text:
    Alf BLAKE, etc., Appellants, v. MIAMI JEWISH HOME AND HOSPITAL FOR the AGED, INC., a non-profit Florida corporation, Appellee.
    No. 77-2664.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 1978.
    Rehearing Denied Sept. 6, 1978.
    Stuart L. Simon, County Atty., and James K. Kracht, Asst. County Atty., for appellants.
    Meyer, Weiss, Rose, Arkin, Sheppard & Shoekett and William E. Shockett, Miami Beach, for appellee.
    Before HENDRY and HUBBART, JJ, and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellants/defendants appeal from an “order on motion for summary judgment” rendered in favor of appellee/plaintiff in an action which (1) challenged the 1976 ad valorem tax assessment on certain real and personal property owned by appellee and located in Dade County, Florida and (2) sought injunctive relief therefrom. Said order denied appellants’ motion to dismiss the complaint and motion for summary judgment. We reverse.

Succinctly stated, appellee sought a charitable exemption upon its property for the year 1976. It failed, however, to file its annual application for exemption from taxation on or before March 1, 1976, pursuant to Section 196.011(1), Florida Statutes (1975). Said section provides as follows:

“196.011. Annual application required for exemption.
“(1) Every person or organization who has the legal title to real or personal property which is entitled by law to exemption from taxation as a result of its ownership and use shall, before March 1 of each year, file an application for exemption with the county [property appraiser], listing and describing the property for which exemption is claimed and certifying its ownership and use. The Department of Revenue shall prescribe the forms upon- which the application is made. Failure to make application, when required, by March 1 of any year shall constitute a waiver of the exemption privilege for that year. However, application for exemption will not be required on public roads rights-of-way and borrow pits owned, leased, or held for exclusive governmental use and benefit or on property owned and used exclusively by a municipality for municipal or public purposes in order for such property to be released from all ad valorem taxation. The owner of property that received an exemption in the prior year may reapply on a short from as provided by the department.”

Section 196.011(4) provides an alternate means of acquiring tax exempt status without the filing of an application for exemption. Said section provides that:

“(4) When any property has been determined to be fully exempt from taxation because of its exclusive use for religious, literary, scientific, or charitable purposes and the application for its exemption has met the criteria of s. 196.195, the [property appraiser] may accept, in lieu of the annual application for exemption, a statement certified under oath that there has been no change in the ownership and use of the property.”

The record, however, is uncontroverted, that the property appraiser never received any certified statement in lieu of an application for exemption.

Accordingly, appellee having both failed to file its annual application, for exemption in a timely manner or alternatively, to submit a certified statement to the property appraiser in lieu of an annual application, it is our opinion that appellee has waived its tax exempt status for the year 1976. See Horne v. Markham, 288 So.2d 196 (Fla. 1973) and Jar Corporation v. Culbertson, 246 So.2d 144 (Fla.3d DCA 1971).

As no genuine issues of material fact remain and it affirmatively appearing that appellants are entitled to summary judgment as a matter of law, the order appealed from is reversed and the cause remanded with directions to enter-judgment in favor of appellants.

Reversed and remanded with directions.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sadie B. Bradley JONES, Appellant, v. Alfonso L. JONES, Appellee.
    No. HH-425.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1978.
    Rehearing Denied Sept. 14, 1978.
    Joseph M. Ripley, Jr., Fernandina Beach, for appellant.
    Joseph F. Duszlak, Jacksonville, for ap-pellee.
   PER CURIAM.

Notice of appeal was filed in this case on October 18,1977. The law is so well settled as to render citations superfluous that the burden is on the appellant to furnish to the appellate court a record sufficient for the appellate court to resolve the issues raised by appellant on appeal. In due course, after this case had matured for consideration, it received the consideration of a panel of this court whereupon, of the court’s own volition, an order was entered which recited, inter alia, that “although we have authority to dismiss the appeal for lack of a sufficient record or to summarily affirm, we nevertheless are of the view that justice will better be served in this case by affording appellant an opportunity to prepare or have prepared a proper record.” We thereupon cited several cases which have considered similar problems. In addition, we cited a rule of the new Florida Rules of Appellate Procedure. Notwithstanding this court’s efforts towards guidance, no record has been filed herein, but appellant has filed a “motion for supplemental instructions regarding order relating to record on appeal”. We find said motion to be without merit and the same is denied. Further, appellant having failed to demonstrate error by an appropriate record, the final judgment here appealed is

AFFIRMED.

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


text:
    R. C. KNOX, Appellant, v. STATE of Florida, Appellee.
    No. II-126.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1978.
    Rehearing Denied Sept. 12, 1978.
    Michael J. Minerva, Public Defender, for appellant.'
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, and Carolyn Snurkowski, Asst. Attys. Gen., for appellee.
   PER CURIAM.

Appellant, convicted below of a violation of Section 800.04, Florida Statutes (1975), appeals his judgment and sentence on the basis of a “ Williams rule” violation and on grounds that the State failed to prove the necessary intent to convict him of the crime charged. We find merit in the first point and reverse.

The record reveals that appellant was charged by information with “handling, fondling, or making an assault upon his step-daughter, Barbara Jean Daughtery, a child under the age of 14 years in a lewd, lascivious and indecent manner without the intent to commit involuntary sexual battery, on May 21,1977.” The bill of particulars requested by appellant specified that the offense took place “between 4 o’clock p. m. on May 21, 1977, and 3 o’clock a. m. on May 22,1977.” At trial, however, the prosecutor in his opening comments outlined an offense which took place late on the night of May 22. Appellant’s wife then testified for the State that she had witnessed an incident between her husband and her daughter on the night of May 22. The daughter then testified to two incidents, one on the night of May 22, which her mother testified that she had witnessed, and another one on the previous night (within the time specified in the bill of particulars) which according to her testimony had occurred outside of the presence of her mother. The State also introduced evidence of a statement made by appellant in which he had admitted having various sexual relations with his step-daughter over an 18-month period. Appellant was convicted by the jury of the offense which had allegedly occurred on the night of May 21 out of the presence of the mother.

Appellant claims first that it was a violation of the “ Williams rule” for the State to present evidence of the May 22 incident throughout his trial on the May 21 incident. We agree. It is obvious on this record that the State’s confusion about the date of the incident witnessed by the mother led to the admission of the evidence on the subsequent incident, which was highly prejudicial to the appellant in defending against the charge on the May 21 offense. We believe that the prejudicial effect of this evidence outweighed any possible relevance it may have had. The evidence here of the subsequent incident was not relevant to prove appellant’s intent, motive, absence of mistake, modus operandi, or any other element of the crime charged. Its only relevance was to show appellant’s propensity to commit the crime, which is clearly improper. Banks v. State, 298 So.2d 543 (Fla. 1 DCA 1974); Harris v. State, 183 So.2d 291 (Fla. 2 DCA 1966); Hooper v. State, 115 So.2d 769 (Fla. 3 DCA 1959). Moreover, the evidence of the collateral incident here became the “featured” evidence, in violation of this Court’s opinion in Reyes v. State, 253 So.2d 907 (Fla. 1 DCA 1971). We conclude that the admission into this trial of the testimony regarding the collateral incident and the appellant’s statement about his ongoing relations with his step-daughter violated the Williams rule and constituted reversible error.

Appellant’s next point, regarding the sufficiency of the evidence to prove his guilt of a violation of Section 800.04 because the State did not prove his “negative intent”, i. e., his intent not to commit involuntary battery, has recently been discussed in Matava v. State, 358 So.2d 1116 (Fla. 3d DCA 1978). We agree with the Court’s holding there that “a defendant may not escape punishment for the offense upon the basis that his mental attitude or intention was actually to commit the higher crime of involuntary sexual battery.”

The final judgment is reversed as to Point I and affirmed as to Point II and the case is remanded for a new trial.

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

      . Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    William KORD, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1991.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 1978.
    Rehearing Denied Sept. 8, 1978.

      Bennett H. Brummer, Public Defender, and Elliott H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by William Kord from an order of revocation of probation and a sentence to five years in the state penitentiary. The record reflects that Kord was charged by information with uttering a forged instrument and receiving stolen property. Kord pled guilty to the first charge, and the state abandoned the second one. The trial court adjudged Kord guilty of uttering a forged instrument, withheld sentence and placed him on probation for two years.

Subsequently, an affidavit of violation of probation was filed. A hearing was held during which the following colloquy took place between Kord, defense counsel and the court:

“MR. SMITH: Judge, we worked this case out where the Probation Officer is going to ask the Court to modify the probation to include in the order ‘Entering and successfully completing an alcohol program to be specified by the Probation Department.’
And also, a due notice to the Defendant should he violate any conditions of probation, he would get two years in the State Prison.
THE COURT: Do you understand that, Mr. Kord?
THE DEFENDANT: Yes, Your Hon- or.
THE COURT: Very clear to you?
THE DEFENDANT: Yes, Your Hon- or.
THE COURT: Do you know if you blow it it’s a very quick trip to the State Prison for two years?
THE DEFENDANT: Yes, ma’am.
THE COURT: All right. Probation so modified.”

At the conclusion of the hearing, the trial judge entered a written order of modification of probation, providing, among other things, that

“. . . .If the aforesaid violates his probation, he is to receive two (2) years State Prison time.”

Shortly after entry of the order of modification, another affidavit of violation of probation was filed. Following a hearing, the trial judge revoked Kord’s probation and imposed a sentence of five years in the state penitentiary.

Two points are raised on appeal. The first is that the evidence is insufficient to support revocation of probation. We do not agree. From the record, we find that the evidence was sufficient to sustain the trial court’s conclusion that Kord materially violated the terms of his probation; and to show that the trial court acted within the bounds of its discretion. Bernhardt v. State, 288 So.2d 490, 501 (Fla.1974); Randolph v. State, 292 So.2d 374 (Fla. 3d DCA 1974); Marshall v. State, 294 So.2d 713, 714 (Fla. 3d DCA 1974); Adams v. State, 330 So.2d 505 (Fla. 1st DCA 1976).

The second point is that the trial court erred in sentencing Kord to five years where it previously modified the conditions of probation to provide for a two year term of imprisonment if probation were subsequently revoked. In our opinion, the court was bound by its previous order pursuant to the. negotiated admission of the first violation of probation. See Mayo v. State, 346 So.2d 98 (Fla. 3d DCA 1977); and compare Segarra v. State, 360 So.2d 79 (Fla. 3d DCA 1978). Accordingly, we modify the five year sentence, and reduce it to two years.

Affirmed as modified.


text:
    Robert Anthony FLOYD, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2702.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 1978.
    Rehearing Denied Sept. 8, 1978.
    Miller & Russell, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

The defendant, Robert Anthony Floyd, was found guilty by a jury of burglary. This appeal presents two points: (1) That the trial court erred in allowing into evidence two oral statements made to a police officer at the scene of the crime where the substance of the statements were not revealed by the State upon demand for discovery. (2) That the evidence is insufficient to sustain the verdict because the intent to commit a felony in the dwelling was not proved. ,

The evidence at trial revealed that the defendant, a friend and neighbor of the intended victim, telephoned the victim, a young woman who was alone in her home, and wanted to have sexual relations with her. He forced open the locked door to her residence, tearing off a bolt lock in the process, and broke open the locked bedroom door, shattering the door in the process. He was shot and wounded by the intended victim and was arrested shortly thereafter.

Two statements that were made by the defendant to police officers at the police station were admitted into evidence after the denial of defendant’s motion to suppress. At the hearing on the motion, it was revealed that the defendant had made oral statements to the police at the time of his arrest. At the trial, it appeared that these oral statements were contradictory as to whether the defendant was inside or outside the house at the time he was shot.

The defendant’s claim of error upon the admission of the oral statements is predicated upon his demand for discovery and the State’s response thereto. The relevant demand made, pursuant to Fla.R.Crim.P. 3.220, was:

“Any oral, written, or recorded statement made by any person to the police, to the State Attorney, or to the grand jury which tends to establish the accused’s innocence or to impeach or contradict the testimony of any witness whom the State will call at the trial of the cause.”

The State’s response was:

“All statements or summaries of statements made by the defendant are available for copying by contacting the undersigned Assistant State Attorney pursuant to Rule 3.220(a)(3).”

At trial, the defendant objected to the introduction of testimony concerning the oral statements on the ground that the State had not made discovery of the statements as required by the rule, although the police officer’s name had been furnished as a prospective witness.

Pursuant to the holding in Richardson v. State, 246 So.2d 771 (Fla.1971), and Fla.R.Crim.P. 3.220(j)(l), the court made inquiry into the surrounding circumstances and determined that the State’s noneompliance with the rule (if noncompliance should be found) had not prejudiced the ability of the defendant to prepare for trial properly. The defendant urges that this determination was an abuse of discretion on the part of the trial judge. We hold that the trial judge’s decision was not an abuse of discretion because it is apparent from the record that the defense counsel knew or, in the exercise of reasonable diligence, could have discovered the substance of the oral statements made to the police officer. Cf. Kelsey v. State, 267 So.2d 685 (Fla. 1st DCA 1972); and State v. Gillespie, 227 So.2d 550 (Fla. 2d DCA 1969).

The defendant’s second claim of error urges that the evidence of intent to commit sexual battery was entirely dependent upon circumstantial evidence which did not preclude the reasonable possibility that the defendant broke into the house for purposes other than sexual battery. It is argued that the familiarity between the defendant and the young woman, although never extending to sexual intercourse, coupled with defendant’s testimony that the young, woman had said that she would leave “the door unlocked,” raised a reasonable hypothesis that the defendant would have desisted in his advances if the young woman had objected.

We hold that the jury could find, as it did, that the hypothesis was unreasonable, in view of defendant’s admission that he entered the house to have sexual relations with the young woman, his admitted telephone call announcing his intention, and the fact that he broke down two doors barring his way. See Gilchrist v. State, 177 So.2d 777 (Fla. 1st DCA 1965).

Affirmed.


text:
    In the Interest of R. A. P., a child.
    No. 76-921.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Richard L. Jorandby, Public Defender, and James L. Eisenberg, 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.

AFFIRMED.

CROSS, LETTS and MOORE, JJ., concur.


text:
    ZUCKERMAN-VERNON CORP., Appellant, v. Harry M. ROSEN, as Mayor of the City of Miramar, a Municipal Corporation, Richard Calhoun, Jerome F. Pollock, Emil Morton as Trustee, Lottie Morton, Lawrence Morton as Trustee, Irma Morton; James Pace, Dixie Williams and City of Miramar, Appellees.
    No. 76-1559.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Rehearing Denied Sept. 15, 1978.

      Joseph Teichman, Miami, for appellant.
    Nancy Little Hoffmann of Druck, Grim-mett, Norman, Weaver & Scherer, Fort Lauderdale, and Joe Easthope of Ferrero, Middlebrooks & Houston, Fort Lauderdale, for appellees Harry M. Rosen, Jerome F. Pollock, Richard Calhoun, and City of Mira-mar.
    Marion E. Sibley of Sibley, Giblin, Leven-son & Ward, Miami Beach, for appellees Emil Morton as Trustee, Lottie Morton, Lawrence Morton as Trustee, and Irma Morton.
   MOUNTS, MARVIN U., Jr., Associate Judge.

This litigation is here for a decision on the propriety of the trial court’s dismissal of-the complaint with prejudice.

The appellant entered into a contract to purchase acreage from appellee. Some two years after the closing the mortgage was foreclosed and the sellers took back the property less some six acres and kept the deposit which had been paid to them.

The appellant filed a four-count complaint naming as defendants the sellers, the brokers, both the present and former mayor of the City of Miramar, the City itself ,and the former city attorney individually.

The basic thrust of the complaint was to the effect that appellant was induced to close the contract by the fraudulent and deceitful misrepresentation that the acreage was properly zoned PUD. The allegations continue that because of the deliberate misrepresentations of the various appel-lees, the appellant was distracted and diverted from making further inquiry about the zoning.

Count One of the complaint was pled in tort and is an action for fraud and deceit. Counts Two, Three and Four sought restitution against the various defendants on a theory of unjust enrichment.

. As it developed the PUD plan was not ' approved by the city and the appellant lost an anticipated profit, incidental damages on expenses and brokerage fees and deposits.

In considering the complaint against a motion to dismiss, the trial court is not required to speculate as to what the true facts might be or what facts might ultimately be established at trial. Because it is the function of a motion to dismiss to raise a question of law as to the sufficiency of the facts alleged to state a cause of action and because the court is not permitted to go beyond the four corners of the complaint in testing its legal sufficiency, the issue of sufficiency of the evidence which the plaintiff may be able to produce at a hearing on the merits, is not material to the threshold decision on a motion to dismiss. Nantell v. Lim-Wick Construction Company, 228 So.2d 634 (Fla. 4th DCA 1969); Reed v. Sampson, 349 So.2d 684 (Fla. 4th DCA 1977).

In Count One it is alleged that the sellers and brokers made representations that the' Miramar City Council had approved the PUD zoning of the property and that the 1971 “Sedel” PUD plan which allowed a density of 30 units per acre was likewise approved by the City of Miramar with no further approval of the City Council being necessary. The fact of the matter was that neither the ’68 nor the ’71 zoning plans had been approved by the city, which in turn did not approve the building permit or plat plan desired by the plaintiff.

As drawn, this complaint states a cause of action for the intentional tort of fraud and deceit as to the sellers and brokers. American International Land Corporation v. Hanna, 323 So.2d 567 (Fla.1975); Nantell v. Lim-Wick Construction Company, supra.

The real estate purchase agreement provided that the closing of the transaction was subject to verification by the purchaser and that the purchaser would have until October 16th, 1972 to make its own investigation to verify statements of fact set forth in paragraph 13(a) through (f) of the contract. The contract then provided:

“If any of the facts stated in sub-paragraphs 13(a) through (f) above are not true then purchaser, at its election, may close this transaction thereby waiving and extinguishing any and all objection or claim that said statement of facts is not true; or the purchaser may give written objection to the seller as to which of said statements of fact are not true and what particulars the same are not true, and may rescind the transaction ab initio and procure the return of the deposit unto the purchaser from the seller, in which event this contract shall be at an end and neither party shall have any other or further obligation to the other by reason of the making of this contract.
In any event the provisions of this paragraph and the representations of fact herein made shall not survive or extend beyond closing.”

It is our view that this complaint states a cause of action for an intentional tort and we feel that such exculpatory language, attempting to avoid liability for an intentional tort, is void. Fuentes v. Owen, 310 So.2d 458 (Fla. 3rd DCA 1975).

We do not believe that such a covenant of immunity prevents the plaintiffs from pursuing such an action founded on intentional tort. Oceanic Villas v. Godson, 148 Fla. 454, 4 So.2d 689 (1941). The distinction being made is that while a contract can by its terms be made incontestable on grounds of fraud, the principle still remains that a party cannot contract against liability for his own fraud in order to exempt him from liability for an intentional tort. Oceanic Villas v. Godson, supra.

We also feel that appellant’s argument that it was diverted from making further inquiry into the zoning because of the appellee’s representations of sophistication in zoning matters and assurances is sufficient to sustain the litigation at this stage because of the general proposition that where one is fraudulently induced to refrain from making an independent investigation the fact that he could have ascertained the falsity of the representation by making a reasonable inspection does not defeat the maintenance of his lawsuit. Walker v. Mebane, 279 So.2d 386 (Fla. 4th DCA 1973).

With respect to the allegations against the former mayor of Miramar, the former city attorney of Miramar, the city engineer and the City of Miramar, it is asserted that these representatives of government owed a duty to the appellant which was distinct from that owed to the public in general not to misinform or mislead them concerning zoning status of the property. The distinction is made in Florida First National Bank v. City of Jacksonville, 310 So.2d 19 (Fla. 1st DCA 1975) between legislative and judicial functions and executive or administrative functions. We rely on that case for authority that a municipality may be held liable for the torts of its public officers who act in an executive as opposed to a legislative capacity. The allegations of the complaint are to the general effect that the representations complained of occurred as a result of the executive or administrative capacities of these officials and that they owed a duty distinct from that they owed to the public in general.

Count Two of the complaint is in contract and seeks a recission. Where one is induced to enter a contract to purchase real property by fraudulent misrepresentations of the vendor, he may sue the vendor in equity for recission. Hauser v. VanZile, 269 So.2d 396 (Fla. 4th DCA 1972).

The construction of the waiver provision of that contract is a question of law for the Court. This complaint contains the allegation that the appellant was fraudulently induced to forego making any independent examination. While the covenant of immunity may have provided immunity for representations made in the written contract, appellant does allege in his complaint that there were representations apart from those appearing in the contract itself, thus presenting an important factual question.

We hold that under the facts alleged in this complaint, it would have been for the jury or at the very least by a summary judgment procedure to determine whether the appellant should have made more exhaustive investigation under the circumstances presented. The Motions to Dismiss were improvidently granted with respect to all defendants except as to Harry M. Rosen who was named as a defendant solely by virtue of his then present position as mayor of Miramar. The judgments are reversed and this cause remanded for further proceedings. The judgment as to appellee, Harry M. Rosen, is affirmed.

AFFIRMED IN PART, REVERSED IN PART.

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

      . Dated 1972.


author: MOORE, Judge.

text:
    James J. SHAUGHNESSY et al., Appellants, v. REC CENTERS, INC., a Florida Corporation, et al., Appellees.
    No. 76-2169.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.

      Alan S. Becker of Becker & Poliakoff, Ft. Lauderdale, for appellants.
    Eugene L. Heinrich and Paul D. Mark Lucas of McCune, Hiassen, Crum, Ferris & Gardner, Ft. Lauderdale, for appellees.
   MOORE, Judge.

We are called upon to determine the applicability of a 1933 Joint Resolution of the Congress of the United States of America, codified at 31 U.S.C.A. § 463 to an escalation provision contained in a 99-year recreation lease executed in conjunction with the development of a condominium association and in the purchase of individual units. Appellants sought relief from the escalation provision which provided:

“(b) In the event that the United States dollar should ever be officially devalued by the United States government or replaced by a regular species of a lesser value, then and in that event the rental to be paid by the lessee to the lessor or any purchase price to the lessor by the lessee shall be increased in proportion to said devaluation so that the rental to be paid to the lessor or the purchase price of the property covered by this lease to be paid to the lessor shall be the same in terms of actual value as the United States dollar was on January 1, 1967.”

In essence, appellants contend in their class action complaint for declaratory judgment that the above escalation clause is proscribed by 31 U.S.C.A. § 463, commonly known as the “Gold Clause” Resolution. Having refused to file an amended complaint, after opportunity to do so had been provided, appellants complaint was dismissed with prejudice for failure to state a cause of action. This appeal followed.

It is the position of the appellees that the escalation provision is merely an indexing device used to preserve the lessor’s relative purchasing power on his investment, and that it has no relationship whatsoever to the “Gold Clause.” In their brief they state, “The only standard to which the rent is to be adjusted is the actual (or purchasing) value of the United States dollar on January 1, 1967. It is to be measured by the amount of goods and services commanded by a 1967 dollar.” We seriously doubt that the effect of an increase in rent based upon an official devaluation of the United States dollar will produce the anticipated result. Nevertheless, the standard by which the rent is to be adjusted under the escalation provision is not the actual or purchasing value of the dollar on January 1, 1967 but, rather, solely the percentage by which the United States government may officially devalue the dollar. The question remains whether or not the “Gold Clause” is, or could be, applicable to the challenged provision. If so, the complaint stated a cause of action and it was error to dismiss it.

Numerous similar, but factually distinguishable, cases have interpreted the “Gold Clause.” Norman v. Baltimore and Ohio Railroad, Co., 294 U.S. 240, 55 S.Ct. 407, 79 L.Ed. 885 (1935); Holyoke Water Power Co. v. American Writing Paper Co., Inc., 300 U.S. 324, 57 S.Ct. 485, 81 L.Ed. 678 (1937); Guaranty Trust of New York v. Henwood, 307 U.S. 247, 59 S.Ct. 847, 83 L.Ed. 1266 (1939); Avery v. J. L. Hudson Company, 169 N.W.2d 666 (Mich.Ct. of App. 1969); Aztec Properties, Inc. v. Union Planters National Bank of Memphis, 530 S.W.2d 756 (Tenn. 1975); Equitable Life Assurance Society of the United States v. Grosvenor, 426 F.Supp. 67 (W.D. Tenn. 1976). It would serve no useful purpose to review those opinions. Suffice to say, the leading ease in this area is Norman, supra, the holdings of which were summarized by the Equitable Life Court as follows:

“(1) Congress has the right to establish the monetary system of this country and to establish a uniform currency; and (2) a valid reason for the Joint Resolution was to establish a uniform currency and parity between kinds of currency and to make that currency dollar for dollar, legal tender for the payment of all debts. Congress struck down gold clauses with the Joint Resolution because they interfered with its power to establish a uniform currency.” 426 F.Supp. at 73

Devaluation of currency is an economic tool utilized by governments in the complicated mechanisms of international monetary policies. One noted author defines devaluation as occurring when gold officially goes up in price relative to a specific currency, as from $21.00 an ounce to $35.00 an ounce. Samuelson, Economics, pg. 627 (8th Edition, 1970). If this definition is a currently proper one and if it is that which was contemplated by the parties to the escalation clause involved herein, then the increase in future rental payments would be based upon an amount of money measured by gold, or by a particular kind of coin or currency, to wit: a currency based upon the amount of gold that that currency will purchase.

We are unable to find any cases dealing with the specific provision here involved; however, the Supreme Court of Tennessee in Aztec, supra, determined that a provision for repayment of a loan “in constant United States dollars adjusted for inflation (deflation)” was violative of the Joint Resolution of Congress of June 5, 1933. In striking down that provision, the Tennessee Supreme Court recognized the legitimacy of indexing in modern business transactions and limited its holding to a prohibition against indexing the principal of a promissory note. Aztec, supra, at 761.

The appellants have alleged in their complaint that the escalation clause contained in their lease violates the Joint Resolution of Congress of June 5, 1933. Whether that clause is one which, by definition and in the contemplation of the parties, (1) requires payment in gold, or (2) requires payment in a particular kind of coin or currency, or (3) requires payment in money of the United States measured by gold or by a particular kind of coin or currency can only be determined upon appropriate proof and appellants should have the opportunity to present that proof.

We, therefore, hold that it was error to dismiss the complaint for failure to state a cause of action and, accordingly, REVERSE the decision of the trial court and REMAND this cause for further proceedings consistent herewith.

REVERSED and REMANDED.

CROSS and ANSTEAD, JJ., concur.

      . 31 U.S.C.A. § 463
      “(a) Every provision contained in or made with respect to any obligation which purports to give the obligee a right to require payment in gold or a particular kind of coin or currency, or in an amount in money of the United States measured thereby, is declared to be against public policy; and no such provision shall be contained in or made with respect to any obligation hereafter incurred. Every obligation, heretofore or hereafter incurred, whether or not any such provision is contained therein or made with respect thereto, shall be discharged upon payment, dollar for dollar, in any coin or currency which at the time of payment is legal tender for public and private debts. Any such provision contained in any law authorizing obligations to be issued by or under authority of the United States, is hereby repealed, but the repeal of any such provision shall not invalidate any other provision or authority contained in such law.
      (b) As used in this section, the term ‘obligation’ means an obligation (including every obligation of and to the United States, excepting currency) payable in money of the United States; and the term ‘coin or currency’ means coin or currency of the United States, including Federal Reserve notes and circulating notes of Federal Reserve banks and national banking associations.”


text:
    John Michael BUNTING, Appellant, v. STATE of Florida, Appellee.
    No. 76-2326.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Joseph Jordan, of Bailey & Jordan, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

This is an appeal from a judgment of conviction and sentence for the crime of aggravated battery. In his sentence the trial court indicated the appellant had pled guilty to the crime of aggravated battery when, in fact, he had been found guilty by a jury and in addition to a period of incarceration and fine the court required the appellant to make restitution to the victim for the victim’s medical expenses. The trial court also failed to cause appellant’s fingerprints to be affixed to the written judgment of guilt as required by Section 921.-241(1), Florida Statutes (1977). We agree with appellant’s , contentions that the trial court erred in sentencing appellant and reverse.

The written judgment of guilt and sentence should reflect the true facts of the case. In this instance, the written sentence should be corrected to reflect a finding of guilt by a jury as opposed to appellant’s having pled guilty.

Courts have no authority to exceed the punishment for criminal conduct as provided by the Legislature. With the exception of those matters which are within the inherent jurisdiction of the judiciary the determination of that conduct which shall constitute criminal conduct, and the punishment therefore, is the sole prerogative of the Legislative function of government and the judiciary, in sentencing an individual, must remain within the parameters established by the Legislature. While the trial courts enlightenment in this cause is noteworthy in view of recent legislation providing for the requirement of restitution in certain cases, such a requirement was not a prescribed means of punishment at the time of the commission of the crime in this case. It was therefore error to impose such a condition upon the appellant. See Holmes v. State, 342 So.2d 134 (Fla. 1st DCA 1977).

Accordingly, the judgment of guilt and sentence is reversed and this cause is remanded to the trial court with instructions to readjudicate the defendant indicating a finding of guilt by the jury, eliminating the requirement of restitution, and obtaining the fingerprints of appellant on the written judgment of guilt as prescribed by Section 921.241(1), Florida Statutes (1977).

REVERSED and REMANDED.

CROSS and LETTS, JJ., concur.


text:
    Lloyd L. NEEL and Nickey B. Neel, Appellants, v. SUN BANK OF EAST ORLANDO, N. A., the Rovac Corporation, James A. Burzee, Southeast First National Bank of Maitland, Appellees.
    No. 76-2637.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Ronald H. Roby of Roby & O’Neill, P. A., Orlando, for appellants.
    Gordon H. Harris of Gray, Adams, Harris & Robinson, Orlando, for appellee James A. Burzee.
   PER CURIAM.

AFFIRMED.

CROSS, ANSTEAD and LETTS, JJ., concur.


text:
    Robert HOUSTON, Appellant, v. STATE of Florida, Appellee.
    No. 77-707.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Robert Houston, pro se.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

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


text:
    Etta LEWIS, Appellant, v. RAPALLO SOUTH, INC., etc., Appellee.
    Nos. 77-898, 77-1670.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Rehearing Denied Sept. 12, 1978.
    Ronald Sales, Palm Beach, for appellant.
    F. Gregory Barnhart of Levy, Plisco, Perry, Shapiro, Kneen & Kingcade, P. A., Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

The motions for attorneys’ fees on appeal by both appellant and appellee are hereby DENIED.

LETTS, MOORE and BERANEK, JJ., concur.


text:
    Leslie GRZELAK and Michael Mackover, Appellants, v. STATE of Florida, Appellee.
    Nos. 77-989, 77-1388.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal by one of two co-defendants from an adjudication of guilt after jury verdict. Appellant questions the Court’s allowing two impeachment witnesses to testify who were not disclosed in pretrial discovery procedures. These witnesses were pure impeachment witnesses, and their testimony became relevant only subsequent to the testimony of the one defendant who took the stand. There was no reason to disclose the names of these witnesses prior to trial because the State could not have known that their testimony would be relevant until this defendant testified. However, in accord with Grant v. State, 354 So.2d 80 (Fla. 4th DCA 1978), the failure to supply the names should be enquired into. In this case such was done.

Appellant also questions the Court’s charge on attempts and the failure to grant a severance. Both of these assertions are without merit and the actions of the trial court are affirmed.

LETTS, MOORE and BERANEK, JJ., concur.


text:
    In re NORTH PALM BEACH HEIGHTS WATER CONTROL DISTRICT, a Drainage District.
    No. 77-1279.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Charles C. Chillingworth, of Chilling-worth & Considine, Palm Beach, for appellant.
    Robert Grafton, Thomas J. Schwartz, John H. Wheeler, Stephen A. Walker, West Palm Beach, for appellee, South Florida Water Water Management Dist.
    Marion D. and Frank L. Abbott, appel-lees, in pro. per.
   PER CURIAM.

AFFIRMED.

LETTS, MOORE and BERANEK, JJ., concur.


text:
    Grady L. HARPER and Bonnie T. Harper, his wife, Appellants, v. PAN AMERICAN BANK OF ORLANDO, N. A., Julian P. Myrick, as Trustee in Bankruptcy for Peachtree Development Corporation, et al., Appellees.
    No. 77-1370.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Johnie A. McLeod, Apopka, for appellants.
    Robert D. Gatton, of Johnson, Motsinger, Trismen & Sharp, Orlando, for appellees.
   PER CURIAM.

AFFIRMED.

LETTS, MOORE and BERANEK, JJ., concur.


text:
    Richard WATKINS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1382.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Robert L. Bogen, Asst. Atty. Gen. and Kenneth G. Spillia, Legal Intern, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

CROSS, LETTS and MOORE, JJ., concur.


text:
    Herbert MAGNES and Martin Magnes, Appellants, v. Michael BLOOM et al., Appellee.
    No. 77-1468.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Clair White and Eugene L. Heinrich, of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Lauderdale, for appellants.
    Stephen N. Lipton, of Becker, Poliakoff & Sachs, P. A., Miami Beach, for appellees.
   PER CURIAM.

AFFIRMED.

DOWNEY, C. J., BERANEK, J., and BAKER, JOSEPH P., Associate Judge, concur.


author: DOWNEY, Chief Judge.

text:
    SHERBA BROS., INC., a Florida Corporation, Petitioner, v. James A. CAMPBELL, Charles Anthony Farina and Robert B. Turner, Respondents.
    No. 77-1610.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.

      John Greenfield of the Law Offices of Leo Greenfield, North Miami, for petitioner.
    Steven H. Parton, Tallahassee, for respondents.
   DOWNEY, Chief Judge.

Petitioner seeks review of a final agency order of the Division of Labor of the Florida Department of Commerce, which ordered petitioner to pay respondents certain sums found to be due under the prevailing wage rate on public work projects in Dade County.

Petitioner was the electrical, plumbing and air-conditioning sub-contractor for the State Project on the Florida International University Interama Campus in Dade County. Since the project exceeded $5000 in value, the Prevailing Wage Law applied requiring that certain minimum wages be paid to all laborers, mechanics and apprentices on the job.

Respondent Campbell was employed by petitioner as a “helper,” Farina as a “first class helper” and Turner as a “journeyman electrician” and later was given responsibility as a foreman. Each of the respondents was paid less per hour than was required by the prevailing schedule of wages applicable to the specified category of activity most nearly describing the respondent’s work. Thus, the work performed by Campbell and Farina was similar to work done by laborers. Turner’s work was that of an electrician and a foreman.

Each of the respondents learned he was being underpaid prior to filing his claim, yet all continued for a time to accept the wages paid by petitioner. Petitioner contends they thus waived the statutory requirement. Secondly, petitioner argues that there is no substantial competent evidence to support the finding that respondents’ work fell into the categories determined by the agency.

We have reviewed the record presented and find adequate support for the conclusion of the Department, and we reject the waiver argument. The Legislature determined it to be the policy of the State to require the minimum wages be paid on public work projects commensurate with the prevailing rate of wages in the area in which the work is being performed. To effectuate its purpose the Act is to be liberally construed. Acceptance of petitioner’s contention would subvert the purpose of the Act simply by labeling job descriptions differently than as specified in the prevailing wage schedule. The evidence here supports a determination that Campbell and Farina were entitled to laborers’ wages and that Turner was entitled to an electrician-foreman’s wages.

Since the Legislature has mandated that minimum wages shall be paid on public works the contractor cannot assert waiver as a defense to defeat this legislative policy. “The doctrines of estoppel and waiver do not in general apply in transactions that are forbidden by statute or that are contrary to public policy.” Montsdoca v. The Highlands Bank & Trust Company, 85 Fla. 158, 95 So. 666 (1923). Accordingly, the decision requiring payment of additional wages to respondents is in our judgment supported by the record.

Section 215.19, Florida Statutes (1975), provides in pertinent part that upon failure of a contractor to pay the prevailing wages an aggrieved employee can make such fact known to the contracting authority and the authority shall withhold an amount equal to the claim until final determination thereof. This procedure was followed in this case and the contracting authority withheld from petitioner the amount of respondents’ claims. The statute also provides that upon settlement of the dispute or determination of the matter by the Division of Labor the contracting authority shall pay the amount due to the complaining employee and pay the balance to the contractor. Here the order under review directs the petitioner to pay the entire sum found due to respondents. Respondents candidly admit that portion of the order should be modified.

Accordingly, the writ of certiorari is granted and the order under review is modified so as to direct the contracting authority to pay to the respondents out of the petitioner’s funds withheld by the contracting authority the sums found to be due respondents and pay the balance of any such funds to petitioners.

CROSS and LETTS, JJ., concur.

      . Section 215.19, Florida Statutes (1975).

      . Section 215.83, Florida Statutes (1975).


text:
    Roger R. HAMM, Appellant, v. STATE of Florida, Appellee.
    No. 77-1682.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

CROSS, LETTS and MOORE, JJ., concur.


author: PER CURIAM. DAUKSCH, Judge,

text:
    The YACHT AND COUNTRY CLUB, INC., a corporation, Appellant, v. Fred S. HINKLE et al., Appellees.
    No. 77-2392.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Richard V. Neill of Neill, Griffin, Jeffries & Lloyd, Fort Pierce, for appellant.
    William C. Owen, Jr., of Cone, Owen, Wagner, Nugent, Johnson & McKeown, Te-questa, for appellees.
   PER CURIAM.

AFFIRMED.

LETTS and MOORE, JJ., concur.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge,

concurring specially:

This is a proper class action case because the common question concerning entitlement to golf privilege runs throughout and affects every member of the class. Although there are questions collateral to the main issue, which questions are, in some cases, unique to each member of the class, there is one common issue which can be resolved for all members of the class. Frankel et al. v. City of Miami Beach, 340 So.2d 463 (Fla.1976) gave me the most guidance in reaching my decision. In fact, without it I might have come to a contrary decision.


text:
    Moise RIVERA, a/k/a Moses Rivera, Appellant, v. STATE of Florida, Appellee.
    No. 78-39.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Gary I. Zwickel of Reniek, Zwickel & Gross, Lake Worth, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

CROSS, LETTS and MOORE, JJ., concur.


text:
    Peter Rocco MAZZEO, Appellant, v. STATE of Florida, Appellee.
    No. 78-475.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Kirk N. Kirkconnell of Muller & Kirkcon-nell, P.A., Winter Park, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED

CROSS, LETTS and MOORE, JJ., concur.


text:
    Sherry POLLACK, Appellant, v. Robert W. POLLACK, Appellee.
    No. 78-695.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Selig I. Goldin of Goldin & Cates, Gaines-ville, for appellant.
    Michael E. Hamlin, Orlando, for appellee.
   PER CURIAM.

Affirmed.

DOWNEY, C. J., and CROSS and BERA-NEK, JJ., concur.


text:
    Gary Jerome BELL, Petitioner, v. STATE of Florida, Respondent.
    No. 78-878.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Ronald S. Webster of Whittaker, Pyle, Stump & Webster, Orlando, for petitioner.
    John R. Heffernan, Jr., Asst. State’s Atty., Orlando, for respondent.
   MOORE, Judge.

This is a petition for writ of certiorari and, in the alternative, a petition for writ of mandamus wherein petitioner contests the validity of an order denying his motion for an adversary preliminary hearing. We treat the petition as one for a writ of common law certiorari.

Petitioner was arrested and charged with several felony offenses, including attempted murder in the first degree, aggravated battery, resisting arrest with violence and delivery of cannabis. Pursuant to Fla.R. Crim.P. 3.131(a)(1) petitioner appeared before a magistrate who determined in a non-adversary proceeding that probable cause existed, and that the petitioner should be held to answer the charges. Thereafter, petitioner was released on bond. The state failed to file an information or indictment officially charging the petitioner with the crimes specified within 21 days from the date of arrest; but did file such an accusatory pleading on the 23rd day. Petitioner contends that he is entitled to an adversary preliminary hearing pursuant to Fla.R. Crim.P. 3.131(b)(1). As we can see no useful purpose to be served by such an adversary hearing in view of our present speedy trial rules and liberal discovery rules we, nevertheless, reluctantly agree with petitioner.

The respondent, State, contends that no undue restraint has been placed upon the petitioner’s liberty because he was released on bond; that Fla.R.Crim.P. 3.131(b)(1) exceeds the dictates of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); that the relief sought has been realized through the non-adversary probable cause determination, bonding procedures and the taking of discovery depositions; and that the error, if any, is non-fundamental resulting in no irrevocable injury to petitioner.

We agree with respondent’s position; however, it is clearly permissible for a state to expand upon the rights of individuals and the Supreme Court of Florida appears to have done so. The sole question before us is whether or not Fla.R.Crim.P. 3.131(b)(1) applies to one who has already obtained a non-adversary probable cause determination, and who is not in custody. We hold that it does so apply.

In the first section of Rule 3.131 the Supreme Court has clearly distinguished the rights of those in custody from the rights of those on pre-trial release. It has not done so in the second section of the Rule which gives all defendants a right to an adversary preliminary hearing when the state fails to file an information or an indictment within 21 days from the date of arrest. This right is not eliminated upon the filing of an information or indictment. Due process requires that, at some point in time, a defendant has the right either to be formally charged with the commission of crime or removed from under the cloud of informal accusations. Our Supreme Court has arbitrarily determined that period of time to be 21 days following arrest after which the right to an adversary preliminary hearing springs into existence, and cannot be eliminated by the subsequent filing of a formal accusatory pleading. .

The denial of an adversary hearing under the circumstances of this case constitutes a departure from the essential requirements of law for which no remedy is available upon plenary appeal.

We are fully cognizant of Cameron v. State, 338 So.2d 817 (Fla.1976) which was decided subsequent to the adoption of the present rule. That case, however, was decided on its own peculiar facts and involved a defendant who had entered a plea of nolo contendere subsequent to being denied an adversary preliminary hearing. See Cameron v. State, 291 So.2d 222 (Fla. 4th DCA 1974).

Certiorari is GRANTED, the temporary stay order issued by this Court is vacated and this cause is REMANDED with instruction to grant petitioner’s motion for preliminary hearing.

ANSTEAD and LETTS, JJ., concur.


text:
    Irene BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 78-1037.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Irene Brown in pro per.
    Robert Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY, C. J„ and CROSS and LETTS, JJ., concur.


text:
    Michael Wendell ASBURY, Appellant, v. STATE of Florida, Appellee.
    No. 78-1219.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Michael W. Asbury, in pro per.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED.

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


text:
    Charles R. BURRELL, Appellant, v. STATE of Florida, Appellee.
    No. 78-1451.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Rehearing Denied Sept. 13, 1978.
    Charles R. Burrell in pro per.
    No appearance for appellee.
   PER CURIAM.

Affirmed.

DOWNEY, C. J., and CROSS and BERA-NEK, JJ., concur.


text:
    VENUSA EXPORT & IMPORT INC., Appellant, v. CAVICO ALAMO AIRCRAFT SALES, INC., a Florida Corporation, et al., Appellee.
    No. 77-2632.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Milton R. Wasman of Bruckner, Greene & Manas, Miami, for appellant.
    Robert E. Huebner of Huebner, Shaw & Bunnell, P. A., Fort Lauderdale, for appel-lee-Cavico Alamo.
   DOWNEY, Chief Judge.

When appellee Cavico Alamo Aircraft Sales, Inc., failed to timely respond after service of summons the Clerk entered a default. Thereafter, but before judgment was entered upon said default, Cavico moved to set aside the default with a supporting affidavit and proposed answer setting forth various defenses among which was the defense that appellee was a distributor only and that it neither manufactured, installed nor repaired the engine in question. The affidavit states that after Cavico conferred with the engine manufacturer, an unserved defendant, Cavico sent the suit papers to the manufacturer under the impression the manufacturer was going to handle the defense.

The trial court granted Cavico’s motion to vacate the default entered by the Clerk. The appellant assigns that judicial act as error, but we disagree. On this record we find the trial judge was acting well within his discretion.

Accordingly, the order appealed from is affirmed.

AFFIRMED.

CROSS and ANSTEAD, JJ., concur.


text:
    Christopher David WHITE, a minor, by his next friend and mother, Karen Johnson, and Karen Johnson, Individually, Appellant, v. COWLES FLORIDA BROADCASTING, INC., and Sonny Barrs, Appellees.
    No. II-331.
    District Court of Appeal of Florida, First District.
    Aug. 9, 1978.
    Stewart Cohen, of Meyers, Mooney & Adler, Orlando, for appellant.
    Harry K. Anderson, of Anderson & Lek-lem, Orlando, for appellees.
   PER CURIAM.

Appellants maintain on this appeal that the trial court abused its discretion in taxing costs against them pursuant to the offer of judgment rule, Fla.R.Civ.P. 1.442. They further urge that the amount of the costs awarded was excessive. We disagree and affirm on both points. Appellants’ first argument, that taxation of costs was unjustified because the offers by appellee were made to them jointly rather than individually, has recently been resolved in appellees’ favor by this court’s opinion in Tucker v. Shelby Mutual Insurance Co. of Shelby, Ohio, 343 So.2d 1357 (Fla. 1st DCA 1977).

Appellants also contend, however, that the amount of the costs was excessive because it included the expense of appellees’ counsel’s air fare to an out-of-state deposition. The deposition was initiated by appellants’ counsel after appellants had refused two offers of judgment which exceeded the verdict eventually returned by the jury after trial. We believe that the purpose of Rule 1.442, to encourage settlements and eliminate the costs and delays of trials, would be affronted by reversing the cost award to appellees in these circumstances.. Appellees made two good faith attempts at settlement and appellants chose to reject those attempts. There was no abuse of discretion in requiring appellees to bear the costs of that choice.

The judgment is AFFIRMED.

McCORD, Acting C. J., MILLS and ERVIN, JJ., concur.


author: GRIMES, Chief Judge.

text:
    William M. RICKARD, Appellant, v. STATE of Florida, Appellee.
    No. 78-578.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 1978.
    Jack 0. Johnson, Public Defender, and James R. Wulchak, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

This case involves an appeal from the denial of a motion to suppress which was reserved at the time of a nolo contendere plea to charges of manufacture and possession of more than five grams of marijuana.

Appellant’s neighbor, Martin, advised Detective Fitzgerald that appellant was growing some plants in his back yard which he believed to be marijuana. The plants could not be observed from Martin’s house because of a storage shed and plywood partition between Martin’s property and the point where the plants were located. Appellant’s back yard was enclosed with a chain link fence, but there was no other impediment to a view of the plants. When Fitzgerald arrived Martin took him to a citrus grove on the other side of appellant’s house for a clear view of his back yard. From a vantage point about 50 feet away, Fitzgerald observed several plants which from his experience he knew to be marijuana.

The next morning Fitzgerald returned to the grove and watched the plants for a period of time with the hope of observing appellant in the act of watering the plants. When appellant did not appear, Fitzgerald went to appellant’s home and told appellant that he was under arrest. Appellant requested that he be allowed to retrieve some money from some trousers lying on the floor. As appellant reached into the pocket, Detective Page, who had accompanied Fitzgerald, became concerned that there might be a weapon in the pocket. He put his hand in the pocket and pulled out a small baggie of marijuana. The detectives then went on to seize the plants in the back yard.

There was nothing wrong with Detective Fitzgerald having viewed the marijuana plants from the adjacent grove. State v. Ashby, 245 So.2d 225 (Fla.1971). Since he was acting within the scope of his duties we doubt if it could be said that he was trespassing, but even if he was this would be irrelevant. State v. Belcher, 317 So.2d 842 (Fla. 2d DCA 1975); Cobb v. State, 213 So.2d 492 (Fla. 2d DCA 1968); Boim v. State, 194 So.2d 313 (Fla. 3d DCA 1967); Phillips v. State, 177 So.2d 243 (Fla. 1st DCA 1966); see Giacona v. United States, 257 F.2d 450 (5th Cir. 1958); People v. Superior Court for County of Los Angeles, 37 Cal.App.3d 836, 112 Cal.Rptr. 764 (Cal.App.2d 1974). Thus, Detective Fitzgerald’s view of the marijuana plants, coupled with Martin’s report, gave the officers probable cause to arrest the defendant. Section 901.15, Florida Statutes (1975). It was in the course of this legal arrest that the baggie of marijuana was discovered in the trousers’ pocket. The seizure of the baggie can be upheld as an appropriate search incident to the arrest. Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977).

The seizure of the marijuana plants may stand on a different footing. Under the rationale of our recent decision in Morsman v. State, 360 So.2d 137 (Fla. 2d DCA, filed June 28, 1978), since there were no exigent circumstances, the police were not entitled to go upon the appellant’s premises to seize the marijuana plants without a search warrant. The problem facing this panel is that we have some qualms over certain statements in the Morsman opinion, and our attention has been directed to several Florida cases which appear to conflict with Morsman.

In the first place, Morsman seems to say that the defendant had an expectation of privacy in something which was in plain view in his back yard. It may be that under any view the decision was technically sound because the state failed to show that the marijuana was actually seen in plain view by the officer when he was not on appellant’s property. Nonetheless, we have serious reservations about the proposition that a person has an expectation of privacy in contraband in plain view in a back yard protected only by a chain link fence.

Furthermore, we now believe that the holding that a plain view seizure cannot be made without a warrant in the absence of exigent circumstances conflicts with several recent Florida cases. For example, in Hornblower v. State, 351 So.2d 716 (Fla. 1977), our supreme court said at page 718:

Excluding the consent and plain view situations, which remove the need for a warrant, every “exception” to the warrant requirement derives from an emergency situation, where to obtain a search warrant would defer police activity that must be performed punctually to be effective. .

At the end of this sentence the reader is referred to a footnote which read as follows:

The “Plain View” doctrine has frequently been considered an exception to the warrant requirement. In reality, materials that are seized because they are in plain view of an officer who observes from a location where he has a legal right to be are not subject to Fourth Amendment protection because their exposure implies that the possessor has no expectation of privacy regarding those articles. Similarly, one who consents to a warrantless search relinquishes any expectation of privacy which he might have as to the articles being searched.

The facts of Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA 1978), were practically identical to those in the instant case. The defendant’s next door neighbor saw what he suspected to be marijuana plants in the defendant’s back yard. An officer came to her home from where he could see the plants and from his experience he believed them to be marijuana. The yards were separated by a chain link fence. The officer knocked at the defendant’s residence, and when no one answered he walked around to the back yard and seized the plants. The seizure was upheld in spite of the fact that the officer had no warrant. Speaking for the court, Judge Alderman said:

In the present case the defendant kept marijuana plants in open view in his backyard. These plants were clearly visible to anyone who might have occasion to be in his neighbor’s yard. Their exposure implies that the defendant had no expectation of privacy regarding these plants. Officer McDaniel had the legal right to be in the neighbor’s yard and to look across the fence and see what there was for him to see. Having observed the marijuana plants, and having been informed by the neighbor that the defendant was the one that lived in the house and took care of the plants, the officer had probable cause to believe that the defendant was committing a felony. Consequently the officer had the right to arrest the defendant without a warrant. Section 901.15, Florida Statutes (1975). The fact that the defendant was not at home when the officers went to his house did not prevent the officers from seizing without a warrant the marijuana plants that were in the backyard. The plants were contraband and were initially observed in plain view by Officer McDaniel from a location where he had a legal right to be. There was no search and no unreasonable governmental intrusion on the defendant’s privacy. The plants, under the circumstances of this case, are not subject to Fourth Amendment protection. The trial court properly denied the defendant’s motion to suppress. Lightfoot v. State, supra, at 334.

Finally, we refer to our own decision in Giannetta v. State, 296 So.2d 654 (Fla. 2d DCA 1974). There the resident manager of an apartment complex saw what appeared to be a marijuana plant in the defendant’s apartment through a sliding glass door. He called the police and led them to a vacant apartment from which they could see the marijuana plant in plain view. The police then went to the apartment and seized the marijuana. This court affirmed the denial of a motion to suppress.

We concede that there is substantial support for the views expressed in Mors-man in jurisdictions outside the State of Florida. E. g., Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974); State v. O’Herron, 153 N.J.Super. 570, 380 A.2d 728 (1977); see plurality view of U. S. Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), as quoted in Morsman. Some of the cases make a distinction based upon whether the officers’ original plain view was predicated upon an intentional intrusion into a constitutionally protected area. See Brown v. State, 292 A.2d 762 (Md.Ct.Spec.App.1972). Nevertheless, it appears that Morsman stands alone among Florida decisions. In deference to stare decisis, we have elected to follow Morsman and quash the seizure of the marijuana plants. However, in view of the confusion and because of the frequency with which this issue is likely to arise, we hereby certify to the Supreme Court as being of great public interest the following question:

WHERE CONTRABAND IS SEEN IN PLAIN VIEW BY POLICE IN THE DEFENDANT’S BACK YARD FROM A POINT ADJACENT TO THE PROPERTY, MAY THE POLICE SEIZE THE CONTRABAND WITHOUT A WARRANT IN THE ABSENCE OF EXIGENT CIRCUMSTANCES?

The order denying suppression with respect to the marijuana plants is reversed. In all other respects it is affirmed. Obviously, the charge of manufacturing marijuana cannot stand, and since we cannot tell whether the marijuana in the baggie exceeded five grams, the entire judgment must be reversed and the case remanded for further proceedings.

HOBSON and RYDER, JJ., concur.


author: SMITH, Acting Chief Judge.

text:
    JIM WALTER HOMES, INC., Appellant, v. C. L. JOHNS et al., Appellees.
    No. HH-272.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1978.
    Harry M. Hobbs, Tampa, for appellant.
    Ernest A. Sellers of Airth, Sellers & Lewis, Live Oak, for appellee Johns.
    Walter R. Carfora, Live Oak, for appellee John Brown.
   SMITH, Acting Chief Judge.

This appeal continues the controversy we entered upon in Brown v. Johns, 312 So.2d 526 (Fla. 1st DCA 1975). Appellant Jim Walter built a home for the Browns, through error by Jim Walter, on land owned by Johns. In our prior decision we remanded the case for adjudication of Jim Walter’s counterclaim for removal of the house, which allegedly was placed on Johns’ property by mutual mistake. On proper pleadings the trial court has now adjudicated the claims of the various parties, with the result that the court found that Jim Walter recklessly built the Brown house on Johns’ land after being placed on notice of Johns’ ownership. Based on extensive findings of fact, supported by substantial competent evidence, the court denied Jim Walter’s claims for return of the house from Johns or for enforcement of the note and mortgage against the Browns. No error appears. See Johns v. Gillian, 134 Fla. 575, 184 So. 140 (1938).

AFFIRMED.

MELVIN and BOOTH, JJ., concur.


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    J. N. W., Appellant, v. STATE of Florida, Appellee.
    No. II-471.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1978.
    Michael J. Minerva, Public Defender, Stephen Lindsey Gorman and Sidney L. Matthew, Special Asst. Public Defenders, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Martha J. Cook, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Acting Chief Judge.

A juvenile appeals from a conviction for uttering a forged instrument, Section 831.-02, Florida Statutes (1977). It is contended in his behalf that there was no evidence, direct or circumstantial, that he knew the check he presented for cash was forged. We find, on the contrary, that the circumstantial evidence of appellant’s guilty knowledge was sufficient to withstand his motion for judgment of acquittal. Viewing the evidence in a light most favorable to the state, it appears that appellant presented a Coastal Hay Company payroll check, payable to Sammy Helms, at the Wagon Wheel Lounge. The check was forged and Sammy Helms was, for all purposes here, fictitious. The check bore the purported endorsement of “Sammy Helms” when appellant presented it; and appellant’s presentation of and statements concerning the check intimated to the recipient that he, appellant, was the payee, an employee of the maker, and that the endorsement was his own. If the jury could find that appellant’s presentation and statements concerning the check were calculated to intimate false assurances, the jury could properly have found that 'appellant had guilty knowledge that the check was a forgery. We need not consider whether “mere possession” of the forged instrument gave rise to an inference of guilty knowledge sufficient for the jury. It may well be doubted that there are or can be well-tried prosecutions of guilty defendants in which “mere possession” is all that is shown; but it is sufficient for present purposes that this is not such a case.

There was no error in the order for restitution prior to release of appellant by the Division of Youth Services. Section 39.-ll(2)(f), Florida Statutes (1977).

AFFIRMED.

ERVIN and BOOTH, JJ., concur.


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    Shirley TAPLIN, Appellant, v. Sol TAPLIN, Appellee.
    No. 77-1742.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.
    Snyder, Young, Stern, Barrett & Tan-nenbaum and William L. Rogers, North Miami Beach, for appellant.
    Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The appellant wife appeals an order denying her petition for modification and her petition for attorney’s fees. She urges error upon the argument that the manifest weight of the evidence established her need for, and the husband’s ability to respond to, an increase in alimony. We find that no error has been shown. See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); and Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

Affirmed.


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    WHISPERING PINES LAKE OWNERS ASSOCIATION, Petitioner, v. Paul DEMOSTHENIS and Stella Demosthenes, a/k/a Stella Demosthenis, his wife, Respondents.
    No. 78-297.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.
    Richard F. Hayes, Coral Gables, for petitioner.
    Paul Demosthenis and Stella Demosthen-is, in pro. per.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

The petition for writ of certiorari filed by Whispering Pines Lake association is granted, the order under review is quashed, and the cause is remanded to the circúit court below with directions to (1) reverse the final judgment entered in the county court herein; and (2) order a new trial in the instant county court action. In our view, the circuit court departed from essential requirements of law in affirming the county court judgment because there is no evidence in the record upon which the county court could have directed a verdict at the trial of this cause in favor of the respondents Paul and Stella Demosthenis. See: Cohen v. State, 99 So.2d 563, 565 (Fla.1957); Hagan v. Sabal Palms, Inc., 186 So.2d 302, 310 (Fla.2d DCA 1966); Newman v. State, 174 So.2d 479, 481 (Fla.2d DCA 1965).


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    Robert J. PELLEGRINO, Appellant, v. The MARATHON BANK, a Florida Banking Corporation, Appellee.
    No. 78-681.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.

      Johnston, Burnett, Johnson & Pondolfi and Franklyn A. Johnson, Jr., Fort Myers, for appellant.
    Cunningham, Albritton, Bee, Lenzi & Schiller and Peter Joseph Lenzi, Jr., Marathon, for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978); Smiles v. Young, 271 So.2d 798, 802 (Fla. 3d DCA 1973).


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    Diane HICKS, Petitioner, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent.
    No. KK-231.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1978.
    Diane Hicks, in pro per.
    Jon W. Searcy, District Legal Counsel, Dept, of Health and Rehabilitative Services, De Funiak Springs, for respondent.
   PER CURIAM.

The petition for writ of mandamus and response having been considered, the petition is DENIED.

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


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    Robert R. FRANK, Appellant, v. SOUTHEAST FIRST NATIONAL BANK OF MAIMI, f/k/a the First National Bank of Miami, a United States banking associate, Appellee.
    No. 77-2387.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Rehearing Denied Sept. 7, 1978.
    Frank, Strelkow & Gay, North Bay Village, for appellant.

      Steel, Hector & Davis and Donald M. Middlebrooks, Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The defendant, Robert R. Frank, appeals a final judgment for the plaintiff Southeast First National Bank of Miami. The judgment was entered after a trial before the court without jury. The complaint by the Bank was for the recovery of money paid to the defendant by mistake. The defendant pled an estoppel to collect the money because of an alleged change in his position in reliance upon the payment. The issue was entirely factual and in the absence of a point directed either to eviden-tiary rulings or claimed procedural errors, the judgment of the court is not subject to reversal unless the record is such that it shows that reasonable men could not have failed to believe the defense proved. See Goldberger v. State, 144 So.2d 875 (Fla.3d DCA 1962); and see Allied Chemical Corporation v. Eubanks Industries, Inc., 155 So.2d 740, 742 (Fla.3d DCA 1963).

Our review of the record finds ample support for the trial judge’s finding that the defense was not established.

Affirmed.


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    Bob E. BENDER, Appellant, v. Dolphfoline BENDER, Appellee.
    No. 77-1805.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Rehearing Denied Sept. 15, 1978.
    Markus, Winter & Spitale and Laurie S. Silvers, Miami, for appellant.
    Goodman, Dunberg & Hochman and Richard G. Dunberg, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This appeal is by the husband from that portion of a final judgment of dissolution of marriage relating to an award of lump sum and permanent alimony to the wife.

It is appellant’s contention that the trial court abused its discretion in awarding the wife the marital home as lump sum alimony and $140.00 per week permanent alimony because the award was not based on the appellant’s financial ability to pay such an award.

An appellate court will not interfere in the determination of the amount of alimony in the absence of a clear showing of an abuse of discretion.

The appellant has failed to demonstrate that the trial court abused its discretion. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Herzog v. Herzog, 346 So.2d 56 (Fla.1977).

Affirmed.