author: BOOTH, Judge.

text:
    William Harris SHARPE, Appellant, v. STATE of Florida, Appellee.
    No. II-183.
    District Court of Appeal of Florida, First District.
    April 17, 1979.
    Rehearing Denied May 21, 1979.
    Virlyn B. Willis, Jr., Lake City, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   BOOTH, Judge.

This cause is before the Court on appeal from the judgment of the Circuit Court, Hamilton County, entered on a jury verdict finding Sharpe guilty of possession of more than 100 pounds of cannabis, and sentencing him to five years imprisonment and a ten thousand dollar ($10,000) fine. He urges as error the trial court’s failure to suppress evidence taken in a search of his truck.

The facts are that Sharpe stopped his rental truck at an agricultural inspection station on an interstate highway, but when told by a uniformed inspector that he wished to inspect the vehicle, Sharpe advised that his girlfriend had the key to the lock securing the rear door of the truck and she was driving another vehicle ahead of him on the highway. The inspector asked Sharpe what was in the truck and Sharpe answered that he had some furniture from his girlfriend’s apartment. The inspector then requested Sharpe to pull his truck over to the dock and wait. At one point, the inspector suggested that if Sharpe couldn’t get the truck open, and if his girlfriend didn’t come back, that he could get a hammer for Sharpe to break the lock. Sharpe stated it was a new lock that he didn’t want to break. He indicated his girlfriend would come back. At no time did Sharpe refuse to allow the truck to be searched.

Some minutes later the inspectors noticed that the back of the truck was open and Sharpe was standing next to it. One of the inspectors went over and looked inside the truck and observed furniture and an old motorcycle. Shortly after he entered the back of the truck to look further, he heard another inspector call that Sharpe was gone. Sharpe was seen running across an open field. At that point all inspection of the vehicle was stopped. The inspectors contacted the highway patrol and the sheriff’s office. Shortly thereafter, Sharpe was taken into custody. A deputy drove the truck from the inspection station to the jail, where the truck was searched and the cannabis discovered.

Sharpe contends that despite the requirement of Florida Statute section 570.-15(l)(a) that specified vehicles stop at agricultural inspection stations, the inspectors must allow such vehicles to pass uninspect-ed absent a reasonable suspicion that agricultural products are being transported. It is his position that when he told the inspector that his vehicle contained furniture, and the inspector had no reason to suspect otherwise, the inspector should have let his vehicle pass. Finally, he contends that he did not abandon his truck and therefore the search carried out by the sheriff’s officers was illegal because it was done without a search warrant and without his valid consent. We must disagree with Sharpe’s reasoning.

Florida Statute 570.15 provides in pertinent part as follows:

“(l)(a) The commissioner, assistant commissioner, directors, counsel, experts, chemists, agents, inspectors, road-guard inspection special officers, and other employees and officers of the department shall have full access at all reasonable hours to all:
* * * * * *
6. Trucks;
7. Motor vehicles, other than private passenger automobiles with no trailer in tow or any vehicles bearing an RV license tag;
8. Truck and motor vehicle trailers;
******
used in the production, manufacture, storage, sale, or transportation within the state of any food product; any agricultural, horticultural, or livestock product; or any article or product with respect to which any authority is conferred by law on the department.
(b) If such access be refused by the owner, agent, or manager of such premises or by the driver of such aforesaid vehicle, the inspector or road-guard inspection special officer may apply for a search warrant which shall be obtained as provided by law for the obtaining of search warrants in other cases, or may conduct a search of any of the aforesaid vehicles without a warrant pursuant to s. 933.19.
(c) Such departmental officers, employees, and road-guard inspection special officers may examine and open any package or container of any kind containing or believed to contain any article or product which may be transported, manufactured, sold, or exposed for sale in violation of the provisions of this chapter, the rules of the department, or the laws which the department enforces and may inspect the contents thereof and take therefrom samples for analysis.
(2) It shall be unlawful for any truck or any truck or motor vehicle trailer to pass any official road-guard inspection station without first stopping for inspection. A violation of this subsection shall constitute a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.”

Section 570.151 provides as follows:

“The department may appoint road-guard inspection special officers of sufficient number to carry out the duties of the department relating to road-guard inspection as prescribed in this section. Said officers shall be known as road-guard inspection special officers .
******
All such special officers shall have power and authority to make arrests, with or without warrants as provided in s. 570.15, for violations of law committed within the jurisdiction of s. 570.15 to the same extent and under the same limitations and duties as do peace officers under the provisions of chapter 901, and all such special officers shall have the right and authority to carry arms while on duty, provided such officers shall meet the requirements of the Police Standards and Training Commission established under s. 943.11 . . .”

The State in the reasonable exercise of its police power has required agricultural inspections of specified vehicles operated on the highways of the State. In Stephenson v. Department of Agriculture and Consumer Services, 329 So.2d 373 (Fla. 1st DCA 1976), affirmed 342 So.2d 60 (Fla.1976), this Court so held and ruled further:

“The inspections are necessary in order that appellee [Department of Agriculture and Consumer Services] may carry out its responsibilities relating to disease control, fruit and vegetable grading and other similar matters required by law, appel-lee’s regulations and federal marketing orders. Under subsection (2) of section 570.15 above, all trucks and motor vehicle trailers [not limited to those mentioned in subsection (1)] are required to stop at appellee’s road-guard inspection stations for inspection. Unless such a vehicle stops at the station, it cannot be determined by the inspectors whether or not it is being used for transportation of ‘any food product, any agricultural, horticultural, or livestock product; or any article or product with respect to which any authority is conferred by law on the department.’ Upon stopping, the majority of operators of such vehicles will probably have no objection to such an inspection and will consent to same; but as provided in the statute, if access is refused, the vehicle may not be searched without the inspector obtaining a search warrant or without a legal basis for search without a warrant pursuant to established law. Such in no way impairs appellants’ right to be free from unreasonable search and seizure, their right to due process of law, or their right to equal protection of the law. We do not find that it violates any constitutional right of appellant.” (329 So.2d at page 376)

The Supreme Court affirmed the Stephenson decision, quoting an earlier decision, holding (342 So.2d 60, 61):

“The protection of a large industry constituting one of the great sources of the state’s wealth and therefore directly or indirectly affecting the welfare of so great a portion of the population of the state is affected to such an extent by public interest as to be within the police power of the sovereign.”

Sharpe’s contention that the agricultural inspectors should have limited their inspection of his truck to a few questions and a plain view search is devoid of merit. He was driving a two-ton rental truck with a large fully enclosed cargo area of the type customarily used as testified to by the inspectors, to haul fruit and tomatoes. The nature of the truck precluded any plain view inspection and, therefore, it was necessary for the inspector to look inside the truck’s cargo area in order to perform his duty of inspecting for agricultural products. Therefore, we find that Sharpe’s detention at the road-guard station was reasonable.

We find that Sharpe consented to the inspection of his truck and opened the truck of his own volition, State v. Drake, 343 So.2d 1336 (Fla. 1st DCA 1977), and that his arrest was lawful following his having fled the scene after an inspection of the truck began. City of Miami v. Nelson, 186 So.2d 535 (Fla.3d DCA 1966); Florida Statute sections 570.151, 901.15.

Finally, we agree with the trial court that defendant abandoned his truck at the road-guard station. The subsequent impoundment of the abandoned truck was also reasonable, Mattson v. State, 328 So.2d 246 (Fla. 1st DCA 1976), and the seizure of the evidence contained therein not improper. State v. Jackson, 240 So.2d 88 (Fla.3d DCA 1973); State v. Nittolo, 317 So.2d 748 (Fla.1975).

We have considered Sharpe’s remaining points and find them without merit. Accordingly, the judgment and sentence appealed are AFFIRMED.

SMITH, Acting C. J., and MASON, ERNEST E., Associate Judge, concur.

      . Johnson v. State, 99 Fla. 1311, 128 So.2d 853 (Fla.1930).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FLORIDA POWER CORPORATION, Appellant, v. Pauline C. PARKER et al., Appellees.
    No. KK-19.
    District Court of Appeal of Florida, First District.
    April 17, 1979.
    Rehearing Denied May 18, 1979.
    Martin S. Page of Darby, Peele, Page & Bowdoin, Lake City, for appellant.
    William G. Cooper of Kent, Sears, Dur-den & Kent, Jacksonville, for appellees.
   PER CURIAM.

Florida Power’s appeal questions a jury verdict and judgment against it, and for the fee owners of certain Hamilton County land, for $2,100 compensatory and $25,000 punitive damages for Florida Power’s erection and maintenance, without the fee owners’ consent but with the conditional consent of the tenant for years, of power lines and poles on that land. The lessee, whom the fee owners granted an exclusive right of possession until the year 2017, consented insofar as it could to the power line easement, upon a payment to the lessee to be determined, which was determined; and upon the additional condition that Florida Power acquire from the fee owners by a certain date, through negotiation or condemnation, the perpetual easement which Florida Power desired. That was not timely done, and Florida Power abandoned efforts to do so until many months later, when litigation forced the issue.

We would agree with Florida Power that the tenant’s power to consent to Florida Power’s use of the land during the leasehold term is to be determined from the lease, and that construction of the lease was a matter for the court, not the jury, but for the tenant’s power to withhold consent except on conditions, which here included satisfaction of the owners by acquisition of a perpetual easement, extending beyond the lease term by negotiation or condemnation. On the only issues presented to us, therefore, we find that Florida Power was not entitled to a directed verdict and that the evidence supported a conclusion that Florida Power entered and built knowingly and in willful or reckless disregard of rights reserved to the fee owners.

AFFIRMED.

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


author: MILLS, Acting Chief Judge. BOOTH, Judge,

text:
    Elbert C. ROBINSON and Verna Cotten Robinson, his wife, et al., Appellants, v. E. Lamar BAILEY and Ernest Bailey, d/b/a Lamar Bailey Associates, a partnership, and Nathan Leo Linzy and Patricia J. Linzy, Appellees.
    No. KK-121.
    District Court of Appeal of Florida, First District.
    April 17, 1979.
    Rehearing Denied May 21, 1979.

      James C. Truett of Truett & Oertel, Tallahassee, for appellants.
    W. Ralph Durrance, Jr., and Edwin F. Blanton of Novey & Blanton, Tallahassee, Dayton Logue of Welch, Bennett, Logue, Burke & Blue, Panama City, for appellees.
   MILLS, Acting Chief Judge.

This is an appeal from an order amending a final judgment to include a ruling on a third party complaint for indemnification.

The Robinsons owned land east of Tallahassee which they leased to the Linzys. Later, the Robinsons entered into an option agreement with Bailey which covered the land leased to the Linzys. Bailey exercised the option and Robinsons executed a deed to Bailey which was recorded on 2 August 1974.

On 14 August 1974, Bailey filed suit against the Linzys seeking a declaratory judgment, damages exceeding $250,000 and a mandatory injunction requiring the Lin-zys to surrender possession of the property. The Linzys filed their answer, affirmative defenses, and counterclaims. The Linzys’ attorney wrote to the Robinsons demanding that the Robinsons, as their landlord, defend them against the Bailey suit. The Robinsons did not respond and on 12 March 1975 the Linzys filed a third party complaint against the Robinsons for indemnification. Bailey then filed suit against the Robinsons alleging breach of warranty.

Trial without a jury was held in May of 1976 and on 12 July 1976 judgment was entered finding against Bailey on its complaint against the Linzys and its complaint against the Robinsons. On 7 September 1976, the judgment was amended to include a determination of the property covered by the Linzy lease. On 13 April 1977, this Court affirmed the trial court’s orders.

On 11 July 1977, the Linzys filed a motion pursuant to Rule 1.540, Fla.R.Civ.P., requesting further amendment of the orders of 12 July and 7 September 1976. The motion states as its grounds for relief the following:

“1. That through oversight, mistake and inadvertence, previous orders of this Court did not speak to the Defendant/Counterplaintiffs’ claims for indemnity and damages against the Third Party Defendants, Robinson.
“2. That the issues omitted in the previous orders of this Court were tried before the Court at the same time that the claims of Plaintiff, Bailey, against Defendant/Counterplaintiffs, Linzy, and the claims of Defendant/Counterplaintiffs, Linzy were tried against Bailey.”

On 7 September 1977, the trial court entered an order granting the motion for relief and ordering Robinson to indemnify the Linzys for costs and expenses, including attorney’s fees, suffered by Linzy in defense of the suit brought by Bailey. A hearing was held, and on 1 May 1978, an order was entered awarding $22,900 in attorney’s fees.

The Robinsons first contend that the motion for relief was insufficient under Rule 1.540 because it did not allege any facts to support the allegation of “oversight, mistake and inadvertence”.

We think that the motion is sufficient. It alleges the fact that there was a third party complaint for indemnification, the fact that the issues raised by the third party complaint were tried at the same time as the other issues, and the fact that the previous orders of the court did not address the third party complaint. A hearing on the motion was held but we do not have the benefit of a transcript of the proceeding since it was not recorded. The trial judge was in a position to know whether the failure to address the third party complaint in the prior order was due to mistake, inadvertence or oversight. The trial judge has broad discretion under Rule 1.540, and there must be a showing of gross abuse of discretion before a ruling thereunder will be disturbed. Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla.3d DCA 1978). Further, under the circumstances of this case, we question whether a Rule 1.540 motion was even necessary since there had been no judgment entered which addressed the third party complaint.

The order of 12 July 1976 does not rule on the third party complaint of the Linzys against the Robinsons. In that order the Court states that a hearing was held on the various claims filed in the cause, including the Linzys’ claim for indemnification, and then makes the following findings and adjudications:

“The Court, therefore, finds:
1. Linzy is entitled to possession until June 1, 1977.
2. Linzy is entitled to recover from Bailey such damages as Linzy has sustained resulting from the interference of Linzy’s possession by Bailey, together with all costs and expenses suffered or incurred by Linzy in sustaining Linzy’s right to possession.
3. That Bailey is not entitled to damages or indemnification from Robinson under the Option Agreement, the deed to Bailey from Robinson dated August 2, 1974, or the corrected deed of April 21, 1975.
“It is, thereupon, ORDERED AND ADJUDGED as follows:
1. That Nathan Leo Linzy and Patricia J. Linzy are hereby entitled to and are confirmed in their right to possession of the real property which is the subject matter hereof until June 1, 1977.
2. That upon filing of the proper and necessary notice jury trial will be had as to the claim for damages by Nathan Leo Linzy and Patricia J. Linzy against E. Lamar Bailey and Ernest Bailey, d/b/a E. Lamar Bailey and Associates.
3. That E. Lamar Bailey and Ernest Bailey d/b/a E. Lamar Bailey and Associates shall take nothing by their complaint against the third party defendants and the third party defendants Elbert C. Robinson and Verna Cotten Robinson, his wife, Arthur J. Robinson and Jennie Stewart Robinson, his wife, and Rosalie Robinson Gordon-Mills shall go hence without day.”

The numbered paragraphs of the findings correlate to the paragraphs of the same number in the orders and adjudications. Paragraphs numbered 1 address the complaint brought by the Baileys against the Linzys; paragraphs numbered 2 address the counterclaim of the Linzys against the Rob-insons; paragraphs numbered 3 address the third party complaint of the Baileys against the Robinsons. Obviously missing is any ruling on the third party complaint brought by the Linzys against the Robinsons. The fact that Linzys’ third party complaint had never been addressed was recognized by the trial court in its order of 7 September which stated:

“The previous Orders entered in this cause dated July 12,1976, and September 7, 1976, are.silent as to the third party claim by Defendant/Counterplaintiff LINZY for indemnification by Third Party Defendant ROBINSON.”

The Robinsons also contend that the court erred in holding them liable for the damages sustained by the Linzys in defending the suit brought by Bailey. Citing to Hankins v. Smith, 103 Fla. 892, 138 So. 494 (1931), the Robinsons argue that a lessor who has conveyed the leased property cannot be held liable under a breach of covenant of quiet enjoyment for damages sustained by the lessee due to the actions of the subsequent grantee.

We do not think that the holding in Han-kins v. Smith is as broad as the Robinsons contend. In Hankins the lessee sought to recover damages from the lessor as a result of the lessees being evicted by a subsequent grantee of the lessor. The Supreme Court affirmed the judgment of the trial court in sustaining the lessor’s demurrer to the complaint noting that the lessee had attorned to the subsequent grantee and that there was no allegation in the complaint that the acts complained of by the lessee were instigated or sanctioned by the lessor.

In the present case, there was no attornment. The Linzys continued to pay rent to the Robinsons and considered the Robinsons to be their landlord. Further, the trial court found the Robinsons liable for the Linzys’ damages only after considering the evidence and testimony presented at a two-day trial. Without a transcript of the testimony, which is unavailable since the hearing was not recorded, we cannot know all the facts upon which the trial court based its judgment. We, therefore, cannot hold that the court erred in finding the Robin-sons liable to the Linzys.

The amount of attorneys’ fees awarded was supported by the evidence.

The order of the trial court is affirmed.

ERVIN, J., concurs.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

The judgment of July 12, 1976, provides, in pertinent part, as follows:

“THIS CAUSE came on for trial and hearing before the Court, without a jury, on certain issues on the following claims: the third party complaint of Linzy against Elbert C. Robinson and Verna Cotten Robinson, his wife, Arthur J. Robinson and Jennie Stewart Robinson, his wife, and Rosalie Robinson Gordon-Mills; and on the complaint of Bailey against the above referred to third party defendants. .
2. Linzy is entitled to recover from.Bailey such damages as Linzy has sustained resulting from the interference of Linzy’s possession by Bailey, together with all costs and expenses suffered or incurred by Linzy in sustaining Linzy’s right to possession.
3. That Bailey is not entitled to damages or indemnification from Robinson under the Option Agreement the deed to Bailey from Robinson dated August 2, 1974, or the corrected deed of April 21, 1975.
That E. Lamar Bailey and Ernest Bailey, d/b/a E. Lamar Bailey and Associates shall take nothing by their complaint against the third party defendants and that the third party defendants Eibert C. Robinson and Verna Cotten Robinson, his wife, Arthur J. Robinson and Jennie Stewart Robinson, his wife, and Rosalie Robinson Gordon-Mills shall go hence without day.” (e. s.)

The foregoing was a final judgment as to the Robinsons. That judgment was affirmed on appeal by this Court. Bailey v. Robinson, 344 So.2d 930 (Fla. 1st DCA 1977).

A year after final judgment, the Linzys moved, pursuant to Rule 1.540, Florida Rules of Civil Procedure, for amendment of the final judgment to include the Linzy’s claim for indemnity and damages against the Robinsons. The motion states the issue was “tried” prior to final judgment but omitted from the judgment. There is no contention that the omission was due to clerical error. The motion alleges “oversight, mistake and inadvertence,” without supporting factual allegation and is insufficient and improper under Rule 1.540. The court’s amendment of the final judgment could only have been made pursuant to a timely motion under Rule 1.530, to alter or amend the judgment.

The obligation of the parties was to bring to the court’s attention substantive matters ruled on but either omitted or improperly stated in the final judgment within the time allowed by Rule 1.530. The trial court in fact found it necessary to clarify its final judgment in a manner clearly substantive, by stating:

“The language in paragraph 2 of the July 12, 1976 order was not meant to indicate that Bailey was responsible to Linzy for the indemnification of attorneys fees and costs . . . ”

In Fiber Crete Homes, Inc., v. DOT, 315 So.2d 492, 493 (Fla. 4th DCA 1975), the court held:

“Rule 1.540 was intended to provide relief from judgments, decrees or orders under a limited set of circumstances; it was neither intended to serve as a substitute for the new trial mechanism described by Rule 1.530 nor as a substitute for appellate review . . . ”

In Kitzmiller v. Southeast Services, Inc., 358 So.2d 271 (Fla. 3d DCA 1978), a final judgment was entered which did not include attorney’s fees for plaintiff. The trial court allowed a motion to amend the final judgment under Rule 1.540 and awarded attorney’s fees. The District Court reversed, holding that the motion was not timely under Rule 1.530(g) and not proper under Rule 1.540.

In Zwakhals v. Senft, 206 So.2d 62 (Fla. 4th DCA 1968), the court granted a motion to vacate and in its order stated the proper location of a section line in a property dispute. The District Court reversed, holding:

“The procedure for vacating judgment under Rule . . . (1.540) does not contemplate disposition on the merits. Fact finding in such a proceeding is limited to those facts necessary to a disposition of the motion for relief and does not extend to a finding on the actual substantive issues in the cause. The effect is to return the parties to the position they occupied before the judgment was entered . . . The court, therefore, committed error in holding that its order vacating judgment was dispositive of the issues created by the pleadings.”

In Board of Public Instruction of Dade County v. Dinkines, 278 So.2d 663 (Fla. 3d DCA 1973) the court, in reversing the granting of an improper motion under Rule 1.540, correctly stated the importance of strict adherence to the purposes for which that rule was adopted as follows:

“A litigant is entitled to know that a judgment determining his rights is final and will not be disturbed, except on appeal, or under the conditions prescribed by a rule. For this reason, if the litigant does not seek to correct error within the time and in the manner provided, the court involved has no authority to act as far as that action is concerned; the matters decided are finally ended . . . ”

Accordingly, the trial court was without jurisdiction to award attorney’s fees against the Robinsons and the order should be reversed.

I respectfully dissent.

      . In Re Trust of Aston, 245 So.2d 674, 676 (Fla. 4th DCA 1971):
      . . there is no sufficient allegation reflecting a basis for the court to determine that there had been excusable neglect, inadvertence or a mistake made which could be recognized and remedied by the rule.”


author: MELVIN, Judge. ERVIN, Judge,

text:
    Edward SHABLOWSKI, Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    No. KK-341.
    District Court of Appeal of Florida, First District.
    April 17, 1979.
    Rehearing Denied May 21, 1979.

      Joseph S. Gillin, Jr., of Storms, Pappas & Krasny, Melbourne, for appellant.
    Segundo J. Fernandez, Tallahassee, for appellee.
   MELVIN, Judge.

Edward Shablowski is the owner of certain waterfront property located on the Indian River. In 1963 and 1964, Shablowski purchased from the trustees of the Internal Improvement Fund (Trustees) several parcels of submerged land, which were located adjacent to his, above-mentioned, waterfront property. In 1969, Shablowski applied to the Department of Environmental Regulation (DER) for a permit to bulkhead and fill the submerged land and to dredge a shallow access canal from the river to his upland property. Specifically, the project would involve the construction of 600 lineal feet of seawall, which would be in line with and connect to an existing seawall along the adjacent property to the north. The 200 by 400 foot area enclosed by the seawall would then be filled with some 4,000 cubic yards of spoil. The dredging request was for an access channel three feet deep, 80 feet wide and 1,500 feet running from the eastern edge of the property riverward.

Thereafter, in April of 1977, the DER gave Shablowski notice of its intent to deny the permit application. Shablowski then filed a petition for a formal hearing pursuant to Section 120.57, Florida Statutes. Following the hearing, the hearing officer entered his recommended order stating that the application for a permit should be approved. By his recommended order, the hearing officer found that the Indian River in the vicinity of Shablowski’s property had become in the nature of a basin because of the existence of causeways to the north and south, which materially reduced the flushing action of this portion of the river and, thereby, increased the turbidity of the water. He found that the surface drainage from Highway U.S. 1 and in an area of some five square miles adjacent to the highway ran unfiltered into the river at a point near Shablowski’s property. The hearing officer also found that this portion of the Indian River, while in an ecologically stressed condition was not dead. With reference to the 400 by 200 foot fill site, the hearing officer found that the area had an average depth of 1.5 feet and was sparsely covered with patches of Cuban Shoalweed. The significant amount of animal life found on the property in question included blue crabs, silversides, mojarra, needle fish, mullet, sheepshead, leatherjack and snook. Other life samples included polychaetes, amphipods, sphaeromid, isopods, cumaceans, small shrimp, gem clams, paper mussels, gobies, and pipe fish. As to the dredging, the hearing officer found that the hydraulic dredging with the use of silt screens would not have a significant adverse impact on marine biological resources or water quality. The hearing officer found that the proposed bulkhead would increase the possibility of scouring in the area, but that Sha-blowski’s agreed to installation of rip rap along the bulkhead would eliminate the scouring and promote the propagation of marine life. Lastly, the hearing officer found that the granting of the application would:

“. . . result in the loss of approximately two acres of moderately productive bottom land in the Indian River, or approximately 0.1 percent of the total area of the Indian River in the basin between the two causeways.”

He noted, however, that:

“Petitioner generally acknowledges that filling of the area in question will not have a significant effect upon the ecology of the area; however, if others also fill productive bottom lands the cumulative effect could be significant.”

The hearing officer discussed the requirements of Section 253.124, Florida Statutes, and Rule 17-4, FAC, and concluded that Shablowski had satisfied them for the issuance of a permit, except for the adverse effect that filling the two acres of submerged land would have on the conservation of fish, marine and wildlife or other natural resources (the adverse effect being the elimination of this area as a food source, breeding ground and nursery for marine life).

Classifying the adverse effect as minimal and noting that Shablowski had paid taxes on the submerged lands some 15 years, the hearing officer distinguished the instant case from Yonge v. Askew, 293 So.2d 395 (Fla. 1st DCA 1974) and, relying upon Askew v. Taylor, 299 So.2d 72 (Fla. 1st DCA 1974), recommended the granting of both the dredging and filling permits.

Following review of the recommended order, the DER entered its final order finding that: 1) the hearing officer had erred in assuming that the impact of the proposed fill must be measured against the ecology of a given area such as between the two causeways; 2) erred in failing to address whether the fill project was “contrary to the public interest”; 3) erred in not conforming with prior agency practice and orders by failing to find that the cumulative effects caused by the proliferation of such fill projects would have measurable and detrimental effects on water quality and the natural resources of the river, notwithstanding the fact that the instant project, standing alone, would not have a “measurable” effect upon the natural resources of the area; 4) erred in failing to find that the dredging would be in the public interest as required by Section 253.123(3)(a), and Yonge v. Askew, supra; and 5) misapplied the holding in Askew v. Taylor, supra, to the instant case. Accordingly, the Secretary of the DER, by his final order, adopted the findings of fact contained in the recommended order, adopted in part and rejected in part the conclusion of law contained in the recommended order and denied Sha-blowski’s application.

Shablowski subsequently sought review by the Governor and Cabinet, sitting as the trustees, who approved and affirmed the DER’s final order. Shablowski now appeals pursuant to Chapter 120.

In our opinion there are two issues presented by this appeal: 1) Whether Sha-blowski should be allowed to dredge as requested by his application, and 2) whether he should be allowed to bulkhead and fill his property as requested. We perceive that these issues are governed by separate sections of the law and warrant individual discussion.

DREDGING

We conclude that the DER was correct in denying Shablowski’s application to dredge. Applications to dredge from the navigable waters of this state are made pursuant to Section 253.123 Florida Statutes, which provides that applicants to dredge for the construction of navigation channels:

“. . . shall only be undertaken after receipt of a permit from the board of trustees, which permit shall be granted after consideration of a biological or ecological study . . . upon a showing of the public interest which will be served by such works.” [Section 253.123(3)(a) (emphasis supplied)]

In the instant case Shablowski has not asserted that his dredge project will serve the public interest. The dredging was thus properly denied. Yonge v. Askew, supra.

BULKHEADING AND FILLING

As to the remaining issue of the filling of Shablowski’s property, we conclude that the DER erred in denying his application. Applications to fill are governed by Section 253.124, Florida Statutes, which does not contain the stringent language of Section 253.123, that the applicant must demonstrate that the project will serve the public interest. Rather, this section merely requires that a determination that the fill project will not:

“Interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest, and whether the destruction of oyster beds, clam beds, or marine productivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, including established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life, will result therefrom to such an extent as to be contrary to the public interest.” (emphasis supplied)

While it appears self evident, the DER correctly notes that the filling of these two acres will completely eliminate their use as a marine habitat or feeding area. Noting that the adverse impact of Shablowski’s project would, necessarily, be less drastic on the immediate surrounding area and would be diluted with distance and space as one increases the proposed area of impact, the DER claims that there is no basis for the hearing officer’s assumption that the impact of the proposed fill must be measured against the ecology of a given area such as that between the two causeways. The DER points out that the statute does not specify a geographical area against which the impact must be measured and, without suggesting what area would have been properly used, declares that the hearing officer erred in measuring the impact against the entire basin between the two causeways. We cannot agree.

The record in this case indicates that the state and/or its political subdivisions reduced the flow or the flushing action of the Indian River by the construction of causeways on either side of Shablowski’s property. This reduced flushing action coupled with the introduction of storm water runoff from the nearby highway and developed areas led to increased levels of turbidity and bottom silting. These in turn resulted in the impaired ability of this area to serve as a marine habitat and feeding grounds. Our reading of the record reveals that this impaired condition of the water and bottom is substantially uniform throughout the basin between the causeways. Considering the mobility of most of the marine life involved here the bottom line, so to speak, is that the hearing officer selected the most logical geographical area against which to measure the impact of Shablowski’s project.

The statutory language to such an extent as to be contrary to the public interest” presupposes some reduction in the ecological value of the area concerned. Whether it is “to such an extent as to be contrary to the public interest” is a factual question which must be determined on a case by case basis. In the instant case, the hearing officer found, and, indeed, the DER’s own witnesses testified that the ecological and biological effects of Shablow-ski’s fill project would be minimal. Our reading of the record confirms the same, and we consider that such minimal effects when considered against the basin area are not to such an extent as to be contrary to the public interest. Accordingly, we find that the denial of that portion of the application for permit to fill is not supported by competent substantial evidence and is, therefore, an abuse of discretion. McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

The denial of appellant’s application to dredge is AFFIRMED and the denial to fill is REVERSED with directions to grant the fill application.

MASON, ERNEST E., Associate Judge, concurs.

ERVIN, J., concurs in part and dissents in part.

ERVIN, Judge,

concurring in part and dissenting in part.

I concur with that portion of the majority’s opinion affirming the denial of appellant’s application to dredge. I am unable to join my colleagues, however, in reversing the Department’s final order denying the permit to fill. While the majority opinion observes that the filling of the two acres will completely eliminate their use as a marine habitat or feeding area, it agrees with the recommended order that the extent involved is not contrary to the public interest when its impact is measured against the entire basin between the two causeways. Yet the hearing officer’s recommended order was unclear that only the proposed area sought to be filled would alone be affected. The hearing officer found also:

Although removal of these two (2) acres from the 4200 acres contained in the Indian River between the causeways is a loss of .05 percent, the high turbidity of the waters of the Indian River between the causeways greatly reduces the growth of sea grasses and hence marine life in waters deeper than three (3) feet. Therefore the effect of the loss of productive submerged land is greater than the percentage noted above, (e. s.)

The Department, correctly I think, within the range of discretion delegated to it by law, § 120.68(12), interpreted § 253.124 as requiring a showing of damage and requiring also the applicant to show that the resulting damage would not be contrary to the public interest. Once there is a showing of damage, it is appropriately within the Department’s discretion — not the hearing officer’s, nor ours — to determine whether such damage is contrary to the public interest.

This statute does not specify the geographical area by which the proposed impact should be measured in determining whether the public interest is affected. Suppose the hearing officer had concluded that the area to be measured by the proposed fill included the entire Indian River and its estuaries. I doubt we would have considered ourselves bound by such an arbitrary conclusion. The statutory words “contrary to public interest” involve not so much factual determinations as they do policy considerations, and the development of policy is within the province of the agency charged with administering the law. “[W]here the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility, a reviewing court will give correspondingly less weight to the hearing officer’s findings in determining the substantiality of evidence supporting the agency’s substituted findings.” McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977).

An agency’s interpretation of a statute is within its range of discretion, Board of Regents of the State of Florida v. PERC, 368 So.2d 641 (Fla. 1st DCA, 1979), and we are expressly forbidden by the APA from substituting our judgment for that of the agency on an issue of discretion. Section 120.68(12). I would affirm the order of the Department in its entirety.

      . This submerged land was likewise acquired from the trustees, bulkheaded and filled, circa 1963, and is now operated as a commercial marina.


author: MASON, ERNEST E.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. R. S. McATEER and Florida Career Service Commission, Appellees.
    No. LL-58.
    District Court of Appeal of Florida, First District.
    April 17, 1979.
    Rehearing Denied May 18, 1979.

      Enoch J. Whitney, Tallahassee, for appellant.
    Charles R. Forman, C. Clyde Atkins, Jr., of Musleh, Bond, Arnett, Forman & Atkins, Ocala, Robert L. Shevin, Atty. Gen., and David K. Miller, Asst. Atty. Gen., for appel-lees.
   MASON, ERNEST E.

(Retired Circuit Judge), Associate Judge.

Appellant — Department of Highway Safety and Motor Vehicles seeks review of an amended order of the Career Service Commission.

An order was entered on April 24, 1978, and served on the parties to this appeal, including appellee McAteer, on May 8,1978. An amended order was entered on July 31, 1978, and served on the parties August 1, 1978. Primarily it is from this amended order that this appeal lies.

Appellee McAteer worked as a radio teletype operator for the Department and was serving in this capacity at the time of his dismissal on June 13, 1977. By letter dated June 13, 1977 signed by the Director of the Florida Highway Patrol, McAteer was advised of his dismissal effective that date for “conduct unbecoming a public employee” in that he had been involved in an accident while under the influence of alcohol and had refused to submit to a chemical test for alcoholic content of his blood. The letter advised the employee of his right to appeal the disciplinary action.

Subsequently, McAteer appealed to the Career Service Commission in accordance with the proper provisions of Section 110.-061, Florida Statutes (1977).

After proper notice to all parties, a hearing was held on the employee’s appeal on February 16, 1978. Following the hearing the Commission found that upon the whole record the Department had fully sustained the burden of proof encumbent upon it by a preponderance of the evidence establishing a legal dismissal of McAteer and that the material allegations of the letter of dismissal were proven. However, the Commission found that in view of McAteer’s prior good record, dismissal was too severe a punishment under the circumstances and that such penalty should be altered to a lesser penalty. It therefore in its written order dated April 24, 1978, dealing with the subject matter before it, ordered the Department to reinstate McAteer without back pay to his former or to a comparable class or position for which he is found to be qualified, “effective upon receipt of this order” (emphasis supplied).

The Commission had announced an oral order of reinstatement at the conclusion of the hearing on February 16, 1978, and a written order confirming such oral announcement followed on April 24, 1978. A copy of the written order was served upon the Department and upon McAteer on May 8, 1978.

McAteer, through his attorney, on May 10, addressed a letter to one Mrs. Dorothy B. Roberts, who was the Career Service Commission Appeals Coordinator at the time, contending that under the oral announcement of reinstatement made on February 16, he was entitled to such reinstatement immediately upon such oral announcement, and requested “an immediate amended order which reflects the true intent of the Commission”. In support of his request for such amendment, and apparently to bolster the amended order which was entered by the Commission on July 31, amending the effective date of McAteer’s reinstatement to February 16, 1978, appellee-Mc-Ateer has filed in this court affidavits of the three members of the Commission, each dated on a separate date in November, 1978, to the effect that they had intended by their oral announcement at the conclusion of the February 16, hearing to make the effective date of the reinstatement February 16, and that the written order of April 24, did not reflect the true intent of the Commission.

We cannot consider these affidavits as a part of the record on this appeal because they were executed and filed after the fact, that is to say after the original written order of April 24, 1978, and after the amended written order of July 31,1978; and even after the notice of appeal was filed in this court and the record on appeal filed with the Clerk. By order dated January 3,1979, we expressly denied the supplementation of the record herein by the untimely filing of these affidavits. Therefore, we must resolve the issues presented by this appeal upon the proper record before us, absent such affidavits.

An examination of the record of the hearing of February 16, indicates that it was the intent of the Commission that there would be a written order of reinstatement, for at the close of the hearing when the question of an attorney’s fee to McAteer’s counsel was raised, the Commission agreed that such counsel was entitled to a fee and the Chairman stated: “All right. So the order will read ‘with reasonable attorney fee as well’ ”, (Emphasis supplied) This clearly established the intent of the Commission at the time of the close of the hearing that there would be a written order effecting the Commission’s decision which refutes the appellee’s contention that his reinstatement was ordered to be immediately effective.

Furthermore, the statute creating the Career Service Commission as an adjunct of the Department of Administration directs that the action of the Commission on the hearing of an appeal by a career service employee who complains of an alleged wrongful suspension, demotion or dismissal by his employer “shall be in writing and shall be served on the parties to the appeal either in person or by mail” (Florida Statute 110.061(3)(c)). (emphasis supplied) The Commission was powerless orally to order McAteer’s reinstatement as contended for by him. The Commission’s written order of April 24, is therefore controlling.

This brings us to the one crucial point of this appeal which is, “Was the amended order entered by the Commission on July 31, 1978, a valid order, having the legal effect of reinstating McAteer effective February 16,1978?”. We answer in the negative and reverse. There was no proper Petition for Rehearing of the written order entered by the Commission on April 24. The letter written by McAteer’s attorney to the Commission under date of May 10, seeking a clarification of the Commission’s order is clearly an ex parte communication which is proscribed by F.S. 120.66. F.S. 120.66(1) provides that in any proceeding under the Administrative Procedures Act no ex parte communication shall be made to the agency head or hearing officer after the entry of a recommended order by any party to the proceeding or counsel therefor. Therefore, since such letter was an illegal communication it cannot be deemed to have continued jurisdiction of the case in the Commission after the April 24 order became final.

Furthermore, there is nothing in the record that discloses that appellant either directly or to its counsel was given any notice that the Commission would consider said proscribed letter either as a petition for clarification or rehearing. It is evident that the July 31st order was entered without any opportunity given to the appellant — Department to contest the same.

Having determined that the July 31 order is a nullity, we therefore conclude that the final order of the Commission was the order of April 24,1978. If appellee felt aggrieved by said final order, he had the right to appeal therefrom to this court provided he did so within thirty days from the date the order was rendered as prescribed by Rule 9.110(b) of the Florida Rules of Appellate Procedure. This he did not do.

We reverse and remand with the direction to the Career Service Commission to reinstate its order of April 24, 1978.

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


text:
    Peter EDWARDS and Joan D. Edwards, his wife, Appellants, v. LAWYERS TITLE GUARANTY FUND, Appellee.
    No. 78-1428.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.
    Rehearing Denied May 15, 1979.
    Ritter & Ritter and John A. Ritter, Coral Gables, for appellants.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Butchikas v. Travelers Indemnity Co., 343 So.2d 816 (Fla.1977); Allstate Insurance Co. v. Gibbs, 340 So.2d 1202, 1204 (Fla.4th DCA 1976); Sena v. State Farm Mutual Automobile Insurance Co., 305 So.2d 243 (Fla.3d DCA 1974); MacDonald v. Penn Mutual Life Insurance Co., 276 So.2d 232 (Fla.2d DCA 1973); State Farm Mutual Automobile Insurance Co. v. Herrin, 230 So.2d 709 (Fla.2d DCA 1970).


text:
    Alfred WENK, Petitioner, v. George P. TSIOTIS, Respondent.
    No. 78-2071.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1979.
    Borden R. Hallowes of Hallowes & Carry, Fort Lauderdale, for petitioner.
    Ira Marcus, Fort Lauderdale, for respondent.
   PER CURIAM.

Certiorari denied.

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


author: DOWNEY, Chief Judge.

text:
    CHALFONTE DEVELOPMENT CORPORATION, Petitioner, v. Philip F. BEAUDOIN, d/b/a P. F. Beaudoin & Associates, Respondent.
    No. 78-2715.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1979.
    Rehearing Denied May 21, 1979.

      J. Cameron Story, III, of McCune, Hiaa-sen, Crum, Ferris & Gardner, P. A., Fort Lauderdale, for petitioner.
    Robert A. Urban, Fort Lauderdale, for respondent.
   DOWNEY, Chief Judge.

The trial court denied petitioner’s motion to dismiss for lack of prosecution. By Petition for Writ of Certiorari we are asked to review that order because petitioner contends that “the lower court’s interlocutory Order denying Petitioner’s Motion was clear error of such a character that the Fourth District Court of Appeal should correct it by the exercise of its discretionary power to issue a Common Law Writ of Certiorari.”

This case does not warrant the writing of an opinion because the grounds for issuance of the common law writ of certio-rari have been discussed in innumerable cases, many of recent vintage. However, in the hope of stemming an ever increasing tide of unfounded petitions for certiorari we state once again that non-final orders not reviewable by interlocutory appeal pursuant to Fla.R.App.P. 9.130 will not be reviewed by petition for common law certio-rari unless the order does not conform to the essential requirements of law and to proceed without immediate review may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal is inadequate.

As we said in Siegel v. Abramowitz, infra n. 1, it would no doubt be expeditious for this court to resolve the issue presented at this point in time. However, we have persistently refused to alter the rule in the name of expedition. The appellate rule provides for interlocutory review of certain non-final orders because it is essential that they be reviewed during the pendency of the case in the trial court. Generally, all other appellate review is postponed until the matter is concluded in the trial court for rather obvious reasons.

Following the appellate format set out in the rules and the case law governing this subject, it appears to us quite clearly that the issue presented by this petition is not properly one for review by writ of common law certiorari.

Accordingly, the petition for certiorari is denied.

DAUKSCH and MOORE, JJ., concur.

      . Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975); Solitron Devices, Inc. v. Reiland, 311 So.2d 729 (Fla. 4th DCA 1975). See also: Esler v. Gabinet, 369 So.2d 93 (Fla. 4th DCA 1979).

      . Fla.R.App.P. 9.130.


text:
    Henry JOHNSON, etc., et al., Petitioners, v. John D. HENNINGSON, etc., et al., Respondents.
    No. 79-627.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1979.
    Rehearing Denied May 22, 1979.
    George B. Pomeroy of Pomeroy, Betts, Pomeroy & Moses, Fort Lauderdale, for petitioners.
    Richard A. Barnett of Law Office of Krupnick & Campbell, Fort Lauderdale, for respondents.
   PER CURIAM.

The trial court denied petitioners’ motion to dismiss the second amended complaint in a wrongful death case. Clearly this alleged error, if any, can be adequately remedied on plenary appeal. We have repeatedly held that this court will not grant certiorari to review interlocutory orders under these circumstances. Chalfonte Development Corp. v. Beaudoin, 370 So.2d 58, Fourth District Court of Appeal Case No. 78—2715, Opinion filed April 18,1979; Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975); Solitron Devices, Inc. v. Reiland, 311 So.2d 729 (Fla. 4th DCA 1975). See also: Esler v. Gabinet, 369 So.2d 93 (Fla. 4th DCA 1979).

CERTIORARI DENIED.

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


text:
    Curtis J. WIMBERLY, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-1513, 78-1119, 78-1120, 78-1121 and 78-1238.
    District Court of Appeal of Florida, Second District.
    April 18, 1979.
    Jack O. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction, but we remand the case so that the trial court may set aside the orders assessing costs against appellant. Since the court had adjudged appellant to be insolvent, it was not authorized to assess costs against him. § 939.15, Fla.Stat. (1977); Cox v. State, 334 So.2d 568 (Fla.1976).

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


text:
    Robert Earl GUY, Appellant, v. Dorothy Mae GUY, Appellee.
    No. KK-299.
    District Court of Appeal of Florida, First District.
    April 19, 1979.
    Rehearing Denied May 21, 1979.

      Clayton J. M. Adkinson of Thompson, Ad-kinson & Beasley, De Funiak Springs, for appellant.
    No appearance for appellee.
   PER CURIAM.

Upon review of the record it appears there was no evidence introduced on the issue of attorneys’ fees. Accordingly, the award of attorneys’ fees is reversed and the cause remanded for the purpose of taking evidence to determine a reasonable fee, the wife’s need for such an award, and the husband’s ability to pay it. Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977); Reek v. Reek, 303 So.2d 677 (Fla. 4th DCA 1974). In all other respects, the order is AFFIRMED.

McCORD, C. J., and MELVIN and SMITH, LARRY, JJ., concur.


author: GRIMES, Chief Judge.

text:
    Paul C. VARNER, Appellant, v. B. L. LANIER FRUIT CO., INC., Appellee.
    No. 78-1439.
    District Court of Appeal of Florida, Second District.
    April 20, 1979.

      Harry E. King of King, Kaylor & Thorn-hill, P. A., Winter Haven, for appellant.
    Kingswood Sprott, Jr. of Sprott & Grose-close, Lakeland, for appellee.
   GRIMES, Chief Judge.

This appeal involves the enforceability of a liquidated damage clause.

According to the complaint, the parties entered into a written contract in which the grower agreed to sell and the buyer agreed to pick and buy all of the fruit of merchantable quality from the grower’s grove on or before February 9, 1977. The agreement contemplated the sale of approximately 22,-000 boxes and specified the price to be $1.25 per box. The contract contained the following clause:

The Buyer has this day advanced to the Grower the sum of $11,000, the receipt of which is hereby acknowledged by the Grower which sum is an advance and part payment for said fruit at the price above stated. All fruit at the price aforesaid shall be paid for from time to time as the fruit is picked, or within 10 days thereafter. Should Buyer fail to comply with the terms and conditions herein enumerated this contract shall therefore become null and void and the advance made to the Grower shall be retained by said Grower in full payment of liquidated damages.

The grower alleged that the buyer picked 12,000 boxes but failed or refused to pick the remainder as required by the contract. There were 9,500 boxes of merchantable fruit left on the trees which the grower was unable to sell elsewhere. The buyer had paid the grower $16,000 on account of the agreement. The grower claimed damages from the buyer for breach of contract.

The buyer obtained a judgment on the pleadings on the premise that the grower was limited to the recovery of the $11,000 liquidated damages specified in the foregoing provision, and that the grower had already collected a sum in excess of that amount. We reverse.

This transaction was controlled by Article 2 of the Uniform Commercial Code, Chapter 672, Florida Statutes. See Sections 672.102, 105(1), 107(2), Florida Statutes (1975). On the subject of liquidated damages, Section 672.718(1), Florida Statutes (1975), states:

(1) Damages for breach by either.party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.

This is consistent with pre-Code law. See Hyman v. Cohen, 73 So.2d 393 (Fla.1954). Although there is no specific reference to the possibility of an unreasonably small liquidated damage figure, the official comment under this section notes:

A term fixing unreasonably large liquidated damages is expressly made void as a penalty. An unreasonably small amount would be subject to similar criticism and might be stricken under the section on unconscionable contracts or clauses.

The section on unconscionable contracts or clauses is Section 672.302(1), Florida Statutes (1975), which states:

(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

While most cases on liquidated damages occur where the stipulated sum is unreasonably high, there are some pre-Code decisions in which the complaining party demonstrated that the liquidated figure was so inadequate as to justify the court permitting him to recover his actual damages. Bonhard v. Gindin, 104 N.J.L. 599, 142 A. 52 (1928); Manley Auto Co. v. Jackson, 115 Or. 396, 237 P. 982 (1925); Palestine Ice, Fuel & Gin Co. v. Walter Connally & Co., 148 S.W. 1109 (Tex.Civ.App.1912); cf. Demont v. Charlotte Associates, Inc., 286 So.2d 586 (Fla. 1st DCA 1973). Here, then, the grower would be entitled to a further recovery if he can prove the unconscionability of the liquidated damages clause.

Absent a finding of unconscionability, the grower may still find relief in Section 672.719(2), Florida Statutes (1975), which provides:

(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this code.

There may have been good reason to enforce the liquidated damages provision in this case had the buyer utterly failed to perform the contract. However, according to the complaint the buyer had already picked enough fruit to use up the deposit. If the grower's recovery is limited to the amount of the deposit, he will be entitled to no damages whatsoever for the buyer’s failure to pick the remaining 9,500 boxes. Therefore, this could easily be a case in which the circumstances have caused an exclusive or limited remedy to fail of its essential purpose so as to permit the grower to pursue the other remedies provided by the Code. See Sections 672.703—710, Florida Statutes (1975).

The test to be applied in determining the propriety of a judgment on the pleadings for the defendant is the same as if the defendant had moved to dismiss the complaint for failure to state a cause of action. Chance v. Chance, 362 So.2d 165 (Fla. 1st DCA 1978). Upon the principles set forth above the grower clearly alleged a cause of action.

REVERSED and REMANDED.

OTT and RYDER, JJ., concur.

      . We recognize that the grower is now $1,000 ahead because he has received $16,000 for $15,-000 worth of fruit.

      . Our decision is in harmony with a pre-Code case involving facts remarkably similar to those in this case. Kuharske v. Lake County Citrus Sales, 44 So.2d 641 (Fla.1949).


author: MILLS, Acting Chief Judge.

text:
    Kenneth GREEN, Howard Hornsby, Joseph Coombs, and Clinton Foster, Appellants, v. INVESTIGATION OF the LIBERTY COUNTY SCHOOL SYSTEM-REPORT OF the GRAND JURY, Appellee.
    No. KK-418.
    District Court of Appeal of Florida, First District.
    April 24, 1979.

      Guyte McCord, III, of Spector & Tunni-cliff, Tallahassee, for appellants.
    L. Arthur Lawrence, Jr., State’s Atty., for appellee.
   MILLS, Acting Chief Judge.

This appeal is taken pursuant to Section 905.28(1), Florida Statutes (1977), from an order entered by the trial court denying appellants’ motion to repress or expunge certain portions of the Report of the Grand Jury on the investigation of the Liberty County School System.

The appellants argue that certain conclusions and recommendations in the report should be expunged because they lack the proper factual foundation and are thus “improper” within the meaning of Section 905.-28(1). In the alternative, appellants argue that the report is so ridden with improper findings, conclusions, recommendations and observations that the entire report should be repressed.

In Miami Herald Publishing Company v. Marko, 352 So.2d 518 (Fla.1977), the Supreme Court stated that “. . . the focus of a judicial inquiry on a motion to repress under the statute . . . must be addressed to the germaneness and factual foundation of the particular recommendations contained in a report.” The report before us consists in pertinent part of conclusions and recommendations that are unsupported by any factual findings.

We believe that the report has so many improper conclusions and recommendations that it must be repressed. Expunging the specific paragraphs which appellants urge us to expunge would result not only in a report that still included conclusions and recommendations unsupported by any factual foundation but also in a report that has a totally different tenor than the original report.

We, therefore, reverse and remand this cause to the trial court with instructions that the Report of the Grand Jury be repressed.

ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


author: PEARSON, Judge.

text:
    DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. Arthur C. STILL, a single man, et al., Appellees.
    No. 78-1103.
    District Court of Appeal of Florida, Third District.
    April 24, 1979.

      Stuart L. Simon, County Atty. and Murray A. Greenberg, Asst. County Atty., for appellant.
    John R. Farrell and Norman Malinski, Miami, Weiner & Walton, Coral Gables, Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel, Miami, Kelly, Black, Black, Wright & Earle, P.A. and Leon D. Black, Jr., Miami, for appellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PEARSON, Judge.

The appellant, Dade County, was the plaintiff in an eminent domain proceeding in the trial court. It appeals the judgments entered setting the value of several parcels of real estate owned by the respective ap-pellees on this appeal. The only point presented urges error in a pretrial order. The point presented is:

“Whether the effect of a road width and building setback ordinance on the market value of property being acquired in an eminent domain proceeding is a factual issue to be determined by the jury.”

The order to which this point refers reads as follows:

“ORDERED AND ADJUDGED that full compensation for the taking of the parcels in the above-styled cause shall be determined as though the said Dade County ‘zoned right-of-way’ provisions had never been enacted and did not exist prior to and on the date of taking in this cause. The expert real estate appraisers who will testify in this cause may testify to whatever may be their opinion of the value contribution or fair market value of the part taken and damages if any to the remainder as to each parcel but such opinion must entirely disregard the said Dade County ‘zoned right-of-way’ provision and any limitations on the use of the properties involved herein, and the effect, if any, in diminishing actual market value which may have been caused thereby or result therefrom prior to or at the date of taking in this cause. No testimony or evidence shall be allowed directly or indirectly before the jury concerning the ‘zoned right-of-way’ provisions or their effect, if any, on the use or value of the properties involved in this cause.”

The circumstances leading up to the entry of the order are that in 1938, Dade County passed an ordinance entitled “Right-of-Way Plan and Minimum Width.” This ordinance set minimum width for streets and roads planned as arterial streets, as well as certain other streets. By this ordinance, the width of the street abutting appellees’ property was set at a minimum width of seventy feet.- In 1951, the right-of-way width was changed to one hundred feet.

The present cause was begun in 1977 and sought condemnation of a portion of appel-lees’ property for the widening of the street. At the taking of the deposition of the appraiser for the County and the appraiser for the individual owners, it became apparent that there was a great divergence between the amounts testified to on the value of the land when the effect of the proposed street widening was taken into consideration. As to these properties, the testimony of the appraisers shows that the value of the property is considerably higher if the County’s plans are disregarded. The County urges that the purpose of the ordinance is to place the public on notice of the location of potential future road expansion. It is urged that the existence of this ordinance is a fact affecting the value of the property and, therefore, it is error to exclude from the jury testimony of its existence. The County relies upon the principles set forth in Musleh v. Division of Admin., State Dept. of Transp., 299 So.2d 101 (Fla. 1st DCA 1974), where the court pointed out that it is an elementary principle that a jury in an eminent domain proceeding should receive all information on the value of the property being taken. See also this court’s recent opinion in Garcia v. State Department of Transp., 342 So.2d 522 (Fla. 3d DCA 1977); and Mazerolle v. State of Florida, Dept. of Transp., 266 So.2d 364 (Fla. 1st DCA 1972).

The appellees, on the other hand, point out that no compensation was paid when the ordinance was passed either in 1938 or in 1951, when the County announced that it would at sometime in the future be taking a portion of the landowners’ property. Now that the time has arrived for the taking of the property, the County disclaims partial responsibility for compensation because of the effect of its prior announcement of an intention to take. It is claimed that this position is contrary to the holding of the Supreme Court of Florida in City of Miami v. Romer, 73 So.2d 285 (Fla.1954), where the court said:

* * * * * * . . it should be noted that ‘the mere plotting of a street upon a city plan without anything more does not constitute a taking of land in a constitutional sense so as to give an abutting owner the right to have damages assessed.’ Miller v. City of Beaver Falls, 368 Pa. 189, 82 A.2d 34, 36; and cases collected in the annotation in 64 A.L.R., beginning on page 546. And this is so, even though the ordinance prevents the development of the property in a manner not conforming to the plan. In such case, payment of compensation must await the actual ‘taking’ of the property by the City, or such actual deprivation of a beneficial use as to amount to a compensable ‘taking.’ Compare In re Chestnut Street, 118 Pa. 593, 12 A. 585; In re Sansom Street, in City of Philadelphia, 293 Pa. 483, 143 A. 134.”

It is natural for governmental authorities to seek ways to prevent owners from using land which might at sometime in the future be used for streets or roads. Therefore, it cannot be held reprehensible for the County to attempt by such procedure to alleviate the cost to the public for the acquisition of these areas. See Rochester Business Institute, Inc. v. City of Rochester, 25 A.D.2d 97, 267 N.Y.S.2d 274 (1966). Nevertheless, the principle must be adhered to that no action of the government can constitutionally deprive an individual of his property without full compensation for the taking. Art. X, § 6(a), Fla. Const. Therefore, we hold that the trial court correctly determined that the existence of the ordinance declaring a future intent to take should not be presented to the jury as a basis for a price less than that which would have existed without the declaration of future taking.

Affirmed.


text:
    Daniel PAHUD, Appellant, v. STATE of Florida, Appellee.
    No. 77-2539.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1979.

      Richard L. Jorandby, Public Defender, and Wilbert Stevenson, Jr., Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

In this case, the appellant was convicted of two counts of lewd assault on a child and sentenced to two concurrent twenty-year terms of imprisonment, notwithstanding that the statutory maximum was ten years as to each count. This excess was arrived at under the old child molester act which in 1969 was found in Chapter 801 of the Florida Statutes. It provided that any person properly convicted under an offense within the meaning of the chapter, could be sentenced to a term not to exceed twenty-five years. However, a condition precedent to any such sentencing was a court ordered psychiatric examination, which was never actually carried out.

Thereafter, in 1977 the defendant moved to vacate the sentences for lack of said examination as a result of which the sentences were vacated. At the new sentencing hearing the judge re-sentenced the defendant to two ten-year terms to run consecutively.

We would be inclined not to view this as an enhanced sentence for we see little if any difference in the result. In both events the sentence is twenty-years imprisonment. However, our research of the case law on the subject would indicate that we must reverse.

It appears that where a court has jurisdiction of the person and the offense, the imposition of a sentence in excess of what the law permits does not render the legal, or authorized, portion of the sentence void, but only leaves such portion of the sentence as may be excessive, open to modification. In other words, the sentence is legal so far as it is within the provisions of the statute and only void as to the excess. Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1874); United States v. Prid- geon, 153 U.S. 48, 62, 14 S.Ct. 746, 38 L.Ed. 631 (1894); Duggins v. United States, 240 F.2d 479 (6th Cir. 1957); Kennedy v. United States, 330 F.2d 26 (8th Cir. 1964).

Moreover, a court may not increase or make more severe the valid portions of any sentence originally imposed if service of the legal portion of the sentence has commenced. Ex parte Lange, supra; United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1930); United States v. Best, 571 F.2d 484 (9th Cir. 1978); Duggins, supra; Kennedy, supra; Brown v. State, 264 So.2d 28 (Fla. 1st DCA 1972). Since the concurrent term of the sentences first imposed was a valid portion of those sentences, the change thereof to consecutive terms is held to have increased petitioners punishment. Kennedy, supra; Duggins, supra; United States v. Best, supra.

According to the above authority an exception to the general rule cannot be made even though the purpose of the “increase” is to carry out the purportedly original intention of the trial judge to impose a twenty-year term. Kennedy, supra; Duggins, supra; United States v. Sacco, 367 F.2d 368 (2d Cir. 1966). See also Brown v. State, supra.

Therefore this cause is reversed and remanded for the entry of a corrected sentence in accordance herewith.

REVERSED AND REMANDED.

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


text:
    Calvin E. MURPH, Appellant, v. STATE of Florida, Appellee.
    No. 78-678.
    District Court of Appeal of Florida, Second District.
    April 25, 1979.
    Jack O. Johnson, Public Defender, Paul C. Helm, Asst. Public Defender and Brent A. Woolbright, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction, but we remand the case so that the trial court may set aside the orders assessing costs against appellant. Since the court had adjudged appellant to be insolvent, it was not authorized to assess costs against him. § 939.15, Fla.Stat. (1977); Cox v. State, 334 So.2d 568 (Fla.1976).

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


author: DÁNAHY, Judge.

text:
    Bonita Louise NICOLODI, Appellant, v. HARLEY-DAVIDSON MOTOR COMPANY, INC., Appellee.
    No. 78-1089.
    District Court of Appeal of Florida, Second District.
    April 25, 1979.

      John W. Frost, II, and Charles W. Dodson, of Holland & Knight, Bartow, for appellant.
    Lynn H. Groseclose and Kingswood Sprott, Jr., of Sprott & Groseclose, Lake-land, for appellee.
   DÁNAHY, Judge.

Two questions are presented in this case. The first is whether the crashworthiness doctrine adopted and applied to an automobile manufacturer in Ford Motor Company v. Evancho, 327 So.2d 201 (Fla.1976) applies as well to the manufacturer of a motorcycle. The second question is whether recovery in a crashworthiness case may be based on strict liability or breach of implied warranty as well as on negligence. We answer both questions in the affirmative.

Appellee is the manufacturer of a motorcycle on which appellant was riding as a passenger when it collided with a truck. Appellant suffered serious injuries and lost one leg. In this suit appellant seeks to hold appellee liable for failure to provide any safety device on its motorcycle to protect passengers’ legs during collisions. Her complaint contains three counts against ap-pellee, one for negligence, one for breach of warranty, and one on grounds of strict liability.

On appellee’s motion to dismiss all three counts, the trial judge entered a final order of dismissal in which he ruled that “under the present state of Florida law a motorcycle is not within the conceptual ambit of the crashworthiness doctrine announced in Ford v. Evancho.” We hold that the trial judge was in error, and reverse.

The expression “crashworthiness doctrine” is used to describe the holding in the landmark case of Larsen v. General Motors Corporation, 391 F.2d 495 (8th Cir. 1968), which was followed by the Florida Supreme Court in Ford Motor Company v. Evancho, supra. In each of these cases recovery was sought for injuries received in an automobile accident resulting from an alleged defect in design which was not a causative factor of the initial accident but increased or brought about injury to the plaintiff in the course of the collision. In Larsen the alleged defect was in the design of the steering assembly, which caused a rearward displacement of the steering shaft on left frontal impact which was much greater than it should have been. In Ford Motor Company v. Evancho the alleged defect was in the design of the front seat track-and-rail mechanism, which failed to lock the front seat, causing the right side of the front seat to be thrown forward when a back seat passenger was thrown against it in a collision.

In each of these cases the automobile manufacturer argued that its duty of reasonable care in the design and construction of an automobile is met when the automobile is safe for its intended use and that “intended use” does not include involvement in an accident. The courts rejected that argument by applying basic principles of negligence. They reasoned that a manufacturer’s duty of reasonable care extends to those results which are reasonably foreseeable and involvement in an accident is a reasonably foreseeable use of an automobile; therefore, an automobile manufacturer’s duty of reasonable care in the design and manufacture of an automobile must take into consideration the injury-producing effects of an impact. The court in the Larsen case said:

This duty of reasonable care in design rests on common law negligence that a manufacturer of an article should use reasonable care in the design and manufacture of its product to eliminate any unreasonable risk of foreseeable injury. The duty of reasonable care in design should be viewed in light of the risk. While all risk cannot be eliminated nor can a crashproof vehicle be designed under the present state of the art, there are many commonsense factors in design, which are or should be well known to the manufacturer that will minimize or lessen the injurious effects of a collision. The standard of reasonable care is applied in many other negligence situations and should be applied here.

The Larsen court specifically rejected the notion that it was placing automobile manufacturers in a special class, saying “[w]e think the duty of the use of reasonable care in design to protect against foreseeable injury to the user of a product and perhaps others injured as an incident of that use should be and is equally applicable to all manufacturers with the customary limitations now applied to protect the manufacturer in case of unintended and unforeseeable use.”

In arguing that the crashworthiness doctrine should not apply to the manufacturer of a motorcycle, appellee proposes a restrictive interpretation of the holdings in Larsen and Evancho. First, appellee says that the courts in those cases placed a duty on the manufacturer of an automobile to provide a means of safe transportation and it is ludicrous to propose that a motorcycle could be made safe. As stated by appellee, “a motorcycle is a motorcycle is a motorcycle, and, because it is what it is, it is inherently not safe to crash in.” In other words, ap-pellee asserts that a motorcycle cannot be made crashworthy and the crashworthiness doctrine cannot logically, or in commonsense, be extended to motorcycle manufacturers. We reject that argument.

It is clear that the crashworthiness doctrine is simply an aspect of basic principles of negligence and we have no difficulty in finding that these principles extend to motorcycle manufacturers as well as to automobile manufacturers. It is just as foreseeable that a motorcycle will be involved in an accident as it is foreseeable that an automobile will be involved in an accident. Foreseeability is the conceptual cornerstone of the crashworthiness doctrine.

In Bolm v. Triumph Corporation, 33 N.Y.2d 151, 350 N.Y.S.2d 644, 305 N.E.2d 769 (N.Y.1973), the Court of Appeals of New York applied the holding in Larsen to a case in which recovery was sought against the manufacturer of a motorcycle for an alleged defect in design which, though it played no part in causing the accident, aggravated or contributed to the plaintiff’s injuries. The entire opinion in that case was devoted to the question whether the court should adopt the crashworthiness doctrine. There was no mention of the fact that the crashworthiness doctrine had previously been applied only in suits against automobile manufacturers. The court simply assumed without discussion that, for transportation purposes, a motorcycle is as much a motor vehicle as an automobile and the scope of reasonably foreseeable use is the same. We agree.

Appellee further argues that the crash-worthiness doctrine applies only in the event of a “secondary collision,” which ap-pellee defines to mean contact between an occupant of a motor vehicle and a component of the vehicle. Appellee points out that Larsen, Evancho, and Bolm all involved secondary collisions; whereas, in this case, appellant’s injuries were inflicted by forces or objects extraneous to the motorcycle.

There is nothing in the rationale of the cited cases, or in logic, which would justify such a restrictive interpretation. We agree with appellant that the same results would have been reached in those cases had the injuries been caused by contact with a substance unconnected with the vehicle in which the injured party was riding; for example, as appellant suggests, impact with another vehicle or with the pavement resulting from the swinging open of a defectively designed door.

We hold, therefore, that the crash-worthiness doctrine applies to motorcycle manufacturers and applies in this case notwithstanding the absence of a “secondary collision.”

Having passed that hurdle, we address the question whether appellant’s counts for breach of implied warranty and strict liability should stand. Arguing that they should not, appellee says that the crashworthiness doctrine allows recovery only on the ground of common law negligence and that the court in the Evancho case expressly foreclosed recovery on the theories of strict liability and implied warranty.

Appellant, on the other hand, argues that the court in Evancho did not address this question at all. We agree. In the first place, recovery in the Evancho case was sought only for negligence. In the second place, the doctrine of strict liability was not adopted by the Florida Supreme Court until six months after the decision in Evancho, when the court issued its opinion in West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 (Fla.1976).

In the West case, the court added the theory of strict liability to the traditional theories of negligence and breach of implied warranty as available vehicles for recovery in products liability cases. The theory of strict liability adopted by the court was the expression of liability contained in Section 402(a) of American Law Institute Restatement of Torts (2d), which states that liability may be imposed on a manufacturer who produces a product in a defective condition unreasonably dangerous to the user or consumer or to his property and physical harm is thereby caused to the ultimate user or consumer, or to his property.

The court identified the theory of strict liability with the theory of breach of implied warranty, pointing out that although these are two parallel but independent bodies of products liability law, the notion of “defective condition unreasonably dangerous to the user or consumer or to his property” is not different from the notion of “unmerchantability” as applied in warranty law. The court said that strict liability means negligence as a matter of law or negligence per se, the effect of which is to remove the burden from the user of proving specific acts of negligence. It pointed out that the adoption of the doctrine of strict liability in tort does not result in the demise of the contractual remedy based on implied warranty. If the user is injured by a defective product, but the circumstances do not create a contractual relationship with the manufacturer, then the vehicle for recovery could be in tort for negligence or on strict liability. If there is a contractual relationship with the manufacturer, the vehicle of implied warranty remains.

Thus it can be seen that a given set of facts can support alternative theories of recovery in a products liability case, in tort for negligence or strict liability, and in contract for breach of implied warranty. There is nothing in the conceptual foundation of the crashworthiness doctrine which prevents these theories of recovery from being as available in a crashworthiness case as in any other products liability case. On the contrary, intended use is a common element of these avenues of recovery, and the crashworthiness doctrine establishes as a matter of law that involvement in a collision is a foreseeable and, therefore, intended use of a motor vehicle. Badorek v. General Motors Corp., 11 Cal.App.3d 902, 90 Cal.Rptr. 305 (1970); 24 Vand.L.Rev. 862 (1971).

We hold that the allegations of appellant’s counts against appellee for negligence, breach of warranty, and strict liability are sufficient to state a cause of action on each of those theories of recovery. The negligence count alleges that appellee owed a duty of reasonable care to appellant because it was reasonably foreseeable to appellee that motorcycles manufactured and designed by it may be involved in accidents, and that this duty was breached by appellee’s failure to equip the motorcycle upon which appellant was a passenger with a safety device to protect passengers’ legs from injuries when involved in accidents. The breach of implied warranty count alleges the existence of an implied warranty by appellee that its motorcycles are reasonably fit for ordinary use as motorcycles upon which passengers can be transported with a reasonable degree of safety, and that a breach of that warranty occurred when ap-pellee failed to provide any safety device on its motorcycle to protect passengers’ legs during collisions. The strict liability count alleges that when placed on the market by appellee, the motorcycle in question contained a defect that was unreasonably dangerous to passengers in that there was no safety device to provide any protection for passengers’ legs in the event of a collision.

Whether a jury will agree with any of appellant’s assertions of liability is another matter; but at the least, appellant is entitled to present to a jury the question whether appellee failed to use reasonable care, or breached its implied warranty of merchantability, or manufactured an unreasonably dangerous product.

Reversed with directions that appellant’s counts against appellee be reinstated and for further proceedings consistent with this opinion.

Reversed.

HOBSON, A. C. J., and RYDER, J, concur.

      . See §§ 672.314-315, Fla.Stat. (1977).


text:
    Danny Byron MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 78-1284.
    District Court of Appeal of Florida, Second District.
    April 25, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defenders, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed is affirmed, but this case is remanded for resentencing of appellant.

Appellant pled nolo contendere to the charge of robbery with a weapon and was given a life sentence. This sentence is excessive. Robbery with a weapon is a first degree felony, § 812.13(2)(b), Fla.Stat. (1977), punishable by a maximum sentence of 30 years. § 775.082(3)(b), Fla.Stat. (1977). The information did not allege the use of a firearm or deadly weapon, which would have made a life sentence permissible under Section 812.13(2)(a), Florida Statutes (1977).

The cause is therefore remanded with instructions to reduce appellant’s sentence to 30 years. Appellant need not be present for this purpose.

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


text:
    A. P. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 78-1409.
    District Court of Appeal of Florida, Second District.
    April 25, 1979.
   PER CURIAM.

A. P. Harris appeals the denial of his motion to vacate his judgment and sentence for carrying a concealed weapon, to wit: a pistol. The motion was filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. Appellant contends that his conviction is invalid because a pistol is not a firearm.

We disagree. The First District has recently held that a pistol is a firearm within the meaning of Section § 790.001(6), Florida Statutes (1977). Martin v. State, 367 So.2d 1119 (Fla. 1st DCA 1979). We agree with our sister court and therefore affirm the trial court’s denial of appellant’s motion.

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


text:
    Hazel MORGAN, Brenda Morgan, Linda Morgan, Hazel Morgan, as Administratrix of the Estate of James Morgan, Deceased, and Ollie Ophelia Morgan, Deceased, and Hazel Morgan, as Guardian of James Wilson Morgan, Jr., a minor, Appellants, v. GROWERS MARKETING SERVICE, INC., and Melon Harvesting, Inc., Appellees.
    No. 78-1469.
    District Court of Appeal of Florida, Second District.
    April 25, 1979.

      Edna L. Caruso, West Palm Beach and Horace E. Hill, Daytona Beach, for appellants.
    A. H. Lane, of Lane, Massey, Trohn, Clarke, Bertrand & Smith, P. A., Lakeland, for appellee Growers Marketing Service, Inc.
    Daniel A. Carlton and Harry W. Haskins, of Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, P. A., Sarasota, for ap-pellee Melon Harvesting, Inc.
   PER CURIAM.

In this wrongful death action for damages arising from the death of James Morgan, a farm laborer involved in the harvesting of watermelons, the trial court entered final summary judgments in favor of appel-lee/defendant Growers Marketing Service, Inc. and appellee/defendant Melon Harvesting, Inc. The trial court found that there were no genuine issues of material fact and that each appellee was entitled to judgment as a matter of law. We disagree and reverse.

On motion for summary judgment, the burden of proof is on the moving party to show the absence of any genuine issue of material fact, and all doubts and inferences must be resolved against the movant. Wills v. Sears, Roebuck & Company, 351 So.2d 29, 32 (Fla.1977); Holl v. Talcott, 191 So.2d 40 (Fla.1966).

We have carefully reviewed the rather lengthy record in the application of the above-stated rule, and we conclude that it cannot be said that appellees met their “. . . burden of showing conclusively that genuine issues of material fact do not exist.” Holl v. Talcott, supra, 191 So.2d at 47. See also Tamiami Builders, Inc. v. Smith, 305 So.2d 58 (Fla.2d DCA 1974).

On the contrary, the record herein reveals the presence of issues of material fact, including, inter alia, the employment status of James Morgan at the time of his death in relation to appellee Growers Marketing Service, Inc.; whether appellee Growers had, in fact, completed its job and left the premises prior to the fatal accident; whether appellee Growers had given Sam and David Gadsden permission to use the watermelon loading and grading machine which was involved in the death of Morgan; and, as to appellee Melon Harvesting, Inc., whether Melon was the owner of the aforesaid machine, as alleged in appellants’ complaint, but denied by Melon in answer to the complaint, in the face of the sworn statement of the co-defendant, appellee Growers, on discovery that Growers leased the machine from Melon, the owner of the machine. Further, that if Melon was the owner of the machine, it failed to carry its summary judgment burden of showing it was, in no way responsible for the accident.

Accordingly, the final summary judgments appealed from are hereby REVERSED, and this cause is remanded for further proceedings consistent herewith.

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


text:
    Ronnie Eugene STACEY, Appellant, v. STATE of Florida, Appellee.
    No. 78-1620.
    District Court of Appeal of Florida, Second District.
    April 25, 1979.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

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

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

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

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


author: DANAHY, Judge.

text:
    Dorothy M. HUGHES, Appellant, v. Howard S. IRONS et al., Appellees.
    No. 78-1733.
    District Court of Appeal of Florida, Second District.
    April 25, 1979.

      Charles J. Cheves of Cheves & Rapkin, Venice, for appellants.
    Robert G. Jacobson of Farr, Farr, Hay-mans, Moseley & Odom, Port Charlotte, for appellee Howard S. Irons.
   DANAHY, Judge.

Appellant invested $17,500 in a joint venture with appellees on the basis of an oral agreement. She brought this suit to recover the amount of her investment on the ground that appellees failed to perform their obligations under the agreement and misused appellant’s cash contribution. She obtained a judgment for $17,500 plus the sum of $5,019.61 in prejudgment interest. In response to appellees’ post trial motions, the trial judge entered an order amending the final judgment to eliminate the prejudgment interest. Appellant has brought that order before us for review and challenges it on several grounds. One of the appellees cross-appeals, asserting that the trial judge erred in not granting his motion for a new trial in its entirety.

We find only one point to have merit. We agree with appellant that she is entitled to prejudgment interest on the principal sum awarded to her.

The joint venture of the parties was put together for the purpose of acquiring a piece of real property. The arrangement was informal and not clearly articulated, but it is undisputed that appellant did in fact pay the sum of $17,500 to appellees and in return was to have a 25% interest in the property purchased. It was appellant’s understanding that two of the appellees were to invest a like sum of $17,500 each in cash, and the third was to pay the existing mortgage on the property.

Appellant claims that the terms of the joint venture agreement were breached and her funds diverted on September 28, 1973, the date on which the purchase of the property by the joint venture took place. Therefore, appellant argues, she is entitled to interest on her cash investment from that date. We agree.

At closing appellees took title to the property in their names; appellant was not named as a grantee. We cannot say that this alone constituted a breach of the joint venture agreement, since it is not clear that appellant’s interest was to be represented by an undivided one-fourth ownership interest of record. Appellees never denied that appellant held a 25% interest in the joint venture.

However, at closing none of the appellees made any cash investment toward acquisition of the property. The purchase price was $60,000. Appellees obtained a mortgage loan of $30,000 covering the property and assumed an existing mortgage of approximately $22,300, for a total of $52,300. A net credit from prorated items supplied about.$100 of the purchase price. The balance of approximately $7,600 came from appellant’s funds.

Appellant’s cash investment was placed in a bank account controlled by appellees and designated as the “Bay Harbor Trust Account.” Rentals from the property acquired were added to the account later as they were collected. Approximately $7,600 from the account was disbursed when the property in question was acquired. $5,500 was paid from the account as a loan to one of the appellees. The remaining funds were used to carry the property for as long as those funds held out — that is, to pay for utilities, insurance, taxes, and other cash expenses, and to make payments on the two mortgages encumbering the property. Eventually appellees defaulted in their mortgage payments and the mortgage holders foreclosed. The entire enterprise was lost.

Appellant’s theories of recovery in this case were in both contract and tort. The trial judge found that she was entitled to recovery both for breach of contract and because the circumstances and appellees’ conduct gave rise to a resulting or constructive trust for appellant’s benefit.

As far as appellant’s entitlement to prejudgment interest is concerned, it matters not whether her recovery is viewed as being grounded in contract or in tort. Her claim was liquidated. In actions ex con-tractu, prejudgment interest is allowable when a claim is liquidated, computed from the date the debt is found to be due. Parker v. Brinson Construction Company, 78 So.2d 873 (Fla.1955); Town of Longboat Key v. Carl E. Widell & Son, 362 So.2d 719 (Fla. 2d DCA 1978). In a tort action, prejudgment interest is allowable when a claim is liquidated and arises out of a contract, computed from the date the cause of action arose. Parker v. Brinson Construction Company, supra; Srybnik v. Ice Tower, Inc., 183 So.2d 224 (Fla. 3d DCA 1966).

Appellees’ argument to the trial judge which persuaded him to disallow prejudgment interest, and the argument appellees make here, is that appellant sought the return of trust funds held for her benefit and the rule, as stated in Everglade Cypress Co. v. Tunnicliffe, 107 Fla. 675, 148 So. 192 (1933), is that interest is not allowable on trust funds.

Appellees cannot so easily escape the full measure of the consequences of their actions. Even assuming, though it is by no means clear, that appellees originally received and held appellant’s funds as trustees of an express trust for her benefit, the moment that those funds were misused and diverted to appellees’ own uses and benefit, the relationship of debtor and creditor arose and interest is properly allowable as compensation to appellant from that date. Southeastern Mobile Homes, Inc. v. Transit Homes, Inc., 192 So.2d 53 (Fla. 2d DCA 1966). The rule in Everglade Cypress Co. v. Tunnicliffe, supra is not made applicable by the fact that the funds are restored through the imposition of a trust arising by operation of law.

Accordingly, we reverse the order of the trial judge amending the final judgment in this case to eliminate the award of prejudgment interest and remand with instructions that the final judgment be further amended so as to award prejudgment interest to appellant at 6% on $17,500 from September 28, 1973.

Reversed and remanded.

GRIMES, C. J., and OTT, J., concur.