author: KEHOE, Judge.

text:
    Wilbur M. SNIDER, Appellant, v. Evelyn SNIDER, Appellee.
    Nos. 78-1566, 78-2112.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Rehearing Denied July 5, 1979.

      Heller & Kaplan, Miami, for appellant.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Robert L. Floyd, Miami, for appellee.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, respondent below, brings these consolidated appeals from a final judgment of dissolution of marriage. We affirm in part and reverse in part.

By this appeal, appellant primarily challenges the trial court’s denial of his counterclaim for a special equity in two notes and mortgages having an approximate value of $2,000,000 at the time of trial. The relevant portion of appellee’s petition for dissolution of marriage in regard to these assets reads as follows:

“8. . . The parties further jointly own certain property consisting of mortgages, the payments on principal and interest of which have been retained by the Respondent solely, and the Respondent has failed and refused to account to the Petitioner for the monies derived therefrom. ...”

The relevant portion of appellant’s answer and counterclaim reads as follows:

“7. With regard to said notes and mortgages . . . described in the complaint, all the consideration was furnished by the respondent, and he is thereby entitled to the entire interest therein as a special equity.”

In her reply to the counterclaim, appellee denied the allegations of this paragraph.

After a non-jury trial and upon the evidence presented, the trial court made the following findings of fact and conclusions of law:

“The parties were married to each other on December 31,1957, and there are no children born of this marriage. At the time of the marriage, the Wife was a successful business woman. The Husband was not employed, but realized income from a family trust.
“During the approximate twenty (20) years of the marriage, the Wife owned and operated a very successful ladies apparel shop, which became bankrupt in 1977. Until that time, she contributed her earnings toward the family expenses, which enabled the Husband to pursue a career in real estate investments. The Wife encouraged these endeavors. She introduced her husband to several persons, including his partner, Fritch, which led to the real estate investments, which were all very successful ventures of the Husband. These ventures included the construction of the Beekman Towers and Mayfair Towers on Miami Beach.
“When certain of these properties were sold, the Husband caused the promissory notes and purchase money mortgages to be held in joint names with his Wife, to-wit: the purchase money notes and mortgages on the Manhattan Towers and the Beekman Towers. The Husband now claims this was done solely for survivor-ship purposes, and, as further support of this position, emphasizes that no gift tax return had been filed. The Court does not believe that the sole purpose of the conveyance in the notes and mortgages in the joint names was for survivorship purposes only; nor does the Court believe that the Husband’s net worth which was listed at various times at an excess of Five Million Dollars was only a little over One Million Dollars prior to the trial.
“It is the finding of the Court that the Wife contributed to the creation of these notes and mortgages, and that the Husband intended to award her efforts by a gift.
“During the marriage, the parties enjoyed a fine very high standard of living. They occupied a large luxurious apartment under a long-term lease, they owned expensive furniture and furnishings, owned yachts and Rolls Royce automobiles.
“At the present time, the Wife is 64 years of age, without substantial assets, has had to borrow monies ($30,000 from the City National Bank, and $25,475.00 in personal loans) for her support. The Husband has substantial assets, and is well able to maintain her in the standard which they enjoyed during the marriage.
“IT IS THEREFORE, ORDERED AND ADJUDGED AS FOLLOWS:
“1. The bonds of marriage between Petitioner, EVELYN SNIDER, and Respondent, WILBUR M. SNIDER, are dissolved because the marriage is irretrievably broken.
“2. The Husband’s claim for a special equity in and to the promissory note and mortgage (dated December 1, 1969) made by Joseph Sorota, as Trustee, to Wilbur M. Snider and Evelyn Snider, and to the promissory note and mortgage (dated April 30,1970) made by Julius Perlbinder, as Trustee, to Wilbur M. Snider and Evelyn Snider, is denied.
“3. The Petitioner is entitled to a one-half interest in each of the two purchase money notes and mortgages referred to in Paragraph 2 hereof, and the Respondent/Husband is hereby ordered and directed to execute any and all documents necessary to accomplish the record ownership of the interest of the wife.
“4. The Husband is ordered to account to the Wife for all payments received by him since their separation on the promissory notes and mortgages referred to in Paragraph 2 hereof, and pay unto the Wife one-half (V2) of said monies.
“5. The Wife, EVELYN SNIDER, is hereby awarded possession of the marital residence.
“6. The Wife is granted as partial lump-sum alimony, all of the furniture and furnishings contained in said apartment.
“7. The Husband is ordered to pay unto the Wife, as periodic alimony, the rent payable on the lease for the marital residence, and the additional sum of One Thousand Five Hundred Dollars ($1,500.00) per month.
“8. This Court reserves jurisdiction to determine the award of attorneys’ fees and costs, and to enforce the terms of this Final Judgment.”

As shown by the relevant portions of the pleadings set forth above, appellant attempted to establish that he had a special equity in the notes and mortgages held as tenants by the entireties which should have given him the entire interest in these assets. The Supreme Court of Florida in Ball v. Ball, 335 So.2d 5 (Fla.1976), stated, inter alia, as follows:

“ . . . in the marriage dissolution proceedings as to why one should be awarded more than an equal proportion of real property held as tenants by the entireties, record title speaks for itself.”
* * * * * *
“The premise that record title bespeaks an equal division is, of course, only the starting point for a property division. Either spouse has the right to attempt to establish a ‘special equity’ in the realty by reason of his or her extraordinary contribution toward its acquisition, either financially or through personal industry and service to the other party. [Footnote omitted.] The other party, of course, can negate the attempted showing or affirmatively attempt to show a gift was intended. [Footnote omitted.] We are not now called upon to determine the range of circumstances which might create a special equity. Consistent with prior de-cisional law, however, we hold that a special equity is created by an unrebutted showing, . . that all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship. [Footnote omitted.] In these cases the property should be awarded to that spouse, as if the tenancy were created solely for survivorship purposes during coverture, in the absence of contradictory evidence that a gift was intended.” Id. at 7.

Applying these principles to the instant case, we start out with the basic premise that record title speaks for itself. Here, the subject property was held by the parties as tenants by the entireties which form of ownership was converted by law, at the time of the dissolution of the marriage, to a tenancy in common. Pursuant to Ball, if we could stop at this point, the property should be equally divided between the parties. However, here, appellant by way of his counterclaim attempted to establish a special equity in the entire subject property. If appellant had made an unrebutted showing that all of the consideration for the subject property had been supplied by him from a source clearly unconnected with the marital relationship, at this point, he could have established a special equity. However, the trial court specifically found, among other things, that not only did appel-lee contribute to the creation of the notes and mortgages, but that appellant intended to make a gift to appellee of a one-half interest in the property. The trial court further found that the tenancy by the entir-eties was not created, as contended by appellant, for survivorship purposes. These findings both negated appellant’s attempted showing of a special equity and established instead that a gift had been made. Pursuant to these findings, and others, the trial court found that appellant was not entitled to a special equity.. Without more, at this point, we would agree with the trial court’s findings; however, upon review, it is our duty to ascertain from reviewing the record whether these findings were supported by competent substantial evidence. After careful scrutiny of the record in this cause, but for the principles set forth in, e. g., Herzog v. Herzog, 346 So.2d 56 (Fla.1977), and Shaw v. Shaw, 334 So.2d 13 (Fla.1976), i. e., prohibiting us from substituting our judgment for that of the trial court, we might have reached a different conclusion based upon the evidence adduced. However, we believe that the trial court’s findings were predicated upon at least that minimal amount of evidence sufficient to evoke the principles set forth, e. g., in Herzog and Shaw. Accordingly, we are constrained to affirm that portion of the trial court’s final judgment of dissolution of marriage finding appellant had no special equity in the subject property.

In regard to appellant’s collateral point on appeal, i. e., the trial court abused its discretion by awarding alimony to appel-lee in the amount of $1500 per month permanent alimony, we must respectfully disagree with the trial court. In our opinion, based upon the facts in this case, the trial court erred in awarding such alimony to appellee because the record fails to show any basis for the award. See Kennedy v. Kennedy, 303 So.2d 629 (Fla.1974); and § 61.08, Fla.Stat. (1977).

For the reasons set forth above, the final judgment of dissolution of marriage appealed is affirmed except that portion of the judgment which awards appellee permanent alimony in the amount of $1500 per month is reversed.

Affirmed in part, reversed in part.

      . Although Ball addressed itself only to real property, we do not believe that the type of property, i. e., real or personal, involved should change the legal principles set forth therein.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Pasquale ESPOSITO, Rose Esposito, Greyhound Lines, Inc. and School Board of Dade County, a political subdivision of Dade County, Florida, Appellants, v. ABC PRODUCTS MANUFACTURING CORPORATION and William Kramer, Appellees.
    Nos. 78-1670, 78-1856.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Rehearing Denied July 5, 1979.
    William M. Alper, Preddy, Kutner & Hardy, Greene & Cooper, Walton, Lantaff, Schroeder & Carson, Miami, for appellants.
    Knight, Peters, Pickle, Niemoeller & Flynn and John E. Salmon, Miami, for ap-pellees.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Rosen v. Parkway General Hospital, Inc,, 265 So.2d 93 (Fla.3d DCA 1972); Kwoke v. Campbell, 296 So.2d 629 (Fla.3d DCA 1974); Perotta v. Tri-State Ins. Co., 317 So.2d 104 (Fla.3d DCA 1975), and Brethauer v. Brassell, 347 So.2d 656 (Fla.4th DCA 1977).


text:
    William Augustus CLARK, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1794.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Rehearing Denied July 2, 1979.
    Engel, Aronson, Fried & Cohn and Don S. Cohn, Miami, for appellant.
    Jim Smith, Atty. Gen. and Susan C. Minor, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by defendant from a denial of his motion for post-conviction relief filed pursuant to CrPR 3.850. Defendant urges reversal on the ground that the trial court erred in denying defendant’s motion to withdraw plea of guilty to possession of heroin.

We have carefully considered all of defendant’s contentions in the light of the record, briefs and argument of counsel and have concluded that no reversible error has been demonstrated, Williams v. State, 316 So.2d 267 (Fla.1975); Bremser v. State, 322 So.2d 642 (Fla.3d DCA 1975).

Affirmed.


author: SCHWARTZ, Judge.

text:
    Sylvia HOFFMAN, Appellant, v. Gerald M. HOFFMAN, Appellee.
    No. 78-1918.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Rehearing Denied July 5, 1979.
    Morton R. Goudiss, Miami Beach, for appellant.
    Mitchell M. Goldman, Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

In a final judgment of dissolution entered on March 29,1973, the court provided for an award of child support of $300.00 per month for each of the parties’ three children which “shall continue until each child is emancipated, or self-supporting.” Over five years later, in the order which is now under review, a successor judge determined that the support required by the judgment for the oldest child terminated when she reached the age of 18. This was error.

In Manganiello v. Manganiello, 359 So.2d 26 (Fla. 3d DCA 1978), this court clearly established the law to the contrary of the determination below. At 359 So.2d 27-28, it was held:

“The law is well-settled that a divorce decree entered prior to July 1, 1973, requiring a husband to make child support payments to his wife, either until majority or without specifying a termination date therein, obligates the husband on the face of the decree to make child support . payments until the child reaches his twenty-first birthday. The only method by which a husband may absolve himself of such obligation of support prior to the child reaching twenty-one is if he files a motion to modify under Section 61.14, Florida Statutes (1977), and is able to show that the child has since become married or self-supporting. This result is in no way changed by Section 743.07, Florida Statutes (1977), lowering the age of majority to eighteen because the statute by its express terms does not operate retroactively to alter or change child support awards made prior to July 1, 1973, the effective date of the statute. Finn v. Finn, 312 So.2d 726 (Fla.1975); Daugherty v. Daugherty, 308 So.2d 24 (Fla.1975); Adams v. Adams, 340 So.2d 1290 (Fla. 3d DCA 1977); Field v. Field, 291 So.2d 654 (Fla. 2d DCA 1974).” [emphasis supplied]

The husband-appellee points out that the final judgment involved in this case provided that support would cease when a child "is emancipated,” rather than, as in, for example, Daugherty v. Daugherty, 308 So.2d 24 (Fla.1975), when he or she attains “majority.” This argument is unsound. As the appellee concedes, the only basis for concluding that the child in question has become “emancipated” is that she has reached 18, the age of majority as provided by Sec. 743.07, Fla.Stat. (1977). Since, as the Manganiello decision makes clear, that statute specifically provides that it does not apply to pre-July 1, 1973 awards such as this one, it is obvious that the distinction drawn between the terminology employed in the various cases makes no legal difference whatever.

The order below is therefore reversed, and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

      . For this reason, there is no purpose for an evidentiary hearing on remand and we reject the husband’s suggestion that we order one. The obligation of support continues until 21 as a matter of law, unless the child becomes married, self-supporting or otherwise emancipated before then.


text:
    Charity Ann MURVIN, Appellant, v. STATE of Florida, Appellee.
    No. LL-34.
    District Court of Appeal of Florida, First District.
    June 5, 1979.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Lee Mandell, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant appeals her final judgment and sentence for second degree murder, contending that the trial court erroneously allowed introduction of her inculpato-ry statement at a time when the corpus delicti of the crime had not yet been established by competent proof. We disagree, finding from our review of the record that the testimony of the state’s firearms expert adequately indicated that the death of appellant’s husband had occurred through the criminal agency of another. See State v. Allen, 335 So.2d 823 (Fla.1976). Similarly, we reject appellant’s contention that she was entitled to a judgment of acquittal at the close of the state’s case in view of the circumstantial evidence suggesting a criminal act and the conflicting statements made by appellant regarding her participation in the shooting. The remaining point — that the court erred in allowing a state witness to answer a question about appellant’s character — is without merit since the character and personality traits of appellant had been placed into issue by her counsel’s earlier cross-examination of a state witness.

AFFIRMED.

MILLS, Acting C. J., and ROBERT P. SMITH and LARRY G. SMITH, JJ., concur.


author: HUBBART, Judge.

text:
    Florentino RAMIREZ, Nelson Gonzalez, Marquez Jesus Cruz, Julio Herrera and Julian Perez, Appellants, v. The STATE of Florida, Appellee.
    Nos. 77-2417 to 77-2421.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Rehearing Denied July 5, 1979.

      Pollack, Spain & O’Donnell, John H. Li-pinski, Miami, for appellants.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   HUBBART, Judge.

The defendants, Florentino Ramirez, Nelson Gonzalez, Marquez Cruz, Julio Herrera and Julian Perez appeal their criminal convictions for (1) conspiracy to unlawfully possess over one hundred pounds of marijuana, and (2) unlawful possession of over one hundred pounds of marijuana.

The central issue presented for review is whether the defendants were entitled to a judgment of acquittal upon their proper motion in the trial court. On this issue, we reverse as to all defendants on the conspiracy convictions; on the same issue, we reverse as to the defendant Gonzalez and affirm as to all other defendants on the possession of marijuana convictions.

The facts relevant to the central issue herein are as follows. On March 2, 1977, in the evening hours law enforcement officers observed four boats running without lights and apparently riding low in the water near the seawall off Cape Florida heading west into Biseayne Bay in Dade County, Florida. The police observed three men throwing bales of what was later established to be marijuana overboard while a fourth person operated the boat. Shortly thereafter, the defendants Cruz, Herrera and Perez were apprehended aboard this boat and the marijuana retrieved from the water. The other three boats, each containing a large quantity of marijuana, were discovered aground off Snapper Creek a short distance away. In all, approximately nine and a half tons of marijuana was seized by the police in this case.

Police officers searched the residential area adjacent to where the boats were found. They eventually spotted the defendant Ramirez, the defendant Gonzalez and a third man walking down the street in the area. The officers identified themselves as police and ordered the men to stop. The three men fled, the police officers pursued, and the defendant Ramirez was apprehended. Shortly thereafter, the defendant Ramirez gave an incriminating statement to the police linking him to one of the boats which had been carrying the marijuana herein. Also a fingerprint of the defendant Ramirez was found on a cigarette box in one of the three boats which had gone aground. Later, the defendant Gonzalez was apprehended in the area.

The defendants were charged by information in the Circuit Court for the Eleventh Judicial Circuit of Florida with: (1) conspiracy to unlawfully possess over one hundred pounds of marijuana [§ 777.04(3), Fla.Stat. (1977)], (2) unlawful possession of over one hundred pounds of marijuana [§ 893.13(l)(a) 2, Fla.Stat. (1977)], and (3) importation of marijuana [§ 893.13(l)(d), Fla.Stat. (1977)]. The defendants were tried by a jury upon their pleas of not guilty at which the state established the above-stated facts. Upon proper motion, the trial court granted the defendants’ motion for judgment of acquittal as to count III of the information, but denied the motion as to counts I and II of the information. The jury convicted the defendants on count I and II of the information. The trial court imposed various sentences upon the defendants thereafter. This appeal follows.

I

We are first confronted with the issue of whether the evidence was sufficient to support the defendants’ convictions for conspiracy. The law is well-settled that the crime of conspiracy consists of an express or implied agreement between two or more persons to commit a criminal offense. Both an agreement and an intention to commit an offense are necessary elements of this crime. King v. State, 104 So.2d 730 (Fla.1958); § 777.04(3), Fla.Stat. (1977); 6 Fla. Jur.2d “Conspiracy” § 5 (1956).

Conspiracy is a separate and distinct crime from the offense which is the object of the conspiracy. Swindle v. State, 254 So.2d 811 (Fla. 2d DCA 1971); Sheldon v. State, 178 So.2d 34 (Fla. 3d DCA 1965). Moreover, conspiracy is one step removed from an attempt to commit the offense which is the object of the conspiracy, and, thus, is two steps removed from the actual commission of the substantive offense. Hutchinson v. State, 315 So.2d 546, 549 (Fla. 2d DCA 1975). As such, evidence that a person aided and abetted another in the commission of an offense, although sufficient to convict the person as a principal in such offense under Section 777.011, Florida Statutes (1977), is insufficient to convict either person of a conspiracy to commit the subject offense. Little v. State, 293 So.2d 775 (Fla. 2d DCA 1974).

In the instant case, we find no evidence in the record which establishes that the defendants committed the crime of conspiracy. It is true, as the state contends, that the defendants Cruz, Herrera and Perez were aiding and abetting one another in committing the offense which was the object of the alleged conspiracy, to wit: unlawful possession of over one hundred pounds of marijuana. It is also true, as the state contends, that the defendant Ramirez was equally implicated in the commission of the substantive offense. Under the law, however, these acts standing alone do not constitute the crime of conspiracy to commit such offense, which conspiracy is a separate crime two prior steps removed in time from the substantive offense. Moreover, the evidence against the defendant Gonzalez is insufficient to link him to either the substantive offense or the conspiracy charge. As such, the conspiracy convictions as to all defendants must be reversed.

We are supported in this result by a recent decision of the Florida Supreme Court in Goldberg v. State, 351 So.2d 332 (Fla.1977). In that case, the Court spoke to the dangers which lurk in the criminal charge of conspiracy and the duty of the courts to eliminate or at least minimize these dangers. One of the dangers cited by the Court is the tendency to make the crime so elastic, sprawling and pervasive as to defy meaningful definition. It is to avoid just such a danger that we today decline to expand the crime of conspiracy to embrace, contrary to law, the acts of two or more persons who aid and abet one another in the commission of a substantive offense. To do so would be to blur the demarcation line between a conspiracy to commit an offense and the substantive offense which is the object of the conspiracy, thereby lending unnecessary confusion to the crime of conspiracy contrary to the teaching of Goldberg. Such acts. of aiding and abetting clearly make each actor a principal in the substantive offense under Section 777.011, Florida Statutes (1977), but cannot, without more, also make each actor a principal in the crime of conspiracy to commit such offense under Section 777.04(3), Florida Statutes (1977).

II

We turn now to the question of whether the state’s evidence was sufficient to withstand a motion for judgment of acquittal on the charge of unlawful possession of over one hundred pounds of marijuana. We have no difficulty whatever in sustaining the conviction on this charge as to the defendants Perez, Herrera and Cruz. Indeed, the defendants herein make no serious contention to the contrary. These defendants were caught aiding and abetting one another in the possession of over one hundred pounds of marijuana and clearly showed guilty knowledge thereof by attempting to discard some of the marijuana when discovered by the police. Moreover, we think the evidence is more than sufficient to link the defendant Ramirez to this offense in that he, by his own statement, implicated himself in such offense and left a fingerprint in one of the boats which was used in the commission thereof. As such, the convictions for such crime as to the above defendants must be affirmed. State v. Eckroth, 238 So.2d 75 (Fla.1970).

The evidence against the defendant Gonzalez, however, is insufficient to convict him of the crime of unlawful possession of over one hundred pounds of marijuana. The only evidence against him was that he ran from the police when ordered to halt in the general area in which the marijuana was discovered. Beyond that, there is no evidence which links him to the crime. We find that such evidence of flight was wholly insufficient to withstand the defendant Gonzalez’ motion for judgment of acquittal as to this charge. As such, the conviction of the defendant Gonzalez for the subject crime must be reversed. Morgan v. State, 355 So.2d 149 (Fla. 1st DCA 1978).

Ill

We have carefully considered the other contentions raised by the defendants upon this appeal and find them to be without merit. Accordingly, the conspiracy convictions herein are reversed as to all defendants and the cause remanded to the trial court with directions to discharge all defendants from the cause as to such conspiracy charge. The conviction as to the defendant Gonzalez on the crime of unlawful possession of over one hundred pounds of marijuana is reversed and the cause remanded to the trial court with directions to discharge the defendant Gonzalez from the cause. The convictions as to the defendants Ramirez, Cruz, Herrera and Perez on the crime of unlawful possession of over one hundred pounds of marijuana are affirmed.

Affirmed in part; reversed in part.


text:
    Blas Jesus CORBO, Appellant, v. The MIAMI DAILY NEWS, INC., and Hilda Inclan, Appellees.
    No. 78-1346.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Rehearing Denied July 5, 1979.

      Nathan Kurtz, Miami, for appellant.
    Joseph P. Averill, Miami, for appellees.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The complaint, which alleges libel, is fatally defective in that the plaintiff has failed to allege compliance with Section 770.01, Florida Statutes (1977). See Hevey v. News-Journal Corporation, 148 So.2d 543 (Fla. 1st DCA 1963). Nevertheless, the trial court allowed discovery and, thereafter, entered a summary final judgment for the defendants. The. discovery fully supported the judgment because no genuine issue of material fact appears from the plaintiff’s admissions that he had no.proof of actual malice. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). See also State ex rel. Miami Herald Publishing Company v. McIntosh, 340 So.2d 904 (Fla.1977); and Ross v. Gore, 48 So.2d 412 (Fla.1950).

Affirmed.


text:
    SOUTH MIAMI HOSPITAL FOUNDATION, INC., Appellant, v. DADE COUNTY, a Political Subdivision of the State of Florida, Appellee.
    No. 78-1449.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Rehearing Denied July 5, 1979.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellant.
    Stuart L. Simon, County Atty., and Murray A. Greenberg, Asst. County Atty., for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Reversed and remanded with directions to grant a new trial. We find that the trial court erred by allowing the jury to consider the effect of a zoned right-of-way on the value of the property taken in an eminent domain proceeding. Dade County v. Still, 370 So.2d 64 (Fla.3d DCA 1979).

Based upon our decision on appellant’s first point, we need not reach the remaining points in this opinion.

Reversed and remanded with directions.


text:
    Robert Frederick ADAMS, Appellant, v. Darlene Rose ADAMS, Appellee.
    No. 78-1573.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Rehearing Denied July 5, 1979.
    Robert C. Eber, Miami, for appellant.
    George E. Barket; Richard M. Gale, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13, 16-17 (Fla.1976); Caidin v. Caidin, 367 So.2d 248 (Fla.3d DCA 1979); Koeppel v. Koeppel, 351 So.2d 766 (Fla.3d.DCA 1977); Pfohl v. Pfohl, 345 So.2d 371, 375, 378 (Fla.3d DCA 1977); Cann v. Cann, 334 So.2d 325, 328 (Fla. 1st DCA 1976); Linares v. Linares, 292 So.2d 63 (Fla.3d DCA 1974). See and compare; Meridith v. Meridith, 366 So.2d 425 (Fla.1978); Cummings v. Cummings, 330 So.2d 134 (Fla.1976); Fraser v. Fraser, 368 So.2d 97 (Fla.3d DCA 1979).


author: BARKDULL, Judge.

text:
    Arlene OSTERYOUNG and Lloyd Osteryoung, Appellants, v. Karen LEIBOWITZ and Burton Leibowitz, Appellees.
    No. 78-1911.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Rehearing Denied July 5, 1979.
    Engel, Aronson, Fried .& Cohen and Robert C. Hill, Miami, for appellants.
    Pallot, Stern & Pollack, Miami, for appel-lees.

      Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Judge.

Arlene Osteryoung and Lloyd Osteryoung appeal from an order dismissing their cause of action with prejudice.

The appellants are the grandparents of the minor child of the respondents, Karen and Burton Leibowitz. They filed an independent action requesting that the trial court award them visitation rights to the minor child, and contending that they were arbitrarily deprived of these visitation rights because of the personal animosity of the respondents. They contended that an independent civil action by grandparents to achieve visitation rights to their grandchildren was now authorized by Chapter 78-5, Laws of Florida (1978), which provides as follows:

“The Court shall award custody and visitation rights of minor children of the parties as a part of proceedings of dissolution of marriage in accordance with the best interests of the child and in accordance with the Uniform Custody Jurisdiction Act. Upon considering all relevant factors, the father of the child shall be given the same consideration as the mother in determining custody. The Court may award the grandparents visitation rights of minor children if it is deemed by the court to be in the child’s best interest. Nothing in this Section shall be construed to require that grandparents be made parties or given notice of dissolution pleadings or proceedings, nor shall such grandparents have legal standing as ‘contestants’ as defined in s. 61.1306, Florida Statutes. No court shall order that a child be kept within the state or jurisdiction of the court solely for the purpose of permitting visitation for the grandparents.” [emphasis added]

This section is codified Section 61.13(2)(b), Florida Statutes (1978).

We affirm the action of the trial court. Prior to the enactment of Chapter 78-5, supra, grandparents had no right to custody of children. State v. Reeves, 97 So.2d 18 (Fla.1957); Besade v. Besade, 312 So.2d 484 (Fla. 3d DCA 1975). All the statute authorized was a granting of visitation rights to grandparents in the best interests of the children in the event of a dissolution proceeding. There is no dissolution proceeding pending between the Leibowitz’ which would bring this statute into play.

Therefore, the final judgment under review be and the same is hereby affirmed.

Affirmed.


text:
    OTX, INC., a Nevada Corporation, Appellant, v. CIBY-GEIGY CORPORATION, a New York Corporation, Appellee.
    No. 78-2038.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Rehearing Denied July 5, 1979.
    Dubbin, Schiff, Berkman & Dubbin and Evan Langbein, Miami, for appellant.
    Mershon, Sawyer, Johnston, Dunwody & Cole and H. Michael Madsen, Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Friedman v. Virginia Metal Products Corp., 56 So.2d 515 (Fla.1952); Knight v. H. S. Equities, Inc., 280 So.2d 456 (Fla. 4th DCA 1973); G & N Construction Co. v. Kirpatovsky, 181 So.2d 664 (Fla. 3d DCA 1966); see Damora v. Stresscon Inter national, Inc., 324 So.2d 80 (Fla.1975); Fenster v. Makovsky, 67 So.2d 427 (Fla.1953).


text:
    NATIONAL COMMITTEE FOR LABOR ISRAEL, INC., a New York Corp., a/k/a Histadrut, Appellant, v. Harry MANN, as Personal Representative of the Estate of Sophie Dickstein, Deceased, Appellee.
    No. 78-2226.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Rehearing Denied July 5, 1979.
    Smith, Mandler, Smith, Werner, Jacobow-itz & Fried and Julian R. Benjamin, Miami Beach, for appellant.
    Heiman, Krieger, Freidin & Silber and Paul Morris, Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed on the authority of Mount Sinai Hospital of Greater Miami, Inc., v. Jordan, 290 So.2d 484 (Fla.1974), affirming, 276 So.2d 102 (Fla.3d DCA 1973).


text:
    Melvin McKENZIE, Appellant, v. The STATE of Florida, Appellee.
    No. 79-813.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Rehearing Denied July 2, 1979.
    Melvin McKenzie, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and KEHOE, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: MELVIN, Judge.

text:
    Mahmood MOHAMMAD, Appellant, v. Shahla Mahvis MOHAMMAD, Appellee.
    No. EE-235.
    District Court of Appeal of Florida, First District.
    June 6, 1979.

      Jean Laramore, Tallahassee, for appellant.
    J. Klein Wigginton of McClure, Wiggin-ton, Campbell & Owen, Tallahassee, for ap-pellee.
   MELVIN, Judge.

Upon initial consideration of the appeal from the final judgment entered in this cause, this court remanded the cause to the trial court to resolve three issues, to wit: 1) the issue of the custody of the children; 2) the enforceability of the Iranian antenup-tial agreement; and 3) the fixing of attorney’s fees incident to thd appeal. Mohammad v. Mohammad, 358 So.2d 610 at 613 (Fla.1st DCA 1978). Thereafter, the necessary hearing was completed. The trial proceedings and order of the trial court dated April 20,1979, is now properly before us for consideration. In the order the learned trial judge recited and adjudged:

“. . . Both parties were present through counsel and the Husband, Mah-mood Mohammad, was present in person. Counsel for the Husband announced to the Court that there no longer existed the issue of child custody as Husband, Mah-mood Mohammad, had abandoned his request that the children be awarded to him. Further, it was announced by Husband’s counsel that Husband, Mahmood Mohammad, no longer desired to pursue the validity and applicability of the Iranian Antenuptial Agreement and thus abandoned that demand and request. The issue of attorney’s fees to the Wife’s attorney was not agreed upon by the Husband and thus was left for resolution by the Court based upon the Affidavits in the file and testimony of counsel. The Court being otherwise advised in the premises does ORDER AND ADJUDGE:
1. The issue of child custody has been abandoned by Husband, Mahmood Mohammad, and thus the care, custody and control of the children of the parties shall remain in the Wife, Shahla Mahvis Mohammad.
2. The issue of the validity and applicability of the Iranian Antenuptial Agreement has been abandoned by Husband, Mahmood Mohammad, and is no longer an issue to be considered by the Court in its determination of alimony for the Wife.
3. Mahmood Mohammad shall pay to Wife’s attorney, Klein Wigginton, for his services incident to the appeal in the District Court of Appeal, First District, the sum of $5,800.00 on or before the 30th day of June, 1979, after which time let execution issue.

4. Wife’s Motion for Entry of an Order Modifying'the Final Judgment was withdrawn by her counsel from further consideration by the Court.

Appellant urges this court to reverse those provisions of the final judgment dated November 30, 1976, wherein lump sum alimony and periodic alimony were awarded to the appellee; that provision of the final judgment that directed the appellant to provide the appellee with an automobile; and that portion of the final judgment that directed the division of the joint savings account of the parties.

The question of the correctness of an order awarding permanent and/or periodic alimony is to be measured by the criteria of the need of the wife on the one hand and the ability of the husband to pay on the other. The appellant is a professional man of substantial wealth. Appellee has the need for and has only such income as is provided for her by the final judgment. Upon our review of this record, the appellant has failed to demonstrate reversible error; therefore, such provisions of the final judgment are affirmed. The remaining two questions that merit discussion are: 1) whether the lower court committed error by ordering the appellant to pay for his two children’s college education, and 2) whether the lower court erred in ordering the appellant to support each of his children until such child attains the age of 21 years, marries, or becomes self-supporting.

We first consider the point as to appellant’s obligation to pay for his children’s college education. During the course of the proceedings, the trial judge requested the appellant and the appellee to submit alternative proposals concerning this and other questions. The record reflects that the appellant proposed to pay for his two children’s college expenses including books, tuition, room and board, supplies and fees for a period of four years. The trial court simply accepted the offer of the appellant and he may not now be heard to urge that the court erred in doing so. If such provision was error, then it was invited, induced by the appellant and he may not be heard to complain here. He will not be permitted to gather fruit out of season in a garden of equity. See Gagnon v. State, 212 So.2d 337 (Fla.3d DCA 1968); .2 Fla.Jur. Appeals, Section 313, page 670 (1963).

We indulge the hope that when each child qualifies for college acceptance, the father and child will at the family forum determine, in the light of then existing economic conditions, what amount of money would be reasonable for the child’s support. If such may not be so determined, it will then be concluded in the judicial forum.

The remaining point mandates, a modification. The age limitation beyond which, absent a finding of dependency, a parent may not be required to support his or her child is that of 18 years, or such less time as within which the child becomes self-supporting or is married. That issue was determined by this court in Dwyer v. Dwyer, 327 So.2d 74 (Fla.1st DCA 1976). Dwyer does not collide with the opinion of our Supreme Court in Finn v. Finn, 312 So.2d 726 (Fla.1975). It follows that the provision in the final judgment appealed from that requires parental support of each child until such child attains the age of 21 years is modified to read 18 years. Subject to the limitations set forth in Dwyer, unless plaintiff’s child is eligible for and in good faith seeks a college education as discussed, point one above, the child will no longer enjoy entitlement to parental support.

The final judgment entered herein dated November 30, 1976, as herein modified, and the judgment of the trial court dated April 20, 1979, each is AFFIRMED.

McCORD, C. J., and LARRY G. SMITH, J., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    James ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-884.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1979.
    Richard L. Jorandby, Public Defender, and John M. Conway, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

The appellant was convicted of grand larceny. The only defense attempted to be offered was by the testimony of an expert witness that the market value of the goods in question was less than $100.00. The trial court had previously granted the motion of the appellant to appoint an expert to appraise the value of the goods stolen. However, at trial the court refused to allow the expert to testify. I think this was reversible error.


text:
    Lester E. DONALDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1502.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Appellant was adjudicated guilty and sentenced to a term of ten years in the state penitentiary for the crime of sexual battery by use of force not likely to cause serious personal harm, in violation of Section 794.011(5) Florida Statutes (1974).

The sole point on appeal is whether the trial court erred in refusing to certify the defendant as a mentally disordered sex offender pursuant to Section 917, Florida Statutes (1977).

The record reflects that appellant was evaluated by a psychiatrist who testified that appellant demonstrates “a history of psychosexual disturbance and exhibits disturbed ■ behavior which has existed for a period of several years” and that he “could benefit by psychotherapeutic approaches and could fulfill the criteria of the mentally disturbed sex offender.”

From our consideration of the record, we have concluded that the trial court abused its discretion in refusing to certify appellant as a mentally disturbed sex offender pursuant to Section 917 Florida Statutes. Hendricks v. State, 360 So.2d 1119 (Fla. 3d DCA 1978).

Accordingly, the sentence imposed herein is hereby vacated and the cause is remanded to the trial court with directions to conduct the requisite hearing pursuant to Section 917 to determine whether or not appellant is a mentally disordered sex offender. If he so qualifies the trial court must commit him to the Department of Health and Rehabilitive Services for care, treatment, and rehabilitation pursuant to the statute; if appellant is not found to qualify as a mentally disordered sex offender, he may then be properly sentenced in accordance with the applicable law.

The conviction is affirmed, but the sentence is vacated and the cause is remanded to trial court with directions. '


text:
    The STATE of Florida, Appellant, v. Veronica WILLIAMS, Appellee.
    No. 78-1718.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.

      Janet Reno, State’s Atty., and Ira N. Loewy, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Bruce Rosenthal, Asst. Public Defender, for appellee.
    Before HAYERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

This case, which is an appeal by the state from an order suppressing a firearm seized from the defendant-appellee, involves an interplay of the issues addressed in State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979) and Pennsylvania v. Mimms, 434 U.S. 106,98 S.Ct. 330, 54 L.Ed.2d 331 (1977). We hold that a “tip” to a police officer concerning the possible presence of a gun which did not contain sufficient “indicia of reliability” to support any greater restriction of a person’s liberty, did justify the “de minimus” intrusion involved in ordering a passenger out of an already stopped car. The order below, which was based upon the trial judge’s contrary conclusion, is therefore reversed.

Since the trial court granted the motion to suppress, the record must be viewed in the light most favorable to the successful movant, the defendant, with all conflicts in the evidence resolved in her favor. State v. Nova, 361 So.2d 411 (Fla.1978). Treated in that manner, the record demonstrates that on February 16,1978, Public Safety Department police officer James Ferrante responded to a disturbance call “possibly involving an automobile accident,” at 3063 N.W. 55th Street in Miami. When he arrived at the scene, Ferrante was approached by a man who was entirely unknown to him at the time, but who was later identified as Jerry Bridges. Bridges told Ferrante, “[m]y brother thought there was a gun in the car.” The officer thereupon approached the vehicle indicated by Bridges, which was stationary at the side of the street, and ordered the three or four occupants of the vehicle to get out of the car. The appellee, Veronica Williams, who was seated in the rear, obeyed the officer’s command. As she exited the car, she began to walk hurriedly away from the officer, carrying a white sweater in front of her body, wrapped like a bundle. Ferrante ordered her to stop. When she turned around, he saw a black object which looked like the barrel of a gun wrapped underneath the sweater. He reached out, grabbed the sweater, and found a .32 automatic pistol. Williams was charged with carrying a concealed firearm. The defendant has not challenged, either in the trial court or in this one, the propriety of Fer-rante’s conduct after Williams emerged from the car; that is, in stopping her and seizing the weapon. She contends only that, because of the at best amorphous nature of the information given by Bridges to the officer, he was not justified in ordering her to leave the vehicle. In granting the motion to suppress the firearm, the trial judge agreed with this contention, but we do not.

The coexistence of two factors is responsible for this conclusion: (a) the action taken by the officer as a result of the information given him consisted only of an order to the occupants to get out of the car; and (b) that information, such as it was, concerned the possible presence of a gun. Two recent and extremely able decisions of our sibling courts for the second and fourth districts, State v. Hetland, supra, and Lachs v. State, 366 So.2d 1223 (Fla. 4th DCA 1979), have explored the question of when a tip given a police officer contains sufficient indications of reliability to justify a stop and frisk. See also State v. Gamble, 370 So.2d 428 (Fla. 3d DCA 1979). If these were the criteria applicable to the case at bar, we might readily agree with the defendant’s position that the content of Bridges’ statement to Ferrante does not meet them. It consisted only of a hearsay report about what an unknown informant, his brother, merely “thought” was in the car. Such a statement, even though it involved a firearm, would not serve to raise the “founded suspicion” of criminal activity which would constitutionally support a subsequent stop. E. g., United States v. McLeroy, 584 F.2d 746 (5th Cir. 1978). But no such stop is involved in this case. The vehicle and the occupant in question here were already “stopped,” or at least stationary, for reasons unrelated to police activity. In Pennsylvania v. Mimms, supra, the Supreme Court of the United States clearly and specifically held that very different and much more lenient standards are applicable in determining the propriety of the only police action which is challenged here — the act of ordering one out of a vehicle. In Mimms, the court held that a police officer, with no indication of unlawful activity whatever, could validly order a driver who had been properly stopped for a mere traffic violation to exit his vehicle. The court variously characterized that action as “de minimus,” as one which “hardly rises to the level of a ‘petty indignity’ ” and as “at most a mere inconvenience [which] cannot prevail against legitimate concerns for the officer’s safety.” 434 U.S. at 111, 98 S.Ct. at 333, 54 L.Ed.2d at 337.

The “legitimate concerns for the officer’s safety,” to which the court referred, primarily involve the risks arising from the use of firearms. The court stated at 434 U.S. 110, 98 S.Ct. 333, 54 L.Ed.2d 336-337:

“We think it too plain for argument that the State’s proffered justification— the safety of the officer — is both legitimate and weighty. ‘Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.’ Terry v. Ohio, supra, 392 U.S. at 23, 88 S.Ct. 1861, [20 L.Ed.2d 889,] [44 Ohio Ops.2d 383.] And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. ‘According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings — A Tactical Evaluation. 54 J. Crim LC & PS 93 (1963). — ’ Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972).”

Mimms held that even this generalized concern for an officer’s safety — without any evidence of danger involved in the particular case — was sufficient to justify the “minor inconvenience” of requiring every driver stopped for a traffic violation to get out of his car. There is all the more reason, it seems to us, for vindicating that concern when, as in this case, there is a legitimate reason for actually believing the risk to exist in a particular situation. Because of the risks obviously presented to investigating officers, it has been widely recognized that reports which concern the existence of dangerous weapons are, at least, treated with less rigor than ones involving other possible offenses. See Isham v. State, 369 So.2d 103 (Fla. 4th DCA 1979). Applying these principles to the specific question before us, we hold that a report concerning a firearm in a vehicle which is not plainly without foundation on its face, is sufficient to justify ordering the occupants to leave the car. Since the information given by Bridges, an apparently concerned individual with some knowledge of the surrounding circumstances, was sufficient to meet this admittedly inexacting standard, Ferrante’s action was constitutionally permissible and the firearm was therefore erroneously suppressed.

The order below is reversed and the cause remanded with directions to deny the motion to suppress. '

Reversed and remanded.

      . That concession is well justified by the applicable cases as to an officer’s right to “stop and frisk” for dangerous weapons. E. g., Pennsylvania v. Mimms, supra; Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); State v. Marcinowski, 371 So.2d 144, (Fla. 2d DCA 1979); State v. Hetland, supra, and cases cited, State v. Francois, 355 So.2d 127 (Fla. 3d DCA 1978), cert. denied, 361 So.2d 832 (Fla.1978); see Isham v. State, 369 So.2d 103 (Fla. 4th DCA 1979).

      . Because the supreme court focused upon the minimal intrusion into one’s liberty involved in requiring him only to get out of a car, we believe that Mimms is controlling although, unlike the situation in that case, the car was stopped for reasons unrelated to law enforcement, and the defendant before us was a passenger rather than the driver of the car. See also Foley v. Connelie, 435 U.S. 291, 298, 98 S.Ct. 1067, 1071, 55 L.Ed.2d 287, 293 (1978) (dictum); but see State v. Williams, 366 So.2d 1369, 1374 (La.1978).

      . We need not speculate on the question of whether an “unreliable” report of other criminal activity would justify a command to exit the vehicle. See Pennsylvania v. Mimms, supra, at 434 U.S. 110-111, 98 S.Ct. 330, 54 L.Ed.2d 336-337, nn. 5-6.


text:
    MERCY HOSPITAL, INC., Appellant, v. Margarita MENENDEZ and Valentin Menendez, Appellees.
    No. 79-242.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.
    Adams & Ward, Miami, for appellant.
    Maguire & Friend and Michael P. Ma-guire, Miami, for appellees.
    Barrett, Boyd & Bajoczky and Armando Garcia, Tallahassee, for Florida Patient’s Compensation Fund, as amicus curiae.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

This interlocutory appeal calls for an interpretation and application of the $100,-000.00 limitation on liability in medical malpractice actions when the defendant health care provider has met the conditions set out in Section 768.54(2)(b), Florida Statutes (1977). The appellant is Mercy Hospital, Inc., in Miami, defendant in a medical malpractice action. The appellees are the plaintiffs in that action, who received a verdict for $125,000.00 and subsequently a judgment in that amount. On this appeal, the hospital urges that the trial court erred in its denial of the hospital’s motion for limitation of the judgment to the amount of $100,000.00.

The Medical Malpractice Reform Act provides that upon the performance of the conditions specified, a health care provider “shall not be liable for an amount in excess of $100,000 per claim.” During the progress of this cause, neither the plaintiffs nor the defendant pled the terms of the statute. After the entry of the jury verdict, the defendant filed a motion for limitation of judgment and an affidavit of one of defendant’s officers alleging that the hospital had complied with the conditions of the statute. A hearing was held and the court entered an amended final judgment limiting the plaintiffs’ recovery from the hospital to $100,000.00 and providing for a recovery of $25,000.00 from the Florida Patient’s Compensation Fund.

The Florida Patient’s Compensation Fund filed a “Motion to Appear” asking the court for leave to appear specially for the purpose of presenting a motion for relief from the judgment. The Fund pointed out that it was not a party to the proceeding and that the statute provided that a judgment could be entered against the Fund only if the Fund was a party to the proceeding. A hearing was held and, thereupon, the court entered an order denying the motion for limitation of judgment and re-established the final judgment against the hospital in the amount of $125,000.00. This appeal is from that order.

The appellant hospital’s position is that the statute has been violated in that it provides for the limitation and that the hospital has established its compliance with the conditions of the statute. On the other hand, the plaintiffs’ position is that they are entitled to the full amount of the judgment against the hospital because the hospital failed to plead the statute and its compliance therewith as a defense to the suit.

The question is squarely presented: Is the defendant health care provider required to plead the Medical Malpractice Reform Act in order to receive the benefits of the limitation or may compliance with the statute be shown in limitation of the judgment after the entry of the jury verdict? We hold that the plaintiffs have the burden of making the Fund a party in any suit where recovery is sought against a health care provider in excess of $100,000.00, and that upon the plaintiffs’ failure to make the Fund a party, the trial court may, within the time allowed by Florida Rule of Civil Procedure 1.530, enter an order for the limitation of the judgment in accordance with Section 768.54(2)(b), Florida Statutes (1977).

This decision is reached upon a consideration of the terms of the legislative act and our understanding of the legislative* intent of that act. Legislative intent may be determined from a reading of the act in its entirety. See State v. Gale Distributors, Inc., 349 So.2d 150, 153 (Fla.1977), and cases cited thereat. Where the words of the statute are clear, it is the duty of the courts to give effect to the law, see Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, 694 (1918), unless the court is convinced that the letter and spirit of the statute is unconstitutional in its terms or application. See State ex rel. Davis v. City of Largo, 110 Fla. 21, 149 So. 420 (1933).

The plaintiffs’ suggestion that the limitation provided should be treated as a “set off” that must be pled by the defendant simply is not supported by the language of the statute. The provision in the statute is one of limitation of judgment upon the performance of conditions specified.

It is further argued by the plaintiffs that this application of the statute will give it an unconstitutional effect in that the Fund is like an insurance program and that the legislative requirement that the Fund be joined in the suit is an unconstitutional invasion of the right of the Florida Supreme Court to establish rules of procedure. Cf. Markert v. Johnston, 367 So.2d 1003 (Fla.1978). It is apparent from a reading of the Medical Malpractice Reform Act that the legislature did not set up an insurance fund with obligations to the health care provider. The plan is one in which the Fund has obligations primarily to the plaintiff in a medical malpractice action. As such, it is reasonable to require that the Fund be joined in any suit to enforce those obligations.

Because the obligation of the Fund is not secondary and is not a set-off, it must be joined and have a right to defend. Nor do we think that the obligation of the Fund may be said to be an affirmative defense of the health care provider. To be such a defense the limitation of liability would need to be conditioned on a notice or pleading. Such an intention cannot be gathered from the statute. Perhaps that would have been a better way to have written the limitation but the wisdom of legislation is not within our province. See Holley v. Adams, 238 So.2d 401 (Fla.1970). We, therefore, conclude that the limitation is enforceable after verdict upon proper proof of compliance with the terms and conditions of the statute.

One objection of the plaintiffs to the procedure employed in this case has merit. The plaintiffs were not provided with a pleading alleging the facts upon which the limitation was enforced. On remand, the defendant shall, within ten days, file a pleading alleging the fact that it is a health care provider covered by the limitation contained in the statute and directly alleging the acts that it has performed which meet the conditions set forth in the limitation. The plaintiffs may respond within ten days with an admission or denial as in an answer to a complaint (see Florida Rule of Civil Procedure 1.110). The issues thus raised, if any, may be determined by the court.

Reversed and remanded.

      . This section is a subsequently amended portion of the Medical Malpractice Reform Act of 1975, the wording of which was in effect at the time of the filing of this suit. It provides in part:
      “(b) A health care provider shall not be liable for an amount in excess of $100,000 per claim for claims covered under subsection (3) in this state if, at the time the incident giving rise to the cause of the claim occurred, the health care provider:
      “1. Had:
      “a. Posted bond in the amount of $100,-000 per claim;
      “b. Proved financial responsibility in the amount of $100,000 per claim to the satisfaction of the board of governors of the fund through the establishment of an appropriate escrow account;
      “c. Obtained medical malpractice insurance in the amount of $100,000 or more per claim from private insurers or the Joint Underwriting Association established under subsection 627.351(7); or
      “d. Obtained self-insurance as provided in s. 627.357, providing coverage in an amount of $100,000 or more per claim, and
      “2. Had paid, for the year in which the incident occurred for which the claim was filed, the fee required pursuant to subsection (3).”

      . Section 768.54(3)(e), Florida Statutes (1977), provides in part:
      “(e) Claims procedures.—
      “1. Any person may file an action against a participating health care provider for damages covered under the fund, except that the person filing the claim shall not recover against the fund for any portion of a judgment for damages arising out of the rendering of, or failure to render, medical care or services against a health care provider for damages covered under the fund unless the fund was named as a defendant in the suit.”
      * * * * * *

      . See Florida Rule of Civil Procedure 1.170.


text:
    STATE of Florida, Appellant, v. Gary Wade BRAGG, Appellee.
    No. 77-2075.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1979.
    Michael J. Satz, State’s Atty., Seventeenth Judicial Circuit, and Patti Englander and Lisa Klein Goldstein, Asst. State’s Atty., Fort Lauderdale, for appellant.
    John L. Sutton and C. B. Hankel, III, Pompano Beach, for appellee.
   PER CURIAM.

This is an appeal from an order granting a motion to suppress any reference at trial to a live lineup conducted before trial. The ruling was apparently based solely on the finding that through the fault of the state appellee’s counsel was not present at the lineup which was conducted the day following appellee’s arrest for burglary. The lineup took place prior to the appellee’s appearance before any judicial officer and prior to the filing of a formal charging document. Under such circumstances we do not believe the appellee had a right to counsel at the lineup. Robinson v. State, 351 So.2d 1101 (Fla. 3d DCA 1977); State v. Ciongoli, 313 So.2d 41 (Fla. 4th DCA 1975). Accordingly, the order of suppression is reversed.

ANSTEAD and DAUKSCH, JJ., and SCHOONOVER, JACK R., Associate Judge, concur.


author: LETTS, Judge.

text:
    Glen T. McCALL and State Farm Insurance Company, Appellants, v. Danny K. GARLAND, Appellee.
    No. 78-701.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1979.

      Nancy Little Hoffmann, Fort Lauderdale, Thomas T. Grimmett, of Grimmett, Scherer & James, Fort Lauderdale, for appellants.
    Harry S. Raleigh, Jr., of McCune, Hiaa-sen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for appellee.
   LETTS, Judge.

This appeal centers on whether a Volvo “sold” by the appellant to a third party purchaser was still covered by the seller’s insurance policy after the purchaser was involved in an accident and killed five days after receiving physical possession, the keys and the registration card. The trial court held the seller’s insurance was still in effect. We reverse.

The details of this $135.00 sale involve an oral agreement under which the purchaser was to pay $15.00 down, which he did, and $10.00 a week thereafter. It was the parties understanding that the Volvo would not be delivered to the purchaser until the seller was able to take delivery of his new replacement car. On October 26th the seller took delivery of his new replacement car and the purchaser was given physical possession of the Volvo together with the keys and registration card. However, the seller continued to hold the title certificate as collateral to secure payment of the installments testifying that:

The intentions were that the car was his and I was simply holding the title as chattel — let me rephrase that — as a collateral against him paying me.

Were the above the only facts in this case the result would be obvious. However, the situation is complicated by the fact there is a conflict as to when the seller notified his insurance agent that he no longer owned the Volvo and that the new replacement car was to be substituted. The seller claims he called his agent prior to the accident in question, but admits to the possibility that the conversation may not have taken place until two days after. It is, however, conceded by all that the seller had no knowledge of the accident at the time that he spoke to his agent about the sale and replacement. It is also conceded that it was never the seller’s intent to add a second car to his insurance policy and that the new car was a replacement for the Volvo.

Vital to our conclusion is a form entitled “change request” filled out by the insurance agent and referred to by him as a “transfer application.” This particular form provided unequivocally for a substitution of the new car, a Dodge Charger, for the old Volvo “effective 10/29/76” which was two days before the accident occurred.

The appellee argues that this change request form is not controlling because it is dated November 2nd, two days after the accident. We do not agree that the date of the filling out of the “change request” is controlling, and are of the opinion that the controlling factor is the “effective” date on the form when it is considered in conjunction with all of the other uncon-troverted facts. We also reject the contention that both cars were covered on October 31, 1971. Even if the insurance agent was not notified of the transfer until November 2nd, we are of the opinion that the new car would still be the one which was covered under the policy by reason of the clause providing standard coverage for the first 30 days after any vehicle replaces another, notwithstanding lack of notification.

Accordingly, even although the legal title to the automobile remained in the seller, the beneficial ownership was transferred to the buyer prior to the accident together with a tender and acceptance of the down-payment and the surrender of sole authority and control. This, coupled with the seller’s testimony as to his intent and the subsequent payment of the full purchase price, convinces us that the seller was not liable for the negligent operation of the automobile simply because he retained the naked legal title. Palmer v. R. S. Evans, Jacksonville, Inc., 81 So.2d 635 (Fla.1955). See also, Williams v. Davidson, 179 So.2d 387 (Fla. 1st DCA 1965) and Cox Motor Company v. Faber, 113 So.2d 771 (Fla. 1st DCA 1959).

Two principle cases cited by the appellee are St. John v. Michaels, 178 So.2d 193 (Fla.1965) and Register v. Redding, 126 So.2d 289 (Fla. 1st DCA 1961). However, we have little difficulty distinguishing them. The latter Register case involved no downpayment and no weekly installments. Moreover, the purchaser voluntarily returned the vehicle to the seller for the latter to purchase a new automobile license tag after the date of the accident. In the St. John case the Supreme Court relied on the Register holding above referred to and pointed out that the credibility of the seller was an issue. The facts reveal that the seller in St. John equivocated as to what her intentions were, testifying at one point that she would have immediately transferred the title except that the purchaser did not have time to complete this administrative process, while at another point she stated that it was her intention all along to continue to hold the title until paid in full. Moreover, in St. John the seller recovered the car after the accident and sold it in payment of a storage bill thereon.

By contrast in the case at bar the vehicle was never returned to the seller after the accident, all bills on it were paid by the purchaser and the purchaser’s widow continued with and concluded all of the payments thereon.

It is, therefore, our conclusion that the trial court erred in holding the seller’s insurance covered the Volvo on the date of the accident in question and this cause is reversed and remanded to the trial court for the entry of a final judgment in accordance herewith.

REVERSED AND REMANDED.

CROSS and MOORE, JJ., concur.


text:
    Terry BRAGG, a/k/a Terry Dee Bragg, Appellant, v. STATE of Florida, Appellee.
    No. 78-714.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1979.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, and Roger J. Slaydon, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from the trial court’s denial of the appellant’s motion to dismiss the charge of burglary of a conveyance under Section 810.02(3), Florida Statutes (1977). Defendant entered a nolo conten-dere plea and reserved his right to appeal the trial court’s ruling. The charge alleges that defendant opened the hood of a 1971 Datsun automobile intending to remove the battery. No charge is made that he entered the passenger compartment.

Appellant argues that it is not burglary, under the plain meaning of Sections 810.-02(1) and 810.011(2), Florida Statutes (1977), to “enter” the engine compartment, without “entering” the passenger compartment. We disagree. Section 810.02(1) defines burglary as “entering or remaining in a structure or a conveyance with the intent to commit an offense therein.” Section 810.011(2) defines conveyance as “any motor vehicle, ship, vessel, railroad ear, trailer, aircraft, or sleeping car,” and further states, “ ‘to enter a conveyance’ includes taking apart any portion of the conveyance.” There is no limitation in either the statutes or in case law indicating that the entering must be into the passenger compartment. There is no distinction between entering the engine compartment, the passenger compartment, or the trunk as far as its being an “entering” as prohibited by the obvious wording of Sections 810.02(1) and 810.011(2), Florida Statutes (1977). The trial court was correct in denying the motion to dismiss.

AFFIRMED.

ANSTEAD and MOORE, JJ., and GEIGER, DWIGHT L., Associate Judge, concur.


text:
    SERVICE FACILITIES CORPORATION, Appellant, v. Wade H. LANIER, Jr., Property Appraiser, Osceola County, Florida, et al., Appellees.
    No. 78-999.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1979.

      Bruce E. Chapin, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., Tallahassee, R. Stephen Miles, Jr., of Miles & Cumbie, and Murray W. Overstreet, Jr., of Overstreet & Ritch, Kissimmee, for appel-lees.
   PER CURIAM.

This is an appeal by the plaintiff taxpayer from a final judgment. Appellant was the plaintiff below and is a water and sewer corporation. Plaintiff sued the County Property Appraiser challenging the assessments for the years 1974, 1975, and 1976, on its tangible personal property. The complaint alleged that the property appraiser had not considered the factors contained in Section 193.011 Florida Statutes (1971) or followed the dictates of the Florida Administrative Code, Rule 12B-1.103(2)(E). The case was tried before the court without a jury and at the close of the plaintiff’s case, a judgment was entered for defendant. We reverse.

Assuming presentation of a prima facie case, the trial judge in a non-jury matter may not weigh and judge the credibility of the evidence when ruling upon a defendant’s motion pursuant to Rule 1.420(b) of the Florida Rules of Civil Procedure. Tillman v. Baskin, 260 So.2d 509 (Fla.1972). Such a motion for involuntary dismissal following the presentation of the plaintiff’s prima facie case is in the nature of a ruling on a motion for directed verdict in a jury trial. We conclude that a prima facie case was presented and that the trial court could not have granted the motion without weighing the probative effect of at least some of the evidence. We, therefore, conclude that the trial court erroneously entered judgment for defendant and the final judgment, including the taxation of costs and interest, is reversed and remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

CROSS, DAUKSCH and BERANEK, JJ., concur.


author: DAUKSCH, Judge.

text:
    Aldo CAMPI, Appellant, v. STATE of Florida, Appellee.
    No. 79-453.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1979.
    Jose G. Rodriguez of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a summary denial of a motion to vacate judgment and sentence filed under Florida Rules of Criminal Procedure 3.850. The trial court held the motion and the files and records in the case conclusively show the prisoner/petitioner is entitled to no relief and thus denied an evidentiary hearing. We have reviewed the record before us and have determined there is sufficient question raised as to whether the petitioner intelligently and voluntarily entered his plea of guilty with full knowledge of the consequences of the plea and with complete understanding of the nature and consequences of the plea of guilty.

The summary order denying the motion to vacate is reversed and this cause remanded for hearing on the petition. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

REVERSED and REMANDED.

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


author: PER CURIAM. DAUKSCH, Judge,

text:
    Rolando MORALES, Petitioner, v. Honorable Thomas M. COKER, Jr., as Judge of the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida, Respondent.
    No. 79-456.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1979.

      Alan H. Schreiber, Public Defender, and Grafton N. Carlson, Asst. Public Defender, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The Petition for Writ of Prohibition is DENIED.

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

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent. Petitioner seeks our writ of prohibition to enforce the Speedy Trial Rule, Florida Rules of Criminal Procedure 3.191. This petitioner was charged with Uttering a Forgery and on November 13,1978 demanded a speedy trial which required he be brought to trial within sixty days. Florida Rules of Criminal Procedure 3.191(a)(2). The petitioner never filed a motion for continuance or in any way indicated his lack of readiness to go to trial and he was continuously available for trial. The state did not request a continuance.

On the morning of trial and after the jury selection had begun the trial judge took a recess in order to attend to other court business. The petitioner and his lawyer met in the jail together while the jury venire was sent out of the courtroom to wait in a hallway. At this time one of the prisoners in the courtroom ran out of the courtroom and had to be caught by court bailiffs after passing in view of the venire and running into a couple of the prospective jurors. Upon learning of this the trial judge on his own initiative dismissed the venire and, without consulting either the petitioner or the state, continued the trial.

When petitioner’s counsel returned to the courtroom he was told of the court’s actions and he immediately objected saying there was no showing the jurors had been prejudiced; he requested an inquiry of them; that a curative instruction would suffice; and a “fresh panel” was available in the jury room. The trial judge refused to abide by the wishes of the accused and the state, following the court’s suit, requested a continuance — after the court had continued the case on its own.

Under Florida Rules of Criminal Procedure 3.191(a)(2) the accused is entitled to be discharged if he is not brought to trial within 60 days of his demand for speedy trial. While he was not entitled to discharge on the January 3, 1979 trial date he was so entitled around January 13, 1979 or whenever 60 days from his November 13, 1978 demand was made. To me it is absolutely clear the court erred in not affording the petitioner his speedy trial. There is no provision of the rule and there are no appellate cases which would support the trial court and the majority decision here. The only provision of the speedy trial rule which even comes close is Florida Rules of Criminal Procedure 3.191(f)(iv) which says: the court may continue a trial beyond required trial time upon “a showing- by the accused or the State of necessity for delay grounded on developments which could not have been anticipated and which will materially affect the trial.” Not only was there no showing by either party of such a necessity there was not even an allegation of such by either party. The after-the-fact rather halfhearted concurrence by the state in the court’s order is hardly what the rule or justice requires.

To require this presumed innocent accused to sit in jail for another 30 days, or longer, while the court for insubstantial reasons requires an unrequested delay is a denial of justice. That’s bad, of course, but what makes it worse is the court had another ten days to try the petitioner and refused even to do that.

" This petitioner should be discharged.

      . Speedy Trial Upon Demand. Except as otherwise provided, and subject to the limitations imposed under section (c) hereof, every person charged with a crime by indictment or information shall upon demand filed with the court having jurisdiction and upon service of a copy of such demand upon the prosecuting attorney be brought to trial within 60 days, unless the State is granted a continuance because of exceptional circumstances as defined in this Rule, and if not brought to trial within such period of time following such demand shall upon motion timely filed with the court and served on the prosecuting attorney be forever discharged from the crime; provided, the court before granting such motion shall ascertain that such person has been continuously available for trial during said period of time. The time period established by this section shall commence when such demand has been properly filed and served. If such person is serving in Florida or elsewhere a sentence of imprisonment for an unrelated crime, the operation of this section shall not be effective until such person is no longer imprisoned and becomes available for trial, nor until such person has abandoned or waived further proceedings under § (b)(2) of this Rule if such have been initiated.


author: ERVIN, J., Acting Chief Judge.

text:
    William J. PAGE, Jr., as Secretary of Health and Rehabilitative Services of the State of Florida, Art Forehand, as Bureau Chief of the Bureau of Community Medical Facilities of the Department of Health and Rehabilitative Services of the State of Florida, n/k/a Administrator of the Office of Community Medical Facilities, Appellants, v. CAPITAL MEDICAL CENTER, INC., a Florida non-profit corporation, Appellee.
    No. JJ-134.
    District Court of Appeal of Florida, First District.
    June 13, 1979.
    Jean Laramore, Tallahassee, • for appellants.
    Everett P. Anderson of Pennington & Wilkinson, Tallahassee, for appellee.
   ERVIN, J., Acting Chief Judge.

The Department of Health and Rehabilitative Services (HRS) appeals a circuit court’s declaratory judgment that the Bureau of Community Medical Facilities Planning (Bureau) has only ministerial power under Section 381.494(6), Florida Statutes (1973), to issue or deny certificates of need to applicants proposing new medical facilities. Ironically, when the parties were before this court in General Care Corporation v. Forehand, 329 So.2d 49 (Fla. 1st DCA 1976), we held that since the Bureau’s duties under the Health Facilities Planning Act were not merely ministerial the circuit court had correctly dismissed Capital Medical Center’s petition for mandamus under Section 381.494(6)(f), seeking to compel the Bureau to approve its application for a certificate of need, and that since we had earlier dismissed Medical Center’s petition for review of the Bureau’s final agency action, on grounds the petition for mandamus was pending on the same subject matter in circuit court, Medical Center would be allowed judicial review of the administrative action by a declaratory action in Circuit Court. Thus this appeal from that judgment.

Despite the local areawide planning council’s advisory recommendation that Medical Center be issued a certificate of need, the Bureau first recommended the certificate be denied, and referred it to the State Hospital Advisory Council for a hearing. The Council also recommended the certificate be denied, and on August 22, 1974, the Bureau denied Medical Center a certificate of need. The trial judge found that Medical Center is a non-profit corporation formed to build a second hospital in the Tallahassee area. At the hearing before the local areawide council, Medical Center presented evidence relevant to local need for the hospital, and areawide council staff members presented adverse evidence. No Bureau members were present. Before the Bureau had reviewed any of the evidence in the hearing before the areawide council, a representative of the Bureau stated that he planned to deny the certificate of need.

Need for the Medical Center’s project was determined partly by use of the 1973 state plan, which utilized the Hill-Burton formula. The trial judge found that the 1973 plan, based on 1971 population figures and predicting 1980 population levels which were exceeded in 1973, was not considered reliable by the bureau chief and bureau staff members. He concluded that the Medical Center had substantially complied with the procedure in Section 381.494, and, since only the local areawide planning council conducts investigations, the Bureau’s function in issuing or denying certificates of need is purely ministerial, and that the statute establishes no criteria by which the Bureau may independently evaluate whether to issue or deny a certificate of need. The Bureau was ordered to issue the requested certificate of need and to report to HEW that Medical Center’s application was timely filed, that the state plan was no longer a meaningful tool in determining need for community medical facilities, and that, since other certificates have been issued to applicants not in conformity with the plan, issuance of the certificate under federal law was recommended.

We agree with the Department that the Bureau’s decision to issue or deny certificates of need under Section 381.494(6), Florida Statutes (1973), was not ministerial. Section 381.493(3)(h), Florida Statutes (1973), states that a local areawide planning council is “an advisory comprehensive health planning council . . . .” (e. s.) The areawide council’s “advisory certificate of need study” is “a written advisory statement . . . evidencing community need, or lack of need . . . .” for additional medical facilities, (e. s.) Section 381.493(3)(d). The councils are to “make such investigations and inquiries . as necessary ... to make . advisory recommendationfs] ... to the bureau.” Section 381.494(5)(a). The Bureau, on the other hand, is the “single state agency to issue certificates of need in accordance with present and future federal, state, and departmental rules and regulations.” Section 381.494(6)(a). The Bureau is to review the applications and recommendations of the local areawide planning councils before its decision. Section 381.-494(6)(d).

Contrary to the trial judge’s finding, it is clear that the Bureau is required to follow applicable federal, state and departmental rules and regulations in administering the certificate of need program. Section 381.494(6)(b) states that HRS shall consult with certain agencies and professional associations “in matters of policy affecting the administration of Sections 381.494-381.-497, and in promulgating rules, regulations, and minimum standards for the issuance of certificates of need.” Implicit in that directive is the understanding that the Bureau, as the “single state agency to issue certificates of need . . .,” Section 381.494(6)(a), is bound by those policies, statutes and regulations.

All of the other judicial acts the Department complains of were based on the circuit court’s finding that the Bureau was to exercise merely a ministerial function in issuing or denying certificates of need. There were only cursory factual findings on the evidence Capital Medical Center submitted to justify the expenditure, and no mention was made of the Bureau’s evidence. Clearly, the trial judge did not base any part of the order on a finding that Capital Medical Center’s evidence showed a need for the hospital. Since there is no basis upon which to sustain the declaratory judgment, it is

REVERSED.

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

      . The Hill-Burton formula, promulgated under Section 1122 of the Social Security Act (42 U.S.C. § 1320a-l et seq.), determines need for additional acute care hospital beds in a given area using population figures.

      . We held as much in General Care Corporation v. Forehand, supra at 50, without discussing the statute.

      . In 1975, the Act was amended to provide for Section 120.57 hearings to parties after the Bureau’s decision on whether to grant or deny certificates of need. The Bureau’s decision after the hearing officer’s recommended order constituted final agency action. See Bureau of Community Medical Facilities, etc. v. Samson, 341 So.2d 1071 (Fla. 1st DCA 1977). The statute was amended in 1977 to place all of the Bureau’s functions into the hands of the Department of Health and Rehabilitative Services.