author: ANSTEAD, Judge. LETTS, Judge,

text:
    SOUTHERN COLONIAL MORTGAGE COMPANY, INC., and Colonial Mortgage Company of Indiana, Inc., etc., Appellants, v. John E. MEDEIROS et al., Appellees.
    No. 76-355.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.

      William E. Sadowski, of Helliwell, Mel-rose & DeWolf, Miami, for appellants.
    John F. Cosgrove, of Hall & Hedrick, Miami, for appellee Weil-McLain Co., Inc.
    Paul A. Gore, of McCrory, Chappell, Brandt & Gore, P. A., Fort Lauderdale, for appellee Satellite Lighting Inc. and Morgan Whitman Supply Co.
    Martin E. Segal, of Patton, Kanner, Na-deau, Segal, Zeller & LaPorte, Miami, for appellee Climatrol Corp.
   ANSTEAD, Judge.

This appeal involves a contest as to priorities between mortgagees and mechanics lienholders on a condominium development. The appellants-mortgagees, Southern Colonial Mortgage Company, Inc. and Colonial Mortgage Company of Indiana, Inc., appeal a judgment in favor of the appellees-lien-holders, Weil-McLain Company, Inc., Satellite Lighting, Inc., Morgan Whitman Supply Company, and Climatrol Corporation. We reverse.

The mortgagees extended loans to two purchasers of condominium apartments in Hidden Harbor condominium complex. Mortgages securing the loans were recorded on March 8 and April 5, 1974. 'Portions of the loans, $23,293.25 in one case and $24,-441.94 in the other, were paid directly to the construction lender-mortgagee to secure releases of the construction mortgage which had been recorded on September 13, 1972.

A notice of commencement on the Hidden Harbor construction project was recorded on May 15, 1973. The lienholders recorded claims of liens on August 28, 1974, October 2,1974, November 19,1974, and January 14, 1975.

When the two condominium apartment purchasers defaulted, the mortgagees filed a foreclosure action and joined the lienhold-ers as defendants. The trial court found that the lienholders’ claims were superior to the mortgagees’ on the basis that the mechanics’ liens related back and attached as of the date of the recording of the notice of commencement.

The mortgagees assert that Section 713.-13(5), Florida Statutes, prevents any mechanics’ liens recorded more than one year after the recording of the notice of commencement from relating back to the notice of commencement as the date the lien attaches. Section 713.13(5) provides:

Unless otherwise provided in the notice of commencement or a new or amended notice of commencement, any notice of commencement heretofore or hereafter recorded shall not be effective as to any person acquiring title or any interest in real property from the owner or under him after one year from the date of recording the notice of commencement.

In this section a class of persons is designated to receive the benefit of the provisions thereof. That class consists of “any person acquiring title or any interest in real property from the owner or under him”; or if read with the remaining words of the section, the class consists of “any person acquiring title or any interest in real property from the owner or under him after one year from the date of recording the notice of commencement.” Whichever way the class is defined, the mortgagees are not included.

Under Florida law a mortgage does not convey title or create “any interest in real property.” The mortgagees have presented a very convincing argument that the legislature intended by enacting Section 713.13(5) to fix a date certain by which liens must be recorded or lose the right to relate back to the notice of commencement. However, while we believe this argument has merit, we cannot avoid the actual words used by the legislature and the plain legal meaning of those words.

As noted above, the class definition may also be limited to persons acquiring title or any interest in real property more than one year after the recording of the notice of commencement. The mortgages, even if defined as “any interest in real property,” were recorded within one year of the notice of commencement and are therefore excluded from the class benefited by Section 713.-13(5).

For these reasons we hold that the mortgagees were not entitled to invoke Section 713.13(5) to gain priority over the mechanics’ liens of the appellees, and the trial court’s order is affirmed in this respect.

The mortgagees-appellants next claimed they were entitled to priority by reason of being subrogated to the rights of the construction mortgage to the extent that mortgage was paid by them. The construction mortgage predated the mechanics’ liens, and the payments by the appellants-mortgagees did pay off in full the construction mortgage insofar as it encumbered each condominium unit involved.

This right of subrogation has been recognized in Florida:

The rule is academic that one who makes a loan to discharge a first mortgage, pursuant .to an agreement with the mortgagor that he shall have a first mortgage on the same lands to secure it, the lendor will be subrogated to the rights of the first mortgagee, notwithstanding there is at the same time a second outstanding mortgage of which he (the lendor) is ignorant.

The equitable result of such a rule was further stated by the Supreme Court:

The application of this rule works common justice to all; it prevents injury to appellant, who furnished the money to pay off the first mortgage in ignorance of the second; it gives appellant the benefit of its payment; carries out the intention of the parties; and leaves Alderman, the holder of the junior mortgage, in his original position. One of the first tests determining the application of this rule is whether or not subrogation to the place of the prior or retired lien puts the holder of the second lien in any worse position than if the prior lien had not been discharged.

The foregoing principle of law assumes that the one paying is not a volunteer and has a sufficient interest to warrant the payment of another’s debt. The lienholders argue that the failure of the mortgagees to secure a formal assignment from the construction lender should bar subrogation. We agree that an assignment would be the better practice to insure the successor mortgagee’s subrogation rights. However, under the circumstances of this case and the equitable principles set out above we do not feel the failure to secure an assignment prevents subrogation. And by recognizing the mortgagees’ subrogation rights, the lienholders are not placed in any worse position than if the construction mortgage had not been released.

The mortgagees also claim that this action is controlled by the judgment of the circuit court in a companion case rendered while this action was pending. However, we find that any defense available to the mortgagees as a result of the companion case was not properly raised in the trial court.

The mortgagees further claim that the mechanics’ liens are barred or restricted by the provisions of Sections 711.20(1), (2), and (3), Florida Statutes (1975). These statutes provide:

(1) Subsequent to recording the declaration and while the property remains subject to the declaration, no liens of any nature shall thereafter arise or be created against the condominium property as a whole except with the unanimous consent of the unit owners. During such period liens may arise or be created only against the several condominium parcels.
(2) Labor performed or materials furnished to a unit shall not be the basis for the filing of a lien pursuant to the mechanics’ lien law against the unit or condominium parcel of any unit owner not expressly consenting to or requesting the same. No labor performed or materials furnished to the common elements shall be the basis for a lien thereon, but if duly authorized by the association such labor or materials shall be deemed to be performed or furnished with the express consent of each unit owner and shall be the basis for the filing of a lien against all condominium parcels in the proportions for which the owners thereof are liable for common expenses.
(3) In the event a lien against two or more condominium parcels becomes effective each owner thereof may relieve his condominium parcel of the lien by payment of the proportionate amount attributable to his condominium parcel. Upon such payment it shall be the duty of the lienor to release the lien of record for such condominium parcel.

We think the foregoing subsections apply to all claims of lien recorded after the recordation of the declaration of condominium unless the lien is for work done or for materials furnished before the recordation of the declaration of condominium and the lien relates back to a notice of commencement that predates the declaration of condominium. This construction would enable this particular condominium statute to exist without conflicting with the mechanics’ lien law. It would also appear to give meaning to the terms “arise or be created” as used in Section 711.20(1). Liens which are timely recorded after the recor-dation of the declaration of condominium and which relate back to a prior notice of commencement “arise or [are] created” pri- or to the recordation of the declaration of condominium. Thus, such liens are not precluded by Section 711.20(1).

Since there is no condominium association in existence prior to the recording of the declaration of condominium, Section 711.-20(1) would not appear to refer to a claim of lien for work done or materials furnished to the common elements prior to recordation of the declaration of condominium.

For the foregoing reasons, in our opinion one improving real property prior to the recording of a declaration of condominium is entitled to enforce a claim of lien against the entire property perfected after the declaration is recorded, if the claim of lien relates back to a notice of commencement that was recorded before the declaration of condominium, even though the claim of lien is recorded after the date the declaration of condominium is recorded. In enforcing a perfected claim of lien against the entire property, the artisan can join the unit owners as a class via the condominium association. See Section 711.12(2), Florida Statutes (1975). However, the most equitable result would be accomplished by making each condominium unit liable only for its pro rata share based upon its pro rata interest in the condominium property as set forth in the declaration of condominium. Those units which did not pay their pro rata share could then be sold to satisfy the balance of any unpaid lien.

For the foregoing reasons the judgment of the trial court is reversed with directions that judgment be entered in accordance with the terms of this opinion.

CROSS, J., concurs.

LETTS, J., dissenting in part.

LETTS, Judge,

dissenting in part.

I agree with the foregoing except that I disagree that section 713.13(5) of the Florida Statutes (1975), does not apply to mortgages despite the recent Second District Court of Appeals decision in United of Florida, Inc., v. Illini Federal Savings and Loan Association and Lyman Savings and Loan Association, 341 So.2d 793 (opinion filed January 12, 1977).

The Second District ruling is based upon the statutory phrase in said sub paragraph 5, above quoted, which indicates that a notice of commencement, over one year old, shall not continue to be effective “ . as to any person acquiring title or any interest in real property from the owner or under him . . . .” Interpreting this quoted phrase, the Second District opined that a mortgage is not “an interest in land,” and that the phrase “any interest in real property from the owner or under him,” means identically the same thing as “an interest in land.” Thus, the Second District concluded that a notice of commencement remained effective as to any potential, or actual, mortgage lenders, regardless of the fact that in excess of one year had elapsed since the notice of commencement was recorded.

I would agree that the Florida law is well established that a mortgagee does not have “an estate or interest in mortgaged lands by virtue of [his] mortgage, but is merely the owner of a chose in action creating a lien on the property.” Shavers v. Duval County, 73 So.2d 684, 687 (Fla.1954). Said holding, in turn, cited an earlier decision, Waldock v. Iba, 114 Fla. 786, 153 So. 915 (Fla.1934), wherein the court held that “a mortgage does not create AN INTEREST IN LAND.” (Emphasis supplied).

I cannot agree, however, that a mortgage does not constitute the acquiring of “ . any interest in real property from the owner or under him . . . .” under the intent of Section 713.13(5), for it is self evident that the holder of a mortgage lien on any property has some considerable interest in it, and I am confident that the statutory language employed never envisaged that the phrase “ . . . any interest in real property from the owner or under him” under Chapter 713 would be found to be a synonym for the legal phrase of art “AN interest in LAND.”

I am persuaded to this point of view by three factors:

First, the Second District, in its recent ruling in the United of Florida decision, supra, cited two Florida Supreme Court cases to substantiate its conclusion; however, neither of the cases relied on concluded that a mortgage did not constitute “ANY interest in REAL PROPERTY from the owner or under him.” In the Shavers case, supra, the Court held that a mortgage was not “AN estate or INTEREST IN mortgaged LANDS ” and for authority, cited, in turn, the Waldock case, supra, in which the phrase used was, “A mortgage does not create AN INTEREST IN LAND.” (Emphasis supplied). It is obvious, therefore, that it is these last four particular words, spoken together, that give rise to the special legal meaning attached thereto. There is no reason, therefore, that the phrase “any interest in real property from the owner or under him” must receive the identical interpretation under Section 713 of the Florida Statutes. In much the same way, by analogy, however exaggerated, we come across the phrase in Black’s Law Dictionary which defines the phrase “criminal conversation” as defilement of the marriage bed, or adultery; however, if the legislature were to draft a bill which included the phrase “two or more criminals conversing together,” there would be no reason to have to conclusively presume that the words could refer only to a meretricious relationship.

My second reason for disagreeing is that it is most inconsistent to hold that Section 713.13(5) would permit lienors to retain superior rights, vis-á-vis mortgage lenders, after the passage of one year, and yet have those very same rights, at the end of one year, become inferior to actual purchasers, or for that matter, long term lessees under a leasehold interest. If that were the case, then there is no necessity in the Statute to include the wording “ . . . any interest in real property from the owner or under him” and it could simply be omitted. Thus Subsection (5) would simply state “any notice of commencement . . . shall not be effective as to any person acquiring title . from the owner or under him.” Accordingly, to include the additional wording must have had some purpose. To suggest that the legislature intended that a property owner could not defeat the priority of mechanics lien holders by mortgaging his property, but could do so by the simple act of selling or leasing it to those who, in turn, could about face and secure exactly the same financing, is, to say the least, unlikely. In fact, it is such a “laundered out” result to which the Second District took strong exception in the United of Florida case, supra, when it referred to the inability of a mortgage lender to assign its priority.

Finally, it is noted that one of my colleagues in the Second District, specially concurred in the United of Florida case, supra, and apparently did so for reasons similar to those expressed herein. I am aware that it is not normally the function of an appellate court to explain away what the legislature might have had in mind, but on the other hand, our Supreme Court has recognized that:

Where obviously a definition is contrary to, or destructive of, the legislative intent of an act of which it is a part, it is not sacrosanct but is subject to statutory construction in relation to conflicting provisions .
Ervin v. Capital Weekly Post, 97 So.2d 464, 467 (Fla.1957).

It is unquestioned that the language employed in 713.13(5) is unfortunate and steps should be taken to clarify it, for even the twelve month time provision is susceptible to diverse reading. For example, under the wording employed, what happens after the twelve month period is exceeded, to a purchase made before that period is over. The Second District ruling in United of Florida, Inc. (supra) would appear to give the mechanics lienors preference, even over a buyer, in that instance. I cannot believe such was ever intended.

      . United of Florida, Inc. v. Illini Federal Savings & Loan Association, 341 So.2d 793 (Fla.2d DCA 1977).

      . Id.

      . Federal Land Bank of Columbia v. Godwin, 107 Fla. 537, 145 So. 883, at 885 (1933). Also see Schilling v. Bank of Sulphur Springs, 109 Fla. 181, 147 So. 218 (1933); Forman v. First Nat. Bank, 76 Fla. 48, 79 So. 742 (1918); For-tenberry v. Mandell, 271 So.2d 170 (Fla.4th DCA 1972); G. Glenn, Glenn on Mortgages § 340 (1943). But compare Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916).

      . Federal Land Bank of Columbia v. Godwin, supra, 145 So. at 886.

      . Furlong v. Leybourne, 138 So.2d 352 (Fla.3d DCA 1962).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    VOIGHT INVESTMENT CO. and Aetna Casualty & Surety Company, Appellants, v. CONSOLIDATED ELECTRIC SUPPLY, INC., a Florida Corporation, Appellee.
    No. 76-529.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Larry Klein, West Palm Beach, and Cone, Owen, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellants.
    No briefs filed by appellee.
   PER CURIAM.

Despite the absence of briefs from the appellee, this cause is affirmed upon the authority of Hey Kiley Man, Inc. v. Azalea Gardens Apartments, 333 So.2d 48 (Fla. 2nd DCA 1976); Industrial Supply Corporation of Orlando v. Sea World of Florida, Inc., 314 So.2d 643 (Fla. 4th DCA 1975); Ceco Corporation v. Goldberg, 219 So.2d 475 (Fla. 3rd DCA 1969).

DOWNEY, DAUKSCH and LETTS, JJ., concur.


author: LETTS, Judge.

text:
    Richmond E. ROYAL, Appellant, v. STATE of Florida, Appellee.
    No. 76-588.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Rehearing Denied July 22, 1977.
    Louis V. Cianfrogna, Titusville, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

This is an appeal from a conviction for second degree murder. We reverse.

During direct examination before the jury, counsel for the State engaged in the following dialogue with the arresting officer, without objection:

Q. How did you advise the Defendant of his constitutional rights?
A. I advised him that prior to making any statement or answering any questions, either oral or written, that he had a right to be represented by a legal counsel. If he was unable to afford an attorney, the State of Florida would furnish him with an attorney, without any cost to him. Anything that he said, any statement, either oral or written, must be free and voluntary, without threat of punishment or promise of reward. Anything that he did say could and would be used against him in a court • of law.
I asked him if he understood, and if he wanted to talk to an attorney before he talked to me.
Q. What was his response?
A. His response was that, “I had a reason for doing what I did, BUT I WANT TO DISCUSS IT WITH AN ATTORNEY FIRST.” (Emphasis supplied).

We are somewhat reluctantly of the opinion that the ten words emphasized above constituted a use by the prosecution, at trial, of the fact that the defendant had claimed his Fifth Amendment privilege in the face of an accusation. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694 (1966).

The case now before us is analogous to our own recent decision in Carter v. State, 335 So.2d 875 (Fla. 4th DCA 1976). In Carter, the defendant was asked why he was hiding near the scene of a robbery, to which question he replied by saying that he had a good reason for being there BUT PREFERRED NOT TO DISCUSS IT WITH THE POLICE. This dialogue was reported to the jury by the arresting officer, without objection, but we held it fundamental error, nonetheless. Jones v. State, 200 So.2d 574 (Fla. 3rd DCA 1967). We do not see sufficient distinction between the facts in Carter and the case now before us, to justify a contrary conclusion in this cause.

The State cites an exhaustive and well written opinion by Judge Grimes in Clark v. State, 336 So.2d 468 (Fla. 2nd DCA 1976), wherein the policeman testified before the jury, without objection, as follows:

HE REFUSED TO MAKE ANY STATEMENTS TO ME, SIR, other than he knew nothing about the incident that had occurred at the tavern.” (Emphasis supplied).

Pursuant to that reported conversation, the court, in Clark, held that the reference to the defendant’s refusal to make a statement was “clearly improper;” however, the court concluded that it was not fundamental error and was therefore waived by the failure to object. The holding in Clark is persuasive to us, but it would appear there is an important distinction, namely in Clark, the court noted that as soon as the admittedly tainted evidence came in, the prosecutor abandoned the dialogue and made no reference to it during final argument. By contrast, in the case sub judice, the prosecutor recalled the defendant’s statement to the arresting officer by arguing to the jury that:

In New Orleans, when he is arrested there and taken into custody by Agent Schmader, what was his only statement there, and that was after Agent Schmader informed him of his rights. After he knew he was charged with the murder of George Bragg. His only statement was, “I had a reason for doing what I did. I AM NOT GOING TO SAY ANYTHING UNTIL I SEE A LAWYER.” (Emphasis supplied).

While a portion of the defendant’s statement might be held to be voluntary after a full reading of his Miranda rights, and therefore admissible, the inclusion of the phrase about not saying anything until the appellant saw a lawyer, was a clear reference to his right of silence.

We made reference above to some reluctance in reaching our conclusion. This arises because the offensive words were uttered after a full Miranda warning at the conclusion of which the officer warned appellant that “anything that he did say could, and would, be used against him in a court of law.” It is our belief that had the response merely been “I had a reason for doing what I did”, then such would have been admissible; however, the inclusion in the same sentence of the additional words “but I want to discuss it with an attorney first”, makes it fundamental error.

In so holding, we agree with Judge Grimes in Clark, supra, when he noted that each decision must be reached on a case by case basis, the polestar being whether or not the defendant has been afforded a fair trial, which we do not believe he was in this case; however, we presently do not address ourselves, for example, to the problem of a lengthy voluntary confession, after the administration of complete Miranda warnings, at the conclusion of which the accused says “despite the foregoing confession, get me an attorney first.” We will have to cross such a bridge if, and when, we come to it, but regardless, we suggest that prosecutors and their police witnesses refrain, absolutely, from making unsolicited enquiries or remarks before a jury about a defendant exercising his fundamental right to remain silent when arrested.

Reversed and remanded.

MAGER, C. J., and ANSTEAD, J., concur.

      . The appellee’s brief, on page 16 thereof, states that the prosecutor’s closing argument made reference only to the remark that defendant had a reason for doing what he did and that “no mention in closing argument was made to any silence whatsoever.” We would refer the Attorney General’s office to page 159 of the transcript, lines 23 and 24 whereat the prosecutor quoted the defendant as saying, “I am not going to say anything until I see a lawyer,” We are persuaded that this inaccuracy was but an oversight, but would point out that said oversight was important to the consideration of this case.


text:
    Allen HANKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-879.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Rehearing Denied July 25, 1977.
    Richard L. Jorandby, Public Defender, and George B. Barrs, Asst. Public Defender, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

This is an appeal from a robbery conviction. We reverse.

A co-defendant had already pled guilty to the robbery sub judice, prior to trial, and he was promptly subpoenaed by the State under Chapter 914.04, Florida Statutes (1975). At the deposition prior to trial, the subpoenaed co-defendant refused to testify, claiming a Fifth Amendment privilege, and was found in contempt of court for so doing. Galled as a witness at the trial itself, the same co-defendant again refused to testify, out of the presence of the jury. Thereafter, the jury was recalled and the co-defendant, over the objections of the defense, was again interrogated, and once again, refused to testify.

It would appear at first blush that the co-defendant had no right to invoke his Fifth Amendment privilege in the light of the foregoing recitation of facts, however, a bystander was shot during the course of the robbery and the co-defendant was asked, on the stand, if he had pulled the trigger. Predictably, he refused to answer. Regardless of whether or not the privilege existed in this case, we have examined a line of cases, including our own recent decision in Hill v. State, 330 So.2d 487 (Fla. 4th DCA 1976), and it is apparent that we have held such action by the prosecutor to be reversible error, whether or not the witness has the right to invoke the privilege, it simply being enough if he, in fact, claims it. The facts in Hill were that the co-defendant had already been tried and acquitted of the offense, yet despite all admonitions from the court that he was fully immunized, he was interrogated in front of the jury, refused to testify and was found in contempt. Unfortunately, in Hill, our opinion referred to the co-defendant as “invokpng] his Fifth Amendment privilege” when it should have more clearly said “invoking his claim to a Fifth Amendment privilege” and to the extent that such original language might be misconstrued, we now clarify it.

There can be little doubt that when an admittedly implicated witness takes the Fifth Amendment in front of the jury, the defendant, then before" the court, is prejudiced in the eyes of said jury, which may, not surprisingly, conclude that both are guilty. In such event, it would appear that the defendant has indirectly lost his basic right to remain silent and not have his failure to take the stand cast up before the jury.

In the case now before us, the co-defendant repeatedly assured the court and the prosecutor, beforehand, that he would refuse to testify, and we can do no better than adopt the language of our Supreme Court in Richardson v. State, 246 So.2d 771 (Fla.1971), where it was said:

We are forced to conclude that this was a studied attempt on the part of the State to bring to the attention of the jury the refusal of Grooms to testify on his claim of the “Fifth Amendment”, with the attendant inference to be drawn by the jury that not only was Grooms guilty, but also the petitioner, an alleged co-accomplice with Grooms in the crime. .
We feel that reason and justice require us to hold that petitioner suffered irreparable damage and injury in the eyes of the jury by Grooms being ordered to take the stand and thereby being forced to plead the Fifth Amendment. See Kaplow v. State, Fla.App., 157 So.2d 862; Farnell v. State, Fla.App., 214 So.2d 753, and cases cited therein. Id. at 777.

A much cited case, in agreement with our decision here, is Kaplow v. State, 157 So.2d 862 (Fla. 2nd DCA 1963), except that in Kaplow, the co-defendant called to testify at the joint trial had no immunity and the concomitant right to invoke the privilege was cited by the court as one of the criteria for ruling such testimony to be in violation of his privilege against self incrimination. It appears to us, however, that the same prejudice exists as to any accused, on trial, whether or not the right to invoke the privilege exists, if, in fact, the privilege is claimed before the jury. To this end we note a decision from the Fifth Circuit, Lawrence v. Wainwright, 445 F.2d 281 (Fifth Cir. 1971), where two co-conspirators, who had previously pled guilty were called by the State and the court opined that the prosecution could not deliberately call a witness, closely identified with the defendant, knowing that the witness will assert his right to remain silent.

Reversed and remanded for a new trial.

CROSS and DAUKSCH, JJ., concur.

      . The court also found that the burden is on the defendant to show prejudice by such action, which we have no difficulty in finding in the case now before us.


text:
    James Ray BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 76-1231.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Richard L. Jorandby, Public Defender, and Mitchell J. Beers, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The only point raised in this appeal is the failure of the judgment and sentence to reflect with specificity whether defendant was adjudicated guilty of robbery under Section 812.13(2)(a), Florida Statutes, or under Section 812.13(2)(b), Florida Statutes. Although defendant was charged with robbery in violation of Section 812.13, it is asserted that there was no evidence of any deadly weapon. Section 812.13(2)(a) refers to “firearm or other deadly weapon.” Section 812.13(2)(b) refers to “weapon” only. Different penalties are provided under each section. The judgment and sentence merely makes reference to “robbery,” and the sentence imposed does not give any indication as to whether the judgment and sentence was intended to reflect a violation of Section 812.13(2)(a) or 812.13(2)(b). Accordingly, this cause is remanded to the trial court for the sole purpose of correcting the judgment and sentence to specify the applicable degree of felony. See Hickman v. State, 347 So.2d 658 (Fla. 4th DCA 1977).

MAGER, C. J., and ALDERMAN and ANSTEAD, JJ., concur.


text:
    ASSOCIATED TELEVISION AND COMMUNICATIONS, INC., a Florida Corporation doing business as Associated Telecom, Appellant, v. DUTCH VILLAGE MOBILE HOMES OF MELBOURNE, LTD., a limited partnership, Abraham Zimmerman, Marvin Miller, Edward Kaye, general partners, and Kyle, Inc. of Georgia d/b/a Carns Concrete Pipe Company, Appellees.
    No. 76-1298.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.

      Joseph S. Gillin, Jr., of Storms, Pappas & Krasny, P. A., Melbourne, for appellant.
    Edward J. Richardson, of Saxon & Richardson, P. A., Melbourne, for appellees, Dutch Village Mobile Homes, Abraham Zimmerman, Marvin Miller and Edward Kaye.
    Charles M. Harris, of Crofton, Holland, Starling, Harris & Severs, P. A., Titusville, for appellee, Kyle, Inc. of Georgia.
   LETTS, Judge.

This interlocutory appeal stems from the trial court’s granting of a motion to dismiss with prejudice, because the appellant failed to file its cross-claim within one year after recording its claim of lien. We reverse.

The essential facts are that the appellant filed a claim of mechanic’s lien on January 13th, 1975 and a complaint to foreclose said lien some four months later. The named defendants in that suit included not only the owner with which the appellant had contracted to install a master television distribution system, but also another mechanic’s lienor, also an appellee hereunder, Cams Concrete Pipe Company. The appellant’s complaint also alleged its lien to be superior to that of Cams Concrete and sought to foreclose its lien as to this latter appellee.

In due course, the said Cams Concrete filed not only an answer but also a cross-claim against all the parties predictably alleging that, in fact, its lien was superior to appellant’s.

Thereafter, in August of 1975, the appellant filed a notice of voluntary dismissal of its complaint, whereupon Caras Concrete served its cross-claim on appellant, which appellant, in turn, duly answered, and thus it was that the same suit continued in effect, based on the cross-claim filed by Cams Concrete.

Thereafter, on January 9th, 1976, some four days prior to the expiration of one year from the original recording of the claim of lien, the appellant filed an “amended complaint”, simultaneously with a motion for leave to amend it, renaming all defendants, including Cams Concrete. A hearing on this motion was held January 15th (two days after the expiration of one year), and eight days thereafter, the trial court denied the motion to amend the complaint stating in its order that there was no complaint on file (because of the voluntary dismissal) to be amended; however, the court’s denial of the motion to amend granted appellant “leave to file a cross-claim in this action”, which it promptly did. This cross-claim, insofar as it attempted to establish a mechanic’s lien, was then dismissed, upon motion, for failure to file same within one year of the recording of said claim of lien, pursuant to F.S. 713.22(1) (1975). This interlocutory appeal results.

We are not, at this stage, called upon to examine the correctness or advisability of the pleadings or tactics of counsel, and our sole function here is to consider the order decreeing that the appellant’s final pleading was untimely filed. The record reveals that the pleading entitled “amended complaint”, filed within the one year, is almost identical to the later pleading entitled “cross-claim” except that the nomenclature of the parties is amended, for example, to add “cross” before “plaintiff” and “cross” before “defendant”. The exhibits are also identical and, of course, the substance of appellant’s claim is exactly the same. Under the circumstances, we must view the “cross-claim” as no more than an amendment to the “amended complaint” which latter was filed within the year. We are therefore of the opinion that Rule 1.190(c), Fla.R.Civ.P. applies, and it states:

(c) Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.

In a similar case involving the statute of limitations and the same rule above cited, the Second District Court stated as follows:

Thus, as we view it, the proper test of relation back of amendments is not whether the cause of action stated in the amended pleading is identical to that stated in the original (for in the strict sense almost any amendment may be said to be a change of the original cause of action), but whether the pleading as amended is based upon the same specific conduct, transaction, or occurrence between the parties upon which the plaintiff tried to enforce his original claim. If the amendment shows the same general factual situation as that alleged in the original pleading, then the amendment relates back — even though there is a change in the precise legal description of the rights sought to be enforced, or a change in the legal theory upon which the action is brought. Keel v. Brown, 162 So.2d 321, at 323 (Fla. 2nd DCA 1964).

Similarly, this very court is committed to the view that leave to amend should be freely given. Petterson v. Concrete Construction, Inc., 202 So.2d 191 (Fla. 4th DCA 1967). There could be no surprise or prejudice to the appellee for the amendment sought was, in essence, nothing more than the same in substance as appellant’s dismissed amended complaint, which was dismissed by the judge upon the expressed premise that appellant could refile it in the same action, if it but renamed the pleading a cross-claim. See Carmichael v. Shelley Tractor and Equipment Company, 300 So.2d 298 (Fla. 4th DCA 1974).

The appellees rely heavily on the Florida Supreme Court case of Stilson and Co. v. Caloosa Bayview Corporation, 278 So.2d 282 (Fla.1973), where the Court disallowed the filing of an amended claim of lien after the running of the statutory period, stating that the time provisions of the Mechanic’s Lien Law must be strictly construed, otherwise . . the claimant could file over ad infinitum by the simple expedient of filing an amended claim and thereby defeat the purpose of the statute for a speedy conclusion.” Id. at 284. We do not feel that Stilson is controlling in the case now before us, because we are in agreement that had the appellant attempted to file an amended claim of lien after the expiration of the one year, and before instituting suit (as was the case in Stilson), we would have no difficulty in affirming the trial court in the case now before us. However, we are not dealing here with an amended claim of lien, but with a filed lawsuit, in progress, in which the appellant merely filed an erroneously named pleading within the statutory period which the court gave him leave to refile under another title.

The appellees also cite Harris Paint Company v. Multicon Properties, Inc., 326 So.2d 43 (Fla. 1st DC A 1976), which, somewhat like the case before us, involved the dropping of a party defendant and then an attempt to re-add that party. We agree with the holding in Harris, but readily distinguish it from the case sub judice, because in Harris the attempt to re-add the defendant took place after the statutory time period had run. Here, the appellant made its technically defective attempt to do so within the one year time limitation.

Reversed with directions that the appellant be permitted to attempt to establish its mechanic’s lien, but with the suggestion that the pleading entitled a “cross-claim” may be in part a counterclaim as well.

DOWNEY and DAUKSCH, JJ., concur.

      . This pleading labeled “cross-claim” would appear to be, in part, a counterclaim as well, but we do no more than comment on this misnomer.


text:
    STATE of Florida, Appellant, v. Ronald Jerome NELSON, Appellee.
    No. 76-1845.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Rehearing Denied July 25, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, App. Div., and James K. Green, Legal Intern, West Palm Beach, for appellee.
   LETTS, Judge.

The State of Florida has filed an interlocutory appeal from an order suppressing evidence of opium seized as the result of a search warrant executed at 9:15 at night. We reverse.

The customary printed search warrant form in question was signed by the appropriate judge and included the following language:

. You or either of you, with such lawful assistance as may be necessary, are hereby commanded, in the daytime, NIGHTTIME or on Sunday AS THE EXIGENCIES OF THE SITUATION MAY REQUIRE, to enter and search. . (emphasis supplied).

At the hearing on the motion to suppress, the public defender’s office argued, in essence, that it is for the issuing magistrate only, never the executing police officers, (the latter having the choice in the case sub judice), to determine whether the exigencies of the occasion would support a night time execution, and that the affidavit in support of the search must state probable cause for the necessity of any such nighttime execution. To buttress this contention, the public defender successfully cited State v. Collins, 317 So.2d 846 (Fla. 2nd DCA 1975), cert. den., Fla., 330 So.2d 16, which case the lower court accepted as authority for granting the motion to suppress.

It would appear that the language in the Collins case relied on by the public defender, and the judge, for this position must be the following:

The magistrate did not abuse his discretion in authorizing service of the search warrant at night. Section 933.10 F.S. specifically provides that the issuing magistrate may authorize a night-time search “as the exigencies of the occasion may demand or require.” The affidavit indicated that Collins would be at his home at approximately midnight on August 22, 1974, with a quantity of Cannabis. Id. at 847-848.

In our opinion, this language does not seek to indicate that the issuing magistrate, or judge, must be the only one to determine whether or not a nighttime, as distinct from a daytime, execution is permitted, and that further, he can only do so upon probable cause set forth in the affidavit supporting the request for a warrant. The language quoted above simply says that the magistrate may expressly authorize a nighttime search and, most certainly, we agree with that, for that is what Chapter 933.10 Florida Statutes (1975) so provides. Said Chapter of the Florida Statutes states that a search warrant may be executed in the daytime or the nighttime as the exigencies of the occasion may demand or require, if expressly authorized to do so by the judge or magistrate issuing same. Such is exactly what was done here. A warrant was issued to be executed “. . .in the daytime or in the nighttime ... as the exigencies of the occasion may demand or require . . ..” This particular language in the warrant, as indeed the entire contents of the search warrant itself, is a direction to the chief of police and/or any of his police officers to do the magistrate’s or judge’s bidding, in the daytime or the nighttime, depending on the exigencies. Moreover, its clear import tracks the statute cited above.

As further support for our view, we would point out that the corresponding Federal Rule of Criminal Procedure 41(c) specifically provides that a search warrant must be executed in the daytime “unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime.” No such limiting language is found in Chapter 933.10 Florida Statutes (1975). Moreover, another Florida Statute pertaining to a cruelty to animals search warrant does specifically provide that “. . .no search shall be made . . . after sunset, unless specially authorized by the officer issuing the warrant upon satisfactory cause shown . .” Thus, it is demonstrated that the Florida Legislature is not unaware of limiting searches to the daytime when it wants to. See Section 933.02(5), Florida Statutes (1975).

We would add, parenthetically, although it is not essential to our holding, that the executing officer testified at the motion to suppress that nighttime searches are particularly desirable when dealing with drugs because the approach must be made without detection, otherwise the drugs are frequently flushed down the toilet. We need not decide as to whether this testimony, admitted over strenuous objection, was error (although harmless, as the judge ruled for the defense). We can, however, as a matter of common sense, agree. Detection of approaching police officers will not permit of the instant destruction of a stolen motorcycle, either down the toilet or by way of the garbage disposal. Drugs, on the other hand, as every judge, criminal lawyer and law enforcement officer knows, are repeatedly gotten rid of by way of the toilet, and the exigencies of the occasion, surrounding any drug seizure, demands undetected approach or the search is a waste of the taxpayer’s time and money.

DOWNEY and ALDERMAN, JJ., concur.

      . The reference in Collins to the affidavit’s contents is in our opinion, merely cumulative and was not essential to the result.


text:
    STATE of Florida, Appellant, v. Bronislaw SULIKOWSKI, Appellee.
    No. 76-2201.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellant.
    James K. Freeland, Orlando, for appellee.
   PER CURIAM.

AFFIRMED. See Howell v. State, 337 So.2d 823 (Fla. 1st DCA 1976); Pierson v. Sharp, 283 So.2d 880 (Fla. 4th DCA 1973); and Rosenstein v. Raticoff, 265 So.2d 387 (4th DCA 1972).

MAGER, C. J., and ALDERMAN and ANSTEAD, JJ., concur.


author: ANSTEAD, Judge.

text:
    Matildes EVANGELAKIS, Petitioner, v. HEALTH AND REHABILITATIVE SERVICES, DIVISION OF MENTAL HEALTH, South Florida State Hospital and Career Service Commission, Respondent.
    No. 76-2266.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    J. Leonard Fleet of Fleet & Packar, Hollywood, for petitioner.
    Robert L. Shevin, Atty. Gen., and Betty J. Steffens, Asst. Atty. Gen., Tallahassee, for respondent.
   ANSTEAD, Judge.

By application for a writ of certiorari, the appellant, Matildes Evangelakis, seeks to reverse an order of the Florida Career Service Commission which concluded that he had no right to a review of his discharge as Director of the Children’s Unit of South Florida State Hospital. We find that he was entitled to review and grant certiorari.

The superintendent of South Florida State Hospital wrote a letter to Dr. Evan-gelakis on July 11, 1975, which stated:

This letter will, therefore, effect your demotion from the class of Children’s Psychiatric Unit Director, 4531, pay grade 39, to the class of Psychiatrist III— Lead Worker, 4508, pay grade 38, at the close of the workday July 17, 1975.

The letter went on to explain the petitioner’s right to have “this demotion” reviewed on appeal by the Career Service Commission. It is the denial of this right of review that petitioner seeks to overturn.

Section 110.061(2)(a), Florida Statutes (1975) provides for appeals when an employee is “demoted.” Section 110.042(19) provides:

(19) “Demotion” means moving an employee from a position in one class to a different position in another class having a lesser degree of responsibility and a lower maximum salary.

The Commission, by its order denying review, approved a hearing examiner’s finding that Evangelakis had not been demoted.

Evangelakis was specifically informed by his employer and supervisor that he was demoted. The class to which he was transferred, in pay grade 38, has a lower maximum salary than his old class in pay grade 39. And there is little dispute in the record that the new position, Psychiatrist III, has less fixed responsibilities than did the position of Director of the Children’s Unit. In short, Dr. Evangelakis was not only told he was demoted but he was demoted.

The order of Career Service Commission of September 27,1976, denying the petitioner review of his demotion is hereby quashed; and this cause is remanded for appropriate proceedings in accordance herewith.

DOWNEY and DAUKSCH, JJ., concur.


author: DAUKSCH, Judge.

text:
    E. G. GREEN and Margerie Green, his wife, Appellants, v. Paul F. BRYAN, as Trustee, Appellee.
    No. 77-969.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Interlocutory Appeal from the Circuit Court for Orange County; Claude R. Edwards, Judge.
    Phillip R. Finch, Gray, Adams, Harris & Robinson, P. A., Orlando, for appellants.
    G. Thomas Ball, Orlando, and Sidney A. Stubbs, Jr., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This matter is before us by Interlocutory Appeal of an Order granting a Partial Summary Judgment to Appellees. After Notice of Appeal was filed the Appellee filed a “Confession of Errors” alleging the trial court did commit error and requesting this court to advance this cause for determination. No objection or response has been filed by Appellant although his counsel is aware of the request, so says the Appellee. Based on the record before us, the Notice of Appeal and the Confession of Error requesting reversal, the Order granting Partial Summary Judgment is reversed.

REVERSED.

CROSS, J., concurs.

LETTS, J., concurs in conclusion only.


text:
    STATE of Florida, Appellant, v. Glenn DeVORE, Appellee.
    Nos. 76-1427 and 76-1428.
    District Court of Appeal of Florida, Second District.
    June 17, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Julian Clarkson and Frank C. Alderman, III, Fort Myers, for appellee.
   PER CURIAM.

The sole issue herein is whether the trial court properly dismissed an information filed during the pendency of an appeal from a prior dismissal of an indictment on the same charge as laid in the information. The trial court dismissed the action rather than abate it pending the disposition of that prior appeal; and the distinction becomes important because of speedy trial complications arising out of the terms of the speedy trial extension granted by the trial court because of the instant appeal. We think the court should have abated the action, so we reverse.

Since the question herein is jurisdiction over the subject matter, we see no difference in the premises between a criminal case and a civil case. In Bimholz v. Steisel, a civil case, our sister court in the Third District held under similar circumstances that the action should have been abated rather than dismissed. There, a dismissed complaint was reinstated by that court and the losing parties sought certiora-ri in the Supreme Court. Pending determination of that certiorari, the plaintiff filed another complaint in the trial court setting forth identical causes of action against the identical defendants. We agree with our sister court that abatement was appropriate.

In view whereof, the order appealed from should be, and it is hereby, reversed.

McNULTY, Acting C. J., and GRIMES and OTT, JJ., concur.

      . 338 So.2d 862 (Fla. 3d DCA 1976).


author: HENDRY, Chief Judge.

text:
    Vernice ROSS, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES of the State of Florida, Appellee.
    No. 76-1160.
    District Court of Appeal of Florida, Third District.
    June 17, 1977.
    Rehearing Denied July 20, 1977.

      Robert A. Bertisch, Howard D. Miskey and Stephen Maher, Legal Services of Greater Miami, Miami, for appellant.
    Chester G. Senf, Jacksonville, Gerald B. Jaski, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HENDRY, Chief Judge.

This is an appeal from an order of the trial court dismissing appellant’s petition for adoption.

Appellant-petitioner, a fifty-five year old widow, filed her petition to adopt the minor child, L, then age seventeen months. Appellant had been L’s foster mother from the time the child was twelve days old. Appel-lee-respondent, the Department of Health and Rehabilitative Services of the State of Florida, was opposed to the adoption on the grounds of appellant’s age, economic condition and marital status.

At final hearing, both sides offered testimony addressed to the child’s best interest. The trial court accepted appellee’s recommendation against adoption and this appeal follows.

On appeal, appellant’s primary contention is addressed to the sufficiency of the evidence presented by appellee to support the trial court’s order. More specifically, appellant argues that the court placed too little reliance upon testimony concerning possible psychological damage occurring to L by virtue of a separation from appellant, while overemphasizing such factors as appellant’s age.

Initially, we note that an order of-the trial court comes to an appellate court clothed with a presumption of correctness and it is not the function of an appellate court to substitute its judgment for that of the chancellor, unless it has been made to appear that the chancellor’s findings are clearly erroneous. Morrison v. Smith, 257 So.2d 623 (Fla. 4th DCA 1972).

Sub judice, the trial court found that pursuant to the recommendation of appellee, which stands in loco parentis, having the responsibility to determine the proper adoptive home in which to place the child, the interests of L would best be served by dismissing appellant’s petition for adoption. As this finding by the trial court was based upon substantial competent evidence, the order appealed must accordingly be affirmed. Smith v. Lyst, 212 So.2d 921 (Fla. 3d DCA 1968).

Any other points raised by appellant are without merit and need no discussion.

Affirmed.


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. David POUGH et ux., et al., Appellees.
    No. DD-269.
    District Court of Appeal of Florida, First District.
    June 20, 1977.
    Marvin B. Nodel, of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellant.
    William A. Parsons, of Gosney, Cameron & Parsons, Paul Bernardini, Daytona Beach, for appellees.
   PER CURIAM.

Several points have been presented on this appeal, one questioning the jurisdiction of this court. We find that we do have jurisdiction. We also find that the learned trial judge was the manifestation of patience itself as the case was tried on theories and issues not raised by the pleadings. He did, however, err when he instructed the jury on the affirmative defense of estoppel which had neither been raised by the pleadings nor by the evidence adduced during the trial. No useful purpose will be served by a recitation of the facts nor will a discussion of the several points urged on the appeal affect the jurisprudence of the state of Florida. Inasmuch as we have determined that we must reverse because of the erroneous instruction on the defense of estoppel we anticipate, based upon comments of counsel during oral argument before this court, that were the parties permitted to replead (which we hereby suggest) prior to a new trial the matters giving rise to the remaining points on appeal should not reasonably be expected to reoccur. We accordingly reverse and remand for a new trial after the parties have been afforded an opportunity, should they so elect, to re-plead.

The motion of appellee Pough for attorney’s fees incident to this appeal is denied.

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


author: ERVIN, Judge.

text:
    Walter P. BRAZIL, doing business in the State of Florida as B & B Advertising Company, Appellant, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellee.
    No. CC-66.
    District Court of Appeal of Florida, First District.
    June 21, 1977.

      William C. Guthrie, Jr., Jacksonville, for appellant.
    Winifred Sheridan Smallwood and Alan E. DeSerio, Tallahassee, for appellee.
    Marion R. Shepard, of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for amicus curiae.
   ERVIN, Judge.

B & B Advertising Company appeals a judgment granting the Florida Department of Transportation’s (hereafter referred to as DOT) application for mandatory injunction forcing removal of B & B’s outdoor sign and denying compensation for its removal. We find the appellant’s constitutional arguments without merit but reverse as to that portion of the judgment denying B & B compensation for removal of the sign.

In 1965, the United States Congress enacted the Highway Beautification Act as part of Title XXIII, United States Code. To further the national policy relating to control of outdoor advertising along interstate and primary federal aid highways, Section 131(d) authorized the Secretary of Transportation to enter into agreements with the several states to determine the size, lighting, and spacing of signs, consistent with customary use and the intent of the Highway Beautification Act of 1965. Section 479.02, Florida Statutes (1971), authorized the governor to execute an agreement with the appropriate agents of the United States to carry out the purposes of the Highway Beautification Act. Such an agreement was entered into by the State of Florida, through its governor, and the United States by the Secretary of the Department of Transportation on January 27, 1972. The agreement applies to' all commercial and industrial areas within 660 feet of the right of way of all interstate and federal aid primary systems within the state. Section III.B. provides in part that no highway signs shall be placed within 1,000 feet of each other.

Prior to December,- 1971, B & B paid $7,000.00 for a small piece of property in Duval County at the intersection of Interstates 10 and 95. A billboard, 45 feet long and 14 feet high, was erected in May, 1972 within 168 feet of an existing sign. In August, 1972, DOT sought a mandatory injunction against B & B alleging the sign violated the spacing regulations of the agreement as well as Section 479.02.

B & B first argues the agreement is an unlawful delegation of authority from the legislature to the executive branch. We find, however, DOT had ample enforcement powers under Section 479.02 aside from the agreement. That section, originally enacted by Chapter 71-971, Laws of Florida, effective December 8, 1971, provides:

“Enforcement of provisions by department.—It shall be the function and duty of the department to administer and enforce the provisions of this chapter: including, but not limited to, executing agreements in conjunction with the governor in accordance with title I of the Highway Beautification Act of 1965, and title 23, U.S.Code, to regulate size, lighting, and spacing of signs permitted in the zoned and unzoned commercial and zoned and unzoned industrial areas and to determine unzoned commercial and industrial areas, and to regulate signs relating to food, lodging, camping, vehicle service and attractions subject to the following:
(1) Size shall not exceed 1,200 square feet.
(2) Spacing shall be 1,000 feet on interstate and 500 feet on primary on the same side of the highway facing the same direction.
(3)Lighting—subject to agreement established by section 479.02, Florida Statutes.” (Emphasis supplied.)

Had all the provisions of the above statute been in force when the sign was erected in May, 1972, B & B would clearly have been on notice of the spacing requirements of Section 479.02. However, Section 479.02 was amended, effective April 21, 1972, by Chapter 72-274, Laws of Florida, as follows:

“Enforcement of provisions by department.—It shall be the function and duty of the department to administer and enforce the provisions of this chapter including, but not limited to, executing agreements in conjunction with the governor in accordance with title I of the Highway Beautification Act of 1965, and title 23, U.S.Code, to regulate size, lighting, and spacing of signs permitted in the zoned and unzoned commercial and zoned and unzoned industrial areas and to determine unzoned commercial and industrial areas, and to regulate signs relating to food, lodging, camping, vehicle service and attractions subject to current federal regulations.” (Emphasis in original.)

The dispositive question concerning the constitutionality of 479.02 for purposes of this appeal is whether the phrase “subject to current federal regulations” passes muster. It is obvious the legislature may adopt provisions of federal statutes and administrative rules made by a federal administrative body “ . . . that are in existence and in effect at the time the legislature acts, but it would be an unconstitutional delegation of legislative power for the legislature to adopt in advance any federal act or the ruling of any federal administrative body that Congress or such administrative body might see fit to adopt in the future.” Florida Industrial Commission v. State, 155 Fla. 772, 21 So.2d 599 (1945). See also Freimuth v. State, 272 So.2d 473 (Fla.1972); State v. Camil, 279 So.2d 832 (Fla.1973). A 1,000 foot spacing requirement was part of federal regulations when Chapter 72-274 became effective in April, 1972. 23 C.F.R. section 20.7(b)(2), effective January 1, 1972.

Since the spacing regulation was in effect and properly incorporated into Florida law by Chapter 72-274 at the time the billboard was erected by B & B the trial court was correct in finding a violation of § 479.02. Therefore B & B Advertising’s attack on the agreement of January 27, 1972 is without merit. DOT has sufficient authority not only to enforce the agreement but also to enforce the remaining provisions of Section 479.02.

B & B also argues the statute draws an invalid distinction between interstate and federal highways on one hand and all other highways on the other, and creates an invalid distinction between signs placed on premises and off premises.

These arguments may be summarily dealt with since B & B lacks standing to challenge the validity of the statute’s sections it is not specifically charged with violating. It is only affected by the spacing regulation set down by § 479.02 and 23 C.F.R. section 20.7(b)(2). Compare Hodges v. Buckeye Cellulose Corp., 174 So.2d 565 (Fla. 1st DCA 1965); Lykes Brothers, Inc. v. Board of Commissioners of Everglades Drainage District, 41 So.2d 898 (Fla.1949), holding that before a person will be heard to question the constitutionality of an act, he must show his personal or property rights are injuriously affected by such statute.

Even assuming B & B has established standing, we note that statutes regulating outdoor advertising have almost universally been upheld against similar constitutional attacks that they constitute an invalid classification. E. g., Markham Advertising Company v. State, 73 Wash.2d 405, 439 P.2d 248 (1968); National Advertising Company v. State Highway Department, 230 Ga. 119, 195 S.E.2d 895 (1973); E. B. Elliott Advertising Company v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970); Boozer v. Miami, 193 So.2d 449 (Fla. 3rd DCA 1967).

Finally, we hold, after examining the pertinent statutory provisions, that B & B is entitled to compensation for the removal of its sign. DOT contends the trial court was correct in ordering the removal of the sign at B & B’s expense, and quotes the first sentence of Section 479.24(1), for support: “Compensation shall be paid upon the removal of all signs lawfully in existence on December 8, 1971 or signs lawfully erected which later become nonconforming.” (Emphasis supplied.) However, DOT’s argument ignores the plain meaning of the remainder of that first section:

‘Compensation for any sign erected or completed after December 8, 1971, shall be limited to the actual replacement value of the materials in such sign. It is the legislative intent that any person erecting or completing such a sign after December 8, 1971, shall be fully compensated by the method herein provided.” (Emphasis supplied.)

Subsection (1) is ambiguous as to when compensation should be paid to billboard owners. The absolute destruction of property is an extreme exercise of the police power and is justified only within the narrow limits of actual necessity, unless the state chooses to pay compensation. Corneal v. State Plant Board, 95 So.2d 1, 4 (Fla.1957). Because of the legislative intent in Section 479.24(1) that compensation be paid and because of the ambiguous language in that subsection, we construe Chapter 479 to require compensation for the actual replacement value of the materials.

We therefore affirm the trial judge’s summary final judgment in all respects except as to the compensation due. We remand for consideration of the cost of such materials.

Affirmed in part and reversed in part.

BOYER, C. J., and MILLS, J., concur.

      . Section 479.02, as it now appears in Florida Statutes, has been reworked by the editors with some resulting confusion:
      “479.02 Enforcement of provisions by department.—It shall be the function and duty of the department to:
      (1) Administer and enforce the provisions of this chapter including, but not limited to, executing agreements in conjunction with the governor in accordance with Title I of the Highway Beautification Act of 1965 and Title 23, U. S. Code;
      (2)' Regulate size, lighting, and spacing of signs permitted in the zoned and unzoned commercial and zoned and unzoned industrial areas;
      (3) Determine unzoned commercial and industrial areas; and
      (4) Regulate signs relating to food, lodging, camping, vehicle service, and attractions, subject to current federal regulations.”
      By separating the text of 72-274 into four separate paragraphs, the phrase “subject to current federal regulations” no longer appears to modify the entire section, as originally enacted and applicable to all proceedings before us.

      . In different fact situations, other state statutes implementing the Highway Beautification Act have been held a valid delegation of legislative authority. See Yarbrough v. Arkansas State Highway Commission,539 S.W.2d 419 (Ark.1976); Wes Outdoor Advertising Company v. Goldberg, 55 N.J. 347, 262 A.2d 199 (1970).


text:
    Wayne D. BOYETTE, D. Huey Boyette and Virginia Boyette, Appellants, v. John T. CARDEN, Appellee.
    No. CC-456.
    District Court of Appeal of Florida, First District.
    June 21, 1977.
    Ernest A. Sellers of Airth, Sellers, Lewis, Cherry & Blair, Live Oak, for appellants.
    W. C. O’Neal of Chandler, O’Neal, Gray, Lang & Haswell, Gainesville, John W. Frost, II, Bartow, Terry McDavid, Lake City, Robert S. Yerkes, Jacksonville, for appellee.
   ERVIN, Judge.

This is an appeal by the Boyettes' seeking review of final judgment of foreclosure granted in favor of cross-claimant, Ralston Purina Company. In July, 1970, the Boy-ettes owed Ralston $113,000.00 on an unsecured open line of credit. Appellants sought additional credit of $60,000.00, of which $35,000.00 was to be used to buy birds on the Thacker, Witt and Columbia Egg Farms. The remaining $25,000.00 was for the purchase of feed from Ralston for the additional birds. Before advancing the additional $60,000.00, Ralston required a mortgage on the appellants’ 640 acre farm. The appellants alleged in their answer, and testified at the hearing, that they were willing to give the mortgage on the farm if it was used to secure only the $60,000.00 financed.

The mortgage, executed July 28, 1970, by its terms specifically secured the payment of one pre-existing unsecured debt, a promissory note dated April 13, 1970 in the principal amount of $61,540.00 and a promissory note executed July 28, 1970 in the principal sum of $35,000.00. The mortgage also secured the payment of any and all notes, liabilities and obligations of the mortgagors to the mortgagee, whether in existence at the time of the execution or accruing subsequently, not to exceed $173,000.00 in the aggregate.

On May 21, 1971, foreclosure proceedings were instituted against appellants by John T. Carden. Later a cross-claim was filed by Ralston seeking foreclosure of its mortgage. The final judgment foreclosed the lien of Ralston on the total indebtedness of appellants, totaling $172,632.40. The court also found $20,000.00 was a reasonable attorney’s fee for Ralston’s attorney. Subordinate liens were established in favor of John T. Carden, the Internal Revenue Service and the Small Business Administration, which are not parties to this appeal.

The Boyettes argue that the court erred in holding they were not entitled to a release of the mortgage foreclosed upon since they offered payment on the remaining balance of the finance and feed account of poultry on the Columbia Egg Farm, the Witt Farm and the Thacker Farm. The evidence at trial showed that appellants refused to sign the mortgage unless Mr. Hamm, sales representative for Ralston, gave them a letter stating that the mortgage would be released upon payment of the additional $60,000.00 borrowed. The record is not clear whether the appellants were represented by counsel. They state that they relied upon the letter rather than the wording of the mortgage. The letter, dated the day before the execution of the mortgage, states as follows:

“This letter is to confirm our verbal agreement this date, concerning financing of layers located on Columbia Egg Farm in Columbia County, Florida, Whitt Farm in Bradford County, Florida and the Thacker Farm in Alachua County, Florida.
Purina would record a third mortgage executed by Boyette Brothers, Inc. and by D. Huey Boyette, Wayne D. Boyette and their wives. Purina would pay half of all recording fees, including documentary stamps, if birds are resold within sixty (60) days. Purina further agrees to release the third mortgage when payment is received clearing the Finance and Feed account on the above described poultry.
Purina would send the balance of this payment to Boyette Brothers, Inc. Any additional egg assignment proceeds would be applied to Boyette Brothers, Inc. or Columbia Feed & Grain account.
If birds are not resold, Purina would expect Boyette Brothers, Inc. to refund to Purina the amount paid by Purina for recording fees and documentary stamps on the above described mortgage.” (Emphasis supplied.)

Although the letter refers to a third mortgage, it is clear from the record that there were no other mortgages from the Boyettes to Ralston prior to the execution of the mortgage on July 28, 1970. The “third” mortgage obviously refers to the only mortgage which the Boyettes are obligated to Ralston and the “finance and feed account” means simply the additional $60,000.00 amount used to purchase birds and feed.

Ralston has never argued that it was not the intent of the parties, as evidenced by the letter, to release the Boyettes from the remainder of the mortgage provided tender of payment was made prior to the institution of the suit. Ralston argues that the Boyettes, not having paid either the remaining balance of $50,551.23 due on the subsequent loan, or having demonstrated any offer of tender, the release clause referred to in the letter is not an appropriate issue. There has been no argument advanced by Ralston that the parol evidence rule applies to vitiate any consideration of the letter involved. On the contrary, the rule is that where other instruments are executed contemporaneously with a mortgage and are part of the same transaction, a mortgage may be modified by other instruments and all the documents are to be read together to determine and give effect to the intention of the parties. Conner Air Lines, Inc. v. Aviation Credit Corp., 280 F.2d 895 (5th Cir. 1960). This rule of construction generally applies where the note and mortgage are inconsistent. Graham v. Fitts, 53 Fla. 1046, 43 So. 512 (1907). The primary rule of construction of a mortgage is to ascertain the intention of the parties, which is accomplished not only from the face of the instrument but also from the situation of the parties and the nature and object of the transactions. Watson v. Poe, 203 So.2d 14 (Fla. 4th DCA 1967).

A mortgage clause, such as the one involved here, making the mortgage a lien on all sums of money due at the time of execution or thereafter becoming due, is known as a “dragnet” clause and should be strictly construed against the party preparing the instrument. United States v. American National Bank of Jacksonville, 255 F.2d 504 (5th Cir. 1958). Such a mortgage is also referred to as a “blanket” mortgage and may be enforced for whatever sum the holder of the mortgage may prove to be due and payable. 59 C.J.S. Mortgages § 165 (1949).

Applying these principles to the mortgage before us, the record amply shows it was the intention of the parties to abide by the terms of the letter from Ral-ston’s sales representative dated July 27, 1970, provided payment was made. We therefore construe the release clause contained in the letter as an effective part of the mortgage by which the parties were bound. In order to satisfy the requirements of payment under the letter, however, what mode of payment or tender is necessary for the release clause to become operative? Ralston argues that since tender was not made prior to institution of the suit, the Boyettes now have waived any rights they might have to complain about the release clause contained in the letter. Ralston cites a number of eases which hold it is necessary for the mortgagor to tender payment prior to the institution of a foreclosure action. E. g., Matthews v. Lindsay, 20 Fla. 962 (1884); Fegers v. Pompano Farms, 104 Fla. 123, 139 So. 201 (1932); New England M. L. Ins. Co. v. Luxury Home Bldrs., Inc., 311 So.2d 160 (Fla. 3rd DCA 1975). None of the above cases, however, involved as does ours a release clause. It appears from the testimony of both Norman L. Chase, credit manager for Ralston of Florida and Wayne D. Boyette that an offer was made to pay the remaining indebtedness on the $60,000.00 note after the lawsuit had been filed. The offer was not accepted. The Boyettes did not forfeit their right to offer payment and seek release of the mortgage simply because the offer was not made until after suit had been filed. In Empress Homes, Inc. v. Levin, 201 So.2d 475 (Fla. 4th DCA 1967), the mortgage sought to be foreclosed contained a release from the mortgage of certain parcels of property in conformity with a release schedule. The court stated the general rule to be applied in construing the rights of a mortgagor under a release clause as follows:

“It is correct, as defendant contends, that release clauses of this sort create vested rights which remain vested even beyond default and may be claimed at any time until a decree of foreclosure is entered. Bailey v. Inman, 1932, 105 Fla. 1, 140 So. 783; Norris v. Schwartz, 1934, 114 Fla. 248, 153 So. 910.” 201 So.2d at 477. (Emphasis supplied.)

It was therefore error for the lower court not to consider the Boyettes’ offer of payment made after default and after foreclosure proceedings were brought.

We deem it appropriate to discuss the Boyettes’ second point pertaining to the award of attorney’s fees in the event the mortgage is ultimately foreclosed. The Boyettes complain that the court erred in awarding attorney’s fees to Ralston’s attorney on the ground that there was only the testimony of its attorney relating to the value of his services. The law is clear that in the absence of a stipulation, there must be corroborative evidence of the reasonableness of the fee before an award is justified. E. g., Lyle v. Lyle, 167 So.2d 256 (Fla. 2nd DCA 1964); Thoni v. Thoni, 179 So.2d 420 (Fla. 3rd DCA 1965); Boyette v. Reliable Finance Co., 184 So.2d 200 (Fla. 2nd DCA 1966).

This cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

BOYER, C. J., and MILLS, J., concur.


author: MILLS, Judge.

text:
    Blaine Archer CHAPOLA, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. EE-9.
    District Court of Appeal of Florida, First District.
    June 21, 1977.
    Michael Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Chapola appeals a jury conviction of robbery as charged in the information. He contends the trial court erred by failing to grant him a hearing on his motion to suppress and by sentencing him to life imprisonment.

The record reveals an order denying a motion to suppress. Although not clear as to whether a hearing was held, absent any record support of his contention, we must presume that the order correctly disposed of Chapola’s motion to suppress.

In pertinent part, the information alleges:

“[B]y force, violence, assault or putting in fear, take certain property, to-wit: money—in excess of $100.00 lawful currency of the U.S. of America, the property of Handy Andy Food Store, 2626 North Magnolia, Ocala, Marion County, Florida, as owner or custodian, from the person or custody of Lloyd A. Ammons, in violation of Florida Statute 812.13.”
Section 812.13, Fla.Stat. (1975), provides: “(1) ‘Robbery’ means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.
“(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in § 775.082, § 775.083, or § 775.084.
(b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in § 775.-082, § 775.083, or § 775.084.
(c) If in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.
“(3) An act shall be deemed ‘in the course of committing the robbery’ if it occurs in an attempt to commit robbery or in flight after the attempt or commission.”

Prior to trial, Chapola took the victim’s deposition and learned that the victim would testify that Chapola was carrying a knife at the time of the robbery. At trial, the State adduced evidence that Chapola was carrying a knife and Chapola adduced evidence that he was not carrying a knife.

The Court read to the jury the standard instruction on robbery. Fla. Stand. Jury Inst. In Crim. Cases, Second Ed., pages 185-186. The jury returned a verdict finding Chapola guilty of robbery as charged in the information. The Court adjudicated Chapola guilty of robbery but sentenced him to life imprisonment.

The terms of Section 812.13 must be substantially followed in charging robbery, and, where it is aggravated by a defendant being armed with a dangerous weapon, this fact must be alleged. Martin v. State, 100 Fla. 16, 129 So. 112 (1930). The information before us merely charges Chapola with robbery. It does not charge him with armed robbery. He was not found guilty of armed robbery. He was not adjudicated guilty of armed robbery. But the life sentence is based on a judgment of guilt of armed robbery.

When a charge of robbery includes the aggravating circumstances stated in Section 812.13(2)(a) or Section 812.13(2)(b), the jury should be given standard instruction 2.17, felony aggravated by weapon. Fla. Stand. Jury Inst. In Crim. Cases, Second Ed., page 49. The trial court did not give this instruction nor was it required to give it.

The Court erred in sentencing Cha-pola to life imprisonment because he was merely charged with robbery; the jury found him guilty as charged; and the Court adjudicated him guilty of this charge. Under Section 812.13(2)(c), which is applicable to this case, the Court could sentence Cha-pola to no more than 15 years imprisonment.

The State argues that Chapola knew pri- or to trial that the State would adduce evidence at trial that he was carrying a knife at the commission of the robbery but he did not attack the sufficiency of the information. This argument is without merit. It is the State’s obligation to frame the allegations of its information, not the defendant. Chapola went to trial on the allegations in the information and the Court properly charged the jury on the allegations and proof thereof at trial.

The judgment of guilt is affirmed. The sentence is set aside and this case is remanded to the trial court for sentencing of the defendant as provided by Section 812.-13(2)(c).

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


author: MILLS, Judge. BOYER, Chief Judge,

text:
    Dean BATES, Petitioner, v. S. Morgan SLAUGHTER, Clerk of the Circuit Court, Fourth Circuit, Duval County, Florida, Respondent. STATE of Florida ex rel. Dean BATES, Petitioner, v. Clifford B. SHEPARD, Circuit Judge, Fourth Judicial Circuit, Duval County, Florida, Respondent.
    Nos. EE-360, EE-402.
    District Court of Appeal of Florida, First District.
    June 21, 1977.
    Rehearing Denied July 25, 1977.
    Barry A. Cohen, Tampa, for petitioner.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for respondent.
   MILLS, Judge.

These cases are consolidated for disposition by us. Bates petitions us to issue a writ of mandamus to Slaughter, Clerk of the Circuit Court of Duval County, directing Slaughter to transfer a criminal case pending against Bates in Duval County to the Circuit Court of Hillsborough County. In addition, Bates suggests that we issue a writ of prohibition directed to Judge Shepard, a Circuit Judge of Duval County, prohibiting the Judge from proceeding further with the criminal action pending against Bates in Duval County.

In June 1976 Bates was charged with a crime in Hillsborough County. In December 1976 he was charged with a crime in Duval County. He is now being held by the authorities in Duval County. On the basis of Section 910.035(1), Florida Statutes (1975), Bates moved to transfer the Duval County case to Hillsborough County for disposition on his guilty plea. The State approved of the transfer subject to approval of Judge Shepard. Judge Shepard agreed to sign an order of transfer subject to approval by the vice squad. The vice squad refused to approve. The judge permitted the State to withdraw its approval of the motion and refused to sign the order of transfer. The clerk refused to transfer the case file. This brought about the petition and suggestion with which we are concerned.

Section 910.035(1) provides:

“(1) INDICTMENT OR INFORMATION PENDING. — A defendant arrested or held in a county other than that in which an indictment or information is pending against him may state in writing that he wishes to plead guilty or nolo contendere, to waive trial in the county in which the indictment or information is pending, and to consent to disposition of the case in the county in which he was arrested or is held, subject to the approval of the prosecuting attorney of the court in which the indictment or information is pending. Upon receipt of the defendant’s statement and the written approval of the prosecuting attorney, the clerk of the court in which the indictment or information is pending shall transmit the papers in the proceeding, or certified copies thereof, to the clerk of the court of competent jurisdiction for the county in which the defendant is held, and the prosecution shall continue in that county upon the information or indictment originally filed. In the event a fine is imposed upon the defendant in that county, two-thirds thereof shall be returned to the county in which the indictment or information was originally filed.”

Bates contends that once the prerequisites of Section 910.035(1) are satisfied the Clerk must transfer the file to Hillsborough County and the Judge is prohibited from proceeding further in the case. Bates’ contention is without merit.

Firstly, the State’s approval of the transfer to Hillsborough County was based on the Judge’s approval and the Judge’s approval was based on the vice squad’s approval, neither of which occurred. Lastly, the information in question is pending against Bates in Duval County and he is being held in Duval County. We find no authority in Section 910.035(1) to transfer this case to Hillsborough County for disposition.

Accordingly, the rule is discharged and the petition for writ of mandamus is denied in Case No. EE-360, and the rule is discharged and the suggestion for writ of prohibition is denied in Case No. EE-402.

McCORD, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge,

dissenting.

The aspect of this case which concerns me most is the almost flippant manner in which the state regards its own agreement. For any citizen or body corporate to disavow its own actions is always a disappointment, but for the sovereign it is even more so. Of all parties which should be dependable it should be the state. Being a composite of the entire citizenry ■ the state, functioning through its officers, agents and employees holds a unique position of trust which should be an example for all to follow. The state, apart from its functionaries, has no eyes, ears, nose nor other vital organs. It is for that reason that the word of a functionary should very nearly be gospel.

The state now argues, blithely, that the statute which was relied upon by the assistant state attorney, defendant and judge of the trial court alike has no application. Perhaps not, but that certainly was not the position taken by the state in the trial court! There the state not only agreed as to applicability, but agreed to comply. Now it cavalierly takes an opposite position.

How may a citizen, it may be rhetorically asked, be expected to act responsibly and abide his sacred word when the all powerful sovereign sets no such example?

I am disturbed too that any action of a trial court be specifically conditioned, as urged and alleged by the state sub judice, upon consent and concurrence by a vice squad. A vice squad is an extremely important arm of government which is entitled to every proper respect. However, its function is to investigate, and where appropriate arrest, making its testimony and evidence available according to law in appropriate proceedings. It should not, however, fill the role of advisor to a judge whose oath and duties require impartiality, not only actually but apparent.

The facts of this case reveal without contradiction that in reliance upon the statute, and in compliance with the permit and mandate thereof, the parties through their respective counsel agreed, after being fully informed of all relevant facts, that the charge lodged against the defendant in Du-val County be transferred to Hillsborough County to be simultaneously disposed of with another charge pending against the defendant there. The state was then and there fully aware of the charge pending against the defendant in Hillsborough County and that there had been negotiations between the defendant’s attorney and the assistant state attorney in Hillsborough County. The sole reason now appearing for the state seeking to renege on its agreement to the transfer is the allegation that it has discovered that the defendant will probably “get no time” in Hillsborough County. (Inferentially 'reflecting that it has already been determined, notwithstanding that there has been no trial, that he will get time in Duval County.) If “time” was a consideration then the state should have appraised itself prior to making the agreement for transfer. In any event, it should not be, and is not, the prerogative of the vice squad, upon whose urging it is now alleged that the state seeks to dishonor its agreement, to determine whether or not defendant gets “time”. The wording of the statute, which was conceded by the parties in the trial court to be applicable, is mandatory. When venue is changed from one circuit to another the court from whence transferred loses jurisdiction except for the purpose of entering such orders as may be necessary to effectuate the transfer. (See Boyer & Barton, Writ of Prohibition in Florida Since 1951, XXIX University of Florida Law Review 241).

The agreement of the parties as to applicability of the statute and the agreement to transfer pursuant to the statute is tantamount to a change of venue and therefore, in my view, the Circuit Court in and for Duval County, Florida no longer has jurisdiction. I would accordingly make the writ of prohibition absolute and grant the writ of mandamus prayed for.


text:
    Mildred I. HELMS and Cecil J. Helms, Appellants, v. M. David SIMS, M.D., Appellee.
    No. 75-723.
    District Court of Appeal of Florida, Third District.
    June 21, 1977.
    Leo Greenfield, North Miami, for appellants.
    Walton, Lantaff, Schroeder, Carson & Wahl, and George W. Chesrow and Michael Jenks, Miami, for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on April 26,1976 (330 So.2d 71) reversing the judgment of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed March 31, 1977 (345 So.2d 721) and mandate now lodged in this court, quashed this court’s judgment, 330 So.2d 71, with directions to reinstate the judgment of the trial court.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on April 26,1976 is withdrawn, the judgment of this court filed April 6, 1976 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the judgment of the circuit court appealed from is reinstated and affirmed. Costs allowed shall be taxed in the circuit court (Rule 3.16(b), Florida Appellate Rules).