED in part; REVERSED in part.

BOARDMAN, Acting C. J., and OTT, J., concur.

      . Finn v. Finn, 312 So.2d 726 (Fla.1975); Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978). In all fairness to the trial judge herein, the Kern case was decided July 12, 1978, some months after the entry of the trial judge’s order.


text:
    John MARSHALL, Petitioner, v. STATE of Florida, Respondent.
    No. 78-1123.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 1978.
    Raymond L. Goodman, Orlando, for petitioner.
    James T. Russell, State’s Atty., and Charles E. Jacobson, Asst. State’s Atty., Clearwater, for respondent.
   RYDER, Judge.

Petitioner seeks review of an order of the circuit court, sitting in its appellate capacity, which affirmed two orders of the county court denying petitioner’s motions to suppress evidence and for discharge. We have reviewed the circuit court’s order, and we find that it complies with the essential requirements of the law.

Petitioner filed his motion to suppress in this case after the State had charged him with eight counts of possession of obscene material. The incident which led to petitioner’s arrest on these charges occurred as follows: Pinellas County Judge Jerry R. Parker, accompanied by law enforcement officials, went to the adult bookstore where petitioner worked and there viewed eight photographs which were arranged in a display to advertise movies shown in the bookstore. Judge Parker made a preliminary finding of obscenity as to each of the photographs and communicated his findings to the officers. They, in turn, seized the eight photographs and arrested petitioner.

Petitioner argues here as he argued in the courts below that the seizure of the photographs was illegal because Judge Parker never issued a search warrant authorizing the seizure. In support of his contention, he cites Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973).

It is true that Roaden holds that a search warrant is a necessary prerequisite to the seizure of allegedly obscene materials. However, we do not believe that Roa-den requires a reversal in the present case because we think that the procedure employed by Judge Parker was an adequate substitute for a search warrant. The purpose of requiring a search warrant is to ensure that a magistrate has carefully considered the question of obscenity and determined exactly what is to be seized. See Roaden v. Kentucky, supra, 413 U.S. at 503, 504, 93 S.Ct. at 2801, 37 L.Ed.2d at 764, 765. Here, Judge Parker viewed each picture that was to be seized, determined that each was obscene, and then told the officers who were with him exactly what they should seize. Thus, to say that in this case the seizure was invalid because of the absence of a written warrant would mean a reversal of petitioner’s conviction on the basis of a mere technicality.

What we have said should, of course, not be taken to mean that the presence of a magistrate when obscene materials are seized will always insulate the seizure from attack. In this connection, we note that Judge Parker was legally in the bookstore since it was open to the public and that the pictures he examined were in plain view. We also note that petitioner has made no attack on Judge Parker’s position as a neutral and detached magistrate. Any variance in these factors could have altered the outcome of this case. See generally Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973).

Petitioner’s other point, which raises a speedy trial question, is also without merit. State v. Luck, 336 So.2d 464 (Fla. 2d DCA 1976). Accordingly, we deny the petition for a writ of certiorari.

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


author: KEHOE, Judge.

text:
    CENTRAL INVESTMENT ASSOCIATES, INC., Ronald Shears and Nolan Brewer, Appellants, v. LEASING SERVICE CORPORATION, etc., Appellee.
    No. 77-324.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1978.

      Leo Greenfield, North Miami, and Alan M. Rubin, Orlando, for appellants.
    Friedman, Britton, Cohen, Kaufman, Zin-kow, Benson & Schantz and J. T. Haley, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellants, defendants below, bring this appeal from a final judgment and judgment for costs and attorneys’ fees entered by the trial court on January 14 and 31, 1977, respectively. We affirm as to appellant Central Investments Associates, Inc., and reverse as to appellants Nolan Brewer and Ronald Shears.

On November 7, 1973, appellant Central Investments Associates, Inc., [hereinafter referred to as Central] and appellee entered into a written personal property lease for a baekhoe. Appellants Brewer and Shears entered into an agreement with appellee as guarantors of the lease. Subsequently, after acknowledging receipt of the baekhoe, appellant Central failed to make the lease payment due in January, 1975. Upon default by appellant Central in the lease payment appellee made a demand for the return of its property. Appellant Central refused to return the baekhoe, and appellee had to resort to replevin to obtain possession of the baekhoe. After notice to appellants, appellee was the purchaser of the equipment at a public auction. Thereafter, appellee determined a deficiency due under the lease. Upon trial, the court entered its judgment in replevin in favor of appellee and assessed money damages in the amount of $67,558.25. The trial court then, upon appellee’s motion for entry of cost judgment and taxation of attorneys’ fees, entered a judgment in favor of appellee for $251.75 costs and $7,645.00 attorneys’ fees. From these judgments, appellants appeal.

Appellants raise the following two points on appeal: (1) that the trial court erred in setting the cause for a non-jury trial; thereby, denying appellants their right to a jury trial; and (2) that the trial court erred in entering the judgments appealed because the lease was in substance a loan and financing agreement which provided for installment payments yielding a rate of return in excess of 30%, a violation of the usury laws of Florida.

Paragraph 17 of the lease agreement provided, in pertinent part, that “Lessee and Lessor hereby waive any and all right to a trial by jury in action based hereon or arising hereunder.” Further, the lease provided that the contract between the parties would have to be governed by New York law. Waivers of trials by juries have been held to be enforceable in New York. For example, the New York Supreme Court, Appellate Division- — First Department in the case of Talcott v. Wilson Hosiery Co., 32 A.D.2d 524, 299 N.Y.S.2d 460 (1969) stated, citing numerous cases, as follows:

“The court below denied the motion to strike the jury demand upon the sole claim of the respondents that they had been unaware that each instrument contained a jury waiver provision. In so doing the court erred.
“Ordinarily, the signer of a deed or other instrument, expressive of a jural act, is conclusively bound hereby. That his mind never gave assent to the terms expressed is not material.” Pimpinello v. Swift & Co., 253 N.Y. 159, 162, 170 N.E. 530, 531.
“Not to have read the contract or to have had it read to him before signing, if that be a fact as he testified, furnishes no basis for his repudiation of any of its terms Dambmann v. Schulting, 75 N.Y. 55, 61; Pimpinello v. Swift & Co., 253 N.Y. 159, 162, 163, 170 N.E. 530, 531; Amend v. Hurley, 293 N.Y. 587 at p. 595, 59 N.E.2d 416 at p. 419.
“The jury waivers in the factoring agreement and guaranty are enforceable and must be given effect (Franklin National Bank of Long Island v. Capobianco, 25 A.D.2d 445, 266 N.Y.S.2d 961; Security National Bank of Long Island v. Estatio, 29 A.D.2d 887, 288 N.Y.S.2d 573; Bonnie-Lassie Sportswear, Inc. v. Century Factors, Inc., 283 App.Div. 702, 127 N.Y.S.2d 740; Freeman v. Island Discount Corp., 5 A.D.2d 778, 169 N.Y.S.2d 830; Caplan v. Goldman, 197 Misc. 404, 95 N.Y.S.2d 835, aff’d 278 A.D. 807, 104 N.Y.S.2d 804).”

Although we are unaware of any Florida case directly on point, i. e. whether a party to a contract may waive his right to a jury trial, other jurisdictions have frequently taken the position that parties to a contract may waive their right to a jury trial. See Annot., 73 A.L.R.2d 1332 (1960). We are unaware of any public policy reason why the provision, in the instant case, should not be enforced in this State. Appellant Central and appellee, both experienced in commercial leasing, agreed that any controversy arising under their lease would be tried non-jury. The waiver is clear, unambiguous, and should be given its intended force and effect between them.

However, appellants further argue that, even if valid, the waiver provision should not be applicable to their demand for a jury trial of their counterclaim seeking to have the lease declared null and void as being a scheme in violation of the usury laws of Florida. Our review of the record, in particular the lease agreement and the pleadings, leads us to the conclusion that the allegations of the counterclaim are substantially within the terms of the waiver provision and, accordingly, should be governed by it.

We have a different question in regard to the effect, if any, of the provision on appellants Brewer and Shears. They only entered into an agreement with appel-lee as guarantors of the lease agreement; they were not parties, as such, to the lease itself. After reviewing the appropriate portions of the record, we are of the opinion that the waiver provision of the lease was not applicable to appellants Brewer and Shears. Therefore, they were entitled to a jury trial on the appropriate issues raised by their counterclaim. For that reason, the judgments appealed must be reversed as to appellants Brewer and Shears.

Appellant Central’s second major point on appeal urges, basically, that the judgments rendered against it were not supported by competent substantial evidence. We disagree. Although evidence was presented on both sides of the issues raised in the trial court, in our opinion there was substantial competent evidence to support the judgments. See, e. g., South Carolina Insurance Co. v. Wolf, 331 So.2d 337 (Fla. 1st DCA 1976); Sharp v. Dixon, 252 So.2d 805 (Fla. 4th DCA 1971); and Maule Industries, Inc., v. Watson, 201 So.2d 631 (Fla. 3d DCA 1967).

Affirmed as to appellant Central; reversed and remanded for a trial in accordance with this opinion as to appellants Brewer and Shears.


text:
    CONTINENTAL WESTERN LIFE INSURANCE COMPANY, Appellant, v. David PLATT, Appellee.
    No. 77-858.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1978.
    Wood, Whitesell & Karp and Samuel S. Duffey, Sarasota, for appellant.
    Ciravolo & Feldman and Bennett G. Feld-man, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, appeals an adverse summary final judgment holding that its Iowa judgment against appellee, defendant below, cannot be reduced to a Florida judgment. We reverse.

The reason assigned by the trial court in its summary final judgment for refusing to reduce appellant’s Iowa judgment to a Florida judgment was its finding that appellant did not acquire jurisdiction of appellee on a suit on a promissory note by virtue of Section 617.3, Iowa Statutes (1976) (long arm statute), because appellee did not have sufficient contacts with Iowa to' confer jurisdiction of the Iowa courts over him.

In our opinion, appellee did have sufficient minimum contacts with Iowa for its long arm statute to confer jurisdiction over appellee. Without attempting to specifically interpret Iowa’s statute, our review of the record shows, among other things, the following: the lending party was located in Iowa; borrower agreed to pay, and did make, payments in Iowa; and business records were maintained in Iowa. The focus of a court’s analysis of the minimum contact requirement should not be upon the physical presence of a defendant in the state seeking to obtain jurisdiction, but rather upon the contract itself. If the contract has a substantial connection with the state seeking to assert its jurisdiction, generally, the minimum contact requirement will be satisfied. In the instant case, we feel, based on the criteria set forth above, that this contract has such a substantial contact with Iowa. See, e. g., Midwest Packaging Corp. v. Oerlikon Plastics, Ltd., 279 F.Supp. 816 (S.D.Iowa 1968); and Lundell v. Massey-Ferguson Service N.V., 277 F.Supp. 940 (N.D.Iowa 1967). Accordingly, the judgment appealed is reversed and the cause is remanded for further proceeding consistent with this opinion.

Reversed and remanded.


text:
    The FLORIDA BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, Appellant, v. WAKULLA SILVER SPRINGS COMPANY, Appellee.
    No. 77-977.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1978.
    Robert L. Shevin, Atty. Gen. and Martin S. Friedman, Asst. Atty. Gen. and Ana Tan-gel, Legal Intern, Tallahassee, for appellant.
    Kent, Sears, Durden & Kent and Fred H. Kent, Jr., Jacksonville, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, The Florida Board of Trustees of the Internal Improvement Trust Fund, defendant below, brings this appeal from a final judgment entered on April 6, 1977, by the trial court in favor of appellee, Wakulla Silver Springs Company, plaintiff below. We affirm.

This action was filed on November 1, 1971, by appellee against appellant seeking a declaratory judgment as to the location of the boundary line of a tract of land owned by appellee on Key Largo, Monroe County, Florida. The tract owned by appellee is bound on three sides by water and it is admitted that appellant owns the adjacent submerged lands.

The complaint alleges that the waterfront lands owned by appellee were conveyed to its predecessors in title by deeds incorporating the plat of the original United States survey and that appellee and its predecessors in title have paid taxes on the lands based upon that description. Appel-lee admits that the mean high water line (MHWL) is the boundary; however, it alleges that the MHWL cannot be located accurately on these lands because the lands are low, wet, mangrove swamp.

Pursuant to appellee’s motion for summary judgment, the trial court entered a partial summary judgment which held that appellee was the owner of the land in question, but the trial court reserved ruling on the location of the boundaries of the land. Also, appellant filed a motion to dismiss portions of appellee’s complaint. This motion was denied by the trial court on April 1, 1973, and affirmed by this court on appeal in State Board of Trustees of Internal Improvement Trust Fund v. Pineta Co., 287 So.2d 126 (Fla. 3d DCA 1973).

This action was tried non-jury before the Honorable Ignatuis Lester on several days in April, May, and June of 1975. The final judgment entered by the trial judge on April 6, 1977, made extensive findings of fact and conclusions of law. Because of its complete treatment of the questions presented, we believe that the final judgment is deserving of being set forth herein. Further, we hold that the final judgment correctly disposed of the questions involved. The pertinent portions of the final judgment are as follows:

“This action was filed in November of 1971 by Wakulla Silver Springs Company (“Wakulla”) under Chapter 87, F.S. (now Chapter 86, F.S.) seeking a declaratory judgment to determine the location of the boundary line which separates its lands from the submerged lands owned by the defendant, Board of Trustees of the Internal Improvement Trust Fund (“Trustees”). The land at issue is a contiguous tract situated on a small peninsula on the southeast coast of Key Largo and is described as follows:

In Section 32, Township 61 South, Range 39 East:
Government Lot 6
In Section 5, Township 62 South, Range 39 East:
W xk of Government Lot 1
W Va of Government Lot 3
All of Government Lot 2
All of Government Lot 4

Each of the government lots contains wat-erfrontage, being bordered on one or more sides by either the Atlantic Ocean, Rock Harbor inlet or Rock Harbor basin.

“A partial summary judgment was entered on February 23, 1973 which held that Wakulla had title to the lands described above; however, the Court reserved ruling as to the boundaries of those lands. Final hearing was held before the Court, sitting without a jury on the amended complaint and answer in April and May of 1975.

“Wakulla contended at the final hearing: first, that it (or its immediate predecessor in the chain of title) was conveyed title to those government lots by the Trustees in 1943 and 1944; that at that time, the Trustees had the power to convey submerged lands; that if any of the lands at issue were or are below the mean high water line, then those submerged lands were conveyed to it by the Trustees. Second, Wakulla argued that the mean high water line rule does not apply to the west or northern coast of the peninsula because neither Rock Harbor inlet nor Rock Harbor basin are navigable. Third, that the Trustees are both legally and equitably estopped from reclaiming title to the lands at issue; and fourth, that the mean high water line cannot be located reasonably within the foreseeable future.

“The Board of Trustees contended that it has title to all lands lying below the mean high water line; that the mean high water line can be located; and that the meander line of the United States survey neither was nor is a boundary line.

1. Jurisdiction

“This Court has jurisdiction over both the parties to this action and the subject matter of this action, a question which was decided by the District Court of Appeal, Third District in its decision reported at 287 So.2d 126 (Fla. 3rd D.C.A. 1973).

2. The Land

“The government lots at issue are situated on a small peninsula on the southeast coast of Key Largo. The peninsula is bounded on the southeast by the Atlantic Ocean, on the west by Rock Harbor inlet and on the north by Rock Harbor basin. The total acreages recited in the Trustees’ deed of conveyance to Wakulla or its predecessor in title, is 125.5 acres. The following is a drawing of the five government lots involved and the surrounding waters:

“The land itself, except for a small area in the northeast corner is low, flat, wet and covered with a dense growth of mangrove. The elevation of the land in the northeast corner of the property is relatively high. The nature of the land is a complicating factor. Most of the land is so low and flat that a slight vertical error in elevation of mean high water when projected onto the horizontal plane, would result in a substantial error in the location of the boundary line. Further, the mud and dense growth of mangrove add to the surveyors’ problems.

3.History of Land Conveyances in Florida

“The United States acquired from Spain, by treaty in 1819, full property and sovereignty to all lands in Florida except those lands granted and approved prior to January 24,1818. Under that treaty, the United States acquired title to the lands which constitute the beds or shores of the navigable waters as well as all other lands not privately owned. Trustees of the Internal Improvement Fund v. Root, 63 Fla. 666, 58 So. 371 (1912); State, ex rel Ellis v. Gerbing, 56 Fla. 603, 47 So. 353 (1908); and U. S. v. 2,899.17 acres of land, 269 Fed.Supp. 903 (M.D.Fla.1967). Upon its admission to the Union in 1845, Florida acquired the right to own and hold the lands under navigable waters lying within the State, including the shores and space between the ordinary high and low water marks, which are called sovereignty lands. State, ex rel Ellis v. Gerbing, supra. Title to all other lands in the State of Florida remained in the United States.

“Congress, by Chapter LXXXIV, Acts of Congress of the United States, September 28, 1850, 9 Stat. 519 (43 U.S.C.A. § 981 et seq.) granted and set up procedures for conveying swamp and overflowed lands to the State. The Act provided that the Secretary of Interior prepare an accurate list and survey plats of the swamp and overflowed lands and that he transmit these to the Governor of the State. The Governor of the State then submitted a selection list to the Secretary of Interior and certified to the Secretary that the lands were swamp and overflowed lands. Upon receipt of the certified selection list, the Secretary of Interior conveyed the lands to the State. Pierce v. Warren, 47 So.2d 857 (Fla.1950). Title to all sovereign lands and swamp and overflowed lands, upon receipt by the State of Florida, was vested in the Trustees of the Internal Improvement Fund. See Chapter 253, F.S.

“The Trustees did not have the power to convey sovereign lands prior to the enactment of Chapter 7304, Laws of Florida, Acts of 1917. Pierce v. Warren, supra. However, since 1917, the Trustees not only have had the power to convey submerged lands, but in fact, have conveyed hundreds of acres of submerged, sovereign lands to private individuals or corporations.

4. The Conveyance to Wakulla or its Predecessor in Title

“The United States caused the lands in this action to be surveyed and the coastline meandered in 1872. The United States survey platted the lands into government lots, and determined as a part of the plat, the acreage of each of those lots. Where a lot was bordered on one or more sides by water, the meander line of the coastline was used to determine the acreage of the lot. The lands involved in this action were conveyed either by patent from the United States to a private individual (Lot 6) or to the Trustees of the Internal Improvement Fund (Lots 1, 2, 3 and 4). The United States based the descriptions it used in its patents upon the plat of the original government survey, including the amount of acreage being conveyed. The State of Florida, in turn, used this same description, including the acreage, in its reconveyance of those lands.

“The Trustees of the Internal Improvement Fund conveyed all the lands involved in this action to either Wakulla or its immediate predecessor in title by tax deeds in 1943 and 1944. In both conveyances, the Trustees utilized the descriptions of the original plat of the United States survey and the acreages which were determined by utilization of the meanderline on that plat. Wakulla and its predecessor in title have paid the taxes imposed by the State of Florida since 1943 and 1944. These taxes were and are based upon the acreages shown on both the plat of the United States Government survey and the deeds of conveyance by the Trustee.

‘(4) No. Date Description
787 1927 Pt Gov Lot 1-3 Key 8467 1933 Largo, Deed Record
Book D4 Page 344.
Deed Record Book C2
Page 417. As re-
corded in Monroe
County Records.

“County of Monroe Deed # 469 from the State of Florida through the Trustees of the Internal Improvement Fund of the State of Florida to Silver Springs Ocala Co., Inc. as well as Corrective Deed # 469 from the Trustees to the Silver Springs Ocala Company (now Wakulla) contains the following language:

‘(3) KNOW ALL MEN BY THESE PRESENTS: That the State of Florida, through the Trustees of the Internal Improvement Fund of the State of Florida, under authority of Section 9 of Chapter 18296, Laws of Florida, Acts of 1937, for and in consideration of the amount of Seventeen Hundred Thirty-seven & 50/100 Dollars ($1737.50) to them in hand paid, the receipt of which is hereby acknowledged, has granted, bargained and sold, and by these presents does grant, bargain, sell and convey all of the right, title and interest of the State of Florida arising out of said Section 9 of Chapter 18296, unto the said GRANTEE, its successors and assigns, in and to the following described land, situate, lying and being in the County of Monroe, State of Florida, as referred to, identified and described by the State and County tax sale certificates to-wit: (Emphasis added)

Sec. Tp. Rg. Ac. Amount Rec’d
5 62 39 15 $ 187.50

‘RESERVING unto the State of Florida easement for State Road Right of Way Two Hundred (200) feet wide, lying equally on each side of the center line of any State Road existing on the date of this deed through so much of any parcel herein described as is within One Hundred (100) feet of said center line.

‘(5) TO HAVE AND TO HOLD the above granted and described premises unto the said GRANTEE, and its successors and assigns forever, all in pursuance of Section 9 of Chapter 18296 aforesaid.’

The identical form of deed was used to convey Lot 6 to Wakulla’s predecessor in title. The language used by the Trustees clearly conveys all of the State’s interest in the lands, except for the reservation of a possible right-of-way. The language used in the deed from the Trustees to Wakulla could have conveyed both uplands and submerged lands. When lands are conveyed according to the plat of the original United States survey, the notes, lines, landmarks and other particulars become as much a part of the patent or deed as if they were set forth in it. South Florida Farms Co. v. Goodno, 84 Fla. 532, 94 So. 672 (1922). Ordinarily, a meander line is not a boundary line; however, a meander line may constitute a boundary line where so intended. Lord v. Curry, 71 Fla. 68, 71 So. 21 (1916) and Lopez v. Smith, 109 So.2d 176 (Fla. 2nd D.C.A. 1959).

“The Trustees intended to convey a specific amount of acreage and in spite of the fact that the meander line must be considered a boundary line to obtain that amount of acreage, the Court does not hold that the parties to the tax deed in question intended the meander line to be a boundary line.

5. Navigability

“Wakulla contended that Rock Harbor inlet and Rock Harbor basin are not navigable. It should be noted that Wakulla does not assert its ownership of the lands under those non-navigable waters, but it contends that the rule as to the mean high water line does not apply to its adjacent coastline because those waters are non-navigable. In Florida, waters are not considered navigable merely because they are affected by the rise and fall of the tides. Lopez v. Smith, 109 So.2d 176 (Fla. 2nd D.C.A. 1959) and City of Tarpon Springs v. Smith, 81 Fla. 479, 88 So. 613 (1921), and if it is determined that the waters adjacent to a shoreline are not navigable, the State does not hold title to the shoreline below the mean high water line. City of Tarpon Springs v. Smith, supra.

“Navigability is dependent upon an application of existing law to the particular facts of each case. Broward v. Mabry, 58 Fla. 398, 50 So. 826 (1909), Clement v. Watson, 63 Fla. 109, 48 [58] So. 25 (1912). Rock Harbor inlet and basin are both very shallow. The National Ocean Survey charts show that, except where a channel has been dredged for access to a subdivision on Rock Harbor inlet, the depths of that body of water (where they can be measured) are between one-half (V2) foot and one (1) foot. The basin is very shallow. Much of it is dry at low tide and the balance is so shallow that defendant’s representatives could not install its tide gauge except in a dredged canal. Finally, the evidence clearly shows that it was necessary to dredge channels across Rock Harbor inlet to the ocean in order to give the owners of boats in the subdivision on Rock Harbor inlet access to the sea.

“The Court finds that although the waters in both Rock Harbor inlet and basin are subject to the rise and fall of the tide, both bodies of water are non-navigable. The depths of both the inlet and the basin are so shallow that, unless dredged, they not only are inaccessible for commercial purposes, but also inaccessible to small, shallow-draft pleasure boats. In Florida, the subsequent dredging of a navigable channel across a non-navigable body of water does not render that body of water navigable. Clement v. Watson, supra.

6. Tidal Study and Surveys

“The Trustees made a tidal study to determine that the elevations of mean high water on Wakulla’s lands could be located and a survey to show the location of points that were at that mean high water line. The Trustees’ tidal study was performed by personnel of the State of Florida, the United States National Ocean Survey and a private contract firm. The method used was a short term method with an inherent error of ± .1 feet to ± .25 feet. John Michel, Wakulla’s expert witness, testified that when the rule of probabilities is applied to these results, including the inherent error, there is a probability of a still greater error. The evidence also showed that the inherent error resulting from the Trustees’ use of this short term method could result in an error in excess of 1,000 feet in the location of the boundary line.

“The Trustees did not locate a mean high water line, but only attempted to show that mean high water could be located. The surveys made by the Trustees purport to show the location on the ground of points of mean high water, the internal lot lines of the government lots and the original United States meander line. The Trustees offered into evidence two surveys, both made and certified by the same surveyor and both purporting to show points at mean high water. Although the Trustees’ surveyor certified that both surveys were accurate, they were in fact different and inconsistent as to the location of the points of mean high water.

“Secondly, the original lot lines and me-anderline were not properly located on the Trustees’ survey. The Trustees did not attempt to retrace the original government survey. Instead of attempting to relocate the lost or obliterated section and/or township corners, the Trustees used a section corner based upon the Model Land Company survey which, in turn, was based upon the right-of-way of the Florida East Coast Railway. These surveys were established over thirty years after the original survey.

“Wakulla did not make a tidal study. Its expert witness testified that it would require 18.6 to 19 years to obtain a sufficiently accurate elevation of mean high water to accurately locate a boundary line on these lands. The Trustees expert witnesses confirmed that a true, accurate determination of the mean high water line would require 18.6 to 19 years. See U. S. v. California, 382 U.S. 448, 15 L.Ed.2d 517, 86 S.Ct. 607 (1966); Borax Consolidated v. City of Los Angeles, 296 U.S. 10, 80 [L.]Ed. 9, 56 S.Ct. 23 (1935); U. S. v. Ray, 423 F.2d 16 (5th Cir. 1970). Wakulla had a survey made which was a retracement of the original government survey of these lands; then superimposed that survey upon a scaled aerial photograph.

“Wakulla’s surveyor restored the lost or obliterated northeast corner of Section 5, Township 62 South, Range 39 East, monu-mented that corner, then used that point of reference to retrace the interior lot lines and the original government meanderline. When Wakulla’s retracement survey is superimposed upon a scaled aerial photograph, the meanderline follows the actual coastline very closely. In addition, the evidence showed that if the plat of the government survey is used to determine Wakulla’s boundaries, there would be no encroachment by Wakulla on the privately owned adjacent lands.

“A comparison of the surveys in evidence shows that the Trustees’ surveys are in conflict, each with the other, and that the interior lot lines and meander line of both of the Trustees surveys are substantially offset from the retracement made by Wa-kulla’s surveyor. Wakulla’s retracement controls as to the location of the section corners, interior lot lines and the meander-line, because original actual surveys of public lands by the United States government, on the faith of which property rights have been acquired, control over surveys subsequently made. Kelsey v. Lake Childs Co., 93 Fla. 743, 112 So. 887 (1927).

“The Trustees did not obtain a mean high water line. The Trustees determined points along the coastline which purportedly are at mean high water. The Board of Trustees contends that it does not have to establish a mean high water line, but only show that a mean high water line can be established. This theory seems contrary to the decisions of the Florida Supreme Court in Trustees v. Wetstone, 222 So.2d 10 (Fla.1969); Martin v. Busch, 93 Fla. 535, 112 So. 274 (1927); and Hardee v. Horton, 90 Fla. 452, 108 So. 189 (1925). The inconsistencies in the surveys placed into evidence by the Trustees’ surveyor creates doubts that the Trustees, in fact, accurately located points which are at mean high water. In any event, the Court cannot rely on either of the Trustees’ surveys in its determination to locate the boundary line which separates Wakulla’s lands from the Trustees’ lands, in that no mean high water line was located on those surveys.

7. Location of the Boundary Line

“The Court after reviewing the evidence and testimony presented at the final hearing finds that Rock Harbor inlet and basin are not navigable. Thus, the meanderline of the original United States survey is the boundary line separating Wakulla’s lands in Government Lots 1, 2, 4 and 6 where the shores of those lots border Rock Harbor inlet and basin. Title to the submerged lands lying beneath Rock Harbor inlet and basin is in the Trustees. Lord v. Curry, 71 Fla. 68; 71 So. 21 (1916) and South Florida Farms Co. v. Goodno, 84 Fla. 532; 94 So. 672 (1922).

“The boundaries of Wakulla’s lands in Government Lots 3 and 4 which border the Atlantic Ocean is more difficult to determine. In the location of a boundary line, natural monuments prevail over courses and distances and courses and distances prevail over quantity. Trustees of the Internal Improvement Fund v. Wetstone, supra, and Calder v. Hillsboro Land Company, 122 So.2d 445 (Fla. 2nd D.C.A. 1960). Where a patent to public lands refers to the plat of the original United States survey and that plat shows that the land is bounded by a permanent body of water, the water line, not meanderline is the boundary. South Florida Farms Co. v. Goodno, supra. The natural monument is the body of water (the Atlantic Ocean) or the mean high water line. Trustees of the Internal Improvement Fund v. Wetstone, supra. The Trustees either did not or could not locate this natural monument.

“The only courses and distances available are those of the meanderline. The quantity, the acreage referred to on the original plat, is available. Under the circumstances and in the absence of better evidence, the Court must rely on the quantity of land conveyed by the Trustees; thus the mean-derline of the original United States survey which was used to determine the quantity of land in Government Lots 3 and 4 is the only boundary line available to the Court. Horne v. Smith (Fla.) 159 U.S. 40, 15 S.Ct. 988, 40 L.Ed. 68 (1895); Trustees of the Internal Improvement Fund v. Wetstone, supra; and Lopez v. Smith, 145 So.2d 509 (Fla. 2nd D.C.A. 1962). For the foregoing reason, the Court finds that the meander-line on the original United States survey and plat of 1872 of Government Lots 3 and 4 is the boundary line separating the uplands owned by Wakulla and the submerged, sovereign lands below the Atlantic Ocean owned by the Trustees. It therefore is:

“ORDERED AND ADJUDGED as follows:

1. The boundary line separating the uplands owned by plaintiff in Government Lot 6, Section 32, Township 61 South, Range 39 East; the West lk of Government Lots 1 and 3 and all of Government Lots 2 and 4 in Section 5, Township 62 South, Range 39 East, from the adjacent submerged lands owned by the Trustees is the meanderline of the United States survey of 1872, subject, however, to any subsequent natural changes such as acretion, erosion or reliction.

2. The title of plaintiff Wakulla Silver Springs Company to the lands lying within the boundaries of Government Lot 6, Section 32, Township 61 South, Range 39 East and the West V2 of Government Lots 1 and 3 and all of Government Lots 2 and 4 in Section 5, Township 62 South, Range 35 East as described in the United States survey and plat of 1872 is good title against the Florida State Board of Trustees of the Internal Improvement Trust Fund and all persons claiming by, through, under or against said Board of Trustees; any such claims or purported claims hereby are can-celled and the title to the above-described property is forever quieted in plaintiff.

3. The costs of this action shall be taxed against defendants.”

We find neither any need to add to the foregoing decision and opinion of the trial judgment nor any reason to disturb it. Accordingly, the final judgment appealed is affirmed.

Affirmed.


text:
    Shepherd A. MEGGETT, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1043.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1978.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz and Frederick C. Sake, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

Affirmed. Hill v. State, 133 So.2d 68 (Fla.1961); Spencer v. State, 133 So.2d 729 (Fla.1961); Scott v. State, 256 So.2d 19 (Fla. 4th DCA 1971); Mack v. State, 270 So.2d 382 (Fla. 3d DCA 1972); State v. Bryan, 287 So.2d 73 (Fla.1973); Lynch v. State, 293 So.2d 44 (Fla.1974); Henderson v. State, 304 So.2d 537 (Fla. 3d DCA 1974); Walker v. State, 330 So.2d 110 (Fla. 3d DCA 1976).


text:
    Ben OKUN and Sydney Okun, his wife, Appellants, v. STUART HOUSE CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 77-1484.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1978.

      L. J. Cushman, Miami, for appellants.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks and Alan H. Lubitz, Miami, for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

Affirmed. The record on appeal in the instant case does not contain a transcript of either the trial below or the evidentiary hearing on attorneys’ fees. Because the final judgment in foreclosure appealed relates directly to these matters, we do not have before us an adequate record upon which to review the actions of the trial court. Accordingly, we must assume that the judgment appealed is correct; therefore, we affirm. See, e. g., Williamson v. Williamson, 335 So.2d 346 (Fla. 1st DCA 1976); Strickland v. Lewis, 328 So.2d 244 (Fla.1st DCA 1976); Dade County Board of Public Instruction v. Foster, 307 So.2d 502 (Fla.3d DCA 1975); Butler v. Metropolitan Dade County, 298 So.2d 552 (Fla.3d DCA 1974).

Affirmed.


text:
    Emory HARVEY, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2147.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1978.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., and John C. Moppert, Legal Intern, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   PER CURIAM.

Affirmed. Bell v. State, 354 So.2d 1266 (Fla.3d DCA 1978); White v. State, 324 So.2d 115 (Fla.3d DCA 1975).


text:
    Jose Emilio REIGOSA, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2655.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1978.

      Bennett H. Brummer, Public' Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and BARKDULL and KEHOE, JJ.

      Chief Judge Haverfield participated in the decision in this case but did not hear oral argument.

   KEHOE, Judge.

This is an appeal of an order of involuntary hospitalization under the Baker Act, specifically Section 394.467, Florida Statutes [1977]. We reverse.

A careful review of the record of the hearing on the state’s petition for involuntary hospitalization reveals that although it was adequately proven that appellant was mentally ill, he was not shown to be dangerous to himself. Neither did the state show by clear and convincing evidence that he was dangerous to others, physically or emotionally, or without the capacity to survive in freedom with the help of family or friends. Indeed, the record is barren of any exploration of less restrictive alternatives to involuntary hospitalization.

Absent clear and convincing proof that an individual is dangerous to himself or others, the state may not deprive him of his freedom on the basis of mental illness alone if he is capable of surviving with help in freedom. O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); In re Beverly, 342 So.2d 481 (Fla. 1977); In re Smith, 342 So.2d 491 (Fla.1977).

The order of the trial court is reversed, and the cause is remanded with instructions to consider the possibilities of other means of treating appellant than by involuntary hospitalization, and to explore all possible alternatives to this draconian procedure.

Reversed and remanded.


text:
    Leroy WIENER, Appellant, v. Tito CACACE, Sr., Appellee.
    No. 77-2662.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1978.
    Berkell & Strauss and Wesley A. Lauer, Miami, for appellant.
    Riskin & Dishowitz and Martin R. Dishowitz, Hollywood, for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Huwer v. Huwer, 175 So.2d 242 (Fla.2d DCA 1965); Highlands Lakes, Inc. v. Art Present Real Estate, Inc., 147 So.2d 348 (Fla.3d DCA 1962).


text:
    Michael SWAIN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1614.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1978.

      Michael Swain, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

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

Affirmed.