author: PER CURIAM. GRIMES, Chief Judge,

text:
    STATE of Florida ex rel. Charles Patrick NORMAN, Petitioner, v. The Honorable Arden Mays MERCKLE and the Honorable J. Rogers Padgett, Circuit Judges of the Thirteenth Judicial Circuit In and For Hillsborough County, State of Florida, Respondents.
    No. 78-2168.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1979.

      Jack Johnson, Public Defender, Bartow, Wayne Chalu, Asst. Public Defender, Tampa, and Judge C. Luekey, Jr., Public Defender, Simson Unterberger, Asst. Public Defender, Tampa, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for respondents.
   PER CURIAM.

This Petition for Writ of Prohibition seeks to prohibit petitioner from being tried for first degree murder on the ground that the time for trial under the speedy trial rule had expired when petitioner filed his motion for discharge (denied) below. This court issued the rule on December 8, 1978 and a response and a reply to the response have subsequently been filed.

On April 5, 1978 petitioner was arrested for the conduct giving rise to the first degree murder charge (the indictment was filed on April 9, 1978). Without any extension, the 180 days under the speedy trial rule would have permitted a trial through October 2, 1978. On August 16, 1978 the state filed both a motion for continuance and a motion for extension of speedy trial. Both motions were for the purpose of gaining additional time to secure the presence of one Keith Chee-a-Tow, a material witness who was in another country. In the motion for continuance the state alleged the unavailability of the witness and prayed for a continuance, not asking for any specific length of time. The motion for extension of speedy trial incorporated the motion for continuance by reference and asked that the court enter an order “staying the ruling of the speedy trial period until the presence of Keith Chee-a-Tow can be arranged.” On August 25, 1978 there was a hearing on the motion for continuance and motion for extension of speedy trial. The most important relevant portions of said hearing are as follows:

[MR. CANNELLA, ASST. STATE ATTORNEY] I would suggest, Your Honor, that I can cite you case law that provides that you do have the discretion to enter such an order extending the speedy trial time. I have represented to the Court that I am not asking this Court — and I represented here to Mr. Unterberger — to completely toll the running of the speedy trial. I think that is an unfair and uncalled for request by the State. I simply want enough time, not chargeable to the State, to seek the presence of this material witness. If I can properly, and within a reasonable period of time, report to the Court that he is going to be here and can be here and can be readmitted to the Bahamas, then I am going to do so.
By the same token, if I find out he is not coming, I am going to come in here and announce I can’t obtain this man’s presence and we are ready to proceed.
THE COURT: All right. How long do you consider a reasonable time?
MR. CANNELLA: I think in view of the Rule, the portion of the Rule allows me two continuances as I read into the record, two continuances. The first one, Your Honor, I would like to have for three weeks. That is twenty-one days.
MR. CANNELLA: I have stated on the record that I am not asking, even though I know the case law provides for that interpretation, I am not asking for a tolling of the speedy trial time. I am asking for a specific number of days. As I indicated previously, I feel it is unfair under the circumstances to toll it completely.
* * * * * *
THE COURT: All right. I am going to grant the motion for a twenty-one day extension.
MR. CANNELLA: Your Honor, if we could just—
THE COURT: Twenty-one days.
MR. CANNELLA: Your Honor, if we could just keep the case off the docket until, or during that twenty-one days, just keep it off, so that I can keep the Court and Mr. Unterberger advised of what is going on. Then, at a period prior to the running of the twenty-one days, we will put the case back on the docket and set it for a trial date. Is that satisfactory?
THE COURT: All right.
MR. UNTERBERGER [DEFENSE COUNSEL]: Apparently, the Court is finding that the State has demonstrated an exceptional circumstance—
THE COURT: Yes.
MR. UNTERBERGER: —entitling them to an extension of time?
MR. CANNELLA: Of twenty-one days.
MR. UNTERBERGER: Which the Court happens to be limiting to twenty-one days?
THE COURT: Twenty-one days.
MR. CANNELLA: Further, you have my assurance on the record that I am saying I don’t want the—
MR. UNTERBERGER: I understand that.
MR. CANNELLA: —the portion of the case law that says it is an absolute toll of the speedy trial rule which you could easily overcome with a sixty-day demand, anyway.

On the same day the trial judge granted both the motion for continuance and motion for extension of speedy trial by way of “Motion Heard, Considered and Granted” stamps. The motion for continuance stamp also had written in “Date to be set by Mr. Cannella at a future date.” The motion for extension of speedy trial stamp stated “Granted for 21 days.”

On September 12, 1978 the state filed a motion to take deposition to perpetuate testimony reciting that the witness mentioned above would not leave the Bahamas because he would not be guaranteed re-entry. A hearing on this motion was held on September 15, 1978 and the motion was granted on September 15, 1978, again by a stamp on the face of the motion.

On October 31, 1978 petitioner filed his motion for discharge in the trial court alleging that the speedy trial time had expired. The trial judge denied the motion for discharge on November 3, 1978, and set the trial for January 8, 1979, finding that petitioner’s right to speedy trial both under the speedy trial rule and the constitution was not denied.

We are faced again with a difficult situation calling for an interpretation of two potentially conflicting sections of the Florida speedy trial rule. Rule 3.191(d)(2) provides for a written order of the court extending the speedy trial time for various specific causes, and additionally for “exceptional circumstances as hereinafter defined . .” Rule 3.191(f) defines exceptional circumstances. The events present in this case, the unavailability of a witness, squarely fall within the exceptional circumstance covered by Rule 3.191(f)(iii). Rule 3.191(f) also provides that “[Ujnder the foregoing circumstances the court may set a new trial date within a reasonable time.” The question devolves as to whether the specific extension of time given in this case under (d)(2) limits the continuance and setting the case within a reasonable time thereafter pursuant to (f).

We find the facts of this case strikingly similar to those in King v. State, 303 So.2d 389 (Fla.3d DCA 1974), cert. den. 314 So.2d 775 (Fla.1975). In King, defendant was arrested on April 4, 1973 and trial was set for October 17, 1973. The state moved for a continuance because of the unavailability of a witness. The trial court granted a 30 day extension of the speedy trial rule but also set trial for December 11, 1974, which date was in excess of the 30 day extension period. The Third District Court of Appeal held that once the continuance was granted “. . . the quantitative provision of the rule was no longer applicable,” and defendant’s right to a speedy trial “then was measured by constitutional safeguards.” The court also held that pursuant to Fla.R. Crim.P. 3.191(f), the court may then set a trial date within a reasonable time. Thus, it was held that the continuance for “exceptional circumstances” took precedence over the specific 30 day extension of time. It is of some importance to note that the Florida Supreme Court denied certiorari in King.

We are somewhat troubled by the broad language in King. However, we think that the narrow holding of King is applicable under the totality of circumstances in this case. Included in such circumstances are the following:

1. Both the motion for extension of time and the motion for continuance herein were based on an “exceptional circumstance” pursuant to Rule 3.191(f), as opposed to a ground for extension only set forth in Rule 3.191(d)(2). The continuance being filed pursuant to the continuance rule, 3.190(g), does not change the fact that the grounds set forth therein were cognizable under 3.191(f) and were so argued at the hearing.

2. Neither motion requested a specific number of days. In fact, the motion for extension asked that the speedy trial period be stayed until the presence of the witness could be arranged. It was only at the hearing that the assistant state attorney limited his request for extension to 21 days.

3. While the assistant state attorney specified that he was not asking for “an absolute toll of the speedy trial rule,” he did not promise to limit the delay necessary to obtain the witness’ testimony to 21 days.

4. Although the court’s granting of the motion for extension specified 21 days, the court’s granting of the continuance motion did not specify a specific length of time. Since the motion was granted pursuant to Rule 3.191(f), the court could properly set a trial date “within a reasonable time.”

5.The assistant state attorney kept the court advised of the progress in securing the testimony of the witness in question and subsequent proceedings were held thereupon.

We construe a “reasonable time” not to constitute an absolute tolling of the speedy trial rule, thereby limiting defendant’s right solely to constitutional speedy trial safeguards. In this respect we differ from the King majority. Rather, we construe the language allowing the court to set a new trial date within a reasonable time to mean a reasonable time. considering the exceptional circumstances for which the continuance was granted. In this case, we hold that the setting of the trial herein for January 8, 1979 was not an unreasonable length of time in view of the continuing unavailability of the witness in question.

Therefore, this Petition for Writ of Prohibition is hereby denied.

HOBSON and BOARDMAN, JJ., concur.

GRIMES, C. J., dissents with opinion.

GRIMES, Chief Judge,

dissenting.

The motion for continuance stated that it was filed pursuant to the authority of Fla. R.Crim.P. 3.190(g), which has nothing to do with the speedy trial rule. Therefore, I have difficulty in concluding that the granting of the continuance by itself carried with it the speedy trial time, though I concede that the two motions were being considered together and the court certainly did not intend that the trial should be reset on a date beyond the speedy trial time.

My real departure from the majority view rests upon the fact that the prosecuting attorney specifically requested that the speedy trial time be extended only twenty one days and that the order of extension was limited on its face to that period of time. It is evident from the colloquy that the prosecutor intended to seek a further extension of the speedy trial time if he was unable to secure the deposition of the witness and have the trial reset within the speedy trial time as extended by the twenty one days, to wit: October 23, 1978. However, no second extension of the speedy trial time was ever sought or obtained.

I would much prefer not to discharge a defendant, particularly one charged with murder, where the failure to bring him to trial within the speedy trial time appears to have been an oversight and no real prejudice to the defendant has been shown. Nevertheless, I cannot escape what I perceive to be the mandate of the speedy trial rule. I must, therefore, respectfully dissent.

      . The broad language evidently also’ troubled one member of the King panel, who specially concurred in the decision.

      . As noted above, though, we adopt King insofar as it holds that a continuance granted under the exceptional circumstances provision of the speedy trial rule in some cases may take precedence over a simultaneous specific extension order.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jessica CARTER, Appellant, v. The STATE of Florida, Appellee.
    No. 78-959.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Rehearing Denied April 30, 1979.
    Charles F. Atwood, III, Miami, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Defendant, Jessica Carter, appeals the denial of her motion to withdraw her guilty plea to second degree murder on the ground that the plea was not freely or voluntarily tendered in that she was not advised as to the elements of the crime to which she entered her guilty plea.

Jessica Carter was indicted for first degree murder. She retained private counsel to represent her and initially pled not guilty. Subsequently, her counsel entered into plea negotiations with the prosecution; and upon counsel’s recommendation, Carter withdrew her not guilty plea and tendered a guilty plea to second degree murder. At the ensuing sentencing hearing, Carter, now represented by the office of the public defender, moved to withdraw her guilty plea and to reinstate her plea of not guilty. After hearing the testimony of Carter and her former counsel, the court denied the motion to withdraw and sentenced her to 10 years imprisonment.

The record reflects that Carter is a college student of average intellectual capacity. The transcript of the plea colloquy adequately illustrates that she answered in the affirmative as to the voluntariness of the plea and that the elements of the crime of second degree murder (to which she stated that she was tendering her guilty plea) were read to her. The voluntariness of her plea is further reflected by the testimony rendered by the defendant and her former privately retained counsel at the hearing on her motion to withdraw her guilty plea. Carter admitted shooting the victim. Her former counsel testified that although he recommended plea negotiations with the prosecution, he would still be willing to go to trial.

The burden is upon the defendant who moves to withdraw a previously tendered guilty plea to demonstrate that such plea was infected by her misapprehension, undue persuasion, promise, mistake, fraud, inadvertence or ignorance, or was entered by one not competent to know its consequence or was otherwise involuntary, or where it appears that the ends of justice .would be served by the withdrawal of such a plea. State v. Braverman, 348 So.2d 1183 (Fla.3d DCA 1977).

Jessica Carter having failed to demonstrate any of the above reasons to set aside her previously tendered guilty plea to second degree murder, the judgment of conviction and sentence are affirmed.

Affirmed.

ON PETITION FOR REHEARING

On petition for rehearing counsel for Ms. Carter has correctly pointed out that the specific legal elements of second degree murder were not read to her at the plea bargain hearing. Nevertheless, her former privately retained counsel at the hearing on her motion to withdraw testified that he explained the charges to her and the possibility of a plea bargain. We, therefore, adhere to the holding in our original decision.

Petition denied.


text:
    HARRY PEPPER & ASSOCIATES, INC., a Florida Corporation, Lewis Bass, and Charles L. Weisberg, Petitioners, v. CITY OF CAPE CORAL, Florida, a municipal corporation, Don Graf, Mayor, and Donald Roberts, Paul L. Fickinger, Edward C. Coleman, Arnold Weisberg, Gary L. Hinote, Lyman J. Moore and Hugh Gamble, Jr., Councilmen, as and constituting the City Council of the City of Cape Coral, Florida, and Gulf Contracting, Inc., a Florida Corporation, Respondents.
    No. 78-2006.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 1979.

      Philip T. Weinstein, Miami, for petitioners.
    Richard V. S. Roosa, of Aloia, Dudley & Roosa, Cape Coral, for respondents City of Cape Coral and Councilmen.
    Daryl J. Brown, of Rosin, Abel, Band, Rosin & Brown, Chartered, Sarasota, for respondent Gulf Contracting.
   PER CURIAM.

We originally requested a response to this petition for certiorari because we perceived the petition as containing substantial merit. However, upon consideration we note that the order refusing petitioners’ right to amend their complaint is interlocutory in nature, and petitioners will always have an adequate remedy to attack the propriety of the order by way of appeal from the final judgment. Pic v. Hoyt Development Co., Inc., 309 So.2d 586 (Fla.2d DCA 1975); Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla.2d DCA 1973).

Accordingly, the petition for writ of cer-tiorari is denied.

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


text:
    J. Champneys TAYLOR, Petitioner, v. Sue G. CAPUTO and Warren J. Caputo, her husband, Respondents.
    No. MM-305.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1979.
    James E. Cobb of Mathews, Osborne, Ehrlick, McNatt, Gobelman & Cobb, Jacksonville, for petitioner.
    Thomas M. Baumer, Jacksonville, for respondents.
   PER CURIAM.

Finding no departure from the essential requirements of the law, the petition for writ of certiorari is

DENIED.

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


text:
    Robert A. DIEWS and Robert A. Diews, Inc., a Foreign Corporation, Appellants, v. John W. BLOYE and L. Grace Bloye, Appellees.
    No. 78-1322.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 1979.

      William Randolph Klein, Sarasota, for appellants.
    D. Turner Matthews, Bradenton, for ap-pellees.
   PER CURIAM.

We hereby consider this appeal as a petition for a writ of certiorari, and we deny the petition.

Certiorari denied.

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


author: GRIMES, Chief Judge.

text:
    STRATHMORE RIVERSIDE VILLAS CONDOMINIUM ASSOCIATION, INC., Appellant, v. PAVER DEVELOPMENT CORPORATION et al., Appellees.
    No. 78-140.
    District Court of Appeal of Florida, Second District.
    March 2, 1979.
    Rehearing Denied April 18, 1979.

      Benjamin P. Reese, II of Stinnett & Stin-nett, Sarasota, for appellant.
    Robert P. Rosin of Rosin, Abel, Band, Rosin & Brown, Chartered, Sarasota, for appellees.
   GRIMES, Chief Judge.

This is an interlocutory appeal and a cross-appeal from an order entered upon motion to dismiss several counts of a complaint.

The appellant is a nonprofit corporation which operates a condominium known as Strathmore Riverside Villas. The appellant, which is controlled by the unit owners of the condominium, filed a suit against the appellees, the developer of the condominium and certain individuals associated with the developer.

The fifth amended complaint contained six counts. The first four counts sought damages from the developer for the reduction in value of the condominium units and the common elements caused by the breach of implied warranties. Count I, brought on behalf of those appellant’s members who had purchased their units directly from the developer, alleged a breach of implied warranties of compliance with plans and specifications approved by the building and zoning department of the City of Sarasota and of compliance with applicable building codes. Count II was predicated upon the same theory but was brought on behalf of those members who were not in privity with the developer because they had acquired their condominium units from previous purchasers. Count III was prosecuted on behalf of original purchasers seeking damages caused by the breach of implied warranties of fitness and merchantability. Count IV was similar to Count III except that it sought recovery on behalf of the unit owners who were not in privity with the developer. Upon the developer’s motion, the court dismissed Counts II and IV.

In Gable v. Silver, 264 So.2d 418 (Fla.1972), the Florida Supreme Court adopted the decision of the Fourth District Court of Appeal which had held that implied warranties of fitness and merchantability extended from builder-sellers to the purchasers of new condominium homes. In the course of its opinion our sister court had said:

We ponder, but do not decide, what result would occur if more remote purchasers were involved.

Gable v. Silver, 258 So.2d 11, 18 (Fla. 4th DCA 1972). By virtue of the order entered below, we must now respond to that unanswered query.

In recent years a number of other jurisdictions have held that implied warranties of fitness and merchantability apply to the purchase of new homes. See Annot., 25 A.L.R.3d 383 (1969). Only Indiana, however, has extended this doctrine to the purchase of a used home and then only in the case of a latent defect. Barnes v. Mac-Brown and Company, Inc., 264 Ind. 227, 342 N.E.2d 619 (1976). At least two other states have refused to apply the doctrine to remote purchasers. Oliver v. City Builders, Inc., 303 So.2d 466 (Miss.1974); H. B. Bolas Enterprises, Inc. v. Zarlengo, 156 Colo. 530, 400 P.2d 447 (1965). See also Graham v. United States, 441 F.Supp. 741 (M.D.Tex.1977), in which the federal district court ruled that Texas law does not recognize implied warranties in the sale of a used home.

In Oliver v. City Builders, Inc., supra, the purchaser urged the court to depart from the previously existing rules relating to real estate transactions and to substitute the principle of strict liability in tort. In rejecting this contention, the Mississippi court pointed out why privity continues to be a viable concept in the sale of homes:

It should be noted that, while the present litigation involves a dwelling, a rule applying the doctrine of strict liability in tort with respect to a dwelling necessarily would, in reason, require its application, with equal force, to structures of every kind standing upon, and which are part of, real estate. Thus, in case of a transfer of a tract of land by a vendor, however remote from the builder such vendor might be, the purchaser, however remote in title from the original owner he might be, would be able to require the builder of any structure standing upon it to respond in damages for any deficiency therein, whether the structure should be a dwelling, outhouse, barn, office or any other type of building. Material and workmanship which may go into a structure are of infinite variety. An original purchaser of land on which a building is situated, for reasons of economy or for any other reason, may be satisfied, and may accept it from the builder in any condition in which it may be. He may waive defects, and he may do so by his actions or by writing or orally or by the mutual assent of the parties. Circumstances may be such between the original purchaser and the builder, that the former may be estopped to complain of the quality, type, class or kind of construction or material, or as to the strength, durability and appearance of the structure.
It would be strange indeed if, when the original purchaser conveyed the property to another, that his vendee could resort to the builder for damages for deficiencies in workmanship or materials which the original purchaser from the builder had accepted.

Many unforeseen ramifications could arise should we opt for a rule holding builders or developers liable to remote purchasers for the diminished value of a home allegedly caused by defects in construction. If this step is to be taken, then we believe it should be accomplished by the legislature rather than by this court. We are unimpressed by appellant’s argument that the uniqueness of condominium living requires a different rule than with respect to ordinary houses. Thus, we hold that the court correctly struck Counts II and IV.

We now turn to the cross-appeal. Count V pleaded a lease between certain individuals who were the developer’s alter ego, as lessors, and appellant, as lessee, which contained a clause making appellant responsible for all property taxes on the condominium’s recreation and common facilities, the subject of the lease agreement. Appellant then alleged that the county tax assessor increased the 1974 valuation of the lease property by $456,500 and mailed the appropriate notice to the individuals or to the developer, but that they failed either to notify appellant or to appeal the increase in valuation. Appellant further stated in Count V that it successfully appealed the 1975 tax appraisal, thereby saving $4,200 in property taxes. Appellant then prayed for an award of $4,200 to cover the excess tax it had paid in 1974.

We believe the court properly denied appellees’ motion to dismiss Count V. Although appellees refer to the principle that property owners are on notice of the amount of their taxes, this principle is not determinative. Count V sufficiently sets forth a duty on the part of appellees which they allegedly failed to perform. The proof of damages causally related to their breach would be a matter to be determined at trial.

By Count VI appellant sought to set aside the lease as unconscionable. The ap-pellees moved to dismiss this count because it alleged only eight of the nine elements of presumptive unconscionability set forth in Section 718.122(1), Florida Statutes (1977). Appellees overlook subsection (2) of the same statute which states that failure of a lease to contain all of the enumerated elements shall not preclude a determination of unconscionability. The court was unquestionably correct in declining to strike this count.

AFFIRMED.

BOARDMAN and SCHEB, JJ., concur.

      . This interlocutory appeal was taken pursuant to Fla.R.App.P. 4.2 before the effective date of the new appellate rules.

      . More recently, implied warranties of fitness and merchantability have been held to include an implied warranty to immediate purchasers that their condominium units would be built according to specifications contained in plans approved by the appropriate governmental authority. David v. B. & J. Holding Corp., 349 So.2d 676 (Fla. 3d DCA 1977).
        Co., Inc., 336 So.2d 80 (Fla.1976). However, the strict liability principle of West was announced with respect to physical harm caused by the defective product.

      .A similar argument could be made in our case because of our supreme court’s adoption of strict liability of product manufacturers to ultimate consumers. West v. Caterpillar Tractor


author: DANAHY, Judge.

text:
    Stephen J. HATCH and Robert M. Locke, Jr., as general partners of Minot Limited Partnership, Appellants, v. John MINOT, as Trustee, Appellee.
    No. 78-907.
    District Court of Appeal of Florida, Second District.
    March 14, 1979.
    Rehearing Denied April 18, 1979.

      Toby Brigham, of Brigham, Reynolds, Bryne & Moore, Miami, for appellants.
    William M. Hereford, of Strode, Hereford & Taylor, Sarasota, for appellee.
   DANAHY, Judge.

Appellants (the mortgagors) are the purchasers, owners and mortgagors of a tract of vacant land from which a parcel was taken by an action in eminent domain. Ap-pellee (the mortgagee) is the holder of the purchase money mortgage encumbering the tract. The mortgagors, by the filing of a notice of interlocutory appeal, seek review of an order entered in the eminent domain action directing the mortgagors to pay to the mortgagee substantially all of the funds which the condemning authority had deposited in the registry of the court and which the mortgagors had previously been allowed to withdraw. The action otherwise remains pending at the trial level.

APPEALABILITY

In order to consider this matter on the merits, we must first address the threshold question of jurisdiction. The mortgagee does not object to review by this court of the order which the mortgagors wish to challenge. However, that order did not terminate the eminent domain action and thus appears on its face to be non-final in nature; but it does not appear to be within any of the categories of non-final orders which may be reviewed by this court pursuant to Fla.R.App.P. 9.130(a)(3). Accordingly, this cour,t sua sponte raised the question whether the order is appealable either as a non-final order subject to interlocutory appeal under Rule 9.130(a)(3) or as a final order reviewable by this court pursuant to Fla.R.App.P. 9.030(b)(1)(A). The parties were requested to address that question by memorandum prior to oral argument on the merits of the appeal.

Both parties responded with the suggestion that the order is a non-final order in the category specified in subparagraph (a)(3)(C)(ii) of Rule 9.130 as an order which determined the right to immediate possession of the property; that is, the right to possession of the funds which had been deposited as a substitute for the real property taken.

It is true that, in a sense, any order directing the payment of money is an order determining the right to immediate possession of property, the property being the funds required to be paid. But we do not believe that the category described in sub-paragraph (a)(3)(C)(ii) was intended to encompass such an order. In our view, the type of order envisioned by the rule is an order determining the right to immediate possession of specifically identified real or personal property. The rule was intended to list those non-final orders considered to be most urgent and allow them to be appealed immediately rather than to await review upon appeal of the final judgment in the cause. An order directing the payment of money ordinarily does not have that element of urgency.

We have concluded, however, that the order in question is reviewable because it was a final order. It was a final determination of a particular matter which had a character distinct and independent from the original action and which, therefore, was separable from and collateral to that action. Accordingly, the order was final for purposes of appeal.

The condemning authority in this case petitioned for a “quick taking” (the right to take possession and title in advance of final judgment) as provided in Chapter 74, Florida Statutes (1977). Both the mortgagors and the mortgagee were served with a copy of the petition together with summons and a notice of hearing on the request for quick taking pursuant to Section 74.041. The mortgagee, however, did not appear at that hearing. The mortgagors appeared and submitted a written motion for withdrawal of the funds required to be deposited for the parcel taken. The mortgagee was not served with a copy of that motion nor was he given any notice of hearing on that motion.

At the hearing the trial judge granted the request for quick taking and directed the condemning authority, as required by Section 74.051(2), to deposit the sum of $62,-600 into the registry of the court. This was the condemning authority’s estimate of value as set forth in its petition. The trial judge then granted the mortgagors’ motion for withdrawal of those funds.

The mortgagee received a copy of the order of taking and a notice that the condemning authority had made the required deposit. However, the mortgagee did not receive a copy of the court’s order allowing the mortgagors to withdraw the deposited funds. The mortgagee discovered that withdrawal about a year later and subsequently filed a motion requesting, in effect, a rehearing on the matter of apportionment of the funds between the mortgagors and the mortgagee on the basis that the first order was incorrect and the mortgagee had never had an opportunity to be heard on the question.

In an eminent domain proceeding, where there is more than one party asserting a claim to the amount awarded for the property taken, the trial judge is to determine the rights of the interested parties and the method of apportionment of the award. Section 73.101. In this case the parties agree that their rights to the sum which was deposited in the registry of the court are governed by the terms of the mortgage instrument.

The mortgage in question, which bears interest at 8%, is a “wrap-around” purchase money mortgage requiring the mortgagee to make payment on two underlying mortgages from payments made on the purchase money mortgage. It contains a provision which applies in case any part of the mortgaged property is taken for public use. Under the mortgagors’ interpretation of that provision, the mortgagors would be entitled to the entire amount deposited in the registry of the court in this case. The trial judge agreed with that interpretation when he granted the mortgagors’ motion for withdrawal of the funds.

On rehearing, the mortgagee argued that under a proper interpretation of the mortgage agreement, the mortgagee was entitled to the sum of $3,000 for each acre taken, or a total amount of $59,901. The mortgagee conceded that this was the maximum amount to which he was entitled. Therefore, the mortgagee's participation in the eminent domain action would be concluded by the payment to him of the sum of $59,901.

Reversing his prior decision, the trial judge agreed with the mortgagee and entered the order which is the subject of this appeal. That order required the mortgagors to pay to the mortgagee the sum of $59,901 from the monies which the mortgagors had previously withdrawn' from the registry of the court, plus interest at the rate of 6% per annum on that amount from the date of the order which had permitted the withdrawal. This appeal followed.

Our supreme court has said that the test to be employed by an appellate court to determine the finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further .remains to be done by the court to effectuate a termination of the cause as between the parties directly affected. S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974). But the supreme court in an early case recognized that the “cause” need not be the main action; it may be a proceeding in an action which is distinct in itself, and collateral to the main action. An order making a final determination of such a collateral matter is final and appealable. Theo Hirsch Co. v. Scott, 87 Fla. 336, 100 So. 157 (1924). The court recently applied this reasoning in State Farm Mut. Auto Ins. Co. v. Am. Hardware, 345 So.2d 726 (Fla.1977).

We believe that the collateral order rule applies here. The order in question was a final determination that the mortgagee is entitled to the sum of $59,901 from the funds deposited for the property taken. That is the limit of the mortgagee’s participation in the award which might ultimately be made in the action. The matter of entitlement is governed by the terms of a written instrument and involves the interpretation of provisions of that instrument. The determination of the trial judge was final and conclusive of the issue between the parties. It has no bearing on the merits of the action which remains pending.

The federal courts also apply a collateral order rule in determining whether an order is final for purposes of appeal. In support of our position we have the benefit of a decision of a federal court applying that rule in a situation very similar to that presented in this case.

In Lee v. Western Wool Processors, Inc., 313 F.2d 13 (10th Cir. 1962) suit was brought on a promissory note. Monies were deposited in the registry of the court pursuant to a stipulation setting forth an agreement of the parties as to the disposition of those funds. In an ex parte application by the plaintiff and upon the plaintiff’s representations that the defendant had not met the conditions of the stipulated agreement, the plaintiff obtained the full amount of the money on deposit. When the defendant later learned that the deposit had been paid to the plaintiff, it sought an order requiring the return of the money on the basis that defendant was not guilty of any violation of the stipulated agreement. The defendant’s motion was granted and an order was entered requiring the plaintiff to forthwith redeposit with the clerk all monies withdrawn. An appeal was taken from that order and the question was raised, by motion to dismiss, whether the appellate court had jurisdiction to review the order, in that it was not a final decision nor within the purview of those interlocutory determinations which are permitted under applicable federal law.

The court found that the order was final. It observed that the order finalized the matter as to the interpretation of the stipulated agreement and had no bearing on the merits of the underlying action. The court concluded that, therefore, the order fell within that class of orders which finally determine claims of right separable from and collateral to the rights asserted in the main action. That is the case here and we reach the same conclusion.

THE MERITS

As to the merits of the appeal, we agree with the trial judge that under a proper interpretation of the mortgage instrument, the mortgagee is entitled to the sum of $59,901 from the award made in the eminent domain proceedings. Therefore, we affirm the order to the extent that it requires the mortgagors to pay that amount to the mortgagee from the funds previously withdrawn by the mortgagors. However, we agree with the mortgagors that the trial judge erred in requiring the mortgagors to pay interest to the mortgagee at the rate of 6% per annum on that sum.

In support of their position that the requirement of interest was improper, the mortgagors assert that the relation of creditor and debtor did not exist between them and the mortgagee because the parties were simply claimants to the funds deposited. We cannot agree with that characterization of the situation. The mortgagors were found to be holding money to which they were not entitled, but which properly belonged to another. In such a case an order directing payment of the funds to the proper party may require the payment of interest in addition to the principal sum, since the retention of the money has benefited the party who has held it and injured the party to whom it is owed. The fact that there is an honest and bona fide dispute as to whether the debt is actually due has no bearing on the question. The rule is that, if it is finally determined that a debt is due, the person to whom it is due (the creditor) is entitled not only to the payment of the principal of the debt but to interest at the lawful rate from the due date thereof, as compensation for the use of the money by the debtor. Parker v. Brinson Construction Company, 78 So.2d 873 (Fla.1955).

In this rather unusual case, however, the mortgagee has already been paid for the use of the money because the mortgagors have made payments as they came due on the purchase money mortgage. The moment that the mortgagee receives the sum of $59,901 pursuant to the order appealed from, he will be required to apply that sum against the principal balance due. In the meantime, the mortgagee will have received interest on that sum because interest has been paid on the entire balance due on the mortgage unreduced by, and thus including, the sum of $59,901.

The mortgagee argues that, nevertheless, he is entitled to interest because he has been deprived of the option of applying the sum of $59,901 to pay off the two underlying mortgages and thus has been required to pay interest on those two underlying mortgages in the interim. We cannot accept that argument. The mortgagee made no claim to the funds deposited by the condemning authority for a period of some fourteen months after he received notice that the deposit had been made. His failure to obtain that money by appropriate motion was the result of his own inaction, not the action of the mortgagors in withdrawing the funds deposited.

Furthermore, as the mortgagors point out, had the funds not been withdrawn by the mortgagors, but left on deposit in the registry of the court, the mortgagee would not have been entitled to interest earned on the deposit. Any such interest must be credited to the secondary road fund of the county as provided in Section 74.051(3).

The order of the trial judge directing the mortgagors to pay the sum of $59,901 to the mortgagee is reversed to the extent that it requires the mortgagors to pay interest on that sum. Otherwise, the order is affirmed.

Affirmed in part and reversed in part.

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

      . Committee Notes, Fla.R.App.P. 9.130.

      . The trial judge is permitted to allow such a withdrawal under the provisions of Section 74.071.

      . The genesis of the rule is considered to be the decision in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), but the rule was earlier expressed in Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882). The latter case was quoted with approval by the Florida Supreme Court in Theo Hirsch v. Scott, cited in this opinion.


text:
    The MINNESOTA MUTUAL LIFE INSURANCE CO., Appellant, v. Dianne M. McCOMBS, Appellee.
    No. KK-331.
    District Court of Appeal of Florida, First District.
    March 14, 1979.
    Rehearing Denied April 11, 1979.
    Jon D. White, Pensacola, for appellant.
    Paul L. Cummings of Cummings & Tar-buck, Pensacola, for appellee.
   PER CURIAM.

AFFIRMED. National Standard Life Insurance Co. v. Permenter, 204 So.2d 206 (Fla.1967) (Ervin, J., specially concurring).

Appellee’s request for appellate attorney’s fees is GRANTED and the cause is remanded for the trial court to set the amount.

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


author: PEARSON, Judge.

text:
    Howard WATERS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-903.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Rehearing Denied May 9, 1979.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PEARSON, Judge.

Howard Waters was found guilty by a jury of (1) robbery (three counts), (2) unlawful possession of a firearm during a criminal offense, (3) unlawful possession of a firearm by a convicted felon and (4) attempted first degree murder. He was adjudged guilty and sentenced to three consecutive ninety-nine year prison terms for robbery, a thirty year concurrent term for attempted first degree murder, and a withheld sentence on the two possession counts. On this appeal, three points are presented. The first urges reversal because the State failed to make discovery pursuant to the invoked reciprocal discovery rule ’in violation of Florida Rules of Criminal Procedure 3.220(a)(l)(iii) and 3.220(f). We find error and reverse.

The principal issue for the jury to determine in this case was whether or not the defendant was identified as the person who perpetrated the crimes with which he was charged. A witness for the State was De-landrea Humóse. Delandrea was the girlfriend of the defendant. Early in the investigation of the case, she gave a sworn statement which would have been exculpatory to the defendant in that it would have materially aided his contention that he was not the person involved. Delandrea subsequently gave two sworn statements to the prosecutor and defense counsel respectively. In both of these statements, she recanted her former sworn statement to the police and stated entirely different circumstances. But these circumstances would not have been inculpatory to the defendant. Two days prior to trial, the State induced Delan-drea to take a polygraph test resulting in a completely different statement by the witness and which, in addition, resulted in a revelation by her that the defendant had made statements which, if true, would show that the defendant (1) was present at the scene of the crime and (2) induced the witness to make the first, false statement to the police. There is evidence in the record that the prosecuting attorney, instead of complying with the provisions for mutual discovery, withheld the information that Delandrea had changed her story from that given the defense attorney. The record further reveals that on one occasion, the prosecuting attorney informed the defense attorney “. . . that he had a surprise . ” for him and that he further informed the attorney that he had no new statement from the witness Delandrea Hu-móse.

As a result of the State’s failure to comply with the mutual discovery rule, defense counsel not only received the promised surprise but also stumbled into a statement by the witness that her testimony was now true because she had taken a polygraph test which ha.d confirmed it.

The trial judge conducted a hearing on the State’s failure to make discovery of the new statement by the witness and ruled that the State had not breached its duty, thereby interpreting the cited rules as applying only to written statements. This conclusion was in error and the breach of the State’s duty to make continuing discovery resulted in reversible error. See Cumbie v. State, 345 So.2d 1061 (Fla.1977); Stradtman v. State, 334 So.2d 100 (Fla. 3d DCA 1976); and Fla.R.Crim.P. 3.220(a)(l)(iii). It is with reluctance that the court orders a new trial in a case already extensively tried and one resulting in a jury verdict which would otherwise be supported by the evidence. But there is no way to secure a fair trial under the rules for every defendant except to apply those rules to every defendant.

It is not necessary to discuss the remaining points presented. Nevertheless, for the guidance of the trial court in retrying this cause, it is well to point out that this court would hold that reversible error was presented by appellant’s third point in that the court unnecessarily allowed evidence of defendant’s bad character and criminal propensity by admitting evidence of the defendant’s prior conviction for robbery. See State v. Harris, 356 So.2d 315 (Fla.1978), citing Shargaa v. State, 102 So.2d 814, 816 (Fla.1958), and Beagles v. State, 273 So.2d 796 (Fla. 1st DCA 1973).

Accordingly, the judgment and sentence are reversed and the cause remanded for a new trial.


author: LETTS, Judge. STETTIN, HERBERT,

text:
    RYDER SYSTEM, INC., Appellant, v. Leslie Jack O’CONNOR, Appellee.
    No. 77-2326.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1979.
    Rehearing Denied May 11, 1979.

      Ronald P. Weil, of Fowler, White, Burnett, Hurley, Banick & Knight, Miami, for appellant.
    Larry Klein and Frates & Mathison, West Palm Beach, for appellee.
   LETTS, Judge.

This cause is affirmed.

We have given careful consideration to Judge Stettin’s well reasoned dissent, but cannot agree with his conclusion.

The point he believes to be controlling was not raised on appeal. Notwithstanding we would adopt the dissent, but for the existing counterclaim. Fla.R.Civ.P. 1.420(a)(2) clearly mandates that a voluntary dismissal cannot be taken save by leave of court, when a counterclaim has been filed. This vital distinction was fully appreciated by all parties to this cause when one considers the following language from a Motion for a Continuance filed by the plaintiff.

1. A notice of voluntary dismissal without prejudice was filed by plaintiff in this cause on June 15, 1977 and the notice of the intention to take a voluntary dismissal was communicated to defendant on June 14, 1977. Both parties then notified their witnesses and arranged their schedules in accordance with this procedure.
2. Both parties were unaware at the time of the existence of a counterclaim in this cause which prohibits the taking [of] a voluntary dismissal without leave of court.
3.Defendant contacted plaintiffs on June 21, 1977 and indicated its objection to a voluntary dismissal by the plaintiffs but agreed that a continuance of this matter would be in the best interest of all parties concerned. Plaintiff agrees and respectfully requests the cd'urt to grant a continuance and transfer this cause to another docket.

From the foregoing, it is obvious that all parties conceded that the cause could not be dismissed without leave of court and that in fact, it had not been. To us, this chain of events prevented a loss of jurisdiction.

AFFIRMED.

ANSTEAD, J., concurs.

STETTIN, HERBERT, Associate Judge, dissents with opinion.

STETTIN, HERBERT,

Associate Judge, dissenting:

The trial court heard conflicting testimony at a nonjury trial and resolved it in favor of the appellee, who was the plaintiff below. Its ruling is fully supported by the record and should be affirmed without hesitation, but for the plaintiff’s procedural error which vitiates the entire trial.

The complaint sounded in contract seeking recovery upon a policy of major medical insurance issued by Ryder to its employees. Ryder raised as a defense that the expenses claimed were the result of a pre-existing condition. It also counterclaimed to recover those medical expenses previously paid for the plaintiff on the ground of mistake.

Thereafter, the plaintiff served a Notice of Voluntary Dismissal, pursuant to Rule 1.420(a)(l)(i), Florida Rules of Civil Procedure. That notice was served before trial and while there was no pending adverse motion for summary judgment. Under the case law of this State, the plaintiff’s notice was fully and finally dispositive of the plaintiff’s complaint. It did not, of course, affect the counterclaim, but as to the complaint:

“The effect is to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of ‘jurisdiction.’ If the trial judge loses the ability to exercise judicial discretion or to adjudicate the cause in any way, it follows that he has no jurisdiction to reinstate a dismissed proceeding.”

Randle-Easterp Ambulance Service v. Vasta, 360 So.2d 68 (Fla.1978).

The parties proceeded to trial, as indicated above, oblivious to the Notice of Dismissal. No attack by Ryder on this ground has ever been mounted to the final judgment, either-below, or in this Court. None would ordinarily lie except that the issue is one of jurisdiction. If, as indicated in Ran-dle-Eastern, supra, the Notice of Voluntary Dismissal is finally dispositive of the plaintiff’s right to proceed; is self-acting, and is beyond the power of the parties and the lower court to countermand, then any acts performed by the parties and the trial judge after its having been filed are wholly ineffective. The trial and final judgment are nullities.

I would reverse.


author: 'PER CURIAM.

text:
    Alton ADERHOLD, Appellant, v. STATE of Florida, Appellee.
    No. 78-981.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1979.
    Rehearing Denied May 9, 1979.
    Maurice Graham, of Brimmell & Graham, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   'PER CURIAM.

In this appeal the defendant/appellant maintains that the habitual offender statute, Florida Statute § 775.084, 1977, is unconstitutional. The constitutional attack was urged before the trial court and the trial court specifically upheld the constitutionality of the statute. Florida Constitution Article V, Section 3(b)(1) specifically provides that appeals may be taken directly to the Florida Supreme Court from decisions of trial courts initially and directly passing upon the constitutionality of a state statute. To the same effect is Florida Rules of Appellate Procedure 9.030(a)(l)(A)(ii).

It, therefore, appears that the trial court herein initially passed upon the constitutional validity in question and that jurisdiction of this matter is properly within the Florida Supreme Court. See In re Estate of Brown, 114 So.2d 522 (Fla. 2d DCA 1959), 117 So.2d 478 (Fla.1960), and Smith v. Martin, 186 So.2d 16 (Fla.1966). .Therefore, in accordance with Fla.R.App.P. 9.040(b), jurisdiction of this matter is hereby transferred to the Florida Supreme Court. The Clerk of this Court shall transfer all papers filed herein to the Florida Supreme Court and said transfer shall be effected ten days from the date of this opinion.

MOORE and BERANEK, JJ., and FAR-RINGTON, OTIS, Associate Judge, concur.


text:
    COMMODORE PLAZA AT CENTURY 21 CONDOMINIUM ASSOCIATION, INC., Appellant, v. CENTURY 21 COMMODORE PLAZA, INC., Appellee.
    No. 78-1420.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Rehearing Denied May 7, 1979.

      Joseph S. Paglino, Miami, for appellant.
    Prates, Floyd, Pearson, Stewart, Richman & Greer and Gerald F. Richman, Miami, for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. § 718.303, Fla.Stat. (1977); Cuna Mutual Insurance Society v. Adamides, 334 So.2d 75 (Fla. 3d DCA 1976); Ingerson v. State Farm Mutual Automobile Insurance Co., 272 So.2d 862, 864 (Fla. 3d DCA 1973); United States Fidelity and Guaranty Co. v. Hendry Corp., 391 F.2d 13, 20-21 (5th Cir. 1968).


author: ANSTEAD, Judge. DOWNEY, Chief Judge,

text:
    Neil K. BARBER et ux., Joseph Gorelkin, et ux., Peter L. Hugle, Louis E. Molans, et ux., John F. Pearl, Louis Rosenbush, Jr., et ux., Hugo M. Pfaltz, Jr., Executor of the Estate of E. Donald Steinbrugge, Doris Sullivan, John Anthony Testone, Foster F. Gerlach, et ux., Marcella B. Cook, Harold Cramer, Paul L. Jaffe and K. G. Bacheller, Appellants, v. CHALFONTE DEVELOPMENT CORPORATION, Appellee.
    No. 77-673.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1979.
    Rehearing Denied May 8, 1979.

      David B. Van Kleeck of Tylander, de-Claire & Van Kleeck, Chartered, Boca Ra-ton, for appellants.
    Davis W. Duke, Jr. of McCune, Hiassen, Crum, Ferris & Gardner, P. A., Fort Laud-erdale, for appellee.
   ANSTEAD, Judge.

This is an appeal from a final judgment denying the appellants a refund of their deposit moneys paid toward the purchase of condominium units from the appellee. We reverse.

The appellants sought recovery of the refunds under the authority of Section 711.-24(2), Florida Statutes (1970) which was in effect at the time the purchase agreements were executed:

All of the information required by subsection (1) which is available at the time shall be furnished to the prospective buyer prior to execution of the contract for sale. Thereafter, no changes or amendments may be made in any of the items furnished to the prospective buyer which would materially affect the rights of the buyer or the value of the unit without obtaining the approval of the buyer. If all of the information is not available at the time of execution of the contract for sale, then the contract shall provide that it shall be voidable at option of the buyer at any time up until fifteen days after the last item of required information is furnished to the prospective buyer, which latter act shall occur no later than ninety days prior to the closing of the sale. Failure on the part of the seller or his agent to make full disclosure as required herein shall entitle the buyer to rescind the contract for sale at any time prior to closing of the contract and to receive a refund of all deposit moneys paid with interest thereon at the highest rate then being paid on savings accounts, not inclusive of certificates of deposit, by savings and loan associations in the area in which the condominium property is located. (Emphasis supplied)

Subsection (1) of. 711.24 relates to the condominium documents setting out the various rights and liabilities of the parties in the condominium property.

At trial the appellants were able to establish that numerous changes and amendments had been made in the condominium documents after the documents had been furnished the appellants and without their approval. The changes, as paraphrased by appellants in an appendix to their briefs, include:

1. A portion of the land described in the original documents (those furnished Appellants) as included in the property to be declared condominium was by the recorded documents removed from the condominium and included in and as a-recreation lease area. The subject portion of the land is described as “that portion Section 29, Township 47 South, Range 43 East, lying West of and abutting upon the said above-described 197.92 feet in Section 28, and extending westward therefrom to the shores of Lake Boca Raton, less the right-of-way of State Road No. 140 (Ocean Boulevard), Palm Beach County, Florida, and lying East of the East right-of-way line of State Road A-I-A.”
2. The recorded Declaration added Paragraphs 2.7, 2.9, 2.10, 2.12 and 2.13, and Paragraph 3.4(b), none of which appeared in the original documents. As a result of these changes, the limited common element rights of owners were materially altered and redefined.
3. The original documents, in Paragraph 3.5(d), required that the Appellee construct certain tennis, marine and garden facilities on the 99-year ground lease area. This obligation was eliminated in the recorded documents. The ground lease does not identify in any way the improvements to be provided on the ground leased area.
4. The description of boundaries of individual condominium units, set forth in Paragraphs 3.7(a) and (b), and 5.1(a)(1), differ from those provided in the original documents. Particularly, the omission of the words “except interior surfaces” from Paragraph 5.1(a)(1) results in owners becoming individually obligated for maintenance responsibilities which would have been obligations of the Association under the original documents.
5. Paragraph 6.1 of the recorded documents exempts mortgagees from payment of certain common expenses. Those necessarily having to be paid by the remaining unit owners, this change from the original documents exposes unit owners to increased operating costs.
6. Paragraph 6.3, second to last sentence, of the recorded documents grants the Appellee-Developer the right to avoid payment of common expenses. This is an apparent effort to take advantage of Section 711.15(8) of the Florida Statutes, effective October 1, 1974, well after the contracts herein involved. Said Statute specifically applies only if the Declaration of Condominium so provides. The original documents did not so provide; in fact, they affirmatively obligated the developer to pay assessments on apartments it owned in the same manner as any other unit owner.
7. Paragraphs 6.3(a) and (b) of the recorded documents added new provisions increasing the exposure of owners’ units to liens. Such provisions are not in the original documents.
8. Paragraph 6.5 of the recorded documents provides for certain additional collection procedures not set forth in the original documents.
9. Paragraph 10.1(g) of the recorded documents adds a new restriction on use of the unit, limiting the unit owner in the decoration, enclosure or alteration of their units. No such provision appears in the original documents.
10. Paragraph 11.2(4), last sentence, and 11.8 of the recorded documents grant a waiver of resale and leasing approvals which was not set forth in the original documents, thus affecting the rights of unit owners with respect to maintenance of community interest, congeniality and responsibility among unit owners.
11. Paragraphs 11.4 and 11.5 of the recorded documents increases the types of entities permitted to hold mortgages on condominium property; particularly, the developer is added as a permitted mortgagee.
12. Paragraph 7.3 of the recorded documents requires the Association to enter into a management agreement appended thereto as Exhibit H. Nothing similar is required or contemplated in the original documents.
13. Proxy provisions set forth in Paragraph 2.6 of the recorded documents differ from those in the original documents.
14. The By-Laws, particularly Paragraph 2.9 thereof, concerning takeover by . the unit owners have been altered.
15. Paragraph 6.2 of the recorded documents, concerning budget and special limitations on assessments, was substantially altered from similar provisions in the original documents.
16. Maintenance charges as set forth in original budget were increased by the developer.

The appellee successfully contended in the trial court that none of these changes constituted the “real” reason that appellants refused to close and further none of the changes ultimately adversely affected the rights of the appellants. In essence the appellee contended at trial that the appellants had not shown they would have been harmed financially by the various changes made in the, condominium documents if they had gone ahead and purchased the units.

We think appellee’s contention misses the mark of the legislature’s intention in enacting Section 711.24(2). In Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971) this court held that the substitution of glass jalousies for wire screening in a condominium' apartment was a “material” change. Likewise, we find the changes here to be material within the meaning of the act. And further we conclude that it is not proper to determine whether the appellants’ rights were adversely affected by looking at events that occurred subsequent to the time appellants chose not to close. That is, much of the proof of the appellees consisted of showings that eventually most of the deficiencies were resolved so that if appellant had closed everything would have worked out all right. That is not what the statute contemplated when it provided for the right to rescind if substantial changes or amendments are made to the condominium documents. That determination must be made on the basis of the nature of the changes as they existed at the time appellants sought rescission.

We believe that the legislature intended to give condominium purchasers the right to rescind when any substantial changes- were made in the condominium documents affecting the purchasers’ rights. We conclude that most, if not all, the changes established by appellants materially affected their rights, ranging from their right to decorate the units to their own taste, to their ownership interest in some of the condominium property. See Items 1 and 9, supra. We do not believe the prospective purchasers were required to show an ultimate adverse financial impact by the changes. Indeed the statute itself provides as an alternate ground for relief changes that would materially affect “the value of the unit.”

Accordingly, the judgment of the trial court is reversed with directions that judgment be entered in favor of the appellants in accordance with the terms of this opinion.

DAUKSCH, J., concurs.

DOWNEY, C. J., concurs specially, with opinion.

DOWNEY, Chief Judge,

concurring specially:

A number of the changes about which appellants complain are in my opinion simply make-weight. Having decided they did not wish to go through with their contract to purchase, they searched for changes with which to charge the developer. The trial judge was understandably unimpressed with many of appellants’ complaints which have been delineated seriatim for effect in appellants’ appendix and reproduced in the majority opinion. However, after culling a majority of the complaints, those which unquestionably do not “materially affect the rights of the buyer,” I am compelled to agree there are several remaining which do have a material effect upon the purchasers’ rights. In reviewing this record and affording the trial judge’s findings all of the presumptions thereunto appertaining, it seems to me one cannot but conclude that items numbered 3, 5, 6, 7 and 8 potentially have a material effect upon the rights of the various unit owners. Whether they ultimately did materially affect them is not relevant. When appellants sought to rescind, their judgment was made based upon the facts as they existed at that point in time.

Item No. 1 is partially answered by appel-lee. It points out that, although there was a discrepancy between the land described for condominium purposes in the documents furnished appellants and the Declaration of Condominium as ultimately recorded, the lease was furnished appellants with their original documents and the land described in the lease for the recreational area contained a proper description of that one area (including the land missing from the Condominium Declaration). So, at best, the ap-pellee’s documents were conflicting; the conflict redounds to the benefit of the developer, which materially affects the buyers’ rights and provides an additional foundation for rescission.

Therefore, while not all of the alleged changes materially affected the rights of the buyers, the ones above mentioned did.

For these reasons I concur in the decision to reverse the judgment appealed from.

      . The item numbers refer to the numbers used in the majority opinion.


author: ANSTEAD, Judge.

text:
    Eddie HOLMES and Versie Holmes, Petitioners, v. BLAZER FINANCIAL SERVICES, INC. and Royal Trust Bank of Palm Beach, N.A. f/k/a Worth Avenue Bank, Respondents.
    No. 78-912.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1979.
    Rehearing Denied May 14, 1979.

      Malcolm Anderson of Law Offices of Malcolm Anderson, North Palm Beach, for petitioners.
    John B. Powell, IV, of Ombres, Powell, Tennyson & St. John, West Palm Beach, for respondent Blazer.
    Larry R. Morgan of Greater Orlando Area Legal Services, Inc., Orlando, as ami-cus curiae.
   ANSTEAD, Judge.

By this petition for writ of certiorari the petitioners seek our interpretation of Section 222.11, Florida Statutes (1975) which exempts from garnishment wages due the head of a household.

The petitioners’ bank accounts were garnished. In response, petitioners claim that the funds in the accounts were their wages and hence protected from garnishment under Section 222.11, which provides that

No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this state, when the money or other thing is due for the personal labor or services of such person.

The county court ruled that the bank account was exempt and in doing so acknowledged the existence of a case holding directly to the contrary: Hertz v. Fisher, 339 So.2d 1148 (Fla. 1st DCA 1976). The circuit court, in its appellate capacity, properly reversed the county court pursuant to State v. Hayes, 333 So.2d 51 (Fla. 4th DCA 1976) which stands for the proposition that a trial court in the Fourth Appellate District is bound by the decisions of other Florida District Courts of Appeal when there is no 'case on point from the Fourth District.

There are no Florida cases which have construed the statute in the manner advocated by petitioners. Rather, petitioners rely on a number of foreign decisions and on certain language as to legislative intent contained in several Florida decisions.

In Wolf v. Commander, 137 Fla. 313, 188 So. 83 (1939) Justice Chapman writing for an evenly divided Supreme Court noted:

[T]he purpose of the statute is to protect citizens against financial reverses and difficulties and to permit the citizen when residing in Florida and head of a family to be secure in money coming to him for his labor and services thereby supporting his family and preventing it from becoming a public charge. (Id. at 84)

In Wolf the Court rejected an argument that the statute be limited in application to “wages due laboring men.” The Court noted:

It is suggested that an affirmance by this Court of the judgment appealed from will protect annual salaries of citizens of Florida ranging from $50,000 to $80,000. While this conclusion may be justified, the responsibility therefor does not rest on this Court but with the legislative department of our government. We are without power to enact law or to pass upon its wisdom or folly, but our duty is to construe or interpret it according to established rules and decisions. (Id. at 85)

Similarly, the conflict that is posed by petitioners is between the specific language of the statute and the alleged underlying legislative intent in enacting the law. In this case we believe that the clear language must prevail over the petitioners’ attempts to perceive the legislature’s intent. We agree with the First District’s construction in the Hertz case:

Although from his affidavit it appears that he is the head of a family residing in this state and that the money in his bank account is money which was paid to him for personal services, such money is no longer due to him for personal services because it has been paid by those for whom he performed the personal services. It is not now due for personal services but is payable to him by the bank to his credit in his bank account. (Id. at 1149)

It would appear that the legislature intended that there be no interference with the receipt by the head of a family of money due him for personal -labor or services. Hence, the use of the phrase “to attach or delay” (emphasis supplied). However, the legislature made no provision to protect the money once it was received. We are bound to give effect to the clear words the legislature chose to use. Heredia v. Allstate Insurance Co., 358 So.2d 1353 (Fla.1978). Our examination of those words reveals no ambiguity. The ambiguity, if any, is only present in the attempts to identify the legislature’s specific purpose in enacting the law.

The foreign decisions relied upon by petitioners are exemplified by the case of Rutter v. Shumway, where the Colorado Supreme Court held:

It is claimed by counsel for plaintiff in error that the proper construction of the act of 1885, above cited, is that the wages of the debtor are exempt from garnishment while they remain in the hands of the employer before payment, but not afterwards. The statute contains no such limitation or condition. The act declares: “There shall be exempt from levy under execution or attachment or garnishment the wages and earnings of any debtor to an amount not exceeding one hundred dollars, earned during the thirty days next preceding such levy,” etc. It is not declared that such wages shall not be levied upon in the hands of the employer, or that they shall not be attached or garnished before payment. The language is unconditional and absolute that such wages “shall be exempt from levy under execution or attachment or garnishment;” and the courts cannot justly add words which would tend to defeat or restrict the manifest purpose of the statute. So long as the wages or earnings of the debtor are capable of identification he is entitled to have them exempt, according to the terms and provisions of the statute. (26 P. 321, 322)

Quite simply, the Florida and Colorado statutes are entirely different; and the difference is critical. Colorado protects a limited amount of wages, $100, earned within a thirty day period, regardless of whether the wages have been received or not. Section 222.11 protects an unlimited amount, as long as it is payable for personal labor or services, but only affords protection to amounts due to be paid.

The petitioners contend that the protection of the statute is meaningless unless it extends to wages received. We believe that argument is more appropriately directed to the legislature. It may be that the legislature, at the time this law was first enacted in 1875, felt wage earners were being adequately protected by the terms of the legislation since banking and credit were not as extensive as they are today. Then, many wage earners received their pay in cash, bought their necessities with cash, and paid their bills in cash. In many cases their wages were quickly expended so that attachment of cash in the hands of a wage earner was virtually impossible.

Today, with direct bank depositing of wages and our extensive credit system, many wage earners never see their earnings other than as paper transactions through a bank .account. Hence, if it was the legislature’s intent by Section 222.11 to completely protect the wages of the head of the family from garnishment, the existing statute does not do the job. If the wages can be seized after they have been received and placed in a bank account then the head of a family subject to garnishment is certainly not secure “in money coming to him for his labor and services thereby supporting his family and preventing it from becoming a public charge.” Wolf v. Commander, supra at 84. However, just as the legislature had the option of restricting the exemption to “wages due laboring men”, so did it have the option to extend the exemption to wages once received. It is the prerogative of the legislature to extend or restrict such exemptions. This court cannot extend the effect of the statute beyond the unambiguous language chosen by the legislature. The petition for writ of certiorari is denied.

CROSS and MOORE, JJ., concur.

      . General Motors Acceptance Corp. v. Falcone, 130 N.J.Super. 517, 327 A.2d 699 (1974); Staton v. Vernon, 209 Iowa 1123, 229 N.W. 763 (1930); Rutter v. Shumway, 16 Colo. 95, 26 P. 321 (1891).

      . Six justices participated in the decision and the trial court’s decision was affirmed by the tie vote of the justices on the principle that it took a majority to reverse.

      . Supra, note 1.


text:
    Otis Jerome LEE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. DD-354.
    District Court of Appeal of Florida, First District.
    April 4, 1979.
    Rehearing Denied May 15, 1979.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.'
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The court has reviewed the transcript in the light of Judge Agner’s order dated July 20, 1978, which finds that the transcript “is a substantially accurate and true representation of the proceedings,” although “the transcript may be incomplete and inaccurate in certain areas, which the Court considers minor.” The transcript is not so inadequate as to make meaningful review impossible. No substantive errors are urged as requiring reversal. No reversible error appears from a review of the record. The judgment is AFFIRMED.

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


text:
    Armando B. MARTINEZ and Esther B. Martinez, his wife, Appellants, v. John GIORDANO and Nancy Giordano, his wife, Appellees.
    No. 78-1337.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Rehearing Denied May 9, 1979.

      Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellants.
    Grable & Dieguez and Anthony Dieguez, Hialeah, for appellees.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

We are presented with an appeal and a cross-appeal from a final judgment in which the trial judge found the existence of an easement for a way of necessity upon the property of the appellants, Armando B. Martinez and Esther B. Martinez, his wife. The fundamental question presented is whether the evidence was sufficient to establish a way of necessity under the law of the State of Florida. See Reyes v. Perez, 284 So.2d 493 (Fla. 4th DCA 1973); and Section 704.01, Florida Statutes (1973). In addition, both parties urge that the trial court erred in failing to grant to them damages.

The record reveals that this litigation over a right of access to the Martinez property has been in progress since 1974. The parties have, on occasion, resorted to self-help by the erection of barricades and the cutting of fences. The judgment in the present suit was entered after a non-jury trial, in which the court held that the Gior-danos had “an implied grant of way of necessity” over the Martinez property and that the Martinezes were permanently enjoined from blocking this right-of-way. It further held that neither party was entitled to damages.

Our review of the record reveals that the evidence fully substantiates the Giordanos’ claim and that appellant Martinezes’ point directed to the existence of a way of necessity does not present reversible error. In addition, we hold that appellants’ points claiming an error in the ruling on the evidence and in the allowing of a deposition to be introduced into evidence are without error.

In their cross-appeal, the appellee Giordanos urge that the court erred in not allowing damages to them for the wrongful withholding over a period of time of the right of access. It appears to us that the court correctly determined that neither party is entitled to damages inasmuch as this litigation was begun in 1974 and should, by prompt attention thereto, have been terminated long before the present judgment.

We, therefore, hold that neither party has shown error upon a denial of its prayer for damages. Cf. the principle of law in McMichael v. McMichael, 158 Fla. 413, 28 So.2d 692 (1947); Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105, 107 (1944).

Accordingly, the final judgment is affirmed upon the appeal and the cross-appeal.


text:
    KELLY TRACTOR COMPANY, Appellant, v. Donald GURGIOLO, Appellee.
    No. 78-1354.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Rehearing Denied May 9, 1979.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Timothy J. Norris, Miami, for appellant.
    Corlett, Merritt, Killian & Sikes, Miami and Gerald E. Rosen, North Miami Beach, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

The final judgment appealed from is reversed and the cause remanded to the trial court with directions to dismiss the plaintiff Donald Gurgiolo’s complaint against the defendant Kelly Tractor Company on the ground that the cause of action sued upon was barred by the applicable four year statute of limitations under Section 672.2-725(1), (2), Florida Statutes (1967).

The plaintiff brought suit against the defendant in this cause, and thereafter obtained a final judgment entered upon a jury verdict, for breach of express warranty involving future performance of two engines purchased by the plaintiff from the defendant for a certain charter boat. Significant mechanical difficulties were experienced by the plaintiff upon delivery of the above engines in October 1968. Such difficulties extended continuously over a period in excess of llh years until the plaintiff finally filed suit on June 30, 1976.

In our view, the cause of action sued upon accrued long before June 30, 1972, which thereby places the action outside the four year statute of limitations. Indeed, by June 1972, the plaintiff had experienced over 3V2 years of chronic mechanical breakdown involving these two boat engines and by that time had discovered, or should have discovered, that the defendant had breached its express warranties with reference to the future performance of the above engines. As such, the action herein was clearly barred by the four year statute of limitations. § 672.2-725(1), (2), Fla.Stat. (1967); Creviston v. General Motors Corp., 225 So.2d 331 (Fla.1969); City of Miami v. Brooks, 70 So.2d 306 (Fla.1954).

Reversed.


author: PER CURIAM. ERVIN, Judge,

text:
    Brandon H. LEAVITT, Appellant, v. STATE of Florida, Appellee.
    No. LL-25.
    District Court of Appeal of Florida, First District.
    April 17, 1979.
    Rehearing .Denied May 15, 1979.
    Selig I. Goldin, of Goldin & Cates, Gaines-ville, for appellant.
    Jim Smith, Atty. Gen., and Lee Mandell, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from the Circuit Court in and for Alachua County. The appellant appeals a final order withholding adjudication of guilt and placing him on probation with a special condition of one year in jail and payment of $2,500 costs on a cocaine possession count based upon a jury verdict finding him guilty of possession of cocaine under Count Two of one information, and guilty of possession of more than five grams of cannabis under a second information. The two cases had been consolidated and were tried together.

Prior to trial motions to suppress were filed by appellant in each case and were denied. A motion for judgment of acquittal under Count Two of the second information which charged unlawful possession of drug paraphernalia was granted by the court.

At the trial the following facts developed: In 1977 the appellant attempted to board an airplane in the Gainesville airport. Before being allowed to board, appellant was required to submit himself and his carry-on baggage through a predeparture sereener. The agent handling the machine could not identify an object in his carry-on bag so she asked appellant for permission to examine his bag in his presence. The agent testified that defendant consented and pushed his bag toward her and then both proceeded to search going toward the unidentified object. However defendant testified he did not consent to the search. Elsa Powers, a prescreening inspector testified on deposition that defendant did not want to be checked. Upon the agent grasping a toilet kit, the appellant grabbed his bag and proceeded to leave the area. The agent was left holding the toilet kit, which had come open in the process. She then handed the kit to Officer Sanders of the Gainesville Police Department who looked inside and saw five or six bags of marijuana. Under these bags he also saw a white powder and he began chasing appellant. Sanders yelled at appellant to stop, that he was under arrest, but appellant continued to flee, whereupon Sanders shot appellant in the foot. Appellant was arrested and taken to the hospital. The total weight of the cannabis taken from appellant was 47.2 grams gross weight which included seeds, stems and certain sticks.

An amended information was filed charging in Court One possession of cocaine with intent to sell or deliver and charging in Count Two simple possession of cocaine. In a separate case, an information was filed charging appellant with possession of more than five grams of cannabis and with possession of drug paraphernalia.

At trial, a state chemist testified that the substance was cannabis and that it weighed 47.2 grams. He also testified that based upon his tests, the white powder was illegal cocaine. Dr. Robert Shapiro, an expert in the .field of analysis of organic compounds, testified for appellant that there are eight isomers of cocaine and that it would not be possible to distinguish between the isomers based upon the tests that the state chemist used, and that in order to prove that the cocaine involved in a criminal case is the cocaine made illegal by statute, additional tests must be performed. Thus a conflict was presented to the jury on the issue of the character of the substance in question. The jury having resolved such conflict in favor of the State and against the appellant, it is not the province of this court to act as a second jury on this issue. We therefore find point three to be without merit for the evidence demonstrated that the illegal cocaine was a controlled substance within the definition of that term as proscribed by section 893.03(2)(a)4.

Appellant contends that the trial court erred in denying motions to suppress the evidence which revealed both the cocaine and cannabis, alleging that the search was unreasonable. We hold that the denial of such motions was not error. In so holding we determine that the airport screening employees conducted a proper search pursuant to appellant’s consent and that the evidence affirms that the search was reasonable under the circumstances. United States v. Cyzewski, 484 F.2d 509 (5th Cir. 1973). Therefore the judgment of conviction of unlawful possession of cocaine under Count Two of the information is affirmed.

We reverse the order of probation with reference to the cannabis count of the information for the reason that it was not proven beyond and to the exclusion of every reasonable doubt that the appellant was guilty of the possession of more than five grams of cannabis, and we remand such order to the trial court with direction to reduce the probation sentence commensurate with a misdemeanor charge of possession of less than five grams of cannabis. See Purifoy v. State, 359 So.2d 446 (Fla.1978).

Affirmed in part and reversed in part and remanded to the trial court for the purpose hereinbefore indicated.

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

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

ERVIN, Judge,

concurring in part and dissenting in part.

I concur in all portions of the majority’s opinion with the exception of that holding it was not proven beyond a reasonable doubt that appellant was guilty of possession of more than five grams of cannabis. I feel the facts here, as in Dorsey v. State, 367 So.2d 692 (Fla. 1st DCA 1979), are sufficiently distinguishable from those which existed in Purifoy v. State, 359 So.2d 446 (Fla.1978). I would affirm the order of probation in its entirety.


author: BARKDULL, Judge.

text:
    KENILWORTH INSURANCE COMPANY, Appellant, v. Tania PIZARRO, Appellee.
    No. 78-1401.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.
    Vernis & Bowling and Frank C. Vernis, Jr., Coconut Grove, for appellant.
    Adolfo Del Castillo, Coral Gables, for ap-pellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   BARKDULL, Judge.

Kenilworth Insurance Company, defendant in the trial court, takes this appeal from an order denying its post-trial motion to limit judgment to the amount of the policy coverage.

Tania Pizarro sued Jose Genova and his insurer (Kenilworth) for damages resulting from an automobile accident. Kenilworth claimed, during the discovery period, the policy limits ($20,000/$10,000/$5,000) were repeatedly made a matter of record and acknowledged by Pizarro. Kenilworth does admit that it received a letter from Pizarro’s counsel, wherein the attorney expressed the opinion that Section 324.021(7), Florida Statutes (1973) was applicable, thus making the policy limits $15,000/$30,000. Kenil-worth claimed that the statute was not applicable; that the issue .was never raised again. On the other hand, Pizarro points out that she made a demand of $45,000.00 against Kenilworth and Dade County (co-defendant in the trial court); that this demand resulted in nothing other than an offer of a judgment of $3,000.00. Pizarro acknowledges the fact that Kenilworth, by answers to interrogatories, claimed limits of $10,000/$20,000 but shows the court that after receipt of this information Pizarro claimed the applicability of Section 627.-733(3)(a), Florida Statutes (1973), and demanded $15,000.00 in settlement from Ken-ilworth. Pizarro also notes that the accident in question occurred in January of 1975, well before the statutory limits were reduced to flO.OOO.OO.

The case went to trial and Pizarro received a verdict and judgment of $25,000.00 against Kenilworth and its insured. Kenil-worth filed a motion for new trial, which did not mention the problem of policy limits. Final judgment was entered on January 5, 1978; eight days later Kenilworth filed a motion to limit judgment, which was denied on June 26th and Kenilworth filed a notice of appeal from same on July 13th. The appellee notes that the notice of appeal does not refer to the final judgment, just the order on the motion.

The motion to amend was timely filed. See: Florida Rule of Civil Procedure 1.530(g). Therefore, being a timely filed motion, the final judgment was not rendered under Florida Appellate Rules until it was disposed of. See: Florida Appellate Rule 9.020(g).

Counsel for the appellee says that this case is controlled by the opinion in Williams v. Banning, 259 So.2d 725 (Fla.2d DCA 1972). We agree. Not only does the instant case present a question of coverage, there is also an allegation of bad faith negotiations on the part of the appellant in attempting to settle the appellee’s claim. Inasmuch as appellee is entitled to bring an action directly against the tortfeasor’s liability insurer for recovery in excess of the policy limits, based on a claim of bad faith [Thompson v. Commercial Union Insurance Company of New York, 250 So.2d 259 (Fla. 1971); Boston Old Colony Insurance Company v. Gutierrez, 360 So.2d 464 (Fla.3d DCA 1978)], something more than a mere allegation in a motion to limit judgment is necessary to afford either the appellant’s insured or the appellee their day in court.

The order under review is therefore affirmed, without prejudice to the parties proceeding in the trial court in the manner set forth in Williams v. Banning, supra.

Affirmed.

      . It was a $10,000.00 policy, but there was some dispute that the actual amount should have been $15,000.00 because of the provisions of § 324.021(7), Florida Statutes (1973), which was in effect between the dates of 1973 and October 1, 1976, the accident in question having occurred on January 5, 1975 which falls within the effective date of this statute.