author: ALDERMAN, Judge. DOWNEY, Judge

text:
    Charles Albert MULLINS, Appellant, v. Patricia J. MULLINS, Appellee.
    No. 76-1267.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1976.
    Rehearing Denied Jan. 7, 1977.
    Harold M. Braxton, Miami, for appellant.
    No appearance for appellee.
   ALDERMAN, Judge.

This is an interlocutory appeal from an order requiring the husband in a dissolution of marriage suit to pay the costs of preparing a transcript needed for the wife’s appeal. The trial court, by its order which is the subject of this appeal, required the husband to deposit $1,300 with the court reporter or make other arrangements to secure the preparation of the transcript.

FIa.App. Rule 3.16(a) provides:
“Cost of Record-On-Appeal. Reasonable costs for preparing the record-on-appeal by the clerk of the lower court may be taxed in the lower court after the filing of the mandate.” (emphasis supplied)

Also Fla.App. Rule 3.8, which spells out the power of the lower court after entry of any appeal, in paragraph (b) allows the lower court in its discretion, upon proper notice and hearing, to order the payment of separate maintenance, support or alimony pending appeal. However there is no provision in the Florida Appellate Rules for the lower court to tax the costs of an appeal prior to the filing of the mandate. The language of Fla.App. Rule 3.16(a) is quite clear: Appellate costs may be taxed in the lower court only after the filing of the appellate court’s mandate. Robinson v. Crocker, 138 Fla. 727, 190 So. 5 (1939); Burns v. Burns, 153 Fla. 73, 13 So.2d 599 (1943); Belcher v. Belcher, 307 So.2d 918 (Fla. 3d DCA 1975). The trial court’s order requiring husband to secure the preparation of the transcript for the wife’s appeal is reversed.

Husband raises a second point, contending that the trial court erred in denying his motion below to force his wife to pay half of the property taxes due on the real property owned by them as tenants in common. The record is inadequate to permit any conclusion on this point. We have before us only the assertions in husband’s brief. We must affirm. Steinhauer v. Steinhauer, 336 So.2d 665 (Fla. 4th DCA 1976); Hall v. Bass, 309 So.2d 250 (Fla. 4th DCA 1975); Pierson v. Sharp, 283 So.2d 880 (Fla. 4th DCA 1973).

REVERSED in part, AFFIRMED in part, and REMANDED.

CROSS and DOWNEY, JJ., concur.

ON PETITION FOR REHEARING

Appellee-wife contends that she does not seek to tax the costs of this appeal prior to the filing of the mandate. Instead, she contends that she is only seeking to obtain from her former husband the money required for preparation of the record on appeal. In other words she wants suit money so she can prosecute her appeal.

As pointed out in our original opinion, the powers of the lower court after entry of an appeal are set out in Fla.App. Rule 3.8. Paragraph (b) of this Rule allows the lower court in its discretion, upon proper notice and hearing, to order the payment of separate maintenance, support or alimony pending appeal. Just as there is no provision for the lower court to tax costs of an appeal prior to the filing of the mandate, neither is there authorization for the trial court to order one spouse to pay suit money to the other pending appeal.

Whether the trial court’s order requiring the husband to deposit $1,300.00 with the court reporter or to make other arrangements to secure the preparation of the transcript was a taxing of the costs of the appeal prior to filing of the mandate or was an award of suit money to the wife pending appeal — in either event it is not authorized under any provision of the Florida Appellate Rules. If the Rule ought to be otherwise it is within the province of the Supreme Court to amend the Rule.

Petition for rehearing DENIED.

CROSS, J., concurs.

DOWNEY, J., dissents, with opinion.

DOWNEY, Judge

(dissenting):

We previously published an opinion in this case reversing an order of the trial court directing the appellant husband to advance the sum of $1300 for the court reporter so that the wife could obtain a transcript of the trial testimony in support of her appeal from the final judgment of dissolution. We held that the order amounted to the taxation of costs against the husband prior to the filing of a mandate by the appellate court.

The matter is now before us on the wife’s petition for rehearing (she did not favor us with an appellee’s brief).

In my opinion, the court should vacate its prior opinion because the issue involved is not the taxation of costs but rather the allowance of suit money pending an appeal in a domestic relations case. Since the trial judge granted the wife’s application for the allowance in question we can presume he found a need and the ability to pay. Therefore, the wife would appear to be entitled to suit money to prosecute the appeal.

The only vexing question involved is which court has the authority to allow suit money pending appeal. We know that the appellate court has the authority to allow alimony, support, attorney’s fees and suit money pending appeal. Phifer v. Phifer, 124 Fla. 223, 168 So. 9; Braznell v. Brazneii, 134 Fla. 228, 183 So. 720. In order to shift the burden of determining such an allowance to the trial court (because its facilities make it better able to make such determination) Fla.App. Rule 3.8(b) was adopted. The rule is remedial and should be liberally construed to effectuate its purpose. Brac-kin v. Brackin, 182 So.2d 1 (Fla.1966).

It would seem anomalous to enact an appellate rule to authorize the trial court to determine maintenance, support and alimony pending appeal and yet reserve unto the appellate court the exclusive authority to determine attorney’s fees and suit money pending appeal. These needs go hand in hand. The appellant who cannot support herself pending appeal can rarely afford to hire a lawyer to prosecute the appeal or advance the money to pay for the preparation of an expensive record. Accordingly, I would construe Fla.App. Rule 3.8(b) as broad enough to include the allowance of the suit money involved in this case.

Since the majority is unable to afford said rule such a liberal interpretation the appellee wife will simply have to resort to a motion in this court for such an allowance. In that event this court might well relinquish jurisdiction to the trial court to make that determination. It would seem to me that such time consuming and circuitous procedure should be avoided.

For the foregoing reasons I would withdraw our opinion of November 19,1976, and affirm the order of the trial court awarding appellee suit money of $1300.


source: Caselaw Access Project

author: BOYER, Chief Judge. McCORD, Judge

license: Public Domain

text:
    Juanita K. MILLER, Appellant, v. Regnel V. MILLER, Appellee.
    No. BB-395.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1976.
    Rehearing Denied March 2, 1977.
    Joseph Q. Tarbuck, Pensacola, for appellant.
    Fletcher Fleming of Shell, Fleming, Davis & Menge, Pensacola, for appellee.
   BOYER, Chief Judge.

Appellant seeks review of that portion of a final judgment in a dissolution of marriage action which awarded custody of the two minor children of the parties to appel-lee. Our examination of the record reveals evidence upon which the trial judge could have awarded custody to either parent or to neither. Although we may well have arrived at a different conclusion, it is not our prerogative to substitute our opinion for that of the trial judge if there is competent evidence in the record to sustain his determination. (Please see Dinkel v. Dinkel, Sup.Ct.Fla.1975, 322 So.2d 22 and Spradley v. Spradley, Sup.Ct.Fla.1976, 335 So.2d 822)

Appellant’s petition for award of attorney’s fees incident to this appeal is denied.

AFFIRMED.

MILLS, J., concurs.

McCORD, J., dissents.

McCORD, Judge

(dissenting).

In my view this case is not controlled by the two Supreme Court opinions cited in the majority opinion. Here the evidence is clear that it was not in the minor children’s best interest that they be placed in the custody of appellee. I therefore, dissent.


author: GRIMES, Judge.

text:
    Frank A. WEANER and Helen S. Weaner, Appellants. v. BULLARD & WALLING, INC., et al., Appellees.
    No. 76-1258.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 1977.

      David A. Maney, of Gordon & Maney, P. A., Tampa, for appellants.
    W. Crosby Few, Tampa, for appellees Donald A. Regar and Elaine E. Regar.
    Charles W. Pittman, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee J. P. Griffin, Inc.
   GRIMES, Judge.

Bullard & Walling, Inc. (contractor) sued appellees, Mr. and Mrs. Donald A. Regar (Regars) and appellants, Mr. and Mrs. Frank Weaner (Weaners) for breach of contract and for foreclosure of a mechanic’s lien. Subsequent to the filing of the complaint, the contractor dismissed so much of the action as pertained to the Regars. After the Regars were dropped as parties defendant, the Weaners filed a third party complaint against the Regars. After an order was entered dismissing the third party complaint with leave to amend, the Weaners filed an amended third party complaint against the Regars. The Regars moved to dismiss the amended third party complaint and the motion was granted. The Weaners have appealed the order dismissing their amended third party complaint.

According to the pleadings, on November 19, 1974, the Regars, the Weaners and the contractor entered into a three-party agreement for sale to the Weaners of a residence then being constructed by the contractor for the Regars. The agreement called for the immediate payment of $150,000 to the Regars and the contractor and for the balance of $125,000 to be subsequently paid to the contractor. The contract stated that the house was to be sold in an “as is” condition and that the Regars would have no further responsibility to the Weaners upon the delivery of a warranty deed. The contractor agreed to finish the house according to the Weaners’ specifications.

In the amended complaint, the contractor alleges that it has fully performed all of the work required under the contract. The contractor asserts that the Weaners still owe it $115,000 under the contract plus extras in the sum of $16,149.37. The theory of the third party complaint is that as a result of the contractor’s suit, the Weaners are subjected to the possibility that the court will declare that a mechanic’s lien exists for monies due stemming from labor and services rendered by the contractor prior to the date that the Regars conveyed the property to the Weaners. Thus, the Weaners contend that the Regars may be liable to them for breach of the covenant against encumbrances in the warranty deed.

The premise upon which the amended third party complaint was dismissed was that since the contractor’s claim of lien was not filed until after the date of delivery of the warranty deed, there could have been no breach of the covenant against encumbrances. The court rejected the contention that an encumbrance could have existed at the time the deed was delivered because of the relating back of the lien to the time of the recording of the notice of commencement under Section 713.07, Florida Statutes (1975). We find it unnecessary to pass on this interesting question because we believe that the amended third party complaint was subject to dismissal because of a more basic reason.

According to the allegations of the amended complaint, the money still due and owing by the Weaners is for labor, services and materials furnished by the contractor to the Weaners. Therefore, even if the contractor successfully prosecutes its claim, the Weaners would have no cause of action over against the Regars since a lien, if established, would have been predicated on labor, services and materials furnished subsequent to conveyance and would not have come about through the fault of the Re-gars. Moreover, even if it could be shown that part of the balance owing under the contract covered labor, services and materials furnished to the Regars and not paid for prior to the sale, the Weaners could not be heard to complain because this was a matter which was washed out by the contract. Under the present state of the pleadings, the Weaners have received exactly what they bargained for, to wit: a completed house, and Bullard & Walling is only making claim for the balance owed under the contract plus payment for the extras allegedly requested by the Weaners.

The order dismissing the amended third party complaint is

AFFIRMED.

McNULTY, C. J., and SCHEB, J., concur.


author: McCORD, Judge.

text:
    Don TULLIS, Appellant, v. Shirley D. TULLIS, Appellee.
    No. BB-236.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1977.
    As Corrected On Denial of Rehearing March 3, 1977.
    David R. Lewis, of Blalock, Holbrook, Lewis, Paul & Issac, Jacksonville, for appellant.
    Barry L. Zisser, of Zisser & Robison, Jacksonville, for áppellee.
   McCORD, Judge.

This is an appeal from a final judgment of partition of real property. The pertinent facts are as follows:

During the marriage between appellant, Don Tullís, and appellee, Shirley Tullis, they owned the home in which they lived as an estate by the entireties. Prior to dissolution of the marriage, Shirley moved from the home, and Don’s minor daughter by a previous marriage continued living in the home with him. The final judgment of dissolution made no disposition of the respective interests of the parties in the home and did not award possession to either. Don continued to live in the home with his daughter and Shirley brought this suit for partition of the property now owned by the parties as tenants in common. Both parties agree that the property is not divisible and Don contended in the trial court that Art. X, § 4, of the Florida Constitution (the homestead exemption provision) prohibits forced sale of the property to satisfy their respective 50% interests because he occupies the property with his daughter as head of a household.

Art. X, § 4(a) of the Florida Constitution provides in pertinent part as follows:

“There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by the head of a family: (1) a homestead, . . . ”

The trial court in the final judgment of partition ruled that the defendant’s claim of homestead was not applicable to this situation and ordered sale of the property. Appeal is taken therefrom.

The sole question is whether or not the foregoing constitutional prohibition against forced sale of a homestead under court process prohibits a court-ordered sale in a partition suit of indivisible property which is occupied as a homestead by one of two co-tenants. While it is not necessary that the entire estate in property be vested in one occupying land as a homestead before it may be impressed as homestead in character, the homestead exemption applies only to the beneficial interest owned by the head of a family. Morgan v. Bailey, 90 Fla. 47, 105 So. 143 (1925). Homestead exemption extends to any right or interest the head of a family may hold in land. Bessemer Properties, Inc. v. Gamble, 158 Fla. 38, 27 So.2d 832 (1946). Thus, Don is entitled to homestead exemption upon his 50% interest in the subject property, but he has no exemption in relation to Shirley’s 50% interest. Inasmuch as their respective interests are not separable other than by sale in the partition suit, must Shirley submit to Don’s possession and use of the entire property (neither having been awarded the right to possession over the other by the final judgment of dissolution of their marriage) and give up her equal right to the property until such time as it ceases to be occupied by Don as a homestead? We think not. The constitutional homestead exemption was never intended to operate in such manner. As to forced sale by process of court, it is obvious that the exemption was only intended to protect the head of a household from forced sale to satisfy his debts and was not intended to deny to a co-owner of the property his interest therein. In Donly v. Metropolitan Realty & Investment Co., 71 Fla. 644, 72 So. 178 (1916), the Supreme Court said:

“The provisions that the homestead property ‘shall be exempt from forced sale under process of any court’ was not intended to prevent a partition of the homestead property among the beneficiaries thereof, even if a judicial sale be necessary to effect partition.
Section 2, above quoted, provides that the exemptions named in the section one ‘shall apply to all debts except,’ thus showing the exemptions have reference to the debts of the owner of the homestead property upon which the exemptions are impressed.
Considering the terms and purpose of the homestead provisions of the Constitution, it is manifest that a judicial sale, if necessary for purposes of partition among the beneficiaries of a homestead, is not included in the exemption from forced sale under process of any court. There is nothing in the Constitution indicating a purpose that homestead property may not be partitioned even by judicial process if that be necessary to a complete enjoyment of the property by those upon whom it is cast by the statutes of the state upon the death of the owner of the homestead. The exemptions ‘inure to the widow and heirs,’ and not to the widow and minor children. See Miller v. Finegan, 26 Fla. 29, 7 So. 140, 6 L.R.A. 813; Godwin v. King, 31 Fla. 525, 13 So. 108. The purpose of the law is to exempt the homestead property from forced sale for the debts of the owner who is entitled to the exemptions, . . . ” (Emphasis supplied.)

Donly dealt with Art. X of the Constitution of 1885 rather than the present Constitution. § 2 of Art. X of the Constitution of 1885 referred to in the above quote stated as follows:

“The exemptions provided for in section one shall inure to the widow and heirs of the party entitled to such exemption, and shall apply to all debts, except as specified in said section.”

The wording of the present Constitution which corresponds to § 2 of the Constitution of 1885, is contained in subsection (b) of § 4 of Art. X and states as follows:

“These exemptions shall inure to the surviving spouse or heirs of the owner.”

While the words “and shall apply to all debts, except as specified in said section” have been omitted, we do not conclude therefrom that there was an intent to include within the phrase “exempt from forced sale under process of any court” a meaning that such exemption applies to a partition suit sale made for the purpose of allotting to a co-owner his interest in the property.

We have considered the opinion of the District Court of Appeal, Third District, in Hoskin v. Hoskin, 329 So.2d 19 (3 DCA 1976). While the circumstances of that case were similar to a large degree with those of the case sub judice, there is a material factual distinction between the two cases. As we construe Hoskin, the court ruled that partition would not lie upon the suit of the former spouse (co-tenant) to defeat the court’s award of exclusive possession of the home to the other spouse (co-tenant). Such ruling is compatible with Coggan v. Coggan, 230 So.2d 34 (2 DCA 1969). Also compare Condrey v. Condrey, 92 So.2d 423 (Fla.1969). In the case sub judice, however, there was no award of exclusive possession to either party.

Although the court in Hoskin discussed the constitutional homestead exemption, we do not consider that its ruling was based upon such exemption. To any extent that it may have been grounded upon the exemption, however, we respectfully disagree with the applicability of the exemption.

AFFIRMED.

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


author: SMITH, Judge.

text:
    Robert A. LARAMORE, Appellant, v. STATE of Florida, Appellee.
    No. CC-14.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1977.
    Rehearing Denied March 2, 1977.

      William W. Corry, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appellant urges the trial court erroneously denied his motion to suppress. A search warrant was issued by a county court judge on Saturday night and was executed by service on appellant and by search and seizure begun shortly after midnight on Sunday morning. The warrant authorized execution on Sunday. The underlying affidavit did not, however, recite a reason purporting to justify execution of the warrant on Sunday. Section 48.20, Florida Statutes (1975) provides:

“Service or execution on Sunday of any writ, process, warrant, order or judgment is void . . . . If affidavit is made by the person requesting service or execution that he has good reason to believe that any person liable to have any such writ, process, warrant, order or judgment served on him intends to escape from this state under protection of Sunday, any officer furnished with an order authorizing service or execution by the judge or magistrate of any incorporated town may serve or execute such writ, process, warrant, order or judgment on Sunday, and it is as valid as if it had been done on any other day.”

We conceive that execution of the warrant early Sunday morning was justified by its explicit language, notwithstanding the absence of an affidavit satisfying Section 48.20. We need not pause to inquire why that statute, originally enacted in 1828, seems to pertain only to warrants issued by a “judge or magistrate of any incorporated town.” Section 933.101, Florida Statutes (1975), enacted in 1957 to deal particularly with search warrants rather than with writs generally, provides:

“A search warrant may be executed by being served on Sunday, if expressly authorized in such warrant by the judge or magistrate issuing the same.”

The later, more specific expression of the legislative will controls. See Mann v. Goodyear Tire & Rubber Co., 300 So.2d 666 (Fla.1974). Service of the warrant on Sunday morning was proper.

Appellant contends also that the affidavit supporting the warrant was substantially insufficient. It was sufficient.

AFFIRMED.

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


author: PER CURIAM.

text:
    Sherwin DORFMAN a/k/a Bud Dorfman, as Executor of the Estate of Meyer Dorfman, Appellant, v. AETNA LIFE INSURANCE COMPANY, Appellee.
    No. 75-1857.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.

      Stanley D. Caidin, Miami, for appellant.
    Magill, Sevier & Reid and Victor H. Womack, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant executor seeks reversal of an adverse summary judgment on the estate’s counterclaim to recover in excess of $10,000 in medical expenses under an insurance policy issued by appellee, Aetna Life Insurance Company.

In July 1969 Meyer Dorfman applied for and was issued by Aetna Life Insurance Company a major medical policy covering himself and his wife, Doris. Subsequently, a claim was filed on behalf of Doris. During the investigation of the claim, Aetna alleged it had discovered that Meyer had given incorrect answers in his application with respect to Doris’ medical history. Thereupon, on June 30, 1971 Aetna filed a complaint for rescission of the policy on the ground that had Meyer answered the questions in the application correctly, it would not have issued the subject policy. Meyer and Doris answered and counterclaimed to recover medical expenses under the policy. While this suit was pending Meyer and Doris passed away and since under the policy payments would be made to Meyer, Sherwin Dorfman, as executor of the estate of Meyer Dorfman, deceased, was substituted as party-defendant for the deceased couple. Through Sherwin’s answers to interrogatories, Aetna discovered that on February 2, 1975 all of the medical bills had been paid. Sherwin was permitted to amend his answer and counterclaim, and Aetna in response raised as a defense the statute of limitations of Section 734.29, Florida Statutes (1973). Thereafter, Aetna filed a motion for summary judgment on the ground that under the following provision, Aetna agreed to pay any medical bills that Meyer was required to pay and that since the bills had been paid by other individuals or insurance companies, Meyer was no longer required to pay them:

“TO THE INSURED: This is your Major Medical Expense Policy. Under this Policy the Company will pay you a part of certain eligible Major Medical hospital, nursing home, and medical expenses which you or one of your dependents insured under this Policy (a ‘covered person’) is required to pay.”

As an alternative ground, Aetna argued that since Meyer has been dead over three years and no claims have been filed against the estate with respect to these bills, the estate is not required to pay them under Section 734.29, Florida Statutes (1973). Following argument of counsel, the trial judge granted summary judgment for Aet-na on the counterclaim and also ruled that in view of the foregoing, Aetna’s action was moot since the insureds are deceased. We reverse.

It is well established that where the terms of an insurance policy are susceptible of two interpretations, that interpretation which sustains the claim for indemnity or which allows the great indemnity will be adopted. See 18 Fla.Jur. Insurance § 407 at 379 (1971) and cases cited therein. We are in agreement with the appellant that the words “required to pay” in the provision of the policy set out above should be construed to mean “obligated to pay”. Therefore, under the subject policy, Aetna is required to reimburse Meyer Dorfman for the medical expenses which he paid or was obligated to pay. When Meyer’s wife, Doris, incurred medical expenses for which Meyer became liable, Aetna in turn then became obligated to pay Meyer. In light of the above, we find Aetna’s argument with respect to Section 734.29, Florida Statutes (1973) has no merit. Further, this non-claim statute is inapplicable as it is a defense only available to an estate.

Accordingly, the summary judgment is reversed and the cause remanded to the circuit court for a trial on both Aetna’s claim for rescission and Sherwin Dorfman’s counterclaim.

Reversed and remanded.

      . “734.29 Limitations against unadministered estates.—
      “(1) After three years from the death of any person his estate shall not be liable for any obligation or upon any cause of action if no letters testamentary or of administration with respect thereto have been taken out in Florida within said three years, or if such letters have been taken out but neither proof of publication of notice to creditors, nor the claim of any creditor has been filed in the circuit court within said period; provided, . . ”


author: HAVERFIELD, Judge.

text:
    E. V. R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 76-24.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

This is an appeal from an adjudication of delinquency.

A petition for delinquency for larceny of an automobile was filed against juvenile E.V.R. and a plea of denial was entered on his behalf by court appointed counsel. An adjudicatory hearing was held on October 10, 1975 and after presentation of all the evidence, appellant renewed his motion for judgment of acquittal. The motion was denied and appellant requested to make a closing argument. The judge denied appellant’s request for the reason that the State waived closing statement and, therefore, appellant was not entitled to argument. Thereupon, the judge entered an adjudication of delinquency and directed that appellant be placed under the supervision of the Florida Division of Youth Services.

Appellant contends that the judge’s refusal to afford his counsel the opportunity to present argument on the evidence and the applicable law deprived him of his constitutional rights to effective assistance of counsel and due process.

Determination of the issue in the present case is the due process standard in juvenile proceedings as developed by In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) which is one of fundamental fairness with an emphasis on fact finding procedures and the requirement of effective assistance of counsel logically resulting therefrom. MeKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). The extent of counsel’s participation to insure fundamental fairness in an adjudicatory hearing is clearly set out in Gault, supra, 387 U.S. at 36, 87 S.Ct. at 1448:

“. . .A proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child ‘requires the guiding hand of counsel at every step in the proceedings against him.’ ...”

If counsel is to render effective assistance to his juvenile client at every step in the proceedings and to prepare and submit a defense upon ascertaining that a defense exists, then he must be permitted the opportunity to render a closing statement in a final attempt to persuade the court of the juvenile’s innocence. We, therefore, conclude that the presentation of an argument by counsel based upon the evidence introduced at the adjudicatory hearing to be an integral part of a juvenile’s right to effective assistance of counsel and the denial of that right unless waived is a denial of due process of law. See In re F., 11 Cal.3d 249, 113 Cal.Rptr. 170, 520 P.2d 986 (1974).

Accordingly, the adjudication of delinquency is reversed and the cause is remanded to the circuit court, juvenile division, to hold a new adjudicatory hearing.

Reversed and remanded.


author: PEARSON, Judge.

text:
    Robert J. GROEBNER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-239.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.

      Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PEARSON, Judge.

The defendant was found guilty by a jury of grand larceny and sentenced to serve five years in the state prison. On this appeal, he raises the question of whether he had a fair trial under the Constitution and laws of the State of Florida. We hold that he did not receive a fair trial and reverse.

The controlling question presented is whether the cumulative effect of repeated improper comments and improper questions by the assistant state attorney was such that the jury verdict may have been based upon inadmissible evidence or upon passion and prejudice. Although the trial judge tried manfully to repair the damage by sustaining objections and in some cases giving cautionary instructions to the jury, we hold that the instructions cannot, in this case, be held to have cured the errors. Cf. Barnes v. State, 58 So.2d 157 (Fla.1951); and Adams v. State, 192 So.2d 762 (Fla.1966).

The assistant state attorney, in opening statement, characterized the defendant as the “. . . most slick conartist who has operated in South Florida.” A motion for mistrial was made and denied. A prosecutor may not in opening statement attack the defendant’s character. See Post v. State, 315 So.2d 230 (Fla. 2d DCA 1975); and cf. Brown v. State, 284 So.2d 453 (Fla. 3d DCA 1973).

The prosecuting witness was allowed to elicit evidence of the defendant’s moral character and of a specific act of misconduct which allegedly took place after the events which gave rise to the instant charge. She was allowed to testify that the defendant had struck her and also that he was excommunicated by the Mormon Church. The State was obdurate in eliciting this testimony. A motion for mistrial was made and denied. The evidence was irrelevant and prejudicial. See Mann v. State, 22 Fla. 600 (Fla.1886); and Simmons v. Wainwright, 271 So.2d 464 (Fla. 1st DCA 1973).

In cross-examination, the assistant state attorney questioned the defendant as follows:

# * * * * *
“Q. Have you ever been convicted of a crime?
A. Yes, I have.
Q. Do you want to tell me about it?
MR. LEVY: I object to the form of that question.
THE COURT: Sustained.
BY MR. KOLSKY:
Q. Where and when?
MR. LEVY: Same objection.
THE COURT: Sustained.
Let’s confer just a moment, please. (Thereupon, a side bar conference was had out of the hearing of the jury and the reporter, after which the following proceedings were had:)
BY MR. KOLSKY:
Q. How many times have you been convicted of a crime?
A. Four.
MR. LEVY: Could we approach the Bench for a minute with the reporter? (Thereupon, the following proceedings were had at side bar out of the presence of the jury:)
MR. LEVY: Your Honor, I would object to the question that was asked. The Court said to rephrase and told him not to ask why and when and the circumstances of any convictions.
THE COURT: I sustained the objection.
Further,
sf: * if: * s}s
“Q. I have just a few short questions, Mr. Groebner.
Did you ever try to kill your former wife by running her off the road with your car?
A. No, I did not.
Q. On how many occasions didn’t you do that?”
Further,
4: * * :}: s¡«
Q. Isn’t it a fact, Mr. Groebner, that you took that thousand dollars that you received from Morningside Pawn Brokers and gambled that money?”

See Kirk v. State, 227 So.2d 40 (Fla. 4th DCA 1969), as to the duty of a prosecuting attorney.

In closing argument, the assistant state attorney commented:

“MR. KOLSKY: ‘Extortionists, venomous, burglars’ — Judy Groebner and Nancy Durkee, they put him away.
“A leopard never changes its spots. He has been convicted of crimes four times, and I tell you a leopard never changes its spots.”

The improper remarks of the prosecuting officer in this case were of such a character that neither objection nor curative instruction could entirely destroy their sinister influence.

Reversed for a new trial.


text:
    David Dixon RUSSELL, Appellant, v. The STATE of Florida, Appellee.
    No. 76-293.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.

      Robert C. Eber, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

The defendant, David Dixon Russell, was adjudged guilty of committing an aggravated assault upon one Paul Comartos by shooting Comartos in the leg after an altercation in defendant’s gun shop. The trial was before the court without jury. The sentence prescribed for aggravated assault is a term of imprisonment not exceeding five years. Defendant was given probation, the terms of which included a special condition: “. . . the Defendant will not be -permitted to be physically on the premises known as, ‘Dave’s 95th Street Gun Shop,’ located at 9507 N.W. 27th Avenue, Miami, Florida.”

On this appeal from the judgment and sentence, the defendant presents two points, urging (1) that he did not expressly and intelligently consent to the waiver of a jury trial and (2) that the special condition of probation is illegal. Each of the points fails to show error on this record.

The defendant was represented at trial by privately-employed counsel, who suggested a waiver of jury to' the court. The determination to proceed without a jury was orally agreed to by the defendant pursuant to a question by the court. Thereafter, the defendant signed a written waiver. The waiver of jury trial was sufficient in all respects. See Jones v. State, 155 Fla. 558, 20 So.2d 901; Parks v. State, 263 So.2d 642 (Fla.3d DCA 1972); see also Quartz v. State, 258 So.2d 283 (Fla.3d DCA 1972); Kinser v. State, 291 So.2d 80 (Fla.3d DCA 1974).

The trial court is vested with broad discretion in determining the conditions of probation; however, such discretion is not unbridled. The purpose of probation is primarily to rehabilitate and not primarily to punish. Kominsky v. State, 330 So.2d 800 (Fla.1st DCA 1976). See also Roy v. State, 207 So.2d 52 (Fla.2d DCA 1967). A condition of probation that is reasonably related to the crime for which the offender has been convicted and that is directed to a reasonable restraint of activity in order to diminish the inclination to commit similar crimes is proper and, therefore, is not an abuse of discretion. See the rule in People v. Dominguez, 256 Cal.App.2d 623, 64 Cal.Rptr. 290, 293 (1967); and cf. Barnhill v. U. S., 279 F.2d 105 (5th Cir. 1960). This record affirmatively shows the reasonable relationship of the condition of probation to the facts of this case.

Affirmed.

      . See § 775.082(3)(d), Fla.Stat. (1975); and § 784.021(2), Fla.Stat. (1975).


text:
    Willy HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-386.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.

      Hirschhorn & Freeman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Appellant seeks reversal of a judgment of conviction based upon a jury verdict finding him guilty of carrying a concealed firearm.

It is appellant’s contention that he is entitled to a reversal on the grounds: (1) that the evidence failed to establish to the exclusion of and beyond every reasonable doubt the element of concealment, and (2) that appellant’s statements, while in jail, to a co-defendant who was acting under a promise of immunity from the State, should have been suppressed pursuant to the exclusionary rule corollary to the Fourth Amendment.

We have carefully considered the points on appeal in the light of the briefs and arguments of counsel and have concluded that reversible error has not been shown. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), reh. den. 386 U.S. 940, 951, 87 S.Ct. 970, 17 L.Ed.2d 880; Spinkellink v. State, 313 So.2d 666 (Fla.1975); Grant v. State, 171 So.2d 361 (Fla.1965); State v. Sellers, 281 So.2d 397 (Fla.2d DCA 1973).

Affirmed.


author: NATHAN, Judge.

text:
    Parker Charles PEAK, Appellant, v. The STATE of Florida, Appellee.
    No. 76-398.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.

      Philip Carlton, Jr., Miami, and Thomas A. Wills, Coral Gables, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., and David A. Acton, Legal Intern, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   NATHAN, Judge.

Parker Charles Peak was charged in a three count information with attempted petit larceny by unlawful use of a credit card, uttering a forged instrument and forgery. He was tried non-jury, found guilty as charged, adjudicated guilty and sentenced to one day on count one, three years in the state penitentiary on count two and three years in the state penitentiary on count three, to run consecutively with the sentence on count two.

The primary issue in this case is whether the trial court erred in admitting, over defense counsel’s objection, testimony of involuntary inculpatory statements made by the defendant to a private security officer. The record reflects that on August 15,1975, Peak entered a department store, selected a pair of shoes for purchase and gave the salesman a credit card issued in the name of Rudolph Quartucci. The salesman rang up the sale, and received an automatic numerical notice to telephone “credit,” which he did. Peak signed the sales slip for the shoes. A security supervisor arrived on the scene, took the charge plate and asked Peak to come with her to the credit office because of a problem with the sale. Peak ran out of the store, was pursued by store personnel, caught and brought back to the security office where the security supervisor questioned him about the credit card.

At trial, the security supervisor testified over defense counsel’s objection, that Peak stated to her that the credit card was not his, that someone gave it to him and that he knew he should not be using it. After these statements were made, a police officer arrived and read Peak his Miranda rights. When asked whether Peak went voluntarily to the security office, the supervisor answered, “Not entirely.” She then explained that he was out of breath and could not resist, so she took .him by the elbow and walked back to the office; that he could not have just gotten up and walked out of the office, and that he was technically being restrained.

A conviction which is based in whole or in part on an involuntary confession violates the defendant’s right to due process of law guaranteed by the Fourteenth Amendment regardless of the truth or falsity of the confession. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940). The record in this case demonstrates that a confession was made to a private security officer rather than a police officer, and further that from the circumstances, it was not voluntarily made.

We hold that an involuntary confession, whether made to law enforcement officers or private persons, is- inadmissible. People v. Haydel, 12 Cal.3d 190, 115 Cal.Rptr. 394, 524 P.2d 866 (1974). Also see Commonwealth v. Mahnke, 335 N.E.2d 660 (Mass.1975), and People v. Frank, 52 Misc.2d 266, 275 N.Y.S.2d 570 (1966). Therefore, we reverse the conviction and sentence, and remand the cause for a new trial.

In view of the foregoing, it is not necessary to discuss the other points raised on appeal.

Reversed and remanded.

      . For the purposes of this opinion, it is not necessary to concern ourselves with the technical distinction between confessions and admissions. See Bates v. State, 78 Fla. 672, 84 So. 373 (1919).


text:
    William LEDEE, Appellant, v. The STATE of Florida, Appellee.
    No. 76-495.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Eugene P. Spellman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Defendant, William Ledee, appeals a judgment of guilt for uttering a forged instrument and sentence to three years in the state penitentiary following a determination that he violated his probation.

William Ledee was charged with uttering a forged instrument and after entering a guilty plea was placed on 15 years probation. Subsequently, Ledee was charged by a federal indictment for uttering a forged instrument, tried and convicted. A notice of appeal of that conviction was filed with the 5th Circuit Court of Appeal. In the meantime, an affidavit of violation of probation was filed against Ledee and a hearing conducted at which the prosecuting attorney stipulated that the sole basis for revocation was Ledee’s conviction in the federal district court. The trial judge found that Ledee had violated his probation and entered judgment adjudicating him guilty of uttering a forged instrument and sentenced him to three years in the state penitentiary. We reverse.

Our Supreme Court long ago established the principle of law that if an appeal has been taken from a judgment of guilt in the trial court, that conviction does not become final until the judgment of that court has been affirmed by the appellate court. Joyner v. State, 158 Fla. 806, 30 So.2d 304 (1947); see also State ex rel. Volusia Jai-Alai, Inc. v. Board of Bus. Reg., 304 So.2d 473 (Fla. 1st DCA 1974).

Ledee’s conviction being the sole ground for the revocation of his probation, we find that the trial judge was in error in revoking his probation. Therefore, the judgment appealed is reversed and the sentence vacated.

It is so ordered.


text:
    SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY and Burnup & Sims, Inc., Appellants, v. Lawrence BARNES and Patsy Barnes, his wife, Appellees.
    Nos. 76-632, 76-633.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.

      Knight, Peters, Hoeveler, Pickle, Niem-oeller & Flynn, Jeanne Heyward, Mershon, Sawyer, Johnston, Dunwody & Cole, Mar-low, Mitzel, Ortmayer & Shofi, Miami, for appellants.
    Sam Spector, Tallahassee, Nachwalter, Christie & Falk and Steven P. Kronenberg, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

Defendants Southern Bell and Bumup & Sims, Inc. appeal a summary judgment as to the issue of liability entered in favor of plaintiff Lawrence Barnes in this personal injury action.

Lawrence Barnes filed a complaint and an amended complaint naming as defendants Southern Bell, Burnup & Sims, Fred Rust, Edward Toy and Florida Power & Light Company to recover damages for injuries sustained as a result of electric shock. Burnup had contracted with Southern Bell to lay telephone cables and wire on U.S. Highway No. 1 at Naranja Lakes. Barnes was an employee of Leonard Brothers Trucking, who had agreed with Burnup to fulfill certain of Burnup’s contractual obligations with Southern Bell. On the day in question (November 16, 1972), Barnes and defendants Toy and Rust were assigned the task of moving pre-casted cement manholes. Toy was the operator of the crane and Rust operated the flatbed truck on to which the crane loaded the manholes. Just as the loading had been completed and Rust began to drive away, the crane struck Florida Power & Light Company’s overhead high tension wires causing one of them to fall to the ground. Barnes, who was standing beside the crane’s cab, was electrified. His amended complaint charged Southern Bell and Burnup with failure (1) to warn him of the location of the high tension wires, (2) to notify Florida Power & Light that work operations were about to begin in order that the appropriate precautions might be taken, and (3) to furnish him with a reasonably safe place to work. Burnup answered that it was immune under the workmen’s compensation act and pled as affirmative defenses assumption of the risk and contributory negligence. Southern Bell in its answer alleged that Burnup was an independent contractor over whom it had no control and also raised the defenses of assumption of the risk and contributory negligence. Southern Bell and Burnup also filed cross-claims against Toy and Rust and a third-party complaint against Leonard Brothers. Following pretrial discovery, Barnes filed a motion for summary judgment and after hearing argument, the trial judge entered judgment as to liability against Southern Bell and Burnup.

Southern Bell and Burnup contend there remain genuine issues as to material facts precluding the entry of summary judgment. We find this point well taken.

Reviewing the facts in a light most favorable to Southern Bell and Burnup, we find the existence of factual issues with respect to the following:

First, whether or not Toy’s status was that of an independent contractor or a borrowed servant. Toy’s deposition testimony reflects that he was in complete charge of the operation of the crane; he had the authority to stop work, and the right to refuse to continue in the event he felt the operation was hazardous. The affidavit of John Benson supports Toy’s testimony that the crane is under his exclusive control. Thus, it is for the jury to determine whether Toy was in fact an independent contractor or a borrowed servant. See, e. g. King v. Young, 107 So.2d 751 (Fla.2d DCA 1958); Gregg v. Weller Grocery Co., 151 So.2d 450 (Fla.3d DCA 1963).

Second, it is disputed whether plaintiff Barnes himself was contributorily negligent. In his deposition Barnes testified that he had worked as an apprentice lineman and was somewhat knowledgeable about the potential dangers of high tension power lines. Being an oiler, he knew that a crane was not supposed to be operated within six feet of a high tension power line and that he was not supposed to touch the crane when it was in close proximity to such a line. Hence, the question of whether Barnes was contributorily negligent or assumed the risk is for the jury to decide. See Embry Riddle Co. v. Carrodus, 207 So.2d 472 (Fla.3d DCA 1968); Weedman v. Sunland Roller Rink, Inc., 323 So.2d 688 (Fla.3d DCA 1975).

Third, there is an issue as to whether Burnup is immune from liability pursuant to Sections 440.10, 440.11, Florida Statutes (1971) in that Burnup alleges it was a general contractor under and pursuant to a general contract with Southern Bell and that part of the work was subcontracted to Leonard Brothers and, therefore, it was immune under the above workmen’s compensation statutes. The contractual relationship between Southern Bell and Burnup not having been fully explored and their contract being absent from the record, summary judgment on this issue is precluded. See Little v. Jim Santi, Inc., 334 So.2d 150 (Fla.3d DCA 1976).

Summary judgment is reversed.

      . In whose favor a separate summary judgment was granted.


text:
    The STATE of Florida, Petitioner, v. George R. DEVINE, Respondent.
    No. 76-1043.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Robert L. Shevin, Atty. Gen., Richard E. Gerstein, State Atty. and John H. Lipinski, Asst. State Atty., for petitioner.
    S. L. Gaer, Miami, for respondent.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Petitioner, the State of Florida, by writ of certiorari seeks review of an order on habeas corpus in this extradition proceeding.

Pursuant to a Governor’s rendition warrant, respondent-appellee, George Devine, was arrested as a fugitive from the State of California. Devine filed a writ of habeas to contest his extradition alleging that if he was returned, he would be denied due process of law in that California police officers have threatened and vowed to kill him or cause him great bodily harm upon his return because of their belief that he had blinded one of their fellow officers. A writ was issued and pursuant to the trial judge’s request, Devine and the State of Florida filed written memoranda of law as to whether the above allegation was a proper ground to be argued in an extradition proceeding. After hearing argument of counsel, the trial judge on May 28, 1976 entered an order determining that the allegation of threats of bodily harm or death by California police is a ground which can be raised by habeas corpus in an extradition proceeding and set a hearing at which Devine would be able to produce testimony with respect to his contention. The State of Florida filed a petition for writ of certiorari to challenge this order and we find merit in the State’s petition.

The authority of a judge in a habeas corpus proceeding is limited to whether a crime has been charged in the demanding state, the fugitive in custody is the person charged, and the fugitive is in the demanding state at the time the alleged crime was committed. See State v. Quigg, 91 Fla. 197, 107 So. 409 (1926); State ex rel. Cocchiaro v. Purdy, 260 So.2d 556 (Fla. 3d DCA 1972) and cases cited therein.

Further, in such a proceeding the trial judge is prohibited from inquiry into the motives of the demanding state in seeking extradition and Devine must look to the California courts to guard his rights to due process and equal protection of the law with regards to his allegation that he will be killed or receive great bodily harm. See State v. Cox, 306 So.2d 156 (Fla. 2d DCA 1974) and Watson v. Montgomery, 431 F.2d 1083 (5th Cir. 1970).

Accordingly, the order of May 28, 1976 is vacated and the cause remanded to the trial court for further proceedings not inconsistent herewith.

Certiorari granted.


author: HENDRY, Chief Judge.

text:
    Camille JONES, Appellant, v. AIRPORT RENT-A-CAR, INC., a Florida Corporation, and James Howard King, Appellees.
    No. 76-1133.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Goodhart & Rosner, Miami, Beermann, Swerdlove, Woloshin & Barezky, Chicago, Ill., for appellant.
    Corlett, Merritt, Killian & Mascaro, Robyn Greene, Miami, for appellees.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   HENDRY, Chief Judge.

Plaintiff-appellant sued defendants-ap-pellees for damages for bodily injuries when appellant was allegedly struck by a vehicle owned by appellee, Airport Rent-A-Car, Inc. and driven by appellee-King. The trial of the case before a jury resulted in a not guilty verdict for appellees on the issue of negligence. Appellant appeals from the judgment for appellees entered on the verdict and from the denial of her motion for new trial.

Appellant claims as error the trial judge’s refusal to grant her motion for new trial, in that the verdict of the jury was clearly against the manifest weight of the evidence.

We have held that in order to overturn a trial judge’s denial of a motion for new trial, it is incumbent upon an appellant to clearly demonstrate an abuse of discretion. Pix Shoes of Miami, Inc. v. Howarth, 201 So.2d 80 (Fla.3d DCA 1967). In that the jury rendered its verdict based upon competent substantial evidence, no abuse of discretion has been shown on the part of the trial judge in denying appellant’s motion for new trial. Billman v. National Merchandise Co., Inc., 311 So.2d 403 (Fla.1st DCA 1975); Jennings v. City of Winter Park, 250 So.2d 900 (Fla.4th DCA 1971).

The only other contention of appellant that need be discussed is that the trial judge committed reversible error in failing to allow appellant to use appellee-King’s deposition at trial for impeachment purposes. Said deposition did not appear in the court file at the time of trial and only after trial did appellant’s counsel offer an explanation, by way of affidavit, as to its whereabouts. Apparently, the deposition, which had been taken more than one year prior to trial, had been transcribed and filed some two working days before trial, but had not yet been removed from the clerk’s office to the court file. Appellees had neither been notified of the transcription of the deposition nor given a copy of said deposition prior to trial.

After having carefully reviewed the record in the proceedings, along with the excluded deposition, we are of the opinion that the complained of act could not have injuriously affected the substantial rights of appellant and therefore, error, if any, was harmless. Section 59.041, Florida Statutes (1975).

We have considered the record, all points in the briefs and arguments of counsel and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the judgment appealed is affirmed.

Affirmed.


author: OTT, Judge.

text:
    B & H SALES, INC., Appellant, v. The FUSCO CORPORATION, d/b/a Sunshine Associates, Appellee.
    No. 76-1113.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1977.

      Roland D. Waller of Altman & Waller, New Port Richey, for appellant.
    Richard M. Robbins, Clearwater, for ap-pellee.
   OTT, Judge.

Appellant, plaintiff below, appeals from an order granting defendant-appellee’s motion to dismiss. The court below, having found that the appellant had failed to name the true fee simple owner of certain real property as a proper party defendant by its correct corporate name, dismissed the action for failure to file suit within one year as required by Section 713.22(1), Florida Statutes. Under the circumstances disclosed in the record (hereinafter discussed) we find the trial court erred in its understanding and application of the law and must, therefore, reverse.

The appellant is a materialman to a contractor (Mark Fame, Inc.) on a construction project. Mark Fame, Inc. had contracted with “Sunshine Associates, Inc.,” as “owner,” to install a water and sewer system. The appellant furnished materials to Mark Fame, Inc. in May and June of 1974. On September 11, 1974, (within the time allowed by law), appellant filed its claim of lien against the real property and named Sunshine Associates, Inc. as the owner. On December 9, 1974, (again, well within the time allowed by law) the appellant filed suit to foreclose its claim of lien, again naming Sunshine Associates, Inc. as defendant. Service was obtained on the owner’s representative at the job site as “President” of “Sunshine Associates, Inc..”

Various defensive pleadings were filed including a motion to abate and an answer with affirmative defenses. Responses were made to appellant’s interrogatories, request for admissions and request for production of documents. All defensive pleadings and responses were made in the name of “Sunshine Associates, Inc.” These contained admissions of “ownership” of the property and that the construction was commenced; that it had made progress payments under the contract and held certain remaining contract funds; that it was in a dilemma over the pending bankruptcy of Mark Fame, Inc., and many other such matters.

Upon appellant’s motion for summary judgment, it was first disclosed that the correct corporate name of the fee simple owner of the real property in question was The Fusco Corporation, and, as such, was not named as a party to the action. At this time it was further established that there was, in fact, an actual Miami corporation by the name of “Sunshine Associates, Inc.,” which had no connection with the property or the parties to this action. The appellant was given leave to amend and filed an amended complaint on March 16, 1976 (some one year and three months after the filing of the claim of lien). The amended complaint alleged that The Fusco Corporation was the owner of the property involved and, doing business as Sunshine Associates, Inc., had entered into the contract with Mark Fame, Inc.

After granting appellee’s motion to dismiss, the court below denied appellant’s petition to reconsider the dismissal.

At issue is the application of Section 713.-22(1), Florida Statutes.

No lien . . . shall continue for a longer period than one year after the claim of lien has been recorded unless within that time an action to enforce the lien is commenced in a court of competent jurisdiction.

The lower court held for the appellee, reasoning that appellant’s claim was barred since the claim was not brought against the true owner by its correct corporate name within one year of the filing of the claim of lien.

This court finds no fault with appel-lee’s authority concerning the application of statutory limitation periods. Nevertheless, we feel that to literally enforce the one year limitation of Section 713.22(1) would-— in light of the circumstances in this case — • be both manifestly unjust and inconsistent with the decisions bearing on the question.

Where a plaintiff clearly sues the wrong corporate party, the mistake cannot be remedied after the period of limitations has elapsed any more than in the case where a wrong individual has been sued. 51 Am.Jur. Limitation of Actions, § 294 (1970) It is well established, however, that if — after the statute of limitations has run — a substitution of a corporation as a party defendant for another corporation amounts to no more than rectifying a misnomer, the statute of limitations will not be a bar. Thus, we agree with appellant’s contention that under the above facts his amended complaint amounted to no more than a correction of a misnomer, and therefore, related back to the original pleading as provided by Fla.R.Civ.P. 1.190(c).

In Argenbright v. J. M. Fields Co., 196 So.2d 190 (Fla. 3d DCA 1967), the Third District Court of Appeal’s reversal in plaintiff-appellant’s favor was based upon facts indicating that while the original defendant (“J. M. Fields Co., a New Jersey corporation”) and the substituted defendant (“J. M. Fields of East Florida, Inc.”) were, in fact, separate and distinct corporations they not only shared a similar name, but also had the same agent for service and employed the same attorneys. The court found that the appellee had had notice of the plaintiff-appellant’s action from the outset and was not prejudiced by the substitution of names. The court held:

Under those circumstances it would seem unfair to allow [the defendant] to avoid its rightful obligation through a technical error where it had notice of the plaintiff’s claim from the outset. 196 So.2d at 194.

The Argenbright court cited with approval the language of Justice Holmes in New York Central & Hudson River Railroad Co. v. Kinney, 260 U.S. 340, 346, 43 S.Ct. 122, 123, 67 L.Ed. 294 (1922):

[W]hen a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and ... a liberal rule should be applied.

In the Argenbright case the actions of the defendant-appellee misled the plaintiff-appellant and caused the statute of limitations to run. The Fourth District Court of Appeal considered a similar situation in Galuppi v. Viele, 232 So.2d 408 (Fla. 4th DCA 1970). There the court found that “the pleadings filed and the other actions taken by [the named defendant — a ‘shell’ corporation] .■ . . were of a nature calculated to lead the plaintiff to believe that she had sued the correct party.” Galuppi, supra at 411. The court held that the amendment to the complaint, changing the description of the defendant from that of a corporation (Viele Groves) to its president as an individual (Charles E. Viele), related back to the commencement of the action so as to defeat a defense based upon the statute of limitations.

In Cabot v. Clearwater Construction Company, 89 So.2d 662 (Fla.1956), the Florida supreme court held that an erroneous description of a defendant could be amended under the circumstances without the introduction of new parties or the pleading of a new cause of action. An important consideration of the court in reaching its decision was stated as follows:

No longer are we concerned with the ‘technicalities of the trade.’ The trial of a lawsuit should be a sincere effort to arrive at the truth. It is no longer a game of chess in which the technique of the maneuver captures the prize. 89 So.2d at 664.

HOBSON, Acting C. J., and McNULTY, J., concur.

      . The record below sheds some light on the confusion surrounding Sunshine Associates, Inc. In response to the court’s question “Is there a Florida corporation called Sunshine Associates, Inc.?”, appellee’s attorney responded, “ . . . Tallahassee advised me that its a Miami based corporation, at least all the officers, resident agents and everybody [are] in Miami. It’s a Miami based corporation with Miami interests.”
      The lower court judge further noted that “for the purpose of this motion [to dismiss], I have to assume that there is a Florida corporation called The Fusco Corporation and that that corporation was doing business as Sunshine Associates, a fictitious name at the appropriate time and place.”

      . Jack Stilson & Co. v. Caloosa Bayview Corp., 278 So.2d 282 (Fla.1973); Harris Paint Co. v. Multicon Properties, Inc., 326 So.2d 43 (Fla. 1st DCA 1976). Cf. Hamilton v. Largo Paint & Decorating, Inc., 335 So.2d 623 (Fla. 2d DCA 1976); Golconda Corp. v. Newton, 336 So.2d 433 (Fla. 1st DCA 1976).

      . 51 Am.Jur., supra. See Cabot v. Clearwater Construction Co., 89 So.2d 662 (Fla.1956); Galuppi v. Viele, 232 So.2d 408 (Fla. 4th DCA 1970); Argenbright v. J. M. Fields Co., 196 So.2d 190 (Fla. 3d DCA 1967).

      . Fla.R.Civ.P. 1.190(c) provides:
      When the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.

        Cf. Jack Stilson & Co. v. Caloosa Bayview Corp., 278 So.2d 282 (Fla.1973), in which by way of dicta, the supreme court observed that “A correction or change by way of an amendment to a basic claim or of a timely suit upon the claim is of course allowable.” See also Sexton v. Panning Lumber Co., 260 So.2d 898 (Fla. 4th DCA 1972), in which the court approved of a liberal posture in allowing amendments — citing part (e) of Rule 1.190.

      . See Rubenstein v. Burleigh House, Inc., 305 So.2d 311 (Fla. 3d DCA 1974), in which Kinney was cited with approval.

      . Other comments on the problem of a change in parties after a statute of limitations has run may be found at 8 A.L.R.2d 6 (1949).


text:
    Robert E. PHILLIPS, Petitioner, v. SANTA FE COMMUNITY COLLEGE, et al., Respondents.
    No. DD-190.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1977.
    Rehearing Denied March 2, 1977.

      Peter F. Laird, of Meldon, Laird & Chap-nick, Gainesville, for petitioner.
    Winifred L. Wentworth, Gen. Counsel and John D. Carlson, Tallahassee, for respondents.
   ON MOTION TO DISMISS

SMITH, Judge.

On complaint by the president of Santa Fe Community College, petitioner Phillips has been dismissed from his teaching position for incompetence and misconduct. The complaint was successively considered by a hearing officer of the Division of Administrative Hearings, who found the facts and recommended suspension for six months, by the Board of Trustees of the College, which accepted the recommended findings and conclusions but imposed the penalty of dismissal, and by the State Board of Education, which on Phillips’ petition reviewed and sustained the Trustees’ decision. Phillips now petitions for judicial review of the final agency action discharging him. Sections 120.57 and .68 (Supp.1976), and Sections 230.759 and .760, Florida Statutes (1975); Fla.Admin.Code Rule 6A-14.411.

Respondents’ motion to dismiss the petition demonstrates that Phillips’ petition was here filed more than 30 days after the Board of Education entered an order sustaining the Santa Fe Trustees. Respondents question, therefore, whether the petition for review was timely. Fla.App. Rule 4.5c. Phillips counters that the order of the Board of Education does not satisfy formal requisites for an agency’s final order and, therefore, that we should remand the case to the Board of Education for entry of a final order which may be judicially reviewed. Section 120.68(13), Florida Statutes (Supp.1976). We are thus called on to identify “final agency action” in a proceeding such as this.

Although supreme authority in the State plan for public education is committed to the governor and cabinet acting as the State Board of Education, Sections 229.012, .053, Florida Statutes (1975), the school code places contract authority at the operating level — in the case of each community college, with its district Board of Trustees. Sections 230.753, .7535, ,754(2)(d), .759, .760, Florida Statutes (1975). The Board of Education’s rule concerning dismissal from continuing contracts, supra note 1, provides the decision to dismiss instructors shall be made by the Board of Trustees but may be appealed to the Board of Education “through the commissioner for review” and, further, that “the decision of the state board shall be final . . . .”

In the case of decisions affecting substantial interests, the Administrative Procedure Act contemplates that a hearing will be conducted by the agency head, by a member of a collegial body constituting the agency head or by a hearing officer of the Division of Administrative Hearings; that a hearing officer’s proposed order will be submitted to the agency authorized to act; and that the agency’s final order shall meet certain standards and be subject to judicial review. Sections 120.57(1), 120.59, 120.68. Thus to require such final agency action by the Board of Education, as sought by petitioner Phillips, would effectively displace the Santa Fe Trustees as the body having authority to discharge instructional personnel at that college. A hearing would be required before the Board of Education itself, or before one of its members, or before a hearing officer whose proposed order would be submitted to the Board. Any prior proceedings before the district Trustees would thereby be eclipsed. We decline to so emasculate the specific design of the Florida school code to make it conform to the more general scheme of the Administrative Procedure Act. We hold that the district board of trustees of each community college is the agency responsible for final action in disputes concerning dismissal of instructional personnel.

We must yet take account of the Board of Education’s retention of power to review administratively the Trustees’ final agency action. Fla.Admin.Code, Rule 6A-14.411(4). Although the right of judicial review attaches when final agency action has been taken, the administrative review remedy must first be exhausted before judicial review can commence. See School Board of Flagler County v. Hauser, 293 So.2d 681 (Fla.1974). We necessarily hold that the affected party may seek that administrative remedy, in the time and manner prescribed, without jeopardizing the judicial review secured to him by Section 120.68. Thus, Phillips’ timely application for review by the Board of Education tolled the time for seeking judicial review; and, after the Board of Education sustained the Santa Fe Trustees, Phillips had 30 more days in which to seek judicial review of the Trustees’ final action. Fla.App. Rule 4.5c.

The form of the Board of Education’s order sustaining the Trustees is inconsequential because it was not the “final order” of which Section 120.59(1) exacts “findings of fact and conclusions of law separately stated.” The “final order” was that of the Trustees, who fully complied with the Administrative Procedure Act by adopting the hearing officer’s findings of fact and conclusions of law and reviewing the full record before increasing the penalty to dismissal. Section 120.57(l)(b)(9), Florida Statutes (Supp.1976).

It appearing that Phillips’ petition for review was filed more than 30 days after the decision of the Board of Education reviewing and sustaining the final agency action in this case, the petition for review is

DISMISSED.

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

      . The regulations of the Board of Education implementing the Florida school code, ch. 228 et seq., Florida Statutes (1975) have “the full force and effect of law.” Sec. 229.041. Fla. Admin.Code Rule 6A-14.411, pertaining to instructional contracts of community colleges, provides in part that any employee under a continuing contract, such as Phillips, may be dismissed through the following procedure:
      “If the employee, upon being officially notified in writing by the board that it will consider the charges filed against him, wishes a public hearing, he shall notify the board in writing within ten (10) days after the date of the official notice. Upon receiving such a request, the board shall within ten (10) days notify the employee of the time and place of the public hearing. In the event the employee does not request a public hearing, the board shall proceed to take appropriate action. Any decision adverse to the employee shall be made by a majority vote of the full membership of the board. Any such decision adverse to the employee may be appealed by him in writing to the state board of education, through the commissioner for review; provided such appeal is filed within thirty (30) days after the decision of the board and provided further that the decision of the state board shall be final as to sufficiency or insufficiency for discontinuation of the continuing contract status.”

      . Section 120.59(1), Florida Statutes (1975) provides: “The final order in a proceeding which affects substantial interests shall be in writing or stated in the record and include findings of fact and conclusions of law separately stated . . . .” The record before us contains no transcript or minutes of action by the Board of Education, but only a letter by the Commissioner of Education advising Phillips’ lawyer that the Board on July 20, 1976, “sustained the action of the Santa Fe Community College District Board of Trustees dismissing Mr. Phillips from his continuing contract.” The letter contained no statement of findings or conclusions.


author: PER CURIAM. MAGER, C. J.,

text:
    Charles M. SHEPARD, Appellant, v. Shirley SHEPARD, Appellee.
    No. 76-1510.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1977.
    Rehearing Denied March 4, 1977.
    Osborne W. O’Quinn, Fort Pierce, for appellant.
    Charles E. Becht, Fort Pierce, for appel-lee.
   PER CURIAM.

Affirmed.

CROSS and DOWNEY, JJ., concur.

MAGER, C. J., dissents, with opinion.

MAGER, C. J.,

dissenting:

With all due respect to this court and the learned trial judge it is my humble opinion that the record reflects sufficient evidence to demonstrate the existence of a substantial change of circumstances bearing upon the welfare of the children involved so as to support the appellant-father’s petition for change of custody. 10A Fla.Jur., Dissolution of Marriage, § 330.

Furthermore, and apart from the foregoing, the record reflects that although the appellee-mother was originally awarded custody the court thereafter awarded temporary custody of the children to the father based upon the father’s verified petition for modification. The record also reflects that after having been granted custody, the ap-pellee-mother left the children with the father for a ten-month period preceding the father’s application to the court for modification.

Having found a justifiable basis to award temporary custody to the father (pending a final determination) the trial court, most respectfully, abused its discretion in dissolving that order without awaiting completion of an investigation by the Division of Family Services. Cf. Parken v. Safford, 48 Fla. 290, 37 So. 567 (1904). Undoubtedly, the trial court’s paramount concern was the welfare of the children, which, in my opinion, could best have been promoted by maintaining the status quo pending completion of the investigation by the Division of Family Services.

Accordingly, based upon the rationale in Parken v. Safford, supra, that portion of the judgment below canceling the order granting the father temporary custody should be vacated and set aside.


author: HOBSON, Acting Chief Judge.

text:
    COQUINA CLUB, INC., et al., Appellants, v. Ray T. MANTZ et ux., Appellees.
    No. 75-1629.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1977.
    John L. Laskey and E. Glenn Tucker of Treadwell, Emerson & Elkins, Naples, for appellants.
    Guión T. DeLoach, Naples, for appellees.
   HOBSON, Acting Chief Judge.

Appellants/defendants seek relief from a final judgment entered for appellees/plain-tiffs arising out of the disapproval by defendants, for membership in a condominium association, of a prospective purchaser of the apartment of the plaintiffs.

On or about July 24, 1974, one Garvin ‘made an offer to purchase plaintiffs’ condominium apartment. A real estate broker, acting for Garvin and the plaintiffs, forwarded to defendants an application of the prospective purchaser for membership in the Coquina Club condominium and attached an unexecuted copy of the sales agreement and deposit receipt, which was signed by Garvin and his wife. On the face of the application for membership in the defendant club was a statement reciting that Garvin had two children, ages six and ten. On August 1, 1974, the realtor was notified that Garvin’s application, pursuant to Article IV of the club rules and regulations, was rejected. Article IV, as explained by former officers of the condominium association, was nothing more than a procedure for application of certain portions of the Declaration of Condominium restricting ownership of apartments in the condominium to persons without children under twelve years of age.

Subsequently, on August 8, 1974, a demand was made upon defendants, pursuant to subsection 11.3 of the declaration of condominium, to provide a purchaser or to purchase the condominium of the plaintiffs within thirty days from the date of the demand. Defendants took no action with respect to this demand. Plaintiffs then initiated this action asserting discrimination in that other current apartment owners had children under twelve living in the complex. Plaintiffs sought on the one hand damages in the amount of $51,000 for lost opportunity arising out of the defendants’ rejection of the Garvin application. In the alternative plaintiffs requested specific enforcement of the provisions of the Declaration of Condominium (Section 11) requiring defendants to furnish a purchaser or purchase said apartment themselves.

Defendants denied any discrimination, contending that those apartment owners who had children under twelve were authorized pursuant to agreements executed by the developers of the complex prior to the adoption of the Declaration of Condominium. Defendants also affirmatively pleaded that plaintiffs were estopped to pursue their cause of action since prior to the attempted sale they had given their written approval to the very rules and regulations which they subsequently attacked. Finally, defendants asserted that plaintiffs failed to exhaust administrative remedies and failed to comply with the very provisions of the Declaration of Condominium which they sought to invoke. Following a trial the lower court granted plaintiffs’ prayer for specific performance of the condominium documents ordering defendants to provide a purchaser or to purchase the apartment themselves. The final judgment also provided a mechanism for awarding monetary damages, including punitive damages, in the event defendants failed to comply with the order for specific performance.

The issue for our consideration is whether the trial court misinterpreted the purpose of the provisions under section 11 of the Declaration of Condominium in requiring the defendants to either provide a purchaser or purchase the plaintiffs’ apartment themselves. A subsidiary question involves the validity of reasonable use and occupancy restrictions. Although the latter question is not dispositive of the primary issue herein, we would note that the condominium act in effect at the time of this transaction specifically allowed reasonable restrictions concerning use, occupancy, and transfer of units. Age restrictions in at least one other jurisdiction have even withstood constitutional attacks. Riley v. Stoves, 22 Ariz.App. 223, 526 P.2d 747 (1974) (age restriction to 21 years or older upheld).

Plaintiffs assert they are entitled to invoke the provisions of section 11 of the Declaration of Condominium requiring defendants to furnish a purchaser or approve the sale absent a purchaser which essentially requires defendants to purchase the apartment. We are convinced that such a result was not intended by these documents. In the first place, invocation of the procedures requires minimal satisfaction of several prerequisites. Thus, before a unit owner may make a demand for other purchasers to be provided (assuming disapproval or potential disapproval) the potential buyer or applicant must facially qualify for membership. Only upon meeting the basic requirements itemized on the application will the prospective purchaser be then subjected to closer financial scrutiny, thereby allowing the unit seller to make demand upon the association for a substitute purchaser.

This bifurcated application procedure, although not explicitly delineated in the condominium documents, is required since to hold otherwise would enable any present or future apartment owner to procure any potential buyer, have that person make application for membership in the association, and upon denial require the condominium association to provide a purchaser or purchase the condominium themselves. This type of arrangement, fraught with collusive possibilities, was certainly not intended or expected when the provisions of section 11 were drafted. Instead, defendants correctly assert the intent of section 11 is to allow the board of directors to screen qualified prospective residents in the condominium for financial responsibility. The prefatory language to section 11 also suggests that this was the intention of that section. It states, in part,

“11. Maintenance of community interests. In order to maintain a community of congenial residents who are financially responsible and thus protect the value of the apartments . . . ” (emphasis supplied)

Since defendants initially determined that Garvin failed to qualify for residency in the condominium, further inquiry to his financial responsibility was neither necessary nor required. Section 11 was never invoked.

Other factors support the result we reach here. We note that prior to the events giving rise to the instant case plaintiffs adopted in writing the rules and regulations which they now challenge. In addition, plaintiffs took their condominium subject to the covenants contained in the Declaration of Condominium, including section 10.9 allowing for the adoption of reasonable rules and regulations concerning the use of condominium property. Finally, even assuming the applicability of section 11 to the case sub judice, we doubt the plaintiffs complied with the procedures outlined in that section, namely no demand was made at the time of application pursuant to subsection 11.2(a), nor was the application accompanied by an executed copy of the proposed contract to sell.

Therefore, since we hold the plaintiffs’ purchaser failed to meet the basic requirements necessary to trigger the mechanism available in the financial responsibility section of the declaration of condominium, the trial court’s order directing specific performance of that section or in the alternative damages is reversed.

REVERSED.

McNULTY, J., and FOGLE, HARRY W., Associate Judge, concur.

      . Section 10 of the declaration of condominium deals broadly with use restrictions. Subsection 10.6 states,
      “Minors above the age of twelve years are permitted to occupy the premises. Such minors shall be closely supervised and care taken to insure that they do not become a nuisance to other residents. Minors under the age of twelve years are entitled to visit and temporarily occupy the premises for nonconsecutive periods of fifteen days during the summer and winter seasons. For the purposes of this provision, the summer will be defined as that period from May 1 through August 31 of each year, and the winter shall be defined as that period from September 1 through April 30 of each year.”

      .Section 11 of the declaration defines comprehensively the procedures for association approval of all transfers of interests in the condominium complex. Subsection 11.2(a)(1) requires an apartment owner who wishes to sell his apartment to provide notice of such intent along with the address and such other information regarding the prospective purchaser as may be required. The subsection also provides,
      “Such notice at the apartment owner’s option may include a demand by the apartment owner that the association furnish a purchaser of the apartment if the proposed purchaser is not approved; and if such demand is made the notice shall be accompanied by an executed copy of the proposed contract to sell.”
      The application and sales agreement forwarded by the realtor on behalf of the plaintiffs and Garvin on July 24 contained no demand that the association provide a purchaser nor did the materials have attached an executed copy of the proposed sales contract. Plaintiffs, nevertheless, assert that subsection 11.3 applies. That subsection, which deals with disapproval by the association, reads in part,
      “a. Sale. If the proposed transaction is a sale and if notice of sale given by the apartment owner shall so demand, then within 30 days after receipt of such notice and information the association shall deliver or mail by certified mail to the apartment owner an agreement to purchase the apartment concerned by a purchaser approved by the association who will purchase and to who the apartment owner must sell the apartment upon the following terms.
      “(5) If the association shall fail to provide a purchaser upon demand of the apartment owner in the manner provided, or if a purchaser furnished by the association shall default in his agreement to purchase, then notwithstanding the disapproval the proposed transaction shall be deemed to have been approved as elsewhere provided, which shall be recorded in the public records of Collier County, Florida, at the expense of the purchaser.”

      . § 711.01 et seq., Fla.Stat. (1963).

      . § 711.08(2), Fla.Stat. (1963). The allowance of reasonable restrictions on use and occupancy is carried over in the new condominium act, § 718.104(5), Fla.Stat. (Supp.1976). In fact, cases prior to the adoption of the new condominium act recognized restraints on use in the condominium environment. See, e. g., Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975) (alcoholic beverages prohibited in clubhouse and adjacent areas). While age restrictions in condominium documents ''ave not been specifically tested in our courts, there is reason to believe that their validity will be measured from the standpoint of reasonableness. Hidden Harbour Estates, Inc., supra. For more extensive treatment on age restrictions see Annot., 68 A.L.R.3d 1239 (1976).

      . See note 2, supra.


text:
    CITY OF MIAMI, Appellant, v. Richard P. BRINKER, Clerk of the Circuit Court, et al., Appellees.
    No. 76-158.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    George F. Knox, Jr., City Atty., and S. R. Sterbenz, Asst. City Atty., for appellant.
    Stuart Simon, County Atty., and Robert L. Krawcheck, Asst. County Atty., for ap-pellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

The City of Miami appeals a summary final judgment in favor of the clerk of the circuit court and the board of county commissioners based upon' the finding that the City’s demolition lien is not a special assessment lien and, therefore, is not payable from the proceeds of the sale of a tax deed.

In October 1973 Sidney Pasternak and William Asher filed a complaint against the City of Miami to quiet title to the subject property by declaring null and void the City’s claim to a demolition lien. Plaintiffs claimed title by virtue of a November 2, 1971 tax deed from Dade County sold pursuant to the provisions of Chapter 197 of the Florida Statutes (1971). In January 1974 the City answered and filed a third-party complaint against appellees Richard Brinker, clerk of the circuit court, and the Dade County Board of Commissioners on the grounds that its demolition lien was entitled to payment out of the excess proceeds of the November 1971 sale of the tax deed pursuant to Section 197.291(2), Florida Statutes (1972) in that a $3,000 surplus from the proceeds of the sale was transferred to the board of county commissioners on March 19, 1973 pursuant to the above statute. Subsequently, in April 1974 a final summary judgment was entered quieting title in plaintiffs; but still remaining unresolved was the City’s claim of lien against appellees. The appellees answered and asserted as a defense, as of the date of the sale of the tax deed, November 2, 1971, Section 197.291(2) had not been enacted and its predecessor effective at the time, Section 197.535, Florida Statutes (1971), provided that excess monies from a tax deed sale be disbursed to municipalities “holding liens for general taxes of equal dignity with county taxes upon said property”. The City’s demolition lien is not such a lien for general taxes. Following pretrial discovery, the City moved for summary judgment which was denied. Summary judgment was entered for appellees on the findings that Section 197.535, Florida Statutes (1971) is controlling and the City’s demolition lien is not a special assessment lien and consequently not payable from the proceeds of the sale of the tax deed. The City of Miami appeals. We affirm.

First, municipalities have no inherent power to levy special assessments and before special assessments may become valid, they must be made pursuant to the method prescribed by the legislature. City of Coral Gables v. Coral Gables, Inc., 119 Fla. 30, 160 So. 476 (1935); Snell Isle Homes, Inc. v. City of St. Petersburg, 199 So.2d 525 (Fla.2d DCA 1967). The City’s demolition lien is based on Chapter 24314, Laws of Florida (1947) which does not contain a provision for a demolition lien to rise to the status of a special assessment lien.

Second, Section 197.535, Florida Statutes (1971) is the controlling statute and the City’s contention that the later statutes are applicable is contrary to the well established law that a statute is not to be given retrospective effect unless the terms show clearly that such an effect was intended. See Florida East Coast Railway Company v. City of Miami, 299 So.2d 152 (Fla.3d DCA 1974).

Affirmed.


text:
    Nera MIMS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-449.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.

      Pollack, Tunkey, Robbins & Leen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Nera Mims seeks reversal of her conviction for robbery and sentence to 15 years in the state penitentiary.

The victim, Ms. Fuller, was forced into a car by Mims and driven to a deserted area where Mims grabbed Ms. Fuller’s pocketbook. Upon resisting, Ms. Fuller was beaten and pushed out of the car.

For her first point on appeal, Mims argues that the evidence was insufficient to support a conviction of robbery because the larceny took place sufficiently previous to the assault and battery to remove the incident from the penumbra of a robbery charge.

Although purse snatching is not robbery if no more force or violence is used than necessary to physically remove the property from a person who does not resist, if the victim does resist in any degree and this resistance is overcome by the physical force of the perpetrator, the crime of robbery is complete. Adams v. State, 295 So.2d 114, 116 (Fla. 2d DCA 1974). Thus, this point lacks merit.

Mims secondly contends the court erred in refusing to instruct the jury on the crime of assault and battery. We cannot agree.

The information charged a single offense of robbery and in the absence of any allegation contained therein that Mims struck the victim, the trial judge was eminently correct in refusing to instruct the jury on the crime of assault and battery as a lesser included offense of robbery. See State v. Wilson, 276 So.2d 45 (Fla.1973); Stephens v. State, 279 So.2d 331 (Fla. 2d DCA 1973).

Affirmed.


text:
    B. S. ENTERPRISES, INC., Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, and Board of County Commissioners of Metropolitan Dade County, Florida, Appellees.
    No. 76-624.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    Greenberg, Traurig, Hoffman, Lipoff & Quentel and Alan T. Dimond, Miami, for appellant.
    Stuart Simon, County Atty., and Stanley B. Price, Asst. County Atty., for appellees.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

B. S. Enterprises, Inc., appeals a judgment in the circuit court denying its petition for writ of certiorari, which sought quashal of a zoning resolution of the Dade County Board of County Commissioners denying a petition of B. S. Enterprises, Inc., for a “special exception” for additional construction upon a non-conforming use.

The circuit court’s denial of the petition for writ of certiorari has not been shown to be a departure from the essential requirements of law and the judgment of the circuit court is affirmed. The Board of County Commissioners acting under the zoning regulations had the responsibility of determining whether the granting of the special exception would adversely affect the public interest. Cf. Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478 (Fla. 4th DCA 1975). See also Veal v. Leimkuehler, 249 S.W.2d 491 (Mo.App.1952); Carroll Construction Company v. Kansas City, 278 S.W.2d 817 (Mo.App.1955); and Dunbar v. Board of Zoning Adjustment, 387 S.W.2d 164 (Mo.App.1965).

Affirmed.