text:
    James Leroy ALLEN, Appellant, v. STATE of Florida, Appellee. Julius Terry MULLINS, Appellant, v. STATE of Florida, Appellee.
    No. 45675.
    Supreme Court of Florida.
    Dec. 10, 1975.
    Rehearing Denied Feb. 10, 1976.
    Steadman S. Stahl, Jr., of Varón, Stahl & Kay, Hollywood, and Archie Odom, Port Charlotte, for appellants.
    Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., for ap-pellee.
   OVERTON, Justice.

These consolidated cases are- before this Court upon the constitutionality of. the riot statute, Section 870.01(2), Florida Statutes (1973), and an improper identification procedure which allegedly made an independent identification at trial impossible.

Appellant Allen was charged in a three-count information. The first two counts allege (1) an aggravated battery upon Sam Kirkland and (2) malicious injury or damage to real or personal property. The third count charged appellant with the riot offense, and reads in its entirety as follows:

“JAMES LEROY ALLEN, did then and there riot, or incite a riot, or encourage a riot.”

Appellant Mullins was charged in a four-court information. The first three counts allege (1) an aggravated battery upon Sam Kirkland,' (2) an aggravated battery upon Ralph Cunningham, and (3) resisting a law enforcement officer with violence. The fourth count charged the appellant, Mullins, with the riot offense and reads in its entirety as follows :

“JULIUS TERRY MULLINS, did then and there riot, or incite a riot, or encourage a riot.”

Each of the appellants moved to dismiss the riot count of his respective information on the grounds that:

“. . . Chapter 870.01 of the Florida Statutes is unconstitutional in that it fails to set forth sufficient information and guidelines . . . . ”

The trial court denied the motions to dismiss. The constitutional issue gives this Court jurisdiction. Having proper jurisdiction, we may proceed to dispose of all other issues properly presented in this appeal.

Appellant Allen entered a plea of nolo contendere to Count 3 charging riot, preserving “any appealable points.” Upon the plea being entered, the State nolle prossed Count 1, aggravated battery, and Count 2, malicious damage to real or personal property. Allen was sentenced to five years imprisonment.

Appellant Mullins was tried by a jury, which returned its verdict of guilty to Count 1, aggravated battery upon Sam Kirkland, and to Count 4, inciting a riot. Mullins was found not guilty of Count 2, aggravated battery upon Ralph Cunningham, and of Count 3, resisting arrest with violence. He was sentenced to five years imprisonment on each of Counts 1 and 4, with the sentences to run concurrently.

With reference to the constitutional issue, we hold the riot statute, Section 870.01(2), Florida Statutes (1973), is constitutional in accordance with our recent decision in State v. Beasley, 317 So. 2d 750 (Fla. 1975), and the restrictive construction contained therein. Under the guidelines set out in State v. Beasley, supra, the information in each of these cases is insufficient to properly charge a riot offense under Section 870.01(2), Florida Statutes (1973). The plea of nolo contendere admits, for the purpose of the case, all the facts which are well-pleaded and only those. Chesebrough v. State, 255 So.2d 675 (Fla.1971); Peel v. State, 150 So.2d 281 (Fla.App.2d 1963). The charge is not well-pled. Both defendants properly preserved the issue on appeal. Their respective convictions under the riot counts must be reversed, without prejudice to the State to file amended informations.

The second issue concerns a pretrial identification procedure which clearly was impermissible. The trial court, after an extensive hearing, ruled that the identification procedure was improper and that any evidence of such out-of-court identification would be excluded from the trial of the defendants, Allen and Mullins.

Numerous eyewitnesses at the trial of Mullins made in-court identifications, including the victim and a deputy sheriff there present in an undercover role. Viewing the trial testimony of the witnesses in its entirety, there were sufficient independent sources for the in-court identification. There is nothing in the record that shows the in-court identification was tainted by the prior improper out-of-court identification procedure. We have considered and reviewed appellants’ contention that Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), should be applied and all witnesses who viewed the appellants at the improperly conducted identification procedure should be excluded from testifying in the cause. We hold the in-court identification was admissible under this Court’s decision in Chaney v. State, 267 So.2d 65 (Fla.1972), and the decision of the United States Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The conviction of appellant-Mullins for aggravated battery is affirmed.

In summary, we reverse the convictions and sentences of Allen and Mullins on the riot counts because the information failed to properly charge a riot offense. The State may file amended informations for said offenses. We affirm the conviction and sentence of Mullins on the aggravated battery count.

This cause is affirmed in part and reversed in part, and is remanded for proceedings not inconsistent herewith.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

      . Article Y, Section 3(b)(1), Florida Constitution.

      . P. C. Lissenden Go., Inc., v. Board of County Commissioners, 116 So.2d 632 (Fla.1960).


source: Caselaw Access Project

author: SUNDBERG, Justice.

license: Public Domain

text:
    J. Ed STRAUGHN, as Executive Director of the Florida Department of Revenue, et al., Appellants, v. K & K LAND MANAGEMENT, INC., a Florida Corporation, Appellee.
    No. 46397.
    Supreme Court of Florida.
    Jan. 14, 1976.
    Rehearing Denied March 4, 1976.

      Robert L. Shevin, Atty. Gen., and William R. Cave and Larry Levy, Asst. Attys. Gen., and Michael D. Martin of Martin & Martin, Lakeland, for appellants.
    Ernest J. Rice of Lowndes, Peirsol, Drosdick & Doster, Orlando, for appellee.
   SUNDBERG, Justice.

This is an appeal from the Circuit Court of the Tenth Judicial Circuit, in and for Polk County, which entered a final judgment declaring Section 193.461(4) (c), Florida Statutes, to be unconstitutional. This Court has jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellant Straughn is Executive Director of the Department of Revenue, State of Florida. Appellant Rhoden is Tax Assessor for Polk County, Florida.' Rhoden reclassified land owned by appellee as non-agricultural by denying appellee’s application for an agricultural assessment for the year 1973. This determination by the Tax Assessor resulted in a reassessment of the subject property and a substantial increase in appellee’s tax liability.

Section 193.461(4) (c), Florida Statutes, reads as follows:

“Sale of land for a purchase price which is three or more times the agricultural assessment placed on the land shall create a presumption that such land is not used primarily for bona fide agricultural purposes. Upon a showing of special circumstances by the landowner demonstrating that the land is to be continued in bona fide agriculture, this presumption may be rebutted.”

It was upon the authority of this rebuttable statutory presumption that the Tax Assessor based his action. “Purchase price paid” is set forth by Section 193.461 (3) (b), Florida Statutes, as one of seven criteria to be considered by tax assessors in making their determination as to whether property qualifies as agricultural for purposes of the lower tax assessment. Presumably evidence tending to confirm the agricultural nature of assessable “ land, i.e. “special circumstances”, should conform to the other six statutory considerations if the presumption established by Section 193.-461 (4) (c), Florida Statutes, is to be overcome.

In the instant case, the circuit court found Section 193.461(4) (c), Florida Statutes, to be unconstitutional as (1) an unlawful delegation of legislative authority without adequate standards and guidelines and (2) a contravention of the constitutional requirement that assessment be made solely on the “basis of character or use”. The court also concluded that the land in question was on January 1, 1973 — the relevant date for purposes of classification according to use — being used for bona fide agricultural purposes as defined by Section 193.461(3) (b), Florida Statutes, and therefore it qualified for the lower agricultural tax rate. Appellant Rhoden was ordered to make his assessment reflect this determination.

We are not persuaded that Section 193.461(4) (c), Florida Statutes,'constitutes an unconstitutional effort to delegate legislative authority without proper guidelines. The phrase “special circumstances”, indicating what must be shown in order to overcome the statutory presumption at issue, should be read in pari materia with Section 193.461 (3) (b), Florida Statutes, and the seven criteria for determination of taxable status enumerated therein. These considerations, which must be weighed by local tax assessors, limit the discretion of such officials to a degree sufficient to escape constitutional infirmity. See Schechter Poultry Corp. v. United States, 295 U. S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935); Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1968); and Husband v. Cassel, 130 So.2d 69 (Fla.1961), for discussion of the constitutional requirements in this regard. Further, we believe that the phrase “to be continued” as used in the challenged statute is neither ambiguous nor otherwise likely to lead to invidious classification. It simply requires the landowner who rebuts the presumption to demonstrate that he has not abandoned a bona fide agricultural use, as at January 1 of the year in question.

Nor are we persuaded that the challenged statute is unconstitutional under Article VII, Section 4(a), Florida Constitution, which provides that “agricultural land or land used exclusively for non-commercial recreational purposes may be classified by general law and assessed solely on the basis of character or use.” It is alleged that the statutory presumption impinges upon the nature of the assessment authorized by the Constitution. We conclude, however, that the challenged statutory language affects only the classification of purportedly agricultural property, not its assessment. Further, the constitutional provision quoted above is permissive, not mandatory; that is, the Legislature could constitutionally remove the favored treatment of agricultural property, which constitutes an exception to the general constitutional mandate of full valuation for tax purposes. As we said in Rainey v. Nelson, 257 So.2d 538, 539 (Fla.1972), “[T]here is no deprivation of a property right in denying special tax treatment to this property owner since there is no ‘right’ to the special treatment in the first instance.” In Rainey, this Court went on to uphold as a valid exercise of the State’s police power Section 193.461(4) (b), Florida Statutes, which authorized county agricultural boards to reclassify lands as non-agricultural when such property is bounded by urban or metropolitan development on two or more sides and when such boards find that continued use of such property for agricultural purposes will deter orderly expansion of the community.

The test for the constitutionality of statutory presumptions is twofold. First, there must be a rational connection between the fact proved and the ultimate fact presumed. Tot v. United States, 319 U.S. 463, 466, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943); United States v. Gainey, 380 U.S. 63, 66, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). Second, there must be a right to rebut in a fair manner. Goldstein v. Maloney, 62 Fla. 198, 57 So. 342 (1911); Black v. State, 77 Fla. 289, 81 So. 411 (1919).

We find that the instant statute meets both tests. The reduced taxation for farmland is based on a legislative determination that agriculture cannot reasonably be expected to withstand the tax burden of the highest and best use to which such land might be put. The agricultural assessed value is the amount that could be invested with a reasonable expectation of an annual return to the owner similar to what he would gain from other commercial enterprises with similar risks, liquidity, degree and level of management, etc. The rational presumption imposed by the Legislature is that land purchased for three or more times its assessed agricultural value is not intended to be put to “good faith commercial agricultural use” per Section 193.-461 (3) (b), Florida Statutes, supra. Property not put to such use is not entitled to the legislatively-created exception to taxation at full value’ represented by the agricultural use tax status. But a property owner may yet overcome the presumption that land purchased at three times its agricultural value falls into the non-agricultural category. Tax assessors, and courts which review their work, can scrutinize the then status of property laid before them for evidence of “special circumstances” suggesting that the agricultural use will continue. In this effort, the six other statutory considerations set forth in Section 193.461(3) (b), Florida Statutes will be most significant. In short, a sale for a purchase price which is three or more times the agricultural assessment placed on the land creates a red flag for the assessor to re-evaluate the classification of such land as agricultural and places the burden upon the taxpayer to come forward with evidence of “special circumstances” within the framework of Section 193.461 (3) (b), Florida Statutes, to establish that the land continues to be used for “bona fide agricultural purposes”.

This statutory presumption is no exception to the general rule that presumptions are

. . decisive only in the absence of contrary evidence and must give way when in conflict with distinct and convincing proof .... [W]hen substantial evidence contrary to a presumption is introduced, the underlying facts that originally raised the presumption may or may not retain some degree of probative force as evidence, but they no longer have any artificial or technical force. In' other words, the presumption falls out of the case, and cannot acquire the attribute of evidence in the claimant’s favor.”
13 Fla.Jur., Evidence, § 76, 83-84.

Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S.Ct. 190, 193, 80 L.Ed. 229, 233 (1935); Harlem Taxicab Ass’n v. Nemesh, 89 U. S.App.D.C. 123, 191 F.2d 459, 461 (1951); Mercury Cab Owners’ Ass’n v. Jones, 79 So.2d 782, 784 (Fla.1955).

We make no determination on whether the presumption has been overcome by the testimony and evidence in this cause. We leave that determination to the trial judge who may, if he deems it necessary, allow the parties to present additional testimony on that issue.

Accordingly, the judgment is reversed, and the cause is remanded to the trial court for further proceedings not inconsistent herewith.

ADKINS, C. J., ROBERTS, BOYD, OVERTON and ENGLAND, JJ., and FERRIS, Circuit Judge, concur.

      . “Subject to the restrictions set out in this section, only lands which are used primarily for bona fide agricultural purposes shall be classified agricultural. ‘Bona fide agricultural purposes’ means good faith commercial agricultural use of the land. In determining whether the use of the land for agricultural purposes is bona fide, the following facts may be taken into consideration:
      “1. The length of time the land has been so utilized;
      “2. Whether the use has been continuous;
      “3. The purchase price paid;
      “4. Size, as it relates to specific agricultural use;
      “5. Whether an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including,' without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices;
      “6. Whether such land is under lease and, if so, the effective length, terms, and conditions of the lease; and
      “7. Such other factors as may from time to time become applicable.”


text:
    Mary WILLIAMS et al., Appellants, v. John R. JONES, as County Appraiser of Escambia County, Florida, formerly known as Tax Assessor of Escambia County, Florida, et al., Appellees. DUNES MOTEL, INC., a Florida Corporation, et al., Appellants, v. John R. JONES, as County Appraiser of Escambia County, Florida, formerly known as Tax Assessor of Escambia County, Florida, et al., Appellees. John J. LERGENMILLER, Jr., et al., Appellants, v. John R. JONES, as County Appraiser of Escambia County, Florida, formerly known as Tax Assessor of Escambia County, Florida, et al., Appellees.
    Nos. 47434-47436.
    Supreme Court of Florida.
    Dec. 17, 1975.
    Rehearing Denied March 4, 1976.

      J. McHenry Jones of Jones, Liberis & Merting, Pensacola, for appellants.
    J. B. Hopkins, Bert Lane of Beggs, Lane, Daniel, Gaines & Davis, Jack H. Greenhut, Pensacola, Robert L. Shevin, Atty. Gen., and Larry Levy, Asst. Atty. Gen., for appellees.
   SUNDBERG, Justice.

This matter is before us on direct appeal from the Circuit Court of the First Judicial Circuit in and for Escambia County, Florida. We have jurisdiction of the appeal pursuant to Article V, Section 3(b)(1), Florida Constitution, and Rule 2.1, subd. a.(5)(a), Florida Appellate Rules, in that the Circuit Court passed directly upon the validity of Sections 196.001(2), 196.-199(6) and 196.199 (7), Florida Statutes, by holding that the county appraiser properly assessed certain leasehold interests of the appellants for the three years last past for taxation as real property pursuant to the cited sections. Appellants are lessees of county-owned property from the Santa Rosa Island Authority which was created by Chapter 24,500, Special Laws of Florida 1947. The circuit judge specifically held that Sections 196.001(2), 196.199(6) and 196.199(7) do not violate the equal protection clause of the Florida Constitution or the Fourteenth Amendment of the Constitution of the United States. The sections of the Florida statute in question were enacted as a part of Chapter 71-133, Laws of Florida 1971, commonly referred to as the “tax reform act”. It should be noted at the outset that notwithstanding the fact that the Division of Statutory Revision and Indexing placed the contents of Section 196.001 at that chapter of the Florida Statutes for 1971, Section 16 of Chapter 71-133, Laws of Florida 1971, provided that Chapter 192, Florida Statutes, was to be amended by adding such new section as Section 192,010. Whereas Chapter 196, Florida Statutes, is entitled “Exemption”, Chapter 192, Florida Statutes, is entitled “Taxation, General Provisions”.

The cases herein consolidated are representative of twenty-five cases filed in the court below wherein more than 300 taxpayers intervened. The twenty-five cases were classed so as to embrace all the issues-involved and allow for the differences and the particular status of taxpayers. Basically, the taxpayers are divided into classes of commercial and residential leaseholders. The commercial taxpayers are represented by enterprises such as the operation of barber shops, plumbing businesses, beauty shops, laundries, rental cottages or rental units, motels, restaurants and campgrounds. In addition to the constitutional points raised, such commercial taxpayers assert that the operation of their facilities constitutes a governmental or public purpose or function and, accordingly, such leaseholds are exempt from ad valorem taxation pursuant to Section 196.012(5), Florida Statutes. The main thrust of the appellants’ arguments is: (i) that the leasehold interests are a category of personal property which at common law would be classified as a “chattel real” or form of intangible personal property and, therefore, must be taxed in accordance with the provisions of Chapter 199, Florida Statutes, dealing with taxation of intangible personal property exclusively by the state; (ii) that the taxation of the leasehold interests as real property violates the provisions of Article VII, Section 2 and Section 4, of the Florida Constitution, as being an unreasonable classification under the “just valuation” mandate of such Article; and (iii) that the taxation of such leaseholds as real property violates the taxpayers’ rights to equal protection under the Florida Constitution and the Fourteenth Amendment to the Constitution of the United States. The issues were framed by the appellees’ Motions to Dismiss the several Amended Complaints of the appellants. After hearing upon the Motions to Dismiss the trial judge in entering his Order of Dismissal made extensive and well-reasoned findings of fact and conclusions of law.

The appellants, subsequent to the filing of the appellees’ brief in this Court, moved to strike portions thereof relating to argument by appellees in response to an asserted attack by the appellants upon the statutes as constituting an impairment of contract rights of the appellants. Appellants contend that the issue was not raised below nor was it assigned as error. From our review of the record it appears clear that the issue was raised in the Complaints as amended and was addressed by the trial court. Be that as it may, whether the appellants concede the point or not, we deem that issue to have been disposed of adverse to the appellants by our opinion in Straughn v. Camp, 293 So.2d 689 (Fla.1974). Accordingly, the Motion to Strike of the appellants is denied.

This is the third occasion in which the taxable status of leaseholds on Santa Rosa Island has been before this Court. See State v. Escambia County, 52 So.2d 125 (Fla.1951), and Straughn v. Camp, supra. The factual background and legislative history concerning the special and general acts establishing the authority for development of Santa Rosa Island and the tax treatment of leaseholders on the Island is aptly set forth in Straughn v. Camp, supra and we deem it unnecessary to reiterate that background here.

The questions presented by the instant appeal essentially are: Does the Legislature have the power constitutionally to treat leasehold interests in public land such as are here involved as real property for ad valorem tax purposes and, secondly, has the Legislature done so through the enactment of the statutory provisions here under attack? We answer both propositions in the affirmative.

As to the power of the Legislature to so legislate, the words of Mr. Justice Terrell on rehearing in the case of Bancroft Inv. Corporation v. City of Jacksonville et al., 157 Fla. 546, 27 So.2d 162 (1946), provide a guiding principle concerning the function of the Court in reviewing the exercise by the Legislature of its taxing power when he stated at page 170 of the opinion:

“ . . . We approach it on the premise that this is a democracy in which every parcel of property is expected to bear its due portion of the burden of government, unless exempted by the legislature in the manner provided by Section 1, Article IX of the Constitution. Courts have no more important function than to direct the current of the law in harmony with sound democratic theory.”

In that case the Court, on rehearing, determined that the equitable interest of a purchaser of certain real property in Jackson-' ville, Florida, from the United States Government under an executory contract for sale was a sufficient interest in real estate to justify levy of ad valorem real estate taxes thereon.

Appellants’ assertion that the classification of a leasehold interest in public land as an interest in real estate violates the provisions of Section 2, Article VII, Constitution of Florida, is, we believe, untenable. That section merely provides that all ad valorem taxation shall be at a uniform rate within each taxing unit, subject to certain exceptions with respect to intangible personal property. The predecessor to Article VII, Section 2, was Article IX, Section 1, in the Constitution of 1885. That document required a “uniform and equal rate of taxation”. The words “and equal” in the 1885 Constitution have been displaced in our current Constitution with the phrase “within each taxing unit”. Such revision was simply for the sake of clarity. See commentary to Article VII, Section 2, Constitution of Florida, 26A F. S.A. Consequently, cases construing the former Article IX, Section 1, are relevant to an inquiry under Article VII, Section 2, of our present Constitution. In analyzing the restrictions upon the Legislature imposed by the former constitutional provision, this Court stated in Hayes v. Walker, 54 Fla. 163, 44 So. 747 (1907):

“Classifications for purposes of legislation may be made with reference to similarity of situation, circumstances, requirements, and convenience to best sub-serve the public interest. The test as to the validity of classifications for purposes of legislation is good faith, not wisdom.”

The rate of the tax imposed by Section 196.001(2), Florida Statutes, is uniform as to all leaseholds of public property enumerated therein. The section under consideration does not apply non-uniformly in one political subdivision of the State of Florida as opposed to another. In that it applies similarly to all under like conditions, it cannot be said that such classification is arbitrary, unreasonable or unjustly discriminating.

By the same token appellants’ attack upon the Legislature’s ability to so classify under Article VII, Section 4, Florida Constitution, must fail. Article VII, Section 4, provides as follows:

“By general law regulations shall be prescribed which shall secure a just valuation of all property for ad valorem taxation, provided:
“(a) Agricultural land or land used exclusively for non-commercial recreational purposes may be classified by general law and assessed solely on the basis of character or use.
“(b) Pursuant to general law tangible personal property held for sale as stock in trade and livestock may be valued for taxation at a specified percentage of its value.”

The limitation imposed by the foregoing section was clearly intended to be a check upon the Legislature so as to prohibit it from classifying property for ad valorem taxation in such a manner as to result in a valuation of any class of property at less than just value, subject to the provisos of subsections (a) and (b). In short, the clear intent of the revisers of the Constitution was to prohibit the Legislature from making only those classifications which would result in some property being taxed at less than its just value, except for the categories enumerated in subsections (a) and (b). The classifications created by Section 196.001(2) and Section 196.199, Florida Statutes, result in the holders of leases of publicly owned lands bearing their fair share of the tax burden, thus placing them on a parity with other real property in the private sector devoted to similar uses. Certainly the statutes under consideration do not mandate that the taxpayers’ leasehold interest be assessed at less than or a percentage of just value. This proposition has been recognized in the case of Straughn v. Amoco Production Company, 309 So.2d 39 (Fla.App.2d 1975) where the court there had under consideration Section 193.481(1), Florida Statutes, relating to oil and mineral leases. There the court said:

“The questions remain, however, whether the legislature can tax a 'leasehold interest as an estate in realty and, if so, whether it did so here. Ordinarily, leasehold interests in private real property are not amenable to ad valorem taxes. We are aware of no reason, however, why they cannot be if the legislature clearly so ordains and such classification is a reasonable one considering the purpose. Indeed, our Supreme Court expressly recognized oil and mineral leases as being exceptions to the general rule in Dade County v. Pan American World Airways, Inc.” (Footnotes omitted)

The same conclusion was reached by this Court in the case of Park-N-Shop, Inc. v. Sparkman, 99 So.2d 571 (Fla.1957), where the Court, confronted with the character of a commercial leasehold interest in property owned by Hillsborough County, determined that such an interest was neither tangible personal property nor intangible personal property, but concluded:

“In our examination of the tax statutes we have not found provisions for the specific assessment of the lessees’ interest and we have been referred to none, although we are not conscious of any reason why the legislature could not set up machinery for that purpose in situations such as that presented in this case, but we are satisfied that the interests of lessees are neither tangible nor intangible personal property as presently defined.” (p. 574)

Appellants rely heavily on the case of Interlachen Lakes Estates, Inc. v. Snyder, 304 So.2d 433 (Fla.1973), wherein the Court had under consideration Section 195.062(1), Florida Statutes, commonly referred to as the “Rose law”, which provided in pertinent part:

“ . . . [The tax assessor’s manual of instructions] shall provide that platted lands unsold as lots shall be valued for tax assessment purposes on the same basis as any unplatted acreage of similar character until 60 percent of such lands included in one plat shall have been sold as individual lots.”

Justice Ervin, for the Court, concluded that such valuation was- impermissible under Article VII, Section 4, Florida Constitution, because it provided for valuation of a class of property at less than just value, such property being not one of the classes within the provisos to Article VII, Section 4, i. e. agricultural land, land used exclusively for non-commercial recreational purposes, tangible personal property held for sale as stock in trade, or livestock. This case stands for the proposition only, then, that the Legislature is precluded from classifying property for valuation purposes at less than just valuation except in the instances of the provisos to Article VII, Section 4. The result obtained through application of Sections 196.001(2) and 196.199, Florida Statutes, is to require that the leasehold interests defined therein shall be taxed at a just valuation like “all other property” in the state. To accept the appellants’ contention that the Legislature is without power to so classify such leasehold interests as real property would not only result in such leasehold interests being taxed on the reduced intangible personal property ad valorem rate but would also deprive the political subdivisions wherein the leaseholds are situated from raising revenues from such sources in order to defray the costs of the services supplied to the users thereof, services which include, especially, the education of the children of such users. The holder of a lease on Santa Rosa Island requires no less police protection, fire protection or education of his or her children than does his or her neighbor in the county who occupies under a fee simple title. But if appellants’ argument is accepted the revenues derived from the tax of a leasehold as intangible personal property must constitutionally be paid into the coffers of the state rather than the local political subdivision. . See Article VII, Sections 1 and 9. The Legislature clearly has the power to classify so that all property devoted to private use is treated on a parity and, therefore, there is an equitable distribution of the tax burden. Basically, the appellants contend for a constitutional exemption from ad valorem real estate taxation where none exists and, if it did, such an exemption would undoubtedly be discriminatory and violative of the equal protection provisions of the Florida and United States Constitutions.

Which brings us to the assertion by the appellants that the statutory sections under attack are discriminatory as to them and deprive them of the equal protection mandated by the Florida Constitution and the 14th Amendment to the United States Constitution. Such assertion must be rejected because it has been long recognized that the Legislature, within developed constitutional limits, has broad powers of classification for taxation purposes so as to bring about a fair contribution by all property interests to the tax burden necessary to provide the revenues for the functioning of government. As stated by Mr. Justice Roberts in Just Valuation & Taxation League, Inc. v. Simpson, 209 So.2d 229 (Fla.1968), where the separate classification of intangible personal property was under attack, “ . . . Decisions by the federal courts recognizing the power of the state to classify property for the purpose of taxation are legion- . . . ” The United States Supreme Court cases cited in his opinion are clearly representative of the cases reflecting that there is no United States constitutional prohibition against the exercise of broad powers of classification by a state legislature for purposes of taxation.

In determining whether the classification by a state legislature is reasonable, the United States Supreme Court has looked to the practical operation of the tax. As stated in American Oil Company v. Neill, 380 U.S. 451, 85 S.Ct. 1130, 14 L. Ed.2d 1 (1965);

“When passing on the constitutionality of a state taxing scheme it is firmly established that this Court concerns itself with the practical operation of the tax, that is, substance rather than form. (Citations omitted) This approach requires us to determine the ultimate effect of the law as applied and enforced by a State or, in other words, to find the operating incidence of the tax.”

The practical effect of Sections 196.001(2) and 196.199, Florida Statutes, is to withdraw exemption from certain users of property and to impose an ad valorem real property tax upon them consistent with the tax imposed upon persons who make similar uses of property.

The proposition put forth by the appellants with respect to leaseholders of commercial property to the effect that they are exempt under Section 196.012(5), Florida Statutes, as performing a public purpose has, we believe, been aptly disposed of in Straughn v. Camp, supra. As stated therein at page 695:

“It is the utilization of leased property from a governmental source that determines whether it is taxable under the Constitution. Furthermore, tax exemptions should be strictly construed against the claimant. State v. Inter-American Center Authority (Fla.1955) 84 So.2d 9. Reference is made particularly to Rast v. Hulvey, 77 Fla. 74, 80 So. 750, holding that where property was not being used solely for educational purposes, but was used also as a home by an individual and -his family, it was not exempt from taxation. To the same effect see Amos v. Jacksonville Realty and Mortgage Co., 77 Fla. 403, 81 So. 524; Orlando Utilities Commission v. Millican [Milligan] (DCA 4 1969), 229 So.2d 262; State ex rel. Miller v. Doss, 146 Fla. 752, 2 So.2d 303; State v. Town of North Miami (Fla.1952) 59 So.2d 779, text 784; Ad ams v. Housing Authority of City of Daytona Beach (Fla.1952) 60 So.2d 663 and Hillsborough County Aviation Authority v. Walden, supra [210 So.2d 193].”

The operation of the commercial establishments represented by appellants’ cases is purely proprietary and for profit. They are not governmental functions. If such a commercial establishment operated for profit on Panama City Beach, Miami Beach, Daytona Beach, or St. Petersburg Beach is not exempt from tax, then why should such an establishment operated for profit on Santa Rosa Island Beach be exempt? No rational basis exists fon such a distinction. The exemptions contemplated under Sections 196.012(5) and 196.199(2) (a), Florida Statutes, relate to “governmental-governmental” functions as opposed to “governmental-proprietary” functions. With the exemption being so interpreted all property used by private persons and commercial enterprises is subjected to' taxation either directly or indirectly through taxation on the leasehold. Thus all privately used property bears a tax burden in some manner and this is what the Constitution mandates.

Having established that the Legislature has the power constitutionally to tax the leasehold interests in question as real property, we turn to the question of whether or not it has done so. Appellants submit that even if such leasehold interests are not exempt under Sections 196.-199(2) (a) and 196.012(5), Florida'Statutes;, that the tax imposed by Section 196.001(2)', Florida Statutes, is merely an ad valorem intangible personal property tax because none of the statutory provisions relied-, upon by the appellees expressly state that the leasehold estates in question are to be taxed “as an interest in real property”; The appellants cite numerous cases from many jurisdictions to the effect that at common law a leasehold interest is considered as a “chattel real” or a species of personal property. It should be noted, however, that each of the two Florida cases cited by appellants as authority for their position, Thalheimer v. Tischler, 55 Fla. 796, 46 So. 514 (1908) and Oliver v. Mercaldi, 103 So.2d 665 (Fla.App.2nd 1958), states the rule that in the absence of a statute changing the common law rule a leasehold estate is a “chattel real” and is to be classed as personalty rather than realty. In construing the provisions of Section 73.-10(4), Florida Statutes, in 1962 the Second District Court of Appeal in the case of State Road Department v. White, 148 So.2d 32 (Fla.App.2nd 1962), cert. discharged, 161 So.2d828 (Fla.1964) opined:

“Turning to the law on the subject of ownership interest by a lessee, we find that, in the law of real property, it is well established that a valid lease for a term of years is a conveyance of an -interest in land. Flowers v. Atlantic Coast Line Railway Co., 1939, 140 Fla. 805, 192 So. 321; Campbell v. McLaurin Investment Co., 1917, 74 Fla. 501, 77 So. .277. A lessee’s interest in a leasehold estate is thus stated: ‘During the life of a lease, the lessee holds an outstanding leasehold estate in the premises, which for all practical purposes is equivalent to absolute ownership. The estate of the lessor during such time is limited to his rever-sionary interest, which ripens into perfect title at the expiration of the lease.’ Rogers v. Martin, 1924, 87 Fla. 204, 99 So. 551, 4th Headnote. In the case of DeVore v. Lee, Comptroller, 1947, 158 Fla. 608, 30 So.2d 924, it is stated: ‘A lease has been defined as “ ‘a conveyance by the owner of an estate to another of a portion of his interest therein for a term less than his own’ ” and “it passes a present interest in the land for the period specified.” ’ In the law of - eminent domain, a lessee for years under a written lease is an owner of property in the constitutional sense, and is entitled to share in the compensation when all or a part of the leased property is taken during the period of the lease. 12 Fla.Jur., Eminent Domain, Sec. 91, Leasehold Interests, page 63.”

Section 73.10(4), Florida Statutes, nowhere referred to a lease or leasehold interest, but permitted the jury in a condemnation proceeding to take into consideration damages to an established businees of more than five years’ standing “owned by the party whose lands are being so taken, located upon adjoining lands owned or held by such party”. Accordingly, for purposes of condemnation award it has been concluded by the courts of this state that a leasehold interest is a species of real property under a statute that did not expressly so state. The predecessor to Subsection 196.001(2) and Section 196.199, Florida Statutes, enacted in 1971, was Section 196.-25, Florida Statutes, enacted in 1969, which in turn was a verbatim reenactment of Section 192.62, Florida Statutes, enacted in 1961. Section 196.25, Florida Statutes, provided in pertinent part as follows:

“(1) Any real or personal property which for any reason is exempt or immune from taxation but is being used, occupied, owned, controlled or possessed, directly or indirectly by a person, firm, corporation, partnership or other organization in connection with a profit making venture, whether such use, occupation, ownership, control or possession is by lease, loan, contract of sale, option to purchase or in any wise made available to or used by such person, firm, corporation, partnership or organization, shall be assessed and taxed to the same extent and-in the same manner as other real or personal property.
“(2) This section shall not apply to property described in subsection (1) when:
« * *
“(c) The property is owned or used by the state, any county, municipality, or public entity or authority created by statute and is leased or otherwise made available to such person, firm, corporation, partnership or organization by such public body for a consideration in the performance by the public body of a public function or public purpose authorized by law, or which property prior to the effective date of this section was leased for valuable consideration for purposes not otherwise exempt hereunder; . .

Section 192.62, Florida Statutes, was obviously enacted in 1961 by the Legislature in response to the Court’s observation in Park-N-Shop, Inc. v. Sparkman, supra, that a leasehold interest in publicly owned land was neither tangible nor intangible personal property but that there was no reason why the Legislature could not set up machinery to tax such a leasehold interest. See footnote 3 to the majority opinion in Dade County v. Pan American World Airways, Inc., 275 So.2d 505 (Fla.1973). That decision also recognized, in footnote 8, that the exemption contained in Section 196.25, Florida Statutes, repealed in 1971, is covered in the present Section 196.199, Florida Statutes, enacted in 1971 as a part of Chapter 71-133, Laws of Florida 1971.

Section 192.62, Florida Statutes, was expressly construed by this Court in Hillsborough County Aviation Authority v. Walden, 210 So.2d 193 (Fla.1968), wherein we approved the determination by the trial court that the leasehold interest of a motel operator from the Aviation Authority, a tax-exempt body, was a separate, distinct interest in such property and was amenable to assessment and taxation as real estate to the lessee, which was using such property for a predominantly private purpose. In the Walden case, supra, the lessee asserted that it performed a public purpose or function and should thereby enjoy an exemption from taxation upon the same principle as the appellants here contend that they are exempt under Subsection 196.012(5), Florida Statutes. It will be observed that Section 192.62, Florida Statutes, although using the term “lease” simply says that such use shall be assessed and taxed to the same extent and in the same manner as other real or personal property. Accordingly, it required interpretation by the Court to conclude that the leasehold interest in question was to be taxed as real property and conclusively reflects that this Court has accepted that proposition. In his dissent in Dade County v. Pan American World Airways, Inc., supra, Mr. Justice Ervin discarded as without merit the contention by the airline that its leasehold interests, if taxable, were only taxable as intangible personal property. He cited as authority therein Hillsborough County Aviation Authority v. Walden, supra, and State Road Department v. White, supra. In Straughn v. Camp, supra, Justice Ervin stated at page 695 of the opinion:

“The plaintiffs (appellees) admit that the great majority of their leases are those wherein an individual lessee is occupying and enjoying a private home for the use and benefit of the lessee and his or her family. Hillsborough County Aviation Authority v. Walden, supra, construed the predecessor law (F.S. Section 192.62, F.S.A.) to Chapter 71-133 and held that despite exemption of prior leases, an airport authority lease for a motel at an airport is taxable. It is obvious that holding is applicable here.” (Emphasis supplied)

The language in Justice Ervin’s dissent in Dade County v. Pan American World Airways, Inc., supra, makes clear that the emphasized language quoted just above refers to a lease for a motel at an airport being taxable as an interest in real property.

Our conclusion is further buttressed by the principle of statutory construction which provides that the Legislature is presumed to know the existing law when it enacts a statute and is also presumed to be acquainted with the judicial construction of former laws on the subject concerning which a later statute is enacted. See 30 Fla.Jur., Statutes, Section 110, page 270, and Collins Investment Co. v. Metropolitan Dade County, 164 So.2d 806 (Fla.1964). With this rule of construction in mind we can only conclude that the Legislature was aware of the development of the law in this area from Park-N-Shop, Inc., supra, through Hillsborough County Aviation Authority v. Walden, supra, when it enacted the series of statutes hereinabove considered (192.62, 1961; 196.25,1969; and 196.001(2) & 196.199 (1971). Therefore, in treating with exemptions in Chapter 71-133, Laws of Florida 1971, the Legislature deemed it only necessary to provide that leasehold interests in public lands shall no longer enjoy exemption from ad valorem taxation except under the limited circumstances therein prescribed. The rule is that all property is subject to taxation unless expressly exempt and such exemptions are strictly construed against the party claiming them. State ex rel. Wedgworth Farms, Inc. v. Thompson, 101 So.2d 381 (Fla.1958).

Appellants contend that Section 196.001, Florida Statutes, cannot be construed to impose the tax herein asserted in that it appears in the chapter on exemptions. As heretofore alluded to, the Legislature by Section 16 of Chapter 71-134, Laws of Florida 1971, directed that the provisions of Section 196.001 be incorporated in the statutes as Section 192.010 bearing the heading “Property Subject to Taxation.” The placement by the Statutory Revision and Indexing Division of such provisions in the chapter on exemptions cannot affect the intent of the Legislature as expressed in Chapter 71-133, Laws of Florida 1971.

Our attention has not heretofore focused upon Subsection (6) of Section 196.199, Florida Statutes, which reads:

“Property which is originally leased for 99 years or more, exclusive of renewal options, shall be deemed to be ‘owned’ for purposes of this section.”

Since Subsection (2) (a) of Section 196.-199, Florida Statutes, effectively removes from the exemption afforded property owned and used by the designated governmental units all leasehold interests which do not serve or perform a governmental, municipal, or public purpose or function as defined in Section 196.012(5), regardless of the length of the lease, it must be concluded that Subsection (6) dealing with 99-year leases was intended by the Legislature to provide a standard for valuation. Leases for an initial term of less than 99 years are to be valued based on the economic value thereof taking into consideration, among other things, the duration of the unexpired term of the lease, while in the case of leases for an initial term of 99 years or more the lessee may be considered to be the owner “in fee simple” and the property subject to the lease shall be valued for tax purposes as all other property owned in fee simple. Since a lease for a term of 99 years or more is tantamount to ownership of the fee, we do not construe this to be an unreasonable classification by the Legislature. The Constitution employs a similar standard in the Homestead Exemption provision found in Article VII, Section 6, Florida Constitution.

Appellants also contest the procedure for enforcement of the tax as found in Section 196.199(7), Florida Statutes. We do not concur in appellants’ objection. Since the fee simple title to the property subject to lease cannot be reached or attached to satisfy the tax indebtedness, the cited section substitutes other property of the taxpayer and allows for recovery by way of an action against the taxpayer. The manner of securing collection of taxes is purely a legislative matter not to be disturbed by the Court unless constitutionally defective. The procedure for collection and enforcement embodied in Section 196.-199(7), Florida Statutes, is consistent with the nature of the property being taxed and is a legislative determination resting within the legislative power. The rule is thus stated in 84 C.J.S.Taxation § 644, at page 1323:

“While it has been stated as a general proposition that, unless other provision is made, a tax on property is collectable only from the property assessed, it has been recognized that it is within the power of the state to make one class or kind of property responsible for taxes levied and assessed against another kind or class of property, and, under constitutional or statutory provisions, a tax may be collected not only from the property against which the levy was made, but also from property other than that against which the tax was levied, and any property of a person against whom a tax has been levied may be subject to process for the collection of the tax. . . . ” (Footnotes omitted) (Emphasis supplied)

And at pages 1319-20 it is stated :

“. . . On the other hand, in many jurisdictions the owner of real estate is personally liable fo'r taxes levied on the property, and this is true notwithstanding the existence of a lien on the property for the collection of the taxes. Personal liability may exist even in the absence of any provision for obtaining a personal judgment for such taxes . ” (Footnote omitted) (Emphasis supplied)

The foregoing principles are consistent with the collection procedures imposed by Section 199.262, Florida Statutes, dealing with intangible personal property tax.

In response to the suggestion by appellants that a charge in lieu of taxes was taken into consideration in establishing the rent paid by the lessees we would simply say that if such is the case such lessees may very well be entitled, in a proper forum, to seek an equitable adjustment of their rental payments which would recognize any proven charge incorporated therein which was intended to be in lieu of taxe.

We find no justification for prospective operation of this decision in that we do not find the same state of facts here as relied upon by Mr. Justice Ervin in In-terlachen Lakes Estates, Inc. v. Snyder, supra. There the majority found that persons relied on a state statute assuming it to be valid despite the new provisions of the 1968 State Constitution. Nor do we find equitable estoppel present as in the case of City of Naples v. Conboy, 182 So.2d 412 (Fla.1965). In each of those cited cases the taxing authorities acted in accordance with a statute or ordinance and thereby undervalued the property of the taxpayers, thus presumably, lulling the taxpayers into a sense of reliance upon the invalid provisions. In the instant case the taxing authorities have consistently assessed the leasehold interests as real property in accordance with Section 196.001, Florida Statutes, subsequent to its enactment into law in 1971 and have in nowise misled the taxpayers concerning the interpretation of the law. Prior to the enactment of Chapter 71-133, Laws of Florida 1971, in fact since 1961, the general laws of Florida explicitly designated leaseholders on Santa Rosa Island as exempt from taxation. However, Chapter 71-133, Laws of Florida 1971, just as explicitly eliminated their des^ ignation for exemption. Any reliance upon the interpretation of Chapter 71-133, Laws of Florida 1971, espoused by appellants herein cannot be deemed, to be the sort of reasonable reliance which should move this Court to apply this decision only prospectively.

Accordingly, the orders appealed from are affirmed.

ADKINS, C. J., ROBERTS, BOYD, OVERTON and ENGLAND, JJ., and FERRIS, Circuit Judge, concur.

      . Although the parties in their briefs assume all of the leaseholds involved in the litigation are for an initial term of 99 years, the record in Joe E. Barnes, etc. r. John R. Jones, etc., et al., reflects by Exhibit C attached to the Complaint that at least one of the leases is for an initial term of only 25 years.


author: HATCHETT, Judge. ENGLAND, Justice

text:
    AMERICAN SIGHTSEEING TOURS, INC., et al., Petitioners, v. William H. BEVIS et al., Respondents. GREYHOUND LINES, INC., Petitioner, v. William T. MAYO et al., Respondents.
    Nos. 46932, 47045.
    Supreme Court of Florida.
    Jan. 8, 1976.
    Rehearing Denied Feb. 18, 1976.

      John P. Bond, Murray H. Dubbin and Phillip Schiff, of Dubbin, Schiff, Berkman & Dubbin, Miami, for American Sightseeing Tours, Inc.
    John H. Wilbur, of Milam & Wilbur, Jacksonville, for Greyhound Lines, Inc.
    Prentice P. Pruitt and Jerry M. Johns, Tallahassee, for respondents.
    James W. Crabtree, of Smathers & Thompson, Miami, for Gray Line Sightseeing Tours, Inc.
    Richard B. Austin, of Law Offices of Richard B. Austin, Miami, for Executive Bus Services, Inc.
    William C. Martin, III, of Akerman, Senterfitt, Eidson & Wharton, Orlando, for Tamiami Trial Tours, Inc.
   HATCHETT, Judge.

Petitioners here participated as intervening protestants in certain Florida Public Service Commission (PSC) proceedings, Docket No. 73797-CCB, in opposition to an application by Executive Bus Service, Inc. (Executive) for authority to transport passengers in Dade, Broward and Palm Beach Counties. As carriers already authorized to operate in the same area, petitioners seek to overturn the PSC’s award to Executive of a certificate of public necessity and convenience. The constitution confers on this Court jurisdiction to “issue writs of certiorari to commissions established by general law having statewide jurisdiction.” Fla.Const, art. V § 3(b)(3) (1973). See Rule 4.1, Florida Appellate Rules, 1962 Revision; Fla.Stat. § 350.641(1) (1973). Because petitioners advance substantially the same arguments, we have consolidated their petitions for writ of certiorari. We grant the writ, quash PSC Orders Nos. 11755 and 11939, and remand for the taking of additional evidence.

Executive applied for authorization to transport passengers in minibuses with bilingual drivers (a) from points in Dade, Broward and Palm Beach Counties to the Pompano Beach Harness Track on a regular basis; (b) between Miami and Palm Beach with intermediate stops on a regular basis; and (c) on a charter basis from stops served on a regular basis. In Order No. 11,755, the commission denied the first portion of Executive’s application (a) and denied authority for charters (c), but issued a certificate of public convenience and necessity, No. 1194, authorizing Executive to transport passengers on a regular basis between Miami and Palm Beach, with intermediate stops (b). On petitions for reconsideration, the commission reversed itself by granting authority for charters (c) in Order No. 11,939. In Order No. 11,939, the PSC upheld its original grant of authority as to regular service between Miami and Palm Beach.

Decision of the present case turns on whether Executive adduced substantial, competent evidence sufficient to justify the PSC’s award to it of authority to transport passengers, in minibuses with bilingual drivers, between Miami and Palm Beach on a regular basis. We conclude that the PSC acted on insufficient evidence in granting this authority; it follows that the grant of charter authority must also be set aside, because a grant of charter authority cannot stand alone. The rule is:

In no event may the commission grant charter rights except in conjunction with the grant of regular route certificates to motor common carriers of passengers. FlaStat. § 323.14(2) (1973).

We do not reach the question of the PSC’s denial of regular authority to transport passengers to the harness track, inasmuch as Executive filed no petition for writ of certiorari; nor, in this Court, has Executive otherwise called into question the PSC’s decision denying the first portion of its application.

Only four witnesses testified specifically in support of the portion of Executive’s application by which it sought authority to transport passengers between Miami and Palm Beach, with intermediate stops. Each witness spoke Spanish and was from Miami; one did not actually testify but adopted the testimony of another. Of the remaining three, two had never ridden on a bus from Miami to Palm Beach or any intermediate point and had no plans to do so. The final witness, who ordinarily relied on his own car for transportation, had used bus service once or twice during the gasoline shortage. Their testimony, given through an interpreter, was to the effect that Spanish speaking persons not fluent in English could not easily communicate with bus drivers who spoke no Spanish; so that for them travel on buses was difficult and might mean getting lost. The fact the witnesses themselves did not ride buses showed the need for bilingual drivers, Executive argued.

After taking evidence, the PSC hearing examiner recommended denial of Executive’s application in this, as in all other respects. As indicated above, the commission followed the examiner’s recommendation in the present case as to the harness track route but disregarded the recommendation otherwise. The PSC is free to give what weight it chooses to recommendations of its hearing examiners. Sentinel Star Express Company, d/b/a Jack Rabbit Express v. The Florida Public Service Commission, 322 So.2d 503 (Fla.1975). We must decide whether there is substantial, competent evidence to support the commission’s findings. Gulf Oil Co. v. Bevis, 322 So.2d 30 (Fla.1975); DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla.1957); Florida Motor Lines, Inc. v. State Railroad Commission, 101 Fla. 1018, 132 So. 851, 862 (1931). This is not a matter of simply choosing beween the PSC’s findings and those recommended by its examiner. Florida Limousine Service, Inc. v. Florida Public Service Commission, 317 So.2d 742 (Fla.1975). We are bound by the PSC’s findings of fact where substantial, competent evidence supports those findings, even in a case where the preponderance of the evidence, in our view, supports contrary recommendations by a hearing examiner. In the present case, however, we conclude that the meager evidence adduced to show a need for bilingual drivers over routes already heavily travelled is insufficient to justify the PSC’s action.

We grant the petition for writ of certiorari and quash Orders Nos. 11755 and 11939 on account of the lack of substantial evidence to support the PSC action. But we do not question the proposition that it is within the PSC’s power to require a public utility to make available Spanish speaking personnel, where there has been an adequate showing that the public convenience and necessity so require; and, accordingly, we remand “without prejudice for further hearings before the Commission for the purpose of allowing the applicant an opportunity to present additional competent evidence to sustain its application.” Wells Fargo Armored Service Corporation of Florida v. Bevis et al., (Fla.1975), 320 So.2d 813.

It is so ordered.

ADKINS, C. J., and ROBERTS and SUNDBERG, JJ., concur.

ENGLAND, J., concurs with an opinion.

ENGLAND, Justice

(concurring).

I concur in granting the writ and quashing the Commission’s orders, but I would not remand for further proceeding. Executive has had an ample opportunity to prove its case. The record it has generated is so completely devoid of probative evidence to support the Commission’s finding of public convenience and necessity that I would conclude these proceedings now.

      . The hearing examiner pointed up several problems with the application, in his recommendation :
      Although it proposes three round trips daily between Miami and Palm Beach, serving Miami Beach, Hollywood, Ft. Lau-derdale, Pompano, Boca Baton, Delray Beach, Lake Worth and West Palm Beach on each trip, it has no firm plans for terminal locations, has obtained no municipal approvals to stop on city street corners and is presently looking for space to put its offices, fuel pumps and repair shop. If this application is granted, applicant would commence operations with mini-buses driven by bilingual drivers. Further elaboration about the applicant is difficult as the ap-licant’s officers were vague as to its corporate make-up and had no real knowledge of its financial composition. For example, Guy Jones claims to have been president of the applicant corporation since December 10, 1973, but the sworn application reflects Bichard B. Austin as president on December 10, 1973 (See Bule 25-5.07, F.A.O.). Besides having no ready understanding of its own corporate and financial matters, the applicant seemed reluctant to apprise this Commission of details in several areas. For example, during the hearing, the vice-president ran from the room rather than voluntarily receive service of a subpoena requiring production of books and records of corporations pertaining to applicant’s structure ; on another occasion he refused to answer a question concerning applicant’s policy regarding withholding social security from drivers’ paychecks.

      . The hearing examiner found, as follows:
      Greyhound has present authority from this Commission to operate over the exact route proposed by applicant. To serve that route as well as the rest of the state, it keeps many buses, drivers and facilities. Examination of the applicant’s schedules shows each trip leaving at nearly the same time as Greyhound and every departure is always sandwiched among at least two Greyhound departures. Further, Greyhound often offers passengers the choice of express service along a portion of the trip. For example, applicant’s 10:10 a. m. bus from Palm Beach is preceded by two Greyhounds : a local and an express to Miami that both leave at 9:30 a. m. After that, Greyhound has a local and an express to Miami at 11:15 a. m. and 11:25 a. m. respectively. Comparison of the rest of the times would reveal similar duplicative schedules.
      In Order No. 11755, the commission concluded:
      The only need shown by the applicant for regular route authority between Miami and Palm Beach is for transportation performed in buses whose drivers speak Spanish.


author: BOYD, Judge.

text:
    STATE of Florida, Petitioner, v. Leon Norman BURGESS, Respondent.
    No. 47477.
    Supreme Court of Florida.
    Jan. 7, 1976.
    Rehearing Denied Feb. 17, 1976.
    Robert L. Shevin, Atty. Gen., and Charles Corees, Jr., Asst. Atty. Gen., for petitioner.
    Jack O. Johnson, Public Defender, and Dennis Maloney, Asst. Public Defender, for respondent.
    John A. Madigan, Jr., and Jack M. Skelding, Jr., of Madigan, Parker, Gatlin, Truett & Swedmark, Tallahassee, for the Florida Sheriffs Ass’n amicus curiae.
   BOYD, Judge.

As authorized by Article V, Section 3(b)(3), Florida Constitution, this matter came to this Court as a certified question of great public interest.

The question is as follows:

“May one forcefully resist an unlawful arrest by a person whom he knows or has reason to know to be an authorized police officer ?”

The record shows Respondent was charged with resisting arrest with violence but submitted a nolo contendere plea to a lesser offense of resisting arrest without violence. Since the guilty plea was accepted by the court to a lesser offense, we deem it inappropriate to issue our opinion in response to the certified question relating to resisting arrest with violence.

Accordingly, we respectfully decline to answer the question propounded by the District Court.

It is so ordered.

ADKINS, C. J., and OVERTON, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

      . 313 So.2d 479 (Fla.App.1975).


author: PER CURIAM.

text:
    PALM BAY TOWERS CORPORATION, Appellant, v. CRAIN & CROUSE, INC., Appellee. McCloskey & CO., INC., Appellant, v. CRAIN & CROUSE, INC., Appellee.
    Nos. 74-300, 74-333.
    District Court of Appeal of Florida, Third District.
    Feb. 18, 1976.
    Katz & Rosen, Coconut Grove, for Palm Bay.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for McCloskey.
    Knight, Peters, Hoeveler, Pickle, Nie-moeller & Flynn, Miami, Richard H. W. Maloy and Richard J. Burton, Coral Gables, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   ORDER ON MANDATE

PER CURIAM.

Whereas, the judgment of this court was entered in this cause on October 29, 1974 (303 So.2d 380) affirming in part and reversing in part the judgment of the Circuit Court of Dade County, Florida, in the above styled cause; and

Whereas, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed January 7, 1976 (326 So.2d 182) and mandate now lodged in this court, quashed this court’s judgment and remanded the cause with directions;

Now, therefore, It is Ordered that the mandate of this court heretofore issued in this cause on December 9, 1974 is withdrawn, the judgment of this court filed October 29, 1974 insofar as it is inconsistent with the opinion and judgment of the Supreme Court of Florida is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the judgment of the trial court is reinstated and affirmed as to the negligence of appel-lee Crain and Crouse, Inc. Costs allowed shall be taxed in the trial court (Rule 3.-16b, F.A.R.).


text:
    STATE of Florida, Appellant (State), v. Gustavo BENITEZ, Appellee (Defendant).
    No. X-456.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1976.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellant.
    William L. Camper of Huey & Camper, Tallahassee, for appellee.
   PER CURIAM.

■ Upon considering the briefs and the record, the interlocutory appeal is granted, and the order of the trial court granting the defendant’s motion to suppress is reversed on authority of State v. Laiser, 322 So.2d 490 (Fla.1975). This case is remanded for further appropriate proceedings.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    The STATE of Florida ex rel. Milton SIMONDS, Relator, v. The Honorable W. Troy HALL, Jr., as Judge of the Circuit Court of the Fifth Judicial Circuit In and for Lake County, Florida, Respondent.
    No. 75-1621.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 1976.
    Jack O. Johnson, Public Defender, and Steven H. Denman, Asst. Public Defender, Bartow, for relator.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for respondent.
   ON PETITION FOR REHEARING

PER CURIAM.

This court previously denied this petition for prohibition because the case had not been set for trial. The petition for rehearing filed by relator has persuaded us that the failure to set the case for trial does not prevent this court from deciding the speedy trial question presented by this petition for prohibition after relator’s motion for discharge by the trial court has been denied.

Relator was convicted of rape, kidnapping, robbery, and entering without breaking with intent to commit a felony, and appealed to this court, raising several points on appeal. This court reversed on one point relating to the admissibility of a psychiatrist’s testimony as to relator’s sanity at the time of the crimes, and remanded for a new trial, finding the other points without merit. Our mandate issued on January 7, 1975. The state timely petitioned for certiorari to the Florida Supreme Court, but its application was filed after the fifteen day automatic stay provision of FAR 4.5c(6). Simonds cross-petitioned for certiorari, claiming the first trial was untimely and that he should be discharged rather than retried. The state later moved for a stay in the Supreme Court which was denied. The Supreme Court denied the petition and cross-petition on July 17, 1975. State v. Simonds, Fla. 1975, 316 So.2d 293.

On July 18, 1975, the state petitioned in the trial court for a sixty day extension within which to bring Simonds for trial and for an order to return him from prison for trial. Simonds, however, contended that the ninety day speedy trial time set forth in RCrP 3.191(g) had begun to run on January 7, 1975, .and the state was barred from retrial. Accordingly, Simonds opposed the petition to order him returned for trial and also moved for discharge.

Simonds’ arguments evidently persuaded the trial court, which denied the state’s motions for extension and for order returning defendant to trial on September 11, 1975. Simonds’ motion for discharge, however, was not ruled on at that time but was ultimately denied by another circuit judge on October 9, 1975. Defendant sought prohibition in this court on November 13, 1975, and we issued a rule to show cause on November 17,1975.

RCrP 3.191(g) provides'that a person who is to be tried again shall be brought to trial within ninety days from the mandate of the appellate court. Obviously, relator was not tried within ninety days of this court’s mandate on January 7, 1975. Had the state taken certiorari to the Florida Supreme Court within fifteen days, an automatic stay would have issued, but this was not the case. We are faced with the question, then, of the effect of Si-monds’ cross-petition for certiorari in the Florida Supreme Court. Obviously, if cross-petitioner had prevailed in the Supreme Court, any retrial would have been void. As far as relator was concerned, the appellate proceedings begun by his appeal to this court had not terminated. To require the state to proceed to a new trial while relator was contesting the very validity of such new trial in the appellate courts would be to give the provisions of the speedy trial rule an interpretation beyond the purpose of its enactment. We hold here that while relator was affirmatively seeking relief in the Supreme Court, he was not continuously available for trial within the meaning of RCrP 3.191(a)(1).

When the Supreme Court denied relator’s cross-petition for certiorari on July 17, 1975, the ninety day provision of RCrP 3.191(g) became applicable. The state promptly moved to set the case down for trial well within ninety days from the Supreme Court mandate and sought to have the defendant returned for such trial. That the case was not ultimately tried within ninety days from the Supreme Court mandate was in large part due to the opposition of relator who contended that the speedy trial rule had already run. Relator was still not ready for trial within the contemplation of the speedy trial rule.

Thus, the time for trial had not run by the time this court entered its rule nisi on this suggestion on November 17, 1975. The suggestion for writ of prohibition must be, and is hereby, denied and the rule previously issued is discharged. In view of the length of time that has expired from relator’s first trial, not all of which may be entirely attributable to relator, the trial court shall set relator’s new trial within thirty days of the date this opinion becomes final.

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

      . Simonds v. State, Fla.App.2d, 1974, 304 So.2d 525.

      . See FAR 4.5c (6).

      . We hereby recede from any dicta to the contrary in Esperti v. State, Fla.App.2d, 1973, 276 So.2d 58.

      . Rubiera v. Dade County ex rel. Benitez, Fla.1974, 305 So.2d 161.

      . See RCrP 3.191(a)(1); RCrP 3.191(d) (2) (iv) ; RCrP 3.191(e).


author: McCORD, Judge.

text:
    In the Interest of E. G., a child, Appellant, v. STATE of Florida, Appellee.
    No. X-203.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1976.
    Richard W. Ervin, III, Public Defender, and Craig M. Dickinson, Assistant Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

By petition the State charged that appellant, a child of seventeen years, was a delinquent child in that she engaged in prostitution in violation of § 796.07(3) (a), Florida Statutes. The trial judge found her not guilty of prostitution but guilty of “a lesser included offense, disorderly conduct” and entered an order withholding adjudication of delinquency and placing her on probation. Appellant contends that disorderly conduct is not a lesser included offense to the offense of prostitution and further contends that the evidence introduced at trial was insufficient to support a verdict of guilty to the charge of disorderly conduct.

The petition charged that appellant “did then and there offer to commit, or engage in giving or receiving of the body for sexual intercourse for hire, contrary to § 796.-07(3) (a), Florida Statutes.” The foregoing statute states:

“(3) It shall further be unlawful in the state:
(a) To offer to commit, or to commit, or to engage in, prostitution, lewdness or assignation.”

Prostitution is defined by subsection (1) (a) of said section as follows:

“The term ‘prostitution’ shall be construed to include the giving or receiving of the body for sexual intercourse for hire, and shall also be construed to include the giving or receiving of the body for licentious sexual intercourse without hire.”

Section 877.03, Florida Statutes, defines breach of the peace and disorderly conduct as follows:

“Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree . . . ”

While it would appear that one engaging in prostitution would at the same time be committing “such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency” and that in such sense disorderly conduct would be included in a charge of prostitution, the evidence in this case admits to nothing more than that appellant allegedly engaged in prostitution in a quiet and orderly manner. Since the trial judge found her not guilty of prostitution, his finding that she was guilty of disorderly conduct is inconsistent with his first finding. Because the evidence relates solely to prostitution and shows nothing beyond prostitution, if appellant is not guilty of prostitution, she is likewise not guilty of disorderly conduct.

It is apparent from the record that although the trial judge did not find appellant guilty of prostitution, he considered that the facts warranted supervision. He stated on the record that if he found under the law that he could not find appellant guilty of disorderly conduct, he “would request a petition for a child in need of supervision be filed.” We agree that the evidence shows that the child is in need of supervision but such cannot legally be accomplished here by a finding of guilt under the disorderly conduct statute.

Reversed.

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


text:
    GENERAL GUARANTY INSURANCE COMPANY, Appellant, v. SUNRISE NURSING HOMES, INC. and Universal Mechanical Contractors, Inc., Appellees.
    No. 75-1112.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 1976.

      William R. Ryan, of Duggar & Ryan, St. Petersburg, for appellant.
    Edward Michael Walsh, St. Petersburg, for appellee Universal Mechanical Contractors, Inc.
   PER CURIAM.

General Guaranty Insurance Company (General Guaranty), appellant/defendant, brings this appeal from a final summary judgment entered against it and Sunrise Nursing Homes, Inc. (Sunrise), appel-lee/ co-defendant.

On January 11, 1971, Universal Mechanical Contractors (Universal) sued Sunrise and General Guaranty. The complaint alleged that Universal, pursuant to a written contract, had provided labor and material improving real property belonging to Sunrise and that a sum of $8,692.09 for work done and material furnished remained unpaid. According to the allegations contained in the complaint a claim of lien was filed on July 10, 1969. A lien bond was executed on August 28, 1969, with General Guaranty acting as a surety. From this point the cause proceeded very slowly. Subsequently, on December 10, 1973, Universal movéd for a summary judgment against General Guaranty. Universal also filed a motion for a default judgment against Sunrise after Sunrise failed to respond to the amended complaint. A hearing was held on all pending motions, but counsel for General Guaranty failed to appear. On January 16, 1974, a default judgment against Sunrise and a final summary judgment against General Guaranty were granted. A motion for rehearing was filed and, after hearing, denied. This timely appeal followed.

Upon review of the record and the briefs, we reverse on the ground that the trial court erred in granting the final summary judgment.

Universal’s complaint shows on its face that its claim of' lien was filed more than one year prior to the filing of its complaint. Since no claim of lien continues viable for more than a year after filing, the complaint affirmatively shows that Universal was not entitled to a summary judgment. In fact its action was commenced some 18 months after its claim of lien was filed. When a lien is transferred to a bond an action to enforce the transferred lien must commence within the time specified for action on the lien itself. See Fla.Stat. § 713.24(4), which provides in pertinent part:

If no proceeding to enforce a transferred lien shall be commenced within the time specified in § 713.22 the clerk shall return said security upon request of the person depositing or filing the same, or the insurer.

This opinion is not to be construed as passing on the merits. It does not preclude Universal from later raising matters that may show it is entitled to a judgment despite the fact that this action was not filed within the time period prescribed in § 713.24(4), Fla.Stat.

Reversed and remanded for further proceedings in accordance with this opinion.

HOBSON, Acting C. J., and BOARD-MAN and SCHEB, JJ., concur.


text:
    Michael ROCHE, Appellant, v. STATE of Florida, Appellee.
    No. 75-374.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 1976.
    Jack O. Johnson, Public Defender, and Dennis P. Maloney, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was convicted of sale and possession of marijuana and timely appeals.

We are presented with two points on ap: peal, only one of which we deem necessary to discuss. It is appellant’s contention that it was error for the trial court to allow into evidence, in the state’s case in chief, testimony as to appellant’s prior criminal conduct over defense counsel’s timely objection. We agree with appellant’s contention and reverse.

At trial a confidential informant testified that he had purchased marijuana from the appellant and that the transaction had been recorded by means of a microphone concealed on his person. During direct examination of the informant, the prosecutor asked the witness if he had ever purchased marijuana from appellant before, and the witness replied, “Yes, I have.” Appellant’s counsel objected on the ground that the state had not laid the proper predicate for this question. The objection was overruled. This testimony presented no information relevant to the issue of appellant’s identity or commission of the offense charged and showed only his propensity to sell marijuana. In Duncan v. State, 291 So.2d 241, cert. den. Fla.1974, 297 So.2d 833, this court, in ruling such evidence inadmissible, held:

. Mere similarity of offenses, without regard to the singular manner of their perpetration, is not enough.

The rule governing the admissibility of evidence of collateral crimes is set forth in Williams v. State, Fla.1959, 110 So.2d 654; see, also Duncan v. State, supra. Such evidence is admissible if it is relevant to any factual issue, unless it tends solely to prove bad character or propensity to commit a crime. In Franklin v. State, Fla.App.3d, 1969, 229 So.2d 892, it was held that the burden of showing that the evidence ought to be excluded rests on the defendant. However, once the defendant meets that burden by objection to the proffered evidence on the ground that its sole effect is to prove criminal propensity, the burden then shifts to the state to show that the evidence is relevant to a factual issue in the case. Failure of the prosecution to meet this burden in the Franklin case was ground for reversal. Our supreme court approved this refinement of the Williams rule in State v. Davis, Fla.1974, 290 So.2d 30.

In the instant case, appellant, w.e submit, met his burden when he objected to the state’s question relating to appellant’s prior misconduct and urged that the state had not laid a predicate for this testimony. No showing was made by the state to indicate that the evidence was relevant to any factual issue in the case.

Accordingly, on the authority of Franklin v. State, supra, the judgment and sentence are hereby reversed and the cause is remanded to the trial court for a new trial.

HOBSON, A. C. J., and BOARDMAN and SCHEB, JJ., concur.


author: MAGER, Judge.

text:
    AIR FLOW HEATING AND AIR CONDITIONING, INC., et al., Appellants, v. Thompson S. BAKER et al., Appellees.
    No. 75-1401.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.
    Rehearing Denied March 4, 1976.

      Deno P. Dikeou of Baldwin & Dikeou, Casselberry, for appellants.
    Ronald P. Teevan and John M. Robertson of Law Offices of Robertson, Williams, Duane & Lewis, P. A., Orlando, for appellee Baker.
   MAGER, Judge.

The question presented in this interlocutory appeal is the correctness of the trial court’s determination that the mortgage lien of the plaintiffs-appellees was superior to the mechanic’s liens of the defendants-appellants.

The question is one of priorities between recorded instruments — the mortgage recording versus the lien recording.

The salient facts reveal that plaintiffs-appellees (Trustees of Barnett Mortgage Trust) sought to foreclose a mortgage on real property situate in Orange County, Florida. The mortgage had been filed and recorded by plaintiffs-appellees on July 19, 1973, said mortgage appearing in Official Records Book 2431, at pages 1559-1577, public records of Orange County. The mortgage did not contain a legal description of the property sought to be secured. In particular, the reference to the mortgaged property in the mortgage was set forth as follows:

“(A) THE LAND, All the land located in the County of Orange, State of Florida (the ‘Land’), described in Exhibit ‘A’ attached hereto and made a part hereof;

The “Exhibit ‘A’ ” referred to in the mortgage was not attached and was not filed on July 19, 1973..."

On the same date, July 19, 1973, the owners-mortgagors of said property, defendants below and appellees herein, filed and recorded a Notice of Commencement (of improvement to the subject real property) pursuant to sec. 713.13(1), F.S., Mechanic’s Lien Law, which notice was recorded in O.R. Public Book 2431, at page 1598, of the public records of Orange County.

On July 26, 1973, the plaintiffs-appellees re-recorded the original mortgage setting forth on the face of said re-recorded mortgage that:

“CORRECTIVE MORTGAGE:
THIS MORTGAGE IS BEING RERECORDED TO INCLUDE EXHIBIT ‘A’ WHICH WAS OMITTED IN ORIGINAL RECORDING.”

On various and sundry dates in the. summer and fall of 1974 the appellants properly filed and recorded their claims of lien. It is apparently undisputed that the liens in question were of the type described in sections 713.05 and 713.06, F.S. It is also undisputed that liens under sections 713.05 and 713.06 “attach and take priority as of the time of recordation of the notice of commencement . . sec. 713.07, F.S.

It is the contention of the appellants that the recording of the mortgage by appellees on July 19, 1973, did not constitute constructive notice so as to take priority over the mechanic’s liens recorded later on the same date because of the absence of the legal description of the property subject to the mortgage which description did not become a matter of record until July 26, 1973, a date subsequent to the notice of commencement.

It is the contention of the appellees that the mortgage recorded on July 19, 1973, contained language therein reflecting the existence of a loan agreement between the mortgagor and mortgagee which loan agreement was specifically incorporated by reference into the mortgage document and which loan agreement contained and supplied the omitted legal description referred to as “Exhibit ‘A’ ” which was not attached to the original mortgage.

Upon review of the applicable authorities and consideration of the facts herein we are of the opinion that the mortgage was not properly recorded in July 19, 1973, so as' to impart constructive notice to subsequent purchasers and encumbrancers and hence was not superior to the mechanic’s liens which took priority as of July 19, 1973; it was not until July 26, 1973, when the mortgage was re-recorded with the proper description that constructive notice was created.

Where land intended to be mortgaged cannot be identified because of a lack of description the mortgage is ineffective unless it is reformed. Fla. Bank & Trust Co. of West Palm Beach v. Ocean & Lake Realty Co., 118 Fla. 695, 160 So. 1 (1935). Therefore, recording a mortgage with no description imparts notice of nothing and defeats the very effect and purpose of recordation. See 28 Fla.Jur., Records and Recording Acts, §§ 42, 44, 52.

We are not unmindful of the proposition that reference may be made in a recorded document to a deed or other document for the purpose of aiding any defect or uncertainty created by the recorded instrument. Sapp v. Warner, 105 Fla. 245, 141 So. 124, 143 So. 648, 144 So. 481 (1932); Gradolph v. Ricou, 104 Fla. 237, 139 So. 579 (1932). A creditor or encum-brancer is thereby placed on notice by the reference to such other deed or document to the extent that there is a duty to make further inquiry of that deed or unrecorded document. If a reasonable and prudent person would be apprised of the existence of a right by reference to another document or if reference to another document can supply what clearly and reasonably appears to be an omission or defect in an essential part of the recorded instrument then notice is presumed as a matter of “implied” actual notice. See Sapp v. Warner, supra.

However, the reference to the existence of another deed or unrecorded document must be specific not only in terms of identifying the other deed or document with particularity but in putting a reasonable person on notice of the need to make reference to such other deed or unrecorded document. Cf. Gradolph v. Ricou, supra.

In the instant case the language appearing on the face of the mortgage under the heading “The Land” wherein the description would be set forth, refers only to an “attached Exhibit A”, which Was not attached. There is no reference whatsoever to any other deed or document recorded or unrecorded. Compare with Gradolph v. Ricou, supra. There is no^ indication to any prudent and reasonable person that the omitted legal description was intended to be supplied by reference to some other document.

The only place where reference to another document appears is under the heading “BREACH OF LOAN AGREEMENT AND OTHER DOCUMENTS” contained in one of the later provisions of the recorded mortgage. The language creating the reference relates to the default by the mortgagor and the options available to the mortgagee in the event of a breach by the mortgagor “of any covenant contained in this Mortgage, the Note, or in the Loan Agreement between Mortgagor and Mortgagee, which Loan Agreement is, by this reference, herein incorporated to the same extent and effect as though it were set forth herein in full . . .”.

Conceding that the loan agreement contained a description of the mortgaged property, reference to that agreement in the recorded mortgage document in the context described above would not create a duty upon a reasonable person to make further inquiry about the missing legal description or reasonably suggest that in order to locate such description it would be necessary to refer to the loan agreement (presumably available in the office of the mortgagee). We have not been shown nor has our research revealed any reported case in this or any other jurisdiction where a legal description of property which was omitted from a recorded mortgage could be supplied by a general reference to another document such reference being for a purpose unrelated to the legal description. It would require a strained interpretation of the recording law to sanction the imparting of notice — constructive or implied — under these factual circumstances.

Accordingly, that portion of the trial court’s order holding “that the liens of the lienors are' not superior to the mortgage sought to be foreclosed by the plaintiffs” is erroneous and set aside and the cause remanded for further proceedings not inconsistent herewith.

CROSS, J., and FERRIS, JOHN G., Associate Judge, concur.


text:
    George L. MORRIS, Sr., d/b/a Charles Company, Appellant, v. AMERICAN NATIONAL BANK OF JACKSONVILLE, a corporation organized and existing under the laws of the United States of America, Appellee.
    No. Y-250.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1976.
    Aldo Icardi, Winter Park, for appellant.
    William Akers, III, Ormond Beach, Noah C. McKinnon, Jr., Coble, McKinnon, Reynolds & Rothert, Daytona Beach, for appel-lee.
   PER CURIAM.

Upon considering the briefs and.the record, we find no reversible error.

Accordingly, the final judgment is affirmed.

BOYER, C. J., and MILLS and Mc-CORD, TJ., concur.


text:
    Henry Monts DeOCA, Appellant, v. STATE of Florida, Appellee.
    No. 75-203.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1976.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

A review of the proceedings below reveals that the learned trial judge failed to follow the provisions of Rule 3.710, FRCrP, which provides, in part, that no sentence shall be imposed upon a defendant found guilty of a first felony offense until a pre-sentence investigation and recommendation has been received and considered by the sentencing judge. Davenport v. State, Fla.App.1st, 1975, 317 So.2d 851; Buckles v. State, Fla.App.1st, 1975, 310 So.2d 748. Since the error was a defect in sentencing the judgment is affirmed, the sentence vacated and the cause is remanded with directions to conduct a pre-sen-tence investigation pursuant to Rule 3.710 followed by further proceedings consistent herewith.

WALDEN, C. J., and MAGER and DOWNEY, JJ., concur.


text:
    Charletha GROOMS, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-445.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1976.
    Richard W. Ervin, III, Public Defender, Louis G. Carres, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: McCORD, Judge. BOYER, Chief Judge

text:
    William Cowan VAL BOSTWICK, Jr., et al., Appellants, v. ESTATE of Nell L. COWAN, Deceased, Appellee.
    Nos. Z-281 and Z-244.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1976.
    Charles C. Howell, Jr., Howell & Sear-cy, Jacksonville, for appellants.
    William C. Bostwick, William L. Dur-den, Chester Bedell, A. B. Blackburn, Jr., Virginia Q. Beverly and J. D. Raye, Jacksonville, for appellee.
   McCORD, Judge.

This is a motion by appellees to strike appellants’ first assignment of error on the ground that the order sought to be reviewed by that assignment was a final order and the time within which review could be taken from it has passed. The order sought to be reviewed by the first assignment was an order filed in the estate on April 12, 1971, which approved a settlement agreement between the parties and dismissed with prejudice Anne Bostwick’s petition to revoke probate of the Will. We agree with appellees’ contention that this was a final order from which 30 days was allowed for appeal by Rule 3.2(b), Florida Appellate Rules. It was an order finally determining the rights of the parties in the administration of the estate of the decedent from which an appeal could have been taken (§ 732.15, Florida Statutes; Rule 5.100, Florida Probate and Guardianship Rules). A probate court is not precluded in a proper case, however, from relieving a party from a final judgment or order under Rule 1.540, Florida Rules of Civil Procedure, upon the grounds and within the time limits set forth therein. In this connection, see also Padgett v. Estate of Padgett, Fla.App. (1st), 318 So. 2d 484, and the cases cited there. Whether or not the alleged errors assigned by appellants’ remaining assignments of error fall within any of the provisions of Rule 1.540 must remain for determination on the merits of this appeal, and we make no ruling thereon here. We simply rule here that appellants may not assign as error the entry by the probate judge of an order which has become final. The motion to strike appellants’ first assignment of error is granted and such assignment is stricken..

MILLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I respectfully dissent. In my view the motion to strike appellant’s first assignment of error should not be granted. I am persuaded by In re Will of Wickman, Fla.App.2nd 1974, 289 So.2d 788, which, in my view, is analogous.


text:
    In the Interest of D. O. C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 75-425.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1976.
    Richard L. Jorandby, Public Defender, Bruce Zeidel and Mitchell Beers, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review of the record on appeal and after consideration of the briefs and oral argument of counsel for the respective parties, we determine that the evidence presented by the state was not sufficient to support á finding that appellant was in possession of a concealed firearm. Therefore, the trial court erred in denying appellant’s motion for a judgment of acquittal.

Accordingly, the order adjudging appellant a delinquent child is reversed, and the cause is remanded with directions to dismiss the complaint and discharge the appellant, D. O. C., a child.

CROSS and MAGER, JJ., and FERRIS, JOHN G., Associate Judge, concur.


author: OWEN, Judge.

text:
    Claude ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 75-325.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1976.
    Richard L. Jorandby, Public Defender, and James R. Bean, III, Asst. Public' Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Using a handgun, appellant shot and killed one person and wounded another. As a result he was convicted on a two-count information of (1) second degree murder, and (2) assault with intent to commit murder in the second degree.

Appellant raised as a defense insanity at the time of the offense, and in support thereof offered evidence sufficient to raise a reasonable doubt as to his sanity. Appellant contends that the State’s evidence was not sufficient to meet its burden of proving beyond a reasonable doubt appellant’s sanity at the time of the offense. The evidence on this issue was in conflict and presented an issue for the jury. Our review of the record satisfies us that there was sufficient competent evidence to support the jury’s verdict. French v. State, 266 So.2d 51 (3rd DCA Fla.1972).

Appellant’s remaining points are also without merit and do not require extended discussion. It was not error for the court to fail to declare a mistrial on its own motion because of an improper comment by the prosecutor during the closing argument. Neither was it error for the court to refuse defendant’s requested instruction relating to the defense of insanity, which though a correct statement of the law, was fully covered by the Standard Jury Instruction given by the court on that subj ect.

The judgment and sentences are severally affirmed.

WALDEN, C. J., and MAGER, J., concur.