text:
    Robert N. CLARK, as the City Clerk of the City of Sunrise, Appellant, v. Dennis J. WALTON, Appellee.
    No. 76-2535.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1977.

      H. Mark Purdy, Parkhurst, LaHurd & Purdy, P. A., Fort Lauderdale, for appellant.
    Frank E. Hamilton, III, Hamilton, Douglas & Bennett, P. A., Fort Lauderdale, for appellee.
   DAUKSCH, Judge.

We have jurisdiction of this Interlocutory Appeal of an Order adjudging Appellant in contempt because it is an Order in an action formerly cognizable in equity and an Order entered after Judgment in a civil action. Article V, Section 4(b)(1), Florida Constitution. Fla.App.Rule 4.2(a).

Appellant is a City Clerk who was ordered by Mandamus to provide a list of the names and addresses of city employees to Appellee who is a business agent of a labor union. That Mandamus Writ is on appeal to this court but not under consideration here.

After appeal of the “Final Judgment granting Peremptory Writ of Mandamus” was filed the Appellee moved to have the Appellant held in contempt of court because he had not complied with the Judgment and failed to obtain a stay order as required by Section 119.11(2), Florida Statutes (1975), which says a notice of appeal shall not operate as an automatic stay.

The Appellant replied to the Motion for Contempt by citing Fla.App.Rule 5.12 which says when an officer (clerk) of a political subdivision of the state (a city) takes an appeal then the notice of appeal stays the execution of the order appealed.

There is a direct conflict between Section 119.11(2), Florida Statutes (1975) and Fla. App.Rule 5.12 so we must first determine if the subject matter of the two is procedural or substantive. If it is procedural then the Rule prevails. Article V, Section 2, Florida Constitution. Section 25.371, Florida Statutes (1975). In re: Clarification of Florida Rules of Prac. & Pro., 281 So.2d 204 (Fla.1973).

Procedural law is that law which governs and defines the methods by which the substantive law is effected and enforced. In this case the substantive law is the matter disputed — whether or not the City Clerk is required to furnish the names and addresses. The trial court determined that he should so furnish and the Clerk appealed. No stay order was entered and the application of the union man to have the Clerk held in contempt for non-compliance with the Judgment was granted. The obtaining of a stay order to prevent a contempt order or other enforcement of a Judgment is procedural law. See Benyard v. Wainwright, 322 So.2d 473 (Fla.1975); State v. Garcia, 229 So.2d 236 (Fla.1969); In re: Clarification of Florida Rules of Prac. & Pro., supra.

Since we have determined the question of whether or not the Clerk need obtain a stay order is procedural than the Rule of the Supreme Court must take precedence over the Statute. Fla.App.Rule 5.12 controls over Section 119.11(2), Florida Statutes (1975) and the attempt by the legislature to have otherwise is violative of Article V, Section 2, Florida Constitution.

The Order of the court below denying a stay of the proceedings and holding the Appellant in contempt is REVERSED.

ALDERMAN and LETTS, JJ., concur.


source: Caselaw Access Project

author: DAUKSCH, Judge.

license: Public Domain

text:
    UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. Charles H. VAN IDERSTYNE and Joanne Van Iderstyne, Appellees.
    No. 76-2672.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1977.
    Roy R. Watson of Adams, Sullivan, Coo-gler & Watson, West Palm Beach, for appellant.
    Cone, Owen, Wagner, Nugent, Johnson & McKeown and Larry Klein, West Palm Beach, for appellees.
   DAUKSCH, Judge.

This appeal involves the uninsured/unde-rinsured motorist statute.

On October 1, 1973 Chapter 73-180 took effect to amend Section 627.727, Florida Statutes by providing that all insurance policies issued after that date must provide uninsured and underinsured motorist coverage in limits not less than the liability coverage limits in the policy.

On October 29, 1973 an insurance policy endorsement was issued by Appellant to Appellee to add an automobile and the premium therefor. The liability limits on the originally issued policy and the endorsement were $50,000/$100,000 and the uninsured motorist coverage limits were $10,-000/$20,000.

In January, 1974 Appellees’ minor son was struck and killed by an automobile. The coverage on that automobile was $25,-000 and the Appellees settled their claim against the owner and operator of the car and their insurance company for $27,000. The Appellees now make claim against their underinsured motorist coverage as they say is provided by the policy and/or the endorsement of October 29, 1973 in compliance with the statute.

For us to decide is the correctness vel non of an Order granting partial Summary Judgment for Appellee and denying Summary Judgment for Appellant. The Order is an interlocutory Order in an equitable action for declaratory relief. We hear this appeal under Fla.App. Rule 4.2. Kingdon v. Walker, 156 So.2d 208 (Fla.2d DCA 1963); Auto Owners Insurance Company v. West, 260 So.2d 534 (Fla.3d DCA 1972); Travelers Insurance Company v. Wilson, 261 So.2d 545 (Fla.4th DCA 1972).

The issue as set out by the trial court in its Order is the interpretation of the effect of the endorsement of October 29, 1973. We agree with the trial court which said there are three possible interpretations:

“a. The endorsement relates back to the date of the issuance of the original policy. Under this interpretation, [Appellant] would prevail.
b. Issuance of the endorsement constitutes a reissuance or redelivery of the entire policy. Under this interpretation, [Appellees] would prevail.
c. Issuance of the endorsement constitutes issuance of a severable and independent contract of insurance. Under this interpretation, [Appel-lees] would prevail.”

There is no question that the endorsement and the policy are interrelated and interdependent. If it were not for the endorsement the second automobile would not be covered and if it were not for the policy we wouldn’t know most of the terms of the coverage. We must look to three sources for a complete definition of the rights and obligations of the two parties. First to the original policy to find the definition of all the terms of the coverage as contemplated by the parties at the time the contract was entered into, and the identity of the vehicle covered. Second to the endorsement to find the identity of the second vehicle and the amount of coverage applicable to that vehicle. Third to the statutes, regulations and the law governing insurance contracts.

It is not unheard of for the legislature to pass a law and an insurance company not recognize the law and issue a policy not in conformance therewith. In a case such as this, this court has written into the policy a provision to comply with the law. Allison v. Imperial Casualty and Indemnity Co., 222 So.2d 254 (Fla.4th DCA 1969).

In the ease at bar the statute required the insurance policy to contain uninsured/underinsured coverage in an amount not less than the liability coverage. Since this was not done the pivotal question is whether or not this court should write into the policy and/or the endorsement the coverage.

The exact question has not been answered in Florida but in Idaho it was and we cite Gem State Mutual Life Association v. Gray, 77 Idaho 157, 290 P.2d 217 (1955). In that case a policy was issued in 1941 which had no provision in regard to attorney’s fees for a claimant’s attorney in the event of a successful suit contesting the policy. In 1951 their legislature passed a law providing for such fees. In 1953 the claimant purchased additional coverage under the 1941 policy and later had to litigate the policy with the company. When the successful claimant sought attorney’s fees the company protested the policy did not provide for attorney’s fees and the additional coverage was merely a part of that policy and the law of 1941 was applicable. That court said:

“. . .it provides additional insurance separate and apart from that provided by the original policy, for which a separate and additional consideration was agreed upon and paid. Thus it is in effect a severable and independent part of the original contract.”

This is the reasoning we must apply here, the additional coverage for the added car with the concomitant additional premium constituted a separate and severable contract issued on October 29, 1973. The legislature said policies issued then must have what Appellee claims so we affirm the trial court’s ruling.

AFFIRMED.

MAGER, C. J., concurs.

CROSS, J., concurs in conclusion only.


author: DOWNEY, Judge.

text:
    COUNTY OF SEMINOLE, State of Florida, Petitioner, v. CITY OF LAKE MARY, a Florida Municipal Corporation, Respondent.
    No. 77-509.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1977.
    Joe Horn Mount, County Atty., Sanford, for petitioner.
    Gary E. Massey of Brock, Massey, Walden & Baum, Altamonte Springs, for respondent.
   ON MOTION TO DISMISS

DOWNEY, Judge.

Seminole County has filed a petition for writ of certiorari to review an ordinance of the City of Lake Mary annexing certain property. Petitioner asserts that the petition is filed “pursuant to Sections 171.081, 120.31 and 120.68, Florida Statutes, as amended . . .

The City of Lake Mary has moved to dismiss the petition on the ground that jurisdiction to review annexation ordinances is in the Circuit Court pursuant to Section 171.081, Florida Statutes (1975).

Unfortunately, Section 171.081 is no model of legislative draftsmanship; its operative terms are in conflict. The section provides:

“171.081 Appeal on annexation or contraction.—
“(1) No later than 30 days following the passage of an annexation or contraction ordinance, any party affected who believes that he will suffer material injury by reason of the failure of the municipal governing body to comply with the procedures set forth in this chapter for annexation or contraction or to meet the requirements established for annexation or contraction as they apply to his property may file a petition in the circuit court for the county in which the municipality or municipalities are located seeking review by certiorari pursuant to s. 120.31. In any action instituted pursuant to this section, the complainant, should he prevail, shall be entitled to reasonable costs and attorney’s fees.”

It appears that the first part of the statute directs that the ordinance be reviewed in the circuit court by certiorari; while the latter part directs that review take place pursuant to Section 120.31. The latter section provides that review of final actions of administrative agencies be by the district court of appeal. See Section 120.31, Florida Statutes (1973). Obviously the latter part of Section 171.081 contradicts the first part. Try as we might under appropriate rules of statutory construction, we cannot give effect to every part of the section. However, since annexation is a matter imbued with local interest and problems, we think the Legislature intended the initial review of annexation matters to be in the circuit court of the county wherein the involved municipality is located. As a matter of fact, that is exactly what the Legislature said. Under these circumstances we prefer the rule set forth in 82 C.J.S. Statutes § 346, pp. 712-714:

. .a statute should be so construed that no word, clause, sentence, provision, or part shall be rendered sur-plusage, or superfluous, meaningless, void, insignificant, or nugatory, if that result can be avoided, or unless it is not possible to give effect to every word without doing violence to the plain meaning of a word, or unless the exigencies of the situation, as presented from a consideration of the statute as a whole, imperatively demand that some word, phrase, or sentence be discarded, disregarded, rendered useless, or deprived of meaning.” (Emphasis added; footnotes omitted.)

Thus we disregard the phrase “pursuant to s. 120.31”; and construe the remaining plain language of the section to provide for review in the circuit court.

Another argument supporting jurisdiction for review in the circuit court is that Section 120.31 was repealed by the Legislature in 1974 (Section 4, Chapter 74-310, Laws of Florida). In re-enacting a new Administrative Procedure Act, the Legislature provided for review of final agency action in the district court of appeal. This might appear to replace Section 120.31. However, the Legislature has not amended Section 171.081 by replacing “s. 120.31” with “s. 120.68”. Since Section 120.31 has been repealed, it is a nullity, and any reference to it in another statute that is still effective may properly be ignored.

The Motion to Dismiss the Petition for Writ of Certiorari is granted and said petition is dismissed.

ALDERMAN, J., and PARHAM, HARRY C., Associate Judge, concur.


author: PEARSON, Judge.

text:
    Jeanne BOWEN, Appellant, v. Alfred BOWEN, Appellee.
    No. 76-15.
    District Court of Appeal of Florida, Third District.
    June 7, 1977.
    Rehearing Denied July 27, 1977.

      Sinclair, Louis, Siegel & Heath and John L. Zavertnik, Miami, for appellant.
    Bridges & Dorsy, Coral Gables, for appel-lee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ. '

   PEARSON, Judge.

The appellant wife has brought this appeal from a Final Judgment Dissolving Marriage and has presented six points on appeal. The burden of all of these points is that the evidence does not support the award to the wife of only rehabilitative alimony for two years and a one-half interest in the marital residence with the burden of the mortgage payments and all the taxes and maintenance. See Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974); Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975); Blass v. Blass, 316 So.2d 308 (Fla. 3d DCA 1975), and King v. King, 316 So.2d 322 (Fla. 4th DCA 1975).

In the final judgment dissolving the marriage, the trial judge gave custody of the two minor sons, ages 13 and 14, to the wife with the husband to pay child support of $300 per month per child. For a twenty-four month period, the husband is to pay to the wife, as rehabilitative alimony, the sum of $900 per month. Thereafter, all obligations to pay alimony shall terminate unless a subsequent change in circumstances requires additional support for the wife. The wife is awarded the exclusive occupancy and possession of the marital home until the first of any of the following occurs: (a) the minor children attain the age of majority; (b) there is any permanent change of custody of the minor children; (c) the wife abandons the premises; or (d) the wife remarries. Also, the wife is awarded a special equity of $20,000 by way of the husband’s note to the wife’s father being cancelled. In this regard, if the $20,000 note is not cancelled, the wife shall be responsible for $10,000 and the husband responsible for $10,000 and each party shall be responsible for his or her half of the interest and attorney’s fees. Additionally, the judgment makes the wife responsible for the repair and maintenance of the marital home, and if and when the home is sold, the wife is to recover credit for one-half of the principal payment made on the first mortgage. As well, the husband shall receive credit for one-half of the principal payment on the mortgage made by him from November, 1974, to the date of the judgment. Further, the wife is to be paid her interest in her former husband’s professional association retirement plan and is to have transferred to her all right, title and interest in a 1973 Oldsmobile presently in her possession, both to be carried out within thirty days of the date of the judgment. In return, the wife is to transfer all right, title and interest in a truck-camper presently in the husband’s possession within thirty days of the judgment. With the exception of certain personalty, the wife is to have all right, title and interest in the furnishings, appliances and other personalty presently contained in the marital domicile. Finally, the husband is directed to maintain the existing life insurance policies on his life in full force and effect with his children as beneficiaries thereof, and may not borrow against these policies without the written permission of the court.

The evidence viewed in the light most favorable to the trial court’s judgment is as follows: The appellant wife and appellee husband were married in July of 1960 and separated in October of 1974. At the time of their marriage, the wife was a registered nurse employed as an instructor in the School of Nursing at Jackson Memorial Hospital earning between $500 and $600 per month. The husband had just graduated from medical school and had entered into his internship at the University of Miami. Since he was earning less than $100 per month, the wife continued working. The couple lived in a fully furnished home that was owned by the wife prior to the marriage. The wife continued working until a few weeks before the birth of her first child in late 1961. The second child of the marriage was born approximately one year later. At this time, it was mutually decided that the wife should remain a full time mother, rather than return to work. Following the completion of the husband’s internship and four years of specialty residency in otolaryngology at Jackson Memorial Hospital, the husband enlisted in the Air Force in 1965.

In 1967, upon the completion of his military obligation, Dr. Bowen decided to go into private practice in Miami. His wife and children preceded him in returning to Miami, and thereafter, he opened his office, with Mrs. Bowen assisting him as a nurse and taking care of all the bookkeeping and paper work for him in order to help him establish his practice. From 1967 to 1971, she was not paid for the work she did. In 1971, Dr. Bowen’s practice was incorporated, and Mrs. Bowen continued working on a part-time basis until the time of the dissolution of marriage proceedings.

After Dr. Bowen established his medical practice, the family enjoyed a high standard of living. The family purchased a home, the funds being derived from the sale of Mrs. Bowen’s home and $20,000 from her father. The two sons attend a private academy located only five minutes from the family home. The tuition for the children is approximately $4,500 per year.

From 1971, until the time of the separation, Mrs. Bowen received $600 per month from her husband’s incorporated medical practice. During this period, Dr. Bowen received a salary from the incorporated medical practice of $2,000 per month plus various valuable benefits and expenses. The parties’ joint income tax return for 1974 was just over $49,000, of which Dr. Bowen, on an individual basis, received over $40,000. Since the separation of the couple, Dr. Bowen has increased his take-home pay from the association from $2,000 to $2,500 monthly. He has rented a two-bedroom apartment in Coral Gables and has maintained a 1976 Mark IV Lincoln Continental on a rental basis.

With regard to the marital home of the parties, it was purchased in 1969 for $89,300 and is burdened by a mortgage in the approximate amount of $58,000. The monthly payments are $635, which includes principal, interest, taxes and insurance. In addition, the equity in the home is burdened by a charge for the $20,000 advanced by the wife’s father. While the husband testified that the $20,000 was a gift, the record shows that a note was given by Dr. Bowen for the $20,000 and that the father has been paid $85 per month interest, which the father has reported and Dr. Bowen has deducted for federal income tax purposes.

The Supreme Court of Florida has recently set forth the test to be applied in the review of the settlement of property matters in dissolution of marriage cases. In Shaw v. Shaw, 334 So.2d 13 (Fla.1976), the court stated that the test is whether the judgment of the trial court is supported by competent evidence. In Herzog v. Herzog, 346 So.2d 56 (Fla.1977), the court restated the test in Shaw and concluded that generally, in appellate proceedings, the trial court’s findings of fact are shielded from attack and are clothed with a presumption of validity. In the instant case, the judgment does not contain findings of fact; nevertheless, we conclude that findings of fact were necessarily made by the trial judge upon which to base his determinations on the questions of alimony and the disposition of the jointly held residence.

We hold that under no reasonable view of the record can it be said that there is competent evidence to support the judgment of the trial court that the wife is not entitled to permanent alimony, nor is there competent evidence to support the failure to award her a special equity in the marital residence to compensate her for her contribution to the joint assets of the parties. Cf. McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977); Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), and Ruhnau v. Ruhnau, 299 So.2d 61, 65 (Fla. 1st DCA 1974).

Thereupon, the judgment will be affirmed in part, reversed in part and remanded with directions to enter an amended judgment. The award of alimony in the amount of $900 per month shall be designated as permanent alimony until and unless a subsequent order is entered based upon a change in circumstances pursuant to Section 61.14, Florida Statutes (1975). The wife shall be awarded the husband’s equity in the marital residence as a special equity to compensate her for her contribution to the joint assets of the parties. As a consequence of the award of the marital residence to the wife, paragraph number “6” including subparagraphs (a) through (f) shall be eliminated from the judgment. The husband’s $20,000 note to the wife’s father is declared a charge upon the wife’s equity in the marital residence and in the event of a sale of the property, it shall be paid from the proceeds of the sale. In addition, the husband shall be allowed a credit upon alimony payments for any interest paid upon the note after the date of the amended judgment.

Affirmed in part, reversed in part and remanded.


author: PER CURIAM.

text:
    U. S. LIABILITY INSURANCE COMPANY, Appellant, v. Annette De Maria BOVE, Appellee.
    No. 76-707.
    District Court of Appeal of Florida, Third District.
    June 7, 1977.
    Rehearing Denied July 27, 1977.

      Preddy, Haddad, Kutner, Hardy & Josephs and T. G. Anagnost, Miami, for appellant.
    Fine & Brownstein, Miami, for appellee.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for National Ass’n of Independent Insurers as amicus curiae.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Defendant insurance company appeals a final judgment awarding plaintiff $16,000 for loss of unscheduled personal property due to theft involving defendant’s limits of liability under a homeowner’s insurance policy.

On April 4, 1973 the residence of plaintiff, Annette De Maria Bove, was broken into and jewelry having a value in excess of $20,000 was stolen. At the time plaintiff had in force a homeowner’s policy issued by the appellant, U.S. Liability Insurance Company, which covered loss due to theft of unscheduled property up to a total limit of $16,000. The policy also contained the following provision which is the subject matter of this action:

“2. Special Limits on Certain Property:
“a) . . .
“b) Under coverage C, this company shall not be liable for loss in any one occurrence with respect to the following property for more than:
* * * * * *
“(4) $500 in the aggregate for loss by theft of jewelry, watches, necklaces, bracelets, gems, precious and semi-precious stones, gold, platinum and furs, including articles containing fur, which represents its principal value;”
* * * * * *

Plaintiff filed a proof of loss with the defendant reciting that “a burglary” occurred at her residence itemizing her losses in excess of $26,000 and demanding $16,000, the policy limit for unscheduled personal property. Defendant rejected this demand and refused to pay in excess of $500 pursuant to the terms of the policy set out above. Thereupon, plaintiff filed a complaint seeking recovery of $16,000. At trial plaintiff made the inference for the first time that possibly more than one theft had occurred on April 4 and the trial judge entered judgment for $16,000 in favor of the plaintiff based upon the following findings:

“5) The evidence adduced clearly shows that the Plaintiff incurred losses of unscheduled personal property in excess of $16,000. The Plaintiff proved by competent evidence that the losses occurred by theft or thefts and that said theft or thefts occurred at her residence which was the residence covered under the policy in question .
“6) The Plaintiff, having presented a prima facie case for full coverage, it is incumbent upon the Defendant insuror to show that there was a limitation or exclusion in the policy prohibiting the Plaintiff from recovering the full amount. The Defendant relies on the limitation in the policy which limits recovery for loss in any one occurrence to $500 in the aggregate for loss by theft of jewelry, watches, etc.
“7) The burden of demonstrating that an exclusion or limitation in the policy applies is on the Defendant insuror. The Defendant has failed to present any evidence showing that the loss in question resulted from one theft or occurrence. It is possible that the losses were occasioned by multiple thefts.”

The court further found parenthetically that the words “$500 in the aggregate” must be interpreted to sustain the claim of indemnity and, therefore, must be construed as providing a $500 limit for jewelry generally, as well as a separate $500 limit for each of the individual sub-categories of jewelry enumerated thereunder. Defendant insurer appealed. We reverse.

Contrary to the finding of the trial court, the burden in this case is upon the plaintiff, not the defendant insurer to prove that the loss on April 4 was due to more than one theft.

A person seeking to recover on an insurance policy has the burden of proving a loss from causes within the terms of the policy and if such proof of loss is made within the contract of insurance, the burden is on the insurer to establish that the loss arose from a cause that is excepted from the policy. See Phoenix Insurance Company v. Branch, 234 So.2d 396 (Fla. 4th DCA 1970) and 18A Fla.Jur. Insurance §§ 988, 990 (1971).

There is no dispute between the parties that the theft is covered by the policy and defendant is not contending that plaintiff’s loss arose from a cause that is excepted from the policy. The phrase “in any one occurrence” sets no limit to the number of losses which the insured may claim, but merely sets a limitation on the coverage as to each loss. Thus, the plaintiff had the burden of proving more than a single theft occurred on April 4. Further, plaintiff in her proof of loss and complaint alleged only a single theft and is bound by her own allegation. See Carvell v. Kinsey, 87 So.2d 577 (Fla.1956).

The trial court erred in its “parenthetical” finding that subparagraph 2(b)(4) provides $500 coverage for jewelry generally, plus an additional $500 for each type of jewelry enumerated therein.

Where the language in insurance contract clauses is plain and unambiguous, no special construction or interpretation is required. Such language will be given that meaning which it clearly expresses. Valdes v. Prudence Mutual Casualty Company, 207 So.2d 312 (Fla. 3d DCA 1968). The subject provision clearly means $500 in the aggregate and cannot be interpreted any other way.

Accordingly, the judgment is reversed and the cause is remanded to the trial court to enter a new judgment in accordance herewith.

Reversed and remanded.


text:
    Frederick KLEIN and State Farm Mutual Automobile Insurance Company, Appellants, v. Robert C. HERRING and Pamela Herring, his wife, Appellees.
    No. 76-1495.
    District Court of Appeal of Florida, Third District.
    June 7, 1977.
    Rehearing Denied July 27, 1977.
    Talburt, Kubicki & Bradley and L. Kenneth Barnett and Robert J. Dickman, Miami, for appellants.
    Alan- Goldfarb, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendants Frederick Klein and his liability insurer, State Farm Mutual Automobile Insurance Company, appeal an order denying their motion for a new trial in this negligence action following the entry of a $20,000 final judgment in favor of plaintiff, Robert C. Herring, pursuant to a jury’s verdict.

On January 25, 1975 Robert Herring sustained injuries when the motor vehicle he was operating was struck by a vehicle driven by Frederick Klein. As a result Herring instituted the instant negligence action seeking damages against Klein and his insurer, State Farm, which had issued a policy with limits of up to $10,000. Prior to commencement of the jury trial, Klein admitted liability and damages was the only issue considered by the jury. At the conclusion of trial, the jury returned a verdict for $20,000 in favor of Herring and final judgment was entered therefor. Appellants then filed a motion for new trial on the grounds that (1) the verdict is excessive and against the manifest weight of the evidence; (2) the jury was misled by the prejudicial remarks of counsel. After hearing argument of counsel, the trial court denied the motion. Defendants Klein and State Farm appeal the denial.

Defendants first argue that plaintiff’s counsel committed several “golden rule” violations and cite as examples the following remarks:

“Any of us would be frustrated and irritable if their spare time was taken away. I know how I would feel if that was taken away from me.
# * # * * #
“Mr. Herring has had something that God has given to him taken away: a healthy, completely accident-free body. That is what he had. Something we all want. Something we all cherish.”
# * # # * *

An argument that jurors should put themselves in the plaintiff’s place, commonly known as the golden rule argument, is impermissible and constitutes reversible error. See Magid v. Mozo, 135 So.2d 772 (Fla. 1st DCA 1962). For, as the court stated in Bullock v. Branch, 130 So.2d 74, 76 (Fla.lst DCA 1961):

“It is hard to conceive of anything that would more quickly destroy the structure of rules and principles which have been accepted by the courts as the standards for measuring damages in actions of law, than for the juries to award damages in accordance with the standard of what they themselves would want if they or a loved one had received the injuries suffered by a plaintiff. In some cases, indeed, many a juror would feel that all the money in the world could not compensate him for such an injury to himself or his wife or children. Such a notice as this— the identifying of the juror with a plaintiff’s injuries—could hardly fail to result in injustice under our law, however profitable it might be deemed by many plaintiffs in personal injury suits.”

The remarks of plaintiff’s counsel, in effect, asked the jury to put itself in the place of the plaintiff and these prejudicial remarks mandate a new trial. Cf. Bullock, supra; Magid, supra; Miku v. Olmen, 193 So.2d 17 (Fla.4th DCA 1966).

Additionally, defendants argue that the statement of plaintiff’s counsel set out below, in effect, informed the jury that the subject insurance policy will cover the amount of damages which plaintiff seeks to recover:

“Think about the resources and the ability that State Farm Insurance Company has.’’

This statement made during closing argument was immediately followed by counsel's request to the jury to return a verdict for $35,000. The above remark followed by the request for a $35,000 verdict had the cumulative effect of misinforming the jury as to the actual amount of insurance coverage of which the jury should never be informed. See Peppe v. Clow, 307 So.2d 886 (Fla.3d DCA 1974).

Accordingly, the order denying motion for new trial is reversed and the cause remanded for a new trial on the issue of damages.

Reversed and remanded.

      . Objection was made to this remark, but no curative instruction was given.

      . Again we note that although objection was made and sustained, no curative instruction was rendered.


text:
    Andrew John MILAM, Appellant, v. STATE of Florida, Appellee.
    No. 75-1720.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1977.
    Rehearing Denied July 25, 1977.

      Richard L. Jorandby, Public Defender, and James R. Merola, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The state filed a two count information against Milam. The first charged him with robbing Mitchell Kane of United States currency; the second charged him with robbing Dwight Algeo of United States currency. A jury found Milam guilty on both counts.

The court entered a judgment of guilty on the first count. It imposed a sentence of thirty years. After Milam served fifteen years of that sentence, he was to be placed on probation for fifteen years.

The court entered a separate judgment of guilty on the second count. It withheld sentence on that count and placed Milam on probation for life.

On appeal Milam contends that the evidence adduced at trial was insufficient to prove either count.

Our examination of the record leads us to conclude that the evidence was insufficient to support the first count, but it was sufficient to support the second count. We therefore reverse the judgment and sentence on the first count and affirm the judgment on the second count.

Upon remand the circuit court may, if it deems it appropriate, reconsider its decision to withhold sentence in the judgment on the second count.

AFFIRMED IN PART; REVERSED IN PART, and remanded.

DOWNEY, ALDERMAN and AN-STEAD, JJ., concur.


text:
    Raymond HUTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 75-1892.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1977.
    Richard L. Jorandby, Public Defender, and Henry Prettyman, Sp. Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., and Robert L. Bogen, Legal Intern, West Palm Beach, for appellee.
   PER CURIAM.

The sentence of the trial court is modified to reduce the term of probation from three years to two years. See Holmes v. State, 843 So.2d 632 (Fla. 4th DCA 1977) and Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA 1977). In all other respects the judgment and sentence of the trial court is affirmed. See Castle v. State, 330 So.2d 10 (Fla.1976) and Article 10, Section 9, Florida Constitution.

Affirmed as modified.

CROSS, ANSTEAD and LETTS, JJ., concur.


text:
    Dewey LANIERO, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent.
    No. 76-1077.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, Appellate Division, and Tatjana Ostapoff, Legal Intern, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Appellant-defendant, Dewey Laniero, appeals a judgment of guilty and imposition of sentence entered upon a conviction for grand larceny.

Appellant was charged by information with the offense of grand larceny and adjudged guilty as charged after trial and conviction by jury. Appellant was sentenced to a term of imprisonment for five years after serving forty-two months of which appellant was to be placed on probation for three and one-half years.

The sole question presented for our determination is whether the trial court had authority to impose probation beyond the period of maximum sentence.

It is now uniformly held that although a trial judge is permitted to enter a split sentence, the combined period cannot exceed the maximum period of time provided for that particular crime. Sherman v. State, 344 So.2d 870 (Fla. 4th DCA 1977); Holmes v. State, 343 So.2d 632 (Fla. 4th DCA 1977); Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA 1977).

The offense of grand larceny, a third degree felony, is punishable by imprisonment for up to five years. Section 775.082, Florida Statutes (1975). In the instant case, pursuant to a conviction for grand larceny, appellant was sentenced to combined terms of imprisonment and probation which exceeded the maximum five-year sentence by two years. Thus the error. Accordingly, appellant’s probation is reduced to one and one-half years. McBride v. State, 311 So.2d 752 (Fla. 4th DCA 1975).

Judgment and sentence affirmed, and probation modified.

CROSS, ALDERMAN and DAUKSCH, JJ., concur.


author: CROSS, Judge.

text:
    Jack Lamar ADAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-1166.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1977.
    Richard L. Jorandby, Public Defender, and Richard S. Power, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   CROSS, Judge.

Appellant-defendant, Jack Lamar Adams, Jr., appeals an order revoking probation and imposition of sentence for possession of pethidine (meperidine), a controlled substance.

Appellant was arrested after police officers, executing a search warrant, found appellant in a room with a quantity of heroin and a pistol. An information was filed charging appellant with four counts of possession of controlled substances. Appellant pled guilty to one count, possession of pethidine (meperidine), was adjudicated guilty and placed on ten years probation. As a condition of his probation, appellant was required to complete a drug rehabilitation program. Appellant was subsequently charged with violating conditions of his probation by leaving the drug rehabilitation house before completing the program, by possessing a firearm, and for possessing heroin. Appellant filed a motion to suppress the evidence obtained in the search, which was denied. Appellant pled not guilty to the violation of probation charges. After an evidentiary hearing, the trial court revoked probation and sentenced appellant to fifteen years imprisonment. This appeal then followed.

The initial question for our determination is whether the trial court imposed an excessive sentence.

Pethidine (meperidine) is a controlled substance according to Section 893.-03(2)(b)(14), Florida Statutes (1975). A person in possession of a controlled substance is guilty of a third degree felony. Section 893.13(l)(e), Florida Statutes (1975). A third degree felony is punishable by a term of imprisonment not exceeding five years. Section 775.082(3)(d), Florida Statutes (1975).

In Florida a determination of the sentence to be imposed falls within the discretion of the trial court; the exercise of that discretion will not be disturbed if the sentence imposed does not exceed the bounds established by statute. Holden v. City of Fort Lauderdale, 286 So.2d 218 (Fla. 4th DCA 1973).

In the instant case, the maximum term for which appellant might have been sentenced was five years. After revocation of probation proceedings, the trial court sentenced appellant to fifteen years imprisonment, which exceeded the maximum five-year sentence by ten years. Thus the error. Accordingly, the sentence is reduced to five years; credit to be given for time served. McBride v. State, 311 So.2d 752 (Fla. 4th DCA 1975); Chaires v. State, 265 So.2d 529 (Fla. 1st DCA 1972).

Order affirmed and sentence modified.

MAGER, C. J., and LETTS, J., concur.


author: ANSTEAD, Judge.

text:
    William F. B. QUEENAN and Deborah Ann Queenan, Appellants, v. Michael FLYNN and Caroline Flynn, Appellees.
    No. 76-1246.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1977.
    Jack R. Blumenfeld and Alan S. Ross, of Kogan & Blumenfeld, Miami, for appellants.
    David J. Schottenfeld, of Kaplan, Jaffe & Associates, Hollywood, for appellees.
   ANSTEAD, Judge.

This is an appeal from a final summary judgment denying a claim by the appellants, William F. B. Queenan and Deborah Ann Queenan, for damages resulting from alleged fraudulent misrepresentations made by the appellees, Michael Flynn and Caroline Flynn, in connection with the sale and purchase of a house. We reverse.

The Queenans purchased a house from the Flynns. After taking possession, the Queenans allegedly discovered numerous defective conditions in the supports, flooring, walls, and roof. They claimed that the Flynns intentionally misrepresented these conditions before the sale, and as a result the Queenans were prevented from detecting the defects.

The record reveals that the condition of the house was in dispute prior to the sale and that there were numerous inspections by the Queenans and their representatives. Based on this record and the case of Davis v. Dunn, 58 So.2d 539 (Fla.1952), the trial court granted the Flynns a summary judgment.

In Davis, supra, the Supreme Court held that a purchaser is not entitled to rely on the representations of the seller where the means and opportunity to inspect the premises are equally available to both parties. In a later decision the First District recognized a necessary corollary to the Davis rule:

In essence, then, where a vendor by his actual deception, artifice, or misconduct conceals the evidence of a defective condition in such a way as to render it incapable of detection from a reasonable and ordinary inspection of the house, the vendor can no longer rely upon the purchaser’s duty to inspect because such conduct by the vendor serves to impair the purchaser’s opportunity to make a meaningful inspection.

Here, the Queenans claim actual deception on the part of the Flynns and have made such claim under oath. The record shows little support for their claims reference the roof, walls, and supports. However, we cannot ignore their sworn assertions that Mr. Flynn intentionally concealed and made false representations about the condition of the floors to prevent an inspection thereof. Some of the floors had wall to wall carpeting. The Queenans claim they were told that all of the floors were hardwood and in good condition. After occupying the house and taking up the carpeting some floors were found to be concrete and in bad condition. We believe these sworn assertions are sufficient to create a genuine issue of material fact.

Accordingly, the final summary judgment is hereby reversed for further proceedings consistent herewith.

MAGER, C. J., and LETTS, J., concur.

      . Beagle v. Bagwell, 215 So.2d 24, 26 (Fla. 1st DCA 1968).


text:
    In the Interest of D. C. T., a child.
    No. 76-1452.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1977.
    Warner S. Olds, Public Defender, 17th Judicial Circuit, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review and due consideration we are of the opinion that the record on appeal does not adequately reflect that defendant was made fully aware of his constitutional right to be represented by counsel nor does the record adequately reflect a knowing and intelligent waiver of such right. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); United States v. Garcia, 517 F.2d 272 (5th Cir. 1975); Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976); Bryan v. State, 345 So.2d 1095, Second District Court of Appeal Case, opinion filed May 6, 1977; Arnold v. State, 265 So.2d 64 (Fla. 3d DCA 1972). Accordingly, the adjudication of delinquency is reversed and the cause remanded for such other proceedings as may be consistent herewith.

REVERSED AND REMANDED.

MAGER, C. J., and ALDERMAN and ANSTEAD, JJ., concur.


text:
    STATE of Florida, Appellant, v. Sebastian (Benny) BUFFA, Appellee.
    No. 76-1889.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1977.
    Philip S. Shailer, State Atty., and Linda A. Naze, Asst. State Atty., Fort Lauder-dale, for appellant.
    P. D. Aiken, Fort Lauderdale, for appel-lee.
   DAUKSCH, Judge.

This is an Interlocutory Appeal by the State from an Order granting the Defendant’s Motion to Suppress evidence obtained by the State through a telephone wire interception.

In his Motion to Suppress, the Defendant argued that the application and affidavit for a wire interception order and the order itself were all legally insufficient and therefore fatally defective because of an error in one number of the Defendant’s street address as stated in those documents. We find that this alleged defect is nothing more than a clerical error and reverse the Order granting the Defendant’s Motion to Suppress.

All of the pertinent documents correctly identified the telephone number and the person in whose name it was listed, the Defendant herein. These descriptions were sufficient to lead a reasonable person to the proper subject of the wire interception. See U. S. v. Sklaroff, 506 F.2d 837 (5th Cir. 1975), in which an error in one digit of a telephone number was held to be no more than a clerical error in the face of other correct descriptive information.

REVERSED.

ALDERMAN and ANSTEAD, JJ., concur.


text:
    Leonard R. CORCORAN et al., Appellants, v. Sidney F. BRODY et al., Appellees. Leonard R. CORCORAN et al., Petitioners, v. Sidney F. BRODY et al., Respondents.
    Nos. 76-2156 and 76-2085.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1977.
    Jeffrey G. Wood, Icard, Merrill, Cullis, Timm & Furen, Sarasota, for appellants-petitioners.
    Bruce M. Bogin, Orlando, for appellees-respondents.
    Thomas A. Bratten, Bratten, Linn & Harris, West Palm Beach, for appellee-Florida Tennis Corp.
   DOWNEY, Judge.

Stanley F. Brody and seven other individuals brought suit as the trustees of The UMET Trust (formerly known as Unionam-erica Mortgage & Equity Trust) to foreclose a mortgage on property in Martin County, Florida. The defendants filed a motion to dismiss the complaint on the ground, among others, that the Trustees were not the proper parties to maintain the action. The circuit court entered an order denying the motion, and Corcoran and the other defendants filed a petition for writ of certiorari (Case No. 76-2085) and a notice of interlocutory appeal (Case No. 76-2156) to obtain review of that order. We consolidated the two cases for all purposes.

Of the three arguments for reversal, only one has merit. Appellants, relying upon Willey v. W. J. Hoggson Corporation, 90 Fla. 343, 106 So. 408 (1925), contend that since the note and mortgage involved in this litigation are payable to a business trust, any action on those instruments must be brought by all the members of the trust — not just the trustees.

A business trust, variously known as a common law business trust, a Massachusetts Trust, a joint-stock association, or a syndicate, is described in an extensive annotation, Massachusetts or Business Trusts, 156 ALR 22, as follows:

“a business trust is an unincorporated business organization created by an instrument by which property is to be held and managed by trustees for the benefit and profit of such persons as may be or become the holders of transferable certificates evidencing the beneficial interests in the trust estate.” At 27.

With reference to the right to sue on behalf of such a trust the general rule seems to allow suit to be maintained by the trustees of such a trust. 156 ALR at 219; 13 Am. Jur.2d, Business Trusts, § 99. But, as a result of the decision in the Willey case, Florida is often cited as an exception to the general rule.

More recently there have been several cases from the District Courts of Appeal in Florida which would seem to either distinguish Willey or narrow its application. The first of these is Boyd v. Boulevard National Bank, 306 So.2d 551 (Fla. 3d DCA 1975), which held that the trust involved was a trust organized under the laws of the State of Massachusetts, whose statutes provide that such an Association is a separate legal entity for purposes of being sued. Next, a case from this court, Your Construction Center, Inc. v. Gross, 316 So.2d 596 (Fla. 4th DCA 1975), held that one trustee of a Massachusetts trust could bring suit in his representative capacity to foreclose a note and mortgage payable solely to that trustee. A vague effort was made in Gross to distinguish the Willey case. Following the Gross case the Third District Court of Appeal decided Brickell Construction Corp. v. Pujol, 329 So.2d 340 (Fla. 3d DCA 1976), holding that the trustees of the mortgagee business trust could maintain a suit to foreclose a mortgage payable to TMC Mortgage Investors, a Massachusetts business trust. The defendant there contended:

“that the trial court committed reversible error in permitting plaintiffs to maintain this suit in that a trust is not a legal entity and, therefore, no one can sue on behalf of a name.”

The District Court affirmed denial of a motion to dismiss, citing Boyd and Gross. The final case in this series is Tampa Properties Inc. v. Great American Mortgage Investers, a Massachusetts business trust, 333 So.2d 480 (Fla. 2d DCA 1976). That suit was brought by the Trust itself without the trustees’ being named party plaintiffs. The opinion reflects that the trust had been qualified in Florida pursuant to Chapter 609, Florida Statutes, which, according to the court, distinguished that case from Wil-ley. Thus, the court held:

“Logic dictates that a common law trust authorized to transact business in Florida is the real party in interest and should be allowed to bring suit to protect its interest in this instance.”

As yet, no Florida case has held that the trustees of a business trust can maintain suit on a note and mortgage payable to a trust, absent statutory authorization in the state of its origin. But we think the Second District’s effort to distinguish Wil-ley is availing here because the complaint in the present case alleges that appellant, The UMET Trust (which was organized under the laws of California), is qualified in Florida pursuant to Chapter 609, Florida Statutes. And it appears to us that the trust involved here can very readily be made a party plaintiff by amendment.

Accordingly, the order appealed from in Case No. 76-2156 is reversed and the cause is remanded to the trial court with directions to allow appellees to amend their complaint by adding The UMET Trust as a party plaintiff and for further proceedings. The petition for writ of certiorari in Case No. 76-2085 is dismissed.

MAGER, C. J., and DAUKSCH, J., concur.


text:
    S. Hiram HENDERSON, as Administrator of the Estate of Alfred F. Fletcher, Deceased, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA et al., Appellees.
    Nos. 76-2164, 76-2165.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1977.

      Roy J. Morgan of Billings, Frederick, Wooten & Honeywell, Orlando, for appellant.
    Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellees.
   DOWNEY, Judge.

These appeals involve a construction of the Florida Wrongful Death Act.

Alfred Fletcher and his wife were killed in an automobile accident. At the time of his death he had four adult children, none of whom were dependent upon him. The personal representative of Mr. Fletcher’s estate, appellant S. Hiram Henderson, on behalf of the four children filed suit against appellee, claiming, among others, damages for loss of decedent’s net accumulations as provided for in Section 768.21(6)(a), Florida Statutes (1975).

The trial court held that, since the children in question were not dependent minors, they were not persons who could recover damages under Section 768.21(6)(a), and the court granted a partial summary judgment for appellee eliminating that element of damages from appellant’s claim.

Appellant contends that the use of the terms “lineal descendants” in Section 768.21(6)(a) indicates an intention not to restrict the beneficiaries of that section to minor children. He further argues that, if that section precludes all children, except minors, from recovering damages, it is unconstitutional. Appellee on the other hand supports the trial court’s ruling by pointing to Section 768.18(1), Florida Statutes (1975), which defines “survivors” as used in the Florida Wrongful Death Act (Sections 768.-16-768.27) as follows:

“(1) ‘Survivors’ means the decedent’s spouse, minor children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the illegitimate child of a mother, but not the illegitimate child of the father unless the father has recognized a responsibility for the child’s support.”

Section 768.21(6)(a) in pertinent part provides:

“(6) The decedent’s personal representative may recover for the decedent’s estate the following:
“(a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. If the decedent’s survivors include a surviving spouse or lineal descendants, loss of net accumulations beyond death and reduced to present value may also be recovered.”

The adult children of a decedent who are not dependent upon the decedent are not “survivors” under Section 768.18(1); therefore they are not “survivors” under Section 768.21(6)(a). Hence the trial court correctly ruled that the appellant could not recover “net accumulations” (as that term is defined in Section 768.18(5)) on behalf of the decedent’s adult children.

Appellant’s argument attacking the constitutionality of Section 768.21(6)(a) is adequately answered by the Supreme Court’s holding in White v. Clayton, 323 So.2d 573 (Fla.1971).

Accordingly, the interlocutory appeal in Case No. 76-2164 is dismissed. The judgment appealed from in the plenary appeal in Case No. 76-2165 is affirmed.

CASE NO. 76-2164 DISMISSED; CASE NO. 76-2165 AFFIRMED.

CROSS and ANSTEAD, JJ., concur.


author: RAWLS, Judge.

text:
    STATE of Florida, Appellant, v. Ernest Eugene GRIFFIN, Appellee.
    No. CC-372.
    District Court of Appeal of Florida, First District.
    June 10, 1977.
    Rehearing Denied July 11, 1977.
    See also, Fla.App., 347 So.2d 696.

      Robert L. Shevin, Atty. Gen., and Patti Englander, Asst. Atty. Gen., for appellant.
    Richard W. Ervin, III, Public Defender and Michael M. Corin, Asst. Public Defender, for appellee.
   RAWLS, Judge.

The State of Florida appeals an order dismissing an information by which it had charged Griffin with the crime of sales of controlled substances. The order dismissed the information upon the basic ground that Griffin was deprived of “speedy prosecution”.

The record and testimony adduced at the hearing on the motion to dismiss the information reveal that Jackie Smith and Robert Drummond were vice squad undercover agents and that Agent Smith was present when Agent Drummond purchased a controlled substance from Griffin on or about June 4,1975. Within 60 days after the sale on June 4, 1975, Agent Drummond was taken out of his undercover capacity and placed in open and non-secretive police work. The officers in charge of the vice squad decided to continue Agent Smith in an undercover capacity and to assign her to a drug conspiracy investigation. She continued as an undercover agent in the drug conspiracy investigation until January, 1976. The information charging Griffin with sales of controlled substances was drawn on March 30, 1976, and he was arrested on May 4,1976. The parties stipulated and agreed that during the period of June 4, 1975, until May 4, 1976, Griffin resided at the home of his mother, and he made no effort to conceal himself nor his identity from the Jacksonville Sheriff’s office.

In the order of dismissal the trial court found, inter alia:

“. . . That the apparent reason for the 11 months delay between the alleged offense and the actual arrest was concern on the part of the Vice Squad that a more timely arrest of the defendant [appellee] might result in some potential jeopardy to Agent Smith who was working undercover in another unrelated drug conspiracy investigation.
“That the supervising vice squad officers knew that Agent Smith had been present at the sale by defendant in June, 1975, and with that knowledge they decided to use Agent Smith as an undercover agent in a drug conspiracy investigation which would take months to complete. That this was a conscious choice and was fraught with possible jeopardy to either or both cases in which Agent Smith worked.
“That defendant could have been arrested solely on the testimony of Agent Drummond and there was no legal necessity to delay 11 months so that Agent Smith would be available to bolster Drummond’s testimony against the defendant.
“That as a result of the delay of 11 months from the date of the alleged offense to the date of the defendant’s arrest the defendant is prejudiced in that he has no recollection of what he was doing or where he was nor has he been able to locate any witnesses who can speak as to his actions and whereabouts on the date of the alleged crime. . .”

The factual situation evaluated by the United States Circuit Court of Appeals in Ross v. United States is analogous to those facts reviewed by the trial judge in the instant case. In reaching its decision of reversal, the majority of the Ross court emphasized that a balance must be struck between the interest of the citizen who is ultimately accused and the substantial public interest in effective police work to detect violations of the law.

In Dickey v. Florida, which involved the issue of defendant’s impairment of a fair opportunity to defend at trial, Chief Justice Burger stated: “. . . the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial.”

The Ross ease has been welcomed by legal scholars who seem to be in accord with the proposition that the prejudice to his defense which a defendant suffers due to a post-arrest delay is oftentimes indistinguishable from that which pre-arrest delay may occasion. As observed by Professor Anthony G. Amsterdam in his law review treatise entitled “Speedy Criminal Trial: Rights and Remedies”, in a quite literal sense the Sixth Amendment right to a speedy trial has today become, to borrow the words of a celebrated procrastinator, more honored in the breach than in the observance.

However, since the instant issue involves a pre-arrest delay on the part of the state, we harken to the principle of law espoused by the United States Supreme Court in United States v. Marion and its progeny which apparently hold that one who has been accused is entitled to the Sixth Amendment guarantee of a speedy trial, but one not so accused must resort to due process provisions for any federal constitutional redress against a procrastinating sovereign. Logically, speedy trial should mean a trial with speed — from the moment prosecuting authorities have completed their investigation and have reached the conclusion that a criminal citizen is aloose upon the public. But, as pointed out in footnote 8 in Marion, supra, at that time most of the federal courts of appeal recognized that the Sixth Amendment right is only available after a prosecution has been formally initiated. Thus, other than philosophical guidelines, the “speedy trial” decision of the United States Supreme Court (possibly with the exception of Dickey v. Florida, supra) are of little value to resolution of the instant issue.

The District of Columbia Circuit Court of Appeals in United States v. Jones revisited the rule as pronounced in Ross, supra, and analyzed in depth the various factors to be considered, not only in pre-arrest situations, but also Sixth Amendment speedy trial requisites. In explicating the Ross rule, the court in Jones stated:

“. . . A general pattern emerges from these cases: in each case, the police knew the whereabouts of the accused-to-be but postponed arresting him, despite his availability, in order to protect an informer or avoid revealing the identity of an undercover agent who had not yet ‘surfaced’. Mindful of the fact that such undercover investigations often continue for many months while alleged violators remain unaware that they will be charged, the Ross court cautioned that:
[i]t is always to be remembered that the [delay] is a conscious act on the part of the police. That alone does not condemn it, because the Department is motivated solely by a purpose to enhance its effectiveness in the public interest. But the Constitution contemplates a separate interest in fair procedures for the citizen faced with the loss of his liberty by reason of criminal charges. When interests of this nature impinge on each other, as they have a way of doing, they must be accommodated. A balance must be struck, if one or the other is not to be sacrificed completely.
‘Ross v. United States, 121 U.S.App.D.C. at 236, 349 F.2d at 213, quoted in Robinson v. United States, 148 U.S.App.D.C. at 62, 459 F.2d at 851.”

As the able trial judge concluded, we find that the shoe molded on the Ross last fits the instant case. The state says that United States v. Marion, supra dictates reversal. We do not so find. Marion primarily involved the question of Sixth Amendment applicability to a post-arrest situation, which factually disclosed an “on going” investigation prior to indictment. However, the court in Marion did observe that the due process clause may provide a basis for dismissing an indictment upon a showing that prosecutorial delay has prejudiced the defendant.

The authorities appear to agree, and we so hold that a pre-arrest due process deprivation cannot be quantified into a specific number of days. Many factors must be taken into consideration; among them are the reason the government assigns to justify the delay and the judicial discretion of the trial court in evaluating the circumstances. Prejudice to the accused is the most important factor in evaluating the question of due process deprivation. No matter how long the delay, if within the period of the statute of limitations, unless the accused can demonstrate that he has been prejudiced thereby, the delay, per se, will not justify dismissal.

We are not solely confronted with federal due process standards. The Constitution of the sovereign State of Florida explicitly states: “No person shall be deprived of life, liberty, or property without due process of law. . . . ” In seeking to achieve the ultimate goal of fairness as contemplated by the state’s due process clause, the Florida Supreme Court has adopted the enlightened Florida Rules of Criminal Procedure, incorporating therein specific maximum mathematical time periods in applying the state’s constitutional speedy trial provision for an accused and liberal criminal discovery proceedings in order to reach the goal of a criminal trial upon fact — not surprise. Florida due process standards in many instances exceed federal standards as defined by the United States Supreme Court.

We do not distill the time within which prosecution will be required to any given maximum number of days after the state has fully completed its investigation and is prepared to charge a defendant. Such time period as stated above must be weighed in the light of due process standards, i. e., fairness, in instances where the accused claims a foul, i. e., prejudice, by reason of the state’s inaction. And, as in any other factual contest, the alleged “foul” must be resolved by the referee, i. e., trial court, upon competent substantial evidence.

In the instant case the learned trial judge found “that as a result of the delay of 11 months from the alleged offense to the date of the defendant’s arrest the defendant is prejudiced in that he has no recollection of what he was doing or where he was nor has he been able to locate any witness who can speak as to his actions and whereabouts on the date of the alleged crime.” Prejudice to the defendant, then, as a result of prosecutorial delay has been demonstrated by competent substantial evidence.

AFFIRMED.

BOYER, C. J., and SMITH, J., concur.

      . Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965). We recognize that the Ross decision and its progeny were based upon the supervisory power which that court had over criminal trials in its circuit and that accordingly it is not a mandatory precedent for the case sub judice. However, its teachings are instructive and furnish a guide for our considerations sub judice.

      . Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970).

      . 27 Stanford L.Rev. 525 (Feb., 1975).

      . Sixth Amendment, U.S. Constitution.

      . Shakespeare, Hamlet, Act I, Scene IV, line 16.

      . United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

      . Fifth and Fourteenth Amendments, U.S. Constitution. Cf. Dickey v. Florida, supra, wherein the court “incorporated” or “absorbed” into the Fourteenth Amendment the “speedy trial” provision of the Sixth Amendment.

      . United States v. Jones, 173 U.S.App.D.C. 280, 524 F.2d 834 (1975).

      . It is noted that our sister court in State v. Freeman, 276 So.2d 546 (Fla. 4th DCA 1973), declined to apply the Ross rule to a 39-day factual situation, and had we such facts in the instant case, we would have likewise held. Their observation as to the inflexibility and inviability of the Florida statute of limitations, in our opinion, cannot stand either state or federal constitutional muster.

      . Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

      . Article I, Section 9, Florida Constitution (1968).

      . 33 Fla.Stat.Annot., Author’s comment states: “Rule 3.220 is perhaps the most comprehensive attempt in America to consolidate available and new discovery devices in criminal practice . .”


author: BOYER, Chief Judge.

text:
    Ronald B. SHUMAN, Appellant, v. STATE of Florida, Appellee.
    No. DD-146.
    District Court of Appeal of Florida, First District.
    June 10, 1977.
    Rehearing Denied July 14, 1977.
    Richard W. Ervin, III, Public Defender and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Patti Englander, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

After entering a plea of nolo contendere, specifically reserving the right to appeal, Shuman challenges the trial court’s order denying his motion to dismiss founded upon the ground that he was denied due process because of the failure by the state to “speedily prosecute”. The trial court, without entertaining defendant’s proffer, denied the motion to dismiss citing United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and United States v. Zane, 489 F.2d 269 (5th Cir. 1973).

An examination of the record reveals that appellant’s motion to dismiss alleged prejudice “as a result of the delay”. Indeed, the allegations of the motion are substantially the same as those considered by this Court in State v. Griffin, 347 So.2d 692, Opinion filed this date. Accordingly, pursuant to Griffin, this ease is reversed and remanded with directions that the trial court grant an evidential hearing on the allegations contained in the motion to dismiss. As we held in the Griffin case, however, in order for appellant to prevail on his motion to dismiss he must prove substantially more than the mere passage of time between the date of the alleged defense and the date of commencement of prosecution. He must address the factors discussed in that case, which were not intended to be exhaustive, particularly his allegation of prejudice.

We do not by this opinion hold that any of those factors have been established, but only that appellant is entitled to an opportunity so to do.

IT IS SO ORDERED.

RAWLS and SMITH, JJ., concur.


author: ANSTEAD, Judge. LETTS, Judge,

text:
    Colbert M. CHISOLM and Elizabeth K. Chisolm, husband and wife, Appellants, v. Vivian B. MAPP and Robert Mapp, Appellees.
    No. 76-559.
    District Court of Appeal of Florida, Fourth District.
    June 14, 1977.
    Rehearing Denied July 25, 1977.
    Charles R. P. Brown of Brown & Paxton, Fort Pierce, for appellants.
    James F. Littman, Stuart, for appellees.
   ANSTEAD, Judge.

This is an appeal from a judgment denying a complaint for reformation of a deed filed by the appellants, Colbert M. Chisolm and Elizabeth K. Chisolm. We remand for reconsideration.

The Chisolms took title to a parcel of property in 1974 from Jack and Martha Merrell. The Merrells had received title to the property by conveyances in 1965 and 1968 from Edward and Vivian Mapp. The Chisolms’ complaint alleged that a 15-foot strip of land had been omitted from the 1968 deed of the Mapps to the Merrells by mutual mistake.

The Merrells purchased two adjacent parcels of property from the Mapps, one in 1965 and another in 1968. The mutual mistake claimed to have occurred in 1968 creates a 15-foot strip down the middle of the total property conveyed to the Merrells by the Mapps. Mr. Mapp died in 1969. The only witness as to the 1968 transaction was Mr. Merrell, and his testimony as to Mr. Mapp’s actions and statements indicated that the 15-foot strip was omitted by mutual mistake. The heirs of the deceased, Mrs. Mapp and her son, Robert, the appellees, were not aware of the 15-foot strip until receipt of a tax bill in 1972.

The trial court declined to consider Mr. Merrell’s testimony on the Mapps’ objection that it constituted hearsay. We believe the testimony was admissible against the Mapps under the admissions exception to the hearsay rule:

Thus, whenever a party claims under, or in the interest or right of another, the declarations of such other person pertaining to the subject of the claim are admissible against him. * * * 20 Am.Jur., Evidence, § 593.

On appeal the Mapps also claim that Mer-rell’s testimony should be excluded under the Dead Man’s Statute. However, even if this was a proper objection, it has clearly been waived by the failure to assert the statute at trial. Accordingly the final judgment is hereby reversed; and the cause is remanded for reconsideration by the trial court, giving due consideration to the testimony of Jack Merrell.

CROSS, J., concurs.

LETTS, J., dissenting.

LETTS, Judge,

dissenting:

Regardless of whether or not the various testimony by buyer or sellers’ agents should have been admitted at trial, we have, at best, predictable, self serving and conflicting testimony from both sides, each proclaiming what the dead grantor intended. As against this, there is the plain unambiguous and inescapable language of a warranty deed which excluded the fifteen feet in question. Were such fifteen feet a totally illogical retention by the grantors, I might be otherwise disposed; however, the strip in question provides a direct easement, from land still owned by the grantor, to a navigable lake.

This case is analogous to Rucks v. Ansin, 198 So.2d 662 (Fla. 4th DCA 1967), where this very Court, in a similar situation, said:

A court, in exercising its discretion to grant equitable relief of reformation, must be satisfied that the applicant has demonstrated that there was a mutual mistake in the description of the property resulting in the deed not expressing the true intent of the parties. The proof required to justify such reformation must be clear and convincing and sufficient to overcome that strong presumption arising that a contract correctly expresses the intention of the parties. Sobel v. Lobel, Fla.App.1964, 168 So.2d 195.

I fail to see clear and convincing proof of a mutual mistake in the case now before us.

      . Vineberg v. Hardison, 108 So.2d 922, at 927 (Fla,3d DCA 1959). Also see Taylor v. Cory, 53 So.2d 820 (Fla.1951); Daggett v. Willey, 6 Fla. 482 (1855); Ritter v. Brengle, 185 So.2d 7 (Fla.2d DCA 1966).

      . Section 90.05, Florida Statutes (1975).


author: BARKDULL, Judge.

text:
    STATE of Florida ex rel. CITY OF MIAMI BEACH, etc., Appellant, v. METROPOLITAN DADE COUNTY WATER AND SEWER BOARD, etc., et al., Appellees. CITY OF MIAMI BEACH, etc., Appellant, v. DADE COUNTY, Florida, etc., Appellee. DADE COUNTY, Florida, a political subdivision of the State of Florida, Appellant, v. CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellee.
    Nos. 76-269, 76-1370 and 76-1276.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Rehearing Denied July 27, 1977.

      Joseph A. Wanick, City Atty. and Lee H. Schillinger, Asst. City Atty., for City of Miami Beach.
    Stuart L. Simon, County Atty., Richard M. Dunn and Stanley B. Price, Asst. County Attys., for Dade County.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   BARKDULL, Judge.

Following this court’s opinion reported as City of Miami Beach v. City of North Bay Village, 313 So.2d 126 (Fla. 3rd D.C.A. 1975); opinion rendered May 20, 1975, with rehearing denied June 18, 1975, Metropolitan Dade County, through its Board of County Commissioners, caused to be adopted in July of 1975 an ordinance authorizing the Metropolitan Dade County Water and Sewer Board to assume jurisdiction and authority over water rates charged by municipalities to customers outside of its territorial jurisdiction. The ordinance was scheduled for second reading on September 3, 1975 at 9:00 A.M. and a public hearing thereof was duly noticed on August 27, 1975. At the public hearing on September 3, 1975, the proposed ordinance was read a second time by title, pursuant to the provisions of the Metropolitan Charter. During the course of discussion and debate on the ordinance, the County Commissioners became aware that the City of Miami Beach had scheduled a hearing for 2:30 P.M. that afternoon to fix reasonable rates, pursuant to the mandate of this court in City of Miami Beach v. City of North Bay Village, supra, and upon motion duly made the Metropolitan Dade County Commission proposed to adopt an emergency ordinance extending the jurisdiction of the Metropolitan Dade County Water and Sewer Board to supervise rates charged by municipalities in the sale of water outside their geographical city limits.

Pursuant to the provisions of the County Charter, the Board of County Commissioners has the power to enact emergency ordinances provided that, after the adoption of same, the ordinance is advertised within ten (10) days thereof.

The initial ordinance was amended to add the word “emergency” alongside the title and to make the ordinance effective immediately [this ordinance was published as ordinance # 75-68 and will be referred to herein as such], whereas the proposed ordinance would have been effective ten (10) days after passage.

The City of Miami Beach proceeded with its hearing scheduled for that afternoon, and fixed a water rate to be charged for customers outside the City. Shortly thereafter a clerk of the County Commission altered the ordinance as adopted, by inserting a paragraph finding that an emergency existed and paragraphs relating to the publication of the ordinance as an emergency [this will be referred to herein as ordinance # 75-68X], Thereafter, the Metropolitan Dade County Water and Sewer Board issued a rule to show cause directed to the City of Miami Beach, preparatory to having a hearing to determine whether the water rate charged to customers outside the City limits was reasonable, pursuant to the alleged authority granted to the Board by Ordinance # 75-68. The City then instituted what it styled a “Petition for Writ of Certiorari to the Metropolitan Dade County Water and Sewer Board and Petition for Rule Nisi and for Writ of Prohibition to the Metropolitan Dade County Water and Sewer Board and for Injunctive Relief” and, on January 15, 1976, secured the issuance of a rule nisi in prohibition directed to the Metropolitan Dade County Water and Sewer Board. Upon the return day provided in the rule nisi, the trial judge conducted a hearing in which, among other things, he vacated the rule nisi and proceeded to entertain the matter as a petition for certiora-ri to review the authority of the Board to issue the rule to show cause. This order was entered on January 30, 1976.

Thereafter, the City of Miami Beach filed an independent law suit, contesting the power of the County Commissioners to enact Ordinance # 75-68 and, further, that if the County had the power they invalidly enacted the ordinance as an emergency ordinance and there was, in fact, no emergency. The trial court proceeded to a final determination and found the following as to the authority of the County to enact the ordinance:

* * * * * *
“2. The plaintiff has also raised the issue of whether Dade County is empowered and authorized by the Metropolitan Dade County Charter to regulate rates charged by municipally owned utilities to other municipalities. The Court finds that the County has the power and authority under the Charter to enact such an ordinance.”

But, the court found that the ordinance or ordinances adopted as # 75-68 and # 75-68X were invalidly adopted as emergency ordinances. The City appealed from the order vacating the rule nisi in prohibition [this is Case no 76-269 in this court]. The City also appealed from that portion of the final judgment, in its independent action, that found that Metropolitan Dade County had the power and authority, under its Charter, to enact an ordinance regulating water rates charged by the municipality outside of its territorial limits [this appeal is filed in this court under Clerk’s file No. 76-1370]. Dade County also appealed from the final judgment in this independent action, contending the trial judge was in error when he struck down ordinance # 75-68. These matters were consolidated for purposes of oral argument.

The first question to be determined is whether or not Metropolitan Dade County has the power to regulate the rate charged by municipalities for water to their customers outside of their geographical area. The County contends they have this power pursuant to the constitutional provision authorizing the establishment of Metropolitan Dade County, to wit: Article VIII, Section ll(l)(b), Constitution of the State of Florida (1885); and that the Metropolitan Charter itself contains the following provisions relative to the regulation of water rates:

sjc $ sfc $ %
“Charter of Metropolitan Dade County, Section l.Ol.a:
“9. Provide and regulate or permit municipalities to provide and regulate waste and sewage collection and disposal and water supply and conservation programs.
“14. Regulate, control, take over, and grant franchises to, or itself operate gas, light, power, telephone and other utilities, sanitary and sewage collection and disposal systems, water supply, treatment, and service systems * * *.
* jfc sf« sfc
“18. Set reasonable minimum standards for all governmental units in the county for the performance of any service or function. The standards shall not be discriminatory as between similar areas. If a governmental unit fails to comply with such standards, and does not correct such failure after reasonable notice by the Board, then the Board may take over and perform, regulate, or grant franchises to operate any such service. The Board may also take over and operate, or grant franchises to operate any municipal service if:
* * # * # *

The City responds that the power to regulate does not carry with it the power to fix the rate charged for water, citing the following authorities: State v. Burr, 79 Fla. 290, 84 So. 61 (1920); City of Winchester v. Winchester Water Works Co., 251 U.S. 192, 40 S.Ct. 123, 64 L.Ed. 221 (1920); State ex rel. Garner v. Missouri & Kansas Telephone Co., 189 Mo. 83, 88 S.W. 41.

This court has previously held, in City of Miami Beach v. City of North Bay Village, supra, that a municipality has the power to put a surcharge on water rates. Compare: Mohme v. City of Cocoa, 328 So.2d 422 (Fla.1976). This court has also previously held that Dade County had the power to enforce a water moratorium directed to municipalities. See: City of North Miami Beach v. Metropolitan Dade County, 317 So.2d 110 (Fla.1975). Considering the aims of metropolitan government, we hold that the power to regulate (as set forth in the Charter) does carry with it the power to regulate the water charges charged by a municipality to customers outside of its territorial jurisdiction and, therefore, we affirm the trial judge on this holding. See: State v. Guertin, 89 N.H. 126, 193 A. 237 (1937), wherein the following is found:

“* * * the question remains as to whether or not the powers granted include the power to regulate rates. We believe that such power is included within the meaning of the words used.
“The word ‘regulate’ is a broad one. It means ‘Adjust or control by rule, method or established mode; to direct by rule, or restriction; to subject to governing principles or laws.’ Webster, New International Dictionary. The word itself contains no suggestion of any limitation as to the features which may be regulated, and no inference of any such limitation can be drawn from the context in which it is used in the statute.”
# # * * % $

Turning next to the question of the validity of Ordinances # 75-68 and # 75-68X, which were found to be invalid by the trial judge, we first affirm the trial judge in holding that the ordinance [# 76-68X], that was altered subsequent to the public hearing by a clerk of the County Commission, is an invalid ordinance [this point was conceded by the County in argument]. Turning to the other Ordinance # 75-68, which was altered at the time of its adoption to show in its title that it was an emergency and that it was to become effective immediately, we must address ourselves, first, to the question of whether or not (if an emergency existed) it must be recited in the ordinance itself and not merely stated in the minutes of the Commission meeting. Secondly, whether the provision relative to advertisement, pursuant to the provisions of the Charter, must be included in the ordinance.

In reviewing the authorities on whether or not an emergency ordinance must include therein a statement or section declaring the emergency setting forth facts supporting the declaration, 56 Am.Jur.2d, § 353 states: “* * * Generally, the reason for enacting the ordinance must be set out therein. * * * ” However, further research indicates that a more proper statement would be that the reasons for enacting an emergency ordinance must be stated therein when the statute or charter, granting unto the governing body the power to enact emergency ordinance, requires such a statement. See: Graham v. Dye, 308 Ill. 283, 139 N.E. 390; People v. Schraeberg, 340 Ill. 620, 173 N.E. 148; McIntyre v. Commonwealth, 221 Ky. 16, 297 S.W. 931; State v. Regan, 317 Mo. 1216, 298 S.W. 747 (1927); State v. Pulliam, 37 P.2d 417 (1934); 35 A.L.R.2d 586, pp. 595, 599, §§ 4, 5. There are several Florida cases dealing with emergency ordinance, and it appears that in all but two the emergency was stated in the ordinance. State v. Dillon, 75 Fla. 785, 79 So. 29 (1918); Metropolis Publishing Company v. City of Miami, 100 Fla. 784, 129 So. 913 (1930); State v. City of Miami, 101 Fla. 585, 134 So. 541 (1931); Glackman v. City of Miami Beach, 51 So.2d 294 (Fla.1951). In those cases, the court did not expound on the issue of requiring that the statement of emergency be included in the ordinance. See: Anno. 35 A.L.R.2d 595. In one of the cited cases there was no indication as to whether or not a statement of emergency was included in the ordinance. See: State v. Keller, 129 Fla. 276, 176 So. 176 (1937). In another, while the court stated the ordinance failed to set forth the nature of the emergency therein, the court merely held it was competent under that situation to raise the question of whether or not an emergency did, in fact, exist. See: Fuller v. Gardner, 138 Fla. 837, 190 So. 442 (1939). Further research reveals two cases where enabling legislation required a statement of emergency be contained in the ordinance and, upon review, the courts held that the simple statement that an “emergency existed” constituted compliance with the enabling legislation. See: City of Roanoke v. Elliott, 123 Va. 393, 96 S.E. 819 (1918); Read v. City of Scottsbluff, 179 Neb. 410, 138 N.W.2d 471.

The Charter of Metropolitan Dade County, as it pertains to enactment of an emergency ordinance, states in Section 1.02f:

“To meet a public emergency affecting life, health, property, or public safety, the Board by two-thirds vote of the members of the Board may adopt an emergency ordinance at the meeting at which it is introduced, and may make it effective immediately, except that no such ordinance may be used to levy taxes, grant or extend a franchise, or authorize the borrowing of money. After adoption of an emergency ordinance, the Board shall have it published in full within ten days in a daily newspaper of general circulation.”

There is no requirement that the County include a statement in an emergency ordinance of what constituted the emergency and thus, under the foregoing, it would appear that it is not essential to do so. Even if such a requirement were deemed necessary, it would appear that the County, by including the word “emergency” in the title of the ordinance, would have made a sufficient declaration of emergency under the holdings in City of Roanoke v. Elliott, supra; Reade v. City of Scottsbluff, supra.

In the instant case, where all procedures to validly enact a regular ordinance had been complied with and the only effect of the emergency declaration would be to permit the ordinance to become effective immediately rather than waiting ten days, even if the emergency procedure was in error the ordinance would not be invalid but the effective date would only be postponed until the time a regular ordinance would become operative. See: Lifschitz v. City of Miami Beach, 339 So.2d 232 (Fla. 3rd D.C.A. 1976); McCall v. State ex rel. Daniels, 156 Fla. 437, 23 So.2d 492 (1945). In Lifschitz v. City of Miami Beach, supra, the following is found:

* % * * * *

“Assuming arguendo that the use of the emergency procedure was error, the trial court will not be reversed because, as stated in McCall v. State ex rel. Daniels, * * * 493-94 * * *,

* * even if the declaration of an emergency were found defective the ordinance would not, for that reason, be void, but the effective date would only be postponed until the time an ordinary ordinance would become operative.’ ”
* * # * * *•

Turning to the necessity to include provisions in an emergency ordinance relative to advertisement thereof, we once again find the requirement is only necessary where a statute or the charter requires such. See: Simmonds v. Meyn, 134 Kan. 419, 7 P.2d 506 (1932). Therefore, where in this case there is no statutory or charter requirement to include matters of publication in the emergency ordinance, it would appear that failure to do so would not render the ordinance invalid; and Ordinance # 75-68 is valid as an emergency ordinance.

Therefore, the actions of the trial judge, review of which is sought by the City of Miami Beach, are affirmed; the action of the trial judge, review of which is sought by the County, is reversed as to Ordinance # 75-68 and affirmed as to Ordinance # 75-68X.

Affirmed in part; reversed in part.

      . “Sec. 1.02. Resolutions and ordinances.

      “(C) At the time and place so advertised, or at any time and place to which such public hearing may from time to time be adjourned, the ordinance shall be read by title and a public hearing shall be held. After the hearing, the Board may pass the ordinance with or without amendment.”

      . “Sec. 1.02. Resolutions and ordinances.

      “(F) To meet a public emergency affecting life, health, property, or public safety the Board by two-thirds vote of the members of the Board may adopt an emergency ordinance at the meeting at which it is introduced, and may make it effective immediately, except that no such ordinance may be used to levy taxes, grant or extend a franchise, or authorize the borrowing of money. After the adoption of an emergency ordinance, the Board shall have it published in full within ten days in a daily newspaper of general circulation.”
      * * * # * *

      .“Sec. 1.02. Resolutions and ordinances.
      ♦ * * * sfc *
      “(E) The effective date of any ordinance shall be prescribed therein, but the effective date shall not be earlier than ten days after its enactment.”