author: OVERTON, Justice.

text:
    STATE of Florida ex rel. Robert L. SHEVIN, Attorney General, Relator, v. Honorable John S. RAWLS, as Chief Judge, et al., Respondents.
    No. 47308.
    Supreme Court of Florida.
    Jan. 14, 1976.

      Robert L. Shevin, Atty. Gen., and Michael M. Corin and Raymond L. Marky, Asst. Attys. Gen., for relator.
    R. J. Beckham and Carole A. Gardiner of Beckham & McAliley, Miami, for respondents.
   OVERTON, Justice.

This cause is before us on a suggestion for writ of prohibition. We have jurisdiction.

The State asserts that the First District Court of Appeal was without jurisdiction to proceed with the appeal of Bennett Feldman because Feldman prematurely filed his notice of appeal. Feldman was appealing a judgment holding him in direct criminal contempt of court. The State has alleged the notice of appeal was filed prior to the recording of the circuit court’s written, signed judgment, being therefore premature and hence invalid. Feldman contends his notice of appeal was filed subsequent to the judgment.

The true answer to whether the judgment or notice came first is not determinative. Our recent decision in Williams v. State, 324 So.2d 74 (Fla., filed December 3, 1975), controls:

“. . . [A] notice of appeal which is prematurely filed shall not be subject to dismissal. Rather, such a notice of appeal shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered. . . . ”

Accordingly, the writ of prohibition is denied.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD and ENGLAND, JJ., concur.

      . Art. Y, § 3(b) (4), Fla.Const.


source: Caselaw Access Project

license: Public Domain

text:
    Robert Lee MOSLEY, Petitioner, v. SEA TOWER APARTMENTS et al., Respondents.
    No. 45753.
    Supreme Court of Florida.
    Jan. 22, 1975.
    Rehearing Granted Feb. 3, 1976.
    ADKINS, C. J., and ROBERTS, Mc-CAIN and OVERTON, JJ., concur.
   ON REHEARING GRANTED

This cause having heretofore been submitted to the Court on Petition for Writ of Certiorari upon the transcript of record and briefs and argument of counsel for the respective parties, to review the order of the Industrial Relations Commission and the Court finding no departure from the essential requirements of law, it is ordered that said petition be and the same is hereby denied. See: Scholastic Systems, Inc. et al. v. LeLoup et al., 307 So.2d 166 (Fla.1974). It is further ordered that the question of employability may be considered on remand to the Judge of Industrial Claims.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


author: ' HATCHETT, Justice.

text:
    STATE of Florida, Petitioner, v. Donald Roy WELLS, Respondent.
    No. 47028.
    Supreme Court of Florida.
    Jan. 14, 1976.
    Rehearing Denied Feb. 25, 1976.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for petitioner.
    John Paul Howard, Jacksonville, for respondent.
   ' HATCHETT, Justice.

Respondent Wells was arrested on May 15, 1973, during the execution of a search warrant issued earlier the same day, all in connection with the alleged receipt and concealment of certain stolen property. The trial judge granted defense motion to require disclosure of confidential informer by order entered October 15, 1973. At a hearing on November 2, 1973, this colloquy transpired:

THE COURT: ... Let me ask you, at this time do you intend to d[i]vulge the name of the confidential informant ?
MR. EPSTEIN (the prosecutor):
No, Your Honor, it is the position of the state that we are not going to d[i]vulge it.
THE COURT: All right. Charges will be dismissed against Donald Roy Wells.

The prosecution filed notice of appeal on November 9, 1973, “to review the order of the Circuit Court . . . bearing date the 2nd day of November, 1973”, and directed the clerk to include in the record on appeal the “court’s order dismissing the information, dated November 2, 1973.” There is no such written order in the record, although the trial court clerk has certified that the record contains “all . papers ... as appears from the records and files of [his] office that have been directed to be included. . . . ” We are bound to conclude, therefore, that no written order of dismissal was entered.

The District Court of Appeal, First District, upheld the trial court’s dismissal in its decision reported at 308 So.2d 163, and denied petition for rehearing. The attorney general’s office then filed here a petition for writ of certiorari which we granted without oral argument on June 25, 1975, Mr. Justice Overton dissenting. We now dismiss the petition for writ of certiorari as improvidently granted.

No order or judgment of a trial court is appealable until reduced to writing and filed with the trial court clerk. State ex rel. Faircloth v. Cross, 238 So.2d 81 (Fla.1970); Jenkins v. Lyles, 223 So.2d 740 (Fla.1969); State v. Breeze, 300 So.2d 729 (Fla.App., 2d Dist.1974); State v. Law, 297 So.2d 347 (Fla.2d Dist.1974). Treating the papers on which the appeal was taken as a petition for writ of certiorari, the District Court nonetheless lacked jurisdiction in “the absence of a written order”. State v. Simpson, 313 So.2d 470 (Fla.App., 4th Dist.1975). Furthermore, any possibility of review is by now moot, inasmuch as more than two years have elapsed since the respondent was taken into custody and no application for an order extending time for trial was made, as required by Rule 3.-191(d) (2) (iv), RCrP. See Mullin v. State, Fla.App., 307 So.2d 829 cert. denied sub nom. State v. Mullin, Fla., 317 So.2d 761 (1975); State v. Wilson, 305 So.2d 232 (Fla.App., 3d Dist.1974); State v. Williams, 287 So.2d 415 (Fla.App., 2d Dist.1973); Esperti v. State, 276. So.2d 58, 64 (Fla.App., 2d Dist.1973).

The petition for writ of certiorari is dismissed.

ROBERTS and BOYD, JJ., concur.

ADKINS, C. J., and OVERTON and ENGLAND, JJ., concur in result only.

       In Williams v. State, Fla., 324 So.2d 74 (1976), we held that notice of appeal filed by a criminal defendant after judgment and sentence were reduced to writing, but before those documents were filed in the clerk’s office, “shall exist in a state of limbo until the judgment ... is rendered.” Upon rendition of judgment, the notice of appeal becomes efficacious to confer jurisdiction on the appellate court. The Williams holding was justified on the basis that “the petitioner was placed in an untenable position since the judgment conditioned the grant of supersedeas bond upon the filing of the notice of appeal.” Filing of notice of appeal is always a prerequisite for bail pending appeal when there is a criminal conviction, Rule 6.15(a), Florida Appellate Rules, 1962 Revision, and the result in the Williams case evinces an unwillingness to allow a man’s freedom to depend on the fortuity of. when papers happen to be filed in the clerk’s office. Although the decision in Williams v. State, supra, would have been fully supported on just such narrow grounds, expansive obiter dicta indicate that the doctrine there announced may well find broader application. However widely applied, though, the new rule does not reach the present case, because here the order sought to be reviewed has never been reduced to writing.


author: ENGLAND, Justice.

text:
    EMPLOYERS’ FIRE INSURANCE COMPANY, a Foreign Corporation, and Elmer Reilly, Petitioners, v. CONTINENTAL INSURANCE COMPANY, a Foreign Corporation, Respondent.
    No. 45595.
    Supreme Court of Florida.
    Jan. 7, 1976.

      James A. Franklin, Jr., of Henderson, Franklin, Starnes & Holt, Fort Myers, for petitioners.
    Gary E. Garbis of Virgin, Whittle & Slatko, Miami, for respondent.
   ENGLAND, Justice.

This cause is before us on a petition for writ of certiorari to review a decision of the Second District Court of Appeal, reported at 292 So.2d 413, Fla.App., holding that the signed minute book entry of a circuit judge does not constitute a “judgment” for purposes of commencing the statute of limitations. We have jurisdiction under Article V, § 3(b)(3) of the Florida Constitution, based on a direct conflict between the decision below and cases holding that a signed minute book entry does constitute a “judgment” for purposes of commencing the time for an appeal.

This is the seventh lawsuit arising out of an automobile accident which occurred on June S, 1965. The original suit resulted in a $575,000 nonjury verdict on December 12, 1966 for the injured plaintiffs (none of whom are in any way involved in this lawsuit). One of the defendants in that lawsuit, Mary Roughgarden (“Roughgarden”), was insured by the predecessor of respondent here (“Continental”) for two automobiles which were not involved in the accident, but she was not insured for the vehicle involved in the accident. That latter vehicle, which she then owned but which had been used prior to the accident by her son, was insured by him with petitioner here (“Employers”). Four days before the accident Roughgarden’s son had irrevocably relinquished the vehicle to his mother.

Neither Continental nor Employers defended the lawsuit which resulted in the verdict and judgment against Roughgar-den. In March 1967, Roughgarden formally assigned to the plaintiffs in that suit any cause of action which she had against Continental for failure to defend the lawsuit, for failure to settle prior to trial, and for failure to pay the judgment against her. On December 11, 1970, Continental paid those plaintiffs $87,500 in discharge of the judgment against Roughgarden.

On November 8, 1972, Continental brought suit against Employers in the proceeding which is now before us for review, alleging that Continental was only an “excess” carrier and that Employers had been primarily responsible to defend the litigation against Roughgarden. The suit alternatively alleged breach of contract, indemnification and contribution against Employers. The trial judge entered summary judgment for Employers on the ground that the five year statute of limitations began to run on December 12, 1966, the date of the trial court’s signed minute book entry, and that it had expired when this suit was commenced. The Second District Court of Appeal reversed, holding that the statute began to run on November 8, 1967, when the document of Final Judgment was signed by the trial judge and recorded.

The full text of the relevant minute book entry signed by the trial judge at the conclusion of trial on December 12, 1966 reads as follows:

“The Court pronounced the following Verdicts:
******
VIRDICT [sic]
This cause coming on before the Court to be heard upon summary judgments as to the liability of the defendants (the defendant Elmer Riley having been heretofore discharged as defendant in this cause) and the Court sitting as a trier of the fact and having heard the testimony and studied the exhibits exhibited in this cause, and the Court having retired and considered its verdict, the Court does find for the plaintiff ROBERT REA-HARD and against the defendants JAMES H. McCONNELL, as Administrator of the Estate of JACK WILLIAMS, Deceased, and MARY ROUGH GARDEN, and assesses the Plaintiff’s damages at $575,000.00.
This is the verdict of the court.
Dated this 12th day of December, 1966.
HAROLD S. SMITH, Circuit Judge.
Court recessed.
Court reopened on its own motion and found and rendered Judgment on the Verdicts.
The Court ordered Plaintiff’s Exhibits Nos. 14, 15 and 16 returned to the Plaintiff.
Court recessed.
ATTEST: s/ Margaret T. Scott Clerk
s/ Harold S. Smith
Circuit Judge”

The formal judgment document which was signed eleven months later quoted in full the minute book verdict. Additionally, it contained captions with the style and heading of the case, bore the label “Final Judgment”, formally ordered the entry of final judgment for plaintiff against the defendants for $575,000, and added the phrases “for which sum let execution issue. Costs to be hereafter taxed.”

Our review was requested to' resolve whether the statute of limitations against Continental began to run on December 12, 1966, in which case Continental is barred from recovery, or on November 8, 1967, in which case it is not. We hold that the statute of limitations does not bar Continental’s recovery for indemnification or for contribution (if provable), but that it does prevent recovery for breach of contract.

The minute book entry and the Final Judgment document contain the identical information pertinent to the outcome of this money lawsuit, including who won, who lost, and how much was awarded. Because all judicial labor in determining liability and damages was completed when the minute book entry was written, signed, attested, and assigned a book and page number by the clerk, Employers contends that Roughgarden’s liability was fixed, specific and enforceable for purposes of the statute of limitations as of that earlier date. Continental, on the other hand, contends that the “judgment” portion of the minute book entry is incomplete in material particulars (who and how much), that reliance on a formal document of “Final Judgment” is common practice in Florida, and that reliance on the signed minute book entries of the circuit courts would create confusion and uncertainty because of the variant practices of Florida’s 263 circuit judges. Neither party has called to our attention any case law fixing the starting date of a judgment for purposes of a statute of limitations. Both parties argue from decisions fixing- the time for commencement of an appeal.

Our analysis of the pleadings and contentions of the parties, of applicable Florida law, persuades us that the separate bases for Continental’s lawsuit cannot be treated identically. Continental’s attempt to recover from Employers on the legal theories of contribution and indemnification is not barred by the statute of limitations, as these causes of action only arise from the contributor's or indemnitor’s payment (or other satisfaction) on the judgment or debt. The date of payment in this case was December 11, 1970, so that the statute would not act as a bar.

Continental’s cause of action for breach of contract, however, began to 'run when judgment was entered against the defendant Roughgarden. The date of that event necessitates a determination of the date of “judgment”, which is either the signed minute book entry or the formal judgment document. In approaching that issue, we take judicial notice of the wide disparity in the practices of our trial courts as to the time, manner and completeness of minute book entries. The inevitable variations in the way judges complete court minutes suggest that these entries would generally be an unreliable guide by which to measure either appellate or limitations time. On the other hand, we recognize that there is an arbitrary aspect to a measuring event which depends upon the willingness of trial counsel to supply a form called “final judgment” to the trial judge. Weighing one difficulty against the other, it appears to us that a distinction should be drawn between the time for commencing an appeal and the time for commencing a statute of limitations on a money judgment.

With respect to an appeal, the arbitrary delay between a determination of liability and the signing of a judgment document is not a significant cause for concern. The rendition of an adverse money judgment in a lawsuit, and the desire to suspend the effect of the loss as promptly as possible, provide sufficient incentives for counsel to prepare and submit the necessary paper work to end the trial court’s labor and lay the predicate for appellate review. Equally important is the fact that a trial court’s decision is more clearly articulated, and therefore more reviewable, in a final judgment document than in a minute book notation. For these reasons, the time for taking an appeal should be governed by the rendition of a formal document of judgment by the trial judge, pursuant to Fla.App. Rule 1.3, rather than by the signed entry in a minute book.

With respect to limitations, however, a different set of considerations apply. Statutes of limitations are enacted to bar claims which have been dormant for a number of years and which have not been enforced by persons entitled to enforcement. To allow that time period to be expanded by the interval between a final adjudication of liability containing all the information necessary to establish the enforceable right, and the court’s execution of a formal piece of paper called final judgment, would be to extend the statutes unnecessarily by nonuniform lengths of time. For these reasons, we hold that the time period for measuring a statute of limitations commences at the time a litigant’s liabilities or rights have been finally and fully adjudicated. In general this will mean when the presiding judge or clerk records judgment for one party against the other in a specified amount after either a •jury or nonjury trial. In these cases neither the signing of a minute book nor the signing of a document of final judgment are relevant to the liability of one party to the other for a specified amount. The fact of liability can be established for purposes of a limitations defense irrespective of the date on which the minute book entry or the judgment document is signed.

The decision below is reversed for further proceedings consistent with this opinion.

ADKINS, C. J., ROBERTS and OVER-TON, JJ., and CHAPPELL, Circuit Judge, concur.

      . Bull v. Roy, 191 So.2d 285, 286 (2d Dist.Ct. App.Fla.1966); Trombley v. Jennings, 189 So.2d 516, 517 (2d Dist.Ct.App.Fla.1966); City of St. Petersburg v. Ferguson, 193 So.2d 648, 650 (2d Dist.Ct.App.Fla.1967); Scaglione v. Best, 196 So.2d 22 (2d Dist.Ct.App.Fla.1967).

      . The parties and the courts below have at all times considered that section 95.11(3), Fla. Stat., the five year statute of limitations, controls this litigation. That time span limits actions “upon any contract, obligation or liability founded upon an instrument of writing not under seal.” After oral argument, we asked the parties to brief the applicability of the 20-year statute of limitations on “judgments”. Based on those briefs and our conclusions on the merits of this case, we conclude that the 20-year statute of limitations has no application to this case.

      . Under Florida Appellate Rule 1.3, a judgment is rendered when it is reduced to writing, signed and made a matter of record. The parties argue from decisions construing “rendition” for purposes of commencing an appeal.

      . Lopez v. Lopez, 90 So.2d 456 (Fla.1956) (contribution); Mims Crane Serv., Inc. v. Insley Mfg. Corp., 226 So.2d 836 (2d Dist.Ct.App.Fla.1969) (indemnity for loss or damage). See also Mack Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co., 372 F.2d 18 (3d Cir. 1966); Chicago, Rock Island & Pac. Ry. v. United States, 220 F.2d 939 (7th Cir. 1955). We are not here concerned, as was the court in Mims, with the doctrine of acceleration in third party practice under Fla.R.Civ.P. 1.170(g) and 1.180.

      . The same result- obtains if Continental’s claims are characterized as subrogation, “where the party invoking it has been required to pay a debt for which another is primarily answerable. . . . ” Ulery v. Asphalt Paving, Inc., 119 So.2d 432, 436 (1st Dist.Ct.App.Fla.1960). We need not consider an alternative contention under these legal theories that the three or four year statute of limitations would apply, since the lawsuit was commenced approximately 23 months after Continental’s payment to the injured plaintiffs.

      . Continental Casualty Co. v. Florida Power & Light Co., 222 So.2d 58 (3d Dist.Ct.App.Fla.1969).

      . We recognize that it is impossible to conduct trial court proceedings five, six or seven days a week and uniformly complete minute book entries at the end of each day. On some days, the judge will simply not be available to sign a minute book even if it is completed by the clerk. On other days, he may inadvertently fail to sign the minute book although the opportunity exists. In some trial courts, the entries for an entire week are signed at one time on Friday afternoon.

      . We can foresee, for example, a whole range of legal problems arising from signings on a day subsequent to the day of the actual activity recorded, and from the completeness of the information contained in minute book recitations.

      . In this ease, for example, approximately 11 months elapsed after all nonministerial, judicial labor in the litigation had ended. In the preponderance of trial cases, attorneys, on their own or by request, submit the judgment document.

      . This result is consistent with Schwenek v. Jacobs, 160 Fla. 352, 33 So.2d 592 (1948), holding that the time for appeal relates to the legal effect of a judgment as tested by the lower court's loss of jurisdiction over the lawsuit. The eases set forth in footnote 1 are overruled. Our previous decision that an unsigned minute book entry cannot be appealed, State ex rel. Herring v. Allen, 189 So.2d 363 (Fla.1966), affirming Egantoff v. Herring, 177 So.2d 260 (2d Dist.Ct.App.Fla.1965), and its progeny are now moot. The application of this decision with respect to the time for taking appeals shall be prospective only, and it shall not affect appeals pending on the date this decision becomes final.

      . We recognize that the losing litigant could submit a document of final judgment for court entry immediately after the adjudication of his liability, and thereby commence the statute of limitations. It would be rare indeed, however, for the losing party in a lawsuit to contemplate the statute of limitations immediately following a judicial determination that he is liable to another in some monetary amount. It is more likely that such a litigant would have little interest in returning to the court (for any reason) or incurring additional legal fees for the preparation of an order.

      . When post-trial motions are made on a day subsequent to the entry of a jury’s verdict, the presiding judge will ordinarily defer judgment on the verdict until these matters have been resolved.

      . For this purpose, the verdict and judgment portions of the minute book may be viewed together for completeness. In this case, for example, all the necessary information is readily available in the minute book under the caption of the case on the date in question, even though some portions appear under the label “verdict” and others are called “judgment”. We agree with the district court below that the traditional final phrases put in Final Judgments, authorizing the issuance of enforcement processes or writs, are without legal significance to the commencement of a statute of limitations.

      . Our opinion relates only to money civil suits. We express no opinion on the commencement of statutes of limitations in criminal or nonmonetary civil matters.


text:
    CRAIN & CROUSE, INC., et al., Petitioners, v. PALM BAY TOWERS CORPORATION, Respondent.
    No. 46730.
    Supreme Court of Florida.
    Jan. 7, 1976.
    For District Court of Appeal on remand see 326 So.2d 442.
    Knight, Peters, Hoeveler, Pickle, Nie-moeller & Flynn, Miami, and Richard H. W. Maloy and Associates, P. A. and Richard J. Burton, Coral Gables, for petitioners.
    Richard A. Katz, of Katz & Rosen, Coconut Grove, for respondent.
   ENGLAND, Justice.

By petition for a writ of certiorari, we are requested to review a decision of the Third District Court of Appeal reported at 303 So.2d 380. Our jurisdiction is invoked on the basis of direct conflict between the district court’s decision and that in Exchange Bank v. Florida Nat’l Bank, 292 So.2d 361 (Fla.1974), as well as other cases.

Petitioner suggests that the district court below substituted its judgment as to factual matters for the findings made at trial by the trier of fact. Exchange Bank, and the other cases cited for conflict, stand for the fundamental proposition that an appellate court is not free to substitute its judgment for the trier of fact, or to weigh evidence and reach a different conclusion from that reached at trial. The decision below indicates on its face that, by aggregating sufficient facts from the record to establish the negligence of Crain & Crouse, the district court reweighed the evidence and substituted its judgment for that of the trial judge.

The decision below is in conflict with Exchange Bank and must be quashed. The district court is directed to reinstate the judgment of the trial court as to the negligence of Crain & Crouse.

ADKINS, C. J., and OVERTON, SUNDBERG and HATCHETT, JJ., concur.

      . In this case, the trial judge sat as the trier of facts.

      . “Our departure in reasoning from the trial court travels upon the latter’s conclusion that the engineers’ activity in the supervision and inspection of the jobsite construction for possible deficiencies in the redesign did not amount to a neglect of its professional responsibility to the owner. We think the owner has sufficiently proven negligence, entitling it to recover damages, if any.” 303 So.2d at 384.


author: ROBERTS, Justice.

text:
    DADE COUNTY, a political subdivision of the State of Florida, Petitioner, v. MARCA, S. A., a Panama Corporation, Respondent.
    No. 46769.
    Supreme Court of Florida.
    Jan. 21, 1976.
    Stuart Simon, Dade County Atty., and Stanley B. Price, Asst. County Atty., for petitioner.
    John G. Fletcher, Coconut Grove, for respondent.
   ROBERTS, Justice.

This cause is before us on certiorari granted to review the decision of the District Court of Appeal, Third District, reported at 304 So.2d 461 (Fla.App.3, 1974), which purportedly conflicts with DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957), Bloomfield v. Mayo, 119 So.2d 417 (Fla.App.1960), Dade County v. Carmichael, 165 So.2d 227 (Fla.App.1964), and Metropolitan Dade County v. Jennings Construction Co., 196 So.2d 33 (Fla.App.1967). We have jurisdiction pursuant to Article V, Section 3(b)(3), Constitution of Florida.

The factual situation and questions of law appear in the decision of the District Court of Appeal under review and for the sake of brevity will not be repeated here.

The question posited by petitioner is whether the District Court erred in reversing the order of the Circuit Court refusing to allow the supplementation of the record before it in a certiorari proceeding brought to review action of Dade County Commission denying respondent’s request to rezone certain properties located in Dade County. Respondent requested that the Circuit Court supplement the record of the proceedings on certiorari to reflect actions of the County Commission in re-zoning another tract subsequent to its denial of respondent’s request. The petition for writ of certiorari was ultimately denied by the Circuit Court, the merits of which denial the District Court did not reach in its decision sub judice.

Although recognizing the general rule as enunciated by the above cited cases to be that a proceeding in certiorari contemplates that the reviewing court’s consideration shall be confined strictly and solely to the record of the proceedings conducted by the administrative agency on which its questioned order is based, the District Court of Appeal reversed the order of the Circuit Court refusing supplementation of the record and held that the Circuit Court has the authority and should have included the supplemental evidence in the record in order to have a thorough understanding of the situation before it.

Petitioner posits and we agree that the proceeding to review the zoning decision of the Board of County Commissioners contemplates that the Circuit Court’s determination be confined to the record of the proceedings conducted before the County Commissioners. We do not find justification in this' cause to warrant deviation from the well established rule applicable to this certiorari proceeding that the reviewing court’s consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based. Cf. Dade County v. Carmichael, supra. Section 33-316 prescribes the method for review of a decision of the Board of County Commissioners relating to zoning matters to be the filing of a petition for writ of certiorari in the Circuit Court in and for Dade County.

In DeGroot v. Sheffield, supra, this Court explained:

“In certiorari the reviewing court will not undertake to re-weigh or evaluate the evidence presented before the tribunal or agency whose order is under examination. The appellate court merely examines the record made below to determine whether the lower tribunal had before it competent substantial evidence to support its findings and judgment which also must accord with the essential requirements of the law. It is clear that certiorari is in the nature of an appellate process.”

Dade County, in the case of Dade County v. Carmichael, supra, sought review of a final order of the Circuit Court granting the petitioners’ application for certiorari and ordering a re-zoning. Therein, upon certiorari review to the Circuit Court of the order of denial by the Dade County Board of County Commissioners, the Circuit Court permitted the appointment of a referee and the taking of additional testimony which evidence dehors the transmitted record of the proceedings below, constituted the basis for the Circuit Court’s reversal of the Commission, and order that the county re-zone. Appellant’s meritorious point on appeal related the proposition that in certiorari proceedings to review a zoning decision, additional testimony outside the record of the proceedings below cannot be received by the court. The appellate court agreed and reversed and remanded to the trial court for a determination based upon consideration only of the record of the proceedings before the Zoning Appeals Board and the County Commission. As this Court stated in City of Pensacola v. Maxwell, 49 So.2d 527 (Fla.1950),

“The province of a court in the review of proceedings brought before it by writ of certiorari is well defined: The court may inquire into the jurisdiction of the administrative body whose order is challenged. It may inspect the record of the proceedings before the administrative body to ascertain whether that body has proceeded in accordance with the authority conferred upon it by controlling law. It may examine the record to determine whether there is substantial evidence to justify the finding of the administrative body. If may not re-weigh the evidence for the purpose of determining where the preponderance lies, nor substitute its judgment as to the credibility of witnesses for that of the body charged with the duty of determining the facts.”

Cf. Osceola Fruit Distributors v. Mayo, 115 So.2d 760 (Fla.App.2, 1959). In Bloomfield v. Mayo, supra, this Court opined:

“That decision leads to the inescapable conclusion that the type of certiorari to review administrative orders contemplated by Rule 4.1 is common law certiorari in which the scope of review is narrowly limited to a determination of whether the administrative agency acted without or in excess of its jurisdiction, or whether it departed from essential requirements of law in entering the order sought to be reviewed. It is settled in this state that common law certiorari is limited only to review of judicial or quasi-judicial orders of administrative boards, bodies or officers.”

Accordingly, having determined no justification for a deviation from the traditional nature of certiorari proceedings to exist sub judice, we hereby quash the decision of the District Court and remand the cause for further proceedings consistent herewith and for disposition of any other questions which were brought before that court for review.

It is so ordered.

ADKINS, C. J., and ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


text:
    Luther R. ROGERS, Superintendent of the Brevard County Public School System and the School Board of Brevard County, Florida, Appellants, v. Leah JOHNSON, Appellee.
    No. 46398.
    Supreme Court of Florida.
    Jan. 21, 1976.
    William C. Walker, Jr., Titusville, for appellants.
    Richard H. Frank, John J. Chamblee, Jr., and Stanley E. Marable of the Law Offices of Richard H. Frank, Tampa, for appellee.
    Charles E. Miner, Jr., and John D. Carlson, Tallahassee, for Florida State Board of Education, amicus curiae.
   ROBERTS, Justice.

We here review by certiorari an interlocutory order passing upon the constitutionality of a state statute.

Suit was instituted below for the purpose of regaining a teaching position and compensation of the plaintiff, respondent herein. An examination of the file in this cause reveals, and the parties concede, that the teacher is back in her position and payment of her back salary has been made. To that end and for that purpose, the mission of the suit has been accomplished and the cause should be dismissed because the controversy is moot. In such posture, it is not necessary to pass upon the constitutionality vel non of the statute in question either in the interlocutory order or any final decree.

We, therefore, remand the cause to the trial court with directions to expunge the interlocutory order sub judice and dismiss the cause.

It is so ordered.

ADKINS, C. J., and BOYD, OVER-TON, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

      . The cause reached us in the form of an interlocutory appeal, but the appropriate remedy because of the interlocutory nature of the order is a petition for writ of certiorari. Burnsed v. Seaboard Coastline Railroad Company, 290 So.2d 13 (Fla.1974), Article V, Section 3(b)(3), Constitution of Florida.


author: PER CURIAM.

text:
    Lyman BRUTON, Appellant, v. STATE of Florida, Appellee.
    No. 74-1503.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1975.
    Richard L. Jorandby, Public Defender, and Elliot R. Brooks, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant-defendant, Lyman Bruton, was charged by information with, in count one, attempted breaking and entering of an automobile with intent to commit larceny and, in count two possession of burglary tools. At the conclusion of the trial, the jury returned a verdict finding the defendant guilty of both counts as charged. The defendant was adjudged guilty and sentenced to one year in county jail on the first count and three years in state prison on the second count, the sentences to run concurrently.

We have examined the points on appeal raised by the defendant and find them to be without merit. However, the court, sua sponte, notes that each of the two counts in the information filed against the defendant involved a facet or phase of the same criminal transaction. In such a case, only one sentence may be imposed and that sentence should be imposed for the higher offense. Foster v. State, 286 So.2d 549 (Fla.1973); Kirkland v. State, 299 So.2d 54 (Fla.App.1974); Wyche v. State, 178 So.2d 875 (Fla.App.1965).

Accordingly, the sentence on Count I of the information is vacated and set aside. The judgment and sentence on Count II of the information is affirmed.

Affirmed as modified.

WALDEN, CROSS and MAGER, JJ., concur.


author: SMITH, Judge.

text:
    STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF PERSONNEL, Petitioner, v. STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF ADMINISTRATIVE HEARINGS and Patricia B. Harvey, Respondents.
    No. Y-256.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
    Rehearing Denied Feb. 25, 1976.

      David V. Kerns and Bishop C. Holifield, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., James D. Whisenand and Donald D. Conn, Asst. At-tys. Gen., Ronald L. Baker and Edward L. Harvey, Tallahassee, for respondents.
   SMITH, Judge.

This petition for review of a procedural ruling by a hearing officer of the Division of Administrative Hearings, Department of Administration, raises basic questions concerning the scope of discovery allowable in proceedings for an administrative determination of the validity of an agency rule. We have entertained the appeal notwithstanding that our review has interrupted and delayed the proceedings in midstream because review of the final agency action would not provide an adequate remedy to the petitioning Division of Personnel, Department of Administration. Sec. 120.68(1), F.S.1973 (1974 Supp.).

Respondent Harvey, whom the Division of Personnel declared ineligible for the positions of Administrative Assistant I and Information Specialist II in the Career Service System, ch. 110, F.S.1973, petitioned the Division of Administrative Hearings for an administrative determination that the application of work experience requirements promulgated by rule for the two positions discriminates against women on the basis of sex and that Rule 22A-5.04A.7., Personnel Rules and Regulations of the Career Service System, violates the Fourteenth Amendment to the United States Constitution by authorizing removal of a name from the classification register without a hearing.

At issue on this appeal is the propriety of the hearing officer’s order overruling objections by Division of Personnel to extensive requests for admissions and interrogatories propounded by respondent Harvey. Sec. 120.58(1) (b), F.S.1973 (1974 Supp.) provides that in “agency proceedings for a rule or order”

“. . .a hearing officer has the power to . . . effect discovery on the written request of any party by any means available to the courts and in the manner provided in the Florida rules of civil procedure.”

An administrative determination and declaration of the validity or invalidity of a rule on grounds specified in § 120.56(2) is an “order” as that term is defined in the Administrative Procedure Act, § 120.52(8). Such a proceeding is therefore among those for which § 120.58(1) contemplates discovery in appropriate cases, as provided in the Florida Rules of Civil Procedure.

Yet it does not follow that a hearing officer named by the Division of Administrative Hearings to determine disputes cognizable under the Administrative Procedure Act is empowered to authorize the exhaustive discovery procedures that often attend judicial inquiry into constitutional questions formulated in Fourteenth Amendment terms of equal protection of the laws and due process of law. Neither the Division of Administration nor its hearing officer has power to declare a rule of the Division of Personnel unconstitutional on those grounds. Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260 (Fla.1973); Otto v. Harllee, 119 Fla. 266, 161 So. 402 (1935); State ex rel. Watson v. Caldwell, 156 Fla. 618, 23 So.2d 855 (1945), 157 Fla. 70, 24 So.2d 797 (1946); Art. II, Sec. 3, Fla.Const.; § 20.-02(1), F.S.1973.

The request for admissions and interrogatories propounded by respondent Harvey fall into three general categories: those which are calculated to establish or discover facts pertaining to the constitutional questions raised in Harvey’s petition; those which are calculated to establish or discover facts demonstrating that respondent Harvey is “substantially affected” by the rules which she seeks to invalidate [§ 120.56(2), F.S.1973 (1974 Supp.)]; and those which seek to establish or discover facts pertaining to the manner in which the Division of Personnel promulgated the rules in question and applied them to persons other than respondent Harvey. Discovery in the first area mentioned is improper and should have been foreclosed by the hearing examiner because the administrative process cannot resolve a Fourteenth Amendment attack on the rules in question. Discovery in the second area is proper if the petitioner Division of Personnel seriously contests that the challenged rules were applied detrimentally to respondent Harvey and so substantially affected her interests. Discovery in the third area mentioned is proper, subject to reasonable restraints against burdensome and repetitious inquiry, in administrative proceedings to determine whether the rules under attack were formulated in violation of the authority delegated to the Division of Personnel by the legislature.

We leave to the hearing examiner the application of these general standards to particular requests for admissions and interrogatories now pending.- The case will be remanded for further proceedings consistent with this opinion.

Remanded with directions.

RAWLS, Acting C. J., and MILLS, J., concur.


author: SCHEB, Judge.

text:
    Harry SMITH, Jr., Appellant, v. CONTINENTAL INSURANCE COMPANY et al., Appellees.
    No. 75-329.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
    Rehearing Denied Feb. 27, 1976.

      Mulholland & Hapner and Gordon & Maney, Tampa, for appellant.
    Michael N. Brown of Allen, Dell, Frank • & Trinkle, Tampa, for appellees.
   SCHEB, Judge.

The trial court entered a summary final judgment in favor of the appellees/defend-ants, finding the appellant/plaintiff’s cause of action based on negligence and implied warranty to be barred by the applicable statutes of limitation. We reverse.

The appellant/plaintiff Harry Smith, Jr. sued various defendants to recover for personal injuries, joining the appellees Kov-ens, and their insurer as additional defendants on March 22, 1973. Plaintiff Smith alleged that he was an invitee at Causeway Inn in Hillsborough County on April 29, 1969, and that while still in the dining room talking with a friend at the conclusion of dinner, he was struck and injured by a chandelier which fell from the ceiling. The fact that the appellees Kovens, as building contractors, completed the building no later than 1961 is undisputed.

The effect of the trial court’s ruling was to hold: (a) the statute of limitations commenced running at the time of alleged negligence by the defendant builders and not from the time of the plaintiff’s injury; and (b) the plaintiff’s cause of action on the theory of implied warranty was barred since it was brought more than three years after the statute started running.

This appeal, therefore, presents two questions. First, when the statute of limitations starts running in an action to recover for personal injuries when based on either negligence or implied warranty; and second, the limitations period applicable for suit on theory of implied warranty against a building contractor by a plaintiff not in privity with the contractor.

A statute of limitations starts running when there has been notice of invasion of the legal rights of the plaintiff, i. e., when he has been put on notice of his right of action. This long has been held to be the law in actions based on negligence. See City of Miami v. Brooks, Fla.1954, 70 So.2d 306; Seaboard Air Line RR. Co. v. Ford, Fla.1957, 92 So.2d 160; Foley v. Morris, Fla.App.2d 1976, 325 So.2d 35. Likewise, where' an action is based on breach of implied warranty in products liability cases, it is generally held the statute starts running from the time the buyer first discovers or reasonably should discover the defect and not from the date of purchase. Creviston v. General Motors Corp., Fla.1969, 225 So.2d 331. The same reasoning should apply here since a plaintiff invitee who is not in privity with the contractor would not be on notice of any right of action until he has been injured. Obviously, in this case that time was when the plaintiff was struck by a falling chandelier. See Vilord v. Jenkins, Fla.App.2d 1969, 226 So.2d 245. Appellees’ reliance on 2765 South Bayshore Drive Corp. v. Fred Flowland, Inc., Fla.App.3d 1968, 212 So.2d 911, and Cowan v. Turchin, Fla.App.4th 1972, 270 So.2d 449, is misplac'ed for unlike the case at bar, these cases involved actions by one contracting party against another where the injured party had an opportunity for inspection prior to acceptance of the completed building or equipment. Therefore, we must reverse the trial court’s dismissal of the negligence count.

In Barfield v. U.S. Rubber Co., Fla.App.2d 1970, 234 So.2d 374, we rejected the contention that a consumer’s action against a manufacturer based on an implied warranty is governed by the three year statute of limitations which relates to contract actions not founded on instruments in writing. In Barfield this court expressly receded from any suggestion in its prior opinion in Creviston v. General Motors Corp., Fla.App.2d 1968, 210 So.2d 755, rev’d. on other grounds, 225 So.2d 331, that a suit based on implied warranty by an ultimate consumer against a manufacturer is based on contract, and held that such a breach of implied warranty is governed by the four year “catch all” statute of limitations. In Lauck v. General Telephone Co., Fla.App.2d 1974, 300 So.2d 759, we commented further that assuming an implied warranty attached to the furnishing of a service, Barfield would seem to make the four year statute of limitations period applicable to such a cause of action.

We conclude that an action recovery for personal injuries against a building contractor based on a theory of implied warranty by a plaintiff not in privity with the contractor does not fall within the three year limitations period of Fla.Stat. § 95.11(5) (e) (1973), which governs an action upon a contract, obligation or liability not founded upon an instrument in writing. Rather, it is governed by the four year limitations period prescribed by Fla.Stat. § 95.11(4) (1973), which controls actions for relief not otherwise specifically provided for in Fla.Stat. Ch. 95 (1973).

In view of the foregoing, we reverse and remand to the trial court for further proceedings consistent with this opinion.

Reversed.

McNULTY, C. J., and BOARDMAN, J., concur.

      . It is questionable whether or not an injured party not in privity with a building contractor has a cause of action on the theory of implied warranty. Since the summary judgment below was entered on basis that the plaintiff’s cause of action was barred by aj>plicable statute of limitations, that question is not before the court and we express no opinion thereon. . ' -


author: DOWNEY, Judge.

text:
    Margaret TRUMPE, etc., et al., Appellants, v. CITY OF CORAL SPRINGS, a Municipal Corporation of the State of Florida, Appellee.
    No. 74-840.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.
    Henry J. Prominski, of Tucker & Prom-inski, Pompano Beach, for appellants.
    Diane D. Hathaway of Druck, Grimmett, Norman & Weaver, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

It appears from appellants’ second amended complaint that appellants’ decedent, Astrid Kissell, drove her car north on Coral Ridge Drive in the City of Coral Springs during hours of darkness. Coral Ridge Drive dead ends into Wiles Road which runs east and west. There is a deep canal on the north side of Wiles Road running parallel to it. On the evening in question Mrs. Kissell drove her car across the intersection into said canal and drowned. The aforesaid complaint alleged that the intersection in question was a dangerous one requiring the appellee to warn motorists using Coral Ridge Drive that the road ended abruptly and that there was a canal just beyond the terminus of that road. Finally, it alleged that the appellee breached its duty to warn of such dangerous condition.

To the second amended complaint appellee directed a motion for judgment on the pleadings on the ground of governmental immunity. The trial court granted said motion and entered final judgment for ap-pellee, stating that there was no duty existing between appellee and appellants’ decedent and that the appellee was protected by governmental immunity. We reverse because we do not think that the trial court’s conclusions apply to this case. See Gordon v. City of West Palm Beach, Fla.App., 321 So.2d 78, opinion filed October 10, 1975, wherein this court recognized that the construction, maintenance, and repair of city streets is a proprietary as opposed to a governmental function and concluded that a municipality’s liability for negligence in the exercise of proprietary functions was in no way affected by the Supreme Court’s decision in Hargrove v. Town of Cocoa Beach, Fla.1957, 96 So.2d 130, or Modlin v. City of Miami Beach, Fla.1967, 201 So.2d 70.

In addition, we note that it has long been held that a municipality has a duty to persons using its streets to keep those streets in a reasonably safe condition and to warn persons using its streets of known dangerous conditions. Town pf Palm Beach v. Hovey, 115 Fla. 644, 155 So. 808 (1934); City of Hialeah v. Revels, Fla.App.1960, 123 So.2d 400. The Revels case involved a factual setting very similar to that described here. The city was held liable in that case for failure to warn motorists of the presence of a canal abutting a T intersection. See also Christenson v. Village of Hibbing, 219 Minn. 141, 16 N.W.2d 881 (1944).

Since a voluntary dismissal was taken as to the defendant Sunshine Drainage District, Count II is no longer a part of the second amended complaint. However, 'said count contains allegations of ultimate fact which should be contained in Count I to state a good cause of action against the city. Accordingly, we feel the justice of the cause requires that on remand appellants be given a further opportunity to amend their complaint. Baird v. Continental Insurance Company, Fla.App.1970, 237 So.2d 206.

Reversed and remanded.

WALDEN, C. J., and SILVERTOOTH, LYNN N., Associate Judge, concur.


text:
    John Joseph EMBRY, Appellant, v. STATE of Florida, Appellee.
    No. 73-1259.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.
    Donald J. Beuttenmuller, Jr., of Anderson, Letts & Beuttenmuller, Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This cause was remanded to this Court “ * * * for disposition of any other questions which were brought to that court for review”, State v. Embry, 322 So.2d 515 (Fla.1975). There is only one issue that remains untreated:

“I. Whether the challenged search can be justified as incident to a lawful arrest or as being based upon a probable cause.”

Upon consideration of this issue, it is our opinion that the search was legal and proper and that no error has been demonstrated.

Affirmed.

WALDEN, C. J., and OWEN and CROSS, JJ., concur.


text:
    Matthew FALSTREAU, Appellant, v. STATE of Florida, Appellee.
    No. 74-871.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.
    Richard L. Jorandby, Public Defender, and Elliot R. Brooks and Craig Barnard, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant-defendant, Matthew Falstreau, was charged by indictment, in count one, with breaking and entering of a dwelling house with the intent to commit a felony, to-wit: rape, and in count two, with rape. Trial was by jury. At the conclusion of the evidence, the trial court instructed the jury with reference to count two of the indictment that they, the jury, could find the appellant guilty of aggravated assault, if the evidence so warranted, as such crime was a lesser included offense of the crime of rape. No objection to this instruction was made by appellant either at the time the instruction was given or any time thereafter. The jury returned its verdict finding appellant guilty of breaking and entering of a dwelling house with the intent to commit a felony, to-wit: rape, as alleged in count one of the indictment and aggravated assault as a lesser included offense of rape as alleged in count two of the indictment. The trial court then adjudged defendant guilty and sentenced him to a term of years in the state prison under count one of the indictment.

Defendant was also adjudged guilty under count two of the indictment. Imposition of sentence, however, was withheld under count two with the defendant placed on probation for a term of years. This appeal then followed.

Appellant now contends that it was fundamental error for the trial court to adjudge him guilty of aggravated assault under count two of the indictment. We agree.

Upon proper proof a defendant may be convicted of the crime with which he was charged in the accusatory pleading. Rules 3.490 and 3.510 Fla.RCrP (1975) further provide that a defendant under a criminal charge may be convicted of any crime which is (1) a lesser degree of the crime charged, (2) an attempt to commit the crime charged, (3) necessarily included in the crime charged, or (4) included within the allegations of the accusatory pleading and shown by the proofs. A conviction of a crime with which the defendant was not charged and which does not fall within one of the four categories suggested by the abovementioned rules has been held to be fundamental error. Haley v. State, 315 So.2d 525 (Fla.App.1975); O’Neal v. State, 308 So.2d 569 (Fla.App.1975); Causey v. State, 307 So.2d 197 (Fla.App.1975); Priester v. State, 294 So.2d 421 (Fla.App.1974); Johnson v. State, 226 So.2d 884 (Fla.App.1969).

Count two of the indictment in the instant case alleged that the defendant “. . . did unlawfully ravish and carnally know [the victim], a person of the age of more than eleven (11) years, by force and against her will in violation of Florida Statute 794.01.” The crime for which the defendant was convicted was aggravated assault, i. e., assault with a deadly weapon. Clearly the crime of aggravated assault does not fall within the first three categories suggested by Rules 3.490 and 3.-510, Fla.RCrP. With reference to the fourth category, an examination of the indictment as set forth above reveals that the elements of aggravated assault are not alleged therein. Therefore, we conclude that the trial court erred in adjudging the defendant guilty of aggravated assault and entering the order of probation under count two of the indictment.

As to the judgment and imposition of sentence under count one of the indictment, no error has been demonstrated.

Accordingly, the judgment and sentence entered under count one of the indictment is affirmed.

The order of probation entered under count two of the indictment is vacated and set aside, and the cause remanded to the trial court with directions to discharge the defendant from count two of the indictment.

CROSS and DOWNEY, JJ., and SCHULZ, GEORGE E., Associate Judge, concur.


author: PER CURIAM. WALDEN, Chief Judge

text:
    Andre Rizzuto BURNS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1338.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.
    Richard L. Jorandby, Public Defender, and Elliot R. Brooks, Asst. Public Defender, and Craig Barnard, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and OWEN, JJ., concur.

WALDEN, C. J., dissents, with opinion.

WALDEN, Chief Judge

(dissenting):

I would reverse and remand for a new trial on the basis that appellant’s first point is meritorious, it being:

Whether the trial court erred in admitting testimony of a prior collateral offense to prove identity when identity was no longer an issue, when the prior offense took place more than eight months before the instant offense, and when the only similarity between the two offenses was the alleged victim ?

Agreeing that identity was an issue, it is my view that there is yet another critical criteria that was not met here — the two crimes were not similar. I would reverse upon authority of Clingan v. State, 317 So.2d 863 (Fla.App. 2nd, 1975); Marion v. State, 283 So.2d 53 (Fla.App. 4th, 1973).


author: OWEN, Judge.

text:
    Johnny Ray DOWIS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1526.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.

      William M. Cobb of Sullivan & Cobb, Vero Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellant was charged with and convicted of breaking and entering a dwelling house with intent to commit a misdemean- or, to wit: assault and battery.

When read from the cold record, the State’s evidence as to identification of appellant as the culprit can only be described as incredible. Nonetheless, if believed by the jury (as it obviously was) it was legally sufficient to establish the identity of appellant as the culprit, and thus there was no error in denying the motion for judgment of acquittal on this ground. Neither was there error, as raised by appellant’s second point, in refusing to instruct the jury on the penalties for the various crimes for which appellant could have been convicted under the Information. Johnson v. State, 308 So.2d 38 (Fla.1975).

There is not, however, even a shred of evidence from which the jury could lawfully infer that at the time of the breaking and entering appellant had a fully formed, conscious intent to commit the misdemeanor of assault and battery, or for that matter, the intent to commit any misdemeanor. The intent charged in the Information is an essential element of the offense, Vawter v. State, 63 So.2d 255 (Fla.1953); Jenkins v. State, 58 Fla. 62, 50 So. 582 (1909); Cole v. State, 276 So.2d 100 (Fla.App. 2nd, 1973), and the State’s failure to prove such element is fatal. Simpson v. State, 81 Fla. 292, 87 So. 920 (1921). The State’s evidence of intent was wholly circumstantial and, far from excluding every reasonable hypothesis of lack of intent to commit assault and battery, was actually quite consistent with the very reasonable hypothesis that the alleged intruder was there as the result of a tryst. No useful purpose would be served by detailing this evidence.

The jury was instructed that it could find appellant guilty of trespass as a lesser included offense, and this is the highest offense of which the evidence in this case is legally sufficient to sustain a conviction. The judgment and .sentence are severally reversed and this cause remanded with directions to enter a judgment finding him guilty of trespass and to sentence appellant accordingly.

Reversed and remanded.

WALDEN, C. J., and CROSS, J., concur.


text:
    Larry Elmer FESSLER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1359.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.

      Kirk N. Kirkconnell and Chandler. R. Muller, Muller & Kirkconnell, Winter Park, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellant was convicted of possession of a controlled substance upon a plea of nolo contendere conditioned upon reserving his right to appeal the conviction and seek review of the order denying his motion to suppress.

The tangible evidence supporting the charge against appellant was discovered and seized by a police officer as a result of a warrantless search of the trunk of appellant’s automobile after it was stopped by the police officer for the purpose of checking the identification of appellant and his passenger. No arrest of appellant occurred until after the controlled substance was discovered and seized, and hence the search was not incident to a valid arrest. Our review of the record satisfies us that the officer did not have probable cause to conduct the search. The State’s position that the search was lawful because it was pursuant to legally sufficient consent is not supported by clear and convincing evidence in the record. See, Sagonias v. State, 89 So.2d 252 (Fla.1956); Samuels v. State, 318 So.2d 190 (Fla.App. 2nd, 1975).

It was error to deny appellant’s motion to suppress. The judgment and sentence are severally vacated and this cause remanded with directions that the court permit appellant to withdraw his plea, grant his motion to suppress, and permit him to enter such plea to the charge as he may be advised.

Reversed and remanded.

WALDEN, C. J., and CROSS, J., concur.


text:
    John WILDIE, Appellant, v. STATE of Florida, Appellee.
    No. 74-1635.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.

      Richard L. Jorandby, Public Defender, and Craig Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellant was convicted on each count of a three-count information charging (1) breaking and entering a dwelling with intent to commit a felony, to wit: larceny of a motor vehicle, (2) assault and battery, and (3) larceny of a motor vehicle.

Appellant seeks reversal of the judgments on the grounds that the evidence was insufficient to support a finding that appellant had procured a breaking and entering with the intent to commit larceny of a motor vehicle, and that the evidence of identity of appellant was insufficient. Our review of the briefs and record satisfies us that neither point has merit and the judgments are severally affirmed.

On the count of breaking and entering with intent to commit a felony, appellant was sentenced to fifteen years in prison with the proviso that after he had served three years of that term he would be placed on probation for a period of twelve years. A sentence of this type, authorized by Ch. 74-112, Laws of Fla. (1974), would be appropriate as to offenses occurring after its effective date, July 1, 1974. Although appellant was not sentenced until November 5, 1974, the offense of which he stands convicted occurred on January 2, 1974. The punishment in effect at the time of the crime is that under which a convicted person should be sentenced. Castle v. State, 305 So.2d 794 (Fla.App. 4th 1974). Appellant, relying upon Owens v. State, 306 So.2d 176 (Fla. App. 4th 1975) and cases therein cited, contends that the portion of the sentence providing for probation is void and should be stricken. Appellant’s contention is correct to -the extent that a sentence for an offense occurring prior to the effective date of Ch. 74-112, Laws of Fla. (1974), may not validly impose a period of probation following the period of imprisonment specified, and that in the cases upon which appellant relies the courts did strike as void that portion of the sentence providing for probation after the prison term has been served. However, none of these cases will be helpful to appellant because he was not sentenced to three years’ imprisonment followed by twelve years of probation, but rather was sentenced to fifteen years in prison with the proviso that after serving three years he would be placed on probation for twelve years. Thus, simply striking as void that portion of the sentence which divides the fifteen years’ imprisonment (so as to allow for the last twelve years to be on probation) has no ef-feet beyond making the sentence simply one for fifteen years’ imprisonment.

We could strike that portion of the sentence as. surplusage and leave it at that. However, it is apparent from the record of the sentencing proceeding that the trial court felt that appellant was entitled to some leniency rather than the maximum sentence. We think that justice would'be better served by vacating the sentence and remanding to the trial court for the imposition of a proper sentence, thereby affording to the trial court the opportunity to exercise his sound discretion as to the leniency, if any, to which he deems appellant entitled.

Judgment affirmed; sentence vacated and the cause remanded for imposition of an appropriate sentence in accordance with the views herein expressed.

CROSS and DOWNEY, JJ., concur.

      . Amending Fla.Stat. § 948.01(4) (1973).


author: PER CURIAM. MAGER, Judge

text:
    Roy HANKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 74-1748.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.
    Richard L. Jorandby, Public Defender, and James R. Bean, III, Sp. Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. State v. Anderson, 270 So.2d 353 (Fla.1972).

WALDEN, C. J., and DOWNEY, J., concur.

MAGER, J., concurring specially.

MAGER, Judge

(specially concurring).

Although I concur in the majority opinion of affirmance, my review of the appellate record reflects that the trial court may have imposed a greater sentence on the defendant because he availed himself of his constitutional right of a trial by jury. The imposition of a sentence under these circumstances is constitutionally impermissible. See Weathington v. State, 262 So.2d 724 (Fla.App. 3rd, 1972). While the colloquy between the trial judge, defendant and defense counsel at the time of sentencing clearly reflects a discussion of this proposition, for some inexplicable reason the public defender did not raise this as an issue for appellate consideration. See however Rule 6.16, F.A.R. Without suggesting any preconceived view that this issue will prove to be a meritorious one, it would seem that some consideration should be given by counsel to the advisability of seeking post-conviction relief; if such relief is sought the matter can be fully presented for appropriate treatment.


author: PER CURIAM. McCORD, J.

text:
    James Edward ESTEP, Appellant, v. STATE of Florida, Appellee.
    No. Y-5.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.

      Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Affirmed.

BOYER, C. J., and RAWLS; J., concur.

McCORD, J., dissents.

McCORD, J.

(dissenting).

Appellant was charged and convicted of attempt to break and enter with intent to commit a felony. He requested an instruction on the crime of malicious trespass (§ 821.18, Florida Statutes, 1973). Such request was denied by the trial court and proper objection was made. Appellant contends that such was error.

The evidence of the state is to the effect that appellant and another were intercepted by the prosecuting witness while in the act of prying open the skylight on the roof of the home of such witness. Malicious trespass, as defined by § 821.18, Florida Statutes, 1973, is as follows:

“Every trespass upon the property of another, committed with a malicious and mischievous intent, the punishment of which is not specially provided for, shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.-082 or § 775.083.”

The requested instruction- falls squarely under Category 4 as outlined by the Supreme Court in Brown v. State, Fla., 206 So.2d 377 (1968) and as further clarified by Gilford v. State, Fla., 313 So.2d 729 (1975) — offenses which may necessarily be included depending upon the accusatory pleading and the evidence. The Florida Standard Jury Instruction on trespass with malice states in pertinent part as follows:

“When a trespass is committed with a design, that is to say a conscious intent, to cause damage or injury to the property of another . . . it is trespass with malice.”

It appears clear to me that trespass with malice is embraced within the charge of breaking and entering with intent to commit a felony and is supported by the evidence in this case. Such evidence admits to a finding of malicious trespass.

The state relies upon this court’s opinions in Evanco v. State, Fla.App.(1st), 318 So.2d 535 (1975), and Rivers v. State, Fla.App. (1st), 307 So.2d 826 (1975), in support of its contention that malicious trespass is not a lesser included offense in the case sub judice. Neither of these cases is in point. In Evanco trespass after warning was alleged as a lesser included offense but the evidence presented as to previous warning was held to be insufficient to support such contention. In Rivers the appellant’s request for a charge on trespass was insufficient because he did not advise the trial judge which of the numerous trespass offenses he sought a charge upon as a lesser included offense.


text:
    The CITY OF HALLANDALE, etc., and R. A. Hedland, Jr., as Chief Building Inspector of the City of Hallandale, Florida, et al., Appellants, v. STATE of Florida ex rel. SAGE CORPORATION, a Florida Corporation, Appellees.
    No. 75-81.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.
    Rehearing Denied Feb. 26, 1976.
    Charles A. Finkel, Hallandale, for appellants.
    Robert J. O’Toole, Fort Lauderdale, for appellees.
   PER CURIAM.

Appellants, City of Hallandale; R. A. Hedland, Jr., as Chief Building Inspector of the City of Hallandale; and the Hallan-dale City Commission, respondents in a mandamus proceeding below, appeal a final judgment entered in favor of appellee-peti-tioner, Sage Corporation. We reverse.

This is the second appearance of this case before us. We remanded to the trial court for an evidentiary hearing on the issues raised by the pleadings. Following are the findings of the trial court: appellants had failed to comply with the Hallan-dale City Charter in the passage of Ordinance Number 967 in that they neglected to have the yeas and nays of the members of the Hallandale City Commission voting on Ordinance Number 967 recorded in the official minutes of the Hallandale City Commission meeting conducted on April 18, 1972; such failure rendered Ordinance Number 967 invalid; action taken by the city commission in August 1972 amending the 'official minutes of the April 18th city commission meeting to reflect the yeas and nays of the members of the city commission voting on Ordinance Number 967 was ineffective as relates to the rights of Sage Corporation in June- 1972, when Sage Corporation submitted the completed plans for the 142-unit residential complex to the City of Hallandale; since Ordinance Number 967 was invalid, the use requested by Sage Corporation was in conformity with the uses permitted by the City of Hallandale on June 19, 1972 and Sage Corporation was therefore entitled to the requested building permit. Final judgment was accordingly entered and a peremptory writ of mandamus was duly issued. This appeal then followed.

The question for our determination is whether the trial court erred in entering final judgment and issuing a peremptory writ of mandamus in favor of Sage Corporation.

Courts are liberal respecting amendments of corporate records. If through inadvertence or misapprehension the record has been defectively made, it is competent to complete it according to the truth. Thus where the record fails to show that the yeas and nays were taken, it may be amended so that it will speak the truth. The amendment is by a nunc pro tunc entry, and upon entry of an amendment the record thereupon has the same force and effect as though originally made as amended. Ogletree v. City of Winter Garden, 128 So.2d 437 (Fla.App.1961).

Turning our attention to the instant case, an examination of the official minutes of the April 18th Hallandale City Commission meeting as originally approved by the Hallandale City Commission on June 6, 1972 reveals that the yeas and nays of the members of the city commission voting on Ordinance Number 967 were not recorded in said minutes. These minutes, however, did reflect that Ordinance Number 967 was passed by a unanimous vote of the city commission, and that the yeas and nays of the members of the Hallandale City Commission voting on Ordinance Number 967 were indeed taken at the April 18th city commission meeting. When attention came to the city commission that the yeas and nays were not recorded in the official minutes of the April 18th city commission meeting as originally approved, the city commission amended the official minutes so that the official minutes would speak the truth, i.e., the official minutes would reflect that each member of the city commission had voted yea concerning the passage of Ordinance Number 967. Such amendment is clearly proper and has the same effect as if regularly done.

Therefore, appellants fully complied with the Hallandale City Charter in the passage of Ordinance Number 967. Said ordinance was effective to preclude the city commission from issuing the building permit requested by Sage Corporation. Since Sage Corporation was not entitled to the issuance of the requested building permit, the trial court erred in entering final judgment and issuing a peremptory writ of mandamus in favor of Sage Corporation.

Accordingly, the final judgment in favor of Sage Corporation is reversed, the peremptory writ of mandamus is quashed, and the cause remanded to the trial court to dismiss the petition for a writ of mandamus.

Reversed and remanded, with directions.

CROSS, OWEN and DOWNEY, JJ., concur.

      . See City of Hallandale v. State of Florida, ex rel. Sage Corporation, 298 So.2d 437 (Fla.App.1974) for statement of the facts of the case.


author: MILLS, Judge.

text:
    Jackie Carl ABBOTT, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-146.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   MILLS, Judge.

The defendant seeks reversal of judgments of conviction and sentence based upon jury verdicts finding him guilty of the crime of aiding two prisoners to escape.

The defendant contends that the judgments of conviction are fatally defective because the state failed to adduce evidence establishing that the prisoners were in lawful custody at the time of their escape.

The only testimony adduced by the state was that the prisoners were inmates at a prison camp on the date of their escape, and that one of the prisoners pled guilty to the charge of escape.

Section 843.12, Florida Statutes, provides that it is a crime to aid a person in escaping from an officer who is entitled to the lawful custody of the person. Proof that the escaped person was in lawful custody is necessary to a conviction for aiding escape. Evidence that the escaped person was in custody, without more, is insufficient to establish that he was in lawful custody. Maggard. v. State, 226 So.2d 32 (Fla.App. 4th, 1969).

In the case before us, the evidence was insufficient to sustain the defendant’s conviction.

Reversed with directions to discharge the defendant.

BOYER, C. J., and McCORD, J., concur.


text:
    Barry F. PORTNOY, M.C., Appellant, v. SOUTH BROWARD HOSPITAL DISTRICT d/b/a Hollywood Memorial Hospital, et al., Appellees.
    No. 75-308.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.
    James T. Schoenbrod, Aurell & Huck, P. A., Miami, and Gall, Lane & Powell, Washington, D. C., for appellant.
    Davis W. Duke, Jr., McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lau-derdale, for appellees.
    Robert L. Shevin, Atty, Gen., Tallahassee, and Donald D. Conn, Asst. Atty. Gen., Tallahassee, amicus curiae.
   PER CURIAM.

Counsel for the parties have advised the court during oral argument that appellant has received a full evidentiary hearing by the Board of Commissioners of the South Broward Hospital District and that as a result thereof he has been dismissed from the staff of the appellee hospital and that no appeal from said decision has been taken. In view of the foregoing it appears to us the issues raised in the case sub judice are moot.

Accordingly, this appeal is dismissed.

CROSS and DOWNEY, JJ, and SCHULZ, GEORGE E., Associate Judge, concur.


author: HENDRY, Judge.

text:
    DEPARTMENT OF BUSINESS REGULATION, DIVISION OF HOTELS AND RESTAURANTS, State of Florida, Appellant, v. Louis STEIN and Florida National Bank of Ft. Lauderdale et al., Appellees.
    Nos. 75-422 and 75-383.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.

      William D. Moore and Charles L. Curtis, Tallahassee, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Sam Daniels, Lapi-dus & Hollander, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   HENDRY, Judge.

Appellant, defendant below, brings these consolidated appeals from two final judgments of the circuit court in favor of ap-pellees, plaintiffs below. Appellant originally appealed directly to the Supreme Court of Florida which, after determining that jurisdiction was properly in this court, transferred the appeals to us for consideration and determination.

Appellant is the Department of Business Regulation, Division of Hotels and Restaurants, an agency of the State of Florida. Appellees, pursuant to a license issued by appellant, own and operate an apartment building in Dade County, Florida, known as Lancelot Hall.

Prior to October 1, 1972, appellees had rented numerous apartments in Lancelot Hall pursuant to a standard printed lease form. Under this lease, security deposits were required to be paid by the various tenants.

After receiving complaints from the tenants, appellant instituted administrative action against appellees alleging that they had failed to pay interest on the tenants’ security deposits it had been holding since October 1, 1972, as required by § 83.49, Fla.Stat., F.S.A., of the Florida Residential Landlord and Tenant Act.

Appellees then instituted declaratory judgment actions in the circuit court seeking to preclude appellant from enforcing the terms of the Act or applying it unconstitutionally to them. Thereafter, the circuit court entered two final judgments dated June 28 and July 9, 1974, holding that appellant did not have the authority to impose a fine against appellees or to revoke their license for failure to comply with either § 83.261 or § 83.49, Fla.Stat., F.S.A., of the Act. Additionally, the circuit court held that §§ 83.261(2) (b) and 83.49(2), Fla.Stat., F.S.A., effective October 1, 1972, and July 1, 1973, respectively, did not apply retroactively so as to require the payment of interest on security deposits received by appellant under written leases created prior to October 1, 1972.

From these two judgments, appellant appeals contending the circuit court erred in determining: first, that § 83.49(2), Fla. Stat., F.S.A. does not require the payment of interest on security deposits received by appellees from tenants under written leases executed prior to October 1, 1972, and, second, that the division of Hotels and Restaurants of the Department of Business Regulation has neither the power to fine appellees or to revoke their license for failure to comply with § 83.49(2), Fla. Stat., F.S.A.

Appellees contend to the contrary.

After a careful review of § 83.-49(2), Fla.Stat., F.S.A., and the record in these appeals, we agree that this Section does not require the payment of interest by appellees on security deposits created under written leases executed by them prior to October 1, 1972. To hold otherwise, under the facts of these appeals, would give retroactive effect to § 83.49(2), Fla.Stat., F.S.A. In making this determination, we recognize the presumption that statutes operate prospectively unless legislative intent to the contrary clearly appears. Here no such clear intent appears. State v. Green, Fla.1958, 101 So.2d 805; Board of Trustees, etc. v. Medeira Beach Nom., Inc., Fla.App. 1973, 272 So.2d 209.

Also, we agree with the holding of the circuit court in its final judgment that appellant had neither the power to fine ap-pellees nor to revoke their license for failure to comply with § 83.49(2), Fla.Stat., F.S.A. Appellant, as an administrative agency of the State of Florida, is a creature of the statutes of this state and is empowered only with the authority given to it by such statutes. At the time the cases on appeal were tried, we are unaware of any statutory authority which granted appellant the power to fine appellees or revoke their license for failure to comply with § 83.-49(2), Fla.Stat., F.S.A. See McRae v. Robbins, 1942, 151 Fla. 109, 9 So.2d 284; Atlantic Coast Line R. Co. v. State, 1932, 106 Fla. 278, 143 So. 255, and 1 Fla.Jur. Administrative Law § 21. Section 83.-49(2), Fla.Stat., F.S.A., has now been amended to give appellant the power in appropriate cases to fine a licensee or to suspend or revoke its license. Although this amendment does not operate to affect the final judgments herein appealed by appellant, it does make the question moot for the future.

We have considered the record, all points in the briefs and arguments of counsel in light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final judgments appealed are affirmed.

Affirmed.

      . Section 83.49, Fla.Stat., F.S.A., has been amended by Oh. 75-133, Sec. 2, Laws of Florida 1975, by adding thereto Subsection (6) which reads as follows :
      “For the purposes of this part, a renewal of an existing rental agreement shall be considered a new rental agreement and any security deposit carried forward shall be considered a new security deposit.”
      This opinion should not be construed as passing on the effect of this new law.

      . Section 83.49, Fla.Stat., F.S.A., has been amended by Ch. 75-133, Sec. 2, Laws of Florida 1975, by adding thereto Subsection (7) which reads as follows:
      “Any person licensed under the provisions of s. 509.241, unless excluded by the provisions of tins' part, who fails to comply with the provisions of this part shall be subject to a fine, or to the suspension or revocation of his license by the Division of Hotels and Restaurants of the Department of Business Regulations in the manner provided in s. 509.261.”
      This opinion should not be construed as passing on the effect of this new law.


author: PER CURIAM. RAWLS, Judge

text:
    Patricia Anne HILL, Appellant, v. Robert Earle HILL, Appellee.
    No. Y-184.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1976.

      James L. Powers, of Powers, Folsom, Adams & Smith, Jacksonville, for appellant.
    Quentin T. Till, and James O. Brecher, of Taylor & Brecher, Jacksonville, for appellee.
   PER CURIAM.

Each of the points presented by this appeal from the final judgment of dissolution of marriage were resolved by the learned trial judge and are supported by competent substantial evidence. While we probably would not have awarded the same amounts of alimony, child support and attorney’s fees as did the learned trial judge, we can not say that as a matter of law he abused his broad discretion. See Dinkel v. Dinkel, Fla.1975, 322 So.2d 22. Accordingly, the judgment appealed is

Affirmed.

Appellant’s application for attorney’s fees and costs incident to this appeal is denied.

BOYER, C. J., and SMITH, J., concur.

RAWLS, J., dissents.

RAWLS, Judge

(dissenting)

Pursuant to appellee husband’s petition for dissolution, this marriage of twenty-one years was determined. Custody of the parties’ two minor children, ages thirteen and eleven, was awarded to the wife with the husband being directed to contribute $150.00 per month per child to the wife for the children’s support. During their marriage, the parties had accumulated jointly owned material assets consisting of the marital home and furnishings, a coin collection valued at $3,500.00, and stocks valued at $2,000.00. The wife was employed as a secretary at a gross salary of $560.00 per month as compared to the husband’s monthly income of $750.00 from his employment as a collections manager for a bank, together with $373.00 monthly retirement from the Navy.

The trial court denied the wife any rehabilitative, periodic, or lump sum alimony. Exclusive use and occupancy of the marital home, together with all furnishings and fixtures, was awarded to the wife until she remarried or until the youngest living minor child attains the age of eighteen years. The wife was directed to make all mortgage payments, taxes or assessments and hold the husband harmless for and on account thereof.

In my opinion, under the undisputed facts of this case, the trial court erred in not awarding to the wife as lump sum alimony the husband’s undivided interest in the marital home.

      . The final judgment further required the husband to pay all reasonable and necessary expense in connection with special schooling for the youngest child, and any medical and dental expenses over and above those covered by hospitalization or medical insurance or benefits received from the United States Government on behalf of said minor children,

      . It was uncontradicted that the home needed roof repairs in the approximate sum of $1,-000.00.


text:
    DONALDSON ENGINEERING, INC., Appellant, v. CITY OF PLANTATION, a Municipal Corporation, Appellee.
    No. 75-185.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.
    James W. Geiger, of Devitt, Geiger, O’Neal & Booth, Fort Lauderdale, for appellant.
    Mark S. Schecter, of Kirsch & Mills, Fort Lauderdale, for appellee.
   OWEN, Judge.

The issue here is whether the trial court, upon post-judgment petition for enforcement of the judgment, erred in modifying the judgment.

Appellant, a land developer, brought suit against the City of Plantation to recover certain money which the City had required appellant to contribute to the City’s bridge fund. In a final judgment entered November 17, 1972, the trial court found that certain of the required contributions were illegal and ordered their refund, but the court also found that certain other contributions, amounting to $7,630.09, were the subject of a valid contract between the parties to be applied to the construction of a specific bridge, the Sixteenth Street bridge. The court further found “that an implied in fact condition of the agreement was that the bridge would be built within a reasonable time” and “that under the circumstances a period of two years from the date of this judgment [is] a reasonable period of time.” The court thereupon ordered, with respect to the $7,630.09, that

“The Defendant CITY OF PLANTATION be and it is hereby authorized to retain the sum of Seven Thousand Six Hundred Thirty Dollars and Nine Cents ($7,630.09) towards the construction of the aforesaid Sixteenth Street bridge. Upon failure of the Defendant CITY OF PLANTATION to commence construction of the said bridge within two years from date of this judgment, then, in that event, the Plaintiff may apply to this Court for return of said sum. This Court specifically retains jurisdiction with respect to the said sum retained in the City of Plantation Bridge Fund.” (e.s.)

After two years had transpired, appellant filed its motion for the return of the $7,630.09, alleging that the City had not commenced construction of the bridge. At hearing on the motion, the parties stipulated that the actual physical construction of the bridge had not commenced. However, the City was permitted to present testimony to explain why construction had not commenced. Upon the basis of the evidence submitted, the trial court, concluding that in entering its final judgment of November 17, 1972, it had “underestimated the time” for commencing construction on the bridge and that the City had “proceeded diligently”, ordered that the two-year period provided for in the final judgment be extended so long as the City of Plantation continued to proceed diligently with obtaining the necessary permits and thereafter with constructing the bridge, failing which, appellant could reapply for the return of its $7,630.09. It is from this order that the appeal has been taken.

A final judgment is one that determines the rights of the parties and disposes of the cause on its merits leaving nothing more to be done other than to enforce the judgment. Gore v. Hansen, 59 So.2d 538, 40 A.L.R.2d 1281 (Fla.1952); Hollywood, Inc. v. Clark, 153 Fla. 501, 15 So.2d 175 (1943). The judgment of November 17, 1972 was clearly a final judgment within these terms and, as such, its legal and factual findings were conclusively binding upon the parties and not subject to relitigation under the doctrine of res ju-dicata. Delcher Bros. Storage Co. v. Carter, 132 So.2d 593 (Fla.1961); Kent v. Sutker, 40 So.2d 145 (Fla.1949). Among the conclusive factual findings made in the November 17, 1972 judgment was the finding that a period of two years from the date of the judgment was a reasonable time within which to commence (not necessarily complete) the physical building of the bridge and implicit therein was the further finding that the City’s failure to commence construction within such a time would be a breach of the agreement entitling appellant to the return of the $7,630.-09.

If the City had felt that such factual finding was erroneous, it should have sought a rehearing or sought a reversal upon appeal. The City did neither, apparently content to be bound by the judgment. When that judgment achieved ultimate finality, it could only be amended, modified or vacated by proper independent action or by an appropriate proceeding as provided in Rule 1.540 RCP. Appellee has not sought such relief, but had it done so timely it would not have been entitled to have the final judgment modified or amended as was done in this case. If the trial judge, in entering the original final judgment, “underestimated the time required for commencing construction on the bridge”, such was a judicial decision, which, if erroneous, was a judicial error or mistake in judgment, and as such is not the type of mistake or inadvertence reachable under Rule 1.540(b) RCP.

The language of the final judgment (which provides that upon failure of the City to commence construction of the bridge within two years from the date of this judgment, “then, in that event, the Plaintiff may apply to this Court for a return of said sum,”) may appear at first blush to be permissive only; however, we think that, in the context of the final judgment and its obvious finality, appellant’s right to “apply to [the] Court for return of said sum” meant that appellant was absolutely entitled to said refund, not merely that it had the right to have the issue of its entitlement made the subject of further inquiry. Otherwise, the judgment would lack finality leaving unsettled, just as did the postjudgment order, the question of when, if ever, appellant would be entitled to a refund of the $7,630.09.

The order appealed is reversed and this cause remanded with directions to enter an order consistent with the views herein expressed.

Reversed and remanded.

CROSS and DOWNEY, JJ., concur.


text:
    Marilyn RENFROE, Appellant, v. Kenneth RENFROE and Charter Bank of Gulfbreeze, Florida, Appellees.
    No. 75-485.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.
    David M. Bernstein, and Norman F. Solomon, Law Offices of Norman F. Solomon, Miami, for appellant.
    Dan A. Hames, Law Offices of Dan A. Hames, Coral Gables, for appellee-Kenneth Renfroe.
   OWEN, Judge.

In the final judgment dissolving the marriage of the parties to this appeal, ap-pellee-husband was directed to make support payments of $33.00 to the wife for each of the two children and alimony payments of $33.00 to the wife, but through clerical error or oversight the judgment did not specify how such payments were to be made. On oral argument before the court, counsel for the respective parties stipulated that such payments were to be made weekly. Accordingly the final judgment is modified to this effect. Appellant’s other points are without merit and the judgment, as herein modified, is affirmed.

Affirmed, as modified.

DOWNEY, J., and DRIVER, B. J., Associate Judge, concur.


author: WALDEN, Chief Judge. DOWNEY, Judge

text:
    Walter ABRAMS, Appellant, v. STATE of Florida, Appellee.
    No. 75-589.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.

      Richard L. Jorandby, Public Defender, and Maxine E. Reynolds, Special Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   WALDEN, Chief Judge.

Defendant appeals his conviction of robbery. On appeal he urges that the trial judge committed reversible error due to his inadvertent prejudicial conduct. We agree and reverse.

The conduct in question occurred after the first day of testimony in the presence of the jury. After the state’s key witness (and victim of the crime) finished testifying, she went up to the Bench and shook hands with the judge and visited with him and they engaged in conversation. As the judge later stated, he and his family had known the witness for years. The defendant moved for a mistrial which was denied.

It is incumbent upon all judges to avoid any comments or conduct which convey expressly or inferentially his opinion of the weight, character or credibility of any evidence adduced; as the court in Lester v. State, 37 Fla. 382, 20 So. 232 (1896) admonishes :

“ . . . great care should always be observed by the judge to avoid the use of any remark in the hearing of the jury that is capable, directly or indirectly, expressly, inferentially, or by innuendo, of conveying any intimation as to what view he takes of the case, or that intimates his opinion as to the weight, character or credibility of any evidence adduced. All matters of fact, and all testimony adduced, should be left to the deliberate, independent, voluntary, and unbiased judgment of the jury, wholly uninfluenced by any instruction, remarks or intimation, either in express terms or by inuendo from the judge, from which his view of such matters may be discerned. Any other course deprives the accused of his right to trial by jury, and is erroneous.” Id. 20 So. at 234.

see Hunter v. State, 314 So.2d 174 (4th DCA Fla. 1975).

From the judge’s shaking hands and conversing with the state’s witness, the jury could most reasonably infer that he believed her to be a very credible, honest witness. This inadvertent conduct was prejudicial to the defendant, especially in view of the fact that this was the state’s key witness. See Robinson v. State, 161 So.2d 578 (3rd DCA Fla.1964).

We, therefore, reverse defendant’s conviction and remand for a new trial.

Reversed and remanded.

OWEN, J., concurs.

DOWNEY, J., dissents, with opinion.

DOWNEY, Judge

(dissenting).

Unquestionably a trial judge must be circumspect in what he says and does in the presence of the jury. And while undue recognition of certain witnesses in the presence of the jury should be avoided, I am not convinced that reversible error was committed in the trial of this case. On the contrary, the totality of the evidence convinces me that the judicial conduct complained of was at most harmless error.